(jJnrn^U Ham ^rl^anl Hibraty 
 
Cornell University Library 
 KF 1250.P77 1894 
 
 A treatise on the law of to'Tj-f,.'",?,?.',!?,? 
 
 3 1924 019 310 170 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019310170 
 
A TREATISE 
 
 LAW OF TORTS 
 
 IN OBLIGATIONS ARISING FROM CIVIL 
 WRONGS IN THE COMMON LAW. 
 
 BY 
 
 SiE FEBDEEICK POLLOCK, Bart. 
 
 OF LmCOLN'S INN, BAKKI8TER- AT LAW ; 
 
 CORPUS PROFESSOR OP JURISPRUDENCE IN THE UNIVERSITY OF OXFORD; 
 
 LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE; AND 
 
 HONORARY DOCTOR OF LAWS IN THE UNIVERSITIES OF BDINBDRQH AND DUBLIS. 
 
 Author Of " Principles of Contract " " A Digest of the Law of PartTiership,'* (fc. 
 
 NEW AMEBIC AN— FBOM THIRD ENGLISH EDITION. 
 
 ELABORATED WITH NOTES AND REFERENCES TO AMERICAN CASES. 
 
 By JAMES AVERY WEBB, 
 
 Of the Memphis Bar. 
 
 ST. LOUIS: 
 THE F. H. THOMAS LAW BOOK CO. 
 
 1894. 
 
Entered according to Act oJ Congress in the year 1894, by 
 
 THE F. H. THOMAS LAW BOOK CO., 
 In the office of the Librarian of Congress, at Washington. 
 
 St. Zouis, Mo. ; 
 Press of Ifixon- Jones Printing Co. 
 
TO HONOEABLE 
 
 HEI^EY C. CALDWELL 
 
 JUDGE OF THE UNITED STATES CIECUir COURT OF APPEALS OF THE 
 EIGHTH JUDICIAL CIRCUIT. 
 
 Recognizing our indebtedness to you for the suggestion 
 that the text of Pollock on Torts was the foundation of 
 the greatest book ever published on this important branch 
 of the law, we take the liberty to dedicate this American 
 edition to you. In doing so, permit us to express the 
 hope that the notes which have been prepared by our 
 editor may tend to strengthen your exalted opinion of the 
 practical value of this book, which you have so aptly 
 styled " A Legal Classic." 
 
 THE PUBLISHERS. 
 
 (iii) 
 
PEEFACE TO THE NEW AMERICAN EDITION. 
 
 The fact that the English edition of this book was acknowl- 
 edged by distingaished members of the American Bar to 
 be a scholarly treatment of the law of torts, replete with 
 learning, founded on research, and clear in the exposition 
 of the fundameatal principles and explicit in their applica- 
 tion to special cases, led the publishers to believe that an 
 American edition would fill a want long felt by students 
 and practitioners in this country. In annotating this book 
 the editor has not altered the text and notes of the author 
 but has added such notes and references. as seemed perti- 
 nent. The editor's notes are usually arranged under head- 
 ings, either the same or very near the same as those used 
 in the text, so that no diflSculty will be met in identifying 
 by the paragraph headings the connection between the text 
 and the notes. Occasionally American cases upon single 
 phrases or sentences in the text are cited among the English 
 notes. These are inclosed in brackets [ ]. 
 
 Generally, practically all the American cases are cited, 
 but upon a few subjects like " Damages," it was found 
 impracticable to refer to more than the late cases and the 
 leading cases. The agreement or disagreement of the 
 English and American authorities is usually mentioned in 
 the editor's notes and where they are not in harmony the 
 points of difference are specified and briefly discussed. 
 
 J. A. WEBB. 
 
 Memphis, Tenn. 
 April, 1894. 
 
 (V) 
 
TO THE HONOURABLE 
 
 OLIVER WENDELL HOLMES, Junk., 
 
 A JUSTICE OF THE SUPREME JUDICIAL COURT OF THE 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 Mr 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 
 cannot well say in the book itself; by your leave, therefore, 
 I 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 
 enable me to speak more freely and naturally, even in 
 print, than 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 
 Commonwealth, of whom some are known to me only by 
 their published writing, some by commerce of letters ; there 
 are some also, fewer than I could wish, whom I have had 
 the happiness of meeting face to face. 
 
 When I came into your jurisdiction, it was from the 
 Province of Quebec, a part of Her Majesty's dominions 
 which is governed, as you know, by its old French law, 
 
 vii 
 
Viii INTRODUCTION. 
 
 lately repaired and beautified in a sort of Eevised Version 
 of the Code Napoleon. This, I doubt not, is an excellent 
 thing in its place. And it is indubitable that, in a political 
 sense, the English lawyer who travels from Montreal to 
 Boston exchanges the rights of a natural-born subject for 
 the comity accorded by the United States to friendly aliens. 
 But when his eye is caught, in the every-day advertise- 
 ments, 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 endeavored to turn into practical ac- 
 count the lessons of what I saw and heard there, and that 
 this present book is in some measure the outcome of that 
 endeavor. It contains the substance of between two and 
 three years' lectures in the Inns of Court, and nearly every- 
 thing advanced in it has been put into shape after, or con- 
 currently with, free oral exposition and discussion of the 
 leading cases. 
 
 My claim to your good will, 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 superfluous, 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 
 reasonable 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 mod- 
 
INTRODUCTION. IX 
 
 ern. The earliest text-book 1 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, remark- 
 able chiefly for the depths of historical ignorance which it 
 occasionally reveals. The really scientific treatment of 
 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 with us.* It were impertinent to 
 weigh too nicely the fame of living masters; but I think we 
 may securely anticipate posterity in ranking the names of 
 these (and I am sure we cannot more greatly honor them) 
 with the name of their colleague Willes, a consummate 
 lawyer too early cut off, who did not live to see the full 
 fruit of his labor. 
 
 Those who knew Mr. Justice Willes will need no explana- 
 tion of this book being dedicated to his memory. But for 
 others I will say that he was not only a man of profound 
 learning in the law, joined with extraordinary and varied 
 knowledge of other kinds, but one of those whose knowl- 
 edge 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, and to pursue the history of the 
 law in authorities which not so long ago were collectively 
 and compendiously despised as "black letter." It is 
 strange to think that Manning was as one crying in the 
 wilderness, and that even Kent dismissed the Year Books 
 as of doubtful value for any purpose, and certainly not 
 worth reprinting. You have had a noble revenge in edit- 
 ing Kent, and perhaps the laugh is on our side by this time. 
 
 • We have now (1892) to lament the loss of Lord Bramwell. 
 
X INTRODUCTION. 
 
 But if any man still finds offence, you and I are incorrigi- 
 ble 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 
 desiring to see the Law of Obligations methodically treated 
 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 treatise 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. ^s to other readers, I will hope that some 
 students may be thankful for brevity where the conclusions 
 are brief, and that, where a favourite topic has invited ex- 
 patiation 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, yours very truly, 
 
 - FREDERICK POLLOCK. 
 
 LiscoLxs Inn, 
 Christmas Vacation, 1S86. 
 
TABLE OF CONTENTS. 
 
 Book I. 
 GENERAL FART. 
 
 CHAPTER I. 
 
 THE NATURE OF TORT IN GENERAL. 
 
 Page 1. Absence of authoritative definition. 
 2. Historical distinctions. 
 7. Personal wrongs. 
 7. Wrongs to property. 
 
 7. Wrongs affecting person and property. 
 
 8. Wilful wrongs. 
 
 9. Wrongs unconnected with moral blame. 
 11. Wrongs of imprudence and omissjon. 
 
 13. Historical anomaly of law of trespass and conversion. 
 13. Early forms of action. 
 
 16. Rationalized version of*law of trespass. 
 
 1 7. Analogies of Roman law. 
 
 18. Dolus and Culpa. 
 
 18. Liability quasi ex delicto. 
 
 19. Summary of results. 
 
 CHAPTER II. 
 
 PRINCIPLES OF LIABILITY. 
 
 22. Want of generality in early law. 
 
 23. General duty not to do harm in modem law. 
 
 24. Breach of specific legal duty. 
 
 25. Duty of respecting property. 
 
 25. Duties of diligence. 
 
 26. Assumption of skill. 
 
 28. Exception of action under necessity. 
 
 xi 
 
XI 1 TABLE OF CONTENTS. 
 
 Page 29. Liability in relation to consequences of act or default. 
 
 31. Measure of damages. 
 
 32. " Immediate cause." 
 
 33. Liability for consequences of wilful act. 
 
 35. "Natural consequences." 
 
 36. " Natural and probable " consequence. 
 
 40. Liability for consequences of trespass. 
 
 41. Consequences too remote. 
 
 42. Liability for negligence. 
 
 49. Contrasted cases of non-liability and liability: Cox w. Burbidge; 
 Lee V. Riley. 
 
 49. Metropolitan Kail. Co. v. Jackson. 
 
 50. Non-Uability for consequences of unusual state of things: 
 
 Blyth V. Birmingham Waterworks Co. 
 
 51. Sharp 1). Powell. 
 
 52. Whether same rule holds for consequences of wilful wrong: 
 
 Clark V. Chambers. 
 54. Consequences natural in kind though not in circumstance. 
 54. Damages for " nervous or mental shock." 
 
 CHAPTER IIL 
 
 PERSONS AFFECTED BY TORTS. 
 
 1. Limitations of Personal Capacity. 
 
 58. Personal status ijnmaterial in law of tort: but capacity 
 
 material. 
 
 59. Exceptions : Convicts and aliens. 
 
 60. Infants. 
 
 63. Married women : the common law. 
 
 65. Married Women's Property Act, 1882. 
 
 66. Common law liability of infants and married women. 
 66. Corporations. 
 
 69. Responsibility of public bodies for management of works under 
 their control. 
 
 2. Effect of a Party's Death. 
 
 71. Actio personalis moritur cum persona. 
 
 74. Qu. of the extension of the rule in Osbom v. Gillett. 
 
 75. Exceptions: Statutes of Edw. III. giving executors riwht of 
 
 suit for trespasses. 
 
 76. Of'^Ul. IV. as to injuries to property. 
 
 76. No right of action for damage to personal estate consequential 
 
 on personal injury. 
 
 77. Lord Campbell's Act: rights created by it. 
 
TABLE OF CONTENTS. xiu 
 
 Page 78. Construction. 
 
 79. Interests of survivors distinct. 
 
 80. Statutory cause of action is in substitution not cumulative. 
 
 80. Scott'sh and American laws. 
 
 81. Right to follow property wrongfully taken or converted. 
 
 83. Rule limited to recovery of specific property or its value: 
 
 Phillips V. Homfray. 
 
 3. Liability for the Torts of Agents and Servants. 
 
 84. Command of principal does not excuse agent's wrong. 
 
 85. Cases of special duty, absolute or in nature of warranty, 
 
 distinguished. 
 
 86. Modes of liability for vwongful acts of others. 
 
 87. Command and ratification. 
 
 88. Master and servant. 
 
 89. Reason of master's liability. 
 
 90. Who is a servant. 
 
 94. Specific assumption of control. 
 
 95. Temporary transfer of service. 
 
 96. " Power of controlling the work " explained. 
 
 97. What is in course of employment. 
 
 98. (a) Execution of specific orders. 
 
 98. (b) Negligence in conduct of master's business. 
 
 100. Departure or deviation from master's business. 
 
 103. (c) Excess or mistake in execution of authority. 
 
 104. Interference with passengers by guards, etc. 
 
 106. Arrest of supposed offenders. 
 
 107. Act wholly outside authority: master not liable. 
 109. Cd) Wilful trespasses, etc., for master's purposes. 
 112. Fraud of agent or servant. 
 
 114. Liability of firm for fraud of a partner. 
 
 115. Injuries to servants by fault of fellow-servants, 
 lis. Common law rule of master's unmunity. 
 
 116. Reason given iu the later cases. 
 
 118. Servants need not be about same kind of work. 
 
 119. Provided there is a general common object. 
 121. Relative rank of servants Immaterial. 
 
 126. Servants of sub-contractor. 
 
 126. Volunteer assistant on same footing as servant. 
 
 127. Exception where master interferes in person. 
 
 127. Employers' Liability Act, 1880. 
 
 128. Resulting complication of the law. 
 
Xiv ■ TABLE OF CONTENTS. 
 
 CHAPTEE IV. 
 GENERAL EXCEPTIONS. 
 
 Page 130. Conditions excluding liability for act prima facie wrongful 
 
 131. General and particular exceptions. 
 
 1. Acts of State 
 
 132. Acts of state. 
 
 133. General ground of exemption. 
 
 135. Local actions against viceroy or governor. 
 
 135. Power to exclude aliens. 
 
 136. Acts of foreign powers. 
 
 137. Summary. 
 
 2. Judicial Acts. 
 
 138. Judicial acts. 
 
 140. Liability by statute in special cases . 
 
 140, Judicial acts of persons not judges. 
 
 3. Executive Acts. 
 
 141. Executive acts. 
 
 143. Acts of naval and military oflScers. 
 
 144. Of other public autliorities. 
 
 145. Indian Act XVIII. of 1850. 
 
 4. Quasi-judicial Acts. 
 
 145. Acts of quasi-judicial discretion. 
 
 146. Eules to be observed. 
 
 148. Absolute discretionary powers. 
 
 148. Whether duty judicial or ministerial : Ashby ». White. 
 
 5. Parental and Quasi-parental Authority. 
 
 149. Authority of parents. 
 
 150. Of custodians of lunatics. 
 
 6. Authorities of Necessity. 
 
 151. Of the master of a ship. 
 
 7. Damage Incident to Authorized Acts. 
 
 152. Damage incidentally resulting from lawful act. 
 
 154. Damage from execution of authorized works. 
 
 155. No action for unavoidable damage. 
 
 ■ 157. Care and caution required in exercise of discretionary powers. 
 
TABLE OF CONTENTS. XV 
 
 8. Inevitable Accident. 
 
 Page 160. Inevitable accident resulting from lawful act. 
 161. On principle such act excludes liability. 
 
 163. Apparent conflict of authorities. 
 
 164. American decisions: TheNitro-Glycerine Case (Sup. Ct. D. S.) 
 
 166. Brown v. KendaU (Mass.) 
 
 167. Other American cases. 
 
 168. English authorities: cases of trespass and sliooting. 
 171. Cases where exception allowed. 
 
 9. Exercise of Common Bights. 
 
 174. Immunity in exercise of common rights. 
 177. Digging weUs, etc.. In a man's own land. 
 179. Chasemore v. Bichards. 
 179. Other applications of same principle. 
 
 182. Whether malice material in these cases. 
 
 183. Koman doctrine of " animus vicino nocendi." 
 
 184. No exclusive right to names. 
 
 10. Leave and Licence: Volenti non Jit iniuria. 
 
 185. Consent or acceptance of risk. 
 
 186. Express licence. 
 186. Limits of consent. 
 
 190. Licence obtained by fraud. 
 
 190. Extended meaning of voletUi non fit iniuria. 
 
 191. Relation of these cases to inevitable accident. 
 
 192. Knowledge of risk opposed to duty of warning. 
 
 195. Cases between employers and workmen : Smith ». Blafcer. 
 
 197. Distinction where no negligence at all. 
 
 197. Distinction from cases where negligence is ground of action. 
 
 199. • 11. Worlcs of Necessity. 
 
 12. Private Defence. 
 
 201. Self-defence. 
 
 202. Killing of animals in defence of property. 
 
 203. Assertion of rights distinguished from seU-defence. 
 
 204. Injury to third person in self-defence. 
 
 13. Plaintiff a Wrong-doer. 
 
 205. Harm suffered by a wrong-doer. 
 
 208. Sunday travelling: conflict of opinion in U. S. 
 
 208. Cause of action connected with unlawful agreement. 
 
XVI TABLE OF CONTENTS. 
 
 CHAPTER V. 
 OF REMEDIES FOR TORTS. 
 
 Page 209. Diversity of remedies. 
 
 210. Self-help. 
 
 211. Judicial remedies : damages. 
 
 212. Nominal damages. 
 
 214. Nominal damages possible only when an absolute right is 
 
 Infringed. 
 
 215. Oases -where the damage is the gist of the action. 
 217. Peculiarity of law of defamation. 
 
 217. Ordinary damages. 
 219. Exemplary damages. 
 
 222. Analogy of breach of promise of marriage to torts in this 
 respect. 
 
 222. Mitigation of damages. 
 
 223. Concurrent but severable causes of action. 
 
 224. Injunctions. 
 
 226. On what principle granted. 
 
 227. Former concurrent jurisdiction of common law and equity to 
 
 give compensation for fraud. 
 
 228. Special statutory remedies when exclusive. 
 
 230. Joint wrong-doers. 
 
 231. Rules as to contribution and indemnity. 
 
 233. Supposed rule of trespass being "merged In felony." 
 
 236. No known means of enforcing the rule if it exists. 
 
 237. Locality of wrongful act as affecting remedy in English Court. 
 '237. Acts not wrongful by English law. 
 
 238. Acts justified by local law. 
 
 238. Act wrongful by both laws. 
 
 239. Phillips V. Eyre. 
 
 242. Limitation of actions. 
 
 243. Suspension of the statute by disabilities. 
 
 244. From what time action runs. 
 
 245. Special protection of justices, constables, etc. 
 
 245. Exception of concealed fraud. 
 
 246. Conclusion of General Part. 
 
TABLE OF CONTENTS. XVii 
 
 Book II. 
 SPECIFIC WRONGS 
 
 CHAPTER VI. 
 
 PERSONAL WRONGS. 
 
 I. Assault and Battery. 
 Page 247. What is a battery. 
 249. What an assault. 
 252. Excusable acts. 
 255. Self-defence. 
 258. Menace distinguished from assault. 
 
 258. Summary proceedings when a bar to civil action. 
 
 II. False Imprisonment. 
 
 259. What is false imprisonment. 
 
 262. Justification of arrest and imprisonment 
 
 264. Who is answerable. 
 
 267. Reasonable and probable cause. 
 
 III. Injuries in Family Relations. 
 
 269. Protection in personal relations. 
 
 270. Historical accidents of the common law herein. 
 
 270. Trespass for taking away wife, etc., and per qiiod servUium 
 
 amisit. ' 
 
 273. '■ Criminal conversation." 
 
 275. Enticing away servants. 
 
 276. Actions for seduction in modem practice. 
 280. Damages. 
 
 282. Services of young chUd. 
 
 282. Capricious operation of the law. 
 
 283. Constructive servic* in early cases. 
 283. Intimidation of servants and tenants. 
 
 CHAPTER VII. 
 DEFAMATION. 
 
 286. CivU and criminal jurisdiction. 
 286. Slander and libel. 
 
XVIli TABLE OF CONTENTS. 
 
 1. Slander. 
 
 Page 289. ■When slander Is actionable. 
 
 290. Meaning of " prima /acie libellous." 
 
 290. Special damage. 
 
 292. Bepetition of spoken words. ' 
 
 292. Special damage involves definite temporal loss. 
 
 294. Imputation of criminal offence. 
 
 298. Charges of mere immorality not actionable. 
 
 298. Slander of Women Act. 
 
 299. Imputation of contagious disease. 
 
 300. Evil-speaking of a man in the way of his business. 
 
 303. Words indirectly causing damage to a man in his business. 
 
 2. Defamation in General. . 
 
 304. Defamation. 
 
 305. " Implied malice." 
 
 306. What is publication. 
 309. Vicarious publication. 
 
 311. Construction of words : Innuendo. 
 
 314. Libellous tendency must be probable in law and proved in 
 
 fact. 
 
 315. Kepetition and reports may be libellous. 
 
 3. Exceptions. 
 
 317. Exceptions: fair comment. 
 
 320. What is open to comment, matter of law. 
 
 322. Whether comment is fair, matter of fact. 
 
 323. Justification on ground of truth. ' 
 
 325. Must be substantially complete. 
 
 326. Defendant's belief immaterial. 
 
 326. Parliamentary and judicial immunity. 
 
 330. Other persons in judicial proceedings. 
 
 331. Report of officers, etc. 
 
 331. Qualified immunity of " privileged communications." 
 
 332. Conditions of the privilege. 
 
 333. " Express malice." 
 
 335. What are privileged occasions. 
 335. Moral or social duty. 
 
 337. Self-protection. 
 
 338. Information for public good. 
 340. Fair reports. 
 
 840. Parliamentary papers. 
 
 340. Parliamentary debates and judicial proceedings. 
 
 342. Volunteered reports. 
 
 344. Excess of privilege. 
 
TABLE OF COKTEKTS. xix 
 
 Page 344. Honest belief is not necessarily reasonable belief. 
 
 345. Power of jury in assessing damages. 
 
 346. Statutory defences. 
 
 346. Limits of interrogatories in action for libel. 
 
 346. Bad reputation, of plaintiff. 
 
 347. Injunctions. 
 
 CHAPTER VIII. 
 WRONGS OF FRAUD AND MALICE. 
 
 I- Deceit. 
 
 348. Nature flrf the wrong. 
 
 34S. Concurrent jurisdiction of common law and eqnit)-. 
 
 349. DiflSculties of the subject: complication with contract. 
 353. Questions of fraudulent intent. 
 
 355. Fraud of agents. 
 
 355. General conditions of right of action. 
 
 356. (a) Falsehood in fact. 
 
 360. Misrepresentations of law. 
 
 362. Falsehood by garbled statements. 
 
 362. (b) Knowledge or belief of defendant. 
 
 365. Representations subsequently discovered to be 
 untrue. 
 
 367. Reckless assertions. 
 
 368. Breach of special duty to give correct information. 
 
 371. Estoppel. Bitrrowes v. Lock: former supposed 
 
 rule of equity. 
 
 372. (c) Intention of the statement. 
 
 373. Representations to class : Polhill o. Walter. 
 
 373. Denton v. G. N. R. Co. 
 
 374. Peek v. Gumey. 
 
 375. (d) Reliance on the representation, 
 
 377. Means of knowledge immaterial without indepen- 
 
 dent inquiry. 
 
 379. Perfunctory inquiry will not do. 
 
 380. Ambiguous statements. 
 380. (e) Lord Tenterden's Act. 
 
 382. Quaere as to law under Judicature Acts. 
 
 383. Misrepresentation by agents. 
 
 386. LiabUity of corporations herein. 
 
 387. ~ Reason of an apparently hard law. 
 
 II. Slamler of TUle. 
 
 388. Slander of title. 
 
 389. Recent extensions of the principle. 
 391. Trade marks and trade names. 
 
XX TABLE OF CONTENTS. 
 
 III. Malicious Prosecution and Abuse of Process. 
 
 Pagb 392. Malicious prosecution. 
 
 397. Malicious civil proceedings. 
 
 IV. Other Malicious Wrongs. 
 
 401. Conspiracy. 
 
 406. Malicious interference with one's occupation. 
 
 409. Contract. 
 
 410. Or franchise. , 
 
 411. Maintenance. 
 
 CHAPTER IX. 
 WRONGS TO POSSESSION AND PROPERTY. 
 
 I. Duties Regarding Property Generally. 
 
 412. Absolute duty to respect other's property. 
 
 413. Title, justification, excuse. 
 414:. Title dependent on contract. 
 
 415. Exceptional protection of certain dealings in good faith. 
 
 416. Commion law rights and reifiedies. 
 
 417. Possession and detention. 
 
 419. Trespass and conversion. 
 
 420. Alternative remedies. 
 
 II. Trespass. 
 
 421. What shall be said a trespass. 
 
 423. Quaere cjonceming balloons. 
 
 424. Trespass to goods. 
 
 III. Injuries to Reversion. 
 
 426. Wrongs to an owner not in possession. 
 
 IV. Waste. 
 
 427. What is waste. 
 
 429. Modern law of waste : tenants for life. 
 431. Landlord and tenant. 
 
 V. Coriversion. 
 
 432! Relation of trover to trespass. 
 433. What amounts to conversion. 
 
TABLE OF CONTENTS. XX l 
 
 Page '437. Acts not amovrnting to conversion. 
 
 439. Dealings under authority of apparent owner. 
 
 441. Acts of servants. 
 
 442. Redelivery by bailees. 
 
 443. Abuse of limited interest. 
 
 446. Conversion by estoppel. 
 
 VI. Injuries betioeen Tenants in Common. 
 
 447. Trespasses between tenants in common. 
 
 VII. Extended Protection of Possession. 
 
 449. Eights of de facto possessor against strangers. 
 
 452. Eights of owner entitled to resume possession. 
 
 453. Eights of derivative possessors. 
 
 454. Possession derived through trespasser. 
 
 VIII. Wrongs to Easements, &c. 
 456. Violation, of Incorporeal rights. 
 
 IX. Grounds of Justification and Excuse. 
 
 457- Licence. *"~~ 
 
 459. Revocation of licence. 
 
 464. Distinction from grant as regards strangers. 
 
 465. Justification bylaw. 
 
 465. Re-entry: herein of forcible entry. 
 
 468. Fresh re-entry on trespasser. 
 
 469. Recaption of goods. i 
 
 471. Process of law : breaking doors. 
 
 472. Distress. 
 
 47.S. Damage feasant. 
 
 474. Entry of distrainor. 
 
 475. Trespasses justifled by necessity. 
 477. Foxhunting not privileged . 
 
 477. Trespass ab initio. 
 
 X. Remedies. 
 
 480. Taking or retaking goods. 
 480. Costs where damages nominal. 
 
 482. Injunctions. 
 
 483. Effect of changes in procedure. 
 
Xxii TABLE OF CONTENTS. 
 
 CHAPTER X. 
 NUISANCE. 
 
 Page 484. Nuisance, public or private. 
 
 487. Special right of action for public nuisance. 
 
 488. Special damage must be shown. 
 
 491. Private nuisance, what. 
 Kinds of nuisance affecting — 
 
 492. 1. Ownership. 
 
 494. 2. luria in re aliena. 
 
 494. 3. Convenience and enjoyment. / 
 
 496. Measure of nuisance. 
 
 496. Injury to health need not be shown. 
 
 497. Plaintiff not disentitled by having come to the nuisance 
 
 499. Innocent or necessary character of offensive occir5;it;on, or 
 
 convenience of place, no answer. 
 502. Modes of annoyance. 
 508. Injury common to the plaintiff with others. 
 508. Injury caused by independent acts of different persons 
 508. Obstruction of lights. 
 
 609. Nature of the right to light. , 
 
 610. Any substantial diminution is a wrong. 
 
 511. Supposed rule as to angle of forty-five degrees. 
 
 511. Enlargement or alteration of lights. 
 612. " Nuisance " to market or ferry. 
 
 512. Remedies for nuisance. 
 
 513. Abatement. 
 
 614. Notice to wrong-doer. 
 
 615. Nuisances of omission. 
 
 517. Old writs. 
 
 518. Damages. 
 520. Injunctions. 
 
 526. Difficulty or expense of abatement no answer. 
 
 527. Parties entitled to sue for nuisance. 
 529. Parties liable. 
 
 CHAPTER XI. 
 
 NEGLIGENCE. 
 
 I. The General Conception. 
 
 532. Omission contrasted with action as ground of liability. 
 
 533. General duty of caution In acts. 
 
TABLE OF CONTENTS. XXiii 
 
 Page 534. Overlapping of contract and tort 
 S37. Definition of negligence. 
 540. Standard of duty is external. 
 
 542. Diligence includes competence., 
 
 II. Evidence of Negligence. 
 
 543. Negligence a question of mixed fact and law. 
 545. Burden of proof. 
 
 548. Wliere there is a contract or undertaking. 
 
 550. Things Within defendant's control. 
 
 551. Common course of afEairs judicially noticed. 
 
 553. On evidence%ufflcient in law, question is for jury. 
 
 554. Metropolitanr R. Co. v. Jackson. 
 
 555. Cases of level crossings. 
 
 559. "Invitation to alight." 
 
 560. Complications with contributory negligence. 
 
 560. " Evidence of negligence: " Smith v. L. & S. W. R. Co. 
 663. No precise general rule. 
 
 568. Due care varies a.s apparent risk: application of this to acci- 
 dents through personal infirmity. 
 
 565. Distinction where person acting has notice of special danger 
 
 to infirm or helpless person. 
 
 III. Contributory Negligence. 
 
 566. Actionable negligence must be proximate cause of harm: 
 
 where plaintifE's own negligence proximate cause, no 
 remedy. 
 571. Tufe?;. Warman. ' 
 
 571. Radley v. L. &N. W. R. W. R. Co. 
 
 572. "Proximate " or " decisive " cause. 
 
 575. Self-created disability to avoid consequences of another's 
 
 negligence. 
 
 576. Earlier illustrations : Davies «. Mann. 
 
 577. Butterfleld v. Forrester. 
 
 580. The exploded doctrine of " identification." 
 ^82. Accidents to children in custody Of adult. 
 584. Children, &c., unattended. 
 
 587. Child V. Hearn. 
 
 588. Admiralty rule of dividing loss. 
 
 IV. Auxiliary Bules and Presumptions. 
 
 ' 589. Action under, difiiculty caused by another's negligence. 
 
 591. No duty to anticipate negligence of others. 
 
 592. Choice of risks under stress of another's negligence. 
 
XXIV TABLE OF CONTENTS. 
 
 Page 593. Clayards v. Dethick. 
 
 594. Doctrine of New York Courts. 
 
 595. Separation of law and fact In United States. 
 
 CHAPTER XII 
 DUTIES OF INSUHING SAFETY. 
 
 598. Exceptions to general limits of duties of caution. 
 
 599. Kylands v. Fletcher. 
 605. Exception of act of God. 
 607. Act of stranger, &c; 
 G08. Authorized works. 
 
 609. G. W. E Co. of Canada v. Braid. 
 
 610. Other cases of iusiArance liability. 
 610. Duty of keeping in cattle. 
 
 613. Dangerous or vicious animals. 
 
 615. Fire, flre-arms, &c. 
 
 616. Duty of keeping in Are. 
 
 61 7. Carrying fire in locomotives. 
 
 618. Fire-arms: Dixon v. Bell. 
 
 619. Explosives and other darfgerous goods. 
 
 620. Gas escapes. 
 
 621. Poisonous drugs : Thomas u. Winchester. 
 
 622. Difficulties felt iu England : Georges. Skivington. 
 
 624, Duties of occupiers of Ijuiklings in respect of safe repair. 
 
 625. Modern date of the settled rule. 
 C25. Indermaur v. Dames. 
 
 627. Persons entitled to safety. 
 
 629. Duty in respect of carriages, ships, &c. 
 
 631. Limits of the duty. 
 
 632. Volenti nonfit iniuria. 
 
 633. Duty towards passers-by. 
 
 635. Presumption of negligence (res ipsa loquitur) . 
 
 638. Distinctions. 
 
 639. Position of licensees. 
 
 641. Host and guest. 
 
 642. Liability of licensor for " ordinary negligence." 
 
 643. Owner not in occupation. 
 
TABLE OF CONTENTS. XXV 
 
 CHAPTER XIII. 
 SPECIAL RELATIONS 0¥ CONTRACT AND TORT. 
 
 Page 644. Original theory of forms of action. 
 
 645. Actions on the case. 
 
 646. Causes of action: modern classiflcation as founded on con- 
 
 tract or tort. 
 
 647. Classes of questions arising. 
 
 1. Alternative Forms of Remedy on the same Cause of Action. 
 
 647. One cause of action and alternative remedies. 
 
 647. Common law doctrine of misfeasance. 
 
 650. Special duty of carriers and innkeepers by " custom of the 
 
 realm." 
 652. Alternative of form does not affect substance of duty or 
 
 liability. 
 
 654. In modem law obligation wholly in contract. 
 
 655. Limits of the rule. 
 
 2. Concurrent Causes of Action. 
 
 656. Cases of tort, whether contract or no contract between same 
 
 parties. 
 
 658. Contract " implied in law " and waiver of tort. 
 
 659. Implied warranty of agent's authority. 
 
 660. Concurrent causes of action against different parties. 
 
 661. Dalyell». Tyrer. 
 
 661. Foulkes v. Metropolitan Dist. R. Co. 
 
 662. Causes of action in contract and tort at suit of different 
 
 plaintiffs. 
 
 663. Alton v. Midland R. Co. : qu. whether good law. 
 
 666. Winterbottom v. Wright, &c. 
 
 667. Concurrence of breach of contract with delict in Roman law . 
 
 3. Causes vf Action in Tort Dependent on a Contract not Between 
 the Same Parties. ' 
 
 668. Causes of action dependent on a collateral contract. 
 
 668. What did Lumley v. Gye decide? 
 
 669. Special damage. 
 
 669. Malice. 
 
 670. Question of remoteness of damage. ' 
 
 671. Motive as an ingredient in the wrong. 
 
XXVI TABLE OP CONTENTS. 
 
 Page 672. American doctrine. 
 
 673. Wilful interference with contract. 
 
 673. Damage to stranger by breach of contract. 
 
 674. Position of redeiver of erroneous telegram : difierent views in 
 
 England and United States. 
 677. The conflict considered ou principle. 
 
 679. Uncertainty still remaining in English doctrine. 
 
 680. Character of morally innocent acts affected by extraneons 
 
 contract. 
 
 4. Measure of Damages and Other Incidents of the Remedy. 
 
 682. Measure of damages. 
 
 684. Rule as to consequentiaJ damage. 
 
 685. Penal character of action for breach of promise of marriage. 
 
 686. Contracts on which executors cannot sue. 
 
THE LAW OF TORTS. 
 
 Book I.— GENERAL PART. 
 
 CHAPTER I. 
 
 THE NATURE OF TORT IN GENERAL. 
 
 "What is a tort ? Our first difficulty in dealing with the 
 law of torts is to fix the contents and boundaries of the 
 subject. If we are asked. What are torts? nothing seems 
 easier than to answer by giving examples. Assault, libel, 
 and deceit 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 occupations of a public 
 nature is likewise a tort, although the same facts may con- 
 stitute a breach of contract, and may, at the option of the 
 aggiieved 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 principle or element 
 is common to all the classes of cases we have' enumerated, or 
 might enumerate, and also distinguishes them as a whole 
 from other classes of facts giving rise to legal duties and 
 
2 THK NATURE OF TOET IN GENERAL. 
 
 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 agrees to terms offered by 
 the other. Ttere are variant and abnormal forms to be 
 dealt with, but this is the normal one. In the law of torts 
 we have no such starting-point, nothing (as it appears at 
 first sight) but a heap of miscellaneous instances. The 
 word itself will plainly not help us. Tort is nothing but 
 the French equivalent of our English word wrong, and was 
 freely used by Spenser as a poetical synonym for it. 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 case. 
 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 leg&l classification. 
 
 History and limits of English classification. In the 
 
 history of our law, and in its existing authorities, we may 
 find some little help, but, considering the 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 giyen 
 set of facts would fit into any and which of these forms. 
 No doubt the forms of action fell, in a manner, into 
 natural classes or groups. But no attempt was made to 
 discover or apply any general principle of arrangement. 
 In modern times, that is to say, since the Restoration, we 
 find a certain rough classification tending to prevail (o). 
 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 divi- 
 
 (a) Appendix A. 
 
LIMITS OF TERMINOLOGY. 3 
 
 "siobn^ exclusive of the real actions for the recovery of 
 land, ^irfeady becoming obsolete in the seventeenth century, 
 and finally abolished by the Common Law Procedure Act, 
 with which we need not concern ourselves; in the old 
 technical terms, it is, or was, a division of personal actions 
 only. Thus torts are distinguished from one important 
 class of causes of action. Upon the other hand, they are 
 distinguished in the modern law from criminal offences. 
 In the medieval period the procedure whereby redress was 
 obtained for ftiany 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 distinguished. In the modern law, however, 
 it is settled that a tort, as such, is not a criminal offence. 
 There are various acts which may give rise both to a civil 
 action of tort and to a criminal prosecution, or to the one 
 or the other, at the injured par^;y_'s option; but the civil 
 suit and the criminal prosecution belong to different jijris- 
 dictious, and are guided by different rules of procedure. 
 Torts belong to the subject-matter of Common Pleas a^ 
 distinguished from Pleas of the Crown. Again, the term 
 and its usage are derived wholly from the Superior Courts 
 of Westminster as they existed before the Judicature Acts. 
 Therefore, the law 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. Q^ese lie wholly outside the com- 
 mon law forms of action and all classifications founded upon 
 them. According to the common understanding of words, 
 breach of trust is a wrong, adultery is a wrong, refusal to 
 pay just compensation for saving a vessel in distress is a 
 wrong. An order may be made compelling restitution from 
 the defaulting trustee ; a decree of judicial separation may 
 
4 THE NATURE OF TOET IN GENERAL. 
 
 be pronounced against the unfaithful wife or husband ; and 
 payment of reasonable salvage may be enforced against the 
 ship-owner. But that which is remedied in each case is not 
 a tort. The administration of trusts belongs to the law 
 formerly peculiar to the Chancellor's Court, the settle- 
 ment of matrimonial causes between husband and wife ta 
 the law formerly peculiar to the King's Ecclesiastical 
 Courts; and the adjustment of salvage claims to the law 
 formerly peculiar to the Admiral's Court. These things 
 being unknown to the old common law, there can be no 
 question of tort in the technical sense. 
 
 Bxclnsive limits of " tort." Taking into account th& 
 fact that in this country the separation of courts and of 
 forms of action has disappeared, though marks of the sep- 
 arate origin and history 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 juris- 
 diction of the Court, to a civil remedy which is not an 
 action of contract. To that extent we know what a tort i& 
 not. We are secured against a certain number of obvious 
 , errors. We shall not imagine (for example) that the Mar- 
 ried Women's Property Act of 1882, by providing that 
 husbands and wives cannot sue one another for a tort, ha& 
 thrown doubt on the possibility of a judicial separation. 
 But whether any definition can be given of a tort beyond the 
 restrictive and negative one that it is a cause of action (that 
 
 Exclusive limits oJ "tort." In Bishop on Non-Contract Law, the 
 author presents a division of the grounds of legal liability into those 
 based upon contract and those based upon relations not of contract. 
 
 " The word ' tort ' means nearly the same thing as the expression 
 ' civil wrong.' It denotes an injury Inflicted otherwise than by a mere 
 breach of contract; or, to be moi"e nicely accurate, a tort is one's dis- 
 turbance of another in rights which the law has created either In the 
 absence of contract, or in consequence of a relation which a contract 
 has established between the parties. Of course the wrong must be of a 
 sort which the law rednesses, not a mere infraction of good morals." 
 Bishop on Non-Contract Law, § i. 
 
HISTORICAL DISTINCTIONS. 5 
 
 is, of a " personal" action as above noted) which can be 
 sued on in a court of common law without alleging a real or 
 supposed contract, and what, if any, are the common posi- 
 tive characters of the causes of action that can be so sued 
 upon: — these are matters on which our books, ransack 
 them as we will, refuse to utter any certain sound what- 
 ever. If the collection of rules Which we call the law of 
 torts is founded on any general principles of duty and 
 liability, 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 (6). 
 
 Are any general principles discoverable? We have no 
 right, perhaps, to assume that by fair means we shall dis- 
 cover 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 modern law, though it is still prominent in 
 Blackstone's exposition (c). Later we find a more con- 
 sciously and carefully made distinction between contracts 
 and causes of action which are not contracts. This is very 
 significant in so far as it marks the ever gaining importance 
 of contract in men's affairs. That which is of contract has 
 come to fill 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 independent of contract. 
 But this unanalyzed remainder is no more accounted for 
 by the dichotomy of the Common Law Procedure Act than 
 it was before. It may have elements oi coherence within 
 
 (6) The first, or almost the first. chapter OT Liability in his "Elements 
 •writer who has clearly called attention of Law." 
 to It Is Sir William Markby. See the (c) Comm. ill. 118. 
 
6 THE NATDRE OF TOKT EV GENEKAIj. 
 
 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 appropriate general principles, whether any particular 
 attempt so to express it be successful or not. If not, then 
 there is no such thins as the ]avf of torts in the 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 noth- 
 ing but a collection of miscellaneous topics which, through 
 historical accidents, have never been brought into any real 
 classification. > 
 
 The genera of torts in English law. The only way to 
 satisfy ourselves on this matter is to examine what are the 
 leading heads of the English law of torts as commonly 
 received. If these point to any sort of common principle, 
 and seem to furnish acceptable lines of construction, we 
 may proceed in the directions indicated; well knowing, 
 indeed, that excrescences, defects, and anomalies will occur, 
 but having some guide for our judgment 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 4 threefold division according^ 
 to their scope and eflFects. There are wrongs affecting a 
 man in the safety and freedom of his own person, in honor 
 and reputation (which, as men esteem of things near and 
 dear to them, come next after the person, if after it at all), 
 or in his estate, condition, and convenience of life generally : 
 the word estate being here understood in its widest sense, 
 as when we speak of those who are «' afflicted or 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 so large a sense 
 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 
 
CLASSIFICATION OF TORTS. 7 
 
 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. 
 Personal Wrongs. 
 
 1. Wrongs affecting safety and freedom of the person: 
 
 Assault, battery, false imprisonment. 
 
 2. Wrongs affecting personal relations in the family: 
 
 Seduction, enticing away of servants. 
 
 3. Wrongs affecting reputation : 
 
 Slander and libel. 
 
 4. Wrongs affecting estate generally : 
 
 Deceit, slander of title. 
 Malicious prosecution, conspiracy. 
 
 Group B. . 
 Wrongs to Property. 
 
 1. Trespass: (a) to land. 
 
 (b) to goods. 
 Conversion and unnamed wrongs ejusdem generis. 
 Disturbance of easements, etc. 
 
 2. Interference with rights analogous to property, such 
 
 as private franchises, patents, copyrights. 
 
 Group C. 
 Wrongs to Person, Estate, and Properly 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 results, 
 as ^ill be seen hereafter, partly from ancient rules 
 
8 THE NATURE OF TOKT IN GENERAL. 
 
 of the common law of which the origin is still doubt- 
 ful, partly from the modern development of the law 
 of negligence. 
 
 •All the acts and omissions here specified are undoubtedly 
 torts, or wrongs in the technical sense of English law. 
 They are the subject of legal redress, and under our old 
 judicial system the primary means of redress would be an 
 action brought in a common law court, and governed by the 
 rules of common law pleading (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 
 Eoman law that our list includes approximately the same 
 matters (e) as in the Roman s\'stem are dealt with (though 
 much less fully than in our own) under the title of obliga- 
 tions ex delicto and quasi ex delicto. To pursue the com- 
 parison at this stage, however, would only be to add the 
 difficulties of the Eoman classification, which' are consider- 
 able, to those already on our hands. 
 
 Character of wrongful acts, ete., under the several 
 classes. .Wilful wrongs. 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 wrong is wilful or 
 • wanton. Either the act is intended to do harm, or, being 
 an act evidently likely to cause harm, it is done with reck- 
 less indifference to what may befall by x-eason of it. Either 
 
 ((2) In some cases the really cffectnal (e) Trespass to land may or may not 
 
 remedies were administered by the be an exception, according to the vieir 
 
 Coort of Chancery, but only as auxUiary we take ol the natnre of the liabilities 
 
 to the legal right, which it was often enforced by the possessory remedies of 
 
 necessary to establish in an action at the Eoman law. Somemodern^nthori- 
 
 law before the Conrt of Chancery would ties, though not moat, regard these as 
 
 interfere. ex delicto. 
 
MORAL ELEMENTS. 9 
 
 there is deliberate injury, or there is something like the 
 self-seeking indulgence of passion, in contempt of other 
 men's rights and dignity, which the Greeks called Sl3p'.~. 
 Thus the legal wrongs are such as to be also the object of 
 strong moral condemnation. It is needless to show by 
 instances that violence, e\cil-speaking, and deceit, have been 
 denounced by righteous men in all ages. If anyone desires 
 to be satisfied of this, he may open Homer or the Psalter 
 at random. What is more, we have here to do with acts of 
 the sort that are next door to crimes. Many of them, in 
 fact, are criminal offences as well as civil wrongs. It is 
 a common border land of criminal and civil, public and 
 private law. 
 
 Wrongs apparently unconnected wltli mural blame. 
 
 In Grouj) B. this element is at first sight absent, or at any 
 
 Wrongs apparently lonconnected with moral blame. Agreeing with 
 the text it is established in the United States that to sustain an action, 
 where there is a clear violation of a right, it is not necessary to show 
 actual damage, for the reason that every .violation imports damage and 
 the plaintifE is entitled to nominal, damages, if no other be proved. 
 Webb V. Portland Mfg. Co., 3 Sumn. 189 ; Dixon v. Clow, 24 Wend. 188 ; 
 Hastings v. Llvermore, 7 Gray, 194; Chaffee v. Pease, 10 Allen, 537; 
 Blodgelt V. Stone, 60 N. H. 167. 
 
 This rule, however, is subject to exceptions. See Upton v. Vail, 6 
 Johns. 181; Ming ». Woolfolk, 116 U. S. 599; 6 Sup. Ct. Rep. 489; Taylor 
 V. Guest, 58 N. Y. 262; Tryon v. Whltmarsh, 1 Mete. 1; Benton v. Pratt, 
 2 Wend. 385. 
 
 The fact that an unlawful act of a defendant was done in good faith 
 does not relieve him of liability. Dexter v. Cole, 6 Wis. 319; Reynolds 
 ■B. Shuler, 5 Cow. 232; Gibbs v. Chase, 10 Mass. 125; Guille v. Swan, 19 
 Johns. 381 ; Kamerick v. Castleman, 29 Mo. App. 658 ; Higginson v. Jork, 
 6 Mass. 34; CaldweU v. Farrell, 28 111. 438; Allison v. Little, 85 Ala. 512; 
 5 So. Rep. 221; Wintringham v. Lafoy, 7 Cow. 735; Miller?;. Baker, 1 
 Met. 27; Morgan v. Varick, 8 Wend. 587; Jordan v. Wyatt, 4 Grat. 151 ; 
 Bnrch V. Carter, 32 N. J. L. 554; Drew v. Peer, 9.3 Pa. St. 234 ; Parker v. 
 Mise 27 Ala. 480; Woolf v. Chalker, 31 Conn. 121; Lowenburg v. 
 Rosenthal, 18 Oreg. 178; 22 Pac. Rep. 601; Jefferies v. Hargus, 50 Ark. 
 65- Conway v. Russell, 151 Mass. 581; 24 N. E. Rep. 1026; Formwalti;. 
 Hylton, 66 Tex. 288; 1 S. W. Rep. 376; Amick v. O'Hara, 6 Blackf. 258; 
 Cate V. Cate, 44 N. H. 211 ;.Hazelton v. Week, 49 Wis. 661 ; Tobin?;. Deal, 
 
10 THE NATURE OF TORT IN GENERAL. 
 
 rate indifferent. Whatever may or might be the case in 
 other legal systems, the intention to violate another's 
 rights, or even the knowledge that one is violating them, is 
 not in English law necessary to constitute the wrong of 
 trespass as regards either land or goods, or of conversion 
 as regards goods. On the contrary-, an action of trespass — 
 or of ejectment, which is a special form of trespass — has 
 for centuries been a common and convenient method of 
 trying an honestly disputed claim of right. Again, it mat- 
 ters not whether actual harm is doner " 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 license, but he is liable to an action, 
 though the damage be nothing; which is proved by every 
 declaration in trespass, where the defendant is called upon 
 to answer for bruising the grass and even treading upon the 
 soil " {f). Nor is this all ; for dealing with another man's 
 goods without lawful authority, but under the honest and 
 even' reasonable belief that the dealing is lawful, may be 
 an actionable wrong notwithstanding the innocence of the 
 mistake (gr). Still less will good intentions afford an 
 excuse. I find a watch lying in the road; intending to do 
 the owner a good turn, I take it to a watchmaker, who to 
 the best of my knowledge is competent, and leave it with 
 him to be cleaned. The task is beyond him, or an incom- 
 petent hand is employied on it, and the watch is spoilt in 
 the attempt to restore it. Without question the owfler may 
 hold me liable. In one word, the duty which the law of 
 England enforces is an absolute duty not to meddle without 
 lawful authority with land or goods that belong to others. 
 And the same principle applies to rights which, though 
 
 (/ ) Per Cur. Ejitick v. Carnngtm, 19 (y) See ffoUins v. Fowler, L. B. 7 H. li. 
 
 St. Tr. 1066. 757 ; 44 L. J. Q. B. 169. 
 
 60 Wis. 87; Cubit v. O'Dett, 51 Mich. 347; Hatch v. Donnell, 74 Me. 163; 
 Newkirk «. Sabler, 9 Barb. 652. 
 
MORAL ELEMENTS. H 
 
 not exactly property, are analogous to it. There are excep- 
 tions, 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 circum- 
 stances, 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. Eeserving the explanation of 
 this, to be attempted afterwards, we pass on. 
 
 Wrongs of imprndence and omission'. In Group C. 
 the acts or omissions complained of have a kind of inter- 
 mediate chalracter. They are not as a rule wilfully or 
 wantonly harmful ; but neither are they morally indiffer- 
 ent, save in a few extreme cases under the third head. 
 The party has for hjs own purposes, done acts, or brought 
 about a state of things, or brought other people into a, 
 situation, or taken on himself the conduct of an operation, 
 which a prudent man in his place would know to. be 
 attended with certain risks. A man who fails to take 
 order, in things within his control, against risk to others 
 which. he actually foresees, or which a man of common 
 sense and competence would in his place foresee, will 
 scarcely be held blameless by the moral judgment of his 
 fellows. Legal liability for negligence and similar wrongs 
 corresponds approximately to the moral censure on this 
 kind of default. I'he 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 favorably con- 
 sidered than imprudence if harm happens to come of it; 
 and here, too, morality will not dissent. In some condi- 
 tions, indeed, and for special reasons which must be con- 
 sidered later, the legal duty goes beyond the moral one. 
 
 Wrongs of imprudence and omission. For the authorities supporting 
 the doctrine stated in the text, see post, pp. 883, 386. 
 
12 THE NATCKE OF TOET IN GENERAL. 
 
 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 con- 
 demns (h). 
 
 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 manslaughter by negli- 
 gence. 
 
 Kelation of the law of torts to the semi-ethical precept 
 alteram non laedere. We have, then, three main divisions 
 pf the law of touts. In one of them, which may be said to 
 have a quasi- criminal character, there is a very strong 
 ethical element. In another no such element is apparent. 
 In the third such an element is present, though less mani- 
 festly so. Can we find any category of human duties that 
 will approximately cover them all, and bring them into re- 
 lation with any single principle? Let us turn to one of 
 the best-known sentences in the introductory chapter of the 
 Institutes, copied from a lost work of Ulpian. •' luris 
 praecepta sunt haec-: honeste vivere, alterum non laedere, 
 suum cuique tribuere." Honeste vivere is a vague phrase 
 enough ; it may mean refraining from criminal offences, or 
 possibly general good behaviour in social and family rela- 
 
 (ft) How far such a doctrine can be firmed by the Honse of Lords: Rylanda 
 
 theoretically or historically justified is t. Fletcher (1868), L. E. 3 H. L. 330; 37 L. 
 
 not an open qnestlon for English coarts J. Ex. 161. 
 of justice, for it has been explicitly af- 
 
 Preoepts. Honeste vivere (to live honorably), alterum non laedere (not 
 to injure others), and suum caique tribuere, (to render to every man his 
 due), were the three general precepts to which Justinian reduced the 
 whole doctrine of the law. Black's Law Die, p. 579. 
 
FORMS OF ACTION. 13 
 
 tions. Suum cuique tribuere seems to fit pretty well with 
 the law of property and contract. And what of alterum non 
 laedere? " Thou shalt do no hurt to thy neighbor." Our 
 law of torts, with all its irregularities, has for its main 
 purpose nothing else than the development of this pre- 
 cept (i). This exhibits it, no doubt, as the technical 
 working out of a moral idea by positive law, rather than 
 the systematic application of any distinctly legal con- 
 ception. But all positive law must pre-suppose 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. 
 
 Historical anomaly of law of trespass and conversion. 
 
 The real difficulty of ascribing any rational unity to our 
 law of torts is made by the wide extent of the liabilities 
 mentioned under Group B., and their want of intelligible 
 relation to any moral conception. 
 
 A right of property is interfered with " at the peril of 
 the person interfering with it, and whether his interference 
 be for his own use or that of anybody else" (h). 
 
 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. 
 
 Early division of forms of action. The truth is that 
 we have here 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 asser- 
 tion or vindication of title and claims for redress against 
 
 (») Compare the sta{ement of "duty word nor deed: To be true and just In 
 
 towards my neighbor," In the Church all my dealing . . . ." 
 Catechism, probably from the hand of (*) Lord O'Hagan, L. K, 7 H. L. at p. 
 
 Goodrich, Bishop of Ely, who was a 799. 
 iearned civilian : " To hurt nobody by 
 
14 THE NATURE OF TOET IN GENERAIi. 
 
 specific injuries. Of course the same facts would often, 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 distinction was in itself none the 
 less marked. 
 
 Writs of right and writs of trespass: restitution ou 
 punislimeut. For assertion of title to land there was the 
 writ of right; and the writ of debt, with its somewhat later 
 variety, the writ of detinue, asserted a plaintiffs title to 
 money or goods in a closely corresponding form (?). In- 
 juries to person or property, on the other band, were 
 matter for the writ of trespass and certain other analogous 
 writs, and (from thei 13th century onwards) the later and 
 more comprehensive writ of trespass on the case (»n). In 
 the former kind 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 private vengeance {n). Now the writs of res- 
 titution, as we may collectively call them, were associated 
 with many cumbrous and archaic points of procedure, 
 exposing a plaintiff to incalculable and irrational risk; 
 while the operation of the writs of penal redress was by 
 
 (?) The writ ol right (Glanvill, Bk. 1. c. conclnslon of the writ contra paean. 
 
 6) runs thus: " Bex viceoomitl ealutem : Writs of assize, inolnding the assize of 
 
 Praecipe A. qnod sine dilatione reddat nuisance, did not so conclude, bat show 
 
 B. unam hidam terrae in villa ilia, unde ' analogies of form to the writ of tres- 
 
 idem B. queritur quod praedictus A. el pass in other respects. Actions on the 
 
 detorceat: et nisi fecerit, summone case might be founded on other writs 
 
 eum," etc. The writ of debt (Bk. besides that of trespass, «. g., deceit, 
 
 X. c. 2) thus: "Rex vicecomlti salu- which contributed largely to the for- 
 
 tem: Praecipe N. quod iuste et sine mation of the action of assumpsit. The 
 
 dilatione reddat E. centum marcas quas writ of trespass Itself is by no means 
 
 el debet, utdicit, et unde queritur quod one of the' most ancient: seeF. W. Malt- 
 
 ipse ei iniuste detorceat. Et nisi fecerit, land in Harv. Law Eev. iii. 217-219. 
 summone eum," etc. The writs of (n) Not retaliation. Early (jermanio 
 
 covenant and account, which were de- law shows no trace of retaliation in the 
 
 veloped later, also contain the charac- strict sense. A passage in the introduo- 
 
 teTiatic words iuste et sine dilatione. tion to Alfred's laws, copied from the 
 
 (m) Blackstone, iii. 122; F. N.B.92. Book of Exodus, is no real exception. 
 The mark of this class of actions is the 
 
FORMS OF ACTION. 15 
 
 comparison simple and expeditious. Thus the interest of 
 suitors led to a steady encro^achment 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 possessory 
 real action which are a sort of link between the writ of 
 right and the writ of trespass — and then superseded by 
 the action of ejectment, in form a pure action of trespass ; 
 but in like manner the action of detinue was largely sup- 
 planted by trover, and debt by assumpsit, both of these 
 new-fashioned remedies being varieties of action on the 
 case (o). In this way the distinction between proceedings 
 taken on a disputed claim of right, and those taken for 
 the redress of injuries where the right was assumed not to 
 be in dispute, became quite obliterated. The forms of 
 action were the sole embodiment of such legal theory as 
 existed; and therefore, as the distinction of remedies was 
 lost, the distinction between the rights which they pro- 
 tected 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 transferred, in forensic usage and thence in the tra- 
 ditional habit of mind of English lawyers, to the law of 
 torts. In a rude state of society the desire of vengeance 
 is measured by the harm actually suffered and not by any 
 consideration of the actor's intention; hence the archaic 
 law of injuries is a law of absolute liability for the direct 
 consequences of a man's acts, tempered only by partial 
 exceptions in the hardest cases. These archaic ideas of 
 absolute liability made it easy to use the law of wrongful 
 injuries for trying what were really questions of absolute 
 right; and that practice again tended to the preservation 
 
 (o) For the advantages of sning In to which see Co. Litt. 295 a) being al- 
 
 case over the older forms of actions, lowed in debt and detinue Is some one's 
 
 see Blackstone, Hi. 153, 155. The reason idle guess, due to mere ignorance of 
 
 given at p. 162 for the wager of law (as the earlier history. 
 
16 THE NATURE OF TORT IN GENERAL. 
 
 of these same archaic ideas ia other departments of the law. 
 It will be observed that in our early forms of action contract, 
 as such, has no place at all (p) ; an additional proof of 
 the relatively modern character both of the importance of 
 contract in practical life, and of the growth of the corre- 
 sponding general notion. 
 
 Rationalized version of law of trespass. We are now 
 
 independent of forms of action. Trespass and trover have 
 become historical landmarks, and the question whether 
 detinue is, or was, an action founded on contract or on 
 tort (if the foregoing statement of the history be correct, 
 it was really neither) survives only to raise difficulties in 
 applying certain provisions of the County Courts Act 
 as to the scale of costs in the Superior Courts (j). It 
 would seem, therefore, that a rational exposition of the law 
 of torts is free to get rid of the extraneous matter brought 
 in, as we have shown, by the practical exigency of condi- 
 tions 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 un- 
 reasonable to expect him to know what is his own, which is 
 Only the statement of the same rule from 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 as to his right, but for causes deemed 
 by him sufficient, he is content to abide (or perhaps intends 
 to provoke) a legal contest by which the doubt may be 
 resolved. In none of these cases can he complain with 
 
 (p) Except what may be implied from to tlie contract : F. N. B.119; Blackstone^ 
 
 tbe teclmical rale that the word debet iii. 156. 
 
 was proper only in an action lor a aam (g) Bryant v, Herbert (1878), 3 O. P. 
 
 of money between the original parties Div. 389, 47 L. J C P. 670. 
 
ANOMALIES OP TRESPASS. 17 
 
 moral justice of being iield to answer for his act. If not 
 wilfully or wantonly injurious, it is done with some want 
 of due circumspection, or else it involves the conscious 
 acceptance of a risk. A form of procedure which attempted 
 to distinguish between these possible cases in detail would 
 for practical purposes hardly be tolerable. Exceptional 
 cases do occur, and may be of real hardship. One can 
 only say that they are thought too exceptional to count in 
 determining the general rule of law. From this, point of 
 view we can accept, though we may not actively approve, 
 the inclusion of the morally innocent with the morally 
 guilty trespasses in legal classification. 
 
 Analogy of the Roman obligations ex delicto. We 
 
 may now turn with profit to the comparison of the Eoman 
 system with our own. There we find strongly marked the 
 distinction between restitution and penalty, which was 
 apparent in our old forms of action, but became obsolete 
 in the manner above shown. Mr. Moyle (r) thus describes 
 the specific character of obligations ex delicto. 
 
 " Such wrongs as the withholding of possession by a 
 defendant who bona fide believes in his own title are not 
 delicts, at any rate in the specific sense in which the term 
 is used in the Institutes; they give rise, it is true, to a 
 right of ^action, but a right of action is a different thing 
 from an obligatio ex delicto; they are redressed by mere 
 reparation, by the wrong-doer being compelled to put the 
 other in the position in which he would have been had the 
 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 modify obligations already subsisting ; 
 they always involve dolus or culpa; and the remedies by 
 which they are redressed are penal." 
 
 (r) In his edition of the Institutes, note to Bk. iv. tit. 1, p. 497. 
 
18 THE NATURE OF TOBT IN GENERAL. 
 
 Dolus and culpa. The Latin dolxis, as a technical term, 
 is not properly rendered by " fraud " in English ; its mean- 
 ing is much wider, and answers to what we generally signify- 
 by " unlawful intention." Culpa is exactly what we mean 
 by " negligence," the falling short of that care and cir- 
 cumspection which is due from one man to another. The, 
 rules specially dealing with this branch have to define the 
 measure 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 
 received. It is to be observe^ that the Roman theory was 
 built up on a foundation of archaic materials by no means 
 unlike our own; the compensation of the civilized law 
 stands instead of a primitive retaliation which was still 
 recognized by the law of the Twelve Tables. If then we 
 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 supports (and 
 by a perfectly independent analogy) the conception that 
 appears really to underlie the English law of tort. Liability 
 for delict, or civil wrong in the strict s^nse, is the result 
 either of wilful injury to others, or wanton disregard of 
 what is due to them {dolus), or of a failure to observe due 
 care and caution which has similar though not intended or 
 expected consequences ( culpa ) . 
 
 Ijiability quasi ex delicto. We have, moreover, apart 
 from the law of trespass, an exceptionally stringent rule in 
 certain cases where liability is attached to the befalling of 
 harm without proof of either intention or negligence, as 
 was mentioned under Group C of our provisional scheme. 
 Such is the case of the landowner who keeps on his land an 
 
RELATION OF WRONG TO DAMAGES. 19 
 
 artificial reservoir of water, if the reservoir bursts and 
 floods the lands of his neighbours. Not that it was wrong 
 of him to have a reservoir there, but the law says he must 
 do so at his own risk (s). This kind of liability has its 
 parallel in Roman law, and the obligation is said to be not 
 ex delicto, since true delict involves either dolus or culpa, 
 but quasi ex delicto (t). Whether to avoid the difficulty of 
 proving negligence, or in order to sharpen men's precaution 
 in hazardous matters by not even allowing them, when 
 harm is once done, to prove that they have been diligent, 
 the mere fact of the mischief happening gives birth to the 
 obligation. In the cases of carriers and innkeepers a 
 similar liability is a very ancient part of our law. What- 
 ever the original reason of it may have been as matter of 
 history, we may be sure that it was, something quite unlike 
 the reasons of policy governing the modern class of cases 
 of which Rylands v. Fletcher (m) is thetype and leading 
 authority; by such reasons, nevertheless, 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 partly 
 negative, but also not to be barren. It is hardly possible 
 to frame a definition of a tort that will satisfy all the mean- 
 ings in which the term has been used by persons 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 war- 
 rant. But it appears that this difficulty or impossibility is 
 due to particular anomalies, and not to a total want of 
 general principles. Disregarding those anomalies, we may 
 
 Cs) Rylands v. Fletcher, L. E. 3 H. L. true, however, that the application of 
 
 330, 37 L. J. Ex. 161. the term in the Institutes is not quite 
 
 (t) Anstin's perverse and nnintelli- consistent or complete. See Mr. Moyle's 
 
 gent criticism of this perfectly rational notes on I. Iv. 5. 
 
 terminology has been treated with far (w) L. R. 3 H. L. 330. See Oh. XII. 
 
 more respect than it deserves. It is below. 
 
20 THE NATURE OF TOilT IN GENEEAL. 
 
 try to sum up the normal idea of tort somewhat as 
 follows : — 
 
 Tort is an act or omissi^on (not being merely the breach 
 of a duty arising out of a personal relation, or undertaken 
 by contract) which is related to harm suffered by a deter- 
 minate person in one of 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.Iegal duty, which causes harm 
 not intended by the person so acting or omitting. 
 
 (c) It may be an act or omission causing harm which the 
 
 person so acting or omitting did not intend to 
 cause, but might and should with due diligence 
 have foreseen aud prevented. 
 
 (d) It may, in special cases, 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 last 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 insurer 
 to the public against a certain risk, in others he warrants 
 only that all has been done for safety that reasonable care 
 can do. 
 
 Connected in principle with these special liabilities, but 
 running through the whole subject, and of constant occur- 
 rence in almost every division of it, is the rule that a master 
 is answerable for the acts and defaults of his servants in 
 the course of their employment. 
 
 This is indication rather than definition: but to have 
 guiding principles indicated is something. We are entitled. 
 
RELATION OF WRONG TO DAMAGKS. 21 
 
 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 condi- 
 tions and exceptions belongiug only to particular branches, 
 and to be considered, therefore, in the places appropriate 
 to those branches. 
 
22 
 
 CHAPTEK n. 
 
 PEINCIPLES OF LIABILITY. 
 
 "Want of generality in early law. There is no express 
 authority that I isnow of for stating as a general proposi- 
 tion of English law that it is a wrong to do wilful harm to 
 one's neighbour without lawful justification or excuse. 
 Neither ^s there nny express authority for the general 
 proposition that meu 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 
 enumeration of. particular remedies. There is no law of 
 contracts in the modern lawyer's sense, only a list of cer- 
 tain kinds of agreements which may be enforced. Neither is 
 there any law of delicts, but only a list of certain kinds of 
 injury which have certain penalties assigned to them. Thus 
 in the Anglo-Saxon and other early Germanic 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 specified forms of 
 obligation and modes of proof are incapable of enforce- 
 ment; whatever injuries are not in the table of com- 
 pensation must go without legal redress. The phrase 
 
 (a) In Gains iii. 223, 224, the contrast as regaTde tbe stage of development at- 
 
 between the ancient law of fixed penal- tained, the law of Jastinian, and often 
 
 ties and the modern Jaw of damages that of Gains, is far more modern than. 
 
 assessed by jndiclal authority is clearly the English law of the Year- Books, 
 shown. The student wlllrememberthat, 
 
GENERAL DUTIES. 23 
 
 damnum sine iniuria, which for the modern law is at best 
 insignificant, has meaning and substance enough in such a 
 system. Only that harm which falls within one of the 
 specified categories of wrong-doing entitles the person 
 aggrieved to a legal remedy. 
 
 General 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 atl agreements that satisfy certain general 
 conditions are valid aiid binding, subject to exceptioniS 
 which are themselves assignable to general principles of 
 justice and policy. So we can be no longer satisfied in the 
 region of tort with a mere enumeration of actionable in- 
 juries. The whole modern law of negligence, with its 
 many developments, enforces the duty of fellow-citizens 
 to observe in varying circumstances an appropriate meas- 
 ure of prudence to avoid causing harm to one another. 
 The situations in which we are under no such duty appear 
 at this day not as normal but as exceptional. A man cannot 
 keep shop or walk into the street without being entitled to 
 expect and bound to practice observance in this kind, as we 
 shall more fully see hereafter. If there exists, then, a 
 positive duty to avoid harm, much more must there exist 
 the negative duty of not doing wilful harm; subject, as all 
 general duties must be subject, to the necessary exceptions. 
 The three main heads of duty with which the law of torts 
 is concerned — namely, to abstain from wilful injury, to 
 respect the property of others, and to use due diligence to 
 avoid causing harm to others — are all alike of a comprehen- 
 sive nature. As our laws of contract has been generalized 
 by the doctrine of consideration and the action of assumpsit, 
 so has our laws of civil wrongs by the wide and various 
 application of actions on the case (6). 
 
 (d) The developed Koman law tias tlon. " Deniqne aliis plnilbus modls 
 either attained or was on the point of adtnltti injnriam manifestain est ''': I. 
 attaining a like generality of applica- IV. i, 1. 
 
24 PRINCIPLES OF LIABILITY. 
 
 Acts in breach of specific legal duty. The commission 
 of an act specifically forbidden by law, or the omission or 
 failure to perform any duty specifically imposed by law, is 
 generally equivalent to 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 com- 
 monest 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 passengers using the road. 
 Even if" the mischief to be prevented is not such as an 
 ordinary man would foresee as the probable consequence 
 of disobedience, there is some default in the mere fact that 
 the law is disobeyed; at any rate a court of law cannot 
 admit discussion on that point ; and the defaulter must take 
 
 Acts in breach of specific legal duty. Supporting the doctrine of the 
 text vide. Miller v. Woodhead, 104 N. T. 471; 11 N. E. Eep. 57; Guest 
 H. Reynolds, 68 111. 478; Gramlich v. Wurst, 86 Pa.' St. 74; Railroad Co, 
 V. Schwindling, 101 Pa.'' St. 258; GalUgan v. Manafactnring Co., 143 
 Mass. 527; 10 N. E. Rep. 171; Gillespie v. McGowan, 100 Pa. St. 144; 
 Lamb o. Stone, 11 Pick. 526; Rice v. Coolidge, 121 Mass. 393; Randlette 
 o. Judkins, 77 Me. 114; Adams v. Marshall, 188 Mass. 228; Wilson v. 
 Dubois, 35 Minn. 471; 29 N. W. Rep. 68; Lilly v. Boyd, 72 Ga. 83. 
 
 Illustrating the creating of legal duty by statute, vide, Willy v. Mul- 
 ledy, 78 N. Y. 310; Commissioners v. Duckett, 20 Md. 468; Hover v. 
 Barkhoof, 44 N. Y. 113; Heeney v. Sprague, HE. I. 454; Baxter v. Doe, 
 142 Mass. 558; 8 N. E. Rep. 415; Dudley v. Mayhew, 3 N. Y. 9; Grant 
 17. Power Co., 14 R. I. 380; Boot v. Pratt, 33 Minn. 323. 
 
 There are numerous statutes enacting legal duties the violation of 
 which is a tort. Among such statutes are those requiring railroad com- 
 panies to fence their tracks, to use the best approved appliances for the 
 protection of life and property, etc. See Keyer v. Chicago, etc., Co., 56 
 Mich. 659; 33 N. W. Eep. 867; Hayes v. Michigan Cent. R. R. Co., Ill 
 U. S. 228; Wilson v. Rochester, etc., R. R. Co., 16 Barb. 167; Patterson 
 V. Detroit, etc., E. E. Co., 56 Mich. 172; Houston, etc. R. R. Co. s.Terry 
 42 Tex. 451; Reynolds v. Hindman, 32 la. 146; Bartlett, etc., Co. v. Roach 
 68 fll. 174; Titcomb v. Fitchburg R. R. Co., 12 Allen, 254. 
 
/' 
 
 SPECIAL DUTIES. 25 
 
 the consequences. 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 offense 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 piivate interest that the addition of this quasi- 
 penal sanction as a motive to their observance appears to 
 be no bad thing. Many public duties, however, are wholly 
 created by special statutes. In such cases it is not an 
 universal proposition that a breach of the duty confers a 
 private right of action on any and every person who suffers 
 particular damage from it. The extent of the liabilities 
 incident to a statutory duty must be ascertained from the 
 scope and terms of the statute itself. Acts of Parliament 
 often contain special provisions for enforcing the duties 
 declared by them, and those provisions may be so framed 
 as to exclude expressly, or by implication, any right of 
 private suit (d). Also there is no cause of action where 
 the damage complained of " is something totally apart from 
 the object of the Act of Parliament," as being evidently 
 outside the mischiefs which it was intended to prevent. 
 What the legislature has declared to be wrongful for a 
 definite purpose cannot be therefore treated as wrongful 
 for another and different purpose (e). 
 
 Duty of respecting property. As to the duty of respect- 
 ing proprietary rights, we have already mentioned that it is 
 an absolute one. Further illustration is reserved for tne 
 special treatment of that division of the subject. 
 
 Duties of diligence. Then we have the general duty of 
 •using due care and caution. What is due care and caution 
 
 (c) Gull!/ T. Smith (1883) 12 Q. B. D. (e) Gorris v. Scott (1874) L. E. » Ex. 
 121, 53 L. J. M. C. 35. 125, 43 L. J. Ex. 92 ; Ward v. STobbs (1878) 
 
 (d) AtMneon v. Newcastle Waterworks 4 App. Ca. 13, 23, 48 L J. Q. B. 281. 
 Co. (1877) 2 Ex. DiT. 441, 46 L. J. Ex. 775. 
 
26 PRINCIPLES OF LIABILITY. 
 
 under given circumstances has to be worked out in the 
 special treatment of negligence. Here we may say that, 
 generally speaking, the standard of duty is fixed by refer- 
 ence to what we should expect in the like case from a man 
 of ordinary sense, knowledge, and prudence. 
 
 Assumption of skill. Moreover, if the party has taken; 
 in hand the conduct of anything requiring special skill and 
 
 Assumption^ ol skill. In the tTnited States the rule Is somewhat 
 stricter than in Sngland, that jpersons who hold themselves out to the 
 ■ world as possessing skill and qualifications in their respective trades or 
 professions are bound to reasonable skill and diligence in the perform- 
 ance of their duties. Citizens Loan F. & S. Assn. v. Friedly, 123 Ind. 
 145, following Waugh v. Shunb, 20 Pa. St. 130, citing Watson v. Muir- 
 head, 57 Pa. St. 161; tTnited States Mortgage Co. w. Henderson, 111 Ind. 
 34. See McCandless v. McWha, 22 Pa. St. 261. 
 
 A majority of the authorities upon this subject relating to speciaL 
 classes of persons are collated as follows: — 
 
 Agents. "Varnum v. Martin, IS Pick. 440; Williams v. Higgins, 80 Md. 
 404; Harriman v. Stowe, 57 Mo. 93; Myles ». Myles, 6 Bush. 237; Evans 
 V. Watrous, 2 Portr 205; Holliday v. Kennard, 12 Wall. 254; Howard v.. 
 Grover, 28 Me. 97; 48 Am. Dec. 478; Leighton v. Sargent, 7 Fost. 460; 
 59 Am. Dec. 388; Milwaukee Bank v. City Bank, 103 U. S. 668; Webster 
 V. Whitworth, 49 Ala. 201; Long v. Morrison, 14 Ind. 595; Wood v. 
 Clapp, 4 Sneed (Tenn.), 65; Patten v. Wiggln, 51 Me. 594; Matthews «. 
 Fuller, 123 Mass. 446; Gllson v. Collins, 66 111. 136; Fay v. Strawn, 82 
 111. 295; Gettins v. Scudder, 71 111. 86; Whitney ». Martine, 88 N. Y. 635; 
 First Nat. Bank of Meadville v. Fourth Nat. Bank of N. Y., 77 N. Y. 320; 
 Heineman v. Heard, 50 In. Y. 27; Gleason v. Clark, 9 Cow. 57; Leverick. 
 V. Meigs, 1 Cow. 645; Bigelow v. Walker, 24 Vt. 149; 58 Am. Dec. 
 156; Wilmot v. Howard, 89 Vt. 447; Gheen ». Johnson, 90 Pa. St. 38; 
 Fowler v. Sergeant, 1 Grant Cas. 355. 
 
 Apothecaries, Hansford v. Payne, 11 Bush, 380; Walton v. Booth, 84 
 La. An. 913; Bay v. Burbank, 61 Ga. 505; Beckwith v. Oatmaq, 48 Hun, 
 265; McCubbin v. Hastings, 27 La. An. 713; Fleet o. HoUenkemp, 13 b! 
 Mon. 219 ; Gwynn v. Duffleld, 66 Iowa, 708 ; Davidson v. Nichols, 11 AUen, 
 614. 
 
 Attorneys. Citizens Loan F. & S. Assn. v. Friedly, supra; Pennington 
 V. Yell, II Ark. 212; Cox ». Sullivan, 7 Ga. 144; Varnum ■». Martin, 15 
 Pick. 450; Oldham v. Sparks, 28 Tex. 425; Roots v. Stone, 2 Leigh, 650 j 
 Reilley v. Cavanaiigh, 29 Ind. 435; Cox v. Sullivan, 7 Ga. 148; Fenaille v.. 
 Coudest, 44 N. J. L. 286; Stevens v. Walker, 55 111, 151; Dearborn o_ 
 Dearborn, 15 Mass. 316; Fox v. Jones, 14 S. W. Rep. 1007; Thomas »- 
 
DILIGENCE AND COMl'ETENCE. 27 
 
 knowledge, we require of him a competent measure of the 
 skill and knowledge usiially found in persons who under- 
 take such matters. And this is hardly an addition to the 
 general rule ; for a man of common sense knows wherein . 
 he is competent and wherein not, and does not take on him- 
 self things in which he is incompetent. If a man will drive 
 a carriage, he is bound to have the ordinary competence of 
 a coachman ; if he will handle a ship, of a seaman ; if he 
 will treat a wound, of a surgeon; if he will lay bricks, of 
 a bricklayer; and so iq every case that can be put. Who- 
 ever 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 
 
 Schee, 80 la. 237; Walpole v. Carlisle, 32 Ind. 413; Caverly v. McOwen^ 
 123 Mass. 574; Bowman v. Tallman, 27 How. Pr. 212. 
 
 Caterer. Bishop v. Weber, 139 Mass. 411. 
 
 Engineer. McCarty v. Bauer, 3 Kan. 237. 
 
 Physicians and Surgeons. Eowe v. Lent, 62 Hun, 62; 17 N. Y. S. Eep. 
 131; Barney «, Pinbham, 29 Neb. 360; Becker ». Janinski; 15 N. Y. S. Rep. 
 675 ; 27 Abb. N. C. 45 ; Hitchcock v. Burget, 38 Mich. 501 ; Hesse v. Knippel, 
 1 Mich. N. P. 109; Getchell v. Hill, 21 Minn. 464; Getchell v. Lindley, 24 
 Minn. 265; Reynolds v. Graves, 3 Wis. 416; Gates v. Fleischer, 67 Wis. 
 504; Briggs v. Taylor, 28 Vt. 180; Wood v. Clapp, 4 Sneed (Tenn.), 65; 
 Alder v. Buckley,! Swan, 69; Graham©. Gaufier, 21 Tex. HI; Hathorn 
 V. Richmond, 48 Vt. 557; Potter v. Warner, 91 Pa. St. 362; Haire v. Reese, 
 7 Phila. Rep. 138 ; Eowler v. Sergeant, 1 Grant Cas. 355 ; Small v. Howard, 
 128 Mass. 131;. Branner v. Stormont, 9 Kan. 51; XJtley v. Burns, 70 HI. 
 162; Eischer v. Niccolls, 2 111. App 484; Quinn v. Donovan, 85 111. 194 ^ 
 Ijong». Morrison, 14 Ind. 595; Jones v. Angell, 95 Ind. 376; Tefft v. Wil- 
 cox, 6 Kan. 46; Peck v. Martin, 17 Ind. 115; Gramm v. Boener, 56 Ind. 
 497 ; Holtzman v. Hoy, 19 111. App. 459 ; Landon ■». Humphrey, 9 Conn. 
 209; Ritchey v. West, 23 111. 385; McNevins v. Lowe, 40 111. 209; Kendall 
 V. Brown, 74111. 232; Barnes v. Means, 82 111. 379. 
 
 There is an exception to the general rule requiring skill in favor of 
 persons who act dnring an emergency or who volunteer to act without, 
 professing special qualifications. Higgins v. McCabe, 126 Mass. 13;, 
 Beardslee v. Richardson, 11 Wend. 25; Gladwell v. Steggall, 6 Bing_ 
 (N. C.) 733. 
 On the subject of competence aeepost, p. 389. 
 
28 PKINCIPLES OF LIABILITY. 
 
 must be reasonably skilled at his peril. As the Eomans 
 put it, imperitia culpae adnumeratur (f). 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. 
 
 Exception of Necessity. An exception to this principle 
 .appears to be admissible in one uncommon but possible 
 kind of circumstances, ijamely, where iu emergency, and 
 to avoid imminent risk, the conduct of something generally 
 entrusted to skilled persons is taken by an unskilled person ; 
 as if the crew of a steamer were so disabled by tempest or 
 sickness that the whole conduct of the vessel fell upon an 
 engineer without knowledge of navigation, or a sailor 
 without knowledge of steam-engines. So if the driver and 
 stoker of a train were both disabled, say by sunstroke or 
 lightning, the guard, who is presumably unskilled as con- 
 cerns driving a locomotive, is evidently not bound to 
 perform the driver's duties. So again, a person who is 
 present at an accident requiring immediate " first aid," no 
 skilled aid being on the spot, must act reasonably according 
 to common 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 more is 
 required of a person in this kind of situation than to make 
 a prudent and reasonable use of such skill, be it much or 
 little, as he actually has. 
 
 if) D. 60. 17, de dlv. reg. inrls antlqnl, (g) Hammock v. White (1862), 11 CBN 
 
 132 ; cf. D. 9. 2, ad legem AqirtUam, 8. S. 688, 31 L. J. C. P. 129 ; mimm v. Mather 
 Both passages are from Gains. (1875) , L. E. 10 Ex. 261, U L. J. Ex. 176. 
 
CONSEQUENCES OP ACT OR DEFAULT. 29 
 
 £iiability in relation to consetiueiices of act or default. 
 
 We shall now consider for what consequences of his acts 
 
 Liability in relation to consequences, of act or default. A compre- 
 hensive statement of the law of this subject is that contained in the 
 opinion of the court in the leading case of McDonald v. Snelling (14 Allen, 
 290) : " Where a right or duty is created wholly by contract, it can only 
 be enforced between the contracting parties; but where the defendant 
 has violated a duty imposed upon him by the common law, it seems just 
 and reasonable that he should be held liable to every person injured, 
 .whose injury is the natural and probable consequence of the misconduct. 
 In our opinion this is the well-established and ancient doctrine of the 
 common law, and such a liability extends to cousequentiaMnjuries, by 
 whomsoever sustained, so long as they are of a character likely to fol- 
 low, and which might reasonably have been anticipated as the natural and 
 probable result, under ordinary circumstances, of the wrongful act." 
 See Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353; 1 Am. Rep. 431 ; ^tna 
 Ins. Co. V. Boone, 95 U. S. 130; Hoag v. Lake Shore, etc., R. Co., 85 Pa. 
 St. 293; 27 Am; Rep. 653; Salem Bank v. Gloucester Bank, 17 Mass. 1; 
 Dunlap 17. Wagner, 85 Ind. 529; Henry ». Dennis, 93 Ind. 452; Ryan v. 
 Miller, 12 Daly, 77; Brown v. Howard Ins Co., 42 Ind. 384; 20 Am. Rep. 
 90; Scott V. Hunter, 46 Pa. St. 192; Baltimore & P. R. R. Co. v. Reaney, 
 42 Md. 117; Marble v. Worcester, 4 Gray, 395; Campbell v. Stillwater, 32 
 Minn. 308. 
 
 In McGrew v. Stone (53 Pa. St. 436), the maxim Injure causa proxima 
 non remota speotatur is said by the court to mean : " When one is engaged 
 in an act which the circumstances indicate may be dangerous to others, 
 and the event whose occurrence is necessary to make the act injurious, 
 can be readily seen as likely to occur under the circumstances, the de- 
 fendant is liable if he does not take all the care which prudence would 
 suggest to avoid the injury." But the consequence may not flow naturally 
 and directly from the alleged cause, as some other force may intervene 
 and then the cause is said to be " remote" and insufficient to warrant a 
 recovery. 
 
 Thus where a train was lorty-flve minutes late when a gust of wind 
 threw it from the track and injured a passenger; it was held that though 
 the train would have escaped the gust of wind had it been on time, yet 
 the accident was neither the natural nor probable consequence of the 
 delay, and only an independent force took advantage of it and the road 
 was not liable to the passengeis McClary v. Sioux City, etc., R. R., 3 
 
 Neb. 44. 
 
 " A party who by contract is entitled to all the articles manufactured 
 by a certain company, he furnishing the raw materials, cannot main- 
 tain an action against a wrong-doer who by trespass, stops the 
 machinery of the company and obstructs its operations in performing 
 the contract." Cooley oo Torts, 75; Dale v. Grant, 34 N. J. L. 142, 
 
30 PKINCIPLES OF LIABILITY. 
 
 and defaults a man is liable. When complaint is made 
 that dl^^person has caused harm to another, the first ques- 
 tion is whether his act (A) was really the cause of that 
 harm in a sense upon which the law can take action. The 
 harm or loss may be traceable to his act, but the connexion 
 may be, in the accustomed phrase, too remote. The maxim 
 ^'In iure non remota causa sed proxima spectatur " is 
 Englished in Bacon's 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 
 
 (A) For sho^nees' sake I shall often use the word "act" alone as egnivalent 
 to " act or default." 
 
 citing Connecticut Ins. Co. v. New York, etc., R. I. Co., 25 Conn. 265; 
 Anthony ». Slaid, 11 Met. 290; Rockingham Ins. Co. v. Boscber, 39 Me. 
 253. See Zierv. Hofflin, 33 Minn. 66; Austin v. Barrows, 31 Conn. 287; 
 Brookes. Tradesmaa's lifat. Bank, 69 Hun, 202; 23 N. Y. S. Rep. 802; 
 Swift V. Eastern Warehouse Co., 86 Ala. 294; 5 So. Rep. 505; Jex v. 
 Strauss, 55 N. Y. Superior Ct. 62; Malone u. Pittsburgh & L. E. R. 
 Co., 152 Pa. St. 390; 25 At. Rep. 638; 31 W. N. C. 407; Kahl v. Love, 
 37 N. J. L. 5; McClelland v. Louisville, etc., Ry. Co., 94 Ind. 276. 
 
 A city is not liable for an accident caused by a horse's taking fright 
 at the sound caused by the wheel of the vehicle, which plaintiff is driving, 
 scraping against a stoi^e in the road, although such stone is an obstacle 
 over which a vehicle could not pass in safety. Bowes v. City of Boston, 
 155 Mass. 344; 29. N. E. Rep. 633. 
 
 By reason of a collision of railway trains a passenger was injured, 
 and becoming thereby disordered in mind and body he, some eight 
 months thereafter, committed suicide. Held, in a suit by his personal 
 representatives against the railway company, that as his own act was 
 the proximate cause of his death, they are not entitled to damages. 
 Scheffer v. Railroad Co., 105 U. S. 249. 
 
 If there is a defect in a hitching post, and the horse hitched to it is 
 frightened by the runuing away of another horse, and breaks the post 
 and runs over a person in the street, the latter cannot maintain an 
 action for the defect in the post as the cause of his injury. Rockford 
 V. Tripp, 83 111. 347. 
 
 A woman's illness caused by fright from the shooting of a dog in her 
 presence Is not such a consequence as would be supposed to naturally 
 follow the act. Renner v. Canfield, 36 Minn. 90. 
 
 Nor is a woman's premature delivery caused by a quarrel near her 
 house. Phillips v. Dickerson, 85 111. 11. 
 
MEASURE OF DAMAGES. 31 
 
 'with the immediate cause; and judgeth of acta by that, 
 -without looking to any further degree" (i). Liability 
 must be founded on an act which is the " immediate cause " 
 of harm or of injury to a x-ight. Again, there may have 
 "been an undoubted wrong, bat 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 distinction 
 •of proximate from remote consequences is needful first to 
 ascertain whether there is any liability at all, and then, if 
 it is established that wrong has been committed, to settle 
 the footing on which compensation for the wrong is to be 
 iiwarded. 
 
 Measure of damages. The normal form of compensa- 
 lion for wrongs, as for breaches of contract, in the proced- 
 ure 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 footing upon which they 
 should calculate the damages if their verdict is for the 
 plaintiff. This footing or scheme is called the " measure of 
 •damages." Thus,, in the common case of a breach of con- 
 tract for the sale of goods, the measure of damages is the 
 difference between the price named in the contract arid the 
 market value of the like goods at the time when the con- 
 tract was broken. In cases of contract there is no trouble 
 in separating the question whether a contract has been made 
 and broken from the question what is the proper measure 
 of damages (I), But in cases of tort the primary question 
 
 (i) Maxims of the Law, Reg. 1. It Is (i) Hadley v. Baxendale (1854), 9 Ex- 
 
 remarkable that not one of the examples 341, 23 L. J. Ex. 17n. 
 adduced by Bacon belongs to the law of (.1) Whether It is practically worth 
 
 torts, or raises a question of the measure while to sue on a contract must, indeed, 
 
 of damages. There could be no stronger often turn on the measure of damages, 
 
 lllnatration of the extremely modern But this need not concern us here, 
 "character of the whole subject as now 
 understood. 
 
32 PRINCIPLES OF LIABILITY. 
 
 of liability may itself depend, and it often does, on the 
 nearness or remoteness of the harm coraplained^f. Ex- 
 cept where we h'ave an absolute duty and an act which 
 manifestly violates it, no clear line can be drawn between 
 the rule of liability and the rule of compensation. The 
 measure of damages, a matter appearing at first sight to 
 belong to the law of remedies more than of " antecedent 
 rights," constantly involves, in the field of torts, points 
 that are in truth of the very substance of the law. It is 
 under the head of " measure of damages " that these for 
 the most part occur in practice, and are familiar to lawyers; 
 but their real connexion with the leading principles of the 
 subject must not be overlooked here. 
 
 Meauin^ of " immediate cause." The meaning of the 
 term " immediate cause " is not capable ofi perfect or gen- 
 eral definition. Even if it had an ascertainable losical 
 meaning, which is more than doubtful, it would not follow 
 that the legal meaning is the same. In fact, our maxim 
 only points out that some consequences are held too remote 
 to be counted. What is the test of remoteness we still have 
 to inquire. The view which I shall endeavour to justify ia 
 that, for the purpose of civil liability, those consequences, 
 and those only, are deemed " immediate," " proximate," 
 or, to anticipate a little, " natural and probable," which a 
 person of average competence and knowledge, being in the 
 like case with the person whose conduct is complained of, 
 and having the like opportunities of observation, might be 
 expected to foresee as likely to follow upon such conduct. 
 This is only where the particular consequence is not known 
 to have been intended or foreseen by the actor. If proof 
 of that be forthcoming, whether the consequence was 
 " immediate " or not does not matter. That which a man 
 
 Meaning of " Immediate Cause." See American notes to Proximate 
 Cause, post, p. 419. 
 
CONSEQUENCES. 33 
 
 actually foresees is to him, at all events, natural and 
 probable y* ^^ 
 
 Liiability for consequences of wilful act. In the case of 
 wilful wrong-doing we have an act intended to do harm, 
 and harm done by it. The inference of liability from such 
 an act (given the general rule, and assuming no just cause 
 of exception to be present) may seem a plain matter. 
 But even in this first case it is not so plain as it seems. 
 We have to consider the relation of that which the wrone- 
 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. 
 
 It extends to some consequences not intended. But 
 
 the consequences may be more than was intended, or differ- 
 ent. 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, 
 
 Liability for consequences of wilful act. Malicious motives, alone, 
 can never constitute a causd of action; bat where the allegations are 
 sufficient to sustain the action, independent of malice, it may be alleged 
 and proved in enhancement of damages. Jenkins v. Fowler, 24 Pa. St. 
 308; Fowler v. Jenkins, 28 Id. 176; Mahan v. Brown, 13 Wend. 261; 
 Stevens v. Eelley, 78 Me. 445 ; Jones v. Jones, 77 111. 562 ; Burke v. Smith, 
 69 Mich. 380; Hatch v. Pendergast, 15 Md. 251; 37 N. W. Bep. 838; Hay- 
 wood V. Tompkins, 24 N. J. L. 426; Thornton v. Thornton, 63 N. C. 211 ; 
 Jenks V. Williams, 115 Mass. 217; Heywood v. Tillson, 75 Me. 225; Ban- 
 gor, etc., E.B. V. Smith, 49 Me. 9; Morris v. Scott, 21 Wend. 281; Jack- 
 sonville, T. & K. W. Ey. Co. v. Peninsular Ijand, etc.^ Co., 27 Fla. 157; 
 9 So. Eep. 679; Auburn, etc., R. Co. v. Douglass, 9 N. Y. 444; Stearns v. 
 Sampson, 59 Me. 568; White v. Carroll, 42 N. Y. 161; Johnson v. Benton, 
 36 Neb. 898; 63 N. W. Eep. 996; Johnson v. Chicago, etc., E. Co., 51 la. 
 26; 50 N. W. Rep. 643; Glendon Iron Co. v. Uhler, 75 Pa. St. 467; South 
 Royalton Bank v. Suffolk Ban^, 27 Vt. 605; West v. Forrest, 22 Mo. 341; 
 Smith V. Goodman, 75 Ga. 198; Hawes o. Knowles, 114 Mass. 519. 
 
 3 
 
34 PRINCIPLES OF LIABILITY. 
 
 but Pistol falls on a heap of stones which cut and bruise 
 him. Or they are on the bank of a deep ditch; Nym does 
 not mean to put Pistol into the ditch, but his blow throws 
 Pistol off his balance, whereby Pistol does fall into the 
 ditch, and his clothes are spoilt. These are simple cases 
 I where a different consequence from that which was intended 
 happens as an incident of the same action. Again, one of 
 Jack Cade's men throws a stone at an alderman. The 
 stone misses the alderman, but strikes and breaks a jug of 
 beer-which another citizen is can-ying. Or Nym and Bar- 
 dolph agree to waylay and beat Pistol after dark. Poins 
 comes along the road at the time and place where they 
 expect Pistol; and, taking him for Pistol, Bardolph and 
 Nymn seize and beat Poins. Clearly, just as much wrong 
 is done to Poins, and he has the same claim to redress, 
 as if Bardolph and Nym meant to heat Poins, and not 
 Pistol (m). Or, to take an actual and well-known case in 
 our books (n), .Shepherd throws a lighted squib into a 
 building full of people, doubtless intending it to do mis- 
 chief of some kind. It falls near a person who, by an 
 instant and natural act of self-protection, casts it from him. 
 A third person again does the same. In this third flight 
 the squib meets with Scott, strikes him in the face, and 
 explodes, destroying the sight of one eye. Shepherd 
 neither threw the squib at Scott, nor intended such grave 
 
 (m) In criminal law there Is some See Dr. K. Franz, " Vorstellung nnd 
 
 difficulty in the case oJ attempted per- Wille In der modernen Dolnslehre " 
 
 sonal offences. There is no doubt that Ztsch. fiir die gesamte Strafrechtswis- 
 
 U A. shoots and kills or wounds X., senschatt, x, 169. 
 
 under the belief that the man he shoots (n) Scott v. Shepherd, 2 W. Bl. 892- 
 at is Z., he is in no way excused by the and in 1 Sm. L. 0. No doubt was enter- 
 mistake, and cannot be heard to say tained of Shepherd's liability ; the only 
 that he had no unlawful intention as to question being in what form of action 
 X. : iJ. V. Smith (1855), Dears. 569. But he was liable. The inference of wrong- 
 if he misses, it seems doubtful whether ful intention is in this case about as 
 he can be said to nave attempted to kill obvious as it can be; it was, however 
 either X. or Z. Of. X. v, Latimer (1886), not necessary, squib-throwing as Nares 
 17 Q. B. D. 389, 55 L. J. M. 0. 135. In J. pointed out, having been declared a 
 Germany there is a whole literature of nuisance by statute, 
 modern controversy on the subject. 
 
CONSEQUENCES. 35 
 
 harm to any one ; but he is none the less liable to Scott. 
 And so in the other cases put, it is c|ear 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. 
 
 " Natural consequeiices : " relation of the rule to the 
 actor's intention. This principle is commonly expressed 
 in the maxim that " a man is presumed to intend the 
 natural consequences of his acts: " a proposition, which, 
 with due explanation und within due limits, is accept- 
 able, but which in itself is ambiguous. To start from 
 the simplest case, we may know that the man intended 
 to 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 boast- 
 ing 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 td Pistol and knock 
 him down, we infer that Pistol's fall was intended by Nym 
 as the consequence of the blow. We may be mistaken in 
 this judgmejit. P^ossibly 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 inten- 
 
 " Natural Consequences : " relation of the rule to the actor's in- 
 tention. The maxim that "a man is presumed to intend the natural 
 consequences of his acts " is accepted as true. See authorities estab- 
 lishing and illustrating its application, ante, p. 26, post, pp. 30, 36. " The 
 foundation of the maxim lies in the fact that when it said that from cer- 
 tain acts the law presumes an Intent, what is meant is that the intention 
 with which the act is done is immaterial. Thus, one who in sport inten- 
 tionally threw a piece of mortar at another without meaning to harm him, 
 and injured a third person, is liable to the person struck. Peterson v. 
 Haffner, 59 Ind. 130. 
 
36 PRINCIPLES OF LIABILITY. 
 
 tion, and the chances are greatly in favour of our being 
 right. So nobody could doubt that when Shepherd threw 
 a lighted squib into a crowded place he expected and meant 
 mischief of some kind to be done by it. Thus far it is a 
 real inference, not a 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 was there; or, if he did know, 
 whether he meant Pistol to fall into it. These questions 
 are like enough to be fnsoluble. How shall we deal with 
 them? We shall disregard them. From Nym's point of 
 view his purpose may have been simply to knock Pistol 
 down, or to knock him into the ditch also; from Pistol's 
 point of view the grievance is the same. The wrong-doer 
 cannot call on us to perform a nice discrimination of that 
 which is willed by him from that which is only conse- 
 quential on the strictly wilful wrong. We say that inten- 
 tion 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. 
 
 Meaning of "natural and probable" consequence. 
 
 The habit by which we speak of presumption comes 
 
 Meaning of '■ Natural and Probable " consequences. A " natural 
 and .probable consequence" flows from a "natural and probable" or 
 "proximate" cause. Natural consequences are always proximate. 
 The leading American case on this subject is Milwaukee & St. 
 P. Ry. Co. V. Kellogg (94 U. S. 474), in which the court said: 
 "The primary cause may be the proximate cause of a disaster, 
 though it may operate through successive instruments, as an article at 
 the end of a chain may be moved by a force applied at the other end 
 that force being the proximate cause of the movement; or, as in the oft- 
 
CONSEQUENCES. 87 
 
 probably from the time when, inasmuch as parties could 
 not give evidence, intention could hardly ever be matter 
 of direct proof. Under the old system of pleading and 
 
 cited case ot the squib in the market place. Scott v. Shepherd, 2 Black. 
 W. 892. The question always is, was there an unbroken connection be- 
 tween the wrongful act and the injury, a continuous operation? Did the 
 facts constitute a continuous succession of events so linked together as 
 to make a natural whole, or was there some new and independent cause 
 intervening between the wrong and injury? " 
 
 Consequences whicH follow in unbroken sequence, without an inter- 
 vening sufficient cause, from the original wrong, are natural; and for 
 such consequences the original wrong-doer 18 responsible, even though 
 he could not have foreseen the particular results, provided that by the ex- 
 ercise of ordinary care he might have foreseen that some injury would 
 result from his act. Baltimore, etc., R. Co. v. Kemp, 61 Md. 74; 18 Am. 
 & Eng. R. Gas. 220; Terre Haute, etc., R. Co. ■». Buck, 69 InHTSJg; 
 T£Am. & Eng. R. Cas. 234; 49 Am. Rep. 168; Ricber «. Freeman, BO 
 N. H. 420; 9 Am. Bep. 267; Jeffersonville, etc., B. Co. 'v. Riley, 39 Ind. 
 568; Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 44; Binford v. Johnson, 
 82 Ind. 426; 42 Am. Rep. 508; Bellman v. Indianapolis, etc, R. Co., 
 76 Ind. 166; 6 Am. & K na.-JL Ca^, 41 : 40 Am. Bep. 230; Beau- 
 champ V. Saginaw Mining Co., 50 Mich. 163; 45 Am. Bep, 30; 
 Liming v. Dlinois Cent. R. Co., 81 la. 246; 47 N. W. Rep. 67; Lowery 
 V. Manhattan R. Co., 99 N. Y. 158; 2 3 Am.& Eng. R^ .Caa. 276; Brown 
 V. Chicago, etc., R. Co., 54 Wis. aJ^TTAmTX EdrTTj. Cas. 444; Hill 
 V. Windsor, 118 Mass. 251; Louisville, etc., R. Co. v. Krinning, 87 Ind. 
 351; Pittsb. S. By. Co. v. Taylor, 104 Pa. St. 306; Holmes v. Harrington, 
 20 Mo. Ap. 661; Allen v. Trnesdell, 135 Mass. 7?; Jacksonville, T. & K. 
 W. Ry. Co. V. Peninsular Land, etc., Co., 27 Fla. 157; 9 So. Bep. 678; 
 Childress v. Yonrie, Meigs, 661; Topeka v. Tattle, 5 Kan. 812. 
 
 This doctrine is followed in the case of Lowery v. Manhattan By. Co. 
 (99 N. Y. 158; 1 N. E. Rep. 608), In which the facts were, in substanre, 
 that Are from defendant's locomotive engine on its elevated tracks fell 
 upon a horse attached to a wagon in the street below, and upon the hand 
 of the driver, causing the horse to run away. The driver, after failing 
 in an attempt to stop the horse by driving against a post, intentionally 
 turned him against the curb stone to arrest his progress ; but the wagon 
 passed over the curbstone, threw out the driver, and ran over and injured 
 plaintiff. It was held by the court, that the defendant was liable, even 
 though plaintiff would not have been injured but for the driver's diver- 
 sion of the horse from the natural course it might havetaken, for though 
 there might have been an error of judgement on the driver's part he had 
 been placed by defendant's negligence in a position of sudden pain and 
 surprise, excusing him from ordinary pradenee.. 
 
38 PEINCIPLES OF LIABILIXr. 
 
 procedure, Brain C. J. might well say, " the thought of 
 man is not triable " (o). Still there is more in our maxim 
 than this. For j^lthough we do not care whether the man 
 intended the particular consequence or not, we have in 
 mind such consequences as he might have intended, or 
 without exactly intending them, contemplated as possible; 
 so that it would not be absurd to infer as a fact that he 
 either did mean them to ensue, or recklessly put aside the 
 risk of some such consequences ensuing. This is the limit 
 introduced by such terms as " natural " — or more fully, 
 "natural and probable" — consequence (p). What is 
 natural and probable in this sense is commonly, but not 
 always, obvious. There are consequences which no man 
 could, with common sense and observation, help foreseeing. 
 There are others which no human prudence could have 
 foreseen. Between these extrelnes is a middle region of 
 various probabilities divided 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 
 understanding, the consequence not of the first wrongful 
 act at all, but'of something else that has happened in the 
 meanwhile, though, but for the first act, the event might 
 or could not have been what it was (g). But that point 
 cannot be defined by science or philosophy (r); and even 
 if it could, the definition would not be of much use for the 
 guidance of juries. If English law seems vague on these 
 
 (0) Year-Book, ITEdw. IV. 1, traus- (f Y. Rail. Co., L. E. 9 Q. B. at p. 268: 
 
 Jiilod in Blackbarn on Sale, at p. 193 In " In tort the defendant is liable for all 
 
 Ift cd., 261 lu 2nd ed. by Graham. the oonsequenoeB of his illegal act, 
 
 tp) " Normal, or likely or probable of when they are not so remote as to have 
 
 occurrence in the ordinary course of no direct connexion with the act, as by 
 
 things, would perhaps be the better ex- the lapse of time for instance, 
 pression : " Grove J. Iti Smith v. Green, ( r ) " The doctrine of causation," said 
 
 1 C. P. D. at p. 96. But what is normal Fry L. J., " involves much difficulty in 
 
 or likely to a specialist may not be nor- philosophy as in law: " Seton v. Lufone 
 
 mal or likely to a plain man's knowledge (1887), 19 Q. B. Div. at p. 74, 56 L. J. Q. 
 
 and experience. B. 115. 
 
 (g) Thus Quaiu J, said (,Snfe8byv. L. 
 
CONSEQUENCES. 39 ' 
 
 questions, it is because, in the analysis made necessary by 
 the separation of findings of fact from conclusions of law, 
 it has grappled more closely with the inherent vagueness of 
 facts than any other system. We may now take some 
 illustrations of the rule of " natural and probable conse- 
 quences " as it is generally accepted. In whatever form we 
 state it, we must remember that it is not a logical defini- 
 tion, but only a guide to the exercise of common sense. 
 The lawyer cannot afford to adventure himself with philos- 
 ophers in the logical and metaphysical controversies that 
 beset the idea of cause. 
 
 Vandenbupgli V. Truax. In Vandenburgh v . Truax (s), 
 decided by the Supreme Court of New York in 184?, the 
 plaintifi's servant and the defendant quarrelled in the street. 
 The defendant took hold of the servant, who broke loose 
 from him and ran away; " the defendant took up a pick- 
 axe and followed the boj', who fled into the plaintiff'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 (what- 
 ever the merits of the original quarrel) was clearly a wrong- 
 doer in pursuing the boy ; the plaintiff's house was a natural 
 place for his servant to take refuge in, and it was also 
 natural that the servant, " fleeing for his life from a man 
 in hot pursuit armed with a deadly weapon," should, in his 
 hasty movements, do some damage to the plaintiff's prop- 
 erty in the shop. 
 
 « 
 
 Guille V. Swan. There was a curious earlier case in the 
 same State (i), where one Guille, after going up in a balloon, 
 came down in Swan's garden. A crowd of people, attracted 
 by the balloon, broke into the garden and trod down the 
 
 ( « ) 4 Denio, 464. The decision seems ( t ) Guille v. Swan (1822) , 19 Johns. 381. 
 
 to be generally accepted as good law. 
 
 / 
 
40 PEINCIPLES OF LIABILITY. 
 
 vegetables and flowers. Gaille's descent was in itself 
 plainly a trespass ; and he was held liable not only for the 
 damage done by the balloon itself bat for that which was 
 done by the crowd. "If his descent under such circum- 
 stances 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" (u). In 
 both these cases the squib case was commented and relied 
 on. Similarly it has many times been said, and it is un- 
 doubted law, that if a man lets loose a dangerous animal in 
 an inhabited place he is liable for all the mischief it may 
 do. 
 
 liiability for consequences 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 wilful ; 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 bis descent will 
 cause no damage and excite no objection. Guille's liability 
 was accordingly the same as if the balloon had been under 
 
 ( u ) Per Spencer C. J. It appeared of Sess. C. 4th S. 32, is hardly so strong 
 
 that the defendant (plaintiff In error) for there a parachute descent was not 
 
 had called for help ; but this was treated only contemplated but advertised as a 
 
 as immaterial. The recent Scottish case public entertainment, 
 of Scott's Trustees v. Moss (1889), 17 Ct. 
 
 Liability lor oonseauenoea of trespass. H the act of trespass shows 
 a wanton disregard of the rights of others, actual malice need not be 
 shown. Baltimore, etc., K. Co. v. Boone, 46 Md. 344; Drohn v. Brewer 
 77 lU. 280; Baynor v. Nims, 37 Mich. 34; 26 Am. Bep. 493; Cheeney v, 
 Nebraska, etc., Stone Co., 41 Fed. Eep. 470; Wilson v. Gunning, 80 la' 
 331; 45 N. W. Eep. 920; Dexter v. Cole, 6 Wis. 319; Amlck v. O'Hara, 6 
 Blackf. 258; Gate v. Cate, 44 N. H. 211; Burch v. Carter, 32 N. J. L. 654, 
 See ISarage v. Fnllar, Brayt. 223. 
 
REMOTENESS OF DAMAGES. 41 
 
 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 ascribed to any fault of the 
 traveller the steering apparatus got out of order, and so the 
 balloon drifted into a neighbour's garden, the result might 
 be different. So, if a landslip carries away my land and 
 house from a hillside on which the house is built, and my- 
 self in the house, and leaves all overlying a neighbour's 
 field in the valley, it cannot be said that I am liable for the 
 damage to my neighbor's land ; indeed, there is not even a 
 technical trespass, for there is no voluntary act at all. 
 But where trespass to property is committed by a voluntary 
 act, known or not known to be an infringement of another's 
 right, there the trespasser, as regards liability for conse- 
 quences, is on the same footing as a wilful wrong-doer. 
 
 Conseqnence too remote : Glover v. L. & S. W. Bail 
 
 Co. A simple example of a consequence too remote to be 
 ground for liability, though it was part of the incidents 
 following on a wrongful act, is afforded by Glover v. 
 London and South Western Railway Company (u). The 
 plaintiff, 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 personal assault com- 
 mitted by taking him out of the train, but for the value of 
 these glasses. The Court held without difficulty that the 
 loss was not the " necessary consequence " or " immediate 
 result " of the wrongful act : for there was nothing to show 
 that the plaintiff was prevented from taking his glasses 
 with him, or that he would not have got them if after 
 leaving the carriage he had asked for them. 
 
 (r) (1867) L. E. 3 Q. B. 25, 37 L. J. Q. R 67. 
 
^ 
 
 42 PRINCIPLES OF LIABILITY. 
 
 Question of what is killing in criminal law. In 
 
 criminal law the question not unfrequently occurs^ on a 
 charge of murder or manslaughter, whether a certain act 
 or neglect was the " immediate cause " of the death of the 
 deceased person. We shall not enter here upon the cases 
 on this head; but the comparison of them will be found 
 interesting. They are collected by'Sir James Stephen (a;). 
 
 liiability for negligence depends on probability of 
 consequence, i. e.) its capability of being foreseen by a 
 reasonable man. The doctrine of " natural and probable 
 consequence" is most clearly illustrated, however, in the 
 
 (x) Digest of the Criminal Law, Arts. 219,220. 
 
 Liability lor negligence depends on probability of consequence. 
 The doctrine of the text has been generally accepted and applied by the 
 courts of the United States. Thus, in a leading case it was said : " The 
 true rule is that the injury must be the natural and probable consequence j 
 of the (defendant's) negligence — such a consequence, as, under the sur- 
 rounding circumstances of the case, might and ought to have been fore- 
 seen by the wrong-doer as likely to flow from his act. This Is not a 
 limitation of the maxim causa proximanonremota spectatur; it only affects 
 its 'application." Hoag v. Lake Shore, etc., R. Co., 85 Pa. St. 293 j 27 
 Am. Rep. 653. 
 
 In Henry v. Southern Pacific R. So. f50 Cal. 183), McKinstry, J., said : 
 " A long series of judicial decisions has defined proximate or immediate 
 and direct damages to be ordinary and natural results of the negligence 
 such as are usual, and therefore might have been expected." See 
 Goshen Turnpike Co. v. Sears, 7 Conn. 86; Pennsylvania R. Co. ». Hope 
 80 Pa. St. 373; 21 Am. Rep. 100; Pennsylvania R. Co. v. Kerr, 62 Pa. St. 
 353; 1 Am. Rep. 431 ; Phillips v. Dickerson, 85 111. 11; 28 Am. Rep. 607; 
 McGrew v. Stone, 53 Pa. St. 436; Doggett v. Richmond, etc., R. Co,, 78 
 N. C. 305; Chicago «. Starr, 42 111. 174; 89 Am. Dec. 422; Bellefontaine, 
 etc., R. Co. V. Snyder, 18 Ohio St. 399; 98 Am. Dec. 181; Harrison v. 
 Berkley, 1 Strobh. 525; 47 Am. Dec. 578; McDonald- ?;. Snelling, 14 Allen, 
 290; Campbell v. Stillwater, 32 Minn. 308; 60 Am. Rep. 567; McClary v, 
 Sioux City, etc., R. Co., 3 Neb. 44; Township of West Mahoney v. Wat 
 son, 112 Pa. St. 674; Louisville, etc., R. Co. v. Guthrie, 10 Lea, 432; 11 
 Am. & Eng. E. Cas. 478; Lane v. Atlantic Works, 111 Mass. 136; Hill 
 ». Windsor, 118 Mass. 261; Wabash, etc., R, Co v. Locke, 112 Ind. 
 404; Atchison v. Goodrich Transp. Co., 60 Wis, 141; Toledo etc. R. 
 Co. V. Muthersbaugh, 71 111. 672; Tutein v. Harley, 98 Mass. 211, 
 
 Where a railway company, through negligence by the escape of fire 
 
PROXIMATE OR REMOTE CAUSE. 43 
 
 law of negligence. For there the substance of the wrono- 
 itself is failure to act with due foresight: it has been 
 
 from its locomotive engine, sets fire to a depot, from wliioh a hotel in 
 the vicinity is destroyed, to make the company liable to the owner of the 
 hotel, " It was not at all necessary that the burning of the hotel should 
 be so certain to result from the burning of the depot that a reasonable 
 person could have foreseen that the hotel would burn, or that it would 
 probably burn. It is enough if it be a consequence so natural and direct 
 that a reasonable person might, and naturally would, see that It was 
 liable to result from the burning of the depot, — that is, that it might 
 follow." C. & A. E. R. Co. V. Pennell, 110 111. 446. 
 
 Where plaintifi was injured, while walking by the side of a railroad 
 track, by a cow which was thrown from the track by the engine, and 
 which fell against plaintifi after striking the ground, the injury is the 
 proximate consequence of the engine striking the cow. " The direct 
 cause was put in operation by the force of the engine, which continued 
 until the injury; and injuries directly produced by instrumentalities thus 
 put in operation and continued, are proximate consequences of the prim- 
 ary act, though they may not have been contemplated or foreseen. The 
 relation of cause and efEect between the primary cause and the Injury is 
 established by the connection and succession of the intervening circum- 
 stances." Ala. G. S. R. Co. ». Chapman, 80 Ala. 615. 
 
 Where the horses of a traveler, being frightened byi an overturn of 
 their load caused by a defect in the highway, escape from him, run ninety 
 rods, and collide with another traveler, the injury of the latter may be a 
 natural and probable consequence of the defect, for which the town'is 
 liable. Merriel v. Claremont, 58 N. H. 468. See Aldrich v. Gorham, 77 
 Me. 287; Hampson v. Taylor, 15 K. I. 283; 23 At. Eep. 732; Smalley i). 
 City of Appleton, 75 Wis. 18; Dickson v. Hollistei, 123 Pa. St. 421; 16 
 At. Eep. 484; 23 W. N. C. 128. 
 
 With regard to the spreading of negligent fires the decisions in the, 
 different States upon analogous statements of fact are not uniform; but 
 the weight of the authorities, and the true doctrine is, t hat proxi rpitynf 
 cause has no necessary connection with contigu' ty iff apipn o r nearness 
 of time. Thus, in the case of Chicago, St. L. & P. ,R. Co. v. Williams- 
 (131 Ind. 30 ; 30 N. B. Rep. 696) , it was held, that where a fire originated on 
 the defendant's right of way, and was carried by the wind to plaintiff's 
 property, though other lands Intervened over which the fire burned sev- 
 eral days-, and was several times partially subdued before reaching his 
 land, defendant is not relieved from the liability on the ground that its 
 negligence was not the proximate cause of the injury. See Tyler v. 
 Ricamore, 87 Va. 466; 12 S. E. Rep. 799; Marvin v. Chicago, M. & St. P. 
 Ry. Co., 79 Wis. 140; 47 N. W. Rep. 1X23; St. Lou^4, A. & T. Ry. Co. v. 
 McKinsey, 78 Tex. 298; 14 S. W. Eep. 645; Frace ». New York L. E. & 
 W. E. Co., 68 Hun, 325; 22 N. Y. S. Eep. 958; Adams v. Young, 44 Ohio 
 
44 PEINCIPLES OF LIABILITY. 
 
 defined as " the omission to do something which a reason- 
 able man, gaided upon those considerations which ordinarily 
 
 St. 80; Pennsylvania E, Co. v. Kerr, 62 Pa. St. 353; Atchison T. & S. F. 
 E. Co. V. Stafford, 12 Kan. 354; Del. L. & W. B. Co. v, Salmon, 39 N. 
 J. L. 300; Hoyt V. Jefters, 30 Mich. 181; Poeppers v. M. K. & P. Ry. Co^ 
 67 Mo. 716; Perley v. Eastern R. Co., 98 Mass. Hi; Fent v. Toledo, 
 etc., B. B. Co., 59 111. 349; 14 Am. Bep. 13; AtchlsOn, etc., R. Co. v. 
 Stafford, 12 Kan. 354; 15^ Am. Rep. 362; Krippner v. Blebl, 28 Minn. 139; 
 Burlington R. Co. v. Westorer, 4 Neb. 268; Salmon v. Delaware,- etc., R. 
 Co., 14 Am. Law Beg. 560; Pittsburg, etc., B. Co. v. Noel, 77 Ind. 110; 7 
 Am. & Eng. R. Cas. 524; Butcher v. Vaca V. etc., R. Co., 67 Cal. 518; 
 22 Am. & Eng. B. Cas. 644; Poeppers v. Missouri, etc., E. Co., 67 Mo. 
 715; Simmonds y. New York, etc. B. Co., 62 Conn. 264; 23 Am. & Eng. 
 E. Cas. 369. ' 
 
 Non-liability: examples. Where defendants, knowing a county treas- 
 urer to be a defaulter, loaned him money and certificates to enable him 
 to have his accounts audited, and to conceal his embezzlement from' the 
 board of county commissioners, after which he embezzled a further sum, 
 and fled from the territory ; it was held, that the damage that the county 
 sustained by reason of such act of defendants was too contingent, re- 
 mote, and indefinite to constitute a cause of action. County of Nelson 
 ». Northcote, 6 Dak. 378; 43 N. W. Bep. 897, citing Morgan v. Bliss, 2 
 Mass. Ill; Randall v. Hazelton, 12 Allen, 412. 
 
 The obstruction of a public crossing by a railroad train, thereby pre- 
 venting plaintiff from driving across for more than half an hour, does 
 not render the company liable for injuries to him caused by the fact that 
 at the end of that time his horse became frightened and ran away at the 
 approach of a second engine and train. " The damages resulting from 
 the fright of the horse were too remote, as a consequence of the obstruc- 
 tion of the public road." Stanton v. Louisville & N. E. Co., 91 Ala. 382; 
 8 So. Eep. 798. 
 
 Another case, involving the connection of defective highways with in- 
 jury to travellers, is that of Schaeffer v. Township of Jackson (150 Pa. 
 St. 145; 24 At. Rep. 629), in which the facts were that plaintiff had been 
 driven safely past a hole In the road and a pile of stones negligently 
 placed by the town supervis^ors on a highway. "When about 120 feet be- 
 yond this obstruction plaintifE's horse became frightened by a dopkey 
 turned short around, breaking a wheel of the buggy, and ran back, one 
 axle dragging on the ground. The dragging axle caused the buggy to be 
 drawn to the side of the road, where it caught in the hole. The buggy 
 was upset and the plaintiff was thrown out upon the stone pile and in- 
 jured. It was held, that the township was not liable, the occurrence 
 being extraordinary, and not the natural and probable result of the neg- 
 ligence, but of an independent, primary, efficient, proximate cause. 
 Upon remoteness of cause of injury arising out of negligence, see 
 
PROXIMATE OR RKMOTE CAUSE. 45 
 
 regulate the conduct of human affairs, would do, or doing 
 'something which a prudent and reasonable man would not 
 <^o " (y)- ' Now a reasonable man can be guided only by a 
 reasonable estimate of probabilities. If men went about to 
 guard themselves against every risk to themselves or others 
 which might by ingeniousconjecture be conceived as possible, 
 human affairs could not be carried on at all. The reason- 
 able man, then, to whose ideal behaviour we are to look as 
 the standard of dyty, will neither neglect what he can fore- 
 cast as probable, nor waste his anxiety on events that are 
 barely possible. He will order his precaution by the meas- 
 ure 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 complained of is not such as a reasonable 
 man in the defendant's place should have foreseen as likely 
 to happen, there is no wrong and no liability. And the 
 statement proposed, though not positively laid down, in 
 Greenland v. Chaplin (z), namely, " that a person is 
 expected to anticipate and guard against ail reasonable 
 consequences, but that he is not, by the law of England, 
 expected to anticipate and guard against that which no 
 
 to) Aldeison B. In Blythe t. Sirming- cedent gronnd of duty. Bnt of that 
 
 Jiam Waterworks Co. (1836), 11 Ex. 781, 25 hereafter. 
 
 L. J. Ex. 213. This is not a complete (g) Per Pollock C. B. (1850), 5 Ex. at 
 
 definition, since a man is not liable for p. 248. 
 even wilfal omission withoat some ante- 
 
 Seale v. G. C. & S. F. Ry. Co., 65 Tex. 274; Reiper v. Nichols, 31 Hun, 
 491; Benson v. Cent. Pac. Ry. Co., 98 Cal. 45; 32 Pac. Rep. 809; Id. 33 
 Pac. Rep. 206; Western Ry. v. Mutch (Ala.), 11 So. Rep. 894; Barton v. 
 Pepin Co. Ag. Soc, 83 Wis. 19; 52 N. W. Rep. 1129; Texas & P, Ry. v. 
 Doherty (Tex. App.), 15 S. W. Rep. 44; Louisville & N. R. Co., v. Kel- 
 sey, 89 Ala. 287 ; 7 So. Rep. 648 ; Lowry v. St. Louis & H. Ry. Co., 40 
 Mo. Ap. 554; Childrey v. Huntington, 34 W. Va. 457; 12 S. E. Rep. 536; 
 South Side, etc., Co. v. Frich (Pa.), 11 At. Rep. 627; People v. Rock- 
 well, 39 Mich. 503; Nelson v. Chicago, etc.,Ry. Co., 30 Minn. 74; Railrpad 
 Co.o. Guthrie, 10 Lea, 432; Poland ». Earhart, 70 lf:2S5; Swifln v. Lowry, 
 37 Minn. 345; 34 N. W. Rep. 22. 
 
46 , PEINCIPLES OF LIABILITY. 
 
 reasbnable man would expect to occur," appears to contain 
 the only rule tenable on principle where the liability is 
 founded solely on negligence. " Mischief which could by ^ 
 no possibility have been foreseen, and which no reasonable 
 person would have anticipated," may be the ground of 
 legal compensation under some rule of exceptional severity, 
 :ind such rules, for various reasons, exist ; but under an 
 ordinary rule of due care and caution it cannot be taken 
 into, account. 
 
 Examples. We shall now give examples on either side 
 of the line. 
 
 Hill V. New River Co. 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 watching it, for the safety of persons using the 
 highway. As the plaintiff'shorsesand 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 purposes 
 unconnected with the water company. It was argued that 
 the immediate cause of the injuries to man, horses, and 
 carriage ensuing upon this fall was not the unlawful act of the 
 water company, but the neglect of the contractors who had 
 made the cutting in leaving it open and unfenced. But 
 the court held that the " proximate cause " was " the first 
 negligent act which drove the carriage and horses into the 
 excavation." In fact, it was a natural consequence that 
 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 harm as did 
 happen was probable enough, and it was immaterial for the 
 
 (a) 9 B. & S. 303 (1868); op. Harris \. Mobbs (Denman J. 1878), 3 Ex. D. 268, 
 which, perhaps, goes a step farther. 
 
PROXIMATE OR REMOTE CAUSE. 47 
 
 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 embank- 
 ment, or down a precipice, it would scarcely hiive been 
 possible to raise the doubt. 
 
 Williams V. G. W. Kail. Co. Williarnsv. Grreat Western 
 Raihvay Company (6) is a stronger case, if not an extreme 
 one. There were on a portion of the company's line in 
 Denbighshire two level crossings near one another, the rail- 
 way 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 22d December, 1871, the plaintiff, a child of 
 four and a-half years old, was found lying on the rails by 
 the footpath, with one foot severed from his body. There 
 was no evidence to show how the child had come there, 
 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 rail- 
 way, and farther from it than the point where the footpath 
 diverged from the road. It was suggested on the part of 
 the defendants that he had gone along the road, and then, 
 reaching the railway, had strayed down the line; and on 
 the part of the plaintiff, that he had gone along the open 
 footpath, and was crossing the line when he was knocked 
 down and injured by the passing train." 
 
 On these facts it was held that there was evidence proper 
 to go to a jury, and on which they might reasonably find 
 that the' accident to the child was caused by the railway 
 company's omission to provide a gate or stile. " One at 
 
 (J) li. B. 9 Ex. 157, 43 L. J. Ex. 1C5 (1874). Op. Bayes y. Michigan Central 
 Baa. Co. (1883), 111 U. S. 228. 
 
48 PEINCIPLES OF LIABILITY. 
 
 least of the objects for which a gate or stile is required is 
 to warn people of what is before them, and to make them 
 pause before reaching a dangerous place like a railroad " 
 (c). 
 
 Bailiffs of Romney Marsh v. Trinity House. In 
 
 Bailiffs of Romney Marsh v. Trinity House {d),& Trinity- 
 House cutter had by negligent navigation struck on a shoal 
 about three-quarters of a mile outside the plaintiffs' sea- 
 wall. Becoming unmanageable, the vessel was inevitably 
 driven by strong wind and tide against the sea-wall, and 
 did much damage to the wall. It was held without diffidtilty 
 that the Corporation of the Trinity House was liable (under 
 the ordiiifiry rule of a master's responsibility for his ser- 
 vants, of which hereafter) for this damage, as being the 
 direct consequence of the first default which rendered the 
 vessel unmanageable. 
 
 Lyncli V. Nurdin. Something like this, but not so 
 simple, was Lynch v. Nurd.in (e), wh.ere the owner o-f.a 
 horse and cart left them unwatched in the street; sorne 
 children came up and began playing about the cart, and as 
 one of them, the plaintiff in the cause, was climbing into 
 the cart another pulled the horse's bridle, the horse moved 
 on, and the plaintiff fell down under the wheel of the cart 
 and was hurt. The owner who had left the cart and horse 
 unattended was held liable for this injury. The Court 
 thought it strictly within the province of a jury " to pro- 
 nounce on all the circumstances, whether the defendant's 
 conduct was wanting in ordinary care, and the harm to the 
 
 (o) Amphlett B.' at p. 162. a bark, and disabled her; the bark was 
 
 id) L. K. 5 Ex. 204, 39 L. J. Ex. 163 ^1117011 on shore; held that the owners 
 
 (1870); in Ex. Oh. L. B. 7 Ex. 247 (1872). of the brig were liable for Injury ensning 
 
 This comes nearthccase of lettingloose from the wreck of the bark to persons 
 
 a dangerous animal ; a drifting vessel is on board her. 
 
 in Itself a dangerous thing. In TJie (e) 1 Q. B. 29, 10 L. J. Q. B. 73 (1841); 
 
 George and Richard, L R. 3 A. & E. 466, cp. Clark v. Chambers, 3 Q. B. D. at p. 
 
 a brig by negligent navigation ran into 331. 
 
PROXIMATE OK REMOTE CAUSE. 49 
 
 plaintiflf" such a result of it as might have been expected " 
 
 Contrasted cases of non-liability and liability. It will 
 be seea that on the whole the disposition of the Courts has 
 been to extend rather than to narrow the range of " natural 
 and probable consequences." A "pair of cases at first sight 
 pretty much alike in their facts, but in one of which the 
 claim succeeded, while in the other it failed, will show 
 where the line is dfawn. 
 
 Cox V. Burbidge, L.ee v. Riley. If a horse escapes into 
 a public road and kicks a person who is lawfully on the 
 road, its owner is not liable unless he knew the horse to be 
 vicious (g). He was baund indeed to keep his horse from 
 straying, but it is not an ordinary consequence of a horse 
 being loose on a road that it should kick human beings 
 without provocation. The rule is different however if a 
 horse by reason of a defective gate strays not into the road 
 but into an adjoining field where there are other horses, 
 and kicks one of those horses. In that case the person 
 whose duty it was to maintain the gate is liable to the 
 owner of the injured horse (/*). 
 
 Metropolitan Bail. Co. v. Jackson. The leading case 
 of Metropolitan Rail. Go. v. Jackson, (i) is in truth of 
 
 OS This case was relied on in Massa- had been that the shafts of the truck 
 
 chusetts in Pmvell v. Deveney I18i9) , 3 remained on the sidewalk, and the 
 
 Gush. 300, where the defendant's truck plaintiff afterwards stumbled on them 
 
 had, contrary to local regalations, been in the dark, it wonid be an almost exact 
 
 left oat in the street for the night, the parallel to Clark v. Chambers (3 Q. B. D. 
 
 shafts being shored up and projecting 327, 47 L. J. Q. B. 427 ; see below). 
 
 into the road ; a second truck was siml- (g) Cox v. JBwUdge (1863), 13 C. B. N. 
 
 larly placed on the opposite side of the S. 430, 32 L. J. C. P. 89. 
 
 road: the driver of a third truck, en- (ft) Lee v. JiUey (1865), 180. B. N. S. 722, 
 
 deavouring with due caution, as It was 34 L. J. C. P. 212. Both decisions were 
 
 found, to drive past through the nar- unanimous, and two judges (Erie C. J.. 
 
 rowedfairwa7thusleft,strucktbeshaft8 and Keating J.) took part in both. Op. 
 
 of the defendant's truck, which whirled Mllis v. Loftus Iron Co., L. E. 10 0. P. 10, 
 
 round and struck and injnred the plain- 44 L. J. C. F. 24. 
 
 tiff, who was on the sidewalk. Held, (i) 3 App. Ca. 193, 47 L. J. 0. P. 303 
 
 the defendant was liable. If the case (1877) . 
 
50 PRINCIPLES OF LIABILITY. 
 
 this class, though the problem arose and was considered, 
 in form, upon the question whether there was any evidtence 
 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 mom- 
 ent 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 differ- 
 ence of opinion in the courts below, mainly due to a too 
 literal following of certain previous authorities, the House 
 of Lords unanimously held that, assuming 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 hap- 
 pened if the carriage had not been overcrowded at all, j. 
 
 !N'on-liability for consequences of unusual state.'of 
 things: Blyth v. Birmingham Water-works Co. Unusual 
 conditions brought about by severe frost have more than 
 
 Non-liability lor consequences, ol unusual state of things. In the 
 case of Hoage. Lake Shore, etc., R. Co. (85 Pa. St. 293; 27 Am. Eep. 
 653J, the facts were, that owing to a sudden rain, an embankment was 
 detached and slid down upon the track. An oil train of defendant's com- 
 ing along a few minutes after the slide was thrown from the track by 
 this d((tached earth upon the track, the oil cars thrown off and the oil 
 spilled and set on Are, and thus running down into a creek below swollen 
 by the rain, was carried by the current several hundred feet to the build- 
 ings of plaintiff which were thereby set on fire and consumed. The 
 court decided as a matter of law th t the cause was too remote from its 
 consequence and refused to submit the question to the jury. 
 
 It has been held that a city is not liable for the Injury resulting to a 
 person from the breaking, in a violent wind, of a sound and properly 
 secured liberty pole.- Allegheny v. Zimmerman, 95 Pa. St. 287. 
 
 Where a bridge having become impassable, one who desired to carry 
 wood across piled It on the levee to await opportunity, and a flood car- 
 
PROXIMATE OR REMOTE CAUSE. 51 
 
 once been the occasion of accidents on which untenable 
 claims for compensation have been founded, the Courts 
 holding that the mishap was not such as the party charged 
 with causing it by his negligence could reasonably bo ex- 
 pected to provide against. In the memorable " Crimean 
 winter " of 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 ibe forcing out the 
 plug, as it afterwards seemed, and the water from the main 
 being dammed by Incnisted ice and snow above. The es- 
 caping water found its way through the ground into the 
 cellar of a private house, and the occupier sought to re- 
 cover from the comp^any for the damage. The Court held 
 that the accident was manifestly an extraordinary one, and 
 beyond any such foresight as could be reasonably re- 
 quired (7ir). 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 V. Powell., The later case of Sharp v. Powell 
 (I) goes farther, as the story begins with an act on 
 the' defendant's part which was a clear breach of the 
 law.. He caused his van to be washed in a public 
 street, contrary to the Metropolitan Police Act. The 
 
 (Jc) Blyth V. Birmingham Waterworks parison with the others here cited. Cp. " 
 
 Co. (1856), 11 Ex. 781, 25 L. J. Ex.212. Mayne on Damages, Preface to the first 
 
 The question was not really of remote- edition. 
 
 nesB of damage, bntwhether there was (J) L. E. 7 0. P. 253, 41 L.. J. 0. P. 93 
 
 any evidence of negligence at all ; never- (1872) . 
 theless the case is instrnctive for com- 
 
 ried it ofi; it was held, that a suit for the loss, as being occasioned by the 
 non-repair of the bridge, could not be maintained. Dubuque Wood, etc., 
 Assn. V. Dubuque, 30 la, 176. See Morrison ». Davis, 20 Pa. St. 171; 
 Hoadley v. Nor. Transp. Co., 115 Mass. 304; Scott v. Hunter, 46 Pa. St. 
 192. 
 
 The burning of a lot of cotton in a high wind by sparlss from a burn- 
 ing building was held to be not the proximate result of failing to forward 
 it promptly from the cotton yard. Wharfboat Assn. v. Wood, 64 
 Miss. 661. . 
 
52 PRINCIPLES OF LIABILITY. 
 
 water ran down a gutter, and would in fact (m) (but 
 f»r a hard frost which had then set in for ^ some time) 
 have run harmlessly down a grating /into the sewer, at 
 a corner some twenty-five yards from where the van 
 was washed. As it happened, the grating was frozen 
 over, the water spread out and froze into a sheet of ice, 
 and a led horse of the plaintiff's slipped thereon and broke 
 its knee. It did not appear that the defendant or bis 
 servants knew of the stoppage of the grating. The Court 
 thought the damage was not "within the ordinary conse- 
 quences " (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 be expected to foresee that the water would 
 accumulate aind freeze at the spot where the accident 
 happened" (p) 
 
 Question, it the same rule bolds for consequences of 
 wilful wrong : Clark v. Chambers. Some doubt ap- 
 pears to be cast on the rule thus laid down — which , 
 it is submitted, is the right one — by what was said 
 a few years later in Clark v. Chambers {q), though 
 not by the decision itself. This case raises the question 
 whether the liability of a wrong-doer may not extend eve« 
 to remote and unlikely consequences where the ori<rinal 
 wrong is a wilful trespass, or consists in the unlawful or 
 careless use of a dangerous instrument. The main facts 
 were as follows: — 
 
 1. The defendant without authority set a barrier, partly 
 armed with spikes (chevaux-de-frise), across a road subject 
 to other persons' rights of way. An opening was at most 
 times left in the middle of the barrier, and was there at 
 the time when the mischief happened. 
 
 i,m) So the Court found, having power (p) Bovill C. J. 
 
 to draw infereooes of faot. (5) 3 Q. B. D. 327, 47 L. J, Q, B. 427 
 
 (Ji) Grove J. (1878). 
 (0) Keating J. 
 
PROXIMATE OK REMOTE CAUSE. 53 
 
 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 harriers, 
 and set it on end on the footpath. It was suggested, but 
 not proved, that this was done by a person entitled to use 
 the road, in exercise of his right to remove the unlawful 
 obstruction. 
 
 4. Eeturning later in the evening from his friend's 
 boHse, the plaintiff, after safely passing through the central 
 opening above mentioned,.tumed on to the footpath. He 
 there came against the chevaux-de-frise thus displaced 
 (which he could not see, the night being very dark), and 
 one of the spikes put out his eye. 
 
 After a verdict for the plaintiff the case was reserved 
 for further consideration, and the Court (r) held that the 
 damage was nearly enough connected with the defendant's 
 first wrongful act — namely, obstructing the road with in- 
 struments 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 (Jlark v. Chambers, was 
 natural and probable enough to 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. PoteeU " as applic- 
 able to the circumstances of the particular case;" but their 
 final 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 author- 
 
 (r) CodcboTD C. J. and Manisty J. which is clearly antenable (see Scott v. 
 
 The point chiefly ar^ed lor the defend- Shepherd) ; bat the Jadgment is of Wider 
 
 ant seems to have "been that the tnter- scope, 
 ventian ei a third person's act pre- ( g ) 3 Q. B, D. at p. 338. 
 
 Tented Um from being liable ; a position 
 
54 PRINCIPLES OF LIABILITY. 
 
 ities (<). kowever, their conclusion may be supported, and 
 may have been to some extent determined, by the special rule 
 imposing the duty of what has been called "consummate 
 caution " on persons dealing with dangerous instruments. 
 
 Consequences natural in kind though not in circum- 
 stance. Perhaps the real solution is that here, as in Hill 
 V. New River Co., the kind of harm which in fact happened 
 might have been expected, though the precise manner in 
 which it happened was determined by an extraneous acci- 
 dent. 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 could 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 8harp 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. Chambers, 
 was, in this view, unnecessary, and it is tc be regretted that . 
 a considered judgment was delivered in a form tending to 
 unsettle an accepted rule without putting anything definite 
 in its place. On the whole, I submit that, whether 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. 
 
 Damages for " nervous or mental shock" whether too 
 remote. Where a wrongful or negligent act of A., threat- 
 
 ( t ) Compare the cases oi^ slander col- quential liability for disregard of statu- 
 lected In the notes to V^car8V. Wtlcocks, tory provisions, Gor»* v. 5ooW (1874), L. 
 2 Sm. L. C. Compare also, as to conse- R. 9 Ex. 125, IS L. J. Ex. 92, 
 
 Damages lor "nervous or mental shock" whether too remote. It 
 is a rule based upon the very best of reason that damages for fright, 
 
CONSEQUENCES. 55 
 
 ening Z. with immediate bodily hurt, but not causing such 
 hurt, produces in Z. a sudden terror or " nervous shock " 
 
 anguish, remorse, or any other abnormal mental condition, unaccom- 
 panied by an injury to the person, cannot be estimated, and are too 
 remote to warrant a recovery. Wilcox v. Richmond & D. R. Co., 52 Fed. 
 Rep. 264; 3 C. C. A. 73; 8 U. S. Ap. 118; Yoakum v. Dunn, 1 Tex. Cir. 
 Ap. 524; 21 N. W. Rep. 411; Indianapolis, etc., R. Co. v. Stables, 62 11!. 
 313; Oliver v. La Valle, 36 Wis. 698; Wyman v. Leavitt, 71 Me. 227; 36 
 Am. Rep. 303; Renner ». Canfleld, 36 Minn. 90; gOJi^W. ..Eap^435; 
 Ewing V. Pittsburg, eta,, Ry. Co., 147 Pa. St. 40; 23_At;_Rep^340; 29 W. 
 N. C. 248; Canning v. Williamston, 1 Cush. 451; Covington Street Ry. 
 Co. V. Pacfcer, 9 Bush. 455; Tex. Mex. Ry. Co. ». Douglas, 69 Tex. 694; 
 7 S. W. Rep. 7j^ ; Keyes v. Minneapolis & St. L. Ry. Co., 36 Minn. 290; 
 
 "iJO'KrWTRep. 888; Qnigley v. Central Pac. R. Co., 11 Nev. 350; Illi- 
 nois Cent. R. Co. v. Sutton, 53 111. 397; Dorrah v. Railroad Co., 65 
 Miss. 14; 3^Sp. Rep. 36. 
 
 In Bovee v. Danville (53 Vt. 190), in which a woman was caused by 
 the injury to give premature birth to twins, it was held that any injured 
 "feelings" following the miscarriage, not part of the pain naturally 
 attending It, are too remote to be considered an element of damage. 
 The court said: "If like Rachel, she wept for her children, and would 
 not be comforted, a question of continuing damage is presented too 
 delicate to be weighed by any scales which the law has yet invented." 
 While every well-considered decision supports this rule, the lack of 
 uniformity of the decisions upon the subject of liability of telegraph 
 
 /companies for delinquency in delivering messages to addresses is so sig- 
 nificant as to justify special notice. In a few of the States the courts 
 have essayed to compensate in money the grief or regret of the addressee 
 of a telegraphic message negligently delivered too late to permit him to 
 attend on the bedside of the ill or the obsequies of the dead ; although he 
 has suffered no pecuniary loss or bodily injury* Young «. Tel. Co., 107 
 N. C. 370; 11 S. E. Rep. 1044; Thompson v. W. U. Tel. Co., 107 N. C. 
 449; 13 S. E. Rep. 427; Gulf, C. &.S. F. Tel. Co. v. Richardson, 79 Tex. 
 649; 18 S. W. Bep. 689; W. U. Tel. Co. v. Berdue (Tex. Civ. App.), 21 S. 
 W. Rep. 982; Reese v. Telegraph Co., 123 Ind. 294; 24 N. E..Rep. 163; W. 
 U. Tel. Co. ■». Stratemeier (Ind. App.), 33 N. E. Rep. 871 ; W. U. Tel. Co. 
 V. Newhouse (Ind. App.), 33 N. E. Rep. 800; W. U. Tel. Co. v. Carter 
 (Tex. Civ. App.) 21 S. Rep. 688; W. U. Tel. Co. v. St^-phens (Tex. 
 Civ. App.;, 21 S. W. Rep. 148; W. U. Tel. Co. v. Beringer, 84'Tex. 38; 19 
 S, W. Rep. 336; Potts v. W. U. Tel. Co., 82 Tex. 543; 18 S. W. Rep. 604; 
 Stuart V. W. U. Tel. Co., 66 Tex. 580; 18 S. W. Rep. 351; Wadsworth v. 
 W. tJ. Tel. Co., 86 Tenn. 695; Am. St. Rep. 864; Loper v. W. U. Tel. 
 Co., 70 Tex. 689; Chapman v. W. U. Tel. Co. (Ky. App.), 13 S. W. Bep. 
 880; Reese v. W. U. Tel. Co., 123 Ind. 294; Stuart v. W. U. Tel. Co., 66 
 
56 PRINCIPLES OF LIABILTTr. 
 
 from which bodily illness afterwards ensues, is this damage 
 too remote to enter into the measure of damages if A.*s act 
 was an absolute wrong, or to give Z. a cause of action if 
 actual damage is the gist of the action ? The Judicial Com- 
 mittee decided in 1888 (u) that such consequences are too 
 remote; but it is submitted that the decision is not satis- 
 factory. A husband and wife were driving in a buggy 
 across a level railway Crossing, and, through the obvious 
 and admitted negligence of the gatekeeper, the buggy was 
 nearly but not quite run down by a train; the husband 
 " got the buggy across the line, so that the train, which 
 was going at a rapid speed, passed close to the back of it 
 and did not touch it." The wife then and there fainted, 
 and it was proved to the satisfaction of the Court be\ow 
 " that she received a severe nervous shock from the fright, 
 and that the illness from which she afterwards suflfered 
 was the consequence of the fright." It may be conceded 
 that the passion of fear, or any other emotion of the mind, 
 however painful and distressing it be, and however reason- 
 able the apprehension which causes it, cannot in itself be 
 regarded as measurable temporal damage ; and that the 
 judgment appealed from, if and so far as it purported to 
 allow any distinct damages for " mental injuries " (as), was 
 
 (,u) Victorian Railway Commis»ioners was the intention oi effect. See the re - 
 V. Coultas, 13 App. Oa. 222, 57 L. J. P. 0. port, 12 V. L. E. 895. The physical inju- 
 69. ^ V ties were substantial enough, for they 
 
 (X) It is by no means clear that such Included a mlscarrlaf^e (fbid.). Whether 
 
 — _ *- ' 
 
 Tex. 680; 69 Am. Kep. 623; 13 Am. & Eng. Corp. Cas. 590; W. U. Tel. 
 Co. V. Kosentreter, 80 Tex. 406. 
 
 The contrary is the sounder doctrine. In the tjpinipn of the court in 
 Chapman v. Western Union Telegraph Co. (88 Ga. 763 ; 15 S. W, Rep. 
 901) and in Telegraph Co. v. Eogers (G8 Miss. 748; 9 So. Rep. 823), the 
 authorities on both sides of the question are reviewed and the right of 
 recovery denied. See Judge Thompson's article on this subject in 33 
 Cent. Law Jl. 5, and Chase v. W. U. Tel. Co., 44 Fed. Bep,^ 564; W. U. 
 Tel. Co. V. Carter, 86 Tex. 580; 22 S. W. Rep. 961; Kster v. W. U. Tel. 
 Co., 66 Fed. Kep. 603; Connell v. W. U. Tel. Co., 22 S. W. Rep. 345; 
 Tyler v. W. U. Tel. Co., 64 Fed Rep. 634; Crawson v. W. XJ. Tel. Co., 47 
 Fed. Bep. 544. 
 
CONSEQUENCES. 57 
 
 erroneous. But their Lordships seem to have treated this 
 as obviously involving the further proposition that physical 
 illness caused by reasonable fear is on the same footing. 
 This does not follow. The true question would seem to be 
 whether the fear in which the plaintiff was put by the 
 defendant's wrongful or negligent conduct was such as, in 
 the circumstances, would naturally be suffered by a person 
 of ordinary ceurage and temper, and such as might there- 
 upon naturally and probably lead, in the plaintiff's case (y ) 
 to the physical effects complained of. Fear taken alone 
 falls short of being actual damage, not because it is a 
 remote or unlikely consequence, but because it can be 
 proved and measured only by physical effects. The 
 opinion of the Judicial Committee, outside the colony of 
 Victoria, is as extra-judicial as the contrary and (it is 
 submitted) better opinion expressed in two places (0) by 
 Sir James Stephen as to the possible commission of 
 murder or manslaughter by the wilful or reckless inflic- 
 tion of " nervous shock." And if the reasoning of the 
 Judicial Committee be correct, it becomes rather difficult 
 to see on what principle assault without battery is an 
 actionable wrong (a). 
 
 that was leaU; due to the fright ijas ( o ) Op. Mr. Seven's criticism of this 
 
 eminently a question of fact, and this case, Principles of the Law of NegU- 
 
 was not dls^tedor discussed. ~ gence,66— 71. As he jnstly points out, 
 
 (j^) This must be so unless w»^o back it has never been questioned that an 
 
 to the old (Jermanlo method of a fixed action may lie for damage done by an 
 
 scale of compensation. So, as regards animal which has been frightened bythe 
 
 the measure of damages when liability defendant's negligent act: Maiichester 
 
 Is not denied, the defendant has to take South Jn. B. Co. v. FitUerton (1S63), 14 O. 
 
 his chance of the person disabled being B. N. S. 5i; SimUn v. L. cf- N. W. B. Co. 
 
 aworkman, or a tradesman In a small (1888), 21 Q. B. Dlv. 453; 59 L. T. 797; 
 
 way, or a physician with a large practice. Brown v. Eastern and Midlands B. Co. 
 
 (z) Dig. Cr. Law, note to art. 221;Hist. (1889), 22 Q. B. Dlv. 391 ; 58 L. J. Q. B. 212. 
 Or. Law, ill. 5. 
 
58 
 
 CHAPTER in. 
 
 PEESONS AFFECTED BY TOETS. 
 
 1. — Limitations of Personal Capacity. 
 
 \ Personal status, as a rule, immaterial in law of tort : 
 but capacity in fact may be material. In the law of con- 
 tract various grounds of personal disability have to be 
 considered with some care. Infants, married women, 
 lunatics, are in different degrees and for different reasons 
 incapable of the duties and rights arising out of contracts. 
 In the law of tort it is otherwise. Generally speaking,, 
 there is no limit to personal capacity either in becoming 
 liable for civil injuries, or in the power of obtaining redress 
 for them. It seems on principle that where a particular 
 intention, knowledge, or state of mind in the person 
 charged as a wrong-doer is an element, as it sometimes is, 
 in constituting the alleged wrong, the age and mental 
 capacity of the person may and should be taken into 
 account (along with other relevant circumstances) in order 
 to ascertain as a fact whether that intention, knowledge, or 
 state of mind was present. But in every 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 incoherent words 
 of vituperation, though, if uttered by a sane man, they 
 
 (o) TJlplan, In D. 9, 2, ad leg. Aquil. est Terlsslmum. . . .' Quod si impn- 
 
 B, § 2. Quaerlmas, si f urlosns damnum . bes id f eoerit, Labeo alt, quia furti tene- 
 
 dederlt, an legis Aqnlliae actio sit? Et tnr, teneri et Aquilla eum; et tioo puto 
 
 Pegasus negavlt : quae enim in eo culpa Teium, si sit lam Injuilae capax. 
 Bit, cum suae mentis non sit? Et hoc 
 
PEKSOWAIi STATUS. 59 
 
 might be slander. But this would not help a mono- 
 maniac who should write libellous 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 matters where he was, in the common 
 phrase, old enough to know better. It is a matter of 
 common sense, just as we do not expect of a blind man 
 the same actions or readiness to act as of a seeing man. 
 
 Partial or apparent exceptions. There exist partial 
 exceptions, however, in the case of convicts and alien 
 enemies, and apparent exceptions as to infants and married 
 women. 
 
 Partial or apparent exceptions : Convict. The doctrine of the com- 
 mon law, that a coBvict is civiliter mortuus, is not trholly accepted in the 
 United States. 
 
 In Dade Coal Co. v. Haslett (83 Ga. 519 ; 10 S. E. Hep. 435), it is held, 
 that an action for personal injuries received while a felon, in confinement, 
 is maintainable. See WUlingham v. King, 23 Fla. 478 ; Cannon v. Wind- 
 sor, 1 Houst. 143. 
 
 Alien enemy. Upon the right of an alien enemy to sue and be sued in 
 the United States see McVeigh v. United States, 11 Wall. 259 ; McNair b. 
 Toler, 21 Minn. 175; Burnside v. Matthews, 54 N. Y. 78, 
 
 Lunatic. " By the common law, as generally stated in the books, a 
 lunatic is civilly liable to make compensation in person to persons in- 
 jured by Ms acts." Morain v. Devlin, 132 Mass. 87; citing Morse v. 
 Crawford, 17 Vt. 499; Cross v. Kent, 32 Md. 581; Bullock v. Babcock, 3 
 Wend. 391; Behrens !?. McKenzie, 23 la. 333; Lancaster Bank :;. Moore, 
 78 Pa. St. 407; Dickinson v. Barber, 9 Mass. 225; Brown v. Howe, 9 
 Gray, 84 ; Harding v. Larned, 4 Allen, 426 ; Harding v. Weld, 128 Mass. 
 587. See Mclntyre v. Sholty, 24 111. App. 605; afQrmed 121 111. 660; 13 
 N. £. Bep. 239. 
 
 But vindictive damages, in such a case, cannot be recovered. Ward 
 V. Conatser, 4 Baxti' 64; Krom v. Schoonmaker, 3 Barb. 647; Jewell v. 
 Colby (N. H.), 24 At. Rep. 902, 
 
 Drunkenness. Drunkenness as a defense to a tort may be properly 
 
60 PERSONS AFFECTED BY TORTS. 
 
 Convicts and alien enemies. A convicted felon whose 
 sentence is in force and unexpired, and wlio is not " law- 
 fully at large under any licence," cannot sue «' for the 
 recovery of any property, debt, or damage whatsoever" 
 (&). An alien enemy cannot sue in his own right in any 
 English court. Nor is the operation of the Statute of 
 Limitations suspended, it seems, by the personal disabil- 
 ity (c). 
 
 Infants: contract not to be indirectly enforced by 
 suing in tort. With regurd to infants, there were certain 
 cases under the old system of pleading in which there was 
 an option to sue for breach of contract or for a tort. In 
 such a case an infant could not be made liable for what 
 was in truth a breach of contract by framing the action ex 
 delicto. " You cannot convert a contract into a tort to 
 
 (6) 33 & 34 Viot. c. 23, 88. 8, 30. Can he (c) See Be Wahl v. Braune (1856) , 1 H. 
 
 sue for an injanetlon? Or tc^ a Si880la- & N. 178, 26 I>. J. Ex. 343 (alien enemy; 
 tion at marriage or judicial separation? the law muBt be the same of a coBvict). 
 
 mentioned here. The fact that a tort-feasor was intoxicated is not a 
 general defense; but, it seems, that his condition may be proved in miti- 
 gation of damages; however, this right has not yet been conceded. See 
 MixB. McCoy, 22 Mo. App. 488; McKee v. Ingalls, 5 HI. 30; Reed o. 
 Harper, 25 la. 87. 
 
 Infants ; Contract not to be indirectly enforced Tory smins in tort. 
 Agreeing with the text, oiole Gibson v. Spear, 38 Vt. 311; Merriam v. 
 Cunningham, 11 Gush. 40 ; Tucker o. Moreland, 10 Pet. 69 ; Wilt v. Welsh, 
 6 Watts. 9; Livingston v. Cox, 6 Pa. St. 360; Kean v. Caleman, 39 Id. 
 299; Curtin v. Patton, 11 Serg. & R. 309; Kilgore ». Jordan, 17 Tex. 341; 
 Carpenter v. Carpenter, 45 Ind. 142 ; Bums v. Hill, 19 Ga. 22. 
 
 But there is a tendency in equity to establish a contrary role, especi- 
 ally when the personal appearances of the infant indicates the truth of 
 his assertions of full age. Sehmitheimer v. Eiseman, 7 Bush. 298 ; Fitz 
 V. Hall, 9 N. H. 441; Uorris v. Vance, 2 Rich. 164; Rice v. Boyer, 108 
 Ind. 472; Hayes v. Parker, 41 N. J. Eq. 630; Ferguson v. B»bo, 54 Miss. 
 121; Brantley v. Wolf, 60 Miss. 420; Baker o. Stone, 136 Mass. 405; 
 Davidson v. Yomig, 38 III. 145; Dibble v. Jones, 6 Jone^ Eq. 389; Yeager 
 ». Knight, 60 Miss. 730. 
 
LIMITS OF rule: INDEPENDENT WEON&S. 61 
 
 enable you to sue an infant: Jennings v. EundaU"(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). 
 
 Limits of rule: independent wrongs. But where an 
 infant commits a wrong of which a contract, or the obtain- 
 
 id) 8 T. E. 335, 4 E. B. 680, thus cited the report fully cited by Knight Brace, 
 
 by Parke B., Fairhurst Liverpool Adel- V.-O. (1847) in Stikemam v. Dawson, 1 De 
 
 phi Loan Association (1834), 9 Ex. 422, Gr. & Sm. at p. 113 ; op. the remarks at p. 
 
 23 L. J. Ex. 163. 110. 
 
 (e) Johnson v. Pie, 1 Sid. 258, etc. See 
 
 Limits of the rule: Independent wrongs. Au infant Is liable for 
 injuries to property or person wrongfully committed by him. To be 
 excused from liability he must show his incapacity to know what would 
 be the natural cousequences ^f his act. Shaw v. Coffin, 68 Me. 254; i 
 Am.Bep. 290; Blwello. Martin, 32 Vt. 217; Huchtingc. Engel,17Wis. 230; 
 Marshall v. Wing, 50 Me. 62; School Dist. v. Bragdon, 23 N. H. 607; 
 McCoon V. Smith, 3 Hill, 147; Beckley v. Newcomb, 24 N. H. 363; Conway 
 V. Reed, 66 Mo. 346 ; 27 Am. Rep. 354; Peigne v. Sutcliffe, 4 McCord, 387; 
 17 Am. Dec. 756 ; Oliver v. McClellan, 21 Ala. 675 ; Peterson v. Haffner, 
 59'lnd. 130; 26 Am. Rep. 81 ; Barham v. Turbeville, 1 Swan, 437; Conkiin 
 V. Thompson, 29 Barb. 218; Matthews v. Cowan, 29 111. 341; Hartfleld v. 
 Roper, 21 Wend. 620; Schaefer v. Osterbrink, 67 Wis. 496; Baxters. Bush, 
 29 Vt. 465; Green o. Sperry, 16 Vt. 392; Lewis v. Littlefleld, 15 Me. 233; 
 Neal V. Gillett, 23 Conn. 437; Fry v. Leslie, 87 Va. 269; 12 S.E. Rep. 671. 
 
 An examination of the cases just cited will show that the intent of the 
 wrong-doer is immaterial, except in same cases as to the quantum of 
 damages. An infant who procures a tort to be committed is liable for 
 the result. Sikes v. Thompson, 16 Mass. 389; Tifft v. Tlfft, 4 Denio, 176. 
 
 An infant is, also, responsible for a tort committed at the command of 
 any one baying lawful authority over him. Humphrey v. Douglass, 10 
 Vt. 71; 33 Am. Dec. 177; Scott v, Watson, 46 Me/ 362; Kirkpatrick v. 
 Hall, 67 Me. 543 ; Smith v. Kron, 96 N. C. 392 ; Hutching v. Engel, 17 Wis. 
 230; School Dist. v- Bragdon, 23 N. H. 507. 
 
 ATI infant is not liable for his breach of contract however tortious the 
 case maybe. Doran v. Smith, 49 Vt. 533; 17 Am. Law Reg. (N. S.) 42; 
 Moore v. Eastman, 1 Hnn, 578; Hunger v. Hess, 28 Barb. 75; Studwell 
 V. Shatter, 54 N. Y. 249; West v. Moore, 14 Vt. 447; Prescott v. Norris, 
 32 N. H. 101; Campbel! v. Perkins, 8 N. T. 480;'Morrill v. Aden, 19 Vt. 
 505; Nolan v. Jones, 63 la. 387. 
 
 But this protection of the law Is accorded him only within the limits 
 of the contract and when he goes beyond the scope of the agreement 
 
bZ PERSONS AFFECTED BY TOKTS. 
 
 ing 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 itself on a fence and was fatally injured. 
 Having thus caused the horse to be used in a manner wholly 
 unauthorized by its owner, the defendant was held to have 
 committed a mere trespass or "independent tort" (pr), 
 
 (/) 14 O. B. N. S. 45, 32 L. J. C. P. 189 ment, and under the old forms of plead- 
 
 (1863). ing he wonid have been liable at the. 
 
 (,g) See perWiUesJ. If the bailment owner's election in case or in trespass 
 
 had be6n at will, the defendant's act vi et armie. See Litt. s. 71. 
 would have wholly determined the bail- 
 
 and does a wrong he is responsible. The wrongful act, not being con- 
 templated by the contract, Is independent of it, though concerned with 
 the subject of the contract, and of such a nature that, but for the oppor- 
 tunity created.by tbe contract, It could not have been committed. 
 
 Thus in Baton v. Hill (60 N. H. 235; 9 Am. Rep. 189) the court said: 
 " We think then that the doctrine is well established, thatan infant baUee 
 of a horse is liable for any positive and wilful tort done to the animal 
 distinct/from a mere breach of contract, as by driving to a place other 
 than the one from which he is hired, refusing to return upon demand 
 after the time has expired, wilfully beating him to death, and the like ; 
 so if he wilfully and intentionally drive him at such an immoderate rate 
 of speed as to seriously endanger his life, knowing that it will do so. 
 * * * But when * i= * the infant wholly departs from his char- 
 acter of bailee, and by some positive act wilfully destroys or injures the 
 thing bailed, the act is, in its nature, essentially a tort, the same as if 
 there had been no bailment, even if assumpsit might be maintained in 
 case of an adult, on a promise to return the thing safely." See Eay v. 
 Tubbs, 50 Vt. 688; 28 Am. Rep. 519; Touhe v. Wiley, 23 Vt. 355; Hall v. 
 Corcoran, JOT Mass. 251; Homer v. Thwing, 3 Pick. 492; Freeman v. 
 Boland, 14 R. I. 39; 51 Am. Rep. 340; Schenk ». Strong, 4 N. J. L. 87; 
 Campbell v. Stakes, 2 W«nd. 137; 19 Am. Dec. 561; Woodman v. Hub- 
 bard, 25 N. H. 73; Green v. Sperry, 16 Vt. 390; 42 Am. Dec. 519; Fish 
 V. Ferris, 5 Duer, 49. 
 
 This doctrine is, however, not free from criticisnl. See Livingston v. 
 Cox, 6 Pa. St. 360; Wilt v. Welsh, 6 Watts, 9; Penrose v. Curren, 3 
 Rawle, 351; 24 Am. Dec. 356; Root ». Stevenson, 24 Ind. 115; 1 Am. 
 Lead. Cas. 262. 
 
MARRIED WOMEN. 63 
 
 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. 
 
 Infant shall not take advantage of liis own fraud. 
 
 Also it has been established by various decisions in the 
 Court of Chancery that " an infant cannot take advantage 
 of his own fraud : ' ' that is, he may be compelled to specific 
 restitution where that is possible, of anything he has ob- 
 tained by deceit, ^lor can he hold other persons liable for 
 acts done on the faith of his false statement, which would 
 have been duly done if the statement had been true (A). 
 Thus, where an infant had obtained a lease of a furnished 
 house by representing himself as a responsible person and 
 of full age, the lease 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 {h). 
 
 Married women : the common law. As to married 
 women, a married woman was by the common law inca- 
 
 (A) Lempriere v. Lange C1879), 12 Oh. writer's " Principles ol Contract," p. 75, 
 D. 675 ; and see other cases in the 5th ed. 
 
 Manied Tsromen: the coiniiion law. A married woman is not liable 
 for her wrongs of the nature of violation of contract. Keen v. Coleman, 
 39 Pa. St. 299 ; Woodward v\ Barnes, 46 Vt. 332 ; 14 Am. Rep. 626 ; Owens v. 
 Snodgrass, 6 Dana, 229 ; Keen v. Hartman, 48 Pa. St. 497 ; Patterson v. 
 Frazer, 5 La. An. 586; Andrews v. Orsbee, 11 Mo. 400; Carleton o. Hay- 
 wood, 49 N. H. 314; Barnes ». Harris, Basb. L. 15 ; Weathersbee v. Farrar, 
 97 N. C. 106; Cross v. Everts, 29 Tex. 623; Ferguson v. Brooks, 67 Me. 
 251. But see, Anderson v. Line, 14 Fed. Kep. 760. 
 
 Generally, a husband is liable for all torts committed by his wife during 
 coverture. They may sue and be sued jointly for torts committed upon 
 or by the wife. Baker v. Young, 44 111. 42 ; Austin v. Bacon, 49 Hun, 
 386; 3 N. Y. S. Rep. 587; Thatcher u. Pbiinney, 7 Allen, 146; Ferguson v. 
 Collins, 8 Ark. 241 ; Dailey v. Houston, 58 Mo. 361 ; Jackson v. Kirby, 37 
 Vt. 448; Bobe v. Frowner, 18 Ala. 89 ; Hubble v. Forgartie, 3 Rich. 413; 
 Ball V. Bennett, 21 Ind. 427; Solomon ». Waas, 2 Hill. 179; Quilty «. 
 Battle, 136 N. Y. 201; 32 N. E. Rep. 47; Fowler v. Chichester, 26 Ohio St. 
 9; 10 Am. Dec. 698; Smith v. Smith, 45 Pa. St. 403; Genenzoi). De Forest, 
 
64 PERSONS AFFECTED BY TOETS. 
 
 pable of blading herself by contract, and therefore, like 
 an infant, she could not be made liable as for a wrong in 
 an action for deceit or the like, when this would have in 
 substance amounted to making her liable on a contract {i). 
 In other cases of wrOng she was not under any disability, 
 nor had she any immunity ; but she had to sue and be sued 
 jointly with her husband, inasniuch as her property was the 
 husband's; and the husband got the benefit of a favorable 
 judgment and was liable to the consequences of an adverse 
 one. 
 
 2 N. Y. S. Rep. 152; Dailey v. Houston, 58 Mo. 361; Marshall v. Oakes, 
 51 Me. 308 ; Starblrd v. Frankfort, 35 Me. 89 ; Hinds v. Jones, 48 Me. 348 ; 
 Bellous V. McGinnls, 17 Ind. 164; McKeown v. JohnSon, 1 McCord, 578; 
 Brazil v. Moran, 8 Minn. 236; Allen v. McCullough, 2 Heisk. 147; 6 Am. 
 Eep. 27; Enders v. Beck, 18 la. 86; McQueen v. Fulgham, 27 Tex. 463; 
 Anderson v. Hill, 53 Barb. 238; Horton v. Payne, 27 How. Pr. 374; Clark 
 V. Bayer, 32 Ohio St. 299; Illinois R. Co. v. Grabbe, 46 111. 445. 
 
 Also, a man may " marry a tort " when he marries a woman against 
 Whom a valid cause of action for tort exists. Ferguson v. Collins, 8 
 Ark. 241 ; Phillips v. Richardson, 4 A. E. Marsh. 212; Gibson v. Gibson, 43 
 Wis. 23 ; Hawk v. Harman, 5 Binn. 43. 
 
 For her torts committed in person a married woman is liable as if a. 
 feme sole. Dailey v. Houston, 58 Mo. 361; Matthews v. Fiestel, 2 E. D. 
 ■ Smith, 90; Carter v. Jackson, 66 N. H. 364; Ball v. Bennett, 21 Ind, 427; 
 Vanneman B. Powers, 56 N. Y. 39; Baum v. Mullen, 47 N. Y. 577; Kowing 
 V. Manley, 49 N. Y. 192; Heckle v. Lurvey, 101 Mass. 344; Davidson v. 
 Smith, 20 la. 466. 
 
 But one spouse cannot recover against the other for tort. Peters v. 
 Peters, 42 la. 183; Libby v. Berry, 74 Me. 28.6; Schultz v. Sohultz, 89 N. 
 Y. 684; Abbott v. Abbott, 67 Me. 304. 
 
 Since the husband and wife are, in legal contemplation, but one per- 
 son, the wife's torts committed in the presence of the husband are pre- 
 sumed to be impelled by his marital power and she is not liable at all. 
 Nolan V. Traber, 49 Md. 460; Ball v. Bennett, 21 Ind. 427; Kosminsky v. 
 Goldberg, 44 Ark. 401; Baker v. Young, 44 111. 42; Quick v. Miller, 103 
 Pa. St. 67; Brazil v. Moran, 8 Minn. 236; Park v. Hopkins, 2 Bailey, 
 411; Sisco B. Cheeney, Wright (Ohio), 19; Phillips «. Phillips, 7 B. Mon. 
 268. 
 
 But the presumption may be overthrown by evidence. Carleton v. 
 Haywood, 49 N. H. 314; Miller ». Switzer, 22 Mich. 391; Cassin v. Dela- 
 ney, 38 N. Y, 178; Chanviere v. Fliege, 6 La. An. 66; Clement v. Wafer, 
 12 Id. 699; Handy w. Foley, 121 Mass. 259; Wagner v. Bill, 19 Barb. 321; 
 Crawford v. Doggett, 82 Tex. 139; 17 S. W. Rep. 929. 
 
MARRIED WOMEN. 65 
 
 Married Women's Property Act, 1882. Since the Mar- 
 ried Woman's Property Act, 1882, a married woman can 
 acquire and hold separate property 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 property (Je). If a husband 
 and wife sue jointly for personal injuries to the wife, the 
 damages recovered are the wife's separate property (I). 
 She may sue her own husband, if necessary, " for the pro- 
 tection and security of her own separate property; " but 
 otherwise actions for a tort between husband abd wife 
 cannot be entertained {m). That is, a wife may sue her 
 husband in an action which under the old forms of plead- 
 ing would have been trover for the recoyery of her goods, 
 or for a trespass or nuisance to land held by her as her 
 separate property ; but she may not sue him in a civil action 
 for a personal wrong, such as assault, libel, or injury by 
 negligence. Divorce does not enable the divorced wife to 
 sue her husband for a personal tort committed during the 
 coverture (w). There is not anything in the Act to pre- 
 vent a husband and wife from suing or being sued jointly 
 according to the old practice ; the husband is nob relieved 
 from liability for wrongs committed by the wife during 
 
 (i) Fairhuray . Idverpool Adelphi Loam (J,) BeaaUy v. Boney, '91, 1 Q. B. 509,60 
 
 >4««0(»ai20n(18Sl}, 9 Ex. 422, 23 L. J. Ex. L. J. Q. B. 408. 
 
 163. (IK) Sect. 12. A trespasser on the 
 
 (*) 4S & 46 Vict. c. 75, 8. 1. The right wife's separate property cannot justffy 
 of action glTen by the statute applies to nnder the husband's authority. Whether 
 a cause of action which arose before It the husband himself could justify enter- 
 came into operation : Weldony. Wimalow, ing a house, his wife's separate prop- 
 (1884), 13 Q. B. DiT. 784, 63 L. J. Q. B erty, acquired as such before or since 
 528. In such case the Statute of Llmlta- the Act, in which she is living aparf , 
 tlon runs not from the committing of the qu<Bre; Weldon y. Xle .Ba^As (1884), 14 Q. 
 wrong, but from the commencement of B. Diy. 339, 54 L. J. Q. B. 113. 
 the Act: Lowey. Fox (1885), 15 Q. B. Div. (») PhUUpa y.Bamet (.lSie),lQ- B- Div. 
 667, 54 L. J. Q. B. 561. 436, 45 L. J. Q. B. 277. 
 
 Married women's property acts. In several of the United States 
 married women have been authorized by special legislative enactments, 
 to hold property, make contracts, sue and be sued as though unmar- 
 ried. 
 
66 PEKSONS ArFECTBD BY TORTS. 
 
 coverture, and may still be joined as a defendant at need. 
 If it were not so, a married woman having no separate 
 property might commit wrongs with impunity (o) . If hus- 
 band and wife are now jointly sued for the wife's wrong, 
 and execution issues against the husband's property, a 
 I question may possibly be raised whether the husband is 
 entitled to indemnity from the wife's separate property, if 
 in fact she has any (p). 
 
 Common law liability of infants and married women 
 limited, according to some, to wrongs contra pacem. 
 
 There is some authority for the doctrine that by the com- 
 mon law both infants (q) and married women (r) are 
 liable only fpr " actual torts " such as trespass, which were 
 formerly laid in pleading as contra pacem, and are not in 
 any case liable for torts in the nature of deceit, pr, in the 
 old phrase, in actions which " sound in deceit." But this 
 does not seem acceptable on principle. 
 
 Corporations. As to corporations, it is evident that 
 personal injuries, in the sense of bodily harm or offence, 
 
 (0) Seroka v. Kattenburg (1886), 17 Q. (r) WrigM v. Leonard (1861), 11 0. B. N. 
 
 B. Dlv. 177, 55 L. J. Q. B. 375. S. 258, 30 L. J. C. P. 365, by Erie C. J. and 
 
 (^) Sect. 13, which expressly provides Byles J., against W illes J. and Williams 
 
 for ante-nnptial liahillties, is rather J. The judgment of Willes J. seems to 
 
 against the existence o£ such a right. me conclusive. 
 
 (g) Johnson v. Fte, p. 50, supra (a dic- 
 tum wider than the decision). 
 
 Corporations. Corporations may sue for libel affecting their property, 
 if special damage is alleged and proved. Shoe & Leather Bank v. 
 Thompson, 18 Abb. Pr. 413; Aldrlch v. Press Printing Co., 9 Minn. 133; 
 Trenton Ins. Co. «. Perrine, 23 N. J. L. 402 ; Knickerbocker Ins. Co. w. 
 Bclesine, 11 Abb. Pr. (N. S.) 385; 42 How. Pr. 201; Buffalo Lubricating 
 Oil Co. V. Standard Oil Co., 42 Hun, 163; Nat. Eeserve Func( Life Assn. 
 V. Spectatur Co., 50 N. Y. Super. Ct. 460; Boogher v. Life Assn., 76 Mo. 
 321; Wilson v. Fitch, 41 Cal. 364. 
 
 Also, a corporation may be sued for a libel published by its authority: 
 In some cases it has been held, that the malice of the officials may be 
 imputed to the corporation. Maynard v. Fireman's Fund Ins. Co., 34 
 Cal. 48; Fogg V. Boston & L. E. Co., 148 Mass. 613; Aldrich u. Press 
 
CORPOKATIONS. 67 
 
 cannot be inflicted upon them. Neither can a corporation 
 be injured in respect of merely persoujJl reputation. It can 
 
 Printing Co., 9 Minn. 133; Johnson u. Bt. Louis Dispatch Co., 65 Mo. 539; 
 2 Mo. App. 566; Bacon v. Mich. Cent. B. Co., 55 Mich. 224;' 20 Am. &Eng. 
 B. Cas. 633; Hewitt v. Pioneer Press Co., 23 Minn. 178; Vinas v. Mer- 
 chants, etc., Ins. Co., 27 La. An. 367; Phila. E. Co. v. Quigley, 21 How. 
 202; Howe Machine Co. v. Sowder, 68 Ga. 64; Samuels v. Evening Mail 
 A<sn., 75 N. Y. 604; Kvening Journal Assn. v. McDermott, 44 N. J. L. 
 430; Cleghorn v. N. Y. Cent., etc., E. Co., 56 N. Y. 44; Merrills ■». Tariff, 
 etc., Co., 10 Conn. 384^ Goddard v. Grand Trunk E., 57 Me. 223; Mta'a. 
 Life Ins. Co. v. Paul, 37 IB. App. 439. 
 
 The old doctrine that corporations, having no souls, could not be liable 
 In tort, is now obsolete; and it is well settled that they are responsible 
 lor every wrong committed by their servants in the line of employment. , 
 Johnson v. St. Louis Dispatch Co., 2 Mo. App. 570; Peebles v Patapsco 
 Guano Co., 77 N. C..233; New York, etc., E. Co. v. Schuyler, 34 N. Y. 
 49; Nat. Bank v. Graham, 100 U. S. 699; Brokaw «. N. J. E., etc., Co., 32 
 N. J. L. 329; Weightman v. "Washington, 1 Black, 39; Philadelphia, W. & 
 
 B. E. Co. V. Quigley, 21 How. 202; Orlean o. Piatt, 99 U. S. 676; Salt 
 Lake City v. HoUister, 118 U. S. 256; Denver & E. G. E. Co. v. Harris, 7 
 Sup. Ct. Eep. 1286; Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. 
 604; Hood V. N. Y. & N. H. E. Co., 22 Conn. 502; Hussey v. King, 98 N. 
 
 C. 34; 3 S. E. Eep. 923; Craker v. Chicago & N. W. E. Co., 36 Wis. 657; 
 Miller v. Burlington & C. E., 8 Neb. 219; Goodspeed v. East Haddam 
 Bank, 22 Conn. 541; Marion v. C, E. I. & P. E. Co., 59 la. 428; Peck v. 
 Cooper, 112 111. 192; 54 Am. Eep. 231; Goodyear ». Phelps, 3 Blatchf. 91; 
 Biddle v. Proprietors, 7 Mass. 169. 
 
 Corporations have been held liable for particular torts in the following 
 cases : — 
 
 Assault and battery. Denver & E. G. E. a. Harris, 122 U. S. 597 ; Brokaw 
 V. Eailroad Co., 32 N. J. L. 328; Eamsden v. Boston & A. E. Co., 104 
 Mass. 117; Monument Bank v. Globe Works, 101 Mass. 57; Higgins v. 
 Watervliet T. E. E. Co. ■». Dalby, 19 111. 353. 
 
 Conspiracy. Eeed v.. Home Savings Bank, 130 Mass. 443; Buffalo 
 Lubricating Oil Co. v. Standard Oil Co., 17 Am. & Engi Corp. Cas, 61; 
 Jordan v. Aliabama, etc., E. Co., 74 Ala. 85; Morton v. Met. Life Ins. Co., 
 34 Hun, 366; affirmed, 130 N. Y. 645; Krulevitz v. Eastern E. Co., 140 
 Mass. 575; 26 Am. & Eng.E. E. Cas. 118; Western News Co. v. Dilmarth, 
 33 Kan. 510. 
 
 Contempt of Court. United States v. Memphis, etc., E. Co., 6 Fed. Eep. 
 237; People v. Albany, etc., E. Co., 12 Abb. Pr. 171; Mayor, etc., v. 
 Ferry Co., 64 N. Y. 624; First Cong. Ch. ». Muscatine, 2 Clarke (la.), 69. 
 
 Conversion. Flshkill Saving Inst. v. Bostwlck, 19 Hun, 354; Beach v. 
 Fulton Bank, 7 Cow. (N. Y.) 485. 
 
 Deceit. Peebles v. Patapsco Guano Co., 77 N. C 233; Cragie v. Had- 
 
68 PERSONS AFFECTED BY TORTS. 
 
 sue for a libel affecting property, but not for a libel pur- 
 porting to charge the corporation as a whole with corrup- 
 tion, for example. The individual officers or members of 
 the corporation whose action is reflected on are the only 
 proper plaintiffs in such a case (s). It would seem at first 
 sight, and it was long supposed, that a corporation also 
 cannot be liable for personal wrongs (t). But this is 
 really i)art of the larger question of the liability of prin- 
 cipals and employers for the conduct of persons employed 
 by them ; for a corporation can act and become liable only 
 
 (s) Mayor of Manchester v. Williams, '91, Co., 4 M. & G. 452. Bnt it was decided in 
 
 1 Q. B. 94, 60 L. J. Q. B. 23. the case just cited (1842) that trespass, 
 
 (*) The dlfflcnlty ielt in earlier times as earlier in Tariorough r. Bank of Mn- 
 
 was one purely of process; not that a gla/nd (1812),16 East 6, that trover, would 
 
 corporation was metaphysically incap- lie against a corporation aggregate. In 
 
 able ot doing wrong, but that it was not Massachusetts a corporation has been 
 
 physically amenable to capias or exigent: held liable for the publication of a libel: 
 
 22 Ass. 100, pi. 67, and other authorities Fogg v. Boston and Lowell B. Co. (1889), 
 
 collected by Serjeant Manning in the 148 Mass. 513. And see per Lord Bram- 
 
 notes to Mau/nd y. Monmouthshire Canal well, 11 App. Oa. at p. 254. 
 
 ley, 99 N. Y. 131; Zabriskie v. Cleveland, etc., R. Co., 23 How. 381; 
 Planters' Rice Mill Co. v. Olmstead, 78 Ga. 586; 3 S. E. Rep. 647; Moran 
 11. Miami County, 2 Black, 722; Kennedy v. McKay, 43 N. J. L. 288; 
 White V. Sawyer, 16 Gray, 686. 
 
 False imprisonment. Lynch v. Metropolitan Elevated R. Co., 90 N. Y. 
 77; 12 Am. & Eng. R. Cas. 119; 43 Am. Rep. 141; Standish «. Naragansett 
 S. S. Co., Ill Mass. 512; 15 Am. Rep. 66: Krulevitz v. Eastern R. Co., 
 140 Mass. 675; 28 Am. & Eng. R. Cas. 138; American Express Co. v. 
 Patterson, 73 Ind. 430; Owsley ». Montgomery, etc., R. R. Co., 37 Ala- 660; 
 Murdock v. Boston & A. R. R. Co., 133 Mass. 15 ; Frost v. Domestic, etc., 
 Co., 133 Mass. 563; Wheeler v. Boyce, 36 Kan. 350; 13 Pac. Rep. 609. 
 
 Malicious prosecvfion. Godspeed v. East Haddam Bank, 22 Conn. 530; 
 Denver, etc., R. Co. v. Harris, 122 U. S. 597; Hussey b. Norfolk So. R. Co., 
 98 N. C. 34; 2 Am. St. Rep. 312; Va,nce v. Erie r!. Co., 32 N. J. L. 334; 
 90 Am. Dec. 665; National Bank ». Graham, 100 U. S. 699; Iron Moun- 
 tain Bank v. Mercantile Bank, 40 Mo. App. 605; Williams v. Planter's 
 Ins. Co., 57 Miss. 759; Copley v. G. &. B. Sewing Machine Co., 2 Woods, 
 494; Ricord v. Central Pac. R. Co., 15 Nev. 167; Carter v. Howe Machine 
 Co., 51 Md. 290; Eenton v. Wilson S. M. Co., 9 Phila. Rep. 189; Reed v. 
 Home Savings Bank, 130 Mass. 443 ; Morton v. Metropolitan Ins. Co. , 
 34 Hun, 866; affirmed 103 N. Y. 645; Wheless v. Second Nat. Bank, 1 
 Baxt. 469; 25 Am. Rep. 783 ; Booger v. Life Assn., 75 Mo. 319 ; Woodward 
 V. St. Louis, etc., R. Co., 85 Mo. 142. See j3os8, p. 284. 
 
RESPONSIBILITY OF PUBLIC BODIES, ETC. 69 
 
 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. 
 
 KespoDsibility of public bodies for management of 
 worl£S, etc., under tbeir control. Where bodies of per- 
 sons, incorporated Or not, are intrusted with the manage- 
 
 Responsibility of public bodies for management of 'works, etc., under 
 their control. The American cases illustrating the application of this 
 doctrine are principally those against mnnicipal corporations. When, the 
 act of a mnnicipal corporation is not protected by its charter or the law, 
 it is responsible therefor, as an individual. Galesburg v. Higley, 61 111. 
 287; Butchers' Ice, etc.. Coal Co. v. City of Philadelphia, 156 Pa. St. 54; 
 27 At. Kep. 376; Drummond v. City of Eau Clair (Wis.), 55 N. W. Eep. 
 1028 ; AUentown v. Kramer, 73 Pa. St. 406 ; Schattner v. City of Kansas, 
 53 Mo. 162 ; Mayor of Savannah v. Waldner, 49 Ga. 316 ; Chicago v. loney, 
 60 111. 383 ; Chicago v. Dermody, 61 111. 431 ; Kobs v. Minneapolis, 22 Minn. 
 159; Nenert v. Boston, 120 Mass. 338; Eowell V. Williams, 29 la. 210; 
 Clarissy v. Metropolitan Fire Dept., 7 Abb. Pr. (N. S.) 352; Sheldon v. 
 Kalamazoo, 24 Mich. 383; Lansing v. Toolan, 27 Mich. 152; Mulcairns v. 
 Janesville, 67 Wis. 24 ; Indianapolis v. Emmelmann, 108 Ind. 530: 58 Am. 
 Eep. 65; Hart v. Bed Cedar, 63 Wis. 634; Lincoln v. Walker, 18 Neb. 244; 
 Lehn v. San Erancisco, 66 Cal. 76 ; North Vernon v. Voegler, 103 Ind. 
 314; Susquehanna Depot B. Simmons, 112 Pa. St. 384; 56 Am. Eep. 317; 
 Denver v. Ehodes, 9 Col. 554; Springfield v. Scheevers, 21 111. App. 203; 
 City of Birmingham v. McCreary, 84 Ala. 469; 4 So. Eep. 630; Hitchins 
 V. Frostburg, 68 Md. 100; 11 At. Rep. 826; City of Boulder v. Fowler, 11 
 Col. 396; 18 Pac. Rep. 337; Jefferson v. Chapman, 27 111. App. 43; 127 111. 
 438; 20 N. E. Rep. 33; Maguire v. Cartersville, 76 Ga. 84; Omaha v. 
 Jensen, 35 Neb. 68 ; 62 N. E. ^ep. 833 ; Savannah v. Donnelly, 71 Ga. 258 ; 
 Merse v. Worcester, 139 Mass. 389; Levy v. Salt Lake City, 3 Utah, 63; 
 Deane v. Randolph, 132 Mass. 475; Lemon v. Newton, 134 Mass. 476; 
 Broadwell v. Kansas, 75 Mo. 213; 42 Am. Rep. 395; Cumberland v. Wil- 
 son, 50 Md. 138; O'Brien v. St. Paul, 25 Minn. 331; Elgin v. Kiniball, 90 
 m. 356; Logansport v. Dick, 70 Ind. 65; 36 Am. Eep. 166; Jollet v. 
 Harwood, 86 111. 110 ; Murphy v. Lowell, 124 Mass. 564. 
 
 The following are some of the wrongs for which municipalities are 
 ordinarily liable : — 
 
 Defective streets and sidewalks. Winbigler v. City of Los Angelos, 45 
 eal. 36: Sterlings. Thomas, 60 111. 264; Eockford *. Hildebrand, 61 111. 
 
70 PERSONS AFFIiCTED BY TORTS. 
 
 ment and maintenance of works, or the performance of 
 other duties of a public nature, th,ey are in their corporate 
 or guasi-covpor-dte capacity responsible for the proper cou- 
 
 156; Craig ». Sedalia, 63 Mo. 417; McDonongh v. Virginia City, 6 Nev. 
 90; Alton v. Hope, 68 111. 167; Mayor of Rome v. Dodd, 58 Ga. 238; 
 Hutchinson v. Olympia, 2 Wasli. St. 314; Waldron v. Haverhill, 143 Mass. 
 582; Flanders v. Norwood, 141 Mass. 17; Saulsburyo. Ithica, 94 N. Y. 
 27; 46 Am. Rep. 122; Kellogg v. Janesville, 34 Minn. 132; Shippy v. Am. 
 Sable, 85 Mich. 280; 48 N. W. Rep. 584;. Higgles v. Glens Falls, 57 Hun, 
 594; 11 N. Y. S. Rep. 289; Flora v. Maney, 31 HI. App. 493; 26 N. E. Rep. 
 645; McDonald v. Ashland, 78 Wis. 251; 47 N. W. Rep. 434; Kinney v. 
 Tekamah, 30 Neb. 605; 46 N. W. Rep. 835; Denvep v. Donsmore, 7 Colo. 
 328; Bleazan v. Mason City, 58 la. 233; Hand v. Brookline, 126 Mass. 324; 
 Clark V. Epworth, 56 la. 462. 
 
 Lights: excavations. Seneca Falls v. Zalinski, 15 N. Y. Supreme Ct. 
 671; Randall v. Eastern R. Co., 106 Mass. 276; Groves v. Rochester, 39 
 Hun, 5; Gaskins v. Atlanta, 73 Ga. 746; Monongahela City v. Fischer, 111 
 Pa. St. 9; 66 Am. Rep. 317; Lyon v. Cambridge, 136 Mass. 419; Alexan- 
 der V. Big Rapids, 76 Mich. 282; 42 N. W. Rep. 1071; Dooley v. Sullivan, 
 112 Ind. 461; 14 N. E. Rep. 566; McAllister v. Albany, 18 Oreg. 426; 23 
 Pac. Rep. 846; McCoull v. Manchester, 86 Va. 579; 8 S. E. Rep. 379; 
 Birmingham ». Lewis, 92 Ala. 352; 9 So. Rep. 243; Powers v. Boston, 154 
 Mass. 60; 27 N. E. Rep. 995; South Omaha v. Cunningham, 31 Neb. 316; 
 47 N. W. Rep. 930; Hamford v. Kansas Cily, 103 Mo. 72; 15 S. W. Rep. 
 753; Keating v. Cincinnati, 38 Oliio St. 141; 43 Am. Kep. 421 ; Wilson v. 
 Wheeling, 19 W. Va. 323; 42 Am. Rep. 780. 
 
 Sewers. Wendell v. Mayor of Troy, 4 Abb. App. Dec, 663; Van Pelt 
 V. Davenport, 42 la. 308; Ashley v. Port Huron, 36 Mich. 296; Smith v. 
 Mayor of New York, 66 N. Y. 295; Spelman v. Portage, 4L Wis. 144; 
 Springfield v. LeClaire, 49 111. 476; Leavenworth v. Casey, McCahon, 124; 
 Smith V. Mayor, 6 Thomp. & C. 685; 4 Han, 637; Summer v. St. Paul, 23 
 Minn. 408; Forte Wayne v. Coombs^ 107 Ind. 75; 67 Am Rep. 82; Leeds v. 
 Richmond, 102 Ind. 372; Kranz v. Baltimore, 64 Md. 491; Rozell v. An- 
 derson, 91 Ind. 591; Rice v. Evansville, 108 Ind. 7; Terre Haute v. 
 Hudnut, 112 Ind. 542; Young v. Kansas City, 27 Mo. App. 101; Chope v. 
 Eureka, 78 Cal. 588; 21 Pac. Rep. 364; Kanakee v. Linden, 38 111. App. 
 657; Arn v. Kansas, 14 Fed. 236; Bloomington v. Murvin, 36 111. App. 647. 
 
 titreet grades and grading. Ilmer v. City of Springfield, 66 Mo. 119; 
 LUtk'fleld V. Norwich, 40 Conn. 406; Clemence v. Auburn, 66 N. Y. 334; 
 Lee V. City of Minneapolis, 22 Minn. 13; City of Detroit v. Beekman, 34 
 Mich. 125; Cheever v. Ladd, 13 Blatchf. 268; Tate v. Missouri R. Co., 64 
 Mo. 149; Russell v. Burlington, 30 la. 262; Dixon v. Baker, 65 111. 518; 
 Dore ii. Milwaukee, 42 Wis. 108; Shawneetown w. Mason, 82 111. 337; 
 Hendershott v. Ottumwa, 46 la. 658; 'Mayor of Nashville v. Nichol, 59 
 
ACTIO PERSONALIS, ETC. 71 
 
 duct of their undertakings no less than if they were private 
 owners: and this whether they derive any profit from the 
 undertaking or not (u). 
 
 The same principle has been applied to the management 
 of a public harbour by the executive government of a 
 British colony (as). The rule is subject, 6f course, to the 
 special statutory provisions as to liability and remedies 
 that may exist in any particular case (r/). 
 
 2. — U feet of a Party's Death. 
 
 Effect of death of either party. Actio personalis 
 moritur cum persona. We have next to consider the 
 effect produced on liability 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 rio-ht 
 of action for tort is put an end to by the death of either 
 party, even if an action has been commenced in his life- 
 time. This maxim " is one of some antiquity, but its 
 origin is obscure and post-classical " (2). Causes of action 
 on a contract are quite as much " personal " in the technical 
 sense, but, with the exception 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 statutory exceptions, to be 
 
 (u) Mersey Docks Tmsteesr. Gibbs(186i- (x) Reg v. Williams (appoal from New 
 
 6), L. B. 1 H. L. 93, 35 L. J. Ex. 225: see Zealand), 9 App. Ga. US. 
 
 the very full and careful opinion of the (y) L. R. 1 H. L. 107, 110. 
 
 judges delivered by Blackburn J.,L. E. 1 («) Bowen and Fry L.JJ., Finltty v. 
 
 H. L. pp. 102 sqg.. In which the pxevions Chirney (1888), 20 Q. B. Div. 494, 602, 57 
 
 authorities are reviewed. L. J. Q. B. 247: see this judgment on the 
 
 history of the maxim generally. 
 
 Tenn. 338; Ross v. City of Clinton, 46 la. 606; West Orange v. Field, 37 
 N. J. Eq. 600; 45 Am. Bep. 670; Noonan v. Albany, 79 N. Y. 470; 35 Am. 
 Hep. 640; Smith v. Alexandria, 33 Gratt. 208; 36 Am. Kep. 788; Gilllson 
 V. Charleston, 16 W. Va. 282; 37 Am. Rep. 763. 
 
72 PERSONS AFFECTED BY TORTS, 
 
 presently mentioned, the estate of the person wronged has 
 no claim, and that of the wrong-doer is not liable. Where 
 an action on a tort is referred to arbitration, and one of 
 the parties dies after the hearing but before the making of 
 the award, the cause of action is extinguished notwithstand- 
 ing a clause in the order of reference providing for delivery 
 of the award to the personal representatives of a party 
 dying before the award is made. Such a clause is insensible 
 with regard to a cause of action in tort; the agreement for 
 reference being directed merely to the mode of trial, and 
 not extending to alter the' rights of the parties (a). A 
 very similar rule existed in Koman 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 (6). 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 vindictive and jwasi-criminal 
 character of suits for civil injuries. A process which is 
 still felt to be a substitute for private war may seem in- 
 capable of being continued on behalf of or against a dead 
 man's estate, an impersonal abstraction represented no 
 doubt by one or more living persons, but by persons who 
 need not be of kin to the deceased. Some such feelinor 
 seems to be implied in the dictum, " If one doth a trespass 
 to me, and dieth, the action is dead also, because it should 
 be inconvenient to recover against one who was not party 
 to the wrong" (c). Indeed, the survival of a cause of 
 action was the exception in the earliest English law (d). 
 
 (a) Bowlcer v. Evans (1885), 15 Q. B. conjectured that7)er«onoZi« In the English 
 
 Div. 565, 51 L. J. Q. B. 421. maxim is nothing but a misreading of 
 
 (6) I. iv. 12, de perpetuis et temporali- poeaaUa. 
 
 bns actionlbns, 1. Another difference in (o) Newton 0. J. In Tear-Book I9 
 
 favour of the Roman law is that death Hen. VI. 6*, pi. 10 (a., d. lUO-11). 
 
 of a party after Utis contestatio did not (d) 20 Q. B. Div. 603. 
 abate the action In any case. It has been 
 
ACTIO PERSONALIS, ETC. 73 
 
 A barbarous rule. But when once the notion of ven- 
 geance has been put aside, and that of compensation sub- 
 stituted, the rule actio personalis moritur cum persona 
 seems to be without plausible ground. First, as to the 
 liability, it is impossible to see why a wrong-doer's estate 
 should ever be exempted from making satisfaction for his 
 wrongs. It is better that the residuary legatee should be 
 to some extent cut short than that the person wronged 
 should be deprived of redress. The legatee can in any 
 case take ctoly 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 intestate succession. Then as to the right: it is 
 supposed that personal injuries cause no damage to a man's 
 estate, and therefore after his death the wrong-doer has 
 nothing to account for. But this is oftentimes not so in 
 fact. And, in any case, why should the law, contrary to its 
 own principles and maxims in other departments, presume 
 it, in favour of the wrong-doer so to be? Here one may 
 almost say that omnia praesumuntur pro spoliatore. Per- 
 sonal wrongs, it is allowed, may " operate to the temporal 
 injury " of the personal estate, but without express allega- 
 tion the Court will not intend it (e), though in the case of 
 a wrong not strictly personal it is enough if such damage 
 appears by necessary implication (/). The burden should 
 rather lie on the wrong-doer to show that the estate has 
 not suffered appreciable damage. But it is needless to 
 pursue the argument of principle against a rule which has 
 been made at all tolerable for a civilized country only by a 
 series of exceptions {g) ; of which presently. 
 
 (e) Chamberlain v. Williamson, 2 M. & (fl') Cp. Bentham, TralMs de LSgisla- 
 
 S. at p. 4M. tlon, vol. il. pt. a, c. 10. 
 
 I/) Twjfcross y. Grant (1878), 4 0. P. 
 Dlv. <0, 48 L. J. O. P. 1. 
 
74 PERSONS AFFECTED BY TORTS. ^ 
 
 Extension of the rule in Osborn t. Gillett. The rule 
 has even been pushed to this extent, that the death of a 
 human being cannot be a cause of action in a civil Court 
 for aperson not claiming through or representing the per- 
 son killed, who in the case of an injury short of death 
 would have been entitled to sue. A master can sue for 
 injuries done to his servant by a wrongful act or neglect, 
 whereby the service of the servant is lost to the master. 
 But if the injury causes the servant's death, it is held that 
 the master's right to compensation is gone (A). We must 
 say it is so held, as the decision has not been overruled, or, 
 t^at I know of, judicially questioned. But the dissent of 
 Lord-Bramvvell is enough to throw doubt upon it. The 
 previous authorities are inconclusive, and the reasoning of 
 Lord Bramwell's (then Baron Bramwell's) judgment is, I 
 submit, unanswerable 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, according to the maxim, and his exec- 
 utors canuot sue for the benefit of his estate {i). But the 
 master's cause of action is altogether a difierent one. He 
 does not represent or claim through the servant ; he sues 
 in his own right, for anotheV injury, on another estimation 
 of damage ; the two actions are independent, and recovery 
 in the one action is no bar to recovery in the other. Noth- 
 ing 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 {Jc). It is 
 
 ' (7t) Osborn v. Gillett (1873), L. E. 8 Ex. introdnoefi.ijy the way, for the very pur- 
 
 88, 12 L. J. Ex. 63, diss. Bramwell B. pose of escaping the Iniquitous effect of 
 
 C«) Under Lord Campbell's Act (.infra) the maxim now in question, by getting a 
 
 they may have a right of suit for the cause of action In contract which could 
 
 bpneflt of certain persons, not the estate be maintained against executors) ; Lum- 
 
 as Buch. ley v. Gt/e (1853), 2 E. & B. 216, 22 L. J. Q. 
 
 (*) E. g. Collen v. WrigM, Ex. Oh. 8 B. 463, which we shall have to consider 
 
 E. & B. 647, 27 L. J. Q. B. 215 (agent's im- hereafter, 
 plied warranty of authority — a doctrine 
 
EXECUTORS. 75 
 
 alleged, indeed, that " the policy of the law refuses to recog- 
 nize the interest of one person in the death of another " (I) — 
 a reason, which would make life insurance and. leases for 
 lives illegal. Another and equally absurd reason sometimes 
 given for the rule is that the value of human life is too 
 great to be estimated in money ;" in other words, because 
 the compensation cannot be adequate there shall be no 
 compensation at all (w). It is true that the action by a 
 master for loss of service consequential on a wrong done 
 to his servant belongs to a somewhat archaic 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. Osbom v. Gillett stands in the book, and 
 we cannot actually say it is not law; but one would like to 
 see the point reconsidered by the Court of Appeal (n). 
 
 Exceptions : Statutes of Ed. III. giving executors 
 right of suit for trespasses. We now proceed to the 
 exceptions. The first amendment was made as long ago as 
 1330, by the statute 4 Ed. III. c. 7, of which the English 
 version runs thus: Item, whereas in times past executors 
 have not had actions for a trespass done to their testators, 
 as of the goods and chattels of the same testators carried 
 away in their life, and so such -trespasses have hitherto 
 remained unpunished ; it is enacted that the executors in 
 such cases shall have an action against the trespassers to 
 recover damages in like manner as they, whose executors 
 they be, should have had if they were in life. 
 
 The right was expressly extended to executors of execu- 
 
 (Z) L. K. 8 Ex. at p. 90, Arg. and D. 9. 1, si qnaflrapes.S. See Gnieber 
 
 (m) The Roman lawyers, however, on the Lex Aquilla, p. 17. 
 Beemtohaveheldallkevlew. "Llbernm (») Cp. Mr. Horaoo Smith's remarks 
 
 corpn.g nullam reciplt aestimationem : " on this case (Smith on Negligence, 2d 
 
 D. 9. 3, dehisqaieffaa.,l,§6; of. h. t. 7, ed. 256). 
 
76 PERSONS AFFECTED BY TORTS. 
 
 tors by 25 Ed. III. st. 5,c. 5, and was construed to extend 
 to administrators (o). It was held not to include injuries 
 to the person or to the testator's freehold, and it does not 
 include personal defamation, but it seems to extend to all 
 other wrongs where special damage to the personal estate 
 is shown (o). 
 
 Of Will. IV. as to injuries to property. Then by 3 and 
 4 Will. IV. c. 42 (a. d. 1833) actionable injuries to the 
 real estate of any person committed within six calendar 
 months before his death may be sued upon by his personal 
 representatives, for the benefit of his personal estate, within 
 one year after his death ; and a man's estate can be made 
 liable, through his personal representatives, for wrongs 
 done by him within the 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 office. Under this statute 
 the executor of a tenant for life has been held liable to 
 the remainderman for waste committed during the tenancy 
 
 No right of- action for damage to personal estate con- 
 seguential on personal injury. Nothing in these statutes 
 affects the case of a personal injury causing death, for 
 which according to the maxim there is no remedy at all. 
 It has been attempted to maintain that damage to the per- 
 sonal estate by reason of a personal injury, such as 
 expenses of medical attendance, and loss of income through 
 inability to work or attend to business, will bring the case 
 within the statute of Edward III. But it is held that 
 
 (o) See note to Pinchon's case, 9 Co. 397; Oakey v. DaUon (1887), 85 Oh. D. 700 
 
 Eep. 89 a, vol. v. p. 161 in ed. 1826. 66 L. J. Oh. 823. ' 
 
 (p) Twycrass y. Grant (1878), 4 C. P. (g) WoodhamtTi. Walleer (1880), 5Q.B. 
 
 IMv. 40, 45, 48 L. J. 0. P. 1 ; Haiohard v. DIv. 404, 49 L. J. Q. B. 609. 
 Mige (1887) , 18 Q. B. D. 771, 66 L. J. Q. B. 
 
LORD Campbell's act. 77 
 
 *' where the cause of action is in substance an injury to the 
 person," an action by personal representatives cannot be 
 admitted on this ground : the original wrong itself, not 
 only its consequences, must be an injury to property (/•). 
 
 Liord Campbell's act : peculiar rights created by it. 
 
 Railway accidents, towards the middle of the present 
 century, brought the hardship of the common law rule into 
 prominence. A man who was maimed or reduced to im- 
 becility 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 mined, but 
 there was no remedy. This state of tilings bi-ought about 
 the passing of Lord Campbell's Act (9 & 10 Vict. c. 93, 
 A. D. 1846), a statute extremely characteristic of English 
 legislation (s). Instead of abolishing the barbarous rule 
 which was the root of the mischief complained of, it created 
 a new and anomalous kind of right and remedy by way of 
 exception. It is entitled " Aii Act for compensating the 
 Families of Persons killed by Accidents: " it confers a 
 right of action on the personal representatives of a person 
 whose death has been caused by a wrongful act, neglect, 
 or default such that if death had not ensued that person 
 might have maintained an action ; but the right conferted 
 is not for the benefit of the personal estate, but " for the 
 benefit of the wife, husband, parent, and child (t) of the 
 
 (r) Pulling V. O. E. B. Co. (,1BS!), 9 Q. {*)" Parent " Includes father and 
 
 B. D. 110, 51 L. J. Q. B. 453; cp, Leggoit mother, grandfather and grandmother, 
 
 V. G. N. B. Co. (1S7B) , 1 Q. B. D. 599, 45 L. stepfather and stepmother. " Child " 
 
 J. Q. B. 557; the earlier case of Brad- includes son and daughter, grandson 
 
 shaw V. Lancashire and Yorkshire B. Co. and granddaughter, stepson and step- 
 
 (1875), L.E. IOC. P. 189,441,. J. C. P. 148, daughter: sect. 5. It does not Include 
 
 is doubted, but distinguished as being on illegitimate children : Dickinson y. N. M. 
 
 an action of contract. B. Co. (1863), 2 H. & C. 735, 33 L. J. Ex. 
 
 (s) It appears to have been suggested 91. There is no reason to doubt that it 
 
 by the law of Scotland, which already includes an unborn child. See The 
 
 gave a remedy: see Campbell on Negll- George and Bichard (1871), L. R. 3 A. & 
 
 genoe, 20 (^ndedlt.); and Blake v. Mid- E. 468, which, however, is not of Judicial 
 
 land B. Co. (1853), 18 Q. B. 93, 21 L. J. Q. authority on this point, for a few months 
 
 B. 233 (in argument for plaintiff). later (.Smith v. Brovm (1871), L. R. 6 Q. B. 
 
78 PERSONS AFFECTED BY TOKTS. 
 
 person whose death shall have been si) caused," Damages 
 have to be assessed according to the injury resulting to the 
 parties for whose benefit the action is brought, and appor- 
 tioned between them by the jury (m). The nominal plaintifP 
 must deliver to the defendant particulars of those parties 
 and of the nature of the claim made on their behalf. 
 
 By an amending Act of 1864, 27 & 28 Vict. c. 95, if 
 there is no personal representative of the person whose 
 death has been caused, or if no action is brought by per- 
 sonal representatives within six months, all or any of the 
 persons for whose benefit the right of action is given by 
 Lord Campbell's Act may sue in their own names (a;). 
 
 Gonstructlou of Liord Campbell's act. The principal 
 Act is inaccurately entitled to begin with (for to a lay 
 reader "accidents" might seem to include inevitable 
 accidents, and again, " accident " does not include wilful 
 wrongs, to which the Act does apply) ; nor is this promise 
 much bettered by the performance of its enacting part. 
 It is certain that the right of action, or at any rate 
 the right to coinpeusation, given by the statute is not the 
 same which the person killed would have had if he had 
 lived to sue for his injuries. It is no answer to a claim 
 un*der Lord Campbell's Act to show that the deceased 
 would not himself have sustained pecuniary loss. "The 
 statute . . . gives to the personal representative a cause 
 of action beyond that which the deceased would have had 
 if he had survived, and based on a different principle "(y). 
 
 729), the Court of Queen's Bench held In will apportion the fund, in proceedings 
 
 prohibition that the Court of Admiralty taken for that purpose in the Chancery 
 
 had no jurisdiction to entertain claims Division, in like manner ae a jury jould 
 
 under Lord Camphell's Act; and after have done: Bulmer v. Bulmer (1883), 25 
 
 some'doubt this opinion has been con- Ch. n. 409. 
 
 firmed by the House of Lords : Seward v. (k) Also, by sect. 2, " money paid Into 
 
 2V!ercraCniz(18S4),10App.Ca.B9,OTer- Court may be paid in one sum, without 
 
 ruling TAe Franconia (1877), 2 P. D. 163. regard to its division into shares " 
 
 (m) Where a claim of this kind is (marginal note), 
 
 satisfied by payment to executors with- (y) Erie C. J., Pym v. G. N. R. Co. 
 
 out an action being brought, the Court (1863), Ex. Ch. 4B. & S. at p. 406. 
 
LORD Campbell's act. 79 
 
 But " the statute does not in terms say on what principle 
 the action it gives is to be maintainable, nor on what prin- 
 ciple the damages are to be assessed ; and the only way 
 to ascertain what it does, is to show what it does not 
 mean" (z). It has been decided that some appreciable 
 pecuniary loss to the beneficiaries (so we may conveniently 
 call the parties for whose benefit the right is created) 
 must be shown; they cannot maintain an action for 
 nominal damages (a) ; nor recover what is called solatium 
 in respect of the bodily hurt and suffering of the deceased, 
 or th«ir own affliction (6); they must show " a reason- 
 able expectation of pecuniary benefit, as of right or other- 
 wise," had the deceased remained alive. But a legal right 
 to receive benefit from him need not be shown (c). Thus, 
 the fact that a grown-up son has been in the constant 
 , habit of making presents of money and other things to his 
 parents, or even has occasionally helped them in bad 
 times (c?), is-a ground of expectation to be taken into ac- 
 count in assessing the loss sustained. Funeral and mourn- 
 ing 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 (e). 
 
 Interests of survivors distinct. The interests con- 
 ferred by the Act on the several beneficiaries are distinct. 
 It is no answer to a claim on 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 (/i. 
 
 {«; PoUook C. B. In Franklin v. S. E. N. S. 296, 27 L. J. C. P. 227, closely fol- 
 
 B. Co. (1858), 3 H. & N. at p. 213. lowing FrankUn v. 5. E. B. Co. 
 
 (o) Duckworth v. Johnson (1859), i H. (/) Pym v. G. JT. M. Co. (1S63), 4 B. & 
 
 & N. 653 ; 29 L. J. Ex. 25. S. 396, 32 L. J. Q. B. 377. The deceased 
 
 (ft) Blake T. Midland B. Co. (1852), 18 had settled real estate on his eldest son, 
 
 Q. B. 93, 21 L. J. Q. B. 233. In Scotland to whom other estates also passed as 
 
 it is otherwise: 1 Maoq. 752, n. heir-at-law. As to the measure of dam- 
 
 (c) FranUiny. S. E. B.^Co. (1858), 8 H. ages where the deceased has insured his 
 &N. 211. own life for the direct benefit of the 
 
 (d) Befherington v. N. E. B. Co., 9 Q. plaintiff, see Grand Trunk B. of Canada 
 B. D. 160, 61 L. J. Q B. 495. V. Jennings (1888), 13 :^E^a. 800, 58 L. J. 
 
 (e) DaUon T. S. E. B. Co. (1858), 4 0. B. P. 0. 1. 
 
80 PERSONS AFFECTED BY TORTS. 
 
 The statutory cause of action is in substitution, not 
 cumulative. It is said that the Act does Dot transfer to 
 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" {g). Never- 
 theless the cause of action is so far the same that if a per- 
 son who ultimately dies of injuries caused by wrongful act 
 or neglect has accepted satisfaction for them in his life-time, 
 an action under Lord Campbell's Act is not afterward's 
 maintainable (h). For the injury sued on must, in the 
 words of the Act, be " such as would, if death had not 
 ensued, have entitled the party injured to maintain an ac- 
 tion, 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 recov- 
 ered or accepted compensation, he could not do. 
 
 Scottish and American laws. In Scotland, as we 
 have incidentally seen, the surviving kindred are en- 
 titled by the common law to compensation iu these cases, 
 not only to the extent of actual damage, but by way 
 of solatium. In the United States there exist almost 
 everywhere statutes generally similar to Lord Camp- 
 bell's Act; but they differ considerably in details from 
 that Act and from one another (i). The tendency seems 
 to be to confer on the survivors, both in legislation and in 
 judicial construction, larger rights than in England. 
 
 ig) 18 Q. B. at p. 110. gence, as. 263 sgq. In Arkansas the doo- 
 
 (ft) Bead v. G. E It. Co. (1868), L. E. 3 trine ol actio personalis, &c., appears to 
 
 Q. B. 555, 37 L. J. Q. B. 278. have been wholly abrogated by statute : 
 
 (i) Cooley on Torts (Chicago, 1S80), ib. s. 895. 
 
 262 sqg.; Shearman & Kedfleld on Negli- 
 
 Effect of death of either party. In the absence of special statutes 
 the decisions in America follow the common law rule, that in a civil 
 court, the death of a human being cannot be complained of as an injury. 
 Carey v. Berkshire R. Co., 1 Cush. 475; Kearney v. Boston & W. R. Corp. 
 9 Cush. 109; Conn. Mut. Life Ins. Co. v. New York & N. H. R. Co. 25 
 
FOLLOWING PUOPERTY. 81 
 
 Bight to follow property wrongfully taken or converted 
 as against wrong-doer's estate. In one class of cases there 
 is a right to recover against a wrong-doer's estate, notwith- 
 
 Conn. 265; Whitford v. Panama E. Co., 25 N. Y. 465; Kramer v. Market 
 Street R. Co., 25 Cal. 434 ; Hyatt v. Adams, 1 6 Mich. ; Robert v. Lisenbee, 
 86 N. C. 136; 41 Am. Rep. 460; Peoria, etc., Ins. Co. v. Frost, 37 111. 333; 
 Hugh V. New Orleans, etc., R. Co., 6 La. Am. 495; Insurance Co. v. Brame, 
 95 V. S. 754; Woodward v. Michigan, etc., R. Co., 10 Ohio St. 121; field- 
 ing©. Black Hills & Ft. P. R. Co. (S. D.), 53 N. W. Rep. 750; Illinois 
 Cent. R. Co. v. Pendergrass, 69 Miss. 425; 12 So. Rep. 954; Wyatt v. Wil- 
 liams, 43 N. H. 102; Scheffler v. Minneapolis, etc., Ry., 32 Minn. 125; 
 Sherman v. Johnson, 58 Vt. 40; Pitts v. Hale, 3 Mass. 321; Stetson ». 
 Kempton, 13 Mass. 272; Moe v. Smiley^ 126 Pa. St. 136; 17 At. Rep. 228; 
 23 W. N. C. 461 ; Browner v. Sterdevant, 9 Ga. 69 ; Newsom v. Jackson, 
 29 Ga. 61; Schreiber v. Sharpless, 17 Fed. Rep, 589; Coker v. Crozier, 5 
 Ala. 369; McClnre v. Miller, 4 Hawks. 133. 
 
 Conira. Ford v. Monroe, 20 Wend. 210; Cross v. Guthery, 2 Root, 90; 
 Green v. Hcdson River R. Co,, 2 Keyes, 294. 
 
 This rale applies to every cause of action not satisfied by final judg- 
 ment; thus it has been held, that if the plaintiff die after an appeal by 
 the defendant from an award in favor of the plaintiff, for an assault and 
 battery, his representatives cannot be substituted and the award is at an 
 end. Miller v. Umbehower, 10 Serg. & R. 31. See Gibbs v. Belcher, 80 
 Tex. 79; Long v. Hitchcock, 3 Ohio, 274; Faith v. Carpenter, 33 Ga. 79; 
 Harrison v. Mosley, 31 Tex. 608; Kelsey v. Jewett, 34 Hun, 11 ; Kimbrough 
 V. Mitchell, 1 Head, 539; Baltimore R. Co. v. Richie, 31 Md. 191; In re 
 First Nat. Bank, 49 Fed. Rep. 120. 
 
 In most or all the United States, statutes containing provisions sub- 
 stantially similar to those of Lord Campbell's Act are in force. When 
 the right of action is thus given it is ordinarily limited to those cases 
 wherein the deceased person could have maintained a suit for the Injury 
 had he survived. The decisions construing these statutes are numerous 
 and often peculiar to certain provisions, and it is not deemed consistent 
 or practicable to undertake to cite them here. It Is, however, important 
 to note that the term " personal representative " employed in these 
 statutes, means the executor or administrator of the deceased, and not 
 his next of kin., Chicago v. Mayor, 18 111. 349; Haley v. Mobile & O. K. 
 Co., 7 Baxt. 239 ; 8 Am. & Bug. R. Cas. 344; Kramer o. Market St. R. 
 Co., 24 Cal. 434; Boutiller v. Milwaukee, 8 Minn. 97; Whiton v. Chicago, 
 etc., R. Co., 21 Wis. 305; Needhamc. Grand Tr. R. Co., 38 Vt.294; Wood- 
 ward V. Chicago, etc.R. Co., 23 Wis. 400; Schmidt v. Degan, 69 Wis. 
 300; 34 N. W. Rep. 83. The constitutionality of such a statute was sus- 
 tained in Georgia R. Co. v. Pittman, 73 Ga. 325; 26 Am. & Eng. R. Cas. 
 474. See Carroll v. Mo. Pac. R. Co., 26 Am. & Brig. R. Cas. 268. 
 
 Under these statutes the measure of damages for the wrongful ];illlng 
 
 6 
 
82 PEESONS AFFECTED BY TORTS. 
 
 Standing the maxim of aciio personalis, yet not so as to 
 constitute a formal exception. When it comes to the point 
 of direct conflict, the maxim has to prevail. 
 
 As Lord Mansfield stated the rule, " where property is 
 acquired which benefits the testator, there an action for the 
 value of the property shall survive against the executor" 
 (&). Or, as Bowen L. J. has more fully expressed it, the 
 cases under this head are those " in which property, or the 
 proceeds or value of property, belonging to another, have 
 been appropriated by the deceased person and added to his 
 own estate or moneys." In such cases, inasmuch as the 
 action brought by the true owner, in whatever form, is in 
 
 (ft) Harribly v. Trott, 1 Cowp. 375. 
 
 of a person is the estimate of compensation for the pecuniary loss to 
 the survivors. Demarest v. Little, 47 N. J. L. 28; Chicago, etc., E. Co. 
 V. Morris, 26 111. 400; Kessler w. Smith, 66 N. C. 154; Atlanta, etc., B. Co. 
 V. Ayres, 53 Ga. 12; Atchison v. Twine, 9 Kan. 350; THly v. N. Y., etc. R. 
 Co., 24 N. Y. 471 ; Stoker v. St. Louis, etc., E. Co., 91 Mo. 511 ; Annas v. 
 Milwaukee, etc., E. Co., 67 Wis. 46; Railroad Co. v. Barron, 5 Wall. 90; 
 Chicago, etc., E. Co. v. Swett, 45 111. 197; Paulmier «. Erie E. Co. 34 
 N. J. L. 151; Rockford, etc., E. Co. i>. Delaney, 82 111. 198; Chicago v. 
 Hesing, 83 111. 205; Houston, etc., R. Co. v. Cowser, 57 Tex. 293. 
 
 In several of the States it is held, that the action can only be brought 
 In those. States where the statute gives the right and where the killing 
 occurred. Woodward v. Mich., etc., E. Co., 10 Ohio St. 121 ; Illinois Cen- 
 tral, etc., Co. V. Cragin, 71 111. 177; Limeklller v. Hannibal, etc., Co., 33 
 Kan. 83; Chicago, etc., Co. v. Schroder, 18 111. App. 328; Needham «. 
 Grand Frank, etc., E. Co., 38 Vt. 294; Davis o. New York, etc., Co., 143 
 Mass. 301; Vawter v. Miss., etc., Co., 84 Mo. 679. 
 
 But, ordinarily, a foreign administrator may maintain the action when 
 the laws are substantially the same, and the action is not opposed to the 
 general policy of the State in which the suit is brought. Leonard v. Co- 
 lumbia S. N. Co., 84 N. Y. 48; Kansas Pao. R. Co. ». Cutter, 16 Kan 568; 
 Taylor's Admr. v. Penna. Co., 7 Am. & Eng. Cas. 23; South Carolina E.~ 
 Co.». Nix, 68 Ga. 672; Wabash, etc., Co. v. Shacketfc, 105 lU. 364; 12 Am. 
 &Eng. E. Cas. 166; JefEersonville, etc., E. Co. », Hendricks, 41 Ind 49; 
 Illinois Cent., etc., Co. v. Crudup, 63 Miss. 291; Burns v. Grand Rapids, 
 etc., Co., 113 Ind. 169; 15 N. E. Rep. 230; Dennick ». Eailroad Co., 103 
 U. S. 11; Knight v. West Jersey E. P. Co., 108 Pa. St. 250; Luke v. Cal- 
 houn Co., 52 Ala. 115; Missouri Pac. Ey, Co. v. Lewis, 28 Neb. 848; 40 
 N. W. Rep. 401. 
 
RECOVERr OF SPECIFIC PROPERTY. 83 
 
 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 
 iissets " (by suing the personal representatives) "and 
 recaptured by the rightful owner there."" But this rule is 
 limited to the recovery of specific acquisitions or their 
 value. > It does not include the recovery of damages, as 
 such, for a wrong, though the wrong may have increased 
 the wrong-doer's estate in the sense of being useful to him 
 or saving him expense (Z). 
 
 The rule limited to recovery of specific property or its 
 value: Phillips v. Homfray. 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 carried out, nor for the injury to the mines or 
 the surface of the ground consequent on A. 's, workings (A). 
 
 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 (i), A. dies. B. has no cause 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 (k). 
 
 The like law holds of a director of a company who has 
 committed himself to false representations in the pro- 
 spectus, whereby persons have been induced to take shares, 
 
 (0 The technical rnle was that exeon- thorities are fully examined in the jndK- 
 
 tors coald not be sued in respect of an ment of Bowen and Cotton L.JJ. As to 
 
 act of their testator In his lifetime in allowing interest in such cases, see 
 
 any form of action in which the plea was PMJtipa v. Bomfray, '92, 1 Ch. 485, 0. A. 
 not guilty : HamUy v. Trott, 1 Cowp. 375. (i) 3 & 4 Will. IV. o. 42, p. 60, above.' 
 
 (A) Phillips V. Bomfray (1883), 24 Ch. (*) Kirkv. Todd (1882),21 Ch. Dlv.,484, 
 
 Dlv. iyj, i54, 53 L. J. Ch. 833. The au- 52 I.. J. Ch. 224. 
 
84 PERSONS AFFECTED BY TORTS. 
 
 and have acquired a right of suit against the issuers. If 
 he dies before or pending such a suit, his estate is not 
 liable (I). In short, this right against the executors or 
 administrators of a wrong-doer can be maintained only if 
 there is " some beneficial property or value capable of 
 being measured, followed, and recovered " (m). 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 Torts of Agents and Servants. 
 
 Command of principal does not excuse agent's wrong. 
 
 Whoever commits a wrong is liable for it himself. It is 
 no excuse that he was acting, as an agent or servant, on 
 
 (0 Peck V. Gurney (1873), L. E. 6 H. L. (m) 24 Ch. D. at p. 463. 
 
 at p. 392. 
 
 Command of principal does not excuse agent's 'wrong. If a ser- 
 vant commit a tort out of Ills course of employment, he alone is 
 responsible to the person injured thereby. If he commit a tort while 
 acting within the course of his employment, he and his master are 
 each liable for the resulting damages. Mitchell v. Harmony, 14 How. 
 115; Brown v. Lent, 20. Vt. 529; Wright v. Wilcox, 19 Wend. 343; 
 Eichardson v. Kimball, 28 Me. 463; Suydam v. Moore, 8 Barb. 468; 
 Althorf V. Wolfe, 22 N. Y. 355 ; Phelps v. Waite, 30 N. Y. 78 ; Hewitt v. 
 Swift, 3 Allen, 420; Grand Trunk R. Co. ». Latham, 63 Me. 177; McClan- 
 athan». Oswego, etc., E. Oo,, 1 Thomp. & C. 501; Mitchell »'. Harmony, 
 13 How.llo; Harriman v. Stowe, 57 Mo. 93; Hawksworth ». Thompson, 
 98 Mass. 77; Johnson v. Barber, 5 Gilm. 425; Bennett u. Joes, 30 Conn. 
 329; Wright v. Crompton, 53 Ind. 337; Evansville, etc., R. Co. ». Baum, 
 36 Ind. 70; Peck v. Cooper, 112 111. 192; Reynolds v. Hanrahan, 100 
 Mass. 313 ; The State v. Walker, 16 Me. 241 ; Porter v. Thomas, 23 Ga. 
 467; SagersB. Nuckolls (Colo. App.), 32 Pac. Eep. 187. 
 
 So, one servant may recover damages from a co-servant for injuries 
 suffered through the latter's negligence. Griffiths v. Wolfram, 22 Minn. 
 185; Osborne ■». Morgan, 130 Mass. 102; overruling Albro v. Jaquitb, 4 
 Gray, 99; Hinds v. Harbon, 58 Ind. 21; Hinds v. Duenacker, 66 Ind. 
 547. 
 
LIABILITY FOB OTHEEs' ACTS. 85 
 
 behalf and for the benefit of another (n). But that other 
 may well be also liable ; and in many cases a man is held 
 answerable for wrongs not committed by himself. The 
 rules of general application in this kind are those eoneern- 
 ing the liability of a principal for his agent, and of a 
 master for his servant. Under certain conditions respon- 
 sibility goes farther, and a man may have to answer for 
 wrongs whichj as regards the immediate cause of the 
 damage, are not those of either Ms agents or his servants. 
 
 Cases of absolute positiTe duty dlstinguisbed: Thus 
 we have oases where a man is subject to a positive duty, 
 and is held liable for failure to perform it. Here, the 
 absolute character of the duty being once established, the 
 question is not by whose hand an unsuccessful attempt was 
 made, whether that of the party himself, -of his servant, 
 or of an "independent contractor" (o), but whether the 
 duty has been ad«quately performed or not. If it has, 
 there is nothing more to be considered, and liability, if any, 
 must be sought in some other quarter (p). If not, the 
 nott-performance in itself, not the causes or conditions of 
 non-performance; is the ground of li-ability. Special duties 
 created by statute, aa conditions attached to the grant of 
 exceptional rights or otherwise, afford the chi«f examples 
 of this kind. Here the liability attaches, irrespective of 
 any question of agency or personal negligence, if and 
 when the conditions imposed by the legislature are not 
 satisfied (7). 
 
 (n) Cullen v. Thomson's Trustees and (o) The diBtlnction will be explained 
 
 Kerr, i Maoq. 424, 432. " For the con- below. 
 
 tract of agency or service cannot im- {p) See Hycms y. Webster (186S), Ex 
 
 pose any obligation on the agent or Ch. L. R. 4 Q. B. 13S, 38L. J. Q. B. 21. 
 servant to commit or assist in the com- (g) See Gray v. Pullen (1864),Ex. Ch. 5 
 
 mltting of fraud," or any other wrong. B. & S. 970, 34 L. J. Q. B. 265; 
 
 Cases of absolute positive duty: warranty. These cases are dis- 
 cussed under separate beadiags on other pages. 
 
 Upon duties Imposed by statute, see ante, p. 24. Upon the general 
 subject, see post, chap. XII. 
 
86 PERSONS AFFECTED BY TORTS. 
 
 Also duties in nature of warranty. There occur like- 
 wise, though as an exception, duties of this kind imposed 
 by the common law. Such are the duties of common car- 
 riers, of owners of dangerous animal^ or other things in- 
 volving, by their nature or position, special risk of harm 
 to their neighbours; and sucii, to a limited ext(^nt, is the 
 duty of occupiers of fixed property to have it in reason- 
 ably safe condition and repair, so far as that end can be 
 assured by the due care on the part not only of themselves 
 and their servants, but of all concerned. 
 
 The degrees of responsibility may be thus arranged, 
 beginning with the mildest : 
 
 (i) For oneself and specifically authorized iigents (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, etc.). 
 
 (iv) For everything but vis major (exceptional: some 
 cases of special risk, and anomalously, cexlain 
 public occupations). 
 
 Modes of liability for wrongful acts, etc., of others. 
 
 Apart from the cases of exceptional duty where the respon- 
 sibility is in the nature of insurance or warranty, a man 
 may be liable for another's wrong — 
 
 (1) As having authorized or ratified that particuliir 
 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 specifically authorized. 
 
 The former head presents little or no diflaculty. The 
 latter includes considerable difficulties of principle, and is 
 often complicated with.troublesome questions of fact. 
 
MASTER S RESPONSIBILITY. 87 
 
 Command and ratification. 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 maybe not only he 
 who does the act, but who commands or procures it to be 
 done . . . who aids or assists in it . . . or who 
 assents afterwards" (r). This is not the less so because 
 the person employed to do an unlawful act may be em- 
 ployed as an " independent contractor," so that, supposing 
 it lawful, the employer would not be liable for his negli- 
 gence about doing it. A gas company employed a firm of 
 contractors to break open a public street, having therefor 
 no lawful authority or excuse; the thing contracted to be 
 
 (r) De Grey C. J; In Barker v. Braham (1773), 2 W. Bl. 866, Blgelow, L. C. 235. 
 
 Command and ratification. The doctrine of the text is sustained by 
 all well cousidered authorities. Congreve v. Morgan, 5 Duer, 495; Clark 
 V. Fry, 8 Ohio St. 358; Elder v. Bemis, 2 Mete. 599; Armstrongs. Cooley, 
 10 III. 509; McCullough v. Shoheman, 105 Pa. St. 169; 51 Am. Eep. 194; 
 Schmidt v. Adams, 18 Mo. App. 432; Craker v. Chicago &/N. W. By. Co., 
 36 Wis. 669; McClung v. Dearborne, 134 Pa. St. 396; 19 At. Kep. 698; 26 
 W. N. C. 42; Tuclser v. Jeuis, 75 Me. 188; Corner v. Maeljintosh, 48 Md. 
 347; Bjne ^. ^Hatcher, 75 Ga. 289; Nashville & C. E. Co. v. Starnes, 9 
 Heisk. 52; Harden u. Felch, 109 Mass. 154; Williams v. Palace Car Co., 
 40 La. An. 87; 33 Am. & Eng. E. Cas. 414; Dempsey u. Chambers, 154 
 Mass. 330; 28 N. E. Eep. 279; Harrison v. Mitchell, 13 La. An. 260; Baas 
 ». Chicago & N. W. Ey. Co., 42 Wis. 654; Milwaukee & M. E. E. Co. v. 
 Finney, 10 Wis. 388; Allred v. Bray, 41 Mo. 484; Brainard v. Dunning, 30 
 N. Y. 211; Hewitt v. Swift, 3 Allen, 420; Knight v. Nelson, 117 Mass. 
 457. 
 
 And so if the. wrongful act be done by an " independent contractor." 
 Ware o. St. Paul Water Co., 2 Abb. U. S. 261 ; Leber v. Minneapolis & N. 
 W. E. Co., 29 Minn. 256; Ketcham v. Cohn, 22 N. Y. S. Eep. 181; Hawver 
 ■0. Whalen, 49 Ohio St. 69; 29 N. E. Eep. 1049; Engel «. Eureka Club, 59 
 Hud, 693; 14 N. Y. S. Eep. 184. 
 
 Subsequent approval of a tort will not affect a third person, unless the 
 act were originally done in his name or for his use. Grand v. Van Vleck, 
 69 111. 481; Coomes v. Houghton, 102 Mass. 211; New England Dredging 
 Co, V, Eockport Granite Co., 149 Mass, 381. See Dempsey u. Chambers,^ 
 154 Mass. 330; 28 N. E. Rep. 279, reviewing the cases. 
 
88 PERSONS AFFECTED BY TOETS. 
 
 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 contractors (s). A point of importance to be 
 noted in this connexion is that only such acts bind a princi- 
 pal by subsequent ratification as were done at the time on 
 the principal's behalf. What is done by the immediate 
 actor on his own account cannot be effectually 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 " (t). 
 
 Master and servant. The more general rule governing 
 the other and more difficult branch of the subject was 
 expressed by Willes J. in a judgment which may now be 
 regarded as a classical authority, *' The master is answer- 
 able for every such wrong 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 " (m). 
 
 («) Ellis V. Sheffield Gas Consumers Co. Bank (1867), Ex. Ch. L. E. 2 Ex. 259, 265, 
 
 (1S53),2 E. &E. 787,23L. J. Q. B. 42. 36 L. J. Ex. U7. The point of the decis- 
 
 (t) Wilson T. Tumman (1843), 6 M. & G. Ion is that fraud is herein on the same 
 
 23S; and Serjeant Manning's note, ih. footing as other wrongs: of which in 
 
 239. due coarse. 
 
 (tt) Barwick v. English Joint Stock 
 
 Master and servant. The general statement in the text is that also of 
 the law in the United States. 
 
 It is accepted that the master's liability for the torts of the servant 
 springs out of the relation itself, and does not depend upon the stipula- 
 tions of their contract. Within the scope of his authority, the servant 
 may be said to be the medium through which the master acts; it follows, 
 as a general rule, that for the tortious acts of the servant the master Is 
 liable. Ward v. Young, 42 Ark. 542 ; Northern Pac, R. Co. v. Herbert, 
 116 U. S. 624; 24 Am, & Eng. E. Cas. 407; The Eleanor, 2 Wheat. 345; 
 Robinson v. Webb, 11 Bush; 465; Sawyer v. Martins, 25 Ill,_Ap. 521. 
 Th9 cases subsequently cited In this chapter sustain and show the 
 special application of these general principles. 
 
MASTER AKD SERVANT. 89 
 
 Beason of the master's liability. No reason for the 
 rule, at any rate no satisfying one, is commonly given in 
 our books. Its importance belongs altogether to the modern 
 law, and it does not seem to be illustrated by any early 
 authority (a;). Blackstone (1. 417) is short in his state- 
 ment, and has no other reason to give than the fiction of 
 an " implied command." It is currently said, Respondeat 
 superior; which is a dogmatic statement, not an explana- 
 tion. 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 specifically 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 showing that 
 the servant for whose wrong he is sued was chosen by hira 
 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 it " 
 (y). This is, indeed,, somewhat too widely expressed, for 
 it does not in terms limit the responsibility to cases when' 
 at least negligence is pi'oyed. But no reader is likely to 
 suppose that, as a general rule, either the servant or the 
 
 (,x) Joseph Brown Q. C. in evidence writer on the subject, well says: "La 
 before Select Committee on Employers' responsabllit^ du fait d'antrni n'est pas 
 Liability, 1876, p. 38; Brett L J., 1877, p. une fiction invent^e par la lol positive- 
 ill. O'est une exigence de I'ordre social ; " 
 
 iy) Farwell v. Boston and Worcester De la Eesponsabilit* et de la Garantie, 
 
 Railroad Corporation (1842), 4 Met. 49, p. 124. Paley (Uor. Phil. bk. 3, c. 11) 
 
 and Bigelow L. C. 688. The judgment is found It difficult to refer the rule to any 
 
 also reprinted in 3 Kacq. 316. So, too, principle of natural justice. 
 M. Salncteiette, a recent Contmcnt.'il 
 
90 PERSONS AFFECTED BY TORTS. 
 
 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 sa:^ety 
 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 " (z). 
 
 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 talten, though artifi- 
 cally 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 " (a). 
 
 Questions to be considered herein. The rule, then 
 (on whatever reason founded), being that a master is liable 
 for the acts, neglects, and defaults of his servants in the 
 course of the service, we have to define further 
 
 1. Who is a servant. ' 
 
 2. What a6ts are deemed to be in the course of service. 
 
 3. How the rule is affected when the pex-son injured is 
 himself a servant of the same master. 
 
 "Who is a servant: responsibility goes with order and 
 control. 1. As to the first point, it is quite possible to do 
 
 (a) Barton's HUl CoalCo.y.Beid (1858), (o) TubervilUy. Stampe (end of 17th 
 
 S Macq. 266, 283. century), 1 Ld. Raym. 264. 
 
 Who is a servant : Besponsltilllty. " A servant is one who is en- 
 gaged not merely in doing work or services for another, but who is in 
 
MASTER AND SERVANT. 91 
 
 work for a man, in the popular sense, and even to be bis 
 agent for some purposes, without being his servant. The 
 relation of muster and servant exists only between persons 
 
 his sei-vice, usually upon or about the premises or property of his em- 
 ployer, and subject to his direction and control therein, and -who is, 
 generally, liable to be dismissed." Heygood v. The State, 59 Ala. 51. 
 
 It is a uniform rule that, where one has the right to direct or con- 
 trol the action of another, the relation of master and servant exists. The 
 chief difficulty in applying this rule is in determining what state of facts 
 amounts to a release of control by the person possessing the right to 
 retain it, as an employer, and what amounts to a retention of control. 
 ' These questions are usually for the jury, under proper instructions from 
 the court. See Mnmby v. Bowden, 25 Fla. 454; Andrews v. Boedecker, 
 17 111. App. 213; Bennett v. Traebody, 66 Cal. 509; 56 Am. Eep. 117; 
 MuUanw. Steamship Co., 78 Pa. St. 26; 21 Am. Eep. 2; Eiley v. State 
 Line Steamship Co., 29 La. An. 791; 29 Am. Eep. 349; St. Louis, etc., E. 
 Co. V. Willis, 38 Kan. 330; 16 Pac. Eep. 728; Eankin v. Merchants' & M. 
 T. Co., 73 Ga. 229; 54 Am. Eep. 874; Toledo v. Cone, 41 Ohio St. 149; 
 Eummell v. Dilworth, 11 Pa. St. 343; Lean v. Burbank, 11 Minn. 277; 
 Lowell V. Boston & L. E. Co., 23 Pick. 24; Earle v. Hall, 2 Mete. 353; 
 Brackett v. Lubke, 4 Allen, 138; Hallow v. Farnum, 9 Allen, 47; Schwartz 
 V. Gilmore, 45 111. 455; Larock v. Ogdensburg & L. C. E. Co., 26 Hun, 
 382; Forsyth v. Hooper, 31 Allen, 419; Cincinnati v. Stone, 5 Ohio St. 38; 
 Clark V. Fitch, 2 Wend. 459; Lipe v. EisenleTd, 32 N. Y. 229; Hartwig «. 
 Bay State S. & L. Co., 43 Hun, 425; Schrubbe v. Connell, 69 Wis. 476; 34 
 N.W. Eep.603; Stone v. Codman, 15 Pick. 297; Morgan v. Bowman, 22 
 Mo. 538; Linnehan ». Eollins, 137 Mass. 123; 50 Am. Eep. 287; New Orleans, 
 etc. E. E. Co. V. Norwood, 62 Minn. 565; 52 Am. Eep. 191 : Ward v. Young, 
 42 Ark. 542; Burton v. Galveston & H. E. Co., 61 Tex. 526; 21 Am. & 
 Eng. E. E. Cas. 218; Clapp v. Kemp, 122 Mass. 481; Hiiff v. Ford, 126 
 Mass. 24; Baxter v. Warner, 13 N. Y. Supreme Ct. 585; Eaton v. 
 European E. Co., 59 Me. 520; Darmstuetter v. Moynahan, 27 Mich. 188: 
 Larson v. Metropolitan S. E. Co., 110 Mo. 234; 19 S. W. Eep. 46; Spisak 
 V. Baltimore & O. E. Co., 152 Pa. St. 281; 25 At. Eep. 497; Bernauer v. 
 Hartman Steel Co., 33 111. App. 491; Southern Express Co. v. Brown, 67 
 Miss. 260: 7 So. Eep. 318; 8 So. Eep. 425; Hickey v. Merchants' & M. T. 
 Co., 162 Mass. 39; 24 N. E. Eep. 860; Singer Mfg. Co. v. Eahn, 132 U. 
 S. 518; Brown v. Smiih, 86 Ga.274; 12 S- B. Eep. 411; Douglass v. 
 Stephens, 18 Mo. 362; Wilkins v. Gilmore, 2 Humph. 140. 
 
 An extreme case is that of Fay v. Davidson (113 Minn. 623), in which 
 it was held, that although the owner of an interest in a vessel, by con- 
 tract renounce his right to control, right to hire, discharge, etc, yet, 
 if the boat is run for him and his interest, he is liable as master. But 
 see Sproul «. Hemmingway, 14 Pick. (Mass.) 1. 
 
92 PERSONS AFFECTED BT TORTS. 
 
 of whom the one has the order and control of the work done 
 b}' the other. A master is one who not only prescribes to 
 the workman the end of his work, but directs, or at any 
 
 Where one contracts with another, exercising an Independent calling, 
 to do certain work for him, not subject to his orders or control as to 
 manner of performance, but only as to results to be obtained, the latter 
 is said to be an " independent contractor," for whose torts and those of 
 his servants the employer is not liable:'- Hitle v. Republican Valley R. 
 Co., 19 Neb. 620; McDonnell v. RiBe Broom Co., 71 Mich. 61; .S8 N. W. 
 Rep. 681; Chicago CityR. Co. ». Hennessey, 16 111. Ap. 153; Hexamer 
 V. Weber, 101 N. Y. 377; 54 Am. Rep. 703; Matthes v. Kerrigan, 53 N. T. 
 Superior Ct. 431; Blalje v. Ferris, 6 N. Y. 48; Boswell v. Laird, 8 Cal. 
 469; Kellogg f;. Fayne, 21 la. 575; Hass v. Philadelphia, etc.. Steamship 
 Co., 88 Pa. St. 269; Am. Rep. 462,- McCarthy v. Second Parish, 71 Me. 
 318; 36 Am. Bep. 820; Wabash, etc., R. Co. v. Farver, 111 Ind. 195; 3i 
 Am. & Eng. R. Cas. 134; Edmundson v. Pittsburg, etc., R. Co., Ill Pa. 
 St. 316; 23 Am. & Eng. R. Cas. 423; Wray v. Evans, 80 Pa. St. 102; Cal- 
 lahan V. Burlington R. Co., 23 la. 562 ; Sweeny v. Murphy, 32 La. An. 628; 
 Hilliard v. Richardson, 3 Gray, 349; Vanderpool v. Husson, 28 Barb. 196; 
 Gilbert v. Beach, 4 Duer, 423; Annen v. Willard, 57 Pa. St. 374; Fink v. 
 Missouri Furnace Co., 82 Mo. 276; 52. Am. Rep. 376; Martin v. Tribune 
 Assn., 80 Hun, 391; Smith v. Simmons, 103 Pa. St. 32; New Orleans &N. 
 E. R. Co. V. Reese, 61 Miss. 581; Aston v. Nolan, 63 Cal. 269; Bailey ». 
 Troy &B. R. Co., 57 Vt. 252; 52 Am. Rep. 129; Harrison ». Collins, 86 Pa. 
 St. 153; Tiffin B. McCormack, 34 Ohio St. 638; Hale v. Johnson, 80 HI. 
 185; Deford v. State, 30 Md. 179; Scbular v. Hudson River R. Co., 38 
 Barb. 653; O'Rourke ». Hart, 7 Bosw. 511; Clarke v. Vermont & C. E. 
 Co., 28 Vt. 103; Du Pratt v. Lick, 38 Cal. 691 ; Harris v. McNamar (Ala.), 
 12 So. Rep. 103; Geer v. Darrow, 61 Conn. 230; 23 At. Rep. 1087; Char- 
 lebois V. Gogebic & M. R. Co., 91 Mich. 59; 61 N. W. Rep. 812; Fulton 
 County S. R. Co. o. McConnell, 87 Ga. 756; 13 S. B. Rep. 828; Long v. 
 Moon, 107 Mo. 834; 15 S. W. Rep. 810; Scarborough o. Alabama Midland 
 R. Co., 94 Ala. 497; It) So. Rep. 316; Wiener v. Hammel, 14 N. Y. S.Rep. 
 :i65; McCannw. Kings Co. E. R. Co., 19 N. Y. S. Rep. 668; Atlanta & P. 
 R. Co. V. Kimberly, 87 Ga. 161 ; 13 S. E. Rep. 277 ; St. L. A. & T. R. Co. v. 
 Knott, 54 Ark. 424; 16 S. W. Rep. 9; Charlock ». Freed, 125 N. Y. 357; 26 
 N. E. Rep. 262; Larow v. Clute, 14 N. Y. 616; Vincennes Water Supply 
 Co. V. White, 124 Ind. 376; 24 N. E. Rep. 747; Rome & D. R. Co. v. Chas- 
 teen, 88 Ala. 591; 7 So. Rep. 94; St. L. I. M. & S. R. Co. v. Yonley, 58 
 Ark. 503; 12 S. W. Rep, 333. 
 
 And the same rule obtains as between a contractor and a sub-contrac- 
 tor. Hart V. Ryan, 6 N. Y. S. Rep. 921 ; Gourdler v. Cormack, 2 E. D. 
 Smith, 254; Gately v. Kniss, 64 la. 537; McCleary v. Kent, 3 Duer, 27; 
 Devlin v. Smith, 89 N. Y. 470; Hilliard v. Richardson, 3 Gray, 349. 
 
 But where wqrk causing injury is done by an independent contractor 
 
MASTER AND SERVANT. 93 
 
 moment may direct the means also, or, as it has been put, 
 " retains the power of controlling the work " (6) ; and he 
 who does w(Ark on those terms is in law a servant for 
 whose ficts, neglects, 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 bf 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 
 beforehand. For the acts or omissions 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. Jf 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 aft-er my own fashion ; I 
 shall begin the wall at this end, and not at the other ;' 
 there the relation of master and sei-vant does not exist, and 
 the employer is not liable " (c). " 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. 
 You cannot go further back and make the employer of that 
 person liable " (d). He who controls the work is answer- 
 able for the workman ; the remoter employer who does not 
 control it is not answerable. This distinction is thoroughly 
 settled in ouf law; the difficulties that may arise in apply- 
 
 (6) Grompton J., Sadler v. Sentock made on an occasion of Importance by a 
 
 (1855), i K. &. B. 570, 578, 24 L. J. Q. B. great master of the common law. 
 138, Ul. ( d) WlUes J., Murray v. OtrHe (1870 ), 
 
 ( c ) BramweU L. J., Emp. L. 1877, p. L. E. 6 0. P. 24, 27, 40 L. J. 0. P. 26, 
 58. An extra-jndiclal statement, but 
 
 the employer is liable If the particular work was directly authorized. 
 Palmer v. London, 5 Neb. 136; Waller v. Lasher, 87 111. App. 609; Beatty 
 B. Thileman, 8 N. Y. Eep. 645; Stone v. Cheshire E. Co., 19 N. H. 427; 
 Bobbins v. Chicago, 4 Wall. (379; Chicago v. Robbins, 2 Blackf. 418. 
 
94 PERSONS AFFECTED BY TORTS. 
 
 ing it are dijBSculties of ascertaining the facts (e). It may 
 be a nice question whetiier a man has let out the whole of 
 a given work to an " independent contractor," or reserved 
 so much power of control as to leave him answerable for 
 what is done {/). 
 
 Speciflc assumption of control. It must be remem- 
 bered that the remoter employer, if at any point he does 
 interfere and assume specific control, renders hinlself 
 answerable, not as master, but as principal. He makes 
 himself " dominus pro tempore." Thus the hirer of a 
 carriage, driven by a coachman who -is not the hirer's ser- 
 
 (e) One comparatively early case, Jitish within wliioh the very wide language of 
 
 V. Steinman, 1 B. & P. 404, disregards the Art. 1384 is to be applied : Saiuctelette, 
 
 rule ; but that case has been repeatedly op. cU. 137. 
 
 commented on with disapproval^ and is (/) PendUburghv. Oremhalgh (1875), 
 
 not now law. See the modern author!- 1 Q. B. Div. 36, 45 L. J. Q. B. 3, differing 
 
 ties well reviewed in Hillard v. Richard- from the view of the same facts taken 
 
 son (Sup. Court, Mass. 1856), 3 Gray, 349; by the Court of Queen's Bench in TayUrr 
 
 and in Bigelow L. C. Exactly the same v; Oremhalgh (1874), L. E. 9 Q. B. 487, 43 
 
 distinction appears to be taken under L. J. Q. B. 168. 
 the Code Napoleon in fixing the limits 
 
 Specific assumption of control. Following the general rule that 
 the employer who retains direction and control of the vyork is responsi- 
 ble for the^^wrongful acts of the contractor and his servants, it is rea- 
 sonable, that where the employer interferes during the progress of the 
 work let to another and assumes control, he should, at that moment, 
 assume the responsibilities as master; and this is the rule. Hefterman 
 V. Benkard, 1 Eobt.-432{ Savannah & W. R. Co. v. Phillips, 90 Ga. 829'; 
 17 S. E. Rep. 82. 
 
 A coachman, hired with the coach, doe's not become the bailee's ■ 
 servant. New Yorh, etc., R. Co. v. Steinbrenner, 47 N. J. L. 161; 54 
 Am. Rep. 126; S. P., Crockett ». Calvert, 8 Ind."127; Quinn|o. Complete 
 Electric Co., 46 Fed. Rep. 606; Muse v. Stern, 82 Va. 33. 
 
 So, it has been held, that where a passenger in a carriage, driven by^a 
 servant of the carrier, upon being assured by the driver that a vehicle in 
 front can be passed, gives au order to that effect to the driver, the pas- 
 senger is not liable for the resulting accident. Richardson «. Van Ness, 
 53 Hun, 267; 6 N. Y. S. Rep. 618; Michael v. Stanton, 3 Hun, 462; 6 
 Thomp. & C. 634. See Joslin v. Grand Rapids Ice Co., 60 Mich. 520; 45 
 Am. Rep. 54; Brophy v, Bartlett, 108 N. Y. 632, 15 N. E. Rep. 368; 
 Chicago R. Co. b. Volk, 46 111. 175; Morrell v. Pheinfrank, 24 Fed. Rep. 
 94. Contra, Boniface ». Eelyea, 6 Robt. 397; 5 Abb. Pr. (N. S.) 259. 
 
MASTER ANH SERVANT. 95 
 
 vant but the letter's, is not, generally speaking, liable for 
 harm done by the driver's negligence (g). But if he orders, 
 or by words or conduct at the time sanctions, a specific act 
 of rash or careless .driving, he may well be liable (/«). 
 Rather slight evidence of personal interference has been 
 allowed as sufficient in this class of cases (i). 
 
 Temporary transfer of service. 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 h-ira is still A.'s. The owner of a vessel em- 
 ploys 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 
 orders. In the work of unloading these men are the ser- 
 vants of the stevedore, not of the owner (j). 
 
 (,g) Even if the driver was selected (h) McLaughlin.-^. Pryor (1842), 4 M. & 
 
 by himself: gjtonBBW v. -B«r«ett (1810), 6 G. 48. 
 
 M. & W. 499. So where a vessel is hired (i) lb. ; Burgess v. Gray (1845), 1 0. B. 
 
 with its crew: Ddlyelly. Tryer (1858), 8 578, 14 L. J. 0. P. 184. It Js difficult in 
 
 E. B. & E. 899, 28 L. J. Q. B. 52. So where either case to see proof of more than 
 
 a contractor finds horses and drivers to adoption or acquiescence. Cp. Jones v. 
 
 draw watering carts for a municipal Corporation of Liverpool (1885), 14 Q. B. 
 
 corporation, the driver of such a cart is t>. at pp. 893-4, 54 L. J. Q. B. 345. 
 
 not the servant of the corporation : Jones ij) Murray v. Currie (1870), L. E. 6 C. 
 
 v. Corporation of Liverpool (1885), 14 Q. P. 24, 40 L. J. C. P. 26. Cp. Wild v. Way- 
 
 B. D. 890, 54 L. J. Q. B. 345; cp. LUtle v. good, '92, 1 Q. B. 783, 61 L. J. Q, B. 391, 
 
 Hackelt (1886), 116 U. S. at pp. 371-3, 377. 0. A. 
 
 Temporary transfer of service. A person availiog himself of the ser- 
 ' vices of another's servant becomes, for the time, his master. Wood o. 
 Cobb, 3 Allen. 58; Burke v. Norwich R. Co., 34 Conn. 374; Stevens ii. 
 Armstrong, 6 N. Y. 435; Young v. New York.K. Co., 30 Barb. 229; Stone 
 V. Western Transportation Co., 38 N. Y. 240. 
 
 Where A. told his servant to drive to B's, then to return by a certain 
 route. On the servant's arrival, B. pnrsuaded him to go on an errand 
 for him; it was held, that for the space of time used on the errand the 
 servant was not A's, but B's. Stone v. Hill, 45 Conn. 44. See Sher- 
 idan V. Charllck, 4 Daly, 338; Cavanaugh v. Dinsmore, 19 N. Y. Supreme 
 Ct. 465; Wyllie v. Pulmer, 63 Hun, 33; 17 N. Y. S. Rep. 434. 
 
96 PERSONS AFFECTED BY TORTS. 
 
 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 engineers to work the 
 engine are to be provided by the owners. The engine that 
 has been used in excavating the shaft is handed over ac- 
 cordingly to the contractor ; the same engineer remains in 
 charge of it, and is still paid by the owners, but is under 
 the orders of the contractor. During the continuance of 
 the work on these terms the engineer is the servant not of 
 the colliery owners but of the contractor (k). 
 
 But where iron founders execute specific work about the 
 structure of a new building under a contract with the arch- 
 itect, and without any contract with the builder, their work- 
 men do not become servants. of the builder (l). 
 
 "Power of controlling the work" explained. It is 
 
 proper to add that the " power of controlling the work " 
 which is the legal criterion pf the relation of a master to 
 a servant does not necessarily mean a present and physical 
 ability. Shipowners are answerable for the acts of the 
 master, though done under circumstances in which it is 
 impossible to communicate with the owners (»n). It is 
 enough that the servant is bound to obey the master's 
 
 (i) Bourke v. WliMe Moss Colliery Co. (ns) See Mauije and Pollock, Merchant 
 
 (lb77), 2 C. P. Div. 205, 46 L. J. C. P. 283. Shipping, 1. 158, 4th ed. 
 If) Johnson v. Lindsay (1891), A. C. 371. 
 
 " Power of controlling tlie work, " explained. Upon this subject see 
 cases cited in American notes, ante^ p. 72. 
 
 Shipowners are liable for the torts of the officers in charge. Spencer 
 V. Kelley, 32 ¥ed. Rep. 838; Yates ». ferown, 8 Pick. 23 ; The E. M. Nor- 
 ton, 15 Fed. Eep. 686; Korah v. Ottawa, 32 111. 121 : St. John v. Paine, 10 
 How. 657 ; Germania Ins. Co. V. The Lady Pike, 21 Wall. 1 ; Chamberlain 
 ■0. "Ward, 21 How. 548; Ward v. Chamberlain, 21 How. 572. 
 
 But the shipowners are not liable for the personal tort of the master, 
 that being beyond the .scope of his authority. North American D. & I. 
 Co. V. The River Mersey, 46 Fed. Rep. 686. 
 
 In Geer o. Darrow (61 Conn. 230; 23 At. Rep. 1087), it is held, that a 
 contractor is liable for an injury resulting from improper use of con- 
 struction apparatus, although not present. 
 
COURSE OF EMPLOYMENT. 97 
 
 directions if and when communicated to him. The legal 
 power of control is to actual supervision what in the doc- 
 trine of possession the intent to possess is to physical deten- 
 tion. 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 
 exemption of the owner from liability for such a pilot's acts 
 is but in affirmance of the common law (n). 
 
 What is in course of employment. 2. Next, we have 
 to see what is meant by the course of service or employ- 
 ment. The injury in respect of which a master becomes 
 subject to this kind of vicarious liability aiay 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. 
 
 (n) Merchant Shipping Act, 1854, b. semble that of master and servant for 
 
 388; The Halley (1868), L. R. 2 P. 0. at p. the purpose of creating a duty to the 
 
 201. And see Marsden on Collisions at public: King v.. London Improved Cab 
 
 Sea, ch. 6. On the other hand there may Co. (1889) , 23 Q. B. Dir. 281. 
 be a statutory relation which does re- 
 
 What is In course of employment. There are a few cases defining 
 what is meant by "course of employment," and many illustrating the 
 application of the term as a limitation of the liability of the master for 
 the torts of the servant. See Gregory's Admr, v. Ohio Elver R. Co., 37 
 W. Va. 606; 16 S. E. Rep. 819; Moore v. Columbia & G. R. Co (S. C), 
 16 S. B. Rep. 781; Illinois Cent. R. Co. v. Ross, 31 111. App. 170, Donald- 
 son V. Miss. & Mo. R. Co., 18 la. 281; Consolidated Ice M. Co. v. Eeifer, 
 134 111. 481; 25 N. B. Rep. 799; Jones v. St. Louis N. & P. Packet Co., 43 
 Mo. App. 398 ; Courtney v. Baker, 37 N. Y. Superior Ct. 249 ; and see cases 
 cited infra, pp. 77-87. 
 
 « An act though not ordered is in the scope of employment if of such 
 a nature as might be justified without such order, and the master is 
 liable for its unskillful execution." Gllmartin v. New York, 55 Barb. 239. 
 
 7 
 
98 PERSONS AFFECTED BY TORTS. 
 
 (c) The servant's wrong may consist in excess or mis- 
 
 taken execution of a lawful authority! 
 
 (d) Or it may even be a wilful wrong, such as assault, 
 
 provided the act is done on the master's behalf 
 and with the intention of serving his purposes. 
 1 Let us take these heads in order. 
 
 Execution of specific orders, (a) Here the servant is 
 the master's agent in a proper sense, and the master is 
 liable for that which he has truly, not by the fiction of 
 a legal maxim, commanded to be done. He is also lia- 
 ble for the natural consequences of his orders, "even 
 though he wished to avoid them, and desired his ser- 
 vant to avoid them. Thus, in Gregory v. Piper (o) a 
 right of way was disputed between adjacent occupiers, 
 and the one who resisted .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 authorized. 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 
 consequences ; no more than he can disclaim responsibility 
 for the natural consequences of what he does himself. 
 
 Negligence In conduct of master's business, (b) Then 
 
 comes the case of the servant's negligence in the perform- 
 
 (o)9B.& 0.591 (1829). 
 
 Negligence in conduct ol master's business. The American author- 
 ities agree with the statement o£ the text; a few of the numerous cases 
 are Williams ». Pullman Palace Car Co., 40 La. An. 417; 38 Am. & Ens. 
 R. Cas. 414; Atchison, etc., R. Co. v. Galins, 36 Kan. 749; Conloni). East- 
 ern R. Co., 135 Mass. 195; 15 Am. & Eng. R. Cas. 99; Mclntire R. Co. v. 
 
COURSE OF EMPLOYMENT. 99 
 
 ance of his duty, or rather while he is about his master's 
 business. What constitutes negligence does not just now 
 concern us; but it must be established that the servant is a 
 wrong-doer, and liable to the plaintiff, before any question 
 of the master's liability 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 
 engaged 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 cannot be said to 
 do it by his servant, and therefore is not responsible for 
 the negligence of his s,ervant in doing it"(^). For 
 example: "If a servant driving 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 perform 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 master will be liable, being an act done in pur- 
 suance of the servant's employment " {q). 
 
 (p) Manle J,, Mitchea t. CrasmeUer (q) Cro/t v. Aliscmr(lSil),i B. & A. 590. 
 
 (1853). 13 C. B. 237, 22 L. J. 0. P. 100. 
 
 Bolton, 43 Ohio St. 224; 21 Am. &Eng. R. Cas. 501; Northern Pac. R. Co. 
 V. Herbert, 116 U. S. 612; 24 Am. & Eag. R. Cas. 407; Osborne v. McMas- 
 ters, 40 Minn. 103; Cincinnati, etc., E. Co. v. Smith, 22 Ohio fN. S.), 227; 
 10 Am. Rep. 729; Lnttrell B. Hazen, 3 Sneed (Tenn.),20; Tnel». Westan, 
 47 Vt. 634; Quinn v. Power, 87 N. Y. 535; Hays v. Miller, 77 Pa. St. 238 ^ . 
 18 Am. Rep. 445; Pickens v. Diecker, 21 Ohio fN. S), 212; 8 Am. Rep.* 
 65; Martin v. Richards, 155 Mass. 381; 29 N. E. Rep. 591; Brazil v. 
 Peterson, 44 Minn. 212 ; 46 N. "W. Kep. 331 ; Ellegard v. Acklund, 43 Minn. 
 352; 45 N. W. Rep. 715; Oil Creek, etc., R. Co. v. KeighrOn, 74 Pa. St. 
 316; Thayer v. City of Boston, 19 Pick. 511; Hays v. Gainesville St. R. 
 Co., 70 Tex. 602; 34 Am. & Eng. E. Cas. 97; Philadelphia, W. & B. R. Co. 
 V. Philadelphia, etc., Towboat Co., 23 How. 209; Mobile & M. Ry. Co. v. 
 Smith, 59 Ala. 245; Denver, S. P. & P. R. Co. v. Conway, 8 Colo. Ij Ban- 
 ister V. Pennsylvania Co., 98 Ind. 220; Leavenworth etc., Ry. Co. v. 
 Forbes, 37 Kan. 445; Colvln v. Peabody, 1.55 Mass. 104; 29 N. E. Rep. 59; 
 Singer Mfg. Co. ». Rahn, 132 Mass. 518; 10 S. Ct. Rep. 175. 
 
100 PERSONS AFFECTED BY TORTS. 
 
 Departure or deviation from master's business. 
 
 Whether the servant is really bent on his master's affairs 
 
 Departure or deviation from master's business. The American 
 authorities are in substantial accord with those of England. Thus, it 
 was said by the court In the case of Howe v. Newmarch (12 Allen, 49), 
 that; " If the servant, wholly for a purpose of his own, disregarding the 
 object for which he is employed, and not intending by his act to execute 
 It, does an injury to another not within the scope of his employment, the 
 master is not liable." See Way «. Powers, STVt. 135; Sheridan v. Charlick, 
 4 Daly, 338; Chicago, B. & Q. R. Co. v. Casey, 9 111. App. 632 ; Cavanaugh 
 V. Dinsmore, 19 N. Y. Supreme Ct. 466; Bard v. John, 26 Pa. St. 482; 
 Baker w. Kinsey, 38 Cal. 631; Wright©. Wilcox, 19 Wend. 343; Parsons 
 V. Winchell, 5 Cush. 592; Boulard v. Calhoun, 13 La. An. 445; Brown v. 
 Purirance, 2 Har. & G. 316; Adams v. Cost, 62 Md. 264; 50 Am. Rep. 211; 
 Dawkins v. Gulf C. & S. F. R. Co., 77 Tex. 232; 13 S. W. Rep. 984; Thorp 
 V. Minor, 109 N. C. 152; 13 S. E. Rep. 702; Stephenson i;. South Pac. R. 
 Co., 93 Cal. 658; 29 Pac. Rep. 234; Louisville, etc., R. Co. v. Douglass, 
 69 Miss. 723; 11 So. Rep. 933; Southern Express Co. v. Pitzner, 59 Miss. 
 581; Dells v. StoUenwerk, 78 Wis. 330; 47 N. W. Rep. 431. 
 
 Where a master of a ferry boat left the wharf without the requisite 
 consent of the owners of the boat and took a burning barge in tow, which 
 set flre to other boats; it was held, that the owners of the boat were not 
 responsible for the conduct of the master. Aycrigg v. New York, etc., 
 E. Co., 30 N. J. L, 460. 
 
 A bill-poster who wantonly throws a heap of bills into the road fifteen 
 miles from where they should have been posted, does not charge his 
 employer with liability for a runaway caused by two of the bills being 
 blown against the horse of plaintiff's intestate. Smith v. Spitz, 166 Mass. 
 319; 31 N. E. Rep. 6. 
 
 The nice discrimination sometimes observed by the courts in the ap- 
 plication of these principles is illustrated in the case of Cobb v. Columbia 
 & G. R. Co. C37 S. C. 194; 15 S. B. Rep. 878), in which a railroad com- 
 pany is held liable for the misconduct of an engineer in nnnecessarily 
 and wilfully sounding the whistle and blowing off steam, so as to frighten 
 a horse, and cause hini to run away; but not for the misconduct of the 
 trainmen in yelling and shonting at the horse. 
 
 In the case of Mielvehill v. Bates (31 Minn. 364), where the owner of 
 an express wagon employed a driver, and intrusted the wagon to him, 
 generally, to be used, at his discretion, in securing and doing business; 
 thus employed, the driver, having delivered a trunk, on his return got 
 "a load of poles for himself," and, while taking them home, negligently 
 drove over and injured the plaintiff's child ; it was held, that the master 
 was liable for the Injury. 
 
 In another case, where the pilot in charge of a ferry boat took on a 
 boatman, agreeing without compensation, to put him on board his boat, 
 
COURSE OF EMPLOYMENT. 101 
 
 or not is a question of fact, but a question which may be 
 troublesome. Distinctions are suggested by some of the 
 reported cases which are almost too fine to be acceptable. 
 The principle, however, is intelligible 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 course of employment as to 
 determine or suspend the master's responsibility. But 
 where there is not merely deviation, but a total departure 
 from the course of* the master's business, so that the ser- 
 vant may be said to be " on a frolic of his own " (r), 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. 
 
 Whatmau v. Pearson. In Whatman v. Pearson (s), a 
 carter who was employed by a contractor, having the 
 allowance of an hour's time for dinner in his day's work, 
 but also having orders not to leave his horse and cart, or 
 the place where he was employed, happened to live hard 
 
 (r) Parke B., Joel v. Morieon (1834), 6 som (1873), L. E. 8 C. P. at p. 567, 42 L. J. 
 C. & P. 503: a nisi prlns case, bnt often O. P. 302. 
 cited with approval; see Bums v. PoW- («) L. E. 3 O. P. 422 (1868). 
 
 which was part of a tow passing up the river. The ferry boat diverged 
 from its course to reach the tow, and through the negligence of those in 
 charge, collided with a canal boat attached thereto, upon which was 
 plaintiff's Intestate, who was thrown by the collision into the river and 
 drowned. The defendant (the owner of the ferry boat), was held re- 
 sponsible for the accident. Quinn v. Power, 87 N. Y. 535; 41 Am. Rep. 
 392; reversing 17 Hun, 102. See Smith v. Webster, 23 Mich. 298; Tuel 
 V. Weston, 47 Vt. 624 ; Leviness v. Post, 6 Daly, 321 ; Wolfe v. Merserean, 
 4 Duer. 473; Chapman v. New York, etc., K. Co., 33 N. Y. 369; Simons 
 V. Monier, 29 Barb. 219; Chicago, M. & St. P. R. Co. v. West, 125 111. 320; 
 17 N. E. Rep. 788 ; Simonin v. New York, etc., R. Co., 36 Hun, 214 ; Bonner 
 V. Bryant (Tex.), 21 S. W. Rep. 649 ; Baxter v. Chicago, etc., R. Co. (la.), 
 54 N. W. Rep. 350; Garretzen v. Duenchkel, 50 Mo. 104; Northwestern 
 R. Co. ». Hack, 66 III. 238; Schaefer v. Osterbrink, 67 Wis. 495; 58 Am. 
 Jlep. 875. 
 
102 PERSONS AFFECTED BY TOKTS. 
 
 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 plaintiff's railings. 
 A jury was held warranted in finding that the carman was 
 throughout in the course of his employment as the con- 
 tractor's servant " acting within the general scope of his 
 authority to conduct the horse and cart during the 
 day "CO- 
 
 Storey v. Ashtou. In Storey v. Ashton (u), a carman 
 was returning to his employer's office with returned empties. 
 A clerk of 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 in this direction he ran over 
 the plaintiff. The Court held that if the 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 orhis fellow-servant's account, and 
 could not in any way be said to be carrying out his master's 
 employment" (x). 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 servant'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 employ- 
 ment" (3/). 
 
 («) Byles J., at p. 425. step he drove was away from his duty:" 
 
 («) (1869) L. E. i Q. B. 476, 38 L. J. Q. Mellor J., ibid. But it could have made 
 
 B. 223. Mitchell V. Cra«swe!fer, cited on no difference if the accident had hap- 
 
 p. 77, was a very similar case. pened as he was coming back. See the 
 
 (X) Lush J. at p. 480. It was "an en- next case. 
 
 tirely new and independent journey, (.v) Eaynery. Mitchell {ISnt.iC.F.T). 
 
 which had nothing at all to do with his 357. 
 
 employment: " Oookburn 0. J- " Every 
 
EXCESS OF AUTHORITY BY SERVANT. 103 
 
 Williams v. Jones. 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 pur- 
 pose of his employment, A. was not liable to B. (z). It 
 does not seem difficult to pronounce that lighting a pipe is 
 not in the course of a carpenter's employment ; but the 
 cas,e 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 exclusive use or 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 reported decision, of a miner opening his 
 safety-lamp to get a light for his pipe, and thereby causing 
 an explosion ; where " it seems clear that the employer 
 would not be held liable " (a). 
 
 Excess or mistake in execution of authority, (c). An- 
 other kind of wrong which may be done by a servant \n his 
 
 («) Williams v. Jones (1865). Ex. Ch. 3 (a) R. S. (now Mr. Justice) Wright, 
 
 H. & C. 256, 602, 33 L. J. Ex. 297; diss. Enip. L. 1876, p. 47. 
 Mellor nod Blacfebnrn JJ. 
 
 Sxcess or mistake in execution of authority. The master Is liable 
 for the wrongful act of the servant to the Injury of a third person, when 
 the servant is engaged at the time In doing his master's business and 
 was acting in the scope of his general authority; although, the servant 
 departed from the private instructions of the master, abused his author- 
 ity, was reckless in the performance of his duty, and inflicted unnecessary 
 Injury. Rounds v. Del. L. & W. E. Co., 64 N. T. 129; 5 Thomp. & C. 
 475; i Hud, 329. 
 
 Thus, where a gate-keeper, authorized to keep order, ejects plaintiff 
 for fanciful objections to his demeanor and assaults him, the employer is 
 liable. Oakland City A. & I. Soc. v. Bingham (lod. App.), 31 N". E. Eep. 
 383. See New Orleans, etc., R. Co. v. Hanning, 16 Wall. 649; Ochsenbein 
 
104 , PERSONS AFFECTED BT TORTS. 
 
 master's business, and so as to make the master liable, is 
 the excessive or erroneous execution of a lawful authority. 
 To establish a right of action against the master in such a 
 case it must be shown that (a) the servant intended to do 
 on behalf of his master something of a kind which he was 
 in fact authorized to do; (/?) 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 authori^d 
 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. 
 
 Interference with passengers by guards, etc. Most of 
 the cases on this head have arisen out of acts of railway 
 servants on behalf of the companies. A porter whose duty 
 
 V. Shapley, 85 N. Y. 214; Heenrlch v. Pullman, etc., Co., 20 Fed. Eep. 
 100; 18 Am. & Eng. E. Cas. 379; Molloy ». New York, etc. R. Co., 10 
 Daly, 463; Gulf & S. F. E. Co. v. Kirkland, 79 Tex. 457; 15 S. W. Eep. 
 495; Chicago, E. I. & P. E. Co. .v. Conklin, 32 Kan. 55; Isaacson ». New 
 York, etc., E. Co., 94 N. Y. 278; Pittsburg, etc., R. Co. v. Kirk, 102 Ind. 
 399. 
 
 So, a railroad conductor or brakeman has Implied authority to remove 
 trespassers, but if he recklessly ejects one from a train, the company is 
 liable. Hoffman v. New York, etc., E. Co., 87 N. Y. 25; Carter v. Louis- 
 ville, etc., Ey. Co., 98 Ind. 552; Atchison, etc., R. Co. v. Thul, 32 Kan. 
 255; Kansas City, etc., E. Co. v. Kelley, 36 Kan. 656; 14 Pac. Rep. 172; 
 Lovett«. Salem & S. D. E. Co., 9 Allen, 657; Holmes e. Wakefield, 12 
 Allen, 680; Jeffersonville E.,Co. v. Eogers, 38 Ind. 116; Kline v. C. P. E. 
 Co., 37 Cal. 400; Shea v. Sixth Ave. E. Co., 62 N. Y' 180; Higgins o. 
 Watervllet Turnpike Co., 46 N. Y. 23; Chicago, M. & St. P. B. Co. v. 
 West, 24 111. App. 44; affirmed 125 111. 320; 17 N. E. Eep. 788. 
 
 For the servant's mistakes the master is liable. Marshall v. St. Louis 
 K. C. & N. Ey. Co., 78 Mo. 610; White v. Bank, 1 Brews. 234; See Mc- 
 Kinley v. C. & N. W. E. Co., 44 la. 314. 
 
 Interference with passengers by guards, etc. Where a street car 
 conductor threw a boy from the car, whom he erroneously supposed was 
 stealing a ride; it was held,, that though the conductor acted without 
 malice and with a sole view to further the master's business, as he viewed 
 
EXCKSS OF AUTHOElTr BY SERVANT. 105 
 
 is, amoDg other things, to see that passengers do not get 
 into wrong trains or carriages (but not to remove them 
 from a wrong carriage), asks a passenger who 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 rhake the company 
 liable (6). 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 execut- 
 ing 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 determine, 
 
 (6) Bayley r. Mancheister, Sheffield and 415, 41 L. J. C. P. 278, in Ex. Oh. 8 C. P. 
 Lincolnshire R. Co. (1873-3), L. E. 7 C. P. 148, 42 L. J. 0. P. 78. 
 
 It, defendant company was liable. Schulz v. Third Ave. K. Co., i6 N. T. 
 Super. Ct. 211. 
 
 In Pennsylvania R. C. v. Toomey (91 Pa. St. 266), it was held, that a 
 railroad company is responsible for an ejectment from a car, by the con- 
 ductor, when the act was wrongful or reckless, but not when it was 
 malicious. S^e New York, etc., Ry. Co. v. Harlng, 47 N. J. L. 137; 
 Higgins V. Watervliet, etc., Co., 46 N. Y. 23; 7 Am. Rep. 293; Goleman v. 
 New York, etc., B. Co., 106 Mass. 160 ; HofEman i). New York, etc., B. Co., 
 87 N. Y. 25; 41 Am. Rep. 337; Pennsylvania R. Co. v. Vandiver, 42 Pa. St. 
 365; New York L. B. & H. R. Co. v. Harring, 47 N. J. L. 137; Randolph 
 V. Hannibal & St. J. R. Co., 18 Mo. App. 609 ; Kansas City, etc., R. Co. v. 
 Kelly, 36 Kan. 655; Wabash B. Co. ». Savage, 110 Ind. 156; Savannah St. 
 R. Co. V. Bryai}, 86 Ga. 312; 12 S. E. Rep. 307; Meyer ». Second Ave. B. 
 Co., 8 Bosw. 305; Chicago & E. E. Co. v. Flexman, 103 111. 346; 8 Am. & 
 Eng. R. Cas. 354; 42 Am. Eep. 33; Stewart v. Brooklyn, etc., R. Co., 90 N. 
 Y. 688; 43 Am. Rep. 185; Terre Haute & I. R. Co. v. Jackson, 81 Ind. 19; 
 Campbell v. Pullman Palace Car Co., 42 Fed. Rep. 484; Illinois Cent. R. 
 Co. V. Sheehan, 29 111. App. 90; Same v. Smith, Id. 94; Croaker v. Chi- 
 cago & N. W. R. Co., 39 Wis. 657; 17 Am. BBp. 504; Jardine v. Cornell, 
 50 N. J. L. 485; 14 At. Rep. 690; Sanford j). Eighth Ave. R. Co., 23 N. Y. 
 343; Goddard v. Grand Trunk Ry., 67 Mo. 202. 
 
106 PERSONS AFFECTED BY TORTS. 
 
 according to the circumstances that arise, when an act of 
 that class is to be done, and trusts him for the manner in 
 which it is done ; and consequently he is held responsible 
 for the wrong of the person 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 em- 
 ployment " (c). 
 
 Seymour v. Greenwood (c?) 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 altogether mistaken 
 as to the conduct and condition of the passenger thus 
 removed, the owner of the omnibus was answerable. " The 
 master, by giving the guard authority to- remove offen- 
 sive passengers necessarily gave him authority to determine 
 whether any passenger had misconducted himself." 
 
 Arrest of supposed offenders. Another kind of case 
 under this head is where a servant takes on himself to 
 arrest a supposed offender on his employer's behalf. 
 
 (0) Per WiUes J., Bayley v. Man- (<«) 7 H. & N. 356, 30 L. J. Ex. 189, 327, 
 
 Chester, Sheffield, and LmcolnsMre B. Co., Ex. Ch. (1861). 
 L. R. 7 O. P. 415, 41 L. J. O. P. 278. 
 
 Arrest of supposed offenders. The apparently severe rule of holding 
 the master responsible for the servant's wrongful arrest is generally 
 upheld where the conduct of the servant Is within the scope of his em- 
 ployment and authority. The courts are Tightly disposed to vigilantly 
 guard the natural right to liberty against infraction, even by an erring^ 
 servant. Accordingly it is held that a railroad is liable for the false 
 arrest, by its ticket agent, of a passenger on charge of paying for a ticket 
 with counterfeit money. Mulligan v. New York & R. B. E. Co., 14 N. Y. 
 S.'Rep. 456; S. P., Palmerjv. Manhattan R. Co., 14 N. Y. S. Rep. 468. 
 See Rown v. Christopher & T. R. Co., 34 Hun, 471; G. H. & S. A. Ry. Co. 
 V. Donaho, 56 Tex. 165; Fortune v. Trainor, 19 N. Y. S. Rep. 598; Gal- 
 veston, etc., R. Co. v. Donaho, 56 Tex. 162; 9 Am. & Eng. R. C'as. 287; 
 
UNAUTHORIZED ACTS OF SERVANT. 107 
 
 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 this is a necessity to have 
 a person on the spot to act on an emergency, and to deter- 
 mine whether certain things shall or shall not be done, the 
 fact that there is a person on the spot who is acting as if he 
 had express authority is prima facie evidence that he had 
 authority" (e). Railway companies have accordingly been 
 held liable for wrongful 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 (/). 
 
 Act wholly outside authority, master not liable. But 
 
 the master is not answerable if the servant takes on him- 
 
 (e) Blackbnm J., Moore v. Metrop. E. (f) lb;, following Goff v. G. N. R. Co., 
 
 Co. (1872), L. R. 8 Q. B. 36, 39, 42 L. J. Q. a861), 3 E. & E. 672, 80 L. J. Q. B. 148. 
 B. 23. 
 
 Lynch v. Metropolitan, etc., R. Co.,' 90 N. Y. 77; 12 Am. & Eng. R. Cas. 
 119. 
 
 But it has been held, that an arrest by a servant is a departure from 
 the course of employment, and that the master is not liable : as where 
 employes in a store called a policeman and directed him to arrest and 
 esamine the person of a lady suspected of stealing goods, which was done 
 without the authority of the proprietor. The court said : " It cannot be 
 presumed, that a master, by intrusting his servant with his property, 
 and conferring power upon him to transact his business, thereby author- 
 izes him to do any act for its protection that he could not lawfully do 
 himself if present." Mall ». Lord, 39 N. Y. 881. See Mallach i). Ridley, 
 43 Hun, 336; Porter v. The C. R. J. & P. R. Co., 41 la. 358. 
 
 Act wholly outside authority, master not liable. Sustaining this 
 proposition are numerous cases. Thus, in Golden v. Newbrand (62 la. 
 59), it was held, that where an armed watchman, employed to guard a 
 brewery, shot a person who was retreating from the brewery, the act of 
 shooting was not within the line of the watchman's duly. See Cardiff ». . 
 Louisville, etc., R. Co., 42 La. An. 477; 7 So. Rep. 601. 
 
 A railroad company is not liable for fire caused by section hands cook- 
 
108 PEESONS AFFECTED BY TORTS. 
 
 self, 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 com- 
 pany's powers (g). The same rule holds if the particular 
 servant's act is plainly beyond his authority, as where the 
 
 ig) 
 
 Fmilton T. L. ^ S. W. R. Co. (1867), L. E. 2 Q. B. 534, 36 L. J. Q. B. 294. 
 
 ing dinner on railroad embankiq^nt. Morier v. Minneapolis, etc., R. Co., 
 31 Minn. 351 ; 47 Am. Kep. 793. 
 
 Servants of house-mover, wlio, after their day's work is done, build 
 steps for pla.intifi, do not charge the house-mover with their negligence. 
 Dells V. Stoilenwerk, 78 Wis. 330; 47 N. W. Rep. 431. 
 
 A corporation, owning a parlor car in use on a railroad, is not liable 
 for an injury to a person not a passenger, caused by the porter of the 
 car, throwing from the car a bundle containing his personal effects, 
 solely for his own convenience. Walton v. New York, etc., R. Co., 139 
 Mass. 556. 
 
 In the case of Gilliam v. South & N. A. R. Co. (70 Ala. 268j, the facts 
 were, in substance, that the conductor of a passenger train stopped 
 his train, pursued a boy on foot, into the house of the boy's father, 
 with a pistol in his hand, and seized and carried him off on the train; 
 it was held, that these wrongful acts were not within the range of his 
 employment and the company not liable. See Tharp v. Minor, 109 N. C. 
 162; 13 S. E. Rep. 152; Texas P. Ry. Co. v. Moody (Tex. App.), 23 S. W. 
 Rep. 41 ; Yates v. Squires, 19 la. 26 ; Weldon v. Harlem R. Co., 5 Bosw. 
 576 ; McClenaghan v. Brock, 5 Rich. 17 ; Wilste v. State Board Bridge 
 Co., 63 Mich. 639; 30 N. Y. Rep. 370; Walton v. New York, etc., Co., 139 
 Mass. 556; Noblesvflle, etc., Co. v. Gause, 76Ind. 142; 40 Am. Rep. 224; 
 Laffllle V. New Orleans & L. R. Co., 43 La. An. 34; Marion w. Chicago, 
 etc., R. Co., 69 la. 428; Thames Steamboat Co. «. Housatonic R. Co., 24 
 Conn. 40; Church v. Mansfield, 20 Conn. 284; Evansville, etc., R. Co. v. 
 Baum, 26 Ind. 70; McCoy v. McKowen,-26 Miss. 487; Yerger v. Warren, 
 31 Pa. St. 319; Harris v. Nicholas, 2 Munf. 583; Little Miami R. Co. v. 
 Wetmore, 19 Ohio St. 110; Chicago B. and S. R. Co. ». Epperson, 26 HI. 
 App. 72; Nashville & C. R. Co. v. Starnes, 9 Heisk. 66; Campbell v. 
 Northern Pac. R. Co. (Minn.;, 53 N. W. Rep. 768; McCarthy v. Boston, 
 135 Mass. 197; Southern Exp. Co. ■». Fitzner, 59 Miss.681; Foster v. Essex 
 Bank, 17 Mass. 479; Crocker v. New London, etc., R. Co., 24 Conn. 249; 
 Sheridan v. Charlick, 4 Daly, 338; Burke v. Shaw, 59 Miss. 445; 42 Am'. 
 Rep. 390; Cawthorni). Deas, 2 Port. 275; Baker o. Kinsey, 38 Cal. 631; 
 Long V. Chicago, etc., R. Co., 48 Kan. 28; 28 Pac. Rep. 977; WUste v. 
 State Board Bridge Co., 63 Mich. 639; 30 N. W. Rep. 370. 
 
WILFUL TRESPASSES FOR MASTER'S PURPOSES. 109 
 
 officer in charge of a railway station arrests a man on sus- 
 picion of stealing the company's goods, an act which is not 
 part of the company's general business, nor for their 
 apparent benefit (A), In a case not clear on the face of it, 
 as where a bank manager commences a, prosecution, which 
 turns out to be groundless, for a supposed theft of the 
 bank's property — a matter not within the ordinary routine 
 of banking business, but which might in the particular 
 case be within the manager's authority — the extent of the 
 servant's authority is a question of fact (z). Much jnust 
 depend on the nature of the matter in which the authority 
 is giyen. Thus an agent entrusted 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 onthcOther side of. a boundary 
 ditch in order to cut underwood 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 injury to adjacent land, the employer 
 might have been liable. But it was thought unwarrant- 
 able to say " that an agent entrusted with authority to be 
 exercised over a particular piece of land has authority to 
 commit a trespass on other land" (J). More generally, 
 an authority cannot be implied for acts not necessary to 
 protect the employer's property, such as arresting a cus- 
 tomer for a supposed attempt to pass bad money (k). 
 
 Wilful trespasses, etc., for master's purposes. ' (d) 
 
 Lastly, a master may be liable even for wilful and deliberate 
 
 (ft) Edwards \. L. ^ N. W. E. Co. (j) MoWnghroTce v. Swindon Local 
 
 (1870), L. E. 5 0. P. 445, 39 L. J. C. P. 241 ; Board (1874) ,' L. E. 9 0. P. 575, 43 L. J, O. 
 
 a^.AUen v. L. ^ S. W. R. Co. (1870), L. E. P. 576. 
 
 6 Q. B. 65,40 L. J. Q. B. 55. (A) Abrahams v. IleaMn^'91, 1 Q. B. 516 
 
 ii)BanhoflfewSouthWales-v.Owston (C. A.),60L. J. Q. B. 238. 
 (1879) (J. C), 4 App. Oa. 270, 48 L. J. P. C. 
 25. 
 
 Wilful trespasses, etc., for master's purposes. The American author- 
 ities substantially agree with the text. Thus, in the case of Rogahn v. 
 
110 PERSONS AFFECTED Br TORTS. 
 
 wrongs committed by the servant, provided they be done 
 on the master's account and for his purposes ; and this, no 
 
 Moore Mfg. & F. Co. (79 Wis. 573; 48 N. W. Rep. 669), where the ma- 
 terial facts were, that the plaintiff, who had been discharged by the 
 defendant's foreman, was assaulted for not leaving the premises quickly 
 eiioup;h to suit the foreman ; the defendant was held liable. See Ramsden 
 V. Boston & A. R. Co., 104 Mass. 117. 
 
 Where a servant in driving a strange cow from his master's field, 
 killed the cow by striking her with a stone, the master was held liable. 
 Evans v. Davidson, 53 Md. 245; 36 Am. Rep. 400. See Praser «. Free- 
 man, 56 Barb. 234; Cohen v. Dry Dock, etc., R. Co., 69 N. Y. 170; Geraty 
 V. Stern, 80 Hun, 426; Dillingham v. Anthony, 73 Tex. 47; 11 S. W. Rep. 
 139; Weed V. Panama R. Co., 17 N. Y 362; Pittsburgh, etc., R. Co. v. 
 Sheilds, 47 Ohio St. 387; 24 N. E. Rep. 658; McKay v. Irvine, 11 Biss. 
 168; Marion v. Chicago, etc., Ry. Co., 69 la. 428; Birmingham Water 
 Works Co. v.- Hubbard, 85 Ala. 179; 4 So. Rep. 607; Johnson v. Bafber, 
 
 10 111. 425; Harriman v. Railway Co.,45 Ohio St. 11; 32 Am & Eng. R. 
 Cas. 37; Tuller v. Voght, 13 111. 277; Terre Haute & S. R. Co. v. Jackson, 
 81 Ind. 19; Btss v. Chesapeake & O. Ry. Co., 35 W. Va. 492; 14 S. E. Re{>. 
 234. 
 
 But the master is not' liable for a wrong designedly inflicted by the 
 servant, where the act is neither authorized nor ratified by the 
 master. Steele o. Smith, 3 E. D. Smith, 321; Garvey v. Dung, 30 How. 
 Pr. 315; Cox v. Keahey, 38 Ala. 340; Snodgrass v. Bradley, 2 Grant Cas. 
 43 ; Campbell v. Stairt, 2 Murph. 389 ; Delhi v. Ottenville, 14 Lea, 191 ; 
 McCann v. Tielinghast, 140 Mass. 327; Farber v. Mo. Pac. R. Co., 32 Mo. 
 App. 378; Murphy v. Central Park R. Co., 48 N. Y. Superior Ct. 96; 
 Baylis v. Schwalbach Cycle Co., 14 N. Y. S. Rep. 933; Central R. Co. v. 
 Peacock, 69 Md. 257; 14 At. Rep. 709; Mott v. Consumer's Ice Co., 73 
 N. Y. 547; Wallace v.^ Finberg, 46 Texas, 35; Lindsay v. Griffin, 22 Ala. 
 629. 
 
 It is a rule that disobedience by the servant of the master's general 
 orders does not excuse the master from liability for resulting dam- 
 ages. Schmidt ». Adams, 18 Mo. App. 432; Powell v. Deveney, 3 Cush. 
 300; Philadelphia, etc., R. R. Co. v. Derby, 14 How. 468; Atchison, etc., R. 
 Co. ». Randall, 14 Kan. 421; Duggins „. Watson, 15 Ark. 118; Toledo, 
 etc. Ry. Co. v. Harman, 47 111. 298; Southwick v. Estes, 7 Cush. 386; 
 Garretzen v. Duenokel, 60 Mo. 104; 11 Am. Rep. 405; Robinson ». Webb, 
 
 11 Bush, 482; French v. Creswell, 13 Oreg. 418; 11 Pac. Rep. 62; 
 Keedy ». Howe, 72 111. 136. 
 
 But there are cases holding the contrary, where the master's orders 
 are specific. Haack v. Fearing, 5 Robt. 528 ; Oxford v. Peter, 28 111. 
 434; Delhi V. Ottenville, 14 Lea, 191; Wood b. Detroit St. Ry., 52 Mich. 
 402; Attawey v. CartersvUle, 68 Ga. 740; Wright v. Wilcox, 19 Wend. 
 343; Andrews v. Green, 62 N. H. 436. 
 
WILFUL TRESPASSES FOR MASTER'S PURPOSES. Ill 
 
 less than in other cases, although the servant's conduct is 
 of a kind actually forbidden by the master. Sometimes it 
 has been said that a master is not liable for the " wilful 
 and malicious" wrong of his servant. If " malicious " 
 means " committed exclusively for the servant's private 
 ends," or "malice" means "private spite" {I), 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 Limpus 
 v. London General Omnibus Company (m), where the de- 
 fendant company's driver had obstructed the plaintiff's 
 omnibus by pulling across the road in front of it, and 
 caused it to upset. He had printed instructions not to 
 race with or obstruct other omnibuses. Martin^B. directed 
 the jury, in effect, that if the driver acted in the way of 
 his employment and in the supposed interest of his 
 employers as against a rival in their business, the em- 
 ployers 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 (n) 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 roald. 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" (o). 
 
 (Z)- See per Blackburn J., 1 H. & 0. (») Williams, Crompton, WlUes, 
 
 543. Byles, Blackburn JJ., diss. Wight- 
 Cm) 1 H. & O. 526, 32 L. J.' Ex. 34 (1862). man, J. 
 
 This and Seynumr v. Greeiawood (above) (o) Willes J. 1 H. & C. at p. 539. 
 
 overrule anything to the contrary in 
 
 M'Manus v. Cricleett, 1 East, lOS. 
 
112 PERSONS AFFECTED BT TORTS. 
 
 Fraud of Agent or Servant, 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 pur- 
 poses, was established with more difficulty; for it seemed 
 harsh to impute deceit to a man personally innocent of it, 
 or (as in the decisive cases) to a corporation, which, not 
 being a natural person, is incapable of personal wrong- 
 doing (p). 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 be on the same 
 footing as any other wrong {q). 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 
 
 (pi This particular difficulty is fal- natural persons who are its agents. Cp. 
 
 lacious. It, is in truth neither more nor British Mutual Banking Co. v. Chdm- 
 
 less easy to think of a corporation as wood Forest R. Co. (1S87), 18 Q. B. Dlv. 
 
 deceiving (or being deceived) than as 7U, 66 L. J. Q. B. 449. 
 having a consenting mind. In no case (g) It makes no difference it the fraud 
 
 can a corporation be invested with includes a forgery: Shaw v. Port Philip 
 
 either rights or duties except throngli Gold Mining Co. (1884), 13 Q. B. D. 103. 
 
 Fraud Of agent or servant. Supporting the statement in the text vide, 
 Moir V. Hopkins, 16 111. 315; Frankfort Bank v. Johnson, 24 Me. 491; 
 Calvin v. Holbrook, 2 N. Y. 126; McKay v. Irwine, 11 Biss. 168; McDon- 
 gald V. Bellamy, 18 Ga. 411; Adams v. Cole, 1 Daly, 147; Leavitt v. Sizar, 
 35 Neb. 80; 62 N. W. Kep. 832; Locke v. Stearns, 1 Mete. 660; Johnson 
 V. Barber, 10 111. 425; Armstrong v. Cooley, Id. 509; Sanford v. Handy, 
 28 Wend. 259; Lynch v. Mercantile Trust Co., 18 Fed. Rep. 486; Rey- 
 nolds V. Witte, 13 S. C. 5; 36 Am. Rep. 678; Mundorff v. Wickersham 
 63 Pa. St. 87; Upton v. Tribilcock, 91 U. S. 45; Taggs v. Tenn. Nat! 
 Bank, 9 Heisk, 479; Crans v. Hunter, 28 N. Y. 389; Brokaw ». N. J. R. 
 Co., 32 N. J. L. 328; Rhoda v. Annis; 75 Me. 17; 46 Am. Rep. 854; .Con- 
 cord Bank v. Gregg, 14 N. H. 331; Eilenbprger c.Prot. Mut. F. Ins. Co., 
 89 Pa. St. 464; Wilson v. Peverly, 2 N. H. 584; Galena R. Co. ■». Rae, 18 
 111. 488; 68 Am. Dec. 574; Vance v. Erie R. Co., 32 N. J. L. 834. 
 
FRAUD OF SERVANT. 113 
 
 master's business, and for his master's benefit, no sensible 
 distinction can be drawn between the case of fraud und 
 the case of any other wrong " (r). 
 
 This has been more than once fully approved in the 
 Privy Council (s), and may now be taken, notwithstanding 
 certain appearances of conflict (i), to have the approval of 
 the House of Lords also'(M). 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 (x). 
 
 But conversely a false and fraudulent statement of a 
 servant made for ends of bis own, though in answer to a 
 question of a kind he was authorized to answer on his 
 master's behalf, will not render the master liable In an 
 action for deceit (y). ' 
 
 The leading case of Mersey Docks Trustees v. Gibbs (s) 
 may also be referred to in this connexion, as illustrating 
 the general principles according to which liabilities are 
 imposed on corporations and public bodies. 
 
 (r) (1867) Ii. B. 2 Bx. at p. 265. deceit, U at all, solely in that he is liable 
 
 (a) Maclcayi!. Commercial Banhof Neio as a shareholder to contribnte to the 
 
 BruTiximck C1874),L. B. 6 P. 0. 412, 43 L. J. company's debts : this liability being of 
 
 P. 0. 31; Swire v. Francia (1877), 3 App. the essence of a shareholder's position, 
 
 Ca. 106, 47 L. J. P.O. 18. claiming compensation from the com- 
 
 (<) Addie v. Western Bamk of Scotland pany for it involves him In a new liabll- 
 
 (1867), L. K. 1 So. & D. 145, dicta at pp. ity to contribute to that compensation 
 
 158,166,167. • itself, which is an absurd olrcaity. But 
 
 («) Houldsworth v. City of Glasgow if his liability as a shareholder has 
 
 ion* (1880), 5 App. Ca. 317. ceased, he is no longer damnified. 
 
 (a) lb.. Lord Selborne at p. 326, Therefore restitution only (by rescission 
 
 Lord Hatherley at p. 331; Lord Black- of his contract), not compensation, is 
 
 bum's langnage at p. 339 is more the shareholder's remedy as against the 
 
 cantions, perhaps for the very reason company: though the fraudulent agent 
 
 that he was a party to the decision of remains personally liable. 
 
 Barwlch v. English Joint Stock Bank. iy) British Mutual Banking Co. v. 
 
 Shortly, the shareholder is in this di- Oiarwood Poreit B. Co. (1887), 18 Q. B. 
 
 lemma: irtille he is a member of the Dlv. 714,56L. J. Q. B. 449. 
 
 company, he is damnified by the alleged («) L. E. 1 H. L. 93 (1864-6). 
 
 8 
 
114 PERSONS AFFECTED BY TORTS. 
 
 Liability of firm for fraud of a partner. There is 
 abundant authority in partnership law to show that a firm 
 is answerable for fraudulent misappropriation of funds, 
 and the like, committed by one of the 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, agreeably to the principles above 
 stated, the firm is not liable if the transaction undertaken 
 by the defaulting partner is outside the course of partner- 
 ship business. Where, for example, one of a firm of 
 solicitors receives money to be placed in a specified invest- 
 ment, the firm must answer for his application of it, but 
 not, as a rule, if he receives it with general instructions to 
 invest it for the client at his own discretion (a). Again, 
 the firm is not liable if the facts show that exclusive credit 
 was given to the actual wrongdoer (6). In all these cases 
 
 (a) Partnership Act, 1890, es. 10—12. (B) Ex parte Eyre, 1 Ph. 2Z7. See 
 
 Op. Blair v. Bromley, 2 Ph. 354, and more illustrations in my " Digest of the 
 (Heather v. Twlsden (1SS3),24 Oh. D. 731, Law of Partnership," 5th ed. pp. 43 — 
 with Harman v. Johnson,, 2 E. & B. 61, 22 46. 
 L. J. Q. B. 297. 
 
 Liability of firm lor fraud of a partner. The rule as to liability of a 
 firm for the torts of a partner, as stated and limited in the text, holds 
 true ill America. The Arm's liability has been said to be based upon the 
 priaciple, that as every member Is responsible for the tortious acts com- 
 mitted by an agent of the firm in matters connected with the business so 
 when a partner acts in the same capacity he, in like manner, binds the firm. 
 Hall V. Younts, 87 N. C. 285. See Lockwood v. Bartlett, 130 N. Y. 340; 7 
 N. y.S. Eep.481; 29 N. E. Rep. 257; Rocky Mbuntain Nat. Bank?;. McCas- 
 kill, 15 Col. 408; 20 Pac. Rep. 821; Warner v. Winters, 38 111. App. 149; 
 Stanhope v. Swafford, 80 la. 45; 45 iif. W. Rep. 403; Balcly v. Bracken- 
 ridge, 39 La. An. 660; Fletcher v. Ingram, 46 Wis. 191; Helm v. 
 McCangham, 32 Miss. 17; 56 Am. Dec. 589; Chapman v. Bostwick, 18 
 Wend. 174; 31 Am. Dec. 376; Tucker v. Cole, 64 Wis. 540; Morehead ». 
 Gilmore, 77 Pa. St. 118; 18 Am. Rep. 435; Myers v. Gilbert, 18 Ala. 467; 
 . Wltcher ii. Brewer, 49 Ala. 119 ; Doreraus v. McCormlck, 7 GUI. 49 ; Pierce 
 V. Wood, 23 N. H. 519; Church v. Sparrow, 5 Wend. 223; Chester v. 
 Dickinson, 52 Barb. 349; Wolf v. Mills, 56 111. 360. But a firm Is not 
 liable for the act of a partner outside the general course of the business. 
 Brent v. Davis, 9 Md. 217; Selden v. Bank of Commerce, 3 Minn. 166; 
 Newman v. Richardson, 4 Woods, 81. 
 
MASTER, WHEN LIABLE TO SERVANT. 115 
 
 the wrong is evidently wilful. In all or most of them, 
 however, 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 
 professing to act on behalf of the firm, misapplies funds or 
 securities merely for his own separate gain. The reasons 
 given are not always free from admixture of the Protean 
 doctrine of " making representations^good," which is now, 
 I venture to think, exploded (c). , 
 
 lu juries to servants by fault of fellow-servants. 3. 
 
 There remains to be considered the modification of a 
 master's liability for the wrongful act, neglect, or default 
 of his servant when the person injured is himself in and 
 about the same master's service. It is a topic far from 
 clear in principle ; the Employers' Liability Act, 1880, 
 has obscurely indicated a sort of counter principle, and 
 introduced a number of minute and empirical exceptions, 
 or rather limitations of the exceptional rule in question. 
 
 Common law rule of master's immunity. That rule, as 
 it stood before the Act of 1880, is that a master is not 
 liable to his servant for injury received from any ordinary 
 risk of or incident to the service, including acts or defaults 
 of any other person employed in the same service. Our 
 law can show no more curious instance of a rapid modern 
 development. The first evidence of any such rule is in 
 Priestley v. Fowler (d), decided in 1837, which proceeds 
 on the theory (if on any definite theory) that the master 
 " cannot 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 watch- 
 
 (c) I have discussed it in Appendix (d) SM.&W. 1. All- the case actually 
 
 K. to " Principles ol Contract," 5th ed. decided was that a master does not 
 
 p. 707. See now Maddison v. Alderson warrant to his servant the sufBcienoy 
 
 (1883), 8 App. Oa. at p. 473, 51 L. J. Q. and safety of a carriage in which he 
 
 B. 737. sends him out. 
 
il6 PERSONS AFFECTED BY TORTS. 
 
 ing and cotitrolling tli* conduct of his fellow-servants; 
 iind ttiat a contrary doictriiie would lead to intolerable 
 ibcoaVenienoe, and eacoura^ servants to be negligent. Ac- 
 cording to tbis there would be a sort of presumption \ha.t 
 the servant suffered to some e^ent by want of diligence on 
 his own part. But it is needless to pursue this reasoning ; 
 for the like result was a few years afterwards arrived at by 
 Chief Justice Shaw o;f Massachusetts by another way, and 
 ill a judgment which is the fountain-head of all the later 
 decisions (e). 
 
 Reason given in the later cases. The accepted doc- 
 trine is to this effect. Strangers can hold the master 
 'liable for the negligence of a servant about his business. 
 -But in the case where the person injured is himself a ser- 
 vant in the same business he is not in the same position as 
 a, stranger. He has of his free will entered into the busi- 
 ness and made it his own. He cannot Say to the master, 
 
 (e) Farwell v. Boston and Worcester Railroad Corporation, 4 Met. 49. 
 
 Injuries to servants by fault of fellow- servants. In those States of 
 the Union whei'e' the coininon law is unaffected by special legislation on 
 ftiis "Subject, the rule and reasons stated in the text are ■ generally 
 accepted. Thus, tn the case Of Cooper v. Mnllins (30 Ga. 151) the court 
 said : " The reason of the exception is to make each employe a help to 
 the carefulness of the rest, and where that tibiett cadnot be accom- 
 plished the exception Ought to b^ase, * * * ." 
 
 In Chicago & Alton R. Co. v. Murphy (58 111. 389) it is said by the 
 court: "When the ordinary duties and -occupations of the servants of a 
 common master are such that one is necessarily exposed to hazard by 
 the carelessness of another, they must be supposed to have vokintarily 
 taken the risks of such possible carelessness when they entered the 
 service, and must be regarded as fellow servants, within the meaning 
 of this rule." S. P., Murray v. South Carolina R. Co., 1 McMuU. 385; 
 Lalor V. Chicago, etc., R. Co. 52 111. 401; Sasklns v. N. N. & H. R. R. 
 Co., 65 Barb. 129; affirmed, 56 N. Y. 608. 
 
 sustaining the exception to the master's liability are numerous cases; 
 a few are Renfro v. Chicago, etc., R. Co., 86 Mo. 302; Benn «. ^ull, 65 
 la. 407; Luce v. Chicago, etc., R. Co., 67 la. 75; Beaulieu v. Portland Co., 
 48 Me. 291; McDermott v. Pacific R. Co., 30 Mo. 115; Henderson v. New 
 
MASTEE, WHEN LIABLE TO SERVANT. 117 
 
 You shall SQ conduct your business as not to injure me by 
 want of due care and eaiftion therein. For he has agreed 
 with the master to serve in that business, and his claims on 
 the master depend ou the contract of service. Why should 
 it be an implied term of that oonti'act, not being an express 
 one, that the master shall indemnify him against the 
 negligence of a f ellowrservant, 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 pstyment. 
 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 Scotland to make the Jurisprudence pf 
 the two countries uniform (/"). 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 ordinary risks of the service,' including the rijjk of 
 
 {/) See WiUon v. Merry (1868), L. B. 1 So. & D. 326. 
 
 Jersey, etc., R. Co., 7 Rpbt. 611; Ponton v. Wilmlngtpn, etc., E. Co., 6 
 Jones L. 245; Illinois, etc., R. Co. v. Cox, 21 111. 20; Hougli v. Railroad 
 Co., 100 U. S. 213; Sullivan v. Mississippi E. Co., 11 la. 431; Cald^^l] v. 
 grown, 53 Pa. St. 453; McDonald ». Hazeltine, S3 Cfll. 35; Waljier v. 
 Boiling, 22 Ala. 294; Homer v. Illinois, etc., R, Co., 15 111. 550; Carle v. 
 Bangor, etc., R. Co., 43 Me. 269; Mosley v. Cbamberlain, 18 Wis. 700; 
 Felch V. Allen, 98 Mass. 572; Benzing ». Steinway, 101 N. Y. 547; 5 N. 
 E. Rep. 449 ; JHefferen v. Northern P. R. Co., 45 Minn. 471 ; 48 N. W. Rep. 1 ; 
 Webber v. Piper, 109 N. Y. 496; 17 N. E. Rep. 216; Pantzar w. Tilly Fos- 
 ter Mln. Co., 99 N. Y. 368; 2 N. E. Rep.24; Rogers '». Manufacturing Co., 
 144 Mass. 198; UN. E. Rep. 77; Stringham v. Hilton, 111 N. Y. 186; 
 18 N. E. Rep. 870; Buzzell v. Manufacturing Co., 48 Me. 113; Tuttle v. 
 Railway, 122 U. S. 189; 7 Sup. Ct. Rep. 1166; Hayden v. Manufacturing 
 Co., 29 Conn. 548; Yeaton v. Railroad. Corp., 135 Ma,ss. 418; Memphis 
 R. Co. V. Thomas, 51 Mass. 637; Hasty v. Sears, 157 Mass. 123; 31 N. E. 
 Rep. 759; Fitzgerald v. Honkomp, 44 111. App. 365. 
 
118 PERSONS AFFECTED BY TORTS. 
 
 negligence upon the part of a fellow-servant when he is 
 acting in the discharge of his duty as servant of him who is 
 the common master of both " (g). 
 
 The servants need not he about the same kind of work. 
 
 The phrase "common employment" is frequent in this 
 . class of cases. But it is misleading in that it su"ggests a 
 limitation of the rule to circumstances where the injured 
 servant had in fact some opportunity of observing and 
 guarding against the conduct of the negligent one ; a 
 limitation rejected by the Massachusetts Court inFarwell's 
 case, where an engine-driver was injured by the negligence 
 of a switchman (pointsman as we say on English railways) 
 in the same company's service, and afterwards constantly 
 rejected by the English Courts. 
 
 " When the object to be accomplished is one and the 
 same, when the employers are the same, and the several , 
 persons employed derive their authority and their compen- 
 sation from the same source, it would be extremely dif- 
 ficult 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 different 
 departments.' In a blacksmith's shop, persons working in 
 the same building, at different fires, may be quite indepen- 
 . dent of each other, though only a few feet distant. In a 
 ropewalk several may be at work on the same piece of 
 cordage, at the same time, at many hundred feet distant 
 from each other, and beyond, the' reach of sight or voice, 
 and yet acting together. 
 
 "Besides, it appears to us that the argument rests upon 
 
 (g) Erie O.J. in Tunney v. Midland It. Lovell v. Howell (1876), 1 p. P. D. at p. 
 Co. (1866), L. K. 1 0. P. at p. 296; Archi- 167, 45 L. J. C. P. 387. 
 bald J., used very similar language in 
 
" COMMON EMPLOYMENT." 119 
 
 an assumed principle of responsibility which does not exist. 
 The master, in the case supposed, is not exempt from lia- 
 bility because the servant has better means of providing for 
 his safety when he is employed 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 negli- 
 gence of his servant, because the person suffering does not 
 stand towards him in the relation of a stranger, but is 
 one whose rights are regulated by contract, express or 
 implied " (h). 
 
 Provided there Is a general common object. So it has 
 
 been said tliat " we must not over-refine, but look at the 
 common object, and not at the common immediate 
 object " («■). All persons engaged under the same em- 
 
 (A) Shaw C. J., Farwell v. Boston, cfc. at the widely different resnlt of holding 
 
 Corporation, i Met. 49. AI. Sainctelette the master boand, as an implied terra 
 
 of Brussels, and M. Sauzet of Lyons, of the contract, to insure the servant 
 
 whom he quotes iop. cit, p. UO), differ against all accidents in the course of the 
 
 from the current view among French- service, and not due to the servant's own 
 
 speaking lawyers, and agree with Shaw fault or vis major. 
 
 C. J. and our Courts, in referring the (») Pollock O. B., Morgan v. Fale of 
 
 whole matter to the contract between Neath B. Co. (1865), Ex. Ch. L. K. 1 Q. B. 
 
 the master and servant; but they arrive 149, 155, 85 L. J. Q. B, 23. 
 
 The servants need not be about the same kind of work : provided 
 there is a general common object. Subject to the limitation speciflert 
 under the next heading the doctrine announced in the text is uniformly 
 accepted in America where many of the courts have broadly stated 
 similar rules. It is practicable only to refer to a few of the late cases, 
 an examination of which will illustrate the meaning of the foregoing 
 propositions of law as applied to special statements of facts. 
 
 In the following cases the persons injured and the one injuring were 
 held to be fellow-servants and the master not liable. Haley v. Keim, 151 
 Pa. St. 117; 25 At. Eep. 98; 31 "W. N. C. 18; Texas & P. R. Co. ■». Har- 
 rington, 62 Tex. 597; 21 Am. & Eng. R. Cas. 571; Van Den Heuvel v. 
 National Furnace Co., 84 Wis. 636 ; 54 N. W. Rep. 1016 ; Indianapolis, etc. , 
 R. Cas. Co. ■». Morgenstein, 106 111. 216; 12 Am &Eng. R. R. Cas. 228 ; Holr 
 den V. Fitchburg R. Co., 129 Mass. 268; 2 Am. & Eng. R. Cas. 94; 
 Malone v. Hathaway, 64 N. Y. 5;'' McBride v. Indianapolis Frog & Switch 
 
120 PEKSO>"S AFFECTED BY TORTS. 
 
 ployer for the purposes of the same business, however 
 different in detail those purposes may be, are fellow- 
 Co. (Ind. App.), 32 N. E. Rep. 579; Roux v. Blodgett & Davis Lbr. Co., 
 94 Mich. 607 ; 64 N. W. Rep. 492 ; Baltimore & O. R. Co. o. Baugh, 149 U. 
 S. 368; 13 S. Ct. Rep. 914; Hughes v. Fagin, 46 Mo. App. 37; Coal Creek 
 M. Co. V. Davis, 90 Tenn. 711; 18 S. W. Rep. 387; Snyder v. Viola 
 Mining & S. Co., 2 Idaho, 771 ; 26 Pac. Rep. 127 ; Bergstron v. Staples, 82 
 Mich. 654; 46 N. W.Rep. 1035; Ocean Steamship Co. v. Cheyney, 86 6a. 
 278; 12 S. E. Rep. 351; Fraser v. Red River Lbr. Co., 45 Minn. 235; 47 N. 
 W. Rep. 785; Butler v. Townseud, 126 N. Y. 105; 26 N. E. Rep. 1017; 
 Gnmsley o. Hankina, 46 Fed. Rep. 400; Kehoe v. Allen, 92 Mich. 464; 52 
 N. W. Rep. 740; Thyng b. Fitchburg R. Co., 156 Mass. 13; 30 N. E. Rep. 
 169; Baltimore & O. R. Co. v. Andrews, 50 Fed. Rep. 728; 1 C. C. A. Rep. 
 636; Cincinnati, etc., R. Co. v. Mealer, 50 Fed. Rep. 725; 1 C. C. A. Rep. 
 633; Dwyero. Hickler, 16 N. Y. S. Rep. 814; McDonald B. New York, etc., 
 R. Co., 63 Hun, 587; 18 N. Y. S. Rep. 609; Spencers. Ohio& M. R. Co., 130 
 Ind. 181; 29 N. B. Rep. 915; International & G. N. R. Co. v. Ryan, 82 Tex. 
 565; 18 S. W. Rep. 219; Corona c. Galveston, etc.R. Co. (Tex.), 17 S. W. 
 Rep. 384; Parrish v. Pensacola & A. R. Co., 28 Fla. 251 ; 9 So. Rep. 696; 
 Lasky v. Canadian P. R. Co., 83 Me. 461; 22 At. Rep. 307; Miller v. 
 Southern P. R. Co., 20 Oreg. 285 ; 26 Pac. Rep. 70 ; Bier v. JefEersonville M. 
 & I. R. Co., 138 Ind. 78; 31 N. E. Rep. 471; Warmington v. Atchison, etc., 
 R. Co., 46 Mo. App. 159; Kerlin v. Chicago, etc., R. Co., 50 Fed. Rep. 185; 
 Mele V. Delaware & H. C. Co., 14 N. Y. S. Rep. 630; Knathla v. Oregon, 
 etc., R. Co., 21 Oreg. 136; 27 Pac. Rep. 91; Ohio & M. B. Co. v. Robb, 36 
 111. App. 627; McKay v. Northern P. R. Co., 42 Fed. Rep, 288; Abend v. 
 Terre Haute & I. B. Co., 11 111. 202; Kilroy v. Delaware & H. C. Co., 121 
 N. Y. 22; 24 N. E. Rep. 192; Adams v. Iron Cliffs Co., 78 Mich. 271; 44 
 N. W. Rep. 270; Hoar v. Merritt, 62 Mich. 386 ; 29 N. W. Rep. 15; Julbec 
 S. S. Co. V. Merchant, 133 U. S. 375; 10 S. Ct. Rep. 397; Bergquist?;. 
 City of Minneapolis, 42 Minn. 471; 44 N. W. Rep. 530; Niantic C. & M. 
 Co. V. Leonhard, 25 111. App. 95; affirmed 126 111. 216; 19 N. E. Rep. 294; 
 St. Lonis, A. & T. R. Co. v. Welch, 72 Tex. 298; 10 S. W. Rep. 529; 
 Fagundes v. Central P. R. Co., 79 Cal. 97; 21 Pac. Rep. 437; Carr». North 
 River Const. Co., 48 Hun, 266; Stringham v. Stewart, 11 N. Y. 188; 18 N. 
 B. Rep. 870; Blazinski v. Perkins, 77 Wis. 9; 45 N. W. Rep. 547; McCoy 
 ■». Empire Warehouse Co., 10 N. Y. S.Bep. 99; Hankins ^;. New Yorki 
 etc., B. Co., 55 Hun, 51 ; 8 N. Y. S. Rep. 272 ; McMasters v. Illinois Central 
 R. Co., 65 Miss. 264; 4 So. Rep. 59; Byrnes v. New York, etc., B. Co., 113 
 N. Y. 251; 21 N. E. Rep. 50; Evans v. Lippincott, 47 N. J. L. 192; 34 
 Am. Rep. 148. 
 
 In the following cases it was held, that the master vras by the rule 
 excepted from liability. Jacques v. Great Falls Mfg. Co., {N. H.) 22 At. 
 Rep. 552; Evans v. Carbon Hill Coal Co., 47 Fed. Rep. 437; Marshall v. 
 Herman, 47 Minn. 537; 50 N. W. Rep. 611; Sadowski v. Michigan Car 
 
" COMMON EMPLOYMENT." 121 
 
 servants in a common employment within the meaning of 
 this rule: for example, a carpenter doing work on the^roof 
 of an engine-shed and porters moving an engine on a turn- 
 table (y). "Where there is one common general object, 
 in attaining which a servant is exposed to risk, he is not 
 entitled to sue the master if he is injured by the negligence 
 of another servant whilst engaged in furthering the same 
 object " (k). 
 
 Relative rank of the servants immaterial. It makes 
 no difference if the servant by whose negligence another is 
 
 (j) See last note, (ft) Theslger L. J., Cftorics v. To3;Jor(187S),3C. P.DiT.492,498. 
 
 Co., 84 Mich. 100; 47 N. W. Kep. 498; Daniel v. Chesapeake & O. E. Co., 
 36 "W. Va. 397; 15 S. E. Rep. 162; Noonan v. New York etc. K. Co., 131 
 N. York. 594; 62 Hnn. 618; 16 N. Y. S. Rep. 678; 30 N. B. Rep. 67; 
 Gross V. Pennsylvania P. & B. R. Co., 62 Huti. 619; 16 N. Y. S. Rep. 
 616; Miller v. Missouri P. R. Co., 109 Mo. 350; 19 S. W. Rep. 58; Colum- 
 bus & T. R. Co. V. O'Brien, 4 Ohio Cir. Ct. Rep. 5TS; North Chicago R. 
 M. Co. o. Johnson, 114 111. 57; 29 N. E. Rep. 186; Dixon v. Chicago & A. 
 R. Co., 109 Mo. 413; 19 S. W. Rep. 413; Tudor Iron Works v. Weber, 31 
 111. App. 306; affirmed 129 111. 535; 21 N. E. Rep. 1078; Ohio & M. R. Co. 
 V. Pearey, 128 Ind. 197; 27 N. E. Rep. 479; Pool v. Southern P. R. Co., 7 
 Utah 303; 26 Pac. Rep. 654; Webb v. Denver & R. G. R. Co., 7 Utah, 
 363; 26 Pac. Rep. 981; St. Louis & S. F. R. Co. v. Weaver, 35 Kan. 412; 
 11 Pac. Rep. 408; Hobson v. New Mexico & A. R. Co., (Ariz.) 11 Pac. 
 Rep. 545; Louisville & N. R. Co. v. Sheets, (Ky.) 13 S. W. Rep. 248; 
 Morton v. Detroit etc. R. Co., 81 Mich 423; 46 N. W. Rep. Ill; Daniels 
 V. Union P. E. Co., 6 Utah 357; 2.S Pac. Rep. 762; Cincinnati, H. & D. R. 
 Co. V. McMullen, 117 Ind. 439; 20 N. E. Rep. 287, Ragsdale v. Northern 
 P. R. Co., 42 Fed. Rep. 383 ;Sanfordo. Standard Oil Co., 118 N. T. 571; 24 
 N. E. Rep. 313; Evans v. American Iron & Tube Co., 42 Fed. Rep. 519; 
 Harvard v. Delaware & H. C. Co., 40 Fed. Rep. 195; Sullivan & Missouri 
 P. R. Co., 97 Mo. 113; 10 S. W. Rep. 862; Northern P. R. Co. v. O'Brien, 
 1 Wash. St. 599; 21 Pac. Rep. 32; Pike v. Chicago & A. R. Co., 41 Fed. 
 Rep. 95; Central Trust Co. v. Wabash, St. L. & P. R. Co., 34 Fed. Rep. 
 616; Hall v. Galveston, etc. R. Co., 39 Fed. Rep. 18; Sullivan v. Tioga R. 
 Co., 112 N. Y. 643; 20 N. E. Rep. 569; Kelley v. Brie Tel. & T. Co., 34 
 Minn. 321; James v. Emmet MinningCo., 55 Mich. 335. 
 
 Relative rank of the servants Immaterial. This general proposition 
 is sustained by numerous authorities, vide Brick v. Rochester, etc., R. 
 Co., 98 N. Y. 611; 21 Am. & Eng. R. Cas. 605; Zeigler v. Day, 123 Mass. 
 
122 PERSONS AFFECTED BY TOETS. 
 
 injured is a foreman, manager, or other superior in the 
 same employment, whose orders the other was by the 
 terms of his service bound to obey. The foreman oi man- 
 
 152; Richmond & D. K. Co. v. Jones, 92 Ala. 218; 9 So. Rep. 276; Mc- 
 Gintyv. Athol Reservoir Co., 155 Mass. 183; 29 N. E. Kep. 510; O'Brien 
 V. American Dredging Co., 63 N. J.L. 291; 21 At. Rep. 324; Dube v. City 
 of Luviston, 83 Me. 211; 22 At. Rep. 112; Jenkins v. Maliopac Iron Ore 
 Co., 10 N. Y. S. Rep. 484; Sayward v. Carlson, 1 Wash St. 29; 23 Pac. 
 Rep. 830; Kenny v. Cnnard S. S. Co., 55 N. Y. Superior Ct. 558; Kinney 
 V. CorbiD, 132 Pa. St. 341; 19 At. Rep. 141; Lagrone v. Mobile & O. R. 
 Co., 67 Miss. 592; 7 So. Rep. 432; Duffy v. Oliver, 131 Pa. St. 203; 18 
 At. Rep. 872; Yates v. McCnlloch Iron Co., 69 Md. 370; 16 At. Rep. 280; 
 Rogers L. & M. Works v. Hand, 50 N. J. L. 464: 14 At. Rep. 766; Galves- 
 ton etc. R. Co. V. Farmer, 73 Tex. 637; 11 S. W. Rep. 156; Louisville & N. 
 ' R. Co. V. Martin, 87 Tenn. 398 ; 10 S. W. Rep. 772 ; McBride v. Union P. 
 R. Co., 3 Wyo. 247; 21 Pac. Rep. 687; Wilson v. Dumreath etc. Co., 77 la. 
 429; 42 N. W. Eep. 360; Conley ». Portland, 78 Mel 217; Loughlin v. 
 State, 105 N. Y. 159; Willis v. Oregon R. & N. Co. 11 Oreg. 257; Reese v. 
 Biddle, 112 Pa. St. 72; Waddell, v. Simonson, 112 Pa. St. 567; Kirk «. 
 Atlanta & C. A. R. Co., 94 N. C. 625; 55 Am. Rep. 621; Chicago & E. I. R. 
 V. Geary, 110 111. 383; Lincoln Coal M. Co. v. McNaUy, 15 111. App. 181; 
 Matthews v. Case, 61 Wis. 49; 50 Am. Rep. 151; Peschel v. Chicago etc. 
 R. Co., 62 Wis. 338; Fraker v. St. Paul etc. R. Co., 32 Minn, 54; Doughty 
 V. Penobscot Log Driving Co., 76 Md. 143; Scott v. Sweeny, 34 Hun, 292; 
 Heine v. Chicago & N. W. R. Co., 58 Wis. 525; Olson v. Clyde, 32 Hun, 425^ 
 Yager v. Atlantic etc. R. Co., 44 Hughes, 192; Flynn v. Salem, 134 Mass. 
 351 ; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246 ; 42 Am. Rep. 543 ; 
 Thompson v. Chicago etc. R. Co., 18 Fed. Rep. 239; Peterson v. White- 
 breast C. & M. Co., 50 la. 673; Lehigh Valley Co. v. Jones, 86 Pa. St. 
 432; Hofnagle v. New York, C. & H. R. R. Co., 55 N. Y. 608; Shank v. 
 Northern etc. R, Co., 25 Md. 462; O'Connell v. Baltimore etc. R. Co., 20 
 Md. 212; McLean v. Blue Point Min. G. Co., 51 Cal. 255; Johnson v. 
 Netherland, A. S. N. Co., 132 N. Y. 576; 30 N. E. Rep. 506; affirming 10 
 N. Y. S. Rep. 927; Hart v. New York F. D. C. Co., 48 N. Y. Superior Ct. 
 460; McDonald v. Eagle & Phoenix Mfg. Co., 67 Ga. 761; 68 Ga. 839; 
 Hoth v. Peters, 66 Wis. 406; Lawler v. Androscoggin R. Co., 62 Me. 463 
 Vice-Principal. The rule just stated is declared by the courts of several 
 of the States to be subject to a limitation, in what is called the doctrine 
 of vice-principal. " At common law, whatever the master. delegates to 
 any officer, servant, agent, or employe, high or low, the performance of 
 any of the duties * * * which really devolves upon the master him- 
 self, then such officer, servant, agent or employe stands in the place of 
 the master and becomes a substitute for the master, a vice-principal, and 
 the master is liable for his acts or his negligence to the same extent as 
 
" CO^MOX EMPLOYMENT." 123 
 
 ager is only a servant having greater authority ; foremen 
 and workmens of whatever rank, and however authority 
 and duty may be distributed among them, ai-e " all links in 
 
 though the master himself had performed the acts or was guilty of 
 negligence." 
 
 Atchison etc. R. Co. v. Moore, 29 Kan. 644; 11 Am. & Eng. R. Cas. 
 244; S. P., Zintek v. Stimson Mill Co., (Wash. St.) 32 Pao. Rep. 997; 
 Palmer v. Mich. Cent. R. 6o., 93 Mich. 363; 53 N. W. Rep. 897; MuUan 
 V. Phila. & S. M. S. S. Co., 78 Pa. St. 26; Stockmeyer v. Reed, 55 Fed. 
 Rep. 263; Bloyd v. St. L6uis & S. F. Ry. Co., (Ark.) 22 S. W. Rep, 1089. 
 
 Upon the soundness of the doctrine of vice-principal the courts of the 
 United States are nearly equally divided. Supporting the doctrine see 
 the cases last above cited and Kansas City, M. & B. R. Co. v. Burton, 
 (Ala.) 12 So. Rep. 88; Missouri P. Ry. Co. v. Sasse, (Tex. Civ. App.) 22 
 S. W. Rep. 187; Daybarsh v. Hannibal & St. J. R. Co., 103 Mo. 570; 15 
 S. W. Rep. 554; Nail v. Louisville, etc. R. Co., 129 Ind. 260; 28 N. E. 
 Rep. 123; Cullen v. Norton, 126 N. Y. 1 ; 26 N. E. Rep. 905; reversing 9 
 N. Y. S. Rep. 174; Colorado M. R. Co. v. O'Brien, 16 Colo. 219; 27 Pac. 
 Rep. 701; Fink v. Des Moines Ice Co., 84 la. 321 ; 51 N. W. Rep. 155; 
 Kelley v. Ryus, 48 Kan. 120; 29 Pac. Rep. 144 ; Schroeder o. Chicago & 
 A. R. Co., 108 Mo. 322; 18 S. W. Rep. 1094; Andreson v. Ogden, 8Utah, 
 128; 30 Pac. Rep. 305; McEUigott v. Randolph, 61 Conn. 157; 22 At. 
 Rep. 1094; VSToods ». Lindvall, 48 Fed. Rep. 62; 4 U. S. App. 49; 1 C. C. A. 
 Rep. 37; aflBrming 47 Fed. Rep. 195; Wooden u. Western etc. R. Co., 18 
 N. Y. S. Rep. 768; Nix v. Texas & P. R. Co., 82 Tex. 423; 18 S. W. Rep. 
 571; Fisher v. Oregon etc. R. Co., 22 Oreg. 633; 30 Pac. Rep. 425; 
 Sweeney v. Gulf etc. R. Co., 84 Tex. 433; 19 S. W. Rep. 655; Newport 
 News & M. v. R. Co. v. Old Colony R. Co., 153 Mass. 356; 26 N. E. Rep. 
 868; Lyttle v. Chicago &W. M. R. Co., 84 Mich. 289; 47 N. W. Rep. 571; 
 LindvallB. Woods, 44 Fed. Rep. 855; Consolidated Coal Co. w.Wombacher, 
 31 111. App. 288; 134 111. 57; 24 N. E. Rep. 627; Cox u. Syenite Granite 
 Co., 39 Mo. App. 424; Chicago etc. R. Co. v. Ross, 112 U. S. 377; 17 Am. 
 &Eng. R. Cas. 501; Malcolm v. Fuller, 152 Mass. 160; 25 N. E. Rep. 83; 
 Chicago V. Anderson Pressed Brick Co., 34 111. App. 312; Missouri P. R. 
 Co. V. Williams, 75 Tex. 4; 12 S. W. Rep. 835; Coleman v. Wilmingtoa, 
 C. & A. R. Co., 25 S. C. 446; Tay_lor v. Evansville & T. H. R. Co., 121 Ind. 
 124; 22 N. E. Rep. 876; Borgman v. Omaha & St. L. R. Co. 41 Fed. Rep. 
 667; Chicago D. & D. Co. v. McMahon, 30 111. App. 358; Lund v. Hersey 
 L'b'r Co.", 41 Fed. Rep. 202; Boatwright v. Northeastern R. Co., 25 S. C. 
 128; Louisville etc. R. Co. v. Graham, 124 Ind. 89; 24 N. E. Rep. 668; 
 Baldwin v. St. Louis etc. R. Co., 75 la. 547; 39 N. W. Rep. 607; Sioux 
 City & P. R. Co. V. Smith, 22 Neb, 775; 36 N. W. Bep. 285; Carpenter v. 
 Mexican Nat. R. Co., 39 Fed. Rep. 315; Brown v. Sennett, 68 Cal. 225; 
 Missouri P. R. Co. v. Peregoy, 36 Kan. 424; Hussey w. Coger, 39 Hun, 
 
124 PEUSONS AFFECTED BY TOUTS. 
 
 the same chain " (Z). So the captain employed by a ship- 
 owner is a fellow-servant of the crew, and a sailor injured 
 by the captain's negligence has no cause of action against 
 
 (,1) Feltham v. England (1866), Ij.U. 2 which does not mean "fellow-work- 
 
 Q. B. 33, 36 L. J. Q. B. 14 ; Wilson v. Merry man " at all, .was at one tiifle absurdly 
 
 (186S), L. B. 1 Sc. &D. 326: see per Lord introduced Into these cases. It is be- 
 
 Oairns at p. 333, and per Lord Colonsay lieved by Lord Brougham, and occurs as 
 
 at p. 315. The French word coUaborateMr, late as Wilson v. Merry, 
 
 639; St. Louis etc. R. Co. v. Harper, 44 Ark. 531; Chicago etc. B. Co. v. 
 Landstrom, 16 Neb. 261; 19 Am. Bep. 71.8; Brick v. Rochester etc, B. Co. 
 98 N. Y. 211; Miller v. Union P. R. Co. 17 Fed. Rep. 67; Gravelle v. Min- 
 neapolis & St. L. R. Co., 3 McCrary, 362; Ryan v. Bagaley, 50 Mich 179; 
 15 Am. Rep. 38; Dowling v. Allen, 71 Mo. 13; 11 Am. Bep. 298; Mitchell 
 V. Bobinson, 80 Ind. 281; 11 Am, Rep. 812; Gormly v. Vulcan Iron 
 Works, 61 Mo. 192; Berea Stone Co. v. Kralt, 31 Ohio St. 287. 
 
 Different departments. Another proposed limitation of the general 
 ruleis that having its origin in the tact that In the operation of the large 
 industrial enterprises of this country it has been found necessary to di- 
 vide the labor into separate departments, and where this is the case the 
 servants of one department are not the fellow-servants of those of an- 
 other department. This doctriae 13 accepted by only a few of the courts. 
 See Colorado M. B. Co. v. Naylon, 17 Colo. 501; 30 Pac. Bep. 219; 
 Cooper ». Mullins, 30 Ga. 150; Chicago etc. E. Co. v. Moranda, 108 111. 
 576; 17 Am. & Eiig. B. Cas. 561; Nashville etc. B. Co. v. Jones, 9 Heisk. 
 .37; Ryan v. Chicago & N. W. R. Co., 60 111. 171; Nashville etc. B. Co. v. 
 Carroll, 6 Heisk. 317. 
 
 And in several cases the doctrine is denied. See Harwell v. Boston & 
 W. R. Co., 1 Mete. 19; Johnson o. City of Boston, 118 Mass. Ill; Texas 
 & P. B. Co. V. Harrington, 62 Tex. 597; 21 Am. & Eng. B. Cas. 571; Kirk 
 V. Atlanta etc. B. Co., 91 N. C. 625; 25 Am. & Eng. B. Cas. 307 5 M«w 
 York etc. R. Co. v. Bell, 112 Pa. St. 100; 28 Am. & Eng. B. E. Cas, 338. 
 Means and resources. The master must make a reasonable effort to 
 furnish suitable machinery and appliances, and keep the same in safe 
 and serviceable condition. Hough v. Texas & P. B. Co., 100 U. S. 213; 
 Northern Pac. B. Co. v. Herbert, 116 U. S. 612 ; 21 Am. & Eng, R. Cas. 
 107; Cunningham v. Union Pac. B. Co., 1 Utah 206; 7 Pac. Bep. 795; 
 Murphy v. Boston & A. B. Co., 88 N. Y. 116; 8 Am. & Eng. B. Gas. 510; 
 Solomon B. Co. v. Jones, SO Kan. 601; 16 Am. & Eng. B. Cas. 201; 
 Moyalhan j>. Hilts Co., 116 Mass. 586; Sioux City, etc. B. Co. v. Finlay- 
 son, 26 Neb. 272; 18 Am. & Eng. R. Cas. 77; Smith v. Oxford Iron Co., 
 12 N. J. L. 167; 36 Am. Bep. 635; Houston, etc. B. Co", v. Marcelles, 69 
 Tex. 331; 12 Am. & Eng. B. Cas. 231; Cowles v. Biclimond, etc. R. Co., 
 81 N. C. 309; 2 Am. & Eng. R. Cas. 90; 37 Am. Rep. 620; Pcnn. Co. «. 
 Lynch, 90 III. 333; Mulvey v. Ehode Island Locomotive "Works, 14 B. I. 
 
"COMMON EMPLOYMENT." 125 
 
 the owner (m). 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 accomplish the workT??), and he is not answerable 
 further (o). 
 
 Cm) HedJey v. Pinkney and Sons' S. S. injury caused by the dangerous con- 
 Co., '92, IQ. B. 58, 61 L,. J. Q.^. 179, C. A. dltion ol a building where he is em- 
 
 (n) According to some decisions, ployed, he must allege distinctly both 
 
 which seem on principle donbtfal, he that the master knew of the danger and 
 
 is bound only not to furnish means or that he, the servant, was Ignorant of it: 
 
 resources which are to his own inowl- G^Jfiths v. London and St. Katharine 
 
 edgedefective: GoZZafl*crv.i»tper(1864), Z>ocAs Co. (1884) , 13 Q. B. Div. 259. Cp. 
 
 16 C. B. N . S. 669, 33 L. J. C. P. 329. And Thomas V. Qaartermaiiie (1887) , IS Q. B. 
 quite lately it has been decided in the Div. 6S5, 56 L. J. Q. B. 340. 
 
 Court of Appeal that where a servant (o) Lord Cairns, as above: to same 
 
 seeks to hold his master liable for effect Lord Wensleydale, Weems v. 
 
 204; Komona Oolitic Stone Co. v. Johoson, (Ind. App.) 33 N. E. Bep. 
 1000; Con.solidated Coal Co. v. Bonner, 43 111. App. 17; Cowan u. Chicago 
 etc. R. Co., 80 Wis. 284; 50 N. "W. Eep. 180; Propsom v. Leathern, 80 
 Wis. 608; 50 M. W. Rep. 586. 
 
 The master must furnish a reasonably safe place for the servant to 
 work. Heckman v. Mackey, 35 Fed. Rep. 353; Hannibal etc. R. Co. v. 
 Fox, 31 Kan. 586; 15 Am & Eng. R. Cas. 825; Hnllehari v. Green Bay etc. 
 R. Co. 68 -Wis. 520; 31 Am. & Eng. E. Cas. 332; Kelly v. Erie Tel. etc. 
 Co. 34 Minn. 321; Green v. Banta, 48 N. Y. Superior Ct. 156; Porter v. 
 Silver Creek & M. G. Co., 84 Wis. 418; 54 N. W. Rep. 1019; Davies v. 
 Griffith, 27 Wkly. Law Bui. 180; Stuber «. McEatee, 19 N. Y. S. Rep. 900- 
 
 Competent servants. Supporting the text, vide Alabama etc. R. Co. 
 ». Waller, 48 Ala. 459; New Orleans etc. R. Co. v. Hughes, 49 Minn. 258; 
 Moss. V. Pacific R. Co., 49 Mo. 167; Chicago etc. R. Co. v. Doyle, 18 Kan. 
 58; Jordan v. Wells, 3 Woods, 527; Blake v. Maine Cent. R. Co., 70 Me. 
 60; Tyson e. South & N. A. R. Co., 61 Ala. 654; Indiana Mfg. Co. v. Mil- 
 lican, 87 Ind. 87; Huffman v. Chicago etc. R. Co., 78 Mo. 50; Hilts v. 
 Chicago & G. T. R. Co., 55 Mich. 437; Brennan v. Gordon, 13 Daly, 208; 
 Bonner v. Whitcomb, 80 Tex. 178; 15 S. W. Rep. 899; Copping v. New 
 York & H. R. R. Co., 122 N. Y. 557; 25 E. Rep. 915; affirming 48 Hun, 
 292; Harper v. Indianapolis & St. L. R. Co., 44 Mo. 567; Flike v. Boston 
 & A. R. Co., 53 N. Y. 549; Kersey v. Kansas City etc. R. Co., 79 Mo. 362; 
 
 17 Am. & Eng. R. Cas. 638 ; East Tenn. etc. R. Co. v. Gurley, 12 Lea, 46? 
 Mentzer e. Armour, 19 Fed. Rep. 373; Huffman v. Chicago etc. R. Co., 78 
 Mo. 50; 17 Am. & Eng. R. Cas. 625; Satlerly v. Morgan, 35 La. An. III65 
 Sutton 0. New York, etc. R. Co., fi6 Hun, 632; 21 N, Y. S. Rep. 312. 
 
126 PERSONS AFFECTED BY TORTS. 
 
 Servants of sub -contractor. Attempts have been made, 
 to hold that the servants of sub-contractors for portions of 
 a general undertaking were for this purpose fellow-servants 
 with the servants directly employed by the principal con- 
 tractors, even without evidence that the sub-contractors' 
 work was under the direction or control of the chief con- 
 tractors. T4iis artificial and unjust extension of a highly 
 artificial rule has fortunately been stopped by the House 
 of Lords (p). 
 
 Volunteer assistant is on same footing as servant. 
 
 Moreover, a stranger who gives his help without reward to 
 a man's servants engaged in any work is held to put him- 
 self, 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 him- 
 self 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 employment (q). This is really a branch of 
 the doctrine "volenti non fit iniuria," discussed below 
 under the title of General Exceptions. 
 
 ilfa«iJeson (1861), 4 Maoq. at p. 227: " AU plaintiff was in fact well aognalnted 
 
 that the master is bound to do is to pro- with the risk and had never made any 
 
 Tide machinery fit and proper lor the complaint. 
 
 work, and to take care to have it super- (p) Johnson v. Lindsey, '91, A. C. 371, 
 
 intended by himself or his workmen in overraling Wiggett v. Fox, 11 Ex. 832, 25 
 
 a fit and proper manner." lu SUpp v. L. J. Ex. 188. 
 
 E. C. B. Co. (1853), 9 Ex. 223, 23 L. J. Ex. (g) Potter v. Faulkner (1861), Ex. Oh. 
 
 23, it was said that this duty does not 1 B. & S. 800, 31 L. J. Q. B. 30, approving 
 
 extend to having a sufficient number of Degg v. Midland B. Co. (1857), 1 H. & N. 
 
 servants for the work : sed gtt. The de- 773, 26 L. J. Ex. 174. 
 
 clslou was partly on the ground that the 
 
 Volunteer assistant is on sa^ie footing as servant. Supporting the 
 text, vide Johnson v. Ashland Water Works Co. 71 Wis. 563; 37 N. W. 
 Rep. 825; Eason v. S. & E. T. Ry. Co., 65 Tex. 577; Mayton v. T. &P. 
 Ry. Co., 63 Tex. 77; Barstow v. Old Colony R. Co., 143 Mass. 535; Os- 
 borne V. Knox, 68 Me. 49; Flower v. Pennsylvania R. Co., 69 Pa. St. 210; 
 Chicago etc. R. Co. v. West, 12S 111. 320; 17 N. E. Rep. 788. 
 
EMPLOYERS LIABILITY ACT. 127 
 
 Exception where the master interferes in person. 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 (r): the partners are generally answer- 
 able for his conduct, yet cannot say he was a fellow-servant 
 of the injured man. 
 
 Employers' Lialijility Act, 1880. Such were the 
 results arrived at by a number of modern authorities, 
 which it seems useless to cite in more detail (s): the 
 rule, though not abrogated, being greatly limited in appli- 
 cation by the statute of 1880. This Act (43 & 44 Vict! 
 c. 42) is on the face of it an experimental and empirical 
 compromise between conflicting interests. It was tem- 
 porary, being enacted only for seven years and the next 
 session of Parliament, and since, continued fi'om«time to 
 time (t); it is confined in its opel;ationJ%»;erlain specified 
 causes of injury ; and only certain kinds of servants arc 
 entitled to the benefit of it, and then upon restrictive con- 
 ditions as to notice of action, mode.pf. trial, and amount of 
 compensation, which are unknown to the common law. 
 The effect is.th'atf'a " workman" within the meanihg'of 
 the Act is put as against his employer in approximately 
 (not altogether, I think) the same position as an outsider 
 as regards the saf^ and fit condition of the material instru- 
 ments, fixed or movable, of the master's business. He is 
 also entitled to compensation for harm incurred through 
 the negligence of another servant exercising superinten- 
 dence, or by the effect of specific orders or rules issued by 
 the master or some one representing him ; and there is a 
 
 (r) Aehworth v. Stammx (1861), 3 E. & (<) Further legislation has been ex- 
 
 E. 701, 30 L.J. Q. B. 183. peoted almost every year, but nothing 
 
 (») They are well collected by Mr. has been done yet. 
 Horace Smith (Law of Negligence, pp. 
 73—76, 2nd ed.). 
 
128 PERSONS AFFECTED BY TOETS. 
 
 special wider provision for the benefit 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 
 employer 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 language 
 which are plain enough to common sense. 
 
 Resulting complication of the law. On the whole we 
 haye, in a matter of general public importance and aflfect- 
 ing large classes of persons who are neither learned in the 
 law nor well able to procure learned advice, the following 
 singularly intricate and clumsy state of things. 
 
 i'irst, 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 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 immimity. 
 
 Fourthly, '• exceptions to amendment of law " by pro- 
 visoes which are mostly but not wholly re-statements of 
 the common law. 
 
 4<l> 
 
 Fifthly, minute and vexatious regulations as to procedure 
 in the cases within the first set of exceptions. 
 
 It is incredible that such a state of things should nowa- 
 days 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 attempted to do 
 elsewhere (u). In the United States the doctrine laid down 
 
 («) Essays In Jurisprudence and information and discussion on the whole 
 Ethics (1882) oh. 8. See for very lull matter the evidence taken by the Select 
 
employers' liability act. 129 
 
 by the Supreme Court of Massachusetts in Farwell's case 
 has beea very generally followed. Except in Massachu- 
 setts, however, an employer does not so easily avoid 
 responsibility by delegating his authority, as to choice of 
 servants or otherwise, to an intermediate superintendent 
 (a;). There has been a good deal of State legislation, but 
 mostly for the protection of railway servants only. Massa- 
 chusetts has a more recent and more comprehensive statute 
 based on the Engli^ Act of 1880 {y). A collection of 
 more or less detailed reports " on the laws regulating the 
 liability of employers in foreign countries " has been 
 published by the Foreign Office (2). 
 
 Committees of the House of Commons ours Is taken of a master's duty to dls- 
 
 in 1876 and 1877 (Pari. Papers, H. 0. close to his servant any non-apparent 
 
 1876, 372; 1877, 285). And see the report risks of the employment which are with- 
 
 of a Select Committee of the House of In his own knowledge : Wheeler v. Mason 
 
 Commons on amending Bills, 1886, 192. USamufactuHng Co. (1833), 133 Mass. 294. 
 
 (a) Cooley on Torts, 560; Shearman (2/) See Mr. McKinney's Article in L. 
 
 and Kedfield, as. 86, 88, 102. And see Q. R. vi. 189, April 1890, at p. 197. 
 
 Chicago M. tf S. R. Co. \..Sosa (1884), (a) Pari. Papers, Commercial, No. 21, 
 
 112 U. S. 377. Also a stricter view than 1886. 
 
130 
 
 CHAPTEE IV. 
 
 ! 
 
 GENERAL EXCEPTIONS. 
 
 Conditions excluding liability for act prima facie 
 wrongful. We have considered the general principles of 
 liability for civil wrongs. It now becomes needful to con- 
 sider the general exceptions to which these principles are 
 subject, or in other words the rules of immunity which 
 limit the rules of liability. There are various conditions 
 which, when present, will prevent an act from being wrong- 
 ful 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 terflis,to be wrongful, it is 
 assumed that no such qualifying condition 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 6f officers of justice to apply force and re- 
 straint in various degrees, from simple arrest to the inflic- 
 tion of death itself, in execution of the process and sentences 
 of the law. Here the harm done, and wilfully done, is 
 justified. There are incidents, again, in every football 
 match which an uninstructed observer might easily take 
 for a confused fight of savages, and grave hurt sometimes 
 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 wroi^ 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 (for, though 
 
GENERAL EXCEPTIONS. 131 
 
 in a manner unavoidable, it was not in a legal sense neces- 
 sary), 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 there are 
 divers things a man may freely do for his own ends, though 
 he well knows that his neighbour will in some way be the 
 worse for them. 
 
 General and particular exceptions. Some of the princi- 
 ples by which liability is excluded are applicable indiffer- 
 ently to all or most kinds of injury, 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 negli- 
 gence" qualifies liability for negligence, and can be 
 understood only in connection with the special rules deter- 
 mining such liability. Exceptions like those of consent 
 and inevitable accident, on the other hand, are of such 
 wide application that they cannot be conveniently dealt with 
 under any one special head. This class is aptly denoted in 
 the Indian Penal Code (for the same or similar principles 
 apply to the law of criminal liability) by the name of 
 General Exceptions. And these are the exceptions which 
 now concern us. The following seem to be their chief 
 categories. An action is within certain limits not maintain- 
 able in respect of the acts of political power called "acts * 
 of state," nor of judicial acts. Executive acts of lawful 
 authority form another similar class. Thbn a class of acts 
 has to be considered which may be called quasi-judicial, and 
 which, also within limits, are protected. Also, there are' 
 
 (a) Jnstlflcatlon seems to be the prop- mou right; excuse, when it is but an 
 
 er word when the' harm suffered is accident; but I do not know that the 
 
 inseparably incident to the performance precise distinction is always possible to 
 
 of a legal duty or the exercise of a com - observe, or that anything turns on it. 
 
132 GENERAL EXCEPTIONS. 
 
 various cases 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 reapect of the person or the 
 occasion. After these come exceptions which are m'ore an 
 affair of common right ; inevitable accident (a point, strange 
 to say, not clearly free from doubt), harm inevitably inci- 
 dent to the ordinary exercise of rights, harm suffered by 
 consent or under conditions amounting 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 unfreqttent occur- 
 rence. On the whole, it appears to signify — ( 1 ) An act 
 done or adopted by the prince or rulers of a foreign inde- 
 pendent State in their political and sovereign capacity, and 
 within the limits of their de facto political sovereignty ; 
 (2) more particularly (in the words of Sir James Ste- 
 phen (6) ), " an act injurious to the person or to the prop- 
 erty of some person who is not at the time of that act a 
 subject (c) of her Majesty ; which act is 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). 
 
 (5) History of the Cilmlual Law, il. the protection of English law ; therefore 
 
 61.' . an act of state In this sense cannot take 
 
 (0) This includes a friendly alien place in England in time of peace, 
 living in " temporary allegiance " under 
 
ACTS OF STATE. 133 
 
 General ground of exemption. Our courts of justice 
 profess themselves not competent to discuss acts of these 
 kinds for reasons thus expressed by the Judicial Commit- 
 tee of the Privy Council: — "The transactions of inde- 
 pendent 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 
 
 (d) Secretary of State in Council of India v. Kamachee Boye Sahaba (1869), 13 Moo. 
 P. C. 22, 73. 
 
 General ground ol exemption. The language of the text is based on 
 conditions peculiar to the system of the British government. The Amer- 
 ican doctrine may be stated thus : An act of state is the commission by 
 the executive branch of the government, for reasons of polity, of an act 
 affecting a person not a citizen. When such an act Is made the subject 
 of complaint, the mere avowal, by the executive department of respon- 
 sibility therefor, will move the court to dismiss the matter from its 
 consideration. 
 
 If the act has affected a citizen and the executive department 
 acknowledge responsibility therefor| it must show that the act was 
 within its authority under the Constitution and laws. The government 
 of this republic Is a system of powers delegated by the people and as 
 long d.a the government acts within the limits of those powers t^e peo- 
 ple cannot complain. The guarding of these limits is one of the chief 
 duties and sacred rights of the judiciary; but the judiciary possesses 
 neither rule for determination nor power to enforce its decisions 
 regarding acts of the executive department towards a person not a citi- 
 zen. The relations of Great Britain to her Indian dependencies has a 
 close parallel in our relations to the Indian nations. The question arose 
 in the case of Cherokee. Nation v. State of Georgia (5 Pet. 1), in which 
 the plaintiff sought the aid of the Supreme Court of the United States to 
 restrain the State of Georgia from enforcing certain of its laws directed 
 against the Cherokee Nation. It was held that the court had no power 
 to interfere. " In such a case," said Johnson, J., "the appeal is to the 
 sword and Almighty Justice, not to courts of law or equity." 
 
 In Euan «. Perry (3 Caines, 120) it was held, that orders from the 
 President of the United States and the Secretary of Navy protected a 
 naval officer who stopped a neutral vessel, the property of a foreigner, 
 though the delay caused its subsequent capture by the enemy. See 
 Durand ■o. HoUins, 4 Blatchf. 451. 
 
134 GENEEAIi EXCEPTIONS. 
 
 the Privy Council have applied this rule to the dealings of 
 the East India Cotnpany with native States and with' the 
 property of native princes (e). In these cases the line 
 between public and private property, between acts of 
 regular admini'stration and acts of war or of annexation, is 
 not always easy to draw. Most of them turn on acts of 
 poljtjcal annexation. Persons who by such an act become 
 British subjects do not thereby become entitled to complain 
 in municipal courts deriving 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 ratified by the Crown. 
 
 " The leading case on this subject is Buron v. Den- 
 man (/). This was an action against Captain Denman, a 
 captain in the navy, for burning certain baracoons 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 
 Kussell, 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 effect 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 towards indi- 
 viduals. If one British subject puts another to death or 
 
 (e). See Dosa ^y Secretary of State for (J) (1847) 2 Ex. 167. 
 
 India in Council (1876), 19 Eq. 509, and (3) Vol. 11. p. 61. 
 
 the case last cited. 
 
ACTS OF STATE. 135 
 
 destroys his property by the express command 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 determine whether it is lawful 
 or not": as, for example, when the Court of King's 
 Bench decided that a Secretary of State had no power to 
 issue general warrants to search for and seize papers and 
 the like (h), 
 
 Liocal actions a^aiust viceroy or governor. Another 
 question which has been raised in the colonies and 
 Ireland, but which by its nature cannot come before an 
 English court for direct decision, is how -far an action is 
 maintainable against an officer in the nature of a viceroy 
 during his term of office, and in the local courts of the 
 territory in which he represents the Crown. It has been 
 held by the Judicial Committee that the Lieutenant- 
 Governor of a colony is not exempt from suit in the courts 
 of that colony for a debt or other merely private cause of 
 action («") ; and by the Irish courts, on the other hand, 
 .that the Lord-Lieutenant is exempt from being sued in 
 Ireland for an act done in his official or "politic" 
 capacity (j). 
 
 Power to exclude aliens. An alien not already admitted 
 to the enjoyment of civil rights in England (or any British 
 possession ) seems to have no remedy in our law if pre- 
 vented by the local executive authority from entering 
 
 (ft) Entick V. Carrington, 19 St. Tr. (j) Mby v. Wodehouse, 17 Ir. C. L. E. 
 
 1043. 618; Sullivan v. Spencer, Ir. E. 6 C. L. 
 
 (i) Bill V. Bigge (1841), 3 Moo. P. C. 173, following Tandy v. Westmorelamd, 
 
 465; dissenting from Lord Mansfield's 27 St. Tr. 1246. These oases go very far, 
 
 dictnm in Mostyn v. Fabrigas, Cowp. for the Lord-Lieutenant was not even 
 
 172, that " locally during his govern- called on to plead his privilege, but the 
 
 ment no ciml or criminal action will lie Court stayed proceedings against him 
 
 against him; " though it may be that he on motion. As to the effect of a local 
 
 is privileged from personal arrest where Act of Indemnity, see Phillips y. Ayre 
 
 arrest would, by the local law, be part (1870), Ex. Oh. L. K. 6Q. B. 1. 
 of the ordinary process. 
 
136 GENERAL EXCEPTIONS. 
 
 British territory (^). It seems doubtful whether admis- 
 sion to temporary allegiance in one part of the British 
 Empire would confer any right to be admitted to another 
 part. 
 
 Acts of foreign powers. There is another quite distinct 
 point of . jurisdiction in connection with which the term 
 " act of state " is used. A sovereign prince or other per- 
 son representing an independent power is not liable to be 
 sued in the courts of this country for acts done in a sov- 
 ereign 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 between the Crowns of England and Hanover was 
 dissolved (?). This rule is included in a wider one which 
 not only extends beyond the subject of this work, but 
 belongs 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 sover- 
 eign authority, and of the international comity which induces 
 
 (Ji) Musgrave v. Chimg Teeong Toy, (I) Duke of Brmmoict} y. King of ffan- 
 
 •91, A. C. 272, 60 L. J. P. O. 28. . over (1843-4), 6 Beav. 1, 57 ; afBrmed in 
 
 / the House of Lords, 2 H. L. 0. 1. 
 
 Acts ol foreign powers. A sovereign power cannot be sued in the 
 federal or state courts of the United States, but it may exercise its 
 option to appear. Therefore, a complaint In which a sovereign power 
 Is made a co-defendant is not demurrable until the time has elapsed for 
 the exercise of this option. Manning v. State of Nicaragua, li How. Pr. 
 517. 
 
 A state of the Union cannot be sued in the courts of a sister state 
 without its express consent. People v. Talmage, 6 Cal. 256 ; Treasurer 
 V. Cleary, 3 Eich. 372; Hosmer v, De Young, 1 Tex. 764; Patterson v. 
 Shaw, 6 Ind. 377; Williamsport etc. R. Co. e. Commonwealth, 33 Pa. St. 
 288 ; Beers v. Arkansas, 20 How. 527. 
 
 In Chisholm v. Georgi^, (2 Dall. 419) it was held, that a state was 
 suable in the federal courts. This decision led to the adoption of the 
 eleventh Amendment in negation of that construction of the cotistitution. 
 See North Carolina v. Temple, 134 N. S. 22; Hans v. Louisiana, 134 
 U. S. 1 , 
 
ACTS OF STATE. 137 
 
 every sovereign state to respect the independence of every 
 other sovereign state, each and every one declines to exer- 
 cise by naeans of any of its Courts, any of its territorial 
 jurisdiction over the person of any sovereign or ambassador 
 of any other state, or over the public property of any 
 state which is destined to its public use, or over the prop- 
 erty of any ambassador (m), though such sovereign, am- 
 bassador, or property be within its territory, and therefore, 
 but for the common agreement, subject to its jurisdic- 
 tion " (re). 
 
 Summary. If we may generalize from the doctrine of 
 our own 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 justice 
 of any other state. So far forth as it affects persons 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 subiect of the same state, it may be, and in 
 England, it is, examinable by the courts in their ordinary 
 jurisdiction. In most Continental 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 pre- 
 liminary question whether the ordinary court or the Con- 
 seil d'Etat has jurisdiction is decided by the Tribunal des 
 Conflits, a peculiar and composite court) (^). 
 
 (m) What if cattle belonging to a preservation ol every state's sovereign 
 
 foreign ambassador were distrained rights within Its own jarisdiotion. 
 
 damage feasant? It would seem he Plainly the command of a foreign gov- 
 
 conld not get them back without sub- emment would be no answer to an 
 
 mitting to the jurisdiction. action for trespass to land, or for the 
 
 (») TheParZement £eiffe(1880),5P. D. arrest of an alleged offender against a 
 
 197 214. foreign law, within the body of an 
 
 (o) I have not met with a distinct English county, 
 
 statement of this qualification in exist- (p) Law of May 24, 1872. But the prin- 
 
 Ing authorities, but it is evidently as- ciple is ancient, and the old law is stiU 
 
 Bumed by them, and is necessary for the cited on various points. 
 
138 - GENERAL EXCEPTIONS. 
 
 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 spoken in his judicial capacity in a court of jus- 
 tice " {q). And the exemption is not confined to judges 
 of superior courts. It is founded on the necessity of 
 judges being independent in the exercise of their office, a 
 reason which applies equally to all judicial proceedings. 
 
 (q) Seottv.StaimJieldQSSS),'h.B,.ZWs.. snniB up the effect of many previous 
 220, 37 L. iT. Ex. ISS, wMch confirms and decisions. 
 
 Judicial acts. It is an accepted rule that jadiclal acts are excepted 
 from liability. Brodie v. Butledge, 2 Bay, 69 ; Ambler ». Church, 1 Boot, 
 211; Phelps v. Lill, 1 Day, 315; Moor v. Ames, 3 Caines, 170; Young c- 
 Herbert, 2 Nott. & M. 168 ; Yates v. Lansing, 5 Johns. 282 ; 9 Id, 395 ; 
 Vanderheyden v. Young, 11 Id. 150; Ely v. Thomson, 3 A. K. Marsh. 76; 
 Little V. Moore, 4 N. J. L. 74; Tracy v. Williams, 2 Conn. 113; Thom- 
 kins V. Sands, 8 Wend. 408 ; Lining v. Bertham, 2 Bay, I ; Burnham v. 
 Stevens, 33 N. H. 247; Ross v. Rittenhouse, 2 Dall. 160; Hamilton v. 
 Williams, 26 Ala. 527; Benley w. Wiggins, 6 Harr. (Del.) 462; Carter v. 
 Dow, 16 Wis. 298; Maguire v. Hughes, 13 La. An. 281; Way». Townsend, 
 4 Allen, 114; Wood v. Ruland, 10 Mo. 143; Hatfield v. Towsley, 3 la. 
 584; Lancaster v. Lane, 19 111. 242; Deal w. Harris, 8 Md. 40; Walker v. 
 Hallock, 32 Ind. 239; Busteed v. Parsons, 54 Ala. 393; Lange v Benedict, 
 73 N. Y. 12; Bevard v. Hoffman, 18 Md. 379i 
 
 • The text substantially states the American law upon the responsibility 
 of judicial officers acting without jurisdiction or in excess thereof. See 
 Grove v. VanDuyn, 44 N. J. L. 654; Clark v. Holmes, 1 Dough. (Mich.) 
 390; Blood ». Sayre, 17 Vt. 609; Wright v. Rouse, 18 Neb. 234; Piper v. 
 Pearson, 2 Gray, 120; Borden v. Fitch, 15 Johns. 121; Estopinal v, Pey- 
 roux, 37 La. An. 477; Patzack v. Van Gerlchten, 10 Mo. App. 424; Case 
 V. Shepherd, 2 Johns. Clas. 27; Allen v. Gray, 11 Conn. 95; Barkdoo v. 
 Randall, 4 Blackf. 476; Connelly v. Wood, 31 Kan. 359; Olmstead v. 
 Bi;ewer, 91 Ala. 124; 8 So. Eep. 345; Bradley v. BJisher, 13 Wall. 348; 
 Stewart », Cooley,' 23 Minn. 347. 
 
 There are dicta to the effect that a judicial officer is liable for mali- 
 cious and corrupt acts committed in his judicial capacity. Randall v. 
 Brigham, 7 Wall. 253; Garfield u. Douglass, 22 111. 100. 
 
 But the proper remedy in such cases lies in the removal of the official 
 by impeachment and not in an attack upon that protection which public 
 policy bestows upon the office. Kress u. State, 65 Ind. 106; Pratt v. 
 Gardner, '2 Cush. 98; State v. Hastings (Neb.), 55 N. W. Rep. 774. 
 
 \ 
 
JUDICIAL ACTS. 139 
 
 But in order to establish the exemption as regards proceed- 
 ings in an inferior court, the judge must show that at the 
 time of the alleged wrong-doing some matter was before 
 him in which he had jurisdiction (whereas in the case of a 
 superior court it is for th? plaintiff to prove want of juris- 
 diction) ; and the act complained of must be df 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 action- 
 able 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 disturbance, but because 
 in the revising barrister's opinion he improperly suppressed 
 facts within his knowledge at the holding of a former 
 court (s). The like law holds if a county court judge 
 commits a party without jurisdiction, and being informed 
 of the facts which show that he has no jurisdiction (O ; 
 though an inferior judge is not liable for an act which on 
 the facts apparent to him at the time was within his juris- 
 diction, but by reason of facts not then shown was in truth 
 outside it (m). 
 
 A judge is not liable in trespass fof want of jurisdiction, 
 unless he knew or ought to have known of the defect ; 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 anything judicially done by him 
 in the same cause upon the footing of that conclusion (y). 
 
 (r) 28 & 29 Viot. c. 36, s. 16. (ic) Colder V. HaUeet (1839), 3 Moo. P. 
 
 («) Waiis V. Maclachlan (laiB),! Ex. C. 28, 78. 
 
 D. 376, 45 L. J. Q. B. 689. (y) Kemp v. Neville (1861), 10 C. B. N. 
 
 («) Houlden v. SmUh (1850), 14 Q. B. S. 523, 31 L. J. 0. P. 158 (an action against 
 
 841, 19 L. J. Q. B. 170. the Vice- Chancellor of the University of 
 
 («) Lmvther v. Earl of Radnor (1806), 8 Cambridge), and aathorltles there cited. 
 East, 113, 118. 
 
140 GENERAL EXCEPTIONS. 
 
 Allegations that the act complained of was done " mali- 
 ciously 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. 
 
 Liiability by statute in special cases. There are two 
 cases in which by statute an action does or did lie against a 
 judge for misconduct in his office, namely, if he refuses to 
 grant a writ of habeas corpus in yacation time (5), and if 
 he refused to seal a bill of exceptions (c). 
 
 Judicial acts of persons not judges. The rule of im- 
 munity for judicial acts is applied not only to judges of the 
 ordinary civil tribunals, but to members of naval and mili- 
 tary courts-martial or courts of inquiry constituted in 
 accordance with military law and usage (d). It is also 
 . applied to a limited extent to arbitrators, and to any person 
 who is in a position 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 in judgment (e). 
 He would be liable for a corrupt or partisan exercise of his 
 office ; but if he really does not use a judicial discretion, 
 
 (s) Fran V- BlacMmm (1862), 3 B. & S. and more special in another s^nse, than 
 
 576. ~ the rule now ih question. Partly, also, 
 
 (a) Sebtt 7. Stamfield (1868), JL. B. 3 Ex. they deal with acts of authority not of a 
 
 220, 37 L. J. Ex. 1S5. judicial kind, which will be mentioned 
 
 (6) 31 Car. II. o. 2, s. 9. presently. 
 
 (c) 13 Edw. I. (Stat. Westm. 2) c. 31, (e) Pappa v. Sose (1872), Ex. Oh. L. E. 
 
 cf. Blaekstone, lii, 372; [See Home v. 7 0. P. 525, 41 L. J. 0. P. 187 (broker 
 
 Pudll (la.), 55N. W. Rep. 485.] authorized by sale note to decide on 
 
 Cd) This may be collected from such quality of goods) ; Tharsis Sulphur Co. 
 
 authorities as DawUns v. Lord RoHeby v. Loftns (1872), I..E. 8 0. P. 1, 42 Ii. J. C. 
 
 (1875), L. E. 7 H. L. 744, 45 L. J. Q. B. 8; P. 6 (average adjuster nominated to as- 
 
 DamUns V. Priace Edward of Saxe Wei- certain proportion of loss as between 
 
 mar (1876), 1 Q. B. D. 499, 45 L. J. Q. B. ship and cargo) ; Stevenson v. Watson 
 
 667, which however go to some extent (1879), 4 C. P. D. 148, 48 L. J. O. P. 318 
 
 on the doctrine of " privileged cdmmnni- (architect nominated to certify what waa 
 
 ■cations," a doctrine wider in one sense, due to contractor). 
 
EXECUTIVE ACTS. 141 
 
 the Tightness or competence of his judgment cannot be 
 brought into question for the purpose of making him per- 
 sonally liable. 
 
 The doctrine of our courts on this subject appears to be 
 fully and uniformly accepted in the United States (/). 
 
 3. — Executive Acts. 
 
 Executive acts. As to executive acts of public officers, 
 no legal wrong 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 executing the law ; and in so doing they are similarly 
 protected {g). Were not this the rule, it is evident that 
 
 (/) Oooley on Torts, Ch. U. See to criminal law. [Payne v. Green, 18 
 
 Acts of qitajsi- judicial siscbeiion. Miss. 507; Kilpatriok ». Frost, 2 Grant 
 
 pott, p. 110. Cas. 168; Elder v. Morrison, 10 Wend. 
 
 {g) Tlie details of this subject belong 128; Hooper v. Smith, 19 Vt. 151.] 
 
 Executive acts. The general doctrine stated in the text prevails in the 
 United States. Thus, it has been held in numerous cases that, trespass 
 does not lie for acts done by a ministerial officer under process regular 
 on its face and issuing from a court of competent jurisdiction. Luding- 
 ton V. Peck, 2 Conn. 700; Waterburg v. Lockwood, i Day, 257; Warner 
 V. Shed, 10 Johns. 138; Taylor ». Alexandria, 6 Ohio, 144; McHugh v. 
 Pundt, 11 BaUey, 441; Noroross v. Nunan, 61 Cal. 640; Beatty v. Perkins, . 
 6 Wend. 382 ; Camp v. Mosley, 2 Fla. 171 ; TefEt v. Ashbaugh, 13 111. 602 ; 
 State V. McNally, 34 Me. 210; Milburn o. Gilman, 10 Mo. 64; Woods v. 
 Davis, 34 N. H. 328; Gray v. Kimball, 42 Me. 299; Mason v. Vance, 1 
 Sneed (Tenn.),.178; Ortman v. Greenman, 4 Mich. 291; McLean ». Cook, 
 23 Wis. 364; Hicks v. Dom, 1 Lans. 81; 54 Barb. 172; Shaw v. Davis, 55 
 Barb. 389; Dunn v. GUman, 34 Mich. 256; Breckwoldt v. Morris, 149 Pa. 
 291) 24 At. Itep, 300; Van Kewren v. Switzer, 58 Hun, 602; 11 N. Y. S. 
 Kep. 263; Frowbridge v. Ballard, 81 Mich. 451. 
 
142 GENERAL EXCEPTIONS. 
 
 the law could not be enforced at all. But a public oflScer 
 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 mat- 
 ter is that an officer is not protected from the ordinary con- 
 sequence of Unwarranted acts which it rested with himself 
 to avoid, such as using heedless violence to secure a pris- 
 oner ; but he is protected if he has only acted in a manner 
 in itself reasonable, and in execution of an apparently 
 regular warrant or order which on the face of it he was 
 
 If the process Is merely voidable it will be a defense to the officer 
 acting under it. Gogborn v. Spence, 16 Ala. 549 ; Sheldon v. Stryker, 54 
 Barb. 116; "Wilton Mfg. Co. v. Butler, 34 Me. 431^ Averett v. Thompson, 
 IS Ala. 678; Mowers. Stickney, 5 Minn. 397; Billings v. Russell, 23 Pa. 
 St. 189. But not where the process is void. Kerr ». Mount, 28 N. Y. 
 659; Stephens «. Wilkins, 6 Pa. St. 260; Lincoln v. Cross, 10 Wis. 91. 
 Nor where thB process shows its irregularity upon its face. Clark v. 
 Bond, 7 Baxt. 288; Elsmore v. Longfellow, 76 Me. 128. 
 
 Where an officer exceeds the original lawful authority of his warrant 
 he becomes a trespasser ab initio. Mussey v. Cummlngs, 34 Me. 74; 
 Burton ». Calloway, 20 Ind. 469 ; Bradley v. Davis, 14 Me. 44 ; Jarrett v. 
 Gwathmey, 6 Blackf. 237; Taylor v. Jones, 42 N. H. 25; Camp v. Ganley, 
 6 111. App. 499; Parmelee v. Leonard, 9 la. 131. 
 
 There are late authorities holding that an officer is not liable for 
 exceeding his lawful authority unless it appears that the original lavrfnl 
 act was done with an unlawful purpose. Grafton v. Carmichael, 48 Wis. 
 660; Davis v. Webster, 59 N. H. 471; State v. Martin, 77 Mo. 670; 
 Wentworth v. Sawyer, 76 Mo. 434; Page v. Du Puy, 40 111. 506; Gates v. 
 Lonsburg, 20 Jolms. 427; Aeton v. Cooper, 29 "Vt. 44; Stoughton v. Mott, 
 25Vt. 668. ■' 
 
 A sheriff or constable is responsible for his mistakes in making a levy 
 or an arrest. Atkinson v. Gatcher, 23 Ark. 101; Sims v. Reed, 12 B. Mon. 
 51; Fosso V. Stewart, 14 Me. 312; Bean v. Hubbard, 4 Cush. 85; Caldwell 
 V. Arnold, 8 Minn. 265; Meadow v. Wise, 41 Ark. 285; Oliver v. White, 18 
 S. C. 235; Sullivan v. Farley, 63 How. Pr. 238; Bailey v. Tipton, 29 Mo. 
 206; Markley v. Rand, 12 Cal. 275; Atkinson v. Atkinson, 16 La. An. 491; 
 Lathrop v. Arnold, 25 Me. 136; Brownell v. Carnley, 3 Duer, 9; RafEerty 
 V. People, 69 111. Ill; 72 111. 37; 18 Am. Rep. 601; Savacool v. Boughton, 
 6 Wend. 170; State v. Weed, 21 N. H. 262; 3 Am. Dec. 188; Hubbard v. 
 Lord, 59 Tex. 384; O'Shaughnessy v. Baxter, 121 Mass. 615; McGuire v. 
 Galligan, 57 Mich. 38. 
 
NAVAL AND MILITARY DISCIPLINE. 143 
 
 bound to obey (A). This applies only to irregularity in 
 the process of a court having jurisdiction over the alleged 
 cause. Where an order is issued by a court which has no 
 jurisdiction at all in the subject-matter, so that the pro- 
 ceedings are, as it is said, " coram non judice," the ex- 
 emption ceases (i). 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 particular statutes con- 
 tain provisions which give a qualified protection to persons 
 acting under the statute, by requiring 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 provisions, which are important, and 
 sometimes 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 officer of the 
 law is not excused in such a case. He must lay hands on 
 the right person or property at his peril, the only excep- 
 tioa\being on the principle of estoppel, where he is misled 
 by the party's own act (m). 
 
 Acts of naval and military officers. , Acts done by 
 naval and military officers in the execution or intended 
 
 (ft) Mayor of London v. Cox (1867), L. (I) Of. Dioeyon Parties, 430. Sect. 170 
 
 B. 2 H. Xi. at p. 269 (in opinion of jndges, of the Army Act, 1881, will serve as a 
 
 per Willes J.). Tlie law seems to be recent specimen. Cf. the Indian Code 
 
 understood in the same way in the of Civil Procedure (Act XIV. 1882), b. 
 
 United States. Cooley on Torts, 459-462. 424. 
 
 (i) The case of The Marshcilsea, 10 Co, (m) See Glaaapoole v. Yowng (1829), 9 
 
 Rep. 76 a; Clark v. Woods (1848), 2 Ex. B. & C. 696; Balme v. Button, Ex. Ch. 
 
 395, 17 L. J. M. C. 189. (1833), 9 Bing. 471 ; DunMon V. Paterson 
 
 (i) 24 Geo. II. c. 44, s. 6. (Action lies (1857), 2 0. B. N. S. 495, 26 L. J. C. P. 267 ; 
 
 only if a demand in writing for perusal and other authorities ' collected In 
 
 and copy of the warrant is refused or Fisher's Digest, ed. Mews, sub. tit. 
 
 neglected for six days.) Sheriff. 
 
 Acts of naval and military ofQcers. Where the military duty of 
 obedience amounts to duress it is a defense to trespass. Witherspoon u. 
 Woody, 4 Coldw. 605; Barrow v. Page, 5 Hayw. (Tenn.) 197; Pollard v. 
 
144 GENERAL EXCEPTIONS. 
 
 execution of their duty, for the enforcement of the rules 
 of the service and preservation of discipline, fall to some 
 extent under this head. The justification of a superior 
 officer as regards a subordinate partly depends on the con- 
 sent implied (or indeed expressed) in the act of a man's 
 joining the service that he will abide by its regulations 
 and usages; partly on the sanction expressly given to 
 military law by statutes. There is very great weight of 
 opinion, but no absolute decision, that an action does not 
 lie in a civil court for bringing an alleged offender against 
 military law (being a person subject to that law) before a 
 court-martial without probable cause (w). 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 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 
 unlawful (o). 
 
 Of otber public authorities. The same principles apply 
 to the exemption of a person acting under the orders of 
 any public body competent in the matter in hand. An 
 
 («) Johnatone v. Sutton (1786-7), Ex. (o) See per WUles J. !n Keighly T. 
 
 Ch. 1 T. E. 610, 548; affirmed in H. L. Bell (1866), 4 F. &F. at p. 790. In time of 
 
 Ibid. 784, 1 Bro. P. ,0. 76; 1 E. E. 257. war the protection may perhaps be more 
 
 The Ex. Ch. thought the action did not extensive. Astocriminalresponsibility 
 
 lie, but the defendant was entitled to in such cases, ct. Stephen, Dig. Cr. Law, 
 
 judgment even if it did. No reasons art. 202, Hist. Cr. Law, i. 200-206. 
 appear to have been given in the House 
 of Lords. 
 
 Baldwin, 22 la. 328; Hess v. Johnson, 3 W. Va. 645; Hammellc. Bassett, 
 .24 Ark. 499. But there are d^isions holding that no authority can 
 justify an unlawful act. Hogue v. Penn, 3 Bush, 663; Wilson v, Frank- 
 lin, 63 N. C. 269; Smith v. Tsenhour, 3 Coldw. 214; Mitchell o. Har- 
 mony, 13 How. 115; Brown v. Howard, 14 Johns. 119. 
 
QUASI-JUDICIAL POWERS. 145 
 
 action does not lie against the Serjeant-at-arms of the 
 House of Commons for excluding a member from the 
 House in obedience to a resolution of the House itself; 
 this being a matter of internal discipline in which the House 
 is supreme {p). 
 
 Tndiau Act, XVIII. of 1850. The principles of English 
 law relating to the protection of judicial officers and persons 
 acting under their orders have in British India been declared 
 by express enactment (Act XVIH. of 1850). 
 
 -^v 
 
 4. — Quasi-judicial Acts, 
 
 Acts of quasi- judicial discretion. Divers persons. and 
 bodies are called upon, in the management of public institu- 
 tions or government of voluntary associations, to exercise 
 
 (p) BraSlaugh t. Gossett (1884), 12 Q. legislative assembly oyer its own mem- 
 
 B. D. 271, 53 L. J. Q. B. 209. As to the bers, see Barton y. Taylor (J. 0. 1886), |11 
 
 limits of tlie privilege, see per Stephen App. Ca. 197, 65 L. J. P. 0. 1. 
 J. at p. 283. As to the power of a colonial 
 
 Acts ot qiiasi-judicial discretion. lu the United States the doctrine 
 of the text has a very general application, being recognized in decisions 
 covering various employments, such as military and naval officers, 
 arbitrators, tax-assessors, grand and petit jurors, collectors of customs, 
 school commissioners, etc. See Jones v. Browu, 5i la. 74; Hantei^ v. 
 Mathis, iO Ind. 356; Goald v. Hammond, 1 HcAll. 235; Van Steenbergh 
 V. Bigelow, 3 Wend. 42; Turpen v. Booth, 56 Cal. 65; Harrington v. 
 Commissioners, 2 McCord, 400; Hoggott v. Bigley, 6 Hamph. 236; , 
 Weaver v. Devendorf, 3 Denio, 117; Freeman v. Cornwall, 10 Johns. 
 470; Auditor v. Atchison etc. B. Co., 6 Kan. 500; Lilienthal v. Campbell, 
 22 La. An. 600; McDanil v. Tebbetts, 60 N. H. 497; Gregorys. Brooks,, 
 37 Conn. 365; Edwards v, Ferguson, 73 Mo. 686; Billings v. Lafferty, 31 
 ni. 318; Donaboe v. Richards, 38 Me. 379; Shoemaker v. Nesbit, 2 
 Bawle, 201; Bennett v. Fulmer, 49 Pa. St. 157; Wall v. Trumbull, 16 
 Mich. 228; Wasson v. Mitchell, 18 la. 153; Pike v. Megoun, 44 Mo. 291; 
 Walker o. Halleck, 32 Ind. 293; Downing v. McFadden, 18 Pa. St. 334; 
 State V. Hastings (Neb.), 55 N. W. Bep. 774; Johnson v. Diet, of 
 Columbia, 118 U. S. 19; Seifert v. Brooklyn, 101 N. Y. 136. 
 
 10 
 
146 GENERAL EXCEPTIONS. 
 
 a sort of conventional jurisdiction analogous to that of 
 inferior courts of justice. These quasi-judicial functions 
 are in many cases created or confirmed by Parliament. 
 Such are the powers of the universities over their officers 
 and graduates, and of colleges in the universities over their 
 fellows and scholars, and of the General Council of Medical 
 Education over registered medical practitioners (q). 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 congrega- 
 tions. And the same principle appears in the constitution 
 of modern incorporated companies, and even of private 
 partnerships. Further, a quasi-judicial authority may 
 exist by the mere convention of a number of persons who 
 have associated themselves for any lawful purpose, and 
 have entrusted powers of management and discipline to 
 select members. The committees of most clubs have by 
 the rules of the club some such authority, or at any rate an 
 initiative in presenting matters of discipline before the 
 whole body. The Inns of Court exhibit a curious and 
 unique example of great power and authority exercised by 
 voluntary unincorporated societies in a legally anomalous 
 manner. Their powers are for some purposes quasi- 
 judicial, and yet they are not subject to any ordinary 
 jurisdiction (r). 
 
 Rules of natural justice and special rules, if any, must 
 be observed. The general rule as to quasi-judicial powers 
 
 (g) See Allbutt v. General Council, (fc. tridge v. General Council, ^c. (1890), 25 Q. 
 (1889), 23 Q. B. DiT.400; iecso/iv. General B. Div. 90, 59 L. J. Q. B. 475. 
 Cmmcit, fe. ilSS»),i3 Cb. Div. 306; Par- (r) See Neate v. DenmanOSH), IB Eq. 
 
 127. 
 
 Rules Of natural justice and special rules, il any, must be observed. 
 In Farnsworth v. Starrs (5 Gush. 412) it is held that members of a church 
 council who have by the constitution of the church a right to investigate 
 the moral conduct of members are as fully protected, it actins in the 
 
QUASI-JUDICIAIi POWERS. 147 
 
 of this class is that persons exercising them are protected 
 from civil liability if they observe the rulgajjL natural jas- 
 tice, and also the particular statutory or cony:entional_rules, 
 if any, which may prescribe their course of action. The 
 rules of natural justice appear to mean, for this purpose, 
 that a man is not to be removed from office or membership, 
 or otherwise dealt with to his disadvantage, without having 
 fair and sufficient notice of what is alleged against him, and 
 an opportunity of making his defence ; and that the decision, 
 whatever it is, must Tbe arrived at in good faith with a view 
 to the common interest of the society or institution con- 
 cerned. If these conditions be satisfied, a court of justice 
 will not interfere, not even if it thinks the decision was in 
 fact wrong (s). If not, the act complained of will be de- 
 clared void, and the person affected by it maintained in his 
 rights until the matter has been properly and regularly dealt 
 with (t). These principles apply to the expulsion of a 
 partner from a private firm where a power of expulsion is 
 conferred by the partnership contract (u). 
 
 (s) Inderwichv. Snell (1850), 2 Mac. & to the member) ; Laboachere v. Wham- 
 6.216 (removal of a director of a com- cliffe (ls79),13 Ch. D. 346 (the like, no 
 pany) ; Dmckins v. ATitrobus (1881), 17 Ch. eufficieat inquiry or notice to the mem- 
 Div. 615 (expulsion of a member from a ber, calling and proceedings of general 
 club); cf. 13 Ch.D. 352; Portridfl'ev. Gere- meeting irregular); Dean v. Bennett 
 eral Council, ^c, note («) last page, al- (1870) , 6 Ch. 489, 40 L. J. Ch. 452 (minister 
 though no notice was given, the council of Baptist chapel under deed of settle- 
 honestly thinking they had no option. ment, no snlScient notice of specific 
 In the case of a club an injunction will charges either to the minister or in call- 
 be granted only in respect of the mem- ing special meeting), 
 ber's right of property, therefore where (a) Blissei v. Daniel (1853), 10 Ha. 493 ; 
 the club is proprietary the only remedy Wood v. Wood (1874), L. R. 9 Ex. 190, 4.1 
 IB in damages: Baird V. Wells (,1890), ii L.J. Ex.190. Without an express power 
 Ch. D. 661, 59 L. J. Ch, 673. in the articles a partner cannot be ex- 
 
 («) Fisher v. Keane (1878), 11 Ch. D. pelled at all. 
 '353, 49 L. J. Ch. 11 (a club case, no notice 
 
 scope of tbat authority and in good faith, as secular judges. See Lucas 
 V. Case, 9 Bush, 297. But in State v. Williams (75 N. C. 134) it is held, 
 that members of a society are liable for subjecting a fellow member to a 
 "ceremony of expulsion " which involves personal violence, though the 
 ceremony was known to the plaintiff at the time of joining. See 24 Am. 
 Law Rev. 637. 
 
148 GENERAL KXCEPTIONS. 
 
 Absolute discretionary powers. It may be, however, 
 that by the authority of Parliament (or, it would seem, by 
 the previous agreement of the party to be affected) a gov- 
 ernirtg or administrative body, or the inajority of an asso- 
 ciation, has power to remove a man from oflSee or the like 
 without anything in the nature of judicial proceedings, and 
 without showing any cause at all. Whether a particular 
 authority is judicial or absolute must be determined by the 
 terms of the particular instrumentcreating it (u). 
 
 Questions whether duty judicial 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 ministerial, or judicial for some purpose's and 
 ministerial for others. It seems that at common law the 
 returning or presiding officer at a parliamentary or other 
 
 (®) E. g. Dean v. Bemnett, smpra; Msher of Sugby School (1874) , 18 Eq. 28, 13 L. J. 
 V. Jackson, '91, 5 Oh. 84, 60 L. J. Ch. 483 Oh. 834 (power absolute), 
 (pow^r judicial) ; Hayman v. Governors 
 
 Questions, whether duty judicial or ministerial. In America the 
 law is not settled that officers having charge of elections and the regis- 
 tration of voters are protected like judges from the injurious 
 consequences of their conduct in the performance of their functions. 
 HoweTer, the tendency of the late decisions is towards uniformity in 
 exempting such officers from liability where they act in good faith. Eail 
 V. Potts, 8 Humph. 225; Hannon «. Grizzard, 99 N. C. 161; 6 S. E. 
 Eep. 92; Jenkins v. Waldron, 11 Johns. 114; Griffin v. Rising, 11 Mete. 
 889 ; Eausler v. Parsons, 6 W. Va. 486 ; 20 Am. Eep. 431 ; Goetcheus 
 V. Mathewson, 61 N. Y. 420; Patterson o. D'Auterive, 6 La. An. 467; 
 State V. McDonald, 4 Harr. (Del.) 665; Turnpike Co. v. Champney, . 
 2 N. H. 199; Weckerly v. Geyer, 11 Serg. & R. 36; Keenan v. Cook, 
 12 E. I. 62; Morgan v. Dudley, 18 B. Mon. 693; Caulfield v. Bullock, 
 Id. 495; Gordon v. Farrar, 2 Dough. (Mich.) 411; Murphy o. Ram- 
 sey, 114 TJ. S. 15; Wheeler u. Patterson, 1 N. H. 88; Larned v. Wheeler, 
 140 Mass. 390; Butler. ». Kent, 19 Johns. 223; Jenkins v. Waldron, 11 
 Id. 114. But there are decisions holding such officers to the strict rule 
 of liability for erroneously excluding a person entitled to vote, although 
 they act In good faith. Lincoln v. kapgood, 11 Mass. 350; Capen v. 
 Foster, 12 Pick. 312; Jeffries v. Ankenny, 11 Ohio, 372; Longo. Long, 
 67 la. 497. 
 
DOMESTIC AtJTHOKITY. 149 
 
 election has a judicial discretion, and does not commit a 
 wrong if by an honest error of judgment he refuses to 
 receive a vote (cc) ; 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 . 
 
 5. — Parental p,nd quasi-parental Authority. 
 
 Autbority of parents a,nA persons In loco parentis. 
 
 Thus much of private quasi-judicial authority. There are 
 also several kinds of authority in the way of summary 
 
 ix) Tozer v. Child (1857), Ex. Gh. 7 E. (y) 6 & 7 Vict. u. 18, s. 82. As to pre- 
 & B. S77, 26 L. J. Q. B. 151, explaining siding officers nnder The Ballot Act, 
 AtKbu V. While, Ld. Baym. 938, and in 1 1872, Pickering t. James (1873) , L. K. 8 C. 
 Sm. li. C. ; and see the special report of P. 489, 12 L. J. C. P. 217 ; Ackers v. flow- 
 Holt's judgment pablisbed In 1837 and ard (1886), 16 Q. B. D. 739, 55 L. J. Q. B. 
 referred to in Tozer v. Child. There is 273. 
 some difference of opinion in America, 
 see Cooley on Torts, 413, 414. 
 
 Authority of parents and persons in loco parentis. A parent has 
 the right to correct his child by corporal punishment in a reasonable and 
 humane manner for the purpose of family discipline. State v. Jones, 
 95 N. C. 588; Johnson v. State, 2 Humph. 283; State v. Alford, 68 N. C. 
 322; People v. Cooper, 8 How. Pr. 288. 
 
 But it is not lawful for the parent to inflict unreasonable punishment 
 or permanent injury upon the child. Fletcher v. People, 52 111. 395; 
 Hinklec. State, 127 Ind. 490; 26 N. "E. Rep. 777; Commonwealth v. Cof- 
 fey, 121 Mass. 66; Neal v. State, 64 Ga. 281. 
 
 A step-father is in loco parentis. Gorman v. State, 42 Tex. 221. See 
 Snowden v. SUte, 12 Tex. App. 105; 41 Am. Rep. 667. 
 
 School teachers may inflict a reasonable measure of corporal punish- 
 ment if the right is exercised in good faith for the purpose of enforcing 
 discipline. Heritage v. Dodge, 64 N. H. 297; 9 At. Rep. 722; Dow- 
 len». State, 16 Tex. App. 61; Anderson v. State, 3 Head, 465; Cooper©. 
 McJunkin, 4 Ind. 290; Sheehan v. Sturgis, S3 Conn. 481; State v. Miz- 
 ner, 45 la. 248; 24 Am. Rep. 269; Deskins v. Gore, 85 Mo. 485; 56 Am. 
 Rep. 387; Danenhofer v. State, 69 Ind. 295; 395 Am. Rep. 216; Hathaway 
 V. Rice, 19 Vt. 102; Fertich v. Micherner, 111 Ind. 472. 
 
 But the teacher is responsible for any abuse of his authority. State 
 V. Vanderbilt, 116 Ind. 11; 18 N. E. Rep. 266; Lander v. Seayer, 32 Vt. 
 
150 GENERAL EXCEPTIONS. 
 
 force or restraint which the necessities of society require to 
 be exercised by private persons. And such persons are 
 protected in exercise thereof, if they act with g(iQ4sfaith 
 and in a re asonab le and n^odetate^ 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 (s). It 
 is needless to say more of this here, except that modern 
 civilization has considerably diminished the latitude of 
 what Judges or Juries are likely to think i-easonable and 
 moderate correction {a). 
 
 Of custodians o£ lunatics, etc. Persons having the 
 lawful custody of a lunatic, and those acting by their 
 direction, are Justified in using such reasonable and moder- 
 ate restraint as is necessary to prevebt the lunatic from 
 doing mischief to himself or others, or required, according 
 to competent opinion, as part of his treatment. This may 
 be regarded as a quasi-paternal power ; but I conceive the 
 
 (z) Blackstone, i. 452. See modem biit as a kasband and wife cannot in any 
 
 examples collected in Addison on Toits, case sue one another for assault In a 
 
 Jth ed. p. 145. civil conrt, this does not concern us. 
 
 (a) The ancient right of a husband to As to imprisonment of a wife bj' a hus- 
 
 beat his wife moderately (F. N. B. 80 F. band. Beg. v. Jaclcson, '91, 1 Q. B. 671, 80 
 
 239 A.) was discredited by Blackstone L. J. Q. B. 346, C. A. 
 (i. 445) and is not recognized at this day j 
 
 114; 76 Am. Dec. 156; Patterson u. Nutter, 78 Mo. 50; 8 Eastern Eep. 
 662; 57 Am. Eep. 818; ikorron B.Wood, 35 Wis. 69. 
 
 The hirer of convicts is not in loco parentis. Cornell u. State, 6 Left, 
 624; Prewitt v. State, 51 Ala. 33. 
 
 Nor is the keeper of an almshouse. State v. Hull, 34 Conn. 132. 
 Unless to preserve present order. State v. Neff, 58 Ind. 516. 
 
 Although the supreme court of North Carolina declared in State v. 
 Bhodes, (Phill. L. 453), that a husband has a right to whip his wife 
 with "a stick as large as his finger but not larger than his thumb," this 
 decision was in recognition of a barbarous custom which modern 
 authorities condemn. Fulgham v. State, 46 Ala. .143; State v. Oliver, 70 
 N. C. 60; Shackett ». Shackett, 40 Vt. 193; Gholston v. Gholston, 31 
 Ga. 625; Bdmond's App. 57 Pa. St. 232; Commonwealths. McAfee, '108 
 Mass. 458; 11 Am. App. 383. 
 
AUTHORITIES OF NECESSITY. 151 
 
 person entrusted with it is bound to use more diligence in 
 informing himself what treatment is proper than a parent 
 is bound (I mean, can be held bound in a court of law) to 
 use in studying the best method of education. The stand- 
 ard must be more strict as medical science improves. A 
 century ago lunatics were beaten, confined in dark rooms, 
 and the like. Such treatment could not be justified now, 
 though then it would have been unjust to hold the keeper 
 criminally or civilly liable for not having more than the 
 current wisdom of experts. In the case of a drunken 
 man, or one deprived of self-control by a fit or other acci- 
 dent, 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. 
 
 Of the master of a ship. The master of a inerchant 
 ship has by reason of necessity the right of using force to 
 preserve order and discipline for the safety of the vessel 
 and the persons and property on board. Thus, if he has 
 
 Of tbe master ol a ship. The authority of the master of a vessel to 
 punish those on board is limited to the preservation of tlis6ip)lne ^d the 
 ship's safety, and it must not be excessive.^ It is not co-extensive wit"h 
 the authority of a parent or schoolmaster. Bangi^ v. Little, 1 Ware, 606; 
 United States v. Alden, 1 Sprague, 95; Cushman v. Ryan, 1 Story, 01; 
 Turner's Case, 1 Ware, 83; Wilson v. The Mary, Gilp. 31 ; Michaelson v. 
 Dennison, .3 Day, '294; Brown v. Howard, 14 Johns. 119; Sampson v. 
 Smith, 15 Mass. 365; Henning ». Ball, 1 Bay, 3; Mathews v. Torrey, 10 
 Conn. 455; Allen v. Hallet, 1 Abb. Adm. 578; Payne v. Allen, 2 Sprague, 
 304; Schelter v. York, Crabbe, 499; Jay v. Alray, 1 Woodb. & M. 262; 
 Bdtler V. McLellan, 1 Ware, 219; Padmore v. Pietz, 44 Fed. Kep. 104; 
 Buddiington v. Smith, 13 Conn. 334. 
 
 Many of the foregoing cases contain extremes in the conduct of masters 
 and ttie opinions of courts which would hardly be sanctioned in this time 
 by a changed sentiment. ^ 
 
 • Upon the theory of "homicide by necessity " see Arp v. State (Ala.), 
 12 So. Kep. 301, where the authorities are collated and reviewed. 
 
152 GENERAL EXCEPTIONS. 
 
 reasonable cause to believe that any sailor or passenger is 
 'about to raise a mutiny, he may arrest and confine him. 
 The master may even be justified in a case of extreme 
 danger in inflicting punishment without any form of 
 inquiry. But " in all cases which will admit of the delay 
 proper for inquiry, due inquiry should precede the act of 
 punishment; and .... the party charged should have 
 the benefit of that rule of universal justice, of being 
 heard in his own defence" (6). In fact, when the 
 immediate emergency of providing for the safety and 
 discipline of the ship is past, the master's authority be- 
 comes a quasi-judicial one. There are conceivable circum- 
 stances 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 incidentally resulting from act not unlawful. 
 
 Thus far we have dealt with cases where some special rela-/ 
 tion of the parties justifies or excuses the intentional doing 
 
 (6) lK)Td Stowell, The AgirusowrUVSlii) further references see Maude andPol- 
 1 Hagg. 271, 274. Thisr judgment Is the look's Merchant Shipping, 4th ed. i. 127. 
 classical authority on the subject. For 
 
 Damage incidentally resulting from an act not unlawful. Upon 
 this gubject it is said by the court in Losee v. Bachanan (51 N. T. 484- 
 10 Am. Bep. 623): "By becoming a member of \civilized society, I am 
 compelled to give up many of my natural rights, but I receive more than 
 a compensation from the surrender of every other man of the same right, 
 and the security, advantage and protection vyhich the laws give me. So 
 too, the general rules that I may have the exclusive and undisturlieci use 
 and possession of my real estate, and that I must so use my real estate 
 as not to injure my neighbor, are much modified by the exigencies of the 
 social state." 
 1 For injuries from lawful acts done in a lawful manner the law gives no' 
 redress. There must be a concurrence of wrong and damage. Accord- 
 
ACTS AUTHORIZED BY STATUTE. 153 
 
 of things which otherwise would be actionable wrongs. 
 We now come to another and in some respects a more 
 interesting and difficult category. Damage suflFered in 
 consequence of an act done by another person, not for 
 that intent, but for some other purpose of his own, and 
 not in itself unlawful, may for various reasons be no 
 ground of action. The general precept of law is com- 
 monly stated to be " Sic utere tuo ut alienum non laedas." 
 If this were literally and universally applicable, a man 
 would act at his jferil whenever and wherever he acted 
 otherwise than as the servant of the. law. Such a state of 
 things would be intolerable. It would be impossible, for 
 example, to build or repair a wall, unless in the middle of 
 an uninhabited plain. But the precept is understood to be 
 subject to large exceptions. Its real use is to warn us 
 against the abuse of the more popular adage that " a man 
 has a right to do as he likes with his own " (c), which errs 
 much more dangerously on the other side. 
 
 (c) Cf. Gains (D. 50, 17, de dlv. reg. 55) : " NuUns videtnr dolo facere, qui smoinre 
 ntitnr." 
 
 Ingly It is said in Phelps v. Nowlen (72 N. Y. 46) : " The maxim sic iiJere 
 tuo est alienum non laedas applies only to cases where the act complained. 
 of violates some right, and an act legal in itself violating no right cannot 
 be made actionable upon the ground of the motive which induced it." 
 See National Copper Co. v. The Minnesota Mining Co., 67 Mich. 83; 
 Lord V. Carbon Iron Mfg. Co., 42 N. J. Eq. 147; Lachat v. Lutz (Ky.), 
 22 S. W. Rep. 218; Victory v. Baker, 67 N. Y. 366; Chatfleld v. Wilson, 
 
 28 Vt. 49; Kiff v, Youmans, 86 N. Y. 325; Burroughs v. Housatonic R. 
 Co., 15 Id. 124; Paxton v. Boyer, 67 111. 132; 16 Am. Rep. 615; Flint etc. 
 R. Co, V, Detroit etc. R. Co., 64 Mich. 350; 31 N. W. Rep. 281; Larmore 
 V. Crown Point Iron Co., 101 N. Y. 391; 4 N. B. Rep. 752; Bizzell u. 
 Brooker, 16 Ark. 308; Hey wood v. Tillson, 75 Me. 225; De Bawn v. Bean, 
 
 29 Hun, 236; Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126 j 
 Bollard v. Saratoga Victory Mfg. Co., 77 N. Y. 525; Williams v. Pomeroy 
 Coal Co.. 37 Ohio St. 583; Grand Rapids Street By. Case, 48 Mich. 433; 
 Watson V. City of Kingston, 114 N. Y. 88; 21 N. E. Rep. 102; Griffin v. 
 Ohio & M. Ry. Co., 124 Ind. 326; 24 N. E. Sep. 888. 
 
 A builder in a large city is responsible for greater care in construction 
 than would be required in the same work in the country. Gagg v. 
 Vetter, 41 Ind. 228; Hoyt v. Jeffers, 30 Mich. 381. 
 
154 GENERAL EXCEPTIONS. 
 
 There are limits to what a man may do with his own; 
 and if he does that which may be harmful to his neighbour, 
 it is his business to keep within those limits. Neither the 
 Latin nor the vernacular maxim will help us much, how- 
 ever, to know where the line is drawn. The problems 
 raised by the apparent opposition "of the two principles 
 must be dealt with each on its own footing. . We say 
 apparent; for the law has not two objects, but one, that is, 
 to secure men in the enjoyment of their rights and of 
 their due freedom of action. In its most general form, 
 therefore, the question is, where does the sphere of a man's 
 proper action end, and aggression on the sphere of his 
 neighbour's action begin? 
 
 Parnate from execution of authorized works. The 
 
 solution is least difficult for the lawyer when the question 
 has been decided in principle by a sovereign legislature. 
 Parliament has constantly thought fit to direct or authorize 
 the doing of things which but for that direction and 
 authority might be actionable wrongs. Now a man cannot 
 be held a wrong-doer in a court of law for acting in con- 
 formity with the direction or allowance of the supreme 
 
 Damage from execution of authorized works. The fifth amendment 
 to the constitution of the United States forbids that "private property 
 betaken lor public use without just compensation." In the constitu- 
 tions of probably all the States similar provisions are incorporated. In 
 construing these provisions the courts have generally held, that damages 
 not direct but merely incidental to the establishment of public works 
 under the power of eminent domain constituted damnum absque injuria. 
 To remove this hardship upon the property owners many of the states 
 have provided in their several constitutions that private property shall 
 not be " taken, damaged or destroyed " without compensation. See 
 Constitutions of Ala., Ariz., Cal., Colo., Ga., 111., La., Me., Mass., Mich., 
 Minn., Mo., Neb., Nev,, N. Y., N. J., E. S., Tex., Va., Vt., "W. Va. 
 
 Under these provisions, a property owner may recover for the dim- 
 inution in value of his property caused by the noise, smoke and vibration 
 incident to the operation of a railroad. Gainesville etc. E. Co. v. Hall, 
 78 Tex. 169j 14 S. "W. Eep. 259; Moses v. Manhattan E. Co., 58 Hun, 611; 
 13 N. Y. sjllep. 46; Omaha etc. R. Co. v. Janecek, 30 Neb. 276; 46 N. W. 
 Hep. 478; Fox v. Baltimore E. Co., 34 W. Va. 466; 12 S. B. Eep. 767. 
 
ACTS AUTHOKIZED BY STATUTE. 155 
 
 legal power in the State. lu other words " no action will 
 lie for doing that which the Legislature has authorized, if 
 it be done without negligence, although it does occasion 
 damage to any one." The meaning of the qualification 
 will appear immediately. Subject thereto, " the remedy- 
 of the party who suffers the loss is confined to recovering 
 such compensation " (if any) " as the 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 
 exercised is coupled, by the same authority that created it, 
 with a special duty to make compensation for incidental 
 damage. The authorities on this subject are voluminous 
 and discursive, and exhibit notable difl'erences of opinion. 
 Those differences, however, turn chiefly on the application 
 of admitted principles" to particular facts, and on the con- 
 struction of particular enactments. Thus it has been 
 disputed whether the compensation given by statute to 
 persons who are "injuriously affected" by authorized 
 railway works, and by the same statutes 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 ) . 
 
 No action for unavoidable damage. Apart from the 
 question of statutory compensation, it is settled that no 
 
 (d) Lord Blackburn, Geddis v. Pro- p: 293; Mersey Docks Trustees v. Gihbs 
 
 prietors of ISann liesemoir (1878), 3 App. (1864-6), L. R. 1 H. L. at p. 112. 
 Ca. at p. 455; Caledonian M. Co. v. (e) Hamimersmith It. Co. v. Brand 
 
 Walker's Trustees, (18S2), 7 App. Ca. at (1869), L. E. 4 H. L. 171, 38 L. J. Q. B. 265. 
 
 No action lor unavoidable damage. There are numerous American 
 railroad cases agreeing with the text. See Pennsylvania Co. etc. v. 
 Pennsylvania S. V. R. Co., 151 Pa. St. 334; 25 At. Rep. 107; 31 W. N. C. 
 30; Abbott ». Kansas City etc. R. Co., 83 Mo. 271 ; Dooley Block ». Salt Lake 
 
156 GENERAL EXCEPTIONS. 
 
 action can be o^aintaiued 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 by locomotive engines cannot 
 complain of the noise and vibration caused by trains pass- 
 ing and repassing in the ordinary course of traffic, however 
 unpleasant 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 {g). 
 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 naviga- 
 tion, though an incidental result of the navigation works 
 may be the growth of weeds and accumulation of silt to 
 the prejudice of riparian owners (A). 
 
 (/) HammersmUh R, Co. v. Brand, last (jr) Vaughan v. Taff Vale B. Co. (1860), 
 
 note, conflrming and extending Bev v. Ex. Oh. 5 H. & N. 679, 29 L. J. Ex. 247. 
 
 Pease (1832), 4 B. & Ad. 30, where certain See below in Ch. XII. So o£ noise made 
 
 members and serrants of the Stockton by pumps in -the authorized sinking of a 
 
 and Darlington Eallway Company were shaft near a man's land or house : Bwr- 
 
 indicted for a nuisance to persons risen v. Southwark and Vaiahall Water 
 
 using a high road near and parallel to Co., '91, 2 Ch. 409, 60 L. J. Ch. 630. 
 
 the railway. Lord Bramwell must have (A) CracJmell v. Corporation of Thet- 
 
 forgotten his authority when he said in ford (1869), L. E. 4 0. P. 629, 38 L. J. O.T. 
 
 the Court of Appeal that Rex v. Pease 353, decided partly on the ground that 
 
 was wrongly decided (5 Q. B. D. 601). the corporation were not even entitled 
 
 Rapids Transit Co. (Utah), 33 Pac. Eep'. 229; Dean ». Ann Arbor St. By. 
 Co., 93 rMicli. 330; 53 N. W. Kep. 396; Jones v. Brie& W. V. R. Co., 151 
 Pa. St. 30; 25 At. Rep. 184; 31 W. C. 1; Kansas N. & D. Ry. Co. v. 
 Maliler, 45 Kan. 565; 26 Pac. Rep. 22; Finch v. Riverside & A. Ry. Co., 
 87 Cal. 597; 25 Pac. Rep. 765; Ransom v. Citizens' Ry. Co., 104 Mo. 375; 
 16 S. W. Rep. 416. 
 
 In Hamilton ». Vicksburg etc. R. Co. (119 U. S. 280; affirming Escauba 
 V. Chicago, 107 U. S. 678) it was held, that where the building of a 
 bridge authorized by law was delayed by unusual rains and the work 
 thus unavoidably prolonged, plaintiff, whose vessel was thereby 
 prevented from passing beyond the bridge, suffered damnum absque 
 injuriU. See Cardwell v. American Brldgfe Co., 113 U. S. 205; Losee v. 
 Buchanan, 51 N. Y. 484; 10 Am. Rep. 623; Mills v. United States, 46 Fed. 
 Eep. 738; Kansas City, etc. R. Co. v. St. Joseph Terminal R. Co., 97 Mo, 
 -457; 10 S. W. Rep. 826. 
 
AUTHORIZED WORKS. 157 
 
 Care and caution required in exercise of discretionary 
 powers. But in order to secure this immunity the powers 
 conferred by the Legislature must be exercised without 
 
 to enter on land which did not belong to stiactlon of the particular statute there 
 
 them to remove weeds, &c., lor any pur- In question, Is Geddis v. Proprietors of 
 
 poses beyond those of the navigation. Baun Reservoir, 3 App. Ca. 430. Crack- 
 
 A rather similar case, bat decided the nell's case seems just on the line; cp. 
 
 other way In the last resort on the con- Biscoe v. O. E. R. Co. below. 
 
 Care and caution required in exercise of discretionary powers. It 
 is a settled principle that in the exercise of authority granted by law due 
 care must be used, and that negligence or excess therein invokes respon- 
 sibility for the results. Krug V. Burrough of Mary, 152 Pa. St. 30; 25 
 At. Kep. 161; Id. 152 Pa. St. 37; 25 At. Rep. 162; Martin v. Chicago, 
 etc., 47 Mo. App. 462; Leavenvrorth, N. & S. Ry. Co. v. Curtan (Kan.), 
 33 Pac. Rep. 297; McNulta v. Ralston, 5 Ohio Cir. Ct. Rep. 330; GriflSn 
 V. Shreveport & A.. R. Co., 41 La. An. 808; 6 So. Rep. 624; Pennsylvania 
 S. V. R. Co. V. Walsh, 124 Pa. St. 544; 17 At. Rep. 23 W. N. C. 421; City 
 of Durango ». Luttrell (Col.), 31 Pac. Rep. 853; City of Bloomington ». 
 Chicago & A. R. Co., 134 111. 451 ; 26 N. E. Rep. 366 ; Rockwood v. Wilson, 
 11 Cush. 221 ; Burcky v. Town of Lake, 30 111. App. 23; Georgetown etc. 
 R. Co. V. Doyle, 9 Col. 549; 30 Am. & Eng. R. Cas. 231 ; Brewer v. Bos- 
 ton etc. R. Co., 113 Mass. 52; Gudger v. Western etc. R. Co., 87 N. C. 
 325; 19 Am. & Eng. R. Cas. 144; Hazen v. Boston etc. Co., 2 Gray, 574; 
 Memphis etc. R. Co. ■;. Hicks, 5 Sneed (Tenn.), 427; Lake Shore etc. R. 
 Co. V. Hutcbins, 37 Ohio St. 282; 4 Am. & Eng. R. Cas. 219; Cairo etc. 
 R. Co. V. Worsley, 85 111. 37C; Brown v. Cayuga etc. R. Co., 12 N. Y. 486; 
 Shawo. New York etc. R. Co., 150 Mass. 182; 41 Am. & Eng. R. Cas.. 
 547. 
 
 A municipality is liable for the removal of latteral support when 
 the result is apparent and could have been prevented. Parke ». City of 
 Seattle, 5 Wash. St. 1; 31 Pac. Rep. 310; Stearns v. City of Richmond, 
 88 Va. 992; 14 S. E. Rep. 847; Nichols v. City of Duluth, 40 Minn. 389; , 
 42 N. W. Rep. 84; McCnllough v. St. Paul, M. & M. Ry. Co. (Minn.), 53 
 N. W. Rep. 802. 
 
 For damage resulting from the proper execution of lawful authority 
 no action lies. Sedalia Gaslight Co. v. Mercer, 48 Mo. App. 644; Bese- 
 man v. Pennsylvania B. Co., 42 N. J. L. 221; 20 At. Rep. 169; Durand v. 
 Borough of Ansonia, 57 Conn. 70 ; 17 At. Rep. 283 ; Iron Mountain R. 
 Co. V. Bingham, 3 Pick. (Tenn.) 522,; 11 S. W. Rep. 705; Bell v. Norfolk 
 S. R. Co., 110 N. C. 21; 7 S. E. Rep. 767; Jones v. St. Louis etc. Ry. 
 Co., 84 Mo. 151; Slattern v. Des Moines etc. R. Co., 29 la. 154; 4 Am. 
 Rep. 206; Richardson v. "Vermont etc. R. Co. 25 Vt. 465; 60 Am. Dec. 
 283; Ellis v. Iowa City, 29 la. 229; Hatch v. Vermont Cent. R. Co., 29 
 Vt. 49; Dodge v. Essex Co., 3 Mete. 380. 
 
158 GENERAL EXCEPTIONS. 
 
 negligence, or, as it is perhaps better expressed, with 
 judgment and caution (e). For damage which could not 
 have been avoided by any reasonably practicable care on 
 the part of those who are authorized to exercise the power, 
 there is no right of action. But they must not do needless 
 harm ; and if they do, it is a wrong against which the 
 ordinary remedies are available. If an authorized railway 
 comes near my house, and disturbs me by the noise and 
 vibratiop 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 tp 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 Legislature 
 " directs that a thing shall at all events be done " Q), 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 wliich is by statute empowered to set up 
 hospitals within a certain area, but not empowered to set 
 up a hospital on any specified site, or required to set up 
 any hospital at all, is not protected from liability if a 
 hospital established under this power is a nuisance to the 
 neighbors (m). And even where a particular thing is 
 required to be done, the Wrden of proof is on the person 
 who has to do it to show that it cannot be done without 
 
 (i) Per Lord Truro, L. ^ N. W. B. Co. (Z) 6 App. Ca. 203. 
 
 V. Bradley (1851) , 3 Mac. & 6. at p. 841. (i») Metropolitan Asylum District v. 
 
 (ft) JSiacoe v. G. E. B. Co. (1873), 16 Eq. Bill (1681), 6 App. Ca. 183.' 
 
AUTHORIZED WORKS. 159 
 
 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 
 company, 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 in the occu- 
 pation 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 particular places or times) 
 is incidental to the general purposes 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 adjoin- 
 ing occupiers (^p). Such a case falls within the principle 
 not of Metropolitan Asylum District v. Hill, but of Bex 
 V. Pease. ', 
 
 A gas company was authorized by statute to have its 
 pipes laid under certain streets, and was required to supply 
 gas to the inhabitants. The vestry, being charged by 
 statute with the repair of the streets, but not required 
 or authorized to use any special means, used steam rollers 
 of such weight that the company's pipes were often 
 broken or injured by the resulting pressure through the 
 soil. It was held that, even if the use of such rollers was 
 in itself the best way of repairing the streets in the interest 
 of the ratepayers and the public, the act of the vestry was 
 wrongful as against the gas company, and was properly 
 restrained by injunction (5-). 
 
 (») Attorney- General v. Gaslight and Ch. 354, reversing the 4ecision of the 
 
 Coke Co. aiTJ), 7 Ch. D. 217, 221, 47 L. J. Court of Appeal, 29 Ch. Div. 89. 
 Qlj. 534, (g) Gaa Light and Coke Co. v. Vestrt/ 
 
 (o) Eajmohun Bose v. East India R. of St. Mary Abbott's (1885), 15 Q. B. Dlv. 
 
 Co. (High Conrt, Calcutta), 10 Ben. L.K. 1, 54 L. J. Q. B. 414. The Court also- 
 
 241. Ou. whetherthlsbe conslstentwith relied, but only by wav of confirmation, 
 
 the case next cited. on certain speola 1 Acts dealing with the 
 
 (p) London and Brighton B. Co. V. relations between the vestry and the 
 
 Trunum (1885), 11 App. Ca. 45, 55 L. J. company. See 15 Q. B. D. at p. 6. 
 
'y 
 
 160 GENERAL EXCEPTIONS. 
 
 " 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 authority given by the Act 
 , may be an authority which falls short of authorizing a 
 nuisance. It may be an authority to do certain works 
 provided that they can be done without causing a nuisance, 
 and whether the authority falls within that category is 
 again a question of construction. Again the authority 
 given by Parliament may be to carry out the works with- 
 out a nuisance, if they can be so carried out, but in the 
 last resort to authorize a nuisance if it is necessary for the 
 construction of the works" (r). 
 
 An authority accompanied .by compulsory powers, or to 
 be exercised, concurrently with authorities ejusd&tn generis 
 which are so accompanied, will, it seems, be generally 
 treated as absolute ; but no single test can be assigned as 
 decisive (s). 
 
 8. — Inevitable Accident. 
 
 Inevitable accident resulting from lawful act. In the 
 
 cases we have just been considering the act by which the 
 damage is caused has been specially authorized. Let us 
 now turn to the class of cases which differ from these in 
 that the act is not specially authorized, but is simply an 
 act which, in itself, a man may lawfully do then and there ; 
 or (it is perhaps better to say) which he may do without 
 breaking any positive law'. We shall assume from the first 
 that there is no want of reasonable care on the actor's part. 
 For it is undoubted that if by failure in due care I cause 
 harm to another, however innocent my intention, I am 
 liable. This has already been noted in a general way (t). 
 No less is it certain, on the other hand, that I am not 
 
 (r) Bowen L. J., 29 Ch. D. at p. 108. opinion in London and P,rigIUon S. Co. v. 
 
 (s) See especially Lord Blackburn's Truman. 
 
 (0 P. 32, above. 
 
INEVITABLE ACCIBENT. 161 
 
 answerable for mere omission to do anything which it was 
 not my specific duty to do. 
 
 It is true that the very fact of an accident happening is 
 commonly some evidence, and may be cogent evidence, 
 of want of due care. But that is a question of fact, and 
 there remain many cases in which accidents do happen 
 notwithstanding that all reasonable and practicable care is 
 used. Even the "consummate care" of an expert using 
 special precaution in a matter of special risk or impor- 
 tance 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- 
 Conditions of the Inquiry. The question, then, is 
 reduced to this, whether an action lies against me for harm 
 resulting by inevitable accident from an act lawful in itself, 
 and done by me in a reasonable and careful manner. In- 
 evitable accident is not a verbally accurate term, but can 
 hardly mislead; it does not mean absolutely inevitable 
 (for, by the supposition, I was not bound to act at all), 
 but it means not avoidable by any such precaution as a 
 reasonable man, doing such an act then and there, could be 
 expected to take. In the words of Chief Justice Shaw of 
 Massachusetts, it is an accident such as the defendant could 
 not have avoided by use of the kind and degree of care 
 necessary to the exigency, and in the circumstances, in 
 which he was placed. 
 
 On principle such action excludes liability. It may 
 
 seem to modern readers that only one solution of the 
 problem thus stated is possible, or rather that there is no 
 problem at all («). No reason is apparent for not accept- 
 
 («) This, at any rate, Is the view of 174; Holmes v. Mather, L. E. 10 Ex. at p. 
 modem juries ; see Nichols v. Marsland 262. 
 (1875), L. E. 10 Ex. at p. 256, 16 L. J. Ex. 
 
 11 
 
162 GENERAL EXCEPTIONS. 
 
 ing 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 ; 
 j moreover we do not nowadays expect a reasonable man to 
 be angry without inquiry. He will not assume, in a case 
 admitting of doubt, that his neighbour harmed him by 
 design 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 ho fault of his own. For the doing 
 of a thing lawful in itself with due care and caution can- 
 not be deemed any fault. If the stick which I hold in my 
 hand, and am using in a reasonable manner and with rea- 
 sonable 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 (v). If wego^^^^acE* 
 enough, indeed, we shall find a time and an order of ideas 
 in which the thing itself that does damage is primarily 
 liable, so to speak, and through the thing its owner is 
 made answerable. That order of ideas was preserved in 
 the noxal actions of Eoman law, and in our own criminal 
 law by the forfeiture of the offending object which had 
 moved, as it was said, to a man's death, under the name of 
 deodand. But this is matter of history, not of modern 
 legal policy. So much we may concede, that when a 
 man's act is the apparent cause of mischief, the burden of 
 proof is on him to show that the consequence was not one 
 which by due diligence he could have prevented Cjc). But 
 
 (») TrespasB for . assault by striking C. & K. 358 (before Eolfe B.). This, if it 
 
 the plaintiff with a stick thrown by the oonld be accepted, would prove more 
 
 defendant. Plea, not guilty. The jury than is here contended for. But it Is 
 
 were directed that, in the absence of evidently a rough and ready summing- 
 
 evidence for what purpose the defend- up given without reference to the 
 
 *nt threw the stick, they might conclude books. 
 
 it was for a proper purpose, and the (x) Shaw O. J." would not concede 
 
 striking the plaintiff was a mere acci- even this in the leading Massachusetts 
 
 dent for which the defendant was not case of Brawn v. KendaU, 6 Cash, at p. 
 
 answerable ; Alderaon v. Waistell (1844), 1 297. 
 
INEVITABLE ACCIDENT. 163 
 
 SO does (and must) the burden of proving matter of justifi- 
 cation or excuse fall in every case on ths person taking 
 advantage of it. If he were not, on ihe first impression of 
 the facts, a wrong-doer, the justification or excuse would 
 not be needed. 
 
 Apparent conflict of authorities. We believe that our 
 modern law supports the view now indicated as the rational 
 one, that inevitable accident is not a ground of liability. 
 But there is a good deal of appearance of authority in the 
 older books for the contrary proposition that a man must 
 answer for all direct consequences of his voluntary acts at 
 any rate, or as Judge ®. W. Holmes (y) has put it " acts 
 at his peril." Such seems to have been the early Germanic 
 law (z), 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 examination 
 that no actual decision goes the length of the dicta which 
 embody this opinion. In almost every case the real ques- 
 tion turns out to be of the form of action or pleading. 
 Moreover, there is no such doctrine in Roman or modern 
 Continental jurisprudence (a); and this, although for us 
 not conclusive or even authoritative, is worth considering 
 whenever our own authorities admit of doubt on a point of 
 general principle. And, what is more important for our 
 purpose, the point has been decided in the sense here con- 
 tended for by Courts of the highest authority in the 
 
 (y) See on the whole of this matter ceditnr." Bat varioas explanations of 
 
 Mr. Justice Holmes's chapter on " Tres- this are possible. Perhaps it shows '' 
 
 pass and Negligence." what kind of oases are referred to by 
 
 (z) Hensler, Inst, des dentschen the otherwise unexplained dictum of 
 
 Friyatrecbts, li. 263; LI. Hen. Frlmi, c. Ulplau in the preceding fragment, " in 
 
 88 § 6, 90 § 11 ; see p. 129, below. lege Aquilia et levlsslma culpa venit." 
 
 (aj"lnpnnitusest qui sine culpa etdolo Paulas himself says there is no iniuria 
 
 malo casa quodam damnum committit." if the master of a slave, meaning to 
 
 Gal. 3. 211. Paulas indeed says iDr^9. 2, strike the slave, accidentally strikes a 
 
 ad legem Aqulllam, 45, § 4),J^i defend- freeman: D. 47. 10, de iniurils, 4. Ac- 
 
 endi mel causa la^^gpflS'^versarinm cording to the current English theory of 
 
 misero, sed n^g^Hn^ed praeterenntem the 16th-18th centuries an action on the 
 
 percusserg^^Setior lege Aquilia j ilium case would not lie on such facts, but 
 
 enim eoWm qui vim intert ferire con- trespass m et ormis would. . 
 
164 GENERAL EXCEPTIONS. 
 
 United States. To these decisions we shall first call 
 attention. 
 
 American decisions; The Kltro-glycerine Case. In 
 The Nitro-glycerine Case (6) the defendants, a firm of 
 
 (6) 15 WaU. 524(1872). 
 
 Inevitable accident resulting from lawful act. An unexpected injury 
 caused by operation of nature or by a person without intention or neg- 
 ligence is an accident. 
 
 In the case of Morris v. Piatt C32 Conn. 75, post, p. 161), accidents are 
 classified by the court, as follows : "In the first class are all those which 
 are inevitable or absolutely unavoidable, because effected or influenced by 
 uncontrollable operations of nature ; in the second class are those which 
 result from human agency alone, but were unavoidable under the drcwm- 
 stances; and the third class, those which were avoidable, because the act 
 was not called for by any duty or necessity and the injury resulted from 
 the want of extraordinary care which the law reasonably requires from 
 one doitig such a lawful act, or because the accident was the result of 
 actual folly, and might with reasonable care adapted to the exigency 
 have been avoided." It is well established law that for damage caused 
 by a lawful accident no recovery can be had. Strouse v. Whttleey, 41 
 Conn. 669; DeFrancis v. Spencer, 2 Greene (Iowa), 462; Schneider e. 
 Provident etc. Co., 24 Wis. 28; Gault o. Humes, 20 Md. 304; Worheide 
 V. Missouri C. & T. Co., 32 Mo. App. 367 ; Brown v. Collins, 68 N. H. 442 ; 
 Schroeder v. Michigan Car Co., 56 Mich. 132; Lewis v. Hint & P. M. Ey. 
 Co., 54 Mich. 55; Bichards v. Eough, 63 Mich. 212; Gould v. Stater 
 Woolen Co., 147 Mass. 315; 17 N. E. Rep. 531; Allison Mfg. Co. v. Mc- 
 Cormick, 118 Pa. St. 619 ; 12 At. Rep. 273; McCauley v. Logan, 152 Pa. St. 
 202; 25 At. Rep. 490; 31 W. N. C. 437; Chicago etc. Ry. Co. v. Becker, 
 38 111. App. 523; Grant ». Union Pac. Ey. Co,., 45 Fed. Rep. 673; Klupp v. 
 United Ice Lines, 15 N. Y. S. Rep. 597 ; McCaffrey v. Twenty-third St. E. 
 Co., 47 Hun, 404; Haskins v. Stewart, 57 Hun, 380; 10 N. Y. S. Rep. 833; 
 Brown V. Boom Co., 109 Pa. St. 57; 1 At. Rep. 166; Lansing v. Stone, 37 
 Barb. 16; Wabash etc. Ry. Co. v. Locke, 112 Ind. 404; 14 N. E. Rep. 
 391; Frost v. Grand Trunk E. Co., 10 Allen, 387; Kohn v. Lovett, 44 Ga. 
 251 i Cahils v. Layton, 57 Wis. 600 ; Burton v. Davis, 15 La. An. 448 ; 
 Slkes V. Sheldon, 68 la. 744; Wright v. Clark, 50 Vt. 130; 28 Am. Rep. 
 496; Nelson v. Chicago etc. Ry. Co., 30 Minn. 47. 
 
 In Standard Oil Co. v. Tierney (Ky.— 17 S. W. Rep. 1026), a shipper of 
 a quantity of naptha was held to be bound to so mark the barrels that 
 the employes of the carrier, in the exercise of ordinary prudence, would 
 ascertain the explosive nature of the goods; and whether the brand 
 mentioned was sufficient for its purpose was a question for the jury. 
 
AMERICAN CASES ON ACCIDENT. 165 
 
 carriers, received a wooden case at New York to be carried 
 to California. " Tiiere was nothing in its appearance cal- 
 culated 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 plaintiff) for examination. A servant of the defend- 
 ants proceeded to open the case with a mallet and chisel. 
 The contents, being in fact nitro-glycerine, exploded. All 
 the persons present were killed, and much property de- 
 stroyed and the building damaged. The action was brought 
 by the landlord for this last-mentioned damage, including 
 that suffered by parts of the building let to other tenants 
 as well as by the offices of the defendants. Nitro-glycerine 
 had not then (namely, in 1866) become a generally known 
 article of commerce, nor were its properties well known. 
 It was found as a fact that the defendants had not, nor had 
 any of the persons concerned in handling the case, knowl- 
 edge 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 received 
 and handled, and in the mode that men of prudence engaged 
 in the same business would have handled cases having a 
 similar appearance in the ordinary course of business when 
 it^norant of their contents." The defendants admitted 
 their liability as for waste as to the premises occupied by 
 them (which in fact they repaired as soon as possible after 
 the accident), but disputed it as to the rest of the building. 
 
 Doctrine of Supreme Court ; no liability for accidental 
 result of lawful act without negligence. The Circuit 
 Court held the defendants were not further liable than they 
 had admitted, and the Supreme Court of the United States 
 affirmed the judgment. It was held that in the first place 
 
166 GENERAL EXCEPTIONS. 
 
 the defendants were not bound to know, in the absence of 
 reasonable grounds of suspicipn, the contents of packages 
 offered them for carriage ; and next, that without such 
 knowledge in fact and without negligence they were not 
 liable for damage caused by the accident (c). " No one is 
 responsible for injuries resulting from unavoidable acci- 
 dent, whilst engaged in a lawful business The 
 
 measure of care against accident which one must take to 
 avoid responsibility is that which a person of ordinary pru- 
 dence and caution would use if his own interests were to 
 be affected and the whole risk were his own." 
 
 Brown v. Kendall (Massachusetts). The Court pro- 
 ceeded to cite with approval the case of Brown v. Kendall 
 in the Supreme Court of Massachusetts (d). There the 
 plaintiff's and the defendant's dogs were fighting ; the 
 defendant was beating them in order to separate them, 
 and the plaintiff looking on. " The defendant retreated 
 backwards from before the dogs, striking them as he 
 retreated; and as he approached the plaintiff, with his 
 back towards him, in raising his stick over his shoulder 
 in order to strike the dogs, he accidentally hit the 
 plaintiff in the eye, inflicting upon him a severe in- 
 jury." The action was trespass for assault and battery. 
 It was held that the act of the defendant in itself " was a 
 lawful and proper act which he might do by proper and 
 safe means;" and that if " in doing this act, using due 
 care and all proper precautions necessary to the exigency 
 of the case to avoid hurt to others, in raising his stick for 
 that purpose, he accidentally hit the plaintiff in the eye and 
 wounded him, this was the result of pure accident, or was 
 involuntary and unavoidable (e), and therefore the action 
 
 (c) The plaintiff's proper remedy (<J) 6 Gush. 292 (1850). 
 
 would have been against the consignor (e) The consequence was involuntary 
 
 who despatched the explosive without or rather unintended, though the act 
 
 Informing the carriers of its nature. itseW was voluntary; and it was also 
 
 See Lyell v. Gimga Dai (1876), Indian unavoidable, t. «. not preventable by 
 
 Law Bep. 1 All. 60. reasonable diligence. 
 
AMERICAN CASES ON ACCIDENT. 167 
 
 would not lie." All that could be required of the defend- 
 ant was " the exercise of due care adapted to the exigency 
 of the case." The rule in its general form was thus ex- 
 pressed : "If, in the prosecution of a lawful act, a casualty 
 purely accidental arises, no action can be supported for an 
 injury arising therefrom." 
 
 Other Americaa cases: contrary opinion in Castle v. 
 Duryee (N. Y. ). There have been like decisions in the 
 Supreme Courts of New York {f) and Connecticut. And 
 these rulings appear to be accepted as good law throughout 
 the United States (g'). The general agreement of American 
 authority and opinion is disturbed, indeed, by one modern 
 case in the Court of Appeal of New York, that of Castle 
 V. Duryee (A). But the conflicting element is not in the 
 decision itself, nor in anything 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 under 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 line and about 350 feet 
 from it. Upon one of the discharges the plaintiff was 
 wounded by a bullet, which could be accounted for only by 
 one of the men's pieces having by some misadventure been 
 loaded with ball cartridge. It appeared that one company 
 had been at target practice an hour or two before, and that 
 at the end of the practice arms had been examined in the 
 usual way (e), and surplus ammunition collected. More- 
 over, arms had again been inspected by the commanding 
 officers 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 
 
 (/) Harvey v. Sunlap, Lalor 193, cited was in tlie days of muzzle-loaders. A 
 
 15 Wall. 639; Jifor™ V. Pia«,32 0onn. 75. like accident, however, happened not 
 
 (g) Oooley on Torts, 80. many years ago at an Aldershot field 
 
 (h) 2 Keyes, 169 (1865). day, fortunately without hurt to any 
 
 (i) It will be remembered that this one. 
 
168 GENERAL EXCKPTIONS. 
 
 nature of trespass for an assault." A verdict for the 
 plaintiff was ultimately affirmed on appeal, the Court being 
 of opinion 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 " (_;), is required of persons dealing with dangerous 
 weapons. The Chief Judge added that, as the injury was 
 the result of an act done by the defendant's express com- 
 mand, the question of negligence was immaterial. But 
 this was only the learned Judge's individual opinion. It 
 was not necessary to the decision, and there is nothing to 
 show that the rest of the Court agreed to it {h). 
 
 K English authorities: cases of trespass and shooting. 
 
 We may now see what the English authorities amount to. 
 They have certainly been supposed to show that inevitable 
 accident is no excuse when the immediate result of an act is 
 complained of. Erskine said a century ago in his argu- 
 ment in the celebrated case of The Dean of St. Asaph (I) 
 (and he said it by. way of a familiar illustration of the dif- 
 ference between criminal and civil liability) that " if a man 
 rising in his sleep walks into a china shop and breaks every- 
 thing about him, his being asleep is a complete answer to an 
 indictment for trespass (m), but he must answer in an action 
 for everything he has broken . " And Bacon had said earlier 
 to the same purpose, that " if a man be killed by misad- 
 
 (J) Erie C. J. obiter. In Potter v. Faulk- (J) 21 St. Tr. 1022 {A. D. 1783). 
 
 ner, 1 B. & S. at p. 805, 31 L. J. Q. B. 30; (m) Would an indictment ever lie for 
 
 IHxon T. Bell, 5 M. ^ S. 198. simple trespass? I know not of any au- 
 
 (k) The reporter adds this significant thority that It would, though the action 
 
 note : " The Court did not pass upon the of trespass origlnaUy had, and retained 
 
 first branch of the case, discussed by the in form down to modern times, a public 
 
 Chief Judge, as to the question of the and penal character, 
 general liability of the commanding 
 ofBoer." 
 
INEVITABLE ACCIDENT. 169 
 
 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 pro- 
 pounded. For walking in one's slieep is not a voluntary act 
 at all, though possibly an act that might have been pre- 
 vented : and the practice of archery was, when Bacon 
 wrote, a positive legal duty under statutes as recent as 
 Henry VIII. 's timg, though on the other hand shooting is 
 an extra-hazardous act (o). We find the same statement 
 about accidents in shooting at a mark in the so-called laws 
 of Henry I. {p), and in the arguments of counsel in a case 
 •in the Year-Book pf Edward IV., where the general ques- 
 tion was more or less discussed (q). Brian (then at the 
 bar) gave in illustration a view of the law exactly contrary 
 to that which was taken in Brown v. Kendall. But the 
 decision was only that if A. cuts his hedge so that the cut- 
 tings ipso invito fall on,B.'s land, this does not justify A. 
 in entering on B.'s land to carry them off. 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 v. Ward. Another case usually cited is Weaver 
 V. Ward (r). The plaintiff and the defendant were both 
 members of a train-band exercising with powder, and the 
 plaintiff was hurt by the accidental discharge of the defend- 
 ant's piece. It is a very odd case to quote for the doctrine 
 
 (n) Maxims of the Law, Keg. T, follow- eum; legis enim est, qnl tnsoienter pee- 
 ing the dictum of Eede J. in 21 Hen. VII. cat, scienter emendet." O. 90 § U adds 
 28. We site Bacon, not as a writer of an English form of the maxim : "etqni 
 authority, hat as showing, like Ersklne, breoht ungewealdes, bete gewealdes." 
 the average legal mind of his time. (g) 6 Edw. FV. 7, pi. 18 ; O. W. Holmes, 
 (0) O. W. Holmes, 103. 85; of. 21 Hen. vn. 27, pi. 5, a case of 
 (p)C.88§6. " Si quls in ludo saglt- trespass to goods which does not really 
 tandi vel alicuius exercltli iacnlo vel raise the question, 
 hniusmodl casu allquem occidat, reddat (r) Hob. 134, A. D. 1616. 
 
170 GENEKAL EXCEPTIONS. 
 
 of absolute liability, for what was there holden 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 prop- 
 erly bring before the Court the question whether the acci- 
 dent was inevitable. A later case (s), 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 occurred 
 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. According to Wilson's report, 
 inevitable accident was allowed by all the judges to be an 
 excuse. But Blackstone's judgment, according to his own 
 report, says that nothing but " inevitable necessity " will 
 serve, and 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 to 
 represent the view which he thought the more favorable 
 to. his own dissenting judgment. His theory was that 
 
 (s) Dickeson v. Watson, Sir T. Jones, the judgment of the Court. At most, 
 
 206, A. D. 1682. Lambert v. Bessey, T. therefore, his illustrations are evidence 
 
 Eaym. 421, a case of false imprisonment of the notions current at the time, 
 in the same period, cites the foregoing (f) Underwood v. Seivson, 1 Strange, 
 
 authorities, and Raymond's opinion cer- 596, A. D. 1723 (defendant was unooek- 
 
 talnlyaBBumes the view that inevitable Ingagnn, plaintlfflookingon). It looks 
 
 accident is no excuse even when the act very like contributory negligence, or at 
 
 is one of lawful self-defence. . But then any rate voluntary exposure to the risk, 
 
 Raymond's opinion is a dissenting one: on the plaintiff's part. But the law of 
 
 8. C. nom. Bessey v. Olliott, T. Eaym. negligence was then quite undeveloped. 
 467; being given in tlie former place (m) Scott y. Shepherd (Xn%), 2 W. BI. 
 
 alone and without explanation, it has 892, 3 Wils.403. 
 apparently been sometimes taken for 
 
INEVITABLE ACCIDENT. 171 
 
 liability in trespass (as distinguished from an action on the 
 case) is unqualified as regards the immediate consequences 
 of a man's act, but also is limited to such consequences. 
 
 Ijeame v. Bray. Then comes Leame v. Bray (x), a 
 comparatively modern case, in which the defendant's chaise 
 had run into the plaintiff's curricle on a dark night. The 
 defendant was driving on the wrong side of the road; 
 which of itself is ^ant 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 accident was no 
 excuse, but this was extra-judicial. Two generations later, 
 in Rylands v. Fletcher, Lord Cranworth inclined, or more 
 than inclined, to the same opinion {y). Such is the 
 authority for the doctrine of strict liability. Very possibly 
 more dicta to the same purpose might be collected, but I 
 do not think anything of importance has been left out {z). 
 Although far from decisive, the weight of opinion conveyed 
 by these various utterances is certainly respectable. 
 
 Cases where exception allowed. On the other hand we 
 have a series of cases which appear even more strongly to 
 imply, if not to assert, the contrary doctrine. A. and B. 
 both set out in their vessels 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 arid sea driving 
 B.'s against it. On such facts the Court of King's 
 Bench held in 1770 that A» could not maintain tres- 
 pass, " being of opinion that the original act of the 
 
 (jc) 3 East, 593 (A. D. 1803). a qnarrel with B. struct 0. Nothing 
 
 iy) (1868) L. R. 3 H. L. at p. 341. shows that A. would have been justifled 
 
 («) Sometimes the case of Jaines v. or excused in striking B. And IC the 
 
 Campbell (1832), 5 C. & P. 372, Is cited in blow he Intended was not lawful, it was 
 
 this connexion. But not only Is it a clearly no excuse that he struck the 
 
 Nisi Prlus case with nothing particular wrong man (p. 29 above, and see Jt. v. 
 
 to recommend it, but it Is Irrelevant. Latimer (1886). 17 Q, B. D. 359, 55 L. J. 
 
 The facts there alleged were that A. In M, C. 135). 
 
172 GENERAL EXCEPTIONS. 
 
 defendaots was not unlawful" (a). Quite early in the 
 century it had been held that if a man's horse runs 
 away with him, and runs over another man, he is not 
 even prima facie a trespasser, so that under the old 
 rules of pleading it was wrong to plead specially in justifi- 
 cation (S). 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 mis- 
 direction in not putting it to the jury whether the accident 
 was the result of negligence or not. In 1842 this declara- 
 tion 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. Mather. Lastly, we have two decisions well 
 within our own time which are all but conclusive. 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 beat 
 he could ; at last he failed to get them clear round a corner, 
 and they 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 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 
 
 (o) Davis V. Saumden, 2 CMtty, 639. (<J) H(M v. FeamUy (1812), 3 Q. B. 919, 
 
 (6) Gibbons v. Pepper, X Lord Baym. 12 L. J. Q. B, 22. Ttte line between this 
 
 38. and CUbbona v. P^per is rather fine, 
 
 (c) 1 Blng. 213 (1823). The argument (e) L. B. 10 Ex. 261, H L. J. Ex. 176 
 
 for the defendant seemB to have been (1875). 
 
 very well reasoned. 
 
INEVITABLE ACCIDENT. 173 
 
 argued, on the authority of the old cases and dicta, that a 
 trespass had been committed. The Court refused to take 
 this view, but said nothing about inevitable accident in 
 general. " For the convenience of mankind in carrying on 
 the affairs of life, people as they go along roads must ex- 
 pect, 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 of public roads. The same idea is ex- 
 pressed in the judgment of the Exchequer Chamber in 
 Uplands 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 "(^). 
 
 Stanley v. Powell. More lately, in Stanley v. Powell 
 (/^), Denman J. came, on the English authorities alone, to 
 the conclusion above maintained, namely that, where neg- 
 ligence is negatived, an action does not lie for injury 
 resulting by accident from another's lawful act. 
 
 Conclusion. These decisions seem good warrant for 
 saying that the principle of The Nitro-glycerine Case and 
 Brown v. Kendall is how part of the common law in 
 England as well as in America. All this injury may be 
 thought to belong not so much to the head of exceptions 
 from liability as to the fixing of the principles of liability 
 in the first instance. But such an inquiry must in practice 
 always present itself under the form of determining 
 whether the particular circumstances exclude liability for 
 
 (f) Bramwell B. at p. 267. glanced from a bough and wounded the 
 
 (^) L. R. 1 Ex. at pp. 286, 287. But see plaintiff's eye). A point might have 
 
 per Lord Halsbnry In Smith v. Baker, '91, been made for the plaintiff, but appar- 
 
 A. C. 325, 337, 60 L. J. Q. B. 683. ently Vras not, on the " extra-hazard- 
 
 (ft) '91, 1 Q. B. 86, 60 L. J. Q. B. 52. ous" character of fire-arms. 
 This was a shooting ease (a pellet 
 
174 GENERAL EXCEPTIONS. 
 
 an act or consequepce 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. 
 
 Iminiinlty in exercise of common rigbts. We have 
 just left a topic not so much obscure in itself as obscured 
 by the indirect and vacillating treatment of it in our 
 authorities. That which we now take up is a well settled 
 one in principle, and the difiiculties have been only in fix- 
 ing 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. Competitions in 
 business is the most obvious example. If John and Peter 
 are booksellers in the same street, each of them must to 
 some extent diminish the custom and profits of the other. 
 So if they are shipowners 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 com- 
 panies 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 
 
 Immunity in exercise ol common rights. Closely aoalogous to this 
 subject in their application are the cases cited under Damage Incident- 
 ally Resulting from an Act not Unlawful, ante, p. 152. 
 
EXERCISE OF RIGHTS. 175 
 
 could not go on if we did not, as the price of our own free 
 action, abide some measure of inconvenience from the 
 equal freedom of our neighbours. In these matters veniam 
 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 (i). 
 It is chiefly in this class of cases that we meet with the 
 phrase or formula damnwn sine iniuria ; a form of words 
 which, like many other Latin phrases and maxims, is too 
 often thought to ^erve for an explanation, when in truth 
 it is only an abridgment or momoria technica of the things 
 to be explained. It is also of doubtful elegance as a 
 technical phrase, though in general Latin literature iniuria 
 no doubt had a sufficiently wide meaning (k). In English 
 usage, however, it is of long standing (/). 
 
 The case of Gloucester Grammar School. A classical 
 illustration of the rule is given by a case in the Year-Book 
 of Henry IV., which has often been cited in modern books, 
 and which is still perfectly good authority (m). The 
 
 (t) A.-G.Y. Tomline (laso) , U Oh. Dlv. caius dolo ailt cnlpa id accidQrit, neo 
 
 58, 49 L. J. Oh. 377, is a curious case, bat ulla alia lege damnum quod sine iniuria 
 
 does not make any real exception to datnr reprehendltur." This shows that 
 
 this. It shows tl^at (1) the Crown as " damnum sine iniuria dare " was a oor- 
 
 owner of foreshore has duties for the rectif not a common phrUse: though it 
 
 protection of the land, though not en- could never have for Gains or Ulpian 
 
 f orceable duties ; (3) those duties, where the wide meaning "of harm [of any 
 
 the Crown rights have become vested in kind] which gives no cause of action." 
 
 a eubject, are laid upon and may be en- " Damnum sine iniuria " standing alone 
 
 forced against that subject. as a kind of compound noun, according 
 
 (jfe) Ulpian wrote (D. 9. 1, si quad- to the modern use, is hardly good Latin, 
 
 rapes, 1, § 3): "Pauperies est damnum (I) Bracton says, fo. 221 a: "Si quis 
 
 sine Iniuria faclentls datum, nee enlm in fundo proprlo oonstruat aliquod 
 
 potest animal iniuria feoisse, quod sensu molendinum, ot sectam suam et allorum 
 
 caret." This is a very special context, vicinoram subtrahat yicino, facit vicino 
 
 and Is'far from warranting the use of damnum etnoniniuriam." •' Dampnum 
 
 " damnam sine Iniuria" as a common sine iniuria" occurs in 7 Ed. III. 65, pi. 
 
 formula. Being, however, adopted m 67, "damnam absque iniuria" In 11 
 
 the Institutes, 1, 9, pr. (with the unidlo- Hen. IV. 47, pi. 21 (see below), 
 
 matio variant "iniwriam feoisse"), it (m) Hil. 11 Hen. IV. 47, pi. 21 (A. D, 
 
 probably became, through Azo, the ori- 1410-11). In the coarse of argument the 
 
 gin ot the phrase now current. In Gains opinion is thrown out that the education 
 
 3. 211 (on the lex Aquilia) we read: of children is a spiritual matter, and 
 
 " Iniuria antem oocldere Intellegltur therefore the right of appointing a 
 
176 GENERAL EXCEPTIONS. 
 
 action was trespass by two masters of the Grammar School 
 of Gloucester 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 could 
 not be maintained. ^^ Damnum" said Hankford J., 
 " may be absque iniuria, as, if I have a mill, and- my neigh- 
 bour build another mill, whereby the profit of my mill is 
 diminished, I shall have no action against him, though it is 
 damage to me .... but if a miller disturbs the 
 water from flowing to my mill, or doth any nuisance of the 
 like sort, I shall have such action as the law gives." If 
 the plaintiffs here had shown a franchise in themselves, 
 such as that claimed by the Universities, it might have been 
 otherwise. 
 
 Case of mills. A case very like that of the mills sug- 
 gested by Hankford actually came before the Court of 
 Common Pleas a generation later fw), 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 risht 
 ought to grind at his mill, and grind at the new one, he has 
 not any remedy against the owner of th^new mill. " He 
 who hath a freehold in the vill may build a mill on his own 
 ground, and this is wrong 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 infringed, or if there is a wilful attempt to 
 damage his business by injurious falsehood (" slander of 
 title " ) or acts otherwise unlawful in themselves. Under- 
 selling is not a wrong, though the seller may purposely sell 
 
 BChool-master cannot be tried by a tem- Lantone, near Gloncester (sic; probably 
 
 poral court. The plaintiff tried to set Llanthony is meant), 
 
 np a quasi franchise as holding an an- («) 22 Hen. VI. 14, pi. 23 (A. D. 1443). 
 
 cient office in the gift of the Prior of The school case is cited. 
 
USE OF one's own LAND. 177 
 
 some article at unremunerative prices to attract custom for 
 other articles ; nor is it a wrong even to offer advantages 
 to customers who deal with oneself to the exclusion of a 
 rival (o). 
 
 " To say that a man is to trade freely, but that he is to 
 stop short at any act which is calculated to harm other 
 tradesmen, and which is designed to attract their business 
 to his own shop, would be a strange and impossible counsel 
 of perfection " (p). " To draw a line between fair and 
 unfair competition, between what is reasonable and unrea- 
 sonable, passes the power of the Courts. Competition 
 exists where two or more persons seek to possess or to 
 enjoy the same thing; it follows that the success of one 
 must be the failure of another, and no principle of law 
 enables us to interfere with or to moderate that success or 
 that failure so long as it is due to mere competition " {q)- 
 There is " no restriction imposed by law on competition by 
 one trader with another with the sole object of benefiting 
 himself" (r). (} 
 
 iJigglng wells, &c., in a man's own land. Another 
 group of authorities of the same class is that which estab- 
 lishes " that the disturbance or removal of the soil in a 
 man's own land, though it is the means (by process of 
 natural percolation) of drying up his neighbour's spring 
 or well, does not constitute the invasion of a legal right, 
 and will not sustain an action. And further, that it makes 
 no difference whether the damage arise by the water perco- 
 lating away, so that it ceases to flow along channels 
 through which it previously found its way to the spring or 
 well; or whether, having found its. way to the spring or 
 well, it ceases to be retained there "(s). The leading 
 
 (o) Mogul Steamship Co. v. McGreffor (r) Lord Hannen, S. C. in H. L. '92, 
 
 (1889-91) , 23 Q. B. Dlv. 598, affirmed in H. A. 0., at p. 59. 
 
 L., '92, A. 0. 25. (») Per Cur., Btaiacorkish Mining Co. 
 
 (p) Bowen L. J., 23 Q. B. Dlv. at p. v. Harrison (1873), L. E. 6 P. C. at p. 61, 
 
 615. 43L. J. P. C. 19. 
 
 (?) Fry L. J ., tMd. at pp. 625, 626. 
 
 12 
 
178 GENERAL EXCEPTIONS. 
 
 cases are Acton v. Blundell (t) and Chasemoi-ev. Richards 
 («). In the former it was expressly laid down as the 
 governing principle " that the person who owns the sur- 
 face 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 ofp the 
 water collected from underground springs in his neigh- 
 bour's well, this inconvenience to his neighbour falls with- 
 in the description of damnum absque iniuria which cannot 
 become the ground of an action." In this case the de- 
 fendant had sunk a deep pit on his own land for mining ' 
 purposes, and kept it dry by pumping in the usual way, 
 
 (0 12 M. & W. 324,13 L. J. EX.2S9 (a) 7 H. L. O. 349,29 L.J. Ex. 81 (1859). 
 
 (1843). 
 
 Digging wells, etc. in a, man's own land. The courts of the United 
 States, were in advance of those of England in establishing, as settled 
 law, the rights pertaining to subterranean waters. In both countries it is 
 now a uniform rule, that if, in digging into his own land, a man cuts ofi 
 the source which by percolation supplies his neighbor's well, the latter 
 is without remedy, if the digging is not negligently or maliciously donfe. 
 Ocean Grove Camp Meeting Assoc, v. Asbury Park Comm'rs, 40 N. J. 
 Eq. 447; Southern P. R. Co. v. Dufour, 95 Cal. 615; 30 P. Rep. 783; 
 Elster V. City of Springfield, 49 Ohio St. 82; 30 N. E. Rep. 274; Luther 
 V. Winnislmmet Co., 9 Cush. 171; Greenleaf ». Francis, 18 Pick. 117; 
 Bloodgood V. Ayres, 108 N. Y. 400; 16 N. E. Rep. 433; Goodaleu. Tuttle, 
 29 N. T. 469; Chatfleld ». "Wilson, 27 Vt. 670; 28 Vt. 49; Chase v. Silver-, 
 ton, 62 Me. 176; New Albany etc. R. Co. v. Peterson, 14 Ind. 112; Ellis 
 V. Duncan, 21 Barb. 230; Burroughs v. Saterlee, 67 la. 396; 66 Am. Rep. 
 350; Bliss v. Greeley, 46 N. Y. 671; Haldeman v. Bruckhart, 45 Pa. St. 
 514; Lybe's Appeal, 106 Pa. St. 626; 61 Am. Rep. 542. 
 
 A novel question was that presented in Peoples' Gas Co. v. Tyner (13 
 Ind. 277; 31 N. E. Rep. 59), where it was held, that an owner of a 
 natural gas well may explode nitro-glycerine in it, though the natural 
 effect is to draw gas from another's land. 
 
 But the owner of the land has no right to direct or draw away a nat- 
 ural and well defined underground stream of water to the injury of 
 another. Trustees etc. v. Youmans, 46 N. Y. 362; McClellan o. Hurdle 
 (Col. App.), 33 Pac. Rep. 280; Wheatley v. Baugh, 25 Pa. St, 628; Smith 
 V. Adams, 6 Paige, 436. The special nature of the right precludes its 
 vesting by prescription. See Hanson ». McCne, 42 Cal. 303 ; Greehleaf 
 V. Francis, 18 Pick. 117, SMpra; Eoath v. DriscoU, 20 Conn. 533; Frazier 
 V. Brown, 12 Ohio St. 294. 
 
MALICIOUS EXEKCISK OF EIGHTS? 179 
 
 with the result of drying up a well which belonged to the 
 plaintiff, and was used by him to supply his cotton mill. 
 
 Chasemore v. Richards. Uhasemore v. Richards car- 
 ried the rule a step further in two directions. It is settled 
 that it makes no difference if the, well or watercourse 
 whose supply is cut off or dimininished 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 
 formerly found its way into the river Wandle by under- 
 ground channels, and the supply of water to the plaintiff's 
 ancient mill, situated on that river, was diminished. Here 
 the defendants, though using their land in an ordinary 
 way, were not using it for an ordinary purpose. But the 
 House of Lords refused to make any distinction on that 
 score, and held the doctrine of Acton v. Blundell appli- 
 cable (a;). 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 land-owners. These decisions have been gener- 
 ally followed in the United States (y). 
 
 Other applications of same principle. There are many 
 other ways in which a man may use his own property to 
 the prejudice of his neighbour, and yet no action lies. I 
 
 (a;) Cp., as to the distinction between to the limits of " natural user," Ballard 
 
 the "natural user" of land and the v. romZiMson (1885),29 Ch. Div. 135, 64L. 
 
 maintenance of artificial works, Hurd- J. Ch. 454. 
 Tnan v. N. B. £. Co. (1878), 3 C. P. Div. (t/) Oooloy on Torts, 580. 
 
 at p. 174, 47 L. J. C. P. 368; and farther as 
 
180 GENERAL EXCEPTIONS. 
 
 have no remedy against a neighbour who opens a new win- 
 dow so as to overlook my garden : on the other hand, he 
 has none against me if, at any time before he has gained a 
 prescriptive right to the light, I build a wall or put up a 
 screen so^ as to shut out his view from that window. 
 But the principle in question is not confined to the 
 use of property. 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 custom. His conduct may be unreasonable and ill- 
 conditioned, 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 toler- 
 able that some tradesmen should suffer from the caprice of 
 customers than that the law should dictate to customers 
 what reasons are or are not sufficient for ceasing to deal 
 with a tradesman. 
 
 Kogers v. Bajendro Dntt. But there are cases of this 
 class which are not so obvious. A curious one arose at 
 Calcutta at the time of the Indian Mutiny, and was taken 
 up to the Privy Council. Eajendro Dutt and others, the 
 plaintiffs below, were the owners of the Underwriter, a tug 
 employed in the navigation of the Hoogly. A troopship 
 , with English troops arrived at the time when they were 
 most urgently needed. For towing up this ship the captain 
 of the tug. asked an extraordinary price. Failing to agree 
 with him, and thinking his demand extortionate, Captain 
 Eogers, the Superintendent of Marine (who was defendant 
 in the suit), issued a general order to officers of the Gov- 
 ernment pilot service that the Underwriter was not to be 
 allowed to take in tow any vessel in their charge. Thus 
 
 other applications ot same principle. This principle is applied to 
 light and prospect in several American cases, see post, p. 365. 
 
MALICIOUS EXERCISE OF RIGHTS? 181 
 
 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 Calcutta held that these facts gave a cause of 
 action against Captain Rogers, but the Judicial Committee 
 reversed the decision on appeal (z). The plaintiffs 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 co-operate with in performing 
 the services for the due performance of which they are 
 taken into its service. Supposing it had been believed 
 that the Underwriter was an ill-found vessel, or in any way 
 unfit for the service, might not the pilots have been law- 
 fully forbidden to employ her until these objections were 
 removed? Would it not indeed have been the duty of 
 the Government to do so ? And is it not equally lawful 
 and right when it is honestly believed that her owners will 
 only render their services on exorbitant terms? " (as). 
 
 It must be taken that the Court thought the order com- 
 plained of did not, as a matter of fact, amount to an 
 obstruction of the tug-owners' common right of offering 
 their vessel to the non-official public for employment. 
 Conduct might easily be imagined, on the part of an officer 
 in the defendant's position, which would amount to this. 
 And if it did, it would probably be a cause of action (y). 
 
 («) Sogers v. Bajendro Dutt, 8 Moo. I. (;/) See per Holt C. J. in Keeble v. 
 
 A. 103. Mckertngill, 11 East at pp. 576, B76. 
 
 (x; 8 Moo. I. A. at p. 131. 
 
182 GENEliAL EXCEPTIONS. 
 
 Whether malice material in these cases. In this last 
 case the harm suffered by the plaintiff in the Court below 
 was not only the natural, but apparently the intended 
 consequence of the act complained of. The defendant 
 however acted from no reason of private hostility, but in 
 the interest (real or supposed) of the public service. 
 Whether the averment and proof of toalice, in other words 
 that the act complained of was done with the sole or chief 
 intention of causing harm to the plaintiff as a private 
 enemy (s), would make any difference in cases of this 
 class, does not appear to be decided by any authority in our 
 law. In Rogers v. Rajendro Dutt the Judicial Committee 
 expressly declined to say what the decision would be if this 
 element were present. In Ohasemore v. Richards the 
 statement of facts (by an arbitrator) on which the case 
 proceeded expressly negatived any intention to harm the 
 plaintiff. Lord Wensleydale thought (apparently with 
 reluctance) that the principle of regarding the presence or 
 absence of such an intention had found no place in our 
 law (a) ; and partly for that reason he would have liked to 
 
 (») It Is very difflonlt to say what the conrse of that basiness, does not 
 
 * malice," as a term of art, really means make such acts ■wjrongful : Mogul Stecrni- 
 
 in any one of its generally similar but ship Co. v. McGregor (1889), 23 Q. B. Div. 
 
 not identical naes ; bat I think the gloss 598, H. L., '92, A. C. 25, 61 L. J. Q. B. 295. 
 here given Is sufflciently correct for the (o) 7 H. L. C. at p. 388. But see per 
 
 matter in hand. At all events, the inten- Fry L. J., 23 Q. B. Div. at p. 625, oil the 
 
 tion of causing disadvantage to the hypothetical case of " competition used 
 
 plaintiff as a competitor in basiness by as a mere engine of malice." ^ 
 
 acts in themselves lawfal.and done in 
 
 Whether malice material in these cases. The American authorities 
 upon this subject seem to have gone further than the English. In numer- 
 ous American cases the courts have held that a legal act cannot be 
 made illegal by the motive with vyhich it is done. Occum Co. v. Sprague 
 etc. Co., 34 Conn. 529; Chatfleld v. Wilson, 28 Vt. 49; Auburn etc. Co. 
 V. Douglass, 9 N. Y. f:44; Fahin v. Reichard, 8 Wis. 265; Macey v. Chil- 
 dress, 2 Tenn. Ch. 438; South Eoyalston' Bank v. Saffolk Bank, 27 Vt. 
 105; Eamsey v. Gould, 57 Barb. 398; Hunt v. Somonds, 19 Mo, 583; Orr 
 V. Home Mutual Ins. Co., 12 La. An. 255; Paine v. Chandler, 134 N. Y. 
 385; 32 N. E. Rep. 18; Gallagher v. Dodge, 48 Conn. 387; 40 Am'. Rep. 
 180; Glendon Iron Co. v. Uhler, 75 Pa. St. 467. 
 
MALICIOUS EXERCISE OF RIGHTS? 183 
 
 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 general sense of 
 English lawyers (6). 
 
 Koman doctrine of " animus vlcino nocendi." The 
 Soman lawyers on the other hand allowed that " animus 
 vicino nocendi " did or might make a difference. In a 
 passage cited ancl to some extent relied on (in the scanti- 
 ness, at that time, of native authority) in Acion v. Blundell, 
 we read: " Denique Marcellus scribit, cum eo qui in suo 
 fodiens vicini fontem avertit, nihil posse agi, nee de dolo 
 actionem: et sane non debet habere, si non animo vicino 
 nocendi, sed suum agrum meliorem faciendi id fecit " (c). 
 And this view is followed by recognized authorities in the 
 law of Scotland, who say that an owner using his own laud 
 must act " not in mere spite or malice, in aemulationem 
 vicini^' (d). There seems on principle to be much to 
 reconimend it. Certainly it would be no answer to say, as 
 one is inclined to do at first sight, that the law can regard 
 only intentions and not motives. For in some cases the 
 law does already regard motive as distinct from purpose or 
 intention, as in actions for malicious prosecution, and in 
 the question of privileged 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 sup- 
 posed 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 vicino nocendi would be very difficult of proof, at 
 
 (&) See Sir W. Markby's " Elements W Bell's Principles, 966 (referred to 
 
 of Law," s. 239. by Lord Wensleydale). 
 
 , (0) D. 39, 3. de aqua, 1, § 12 (Ulpian). 
 
184 GENERAL EXCEPTIONS. 
 
 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 certain kind of churlish and unneigh- 
 bourly conduct, and even deliberate mischief, go without 
 redress (there being no reason to suppose the kind a. com- 
 mon 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 appli- 
 cation. I cannot learn that it has much effect in the law 
 of Scotland. It seems proper, however, to point out that 
 there is really no positive English authority on the matter. 
 
 Cases of similar names. Again our law does not in 
 general recognize any exclusive 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 
 
 Oases of similar names. The name of a person or locality cannot 
 become the exclusive trade name of a single person or combination of 
 persons in that place. Pish Bros. Wagon Co. ». La Belle Wagon Co., 
 82 Wis. 546; 52 N. W. Eep. 695; Meneely v. Meneely, 62 N. Y. 427; 20 
 Am. Eep. 489; Rogers v. Taintor, 97 Mass. 291; Candee v. Deere, 54 
 111. 439; 5 Am. Rep. 125; Glendon Iron Co. v. Uhler, 75 Pa. St. 467; 
 15 Am. Rep. 699, supra, p. 182; Del. & H. C. Co. v. Clark, 13 Wall. 
 311. 
 
 But a person living in a different place may appropriate such a trade 
 name. La Republique Francaise o.Schultz, 57 Fed. Rep. 37; Sanders 
 ». Jacob, 20 Ho. App. 96; Newman?;. Alvord, 61 N. Y. 189; 10 Am. Eep. 
 588. 
 
 Persons having the same names and using their names as trade-marks 
 must act in good faith towards each other and not use the trade-marls to 
 deceive the public. Oilman v. Hunnewell, 122 Mass. 139; Holmes v. 
 Holmes, etc. Co., 37 Conii. 278 ; 9 Am. Rep. 324 ; Shaver v. Shaver, 54 
 la. 208 ; Laudreth v. Landreth, 22 Fed. Rep. 41. 
 
 Words purely descriptive, as " Liver Medicine," cannot be appropri ■ 
 ated as a trade -mark. Simmons Medicine Co. v. Mansfield Drug Co. 
 (Tenn.), 23 S. W. Rep. 165. See Amoskeag Mfg. Co. v. Trainer, 101 U. 
 S. 61; Gllman ». Hunnewell, 121 Mass. 139; Royal etc. Co. v. Sherrel, 93 
 N. Y. 331; Lorrillard «). Pride, 28 Fed. Rep. 434; Fleischmann v. Starkey 
 25 Id. 127. 
 
LEAVE AND LICENSE. 185 
 
 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 (e), and allegations of 
 .pecuniary damage will not add any legal effect. "You 
 must have in our law injury as well as damage " (/). 
 
 10. — Leave and Licence: Volenti nonfit iniuria. 
 
 Cohisent or acceptance of risk (leave and licence). 
 
 Harm suffered by consent is, within limits to be mentioned, 
 not a cause of civil action. The same is true where it is 
 met with under conditions manifesting acceptance, on the 
 part of the person suffering it, of the risk of that kind of 
 harm. The maxim by which the 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 universally true. On the other hand, neith6r 
 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 showing that, for 
 one reason or another, he is content to abide the chance of 
 it {g). 
 
 (e) See Burgess v. Burgess (18S3), 3 D. gomery y, Thompson, '91, A. C. 217, 60 L 
 
 M. G. 896, 22 L. J. Ch. 675, a olaasioal J. Oh. 757. 
 
 case; Ihi Boulay v. Du Boulay (1869), L. (f) Jeseel M. E., 10 Ch. Div. 304. 
 
 E. 2P. C. 430, 38 L. J. P. 0. 35; Day 7. (g) Unless we said that leave points 
 
 Brorumrigg (1S78), 10 Ch. DIv.294, 48 L. J. to specific consent to an act, licence to 
 
 Ch. 173 ; Street t. Union Bank, ^c, (1885), general assent to the consequences of 
 
 30 Ch. D. 156, 65 L. J. Ch. 31. Cp. Mont- acts consented to: but such a distinction 
 
 seems too fanciful. 
 
 Consent or acceptance ot risk. Supporting the text vide, State v. 
 Beck, 1 Hill (S. C.) 363; Harrison v. Marshall, 6 Port. 66; Illinois Cent. 
 E. Co. V, Allen, 39 111. 205 ; Walkef v. Fitts, 24 Pick. 191 ; Commonwealth 
 V. Parker, 9 Mete. 263; Stout v. Wren, 1 Hawks, 420; 9 Am. Dec. 653. 
 See post, p. 199. 
 
186 GENERAL EXCEPTIONS. 
 
 Express licence. The case of express consent is com- 
 paratively rare in our books, except in the form of a licence 
 to enter upon land. It is indeed in this last connexion that 
 we most often hear of " leave and licence," and the author- 
 ities mostly turn on questions of the kind and extent of , 
 ■ permission to be inferred from particular language or 
 acts (/i). 
 
 Limits of consent. Force to the person is rendered 
 lawful by consent in such matters as surgical operations. 
 The fact is common enough ; indeed authorities are silent 
 
 (A) See Addison on Torts, p. 38i, 6th ed. ; Cooley on Torts, 303, sgq. 
 
 Limits of consent. One consentiDg to receive lawful force cannot 
 recover damages for an injury resulting therefrom where the force was 
 exercised in a reasonable manner and for a justifiable purpose. In the 
 case of McClallen v. Adams (19 Pick. 333), defendant's wife, being 
 afflicted with a dangerous disease was carried by him to a distance and 
 left under the care of plaintiS as a surgeon, plaintiff performed an opera- 
 tion on her for the cure of tlie disease, soon after which she died. 
 Plaintiff sued defendant to recover compensation for his services. It 
 was held, that the consent of defendant's wife was presumed, that no 
 notice to defendant of the operation was necessary, and that plaintiff 
 could recover. See Caldwell v. Ferrell, 28 111. 438. 
 
 In America, although there are authorities %o the contrary, it may 
 now be announced as established law, that where persons voluntarily 
 engage in a fight, any one of them may recover damages for the injuries 
 he may receive. The fact that the flght was voluntary is admissible in 
 evidence to keep down punitive damages, but not to reduce or defeat 
 actual damages. Dole v. Erskine, 35 N. H. 503; Grotton v. Glidden, 84 
 Me. 689; 24 At. Rep. 1008; Shay v. Thomson, 69 Wis. 640; 18 N. W. Eep. 
 473 ; Adams v. Waggoner, 33 Ind. 631 ; Logan v. Austin, 1 Stew. 476 ; 
 Bell V. Hansley, 3 Jones L. 131 ; Evans v. Waite, 83 Wis. 286 ; 53 N. W. 
 Eep. 445; Jones v. Gale, 22 Mo. App. 637; Smith v. Simon, 69 Mich. 
 481 ; 37 N. E. Eep. S48. 
 
 One is liable for an injury to another caused by intentional excess in 
 mutual sport. Peterson v. Haffner, 59 Ind. 130. 
 
 But " The common law recognizes as not necessarily unlawful certain 
 manly sports calculated to give bodily strength, skill and activity and 
 to fit people for defence, public as well as personal, in time of need. 
 Playing at cudgels or foils, or wrestling by consent, there being no 
 motive to do bodily harm on either side, are said to be exercises of this 
 description. * * * But prize-fighting, boxing matches and encoun- 
 
LIMITS OF LAWFUL CONSENT. 187 
 
 or nearly so, because it is common and obvious. Taking 
 out a man's tooth without his consent would be an aggra- 
 vated assault 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 guard- 
 ian is generally necessary and sufficient (i). 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. consent or assent if it has no reason- 
 able objects Thus if a man licenses another to beat him, 
 not only does this not prevent thie assault from being a 
 punishable offense, but the better opinion is that it does not 
 deprive the party beaten of his right of action. On this 
 principle prize-fights and the like " are unlawful even when 
 entered into by agreement and without anger or mutual 
 ill-will" (k). "Whenever two persons go out to strike 
 each other, and do so, each is guilty of an assault" {I). 
 The reason is said to be that such 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, 
 was in the language of pleading vi et armis and contra 
 pacem, something more than usual must be meant by this 
 expression. The distinction seems to be that agreement 
 will not justify the wilful causing or endeavouring to cause 
 appreciable bodily harm for the mere pleasure of the parties 
 
 (») Cp. Stephen, Digest of the Crim- (I) Coleridge J. In Beg. v. Lewis (1844), 
 
 Inal Law, art. 204. 1 C. & K. at p. 421, cp. BuUer N. P. 16. 
 
 (k) ComTiumwealth v. CoUberg (1876), The passage there and elsewhere cited 
 
 119 Mass. 350, and 20 Am. Eep. 328, where from Comberbach, a part from the slen- 
 
 aathoritiCB are collected. See also Reg. der anthority of that reporter. Is only a 
 
 V. Coney (18S2), 8 Q. B. D. 534,538, 546, dlctnm. BuUer's own authority is really 
 
 649, 667, and infra, better. , 
 
 ters of that kind, serve no useful purpose, tend to breaches of the peace, 
 and are unlawful even when entered into by agreement and without 
 anger or mutual ill will. If one party licenses another to beat him, such 
 license is void, because it is against the law." Commonwealth v, 
 Collberg, 119 Mass. 353; 20 Am. Rep. 328. 
 
188 GENERAL EXCEPTIONS. 
 
 or others. Boxing with properly padded gloves is lawful, 
 because in the usual course of things harmless. Fighting 
 with the bare fist is not. Football is a lawful pastime, 
 though many kicks are given and taken in it ; a kicking 
 match is not. "As to playing at foils, I cannot say, nor 
 was it ever said that I know of, that it is not lawful for a 
 gentleman to learn the use of the small sword; and yet 
 that cannot be learned without practising with foils " (m). 
 Fencing, 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 manner of German stu- 
 dents 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. Here it cannot be said that 
 " bodily harm was not the motive on either side " (w). It 
 seems to be what is called a question of mixed law -and 
 fact whether a particular action or contest involves such 
 intention to do real hurt that consent or assent will not 
 justify it (o). Neglect of usual precautions in any pastime 
 known to involve danger would be evidence of wrongful 
 intention, but not conclusive evidence. 
 
 Keg. V. Coney. This question was incidentally consid- 
 ered by several of the judges in the recent case of Beff. v. 
 Coney (p), where the majority of the Court held that mere 
 voluntary presence at an unlawful fight is not necessarily 
 punishable as taking part in an assault, but there was no 
 
 (m) Foster's Crown Law, 260. cnmstances. Quaere, also, whether one 
 (n) Foster, I. e. "Motive" is hardly monk might have lawfully licensed an- 
 the correct word, but the meaning is other to beat him by way of spiritual 
 plain enough. discipline. But anyhow he could not 
 (0) Op. Pnlton, De Pace Eegls, 17 b. have sued, being civilly dead by his en- 
 It might be a nice point whether the tering into religion, 
 old English backswordlng (see " Tom (p) 8 Q. B. D. 534, 61 L. J. M. 0. 66 
 Brown ") was lawful ornot. And quaere (1882). For fuller collection and oonsld- 
 of the old mlesot Rugby football, which oration of authorities, cp. Mr. Edward 
 allowed deliberate kicking in some cir- Manson's note in L. Q. B. vi. 110. 
 
LIMITS OF LAWFUL CONSENT. 189 
 
 difference of opinion as to a prize-fight being unlawful, 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 no't an assault, and that, an assault being 
 a breach of the peace and unlawful, the consent of the 
 person struck is immaterial. If this view is correct a blow 
 struck in a prize-fight is clearly an assault ; but playing 
 with singlesticks or wrestling do not involve an assault, 
 nor does boxing with gloves in the ordinary way" (^q). 
 Stephen J. said: " When one person is indicted for 
 inflicting 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 circumstances, that its infliction is 
 injurious to the public as well as to the person injured. 
 . . . . In cases where life and limb are exposed to no 
 serious danger in the common course of things, I think 
 that consent is a defence to a charge of assault, even when 
 considerable force is used, as for instance in cases of 
 wrestling, 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 
 circumstances" (r). These opinions seem equally appli- 
 cable to the rule of civil responsibility (s). 
 
 (g) 8 Q. B. D. at p. 539. As to the art. 208 follows the authorities, but I am 
 
 limits of lawful boxing, see Beg. v. Orton not sare that It exactly hits the dlstlnc- 
 
 (1878), 39 L. T. 293. tion. 
 
 (r) SQ. B. D. atp.M9. Compare arts. (?) Notwithstanding the doubt ex- 
 
 206, 208 of the learned judge's " Digest pressed by Hawkins, J., 8 Q. B. D. at pp. 
 
 of the Criminal Law." The language of 553, 554. 
 
190 GENEKAIi EXCEPTIONS. 
 
 lilcence gotten by fraud. A licence obtained by fraud 
 is of no effect. This is too obvious on the general principles 
 of the law to need dwelling upon («). 
 
 Extended me3.uing of Tolenti non fit iniuria. Trials 
 of strength and skill in such pastimes as those above men- 
 tioned afford, when carried on within lawful bounds, the 
 best illustration of the principle by which the maximvolenii 
 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 be assigned by most lawyers as the governing 
 rule, yet the words must be forced. It is not the will of 
 one player that the other should hit him ; his object is to 
 be hit as seldom as possible. But he is content 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 acoident, 
 not a necessary incident, of what is being done ; as where 
 in the course of a cricket match a player or speculator 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 & 
 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 put in the 
 
 (<) A rather curious illustration may seems to have amounted to a common 
 
 be found in Davies t. MarthaU (1861), 10 law plea of leave and licence and joinder 
 
 C. B.N. S. 697, 31 L. J. O. P. 61, where the of issue, or perhaps new assignment, 
 
 so-called equitable plea and replication thereon. 
 
 Extending the meaning of volenti non fit iniuria. Where one is 
 injured in a mutual play, the maxim applies, unless there was an intention 
 to injure. Fitzgerald ». Gavin, 110 Mass. 153. 
 
TAKING RISK. 191 
 
 Indian Penal Code (u) of a man who stands near another 
 cutting wood with a hatchet, and is struck by the head 
 flying off. It may be said that these examples are trivial. 
 They are so, and for that reason appropriate. They show 
 that the principle is constantly at work, and that we find 
 little about it in our books just because it is unquestioned 
 in common sense as well as in law. 
 
 Kelatlon of these cases to inevitable accident. Many 
 cases of this kind seem to fall as naturally under the 
 exception of inevitable accident. But 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 woodman might have avoided it. A man 
 dealing with explosives is bound, as regards his neighbour's 
 property, to diligence and more than diligence. But if I 
 go and watch a firework-maker for my own amusement, 
 and the shop is blown up, it seems I shall have no cause of 
 action, even if he was handling his materials unskillfully. 
 This, or even more, is implied in the decision in Ihtt v. 
 Wilkes (x), where it was held that one who trespassed in a 
 wood, having notice that spring-guns were set there, and 
 was shot by a spring-gun, could not recover. The maxim 
 "volenti non fit iniuria" was expressly held applicable : 
 *' he voluntarily exposes himself to the mischief which has 
 
 (u) lUnst. to s. 80. On the point of shootingatiespasseiwithhisownhand, 
 
 actual consent, cf. ss. 87 and 88. even after warning, he could not justify 
 
 (x) 3 B. & Aid. 301 (1820); cp. and shooting him with a spring-gun, is 
 
 dist. the later case of Bird v. Solbrook, weighed and found wanting, though 
 
 4 Bing. 628. The argument that since perhaps it ought to baye prevailed, 
 the defendant could not have justified 
 
 Belation ol these cases to inevitable accident. With reference to 
 spring-guns it should be rioted that where the trespasser is witJiout notice 
 the rule above stated is reserved. See post, p. 162. 
 
192 GENERAL EXCEPTIONS. 
 
 happened" (y). The case gave rise to much public excite- 
 ment, 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 expressly 
 raised by the pleadings, the decision is an authority that if 
 a man goes out of his way to a dangerous action or state 
 of things, he must take the risk as he finds it. And this 
 appears to be material with regard to the attempt made by 
 respectable authorities, and noticed above, to bring under 
 this principle the head of excuse by reason of inevitable 
 accident (a). 
 
 Knowledge of risk opposed to duty of warning. It 
 
 was held by a majority of the Court of Appeal that if a 
 man undertakes to work in a railway tunnel where he 
 
 (.y) Per Bayley J. 3 B. & Aid. at p. 3U, 7 & 8 Geo. IV. o. 18, now repealed and 
 
 and Holroyd J. at p. 311. substantially re-enacted (21 & 25 Vict. 
 
 (s) Ediu. Rev. xxxv. 123, 410 (re- c. 95, s. 1, and c. 100, s. 81). 
 printed in Sydney Smith's worts). (o) Molmes y. Mather (1875), L. E. 10 
 
 Setting spring-guns, except by night in Ex. at p. 267; St/lands v. Fletcher (1866), 
 
 a dwelling-house for the protection L. B, 1 Ex. at p. 287. 
 thereof, was made a criminal offense by 
 
 Knowledge ol risk opposed to duty ol warning : employers and em- 
 ployes. An employ^ who knows or has been fully cautioned as to the 
 risks of his situation, however dangerous they may be, and accepts them, 
 cannot recover for any injuries received in the course of his employment. 
 Hoosier Stone Co. v. McCain, 133 Ind. 231; 31 N. E. Eep. 956; Prentice 
 V. Village of WellsvIUe, 66 Hun, 634; 21 N. Y. S. Eep. 820; Palandti. 
 Chicago etc. B. Co., 44 La. An. 1003 ; Swanson v. City of La Fayette (Ind.), 
 33 N. E. Eep. 1033; Knight v. Cooper, 36 W. Va. 232; 14 S, E. Eep. 999; 
 Foley V. Jersey City etc. Co. (N. J.), 24 At. Eep. 487; Cook v. St. Paul, 
 etc. E. Co., 34 Minn. 45; Bengston v. Chicago, etc. Ey. Co., 47 Minn. 
 486; 50 N. W. Eep. 531; Titus v. Bradford, etc. R. Co., 136 Pa. St. 618; 
 20 At. Eep. 517; 26 W. N. C. 472; Little Rock, etc. E. Co. ■». Duffy, 85 
 Ark. 602; 4 Am. & Eng, E. Cas. 638 ; Little Eock, etc. E. Co. v. Townsend, 
 41 Ark. 382; 21 Am. & Eng. E. Cas. 619; McGlynn v. Brodie, 31 Cal. 377; 
 Baxter v., Roberts, 44 Cal. 187 ; Malone v. Hawley, 46 Cal. 409 ; Palmer v. 
 Denver, etc. E. Co. (Colo.), 12 Fed. Rep. 392; Indianapolis etc. E. Co. v. 
 Flanagan, 77 111. 365; Pennsylvania Co. v. Lynch, 90 111. 334; Missouri 
 Furnace Co. v. Abend, 107 111. 44; Abend v. T. H. & G. E. Co., Ill 111, 
 
TAKING RISK. 193 
 
 knows that trains are constantly passing, he cannot com- 
 plain of the railway company for not taking measures to 
 warn the workmen of the approach of trains, and this 
 though he is the servant not of the company but of the 
 
 202; Houser v. Chicago, etc. E. Co., 60 la. 230; 8 Am. & Eng. R. Cas. 
 500; Money v. Lower Vein Coal Co., 55, la. 671; Kelly v. Silver Spring 
 Bleaching Co., 12 E. I. 112; Nashville, etc. E. Co. v. Elliott, 1 Coldw. 
 612; Houston, etc. E. Co. v. Fowler, 66 Tex. 452; 8 Am. & Eng. E. Cas. 
 504; Baltimore, etc. E. Co. v. McKenzie, 81 Va, 71; 24 Am. & Eng. R. 
 Cas. 395; Smiths. SellA'S, 40 La. An. 627; Chicago, etc. R Co.?). Mahoney, 
 4 111. App. 262; Camp Point Mfg. Co. v. Ballon, 71 111. 417; Leary v. 
 Boston, etc. E. Co., 139 Mass. 580; Eussell v. Tillotson, 140 Mass. 201; 
 Woods V. St. Paul, etc. E. Co., 39 Minn. 435; Porter v. Hannibal E. Co., 
 71 Mo. 66; 2 Am. & Eng. E. Cas. 44; St. Louis, etc. Ey. Co. v. Kelton, 65 
 Ark. 483; 18 S. W. Eep. 933. 
 
 So, where the employ^ discovers risks after entering the employment 
 but continues his service without complaint. He must quit work or it 
 will be presumed that he assumes the risks. Davis v. Detroit, etc. K. 
 Co., 20 Mich. 105; Eains v. St. L. etc. E. Co., 71 Mo. 164; 5 Am. & Eng. 
 E. Cas. 610; Sweeney v. Central Pac. E. Co., 57 Cal. 15; 8 Am. & Eng. R. 
 Cas. 151; Umback v. Lake Shore, etc. E. Co., 83 lad. 191; 8 Am. & Eng. 
 E. Cas. 98; Louisville, etc R. Co. v. Orr, 84 Ind. 50; 8 Am. & Eng. R. 
 Cas. 94; Houston, etc. B. Co. v. Meyers, 55 Tex. 110; 8 Am. & Eng. E. 
 Cas. 114; Covey v. Hannibal, etc. E. Co., 86 Mo. 635; 28 Am. & Eng. E. 
 Cas. 382; Norfolk & W. R. Co. v. Jackson, 85 "Va. 489; 8 S. E. Rep. 370; 
 New York, etc., R. Co. v. Lyons, 119 Pa. St. 824; Sowden v. Idaho 
 Quartz Mining Co., 55 Cal. 443; WeigrefEe v. Daw, 40 111. App. 53; Ryan 
 V. Porter MIg. Co., 67 Hun, 253; 589; 10 N. Y. S. Rep. 774; Missouri P. 
 R. Co. V. Somers, 78 Tex. 439; 14 S. "W. Eep. 779; Davidson u. Southern 
 P. Co., 44 Fed. Eep. 474. But see Mahoney v. Dore, 155 Mass. 513; 30 N. 
 E. Rep. 366. 
 
 Bat the employ^ does not assume unexplained risks, which are not 
 known to him nor apparent to a reasonably prudent man ; or the risk of 
 latent defects which are known or should be known to his employer. 
 Conlon V. Oregon, etc. R. Co., 21 Oreg, 462; 32 Pac. Rep. 397; Ballou v. 
 Chicago, etc. R. Co., 54 Wis. 257; 5 Am, & Eng. R. Cas. 480; Warner v. 
 Erie, etc. E. Co., 39 N. Y. 468; DeGrafE v. New York, etc. R. Co., 76 N. 
 Y. 125; East St. L. Packing Co. v. Hightower, 92 111. 139; Indianapolis, 
 etc. R. Co. ». Toy, 91 111. 474; Steffen v. Chicago, etc. R. Co., 46 Wis. 
 266; Morrison v. Phillips etc. Cons. Co., 42 Wis. 405; Wedgwood ». 
 Chicago, etc. E. Co., 41 Wis. 478; McCampbell ». Cunard S. S. Co., 69 
 Hun, 131 ; 23 N. Y. S. Rep. 477 ; Evansville & R. R. Co. v. Maddux (Ind.), 
 33 N. B. Rep. 345; Taylor etc. R. Co. v. Taylor, 79 Tex. 104; 14 S. W. 
 Rep. 918 ; Lofrano v. New York, etc. Co., 55 Hun, 452 ; 8 N. Y. S. Rep. 717. 
 
 13 
 
194 GENERAL EXCEPTIONS. 
 
 contractor (6). The minority held that the railway com- 
 pany, as carrying on a dangerous business, were bound not 
 to expose persons coming by invitation upon their property 
 to any undue risk, and at all events the burden of proof 
 was on them to show that the risk was in fact understood 
 
 1 and accepted by the plaintiff (c). " If I invite a man who 
 has no knowledge of the locality to walk along a dangerous 
 cliff which is my property, I owe him a duty different to 
 that which I owe to a man who has all his life birdnested 
 on my rocks " (d). 
 
 But where a man goes on doing work under a risk which 
 
 (6) Woodley y. Melr. Disl. B. Co. y. G. W. B. Co. (1889), li App. Ca. 179, 
 
 (1877), 2 Ex. Dlv. 384, d6 L. J. Ex. 521; 190. 
 Mellish and Baggallay L. JJ. diss. (d) Fry L. J. 18 Q. B. Dlv. at p. 701. 
 
 (c) Cp. Thomasv. Qiwrtermaine (1887), And see Yarmouth v. Frimce (1887), 19 Q. 
 
 18 Q. B. Div. 085, 56 L. J. Q. B. 340, and B. D. 647, 57 L. J. Q. B. 7. 
 Lord Hersckeirs judgment In Menibery 
 
 Nor does the employ^ lose his right of action for injuries if the risk 
 assumed is such that a prudent man would not refuse it and discontinue 
 work, as where the employer promises to repair defective appliances 
 used by the employe. 
 
 Dwyer v. St. Xiouis, etc. K. Co., 52 Fed. Rep. 82; Thorpe v. Missouri 
 P. E. Co., 89 Mo. 650; Southern P. R. Co. v. Lasch (Ter.), 21 N. W. Rep. 
 563; Chicago & G. W. R. Co. v. Travis, 44 HI. App. 466; Stephenson v. 
 Duncan, 73 Wis. 404; Conroy t>. Vulcan Iron Works, 62 Mo. 35; Patterson 
 V. Pittsburgh, etc. R." Co., 76 Pa. St. 389; Le Clair v. First Div. St. P. & 
 P. R. Co., 20 Minn. 9; Brabbits v. Chicago, etc. R. Co., 38 Wis. 289; 
 Little Rock, etc. R. Co. v. Duffey, 35 Ark. 602 ; 4 Am. & Eng. R. Cas. 637; 
 Greenleaf v. Illinois etc. R. Co., 29 la. 14; Kroy v. Chicago, etc. R. Co., 
 32 la. 357; Greenleaf v. Dubuque R. Co., 33 la. 62; Way©. Illinois, etc. 
 E. Co., 40 la. 341; Lumley v. Caswell, 47 la. 159; Atchison etc. R. Co. v. 
 McKee, 37 Kan. 592; St. Clair Nail Co. v. Smith, 43 111. App. 105; Breck- 
 enridge Co. v. Hicks (Ky.), 22 S. W. Rep. 554;' Harrison v. Denver etc. 
 Ey. Co., 7 Utah, 623; 27 Pac. Rep. 728; Colorado M. Ry. Co. v. O'Brien, 
 16 Colo. 219; 27 Pac. Rep. 701; Hough v. Texas etc., R. Co., 100 U. S. 
 102; Jones v. Lake Shore, etc., R. Co., 49 Mich. 573. 
 
 But it such repair is not made within a reasonable time the employ^ 
 must quit the service or assume the consequent risk. Davis v. Graham, 
 
 2 Colo. App. 210; 29 Pac. Rep. 1007; Weber Wagon Co. v. Kehl, 139 111. 
 644; 29 N. E. Rep. 714; Lyttle o. Chicago & W. M. Ry. Co., 84 Mich. 289, 
 47 N. W. Rep. 571. Contra, see New Jersey etc. R. Co. ». Young, 49 Fed. 
 Rep. 723; 1 U. S. App. 96; 1 C. C. A. 428. 
 
TAKING RISK. 195 
 
 is known to him, and which does not depend on any one 
 else's acts, or on the condition of the place where the work 
 is done, but is incident to the work itself, he cannot be 
 heard to say that his exposure of himself to such risk was 
 not voluntary (e).' 
 
 Cases between employers and their workmen : Smith v. 
 Baker. The principle expressed by volenti nonfit iniuria 
 is different from that of contributory negligence (/), as it 
 is in itself independent of the contract of service or any 
 other contract (g). It does not follow that a man is negli- 
 gent or imprudent because he chooses to encounter a risk 
 which he knows and appreciates ; but if he' does volun- 
 tarily run the risk, he cannot complain afterwards (h). 
 At the same time knowledge is not of itself conclusive. 
 The maxim is volenti — not scienti — non -fit iniuria; " the 
 question whether in any particular case a plaintiff was 
 volens or nolens is a question of fact and not of law " (i). 
 A workman is not bound, for example, to throw up his 
 employment rather than go on working with appliances 
 which he knows or suspects to be dangerous; and con- 
 tinuing to use such appliances if the employer cannot or 
 will not give him better is not conclusive to show that he 
 voluntarily takes the attendant risk (A;). As between an 
 employer and his own workmen, it is hardly possible to 
 separate the question of knowledge and acceptance of a 
 particular risk from the question whether it was a term in 
 the contract of service (though it is seldom, if ever, an 
 
 (e) Meniberyir. G. W. R. Co. note (c), (ft) Bowen L. J. 18 Q. B. Dlv. at p. 695. 
 
 last page. Lord Bramwell's extra-ju- (i) Ibid, at p. 696; Llndley L. J. in 
 
 dicial remarks cannot be supported : see Yarmouth v. France (1887) ,19 Q. B. D. 
 
 per Xord Herschell, U App. Ca. M PP- BiT, 659, before judges of the 0. A. sitting 
 
 192, 193; and Smith y. Baker, note (i), as a divisional Court, 
 
 p. 156. (i) Tarmouth v. France, last note; 
 
 (/) Bowen L. J. in Thomas v. Quar- Thrussellv. Sandyside (1888), 20 Q. B. D. 
 
 termaine (1887), 18 Q. B. Dlv. 686, 694, 697, 359, 57 L. J. Q. B. 347; Smith v. Baker, 
 
 56 L. J. Q. B. 340. '91, A. C. 325, 60 L. J. Q . B. 683. 
 
 (jr) 18 Q. B. Div. at p. 698. 
 
196 GENERAL EXCEPTIONS. 
 
 express term) that the workman should accept that risk. 
 Since the Employers' Liability Act has deprived the mas- 
 ter, as we have already seen, of defense of " common 
 employment" in a considerable number of cases, the 
 defence of volenti non fit iniuria has several times been 
 resorted to, with the eflfect of raising complicated discus- 
 sion on tolerably simple facts. By treating the maxim as 
 if it were of literal authority (which no maxim is), and 
 then construing it largely, something very like the old 
 doctrine of " common employment " might have been 
 indirectly restored. For some time there was appreciable 
 danger of this result. But the tendency has been effec- 
 tually checked by the decision of the House of Lords in 
 Smith V. Baker (e). Except where there is an obvious and 
 necessary danger in the work itself, it must be a question 
 of fact in every case whether there was an agreement or 
 at any rate consent to take the risk. *' Where a person 
 undertakes to do work which is intrinsically dangerous, 
 notwithstanding that reasonable care has been taken to 
 render it as little dangerous as possible, he no doubt 
 voluntarily subjects himself to the risks inevitably accom- 
 panying it, and cannot, if he suffers, be permitted to com- 
 plain that a wrong has been done him, even though the 
 cause from which he suffers might give to others a right 
 of action " : as in the case of works unavoidably produc- 
 ing noxious fumes. But where " a risk to the employed, 
 which may or may not result in injury, has been created 
 or enhanced by the negligence of the employer," there 
 " the mere continuance in service, with knowledge of the 
 risk," does not " preclude the employed, if he suffer 
 from such negligence, from recovering in respect of his 
 employer's breach of duty" (/). And it seems that 
 (apart from contracts to take a class of risks) there must 
 be consent to the particular act or operation which is 
 
 (e) '91, A. C. 325. (/) Lord Herschell, '91, A. O. at pp. 
 
 360. 362. 
 
TAKING UISK. 197 
 
 hazardous, not a mere general assent inferred from knowl- 
 edge that risk of a certain kind is possible (g). 
 
 Distinction where no negligence at all. Cases of 
 volenti non fit iniuria are of course to be distinguished 
 from cases of pure unexpected accident where there is no 
 proof of any negligence at all on the defendant's part (A). 
 It seems that Thomas v. Quartermaine, though not so 
 dealt with, was really a case of this latter kind {«). 
 
 In the construction of a policy of insurance against 
 death or injury by accident, an exception of harm " hap- 
 pening by exposure of the insured to obvious risk of 
 injury " includes accidents due to a risk which would 
 have been obvious to a person using common care and 
 attention (A;). 
 
 Distinction from cases where negligence is ground of 
 action. We now see that the whole law of negligence 
 assumes the principle of volenti non fit iniuria not to be 
 
 (g) Lord Halsbniy, '91, A. 0. at pp. Oonnty Court, this point, not having 
 
 336-338. been raised at the trial below, was not 
 
 (ft) Walsh V. WhiteUy (1888), 21 Q. B. open on the appeal. It was neverthe- 
 
 Div. 371, S7 L. J. Q. B. 586. less extra- judicially discussed with con- 
 
 (e) See Lord Morris's remarks in siderable variety of opinion. 
 
 Smith V. Baker, '91, A. C. at p. 369. In (i) Cornish v. Accident Insurance Co. 
 
 Smith V. Baker itself, an appeal from a (ISSO), 23 Q. B. Div. 453. 
 
 Distinction from cases -where negligence is ground of action. Illus- 
 trating this distinction reference is made to the case of Pittsburg, etc. 
 R. Co. V. Noel (77 Ind. HO), in which it was held, that the piling of 
 wood by the plaintiff, with the consent of the defendant, along the line 
 of defendant's railroad, where it was liable to and did take flre, did not 
 constitute contributory negligence on the part of the plaintiff j 
 
 Again, it has been held in another case, that persons who have author- 
 ized the use of a locomotive on their premises have no right of action 
 for damage done to their property by flre set by sparks from such loco- 
 motive. Spear v. Mjarquette, etc. R. Co., 49 Wis. 246. 
 
 Upon the distinction between lawful risk and negligence, by footmen 
 In crossing streets the Supreme Court of Indiana says: "We agree 
 that it is the duty of a person crossing, or about to cross, a public street 
 on foot, to look and take precautions according to the character of the 
 
198 ' GENERAL EXCEPTIONS. 
 
 applicable. It was suggested in Holmes v. Mather (I) that 
 when a competent driver is run away with by his horses, 
 and in|f spite pffikll he can do they run over a foot-passen- 
 ger, the foot-p^enger is disabled from suing, not simply 
 because the driver has done no wrong, but because people 
 who walk along a road must take the ordinary risks of 
 traffic. But if this were so, why stop at misadventure 
 without negligence? It is common knowledge that ijot all 
 drivers are careful. It is known, or capable of being 
 known, that a certain percentage are not careful. " No 
 one (at all events some years ago, before the admirable 
 police regulations of later years) could have crossed Lon- 
 don streets without knowing that there was a risk of being 
 run over " (>w). 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 
 himself 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 reason- 
 
 CO L. E. 10 Ex. at p. 267. (m) Lord Halsbary, '91, A. O. at p. 337. 
 
 thoroughfare, so as to avoid collision with approaching horsemen or 
 vehicles ; but it is obviously not necessary that the same high degree of 
 vigilance should be demanded of a footman abont to cross a public 
 street, In order to avoid contact with a horseman who is likewise under 
 a duty to be on the lookout, and to have his horse under careful control, 
 as is required at railroad crossings over which engines and trains of 
 cars are necessarily run at a rate of speed not readily governable." 
 Stringer v. Frost, -116 Ind. 480; 19 N. E. Rep. 332, citing Wendell v. Rail- 
 way Co., 91 N. Y. 420; Baker v. Savage, 45 N. Y. 191 ; Williams v. Grealy, 
 112 Mass. 79; Simmons v. Gaynor, 89 Ind. 165; Danils v. Clegg, 28 Mich. 
 32 ; Shapleigh v. Wyman, 134 Mass. 118 ; Coombs v. Purrington, 42 Me. 
 332. Seeposi, p. 423. 
 
WORKS OF NECESSITY. 199 
 
 able 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 betw^n parties on an 
 equal footing of right, of whom one dy|6 not go out of 
 his way more than the other. A man isnot bound at his 
 peril to fly from a risk from which it is another's duty to 
 protect him, merely because the risli is known (n). Much 
 he same principle has in late years been applied, and its 
 limits discussed, in the special branch of the law which 
 deals with coutriButory negligence. This we shall have to 
 consider in its place (o)v 
 
 11. — Works of necessity. 
 
 "Works of necessity. A class of exceptions as to which 
 there is not much 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. Pull- 
 
 (n) Smith v. Baker, '91, A. C. 32S, 60 L. R. 10 Q. B. at p. 274, 44 L. J. Q. B. 112; 
 
 L. J. Q. B. 683; ThrussM V. Handyside and per Bram well L.J. (not referring to 
 
 (1888), 20 Q. B. p. 339, 57 L. J. Q. B. 347. these authorities, and taklnff a some- 
 Co) See Gee y. Metropolitan Ji. Co. \7hat diSerent view). Lax Y. Corporation 
 
 (1873), Ex. Ch. L. E. 8 Q. fi. 161, 42 L. J. of Barlington (1879), 5 Ex. D. at p. 35, 49 
 
 Q. B. 105; Bobson v. N. E. B. Co. (1875), L. J. Ex. 103. 
 
 ■Works of necessity. Agreeing with the text, vide Beach v. Trudgain, 
 2 Gratt. 219; Sorracco v. Geary, 3 Cal. 69; Americaa Print. Works v. 
 Lawrence, 23 N. J. L. J.; Hale v. Lawrence, Id. 590; Miller v. Craig, 11 
 N. J. Eq. 175; Taylor v. Plymouth, 8 Mete. 462; Fisher v. McGirr, 1 
 Gray, 11; McDonald v. Redburg, 13 Mass. 48; Penrice v. Wallace, 17 
 Mass. 172 ; Russell v. Major, 2 Denio, 561 ; Rentz v. Etna Ins. Co., 3 Edw. 
 Ch. 341; Coe«. Schultz, 4T Barb. 64; Republican v. Sparhawk, 1 Dall. 
 357; Parkham v. Decatur, 9 6a. 341; Proctor v. Adams, 113 Mass. 376; 
 Burton v. McClellan, 3 111. 434; Bowditch v. Boston, 101 U. S. 16. 
 
 But "public interest" does not justify the commission of a wrong. 
 Henderson ©.Railroad Co., 17 Tex. 650; Boyle ». Case, 18 Fed. Rep. 880. 
 See Harrison «. Wisdom, 7 Heisk, 99; Glenn v. Kays, 11 111. App. 479; 
 Vossen v. Dantel (Mo.), 22 S. W. Rep. 734. 
 
 Self-defence may be termed a work of necessity, and as such is justifi- 
 able; see post, p. 201. 
 
200 GENERAL EXCEPTIONS. 
 
 ing down houses to stop a fire (p), and casting goods over- 
 board, 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 foun- 
 dation, that the destruction of property under such condi- 
 tions of danger is justifiable (q). 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 kingdom." 
 In these cases the apparent wrong '* sounds for the public 
 good " (»•). 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 authority over him, cannot be 
 obtained in time. Here it is evidently justifiable to do, in 
 a proper and reasonable manner, what needs to be done. 
 It has never been supposed to be even technically a trespass " 
 if I throw water on my neighbour's goods to save them from 
 fire, or seeing his house on fire, enter on his land to help in 
 putting it out (s). Nor is it an assault for the first passer- 
 by to pick up a man rendered insensible by an accident, or 
 for a competent surgeon, if he perceives that an operation^ 
 ought forthwith to be performed 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 neces- 
 sity 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 (t). 
 
 ip) Dyer, 36 b. Eede C. J. 21 Hen. VII. 28, pi. B; but If 
 
 (g) Mouse's case, 12 Co. Eep. 63, Is only this be law, it mnst be limited to reme- 
 
 JuBt wortli citing as an illustration that dies against a trespasser, for It cannot 
 
 no action lies. be a trespass or a lawful act to save a 
 
 (r) Kingsmlll J. 21 Hen. Yll. 27, pi. 5; man's goods according as they are or 
 
 cp. Dyer, a6i sttpro. In 8 Ed. IV. 23, pi. are not insured. .Cp. Y. B. 12 Hen. VIII. 
 
 41, it is thought doubtful whether the 2, where there is some curious discus- 
 
 Justifleatlon should be by common law sion on the theory of trespass generally, 
 or by special custom. («) Of. the Indian Fenal Code, si. 92, 
 
 («) Good will without real necessity and the powers given to the London Fire 
 
 would not do ; there mnst be danger of Brigade by 28 & 29 Vict. c. 90, s. 12, which 
 
 total loss, and, it is said, without remedy seem rather to assume a pre-existing 
 
 for the owner against any person, per right at common law. 
 
PRIVATE DEFENCE. 201 
 
 12. — Private defence. 
 
 Self-defence. Self-defence (or rather private de- 
 fence (m), for defence 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 creat- 
 ure that has means of defence. And when the original 
 force is unlawful, this natural right or power of man is 
 allowed, nay approved, by the law. Sudden and strong 
 resistance to unrigfiteous attack is not merely a thing to be 
 tolerated; in many cases it is a moral duty. Therefore it 
 would be a grave mistake to regard self-defence as a neces- 
 sary evil suffered by the law because of the hardness of 
 men's hearts. The right is a just and perfect one. It 
 extends not only to the defence of a man's own person, but 
 to the defence of his property or possession. And what 
 may be lawfully done for oneself in this regard may like- 
 wise be done for a wife or husband, a parent or child, a 
 master or servant (as). At the same time no right is to be 
 
 («) This is a term adopted in the In- his servant. But the practice and the 
 
 dlan Penal Code. better opinion have always been other- 
 
 (x) Blackstone Ul. 3; and see the wise. Before the Conquest it was 
 
 opinion of all the Justices of E. B., 21 understood that a lord might flght in 
 
 Hen. vn. 39, pi. 50. There has been defence of his men as well as they in 
 
 some doubt whether a master could his. LI. Alt. c. 42, § 5. 
 justify on the ground of the defence of 
 
 Self-defence. Agreeing with the text, vide Murray v. Boyne, 42 Mo. 
 472; Commonwealth v. EUeger, 1 Brews. 352; Morris v. Piatt, 32 Conn. 
 75; 47 Am. Dec. 265; Scribner ». Beach, 4 Denlo, 448; Elliott v. Brown, 
 2 Wend. 497; 20 Am. Dec. 644; Dole v. Erskine, 33 N. H. 503; Philbrick 
 V. Foster, 4 Ind. 442; Hazel v. Clark, 8 Harr. (Del.) 22; Fortune v. 
 Jones, 128 lU. 518; 21 N. E. Eep. 523; Eussell v. Barrow, 7 Port. 106; 
 Stoneman v. Commonwealth, 86 Va. 523; Barnards «. State, 88 Tenn. 
 183; Howland v. Day, 56 Vt. 318; Close o. Cooper, 34 Ohio St. 98; Gyre 
 V. Culver, 4 Barb. 593; Davis v. Whitridge, 2 Strobh. 232; Thompson v. 
 Berry, 1 Cranch C. Ct. 45; Mcllvoy v. Cockran, 2 A. K. Marsh. 270; 
 Eobinson v. Hawkins, 4 T. B. Mon. 136; Baldwins;. Hayden, 6 Conn. 
 453; Hill v. Rogers, 2 la. 67; McCarty ». Fremont, 23 Cal. 196; Pitford 
 V. Armstrong, Wright, 94; Woodman v. Howell, 45 111. 367; Newkirk v. 
 Sabler, 9 Barb. 652; Jones v. Gale, 22 Mo. App. 637; Bliss ». Johnson, 
 73 N. Y. 529; Simmonds v. Holmes, 61 Conn. 1. See post, p. 200. 
 
202 GENERAL EXCEPTIONS. 
 
 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, for 
 a man cannot be held to form a precise judgment under 
 such conditions. 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 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 ap- 
 plies (so far as it is the law) only to criminal liability (y). 
 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 supposition that it is really 
 loaded and capable of shooting. 
 
 Killing of animals in defence of property. Cases have 
 arisen on the killing of animals in defence of one's prop- 
 erty. Here, as elsewhere, the test is whether the party's 
 act was such as he might reasonably, in the circumstances, 
 
 M See Stephen, Digest of Criminal this snhjeot is in the eaily treatises on 
 Iiaw, art. 200. Most of the authority on Pleas of the Crown. 
 
 KiUing of animals In defence of property. It may be stated as a gen- 
 eral rule that the killing of a trespassing animal is not jastiflable. John- 
 son V. Patterson, 14 Conn. 1 ; Ford v. Taggart, 4 Tex. 492; Tyner v. Cory, 
 5 Ind. 216; Holson v. Perry, 1 Hill (S. C), 277; Clark v. Keliher, 107 
 Mass. 406; Livermore v. Blatchelder, 141 Mass. 179; Sosat w. State, 2 
 Ind. App. 586; 28 N. E. Rep. 1017. 
 
 But where the owner of property has reasonable cause to suppose 
 that his property is about to be substantially or Irreparably injured by 
 an animal and that the killing of the animal is the only available method 
 of preventing such injury, he may slay the animal. Parrott v. Hartsfleld, 
 4 Dev. & B'. 110; Hinckley v. Emerson, 4 Cow. S51; Boescher v. Lutz, 13 
 Daly, 28; Dunning v. Bird, 24 111. App. 270; Lipe v. Blackwelder, 25 HI. 
 App. 123. 
 
PRIVATE DEFENCE. 203 
 
 think necessary for the prevention 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, English and American, reviewed (2). 
 Some of these, such as Deane v. Clayton (a), turn lesson 
 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 immaterial 
 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 actually 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 proceeding from any 
 other act lawful in itself. It has to be considered, how- 
 ever, that a man repelling imminent danger cannot be 
 expected to use as much care as he would if he had time to 
 act deliberately. 
 
 Assertion of rights distinguished from self-defence. 
 
 Self-defence does not include the active assertion of a dis- 
 
 (z) Aldrich T. Wright (1873), 53 N. H. (o) 7 Tannt. 489, the case of dog- 
 
 398, 16 Am. Kep. 339. The decision was epears, where the Court was equally 
 
 that the penalty of a statute ordaining a divided (1817) ; Jordin v. Crump (1841) , 8 
 
 close time for minks did not apply to a M. & W. 782, where the Court took the 
 
 man who shot on his own land, in the view of Gibbs O. J. in the last case, on 
 
 close season, minks which he reasona- the ground that setting dog-spears was 
 
 bly thought were in pursuit of his geeee. not in itself illegal. Notice, however. 
 
 Compare Taylor app. Newman reap. was pleaded. 
 (1863), 4 B. & S. 89, 32 L. J. M. C. 186. 
 
 Assertion of rights distinguished from self-defence. In an attempt 
 by the owner, to recapture property from the possession of a tres- 
 passer, the law does not justify the owner In a resort to the use of a 
 deadly weapon in such manner as to be reasonably calculated to endan- 
 ger human life, although, because of the superior physical power of the 
 trespasser, such object cannot be otherwise accomplished, but leaves 
 him lO his legal remedy. Kimple v. State, 32 Ind. 220; McCarty v. 
 
204 GEIfEEAL EXCEPTIONS. 
 
 puted right against an attempt to obstruct its exercise. I 
 am not justified in shooting, or offering to shoot, one who 
 obstructs my right of way, though I may not be able to 
 pass him otherwise, and though I am justified in resisting, 
 within due bounds, any active force used on his part. It 
 seems the better opinion " that the use of force which 
 inflicts or may inflict grievous bodily harm or death — of 
 what in short may be called extreme force — is justifiable 
 only for the purpose of strict self-defence "(b). I may be 
 justified in pushing past the obstructor, but this is not an 
 act of self-defence at all ; it is the pure and simple exercise 
 of my right itself (c). 
 
 Many interesting questions, in part not yet settled, may 
 be raised in this connexion, but their interest belongs for 
 most practical intents to public and not to private law. It 
 must not be assumed, of course, that whatever is a sufli- 
 cient justification or excuse in a criminal prosecution will 
 equally sufSce in a civil action. 
 
 Injury to third persons from acts of self-defence. 
 
 Some of the dicta in the well-known case of Scoit v. /Shep- 
 herd (d) go the length of suggesting that a man acting on 
 
 (6) Dloey, Law of the Constltntion, (c) Dicey, op. cit. HI. 
 
 3rd ed. 1889, appx. 410, which see for Id) 2 W. Bl. 892. 
 
 fnllei discassion. 
 
 Fremont, 23 Cal. 196 ; KlfE v. Ypumans, 86 N. Y. 324; Woodman v. How- 
 ell, 45 111. 267; State v. Burke, 82 N. C. 551; Brothers v. Morris, 49 Vt. 
 ■ 460; Abt v. Burghein, 80 111. 92; Bliss v. Johnson, 73 N. Y. 529; Johnson 
 >. Perry, 56 Vt. 703; 48 Am. Eep. 826; Higgins v. Minaghan, 76 Wis. 
 298; 47 N. W. Eep. 941; Mclntlre v. Plalsted, 57 N. H. 606; Anderson v. 
 Smith, 7 111. App. 354; Marshall v. Blackshire, 44 la. 476; Parsons «. 
 Brown, 15 Barb. 590. See the cases cited on the preceding pages of 
 this subject. 
 
 Injuries to third, persons fc'om acts ol self-defence. In the case of 
 Morris v. Piatt {52 Conn. 75, supra, p. 125) it was held, that where a 
 person in lawful self-defence and without negligence, fires a pistol at an 
 assailant, and missing him wounds an innocent bystander, he is not 
 liable for the injury. 
 
WHERE PLAINTIFF A WRONG-DOEE. 205 
 
 the spur of the moment under " compulsive necessity " 
 ( the expression of De Grey C. J.) is excusable 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 Eyal, if he had been 
 worth suing and had been sued, could have successfully 
 made such a defence. They " had aright to protect them- 
 selves by removing the squib,but should have taken care " — 
 at any rate such care as was practicable under the circum- 
 stances — " to do it in such a manner as not to endamage 
 others" (e). 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 assail- 
 ant {f). Perhaps this is a harsh opinion, but it seems 
 better, if the choice must be made; than holding that one 
 may with impunity throw a lighted squib across a market- 
 house full of people in order to save a stall of gingerbread. 
 At all events a man cannot justify doing for the protection 
 of his own property a deliberate act whose evideut tendency 
 is to 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 {g). 
 
 13. — Plaintiff a lorong-doer. 
 
 Harm suffered by a wrong-doer : doubtful whether 
 any special disability. Language is to be met with in 
 some books to the efl'ect that a man cannot sue for any 
 injury suffered by him at a time when he is himself a 
 
 (e) Blactstone J. In his dissenting Co. (1884), 13 Q. B. Dlv. 131, B3 L. J. Q. B. 
 
 judgment. 285, distinguishing the case of acts law- 
 
 (/) D. 9. 2, ad 1. Aquil 45, § 4 ; supra, fill In themselves which are done by way 
 
 pp. 123, 124. of precaution against an Impending 
 
 (^) WTialte]/ v. tunc, and Torkshire R. common danger. 
 
206 GENERAL EXCEPTIONS. 
 
 wrong-doer. But there is no such general rule of law. 
 If there were, one consequence would be that an occupier 
 of land (or even a fellow trespasser) might beat or wound 
 a trespasser without being liable to an action, whereas the 
 right of using force to repel trespass to land is strictly lim- 
 ited; or if ii man is riding or driving at an incautiously fast 
 pace, anybody might throw stones at him with impunity. 
 In Bird v. BolbrooJe (h) a, trespasser who was wouuded by 
 a spring-gun set without notice 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 " (i). It does not 
 appear on the whole that a plaintiff is disabled from recover- 
 ing 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 neces- 
 sary to assume any special rule of this kind. It would be 
 no answer to an action for killing a dog to show that the 
 
 (ft) 4Blng. 628. Cp. p. 151 above. The which made the setting of spring-guns 
 cause of action arose, and the trial took unlawful. 
 
 place, before the passing of the Act («) JBames v. Ward (1850), 9 0. B. 392, 
 
 19 L. J. C. P. 195. 
 
 Harm suflered by a wrong-doer. The authorities in both England 
 and America agree- that hamanlty requires that the person of a tres- 
 passer be not exposed to bodily injury or death on the mere ground that 
 ha is at the time acting in violation of the law. In the case of Hooker 
 V. Miller (37 la. 613), plaintiff, having no knowledge of a spring-gun 
 set in defendant's vineyard, entered therein for the purpose of taking 
 grapes without permission, and coming in contact with the gun received 
 a severe wound. The defendant was held responsible for the injury; 
 citing Loomis v. Terry, 17 Wend. 496; Shufey ». Bartley, 4 Sneed, 58. 
 See Aldrich v. Wright, 53 N. H. 396; 16 Am. Eep. 339; Churchill v. 
 Hulbert, 110 Mass. 42 ; 14 Am. Rep. 578. 
 
 The mere fact that a person is a tort-feasor does not prevent him 
 from recovering for a subsequent wrong done him. Ketcher v. Cole, 26 
 Vt. 170. See Gray v. Ayres, 7 Dana, 375; Love v. Moynehan, 16 111. 277; 
 Ogden V. Claycomb, 52 111. 365; Getzler u. Witzee, 82 111. 392. But see 
 Jones V. Gale, 22 Mo. App. 637; Phillips v. Kelly, 29 Ala. 628. 
 
WHERE PLAINTIFF A WRONG-DOEE. 207 
 
 owner was liable to a penalty for not having taken out a 
 dog licence in due time. If, again, A. receives a letter 
 containing defamatory statements concerning B., and reads 
 the letter aloud in the presence of several persons, he may 
 be doing wrong to B. But this will not justify or excuse 
 B. if he seizes and tears up the letter. A. is unlawfully 
 possessed of explosives which he is carrying in his pocket. 
 B., walking or running in a hurried and careless manner, 
 jostles A. and so causes an explosion. Certainly A. cannot 
 recover against B.*for any hurt he takes by this, or can at 
 most recover nominal damages, as if he had received a 
 harmless push. But would it make any difference if A.'s 
 possession were lawful? Suppose there were no statutory 
 regulation at all : still a man going about with sensitive 
 explosives in his pocket would be exposing himself to an 
 unusual risk obvious to him and not obvious to other 
 people, and on the principles already discussed would have 
 no cause of action. And on the other hand it seems a 
 strong thing to say that if another person does know of 
 the special danger, he does not become bound to take 
 answerable care, even as regards one who has brought 
 himself into a position of danger by a wrongful act. Cases 
 of this kind have sometimes been thought to belong to the 
 head of contributory negligence. But this, it is submitted, 
 is an unwarrantable extension of the term, founded on a 
 misapprehension of the true meaning and reasons of the 
 doctrine as if contributory negligence were a sort of 
 positive wrong for which a man is to be punished. This, 
 however, we shall have to consider hereafter. On the 
 whole it may be doubted whether a mere civil wrong- 
 doing, such as trespass to land, ever has in itself the effect 
 now under consideration. 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 him- 
 self to a known risk cannot recover, or the still broader 
 rule that a defendant is liable only for those consequences 
 
208 GENERAL EXCEPTIONS. 
 
 of his acts which are, in the sense explained in a former 
 chapter (k), natural and probable. 
 
 Conflict of opinion in United States in cases of Sunday 
 travelling. In America thei-e has been a great question, 
 upon which there have been many contradictory decisions, 
 whether the violation of statutes against Sunday travelling 
 is in itself a bar to actions for injuries received in the 
 course of such travelling through defective condition of 
 roads, negligence of railway companies, and the like. In 
 Massachusetts it has been held that a plaintiff in such cir- 
 cumstances cannot recover, although the accident might 
 just as well have happened on 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 con- 
 sidered good law, and have been expressly dissented from 
 in some other States (I). 
 
 Cause of action connected with unlawful agreement. 
 
 It is a rule not aonfined to actions on contracts that 
 " the plaintiff cannot recover where in order to maintain his 
 supposed claim he must set up an illegal agreement. to 
 which he himself has been a party " (mj : but its applica- 
 tion 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. 32 above. Torts, 166. And see White v. Lang, 128 
 
 (Z) SvMon V. Town of Wauwalosa Mass. 598. 
 
 (Wlaconsln, 1871), Blgelow L. C. 711, (ira) ManleJ., Fivaz \. mcholts (.ISiS), 
 
 and notes thereto, pp. 721-2; Cooley on 2 C. B. 501, 512. 
 
209 
 
 CHAPTER V. 
 
 OF REMEDIES FOR TORTS. 
 
 Diversity of remedies. At common law there were 
 only two kinds of redress for an actionable wrong. One 
 was in those cases, — exceptional cases according to modern 
 law and practice — where it was and is lawful for the 
 aggrieved party, as the common phrase goes, to take the 
 law into his own hands. The other way was an action for 
 damages (a). Not that a suitor might not obtain in a 
 proper case, other and more effectual redress than money 
 compensation ; but he could not have it from a court of 
 common law. Specific orders and prohibitions in the 
 form of injunctions or otherwise were (with few ex- 
 ceptions, if any) (6) 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. There- 
 fore we have at this day, in considering one and the same 
 jurisdiction, to bear in mind the manifold forms of legal 
 redress which for our predecessors were separate and un- 
 connected incidents in the procedure of different courts. 
 
 (a) Possession could not be recov- damns) were applicable to the redress 
 
 ered, of course, in an action ol eject- of purely private wrongs, though they 
 
 ment. But this was an action of trespass might be available for a private person 
 
 In form only. In substance it took the wronged by a. breach of public duty, 
 
 place of the old real actions, and it is Under the Common Law Procedure Acts 
 
 sometimes called a real action. Detinue the superior courts of common law had 
 
 was not only not a substantial excep- limited powers ol granting Injunctions 
 
 tlon, but hardly even a formal one, for and administering equitable relief, 
 
 theaotion was not really in tort. These were found of little importance 
 
 (6) 1 do not think any of the powers in practice, and there is now no reason 
 
 01 the superior courts of common law lor dwelling on them. 
 to issue specific commands (e. g. man- 
 
 14 
 
210 EEMEDIES FOR TORTS. 
 
 Self-lielp. Kemedies available to a party by his own 
 act alone may be included, after the example of the long 
 established German usage, in thei expressive name of self- 
 help. The right of private defence appears at first sight 
 to be an obvious example of this. But it is not so, for 
 there is no question of remedy in such a case. We are 
 allowed to repel force by force " not for the redress of 
 injuries, but for their prevention" (c); not in order to 
 undo a wrong done or to get compensation for it, but to cut 
 wrong short before it is done; and the right goes only 
 to the extent necessary for this purpose. Hence there 
 is no more to be said of self-defense, in the strict sense, in 
 this connexion. It is only when the party's lawful act re- 
 stores 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 
 trespasser, retaking of goods by the rightful possessor, 
 distress damage feasant, and abatement of nuisances. 
 Peaceable re-entry upon land where there has been a 
 wrongful change of possession is possible, but hardly occurs 
 in modern experience. Analogous to the right of retaking 
 goods is the right of appropriating or retaining debts under 
 certain conditions; and various forms of lien are more or 
 less analogous to distress. These, however, belong to the 
 domain of contract, and we are not now concerned with 
 them. Such are the species of remedial self-help recog- 
 nized in the law of England. In every case alike the right 
 
 (o) This Is well noted In Cooley on Torts, 50. 
 
 Self-help. The above doctrine is accepted by the courts of the United 
 States and its application and enlargement is illustrated by the cases 
 cited In the American notes upon Sblf-dkfkncb, anSe, p. 20; Assertion 
 OF Rights Distinguished feom Self-defbncb, ante, p. 203- and 
 Abatement, 'post, p. 369. 
 
DAMAGES. 211 
 
 of the party is subject to the rule that no greater force 
 must be used, or damage done to property, than is neces- 
 sary 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 (a). 
 
 Judicial remedies: damages. 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 dam- 
 ages (e). Whenever an actionable wrong has been done, 
 the party wronged is entitled to recover damages ; though, 
 as we shall immediately see, this right is not necessarily a 
 valuable one. His title to recover is a conclusion of law 
 from the facts determined in the cause. How much he 
 shall recover is a matter of judicial discretion, a discretion 
 
 (<J) Cp. Blackstone, Bt. ili. u. 1. j ect to so well known a work as " Mayne 
 
 (e) It is hardly needful to refer the on Damages." 
 reader for fuller illustration of the sub- 
 Judicial remedies: damages. In the case of Dwyer v. St. Louis & S. 
 F. E. Co. (52 Fed. Rep. 89), the court in following Schumacher w. Rail- 
 road Co. (39 Fed. Rep. 174), said: " At common law, If damages given 
 by a jury were so extravagant as to make it probable that the jury was 
 actuated by passion or prejudice, a verdict might, upon this ground, be 
 set aside." See Tennessee C. & R. Co. v. Roddy, 85 Tenn. 400; Kelly v. 
 McDonald, 39. Ark. 387; Toledo, etc. R. Co. v. ArnolU, 43 111. 418; Jones 
 o. Jennings, 10 Humph. 428; Delphi u. Lowery, 74 Ind. 520; Goodallt). 
 Shurman, 1 Head, 209; P., C. & St. L. R. Co. v. Sponier, 85 Ind. 165; 
 8 Am. & Eng. R. Cas. 453; Graham v. Pacific R. Co., 66 Mo. 536; W. U. 
 Tel. Co. V. Simpson, 73 Tex. 422; 11 S. "W. Rep. 385; Berry v. Vreeland, 
 21 N. J. L. 183. So, where the damages were clearly insufficient. 
 McDonald v. Walker, 40 N. Y. 551 ; Chesapeake etc. E. Co. v. Higgins, 85 
 Tenn. 621; Nicholson v. New York, etc. R. Co., 22 Conn. 74; Donovan v. 
 6ay, 97 Mo. 440; 11 S. W. Rep. 44; Matthews v. Mi.=souri P. Ry. Co., 26 
 Mo. App. 75. 
 
 In the notes to this and subsequent paragraphs upon the subject of 
 damages it is impracticable to cits more than a few of the late cases and 
 the leading cases. 
 
212 REMEDIES FOB TORTS. 
 
 exercised, if a jury tries the cause, by the jury uflder the 
 guidance of the judge. As we have had occasion to point 
 out in a former chapter (/), the rule as to " measure of 
 damages" is laid down by the Court and applied by 
 the jury, whose application of it is, to a certain ex- 
 tent, subject to review. The grounds on which the ver- 
 dict 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 difier) (g), but that the jury did not exercise a 
 due judicial discretion at all (h). Among these grounds 
 are the awarding of manifestly excessive or manifestly 
 inadequate damages, such as to imply that the jury disre- 
 garded, either by excess or by defect, the law laid down to 
 them as to the elements of damage to be considered (»), or, 
 it may be, that the verdict represents a compromise between 
 jurymen who were really not agreed on the main facts in 
 issue (j"). 
 
 Nominal damages. Damages may be nominal, ordinary, 
 or exemplary. Nominal damages are a sum of so little 
 value as compared with the cost and trouble of suing 
 that it may be said to have " no existence in point of 
 quantity " (k), such as a shilling or a penny, which sum is 
 awarded with the purpose of not giving any real compen- 
 sation. Such a verdict means one of two things. Accord- 
 ing to the nature of the case it may be honourable or 
 contumelious 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 
 
 (/) p. 27, above. on the facta shown, a verdict for 7000J. 
 
 Cjr) The principle is famUiai. See It was set aside on the ground of the 
 
 stated, e. g. B Q, B. Dlv. 85. damages being insnfBcient. 
 
 (ft) See Metropolitan R. Co.y. Wright (J) Falvey v. Stanford (1874),L. E. 10 
 
 (1886), 11 App. Oa. 152. Q. B. 54, U L. J. Q. B. 7. 
 
 (i) PhUUps V. L. cf S. W. B. Co. (1879), (*) Maule J. 2 O. B. 499. 
 B Q. B. Div. 78, 49 L. J. Q. B. 233, where- 
 
 lAjli i 
 
NOMINAL DAMAGES. 213 
 
 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 not worth suing for, or that his own conduct 
 had been such that whatever he did suffer at the defendant's 
 hands was morally desei-ved. The former ^tate of things, 
 where the verdict really operates as a simple declaration of 
 rights between the parties, is most commonly exemplified 
 in actions of trespass brought to settle disputed claims to 
 rights of way, rights of common, and other easements and 
 profits. It is not uncommon to give forty shillings damages 
 in these cases if the plaintiff establishes his right, and if it 
 is not intended to express any disapproval of his con- 
 duct (?). The other kind of award of nominal damages, 
 
 (0 Under the Tarious etatntee as to quently juries asked before giving their 
 
 costs which were in force before the verdict what was the least sum that 
 
 Jodlcatnie Acts, 40«. was, subject to a would carry costs : the general practice 
 
 few exceptions, the least amount of of the judges was to refuse this lufor- 
 
 xlamages which carried costs without a matlon. 
 special certiflcate from the judge. Fre- 
 
 Nominal damages. la practice, nominiil damages is defined as: "A 
 trifling sam awarded to a plaintifi in an action, where there is no sub- 
 stantial loss or injury to be compensated, but still the law recognizes a 
 techuical invasion of his rights or a breach of the defendant's duty." 
 Black's Law Die. 818. Illustrating this definition, see the following 
 cases: Dixon v. Clow, 24 Wend. 191; Hatch v. Donnell, 74 Me. 163; 
 Champion «. Vincent, 20 Tex. 811; Smith v. Whiting, 100 Mass 122; 
 Lake Erie & W. K. Co. ». Christison, 39 111. App. 495; Gifford ». "Weber, 
 38 Mo. App. 695; McDonnell v. Cambridge B. Co., Mass. 159; 23 N. E. 
 Eep, 841; Becker v. Janinski, 27 Abb. N. C. 45; 15 N. Y. S. Eep. 675; 
 Drum V. Harrison, 83 Ala. 384; 3 So. Kep. 715; Little v. Slauback, 63 N. 
 C. 285; Cory v. Silcox, 6 Ind. 39; Wright v. Stowe, 4 Jones L. 516; Owen 
 V. O'Reilly, 20 Mo. 603; Southern E. Co. v. Kendrick, 40 Miss. 374; 
 Brown v. Emerson, 18 Mo. 103; Custard v. Burdett, 15 Tex. 456. 
 
 A cause will not be reversed for failure to award nominal damages. 
 Ellithorpe o. Reidessell (la.), 55 N. W. Hep. 313; Machine Co, v. Haven, 
 65 la. 359; Eaton v. Lyman, 30 Wis. 41; Watson v. Moeller, 63 la. 161. 
 
 In an action for damage for trespass to t)rj the title, nominal damages 
 will establish the plaintiff's title. Bassett ii. Salisbury, 8 Fost. 438; 
 HoDsee v. Hammond, 39 Barb. 89; Devendorf v. Wert, 42 Barb. 227; 
 Delaware & H. C. Co. v. Torrey, 33 Pa. St. 143. 
 
214 KEMEDIES FOB TORTS. 
 
 where the plaintiff's demerits earn him an illusory sum 
 such as one farthing, is illustrated chiefly by cases of 
 defamation, where the words spoken or written by the 
 defendant cannot be fully justified, and yet the plaintiff 
 has done so much to provoke them, or is a person of such 
 generally worthless character, as not to deserve, in the 
 opinion of the jury, any substantial compensation (/re). 
 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. 
 
 Nominal damages possible only when an absolute right 
 is infringed. The enlarged power of the. Court over costs 
 since the Judicature Acts has made the question of nominal 
 damages, which, under the old procedure, were described as 
 
 (m) Kelly M. Sherlock (1866), L. S. 1 Q. gare a farthing damages, and the Court, 
 
 B. 6tJ6, 35 Ii. J. Q. B. 209, is a case of this though not satisGcd with the verdict, 
 
 Mnd where, notwithstanding that the refused to disturb it. 
 libels sued for were very gross, the jury 
 
 Nominal daraages possible only -when an absolute tight is infringed. 
 Some damage is presumed to flow from the violation of a right. Fitz- 
 patrick c. Boston & M. R. B., 84 Me. 33; 24 At. Rep. 432; Webb v. Port- 
 land Mfg. Co., 3 Sumn. 189; Mitchell v. Mayor of Rome, etc., 49 Ga. 19; 
 Monroe v. Stickney, 48 Me. 462; Cowley v. Davidson, 10 Minn. 392; 
 Smith V. "Whiting, 100 Mass. 122; Fullam v. Stearns, 30 Vt. 443; Bagby 
 V. Harris, 9 Ala. 173; Seatt>. Moreland, 7 Humph. 575; Paul v. Slason, 22 
 Vt. 231; Devendorf v. Werf, 42 Barb. 227; Bassett c. Salisbury Mfg. Co., 
 28 N. H. 438; Stowell v. Lincoln, 11 Gray, 434; Seneca Road Co. i). 
 Auburn, etc. R. Co., 5 Hill, 175; Allaire v. Whitney, 1 Hill, 484; Town- 
 ' send V. Bell, 62 Hun, 306 ; 17 N. Y. S. Rep. 210. 
 
 In America, contrary to the rule in England, public oflScers are liable 
 in nominal damages for breach of their duty to individuals, although no 
 actual damage results. Moore v. Floyd, 4 Oreg. 101 ; Patterson v. Wester- 
 velt, 17 Wend. 543; Hamilton o. Ward, 4 Tex. 366; Palmer ». Gallup, 16 
 Conn. 565; Laflin o. Willard, 16 Pick. 64; Bondnrant v. Lane, 9 Port. 
 484; Doggett v. Adams, I Me. 198; Rich v. Bell, 16 Mass. 294. 
 
 Nominal damages are recoverable for the violation of a right although 
 the injury results in an actual benefit to the complainant. Bond v. Hil- 
 ton, 2 Jones L. 149; Stowell v. Lincoln, 11 Gray, 434; Jewett v. Whit- 
 ney, 43 Me. 242; Hibbard v. W. U. Tel. Co., 33 Wis. 658; Francis ». 
 Schoellkopf, 53 N. Y. 162. 
 
NOMINAL DAMAGES. 215 
 
 " a mere peg on which to hang costs " ( n), much less import- 
 ant than it formerly was. But the possibility of recovering 
 nominal damages is still a test, to a certain extent, of the 
 nature of the right claimed. Infi^ingements of absolute 
 rights like those of personal security and property give a 
 cause of action without regard to the amount of harm 
 done, or to there being harm estimable at any substantial 
 sum at all. As Holt C. J. said in a celebrated passage of 
 his judgment in Ashby v. While (o), " a damage is not 
 merely pecuniary t, but an injury imports a damage, when a 
 man is thereby hindered of his right. As in an action for 
 slanderous words, though a man does not lose a penny by 
 reason of the speaking them, yet he shall have an action. 
 So if a man gives another a cuff on the ear, though it cost 
 him nothing, no not so much as a little diachylon, yet he 
 shall have his action, for it is a personal iiijury. 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." 
 
 Cases wbere damage is the gist of the action. On the 
 other hand, there are cases even in the law of property 
 where, as it is said, damage is the gist of the action, and 
 there is not an absolute duty to forbear from doing a cer- 
 tain thing, but only not to do it so as to cause actual 
 damage. The right to the support of land as between 
 adjacent owners, or as between the owner of the surface 
 and the owner of the mine beneath, is an example. Here 
 there is not an easement, that is, a positive right to restrain 
 the neighbour's use of his land, but a right to the un- 
 
 (ji) By Maule J. (1846), in Beaumont of the Jndloatnre Acts and Hnlea of 
 
 V. Greathead, 2 O. B. 499. Under the Conit In abrogating the older statutes 
 
 present procednre costs are In the dls- was settled In 1878 by Gametty. Bradley, 
 
 cretion of the Court; the costs of a 3 App. Oa. 944, 48 L. J. Bx. 186. A sketch 
 
 cause tried oy jury follow the event of the history of the subject is given in 
 
 (without regard to amount of damages) Lord Blackburn's judgment, pp. 962, aqq. 
 unless the judge or the Court otherwise (o) 2 Lord Eaym. at p. 955. 
 
 orders: Order LXV.r.l,&c. The effect 
 
216 REMEDIES FOR TORTS. 
 
 disturbed enjoyment of one's own. My neighbour may 
 excavate in his own land as much as he pleases, unless and 
 until there is actual damage to mine : then, and not till 
 then, a cause of action arises for me (p). Negligence, 
 again, is a cause of action only for a person who suffers 
 actual harm by reason of it. A man who rides furiously 
 in the street of a town may thereby render himself liable 
 to penalties under a local statute or by-laws ; but he does 
 no wrong to any man in particular, and is not liable to a 
 civil action, so long as his reckless behaviour is not the 
 cause of specific injury to person or property. The same 
 rule holds of nuisances. So, in an action of deceit, the 
 cause of action is the plaintiff's having suffered damage by 
 acting on the false statement made to him' by the defend- 
 ant (§'). 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 damage there is not much 
 of it, and that the verdict is accordingly for a sm^U 
 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 suffered. In a railway accident due 
 
 (p) BacMouse V. £(»u»ni (1861), 9 H. L>. is sometlAies quoted as If it were an 
 
 0. 503, 34, L.J. Q. B. 181; ilfacfeeZis. Z>ar- autliority, that no actaal damage is 
 
 ley Main Colliery Co. (188o), 11 App. Ca. necessary to sustain an action of deceit. 
 
 127. But careful examination will show that 
 
 (?) Fonti/ex v. Bignold, 3 M. & G. 63, it is far from deciding this. 
 
 Cases where damage is the gist of the action. A property owner is 
 liable for injuries to the adjoining property from the wrongful removal 
 of lateral support. Freeman v. Sayre, 48 N. J, L. 37; Stevenson v. Wal- 
 lace, 27 Gratt. 77; Farrand v. Marshall, 19 Barb. 380; Coleman v. Chad- 
 wick, 80 Pa. St. 81; Foley v. Wyeth, 2 Allen, 131; Charless ». Rankin, 22 
 Mo. 566; Guest v. Reynolds, 68 III. 478 ; Phillips », Bordman, 4 Allen, 
 147. 
 
 But a man may use his land as he pleases so long as his use of It does 
 not damage his neighbor. Penn. Coal Co. v. Sanderson, 113 Pa. St. 1^6; 
 Mitchell I). Mayor of Rome, etc., 49 Ga. 19; Gilmore v. Drisoall, 122 Mass. 
 199 ; Livington o. Moingena Coal Co., 49 la. 369; Lasala u. Holbrook, 
 4 Paige, 169. 
 
MEASURE OF DAMAGES. 217 
 
 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. 
 
 Peculiarity of law of defamation. In the law of 
 slander we have a curiously fine line between absolute and 
 conditional title to a legal remedy ; some kinds of spoken 
 defamation being actionable without any allegation or 
 proof of special damage (in which case the plaintiff is en- 
 titled to nominal damages 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 satisfactory. Probably the existing condition of 
 the law is the result of some obscure historical accident (?'). 
 
 Ordinary damages. Ordinary damages are a sum 
 awarded as a fair measure of compensation to the plaintiff, 
 the amount being, as near as can be estimated, that by 
 
 (r) See more in Oh. VII. below. 
 
 Ordinary damages. The American cases sustain tlie statement of the 
 text. In Baker v. Drake (53 N. Y. 216), the court said : "An amount 
 sufficient to indemnify the party injured for the loss, which is the natural, 
 reasonable and proximate result of the wrongfur act complained of, and 
 which a proper degree of prudence on the part of the complainant would 
 not have averted, is the measure of damages which juries are usually 
 iustructed to award, except in cases, which punitive damages are allow- 
 able." 
 
 The measure of damages is the actnal damage done. See Brewster v. 
 Van Liew, 119 111. S62; Burkett «). Lanata, 15 La. An. 337; Township of 
 Martic, 162 Pa. St. 68; 25A,t. Rep. 178 ; 31 W. N. C. 180; South Covington 
 etc., Ey. Co. v. Gest, 34 Fed. Eep. 628; Hartshorn v. Chaddock, 13jLEi-X 
 116; 31 N. E. Rep. 997 ; Kansas City, etc. E. Co. v. Cook (Ark.), 21 S. TE . 
 Eep. 1066; Young v. Gentis (Ind.), 32 N. E. Eep. 796; Perrin c. Wells, 
 1 55 Pa T'St. 299 ; 26 At. Eep. 54 3 ; Stoner v. Texas S. P. Ey. Co., 45 La. An. 
 116; 11 So. Eep. 875; St.Toiiis, etc. Ry. Co. v. Lyman (Ark.), 22 S. W. 
 Eep. 170; Eeynolds v. Franklin, 44 Minn. 30; 46 N. W. Rep. 139; Easter- 
 
218 EEMEDIES FOB TOETS. 
 
 which he is the worse for the defendant's wrong-doing, but 
 in no case exceeding the amount claimed by the plaintiff 
 himself (s). Such amount is not necessarily that which it 
 would Cost to restore the plaintiff to his former condition. 
 Where a tenant for years carried away a large quantity of 
 valuable soil from his holding, it was decided that the 
 reversioner could recover not what it would cost to replace 
 
 (s) A jury has been known to find a orilinary case. " It will not do for Mr 
 
 verdict for a greater eum tlian was JnsticeEay, or for tliisConrt, to exercise 
 
 claimed, and the jndge to amend the that unknown eqaity which is sometimes 
 
 statement of claim to enable himself to exercised by juries ; " Cotton L. J., 
 
 give jndgment for that greater sum. But Dreyfus y. Peruvian Guano Co. (1S89), 43 
 
 this is an extreme use of the power of Ch. Div. 316, 327. 
 the Court, justifiable only in an extra- 
 
 brook V. Erie R. Co., 51 Barb. 94; Vermilyaw. Chicago, etc. E. Co., 66 
 la. 606; Willey v. Hunter, 57 Vt. 479; Sabine etc. K. Co. v. Joachimi, 58 
 Tex. 456; Van Deusen v. Young, 29 Barb. 9; Herdic«. Young, 55 Pa. St. 
 176; Georgia Pac. E. Co. v. Fnllerton, 79 Ala. 298; Farrell v. Calwell, 30 
 N. J. L. 123; Cressey v. Parks, 76 Me. 532; Hine ». Cushing, 53 Hun, 519 
 6 N. Y. S. Eep. 850. The measure of damage for injury to a schooner is 
 the cost of repairs, and not the difference between her value before and 
 her value after the injury. Union Ice Co. v. Crowell, 56 Fed. Eep. 87. 
 
 The same rule applies to in j dries to vehicles by collision In the street. 
 Travis v. Pierson, 43 111. App. 579. 
 
 A special value to the owner, such as family portraits possesses, Is to 
 be considered. Spicer v. Waters, 65 Barb. 227; Houston, etc. E. Co. v. 
 Burke, 55 Tex. 523 ; 40 Am. Eep. 808 ; Green v. Boston, etc. E. Co., 128 
 Mass. 221. 
 
 The elements of damage to be considered In cases of personal injury 
 are the plaintiff's loss of capacity, loss of time, loss of position, and the 
 expenses, pain and insult resulting from the injury. City of Joliet v. 
 Conway, 119 111. 489; George y. HaverhiU, 110 Mass. 506; Wadeo. Leroy, 
 20 How. 34 ; Hall v. Fond du Lac, 42 Wis. 274; Eockwell v. Third Av. R. 
 Co., 53 N. Y. 625 ; Tomlinson v. Derby, 43 Conn. 562; Houston, etc. E. 
 Co. V. Boehm, 67 Tex. 152; 9 Am. & Bug. E. Cas. 366; Brghott v. Mayor 
 etc. 96 N. Y. 264; Luck v. Eipon, 52 Wis. 196; Cracker v. Chicago, etc. 
 E. Co., 36 Wis. 657; 9 Am. Ey.Eep. 118; Chicago etc. E. Co. v. Wilson, 
 63 111. IgTj Hammond v. Mukwa, 40 Wis. 35; Chicago v. Elzeman, 71 111. 
 ""iBTTScott «. Montgomery, 96 Pa. St. 444; Wabash W. Ry. Co. v. Morgan, 
 132 Ind. 430; 31 N. E. Eep. 661; 32 Id. 86; Howard Oil Co. v. Davis, 76 
 Tex. 630; 13 S. W. Eep. 665; Whelan v. New York, etc. E. Co., 38 Fed|j 
 Eep. I S; Ohio & M. Ey. Co. v. Hecht, 115 Ind. 443; 17 N. E. EepT^T- 
 Sidekum v. Wabash, etc. Ey. Co., 93 Mo. 400; 4.S.JV_. Eep.JOl; Conner 
 V. Pioneer Fire-proof Const. Co., 29 Fed. Rep. 629. 
 
EXEMPLARY DAMAGES. 219 
 
 the soil, but only the amount by which the vahie of the 
 reversion was diminished (i). In other words compensa- 
 tion, not restitution, is the proper test. Beyond this it is 
 hardly possible to lay down any universal rule for ascer- 
 taining the amount, the causes and circumstances of action- 
 able damage being infinitely various. And in particular 
 classes of cases only approximate generalization is possible. 
 In proceedings for the recovery of specific property or its 
 value there is not so much difficulty in assigning a measure 
 of damages, though here too there are unsettled points (m). 
 But in cases of personal injury and consequential damage 
 by loss of gains in a business or profession it is not possible 
 either completely to separate the elements of damage, or 
 to found the estimate of the whole on anything like an 
 exact calculation (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 circum- 
 stances, such as the wealth and condition iu 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. 
 
 Exemplary damages. One step more, and we come to 
 cases where there is great injury without the possibility of 
 measuring compensation 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 vindictive. The 
 kind of wrongs to which they are applicable are those which, 
 besides the violation of a right or the actual damage, 
 import insult or outrage, and so are not merely injuries 
 
 (0 Whitham V. Karalum (1885-6), 16 Q. («) See Mayne on Damages, c. 13. 
 
 B. Dlv. 613; cp. Rust v. Victoria Graving (.x) See the snmmlng-up of Field J. In 
 
 Dock Co. (1887) , 36 Oh. Dlvi 113 ; Chifferiel PhUlips v. L. ^ S. W. S. Co. (1879) , B Q. 
 
 V. Watson (1888), 40 Oh. D. 45, 58 L. J. Ch. B. Div. 78, 49 L. J. Q. B. 233, which was 
 
 137 (compensation under conditions of In the main approved \>y the Court of 
 
 sale). Appeal. 
 
220 REMEDIES FOE TOKTS. 
 
 but iniuriae in the strictest Roman sense of the term. 
 The Greek uPpn perhaps denotes with still greater exactness 
 the quality of the acts which are thus treated. An assault 
 and false imprisonment under colour of a pretended right 
 in breach of the general law, and against the liberty of the 
 subject (y); a wanton trespass on land, persisted in with 
 violent and intemperate behaviour (z); the seduction of a 
 
 (H) Suckle V. Money (1763),2 Wil8.205, (a) Merest v. Harvey (1814), 5 Tannt. 
 
 one of tbe branches of the great case 142: the defendant was drank, and pas- 
 
 ot general warrants : the plaintiff was sing by the plaintiff's land on which the 
 
 detained abont six hoars and civilly plaintiff was shooting, insisted, with 
 
 treated, " entertained with beet-steaks oaths and threats, on joining in the 
 
 and beer," bnt the jury was upheld in sport; ayerdict passed for SU02., the faU 
 
 giving 3002. damages, because " it was a amount claimed, and it was laid down 
 
 most daring public attack made npou the that juries ought to be aUowed to pan - 
 
 liberty of the subject." ish insult by exemplary damages. 
 
 " ' ' y! ■ 
 
 Exemplary damages. It is an established rule of law that, " exem- 
 plary," " punitive," or " vindicitive " damages may be awarded by juries 
 by way of pttnishment in an amount not exceeding the sum sued for; and 
 this is trne although the damage is purely nominal. " The true theory 
 of exemplary damages is that of punishment involring the ideas of retri- 
 bution for wilful misconduct, and an example to deter its repetitions." 
 Alabama G. S. B. Co. v. Sellers, 93 Ala. 9; 9 So. Rep. 377; Alabama G. 
 S. B. Co. V. Frazier, 93 Ala. 45; 9 So. Bep. 303; Eemmitt v. Adamson, 
 44 Minn. 121; 46 N. W. Bep. 327; Samuels «. Bichmond & D. E. Co., 
 355. C. 493; 14 S. E. Bep. 943; Voltz v. Blackmar, 64 N. Y. 440; Sheick 
 V. Hobson, 64 la. 146; Parker v. Lanier, 82 Ga. 216; 8 S. E. Bep. 57; 
 Chiles V. Drake, 2 Mete. (Ky.) 146; Graham v. Boder, 5 Tex. 141; Mc- 
 Williams v. Bragg,.3 Wis. 424; Millison v. Hoch, 17 Ind. 227. 
 
 To warrant a verdict for exemplary damages it Is necessary to prove 
 either actual malice^ wanton negligence reckless conduct, or fraud. 
 Chicago, K. & W. B. Co. v. O'Connell, 46 Kan. 581; 26 Pac. Rep. 947; 
 Citizens' St. B. Co. v. Willoeby (Ind.), 33 N. B. Bep. 627; Patterson o. 
 South & TS. A. B. Co., 89 Ala. 318; 7 So. Rep. 437; Cady v. Case, 45 Kan. 
 733; Phila., etc. B. Co. ■». Hoeflich, 63 Md. 301; 50 Am. Bep. 223; Drohn 
 V. Brewer, 77 111. 280; \^aynor v. Nims, 37 Mich. 34; 26 Am. Rep. 493; 
 Fillebrown «. Hoar, 124 Mass. 580; Marin v. Satterfleld, 41 La. An. 742; 
 6 So. Rep. 551; Alabama G. S. E. Co. v. Arnold, 84 Ala. 159; 4 So. Rep. 
 359; Green v, Pennsylvania B. Co., 36 Fed. Rep. 66; McCullongh v. 
 Walton, 11 Ala. 492; Philadelphia, etc. R. Co. v. Quigley, 21 How. 202. 
 
 Exemplary damages may be awarded in an action for conversion of 
 personal property as well as in an action for the recovery of the property 
 itself. Arzagav. Villilha, 81 Cal. 191; 24 Pac. Rep. 656. See Morris v. 
 
 Shew, 29 Kan. 661; Shirley v. Waco Tap. R. Co. (Tex.) ; 10 S. W. 
 
 Rep. 543; Mowrey v. Wood, 12 Wis. 413. 
 
EXEMPLARY DAMAGES. 221 
 
 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 de- 
 famation should perhaps be added ; but there it is rather 
 that no definite principle of compensation can be laid 
 down than that damages can be given which are distinctly 
 not compensation. It is not found practicable to interfere 
 with juries either way (6), unless their verdict shows 
 manifest mistake* or improper motive. There are other 
 miscellaneous examples of an^estimate of damages coloured, 
 so to speak, by disapproval of the defendant's conduct (and 
 in the opinion of the Court legitimately so), though it be 
 not a case for vindictive or exemplary damages in the 
 proper sense. In an action for trespass to land or goods 
 substantial damages may be recovered though no loss or 
 diminution in value of property may have occurred (c). 
 In an action for negligently pulling down buildings to an 
 adjacent owner's .damage, evidence has been admitted that 
 the defendant wanted to disturb the plaintiff in his occu- 
 pation, 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). Sub- 
 stantial damages have been allowed for writing disparaging 
 words on a paper belonging to the plaintiff, although there 
 was no publication of the libel (e). 
 
 " It is universally felt by all persons who have had occa- 
 sion to consider the question of compensation, that there is 
 a difference between an injury which is the mere result of 
 
 (o) faffid^rev. Jfode(1769),3WUs. 18: (c) Per Denman C. J. In Ex. Oh., 
 
 " Actions of this sort are brought lor Rogers v. Spence, 13 M. & W. at p. 581, 15 
 
 example's sate." L. J- Ex. 49. 
 
 (6) See Forsdike v. Stone (1868), L. R. (d) Emblen v. Myers (1860), « H. & N. 
 
 3 C. P. 607, 37 L. J. C. P. 301, where a 5i, SOL. J. Ex. 71. 
 
 verdict for Is. was not disturbed, though (e) Wennhak v. Morgan (1888), 20 Q. B. 
 
 the Imputation was a gross one. J). 635, 57 L. J. Q. B. 241. 
 
222 REMEDIES FOR TORTS. 
 
 such negligence as amounts to little more than accident, 
 and an injury, wilful or negligent, which is accompanied 
 with expressions of insolence. I do not 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 injury and the circumstances with which it is accom- 
 panied "(/). 
 
 The case now cited was soon afterwards referred to by 
 Willes J., as an authority that a jury might give exemplary 
 damages, though the action was not in trespass, from the 
 character of the wrong and the way in which it was 
 done (fir). 
 
 Analogy of breacli of promise of marriage to torts 
 in this respect. The action for breach of promise of mar- 
 riage, being an action of contract, is not within the scope 
 of this work; but it has curious points of affinity with 
 actions of tort in its treatment and incidents; one of which 
 is that a very large discretion is given to the jury as to. 
 damages (A). 
 
 Mitigation of damages. As damages may be aggra- 
 vated by the defendant's ill-behaviour or motives, so they 
 
 (/) Pollock C. B. 6 H. & N. 58, 30 L. J. (A) See, e. g.. Berry v. Da Costa (1866), 
 
 Ex. 72. Cp. per Bowen L. J. in Whitham L. E. 1 C. P. 331, 35 L. J. O. P. 191 ; and 
 
 V. Kershaw (1886), 16 Q. B. Div. at p. 618. the last chapter of the present worfe, 
 
 (jr) Bell V. Midland R. Co. (1861), 10 C. ad fin. 
 B. N. S. 287, 307, 30 L. J. C. P. 273, 281. 
 
 Analogy of breach of promise of marriage to torts In this respect. 
 The action for breach of promise of marriage is an action ex, contractu. 
 The damages recoverable therefor are not limited to the rules governing 
 actions upon ordinary contracts but rest with the sound discretion of 
 the jury. Southard v. Rexford, 6 Cow. 254; Malone v. Ryan, 14 E. I. 
 614; Reid v. Clark, 47 Cal. 149; Daggett v. Wallace, 76 Tex. 352; 13 S. 
 "W. Rep. 49; Colli). Wallace, 34 N. J. L. 291; Shreckengast ». Ealey, 16 
 Neb. 510; Grant v. WlUey, 101 Mass. 356; Coolidge v. Neat, 129 Mass. 
 146; Collins v. Mack, 31 Ark. 684; Coryell v. Cobaugh, 1 N. J. I,. 77; 
 Wolters V. Schultz, 21 N. Y. S. Rep. 768; Chellls v. Chapman, 125N. , 
 Y. 214; 26 N. E. Rep. 308. 
 
DISTINCT CAUSES OF ACTION. 223 
 
 may be reduced by proof of provocation, or of bis having 
 acted in good faith: and many kinds of circumstances 
 which will not amount to justification or excuse are for this 
 purpose admissible and material. "In all cases where 
 motive may be ground of aggravation, evidence on this 
 score will also be admissible in reduction of damages " (i). 
 For the rest, this is an affair of common knowledge and 
 practice rather than of reported authority. 
 
 Concurrent but iseverable causes of action. " Damages 
 resulting from one and the same cause of action must be 
 assessed and recovered once for all ; " but where the same 
 facts give rise to two distinct causes of action, though be- 
 tween the same parties, action and judgment for one of 
 these causes will be no bar to a subsequent ^ction 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 tres- 
 pass to the person, and the same principle holds of injuries 
 caused not by voluntary trespass, but by negligence; there- 
 fore where the plaintiff, driving a cab, was run down by a 
 van negligently driven by the defendant's servant, and the 
 cab was damaged and the plaintiff suffered bodily harm, it 
 was held that after suing and recovering for the damage to 
 
 (») Mayne on Damages, 100 (3rd ed.). 
 
 Mitigation of damages. Supporting the text, vide Norfolk & W. R. 
 Co. V. Lipscomb (Va.), 17 S. E. Eep. 811; "Wannamaker v. Bowes, 36 
 Md. 42; Kolb v. O'Brien, 86 III. 210; Chicago, etc. R. Co. v. McKean, 
 40 111. 218; Goetz v, Ambs, 2# Mo. 28; Heil v. Glanding, 42 Pa. St. 
 493; Hamilton v. Third Ave. E. Co., 53 N. Y. 26; Snow v. Grace, 25 Ark. 
 670; Morse v. Duncan, 14 Fed. Rep. 396; Dow v. Julian, 32 Kan. 676; 
 Wilkinson v. Searcy, 76 Ala. 176; Ross v. Scott, 15 Lea, 479; Green- 
 field Bank v. Leavit, 17 Pick. 1 ; Chicago, etc. R. Co. v. Flasg, 43 111. 364; 
 Plummer v. Harbut, 5 la. 308; Eippey v. Miller, 11 Ired. 347; Varril v. 
 Heald, 2 Me. 91; Brooks v. Hoyt, 6 Pick. 468; Uahinv. Webster, 129 Ind. 
 ' 430; 28 N. E. Rep. 863; Pacific Ins. Co. v. Conard, Bald. 137; affirmed, 6 
 Pet. 262; Paine v. Farr, 118 Mass. 75. 
 
224 EEJIEDIES FOE TORTS. 
 
 the cab the plaintiff was free to bring a separate action for 
 the personal injury (A). Apart from questions of form, 
 the right to personal security certainly seems distinct in 
 kind from the right to safe enjoyment of one's goods, and 
 such was the view of the Soman lawyers (I). 
 
 Injunctions. Another remedy which is not, like that of 
 damages, universally applicable, but which is applied to 
 many kinds of wrongs where the remedy of damages would 
 
 (k) BrunsdenY. Humphrey (lSSi),liQ. (0 Liber homo sno nomine utilem 
 
 B. l)iv. 141, 53 L. J. Q. B. 176, by Brett M. Aquiliac habet actionem : directam enlm 
 R. and Bowen L. J., diss. Lord Coleridge non habet, quoniam dominns membro- 
 
 C. J. Cp. per Lord Bramwell, 11 App. Ca. rum snorura nemo videtnr : tJlpian, D. 9. 
 at p. 144. 2, ad 1. AgniL 13 pr. 
 
 Injunctions. Tbe granting of injunctions rests in the sound discre- 
 tion of the court of equity jurisdiction and should be exercised only in 
 a clear case of right to prevent irreparable mischief. Where the injury 
 threatened is such as would not be susceptible of compensation in dam- 
 ages It is deemed irreparable ; but each case must depend on its own 
 circumstances. There is no characteristic variance between the English 
 and American authorities upon this subject, but the mandatory injunc- 
 tion seems to have been granted more freely by the courts of England 
 than those of this country. See Rogers L. & M. Works a. Erie Ey. Co., 
 20 M. J. Eq. 387; Longwood Valley R. Co. v. Baker, 27 Id. 171; Corning 
 V. Troy, I. & N. Factory, 40 N. Y. 191 ; Auburn & C. P. R. Co. v. Doug- 
 lass, 12 Barb. 553; Appeal of Brown, 62_P.a. St. 17; Webb v. Portland 
 Mfg. Co., 3 Sumn. 189; Eeddall v. Bryan, U Md. 444; 74 Am. Dec. 550; 
 Nesbet v. Sawyer, 66 Ga. 256 ; Troy etc. R. Co. v. Boston etc. R. Co., 86 N. 
 Y. 107; Haskell v. Shurston, 80 Me. 129; IS At. Rep. 273; Putnam v. Val- 
 entine, 5 Ohio, 187; Wakeman v. New York etc. R. Co., 35 N. J. Eq. 496; 
 Trowbridge v. True, 52 Conn. 190; 52 Am. Rep. 579; Livingston ». Liv- 
 ingston, 6 Johns. Ch. 501; 10 Am. Dec. 353; Boston W. P. Co. v. Boston 
 etc. Co., 16 Pick. 525; Cox v. Douglass, 20 W. Va. 175; Indianapolis Nat. 
 Gas Co. V. Kibby (Ind.), 35 N. E. Rep. 392; Citizens Natural Gas Co. v. 
 Shenango Natural Gas Co., 138 Pa. St. 22; 20 At. Rep. 947; Shafer ». 
 StuUi 82 Neb. 94 ; 48 N. W. Rep. 882. 
 
 A few cases illustrating the circumstances upon which injunctions are 
 ordinarily granted are as follows : — 
 
 Copyrights. Matsell v. Flanagan, 2 Abb. Pr. (N. S.) 459; Greene v. 
 Bishop, 1 ClifE. 186; Folsom v. Marsh, 2 Story, 100; Keener. KimbaU, 
 16 Gray, 545; Denis v. Leclerc, 1 Mart. (La.) 297; 5 Am. Dec. 712; Fishel 
 V. Lueckel, 53 Fed. Rep. 499. 
 
 Libel and slander. See Injunctions, post, p. 252. 
 
INJUNCTIONS. 225 
 
 be inadequate or practically worthless, is the granting of 
 an injunction to restrain the commission of wrongful acts 
 threatened, or the continuance of a wrongful course of 
 
 Lights. See Obstruction of Lights, post, p. 365. 
 
 Nuisances. See Injunctions, post, p. 373. 
 
 Patents. Brboks v. Norcross; 2 Fish. Pat. Cas. 251 ; Farbis.h v. Brad- 
 ford, 1 Id. 316; Potter v. Muller, 2 Id. 465; Buchanan v. Howland, 6 
 Blatchf. 151; Goodyear' ■». Day, 2 Wall. Jr. 288; Orr v. Llttlefleld, 1 
 Woodb. & M. 13; New York B. & P. Co. v. Gutta Percha & E. Mfg. Co., 
 56 Fed. Rep. 264; Sawyer Spindle Co. v. Turner, 55 Fed. Rep. 979; Stan- 
 ton Mfg. Co. V. McFafland (N. J. Ch.), 2T At. Rep. 828; Campbell etc. 
 Co. V. Manhattan etc. Ry. Co., 49 Fed. Rep. 930. 
 
 2rMe-marks. California Fig Syrup Co. v. Improved Fig Syrup Co., 51 
 Fed. Rep. 296; Electro-Silicon Co. v. Levy, 59 How. Pr. 469; Avery o. 
 Melkle, 81 Ky. 73; Anheuser-Busch Brewing Assn. v. Clarke, 26 Fed. Rep. 
 410; Gilman v. HunneweU, 122 Mass. 139; Pierce v. Guittard, 68 Cal. 68; 
 Alexandre ». Morse, 14 R. I. 153; 51 Arfi. Rep. 369; Morgan v. 
 Schwachofer, 55 How- Pr. 37; Godillot v. Harris, 81 N. Y. 263; Estes v. 
 Worthington, 31 Fed. Rep. 134; Coffeen v. Brunton, 4 McLean, 5l'6; 
 City of Carlsbad v. Tibbetts, 51 Fed. 852; Cuervo v. Jacob Henkel Co., 
 50 Fed. Rep. 471 ; G. G. White Co. v. Miller, 50 Fed. Rep. 277. 
 
 Trespass. Cattle v. Harold, 72 Ga. 830; Stetson v. Stevens, 64 Vt. 
 649; 25 At. Rep. 429; Mooney ». Coolidge, 30 Ark. 640; Schoonover v. 
 Bright, 24 W. Va. 698; Carney v. Hadley (Fla.), 14 So. Rep. 4; Mussel- 
 man V. Marquis, 1 Bush, 463; Thorn v. Sweeney, 12 Nev. 256; New York 
 etc. R. Co. V. Schuyler, 17 N. Y. 592; 34 N. Y. 30; Althen v. Kelley, 32 
 Minn. 280; Nichols v. Jones, 19 Fed. Rep. 857; Switzer v. McCulloch, 
 76 Va. 777; West etc. Co. v. Regmert, 45 N. Y. 703; Lockwood v. 
 Lunsford, 56 Mo. 68; Smith v. Rock, 59 Vt. 232; Moore v. Massinl, 32 
 Cal. 590; Sisson v. Johnson (Cal.), 34 Pac. Rep. 617; Richards v. 
 Dower, 64 Cal. 62 ; 28 Pac. Rep. 113. 
 
 Waste. Sapp v. Roberts, 18 Neb. 299; Lanier v. Allison,. 31 Fed. Rep. 
 299; Natoma etc. Co. v. Clarkin, 14 Cal. 544; Thurston o. Mustin, 3 Cranch 
 C. Ct. 335; Hawley v. Clowes, 2 Johns. Ch. 122; Marshall v. TurnbuU, 
 32 Fed. Rep. 124; Kankakee v. Kankakee etc. R. Co., 115 111. 88 ; Silva v. 
 Garcia, 65 Cal. 591; Rossman v. Adams, 91 Mich. 69; Basore v. Heukel, 
 82 Va. 474. 
 
 Water rights. Daniel v. Town of Princeton (Ky.), 22 S. W. Rep. 324; 
 Graham v. Dahlonega G. M. Co., 71 Ga. 296; Pettigrew v. EvansviUe, 26 
 •Wis. 223; Wilcox v. Wheeler, 47 N. H. 488; Arthur v. Case, 1 Paige, 447; 
 Patten v. Mardew, 14 Wis. 473; Hulrae v. Shreve, 3 Green Ch. 116; Fuller 
 V. Daniels, 63 N. H. 395; Cole S. M. Co. v. Virginia etc. Co., 1 Sawyer, 
 470 ; Swett v. Cutts, 50 N. H. 439 ; 9 Am. Rep. 276 ; Ferris v. Welborn, 64 
 Miss, 29 ; 8 So. Rep. 165 ; Conkling v. Pacific Imp. Co., 87 Cal. 296 ; 25 Pac. 
 Rep. 399. 
 
 15 
 
226' REMEDIES FOR TORTS. 
 
 action already begun. There is now no positive limit to 
 the jurisdiction of the Court to issue injunctions, beyond 
 the Court's own view (a judicial view, that is) of what is 
 just and convenient (wi). Practically, however, the lines of 
 the old equity jurisdiction have thus far been in the main 
 I preserved. The kinds of tort against which this 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 tres- 
 passes, and infringements of copyright and trade-marks. 
 In one direction the High Court has, since the Judicature 
 Acts, distinctly accepted and exercised an increased juris- 
 diction. It will now restrain, whether by final (n) or in- 
 terlocutory (o) injunction, the publication of a libel or, in 
 a clear case, the oral uttering of slander (p) calculated to 
 injure the plaintiff in his business. In interlocutory pro- 
 ceedings, however, this jurisdiction is exercised with caution 
 (o), and only in a very clear case (y), and not where the 
 libel, however unjustifiable, does not threaten immediate 
 injury to person or property (r). 
 
 On what principle granted. The special rules and prin- 
 ciples by which the court is guided in administering this 
 remedy can be profitably discussed only in connexion with 
 the particular causes of action upon which it is sought. 
 All of them, however, are developments of the one gen- 
 eral principle that an injunction is granted only w.here 
 damages would not be an adequate remedy, and an interim 
 injunction only where delay would make it impossible or 
 
 (m) Judicature Act, 1873, s. 28, sub-s. Mining Co. v. Seall (1882), 20 Oh. Dlv. 501, 
 
 8. Per JesBell M. E., Beddow v. Beddow 51 L. J. Oh. 874; Collard v. Marshall, '92, 
 
 (1878), 9 Oh. D. 89, 93, 47 L. J. Ch. 588; ICh. 571. 
 
 <}uartz Hill etc. Co. v. BedU (1882) , 20 Ch. (p) Hermann Loog v. Beam (1884) ,26 Ch. 
 
 Div. at p. 507. DIv. 306, 53 L. J. Oh. 1128. 
 
 (7i) Thorley's Cattle Food Co. v. Mas- (g) Bonnard v. Perrynum, '91, 2 Ch. 
 
 sam (1880), 14 Oh. Div. 763; Thomas -v. 269, 60 L. J. Ch. 617, C. A. 
 Williams, ib. 864. (r) Salomom v. Kniglit, '91, 2 Ch. 294, 
 
 (o) Quartz Hill Consolidated Gold 60 L. J. Oh. 743, 0. A. 
 
INJUNCTIONS. 227 
 
 highly difficult to do complete justice at a later stage (s). 
 In practice very many causes were in the Court of Chan- 
 cery, and still are, really disposed of on an application for 
 an injunction which is in form interlocutory : the proceed- 
 ings being treated as final by consent, when it appears that 
 the decision of the interlocutory question goes to the merits 
 of the whole case. 
 
 Former concurrent jurisdiction of common law and 
 equity to give compensation for fraud. In certain cases 
 of fraud (that is, willfully or recklessly false representation 
 of fact ) the Court of Chancery had before the Judicature 
 Acts concurrent jurisdiction with the courts of common 
 law, and would award pecuniary compensation, not in the 
 name of damages, indeed, but by way of restitution or 
 "making the representation good" (t). In substance, 
 however, the relief 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) (s) the plaint- 
 iff was entitled not to be restored to his former position or 
 have his just expectation fulfilled, but only to recover the 
 
 (s) In Mogul Steamship Co. v. M'Greg- is) Jones v. Gooday (1841), 8 M. & W. 
 or, Gow tf Co. (1885), 15 Q. B. D. 476,5* 146,10 L. J. Ex. 275; Wigsell v. School 
 L. J. Q. B. 540, the Court refused to grant for Indigent Blind (1882), 8 Q. B. D. 3S7, 
 un interlocutory injunction to restrain 51 L. J. Q. B. 330; Whitham v. Kershaw 
 a course of conduct alleged to amount (1885-6), 16 Q. B. Div. 613. In an action 
 to a conspiracy of rival ship owners to for inducing the plaintiff by false state- 
 drive tbe plaintiffs' ships out of the ments to take shares in a company. It is 
 China trade. The decision of the case said that tbe measure of damages is the 
 on the merits is dealt with elsewhere. difference between the sum paid for 
 
 (<) ^Mrro!ccsviocA (1805), 10 Ves. 470; the shares and their real value (the 
 
 Slim V. Craueher (1860), 1 D. JF. J, 518, market value may, of course, have been 
 
 29 1,. J. Oh. 273 (these cases are now fictitious) at the date of allotment : Pee/j 
 
 cited only as historical illustration); v. ZJej-rj/ (1887),37 Ch. Div. 591,57 L. J. 
 
 Peek V. Gumey (1871-3), L. R. 13 Eq. 79,6 Ch. 347. 
 II. L. 377, 43 L. J. Ch. 19. See under the 
 head of Deceit, Ch. VIII. below. 
 
228 REMEDIES FOR TOKTS. 
 
 amoant by which he is actually the worse for the defend- 
 ant's wrong-doing. Any contention of that kind would no 
 doubt be effectually excluded by the authorities in equity ; 
 but even without them it would scarcely be a hopeful one. 
 
 Special statutory remedies, when exclusive. Duties of 
 a public nature are constantly defined or created by stat- 
 ute, and generally, though not invariably, 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 damage by the breach or 
 non-performance of such duties. Here it is material 
 (though not necessarily decisive) to observe to whom and 
 in what form the specific statutory remedy is given. If 
 the Legislature, at the same time that it creates a new 
 duty, points out a special course of private remedy for the 
 person aggrieved (for example, an action for penalties to 
 be recovered, wholly or in part, for the use of such person), 
 then it is generally presumed that the remedy so provided 
 was intended to be, and is, the only remedy. The pro- 
 vision of a public remedy without any special means of 
 private compentation is in itself consistent with a person 
 specially aggrieved having an independent right of action 
 
 Special statutory remedies, when exclusive. In the case of Cole 
 V. City of Muscatine (14 la. 296), the court, agreeing -with the doctrine 
 of the text, said: " that where a statute gives a right and creates a 
 liability which did not exist at common law, and the statute at the same 
 time provides a specific mode in wliich such right shall be asserted and 
 liability ascertained, that mode and that alone must be observed." This 
 is a substantial statement of the general rule. See Moore v. White, i5 
 Mo. 206; Commissioners v. Bank, 32 Ohio St. 196; Andover v. Gould, 6 
 Mass. 1 ; Victory v. Fitzpatrick, 8 Ind. 281 ; Bissel v. Larned, 16 Mass. 
 65; Kroop v. Porman.Sl Mich. 144; Bennett v. Drain Commissioner, 56 
 Mich. 634; Johnston v. Louisville, H Bush, 627; Beeler v. Turnpike Co., 
 14 Pa. St. 162; Grant v. Slater, etc. Co., 14 R. I. 380; Almy o. Harris, 6 
 Johns. 175; Halloran v. Bray, 29 Ga. 422; Thurston v. Prentiss, 1 Mich. 
 193; Pittsburg etc. R. Co. v. Hine, 259 Ohio St. 629 ; Jackson v. St. Louis, 
 etc. R. Co., 87 Mo. 422; 56 Am. Rep. 460. 
 
STATUTORY DUTIES. 229 
 
 for injury caused by a breach of the statutory duty (f). 
 And it has beea 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 (u). But 
 the Court of Appeal has repudiated any such fixed rule, 
 and has laid down that the possibility or otherwise of 
 a private right of action for the breach of a public statu- 
 tory 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 company's special Act, to maintain a proper pressure 
 in its pipes, under certain public penalties. It was Jield 
 that an inhabitant of the district served by the company 
 under this Act had no cause of action against the company 
 for damage done to his property by fire by reason of the 
 pipes being insuflSciently charged. The Court thought it 
 unreasonable to suppose that Parliament intended 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). 
 
 No private redress unless tbe harm snfCered Is within 
 the mischief aimed at by the statute. Also the harm in 
 respect of which an action is brought for the breach of a 
 statutory duty must be of the kind which the statute was 
 intended to prevent. If cattle being carried on a ship are 
 washed overboard for want of appliances prescribed by an 
 Act of Parliament for purely sanitary purposes, the ship- 
 
 (0 Eosa V. Bagge-Price (1376), 1 Ex. D. 17 L. J. Q. B. 163, where It was held that 
 
 269, 45 li. J. Ex. 777: bat qa. whether this tbe local Act regnlatlng,ander penalties' 
 
 case can now be relied on; itwas de- thepllchardflsheryof St. Ires, Cornwall, 
 
 cided partly on the authority of AtMnson did not create private rights enforceable 
 
 V. Newcastle Waterworks Co. (1871), L. R. by action ; Vestry of St. Pancras \r. Bat- 
 
 6 Ex. 404, afterwards reversed In the «er6«rff (1857),2a. B. N. S.477,26L. J. 0. 
 
 Court of Appeal (see below). P. 243, where a statutory provision for 
 
 (jt) Couch V. Steel (1854), 3 £. & B. 402, recovery by summary proceedings was 
 
 23 L. J. Q. B. 121. held to exclude any right of action 
 
 (») Atkinson v. Newcastle Waterworks (here, however, no private damage was 
 
 Co. (1877), 2 Ex. Dlv. 441, 46 L. J. Ex. 775. in question) ; and Vallance v. FaUe(lWi), 
 
 Cp. Steeais v. Jeacocke (1847),11 Q- B. 731. 13 Q. B. D. 109, 5« L. J. Q. B. 46». 
 
230 REMEDIES FOR TORTS. 
 
 owner is not liable to the owner of the cattle by reason of 
 the breach of the statute (x) : 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 
 undertaken (y), and in an action not founded on a statu- 
 tory duty the disregard of such a duty, if likely to cause 
 harm of the kind that has been suflSered, may be a material 
 s/^Ct {z). 
 
 /y\\roiiit wrongdoers may be sned jointly or severally. 
 
 Where more than one person is concerned in the commis- 
 
 (a) Gorris v. Scott (1874), L. E. 9 Ex. (3) Blamires v. Lane, and Yorkshire 
 
 125, 43 L. J. Ex. 92. R. Co. (1873), Ex. Oh, L. E. 8 Ex. 283, 42 L. 
 
 (y) See per Pollock B. at p. 131. J. Ex. 182. 
 
 Joint wrong-doers. Agreeing with the text it is an established rule 
 in America, that where torts are committed by several persons the action 
 may be ' brought against all who participate or against any number of 
 ■ them. Thus, in the case of Ayer v. Ashmead (^31 Conn. 458 ; 83 Am. Dec. 
 154), the court said : " It is true, undoubtedly, that for a joint trespass 
 they may all be sued jointly or separate suits may be brought against 
 each, because trespasses committed by several, while they are in fact the 
 joint acts of all, are also the separate acts of each individual, each being 
 liable in law for whatever was done by all or any of them; and if suits 
 are separately brought against each they may all be pursued to final 
 judgment, and the plaintiff may elect which of the separate he will en- 
 force and collect. But having received damages recovered against any 
 one, and his costs recovered against all, he must be content with that, 
 as otherwise he would receive more than one satisfaction for his in- 
 jury." See Wisconsin Cent. R. Co. v. Eoss, 142 111. 9; 31 N. E. Rep. 
 412; Oliver v. Perkins, 92 Mich. 304; 52 N. W. Rep. 609; City of Chicago 
 V. Babcock, 143 111. 358; 32 N. E. Rep. 271 ; Bonnell v. Dunn, 28 N. J. L. 
 153; Williams v. Sheldon, 10 Wend. 654; Bell v. Loomis, 29 N. Y. 412 
 Wheeler ». Worcester, 10 Allen, 591 ; Moore v. Appleton, 26 Ala. 633 
 Page V. Freeman, 19 Mo. 421; Klauder v. McGrath, 35 Pa. St. 128 
 Murphy v. Wilson, 44 Mo. 313; Cook v. Hopper, 23 Mich. 511; Cole 
 grove V. New York etc.R. Co., 20 N. Y. 492;' Stewart i). Wells, 6 Barb. 81 
 Knickerbocker v. Colver, 8 Cow. Ill; Carrier v. Brown, 63 Me. 323 
 Bajdtn v. Fitch, 101 Mass. 154; McManus ii. Lee, 43 Mo. 206; Little 
 Schuylkill etc. Co. v. Richards, 57 Pa. St. 142; Westbrook v. Mize, 35 
 Kan. 299; Gould v. Gould, 4 N. H. 174; Mitchell v. Allen, 25 Hun, 543; 
 Sharpe v. Williams, 41 Kan. 57; Aldrich v. Parnell, 147 Mass. 409; Irwin 
 V. Scribner, 15 La. An. 683; Sheldon v. Kibbe, 3 Conn. 214; Printup v. 
 Patton (Ga.), 18 S. E. Rep. 311. 
 
CONTRIBUTION BETWEEN WRONG-DOEES. 231 
 
 sion of a wrong, the person wronged has his remedy 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) (a), whether they acted, as between 
 themselves, as equals, or one of them as agent or servant 
 of another. There are no degrees of responsibility, noth- 
 ing answering to the distinction in criminal law between 
 principals and accessories. But when the plaintiff in such 
 a case has made his choice, he is concluded by it. 
 
 But judgment against any is bar to further action. 
 
 After recovering judgment 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 (6 j. The reason of the rule is stated to 
 be that otherwise a vexatious multiplicity of -action would 
 be encouraged. ._ - - 
 
 Rules as to contribution and indemnfl^. As ^a^een 
 joint wrong-doers themselves, one who has b^eil 'sued alone 
 and compelled to pay the whole damages has no right to 
 
 (o) Page 67. satisfaction was a bar. And in the 
 
 (6) BringTnead v. ffarrison (1872), Ex. United States it seems to be generally 
 
 Ch. L. R. 7 C. P. 547, 41 L. J. C. P. 190, held that it is not: Oooley on Torts, 138, 
 
 finally settled the point. It was formerly and see L. R. 7C. P. 549. . 
 donbtfol whether judgment withont 
 
 Contribution between joint wrong-doers. No right of contribution 
 exists between joint wrong-doers where there has been an intentional 
 violation of law or where the wrong-doer is presumed to have known 
 that the act was unlawful. Boyer v. Bolender, 129 Pa. St. 324; 18 At. 
 Eep. 127; 24 W. N. C. 300; Johnson v. Torpy^ 35 Neb. 604; 53 N. W. 
 Rep. 575; Bend v. Chicago, etc. By. Co., 8 Bradwell, 617; Atkins v. 
 Johnson, 43 Vt. 78; Barley v. Bussing, 28 Conn. 45.5; Jacobs v. Pollard, 
 10 Cash. 287; 57 Am. Dec. 106; Moore u. Appleton, 26 Ala.' 633; Miller 
 V. Fenton, 11 Paige, 18; Campbell i?. Phelpa, 1 Pick. 65; Acheson«. Milleri 
 2 Ohio St. 203; Dent ». King, 1 Ga. 200; Andrews v. Murray, 33 Barb. 
 354; Sherner v. Spear, 92 N. C. 148; Cumpston v. Lambert, 18 Ohio, 81; 
 
232 REMEDIES FOR TORTS. 
 
 indemnity or contribution from the other (c), if the nature 
 of the case is such that he " must be presumed to have 
 known that he was doing an unlawful act" (d). Other- 
 wise, "where the matter is indifferent in itself," and the 
 wrongful act is not clearly illegal (e), 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 employs 
 another to do an act which the employer appears to have a 
 right to authorize him to do- undertakes to indemnify him 
 for all such acts as would be lawful if the employer had the 
 authority he pretends to have." Therefore an auctioneer 
 who in good faith sells goods in the way of his business on 
 behalf of a person who turns out to have no right to dispose 
 of them is entitled to be indemnified by that person against 
 the resulting liability to the true owner (f). And persons 
 intrusted with goods as wharfingers or the like who stop 
 delivery in pursuance of their principal's instructions may 
 claim indemnity if the stoppage turns out to be wrongful, 
 but was not obviously so at the time (g). In short, the 
 proposition that there is no contribution between wrong- 
 doers must be understood to affect only those who are 
 
 ■ (c) Merryweather v. Nixan (1799), 8 T. 66, 72. The ground of the action for In- 
 R. 18(i, where the doctrine Is too widely demuity may be either deceit or war- 
 laid down, ranty: seeatp. 73. 
 
 Id) Adamson v. Jarvis, IBing. at p. 73. (g) Betts v. Oibbim (1831), 2 A. & E. 57. 
 
 (e) £eUa\. Gibbins, 2 A. & E. 57. See too Collins v. Evans (1841) (Ex. Ch.), 
 
 (/) Adamson v. Jarvis (1827), 1 Bing. 6 Q. B. at p. 830, 13 L. J. Q. B. 180. 
 
 51 Am. Dec. 442; Selz v. Unna, 6 Wall. 327; Spalding v. Oakes, 343. 
 But where joint tort-feasors honestly do what is apparently lawful, and 
 the wrong inflicted upon another arises out of their conduct by con- 
 struction or inference of law, and is not the foreseen result of the 
 wrongful act, the law will allow contribution between them. Armstrong 
 Co. V. Clarion Co., 66 Pa. St. 218; Nichols v. Nowling, 82 Ind. 488; 
 ChurchiU v. Holt, 131 Mass. 67; Farwell v. Becker, 129 111. 261; 21 N.E. 
 Eep. 792; Vandiver ». PoUak (Ala.), 12 So. Eep, 473; Lowell v. Boston 
 etc. E. Co., 23 Pick. 24; 34 Am. Dec. 33; Gray v. Boston Gas Light Co., 
 114 Mass. 149 Percy d. Clavy, 32 Md. 245; Horback v. Elder, 18 Pa. St. 
 33; Westfleld u. Mayo, 122 Mass. 100. 
 
TRESPASS AND FKLONY. 233 
 
 wrong-doers in the common sense of the word as well as in 
 law. The wrong must be so manifest that the person doing 
 it could not at the time reasonably suppose that he was 
 acting under lawful authority. Or, to put it summarily, a 
 wrong-doer by misadventure is entitled to indemnity from 
 any person under whose apparent authority he acted in 
 good faith ; a wilful or negligent (i^) wrong-doer has no 
 claim to 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 undertake in concert to 
 abate an obstruction to a supposed highway, having a 
 reasonable claim of right and acting in good faith for the 
 purpose of trying the right, and it turns out that their 
 claim cannot be maintained, it seems contrary to principle 
 that one of them should be compellable to pay the whole 
 damages and costs without any recourse over to the others. 
 I cannot lind, 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 
 subscription fund or guaranty. 
 
 Supposed rule of trespass being " merged in felony." 
 
 It has been currently said, sometimes laid down, and 
 once or twice acted on as established law, that when the 
 facts aflEording a cause of action in tort are such as to 
 
 (ft) I am not sure that authority know to be beyond the lawful power of 
 
 <K)TersthiB. But I do not think an agent the principal. See Indian Contract 
 
 could claim indemnity for nets which Act, s. 223. 
 a reasonable man in his place would 
 
 Supposed rule of trespass being ". merged In felony." In England, 
 where the party Injured is relied upon to take the place ol a public pros- 
 ecutor and where formerly the estate of a felon was forfeited to the 
 crown, redress for a private grievance resulting from a criminal act is 
 postponed until after criminal prosecution. " But in this country this 
 doctrine of the suspension of the civil remedy in cases of felony has 
 been repudiated by the great weight of American authorities. Under the 
 
234 REMEDIES FOR TORTS. 
 
 amount to a felony, there is no civil remedy against the 
 felon («') for the wrong, at all events before the crime has 
 been prosecuted to conviction. And as, before 1870 (_/ ), a 
 convicted felon's property was forfeited, there would at 
 common law be no effectual remedy afterwards. So that 
 the compendious form in which the rule was often stated, 
 that " the trespass was merged in the felony," was sub- 
 
 (i) It is settled that there is no role to N. C. 198, 217 : White t. Spettigue (184B), 13 
 
 prevent the suing ot a person who was M. & W. 603, IJ. L. J. Ex. 99. In these 
 
 not party or privy to the felony. Stolen cases indeed the cause ot action is not 
 
 goods, or their value, e. g. can be re- the offence itself, bnt something else 
 
 covered from an innocent possessor which Is wrongful becanse an offence 
 
 who has not bought in market overt, has been committed, 
 
 whether the thief has been prosecuted (J) 33 & 34 Vict. c. 23. 
 or not: Marsh v. Keating (1834), 1 Bing. 
 
 system of laws prevailing In the United States the reasons for this rule 
 are entirely absent. Here we have a public officer whose duty it is to 
 prosecute all offenders against the State without reliance upon the 
 injured individual; and here we have no forfeiture of the felon's goods. 
 The civil and the criminal prosecution may, therefore, go on pari passu; 
 or the one may precede or succeed the other ; or If the criminal prosecu- 
 tion is never commenced at all, the failure to see]£ public justice is no 
 bar to the private remedy.- Neither Is an acquittal or conviction upon 
 the criminal charge any bar to the civil action." Williams v. Dickin- 
 son, 28 Fla. 90; 9 So. Eep. 847; citing Pettingill v. Rideout, 6 N. H. 454; 
 Blassingame e. Glaves, 6 B. Mon. 38; Boston & W. B. Co. v. Dana, 1 
 Gray, 83; Howkw. Minnick, 19 Ohio St. 462; Newell v. Cowan, 30 Miss. 
 492; See Austin?;. Carswell, 67 Hun, 579; 22 N. Y. S. Rep. 478; Hel- 
 ler V. City of Alvarado, 1 Tex. Civ. App. 409; 20 S. W. Eep. 1003. 
 
 The American courts are not in harmony upon the question whether 
 punitive damages should be allowed where the tort is punishable as a 
 crime. 
 
 The Supreme Court of Colorado, in the case of Hewlett v. Tattle 
 (24 Pac. Rep. 921; following Murphy v. Hobbs, 7 Colo. 541; 5 Pac. Rep. 
 119) , said : " Perhaps the most Impressive objection to allowing damages 
 as a punishment in cases like the one at bar, Is that which relates to 
 dual prosecutions for a single tort. Our State constitution declares 
 that no one shall be twice put in jeopardy for the same offence. * * * 
 Yet, un(3er the rule allowing exemplary damages, not only may two pros- 
 ecutions, but also two convictions and punishments, be had. * * * 
 A second weighty objection to the rule under discussion relates to the 
 procedure. It Is doubtful if another instance can be found within the 
 whole range of English and American jurisprudence where the distinc- 
 tions between civil and criminal procedure are so completely ignored. 
 
TRESPASS AND FELONY. 235 
 
 stantially if not technically correct. But so much doubt 
 has been thrown upon the supposed rule in several recent 
 cases, that it seems, if not altogether exploded, to be only 
 awaiting a decisive abrogation. The result of the cases in 
 question is that, although it is difficult to deny that some 
 such rule exists, the precise extent of the rule, and the 
 reasons of policy on which it is founded, are uncertain, and 
 it is not known what is the proper mode of applying it. 
 As to the rule, the best supported version of it appears to 
 be to this effiect: Where the same facts amount to a felony 
 and are such as in themselves would constitute a civirwrons, 
 a cause of action for the civil wrong does arise. But the 
 remedy is not available for a person who might have pro- 
 secuted the wrong-doer for the felony, and has failed to do 
 so. The plaintiff ought to show that the felon has actually 
 been prosecuted to conviction ( by whom it does not matter, 
 nor whether it was for the same specific offence), or that 
 ptosecution is impossible (as by the death of the felon or 
 his immediate escape beyond the jurisdiction), or that he 
 
 Plaintiff sues for damages arising from the injary done to himself, his 
 complaint or declaration is framed with a view to compensation for a 
 purely private wrong." See Meidel v. Anthis, 76 111. 241; Storall »; 
 Smith, 4 B. Mon, 378; Lncas v. Flinn, 35 la. 9; Stowe v. Heywood, 7 
 Allen, 118. 
 
 But the weight of authority is otherwise and, as said by the court in 
 Hendrickscn v. Kingsbury (21 la. SSI), is " that the damages allowed In 
 a civil case, by way of punishment, have no necessary relation to the 
 penalty incurred for the wrong done to the public; bat are called puni- 
 tive damages by way of distinction from pecuniary damages, and to 
 characterize them as a punishment for the wrong done to the individual. 
 In this view, the awarding of punitive damages can in no sense be said 
 to be in conflict with the cpnstitational or common law inhibition 
 against inflicting two punishments for the same offense." See Brown ». 
 Swineford, 44 Wis. 282; Cook v. Ellis, 6 Hill, 466; Edwards v. Leavitt, 
 46 Vt. 126; Hoadley v. Watson, 45 Vt. 289; Rhodes v. Rogers, 151 Pa. 
 St. 634; 24 At. Rep. 1044; Roach v. Galdbeck, 64 "Vt. 593; 24 At. Rep. 983; 
 Kimball v. Holmes, 60 N. H. 163; Chicago v. Msrtin, 49 111. 241 ; Corwin 
 t;. Walter, 18 Mo. 71 ; Wilson v. Vaughn, 23 Fed. R«p. 229 ; Phillips 
 V. Kelly, 29 Ala. 628 ; Boetcher •». Staples, 27 Minn. 308 ; 38 Am. Rep. 
 295. 
 
236 REMEDIES FOE TORTS. 
 
 has endeavoured to bring the offender to justice, and has 
 failed without any fault of his own (k). 
 
 No known means of enforcing the rule if indeed it 
 exists. It is admitted that when any of these conditions is 
 satisfied there is both a cause of action and a presently 
 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 " (0- Its non-performance is not a defence which 
 can be set up by pleading (wj), nor is a statement of claim 
 bad for showing on the face of it that the 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 otherwise, exercise its summary jurisdic- 
 tion to stay proceedings 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 bankruptcy (q), nor, it is conceived, to executors 
 in the cases where executors can sue. On the whole there 
 is apparent in quarters of high authority a strong though 
 not unanimous disposition to discredit the rule as a mere 
 
 (S) See the judgment of Baggallay L. 146, 32 L. J. Ex. 285, a very Indecisive 
 
 J. In JSis parte Ball (IS79), 10 Cta. Dlv. at case, bnt the nearest approach to an 
 
 p. 673. ForthedifflcaltiesseeperBiam- authority lor the enforcement of the 
 
 well L. J., i&. at p. 671. supposed rule in a court of common law. 
 
 (0 Lush J., Wells V. Abraltams (1872), (p) Blackburn J., L. E. 7 Q. B. at p. 
 
 I/. R. 7 Q. B. at p. 668. 659. In a late Irish case, S. v. S. (1882), 
 
 ^(i») Blackburn J. Md. 16 Cox, 666, it was said that, In a proper 
 
 (n) Boope v. D'Avigdor (1883), 10 Q. B. case, the Court might stay the action of 
 
 D. 412, cp. MidlaTid Insurance Co. v. its own motion; and one member 
 
 SmUh (1881), 6 Q. B. D. 561, 50 L. J. Q. B. thought the case before them a proper 
 
 329. one, but the majority did not. 
 
 (0) wais V. Abrahams (1872),L. B. 7 Q. (2) Ex parte Ball (1879), 10 Ch. D. 667, 
 
 B. 654, 41 L. J. Q. B. 306, dissenting from 48 L, J. Bk. 67. 
 Wellock V. Cmstaniine (1863), 2 B. & 0. 
 
LOCAL EXTENT OF JURISDICTION. 237 
 
 cantilena of text-writers founded on ambigaoua or misap- 
 prehended cases, or on dicta which themselves were open 
 to the same objections (r). At the same time it is certain 
 that the judges consulted by the House of Lords in Marsh 
 V. Keating (s) thought such a rule existed, though it was 
 not applicable to the case in hand ; and that in Ux parte 
 Elliott (^) it was effectually applied to exclude a proof in 
 bankruptcy. 
 
 liocality of wrongful act as affecting remedy in English 
 court. Lastly we have to see under what conditions there 
 may be a remedy in an English court for an act in the 
 nature of a tort committed in a place outside the territorial 
 jurisdiction of the court. It is needless to state formally 
 that no action can be maintained in respect of an act which 
 is justified or excused according to both English and local 
 law. Besides this obvious case, the following states of 
 things are possible. 
 
 Acts not wrongful by English law, 1 . The act may be 
 such that, although it may be wrongful by the local law, it 
 would not be a wrong if done in England. In this case no 
 action lies in an English court. The court will not carry 
 respect for a foreign municipal law so far as to " give a 
 remedy in the shape of damages in respect of an act which, 
 according to its own principles, imposes no liability on the 
 person from whom the damages are claimed" (m). 
 
 (r) See the historical discnsaion in felon, rather than that of any other per- 
 
 thejadgment of Blackburn J. in Wellsy. eon; on the contrary, it is a Chrietrian 
 
 ^i>roftam», L. E. 7 Q. B. 560 m??. And see dnty to forgive one's enemies; and 1 
 
 per Manle J. in Ward v. Lloyd (1843), 7 think he does a very hnmane and ohar- 
 
 Scott N. K. 499, 507, a case of alleged Itable and Christian-like thing in ab- 
 
 compoundlng of felony: "Itwouldbe staining from prosecuting." 
 a strong thing to say that every man is («) 1 Blng. N. C. 198, 217 (1834) . 
 
 bound to prosecute all the felonies that' {<) 3 Mont. & A. 110 ( 1837 ). 
 come to his knowledge, and I do not («) TfteflaSez^ (1S68), L. E. 2 P. C.I93, 
 
 know why it is the duty of the party who 204 ST L. J. Adm. S3i The M. Moxham 
 
 snffeiB by the felony to prosecute the (1876), 1 P. Dlv. 107. 
 
238 EEMKDIES FOE TORTS. 
 
 Acts justified by local law. 2. The act, though in itself 
 it would be a trespass by the law of England, may be jus- 
 tified or excused by the local law. Here also there is no 
 remedy in an English court (x). And it makes no differ- 
 ence whether the act was from the first justifiable by the 
 local law, or, not being at the time justifiable, was after- 
 wards 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 tres- 
 passes complained of, an Act of indemnity subsequently 
 passed by the colonial Legislature was held eflfectjUal to pre- 
 vent the defendant from being liable in an action for assault 
 and false imprisonment brought in England. But nothing 
 less than the justification by the local law will do. Con- 
 ditions 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 the local law there was no remedy at all 
 for a manifest wrong, such as assault and battery committed 
 without any special justification or excuse (a). 
 
 Act wrongful by both laws. 3. The act may be wrong- 
 ful by both the law of England and the law of the 
 place where it was done. In such a case an action lies 
 in England, without regard to the nationality of the par- 
 ties ( 6 ) , provided the cause of action is not of a purely 
 
 {x) Slad's Case, Blad T. BamJieZd («) Scott v. Seymour (1862), Ex. Ch. 1 
 
 (1673-4), in P. C. and Ch., 3 Swanst. 603-4 H. & C. 219, 32 L. J. Ex. 61. 
 
 from Lord Nottingham's MSS. ; The M. (a) lb. per Wightman and Willes JJ. 
 
 Moxham, 1 P. Div. 107. (6) Per Our., The HaOey, L. E. 2 P. O- 
 
 iy) Ex. Ch. L. B. 6 Q. B. 1, 40 L. J. Q. at p. 202. 
 B. 28 (1870). 
 
 Acts juatifled by local law. Agreeing with the text, iiide American U 
 T. Co. V. Middleton, 80 N. Y. 408 ; LiTingston v. Jefferson, 1 Brockeu, 
 203; Niles v. How, 57 Vt. 388; Chapman v. Morgan, 2 Greene (la), 374; 
 Carter ». Good, 50 Ark. 156; 6 S. W. Eep. 719. 
 
LOCALITY or WRONGS. 239 
 
 local kind, such as trespass to land. This last quali- 
 fication 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 righf to use a stream in Bengal for irrigation, 
 or to float timber down a particular river in Canada; the 
 result of which would be that the most complicated ques- 
 tions of local law might have to be dealt with here as 
 matters of fact, not incidentally (as must now and then 
 unavoidably happen in various cases), but as the very 
 substance of the issues {d). 
 
 Judgment of Ex. Ch. in Phillips v. Eyre. We have 
 stated the law for convenience in a series of distinct 
 
 (0) See per Lord Cairns, Whitaker v. Court could entertain proceedings in 
 
 Forbes (1875), 1 0. P. Div. at p. 52, and respect of an injury done to foreign aoil. 
 
 tlie notes to Mostyn t. Fabrigas in iTfte Jf. ilfoa:ftom(1876),lP. Dlv. atp. 109. 
 
 Smith's Leading Cases. Tbe otber members of tbe Court said 
 
 (d) It was doubted by James L. J. nothing on this point, 
 (since the Judicature Acts) whether the 
 
 Act wrongftd by botb laws. Agreeing with the doctrine of the text, 
 in the United States where two States have similar statutes upon the 
 same subject, a suit may be maintained under one statute for a right 
 which accrued under the like statute of the other State ; the rule being 
 that the remedy is governed by the lex fori and the right by the lex loci. 
 Leonard v. Columbia S. N. Co., 84 N. Y. 48; McLeod v. Eailroad Co., 58 
 Vt. 727; Herrick v. Minn, etc., E. Co., 31 Minn. 11; Mannville Co. v. 
 Worcester, 138 Mass. 89; Knight v. Railroad Co., 108 Pa. St. 250; Boyce 
 V. Railroad Co., 63 la. 70; 10 N. W. Rep. 673; Anderson v. Milwaukee, 
 etc., Ry., 37 Wis. 321; Stoeckman v. Terre Haute ete., R. Co., 15 Mo. 
 App. 503; Morris v. Chicago, etc., R. Co., 65 111. 727; 54 Am. Rep. 39; 
 Chicago & N. W. Ry. Co. ■». Tuite, 44 111. App. 535; Wintuska v. Louis- 
 ville & N. R. Co. (Ky.), 20 S. W. Hep. 819; I^anna v. Grand Trunk Ry. 
 Co., 41 111. App. 116; Texas & P. Ry. Co. ■». Co4, 145 U. S. 593; 12 S. Ct. 
 Rep. 905; Wooden ». Western N. Y. & P. R. Co., 126 N. Y. 10; 26 N. E. 
 Rep. 1050. 
 
240 REMEDIES FOR TORTS. 
 
 propositions. But, considering the importance of the sub- 
 ject, it seems desirable also to reproduce the continuous 
 view of it given in thejudgment 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 v. 
 Matthews (e); and even with respect to those not falling 
 within that description our courts do not undertake uni- 
 versal jurisdiction. As a general rule, in order to found a 
 suit in England for a wrong alleged to have been com- 
 mitted abroad, two conditions must be fulfilled. First, the 
 wrong must be of such a character that it would have been 
 actionable if committed in England: therefore, in The 
 Halley (/) the Judicial Committee pronounced against a suit 
 in the Admiralty founded upon a liability by the law of 
 Belgium for collision caused by the act of a pilot whom the 
 shipowner was compelled by that law to employ, and for 
 whom, thetefore, as not being his agent, he was not respon- 
 sible 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 Cqse (g), and Blad v. Bamfield (A), 
 Lord Nottingham held that a seizure in Iceland, authorized 
 by the Danish Government and valid by the law of the place, 
 could not be questioned by civil action in England, although 
 the plaintifi', an Englishman, insisted that the seizure was in 
 violation of a treaty between this country and Denmark — 
 a matter proper for remonstrance, not litigation. And in 
 Dobree v. Napier (i). Admiral Napier, having, when in the 
 
 (e) 4 T. E. BOS (1792: no action here (/) L. E. 2 P. C. 193, 37 L. J. Adm. 33 
 
 tor trespass to land In Canada). The (1868). 
 student will bear in mind that Phillips (jr) 3 Swanst. 603. 
 
 \.Eyre (1870), was before tl^e Judicature (ft) 3 Swanst. 604. 
 
 Acts. (i) 2 Blng. N. O. 781 (1836). 
 
LIMITATION OF ACTIONS. . 241 
 
 service of the Queen of Portugal, captured in Portuguese 
 water an English ship breaking blockade, was held by the 
 Court of Common Pleas to be justified by the law of 
 Portugal and of nations, though his serving under a foreign 
 prince was contrary to English law, and subjected him 
 to penalties under the Foreign Enlistment Act. And in 
 Reg V. Lesley (A), an imprisonment in Chili on board a 
 British ship, lawful there, was held by Erie C. J., and the 
 Court for Crown Cases Reserved, to be no ground for an 
 indictment here,*there being no independent law of this 
 country making the act wrongful or" criminal. As to 
 foreign laws affecting the liability of parties in respect of 
 bygone transactions, the law is clear that, if the foreign 
 law touches only the remedy or procedure for enforbing 
 the obligation, as in the case of an ordinary statute of 
 limitations, such law is no bar to an action in this country; 
 but if the foreign law extinguishes 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 distinction is well illustrated on the one hand by 
 Huber v. Steiner (J), where the French law of five years' 
 prescription 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 suit {tempiis et modum 
 actionis instiluendae), and did not affect to destroy the obli- 
 gation of the contract {valorem contractus) ; and on the 
 other hand by Potter v. Brown (m), where the drawer of a 
 bill at Baltimore upon England was held discharged from 
 his liability for the non-acceptance of the bill here by a 
 certificate in bankruptcy, under the law of the United 
 States of America, the Court of Queen's Bench adopting 
 the general rule laid down by Lord Mansfield in Ballantine 
 V. Oolding {n), and ever since recognized, that, « what is a 
 
 (ft) Bell C. C. 220, 29 L. J. M. 0. 97 (m) 5 East, 124. 
 
 /jggQj (k) Cooke's Bankrupt Law, 487. 
 
 (0 2Bine. N.C. 202. 
 
242 EEMEDIES FOE TORTS. 
 
 discharge of a debt in the country where it is contracted is 
 a discharge of it everywhere.' So that where an obliga- 
 tion by contract to pay a debt or damages is discharged 
 and avoided by the law of the place where it was made, the 
 accessory right of action m 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 avoided. Cases may possibly arise in which 
 distinct and independent 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 and dis- 
 -posed of) applicable to the present case." 
 
 Liimitation of actions. The times in which actions of 
 tort must be brought are fixed by the Statute of Limitation 
 of James I. (21 Jac. 1, c. 16) as modified by later enact- 
 ments (w). No general principle is laid down, but action- 
 able 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 rega rd to the actual words of 
 the statute, according to the modern construction and 
 practice : — 
 
 Six years. 
 Trespass to land and goods, conversion, and all other 
 common law wrongs (including libel) except slander by 
 words actionable ^er se (o) and injuries to the person. 
 
 (n) See the text of the statutes, (o) See Blake Odgers, Digest of Law- 
 
 Appendix 0. of Libel, 2nd ed. 530. 
 
 Limitation ol actions. In the Uaited States the several States have 
 varying statutes regulating the time in which actions for torts must oe 
 begun. 
 
LIMITATION OF ACTIONS. 243 
 
 Four years. 
 Injuries to the person (including imprisonment). 
 
 Two years. 
 Slander by words actionable per se. 
 
 Suspension of the statute by disabilities. Persons who 
 at the time of their acquiring a cause of action are infants, 
 married women, or lunatics {p), have the period of limita- 
 tion reckoned against them only from the time of the dis- 
 ability ceasing ; and if a defendant is beyond seas at the 
 time of the right of action arising, the time runs against 
 the plaintiff only from his return. No part of the United 
 
 ip) Plaintiffs imprisoned or being be- yond seas is the result of 1 & 5 Anne, o. 
 
 vend the seas bad the same right by 3 [al. 16], s. 19, as explained by 19 &20 
 
 the statute of James I., but this was Vict. c. 97, s. 12. As to the retrospective 
 
 abrogated by 19 & 20 Vict. c. 97 (the Mer- effect ot s. 10, see Pardo v. Bingham 
 
 oantile Law Amendment Act, 1S56),S. 10. (1869), 4 Oh. 735, 39 L. J. Oh. 170. 
 The existing law as to defendants be- 
 
 Suspension ot tlie statute by disabilities. The running of the statute 
 Is suspended by civil disability ; as insanity. Smith v. Bayrlght, 34 N. J. 
 Eq. 424; Little v. Downing, 37 N. H. 355; "Wright v. West, 2 Lea, 78; 
 Potts V, Hines, 57 Miss. 735; Moore v. City of Waco, 86 Tex. 206; 20 S. 
 W. Rep. 61; Clark v. Trail, 1 Mete. (Ky.) 35; Sasser v. Davis, 27 Tex. 
 656; Rutherford v. Folger, 20 N. J. L. 299; Oliver v. Berry, 53 Me. 206; 
 coverture, Bauman v. Grnbbs, 26 Ind. 419; Norwood v. Gonzales County, 
 79 Tex. 218; 14 S. W. Rep. 1057; Ragsdale v. Barnes, 68 Tex. 504; 5 S. 
 W. Rep. 68; Bailey v. Reed, 14 Phila. Rep. 167; Sledge v. Clopton, 6 Ala. 
 589; Michan v. Wyatt, 2i;Ala. 813; Fearn v. Shiley, 31 Miss. 301; McLean 
 V. Jackson, 12 Ired. L. 149; Wilson v. Wilson, 36 Cal. 447; infancy, Smith 
 V. Escoubas, 43 La. An. 932; 9 So. Rep. 907; Vance v. Vance, 108 U. S. 
 514 ; Harris v. Ross, 86 Mo. 89 ; Moore v. Wallis, 18 Ala. 458 ; Ross v. 
 Morrow, 85 Tex. 172; 19 S. W. Rep. 1090; Grimsby o. Hudnell, 76 Ga. 
 378; Henley v. Robb, 2 Pick. (Tenn.) 474; 7 S. W. Rep. 190; Watson », 
 Watson, 63 Mich. 168 ; Fewell v. Collins, 3 Brev. 286 ; Treadw. Const. 
 202 ; Papot V. Trowell, 3 Rich. 234 ; " beyond, the seas," Umbler ». Whipple, 
 139 111. 311; 28 N. E. Rep. 841; Murray v. Baker, 3 Wheat. 541; Harris v. 
 Harris, 71 N. C. 174; Darie v. Briggs, 97 U. S. 628; Gulp v. Gulp (Kan.), 
 32 Pac. Rep. 1118; Pells v. Snell, 130 111. 379; 23 N. B. Rep. 117; Rhodes 
 V. Farish, 16 Mo. App. 430; State v. Furlong, 60 Miss. 839; Alexanders. 
 Dyer, 14 Pet. 141; imprisonment, State v. Calhoun, 50 Kan. 623; 33 Pac. 
 Rep. 38; Downs v. Allen, 10 Lea, 652. 
 
244 KEMEDIES FOB TORTS. 
 
 Kingdom or of the Channel Islands is deemed to be beyond 
 seas for this purpose (g'). If one cause of disability super- 
 venes 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 (>•). 
 
 Froih what time action runs. Where damage is the 
 gist of the action, the time runs only from the actual 
 happening of the damage (s). 
 
 In trover the statute runs from demand on and refusal 
 by the defendant, whether the defendant were the first 
 converter of the plaintiff's goods or not {(). 
 
 ig) See last note. 127, 56 L. J. Q. B. 529, affirming S. C. U 
 (r) Cj>. Borrows ■V. Ellison 0SJ1),Ij.'B,. Q. B. Div. 125. The same principle ap- 
 6 Ex. 128, 40 L. J. Ex. 131 (on the plies, of course, to special periods ot 
 Beal Property Limitation Act, 3 & 4 limitation of actions against pablic 
 Wm. IV. 0. 27) ; but the language of the bodies or officers; see Crumble v. Wall- 
 two statutes might be distingaished. send Local Boa/rd, '91, 1 Q. B. 503, 60 L. J. 
 
 (s) Backhouse v. Bonomi (1861), 9 H. L. Q. B. 392. 
 C. 503, 34 L. J. Q. B. 181 ; DarUy Main («) mUer v. Dett, '91, 1 Q. B. 468, 60 L. 
 
 CoUiery Co. v. Mitchell (1886), 11 App. Oa. J. Q. B. 404, 0. A. 
 
 Ftom wbat time action runs. In the case of Hogan v. Wolf (57 
 Hun, 588; 26 Abb< N. C. 1; 10 N. Y. S. Rep. 896) it was held, that the 
 statute of limitation begins to run against a cause of action for enticing 
 away of plaintifE's husband from the time of the enticement. The gen- 
 eral rule agrees with the text. See Sbrickler». Midland By. Co., 125 Ind. 
 412; 25 N. E. Bep. 455; Hempstead v. Cargill, 46 Minn. 188; 48 N. W. 
 Bep. 568, 686; Harbach v. Des Moines & K. C. By. Co., 80 la. 593; 44 N. 
 W. Kep. 348; Berson v. Ewing, 84 Cal. 89; 23 Pac. Rep. 1112; Murphy v. 
 Chicago etc., R. Co., 80 la. 26; 45 N. W. Bep. 392; Omaha & R, V. Co. 
 V. Brown, 29 Neb. 492; 46 N. W. Rep. 39; Culver v. Chicago, etc., Ry. 
 Co., 38 Mo. App. 130; Wright ■«. Syracuse, etc., R. Co., 49 Hun, 445; 3 
 N. Y. S. Rep. 480; St. Louis, etc., By. Co. v. Biggs, 52 Ark. 240; 12 S. 
 W. Bep. 331; Garrett ». Bickler, 78 111. 115; 42 m W. Bep. 621; Houston 
 . Water Works Co. v. Kennedy, 70 Tex. 233; 8 S. W. Rep. 36; Pordyce v. 
 Stone, 50 Ark. 250; 7 S. W. Rep. 129; Sullens v. Chicago, etc., Ry. Co., 
 74 la. 659; 38 N. W-Rep. 545; Athens Mfg. Co. v. Rucker, 80 Ga. 291; 4 
 S. E. Rep. 885; Gale». McDaniel, 72 Cal. 834; 13 Pac. Rep. 871; Colrick 
 V. Swinburne, 105 N. Y. 503; Printup v. Smith, 74 Ga. 157; Miller v. 
 Keokuk etc., By. Co., 63 la. 680; Knisley v. Stein, 52 Mich. 380; Dee ». 
 Hyland, 3 Utah, 308; Werges v. St. Louis, etc., B. Co., 35 La. An. 641; 
 Van Otsdal v. Burlington, etc., Ry. Co., 56 la. 470; Sharp v. Miller, 57 
 Cal. 431. 
 
LIMITATION OF ACTIONS. 245 
 
 Protection of justices, constables, &c. Justices of the 
 peace (m) and constables (v) are protected by general 
 enactments that actions 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 sultject 
 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 concealed fraud. The operation of the 
 Statute of Limitation is further subject to the exception 
 of concealed fraud, derived from the 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 (a;), considerably 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 diligence 
 would discover it. Such is now the rule of the Supreme 
 Court in every branch of it and in all causes (y). 
 
 («) 11 & 12 Vict. c. li, B. 8. eqnitable doctrine of general appUca- 
 
 (v) 24 Geo. II. c. H, a. 8. tlon withoat regard to the question 
 
 (x) See Q. B. Div. 68, per Brett I* J. whether before the Judicature Acts the 
 
 (,y) Gibbs T. Guild (1882), 9 Q. B. Dlv. Court of Chancery would or would not 
 
 69, 51 L. J. Q. B. 313, which makes the have had jurisdiction in the case. 
 
 Exception of concealed fraud. The American anthorities agree with 
 the text, vide Hickman v. Hickman, 46 Mo. App. 496; Bailey v. Glover, 21 
 Wall. 342; Johnson «. Roe, 1 Fed. Kep. 692; Amy v. Watertown No. 2, 
 130 U. S. 320; Michoud v. Girod, 4 How. 503; Piper v. Hoard, 107 N. Y. 
 67; Copper v. Lee, 1 Tex. Civ. App. 9; 21 S. W. Rep. 998; Reynolds v. 
 Hennessy, 17 R. I. 159; 20 At. Rep. 307; 23 At. Rep. 639; Cooke. Chi- 
 cago, etc. Ry. Co., 81 la. 551; 46 N. W. Rep. 1080; Peck v. Bank of 
 Amerika, 16 R. I. 710; 19 At. Rep. 369; Jones v. Van Doren, 130 U. S. 
 684; 9 S. Ct. Rep.' 685; Tomkins ». Hollister, 60 Mich. 470; 27 N. W. 
 Rep. 651; South Covington & C. S. Ry. Co. v. Gest, 34 Fed Rep, 628; 
 Quimby v. Blackey, 63 N. H. 77;' Clews v. Traer, 57 la. 459; Pendergrast 
 V. Foley, 8 Ga. 1; Williams v. Carle, 10 N. J. Eq. 543; Bricker v. Light- 
 ner, 40 Pa. St. 199; Smith v. Talbot, 18 Tex. 774; Coolidge v. Alcock, 30 
 N. H. 329; Cole v. McGlathry, 9 Me. 131; Parnam ». Brooks, 9 Pick. 212. 
 
246 EEMEDIES FOK TORTS. 
 
 A plaintiff may not set up by way of amendment claims 
 in respect of causes of action which are barred by the 
 statute at the date of amendment", though they were not so 
 at the date of the original writ (2). 
 
 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 legisla- 
 tion has done nothing beyond removing some of the 
 privileged disabilities. 
 
 -<^ 
 
 Conclusion of General Part. We have now . reviewed 
 the general principles which are common to the whole law 
 of Torts as to liability, as to exceptions fi-ora liability, and 
 as to remedies. In the following part of this work we have 
 to do with the several distinct kinds of actionable wrongs, 
 and the law peculiarly applicable to each of them. 
 
 (2) Weldon T. Neal (1887), 18 Q. B. Div. 394, 50L. J. Q. B. 621. 
 
V. 
 
 247 
 
 Book IT. 
 SPECIFIC WRONGS. 
 
 CHAPTER VI. 
 
 PERSONAL WRONGS. 
 
 I. — Assault and Battery. 
 
 Preliminary. Secufity for the person is among th^ first 
 conditions of 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 
 excused by allowed cause, and against the present appre- 
 hension of any of these things. The application of unlaw- 
 ful 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. These wrongs are likewise indictable 
 offences, and under modern statutes can be dealt with by 
 magistrates in the way of summary jurisdiction, which is 
 the kind of redress most in use. Most of the learning 
 of assault and battery, considered as civil injuries, turns 
 on the determination of the occasions and purposes 
 by which the use of force is justified. The elementary 
 notions are so well settled as to require littl^illustration . 
 
 "What shall be said a battery. " The least touching of 
 another in anger is a battery " (a); " for the law cannot 
 
 (a) Holt C. J., Cole y. Turner (1705), 6 Mod. 149, and Bigelow L. C. 218. 
 
248 PKESONAL WRONGS. 
 
 draw the line between different degrees of violence, and 
 therefore totally prohibits the first and lowest stage of it ; 
 
 What shall be said a battery. There are various definitions in the 
 authorities of what constitutes a battery, all agreeing In substance with 
 the text. Thus in a Texas case it is said by the court : " • The use of 
 any lawful violence upon the person of another, with intent to injure him, 
 whatever be the means or degree of violence used, is an assault and 
 battery.' This definition makes it necessary that two things should 
 concur — one physical the other mental." McKay v. State, 44 Tex. 48. 
 
 From a reckless disregard for the safety of others the law presumes 
 an intent to injure. Peterson v. Hoffner, 59 Ind. 13; 26 Am. Eep. 81; 
 Cowley V. State, 10 Lea, 282; "Walker v. State, 8 Ind. 290; Markley v. 
 Whitman (Mich.), 54 N. W. Eep. 763. 
 
 The result of a successful assault is a battery, and, therefore, every 
 battery includes an assault. The quantity of physical force to be used 
 by an assailant in order that his attack may amount to a battery will 
 depend,upon the circumstances. Such questions may be affected by the 
 method adopted in applying the force, by the positions in society that the 
 parties occupy, etc. Fitzgerald v. Fitzgerald, 51 Vt. 420; State v. 
 Wright, 52 Ind. 307; Cooper v. McKenna, 124 Mass. 284; 26 Am. Rep. 
 667 ; State v. Smith, 80 Mo. 518 ; 1 Abbott's Law Die. 131 ; Boyle v. Case, 
 18 Fed. Eep. 880; Eicker «. Freeman, 50 N. H. 420; 9 Am. Eep. 267; 
 Johnson v. State, 17 Tex. 515; Frederickson v. Singer 'Mfg. Co., 38 
 Minn. 356; 37 N. W. Eep. 453; Chapman v. State, 78 Ala. 463; Lawson 
 «. State, 30 Ala. 14; Kirkland v. State,' 43 Ind. 146; 13 Am. Eep. 386; 
 Hannan v. Gross, 5 Wash. St. 703; 32 Pac. Eep. 787; Nipp v. Wiseheart 
 (Ind. App.), 34 N. E. Eep. 1006. 
 
 The mere taking hold of the coat, or laying the hand gently on the 
 person of another, if done in anger, or in a rude and Insolent manner or 
 with hostility, is a battery. United States v. Ortega, 4 Wash. 634. 
 
 So Is a blow on the skirt of one's coat, when upon his person ; or 
 striking one's cane, while in his hand. Eespublica v. De Longchamps, 
 1 Dall. 114. See State v. Davis, 3 Sneed (Tenn.), 66. 
 
 «• One is guilty of an assault and battery who delivers to another a 
 thing to be eaten, knowing that it contains a foreign substance and con- 
 cealing the fact, if the other, in ignorance of the fact, eats it and ig 
 injured in health." Commonwealths. Stratton, 114 Mass., 303. SeeCarr 
 V. State (Ind.), 34 N. E. Eep. 533. 
 
 One who rides a bicycle against another, who is facing the other way 
 ■where there is ample room for passing and nothing to obstruct the view 
 is liable in assault and battery. Mercer v. Corbin, 117 Ind. 460; 2b N. 
 E. Eep. 132. 
 
 For cases on the liability of corporations for assault and battery, see, 
 ante, p. 67, 
 
ASSAULT. 249 
 
 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 interferences 
 with the person which cause no bodily barm are beyond 
 cojmparison more insulting and annoyingthan others which 
 do cause it. Spitting in a man's face is more offensive 
 than a blow, and is as much a battery in law (c). Again, 
 it does not matter whether the force used is applied directly 
 or indirectly, to the human body itself or to anything in 
 contact with it ; nor whether with the hand or anything held 
 in it, or with a missile (d). 
 
 What an assault. Battery includes assault, and though 
 assault strictly means an inchoate battery, the word is in 
 modern usage constantly made to include battery. No 
 reason appears for maintaining the distinction of terms in 
 our modern practice ; and in the draft Criminal Code of 
 1879 " assault" is deliberately used in the larger popular 
 sense. "An assault" (so runs the proposed definition) 
 " is the act of intentionally applying fot-ce to the person of 
 another directly or indirectly, or attempting or threatening 
 by any act or gesture to apply such force to the person of 
 another, if the person making the threat causes the other 
 to believe (e) upon reasonable grounds that he has present 
 ability to effect his purpose " (/). 
 
 (J) BlaokBt. Comm. iii. 120. (e) One might e:ifpect " believes or 
 
 Cc) B. V. Cotesworth, 6 Mod. 172. causes," etc.; but this would be an ex. 
 
 (d) Puraell v. Home (1838), 3 N. & P. tension of the law. f No assault is coni- 
 
 S64 (throwing water at a person is as- mltted by presenting a gun at a man 
 
 sault; if the water falls on him as In- who cannot see it, any mpxe than by 
 
 tended. It is battery also). But there Is forming an intention to shoot at him. * 
 
 much older authorlty,seeEeg.Brev. 108 b, (/) Criminal Code (Indictable Of- 
 
 a writ for throwing " qnendam liquor- fences) Bill, s. 203. Mr. Justice Ste- 
 
 em calidum" on the plaintiff: "casus phen's definition in his Digest (art. 241) 
 
 erat hulusmodl praecedentis brevis: is more elaborate; and the Indian Penal 
 
 qnaedam mulier proleolt super aliam Code has anextremelyminute definition 
 
 mulierera ydromellum quod angllce of "uslngforce to another " (s. 349). As 
 
 dicitur worte quod erat nimis calidum." Mr. Justice Stephen remarks, if legis- 
 
250 PERSONAL WKONGS. 
 
 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 " (gf). The 
 
 latois begin defining In this way It is (fr) Bacon Abr. " Assanlt and Bat- 
 haid to see wbat they can asBnme to be tery," A; Hawkins P. 0. 1. 110. 
 known. 
 
 Wliat an assaiilt. The numerous American authorities upon this sub- 
 ject are in substantial accord with the text. Thus, in the case of Tar- 
 ver V. State (43 Ala. 356), the court said: — 
 
 "An assault is any attempt or offer, with force or violence, to do a 
 corporal hurt to another, whether from malice or wantonness, with such 
 circumstances as denote, at the time, an intention to do It, coupled 
 with a present ability to carry such intention into effect. See' State v. 
 Baker, 65 N.E. 382; State v. Neely, 74 N. C. 426; State ». Myerfleld, 
 Phil.L. 109; People v. Campbell, 30 Oal. 312; People v. Bransby, 32 N. Y. 
 525; Johnson v. State, 43 Tex. 676 ; Cooper v. State, 8 ; Lawson v. State, 
 30 Ala. 15; State v. Davis, 1 Ired. 128; 35 Am. Dec. 735; State v. Mor- 
 gan, 3 Ired. 186; State v. Vannoy, 65 N. C. 532; State v. Chipman, 81 N. 
 C. 513 ; State v. Marsteller, 84 Id. 726 ; State v. Martin, 85 Id. 508 ; 39 
 Am. Eep. 711 ; Simpson v. State, 59 Ala. 18 ; 31 Am. Kep. 1 ; Common- 
 wealth V. Hurley, 99 Mass. 433; Bonner v. State (Ala.), 12 So. Eep. 408; 
 Richmond v. Fiske (Mass.), 35 N. E. Eep. 103. 
 
 The offense is complete if there is an act done, indicating an inten- 
 tion coupled with ability. Higginbotham ». State, 23 Texas, 574; State 
 V. Epperson, 27 Mo. 255 ; State v. Church, 63 N. C. 15; Barnes v. Martin, 
 Wis. 240; Taver v. State, 43 Ala. 854 ; Commonwealth ». White, 110 Mass. 
 407; Crow v. State, 41 Texas, 468; State v. Taylor, 20 Kas. 643; Barbee 
 V. Eeese, 60 Miss. 906; Bnglehardt v. State, 88 Ala. 100; 7 So. Rep. 164; 
 State V. Myers, 19 la. 517. / 
 
 Where the act is done with intent to do corporal hurt, an assault may 
 be committed by striking at a person with the hand, or with a stick 
 or by shaking the flst at him, or by presenting any weapon within such 
 distance that hurt might be Inflicted. United States v. Hand, 2 Wash. 
 436; United States w. Richardson, 5 Cranch C. Ct. 348. See State ». 
 Martin, 85 N. C. 508; 39 Am. Eep. 711; State v. Vannoy, 65 N. C. 532; 
 Bishop V. Ranney, 59 Vt. 316; 7 At. Rep. 820. See Mitchell o. Mitchell, 
 45 Minn. 50; 47 N. W. Rep. 308; State v. Rawles, 65 N.C. 334; Morgan 
 V. State, 33 Ala. 413; State v. Taylor, 20 Kan. 643,- United States v. Kier- 
 man, 3 Cranch C. Ct. 436; State v. Shepherd, 10 la. 126; Beach v. 
 
ASSAULT. 251 
 
 essence of the wrong is putting a man in present fear of 
 violence, so that any act fitted to have that effect on a 
 reasonable man may be ao 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 apprehended, anything that looks like a fire-arm. So 
 if a man is advancing upon another with apparent intent 
 to strike him, and is stopped by a third persop before he is 
 
 (ft) B. V. James (l&M), 1 C. & K. 530, is Abinger, Blake v. Barnard, 9 C. & P. at 
 
 apparently to the contrary. Tindal C. p. 628) is against that of Parke B. In M. 
 
 J. held that a man could not be con- v. St. George (1840), 9 C. & P. 483, 493, 
 
 victed of an attempt to discharge a which on this point would almost cer- 
 
 loaded flre-arm under a criminal stat- tainly be followed at this day. The 
 
 nte, nor even of an assault, if the arm. case is OTerraled on another point, 
 
 is (as by defective priming) not In a purely on the words of the statute, and 
 
 state capable of being discharged; not here material, in B. v. Duckworth, 
 
 but this opinion (also held by Lord '92, 2 Q. B. 83. 
 
 Hancock, 27 N. H. 223; State v. Cheriy, 11 Ired. 475; Commonwealth v. 
 McLaagbllB, 5 Allen, 507. 
 
 Malice Is not an ingredient of an assault with a dangerous weapon. 
 United States v. Lunt, 1 Sprague, 311 ; United States v. Small, 2 Cur- 
 tis, 24j 
 
 To violently strike a horse before a carriage in which a person is rid- 
 ing is an assault on the person. De Marentile u.-Oliver, 2'n. J. L. 380 
 Kirkland ». State, 43 Ind. 146; Clark v. Downing, 55 Vt. 259; 45 Am 
 Rep. 612. So Is riding a horse so near to one as to endanger his person 
 to his alarm. State i;. Siins, 3 Strobh. 137; 1 Sneed (Tenn.), 606; Com 
 monwealth ». McLaughlin, 5 Allen, 507; Tarver v. State, 43 Ala. 356 
 State V. Blackwell, 9 Ala. 79. 
 
 What is not an assault. But a person does not commit an assault by 
 merely holding a cocked pistol by his side, without any attempt to use 
 it, and spying to his antagonist, " I am ready for you." Warren v. State, 
 33 Texas, 517. See Mitchell v. State, 41 Ga. 537; Lawson v. State, 30 
 Ala. 14. 
 
 A, pointed a gnn at B. who was armed with a knife and threatened to 
 assault A., but A. did not intend to shoot, unless in self-defense : held, 
 not an assault by A. State v. Blackwell, 9 Ala. 79. See White v. State, 
 29 Tex. App. 630; 16 S. W. Rep. 340. 
 
 A. held oat his arms to take hold of B., a female who ran away: held, 
 not an assault to commit rape. House v. State, 9 Tex. App. 53. 
 
 Where a person raised a whip and shook it at another within striking 
 distance and said, " Were you not an old man, I would knock you 
 down," the act did not constitute an assault. State v. Crow, 1 Ired. 
 375. 
 
252 PERSONAL WRONGS. 
 
 actually within striking distance, he has committed an 
 assault («). Acts capable in themselves of being an assault 
 may on the other hand be explained or qualified by words 
 or circumstances contradicting what might otherwise be 
 inferred from them. A man put his hand on his 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 intention of actually striking (k). 
 
 Excusable acts. Hostile or unlawful intention is neces- 
 sary to constitute an indictable assault ; and such touching, 
 
 Ci) Stephens t. Myers, 1 C. & P. 319; Criminal Law and Trespass In Fisher's 
 
 liigelow L. C. 217. A large proportion Digest. Some of the dicta, as might be 
 
 of the anthoritles on this subject are expected, are in conflict. 
 
 Nisi Prlus oases (op. however Bead v. (A) Tubenille y. Savage (1669), 1 
 
 Coker (1853), 13 C. B. 850, 22 L. J. C. P. Mod. 3. 
 201) : see the sub-titles of Assault under 
 
 Excusable acts. A civil action lies for an unwarranted assault and 
 battery although not committed in anger. Johnson v. McConnell, 15 
 Hud, 293. See People v. Lilley, 43 Mich. 621, citing Wilson v. People, 
 24 Id. 410; "Woodruff v. Woodruff, 22 Ga. 237; Palmer u. Chicago etc. 
 R. R. Co., 112 Ind. 260; Mercer v. Corbin, 117 Id. 453; Eicker v. Free- 
 man, 50 N. H. 420; Prall v. Lull, 49 Wis. 483; Carmichael v. Dolen, 25 
 Neb. 335; 41 N. W. Rep. 178; Vandenburgh ». Truax, 4 Denio, 464; 
 Welch V. Duran, 36 Conn. 182; Elchels v. State, 1 Sneed (Tenn.), 606. 
 
 In the case of Vosburg v. Putney (80 Wis. 523; 50 N. W. Rep. iGB; 56 
 N. W. Rep. 480), where the ground of action was that the defendant had 
 kicked the plaintiff, the court said: " The jury have found that the de- 
 fendant, in touching the plaintiff with his foot, did not intend to do him 
 any harm, counsel for defendant maintain that the plaintifE has no cause 
 of action, and that the defendant's motion for judgement on the special 
 verdict should have been granted. In support of this proposition coun- 
 sel quote from 2 Oreenl. Ev. §83, the rule that ' the intention to do harm 
 is of the essence of the assault.' Such is the rule, no doubt, in actions 
 or prosecutions for mere assaults. In such a cas^ the rule is correctly 
 stated, in many of the authorities cited by counsel, that plaintiff must 
 show either that the intention was unlawfu^. or that the defendant is in 
 fault. If the intended act is unlawful, the intention to commit it must 
 necessarily be unlawful. Hence as applied to this case, if the kicking of 
 the plaintiff by the defendant was an unlawful act, the- intention of the 
 defendant to kick him was also unlawful." 
 
 Words not an assault. The law abhors the use of force either for 
 
ASSAULT. 253 
 
 pushing, or the like as belongs to the ordinary conduct of 
 life, and if free from the use df unnecessary force, is 
 
 attack or defense and never permits its ase unnecessarily. And it is for 
 this reason that the courts accord in holding that words in themselves 
 never amount to an assault. " No words, whether spoken or printed or 
 written, however insulting and opprobrious they may be, will justify an 
 assault and battery or even an assault." Fatnall v. Courtney, 6 Houst. 
 437. See People •». Lilley, 43 Mich. 625, supra; Burns v. State, 80 Ga. 
 544; 7 S. E. Rep. 88; Scott v. Fleming, 16 111. Ap. 539; Smith v. State, 39 
 Miss. 521 ; State v. Mooney, Phill. L. 434; State v. Workman (S. C), 17 
 S. E. Sep. 694; State v. Briggs (Tex. Cr. App.), 21 S. W. Bep. 46. 
 
 Upon the question whether violent words may be proved in mitigation 
 of damages the English cases are unanimous in holding that they may ; 
 but in the United States, this rule has been adopted by the majority of 
 the courts with the qualification that the assault and battery in resent- 
 ment of Insulting words must be committed Immediately upon the pro- 
 vocation being offered and before the hot blood of indignation has had 
 time to cool. " In Thrall v. Knapp (17 Iowa, 468) the court said: " The 
 clear distinction is this: contemporaneous provocation of words or acts 
 are admissible, but previous provocation are not; and the test is whether 
 the blood has had time to cool." In Goldsmith v. Joy (61 Vt. 449) an 
 interesting question was proposed and discussed by the court, as follows : 
 " If provocating words may mitigate, it follows that they may reduce the 
 damages to a mere nominal sum and thus practically justify an assault 
 and battery. But why under this rule may they not fully justify? If in 
 one case, the provocation is so great the jury may award only nominal 
 damages, why, in another, in which the provocation is far greater, should 
 they not be permitted to acquit the defendant and thus overturn the well 
 settled rule of the law, that words cannot justify an assault? On the 
 other hand if words cannot justify they should not be heard to say that 
 the plaintiff was first in the wrong by abusing him with insulting words 
 and therefore though he struck and injured the plaintiff, he was only 
 partly in the wrong and should pay only part of the actual damages." 
 In this case the authorities are collated and discussed and it,is followed 
 in Willey v. Carpenter, 64 Vt. 212. 
 
 Consent. It is a recognized rule that a person cannot recover a 
 recompense for an injury received by his own consent, provided the act 
 from which the Injury results be lawful. Volenti nan Jit injuria. See 
 Stout V. Wren, 1 Hawks, 420; 9 Am. Dec. 653; Champer v. State, 14 
 Ohio St. 437; Duncan v. Commonwealth, 6 Dana, 295; State v. Beck, 1 
 Hill (S. C), 363; 26 Am. Dec. 190; Fitzgerald v. Valvin, 110 Mass. 153; 
 Bell V. Hansley, 3 Jones L. 131. A majority of the decisions hold that 
 consent to the commission of an unlawful act resulting in an injury, 
 may be proved in mitigation of damages; but this is the full extent of 
 the compassion which has been shown by the courts for vanquished 
 
254 PERSONAL WRONGS. 
 
 neither an offence nor wrong. " If two or more meet in a 
 narrow passage, and without any violence or design of 
 harm the one touches the other gently, it will be no bat- 
 tery" (Z). 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 intentional 
 touching is justified by the common usage of civil inter- 
 course, as when a man gently lays his hand on another t© 
 attract attention. But the use of needless force for this 
 purpose, though it does not seem to entail criminal liability 
 where no actual hurt is done, probably makes the act civilly 
 wrongful (n). 
 
 Mere passive obstruction is not an assault, as where a 
 man by standing iu a doorway prevents another from 
 coming in (o). 
 
 Words cannot of themselves amount to an assault under 
 any circumstances, though it is said that a contrary opinion 
 formerly prevailed : 
 
 " For Meade's case proves, or my Beport's in fault. 
 That singing can't be reckoned an assanlt " (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 otherwise be assaults 
 
 (O Holt C. J., Cole V. Turner, 6 Mod. actual exercise of his right: see p. 160 
 
 149. above. 
 
 (m) Steph. Dig. Or. Lavf , art. 241, Ulns- (,p) The Cirouiteers, by John Leyces- 
 
 trations. terAdolphus (the supposed speaker is 
 
 (n) Cowards. BaddeUy (1859),4H. & Sir Gregory Lewln), L. Q. E. 1. 232; 
 
 N. 478, 28 L. J. Ex. 260. Meade's and Belt's ca., 1 Lewin O. 0. 184 : 
 
 (o) Innesv. WyUe'(,ieSl),lC. &K.251. "no words oi sini^infr are equivalent to 
 But it seems the other, if he Is going an assault," per Holroyd J. Cp. Haw- 
 where- he has a right to go, is justified in kins P. C. i. 110. But it was formerly 
 pushing him aside, though not in held otherwise : see 27 Ass. 134, pi. 11, 17 
 striking" or other violence outside the Ed. IV. 3, pi. 2, 36 Hen. VI. 20 b, pi. 8. 
 
 pugilists. Barholt v. "Wright, 46 Ohio St. 179; 12 N. E. Rep. 185, 
 reviewing the cases. See Limits of Consent, ante, p. 186. 
 
ASSAULT. 255 
 
 (g-), striking in sport for example; or even, if coupled 
 with reasonable cause, wounding and other acts of a dan- 
 gerous kind, as in the practice of surgery. But consent 
 will not make acts lawful which are a breach of the peace, 
 or otherwise' criminal in themselves, or unwarrantably 
 dangerous. To the authorities already cited (r) under the 
 head of General Exceptions we may add Hawkins' para- 
 graph on the matter. 
 
 " \^ seems to be Ifhe better opinion thai' 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, because the intent 
 of the parties seems no way unlawful, but rather com- 
 mendable, and tending mutually to promote activity and 
 courage. Yet it is said that he who wounds another in 
 fighting with naked swords does in strictness forfeit such a 
 recognizance, because no consent can make so dangerous a 
 diversion lawful " (s). 
 
 It has been repeatedly held in criminal cases of assault 
 that an unintelligent assent, or a consent obtained by fraud, 
 is of no effect (<). The same principles would no doubt 
 be applied by courts of civil jurisdiction if necessary. 
 
 i Self-defence. When one is wrongfully assaulted it is 
 lawful tp repel force by force (as also to use force in the 
 
 (q) Under the old system of pleading contests " gloriae caasa et virtntis," D. 
 this was not a matter of special jastifl- 9. 2, ad. 1. Aqnil. 7, § 4. 
 cation, but evldienoe under the general (*) Cases collected in Fisher's Dig. 
 issae, an assault by consent being a con- ed. Mews, 2081-2. Similarly where con- 
 tradiction In terms: Christopherson y. sent is given to an unreasonably dan^ 
 Bare (1818), 11 Q. B. 473, 17 L. J. Q. B. gerons operation or treatment by one 
 109. But this has long ceased to be of whorelieson the prisoner's skill, it does 
 any Importance in England. not excuse him from the guilt of man- 
 (r) P. 147, above. slaughter If death ensues: Common- 
 («) Hawkins, P. C. 1. 484. The Boman wealth v. Pierce, 138 Mass. 165, 180. 
 law went even farther in encouraging 
 
 SeU-Defence. Agreeing with tlie text, vide Shorter v. People, 2 N. Y. 
 193; Patton v. Peoflg, 114 111. 605; 2 N. E. Eep. 641; Marts v. State, 26 
 Ohio St. 162; People «, Dann, 63 Mich. 490; 19 N. W. Bep. 159; Miller v. 
 
256 PEBSONAli WRONGS. 
 
 defence of those whom one is bound to protects or for 
 keeping the peace), provided that no unnecessary violence 
 
 State, 74 Ind. 1, followed in Presser v. State, 77 Ind. 278; Long v. State, 
 52 Miss. 23; Keep o. Quallman, 68 Wis. 451; 32 N. W. Eep. 233; Drew 
 V. Comstock, 67 Mich. 176; Commonwealth v. Kennard, 8 Pick. 133; 
 Pond V. People, 8 Mich. ISO; People c.Lennon, 71 Mich. 300; 38 N. W. 
 Rep. 871; Harrison v. Harrison, 43 Vt. 417; Jamison v. Moseley, 68 Miss. 
 336; 10 So. Eep. 682; Ogden v. Claycomb, 52 111. 365; Commonwealth v. 
 Mann, 116 Mass. 58; State v. Nash, 88 N. C. 118; Commonwealth v. 
 White, 110 Mass. 409. See cases cited, ante, p. 168. 
 
 The authorities are not uniform as to the obligation of one violently 
 assaulted to retreat but the better doctrine seems to be tluit where a 
 person has used every reasonable precaution to prevent an encounter and 
 has, without any fault of his own, had a fight thrust upon him, it is not 
 his legal duty (undoubtedly not his moral dutyj, to cowardly retire as 
 his assailant approaches. See Haynes v. State, 17 Ga. 465; Tweedy v. 
 State, 5 la. 433; State v. Dixon, 75 N. C. 275; Steinmetz v. Kelly, 72 
 Ind. 442; Morris v. Casel, 90 Id. 148. Contra Howland v. Day, 56 Vt. 
 318. 
 
 It is a general rule in law that one should not use an unreasonable and 
 a disproportionate degree of violence towards the person of another in 
 self-defense. Thus in the case of Dole v. Erskine (35 N. H. Sll;, the 
 court said: "But if the person assaulted uses excessive force, beyond 
 what is necessary for self-defense, he is liable for the excess, and the 
 facts may be shown under the replication of de injuria. Up to the time 
 that the excess is used, the party assaulted is in the right. 
 Until he exceeds the bounds of self-defense he has committed no 
 breach of the peace and done no act for which he is liable ; while his as- 
 sailant, up to that time, is in the wrong, and is liable for his illegal acts. 
 See State v. Brooks, 99 Mo. 144. 
 
 It is apparent that in such a case there have, in effect, been two tres- 
 passes committed ; the one by the assailant in commencing the assault,, 
 and the other by the assailed party in using excessive force. 
 
 The only difference would seem to consist in the length of time that has 
 elapsed between the two trespasses. In a case where excessive force is 
 used, the party using it is innocent up to the time that he exceeds the 
 bounds of self-defense. When he uses excessive force, he then for the 
 first time becomes a trespasser. In such a case each party may have an 
 action against the other ; the one for the original assault and the other 
 for the assault which begins with the employment of excessive force. 
 Curtis V. Carson, 2 N. H. 539; Hannen v. Edes, 15 Mass. 849; Scribner 
 V. Beach, 4 Denio, 448; Thompson v. Berry, 1 Cranch C. Ct. 45; McHhoy 
 V. Cockran, 2 A. K. Marsh. 274; Bobinson v. Hawkins, 4 T. B. Mon. 136; 
 Philbrick v. Foster, 4 Ind. 442; Hazels. Clark, 3 Harr. (Del.) 222; Close 
 V. Cooper, 34 Ohio St. 98; Breitenbach v. Trowbridge, 64 Mich. 893; 31 
 
ASSAULT. 257 
 
 be ased. 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 incapably of being concluded 
 beforehand by authority, so we do not find any decisions 
 which attempt a definition. We must be content to say 
 that the resistance must " not exceed the bounds of mere 
 defence and prevention" (m), or that the force used in 
 defence must be not more than "commensurate" with 
 that which provoked it (u). It is obvious, however, that 
 the matter is of 'much graver importance in criminal than 
 in civil law (t»)- 
 
 (») Blackst. Comm. iii. i. siou Dicey, Law of the Constltntion, Srd 
 
 (v) Beece v. Taylor, 4 N. & M. •470. ed. appx. note 3. There are many mod- 
 
 (w) See Stephen's Digest of the ern American decisions, chiefly in the 
 
 Criminal Law, art. 200, and op. Criminal Southern and Western States. See 
 
 Code Bill, ss. 55—57 ; and for full discus- Cooley on Torts, 166. 
 
 N. W. Eep. 402; Marsh v. Bristol, 65 Mich. 378; 32 S. W. Eep. 645; 
 Tucker v. Walters, 78 Ga. 232; 2 S. E. Eep. 689; Drinlthorn v. Dubel, 85 
 ■Mich. 532; 48 N. W. Eep. 710; Baldwin v. Hayden, 6 Conn. 457; Gallagher 
 V. State, 3 Minn. 270; Floyd v. State, 36 Ga. 91. 
 
 Still rt seems that where the excess' of violence used in defense is in- 
 considerable in amount the law gives no right of action therefor. " The 
 law has enough regard for the weakness of human nature to regard a 
 violent attack as a sufficient excuse for going beyond the mere necessi- 
 ties of self-defense and chastising the aggressor within such bounds as 
 did not exceed the natural limits of the provocation." People v. Pearl, 
 46 Mich. 210. 
 
 Defence of dwelling. A man may defend his dwelling or " castle " to the 
 last extremity. Pitf ord v. Armstrong, Wright (Ohio), 94 ; McPherson v. 
 State, 22 Ga. 478; Thompson v. State, 55 Id. 47; State v. Burwell, 62 N. 
 C. 661; State v. Abbott, 8 W. Va. 741; Wall v. State, 51 Ind. 453; State 
 V. Stockton, 61 Mo. 382; State v. Peacock, 40 Ohio St. 333; State v. 
 Mlddleham, 62 la. 150; 17 N. W. Eep. 446. 
 
 Defence of family. It is, also, an established rule that a person may 
 defend any member of his family against an assault as he could himself. 
 Staten v. State, 30 Miss. 619; Patten v. People, 18 Mich. 314; Common- 
 wealth V. Malone, 114 Mass. 295; Stoneman v. Commonwealth, 26 Gratt. 
 837; Smith v. Slocum, 62 111. 354; State v. Greer, 22 W. Va. 800. 
 
 But no one has a right to revenge wrongs done to any member of his 
 family after the danger is repelled and the violence not impending. 
 State V. Gibson, ^t/ Ired. 214. 
 
 17 
 
258 PEKSONAL WRONGS. 
 
 Menace distinguished from assault. Meaace without 
 assault is in some cases actionable. But this is on the 
 ground of its causing a certain special kind of damage ; 
 and then the person menaced need not be the person who 
 suffers damage. In fact the old authorities are all, or 
 (nearly all, on intimidation 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 sam^ 
 genus with assault and battery, we shall find it more con- 
 venient to consider it under another head. Verbal threats 
 of personal violence are not, as such, a ground of civil ac- 
 tion at all; If a man is thereby put in reasonable bodily 
 fear he has his remedy, but not a civil one, namely, by 
 security of the peace. 
 
 Summary proceedings when a bar to civil action. 
 
 Where an, assault is complained of before justices under 
 24 & 25 Vicl. 0. 100, and the complaint has been dismissed 
 (after an actual hearing on the merits) (as), eithei: for want 
 of proof, or on the ground that the assault or battery was 
 " justified or so trifling as not to merit any punishment," 
 or the defendant has been convicted and paid the fine or 
 suffered the sentence, as the case may be, no further pro- 
 ceedings either civil or criminal can be taken in respect of 
 the same assault (y). 
 
 (a) Heed T. W« (1890) , 24 Q. B. D. 669, extends to bar actions by a husband or 
 
 69 L. J. Q. B. 311. master for conseqneutial damage: the 
 
 ()/) 24 & 25 Vict. 0. 100, SB. 42—45. Mas- words of the Act are " same cause," but 
 
 p^r V. JBrown (1876), 1 0. P. D. 97, decides they are ecjuivalent to " same assault " 
 
 that the Act Is not confined to suits In the earlier Act, 16 & 17 Vict. o. 30, s. 1, 
 
 strictly for the same cause of action, but repealed by 21 & 25 Vict. c. 95. 
 
 Menace distinguished from -assault. Where menace without assault 
 results in special damages it appears that it should be a ground of action 
 but it seems that this question has never arisen in the courts of the 
 United States except in so far as it relates to the menacing of tenants and 
 employes, and in this class of cases the English decisions have been 
 followed. See Dickson v. Dickson, 33 La. An. 1261 ; Carew v. Ruther- 
 ford, 106 Mass. 1 ; and see post, p. 216. It is certain that a menace is not 
 an assault. Johnson v. State, 85 Ala. 365 ; People v. Yslas, 27 Cal. 683. 
 
FALSH IMI'KISONMENT. 259 
 
 II. — False Imprisonment. " 
 
 False imprisonment. Freedom of the . person includes 
 immunity not only from the actual application of fprce, 
 but from every kind of detention and restraint not author- 
 ized by law. The infliction of such restraint is the wrong 
 of false imprisonment; which, though generally coupled 
 with assault, is nevertheless a distinct wrongs Laying on 
 of hands or otheu actual constraint of the body is not a 
 necessary element; and, if "stone walls do not a prison 
 mnke " for the hero or the poet, the law none the less takes 
 notice that there may be an effectual imprisonment with- 
 out walls of any kind. " Every confinepient of the person 
 is an imprisonment, whether it be in a common prison, or 
 in a private house, or in the stocks, or even by forcibly 
 detaining one in the public streets" (»). 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 de- 
 
 (~) Blackst. Oomm. 111. 127. from moving at all: tho assumption of 
 
 (a) fFamer y, Jliddiford, i O. B. N.S. control Is the main thing: Grainger Y. 
 180; even If he Is disabled by Blokneas Bill (1838), 4 Blng. N. 0. 212. 
 
 False Imprisonment. Several of the courts of the United States have 
 deflned the meatilDg of false imprisonment substantially as the text. A 
 very comprehensive statement of what constitutes this wrong is that of 
 the court in Come V. Knowles, (17 Kan. 440;, as follows: " False imprison- 
 ment is necessarily (a wrongful interference with the personal liberty of 
 an Individual. The wrong may Be committed by words alone, or by acts 
 alone, ot by both, and by merely operating on the will of the Individual 
 or by- personal violence, or by both. It is not necessary that the in- 
 dividual be confined within a prison, or within wails; or that he be 
 assaulted or even touched. It is not necessary that there should be any 
 injury done to the individual's person, or to his character, or reputation. 
 Nor is it necessary that the the, wrongful act be committed with malice, 
 or Ill-will, or with the slightest wrongful Intention. Nor is it necessary 
 that the act be under the color of any legal or judicial proceedings. 
 All that is necessary is, that the individual be restrained of his liberty 
 without any sufficient legal cause thereof, and by words or acts A^hloh he 
 fears to disregard." See State v. Lunsford, 81 N. C. 580;' Floyd v. State, 
 7 Eng. (Ark.) U; Moses v. Dubois, Dudley (S. C), 210; Brnshaber v. 
 
260 PERSONAL WRONGS. 
 
 tainer, however, must be such as to limit the party's 
 freedom of motion in all directions. It is not an imprison- 
 ment to obstruct a man's passage in one direction only. 
 
 Stegeman, 22 Micb. 269 ; Ahern v. Collins, 39 Mo. 1 51 ; Soreson v. Dun- 
 das,> 50 Wis. 335; McNay v. Stratton, 9 111. Ap. 215; Herring v. State, 3 
 Tex. App. 108; Fuller v. Bowker, 11 Mich. 204; Pilse v. Hanson, 9 N. H. 
 491; Mowry v. Chase, 100 Mass. 79; Haw v. Ridgway, 33 HI. 473; 
 Maloney v. Doane, 15 La. 278; 35 Am. Dec. 204. Fayson v. Macomber, 3 
 Allen, 69; Marshall v. Heller, 55 Wis. 492; French v. Bancroft, 1 Mete. 
 502; Bonesteel v. Bonesteel, 28 Wis. 245; Hill v. Taylor, 50 Mich. 549; 
 Doyle V. Doyle, 19 Kan. 168 ; Broo^ v. Stimpson, 108 Mass. 620 ; 11 Am. 
 Kep. 390; State v. Parker, 75 N. C. 249; 22 Am. Eep. 669; Smith v. State, 
 7 Humph. 44; Gold v. Bissell, 1 Wend. 210; 19 Am. Dec. 480; Manerc. 
 State, 8 Tex. App. 361. Manning v. Mitchell, 73 Ga. 664 ; Johnson v. Thomp- 
 son, 1 Baldw. 571; Moore v. Thompson, 92 Mich. 498; 52 N. W. Eep. 
 1000. The detention need not confine him in any particular spot. Haw- 
 kins ». State, 6 Tex. App. 452. An action for false imprisonment will lie 
 for the misuse or abuse of legal process after it has Issiied. Wood v. 
 Graves, 114 Mass. 366; Crowell v. Gleason, 10 Me. 325 ; Francisco v. State 
 24 N. J.L. 30; Sleight v. Levenworth, 5 Dner, 122; Lange v. Benedict, 73 
 N.T. 12. 
 
 '' Where a person was for about two weeks constantly gnarded by the 
 detectives of an express company without any warrant and all his move- 
 ments were under their control, and he was repeatedly urged to con- 
 fess a robbery, showing that he was regarded as a criminal and that force 
 would be used if necessary to detain him, it was held that he could main- 
 tain against the express company for false imprisonment. Fotherlng- 
 ham V. Adams Express Co., 36 Fed. Rep. 252. 
 
 So, where a person went to a bank on business, and remained after 
 the usual time of closing, which he knew, and the teller locked the door 
 and thereby detained him. Woodard v. Washburn. 3 Denio, 369. See 
 Hildebrande v. McCrum, 101 Ind. 61. 
 
 Where one was arrested without a warrant and detained five days 
 before being taken before a magistrate, although there was nothing to 
 prevent its being done, and at the .end of five days was discharged and 
 released without any legal proceedings whatever having been taken, it 
 was held that the time of detention was clearly unreasonable. Cochran 
 V. Toher, 14 Minn. 385. See Lavinia v. State, 63 Ga. 613. 
 
 So where a sherifE kept a prisoner lawfully arrested in jail for thirty 
 days before bringing him before a magistrate. Anderson ».Becfe, 64 Miss. 
 il3. A sheriff has no right to Imprison a party arrested without an order 
 from a judicial ofllcer unless on account of the lateness of the hour or 
 that such oflScer be inaccessible or for other cause it be necessary. 
 Hayes v. Mitchell, 69 Ala. 452. It was held not improper to confine a 
 
FALSE IMPKISONMENT. 261 
 
 " A prison may have its boundary large or narrow, invis- 
 ible or tangible, actual or real, or indeed in conception 
 only ; it may in itself be moveable or fixed ; but a bound- 
 ary it must have, and from that boundary the party im- 
 prisoned must be prevented from escaping ; he must be 
 prevented from leaving that place within the limit of which 
 the party imprisoned could be confined." Otherwise 
 every obstruction of the exercise of a right of way may be 
 treated as an imprisonment (5). A man is not imprisoned 
 who has an escape open to him (c); that is, we apprehend, f 
 
 (6) Bird v. Jones (1845), 7 Q. B. 742, 15 Patteson J. : " Imprisonment is a total 
 L. J. Q. B. 82, per Coleridge J. restraint of liberty of person." Lord 
 
 (c) Williams J.,ib. To the same effect Deuman C. J. dissented. 
 
 person in a room adjoining the court room until the magistrates disposed 
 of a case of trial and the complaint was prepared. Hopner v. McDowan, 
 116 N. Y. 405; 22 N. E. Eep. 668. 
 
 By recognizing, submitting to examination, and taking the pauper's 
 oath, an illegal arrest is not waived. Carleton v. Akron Sewer^Pipe Co., 
 126 Mass. 40. But an irregularity in process is waived by giving bail, 
 Nemltz V. Conrad, 22 Oreg. 164; 29 Pac. Bep. 548. 
 
 Where a person suing in an action for false imprisonment shows that 
 only a portion of the time of imprisonment was wrongful he may re- 
 cover. Bauer v. Clay, 8 Kan. 580. One who is arrested without reason, 
 and kept in defiance of offers to give bail and sue out a writ of habeas 
 corpus may maintain an action against all concerned. Manning v. 
 Mitchell, 73 Ga. 660. See Cargill v. State, 8 Tex. App. 431; Gibbs ». 
 Kandlett, 58 N. H. 407. 
 
 It is also established that one who participates in, or instigates or 
 encourages an unlawful arrest, Is liable, however pure his motives may 
 have been. Chisman o. Carney, 33 Ark. 816; Ruffner v. Williams, 3 W. 
 Va. 245; Frazier v. Turner, 76 Wis. 562; 45 N. W. Eep. 411. But it is 
 not false imprisonment to remand a prisoner brought on habeas corpus 
 issued by a judge who has no jurisdiction of such case. State v. Guest, 
 6 Ala. 778. Nor for an oflScer to retake "an escaped prisoner after Ms writ 
 hfis been returned. Strong v. Ives, 1 Boot, 388. Nor for the arrest of a 
 person who commits a breach of the peace in the exercise of a common 
 right. Taafe v. Kyne, 9 Mo. App. 15. Nor for the arrest of a person for 
 violating a void town ordinance. Trammell v. Eussellville, 34 Ark. 105; 
 36 Am. Rep. 1. See Wheeler v. Gavin, 6 Ohio Clr. Ct. Rep. 240; Brooks 
 V. Mangan, Mich. 576; 49 N. W. Bep. 633. Nor where a person under 
 lawful arrest, is at his own request confined in a jail other than that 
 specified by law. Ellis v. Cleveland, 54 Vt, 437. 
 
262 PERSONAL WRONGS. 
 
 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 inpracticable wall of rock, would in 
 law be a sufficient boundary, though peradventure npt 
 sufficient in fact to restrain an expert diver or moun- 
 taineer. So much as to what amounts to an imprison- 
 ment. 
 
 Justification of arrest and imprisonment. When an 
 action for false imprisonment is brought and defended, the 
 real question in dispute is mostly, though not always. 
 
 Justification of arrest and imprisonment. It is a doctrine sustained 
 by a long line of cases, that a ministerial officer, acting under process fair 
 upon its face and issuing from a tribunal or person with apparent juris- 
 diction to issue such process, is protected thereby in its execution against 
 all irregularities and illegalities except his own.. Clay v. Caperton, 1 T. 
 B. Mon. 10; 16 Am. Dec. 77; Clinton v. Nelson, 2 Utah, 284:; Savacool v. 
 Boughton, 5 Wend. 170; 21 Am. Dec. 181; Davis v. Wilson, 65111. 526; 
 Wilmarth v. Burt, 7 Mete. 257; Herzog v. Graham, 9 Lea, 152; Chase v. 
 Fish, 16 Me. 132; Repler v. Pents, 86 111. 275; Trammell o. Russelville., 
 34 Ark. 105; 36 Am. Eep. 1; Landt v. Hilts, 19 Barb. 283; Allisons. 
 Eheam, 3 Serg. & R. 139; 8 Am. Dec. 644; Neth v. Crofat, 30 Conn. 580; 
 Cleveland v. Rogers, 6 Wend. 438; Erskine v. Hohnback, 14 Wall. 613; 
 Bergin v. Hay ward, 102 Mass. 414; Keniston v. Little, 30 N. H. 318; Hill 
 V. Haynes, 54 N. Y. 153; Newbury v. Munshower, 29 Ohio St. 617; 23 Am. 
 Rep. 769; No well v. Tripp, 61 Me. 426; Sturbridge v. Winslow, 21 Pick. 
 83; Floyd v. State, 12 Ark. 43. See Coupal v. Ward, 106 Mass. 289; 
 - Joiner v. Ocean Steam Ship Co., 85 Ga. 238; 12'S. E. Eep. 361. 
 
 Any peace officer is -justified in arresting without process one who is 
 committing a breach of the peace in his presence, or he may, upon 
 reasonable suspicion, arrest a person charged with commission of a 
 felony, although the felony was not in fact committed.. Rohan v. Sawin, 
 5 Cush. 281; Eanes v. State, 6 Humph. 63; 44 Am. Dec. 289; Bryan ». 
 Bates, 15 111. 87; Taylor v. Strong, 3 Wend. 384; Quinn v. Heisel, 40 
 Mich. 576. In re Powers, 25 Vt. 261 ; McCarthy v. De Armit, 99 Pa. St. 
 63 ; Scircle v. Neeves, 47 Ind. 289 ; Doering v. State, 49 Id. 66 ; 19 Am. 
 Eep. 669; Neal v. Joyner, 89 N. C. 287; Malcolrason v. Scott, 56 Mich. 
 459. But see Shanley v. Wells, 71 111. 78; Newton v. Locklin, 77 111. 103; 
 Paw V. Beckner, 3 Ind. 475; Schneider v. McLane, 36 Barb. 495; Philips 
 V. Fadden, 126 Mass. 198; Moore v. Durgin, 68 Me. 148; Kennedys. 
 Favor, 14 Gray, 200; McLennon v. Richards, 15 Id. 74. 
 
 To justify the arrest by a private person without process of one sus- 
 pected of a felony, the proof must show that the felony had actually 
 
FALSE IMPRISONMENT. 263 
 
 whether the imprisonment was justified. One could not 
 aGcount for all possible justifications except by a full enu- 
 meration of all the causes for which one man may lawfully 
 put constraint on the person of another: an undertaking 
 not within our purpose in this work. We have considered, 
 under the head of General Exceptions (d), the principles 
 on which persons acting in the exercise of special duties 
 and authorities are entitled to absolute or qualified immun- 
 ity. With regard to the lawfulness of arrest and impris- 
 onment in particular, ithere 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 
 
 (d) Oh. IV. p. 97, above. Hist. Or. Law, 193 : and see Bogg v. Ward 
 
 (e) Stephen, Dig. Crlm. Proo. u. 12, 1 (1858), 3 H. & N. 417, 27 L. J. Ex. 443. 
 
 been committed, and that the one causing the arrest had reasonable 
 ground for believing the one arrested guilty. As is said in the case of 
 Burns v. Erben (40 N. Y. 466), " but if an innocent person be arrested 
 upon suspicion by a private individual, such individual is not excused 
 unless such offence has, in fact, been committed, and there was reason- 
 able ground to suspect the person arrested.V See Wakely v. Hart, 6 
 Binn. 316; Commonwealth v. Deacon, 8 Serg. & E. 49; Eenck v. 
 McGregor, 32 N. J. L. 70; Allen v Lonard, 28 la. 529; Morley ». Chase, 
 143 Mass. 396; Holley v. Mix, 3 Wend. 350; 20 Am. Dec. 703; Mandeville 
 V. Guernsey, 51 Id. 99; 50 N. Y. 669; Guernsey v. Lowell, 9 Wend. 320. 
 
 Threats made by a person under arrest justify an officer in putting 
 him in irons. Cochran v. Toher, 14 Minn. 385. 
 
 An evidence of threats was held admissible as bearing on the question 
 of the propriety of the force used by the o^cer. Fulton v. Statts, 41 N. 
 Y. 498. Same point on arrest by private citizen. Lander v. Miles, 3 Oreg. 
 35. But see Hackett v. Lawrence, 7 Abb. Pr. (N. S.) 403. See ante, pp. 
 141, 142. 
 
 Advice by counsel, though followed in good faith and under and by 
 virtue of which an alleged false imprisonment took place will not be a 
 jnstiflcation. Josselyn v. McAllister, 22 Mich. 300. See Fire Assn. v. 
 Fleming, 78 Ga. 733; 3 S. B. Rep. 420, And the inexperience of the 
 attorney giving such advice will not justify the arrest, but may be shown 
 in mitigation of damages. Mortimer v. Tliomas, 23 La. Ann. 165, As to 
 how far the attorney is liable, see Tenney v. Harvey, 63 Vt. 520; 32 At. 
 Bep. 659. 
 
264 PERSONAL WKONGS. 
 
 been committed, whereas a private person so arresting, or 
 causing to be arrested, an alleged offender, must show not 
 only that he had reasonable grounds of suspicion but that 
 a felony had actually been committed (/). The modern 
 policeman is a statutory constable haying all the powers 
 which a constable has by the common law (g), and special 
 statutory powers for dealing with various particular 
 offences (A). 
 
 Who is answerable. Every one is answerable for 
 specifically directing the arrest or imprisonment of an- 
 other, as for any other act that he specifically com- 
 mands or ratifies ; and a superior officer who finds a 
 
 (/) This applies only to ielony: "the As to the common law powers ol con- 
 
 ' law [i. e., common law] does not excuse stables and others to arrestfor preseiva- 
 
 constables for arresting persons on the tion of the peace, which seem not free 
 
 reasonable belief that they have com- from donbt, see Timothy v. Simpson 
 
 mitted a misdemeanor : " see OHffln v. (1835), 1 C. M. & E. 767, Bigelow L. O. 257, 
 
 Coleman (1859) .iU.&N. 266, 28 L. J. Ex. per Parke B. 
 134. (ft) Bigelow L. 0. 200. 
 
 (^) Stephen, 1 Hist. Or. Law, 197, 199. 
 
 Who is answerable. Supporting the statement of the text, vide Mc- 
 Queen V. Heck, 1 Coldw. 212; Chrisinan v. Carney, 33 Ark. 33; Bailey v. 
 Wiggins, 1 Houst. 299; Hays e.Creary, 60 Tex. 445; Kafierty v. Peoples, 
 69 HI. Ill; 18 Am. Kep. 601; Pierce ■». Hubbard, 10 Johns. 405; Frazier 
 V. Turner, 76 Wis. 562 ; 45 N. W. Kep. 411 ; Gelzenlenchter v. Neimeyer, 
 64 Wis. 316; B4 Am. Kep. 616; Peoples v. Smith, 20 Johns. 63; Lewis v. 
 Avery, 8 Vt. 287; Grumon v. Kaymond, 1 Conn. 39; Grace v. Teagne, 81 
 Me. 559; 18 At. Rep. 89; De Courcy v. Cox, 94 Cal. 665; 30 Pac. Rep. 95; 
 GlUingham o. Ohio Elver K. Co., 35 N. C. 588; 14 S. E. Kep. 243; Touhey 
 V. King, 9 Lea, 422; Tracy v. Williams, 4 Conn. 107; Wilson v. Kobinson, 
 6 How. Pr. 110; Cnrry ». Pringle, 11 Johns. 444; Green v. Ramsey, 2 
 Wend. 611; Dietrichs v. Schaw, 43 Ind. 175; Hauss ?;. Eohlar, 25 Kan. 
 640; Gorton v. Frizzell, 20 111. 292; Von Kettler v. Johnson, 57 Id. 109; 
 Johnson v. Von Kettler, 66 Id. 63; Barhydt v. Valk, 12 Wend. 145; 27 
 Am. Dec. 124; Abbott v. Booth, 51 Barb. 646; Harwood v. Siphers, 70 
 Me. 464; Stoyel v. Lawrence, 3 Day, 1 ; Peck v. Rooks, 22 Ark. 221 ; Gru- 
 mon V. Raymond, 1 Conn. 40; Sheldon v. Hill, 33 Mich. 171; Fisher ». 
 Langbein, 62 How, Pr. 238; Gold v. Bissell, 1 Wend. 210; 19 Am. Dec. 
 480; Langford «. Boston & A. R. Co., 144 Mass. 431; 11 N. B. Rep. 697. 
 
 " A -person who procures an illegal arrest to be made is liable in tres- 
 pass for false Imprisonment, though not aiding and abetting." Clifton 
 
FALSE IMPRISONMENT. 265 
 
 person taken into custody by a constable under his orders, 
 and then continues the custody, is liable to an action if the 
 original arrest was unlawful (^). Nor does it matter 
 
 (») Griffin v. Coleman, note (/) last page. 
 
 V. Grayson, 2 Stew. 412; Stovel B.Lawrence, 3 Day, 1; Stoddard v. Bird, 
 Kirby, 65; Bnrllngtiand ■». Wylee, 2 Root, 151; Pierson v. Gale, 8 Vt. 609; 
 Gilbert v. Emmons, 42 111. 143; Taylors. Trask, 7 Cow. 249; Snydacker 
 V. Brosse, 51 111. 357;,Poulk v. Slocum, 3 Blackf. 421 ; Miller v. Adams, 62 
 N. Y. 409; Harwood^o. Siphers, 70 Me. 464; Gelzenlenchter v. Neimeyer, 
 64 Miss. 316; 64 Am. Bep. 616; Hackett v. King, 6 Allen, 58; Chapman v. 
 Dyett, 11 Wend. 31; 26 Am. Dec. 598; Vredenburgh v. Hendricks, 17 
 Barb. 179; Emery «. Hapgood, 7 Gray, 55; Letzler v. Huntington, 24 
 La. An. 330; Thorpe v. Wray, 68 Ga. 359; Luddington v. Peck, 2 Conn. 
 700. I 
 
 A person who by acts approves a wrongful arrest is liable therefor. 
 "Webber v. Kenny, 1 A. K. Marsh. (Ky.) 845. See Hollock v. Dominey, 7 
 Hun, 52 ; Clifton v. Grayson, 2 Stew. 412. Where the facts have been 
 passed upon by the judge making an order foiv arrest the plaintiff cannot 
 be held responsible. Finley v. St. Louis Befrigerator Co., 99 Mo. 659; 
 13 S. W. Hep 87 ; Dusy v. Helm, ,59 Cal. 188. 
 
 Nor can one who merely directs the attention of a policeman to an- 
 other who is thereupon arrested. Veneman v. Jones, 118 Ind. 41; 20 N. 
 E. Bep. 644. But see McCarrahan ». Lavers, 16 R. I. 302; 3 At. Bep. 592; 
 Maliniemi v. Gronlund, 92 Mich. 22; 52 N. W. Bep. 627. 
 
 A mere observer where a person is forced to sign a " lie bill " held not 
 liable. Walker v. State, 26 Tex. App. 443; 8 S. W. Rep. 547. 
 
 For cases on the liability of corporations for false imprisonment and 
 malicious prosecution, see ante, p. 68. 
 
 False imprisonment and malicious prosecution distinguished. In an action 
 for false imprisonment, the gist of the action is an unlawful deten- 
 tion, while in an action for malicious prosecution more is necessary. 
 In Turpin v. Remy (3 Black. 210), It was said by Stevens J., in deliver- 
 ing the opinion of the court: " An action for a malicious prosecution 
 can only be supported for the malicious prosecution of some legal pro- 
 ceeding, before some judicial officer or tribunal. If the proceedings 
 commenced are extra-judicial, the remedy is trespass, and not an action 
 on the case for malicious prosecution. No proof of malice or want of 
 probable cause is necessary to make out a case for false imprisonment." 
 Coulter V. Lower, 36 Ind. 287; 9 Am. Bep. 735. See Painters. Ives, 4 
 Neb. 122; Baird v. Householder, 32 Pa. St. 168; Murphy v. Martin, 58 
 Wis. 278 ; Brown v. Chadsey, 39 Barb. 262 ; Atkins v. Newell, 32 Ark. 607 ; 
 Bauer v. Clay, 8 Kan. 584; Hewitt v. Newburger, 66 Hun, 230; 20 N. Y. 
 S. Bep. 913; Johnson v. Bouton, 35 Neb. 898; 53 N. W. Bep. 913; Hobbs 
 V. Ray (fi. I.), 25 At. Bep. 694. 
 
266 PEKSONAL WRONGS. 
 
 whether he acts in his own interest or another's (/). But 
 one is not answerable for acts done upon his information 
 or suggestion by an officer of the law, if they are done not 
 as merely ministerial acts, but in the exercise of the officer's 
 proper authority or discretion. Kather 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 " (k) with regard to the em- 
 ployer's responsibilijty is in some measure analogous. A 
 paidy who sets the law in motion without making its act 
 his own is not necessarily free from liability. He may be 
 liable for malicious prosecution (of which hereafter) (?) ; 
 but he cannot be sued for false imprisonment, or in a 
 court which has not jurisdiction over cases of malicious 
 prosecution. "The distinction between false ■ imprison- 
 ment and malicious prosecution is well illustrated by the 
 case where, parties being before "a magistrate, one makes a 
 charge against another, whereupon the magistrate orders 
 the person charged to be taken into custody and detained 
 until the matter can be investigated. The party making 
 the charge is not liable to an action for false imprison- 
 ment, because he does not set a ministerial officer in motion, 
 but a judicial officer. The opinion and the judgment of a 
 judical officer are interposed between the charge and the 
 imprisonment" (»i). Where an officer has taken a sup- 
 posed offender into custody of his own motion, a person 
 who at his request signs the charge-sheet does not thereby 
 make the apt his own (n), any more than one who certifies 
 
 ( j ) Baker v. Braham (1773), 2 W. Bl. nor does an action for malloious prpse- 
 
 866 (attorney sning out arid procaring cntion lies where the judicial officer has 
 
 execution of void process). held on a true statement of the facts 
 
 (A) Pp. 72, 73, above. that there is reasonable cause: Hopey. 
 
 (0 See Mtzjolm v. MaaUnder (1881), Evered (1S86), 17 Q. B. D. 338, 55 L. J. M. 
 
 Ex. Oh. 1861, 9 0. B. N. 8. 505, 30 L. J. C. 0. 146 ; Lea t. Charrington (1889), 23 Q. B. 
 
 P. 257. Div. 45, 273, 68 L. J. Q. B. 461. 
 
 (m) Willes J., Austin v. Doviling (1870), (») Grinham 7. WiUey (18B9), 4 H. & N, 
 
 L. E. 6 C. P. at p. 540 ; West v. Smallwood 496. 28 L. J. Ex. 242. 
 (1838), 3 M. & W. 418 ; BIgelow L. C. 237 ; 
 
FALSE IMPRISONMENT. 267 
 
 work done under a contract thereby makes the contractor 
 his servant. But whete an officer consents to take a per- 
 son into custody only upon a charge being distinctly made 
 by the complainant, and the charge-sheet signed by him, 
 there the person signing the charge-sheet must answer for 
 the imprisonment as well as the officer (o). 
 
 Again, where a man is given into custody on a mistaken 
 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). 
 
 Reasonable and probable cause. What is reasonable 
 cause of suspicion to justify arrest may be said, paradoxical 
 as the statement looks, to be neither a question of law nor 
 of fact, at any rate in the common sense of the terms. 
 Not of fact, because it is for the judge and not for the 
 
 (o) Austin V. Dowling (1S70), L. E. 5 C. 39 L. J. Q. B. Ii4. One cage often cited, 
 
 P. 534, 39 L. J. 0. P. 260. Other Ulnatra,- Flewster v. lioi/le (1808, Lord EUenbor- 
 
 tions may be fonnd in Addison on Torts, ongli), 1 Camp. 187, is of doubtful author- 
 
 Stli ed. 130, 131. As to the protection of Ity ; see Gosden v. ElpMck (1849), 4 Ex. 
 
 parties issuing an execution in regular 445, 19 L. J. Ex. 9 ; and Grmham v. Willei/, 
 
 course, though the judgment is after- above. 
 
 wards set aside on other grounds, see (p) Lock t. Ashton (1S48), 12 Q. B. 871, 
 
 Smith V. Sydney (1870), L. E. 5 Q. B. 203, 18 L. J. Q. B. 76. 
 
 Beasonable and probable cause. It is a general rule that In an action 
 for false imprisonment, the plaintiff need prove neither malice nor want 
 of probable eause. Boaz v. Tate, i3 Ind. 60; Adkin v. Kewell, 32 Ark, 
 606; Boeger v. Langberg, 97 Mo. 390; 11 S. W. Rep. 223; Kosen «. Stein, 
 7N. Y. S. 368. See Clow v. Wright, Brayt. 118; Krebs v. Thomas, 12 
 m. App. 266; Neal v. Hart, 115 Pa. St. 347; 8 At. Rep. 628; Firestone v. 
 Rice, 71 Mich. 377; 38 N. "W. Rep. 885; Olmstead v. Doland, 6 N. Y. S. 
 130; Mitchell v. Malone, 77 Ga, 301. 
 
 Evidence that the defendant acted without malice, or want of probable 
 eause, may always be admitted to mitigate exemplary damages, but not 
 to diminish actual damages. Livingston v. Burroughs, 33 Mich. 611; 
 Comer v. Knowles, 17 Kan. 436 ; Sleight v. Ogle, 4 E. D. Smith, 446 ; 
 Miller v. Grice, 2 Rich. L. 27; 44 -Am. Dec. 271 ; McDaniel v. Needham, 
 61 Tex. 269; Rogers v. Wilson, Minor, 407; Hill v. Taylor, 60 Mich. 
 649 ; Roth v. Smith, 41 111. 314. 
 
268 PERS01?AL WRONGS. 
 
 jury {q); not of law, because «'no definite rule can be 
 laid down for the exercise of the judge's judgment " (r). 
 It is a matter of judicial discretion such as is familiar 
 enough 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 o^ 
 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 judidial 
 authority (s). The truth seems to be that the question was 
 formerly held to be one of law and has for some time been 
 tending to become one of fact', but the change has never 
 been formally recognized. The only thing which can be cer- 
 tainly aflSrmed in generatterms about the meaning of " rea- 
 sonable cause " in this connexion is that on the one hand 
 a belief honestly entertained is not of itself enough (<); 
 on the other hand, a man is not bound to wait until he is 
 in possession of such evidence as would be admissible and 
 sufficient for prosecuting the offence to conviction, or even 
 of the best evidence which he might obtain by further in- 
 quiry. •' It does not follow that because it would be very 
 reasonable to make further inquiry, it is not reasonable to 
 act without doing so " (u). It is obvious, also, that the 
 existence br ndn-existence of reasonable cause must be 
 judged, not by the event, but by the party's means of 
 knowledge at the time. 
 
 Although the judge ought not to leave the whole ques- 
 
 (g) ffojics V. Jlfari«(1861),7H. &N. 66, («) BrmigJOon, y. Jachaon (1852), 18 Q. 
 
 30 L. J. Ex. 389. B. 378, 21 L. J. Q. B. 266 : the Metendant 
 
 (r) IMer v. Ferryman (1870), L. R. i H. must Bhow " facta which woald create a 
 
 iL. 621, 635, per Lord Chelmsford. So reasonable suspicion in the mind of a 
 
 per Lord Oolonsay at p. 510. reasonable man,)! per Lord Campbell 
 
 (s) Lord Campbell in Brtughton v. C. J. , 
 
 Jachaon (1852), IS Q. B. 378, 313, 21 L. J. (o) Bramwell B., Perrymam v. JAster 
 
 Q. B. 266; Lord Hatherley, Jord West- (1868), L. E. 3 Ex. at p. 202, approved by 
 
 bury, and Lord Colonsay (ill familiar Lord Hatherley, S. C. nom. Litter T. 
 
 with procedure in which there was no Ferryman, L.;e. 1 H, L. at p. 633. 
 
 jury at all) in Lister v. Ferryman, L. E. ' 
 i H. L. 531, 538, 539. 
 
/ 
 
 REASONABLE CAUSE FOR ARREST. 2(3 
 
 tion of reasonable cause to the jury, there seems to be n 
 objection to his asking the jury, as separate questions 
 whetljer the defendant acted on an honest belief, an 
 whether he used reasonable care to inform himself of th 
 facts (x). 
 
 III. — Injuries in Family Relations. 
 
 Protection of personal relations. Next to the sanctit; 
 of the person comes that of the personal relations consti 
 tuting the family. Depriving a husband of the society o 
 his wife, a parent of the companionship and confidence o 
 his children, is not less a personal injury, though a les 
 tangible one, than beating or imprisonment. The sam 
 may to some extent be said of the relation of maste 
 and servant, which in modern law is created by contract 
 but is still regarded for some purposes as belonging to th 
 permanent organism of the family, and having the nature o 
 status. It seems natural enough thatan action should lie a 
 the suit of the head of a household for enticing away a persoi 
 who is under his lawful authority, be it wife, child or ser 
 vant; there may be difficulty in fixing the boundary wher 
 the sphere of domestic relations ends and that of puj 
 contract begins, but that is a difficulty of degree. Tha 
 the same rule should extend to any wrong done to a wife 
 child, or servant, and followed as a proximate consequenc 
 by loss of their society or service, is equally to be expect 
 ed. Then, if seduction in its ordinary sense of physica 
 and moral corruption is part of the wrong-doer's conduct 
 it is quite in accordance with principles admitted in othe 
 parts of the law that this should be a recognized ground fo 
 awarding exemplary damages. It is equally plain that oi 
 general principle a daughter or servant can herself havi 
 no civil remedy against the seducer, though the parent o 
 master may ; no civil remedy, we say, for other remedie 
 
 (a:) H. Stephen on Malioione Prosecution, ch. 
 
270 PERSONAL WRONGS. 
 
 have existed and exist. She cannot complain of that which 
 took place by her own consent. Any different rule would 
 be an anomaly. Positive legislation might introduce it on 
 grounds of moral expediency; the courts, which have the 
 power and the duty of applying known principles to new 
 cases, but cannot abrogate or modify the principles them- 
 selves, are unable to take any such step. 
 
 Historical accidents of the common law herein. There 
 seems, in short, no reason why this class of wrongs should 
 not be treated by the common law in a fairly simple and 
 rational manner, and with results generally not much unlike 
 those we actually find, -only free from the anomalies and 
 injustice which flow from disguising real analogies under 
 transparent but cumbrous fictions. But as matter of 
 history ( and pretty modern history) the development of 
 the law has been strangely halting and one-sided. Starting 
 from the particular case of a hired servant, the authorities 
 have dealt with other relations, not by openly treating them 
 as analogous in principle, but by importing into them the • 
 fiction of actual service j^ with the result that in the class 
 of cases most prominent in modern practice, namely, actions 
 brought by a parent (or person in Joco 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 " (y). 
 
 Trespass for taking away wife, etc., and per quod 
 servitium amisit. The common law provided a remedy by 
 writ of trespass for the actual taking away of a Vvife, ser- 
 vant, or heir, and perhaps younger child also (z). An 
 
 (.y) Christian's note on Blackstone Coram, ill. 139. The writ was de uxore 
 
 ill. 142 Is still not amiss, thongh the abducta cum bonis viri sui, or an ordinary 
 
 amendments of this century In the law writ of trespass (F. N. B. 52 K) ; a case 
 
 of evidence have removed some of the as late as the Restoration is mentioned In 
 
 grievances mentioned. Bao. Abr. v. 328 (Ed. 1832). 
 
 (2) F. N. B. 89 O, 90 H, 91 I ; Blackst. 
 
LOSS OF SERVICE. 271 
 
 action of trespass also lay for wrongs done to the plaintiff's 
 wife or servant (not to a child as such), whereby he lost 
 the society of the former or the services of the latter. 
 
 Injuries to wile or servant. A master has a right of action for an 
 assault or an assault and battery, upon his servant, where some loss of 
 service or capacity to serve results therefrom. Flunker ». Georgia Eail- 
 road & Banljing Co., 81 Ga. 461; 8 S. E. Rep. 529; Knight v. Wilcox, 14 
 N. Y. 413. See Schouler's Dom. Bel. pp., 631, 632. 
 
 A master may sue for an injury to his apprentice causing disability, 
 per quod servitum amisit, although the act was la violation of a contract 
 made with the apprentice. Ames v. Union E. Co., 117 Mass. 541. 
 
 A father may maintain an action for harboring and secreting his 
 minor daughter, and persuading her to remain absent from his family 
 and service without his consent. Stowe v. Heywood, 7 Allen, 118. 
 
 The services and earnings of a married woman belong to her husband. 
 Kat. Bk. of Metropolis v. Sprague, 20 N. J. Eq. 18; Bowden v. Grey, 49 
 Mass. 647; Yopst w. Yopst, 51 Ind. 61; Reynold v. Robinson, 64 N. Y. 
 589; Shaefer v. Sheppard, 54 Ala. 244; Bolman v. Overall, 80 Ala. 451; 
 2 So. Bep. 624; Uransky u. Drydock, E. B. & B. R. Co., 118 N. Y. 
 So4; 23 N. E. Rep. 451; Porter v, Dunn, 131 N. Y. 314; 30 N. E. Eep. 
 122. So, therefore, for an injury to his wife, resulting in the loss of her 
 services, the husband may recover damages. Kavanaugh v. Janesvllle, 
 24 Wis. 618; Barnes v. Alien, 1 Abb. App. Bee. Ill; Phillppi v. Wolf, 
 14 Abb. Pr. (N. S.), 196; Sloan v. New York Central B. Co., 4 Thomp. 
 & Co. 136; Hun, 540; McWhirter v. Hatten, 42 la. 288; Meeso v. 
 Fond du Lac, 48 Wis. 323; City of Wyandotte v. Agan, 37 Kan, 528; 15 
 Pac. Rep. 529; Maine o. City of Rich Hill, 28 Mo. App, 497; Blair o. 
 Chicago & A. By. Co., 89 Mo. 334; 1 S. W. Rep. 367; Scogland v. Min- 
 neapolis St. By. Co., 45 Minn. 530; 47 N. W.'Bep. 1071. 
 
 A distinction is drawn in the case of Brooks v. Schuverin, (54 N. Y. 
 343), between where the wife performs household services and where she 
 works for another, the court holding that in the latter case she alone can 
 recover for an injury disabling her from performing such service. See 
 Tuttles V. Chicago, E. I. etc. B. Co., 42 la. 518; Newmeister v. 
 Dubuque, 47 la. 465; Carr v. Easton, 7 Penn. Co. Rep. 403. 
 
 Taking away of wife. " It is a common law rule, that' a husband may 
 maintain an action for enticing away his wife and separating her from 
 him, whereby he loses her services and society." Hutcheson v. Peck, 
 5 Johns. 196, followed in Wood v. Mathews, 47 la. 410; Turner v. 
 Bstes, 3 Mass. 316; Barbee v. Armistead, 10 Ired. 530; 51 Am. Dec. 404; 
 Tasker v. Stanley (Mass.). 26 N. E. Rep. 617; White v. Boss, 47 Mich. 
 172. 
 
 " It is well settled that a husband may maintain an action for enticing 
 away his wife, or enticing her to live apart from him, and this, whether 
 the wrong-doer be the father of the wife or any other person. But merely 
 
272 PERSONAL WRONGS. 
 
 The language of pleading was per quod consortium, or 
 servitium amisit. Such a cause of action was quite distinct 
 from that which the husband might acquire in right of the 
 wifej or the servant in his own right. The trespass is one, 
 but the remedies are " diversis respectibus " (a). " If my 
 servant is beat, the master shall hot have an action for this 
 battery, unless the battery is so great that by reason 
 thereof he loses the service of his servant, but the servant 
 himself for every small battery shall have an action ; and 
 the reason of this difference is that the master has not any 
 damage by the personal beating of his servant', but by rea- 
 
 k 
 
 (a) T. B. 19 Hen. VI. i5, pi. 94. 
 
 allowing the wife to come and remain in his house, by a stranger, and 
 much less, her father, from good motives, will not give the husband a 
 right of action. Something further tending to prevent or-dissuade the 
 wife from living with her husband is necessary." Bennett v. Smith, 21 
 Barb. 439. 
 
 Where one voluntarily interferes with the relations of husband and 
 wife, even though the relations have been so violent that a divorce 
 would be granted if sued 'for, he does so at his peril. "The 
 wife may have a just cause for separation or divorce, but she may 
 elect to abide by her situation, and remain with her husband never- 
 theless. If she chooses to do so, no stranger has a right to intermeddle 
 with the domestic and marital relation of the husband and wife and it 
 he voluntarily does so he is amenable for the consequences." Mosisett 
 V. McPide, 47 Mo. 646. See Schouler's Dora. Eel., pp. 57, 58; Rulbe v. 
 Hauna, 6 Ohio, 530; Campbell «;. Carter, 3 Daly, 165; Smith v. Lyke, 20 
 N. Y. Supreme Ct. 204; Perry v. Lovejoy, 49 Mich. 529. 
 
 Taking away of husband At common law a wife could not maintain 
 an action for, the enticing away and harboring of her husband, but in 
 some of the States statutes have conferred upon her this right. See Van 
 Arnam v. Ayres, 67 Barb. 544; Reeder v. Purdy, 41 III. 279, 282; Michigan 
 V. Coleman, 28 Mich. 440; Duffles v. Duffles, 76 Wis. 374; 45 N. Y. Eep. 
 523. However, the authorities are not uniform on this point, and the 
 common law doctrine is criticized in Westlake v. Westlake, 34 Ohio St. 
 621. See Bennett i;. Bennett, 116 N.Y. 584; 28 N. B. Eep. 117; Wolf v. 
 Wolf, 130 Ind. 599 ; 30 N. E. Rep. 308 ; Haynes v. Nowlin, 129 Ind. 581 ; 
 9 N. B. Eep. 289, annulling Logan v. Logan, 77 Ind. 588; Warren v. War- 
 ren, 89 Mich. 123; 50 N. W. Rep. 842; Waldronw. Waldron, 46 Fed. Eep. 
 315; Huling v. Huling, 32 111. App. 519; and cases collected in St' Cent. 
 ]jaw J. 29 n. 
 
CRIMINAL CONVEBSATION. 273 
 
 son of a per quod, viz., per quod servitium, eic.,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 lose the service of his servant, he shall 
 not have an action" (6). 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 
 f&r any time of the company and assistance of his wife " 
 (c). 
 
 " Criminal conversation." Against an adulterer the 
 husband had an action at common law, commonly known 
 as an action of criminal conversation. In form it was 
 
 (6) Eohert Mary^s case, 9 Co. Bep. Bramwell B.). It is submitted that the 
 
 113a. It is held in Osbomy. Gillett (1873), decision is wrong, and Lord Bramwell's 
 
 li. R. 8 Ex. 88, 42 L. J. £x. 53, that a mas- dissenting judgment right. See pp. S7— 
 
 ter shall sot have an action fox a tres- 59, above, 
 
 pass whereby his servant is kiUed (.diss, (c) Blackst. Comm. ill. UO. 
 
 Criminal conversatipn. A husband has a right of action, either in 
 trespassVor on the case^ against any one who commits adultery with his 
 wife. Peters v. Lake, 66 111. 206; Coleman o. White, 59 Ind. 648; Hadlek 
 V. Heywood, 121 Mass. 236; Johnston v. Disbrpw, 47 Mich. 59; "Van 
 Vacter v. McBallip, 7 Blackf. 578; Barnes v. Allen, 30 Barb. 663. 
 
 " The action of trespass -and case are concurrent remedies for this 
 injury. And Cbitty, in his work on pleadings, says that though it had 
 been usual to sue in case, it is considered preferable to declare in tres- 
 pass. But in either form of action, loss of services may be averred in 
 aggravation of damages. And being averred, a failure to prove actual 
 loss of services would not defeat a right of recovery." Tundt v. Hart- 
 rnnft, 41 lU. 17. In the same case the court said: "This action does 
 not proceed upon the theory of the loss of services of the wife. It is 
 for the injury the husband sustains by the dishonor of his bed; the 
 alienation of his wife's affections; the destruction of his domestic com- 
 fort, and the suspicion cast upon the legitimacy of her offspring. * » * 
 When loss of service is claimed, damages would not be given therefor 
 unless it is proved." With reference to this action the husband's inter- 
 est Is expressed by the word consortium, "the right to the conjugal 
 fellowship of the wife, to her company, co-operation and in every con- 
 jugal relation. * * * The loss of the comsortfem is presumed, although 
 the wife may have herself been the seducer, or may not have been living 
 
 18 
 
274 PERSOJfAL WKONG8. 
 
 generally trespass vi et armis, on the theory that " a wife 
 is not, as regards her husband, a free agent or separate 
 •person " (d), and therefore her consent was immaterial, 
 and the husband might sue the adulterer as he might have 
 sued any mere trespasser who beat, imprisoned, or carried 
 away his wife against her will. Actions for criminal con- 
 versation were abolished in England on the establishment 
 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 (e). 
 
 In practice these actions were always or almost always 
 
 (d) Coleridge J. In Immleg t. Qye ered to be rather case than trespass': 
 
 (1853), 22 L. J. Q. B. at p. 478. Case Macfadeen v. Olivant (1805), 6 East, 387. 
 
 would also lie, and the common form of See note (/) next page. ' 
 
 declaration was for some time consid- (e) 20 & 21 Vict. c. 86, ss. 33, 59. 
 
 with the husband. A husband who is living apart from his wife, if he 
 has not removed his marital rights, can maintain an action, and it is not 
 necessary for him to prove alienation of the wife's affection,, or actual 
 loss of her society and assistance." Bigaoutte v. Faulet, 131 Mass. 123. 
 See Philllpl v. Wolf, 14 Abb. Pr. (N. S.) 196; Adams ?;. Main, 3 Ind. App. 
 232; 29 N.E. Rep. 792. 
 
 A husband may sue for criminal intercourse with his wife though he 
 is separated from her, and before the commencement of the action she 
 had obtained a divorce. Michel u. Dankle, 84 Ind. 544. See "Wood v. 
 Mathews, 47 la. 409; Sherwood «;. Titman, 55 Pa. St. 77. 
 
 And the action is not defeated by the death of the wife before the- suit 
 is brought. Cox v, Whitfield, 18 Ala. 738 ; Garrison v. Burden, 40 Ala. 
 515. 
 
 But the husband cannot maintain an action for adultery with his Wife 
 where he voluntarily agrees to it and does separate from her. Fry v. 
 Derstler, 2 Yeates, 278. See Schorn ». Berry, 68 Hun, 110 ; 17 N. Y. S. Rep. 
 572; Cook V. "Wood, 30 Ga. 891; Sherwood v. Titman, 56 Pa. St. 77. 
 
 Negligence of the husband in preventing criminal conversation with 
 his wife, not amounting to a consent, may be shown in reduction of 
 damages. Bunnell v. Greathead, 49 Barb. 106. 
 
 The fact that a husband cohabits with his wife, after knowledge of 
 her adultery, is not a bar to the action of criminal conversation by him 
 against her paramour. "Verholf «. Van Houwenlengen, 21 la. 429. See 
 Clouser v. Clapper, 59 Ind. 548. 
 
 Punitive damages may be recovered. Williams and Green, JJ., dis- 
 senting, Cornelius v. Hambey, 50 Pa. 359; 24 At. Rep. 515; Sturam v. 
 Hummel, 39 la. 478; Peters v. Lake, 66 111. 206. 
 
ENTICING AWAY SERVANTS. 275 
 
 instituted with a view to obtaining a divorce by private Act 
 of Parliament; the rules of the House of Lords (in which 
 alone such Bills were brought in) requiring the applicant 
 to have obtained both the verdict of a jury in an action, 
 and a sentence of separation a mensa et toro in the Eccle- 
 siastical Court. 
 
 Enticing away servants. An action also lay for enticing 
 away a servant (that is, procuring him or her to depart 
 voluntarily from the master's service), and also for know- 
 ingly harbouring a servant during breach of service; 
 whether by the common law, or only after and by virtue of 
 the Statute of Labourers (/"), is doubtful. Quite modern 
 examples are not "vyanting {g). 
 
 Much later the experiment was tried with success of a 
 husband bringing a like action " against such as persuade 
 
 (/) 23 Bdw. III. (A. D. 1349): this 476,482. For a time it seemed the better 
 statute, passed in consequence of the oplplon, however, that trepass was the 
 Black Death, marks a great crisis in the only proper form : ihid., Ditcham v. Bond 
 history of English agriculture and land (1814), 2 M. & S. 436. It was formally 
 tenure. As to its bearing on the matter decided as lat^ as 1839 (without giving 
 In hand, see the dissenting judgment of any other reason than the constant 
 Coleridge J. in iMmUy v. Gye (1853), 2 E. practice) that trespass or case might be 
 &B. 216,221i. J. Q. B.463, 480. The action used at the pleader's option: Chamber- 
 was generally on the case, but It might lam v. Hazelwood (1839) , 5 M. & W. 515, 9 
 be trespass: e. g., TuUidge v. Wade L. J. Ex. 87. The only conclusion which 
 (1769), 3 Wils. 18, an action for seducing can or need at this day be drawn from 
 the plaintiff's daughter, where the such fluctuations is that the old system 
 declaration was in trespass vi et armis. of pleading did not succeed in its pro- 
 How this can be accounted for on prin- f essed object of maintaining clear logical 
 clple I know not, short of regarding the distinctions between different causes of 
 servant as a quasi chattel ; the difficulty action. 
 
 was felt by sir James Mansfield, Wood- (g (.Bartleyv. Cammings (lSil),SG. B. 
 
 ward v. W<aton (1807), 2 B. & P. N. E. 247, 17 L. J. 0. P. 84. 
 
 Bnticing away servants. It is an actionable wrong to wilfully entice 
 from the service of another one who is in his employment under a con- 
 tract not fully executed. Haight v. Badgeley, 15 Barb. 499; Milburne v. 
 Byrne, 1 Cranch C. Ct. 239; Butterfleld v. Ashley, 2 Gray, 254; Scidmore 
 V. Smith, 13 Johns. 322; Bixby v. Dunlap, 66 N. H. 556; HufE v. Watlfins, 
 13 S. C. 82; 40Am.Kep. 680; Sherwood v. Hall, 3 Sumn. 127; Plummer 
 V. Webb, 4 Mason, 380 ; Peter v. Blocker, 48 Ga. 331 ; Carew v. Ruther- 
 ford, 106 Mass. 1; Noice v. Brown, 39 N. J. L. 569; Hudson ii. State, 46 
 Ga. 624; Lee v. West, 47 Ga. 311; Walker v. Cronin, 107 Mass. 655; 
 
276 PERSONAL WEONGS. 
 
 knd entice the wife to live separate from him without a 
 sufficient cause " (A). 
 
 Still later the action for enticing away a servant, per 
 quod servitium 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 estimating damages 
 makes the proceeding in substance almost a penal one. 
 
 Actions for seduction in modern practice: proof or 
 presumption of service. In this kind of action it is not 
 necessary to prove the existence of a binding contract 
 of service between the plaintiff and the person seduced or 
 
 (R) Blackst. Comm. iil. 139; Wins- there was no precedent of any ancli 
 more v. Greenbank (1745), Wllles 677. action. 
 Bigelow L. 0. 328. It was objected that 
 
 Ames V. Unionlt. Co., 117 Id. S41; Turner v. State, 43 Ala. 549; Eose- 
 berry B. State, 50 Id, 160; Salter v. Howard, 43 Ga. 601 ; Caughey o. 
 Smith, 47 N. T. 260; Sargent v. Mathewson, 38 N. H. 54. 
 
 This principle is consistent and " it extends impartially to.every grade 
 of service, from the most brilliant and best paid to the most homely, and 
 it shelters our nearest and tenderest domestic relations from the inter- 
 ference of malicious intermeddlers." Haskins v. Boyster, 70 N. C. 605. 
 See Daniel v. Swearengen, 6 S. C. 303 ; Morgan «. Smith, 77 N. C. 37, 
 following Haskins v. Boyster, 70 Id. 601. 
 
 One is liable to an employer if he harbors snch employer's servants so 
 as to deprive him of their services. Campbell v. Cooper, 34 N. H. 49 ; 
 Dubois V. Allen, Anthon, 94. 
 
 But knowledge that the servant has absconded is necessary to attach 
 liability. Huntoon v. Hazleton, 20 N. H. 388; Gale v. Parrott, 1 Id, 33; 
 Coughey v. Smith, 46 N. Y. 244. 
 
 One who detains a servant after demand made by the master is liable 
 therefor. Ferrell v. Boykin, Phil. L. 9. 
 
 Seduction. 'Seduction is " The act of a man in enticing a woman to 
 commit unlawful sexual intercourse with him, by means of persua- 
 sion, solicitation, promises, bribes, or other means without the employ- 
 ment of force." Black's Law Die, p. 1074. See Eeed v. Williams, 6 
 Sneed (Tenn.), 680 ; 73 Am. Dec. 157; Comer v. Taylor, 82 Mo. 341; 
 Delvee v. Boardman, 20 Id. 446; Hopkins v. Mathias, 66 la. 333; Brotigh- 
 tonc. Smart, 69 111. 440; Simpson v. Grayson, 54 Ark. 404; Eagan v. 
 Murray, 80 la. 180; Hawn v. Baughart, 76 Id. 688; Brown v. Kings- 
 ley, 38 Id. 220. 
 
 " The common law gave the father an action for the seduction of his 
 
SEDUCTION. 277 
 
 enticed away. The presence or absence of seduction in 
 the common sense (whether the defendant " debauched the 
 plaintiff's daughter," in the forensic phrase) makes no 
 
 dangbter, but regarded it as an action for trespass tor assaulting his 
 servant, whereby he lost her services; later, an action on the case was 
 allowed, and it is now well settled that the action may be brought in 
 either form. 
 
 The action was based upon the relation of master and servant, and not 
 upon that of parent and child, and the measure of damages was such 
 only as a master would recover for a disabling injury to his servant. 
 The extent of the recovery has been enlarged by the courts from the 
 necessity of the case, rather than from the principles which govern the 
 action, until compensation is awarded to the parents as such, for the 
 shame and mortification which that wrong brings upon him and his 
 family. No action could be maintained by the father for the injury in 
 his parental capacity, but in the struggle between substantial justice to 
 the parent and the precedents in actions for seduction, the courts have 
 clung to the latter and striven to attain the former, until the anomaly 
 has been produced of requiring the action to be prosecuted by the father 
 for an injury inflicted upon him in his relation as master, and permitting 
 a recovery in his relation as parent." 21 Am. & Bug. Enc. of Law, 
 1009. 
 
 To the same point,^ " Both the alleged relation of master and servant 
 and the loss of service have long been considered as innocent fictions, which 
 only served to bring the real grievance before the court where damages 
 were allowed, not for the loss of services only, but principally for the 
 humiliation and disgrace brought upon the plaintifi's family, and for the 
 mental anguish suffered on account of the ruin of his daughter and the 
 dishonor of his household." Hndkins v. Haskins, 22 W. Va. 645. See 
 Barbour©. Stephenson, 32 Fed. Eep, 66; Simpson t;. Grayson, 45 Ark. 
 404; Coon v. Maffitt, 3 N. J. L. 169; 4 Am. Dec. 392; Dain ». Wyckoff, 
 7N. T. 191; Lawyer «. Fritcher, 54 Hun, 586; Stondt v. Shepherd, 73 
 Mich. 688. 
 
 In making out the constructive relation of master and servant and de- 
 termining what constitutes sufficient service the English rule requires 
 actual service or actual residence with the father at the time of the 
 seduction, but the American courts have been more liberal and have es- 
 tablished the rule that it Is only necessary to show that the parent has the 
 legal right, at the time, to command the services of the child which may 
 be employed by a third person. Boyd ». Byrd, 8 Black. 113; 44 Am. Dec. 
 740; Bartley v. Kichtmeyer, 4 N. Y. 38; 53 Am. Dec. 338; White v. Murt- 
 land, 71 HI. 260; 22 Am. Rep. 100: Ellington v. Ellington, 47 Miss. 329; 
 Emery v. Gowen, 4 Me. 83; 16 Am. Dec. 223 ; Clinton v. York, 26 Me. 167; 
 Kennedy ». Shea, 110 Mass. 147; 14 Am. Eep. 584; Nicklesonw. Stryker, 10 
 Johns. 115; 6 Am. Dec. 318; Furman v. Van Sise, 56 N. Y. 435; 15 Am. 
 
278 PEKSONAL WRONGS. 
 
 difference in this respect ; it is not a necessary part of the 
 cause of action, but only a circumstance of aggravation 
 (i). Whether that element be present or absent, proof of 
 
 (i) Evans v. Walton (1867), L.R. 2 C. for enticing away a servant, were dis- 
 
 F. 615, 36 L. J. 0. P. 307, where it was tinct species; and that to sustain an 
 
 unsncoesslully contended that the action lor " enticing away " alone, a 
 
 action for sedncing u danghter with binding contract of service mnst be 
 
 loss of service as the consequence, and proved. 
 
 Hep. 441 ; Clark v. Fitch, 2 Wend. 459 ; 20 Am. Dec. 659 ; Mulvehall v. Mill- 
 ward, 11 N. Y. 343; Mercer v. Walmsley, 4 Har. & J. 27; 9 Am. Dec. 486; 
 Hornketh v. Barr, 8 Serg. & R. 36; 11 Am. Dec. 568; Eiddle v. McGinnis, 
 22 "W. Va. 253; Mohry ». Hoffman, 86 Pa. St. 868; Benson o. Remington, 
 2 Mass. 113; Lavery v. Crooke, 52 Wis. 612; 38 Am. Rep. 768; Roberts v. 
 Connelly, 14 Ala. 235; Thompson v. Patterson, 23 Ark. 159; Greenwood 
 1/. Greenwood, 28 Md. 369; Bolton v. Miller, 6 Ind. 262; Hays v. Borders, 
 6111. 46 j Anderson i>. Ryan, 8 Id. 583; White v. Murtland, 71 Id. 252; 
 Franklin v. McCorkle, 16 Lea, 609; 1 S. W. Rep. 250; Llpe v. 
 Eisenlerd, 32 N. Y. 229; Hewitt v. Prime, 21 Wend. 79; Doyle o. 
 Jessup, 29 111. 460; Damon v. Moore, 5 Lans. 459; South v. Denniston, 
 2 Watts, 474; Davidson u. Abbott, 52 Vt. 570; 36 Am. Rep. 767; Abrahams 
 V. Kidney, 104 Mass. 222; 6 Am. Kep. 220; Knight i;. Wilcox, 14 N. Y. 
 413 ; Blagge v. IlSley, 127 Mass. 191 ; 34 Am. Rep. 361 ; Russell v. Chambers, 
 31 Minn. 54. 
 
 Where the daughter was more than twenty-one years of age, the 
 American courts agree with the English courts in holding that there 
 must exist some kind of service; " but the slightest acts have been held 
 to constitute the relation of master and servant in such a case." Martin 
 V. Payne, 9 Johns. 387; 6 Am. Dec. 288; Kelly v. Donnelly, 5 Md. 211; 
 Kendrich v. McCrary, 11 Ga. 603; Vossel v. Cole, 10 Mo. 634; Mnlvehall 
 V. Millward, 11 N. Y. 343; Briggs v. Evans, 5 Ired. 16; Whitney v. Elmer 
 6 Barb. 250; Wert u. Strause, 38 N. J. L. 184; Lamb o. Taylor, 67Md. 85; 
 8 A. Rep. 760; Lee v. Hodges, 13 Gratt. 726; Patterson v. Thompson, 24 
 Ark. 65. 
 
 Any one entitled to the services of a female may sue for her seduction. 
 Hamilton v. Lomax, 26 Barb. 615; Pence v. Dozier, 7 Bush. 133; Elling- 
 ton V. Ellington, 47 Miss. 329; White v. Nellis, 31 N. Y. 405; 88 Am. Dec. 
 282 ; and authorities cited supra. 
 
 . Any person who stands in loco parentis, as a step-father, or grandfather 
 or guardian, where the facts prove the relation of master and servant, 
 can maintain such suit. Davidson v. Goodall, 18 N. H. 423; IngersoU v. 
 Jones, 5 Barb. 661; Bracy v. Kibbe, 31 Id. 273; Maginnay o. Sandek, 5 
 Sneed (Tenn.), 146; Certwell v. Hoyt, 13 N. Y. Supreme Ct. 676; 6 Hun, 
 576; Kinney v. Langhenour, 89 N. C. 365; Morgan v. Dawls, 4 Cow. 412; 
 Bartley v. Richtmyer, 4 N. Y. 38; 53 Am. Dec. 338; Ball v. Bruce, 21 111. 
 161; Keller v. Donnelly, 5 Md. 211; Moritz v. Ganhart, 7 Watts. 302, 
 
SEDUCTION. 279 
 
 a de facto relation of. service is enough; and any fraud 
 whereby the servant is induced to absent himself or herself 
 affords a ground of action, " when once the relation of 
 master and servant at the time of the acts complained of is 
 established " (A;). 
 
 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 fbllowed (?). 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 {m). Some evidence of such a relation there 
 must be, but very little will serve. A grown-up daughter 
 
 (ft) Willes J., L. R. 2 0. P. 622. (m) Harper v. iMffl^n (1827), 7 B. & 0. 
 
 Q) Speight Y. Oliviera (1819), 2 Stark; 387. This was long before courts of law 
 
 493, cited with approved by Montague did or could recognize any capacity of 
 
 Smitb J., L. R. 2 C. P. 624:. contracting in a married woman, 
 
 semble; 32 Am. Dec. 762; Blanchard v. Usley, 120 Mass. 487; 26 Am. Rep. 
 535; Butler Co. v. McCann, 23 Ala. 599. But see Ferijslee v. Moyer, 3 
 Watts & S. 416; 39 Am. Dec. 33. 
 
 Or, the mother, when she becomes the head of the family by the death 
 of the father. Logan v. Murray, 6 Serg. & E. 175; 9 Am. Dec. 422; Hein- 
 rlchs V. Kenchner, 35 Mo. 378; Vessel v. Cole, 10 Mo. 634; 47 Am. Dec. 
 136; Felkneru. Scarlet, 29 Ind. 154; Gray i>. Durland, 50 Barb. 100; Gray 
 V. Durland, 51 N. Y. 424; Ryan v. Fralick, 50 Mich. 483; George v. Van 
 Horn, 9 Barb. 523; Hobson v. JFullerton, 4 111. App. 282; Vlllepique v. 
 Shulor, 3 Strobh. 462; Davidson v. Abbott, 52 Vt. 570; 36 Am. Rep. 767; 
 Parker ». Meek, 3 Sneed (Tenn.), 29. 
 
 Where one entitled to the services of a female consents to her seduction 
 such consent is a complete bar to recovery of damages therefor. Tar- 
 vis V. Barger, 24 Barb. 614; Parker v. Elliott, 6 Munf. 587; Seager v. Sli- 
 gerland, 2 Caines, 219; Smiths. Martin, 15 Wend. 270; Vossel v. Cole, 10 
 Mo. 634; 47 Am. Dec. 136. 
 
 The negligence or careless indifference of the plaintiff in respect to his 
 daughter may be proved in mitigation of damages. Zerbing v. Mourer, 
 2 Greene (Iowa), 520; HoUis v. Wells, 3 Penn. Law Jour. Rep. 169; 
 Graham v. Smith, 1 Edm. Sel. Cas. 267; and authorities cited supra. 
 
280 PERSONAL WRONGS. 
 
 keeping a separate establishment cannot be deemed her 
 father's servant (n) ; nor can a daughter, whether of full 
 age or not, who at the time of the seduction is actually 
 another person's servant, so that no part of her services is 
 at her parents' disposal (o). On the other hand, the fact 
 of a child living with a parent, or any other person in loco 
 parentis, as a member of the family of which that person 
 is the head, is deemed enough to support the inference 
 " that the relation of master and servant, determinable at 
 the will- of either party, exists between them " (p). And 
 a daughter under euge, returning home from service with 
 another person which has been determined, may be deemed 
 to have re-entered the service of her father (q). " The 
 right to the service is sufficient " (r). 
 
 Partial attendance in the parents' house is enough to 
 constitute service, as where a daughter employed elsewhere 
 in the daytime is without consulting her employer free to 
 assist, and does assist, in the household when she comes 
 home in the evening (s). 
 
 Damages. Some loss of service, or possibility of service, 
 must be shown as consequent on the seduction, since that 
 is, in theory, the ground of action (^); but when that 
 condition is once satisfied, the damages that may be given 
 are by no means limited to an amount commensurate with 
 
 (M) Mardey v. Field (1859), 7 C. B. N. S. (p) Bramwell B. in TlumpsonT. Ross, 
 
 96, 29 L. J. C. P. 79. last note. 
 
 (o) Bean v. Peel (1804) , 5 East, 45 ; even (g) Terry v. ButcMnson (1868) , L. R. 3 
 
 if by the master's licence she gives Q. B. 599, 37 L. J. Q. B. 257. 
 
 occasional help In her parents' work; (r) Llttledale J. cited with approval 
 
 Thompson v. Boss (1859), 5 H. & N. 16, 29 by Blackburn J., L. E. 3 Q. B. 602. 
 
 L. J. Ex. 1 ; Hedges v. Tagg (1873), L. R. (s) Hist v. Faux (1863), Ex. Oh. 4 B. & 
 
 7 Ex. 283,41 L. J. Ex. 169. In the United S. 409, 32 L. J. Q. B. 386. 
 
 States it is generally held that actual (*) Grinnell v. Wells (1844), 7 M. &G. 
 
 service with a third person is no bar to 1033, 14 L. J. C. P. 19; Eager v. Orimuiood 
 
 the action, unless there is a binding (1847), lEx.61,16L. J. Ex.236, where the 
 
 contract which excludes the parents' declaration was framed in trespass, it 
 
 right ol reclaiming the child's services— would seem purposely on the chance ol 
 
 i. e. that service either de facto or dejure the court holding that the per quod ser- 
 
 will do : Martin v. Payne (Sup. Court N. vitium amiait could be dispensed with. 
 . T. 1812) , Bigelovv L. C. 286, and notes. 
 
^ SEDUCTION. 281 
 
 the actual loss of service proved or inferred. The award- 
 ing of exemplary damages is indeed rather encouraged than 
 otherwise (m). It is immaterial whether the plaintiff be a 
 
 («) See Terry v. HvicMnson, note (3) last page. 
 
 Damages. In computing the damages suffered by the plaintiff in a 
 suit for seduction the jury will consider "not only the loss of services 
 which he suffered, and the expenses incurred by him by reason of the 
 seduction, pregnancy, confinement and other illness," but also the 
 anxiety and the suffering of mind caused by the loss of virtue of his 
 daughter, the corrupting influence upon his other children, and the dis- 
 grace of his family. Phillips v: Hoyle, 4 Gray, 568; Rollins v. Chalmers, 
 61 Vt. 592; Taylor v. Shelkett, 66 Ind. 297; Wandell v. Edwards, 26 Hun, 
 498; Barbour v. Stephenson, 32 Fed. Rep. 06; Akerly, v. Haines, 2 Caines, 
 292; Hogan ». Cregan, 6 Robt. 138; Stiles ». Tilford, 10 Wend. 338; 
 Wilds V. Bogan, 57 Ind. 453; Hatch v. Fuller, 131 Mass. 574; Rollins 0. 
 Chalmers, 51 Vt. 592; Hornketh v. Barr, 8 Serg. & R. 36; 11 Am. Dec. 
 568; Kendrick v. McCrary, 11 Ga. 603; Clem d. Holmes, 33 Gratt. 722; 
 36 Am. Rep. 793; Lueckerc. Steilen, 89 111. 545; 31 Am. Rep. 104; Grableo. 
 Margrave, 4 111. 372; 38 Am. Dec. 88;'Phelin«. Kenderllne, 20 Pa. St. 354. 
 
 Exemplary or vindictive damages may be awarded, in the discretion of 
 the jury, for the double purpose of setting an example and of punishing the 
 wrongdoer. Lavery v. Crook, 62 Wis. 612; 38 Am. Rep. 768; Badgley «. 
 Decker, ^44 Barb. 577: Torre v. Summers, 2 Nott & M. 267; 10 Am. Dec. 
 597; Fox V. Stevens, 13 Minn. 272; Morgan v. Rose, 74 Mo. 318; David- 
 son V. Abbott, 52 Vt. 670; 36 Am. Rep. 767; Johnston v. Disbrow, 47 Mich. 
 59; Geisei). Schultz, 69 Wis. 621; 34 N. W. Rep. 913; Franklin ». Mc- 
 Corkle, 16 Lea, 609; 1 S. W. Rep. 250,- Ingersol v. Jones, 5 Barb. 661. 
 
 In forming their verdict the jury should consider both the merits of 
 the plaintiff and the demerits of the defendant; and all the circumstances 
 which diminish one or enhance the other. The moral reputation of the 
 parties may be put in issue and their social position, and pecuniary con- 
 dition may be shown either in aggravation or mitigation of damages, as 
 the case may be. Cochran v. Ammon, 16. III. 316; Peters v. Lake, 66 Id. 
 209; Shattucki). Hammond, 2 Rowell, 496; Hoffman v. Kemerer, 44 Pa. 
 St. 452 ; Love o. Masoner, 6 Baxt. 24 ; 32 Am. Rep. 522 ; Carder v. Fore- 
 hand, 1 Mo. 704; 14 Am. Dec. 317; White v. Murtland, 71 III. 260; 22 
 Am. Rep. 100; Patterson v. Hayden, 17 Oreg. 238; 11 Am. St. Rep. 822; 
 Wallace v. Clark, 2 Overt. 93 ; 5 Am. Dec. 654 ; Drish v. Davenport, 2 Stew, 
 266; Hawn v. Baughart, 76 la. 683; Fry v. Leslie, 87 Va. 269; Leckey v. 
 Bloser, 24 Pa. St. 401 ; Stoudt v. Shepherd, 73 Mich. 688 ; Aulay v. Birk- 
 head, 13 Ired. 28; 55 Am. Dec. 427; Tillotson v. Cheetham, 3 Jojins. 66; 
 3 Am. Dec. 459; Shewalter v. Bergman, 123 Ind. 155; Grable u. Mar- 
 grave, 4 111. 372; 38 Am. Dec. 90; Eea v. Tucker, 61 111. 110; 99 Am. Deo. 
 539; Thompson v. Clendening, 1 Head, 287; Hays v. Sinclair, 23 Vt. 108. 
 
282 PERSONAL WRONGS. 
 
 parent or kinsman, or a stranger in blood who has adopted 
 the person seduced (a;). 
 
 Services of young child. On the same principlet or 
 fiction of law a parent can sue in his own name for any 
 injury done to a child living under his care and control, 
 provided the child is old enough to be capable of rendering 
 service ; otherwise not, for " the gist of the action depends 
 upon the capacity of the child to perform acts of service ' ' 
 
 Capricious operation of the law. The capricious work- 
 ing of the action for seduction in modern practice has often 
 been the subject of censure. Thus, Serjeant Manning wrote 
 more than forty years ago : " the quasi fiction oi servitium 
 amisit affords protection to the rich man whose daughter 
 occasionally makes his tea, but leaves without redress the 
 poor man whose child is sent unprotected to earn her bread 
 amongst strangers " (a). All devices for obtaining what is 
 virtually a new remedy by straining old forms and ideas 
 beyond their original intention are liable to this kind 
 of inconvenience. It has been truly said (a) 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 vio- 
 lence to any legal principle. Now it is too late to go back 
 upon the cases, and legislation would also be difiicult and 
 troublesome, not so much from the nature of the subject 
 in itself as from the variety of irrelevant matters that would 
 probably be imported into any discussion of it at large. 
 
 (») Irwin T. Dearman (1809), 11 East, child was capable of service, their ver- 
 23. diet Wonld be disturbed. 
 
 (y) Hall V. Bollander (18-25), 4 B. & C. («) Note to Grinnell v. WelU, 7 M. & G. 
 
 660. Bat this case does not show that, 1041. 
 
 if a jury chose to And that a very yoang (a) Startle's note to Speight v. Oliriera 
 
 (1819),2 Stark. 498. 
 
MENACING SERVANTS OR TENANTS. 283 
 
 Constructive service in early cases. It would be merely 
 curious, and hardly profitable in any just proportion to the 
 labour, to inquire how far 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 (6); but this is re- 
 ported with a quaere. A generation later (c) we find New- 
 ton C. J. saying thrft a relation of service between father 
 and son cannot be presumed: " for he may serve where it 
 pleaseth him, and I cannot constrain him to serve without 
 his good will : " this must apply only to a son of full age, 
 but as to that case Newton's opinion is express that some 
 positive evidence of service, beyond living with the parent 
 as a member of the household, is required to support an 
 action. Unless the case of a daughter can be distinguished, 
 the modern authorities do not agree with this. But the 
 same Year Book bears them out (as noted by Willes J.) 
 (d) in holding that a binding contract of service need not 
 be shown. Indeed, it was better merely to allege the ser- 
 vice as a fact {in servitio sico existentem cepit), 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 
 coveh^bt (e). 
 
 Intimidation of servants and tenants. A similar cause 
 of action, but not quite the same, was recognized by the 
 medieval common law where a man's servants or tenants at 
 will (/" ) were compelled by force or menace to depart from 
 
 (6) 11 Hen. IV. fo. 1-2, pi. 2, per Huls. (/) If the tenancy were not at will, 
 
 J. (A. D. 1410). the departure wonld be a breach of oon- 
 
 (c) 22 Hen. VI. 31 (A. D. U43). tract ; this Introdnoes a new element of 
 
 (.d) L. K. 2 C. P. 621-2. difficulty, never expressly faced by our 
 
 (e) 22 Hen. VI. 32 6, per Our. (Newton oourts before iMmley v. 6ye, of which 
 
 O. J. ; Falthorpe, Asoue or Ayscoghe, more elsewhere. 
 
 Portington JJ.) ; F. N. B. 168 F. 
 
284 PERSONAL WEONGS. 
 
 their service or tenure. " There is another writ of tres- 
 pass," 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 " (g). Examples of this kind are not uncom- 
 mon down to the sixteenth century or even later ; we find 
 in the pleadings considerable variety of circumstance, which 
 may be taken as expansion or specification of the alia 
 enormia regularly mentioned in the conclusion of the 
 writ (A). 
 
 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 foundation for the 
 
 [g) V. K. B. 87 N. ; and see the form of " vnlneravlt " is not jastifiable and 
 
 the writ there. It seems tberefoxe, that therefore most be traversed, otherwise 
 
 " picketing," so soon as it exceeds the under a plea of son ataoMU de^tesne; 23 
 
 bounds of persuasion and becomes phy- Ass. 102, pi. 76, is for actaal beating, ag- 
 
 sical Intimidation, is a trespass at com- grayated by carrjingaway timber of the 
 
 mon law against the employer. plaintiff's imerimentum=3naterUm>ai, see 
 
 (h\ U Edw. IV. T, pi. 13, a writ " qnare Dn Cange, s. v. materia; in Anglo-French 
 
 tenentes snos verberaTit per qnod a Toerexme. In A. d. 1300 an action Is le- 
 
 tennra sua recesserunt" ; 9 Hen. VII. 7, corded against one John de Mewlc for 
 
 pi. 4, action for menacing plaintiffs deforcing the plaintiff of land which she 
 
 tenants at will ** de vita et mutilatione had already recovered against him by 
 
 membroram, Ita quod recesserunt de judgment, " so that no one dare till that 
 
 tenura ** ; Bastell, Entiles 661, 663, simi- land, because of him, nor coold she deal 
 
 lar forms of declaration ; one (pi. 9} Is with it in any way because of him." 
 
 for menacing the king's tenants, so that Select Civil Fleas, Selden Soc. 1890, ed. 
 
 " negotia sua palam incedere non ande- Baildon, vol. 1, pi. 7. Cp. Reg. Brev. 
 
 bant"; Garret y. Taylor, Cro. Jac 567, (1595), 104o, "qnando tenentes nonau- 
 
 - action on the case for threatening -the dent morari snper tenarls snis," and 
 
 plaintiff 's workmen and customers, " to Tarleton v. MeGawleg (1794), 1 Peake,S70, 
 
 mayhem and tc.y them with suits if they 3 B. B. 689, action for deterring negroes 
 
 bought any stones " ; 21 Hen. VI. 26, pL on the coast of Africa from trading with 
 
 9, " manassavit vulneravit et verbe- plaintiff's ship. 
 ravit"; note that in this action the 
 
 Intimidation of servants and tenants. A person Is li&ble, who for 
 the purpose of injaiing another and of indacing him to abandon a lease, 
 persnaded and threatened his laborers so that they left him. Dickerson 
 ». Dickson, 33 La. Ann. 1261. See, ante, p. 201. It is recognized as 
 aniawfnl for strikers or others to Interfere by threats, intimidation or 
 coercion with the free will of workmen indaciog them to leave the 
 service of their employers. Rogers v. Evarts, 17 N. T. S. 264; Perkins 
 V. Eogg (Snp. Ct. Cln.), 28 Wtly. Law Bal. 32, see netes on CONSPIR- 
 ACY, p. 287. 
 
MEKACING SERVANTS OE TENANTS. 285 
 
 broader principle that " he that hinders another in his 
 trade or livelihood is liable to an action for so hindering 
 him" (i), subject, of (Jburse, to the exception that no 
 wrong is done by pursuing one's own trade or livelihood 
 in the accustomed manner though loss to another may be 
 the result (A;) and even the intended result (I). Historically 
 both this principle and that of Lumley v. Oye {m) are 
 developments of the old "per quod servitium amisit;" 
 but in the modern law they depend on different and much 
 wider reasons, and 'raise questions which are not technical 
 but fundamental. We shall therefore deal with them not 
 here but under another head. 
 
 («)- Keeble v. Bickeringill (1705) , 11 East, (1889) , 23 Q. B. Div. 598, 58 L. J. Q. B. 465, 
 
 S74 n. Cp. Select Civil Pleas, vol. 1, pL H. L. Deo. 1891. 
 
 106. (m) 2 B. & B. 216, 22 L. J. Q. B. 463 
 
 (ft) 11 East, 576; suiwa, p. 135. (1853). 
 
 (2) Mogul Steamship Co. v. McGregor 
 
286 
 
 CHAPTER VII. 
 
 DEFAMATION. 
 
 Civil and criminal jurisdiction distinguished. Eepu- 
 tation and honour are no less precious to good men than 
 bodily safety and freedom. In some cases they may be 
 dearer than life itself. Thus it is needful for the peace and 
 well-being of a civilized commonwealth that the law should 
 protect the reputation as well as the person of the citizen. 
 In our law some kinds of defamation are the subject of 
 criminal proceedings, as endangering public order, or being 
 offensive to public decency or morality, We are not here 
 concerned with libel as a criminal offence, but only with the 
 civil wrong and the right to redress in a civil action ; and 
 we may therefore leave aside all questions exclusively 
 proper to the criminal law and procedure, some of which 
 are of great difficulty (a). 
 
 Slander and libel distinguished. The wrong of de- 
 famation may be committed either by way of speech, or 
 
 (o) Snch as the definition of blasphemous libel, and the gionnds on which It is 
 punishable. 
 
 Slander. Slander is " oral defamation, the speaking of false and 
 malicious words concerning another, whereby injury results to his rep- 
 utation." Black's Law Die, p. 1101. See Achorn v. Piper, 66 la. 694; 
 McKee v. Wilson, 87 N. C. 300. Kedrollvansky v. Niebaam, 70 Cal. 216 ; 
 Williams v. Karnes, 4 Humph. 11; Dawson a. Holt, 11 Lea, 583; 47 Am. 
 Bep. 312; Widrig v. Oyer, 13 Johns. 124; Goodrich v. Hooper, 97 Mass. 
 1; Wonson v. Say ward, 13 Pick. 402; Georgian. Kifford, 45 la. 48; and 
 authorities cited post, 
 
 Iiibel. Several American cases define libel concisely and in substan- 
 tial conformity to the text. The following are examples : — 
 "Any publication is a libel which tends to degrade, injure or "bring 
 
SLANDER AND LIBEL. 287 
 
 by way of writing or its equivalent. For this purpose it 
 may be taken that significant gestures (as the finger-lan- 
 guage of the deaf and dumb) are in the same case with 
 audible words; and there is no doubt that drawing, 
 printing, engraving, and every other use of permanent 
 visible symbols to convey distinct idea, are in the same 
 case with writing. The term slander is appropriated to 
 the former kind of utterances, libel to the latter. Using 
 the terms " written " and " spoken " in an extended sense, 
 to include the analdgous cases just mentioned, we may say 
 that slander is a spoken and libel is a written defamation. 
 
 a person Into contempt and ridicule ; or accuse him of a crime or other 
 act odious and disgraceful." Smart v. Blanchard, 42 N. H. 151. 
 
 " A malicious defamation of any person, made by either printing, writ- 
 ing, signs or pictures, in order to provoke wrath, or expose him to pub- 
 lic hatred, contempt or ridicule." Root v. King, 7 Cow. 620. 
 
 •' Any malicious publication, written, printed or painted, which by 
 words or signs, tends to expose a person to contempt, ridicule, hatred 
 or degradation of character is a libel." Neeb v. Hope, 111 Pa. St. 146. 
 See Huse v. Intsr-Ocean Co., 12 111. App. 627; Bergman v. Jjones, 94 N. 
 Y. 51; Dexter v. Spear, 4 Mass. 115; Torrance v. Hurst, 1 Miss. 403; 
 Armentrout v. Moranda, 8 Blackf. 426; Obaugh o. Finn, 4 Ark. 110; Ton- 
 ville V. McNease, Dudley (S. C), 303; 31 Am. Dec. 656; Wiel v. Israel, 
 42 La. An. 966; 8 So. Rep. 826; Republican Pub. Co. v. Miner (Colo. 
 App.), 34 Pac. Rep. 485; Buckstaff v. Viair(Wis.), 64 N. W. Rep. Ill; 
 Wlnchell v. Argus Co., 69 Hun, 354 ; 23 N. Y. S. Rep. 660 ; Hart o. Eve- 
 ning News Assoc, 94 Mich. 114; 63 N. W. Rep. 962; Id. 94 Mich. 119; 64 
 N. W. Rep. 266 ; Keemle v. Sass, 54 Mo. 99 ; Legg v. Dunleavy, 80 Id. 
 663; Nelson v. Musgroove, 10 Id. 648; Hillhouse v. Dunning, 6 Conn. 
 407; Adams v. Lawson, 17 Gratt. 260; 94 Am. Dec. 456; Tillson v. Rob- 
 bins, 68 Me. 296. See also, the authorities cited under the special divis- 
 ions 01 the subject in the American notes to this chapter. 
 
 Slander and libel, distinguished. False defamatory words, if written 
 and published, constitute a libel; if spoken a slander. Steele v. South- 
 wick, 9 Johns. 214; 1 Am. Lead. Cas. 106; Lansing v. Carpenter, 9 Wis. 
 540; 76 Am. Dec. 281 ; Layton v. Harris, 3 Harr. (Del.) '406. 
 
 The American authorities concur with the English in holding that the 
 distinction between verbal and written slander is well defined and estab 
 lished. In the case of Hillhouse v. Dunning (6 Conn. 408), the court 
 said, " the law of libel makes a material difference between words 
 spoken and words written. To be actionable the former must tend to 
 
288 DEFAMATION. 
 
 The law has made a great difference between the two. 
 Libel is an offence as well as a wrong/ but slander is a 
 civil wrong only (S). Written utterances are, in the ab- 
 sence of special ground of justification or excuse, wrongful 
 as against any person whom they tend to bring into 
 hatredj/contemptj, or ridicule. Spoken words are action- 
 able only when special damage can be proved to have been 
 their proximate consequence, or when they convey impu- 
 tations of certain kinds. 
 
 No branch of the law has been more fertile of litigation 
 than this (whether plaintiffs be more moved by a keen 
 sense of honour, or by the delight of carrying on personal 
 controversies under the protection and with the solemnities 
 
 (6) Scandalum magnatum was, and In the Law of IJbel and Slander, 134 — 137. 
 strictness of law still mjgbt be, an ex- Mr. Odgers has not found any case after 
 ceptlon to this : Blake.Odgers, Digest of 1710. 
 
 briDg a man into danger of punishment, exclude him from society, or 
 injure him In his reputation; but it is enough, if the latter induce an ill 
 opinion to be bad of the party; or make him contemptible and ridicu- 
 lous." 
 
 In the case of Colby v. Eeynolds (6 Vt. 493 ; 27 Am. Dec. 676), the 
 doctrine was announced as follows: " A distinction has long been known 
 and recognized between verbal and written slander. Words, when com- 
 mitted to writing and published, are considered as libelous, which if 
 only spoken, would not subject the person speaking to any action. 
 Perhaps it is to be regretted that a distinction was ever made between 
 oral and written slander; and if it was a new question, no distinction 
 would now be made. The reasons which-bave been given for the dis- 
 tinction, have been questioned both by writers and judges of eminence. 
 It has been made, however, and become a part of the law, and as such 
 we must receive It. There can be no question, but that a slander written 
 and published, evinces a more deliberate intention to injure, is calculated 
 more extensively to circulate the accusation, and to provoke the person 
 accused, to take the means of redress in his own hands, and thus commit 
 a breach of the peace, than mere oral slander which is spoken and soon 
 forgotten." See Tillson v. Bobbins, 68 Me. 299; Stow v. Converse, 3 
 Conn. 325; Hake ». Brames, 95 Ind. 162; Cary v. Alien, 39 Wis. 487; 
 Armentrout v. Moranda, 8 Blackf. 426; Allen v. News. Pub. Co., 81 Wis. 
 120; 50 N. W. Rep. 1093; Manner v. Simpson, 18 Baly, 156; Shelton v. 
 Nance, 7 B. Mon. 128; White v. Nichols, 3 How. 266; Dexter v. Spear, 4 
 Mason, 115. 
 
SLANDER. 289 
 
 of civil justice), nor has any been more perplexed with 
 nainute 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 informa- 
 tion will find it in Mr. Blake Odgers' excellent and ex- 
 haustive monogroph (c). We shall, as a rule, confine our 
 authorities and illustrations to recent cases. 
 
 1. — Slander. 
 
 When slander is aptionable. 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 ofience. 
 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 of profit, profession, or 
 trade, in short, where they manifestly ten'd to pre- 
 judice 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- 
 
 (c) A Digest of the Law of Libel and Literatare and Art " (2nd ed. London, 
 
 Slander, etc. By W. Blake Odgers, Lon- 1884), may also be usefully cbnsnlted: 
 
 don, 2nd ed. 1887. Part IV. of Mr. bat this does not cover the whole ground. 
 Shortt's "Law relating to Woris of 
 
 What slander is actionable. In the case of Pollard v. Lyon (91 U. 
 S. 226), the court makes substantially the same classification of action- 
 able slander as that of the text. 
 
29i DEFAMATION. 
 
 tiff's reputation is so manifest that the law does not require 
 evidence of their having actually injured it. There is 
 much cause however to deem this and other like reasons 
 given in our modern books mere afterthoughts, devised 
 to justify the results of historical accident: a thing so 
 i common in current expositions of English law that we 
 need not dwell upon this example of it (d). 
 
 Meaning of "prima facie libellous." No such dis- 
 tinctions exist in the case of libel : it is enough to make a 
 written statement prima facie libellous that it is injurious 
 to the character or credit (domestic, public, or professional) 
 of. the person concerning whom it is uttered, or in any way 
 tends to cause men to shun his society, or bring him into 
 hatred, contempt, or ridicule. When we call a statement 
 prima facie libellous, we do not mean that the person 
 making it is necessarily a wrong-doer, but that he will be so. 
 held unless the statement is found to be within some 
 reeognized ground of justification or excuse. 
 
 Such are the rules as to the actionable quality of words, 
 if that be a correct expression. The authorities by which 
 they are illustrated, and on which they ultimately rest, are 
 to a great extent antiquated or trivial (e) ; the rules them- 
 selves are well settled in modern practice. 
 
 Special damage. Where " special damage " is the 
 ground of action, we have to do with principles already 
 considered in a former chapter (/) : namely, the damage 
 
 (d) See Blake Odgers, pp. 2— 4, and 6 ' (e) The old abridgments, e. 9. BoUe, 
 
 Amer. Law Eew. 593. It seems odd that sub tit. Action sur Case, Pur. Parolls, 
 
 the [law should presume damage to a abound in examples, many of them suffl- 
 
 man from printed matter in a newspaper oiently grotesque. A select group of 
 
 which, it may be, none of his acquaint- cases is reported by Coke, 4 Eep. 12 6— 
 
 ances ar% likely to read, and refuse to 20 b, 
 
 presume it from the direct oral comma- (/) p. 28, above, 
 nication of the ^me matter to the per- 
 sons most likely to act upon it. 
 
 Special damage. By special damage is meant such as the law 'will not 
 infer from the nature of the act, but must be alleged In the pleadings 
 
slander: special damages. 291 
 
 must be in a legal sense the natural and probable result of 
 th^ words complained of. It has been said that it must 
 also be " the legal and natural consequence of the words 
 spoken" in this sense, that if A. speaks words in dispar- 
 agement of B. which are not actionable jjer se, by reason 
 of which speech C. does something to B.'s disadvantage 
 that is itself wrongful as against B. (such as dismissing B. 
 from his service in breach of a subsisting contract), B. has 
 no remedy against A., but only against C. (g). But this 
 doctrine is contrary to principle: the question is not 
 whether C.'s act was lawful or unlawful, but whether it 
 might have been in fact reasonably expected to result from 
 the original act of A. And, though not direptly overruled, 
 it has been disapproved by so much and such weighty 
 authority that we may say it is not law (h ) . There is 
 authority for the proposition that where spoken words, 
 defamatory but not actionable iUythemselves, are followed 
 by special damage, the cause of action is not the original 
 speaking, but the damage itself (^■). This does not seen! 
 
 (ff) Vicars v. Wilcocks (1806), 8 East, 1. (t) Maule J. ex relat. BramweU L. J., 
 
 (A) Li/nch V. Knight (1861), 9 H. L. C. 7 Q. B. D. 437. 
 577. See notes to Vicars v. Wilcocks, in 
 2 Sm. L. C. 
 
 and proved at the trial, Wilson v. Eunyon, Wrigtit, 651; Tobias v. 
 Harland, i Wend. 539. The American cases cited under the several 
 paragraphs of this chapter illustrate, in many instances, the application 
 of the doctrine of the text to particular statements of facts. And see 
 Herrick v. Lapham, 10 Johns'. 281; Malloy v. Bennett, 15 Fed. Eep. 371; 
 Barnes v. Trundy, 31 Me. 321 ; Bassll v. Elmore, 65 Barb. 627; Stauss v. <i 
 Meyer, 48 111. 385; Achorn v. Piper, 66 la. 694; Bailey v. Dean, 5 Barb. 
 297; Walker ». Tribune Co., 29 Fed. Eep. 827; Williams v. Hill, 19 Wend. 
 305 ; Democrat Pub. Co. v. Jones, 83 Tex. 302 ; 18 S. W. Eep. 652 ; Oakley 
 V. Farrington, 1 Johns. Cas. 129; Cook v. Cook, 100 Mass. 194; Birch «. 
 -Benton, 26 Mo. 154; Flatow v. Von Bremsen, 11 N. Y. 680; 19 Civil 
 Proc. E. 125, 131; Morasses. Brochn, 151 Mass. 567; 25 H. E. Eep. 74; . 
 Bostwick V. Nickelson, Kirby, 65; Harcourt v. Harrison, 1 Hall, 474; 
 Shipman v. Burrows, Id. 399 ; Kelly v. Huffington, 3 Cranch C. Ct. 81 ; 
 Melvin v. Weiant, 36 Ohio St. 184; Eeenholts v. Becker, 3 Denio, 346; 
 Moore v. Stevenson, 27 Conn. 14; Burford v. Wible, 32 Pa. St. 95. 
 
292 DEFAMATION. 
 
 to affect the general test of liability. Either way the 
 speaker will be liable if the damage is an intended or natural 
 consequence of his words, otherwise not . 
 
 Repetition of spoken words. It is settled however that 
 no cause of action is afforded by special damage arising 
 merely from the voluntary 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 (/) 
 But if the first speaker authorized the repetition of what he 
 said, or (it seems) spoke to or in the hearing of some one 
 who in the performance of a legal, official, or moral duty 
 ought to repeat it, he will be liable for the consequences (k). 
 
 Special damage involves a definite temporal loss. 
 
 Losing the general good opinion of one's neighbours, con- 
 
 (J) FarMnsv. Scott (1862), IH. & 0. 163, (1876), 1 Ex. D. 91, 45 L. J. Ex. 281, must 
 
 31 Ij. J. Ex. 331 (wife repeated to her be taken not to interfere with this dis- 
 
 husband gross language nsed to herseU, tlnction, as the majority of the conrt 
 
 wherefore the hnsband was so mnch disclaimed any intention of so doing: 
 
 hurt that he left her). but see thereon Mayne on Damages, 4th 
 
 (k) Blake Odgers 831. Siding v. Smith, ed. 72. 
 
 Bepetltion of spoken words. Supporting the text are several Amer- 
 ican cases. 
 
 Thus, in Hastings v. Stetson (126 Mass. 331), the court said: " A per- 
 son who utters slander is not responsible for its voluntary and unjusti- 
 fiable repetition, without his authority OfTjrequest, by other over whom 
 he has no control, and who thereby render themselves liable to the per- 
 son slandered. Such repetition cannot be considered in law the neces. 
 sary, natural and probable consequence of the original slander. Followed 
 in Shurtleff v. Parker, 130 Mass. 295. See Marker v. Dunn, 68 la. 720; 
 Moberiy v. Preston, 8 Me. 462; Cade v. Eedditt, 15 La. An. 492; Knight 
 V. Foster, 39 N. H. 576; Clarkson v. McCarty, 5 Blackf. 574. 
 
 Stiecial damage Involves a definite temporal loss. Among the 
 decisions determining what losses constitute special damages are the 
 following: Defamation of a female's reputation resulting in her dejec- 
 tion of mind, and loss of health and consequent inability to attend to her 
 ordinary business. McQueen v. Fulgham, 27 Tex. 463. But an allega- 
 tion that by means of the words spoken tlie plaintiff has fallen in dis- 
 grace, contempt and infamy and has lost her credit, reputation and 
 
slandek: special damages. 293. 
 
 sortium vicinorum as the phrase goes, is not of itself 
 special damage. A loss of some material advantage must 
 be shown. Defamatory words not actionable per se were 
 spoken of a member of a religious society who by reason 
 thereof was excluded from membership; there was not 
 any allegation or proof that such membership carried with 
 it as of right any definite temporal advantage. It was 
 held that no loss appeared beyond that of consortium vin- 
 cinorum, and therefore there was no ground of action (Z). 
 Yet the loss of consortium as between husband and wife is 
 a special damage of which the law will take notice (m), 
 and so is the loss of the voluntary hospitality of friends, 
 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 tem- 
 poral value for this purpose, but the mere chance of being 
 elected is not : so that an action will not lie for speaking 
 disparaging words of a candidate for a club, by means 
 whereof the majority of the club decline to alter the rules 
 in a manner which would be favourable to his election. 
 *« The risk of temporal loss is not the same as temporal 
 loss " (o). Trouble of mind caused by defama!tory words 
 is not suflBcient special damage, and illness consequent 
 upon such trouble is too remote. " Bodily pain or 
 
 (i) Roberts T. Jioberts (1864), 5 B. & S. (o) Chamberlain v. Boyd (1883), 11 Q. 
 
 384, 33 L. J. Q. B. 249. B. Div. 407 ; per Bowen L. J. at p. 416, 62 
 
 (m) Lynch v. Knight, 9 H. L. 0. 577. L. J. Q. B. 277. The damage was also 
 
 (n) navies v. Solomon (1871), L.B. 7Q. held too remote. 
 B. 112, 41 li. J. Q. B. 10. 
 
 peace of mind, is not the laying of special damages. Woodbury v. 
 Thompson, 3 N. H. 194. Refusal of ciril entertainment at a public 
 house. Olmsted v. Miller, 1 Wend. 506. So, the loss of a contracted 
 marriage. Moody v. Baker, 6 Cow. 361. So, the refusal to provide food 
 and clothing for the plaintiff, by the persons who were in the habit 
 of so doing. Beach v. Ranny, 2 Hill, 309. So, where the plaintiff was 
 turned away from the house of her uncle, where she had been a welcome 
 visitor. Williams v. Hill, 19 Wend. 622; 48 N. Y. 668. See Geisler ». 
 Brown, 6 Neb. 264; Pettibone v. Simpson, 66 Barb. 492. 
 
294 DEFAMATION. 
 
 suffering cannot be said to be the natural result in all 
 persons" (p). 
 
 Imputations of criminal offence. As to the several 
 classes of spoken words that may be actionable without 
 special damage: words sued on as imputing crime must 
 
 (p) AOsop V. Allaop (1860), 5 H. & N. 534, 29 L. J. Ex. 315. 
 
 Imputations ol criminal offence. Generally words which impute a 
 crime punishable with imprisonment are actionable without proof of 
 special damage. Banger v. Goodrich, 17 "Wis. 80; lilbero. Dautemiann, 
 26 Wis. 518; Hillhouse v. Peck, 2 Stew. & P. 295; HoUingswortho. Shaw, 
 19 Ohio St. 430; 2 Am. Rep-. 411; Davis v. Brown, 27 Ohio St. 326; Smith 
 V. Stewart, 5 Pa. St. 372; Parker v. Lewis, 2 Greene (la.), 311; Mnrry v. 
 McAllister, 38 Vt. 167; Dislie v. "Walther, 4 N. T. S. Rep. 385; Widrig v. 
 Oyer, 13 Johns. 124; Van Ness v. Hamilton, 19 Johns. 349; Demarestw. 
 Haring, 6 Cow. 76, 88; Quinn o. O'Gara, 2 E. D. Smith, 388; Case ». 
 Buckley, 15 Wend. 327; Crawford v. "Wilson, 4 Barb. 604; Andrews i;. 
 Hoppenheafer, 3 Serg. & R. 255; Gorham v. Ives, 2 Wend. 534; Alexander 
 V. Alexander, 9 Id. 141; Van Ankin v. Westfall; 14 Johns. 233; Todd u. 
 Rough, 10 Serg. & R. 18 ; Johnson v. Morrow, 9 Port. 525; Eiebs v. Oliver, 
 12 Gray, 239; Burlinghame v. Burlinghame, 8 Cow. 141; Coburn v. Har- 
 wood, Minor, 93; Vickers v. Stoneman, 73 Mich. 419; 41 N. W. Rep. 
 495; Giddens v. Mirk, 4 Ga. 364; Gage v. Shelton, 3 Rich. 249; Young v. 
 Kuhn, 71 Tex. 645, 641; Ellsworth v. Hayes, 71 Wis. 427; Kinney v. 
 Hosea, 3 Harr. (N. J.) 77; Bell v. Fernald, 71 Mich. 267; 88 N. W. Rep. 
 910; Thomas v. Beasdale, 147 Mass. 438; Harris o. Terry, 98 N. C. 131; 
 Rosewater v. Hoffman, 24 Neb. 222; Prosser v. Callis, 117 Ind. 105; 
 Halley v. Gregg, 74 la. 663; Blumhardt v. Rohr, 70 Md. 278; 17 At. Rep. 
 266. 
 
 But such words, to be in themselves actionable, must impute a crime 
 involving moral turpitude, and which is punishable by indictment at 
 common law or by statute. St. Martin o. Desnoyer, 1 Minn. 156; Demar- 
 est V. Haring, 6 Cow. 76; Lewis v. McDaniel, 82 Mo. 677; Lukehart o. 
 Bevej-ly, 53 Pa. St. 418; Wright v. Paige, 36 Barb. 438; Crawford v. Wil- 
 son, 4 Barb. 504; Hoag v. Hatch, 23 Conn. 590; Tonng v. Miller, 3 Hill, 
 22; Smith v. Smith, 2 Sneed (Tenn.), 473; Hendrickson o. Sullivan, 44 
 N. W. Rep. 448; ?8 Neb. 329; Davis, u. Brown, 27 Ohio, St. 326; Gibbs v. 
 Dewey, 5 Cow. 503; Davis o. Sladden, 17 Oreg. 259; 21 Pac. Rep. 140; 
 State V. Burroughs, 2ilalst. 426; 1 Am. Lead. Cas. 113, 3rd ed.; Dial v. 
 Holter, 6 Ohio St. 228; Taylor v. Kneeland, 1 Dougl. (Mich.) 67; Olfele 
 V. Wright, 17 Ohio St. 238 ; Montgomery v. Dooley, 3 Wis. 709 ; Billings 
 V. Wing, 7 Vt. 439 ; Filber v. Dautermann, 26 Wis. 520 ; Downing v. Wil- 
 son, 36 Ala. 717; Sidgreaves v. Myatt, 22 Ala. 617; Iron Age Pub. Co. v. 
 
slander: imputation of crime. 295 
 
 amount to a charge of sonie offence which, if proved 
 against the party to whom it is imputed, would expose him 
 
 Crudnp, 85 Ala. 519; McKinney «. Roberts, 68 Cal. 192; Johnson w_ 
 Shields, 1 Dutch. 118; Kedwayo. Gray, 31 Vt. 292; Coleman u. Playstead , 
 36 Barb. 26; Carroll v. White, 33 Barb. 615; Guard v. Risk, 11 Ind. 166; 
 Robinson v. Keyser, 2 Fost. 323; Ranger c. Goodrich, 17 Wis. 78; Rodgers 
 V. Lacey, 23 Ind. 507; Adams v. Rankin, 1 Duv. 58; Proctor v. Owens, 18 
 Ind. 21; State v. Spear, 13 R. I. 324; MiUer v. Butler, 6 Cush. 72; 
 Bradley v. Cramer, 59 Wis. 309; 48 Am. Rep. 511; Bergmann v. Jones, 
 94 N. T. 51; Carter v. Andrews, 16 Pick. 1; Rea v. Harrington, 58 
 Vt. 181; Massuere v.' Dickens, 70 Wis. 83; Barnett v. Ward, 36 
 Ohio St., 107; Klewin v. Banman, 53 Wis. 244; West v. Hanrahan, 
 28 Minn. 385; Hermann v. Bradstreet Co., 19 Mo. App, 227; Shattuc 
 V. McArthur, 25 Fed. Rep. 133; Qnigley v. McKee, 12 Oreg. 22; 53 
 Am. Rep. 820; Shelby v. Sun Printing & Pub. Co. Ass., 109 N. Y. 611; 
 Stumer v. Pitchman, 124 111. 250; In re MacDonald (Wyo.), 33 Pac. Rep. 
 18; Post Pub. Co. v. Moloney (Ohio), 33 N. B. Rep. 921. 
 . It is sufficient if the words spoken charge an offense which is made 
 criminal by statute. Stallings i;. Whittaker, 55 Ark. 494 ; 18 S. W. Rep. 
 829; Noyes v. Hall, 62 N. H. 594; Bissel v. Cornell, 24 Wend. 354; 
 Spencer v. McMasters, 16 111. 405; Sterling v. Juggenheimer, 69 la. 210; 
 Moberly v. Preston, 8 Mo. 462; Symonds v. Carter, 32 N. H. 458; Bur- 
 ford V. Wible, 32 Pa. St. 95; Stroebel v. Whitney, 31 Minn. 384; Vander- 
 slip V. Roe, 23 Pa. St. 82; Mayer v. Schleichter, 29 Wis. 646; Ranger 
 V. Goodrich, 17 Wis. 78; Montgomery v. Deeley, 3 Wis. 709; Gibsons. 
 Gibson, 43 Wis. 22; Truman v. Taylor, 4 la. 425; Wilson v. Beighler, i 
 la. 429 ; Healey v. Gregg, 74 la. 563. 
 
 In the leading case of Brooker v. Coffin (5 Johns. 188 ; s. c. Bigelow 
 Lead. Cas. on Torts, 7,7), the following test of the sufficiency of the 
 charge was established : — 
 
 " In case the charge, if true, will subject the party charged to an indict- 
 ment for a crime involving moral turpitude, or subject him to infamous 
 punishment, then the words are themselves actionable." See Wilson v. 
 McCrory, 86 Ind. 170; Rundell v. Butler, 7 Barb. 260; ZelifE v. Jennings, 
 61 Tex. 458; Garrett v. Dlckerson, 19 Md. 418; Carmichael v. Shiel, 21 
 Ind. 66 ; Caiss v. Anderson, 33 Vt. 182 ; Dorland v. Patterson, 23 Wend. 
 422; Walton v. Singleton, 7 Serg. & B. 449; Stroebel v. Whitney, 31 
 Minn. 384; Lewis v. Hudson, 44 Qa. 568; Proctor u. Owens, 18 Ind. 21. 
 
 Even an allusion to some extrinsic fact may become actionable. Hays 
 V. Mitchell, 7 Blackf. 117. See McDonald v. Press Pub. Co., 66 Fed. 
 Rep. 264. 
 
 So, where words are spoken by way of interrogation. Hotchkiss v. 
 Oliphant, 2 Hill, 510; Sawyer v. Eifert, 2 Nott. & M. 511. 
 
 Or by Innuendo. Sewell v. Catlin, 3 Wend. 291 ; Gorham v. Ives, 2 Id. 
 634; Gibson ». Williams, 4 Id. 320; Rundel v. Butler, 7 Barb. 260 ;« May- 
 
296 DEFAMATION. 
 
 to imprisonment or other corporal penalty (not merely to 
 a fine in the first instance, with possible imprisonment in 
 
 son V. Sheppard, 12 Rich. 254; McEennon v. Greer, 2 Watts. 352; Dott- 
 over V, Bushey, 16 Pa. St. 204. 
 
 It is not essential that the words charge a felony. Lemons v. Wells, 
 78 Ky. 117. 
 
 For-words merely disclosing a suspicion in the mind ot the speaker 
 
 that a person is guilty of a felony no action lies without proof of 
 
 special damages. Dickson v. Phillips, 51 N. T. Superior Ct. 162 ; Dickey v. 
 
 Andros, 32 Vt. 55; Smith v. GafEard, 31 Ala. 45; Campbell v. Bannister, 
 
 '79 Ky. 205. 
 
 Words which only impute a criminal intent are not actionable but 
 those charging an attempt to commit a crime are actionable. McEee v. 
 Ingalls, 5 m. 30; Seaton v. Codray, Wright, 101; Wilson v. Tatum, 8 
 Jones L. 300. 
 
 No action lies for spoken words imputing a crime which it is not pos- 
 sible for the person charged to commit. Carter v. Andrews, 16 Pick. 1 ; 
 Ogden V. Eiley, 14 N. J. 186; UnderhUl v. Welton, 32 Vt. 40; Dexter v. 
 Taber, 12 Johns. 239; McCaleb v. Smith, 22 la., 242; Trabue v. Mays, 3 
 Dana, 138; Edgerly v. Swain, 32 N. H. 478; Ayres v. Grider, 15 111. 37. 
 
 The words need not necessarily bear a criminal import. Stroebel v. 
 Whitney, 31 Minn. 384; Campbell v. Campbell, 54 Wis. 90. Nor need 
 the judicial proceedings in which imputed perjury occurred have really 
 existed. Bricker v. Potts, 12 Pa. St. 200; Holt o. Turpin, 78 Ky. 433. 
 
 Charges AcUonable per se. The following examples of spoken words 
 imputing crime which are actionable per se may prove of value as illus- 
 trative ot the application of the foregoing general rules : 
 
 '•' I know enough that he has done to send him to the penitentiary." 
 Johnson v. Shields, 1 Dutch. 116. 
 
 "You have altered the marks of four of my hogs." Perdue v. 
 Burnett, Minor (Ala.), 138. 
 
 " He tried to steala dog but could not." Berdeaux v. Davis, 68 Ala. 611. 
 
 "He Is the best hand at stealing sheep I ever saw. He stole P.'s 
 sheep." Herman v. Cundiff, 82 Va. 239. 
 
 "You thief! &c." Frollch v. McKierman, 84 Cal. 177; 24 Pac. Rep. 
 114. See Savoie v. Scanlan, 43 La. An. 963; 9 So. Rep. 916; Roberts v. 
 Ramsey, 86 Ga. 482; 12 S. E. Rep. 644. So, to say of a woman to her 
 employer, " what are you dicing with that nine dollar blackmailer here." 
 Hess V. Sparks, 44 Kan. 465 ; 24 Pac. Rep. 779. So, to charge one with 
 having committed perjury. Gudger «. Penland, 108 N. C. 593; 13 S. E. 
 Rep. 168; Ward v. Clark, 2 Johns. 10; Schmidt v. Witherick, 29 Minn. 
 156; Crone v. Angell, 14 Mich. 340; Spooner v. Keeler, 61 N. Y. 527; 
 Coons V. Robinson, 3 Barb. 625; Gilman v. Lowell, 8 Wend. 673; Sher- 
 wood V. Chace, 11 Wend. 38. 
 
 So, to charge one with burning his own property to defraud the insur- 
 
slander: imputation of crime 297 
 
 default of payment) (q). The offence need not be speci- 
 fied with legal precision, indeed it need not be specified at 
 all if the words impute felony generally. But if particu- 
 lars are given they must be legally consistent with the 
 ofience 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 fradulently 
 converted them to his own use. The practical inference 
 seems to be that minute and copious vituperation is safer 
 than terms of general reproach, such as "thief," inas- 
 much as a layman who enters on details will probably make 
 some impossible combination. 
 
 It is not a libel as against a corporation (though it may 
 be as against individual members or officers) to charge the 
 body as a whole with an offence which a corparate body 
 cannot commit (s). 
 
 (9) This is the tine distinction: it 188, BigelowL. 0.77, 80; latex authoiitiea 
 
 matters not whether the offence be ap. Cooley on Torts, 197. 
 indictable or punishable b7 a conrt of (r) Jacksonv. Adams OSSS),%^lne.'S 
 
 summary jurisdiction : Webb v. Beavan C. 102. The words were " who stole the 
 
 (1883), 11 Q. B. D. 609, 52 L. J. Q. B. fi44. parish bell-ropes, youscampingrasoal?" 
 
 In the United States the received opinion If spoken while the plaintiff held the' 
 
 is that such words are actionable only office, they would probably have been 
 
 " in case the charge, if true, will subject actionable, as tending to his prejudice 
 
 the party charged to an indictment for therein. 
 
 a crime involving moral turpitude, or (s) Mayor of MamcJiester v. Williams, 
 
 subject him to kn infamous punish- '91, 1 Q. B. 94, 60 L. J. Q. B. 23. 
 ment : " BrooTter v. Coffin (1809) , 5 Johns. 
 
 ance company. Davis v. Carey, 8 Pa. Co. Ct. Eep. 578; 21 Ap. Rep. 363; 
 28 W. N. C. 10; House v. House, 5 Har. & J. 125. 
 
 Charges not actionable per se. Among examples of slanderous charges 
 which are not actionable per se, are such as to say: "You will steal." _- 
 Bays V. Hunt, 60 la. 251. Or "you have took my pocket book and have 
 it in your pocket." Cbristal v. Craig, 80 Mo. 367. Or, of a woman, that 
 she is a " bitch " or " slut." Eoby v. Murphy, 24 111. App. 394. 
 
 Words which do not amount to an imputation of a crime are not 
 actionable j>er se. Dorsey v. Whipps, 8 Gill, 355, 154; Brace v. Brink, 33 
 Mich. 91; Winter v. Sumwalt, 3 Har. & J. 38; Parmer v. Anderson, 33 
 Ala. 78; Casselman v. Winship, 3 Dako. 292; Melvin v. Weiant, 36 Ohio 
 St. 184; 38 Am. Eep. 572: Curry v. Collins, 37 Mo. 324; Ford v. .Tohnfeon, 
 21 Ga. 399; Bays v. Hunt, 60 la. 251; Adams v. Stone, 131 Mass. 433; 
 Bock V. McClaron, 95 Ind. 415. 
 
298 DEFAMATION. 
 
 Other charges o£ mere immorality not actionable. 
 Slander of Women Act. False accusation of immorality 
 or disreputable conduct not punishable by a temporal court 
 is at common law not actionable per se, however gross. 
 The Slander of Women Act, 1891 (54 & 55 Vict, 
 c. 51), has abolished the need of showing special 
 damage in the case of "words . . . which impute 
 \unchastit3^ or adultery to any woman or girl." The 
 bourts might without violence have presumed that a 
 man's reputation for courage, honour, and truthful- 
 ness, a woman's for chastity and modest conduct, was 
 something of which the loss would naturally lead to 
 damage in any lawful walk of life. But the rule was 
 otherwise (t), and remains so as regards all slander of this 
 kind against men, and against women also as regards all 
 charges of improper conduct short of unchastity, which y&t 
 
 (i) The technical reason was that tlaaXConit Rating pro salute animae. See 
 
 charges of incontinence, heresy, etc., Davisy. Gardiner, iCo. Rep. leb; Palmer 
 
 were " spiritual defamation," and the v. Thorpe, ib. 20 a. 
 matter determinable In the Eccleslas- 
 
 Imputing unobastlty to a female. It is a rule of the common law 
 that to charge a female with unchastity, even with being a common pros- 
 titute, is not actionable without proof of special damages. Broober v. 
 Coffin, 5 Johns. 188, supra; Keller o. Lessford, 2 Cranch, 190; McQueen 
 V. Fulgham, 27 Tex. 463; Linney v. Maton, 13 Id. 449; Pollard v. Lyon, 
 91 U. S. 225; Terwilliger v. Wands, 17 N. Y. 54; Wilson v. Goit, 17 Id. 
 442; Woodbury v. Thompson, 8 N. H. 119; Stanfleld v. Boyer, Har. & J. 
 248; Simpson v. Pettibone, 66 Barb. 492. 
 
 But in those States where fornication is made indictable and punish- 
 able, by statute, the decisions are uniform in holding charges of unchas- 
 tity to be slanderous for the reason that such imputations thus become, 
 by statute, a charge of a crime. Klewin v. Bauman, 53 Wis. 244 ; Bodgers 
 V. Lacey, 23 Ind. 508; Linney ». Maton, 32 Vt. 40; Bradt. v. Towsley, 13 
 Wend. 253 ; Ranger v. Goodrich, 17 Wis. 80 ; Snediker !^. Poorbaugh, 29 la. 
 488; Pledgers. Hathcock, 1 6a. 550; Kelly v. Flaherty, 16 R. I. 234; 14 
 At. Rep. 876; Smiths. Silence, 4 la. 321; Pink v. Catnick, 51 Cal. 420; 
 Nidover v. Hall, 67 Cal. 80; E'reeraan v. Saunderson, 123 Ind. 264; 24 N. 
 B. Rep. 239; Henderson v. Sullivan, 28 Neb. 329; 44 N. W. Rep. 448; 
 Noyes v. Hall, 62 N. H. 594; Indianapolis Journal Nwp. Co. v.Pugh (Ind. 
 App.), 33 N. E. Rep. 991. 
 
slander: imputation of disease. 299 
 
 may sometimes be quite as vexatious, and more mischievous 
 because more plausible. The law went wrong from the 
 beginning in making the damage and not the insult the 
 cause of action ; and this seems the stranger when we have 
 seen that with regard to assault a sounder principle is well 
 established (m). 
 
 A person who has committed a felony and been con- 
 victed may not be called a felon after he has undergone 
 the sentence, and been discharged, for he is then no longer 
 a felon in law (u)r 
 
 Imputations of contagions disease. Little need be 
 said concerning imputations of contagious disease unfitting 
 a person for society: that is, in the modern law, venereal 
 disease (x). The only notable point is that " charging 
 another with having had a contagious disorder is not 
 
 (u) p. 196, aboTe. (3;) Leprosy and, it is said, the plague, 
 
 («) ic2/iraa»v. iaiinser (1887), 3 Ex. Div. were In the same category. Small-pox 
 352, 47 L. J. Ex. 470. ' Is not. See Blake Odgers 64. 
 
 Imputations ot contagious disease. Spoken words charging one 
 with having a loathsome disease, which imputation if believed would 
 exclude such one from society, are actionable per se. Williams v. Hold- 
 ridge, 22 Barb. 396 ; Goldermau v. Stearns, 7 Gray, 181 ; Ghaddocb v. 
 Briggs, 13 Mass. 248; Joannes v. Burt, 6 Allen, 236; 83 Am. Dec. 625; 
 Irons V. Fields, 9 E. I. 216; Kauch v. Blinn, 29 Ohio St. 62; 23 Am. Rep. 
 737; Bruce v. Soule, 69 Me. 562; Bloss v. Tobey, 2 Pick. 320; Hewit v. 
 Mason, 24 How. Pr. 3'66. 
 
 The only diseases that have been adjudged loathsome, in this sense of 
 the term, are of the plague, leprosy and venereal disorders. Upton v. 
 Upton, N. Y. Supreme Ct. 936; Watson v. McCarthy, 2 Ga. 57; 47 Am. 
 Dec. 380 ; and authorities cited supra. 
 
 Judge Cooley in his treatise on the Law; of Torts (2nd ed., p. 235), 
 says : " What diseases would be embraced within this rule is not certain 
 but it is probable that at the present day only those which are conta- 
 gious or infectious, and which are usually brought upon one by disreput- 
 able practices; and the list would perhaps be limited to venereal 
 diseases." , 
 
 To be actionable within themselves the words must impute a contin- 
 uance of the disorder at the time of speaking. Pike v. Van Wormer, 5 
 How. Pr. 171, and authorities cited supra. 
 
300 DEFAMATION. 
 
 actionable ; for unless the words spoken impute a continu- 
 ance 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 society " (y). There does not seem 
 to be more than one reported English case of the kind 
 within the present century (z). 
 
 Evil speaking of a man in the way of his business. 
 
 Concerning words spoken of a man to his disparagement 
 
 (y) Carslake T. Mapledoram <1788), Gr. 334. The whole of the- jadgment 
 
 ^ T. B. 473, Bigelow L. C. 84, pex Ash- xuns thus: " This case falls within the 
 
 hnrat J. principle of the old authorities." 
 
 (.z) Bloodworth v. Gray (1844), 7 M. & 
 
 Evil speaking of a. man in the way of his business. Defamatory 
 words spoken of a person in relation 'to his trade, profession or office 
 are actionable per se; provided, they are spoken while he is following 
 such trade or profession or holding such office. McKenzie v. Denver 
 Times Pub. Co. (Colo. App.), 34 Pac. Eep. 577; Kinner v. Grant, 12 Vt. 
 456; Davis V. Davis, 1 Nott. & M. 290; Ostrom v. Calkins, 5 Wend. 263; 
 Williams v. Davenport, 43 Minn. 393; 44 N. W. Rep. 311; Lotto v. Same, 
 42 Minn. 895 ; 44 N. W. Rep. 31 ; Morasse v. Brochu, 151 Mass. 567 ; 25 N. 
 B. Rep. 74; McKee v. Wilson, 87 N. C. 300; Brown v. Mlms, 2 MUl Const. 
 235; Beck v. Stitzel, 21 Pa. St. 622; Fitzgerald v. Redfield, 51 Barb. 484; 
 Rammell v. Otis, 60 Me. 365; Craig y. Brown, 5 Blackt. 44; Seely ». 
 Blair, Wright, 358; Buck ». Hersey, 31 Me. 568; Decker v. Shepherd, 22 
 Md. 399; Windsor v. Oliver, 41 Ga. 638; Harris v. Bailey, 8 N. H. 216; 
 Allen V. Hillman, 12 Pick. 101; Brown v. Vannaman (Wis.), 55 N. W. 
 Eep. 183 ; Lapham v. Noble, 54 Fed. Bep. 108. ' 
 
 Attorney. To say of an attorney at the time he is engaged in the trial 
 of a case, " Yon are the dirty sewer through which all the slums of this 
 embezzlement have flowed," is actionable without proof of special dam- 
 ' ages. Mains v. Whiting, 87 Mich. 172; 49 N. W. Eep. 559. 
 
 So, to call an attorney "a cheat." Rush v. Cavanaugh, 2 Pa. St. 187. 
 Or, to say that an attorney " will take fees on both sides of a case." 
 Chipman v. Cook, 2 Tyler, 456; or, that an attorney is particularly in- 
 competent. Mattice v. Wilcox, 59 Hun, 620; 13 N. Y. S. Eep. 330; or, to 
 call an attorney " shyster." Gribble v. Pioneer Press Co., 34 Minn. 342. 
 Or, to charge that an attorney will betray his clients' secrets and over- 
 throw their cause. Garr v. Seldeu, 6 Barb. 416 ; Foot v. Brown, 8 Johns. 
 64 ; Eiggs V. Denniston, 3 Johns. Cas. 198. 
 
 Glerk. To impute incompetency, dishonesty or special unfitness to a 
 
slandee: in office or business. 301 
 
 in his office, profession, or other business : they are action- 
 able on the following conditions : — They must be spoken of 
 
 clerk is actionable per se. Wilson v. Cottmau, 65 Md. 190; Fowles v. 
 Bowen, 30 N.'Y. 20; Ware v. Clowney, 24 Ala. 707. 
 
 Clergyman. Calling a preacher " a druntard " is slanderous per se. 
 McMillian v. Birch, 1 Binn. 178. See Hayner v. Cowden, 27 Ohio St. 
 292; 22 Am. Kep. 303; Chaddock v. Brlggs, 13 Mass. 248; Bucks. Hersey, 
 31 Me. 558; O'Hanlon v. Myers, 10 Rich. 128. 
 
 Physician. To say of a physician, that " he has killed six children in 
 one year" is slander per se. Carroll v. White, 33 Barb, 615; 42 N. Y. 
 161. Or, "he is no good, only a butcher, I would not have him for a 
 dog!" Cruikshank v. Gorden, 118 N. Y. 178; 23 N. E. Rep. 457. Or, 
 that a physician caused the death of a patient through his ignorance or 
 culpable negligence. Foster v. ScHppes, 39 Mich. 376 ; Secor v. Harris, 
 18 Barb. 425. See Sumner v. Utley, 7 Conn. 258 ; Camp v. Martin, 23 
 Conn. 86; Foster ». Small, 3 Whart. 138; Lynde v. Johnston, 39 Hun, 12; 
 Rodgers v. Kline, 56 Mass. 808; Hargan v. Purdy (Ky.), 20 S. W. Rep. 
 432. 
 
 But it is not actionable to say that a physician destroyed the life of a 
 patient by mistake, but legal and well meant efforts to save his life. 
 March v. Davison, 9 Paige, 580. Or, to give as an opinion that a physi- 
 cian gave medicine to another which caused the death of the latter. 
 Jones V. Diver, 22 Ired. 184. 
 
 Public Officer. Spoken words which impute to a person a want of 
 capacity or integrity in office or which are calculated to diminish 
 public confidence in him are actionable per se. Russell v. Huthony, 21 
 Kan. 450; State v. Schmidt, 49 N. J. L. 579; Kinney v. Nash, 3 N. Y. 177; 
 Spiering v. Andrews, 45 Wis. 332; Knight u. Blackford, 3 Mackey, 117; 
 Am. Rep. 772; Maises?;. Thornton, 8 Tenn. Rep. 303; Lansing ??. Carpen- 
 ter, 9 Wis. 640; Truth Pub. Co. v. Reed, 13 Ky. Law-R. 323. As to 
 charge a sheriff with malpractice in office. Dole v. Van Rensselaer, 1 
 Johns. Cas. 330. Or, a town clerk with destroying votes at an election. 
 Dodds V. Henryj 9 Mass. 262. 
 
 Spoken words are not actionable without proof of special damages, if 
 relative to the discharge of official duties, where the office has ceased at 
 the time of the speaking of the words. Forward v. Adams, 7 Wend. 
 204. Nor, are words spoken of a magistrate unless he is described as a 
 magistrate. McGuire v. Blair. 
 
 To say of a legislator who has changed his opinion, that " sometimes 
 the change of heart comes from the pocket," is not actionable pci" se. 
 Sillars v. Collier, 151 Mass. 50; 23 N. E. Rep. 723. 
 
 So are words spoken of a candidate which cause others to not vote for 
 him at an election. Brewer v. Weakley, 2 Overt. 99. See Seely v. Blair, 
 Wright, 358, 683; Burke v. Mascarich, 81 Cal. 302; 22 Pac. Rep. 673; 
 Field V. Colson (Ky.), 20 S. W. Rep. 264. But it is not actionable, with- 
 
302 DEFAMATION 
 
 him in relation to or " in the way of " a position which he 
 holds,- or a business he'caries 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 believed, it would tend to the loss of the 
 party's employment or business. To call a stonemason a 
 " ringleader of the nine hours 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 actionable, as na- 
 turally tending, if believed, to the party's deprivation 
 or other ecclesiastical censure in the one case, and dis- 
 missal in the other. Of a clerk or messenger, and even 
 
 (a) MiUer v. David (1874) , L. E. 9 C. P. 118, 43 L. J. 0. P. 84. , 
 
 out proof of special damages, to impute weakness of understanding to a 
 candidate for Congress. Mayrant v. Bichardson, 1 Nott. & M. 347. Or 
 to call such a candidate "a corrupted old tory." Hogg v. Dorrah, 2 
 Port. 212. 
 
 IVader. To say of a drover, who buys and sells cattle, that " he is a 
 bankrupt, and not able to pay his just debts" is actionable without 
 alleging special damages. Lewis v. Hawley, 2 Day, 495. Or, that a 
 merchant cannot pay his debts and does not deserve credit. Sewell v. 
 Catlin, 3 Wend. 291; Mott v. Oomstock, 7 Cow. 654. See 6 Lawy. Rep. 
 Ann. 643, note; Mitchell v. Bradstreet Co. (Mo.), 22 S. W. Rep. 358. 
 
 Other instances. To say of a man in reference to his business that he 
 is a notorious liar and dishonest, is actionable per se. Fowles v. Bowen 
 30 N. Y. 20. So it is to say of a blacksmith that " he keeps false books," 
 of his business. Burtch v. Nickersdn, 17 Johns. 217. But not to charge 
 a person with keeping false books of account unless a credit business is 
 done. Rathburn v. Emigh, 6 Wend. 407. Or, to say that a plaintiff is a 
 "loafer" and a "pimp" and "don't understand his business " that 
 his wife is not virtuous, and to threaten to ruin him. Flatow o. Von 
 Bremsen, 19 Civil Proc. R. 125, 131; 11 N. Y. S. Rep. 680. 
 
slander: in office ok business. 303 
 
 of a medical man, it is otherwise, unless the imputation 
 is in some way specifically connected 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 (b ). 
 
 It makes no difference whether the office or profession 
 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 a barrister or a fellow of the College of Phy- 
 sicians; but where there is no profit in fact, an oral charge 
 of unfitness is not actionable unless, if true, it would be a 
 ground for removal (66). 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 employment 
 or office, has undertaken. A gamekeeper may have an 
 action against one who says of him, as gamekeeper, that he 
 trapped foxes (d). As regards the reputation 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). 
 
 Words indirectly causing damag^e to a man in Ms 
 business. There are cases, though not common in our 
 
 (6) DoyUfji T. Eoberts (1837), 3 Bing. N. (d) Foulger v. iTewcomb (1867), L. K. 2 
 
 0. 835, and anthoritlee there cited. Ex. 327, 36 L. J. Ex. 169. 
 
 (bb) Alexander v. Jenkins, '92, 1 Q. B. (e) Blake Odgers 80 ; Shepheard t. 
 
 797, C. A. Wliitalcer (1875) , L. E. 10 0. P. 602. 
 
 (c) L. E .2 Ex, at p. 330. Vide, Johnson 
 V. Slmonton, 13 Gal. 242. 
 
304 DEFAMATION. 
 
 books, 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 ser- 
 vant dwelling at his place of business is charged with mis^ 
 behaviour, and the credit of the business is thereby 
 impaired. In such a case an action lies, but is not, it 
 seems, properly an action of slander, but rather a special 
 action (on the case in the old system of pleading) analo- 
 g«us 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 tbiis kind (/). On principle the conditions 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 defama- 
 tion), 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 damage as in fact 
 ensued. 
 
 ^ 
 
 2. — JDefamation in general. 
 
 Bules as to defamation generally. We now pass to 
 the general law of defamation, which applies to both 
 slander and libel, subject, as to slander, to the conditions 
 
 (/) Biding v. Smith (1876), 1 Ex. D. 91, 45 L. J. Ex. 281; see Mr. Blake OdgerB 
 and Mr. J . D. Mayne thereon. 
 
 Slander ol property used in business. One may be as seriously 
 Injured by the disparagement of his property connected with the business 
 in which he Is engaged as by the slander of himself in respect to his 
 business. Snow v. Judson, 38 Barb. 210, supra, S. P., Gott v 
 Pulsifer, 122 Mass. 235; 23 Am. Rep. 322; Swan v. Tappan, S Gush. 104; 
 Boynton v. Shaw Stocking Co., 146 Mass. 219; Weir v. Allen, 51 N. H. 
 171 ; Watson v. Trask, 6 Ohio, 531 ; 27 Am. Dec. 271 ; Paul v. Halferty, 63 
 Pa. St. 46. 
 
SLANDER : IMPLIED MALICE. 305 
 
 and distinctions we have just gone through. Considera- 
 tions of the same kind may affect the measure of damages 
 for written defamation, though not the right of action 
 itself. 
 
 "Implied malice." It is commonly said that defama- 
 tion to he actionable must be malicious, and the old form 
 
 Implied malice. In the leading libel case of King v. Root (i Wend. 
 114 ; 21 Am. Dec. 102) It was held, that the term maliciously, means 
 intetitionally and wronglully, without legal excuse. See Haley v. State, 
 63 Ala. 83. 
 
 Malice in uttering false statements may consist either in direct inten- 
 tion to injure another, or in a reckless disregard of his rights and the 
 consequences that may result to him. Gott v. Pulsifer, 122 Mass. 239'; 
 Commonwealth o. Bonner, 9 Mete. ilO; Broughton v. McGrew, 39 Fed. 
 Rep. 672. See Commonwealth v. Snelling, 15 Pick. 340; Lewis v. Chap- 
 man, 16 N. T. 372; Wilson v. Noonan, 35 Wis. 353; Liles v. Gaster, 42 
 Ohio St. 646. 
 
 Implied malice is inferred from the falsity of the charge, or when the , 
 words are actionable ^er se. It is not necessary to prove express malice, j 
 Yeates v. Read, 4 Blackf. 463; 32 Am. Dec. 463; Byrket v. Monohan, 7 
 Blackf. 83; 41 Am. Dec. 212; Trabue v. Mays, 3 Dana, 138; 28 Am. Dec. 
 61; Smart v. Blanchard, 42 N. H. 37; Estes v. Autrobus, I Mo. 140; 13 
 Am. Dec. 496 ; True v. Plumley, 36 Me. 466 ; Humphries v. Parker, 52 
 Me. 506; Zuckerman ;;. Sonnenschein, 62 111. 115; McEee v. Ingals, 4 
 Scam. 30; Usher v. Severence, 20 Me. 19; Dixon v. AUeu, 69 Cal. 528; 
 MicheU v. MilhoUand, 106 111. 179'; Hagan v. Hendry, 18 Md. 177; Fry v. 
 Bennett, 5 Sandf. 54; Boullemet v. Phillips, 2 Rob. (La. J 365; Gilbert v. 
 Palmer, 8 La. An. 130; Croausdale v. Bright, 6 Roust. 62; Harris v. 
 Zanone, 93 Cal. 69; 28 Pac. Rep. 845; Brueshaber v. Hertling, 78 Wis. 
 498; 47 N. W. Rep. 725; Smith v. Rodecap, 31 N. E. Rep. 479; Kent ». 
 Bougartz, 15 R. I. 72; Weil v. Schmidt. 28 Wis. 139; Curtis v. Mussey, 
 8 Gray, 261; McKinley ». Rob, 20 Johns. 351; Massuere u. Dickens, 70 
 Wis. 83; Wynne v. Parsons, 67 Conn. 73; Mosier v. Stole, 119 Ind. 244; 
 Hudson 0. Garner, 22 Mo. 433; Gaul v. Fleming, 10 Ind. 253; Parker v. 
 Lewis, 2 Greene (la.), 311 ; Hatch v. Potter, 7 111. 725^ Indianapolis Sun «• 
 Horrell, 53 Ind. 6^7; Bergman o.Jones, 94 N. W. 51. And belief in the 
 truth of the charge, and the absence of ill-will toward the defendant, 
 cannot be shown as a defence to an action for defamation. Wozelka v. 
 Hettrick, 93 N. C. 10; Lick v. Owen, 47 Cal. 262. 
 
 It is a rule that the right to damages follows consequentially the 
 utterance of the words actionable in themselves, because it is the inevi- 
 table tendency of such words to injure the person of whom they are 
 spoken. To constitute malice in law it is not necessary to show by 
 
 20 
 
3U6 DEFAMATION. 
 
 of pleading added " maliciously" to "falsely." What- 
 ever may have been the origin or the original meaning of 
 this language {g), malice in the modern law signifies 
 neither more nor less, in this connexion, than the absence 
 of just cause or excuse (A); and to say that the "law implies 
 malice from the publication of matter calculated to convey 
 an actionable imputation is only to say is an artificial form 
 that the person who so publishes is responsible for the 
 natural consequences of his act (»). " Express malice " 
 means something diflFerent, of which hereafter. 
 
 AVhat is publication. Evil-speaking, of whatever 
 kind, is not actionable if communicated only to the person 
 spoken of. The cause of action is not insult, but proved 
 
 Ig) See Bigelow L. C. 117. canse or excuse : " so too Littledale J. 
 
 (ft) Bayley J. B^omage t. Frosser in McPlierson v. Itaniels (1820), 10 B. & G. 
 
 (1826), 1 B. & C. al p. 253, Bigelow L. C. 272. 
 
 137 : " Malice in common acceptation (i) Lord Blackburn In Capital and 
 
 means ill-will against a person, but in Counties Bank v. BeiUy (1882), 7 App. Ca. 
 
 its legal sense it means a wrongful 787, 52 L. J. Q. B. 232. 
 act done intentionally without just 
 
 direct proof an intention to Injure the plaintiff. Rodgers o. Kline, 56 
 Miss. 808; Burt i;. McBain, 29 Mich. 260; Bodwell ». Ossood, 3 Pick. 
 384; Eviston v. Cramer, 64 Wis. 220; Johnson v. Robertson, 8 Port. 489; 
 Hatch ». Patten, 2 Gilm. 728. 
 
 Whart is publication. Publication is the communication of defam- 
 atory words to some third person or persons. Defamation is punishable 
 for the reason that it is injurious to one's reputation. But no such 
 Injury is done when the words are uttered only to the person concerning 
 whom they are spoken, no one else being present or within hearing. Or 
 when any written or printed communication addressed to one person is 
 put in the possession of that person without its contents being made 
 known to any other person before delivering to the one to whom It Is 
 addressed. See Black's Law Die, p. 965; Delaware etc. Ins. Co. v. 
 Croasdale, 6 Houst. 181; Davis v. Werden, 13 Gray, 305. 
 
 It is sufficient if the defamation is made known to a single person. 
 Adams v. Lawson, 17 Gratt. 257. 
 
 It is not necessary that there be a visible presence of another or others 
 at the time slanderous words are spoken to render such words actiona- 
 ble, but ,lt Is sufficient if such words were heard and understood by 
 another or others. Desmond v. Brown, 33 la. 15. 
 
 So, on the other hand, -it would not constitute slander if defamatory 
 
PUBLICATION. 307 
 
 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 wrong- 
 words were spoken In the visible presence of a person who could not 
 hear the words, because of the distance between him and the person 
 speaking. And this is true although- such words be spoken in a public 
 place. Sheffll v. Van Deusen, 13 Gray, 1037. Compare Giles v. State, 6 
 Ga. 276. 
 
 To allege merely that one " printed " a libel is not a sufficient allega- 
 tion of publication. Sproul v. Pillsbury, 72 Me. 20; S. P., Prescott ». 
 Fonsey, 50 N. Y. Superior Ct. 12. 
 
 The distribution of pamphlets was held to constitute publication in 
 Woods V. Wlman, 122 N. Y. 445 ; 25 N. E. Kep. 919. See Warnock v. 
 Mitchell, 43 Fed. Eep. 428. 
 
 A civil action lies against the seller for every sale or delivery of a 
 libellous publication, and the onus is on him to prove that he was igno- 
 rant of its contents. Every such sale is a fresh publication. Thorn p. 
 Moses, 1 Denio, 488 ; Staub ». Van Benthuysen, 36 La. An. 467 ; Com- 
 monwealth v. Blanding, 3 Pick. 304; Belo v. Wren, 63 Tex. 723. 
 
 A letter is not a publication until it is read by or in the presence of a 
 third person or persons. The mere sending of a sealed letter containing 
 libellous matter to the party defamed, will not support a civil action. 
 Spaits V. Poundstone, 87 Ind. 523; Lyle «. Clason, 1 Caines, 581. Com- 
 pare RoUand v. Batchelder, 84 Va. 664; 5 S. E. Eep. 695. 
 
 Where two persons having participated in the composition of a libel- 
 lous letter written by one of them, which was afterwards put in the post- 
 office, and sent by mail to the person to whom it was addressed; such 
 participation was held to be competent and sufficient evidence to prove 
 the publication by both. Miller v. Butler, 6 Cush. 72. 
 
 Where a letter was written by one person to another containing libel- 
 lous statements relative to a third person the libel was published. 
 Young ». Clegg, 93 Ind. 371; Gough v. Goldsmith, 44 Wis. 262; 28 Am. 
 Eep. 579; Fowles v. Bowen, 30 N. Y. 20. 
 
 In the case of Snyder v, Andrews (6 Barb. 43), it was held that where 
 a writer of a letter, containing libellous matter, reads the same aloud to 
 a stranger, it was a publication. S. P., McCombs ». Tuttle, 5 Blackf . 432. 
 
 The responsibility of the writer of a private letter, for the publication 
 of a libel contained therein, is not limited to the consequences of a com- 
 munication of it to the person to whom the letter is addressed, but ex- 
 tends to the probable consequences of thus putting it in circulation. 
 Miller v. Butler, 6 Cash. 72. 
 
 To prove the publication of a libel written In a foreign language it 
 must be shown that it was read by some one, other than the plaintiff, 
 who understood such language. K v. H , 20 Wis. 239. See Mie- 
 
308 DEFAMATION. 
 
 ful act is technically called publication. It need not amount 
 to anything like publication in the common usage of the 
 word. That an open message passes through the hands of 
 a telegraph clerk {j ), or a manuscript through those of a 
 compositor in a printiog-office {k), or a letter dictated by 
 a principal is taken down in shorthand and type-written by 
 a clerk (Z)> is enough to constitute a publication to those 
 persons if they are capable of understanding the matters 
 so delivered to them. The opening of a letter addressed 
 to a firm by a clerk of that firm authorized to open letters 
 is a publication to him {I). Every repetition of defama- 
 tory 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 publication ( m). It appears on the whole that if the 
 defendant has placed defamatory matter within a person's 
 reach, whether it is likely or not that he will attend to the 
 meaning of it, this throws on the defendant the burden of 
 proving that the paper was not read, or the words heard by 
 that person ; but if it is proved that the matter did not 
 
 (j) See Williamson \. Freer (I87i),L. Arabic or Chinese, or the message In 
 
 B. 9 C. P. 393, 43 L. J. C. P. 161. cipher. 
 
 , (ft) Printing Is lor this reason prima (I) Pullman v. mu ^ Co., '91, 1 Q'. B. 
 
 facie&VTMtc&tion. JialdmnY. Blphimton, 621, 60 L. J, Q. B. 299, C. A. 
 
 2W. Bl. 1037. There are obvious excep- (m) Buhe of Bnmswick v. Harmer 
 
 tlons, as 11 the text to be printed Is (1S49),14Q. B. 185, 191,. J. Q.B. 20. 
 
 lenz V. Qusdorf, 68 la. 727; Kiene v. Euff, 1 Clark (la.), 482; Palmer. c. 
 Harris, 60 Pa. St. 166. 
 
 The printing in a Dutch paper circulated in the United States of a 
 libellous article is a publication. Steketee v. Kinsm, 48 Mich. 322.' 
 I Words spoken bj a husband to a wife, not in the presence of any 
 (Other person, are confidential in law and cannot constitute a publication 
 I within the meaning of the law of slander. Selrer v. Montgomery (Cal.), 
 21 Pac. Rep. 185, reversing 19 Pac. Rep. 686. See People v. Richards, '67 
 Cal. 412. SeeW-ilcoxD.Moon, 17Vt.484; 17 At.Eep.742; 24 At. Rep. 244. 
 But a sealed letter addressed and idelivered to the wife containing a 
 ibel on her husband is a publication. Schenck v. Schenck, 1 Spencer 
 (N. J.), 208. 
 
 \ 
 
PUBLICATION. 309 
 
 come to his knowledge, there is no publication (w). A 
 person who is an unconscious instrument in circulating 
 libellous matter, not knowing or having reason 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 distinguished from the pub- 
 lishers, printers, and owners of newspapers. " A news- 
 paper is not like a fire ; a man may carry it about without 
 being bound to .suppose that it is likely to do an injury " 
 (o). If A. is justified in making a disparaging communi- 
 cation about B.'s chai?acter to C. (as, under certain con- 
 ditions, we shall see that he may be), it would seem upon 
 the tendency andi analogy of the authorities now before us 
 that this will be no excuse if, exchanging the envelopes of 
 two letters by inadvertence, or the like, he does in fact 
 communicate the matter to D. It has been held otherwise 
 (j)), but we do not think the decision is generally accepted 
 as good law: if it is right on principle, the earlier authori- 
 ties on " publication " can hardly be right also. 
 
 Sending a defamatory letter to a wife about her husband 
 is a publication : " man and wife are in the eye of the law, 
 for many purposes, one person, and for many purposes " — 
 6{ which this is one — "different persons" (q). 
 
 Vicarious pnblicatlon. On the general principles of 
 liability, a man is deemed to publish that which is published 
 
 («) Blalce Odgers 154. this case b^ consistent with Pullman v. 
 
 (o) Emmms v. PoUle (1385), 16 Q. B. Hitt f Co., '91, 1 Q. B. S24, 0. A., 60 L. J. 
 
 Div. 334, per Bowen L. J. at p. 358, 55 L. Q. B. 299, though not expressly com- 
 
 • J. Q. B. 61. Bnt it seems the vendor mentcd on by the Court, 
 would be liable il he had reason to know (g) Wemmamf. Ash (ISBS), 13 0. B.8SS, 
 
 that the publication contained, or was 22 L. J. 0. P. 190,per Maule J. But oom- 
 
 lltely to contain, libellous matter. municatlou by the defendant to his wife 
 
 (p) Tompson-7. Das}mood(lSS3i, 11 Q. is not a publication : Wennhaley. Morffcm 
 
 B. D. 43, 52 L. J. Q. B. 425. Qu. whether (1888), 20 Q. B. D. 635, 57 L. J, Q. B. 241. 
 
 yicarious publioations. As a rule the publisher of a newspaper is 
 liable for everything appearing in its columns. Scripps v. Beilly, 38 
 Mich. 10; Buckley v. Knapp, 48 Mo. 152; Storey v. Wallace, 11 111. 51; 
 J-ry V. Bennett, 28 N. Y. 324; Clay v. State, 86 111. 147." 
 
 And this is true, though he was Ignorant of or forbade the publication. 
 
310 DEFAMATION. 
 
 by his authority. And the authority need not be to publish 
 a particular form of words. A general request, or words 
 intended and acted on as such, to take public notice of a 
 matter, may make the speaker answerable for what is pub- 
 lished in conformity to the general " sense and substance " 
 of his request (r). 
 
 / 
 
 (r) Parhes v. Prescott (1869), L. R. i Conrt decide is that verbal dictation or 
 
 Ex. 169, 38 L. J. Ex. 105, Ex. Cb. Whether approval by the principal need not be 
 
 the particalai pnblication is within the shown, 
 aatbority is a question of fact. All the 
 
 Andrews v. Wells, 7 Johns. 260; 5 Am. Dec. 267; Curtis v. Mussey, 
 6 Gray, 260; Dunn v. Hall, 1 Ind. 34:4; Ferret ». Times Newspaper, 
 25 La. An. 170; Commonwealtli v. Morgan, 107 Mass. 199. Contra, 
 "Wheaton v. Beecher, 79 Mich. 443; 44 N. W. Kep. 927; Smith v. Ash- 
 ley, 11 Mete. 367. A journalist cannot protect himself from the- 
 consequences of publishing a libellous article by assurances of its truth- 
 fulness, and by a contract of indemnity from the writer. The parties 
 being joint ivrong-doers, the law will not interfere in aid of either. 
 "The freedom of the press does not consist In lawlessness, or in free- 
 dom from wholesome legal restraint. The publisher of a newspaper 
 has no more right to publish a libel upon an individual, than he or any 
 other man has to make a slanderous proclamation by word of mouth." 
 Atkins V. Johnson, 43 Vt. 82. See Negley v. Farrow, 60 Md. 176. 
 
 One to whom a printing press and a newspaper establishment were 
 assigned has not such a property as will render him liable as proprietor 
 for a libellous publication. McCabe v. Jones, 10 Daly, 222 ; Andres v. 
 Wells, 7 Johns. 260. But a receiver appointed to take charge of a news- 
 paper was held liable for libellous publications in Martin v. Van Schaick, 
 4 Paige, 479. See Dayton ». Wilkes, 17 How. Pr. 510. 
 
 The proprietor of a newspaper as well as the advertiser is responsible 
 for the publication of a libellous advertisement. Boynton v. Bemington, 
 3 Allen, 397. See Robertson ». Bennett, 44 N. Y, Superior Ct. 66; Tier 
 V. Hofflln,,33 Minn. 66 ; 58 Am. Eep. 9. 
 
 He who by words causes another to write or print the thing conveying 
 the libellous matter, may be guilty, as if his own hand traced the lines. 
 But the speaker of words out of which another, of his own motion, com- 
 poses and publishes a libel cannot be charged as the author of the libel. 
 Cochran ». Butterfield, 18 N. H. 117. 
 
 But " one who adopts or recognizes the publication of a libelous 
 article purporting to emanate from him may be liable therefor, though 
 the publication was made by another without his authority." Crousdale 
 V. Bright, 6 Houst. 52. See AUen v. Wortham, 89 Ky. 486 ; Simmons v. 
 Holster, 13 Minn. 259. 
 
INNUENDO. 311 
 
 A person who is generally responsible for publication 
 (such as an editor), and who has admitted publication, is 
 not as a rule bound to disclose the name of the actual 
 author (s). 
 
 Constpuction of words: innuendo. Supposing the 
 authorship of the words complained of to be proved or 
 admitted, many questions may remain. 
 
 The construction of words alleged to be libellous (we 
 
 (s) Gibson v. Evans (1SS9), 23 Q. B. D. 384, 58 JL. J. Q. B. 612. 
 
 Construction of -words. It is now well settled, " that words are to 
 be understood In their plain and natural Import, according to the ideas 
 they are calculated to convey to those to whom they are addressed. In 
 ascertaining the meaning of the speaker, reference must be had to the 
 words used and the circumstances under which they were uttered, and 
 the author is presumed to have used them in the sense which their use is 
 calculated to convey to the minds of the hearers." Roe v. Chitwood, 36 
 Ark. 215; citing Harrison v. Findley, 23 Ind. 265; Rogers v. Lacey, Id. 
 507; O'Conner v. O'Conner, 24 Id. 218. See Castleberry v. Kelly, 26 Ga- 
 606; Wagaman o. Ryers, 17 Md. 187; Stieber v. Wensell, 19 Mo. 513; 
 Hudsono. Garner, 22 Mo. 423; Worth v, Butler, 7 Id. 251; Guard v. Risk, 
 
 11 Ind. 156; Drummond v. Leslie, 5 Blackf. 453; Blickenstaff v. Perrin, 
 27 Ind. 527; Edwards v. San Jose P. & P. Co. (Cal.) 34 Pac. Rep. 128; 
 Buckstaff u. Vial (Wis.), 54 N. W. Eep. Ill; Campbell u. Campbell, 54 
 Wis. 94. , 
 
 " Where words are susceptible of a twofold meaning, it is the province 
 of the jury to determine, frbm the circumstances, in what sense they 
 were uttered and understood. This Is the rational and legal rule as now 
 well established by authority." Deday v. Powell, 4 Bush, 78. See Van 
 Vactor V. Walkup, 46 Cal. 133; Bankine v. Elliott, 16 N. Y. 376; Thomp- 
 son V. Powning, 15 Nev. 212; Snyder v. Andrews, 6 Barb. 43; Sanderson 
 V. Caldwell, 46 N. Y. 398; Clarke v. Fitch, 41 Cal. 480; Mosier v. Stoll, 
 119 Ind. 244; 20 N. E. Eep. 752; Ex parte Bailey, 2 Cow. 479; Patch v. 
 The Tribune Assoc, 38 Hun, 368"; McKinly v. Rob, 20 Johns. 356; Boyle 
 V. State, 6 Ohio Cir. Ct. R. 163; Barnard d. Press Pub. Co!, 63 Hun, 626; 
 17 N. Y. S. Rep. 573; Simmons v. Morse, 6 Jones L. 6; Powers v. Price, 
 
 12 Wend. 500 ; Bullock v. Koon, 9 Cow. 33 ; Green v. Telfair, 20 Barb. 20 ; 
 Gregory v. Atkins, 42 Vt. 250; Davies v. Johnston, 2 Bailey, 579; Reeves 
 V. Bowden, 97 N. C. 29; Turrill ». Dolloway, 17 Wend. 428, 429; Borland 
 V. Patterson, 23 Wend. 422; State v. Jeandell, 6 Harr. (Del.) 475; Hays v. 
 Hays, 1 Humph. 402; McLaughlin v. Bascom, 38 la. 660; Hess v. Fock- 
 ler, 25 la. 252; Garrett v. Dickerson, 19 Md. 418. 
 
 Words or signs will, after verdict for plaintiff be construed by the 
 
312 DEFAMATION. 
 
 shall now use this term as equivalent to " defamatory," 
 unless the context requires us to advert to any distinction 
 
 court to have been used in the worst sense. Bloom v. Bloom, 5 Serg. & 
 R. 391 ; Walton v. Singleton, 7 Id. 451 ; Batterfleld v. BufEum, 9 N. H. 
 156; Northern Cent. E. Co. v. Canton Co., 24 Md. 492; Brown v. Lamber- 
 ton, 2 Binn. 36; Wilson v. Cottman, 65 Md. 190; Hancock u. Stephens, 
 11 Humph. 509; Goodrich v. Woolcott, 3 Cow. 231; Tnttle v. Bishop, 30 
 Conn. 80; Kennedy v. Gifford, 19 Wend. 296. 
 
 It is the duty o£ the court to define what is libel in point of law, and 
 leave it to the jury to say whether the publication in question falls with- 
 in that definition. State v. Goold, 62 Me. 511; Shattucks. AHen, 4 Gray, 
 640; In re Noyes' Will, 61 Vt. 14; 17 At. Eep. 743; Dunnell v. Kske, 11 
 Mete. 553; Jackson v. Wood, 12 Johns. 242; Bourreslau o. Detroit 
 Evening Journal, 63 Mich. 435; 30 N. W. Rep. 379; Filber w. Dauter- 
 mann, 28 Wis. 134; Gottehuet v. Hnbachek, 36 Wis, 618;.Haight o. Cor- 
 nell, 15 Conn. 74; Thompson v. Grimes, 5 Ind. 385; Calkins v. Wheaton, 
 1 Edm. Sel. Cas. 226; Pittock v. O'Neill, 63 Pa. St. 253; Matthews v. 
 Beach, 5 Sandf. 266; Waughc. Wangh, 47 Ind. 580; Snyder ». Andrews, 
 6 Barb. 43; Pugh v. McCarty, 44 Ga. 383; 40 Id. 444; Gabe v. McGinnis, 
 68 Ind. 638; Estahan v. Card, 16 B. Mon. 102. 
 
 It is the duty of the jury to construe words and phrases, and as long as 
 the words are not absolutely unintelligible the jury will judge of the 
 meaning as other readers or hearers. Mix v. Woodward, 12 Conn. 262; 
 Gibson v. Cincinnati Inquirer, 2 Flip. (U. S.) 121 ; Langhlin v. Bascom, 
 38 Iowa, 660; Ryckman v. Delavan, 25 Wend. 186; Stanley c. Webb, 4 
 Sandf. 21 ; Arnott v. Standard Assn., 67 Conn. 86 ; True v. Plumley, 36 
 Me. 466; Dorland v. Patterson, 33 Wend. 422; Andrews v. Woodmansee, 
 15 Id, 232; Poval v. Hellett, 10 Bradw. (111.) 265; Aldrich ». Brown, 11 
 Wend. 596; Emery v. Miller, 1 Denio, 208; Perry «. Mann, 1 E. I. 263; 
 Trabne v. Mays, 3 Dana, 133; Haines v. Campbell, 74 Md. 68; 21 At. Rep. 
 703. 
 
 As where the phrase is grammatically incorrect; 'and where cant or 
 slang terms or ironical, figurative or allegorical language is employed. 
 Cornelius v. Van Slyke, 21 Wend. 70; Goodrich v. Woolcott, 3 Cow. 
 231; Hickley v. Grosjean, 6 Blackf. 351; Mielenz v. Quasdorf, 68 la. 726; 
 Saunderlin v. Bradstreet, 46 N. Y. 188; Commonwealth o. Kneeland, 20 
 Pick. 206; Elam v. Badger, 23 111. 498; Vanderlip v. Eoe, 23 Pa. St, 82. 
 
 If words are spoken in jest or of a doubtful meaning defamatory of 
 another the speaker is responsible to that other for the hearing of the 
 bystanders. Maybee v. Fisk, 42 Barb. 336 ; Maynard v. Flremans' Fund Ins. 
 Co., 34 Cal. 48; 47 Cal. 207; Binford ». Young, 115 Ind. 174;Fovalo. Hal- 
 lett, 10 111. App. 265 ; Weed v. Bibbins, 32 Barb. 316 ; Jacksonville Journal 
 Co. V. Beymer, 42 111. App. 443. See Shecnt «. McDowell, 8 Brev. 38. 
 
 Foreign language. In cases of alleged defamation in a foreign lan- 
 guage, the impression upon the minds of the hearers goes to the gist of the 
 
INNUENDO 313 
 
 between libel and slander) is often a matter of doubt. In 
 the first place the Court has to be satisfied that they are 
 capable of the defamatory meaning ascribed to them. 
 Whether they are so is a question of law (i). 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 nnder all the circumstances of the publication in 
 question. An averment by the plaintifi" that words not 
 libellous in their ordinary meaning or without a special 
 
 (<} Capittd and CorniHes Sank t. Senty sach a meaning, see Mulligan y. Cole 
 
 (1SS21, 7 App. Ca. 741, 62L. J. Q. B. 232, (1875), L. R.IOQ. B. 549, 44L, J. Q. B. 153; 
 
 where the law is elahorately discussed, for one on the other side of the line. 
 
 For a shorter example of words held, Bart v. Wall (1877), 2 0. P. D. 146, 46 L. 
 
 npon consideration, not to be capable of J. C. F. 227. 
 
 action, and a slander not understood by the bystander is not actionable. 
 Nelson v. Borchenius, 52 111. 239. See Delaney v. Kaetel, 81 "Wis. 353; 51 
 N. W. Rep. 659; Blakeman v. Blakeman, 31 Minn. 396; 18 N. W. Kep. 
 103; Schild v. Legler, 82 Wis. 73; 51 N. W. Rep. 1098. 
 
 Innuendo. The office of innuendo is to explain doubtful words and 
 phrases, and annex to them their proper meaning. "It is, however, well 
 settled that an innuendo cannot extend the sense of the words used be- 
 yond their natural meaning, unless something is put upon the record by 
 way of introducing matter, with which they can be connected; in which 
 case, words which are equivocal, or ambiguous, or faU short in their 
 natural sense of stating a slanderous charge, may fix to them a meaning 
 extending beyond their ordinary import, which renders them certain or 
 defamatory by means of a proper innuendo." Vickers v. Stoneman, 73 
 Mich. 421. See Boyce v. Aubuchon, 34 Mo. App. 323; Hays v. Brierly, 4 
 Watts, 393; Black's Law Die, p. 626; Crystal v. Craig, 80 Mo. 367; 
 Weis V. Hoss, 6 Ala. 886; Dicken v. Shepherd, 22 Md. 418. 
 
 "Words that are not actionable ex vi termini cannot be made so by 
 innuendo but must be aided by a proper averment and colloquium, 
 which will warrant the explanatory meaning gives them by innuendo." 
 Peterson v. Sentman, 39 Md. 155. 
 
 But if the words are capable of the meaning attributed to them in the 
 innuendo as explanatory of the previous part of the declaration it must 
 be left to the jury to find whether they were in fact so understood by 
 the persons who heard them. Haines v. Campbell, 74 Md. 58; 21 At. 
 Eep. 703. 
 
 Where the meaning is plain no innuendo is required. Randall v. Even- 
 ing News Assoc. 79 Mich. 266; 44 N. W. Rep. 783. See Boyce v, 
 Aubuchon, 34 Mo. App. 315; Bain v. Myrick, 88 Ind. 137. 
 
314 DEFAMATION. 
 
 application were used with a specified libellous meaning or 
 application is called an innuendo, from the old form of 
 pleading. The old cases contain much minute, not to say 
 frivolous, technicality; but the substance of the doctrine is 
 now reduced to something like what is expressed above. 
 ' The requirement 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 conveyed a libel- 
 lous meaning, and show what that meaning was, has failed 
 to show any cause of action (m). Again, explanation is re- 
 quired if the words have not, for judicial purposes, any 
 received ordinary meaning at all, as being foreign, provin- 
 cial or the like {v). This however is not quite the same 
 thing as an innuendo. A libel in a foreign language might 
 need both a translation to show the ordinary meaning of the 
 words, and a distinct further innuendo to show that they 
 bore a special injurious meaning. 
 
 Liibellons tendency must be probable in law and proved 
 in fact. The actionable or innocent character of words de- 
 pends not on the intention with which they were published, 
 but on their actual meaning and tendency when published 
 (lo). A man is bound to know the natural effect of the 
 language he uses. But where the plaintiff seeks to put an 
 actionable meaning on words by which it is not obviously 
 conveyed, he must make 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 con- 
 vince boththe Court and the jury, and will lose his cause if 
 he fail with either (a;). Words are not deemed capable of 
 a particular meaning merely because it might by possibility 
 
 (M), See 7 App. C. 748 (Lord Sel- (lo) 7 App. Ca. 768, 782, 790, cl. p. 787. 
 
 borne). (a) Lord Blackbaru, 7 App. Ca. 776. 
 
 (.v) Blake OdgerB 109— 112. 
 
REPETITION. 315 
 
 be attached to them : there must be something in either the 
 context or the circumstances that would suggest the alleged 
 meaning to a reasonable mind {y). In scholastic language, 
 it is not enough that the terms should be " patent " of the 
 injurious construction ; they must not only suffer it, but be 
 fairly capable of it. 
 
 Kepetition and reports may be libellous. The publica- 
 tion is no less the speaker's or writer's own act, and none 
 the less makes hidi answerable, because he only repeats 
 
 ■(,y) Lord Selborne, 7 App. Ca. 744; who, of many inferences, chooses a 
 liord Blackburn, ih. 778 ; Lord Bramwell, defamatorj one." 
 ib. 792, " I think that the defamer is he 
 
 Repetition and reports maybe libellous. • The speaker is liable for the 
 repetition of slanderous words although such words were a current report 
 and generally believed by the speaker and others, to be true of the plaint- 
 iff. Knight V. Foster, 39 N. H. 676; Cade ». Redditt, 15 La. An. 492; 
 Moberly v. Preston, 8 Mo. 462; State v. Burtman, 15 La. An. 166; Hayes 
 V. Leland, 29 Me. 233; Stacy v. Portland Pub. Co., 68 Me. 279; Huson o. 
 Dale, 19 Mich. 17; Clark v. Munsell, 6 Mete. 373, 389; Jones v. Chapham, 
 SBlackf. 88; Mapes d,. Weeks, 4 Wend. 669; Skinner «. Grant, 12 Vt. 
 456. See Hinkle v. Davenport, 38 la. 356 ; Thompson v. Bowers, 1 Dougl. 
 321; Mason v. Mason, 4 N. H. 110; Wheeler v. Shields, 3 111. 348; State 
 V. Burtman, 15 La. An. 166; Beardsley v. Bridgmen, 17 la. 290; Haskins 
 V. Lumsden, 10 Wis. 359; Skinner v. Powers, 1 Wend. 451; Carpenter v. 
 BaUey, 53 N. H. 590. 
 
 But this fact may be shown in mitigation of damages. Farr v. Rasco, 
 9 Mich. 353. 
 
 " It is actionable to repeat in good faith slanderous words concerning 
 another, on an occasion not privileged, though afthe same time a disbe- 
 lief in their truth is expressed, and the purpose of the repetition be to 
 obtain advice as to the propriety of informing the plaintiff of the 
 charges. * * * Every repetition of a slander is a wilful publication 
 of it, rendering the speaker liable to an action. ' Tale bearers are as bad 
 as tale makers.' " Branstetter v. Dorrough, 81 Ind. 631. See Clarkson 
 V. McCarty, 5 Blackf . 574 ; Gates v. Kellog, 9 Ind. 506. 
 
 The repetition of slander is not to be justified by merely naming the 
 person who first nttered It. " Such repetition extends the slander, and 
 gives it additional credit. It is therefore unlawful.unless believed to be 
 true, and uttered on a justifiable occasion." Stevens v. Hartwell, 11 
 Mete. 560. See Jarnigan v. Fleming, 43 Miss. 711; 5 Am. Eep. 514; 
 Miller o. Kerr, 2 MoCord, 285; 13 Am. Dec. 722; Skinner o. Powers, 1 
 
316 DEFAMATION. 
 
 what he has heard. Libel may consist in a fair report of 
 statements which were actually made, and on an occasion 
 which then and there justified the original speaker in mak- 
 ing them (a) ; slander in the repetition of a rumour merely 
 as a rumour, and without expressing any belief in its truth 
 {«). "A man may wrongfully and maliciously repeat that 
 which another person may have uttered upon a justifiable 
 occasion," and "as great an injury may accrue from the 
 wrongful repetition as from the first publication of slander ; 
 the first utterer may have been a person insane or of bad 
 character. The person who repeats it gives greater weight 
 
 («) PurceU V. Sowler (1877), 2 C. P. (o) IF<rf*i« v. Jirfi (]868),L. E. 3 Q. B. 
 
 Div. 215, 46 L. J. C. P. 308. 396, 37 L. J. Q. B. 125. 
 
 Wend. 451; Fowler v. Chichester, 26 Ohio St. 9; Sans v. Joerris, 14 Wis. 
 663, Haines v. Welling, 7 Ohio St. 253; Sexton v. Todd, Wright, 317; 
 Larkins v. Tartar, 3 Sneed (Tenn.), 681; Clarkson v. McCarty, 5 Blatcbf. 
 574; Carter ». Kellogg, 9 Ind. 506. 
 
 To the contrary it was held In Johnson «. St. Lonis etc. Co. (65 Mo. 
 539), that he who repeats a slander may shield himself, if at the time of 
 the repetition he gives the plaintiff an action against the original author. 
 See Treat v. Browning, 4 Conn. 408; 10 Am. Dec. 156; Tatlow ». Jacket, 
 1 Harr. (Del.) 333; 26 Am. Dec. 399; Johnson v. Brown, 57 Barb. 118; 
 Inman ». Foster, 8 Wend. 602 ; Trabne v. Mays, 3 Dana, 138 ; Dole o. 
 Lyon, 10 Johns. 447; 6 Am. Dec. 346; Johnston o. Lance, 7 Ired. 448. 
 
 In the late case of Hardin v. Harshfield (Ky. App.-12 S. W. Rep. 779), 
 it was held to be sufficient if the slanderous words were brought to the 
 knowledge of the person influenced by them, by others, either with or 
 without the authority of the defendant who spoke them. See Evans o. 
 Smith, 5 T. B. Mon. 363; Kenney v. McLaughlin, 5 Gray, 3; Cole v. 
 Perry, 8 Cow. 214; Root v. King, 7 Id. 613; Hastings v. Stetson, 126 
 Mass. 329; Shurtleff v. Parker, 130 Mass. 293; Cates t>. Kellogg, 9 Ind. 
 506; Maples v. Weeks, 4 Wend. 659; Sheahan». Collins, 20111. 325; Free- 
 man ». Price, 2 Bailey, 115; Dame v. Kenny, 25 N. H. 318; Walcott ». 
 Hall, 6 Mass. 514; Johnson v. Stebbins, 5 Port. 364; Layton v. Harris, 3 
 Harr. (Del.) 406; Alderman ». French, 1 Pick. 1; Bodwell «. Swan, 3 Id. 
 376; Fowlers. Chickester, 26 Ohio St. 9; Sans v. Joerris, 14 Wis. 663; 
 Fitzgerald v. Stewart, 53 Pa. St. 343. But see Terwilliger o. Wands, 17 
 N. Y. 61; Burt o. Advertiser Newsp. Co., 154 Mass. 238; 28 N. E. Rep. 1. 
 
 If the defendant only repeats a report which originated from the plaint- 
 iff's carelessness, the plaintiff cannot recover. Fitzgerald ». Stewart, 53 
 Pa. St. 343. 
 
FAIR COMMENT. 317. 
 
 to the slander " (6). Circumstances of this kind may count 
 for much in assessing damages, but they count for nothing 
 towards determining whether the defendant is liable at all . 
 From 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 damage ensue 
 from' the repetition only, Z. shall have an action against 
 B., but not against A. ( c). As to the defendant's belief in 
 the truth of the matter published or republished by him, 
 that may affect the damages but cannot affect the liability. 
 Good faith occurs as a material legal element only when we 
 come to the exceptions from the general law that a man 
 utters defamatory matter at his own peril. 
 
 3. — Exceptions. 
 
 Exceptions : fair comment. We now have to mention 
 the conditions which exclude, if present, liability for words 
 apparently injurious to reputation. 
 
 Nothing is a libel which is a fair comment on a subject 
 
 (6) lilttledale J., McPhersaa T. Darnels Bep. 134, Is not law. See per Faike J., 
 , 10 B. & C. 263, 273, adopted by 10 B. & C. at p. 275. 
 
 Blackburn J., L. B. 3 Q. B. 400. The (o) See ParMns v. Scott (1862), 1 H. & 
 
 latter part of the 4th Eesolntion reported 0. 16S, 31 L. J. Ex. 381, p. 222, above. 
 In the Karl of Northampton's ease, 13 Co. 
 
 Fair comment. In accord witb the text it may be said that by fair com- 
 ment, or "fair criticism," is meant the truthful statement of facts with 
 such reasonable opinions thereon of the speaker or writer as are ex- 
 pressed with good motives and for justiflable ends. Public men, public 
 affairs and all subjects fairly open for public discussion may be criticised, 
 with good faith and for the public benefit. 
 
 Freedom of speech and the liberty of the press are guaranteed by the 
 constitution, are esteemed as the most sacred of the rights inherent in 
 the individual, and recognized as the palladium of civil liberty. The 
 right to publicly discuss public things, either orally or by writing belongs 
 to every person and may be indulged without restraint so long as it is 
 not abused. See Snyder v. Tutten, 34 Md. 128; 6 Am. Kep. 814; Press 
 Co. V. Stewart, 119 Pa. St. 684, 
 
 " There is an important distinction to be noticed between the so-called 
 privilege of fair criticism upon matters of public interest, and the privi- 
 
318 DEFAMATION. 
 
 fairly open to public discussion. This is a rule of common 
 right, not of allowance to persons in^ any particular situa- 
 
 lege existing in the case, for instance, of the answers to inquiries about 
 the character of" servant. In the latter case, a bona fide statement not in 
 excess of the occasion is privileged, although it turns out to be false. In 
 the former what is privileged, If that is the proper term, is criticism, not 
 state;ment, and however it might be if a person merely quoted or referred 
 to a statement as made by others, apd gave it no new sanction, if he 
 .takes upon himself in his own person to allege facts otherwise libellous, 
 he will not be privileged if those facts are not true. The reason for the 
 distinction lies in the different nature and degree of the exigency and of the 
 damages of the two cases. * * * But what the Interest of private citi- 
 zens in public matters requires is freedom of discusion rather than state- 
 ment. * • * The above distinction has been brought out more clearly 
 in English decisions than it has in those of the United States." Follow- 
 ing Scheckell V. Jackson, 10 Cnsh. 25; Burt o. Advertiser Newsp. Co., 
 151 Mass. 242. 
 
 Liberty of the press . By liberty of the press is meant "the right to 
 print and publish the truth, from good motives and justifiable ends." 
 3 Johns. Cas. 394. The freedom of the press is permitted by law for the 
 public good, inasmuch as the press, properly conducted, is conceded to 
 be the most potential means for detecting crime, exposing fraud, re- 
 vealing malign influences and purifying and protecting public affairs. 
 The right to print and publish a newspaper containing fair comment is 
 identical with the right of the individual to liberty of speech. 
 
 "It is a right which in every free country belongs to the citizen, and 
 the exercise of it, within lawful and proper limits, affords some pro- 
 tection at least against official abuse and corruption. But there is a 
 broad distinction between fair and legitimate discussion in regard to 
 the conduct of a public man, and the Imputation of corrupt motives, by 
 which that conduct was supposed to be governed. And if one goes out 
 of his way to asperse the personal character of a public man, and to 
 ascribe to him base and corrupt motives, he must do so at his peril; and 
 must either prove the truth of what he says, or answer in damages to 
 the party injured. The fact that one is the proprietor of a newspaper, 
 entitles him to no privilege in this respect, not possessed by the com- 
 munity in general." Negley v. Farrow, 60 Md. 176. See Hamilton v. 
 Eno, 81 N. Y. 126; Kingston v. Palmer, 18 la. 327; Pratt o. Pioneer 
 Press Co., 30 Minn. 44 ; Bronson v. Bruce, 59 Mich. 467 ; Ferret v. N. O. 
 Times Newspaper, 25 La. An. 177; Detroit Daily Post Co. v. McArthur, 
 16 Mich. 461; Bathrick v. The Detroit Post and Tribune Co., 50 Id. 
 629; Barnes v. Campbell (Pa.), 14 At. Kep. 129; MaUory ». Pioneer 
 Press Co., 34 Minn. 523; Commonwealth v. Blanding, 3 Pick. 304; 3 
 Kent. 17; Root v. King, 1 Cow. 928; s. c. King©. Root, 4 Wend. 113; 
 Loutbam v. Commonwealth, 79 Va, 196. 
 
FAIR COMMENT. 319 
 
 tion {d); and it is not correct to speak of utterances pro- 
 tected 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. " The 
 question is not whether the article is privileged, but 
 whether it is a libel " (e). This is settled by the leading 
 case of Campell v.* Spottiswoode (/), confirmfed by the 
 Court of Appeal in Merivale v. Carson (g). On the other 
 hand, the honesty of the critic's belief or motive is no 
 defence. The right is to publish such comment as in the 
 opinion of impartial bystanders, as represented by the 
 jury, may fairly arise out of the matter in hand. What- 
 ever goes beyond this, even if well meant, is libellous. 
 The courts have, perhaps purposely, not fixed any standard 
 of " fair criticism " (h). 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 consequences, but wicked or dis- 
 honest motives must not be imputed upon mere surmise. 
 Such imputations, even if honestly made, are wrongful, 
 unless thei-e 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 frequently be an element which the jury may take 
 into consideration in considering whether or not an alleged 
 t 
 
 (d) See per Bowen L. J., Mertvdle v. (g) (1887) 20 Q. B. Div. 275. This must 
 
 Carson (1887), 20 Q. B. Dlv. at p. 282, S8 be taken to overrule whatever was said 
 
 L. J. Q. B. 548. to the contrary In Henwood v. ffarrison 
 
 {«) Lord Esher M. E., 20 Q. B. Div. at (1872), L. E. 7 0. P. 606, 626, 41 L. J. 0. P. 
 
 p. 280. 206. 
 
 (/) 3 B. & S. 769, 32 L. J. Q, B. 155 (ft) Bowen L. J., 20 Q B. Div. at p. 
 
 (1863). 233. 
 
320 DEFAMATION. 
 
 libel was in excess of a fair comment; but it cannot in 
 itself prevent the matter being libellous " (i). 
 
 The case of a criticism fair in itself being proved to 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 (j). On principle it seems that the motive 
 is immaterial ; for if the criticism be in itself justifiable, 
 there is nothing to complain of, unless it can be said that 
 comment proceeding from an indirect and dishonest inten- 
 tion to injure the plaintiff is not criticism at all (k). 
 Evidence tending to show the presence of improper motives 
 might well also tend to show that the comment was not 
 fair in itself, and thus be material on either view ; as on 
 the other hand to say of some kinds of criticism that there 
 is no evidence of malice is practically equivalent to saying 
 there is no evidence of the comment being otherwise than 
 fair (Z). 
 
 What is open to comment, matter of law. What acts 
 and conduct are open to public comment is a question for 
 the Courts but one of judicial common sense rather than of 
 
 (») Blackbain J., Campbell v. Spottis- (A) Lord Eaher M. R., Merivale v. 
 
 woods, 32 L. J. Q. B. at p. 202 ; cp. Bowen Carson, 20 Q. B. Div. 275, 281. 
 
 L. J., 20 Q. B. DlT. at p. 284. (i) On this ground the actual decision 
 
 y) See however Wason v. IFalter In Heniwood v. Harrisoa, note {jg), last 
 
 (1868;, li. B. 4 Q. B. at p. 96, 38 L. J. Q. B. page, may have been right; see however 
 
 34, and Sieveiis v. Sampson (1879), 6 Ex. the dissenting jadgment ol Grove J. 
 Dlv. 63,49 L. J. Q. B. 120; and per Lord 
 Esher M. R. 20 Q. B. Dlv. at p. 281. 
 
 What is open to Comment, matter ol law. " It is a matter of law 
 for the court to determine whether the occasion of writing that 
 which would otherwise be actionable repels the inference of malice, and 
 thus constitutes it a privileged communication." Neeb v. Hope, 111 i 
 Pa. St. 145. See Hagan v. Hendry, 68 Md. 191 ; Briggs v. Garrett, 111 
 Pa. St. Hi; Locke v. Bradstreet, 22 Fed. Rep. 772; Montgomery o. 
 Knox, 20 Fla. 380; Stewart v. Hall, 83 Ky. 382; Wharton v. Wright, 30 
 111. App. 343. 
 
 There are times when a private individual places himself in a position 
 to invite public critidsm as by publishing a book, or a musical composi- 
 tion, or an economic theory or an industrial enterprise, when such 
 
FAIR COMMENT. 321 
 
 technical definition. Subject-matter of this kind may be 
 broadly classed under two types. 
 
 The matter may be in itself of interest to the common 
 weal, as the conduct of persons in public offices or affairs (»i), 
 
 (m) Including the condnct at a pnblic whateyei is incidental thereto is matter 
 
 meeting of persons 'who attend it as of public interest. Kelly y. TirUing (.1885), 
 
 private citizens: Davis v. Duncan (1874), L. R. 1 Q. B. 699, 35 L. J. Q. B. 940, cp. 
 
 L. K. 9 C. P. 396, 4S L. J. 0. P. 185. A Kelly v. Sherlock (1866), L. E. 1 Q. B. at 
 
 clergyman is a public officer, or at any p. 689, 35 L. J. Q. B. 209. 
 rate the conduct ot public worship and 
 
 prodnctions are subject to correct pnblic discussion and fair comment, 
 but only after publication. 
 
 " To say that he Is an author, editor or reviewer, is but saying that he 
 is engaged in a profession which has been and may be eminently useful to 
 mankind, and which would therefore seem to call for peculiar protection 
 and encouragement. That the law shoald allow his productions to be 
 criticised with great freedom, is not denied. If he has made himself 
 ridiculous by his writings, he may be ridiculed ; if they show him to be 
 vicious his reviewer may say so. But the latter has no right, therefore, 
 to violate the truth in either respect." Cooper v. Stone, 24 Wend. 441. 
 
 So, when one becomes a candidate for public office he thereby delib- 
 erately places his conduct, character, and utterances before the public 
 for their discussion and consideration, and they may be criticised 
 according to the taste of the writer or speaker, who will be protected in 
 so doing, if in their statement of or reference to the facts they observe 
 an honest regard for the truth. Belknap v. Ball, 83 Mich. 583; 47 N. W. 
 Rep. 674; Walker v. Tribune Co., 29 Fed. Rep. 827; McAllister ». Free 
 Press Co., 76 Mich. 356; Bailey v. Publishing Co., 40 Id. 257; Crane v. 
 Waters, 10 Fed. Rep. 619; Express Printing Co. v. Copeland, 64 Tex. 364; 
 Upton V. Hume (Oreg.), 33 Pac. Kep. 810. 
 
 " Let his talents, his virtues, and such vices as are likely to affect his 
 public character be. freely discussed, but no falsehoods be propagated." 
 Brewer v. Weakley, 2 Overt. 99. 
 
 " His talents and qualifications, mentally and physically for the office 
 he asks at the hands of the people, may freely be commented on in publi- 
 cations in a newspaper, and, though such comment be harsh and unjust, 
 no malice ■will be implied, for these are matters of opinion of which the 
 voters are the only judges ; but no one has a right by a publication to 
 impute to such candidate falsely crimes, or allegations affecting his 
 character, falsely." Sweeney v. Baker, 13 W. Va. 184. See Kearick v. 
 Wilcox, 81 111. 77; Smith v. Burns, 106 Mo. 94; Commonwealth v. Clapsi 
 
 4 Mass. 163; Wheaton v. Beecher, 79 Mich. 443; 33 N. W. Rep. 603; Har- 
 wood V. Keech, 4 Hun, 389 ; Burke v. Muscarich, 81 Cal. 302 ; Lewis v. Pew, 
 
 5 Johns. 1 ; Bays v. Hunt, 60 la. 251 ; Mott v. Dawson, 46 la. 533. 
 
 21 
 
322 DEFAMATION. 
 
 of those in authority, whether imperial or local (n), in 
 the administration of the law, of the managers of public 
 institutions in the affairs of those institutions, and the 
 like. 
 
 Or it may be laid open to the public by the voluntary- 
 j act of the person concerned. The writer of a book offered 
 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 opinion, and must take the 
 risks of fair criticism; wbich criticism, being itself a public 
 act, is in like manner open to reply within commensurate 
 limits. 
 
 Whether comment is fair, matter of fact (if libellous 
 construction possible). What is actually fair criticism 
 is a question of fact, provided the words are capable of 
 being understood in a sense beyond the fair (that is hon- 
 est) expression of an unfavourable opinion, however 
 strong, on that which the plaintiff has submitted to the 
 public : this is only an application of the wider principle 
 above stated as to the construction of a supposed libel (o). 
 
 In literary and artistic usage criticism is hardly allowed 
 to be fair which does not show competent intelligence of 
 
 (») PurceU V. Sowler, 2 0. P. Div. 215, A'Beckett (1871), L. B. 7 Q. B. U, 41 
 
 16 L. J. C. P. 308. L. J. Q. B. 14. Qit. whether the dls- 
 
 (o) JferivoZe^y. Carson (1887),20Q. B- senting judgment of LuBh J. was not 
 
 DlT. 276, 68 L. J. Q. B. 548; Jenner v. right. 
 
 Wbetber comment la fair, tor the jury to determine. After the 
 jury have been instructed by the conrt that a matter submitted to them 
 is a proper subject for public comment, or that the occasion was priv- 
 leged, it is their duty to determine whether the comment made by the 
 defendant is fair in fact. See Hyde v. McCabe, 100 Mo. 413; 13 S. W. 
 Rep. 875; Bacon «. Mich. Cent. R. R. Co., 66 Mich. 172; Rowland Blake 
 V. Mfg. Co., 156 Mass. 543 ; 31 N. E. Rep. 656 ; Lally v. Emery, 59 Hun, 237. 
 And see, ante, p. 232. 
 
JUSTIFICATION BY TRUTH. 323 
 
 the sabject-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 concerning alleged specific acts of mis- 
 conduct (p), or purporting to describe the actual contents 
 or the work being criticised (q). 
 
 Justification on ground of truth. Defamation is not 
 actionable if the defendant shows that the defamatory mat- 
 ter was true ; and if it was so, the purpose or motive with 
 
 (p) Davis y. Shepstone (1886), J. C. 11 (g) Merivale v. Carson (1887), 20 Q. B 
 
 App. Ca. 187, 55 L. J. P. O. 51. Div. 275. 
 
 Justification on ground ol truth. Agreeing with the text is the rule 
 iu America that the truth of the charge, when specially pleaded and 
 proved at the trial. Is a complete defense in all civil actions of libel or 
 slander. Mundy v. Wight, 26 Kan. 177, citing Castle Vi Houston, 19 Id. 
 417. See Boot v. King, 4 Wend. 114; 21 Am. Dec. 102; Eveston v. 
 Cramer, 54 Wis. 220; Moore v. Mauk, 3 111. App. 114; Scott v. Fleming, 
 17 Id. 561; Wonderlyc. Nokes, 8 Blackf. 590; Mielenz v. Quasdorf , 68 la. 
 729; Riley ». Norton, 65 Id. 306; Forahee v. Abrams, 2 Id. 671; GilllS v. 
 ■Ptck, 20 Conn. 228; Brown v. Massachusetts Title Ins. Co., 15 Mass. 
 127; 23 N. E. Rep. 733; Cameron v. Tribune Assn., 7 N. Y. S. Rep. 737; 
 McBee v. Fulton, 47 Md. 403; Parkhnrst v. Ketchum, 6 Id. 406; Watson 
 V. Moore, 2 Cash. 133; Snow v. Witcher, 9 Ired. 346; Payne v. Taylor, 14 
 La. An. 407; Tuunell v. Furguson, 17 111. App. 76; Patterson v. State, 12 
 Tex. App. 458; Welch v. Jugenheimer, 66 la. 11; Delaware S. F. & M. 
 Ins. Co. V. Croasdale, 6 Hoast. 181 ; Wheaton v. Beecher, 79 M^cl^. 443 ; 
 44 N. W. Rep. 927; Holmes v. Jones, 121 N. Y. 461; 24 N. E. Rep. 201; 
 Morgan v. Rice, 35 Mo. App. 591; McLean v. Warring (Miss.), 13 So. 
 Rep. 236 ; Davis v. Lyon, 91 N. C. 447. But proof of the truth of the 
 charge cannot be introduced in justification under a general plea of not 
 guilty. The plaintiff is entitled to have notice of the kind of defense 
 which will be made at the trial and would of course be unprepared to 
 meet proof ol facts foreign to the pleadings. Sweeney v. Baker, 13 W. 
 Va. 205. See Foss v. Hildredth, 10 Allen, 76; Snyder v. Andrews, 6 
 Barb. 56; Jarnigan v. Fleming, 43 Miss. 227; Curtis v. Perkins, 66 Barb. 
 CIO; Donaghue v. GafEy, 53 Conn. 43; Hogan v. Hendry, 68 Md. 177; Bar- 
 rows u. Carpenter, 1 Cliff. 204; Frederitze v. Odenwalder, 2 Yeates, 243; 
 Powers V. Presgrovea, 38 Miss. 227; Bourland v. Edison, 8 Gratt. 27; 
 
324 DEFAMATION. 
 
 which it was published is irrelevant. For although in th& 
 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 
 
 Sheahan v. Collins, 20 111. 325; 71 Am. Dec. 271; Hutchinson v. Wheeler, 
 35 Vt. 330; Padgett v. Sweeting, 65 Md. 404; Duval u. Davey, 32 Ohio St. 
 604; Thompson v. Bowers, 1 Dougl. 321; Porter v. Botkins, 59 Pa. St. 
 484; Thomas v. Dunaway, 30 111. 373; Johnson v. Stebbins, 5 Ind. 364; 
 George v. Lemon, 19 Tex. 150; Thall v. Smiley, 9 Cal. 529; Ness v. 
 Hamilton, 19 Johns. 349; Fidler v. Delavan, 20 Wend. 57; Van Derveer 
 ». Sutjihin, 6 Ohio St. 293; Helton v. Muzzy, 30 Vt. 365; Hathom v. Con- 
 gress Spring Co., 44 Hun, 608 ; Jones v. Townsend, 21 Fla. 440; TaU- 
 madge ». Press Pub. Co., 7N. T. S.Rep. 895; Ballv. Evening Post Co., 38 
 Hun, 11; BlickehstafE v. Prim, 27 Ind. 527; Petrie v. Rose, 5 Watts & S. 
 364; Wagner v. Holdbrinner, 7 Gill, 296; Douge v. Pierce, 13 Ala. 127. 
 
 It is the established English doctrine that where truth is pleaded in 
 justiflcation ol the defamation, the defendant will not be allowed to 
 prove palliating circumstances in mitigation; and this doctrine has been 
 followed in a few American decisions. See Alderman v. French, 1 
 Pick. 18; Shelton v. Simmons, 12 Ala. 466. But the prevailing rule in 
 this country is to the contrary. West v. Walker, 2 Swan, 32 ; Hawkins 
 V. Globe Printing Co., 10 Mo. App. 174; Landis v. Shanklin, 1 Ind. 92; 
 Morehead v. Jones, 2 B. Mon. 210; Pallet o. Sai^^ent, 36 N. H. 4^6; 
 Snyder v. Andrews, 6 Barb. 57; Purple v. Horton, 13 Id. 9; Cooper v. 
 Barber. 24 Id. 106. 
 
 If a defendant maliciously and for the purpose of spreading and per- 
 petuating the slander, pleads the truth of the words In Justiflcation 
 and fails to prove it. It may be regarded as evidence proving or tending 
 to prove malice in speaking the words originally, and may tend indirectly 
 to increase the damages for speaking the slanderous words charged In 
 the declaration by showing the degree of malice in speaking them. 
 See Klewjn v. Bauman, 53 Wis. 245; Henderson v. Fox, 83 Ga. 233; 9 S. 
 B. Rep. 839; Bennett v. Mathews, 64 Barb. 411; Fero v. Ruscoe, 4 N. Y. 
 162; Beasley v. Meigs, 16 111. 139; Spencer v. McMasters, 16 111. 405; 
 Robinson v. Drummond, 24 Ala. 174; Doss v. Jones, 5 How. (Miss,) 
 158; Updegrdve v. Zimmerman, 13 Pa. St. 619; Pool v. Devers, 30 Ala. 
 672; Richardson v. Roberts, 23 Ga. 215; Lea v. Robertson, 1 Stew. 138; 
 Sweeney v. Baker, 13 W. Va. 207; Gilman v. Lowell, 8 Wend. 575; 
 Marks ». Baker,' 28 Minn. 162; Sloan ». Petrie, 15 111. 425; Aird v. Fire- 
 man's Journal Co., 10 Daly, 251; Murphy v. Stout, 1 Ind. 372; Soulty v. 
 Miller, lb. Id. 544; Decker v. Gayiord, 85 Hun, 584; Ransome v. Chris- 
 tian, 49 Ga. 491 ; Cavamaug'h v. Austin, 42 Vt. 576 ; Pallet v. Sargent, 36 
 N. H. 496; Rayner v. Kinney, 14 Ohio (N. S.), 283; Thomas v. Dunaway 
 30 111. 373. 
 
JUSTIFICATION BY TRUTH. 325 
 
 iu season and out of season (indeed it may be a criminal 
 offence), but because of the demerit attaching to the 
 plaintiff if the imputation is true, whereby he is deemed 
 to have no ground of complaint for the fact being communi- 
 cated to his neighbours. It is not that uttering truth al- 
 ways 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 confesseS, but the special matter avoided the 
 plaintiff's right (r). " The law will not permit a man to 
 recover damages in respect of an injury to a character 
 which he either does not or ought not to possess " (s). 
 This defence, as authority and experience show, is not a 
 favoured one. To adopt it is to forego the usual advan- 
 tages of the defending party, and commit oneself to a 
 counter-attack in which only complete success will be 
 profitable, and failure will be disastrous. 
 
 Must be substantially complete. What the defendant 
 has to prove is truth in substance, that is, he must show 
 that the imputation made or repeated by him was true as 
 
 (r) Compare the similar doctrine in (s) Littledale J-, 10 B. & C. at p. 272. 
 
 trespass, whicti has peculiar conse- 
 quences. But of this in its place. 
 
 Must be substantlaUy complete. The doctrine of the text is sup- 
 ported by the American authorities. Thus, in the case of Hay v. Reid 
 (85 Mich. 296; 48 N. W. Bep. 607),^the court held, that " Where an article 
 contained several distinct libelous charges, a justification as to part of 
 the charges, and not the whole goes only in mitigation of damages, and 
 does not warrant a verdict for the defendant." See Atkinson v. Detroit 
 Free Press, 46 Mich, 348; McBee v. Fulton, 47 Md. 403; Scott v. 
 McKinnish, 15 Ala. 662; Jones v. Greeley, 25 Fla. 629; 6 So. Rep. 448. 
 
 Upon the question of the quantum of proof required to support a plea 
 of justification, see Fowler v. Wallace, 131 Ind. 347; 31 N. B. Bep. 53; 
 Bell V. MoGinnis, 40 Ohio St. 204; 48 Am. Rep. 673; Kane v. Hibernia 
 Ins. Co., 10 Vroom, 697; Behrens v. Ins. Co., 58 Id. 26; Blazer v. Insur- 
 ance Co., 37 Wis. 31; Thayer». Boyle, 30 Me. 475; Elliott v. VanBuren, 
 
326 DEFAMATION. 
 
 a whole and in every material part thereof. He cannot 
 Justify part of a statement, and admit liability for part, 
 without distinctly severing that which he justifies from that 
 which he does not (t). 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 
 Jjuestion of fact (m). 
 
 There may be a further question whether the matter 
 alleged as justification is sufficient, 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 editor" by showing, that he was 
 once convicted of felony. For a felon is one who has 
 actually committed felony, and who has not ceased to be a 
 felon by full endurance of the sentence of the law, or by a 
 pardon ; not a man erroneously convicted, or one who has 
 been convicted and duly discharged. But it may be for a 
 jury to say whether calling a man a "convicted felon" 
 imputed the quality of felony generally, or only conveyed 
 
 («) Fleming v. Dollar (1889),23 Q.B. D. (tt) Alexander-^. North Eastern Jt. Co. 
 
 SSi, 6S L. J. Q. B. 548. (1865), 6 B. & S. 340, 84 L. J. Q. B. 152. 
 
 ."3 Mich. 51 ; Gordan v. Parmelee, 15 Gray, 416; Folsom v. Brown, 25 N. 
 II. 114; Bradishti. Bliss, 35 Vt. 326; Carrie v. Richardson, 63 Vt. 617; 22 
 At. Eep. 625; Stallings v. "Whittaker, .65 Ark. 494; 18 S. W. Rep, 329; 
 Ellis V. Buzzeli, 60 Me. 209; 11 Am. Rep. 204. 
 
 In all such cases the burden of proof is on the defendant. Edwards v. 
 Enapp, 97 Me. 432 ; Stewart v. Minnesota Tribune Co., 40 Minn. 101 ; 42 N. 
 W.Rep. 787 ; Mclntyre v. Branstord (Ky.),17 S. W. Rep. 359; Tulle. David, 
 27 Ind. 377; Soan v. Gilbert, 12 Bush, 51; 23 Am. Rep. 508; Barfleld v. 
 Britt, 2 Jones L. 41 ;' 62 Am. Dec. 190 ; Kldd v. Gleefe, 47 Wis. 443 ; Bradley 
 V. Kennedy, 2 Greene (la.), 231; Snyder v. Andrews, 6 Barb. 43; Fountain 
 V. West, 23 la. 9; 92 Am. Dec. 406; Byrket v. Monahon, 7 Blackf. 83; 41 
 Am. Dec. 212; Burckhalter v. Coward, 16 S. C. 435; Ellis o. Lindly, 38 
 la. 461 ; Tucker v. Call, 45 Ind. 31 ; Williams v. Gunnels, 66 Ga. 521, 
 
JUDICIAL PRIVILEGE. 327 
 
 the fact that at some time he was convicted (cc). Where 
 the libel charges a criminal offence with circumstances of 
 moral aggravation, it is not a sufficient justification to 
 aver the committing of the offence without those circum- 
 stances, though in law they may be irrelevant, or relevant 
 only as evidence of some element or condition of the 
 ofPence (y). The limits of the authority which the court 
 will exercise over juries in handling questions of " mixed 
 fact and law" must be admitted to be hard to define in 
 this and other branches of the law of defamation. 
 
 Defendant's belief Immaterial. Apparently it would 
 make no difference in law that the defendant had made a 
 defamatory statement without any belief in its truth, if it 
 turned out afterwards to have been true when made : as, 
 conversely, it is certain that the most honest and even rea- 
 sonable belief is of itself no justification. Costs, however, 
 are now in the discretion of the Court. 
 
 Immunity of members of Parliament and judges. In 
 
 order that public duties may be discharged without fear, 
 unqualified protection is given to language used in the 
 
 (X) Legman V. Latimer (ISiIS), 3 'Ex. DlM. (,!/) Helsham v. £lackwQQd (1851), H C. 
 
 353, 47 L. J. Ex. 470. B. 128, 20 L. J. C. P. 187, a very curious 
 
 case. 
 
 Defendant's belief immaterial. Agreeing with the text, vide Fobs ». 
 Hildreth, 10 Allen, 76; Blacker o.SchofE (la.), 48 N. W. Eep. 1079; Foun- 
 tain V. West, 23 la. 14; Watson v. Moore, 2 Cush. 134; Wozelka v. Het- 
 trick, 93 N. C. 10; Beardsley v. Brldgman, 17 la. 290; Grimes v. Coyle, 6 
 B. Men. 301; Woodrnff v. Richardson, 20 Conn. 238; Powers v. Gary, 
 64 Me. 9. 
 
 Immunity of members of parliament, judges and others. The 
 immunity of the communications mentioned In this paragraph is 
 absolute. 
 
 Legislators. A member of the legislature has Immunity from an ac- 
 tion for slander for words spoken in the discharge of his ofBcial duties, 
 even though spokfen maliciously and against the declared will of the 
 house. These privileges are thus secured, not with the intention of 
 
328 DEFAMATION. 
 
 exercise of parliamentary and judicial functions. A mem- 
 ber of Parliament cannot be lawfully molested outside Par- 
 liament by civil action, or otherwise, on account of anything 
 
 protecting the members for their own benefit, but to support the rights 
 of the people, by enabling their representatives to execute the functions 
 of their office without fear of prosecution. ' Coffin v. Coffin, 4 Mass. 1. 
 See Dunham v. Powers, 42 Vt. 1; Hastings v. Lusk, 22 Wend. 416; 
 'Wood V. Wiman, 47 Hun, 364; Perkins v. Mitchell, 31 Barb. 467. 
 
 Judicial proceedings. The rule is well settled by the authorities that 
 anything pertinent to the issue, said in the regular course of judicial 
 proceedings, though it impute crime and import malice, is not action- 
 able. Hoar V. Wood, 3 Mete. 197. Whether the imputation be spoken 
 or written, and made by a party to the proceedings, the judge, counsel, 
 witness or juryman, if pertinent, it is privileged, and consequently lays 
 no foundation for a private action or public prosecution. HoUis v. 
 Meux, 69 Cal. 629; Prescott v. Tousey, 63 N. Y. Super. Ct. 66; Vinas v. 
 Merchants'' Mut. Ins. Co., 8 La. An. 1265; Allen v. Crofoot, 2 Wend. 516; 
 Rainbow v. Benson, 71 la. 801; Yorlc ». Pease, 2 Gray, 282; Nissen v. 
 Cramer, 104 N. C. 679; 10 S. E. Rep. 676; Hawks v. Evans, 76 la. 593; 
 Randall «. Brigham, 7 Wall. 523; Rector v. Smith, 11 la, 302; Wyatt v. 
 Buell, 47 Cal. 624; Lawson v. Hicks, 38 Ala. 279; Aylefeworth o. St. 
 Johns, 25 Hun, 156; Badgley v. Hedges, 2 N. J; L. 233; Bartlett o. Chris- 
 thilf, 69 Md. 219; Spaids v. Barrett, 57 111. 289; Gardemal v. 
 McWilliams, 43 Lai An. 464; 9 So. Rep. 106; Whitney v. Allen, 62 111. 
 472; Strauss v. Meyer, 48 HI. 385; Bailey w; Dean, 6 Barb. 297; Garr ». 
 Selden, 4 Comst. 91; Warner ». Paine, 2 Sandf . 196; Hart v . Baxter, 47 
 Mich. 198; McMillen v. Birch, 1 Binn. 178; Fish v. Soniai;, 33 La. 
 An. 1400. 
 
 So, all pleadings, affidavits, and other documents necessary to the con- 
 duct of the cause are privileged. Gilbert v. People, 1 Denio, 41; Hart- 
 sock ». Reddick, 6 Blackf. 255; Warner v. Payne, 48 111. 386; Bailey v. 
 Dean, 5 Barb. 297; Stewart v. Hall, 83 Ky. 375; Lanning v. Christie, 30 
 Ohio St, 115; 27 Am. Rep. 431; Vausse v. Lee, 1 HiU (S. C), 197; 26 
 Am. Dec 168; Lea v. White, 4 Sneed (Tenn.), 111. 
 
 Libellous charges made before a court not legally competent to inves- 
 tigate them, are actionable. Milam v. Bnrnsides, 1 Brev. 295. 
 
 "It seems to be well settled by the English authorities that judges, 
 counsel, parties and witnesses are absolutely exenipted from liability to 
 an action for defamatory words^ published In the course of judicial pro- 
 ceedings. * * * The same doctrine is generally held in the American 
 courts, with the qualification, as to parties, counsel and witnesses, that 
 in order to be privileged, their statements made in the course of an 
 action must be pertinent and material to the case." Rice v. Coolidge 
 121 Mass. 395. See Barnes v. McCrate, 32 Me. 442 ; Kidder v, Parkhurst 
 3 Allen, 393; Kean v. McLaughlin, 2 Serg. & R. 469; Ruohs v. Backer, 6 
 
JUDICIAL PRIVILEGE. 329 
 
 said by him in his place in either House (s). An action 
 will not lie against a judge for any words used by him in 
 his judicial capacity in a court of justice (a). It is not 
 
 (a) St. 4 Hen. VIII. o. 8 (Pro Bicardo ment ought nbt to be Impenched or 
 
 Strode) ; Bill of Bights, 1 Wm. & M. sess. qnestloned in any court or place out of 
 
 2, c. 2, " That the freedome of speech Parlyament." 
 
 and debates or proceedings in Parlya- (a) Scott v. Stamfield (1S68), L. B. 3 
 
 Heisk. 395; McLaughlin v. Cowley, 127 Mass. 316; Burlingame o. Bur- 
 lingame, 8 Cow. 141; Post Pub. Co.?;. Moloney (Ohio),33N. E. Eep.921. 
 
 In determining what is pertinent much latitude must be allowed. 
 Hoar V. Wood, 3 Mete. 197. 
 
 In Maulsby v. Beifsnider (69 Md. 162) the court with much reason said, 
 In substance, that the words "relevant" and "pertinent " are not the 
 best words that could be used. 
 
 It is sufficient If the matter has reference or relation or any connection 
 with the point inlssne. See State v. Wait, 44 Kan. 310, 24 Pac. Rep. 354. 
 
 In Vermont it is held that ^ if the party spoke the words bona fide, 
 believing them to be pertinent no action of slander will lie. Mower o. 
 Watson, 11 Vt. 542; Torry v. Field, 10 Id. 353. 
 
 Attorneys. Marsh u. Ellsworth, 50 N. Y. 312; Morgan v. Booth, 13 
 Bush, 480; Eice v. Coolidge, 121 Mass. 393; Eing v. Wheeler, 7 Cow. 
 725; Hollis ». Meux, 69 Cal. 625; 58 Am. Eep. 574; 11 Pac. Eep. 248; 
 Lester v. Thurmond, 51 Ga. 118; Dada v. Piper, 41 Hun, 254; Mower v. 
 Watson, 11 Vt. 536; Maulsby o. Eeifsnider, 69 Md. 161. 
 
 In Hoar v. Wood (3 Mete. 193), Shaw, C. J., said: " Still this privilege 
 must be restrained by some limit; and we consider that limit to be this; 
 that a party or counsel shall not avail himself of his situation, to gratify 
 private malice by uttering slanderous expressions, either against a party. 
 Witnesses or third persons, cause or subiect-matter of the inquiry." 
 And in Hastings v. Lusk, the absolute and unqualified privilege laid 
 down in several English cases is rejected. See Schelfer v. Gooding, 2 
 Jones L. 175; Stackpole v. Hennen, 6 Mart. (N. S.) 481. 
 
 Witnesses. Calkins v. Sumner 13 Wis. 193; White v. Carroll, 42 N. 
 Y. 161; 1 Am. Eep. S04; Liles v. Guster, *2 Ohio St. 631 ; Burke ». Eyan, 
 36 La. An. 951; Spooner v. Keeler, 61 N. Y. 627; Shadden v. McElwee, 86 
 Tenn. 146; Hunckell v. Vonliff, 69 Md. 179; McLaughlins. Charles, 14 
 N. Y. S. Eep. 608; Preston ». Frey, 91 Cal, 107; 27 Pac. Eep. 533; Grove 
 V. Brandenburg, 7 Blackf. 234; Bailey v. Dean, 6 Barb. 297; Terry v. 
 Fellows, 21 La. An. 375; Hutchinson v. Lewis, 75 Ind. 65; Steinecke v. 
 Marx, ID Mo. App. 580 ; Story v. Wallace, 60 111. 51 ; Cooper v. Phipps 
 (Oreg.), 33 Pac. Rep. 985. 
 
 Naval, Military, and other Public Affairs. The bona fide exercise of 
 uaval, military, or other public authority is privileged. See White o. 
 Nichols, 3 How. 266. 
 
330 DEFAMATION. 
 
 open to discussion "whether the words were or were not in 
 the nature of fair conrment on the matter in hand, or 
 otherwise relevant or proper, or whether or not they were 
 used in good faith. 
 
 Other persons in judicial proceedings. Parties, advo- 
 cates, and witnesses in a court of justice are under the like 
 protection. They are subject to the authority of the Court 
 itself, but whatever they saj' in the course of the proceed- 
 ings and with reference to the matter in hand is exempt 
 from question elsewhere. It is not slander fpr a prisoner's 
 counsel to make insinuations against the prosecutor, which 
 might, if true, explain some of the facts proved, however 
 gross and unfounded those insinuations may be (b); nor 
 for a witness after his cross-examination to volunteer a 
 statement of opinion by way of vindicating his credit, which 
 involves a criminal accusation against a person wholly un- 
 connected with the case (c). The only limitation is that 
 the words must in some way have reference to the inquiry 
 the Court is engaged in. A duly constituted military court 
 of inquiry is for this purpose on the same footing as an or- 
 dinary court of justice (d). So is a select committee of 
 the House of Commons (e). Statements^ coming within 
 this rule are said to be " absolutely privileged." The rea- 
 son 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 reek- 
 
 Ex. 220, 37 L. J. Ex. 155; the protection Ex. Ch. and H. L., L. R. 8 Q. B. 255, 7 H. 
 
 extends to judielal acts, see the chapter L. 744, 45 L. J. Q. B. 8, see opinion of 
 
 of General Exceptions above, pp. 104 — Judges 7 H. L. at p. 752 ; DqoDldns v. Prince 
 
 106, and further illustrations op. Blake Edward of Saxe Wamar (1876), 1 Q. B. 
 
 Odgers, 188. D. 499, 45 L J. Q. B. 5B7. 
 
 (6) Mwaxlery.lMmb (1883), 11 Q.B. Div. {fi)fioffiny. DonneUy (1881), 6 Q. B. D. 
 
 588, where authorities are collected. 307, 50 L. J. Q. B. 303. A licensing meet- 
 
 (c) Seaman \, If etherclift (1876), 2 C. P. ing of a County Council is not a Court 
 Div. 53, 46 L. J. 0. P. 128. for this purpose : BoyaJ Aquarium Society 
 
 (d) DawUns v. Lord Bobehy (1873-5), v. Parklnsori, '92, 1 Q. B. 431, 0. A. 
 
PRIVILEGED COMMDNICATIONS. 331 
 
 less advocate, but deems this a less evil tlian exposing hon- 
 est witnesses and advocates to vexatious actions. 
 
 Reports of officers, etc. As to reports made in the 
 course of naval or military 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 
 privileged," 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 (/)• 
 
 Qualified immunity of " privileged communications." 
 
 There is an important class of cases in which a middle 
 course is taken between the common rule of unqualified re- 
 
 if) Vawhins v. Lord Paulet (.1889),!.. ^acft (1872), L.K.4P. C. 439,464,42 L. J.P. 
 
 R. 5 Q. B. 94, 39 1.. J. Q. B. 53, see the dis- C. 25, is quite neutral. Tiiey declined to 
 
 sentingiadgmentof Cockburu O. J.,and presiime that such an "absolute privi- 
 
 the notes of Mi^ Justice Stephen, Dig. lege" existed by the law and customs of 
 
 Or. Xi. art. 276, and Mr. Blake Odgeis, op. China as to ofScial reports to the Chinese 
 
 cit. 195. The reference of the Judicial Government. 
 Committee to the case In Mart v. Gum- 
 
 Qualified immunity of "privileged communications." As stated in 
 the text, comnianicatlons like those above mentioned, by members of 
 legislative or judicial bodies, are absolutely privileged. There are certain 
 occasions which permit communications not otherwise privileged ; and, 
 therefore, such communications may be said to be conditionally or 
 qualifledly privileged. 
 
 In Hastings v. Iiusk C22 Wend. 414), the court said: "In one class of 
 cases the law protects ,the defendant so far as not to impute malice to 
 him from the mere fact of his having spoken words of the plaintiff which 
 are in themselves actionable, though he may not be able to prove the 
 truth of his allegations. But the plaintiff will be able to sustain his 
 action for slander, if he can satisfy the jury, by other proof, that there 
 was actual malice on the part of the defendant, and that he utteree^ the 
 words for the mere purpose of defaming the plaintiff. In the other class 
 of cases the privilege Is an effectual shield to the defendant ; so that no 
 action of slander can be sustained against him, whatever his motive may 
 have been in using slanderous words." See Bacon v. Mich. Cent. R. Co., 
 66 Mich. 172; Briggs v. Garrett, 111 Pa. St. 414; Moore i7. Manufacturer's 
 
332 DEFAMATION. 
 
 sponsibility for one's statements, and the exceptional rules 
 which give, as we have just seen, absolute protection to the 
 kinds of statements covered by them. In many relations 
 of life the law deems it politic and necessary to protect the 
 honest expression 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. Occasions 
 of this kind are said to be privileged, and communications 
 made in pursuance of the duty or right incident to them 
 are' said to be privileged by the occasion. The term " qual- 
 ified privilege " is often used to mark the requirement pf 
 good faith in such cases, in contrast to the cases of " abso- 
 lute privilege " above mentioned. Fair reports of judicial 
 and parliamentary proceedings are put by the latest author- 
 ities 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 matter reported was " absolutely privileged " 
 as to the original utterance of it. 
 
 Conditions of the privUege. The conditions of im- 
 munity may be thus summed up: — 
 
 The occasion must be privileged ; and if the defendant 
 
 establishes this, he will not be liable unless the plaintiff can 
 
 prove (g) that the communication was not honestly made 
 
 ■for the purpose of discharging a legal, moral or -social 
 
 duty, or with a view to the just protection of some private 
 
 (g) The burden of proof is not on the Jenotire t. Dtlmege, '91, A. C. 73, 60 L. J 
 defendant to show his good faith : P. 0. 11, J. Q. 
 
 Nat. Bank, 123 N. Y. 420; 25 N. E. Eep. 1048; King v. Patterson, 49 N. J. 
 L. 420; Marks v. Baker, 28 Minn. i62; Nix ». Caldwell, 81 Ky. 295; 
 Rabelman ». Larchman, 14 Mo. App. 601; Lowry v. Vedder, 40 Minn! 
 475; Smitli v. Smith, 3 L. E. A. 62; 41 N. W. Bep. 499; Palmer o. Con- 
 cord, 48 N. H. 211; Warden v. Whalen, 8 Pa. Co. Ct. Kep. 660; Metzler 
 «. Bomine, 9 Id. 171. 
 
PRIVILEGED COMMUNICATIONS. 333 
 
 interest or of the public good by giving information 
 appearing proper to be given, but from some improper 
 motive and without due regard to truth. 
 
 Such proof may exist either in external evidence of 
 personal ill-feeling or disregard of the truth of the matter, 
 or in the manner or terms of the communication, or acts 
 accompanying and giving point to it, being unreasonable 
 and improper» " in excess of the occasion," as we say. 
 
 «' Express malice." The rule formerly was, and still 
 sometimes is, expressed in an artificial manner derived 
 from the style of pleading at common law. 
 
 The law, it is said, presumes or implies malice in all 
 
 " Express maUce." Express malice must be specifically proved; that 
 Is, It must be shown that outside of the language Itself there existed an 
 latent to injure the individual defamed. FoUasky v. Mlnchener, 81 Mich. 
 280; 46 N. W. Kep. 5; "Vickers v. Stoneman, 73 Mich. 419; Jno. "w. 
 Lovell Co. v. Houghton, 64 N. Y. Superior Ct. 60; Palmer v. Concord, 48 
 N. H. 211; Miner o. Detroit, etc., Co., 49 Mich. 368; Jellison o. Goodwin, 
 43 Me. 288. 
 
 Whatever tends to show the motive which prompted the utterance - 
 of the words is competent, under the general issue, as tending to 
 prove presence or absence of malice. Cameron v. Tribune Assoc. 7' 
 N. Y. S. Eep. 739; Steinecke v. Marx, 10 Mo. App. 580; Hotchkiss 
 V. Porter, 30 Conn. 414; Gribble v. Pioneer Press Co., 34 Minn. 193; 
 Hastings v. Stetson, 130 Mass. 76 ; York v. Pease, 2 Gray, 282 ; 
 Goot V. Pulsiter, 122 Mass. 235; Dixon v. Allen, 69 Cal. 527; Lewis 
 V. Chapman, 16 N. Y. 372; Wilson v. Noonan, 35 Wis. 321). As, 
 for example, in the Illinois case of Hintz v. Graupner (37 111. App. 
 510; 27 N. E. Eep. 935), it was held, that when defendant was asked why 
 be made charges against plaintifE, and he said that he had a grudge 
 against her father, it is competent to prove malice. Distinguishing 
 Stowell V. Begle, 57 HI. 97. See Ward v. Beane, 57 Hun, 585; Grace ». 
 McArthur, 76 Wis. 641; Freeman v. Sanderson, 123 Ind. 264; Wabash 
 Print. & Pub. Co. v, Crnmrine, 123 Ind. 89; Beneway v. Thorp, 77 Mich. 
 181. And in the case of Harris v. Zanone (93 Cal. 59; 28 Pac. Bep. 845), 
 it was held that in an action for slander, in uttering defamatory words 
 concerning plaintiff, evidence of the other utterance of words of similar 
 import is admissible to show malice. 
 
 Express malice must be proven in privileged communications to entitle 
 the plaintiff to recover. Remmgton ». Congdon, 2 Pick. 310; 13 Am. 
 Dec. 481; King v. Boot, 4 Wend. 113; 21 Am. Dec. 102; Fahr v. Hayes, 
 
334 DEFAMATION. 
 
 cases of defamatory words ; this presumption may be 
 rebutted by showing that the words were uttered on a 
 privileged occasion;' but after this the plaintiflFmay allege 
 and prove express or actual malice, that is, wrong motive. 
 He need not prove malice in the first instance, because the 
 iaw presumes it ; when the presumption is removed, the 
 field is still open to proof. But the " malice in law " which 
 was said to be presumed is not the s^ime as the " express 
 malice " which is matter of proof. To have a lawful 
 occasion and abuse it may be as. bad as doing harm with- 
 out any lawful occasion, or worse ; but it is a different 
 thing in substance. It is better to say that where there is 
 
 50 N. J. L. 275; 13 At. Bep_. 261; Conroy v. Pittsburgh Times, 139 Pa. St. 
 339; 21 At. Eep. 134; 27 W. N. C. 239; Schuyler v. Busbey, 68 gnn, 474; 
 23 N. Y. S. Eep. 102. 
 
 A repetition of the defamation may be shown to prove malice. 
 ■Reiten v. Goedel, 33 Minn. 151; Ward v. Dick, 47 Conn. 300; Noeninger 
 V. Vogt, 88 Mo. 589; Welch v. Tribune Pub. Co., 83 Mich. 661 ; 47 N. W. 
 Bep. 562. 
 
 So, a failure to publish a retraction promptly is evidence of malice. 
 Hermann v. Bradstreet Co., 19 Mo. App. 227. Contra, Bradley ». Cramer, 
 66 Wig. 297. 
 
 If the publication is ambiguous, express malice may be shown in order 
 to enhance the damages. Huson v. Dale, 19 Mich. 29; Thompson" o, 
 Powning, 15 Nev. 196; Bush v. Brosser, 11 N. Y. 347. 
 
 Express malice may be shown in aggravation of damages. True v. 
 Plumley, 36 Me. 481; Fowler v. Gilbert, 38 Mich. 292; Delaney v. Kaetel, 
 81 Wis. 353; 51 N. W. Eep. 559; Walker v. Wickens, 49 Kan. 42; 30 Pac. 
 Eep. 181. 
 
 So circumstances which disprove malice, may be given in evidence in 
 mitigation of damages. Gilman v. Lowell, 8 Wend. 575 ; Commonwealth 
 V. Snelling, 15 Pick. 340; Sick v. Owen, 47 Cal. 252. 
 
 Where malice is not inferred by law from the defamatory matter Itself 
 it is a proper question for the jury to pass upon and determine.. Law- 
 son V. Hicks, 38 Ala. 287; 81 Am. Dec. 49; Nott v. Stoddard, 38 Vt. 32; 
 Weaver v. Hendrick, 30 Mo. 606; Nebb v. Hope, 111 Pa. St. 145; Bacon 
 V. Mich. Cent. E. Co., 66 Mich. 166; 31 Am. & Eng. E. Cas. 357; Coleman 
 V. Playsted, 36 Barb. 26; Klinck v. C61by, 46 N. Y. 427; Hamilton t>. Ens, 
 81 N. Y. 116; Adcocks ». Marsh, 8 Ired. 361; AUiger v. Brooklyn Daily 
 Eagle, 6 N. Y. S. Eep. 110; Locke v. Bradstreet Co., 22 Fed. Eep. 772; 
 Fowles u. Bo wen, 30 N. Y. 20; Gassett v. Gilbert, 6 Gray, 94; Liddle v. 
 Hodges, 2 Bosw. 537; Erwin v. Surarow, 1 Hawks, 472. 
 
MORAL OR SOCIAL DUTY. 335 
 
 a duty, though of imperfect 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). 
 
 What are privileged occasions. The occasions giving 
 rise to privileged communications may be in matters of 
 legal or' social duty, as 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 ordinary sense of the word 
 for purposes of general information. 
 
 Moral or social duty. As to occasions of private duty ; 
 the result of the authorities appears to be that any state of 
 facts making it right in the interests of society for one 
 
 (A) See per Lord Blackbnrn, 7 App. Ca. 787. 
 
 Moral or social duty. There are communications which through pub- 
 lic policy and tor the good of society are recognized by law as privileged. 
 But such communications must be made bona fide upon a subject-matter 
 in which the party communicating has an interest, or in reference to 
 which he has a duty, and to a person having a corresponding interest or 
 duty. 
 
 Among communications belonging to this class are those of solicitor 
 to client, relative to relative, master to servant, partner to partner, etc. 
 
 1. Belatives. Pertinent communications among relatives in the inter- 
 est of each other, or from a stranger upon invitation, are privileged. 
 Eude .V. Nass, 79 Wis. 321; 48 N. W. Rep. 656. But the mere bonds of 
 friendship are not sufiBcient to render defamatory communications in 
 regard to another privileged. Byam v. Collins, 111 N. Y. 143; Joannes 
 V. Bennett, 5 Allen, 169. 
 
 2. Mercantile agencies: confidential inquiries. The reports of mercan- 
 tile agencies made in strict confidence, to those of their subscribers who 
 
336 DEFAMATION. 
 
 person to commanicate to another what he believes or has 
 heard regarding any person's conduct or character will 
 constitute a privileged occasion (i). 
 
 («) See per Blackburn J. In Davies v. Snead (1870), L. B. 5 Q. B. at p. 6U. 
 
 have an interest In the matter reported, are privileged. In the case of 
 Sunderlln v. Bradstreet (46 N. Y. 188), Mr. Justice Allen, in delivering 
 the opinion of the court, said : " A communication is privileged within the 
 rule when made in good faith, in answer to one having an interest in the 
 information sought; and it will be privileged if volunteered, when the 
 party to whom the communication is made has an interest in it, and the 
 party to whom it is made stands in such relation to him as to make it 
 a reasonable duty, or at least proper that he should give the informa- 
 tion. » * * In those cases in which the publication has been held 
 privileged, the courts have held that there was a reasonable occasion or 
 exigency, which for the common convenience and welfare of society, 
 fairly warranted the communication as made. But neither the welfare 
 nor convenience of society will be promoted by bringing a publication 
 of matters, false in fact, injuriously affecting the credit and standing 
 of merchants and traders, broadcast over the land, within the protec- 
 tion of privileged communications^" 
 
 In King v. Patterson (49 N. J. L. 431), the court said: "The publica- 
 tion of defamatory matter for personal- gain, can be tolerated only on 
 grounds of public convenience. The rights of individuals ought not to 
 yield to the exigencies of such a business more than the public interests 
 require." See Taylor v. Church, 8 N. Y. 452; State v. Lansing, 48 Wis. 
 348 ; Ormsby v. Douglass, 37 N. Y. 477 ; Kingsbury v. Bradstreet, 35 Hun, 
 212; Lowry v. Vedder, 40 Minn. 475; 42 N. W. Rep. 642; Trussell v. 
 Scarlett, 18 Fed. Eep. 214; .Johnson v. The Bradstreet Co., 77 Ga. 172; 
 Pollasky v. Minchener, 81 Mich: 280; 46 N. W. Eep. 6. 
 
 A pertinent answer to a confidential inquiry, thongb it communicates 
 a defamatory charge, is privileged. But the sending and delivery of the 
 answer must be done with proper caution and accuracy. Hubbard v. 
 Rutledge, 57 Miss. 7; Allen v. Railroad Co., 100 N. C. 397; Beals v: 
 Thompson, 149 Mass. 406; Klinck v. Colby, 46 N. Y. 427; Eobinett v. 
 Ruby, 13 Md. 95. 
 
 Also, where statements are volunteered but " where the relations of 
 the parties are such as to afford reasonable ground for supposing inno- 
 cent motives for giving the information," the communication is privi- 
 leged. Bradstreet v. Gill, 72 Tex. 115; 9 S. W. Rep. 753; Park «. Detroit 
 Free Press Co., 72 Mich. 660; 40 N. W. Rep. 731; Harper v. Harper, 10 
 Bush, 447; Parker v. McQuenn, 8 B. Mon. 16; Erber v. Dunn, 12 Fed. 
 Rep. 526; Alpin v. Morton, 21 Ohio St. 536; Perkins v. Mitchell, 31 Barb. 
 461 ; Mott V. Dawson, 46 la. 533. , 
 
 3. Master and servant. Any communication honestly made, relative 
 
SELF-PROTECTION. 337 
 
 Answers to confidential inquiries, or to any inquiries 
 made in the course of affairs for a reasonable purpose, are 
 clearly privileged. So are communications made by a 
 person to one to whom it is his especial duty to give 
 information by virtue of a standing relation between 
 them, as by a solicitor to his client about the soundness of 
 a security, by a father to his daughter of full age about 
 the character and standing of a suitor, and the' lilse. 
 Statements made without request and apart, from any 
 special relation of eonfidence may or may not be privileged 
 according to the circumstances ; but it cannot be prudently 
 assumed that they will be {j). 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 urgency 
 of the occasion, and other such points of discretion for 
 which no general rule can be laid down, will ail have their 
 weight; how far any of them will outweigh the general 
 presumption against officious interference must always be 
 more or less doubtful (k). 
 
 Self-ppotection. Examples of privileged communica- 
 tions in self -protection, or the protection of a common 
 interest, are a warning given by a master to his servants 
 
 0') Cases of this Mnd have been very Conxt was equallj' divided, rathei as to 
 
 tronblesome. SeeBlateOdgers 217—221. the reasonably apparent urgency ol the 
 
 (£) See Coxhead v. Richards (1846), 2 partlcalar occasion than on any definable 
 
 C. B. 569, 15 L. J. 0. P. 278, where the, principle. 
 
 to the character of a former employee in reply to an inquiry from one to 
 whom such servant has applied for employment is privileged. Terwllli- 
 ger V. "Wands, 17 N. Y. 54: Kennedy v. GrifEord, 19 Wend. 298; Van 
 Tassell v. Capron, 1 Denio, 250 ; Gassett v. Gilbert, 6 Gray, 94. 
 
 Self-protection. Communications are privileged when made in self r 
 defense, for example, if a man is attacked by a newspaper he may reply, 
 but his reply must not be unnecessarily defamatory of his assailant and 
 must be honestly made in self-defense. Chaffin v. Lynch, 83 Va. 106. 
 
 So, where the statement is invited by the plaintiff, as " where a mem- 
 
 22 
 
338 DEFAMATION. 
 
 DOt to associate with a former fellow-servant whom he has 
 discharged on the ground of dishonesty (?).; a letter from 
 a creditor of a firm in liquidation to another of the credi- 
 tors, conveying information and warning as to the conduct 
 of a member of the debtor firm in its affairs (m). The 
 holder of a public office, when an attack is publicly made 
 on his official conduct, may defend himself with the like 
 publicity (n). 
 
 Information for public good. Communications addressed 
 in good faith to persons in a public position for the pur- 
 pose of giving them information to be used ^or the redress 
 
 {I) Sommervillev. SawMne (1850), WC. (n) LaughUm v. Bishop of Sodor and 
 
 B. 583, 20 L. J. C. P. 133. Mam (1872), L. R. i P. 0. 495, 42 L. J. P. 
 
 (m) Spill T. JlfoMie,(1869), Ex. Ob. L. m C. 11. 
 i Ex. 232, 38 L. J. Ex. 138. 
 
 ber of a church had consented that the church should investigate any 
 eomplalnt which might be preferred against him In writing by a person 
 not a member, it was held, that an action for a libel could not be sustained 
 against such person making such complaint, without showing express 
 malice." Remington v. Coughdon, 2 Pick. 310. See Kirkpatrick v. 
 Eagle Lodge, 26 Kan. 384; Fonville v. Nease, Dudley (S. C), 303. 
 
 So, where there ig any interest arising from the joint exercise of any 
 legal right, privilege or duty, as that of two customers of the same bank 
 or two creditors of the same debtor. Klinck v. Colby, 46 N. Y. 427; 
 Gassett'o. Gilbert, 4 Gray, 94; Shurtleff v. Stevens, 51 Vt. 301; 31 Am. 
 Eep. 698; Shurtleff v. Parker^ 130 Mass. 293; 39 Am. Eep. 454; Jarvia v. 
 Hatheway, 3 Johns. 180; Combs v. Hose, 8 Blackf. 155; Hothholz v. 
 Dunkle, 53 N. J. L. 438; 22 At. Bep. 193. 
 
 Information lor public good. Petitions, memorials and all other 
 prope^ communications of misconduct on the part of a public officer, 
 to the authority having supervision of such office, are privileged com- 
 munications. 
 
 In Gray v. PentlandT2 Serg. & E. 23; 4 Id. 40), U was held, that " Ac- 
 cusations preferred to the Governor against a person in office, are so far 
 of the nature of judicial proceedings, that the accuser is not held to 
 prove the truth of them." See Vanderzee v. McGregor, 12 Wend. 545; 
 27 Am. Dec. 166; Hay v. Eeld, 85 Mich. 296; Kent v. Bongartz, 15 E. I. 
 72; Kimball 0. Fernandez, if. Wis. 329; Harris v. Harrington, 2 Tyler, 
 129; Elmer v. Fessenden, 151 Mass. 359; 22 N. E. Eep. 635; Wright v. 
 Lathrop, 149 Mass. 385; Greenwood v. Cobbey, 26 Neb. 449; 42 N. W. 
 
FAIR REPORTS. 339 
 
 of grievances, the 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 (o). The com- 
 munication to an incumbent of reports affecting 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 {p). 
 
 (o) Harrison v. Bush (1855), 5 E. & B. Privy Conncil against an ofloer whom 
 
 344, 25 L. J. Q. B. 25. There however it the Council Is by statute empowered to 
 
 was held that it was not, in fact, irregu- - remove are in this category; the abso- 
 
 lar to address a memorial complaining lute privilege of judicial proceedings 
 
 of the conduct of a justice of the peace cannot bo claimed for them, though the 
 
 to a Secretary of State (seethe judgment power in question may be exerciseable 
 
 of the Court as to the Incidents of that only on Inquiry : Proctor v. Webster 
 
 office), though it would be more usual (1885), 16 Q. B. D. 112, 55 L. J. Q. B. 150. 
 
 to address such a memorial to the Lord (.p) Clm-Tc v. Molyneux (1877), 3 Q. B. 
 
 Chancellor. Complaints made to the Div. 237, 47 L. J. Q. B. 230. 
 
 Rep. 413; Reid v. DeLorme, 2 Brev. 76; Howard v. Thompson, 21 Wend. 
 319; 34 Am. Dec. 238; Bradley v. Heath, 12 Pick. 163; 22 Am. Dec. 
 418; Bodwell v. Osgood, 3 Pick. 379; Larkin v. Noonan, 19 Wis. 82. 
 
 Bat where a man exercises the citizen's rigtt to denounce the action 
 of a public officer, it is unlawful for him to make a false and mali- 
 cious charge of crime or misdemeanor in office. Bowland v. DeCamp, 
 96 Pa. St. 493. 
 
 " Persons vested with the control of public institutions created by law, 
 and having quasi judicial duties to discharge in respect to the public, 
 are, while acting within the limits of their functions, prima facie exempt 
 from liability for publications which would otherwise be defamatory; " 
 as trustees of a school. I'ollowing Howard ». Sexton, 4 N. Y. 159. Hal- 
 stead V. Nelson, 36 Hun, 155. Same ruling applied to a medical society. 
 McKnight v. Hastaouck, 17 K. I. 70; 20 At. Rep. 95. 
 
 And to a secre^ society. Streety v. Wood, 15 Barb. 105. See 
 Broughton v. McGrew, 39 Fed. Kep. 672. So with ecclesiastical mat- 
 ters ; " If words actionable in themselves, be spoken between members 
 of the same church, In the course of their religions discipline and with- 
 out malice, no action will lie." Jarvis ». Hatheway, 3 Johns. 1 78 ; Am. 
 Dec. 473; Lucas v. Case, 9 Bush, 297; Servatious v. Pichel, 34 Wis. 292; 
 O'Donaghue v. McGovern, 23 Wend. 26; Chapman v. Calder, 14 Pa. St. 
 365; Farnsworth v. Storrs, 5 Cush. 412. 
 
340 DEFAMATION. 
 
 Fair reports. Fair reports (as distinguished from com- 
 ment) are a distinct class of publications enjoying the 
 protection of a " qualified privilege" to the extent to be 
 mentioned. The fact that imputations have been made on 
 a privileged occasion will, of course, not exempt from 
 liability a person who repeats them on an occasion not 
 privileged. Even if the original statement be made with 
 circumstanees of publicity, and be of the kind known as 
 "absolutely privileged," it cannot be stated as a general 
 rule that republication is justifiable. Certain specific 
 immunities have been ordained by modern decisions and 
 statutes. They rest on particular grounds, and are not to 
 be extended (g-). Matter not coming under any of them 
 must stand on its own merits, if it can, as a fair comment 
 on a subject of public interest. 
 
 Parliamentary papers. By statute (3 & 4 Vict. c. 9, 
 A. D. 1840) the publication of any reports, papers, votes, 
 or proceedings of either House of Parliament by the order 
 or under the authority of that House is absolutely protected, 
 and so is the republication in full. Extracts and abstracts 
 are protected if in tne opinion of the Jury they were pub- 
 lished bona Jide, and without malice (r). 
 
 Parliamentary debates and judicial proceedings. Fair 
 reports of parliamentary and public judicial proceedings 
 are treated as privileged communications. It has long been 
 settled (s) that fair and substantially accurate reports of 
 proceedings in courts of justice are on this footing. As 
 late as 1868 it was decided (t) that the same measure of 
 
 (g) See Davis v, Sh^stpne (1886), J. 0. (t) Wason t. Wiater, L. R. i Q. B. 73, 38 
 
 11 App. Ca. 187,55 L. J. P. O. Bl. L. J. Q. B. 34. And editorial comments 
 
 (r) See Blake Odgers, op. eU. 185-6, on a debate pablished by the same news - 
 
 Tiie words ot the Act, In their literal paper whicli publishes the report are 
 
 construction, appear to throw the bur- entitled to the benefit of the general 
 
 den of proving good faith on the pub- rule as to fair comment on public affairs: 
 
 Usher, which probably was not Intended, ib. Cp. the German Federal Constitu- 
 
 (s) Per cnr. In Wason v. Walter, L. E. tlon, arts. 22, 80. 
 4 Q. B. at p. 87. 
 
FAIE EEPOETS. 341 
 
 imtnuDity extends to reports of parliamentary debates, 
 notwithstanding tkat piroeeedings in Parliament are techni- 
 cally not public, and, still later, that it extends to fair 
 reports of the qoast-jodicial proceedings of a body estab- 
 lished for public purposes, and invested with quasi-judicial 
 authority for effecting those purposes (u). In the case of 
 judicial proceedings it is immaterial whether they are 
 preliminary or final, and, according to the prevailing 
 modern opinion, whether contested or ex parte, and also 
 whether the Court actually baa jurisdiction or not, provided 
 th-at it is acting in an apparently regular manner (a;). 
 The report need not be a report of the whole proceedings, 
 provided it gives a fair and substantially complete account 
 of the case : but whether it does give such an account has 
 been thought to be a pure question of fact, even if the part 
 which is separately reported be a judgment purpoi-ting to 
 state the facts (3/). The report must not in any case be 
 partial to the extent of misrepresenting the judgment (2). 
 It may be libellous to publish even a correct extract from 
 a register of judgments in such a way as to suggest that a 
 judgment is outstanding when it is in fact satisfied («); 
 but a correct copy of a document open to the public is not 
 libellous withoutsomesuehfurther defamatory addition {aa). 
 By statute "a fair and accurate report in any newspaper 
 of proceedings publicly heard before any court exercising 
 judicial authority " is, "if published contemporan^eously 
 with such proceedings," privileged: which seems to mean 
 
 (u) Alltmtt T. General Cowncll of Medi- i, 59 L. J. Q. B. 51T, the C. A. adhered to 
 
 cal Education f]889),2S Q. B. Biv. 400,53 their prevlons view (17 Q. B. Div. 636, 
 
 L. J. Q. B. 606. action between same parties) that a 
 
 (x) UnllY. Hales (1878), 3 C. P. D. 319, correct report of a judgment is prjT- 
 
 47 L. J. C. P. 323, where the proceeding lleged. 
 
 reported was an application to a police (») Boxwood f Co. v. Haywood ^ Son 
 
 magistrate, who, after hearing the facta (1886) , 34 Oh. D. 198, 56 L. J. Oh. 287. 
 
 stated, declined to act on the ground ol (a) Williams v. Smilh (1888), 22 Q. B. 
 
 ■want of jurisdiction : i«m» v. iej^y (1858) , D. 134, 58 L. J. Q. B. 21. 
 
 E. B. & E. 537, 27 L. J. Q. B. 282. (ao) Searles \. Scarlett, '92, 2 Q. B. 56, 
 
 (y) MacdougaU v. Knight (1889), 14 C. A., where the publication was ex- 
 
 App. Ca. 194, 58 L. J. Q. B. 537. But in pressly guarded: qu. as to Williams v. 
 
 Macdougall v. Knight (1890), 25 Q. B. Div. Smitli, see at pp. 62, 63, 64. 
 
342 DEFAMATION. 
 
 absolutely privileged, as otherwise the statute would not 
 add to the protection already given by the common law 
 (6). The rule does not extend to justify the reproduction 
 of matter in itself obscene, or otherwise unfit for general 
 publication (e), or of proceedings of which the publication 
 is forbidden by the Court in which they took place. 
 
 Volunteered reports. An ordinary newspaper report 
 furnished by a regular reporter is all but conclusively pre- 
 sumed, if in fact fair and substantially correct, to have 
 
 (6) 51 & 52 Vict. c. 64, 8. 3. The earlier (c) Steele -n. Brcmium (1872), L. R. 7 C. 
 
 cases are still material to sliow what is a P. 261 (a criminal case) ; 51 & 62 Vlot. o. 
 lair and accurate report. 64, s. 3. 
 
 Volunteered reports of public proceedings. It seems that a much 
 larger liberty is exercised in this country than in England In the publica- 
 tion and criticism of the proceedings before pdblic and indicial bodies. 
 " So many municipal, parochial and other public corporations, so many 
 large voluntary associations formed for almost every lawful purpose of 
 benevolence, business or interest, are constantly holding meetings, in 
 their nature public, and so usual is it that their proceedings are published 
 for general use and information, that the law, to adapt itself to this 
 necessary condition of society, must necessarily admit of these public 
 proceedings and a just and proper publication of them, as far as it can be 
 done consistently with private rights. * * * The general rule Is, that 
 any statement of wrongs and grievances, made by a party alleging himself 
 injured thereby, though they affect the reputation and credit oJE another, 
 if made to a tribunal or body having jurisdiction of the subject-matten 
 to inquire into the proceedings, and redress the grievance complained of, 
 1^ found to exist, are not libelous; and that a fair statement of these 
 proceedings when they have been acted upon and decided, made with an 
 honest view of giving useful information and where the publication will 
 not tend to obstruct the course of' justice and interfere with a fair trial, 
 is not libelous." Barrows v. Bell, 7 Gray, 312. See Story v. Wallace, 
 60 111. 51. 
 
 From what has been just said it may be reasonably concluded that fair 
 reports of judicial proceedings are privileged. And this rule is true, 
 as is clearly expressed in a brief quotation from the opinion of the 
 court delivered in the case of Cincinnati Gazette Co. v. Timberlake 
 (10 Ohio St. 552), as follows: "There is no doubt that a full, fain 
 and impartial report of a judicial trial, had in open court, where 
 the parties interested have an opportunity of asserting and vindicat- 
 ing their rights, may be published with impunity. Such reports, 
 
VOLUNTEERED REPORTS. 343 
 
 been published in good faith ; but an outsider who sends to 
 a public print even a fair report of judicial proceedings 
 containing personal imputations invites the question whether 
 he sent it honestly for purposes of information, or from a 
 motive of personal hostility ; if the latter is found to be 
 the fact, he is liable to au action (c?). 
 
 Newspaper reports of public meetings and of meetings 
 of vestries, town councils, and other local authorities, and 
 of their committees, of royal or parlimentary commissions, 
 and of select committees, are privileged under the Law of 
 Libel Amendment Act, 1888 (e). A public meeting is for 
 this purpose " any meeting bona fide and lawfully held for 
 a lawful purpose, and for the furtherance or discussion 
 of any matter of public concern, whether the admission 
 thereto be general or restricted." The defendant must not 
 have refused on request to insert in the same newspaper a 
 reasonable contradiction or explanation. Moreover " the 
 publication of any matter not of public concern, and the 
 publication of which is not for the public benefit," is not 
 protected {f ). 
 
 (d) Stevens v. Sampson (1879), 5 Ex. by sect. 2 of this Act. As to boards of 
 Div. 53, 49 L. J. Q. B. 120. guardians, see Pittard v. Oliver, '91, 1 
 
 (e) 51 & .52 vict. c. 64, s. 4. The ill- Q. B. 474, 60 L. J. Q. B. 219, C. A. 
 drawn enactment of 1S81 for the same (/) 51 & 52 Vict. c. 64, s. 4. In a 
 purpose, 44&45Vict.c. 61. s. 2, is repealed civil action on whom is the burden of 
 
 unaccompanied by malicious and defamatory comment, have always 
 been held privileged." But such reports must be confined to the 
 actual proceedings, and must contain no defamatory headings or 
 comments. Cowley v. Pulsifer, 137 Mass. 392; Cone v. Godshalb, 13 
 Phila. Eep. 573; Barber a. St. Louis Dispatch Co., 3 Mo. App. 377; 
 Scripps V. Eeilly, 35 Mich. 371; Pittock v. O'Niell, 63 Pa. St. 253; 3 Am. 
 Rep. 544; Bisselli!. Press Pub. Co., 62 Hun, 351; Johns u. Press Pub. Co., 
 19 N. Y. S. Rep. 3; Boehmer v. Detroit Free Press Co., 94 Mich. 7; 53 N. 
 W.Rep. 822. 
 
 If such proceedings are ex parte merely, or indecent or blasphemous 
 the privilege of reporting them is denied by law. See Terry v. Fellows, 
 21 La. An. 375 ; Torrey v. Field, 10 Vt. 353 ; Saunders v. Baxter, 6 Heisk, 
 369 ; Sanford v. Bennett, 24 N. Y. 20 ; McDerraott v. The Evening Journal, 
 43N. J. L. 488. 
 
344 DEFAMATION. 
 
 Excess of privUege. In the case of privileged communi- 
 cations of a confidential kind, the failure to use ordinary 
 means of ensuring privacy — as if the matter is sent on a 
 post-card instead of 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 {g). 
 But the privilege of a person making a statement as matter 
 of public duty at a meeting of a public body is not affected 
 by unprivileged persons being present who are not there at 
 his individual request or desire, or in any way under his 
 individual control, though they may not have any strict 
 right to be there, newspaper reporters for example (h). It 
 would also seem that if a communication intended to be 
 made on a privileged occasion is by the sender's negligence 
 (as by putting letters in wrong envelopes) delivered to a 
 person who is a stranger to that occasion, the sender has 
 not any benefit of privilege. The contrary has been de- 
 cided by a Divisional Court (i), but there is reason to think 
 that the decision is by no means universally accepted in the 
 profession as good law. 
 
 Honest belief is not necessarily reasonable belief. 
 
 Where the existence of a privileged occasion is estab- 
 lished, we have seen that the plaintiff must give affirmative 
 proof of malice, that is, dishonest or reckless ill-will (J), in 
 
 proof a8 to this? See Blafee Odgers («) Tompson v. Dashwood 0S83), 11 Q. 
 
 381-3, on the repealed section of 1881, B. D. 43, 52 L. J. Q. B.42S. 
 
 where however this qualification was by (j) A statement made recklessly onder 
 
 way of condition and not by way of the inflaence of e. g. gross prejadice 
 
 proviso. against the plaintiff's occupation in 
 
 (g) Williaimon v. Freer (1874), L. B. 9 general, though without any personal 
 
 C. P. 393, 43 L. J. 0. P. 161. hostility towards him, may be malicious : 
 
 (ft) PUtard V. Oliver, '91, 1 Q. B. 474, 60 Boyal Aquarium Bodetg v. Parldmon, '92, 
 
 L. J. Q. B. 219, C. A. 1 Q. B. 431, C. A. 
 
 Bzcess of privUego. The doctrine stated in the text is sustained by 
 the American authorities, for references to which, see ante, p. 245, note. 
 
EXCESS OF PRIVILEGE. 345 
 
 order to succeed. It is not for the defendant to prove 
 that his belief was founded on reasonable grounds, and 
 there is no difference in this respect between different 
 kinds of privileged commuuicsction (k). To constitute 
 malice there must be something more than the absence of 
 reasonable ground for belief in the matter communicated. 
 That may be evidence of reckless disregard of truth, but is 
 not always even such evidence. A man may be honest 
 and yet unreasonably credulous ; or it may be proper for 
 him to communicate reports or suspicions which he himself 
 does not.believe. In either case he is within the protec- 
 tion of the rule (I). 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 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 (m). In theory, however, the rela- 
 tion of the court to the jury is the same as in other ques- 
 tions of "mixed fact and law." Similar difficulties have 
 been felt in the law of Negligence, as we shall see under 
 that head. 
 
 Power of jury in assessing damages. In assessing 
 damages the jury " are entitled to look at the whole con- 
 duct of the defendant from the time the libel was pub- 
 
 (£) Jenour v. Delmege, '91, A. C. 73, GO (m) LaugM(m T. Bishop of Sodor and 
 
 L. J. P. 0. U (J. C.)- ^an 0872) , L. E. 4 P. C. 485, 11 L. J. P. C. 
 
 (2) Clark t. Molyneax (1S77), 3 Q. B. 11, and authorities there cited; Spill \. 
 
 DiT. 237, 47 L. J. Q. B. 230, per Bramwell MauU (1869), Ex. Ch. L. R. 4 Ex. 233, 38 
 
 Li. J. at p. 244; per Brett L. J. at pp. L. J. Ex. 138. 
 247-S; per Cotton L. J. at p. 249. 
 
 Po'wer of jury In assessing damages. Sapporting the text, vide 
 Humphreys v. Parker, 52 Me. 502; Clarkson o. McCarty, 5 Blackf. 574; 
 Bronghton o. McGrew, 39 Fed. Bep. 672; Marks v. Jacobs, 76 Ind. 216; 
 Henderson o. Fox, 83 Ga. 233; 9 S. E. Rep. 839; Lewis t;. Chapman, 19 
 Barb. 252; Jones v. Greeley, 25 Fla. 629; 6So. Rep. 448; Rogers v. Henry, 
 32 Wis. 327; Lowe v. Herald Co., 6 Utah, 175; 21 Pac. Rep. 991; 
 
346 DEFAMATION. 
 
 lished down to the time they gave their verdict. They 
 may consider what his conduct has been before action, 
 after action, aad in court during the trial." And the 
 verdict will not be set aside on the ground of the 
 "^damages being excessive, unless the Court thinks the 
 1 amount such as no twelve men could reasonably have 
 given (n). 
 
 Special procedure in actions for newspapei libels. 
 
 Lord Campbell's Act (6 & 7 Vict. c. 96, ss. 1, 2), contains 
 special provisions as to proving the offer of an apology in 
 mitigation of damages in actions for defamation, and pay- 
 ment into court together with apology in actions for libel 
 in a public print (o). 
 
 Limits of interrogatories In action for libel. Where 
 money has been paid into court in an action for libel, 
 the plaintiff is not entitled to interrogate the defendant as 
 to the sources of his information or the means used to 
 verify it (^J). 
 
 Bad reputation of plaintiff. A plaintiff's general bad 
 repute cannot be pleaded as part of the defence to an 
 
 (K) Praed t. Graham (1889), 24 Q. B. Order SXII. r. 1, and " The Annual 
 
 Div. 53, 55. Practice " thereon. See also 51 & 52 
 
 (o) The Eules oJ Court of 1875 had the Vict. o. 64, s. 6. 
 
 effect of enlarging and so far supersed- (ji) Pamell v. JFoJier (1890), 21 Q. B. D. 
 
 Ing the latter provision; bat see now 441. 
 
 Wimer v. AUbangh, 78 la. 79; 42 N. W. Rep. 587; Kennedy v. Woodrow, 
 6 Houst. 46; Rutherford v. Morning Journal Assoc, 47 Fed. Rep. 487. 
 The verdict will not be interfered with unless grossly excessive. Staf- 
 ford V. Morning Journal Assoc, 68 Hun, 467; 22 N. Y. S. Rep. 1008; 
 Rhodes u. Nagle, 66 Cal. 677; Wilson v. Fitch, 41 Cal. 386; Holmes u. 
 Jones, 69 Hun, 346; 23 N. Y. S. Rep. 631; Turners. Stevens, 8 Utah, 7B; 
 .30Pac. Rep., 24; Smith v. Sun Pub. Co., SO Fed. Rep. 399; Nunnally «. 
 Taliaferro, 82 Tex. 286; 19 S. W. Rep. 149; Grace v. McArthur (Wis.), 
 45 N. W. Rep. 518. 
 
INJUNCTIONS. 347 
 
 action for defamation, for it is not directly material to the 
 issue, but can be proved only in mitigation of damages(g'), 
 
 / 
 Injnnctions. We have already seen (r) that an injunc- 
 tion may be granted to restrain the publipktion of de- 
 famatory matter, but, on an interlocutory application, only 
 in a clear case (r), and not where the libel complained of 
 is on the face of it too gross and absurd to do the plaintiff 
 any material harm (s). Cases of this last kind may be 
 more fitly dealt with by criminal proceedings. 
 
 (3) Wood y. Durham (1S8S), 21 Q.B.X). {r) Bonnard v. Ferryman, '91.2 CJli. 
 
 601,571.. J. Q.B. 547. [Walters i). Smoot, 269, 60 L. J. Ch. 617, 0. A. p. 178, above; 
 
 11 lied. 315 ; Barton v. March, 6 JoneB L. for a later example of injunction 
 
 409 ; Bryan v. Gurr, 27 Ga. 378 ; Parkhurst granted, see CoUaard v. Marshall, '92, 1 
 
 V. Ketchnm, 6 Allen, 406 ; Powers v. Pres- Ch. 571. 
 
 groves, 38 Minn. 227 ; Morey v. Morning (s) Salomons v: Knight, '91, 2 Oh. 294, 
 
 Journal Assoc, 123 N. Y. 207; 26 N. E. 60 L. J. Ch. 743,0. A. 
 Kep. 161.] 
 
 Injunctions. Contrary to the doctrine stated In the text, it is well 
 settled in America that an injunction wiU not be granted to restrain libel 
 or slander of title or reputation. " Not that it is not a wrong, not that 
 the wrong might not be irreparable, but simply because courts of chan- 
 cery, in the exercise of the extraordinary powers lodged in them, have 
 uniformly refused to act in such a case, leaving parties to their remedy 
 at law. * * * Equity, it must be remembered, will not enjoin every 
 wrong. There are injuries done by one man to another which no law 
 will remedy. Telling lies, unless those of a peculiar character, is one 
 of such injuries. * * * Libel and slander, however illegal and out- 
 rageous, will not be enjoined." The Singer, etc., Co. v. The Domestic, 
 etc., Co., 49 Ga. 73; 15 Am. Kep. 674. 
 
 The exercise of this power by a court of equity would be repugnant to 
 the provision of the constitution fArt. 1, § 8) which declares that, 
 every citizen may freely speak, write and publish his sentiments on all 
 subjects, being responsible for the abuse of the right; and that no law 
 shall be passed to restrain or abj-idge the liberty of speech or of the 
 press. Guardian Soc. v. Roosevelt, 7 Daly, 191. See Maugher v. Dick, 
 55 How. Pr. 132; Wetmore i). Scovell, 3 Edw. Ch. 515; Life Assoc, v. 
 Boogher, 3 Mo. App. 179; Brandreth ». Lance, 8 Paige, 23; 34 Am. Dec. 
 368. See ante, p. 178. 
 
348 
 
 CHAPTER VIII. 
 
 WRONGS OF FEAUD AND MALICE. 
 
 I. — Deceit. 
 
 Nature of the wrong. la the faregoing chapters we 
 dealt with wrongs affeeting the so-ealled primary rights to 
 security for a man's person, to the enjoyment of the 
 society and obedience of his family, and to his reputatioB 
 and good name. In these cases, exceptional conditions 
 excepted, the knowledge 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 defamaction, 
 as we have just seen, the artificial use of the word 
 "malice" notwithstanding. We now come to a kind of 
 wrongs in which either a positive wrongful inftention, or 
 siTchi ignorance or indifference as amounts to guilty reek- 
 lessness (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 unrighteousness 
 of the defendant. 
 
 Concurrent jurisdiction of cdmnu>n law and equity. 
 
 The wrong called Deceit consists in leading a man into 
 damage by wilfully or recklessly causing him to believe 
 
 Oonourxent jurisdiotioii of common law and equity. In actions for 
 deceit, in general, courts of law and courts of equity have concurrent 
 jurisdiction. " It is admitted th^t in equity an actual design to mislead 
 is not necessary jf a party is actually misled by anotner in a bar- 
 gain. » * * There is no reason for a difference in action in such 
 cases between courts of laiy and courts of equity. Where an equitable 
 
DECEIT. 349' 
 
 and act on a falsehood. It is a cause of action by the com- 
 mon law (the action being an action on the case founded 
 on the ancient writ of deceit (a), which had a much nar- 
 rower scope): and it has likewise been dealt with by courts 
 of equity under the general jurisdiction of the Chancery in 
 matters of fraud. The principles worked out in the two 
 jurisdictions are believed to be identical (6), 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, 
 
 Difflciilties of the subject : complieatioii -with contract. 
 
 The subject has been one of considerable difficulty for 
 several reasons. 
 
 First, the law of tort is here much complicated M?ith the 
 
 (a) F. N. B. 95 E. sqq. H. L. at p. 390. 
 
 (6) See per Loid Clielmsfor<}, L. B. 6 (c) See p. 179, above. 
 
 cause of grieyahce exists, it in no way differs from a legal one unless a 
 different remedy is needed. A court of law cannot cancel a contract, and 
 for such a purpose the equitable remedy must be sought. But where the 
 relief desired is compensation for the wrong, the equitable remedy is 
 much less appropriate, and an action In equity for mere damages will 
 generally be denied, but denied only because the legal remedy is better. 
 If there could be no legal remedy, there can be no doubt that equity 
 would act. If the fraud is such that it creates a right of action any- 
 where, an action must lie on the case where a money judgfnent is 
 needed." Holcomb v. Noble, 69 Mich. 397; 37 N. W. Kep. 497. See 
 Matlock V. Eeppy. 47 Ark. 148; 14 S. W. Eep. 646; Smith v. Mclver, 9 
 Wheat. 632 ; Tomlin v. Cox, 4 Harr. (N. J.) 76 ; Skine v. Simmons, 11 
 Ga. 401 ; Gilbert v. Borgatt, 10 Johns. 457. 
 
 There are, however, variances from this rule, but the authorities assum- 
 ing to point out the distinction separating cases of law and of equity 
 are not uniform. Hazard v, Irwin, 18 Pick. 95; Burrows v. Alter, 7 Mo. 
 424; Higgs v. Smith, 3 A. K. Marsh. 338; Rogers v. Colt, 1 Zab. 713. 
 
 Deceit in connection with contract. In the execution of contracts 
 good faith on the part of all the parties is required by law. " The con- 
 
350 WRONGS OF FRAUD AND MALICE. 
 
 law of contract. A false statement may be the induce- 
 ment to a contract, or may be part of a contract, and in 
 these capacities may give rise to a claim f or^ the rescission 
 
 tractiDg parties are bound to deal honestly and act In good faith with 
 each other. There should be a reciprocity of candor and fairness. Both 
 shall have equal knowledge concerning the subject-matter of the contract; 
 especially ought all the facts and circumstances which are likely to Influ- 
 ence their action to be made known. If they have not mutually this 
 knowledge, nor the same means of obtaining it, it is then a duty incum- 
 bent on the one having the superior information to disclose it to the 
 other. In making the disclosure, he is bound to act in good faith and 
 with regard to truth. If he makes false representations regarding 
 material facts, or intentionally conceals or suppresses them he acts 
 fraudulently, and renders himself responsible for the consequences 
 which may result." Mitchell v. McDougall, 62 111. 601. 
 
 And it is also true, that " The nfisrepresentation in order to afEect the 
 validity of the contract must relate to some matter of inducement to the 
 making of the contract, in which from the relative position of the parties 
 and their means of information, the one must necessarily be presumed 
 to contract upon the faith and trust which he reposes in the representa- 
 tions of the other, on account of his superior information and knowledge 
 in regard to the subject of the contract; for if the means of information 
 are alike accessible to both, so that with ordinary prudence or vigilance 
 the parties might rely upon their own judgment they must be presumed 
 to have done so; or if they have not so informed themselves, must abide 
 the consequences of their own inattention and carelessness. Such rep- 
 resentations, therefore, to amount to fraud must have a decided and 
 reliable character, holding out inducements to make the contract, calcu- 
 lated to mislead the purchaser and induce him to buy on the faith and 
 confidence of the representations, and in the absence of such means of 
 information to be derived from his own observation dnd inspection, and 
 from which he could draw conclusions to guide him in making the con- 
 tract independent of the representations of the vendor." Mr. Justice 
 Walker in Ideates v. Pryor, 11 Ark. 58. See Mooney v. Miller, 102 Mass. 
 220; Morse v. Dearborne, 109 Mass. 593; Melville v. Gary, 76 Md. 221; 
 24 A. Eep. 604; Dargan v. Ellis, 81 Tex. 194; Wimer v. Smith, 22 Oreg. 
 469; 30 Pac. Eep. 416; Davidson v. Wheeler, 17 R. I. 433; 22 At. Rep. 
 1022; 2 Kent's Com. 482; Hobbs v. Parker, 31 Me. 143; Stanhope v. 
 Swafford, 80 la. 45; 45 N. W. Rep. 403; Phelps o. James, 79 la. 262; 47 
 N. W. Eep. 543. 
 
 By the civil law the seller, by the very nature of the contract of sale, 
 became bound in an Implied warranty that ]the thing sold was exempt 
 from defects, without any reference to his knowledge of them. But the 
 common law of sales is different. " Here there is no implied warranty 
 
DECEIT. 351 
 
 of the contract obtained by its means, or for compensation 
 for breach of the contract or of a collateral warranty. A 
 false statement unconnected with any contract may like- 
 
 against defects unless there be fraud by some false representation or 
 undue concealment." McAdams v. Gates, 24 Mo. 224. " If a seller of 
 goods deceives the buyer as to their quality, the buyer cannot avail him- 
 self of the deceit in defence against an action for their price, or, reduc- 
 tion of damages therein, if the quality was open to his own observation 
 and with ordinary diligence and prudence he could have ascertained it. 
 Brown v. Leach, 107 Mass.^364. On the other hand, " It is the duty of a 
 vendor to disclose any defect in the article which he is vending, unless it 
 is palpable to the purchaser." Singleton v. Kennedy, 9 B. Mon. 225. 
 See Lobdell o. Baker, 1 Mete. 193. The fraudulent concealment by the 
 vendor of a secret defect in an article sold by him, wholly unknown to 
 the vendee, may be the foundation of an action for damages by him 
 against the vendor, and perhaps authorize the vendee to rescind the con- 
 tract on discovery of the fraud; because the law implies a warranty that 
 the goods or articles sold are of a merchantable quality." Cross v. 
 Peters, 1 Me. 393; Hazard ». Irwin, 18 Pick. 105. See Tyre v. Causey, 4 
 Harr. (Del.) 425; Fisher v. Mellen, 103 Mass. 503; Eice v. Barrett, 116 
 Id. 312; Hillman v. Wilcox, 30 Me. 170; McGregor v. Penn, 9 Yerg. 74; 
 Tewkesbury v. Bennett, 31 la. 83; Iron Works v. Moore, 78 111. 65; 
 Stone V. Govell, 29 Mich. 359 ; Hawkins v. Pemberton, 61 N. Y. 198 ; 
 Morrill v. Wallace, 9 N. H. Ill; Chapman v. Murch, 19 Johns. 290; Hub- 
 bell V. Meigs, 50 N. Y. 491 ; Lomerson ». Johnston, 47 N. J. Eq. 312 ; 20 
 At. Rep. 675. 
 
 "In the case of sale of property, the law presumes that the purchaser 
 reposes confidence in the vendor, as to all such defects as are not within 
 the reach of ordinary observation and therefore it imposes the duty on 
 the vendor to disclose fully and fairly his knowledge of all such defects. 
 But in ordinary casfes, the vendor reposes no such confidence in the pur- 
 chaser. The former does not look to the latter for information in regard 
 to the qualities or condition of the thing sold, and is not deceived or 
 misled by any information the latter may have in regard to it. And 
 hence it has been held, that a purchaser may use any Information he may 
 have in regard to property, for his own advantage, without disclosing it, 
 provided he does nothing to mislead or deceive." Ijikewise, it is true 
 that the vendee is not, in general, bound to communicate to the vendor, 
 intelligence of extrinsic circumstances, exclusively within the knowledge 
 of the vendee, which may afiect the price of the goods transferred. 
 Laidlaw v. Organ, 2 Wheat. 178. See Kintzing v. McElrath, 5 Pa. St. 467. 
 
 It is a rule of law no doubt as long established as the existence of fraud 
 Itself that fraudulent representation of material facts relating to subject 
 of a contract render it invalid. Bond v. Ramsey,. 89 HI. 29; Durkin 
 
352 WRONGS OF FKAUD AND MALICE. 
 
 wise create, by way of estoppel, an obligation analogous to 
 contract. And a statement capable 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 warrant that,' that is a contract. If you say, ' I know 
 it,' and if you say that in order to save the trouble of 
 inquiry, that is a false representation — you are saying 
 what is false to indue&them to act upon it " {d). 
 
 The grounds and results of these forms of liability are 
 largely similar, but cannot be assumed to be identical. The 
 authorities establishing what is a cause of action for deceit 
 are to a large extent convertible with those which define the 
 right to rescind a contract for fraud or misrepresentation, 
 and the two classes of cases used to be cited without any 
 express discrimination. We shall see however that dis- 
 crimination is needful. ' ' 
 
 (d) Lord Blackburn, JBrovmlie v. Campbell (18S0), 5 App. Ca. (So.) at p. 593. 
 
 ®. Cobleigh, 156 Mass. 108; 30 N. E. Rep. 474; High v. Berrett, 148 Pa. 
 St. 261 ; 23. At. Rep. 1004 ; 30 W. N. C. 31 ; Winter v. Bandel, 30 Ark. 372. 
 But fraudulent representations, relating not to the subject- matter of the 
 contract, but to mere matters of collateral inducement, will not justify 
 the setting aside of a contract or conveyance. Hill v. Bush, 19 Ark. 322. 
 It has been held that misrepresentations in insurance casos, made by 
 the Insured, innocently, will not avoi<i the policy. " In order to defeat 
 the contract the representations or answers to questions must be known 
 to be false by the insured." Mut. Ben. Life Ins, Co. v. Robertson, 59 HI. - 
 123. But the general rule seems to be to the contrary, Aetna Life Ins. 
 Co. V. France, 91 U. S. 510; Vose v. Eagle Life Ins. Co., 6 Cush. 42; Mut. 
 Ben. Life Ins. Co. v. Cannon, 48 Ind. 264. '< Thus, the answers contained 
 In the application being in the nature of representations only, the ques- 
 tion is of their substantial and not their literal truth. To defeat the 
 policy they must be shown to be materially untrue, or untrue In some 
 particular material to the risk." Campbell v. N. E. Mut. Life Ins. Co. 
 98 Mass. 395. 
 
DECEIT. 353 
 
 Questions of fraudulent intent. Secondly, there are 
 difficulties as to the amount of actual fraudulent intention 
 that must be proved against a defendant. A man may be, 
 
 Fraudiilent Intent. In general it may be said that fraudulent intent 
 is essential to sustain an action of deceit. " Fraudulent intent is the 
 gist of the action." Kootz v. Kaufman, 31 Mo. App. 420. Such intent 
 may be proved by evidence. This, however, is often difficult, or presumed 
 by law. " In order to sustain an action for deceit, the fraudulent intent 
 must be established; but it may be inferred from the fact that the false 
 statements are made withknowledge of their falsity. And where a party 
 who may be presumed to know, or who is in a position to know, the 
 truth, deliberately makes unqualified representations in respect to a 
 material matter, in such manner as to import knowledge by him of their 
 truth, for the purpose of inducing another to act upon them, a similar 
 inference may arise and, in such case, if a party has acted in reliance on 
 such representations, he is entitled to maintain an action for the injury 
 sustained thereby." Haven v. Neal, iS Minn. 316. See Hubbard v. 
 Weare, 79 la. 678 : 44 N. W. Kep. 915 ; First Nat. Bank v. North (S. Dak.), 
 51 N. W. Eep. 96; Mclntyre v. Buell, 132 N. Y. 192; 30 N. E. Rep. 396; 
 Marshall v. Hubbard, 117 U. S. 415; Barnett v. Stanton, 2 Ala. 187; Bdtck 
 V. Grim, 10 Barb. (N. T.), 445 
 
 On the other hand, where one innocently makes a representation to 
 another which results in that other's deception and injury it is obviously 
 unfortunate for both and the damage done cannot be adjusted without 
 working a hardship on one or both of them, but as the policy of the law is 
 to make persons responsible for their acts and utterances the majority of 
 the decisions are to the effect that such injuries must be compensated. 
 " A misrepresentation of a material fact, innocently made, but which 
 acts as an inducement to the act of another, who is thereby injured, is a 
 fraud which can be relieved in equity." Davis v. Heard, 44 Miss. 477. 
 " The doctrine is settled hereby a long line of cases, that if there was in 
 fact a misrepresentation, though made innocently, and its deceptive in- 
 fluence was efEective, the consequences to the plaintifE being as serious 
 as though it had proceeded from a vicious purpose, he would have a right 
 of action for the damage caused thereby either at law or in equity." 
 Holcomb V. Noble, 69 Mich. 396; 37 N. W. Rep. 497; citing Baughman v. 
 Gould, 45 Mich. 483; 8 S. W. Eep. 73; Converse v. Blumrich, 14 Mich. 
 1()9 ; Steinback v. Hill, 26 Id. 78 ; Webster v. Baily, 31 Id. 36 ; Starkweather 
 V. Benjamin, 32 Id. 305; and followed in Totten ». Burhans, 91 Mich. 495; 
 51 N. W. Rep. 1119. So in Missouri. Ring o. Vogel Paint & Glass Co., 
 44 Mo. App. Ill; but see Dunaley v. Rogers, 64 Mo. 203. So in Wis- 
 consin. Burke v. Milwaukee etc. Ry. Co., 83 Wis. 410; 53 N. W. Eep. 
 692. 
 
 The question of fraudulent intent is usually one for the. jury. Meyer 
 
 23 
 
354 WRONGS OF FRAUD AND MALICE. 
 
 to all practical intents, deceived and led into loss by rely- 
 ing on words or conduct of another which did not proceed 
 from any set purpose to deceive, but perhaps from an un- 
 founded expectation that what he stated or suggested would 
 be justified by the event. In such a case it seems hard that 
 i 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 careless man may 
 do as much harm as a deliberately fraudulent 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 judges, 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 righteous and beneficial jurisdiction, to such vague and 
 confusing phrases as " constructive fraud," or " conduct 
 fraudulent in the eyes of this Court." Thus they obtained 
 in a cumbrous fashion the results of the bolder Roman 
 maxim culpa lata dolo aequiparatur. The results were 
 good, but, being so obtained, entailed the 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 objectionable term, but it does not 
 follow that it has no real meaning (e). One might as well 
 say that the " common counts " for money had and re- 
 ceived, 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 " 
 
 (e) See per Lord Bramwell, Weir v. Bell, 3 Ex. D. at p- 243; Derry v. Peek, 14 
 App. Ca. at p. 316. 
 
 V. Amidon, 23 Hun, 633; Hazard v. Irwin, 18 Pick. 96; Salisbury v. Howe, 
 27 N. Y. 128; Page v. Bent, 2 Mete. 371; Cowley v. Smith, K N. J. L. 
 280; Humphrey v, Merriam, 32 Minn. 197; 20 N. W. Rep. 138. 
 
DECEIT. ' 355 
 
 which they supposed was not founded on any actual request 
 or promise. 
 
 Fraud of agents. Thirdly, special diflSculties of the 
 same kind have arisen with regard to false statements made 
 by an agent in the course of his business and for his prin- 
 cipal's purposes, but without express authority to make 
 such statements. Under these conditions it has been 
 thought 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 cor- 
 poration, for a corporation has been supposed not to be 
 capable of a fraudulent intention. We have already touched 
 on this point (/"); and the other difficulties appear to have 
 been surmounted, or to be in the way of being surmounted 
 by our modern authorities. 
 
 General conditions of tbe right of action. Having in- 
 dicated the kind of problems to be met with, we proceed to 
 the substance of the law. 
 
 To create a right of action for deceit there must be a 
 statement made by the defendant, or for which he is 
 answerable a(S principal, and with regard to that statement 
 all the following conditions must concur : 
 
 (a) It is untrue in fact. 
 
 (b) The person making the statement, or the person 
 
 responsible for it, either knows it to be untrue, 
 or is culpably ignorant (that is, recklessly and 
 consciously ignorant) {g) 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 (h). 
 
 (/) p. 53, above. The difflcultles may (.g) Lord Hersohell, Derrn v. Peek 
 
 be said to have culminated in Udell v. (1889), 14 App. Ca. at p. 371. 
 Atherton (1861), 7 H. & N. 172,30 L. J. Ex. (ft) See PolhiU V. Walter, 3 B. & Ad. 
 
 337, where the Court was equally divided. 114, 123. 
 
356 WRONGS OF FRAUD AND MALICE. 
 
 (d) The plaintiff does act in reliance on the statement 
 
 in the manner contemplated or manifestly prob- 
 able, and thereby suffers damage (J). 
 There is no cause of action without both fraud (/) and 
 actual damage, or the damage is the gist of the action (k). 
 And according to the general principles of civil liability, 
 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 statutory, 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. 
 
 Falsehood In fact, (a) A statement can be untrue in 
 fact only if it purports to state matter of fact. A promise 
 is distinct from a statement of fact, and breach of contract, 
 
 (i) Op. for the general rnles Lord Smith v. Cliadimck (1882), 20 Oh. Div. at 
 
 Hatheiley (Page Wood V.-C), Barry v. p. 75. 
 
 Croshey (1861), 2 J. & H. at pp. 22-3, ap- 0') Derry v. Peek (1889), U App. Oa. 
 
 proved by Lord Cairns in Jeeftv. eiwitej;, 337, 374, 58 L. J. Ch. 864. 
 
 L. E. 6 H. L. at p. 413; Bowen L. J., (4) Lord Blackbom, SvnMh v. Chad- 
 
 Edgington v. Fitzmawrice (1885), 29 Oh. wick (1884), 9 App. Ca. at p. 196. 
 Div. at pp. 481-2; and Llndley L. J., 
 
 Falsehood in fact. Promises and other representations made as to 
 facts that will probably transpire in the future are mere expressions of 
 Opinion and when false cannot be made the -ground of actions for deceit. 
 Gallagher o.-Brnnel, 6 Cow. 347; Markel v. Mondy, 11 Neb. 213; Pedrick 
 V. Porter, 5 Allen, 324; Saunders v. McClintock, 46 Mo. App. 216; J"arrar 
 D. Bridges, 3 Humph. 566; Murray v. Beckwtth, 48 111. 391; Lexow ». 
 Julian, 21 Huh, 677; Burt v. Bowles, 69 Ind. 1; Sieveklng v. Litzle, 31 Id. 
 13; Long v. Woodman, 58 Me. 49. These representations of facts to 
 come into existence in the future are such as are based upon general 
 knowledge, information, and judgn^ent, as distinguished from represen- 
 tations which, from knowledge peculiarly' a party's own, for he may 
 ce'rtairily know whether they are true or false. Sawyer «. Prlckett, 19 
 Wall. 146. For a specific promise that a certain thing will orwill not be 
 
WHAT IS DECEIT. 357 
 
 "whether from want of power or of will to perform one's 
 promise, is a different thing from deceit. Again a mere 
 
 done in the future, when made fraudulently, may be the means of effect- 
 ing a cheat, and is actionable if injury results. Wilsop v. Eggleston, 27 
 Mich. 257; I^aing v. McKee, 13 Mich. 124; Goodwin v, Home, 60 N. H. 
 486: Btchardson v. Adams, 10 Yerg. 273; Gross v. McKee, 53 Miss. 636; 
 Powd V. Tucker, 41 Conn. 197; Kimball v. Insurance Co., 9 Allen, 540; 
 Morrill V. Blackman, 42 Conn. 324; Bawdon v. Blatchford, 1 Sandf. 344; 
 Schufeldc V. Schintzler, 21 Hun, 462; Johnson v. Monell, 2 Keyes, 663; 
 Buckley v. Artcher, 21 Barb. 585; Eaton v. Avery, 83 N. Y. 31. 
 
 A mere false assertion 'as a matter of opinion, which does not imply 
 knowledge, is not generally deceit in law. One reposes at his peril in 
 the opinions of others when he has equal opportunity to form and exer- 
 cise his own judgment. 
 
 An expression of judgment or opinioq. does not amount tP a warranty. 
 Saunders o. Hatterman, 2 Ired. 32; McBeth v. Craddock, 28 Mo. App. 
 392; Medbury v. Watson, 6 Mete. 246; Ellis v, Andrews, 56 N. Y. 83; 
 Marshall v. Peck, 1 Dana, 611; MorrUl v. Wallace, 9 N. H. Ill; t)ungan 
 V. Coreton, 1 Ark. 41 ; Frenzee v. Miller, 87 Ind. 1 ; Fulton v. Hood, 34 
 Pa. St. 365; Kobbins v. Barton, 50 Kan. 120-, 30 Pac. Kep. 686; Bristol ». 
 Braidwood, 28 Mich. 191; Lehman v. Shackelford, 50 Ala. 437; Payne v. 
 Smith, 20 Ga. 654; Sieveking v. Litzlpr, 31 Ind. 13; Mahurin v. Harding, 
 28 N. H. 32; Eowell v. Chase, 61 N. H. 135; Darlln v. Stewart, 63 Vt. 575; 
 22 At. Bep. 634; Nash v. Minnesota T. G. Co. (Mass.), 34 N. E. Rep. 
 625. But it might be otherwise if in connection with the expression of 
 opinion there were false assertions of fact, calculated, if true, to giye a 
 basis for the opinion. McAleer v. Horsey, 35 Md. 439 ; Dargan v. Ellis, 
 81 Tex. 194; 16 S. W. Rep. 789. 
 
 In the New York case of Chrysler v. Canaday (90 N. Y. 272), Miller J., 
 in delivering the opinion of the court, said: "The rule is well settled 
 that a naked assMtion by a vendor of the value of the property offered 
 for sale, even although untrue of itself and known to be such by him, 
 unless there is a want of knowledge by the vendee, and the sale is 
 made in entire reliance upon the representation! made, or unless some 
 artifice is employed to prevent inquiry or the obtaining of knowl- 
 edge by the y«iidee, will not render the vendor respQnsible to the 
 vendee for damages sustained by him." Therefore, for a vepdor to 
 assert that the lands he is negotiating to sell are of a particular value, 
 greatly above their real worth, or to exaggerate their fertility or other 
 good qualities, is no fraud. Holton v. Noble, 83 Cal. 7 ; 23 Pac. Rep. 58 ; 
 Sherwood v. Salmon, 2 Day, 128; King v. Mills, 10 411eo, 548; Barnett 
 V. Stanton, 2 Ala. 187; Mooney v. Miller, 102 Mass. 217; Manning b. 
 •Albee, 11 Allen, 520; Schumakers. Mather, 133 N. Y. 590; 30 N. E. 755; 
 Gcrdan v, Pswmalle, 35 111. App. 212; Credle v. SFJndie, 63 N. C. 305; 
 Simon V. Caaaday, 63 N. Y. 298; 13 Am. Kep. 523; Holbrook f. Connor, 
 
358 WRONGS OF FKAUD AND MALICE. 
 
 statement of opinion or inference, the facts ^on which it 
 purports to be founded being notorious or equally known 
 
 60 Me. 578; Wilkinson v. Clauson, 29 Minn. 91; Hartman v. Flaherty, 80 
 Ind. 472; Shade o. Creviston, 93 Ind. 491; Griel v. Lomax, 86 Ala. 132; 
 5 So. Rep. 325; 6 La. Eep. 741; Schumaker v. Mather, 133 N. Y. 590; 30 
 N. E. Rep. 755. It is held by some courts that statements of yalue with 
 intent to deceive are actionable. Cruess v. Fessler, 39 Cal. 336 ; GiflEord 
 V. Carvell, 29 Cal. 589; Davis v. Jackson, 22 Ind. 233; Van Epps v. Har- 
 rison, 5 Hill, 63; Bradley v. Bosley, 1 Barb. 125; McAleer v. Horsey, 35 
 Md. 439; McFadden v. Robinson, 35 Ind. 24; Morehead v. Eades, 3 Bush, 
 121 ; Compare Tuck v. Downing, 76 111. 71 ; Hemnor v. Cooper, 8 Allen, 
 334 ; Cooper v. Lovering, 106 Mass. 77. 
 
 A vendee of lands has a right to rely upon the positive statements of 
 the vendor, as to the quantity of land bought. Hill v. Brower, 76 N. C. 
 124; CuUum v. Branch Bank, 4 Ala. 21; Sangster v. Prather, 34 Ind. 504; 
 Boon V. Atwell, 46 N. H. 610; Whitney v. Allaire, 1 N. Y. 305; Beardsley 
 V. Duntley, 69 N. Y. 577; Starkweather v. Benjamin, 32 Mich. 305; Dun- 
 can K. Cobly, 139 Mass. 398; 1 N. E. 474. So, also, in respect to bound- 
 aries of land. Sanford v. Handy, 23 Wend. 260; Weatherford v, 
 Fishback, 4 111. 170; Clark ». Baird, 9 N. Y. 183. 
 
 But there are exceptions to the general rule as above announced, as 
 where there exist between the parties such relations of confidence 
 that one would rely upon the opinion of the other in sincerity. 
 Fisher v. Bndlong, 10 E. I. 525; Tolman v. Smith, 43 111. App. 562. Or 
 where the party making the representations, makes them as the.opinioA 
 of an expert and the party to whom the representations are made has 
 not equal means of knowledge and relies upon the statement made to 
 him. Kost v. Bender, 25 Mich. 615; McGar v. Williams, 26 Ala. 467. 
 Thus the purchaser of goods, the value of which can only be known to 
 experts, may rely upon the vendor, who is a dealer in such goods, to 
 speak the truth concerning them. Stewart v. Sterns, 63 N. H. 99; Col- 
 lins V. Jackson, 54 Id. 186; Pickard ».-McCormick, il Id. 68; Pike v. Fay, 
 101 Mass. 134; Bradbury v. Haines, 60 N. H. 123; Hanger v. Evlns, 38 
 Ark. 334; Weidner ». Phillips, 39 Hun, 1; Grim v. Byrd, 32 Gratt. 293; 
 Loewer v. Harris, 57 Fed. Rep. 368. The purchaser of a mill, who is 
 ignorant of the business, but relies upon the positive statements of the 
 owner as to its capacity and profitableness, has a remedy for deceit if 
 the assertions are false. Wise v. Fuller, 29 N. J. Eq. 257. See Chase v. 
 Broughton, 93 Mich. 285; 54 N. W. Rep. 44. The same rule applies to 
 sales of patents by dealers therein. Allen v. Hart, 72 111. 104; Peffley v. 
 Noland, 80 Ind. 1 64; McKee w. Eaton, 26 Kan. 226. See Long «. Woodman, 
 58 Me. 49; Holbrook v. Connor, 60 Id. 678; Bauta v. Palmer, 47 HI. .'599; 
 Hunter v. McLaughlin, 43 Ind. 38; Dillman v. Nadfehoffer, 119 111. 567; ' 
 Bishop V. Small, 63 Me. 12. False representation by one selling out his 
 business, whether innocently or fraudulently made, that certain accounts 
 
WHAT IS DECEIT. 359 
 
 to both parties, is different from a statement importing 
 that certain matters of fact are within the particular knowl- 
 edge of the speaker. ^A man cannot hold me to account 
 because he has lost money by following me in an opinion 
 which turned out to be erroneous. In particular cases, 
 however, it may be hard to draw the line between a meie 
 expr>ession of opinion and an assertion of specific fact (k). 
 And a man's intention or purpose at a given time is in itself 
 a matter of fact, and capable ( though the proof be seldom 
 easy) of being foifbd as a fact. " The state of a man's 
 mind is as much a fact as the state of his digestion " (I). 
 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 (m). 
 
 When a prospectus is issued to shareholders in a com- 
 pany or the like to invite subscriptions to a loan, a state- 
 ment of the purposes for which the money is wanted — in 
 
 (fc) Compare Pasleyv. Freenum (1789), 17; cp. per MelliehL. J., Ex parte WMt- 
 
 3 T. R. 51, 1 E. E. 634, with Baycraft v. taker (1875), 10 Ch. at p. 449. Whether in 
 
 Creasy (1801) , 2 East, 92, 6 R. E. 380, where each case an action of deceit would lie is 
 
 Lord Kenyon's dissenting judgment may a merely speculative question, as if 
 
 be more acceptable to the latter-day rescission is impracticable, and if the 
 
 reader than those of the majority. fraudulent buyer is worth suing, the 
 
 (J) Bowen L. J., 29 Ch. Div. 483. obviously better course is to sue on the 
 
 (m) Clough v. L. and N. W. B. Co. contract for the price. See however 
 
 (1871), Ex. Ch. L. K. 7 Ex, 26, 41 L. J. Ex. Williamson v. Allison (1803), 2 East, 446. 
 
 included In the sale of his interest were collectible, entitle the purchaser 
 to damages. Totten v. Burhans, 91 Mich. 495; 51 N. W. 1119. See 
 Crane v. Elder, 48 Kan. 259; 29 Pac. Eep. 151. 
 
 One making false statements relative to the value of shares of stock in 
 an incorporated company which he is selling, or exaggerated statements 
 of the profits and prospects of the company, is not liable to an action for 
 deceit. Ellis v. Andrews, 56 N. Y. 83; 15 Am. Eep. 379; Crook «. Cole, 
 lOInd. 485; Walker u. Mobile, etc. B. Co., 34 Miss. 245; Markel u. Moody, 
 11 Neb. 213; Robinson v. Parks, 76 Md. 118; 34 At. Eep. 411. But "A 
 false and fraudulent representation made with intent to deceive, as to 
 material facts which necessarily affect the value of shares of stock in 
 a corporation, constitutes a cause of action against the person making 
 it, where by means thereof he has induced another to purchase such 
 shares." Schwenk v. Naylor, 102 N. Y. 683. See Gibson v. Cunning- 
 ham, 92 Mo. 131; 5 S. W. Rep. 12; Miller v. Curtis, 13 N. Y. S. Rep. 604. 
 
360 WRONGS OF FRAUD AND MALICE. 
 
 other words, of the borrower's intention as to its applica- 
 tion — is a material statement of fact, and if untrue may be 
 ground for an action of deceit (n^. The same principle 
 would seem to apply to a man's statement of the reasons 
 for his conduct, if intended or calculated to influence the 
 conduct of those with whom he is dealing ( o ) ; 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 authority, a sum lower than that which he is really 
 empowered to deal for. 
 
 Misrepresentations of law. A representation concern- 
 ing a man's private rights, though it may involve matters 
 of law, is as a whole deemed to be a statement of fact. 
 
 (n) Edgington V. Mtzmaurice (18S1),29 opinion given in Vernon v. Keys (1810), 
 Ch. Dlv. 459, 55 L. J. Ch. 650. Ex. Cli. 4 Tannt. 488, can no longer be 
 
 (o) It is snbmitted that the contrary considered law. 
 
 Misrepresentations of law. The American aathorities are in harmony 
 with the text. For example, In Upton v. Tribllcock (91 U. S. 45), where 
 an agent procuring subscriptions lor stock of a corporation, represented ' 
 that the subscribers would be liable for a certain percentage of the stock 
 but the law made them responsible for the whole amount of the shares; , 
 it was held that a subscriber cannot defend on the ground of fraud_ 
 " There was here no error, mistake, or misrepresentation of any fact. 
 The defendant made the ^bscription he intended to make, and received 
 the certificate he had stipulated for; * » * But in law the defendant 
 incurred a larger liability than he anticipated," S. P., Ogilvle v. Knox 
 Ins. Co., 22 How. 380. See Steamboat Belfast v. Boon & Co. 41 Ala. SO; 
 Jagar v, Winslow, 30 Minn. 263; Townsend v. Cowles, 31 Ala. 428; 
 Cowles V. Townsend, 37 Id. 77; Clem v. Newcastle, etc. R. Co., 9 Indr 
 488; Insurance Co, ■». Reed, 33 Ohio St. 283; Lexow o. Julian, 21 Hun, 
 577; Russell v. Branham, 8 Blackf. 277; People v. Supervisors of San 
 Francisco, 27 Cal. 655; Gormeley v. Gym. Assoc, 55 Wis. 350; Rogers v. 
 Place, 29 Ind. 577. 
 
 But the rule does not apply to a case where there is an inseparable 
 connection between false statements of law and fact. As where the 
 holder of a note, the remedy upon which Is barred by the statute, goes 
 to the administrator of one of the two makers, and by representing it to 
 be unpaid, and valid, and in full force in the law, procures a bond for 
 the judgment of one-half thereof. Brown v. Rice's Admr., 26 Gratt. 467. 
 So, a party can obtain redress when he has been induced to execute 
 
WHAT IS DECEIT. 361 
 
 Where officers of a company incorporated by a private Act 
 of Parliament accept a bill in the name of the company, 
 this is a representation that they have pbwer 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 1 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 " 
 (/>). 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 impli- 
 cation, or statements of pure propositions of the law, the 
 rule may perhaps be this, that in dealings between parties 
 who have equal means of ascertaining the law, the one will 
 not be presumed to rely upon a statement of matter of law 
 made by the other (q). It has never been decided whether 
 
 (p) West London ComTnercial Bank v. tor's assertion of subsisting authority to 
 
 Kitson (1884), 13 Q. B. Dlv.360,per Bowen issne debentures). 
 
 L. J. at p. 363, 53 L. J. Q. B. 345. Cp. (g) This appears to be the real ground 
 
 nrbanWs Executors V. Humphreys (1886), of Bmhdall v. Ford (1868), 2 Eq. 7B0, 35 L. 
 
 18 Q. B. Div. 54, 56 L. J. Q. B. 57 (direct- J. Ch. 769. 
 
 bill of exchange, supposiDg it be an ordinary promissory note, from 
 Misrepresentations made by the other party. Ross o. Drlnkard, 35 Ala. 
 434 ; and in this case the following quotation from Townsend v. Cowles, 
 (31 Ala. 428) is approved : " If the defendant was in fact Ignorant of 
 the law, and the other party knowing him to be so and knowing the law, 
 took advantage of such ignorance to mislead him by a false statement of 
 the law, it would constitute a fraud." ■ 
 
 In negotiations between parties holding confidential relations, false 
 statements of the law may be actionable for deceit practiced. Cooke v. 
 Nathan, 16 Barb. 342; State v. HoUoway, 8 Blackf. 43; Sims v. Ferrill, 
 45 Ga. 586; Porter v. Wright, 6 Ind. 183i As where an immigrant went 
 to a certain country and there met an old friend, who professed to know 
 all about the lands and titles thereto, and who sold him lands and 
 asserted that the title was perfect, but which proved incorrect. Held, 
 that the buyer had redress for the dteceit. Moreland v. Atchison, 19 Tex. 
 303. 
 
362 WRONGS OF FKAUD AND MALICE. 
 
 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 case 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 negli- 
 gence, and it must be shown that the duty of giving com- 
 petent advice ha,d been assumed or accepted. 
 
 Falsehood by garbled statements. It remains to be 
 noted that a statement of which every part is literarally true 
 may be false as a whole, if by reason of the omission of 
 material facts it is as a whole dalculated to mislead a person 
 ignorant of those facts into an inference contrary to the 
 truth (r). " A suppression of the truth may amount to a 
 suggestion of falsehood " (s). 
 
 Knowledge or belief of defendant, (b) As to the 
 
 knowledge and belief of the person making the statement. 
 
 He may believe it to be true (i). In that case he incurs 
 
 (r) " There must, in my opiniou, be (s) Stewart v. Wyoming Ranche Co. 
 
 some active misstatement of fact, or at (1888), 128 U. S. 383, 388. 
 all events such a partial and fragment- (t) Collins v. Evans (1844), Ex. Oh. 6 
 
 ary statement of fact as that the vrith- Q. B. 820, 13 L. J. Q. B. 180. Good and 
 
 holding of that which is not stated probable reason as well as good faith was 
 
 makes that which is stated absolutely pleaded and proved, 
 false : " Lord Cairns, L. R. 6 H. L. 403. 
 
 Falsehood by garbled statements. To tell half the truth to con- 
 ceal the other half, amounts to a false statement, and differs in no respect 
 from the case of false representations. Rhode v. (Alley, 27 Tex. 443. 
 
 " Fraud may consist as well in a suppreasio veH as in a suggestio falsi, 
 for in either case, it may operate to the injury of the innocent party." 
 Mitchell V. McDongall, 62 111. 501. See Williams v. Spurr, 24 Mich, .S35; 
 Fish V. Cleland, 33 111. 238 ; Cleland v. Fish, 48 111. 282. 
 
 Knowledge or belief of defendant. The statement of the text is sus- 
 tained by the American authorities. Thus in Hicks v. Stevens (21 111. 
 186; 11 N. Ei Kep. 244), the court said: "To maintain an action at 
 
WHAT IS DECEIT. 363 
 
 no liability, nor is he bound to show that his belief was 
 founded on such grounds as would produce the same belief, 
 in a prudent and competent man (w), except so far as the 
 absence of reasonable cause may tend to 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," although 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 
 misrepresentation and deceit " (x) ; Lord Cran worth pre- 
 ferred to say that such circumstances might be strong 
 evidence, but only evidence, that the statement was not 
 really believed to be true, and any liability of the parties 
 " would be the consequence not of their having stated as 
 true what they had not reasonable ground to believe to be 
 true, but of their having stated as true what they did not 
 believe to be true" (y). Lord Cranworth's opinion has 
 been declared by the House of Lords (a), reversing the 
 
 (u) Taylor v. Asliton (1843), 11 M. & W. (k) Weatem Sank of ScoUamd v. Addie 
 
 401, 12 L. J. Ex. 363, bat the actual de- (1867), L. K. 1 Sc. at p. 162. 
 
 cisioD is not consistent with the doctiine (y) lb. at p. 168. 
 
 of the modern cases on the duty of (z) JOerry v. Peek (1889), 14 App. Ca. 
 
 directors ol companies. See per Lord 337, 58 L. J. Ch. 864. 
 Hersehell, 14 App. Ca. at p. 373. 
 
 law for fraud and deceit arising from false representations of a material ' 
 matter connected with the transaction, it is necessary to show that the 
 party making it knew it to be false, or occupied such a position as that 
 the law would impute to him knowledge of the fact." See McDonald v. 
 Trafton, 15 Me. 225; Case v. Voughton, 11 Wend. 106; King v. Eagle, 10 
 Allen, 648 ; Stimpson v. Helps, 9 Col. 33 ; 10 Pac . Uep. 290 ; Morse v. 
 Dearborn, 109 Mass. 593; Smith v. Eichards, 13 Pet. 26; Cabbot v. Cris 
 tie, 42 Vt. 121 ; Twitchell v. Bridge, 42 Vt. 68 ; Burnett v. Stanton, 2 Ala 
 187; Bankhead v. Alloway, 6 Coldw. 56; Bristol v. Braidwood, 28 Mich 
 ,191; Thompson v. Lee, 31 Ala. 292; Foard v. McComb, 12 Bush, 723 
 Klder v. Allison, 45, Ga. 13; Wilcox v. Iowa Wes. Univ., 32 la. 367; Mor- 
 gan V. Skiddy, 62 N. Y. 319; Davis «. Heard, 44 Miss. 50. 
 
364 WRONGS OF FRAUD AND MALICE. 
 
 judgment of the Court of Appeal (a), to be the correct one. 
 " The ground upon which an alleged belief was founded " 
 is allowed to be " a most important test of its reality " (6) ; 
 but if it can be found as a fact that a belief was really and 
 honestly held, whether on reasonable grounds or not, a 
 statement embodying that belief cannot render its maker 
 liafble in an action for deceit (c). 
 
 I have given reasons elsewhere (d) for thinliing this 
 decision of the House of Lords an unfortunate one. It 
 would be out of place to repeat those reasons here. But it 
 may be pointed out that the reversed opinion of the Court 
 of Appeal coincides with that which has for many years 
 prevailed in the leading American Courts (e), and has 
 lately been thus expressed in Massachusetts : — 
 
 *' It is well settled in this Commonwealth that the charge 
 of fraudulent intent, in an action for deceit, may be main- 
 tained by proof of a statement made, as of the party's own 
 knowledge, which is false, provided the thing stated is not 
 merely a matter of» opinion, estimate, or judgment^ but is 
 susceptible of actual knowledge; and in such ease it is 
 not necessary to make any further proof of an actual intent 
 to deceive. The fraud consists in stating that the party 
 knows the thing to exist, when he does not know it to 
 exist ; and if he does not know it to exist, he must ordi- 
 narily be deemed to know that he does not " ( / ). 
 
 Perhaps it would have been better on principle to hold 
 
 .the duty in these cases to be quasi ex contractu, and evade 
 
 ithe barren controversy about "legal fraud," One who 
 
 makes a statement as of fact to another, intending him to 
 
 act thereon, might well be held to request him to act upon 
 
 it; aad it might also have been held to be an implied 
 
 (o) PecS V. berry (1887), 37 Ch. Div. (d) L. Q. E. v. 410; for a different 
 
 6il, 57 L. J. Oh. 347. View, see Sir William Anson, ib. vl. 72. 
 
 (Jb) Lord Herscliell, U App. Ca. at p. («) Cooley on Torts, 601. The tend- 
 
 375. ency appears as early as 1842, Stone v. , 
 
 (c) Aec. Olasier v. Bolls (1889), 42 Oh. Umnj^, 4 Met. (Mass.) 151,158. 
 Div. 436, 58 L.J. Oh. 820; iowv. ioawerie, (/) Chatham SWnace Co. v. Moffatt 
 
 '91, 3 Oh. 82, 60 L. J. Oh. 594, 0. A. (1888), 147 Mass. 403. 
 
WHAT IS DECEIT. 365 
 
 term or warranty in every such request that the party 
 making it has some reasonable ground for believing what 
 he affirms; not necessarily sufficient ground, but such as 
 might then and there have seemed sufficient to a man of 
 ordinary understanding. This would not have been more 
 artificial than holding, as the Exchequer Chamber was 
 once prepared to hold, that the highest bona fide bidder at 
 an auction, advertised to be without reserve, can sue the 
 auctioneer as on a contract that the sale is really without 
 reserve, or that he has authority to sell without reserve (gr). 
 
 And such a development would have been quite parallel 
 to others which have taken place in the modern history of 
 the law. No one now regards an lexpress warranty on a 
 sale otherwise than as a matter of contract ; yet until the 
 latter part of the eighteenth century the common practice 
 was to declare on such warranties in tort (h). But it seems 
 now too late, at all events in this country, to follow such 
 a line of speculation. 
 
 It has been suggested that it would be highly incon- 
 venient to admit " inquiry into the reasonableness of a 
 belief admitted to be honestly entertained." («). I cannot 
 see that the inquiry is more difficult, or inconvenient than 
 that which constantly takes place in questions of negli- 
 gence, or that it is so difficult as those which are necessary 
 in cases of malicious prosecution, and abuse of privileged 
 communications. 
 
 Kepresentations subsequently discovered to be untrue. 
 
 If, having honestly made a representation, a man discovers 
 that it is not true before the other party has acted' upon it, 
 what is his position? It seems on principle that, as the 
 
 (g) Warlow v. Morrison (1859), 1 E. & was originally an action on the case for 
 
 E. 309, 29 L. J. Q. B. 14. deceit in breaking a promise to the 
 
 (A) Wittiamsonir. AHison (1802), 2 East, promisee's damage: J. B. Ames in Har- 
 
 44B, 451. We need notremlnd the learned yard Law Rev. li. 1, 53. 
 reader that the action of assumpsit itself (») Sir W. Anson, L. Q. K. vi. 74. 
 
366 WRONGS OF FRAUD AND MALICE. 
 
 offer of a contract is deemed to continue till revocation 
 CM* 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 discovers that it is false 
 and, having the means of communicating 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 purpose of setting aside a deed. " The 
 case is not at all varied by the circumstance that the untrue 
 representation, 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 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 from the time of the 
 discovery becomes, in the contemplation of this Court, a 
 fraudulent misrepresentation, even though it was not so 
 originally " (j). We do not know of any authority against 
 this being the true doctrine^of Common law as well as of 
 equity, or as applicable to an action for deceit as to the 
 setting aside of a contract or conveyance. Analogy seems 
 in its favour {k). Since the Judicature Acts, however, it 
 is suffici«nt 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 {I). 
 
 ij) Reynell T. Sprye (1852), 1 D. M. G. equity (20 Ch. DIt. 13), hot this was an 
 
 660, 709, Lord Cranworth : op. Jessel M. extra-judicial dictum; and see per 
 
 B., Redgrave v. Hwrd (1881), 20 Ch. Div. Bowen L. J., 34 Ch. Div. at p. 594, declin- 
 
 12, 13, 51 L. J. Ch. 113. Ing to accept it. 
 
 (4) Compare the doctrine of continu- Q) Traill t. Baring (1864), 4 D. J. S. 
 
 ous taliing In trespass de bonis aaportatis, 318; the difficulty of malting out how 
 
 which is carried out to the graver conse- there was any representation of lact 
 
 quences in the criminal law. Jessel M. in that case as distinguished from a 
 
 E. assumed the common law rule to he promise or condition of a contract la 
 
 in some way narrower than that of not material to the present purpose. 
 
RECKLESS ASSERTION. 367 
 
 Assertions made in reckless Ignorance. Ou the other 
 hand if a man states as fact what he does not believe to be 
 fact, he speaks at his peril ; and this whether he knows the 
 contrary to be true or has no knowledge of the matter at 
 all, for the pretence of having certain information which 
 he has not is itself a deceit. " He takes upon himself to 
 warrant his own belief of the truth of that which he so 
 asserts " (»w). "If persons take upon themselves to 
 make assertions 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 " (n). These dicta, one of an eminent 
 common law judge, the other of an eminent chancellor, are 
 
 (m) Maule J., Evans v. Edmonds (1853), Hannen in Peek t. Derry, 37 Oh. Div. at 
 
 13 0. B. 777, 786, 22 L. J. C. P. 211. p. 581. Even Lord BramweU allows 
 
 (k) Lord Cairns, Beese River SUver Lord Cairns' dictum (U App. Oa. at p. 
 
 Mining Co. v. Smith (1869), L. E. 4 H. L. 351). 
 64, 73, 39 L. J. Ch. 819. See per Sir J. 
 
 Assertions made in reckless Ignorance. Agreeing with the text it 
 was held by the court In McBeth v. Craddock (28 Mo. App. 392), that the 
 gist of the action is the fraudulent representations of the defendant to 
 plaintiff's damage. There must be fraud as distinguished from mere 
 mistake. " It is not, however, always absolutely necessary that an 
 actual falsehood -shpuld be uttered to render a party liable in an action 
 of deceit. If he states material facts as of his knowledge, and not as 
 a mere opinion or general assertion, about a matter of which he has no 
 knowledge whatever, this distinct, wilful statement, in ignorance of the 
 truth, is the same as the statement of a known falsehood, and will con- 
 stitute a scienter. » * * All the authorities are agreed, that deceit may 
 be committed not only with the careful Intention of one who knows what 
 he asserts to be true or false, but also with the reckless intention of one 
 who does not know what he represents to be true or false, but who, for 
 one reason or another is willing that his reckless representations should 
 be believed," Stimson v. Helps, 9 Colo. 3^; 10 Pac. Rep. 291 ; Dunn v. Old- 
 ham, 63 Mo, 181; Caldwell v. Henry, 76 Id. 254; Dulaney v. Eogers, 64 
 Id, 204; Cummings v. Cass, 53 N. J. L. 77; 18 At. Eep. 972; Nauman v. 
 Oberle, 90 Mo. 669; Kenny v. Bailroad, 80 Id. 672; Koontz v. Kaufmann, 
 31 Mo. App. 418 ; Lahay v. City Nat. Bank, 15 Colo. 339 ; 25 Pac. Eep. 204 ; 
 Busterudu. Farrington, 36 Minn. 320; 31 N. W. Eep. 360, citing numerous 
 cases; Miner ». Medbury, 6 Wis. 295; Smith i;.Richards,13 Pet. 26; The 
 Montreal Eiver Lumber Co. v. Mihills, 80 'Wis. 640; 50 N. W. Eep. 607, 
 
368 WRONGS OF FRAUD AND MALICE. 
 
 now both classical; their direct application was to the 
 repudiation of contracts obtained by fraud or misrepresen- 
 tation, but they state a principle which is well understood 
 to include liability in an action for deceit (o). The igno- 
 rance referred to is conscious ignorance, the state of mind 
 of a man who asserts his belief in a fact " when he is con- 
 scious that he knows not whether it be true or false, and 
 when he has therefore no such belief" (p). 
 
 Breach of a special duty to give correct information. 
 
 With regard to transactions in which a more or less strin- 
 gent duty of giving full and correct information (not 
 
 (o) Taylor v. Ashton (1843), 11 M. & (1884), 9 App. Ca. at p. 190, per Lord 
 
 W.iOl.liUJ.Ex.SSSiEdgingtonv.Fitz- Selborne. 
 
 mawice (1885), 29 Oh. Div. 459, 479, 481, 65 (p) Lord Hersohell, Derry v. Feek, 14 
 
 L. J. Oh. 650; cp. Smith w. Chadwich App. Ca. at p. 371. 
 
 Breach ol special duty to give correct mtormation. One who dis- 
 suades another from inquiry and deceives him to his prejudice is respon- 
 sible. " If, in a contract of sale, the vendor knowingly allows the 
 vendee to be deceived as to the thing sold in a material matter, his 
 silence is grossly fraudulent in a moral point of view and may be 
 safely treated accordingly in the law tribunals of the country. Although 
 he is not required to givfe the purchaser all the information he possesses 
 himself, he cannot be permitted to be silent when his silence operates 
 virtually as a fraud. If he fails to disclose an intrinsic circumstance 
 that is vital to the contract, knowing that the other party is acting upon 
 the presumption that no such fact exists, it would seem to be quite as 
 much a fraud as if he had expressly denied it, or asserted the reverse, or 
 used any artifice to conceal it, or to call off the buyer's attention from 
 it. Cojnmon honesty, in such a case, requires a man to speak out." 
 McAdams v. Gates, 24 Mo. 225. " The principle may be generalized, in 
 other words, by saying that, to constitute fraud, in cases of mere silence, 
 there must be the suppression of some material fact which honesty and 
 good faith require to be disclosed under the facts in the particular case. 
 There can usually be no fraud in silence, without intentional conceal- 
 ment, for it may be purely accidental. * * * Whether the duty to 
 disclose exists in a given case, depends upon the fiduciary or other rela- 
 tion of the parties, the nature of the contract, the degree of trust reposed, 
 whether expressly or impliedly, the value or nature of the particular 
 fact, the relative knowledge of the contracting parties, and other circum- 
 stances of the case. Griel ■». Lomax, 89 Ala. 427. See CrOswell o. Jack- 
 
 * 
 
SPECIAL DUTY TO GIVE CORRECT INFORMATION. 369 
 
 merely of abstaining from falsehood or concealment equi- 
 valent to falsehood) is imposed on one of the parties, it 
 may be doubted whether an obligation of this kind annexed 
 
 son, S3 N. J. L. 656; 23 At. Rep. 426; Van Arsdale v. Howard, 5 Ala. 596; 
 Jazan v. Foulmin, 9 Id. 662; 44 Am. Dec. 448; Jordan v. Pickett, 78 Ala. 
 331; Moses V. Eatzenberger, 84 Ala. 95; Hughes v. Robertson, 15 Am. 
 Rep. 104; Nicholson v. Janeway, 16 N. J. Eq. 585; Browne. Montgomery, 
 20 N. Y. 287; Paddock v. Strobridge, 29 Vt. 470; Sides v. Hilleary, 6 
 Harr. & J. 86; MitcheUo. McDougall, 62 111. 498; Trigg v. Read, 5 Humph. 
 629; Smith v. Insurance 'Co., 49 N. Y. 211; Mintz w. Morrison, 17 Tex. 
 372; Belden v. Henriques, 8 Cal. 87; Junkins v. Simpson, 14 Me. 364; 
 Dickinson v. Davis, 2 Leigh, 401 ; Ryan v. Ashton, 42 la. 365 ; Bank v. 
 Albright, 21 Pa. St. 228; Smith v. Osborn, 33 Mich. 410; Booth v. Storrs, 
 75 HI. 438; Bank v. Cooper, 36 Me. 179; Blossom v. Barrett^37 N. Y. 
 434; Burns v. Dockray, 156 Mass. 135; 30 N. E. Rep. 651; Starkweather 
 o. Benjamin, 32 Mich. 306. 
 
 Mere passive concealment, unconnected with active misconduct which 
 misleads the compjainant, is not deception in the legal sense, and will 
 not support an action of deceit. Williams v. Spurr, 24 Mich J 335 ; Laidlow 
 v. Organ, 2 "Wheat. 178 ; Law v. Grant, 37 Wis. 548 ; Hadley v. Importing 
 Co., 13 Ohio St. 502 ; Kintztng v. McElrath, 5 l^a,. St. 467 ; Atwood ■». Chap- 
 man, 68 Me. 38. But when silence, of itself, amounts to an affirmation 
 that a state of things exists which does not, as absolute ia deception may 
 be accomplished as could have resulted from positive assertion. For in- 
 stance, one who sells goods on a credit has a right to suppose his vendee 
 intends, at the time of purchase, to pay for them; and if the vendee on 
 account of hopeless insolvency or other cause, which he concealed, in- 
 tended not to pay for the goods as contracted, the concealment of this 
 intention is a fraud, and the title to the goods will not pass. Oswego 
 Starch Factory o.Lendrum, 57 la. 573; Houghtaling v. Hills, 59 Id. 287; 
 Donaldsono.Farwell, 93U.S. 631; Nichols ». Michael, 23 N. Y. 139; Ship- 
 man v. Seymour, 40 Mich. 274; Bishop v. Small, 63N. C. 12; Wright o. 
 Brown, 67 N. Y. 1; Denoe v. Brandt, 53 Id. 462; Thompson v. Rose, 16 
 Conn. 71; Childs u. Merrill, 63 Vt. 463; 22 At. Rep. 626; Stewart u. Emer- 
 son, 52 N. H. 301; Ayres u. French, 41 Conn. 142; Smith v. Click, 4 
 Humph. 186; Dow v. Sanborn, 3 Allen, 181 ; Kitson v. People (111.), 23 N. 
 E. Rep. 1024; Rose v. Miner, 67 Mich. 410; 35 N. W. Rep. 60; Newell 
 V. Randall, 32 Minn. 171. 
 
 Contra, Bell v. Ellis, 33 Cal. 620, 630 ; Backentos v. Speicher, 31 Pa. St. 
 324; Smith v. Smith, 21 Id. 367; Rodman v. Thalheimer, 76 Id. 232. 
 There must be a preconceived Intention to never pay for the goods. 
 Burrill v. Stevens, 73 Me. 395. Not a mere absence of purpose to pay for 
 them. Catlin v. Warren, 16 111. App. 418; Flower v. Farwell, 18 Id. 264. 
 
 It is a fraud to give a check on a bank where the drawer has no funds 
 
 24 
 
370 WRONGS OF FRAUD AND MALICE. 
 
 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 example, is wilfully or reck- 
 lessly false, it comes within the general description of de- 
 ceit. But there are errors of mere inadvertence which 
 copstantly 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 main- 
 
 or none reasonably expected.. Misur v. Russell, 29 Mich. 229 ; True u. 
 Thomas, 16 Me. 36; Harner v. Fisher, 58 Pa. St. 453. 
 
 In the sale of meats and provisions to consumers there is an implied 
 warranty that they are fit for consumption as such. And a sale of such 
 articles which are unfit for consumption as food, without disclosing 
 that fact, is fraudulent and actionable. Osgood v. Lewis, 2 Harr. & J. 
 495; Van Brocklin v. Fonda, 12 Johns. 468; Devine v. McCormack, 50 
 Barb. 116 ; French v. Vinning, 102 Mass. 132; 3 Am. Rep. 440-; Peckham v. 
 Holman, 11 Pick. 484. 
 
 Under the rule that such sale must be to a consumer has arisen the 
 distinction between a sale by a wholesale dealer and a sale by a retail 
 dealer. It has always been held that wholesale dealers do not impliedly 
 warrant their provisions which they sell to retail dealers. Ryder «. 
 Neitge, 21 Minn. 70; Emerson v. Brigham, 10 Mass. 196; Hart v. Wright, 
 17 Wend. 267; Goldrlch v. Ryan, 3 E. D. Smith, 324; Moses v. Mead, 1 
 Denio, 378; Hyland v. Sherman, 2 E. D. Smith, 234; Rlnschler v. Jeliffe, 
 9 Daly, 469; Hargous v. Stone, 5 N. Y. 73; Best v. Flint, 58 Vt. 543. On 
 the other hand, it is a rule that there is an implied warranty in a sale of 
 provisions by retail dealers to consumers. Moses v. Mead, 1 Denio, 378; 
 Bishop V. Weber, 139 Mass. 411; Hoe v. Sa,nborn, 21 N. Y. 552. A war- 
 ranty is implied whether the vendor is a dealer or not, if he knows the 
 article is purchased for immediate consumption. Hoover v. Peters, 18 
 Mich. 51. See Goad v. Johnson, 6 Heisk, 340. But where the food is 
 sold for other than human use the rule does not apply. Lukens v. 
 Freiund, 27 Kan. 664. It has been held that the sale of animals which 
 the sellers know, but the purchaser does not, have a contagious disease, 
 should be regarded as a fraud when the fact of the disease is not dis- 
 closed. JefErey v. Bigelow, 12 Wend. 518; Grigsby ij. Stapleton (Mo.), 
 7 S. W. Rep. 421 ; Miss., etc. Ry. Co. v. Finley, 38 Kan. 550; 16 Pac. Rep. 
 951; Fultz V. Wycoff, 25 Ind. 321. 
 
 Infecting a pasture by one in possession as a mere licensee, and allow- 
 ing the owner to turn in his cattle without informing him of the fact of 
 the infection, is a fraud. Eaton v. Winnie, 20 Mich. 156. See Kemmish 
 V. Ball, 30 Fed. Rep. 759. But unless the owner knows his cattle are 
 diseased, he is not liable for their infecting cattle on a common range. 
 Bradford ». Floyd, 80 Mo. 207. See Hawks v. Locke, 139 Mass. 205. 
 
deceit: special rules. 371 
 
 tained. Since Derry v. Peek it seems clear that it could 
 not be. As regards these kinds of contracts, therefore — 
 but, it is submitted, these only — the right of action for 
 misrepresentation as a wrong is not co-extensive with the 
 right of rescission. In some cases compensation may be 
 recovered as an exclusive or alternative remedy, but on 
 different grounds, and subject to the special character and 
 terms of the contract. 
 
 Estoppel. Burrewes v. Lock : former supposed rule 
 of equity. In the absence of a positive duty to give cor- 
 rect information or full and correct answers to inquiry, and 
 in the absence of fraud, there is still a lirfaited class of 
 cases in which a man may be held to make good his state- 
 ment on the ground of estoppel. Until quite lately it was 
 supposed to be a distinct rule of equity that a man who 
 has misrepresented, in a matter of business, facts which 
 were specially within his knowledge, cannot be heard to 
 say that at the time of making his statement he forgot 
 those facts. But since Derry v. Peek(q) this is not the 
 rule of English courts. If there is no contract and no 
 breach of specific duty, nothing short of fraud or estoppef 
 will suffice. And we have to remember that estoppel does 
 not give a cause of action but only supplies a kind of 
 artificial evidence (/•). One of the cases hitherto relied on 
 for the supposed rule (s) can be supported on the ground 
 of estoppel, but on that ground only; a later and appar- 
 ently not less considered and authoritative one (t) cannot 
 be supported at all. 
 
 (q) U App. Ca. 337, S8 L. J. Oh. 864. (t) Slim v. Crcmener (J860), 1 D. F. J. 
 
 (r) Low V. Bouverie, '91, 3 Oh. 82, C. A., 518 ; Low v. JSowoerie, above, per Lindley, 
 see per Bovfen L. J., at p. 105. L. J., '91, 3 Ch. at p. 102, 
 
 («) Bwrrowesv. Loc!e(lS05),10Yes.4iIO, 
 see per Lindley L. J., '91, 3 Cb. at p. 101. 
 
 EstoppeL " An acceptance of land concerning which fraudulent 
 representations were made, after knowledge of their falsity, produces 
 neither a waiver nor an estoppel." Matlock v. Reppy, 47 Ark. 148; 
 US. W. Kep. 546. , 
 
372 WEONGS OF FRAUD AND MALICE. 
 
 In short the decision of the House of Lords in Dewy v. 
 Peck is that even the grossest carelessness in stating 
 material facts is not equivalent to fraud ; and the substance 
 of the decision is not altered by the results turning out to 
 be of wider scope, and to have more effect on other doc- 
 trines supposed to be settled, than at the time was appre- 
 hended by a tribunal of whose acting members not one had 
 any working acquaintance with courts of equity. 
 
 Intention of the statement, (c) It is not a necessary 
 condition of liability that the misrepresentation complained 
 of should have beep made directly to the plaintiff, or that 
 the defendant should have intended or desired any harm to 
 come to him. It |s enough that the representation was in- 
 tended for him to act upon, and that he has acted in the 
 manner 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 as- 
 sertion is found untrue ; and this will generally be his better 
 remedy, as he need not then allege or prove anything about 
 the defendant's knowledge ; but he may none the less treat 
 the warranty, if it be fraudulent, as a substantive ground 
 of action intort. If the buyer wants the gun, not for his 
 own use, but for the use of a son to whom he means to give 
 it, and the seller knows this, the seller's assertion is a rep- 
 resentation on which he intends or expects the buyer's son 
 to act. And if the seller has wilfully or recklessly asserted 
 that which is false, and the gun, being in fact of inferior 
 and unsafe manufacture, bursts in the hands of the pur- 
 chaser's son and wounds him, the seller 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 (m). He 
 
 (») LangrUige y. Levy (1837), 2 M. & W. 519; affirmecl (very briefly), in Ex. Ch. i M 
 & W. 338. 
 
DECEIT BY PUBLIC EEPKESENTATIONS. 373 
 
 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 
 falsehoo^, and he must abide the risk. We have to foUdw 
 the authorities yet farther. 
 
 Representations to a class of persons : PoUiill v. 
 "Walter. A statement circulated or published in order to 
 be acted on by a ceftain 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 office. 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, assum- 
 ing 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 bene- 
 fit of all parties, and expected that the acceptance would 
 be ratified (a;). 
 
 Denton v. G. N. K. Co. Again the current time-table 
 of a railway company is a representation to, persons mean- 
 ing 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 
 representation, and (belief in its truth on the part of the 
 
 (X) PolhiUv. Walter (18S2),S B. &Ad. Implied warranty was then unknown. 
 114. The more recent doctrine of [Llndsey v. Llndsey, 31 Miss. 432.] 
 
374 ' WRONGS OF FKAUD AND MALICE. 
 
 company's servants being out of the question) a person 
 who by relying on it has missed an appointment and 
 incurred loss may have an action for deceit against the 
 company (y). Here there is no fraudulent intention. 
 The default is really a negligent omission ; a pa^e of the 
 tables should h,ave 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. 
 
 Peek V. Gurney. Again the prospectus of a new com- 
 pany, so far forth as it alleges matters of fact concerning 
 the position and prospects of the undertaking, is a repre- 
 sentation addressed to all persons who may apply for shares 
 in the company ; but it is not deemed to be addressed to 
 persons who after the establishment of the company become 
 purchasers of shares at one or more removes from the 
 original holders («), for the office of the prospectus is 
 exhausted when once the shares are allotted. As regards 
 those to whom it is addressed it matters not whether the 
 promoters wilfully use misleading language or not, or do 
 or do not expect that the undertaking will ultimately be 
 successful. The material question is, " Was there or was 
 there not misrepresentation in point of fact? " (a). Inno- 
 cent or benevolent motives do not justify an unlawful 
 intention in law, though they are too often allowed to do so 
 . iu popular morality. 
 
 (y) So held unanimously in DenioK V. App. Ca. 337, 58 L. J. Ch. 864) and now 
 
 O. iV. H. Co. (1856), 5 H. & B. 860, 25 L. J. 'JjOVi t. Bomerie, '91, 3 Ch. 82, 60 L. J. Oh. 
 
 Q. B. 129. Lord Campbell 0. J., and 594, seems to point in the same direo- 
 
 Wightman J., held (,dubU. (Jrompton J.) tion. 
 
 that there was also a cause of action In (») Peek v. Gurney (1873), L. B. 6 H. L. 
 
 contract. The difficulty often felt about 377, 400, 411, 43 L. J. Ch. 10. 
 
 maintaining an action for deceit against (a) Lord Cairns, L. R. 6 H. L. at p'. 
 
 a corporation does not seem to have oc- 409. Cp. per Lord BlacUburn, Smith v. 
 
 onrred to any member of the Court. It Chadwick, 9 App. Ca. at p. 201; Lord 
 
 is of course open to argument that this Herschell, Derry v. Peels, 14 App. Ca. at 
 
 case is overruled by Derry v. Peek, 14 pp. 366, 371. 
 
deceit: reliance on hepresentation. 375 
 
 Reliance on the representation, (d) As to the plain- 
 tiff's action on tlie faith of the defendant's representation. 
 
 A. by words or acts represents to B. that a certain state 
 of things exists, in order to induce B. to act in a certain 
 
 Reliance on representation. To sustain an action for deceit it must 
 be proved by evidence that the plaintiff in doing that vyhich resulted to 
 his injury acted upon the false representation of the defendant and not 
 independently, to his injury. It is essential that such misrepresentation 
 be the promoting and proximate cause of the injury, otherwise the 
 deception has not accomplished its purpose and an action will not lie. 
 Addington v. Allen, 11 Wend. 374; PIshback v. Miller, 15 Nev. 428; 
 Lebby v. Ahrens, 26 S. C. 275; 2 S. E. Rep. '387; Winter v. Bandel, 30 
 Ark. 362; Black v. Black, 110 N. C. 399; 14 S. E. Eep. 971; Lewis v. 
 JeweU, 151 Mass. 346; 24 N. E. Eep. 51; Ming u. Woolfolk, 116 U. S. 599; 
 Ledbetter v. Davis, 121 Ind. 119; Eoseman v. Canovan, 43 Cal. 110; 
 Webster v. Bailey, 31 Mich. 36; Parmlee v. Adolph, 28 Ohio St. 10; 
 Wakemani!. Dalley, 51 N. Y. 27; Eish v. Von Lillenthal, 34 Wis. 250; 
 Endsleyu. Johns, 120 111. 469; 12 N. E. Eep. 247; Fowlers. McCann 
 (Wis.), 56 N. W. Eep. 1085; Fulton v. Hood, 34 Pa. St. 365; Pratt v. 
 Philbrook, 41 Me. 132. 
 
 Where a purchaser decides not to rely upon the statements of the ven- 
 dor, but seeks independent means of investigation of his own, there is 
 no deception, though he fails to discover an important fact, provided 
 the vendor interposes no obstacles to a full and free investigation, and 
 does nothing to mislead the purchaser. Halls v. Thompson, 1 Smed. & 
 M. 443. So, if the complainant did not rely upon the representations of 
 the defendant because he did not believe them, or because he chose to act 
 on his own judgement, he has no ground for relief. Nye v. Merriman, 35 
 Vt. 438; Hagee ». Grossman, 31 Ind. 223; JProctor u. McCoid, 60 la. 153; 
 Doran v. Eaton, 40 Minn. 35. ( See Alden ». Wright, 47 Minn. 225;" 49 N.W. 
 Eep. 767 ; Nye v . Merriam, 35 Vt. 438 ; Veerol v. Veerol, 63 N. Y. 46 ; Fulton 
 V. McDaniel, 23 Ga. 354 ; Byard v. Holmes, 34 N. J. L. 296 ; Bedding v. 
 Goodwin, 44 Minn. 355; 46 N. W. Eep. 563; Hanson v. Edgerly, 29 N. 
 H. 343; Abbey v. Dewey, 25 Fa. St. 413; Fuller v. Hodgden, 26 Me. 243 ; 
 Boyce v. Watson, 20 Ga-. 517; Garrow v. Davis, 15 How. 272; Ely u. 
 Stewart, 2 Md. 408; Ming v. Woolfolk, 116 U. S. 599; Eunger v. Brown, 
 29 Neb. 116; 37 N. W. Eep. 660; Anderson v. Burnett, 6 Miss. 165; Tay- 
 lor V. Guest, 58 N. Y. 266; Eutherford v. Williams, 42 Mo. 24; Shackel- 
 ford V. Hendley, 1 A. K. Marsh. 496; Duncan v. Hogue, 24 Miss. 671; 
 Slidel V. Eightor, 3 La. An. 199; Central Bank w. Copeland, 18 Md. 305; 
 Bowman v. Corithens, 40 Ind. 90. 
 
 The false statement must relate and be material to the subject of the 
 transaction and be a "substantial inducement" thereto to constitute a 
 deceit; but it is not necessary that they be the sole inducements that led 
 
376 WRONGS OF FRAUD AND MALICE. 
 
 way. The simplest case is where B., relying wholly on 
 A.'s statement, and having no other source of information, 
 acts in the manner contenvplated. This needs no further 
 comment. The case of B. disbelieving and rejecting A.'s 
 assertion is equally simple. 
 
 to the close of the transaction. Ingrabam v. Jordan, 65 Ga. 856 ; Selma 
 V. Railroad Co., 61 Miss. 829; Hill v. Carley, 8 Hun, 636; Hull v. Fields, 
 76 Va. 594; Winter v. Bandell, 30 Ark. 362; Safford v. Grant, 120 Mass. 
 20; James v. Hodsden, 47 Vt. 127; Mathews v. Bliss, 22 Pick. 48; Whit- 
 ing V. Hill, 23 Mich. 399, 405. 
 
 " The maxim caveat emptor, is a rule of the common laV, applicable to 
 contracts of purchase of both real and personal property, and is adhered 
 to, both in courts of law and courts of eqnity, where there is no cases of 
 positive fraud a different rule applies. The law presumes that men will 
 ac% honestly in their business transactions, and the maxim of vigilantibus, 
 non dormientibus jura subvenient only requires persons to use reasonable 
 diligence to guard against fraud ; such diligence as prudent men gener- 
 ally exercise under similar circumstances. * * * But the rules of law 
 do not require a prudent man to deal with every one as rascal, and demand 
 covenants to guard against the falsehood of every representation, which 
 may be made as to facts which constitute material inducements to the 
 contract. There must be a reasonable reliance upon the integrity of 
 men, or the transactions of business, trade and commerce could not be 
 conducted with that facility and confidence which are essential to suc- 
 cessful enterprise and the advancement of individual and national wealth 
 and prosperity. * * * if representations are made by one party to a 
 trade which may be reasonably relied upon by the other parly, and they 
 constitute a material inducement to the contract — and such representa- 
 tions are' false within the knowledge of th^ party making them — and 
 they cause loss and damage to the party relying on them, and he has acted 
 with ordinary prudence In the matter, he is entitled to relief in any court 
 of justice." Walsh ». Hall, 66 N. C. 237. See Oswald b. McGehee, 28 
 Miss. 340; Fields v. Rouse, 3 Jones L. 72. 
 
 " It is as much an actionable fraud wilfully to deceive a credulous 
 person with an improbable falsehood as it is to deceive a cautious, saga- 
 cious person with a plausible one. The law draws no line between the 
 two falsehoods." BarndtB. Frederick, 78 Wis. 1; 47 N. W. Rep. 9. So, it 
 has been said: " The law takes note of the ignorant, the- credulous, and 
 the unwary, and will make their ignorance and want of canning their 
 innocence, and protect them." Pearl v. Walter, 80 Mich. 322, citing 
 McNamara v. Gargett, 68 Mich. 454; Davis v. Seeley, 71 Id. 209; followed 
 in Leland v. (3oodfellow, 84 Mich. 357; 47 N. W. Rep. 691. See Ingalls 
 V. Miller, 121 Ind. 188; 22 N. E. Rep. 995. 
 
•beceit: knowledge ok inquiry. 377 
 
 Another case is that A.'s representatioQ is never com- 
 municated to B. Here, though A. may have intended to 
 deceive B., it is plain that he has not deceived him ; and 
 an unsuccessful attempt to deceive, however unrighteous it 
 may be, does not cause damage, and is not an actionable 
 wrong. A fraudulent seller of defective goods who 
 patches up a flaw for the purpose of deceiving an inspec- 
 tion cannot be said to have thereby deceived a buyer who 
 omits to make any inspection at all. We should say this 
 was an obvious proposition, if it had not been judicially 
 doubted (6). The buyer may be protected'^by a condition 
 or warranty, express or implied by law from the nature of 
 the particular transaction; but he cannot complain of a 
 merely potential fraud directed against precautions 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. 
 
 Means of knowledge immaterial witliout actual inde- 
 pendent inquiry. Yet another case is that the plaintiff has 
 at hand the means of testing the defendant's statement, 
 
 (b) Horafall v. Thomas (1862), 1 H. & bum 0. J., L. R. 6 Q. B. at p. 605. The 
 C. 90, 31 L. J. Ex. 322, a case of contract, case was a peculiar one, but could not 
 so tbat a fortiori an action foi deceit baye been otherwlee decided, 
 would not lie; dissented from by Cock- 
 Means of :knowledse izamaterial without actual Inquiry. " The 
 proposition has now become very widely accepted at lawvas well as in 
 equity, at least as a general doctrine,, tbat a man may act upon a posi- 
 tive representation of fact notwithstanding the fact that the means of 
 knowledge were specially open to him. " * * If the representations 
 were of a character to induce action, and did induce it that is enough." 
 Cottrell V. Crum, 100 Mo. 397; 13 S. W. Bep. 753. In the New York 
 case of Mead v. Bunn (32 N. Y. 279), the court speaking through Porter 
 J. went so far as to say: " every contracting party has an absolute right 
 to rely on the express statement of an existing fact, the truth of which Is 
 known to the opposite party, and unknown to him, as the basis of a 
 mutual engagement; and he Is under no obligation to investigate and 
 verify statements, to the truth of which the other party to the contract, 
 with full means of knowledge, has deliberately pledged his faith." See 
 
378 WKONGS OF FRAUD AND MALICE. • 
 
 indicated by the defendant himself, or otherwise within the 
 plaintiff '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 inquiry. But the 
 ground of this kind of redress is not the merit of the 
 plaintiff, but the demerit of the defendant: and it is now 
 settled law that one who chooses to make positive assertions 
 without warrant shall not excuse himself by saying that the 
 other party need not have relied upon them. He must 
 show that his representation was not in fact relied upon. 
 In the same spirit it is now understood (as we shall see in 
 due place) that the defence of contributory negligence does 
 not mean that the plaintiff is to be punished for his wiant 
 of caution, but that an act or default of his own, and not 
 the negligence of the defendant, was the proximate cause 
 
 Eaton V. Winnie, 20 Mlcli. 156; Dunn v. Wtiite, 63 Mo. 181; Duff v. Will- 
 iams, 85 Pa. St. 490; Litchfield v. Hutchinson, 117 Mass. 195; Bird v. 
 Kleiner, 41 Wis. 134; Catzhausen v. Simon, 47 Wis. 103; Wheelden v. 
 Lowell, 50 Me. 499; Lockridge v. Foster, 5 111. 56; Parham«. Randolph, 
 4 How. (Miss.) 435; Wharf v. Roberts, 88 111. 426; Taylor v. Llth, 26 
 Ohio St. 428; Pennsylvania R. Co. v. Ogier, 35 Pa. St. 72; Ernst v. Hud- 
 son RiverR. Co., 35 N. Y. 28; Gordon v. Grand St. R. Co., 40 Barb. 550; 
 Olson V. Orton, 28 Minn. 36; Caldwell v. Henry, 76 Mo. 254; Stewart v. 
 Stearns, 63 N. H. 99 ; McGibbons v. Wilder, 78 la. 531 . 
 
 " In an action for fraudulent misrepresentations in the sale to plaintiff 
 of certain shares of corporate stock) a written agreement of the parties 
 was put In evidence, reciting that 50 per cent, of the par value had been 
 paid in cash, and 25 per cent, by a declaration of dividend out of net 
 profits, and setting out the illegal financial condition of the company, 
 and providing that the trade was to be conditional upon the representa- 
 tions as to the condition of the business and stock of said company, 
 which might be verified by an expert book-keeper of plaintiff's selection 
 and at his expense. Seld, That plaintiff's right to recover upon such 
 representations, as fraudulent, is not concluded by his failure to waive 
 himself of the right to make such examination through an expert." 
 
 Blacknall v. Rowland, 108 N. C. 554; 13 S. E. Rep. 191. See Taylor v. 
 Saurman, 110 Pa. St. 3; 1 At. Rep. 40. 
 
DECEIT : KNOWLEDGE OR INQUIRY. 379 
 
 of his damage. If the seller of a business fraudulently 
 over-states the amount of the business and returns, 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 con- 
 cluded (c). 
 
 Perfunctory inquiry will not do. And the same princi- 
 ple applies as long as the party substantially puts his trust 
 in the representation tnade to him, even if he does use some 
 observation of his own. 
 
 A cursory view of a house asserted by the vendor to be 
 in good repair does not preclude the purchaser from com- 
 plaining of substantial defects in repair which he after- 
 wards discovers.. " The purchaser is induced to make a 
 less accurate examination by the representation, which he 
 had a right to believe " (d). The buyer of a business is 
 not deprived of redress for misrepresentation of the amount 
 of profits, because he has seen or held in his hand a bundle 
 of papers alleged to contain the entries showing those 
 profits (e). An original shareholder in a company who was 
 induced to apply for his shares by exaggera,ted and untrue 
 statements in the prospectus is not less entitled to relief 
 because facts negativing those statements are disclosed by 
 documents referred to in the prospectus, which he might 
 have seen by applying at the company's office (/). 
 
 In short, nothing will excuse a culpable misrepresenta- 
 tion short of proof that it was not relied on, either because 
 the other party knew the truth, or because he relied wholly 
 
 (c) Dobell V. Stevens ^1825), 3 B. & C. (/) Central S. Co. of Tenez'mla, v. 
 623. KUeh (1S67), L. B. 2 H. L. 99, 120, 36 L. J. 
 
 (d) Dyer v. Ha/rgrave (1805) , 10 Ves. at Ch. 849, per Lord Chelmsford. A case of 
 p. 510 (cross suits for specific perform- this kind alone would not prove the rule 
 ance and compensation). as a general one, promoters of a com- 
 
 (e) Redgrave v. Hurd (1881), 20 Ch. pany being under a special duty of full 
 Div. 1, 51 L. J. Ch. 113 (action for specific disclosure. 
 
 performance, counter-claim for rescis- 
 sion and damages). 
 
380 WRONGS OF FKAUD AND MALICE. 
 
 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 (g). He may prove any of 
 these things if he can. It is not an absolute proposition of 
 law that one who, having a certain allegation before him, 
 acts as belief in that allegation would naturally induce a 
 man to act, is deemed to have acted on the faith of that 
 allegation. It is an inference of fact, and may be excluded 
 by contrary proof. But the inference is often irre- 
 sistible (h). 
 
 Ambiguous statements. Difficulties may arise on the 
 construction of the statement alleged to be deceitful. Of 
 course a man is responsible for the obvious meaning of 
 his assertions ; but where the meaning is obscure, it is for 
 the party complaining to show that he relied upon the 
 words in a sense in which they were false and misleading, 
 and of which they were fairly capable {i). 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. Evea judicial minds 
 will differ widely upon such points, after full discussion and 
 consideration of the various constructions proposed (A). 
 
 Liord Tenterden's Act. (e) It has already been 
 observed in general that a false representation may at the 
 same time be a promise or term of a contract. In particu- 
 lar it may be such as to amount to, or to be in the nature 
 
 (ff) See eepeolally per Jessel M. E., 20 J., and C. A. 20 Oh. Div. 27), Fry J. and 
 
 Oh. Div. 21. Lord Bramwell decidedly adopted one 
 
 (ft) See per Lord Blackburn, Smith v. construction of a particular statement; 
 
 Chadwick, 9 App. Oa. at p. 196. Llndley L. J. the same, thongh less de - 
 
 (j) Smith T. Chadwich (1881), 9 App. cidedly, and Cotton L. J. another, while 
 
 Oa. 187, 53 L. J. Oh. 873, especially Lord Jessel M. E., Lord Selbome, Lord Blaok- 
 
 Blaokburn's opinion. burn, and Lord Watson thought it am- 
 
 (*:) In the case lastoited (1881-2) (Fry biguous. 
 
FALSE REPUESENTATION. 381 
 
 of, a guaranty. Now by the Statute of Frauds a guaranty 
 cannot be sued on as a promise unless it is in writing and 
 signed by the party to be charged or his agent. If an oral 
 guaranty could be sued on in tort by treating it as a fraud- 
 ulent 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 (?), 
 much less were they foreseen at the time. It was pointed 
 out, after the modern action for deceit was established, 
 that the jurisdiction ^hus created was of dangerous lati- 
 tude (m); and, at a time when the parties could not be 
 witnesses in a court of common law, the objection had 
 much force. By Lord Tenterden's Act, as it is commonly 
 called (n), the following provision was made: — 
 
 "No action shall be brought whereby to charge any 
 person upon or by reason of any representation or assur- 
 er See the dissenting judgment of nell (1801), 6 Ves. 174, 182, 186, 5 B. E. 245, 
 Grose J. in Pasley v. Freeman (1789), 3 251, 255. 
 T. R. 51, 1 E. E. 634, 636, and 2 Sm. L. C. (») 9 Geo. IV. o. 14, s. 6. 
 
 (m) By Lord Eldoa in Evans v. Bicle- 
 
 Becsommeiidatioii ol credit. " The doctrine is well established that in 
 order to subject a defendant to damages for false recommendation as to 
 the credit of a third person, the representation must not only be false, 
 but fraudulent with intent to deceive ; and, where a petition does not allege 
 such intent to deceive and contains only a general allegation of fraud, it 
 fails to state acause of action for deceit." Bedpath v. Lawrence, 42 Mo. 
 App. 101. " Where goods are sold upon credit to A., upon the fraudu- 
 lent representation of B., and loss ensues, B. is liable in an action on 
 the case, although other inducements besides the representations made 
 may have operated in the giving of the credit; it is enough if the vendor 
 be moved by such representations, so that without it the goods would not 
 have been parted with." Addington v. Allen, 11 Wend. 376. See Hess 
 V. Culver, 77 Mich. 598; 43 N. W. Kep. 994; Daniel v. Robinson, 33 N. W. 
 Bep. 497. " Where a third person knowingly made a false statement to 
 one, with intent to deceive and mislead him, and induce him to loan 
 money to another, and the person to whom the statements were made 
 had reasonable ground to rely upon them and did rely upon them, and 
 was deceived by them into making the loan, he is entitled to recover 
 from the person making the false statements such loss as he may have 
 sustained by reason of theii: having been made." Bank of North 
 America v. York, 87 Mo. 369. 
 
382 WRONGS OF FRAUD AND MALICE. 
 
 ance made or given concernibg 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 (o), unless such repre- 
 sentation or assurance be made in writing, signed by the 
 party to be charged therewith." 
 
 This is something more stringent than the Statute of 
 Frauds, for nothing is said, as in that statute, about the 
 signature of a person " thereunto lawfully authorized," and 
 it has been decided that signature by an agent will not do 
 (p). Some doubt exists whether the word " ability " does 
 or does not extend the enactment to cases where the repre- 
 sentation is not in the nature of a guaranty at all, but an 
 affirmation aboiit some specific circumstance in a person's 
 affairs. The better opinion seems to be that only state- 
 ments really going to an assurance of personal credit are 
 within the statute (q). Such a statement is not the less 
 within it, however, because it includes the allegation of a 
 specific collateral circumstance as a reason (r). 
 
 Quaere as to the law under tbe Judicature Acts. A 
 
 more serious doubt is whether the enactment be now prac- 
 tically operative in England, The word "action" of 
 course did not include a suit in equity at the 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 undoubted its jurisdiction, act on 
 the plaintiff's oath against the defendant's, without the 
 
 (o) Sic. It is believed that the word (p) Suii/t v. Jeiesbury (1874), Ex. Oh. 
 
 " credit", was accidentally transposed, L. K. 9 Q. B. 301, 43 L. J. q;b. 66. 
 
 so that the true reading would be (g) Parke and Alderson BB. In Lyde 
 
 " obtain money or goods npon credit: " t. Barnard (1836), note (o) : contra Lord 
 
 see Lyde v. Barnard (1836), 1 M. & W. Abinger 0. B. and GnrneyB. And see 
 
 101, per Parke B. Other conjectural Bishop v. BallOs Consolidated Co. (1890), 
 
 emendations are suggested in his judg- 25 Q. B. Div. 612, 59 L. J. Q. B. 566. 
 
 ment and that of Lord Abinger. (r) Swann v. PhiUips (1S38), 8 A. & E. 
 
 457. 
 
FALSE GUAEANTIES. 383 
 
 corroboration of documents or other material facts ; and it 
 would seem that in every ease of this kind where the Court 
 of Chancery had concurrent jurisdiction with the courts of 
 common law (and it is diflScult to assign any where it had 
 not), Lord Tenterden's Act is now superseded by this rule 
 of evidence or judicial prudence. 
 
 Misrepresentations made by agents. There still remain 
 the questions which arise in the case of a false representa- 
 tion made by an agent on account of his principal) Bear- 
 
 Misrepresentations made by ag'ents. In America the lule is estab- 
 lished that a principal is liable civilly for the neglect, fraud, deceit^ or 
 other wrongful act of his general agent, although personally innocent of 
 the fraud. Wright v. Calhoun^ 19 Tex. 420 ; Eobinsdn y. Walton, 58 Mo. 
 380; Kennedy v. McKay, 14 Vroora (N. J.), 288; Bank v. Campbell, 4 
 Humph. 394. Johnson ». Barber, 5 Gilm. 425; Morton v. Scull, 23 Ark. 
 289; Jewett v. Carter, 132 Mass. 335; Fitzsimmons v. Joslin, 21 Vt. 129; 
 Thompson v. Brush Co., 31 Fed. Rep. 535 ; Witherwax v. Riddle, 121 111. 
 140; 13 N. E. Rep. 546; Upton v. Tribilcock, 91 U. S. 45; Chester w. 
 Dlckerson, 62 Barb. 349; Bankt). Gray, 14 N. H. 331; The Mad. and Ind. 
 R. Co. V. The Norwich Sav. Society, 24 Md. 457; DeVosse u. City of 
 Richmond, 18 Gratt. 338; Reed v. Peterson, 91 III. 288; Busch i). Wilcox, 
 82 Mich. 315; 46 N. W. Rep. 940. 
 
 But this rule does not apply to the acts of a special agent where such 
 agent did not have and was not held out as having full authority to do 
 that which he undertook to do, and where one dealing with him was in- 
 formed or should have informed himself, of the limitations of his 
 authority. See Haskell v. Starbird, 152 Mass. 112; Locke c. Stearns, 1 
 Mete. 560; White v. Sawyer, 16 Gray, 586; 589. A specia? agent's acts 
 bind his principal, unless the manner of doing the particular business 
 be specified. If he makes false representations on the subject of dealing 
 to influence the other party to close the transaction, the principal Is 
 responsible for the deceit. Sanford v. Handy, 23 Wend. 260; Pntman v. 
 Sullivan, 4 Mass. 46. 
 
 "Although the representation might be false In fact, if innocently 
 made by the agent, believing in the truth of what he asserted, it would 
 afford no ground of action. To constitute the fraud and deceit, the 
 representation must be false and knowingly made." Lamm v. Port, 
 Deposit Homestead Assoc, etc., 49 Md. 240. But " the existence of 
 knowledge in the agent, however acquired, when acting for the principal 
 is knowledge to the principal and the fraudulent representation or con- 
 cealment of material facts by the agent when engaged in the principal 
 
384 WRONGS OF FRAUD AND MALICE. 
 
 ing in mind that reckless ignorance is equivalent to guilty 
 knowledge, we may state the alternatives to be considered 
 as follows : — 
 
 The principal knows the representation to be false 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. 
 
 The principal knows, thecontrary of the representation 
 
 constructively throngh the agent." Tagg v. The Tenn. Nat. Bank, 65 
 Tenn. 479. 
 
 It is not only a rule of law that the acts of an agent within the scope 
 of his authority bind the principal, but it is also true that where one 
 ma^es an unauthorized false representation for another and that the 
 other knowingly accepts the benefit thereof he becomes liable therefor.. 
 " No one can hold an interest obtained thtough the fraud of another, any 
 more than if the fraud were committed by himself. By receiving and 
 retaining the benefit he incurs the obligation." Bowers v. Johnson, 10 
 Sneed & M. 173. See Mundorft v. Wickersham, 63 Pa. St. 87; Lane v. 
 Black, 21 W. Va. 617; Nat. Ins. Co. v. Minch, 53 N. T. 144; Smith v. 
 Tracy, 36 N. T. 79. " If a vendor of land knows when he effects the 
 sale, that the purchaser has been induced to buy by the false and 
 fraudulent representations of a third person, he Is responsible 
 for the fraud, though such third person was not Ms agent." 
 Law V. Grant, 37 Wis. 448. There are times when an agent may become 
 personally liable in an action of deceit, as where he assumes to act in 
 respect to a transaction over which he has no authority and with false 
 representations mislead a person to his or her damages. Johnson v. 
 Smith, 21 Conn. 627; White v. Madison, 26 N. Y. 117; Molse v. Dear- 
 bom, 109 Mass. 693. But see Newman v. Sylvester, 42 Ihd. 112. So for 
 an independent fraud by an agent, not within the scope of his agency, 
 the principal Is not responsible. Fellows v. Oneida, 36 Barb. 656; Kelly 
 V. Insurance Co., 3 Wis. 254; Kennedy v. Parke, 2 C. E. Green, 415. 
 
 The fraud of an authorized agent will invalidate a contract, entered 
 into by him on behalf of his principal, though in perpetrating the fraud, 
 the agent acted without the knowledge or consent of the principal, 
 Henderson v. Railroad Co., 17 Tex. 575. See American Insurance Co. 
 ». Kuhlman, 6 Mo. Ajjp. 523; Ogilvie v. Insurance Co., 22 How. 380; 
 Veagie v. Williams, 8 Id. 134. 
 
 One partner is liable for the deceit of another partner in the firm busi- 
 ness. Lark v. Steams, 1 Mete. 560; Durant v. Rogers, 87 111. 508; 
 Linton v. Harley, 14 Gray, 191 ; Castle v. Ballard, 23 How. 172. See, ante, 
 pp. 84, 103, 112. 
 
FALSE GUAEANTIES. 385 
 
 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 employ- 
 ment and for the principal's purposes, and, according to 
 the general rule of liability for the acts and defaults of an 
 agent, the principal is liable (s). 
 
 If the agent does believe the representation to be true, 
 there is a difficulty ; for the agent has not done any wrong 
 and the principal has not authorized any. Yet the other 
 party's damage is the same. That he may rescind the 
 contract, if .he has been misled into a contract, may now 
 be taken as settled law (<)^ But what if there was not 
 any contract, or rescission has become impossible? Has 
 he a distinct ground of action, and if so, how? Shall we 
 say that the agent had apparent authority to pledge the 
 belief of his principal, and therefore the principalis 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 they 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 mislead 
 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 fraudulent pur- 
 poscj in the hope that the agent will, by a statement im- 
 perfect 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 ordinslry consequences (w). If the same thing 
 
 (g) Parke B., 6 M. & W. 373. rectlon to tell the jnry wtthont qualifloa- 
 
 («) See Principles of Contract, 552., tion "that the representation made by 
 
 In Comfoot v. Fawke, 6 M. & W. 358, it is the agent mnst have the same effect as 
 
 difficult to suppose that as a matter of if made by the plaintiff himself;" the 
 
 fact the agent's assertion can have been defendant's plea averring fraud vf ithont 
 
 otherwise than reckless; what was qualification. 
 
 actually decided was that it was di- («) Admitted by all the Barons in 
 
 26 
 
386 WKONGS OF FRAUD AND MALICE. 
 
 happens by inadvertence, it seems inconvenient to treat 
 sucii inadvertence as venial, or exempt it from the like con- 
 sequences. We think, therefore, that an action lies against 
 the principal; whether properly to be described, under 
 common law forms of pleading, as an action for deceit, or 
 \as an analogous but special action on the case, there is no 
 occasion to consider (x). 
 
 On the other hand an honest and prudent agent may say, 
 " To the best of my own belief such and such is the case," 
 adding in express terms or by other clear indication — " but 
 I have no information from my principal." Here there is 
 no ground for complaint, the other party being fairly put 
 on inquiry. 
 
 liiability of corporations herein. If the principal does 
 not expressly authorize the representation, and does not 
 know the contrary to be true, but the agent does, the rep- 
 resentation being in a matter within the general scope of 
 his authority, the principal is liable as he would be for any 
 other wrongful act of an agent about his business. And as 
 this liability is not founded on any personal default in the 
 principal, it equally holds when the principal is a corpora- 
 
 Comfoot V. Fawlce; Parke, 6 M. & W. at (a) The decision of tlie Honse of 
 
 pp. 362, 374, Eolfe at p. 370, Alderson at I/ordB in Derry\. Peek (1889), 14 App. Oa. 
 
 p. 372. The broader view of Lord Abin- 337, 58 L. J. Ch. 864, tends however to 
 
 ger's dissenting judgment of course in- make this opinion less probable, 
 clndes this. 
 
 Liability of corporations. " Natural persons are liable for the wrong- 
 ful acts and neglect of their servants or agents, done in the course of 
 their employment, and private corporations upon the same grounds of 
 public policy are amenable to the same extent." Lamm v. Port, Deposit 
 Homestead Ass'n, 49 Md. 241. In England the rule is that if the person 
 has been induced to purchase shares of a corporation by the misrepre- 
 sentations of its Directors and is damaged thereby he must bring an 
 action of deceit against such directors individually; while in the United 
 States It seems to be the rule that a corporation may be sued in such 
 cases. Fogg v. GriflSn, 2 Allen, 1 ; Foster v. Essex Bank, 17 Mass. 479 ; 
 Peebles v. Pataps Co., 77 N. C. 233; Eailroad Co. v. Schuyler, 34 N. Y. 
 See, ante, pp. 66, 67, 68. 
 
FKADD BY Oil THKOUGH AGENT. 387 
 
 tion (?/). It has been suggested, but never decided, that 
 it is limited to the amount by which the principal has 
 profited through the agent's fraud.- The Judicial Commit- 
 tee have held a principal liable who got no profit at all (2;). 
 But it seems to be still arguable that the proposed limita- 
 tion holds in the case of the defendant being a corpora- 
 tion (a), though it has been disregarded in at least one 
 comparatively early decision of an English superior court 
 the bearing of whigh on this point has apparently been 
 overlooked (6). Ulpian, on the other hand, may be cited 
 in its favour (c). 
 
 Iteason of apparently hard law. The hardest case 
 that can be put for the principal, and by no means an im- 
 possible one, is that the principal authorizes a specific 
 statement which he believes to be true, and which at the 
 time of giving the authority is true ; before the agent has 
 executed his authority the facts are materially changed to 
 the knowledge of the agent, but unknown to th^ principal; 
 the agent conceals this from the principal, and makes the 
 statement as originally authorized. But the case is no 
 harder than that of a manufacturer or carrier who finds 
 himself exposed to heavy damages at the suit of an utter 
 
 (1/) Bartdck v. English Joint Stock ance of an announcement no longer 
 
 Bank (1867), Ex. Oh. L. K. 2 Ex. 259, 36 L. true; (3) the corporation derived no 
 
 J. Ex. 147 ; Mackay T. Commercial Sank profit. The point, however, was not dis- 
 
 ofNew Brunswick (1874), L. E. 5 P. C. 394, cusBed. 
 
 43 L. J. P. C. 31 ; Svnre v. Francis (1877), (c) D. 4. 3, de dolo nialo, 15 § 1. Sed 
 
 3 App. Ca. 106, 47 L. J. P. 0. 18 (J. C.) ; an in mnnicipes de dolo detnr actio, 
 
 Jlmildsworth v. City of Glasgow Bank dabltatur. Et puto ex suo quidem dolo 
 
 (1880),Sc. 5 App. Ca. 317. Seepp. 85, 86, non posse dari, quid enim municipes 
 
 above. dolo tauere possunt? Sed si quid ad eos 
 
 (z) Swire V. Francis, last note. pervenit ex dolo eoram qui ree eornm 
 
 (o) Lord Oranworth in Western Bank administrant, putodandam. TheBoman 
 
 of Scotland v.Addie (ISSDiluM.! So. & lawyers adhered more closely to the 
 
 D. at pp. 166, 167. Lord Chelmslord's original conception of moral fraud as 
 
 language Is more guarded. the ground of action than our courts 
 
 (b) Dentonv. a. N. B. Co. (.1856),p. 269 have done. The actio de dolo was 
 
 above. No case could be stronger, for famosa, and was never an alternative 
 
 (1) the defendant was a corporation ; (2) remedy, but lay only when there was no 
 
 there was no active or intentional false- other (si de his rebus alia actio non erit), 
 
 hood, but the mere negligent continu- D. ft. 1. 1. 
 
388 WRONGS OF FRAUD AND MALICE. 
 
 stranger by reason of the negligence of a servant, although 
 he has nsed all diligence in choosing his servants and pro- 
 viding for the careful direction of their work. The neces- 
 sary 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 distinction can be drawn between the case of 
 fraud and the case of any other wrong." The authority of 
 Barwick v. English Joint Stock Bank (cZ) is believed, not- 
 withstanding the doubts still sometimes expressed, to be 
 conclusive. 
 
 II. — Slander of Title. 
 
 Slander of title. The wrong called Slander of Title is 
 in truth a special variety of deceit, which differs from the 
 ordinary type in that third persons, not the plaintiff him- 
 
 (.0) L. E. 2 Ex. 259, 265. 
 
 Slander of title. An action lor slander of title will lie against one who 
 falsely and maliciously disparages the title of another to property, real 
 or personal, and thereby causes him some special pecuniary loss or 
 damage; and 'in order to maintain the action, it is necessary to 
 establish each of these facts. Words spoken disparagingly of 
 property, however false or malicious, are not in themselves ac- 
 tionable, unless special pecuniary damage has resulted therefrom 
 as the direct and natural result of the utterance of the words. Burkett 
 V. Griffith, 90 Cal. 532 ; 27 Pac. Eep. 527. See Marsh v. Billings, 7 Cush. 
 322; Chesebro v. Powers, 78 Mich. 472; 44 N. W. Rep. 290; Duncan w. 
 Griswood, 18 S. W. Eep. 354. To sustain an action for slander of title, 
 malice, either express or implied, mast be shown. Dodge v, Colby, 
 37 Hun, 515; Walden v. Peters, 2 Bob. (La.) 331; Weakley v. Bostwick, 
 49 Mich. 374; Andrews v. Deshler, 45 N. J. L. 167. Also, special damages 
 to the plaintiff must be proven. Swan v. Tappan, 5 Gush. Ill; Tobias v. 
 Harland, 4 Wend. 637; Gott v. Pulsifer, 122 Mass. 235; 23 Am. Rep. 322. 
 In an action for slander of goods It must be shown that the defendant has 
 injured the plaintiff by his false representations. The mere averment 
 that the plaintiff was compelled to go out of business is not sufficient to 
 sustain the action. Dudley v. Briggs, 141 Mass. 582. 
 
SLANDER OF TITLE. 389 
 
 self, are induced by the defendant's falsehood to act in a 
 manner causing damage to the plaintiff. Notwithstanding 
 the current name, an action for this cause is not like 
 an action for 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" (e). 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 (/.); or actual 
 malice, no less thatispecial damage, is of the gist of the 
 action. 
 
 Recent extensions of the principle. This kind of action 
 is not frequent. Formerly it appears to have been applied 
 only to statements in disparagement of the plaintiff's title 
 to real property. It is now understood that the same 
 reason applies to the protection of title to chattels, and of 
 exclusive interests analogous to property, though not 
 property in the strict sense, like patent rights and copy- 
 right. 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 (g). . In America the law has been extended 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 difference that the original agree- 
 
 (e) Tindal 0. J., Malaohy v. Soper Twad, eupra (patent; in Wren v. Weiid 
 
 (1836), 3 Bing. K. O. 371 ; Blgelow L. C. the action is said to be of a new kind, 
 
 42, 52. but sustainable with proof of malice) ; 
 
 '(/) BaUey v. Brotherhood (1881), 19 Ch. Steward v. Young (1870), L. E. 5 C. P. 122, 
 
 IMv. 386, 51 L. J. Ch. 233, confirming pre- 39 L. J. 0. P. 85 (title to goods) ; Bidka v. 
 
 Tions authorities. Brooks (1880), 15 Ch. D. 22,49L. J. Oh. 
 
 (^) Wren T. WSld (1869) , L. K. 4 Q. B. 812 (copyright in design), see 19 Ch. D. 
 
 730, 38 L. J. Q. B. 327 ; JTaCsey v. Brother- 391. 
 
390 WRONGS OF FRAUD AND MALICE, 
 
 ment was not enforceable for want of satisfying the Statute 
 of Frauds (/t) 
 
 A disparaging statement concerning a man's title 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 included in defamation, 
 but it is evidently better for the plaintiflF to rely on the 
 general law of defamation if he can, as thus he escapes the 
 troublesome burden of proving malice, («). 
 
 It has been held in Massachusetts that if A. has exclu- 
 sive privileges under a contract with B., and X. by pur- 
 posely misleading statements or signs 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. 
 {k). In that case the defendants, 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 em- 
 ployed by the hotel-keeper to ply between the hotel and the 
 railway station ; and there was some evidence of express 
 statements 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 curiou^ link between the general law of false 
 representation and the special rules as to the infringement 
 
 (ft) Bentonf. Pratt (1S29),2 Wend.385; Massam (1879), 14 Oh. Div. 763; XHcks v. 
 
 nice V. Monies (1876), 66 N. Y. (21 ^rootg, last note but one. 
 Sickels) 82. (i) Marsh t. BiUingt (1861), 7 Cush. 
 
 (») Sec Thorley's Cattle Food Co. v. 322, and Bigelow L. 0. 59. 
 
SLA>'DEll OP TITLE. 391 
 
 of rights to a trade mark or trade Dame (Z). 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 hotelkeeper 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 
 fraudulent infringement. Goodwill in the accustomed 
 sense does not need the same kind of protection, since it 
 exists by virtue of some express contract 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 of a house on behalf of the 
 owner as against an adjacent owner. Such a right is not 
 known to the law (m). 
 
 Trade marks and trade names. 'Phe protection of 
 trade marks and trade names was originally undertaken by 
 the courts on the ground of preventing fraud («)■ But the 
 right to a trade mark, after being more and more assimi- 
 lated to proprietary rights (o), has become a statutory 
 
 (0 The instructions given at the trial (ra) See per Lord Blaclsburn , S App 
 
 (Bigelow L. 0. at p. 63) were held to Ca. at p. 29; Lord Westbury, L. E. 5 11. 
 
 have drawn too sharp a distinction, and L. at p. 522; Mellisb L. J., 2 Ch. D. at p. 
 
 to have laid down two narrow a measure 453. 
 
 of damages, andanewtrialwasordered. ■ (o) Singer Manufacturing Co. -7. Wil- 
 li was also said that actual damage need son (1876), 2 CD. 1>. 431, per Jessel M. B. 
 not be proved, serf qu. at pp. 441-2 ; James L. J. at p. 451 ; Mellish 
 
 l,m) Dayy. Brownrigg (,\Sifi) (revers- L.J. at p. 454. 
 ing Mallns V.-C.) , 10 Ch. Div. 294, 48 L. J. 
 Oh. 173. 
 
 Trade-marks and patent rights. An action for slanderL,of title to 
 letters-patent may be maintained. Meyrosec. 'Adams, 12 Mo. Ap. 329; 
 Andrews v. Deshler, 45 N. J. L. 167. In order to make out a case of 
 deceit based on a trade-mark it must appear (1) tliat the defendant knew 
 of the existence of the plaintiff's mark when he committed the alleged 
 wrong; (2) that defendant Intended to palm off these goods as the goods 
 of tie plaintiff, or to represent that the business which he was carrying 
 on was the plaintiff's or the business of which the plaintiff had a special 
 patronage; (3) that the public were deceived thereby. Bigelow on 
 TortSi 36. 
 
392 WRONGS OF FRAUD AND MALICE. 
 
 franchise analogous to patent rights and copyright (p); 
 and in the case of a trade name, although the use of a 
 similar name cannot be complained of unless it is shown to 
 have a tendency to deceive customers, yet the tendency is 
 enough ; the plaintiff is not bound to prove any fraudulent 
 intention or even negligence against the defendant (q). 
 The wrong to be redressed is conceived no longer as a 
 species of fraud, but as being to an incorporeal franchise 
 what trespass is to the possession, or right to possession, 
 of the corporeal subjects of property. We therefore do 
 not pursue the topic here. 
 
 III. — Malicious Prosecution and Abuse of Process. 
 
 Malicious prosecution. We have here one of the few 
 cases in which proof of evil motive is required to complete 
 an actionable wrong. "In an action for malicious prose- 
 cution the plaintiff has to prove, first, that he was innocent 
 
 (J)) Patents, Designs, and Trade Div. 638, 50 L. J. Ch. 456 ; Singer Manw- 
 Marks Act, 1883, 46 & 4T Vict. c. 57. facturing Co. v. Loog (1882), 8 App. Ca.l5. 
 
 (g) Hendriks-v. Montagu (1881), 17 Ch. 
 
 Malicious prosecution. The numerous American authorities upon 
 this subject agree with the text, vide, Shaul v. Brown, 28 Iowa, 42; 4 Am. 
 Bep. 151 ; Ball v. Rawles, 93 Cal. 228 ; 28 Pac. Rep. 937 ; Tucker v. Cannon, 
 28 Neb. 196; 44 N. W. Rep. 440; Peterson v. Toner, 80 Mich. 350; 45 N. 
 W. Rep. 346; Cooper v. Langway, 76 Tex. 121; 13 S. W. Rep. 179; Pace 
 V. Aubrey, 43 La. An. 1052 ; 10 So. Rep. 381 ; Bennett v. Aubrey, Id. ; 
 Shannon v. Jones, 76 Tex. 141;' 13 S. W. Rep. 477; Taylor r. 
 Dominick, 36 S. C. 368; 15 S. E. Rep. 691; Jones v. Jenkins, 3 Wash. St. 
 17; 27 Pac. Rep. 1022; McCormack v. Perry, 47 Hnn, 71; Rosen- 
 berg V. Hart, 36 111. App. 262; Heyne o. Blair, 62 N. T. 19; Ex parte 
 Wilson, 114 U. S. 417; Bartlett v. Brown, 6 R. I. 87; Pierce v. Thompson, 
 6 Pick. 192; Cook v. Walker, 30 Ga. 619; Ray v. Law, 1 Pet. 207; Stock- 
 ing V. Howard, 73 Mo. 26; Whitson v. May, 71 Ind. 106; Green v. Cochran, 
 43 la. 544; Everett v. Henderson, 146 Mass. 93; Girot v. Graham, 41 La. 
 An. 511; 6 So. Rep. 815; Jones v. Jones, 71 Cal. 89; 11 Pac. Rep. 817; 
 Bidwell V. Osgood, 3 Pick. 379; 15 Am. Dec. 228; Bixby v. Brundage, 2 
 Gray, 129; 61 Am. Dec. 443; Marshall v'. Betner, 17 Ala. 882; Whiting v. 
 Johnson, 6 Gray, 246 ; Stancliff v. Palmeter. 18 Ind. 324 ; Bailey v. Dodge, 
 
MALICIOUS ABUSE OF PROCESS. 393 
 
 and that his innocence was pronounced by the tribunal 
 before which the accusation was made ; secondly, that there 
 
 28 Kan. 72; Collins v. Love, 7 Blackf. 416; Smith v. Deaver, 4 Jones L. 
 513; Hayes v. Younglove, 7 B. Mon. 445; Morris v. Scott, 21 Wend. 281; 
 34 Am. Dec. 236; followed in Dennis v. Ryan, 65 N. Y. 889; 1 Am. Lead. 
 Cas. 281; Brelet v. Mullen, 44 La. An. 194; 10 So. Eep. 865; Drayfus v. 
 Aul, 29 Neb. 191; 45 N. W. Rep. 282; Fugate v. Millar, 109 Mo. 281; 19 
 S. W. Rep. 71. 
 
 (1) Malice. To maintain an action for malicious prosecution malice on 
 the part of the prosecutor, either express or implied, must be proved. 
 Malice may be presumed from a total want of probable cause for the 
 prosecution. Forbes v. Hagman, 75 Va. 168; Joiner v. The Ocean Steam- 
 ship Co., 86 Ga. 238; 12 S. B. Rep. 361; Schlietz v. Laufitt, 63 Pa. St. 
 234; Murphy v. Hobbs, 8 Colo. 17; Johnson v. Ebberts, 6 Sawyer, 
 638 ; FlicMnger v. "Wagner, 46 Md. 580 ; Miller v. Willigen, 48 Barb. 
 30; Ames v. Scheider, 69 HI. 376; Smith v. Austin, 49 Mich. 286; 
 Emerson v. Cochran, 111 Pa. St. 619; Stewart v. Sounneborn, 98 U. S. 
 187; Wagstaff v. Schippel, 27 Kan. 450; Carson v. Edgeworth, 43 Mich. 
 241; Bobson v. Kingsbury, 138 Mass. 638; Harkraderi;. Moore, 44 Cal. 
 144; Ewing ». Sanford, 19 Ala. 605; Cooper v. Utterback, 37 Md. 282; 
 Gilliford v. Windel, 108 Pa. St. 142; Pangburm v. Bull, 1 Wend. 346; 
 Merriam v. Mitchell, 13 Me. 559; Gee v. Culver, 13 Oreg. 600; 11 Pac. 
 Rep. 302; Brewer v. Jacobs, 22 Fed. Rep. 217, But the mere discontinu- 
 ance of a criminal prosecution, or the acquittal of the accused, will 
 establish neither malice nor want of probable cause. Johns v. Marsh, 
 52 Md. 323; Spear v. Hiles, 67 Wis. 350; Hamilton v. Smith, 39 Mich. 
 222; Tocum v. Polly, 1 B. Mon. 358; Skidmore v. Bricker, 77 111. 104; 
 Bitting V. Ten Byck, 82 Md. 421. The burden of proving that the prose- 
 cution was malicious is upon the plaintiff. McKnown ti. Hunter, 30 N. 
 r. 625; Flickinger v. Wagner, 46 Md. 581. And the jury are the exclu- 
 sive judges of malice. Stone v. Stevens, 12 Conn. 219; Center v. 
 Spring, 2 Clarke (la.), 393; "Vinal v. Core, 18 W. Va. 1. 
 
 (2) Want of probable cause. In order that an action for malicious 
 prosecution may be maintained, the plaintiff must show that the defend- 
 ant had no probable cause for the commencement or the continuation of 
 the proceeding complained of. " The gravamen of the action is that the 
 defendant Instituted the proceedings without probable cause, that is, ■ 
 without having at the time such knowledge or information of the circum- 
 stances as would superinduce in the mind of an ingenious and unpreju- 
 diced person of ordinary capacity a reasonable belief that the plaintiff 
 was guilty of the charge. The defense must be that he did believe and 
 had reasonable grounds to believe at the time that the accusation he made 
 was well founded.." Harkrader v. Moore, 44 Cal. 149; Brounstein v. 
 Wile, 65 Hun, 623; 20 N. Y. S. R»p. 204; Poraeroy «. Villavossa, 31 Id. 
 690; Casto v. De Uriarte, 16 Fed. Rep. 94; Walker v. Camp, 63 la. 627; 
 
394 WRONGS OF FRAUD AND MALICE. 
 
 was a want of reasonable and probable cause for the 
 prosecution, or, as it may be otherwise stated, that the cir- 
 
 Wheeler v. Nesbitt, 24 How. 544; Landa v. Obert, 45 Tex. 539; Ames v. 
 Suider, 69 III. 376; Shaver v. Loucks, 58 Barb. 426; Munnss. Dupont, 3 
 Wash. C. Ct. 31; Glasgow v. Owen, 69 Tex. 167; Sharpe v. Johnson, 76 
 Mo. 660; McGurn «. Brackett, 33 Me. 331; Bauer v. Clay, 8 Kan. 580; 
 Dwaln V. Discalo, 66 Cal. 415; 'Wilwartli'j;. Mountford, 4 Wash. C. Ct, 
 79; Boyd v. Cross, 35 Md. 197; Bacon v. Towne, 4 Cush. 217; Ulmer v. 
 Leland, 1 Greenl. 135; 10 Am. Dec. 48; Hampton v. Jones, 58 la. 317; 
 Carl B. Ayers, 53 N. Y. 15; Brown v. Willoughby, 5 Colo. 1; Davie v. 
 Wisher, 72 111. 162; Casey r. l^evatson, 30 Minn. 516;" Cole v. Curtis, 16 
 Id. 182; Paddock ». Watts, 116 Ind. 146; Jordan v. 6. S. E. Co. v. 
 Kriske, 30 Neb. 315; 46 N. W. Bep. 520; Cheever v. Sweet, 151 Mass. 
 186; 23 N. W. Rep. 831; Sears v. Hathaway, 12 Cal. 277; Stansellt). Cleve- 
 land, 64 Tex. 660; Brennan v. Tracy, 2 Mo. App. 540. Neither is the 
 defendant justified if he knew the facts constituting a probable cause 
 bat did not believe them. Woodworth v. Mills, 61 Wis. 44; Plummer 
 V. Johnson (Wis.), 33 N. W. Eep. 334; Josselyon v. McAllister, 25 
 Mich. 45. 
 
 The expressions " reasonable cause " and " probable cause " have 
 esentially the same meaning. Stacy i;. Emery, 97 U. S. 642. "Just 
 or proper cause " distinguished. Van De Wiele v. Callahan, 7 Daly, 
 386. 
 
 It has been held that the question of probable cause is entirely inde- 
 pendent of the plaintiff's actual guilt or innocence of the crime for 
 which he was prosecuted. Lyton v. Baird, 95 Ind. 349. See Wood- 
 worth V. Mills, 61 Wis. 44; Baldwin v. Weed, 17 Wend. 224; Thompson 
 V. Lamley, 50 How. Pr. 105; Moore v. Sanborn, 42 Mo. 490; Callaway v. 
 Burr, 32 Mich. 332; King v. Calvin, 11 R. I. 582; Miller v. Milligan, 48 
 Barb. 30 ; French v. Smith, 4 Vt. 363. But mere belief of a person 
 making a criminal complaint, that it is trne, does not alone justify a prose- 
 tion thereunder; it must rest on reasonable grounds and on such facts as 
 would lead a person of ordinary caution to honestly suspect the accused 
 of guilt., Spalding v. Lowe, 56 Mich. 366 ; Eoss v. Langworthy, 13 Neb. 
 492; Ramsey v. Arrott, 64 Tex. 320; Hall v. Suydam, 6 Barb. 83; Collins 
 V. Hayte, 50 111. 358; Winebiddle v. Porterfleld, 9 Pa. St. 137; Mowry 
 Whipple, 8 R. I. 360; McClafierty v. Philp, 151 Pa. St. 86; 24 At. Eep. 
 1042; 30 W. N. C. 539. 
 
 (3) Termination of former action. No action for malicious prosecu- 
 tion can be maintained until the proceeding complained of has been 
 legally terminated in favor of the defendant therein. "In a case of 
 malicious prosecution the right of action accrues ■whenever the criminal 
 proceeding is disposed of in such a manner that it cannot be revived ; 
 and the prosecutor if he proceeds further, will be put to a new one." 
 
MALICIOUS ABUSE OF TKOCESS. 385 
 
 cumstances of the case were such as to be in the. eyes of 
 the judge inconsistent with the existence of reasonable and 
 
 Dreyfus v. Aul, 29 Neb. 191 ; 45 N. W. Eep. 282, citing Casebeer v. 
 Drahoble, 13 Neb. 465; 14 N. W.Rep. 397; Same v. Rice, 18 Neb. 203; 24 
 N. W. Eep. 698. See Cardlval v. Smith, 109 Mass. 158; 12 Am. Rep. 682; 
 Leever v. Hamil, 57 Ind. 423; Hatch v. Cohen, 84 N. C. 602; Lowe v. 
 Waterman, 47 N. J. L. 413; Swensgaard v. Davis, 33 Minn. 368; Brown 
 ». Randall, 36 Conn. 56; O'Brien ». Barry, 106 Mass. 300; 8 Am. Rep. 
 329; Stone v. Crocker, 24 Pick. 87; Sales v. Briggs, 4 Mete. 421; Bacon 
 V. Waters, 2 Allen, 400; Gillespie v. Hudson, 11 Kan. 163; Hamilburgh 
 V. Shepard, 119 Mass. 3ft; Spring v. Besore, 12 B. Mon. 551; West v. 
 Hayes, 104 Ind. 251; Gorrell o. Snow, 31 Ind. 215; Steel v. Williams, 
 18 Ind. 161 ; Robbins v. Robbins, 133 N. Y. 597 ; 30 N. E. Rep. 978 ; Sutton 
 McConnell, 46 Wis. 270; 50 N. W. Rep. 414; Gallagher v. Stoddard, 47 
 Hun, 101; Apgar v. Woolston, 43 N. J. L. 57; Darnell v, Sallee (Ind. 
 App.), 34 N. E. Rep. 1020. 
 
 If the actign has been appealed the appeal must have been deter- 
 mined. Reynolds v. DeGreer, 13 111. App. 113; Nebenzahl v. Townsend, 
 61.H0W. Pr. 353; Howell v. Edwards, 8 Ired. 516. 
 
 The general rule as above laid down, however, does not prevail where 
 the proceedings have been ex parte for the reason that the defendant in 
 such cases has had no opportunity to disprove the charges preferred 
 against him. Bump v. Betts, 19 Wend. 421; Fortman v. Rattier, 8 
 Ohio St. 548; Hyde v. Greuch, 62 Md. 577; Olson v. Neal, 63 la. 214; 
 Searll v. McCrackin, 16 How. Pr. 262. 
 
 A defendant who has been discharged on a preliminary hearing before 
 a magistrate on charge of a crime, may sue his prosecutor therefor. 
 Sayles v. Briggs, 4 Mete. 421; Burkettv. Lavata, 15 La. An. SB7; Cardival 
 V. Smith, 109 Mass. 1 58 ; Coffey v. Myers, 84 Ind. 105. So, If discharged 
 on habeas corpus. Zebley o. Storey, 117 Pa. St. 478; 12 At. Rep. 569. 
 
 Advice of counsel. It may be stated as a general rule that where a 
 plaintiff who, after consulting counsel in good standing and fully and 
 fairly disclosing the facts of his case within his knowledge, acts upon 
 the advice of such counsel, is not liable in a suit for malicious prosecu- 
 tion. Jackson ». Linnington, 47 Kan. 396; 28 Pac. Rep. 173; Miller o. 
 C, M. St. P. Ry. Co., 41 Fed. Rep. 898; Rives v. Wood (Ky.), 15 S. W. 
 Eep. 131; Soule v. Winslow, 66 Me. 447; Donnelly v. Daggett, 145 Mass. 
 314; Walker v. Camp, 69 la, 741; Eastman, v. Keasor, 44 N. H. 519; 
 Hill ». Palm, 38 Mo. 13; Decoux v. Lieux, 33 La. An. 392; Burmis ». 
 North, 64 Me. 426 ; Fisher v. Forrester, 33 Pa. St. 501 ; Potter v. Seale, 
 8 Cal. 217; Rickord v. Cent. Pac. R. Co., 15 Nev. 167; White v. Carr, 71 
 Me. 555; 36 Am. Rep. 353; Moore v. Mo. Pac. R. Co., 37 Minn. 147; 
 Gilbertson v. Fuller, 40 Minn. 413; Anderson v. Friend, 71 111. 475; 
 Smiths. Astin, 49 Mich. 286; Newton v. Weaver^ 13 R. I. 616; Blunt, «. 
 Little, 3 Mason, 102; Wilder v. Holden, 24 Pick. 8; Roy v. Goings, 112 
 
396 WKONGS OF FRAUD AND MALICE. 
 
 probable cause (r) ; and, lastly, that the procepdinga of 
 which he complains were initiated in a malicious spirit, that 
 is, from an indirect and improper motive, and not in 
 furtherance of justice " (s). And the plaintiff's case fails 
 
 (r) The facts have to be found by the Appeal was affirmed in H. L. (1886), 11 
 jury, but the inference that on those App. Ca. 247,B5L. J. Q.B. 467. A plaint- 
 facts there was or was not reasonable Iff who, being indicted on the prosecm- 
 and probable cause is not for the jury tion complained of, has been found not 
 but for the Court: cp. the authorities on guilty on a defect in the indictment (not 
 false imprisonment, pp. 197—203, above, now a probable event) is sufficiently in- 
 
 (s) Bowen L. J., Abrathv. JV. E. B. nocent for this purpose: Wicks v. 
 
 Co. (1883), 11 Q. B. Div. 440, 455, 52 L. J. Fenfham (1791), 4 T. E. 247, 2 E. E. 374. 
 Q. B. 620 : the decision of the Court of 
 
 111. 656; Hurlbut v. Boaz (Tex. Civ. App.), 23 S. W. Rep. 446; Stan- 
 ton V. Hart, 27 Mich. 539 ; McCuUough i?. Eice, 59 Ind. 580 ; 45 Am. Rep. 
 353; Brobst v. 'Rait, 100 Pa. St. 91; 45 Am. Rep. ,358; Sutton v. 
 McConnell, 46 Wis. 270; 50 N. W. Rep. 414; Burgett v,. Bnrgett, 43 
 Ind. 78; Beal v. Robeson, 8 Ired, 276; Stone v. Swift, 4 Pick. 389; Smith 
 V. King, 62 Conn. 515; 26 At. Rep. 1059; Rigdon v. Jordan, 81 Ga. 668; 
 Sweeney v. Perney, 40 Kan. 102; Breitmesser v. Steir, 13 Phila. Rep. 80; 
 Williams v. "Van Meter, 8 Mo. 339 ; Straus v. Young, 37'Md. 282. 
 
 The reason of the rule is that such conduct by a person who feels 
 aggrieved disproves malice and shows probable cause. "The fact 
 that the defendant sought, received and acted upon the advice of 
 counsel affords strong evidence that there was probable cause and that 
 the prosecution was entered into In good faith and without malice." 
 Spidmore v. Bricker, 77 111. 164. See Ames v. Snider, 69 111. 376; 
 Wicker®. Hotchkiss, 62 111. 107; 14 Am. Rep. 75; St. Johnsbnry & Co. 
 ». Hunt, 59 Vt. 294; Jones D. Jones, 71 Cal. 89; Allen o. Codmail, 139 
 Mass. 186; Walters. Sample, 25 Pa. St. 275; Olmstead v. Partridge, 16 
 Gray, 381; Hall v. Suydam, 6 Ba^rb. 83; Cole v. Curtis, 16 Min. 182; Ash 
 V. Marlow, 20 Ohio, 119; Wills v. Noyes, 12 Pick. 324; Logan ■». Maytag, 
 67 la. 107; Norrel ». Vogel, 39 Miinn. 107; Prough v. Emtriken, 11 Pa. St. 
 81; Schmidt t;. Wedman, 63 Pa. St. 173; Griffin v. Chubb, 7 Tex. 608; 68 
 Am. Dec. 85 ; Kimbal ». Bates, 60 Me. 308 ; Chapmiun v. Dodd, 10 Minn. 
 350; Davie v. Wisher, 72 111. 662; Cuthbert v. Galloway, 35 Fed. Rep. 466. 
 
 All the material facts known to the defendant, or which he could 
 have ascertained by reason able dUigence, relative to the case, must have 
 been stated. Donuelly v. Daggett, 145 Mass. 314 ; Paddock v. Watts, 116 
 Ind. 146; 18 N. E. Rep. 618; Motes v. Bates, 80 Ala. 382; Smith v. Austin, 
 49 Mich. 286; Forbes w. Hagman, 75 Va. 168 ; Sappington o. Watson, 50 
 Mo. 83; Cooper v. TJtterbact, 37 Md. 282. 
 
 Malicious prosecution by corporations, see', ante, p. 68. 
 
 Malicious prosecution and false imprisonment distinguished, see, ante. 
 
MALICIOUS ABUSE OP PROCESS. 397 
 
 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 need- 
 less for the purposes of this work to add illustrations from 
 earlier authorities. 
 
 It is no excuse for the defendant that he instituted the 
 prosecution under the order of a Court, if the Court was 
 moved by the defendant's false evidence (though not at his 
 request) to give that order, and if the proceedings in the 
 prosecution involved the repetition of the same falsehood. 
 For otherwise the defendant would be allowed to take 
 advantage of his own fraud upon the Court which ordered 
 the prosecution {t). 
 
 As in the case of deceit, and for similar reasons, it has 
 been doubted whether an action for malicious prosecution 
 will lie against a corporation. It seems, on principle, that 
 such an action will lie if the wrongful act was done by a 
 servant of the corporation in the course of his employment 
 and in the company's supposed interest, and it has been so 
 held (m); but there are dicta to the contrary {x), and in 
 particular a recent emphatic opinion of Lord Bramwell's(y), 
 which, however, as pointed out by some of his col- 
 leagues at the time (s), was extra-judicial. ' 
 
 Malicious civil proceedings. Generally speaking, it is 
 not an actionable wrong to institute civil proceedings with- 
 out reasonable and probable cause, even if malice be proved. 
 
 (0 Mtzjohn v. Macldnder (Ex. Oh. (a) See the judgment In the case last 
 
 1861), 9 G. B. N. S. 505, 30 L. J. C. P. 257 . cited. 
 
 ((i»M. Blackburn and Wightman JJ.). (») 11 App. Oa. at p. 250. 
 
 (u) Edwards v. Midland Mail. Co. («) Uord Fitzgerald, 11 App. Ca. at p. 
 
 (1880), 6 Q. B. D. 287, 50 L. J. Q. B. 281, 244; Lord Selborne at p. 256. 
 Fry J. 
 
 Malicious civil proceedings. Agreeing with the text, In this country 
 " the policy of the law has always been to guaranty immunity to suitors 
 who, in good faith, adopt and pursue the due forms of the law, although 
 they may ultimately fail to establish their claims." McFadden v. Whit- 
 ney, 51 N. J. 391; 18 At. Eep. 63, citing Bitts v. Meyer, 11 Vroom, 252; 29 
 
398 WRONGS OF Fit A UD AM) MALICE. 
 
 For in contemplation of law the defendant who is unrea- 
 sonably sued is sufficiently indemnified by a judgment in 
 
 Am. Rep. 233. See Mitchell u. S. W. R. Co., 75 Ga. 398; Potts v. Imlay, 
 4 N. J. L. 330; Parker v. Frambes, 2 Id. 156; Stlmer v. Bryant, 84 Micli. 
 466 ; 47 N. W. Rep. 1099. Mr. Justice Sharwood, in the case of Mayer ii. 
 Walter (64 Pa. St. 285), said: "If the person be not arrested, or his 
 property seized, it is unimportant how futile and unfounded the action 
 may be, as the plaintiff, In consideration of law, is punished by the pay- 
 ment of costs." Followed in Muldoon v. Rickey, 103 Pa. St. 113. See 
 Eberly v. Rupp, 90 Pa. St. 259; Kramer v. Stock, 10 Watts, 115; West- 
 more V. Mellinger, 64 la. 741 ; 52 Am. Rep. 465; Smith v. Hintrager, 67 
 la. 109; McNamee v. Minke, 49 Md, 122. 
 
 But in the United States there are, however, many decisions 
 holding a contrary view and the recent cases undoubtedly 
 established the rule that one who unsuccessfully proceeds civilly 
 against another, with malice and without probable cause, is liable 
 in damages to that other, although his person was not molested 
 or his property seized. In the case of Smith v. Burrus, 106 Mo. 94, 16 
 S. W. Rep. 881, Sherwood, C. J., in delivering the opinion of the court, 
 said: " The authorities are in conflict as to whether a petition states a 
 cause of action which merely alleges that a civil action, brought and 
 prosecuted maliciously and without probable cause, has been terminated 
 in favor of the defendant; many of the authorities maintaining that no 
 cause of action exists unless such civil process be accompanied by arrest 
 of the person or seizure of the property, and that the plaintiff in such 
 original action, in contemplation of law is sufficiently punished by the pay- 
 ment to costs. * * * But there are numerous and able decisions in 
 opposition to this view, and it is difficult to combat the force of the reason- 
 ing they employ. It is difficult to see why the right of the plaintiff, who, 
 as defendant has been sued in a civil action maliciously and without prob- 
 able cause, and who has been put to great expense in consequence 
 thereof, should be altered or at all affected by the Incident of his property 
 having been attached or his person seized; for, In either case, the dam- 
 age, the expense, and the cost of defending a suit, whether instituted by 
 ca. sa. or attachment, or by civil summons, would be the same, and It is 
 clear that the recovery of costs would not, under our practice, reimburse 
 him for the attorney's fees, something which and other Incidental expenses 
 he does recover under the English practice. * * * The better doctrine 
 is that which allows an action to be maintained as well where property, 
 etc. has not been seized as where it has." 
 
 See Duncan v. Griswold (Ky. App.), 18 S. W. Rep. 354; Lindsay o. 
 Larned, 17 Mass. 190; Autcliff v. June, 81 Mich. 477; 45 N. W. Rep. 
 1019; Kemp v. Brown, 43 Fed. Rep. 391; Whipple ». Fuller, 11 Conn. 582; 
 Closson V. Staples, 42 Vt. 209; McCardle v. McGinley, 86 Ind. 538; 44 
 Am. Rep. 343,- Lockenour v. Sides, 57 Ind. 360; 26 Am. Rep. 
 
MALICIOUS ABUSE OF PROCESS. 399 
 
 his favour which gives him his costs against theplaintiff (a). 
 And special damage beyond the expense to which he 
 
 (ffl) It is common knowledge that the tions action, then, H A. falls to persuade 
 
 costs allowed in an action are hardly the Court that B.'s original suit was 
 
 ever a real indemnity. The true reason vexatious, B. may again sue A. for 
 
 is that litigation must end somewhere, bringing this latter action, and so ad 
 
 If A. may sue B. for bringing a vexa- infinitum. 
 
 58; White v. Dlngley, 4 Mass. 433; Brown v. vCape Girar- 
 deau, 90 Mo. 377; Woods ». Knnell, 13 Busli, 628; Payne v. Done- 
 gan, 9 111. App. 566; O'Neill ». Johnson (Minn.), 55 N. W. Rep. 601. 
 It is the universal doctrine in both the United States and England 
 that if one maliciously and without probable cause, sue out a civil pro- 
 cess and cause another to be arrested or his property attached, such one 
 is liable for damages sustained thereby. Moody v. Dentsch, 85 Mo. 242; 
 Watkins v. Baird, 6 Mass. 611; Krug v. Ward, 77 111. 603; Tomlinson v. 
 Warner, 9 Ohio, 104; Hayden v. Shed, 11 Mass. 500; Wood u. Weir, 5 
 B. Mon. 644; Nelson ». Danielson, 82 111. '645; Pierce v. Thompson, 6 
 Pick. 193; Walser v. Thies, 56 Mo. 89. But see Witascheck v. Glass, 46 
 Mo. App. 215; Stewart v. Sonneborn, 98 U. S. 187; Newark Coal Co. v. 
 Upson, 40 Ohio St. 17; Hoyt v. Macon, 2 Colo. 113; Butchers etc. Co. v. 
 Crescent City etc. Co., 37 La. An. 878; Noonan v. Orton, 30 Wis. 366.' 
 
 Abuse of process. In the case of Wood v. Graves (144 Mass. 366), 
 the court very concisely and clearly states the law of this action, as 
 follows : — 
 
 "There is no doubt that an action lies for the malicious abuse of law- 
 ful process, civil or criminal. It is to be assumed in such a case, that 
 the process was lawfully Issued for a just cause, and is valid in form, 
 and that an arrest or other proceeding upon the process was justifiable 
 and proper in its inception. But the grievances to be redressed arise in 
 consequence of subsequent proceedings. For example, if after the 
 arrest, upon civil or criminal process, the person arrested is subjected to 
 unwarrantable insults and indignities, is treated cruelly, is deprived of 
 proper food or is otherwise treated with oppression and undue hardship 
 he has a remedy by an action against the officer, and against others who 
 unite with the oflBcer in doing the wrong." See Johnson v. Keed, 136 
 Mass. 423; citing Page v. Gushing, 88 Me. 623. See Peters «. Tunell, 43 
 Minn. 459; 45 N. W. Rep. 866; Casey ». Hanrick, 69 Tex. 44; 6 S. W. 
 Eep. 405; Wood v, Bailey (Mass.), 11 N. E. Hep. 573; Emery v. Ginuan, 
 24 111. App. 65; Cuhady ». Powell, 35 Id. 29; Barnett v. Eeed, 51 Pa. St. 
 190; Savage o. Brewer, 16 Pick. 453. 
 
 " There is a distinction between a malicious use and a malicious abuse 
 of legal process. An abuse is where the party employs it for some 
 unlawful object, not the purpose it is intended by law to effect; in 
 other words perversion of it. * * * On the other hand, legal process, 
 civil or criminal, may be maliciously used so as to give rise to a cause of 
 
400 WRONGS OF FRAUD AND MALICE. 
 
 has been put cannot well be so connected with the suit as a 
 natural and probable cansequence that the unrighteous 
 plaintiff, on the ordinary principles of liability for indirect 
 consequences, will be answerable for them (&). " In the 
 present day, and according to our present law, the bringing 
 of an ordinary action, however maliciously, and however 
 crieat the want of reasonable and probable cause, will not 
 support a subsequent action for malicious prosecution " (c). 
 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 reason is that prosecution on a 
 charge " involving either scandal to reputation, or the pos- 
 sible loss of liberty to the person" (d), 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 probable 
 cause and with malice, is an actionable wrong (e). Other 
 similar exceptional cases were possible so long as there 
 
 ib) See the full exposition in tlie does not attend to the distinction by 
 
 Court o£ Appeal in Quarts Sill Gold which the authorities he relies on are 
 
 Mining Co. v. Eyre (1883), 11 Q. B. Dlv. explained. 
 674, 52 L. J. Q. B. 488, especially the (cJ) 11 Q. B. Div. 691. • 
 
 judgment of Bowen L. J. (e) Quartz Hill Gold Mining Co. V. 
 
 (c) Bowen L. J., 11 Q. B. D. at p. 690. Byre (1883), note (6). The contrary 
 
 There has been a contrary decision in opinions expressed in Johnson y. Enter- 
 
 Vermont: Olossonv. Staples (1869), 42 Vt. son (1871), L. R. 6 Ex. 329, 40 L. J. Ex. 
 
 209; 1 Am. Eep. 316. We do not think It 201, with reference to pro,-eedings under 
 
 is generally accepted in other JuriB- the BanKruptcy Act of 1869, are disap- 
 
 dictio»s ; it is certainly in accordance proved : under the old bankruptcy law 
 
 with the opinion expressed by Butler in it was well settled that an action might 
 
 his notes to Co. Lit. 161 o, but Butler be brought for malicious proceedings. 
 
 action where no objectis contemplated to be gained by it other than its 
 proper effect and execution." Mayer v. Walter, 64 Pa. St. 285, followed 
 in Eberly b. Eupp, 90 Id. 259. See Juchter v. Boehm, 67 6a. 538; Crus- 
 selle V. Pugh, 71 Id. 747; Emerson v. Cochran, 111 Pa. St. 619; Smith v. 
 Weeks, 60 Wis. 94. 
 
CONSPIRACY, ETC. 401 
 
 were forms of civil process commencing with personal 
 attachment ; but such procedure has not now any place in 
 our system ; and the rule that in an ordinary way a fresh 
 action does not lie for suing a civil action without cause 
 has been settled and accepted for a much longer time (f). 
 In common law jurisdictions where a suit can be commenced 
 by arrest of the defendant or attachment of his property, 
 the old authorities and distinctions may still be material (^g). 
 The principles are the same as in actions for malicious prose- 
 cution, mutatis miMa^idis: 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 (A). 
 Probably an action will lie for bringing and prosecuting 
 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 reasona- 
 ble or probable cause, whereby the party against whom 
 that action is brought sustains damage ; but certainly such 
 an action does not lie without actual damage (2). 
 
 IV. — Other Malicious Wrongs. 
 
 Conspiracy. The modern action for malicious prosecu- 
 tion has taken the place of the old writ of conspiracy and 
 the action on the case grounded thereon (A; ), out of which it 
 
 (/) Samle or SaviU t. Roberts (1698)^ (ft) Metropolitan Bank v. Poolei/ (_18S5), 
 
 1 Ld. Baym. 374,379;12Mod.208, 210, and 10 App. Ca. 210, 54 L. J. Q. B. 449. , 
 al80 in 5 Mod., Salkeld, and Carthew. (i) Cotterell v. JoTies (1851), 11 0. B. 
 
 (g) See Cooley on Torts, 187. As to 713, 21 L. J. 0. F. 2. 
 British India, see Haj. Chimder v. Roy (ft) V. N. B. 114 D. aqq. 
 
 Shama Soondari DeM, I. L. K. 4 Oal. 583. 
 
 Conspiracy. Criminal conspiracy is an indictable offence and must 
 be prosecuted in the name of the State as other crimes. It is different 
 in both character and effect from conspiracy in connection with a civil 
 action. By conspiracy in connection with a civil action, is meant the 
 confederating and combining of two or more persons to jointly do 
 
 26 
 
402 WRONGS OF FRAUD AND MALICE. 
 
 seems to have developed. Whether conspiracy is known to 
 the law as a substantive wrong, or in other words whether two 
 
 something, for which either of them, doing the same thing alone, would 
 be civilly responsible to any person injured thereby. That is, a conspir- 
 acy cannot be made the subject of a civil action unless something Is 
 done, which, without the conspiracy, would give a right of action. In 
 the opinion of the court delivered In the late case of Van Horn v. Van 
 Horn (52 N. J. L. 286), is a very learned exposition of the history and 
 present meaning of conspiracy, as follows: " It is not necessary to 
 consider the office of the ancient writ of conspiracy, and the process by 
 which, in time, it was superseded by the later and more efficacious 
 action on the case for conspiracy, and the still more modern action for 
 malicious prosecution. Nor will it now be advantageous to show how 
 long and difficult it was to separate the Idea of a criminal conspiracy at 
 common law, where the agreement or conspiracy was the gravamen of 
 the offence, from the real complaint in a civil action, that the combina- 
 tion of two or more persons, has enabled them to inflict a great wrong on 
 plaintiff. The combination or conspiracy in the latter case was, there- 
 fore, a matter of aggravation and inducement only, of which one or all 
 might be found guilty, while in the former, it was essential to show 
 that two or more had joined in an agreement to do an unlawful act, or 
 to do a lawful act in an. unlawful manner. The distinction is now well 
 established, that in civil actions the conspiracy is not the gravamen of the 
 charge, but may be both pleaded and proved in aggravation of the wrong 
 of which the plaintiff complains, and enabling him to recover against 
 all as joint tortfeasors. If he fails in the proof of a conspiracy or con- 
 certed design, he may still recover damages against such as are shown to 
 be guilty of the tort without such agreement." It is therefore apparent 
 that the damage done is the gist of the action, not the conspiracy. When 
 the mischief contemplated is accomplished, the conspiracy becomes Im- 
 portant, as it may affect the means and measure of redress. The party 
 wronged may look beyond the actual participants in committing the 
 injury, and join with them as defendants all who conspired to accom- 
 plish it, and the fact of conspiracy may aggravate the wrong; but the 
 simple act of conspiracy does not furnish a substantive ground of 
 action." Eobertson v. Parks, 76 Md. 118; 24 At. Rep. 413. See 
 Booker?), Puryear, 27 Neb. 34; 43 N. W. Eep. 133. A simple conspiracy, 
 however atrocious,,unless it resulted in actual damage to the party, is not 
 the subject of a civil action; something injurious must be actually done. 
 Hutchins v. Hutchins, 7 Hill, 907; Stevens u. Rowe, 59 N. H. 579; Laverty 
 r. Vanarsdale, 3 Cush. 145; McHenry v. Sneer. 56 la. 649; Percival u. 
 Harres, 142 Pa. St. 369; 21 At. Rep. 876; Russell v. Post, 138 U. S. 
 425; People v. Flack, 125 N. Y. 374; 26 N. E. Rep. 267; AUen v. Kirk, 
 81 la. 658; 47 N. W. Rep, 107; Habllchtel v. Yambert, 75 la, 539; 
 People V. Sheldon, 66 Hun, 590; 21 N. Y. S. Rep. 590; Morley v. 
 
CONSPIRACY, ETC. 403 
 
 or more persons can ever be joint wrong-doers, and liable to 
 an action as such, by doing in execution of a previous 
 agreement something it would not have been unlawful for 
 them to do without such agreement, is a question of mixed 
 history and speculation not wholly free from doubt. It 
 seems however to be now settled for practical purposes that 
 the conspiracy or ''confederation" is only matter. of 
 inducement or evidence (I). " As a rule it is the damage 
 
 (I) Mogul Steamship} Company v. McGregor, '92, A, O. 25, In H.L. 
 
 Elsbree (Pa.), 17 At. Rep. 212; Delz v. Winfree, 80 Tex. 400; 16 S. 
 W. Rep. Ill; Beeler 1J. Webb, 113 111. 4.S6; Fjndlay v. McAllister, 
 113 U. S. 104; Sheple v. Page, 12 Vt. 519; Adler v. Fenton, 24 How. 407; 
 Douglass V. 'Winslow, 52 N. Y. Superior Ct. 439; Burton o. Fulton, 49 
 Pa. St. 161; Wildee u. McKee, 111 Pa. St. 835. " It is well settled that 
 the acts and declarations of one of several conspirators in pursuance of 
 the original concerted plan, are, in contemplation of law, the acts and 
 declarations of them all, and may be shown in, evidence against each of 
 them. * * * Where the declarations are not acts in themselves, nor 
 part of the res gestae, but a mere relation or narrative of some part of the 
 transaction, or as to the share which other persons have had in the exe- 
 cution of a common design, they are not within the rule stated. * * * 
 Declarations made after the common enterprise is at an end, whether by 
 accomplishment or advancement, or which are not in furtherance of its 
 object, are not within the rule and will be excluded excepting as 
 against the one who made them." TaylorCounty v. Standlej^, 79 la. 666; 
 44 N. W. Rep. 913, reviewing tlie cases on this point. See Moore v. 
 Shields, 121 Ind. 26-7; N. E. Rep. 89; Lee v. Lamprey, 43 N. H. 13; Page 
 ■u. Parker, 40 N. H. 62 ; Toledo, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. 
 Rep. 730; Soloman v. Kirkwood, 55 Mich. 256; Am. Fur. Co. v. United 
 States, 27 U. S. 358; Phoenix Ins. Co. o. Moog, 78 Ala. 284; Williams v. 
 Dickenson, 28 Fla. 90; 9 So. Rep. 847; Turner v. State (Ala.), 12 So. 
 Rep. 54. Bat such declarations are not admissible until after tlje con- 
 spiracy has been established by ^riMia/aae evidence. Holiday ?;. Jack- 
 son, 30 Mo. App. 263. S. P., Rutherford v. Schattman, 111 N. Y. 605; 23 
 N. E. Rep. 440. 
 
 A conspiracy to defraud maybe Inferred from the circumstances under 
 which the parties are found to have acted, without direct evidence of 
 conspiracy. Redding ». Wright, 49 Minn. 322; 51 N. W, Rep. 1056, 
 
 Corporations. An action may now be maintained against a corporation 
 for damages caused by or resulting frbm a conspiracy In which it 
 joined through its agents acting in the course of their employment. 
 See the cases cited, ante, p. 67. 
 
404 WRONGS OF FRAUD AND MALICE. 
 
 wrongfully done, and not the conspiracy, that is the gist 
 of actions on the case for conspiracy " (m). " In all such 
 cases it will be found that there existed either an ultimate 
 object of malice or wrong, or wrongful means of execution 
 involving elements of injury to the public, or at least 
 negativing the pursuit of a lawful object" (n). Either 
 the wrongful acts by which the plaintiff has suffered were 
 such as one person could not commit alone (o), say a riot, 
 or they were wrongful because malicious, and the malice is 
 proved by showing that they were done in execution of a 
 concerted design. In the singular case of Oregory v. Duke 
 of Brunswick {p) the action was in effect for hissing the 
 plaintiff off the stage of a theatre in pursuance of a 
 malicious conspiracy between the defendants. The Court 
 were of opinion that in point of law the conspiracy was 
 material only as evidence of malice, but that in point of 
 fact there was no other such evidence, and therefore the 
 jury wei-e rightly directed that without proof of it the 
 plaintiff's case must fail. 
 
 " It may be true, in point of law, that, on the declaration 
 as framed, one defendant might be convicted though the 
 other were acquitted; but whether, as a matter of fact, the 
 plaintiff could entitle himself to a verdict against one alone, 
 is a very different question. It is to be borne in mind that 
 the act of hissing in a public theatre is, prima facie, a law- 
 ful act ; and even if it should be conceded that such an 
 act, though done without concert with others, if done from 
 a malicious motive, might furnish a ground of action, yet 
 it would be very difficult to infer such a motive from the 
 insulated acts of one person unconnected with others. 
 Whether, on the facts capable of proof, such a case of 
 malice could be made out against one of the defendants, 
 
 (m) BowenL.J.lnS. C.inO.A. (1889), bination of many [persons]"; Lord 
 
 23 Q. B. Dlv. at p. 616. . Hanuen, '92, A. O. at p. 60. 
 
 (») Lord Field, '92, A. 0. at p. 52. (p) 6 Man. & 6r. 203, 953 (1844). The 
 
 (o) "There are some forms of injury defendants justified in a plea which has 
 
 which can only be effected by the com- the merit of being amusing. 
 
MALICIOUS HINDEANCES. 405 
 
 as, apart from any combination between the two, would" 
 warrant the expectation of a verdict against the one alone, 
 was for the consideration of the plaintiff's counsel; and, 
 when he thought proper to rest his case wholly on proof of 
 conspiracy, we think the judge was well warranted in 
 treating the case as one in which, unless the conspiracy 
 were established, there was no ground for saying that the 
 plaintiiff was entitled to a verdict ; and it would have been 
 unfair towards the defendants to submit it to the jury as a 
 case against one of the defendants to the exclusion of the 
 other, when the attention of their counsel had never been 
 called to that view of the case, nor had any opportunity 
 [been?] given them to advert to or to answer it. The 
 case proved was, in fact, a case of conspiracy, or it was no 
 case at all on which the jury could properly find a verdict 
 for the plaintiff" {q). 
 
 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 
 actipn (»•). 
 
 In 1889 the question was raised in a curious and impor- 
 tant case in this country. The material facts may, perhaps, 
 be fairly summarized, for the present purpose, as follows : — 
 A., B., and C. were the only persons engaged in a certain 
 foreign trade, and desired to keep the trade in their own 
 hands. Q. threatened, and in fact commenced, to compete 
 with them. A., B., and C. thereupon agreed to offer speci- 
 ally favourable terms to all customers who would agree to 
 deal with themselves to the exclusion of Q. and all other 
 competitors outside the combination. This action had the 
 effect of driving Q. out of the market in question, as it 
 was intended to do. It was held by the majority of the 
 
 \g) Per Coltman J., 6 Man. & Gr. at 104, and Blgelow L. C. 207. See Mr. 
 p. 959. Bigelow's note thereon, 
 
 (r) Hutchins v. Butchins (1845), 7 Hill, 
 
406 WRONGS OF FRAUD AND MALICE. 
 
 'Court of Appeal, and unanimously by the House of Lords, 
 that A., B., and C. had done nothing which would have 
 been unlawful if done by a single trader in his own sole 
 interest, and that their action did not become unlawful by 
 reason of being undertaken in concert by several persons 
 for a common interest. The agreement was in restraint of 
 trade, and could not have been enforced by any of the 
 parties if the others had refused to execute it, but that did 
 not make it punishable or wrongful (s). 
 
 It is possible, however, that an agreement of this kind 
 might in some cases be held to amount to an indictable 
 conspiracv on the ground of obvious and excessive public 
 inconvenience {t). At the same time, even if this be ad- 
 mitted, it would not be easy for a court to say beforehand 
 how far anv particular trade combination was likely to have 
 permanently mischievous results (w). 
 
 Malicious interference with one's occupation. There 
 may be other malicious injuries not capable of more speci- 
 fic definition " where a violent or malicious act is done to a 
 
 (s) Mogul Steamship Company v. Mc- quence, A. and B. are wrongdoers as 
 
 Gregor (1889), 23 Q. B. Div. 598, 58 L. J. against C. This is clearly negatived by 
 
 Q. B. 465 (diss. Lord Esher M. K.) ; in H. the decision of the House of Lords, see 
 
 L. '92, A. 0. 25,61 L. J. Q. B. 295. Lord the opinions of Lord Halsbury L. C. 
 
 Esber was apparently prepared to hold Lord Wataon, Lord Bramwell, and Lord 
 
 that whenever A. and B. make an agree- Hannen. 
 
 ment which, as between themselves, is (<) Bowen L J., 23 Q. B. Dlv. at p. 618. 
 
 void as in restraint of trade, and C. suf- (a) Fry L. J., 23 Q. B. Div. at p. 628. 
 
 fers damage as a proximate conse- 
 
 Malicious interference with one's occupation. To maliciously 
 interfere with the business of a person engaged in a lawful occupation, 
 with injurious results, constitutes a ground of action of trespass on the 
 case. Such interference may be by a single individual or by a number 
 of individuals conspiring together, and in the latter case the existence of 
 the conspiracy should be considered as aggravating the wrong and en- 
 hancing the damages. To maintain a suit for the malicious interference 
 with one's occupation it is necessary to prove: " (1) Intentional and wilful 
 acts (2) calculated to cause damage to the plaintiffs in their lawful 
 business (3) done with the unlawful purpose to cause such damage and 
 loss, without right or justifiable cause on the part of the defendant, 
 (which constitutes malice,) and (4) actual damages and loss resulting." 
 
MALICIOUS HINDRANCES. 407 
 
 t 
 
 man's occupation, profession, or way of getting a liveli- 
 hood; " as where the plaintiff is owner of a decoy for 
 catching wild fowl, and the defendant, without entering 
 
 "Walker v. Cronin, 107 Mass. 662. While this Is true, neither law nor 
 reason will protect a person from the effects of honest competition. If 
 disturbance or loss come as a result of competition, or the exercise of 
 like rights by others, it is damnum absque injuria, unless some superior 
 rights by contract or otherwise are interfered with. 
 
 " Freedom is the policy of this country. But freedom does not imply 
 a right in one person, either alone or in combination with others, to dis- 
 turb or annoy another, either directly or indirectly, in his lawful business 
 or occupation or to threaten him with annoyance or injury, for the sake 
 of compelling him to buy peace." Carew v. Rutherford, 106 Mass. 15.. 
 See Wilder v. McKee, 111 Pa. St. ?35; Walker v. Cronin, 107 Mass. 56i, 
 supra. And in the same case the court further said : " One of the aima- 
 of the common law has always been to protect every person against the 
 wrongful acts of every other person, whether committed alone or in 
 combination with others; and It has provided an action for injuries done 
 by disturbing a person in the enjoyment of asy right or privilege which 
 he has. Many Illustrations of this doctrine are given in Bac. Ab. Actions 
 on the Case, F., among which are the following: ' If A. being a mason, 
 and using to sell stones, is possessed of a certain stone-pit, and B. in- 
 tending to discredit it and deprive him of the profits of the said mine, 
 imposes so great threats upon his workmen, and disturbs all comers, 
 threatening to maim and vex them with suits if they buy any stones, so 
 that some desist from working and others from buying, A. shall have an 
 action upon the case against B., from the profit of his mine thereby 
 injured.' So if a man menaces my tenants at will of life and member, 
 per quod they depart from their tenures, an action upon the case lies 
 against him. 'If a man discharges guns near my decoy-pond with design 
 to damnify me by frightening away the wild fowl, resorting thereto and 
 the wild fowl are thereby frightened away and I am damnified, an action 
 on the case lies against him.' ' We have no doubt that a conspiracy 
 against a mechanic who is under a necessity of employing workmen in 
 order to carry on his business to obtain a sum of money from him; 
 which he is under no legal liability to pay, by inducing his workmen to 
 leave him and by deterring others from entering into his employment, or 
 by threatening to do this, so that he is induced to pay the money 
 deihanded under a reasonable apprehension that he cannot carry on his 
 business without yielding to the illegal demand, is an illegal, if not a 
 criminal conspiracy; that the acts done under it are illegal; and that the 
 money thus obtained may be recovered back, and, if the parties succeed 
 in injuring his business, they are liable to pay all the damage thus done 
 him.' " Id. 1. Followed in Snow v. Wheeler, 113 Mass. 186. See Sherry 
 V. Perkins, 147 Id. 212; 17 N. E. Rep. 307. 
 
408 WRONGS Of FRAUD AND MALICE. , 
 
 on the plaintiff's land, wilfully fires off guns near to the 
 decoy, and frightens wild fowl away from it (x). Not 
 many examples of the kind are to be found, and this is 
 natural ; for they have to be sought in a kind of obscure 
 middle region where the acts complained of are neither 
 wrongful in themselves as amounting to trespass against 
 the plaintiff or some third person (y), nuisance (a), 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 pursuit of a man's lawful occupation 
 or the ordinary use of his property (a). Mere competition 
 carried on for the purpose of gain, not out of actual malice, 
 and not by unlawful means, such as molestation or intimi- 
 dation, is not actionable, even though it be intended to 
 drive a rival trader out of the field, and produce that re- 
 sult (6). " The policy of our law, as at present declared 
 by the legislature, is against all fetters on combination and 
 competition unaccompanied by violence or fraud or other 
 like injurious acts " (c). Beyond generally forbidding the 
 use of means unlawful in themselves, the law does not im- 
 pose any restriction upon competition by one trader with 
 another with the sole view of benefiting himself. A differ- 
 ent question would arise if there were evidence of an inten- 
 tion on the defendant's part to injure the plaintiff without 
 benefiting himself. " Thus, if several persons agree' not to 
 deal at all with a particular individual, as this could not, 
 under ordinary circumstances, benefit the persons so agree- 
 ing" (d). Driving a public performer off the stage by 
 
 («) Carrimgton v. Taylor (1809), U (s) Op, J66o«som v. Pea< (1865), 3 H. & 
 Bast, 571, following Keeble v. Hickeringai C. 644, 34 1.. J. Ex. 118. 
 (1705), ib. 573 in notis, where see Holt's (o)'See p. 135, above, 
 indgment. And see Lord Field's opin- (6) Mogul Steamship Company v. Me- 
 lon in Mogul Steamship Company v, Cregor, above. 
 McGregor, '92, A. 0. 25, 51 . (c) Fry L. J., 23 Q. B. Dlv. at p. 628. 
 
 (j/) Tarleton v. 3IcGawley, Feake, 270, (d) Lord Hannen tn MogiU Steamship 
 
 3 R. R. 689: the defendant's act in firing Company v. McGregor, above, 
 at negroes to prevent them from trading 
 with the plaintiff's ship was of course 
 nnlawf nl per se. 
 
MALICIOUS HINDRANCES. 409 
 
 marks of disapprpbatiou which proceed not from an honest 
 opinion of the demerits of his performance or person, but 
 from private enmity, is, as we have just seen, a possible 
 but doubtful instance of this sort of wrong (e). Holt put 
 the case of a schoolmaster frightening away children from 
 attendance at a rival school (f). 
 
 Contract. It is really on the same principle that an 
 action has been held to lie for maliciously (that is, with 
 the design of injurtng the plaintiff or gaining some advan- 
 ce) Gregory v. Vu&e of BrunxuAclc, (/) Keehle v. Hickeringill, note (a;) 
 supra, p. 287. last pnge. ' 
 
 Malicious Interference 'wltb one's contract. It is not a legal wrong 
 to peaceably persuade one not to enter the employment of another ; but to 
 maliciously interfere with a contract of service whereby any of the 
 parties thereto are damnified is actionable. " On the other hand it has 
 been decided that a mere conspiracy to break a contract for the delivery 
 of property cannot constitute a tort, even though the contract be broken 
 In pursuance of it; the ground of it being that the party to the contract 
 might of its own violation have broken his promise without being liable 
 as for a wrong, and ' that an act which, if done by one alone, constitutes 
 no ground of an action of the case, cannot be made the ground of such 
 action by alleging it to have been done by and through a conspiracy of 
 several. The quality of the act, and the nature of the injury inflicted by 
 it, must determine the question whether the action will lie.' It is diflS- 
 cult to understand, however, why a conspiracy to deprive one of labor 
 contracted for can be any different in nature or damaging quality from a 
 conspiracy to deprive him of property bargained for or of anything else 
 of value. There is no peculiar sacredness to the right to service over 
 any other right, and no good reason can be suggested for protecting it 
 differently." Cooley on Torts, p. 330. See Wellington v. Small, 3 
 Cush. 145; Van Horn v. Van Horn, 52 N. J. L. 287; Webber v. Barry, 66 
 Mich. 127; 83 N. W. Eep. 289; Eogers v. Evarts, 17 N. Y. S. Rep. 264. 
 
 Trades unions. Where the object of labor unions, or organizations of 
 workmen, is to discuss and agree upon their time of service, place of 
 employment, price of wages, and other provisions for their mutual pro- 
 tection and benefit, they are lawful. But when they secretly combine 
 and conspire to intimidate by threats and coerce others to abandon their 
 employment or desist from seeking employment where they would other- 
 wise be employed, and thus maliciously interfere with the business and 
 with the contracts of employes, they are jointly and'Severally liable for 
 the injury done b; them. "The labor and skill of the workmen, be it 
 
410 WRONGS OF FRAUD AND MALICE. 
 
 tage at his expense ) procuring a third person to break his 
 contract with the plaintiff, and thereby causing damage to 
 the plaintiff (gr). The precise extent and bearing of the 
 doctrine are discussed in the final chapter of this book with 
 reference to the difficulties that have been felt about it, and 
 1 expressed in dissenting judgments and elsewhere. Those 
 difficulties (I submit and shall in that place endeavour to 
 prove) either disappear 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. 
 
 / Op franchise. Generally speaking, every wilful inter- 
 
 / ference with the exercise of a franchise is actionable with- 
 
 ! out regard to the defendant's act being done in good faith, by 
 
 \ reason of a mistaken notion of duty or claim of right, or 
 
 ^eing consciously wrongful. "If a man hath a franchise 
 
 (g) iMmUy v. Gye (1853), 2 E. & B. 216, 22 L. J. Q. B. 463; Bowen v. Hall (1S81), 6 
 Q. B. Piv. 333, 50 L. J. Q. B. 305. 
 
 Of high or low degree, the plant of the manufacturer, the equipment of 
 the farmer, the Investment of the commerce are in equal sense prop- 
 erty." If men by acts of violence destroy either, they are guilty of 
 crime. The anathemas of a secret organization of men combined for .the 
 , purpose of controlling the industry of others by a species of intimidation 
 that works upon the mind rather than the body, are quite as dangerous, 
 and generally altogether more effective, than acts of actual violence. 
 And while such conspiracies may give to the individual directly affected 
 by them a private right of action for damages, they at the same time lay 
 the basis for an indictment on the ground that the State itself is directly 
 concerned in the promotion of all legitimate industries and the devolop- 
 ment of all of its resources, and owes the duty of protection to its 
 citizens engaged in the exercise of the callings. State v. Stewart, 59 Vt. 
 289. See the Master Stevedores' Assoc. ». Walsh, 2 Daly, 1; State ». 
 Donaldson, 32 N. J. L. 151; The People u. Fisher, 14 Wend. 1; State v. 
 Burnham, 15 N. H. 404; Commonwealth v. Hunt, 4 Mete. IH; Sweeny 
 V. Torrence, 11 Pa. Co. Ct. E. 497; Mayer v. Association, 47 N. J. Eq. 
 519; 20 At. Rep. 492; Casey u. Cincinnati Typo. Union, 45 Fed. Rep. 135. 
 But one not injured in his business by a combination of dealers can- 
 not complain of the combination as unlawful. Fairbanis v. Newton, 
 50 Wis. 628. 
 
MALICIOUS HINDEANCES. 411 
 
 and is hindered in the enjoyment thereof, an action doth 
 lie, which is an action upon the case " (k). But persons 
 may as public oflScers be in a quasi-judicial position in which 
 they will not be liable for an honest though mistaken exer- 
 cise of discretion in rejecting a vote or the like, but will be 
 liable for a wilful and conscious, and in that sense malicious, 
 denial of right («). In such cases the wrong, if any, 
 belongs to the class we have just been considering. 
 
 Maintenance. The wrong of maintenance, or aiding a 
 party in litigation without either interest in the suit, or 
 lawful cause of kindred, affection, or charity for aiding 
 him, is akin to malicious prosecution and other abuses of 
 legal process ; but the ground of it is not so much an in- 
 dependent 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- 
 meanor " {k). Hence it seems that a corporation cannot 
 be guilty of maintenance (k). Actions for maintenance 
 are in modern times rare though possible (I) ; and the de- 
 cision of the Court of Appeal that mere charity, with or 
 without reasonable ground, is an excuse for maintaining 
 the suit of a stranger {m), does not tend to encourage 
 them. 
 
 (A) Holt C. J. in Ashby v. White at p. (ft) Lord Selborde, Metrop. Bank v. 
 
 13 of the special report first printed in PooUy (1885), 10 App. Ca. 210, 218, 54 L. J. 
 
 1837. The action was on the case merely Q. B, 419. 
 
 because trespass would not lie for the (J) Bradlaugh v. Newdegate (1883), 11 
 
 infringement of an incorporeal right of Q. B. D. 1, 52 L. J. Q. B. 454. 
 
 that kind. (ire) Barris v. Brisco (1886), 1" Q. B. 
 
 (t) Tozer y. ChUd (1857), Ex. Ch. 7 E. Div. 604, 55 1,. J. Q. B. 423. 
 & B. 377, 26 L. J. Q. B. 1.51. 
 
412 
 
 CHAPTER IX. 
 
 ■WEONGS TO POSSESSION AND PROPERTY. 
 
 I. — Duties regarding Property generally. 
 
 Absolute duty to respect others' property. Every kind 
 of intermeddling witli anything which is the subject of 
 property is a wrong unless it is either authorized by some 
 person entitled to deal with the thing in that particular 
 way, or justified by authority of law, or (in some cases but 
 by no means generally) excusable on the ground that it is 
 done under a reasonable though mistaken supposition of 
 lawful title or authority. Broadly speaking, we touch 
 the property of others at our peril, and honest mistake in 
 
 Absolute duty to respecst otliers' property. The general proposi- 
 tion is affirmed in Amick v. O'Hara, 6 Blackf. 258; Cate v. Cate, 44 N. H. 
 211; Bruck v. Carter, 32 N. J; L. 654; Dexter v. Cole, 6 Wig. 319; Magee 
 «. Tappan, 23 Cal. 306; Hobart v. Haggett, 12 Me. 67; Luttrell v. Hazen, 
 3 Sneed (Tenn.), 20; Brown v. Stackhouse, 156 Pa. St. 682; 26 At. Rep. 
 669; 32 W. N. C. 407. 
 
 Thus, trespass lies against one who cuts or removes timber without 
 lawful authority from the owner, though the trespasser believed he had 
 proper authority from the actual owner. Higginson v. York, 5 Mass. 
 341; Allison «. Little, 85 Ala. 612; Loevenberg v. Rosenthal; 18 Greg. 
 178; 22 Pac. Rep. 601. An action lies for a trespass committed over 
 a boundary line by mistake. Blaen Avon Coal Co. o. McCulloch, 59 Md. 
 403. Although the plaintiff's mistake had led the defendant to commit 
 the trespass. Pearson v. Inlow. Advice of counsel will not justify a 
 trespass on land. Watson v. State, 63 Ala. 19. Nor will the desire of 
 destroying an animal /erce naturce. Glenn v. Kays, 1 111. App. 479. 
 
 A person who aids a grantee in a bill of sale in the removal of the 
 property is liable where it turns out that the bill of sale was in fact 
 a mortgage. "Wallard^.o. Wortham, 84 111. 446. See Flanders ». Colby, 
 .28 N. H. 34. 
 
 There is room for distinction, however, where not only the result of 
 
AUTHORITY AND TITLE. 413 
 
 acting for our own interest (a), or even an honest intention 
 to act for the benefit of the true owner (6), will avail us 
 nothing if we transgress. 
 
 Title, jnstiflcation, excuse. A man may be entitled in 
 divers ways to deal with property moveable or immoveable, 
 and within a wider or narrower range. He may be an 
 owner in possession, with indefinite rights of use and 
 dominion, free to give or to sell, nay to waste lauds or 
 destroy chattels if such be his pleasure. He may be a 
 possessor with rights either determined as to length of 
 time, or undetermined though determinable, and of an ex- 
 tent which may vary from being hardly distinguishable 
 from full dominion to being strictly limited to a specific 
 purpose. 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 exclusion of all other per- 
 sons besides the owner or possessor, or concurrently with 
 other persons, without himself being either owner or pos- 
 sessor. The definition of such rights belongs to that part 
 of the law of property which deals with easements and 
 profits. Again, he may be authorized by law, for the exe- 
 cution of justice or for purposes of public safety and con- 
 venience, or under exceptional conditions for the true 
 owner's benefit, to interfere with prppe^ty to which he has 
 no title and does not make any claim. We have seen some- 
 
 (a) BoUims v. Fowler (1875), L. R. 7 H. 1 Ex. D. 85, i5 L. J. Ex. 186: in trover, 
 L. 757, a L. J. Q. B. 169. BioH v. Bott (1874), L. E. 9 Ex. 86, i3 L. 
 
 (6) In trespass. Kirk v. Gregory (1876), J. Ex. 81. 
 
 the act, bnt, also the act itself was not Intended. Thus, a person driv- 
 ing cattle along the highway is not liable for the conversion of cattle 
 joining his drove without his notice."i Young v. Vaughan, I Houst. 331; 
 Brooks V. Olmstead, 17 Pa. St. 24. Nor is such person liable where 
 cattle escape from the drove into plaintiff's property. Eightmire v. 
 Shephard, 59 Hun, 620. But see Guille v. Swan, 19 Johns. 381, supra, 34. 
 
414 WBONQS TO POSSESSION AND PKOPEKTy. 
 
 what of this in the chapter of " General Exception^." 
 Again, he may be justified by a consent of the owner or 
 possessor which does not give him any interest in the 
 property, but merely excuses an act, or a series of acts, 
 that otherwise would be wrongful. Such consent is known 
 as a licence. 
 
 Title dependent on contract. Title to property, and 
 authority to deal with property in specified ways, are com- 
 monly conferred by contract or in pursuance of some con- 
 tract. Thus it oftentimes depends on the existence or on 
 the true construction of a contract whether a right of prop- 
 erty exists, or what is the extent of rights admitted to 
 exist. A man obtains goods by fraud and sells them to 
 another purchaser )vho buys in good faith, reasonably sup- 
 posing that he is dealing with the true owner. Tlie 
 fraudulent re-seller may have made a contract which 
 the original seller could have set aside, as against him, 
 
 Title dependent on contract. Goods feloniously obtained may be 
 recovered from a bona fide purchaser. Bobinson v. Dauchy, 3 Barb. 20; 
 Robinson v. Skipworth, 23 Ind. 311 ; Basset v. Green, 2 Duv. 560; Brown- 
 ing V. Magill, 2 Har. & J. 308. But this rule does not apply where the 
 goods are obtained by a felony of statutory creation as distinguished 
 from common law felonies. Benedict v. 'Williams, 48 Hun, 123. 
 
 Where A. hires a horse by giving a worthless check and then sells him 
 to B., B. cannot retain the horse. Dodd v. Arnold, 28 Tex. 97. 
 
 The doctrine of market overt as known in England is not recognized in 
 this country. Hardy v. Metzgar, 2 Yeates, 347; Leckey v. McDermott, 8 
 Serg. & E. 580; Hosack d. Weaver, 1 Yeates, 478; Rowland v. Gundy, 1 
 Ohio, 263; Wheelwright v. DePeyster, 1 Johns. 471; Dame v. Baldwin, 8 
 Mass. 518; Griffith v. Fowler, 18 Vt. 390. 
 
 One acquiring property through fraud derives no title as against the 
 Injured party. Wheaton v. Baker, 14 Barb. 594 ; Mowey v. Walsh, 8 Cow. 
 238. But mere fraud in a sale gives no right to prevent an innocent 
 vendee from taking away the property after delivery. McCarty v. 
 Vickery, 12 Johns. 348. However, where there is an entire absence ol 
 title in the seller, good faith will not protect the purchaser. Church v. 
 Mellville, 17 Oreg. 413 ; 21 Pac. Rep. 387. See ante, p. 257. 
 
 Taking possession of goods under a contract which the taker of the 
 goods never intended to carry out is as much a trespass as a forcible 
 seizure. Butler v. Collins, 12 Cal. 457. 
 
AUTHORITY AND TITLE. 4l5 
 
 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 circumstances of the fraud may have been such 
 that there was no true consent on the part of the first 
 owner, no contract at all, and no right of property what- 
 ever, 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 act- 
 ing 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). 
 
 Exceptional protection of certain dealings in good 
 faith. Acts of persons dealing in good faith with an 
 apparent owner may be, and have been, protected in vari- 
 ous ways and to a varying extent by different systems of 
 law. The purchaser from an apparent owner may acquire, 
 as under the common-law rule of sales in marijet overt, a 
 better title than his vendor had; or, by an extension in the 
 same line, the dealings of apparently authorized agents in 
 the way of sale or pledge may, for the security of com- 
 merce, have a special validity conferred on them, as under 
 our Factors Act (e); or one who has innocently dealt with 
 goods which he is now unable to produce or restore spe- 
 cifically may be held personally excused, saving the true 
 owner's liberty to retake the goods if he can find them, and 
 subject to the remedies over, if any, which may be avail- 
 able under a contract of sale or a warranty for the person 
 dispossessed by the true owner. Excuse of this kind is 
 
 (c) Hollins V. Fowler (1876), L. E. 7 (.d) See Pitcher v. Itawlins (1871), L. 
 
 H. L. 767, a L. J. Q. B. 169; Candy v. E. 7 Ch. 259, 41 L. J. Ch. 485. 
 lAndaay (1878), 3 App. Ca. 459, 47 L. J. Q. (c) Consolidated by the Factors Act, 
 
 B. 481. 1889, 53 & 53 Vict. c. 45. 
 
416 WKONGS TO POSSESSION AND PEOPERTY. 
 
 however rarely admitted, though much the same result 
 may sometimes be arrived at on special technical grounds. 
 
 The rights and remedies known to the common law 
 are possessory. 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 determining 
 what amounts to a wrong to property, and who is the per- 
 son 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 
 a habit of thought which, strange as it may now seem to 
 us, found the utmost difficulty in conceiving rights of 
 property as having full existence or being capable of 
 transfer and succession 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 {/)._ An owner in possession was 
 protected against disturbance, but ther rights of an owner 
 out of possession were obscure and weak. To this day it 
 continues so with regard to chattels. For many purposes 
 the " true owner" of goods is the person, and only the 
 person, entitled to immediate possession. The term is a 
 short and convenient one, and may be used without 
 scruple, but on condition of being rightly understood. 
 Kegularly the common law protects ownership only 
 through possessory rights and remedies. The reversion or 
 reversionary interest of the freeholder or general owner out 
 . of possession is indeed well known to our authorities, and 
 by conveyancers it is regarded as a present estate or inte- 
 rest. But when it has to be defended in a court of com- 
 
 (/) See Mi. F. W. MaiUand's ar- il. 481, where dlvera profitable compar- 
 tioles on " The Seisin of Chattels " and isons of the rules concerning real and 
 " The Mystery of Seisin," L. Q. K. i. 324, personal property will be found. 
 
^OSSESSIOK AND OWNEESHIF. 417 
 
 mon law, the forms of action treat it rather as the shadow 
 cast before by 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 posses- 
 sion has all but swallowed up ownership ; and the rights of 
 apossessor, or one entitled to possess, have all but monopo- 
 lized the very name of property. There is a common phrase 
 in our books that possession is prima facie evidence of title. 
 It would be less intelligible at first sight,, but not less cor- 
 rect, to say that in the developed system of common law 
 pleading and procedure, as it existed down to the middle of 
 this century, proof of title was material on^y as evidence 
 of a right to possess. And it must be remembered that 
 although forms of action are no longer with us, causes of 
 action are what they were, and cases may still occur where 
 it is needful to go back to the vanished form as the witness 
 and measure of subsisting rights. The sweeping protection 
 given to rights of property at this day is made up by- a 
 number of theoretically distinct causes of action. The dis- 
 turbed possessor had his action of trespass (in some special 
 cases replevin ) ; if at the time of the wrong done the per- 
 son entitled to possess was not in actual legal possession, 
 his remedy was detinue^ or, in the developed system, 
 trover. An owner who had neither possession nor the 
 immediate right to possession could redress himself by a spe- 
 cial action on the case, which did not acquire any technical 
 name. 
 
 Possession and detention. Notwithstanding first ap- 
 pearances, then, the common law has a theory of possession, 
 and a highly elaborated one. To discuss it fully would not 
 be apppropriate here ig) ; but we have to bear in mind that 
 it must be known who is in legal possession of any given 
 
 (g) See " An Essay on Possession In K. S. Wright and the present writer 
 the Common Law " by Mr. (now Justice) (Oxford : Clarendon Press, 1888). 
 
 27 
 
418 WRONGS TO POSSESSION AND PROPERTY. 
 
 subject of property , and who is 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 possession does not neces- 
 sarily coincide either with actual physical control or the 
 i present power thereof (the "detention" of Continental 
 terminology), or with the right to possess (constantly 
 called " property " in our books) ; and it need not have a 
 rjghtful 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 
 carry home. Here B.'s servant has physical possession, 
 better named custody or detention, but neither legal posses- 
 sion (h) nor the right to possess; B. has legal and rightful 
 possession, and the right to possess as against every one but 
 A. ; while A. has not possession, but has a right to possess 
 which he can make absolute at any moment by determining 
 the bailment to B., and which the law regards for many 
 purposes as if it were already absolute. As to an actual 
 legal possession ( besides and beyond mere detention ) being 
 acquired by wrong, the wrongful change of possession was 
 the very substance of disseisin as to land, and is still the 
 very substance of trespass by taking and carrying away 
 (de bonis asportatis), an3 as such it was and is a neces- 
 sary goods condition of the^^l^ncg of larceny at common 
 law. 
 
 The common law, when it must choose between denying 
 legal possession to the person apparently in possession, and 
 attributing it to a wrong-doer, generally prefers the latter 
 course. In Koman law there is no such general tendency, 
 though the results are often similar (i). 
 
 (ft) Yet It Is not certain that he conld lated from time to time, and has never 
 
 not maintain trespass against a stranger ; been defined as a whole, 
 see Moore v. SoUmon, 2 B. & Ad. 817. (i) Op. Holland, " Elements of Juris- 
 
 The law about the castody of servants prudence," 5th ed. pp. 166-171. 
 and persons in a like position has vacil- 
 
CUSTODY AND POSSESSION. 419 
 
 Trespass and conversion. Trespass is the wrongful 
 distutbance of another person's possession of land (_;") or 
 goods. Therefore it cannot be committed by a person who 
 is himself in possession; though in certain exceptional 
 cases a dispunishable or even a rightful possessor of goods 
 may by his own act, during a continuous physical control, 
 make himself a mere trespasser. But a possessor may do 
 wrong in other ways. He may commit waste as to the 
 land he holds, ^or he may become liable to an action of 
 ejectment by holding over after his title or interest is deter- 
 mined. As to goods he may detain them without right 
 after it has become his duty to return them, or he may 
 convert them to his own use, a phrase of which the scope 
 has been greatly extended in the modern law. Thus we 
 have two kinds of duty, namely to refrain from meddling 
 with what is lawfully possessed by another, and to refrain 
 from abusing possession which 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 com- 
 mon law, their distinct and appropriate remedies. But a 
 strict observance of these distinctions in practice would 
 have led to intolerable results, and a working margin was 
 given by beneficent fictions which (like most indirect and 
 gradual reforms) extended the usefulness of the law at the 
 cost of making it intricate and difficult to understand. On 
 the one hand the remedies of an actual possessor were 
 freely accorded to persons who had only the right to 
 possess /A;); on the other hand the person wronged was 
 constantly allowed at his option to proceed against a mere 
 
 0') Formerly it was said tliat trespass note that " constructive possession," as 
 
 to land was a disturbance not amonnting used in oar books, includes (i.) posses - 
 
 to disseisin, tbougli it might be " vicina sion exercised through a servant or 
 
 disseielnae," which is explained by " si licensee; (II.) possession conferred by 
 
 ad commodum nti non possit." Bracton, law, in certain cases, e. g. on an executor, 
 
 fo. 217 a. I do not think this distinction Independently of any physical apprc- 
 
 was regarded in any later period, or was hension or transfer; (iii.) an immediate 
 
 ever attempted as to goods. right to possess, which is distinct from 
 
 (Jc) See Smith v. Miliea, 1 T. R. 180, and actual possession. 
 
420 WEONGS TO POSSESSION AND PEOPEETT. 
 
 trespasser as if the trespasser had only abused a lawful or 
 at any rate excusable possession. 
 
 Alternative remedies. In the later history of common 
 law pleading trespass and conversion became largely though 
 not wholly interchangeable. Detinue, the older form of 
 action for the recovery of chattels, was not abolished, but 
 it was generally preferable to treat the detention as a con- 
 version and sue in trover (I), so that trover practically . 
 superseded detinue, as the writ of right and the various 
 assizes, the older and once the only proper remedies whereby 
 
 (0 BlaciBt. Hi. 152. 
 
 Alternative remedies. The gist of the action of detinae ia the con- 
 tinuing nature of the act of detainer, whereas, trespass and trover are 
 torts f onnded on an act which becomes complete by a single performance. 
 Wittick V. Trann, 27 Ala. 563, 570; Harris v. Hillman, 26 Ala. 38; Charles 
 V. Elliott, 4 Dev. &B. 468; Jennings v. Gibson, 1 Miss. 234; Haley v. 
 Bowan, 5 verg. 301. 
 
 Thus, detinue cannot be maintained after the destruction of the chattel 
 in dispute. Lindsey o. Perry, 1 Ala. 203 ; Caldwell v. Fenwlck, 2 Dana, 
 232. Nor has plaintiff In detinue the right to elect to take damages 
 instead of the specific property when tendered by defendant. Bobinson 
 V. Bichards, 45 Ala. 354. 
 
 That the distinction between trespass and trover is sometimes of prac- 
 tical importance even under the codes, is shown in Grafton v. Carmichaeli 
 (48 Wis. 660) ." This case is an action arising out of the seizure of 
 certain goods of the plaintifE by the sheriff under the direction of the 
 deffindant. The petition charged the defendant with the toMng of certain 
 property of the plaintiff wrongfully and converting the same to his own 
 use. The original taking under the attachment writ by the sheriff was 
 valid bat the sale thereunder was invalid by reason of certain omissions. 
 The plaintiff's right to recover hinged upon whether his action was in 
 trespass or trover — i£ the former, recovery was barred, as the original 
 taking Dy the defendant was under a valid writ — if the latter, the plaint- 
 iff was entitled to recover for the actual conversion suffered under the 
 defendant's illegal sale. 
 
 In the United States the action of replevin, called claim and delivery 
 in some of the code States, has come to be the general remedy to deter- 
 mine the right of possession to specific chattels, its practical use in this 
 respect in England being limited to cases of distress for rent or for cattle 
 taken damage feasant. 
 
WHAT IS TRESPASS. 421 
 
 a freeholder could recover possessioQ of the land, were 
 superseded by ejectment, a remedy at first introduced 
 merely for the protection of leasehold interests. With all 
 their artificial extensions these forms of action did not 
 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 circumstances may still occur in which it is 
 doubtful whether an action lies without proof of actuaj 
 damage, or, assigning that the plaintiff is entitled to judg- 
 ment, whether that judgment shall be for the value of the 
 goods wrongfully dealt with or only for his actual damage, 
 which may be a nominal sum. Under such conditions we 
 have to go back to the old forms and see what the appro- 
 priate action would have been. This is not a desirable state 
 of the law {m), but while it exists we must take account 
 of it. 
 
 II. — Trespass. 
 
 What sball be said a trespass. Trespass may be com- 
 mitted by various kinds of acts, of which the most obvious 
 are entry on another's land (trespass quare clausum 
 fregit), and taking another's goods (trespass de bonis 
 asportatis) (n). Notwithstanding that trespasses punish- 
 able 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 transgression of a visible boundary, nor even 
 an unlawful intention, is necessary to constitute an action- 
 able trespass. It is likewise immaterial, in strictness of 
 law, whether there be any actual damage or not. " Every 
 invasion of private property, be it ever so minute, is a 
 
 (m) See per Thesiger L. J., 4 Ex. Div. qu. cl.fr. simply, bnt trespass amounting 
 
 199. to a disseisin of the freeholder or ouster 
 
 (n) The exact parallel to trespass de of the tenant for years or other interest 
 
 bonis asportatis Is of course not trespass not freehold. 
 
422 WKONGS TO POSSESSION AND PROPERTY. 
 
 trespass " (o). 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 common lands, not being 
 in exercise of some particular right, are in a better position. 
 It may be that, where the public enjoyment of such lands 
 for sporting or other recreation is notorious, for example 
 on Dartmoor (p), sl licence (^as to which more presently) 
 would be implied. Oftentimes warnings or requests are 
 addressed to the public to^ abstain from going on some 
 specified part of open land or private ways, or from doing 
 injurious acts. In such cases there seems to be a general 
 licence to use the land or ways in conformity with the 
 owner's will thus expressed. But even so, persons using 
 the land are no moreNthan " bare licensees," and their 
 right is of the slenderest. 
 
 (o) Entick T. Carrington, 19 St. Tr. (p) As a matter of fact, the Dartmoor 
 
 1066. " Property " here, as constantly in hnnt has an express licence from the 
 
 oar books, really means possession or a Dnchy of Cornwall, 
 right to possession. 
 
 What shaU be said a trespass. Any unlawful interference with the 
 possession of the property of others, whether with or without force, is a 
 trespass. Dexter v. Cole, 6 Wis. 319; Norvell v. Gray, 1 Swan, 96; 
 Brown v. Perkins, 1 Allen, 89; Hatch v. Donnell, 74 Me. 163; Newkirk v. 
 Sabler, 9 Barb. 652; Malrs v. Real Estate Assoc, 89 N. Y. 498; Alexander 
 V. Hard, 64 N. Y. 228; Halligan v. Chicago & R. I. R. Co., 15 111. 558; 
 Gunsolus v.'Loimet, 34 Wis. 630; 13 N. W. Rep. 62; Moore v. Perry, 
 61 Mo. 174; Bascom v. Dempsey, 143 Mass. 409 ; Chandler o. Walker, 21 
 N. H. 282. 
 
 Trespass lies though the only damage he the treading down of turf. 
 Dougherty v. Stepp, 1 Dev. & B. 371. Or, even if no grass or herbage 
 be in existence on the close. Nensorn v. Anderson, 2 Ired. 42. See, 
 ante, pp. 9, 10. 
 
 Mere words do not constitute a trespass. Wheeler v. Moore, Wright, 
 408. But one who stops on the sidewalk in front of a house to abuse its 
 occupant is a trespasser. Adams v. Rivers, 11 Barb. 390. 
 
 Sign painting oa a wall of a house though with the tenant's consent is 
 an interference with the owner's possession. Devlin v. Snellenberg, 132 
 Pa. St. 186; 18 At. Rep. 1119. But the mere use of gas after notice of 
 arrears is no trespass. Alexander Mining Co. v. Painter, 28 N. E. Rep. 
 118. 
 
WHAT IS TRESPASS. 423 
 
 Quaere concerning balloons. It has been doubted 
 whether it is a trespass to pass over land without touching 
 the soil, as one may in a 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 giui on his 
 own land so that "the shot fall on his neighbour's land^ (^q). 
 Fifty years later Lord Blackburn inclined to think 
 differently (r), and his opinion seems the better. Clearly 
 there can be a wrongful entry on land below the surfaces, 
 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 improbability 
 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 theory. Tres- 
 passes clearly devoid of legal excuse are committed every 
 day on the surface itself, and yet are of so harmless a kind 
 that no reasonable occupier would or does take any notice 
 
 (3) Pickering v. Xudd (1815), 4 Camp. United Telephone Co. (1884), 13 Q. B. Div. 
 
 219, 221. 904, 927, 53 L. J. Q. B. 449. It may be 
 
 (r) ICenyon y. Sort (1865), 6 B. & S. 249, otherwise, as In that case, where statu- 
 
 252, 34 L. J. M. C. 87 ; and see per Fry L. tory interests in land are conferred for 
 
 J. in Wandsworth Board of Works v. special purposes. 
 
 Quaere concerning balloons. Vide Guille v. Swan, 19 Johns. 381, 
 sapra, 34. 
 
 In Ilnnter o. Farren C127 Mass. 481), plaintiff had been driven from 
 his honse and land by defendant blasting on the highway, thereby 
 caasing rocks to fly over plaintifi's land. Piaintifl settled with defend- 
 ant for the actual damage caused to bis property by rocks striking it; 
 but it was held, that the settlement was nu bar to the trespass of the 
 rocks which flew over his land and the damage resulting from loss of 
 business. 
 
424 WEONGS TO POSSESSION AND PEOPEETY. 
 
 of them. Then oue can hardly doubt that it might be a 
 nuisance, apart from any definite damage, to keep a balloon 
 hovering over another man's land : but if it is not a tres- 
 pass in law to have the balloon there at all, one does not 
 see how a continuing trespass. is to be committed by keep- 
 ing 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 incident 
 in a distinct trespass to person or property. The doctrine 
 suggested by Lord EUenborough's dictum, if generally 
 accepted and acted on, would so far be for the benefit of 
 the public service that the existence of a right of " inno- 
 cent 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 not 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 subject (s). 
 
 Trespass to goods. Trespass to goods may be committed 
 by taking possession of them, or by any other act " in itself 
 immediately injurious " to the goods in respect of the pos- 
 
 (i) Chap. XII. below. 
 
 Trespass to goods. Following -what has just been said under vthat 
 SHAix BE SAID A TRESPASS, it is a rule that a trespass to personal prop- 
 erty is an injury to the right of possession. And the fact that the right 
 was infringed without wrongful intent, or by accident or mistake, is no 
 excuse. Dexter v. Cole, 6 Wis. 320; Lunt v. Brown, 13 Me. 236; Staples 
 V. Smith, 48 Me. 470; Ely o. Ehle, 3 N. Y. 507; Billingsly v. White, 59 Pa. 
 St, 469; Haythorn v. Kushforth, 19 If. J. L. 160; Mugridge v. Eveleth, 9 
 
WHAT IS TRESPASS. 425 
 
 sessor's interest {t), as by killiDg (u), beating (03), or 
 chasing (y) animals, or defacing a work of art. Where 
 the possession is changed the trespass is an asportation 
 (from the old form of pleading, cepit et asportavit for in- 
 animate chattels, abduxit for animals), and may amount to 
 the offence of theft. Other trespasses 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 the trespass 
 is felonious has been considered in an earlier chapter (^). 
 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 disposses- 
 sion (a) 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 (6). And cases 
 are conceivable in which the power of treating a mere 
 unauthorized touching as a trespass might be salutary and 
 necessary, as where valuable objects are exhibited in places 
 either public or open to a large class of persons. In the 
 old precedents trespass to goods hardly occurs except in 
 conjunction with trespass to land (c). 
 
 ( t ) Blackst. iil. 153. 90 L. so for shearing the plaintiff',, 
 
 (u) Wright v. Samscot, 1 Saimd. 83, 1 sheep, ib. 87 G. 
 Wms. Sannd. 108 (trespass for killing a (z) F. 184, above, 
 
 mastiff). (a) See Gaylard v. Morris (1849), 3Ex. 
 
 (a;) Darid v. Sesaon, 3 T. B. 37 (trespass 695, 18 L. J. Ex. 297. 
 vi et armis for beating the plaintiff's fjb) " Scratching the panel of a car- 
 dog), riage would be a trespass," Alderson B. 
 
 (y) A form of writ is given for chasing in Fouldes v. Willougliby, 8 M. & W. 549. 
 the plaintiff's sheep with dogs, F. N. B. (c) See F. N. B. 86-88, passim 
 
 Mete. 233; Stanley v. Gay lord, 1 Cush. 636: White v. Brantley, 37 Ala. 
 4:30; Hobart v. Hagget, 12 Me. 67; Gilman v. Emery, SI Me. 460; Bruch 
 V. Carter, 32 N. J. L. 554; Dnfour v. Anderson, 95 Ind. 302; Burgess u. 
 Grafeam, 18 Fed. Bep. 251; Welsh v. Bell, 32 Fa. St. 12. 
 
426 WRONGS TO POSSESSION AND PROPERTY. 
 
 III. — Injuries to Reversion. 
 
 Wrongs to an owner not in possession. A person in 
 possession of property may do wrong by refusing to de- 
 liver possession to a person entitled, or by otherwise 
 assuming to deal with the property as owner or adversely 
 to the true owner, or by dealing with it under colour of his 
 real possessory title but in excess of his rights, or, where 
 the nature of the object admits of it, by acts amounting to 
 destruction or total change of character, such as breaking 
 up land by opening mines, burning wood, grinding corn, 
 or spinning cotton into yarn, which acts however are only 
 the extreme exercise of assumed dominion. The law 
 started from entirely distinct conceptions of the mere 
 detaining of property from the person entitled, and the 
 spoiling or altering it to the prejudice of one in reversion 
 or remainder, or a general owner (tZ). 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 (e). For the latter 
 the writ of waste (as extended by the Statutes of Mai'l- 
 bridge and Gloucester) was available as to land; later this 
 was supplanted by an -action on the case(_/) "in the 
 
 i^d) As to the term " reversionary In- replevin here. The cnrions reader may 
 
 tcrest " applied to goods, op. Dicey on consnlt Mennie v. Blake {1856), 6 £. & B. 
 
 Parties, 345. In one way " reversioner " 842, 25 L. J. Q. B. 399. For the earliest 
 
 woald be more correct than " owner " or form of writ of entry see Close Rolls, 
 
 "general owner," for the person entitled vol. i. p. 32. Blackstone is wrong in 
 
 to sue in trover or prosecute for theft is stating it to have been older than the 
 
 not necessarily domiimSt and the domi- assizes. 
 
 71US of the chattel may be disqaalifled (/) Under certain conditions waste 
 
 from so snlDg or prosecuting. might amonnt to trespass, Litt. h. 71, see 
 
 (e) It seems useless to say more of more in sect. vii. of the present chapter. 
 
 Wrongs to an owner not in possession. See American notes under 
 
 MODERN LAW OF WASTE, pOSt, p. 308. 
 
WASTE. 427 
 
 nature of waste," and in modern times the power and 
 remedies of courts of equity have been found still more 
 effectual (g). The process of devising a practical remedy 
 for owners of chattels was more circuitous; they were 
 helped by an action on the case which became a distinct 
 species under the name of trover, derived from the usual 
 though not necessary form of pleading, which alleged that 
 the defendant found the plaintiff's goods and converted 
 them to his own use (A). The original notion of conversion 
 in personal chattels answers closely to that of waste in 
 tenements ; but it was soon extended so as to cover the 
 whole ground of detinue («'), and largely overlap trespass; 
 a mere trespasser 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. 
 
 JV.— Wasie. 
 
 Waste. Waste is any unauthorized act of a tenant for 
 a freehold estate not of inheritance, or for any lesser inter- 
 est, 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 i an alteration not 
 otherwise mischievous may be waste in that it throws doubt 
 on the identification of the property, and thereby impairs 
 
 (jr) For the history and old law, see Littleton's remark in 33 H. VI., 27, pi. 12, 
 
 Co. Litt. .53, 54; Blackst. U. 281, iii. 223; an action of detinne where a finding by 
 
 notes to Greene v. Cole, 2 Wms. Sannd. the defendant was alleged, that " this 
 
 644; and Wbodhouse T. Walker (1880), 5 declaration per inventionem is a new 
 
 Q. B. D. 404. The action of waste proper fonnd Haliday " ; the case is translated 
 
 conldbe bronghtonly "byhim thathath by Mr. R. S. Wright in Pollock and 
 
 the Immediate estate of inheritance," Wright on Possession, 174. 
 
 Oo. Utt 53a. (i) Martin B., I. c, whose phrase " In 
 
 (7i) Blackst. ill. 132, cf. the judgment Tery ancient times" is a little mislead - 
 
 of Martin B. in Bwrrmighes v. Bayne ing, for trover, as a settled common 
 
 (1860), 5 H. &N. 296, 291/. J. Ex. 185, 188; form, seems to date only from the 16th 
 
 and as to the forms of pleading, Bro. Ab. century ; Keeves Hist. Eng. L. iv. 526. 
 Accion snr le Case, 103, 109, 113, and see 
 
428 WRONGS TO POSSESSION AND PROPERTY. 
 
 the evidence of title. It is said that every conversion of 
 land from one species to another — as ploughing up wood- 
 land,' or turning arable into pasture land — is waste, and 
 it has even been said that building a new house is 
 waste (^•). But modern authority does not 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 indentity" (l). And in the United 
 States, especially the Western Statfes, ^many acts are held 
 to be only in a natural and reasonable way of using and im- 
 proving the land — clearing wild woods for example — 
 which in England, or even in the Eastern States, would be 
 manifest waste (wi). As to permissive waste, t. e., suffer- 
 ing the tenement to lose its value or go to ruin for want of 
 necessary repair, a tenant for life or years is liable therefor 
 if an express duty to repair is imposed upon him by the 
 instrument creating his estate; otherwise he is not (?i). 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 " ^o\, whatever the actual conse- 
 quences 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 lawful 
 origin (p). Destructive waste by a tenant at will may 
 amount to trespass, in the strict sense, against the lessor. 
 
 (ft) " It the tenant build a new house, (1354), 4 D. M. 6. 448: Se Hotchkys, Freke 
 
 it Is wsste; and If he suffer it to be y, CcUmady (1886), 32 Ch. D. 408, 5SL. J. 
 
 wasted. It is a new waste." Oo. Litt. Oh. 546. 
 53 a. (o) Manchester Bemded Warehouse Co. 
 
 (Z) Jo«es V. ChappeU (1875), 20 Eq. 539, v. Carr (1880), 5 . P. D. 507, 512, 49 L. J. 
 
 540— 2(JosselM.E.); ilfeiiKT. Co6iey, "92, C. P. 809; following Saner v. Bilton 
 
 2 Ch. 253. (1878), 7 Oh. D. 815, 821, 47 L. J. Ch. 267; 
 
 (m) Oooley on Torts, 333. cp. Job v. Pottmi (1875) , 20 Eq. 84, 44 L. J. 
 
 (k) Be Cartwright, Avis T. Newman Oh. 262. 
 (1889), 41 Oh. D. 532, 58 L. J. Oh. 690. An (p) EUas v. Snowdon Slate Quarries 
 
 equitable tenant for life is not liable for Co. (1879), i App. Ca. 454, 465,48 L. J, Ch. 
 
 permissive waste: Powys v. Blagraate 811. 
 
WASTE. 429 
 
 The reason will be more conveniently explained here- 
 after (§■). 
 
 Modern law of waste : tenants for life. In modern 
 practice, questions of waste arise either between a tenant 
 for life (r-) and those in remainder^ or between landlord 
 
 (3) Se9 below in sect. tU. of this of waste arising ont of snoh tenancies, 
 
 chapter. See Cooley on Torts, 333, or Scribner on 
 
 (r) In the United State* where Dower (2ncl ed. 1S83), i. 212— 2U; li. 793 
 
 tenancy in dower is still common, there sqq, 
 are many modern decisions on questions 
 
 Modern law of waste. What constitutes waste in England might not 
 be considered waste in the United States, or vice versa. And this Is 
 because the material conditions of the two countries are different. See 
 Kidd V. Dennison, 6 Barb. 19; Keller v. Eastman, 11 Vt. 293; Findley v. 
 Smith, 6 Munf. 134. 
 
 In some parts of the United States standing timber is not regarded as 
 valuable and its removal is the first step towards cultivation. Whether 
 the removal of timber is waste depends on the circumstances, good hus- 
 bandry being the test, and the question is for the jury. Alexander v. 
 Fisher, 7 Ala. 614; Drown v. Smith, 52 Me. 141; Gardener v. Bering, 1 
 Paige, 574; Wilkinson v. Wilkinson, 59 Wis. 357; Keeler v. Eastman, 11 
 Vt. 293; McGregor v. Brown, 10 N. Y. 114; Chase v. Hazelton, 7 N. H. 
 171; King v. Miller, 99 N. C. 583; 6 S. B. Bep. 660; Clemence v. Steere; 
 1 R. I. 222. 
 
 It is not waste to cut timber for necessary fences though timber is 
 scarce. Calvert v. Eice, 91 Ky. 533; 16 S. W. Eep. 351. Nor to cut fuel 
 for a furnace from land which Is attached to the furnace. Den v. Kin- 
 ney, 5 N. J. L. 552. 
 
 That the value of land is not diminished, or even increased, is no 
 defence to actual waste. Bossman v. Adams, 91 Mich. 69 ; 51 N. W. Eep. 
 685; Moses v. Johnson, 88 Ala. 517; 7 So. Eep. 146. 
 
 When the chief Inducement to cut timber is the profit from its sale, 
 waste is committed. Kidd v. Dennison, 6 Barb. 19; Davis v. Gillian, 5 
 Ired. Eq. 308. 
 
 Selling hay off a farm is not waste, but aliter as to digging bog-grass. 
 Sarles v. Sarles, 3 Sandf. Ch. 601. So, taking clay from the soil for the 
 manufacture of bricks is waste. University v. Tucker, 31 W. Va. 621; 
 8 S. E. Eep. 410; Livingston v. Eeynolds, 2 Hill (Ky.), 157. Also, letting 
 hogs injure the character of meadow land is waste. Bellows i). McGin- 
 nis, 17 Ind. 64. 
 
 Mere ill-husbandry is not waste. Eichards v. Torbett, 3 Houst, 172. 
 Yet, it has been held that neglect to observe the proper rotation of 
 crops was waste. Wilds v, Layton, 1 Del. Ch. 226. And that the 
 
430 WRONGS TO POSSESSION AND PKOPERTr. 
 
 and tenant. In the former 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, agricultural, 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 
 esta.tes " on which wood is grown for the pur- 
 pose of periodical cutting and sale, so that " cutting 
 the timber is the mode of cultivation " (s). On 
 such land cutting the timber is equivalent to taking a crop 
 
 (s) As to the general law concerning M. R., Honywood v. Monywood (1874), 18 
 timber, and its possible variation by Eq. 306, 309, 43 L. J. Cb. 632. 
 local custom, see the judgmest of Jessel 
 
 exhaustion of the soil by constant tillage was waste. Sarles v. Sarles, 8 
 Sandf. 601. 
 
 The tearing down of a honse is waste though a better one replace it. 
 Dooley v. Stringham, 4 Utah, 107; 7 Pac. Rep. 405. 
 
 It is permissive waste to allow land to be sold for taxes. Cannon v. 
 Barry, 59 Miss. 289. Or to suffer a gin-house to be dismantled. Id. Or 
 to suffer a pasture to be overrun with weeds. Clemence v. Steere, 1 K. I. 
 272. But it is not waste to allow buildings used for housing slaves before 
 the emancipation to remain unrepaired thereafter unless their utility iu 
 some other direction be apparent. Sherrill v. Connor, 107 N. C. 630; 12 
 S. E. Kep. 588. 
 
 An action is maintainable for injury to a reversionary right. Webb -o. 
 Portland Mfg. Co,, 3 Sumn. 190. While a life tenant shall not open new 
 or discontinued mines, (Gaines*. Greene, etc. Co., 32 N.J. Eq.86; Erank- 
 lin Coal Co. v. McMullen, 49 Md. 549), he may exhaust mines and quar- 
 ries open at the commencement of the estate. Sayers v. Haskinson, 
 110 Pa. St. 473; 1 At. Rep. 308; McCord v. Oakland Quicksilver Co., 64 
 Cal. 134; 27 Pac. Rep. 863; Russell v. Merchants' Bank, 47 Minn. 286; 
 50 N. W. Rep. 228. 
 
 An injunction will issue upon threats to commit waste. White 
 Water Valley Canal Co. u. Comeggs, 2 Ind. 469; Loundan v. Warfleld, 
 3 J. J. Marsh. 196. But not unless the injury would be irreparable and 
 impossible to compensate by damages. Atkins v. Chilson, 7 Mete. 398; 
 Poindexter v. Henderson, 1 Miss. 176. Where the title is in dispute no 
 injunction will issue. McBride v. Board of Commrs., 44 Fed. Rep. 17; 
 Nevitt V. Gillespie, 2 Miss. 108. But a majority of the late cases are to 
 the contrary. Kinsler v. Clarke, 2 Hill Eq. 617; Snyder ». Hopkins, 31 
 Kan. 567; Duvall v. Waters, 1 Bland, 569; Lamier v. Allison, 31 Fed. 
 Rep. 100. See cases cited, ante, p. 225. 
 
WASTE. 431 
 
 off arable 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 minerals 
 for use, but, unless with further specific authority, he must 
 not remove timber planted for ornament ( save so far as the 
 cutting of part is required for the preservation of the 
 rest) (t), open a mine in a garden or pleasure-ground, or 
 do like acts destructive to the individual character and 
 amenity of the dwelling-place (m). The commission of 
 such waste may bfe 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 (v). Further details on the 
 subject would not be appropriate here. They belong rather 
 to the law of Real Property. 
 
 Ijandlord and tenant. As between landlord and tenant 
 the real matter in dispute, in a case of alleged waste, is 
 commonly the extent of the tenant's obligation, under his 
 express or implied covenants, to keep the property demised 
 in safe condition or repair. Yet the wrong of waste is none 
 the less committed (and under the old procedure was no less 
 remediable by the appropriate action on the case) because 
 it is also a breach of the tenant's contract (cc). 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 (y): 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. 
 
 (<) See Baker V. Sebright (1879), 13Ch. preme Court of Judicature Act, 1873) , d. 
 
 D. 179, 19 L. J. Ch.65; bat it seems that 25, sub-s. 3. 
 
 a remainderman coming in time would (») Bvbb v. Telverton (1870), 10 Eq. 465- 
 
 be entitled to the supervision of the Here the tenant for life had acted in 
 
 Court in such case ; ib. 188. good faith under the belief that he was 
 
 («) Waste of this Jiind was known as improving the property. Wanton acts- 
 
 " equitable waste," the commission of it of destruction would be very difEerently 
 
 by a tenant unimpeachable for waste treated, 
 not being treated as wrongful at common («) 2 Wms. Saund. 646. 
 
 law; see now 36 & 87 Vict. o. 66 (the Su- (y) Eg, Tucker v. Linger (1882), 21 Oh. 
 
 Div. 18, 51 L. J. Oh. 713. 
 
432 WBONGS TO POSSESSION AND PKOPERTT. 
 
 V. — Conversion. 
 
 Conversion : relation of trover to trespass. Conver- 
 sion, according to recent authbrity, may be described as the 
 wrong done by " an unauthorized act which deprives an- 
 other of his property permanently or for an indefinite 
 time" (z). Such an act mayor may not include a tres- 
 pass ; whether it does or not is immaterial as regards the 
 
 («) Bramwell B., adopting the expres- snbject down to 1871 is collected (in a 
 
 sion of Bosanqnet, arg., Hiart v. Bott somewhat formless manner it must be 
 
 (1874), Li. B. 9 Ex. S6, 89, 43 L. J. Ex. 81. allowed) in the notes to WUbraham v. 
 
 All, or nearly all, the learning on the Snow, 2 Wms. Sannd. 87. 
 
 Kelation of trover to trespass. Vide Grafton v. Carmlchael, 48 Wis. 
 660, supra, p. 300. 
 
 In order to maintain trover a general or special property in the plaint- 
 iff is required. Kemp v. Thompson, 17 Ala. 9; Glaze v. McMilliou, 7 
 Port. 279; Taylor v. Howall, 4 Blackf. 317; Barton v. Dunning, 6 Id. 209. 
 A mere equitable title without legal possession will not support the 
 action. Fulton v. I'ulton, 48 Barb. 681 ; I<espeyre ». McFarland, 2 Foyl. 
 187; Northern E. R. Co. v. Paine, 119 U. S. 661 ; Street v. Nelson, 80 Ala. 
 230. Nor will an executory contract for goods. Wood v. Atkinson, 2 
 Murph. 87; Jones v. Morris, 7 Ired. 870; Deeley c. Dwight, 132 N. Y. 
 69; SO N. E. Kep. 2S8; Tuthill v. Wheeler, 6 Barb. 862; Whitcomb v. 
 Hungerford, 42 Barb. 177. 
 
 A vendor reserving title till payment by vendee may bring trover. 
 Bryant B. Clifford, 13. Mete. 138; Rhodes v. Diclsinson, 79 Ga. 724; 4 S. 
 E. Rep. 164. But see Newhall v. Kingsbury, 131 Mass. 446. But one 
 who consigns goods to be paid for as sold cannot maintain trover. 
 Hardy v. Munroe, 127 Mass. 64. Nor can a pledgor who parts with 
 possession. Colly v. Cressy, 5 N. H. 237. 
 
 A creditor who holds his debtor's property under an agreement to sell 
 and apply the proceeds on the debt may sue in trover. Fish ■». ClifEord, 
 64 Vt. 344. But a mortgagee cannot until default. Heflin v. Slay, 78 
 Ala. 180. Coreira, Gibbs M.Weston, 110 Pa. St. 312; 1 At. Rep. 921. Nor 
 can the general owner where there has been a lease of chattels. Fort v. 
 Pursley, 82 111. 152 ; Owens v. Weedman, Id. 409. Nor can the rever- 
 sioner of a life tenant of chattels bring trover during the life tenancy. 
 Lewis V. Mobley, 4 Dev. & B. 323. But see Logan v. Hartford Coal Co., 
 9 Heisk, 689. 
 
 Possession, or the right of Immediate possession, entitles one to 
 maintain trespass against a wrong-doer. Staples v. Smith, 48 Me. 471 ; 
 Becker w. Smith, 59 Pa. St. 473; Durfour v. Anderson, 95 Ind. 302; 
 Muggridge v. Eveleth, 9 Mete. 233. 
 
CONVERSION. 433^ 
 
 right of the plaintiff in a civil action, for even under the old 
 forms he might " waive the trespass " ; though as regards 
 the possibility of the wrong-doer being criminally liable it 
 may still be a vital question, trespass by taking and carry- 
 ing away the goods being a necessary element in the offence 
 of larceny at common law. But the definition of theft (in 
 the first instance narrow but strictly consistent, afterwards 
 complicated by some Judicial refinements and by numerous 
 unsystematic statutory additions) does not concern us here. 
 The " property ' *of which the plaintiff is deprived — -the 
 subject-matter of the right which is violated — must be 
 something which he has the immediate right to possess; 
 only on this condition could one maintain the action of 
 trover under the old forms. Thus, wher^ goods had been 
 sold and remained in the vendor's possession subject to the 
 vendor's lien for unpaid 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 (a). 
 
 But an owner not entitled to immediate possessipn 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 (6). 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. 
 
 What amounts to conversion. On the other hand, the 
 name has been thought altogether objectionable by con- 
 
 (a) Iiord V. Frioe (1874), L. E. 9 Ex. 64, Court In C<ni;pi Co. v. Maddide, '91, 2 Q. 
 
 43 L. J. Ex. 49. B. 413, 60 L. J. Q. B. 676, which assumes 
 
 (6) Mears v. L. f S. W. R. Co. (1862), that a bailor for a term has no remedy 
 
 11 C. B. N. S. 850, 31 L. J. C. P. 220. This against a stranger who Injures the 
 
 appears to have been overlooked in the chattel, 
 reasoning if not In the decision of the 
 
 2S 
 
434 WRONGS TO POSSESSION AND PROPERTY. 
 
 siderable authorities (c): and certainly the natural mean- 
 ing of converting property to one's own use has long been 
 left behind. It came to he seen that the actual diversion 
 of the benefit arising from use and possession was only one 
 aspect of the wrong, and not a constant one. It did not 
 
 (c) See 2 Wms. Saund. 108, and per Bramwell L. J., 4 Ex. D. 194. 
 
 "What amounts to conversion. Any act of dominion wrongfully ex- 
 ercised over property in denial of the owner's right, or inconsistent with 
 it, is a conversion. McPheters v. Page, 83 Me. 234; 22 At. Eep. 101; 
 Baker v. Beers, 64 N. H. 102; 6 At. Eep. 35; Frome v. Dennis, 45 N. J. L. 
 515; Gordon v. Stockdale, 89 Ind. 240. See Eobertson v. Huntj 77 Tex. 
 321 ; 14 S. W. Eep. 68 ; Rhodes v. Dickinson, 79 Ga. 724 ; 4 S. E. Eep. 1S4 ; 
 Eodney Hunt Mach. Co. v. Stewart, 57 Hun, 545; 11 N. Y. S. Rep. 448; 
 Lewis V. Ocean Nav. & Pier Co., 125 N. Y. 341; 26 N. E. Eep. 301; Olds 
 V. Chicago etc., 33 '.111. App. 445; Thomson v. Gortner, 73 Md. 474; 21 At. 
 Eep. 371; Balling v. Kirley, 90 Ala. 215; 7 So. Rep. 914; Omaha A. & S. 
 Co. V. Rogers, 35 Neb. 61; 52 N. "W. Eep. 826; Smith v. Wood, 63 Vt. 534; 
 22 At. Eep. 675; Johnson v. Farr, 60 N. H. 426; Miller v. Thompson, 60 
 Me, 322 : Reeve v. Fox, 40 111. App. 127; LoefEel v. Pohlman, 47 Mo. App. 
 574; Petrie v. WiUiams, 68 Hun, 589; 23 N. T. S. Rep. 237; Williams v. 
 Smith, 153 Pa. St. 462; 25 At. Eep. 1122; Sanborn v! Hamilton, 18 Vt. 
 690; Alexander v. Swackhamer, 105 Ind. 81; 4 N. E. Eep. 433; Hewes v. 
 Platts, 12 Gray, 143. 
 
 To maintain trover, there must be either, (1) a taking from the owner 
 without his consent; (2) an assumption of ownership; (3) an illegal use 
 or abuse of it; or (4), proof of demand and refusal. Eennett «. Eobin- 
 son, 2 J. J. "Marsh. 84. See Parker v. First Nat. Bank (N. D.), 54 N. W., 
 Eep. 313; Lopp v. Pinover, 27 111. App. 169. Hence, it is held, that 
 manual taking of property is not necessary to constitute conversion, if 
 there is actual attempt at disposal. Webber v. Davis, 44 Me. 147; 
 Dickey v. Franklin Bank, 32 Me. 572. 
 
 The adulteration of liquor by a common carrier thereof is a conversion. 
 Dench v. Walker, 14 Mass. 500; Young v. Mason, 8 Pick. 551. But a 
 mere delay in transportation is no conversion. Briggs v. New York, etc., 
 E. Co. 28 Barb. 515. 
 
 A bank mingling a special deposit with general funds is guilty of con- 
 version. Monmouth Bank ». Dunbar, 19 111. 558. So Is a carrier deliver- 
 ing goods to officers under an illegal attachment. Gibbons v. Farwell, 
 68 Mich. 233; 29 N. W. Eep. 855. 
 
 One selling chattels not his own is liable for conversion though he 
 believed he was selling his property. Morrill v. Moulton, 40 Vt. 242; 
 Johnson v. Powers, Id.. 611. It is a rule that the innocent motive of a 
 party converting property is no defence, but may be proved to reduce 
 
EVIDENCE OF CONVERSION. 436 
 
 matter to the plaintiff whether it was the defendant, or a 
 third person taking* delivery from the defendant, who used 
 his goods, or whether they were used at all ; the essence of 
 the injury was that the use and possession were dealt with 
 in a manner adverse to the plaintiff and inconsistent with 
 his right of dominion. 
 
 The grievance is the unauthorized assumption of the 
 powers of the true owner. Actually dealing with another's 
 goods as owner for however short a time and however 
 limited a purpose (d) is therefore conversion; so is an act 
 which in fact enables a third person to deal with them as 
 owner, and which would make such dealing lawful only if 
 done by the person really entitled to possess the goods (e). 
 It makes no difference that such acts were done under a 
 mistaken but honest and even reasonable supposition of 
 being lawfully entitled (d), or even with the intention of 
 benefiting the true owner (e); nor is a servant, or other 
 merely ministerial agent, excused for assuming the 
 dominion of goods on his master's or principal's behalf, 
 though he " acted under an unavoidable ignorance and for 
 
 (d) Bollins v. Vowler (1875), L. E. 7 H. (e) Biort v. Bott, L. E. 9 Ex. 86, 43 L. 
 
 L. 757, 44 L. J. Q. B. 169. J. Ex. 81. 
 
 - ^ . 
 
 exemplary damages. Waverly T. & I. Co. v. St. Louis Cooperage Co., 
 112 Mo. 383; 20 S. W. Bep. 566; Baltimore & O. R. Co. v. O'Donnell, 49 
 Ohio St. 489; 32 N. E. Eep. 476; Benton v. Beattie, 63 Vt. 186; 22 At. 
 Bep. 422 ; Lahner v. Hertzog, 23 111. App. 308 ; Williams ». Deen (Tex. 
 Civ. App.), 24 S. W. Eep. 536; Kenney ». Eanney (Mich.), 55 N. W. Eep. 
 982. 
 
 In general, an agent making demand for his principal must give a fair 
 proof of authority or the refusal will not sustain trover. Eobertson v. 
 Crane, 27 Miss. 362; Watt v. Porter, 2 Mass. 77. 
 
 If a refusal is the result of a reasonable doubt in a doubtful matter 
 trover will not lie. Robinson ». Burleigh, 6 N. H. 225 ; Zachray v. Pace, 
 9 Ark. 212; Carroll v. Mix, 51 Barb. 212. But the refusal must" be dis- 
 tinctly put on that ground. Ingalls v. Bulkley, 15 111. 224. 
 
 A qualified refusal is not conversion- ;jer ae. Thomas v. Sixpenny 
 Bank, 5 Bosw. 293; Ward v. Moffitt, 38 Mo. App. 395. 
 
 Eecovery in trover bars plaintiff's title to the property. Kenyon v. 
 Woodruff, 33 Mich. 310. Butnot if the judgement is unsatisfied. Atwater 
 
436 WRONGS TO POSSESSION AND PKOPERTY. 
 
 his master's benefit" (/). It is common learning that a 
 refusal to deliver possession to the true owner on demand 
 is evidence of a conversion, but evidence only (g); 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 
 disregard of the plaintiflTs title, and for the purpose of 
 claiming the goods either for the defendant or for a third 
 person, it is a conversion" (h). But this is not the only 
 possible inference and may not be the right one. The 
 refusal may be a qualified and provisional one: the pos- 
 sesssor may say, " I am willing to do right, but that I may 
 be sure I am doing right, give me reasonable proof that 
 yon are the true owner " : and such a possessor, even if 
 over-cautious in the amount of satisfaction he requires, 
 can hardly be said to repudiate the true owner's claim (i). 
 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 kej' of the warehouse — may 
 reasonably and justifiably say to the bailor demanding his 
 goods: "I cannot deliver them without my master's 
 order"; and this is no conversion. "An unqualified re- 
 fusal is almost always conclusive evidence of a conversion ; 
 but if there be a qualification annexed to it, the question 
 
 (/) Siephenay. ElwdU (1815),4 M. & S. {g) Btdme v. Hutton, Ex. C*. (1833) 9 
 
 269; admitted to be good law In Bollim Btng. 471, 476. 
 
 T. Fowler, L. E. 7 H. JL. at pp. 769, 795, (A) Opinion of Blackbom J. In Hol- 
 
 and followed in Barker v. Furlong, '91, 2 tins T. Fowler, I^ B. 7 H. L. at p. 766. 
 Ch. 173, 60 L. J. Oh. 368. Cp. Fine Art (i) See Surroughes v. Sayne (1860), 5 
 
 Society v. Union Bank of London (1886), H. & K. 296, 29 L. J. Ex. 186, 188, eupra, 
 
 17 Q. B. DlT. 705, 56 L. J. Q. B. 70. p. 306. 
 
 ». Tapper, 45 Conn. 144; Singer Mfg. Co. c. Skjllman, 52 N. J. L. 263; 
 19 At. Sep. 260 ; Pryor v. Portsmouth Cattle Co., (N. M.) 27 Pac. Eep. 327. 
 If the property Is.retumed the damages are nominal. Barrelet v. Bell- 
 yard, 71 111. 280. But a return may be refused. Kelly v. McDowall, 3^ 
 Aik. 387. A jndgment lor a conversion of chattels will bar a judgment 
 for the recovery of any chattels covered by that act of conversion. 
 McCaffrey v. Carter, 125 Mass. 330. 
 
EVIDENCE OP CONVERSION. 437 
 
 then is whether it be a reasonable one " (k). Again there 
 may be a wrongful dealing with goods, not under an 
 adverse claim, but to avoid having anything to do with 
 them or with their owner. Where a dispute arises between 
 the master of a ferryboat' and a passenger, aud 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 conver- 
 sion (Z). This seems of little importance in modern prac- 
 tice, but we shall s^e that it might still affect the measure 
 of dam^es. 
 
 In many cases the refusal to deliver on demand uot only 
 proves but constitutes the conversion. When this is so, 
 the Statute of Limitation runs from the date of the refusal, 
 without regard to any prior act of conversion by a third\ 
 person (m). 
 
 By a conversion the true owner is, in contemplation of 
 law, totally deprived of his goods ; therefore, except in a 
 few very special cases (w), the measure of damages in an 
 action of trover was the full value of the goods, aud by a 
 satisfied judgment (o) for the plaintiff the property in the 
 goods, if they still existed in specie, was transferred to the 
 defendant. 
 
 • 
 
 Acts not anxonnting to conversion. The mere asser- 
 tion of a pretended right to deal with goods or threatening 
 to prevent the owner from dealing with them is not con- 
 version, though it may perhaps be a cause of action, if 
 special damage can be shown (p) ; indeed it is doubtful 
 
 (£) Alexander v. Saathei/ (,1^1),SB.& ber of the Court who was clear that 
 
 A. 247, per Best J. at p. 250. there was any conversion at all. 
 
 (0 Fouldes V. WiUougM)}/, 8 M. & W. (o) Not by judgment without satisfae- 
 
 540; ep. Wilson v. McLaughlin (1871), 107 tion; Ex parte Drake (1877), 6 Ch. Div. 
 
 Mass. 587. 866, 46 L. J. Bk. 29; following nrinemead 
 
 (IB) Miller V. Dell, '91, 1 Q. B. 468, 60 L. T. Harriaon (1871), L. E. 6 0. P. 581, 10 L. 
 
 J. d. B. 404, C. A. J. 0. V. 281. 
 
 (n) See per Bramwcll L. J., S Q. B. D. (p) England v. Cowley (1873), L. E. 8 
 
 490; Siort T. i. ^ ^V. tT. E. Co. (1879), 4 Ex. 126, see per Kelly C. B. at p. 132, 42 
 
 Ex. Div. 188, 48 L. J. Ex. 545, Where how- L. J. Ex. 80. 
 ever Bramwell L. J. was the only mem- 
 
438 WRONGS TO POSSESSION AND PROPERTY. 
 
 whether a person not already in possession can commit the 
 wrong of conversion by any act of interference limited to 
 a special purpose and falling short of a total assumption of 
 dominion against the true owner (g). 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 con- 
 version. Jf undertaken in good faith, it would seem not 
 to be actionable at all; otherwise it might come within the 
 analogy of slander of title. But if a wrongful sale is fol- 
 lowed up by delivery, both the seller (r) and the buyer (s) 
 are guilty of a conversion. Again, a mere collateral breach 
 
 (g) See per Bramwell B. and Kelly C. ing the goods absolately as goods of the 
 
 B. ib. 131, 132. bailee under a Ji. fa.; the decision is on 
 
 (r) hancasMre Waggon Co. v. FUzhugh the pleadings only). 
 (1861), 6 H. & N. see, 30 L. J. Ex. 231 (s) Cooper v. WillamaU (1845), 1 C. B. 
 
 (action by bailor against sheriff for sell- 672, 14 L. J. C. P. 219. 
 
 Acts not amounting to conversion. Contrary to the initial statement 
 of llie text, it seems that there are cases where the mere claim of a right 
 is as efiectnal a conyersion as any physical act of authority or control. 
 Thus in University of North Carolina v. State National Bank (96 N. C. 
 280; 3 S. E. Rep. 359), it was held that a mere claim by the bank of the 
 right to apply bonds deposited as collateral by A. to secure a personal 
 debt toward the payment of a debt owed to It by a corporation, was 
 a conversion. 
 
 The mere purchase of goods from one who does not own them, does not 
 constitute conversion. Valentine i-. Duff (Ind. App.), 34 N. E. Rep. 453. 
 
 A sale on credit by an agent, authorized to sell for cash only, is not 
 a conyersion. Loveless v. Fowler, 79 Ga. 134; 4 S. E. Eep. 103; Moore 
 ». McKibbin, 33 Barb. 246 ; Sargeant b. Blunt, 16 Johns. 74. But other- 
 wise, where the agent exchanges Instead of seUs. Ainsworth v. ParteUo, 
 13 Ala. 460. 
 
 The accidental loss or destruction of an article by one lawfully in its 
 possession, is not a conyersion. Salt Springs Nat. Bank ». Wheeler, 48 
 N. Y. 492. 
 
 Merely moving timber from the highway where it is an illegal obstruc- 
 tion is not conversion. Plummer v. Brown, 8 Mete. 578. 
 
 For other cases illustrating the proposition, see Dozier v. Pillot, 79 
 Tex. 224; 14 S. W. Eep. 1027; Traylor v. Hughes, 88 Ala. 617; 7 So. Rep. 
 159; Lehigh etc. Co. o. New Jersey etc. Co. (N. Y.), 26 At. Rep. 920 
 Freeman v. Grant, 132 N. Y. 22; 30 N. E. Rep. 247; Clegg v. Boston etc. 
 Co., 149 Mass. 454; 21 N. E. Rep. 877. 
 
CONVERSION UNDER MISTAKE. 439 
 
 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 
 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 (<). 
 
 Dealings under authority of apparent owner. A 
 
 merely ministerial pealing with goods, at the request of an 
 apparent owner having the actual control of them, appears 
 not to be conversion («); but the extent of this limitation 
 or exception is not precisely defined. The point is handled 
 in the opinion delivered to the House of Lords in Hollins 
 
 («) Janes v. Hough (1879), 5 Ex. Div. case of the class last mentioned, lor the 
 
 115,19 ],. J. Ex. 211 ; cp. J?eaW T. Carey defendant received the goods on behalf 
 
 (next note). of the true owner, and was held to have 
 
 (M) Hecdd V. Carey (1852), 11 C. B. done nothing with them that he might 
 
 977, 21 L. J. C. P. 97; bnt this is really a not properly do. 
 
 Dealings under authority of apparent owner. Mere possession will 
 not justify a person in presaming title to be in the possessor. The pur- 
 chaser from a {hief in actual possession of goods acquires no title as 
 against the owner. Good faith and ignorance are no defense. Spraights 
 V. Hawley, 39 N. Y. 441; Lee v. McKay, 3 Ired. 29; Omaha etc. Co. v. 
 Tabor, 13 Colo. 41; 21 Pac. Rep. 925; United States v., Kelley, 3 Wash. 
 Ter. 421; 17 Pac. Rep. 878; Norris v. Hall, 41 Ala. 510; Harris v. Saun- 
 ders, 2 Strobh. Eq. 370; Cooper v. Newman, 45 N. H. 339; Gilmore v. 
 Newton, 9 Allen, 171; Pease v. Smith, 61 N. Y. 477. 
 
 One Innocently selling chattels under authority of the apparent owner 
 is liable in case he is mistaken. Spraights v. Hawley, 39 N. Y. 441 ; 
 Kimball v. Billings, 55 Me. 147; Briggs v. Haycock, 63 Cal. 343; Scofleld 
 V. Kreiser, 3 N. Y. S. Rep. 803. 
 
 Thus, an auctioneer innocently selling stolen property is liable in con- 
 version. Everett u. Coffin, 6 Wend. 603; Milliken v. Hath way, 148 Mass. 
 69; 19 N. E. Kep. 16; Hoffman v. Carow, 22 Wend. 285; Robinson v. 
 Bird, 158 Mass. 357; 33 N. E. Rep. .891. But see Rogers v. Hine, 2 Cal. 
 571. A commission merchant who sells goods ignorant of a title ad- 
 verse to that of his principal, was held not liable in Abernathy v. 
 Wheeler (Ky.), 17 S. W. Eep. 858. But sSe Taylor v. Pope, 5 Coldw. 413. 
 
 A person who sends goods to a dealer for exhibition may bring trover 
 against a person who innocently purchases them from the dealer. Smith 
 V. Clewes, 33 Hun. 501. 
 
440 WRONGS TO POSSESSION AND PROPERTY. 
 
 V. Fowler (w) 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 excused if done by the 
 authority of the person in possession (aj), if he was a finder 
 of the goodsj or intrusted with their custody*^ This ex- 
 cludes from protection, and was intended to exclude, such 
 acts as those of the defendants in the case then at bar : 
 they had bought cotton, innocently and without negligence, 
 from a holder who had obtained it by fraud, and had no 
 title, and they had immediately resold it to a firm for whom 
 they habitually acted as cotton brokers, not making any 
 profit beyond a broker's commission. Still it appeared to 
 the majority of the judges and to the House of Lords that 
 the transaction was not a purchase on account of a certain 
 customer as principal^ but a purchase with a mere expecta- 
 tion of that customer (or some other customer) taking the 
 goods; the defendants therefore exercised a real and 
 efiective though transitory dominion: and having thus 
 assumed to dispose of the goOds, they were liable to the 
 
 (») L. E. 7 H. L. at pp. 766 — 768. posed it would be. accompanied by legal 
 
 (x) Observe that this means physical possession, in others not. 
 
 possession; in some of the cases pro- 
 One innocently purchasing from a vendee witli the title remaining in the 
 
 vendor till payment is liable in trover. Carter v. Kingman, 103 Mass. 617. 
 One who purchases from a wife property belonging to her husband, Is 
 
 liable to the husband for conversion. Rice v. Yocum, 165 Pa. St. 638; 
 
 26 At. Eep. 698; 32 W. N. C. 856. See Mead v. Jack, 12 Daly, 65 
 A teamster who hauls goods from an unlocked room at the instance of 
 
 the house-owner is not liable therefor, though the property belongs to 
 
 the {)erson who hires the room. Garley v. Armistead, U8 Mass. 267; 19 
 
 N. E: Eep. 389. 
 
CONVEKSION UNDER MISTAKE. 441 
 
 true owner (3/). 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 (3). 
 
 Acts of servants. But what of the servants of those 
 purchasers, who handled the cotton under their authority 
 and apparent title, and by maising it 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 been made the nominal defendant and liable for the 
 whole value of the cotton? Or if a thief brings corn to a 
 miller, and the miller, honestly taking him to be the true 
 owner, grinds the corn into meal and delivers the meal to 
 him without notice of his want of title; is the miller, or 
 are his servants, liable to the true owner for the value of 
 the corn (z)? 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 under a contract with such owner, 
 according to the apparent owner's direction; neither the 
 act done, nor the contract (if any), purporting to involve a 
 transfer of the supposed property in the goods, and the 
 ostensible owner's direction being one which he could law- 
 
 (2;) See per Lord Cairns, 7 H. L. at p. of the apparent owner's want of title : 
 797. Tbis principle applies to sale and ComoUdated Co. y. Owrtis, '92, 1 Q. B. 495. 
 delivery by an auctioneer witlioat notice (z) Blackburn J., 7 H. L. 764, 76S. 
 
 Acts of servants. An agent or servant in possession of property of 
 another is liable for his dealings therewith adversely to the rights of the 
 real owner. Lafayette County Bank v, Metcalf, lO Mo. App. 494; Gal- 
 breath V. Epperson (Tenn.), 1 S. W. Bep. 157; Barnhart v. Ford, 37 
 Kan. 520; 15 Pac. Kep. 42. 
 
 Thus, an agent who, under orders from his principal, refuses delivery 
 of goods is liable in trover. Singer Mfg. Co. w. King, 14 R. I. 511. ■ 
 
 So, a broker selling cotton for a lessee with constructive notice of a 
 landlord's lien for rent on the cotton, is liable to the landlord for con- 
 version. Merchants' & P. Bank v. Meyer, 56 At. R. 499; 20 S. W. Eep. 406. 
 
442 WRONGS TO POSSESSION AND PROPERTY. 
 
 fully give if he were really entitled to his apparent interest, 
 and being obeyed in the honest (a) belief that he is so 
 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 ah"eady in possession. But this could not be done 
 without overruling accepted authorities (b). 
 
 Kedelivery by bailees . A bailee is prima facie estopped 
 as between himself and the bailor from disputing the bailor's 
 title (c). 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) ( rf ) 
 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 (e). When there are really conflicting claims, the 
 
 (o) Should we say "honest and i59; Barter v. Furlong, 'SI, 2 Ch. 1T2, 60 
 
 reasonable" ? It seeems not; a person L. J. Ch. 368, p. 812, above, 
 
 doing a ministerial act ol this kind (c) 7 Hen. VII. 22, pi. 3, per Martin, 
 
 honestly but not reasonably ooght to be Common learning in modern books, 
 
 liable for negligence to the extent of the id) Middle v. Bond (1865), 6 B. & S. 225, 
 
 actual damage imputable to his negli- 34 L. J. Q. B. 137, where it is said that 
 
 gence, not in trover for the fall value of there must be something equivalent to 
 
 the goods; and even apart from the eviction by title paramount, 
 
 technical effect of conversion, negli- (e) See Sheridan v. Npa Quay Co. 
 
 gence would be the substantial and (186S),4G. B. X. S. 618, 28 L. J. C. P. 5S; 
 
 rational ground of liability. Behaviour European and Australian Royal Mail Co. 
 
 grossly Inconsistent with the common v. Royal Mail Steam Packet Co. (1861), 
 
 prudence of an honest man might here, 30 L. J. C. P. 247; Jessel M. R. in ^.r 
 
 as elsewhere, be evidence of bad faith. parte Davies (1881), 19 Ch. Dlv. 86, 90. 
 
 (fi) See Stephens v. SlwaU, 4 M. & S. 
 
 Eedilivery by bailees. A bailee who, under the bailor's orders, re- 
 fuses delivery to one entitled thereto, as against the bailor, Is liable for 
 conversion. McAnnelly v. Chapman, 18 Tex. 198; Smith v. Bell, 9 Mo. 873. 
 
 A sale of the bailed goods by the bailee terminates the bailment and 
 renders the bailee liable for the conversion. Lovejoy v. Jones, 30 N. H. 
 164; Hagood v. Elson, 21 Tex. 506; FoUett v. Edvfards, 30 HI. App. 386. 
 But when a factor sells his principal's goods with intent to embezzle the 
 proceeds, conversion does not lie. Herron v. Hughes, 25 Cal. 555. But 
 see White v. Wall, 40 Me. 574; Solomon ». Waas, 2 Hilt. 179. 
 
CONVERSION BY BAILEES. 443 
 
 contract of bailment does not prevent a bailee from taking 
 interpleader proceedings {/). This case evidently falls 
 within the principle suggested by Loi'd Blackburn ; but the 
 rules depend on the special character of a bailee's contract. 
 
 Abuse of limited Interest. Where a bailee has an 
 interest of his own in the goods (as in the' common cases 
 of hiring and pledge) and under colour of that interest 
 deals with the goods in excess of his right, questions of 
 another kind airise. 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. 
 
 (/) Rogers v. Lambert, 91, 1 Q. B. 318, 60 L. J. Q. B. 187, following Biddle v. Bond: 
 
 Abuse of limited interest. One who misuses bailed goods or applies 
 them to a purpose at variance with the bailment is liable for conversion. 
 Ripley v. Dolbier, 18 Me. 382; Forbes v. Boston & L. E. Co., 148 Mass. 
 154; Crocker v. Gulliver, 44 Me. 491 ; Erie Dispatch v. Johnson, 3 Pick. 
 (Tenn.) 490; 11 S. W. Rep. 441; Louisville & N. R. Co. v. Lawson, 88 
 Ky. 496; 11 S. W. Rep. 511. But not where the property is destroyed. 
 Harvey v. Epes, 12 Gratt. 153. 
 
 An illustration of frequent occurrence in the cases, is where a person 
 drives a hired horse a greater distance or a different route from the one 
 agreed on. Wheelock ». Wheelwright, 5 Mass. 104; Homer «. Thwing, 
 3 Pick. 492; Lucas v. Trumbull, 15 Gray, 306; Woodman v. Hubbard, 25 
 N. H. 67; Fishc. Ferris, 5 Duer, 49; Freeman v. Boland, 14 R. I. §9; 
 Disbrow v. Tenbroeck, 4 E. D. Smith, 397; Hart v. Skinner, 16 Vt. 138; 
 Perham v. Coney, 117 Mass. 102. But not if the diversion is the result of 
 error. Spooner ». Manchester, 133 Mass. 270; 43 Am. Eep. 14. See 
 Harvey v. Epes, 12 Gratt. 153; Johnson v. Weedman, 5 HI. 495. A person 
 hiring a horse to A. and return without stopping was not held guilty for 
 conversion by stopping. Evans v. Mason, 64 N. T. 98; 5 At. Rep. 766. 
 
 An attempt to sell or mortgage a hired carriage amounts to conversion. 
 FoUett V. Edwards, 30 HI. App. 386. 
 
 An agister of a horse was held not liable for the horse's death, in 
 Johnson v. Weedman, 5 HI. 495. 
 
 A general hirer of a slave who sub- hires without consent of the bailor 
 Is liable for converson. Bell v. Cummings, 3 Sueed (Tenn.), 275. So a 
 carrier who employs a slave. Johnson v. The Arabia, 24 Mo. 86; Scruggs 
 V. Davis, 5 Sneed (Tenn.), 261. 
 
 A factor who ships by water instead of rail, as his principal directs, is 
 liable for conversion. Graves v. Smith, 14 Wis. 5. 
 
444 WRONGS TO POSSESSION AKD PKOPEKTY. 
 
 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 fairer 
 for example destroys or sells the goods (g-). That is a con- 
 version, for it is deemed to be a repudiation of the contract, 
 so that the owner who has parted with possession for a 
 limited purpose is by the wrongful act itself restored to the 
 immediate right of Dosaession, and becomes the effectual 
 •' true owner " capable of suing for the goods or their value. 
 But a merely irregular exercise of power, as a sub- 
 pledge (A) or a premature sale (i), is not- a conversion; 
 it is at most a wrong done to the reversionary interest of 
 an owner out of possession, and that owner must show that 
 he is really damnified (J). 
 
 The technical distinction between an action of detinue or 
 trover and a special action on the case here corresponds to 
 the substantial and permanent difference between a wrong- 
 ful act for which the defendant's rightful possession is 
 merely the opportunity, and a more or less plausible abuse 
 of the right itself. " 
 
 The case of a common law lietl, which gives no power of 
 disposal at all, is different ; there the holder's only right is 
 to keep possession until his claim is satisfied. If he parts 
 with possession, his right is gone, and his attempted dis- 
 posal merely wrongful, and therefore he is ^able for the 
 full value {k). But a seller remaining in possession who 
 re-sells before the buyer is in default is liable to the buyer 
 
 (g) Blackburn J., L. E. 1 Q. B. 6U; tlie majority of the Oonrt, there shonld 
 
 Cooper y. Willomatt, 1 C. B. 672, 14 L. J. not have been indgment lor the defend- 
 
 0. r. 219. It can be a trespass only if the ant : see 2 Wms. Saund. 114 ; Blackborn 
 
 bailment Is at will. J., L. E. 1 Q. B. 617 ; Bramwell L. J., 3 Q. 
 
 (ft) Donald v. Suckling (1866), L. E. 1 B. D. 490. 
 
 Q. E.585,35L.J.Q.B.232. (ft) Miilliner v. Florence (1878), 3 Q. 
 
 (i) Halliday v. Solgate (1868), Ex. Ch. B. Div. 484, 47 L. J. Q. B. 700, where an 
 
 L. B. 3 Ex. 299; see at p. 302, 37 L. J. Ex. Innkeeper sold a guest's goods. A 
 
 174. statutory power of sale was giyen to 
 
 ( j") In Johnson v. Stear (1863), 15 C. B. innkeepers very shortly after this decls- 
 
 N. S. 330, 33 L. J. C. P. 130, nominal Ion (41 & 13 Vict. 0.33), but the principle 
 
 damages were given ; but it is doubtful may sUU be applicable In other cases. 
 whether, on the reasoning adopted by 
 
CONVERSION BY ABUSE OF EIGHTS. 445 
 
 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 (?)• The seller cannot sue the buyer 
 for the price of the goods, and if the buyer could recover 
 the full value from the- seller he would get it without any 
 consideration: the real substance of the cause of action is 
 the breach of contract, which is to be compensated accord- 
 ing to the actual damage (m). A mortgagor having the 
 possession 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 dis- 
 posal of the goods ; and so may assignees claiming through 
 him with no better title fhan-his own; the point being, as 
 "in the other cases, that the act is entirely inconsistent with 
 the terms of the bailment (n). One may be allowed to 
 doubt, with Lord Blackburn, whether these fine distinc- 
 
 (0 Chinery v. ViaU (I860), 5 H. & IT. conferring any possessory right on a 
 
 288, 29 L. J. Ex. 180. This mle cannot third person even as to his own share, 
 
 be applied in favonr of a snb-vendor In Nyberg v. Handelaa/r, '92, 2 Q. B. 202, 
 
 sned for conversion by the ultimate A. had sold. a half share of a raluable 
 
 purchaser, there being no privity chattel to B. on the terms that A. should 
 
 between them: Johnson v. Lanes, and retain possession until the chattel (a 
 
 Yorkshire R. Co. (1878), 3 0. P. D. 499. gold enamel box) could be sold for their 
 
 (m) "A man cannot merely by Chang- common benefit. Afterwards A. let B. 
 
 ing his form of action vary the amount have the box to take it to an auction 
 
 of damage so as to recover more than room. Then B., thus having manual 
 
 the amount to which he is in law really possession of the box, delivered it to Z. 
 
 entitled according to the true facts ol by way of pledge for a debt of his own. 
 
 the case and the real nature of the The Court of Appeal held that Z. had no 
 
 transaction : " per Car. 29 L. J. Ex. 184. defence to au action by A. to recover 
 
 (jj) Fenn v. BUtUston (1851), 7 Ex. 152, the value of his half share. The judg- 
 
 21 L.i J. Ex. 41 ; where see the distinc- menta proceed on the assumption that 
 
 tionsastotrespassandlarcenycarefuUy B., while remaihing owner in common 
 
 noted in the judgment delivered by asto half the property, held thepossessiore 
 
 Parke B. Conieersion as between Co- only as bailee for a special purpose, and 
 
 owners — General tmd Special Prop- his wronglnl dealing with it determined 
 
 er^— The normal rights of co-owners the bailment, and revested A.'s right to 
 
 as to possession and use may be modi- immediate possession: see Fenn v. 
 
 fled by contract. One of. them may thus .Bi«Zes<o», 7 Ex. 153, and similar cases 
 
 have the exclusive right to possess the cited in text. Qu. whether, on the facts, 
 
 chattel, and the other may have tem- B. were even a bailee, or were not rather 
 
 porary possession or custody, as his in the position of a servant having bare 
 
 bailee or servant, without the power of custody. 
 
44(5 WRONGS TO POSSESSION AND PROPERTY. 
 
 tions 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 recover the 
 damage which he actually sustained " (o). Certainly the 
 law would have been simpler, perhaps it would have been 
 juster. It may not be beyond the power of the House of 
 Lords or the Court of Appeal to simplify it even now ; 
 but our business is to take account of the authorities as 
 they stand. And, as they stand, we have to distinguish 
 between — 
 
 (i.) Ordinary cases of conversion where the full value 
 can be recovered : ? 
 
 (ii.) Cases where there is a conversion but only the 
 plaijQtiff's actual damage can be recovered: 
 
 (iii.) Cases where there is a conversion but only nomina', 
 damages can be recovered ; but such cases are 
 anomalous, and depend on the substantial cause 
 of action being the breach of a contract 
 between the parties; it seems doubtful whether 
 they ought ever to have been admitted : 
 
 (iv. ) Cases where there is not a conversion, but an action 
 (formerly a special or innominate action on the 
 case) lies to recover the actual damage. 
 
 Conversion by estoppel. A man may be liable by 
 estoppel as for the conversion of goods which he has rep- 
 resented to be in his possession or control, although in fact 
 they were not so at g-ny time when the plaintiff was entitled 
 to possession {jp). And he maybe liable for conversion by 
 refusal to deliver, when he has had possession and hiis 
 wrongfully delivered the goods to a person having no title. 
 He cannot deliver to the person entitled when the demand 
 is made, but, having 'disabled himself by his own wrong, he 
 
 (0) L. R. 1 Q. B. at p. 614. * (p) saan v. £a/one (1887), 19 Q. B. Div. 
 
 68, 56 L. J Q. B. 415. 
 
TENANTS IN COMMON. 447 
 
 is in the same position as if he still had the goods and 
 refused to deliver (q). 
 
 VI. — Injuries between Tenants in Common. 
 
 Trespasses between tenants in common. As between 
 tenants in common of either land or chattels there cannot 
 be tx'espass unless the act amounts to an actual ouster, i. e. 
 dispossession. Short of that " trespass will not lie by the 
 one against the othet so far as the land is concerned " (r). 
 
 (5) Bristol and W.of JEtigland Bankv. (r) Lord Hatherley, Jacobs v, Seward 
 
 Midland B. Co., '91, 2 Q. B. 653, 65 L. T. (1872), L. E. 5 H. L. 464, 472, 41 L. J. C. P. 
 234, 0. A. 221. 
 
 Trespasses bet'ween tenants in common. Trespass lies for an act- 
 ual ouster of one co-tenant by another. Erwin v. Olmstead, 7 Cow. 
 229; Filbert v. Hoff, 42 Pa. St. 97; McClure v. Thorpe, 68 Mich. 33; 35 
 N. W. Bep. 829; Byam v. Bickford, 140 Mass. 81 ; 2 N. E. Rep. 687. 
 
 As to a tenant in common, acts which if committed by another would 
 be ouster are not so unless capable of no other construction. Parker v. 
 Locks & Canal, 3 Mete. 91. 
 
 There must be an actual hostile adverse possession coupled with 
 notice thereof to the co-tenant. Chandler «. Ricker, 49 Vt. 128; Ball v. 
 Palmers, 81 111. 370; Culver v. Rhodes, 87 N. Y. 848; Noble v. Mc- 
 Farland, 62 111. 226. 
 
 Thus, the purchase of an outstanding title is not ouster, for the pur- 
 chase inures to the benefit of the common title, by implication of law. 
 Jones ». Stanton, 11 Mo. 433; Van Home v._ Stunda, 5 Johns. Ch. 338; 
 Weaver v. Wible, 25 Pa. St. 270; Tisdale v. Tisdale, 2 Sneed (Tenn.), 
 596; Coleman v. Coleman, 3 Dana, 228; Bracken v. Cooper, 80 111. 221; 
 Page©. Branch, 97 N. C. 97; 1 S. E. Rep. 625, Contra, Peck v. Lock- 
 ridge, 97 Mo. 549; 11 S. W. Rep. 246; Clark v. Cregs, 47 Barb. 699. But 
 a conveyance to a stranger adversely to the estate is ouster. Odom u. 
 Weathersbee, 26 S. C. 244; 1 S. E. Bep. 890; Cook v. Clinton, 64 Mich. 
 309; 31 N. W. Rep. 317. 
 
 A mere formal demand of possession by one co-tenant met by a refusal 
 is not ouster. Carpenter v. Menderhall, 28 Cal. 484. Nor is a mere 
 denial of the co-tenant's title. Campan v. Campan, 45 Mich. 367. 
 
 But aliter where the denial is incorporated in an answer to a suit. 
 Greer v. Tripp, 56 Cal. 209. A denial of title coupled with possession 
 professed to be adverse is evidence tending to show ouster. Carpenter 
 V. Gardiner, 29 Cal. 160; Jefcoat v. Knott, 13 Rich. 60; Marcy ». Diver- 
 son, 8 Mete. 544; Mayes v. Manning, 73 Tex. 43; 11 S. W. Bep. 136; 
 
448 WRONGS TO POSSESSION AND PROPERTY. 
 
 In the same way acts of legitimate use of the common 
 property cannot become a conversion through subsequent 
 misappropriation, though the form in which the property 
 exists may be wholly conyerted, 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 en- 
 joyment of the property by both. For every tenant or 
 owner in common is equally entitled to the occupation and 
 use of the tenement or property (s); he can therefore 
 become a trespasser only by the manifest assumption of an 
 exclusive and hostile possession. It was for some time 
 doubted whether even an actual expulsion of one tenant in 
 common by another were a trespass ; but the law was set- 
 tled, in the latest period of the old forms of pleading, that 
 
 (s) Litt. s. 323. 
 
 Bigelow V. Jones, 10 Pick. 161 ; Cummings v. 'Wymaii, 10 Mass. 464. The 
 mere pernancy of profits is not ouster. Higbee v. Elce, 6 Mass. 350; 
 Caldwell v. Neely, 81 N. C. 114; Jones v. Cohen, 82 N. C. 75; McGhee o. 
 Hall, 26 S. C. 179; 1 S. B. Eep. 711; Rodney w. McLaughlin, 97 Mo. 426; 
 9 S. W. Rep. 726; Hampton v. Wheeler, 99 N. C. 222; 6 S. E. Eep. 236; 
 Sontag V. Bigelow, 142 111. 143; 31 N. E. Eep. 674. 
 
 Possession though exclusive will not be an ouster unless there is 
 notice to the tenant of its adverse character. English v. Powell, 119 
 Ind. 98; 21 N. E. Eep. 458. But any long continued series of acts indi- 
 cating an attempt to exclude will amount to ouster. Lebavour v. 
 Howan, 3 Allen, 354. And where the possession is not severable, as of 
 a wharf, the exclusive possession of one co-tenant is ouster. Annelly v. 
 De Saussure, 26 S. C. 497; 2 S. E. Eep. 490. So, as to a right of way 
 exercised by a railroad over a farm held by it as tenant in common . 
 Childs V. Kansas City E. Co. (Mo.), 17 S. W. Eep. 954. So, as to flood- 
 ing joint property. Hutchinson v. Chase, 39 Me. 508; Great Falls Co, 
 V. Worcester, 15 N. H. 412. So, as to moving furniture from house. 
 Keay v. Goodvpin, 16 Mass. 1. See 33 Cent. L. J. 297. 
 
 A tenant may maintain trover against his co-tenant for conversion of 
 chattels. Potter v. Neal, 62 Hun, 158; Flint v. Franzman, 5 N. Y. S. Eep. 
 523; Le Barron v. Babcock, 46 Hun, 598; Id. v. House, 122 N. Y. 153; 25 
 N. E. Eep. 253; Weld ». Oliver, 21 Pick. 559; Lobdell v. Stowell, 51 N. Y. 
 70; Wheeler v. Wheeler, 38 Me. 347; Lewis v. Clark, 59 Vt. 363; 8 At. 
 Rep. 158 ; White v. Phelps, 12 N. H. 382 ; Browning v. Cover, 108 Pa. St. 
 595. Replevin is not maintainable. Busch o. Nestee (Mich.), 36 N. W. 
 Eep. 458. 
 
RULE IN FAVOUR OP. POSSESSION. 449 
 
 it is (<). At first' sight this seems an exception to the rule 
 that a person who is lawfully in possession cannot commit 
 trespass : but it is not so, for a tenant in common has legal 
 possession only of his own share. Acts which involve the 
 destruction of the property held in common, such as dig- 
 ging up and carrying away the soil, are deemed to include 
 ouster (m); unless, of course, the very nature of the 
 property (a coal-mine for example) be such that the work- 
 ing out of it is the natural and necessary course of use and 
 enjoyment, in which case the working is treated as right- 
 fully undertaken for the benefit of all entitled, and there 
 is no question of trespass to property, but only, if dispute 
 arises, of accounting for the proceeds {v). 
 
 VII. — Extended Protection of Possession. 
 
 Kights of de facto possessor agaiust strangers. An 
 
 important extension of legal protection and remedies has 
 yet to be noticed. Trespass and other violations of 
 possessory rights can be committed not only against the 
 
 (.t) Murray v. Sail (1819), 7 C. B. HI, (v) Job v. fotton (1S75), 20 Eq. 84, U L. • 
 
 18 L. J. C. P. 161, and Bigelow L. 0. 343. J. Oh. 262. 
 
 («) WilUtison V. Hay garth (1846), 13 Q. 
 B. 837, 16 L. J. Q. B. 103, Co. Litt. 200. 
 
 Eiglits of de facto possessor against strangers. In any action for the 
 violation of possessory rights, the plaintiff's possession is sufficient 
 against a stranger to the title. Carson v. Prater, 6 Coldw. 565 ; People 
 V. Sherwin, 2 Thomp. & C. 528; Sickles v. Gould, 51 How. Pr. 22; Hebert 
 V. Lege, 29 So. An. 311; Aristland v. Potterfleld, 9 W. Va. 438; Stratton 
 V. Lyons, 53 Vt. 641; Duncan v. Yordy, 27 Kan. 348; Hunt v. Eich, 38 
 Me. 195; Johnson ». Mcllvain, 1 Eice, 368; McCanon v. O'Connell, 7 Cal. 
 152; Barnstable v. Thatcher, 3 Mete. 239; Bogan v. Perry, 6 Wis. 194; 
 EoUins V. Clay, 33 Me. 132. The leading American case on this subject 
 is Gulf, C. & S. F. By. Co. v. Johnson (54 Fed. Bep. 474), in which the 
 plaintiff while occupying land under a lease which was void by legal 
 construction, suffered damages to his crops and other combustibles oy 
 reason of the escape of sparks from the defendant's passing engines. 
 Caldwell, J., in delivering the opinion of the court, said; " As against a 
 wrong-doer, possession is title. The presumption of the law is that the 
 person who has possession has the property, and the law will not permit 
 
 29 
 
450 WRONGS TO POSSESSION AND PROPERTY. 
 
 person who is lawfully in possession, 'but against any 
 person who has legal possession, whether rightful in its 
 origin or not, so long as the intruder cannot justify his act 
 under a better title. A mere stranger cannot be heard 
 to say that one whose possession he has viola;ted was not 
 ; entitled to possess. Unless and until a superior title or 
 justification is shown, existing legal possession is not only 
 presumptive but conclusive evidence of the right" to possess. 
 Sometimes mere detention may be sufficient; but on prin- 
 ciple it seems more correct to say that physical control or 
 occupation is prima facie evidence that the owner 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 possession follow. The 
 practical result is that an outstanding claim of a third 
 party {jus tertii, as it is called) cannot be set up to excuse 
 
 that presumption to be rebutted by evidence that the property was in a 
 third person, when offered as a defense by one who claims no title, and 
 was a wrong-doer. One who goes through the country negligently or 
 Wilfully sejtting fire to people's pastures, haystaclss, and houses will not, 
 when called upon to pay for wrongful act, be heard to say that the legal 
 title to the property destroyed was In a third person, and not In the 
 person who had the actual possession. * » * It was found impossible 
 for all persons to be constantly in possession of their property, and 
 society devised other evidences of title. In most controversies between 
 rival claimants to property, these artificial or legal evidences of title are 
 paramount and the best evidence, and must be produced ; but, as against 
 a wrong-doer claiming no right or title to the property," possession is as 
 potent as it was before any other evidence of title to property was 
 devised or recognized. One cannot burn down another's house over his 
 head, and, when called upon to pay for his wrongful act, reply that the 
 logs out of which the house was built were cut upon the public lands of 
 the United States, and therefore not the plaintiff's property ; or put the 
 plaintiff to the proof of his title to the land upon which the house stood, 
 in the manner that would be necessary in an action of ejectment to recover 
 the land from one in possession." Citing Northern P. R. Co. v. Lewis, 
 51 Fed. Eep. 668; 2 C. C. A. 446; 7 TJ. S. App. 254; and the text. See 
 Wheeler v. Lawson, 103 N. Y. 40; 8 N. E. Eep. 360; Krewson v. Pur- 
 dom, IS Oreg. 663; 11 Pac. Eep. 281; Sherman o. Commercial Ptg. Co., 
 29 Mo. App. 31; Leoncini v. Post, 13 N. Y. S. Rep. 825. But see Eexroth 
 ». Coon, 16 E. I. 35; 23 At. Rep. 37. 
 
ETJLE IN FAVOUR OF TOSSESSION. 451. 
 
 either trespass or conversion: "against a wrong-doer, 
 possession is a title " : " any possession is a legal posses- 
 sion against a wrong-doer " : or, as the Eoman maxim runs, 
 " adversus extraneos vitiosa possessioprodesse solet" (x). 
 As regards real property, a possession commencing by 
 trespass can be defended against a stranger not only by 
 the first wrongful occupier, but by those claiming through 
 him ; in fact it is a good root of title as against every one 
 except the person really entitled (y) ; and ultimately, by 
 the operation 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 faclo possession 
 violiited by the defendant were not only without title, but 
 obviously wrongful. But the rule is in aid of de facto pos- 
 session only. It will not help a claimant who has been in 
 possession but has been dispossessed in a lawful manner 
 and has not any right to possess (z). 
 
 This rule in favour of possessors is fundamental in both 
 civil and criminal jurisdiction. It is indifferent for most 
 practical purposes whether we deem the reason of the law 
 to be that the existing possession is pnma facie evidence of 
 ownership or of the right to possess — " the presumption of 
 law is that the person who has possession has the prop- 
 erty " {a): — or, that for the sake of public peace and 
 
 (X) Ctrdham v. Feat (1801), 1 East, 244, {y) Asher v. Whitlock (1865), L. E. 1 Q. 
 
 246, 6 R. E. 268; Jeffries v. tf. W. R. Co., B. 1,35 L. J. Q. B. 17; cp. Cutis v. Spring 
 
 (1856), 5 E. & B. 802, 25 L. J. Q. B. 107; (1818), 15 Mass. 135, and Bigolow L. 0. 
 
 Bownev.Fosbrooke (1865), 180.B.N.S. 341; and Rosenberg v. Cook, (1881), 8 (J. 
 
 515, 34 L. J. C. P. 164 ; extending the B. Di^ 62,»51 L. J. Q. B. 170, and ace- 
 
 principle of ^rmorj^ V. Delamirie (1722), fartherPoIlockand Wright, op. c«. 95-99. 
 
 1 Str. 504 [505], and In 1 Sm. L. C. ; D. 41. («) Buckley v. Gross (1863), 3 B. * S. 
 
 3, de poBS. 53, of. Paulas Sent. Eeo. v. 11 566, 32 L. J. Q. B. 129. 
 
 §2: "snfflcitad probationem si rem cor- (a) Lord Campbell C. J. in Jeffries y. 
 
 poraliter teneam." And such use and G. W. It. Co. (1856), 5 E. &B. at p. 806, 
 
 enjoyment as the nature of the subject- 25 L. J. Q. B. 107; but this does not seem 
 
 matter admits of is good evidence- of consistent with the protection of even a 
 
 possession. See Hfirper v. Charlesworth manifestly wrongful possessor ugalnst a 
 
 (1825), 4 B. & 0. 574, and other authorl- new extraneous wrong -doer. In Komari 
 
 tics collected in Pollock and Wright on law a thief has the interdicts though not 
 
 Possession, 31-35. the actio furti, which requires a lawful 
 
452 WRONGS TO POSSESSION AND PROPERTY. 
 
 security, and as " an extension of that protection which 
 the law throws around the person " (6), the existing pos- 
 session is protected, without regard to its origin, against 
 all men who cannot make out a better I'ight: — or say (c) 
 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 effectually without pro- 
 tecting wrongful possessors also. Such considerations may 
 be guides aud aids in the future development of -the law,^ 
 but none of them will adequately explain how or why it 
 came to be what it is. 
 
 Kights of owner entitled to resume possession. Again, 
 as de facto possession is thus protected, so de jure pos- 
 session — if by that term we may designate an immediate 
 right to possess when separated from actual legal pos- 
 session — was even under the old system of pleading in- 
 vested 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 stranger. Such is the case of a landlord 
 where the tenancy is at will (d), or of a bailor where the 
 bailment is revocable at will, or on a condition that can be 
 
 Inteieet in the plaintiff ; in the common Law " takes a view ejusdem generis, but 
 
 law It seems that he can maintain distinct. 
 
 trespass. (c) AVlth Iherlng (Grand des Besit- 
 
 (6) lord Denman C. J. in Rogers v. zesschutzes, 2d ed. 1S89). Cp. the same 
 
 Spence (1844), 13 M. & W. at p. 581. This author's " Der Besitzwille," 1869. 
 is precisely Savigny'a theory, which (d) Bro. Ab. Trespas, pi. 131 ; 19 Hen. 
 
 however is not now generally accepted VI. 45, pi. 94, where it is pointed out that 
 
 ,by students oi Roman Law. In some thetrespasser'sactisone.buttheoauses 
 
 respects if flts the common law better. of action are " diversis respectibus," as 
 
 Mr. Justice Holmes in " The Common where a servant is beaten and the master 
 
 has an action for loss ol service. 
 
 Eights of owner entitled to resume possession. Supporting the text, 
 vide, Lunt v. Brown, 13 Me. 236; Staples v. Smith, 48 Me. 471; Mason 
 ». Lewis, 1 Greene (la.J, 494; Pool v. Mitchell, 1 Hill (S. C.)> 404! 
 Snylier v. Myers, 3 W. A. 195, and authorities cited, aiUe, p. 310. 
 
 A landlord may maiatain trespass although the tenant is in possession. 
 Fitch V. Grosser, 54 Mo. 267. Contra, Wentwdrth v. Portsmouth & D. R. 
 
RIGHT TO RESUME POSSESSION. 453 
 
 satisfied at will , which last case includes that of a trustee 
 of chattels remaiuing in the control and enjoyment of the 
 cestui que trust, for the relation is that of bailment at will 
 as regards the legal interest (e). In this, way the same act 
 may be a trespass both against the actual possessor and 
 against the person entitled to resume possession. " He 
 who has the property may have a writ of trespass, and he 
 who has the custody another writ of trespass " (/). " 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 " (d). 
 And a lessor or bailor at will might have an action of tres- 
 pass vi et armis against the lessee or bailee himself where 
 the latter had abused the subject-matter in a manner so 
 inconsistent with his contract as to amount to a determina^ 
 tion of the letting or bailment. " If tenant at will commit 
 voluntary waste, as in pulling down of houses, or in felling 
 of trees, it is said that the lessor shall have an action of 
 trespass for this against the lessee. As if I lend to one my 
 sheep to tathe his land, or my oxen to plow the land, and 
 he killeth my cattle, 1 may well have an action of trespass 
 against him nothwithstanding the lending " (gr). 
 
 An exclusive right of appropriating things in j\'hich 
 property is acquired only by capture is on the same footing 
 in respect of remedies as actual possession (h). 
 
 Rights of derivative possessors. Derivative possession 
 equally protected, through whatever number of removes 
 
 IS 
 
 (e) See Barker t. Parlong, '91, 2 Ch. " conoerneth so mach the freehold and 
 
 172, GO L. J. Ch. 368. Inheritance, as it doth amount In law to 
 
 (/) 48 Ed. III. 20, pi. 8. a determination of his will." 
 (g) Lltt. a. 71. H any donbt be im- (7^) Bolford v. BaMey (1849), 13 Q.'b. 
 
 plied in Littleton's "It is said," Coke's 426, 18 L. J. Q. B. 109, Ex. Ch. 
 commentary removes it. Snch an act 
 
 Co,, 55 N. H. 540; Lindenbower v. Bentley, 86 Mo. 515; Delaney t>. Erick- 
 son, 10 Neb. 492. The landlord of a tenant at will may maintain trespass. 
 O'Brien ». Cavanaugh, 61 Mich. 368 ; 28 N. W. Rep. 127. 
 
454 WKONGS TO POSSESSION AND PROPERTY. 
 
 it may have to he traced from the owner in possession, who- 
 (by modern lawyers at any rate) is assumed as the normal 
 root of title. It may happen that a bailee delivers lawful 
 possession to a third person, to hold as under-bailee from 
 himself, or else as immediate bailee from the true owner: 
 nay 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 subor- 
 dinate right derived from his own bailee (i). 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. 
 
 Possession derived througli trespasser. 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 bis right. One who receives 
 from a trespasser, even with full knowledge, does not him- 
 self become a trespasser against the true owner, as he has 
 not violated an existing lawful possession {j). The best 
 proof that such is the law is the existence of the offence of 
 receiving stolen goods as distinct from theft; if receiving 
 from a trespasser made one a trespasser, the receipt of 
 stolen goods with the intention of depriving the true owner 
 of them would have been larceny at common law. Simi- 
 
 (i) Roberts v. Wyatt (1810), 2 Tannt. (j) W^«s<m v. iarfter (1833), 4 B. & Ad. 
 
 268, 614. 
 
 Possession derived through trespassers. The true owner of goods 
 may recover them from the assignee of one who obtains them by fraud. 
 Artman v. Walton, 12 Pliila. Eep. 442. Though there can be but one 
 satisfaction trover lies against successive conversioners of the same 
 property. Mathews v. Menadger, 2 McLean, 145. And against bonuficle 
 purchasers from the original trespassers.. Eiley v. Boston Water 
 Power Co., 11 Cush. 11; Champney ». Smith, 15 Gray, .512; Everett ». 
 Coffin, 6 Wend. 603; HofEman v. Carow, 22 Wend. 285; Spraights v. 
 Hawley, 89 N. Y. 441 ; Garard v. Pittsburgh etc. R. Co., 29 Pa. St. 154. 
 
POSSESSION THROUGH TRESPASS. 455 
 
 larly 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 (k). 
 
 The old law of real property was even more favourable 
 to persons claiming through a disseisor ; but it would be 
 useless to give details here. At the present day the old 
 forms of action are almost everywhere abolished; and it 
 is quite certain that the possessor under a wrongful title, 
 even if he is himselfacting in good faith, is by the common l 
 law liable in some form to the true owner (I), and in the \ 
 case of goods must submit to recapture if the owner can 
 and will retaiie them (»i). 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 possession he disturbed : though as regards 
 land exceptions to this principle, the extent of which is not 
 free from doubt, were introduced by the doctrine of ' ' entry 
 by relation" and the practice as to recovery of mesne 
 profits. But this too is now, as regards civil liability, a 
 matter of mere curiosity (n). 
 
 (4) 27 Hen. VII. 39, pi. 49 ; cp. 16 Hen. privity of wrongful estate between an 
 
 VII. 2, pi. 7; Metmie y. Blaka (1856), 6 B. original trespasser and persons claim- 
 
 & B. 842, 25 L. J. Q. B. 399. Ing throngh him, and thus applied the 
 
 (I) 12 Edw. IV. 13, pi. 9; but this was doctrine of continuing trespass to sucn 
 probably an innovation at the time, for persons; and this would perhaps have 
 Brian dissented. The action appears to been the more logical course. But the 
 have been on the case for spoiling the natural dislil:e of the judges to multi- 
 goods, plying capital felonies, operating on the 
 
 (irt) See Blades v. Hlggs (1865), 11 H. intimate connexion between trespass 
 
 L. C. 621, 34 L. J. 0. P. 286, where this and larceny, has in several directions 
 
 was assumed without discussion, only prevented the law of trespass from be- 
 
 the question of property being argued. ing logical. For the law of trespass to 
 
 But probably that case goes too far in land as aifected by relation, see Jiarnett 
 
 allowing recapture by force, except per- v. GvXldford (1855), 11 Ex. 19, 24 L. J. Ex' 
 
 haps on fresh pursuit : see p. 340, below. 280 ; Anderson v. Badcliffe (1860), Ex. Ch., 
 
 (K) The common law might cohceiv- E. B. & E. 819, 29 L. J. Q. B. 128, and 
 
 ably have held that there was a kind of Blgelow L. 0. 361—370. 
 
456 WEONGS TO POSSESSION AND PROPERTY. 
 
 I 
 tf' 
 
 VIII. — Wrongs to basements, etc. 
 
 Violation of incorporeal rights. Easements and other 
 incorporeal rights in property, " rather a fringe to property 
 than property itself " as they have been ingeniously- 
 called (o)r are not capable in an exact sense of being pos- 
 sessed. The enjoyment which may in time ripen into an 
 easement is not possession, and gives no possessory right 
 before the due tifiie is fulfilled: " a man who has used a 
 way ten years without title cannot sue even a stranger for 
 stopping it" (p). 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 ease- 
 ments and the like, as completely existing rights of use and 
 enjoyment, is a wrong in the nature of trespass, and 
 remedia,bje by action without auy allegation or proof of 
 specific damage {q); the action was on the case under the 
 old forms of pleading, since trespass was technically im- 
 
 (o) Mr. Gibbons, Preface to the fifth (g-) 1 Wms. Saund. 626; Barrop v 
 
 edition of Gale on Easements, 1876. JSirst (1868), L. R. i Ex. 43, 46, 88 L. J. 
 
 (p) Holmes, The Common Law, 240, Ex. 1. 
 
 Violation ol inoorporeal rlgbts. Possession for less than the prescrip- 
 tive period will not raise the presumption of an easement by grant, and 
 the possession must be continuous. Sargent v. Ballard, 9 Pick. 251; 
 Gloucester v. Beach, 2 Id. 60, n; Medford v. Pratt, 4 Id. 222; Gayetty ». 
 Bethune, 14 Mass. 49, 55; Parker v. Foote, 19 Wend. 309; Luce v. Carley,. 
 24 Id. 461 ; Kirschmer v.. Western & A. K. Co., 67 Ga. 760 ; Claflin v. 
 Boston & A. B. Co., 157 Mass. 489; 82 N. E. Rep. 659; Texas & W. E. Co. 
 V. Wilson (Tex.), 18 S. W. Rep. 352. 
 
 An action of trespass cannot be brought for the interference with a 
 right to carry water over a grantor's land. Baer v. Martin, 8 Blackf . 317. 
 But in Massachusetts a few similar rights are made real property by 
 statute and such action can be maintained, Jackson v. Rounseville, 5 
 Mete. 127. Generally, trespass lies for the disturbance of rights in 
 incorporeal hereditaments, though practically these interferences are 
 usually continuous in nature and best remedies in equity. See Tranger 
 V. Sassaman, 14 Fa. St. 514. 
 
WRONGS TO EASEMENTS, ETC. 457 
 
 possible, 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 pf rights 
 in re aliena is in effect to consider the nature and extent of 
 the rights themselves (r), and this does not enter into our 
 plan, save so far as such matters come under the head of 
 Nuisance, to which a separate chapter is given. 
 
 Franchises and incorporeal rights of the like nature, as 
 patent and copyrights, present something more akin to 
 possession, for their essence is exclusiveuess i and indeed 
 trespass was the proper remedy for the disturbance of a 
 strictly exclusive right. " Trespass lies for breaking and 
 entering a several fishery, though no fish are taken." And 
 so it has always been held of a free warren (s). But the 
 same remark applies ; in almost every disputed case the 
 question is of defining the right itself, or the conditions of 
 the right (r) ; and de facto enjoyment does not even pro- 
 visionally create any substantive right, but is material only 
 as an incident in the proof of title. 
 
 IX. — Grounds of Justification and Excuse. 
 
 Iiicence. Acts of interference with land or goods may 
 be justified by the consent of the occupier or owner; or 
 they may be justified or excused (sometimes excused rather 
 than justified, as we shall ^ee) by the authoi-ity of the law. 
 That consent which, without passing any interest in the 
 
 (r) I'oMsBopUnsy.G.N. R. Co. il877), Angm, or to define the franchise of n 
 
 2 Q. B. Dlv. 224, 16 L. J. Q. B. 265, sets ferry or market. Again the later case of 
 
 bounds to the exclusive right conferred Attorney- General v. Homer (1885) ,11 App. 
 
 by the franchise of a ferry, and Saltan Ca. 66, 55 L,. J. Q. B. 193, Interprets the 
 
 V. Angus (1881), 6 App. Ca. 740, 50 L. J. grant of a market-in eive juxta quodam 
 
 Q. B. 689, discusses with the utmost ful- loco, on an information alleging en- 
 
 ness the nature and extent ol the right croachment on public ways by the lessee 
 
 to lateral support for buildings. Both of the market, and claiming an injanc- 
 
 decislons were giren In form, on a claim tion. 
 
 for damages from alleged wrongful acts. (s) Holford v. Bailey, Ex. Oh. (1848-9), 
 
 Yet it Is clear that a work on Torts is 13- Q. B, 426, 18 L. J. Q. B. 109. See the 
 
 not the place to consider the many and authorities collected in argument, S. C. 
 
 diverse opinions expressed in Dalton y. in court below, 8 Q. B. at p. 1010. 
 
458 WRONGS TO POSSESSION AND PROPEETr. 
 
 property to which it relates, merely prevents the acts for 
 which consent is given from being wrongful, is called a 
 licence. There may be licences not affecting the use of 
 property at all, and on the other hand a licence may be so 
 connected with the transfer of property as to be in fact 
 inseparable from it. 
 
 " A dispensation or licence properly passeth no interest, 
 nor alters or transfers property in anything, but only 
 makes an action lawful, which without it had been unlaw- 
 ful. As a licence to go beyond the seas, to hunt in a 
 man's park, to come into his house, are only actions which 
 without licence had been unlawful. But a licence to hunt 
 in a man's park and carry away the deer killed to his own 
 use, to cut down a tree in a man's ground, and to carry it 
 away the next day after to his own use, are licences as to 
 the acts of hunting and cutting down the tree, but as to the 
 carrying away of the deer killed and tree cut down they 
 are grants. So to licence a man to eat my meat, or to fire 
 the wood in my chimney to warm him by ; as to the actions 
 of 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 dispensation or licence 
 may destroy and alter property " (m). 
 
 Cm) Vaughan C J., Thomas v. SorreU, Vaaghan, 351. 
 
 License. License is permission or authority. It Is a defense to tres- 
 pass. With reference to real estate " A license is an authority or power 
 to make use of land in some speciflc way, or to do certain acts or series 
 of acts upon the land of another.'' Tiedeman's Real Property, § 651, citing 
 Cools V. Stearn^s, ll Mass. 533; Mumford v. "Whitney, 15 Wend. 380; 
 Blaisdell u. Railroad, 51 N. H. 485. See Lawrence u. Springer, 49 N. J. 
 Eq. 289; 24 At. Rep. 933; Cahoon v. Bayard, 128 N. Y. 298; 25 N. E. Rep. 
 376; Silby v. Trotter, 29 N. J. Eq. 228; Pursell v. Stover, 100 Pa. St. 43; 
 20 At. Rep. 403; Baker v. Boston, 12 Pick. 184; Driscoll v. Marshall, 
 15 Gray, 62; Van Deusen v. Young, 29 N. Y. 9; Chynoweth o. Tenney, 
 10 Wis. 397. 
 
LICENSE AND INTEREST. 459 
 
 Revocation of licence : distinction when coupled with 
 interest. Generally speaking, a licence is a mere voluntary 
 suspension of the licensor's right to treat certain acts as 
 wrongful, comes to an end by any transfer of the property 
 with respect to which the licence is given (u), and is 
 revoked by signifying to the licensee that it is no longer 
 the licensor's will to allow the acts permitted by the 
 licence. The revocation of a licence is in itself no less 
 effectual though it may be a breach of contract. If the 
 owner of land or a building admits people thereto on pay- 
 ment, as spectators of an entertainment or the like, it may 
 be a breach of contract to require a person who has duly 
 paid his money and entered to go out, but a person so 
 required has no title to stay, and if he persists in staying 
 
 f») Wallis y. Barrison (1838), i M. & W. 538, 8 L. J. Ex. 44. 
 
 Revocation of license: distinction -when coupled with interest. 
 Ordinarily a license is revokable at will. Houston ?>. Laffe, 46 N. H. 
 506; Carleton v. Bedington, 21 N. H. 291; Hetfleld v. Central R. Co., 29 
 N. J. L. 571 ; Kimble v. Yates, 14 III. 464; Jameson v. Milliman, 3 Duer, 
 255; Duineen v. Rich, 22 Wis. 650; White v. Manhattan Ry. Co., 63 
 Hun, 634; 18 H. T. S. Rep. 396; Giles v. Simonds, 15 Gray, 441; Burton 
 V. Scherfe, 1 Allen, 133; Allen v. Fiske, 42 Vt. 462; Eckerson ». Crippen^ 
 110 N. Y. 585; 18 N. E. Rep. 443; Owen v. Eield, 12 Allen, 457; Kremer 
 V. Chicago, etc., Ry. Co., 51 Minn. 15; 52 N. W. Rep. 977; Cronkhite v. 
 Cronkhite, 94 N. Y. 323; Fargis v. Walton, 107 N. Y. 399; 14 N. E. Rep. 
 303 ; Totel v. Bonnefoy, 123 111. 653 ; 14 N. E. Rep. 687 ; How v. Searing, 6 , 
 Bosw. 354; Lake Erie & W. Ry. Co. v. Kennedy, 132 lnd.274; 31 N. E. 
 Rep. 943; Baynero. Nugent, 60 Md.516; Parish v. Kaspare, 109 Ind. 586. 
 
 But if the license amounts to a legal grant it is irrevocable. Bracken v. 
 Rnshville, etc., R. Co., 27 Ind. 346; Collins Co. v. Marcy, 25 Conn. 239; 
 Rogers o. Cox, 96 Ind. 157; Bingham?;. Salene, ISOreg. 208; Nettletou 
 V. Sikes, 8 Mete. 34; Claflin v. Carpenter, 4 Mete. 680; Hetfleld 
 V. Central R. Co., 29 N. J. L. 571; Lewis v. McNatt, 65 N. C. 63; 
 White V. Elwell, 48 Me. 360; Goff v, ObertenfEer, 3 Phila. Rep. 
 71; Douglas v. Shumway, 13 Gray, 498. Thus, in Johnson v. Skill- 
 man (29 Minn. 97; 12 N. W. Rep. 149), the court said: "In some 
 cases where the license is connected with a valid grant, as of chattels or 
 fixtures, upon the land of the licensor, susceptible of being removed, it 
 is subsidiary to the right of the property, and irrevocable to the extent 
 necessary to protect the licensee, and saves to him the right of entry — 
 the right of possession following the right of property." 
 
460 WRONGS TQ POSSESSION AND PROPERTY. 
 
 1 
 
 he is a trespasser. His only right is to sue on the con- 
 tract (ar) : when, indeed, he may get an injunction, and so 
 be indirectly restored to the enjoyment of the licence (y). 
 But if a license is part of a transaction whereby a lawful 
 interest in some property, besides ^at which is the imme- 
 diate subject of the licence, is conferred on the licensee^ 
 and the licence is necessary to his enjoyment of that 
 interest, the licence is said to be " coupled with an inte- 
 rest " and cannot be revoked until its purpose is fulfilled : 
 nay more, where the grant obviously cannot be enjoyed 
 without an incidental licence, the law will annex the 
 necessary licence to the grant. "A mere licence is 
 revocable ; but that which is called a licence is often 
 soitnething more than a licence ; it often comprises or 
 is connected with a grant, and then the party who has 
 given it cannot in general revoke it so as to defeat his 
 grant to which it was incident " (»). 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 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 pur- 
 pose has elapsed (a). The diversity to be noted between 
 licence and grant is of respectable antiquity. In 1460 the > 
 defendant in an action of trespass set up a right of com- 
 mon ; the plaintiff said an excessive number of beasts were 
 .put in; the defendant said this was by licence of the 
 i plaintiff, to which the plaintiff said the licence was revoked 
 ■ before the trespass complained of : Billing, then king's 
 
 ix) Wood T. LeadUtter (18i5), 13 M. & 564. The reasoning is perhaps open to 
 
 W. 838, 14 L. J. Ex. 161 ; Byde v. Oralum, criticism : see L. Q. E. v. 99. 
 (1862), 1 H. & 0. 593, 32 L. J. Ex. 27. A {y) See Frogley v. Earl of Lovelace 
 
 contract to carry passensers does not (1859), Joh. 833, where, however, the 
 
 constitute or include a licence so as to agreement was treated as an agreement 
 
 let In this doctrine, though part or the to execute a legal grant, 
 whole of the journey may be on land (s) Wood v. LeadMMer, 13 M. & W. 838, 
 
 belonging to the railway company or 844,-UL. J. Ex. 161. 
 other carrier: Butler v. M. S. ^ L. B. (o) SeefurtherZWms.Saund. 363-865, 
 
 Co. (1888), 21 Q. B. Dlv. 207, B7 L. J. Q. B. or Oooley on Torts, 51. 
 
LICENSE AND INTEREST. 461 
 
 Serjeant, afterwards Chief Justice of the King's Bench 
 under Edward IV., argued that a licence may be revoked 
 at will even if expressed to be for a term, and this seems 
 to have so much impressed the Court that the defendant, 
 rather than take the risk of demurring, alleged a grant : 
 the reporter's note shows that he thought- the point new 
 and interesting (6). 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 (c). 
 
 Executed licences. Again, if the acts licensed be such 
 as have permanent results, as in altering the condition of 
 land belonging to the licensee in a manner which, but for 
 the licence, would be a nuisance to adjacent land of the 
 licensor ; there the licensor cannot, by merely revoking the 
 licence, cast upon the licensee the burden of restoring the 
 former state of things. A licence is in its nature revoc- 
 able (d), but the revocation will not make it atrespass to 
 leave things as the execution of the licence has made them. 
 In this sense it is said that " a licence executed is not 
 countermandable " (e). When a licence to do a particular 
 thing once for all has been executed, there is nothing leff 
 to revoke. 
 
 (5) 39 Hen. VI. 7 pi. 12. (e) Winter v. Brockwell (1807), 8 East, 
 
 (c) CornisA V. 5^«m66s (1870), L. E. 5 O. 308. Thisclassof cases 1§ expressly rec- 
 
 P. SM.WIj. J. CB.iai; Malory. Watlims ognized and distinguished in WoodT. 
 
 (1874), L. E. 9 Q. B. 400. LeadUtter, 13 M. & W. at p. 855. 
 {d) Wood y. Leadbiiter, note (re), last 
 
 page. 
 
 Executed licenses. In the United States the authorities are not uni- 
 form upon the question as to the right of a licensor to exercise the 
 power of revocation where the licensee in pursuance of the license has 
 expended money and incurred binding obligations. 
 
 Bach case necessarily depends upon its own circumstances. It is estab- 
 lished that for a sufficient cause a revocation may be enjoined by a court 
 of equity.. See School District v. Lindsay, 47 Mo. App. iSi ; Harlan v, 
 Logansport Nat. Gas Co., 133 Ind. 323; 32 N. E. Rep. 930; White v. 
 
462 WKOxas to possEssioJf and i-koperty. ■ 
 
 Whethet and how far the licensor can get rid of the con- 
 sequences if he mislikes them afterwards is another and dis- 
 tinct inquiry, which can be dealt with only by considering 
 what those consequences are. He may doubtless get rid of 
 them at his own charges if he lawfully can ; but he cannot 
 call on the licensee to take any active steps unless under 
 some right expressly created or reserved. 
 
 For this purpose, therefore, there is a material difference 
 between " a licence to do acts which consist in repetition, 
 as to walk in a park, to use a carriage-way, to fish in the 
 waters of another, or the like," which may be counter- 
 manded without putting the licensee in any worse position 
 than before the licence was granted, and " a licence to 
 construct a work which is attended with expense to the 
 party using the licence, so that, after the same is counter- 
 manded, the party to whom it was granted may sustain a 
 
 Manhattan Ry. Co., 139 N. Y. 19; 34 N. E. Rep. 887; Brauns v. Glesige, 
 130 Ind. 167; 29 N. E. Rep. 1061; Saucer v. Keller, 129 Ind. 475; 28 N. E. 
 Rep. 1117; Crousdale v. Iianigan, 59 Han, 620; 13 N. Y. S. Rep. 31; 
 Grimshaw v. Belcher, 88 Cal. 217; 26 Pac. Rep. 84; Flickinger v. Shaw, 
 87 Cal. 126; 25 Pac. Rep. 268; Barnes v. Barne.=, 6 Vt. 388; Ashman o. 
 Williams, 8 Pick. 402; "Williams v. Flood, 63 Mich. 487; Nowlin v. 
 Whipple, 79 Ind. 481; Campbell v. Indianapolis etc. R. Co., 110 Ind. 490; 
 Morse v. Copeland, 2 Gray, 302; Baker v. Chicago etc, R. Co., 57 Mo. 
 265; Southwestern R. Co. v. Mitchell, 69 Ga. 114^ Morse v. Copeland, 2 
 Gray, 302; HnfE v. McCanley, 53 Pa. St. 206; Rhodes v. Otis, 33 Ala. 578; 
 Fuhr ». Dean, 26 Mo. 116. 
 
 Equity will enforce the future enjoyment of a license executed in part 
 where money has been expended and fixtures erected on its faith. Snowden 
 0. Wilas, 19 Ind. 10; Stephen v. Brown, 19 Ind. 367; Cook v. Pridgen,45 
 Ga. 331 ; Lee v. McLead, 17 Nev. 280 ; Gibson v. St. Louis A. & M. Assoc, 
 33 Mo. App. 165; Grimshaw ». Belcher, 88 Cal. 217; 26 Pac. Rep. 84; 
 Wilson V. Chalfant, 15 Ohio, 248; Rerick v. Kern, 14 Serg. & R. 267; 
 Risien v. Brown, 73 Tex. 135; Lane v. Miller, 27 Ind. 534. 
 
 But in other well-considered cases the power of revocation is held to 
 be absolute. Jackson & Sharp Co. v. Philadelphia etc. R. Co., 4- Del. 
 Ch. 180; Lake Erie & W. Co. v. Michener, 117 Ind. 465; 20 N. E. Rep! 
 254; Kevlrt^;. McKeithan, 90 N. C. 106; St. Louis Stock Yards o. Wiggins 
 Ferry Co., 112111.384; WUliams ». Morrison, 32 Fed. Rep. 177; Ketchum 
 V. Newman, 4 Daly, 57; 22 N. E. Rep. 1052. See cases cited, ante, 
 p. 330. 
 
LICENSE AND INTEREST. 463 
 
 heavy loss " (/). And this rule is as binding on a licen- 
 sor's successors in title as on himself (g). But it is not 
 applicable (in this country at any rate) to the extent of 
 creating in or over land of, the licensor an easement or 
 other interest capable of being created only by deed (h). 
 
 In those cases, however, the licensee is not necessarily 
 without remedy, for the facts may be s,uch as to confer on 
 him an interest which can be made good by way of equit- 
 :ible estoppel («'). This form of remedy has been exten- 
 sively applied in the United States to meet the hardship 
 caused by untimely revocation of parol licences to erect 
 dams, divert water-courses, and the like (_/). 
 
 The case of a contract to grant an easement or other ■ 
 interest in land must be carefully distinguished when it 
 occurs (k). 
 
 Expression of licensor's will. The grant or revocation 
 of a licence may be either by express words or by any act 
 
 (/) Iiigginsv. 7n^e{1831),7 Bing. 682, peartobesnffioientlydistlugnished. Cp. 
 
 694, per car. McMamis v. Cooke (1887), 35 Oh. D. 681, 
 
 ig) Ibid. 696, per Kay J. ; 56 L. J. Oh. 662. 
 
 (ft) Wood V. ZeadbUter, p. 331, above; (f) Cooley on Torts, 307-310. It seems 
 
 Saffeyy.Senderson(iS51),nQ.li.S7i,21 to have sometimes been thought in 
 
 I/. J. Q. B. 49; HevMt v. Itham (1851), 7 America that the only difficulty arises 
 
 Ex. 77, 21 li. J. Ex. 35 (showing that con- from the Statute of Frauds, which is of 
 
 versely what purports to be a reservation course a mistake : . Wood v. Leiidhitter, p. 
 
 in a parol demise may operate as a 331, above. The limits of the doctrine 
 
 licence). are in this country fixed by Itamaden v. 
 
 (i) See Plimmerv. Mayor of Wellington, Dyson (1866), L. B. 1 H. L. 129. 
 
 iV. Z. (1884), 9 App. Ca. 699, 53 L. J. P. 0. (*) See SmaH v. Jones (1864), 33 L. J. 
 
 104, where the two principles do not ap- C. P. 164. 
 
 Expression of licensor's wHI. Agreeing with the text, vide, Kay v. 
 Penn. R. Co., 65 Pa. St. 273; Martin v. Hoaghton, 45 Barb. 60; Adams v. 
 Truman, 12 Johns. 408; Sterling v. Warden, 51 N. H. 231; Lakin v. 
 Ames, 10 Cash. 198; Cutler v. Smith, 57.111. 252; Fletcher v. Eveans, 140 
 Mass. 241 ; Harmon v. Harmon, 61 Me. 222. 
 
 The mere use of land by the licensor in a manner incompatible with the 
 license terminates the license without notice. Simpson v. Wright, 21 
 HI. App. 67; Wilson v. St. Paul etc. E. Co., 41 Minn. 56; 42 N. 
 W. Rep. 600. It is also terminated by the transfer of the prop- 
 erty. Drake v. Wells, 11 Allen, 141; Prince v. Case, 10 Conn. 382; Jen- 
 kins V. Lykes, 19 Pla. 146 ; Maxwell v. Bay City etc. Co., 41 Mich. 463 ; 
 
464 WEONGS TO POSSESSION AND PEOPERTY. 
 
 sufficiently signifying the licensor's will ; if a man has leave 
 and licence to pass through a certain gate, the licence is as 
 effpctually revoked by locking the gate as by a formal 
 notice (I). In the common intercourse of life between 
 friends and neighbours tacit licences are constantly given 
 and acted upon. 
 
 Distinction from grant as regards strangers. We 
 
 shall have something to say in another connexion (m) of 
 the rights — or rather want of rights — of a " bare licen- 
 see." Here we may add that a licence, being only a per- 
 sonal right — or rather a waiver of the liceiisor's rights — 
 is not assignable, and confers no right against any third 
 person. If a so-called licence does operate to confer an 
 exclusive right capable of being protected- against a 
 stranger, it must be that there is more than a licence, 
 namely the grant of an interest or easement. And the 
 question of grant or licence may further depend on the 
 question whether the specified mode of use or enjoyment is 
 known to the law as a substantive right or interest (n): 
 a question that may be difficult. 'But it is submitted that 
 
 (0 See Syde v. Graham, note (a) , p. Q. B. Div. 155, 52 L. J. Q. B. 445 ; and see 
 
 331, Gale on Easements, 5th ed. 315. Contra 
 
 (m) Chap. xn. below, ad fin. the learned editors of Smith's Leading 
 
 (») Compare NutUUl v. BraceueU Oases, in the notes to Armory v. Detam- 
 
 (1866), L. E. 2 Ex. 1, 36 L. J. Ex. 1, with trie. 
 
 Ormerod v. Todmorden Mill Co. (1883), 11 
 
 Giles B. Simonds, 15 Gray, 441 ; Dark v. Johnson, 55 Pa. St. 164 ; Whitaker 
 V. Cauthorne, 3 Dev. L. 389 ; Hoax v. Seat, 26 Mo. 178 . Or, by the death 
 of the licensor. Putney ». Day, 26 N. H. 430; Eggleston v. New York & 
 C. B. Co., 35 Barb. 162; Carter v. Harlan, 6 Md. 20; Jenkins o. Lykes, 19 
 Fla. 148; 45 Am. Rep. 19. 
 
 Dlstimstlon from grant as regards strangers. A license is personal 
 as between the parties and cannot be transferred by the licensee. Gron- 
 endyke v. Cramer, 2 Ind. 382; Carleton v. Redington, 21 N. H. 291; 
 Buggies V. Lesure, 24 Pick.'187; Harris v. Gillingham, 6 N. H. 9; Paine 
 V. Northern P. E. Co., 14 Fed. Bep. 407; Beinmiller o. Skidmore, 7 Lans. 
 161; Jackson v. Babcock, 4 Johns. 418; Mendenhall v. Klinck, 51 N. Y. 
 246; De Haro v. U. S., 5 Wall. 599; Webb v. Walker, 31 Pa. St. 46; 
 Blaisdell v. Eailroad, 61 N. H. 485. 
 
JUSTJFICATION BY LAW. 465 
 
 on principle the distinction is clear. I call at my friend's 
 house ; a contractor who is doing some work on adjacent 
 land has encumbered nay 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 (o), but only because a 
 stranger cannot justify that which the occupier himself 
 could not have justified. The license is material only as 
 showing that I was not a wrong-doer myself ; the complaint 
 is founded on actual and specific injury, not on a quasi 
 trespass. Our law Of trespass is not so eminently reason- 
 able that one need be anxious to extend to licensees the 
 very large rights which it gives to owners and occupiers. 
 
 Justification by law. As to justification by authority of 
 the law, this is of two kinds: 
 
 1. In favour of a true owner against a wrongful posses- 
 sor; under this head come re-entry on land and retaking of 
 goods. 
 
 2. In favour of a paramount right conferred by law 
 against the rightful possessor ; which may be in the execu- 
 tion of legal process^ in the assertion or defence of private 
 right, or in some cases by reason of necessity. 
 
 Re-entry: herein of forcible entry. A person entitled 
 to the possession of lands or tenements does no wrong to 
 the person wrongfully in possession by entering upon him; 
 and it is said that by the old common law he might have 
 entered by force. But forcible entry is an offence under the 
 statute of 5 Ric. II. (a. d. 1381), which provided that 
 " none from henceforth make any entry into any lands and 
 tenements, but in case where entry is given by the law, and 
 in such case not with strong hand nor with multitude of 
 people, but only in peaceable and easy [the true reading of 
 the Parliament EoU appears to be • lisible, aisee, &peisible'] 
 
 (o) Corby t. Bill (1858), 4 C. "B. N. S. 556, 27 L. J. 0. P. 318. See more in Chap. 
 XII. below. 
 
 30 
 
466 WRONGS TO POSSESSION AND PROPERTT. 
 
 manner." This statute is still in force here, and " has 
 been re-enacted in the several American States, or recog- 
 nized as a part of the common law " (p). The offence is 
 equally committed whether the person who enters by force 
 is entitled to possession or not : but opinions have differed 
 as to the effect of the statute in a court of civil jurisdiction. 
 It has been held that a rightful owner who enters by force 
 is not a trespasser, as regards the entry itself, but is liable 
 for any independent act done by him in the course of his 
 entry which is on the face of it wrongf ul,N and could be 
 justified only by a lawful possession (q); and, it should 
 seem, for anyother consequential damage, within the general 
 limit of natural aud probable consequence, distinguishable 
 from the very act of eviction. This is a rather subtle result, 
 and is further complicated by the rule of law which attaches 
 legal possession to physical control, acquired even for a very 
 short time, so it be " definite and appreciable " (r) by the 
 rightful owner. A. , being entitled to immediate possession 
 (say as a mortgagee having the legal estate) effects an actual 
 entry by taking off a lock, without having given any notice 
 to quit to B. the precarious occupier; thus, "in a very 
 
 (p) Oooley on Torts, 323. For the (g) Bedddll v. Maithmd (1881), 17 Oh. 
 
 remedial powers given to jQstioes of the D. 174, 50 L. J. Ch. 401; Edmck v. 
 
 peace by later statutes, see Lambarde's Hawkes (1881), 18 Ch. D. 199, 50 L. J. Ch. 
 
 Elrenarcha, cap. 4 ; 15 Ric. II. c. 2, is still 577, and aathorlties there discnssed.. 
 
 nominally in force. As to what amounts (r) Lord Cairns in Lows v. Telford 
 
 to forcible entry, Jones T. Foley, '91, 1 Q. (1S76), 1 App. Ca. at p. 421. 
 B. 730,00L. J. Q.B.464. 
 
 Be-entry : herein ol forcible entry. In general, under the statutes of 
 forcible entry and detainer in the various States, the bare question of 
 possession, irrespective of title, is presented. It is an accepted rale in 
 America that where a person has the title and a right of present possession 
 a peaceable entry vyill not make him a trespasser. Henderson » . Grewell, 
 8 Cal. 581 ; Tpibble v. Frame, 7 J. J. Marsh. 599, 617 ; Culver v. Smart, 1 
 Ind. 65; Yeates v. AUin, 2 Dana, 134; Walton v. File, 1 Dev. & B. 567; 
 Ostataga v. Taylor, 44 111. App. 469 ; Brooke v. O'Boyle, .27 111. App. 384 j 
 Illinois &c. E. Co. ». Cobb, 94 III. 65. Upon the question whether a person 
 with title and the right to immediate 'possession may employ force, if 
 necessary, In effecting an entry, see Hyatt v, Wood, 13 Johns. 150; Ives 
 V. Ives, Id. 235; Johnson v. Hanahan, 1 Strobh. 313. 
 
FOECIBLB ENTRY. 467 
 
 rough and uncourteous way," that is, peaceably but only 
 just peaceably, he gets possession: once gotten, however, 
 Ills 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 (s). Nevertheless, according 
 to later judgments, delivered indeed in a court of first 
 instance, but one of them after consideration, and both 
 learned and careful, A. commits a trespass if, being in 
 possession by a forcible entry, he turns out B. (^t). More- 
 over, the old authorities say that a forcible turning 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 useth violence, and throweth out such as he findeth 
 in the place, he (I say) shall not be excused : because his 
 entry is not consummate by the only putting of his foot 
 over the threshold, but by the action and demeanour that 
 he offereth when he is come into the house " (u). And 
 under the old statutes and practice, " if A. shall disseise B. 
 of his land, and B. do enter again, and put out A. with 
 force, A. shall be restored to his possession by the help of 
 the justices of the peace, although his first entry were 
 utterly wrongful: and (notwithstanding the same restitu- 
 tion is made) yet B. may well have an assize against A., 
 or may enter peaceably upon him again " (x). 
 
 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 " (y). There is nothing in them 
 to countenance the notion of the personal expulsion being 
 
 {8) Lows V. TeZ/ori? (1876),1 App. Ca. (m) Lambarde's Blrenaroha, cap. 4, 
 
 iU, 45 L. J. Ex. 613. p. 143, ed. 1610. 
 
 (t) See the judgment of Fry J. in (») J6. 148. 
 
 Beddall v. MaUland, and EOwich v. (y) F. N. B. 248 H., Bro. Ab. Forcible 
 
 Hawkes, note (g). Entry, 29. 
 
468 WEOKGS TO POSSKSSION AND PROPERTY. 
 
 a distinct wrong. The opinion of Parke and Alderson was 
 in accordance with this (z), and the decision from which 
 they dissented is reconcileable with the old books only by 
 the ingenious distinction — certainly not made by the 
 majority (a) — of collateral wrongs from the forcible evic- 
 tion itself. The correct view seems to be that the posses- 
 sion 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 dispes- 
 sessed 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 refine 
 ment does not appear to have occurred to any of the old 
 pleaders. 
 
 Fresh re-entry on trespasser. A trespasser may in 
 any case be turned off land before he has gained pos- 
 session, and he does not gain possession until there 
 has been something like acquiescence 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 posses- 
 sion by any kind of effective interruption 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 occupied by him in virtue of his 
 
 (a) Neu!tonv.narlancHia40),lU. &G. (o) Tlndal C. J. said that possesBion- 
 
 eu, 1 Scott N. E. iU; in 3wn>ey v. gained by foioible entry was illegal: 1 
 
 Brydgea (1845), 14 M. & W. at pp. 44^-3, M. &G. 688. 
 they declared themselves unconverted. 
 
 Presli re-entry on trespasser. Mere occasional entries and tres- 
 passes do not confer any of tlie riglits of a possessor in law upon the 
 trespasser. Hughes v. Stevens, 36 Pa. St'. 320 ; Ozark Laud C!o. v. Leonard, 
 20 Fed. Rep. 881 ; Ware v. Johnson, 53 Mo. 550 ; Illinois Coal Co. «. Cobb, 
 82 111. 183 ; Pettit ». Cowherd, 83 Va. 20 ; 1 S. E. Hep. 893 ; Storrs v. Feick, 
 24 W. Va. 606; GuUedge v. White, 73 Tex. 498; 11 S. W.Rep. 527. 
 
EECATTURE. 469 
 
 office, but had afterwards 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, imme- 
 diately and without acquiescence, gave himself what the 
 law understands 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 " (6). 
 There must be not only occupation, but effective occupa- 
 tion, for the acquisition of possessory rights. "In deter- 
 mining whether a sufficient possession was taken, much 
 more unequivocal acts must be proved when the person 
 who is said to have taken possession is a mere wrong-doer 
 than when he has a right under his contract to take posses- 
 sion " (c). 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 (d). We shall see that this has material 
 consequences as regards the determination of a cause of 
 excuse. 
 
 iSecaptiou of goods. As regards goods which have been 
 wrongfully taken, the taker is a trespasser all the time that 
 
 (6) Browne v. Dawson (1810), 12 A. & (cj MelliBh L. J., Ex parte Fletcher 
 
 E. 624, 629, 10 L. J. Q. B. 7. If a new (1877), 5 Ch. Div. 809, 812. 
 
 trespasser entered in this state ol tilings, (d) Holmes v. Wilson (1839) ,.10 A. & E. 
 
 coald the trespasser in inchoate oconpa- 503 ; Bowyer v. Cook (1847), 4 C. B. 236, 16 
 
 tion sue bim, or the last possessor? L. J. C. F. 177; and see 2 Wms. Saund. 
 
 Possibly both. ' 496. 
 
 Recaption of goods. A peaceable entry by an owner to retake gooda 
 from another's land or possession is not a trespass. Allen v. Feland, 10 
 B. Men. 306; Wheelden v. Lowell, 50 Me. 499; Chambers ». Bedell, 2 
 "Watts & S. 225; Richardson v. Anthony, 12 Vt. 273; Harding v. Sandy, 43 
 111. App. 442. Contra, Jackson v. Walsh, 14 Johns. 406; Morgan v. 
 Varick, 8 Wand. 587; Newkirk v. Sabler, 9 Barb. 652; Heennance ». 
 Vemoy, 6 Johns. 3 ; Boach v. Damon, 2 Humph. 425. 
 
 But in such case the use of force Is not permissible. Salisbury v. Green, 
 17 E. I. 758; 24 At. Eep. 787. Compare, Mills v. Wooten, 59 111. 234. 
 
470 WRONGS TO POSSESSION AND PROPERTY. 
 
 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" (e), and a supervening animus furandi at any 
 moment of the continuing trespassory possession will com- 
 plete the offenbe of larceny and make the trespasser a 
 thief (/). 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 (it is said) whatever force is reasonably necessary-for 
 the recaption (p'). He may also enter on the first taker's 
 land for the purpose of recapture if the taker has put the 
 goods there {h); f6r they came there by the occupier's 
 own wrong (^) ; but he cannot enter on a third person's 
 land unless, it is said, the original taking was felonious (Jc), 
 or perhaps, as it has been suggested, after the goods have 
 been claimed and the occupier of the land has refused to 
 deliver them (?)• Possession is much more easily changed 
 in the case of goods than in the case of land ; a transitory 
 and almost instantaneous control has often, in criminal 
 courts, been held to amount to asportation. The difference 
 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 deal- 
 ing with immoveable and moveable property. 
 
 (e) 1 Wms. Saund. 20. or wounding Is not jnstifled lor this 
 
 (/) tt'9- V. Riley (1S57), Hears. 149, 22 cause: but violence used in defence ol a 
 
 L. J. M. C. 48. wrongful possession is a new assault, 
 
 ig) Blades V. Bigga (1861), 10 O. B. N. and commensurate resistance to it in 
 
 8. 713, but the reasons given at page 720 personal self-defence is justiflable. 
 
 seem wrong, and the decision itself is (A) Patrick v. Colerick tl838), 3 M. & 
 
 contrary to the common law as under- W. 483, explaining Blackst. Comm. iii. 4. 
 
 stood in the thirteenth century. One (») Per Littleton J., 9 Edw. IV, 35, pi. 
 
 who retook his own goods by force 10. 
 
 (save, perhaps, on fresh pursuit) was a {le)Via,akBtono,l.c.; Anthonys. Haney 
 
 trespasser and lost the goods. It was (1832), 8 Bing. 187, and Bigelow L. C. 
 
 even thought needful to state that he 374. 
 
 was not a felon. See Britton, ed. (2) Tindal C. J. In Anthony v. Haney: 
 
 NlohoUs, i. 57, 116. At all events maim but this seems doubtful. 
 
EXECUTION AND DISTRESS. 471 
 
 Process of law : breaking doors. One of the most im- 
 portant heads of justification under a paramount right is 
 the execution of legal process. The mere taking and deal- 
 ing with that which the law commands to be 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 particular if possession of a house cannot be de- 
 livered in obedience to a writ without breaking the house 
 open, broken it must be (m). It is equally settled on the 
 other hand that " the sheriff 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 (ti). More special 
 rules have been laid down as to the extent to which private 
 property which is not itself the immediate object of the 
 
 (m) Semaynf/s Ca. (1604-5) 6 Co. Eep. 693. As to the protection of aubordinate 
 
 91 6, and in 1 Sm. L. 0. officers acting In good faith, see In the 
 
 (b) GiosspooJe t. roMM5(1829),9B&C. Chapter of General Exceptions, p. 106, 
 
 696; Garland V. Carlisle {\W,l),iC\. &¥. above. 
 
 Process of law: breaking doors. It is not legal to break into a 
 dwelling house to serve civil process on the owner, or occupant, or his 
 goods. Oy stead ». Shed, 13 Mass. 520; Ilsley v. Nichols, 12 Pick. 270; 
 Calvert v. Stone, 10 B. Men. 152; People v. Hubbard, 24 Wend. 369; 
 State V. Claudius, 1 Mo. App. 551. Raising a latch is sufficient to make 
 the entry illegal. Curtis v. Hubbard, 1 Hill, 336. 
 
 But where an officer is allowed to set foot in the house without force 
 he may keep his possession. State v. Beckner (Ind.), 16 N. E. Eep. 553. 
 If the door is open the officer may enter and break open inner doors, if 
 property is concealed, and use such force as is necessary to serve the 
 process. Prettyman v. Dean, 2 Harr. (Del.) 494; State v. Thackland, 1 
 Bay, 358 ; Hager v. Danforth, 20 Barb. 116. 
 
 A store occupied as a dwelling may not be entered by the dwelling 
 door, but if there is a door common to both there may be a lawful entry. 
 Stearns v. Vincent, 50 Mich. 209; 45 Am. Eep. 37. 
 
 An officer may upon demand and refusal, break open a door to levy on 
 goods of a person other than the occupant of the house. De Graffenried 
 V. Mitchell, 3 McCord, 506; Burton v. Wilkinson, 18 Vt. 186; Piatt v. 
 Brown, 16 Pick. 553. 
 
 Contrary to the rule in England, it is he|d in the United States, that 
 when process is executed illegally by breaking into a dwelling, the 
 execution is void. Ilsley v. Nichols, 12 Pick. 270. 
 
472 WRONGS TO POSSESSION AND PROPERTY. 
 
 process may be invaded in executing 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 per- 
 son ; but at the suit of the Crown, or in execution of process 
 for contempt of a House of Parliament (o), or of a Superior 
 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 (p). The authorities referred ta 
 will guide the reader, if desired, to further details. 
 
 Constables, revenue officers, and other public servants, 
 and in some cases private persons, are authorized by divers 
 statutes to enter on lands and into houses for divers pur- 
 poses, with a view to the discovery or prevention of crime, 
 or of frauds upon the public revenue. We shall not atempt 
 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, unlike a sheriff taking goods in execution, does 
 not acquire possession, the goods being " in the custody of 
 the law" (ff). Most of the practical 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 (?•). 
 
 (o) Burdett v. Abbott (ISU), 14 East, 1, where attachment Is, or was, merely a 
 
 a classical case. formal Incident in ordinary civil process. 
 
 (p) And it Is contempt In the sheriff (g) See West v. Nibbs (1847), 4 C. B. 
 
 himself not to execute such procees by 172, 17 L. J. C. P. 150. 
 
 breaking in If necessary: Harvey v. ' (r) As to distress In general, Blackst. 
 
 Sarvey (1884), 26 Ch. D. 644. Otherwise Comm. book iil. u. 1. 
 
 Distress. Illustrating the common law right of a landlord to distrain 
 the goods and chattels of his tenant for the payment of rent, see, 
 Bailey o. Wright, 3 McCord, 484; Rnssel v. Doty, 4 Cow. 676; Slocum v. 
 Clark, 2 Hill, 475; Dnmes v. McLoskey, 6 Ala. 259; Richardson v. Vice, 
 4 Blackf. 13; Allen v. Agnew, 24 N. J. L. 443; Hartshorne ©. Kiernan, 2 
 Halst. 29; Harrison v. Guill, 46 Ga. 427; Bukup ». Valentine, 19 Wend. 
 654; First Nat. Bank v. Adam, 138 111. 483; 28 N. E. Kep. 965. 
 
 Distress has been either abolished or restricted In nearly all of the 
 states of the United States. 
 
EXECUTION AND DISTRESS. 473 
 
 Damage feasant. Distress damage feasant is the taking 
 by an occupier of land of chattels (commonly but not 
 necessarily animals) (s) found encumbering or doing 
 damage on the land. The right given by the law is there- 
 fore a right of self-protection against the continuance of a 
 trespass already commenced. It must be a manifest tres- 
 pass ; distress damage feasant is not allowed against a party 
 having any colour of right, e. g., one commoner cannot 
 distrain upon another commoner for surcharging (<). 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 di:iving them 
 out before the occupier may distrain, and is excused for 
 following them on the land for that purpose. What is 
 reasonable time is a question of fact, to be determined with 
 reference to all the circumstances of the transaction (m). 
 And where cattle stray by reason of the defect of fences 
 which the occupier is bound to repair, there is no actionable 
 trespass and no right to distrain until the owner of the 
 cattle has notice {x). In one respect distress damage 
 
 («) "All chattels whatever are dis- out the statutable approval of that 
 
 trainable damage feasant;" Gilbert on compan7. 
 
 Distress and Replevin (4th ed. 1823), 49. (*) Cape v. Scott (1874), L. E. 9 Q. B. 
 
 A locomotive has been distrained 269, 43 L. J. Q. B. 65. 
 
 damage teaBunt; Attibergate ^c. B. Co.\. («) Goodwim v. Cheveley (1869), 4H. & 
 
 Midland B. Co. (1863), 2 B. &. B. 793; it N. 631, 28 L. J. Ex. 298. 
 
 was notactually straying, but had been (a) 2 Wms. Saund. 671. 
 put on the Midland Company's line with- 
 
 Daraage feasant. In most of the states of the United States this subject 
 is regulated by statute. Generally, the common law rule as to trespass by 
 animals on uninclosed land has been declared inapplicable to the physi- 
 cal condition of this country, especially in the new and sparsely settled 
 communities. See Sprague v. Fremont etc. E. Co., 6 Dak. 86; 50 N. W. 
 Rep. 617; Frazier v. Nortimus, 34 la. 82; Oil v. Rowley, 69 111, 469; Ruys- 
 ter V. Foy, 46 la. 132; Northcote v. Smith, 4 Ohio Cir. Ct. Rep. 565; Little 
 Rock etc. R. Co. v. Finley, 37 Ark. 562. 
 
 The adoption of the stock laws is held to repeal the common law, in 
 Eastman v. Rice, 14 Me. 419; Croker v. Mann, 3 Mo. 472; Mooney v. May- 
 nard, 1 Vt. 470. Contra, Stewart v. Benninger, 138 Pa. St. 437; 21 Am. 
 Rep. 159 ; Bulpit v. Mathews, 42 111. App. 561. * 
 
474 WRONGS TO POSSESSION AND PKOPERTT, 
 
 feasant is more favoured than distress. for rent. " For a 
 rent or service tlie 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 " (y ). But in other respects " damage feasant is the 
 strictest distress that is, for the thing distrained must 
 be taken in the very act," and held only as a pledge for 
 its own individual trespass, and other requirements 
 observed (s). 
 
 The right of distress damage feasant does not exclude 
 the right to chase out trespassing beasts at one's elec- 
 tion (a), or to remove Inanimate chattels and replace them 
 on the owner's land (6). 
 
 Entry of distrainor. Entry to take a distress must be 
 peaceable and without breaking in ; it is not lawful to open 
 a window, though not fastened, and enter thereby (c). 
 Distrainors for rent have been largely holpen by statute, 
 but the common law has not forgotten its ancient strictness 
 where express statutory provision is wanting. 
 
 In connexion with distress the Acts for the prevention 
 of cruelty to animals have introduced special justifications: 
 any one may enter a pound to supply necessary food and 
 water to animals impounded, and there is an. eventual 
 power of sale, on certain conditions, to satisfy the cost 
 thereof (d). 
 
 (2/) Co. Litt. 142 a. 590. Otherwise where the window is 
 
 (3) Vaspor y, Edwards (1101) , 12 Mod. already partly open: Orabtree\. Iiobms<m 
 
 660, where the iDCidents of damage (1885), 15 Q. B. D. 312, 64 L. J. Q. B. 544. 
 
 feasant generally are expounded. (e2) 12 & 13 Vict. c. 92, s. 6; 17 & 13 
 
 (a) Tyrringham's Ca.,i Co. Rep. 38 6. Vict. c. 60, s. 1; snperseding ah earlier 
 
 (6J Sea V. Sheward (1839), 2 M. & W. Act ol William IV. to the same effect. 
 
 434. See Fisher's Digest, Distkess, s. t. 
 
 (0) Nash v. iMcaa (1867), L. B. 2 Q. B. " Pound and Poundage." 
 
 Entry ol distrainor. Agreeing with tlie text, vide, Williams v. Spencer, 
 5 Jolins. 353 ; State o. Tliackara, 1 Bay, 358. 
 A statute whicli authorizes a humane society to kill another's horse 
 
JUSTIFICATION BY NECESSITY. 475 
 
 Trespasses justified by necessity. Finally there are 
 cases in which entry on land without consent is excused 
 by the necessity of self-preservation, or the defence 
 of the realm (e), or an act of charity 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 land on 
 either side is justified ; but in this last-mentioned case it 
 is perhaps rather a matter of positive common right than 
 of excuse (_/). Justifications of this kind are discussed in a 
 case of the early sixteenth century, where a parson sued for 
 
 (e) See p. 157, above. to do acts, such as ploughing, which 
 
 (/) The juatiflcatiou or right, which- make it impassable or inconvenient at 
 
 ever it be, does not apply where there is certain times: Arnold v. Holbroolc (1873), 
 
 only a limited dedication of a way, sub- L. B. 8 Q. B. 96, i2 L. J. Q. B. SO. 
 ject to the right of the owner of the soil , 
 
 summarily, without notice, is unconstitutional. Brill v. Ohio Humane 
 Soc, i Ohio Cir. Ct. Eep.,358. 
 
 Trespasses justified by necessity. Certain necessities excuse acts 
 otherwise wrongful. In the case of American Print Works v.. Lawrence, 
 (23 N. J. L. 604), the learning on this subject is collated and the court 
 said: "The common law doctrine of necessity is one that is now too 
 firmly established to be drawn in question, and yet, perhaps, necessarily 
 from its character. It seems somewhat undefined as to its application and 
 extent. It may, by the way, be remarked, that it is not less unquestion- 
 able as an established doctrine, because its origin so far as regards a 
 justification at the common law, is only to be found in the illustrative 
 arguments of the older authorities, and not in any direct adjudication. 
 Its exercise must depend upon the nature and degree of necessity that 
 calls the right into action, and which cannot be determined until the 
 necessity is made to appear. The necessity must be immediate, impera- 
 tive and in some cases extreme and overwhelming. Mere expediency 
 or utility will not suffice." In this case the distinction is drawn between 
 the limited rule that a person may protect himself or property when 
 attacked, but not a stranger, and the broader rule, based on public good, 
 that a person may protect the property of a stranger by destroying that 
 of another where general destruction is impending, as a fire in a city. 
 See Burton v. McCleilan, 3 III. 434. 
 
 An entry on the land of another to save a boat from destruction was 
 held to be not a trespass, in Proctor ». Adams, 113 Mass. 376. 
 
 A traveler on an obstructed highway may lawfully pass around the 
 
476 WRONGS TO POSSESSION AND PROPERTY. 
 
 trespass in carrying away his corn, and the defendant 
 justified on the ground that the corn had been set out for 
 tithes and was in danger of being spoilt, wherefor he took 
 it and carried it to the plaintiff's barn to save it: to ^hich 
 the plaintiff demurred. Kingsmill J. said that a taking 
 without consent must be justified either by public 
 necessity, or •' by reason of a condition 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. 
 As examples of public necessity, he gives pulling down 
 some houses to save others (in case of fire, presumably) (g), 
 and entering in war time to make fortifications. " The 
 defendant's intention," said Kede C. J., " is material in 
 felony but not in trespass; andhereit is not enough that he 
 acted for the plaintiff's good." A stranger's beasts might 
 have spoilt the corn, but the plaintiff would have had his 
 remedy against their owner. " So where my beasts are 
 doing damage in another man's land, I may not enter to 
 drive them out ; and yet it would be a good deed to drive 
 them out so that they do no more damage ; but it is other- 
 wise 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 
 
 (g) Cp. Littleton J. in T. B. 9 Ed. IV. danger to me, lor if 1 let tlie house 
 
 35; "If a man by iiegligence snffei his stand, it may burn so that I cannot 
 
 bonse to burn, 1 who am his neighbour quench the fire afterwards." 
 may breab down the house to avoid the 
 
 obstruction ovet the land oJ another. Campbell v. Kace, 7 Cush. 408; 
 Morey v. Fitzgerald, 56 Vt. 487; Carey v. Rae, 58 Cal. 159. 
 
 A person driving cattle along the highway commits no trespass by 
 agoing on another's land to drive oft escaping ones. Bightmore v. 
 Shephard, 59 Hun, 620; 12 N. Y. S. Bep. 800; Hartford v. Brady, 114 
 Mass. 466; Coal v. Crommet, 13 Me. 250; Tonawanda B. Co. v. Monger, 
 6 Denio, 255. 
 
 Upon the right of a city council to destroy liquor in the city for the 
 purpose of preventing a possible riot, see Jones ». Bichmond, 18 Gratt. 
 517. 
 
TRESPASS AB INITIO. 477 
 
 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 " {h). Fisher J. 
 concurred. There is little or nothing to be added to the 
 statement of the law, 'though it may be doubted whether it 
 is now likely ever to be strictly applied. Excuse of this 
 kind is always more feadily allowed if the possessor of the 
 land has created or contributed to the necessity by his own 
 fault, as where the grantor of a private right of way has 
 obstructed it so that the way cannot be used except by 
 deviation on his adjacent land (i). 
 
 Foxhunting not privileged. At one time it was sup- 
 posed that the law justified entering on land in fresh pur- 
 suit of a fox, because the destruction of noxious animals 
 is to be encouraged; but this is not the law now. If it 
 ever was, the reason for it has long ceased to exist (j). 
 Practically foxhunters do well enough ( in this part of the 
 United Kingdom) with licence express or tacit. 
 
 Trespass ab initio. There is a curious and rather subtle 
 dictinction between justification by consent and justification 
 or excuse under authority of law. A possessor by consent, 
 
 (A) 21 Hen. VII. 27, pi. 5 (but the case wWoh seems to extend the justification 
 
 seems really to belong to Hilary term of to entry to retake goods which have 
 
 the next year, see S. C, Keilw. 88 a; come on another's land by Inevitable 
 
 Frowike was still Chief Jastice of Com- accident; see Story, Bailments, § 83 a, 
 
 mon Pleas In Trinity term 21 Hen. VII., note. 
 
 ib. 86 6, pi. 19; he died in the following (j) Selby v. Nettlefold (1873), 9 Ch. Ill, 
 
 vacation, and Bede was appointed in his 43 L. J. Ch. 359. 
 
 stead, <J>. 85 6, where for Mich. 22 Hen. 0') Pcmly. Summerliayes (1878), 1 Q. B. 
 
 VH. we should obviously read 21) ; cp. 37 D. 9, 48 L. J. M. 0. 33. 
 Hen. VI. 37, pi. 26; 6 Bd. IV. 8, pi. 18, 
 
 Hunting not privileged. The right to commit a trespass in pursuit 
 of animals feros natures does n^t exist. Glenn v. Kays, 1 HI. App. 479. 
 See Sterling v. Jackson, 69 Mich. 488; 37 N. W. Eep, 845. 
 
478 WRONGS TO POSSESSION AND PROrEETY. 
 
 or 11 licensee, may commit a Wrong by abusing his power, 
 but (subject to the peculiar exception in the case of letting 
 or bailment at will mentioned above) (k) he is not a tres- 
 passer. 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 tres- 
 passer, because his entry was authorized by the lessor (Z). 
 But " when entry, authority, or licence is given to any one 
 by the law, and he doth abuse it, he shall be a trespasser, 
 ab initio," that is, the authority or justification is not only 
 determined, but treated as if it had never existed. " The 
 law gives authority to enter into a common inn or 
 tavern (ra) ; so to the lord to distrain ; to the owner of the 
 ground to distrain damage feasant ; to him in reversion to 
 see if waste be done ; to the commoner to enter upon the 
 land to see his cattle ; and such. like .... But if he 
 who enters into the inn or tavern doth a trespass, as if he 
 carries away anything; or if the lord who distrains for 
 rent (n), or the owner for damage feasant, works or kills 
 the distress ; or if he who enters to see waste breaks the 
 house or stays there all night ; or if the commoner cuts 
 down a tree ; in these and the like cases the law adjudges 
 that he entered for that purpose, and because the act which 
 
 (ft) p. 325, above. real amonnt of damage by H Geo. n. o. 
 
 (I) 21 Ed. IV. 76 6, pi. 9. 19, B. 19: but this does not apply to a 
 
 (m) This is in respect of the puhlic case where the distress was wholly un- 
 
 char.ioter of the Innkeeper's employ- Iswlnl: Attacks. Bramioell (^1863), 3 'B. & 
 
 ment. S. 520, 32 L. J. Q. B. 146. Distrainors for 
 
 in/ The liability of a, distrainor for damage feasant are still under the corn- 
 rent justly due, in respect of any subse- mon law. 
 qnent irregularity, was reduced to the 
 
 Trespass ab Initio. Where one enters by public license or anthprity of 
 law and thereafter does unlawful acts he becomes a trespasser ab initio 
 and liable for the entire trespass, but one entering under contract or by 
 consent of a private person is liable only for the injury consequent to 
 the unwarrantable acts. Ballard v. Noakes, 2 Ark. 45; Adams v. 
 Elvers, 11 Barb. 390; Narehood o. Wilhelm, 69 Pa. St. 64; Faulkner v. 
 Anderson, Gilmer, 221; Malcolm v. Spoor, 12 Mete. 279; Brock ». Stim- 
 
TRESPASS AB INITIO. 479 
 
 ( 
 
 demonstrates it is a trespass, tie shall be a trespasser ab 
 initio " (o). Or to state it less artificially, the effect of an 
 authority given by law without the owner's consent is to 
 protect the person exercising that authority from being 
 dealt with as a trespasser so long — but so long only — as 
 the authority is not^abused. He is never doing a fully law- 
 ful act : he is rather an excusable trespasser, and becomes 
 a trespasser without excuse if he exceeds his authority {p): 
 " it shall be adjudged against the peace " (q). This doc- 
 trine has been applied in modern times to the lord of a 
 manor taking an estray (r), and to a sheriff remaining in a 
 house' in possession of goods taken in execution for an un- 
 reasonably long time (s). It is applicable only when there 
 has been some kind of active wrong-doing; not when there 
 has been a mere refusal to do something one ought to do — 
 as to pay for one's drink at an inn {t), or deliver up a dis- 
 tress upon a proper tender of the rent due (w). "If I 
 distrain for rent, and afterwards the termor offers me the 
 rent and the arrears, and I withhold the distress from him, 
 yet he shall not have an action of trespass against me, but 
 detinue, because it was lawful at the beginning, when I 
 took the distress ; but if I kill them or work them in my 
 own plow, he shall have an action of trespass " (cc). But 
 it is to be observed that retaining legal possession after the 
 expiration of authority has been held equivalent to a new 
 
 (o) The Six Carpenters' Case, 8 Co. L. J. Ex. 59, sed qu. if accoiding to the 
 
 Eep. 146 a, b, old anthorities, see Pollock and Wright 
 
 (p) Cp. Pollock and Wright on Pos- on PossfisBlon, 82. 
 session, 144, 201. (<) Six Carpenters' Case, note (o) . 
 
 (q) 11 Hen. IV. 75, pi. 16. (m) West v. Nibbs (1847), 4 C. B. 173, 17 
 
 (r) Oxley v. Waits (1785>, 1 T. E. 12, 1 L. J. C. P. 150. 
 E. E. 133. (.X) Littleton in 33 Hen. VI. 27, pi. 12.' 
 
 («) ^sft V. Z)a!ra02^ (1852), 8 Ex. 237, 22 
 
 son, 108 Mass. 520; Allen v. Crofoot, 5 Wend. 606; Dingley v. Buftum, 
 57 Me. 379; Esty v. Wilmot, 15 Gray, 168; Jewell ». Mahood, 44 N. H. 
 474; Skiith u. Pierce, 110 Mass. 35; Mussey v. Cummlngs, 34 Me. 74; 
 Burton v. Calaway, 20lDd. 469; Gardner v. Campbell, 16 Johns. 401; 
 ■Edelman v. Yeakel, 27 Pa. St. 26; Stone u. Knapp, 29 Vt. 501; Cashing 
 V. Adams, 18 Pick. llO. 
 
480 WRONGS TO POSSESSION AND PROPERTY. 
 
 taking, aud therefore a positive act : hence (it seems) the 
 distinction between the liability of a sheriff, whj) takes 
 possession of the execution debtor's goods, and of a dis- 
 trainor; 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" (y). Formerly these refinements 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 dis- 
 trainor refusing to give up the goods, there was no doubt 
 that trover or detinue would lie (s) : so that under the 
 present practice there would be nothing to discuss, 
 
 X. — Remedies. 
 
 Taking or retaking goods. The only peculiar remedy 
 available for this class of wrongs is distress damage feasant, 
 which, though an imperfect remedy, is so far a remedy that 
 it suspends the right of action for the trespass. The dis- 
 trainor " has an adequate satisfaction for his damage till 
 he lose it without default in himself ; " in which case he 
 may still have his action (a). It does not seem that the 
 re-taking of goods taken by trespass extinguishes the true 
 owner's right of action, though it would of course afiect 
 the amount of damages. 
 
 Costs where damages nominal. Actions for merely 
 trifling trespasses were formerly discouraged by statutes 
 providing that when less than 40s. were recovered no more 
 
 (y) West v. NiXibs, 4 0. B. at p. 184, per (a) Vaspor v. Edwards, 12 Mod. 660, per 
 
 Wilde C. J. Holt 0. J. 
 
 (z) WUde C. J. I. c, Littleton aW sup. _ 
 
 Taking or retaking of goods. See cases cited umler Distkkss and 
 Damage feasant, ante, p. 312. 
 
REMEDIES FOR TRESPASS. 481 
 
 costs than damages should be allowed except on the judge's 
 certificate that the action was brought to try a right, or that 
 the trespass was "wilful and malicious :" yet a trespass 
 after notice not to trespass on the plaintiff's lands was 
 held to be " wilful and malicious," and special communica- 
 tion of such notice to the defendant was not required (6). 
 But these and many other statutes as to costs were super- 
 seded by the general provisions of the Judicature Acts, and 
 the rule that a plaintiff recovering less than 102. damages in 
 an action " founded' on tort " gets no costs in a Superior 
 Court unless by special certificate or order ( c) ; and they 
 are now expressly repealed (d). 
 
 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 com- 
 mon 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" (e), simple trespass not being punishable in 
 courts of criminal jurisdiction — was originally intended to 
 secure the benefit of these same statutes in th^ matter of 
 costs. At this day it may be a question whether the Court 
 would not be disposed to regard the threat of an impossible 
 criminal prosecution as a fraud upon the public, and rather 
 a cause for depriving the occupier of costs than for award- 
 ing them ( y ) . Several better and safer forms of notice are 
 available; a common American one, " no trespassing," is 
 as good as any. 
 
 " Nothing on earth," said Sir Walter Scott, " would in- 
 
 (b) See Bowyer v. Cook (1847), 4 C. B. pealed Act of 1867), and 45 & 46 Vict. c. 
 236,16 L. J. O. P. 177; Reynolds \. Ed- SI; a. 4; see "The Aunaal Practice,". 
 wards (1794), 6 T. K. 11, even where the 1892, pp. 169, 172. 
 
 defendant had Intended and endeav- (.d) 42 & 43 Vict. e. 59. 
 
 onredtoavold trespassing; but this was (e) F. W. Maltland, "Justice and 
 
 doDbted by Pollock C. B. in Svnnfen t. Police," p. 13. 
 
 Bacon (1860), 6 H. & N. 184, 188, 30 L. J. (/) At all events the threat of spring- 
 Ex. 33 36. guns, still not quite unknown, can do the 
 
 (c) OoTinty Courts Act, 1888, a. 116 occupier no good, for to set spring-guns 
 (substituted for like provision of the re- is itself an offence. 
 
 31 
 
482 WRONGS TO POSSESSION AND PEOPEETY. 
 
 duce me to put up boards threatening prosecution, or cau- 
 tioning 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 peo- 
 ple whom it is every way important to conciliate, but that 
 , they are also quite ineflScient" (g). It must be remem- 
 bered that Scott never ceased to be a lawyer as well as a 
 man of letters. It was partly the legal knowledge and 
 tastes displayed in the Waverly Novels that identified him 
 in the eyes of the best critics as the author. 
 
 Injunctions. 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 justificatiou 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 
 
 (ff) Lockhart's Life of Scott, vit. 317, (A) Goodson v. Richardson {187i), 9 Oh. 
 
 ed. 1839, ex relatione Basil Hall. 221, 43 L. J. Ch. 790. 
 
 Injunctions. An Injunction will issue as a matter of right in aid of 
 the action of trespass where there is probability of irreparable injury, 
 or inadequate pecuniary compensation, or a multiplicity of suits which 
 cannot be otherwise presented. See Stetson v. Stevens, 64 Vt. 649; 25 
 At. Rep. 429; Ellis v. Wren, 84 Ky. 254; 1 S. W. Bep. 440; Wood v. 
 Braxton, 54 Fed. Rep. 1005; Natoma Co. v. Clarkin, 14 Cal. 544; Tainter 
 V. Mayor, 19 N. J. Eq. 46; SulliTan v. Babb, 86 Ala. 433; 5 So. Bep. 746; 
 Clendening v. Ohl, 118 Ind. 46; 20 N. B. Rep. 639; Clark ». JefEerson- 
 ville B. Co., 44 Ind. 248 ; Murphy v. Lincoln, 63 Vt. 278 ; 22 At. Bep. 418 ; 
 Ohio Biver B. Co. v. Ward, 35 W. Va. 481 ; 14 S. E. Bep. 142 ; Bichards v. 
 Dower, 64 Cal. 62; 28 Pac. Bep. 113; Miller v. Lynch, 149 Pa. St. 460; 
 24 At. Bep. 80; Gilchrist v. VanDyke, 63 Vt. 75; 21 At. Bep. 1099; 
 Yates^.Townof West Grafton, 33 W.Va. 507; IIS.E. Bep. 8; Lembeck 
 D. Nye, 47 Ohio, 336; 24 N. E. Bep. 686; Thompson v. Engle, 4N. J. Eq. 
 271'; Parker v. Winnipeseogee Co., 2 Black, 545; Saratoga Co. v. Deyoe, 
 77 N. Y. 219. 
 
 But in the absence of one or more of the above grounds and when an 
 adequate remedy at law is available an injunction will not be granted. 
 Thomas v. James, 32 Ala. 723; Crown ». Leonard, 32 Ga. 241; New York 
 P. & D. Establishment v. Fitch, 1 Paige, 97; Hatcher v. Hampton, 7 Ga. 
 
TRESPASS TO REVERSION. 483 
 
 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 without 
 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 (k). 
 
 Effect of clianges in procedure. Before the Common 
 Law Procedure Acts an owner, tenant, or reversioner who 
 had suffered undoubted injury might be defeated by bring- 
 ing his action in the wrong form, as where he brought 
 trespass and failed to show that he was in present posses- 
 sion at the time of the wrong done (Z). But such cases 
 can hardly occur now. 
 
 (i) Cooper Y. Crabtree (1882), 20 Oh. (ft) See 9 Oh. 224, 20 Oh. Div. 693. 
 
 Div. 539.51 L. J. Ch. 585. In Jllenv. (H Brawny. Jfotley il8iS),S Ex. 221, IS 
 
 Martin (1875), 20 Bq. 462, the plaintiffs L. J. Ex. 39; Pilgrim v. Southampton if c. 
 
 were in possession of part of the land S. Co. (1849), 8 C. B. 23, 18 L. J. 0. P. 330. 
 affected. 
 
 49; James v. Dixon, 20 Mo. 79; Smith v. Pettengill, 15 Vt. 82; Eobeling 
 V. First Nat. Bank, 30 Fed. Bep. 744; Ewing v. Eourke, 14 Oreg. 514; 
 13 Pac. Kep. 483; Miller v. Burkett, 132 Ind. 469; 32 N. E. Eep. 309; 
 Heaney v. Butte & M. C. Co., 10 Mont. 590; 27 Pac. Eep. 379; Latham v. 
 Northern P. E. Co., 45 Fed. Eep. 721; McCullough v. City of Denver, 39 
 Fed. Eep. 307; German v. Clark, 71 N. C. 417; West Point Iron Co. v. 
 Eeymert, 45 N. Y. 703; Burnley v. Cook, 13 Tex. 586; 65 Am, Dec. 79; 
 Thornton 27. Boll, 118 111. 350. See this subject discussed, post, p. 374. 
 
484 
 
 CHAPTER X. 
 
 NUISANCE. 
 
 NuisOfUce: public or private. Nuisance is the wrong 
 done to a man by unlawfully disturbing him in the enjoy- 
 ment of' his property or, in some cases, in the exercise of 
 a common right. The wrong is in some respects analogous 
 to trespass, and the two may coincide, some kinds of nui^ 
 sance heing ^so continuing trespasses. The scope of nui- 
 sance, however, is wider. A nuisance may be public or 
 private. 
 
 Public on common nuisances affect the Queen's subjects 
 at large, or some considerable portion oi them, such as the 
 inhabitants, oi a town ;, and the person therein offending is 
 liable to criminal prosecution (a). A public nuisance 
 doies not n^Qcssa^ily create a civil cause of action for any 
 person ; but it may do so undev certain conditions. A 
 
 (a) There was formerly a mandator; Bench, Division stiU has in tlwoi^ jnids- 
 
 wrlt for the abatement of pnbljo nui- dietlpn to grant such, writs (ae distinct 
 
 sances in cities a^d, corporate towna.and from, the common judgment on an in- 
 
 horonghs. See the coiripn^ pi;eoedeqt In, dictment} ; see Bussell on Crtmes, i. iiO. 
 F. N. B. 185 D. Aj>parently the Qaeen's 
 
 Nuisance defined. " Anything constructed on a person's premises, 
 which of itself, or by its intended use, directly injures a neighbor In the 
 proper use and enjoyment of his property, is a nuisance." Grady v. 
 Wolsner, 46 Ala. 382 ; see Stone v. Bumpus, 40 Cal. 428. 
 
 In the case of Hart v. Mayor etc. of Albany (9 Wend. 571), a floating 
 storehouse is held to constitute a public nuisance. See Pilcher v. Hart, 
 1 Humph. 524; Woodman v. Kilbourn Mfg. Co., 1 Abb. U. S. 158; Gibson 
 V. Black (Ky.), 9 S. W. Eep. 379. 
 
 Public or common nuisances, defined. The American cases define 
 public nuisance substantially as the text, vide State ». Mayor etc. of Mo- 
 
PUBLIC NUISANCES. 4SS 
 
 private nuisauoe affects only one person or a determinate 
 number of persons, and is the grotind of citil proceedings 
 only. Generally it aflfeots the control, use, or enjoyment 
 
 bile, 5 Port. 279; Dierks v. Oommr's of Highways, 142 111. 197; 31 N. E. 
 Rep. 496; Town of Kirkwood v. Cairnps, 44 Mo. App..88; State v. Board 
 of Health of Newark, 54 N. J. L. 325; 23 At. fiep. 949; Commonwealth v. 
 Ruddle, 142 Pa. St. 144; 21 At. UMp. 814; 2g W. Sf. C. 227; Hussner v. 
 Brooblya City R. Co., 114 N. Y. 433; 21 N. B. Rep. 1002; CommoflWealltti 
 V. Wilkesbarre & K. S. By. Co., 127 Pa. St. 278; 17 At. Rep. &96 ; 24 W. 
 N. C. 280; Seacord v. People, 121 111. 623; IS N, E< Rep. 194; People ». 
 Crounse, 51 Hun, 489; 4 N. Y. S. Rep. 226; 7 N. Y. Crim. H6f). ll; State 
 V. Laura Toole, 106 N. C. 736; 11 S. E. Hef). 168; Cofie* u. Territory, 
 1 Wash St. 325; 25 Pac. Rep. 632; Kuehn v. City of Milwaukee, 83 Wis. 
 583; 53 N. W. Rep, 912. 
 
 " It may beabserTed generally that e^ejy nuisalice is annoying to (bBly 
 a few of the citizens of a particular place. They are the public of that 
 locality. It is a public nt(isaiv<ie if it annoy such f)aa't of the people as 
 uecessaTily cowe in contact With it." fiaekney t. State, 8 Ittd. 49'S. 
 See Xan^Dg o. Sinitb, 14 Wend. 10; Commonwealth ». Webb', 6 Rand. 
 726; GoH«»onwealth v. Farris, 5 Batid. 691; State ». Baldwin; 1 Dev. & 
 B. 197; Elli^». State, 7 BlacM. 534; €f*eea ». Nunnetnacher, 38 Wis. 60; 
 Commonwealth v. Perry^ 139 Mass. 198; Allen tf. State, 34 Tfesf. 230; 
 Howard v. See, 3 Sand!. 281- ; Beatty ». Gilmore, 16 fm. St. 43'6; Moflk tf. 
 Packard, 71 Me. 309; Robinson *. Baugh, 31 Mich. 291; King v. Morris, 
 eke, R. Co., 18 N. J. Eq. 397. 
 
 But whether a thing is or is not a nuisance does not dtepend on the 
 notions of people living in a designated locality. Owen v. Phillips, 73 
 Ind. 284. See Prince ■». Grantz, 118 Pa. St. 402. 
 
 "A public nuisance cannot exist in acts' which are warranted by law 
 or authorized by legislative sanction,- even though the act complained of 
 might, independent of the statute, be a nuisance." DarCantel «. People's 
 Slaughter-house Befrige*sttor Co., 44 La. 632; 11 So'. Rep. 243. To 
 Illustrate^ it has been held that a fire engine houfie in a city is not a 
 nuisance, VanDe Vere ». Kansas City, 107 Mo. 83; 17 S. W. Rep. 695. 
 The authority of the le^sla/ture should doubtless be expressed and relate 
 to matters of public utility in which the people Have an interest and a 
 right of control. Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. 
 S. 317. See Cogswell v. N. Y., N. H. & H. R. Co., 103N. Y. 10. But 
 this rule is stibjpct to the following qualification: " In such cases the 
 person is shielded from liability for damages that eiisue, unless- he is 
 chargeable with ne^igence for the manner in Which the act is done." 
 Bohaa V. P. J. Of. L. Co., 122 N. Y. 34; 25 N. E. Bep. 246, citing CJonklin 
 V. N. Y., O. & W. R. Co., 102 N. Y. 107; Besemaii v. PehnsyWauia R. Co., 
 50 N. J. L. 233; Otteuot V. N-. t., L. & W. R. Co., 28 1^. Y. Si Rep. 4'83. 
 
486 NUISANCE, 
 
 of immoveable property; but this is not a necessary 
 element according to the modern view of the law. Cer- 
 tainly the owner or master of a ship lying in harbour, for 
 example, might be entitled to complain of a nuisance 
 created by an occupier on the wharf or shore which made 
 the ship uninhabitable. 
 
 See Hinchman v. Patterson, etc. E. Co., 17 N. J. Eq. 75; People v. Sands, 
 1 Johns. 78; Edmondson v. City of Moberly, 98 Mo. 523; H S. W. Eep. 
 990 ; Masterson v. "Short, 7 Bobt. 290 ; Quinn v. Lowell Electric Light 
 Corp., 140 Mass. 106. 
 See, ante, pp. 69, 70, 71, 154. 
 
 Public nuisance and private nuisance distinguished. "A common 
 or public nuisance Is that which afEects the people and as a violation of 
 the public right either by direct encroachment upon public property or 
 by doing some act which tends to a common injury or by omitting of 
 that which^the common good requires, and which it is the duty of the 
 person to do. Public nuisknces are founded upon wrongs that arise from 
 unreasonable, unwarrantable and unlawful use of property, or from im- 
 proper, indecent or unlawful conduct working an obstruction or injury 
 to the public and producing material annoyance, inconvenience, and dis- 
 comfort. Founded upon a wrong it Is indictable and punishable as for 
 a misdemeanor. It is the duty of individuals to observe the rights of the 
 public and to refrain from the doing of that which materially injures and 
 annoys or inconveniences the people, and this extends even to business 
 which would otherwise be lawful, for the public health, safety, conve- 
 nience, comfort or morals, is of paramount importance, and that which 
 affects 'or impairs it must give way for the general good. In such case 
 the question of negligence is not involved, for its injurious effect upon the 
 public makes it a wrong which it is the duty of the court to punish 
 rather than to protect. But a private nuisance rests upon a different 
 principle. It is not necessarily founded upon a wrong, consequently 
 cannot be indicted and punished as for an offense. It is founded upon 
 injuries that result from the violation of private rights and produce 
 damages to but one or a few persons. Injury and damage are essential 
 elements, and yet they may both exist and still the act or thing produc- 
 ing them not be a nuisance. Every person has a right to a reasonable 
 enjoyment of his own property, and so long as the use to which he 
 devotes it violates no rights of another however much damage others 
 may sustain therefrom, his use is lawful and it is damnum absque injuria." 
 Bohan v. P. J. G. L. Co., 122 N. Y. 32; 25 N. E. Eep. 246,-«iting Thurs- 
 ton V. Hancock, 12 Mass. 222j Campbell v. Seaman, 63 N. Y. 568. See 
 Page V. Mille LacsL. Co. (Minn.), 55 N. W. Eep. 608. 
 
PUBLIC NUISANCES. 487 
 
 Private right of action for public nuisance. We shall 
 first consider in what cases a comnion nuisance exposes the 
 person answerable for it to civil as well as criminal process, 
 in other words, is actionable as well as indictable. 
 
 " A common nuisance is an unlawful act or omission to 
 discharge a legal duty, which act or omission endangers 
 the lives, safety, health, property, or comfort of the public, 
 or by which the public are obstructed in the exercise or 
 enjoyment of any right common to all her Majesty* s sub- 
 jects" (6). Omission to repair a highway, or the placing 
 of obstructions in a highway or public navigable river, is a 
 familiar example. 
 
 (6) Criminal Code (Indictable Of- Criminal Law, art. 176, and illustrations 
 fences) Bill, 1879 (as amended in Com- thereto, and the Indian Penal Code, o. 
 mittee), o. 160; cp. Stephen, Digest of 268. 
 
 Private right of action for public nuisance. Private persons are 
 not permitted to maintain suits to abate a public nuisance, as such a 
 rule would inevitably lead to a multiplicity of suits involving the same 
 question. " Therefore,, the courts very wisely and unswervingly adhere 
 to the rule that an individual, in order to be entitled to a recovery for 
 injuries sustained from a public nuisance must make out a clear case of 
 special damages to himself, apart from the rest of the people, and of a 
 different character, so that it cannot be fairly said to be a part of com- 
 mon injury resulting therefrom. It is not enough that he sustained 
 more damage than another, it must be of a different character, special 
 and apart from that which the public In general sustain, and not such as 
 is common to every person who exercises the right that is injured." 
 Snyder v. Viola Mining and Smelting Co., 2 Idaho, 771; 26 Pac. Rep. 
 124. See Lansing v. Smith, 14 Wend. 10; Commonwealth v. Webb, 
 6 Rand. 729. 
 
 That a public nuisance is indictable and may be abated after a verdict 
 of guilty upon the indictment, is a proposition which is undoubted and has 
 been sustained by numerous authorities. See Respublica v. Newell, 3 
 Yeates, 417; 2 Am. Dec. 381; Slate v. King, 3 Ired. 411; Simpson v. 
 State, 10 Yerg. 525; Boyer v. State, 16 Ind. 451; Palatija etc. K. Co. v. 
 State, 23 Fla. 546; Marine Ins. Co. v. St. L. I. M. & S. Ry. Co., 41 Fed. 
 Rep. 650; Flynn v. Taylor, 53 Hun, 167; 6 N. Y. S. Rep. 96; Cohen v. 
 Mayor etc. of New York, 113 N. Y. 535; Allen v. Lyon, 2 Root, 213; 
 Dimmett v. Esridge, 6 Munf. 308 ; Columbus v. Jaques, 30 Ga. 506 ; 
 Gerrish v. Brown, 51 Me. 256; Morton v. Moore, 15 Gray, 573; Barnum 
 V. Minnesota Transfer Ry. Co., 30 Minn. 365. 
 
488 NUISANCE. 
 
 In order to sustain an indictment for nuisance it is 
 enough to show that the exejcise 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 ob- 
 struction is in some other way a public convenience. Thus 
 it is an indictable nuisance at common law to lay down a 
 tramway in a public street to the obstruction of the ordi- 
 nary traffic, although the people who use the cars and save 
 money and time by them may be greater in number than 
 those who are obstructed in their use of the highway in the 
 manner formerly accustomed (c). 
 
 It is also not material whether the obstruction interferes 
 with the actual exercise of the right as it is for the time 
 being exercised. The public are entitled, for example, to 
 have the whole width of a public road kept free for passing 
 and repassing, and an obstruction 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 (d). 
 
 Further discussion and illustration of what amounts to 
 an indictable nuisance must be sought in works on the 
 criminal law. 
 
 Special damage must be shown. A private action can 
 be maintained in respect of a public nuisance by a person 
 who suffers thereby some particular loss or damage be- 
 
 (c) R. V. Train (1862), 2 B. & S. 640, 31 (d) Turner v. Bingwood Bighioay 
 
 L. J. M. C. 169. The tramways now In Board (1870), 9 Eq. 418. Compare the 
 
 operation In many cities and towns have similar doctrine as to obstmction of 
 
 been made under statatory authority. lights, infra. 
 
 Special damages must be sbown. As said in the text and in the last 
 preceding note, a private action against a public nuisance can only be 
 maintained by one who suffers some particular injury different in kind 
 from that suffered by the public. See Cranford v. Terrell, 128 N. Y. 343; 
 28 N. E. Rep. 614; Sparhawk v. Union, etc. E. Co., 54 Pa. St. 401; School 
 District o. Neil, 36 Kan. 617; 14 Pac. Rep. 253; Little Rock, etc. R. Co. v. 
 Brooks, .S9 Alk. 403; Kingsbury v. Flowers, 65 Ala. 479; 39 Am. Rep. 14; 
 Nottingham v. Baltimore & Potomac R. Co., 3 McArthur, 517; Payne v. 
 
PARTICULAR DAMAGE. 489 
 
 yond what is suffered by him in common with all other 
 persons affected by the nuisance. Interference with a 
 common right is not of itself a cause of action for the 
 individual citizen. Particular damage (e) consequent on 
 the interference is. If a man digs a trench across a high- 
 way, 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 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 resulting from the common nuisance, and 
 distinct from the mere obstruction of the common 
 right of passage which constitutes that nuisance {f). If 
 a trader is conveying his goods in barges along a navigable 
 river, and by reason of the navigation being unlawfully 
 obstructed has to unload his merchandise and carry it 
 overland at an increased expense, this is a particular 
 damage which gives him a right of action (g). Though it 
 is a sort of consequence likely to ensue in many individual 
 cases, yet in every case it is a distinct and specific one. 
 
 (e) "Partlciilar damage " and " special he is more incommoded than others, 
 
 damage " are nsed indifferently in the " If one make a ditch across the high 
 
 anthorities ; the former seems prefera- road, and I come riding along the road 
 
 ble, for " special damage," as we have at night, and I and my horse are thrown 
 
 seen, has another technical meaning in - in the ditch so that I have thereby great 
 
 the law of defamation. damage and annoyance, I shall have 
 
 ( /) Y. B. 27 Hen. VIII. 27, pi. 10. my action against him who made this 
 
 Action for stopping a highway, where- ditch, because I am more damaged than 
 
 by it seems the plaintiff was deprived of any other man." Held that sufficient 
 
 the nse of his own private way abutting particular damage was laid, 
 
 thereon (the statement is rather ob- (g) Boae v. Miles (1815), iM.&S.101, 
 
 score) : per Fitzherbert, a man shall and in Bigelow L. 0. 160. 
 have his action for a public nuisance if 
 
 McKinley, 54 Cal. 632; Parrott v. Floyd, Id. 534j Coburn ». Ames, 52 Id. 
 385; Gordon v. Baxter, 74 N, C. 470; Dudley v. Kennedy, 63 Me. 465; 
 Blanc V. Klumpke, 29 Cal. 159; Hartshorn v. Inhabitants ol South 
 Beading, 3 Allen, 501; Ofstie v. Kelly, 33 Minn. 440; De Laney v. Bliz- 
 zard, 7 Hun, 7. ** 
 
490 NUISANCE. 
 
 Where this test fails, there can be no particular damage 
 in a legal sense. If the same man is at divers times 
 delayed by the same obstruction, and incurs expense in 
 removing it, this is not of itself sufficient particular 
 damage; the damage, though real, is " common to all who 
 might wish, by removing the obstruction, to raise the 
 question of the right of the public to use the way" (A). 
 The diversion of traffic or custom from a man's door by an 
 obstruction of a highway, whereby his business is inter- 
 rupted" and his profits diminished, seems to be too remote 
 a damage to give him a right of private action (i), unless 
 indeed the obstruction is such as materially to impede the 
 immediate access to the plaintiff's place of business more 
 than other men's, and amounts to something like blocking 
 up his doorway (k). Whether a givea case falls under the 
 rule or the exception must depend on the facts of that 
 case: and what is the true principle, and what the extent 
 of the exception, is open to some question (I), If horses 
 and waggons 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 
 
 (ft) Winterbottom V. Lord Derby (,lS&r), Mshmonffers' Company (,1816),! Ajip. Oa. . 
 
 L. K. 3 Ex. 316, 322, 36 L. J. Ex. 194. 662, 46 L. J. Ch. 68, Is really consistent 
 
 (j) Eicixt TT. Metrop. B. Co. (1867), L. with Rickety. Metrop. S. Co. Is a prob- 
 
 E. 2 H. L. at pp. 188, 199. See the com- lem that can be finally solved only by 
 
 ments of Willes J. in Beckett T. Midland the Honse of Lords itself. According to 
 
 B. Co.,Ii. E. 3 C. P. at p. 100, where Wilkes Lyon v. Fishmonger^ Company it shoald 
 
 V. Hmngerford Market Co. (1835), 2 Blng. .' seem' that blocking the access to a street 
 
 N. 0. 281, is treated as overruled bj the is (if not justified) a violation of the 
 
 remarks of Lord Chelmsford and Lord distinct private right of every occupier 
 
 Cranworth. Probably this would not be in the street: and such rights are not 
 
 accepted in other jurisdictions where the less private and distinct because 
 
 the common law is received. In M assa- they may be many ; see Harrop v. Hirst 
 
 chusetts, at least, Wilkes v. Hungerford (1868), L. E. 4 Ex. 43, 38 L. J. Ex. 1. In 
 
 Market Co. was adopted by the Supreme this view it is difficult to see that loss of 
 
 Court in a very lull and careful jadg- custom is otherwise than a natural and 
 
 ment: Stetson v. Faxon (1837), 19 Pick, probable- consequence of tlie wrong. 
 
 147. And cp. the case in 27 Hen. VIII. cited 
 
 (i) Fritz V. Hobson (1880), 14 Oh. D. above, p. 354. In Bicket's ca. Lotd West- 
 
 642, 49 L. J. Ch. 321. bury strongly dissented from the major- 
 
 (0 In Fritz v. Hobson (last note) Fry ity of the Lords present; L. E. 2 H. L. at 
 
 J. did not lay down any general propo- p. 200. 
 sitlon. How far the principle of Lyon v. 
 
PRIVATE NUISANCKS. 491 
 
 people in it are annoyed by bad smells, this damage is 
 sufficiently «« particular, direct, and substantial " to entitle 
 the occupier to maintain an action (m). 
 
 Private nuisance, what. The conception of private 
 nuisance was formerly limited to injuries done to a man's 
 freehold by a neighbour's acts, of which stopping or nar- 
 rowing rights of way and flooding land by the diversion of 
 watercourses appear to have been the chief species (n). 
 In the modern authorities it includes all injuries to an 
 owner or occupier in the enjoyment of the property of 
 
 (m) Benjamin v. Storr (1874)^. E. 9 0. (1878), 3 Ex. D.2e8; Wil&ins v. Dai/ (1883), 
 
 P. 400, 43 L. J. C. P. 162. Compare 12 Q. B. D. 110. 
 
 further, as to damage from unreasonable (m) F. N. B. " Writ of Assize of 
 
 nser of a, highway, Sarris T. Mobbs Nuisance," 183 1, sqq. 
 
 Private nuisance. If a person make an unreasonable, unwarrantable 
 or unlawful use of his property, " so as to produce material annoyance, 
 inconvenience, discomfort or hurt to his neighbor, he will be guilty of a 
 nuisance to his neighbor. Andthe law will hold him responsible for the 
 consequent damages. As to what is an unreasonable use of one's prop- 
 erty cannot be defined by any certain general rules, but must depend upon 
 the circumstances of each case. The use of property in one locality and 
 under some circumstances may be lawful and reasonable, which, under 
 other circumstances, would be unlawful, unreasonable and a nuisance. 
 To constitute a nuisance, the use must be such as to produce a tangible 
 and appreciable injury to neighboring property, or such as to render its 
 enjoyment specially uncomfortable or inconvenient." Campbell v. 
 Seaman, 63 N. Y. 577; 26 Am. Eep. 562. 
 
 Accordingly in the case Cranford v. Terrill (128 N. Y. 344; 28 N. E, Rep. 
 514) It was said by the court: " If the use of the property is one which 
 renders a neighbor's occupation and enjoyment physically uncomfortable, 
 or which may be hurtful to the health, as where trades are conducted 
 which are offensive by reason of odors, noises, or other Injuries or 
 annoying features, the private nuisance Is deemed to be established, 
 against which the protection of a court of equity power may be Invoked." 
 Cranford B. Terrill, 128 N. Y. 344; 28 N. B. Kep. 514. See Chivery v. 
 Streeper, 24 Fla. 103; Porterfleld v. Bond, 38 Fed. Eep. 391; Bohan v. F. 
 J. G. L. Co., 45 Hun, 257; Freudenstein v. Heine, 6 Mo. App. 287; Guille 
 V. Swan, 19 Johns. 381 ; Vandenburgh v. Truax, 4 Denio, 464 ; 47 Am. Dec. 
 268; Olmsted v. Rich, 6 N. Y. S. Rep. 826; Bonnell o. Smith, 53 la. 281; 
 Powell V. Bentley & Gerwig Furniture Co., 34 W. Va. 804; 12 S. E. Rep. 
 1086. ■ 
 
492 NUISANCE. 
 
 which he is in possession, without regard to the quality of 
 the tenure (o). Blaokstone'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 \n number, but fall 
 for practical purposes into certain well recognized classes. 
 
 Kinds of nuisance affecting — 1. Ownership. Some 
 acts are nuisances, according to the old authorities and the 
 course of procedure on which they were founded, which 
 
 (0) See per JesBel M. B. in Jories v. (p) Coram, ill. 216. 
 
 Chappea (1875) , 20 Eq. at p. 543. 
 
 Ownership. Trees or overhanging branches, in so far as they ar6 on 
 or over the adjoining land, belong to the owner of such land and may be 
 cut or trimmed by him at his pleasure. The fact that the owner of the 
 land on which the trees were planted used them and converted the 
 overhanging branches to bis own use has no effect in rendering them a 
 nuisance. Grandona v. Lovdal, 78 Cal. 6ll; 26 Pac. Kep. 366. See 
 Tlssot v. Great Southern Tel. etc. Co., 39 La. An. 996 ; Countryman v, 
 Idghthill, 21 Hun, 405. 
 
 In Meyer v. Metzler (51 CaJ. 142) the court said : " It is found as 
 a fact that the projection of the defendant's west waU prevents the 
 plaintiff from raising and repairing his own building, which improve- 
 ment it is also found that be is desirous of making," and it was held, 
 that this amounted to an obstruction of the free use of the plaintiff's 
 property, and was therefore a nuisance. See Commonwealth », Blais- 
 dell, 107 Mass. 234; Wilmarth v. Woodcock, 58 Mich. 402; 66 Mich. 331 ; 
 33 N..W. Bep. 400; Miles v. Worcester, 164 Mass. 511 ; 28 N. E. Bep. 676. 
 
 So, with reference to water-courses. " It is a principle of the common 
 law, that the erection of anything in the upper part of a stream of water, 
 which poisons, corrupts, or renders it offensive and unwholesome, is 
 actionable." Howell e. McCoy, 3 Rawle, 268. See Gladfelter v. 
 Walker, 40 Md. 1; Merrifleld v. Lombard, 13 Allen, 16; Woodyear o. 
 Schaefer, 57 Md. 1; Jackman v. Arlington Mills, 137 Mass, 277; Holsman 
 V. BoUing Spring Bleaching Co., 14 N. J. Eq. 335; Kichmond Mfg. Co. v. 
 Atlantic Delaine Co., 10 R. I. 106; Lockwood etc, Co. o. Lawrence, 77 
 Me. 297; Snow ». Parsons, 28 Vt. 459; Silver Spring, etc. Co. v. Wans- 
 kuck Co., 13 E. I. 611; Merrifleld ». Worcester, 110 Mass, 216; 14 Am. 
 Rep. 592; Penn. Coal Co. v. Sanderson, 113 Pa. St. 126; Haucko. Tide 
 Water Pipe Line Co., 153 Pa. St. 366; 26 At. Rep. 644; 32 W. H. C. 45. 
 
 With regard to lateral support of land it may be said, that a person 
 
SPECIES OF PRIVATE NUISANCE. 493 
 
 involve such direct interference with the rights of a 
 possessor as to be also trespasses, or hardly distiogaishable 
 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 " (g). And it is stated to be a 
 nuisance if a tree growing on my land overhangs the 
 public road or my neighbour's land (?•). In this class of 
 cases nuisance 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 seeking the 
 proper remedy was fatal, there was a greater variety and 
 choice of remedies than for ordinary trespasses. There- 
 fore it is in such a case needless to inquire, except for the 
 assessment of damages, whether thiere is anything like 
 nuisance in the popular sense. Still there is a real distinc- 
 tion 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 the incommodity which is proved in fact to be the 
 consequence, or is presumed by the law to be the natural 
 
 (g) F. N. B. 184 J).; Penruddoelfs ca., 5 (s) Fap v. PretUice, note (s), where 
 
 Co. Eep. 100 b; Fay v. Prentice (1845), 1 the Court was astute to support the 
 C. B. 829, 14 L. J. C. P. 298. , declaration after verdict. 
 
 (r) Best J. in Barl of Lonsdale v. 
 NeUon (1823) , 3 B. & C. 302, 311. 
 
 may for a lawful purpose dig into his own soil so near to the land of 
 another, as to unsettle the foundation of a building thereon, and be 
 answerable only for the natural and necessary consequences of his act in 
 its effect upon the adjoining soil, and not for the value of the house of 
 his neighbor put upon or near the line. Cahil v, Eastman, 18 Minn. 339; 
 10 Am. Eep. 184; Eadcliff v. Mayor etc. of Brooklyn, i N. Y. 196; Foley 
 V. Wyeth, 2 Allen, 131 ; Patton v. Holland, 17 Johns. 92 ; La Sala v. 
 Holbrook, 4 Paige, 169; Farrand ». Marshall, 21 Barb. 409; Qulncy«. 
 Jones, 76 111. 231; Thurston v. Vermont Cent. R. Co., 25 Vt. 465; Tun- 
 stall V. Christian, 80 Va. 1; McMillan v. Watt, 27 Ohio St. 306. 
 
494 NUISANCE. 
 
 and necessary consequence, of such interference: thus an 
 overhanging roof or cornice is a nuisance to the land it 
 overhangs because of the necessary tendency to discharge 
 rain-water upon it (t). 
 
 3. lura In re allena. Another kind of nuisance consists 
 in obstructions of rights of way and other rights over the 
 property of others. " The parishioners may pull down a 
 wall which is set up to their nuisance in their way to the 
 church" (u). In modern times the most frequent and 
 important examples of this class are eases of interference 
 with rights to light. Here the right itself is a right not of 
 dominion, but of use; and therefore no wrong is done (v) 
 unless and until there is a sensible interference with its 
 enjoyment, as we shall see hereafter. 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 (_w). 
 
 3. Convenience and enjoyment. A third kind, and 
 that which is most commonly spoken of by the technical 
 name, is the continuous doing of something which interferes 
 
 (t) £aten'8 ca.t 9 Co. Bep. 53 b. Turner y. IHngwood JJighway Board 
 
 (u) F. N. B. 186 B. (1810), 9 Eq. 418. 
 
 (i?) Otherwise aq to public ways; see (w) Bitrrop v. Birst (1868), L. R. 1 Ex. 
 
 43, 38 L. J. Ex. 1. 
 
 lura In re aliena. "It is clear that, when any public way is unnec- 
 essarily obstructed, any individual who wants to use it in a lawful way 
 maj- remove the obstruction." Arundel -o. McCuUoch, 10 Mass. 70. 
 See Burnham ». Hotchkiss, 14 Conn. 310; Low b. Enowlton, 26 Me. 128; 
 45 Am. Dec. 100. See post, p. 371. "With reference to interference 
 with lights, see, ipost, pp. 365 et seq. 
 
 Convenience and enjoyment. Much that has been already said indi- 
 cates that the continuity of the cause of complaint is necessary before it 
 can be adjudged a nuisance, and this is true. No single act or occurrence 
 however violent or offensive, unhealthful or injurious in its consequences 
 
SPECIES OF PRIVATE NUISANCE. 495 
 
 with another's health or comfort in the occupation of his 
 property, such as carrying on a noisy or offensive trade. 
 
 can constitute a nuisance, for it is essential tliat there *e continuous 
 repetition of the alleged wrong. Omaha etc. E. Co. v. Standen, 22 Neb. 
 343; 35 N. W. Rep. 183; Turner v. Holtzman, 64 Md. 148; 39 Am. Rep. 
 361; Baldwins. Oskaloosa Gas Light Co., 67 la. 51; Brown i;. Carolina 
 Central Ry. Co., 83 N. C. 128; Baugh v. State, 14 Ind. 29; Wroe v. State, 
 8 Md, 416; State v. Hull, 21 Me. 84. While it is not e.ssential that the 
 injury should be strictly continuous, it must not be only occasional 
 or accidental. Rouse v. Martin, 75 Ala. 670; English ». Progress etc. 
 Co., 95 Ala. 259; 10 So. Rep. 133. Thus trifling or occasional noises 
 incident to the ordinary use of property, or in pursuance of a trade or 
 calling do not, ordinarily, constitute a nuisance, though those in the 
 neighborhood are disturbed. Rogers v. Elliott, 146 Mass. 349. But 
 where noises are continuous and disturb the neighborhood they have 
 frequently been declared to be a nuisance; as in Davis v. Sawyer, (133 
 Mass. 289; 43 Am. Rep. 619), the ringing of a teavy factory bell early in 
 the morning was adjudged a nuisance. And in McKeon v. Lee (61 N. 
 Y. 800; 10 Am. Rep. 659), sawing of marble, accompanied by a jar 
 which shook the plaintifC's building, was held to be a nuisance which 
 should be enjoined. In. a number of other cases noises of diverse kinds 
 have been held to constitute nuisances. See State v. Powell, 70 N, C. 67; 
 Commonwealths. Oakes, 113 Mass. 8; Commonwealth v. Harris, 101 Id. 
 29 ; Parker v. Union Woolen Works, 42 Conn. 399 ; Night v. Goodyear, 
 etc. Mfg. Co., 38 Id. 438; 9 Am. Rep. 406; Brill v. Flager, 23 Wend. 354; 
 Tanner v. Village of Albion, 6 Hill, 123 ; Wallace v, Auer, 10 Phila. Rep. 
 356; Bishop v. Banks, 33 Conn. 121; 87 Am. Dec. 197; Dargan v. Wad- 
 dill, 9 Ired. 244; 49 Am. Dec. 421. See noises, post, p. 604. 
 
 «' No principle is better settled than that where a trade or business is 
 carried on in such a manner as to interfere with a reasonable andcoinfort- 
 able enjoyment by another of his property, or which occasions material 
 injury to the property itself, a wrong is done to the neighboring owner, 
 for which an action will lie. And this, too, is without regard to the 
 locality where such business is carried on; and this too, although the 
 business may be a lawful business and one useful to the public, and 
 although the best and most approved appliances and methods may be 
 used in the conduct and management of the business." Susquehanna 
 Fertilizer Co. o. Malone, 73 Md. 276. "If one carried on a lawful trade 
 or business in such a manner as to prove a nuisance to his neighbor he 
 must answer in damages, and it is not necessary to a right of action that 
 the owner should be driven from his dwelling, it is enough that the 
 enjoyment of life and property be rendered uncomfortable." Bohan v. 
 P. J. G. L. Co., 122 N. Y. 23; 26 N. E. Rep. 246; Ballentine v. Webb, 84 
 Mich. 38;47N. W. Rep. 485; Gilbert w. Showerman,23 Mich. 448; Cleve- 
 land V. Gas Light Co., 20 N. J. Eq. 205. 
 
496 NUISANCE. 
 
 Continuity is a material factor : merely temporary incon- 
 venience caused to a neighbour by " the execution of 
 lawful works in the ordinary user of land" is not a 
 nuisance {x). 
 
 Measure of nuisance. What amount of annoyance or 
 inconvenience will amount to a nuisance in point of law 
 cannot, by the nature of the question, be defined in pre- 
 cise terms (2/). Attempts have been made to set more or 
 less arbitrary limits to the jurisdiction of the Courts especi- 
 ally in cases of miscellaneous nuisance, as we may call 
 them, but they have failed in every direction. 
 
 Injury to bealth need not be sbown. (a) It is not 
 
 necessary to constitute a private nuisance that the acts or 
 state of things complained of should be noxious in the 
 sense of being injurious to health. It is enough that there 
 is a material interference with the ordinary comfort and 
 convenience of life — "the physical comfort of human 
 existence " — by an ordinary and reasonable standard (s) ; 
 
 (k) Harrison'y. Sauthwarlc^ VauxluM sance, see Tad-Heatly v. ienftam (1888), 
 Water Co., '91, 2 Ch. 409,60 L. J. Ch. 630. 40 Ch. Div. 80, 58 L. J. Ch. 83. 
 
 ()/) Aa to the construction of " nnl- (s) Walter t. Selfe, 4 De G. & Sm. 315, 
 
 sance" in a covenant, which it seems 321, 322, 20 L. J. Ch. 433 (Knight Brace 
 need not be confined to tortious nni- V.-O. 1851); Crump y. Lambert (1867), 3 
 
 Eq. 409. 
 
 Injury to liealtli need not be shown. Agreeing with the text, vide 
 Croker v. Birge, 9 Ga. 428 ; Cleveland v. Gaslight Co., 20 N. J. Eq. 205, 
 supra. 
 
 In Hazard Powder Co. o. "Volger, 68 Fed. Rep. 156, Justice Caldwell, 
 delivering the opinion, said: " The inaintenance by the defendant of a 
 powder magazine containing a large quantity of powder, within the city 
 limits, in violation of the city ordinance, was a nuisance which rendered 
 the defendant liable for the injury resulting to the plaintiff from its 
 explosion. It is no defense to such an action that the magazine was 
 properly constructed and the powder carefully stored therein, and that 
 the explosion was due to no personal negligence of the defendant or its 
 agents. It is liable for the Injuries resulting from its explosion from 
 any cause, because its location under the ordinance made it a nuisance. 
 Powder Co. v. Tearney, 131 111. 322; 23 N. E. Rep. 389; Cheatham v. 
 SLearon, 1 Swan, 213; 1 Dill. Mun. Corp., sec. 374, note, p. 449." 
 
WHAT AMOUNTS TO NUISANCE. 497 
 
 there must be something more than mere loss of 
 amenity (a), but there need not be positive hurt or disease. 
 
 Plaintiff not disentitled by having come to the nui- 
 sance, (b) In ascertaining whether the property of the 
 plaintiff is in fact injured, or his comfort or convenience in 
 
 (a) Salvin v. JVbrth Brancepafh Coal Co. (1874), 9 Ch, 705, 44 L. J. Oh. 149; see 
 jndgment of James L. J. at pp. 709, 710. 
 
 Plaintiff not disentitled by having come to the nuisance. It Is a 
 general rule that the fact that the plaintiff " came to a nuisance," consti- 
 tutes no defense to this action. Hazard Powder Co. v. Volger, 68 Fed. 
 Kep. 162, citing Marine Ins. Co. v. St. Louis, I. M. & S. K. Co., il Fed. 
 Rep. 643, 652, 653; Railroad Co. v. English, 93 Ga. 366. 
 
 "With the contrary rule the material development of the country would 
 often be hindered and public improvements sometimes prohibited. In 
 the building of cities the extension of residence additions frequently 
 necessitates the removal of offensive trades and industries into less pop- 
 ulous districts. But In the adjustment of the equities between the 
 parties in such cases regard should be had for all the circumstances, 
 including the kind and degree of the annoyance, the time established, 
 the diflSculty of removal, and the value of the property or business com- 
 plained of. It was said by Justice Sharswood in Weir's Appeal (74 
 Pa. St. 230): "There Is a very marked distinction to be observed 
 in reason and equity between the cases of a business long established in 
 a particular locality, which has become a nuisance from the growth of - 
 population and the erection of dwellings in proximity to it and that of a 
 new erection threatened in such vicinity. Carrying on an offensive trade 
 for any number of years, in a place remote from buildings and public 
 roads, does not entitle the owner to continue it in the same place after 
 the houses have been built and roads laid out in the neighborhood, to 
 the occupants of which and the travellers upo'n which, It is a nuisance. 
 As the city extends, such nuisances should be removed to the vacant 
 grounds beyond the immediate neighborhood of the residences of the citi- 
 zens. * * * It certainly ought to be a much clearer case, however, 
 to justify a court of equity in stretching forth the strong arm of injunc- 
 tions to compel a man to remove an establishment In which he has 
 invested his capital and been carrying on a business for a long period of 
 time, than in the case of one who comes into a neighborhood proposing 
 to establish such a business for the first time, and who is met at the 
 threshold of his enterprise by a remonstrance and notice that if he per- 
 sists in his purpose application will be made to the court of equity to 
 prevent him." We may supplement these well considered remarks by 
 saying that they apply with especial force to a case where the property 
 
 32 
 
498 NUISANCE. 
 
 fact materially interfered with, by an alleged nuieance, re- 
 gard is had to the character of the neighbourhood and the 
 pre-existing circumstances (b). But the fact that the 
 plaintiff was already exposed to some inconvenience of the 
 same kind will not of itself deprive him of his remedy. 
 •Even if there was already a nuisance, that is not a reason 
 why the defendant should set up an additional nuisance (c). 
 The fact that other persons are wrong-doers in the like sort 
 is no excuse for a wrong-doer. If it is said " This is but 
 one nuisance among many," the answer is that, if the others 
 were away, this one remaining would clearly be 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 prescrip-. 
 tive right to continue it in all events might be acquired 
 undercover of the other nuisances ; therfefore it must be 
 wrongful from the first (d). 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 man came to the nuisance, as was 
 said, he had no remedy (e); but this has long ceased to be 
 law as regards both the remedy By'damages (f) and the 
 remedy by injunction (g). The defendant may in some 
 cases justify by prescription, or the plaintiff be barred of 
 
 (6) St. Belen's Smelting Co. v. Tipping (e) Blackstone ii. 403. 
 
 (1866), 11 H. L. 0. 642, 35 L. J. Q. B. 66; (/) E. g. St. Helen's Smelting Co. v. 
 
 Sturges v. Bridgman (1879), 11 CU. Div. at Tipping (1865), 11 H. L. C. 642, 35 L. J. Q. 
 
 p. 865. B. 66. 
 
 (0) Walter v. Selfe, note (a). ig) Tipping v. St. Helen's SmelUng Co. 
 
 (d) Crossley v. Idghtomler (1867), 2 Ch. (1865), 1 Oh. 66, a sait loi' injunction on 
 
 478, 36 L. J. Ch. 884. The same point was the same facts ; Fleming v. Bislop (1886), 
 
 (among others) decided many years 11 App. Ca. (Sc.) 686,688, 697. 
 earlier (1849), in Wood v. Waud, S Ex. 
 748, 18 L. J. Ex. 305. 
 
 alleged to be a nuisance cannot be removed, and a decree to abate it 
 Qieans its destruction, in such cases a court of equity should move 
 slowly and decline to act upon conflicting evidence. Appeal of 
 McClain (Pa.), 18 At. Eep. 1066. See People v. White Lead Works, 82 
 Mich. 477; 46 N. W. Kep. 735; Commo;iwealth v. Upton, 6 Gray, 472; 
 Susquehanna Fertilizing Co. v. Malone, 73 Md. 281 ; 20 At. Rep. 900. 
 
WHAT AMOUNTS TO NUISANCE. 499 
 
 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 lioisej vibra- 
 tion, or the like, caused by Peter's business to be a nui- 
 sance, Peter cannot justify continuing his operations as 
 against John by showing that before John's building was 
 occupied, John or his predecessors in title made no com- 
 plaint {h). 
 
 Innocent or necessary character per se of offensive 
 occupation is no answer, (c) Again a nuisance is not 
 justified by showing that the trade or occupation causing 
 
 tft) Stwrges v. Bridgmam (1879), 11 Oh. Div. 852, 48 L. J. Ch. S7S. . 
 
 Innocent or necessary character per se of offensive occupation Is no 
 ans-wer. It has been concisely said : " The best intentions cannot prevent 
 an act from being a nuisance where it otherwise is such, and the worst in- 
 tentions cannot make an act a nuisance where it otherwise is uoh The in- 
 tention might, to be sure, be a proper subject of Inquiry upon the question 
 of exemplary damages." Bonnellc. Smith, 53 la. 282. While it is a general 
 rule that the court will not justify a positive nuisance for the reason that it 
 is a public necessity yet public benefits and advantages are properly con- 
 sidered in determining such questions, and if the Individual injury be 
 trifling and the public benefit great that which is complained of will be 
 usually not interfered with by law. Justice Harlan in delivering the 
 opinion of the court in the case of New Orleans Gas Light Co. v. Louis- 
 iana Light Co. (115 U. S. 650-669), said; " The manufacture of gas and 
 its distribution for public and private use by means of pipes laid, under 
 legislative authority, in the streets and ways of the city, is not an or- 
 dinary business in which every one may engage, but is a franchise 
 belonging to the government, to be granted for the accomplishment for 
 public objects to whomsoever and upon what terms it pleases. It is a 
 business of the public nature and makes a public necessity for which the 
 State may make provision. It is one which so far from affecting the 
 public injuriously as to become one of the most important agencies of 
 civilization for the promoting of the public convenience and public 
 
500 NUISANCE. 
 
 the annoyance is, apart from thai annoyance, an innocent 
 or laudable one. "The building of a lime-kiln is good and 
 profitable ; but it it be built so near a house that when it 
 burns the smoke thereof enters into the house, so that 
 none can dwell there, an action lies for it " (i). "A tan- 
 house is necessary, for all men wear shoes ; and neverthe- 
 less it may be pulled down if it be erected to the nuisance 
 of another. In like manner of a glkss-house ; and they 
 ought to be erected in places convenient for them " (/). 
 &o 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 {Ic). Learned and charitable 
 foundations are commended in sundry places of our books ; 
 but the fact that a new building- is being erected by a 
 colliege for purposes of good education and the advancement 
 of- learning will not make it the less a wrong if the sawing 
 of stone by the builders drives a neighbouring inhabitant 
 out of his house. 
 
 (i) ^Zdred's CO., 9 Co. Bep. 69 a. (k) Aldred'sca. note (i). Cp. Broder 
 
 U) Jones V. Powen, Palm. 539, ap- v. Sofflord (lS78),2 01i. D.692, 701 (Jessel 
 
 proved and explained by Ex, Ch. In M. B.), 451.. J. Cti.4U, followed and per - 
 
 Bamford v. TumUy (1862), 3 B. & S. 66, haps extended in Remhardt T. Mentasti 
 
 31 L. J. Q. B. 286. Ab to " convenient " (1889) , 42 Oh. D. 685, 68 L. J. Oh. 787. 
 see next paragraph. 
 
 safety." It is stated, further, in this case,, that such a business should, 
 however, be carried on in such a manner as to not unnecesaaxily aSect 
 and injure others. Improper places for the establishment of a business 
 may be selected or the business may be conducted without the proper 
 skill, and in either case it becomes a nuisance. See City of Fresno v. 
 Fresno etc. Co. (Cal.), 32 Pac. Eep. 9*3. 
 
 In the case of Pilcher v. Hart (1 Humphries-, 524) where a wharf boat 
 had been erected in a navigable stream it was-hdd, that if the navigation 
 . be not impeded by the erection, or if the public advantage greatly over- 
 balances the inconvenience produced it would not be a nuisanee^ See 
 RadclifE v. Mayor etc Brooklyn, 4 N. Y. 195; Works ». Junction R. Co. 
 5 McLean, 425, • Carroll©. Wisconsin Cent. B. Co., 40 Minn. 168; 41 N. 
 W. Eep. 661. 
 
WHAT AMOUNTS TO NUISANCE. 601 
 
 Convenience df <place per se no answer. i(d) Where 
 the nuisance complainecl of consists wholly or >chiefly in 
 dan[iage to property, sudh damage must be proved as is of 
 appreciable magnitude and apparent to persons of common 
 intelligence; not merely something discoverable only by 
 scientific teSts (I). And acts in themselves lawful and 
 innoxious do not become a nuisance merely because they 
 make a neighbouring house or room less 'fit for carrying on 
 some particular industry, without interfering with the 
 
 (0 Salvin v. North Brancepeth Coal Co. (1874), 9 Oh. 705, 44 L. J. Ch. 149. 
 
 ppnvenience of place per se is no ans-wer. In accord with the text, 
 in the case of the Susquehanna Fertilizer Co. ■«. Malone ^(78 Md. 880; 20 
 At. Eep. 900), the court said : " We cannot agree with the appellant that 
 the court ought to have directed the jury to find Whether the place where 
 the factory was located was a convenient and proper place 'for the carry- 
 ing on of the appellant's business, and whether such a use of his prop- 
 erty was a reasonable use, and if they Should so find the verdict must 
 be for the defendant. It may be convenient to the defendant, and it may 
 be convenient to the public, but, in the eye of -the 'law, no place can be 
 convenient for the carrying on of a business which is a nuisance, and 
 which causes substantial injury to the property of another. Nor can 
 any use of one's own land be said to be a reasonable use, which de- 
 prives an adjoining owner of the lawful use and enjoyment of his prop- 
 perty. * * * So we take the law to be well settled that, In actions of 
 this kind, the question whether the place where the trade or business is 
 carried on, Is a proper and convenient place for the purpose, or whether 
 the use by the defendant of his own land is, under circumstances, a rea- 
 sonable use, are questions which ought now to be submitted to the finding 
 of the jury. We fully agree that, In actions of this kind, the law does 
 not regard trifling inconveniences; that everything must be looked at 
 from a reasonable point of view, that in determining the question of 
 nuisance in such cases, the locality and all the surrounding circum- 
 stances should be taken into consideration ; and that where expensive 
 works have been erected and carried on, which are useful and needful to 
 the public, persons cannot stand on extreme rights, and bring actions in 
 respect to every trifling annoyance, otherwise, business should not be 
 carried on in such places. But still if the result 'of the trade or busi- 
 ness thus carried on is such as to interfere with the physioal'corafoi't, by 
 another, of his property or such as to occasion substarntial injuTy to the 
 property itself, there is wrong to the neighboring owner for Which an 
 action will lie." 
 
I 
 
 502 NUISANCE. 
 
 ordinary enjoyment of life (m). Bat wtiere material 
 damage in this sense is proved, or material discomfort 
 according to a sober and reasonable standard of comfort, 
 it is no answer to say that the offending work or manufac-. 
 ture is carried on at a place in itself proper and convenient 
 for the purpose. A right to do something that otherwise 
 would be a nuisance may be established by prescription, 
 but nothing less will serve. Or in other words a place is 
 not in the sense of the law convenient for me to burn 
 bricks in, or smelt copper, or carry on chemical works, if 
 that use of the place is convenient to myself but creates a 
 nuisance to my neighbour («.). 
 
 Modes of annoyance, (e) No particular combination 
 of sources of annoyance is necessary to constitute a nuisance, 
 nor are the possible sources of annoyance exhaustively 
 
 (m) Mobinson v. Kilvert (1889), 41 Oh. Bigelow L. 0. 454; Bamford v. Turrdey 
 
 Div. 88, 58 L. J. Oh. 392. The ordinary (1862), Ex. Ch. 3 H. & S. 66, 31 L. J. Q. B. 
 
 enjoyment ol life, however, seems to 286; Carey v. Ledbitter (1862-3), 13 C. B. 
 
 inclade the maintenance of a due tem- N. S. 470, 32 L. J. 0. P. 104. These 
 
 perature in one's wine cellar : Bernhardt authorities overrale Hole v. Barlme 
 
 V. MentasU, note (ft) above. (1858), 4 0. B. N. S. 334, 27 L. J. 0. P. 207; 
 
 (71) St. Jlelen's Smelting Co. v. Tippvng see Shotts Iran Co. v. Inglis (1882), 7 App. 
 
 (1865), 11 H. L. 0. 642, 36 L. J. Q.B. 66, Ca. So. at p. 528. 
 
 Modes annoyance. The decided cases show the character and extent 
 of wrongs constituting nuisances, and illustratie the application of the 
 very general rules that have been formulated in law for tietejmining 
 what are and what are not nuisances. It may be said here tbaftt^ 
 always essential that the Injury be substantial and apparent, and thatlt 
 be th^ natural consequential result of that which is charged to create tbe 
 nuisance. Norcross v. Thorns, 51 Me. 504. For the reason that nearly 
 every material thing may, by its unlawful nature or unlawful use or con- 
 dition, become a nuisance, the cases deciding the various questions are 
 so numerous that it Is found to be impracticable to even digest them 
 here and the following statement of classified citations to them has been 
 arranged. 
 
 Blasting. Blasting rock, to the danger of the neighborhood, is ordi- 
 narily a nuisance. Rogers v. Hanfield, 14 Daly, 339; Hunter v. Farren, 
 127 Mass. 481; 34 Am. Dec. 423; Hay v. Cohoes Co., 2 N. Y. 159; 51 Am. 
 Dec. 179; Tremain v. Cohoes Co., 2 N, Y. 163; 51 Am. Dec. 284; Scott «. 
 Bay, 3 Md. 431. 
 
 Cemetertj. A cemetery or tomb may by reason of its location or con- 
 
WHAT AMOUNTS TO NUISANCE. 5U3 
 
 defined by any rule of law. " Smoke, unaccompanied with 
 noise or noxious vapour, noise alone, offensive vapours alone, 
 
 dltion become a nuisance. Barnes v. Hathorn, Bi Me. 124; Kingbury v. 
 Flowers, 66 Ala. 479; 39 Am. Rep. 14; Begein ?;. Anderson, 28 Ind. 79; 
 Monk V. Packard, 71 Me. 309; 86 Am. Rep. 315; Dunn v. Austin (Tex.), 
 11 S. W. Rep. 1125; Musgrove v. St. Louis Church, 10 La. An. 413; Jung 
 V. Neraz, 71 Tex. 396. 
 
 Diseased ieasts. The owner of domestic animals, having an Infec- 
 tious or contagious disease, who sells them to one who is not informed 
 of their condition or allows them to run at. large, may thus create a 
 nuisance and become responsible therefor. Jeffreys Bigelow, 13 Wend. 
 518; Fisher v. Clark, 41 Barb. 329;Kemmish ». Ball, 30 Fed Eep. 759; 
 Hawks V. Locke, 139 Mass. 205. 
 
 Explosive and inflammable substances. Explosive and inflammable 
 substances, when so kept as to specially endanger lives or property of 
 people living in the neighborhood, are a nuisance. Cuff v. Newark, etc. 
 R. Co., 35 N. J. L. 17; 10 Am. Rep. 205; McAndrews v. Collerd, 42 Id. 
 189; 36 Am. Rep. 508; Cook v. Anderson, 85 Ala. 99; Boston, etc. R. 
 Co. V. Carney, 107 Mass. 568; Carter v. Towne, 98 Mass. 567; Meyers v, 
 Malcolm, 6 Hill, 292; 41 Am. Dec. 744; People v. Sands, 1 Johns 78; 3 
 Am. Dec. 296; Heeg v. Licht, 80 N. Y. 579; 36 Am. Rep. 654; Comminge 
 V. Stevenson, 70 Tex. 642; Cheatham v. Sherron, I Swan, 213; Laflin- 
 Eand Powder Co. v. Tearney, 131 111. 322; 23 N. E. Rep. 389; Conklin v. 
 Thompson, 29 Barb. -218; Cole ». Fisher, 11 Mass. 137; Hazard Powder 
 Co. V. Volger, 58 Fed. Rep. 152, 158. 
 
 Fire-arms. The continuous use of fire-arms to the danger of persons 
 in the vicinity is a nuisance. Conradt v. Clauve, 93 Ind. 476 ; Jenne v. 
 Sutton, 43 N. J. L. 257; Welch v. Durand, 36 Conn. 182; Bullock v. Bab- 
 cock, 3 Wend. 391; Chatalgne v. Bergeron, 10 La. An. 699; Sutton v. 
 Bonnett, 114 Ind. 243; 16 N. E. Rep. 180. 
 
 Mres. Inasmuch as fire is a dangerous element care in using it is 
 required of every one, otherwise it may become a nuisance. Scott v. 
 Hale, 16 Me. 326; Sweeney v. Merrill, 38 Kan. 218; 16 Pac. Rep. 454; 
 Hewey v. Nourse, 54 Me. 256; Barnard v. Poor, 21 Pick. 378; Bachelder 
 V. Heagan, 18 Me. 30; Fahn v. Reichart, 8 Wis. 225; Mich. Cent. B. Co. 
 V. Anderson, 20 Mich. 244; Tourtellot v. Rosebrook, 11 Mete. 462; 
 Miller v. Martin, 16 Mo. 508; Averitt v. Murrell, 4 Jones L. 322; Gagg?;. 
 Vetter, 41 Ind. 228; Teall v. Barton, 40 Barb. 137; Calkins v. Barger, 44 
 Id. 424; Catron v. Nichols, 81 Mo. 80; Higgins u. Dewey, 107 Mass. 494; 
 9 Am. Rep. 63; Garrett v. Freeman, 6 Jones L. 78; Jacobs v. Andrew, 4' 
 la. 606; Johnston v. Barber, 10 111. 425; Armstrong v. Cooley, Id. 509; 
 Wilson V. Peverly, 2 N. H. 648; Ayer v. Starkey, 30 Conn. 304; Finley v. 
 Langston, 12 Mo. 120 ; Burton v. McClellan, 3 111. 434 ; Cook v. Johnston, 
 58 Mich. 437. 
 Fires communicated by machinery. Those using machinery, which is 
 
504 NUISANCE. 
 
 although not injurious to health, may severally constitute a 
 nuisance to the owner of adjoining or neighbouring 
 
 likely to cause or scatter fire are requiredby law to use the best approved 
 appliances for the prevention of danger, and to exercise due care in the 
 operation of the machinery. Teal v. Barton, 40 Barb. 137; Sheldon®. 
 Hud. Riv. R. Co., 29 Id. 226; JefEeris v. Phila. etc. R. Co., 3 Houst. 447; 
 Huyett V. Phila. etc. R. Co., 23 Pa. St. 373; McCready v. So. Car. R. Co., 
 2 Strobh. 356; Hull v. Sac. Val. R. Co., 14 Cal. 387; Mobile, etc. R. Co. 
 V. Gray, 62 Miss. 383; HofE v. West Jersey R. Co., 45 N. J. L. 201; 111. 
 Cent. R. Co. •». McCleland, 42 111. 355 ; Frankford, etc. Co. v. Phila. etc. 
 R. Co., 54 Pa. St. 345; Anderson v. Cape Fear Steamboat Co., 64 N. C. 
 399; Chicago, etc. R. Co. v. McCahill, 54 111. 28; Toledo etc. R. Co. v. 
 Corn, 71 111. 493; Penn. R. Co. v. Hope, 80 Pa. St. 373; Lehigh etc. R. 
 Co. V. McKeen, 90 Id. 122; Brushberg v. Milw. etc. Ey. Co., 55 Wis. 106; 
 Erd V. Chicago, etc. R. Co., 30 Id. 110; Ellis v. Portsmouth, etc. R. Co., 
 2 Ired. 138; RufEner ».Railroad Co., 34 Ohio St. 96; Chapman d. Atlantic, 
 etc. R. Co., 37 Me. 92; Pratt v. Same, 42 Id. 579; Rowell e. Railroad 
 Co., 57 N. H. 132; Simmonds v. New York, etc. R. Co., 52 Conn. 264; 
 Webb V. Rome, etc. R.Co., 49 N. Y. 420; Gibbons v. Wisconsin, etc. Ry. 
 Co., 66 Wis. 161; Flynn v. San Francisco, etc. Ry. Co., 40 Cal. 14. 
 
 Noises. Offensive noises may constitute a nuisance. Ordinarily, 
 trifling or occasional noises incidentto the accustomed use of property, 
 or pursuance of a trade, do not. The time, locality, and character of the 
 noise are often important in determining the question of nuisance or no 
 nuisance. See ante, p. 495. See Brill v. Flager, 23 Wend. 354 ; Bloom- 
 huff ». State, 8 Blackf. 205; People ». Sergeant, 8 Cow. 139; Snyder v. 
 Cabel, 29 W. Va. 48; 1 S. E. Rep. 241; Dargan v. Waddill, 9 Ired. 244; 
 Hurlbut V. McKone, 55 Conn. 31; 10 A. Rep. 164; Davidson v. Isham, 9 
 N. J. Eq. 186; Bait. etc. R. Co. v. Fifth Bapt. Church, 108 U. S. 317; 
 Green v. Lake, 54 Miss. 54^0; Rhodes v. Dunbar, 57 Pa. St. 274; Duncan 
 V. Hayes, 22 N. J. Eq. 25; Whitney v. Bartholomew, 21 Conn. 213; Pach 
 V. Geoffrey, 67 Hun, 401 ; 22 N. Y. S. Rep. 275. 
 
 Offensive odors. In determining whether or not certain odors and 
 stenches constitute a nuisance, all the circumstances of the case must be 
 considered. Thus, the kind of business, trade or occupation producing 
 the cause of complaint. Its location and lawful or unlawful character are 
 , all elements to be considered. The odors must be sensibly offensive or 
 produce such actual physical discomfort as to interfere materially with 
 comfort; but it is not necessary that they be positively hurtful or un- 
 wholesome. Norcross v. Thoms, 51 Me. 503; Davidson v. Isham, 9 N. J. 
 Eq. 186; State v. Board of Health, 16 Mo. App. 8; Cleveland v. Citizens' 
 Gas Light Co., 20 N. J. Eq. 201; Wolcott v. Melick, 11 Id. 204; 66 Am. 
 Dec. 790; Commonwealth v. Brown, 13 Mete. 365; Kirkman v. Handy, 11 
 Humph. 406; 54 Am. Dec. 45; Plckard v. Collins, 23 Barb. 444; Story v. 
 Hammond, 4 Ohio, 376; Peck v. Elder, 3 Sandf. 126; Cropsey o. Murphy, 
 
WHAT AMOUNTS TO NUISANCE. 505 
 
 property " (o). The persistent ringing and tolling of large 
 bells (p), the loud music, shouting, and other noises 
 
 (o) Eomllly M. E. Orwmp v. Lamiert out (at p. 160) that snoh a building is not ' 
 
 (1867), 3 Eq. at p. 412_ a church In the eye of the law, and can- 
 
 (j>) Saltan v. -De Held (1851), 2 Sim. N. not claim the same privileges as a parish 
 
 S. 133. The hells belonged to a Roman church in respect of bell-ringing. 
 Catholic church; the judgment points 
 
 1 Hilt. 126; Shaw v. Cummiskey, 7 Pick. 76; Miller v. Trnehart, 4 Leigh, 
 569; Green B. Sayannah, 6 Ga. 1; Beach v. People, 11 Mich. 106; Neal v. 
 Henry, Meigs, 17; Rhodes v. Whitehead, 27 Tex. 304; 84 Am. Dec. 631; 
 Commonwealth v. Beed, 34 Pa. St. 275 ; 75 Am. Dec. 661 ; Commonwealth 
 ». Brown, 13 Mete. 365; Warwick v. Wah Lee, 10 Phila. Rep. 160; Ahle 
 V. Relnbach, 76 111. 322; Jarvis v. St. Louis, etc. R. Co., 26 Mo. App. 253; 
 Ellis ». Kansas City B. Co., 63 Mo. 131; 21 Am. Rep. 436; Beckley v. 
 Skrob, 19 Mo^ App. 75; State v. Moore, 31 Conn. 479; 63 Am. Dec. 159; 
 Francis v. SchoUkofE, 63 N. Y. 152; Smith v. McConathy, 11 Mo. -517; 
 Stowe ». Miles, 39 Conn. 426; Manhattan Mfg. Co. v. Van Keuren, 23 N. 
 J. Eq. 251; Eames v. New Eng. Worsted Co., 11 Mete. 570; City of 
 Rochester v. Simpson, 134 N. Y. 414; 31 N. E. Rep. 871. 
 
 The balance of the cases on this subject have been arranged in the 
 foUowing subdivisions : — 
 
 Boiling establishment. Blunt v. Hay, 4 Sandf. Ch. 862; Howard v. 
 Lee, 3 Id. 281; Smith v. Cummings, 2 Pars. Eq. Cas. 92; State v. Neidt 
 (N. J. ) 19 At. Rep. 318; Winslow v. Bloomington, 24 111. App. 647; 
 Peck V. Elder, 3 Sandf. 126; Dana v. Valentine, 5 Met. 8; Dubois v. Bud- 
 long, 15 Abb. Pr. 445; Meigs, w. Lister, 23 N. J. Eq. 320; 25 Id. 489; 
 Czarniecki's Appeal (Pa.), 11 At. Rep. 660. . 
 %y Cesspools. Ball v. Nye, 99 Mass. 582; 97 Am. Dec. 56; Wahlc v. 
 ^Relnbach, 76 111. 322; Marshall v. Cohen, 44 6a. 489; 9 Am. Rep. 170; 
 Perrine v. Taylor, 43 N. J. Eq. 128; Haugh's Appeal, 102 Pa. St. 42; 48 
 Am. Rep. 193. 
 ^ Gas works. Pottstown Gas Co. v. Murphy, 39 Pa. St. 257; Hunt v. 
 Lowell Gas Light Co., 8 Allen, 69 ; Wragg v. Commercial Gas Co., 33 Gas. 
 Jour. 119; Cleveland v. Citizens Gas Light (»o., 20 N. J. Eq. 201; Colum- 
 bus Gas Light, etc. Co. v. Ereelanfl, 12 Ohio St. 392; Pensacola Gas Co. 
 V. Pebley, 25 Fla. 381; Brown v. lUins, 27 Conn. 84; 71 Am. Dec, 49; 
 Ottawa Gas Light Co. v. Thompson, 39 HI. 598 ; Sam& v. -Graham, 28 Id. 
 73; 81 Am. Dec. 263. 
 J Livery stables, cattle yards, etc. Rounsaville ®. Kohlheim, 68 Ga. 668; 
 45 Am. Rep. 505; Filson v, Crawford, 5 N; Y. S. Rep. 882; Keiser v. 
 Lovett, 85 Md. 240; 44 Am. Rep. 10; St. James Church v. Arrington, 36 
 Ala. 548; Hastings v. Aiken, 1 Gray, 163; Flint o. Russell, 5 Dill. 161; 
 Bhiras v. Olinger, 50 la. 571; 33 Am. Rep. 138; Kirkman u. Handy, 11 
 Humph. 406; 54 Am. Dec. 45; Burdltt v. Swenson, 17 Tex. 489; 67 Am. 
 l;jc. 665, Aldrich v. Howard, 8 R. I. 246; 86 Am. Dec. 615;.Coker». 
 
506 NTJISANCE. 
 
 attending the performances of a circus (q), the collection 
 of a crowd of disorderly people by a noisy entertainment 
 
 ' (?) IncMaMy, SarringUm (ISBVI^Cb. inclnding a trombdbe and other wind 
 
 888: the circus was eighty-flve yards instramentsand aTioloncello, andgreat 
 
 from|theplamtilf* shouse, and"throngh- noise, with shouting and cracMng of 
 
 out the performance there was music, whips." 
 
 Birge, 10 Ga. 336; Dargan v. Waddill, 9 Ired. 244; 49 Am. Dec. 421; 
 Norwood V. Dickey, 18 Ga, 537; Gifford v. Hulett, 62 Vt. 342; 19 At. 
 Hep. 230; Curtis c. Winslow, 38 Vt. 690; State v. PaysoD, 37 Me. 361; 
 Baker v. Bohannan, 69 la. 60; Trulock v. Merte, 72 la. 510; State v. 
 Raster, 35 Id. 221 ; Sutterholi v. Mayor, etc. of Cedar Keys, 15 Fla. 306 ; 
 111= Cent. E. Co. v. GrabiU, 60 111. 241 ; Ohio, etc. B. Co. v. Simon, 40 
 Md. 278; Philips v. City of Denver (Colo.), 34 Pac. Eep. 902. 
 
 Slaughter houses. Commonwealtti v. Upton, 6 Gray, 476 ; Fay v. Whit- 
 man, 100 Mass. 76^ Allen v. State, 34 Tex. 230 ; Dennis v. State, 91 Ind. 73 
 Peck». Elder, 3 Sandf . 126; SMvely ». Cedar Eapids, etc. Ry. Co., (Iowa) 
 36 N. W. Rep. 133; Dubois v. Budlong, 15 Abb. Pr. 445; Seifried v. Hays, 
 81 Ky. 377; Babcock u. New Jersey Stock Yard Co., 20 N. J. Eq. 296 
 Somerville v. O'Neil, 114 Mass. 353; Watertown v. Sawyer, 109 Id. 320 
 State u. Wilson, 43 N. H. 415; 82 Am. Dec. 163; State v. Shelbyville, 4 
 Sneed (Tenn.), 176; Reichert v. Geers, 98 Md. 73; 49 Am. Eep. 736; 
 Phillips V. State, 7 Baxt. 151; Smith v. McConathy, 11 Mo. 517; Bishop 
 V. Banks, 33 Conn. 121; 87 Am. Dec. 197; Pruner v. Pendleton, 75 Va. 
 516; 40 Am. Eep. 738; Minke v. Hopeman, 87 111. 450; State v. Wolf 
 (N. C.}, 17 S. E. Eep. 528. 
 
 Tanneries. Thomas v. Brackney, 17 Barb. 654; State v. Street Com- 
 missioners, 36 N. J. L. 283; Francis v. Schoellkoph, 53 N. Y. 152; Pen- 
 noyer v. Allen, 56 Wis. 502 ; Fisher v. Clark, 41 Barb. 332 ; Weil v. Ricord, 
 24 N. J. Eq. 169 ; Kennedy v. Phelps, 10 La. An. 227. i 
 
 Smoke, vapors, etc. Where one pollutes the air on the premises of 
 another with smoke, vapors and noxious gases, thus producing, injury 
 'to property, health or comfort, the wrong has in many cases been held 
 to constitute a nuisance. Catlin v. Valentine, 9 Paige, 575 ; 38 Am. Dec. 
 567; Smith v. McConathy, 11 Mo. 517; Eoss u. Butler, 19 N. J. Eq. 294; 
 97 Am. Dec. 654; Rhodes v. Dunbar, 57 Pa. St. 274; 98 Am. Dec. 221; 
 Hyatt V. Myers, 71 N. C. 271 ; Hutchins v. Smith, 63 Barb. 252 ; Duncan v. 
 Hayes, 22 N. J. Eq. 26; Wesson v. Washburn Iron Co., 13 Allen, 95; 90 
 Am. Dec. 181; Daniels v. Keokuk Water Works, 61 la. 649; Richard's 
 Appeal, 57 Pa. St. 105; 98 Am. Dec. 202'; Thebaut v. Canova, 11 Fla. 143; 
 Norcross v. Thorns, 51 Me. 503; 81 Am. Dec. 588; Hurlburt v. McKone, 
 55 Conn. 31; Carhart v. Auburn Gas Light Co., 22 Barb. 297; Adams v. 
 Michael, 38 Md. 123; 17 Am. Rep. 615; Fuselier ». Spalding, 2 La. An. 
 773; Cogswell y. New York, etc. R, Co., 103 N. Y. 10; 59 Am. Rep. 761; 
 Beir v. Cooke, 37 Hun, 38; Campbell ». Seaman, 63 N.'Y. 368; 20 Am. 
 Rep. 567.; Sellers v. Parvis & Williams Co., 30 Fed. Rep. 164: Fogarty 
 V. Junction City etc. Co., 60 Kan. 478; 31 Pac. Rep. 1052. 
 
WHAT AMOUNTS TO NUISANCE. 507 
 
 of music and fireworks (r), to the grave annoyance of 
 dwellers in the neighbourhood, have all been held to be 
 nuisances and restrained by the authority of the Court. 
 The use of a dwelling-house in a street of dwelling- 
 houses, in an ordinary and accustomed manner, is not a 
 nuisance though it may produce more or less noise and in- 
 convenience to a neighbour. But the conversion of part 
 of a house to an unusual purpose, or the simple mainte- 
 nance of an arrangement which offends neighbours by 
 noise or otherwise tor an unusual and excessive extent, may 
 be an actionable nuisance. Many houses have stables 
 attached to them, but the man who turns the whole ground 
 floor of a London house into a stable, or otherwise keeps a 
 stable so near a neighbour's living rooms that the inhabit- 
 ants 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 (s). 
 
 " In making out a case of nuisance of this character, 
 there are always two thmgs to be considered, the right of 
 the plaintiff, and the right of the defendant. If the 
 houses adjoining each other are so built that from the 
 commencement of their existence it is manifest that each 
 adjoining inhabitant was intended to enjoy his own 
 property for the ordinary purposes for which it and all the 
 different parts of it were constructed, then so long as the 
 house is so used there is nothing that can be regarded in 
 law as a nuisance which the other party has a right to 
 prevent. But, on the other hand, if either party turns his 
 house, or any portion of it, to unusual purposes in such a 
 manner as to produce a substantial injury to his neighbour, 
 it appears to me that that is not according to principle 
 or authority a reasonable use of his own property ; and 
 
 (r) Wallcer v. Brewster (1867), 5 Eq. 24, strongly inclined to think it would, see 
 37 L. J. Ch. 33. It was not decided at p. 34. 
 
 whether the noise would alone have («) Ball t. Bay (1S73), 8 Ch. 467; 
 
 been a nuisance, but Wioteus V.-O. Broder v. Saillard (1876), 2 Oh. D. 693, 45 
 
 L. J. Ch. 414. 
 
508 NUISANCE. 
 
 his neighbour, showing substantial injury, is entitled to 
 protection" (i). 
 
 Injury common to the plaintiff with others, (f) 
 
 Where a distinct private right is infringed, though it be 
 only a right enjoyed in common with other persons, it is 
 immaterial that the plaintiflF- suffered no specific injury be- 
 yond those other persons, or no specific injury at all. 
 Thus any one commoner can sue a stranger who lets his 
 cattle depasture the common (m) ; and any one of a num- 
 ber of inhabitants entitled by local custom to a particular 
 water supply can sue a neighbour who obstructs that 
 supply (w). It should seem from the ratio decidendi of 
 the House of Lords in Lyon v. Fishmongers' Company (cc), 
 that the rights of access to a highway or a navigable river 
 incident to the occupation of tenements thereto adjacent 
 are private rights within the meaning of this rule {y). 
 
 Injury caused by independent acts of different persons. 
 
 (g) A cause of action for nuisance may be created by 
 independent acts of different persons, though the acts of 
 any one of those persons would not amount to a nuisance. 
 " Suppose one person leaves a wheelbarrow standing on a 
 way, that may cause no appreciable inconvenience, but 
 if a hundred do so, that may cause a serious incon- 
 venience, which a person entitled to the^use of the way has 
 a right to prevent ; and it is no defence to any one person 
 among the hundred to say that what he does causes of 
 itself no damage to the complainant " (2). 
 
 Obstruction of lights. A species of nuisance which has 
 become prominent in modern law, by reason of the increased 
 
 {<) Lord Selborne L. C, 8 Oh.at p . 469. (k) 1 App. Oa. 662. 
 
 (M) Notes to Mellor v. Spateman, 1 to) Frits v. Sobson (1880), 14 Oh. D. 
 
 Wma. Sauna. 626, 542, 49 L. J. Ch. 321, mpra, p. 356. 
 
 (.v) Barrop v. Hirst (1868), L. E. 4 Ex. (s) Thorpe v. Brumfitt (1873), 8 Ch. 
 
 43, 3S L. J. Ex. 1. 650, 656, per James L. J. 
 
OBSTRUCTION OF LIGHTS. 509 
 
 closeness and height of buildings in towns, is the obstruc- 
 tion of light: often the phrase " light and air " is used, 
 but the addition 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 {a). 
 
 It seems proper (though at the risk of digressing from 
 the law of Torts into the law of Easements) to state here 
 the rules on this head as settled by the decisions of the last 
 
 twenty years or thereabouts. 
 
 « 
 
 Nature of the right. The right to light, to begin with, 
 is not a natural right incident to the ownership of windows, 
 but an easement to which title must be shown by grant (6), 
 
 (o) City of London Brewery Co. T. (6) Notwithstanding the donbts ex- 
 
 Tenntmt (1873), 9 Ch. at p. 221; Webb v. pressed by Littledale J. in Moore v. 
 
 £ird(1862),Bx. Ch. 13 C. B. N. S. 841,31 Sawson (1824), 3 B. & Cat p. 340:- see per 
 
 L. J. C. F. 335 ; Bryant v. Lefever (1879), 4 liOrd Selborne, Daltcm v. Angus (1881), 6 
 
 C. P. Div. 172, espeoially per Cotton L. J. App. Ca. at p. 704, and Lord Blackburn, 
 
 at p. 180, 48 L. J. Ch. 380; Harris v. Ve ib. 823, and the judgments and opinions 
 
 Pinna (1886), 33 Oh. Div. 238, per Ohitty in that case passim as to the peculiar 
 
 J. at p. 250, and Cotton L. J. at p. 2S9. character of negative easements. 
 
 Obstruction ol lights. Ordinarily darkening another's windows " or 
 depriving liim of a prospect, by building on one's own land, invades no 
 legal right." Pickard v. Collins, 23 Barb. 458. But otherwise, when 
 done for the purpose of gratifying spite and malice. Burke v. Smith, 69 
 Mich. 389; 37 N. W. Eep. 838. See Kirkwood v. Finegan (Mich.), 55 
 N. W. Eep. 457. 
 
 In the United States the easement of light cannot be acquired by pre- 
 scription. In Tunstall v. Christian (80 Va. 4), the court said: "But 
 the English doctrine of ' ancient lights ' has been repudiated by the 
 American courts as irreconcilable with principle, and not adapted to the 
 rapid physical development of the country, especially in cities and 
 towns." See Parkers. Foote, 19 "Wend. 309; Ward v. Neal, 37 Ala. 500; 
 Craig V. Dee, 14 Gray, 583; Cherry v. Stein, II Md. 1; Myers v. Gemmel, 
 10 Barb. 537; Haverstick v. Sipe, 33 Pa. St. 368; Hubbard v. Town, 33 
 Vt. 295 ; Morrison v. Marquardt, 4 la. 35 ; Mullen v. Strieker, 19 Ohio St. 
 135; Powell t7. Sims, 5 W. Va. 1; Turner v. Thompson, 49 Ga. 19; Stein 
 V. Hauck, 66 la. 65; Keats ». Hugo, 115 Mass. 207; Keiper ». Klein, 61 
 Ind. 316; Lapere ». Lucky, 23 Kan. 534. Coreira, Eay «. Sweelney, 14 
 Burk, 1; Robinson v. Maxwell, 2 N. J. Eq. 57; McCready v. Thompson, 
 Dudley Eq. 80; Pond v. Metropolitan E. R. Co., 42 Hun, 567; Mahan v. 
 Brown, 13 Wend. 263. 
 
510 NUISANCE. 
 
 express or implied, or by prescription at common law, or 
 under the Prescription Act. The Prescription Act has not 
 altered the nature or extent of the right, but has only 
 provided a new mode of acquiring and claiming it (c), 
 without taking away any mode which existed at common 
 law {d). 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 (e). 
 
 Any substantial diminution is a wrong. Assuming the 
 right to be established, there is a wrongful disturbance if 
 the building in respect of which it exists is so far deprived 
 of access of light as to render it materially less fit for com- 
 fortable or beneficial use or enjoyment in its existing con- 
 dition; if a dwelling-house, for ordinary habitation; if a 
 warehouse or shop, for the conduct of business {f). 
 
 This does not mean that an obstruction is not wrongful 
 if it leaves sufficient light for the conduct of the business 
 or occupation carried on in the dominant tenement for the 
 time being. The question is not what is the least amount 
 of light the plaintifi" can live or work with, but whether the 
 light, as his tenement was entitled to it and enjoyed it, has 
 been substantially diminished. Even if a 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 {g). 
 
 (0 ^e?*v. Peorson (1871), 6 Ch. at pp. (,g) Tales v. JacJe (1866), 1 Oh. 295. 
 
 811, 813, of. 9 Ch. 2)9. ZanfrancM v. Mackensie, i Eq. 421, 36 L. 
 
 (d) Aynslej/Y. GZiwej- (1875),10Oh.283, J. Ch. 518 (1867, before Malms V.-C.) 
 a L. J. Ch. 523. since the Prescription seems to have been decided, on the 
 Act, however, the formerly accastomcd whole, on the ground that there was 
 method of claiming under the Action of not any material diminution. So far as 
 a lost grant appears to be obsolete. it suggests that there is a distinction in 
 
 (e) See Potta v. Smith (1868) , 6 Eq. 311, law between ordinary and extraordinary 
 318, 38 L. J. Ch. 58. amounts of light, or that a plaintiff 
 
 (,f)Kel7c V. Pearson (1871), 6 Ch. 809, - claiming what is called an extraordinary 
 
 811; dty of London Bremery Co. v. Ten- amount ought to show that the defend- 
 
 nant (1873), 9 Ch. at p. 216, 43 L. J. Ch. ant had notice of the nature of his bnsi- 
 
 457. ness, it cannot be accepted as authority 
 
OBSTRUCTION OF LIGHTS. 511 
 
 Supposed, rule or presumption as to angle of 4S°. For 
 
 some years it was supposed, by analogy to a regulation in 
 one of the Metropolitan Local Management Acts as to the 
 proportion between the height of new buildings and the 
 width of streets (/^), 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 plaintiff. Buf it has been conclusively declared by 
 the Court of Appeal that there is no such rule (i). Every 
 case must be dealt with on its own facts. The statutory 
 regulation is framed on considerations of general public 
 convenience, irrespective of private titles. Where an in- 
 dividual is entitled to more light than the statute would 
 secure for him, there is no warrant in the statute, or in 
 anything that can be thence inferred, for depriving him of it. 
 
 Enlargement or alteration of lights. An existing right 
 to light is not lost by enlarging, rebuilding, or altering (_/), 
 the windows for which access of light is claimed. So long 
 as the ancient lights, or a substantial part thereof (A), re- 
 main substantially capable of continuous enjoyment (I), so 
 
 (ft) 25 & 26 Vict. 0. 102, o. 80. place: Scott v. Pape (1886), 31 Ch. Div 
 
 (i) Parker v. Mrst Avenue Hotel Co. 554, 55 L. J. Ch. 426 ; National Provimcial 
 
 (1883) , 24 Ch. Div. 282 ; Ecclesiastical Com- Plate Glass Insarcmce Co. v. Prudential 
 
 missioners v. Mno (1880), 14 Ch. DiT. 213, Assmance Co. (1877), 6 Oh. D. 757, 46 L. 
 
 49 L. J. Oh. 529. J. Ch. 871. Bnt there must at all events 
 
 (j) Taplimg v. Janes (1865), 11 H. L. 0. be a definite mode of access; Harris^. 
 
 290, 34 L. J. 0. P. 342 ; Aynsley v. Glover Ve Pinna (1886), 33 Oh. Div. 238, 56 L. J. 
 
 (1874-5), 18 Eq. 544, 43 L. J. Oh. 777, 10 Oh. Oh. 344. 
 
 283, 44 L. J. Ch. 523 ; Ecclesiastical Commis- (T) The alteration or rebuilding mnst 
 
 sioners v. Kino, 14 Oh. Div. 213 ; Green- be continnons enough to show that the 
 
 wood V. Homsey (1886), 33 Ch. D. 471, 55 right is not abandoned.; see Moore v. 
 
 L. J. Ch. 917. Bawson (1824), 3 B. & 0. 322. All the 
 
 (Je) Newson v. Pender (1884), 27 Oh. local clrcamstances will be considered ; 
 
 Div. 43, 61. It is not necessary that the BwllersY. Dickinson ilS9^),WGii. D. 155, 
 
 "stmctural Identity" of the old win- 54 L. J. Oh, 776. There must be some 
 
 dows should be preserved; the right Is specific idenllflcMion of the old light 
 
 to light as measured by the ancient as coinnident with the new: Pendarvea 
 
 apertures, but not merely as incident to v. Monro, '92, 1 Oh. 611. 
 certain defined apertures in a certain 
 
512 NUISANCE. 
 
 long the existing right continues and is protected by the 
 same remedies (m). And an existing right to light is not 
 lost by interruption which is not continuous in time and 
 quantity, but temporary and of fluctuating amount (n). 
 
 It makes no dijBEerence that the owner of a servient tene- 
 ment may, by the situation and arrangement of the build- 
 ings, be unable to prevent 'a right being acquired in respect 
 of the new light otherwise than by obstructing the old light 
 also (o). For there is no such thing as a specific right to 
 obstruct new lights. A man may build on his own land, 
 and he may build so as to darken any light which is not 
 ancient (as on the other hand it is undoubted law that his 
 neighbor 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. 
 
 ** Nnisance ' ' to market op ferry. Disturbing the private 
 franchise of a market or a ferry is commonly reckoned a 
 species of nuisance in our books (p). But this classifica- 
 tion seems rather to depend on accidents of procedure than 
 on any substantial resemblance between interference with 
 peculiar rights of this kind and such injuries to the enjoy- 
 ment of common rights of property as we have been con- 
 sidering. 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 in which it 
 can be violated at all. If disturbing a market is a nuisance, 
 an infringement of copyright must be a nuisance, too, 
 ^unless the term is to be conventionally restricted to the 
 violation of rights not depending on any statute. 
 
 Kemedies for nnisance. The remedies for nuisance are 
 threefold: abatement, damages, and injunction: of which 
 
 (m) Staight v. Burn <1869), 5 Ch. (o) Tapling v. Jones (1865), U H. L. G. 
 
 per Giffard L. J. at p. 167. 290, 34 L. J. C. P. 342. 
 
 (n) Preslund v. BijigUam (1889), 41 Oh. (p) Blackst. Comm. 111. 218. 
 
 Div. 268. 
 
ABATBMENT. 513 
 
 the first is by the act of the party aggrieved, the others by 
 process of law. Pamages are recoverable in all cases 
 where nuisance is proved, but in many cases are not an 
 adequate remedy. The more stringent remedy by injunc- 
 tion is available in such cases, and often takes the place of 
 abatement where that would be too hazardous a proceeding. 
 
 Abatement. The abatement of obstructions to high- 
 ways, and the like, is still of importance as a means of as- 
 serting public rights.' Private rights which tend to the 
 benefit of the public, or a considerable class of persons, 
 such as rights of common, havie within recent times been 
 successfully maintained in the same manner, though not 
 without the addition of judicial proceedings (q). It is 
 decided that not only walls, fences, and siich like encroach- 
 ments which obstruct rights of common may be removed, 
 but a house wrongfully built on a common may be pulled 
 down by a commoner if it is not removed after notice (r) 
 within a reasoiiable time (s). 
 
 If another man's tree overhangs my land, I may lawfully 
 cut the overhanging branches (t) ; and in these cases where 
 
 ^g) Smith T. Ewrl Brotmlow (1869), 9 doubt. The case of a man pnlling down 
 
 Eq. 241 (the case of Berkhaznstead Com- bnildings wrougf ally erected on his own 
 
 mon); Williams on Eights of Common, land is different; ib.; Bwrling v. Bead 
 
 135. (1850), 11 Q. B. 904, 19 L. J. Q. B. 291. 
 
 (r) Pnlling down the honse withont («) Davies v. WUliaTns (1851), 16 Q. B. 
 
 notice while there are people in it is a 546, 20 L. J. Q. B. 330. 
 
 trespass: Per'/T/ y. MtoTume (,1845), 8 Q. (t) Norris r. Baker, IBxtUe'aUep.SdS, 
 
 B. 757, 15 L. J. Q. B. 239; Jones v. Jones per Oroke; Lonsdale v. Nelson, 2 B. & C. 
 
 (1362). 1 H. & 0. 1, 31 L. J. Ex. 506; fol- 311, per Best, 
 lowing Perry v. Fitzhowe with some 
 
 Abatement. The term " abatement " as applied to nuisance is 
 defined, as: "Tlie removal, prostration, or destruction of that which 
 causes a nuisance, whether by breaking or pnlling it down, or other- 
 wise removing, disintegrating or efEacing it. The remedy which the law 
 allows a party injured by a nuisance of destroying or removing it by his 
 own act, so as be commits no riot in doing it, nor occasions (in the case 
 of a private nuisance) any damage beyond what the removal of the incon- 
 venience necessarily required." Black's Law Die, p. 5. See this subject 
 further, post, p. 615. As to overhanging branches, see, ante, p. 492. 
 
 33 
 
514 NUISANCE. 
 
 the nuisance is in the nature of a trespass, and can be 
 abated without entering on another's land, it does not ap- 
 pear that the wrong-doer is 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 (w), 
 j 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 wrong-doer. In the case of abating nui- 
 sances to a right of common, notice is not strictly necessary 
 unless the encroachment is a dwelling-house in actual occu- 
 pation ; but if there is a question of right to be tried, the 
 more reasonable course is to give notice (sc). The same 
 
 (») This has always been understood (a;) Per James L. J., CommissUmers 
 
 to be tbe law, and seems to follow a of Sewers T. Qlaase (1S72), 7 Cb. at p. 464. 
 fortion from the doctrine of Perry v. 
 Mtshowe, n (r) , last page. 
 
 Notice to -wTong-doer. Ordinarily a person responsible for the exist- 
 ence of a nuisance is entitled to a reasonable notice to remove and abate 
 It before an action can be maintained against him therefor. But it seems 
 that where the acts constituting the nuisance are in themselves unlawful, 
 or where there is danger of irreparable injury, no notice is required. 
 United States Illuminating Co. ». Grant, 65 Hun, 235; 7 N. T. S. Eep. 788; 
 Dunsbach o. Holllster, 2 N. Y. S. Rep. 94; McGowan v. Mo. Pae. Ry. Co., 
 23 Mo. App. 203; Groff v. Akenbrandt, 19 111. App. 148; Verder v. Ells- 
 worth, 59 Vt.354; 10 At. Eep. 89; George c. The Wabash Western Ry. Co., 
 40 Mo. App. 444; Harvey v. Dewoody, 18 Ark. 252; Swett v. Sprague, 55 
 Me. 190 ; Haggerty v. Thompson, 45 Hun, 398. Thus, in Matthews v. Mo. 
 Pae. Ey. Co. (26 Mo. App. 75), it was held, that he who continues a 
 nuisance which obstructs a public highway is responsible for injuries 
 resulting from such obstruction, withont proof of notice to him of its 
 existence. 
 
 The above general rule is subject, however, to the qualification as 
 announced by the court in the case of Grlgsby v. Clear Lake Water Co. 
 (40 Cal. 407), as follows: "The rule seems too well established that a 
 party who Is not the original creator of a nuisance is entitled to notice 
 that It is a nuisance, and a request must be made, that it may be abated 
 before an action will lie for that purpose, unless it appear that he had 
 knowledge of the hurtful character o£ the erection." See West v. 
 Louisville, C. & L. R. Co., 8 Bush, 408. 
 
OMISSION. 515 
 
 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 residue of the com- 
 mon, but they" are entitled to consider the whole of that 
 fence so erected upon the common a nuisance, and to 
 remove it accordingly " (y). 
 
 IVnlsauces of omission. It is doubtful whether there is 
 any private right to abate a nuisance consisting only in 
 omission except where the person aggrieved can do it with- 
 
 (2/) Bayley J. in Arlett v. Ellis (1827), pi. 18. There Is a diversity where the 
 7 B. & 0. 346, 362, and earlier authorities fence preventing access to the common 
 there cited. The first is 15 Hen. VII. 10, is not on the common itself : ibid, 
 
 Ntiisances of omission. Notice. To maintain an action against one 
 responsible for a nuisance of omission it is essential ttiat he sliould have 
 been given reasonable notice to remove and abate the nuisance. i 
 
 Abatement. "The true theory of abatement of nuisance is that an 
 indiw^idual citizen may abate a private nuisance injurious to him when he 
 could bring an action; and, also when a common nuisance obstructs his 
 individual right, he may remove it to enable him to enjoy that right, and 
 he cannot be called In question for so doing. As in the case of obstruc- 
 tion across a public highway and an unauthorized bridge over a naviga- 
 ble water-course, if he has occasion to use it, he may remote it, by way . 
 of abatement. But this would not justify strangers being inhabitants of 4 
 other parts of the commonwealth, having no occasion to use it, to do the 
 same. Some of the earlier cases, perhaps, in laying down the general 
 proposition that private subjects may abate a common nuisance, do not 
 expressly mark this distinction, but we think upon authority of modern 
 cases, where the distinctions are more accurately made, and upon prin- 
 ciple, this is the true rule of law." Brown v. Perkins, 12 Gray, 89; 
 Meeker t>. Van Eenselaer, 15 Wend. 397; Wood on Nuisances, 2nd Ed., 
 §§ 735, etseq.; Day v. Day, 4 Md. 262; Renwick v. Morris, 7 Hill, 575; 
 Brown v. DeGroff, 60 N. J. L. 409; 14 At. Eep. 219; Whetmore v. Tracy, 
 14 Wend. 250; 28 Am. Dec. 559; Clark v. Lake St. Clair, etc. Ice Com- 
 
516 NUISANCE. 
 
 out 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 injute, and the in- 
 jured 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 bf nuisances from 
 omission, except that of cutting the branches of trees which 
 overhang a public road, or the private property of the per- 
 son who cuts them. . . . The security of lives and 
 
 pany, 24 Mieh. 508; Gray v. Ayres, 7 Dana, 375; School District v. Neil, 
 36 Kan. 617; City of McGregor c. Boyle, 34 Iowa 268; Welch ». Stowell, 2 
 Dougl. 332; State v. Keran, 5 B. I. 497; Croslaad «. Pottsville Borough, 
 126 Pa. St. 532; 24 W. N. C. 321 ; Hickey v. Michigan C- E. Co. CMidi.), 
 56N.W. Eep. 989. ' 
 
 Thus, applying the principle to the case of ferocious dogs, " If 
 a dog is so ferocious that he will bite men m the street and is 
 at large he is a nuisance, and may be killed by any one." Dunl^ v. 
 Snyder, 17 Barb. 561. See Brown v. Carpenter, 26 Ya. 638 ; Stump v. 
 McNalry, SHumph. 363; Oliver u. Lof tin, 4 Ala. 240. But see Harrower 
 ». Eitson, 37 Barb. 301; Griffith v. McCuUum, 46 Id. 561; Peckham e. 
 Henderson, 27 Id. 207i 
 
 One who unc^ertakes to abate a private muisance without recourse to 
 law acts at his peril, and if his conduct should afterwards be adjudged un- 
 warranted or if he go beyond what is necessary to protect his right he is 
 liable for his iUegal conduct in the first instance, or for the excess of 
 abatement in the second instance. " A party by erecting a nuisance does 
 not put himself, or his property, beyond the protection of the law. If an 
 individual or member of a community can with reasonable care, notvfith- 
 stauding the- act con^lained of, enjoy the right or franchise belonging to 
 him he is not at liberty to destroy or interfere with the property of the 
 wrong-doer." Harrower v. Eitsoo, 37 Barb. 310. Thus, in Brightman v. 
 Bristol (65 Me. 443) , the court said : ' ' When it is the use of tiie build- 
 ing which constitutes a nuisance, the abatement consists in putting a 
 stop to such. The law allows its officers, in execution of its sentence, 
 only to do what is necessary to abate the nuisance, and nothing more; 
 a fortiori it wUl not sanction destruction without limit by individuals. 
 It would be absurd to hold that a manufactory lawful in itself, but 
 producing ' offensive smells ' is at the mercy of every passer-by whose ol- 
 factory nerves are disagreeably afifected by its necessary processes." See 
 Ely V. Supervisors of Niagara County, 4 Barb. 659 ; Earp ». I«e, 71 Ind. 193. 
 
OLD WEITS. 517 
 
 property may sometimes require so speedy a remedy as not 
 to allow time to call on the person on whose property the 
 mischief has arisen to remedy it. In such cases an indi- 
 vidual would be justified in abating a nuisance from omis- 
 sion 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 " (»). 
 
 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 iu justification. Thus 
 it is lawful to remove a gate or barrier which obstructs 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 lawr 
 ful and in part unlawful, a" party abating that which is un- 
 lawful cannot justify interference with the rest. He must 
 distinguish them at bis peril (a). But this does not mean 
 that the wrong-doer is always entitled to have a nuisance 
 abated in the manner most convenient to himself. The 
 convenience 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 " (6). Practically the remedy of abatement 
 is DOW in use only as to rights of common ( as we have 
 already hinted), rights of way, and sometimes rights of 
 water; and even in those cases it ought never to be used 
 without good advisement. 
 
 Old writs. Formerly there were processes of judicial 
 abatement available for freeholders under the vs^rit Quod 
 
 \ 
 
 («) Best J. In Earl of ZonsdaleM. Set- (5) Roteris v. Rose (1865), Ex. Oh. L. 
 
 ««>B{I823),2B. &C. atp. 311. E. lEx. 82, 89. ' 
 
 (a) Oreemlade v. BalUday (1830), 6 
 Bing. 379. 
 
518 ' NUISANCE. 
 
 permittat and the assize of nuisance (c). But these were 
 cumbrous and tedious remedies, and, like the other forms 
 of real action, were obsolete in practice long before they 
 were finally abolished (d), the remedies by action on the 
 case at law and by injunption in the Court of Chancery 
 having superseded them. 
 
 Damages. There is not much to be said of the remedy 
 in damages as applicable to this particular class of wrongs. 
 Persistence in a proved nuisance is stated to be a just cause 
 
 (c) F. N. B. 124 H., 1S3 I. ; Baien's ca. 5 Co. Eep. 100 6, in ed. Thomas & Fraser, 
 9 Co. Eep. 65 a, Blackst. Comm. iil. 221. 1826. 
 
 (d) See note (A) to Pewuddocl^s ca.. 
 
 Old writs. The common law remedies were: "(1) Quod permittat 
 prosternere. This was in the nature of a writ of right, therefore subject 
 to great delays. It commanded the defendant to permit the plaintiff to 
 abate the nuisance, or show cause against the same ; and plaintiff could 
 have a judgment to abate the nuisance and for damages, against the de- 
 fendant. (2) An assize of nuisance, in which the sheriff was commanded 
 to summon a jury to view the preinises, and, if they found for the 
 plaintiff, he had judgment to have the nuisance abated, and for dam- 
 ages." Powell V. Bentley & Gerwig Eurniture Co., 34 W. Va. 803; 12 S. 
 E. Eep. 1086. Both of these writs have been abolished In England by 
 statute and in the United States they are obsolete. Hutchlns v. Smith, 
 63 Barb. 251; Clark v. Peckham, 9 E. I. 455; Kintz v. McNeal, 1 Denio, 
 430; Livezly v. Gorgas, 1 Binn. 251; Barnet v. Ihrie, 17 Serg, & E. 174. 
 
 Damages. One injured by a nuisance may recover of another respon- 
 sible therefor to the amount of actual damages sustained. Where the 
 plaintiff proves that a legal right of his has been infringed by the 
 nuisance he is entitled to a recovery of nominal damages even though he 
 fail to prove actual damage; or even though the property has been 
 actually benefited by the nuisance. Eipka v. Sergeant, 7 Watts & S. 9; 
 42 Am. Dec. 214; Pastorius v. Fisher, 1 Bawle,27; Frank v. New Orleans 
 etc. E. Co., 20 La. An. 26; Tootle v. Clifton, 22 Ohio St. 247; Hatch ». 
 Dwight, 17 Mass. 289; 9 Am. Dec. 145; McKnight v. Eatchliff, 44 Pa. St. 
 156; Chipman o. Hibberd, 6 Cal. 162; Thayer o. Brooks, 17 Ohio, 489; 49 
 Am. Dec. 474; Luther v. Winnisimmet, 9 Cnsh. 171; Taber v. Hutson, 5 
 Ind. 322; 61 Am. Dec. 96; Howes v. Ashfleld, 99 Mass. 540; Stowell ». 
 Lincoln, 11 Gray, 434; Cooper v. Eandall, 55 111. 23; Marcy v. Fries, 18 
 Kan. 345; Kimel o. Kimel, 4 Jones L. 121; Wesson ij.Washburg Iron Co., 
 13 Allen, 96; 90 Am. Dec. 181. 
 
 The rules that prevail in general in the awarding of damages for other 
 
DAMAGES. 519 
 
 for giving exemplary damages (e). There is a place for 
 nominal damages in cases where the nuisance consists 
 merely in the obstruction of a right of legal enjoyment, 
 
 (e) Blaokst. Comm. iii. 220. 
 
 torts apply to nuisances; therefore, exemplary damages are not recover- 
 able In the absence of proof of malice or wanton recklessness; but 
 malice may be inferred from the circumstances, as where the nuisance is 
 continued after a yerdict or judgment against it. Morford v. Wood- 
 worth, 7 Ind. 83; McFaddM v. Eansch, 119 Pa. St. 507; Silver v. Creek 
 Navigation Co. v. Mangum, 84 Miss. 682; Parrott v. Housatonic K. Co., 
 47 Cown. 575; Hayes v. Askew, 7 Jones L. 272; Pickett v. Crook, 20 Wis. 
 358; Windham v. Bhame, 11 Rich. L. 283; 73 Am. Dec. 116; Jefcoat i;. 
 Knotts, Id. 649; Long v. Trexler (Pa.) 8 At. Bep. 620; New Orleans etc. 
 B. Co. V. Statham, 42 Miss. 607; 97 Am. Dec. 418; Keay v. New Orleans 
 Canal Co., 7 La. An. 259; Dorsey v. Manlovd, 14 Cal. 553. 
 
 " The authorities sustain the proposition that in actions to recover 
 damages resulting from a permanent or continuing nuisance, and the 
 damages are necessarily continuous, the recovery can be had for such 
 damages only as had been sustained prior to bringing the suit. Wood 
 Nuis., §§ 869, 870, 873; Field Dam., §§748, 749; Pinney v. Berry, 61 Mo. 
 359. But, when the action is brought not only to recover damages, but 
 to abate the nuisance, as in this case, we think it more in accord with 
 the long established policy of our laws to prevent, as far as possible, a 
 multiplicity of suits, to hold that the recovery may be had for all damages 
 sustained down to the trial, rather than put the plaintiff to another 
 action, after the nuisance has been abated, to j-ecover for damages sus- 
 tained between the institution of the s-uifc and the time of the trial." 
 Comminge v. Stevenson, 76 Tex. 645; IB S. W. Bep. 558, See Bizer v. 
 The Ottumwa Hydraulic Power Co., 70 lH. 147, citing Powers t). City of 
 Council Bluffs, 45 Id. 652; Van Orsdal v. Bailroad Co., 56 Id. 470. And 
 see lUinois C. B. Co. v. Graball, 60 111. 241, 248; Einley v. Hershey, 41 
 Iowa. 389; Duryea». New York, 26 Hun, 120; Troy v. Cheshire B. Co., 23 
 N. H. 83; 56 Am. Dec. 177; Hopkins v. Western Pac. B. Co., 50 Cal. 190; 
 Shaw V. Etterbridge, 3 Jones L. 300; Hargreaves v. Kimberly, 26 W. Va. 
 787; 63 Am. Bep. 121 ; Barrick v. SchiflEerdicker, 1 N. Y. S. Bep. 21. 
 
 In fixing the amount of d9.mages the recovery should, ordinarily, be 
 limited to the actual damages sustained. For permanent injuries to 
 realty, the measure of damages is the difference between what the 
 property would have sold for before and after the Injury . Seely v. 
 Alden, 61 Pa. St. 302^ McGuire v. Grant, 26 N. J. L. 356; 64 Am. Dec. 
 49; Ferguson v. Firmenich Mfg. Co., 77 la. 676 ; Schuylkill Nav. Co. u. 
 Farr, 4 Watts & S. 362. But where the injury is only temporary, affect- 
 ing the enjoyment and occupancy of realty, the measure of damages is 
 
520 NUISANCE. 
 
 such as a right of common, which does not cause any- 
 specific harm or loss to the plaintiff. At common law 
 damages could not be awarded for any injury received 
 from the continuance of a nuisance since the commence- 
 ment 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 contin- 
 uing cause of action are assessed down to the date of the 
 assessment (/). 
 
 Injunctions. The most efficient and flexible remedy is 
 that of injunction. Under this form the Court can prevent 
 that from being done which, if done, would cause a nui- 
 
 (/) Bnles of tbe Snpreme Court, 1883, snits for an Injanotion; and the reanlt 
 Ord. XXXVI. r. 68 (no. 4S2). The like may be to diepense with statntory re- 
 power had already been exercised by qnirements as to notice of action, etc., 
 the Conrt (see Fritz v. Hobson (1880), 14 which wonld not have applied to snch 
 Oh. D. 642, 657), when damages were eaiisiChapimm\.AucJclanclUnion(.\SSS), 
 ^ven In addition to or in substitution lor ' 23 Q. B. Div. 294, 299, 300, 68 L. J. Q. B. 
 an Injunction under Lord Cairns' Act, 21 604. The Act did not confer any power 
 & 22 Vict. 0. 27. This Act is now repealed to give damages where no actionable 
 by the Statute Law Revision and Civil wrong had been done, e. g., in a case of 
 Procedure Act, 1883, 46 & 47 Vict. e. 49, merely threatened injury: Dreyfus v. 
 bntthe power conferred by It still exists, Peravian Gutmo Co. (1889), 43 Ch. DiVi 
 and is applicable in such actions as 316, 333, 342. 
 formerly would have been Chancery 
 
 generally the loss of rents or the depreciation in rental value. Givens v. 
 Van Studdiford, 4 Mo. App. 503; Chipman v. Palmer, 9 Hun, 617; 
 Chicago V. Huenerbein, 85 111. 694; 28 Am. Rep. 626; Colrickc. Swin- 
 burne, 105 N. Y. 603; Crawford v. Parsons, 63 N. H. 438; Michel ». 
 Monroe Co., 39 Hun, 47; Eandolf v. Town of Bloomfleld, 77 la. 50; 
 Murray v. Archer, 5 N. Y. S. Rep. 326; Carli o. Union Depot, etc. Co., 
 32 Minn. 101 ; South Bend «. Paxon, 67 Ind. 228. 
 
 Injunctions. V^here there is impending danger of an irreparable in- 
 jury or extraordinary continuing annoyance to the complainant, a conrt 
 of equity will generally grant a preliminary injunction restraining the 
 nuisance. 
 
 This protection is extended to the complainant by the court, at its dis- 
 cretion, for three reasons : " First, that he has no adequate remedy at 
 law; second, to prevent a multiplicity of actions; tfeird, to prevent irre- 
 parable injury by the continuance of the nuisance itself." Enox v. 
 Mayor etc. of New York, 55 Barb. 407. 
 
 In the case of Dittman v. Repp, (50 Md. 517), the court in substance 
 
INJUNCTIONS. 521 
 
 sance; it can command the destruction of buildings {g) or 
 the cessation of works (^) which violate a neighbour's 
 rights ; where there is a disputed question of right between 
 
 (ff) E. g, Kelk v. Pearson (1871), 6 Cli. like words; see Lingwood \. Stovmuvrliet 
 
 809. Co. (186B), 1 Eq. 77, 336, and other pre- 
 
 (ft) The form ol order does not go to cedents In Seton, Pt. II. oh. 6, s. 5 ; cp. 
 
 prohibit the carrying on of such and iiTemirj^rv. fifeiop (1886),11 App. Ca.(So.) 
 
 such operations absolutely, but " so as 686. 
 to cause a nuisance to the plaintiff," or 
 
 said, that the criterion for deteimining whether a court of equity will 
 Interfere and restrain by an injnnction an existing and tlireatening nui- 
 sance to a party's dwelling is, whether the nuisance complained of will 
 or does produce such a condition of things as, in the judgment of 
 reasonable men, is naturally productive of actual physical discomfort to 
 persons of ordinary sensibilities, and of ordinary tastes and habits, and 
 as, in view of the circumstances of the case, is unreasonable and in dero- 
 gation of the rights of the complainant. In another case it is said by 
 the court: " A private person or a corporation has no right to an injunc- 
 tion merely to restrain another from committing some apprehended 
 violation of ,law. Nor has such private person or corporation any right 
 to an injunction to restrain another from doing any particular act unless 
 performance of the act would result to the injury of the party seeking 
 the relief; and even in order to entitle the party seeking the relief to the 
 relief sought, the contemplated injury must be substantial and not 
 merely nominal, and must be special and particular as to the party seek- 
 ing the relief, and different in kind from that which will affect the public 
 in general." Water Supply Co. e. City of Potwin, 43 Kan. 414 ; 23 P. Rep. 
 578. See Pflngst v. Senn (Ky.), 23 S. W. Kep. 358; Powell v. Macon & 
 I. S. R. Co. (Ga.), 17 S. E. Rep. 1027. 
 
 " The foundation of this jurisdiction of equity, in assuming to restrain 
 nuisances, rests in the imperative necessity of preventing irreparable 
 injury and a multiplicity of suits at law. * * * It is the exercise of 
 an extraordinary power, which, as was long ago said by this court, 
 should be 'cautiously and sparingly exercised.' * * * And the injunc- 
 tion, therefore, of a private nuisance, will generally be granted only 
 where there is a strong and mischievous case of pressing necessity and 
 not because of a trifling discomfort or inconvenience suffered by the 
 party complaining. * * * The rule has long been recognized as quite 
 different where the thing sought to be prohibited is per se a nuisance, and 
 where it is not unavoidably noxious in itself, but may prove so according 
 to circumstances, or otherwise. In the first class of cases an injunc- 
 tion wUl ordinarily be granted without waiting for the result of a trial at 
 law. In the second class the court will generally refuse to interfere until 
 the matter has been tried at law." Rouse v. Martin, 75 Ala. 510; 61 
 
522 NUISANCE. 
 
 the parties, it can suspend the operations complained of 
 until that question is finally decided (i); and its orders 
 may be either absolute or conditional upon the fulfilment 
 
 » 
 
 (i) Even a mandatory ln]iinotion may complained of, he was ordered to pnll it 
 
 be granted, in an extreme case, at an down without regard to the general 
 
 interlocutory stage : where, after notice merits : Daniel V. Fergvton, '91, 2 Ch. 27, 
 
 of motion and before the hearing, the C. A. 
 defendant had rapidly ran up the wall 
 
 Am. Kep. 463, citing State v. Mayor etc. of Mobile, 5 Port. 279 ; 'Bay v. 
 Lynes, 10 Ala. 63; St. James Church v. Arrington, 36 Ala. 546; Powell v. 
 Bentley & Gerwig Furniture Co., 34 "W. Va. 804; 12 S. E. Rep. 1087; Car- 
 lisle V. Cooper, 21 N. J. Eq. 579;, Commonwealth v. Croushore, 145 Pa. 
 St. 162 ; 22 At. Eep. 807; Vorce v. Page, 28 Neb. 294 ; 44 N. W. Rep. 452; 
 Indianapolis Water Co. v. American Strawboard Co., 53 Fed, Rep. 970; 
 Hennessey v. Carmony fN. J. Eq.), 25 At. Rep. 374; Smith w. McDowell 
 (111.), 35 N. E. Eep. 141 ; City of Grand Rapids v. Weiden (Mich.), 66 N. 
 W. Rep. 233. 
 
 In cases where invasions of a party's legal rights are of frequent 
 occurrence, the right to an injunction is said to be almost a matter of 
 positive right. 
 
 "And courts of equity wiU more readily interpose in such instances 
 ■where the damages recovered are merely nominal, and, therefore, inade- 
 quate to prevent a repetition of the injury." Paddock o. Somes, 102 
 Mo. 238 ; 14 N. W. Rep. 746. See Gardner v. Stroever, 89 Cal. 26 ; 26 Pac. 
 Eep. 618; Learned v. Castle, 78 Cal. 454; 21 Pac. Rep. 11 ; Earrell v. Cook, 
 16 Neb. 483 ; 49 Am. Rep. 721 ; New York etc. R. Co, v. City of Roches- 
 ter, 127 N. Y. 591; 28 N. E. Eep. 416; Ballentine o. Webb, 48 Mich. 
 38; 47 N. W. Eep. 485; Penrose v. Nixon, 140 Pa. St. 45; 21 At. Eep. 
 364; Straus v. Barnett, 140. Pa. St. Ill; 71 At, Eep. 253; Newark 
 Aqueduct Board v. City of Passaic, 46 N. J. Eq. 552; 20 At. Rep. 54; 
 22 At. Rep. 55; Born v. Loflin & Eand Powder Co., 84 Ga. 217; 10 S. 
 E. Eep. 738; Eogers v. Hatfield, 14 Daly, 339; Hacke's App., 101 Pa. St. 
 249; Morris & E. R. Co. •». Prudden, 20 N. J. Eq. 530. 
 
 The injunction should be confined in its application to the specific injury ; 
 thus in the case of McMenomy v. Band (87 Cal. 134 ; 26 Pac. Rep. 795) it 
 was held, that where the Injurious effects complained of as resulting 
 from the running of a foundry and machinery may be prevented with- 
 out entirely abating or enjoining the works^ or the operations thereof, 
 only the cause of the specific injurious effects proved should be enjoined, 
 leaving the defendant at liberty to operate his -works, if he can, and 
 elect to do so, in such manner as to remove the cause and prevent the 
 injury. 
 
 " Courts of equity -will not enjoin an act which woiild otherwise be 
 lawful but which is made unlawful by an ordinance or by-law of a city or 
 
INJUNCTIONS. 523 
 
 by either or both of the parties of such undertakings as 
 appear just in the particular case (i). 
 
 It is a matter of common learning and practice that an 
 injunction is not, like damages, a remedy (as it is said) 
 ex debito iustitim. Whether it shall be granted or not in a 
 given case is in the judicial discretion of the Court, now 
 guided by principles which have become pretty well 
 settled. In order to obtain an injunction it must be 
 shown that the injury complained of as present or impend- 
 ing is such as . by reason of its gravity^ or its permanent 
 character, or both, cannot be adequately compensated in 
 damages (_/). The injury must be either irreparable/ or 
 \c6ntinuous (^'). This remedy is therefore not appropriate 
 for damage which is in its nature temporary and inter- 
 mittent (?), or is accidental 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 creating a nuisance 
 is no ground for an injunction (o). " There must, if no 
 
 (i) Thus where the complaint was of followed hy A.-G. v. Camhridge Consmn- 
 
 special damage or danger from some- ers' Gas Co. (1868), 4 Ch. 71, 38 L. J. 
 
 thing alleged to be a public nnlsance, Ch. 91, 
 
 an interlocutory injunction has been (m) Coolee v. Forbes (1867), fi Eq. 166 
 
 granted on the terms of the plaintiff (escape of fumes from works where the 
 
 bringing an Indictment; Bephum v. precautions used were shown to be as a 
 
 Lordan (1865), 2 H. & M. 345, 332, 34 L. J. rule, sufficient). 
 
 Ch. 293. (n) Gaunt v. Finney (1872), 8 Ch. 8, 42 
 
 (j) CooTee v. Forbes, 5 Bq. 166, 173 (Page L. J. Oh. 122 (case of nuisance from 
 
 Wood V.-O. 1867) ; A.-G. v. Sheffield ^c. noise brote down, slight obstruction to 
 
 Co. (next note but one). ancient light held no ground for injunc- 
 
 (ft) Page Wood L. J. , 4 Ch. at p. 81. tion). 
 
 Q) A.-G.\. Sheffield Gas Consmner^ (o) See the cases reviewed by Pearson 
 
 Co. (1853), 3 D. M. G. 304, 22 L. J. Ch. 811 J., Fletcher v. Bealey (1835), 28 Oh. D. 
 
 (breaking np streets to lay gas pipes), 688, 64 L. J. Ch. 424. 
 
 town, unless the act is shown to be a nuisance per se." Warren v. 
 Cavanaugh, 33 Mo. App. 102; citing Phillips v. Allen, 41 Pa. St. 481; 
 Schuster v. Board of Health, 49 Barb. 451; Presidents. Moore, 34 Wis. 
 450; Smith v. Lockwocd, 13 Barb. 209; Village of St. John u. McFarlan, 
 33 Mich. 72. See Burwell v. Comm'rs, 93 N. C. 73; 63 Am. Rep. 454; 
 Babcock v. N. J. Stock Yard Co., 20 N. J. Bq. 296. 
 See Injunctions, ante, p. 178. 
 
524 NUISANCE. 
 
 actual damage is proved, be proof of immment danger, and 
 there must also be proof that the apprehended damage will, 
 if it comes, be very substantial " (p). But where a nui- 
 sance is shown to exist, all the probable consequences are 
 taken into account in determining whether the injury is 
 serious within the 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 EoUs has dismissed with 
 costs the bill of the plaintiff. 
 
 " The bill, in substance, sought by a mandatory injunc- 
 tion 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 deleterious vapours. 
 
 " The Master of the Rolls thought it right to lay down 
 
 what he conceived to be the principle of law applicable to 
 
 a case of this kind, which principle he found expressed in 
 
 the case of St. Helen's Smelting Company 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 Rolls derived from that case 
 
 this principle ; that in any case of this kind, where the 
 
 1 plaintiff was seeking to interfere with a great work carried 
 
 i 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 Rolls expressed it, 'visible' damage. 
 
 The term « visible ' was very much quarrelled with before 
 
 us, as not being accurate in point of law. It was stated 
 
 (p) 28 Ch. D. at p. 698. A pxemstnre (j) Ooldsmid v. Tunbridge Wells Im- 
 
 action of this kind may be dlsmiesed provement Commra. (1866), 1 Oh'. 349,364, 
 
 without prejudice to tatnie proceedings 35 L. J. Ch. 382. 
 
 in the event of actual and imminent (r) UH. L. 0. 642 (1865). 
 danger: ib. 704. 
 
INJUNCTIONS. 525 
 
 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 EoUs said that the damage must be visible, it appears 
 to me that he was quite right; and as I understand the 
 ~ proposition, it amounts to this, that, although 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'scientific evidence, such as the micro- 
 scope of the naturalist, or the tests of the chemist, for the 
 purpose of establishing 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. 
 
 " 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 illus- 
 trate 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 
 measurable and ascertainable; and if in the course of 
 nature the thing itself is so imperceptible, so slow, and so 
 gradualas to require a great lapse of time before the results 
 are made palpable to the ordinary senses of mankind, the 
 law disregards 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 afford 
 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 satis- 
 
526 NUISANCE. 
 
 faction, that by the reign of Queen Victoria both white and 
 red roses would have ceased to bloom in the Temple Gar- 
 dens. If some picturesque haven opens its arms to invite 
 the commerce of the world, it is not for this Court to forbid 
 the embrace, although the fruit of it should be the sights, 
 and sounds, and smells of a common seaport and shipbuild- - 
 ing 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- themselves on 
 a peninsula which extends far into the heart of the orna- 
 mental arid picturesque grounds of the plaintiflF. If, instead 
 of erecting coke ovens at that spot, they had been minded, 
 as apparently -some persons in the neighborhood 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 beershops, 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 judgment, have interfered. A man to whom Provi- 
 dence has given an estate, under which there are veins 
 of coal worth perhaps hundreds or thousands of pounds 
 per acre, must take the gift with the consequences and 
 concomitants of the mineral wealth in which he is a 
 participant " (s). 
 
 It is not a necessary condition of obtaining an injunction 
 to show matei'ial specific damage. Continuous interference 
 with a legal right in a manner capable of producing material 
 damage is enough {i). 
 
 Diflficulty or expense of abatement no answer. The 
 
 difficulty or expense which the party liable for a nuisance 
 
 («) James ^. J., Salvin v. North Bram- J. Oh . 107 ; op. Pennington v. Brinsop Hall 
 
 eepet^Coal Co. (1874), 9 Ch. 705, at p. 708. Coal Co. (1877), 5 Oh, D. 769. 46 L. J. Ch. 
 
 it) Clowes V. Staff'ordsliire Potteries 773. 
 Waterworks Co. (1872), 8 Ch. 125, 142,42 I^, 
 
iiauNCTioNs. 527 
 
 may have to incur in removing it makes no difference to 
 his liability, any more than a debtor's being 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 injunction. The Court will use a 
 discretion in granting reasonable time for the execution of 
 its orders, or extending that time afterwards on cause 
 shown. But where an injunction is the only adequate 
 remedy for the plaintiff, the trouble and expense to which 
 the defendant may be put in obeying the order of the Court 
 are in themselves no reason for withholding it (m). 
 
 Parties entitled to sue for nuisance. As to the per- 
 son entitled to sue for a nuisance: as regards inter- 
 ference with the actual enjoyment of property, only the 
 
 («) A.-G. T. Colney Satch Inmatic Asylum (1868), t Ch. U6. 
 
 Difficulty or expense of abatement no answer. It is a general rule 
 that where a naisance is judicially declared to exist its abatement or re- 
 moval will be required even though the expense be large and the diffi- 
 culty great. In the case of Baltimore & Y. T. R. v. State (63 Md. 574), 
 it was held to be no answer to an indictment against the company for 
 permitting Its turn-pike to fall into such a ruinous and defective condi- 
 tion for want of due repair, as to amount to a public nuisance, that the 
 company was pecuniarily unable to abate It. 
 
 Parties entitled to sue for nuisance. If the estate is affected by the 
 nuisance and the injury be permanent the owner is the proper person to 
 bring an action therefor, but the person in lawful possession of the prem- 
 ises should sue for injuries to the enjoyment and occupancy of the 
 premises. Lockett v. Fort Worth & E. G. Ey.'Co., 78 Tex. 211 ; 14 S. W. 
 Rep. 564. In the case of Bier v. Cooke (37 Hun, 38), where the plaintiff, 
 the lessee for a term of three years of a dwelling-house, brought an 
 action to restrain the defendant from so conducting the business of 
 manufacturing sashes, blinds and boxes in the adjoining premises as to 
 allow the steam, smoke, soot, cinders and partly burning shavings issu- 
 ing therefrom to come upon and Into the plaintiff's premises to her 
 annoyance, it was held that she was entitled to an injunction. 
 
 As has heretofore been said, every individual who receives actual 
 damage from nuisance may maintain a private suit for his own injury, so 
 in Eavanaugh v. Barber (59 Hun, 60; 12 N. Y. S. Rep. 603), it is held 
 
528 NUISANCE. 
 
 tenant in possession can sue; but the landlord or rever- 
 sioner can sue if the injury is of such a nature as to affect 
 his estate, say by permanent depreciation 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 tem- 
 porary nuisance, though he may properly sue as co- 
 plainant 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, inasmuch 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 in its 
 
 (x) Sec Dicey on Parties, 340. the supposition thsit a, weekly tenant 
 
 (j/) Jones V. Chappell (1875), 20 Eq. cannot sue. 
 539, 44 L. J. Oh. 658, which also disoredlts («) Mottv. SlwoOred <1875),20 Eq. 23, 
 
 U L. J. Ch. 384. 
 
 that a married man, residing with his children and wife in a house owned 
 by the latter, may maintain an action to recover damages resulting from 
 a nuisance in the vicinity thereof, where it inflicts a particular injury 
 upon him. In this case the court said : "It is certain that the Individual 
 action, is not by any means confined to cases which afiect the realty." 
 
 If the action is at law, those haying distinct interests affected by the 
 same nuisance must bring separate actions. Hellams v. Switzer, 24 S. 
 C. 39; Great Falls Co. v. Worster, 15 N. H. 412. But a contrary rule 
 prevails in equity, where several different persons whose injuries from 
 the same nuisance vary only in degree may join, as in Rowbotbam v. 
 Jones (47 N. J. Bq. 337; 20 At. Eep. 731), it was held that several owners 
 of distinct tenements may join in a suit to restrain a nuisance, or other 
 grievance, which is common to all of them, afEecting each in a similar 
 way, but may not so join when the object of the suit is to restrain that 
 which does a distinct special injury to each of their properties. See 
 Fogg V. N. C. O. Ry., 20 Nev. 441 ; 28 Pac. Eep. 840; Marselis v. Banking 
 Co., 1 N. J. Eq. 31; Hinchman v. Railroad Co., 17 Id. 75; Grant v. 
 Schmidt, 22 Minn. 1; Davidson v. Isham, 9 N. J. Eq. 186; Selfried ■». 
 Hays, 81 Ky. 377; 50 Am. Rep. 167; Reid v. Gifford, Hopk.Ch. 419; Mur- 
 ray V. Hay, 1 Barb. 59; 43 Am. Dec. 778; Town of Sullivan v. Phillips, 
 110 Ind. 320. Contra, Henchman 'v. Patterson etc. R. Co., 17 N. J. Eq. 
 75; Morris etc. R. Co. v. Prudden, 20 Id. 530; Demarest v. Hardham, 34 
 Id. 469; Snyder v. Cabell, 29 W. Va. 48. 
 
PARTIES. 529 
 
 nature temporary, such as noise and smoke, even if the 
 nuisance drives away his tenants (a), or by reason thereof 
 he can get only a reduced rent on the renewal of the ten- 
 ancy (6). " Since, in order to give a reversioner an action 
 of this kind, there must be some injury done to the inherit- 
 anee, 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). 
 * 
 Parties liable. As to liability: The person primarily 
 liable for a nuisance is he who actually creates it, whether 
 on his own land or not (e). The owner or occupier of land 
 
 (a) Simpson v. Savage (1856), 1 0. B. (<?) Metropolitan Association v. Fetch 
 
 N. S. 347, 26 L. J. O. P. 50. (1858), 6 C. B, N. S. 504, 27 L. J. C. P. 330. 
 
 ib) Mumford v. Oxford ^-c. S. Co. (ey See Thompsony. Gibson (,18iV), 7 M. 
 
 (1856), 1 H . & N. 34, 25 L. J. Ex. 265. & W. 456. 
 
 (c) Per cur. 1 C. B. N. S. at p. 361. 
 
 Parties liable. Agreeing with the text that he who creates a nuisance 
 or continues a nuisance created by another is liable therefor. See Cobb 
 V. Smith, 38 Vyis. 33, citing Staple v. Spring, 10 Mass 72 ; Hodges «. 
 Hodges, 5 Mete, 205; Conhocton Stone Co. v. BtifCalo, etc. By;, 52 Barb. 
 390; Smith v. Elliott, 9 Pa. St. 345. See Whitenack v. Philadelphia & E. 
 E. Co., 571'ed. Eep. 901. 
 
 Also, " A person, who contributes to the production of a nuisance, 
 may be chargeable therewith in a separate action, although many others 
 contributed thereto, and his act alone would not constitute a nuisance, if 
 the combined effect is to create an actionable injury. So if several per- 
 sons drain their premises in the same ditch, the waters from which are 
 discharged near the premises of another, and produce an injury to his 
 person or his comfortable enjoyment, each of the persons so using the 
 drainisliable, in separate aciioras for the damages occasioned him. * * * 
 But in such a case the defendant Is chargeable only to the extent of the 
 injury done by himself. Chipman v. Palmer, 77 N. Y. 51 . See Keys v. 
 Gold Co., 53 Cal. 724; Martinowsky v. City of Hannibal, 35 Mo. App. 77; 
 Harley v. Merrill Brick Co. (la.), 48 N. W. Eep. 1000 ; Chenango v. Lewis 
 Bridge Co., 63 Barb. Ill; Chipman v. Palmer, 9 Hun, 517; 77 N. Y. 51; 
 33 Am. Bep. 566. Or they may be sued jointly at the option of the 
 plaintiff. Eogers,». Stewart, 5 Vt. 215; 26 Ain. Dec. 296 ; Anderson v. 
 Dickie, 26 How. Pr. 105; Grogan v. Pope Iron etc. Co., 87 Mo. 323; Bud- 
 dington v. Shearer, 20 Pick. 477. 
 
 If one permits the establishment of a public nuisance upon property 
 under his control, though incidental to a work otherwise lawful, he will 
 
 3-t 
 
530 NUISANCE. 
 
 on which a nuisance is created, though not by himself or by 
 his servants, may also be liable in certain conditions. If a 
 man lets a house or land with a nuisance on it, he as well 
 as the lessee is answerable for the continuance thereof {f), 
 
 (/) rodd v-JViarft* (I860), 9 C.B.N. S. prepared for delivery In the Ex. Oh., 
 377, 30 L. J. 0. P. 21. The extension of bnt the plaintiff meanwhile agreed to a 
 this in Oandy v. Jubher (1364), Si B. & S. stet processus on the recommendation of 
 78, 33 Ii. J. Q. B. 151, by treating the the Conrt: see 5 B. & S. 485, and the text 
 landlord's passive continaance of a of thie undelivered judgment in 9 B. & S. 
 yearly tenancy as equivalent to a relet- 15. The decision of the Q. B. has how- 
 ting, so as to make him liable for a nui- ever been held to apply to a weekly 
 sance created since the original demise, tenancy, on the ground that its contin- 
 is inconsistent with the later authorities nance from week to week is mere matter 
 cited below: and in that ease a judg- of contract: 5and/or(i v. CtorAe (1883), 21 
 ment reversing the decision was actually Q. B. D. 398, 57 L. J. Q. B. 507. 
 
 be liable. Davie v. Levy, 39 La. An. 551; 2 So. Eep. 395. See Pierce v. 
 German Law & Loan Soc, 72 Cal. 180; 13 Pac. Eep. 478. 
 
 Where one vfho has erected a nuisance on his land conveys the land to a 
 purchaser who continues the nuisance, the vendor remains liable, and the 
 purchaser is also liable if after notice he does not remove it. Thus in 
 Brady c. Weeks (3 Barb. 161), the court said: "Whenever the erector of 
 a nuisance owns the premises on which the nuisance is erected, and lets 
 the premises to another, an action on the case will lie against him,\for 
 the injury the nuisance occasions while the premises are in the occupation 
 of his lessee. The demise in such case affirms the continuance of the 
 nuisance, and it may be said to be a continuation of the nuisance by the 
 lessor." See Waggoner v. Jermalne, 3 Denio, 310; Plumer v. Harper, 3 
 N. H. 88; Staple v. Spring, 10 Mass. 74; Sloggy v. Dilworth (Minn.), 36 
 N. W. Rep. 451; Alexander v. Kerr, 2 Eawle, 83; Blunt?). Aiken, l5 Wend, 
 622; Eouse v. Chicago etc. E. Co., 42 111. App. 421; Lohmiller ». The 
 Indian Ford Water Power Co., 51 Wis. 683; Walter v. Commissioners, 35 
 Md. 385; Steinke v. Bentley (Ind. App.), 34 N. E. Eep. 97. In the case 
 Of Slights. Gutzlaff (35 Wis. 675), it was held that where a lessee or 
 grantee continues a nuisance, of a nature not essentially unlawful, erected 
 by his lessor or grantor, he is liable to an action for it only after noticeio 
 reform and abate it. But in Dickson v. Chicago, etc. R. Co. (71 Mo. 
 575) it was held to be sufficient if he knew of the existence of the nui- 
 sance. See Morris etc. Co. v. Eyerson, 27 N. J. L. 457. It is an undis- 
 puted proposition that the tenant is liable for a nuisance produced only 
 by his own act. Tale v. Missouri etc. E. Co., 64 Mo. 149; Wasner v, 
 Delaware etc. Co., 80 N. Y. 212; Tow v. Eoberts, 108 Pa. St. 489; Knauss 
 V. Brua, 107 Pa. St. 85; Samuelson v. Cleveland etc., 40 Mich. 164; 
 Owings«. Jones, 9Md. 108; Norton «. Wiswall, 26 Barb. 618; Heimstreet 
 V. Howland, 5 Denio, 68; St. Louis v. Kaine, 2 Mo. App. 66; Felton v. 
 Deall, 22 Vt. 170; Mahoney v. Atlantic etc. E. Co., 63 Me. 68; Schmidt 
 V. Cook, 23 N. Y. S. Eep. 799; 30 Abb. N. C. 285; 4 Misc. Eep. 85. 
 
 Private corporations are liable for nuisances like individuals and so 
 
PARTIES. 531 
 
 if it is caused by the omission of repairs which as between 
 himself and the tenant he is bound to do (/), but not 
 otherwise (gr). If the landlord has not agreed to repair, he 
 is not liable for defects of repair happening during the 
 tenancy, even if he habitually looks to the repairs in 
 fact (k). It 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 dif- 
 ference and that only something amounting to an authority 
 to continue the nuisant;e will make him liable (i). 
 
 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 some- 
 thing^capable of being so used as to create a nuisance, and 
 the tenant has so used it (I). Nor is the 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 (wz). 
 
 If one who has erected a nuisance on his land conveys 
 the land to a purchaser who continues the nuisance, the 
 vendor remains liable (n), and the purchaser is also liable 
 if on request he does not remove it (oy 
 
 (g) Prettyr. £ickmoreil813),h.B,.8C. (t) iFhite v. Jameson (11^ i), 18 Hq. 303. 
 
 P. 401; GieinneUv. Earner (.1815),!,. R. 10 (0 Jiich v. Basterfield (1847), 4 C. B. 
 
 C. P. 6S8. 783, 16 L. J. C. P. 273. 
 
 (ft) Nelson y. Liverpool Brewery Co. (m) Saxby v. Manchester cf- Sheffield B. 
 
 (1877), 2 C. P. D. 311, 46 L. J. C. P, 675; Co. (1869), L. E. 4 G. P. 198, 38 L. J. C. P. 
 
 cp. Rich V. Basterfield (1847), 4 C.B. 783, 153, where the defendants had given the 
 
 16 L. J. 0. P. 273. _ plaintiff licence to abate the nuisance 
 
 (j) Pretty v. Biclemore (ISft), L. R. 8 C. himself so far as they were concerned. 
 
 P.401; Gwinnellv. .Earner (1875), L. E. 10 (n) Eosewelly. Prior (1101), liMoA.&ii. 
 
 C. P. 658. (o) PenruMdocWs ca., 6 Co. Eep. 101 a. 
 
 are municipal corporations except when shielded by special laws. 
 Mehrhof etc. Co. v. Delaware, etc. E. Co., 51 N. J. L. 56; 10 At. Eep. 12; 
 Taylor v. Mayor, etc. of Cumberland, 64 Md. 73 ; 20 At. Eep. 1027 ; Lostutter 
 V. The City of Aurora, 126 Ind. 436; 26 N. B. Eep. 184; Mootry v. Town 
 of Danbury, 45 Conn. 650; Hubbell v. City of Viroqua, 67 Wis. 343; 30 N. 
 W. Eep. 847; Attwood v. City of Bangor, 83 Me. 582; 22 At. Eep. 466; 
 Bacon v. City of Boston, 154 Mass. 100; 28 N. E. Eep. 9. See corpo- 
 ration cases cited generally under Modes of Annoyance, ante, p. 363. 
 
532 
 
 CHAPTER XI. 
 
 NEGLIGENCE (o). 
 
 I. — The General Conception. 
 
 Omission contrasted witli action as groutid of liability. 
 
 For acts and their results ( within the limits expressed by 
 the term " natural and probable consequences," and dis- 
 cussed in a foregoing chapter, and subject to the grounds 
 of justification and excuse which have also been discussed) 
 the actor is, generally speaking, held answerable by law. 
 For mere omission a man is not, generally speaking, held 
 answerable. Not that the consequences or the moral 
 gravity of an omission are necessarily less. One who re- 
 frains 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 ser- 
 vice to their ne^hbours at all times when a good or a 
 brave man would do so (6). Some already existing rela- 
 tion of duty must be established, which relation will be 
 found in most cases, though not in all, to depend on a 
 foregoing voluntary act of the party held liable. He was 
 
 (o) Those who seek luUer Informa- (&) See Note M. to the Indian Penal 
 
 tion on the subject of this chapter may Code as originally framed by the Com- 
 
 find it in Mr. Thomas Seven's exhaus- missioners. Yet attempts of this kind 
 
 tive and scholarly monograph (" Prlncl- have been made in one or two recent 
 
 pies of the Law of Negligence," London, Continental proposals for the Improve- 
 
 18S8). ment of criminal law. 
 
DUTY OF CAUTION. 633 
 
 not in the first instance bound to do anything at all ; but by 
 some independent motion of his own he has given hostages, 
 so to speak, to the law. Thus I am not compelled to be a 
 parent ; but if I am one, I must maintain my children. I 
 am not compelled to employ servants; but if I do, I must 
 answer for their conduct in the course of their employment. 
 The widest rule of this kind is that which is developed in 
 the law of Negligence. One who enters on the doing of 
 anything attended with risk to the persons or property of 
 others is held answerable for the use of a certain measure 
 of caution to guard against that risk. To , name one of 
 the commonest applications, " those who go personally or 
 bring property where they know that they or it may come 
 into collision with the persons or property of others have 
 by law a duty cast upon them to use reasonable care and 
 skill to avoid such a collision " (c). The caution that is 
 required is in proportion to the magnitude and the apparent 
 imminence of the risk : and we shall see that for certain 
 cases the policy of the law has been to lay down exception- 
 ally strict and definite rules. While some acts and occu- 
 pations are more obviously dangerous than others, there is 
 hardly any kind of human action that may not, under some 
 circumstances, be a source of some danger. 
 
 General duty of caution in acts. Thus we arrive at the 
 general rule that every one is bound to exercise due care 
 towards his neighbours in his acts and conduct, or rather 
 
 (c) Lord Blackburn, 3 App. Oa. at p. 1206. 
 
 General duty of caution In acts. Every person is bound to exercise 
 that degree of care, with reference to others, which is dictated by 
 common prudence. Also, the care exercised must, in each Instance, 
 be commensurate with the apparent avoidable danger. "A careful 
 man Is guided by a reasonable estimate of possibilities. His pre- 
 caution is measured by that which appears likely in the usual course 
 of things. The rule does not require him to use every possible pre- 
 caution to avoid injury to others. He is only required to use such 
 reasonable precautions to prevent accidents as would ordinarily be 
 
534 NEGLIGENCE. 
 
 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 of contract and tort. In some cases this 
 ground of liability may co-exist vsrith a liability on contract 
 towards the same person, and arising (as regards the 
 
 (<?) Cp. per Brett M. R., Heaven T. Pender (1883), 11 Q . B. Div. at p. 507. 
 
 adopted by careful, prudent persons under like circumstances." Baker 
 V. Savage, 45 N. T. 191, followed in Schmidt v. S. & H. P. Ky. Co., 132 
 N. Y. 66G; 30 N. B. Eep. 389. See Indianapolis Union Ey. Co. v. Boett- 
 cher, 131 Ind. 82; 22 N. E. Eep. 551 ; Presby v. Grand Trunk Ey. (TS. H.), 
 22 At. Eep. 554; Albee v. The Chappaqua Shoe Mfg. Co., 62 Hun, 223; 16 
 N. Y. S. Eep. 687; G. C. & S. F. Ey. Co. v. Box, 81 Tex. 670; 17 S. W. 
 Eep. 375; S. W. Tel. & Telephone Co. v. Eobinson, 50 Fed. Eep. 810; 
 1 C. C. A. 684; Schubert ». Clark Co., 49 Minn. 331 ; Heizer v. Eingsland 
 etc. Co., 110 Mo. 605; 19 S. W. Eep. 630; McNally v. Colwell, 91 Mich. 
 527; 62 N. W. Eep. 70; Cowley v. Colwell, 91 Mich. 537; 52 N. W. Eep. 
 73; Dehring v. Comstock, 78 Mich. 153; 43 N. W.' Eep. 1049; Unger «. 
 Forty-second etc. E. Co., 51 N. Y. 501; Maker v. Slater Mill Power Co., 
 15 E. I. 112; Kalbus v. Abbott, 77 Wis. 627; 46 N. W. Eep. 810; Shelly v. 
 City of Austin, 7'4 Tex. 608 ; 12 S. "W. Eep. 753. 
 
 Thus, " The law Imposes upon all persons using a highway, whether 
 upon land or water, the obligation to exercise ordinary care to avoid 
 Inflicting injury upon others." Kelsey v. Barney, 12 N. Y. 429; City of 
 Austin V. Eitz, 72 Tex. 392; 9 S. W. Eep. 884; Middlestadt u. Morrison 
 (Wis.), 44 N. W. Eep. 1103; Potter v. Moran, 61 Mich. 60; 27 N. W. Eep. 
 854; Stringer ■b. Frost, 116 Ind. 477; 19 N. B. Eep. 331 ; Wendell v. N. Y. 
 Cent. etc. E. E. Co., 91 N. Y. 420; Williams u. Grealy, 112 Mass. 79; 
 Harris v. Simon (N. C), 10 S. E. Kep. 1076; Hudson v. Houser, 123 Ind. 
 309; 24 N. B. Eep. 243; Eiley v. Farnnm, 62 N. H. 42; Alexander v. num- 
 ber, 86 Ky. 565; Murphy v. Orr, 96 N. Y. 114. 
 
 Overlapping of contract and tort. Where there exists between the 
 parties relations of duty as defined above and they have been disregarded," 
 the right of action in favor of the Injured party against the negligent 
 party Is not prohibited by the fact that the duty itself arose out 
 of a contract. The foundation of an action may be a contract, and 
 the gravamen of it the breach of the contract. Unless the contract 
 creates a relation, out of which relation springs a duty, independent of 
 the mere contract obligation, though there may be a breach of the con- 
 tract, there is no tort, since there is no duty to be violated. " It may be 
 grauted that an omission to perform a contract is never a tort, unless 
 
OVERLAPPING OF CONTRACT AND TORT. 535 
 
 breach) out of the same facts. Where a man interferes 
 gratuitously, he is bound to act in a reasonable and pru- 
 dent manner according to the circumstances and opportuni- 
 ties of the case. And this duty is not afected 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 con- 
 tract (e). The two duties are distinct, except so far as the 
 same party cannot be compensated twice over for the 
 
 (e) This appears to be tbe,sabstaiice special rules defining the duty of ocon- 
 
 of the rule intended to be laid down by piers (eee Chap. XII. below). And, so 
 
 Brett M. K. in Heaven v. Pender (1883), far as the judgment of Brett M. E. piir- 
 
 11 Q. B. D. at pp. 507 — 510; his judgment ported to exhibit those rules as a simple 
 
 was however understood by the other deduction from the general rule as to 
 
 members of the dourt (Cotton and negligence, it is submitted that the dis- 
 
 Bowen L. JJ.) as formulating some sent of the Ldrds Justices was well 
 
 wider rule to which they could not as- founded. And see Beven on Negli- 
 
 sent. The case itself comes under the gence, 63. 
 
 theomissibn is also an omission of a legal duty, yet, such legal duty may 
 arise, not merely out of certain relations of trust and confidence, inher- 
 ent in the nature of the contract itself, but may spring from extraneous 
 circumstances, not constituting elements of the contract as such, 
 although connected with and dependent upon It,, and born of that wider 
 range of legal duty which is due from every man to his fellow, » * * 
 The whole doctrine is accurately and concisely stated in 1 Chit. PI. 136 ■ 
 that ' if a common-law duty results to be sued in tort from any negligence 
 or misfeasance in the execution of the contract.' "- Rich v. New York 
 •Cent. etc. R. Co., 87 N. Y. 389; 11 Am. and Eng. R. Cas. 594, citing 
 Kerwhacker v. C. C. & C. R. Co., 3 Ohio St. 188; Benton «. Pratt, 2 
 Wend. 385; Bebinger v. Sweet, 1 Abb. N. C. 263. See Robinson ». 
 Threadgill, 13 Ired. 39; Champlain ». Rowley, 13 Wend. 261; Dean ». 
 McLean, 48 Vt. 412; 21 Am. Rep. 130; Bell v. Cummings, 3 Sneed 
 (Tenn.), 149; Vanleen v. Fain, 6 Humph. 104; Horsely v. Branch, 1 Id. 
 198; Lane v. Cameiton, 38 Wis. 603. 
 
 " The principle running thrt)ugh all the cases seem to be that where 
 the action is maintainable for the tort simply, without reference to any 
 contract between the parties, the action is one of tort purely, although 
 the existence of a contract may have been the occasion or furnished the 
 opportunity for committing the tort. But where the action is not main- 
 tainable without proving and pleading the contract, where the gist of the 
 action is the breach of the contract, either by malfeasance or nonfeas- 
 ance, it is, in substance, whatever may be the form of the pleading, an 
 action on the contract, and hence all persons jointly liable must be sued." 
 Whittaker v. Collins, 34 Minn. 299. See Weld v, Saratoga & S. R. Co., 
 19 Wend. 533. 
 
536 NEGLIGENCE. 
 
 same facts, once for the breach of contract and again for the 
 wrong. Historically the liability in tort is older ; and 
 indeed it was by a special development of this view that 
 the action of assumpsit, afterwards the common mode of 
 enforcing simple contracts, was brought into use ( /). " If 
 a smith prick my horse with a nail, etc., I shall have my 
 action upon the case against him, without any warranty 
 by the smith to do it well. . . . For it is the duty of 
 every artificer to exercise his art rightly and truly as he 
 ought " {g). This overlapping of the regions of Contract 
 and Tort gives rise to troublesome questions which we are 
 not yet ready to discuss. They are dealt with in the con- 
 cluding chapter of this book. Meanwhile we shall have to 
 use for authority and illustration many cases where there 
 was a co-existing duty ex contractu, or even where the duty 
 actually enforced was of that kind. For the obligation of 
 many contracts is, by usage and the nature of the case, 
 not to perform something absolutely, but to use all reason- 
 able skill and care to perform it. Putting aside the re- 
 sponsibilities of common carriers and innkeepers, which 
 are peculiar, we have this state of things in most agree- 
 ments 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 
 questions, what was the measure of due care as between 
 the defendant and the plaintiff, and whether such care 
 was used, have to be dealt with on the same principles. 
 In other words, negligence in performing a contract and 
 
 (/) Cp. the present writer's "Prln- tion of special skill being a material ele- 
 
 olples of Contract," p. 141, 5th ed., and ment op. Shielts y. BlacHbume (1789), 2 
 
 Prof. Ames's articles, " The History of H. Bl. 158, 2 R. E. 750; where " gross 
 
 Assumpsit," in Harv. Law Eev. il. 1, 53. negligence " appears to mean merely 
 
 (jr) F. N. B. 94 D. As to the assump- actionable negligence. 
 
aldeeson's definition. 537 
 
 negligence independent of contract create liability in dif- 
 ferent ways: but the authorities that determine for us what 
 is meant by negligence are in the main applicable to both. 
 
 Definition of negligence. The general rule was thus 
 stated by Baron Alderson : " Negligence is the omission to 
 do something which a reasonable man, guided upon those 
 
 Definition of negligence. The American cases defining negligence 
 are in harmony with the text, vide Great Western E. Co. v. Haworth, 
 39 111. 353; Chicago, etc. Ei Co. v. Johnson, 103 111. 521, citing Towanda 
 E. Co. V. Munger, 5 Denio, 267; Gardner v. Heartt, 3 Id. 236; Eailroad 
 Co. V. Jones, 95 U. S. 439; Great Western E. Co. ». Haworth, 39 111. 353. 
 See Hammond v. Town of Mukwa, 40 Wis. 35; Wilson v. New York, 
 etc. E. Co., 11 Gill, & J. 58; Kansas City etc. E. Co. v. Stoner, 49 Fed. 
 Eep. 209; 4 II. S. App. 109; 1 C. C. A. 281; Doyle v. Chicago, St. P. & 
 K. G. Ey. Co., 77 la. 607; 42 N. W. Eep. 555; Kaspari v. Marsh, 74 Wis. 
 566; 43 N. W. Eep. 368; Eosenfleld v. Arwe, 44 Minn. 395; 46 N. W. 
 Eep. 768; Simmons v. Everson, 125 N. Y. 319; 26 N. E. Eep. 911; Tucker 
 V. Illinois C. E. Co., 42 La. An. 114; 7 So. Eep. 124; Smethurst 
 ■u. Barton Square Church, 148 Mass. 265; 19 N. E. Eep. 387; City of 
 Anderson v. East, 117 Ind. 126; 19 N. E. Eep. 726; Holmes v. Drew, 151 
 Mass. 578; 25 N. E. Eep. 22; Galloway W.Chicago, etc. Ey. Co. 
 (la.), 54 N. W. Eep. 447; Holmes v. Atchison, etc. E. Co., 48 Mo. 
 App. 79; Texas & P. Ey. Co. v. Gorman (Tex. Civ. App.) 21 S. W. Eep. 
 158. 
 
 One may act in perfect good faith and still be guilty of gross negli- 
 gence. Negligence and willfulness are the opposite of each other. They 
 indicate radically different mental states. Lincoln v. Buckmaster, 32 
 Vt. 642; Sharp v. Bouner, 36 Ga. 418; Grand Trunk Ey. Co. o. Ives, 144 
 IT. S. 47; 12 S. Ct. Eep. 679; Blaen Avon Coal Co. v. McCuUoh, 59 Md. 
 403; WallardB. Wortham, 84 111. 446; Noyes v. Shepherd, 30 Me. 173; 
 McLelland v. Louisville, etc. E. Co., 94 Md. 276; Morgan v. Curley, 142 
 Mass. 107; Smiths. Goodman, 75 Ga. 198; West v. Forrest, 114 Mass. 
 519 ; Jefferson, etc. E. Co. v. Eiley, 39 Ind. 568 ; Carter v. Louisville etc. 
 E. Co., 98 Ind. 655; 8 Am. & Eng. E. Cas. 347; 22 Am. & Eng. E. Cas. 
 360; Browne. Chicago, etc. E. Co., 54 Wis. 342; 3 Am. & Eng. E. Cas. 
 444; Columbus etc. B. Co. v. Bridges, 86 Ala. 448; Peoria Bridge Assn. 
 «. Loomis, 20 111. 235; 71 Am. Dec. 263; Toledo etc. E. Co. v. Bryan, 
 107 Ind. 51; Cleveland etc. E. Co. o. Asbury, 120 Ind. 289; Louisville 
 etc. E. Co. V. Filbem, 6 Bush, 574; 99 Am. Dec. 690; Lexington v. Lewis, 
 10 Bush, 677; Paducah etc. E. Co. v. Lelcher (Ky.), 12 Am. & Eng. E. 
 Cas. 61; Moody v. McDonald, 4 Cal. 297; Norfolk etc. E. Co. v. Ormsby, 
 27 Gratt. 465. 
 
 The questions which arise upon what constitutes negligence, usually 
 
538 NEGLISENCE, 
 
 considerations which ordinarily regulate the conduct of 
 human affairs, would do, or doing something which a pru- 
 dent and reasonable man would not do " (^). It was not 
 necessary for him to state, but we have always to remem- 
 ber, that negligence will not be a ground of legal liability 
 « unless the party whose conduct is in question is already in 
 a situation 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 psychology, 
 
 (A) Blyth V. BvrmingJiam Waterworks L. ^ S. W. M. Co. (1870), L. E. 6 C. P. at 
 Co. (1856), 11 Ex. at p. 784, i25 L. J. Ex. at p. 102. 
 p. 213; adopted by Brett J. in SjMth t. 
 
 relate not to the meaning of the word, but the question of fact. " Neg- 
 ligence, in one sense is a quality attaching to acts dependent upon and 
 arising out of the duties and relations of the parties concerned, and is as 
 much a fact to be found by the jury as the alleged acts to which it 
 attaches, by virtue of such duties and relations." Texas & P. Ry. Co. 
 V. Murphy, 46 Tex. 366, followed in Rowland v. Murphy, 66 Id. 636; 1 S. 
 W. Rep. 658. See Kerwhacker v. C. C. & C. E. Co., 3 Ohio St. 186; 
 Carter v. Columbia & G. E. Co., 19 S. C. 24; Salmon v. Railroad Co., 38 
 N.J. L. 11; Sunney v. Holt, 15 Fed. Rep. 880; Backus v. Hart, 13 Id. 
 691: Parrott v. Wells, 15 Wall. 534; Crandall v. Goodrich Transp. Co., 
 16 Fed. Rep. 75; Baltimore, etc. R. Co. u. Jones, 95 U. S. 439. 
 
 From the definitions it may be concluded that the term negligence, in 
 its legal acceptation, includes acts of omission as well as of commission, 
 while diligence implies action as well as forbearance to act. Grant v. 
 Moseley, 29 Ala. 302. 
 
 The Roman jurists maintained that there were but two grades of neg- 
 ligence, culpa, gross negligence, and culpa levis, ordinary' negligence. 
 But the common law recognizes a triple classification : ordinary negli- 
 gence, slight negligence and gross negligence. See Louisville etc. R. 
 Co. V. McCoy (Ky.), 15 Am. & Eng. E. Cas. 277; Fowlers. Baltimore etc. 
 R.C8., 18 W. Va. 679; 8 Am. & Eng. R. Cas. 480; Wabash etc. R. Co. v. 
 Locke, 112 Ind. 404; Milwaukee etc. R. Co. v. Arms, 91 U. S. 494; Simp- 
 kins V. Columbia etc. R. Co., 20 S. C. 268; 19 Am. & Eng. R. Cas. 467; 
 Richmond etc. R. Co. v. Howard, 79 Ga. 44 ; Wormell v. Maine Cent. R. 
 Co., 79 Me. 397; Am. & Eng. R. Cas. 272; Norfolk etc. R. Co. ». Budge, 
 65 Va. 68; Meredith v. Reed, 26 Ind. 334; Pratt v. Wells, Fargo etc., 15 
 Wall. 624; Petrie v. Columbia & G. R. Co., 29 S. C. 303; 7 S. E. Rep. 616; 
 Cayzer v. Taylor, 10 Gray, 274; Cunningham v. Hall, 4 Allen, 268; Cen- 
 tral R. R. Co. V. Moore, 24 N. J. L. 624;; Penn. E. Co. v. Ogier, 36 Pa. 
 St. 60. 
 
BEFINITION OF NEGLIGENCE. 539 
 
 and law disregards many psychological distinctions not 
 b ecau se lawyers are ign orant of their existence, but because 
 for legal purposes it is impracticable or useless to regard 
 them. Even if the terms were used by lawyers in a pecu- 
 liar sense, 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 prudent man under the given circum- 
 stances. 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 circum- 
 stances. Even as to these the point of actual knowledge 
 is a subordinate one as regards the theoretical foundation 
 of liability. The question is not so much what a man of 
 whom diligence was required actually thought of or per- 
 ceived, as what would have been perceived by a man of 
 ordinary sense who did think («"). A man's responsibility 
 may be increased by his happening to be in possession 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 of 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 {j), 
 it is both easier and rnore convincing to prove this than to 
 show in a general way what a prudent man in the defend- 
 ant's place ought to have known. In an extreme case 
 reckless omission to use care, after notice of the risk, may 
 be held, as matter of fact, to prove a rnischievous inten^ 
 
 (i) Brett M. K., H Q. B. Div. 508. after being warned that his haystaet 
 
 (J) As m Vaughanv. Menlove (1837), 3 was Jlkely to take Are, said he would 
 Bing. N. C. 468, where the defendant chance It (pp. 471, 477). 
 
540 NEGLIGENCE. 
 
 tion : 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 standard of duty does not vary with individual 
 ability. We have assumed that the standard of, duty is 
 not the foresight and caution which this or that particular 
 man is capable of, but the foresight and caution of a pru- 
 dent man — the average prudent man, or, as our books 
 rather affect to say, a reasonable man — standing in this or 
 that man's shoes ( A). This idea so pervades the. mass of 
 
 (i) Compare the Aristotelian use of 6 ^pdvifxo^ or 6 tXTZouSaXot; in determin- 
 ing the standard of moral duty. 
 
 The standard of duty does not vary witb Individual ability. To 
 establish a rule that the standard of duty varies with either the physical 
 or mental ability of each individual would not only be unreasonable but 
 impracticable ; since. It would then become necessary to inquire into the 
 capacity for diligence and caution in each particular case and determine 
 whether the degree of care exercised was or was not commensurate with 
 the ability of the individual, without reference to precedent or the 
 established rules of law. Accordingly in the case of Worthington o. 
 Mencer QAla.), 11 So. Eep. 73, the court said: "If he was merely 
 a person of dull mind, who could labor for his own livelihood, and there 
 was no apparent necessity of putting him under the protection of a 
 guardian to keep him out of harm's way, he is-chargeable with the same 
 degree of care for his personal safety as one of brighter intellect, as any 
 attempt to fraud and adopt varying rules of responsibility to varying 
 degrees of intelligence would necessarily involve confusion and uncer- 
 tainty in the law." See Berg v. City of Milwaukee, 83 Wis. 699; 53 N. 
 "W. Eep. 890. 
 
 In America where women have triumphantly entered the forum, the 
 pulpit and the politic9.1 arena, and where in a few of the States the 
 ancient principles of the common law have been overthrown and females 
 invested with the statutory right to vote and hold offlce, it is natural 
 that there should have ai:isen the question whether sex affected this 
 standard of duty. In the case of Hessenyer v. Michigan Cent. E. (48 
 Mich. 205; 42 Am. Eep. 470), it is said by the court that, "Sex is certainly 
 no excuse for negligence. * * * And if we judge of ordinary care by 
 the standard of what is commonly looked for and expected, we should 
 probably agree that a woman would be more prudent, careful and par- 
 ticular in many positions and in the performance of many duties than a 
 man would." Citing Fox v- Glastenberg, 29 Conn. 204. 
 
THE STANDARD OF PRUDENCE. 541 
 
 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 (?). 
 The action was against an occupier 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 buildings which in turn communicated 
 the fire to the plaintiff'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 circumstances." A rule for a n^w trial was 
 obtained " 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 uncertain to afford 
 any criterion; but whether he had acted bona flde to the 
 best of his judgment; if he had, he ought not to be 
 responsible for the misfortune of not possessing the 
 highest (»w) order of n eglig ence." The Court unani- 
 mously '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 alleged uncertainty of the rule had been found no 
 obstacle 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 each 
 
 (!) Ycmglwmy. Menlove (1837), SBing law: not th* highest intelligence, but 
 N. O. 468. intelligence not below the average pru- 
 
 (ro) This misrepresents the rule of dent man's, being required. 
 
542 NEGLIGENCE. 
 
 individual — we ought rather to adhere to the rule which 
 requires in all cases a regard to caution such as a man of 
 ordinary prudence would observe" (m). Quite lately the 
 same principle has been enforced in the Supreme Court of 
 Massachusetts. " If a man's conduct is such 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 assumes that he has as much capacity to 
 judge and to foresee consequences as a man of ordinary 
 prudence would have in the same situation " (o). 
 
 Diligence includes competence. It will be remem- 
 bered that the general duty of diligence includes the par- 
 ticular duty of competence in cases where the matter taken 
 in hand is of a sort requiring 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 extension, but a 
 necessary application of the general rule. For a reasona- 
 ble man will know the bounds of his competence, and will 
 not intermeddle (save in extraordinary emergency,) where 
 he is not competent. 
 
 (b) Tlndal O. J., 3 Bing. N. Cat p. J. See tooperBayley J. injonesv. -Bird 
 
 475- (1822) , 6 B. & A. at pp. 845-6. 
 
 (o) Commonwealth v. Pierce (1884), 138 (p) Bayley J., 6 B. & A. at p. 846. 
 
 Mass. 165, 52 Am. Rep. 264, per Holmes 
 
 DUlgence Includes competence. This subject is fully discussed In 
 preceding pages (26, 27). For additional authorities, vide Davis v. 
 Chapman, 83 Va. 67; 1 S. E. Rep. 472; Union P. Ry. Co. v. Estes, 37 
 Kan. 71S; Alexander v. Louisville etc. E. Co., 83 Ky. 589; 2 Am. & Eng. 
 R. Cas. 458; Squire ». Wright. 1 Mo. App. 172; Nelson v. Chicago etc. 
 Ey. Co., 60 "Wis. 320; 22 Am. & Eng. R. Cas. 391; The New "World v. 
 King, 16 How. 469; Page v. Wells, 37 Mich. 415; Cunningham ». Hall, 4 
 Allen, 276. 
 
EVIDENCE : COURT AND JURY. 543 
 
 II. — Evidence of Negligence. 
 
 Negligence a question of mixed fact and law. Due 
 
 care and caution, as we have seen, is the diligence of a 
 reasonable man, and includes reasonable competence in 
 cases where special cqmpetence is needful 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 question •ot fact in the sense of being open as 
 a matter of course and without limit. Not every one who 
 sufpers 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 de- 
 fined, or capable of definition, by legal principle 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 
 
 Negligence a question of mixed tact and law. It may be said that 
 the law determines the duty and the evidence shows whether the duty 
 was performed. When there is no evidence of negligence, or where the 
 facts in the case are undisputed and conclusively established, and there 
 is no reasonable chance for drawing different conclusions from them, the 
 question is one of law for the court, otherwise it is for the jury. " The 
 court is required to charge the law, and the ]ury to find the facts. The, 
 law, however, does not stale what facts proved will show the absence of 
 ordinary care. It could not do so as applicable to every case which 
 arises. The cases involving this question are so different in their facts, 
 so various, so complicated, and arising under so many different circum- 
 stances, that it would be utterly impossible to lay down any general prin- 
 ciple of law by which every special case could be measured and tested as 
 to the fact of negligence, and which would enable the judge to say to the 
 jury, as matter of law, such and such facts show absence or presence of 
 ordinary care." Bridger v. Bailroad Co., 25 N. C. 30. See Carrico v. West 
 Virginia C. & P. Ey. Co., 35 W. Va. 897; 14 S. E. Eep. 12; Nolan v. New 
 York, etc. K. Co., 53 Conn. 471; Needham v. Louisville & N. K. Co., 85 
 Ky. 423; 3 S. W. Eep. 797; Pittsburg, etc. E. Co. ». Evans, 53 Pa. St. 250; 
 Eagan v. Fitchburg E. Co., 101 Mass. 315; Maloy v. New York Cent. E. 
 Co., 58 Barb. 182; Gagg ». Vetter, 41 Ind. 254; Pennsylvania Canal Co. 
 
544 NEGLIGENCE. 
 
 what the law requires at his hands. la the current forensic 
 IDhrase, there must be evidence of negligence. The peculiar 
 relation of the judge to the jury in our common law system 
 has »given occasion for frequent 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 negli- 
 gence. Such discussions are not carried on in the manner 
 best fitted to promote the clear statement of principles ; it 
 is diflicult to sum up their results, and not always easy to 
 reconcile therq. 
 
 The tendency of modern rulings of Courts of Appeal has 
 
 V. Bentley, 66 Pa. St. 30; Emery v. Railroad, 102 N; C. 230; 9 S. E. Eep. 
 139 ; Chicago City Ky. Co. v. Robinson, 127 111. 1 ; Pike v. Grand Trunk 
 Ry. Co., 39 Fed. Eep. 268; SchefEer v. Railroad Co., 105 D. S. 249; Purvis 
 V. Coleman, 1 Bosw. 321 ; Catawissa etc. R. Co. v. Armstrong, 52 Pa. St. 
 282; Baltimore etc. R. Co. v. State, 86 Md. 366; Detroit etc. R. Co. v. 
 Van Steinburg, 17 Mich. 118 ; Philadelphia, etc. R. v. Frank, 67 Md. 339 : 
 Sutton V. New York, etc. R. Co., 66 N. Y. 243; Chicago etc. R. Co. v. MC- 
 Lanlen, 84 111. 109; Tarwater v. Hannibal R. Co., 42 Mo. 193; Coppins v. 
 New York, etc. R. Co.,43 Hun, 26 ; Simms v. South Carolina E. Co., 27 S. C. 
 268; 30 Am. & Eng. R. Cas. 571 ; Ohio etc. R. Co. v. CoUarn, 73 Ind. 261; 
 5 Am. & Eng. R. Cas. 554; Lincoln v. GillUan, 18 Neb. 114; Johnson v. 
 Missouri Pac. R. Co., 18 Neb. 690 ; Hathaway v. East Tennessee, etc. E. 
 Co., 29 Fed. Eep. 489; Hoyt v. Hudson, 41 Wis. 105; Philadelphia, etc. 
 E. Co. V. Schertle, 97 Pa. St. 450; 2 Am. & Eng. R. Cas. 158; Boland v. 
 Missouri R. Co., 36 Mo. 484; Brower v. Edson, 47 Mich. 91; Barton v. 
 St. Louis, etc., R. Co. 52 Mo. 353; New York, etc. R. Co. v. Skinner, 19 
 Pa. St. 298; New Jersey Express Co. v. Nichols, 33 N. J.L. 484; Pennsyl- 
 vania R. Co. V. Righter, 42 Id. 180; 2 Am. & Eng. E. Cas. 220; Sullivan 
 V. Chrysolyte Mining Co., 21 Fed. Eep. 892; Pleasants v. Faut, 22 Wall. 
 116; Filers. New York Cent. E. Co., 49 N.Y. 47; Beaulien?;. Portland Co., 
 48 Me. 291; Cagger v. Lansing, 64 N. Y. 417; Bagley v. Cleveland Roll- 
 ing Mill, 21 Fed. Eep. 159 ; Barton ».St. Louis & I. M. E. Co., 52 Mo. 253; 
 Atkinson v. The Illinois Milk Co., 44 Mo. App. 153; ChafBe v. OJd Colony 
 R. Co., 17 E. I. 658; 24 At. Eep. 141; Woolwine v. C. & O. E. Co., 36 W. 
 Va. 329; 15 S. E. Eep. 86; Sexton v. Zett, 44 N. Y. 430; Woolfolt v. 
 Macon & A. E. Co., 56 Ga. 467; Mississippi Cent. E. Co. v. Mason, 51 
 Miss. 234; Gonzolas ». New York etc. E. Co., 38 N. Y. 442; Goodlett ». 
 Louisville & N. E. E. Co., 122 U. S. 391; Crowley v. Stronse (Cal.), 83 
 ■ Pac. Eep. 456; State v. Lauer (N. J.), 26 At. Eep. 180; Chicago, B. & Q. 
 E. Co. V, Landauer (Neb.), 64 N. W. Eep. 976. 
 
BURDEN OF PROOF. 545 
 
 been, if not to enlarge the province of the jury, to arrest 
 the process of curtailing it. Some distinct boundaries, 
 however, are established. 
 
 Burden of proof. Where there is no contract between 
 the parties, the burden of proof is on him who complains 
 of negligence. He must not only show that he suffered 
 
 Burden ol proof. Agreeing with the text that the burden of proof Is 
 on the plaintifE are numerous American cases. The plaintiff is not 
 bound to prove more than enough to raise a fair presumption of negli- 
 gence, on the part of the defendant, to plaintiff's injury. Eosenfleld v. 
 Arrol, 44 Minn. 393 ; 44 N. W. Rep. 768. See HaJferook v. Utica et^. E. 
 Co., 12 N. Y. 236; 64 Am. Dec. 502; Searles v. Manhattan B. Co., 101 N. 
 Y. 661; 25 Am. & Eng. E. Cas. 358; Seybold v. New York, etc. E. Co., 95 
 N. Y. 562; 47 Am. Eep. 75; 18 Am. & Eng. E. Cas. 162; Hayes v. Mich. 
 Cent. E. Co., Ill U. S. 228; 15 Am. & Eng. E. Cas. 394 ; Philadelphia etc. 
 R. Co. ». Stibbing, 62 Md. 504; 19 Am. & Eng. E. Cas. 36; Caldwell v. 
 New Jersey Steamboat Co., 47 N. Y. 291; Stratton v. Central City H. R. 
 Co., 95 111. 25; 1 Am. & Eng. E. Cas. 116; Kane v. Hibernia Ins. Co., 39 
 N. J. li. 697; 23 Am. Eep. 239; Welch v. Jugenhelmer, 56 la. 11; 41 Am. 
 Rep. 77, overruling Barton ». Thompson, 46 la. 30; 26 Am. Rep. 131; 
 Hershberger v. Lynch (Pa.), 11 At. Rep. 642; Haskins v. Utah Northern 
 Ey. Co. (Idaho), 13 Pac. Rep. 343; Seybolt v. New York etc. R. Co., 95 
 N. Y. 562; 47 Am. Eep. 75; Gliddon v. McKintry, 28 Ala. 408; Chicago, 
 B. & Q. E. Co. V. Harwood, 90 111. 425; Allen v. Willard, 57 Pa. St. 374; 
 Hobson V. New Mexico & A. E. Co. (Ariz.), 11 Pac. Eep. 546; Dowell v. 
 Gnthrle, 99 Mo. 653; 12 S. W. Rep. 900; Thompson v. Duncan, 76 
 Ala. 338. 
 
 Where the rights and duties are equal and one Is injured by another It is 
 incumbent upon him to prove that the other was negligent before he can 
 recover therefor, Thus, " foot passengers have equal rights in the streets 
 with those mounted on horseback or driving In carriages. Neither have a 
 priority of right over the other. Both are bound to use reasonable care to 
 avoid collision." Stringer v. Frost, 116 Ind. 477 ; 19 N. E. Eep. 431, citing 
 Belton V. Baxter, 54 N. Y. 245. So, where two persons collide in the 
 street and one is injured it cannot be inferred that the other was negli- 
 gent. See Hazel v. Peoples' Pass. Ry. Co., 132 Pa. St. 96; 18 At. Eep. 
 1116; 25 W. N. C. 345; Piollet v. Simmers, 106 Pa. St. 96; Pittsb. etc. Ey. 
 Co. V. Taylor, 104 Id. 306; North Side Street Ey. Co. ■». Tipplns (Tex. 
 App.) 14 S. W. Eep. 1067; Broschartw. Tuttle, 69 Conn. 1; 21 At. Eep. 925. 
 In England it is a general rule that It is not incumbent upon the plaint- 
 iff to prove that he was free from negligence or was using ordinary care. 
 While this doctrine has been followed in America by a number of cases, 
 
 35 
 
546 NEGLIGENCE. 
 
 harm in such a manner that it might be caused by the de- 
 fendant's negligence ; he must show that it was so caused, 
 a-ud to do this he must prove facts inconsistent with due 
 diligence on the part of the defendant. " Where the evi- 
 dence given is equally consistent with the existence or non- 
 j existence of negligence, it is not competent to the judge to 
 leave the matter to the jury " (r). 
 
 (r) Williams J. In Hammacle v. White 668, 29 L. J. 0. P. 333; Wdkelin V. L. f S. 
 (1862), 11 0. B. N. S. 688, 31 L. J. 0. P. JT. iJ. Co. (1886), 12 App. Oa. il. 
 IW; Cotton v. Wood (1860), 8 C. B. N. S. 
 
 the majority of the cases are to the contrary. In the opinion of the 
 court in the case of Owens v. Bailroad Co. (88 N. C. S06), the authorities 
 are reveiwed and this subject discussed. See Eailroad Co. v. Gladman, 
 15 Wall. 401 ; Indianapolis etc. B. Co. ■». Horst, 93 IT. S. 291. The rule Is 
 stated by the court in Hickley v. Bailroad Co. (120 Mass. 262), as fol- 
 lows : " While, however, the plaintiff is to show that he was in the exer- 
 cise of due care, and that no negligence of his contributed to the injury, 
 this may be shown by proving the facts and circumstances from which it 
 may fairly be inferred, and if all the circumstances under which an acci- 
 dent took place are put in evidence, and upon an examination of them 
 nothing is found in the conduct of the plaintiff to which negligence can 
 be fairly imputed, the mere absence of fault may justify the jury in find- 
 ing due care on his part. See Mayo v. Boston & Maine Bailroad, 104: Mass. 
 137. But, if there Is only a partial disclosure of the facts, and no evi- 
 dence i« offered showing the conduct of the party injured in regard to 
 matters specially requiring care on his part, the data for such an instance 
 is not sufficient. It can only be warranted when circumstances are shown 
 which fairly indicate care or exclude the idea of negligence on his part. 
 Crafts V. Boston, 109 Mass. 519." Followed in Texas & N. O. B. Co. v. 
 Crowder, 63 Tex. 50^. See Barber ». Essex, 27 Vt. 62 ; Eibble v. Starrat, 
 83 Mich. 140; 47 N. W. Bep. 244; Strand v. Chicago & W. M. By, Co., 67 
 Mich. 880; 34 N. W. Bep. 712; Lesaw v. Maine Cent. E. Co., 77 Me. 86; 
 Haws V. Burlington, etc. By. Co., 64 la. 315; Murphy v. Deane, 101 Mass. 
 455; Benson v. Titcomb, 72 Me. 31; McCuUy v. Clarke, 40 Pa. St. 399; 
 Burns v. Chicago etc. B. Co., 69 la. 450; 28 Am. & Bng. B. Cas. 409; 58 
 Am. Bep. 227; Hart v. Hudson Elver Bridge Co., 80 N. Y. 622; Smith v. 
 Boston Gas Co., 129 Mass. 313; Street By. Co. v. Notheniug, 40 Ohio St. 
 376; 19 Am. & Eng. E. Cas. 191; Johnson v. Hudson E. B. Co., 20 N. Y, 
 65; 75 Am. Dec. 875; Tolman v. Syracuse etc. E. Co., 98 N. Y. 198; 23 
 Am. & Eng. B. Cas. 313; 50 Am. Bep. 649; Adams v. Young, 44 Ohio St. 
 80; 58 Am. Bep. 789; Lee v. Troy Cit. Gas Co., 98 N. Y. 115; Cassidy v. . 
 Angel, 12 E. I. 447; 34 Am. Bep. 790; Pennsylvania B. Co. v. Weber, 76 
 
BURDEN OF PliOOF. 547 
 
 Nothing can be inferred, for example, from the bare 
 fact that a foot-passenger is knocked down by a carriage in 
 a place where they have an equal right to be, or by a train 
 at a level crossing (s). Those who pass and repass in fre- 
 quented roads are 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" (t). It cannot be assumed, in 
 the absence of all explanation, that a train ran over a man 
 more than the man ran against the train (m). If the car- 
 riage 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 (v), the plaintiff's 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 speak to the conductor, so that 
 he did not .see her return in time to pull up and avoid 
 mischief. The omnibus was on its right side and going at 
 a moderate pace. Here there was no evidence of negli- 
 gence on the part of the defendant, the owner of the 
 omnibus (cc). His servants, on the plaintiflPs own showing, 
 had not done anything inconsistent with due care. There 
 was no proof that the driver turned round to speak to the 
 conductor otherwise than for a lawful or necessary purpose, 
 or had any reason to apprehend that somebody would run 
 
 (s) Wakelin v. L. ^ S. W. B. Co., last («) See note {»•) above, 
 
 note. W It would be convenient if one 
 
 («) Erie C. J., Cotton-^. fTood, note W- could In these running-down oases on 
 
 (M) Lord Halsbury , 12 App. Oa. at p. land personify the vehicle, like a ship. 
 
 45. ^ 
 
 Pa. St. 157; 18 Am. Kep. 407; Sohum ». Pennsylvania E. Co., 107 Pa, St. 
 8; 52 Am. Kep. 468; Stepp v. Chicago etc. E. Co., 85 Mo. 225; Euffneri;. 
 Cincinnati etc. B. Co., 34 Ohio St. 96; Hinckley v. Cape Cod K. Co., 120 
 Mass. 257. 
 
548 NEGLIGEKCE. 
 
 under the horses' feet at that particular moment. Again 
 if a horse being ridden (y) or driven (s) in an ordinary 
 manner runs away without apparent cause, and in spite of 
 the rider's or driver's efforts trespasses on the footway and 
 there does damage, this is not evidence of negligence. The 
 plaintiff ought to show positively 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 evidence of negligence would be 
 mere reckless guesswork " (a). 
 
 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 where the 
 defence of contributory negligence is set up. This view 
 seems to be rather prevalent in America (6), but in the 
 present writer's opinion it is unsound. The current of 
 English authority is against it, and it has been distinctly 
 rejected in the House of Lords (c). What we consider to 
 be the true view of contributory negligence will be pre- 
 sently explained. 
 
 Where there is contract or undertaking. This general 
 principle, has to be modified where there is a relation of ^ 
 contract between the parties, and (it should seem) when 
 
 (,y) Hammock v. White (1862), 11 0. B. (a) Llndley J., 6 Q. B. D. at p. IBS. 
 
 N. S. 588, 31 L. J. C. P. 129. (6) B. g. Mmrphy V. Deane, 101 Mass. 
 
 («) Manzoni v. Douglas (1880), 6 Q. B. 455. 
 0. 145, 50 L. J. Q. B. 289, where it was (c) Wahdin v. L. (f S. W. B. Co. (1886), 
 unsuccessluUy attempted to shake the 12 App. Oa. 41, 47, 51, 56 L. J. Q. B. 229, 
 anttaoTity of Sammack v. White. The per Lord Watson and Lord Fitzgerald, 
 cases relied on for that purpose belong 
 to a special class. 
 ^~ _— — — — — , • 
 
 Where there Is contract or undertaking. In Chapman ». New,Haven 
 Bailroad Co. (19 N. Y. 341), it appears that there was a collision between 
 the trains of two railroad companies, by which the plaintiff, a. passenger 
 in one of them, was injured. It was held, that the passenger by the rail- 
 road was not so identified with the proprietors of the train conveying 
 him, or with their servants, as to be responsible for the negligence, and 
 
CONTRACT OR UNDERTAKING. 549 
 
 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 bi'ing me 
 safely to my journey's end, so far as reasonable care and 
 skill could 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 " (d). 
 
 When a railway train runs off the line, or runs into 
 another train, both permanent way and cariiages, 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 negligence (e). 
 
 (d) In other words (to anticipate part (e) Carpue v. Lpndon ^ Brighton B. Co, 
 
 of a special discussion) the obligation (1844), 5 Q. B. 7C7, 751, 13 L. J. Q. B. 138; 
 
 does not become greater if we regard SHnner v. L, B. ^ S. C. M. Co. (1850), 8 
 
 the liability as ex delicto instead of ex Ex. 787. 
 contractu; but neither does it become 
 less. 
 
 that he might recover against the proprietors of another train for 
 injuries sustained for the collision through the negligence although 
 there was such negligence in the management of the train conveying him 
 as would have defeated an action by its owners. See Dyer v. Erie Ey. 
 Co., 71 N. Y. 228; Kansas City R. et6. Co. ■». Stoner, 49 Fed. Eep. 209; 
 4. U. S. App. 109; IC. C. A. 231; Transfer Co. v. Kelly, 36 Ohio St. 86; 
 "Wabash, St. L. &P. Ry. Co. v. Shacklet, 105 111. 364; Danville etp. Co. v. 
 Stewart, 2 Mete. (Ey.) 119; Louisville etc. R. Co. v. Case, 9 Bush, 
 728; Cuddy v. Horn, 46 Mich. 696; State v. ^Boston & M. E. Co., 80 Me. 
 430; 15 At. Eep. 36'; Holzab v. Railroad C6., 38 La. An. 185; 68 Am. 
 Eep. 177. 
 
 " There is no distinction in principle whether the passenger be on a 
 public conveyance like a railroad train or an omnibus, or be on a hack 
 hired from a public stand in the street for a drive. Those on a hack do 
 not become responsible for the negligence of the driver if they exercised 
 no control over him further than to indicate the route they wish to 
 travel or the places to which they wish to go." Little v. Hackett, 116 
 U. S. 379. See New York etc. R. Co. v. Steinbrenner, 47 N. J. L. 161. 
 
550 NEGLIGENCE. 
 
 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 competent 
 person is exposed to) would of itself be no evidence of 
 neffliffence. We shall see later that, 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 
 presumption of negligence. This is said without prejudice 
 to the yet stricter rule of liability that holds in certain 
 cases. 
 
 Thiags within defendant's control. .Again there is a 
 presumption of- negligence when the cause of the mischief 
 was apparently under the control of the defendant or his 
 servants. The rule was declared by the Exchequer Cham- 
 ber in 1865 {f), in these terms: ^- 
 
 " There must be reasonable evidence of negligence, 
 " But where the thing is shown to be under the manage- 
 ment of the defendant or his servants, and the accident is 
 such as in the ordinary course of things does not happen 
 
 {/) Scott V. London Dock Co., 3 H. & 0. 596, 34 L. J. Ex.220. 
 
 Things within defendant's control. The limited number of American 
 cases oD this subject support the statement of the text. Thus, in 
 Treadwell v. Whittier (80 Cal. 574; 19 N. E., Kep. 331), it was 
 held, that a plaintiff injured through the fall of a hydraulic elevator 
 operated by the defendants, in which he was carried as a passenger, 
 need only prove that he Sustained injury by the breaking of the machinery 
 by wMch he was carried, and that such machinery was under the control 
 and management of the defendants, in order to make a case raising a 
 presumption of negligence on the part of the defendants. See Dehring 
 V. Comstock, 78 Mich. 153; Gardner v. Bennett, 38 N. T. 197; Blake v. 
 Ferris, 5 N. Y. 48; Kelly v. Mayor, 11 Id. 432; Vincent v. Cook, 4 Hun, 
 318 ; Kobinson v. N. Y. Cent. etc. R. Co., 65 Barb. 155. 
 
JUDGE AND JUKY. 551 
 
 if those who have the management use proper care, it 
 affords reasonable evidence, in the absence of explanation 
 by the defendants, that the accident arose from want of 
 care." 
 
 Therefore if I am lawfully and as of right (gr) passing 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 {h). 
 
 Common course of affairs judicially noticed. The 
 
 court will take judicial notice of what happens in the ordi- 
 nary course of things, at all events to the extent of using 
 their knowledge of the common affairs 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 sufficient in law, question is for jury. 
 
 When we have once got something more than an ambi- 
 guously balanced state of facts; when the evidence, if 
 
 •\ 
 
 ig) That Is not merely by the defend- ment was delivered, nor does the pre- 
 
 ant's licence, as will be explained later, else ground of dissent appear. 
 
 (ft) 3 H. & 0. 596, Crorapton, Byles, if,) Crafter v. Metrop. B. Co. (1866), L. 
 
 Blackburn, Keating, JJ., diss. Erie C. J. E. 1 0. P. 300, 35 L. J. 0. P. 132. 
 
 and Mellor J. ; but no dissenting judg- / 
 
 Common course of afEairs judicially noticed. In the case of Harris 
 V. Cameron (81 Wis. 239; 51 N. W. Kep. 437J, where the facts, in sub- 
 stance, were that a father had purchased for his eleven year old son, an 
 air gun, intended and commonly used as a toy and play-thing but by the 
 careless use of which by another boy, to whom the son had loaned it, 
 the eye of a third boy was destroyed. The court sai^: "This court can 
 take judicial knowledge of the nature and use of this air gun as it can 
 of 'beer' (Briffitt v. State, 58 Wis. 39; 16 N. W. Rep. 39); or of 'gas' 
 (.Shepherd v. Gas-Light Co., 6 Wis. 539) ; or of an express or freight 
 'car' (Nichols v. State, 68 Wis. 416; 32 N. W."Rep. 543)." 
 
552 NEGLIGENCE. 
 
 believed, is less consistent with diligence than with negli- 
 gence on the defendant's part, or shows the non-perform- 
 ance of a specific positive duty laid on him by st,atute, 
 
 On evidence sufiBoient in law, question for the jury. The rule stated 
 in the test is recognized in America. See Cumberland B. Co. v. Mau- 
 gans, 61 Md. 63; Lasky v. Canadian P. Ry. Co., 83 Me. 461; 22 At. Rep. 
 368; C. B. U. P. R. Co. v. Hotham, 22 Kan. 41. The classification of the 
 cases within the province of the jury announced by editors Russell and 
 Minor (16 Am. & Bng. Eno. of Law, 466), is : " 1. When the facts which, 
 if true, would constitute evidence of negligence, are controverted. 2. 
 When such facts are not disputed, but there may be a fair difference of 
 opinion as to whether the inference of negligence should be drawn. 3. 
 When the facts are in dispute and the inferences to be drawn therefrom 
 are doubtful." See Pittsburg etc. R. R. Co. u. Andrews, 39 Md. 444; 
 Brahm v. Schwartz (Pa.), 18 At. Rep. 643; Maher v. Manhattan Ry. Co., 
 
 53 Hun, 610; 6 N. Y. S. Rep. 309; Richard v. Schleusner, 41 Minn. 49; 42 
 N. W. Rep. 599; Richmond & D. R. R. Co. v. Howard, 79 Ga. 44; Fiske 
 ». Forsyth Dyeing Co., 57 Conn. 118; G. C. & S. F. Ry. Co. v. Greenlee, 70 
 Tex. 633; Needham v. L. & N. R. Co., 85 Ky. 423; Ilwaco Ry. & Nav. Co. 
 V. Hedrick, 1 Wash. St. 446; 25 Pac. Rep. 335; Quirk v. Holt, 99 Mass. 
 164; Johnson ». Bruner, 61 Pa. St. 58; Bait. & O. B. Co. v. Boteler, 88 
 Md. 568; Kansas P. Ry. Co. v. Ricliardson, 25 Kan. 391; McCready 
 ». South Car. R. R. Co., 2 Strobh. 356 ; Augusta & K. R. Co. v. Killian, 
 79 Ga. 234; 4 S. E. Rep. 165; Nugent v. Boston, C. & M. R. Corp., 80 Me. 
 62; 12 At. Rep. 797 ; Louisville &N. R. Co. v. Mitchel, 87 Ky. 327; 8 S. W. 
 Rep. 706; Chautauqua Lake Ice Co. v. McLuckey (Pa.), 11 At. Rep. 616; 
 Branham v. Central Railroad, 78 Ga. 35; IS. E. Rep. 274; New York and 
 C. M. S. &Co. V. Rogers, 11 Colo. 6; 16 Pac. 719; Abel v. President, etc. 
 Co,, 103 N. Y. 581; 67 Am. Rep. 773; Morse v. Belfast, 77 Me. 44; Lesaw 
 V. Maine Cent. R. Co., Id. 85; Dexter v. McCready, 54 Conn. 171 ; Stoker 
 V. City of Minneapolis, 32 Minn. 478 ; Colorado Cent. R. Co. v. Martin, 
 7 Colo. 592; Fassett v. Roxbury, 55 Vt. 562; Ruland v. South New- 
 market, 69 N. H. 291; Village of Jefferson v. ChsSpmsm, 127 111. 437; 20 N. 
 E. Rep. 83; Ravencraft v. Missouri Pac. Ry. Co., 27 Mo. App, 617; 
 Dealey v. MuUer,' 149 Mass. 432; 21 N. E. Rep. 763; City of Champaign 
 V. Jones, 132 111. 304; 23 N. E. Rep. 1125; Frankord & B. T. Co. v. Phila. 
 & T. R. Co., 64 Pa. St. 345; Texas & P. Ry. Co. v. Murphy, 46 Tex. 366; 
 Sloan o. Centrallowa R. Co., 62 la. 728; 11 Am. & Eng. R. Cas. 145; 
 Griffin v. Auburn, 58 N. H. 121; Texas etc. R. Co. v. Levi, 59 Tex. 674; 
 13 Am. & Eng. R. Cas. 464; White v. Missouri Pac. R. Co., 31 Kan. 280; 
 13 Am. & Eng. R. Cas. 473; Hathaway v. East Tennessee, etc. R. Co., 
 29 Fed. Rep. 489; Orange etc. R. Co. v. Ward, 47 N. J. L. 560; Tyler v. 
 New York etc. R. Co., 137 Mass. 238; 19 Am. & Eng. R. Cas. 296; 
 Grabel v. Wapello Coal Co., 30 W. Va. 228 ; Ferry v. Manhattan P. Co., 
 
 54 N. Y. Superior Ct. 825; Drevis v. Woods, 71 Wis. 329; Baldwin v. St. 
 
RAILWAY CASES : JUDGE AND JURY, 553 
 
 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 (k). It is true that the rules 
 as tg. remoteness of damage set some bounds to the con- 
 nexion of the defendant's negligence with the plaintiff's 
 loss {I). But even in this respect considerable latitude 
 has been allowed (m). Railway accidents have for the last 
 thirty years or more been the most frequent occasions of 
 defining, or attempting to define, the frontier between the 
 province of the jury and that of the Court. 
 
 Recent railway cases on level crossings and " invita- 
 tion to alight." Two considerable and'well marked groups 
 of cases stand out from the rest. One set may be broadly 
 described as level crossing cases, and culminated in Worth 
 Eastern Railway Company v. Wanless, decided by the 
 House of Lords in 1874 («); the, other may still more 
 roughly (but in a manner which readers familiar with the 
 reports will at once understand) be called " invitation to ■ 
 alight" cases. These are now governed by Bridges v. 
 North London Railway Company (o), 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 supposed to be impugned. This was done in Metro- 
 politan Railway Company v. Jackson (p). 
 
 (,1c) Thi8 Is well put In the juagment 38. Cp. per Lord Halsbury, 12 App. Ca. 
 
 in ATCullyv. Clark (Pennsylyania, 1861), at p. iS. 
 
 Bigelow L. C. 559. C») L- E. 7 H. L. 12, 43 L. J. Q. B. 185. 
 
 (I) Metrop. R. Co. v. Jackaon (1877), 3 (o) L. E. 7 H. L. 213, 43 L. J. Q. B. 161 
 
 App. Ca. 193, 47 L. J. O. P. 303. (1873-1). 
 
 (m) See WilliamsY. G. W. B. Co. (187i), ip) 3 App. Oa. 193, 47 L. J. 0. P. 303 
 
 X. E. i Ex. 157, 43 L. J. Ex. 105, mpra, p. (1877). 
 
 Louis etc. K. Co., 72 la. 45; Faris v. Hoberg (Ind.), 33 N. E. Rep. 1028; 
 Cincinnati etc. By. Co. v. Grames (Ind. App.), 34 N. E.Bep. 613. 
 
554 NEGLIGENCE. 
 
 Explanation in Metr. R. Co. v. Jackson. " The judge 
 has a certain duty to discharge, and the jurors have another 
 and a different duty. The judge has to say whether any 
 facts have been established by evidence from which negli- 
 gence »iay 6e reasonably inferred; the jurors have to say 
 whether, from those facts, when submitted to them, negli- 
 gence ought to be 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 distinct. 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 what- 
 ever (2). 
 
 " 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 completely to sever the 
 law from the facts. 
 
 " But I think it has always been considered a question of 
 law to be determined by the judge, subject, of course, to 
 review, whether there is evidence which, if it is believed, 
 and the counter evidence, if any, not believed, would estab- 
 lish 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 given are such that from 
 them a farther inference of fact may legitimately be drawn, 
 it is for the jury to say whether that inference is to be drawn 
 or not. But it is for the judge to determine, subject to re- 
 view, as a matter of law, whether from those facts that 
 farther inference may legitimately be drawn " (r). 
 
 (2) Lord Cairns, at p. 197. (r) Lord Blackburn at p. 207. Cp. 
 
RAILWAY CASES. 555 
 
 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 defendants ; not that there 
 was no proof of the defendants having been negligent at 
 all, for there was evidence which, if believed, showed mis- 
 management, and would have been quite enough to fix on 
 the defendant company liability to make good any damage 
 distinctly attributable to such mismanagement as its 
 "natural and probable" consequence (s). As between 
 the plaintiff and the defendant, however, evidence of 
 negligence which cannot be reasonably deemed the cause 
 of his injury is plainly the same thing as a total want 
 of evidence. Any one can see that a man whose com- 
 plaint is that his thumb was crushed in the door of a 
 railway carriage would waste his trouble in proving (for 
 example) that the train had not a head-light. The House 
 of Lords determined, after no small difference of learned 
 opinions below, that it availed him nothing to prove over- 
 crowding 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 (ss). 
 
 The "level crossing" type of cases. In the "level 
 crossing " group of cases we have some one crossing a rail- 
 way at a place made and provided by the company for that 
 
 nyder v. Wombwdl (1868), in Ex. Cb., L. (»«) Cp. Founder v. N. E. li. Co., '93, 1 
 
 K. i Ex. 32, 38 L. J. Ex. 8, which Lord Q. B. 383 (plaintiff assaulted by persons 
 
 Blackburn goes on to cite with apijroval. who had crowded in) . 
 («) See pp. 33, 36, above. 
 
 Railroad crossings. " It is doubtless a rule of law tbat a person 
 approaching a railroad crossing is bound, in so doing, to exercise such 
 care, caution and circumspection to foresee danger and avoid injury as 
 ordinary prudence would require, having in view all the bnovyn dangers 
 of the situation; but precisely what such requirements would be must 
 manifestly differ with the ever-varying circumstances under which such 
 approach may be made. Ordinarily, of course, the diligent use of the 
 senses of sight and hearing is the most obvious and practicable means 
 of avoiding injury in such cases ; bat occasions may, and often do, arise 
 
556 NEGLIGENCE. 
 
 purpose, and where the company is under the statutory 
 duty of observing certain precautions. The party assumes 
 that the line is clear; his assumption is erroneous, and he 
 
 where the use of the senses would be unavailable, or where their non- 
 use may be excused. The view may be obstructed by intervening 
 objects, or by the darkness of the night. Other and louder noises, as 
 is often the case in a city, may confuse the sense of hearing, and ren- 
 der its use impracticable. 
 
 The railway company, by its flagman or other agent or agency, may 
 put the person off his guard and induce him to cross the track without 
 Presorting to the usual^precantions. 
 
 The duty may be more or less varied by the age, degree of intelligence, 
 and mental capacity of the party and by a variety of other circumstances 
 by which he might be surrounded." Terre Haute & I. E. Co. v. Voel- 
 ker, 129 ni. 640; 22 N. E. Eep. 23. See Smedis v. Brooklyn etc. E. Co., 
 88 N. Y. 13; 8 Am. & Eng. E. Cas. 445; Guggenheim v. Lake Shore etc. 
 E. Co., 67 Mich. 488; 22 Am. & Eng. E. Cas. 546; Geveke v. Grand 
 Eapids etc. E. Co., 57 Mich. 689 ; 22 Am. & Eng. E Cas. 651 ; Louisville 
 etc. E. Co. V. Schmidt, 81 Ind. 264; 8 Am. & Eng. E. Cas. 248; Pittsburg 
 etc. E. Co. V. Martin, 82 Ind. 476; 8 Am. & Eng. R. Cas. 253; KeUey v. 
 St. Paul etc. E. Co., 29 Minn. 1; 6 Am. & Eng. E. Cas. 93; O'Mara ». 
 Hudson Elver E. Co., 38 N. Y. 445; Baltimore etc. E. Co. v. Fitzpatrick, 
 35 Ind. 32; Pennsylvania B. Co. v. Killips, 88 Fa. St. 413; Eeading etc. 
 E. Co. V. Eichtie, 102 Pa. St. 425; 19 Am. & Eng. E. Cas. 267; Marcott 
 V. Marquette etc. E. Co., 29 N. Y. 316; Salter v. Utica etc. E. Co., 88 N. 
 Y. 42; 8 Am. & Eng. E. Cas. 437; Continental Imp. Co. v. Stead, 95 U. S. 
 161; Erlck v. St. Louis etc. E. Co., 75 Mo. 595; 8 Am. &Eng. E. Cas. 
 280, 288; St. Louis etc. E. Co. v. Mathias, 60 Ind. 65; East Tennessee 
 E. Co. V. White, 5 Lea, 540; 8 Am. & Eng. E. Cas. 65; Norton v. Eastern 
 E. Co., 113 Mass. 366; Sanborn o. Detroit, etc. E. Co., 91 Mich. 538; 50 
 Am. & Eng. E. Cas. 114; Pollock v. Eastern E. Co., 124 Mass. 158; Parvis 
 V. Phila. W. & B. E. Co. (Del.), 17 At. Rep. 706. 
 
 " Again, failure to look and listen for an approaching train, though 
 such failure may contribute to the Injury, can not, under all cir- 
 cumstances, be regarded as negligence. * * » \7hen, therefore, a 
 person about to cross a railroad track under a given state of circum- 
 stances, exercises that degree and amount of care which prudent persons 
 usually exercise under like circumstances, he is without fault. In other 
 words, when the circumstances are such that prudent persons would not 
 ordinarily look or listen for an approaching train, there is no negligence In 
 Omitting to look or listen. 
 
 If this be correct, it is plain, as a general rule, that -vyhether con- 
 tributory negligence existed or not, is a mixed question of law and facts ; 
 that is to say, a fact for the jury to find from such testimony as the law 
 
RAILWAY CASES. 557 
 
 is run down by a passing train. Here the company has 
 not entered into any contract with him ; and he must prove 
 either that the company did something which would lead a 
 reasonable man to assume that the line was clear for cross- 
 ing (f), or that there was something in their arrangements 
 which made it impracticable or unreasonably difficult to 
 ascertain whether the line was clear or not. Proof of 
 negligence in the air, so to speak, will not do. "Mere 
 allegation or proof that the company were guilty 
 of negligence is altogether i^relvant ; they might be guilty 
 of many negligent acts or omissions, which might 
 possibly have occasioned injury to somebody, but had 
 no connexion whatever with the injury for which redress 
 is sought, and therefore the plaintiff must allege and 
 prove, not merely that they were negligent, but that their 
 negligence caused or materially contributed to the in- 
 jury" (m). What may reasonably be held to amount to 
 such proof cannot be laid down in general terms. " You 
 
 (0 As in Wanless's ease, L. K. 7 H. L. ought not to have been, so that the 
 12, 43 L. J. Q. B. 18S, where the gates (in- plaintliT was thrown off his guard, 
 tended primarily lor the protection of («) Lord Watson, Wakelin v. L. ^ S. 
 carriage traffic) were left open when they Jf. E. Co. (1S86), 12 App. Ca. 41, 47, 66 L. 
 
 J. Q. B. 229. 
 
 regards competent to prove it, and to be found in accordance with such 
 rules as the court njay give to the jury for their guidance." 
 
 Cleveland etc. R. Co. a. Crawford, 24 Ohio St. 631 ; iS Am. Eep. 633. 
 See Cincinnati, etc. E. Co. ». Howard, 124 Ind. 280; Schofleld v. Bailroad 
 Co., 114 U. S. 615 ; 19 Am. & Bng. B. Cas. 353 ; Stackus v. N. Y. Cent. etc. 
 R. Co., 79 N. Y. 464; Petty v. Hannibal etc. R. Co., 88 Mo. 306; 28 Am. & 
 Eng. B. Cas. 618; Belsiegel v. N. Y. etc. R.!Co., 34 N. Y. 622; Greia,vy v. 
 Long Island R. Co., 101 N. Y. 419; 24 Am. & Eng. B. Cas. 473; Punston 
 V. Chicago etc. R. Co., 61 la. 452; 14 Am. & Eng. E. Cas. 640; Nehrbast). 
 Central Pac. B. Co., 62 Cal. 320; 14 Am. & Eng. B. Cas. 670; Pennsylvania 
 B. Co. V. Garvey, 108 Pa. St. 369; Drain v. St. Louis etc. B. Co., 86 Mo. 
 574; Loucks v. Chicago etc. B. Co., 31 Minn. 526 ; 19 Am. & Eng. E. Cas. 
 305; Johnson v. Missouri Pac. E. Co., 56 Mich. 1; Scott v. Wilmington 
 etc. E. Co., 96 N. C. 428; 2 S. E. Bep. 151; Ferguson v. Wisconsin, etc. 
 R. Co., 63 "Wis. 145; 19 Am. & Eng. R. Cas. 285; Orange etc. H. E. Co. 
 V. Ward, 47 N. J. L. 560; Copleys. New Haven R. Co., 136 Mass. 6; 19 
 Am. & Eng. E. Cas. 372; Leavitt v. Chicago etc. E. Co., 64 Wis. 223. 
 
558 MEGLIGEXCE. 
 
 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 " (x). 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) (y), the tendency of modern authority is to leave the 
 matter very much at large for the jury. In Dublin, 
 Wicklow and Wexford Railway Co. v. Slattery (2), 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 posi- 
 tively testified that the engine did whistle. Three swore 
 
 [x) Bov^en L. J., Davey v. L. tf S. W. stance of daylight seems to distingaish 
 
 a. Co. (1S83), 12 Q. B. Div. at p. 76. this from Slattery's case (next note). 
 
 (,y) Davey v. i. f S. W. R. Co. (1883), («) 3 App. Ca. 1155. Nearly all the 
 
 12 Q. B. Div. 70, 53 L. J. Q. B. 58; a case modern cases on " evidence of negli- 
 
 which perhaps belongs properly to the gence" were cited in the argument (p. 
 
 head of contributory negligence,of which 1161). Observe that the question of the 
 
 more presently. Only the ciroum- verdict being against the weight of 
 
 evidence was not open (p. 1162). 
 
 Invitation to alight. It is a general rule that where a train overshoots 
 or stops short of the platform at a station, the railroad company is boand 
 to either back the train to the usual place of alighting, or warn the pas- 
 sengers of the special dangers Incident to the unusual place, and assist the 
 passenger to alight. See Memphis etc. K. Co. v. Whitfield, 44 Miss. 
 460; 7 Am. Eep. 699; Pennsylvania R. Co. v. Aspell, 23 Pa. St. 149; Hart- 
 wig V. Chicago & N. W. By. Co., 49 Wis. 358; 1 Am. & Eng. R. Cas. 65; 
 Columbus etc. E. Co. v. Farrell, 31 Ind. 408; McDonald v. Chicago & N. 
 W. R. Co., 26 la. 124; Delamatyr v. Railroad Co., 59 N. Y. 351. 
 
 Thus, in Foss v. Boston & M. R. Co., 47 Am. & Eng. R. Cas. 566, it was 
 held that a passenger who has been carried beyond the station platform, 
 has a right to rely on the assistance offered by the conductor and brake- 
 man, to aid her in getting off the train, and if, by reason of the flustered 
 state of her mind and the fear of being carried beyond her destination, 
 she does not notice the distance of the car-step from the ground, and they 
 fail to assist her from the car without inipry, it is the fault of the carrier. 
 The English cases seem to not carry the doctrine to this extreme and 
 many of the American cases impose greater duties upon the passenger. 
 See St. Louis, etc. R. Co. v. Cantrell, 37 Ark. 619; 40 Am. Rep. 105; 
 Commonwealth v. Boston & M. R. Co., 129 Mass. 500; 37 Am. Eep. 382. 
 
EAILWAY CASES. 559 
 
 that they did not hear it. A jury having found for the 
 plaintiflF, it was held by the majority of the House of Lords 
 that the Court could not enter a verdict for the defendants, 
 although they did not conceal their opinion that the actual 
 verdict was a perverse one (a). 
 
 The "invitation to alight" group. In the other 
 group, which we have called " invitation to alight" cases, 
 the nature of the facts is, if anything, less favourable to 
 the defendant. A tfain stopping at a station overshoots 
 the platform so that the front carriages stop at a place 
 more or less inconvenient, or it may be dangerous, for per- 
 sons of ordinary bodily ability to alight. A passenger 
 bound for that station, or otherwise minded to alight, is 
 unaware (as by reason of darkness, or the like, he well may 
 be) of the inconvenience of the place (6), or, else is aware 
 of it, but takes the attendant risk rather than be carried 
 beyond his destination. In either case he gets out as best 
 he can, and, whether through false security, or in spite of 
 such caution as he can use, has a fall or is otherwise hurt. 
 Here the passenger is entitled by his contract with the 
 company to reasonable accommodation, and they ought to 
 give him facilities for alighting in a reasonably convenient 
 manner. Overshooting the platform is not of itself negli- 
 gence, for that can be set right by backing the train (c). 
 It is a question of fact whether under the particular cir- 
 cumstances the company's servants were reasonably dili- 
 gent for the accommodation of the passengers (d), and 
 whether the passenger, if he alighted knowing the nature 
 
 (a) The majority consisted of Lord does not seem consistent with this decl- 
 
 Calrns (who thought the verdict conld sion ; there was difference of opinion In 
 
 not have stood if the accident had hap- that case also. 
 
 pened by daylight). Lord Penzance, (6) CocWc v. .S. JB. iJ. Co., (1872), Ex. 
 
 Lord O'Hagan, Lord Selborne, and Lord Ch. L. R. 7 C. P. 321, 41 L. J. C. P. 140. 
 
 Gordon; the minority of LordHather- (c) Siner v. G. W. R. Co. (1869), Ex. 
 
 ley. Lord Coleridge, and Lord Black- Ch. L. E. 4 Ex. 117, 38 L. J. Ex. 67. 
 
 bum. Ellis Y. 6. W. B. Co. (Ex. Oh. (d) JBridges v. N. London Ji. Co., -p. 39S, 
 
 1874), L. E. 9 O. P. 551, 43 L. J. C. P. 304, above. 
 
560 NEGLIGENCE. 
 
 of the place, did so under a reasonable apprehension that 
 he must alight there or not at all (e). 
 
 Complications with contributory negligence, etc. All 
 
 these cases are apt to be complicated with issues of con- 
 tributory negligence and other similar though not identical 
 questions. We shall advert to these presently. It will be 
 convenient now to take a case outside these particular 
 types, and free from their complications, in which the dif- 
 ficulty of deciding what is "evidence of negligence" is 
 illustrated. 
 
 Other illustrations of "evidence of negligence " : Smith 
 V. Li. & S. W. R. Co. Such an one is /Smith v. London 
 and South Western Mailway Company (f). The facts 
 are, in this country and climate, of an exceptional 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 thd judgments in both 
 the Common Pleas and the Exchequer Chamber to be nearly 
 approached. The action was in respect of property burnt 
 
 (c) Eobson V. y. B. R. Co., 2 Q. B. Div. in Ex. Ch. 6 C. P. 14, 40 L. J. C. P. 21 
 
 85, 48 L. J. Q. B. 50 ; Rose v. N. E. R. Co., (1870). The accident took place in the 
 
 2 Ex. Div. 248, 46 L. J. Ex. 374: (both in extraordinaiilji warm and dry sammer 
 
 187(i). of 1888. ' 
 
 (/) L. E. 5 C. P. 98, 39 L. J. C. P. 68, 
 
 Evidence ol negligence. In the case of Larking. O'Neill (119 N. Y 
 225), the tacts were that an action was brought to recover damages for 
 injuries alleged to have been caused by defendant's negligence, where it 
 appeared that the plaintiff, a woman thirty-five years old, had been in the 
 habit for ten years, of making purchases at defendant's dry-goods store ; 
 and that she fell while descending a broad carpeted staircase in the store. 
 It was held that the defendant was not liable affd the court said: "The 
 line must be drawn in this case between suggestions and-possible pre- 
 cautions, and evidence of actual negligence, such as ought reasonably 
 and properly be left to a jury. It is diflBcult, in some cases, to determine 
 where the line is to be drawn, but here I have no hesitation in saying 
 that there was no evidence of negligence which could be properly left to 
 the jury." 
 
EVIDENCE. 561 
 
 by fire, communicated from sparks which had escaped from 
 the defendant company's locomotives. The material ele- 
 ments of fact were the following. 
 
 Hot dry weather had prevailed for some time, and at 
 the time of the accident a strong S. E. wind was blowing. 
 
 About a fortnight earlier grass had been cut by the 
 defendants' servants on the banks adjoining the line, and 
 the boundary hedge trimmed, and the cuttings and trim-- 
 mings had, on the morning of the fire {g), been raked into 
 heaps, and lay along the bank inside the hedge. These 
 cuttings and trimmings were, by reason of the state of the 
 weather, very dry and inflammable. 
 
 Next the hedge there was a stubble field; beyond that 
 a road ; on the other side of the road a cottage belonging 
 to the plaintiff, 200 yards in all distant from the railway. 
 
 Two trains passed, and immediately or shortly after- 
 wards the strip of grass between the railroad and the 
 hedge was seen to be on fire. Notwithstanding all efforts 
 
 ig) See statement of the facts in tbe report In Ex. Cb. L. B. 6 C. P. at p. 15. 
 
 Carrying flre in locomotives. The doctrine is now well settled In the 
 TTnited States and in England, that when the legislature has authorized 
 the use of flre in locomotives, and every reasonable precaution is 
 observed to prevent injury, the company will not be liable for damage by 
 flre unless guilty of negligelice. By the current of authorities it is the 
 duty of railroad companies to use none but locomotive engines of the 
 safest modem construction, supplied with all the best approved appli- 
 ances to prevent the escape of sparks therefroin endangering the 
 property of others, and operated with due care. Smith v. New York etc. 
 B. Co., 19 N. Y. 127; Field v. New York Cent. E. Co., 32 N. T. 346; 
 Bedell p. Long Island R. K. Co., 44 N. Y. 369; Flinn v. New York etc. R. 
 Co.^ 67 Hun, 361; 22 N. Y. S. Rep. 473; Edrington v. Louisville, etc. By. 
 Co., 41 La. An. 96; 6 So. Rep. 19; Hagan v. Chicago, etc. Co., 86 Mich. 
 613; 49 N. W. Bep. 609; Hockstedler v. Dubuque & S. C. By. Co. (la.), 
 56 N. W. Sep. 74; Smith v. Chicago, etc. By. Co. (S. D.;, 65 N. W. Bep. 
 717; Loudy ». Clarke, 45 Minn. 477; 48 N. W. Bep. 22; Jacksonville, etc. 
 By. Co. V. Peninsular Land etc. Co., 27 Fla. 157; 9 So, Bep. 661; Bost 
 ». Missouri P. By. Co., 76 Tex. 168; 12 S. W. Bep. 1131; Missouri P. By. 
 Co. V. Platzer, 73 Tex. 117; 11 S. W. Bep. 160; Bullis v. Chicago, etc. By. 
 Co., 76 la. 680; Eddy v. Lafayette, 49 Fed. Rep. 807; 4 U, S. App. 247; 
 
 36 
 
562 NEGLIGENCE. 
 
 made to subdue it, the fire burnt through the hedge, 
 spread over the stubble field, crossed the road, and con- 
 sumed the plainliif's cottage. 
 
 There was no evidence that the railway engines were 
 improperly constructed or worked with reference to the 
 escape of sparks, and no direct evidence that the fire came 
 from one of them. 
 
 The jury^ found for the plaintiff; and it was held 
 (though with some difficulty) {h) that they were warranted 
 in so finding on the ground that the defendants were negli- 
 gent, having regard to the prevailing weather, in leaving 
 the dry trimmings in such a place and for so long a time. 
 The risk, though unusual, was apparent, and the company 
 was bound to be careful in proportion. " The more likely 
 
 (7i) Brett J. dissented in the Common the particular damage in question could 
 Fleas, and Blackbnrn J. expressed some not have reasonably been anticipated, 
 doubt in the I!x. Oh. on the groand that 
 
 1 C. C. A. 441;' Kelsey v. Chicago & N. W. Ry. Co. (S. J).), 46 
 N. W. Eep. 204; Burroughs v. Housatonic R. Co., 15 Conn. 124; 
 Huyett V. Phila., etc. R. Co.'; 23 Pa. St. 373; Diamond v. Northern 
 Pac. E. Co., 6 Mont. 580; 29 Am. & Eng. R. Cas. 117; Texas etc. 
 R. Co. V. Medaris, 64 Tex. 92; 29 Am. & Eng. R. Cas. 159; 
 Burlington etc. R. Co. ■». Westover, 4 Neb 268; Texas, etc. 
 R. Co. V. Levi, 59 Tex. 674; 13 Am. & Eng. R. Cas. 464; Brown 
 V. Atlanta, etc. R. Co., 19 S. C. 39; 13 Am. & Eng. R. Cas. 479; 
 Hofe V. West Jersey R. Co., 45 N. J. L. 201; 13 Am. & Eng. R. Cas, 476; 
 Anderson v. Cape Fear Steamboat Co., 64 N. C. 399; Case v. North Cent. 
 R. Co., 5"4 Barb. 644 ; Chicago, etc., R. Co. v. Quaintance, 68 111. 889 ; White 
 V. Chicago, M. & St. P. Ry. Co. (S. D), 47 N. W. Rep. 146; Jackson ■». 
 Chicago & N. W. R. Co., 31 la. 176; 7 Am. Rep. 120; Small v. Chicago 
 etc. E. Co., 60 la. 338; Webb v. Rome, etc. R. Co., 49 N. T. 420; Leaven- 
 worth, etc. R. Co. 0. Cook, 18 Kan. 261 ; Home Ins. Co. v. Pennsylvania 
 R. Co., 11 Hun, 182; Phila. etc. R. Co. ■;;. Yerger, 73 Pa. St. 121; 2 Am.& 
 Eng. R. Cas. 271; Indianapolis etc. R. Co. v. Paramore, 31 Ind. 143; 
 Morris, etc., R. Co. ■». State, 36 N. J. 553; McHugh v. Chicago, etc., R. 
 Co., 41 Wis. 78; Woodson v. Milwaukee, etc., E. Co., 21 Minn. 60; 
 Atchison, etc., R. Co. v. Riggs, 31 Kan. 622 ; Kansas, etc. R. Co. v. Butts, 
 7 Kan. 308; Eood v. N. Y. & E. E. Co., 18 Barb. 80; Eeading E. Co. v. 
 Yeiser, 8 Pa. St. 366; Sheldon u. Hudson Eiver E. Co., 14 N. Y. 218; Bait., 
 etc., E. Co. V. Woodruff, 4 Md. 242; Flynn v. Railroad Co., 40 Cal. 14; 
 Jefferis v. Phila. etc., R. Co., 3 Houst. 447. 
 
EVIDENCE. 563 
 
 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 " (^). Thus there was evidence 
 enough (though it seems only just enough) to be left for 
 the jury .to decide upon. Special danger was apparent, 
 and it would have been easy to use appropriate caution. 
 On the other hand the happening of an accident in extra- 
 ordinary circumstances, from a cause not appax'ent, and in 
 a manner that could not have been prevented by any 
 ordinary measures o'f precaution, is not of itself any 
 evidence of negligence (k). And a staircase which has. 
 been used by many thousand persons without accident 
 cannot be pronounced dangerous and defective merely^ 
 because the plaintiff has slipped on it, and somebody can 
 be found to suggest improvements (I). 
 
 No precise general rule can be given. Illustrations 
 might be largely multiplied, and may be found in. abun- 
 dance in Mr. Horace Smith's, Mr. Campbell's, or Mr. 
 Seven's monograph, or by means of the citations and dis- 
 cussions in the leading cases themselves. Enough has been 
 said to show that by the nature of the problem no general 
 formula can be laid down except in some such purposely 
 vague terms as were used in Scott v, London Dock 
 Co. (m). 
 
 Due care varies as apparent risk: application of this 
 to accidents through personal infirmity. We have said 
 that the amount of caution recfuired of a citizen in his 
 
 (j) Lush J. in Ex. Ch. L. B. 6 O. P. at of the steps Cthls being the material in 
 
 p. 23. common use, whereof the Court tooJt 
 
 (.k) Blyth T. Birimmgham Waterworks judicial notice '• with the common ex- 
 
 Co. (1856), 11 Ex. 781, 25 L. J. Ex, 212, perience which every one has," per 
 
 supra, p. 42. Wllles J. at p. 303), and it was suggested 
 
 (i) Crafter V. Metrop. B. Co. (1868), L. that load would have been a safer 
 
 E. 1 0. P. 300, 35 L. J. 0. P. 132: tl^e material, 
 plaintiff slipped on the brass "nosing" (m) P. 393, above; 
 
 Degree of care commensurate with apparent risk. While ordinary 
 prudence is required of every one with respect to the safety of others 
 
564 NEOLIGENCE. 
 
 conduct is proportioned to the amount of apparent 
 danger. In estimating the probability of danger to 
 others, we are entitled to assume, in the absence of 
 anything to show the contrary, that they have the 
 full use of common faculties, and are capable of ex- 
 ercising ordinary caution. If a workman throws down a 
 heavy object from a roof or scaffolding "in a country 
 village, where few passengers are," he is free from criminal 
 liability at all events, provided " he calls out to all people 
 to have a care " (n). 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 
 on 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 
 
 (»s) Blackst. Comm. iv. 192. D. 9. 2, whether, on the whole, the work was 
 ad. leg. Aquil. 31. In a civil action it being done with reasonable care, 
 wonld probably be leit to the jury 
 
 and their property, at all times, there may be occasions when more than 
 ordinary prudence is demanded by the apparent risk. The acknowledged 
 indiscretion of children and the infirmity of persons whose disability is 
 apparent is notice to all persons whose duty It is to show them care 
 that a higher degree of care should be exercised towards them than 
 towards persons apparently discreet and sound. In the case of Spokane 
 Truck & Dray Co. v. Hoefer (2 Wash. 46; 25 Pac. Eep. 1072) it was held, 
 that a person who undertakes to hoist a heavy safe from a court, through 
 ■which people are accustomed to pass back and forth, into an upper story 
 of the building, is bound to use such care as the nature of the employ- 
 ment, and the situation and tl^e circumstances surrounding the same, 
 require of a prudent person, experienced and skilled in such or similar 
 work. See St. Iiouis, etc. Ey. Co. v. Freeman, 36 Ark. 41; Clements v. 
 Louisiana Electric Light Co., 44 La. 692; 11 So. Eep. 51; Bricke'tt v. 
 Knickerbocker Ice Co., 110 N. Y. 504; Standard Oil Co. v. Tierney (Ky. 
 App.), 17 S. "W. Rep. 1025; Calvin i;. Peabody, 155 Mass. 104; N. E. Rep. 
 59; Henry ». Klopfer, 147 Pa. Sti 178; 23 At. Eep. 331; 29 W. N. C. 331; 
 Id. 23 At. Rep. 338; 29 W. IS. C. 331; Barnum v. Terpenning, 76 Mich. 
 557; 42 N. W. Rep. 967; Phillips v. Dewald, 79 Ga. 732; Bennett v. New 
 York etc. R. Co., 57 Conn. 426. 
 
EVIDENCE. 565 
 
 run over for want of hearing a shout or a whistle (o), 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 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 blipd man 
 walking 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 live, 
 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 hearing, or a colour- 
 blind one for not perceiving a red flag. The normal meas- 
 ure 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 abnormal infirmity can make a 
 difference only when it is shown that in the particular case 
 it was apparent. 
 
 • 
 
 Distinction where the person acting has notice of 
 special danger to an infirm or helpless person. On the 
 
 other hand it seems clear that greater care is require^ of 
 us when it does appear that we are dealing with persons of 
 less than ordinary faculty. Thus if a man driving sees 
 that a blind man, an aged man, or a cripple is crossing the 
 
 (o) Cp. SIcelion v. L. if N. W. R. Co. accident was wholly due to the man's 
 OSSii, L. E. 2 0. P. 631, 36 L. J. 0. P. 249, own want oi care, 
 decided however on the gronnd that the 
 
 Where the person acting has notice of special danger to an jnflrm 
 person. Supporting tKe text, vide I. & G. N. Ey . Co. u. Smith, 62 Tex. 264 ; 
 Louisville etc. R. Co. v. Sullivan, 81 Ky. 624; 60 Am. Rep. 186; Maloy v. 
 "Wabash, etc. By. Co., 84 Mo. 270. 
 
566 NEGLIGENCE, 
 
 road ahead, he must govern his course and speed accord- 
 ingly. He will not discharge himself, in the event of a 
 mishap, merely by showing that a young and active man 
 with good sight would have come to no harm. In hke 
 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 sup- 
 ported by any distinct authority in our law that I am aware 
 of (p). But they seem to follow from admitted principles, 
 and to throw some light on questions which arise under the 
 head of contributory negligence. 
 
 m. — Gontributory Negligence. 
 
 Actionable negligence must be proximate cause of 
 barm ; where plaintiff's own negligence is immediate 
 cause, no remedy. In order that a man's negligence may 
 entitle another to a remedy against him, that other must 
 have suffered harm whereof this negligence is a proximate 
 cause. Now 'I may be negligent, and my negligence may 
 be the occasion of some one suffering harm, and yet the 
 
 (p) In the United'States there is some: see Wharton, §§ 307, 310; Cooleyon Torts, 
 683; Beven on Negligence, 8. 
 
 Contributory negligence. A learned author has announced the 
 fallowing definltiofl: " Contributory negligence, iifits legal signification, 
 is such an act or omission on the part of a plaintiff, amounting to a want 
 of ordinary care, as, concurring or co-operating with the negligent act of 
 the defendant, is a proximate cause or occasion of the injury complained 
 of. To constitute contributory negligence there must be a want of 
 ordinary care on the part of the plaintiff, and a proximate connection 
 between that and the injury." — Beach on Contrib. Neg. 7. 
 
 "The whole doctrine of contributory negligence is bottomed on the 
 maxim, In jure non remota causa, sed proxima, spectatur." L. R. etc. 
 Ry. V. Haynes, 47 Ark. 602; 1 S. W. Eep. 774. A few cases are Americus, 
 
CONTEIBUTOEY NEGLIGENCE. 567 
 
 immediate cause of the damage may ,be not my want of 
 care but his own. Had I been careful to begin with, he 
 would not have been in danger; but had he, being so put 
 
 etc. K. V. Luctie (Ga.), 13 S. E. Epp. 105; Pfister «. Gerwig, 122 Ind. 
 362; 23 N. E. Rep. 1041; Howards. Kansas City, etc. 11. Co., 41 Kan. 
 407; 21 Pac. Eep. 267; Andrews '». Mason City &Ft. D. Ey. Co., 77 la. 
 609; 42 N. W. Rep. 513; Ridings v. Hannibal & St. Jo. Ry. Co., 33 Mo. 
 App. 535; Inland & Seaboard Coasting Co. v. Folson, 139 U. S. 558; 11 
 S. Ct. Eep. 653; Cornell v. Electric Ey. Co., 82 Mich. 493; 46 N. W. Eep. 
 791; Moore v. Norfolk & W. R. Co., 87 Va. 489; 12 S. E. Eep. 969; 
 LaRiviere b. Pemberton, 46 Minn. 5; 48 N. W. Rep. 406; Hinz v. Starn, 
 46 Hun, 526; Parker v. Georgia P. Ey. Co., 83 Ga. 539; Dun v. Seaboard 
 & R. R. Co., 78 Va. 645; Richmond & D. Ry. Co. v. Yeamans, 86 Va. 
 86fi; 12 S. B. Eep. 946; MoKeller v. Township of Monitor, 78 Mich. 
 485; 44 N. W. Rep. 412; Kentucky Cent. R. Co. v. Thomas, 79 
 Ky. 160; 1 Am. & Bng. R. Cas. 79, 80; 42 Am. Re p. 208: Richmond etc. 
 R. Co. V. Anderson, 31 Gratt. 812; Paducah, etc. R. Co. v. Hoelil, 12 Bush, 
 41 ; Colorado, etc. E. Co. v. Holmes, 5 Colo. 197; 8 Am. & Eng. E. Cas. 
 410; Woods v. Jones, 34 La. An. 1086; 15 Am. Eep. 565; Spencer v. Bait. 
 & O. E. Co., 4 Mackey, 138; 64 Am. Eep. 269, 272; Scheffer v. Eailroad 
 Co., 105 U. S. 249; 8 Am. & Eng. E. Cas. 61; Iron E. Co. v. Mowery, 36 
 Oliio St. 418; 3 Am. & Eng. E. Cas. 361; Stevenson v. Chicago etc. E, 
 Co., 18 Fed. Eep. 493; Linnelian v. Sampson, 126 Mass. 506; 30 Am. Eep 
 692; Indianapolis etc. R. Co. v. Stout, 63 Ind. 143; Mobile, etc. R. Co 
 V. Ashcroft, 48 Ala. 15; Turner v. Buchanan, 82 Ind. 147; 42 Am. Eep 
 485; Wilson v. Northern Pac. R. Co., 26 Minn. 278; 37 Am. Rep. 410 
 Pittsburg, etc. R. Co. v. Rohrman (Pa.), 12 Am. & Eng. E. Cas. 176; 
 Patterson's Ey. Ace. Law, 62 et seq. 
 
 Unless tlie defendant has be6n negligent, there can be no contributory 
 negligence on the part of the plaintiff. So, no matter how negligent the 
 plaintiff may be, he is not guilty of contributory negligence if purposely 
 injured by the defendant. Ruter v. Foy, 46 la. 132; Carter v. Louisville, ' 
 etc. R. Co., 98 Ind. 552; 22 Am. & Eng. R. Cas. 360; Steinmitz ». Kelly, 72 
 Ind. 442; Rl Am. Rep. 170; Patterson's Ry. Ace. Law, § 50, p. 49; Harris 
 V. Minneapolis etc. J{. Co., 37 Minn. 47; 33 N. W. Rep. 12. It may, 
 therefore, be concluded that if the injured person had no actual knowl- 
 edge of the dange'r that threatened him, and would in the exercise of 
 ordinary care have apprehended it, h^ cannot be charged with contribu- 
 tory negligence. Bennett v. Railroad Co., 102 U. S. 577; 1 Am. & Bng. ^ 
 R. Cas. 71 ; Hay ward o. Merrill, 94 III. 349 ; 84 Am. Rep. 229 ; Jeffrey ». 
 Keokuk, etc. R. Co., 66 la. 546; 5 Am. & Eng. R. Cas. 568; Langman v. 
 St. Louis etc. E. Co., 72 Mo. 392; 3 Am. & Eng. E. Cas. 356; Murray v. 
 MoShane, 52 Md. 217; 36 Am. Rep. 36; Dush ». Fitzhugh, 2 Lea, 307; 
 McGary v. Loomis, 63 N. Y. 104; 20 A. M. Rep. 510; Gray v. Scott, 66 Pa. 
 
568 NEGLIGENCE. 
 
 in danger, used reasonable care for his own safety or that 
 of his property, the damage would still not have happened. 
 Thus my original negligence is a comparatively remote 
 
 St. 345; Washington v. Bait. & O. R. Co., 17 W. Va. 190; 10 Am. & Eng. 
 R. Cas. 749; Varney v. Manchester, 58 N. H. 430; 42 Am. Rep. 692. 
 
 The converse of the rule last above announced may be found in the 
 doctrine, that, if defendant knew, or had reason to apprehend, special 
 dangers from his acts or omissions, or had greater capacity for under- 
 standing the harmful results likely to follow f ronj his conduct than the 
 injured person had, he wUl be liable, uotwitbstandiug acts or omissions 
 on the part of the injured person, that with equal knowledge of the dan- 
 ger, or capacity to apprehend it, would have been contributory negli- 
 gence. Jones V. Florence Mining Co., Sioux City etc. Ry. Co., 2 Dill. 
 294; Railroad v. Stout, 17 WalJ. 657; Keff v. Milwaukee etc. R. Co., 21 
 'Minn. 207; 18 Am. Rep. 393; Philadelphia etc. R. Co. v. Spearen, 47 Pa. 
 St. 300; Bransom «. Labrot, 81 Ky. 638; 50 Am. Rep. 193; Holden v. 
 Fitchburg R. Co., 129 Mass. 268; 2 Am. & Eng. R. Cas. 94; 87 Am. Rep. 
 343; Baltimore etc. R. Co. v. Rowan, 104 Md. 88; 23 Am. & Eng. R. Cas. 
 390; Louisville etc. R. Co. v. Erowley, 110 Md. 18, 22; 28 Am. & Eng. R. 
 Cas. 308; Whirleyu. Whiteman, 1 Head, 611; Smiths. Car Works(Mich.), 
 12 Am. & Eng. Corp. Cas. 269; Brush Electric Lighting Co. v. Kelly, 126 
 Ind. 222; 25 N. E. Rep. 812. Where one incurs danger in an attempt to 
 save the life of another or in the discharge ofia duty his conduct cannot 
 be charged against him as contributory negligence. Donahoei). Wabash, 
 etcR. Co., 83 Mo. 560; 53 Am. Rep. 594; Eckert v. L. I. R. Co., 57 Barb. 
 555; 43 N. Y. 603; 3 Am. Rep. 721; Evansville etc. R. Co. v. Hiatt, 17 
 Ind. 102; Pennsylvania Co. v. Roney, 89 Ind. 463; 12 Am. & Eng. R. Cas. 
 223; 46 Am. Rep. 173; Central R. Co. v. Crosby, 74 Ga. 737; 68 Am. Rep. 
 463; Atlanta etc. R. Co. v. Ray, 70 Ga. 674; 22 Am. & Eng. R. Cas. 281; 
 Cottrill V. Chicago, M. & St. P. R. Co., 47 Wis. 634; 32 Am. Rep. 796; 
 Central R. Co. v. Sears, 61 Ga. 279. 
 
 As said on a preceding page (391) the question whether the burden of 
 proving contributory negligence rests on the defendari^s-who pleads it, or 
 its absence on the plaintiff who alleges its non-existence, is very much 
 mooted, and a discussion of the perplexing rulings of the courts could 
 not be undertaken here with either propriety or hope -• of solution. 
 Among the cases holding that the burden is on the plaintiff are the fol- 
 lowing: Greenleaf u. 111. etc. R. Co., 29 la. 14; 4 Am. Rep. 181; Slossen 
 V. Burlington, etc. R. Co., 55 la. 294; 7 Am. &Eng. R. Cas. 609; Mount 
 Vernon v. Dusonchett, 2 Ind. 586; 64 Am. Dec. 467; Cincinnati etc. R. 
 Co. V. Butler, 103 Ind. 31; 23 Am. & Eng. R. Cas. 262; State ». Maine 
 Cent. R. Co., 76 M. 357; 19 Am. & Eng. E. Cas. 312; 49 Am. Rep. 662; 
 Kennard v. Burton, 26 Me. 39; 43 Am. Dec. 249; Detroit & Milwaukee R. 
 Co. «. Van Steinburg, 17 Mich. 99; Teifel v. Hilsendegin, 44 Mich. 461; 
 Doggetti). Richmond etc. E. Co., 78 N. C. 305; Indiana etc. R. Co. ». 
 
CONTKIBUTOEY NEGLIGENCE. 569 
 
 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 another. In a state of 
 facts answering this general description the person harmed 
 is by the rule of the common law not entitled to any 
 remedy. He is said to be " guilty of contributory negli- 
 gence ; " 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 
 rejected by writers of no small weight (q). And it stands 
 ill with the common practice of our courts, founded on 
 
 (g) See OampbeU, 180; Horace Smitli, pari delicto, though not without anthor- 
 
 226 ; and Wharton, §§ 300 sqq., who gives Ity, is likewise confusing and objection- 
 
 the same conclusions in a more elaborate able, 
 form. The use of such phrases as in 
 
 Greene, 106 Ind. 279: 25 Am. & Eng. K. Cas. 322; 55 Am. Rep. 736; Chase 
 V. Maine etc. B. Co., 77 Me. 62; 19 Am. & Eng. R, Cas. 356. Contra, 
 O'Brien ». Tatum, 84 Ala. 186; 4 So. Bep. 159; Buescliing v. St. Louis 
 Gaslight Co., 73 Mo. 229; 39 Am. Bep. 503; Bapp v. St. J. & I. R. Co., 
 106 Mo. 423 ; 17 S. W. Rep. 487 ; Watson v. Oxanna Land Co., 92 Ala. 320 ; 
 8 So. Rep. 772; Georgia Pac. Ry. v. Davis, 92 Ala. 300; 9 So. Rep. 252; 
 Denver & R. G. R. Co. v. Ryan, 17 Colo. 98; 28 Pac. Rep. 78; Hough ». 
 Railroad Co., 100 U. S. 213; Railroad Co. v. Gladman, 15 Wall. 401; 
 Indianapolis etc. R. Co. v. Horst, 93 U. S. 291 ; Dallas etc. B. Co. v. Spicker, 
 61 Tex. 427; 21 Am. & Eng. B. Cas. 160; 48 Am. Bep. 297; Prideaux u. 
 Mineral Point, 43 Wis. 613; 28 Am. Bep. 558; i'owler v. Baltimore etc. 
 B. Co., 18 W. Va. 579; 8 Am. & Eng. E. Cas. 480; McDougall v. Cent. B. 
 Co., 63 Cal. 431; 12 Am. & Eng. B. Cas. 143; May v. Hanson, 5 Cal. 360; 
 63 Am. Dec. 135; Louisville etc. B. Co. v. Goetz, 79 Ky. 442; 
 14 Am. & Eng. B. Cas. 627; 42 Am. Bep. 227; Hocum v. Weitherick, 22 
 Minn. 152; Sanderson v. Frazier, 8 Colo. 79; 54 Am. Bep. 544; Sheff v. 
 Huntington, 16 W. "Va. 307; Bromley v. Birmingham M. B. Co. (Ala.), 11 
 So. Rep. 341 ; Washington & G. R. Co. v. Fobriner, 147 U. S. 571 ; 13 S. 
 Ct. Bep. 567. 
 
570 NEGLIGENCE. 
 
 constant experience of the way in which this question 
 presents itself in real life, " The received and usual way 
 of directing a jury . . . , is to say that if the plaintiff 
 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 " (?■). That is 
 to say, he is not to lose his remedy merely because he has 
 been negligent at some stage of the business, though with- 
 out 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 immediately 
 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 contributed 
 to the accident, yet if the defendant could in the result, by 
 the exercise of ordinary care and diligence, have avoided 
 the mischief which happened, the plaintiff's negligence will 
 not excuse him" (s). And. in a recent leading case, of 
 which there will be more to say, the criterionof what was the 
 proximate cause of the injury is adopted throughout {t). 
 The element of truth which the penal theory, as I have 
 called it, presents in a distorted form, is that the rule is 
 not merely a logical deduction, but is founded in public 
 utility. " The ultimate justification ,of the rule is in 
 reasons of policy, viz. the desire to prevent accidents by 
 inducing each member of the community to act up to the 
 standard of due care set by the law. If he does not, he is 
 deprived of the assistance of the law" (u). 
 
 (r) Lord Blackbimi,3 App. Ca. at p. (1888), 13 App. Ca. 1, 57 L. J. P. 65; see 
 
 1207. especially the judgment of LindleyL. J., 
 
 (») Lqrd Penzance, Radliy t. L. f N. and cp. Iiittle v. ffackett (1886), 116 U. S. 
 
 W. R. Co. (1876), 1 App. Ca. at p. 769. 366. 371. 
 
 (*) The Bernina (1887), 12 P. D. 36, 56 («) W. Schofleld in Harv. Law Rev. 
 
 L. J. P.38;affd. nom. Mills v. Armstrong 111.270. 
 
CONTRIBUTOKY NEGLIGENCE. 571 
 
 Tuff V. Warman. The leading case which settled the 
 doctrine in its tnodern form ia Jhiffv. Warman {x). The 
 action was against the pilot of a steamer in the Thames for 
 running down the plaintiff's barge; the plaintiff's own 
 evidence showed that there was no look-out on the barge ; 
 as to the conduct of the steamer the evidence was conflict- 
 ing, 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 plairftiff, and if so, whether it " directly 
 contributed to the accident." This was objected to as too 
 favourable to the plaintiff, but was upheld both in the full 
 Court of Common Pleas and in the Exchequer Chamber. 
 In the considered judgment on appeal (y) it is said that the 
 proper question for the jury is " whether the daniage was 
 occasioned entirely by the aegligence or improper conduct 
 of the defendant, or whether the plaintiff himself so far con- 
 tributed to the misfortune by his own negligence or want 
 of ordinary and common care and caution that, but for such 
 negligence or want of ordinary eare and caution on his 
 part, the misfortune would not have happened." But neg- 
 ligence will not disentitle the plaintiff to recover, unless it 
 be such that without it the harm complained of would {zj 
 not have happened; " nor jf the defendant might by the 
 exercise of care on his part have avoided the consequences 
 of the neglect or carelessness of the plaintiff." 
 
 Radley v. I/. & If. W. R. Co. In Radley v. London 
 and North Western Railway Co. (a), this doctrine received 
 a striking confirmation. 
 
 The defendant railway company was in the habit of tak- 
 ing full trucks from the siding of the plaintiffs, colliery 
 
 , (X) 2 C. B. N. S. 740, 5 0. B. N. S. 573, (a) 1 APP- Ca. 754, 46 L. J. Ex. 573, 
 
 27 L. J. C. P. 332 (1857-8). reversing the judgment of the Exchequer 
 
 (,1/) -5 C. B. N. S. at p. 585. ' Chamber, L. E. 10 Ex. 100, and restoring 
 
 (2) Not " could: " see Beven on Neg- that of the Court of the Exchequer, L. 
 
 Ugence, 132. E. 9 Ex. 71 (1874-6) . 
 
572 NEGLIGENCE. 
 
 owners, and returning the empty trucks there. Over this 
 siding was a bridge eight feet high from the ground. On 
 a Saturday afternoon, when all the colliery men had left 
 work, the servants of the railway ran some trucks on the 
 siding and left them there. One of the plaintiffs' men 
 knew this, but nothing was done to remove the trucks. 
 The first of these trucks contained another broken-down 
 truck, and their joint height amounted to eleven feet. On 
 the Sunday^ evening the railway servants brought on the 
 siding a line of empty trucks, and pushed on in front of 
 them all those previously left on the siding. Some resist- 
 ance was felt, and the power of the engine pushing the 
 trucks was increased. The two trucks at the head of the 
 line, not being able to pass under the bridge, struck it and 
 broke it down. An action was brought to recover damages 
 for the injury. The defence was contributory negligence, 
 on the ground that the plaintiffs' servants ought to have 
 moved the first set of trucks to a safe place, or at auy rate 
 not have left the piled-up truck in a dangerous position. 
 The judge at the trial told the jury that the plaintiffs must 
 satisfy them that the accident " happened by the negligence 
 of the defendant's servants, and without any contributory 
 negligence of their own; in other words, that it was solely 
 by the negligence of the defendant's servants." 
 
 Oa these facts and under this direction the jury found 
 that there was contributory negligence on the part of the 
 plaintifi"s, and a verdict was entered for the defendants. 
 The Court of Exchequer (6) held that there was no evi- 
 dence 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 (c) held that there was evidence of the plaintiffs 
 having omitted to use reasonable precaution, and that the 
 direction given to the jury was sufficient. In the House of 
 
 (6) Bi^^weU aud Amphlctt BB. (o) Blackburn, Mellor, Lush, Grove, 
 
 Brett, Archibald JJ. ; diss. Denman J. 
 
CONTRIBUTAEY NEGLIGENCE. 573 
 
 Lords it was held (d) 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 i 
 defendant could not by the exercise of ordinary care have ) 
 avoided the result^ 
 
 " 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 
 iSt to be considered by the jury on the question of negli- 
 gence ; but he failed to add that if they thought the 
 engine-driver might at this stage of 'the matter by ordi- 
 nary care have avoided all accident, any previous negli- 
 gence 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 diligence on the 
 part of the engine-driver would, notwithstanding any pre- 
 vious negligence of the plaintiffs 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 that 
 question was never put to the jury " (e). 
 
 "Proximate" or "decisive" cause? This leaves no 
 doubt that the true ground of contributory negligence 
 being a bar to recovery is that it is the proximate cause of 
 
 («f) By Lord Penzance, Lord Calms, (e) Loid Penzance, 1 App. Ca. at p. 
 
 Lord Blackburn (tbns retracting his 760. 
 opinion In the Ex. Oh.), and Lord Gor- 
 don. 
 
 Proximate cause. Proximate means direct or immediate. In the case 
 of Montgomery Gas Light Co. v. Montgomery & E. Ey. Co. (86 Ala. 381 ; 
 580; 5 Rep. 735) the court said: "It is bbjected, that the circuit court in 
 defining the phrase contributory neffUgence embraced in it the idea, that 
 
574 NEGLIGENCE. 
 
 the mischief; and negligence on the plaintiff's part which 
 is only part of the inducing causes ( f) will not disable 
 him. I say " the proximate cause," considering the term 
 as now established by usage and authority. But I would 
 still suggest, as I did in the first edition, that " decisive " 
 might convey the meaning more exactly. For if the de- 
 fendant's original negligence were so far remote from the 
 plaintiff's damage as not to be part at least of its " proxi- 
 mate cause " within the more general meaning of that term, 
 
 ( / ) Oi, as Mr. Wbarton puts It, not a cause but a condition. 
 
 it must have been of a character to have ' essentially contributed ' to the 
 injury set out in the complaint. It is often said, that no negligence on 
 the part of the plaintiff, which remotely contributes to produce an injury, 
 will debar him from a recovery ; and it is variously stated, that no negli- 
 gence is contributory and proximate, in the order of cause and effect, 
 unless it 'substantially' or 'essentially,' or 'directly' tends to produce 
 such injury, or is an ' efficient cause ' or • actual and efficient ' cause in 
 producing it. ^ These terms of description are often used indifferently to 
 distinguish the direct and immediate or judicial cause of the injury, 
 from a remote cause or mere condition of such injury, and they cannot 
 be said to be either erroneous or misleading." Government St. K. Co. 
 V. Hanlon, 53 Ala. 70, approved. See Hoag ». Railroad, 85 Pa. St. 292 ; 
 Beach on Contrib. Neg. 25>nd 28 ; Jung v. City of Stevens Point, 74 Wis. 
 654. "The act or omission on the part of a plaintiff claimed to have 
 contributud to the injury must have direct relation totbe act or omission 
 charged to be neglif^nce on the part of the defendant." McQuitken v. 
 Central P. E. Co., 64 Cal. 463; 16 Am. & Eng. R. Cas. 353. See Trow ». 
 Vermont C. R. Co., 24 Vt. 487; 58 Am. Dec. 191; Fowler v. Bait. & 0. R. 
 Co., 48 "W. Va.^79; 8 Am. & Eng. E. Cas. 480; Meeks v. Southern P. R. 
 Co., 56 Cal. 513; 8 Am. & Eng. R. Cas. 814; Zemp v. Wilmington etc. R. 
 Co., 9 Rich. 84; 64 Am. I>ec. 763; Alexander v. Town of New Castle, 115 
 Ind. 61; 17 N. E. Rep. 200; Pastime v. Adams, 49 Cal. 87; Railway Co. ■». 
 Kellogg, 94 U. S. 474; Thompson v. Louisville &~N. R. Co., 91 Ala. 496; 
 8 So. Rep. 408; Blaine «. C. & O. R.,9 W. Va. 267; Williams ». Edmunds, 
 75 Mich. 97; Smith v. French, 83 Me. 108; 21 At. Bep. 739; Cline v. 
 Crescent City R. R. Co., 43 La. An. 333; 9 So. Rep. 122; St, Louis etc., 
 Ry. Co. V. McKinsey, 78 Tex. 298; 14 S. W. Rep. 645; Mars ». Del. & H. 
 Canal Co., 54 Hun, 681; 8 N. Y. S. Rep. 107; Banks v. Wabash Western 
 Ry. Co., 40 Mo. App. 464; Nagel v. Railroad, 75 Mo. 661; Steamboat 
 Farmer v. McCraw, 26 Ala. 189; Grant o. Moseley, 29 Id. 304; Beers v. 
 Housatonic R. Co., 19 Conn. 666; Marcott «. Railroad Co., 47 Mich. 1; 49 
 Id. 99 ; 4 Am. &Eng. R. Cas. 548 ; James v. James (Ark.) 23 S. W. Rep. 1099. 
 
CONTRIBUTORY NEGLIGENCE. 575 
 
 the plaintiff would not have any case at all, and the ques- 
 tion of contributory negligence could not arise. We shall 
 immediately see, moreover, that independent negligent acts 
 of A. and B. may both be proximate in respect of harm 
 suffered by Z., though either of them, if committed by Z. 
 himself, would have prevented him from having any 
 remedy for the other. Thus it appears that the term 
 "proximate" is not used in precisely the same sense in 
 fixing a negligent defendant's liability and a negligent 
 plaintiff 's disability, ' 
 
 The plaintiff's negligence, if it is to disable him, has to 
 be somehow more proximate than the defendant's. It seems 
 dangerously ambiguous to use " proximate " in a special 
 emphatic sense without further or otherwise marking the 
 difference. If we said " decisive " we should at any rate 
 avoid this danger. 
 
 Self-created disability to avoid consequences of 
 an other's negligence. It would seem that a per- 
 son who has by his own act or default deprived 
 himself of ordinary ability to avoid the conse- 
 quences of another's negligence can be in no better 
 position than if, having such ability, he had failed to 
 avoid them; unless, indeed, the other has notice of his 
 
 Self-created disability to avoid consequences ol another's negli- 
 gence. The rule that where a person by either act or omission deprives 
 himself of ordinary ability to avoid the consequences of another's negli- 
 gence forfeits his right to complain of injury, received therefrom is 
 recognized and established in America, although it seems that in a 
 majority of the cases intoxication was the cause of the disability. 
 " Intoxication on the part of the deceased will not, as a matter of law, 
 establish the charge of contributory negligence set up in the answer, 
 but it is a fact from which contributory negligence may be inferred. 
 The weightof such evidence depends much upon the degree of intoxication, 
 not drunkenness to any degree as a fact which should be considered on 
 the question of contributory negligence." Buddenberg v. Chouteau 
 Transp. Co., 108 Mo. 394 ; 18 S. "W. Eep. 971, citing Beach Contril). Neg., 
 Sec. 66; Fitzgerald w. Town of Weston, 62 Wis. 356; 9 N. W. Rep. 13; 
 Bishop on Non-Contract Law, Sec. 513 ; East Tennessee etc. E. Co. v. 
 
576 NEGLIGENCE. 
 
 inability in time to use care appropriate to the emergency j 
 in which case the failure to use that care is the decisive 
 negligence. A. and B. are driving in opposite directions 
 on the same road on a dark night. B. is driving at a 
 dangerous speed, and A. is a,sleep, but B. cannot see that 
 he is asleep. Suppose that A., had he been awake, might 
 have avoided a collision by ordinary care notwithstanding 
 B.'s negligence. Can A. be heard to say that there is no 
 contributory negligence on his part because he was asleep ? 
 It seems not. Suppose, on the other hand, that the same 
 thing takes place by daylight or on a fine moonlight night, 
 so that B. would with common care and attention perceive 
 A.'s condition. Here B. would be bound, it seems, to use 
 special caution no less than if A. had been disabled, say 
 by a sudden paralytic stroke, without default of his own. 
 So if a man meets a runaway horse, he cannot tell whether 
 it is loose by negligence or by inevitable accident, nor can 
 this make any diflference to what a prudent man could or 
 would do, nor, therefore, to the legal measure of the 
 diligence required (g). 
 
 Earlier illustrations : Davies v. Mann. Cases earlier 
 than Tuff' v. Warman (h) are now material only as illus- 
 trations. A celebrated one is the '• donkey case," Davies, 
 V. Mann (i). There the plaintiff had turned his ass loose 
 in a highway with bis 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, whatevei: 
 
 (g) Cp. Mr. W. Sohofleld's article In (i) 10 M. & W. 546, 12 L. J. Ex. 10 
 
 Harv. Law Rev. lU. 263. (1842). 
 
 (ft) 5 0. B. N. S. 573, 27 L. J. C. P. 322. 
 
 Winters, 85 Tenn. 240; Monk ». New Utrecht, 104 N. Y. 562; Alger v. 
 Lowell, 3 Allen, 402; Barbee v. Reese, 60 Miss. 906; Eeed v. Harper, 25 
 la. 87; McKee v. Ingall, 5 111. 80; Illinois Cent. R. Co. v. Gragin, 71 111. 
 177; Hubbard v. Mason City, 60 la. 400; Weltoy v. Indianapolis, etc. E. 
 Co., 105 Ind. 55; Anderson v. The E. B. Ward, Jr., 38 Fed. Eep. 44. 
 See Drunkenness, ante, p. 5^. 
 
CONTRIBUTOBT NEGLIGENCE. 577 
 
 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 the part of the driver. 
 Otherwise " a man might justify the driving 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 " (J). With this may be com- 
 pared the not much later case of Mayor of Colchester v. 
 Brooke (A), where it was laid down (among many other 
 matters) that if a ship runs on a bed of oystei;s 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. The facts of Davies v. Mann 
 suggest many speculative variations, and the decision has 
 been much and not always wisely discussed in America, 
 though uniformly followed in this country (?). 
 
 Batterfleld v. Forrester. Butterfield v. Forrester (m) 
 is a good example of obvious fault on both sides, where the 
 plaintiff's damage was immediately due to his own want of 
 care. The defendant had put up a pole across a public 
 thoroughfare in Derby, which he had no right to do. The 
 plaintiff was riding that way at eight o'clock in the evening 
 in Augusti when dusk was coming on, but the obstruction 
 was still visible a hundred yairds 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 defend- 
 ant ; anS 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 
 hipaself." Herfe it can hardly be said that the position of 
 
 ij ) Parke B., 10 M. & W. at p. 549 ; cp. (*) 7 Q. B. 339, 376, 15 L. J. Q. B. 59. 
 
 Ms judgment in SrW{rev. Grtmd JimctUm (l) See Harv. LawEev. Hi. 272, 276. 
 
 £. Co. (1838), 3 M. & W. at p. 248. (m) 11 East, 60 (1809). 
 
 37 
 
578 NEGLIGENCE. 
 
 the pole across the road was not a proximate cause of the 
 fall. But it was not the whole proximate cause. The other 
 and decisive cause which concurred was the plaintiff's failure 
 to see and avoid the pole in his way. 
 
 On the whole, then, if the plaintiff's " fault, whether of 
 i omission or of commission, has been the proximate cause 
 of the injury, he is without remedy against one also in the 
 wrong " (n). On the other hand, if the defendant's fault 
 has been the proximate cause he is not excused merely by 
 showing that the plaintiff's fault at some earlier stage 
 created the opportunity for the fault which was that 
 cause (o). If it is not possible to say whether the plaintiff's 
 or the defendant's negligence were the proximate (or de- 
 cisive) cause of the damage, it may be said that the plaintiff 
 cannot succeed because he has failed to prove that he has 
 been injured by the defendant's negligence (p). On the 
 other hand it might be suggested that, since contributory 
 negligence is a matter of defence of which the burden of 
 proof is on the defendant (g'), the defendant would in such 
 a case have failed to make out his defence, and the plafutiff, 
 having proved that the defendant's negligence was a proxi- 
 mate cause if not the whole proximate cause of his damage, 
 would still be entitled to succeed. The defendant must 
 allege and prove not merely that the plaintiff was negligent, 
 but that the plaintiff could by the exercise of ordinary care 
 have avoided the consequences of the defendant's negli- 
 gence (»■). It is a question, either way, wheither the 
 plaintiff shall recover his whole damages or nothing, for 
 the common law, whether reasonably or not (s), has made 
 no provision for apportioning damages in such cases. A 
 learned writer ( whose preference for being anonymous I 
 
 (») Little V. JTackett (1886), 116 U. S. (g) Lord Watson (Lord Blackl^arn 
 
 366, 371 ; Butterfield v. Forrester, above. agreeing) , Wakelin v. L. f S. W. R. Co. 
 
 (.0) Radley V. L. ^ JV. W. B. Co.; (1886) , 12 App. Oa. at pp. 47-49. 
 
 DavieB y. Mann. (r-) Bridge v. Brand Junction X. Co. 
 
 (p) Per Liudley L. J., Tlie Bemima, 12 (1838) , 3 M. & W. 248. 
 
 P. D. 68, 89. (s) See per Llndley, L. J., 12 P. D. 89. 
 
CONTEIBUTORT NEGLIGENCE. 579 
 
 respect but regret) has suggested that " hardly sufficient 
 attention has been paid herein to the distinction between 
 cases where the negligent acts are simultaneous and those 
 where they are successive. In regard to the former class, 
 such as Dublin, Wicklow & Wexford Ry. Co. v. 8lat- 
 tery {t), or the case of two persons colliding at a street 
 corner, the rule is, that if the plainti^ could by the exercise 
 of ordinary care have avoided the accident he cannot re- 
 cover. In regard to the latter class of cases, such as Davies 
 V. Mann (u) and Radley v. L. & N. W. By. Co. (as), 
 the rule may be stated thus: th&t he who last has an op- 
 •porlunity of avoiding the accident, notwithstanding the neg- 
 ligence of the other, is solely responsible. And the ground of 
 both rules is the same : that the law looks to the proximate 
 cause, or in other words, will not measure out responsi- 
 bility in halves or other fractions, but holds that person 
 liable who was in the main the cause of the injury " (y). 
 Another kind of question arises where a person is in- 
 jured without any fault of his own, but by the combined 
 effects of the negligence of two persons, of whom the one 
 is not responsible for the other. It has been supposed that 
 A. could avail himself, as against Z. who has been injured 
 without any want of due care on his own part, of the so- 
 called contributory negligence of a third person B. "It 
 is true you were injured by my negligence, but it would 
 not have happened if B. had not been negligent also, 
 therefore you cannot sue me, or at all events not 
 apart from B." Eecent authority is decidedly against^ 
 allowing such a defence, and in one particular class of cases 
 it has been emphatically disallowed. It must, however, 
 be open to A. to answer to Z. : " You were not injured 
 by my negligence at all, but only and wholly by B.'s." It 
 seems to be a question of fact rather than of law what 
 respective degrees of connexion, in kind and degree 
 
 («) 3 App. Oa. 1155. (x) 1 App. Ca. T54, 46 L. J. Ex. mz. 
 
 (») 12 M. & W. 516. Ky) L. Q. E. T. 87. 
 
580 NEGLIGENCE. 
 
 between the damage suffered by Z. and the independent 
 negligent conduct of A. and B. will make it proper to say 
 that Z. was injured by the negligence of A. alone, or of 
 B. alone, or of both A. and B. But if this last conclusion 
 be arrived at, it is now quite clear that Z. can sue both A. 
 and B. {z). 
 
 The exploded doctrine of "identification." In a 
 
 case now overruled, a different doctrine was'set up which, 
 although never willingly received and seldom acted on, 
 remained of more or less authority for nearly forty years. 
 The supposed rule was that if A. is travelling in a vehicle, 
 whether carriage or ship, which belongs to B. and is under 
 the control of B.'s servants, and A. is injured in a collision 
 with another vehicle belonging to Z., and under the control 
 of Z.'s servants, which coUison is caused partly by the 
 negligence of B.'s servants and partly by that of Z.'s 
 servants, A. cannot recover against Z. The passenger, it 
 was said, must be considered as having in some sense 
 "identified himself" with the vehicle in which he has 
 chosen to travel, so that for the purpose of complaining of 
 any outsider's negligence he is not in any better position 
 than the person who has the actual control (a). It is very 
 diflBcult to see what' this supposed " identification " really 
 meant. With regard to any actual facts or intentions of 
 parties, it is plainly a figment. No passenger carried for 
 hire intends or expects to be answerable for the negligence 
 of the driver, guard, conductor,, master, or whoever the 
 person in charge may be. He naturally intends and justly 
 (expects, on the contrary, to hold every such person and his 
 superiors answerable to himself. Why that right should 
 exclude a concurrent right against other persons who have 
 also been negligent in the same transaction was never really 
 
 («) lAUle T. HacTcelt (18S6), 116 U. S. (a) Judgments in rAoropood v. -Bryan, 
 
 366;,Jlf«is V. Armstrong (1888), 13 App. see 12 P. D. at pp. 64-67, 13 App. Ca. at 
 
 Ca. 1, overrnling Thvrogood v. Bryart pp. 6, 7, 17. 
 (1849), 8 C. B. 115, 18 L. J. C. P. 336. 
 
DOCTRINE OP " IDENTIFICATION." 581 
 
 explained. Yet the eminent judges (6) who invented 
 " identification " must have meant something. They would 
 seem to have assumed, rather than concluded, that the 
 plaintifl" was bound to show, even in a case where no 
 negligence of his own was alleged, that the defendant's 
 negligence was not only a cause of the damage sustained, 
 but the whole of the cause. But this is not so. The strict 
 analysis of the proximate or immediate cause of the event, 
 the inquiry who could last have prevented the mischief by 
 the exercise of due care, is relevant only where the defend- 
 ant says that the plaintiff suffered by his own negligence. 
 Where negligent a6ts of two or more independent persons 
 have between them caused damage to a third, the sufferer 
 is not drivep to apply any such analysis to find out whom he 
 can sue. He is entitled — of course within the limits set 
 by the general rules as to remoteness of damage — to sue 
 all or any of the negligent persons. It is no concern of 
 his whether there is any duty of contribution or indemnity 
 as between those persons, though in any case he plainly 
 cannot recover in the whole more than his whole damasre. 
 
 The phrase " contributory negligence of a third person," 
 which has sometimes been used, must therefore be rejected 
 as misleading. Peter, being sued by Andrew for causing 
 him barm by negligence, may prove if he can that not his 
 negligence, but wholly atid only John's, harmed Andrew. 
 It is useless for him to show that John's negligence was 
 "contributory" to the harm, except so far as evidence 
 which proved this, though failing to prove more, might 
 practically tend to reduce the damages. 
 
 It is impossible to lay down rules for determining 
 whether harm has been caused by A.'s and B.'s negligence 
 together, or by A.'s or B.'s alone. The question is essen- 
 tially one of fact. There is no reason, however, why joint 
 negligence should not be successive as well as simultaneous, 
 
 (6) Coltman, Maale, Cresswell, and Vanghivu Williams JJ. 
 
58"2 NEGLIGENCE. 
 
 and there is some authority to show that it may be. A 
 wrongful or negligent voluntary act of Peter may create a 
 State of things giving an opportunity for another wrong- 
 ful or negligent act of John, as well as for pure accidents. 
 If harm is then caused by John's act, which act is of a 
 kind that Peter might have reasonably foreseen, Peter and 
 John may both be liable ; and this whether John's act be 
 wilful or not, for many kinds of negligent and wilfully 
 wrongful acts are unhappily common, and a prudent man 
 cannot shut his eyes to the probability that somebody will 
 commit them if temptation is put in the way. One is not 
 entitled to make obvious occasions for negligence. A. 
 leaves the flap of a cellar in an insecure position on a high- 
 way where all manner of persons, adult and infant, wise 
 and foolish, are accustomed to pass. B. in carelessly 
 passing, or playing with the flap, brings it down on him- 
 self, or on C. In the former case B. has suffered from his 
 own negligence and cannot sue A. In the latter, B. is 
 liable to C, but it may well be that a prudent man in A.'s 
 place would have foreseen and guarded against the risk of 
 a thing so left exposed in a public place being meddled 
 with by some careless person, and if . a jury is of that 
 opinion A. may also be liable to C. (c). Where A. placed 
 a dangerous obstruction in a road, and it was removed by 
 some unexplained act. of an unknown third person to 
 another part of the same road where Z., a person lawfully 
 using the road, came against it in the dark and was injured, 
 A. was held liable to Z., though there was nothing to show 
 whether the third person's act was or was not lawful or 
 done for a lawful purpose (d). 
 
 Accidents to children in custody of adult. Another 
 special class of cases requires consideration. If A. is a 
 
 (c) Hughes t. Macfie (1863), 2 H. & 0. p. 43, above ; Dixon v. Bell, g M. & S. 19S, 
 744, 33 L. J. Ex. 177; and see Clark 'v. p. 446, below. 
 Chambers (1878), 8 Q. B. D. at pp. 330-336, (d) Clairk v. Chambers, last note. 
 
NEGLIGENCE OF THIRD PEKSONS. 583 
 
 child of tender years (or other person incapable of taking 
 ordinary care of himself), but in the custody of M., an 
 adult, and one or both of them suffer harm under circum- 
 stances tending to prove negligence on the part of Z., and 
 also contributory negligence on the part of M. (e), Z. will 
 not be liable to A. if M.'s negligence alone was the proxi- 
 mate cause of the mischief. Therefore if M. could, by 
 
 (e) Waite T. N. E. R. Co. (1859), Ex. untouched by ilfiZZ^ v. ^rmsironp, 13 App. 
 Ch. E. B. & E. 719, 27 L. J. Q. B.417, 28 L. Ca. 1 (see at pp. 10, 19), 57 L. J. P. 65. 
 J. Q. I^. 258. This case is expressly left 
 
 Accidents to children in custody ol adult. It may be stated as a 
 general rule, that where a child of tender years, while in the custody of 
 an adult, is injured by the begligence of another, and it is proved that the 
 negligence of the adult so contributed to the injury that under the same 
 circumstances except that, if the adult had been alone and so Injured, 
 his contributory negligence would have barred his right of action, then 
 the right of action for the child's injury is barred for the same reason. 
 The negligence of the adult isimputed to the child. In deciding cases of 
 this class the- difficulties that have been met are to determine: (1) 
 Whether the child is wholly incapable of exercising care; (2) what 
 amounts to custody. These are questions of fact and properly go to the 
 jury. It may be said that, in general, it is incumbent upon the adult to 
 show himself free from contributory negligence. See Ratte «. Dawson, 
 60 Minn. 450; 52 N. W. Rep. 965; Texas & P. Ey. Co. v. Morin, 66 Tex. 
 133; IS S. W. Rep. 345. But see Shippy v. Village of Au Sable, 85 
 Mich. 280; 48 N. W. Rep. 687; Battishill v. Humphreys, 64 Mich. 603; 31 
 N. "W. Rep. 894. - 
 
 " Some authorities seem to make a distinction between cases where 
 the contributory negligence of the parent occurs while he has the child 
 under his immediate control, and other cases which occur when the child 
 is away from the parent." Norfolk & W. R Co. v. Groseclose's Admr., 88 
 Va. 267; 13 S. E. Rep. 456. See Mayor, etc. of Vicksburg v. 
 McLain, (Miss.), 6 So. Eep. 774; Jeffersonville, etc. R. Co. v. Bowen, 
 40 Md. 545; Pittsburg, A. & M. Ry. Co. «. Pearson, 72 Pa. St. 169; Smith 
 V. Hestonville, etc. Ry. Co., 92 Pa. St. 450; 37 Am. Rep. 705; Cauley v. 
 Pitts., etc. Ry. Co., 96 Pa. St. 398; "Wright v. Maiden & M. R. R. CO., 4 
 Allen, 283; Holly v. Boston Gas Light Co., 8 Gray, 123; Gibbons v. 
 Williams, 135 Mass., 333; Griffin v. Lawrence, Id. 363; Payne v. Humes- 
 ton & S. Ry. Co., 70 la. 684; 31 N. W. Rep. 886; Cartarso v. The 
 Burgundia, 29 Fed. Rep. 464; Gunderson v. Northwestern Elevator Co., 
 47 Minn. 161; 49 N. W. Rep. 694. But see Brie Pass. Ry. Co. v. 
 Schuster, 11 Pa. St. 412; 57 Am, Rep. 471. 
 
584 NEGLIGENCE. 
 
 such reasonable diligence as is commonly expected of per- 
 sons having the care of young children, have avoided the 
 consequences of Z.'s negligence, A. is not entitled to sue 
 Z. : and this not because M.'s negligence is imputed by a 
 fiction of law to A., who by the hypothesis is incapable of 
 either diligence or negligence, but because the needful 
 foundation of liability is wanting, namely, that Z.'s negli- 
 gence, and not something else for which Z. is not answer- 
 able and which Z. had no reason to anticipate, should be 
 the proximate cause. 
 
 Children, etc., unattended. Now take the case of a 
 child not old enough to use ordinary care for its 
 own safety, which by the carelessness 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 
 
 CbUdren unattended. It is an accepted rule that the' law does not 
 exact from an infant the same degree of care and prudence in the pres- 
 ence of danger as is exacted from adults. An infant is bound only to 
 exercise that care which can reasonably be expected of one of its age. 
 In the case of Cleveland Boiling Mill u. Corrigan (46 Ohio, 283; 20 N. 
 E. Kep. 469), the court said: "We think it a sound rule, therefore, that, 
 In the application of the doctrine of contributory negligence to children, 
 in actions by them, or in their behalf, for injuries occasioned by the 
 negligence of others, their conduct should not be judged by the same 
 rule which governs that of adults; and, while it is their duty to exercise 
 ordinary care to avoid the injuries of which they complain, ordinary 
 care for them is that degree of care which children of the same age, of 
 ordinary care and prudence, are accustomed to exercise under similar 
 circumstances.'' See Bailroad Co. v. Stout, 17 Wall. 660; Wright v. 
 Detroit, etc. Ry. Co., 77 Mich. 123; 43 N. W. 765; Hassenger v. EaUroad 
 Co., 48 Mich. 206; 12 N. W. Rep. 155; Snow v. Provincetown, 120 Mass; 
 580; Kay v. Railroad Co., 65 Pa. St. 269; Lynch v. Smith, 104 Mass. 52; 
 Plumley o. Birge, 124 Mass. 57; 26 Am. Rep. 646; Bait. City Ry. v. Mc- 
 Donnell, 43 Md. 534; Government St. R. Co. ». Hanlon, 68 Ala. 70; Mor- 
 rissey «. Eastern R. Co., 126 Mass. 877; Jones v. Utica & B. R. R. Co., 
 86 Hun, 115; Matley v. Whittier Machine Co., 140 Mass. 337; Byrne r. 
 New York Cent. etc. R. Co., 83 N. Y. 621; Wiswell v. Doyle (Mass.;, 
 35 N. E. Rep. 107; Chicago etc. R. Co. •». Grablin, 56 N. W. Rep. 796; 
 Sheridan v. Brooklyn & N. E. Co., 36 N. Y. 42; Rockford etc. Co. v. 
 
NEGLIGENCE OF THIED PERSONS. 585 
 
 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 defendant's duty 
 
 Delaney, 82 111. 198; Vickers v. Atlanta & W. P. E. Co., 64 Ga. 306; St. 
 Louis & S. E. Ey. Co. v. Vallrlus, 56 Md. 512; McMillan v. B. & M. R. 
 Co., 46 la. 231. 
 \ There have been cases holding that an infant under seven years of age 
 Is conclusively presumed to be without discretion and incapable of neg- 
 ligence, and that between seven and fourteen years of age an infant is, 
 prima facie, incapable of'exercising judgement and discretion. Norfolk 
 & P. R. Co. V. Ormsby, 27 Gratt. 455; O'Conner v. Illinois Cent. E. Co., 
 44 La. An. 339; 10 So. Rep. 678; Iron Co. v. Brawley (Ala.), 3 So. Rep. 
 565; Eswin ». St. Louis etc. Ry. Co., 96 Mo. 290 ; 9 S. W. Rep. 577; Penn- 
 sylvania Co. V. James, 81 Pa. St. 194; Kreig v. Wells, 1 E. D. Smith (N. 
 Y.), 76; Hartfleld v. Roper, 21 Wend. 615; 34 Am. Dec. 273; Callahan v. 
 Bean, 9 Allen, 401; Mascheck v. St. Louis etc. R. Co., 3 Mo. App. 600; 71 
 Mo. 276; 2 Am. & Eng. E. Cas. 38; Mackey v. City, 64 Miss. 774; 2 So. 
 Rep. 178; Houston & T. C. Ey. Co. v. Simpson, 60 Ttx. 103. 
 
 Yet, it seems that all the cases agree that testimony is admissible to 
 show on the contrary, that infants may become responsible for negligence 
 at an earlier age. It may, therefore, be said : " The law fixes no arbitrary 
 period when the Immunity of children ceases and the responsibilities of 
 life begin. It would be irrational to hold that a man was responsible for 
 his negligence at twenty-one years of age, and not responsible a day or 
 week prior thereto." Nagle v. Allegheny Valley R. Co., 88 Pa. St. 35. 
 See McGovern v. New York etc. R-. Co., 67 N. Y. 417; Wendell v. Id., 91 
 Id. 420; Stone v. Dry Dock E. Co., 115 Id. 104; Westerflelds. Levi Bros., 
 43 La. An. 63; 9 So. Rep. 52; Tucker v. New York etc. R. Co., 124 N. Y. 
 318; 26 N. E. Rep. 916; Westerbrook v. Mobile etc. R. Co., 66 Miss. 560; 
 6 So. Rep. 321; Western & A. R. Co. v. Young, 81 Ga. 397; 7 S. E. Rep. 
 94;'Kansas P. Ry. Co. v. Whipple, 39 Kan. 531; 18 Pac. Rep. 730; Baker 
 ■i. Railroad Co., 68 Mich. 90 ; 35 N. W. Rep. 836 ; Powers v. Harlow, 53. 
 Mich. 507; 19 N. W. Rep. 257; Cassidac. Navigation Co., 14 Oreg. 551; 13 
 Pac. Rep. 438; Huff u. Ames, 16 Neb. 139; 19 N. W. Rep. 623. 
 
 The late cases hold, almost without exception, that the proprietors of 
 turn-tables, and other dangerous machinery, which is likely to excite the 
 curiosity of children or afford them amusement, are liable for injuries to 
 them, through failure to observe a corresponding degree of care. 
 Schmidt v. Kansas City Distilling Co., 90 Mo. 293; 1 S. W. Rep. 865; 
 Rosenberg ». Durfee, 87 Cal. 545; 26 Pac. Rep. 793; Daniels v. New York 
 etc. R., 154 Mass. 351; 28 N. E. Eep. 283, citing numerous cases; Ft. 
 Worth & D. C. By. Co. v. Robertson (Tex.), 16 S. W. Eep. 1093 ; Barrett 
 e. Southern P. Co., 91 Cal. 296; 27 Pac. Eep. 666; p'MaIley«. St. Paul, M. 
 &M. Ry. Co., 43 Minn. 289; 45 N. W. Rep. 440; Ilwaco Ry. &Nav. Co. v. 
 
586 NEGLIGENCE. 
 
 can be measured by his notice of special risk and his 
 means of avoiding it; there is no reason for making it 
 vary with the diligence or negligence of a third person in 
 giving occasion for the risk to exist. If the defendant is 
 so negligent that an adult in the plaintiff's position could 
 not have saved himself ,by reasonable care, he is liable. 
 If he is aware of the plaintiff's helplessness, and fails to 
 use such special precaution as is reasonably possible, then 
 also, we submit, he is liable. If he did not know, and 
 could not with ordinary diligence have known, the plain- 
 tiff to be incapable of taking care of himself (/), and has 
 used such diligence as would be sufficient towards an 
 adult ; or if, being aware of the danger, he did use such 
 additional caution as he reasonably could ; or if the facts 
 were such that no additional caution was practicable, and 
 there is no evidence of negligence according to the ordinary 
 standard (g), 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 (h). In 
 America there have been such decisions in Massachu- 
 setts (i),New York, and elsewhere: "but there are as 
 many decisions to the contrary " (^ ): and it is submitted 
 
 (/) This mlRht happen In yaiious Bnt that case went partly on the ground 
 
 ways, by reason of darkness or other- of the damage being too remote, and 
 
 wise. since Clark v. Chambers (18781, 3 Q. B. D. 
 
 (g) Singleton v. E. C. B. Co. (1889) , 7 327, 47 L. J. Q. B . 427, supra, p. 43, it Is of 
 
 C. B. N. S. 287, Is a case of this kind, as doubtfnl authority. For our own part 
 
 it was decided not on the Action of Im- we think it is not law. 
 puting a third person's negligence to (i) Holmes, The Common Law, 128. 
 
 a child, but on the ground (whether (j) BigelowL. 0.729, and see Horace 
 
 rightly taken or not) that there was no Smith, 241. In Vermont (RoMnson v. 
 
 evidence of negligence at all. Cone, 22 Vt. 213, 224, ap. Oooley on Torts, 
 
 (A) Mangan v. Atterton (1886),L. B. 1 681), the view maintained in the text is 
 
 Ex.239, 35 L.J. Ex. 161, comes near it. distinctly taken. " We are satisfied that, 
 
 Hedrick, 1 "Wash. St. 446; 25 Pac. Eep. 335; Gavin v. Chicago, 97 111.66; 
 Bay Shore E. Co. o. Harris, 67 Ala. 6; McGreary v. Eastern R. Co., 135 
 Mass. 363; 16 Am. & Eng. E. Cas. 407; Jisk v. Missouri Furnace Co., 10 
 Mo. App. 62. 
 
" IDENTIFICATION." 587 
 
 that both on principle and according to the latest authority 
 of the highest tribunals in both countries they are right. 
 
 Child V. Hearn. In one peculiar case (A) the now 
 exploded doctrine of "identification" (?) was brought 
 in, gratuitously as it would seem. The plaintiff was 
 a platelayer working on a railway ; the railway com- 
 pany was by statute bound to maintain a fence to 
 prevent animals (m) from straying off the adjoining land ; 
 the defendant was an adjacent owner who .kept pigs. 
 The fence was insufficient to keep out pigs (n). 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 ( o ) . 
 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 
 
 altbongh a child or Idiot or lunatic may (.k) Child v. Seam (1871), L. E. 9 Ex. 
 
 to some extent have escaped Into the 176, 43 L. J. Ex. 100. 
 
 highway, through the fault or negll- (l) P. 415, above, 
 
 genoe of his keeper, and so be improp- (m) " Cattle," held by the court to 
 
 erly there, yet if he is hurt by the Include pigs. 
 
 negligence of the defendant, he Is not (n) That is.piga of average vigour and 
 precluded from his redress. If one obstinacy; see per Bramwell B., whoso 
 know that such aperson is on the high- judgment (pp. 181, 182), is almost a car- 
 way, or on a railway, he Is bound to a Icature of the general idea of the " rea- 
 prop'ortionate degree of watchfulness, sonable man." It was alleged, but not 
 and what would be but ordinary neglect found aa a fact, that the defendant had 
 In regard to one whom the defendant previously been warned by some one of 
 supposed a person of full age and his pigs being ont he line, 
 capacity, would be gross neglect as to a (o) Note In Addison on Torts, 5th ed. 
 child, or one known to be incapable of 27. 
 escaping danger." So, too, Blgelow 730. 
 
588 NEGLIGENCE. 
 
 his own convenience." This ground would now clearly be 
 untenable. 
 
 Admiralty rule of dividing loss. The common law 
 rule of contributory negligence is unknown to the mari- 
 time law administered in courts of Admiralty jurisdiction. 
 Under a rough working rule commonly called Judicium 
 rusticum, aad apparently derived from early medieval codes 
 or customs, with none of which, however, it coincides in 
 its modern -application (p), the loss is equally divided in 
 cases of collision where both ships are found to haye been 
 in fault. " The ancient rule applied only where there was 
 no fault in either ship" (q); as adopted in England, it 
 seems more than doubtful whether the rule made any dis- 
 tinction, until quite late in the eighteenth century, between 
 cases of negligence and of pure accident. However that 
 . may be, it dates from a time when any more refined work- 
 ing out of principles was impossible (r). As a rule of 
 thumb, which frankly renounces the pretence of being any- 
 thing more, it is not amiss, and it appears to be generally 
 accepted by those whom it concerns, although, as Mr. 
 Marsden's researches have shown, for about a century it 
 has been applied for a wholly different purpose from that 
 for which it was introduced in the older maritime law, and 
 in a wholly different class of cases. By the Judicature Act, 
 1873 (r), the judicium rusticum is expressly preserved in 
 the Admiralty Division. 
 
 Q)) Marsden on Collisions at Sea, oh. in Tuff v. Wairman, 5 O. B. N. S. 673, 27 
 
 6 (3d edO.and see an article bythe s»me L. J. 0. P. 322. As long ago as 1838 it 
 
 writer in L. Q. R. 11. 357. was distinctly pointed out that " there 
 
 (S) Op. cit. 130. may have been negligence in both par- 
 
 (r) Writers on maritime law state the ties, and yet the plaintiff may be entitled 
 
 mle of the common law to be that when to recover : " Parke B. in Bridge v. 
 
 both ships are in fault neither can Grand Junction S. Co. (1838), 3 M. & W. 
 
 recover anything. This may have been 24t, 248. 
 
 practically so in the first half of the (r) S. 25, sub-s. 9. The first Intention 
 
 century, but it is neither a complete nor of the framers of the Act was othei- 
 
 a correct version of the law laid down wise. See Marsden, p. 134, 8d ed. 
 
AUXILIARY RULES AND PRESUMPTIONS. 589 
 
 rV. — Auxiliai'y Rules and Presumptions. 
 
 Action under difficulty caused by another^s negli- 
 gence. There are certain conditions under which the nor- 
 mal standard of a reasonable man's prudence is peculiarly 
 difficult to apply, by reason of one party's choice of alter- 
 natives, or opportunities of judgment, being affected 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 he held guilty of 
 negligence merely because in that emergency he does not 
 act in the best way to avoid the danger. That which 
 appears the best way to a court examining the matter 
 afterwards at leisure and with full knowledge is not 
 necessarily obvious even to a prudent and skilful man on 
 
 Action under difficulty caused by another's negligence. Agreeing 
 with the text, mde Wesley Coal Co. v. Healer, 8i 111. 126, followed iu 
 Silver Cord 0. M. Co. o. McDonald, 14 Colo. 191; 23 Pac. Rep. 346. 
 Collins V. Davidson, 19 Fed. Hep. 83. In the leading case of Brookhaven 
 Lumber Co. v. Illinois Central K. Co. (68 Miss. 432; 10 So. Rep. 66) 
 where the facts were, tliat by the wrongful act of some unknown person, 
 a switch leading upon a side track was left open, and, beyond this on the 
 side track another switch was misplaced. At night the engineer of a 
 passenger train, running on a down grade thirty-flve miles an hour, at a 
 distance of 300 feet, saw that the first switch was open and promptly 
 applied the air brakes but the train rushed upon the side track, and was 
 derailed at the second switch and ran into a mill shed, which would not 
 have been struck but for that switch, that the engineer did not see. 
 
 In a case against the company by the owner of the property destroyed 
 by fire communicated in the collision the court said : " the engineer was 
 only required to act in view of what he then saw, situated as he was, 
 and that suddenly and unexpectedly confronted with a complicated diffi- 
 culty Impossible to have been foreseen, he is not to be held accountable 
 for failure to exercise that cool and unembarrassed and unerring judg- 
 ment which we, freed from sudden surprise and danger, could now form • 
 and execute. He appears to have done the best he could, situated as he 
 was, and nothing more could reasonably be required of him." 
 
 See Lawrence v. Green, 71 Cal. 421 ; Dutzi v. Geisel, 23 Mo. App. 676 ; 
 Karr ». Parks, 40 Cal. 188; Culyer v. Decker, 20 Hun, 174; Lowery v. 
 
590 NEGLIGIiNCE. 
 
 a sudden alarm. Still less can the party whose fault 
 brought on the risk be heard to complain of the other's 
 error of judgment. This rule has been chiefly applied in 
 maritime cases, where a ship placed in peril by another's 
 improper navigation has at the last moment taken a wrong 
 course (s) : but there is authority for it elsewhere. A per- 
 son who finds the gates of a level railway crossing open, and 
 is thereby misled into thinking the line safe for crossing, is 
 not bound to minute circumspection, and if he is run over 
 by a train the company may be liable to him although " he 
 did not use his faculties so clearly as he might have done 
 under other circumstances " (<)• " ^^^ should not be held 
 too strictly for a hasty attempt to avert a Suddenly impend- 
 ing danger, even though his effort is ill-judged " (u). 
 
 (s) The Bywell. CasOe a879),4P. Div. (f) JV. E. B. Co. v. Wanless (1874), L. 
 
 219; Tlie Tasmania (1890), 15 App. Ca. E. 7 H. L. at p. 16; cp. Slattery's ca. 
 
 223,826, per Lord Herschell; and see '(1878),3 App. Ca. atp. 1193. 
 
 other examples collected In Marsden on («) Briggs t. Union Street By. OSSS), 
 
 Collisions at Sea, pp. 4, 5, 3d ed. 118 Mass. 72, 76. 
 
 Manhattan Ry. Co., 99 N. Y. 158; 52 Am. Eep. 12; Marks v. St. Paul, etc. 
 Ey. Co., 30 Minn. 493; Moore v. Edison, etc. Co., 43 La. An. 792; 9 So. 
 Kep. 433; Lincoln Eapid Transit Co. v. Nichols (Neb.), 55 N. W. Kep. 
 872; Gibbons ». Wilkesbarre etc. St. .Ry. Co., 155 Pa. St. 279; 26 At. 
 Eep. 417. 
 
 The master is not liable for an error of judgment of the servant in 
 extricating an injured person from a perilous situation. " A right of 
 action under such circumstances, can arise only where the injury was 
 Inflicted or increased because of the doing or the omission to do some 
 act or acts the doing of which or the omission to do which was other than 
 the result of an error of judgment as to the means to be used in extri- 
 cating the plaintifE. Any other rule would, where there were various 
 steps in the happening of an action culminating in the injuries suffered, 
 authorize a division of liability as to those various steps, which con- 
 tribute to the happening of the whole accident." Ehing v. B'way & S. 
 A. E. Co., 53 Hun, 323; 6 N. Y. S. Eep. 641. 
 
 But "if one acts unreasonably rashly, or becomes frightened at a trivial 
 occurrence, not calculated to alarm a reasonably prudent man, and thereby 
 brings injury upon himself, there is no liability." South Covington etc. 
 Ey. Co. ■». Ware, 84 Ky. 271; 1 S. "W. Eep. 493. See McLean v. Schuyler 
 Steam Tow-Boat Line, 52 Hun, 43; 4 N. Y. S. Eep. 790. 
 
ANTICIPATED NEGLIGENCE. 591 
 
 No duty to anticipate negligence of others. One 
 
 might generalize the rule, in some such form as this : not 
 only a man cannot with impunity harm others by his negli- 
 gence, but his negligence cannot put them in a worse 
 position with regard to the estimation of default. You 
 shall not drive a man into a situation where there is loss or 
 
 No duty to anticipate negligence of others. " Any citizen in the 
 possession of his own business may everywhere act upon the assumption 
 that no other citizen will by misfeasance, or nonfeasance, cause him an 
 injury, unless there is something in the circumst9,nces of the case which 
 casts upon him the duty of actual vigilance for his own safety. " New 
 York etc. E.-C0. ». A. R. Co., I29N. Y. 602;29 N. E.Eep. 829. "'It is a 
 sound rule of law that it is not contributory negligence not to look out 
 for danger when there is no reason to apprehend any.' Beach Con- 
 trib. Neg. 41, and cases cited. The authorities cited by the learned 
 commentator go much further than the text, and state the rule to be 
 Jhat every one has a right to presume that others, owing a special duty 
 to guard against danger, will perform that duty." Engel v. Smith, 82 
 Mich. 1 ; 46 N. W. Rep. 22. " It cannot, therefore, be said as a matter 
 of law, that one is guilty of negligence who does not anticipate, and 
 take special precaution against, injury from the reckless and Improper 
 conduct of others in riding or driving at an unusual and dangerous rate 
 of 8peed^" Stringer v. Frost, 116 Md. 480; 19 N. E. Rep. 331. Again, 
 in Brosnan v. Sweetzer (127 Ind. 1; 26 N. E. Eep. 555), where the defend- 
 ant had in their store a trap-door in the floor 'in front of the counter. 
 Plaintiff, a customer, walked over this floor while closed, and when 
 attempting to walk back while It was open, though she did not see It, 
 she fell through and was injured. The court said: " She had the right 
 to rely upon the floor being In good, safe condition. She had no reason 
 to suspect danger*" 
 
 See Frank v. City of St. Louis, 110 Mo. 616; 19 S. W. Kep. 938; Bo wen 
 V. Flanagan, 84 Va. 313; Hannem v. Pence, 40 Minn. 127; 41 N. W. Kep. 
 659; Dickson v. HolUster, 123 Pa. St. 430; 23 W. N. C. 128; Galvin ». 
 Mayor, etc. of New York, 112 N. Y. 228; 19 N. B. Rep. 675; Perry v. 
 Smith, 156 Mass. 340; 31 N. E. Rep. 9; Kennayde v. Pacific R. Co., 45 
 Mo. 256; White v. Cincinnati, etc. Ry. Co., 89 Ky. 478; 12 S. W. Rep. 
 936; Jacksonville, T. & K. Ry. Co. v. Peninsular Land etc. Co., 27 Fla. 
 167; 9 So. Rep. 675; Fisk v. "Wait, 104 Mass. 71; Moulton v. Aldrich, 28 
 Kan. 300; Fox v. Sackett, 10 Allen, 633; Damour v. Lyons, 44 la. 276; 
 Harpelo. Curtis, 1 E. D. Smith, 78; Brown v. Lynn, 31 Pa. St. 510; 
 Barton v. Syracuse, 37 Barb. 292; Morrisey v. Wiggins Ferry Co., 47 
 N. W. 621; Thomp. Car. of Pass. 243; Robinson v. Railroad Co., 48 
 Cal. 409. 
 
592 NEGLIGENCE. 
 
 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 ordinary prudence of our fellow- 
 men until we have specific warning to the contrary. The 
 driver of a carriage assumes that other vehicles will 
 observe the rule of the road, the master of a vessel that 
 other ships will obey the statutory and other rules of navi- 
 gation, and the like. And generally no man is bound 
 (either for the establishment of his own claims, or to avoid 
 claims of third persons against him) to use special pre- 
 caution 'against merely possible want of care or skill on the 
 part of other persons who are not his servants or under his 
 authority or control (a;). 
 
 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 com- 
 pany's business to have the door properly fastened (y). 
 On the other hand if something goes wrong which does^not 
 cause any pressing danger or inconvenience, and the pas- 
 senger comes to harm in endeavouring to set /it right 
 himself, he cannot hold the company liable (s). 
 
 Choice of risfes under stress of another's negligence. 
 
 We have a somewhat different case when a person, having 
 an apparent dilemma of evils or risks put before him by 
 
 (a!) See Dcmiel v. Metrop. S. Co. (a) This is the principle applied In 
 
 (1871), L. E. 6 H. L. 45, 40 L. J. C. P. 121. Adams v. L. ^ Y. R. Co. (1869), L. E. 4 C. 
 
 (,y) Gee v. Metrop. JR. Co. (1S73), Ex. P. 739, S8 L. J. 0. P. 277, though (it 
 
 Ch. L. E. 8 Q. B. 161, 42 L. J. Q. B. 105. seems) not rightly In the particular 
 
 There was some diffiorence of opinion case ; see in Bee t. Metrop. B. Co., L. E. 
 
 how fax the question of contributory 8 Q. B. at pp. 161, 173, 176. 
 negligence in fact was fit to be put to 
 the jury. 
 
 Choice of risks under stress of another's negligence. " One may, 
 ■without fault of Ms own, be in a situation where he must choose a peril- 
 ous alternative. The degree of danger, the stress of circumstances, the 
 
CHOICK OF EISKS. 593 
 
 I 
 
 another's default, makes an active choice between them. 
 The principle applied is not dissimilar : it is not necessarily 
 and of itself contributory negligence to do something 
 which, apart from the state of things due to the 
 defendant's negligence, would be imprudent. 
 
 Glayards v. Dethick. The earliest case where this point 
 is distinctly raised and treated by a full Court is Clayards 
 V. Dethick {a). The plaintiff was a cab-owner. The 
 defendants, for the purpose of making a drain, had opened 
 a trench along the passage which afforded the only outlet 
 from the stables occupied by the plaintiff to the street. 
 The opening was not fenced, and the earth and gravel 
 excavated from the trench were thrown up in a bank on 
 that side of it where the free space was wider, thus increas- 
 ing the obstruction. In this state of things the plaintiff 
 attempted to get two of his horses out of the mews. One 
 he succeeded in leading out over the gravel, by the advice 
 of one of the defendants then present. With the other he 
 failed, the rubbish giving way and letting the horse down 
 into the trench. Neither defendant was present at that 
 time (6), The jury were directed " that it could not be 
 
 (a) 12 Q. B. 439 (ISitS). Xhe rale was whether by the defendant's fault he 
 
 laid down by Lord Ellenborough at nisi " was placed In sach a eitnatiou as to 
 
 prins as early as 1816: Jones t. Boyce,l render what he did a -prudent pre- 
 
 Stark. 493, cited by Montague Smith. J., caution for the purpose of self-preser- 
 
 L. E. 4 0. P. at p. 743. The plaintiff was vatlon." 
 
 an outside passenger on a coach, and (6) Evidence was given by the def end- 
 jumped off to avoid what seemed an ants, but apparently not believed by the 
 imminent upset ; the coach was however jury, that their men expressly warned 
 not npset. It was left to the jury the plaintiff against the course he took- 
 
 expectation or hope that others will fully perform the duties resting on 
 them, may all have to be considered." Miner v. Conn. River R. Co., 163 
 Mass. 308 ; 26 N. E. Rep. 995. Thus, a woman being obliged to throw 
 herself on a railroad platform to escape being struck by a piece of tim- 
 ber projecting from a car in motion, had her health impaired by the 
 fright thus occasioned. It was held that she was entitled to recover 
 damages for such impairment of her health. Buchanan o. West Jersey 
 R, Co., 52 N. J. 262; 19 At. Bep. 224. See Austin & N. W. Ry. Co. v. 
 Beatty, 73 Tex. 695; U S. W. Rep. 858. 
 
 38 
 
594 NEGLIGENCE. 
 
 the plaintiff's duty to refrain altogether from coming out 
 of the mews merely because the defendants had made the 
 passage in some degree dangerous : that the defendants 
 were not entitled to keep the occupiers of the mews in a 
 state of siege till the passage was declared safe, first creat- 
 ing 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 properlj"- left to the jury: 
 " the whole question was whether the danger was so obvious 
 that the plaintiff could not with common prudence make 
 the attempt." The decision has been adversely criticised 
 by Lord Bramwell, but principle and authority seem on 
 the whole to support it (c). 
 
 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 be 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 afe best he can at 
 that place (d); notwithstanding that he might, by declining 
 that risk and letting himself be carried on to the next 
 station, have entitled himself to recov^ damages for the 
 loss of time and resulting expense (e). 
 
 Doctrine of Hew York Courts. There has been a line 
 of, cases of this class in the State of New York, where a 
 
 (c) See Appendix B. to Smi th on Neg- N. ^. R. Co. (1S76) , 2 Ex. Div. 248, 46 L. J. 
 Iigenoe,2d ed. I agree with Mr. Smith's Ex. 374. 
 
 observations ad fin., p. 279. (e) ConOra Bramwell L. J. In Iitum v. 
 
 (d) -Eobson v. N. E. jR. Co. (1875-6), L. Corporation of Darlington (1879), 8 Ex. D. 
 E. 10 Q. B. 271, 274, 44 L. J. Q. B. 112 (in 2 at p. 35; but the last-mentioned cases 
 Q. B. Div. 85, 46 L. J. Q. B. 50) ; Hose v. had not been cited. 
 
NEW YORK DOCTEINE. 595 
 
 view is taken less favourable to the plaintiff 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 (/),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 {g). Otherwise 
 it is held that the passenger alights at his own risk. If he 
 wants to hold the company liable he must go on to the next 
 station and sue for the resulting damage (7i ). 
 
 On the other hand, where the defendant's negligence 
 has put the plaintiff in a situation of imminent peril, the 
 plaintiff may hold the defendant liable for the natural 
 consequences of action taken on the first alarm, though 
 such action may turn out to have been unnecessary (»). 
 It is also held that the running of even an obvious and 
 great risk in order to save human life may be justified, as 
 against those by whose default that life is put in peril (Jc). 
 And this seems just, for a contrary doctrine would have 
 the effect of making it safer for the wrong-doer to create a 
 great risk than a small one* Or we may put it thus ; that the 
 law does not think so meanly of mankind as to hold it other- 
 wise than a natural and probable consequence of a helpless 
 person being put in danger that some ablebodied person 
 should expose himself to the same danger to effect a rescue. 
 
 Separation of law and fact in United States. American 
 jurisprudence is exceedingly rich in illustrations of the 
 
 (/) Filer r. N. T. Central M. B. Co. Sickels) 158. Op. Jones v. Boyce, 1 
 
 '(1872), 49 N. Y. (4 Sickels) 47. Stark. 493. 
 
 ig) 63 N. Y. at p. 859. (ft) Mclcert V. Long Island B. B. Co. 
 
 (ft) Burrows V. Erie B. Co. (1876), 63 (1871), 48 N. Y. 602,3 Am. Eep.721 (action 
 
 N. Y. (18 Sickels) 556. by representative of a man killed in 
 
 (I) Coulter V. Express Co. (1874), 56 N. getting a child off the railway track in 
 
 Y. (11 Sickels) 585; Twomley v. Central front of a train which was being negli- 
 
 Parl! B. B. Co. (1878), 69 N. Y. (24 gently driven). 
 
 Separation of law and fact In United States. See Kegligence a 
 Question of Mixed Pact and Law, ante, p. 389 ; and Burden of Proof, 
 ante, p. 390. 
 
596 NEGLIGENCE. 
 
 questions discussed in this chapter, and American cases are 
 constantly, and sometimes very freely, cited and even 
 judicially reviewed (I) in our courts. It may therefore be 
 useful to call attention to the peculiar turn given by legis- 
 lation in many of the States to the treatment of points of 
 " mixed law and fact." I refer to those States where the 
 judge is forbidden by statute (in some cases by the Con- 
 stitution of the State) (m) to charge the jury as to matter 
 of fact. Under such a rule the summing-up becomes a 
 categorical enumeration of all the specific inferences of fact 
 which it is open to the jury to find, and which in the opin- 
 ion of the Court would have different legal consequences, 
 together with a statement of those legal consequences as 
 leading to a verdict for the plaintiff or the defendant. 
 And it is the habit of counsel to frame elaborate statements 
 of the propositions of law for which they contend as limit- 
 ing the admissible findings of fact, or as applicable to the 
 facts which may be found, and to tender them to the Court 
 as the proper instructions to be given to the jury. Hence 
 there is an amount of minute discussion beyond what we 
 are accustomed to in this country, and it is a matter of 
 great importance, where an appeal is contemplated, to get 
 as little as possible left at large as matter of fact. Thus 
 attempts are frequently made to persuade a Court to lay 
 down as matter of law that particular acts are or are not 
 contributory negligence (n). Probably the common 
 , American doctrine that the plaintiff has to prove, as a sort 
 of preliminary issue, that he was in the exercise of due 
 care, has its origin in this practice. It is not necessary or 
 proper for an English lawyer to criticize the convenience of 
 
 (0 E. ^. Lord Esher's judgment in JST. Central R. Co., 128 U. S. 91. In Wash- 
 
 The Bemima, 12 P. DIv. at pp. 77-82. Cp. ington i^c R. R. Co. v. McDade (1889), 
 
 per Lord Hersohell in UiUs v. Arm- 135 XT. S. 554, 564, " counsel lor the de- 
 
 strong, 13 App. Oa. at p. 10. f endant asked the Court to grant twenty 
 
 (m) Stimson American Statute Law, separate prayers for instructions to the 
 
 p. 132, § 605. jury." 
 
 (n) For a strong example see Kane y. 
 
PECULIAR AMERICAN RULES. 5&7 
 
 a rigid statutory definition of the provinces of judge and 
 jury. But English practitioners consulting the American 
 reports must bear its prevalence in mind, or they may find 
 many things hardly intelligible, and perhaps even suppose 
 the substantive differences between English and American 
 opinion upon points of pure law to be greater than they 
 really are. 
 
598 
 
 CHAPTER Xn. 
 
 DUTIES OF INSURING SAFETY. 
 
 Exceptions to general limits of duties of caution. In 
 
 general, those who in person go about an undertaking 
 attended with risk to their neighbours, or set it in motion 
 by the hand of a servant, are answerable for the conduct 
 of that undertaking with diligence proportioned to the 
 apparent risk. To this rule the policy of the law makes 
 exceptions on both sides. As we have seen in the chapter 
 of General Exceptions, jneu are free to seek their own 
 advantage in the ordinary pursuit of business or uses of 
 property, though a probable or even intended result may 
 be to diminish the profit or convenience of others. We 
 now have to consider the cases where a stricter duty has 
 been imposed. As a matter of history, such caseS cannot 
 easily be referred to ajiy definite principle. But the 
 ground on which a rule of strict obligation has been 
 maintained and consolidated by modern authorities is the 
 magnitude of the danger, coupled with the difficulty of 
 
 Exceptions to general limits of duties of caution. In the case of 
 Morgan v. Cox (22 Mo. 376), the court said: "Every person, however, 
 who is performing an act, is bound to take some care in what he is 
 doing. He cannot exercise his own indisputable rights without observ- 
 ing proper precaution not to cause others more damage than can be 
 deemed fairly incident to such exercise. ' Sic utero tuo ut alienum non 
 laedas.'' And therefore, although the mere exercise of a right is not a 
 wrong in any case, any negligence in the exercise of it, that causes a 
 loss to another, is an injury conferring upon him a right of action. It js 
 correctly said, that generally between persons standing in no particiilar 
 rela^on to each other, that alone^ is reasonable care, which, in the 
 judgment of men In general, is proportionate to the probability of 
 injury to others; and consequently, he who does what is more than ordi- 
 narily dangerous, is bound to use more than ordinary care." See Todd 
 V. Cochell, 17 Cal. 98. 
 
ETLANDS V. FLETCHER. 599 
 
 proving negligence as the specific cause in the event of the 
 danger having ripened into actual harm. The law might 
 have been content with applying the general standard of 
 reasonable care, in the sense that a reasonable man dealing 
 with a dangerous thing — fire, flood-water, poison, deadly 
 weapons, weights projecting or suspended over a thorough- 
 fare, or whatsoever else it be 4- will exercise a keener 
 foresight and use more anxious precaution than if it were 
 an object unlikely to cause harm, such as a faggot, or a 
 loaf of bread. A prudent man does not handle a loaded 
 gun or a sharp sword in 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 insure 
 his neighbour against any consequent harm not due to 
 some cause beyond human foresight and control. 
 
 Rylands v. Fletcher. Various particular rules of this 
 kind ( now to be regarded as applications of a more general 
 one) are recognized in our law from early times. The 
 generalization was effected as late as 1868, by the leading 
 case of Rylands v. Fletcher, where the judgment of the 
 Exchequer Chamber delivered by Blackburn J. was adopted 
 in terms by the House of Lords. 
 
 The nature of the facts in Fletcher v. Rylands, and the 
 question of law raised by them, are for our purpose best 
 shown by the judgment itself ^a) : — 
 
 Judgment of Ex. Ch. " It appears from the statement 
 in the case, that the plaintiff was damaged by his property 
 
 (o) I/. E. 1 Ex. at p. 278, perWilles, Smith, and Lush JJ.' For the statements 
 Blackbarn, Keating, Mellor, Montague of fact referred to, see at pp. 267-269. 
 
600 DUTIES OF INSURING SAFETY. 
 
 being flooded by water, which, without any fault on his 
 part, broke out of a reservoir, constructed on the defend- 
 ants' land by the defendants' orders, and maintained by the 
 defendants. 
 
 " It appears from the statement in the case, that the 
 coal under the defendants' land had at some remote 
 period been worked out ; but this was unknown at the 
 time when the defendants gave directions to erect the 
 reservoir, and the water in the reservoir would not have 
 escaped from the defendants' land, and no mischief would 
 have been done to the plaintiff, but for this latent defect 
 in the defendants' subsoil. And it further appears that 
 the defendants selected competent engineers and contrac- 
 tors 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 em- 
 ployed 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 com- 
 municating with old workings. 
 
 "It is found that the defendants personally were free 
 from all blame, but that in fact proper care and skill was 
 not used by the persons employed by them, to provide for 
 the sufficiency of the reservoir with reference^ to these 
 shafts. The consequence was that the reservoir when filled 
 with water burst into the shafts, the water flowed down 
 through them into the old workings, and thence into the 
 plaintiff's mine, and there did the mischief. 
 
 " The plaintiff, though free from all blame on his part, 
 must bear the loss unless he can establish that it was the 
 consequence of some default for which the defendants are 
 responsible. The question of law therefore arises, what is 
 the obligation which the law casts on a person who, like 
 the defendants, lawfully brings on his land something which, 
 though harmless whilst it remains there, will naturally do 
 mischief if it escape out of his land. It is agreed on all 
 
EYLANDS V. FLETCHER. 601 
 
 hands that he must take care to keep in that which be has 
 brought on the land and keeps there, ia order that it may 
 not escape and damage his neighbours ; but the question 
 arises whether the duty which the law casts upon him, under 
 such circumstances, is an absolute duty to keep it in at his 
 peril, or is, as the majority of the 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 
 first be the law, the person who has brought on his land 
 and kept there something dangerous, and failed to keep it 
 in, is responsible for all the natural consequences of its es- 
 cape. 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 person 
 who for his own purposes brings on his lands, and collects 
 and keeps there, anything likely to do mischief if it escapes, 
 must keep it in at his peril, and, if it 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 inquire what excuse would 
 be suflScient. The general rule, as above stated, seems on 
 principle just. The person whose grass or corn is eaten 
 down by the escaping cattle of his neighbour, or whose 
 mine is flooded by the water from his neighbour's reservoir, 
 or whose cellar is invaded by the filth of his neighbour's 
 privy, or whose habitation is made unhealthy by the 
 fumes and noisome vapours of his neighbour's alkali 
 works, is damnified without any fault of his own ; and it 
 seems but reasonable and just that the neighbour who has 
 brou<^ht something on his own property which was not 
 
602 DUTIES OF INSURING SAFETT. 
 
 naturally there, harmless to others so long as it is confined 
 to his own property, but which he knows to be mischievous 
 if it gets on his neighbour's, should be obliged to make 
 good the damage which ensues if he does not succeed in 
 confining it to his own property. But for his act in 
 1 bringing it there, no mischief could have accrued, and it 
 seems but just that he should at his peril keep it there so 
 that no mischief may accrue, or answer for the natural 
 and anticipated consequences. And upon authority, this 
 we think is established to be the law, whether the things 
 so brought be beasts, or water, or filth, or stenches." 
 
 Affirmation thereof by H. Li. Not only was this decis- 
 ion affirmed in the House of Lords (6), but the reasons 
 given for it were fully confirmed. " If a person brings or 
 accumulates on his land anything which, if it should 
 escape, may cause damage to his neighbours, he does so at 
 his peril. If it does escape and cause damage, he is 
 responsible, however careful he may have been, and what- 
 ever precautions he may have taken to prevent the 
 damage " (c). It was not overlooked that a line had to be 
 drawn between this rule and the general immunity given to 
 landowners for acts done in the " natural user" of their 
 land, or "exercise of ordinary rights" — an immunity 
 which extends, as had already been settled by the House 
 of Lords itself (d), even to obviously probable conse- 
 quences. Here Lord Cairns pointed out that the defend- 
 ants 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 Rylands v. 
 Fletcher, as governing the mutual claims and duties of 
 
 (6) Rylands v. Fletcher (1868), L. E 3. id) Chasemore v. Xichards (1859), 7 H. 
 
 H. L. 330, 87 L. J. Ex. 161. L. 0. 349, 29 L. J. Ex. 81. 
 
 (c) Lord Oranworth, at p. 340. 
 
ETLANDS V. FLETCHER. 603 
 
 adjacent landowners, belongs to the law of property rather 
 than to the subject of this work (e). We shall return 
 presently to the special classes of cases ( more or less dis- 
 cussed in the judgment of the Exchequer Chamber) for 
 which a similar rule of strict responsibility had been estab- 
 lished earlier. As laying down a positive rule of law~ 
 the decision in Rylands v. Fletcher is not open to criticism 
 in this country (/). But in the judgment of the Ex- 
 chequer Chamber itself the possibility of exceptions is 
 suggested, and we sBall see that the tendency of later 
 decisions has been rather to encourage the discovery of 
 exceptions" than otherwise. A rule casting the responsi- 
 bility of an insurer on innocent persons is a hard rule, 
 though it may be a just one; and it needs to be main- 
 tained by very strong evidence {g) or on very clear grounds 
 of policy. Now the judgment in Fletcher v. Rylands (h), 
 carefully prepared 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 
 evidently 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 («'), and 
 in part, also, traces, are apparent of the formerly prevalent 
 theory that a man's voluntary acts, even when lawful and 
 free from negligence, are prima facie done at his peril (k), 
 a theory which modern authorities have explicitly rejected 
 
 (e) See Fletcher v. Smith (1877), 2 App. Mass. 508) ; tat distinctly disallowed in 
 
 Ca. 781, 47 L. J. Ex. 4; Humphries v. New York: Losee v. Buchancm, Si Jf. Y. 
 
 Conmm (1877), 2 C. P. D. 239, 46 L. J. 0. (6 Sickels) 476. 
 
 P. 438 ; Swrdman v. North Eastern R. Co. (g) See Seg. v. Commissioners of 
 
 (1S7S), 3 C. P. Dir. 168, 47 L. J. 0. P. 368; Sewers for Essex (1885), 14 Q. B. Div. 561. 
 
 and for the distinction as to " natural (ft) L. R. 1 Ex. 277 sqq. 
 
 course of user," Wilson r. Waddell, H. (4) See especially at pp. 285-6. But 
 
 L. (Sc), 2 App. Ca. 93. can an isolated accident, however mis- 
 
 (/} Judicial opinions still differinthe chievous in its results, be a nuisance? 
 
 United States. See Bigelow L. O. 497- though its consequences may, as where 
 
 500. The case has been cited with a branch lopped or blown down from a 
 
 approval in Massachusetts (.Shipley v. tree is left lying across a highway. 
 
 Mfty Associates, 106 Mas3. 194 ; Gorham v. (/s) L. E. 1 Ex. 286-7, 3 H. L. 341. 
 dross, 125 Mass. 232; Mears v. Dole, 135 
 
^04 DUTIES OF INSURING SAPETT. 
 
 Iq America, and do not encourage in England, except so far 
 as Rylands \. Fletcher may itself be capable of being used 
 for that purpose (?). Putting that question aside, one does 
 not see why the policy of the law might not have been 
 satisfied by requiring the defendant to insure diligence in 
 proportion to the manifest risk (not merely the diligence of 
 himself and his servants^ but the actual use of due care in 
 the matter, whether by servants, contractors, or others), 
 , and throwing the burden of proof on him in cases where 
 ^_the matter is peculiarly within his knowledge. This indeed 
 is what the law has done as regards duties of safe repair, 
 as we shall presently see. Doubtless it is possible to con- 
 sider Rylands v. Fletcher as having only fixed a special rule 
 about adjacent landowners ( m ) : but it was certainly in- 
 tended to enunciatC'something much wider. 
 
 Character of later cases. Yet no case has been found, 
 not being closely similar in its facts, or within some pre- 
 viously recognized category, 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 animals 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 pro- 
 ject over his boundary, so that his neighbour's horse eats 
 of them and is thereby poisoned, is held liable (n)\ and 
 the same rule has been applied where a fence of wire rope 
 was in bad repair, so that pieces of rusted irdn wire fell 
 from it into a close adjoining that of the occupier, who was 
 bound to maintain the fence, and were swallowed by cattle 
 
 (0 See The mtro-glycerime Case (1872), Wilson v. Newberry (1871), L. E. 7 Q. B. 
 
 15 Wall. 624; Broom, v. Kendall (1850), 6 31, 41 L. J. Q. B. 31, Is not InconsiBteut, 
 
 CuBh. 292; Bolmes v. Mather (1875), L, E. lor there it was only averrecl that olip- 
 
 10 Ex. 261, 44 L. J. Ex. 176; Stanley v. pings from the defendants' yew trees 
 
 Poweii. "91, 1 Q. B. 86, 60 L. J. Q. B. 52. were on the plaintiff's land; and the 
 
 (m) M:artlnB.,L. E.6EX. atp. 233. clipping might, for all that appeared, 
 
 (n) Crowhuret v. Amei-sham Burial have been the act of a stranger. 
 Board (1878), 4 Ex. D. 5, 48 L. J. Ex. 109. 
 
CHAEACTEE OF LATEE CASES. 605' 
 
 which died thereof (o). In these cases, however, it was not 
 contended, nor was it possible to contend, that the defend- 
 ants 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 
 projecting 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 Mallard v. Tomlinson (g-) 
 the spwage 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 poisoning the^water 
 which supplied the plaintiff's well, but that he was not 
 bound to do anything. 
 
 Exception of act of God. On the other hand, the rule 
 •in Rylands v. Fletcher has been decided by the Court of 
 Appeal not to apply to damage of which the immediate 
 
 cause is the act of God (?■). And the act of God does not 
 
 \ 
 
 (o) Firth V. Bowling Iron Co. (1878) , 3 (r) Act of God = vis major = deou 
 
 G. P. D. 254, 47 L. J. C. P. 358. fiia : see D. 19. 2. locati oondncti, 25; 
 
 (j)) The former ground was chiefly § 6. The classical signification of "via 
 relied on In Cromhwrst's cose, the latterin maior" is however wider for some pur- 
 Mrth'e. poses ; Nugent v. Smith, 1 0. P. Div. 42S,. 
 
 (q) 29 Ch. Div. 115 (1885), 54 L. J. Oh. 129, per Cookbnrn O. J. 
 454. ^ _^ 
 
 Exception of act ol God. The doctrine stated in the text is sustained 
 by numerous American authorities, vide Long v. Penn.E. Co., 174 Pa. St. 
 343; 23 At. Rep. 4S9; 29 W. N. C. 375; Blythe v. Denver & E. G. Ey. Co., 
 15 Colo. 333; 25 Pac. Eep. 702; Black v. Chicago, B. & Q. E. Co., 30 Neb. 
 197; 46 N. W. Eep. 428; Southern Ex. Co. v. Glenn, 16 Lea, 472; 1 S. W. 
 Eep. 102; Elliott v. Eussell, 10 Johns. 1; Pittsburg, etc., E. Co. v. Gilli- 
 land, 66 Pa. St. 445; International, etc., E. Co. v. Halloren, 63 Tex. 46; 3 
 Am. & Eng. E. Cas. 343; Baltimore, etc., E. Co. v. Sulphur Springs, etc., 
 Dist., 96 Pa. St. 65; 2 Am. & Eng. E. Cas. 166; Phila. etc., E. Co. v. An- 
 derson, 94 Pa. St. 351; 6 Am. & Eng. E. Cas.* 407; Nashville, etc., E. Co. 
 V. Davis, 6 Heisk. 261; Gates v. Southern Minn. E. Co. 28 Minn. 110; 
 2 Am. & Eng. E. Cas. 237; Sheldon v. Sherman, 42 N. Y. 484; Campbell 
 V. Bear Eiver Co., 35 Cal. 679; Chidester v. Consolidated D. Co., 59 Cal- 
 
606 DUTIES OF INSUKING SAFETY. 
 
 necessarily mean an operation of natural forces so violent 
 and unexpected that no human foresight or skill could pos- 
 sibly have prevented its effects. It is enough that the 
 accident should be such as human foresight could not be 
 reasonably expected to anticipate; and whether it comes 
 within this description is a question of fact (s). The only 
 
 (s) Nichols V. Marsland (1875-6), L. E, finally let off by a syatem of weirs. The 
 
 10 Ex. 265, 2 JEx. D. 1, 46 L. J. Ex. 174. rainfall accompanying an extremely 
 
 Note that Lord Brarawell, who in Ry- violent thunderstorm broke the embank- 
 
 lands V. Fletcher took the view that ulti- ments, and the rush of water down the 
 
 matelj prevailed, was also a party to this stream carried away four county bridges, 
 
 decision. The defendant was an owner in respect of which damage the action 
 
 of artificial pools, formed by damming a was brought, 
 natural stream, into which the water was 
 
 179; RlchtoJson v. Kier, 34 Cal. 63; Tenny v. Miners' Ditch Co., 7 Cal. 
 335; Wolf 4).' St. Louis, etc., Co., 10 Cal. 541; Lapham w. Curtis, S Vt. 
 371; Eeed ». Spaulding, 30 N. Y. 630; Wallace o. Clayton, 42 Ga. 443; 
 Bell V. McClintock, 9 Watts, 119 ; Nashville, etc., E. Co. v. King, 6 Heisk. 
 269; Ballentine v. North Mo. E. Co., 40 Mo. 491; Bowman ». Teal, 23 
 Wend. 306; Parsons v. Hardy, 14 Wend. 215; Engster «. West, 35 La. 
 An. 119; 48 Am. Eep. 232; McGrau v. Baltimore, etc.E. Co., 18 W. Va. 
 361; 9 Am. & Eng. E- Cas. 188; Allen v. Mercantile M. Ins. Co., 44- N. Y. 
 437; 4 Am. Eep. 700; VTing w. N.' Y. etc. E. Co., 1 Hilt. 700; Harris?;. 
 Band, 4 N. H. 259; 17 Am. Dec. 421; Lowe v. Moss, 12 111. 477; West«. 
 Berlin, 3 la. 532; Worth v. Edmunds, 52 Barb. 40; Vail v. Pacific E. Co., 
 63 Mo. 230;' Ward u. V^nce, 93 Pa. St. 499; Gillott o. Ellis, 11 111. 579; 
 Allegheny v. Zimmerman, 95 Pa. St. 287; 40 Am. Eep. 649; Colt v, Mc- 
 Meehen, 6 Johns. 159; 5 Am. Dec. 200; Friend v. Wood, 6 Gratt. 195; 
 Eailroad Co. v. Eeeves, 10 Wall. 176; Steele v. McTyer, 31 Ala. 667; 70 
 Am. Dec. 516; McArthur u. Sears, 21 Wend. 190; Hays v. Kennedy, 41 
 Pa. St. 378; Chicago E. Co. ■». Shea, 66 III. 471. 
 
 It seems necessary to emphasize only the rule that the cause must be 
 free from the intervention of any human agency. Michaels v. N. Y. etc., 
 E. Co., 30 N. Y. 564; Steele v. McTyer, 31 Ala. 667; 70 Am. Dec. 516; 
 Campbell v. Moore, Harp. 468; Polock b. Pioche, 35 Cal. 416; Chicago 
 etc., R. Co. !?. Sawyer, 69 111. 285; 18 Am. Eep. 613; Garrison «. Memphis 
 Ins. Co., 19 How. 315; Hall ». Eailroad Cos., 13 Wall. 372; Chevallier v. 
 Straham, 2 Tex. 115; Parker v. Flagg, 26 Me. 319; Merchants' Des. Co. 
 V. Smith, 76 111. 542; Hollister u. Nowlen, 19 Wend. 234; Lyon ». Meils, 
 6 How. 419 ; McCall v. Brock, 5 Strobh. 119 ; Pennsylvania E. Co. ». Fries, 
 87 Pa. St. 284; Hill v. Sturgeon, 28 Mo. 323; McPadden ». Eailroad Co.i 
 44 N. Y. 478; Bowman v. Teall, 23 Wend. 306; Heazle v. Eailroad Co., 76 
 111. 501; Crosby o. Fitch, 12 Conn. 410; Sherman ». Wells, 28 Barb. 403; 
 Eichards v. Gilbert, 5 Day, 415. 
 
RYLANDS V. FLETCHER: EXCEPTIONS. 607 
 
 material element of fact which distinguished the case "re- 
 ferred to from Mr/lands v. Fletcher was that the overiiow 
 which burst the defendant's embankment, and set the 
 stored-up water iu destructive motion, was due to an ex- 
 traordinary 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 
 previously 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 prudence, 
 are nOt numerous, nor are juries, even if able to appreciate 
 so fine a distinction, likely to be much disposed to apply 
 it («). The • authority of Rylands v. Fletcher \s unques- 
 tioned, but JSFichols v. Marsland has practically empowered, 
 juries to mitigate the rule whenever its operation seems too 
 harsh. 
 
 Act of stranger, &c. Again the principal rule does not 
 apply where the immediate cause of damage is the act of a 
 stranger (a;), nor where the artificial work which is the 
 source of danger is maintained for the common benefit of 
 the plaintiff and the defendant {y) ; and there is some 
 o-round for also making an exception where the immediate 
 cause of the harm, though in itself trivial, is of a kind 
 outside reasonable expectation {z). 
 
 {«) SeeiJe^. V. Commusioners of Sewers (a) Carstairs y. Taylor, last note, but 
 
 for Essex (1855) in judgment of Q. B. D., the other ground seems the principal 
 
 14 Q. B. D. at p. 574. one. The plaintiff was the defendant's 
 
 (m) " Whenever the world grows tenant; the defendant occupied the 
 wiser it convicts those that came before upper part of the house. A rat gnawed 
 of negHgence." Bramwell B., L. R. 6 , a hole in a rain-water box maintained by- 
 Ex. at p. 222. But juries do not, unless the defendant, and water escaped 
 the defendant is a railway company. through it and damaged the plaintiff's 
 
 (,x) Box V. Juhb (1879), 4 Ex. D. 76, 48 goods on the ground lloor. ' Questions as 
 
 L. J. Eq. 417. Wilson Y. Newberry \iXll), to the relation of particular kinds of 
 
 L. K. 7 Q. B. 31, 41 L. J. Q. B. 31, Is really • damage to conventional exceptions in 
 
 a decision on the same point. contracts for safe carriage or custody are 
 
 (y) Carstairs V. Taylor (1871), L. E. 6 of course on a different footing. See as 
 
 Ex. 217, 40 L. J. Ex. 29;cp.Jlf(K?ros iJ. Co. to rats in a ship ffarmiton v. Pandorf 
 
 V. Zemindar of Carvaienagaram, L. E. 1 (1887), 12 App. Oa. 518. 
 Ind. App. 364. 
 
608 DUTIES OF INSURING SAFETY. 
 
 Works required or authorized by law. There is yet 
 another exception in favour of persons acting in the per- 
 formance of a legal duty, or in the exercise of powers 
 specially conferred by law. Where a zaminddr maintained, 
 and was by custom bound to maintain, an ancient tank 
 for the general benefit of agriculture in the district, the 
 Judicial Committee agreed with the High Court of Madras 
 in holding that he was not liable for the consequences of 
 an overflow caused by extraordinary rainfall, no neg- 
 ligence 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 intb a mine worked 
 under the canal (c). On the same principle a railway 
 company authorized by Parliament to use locomotive 
 engines on its line is bound to take all reasonable measures 
 of precaution to prevent the escape of fire from its engines, 
 but is not bound to more. If, notwithstanding the best 
 practicable care and caution, sparks do escape and set fire 
 to the property of adjacent owners, the company is not 
 liable (d). The burden of proof appears to be on the 
 company to show that due care was used (e), but there is 
 some doubt as to this {/)■ 
 
 (a) Madras S. Co. v. Zemindar of Car- (d) Vaugham v. Taff Vale R. Co. (1860), 
 
 vatenagaram, L. B. 1 Ind. App. 364; S. C, Ex. Ob. 5 H. & K. 679, 29 L. J. Ex. 217; 
 
 14 Ben. L. E. 209. op. L. R. 4 H. L. 201, 202; Fremantle v. L. 
 
 (6) See per Holloway J. In the Court <f JT. W. R. Co. (1861), 10 C. B. N. S. 89, 31 
 
 below, 6 Mad. H. 0. at p. 184. L. J. C. P. 12. 
 
 (c) Dunn v. Birmingham Canal Co. (e) The escape of sparks has been 
 
 (1872), Ex. Oh. L. B. 8 Q. B. 42, 42 L. J. Q. held to be prima /ocie evidence of negli- 
 
 B. 34. The principle was hardly dis- gence; Piggott\. E. C. R. Co. iVH6),ZC. 
 
 pnted, the point which cansed some B. 229, IS L. J. C. P. 235; op. pcrBlack- 
 
 difEictdty being whether the defendants barn J. In Yaughan v. Taff Vale R. Co. 
 
 were bound to exercise for the plaintiff's (/)' Smith v. L. <f ^. W. R. Co. (1870), 
 
 benefit certain optional powers given by Ex. Ch. L. B. 6 C. P. 14, seems to Imply 
 
 the same statute. the contrary view ; but Piggott v. H. C. R. 
 
 Works required or authorized by law. See this subject and cases 
 cited, ante, pp. 87, 88, 196, 602. 
 
s 
 
 MAINTENANCE OF WORKS. 609 
 
 G. W, R. Co. of Canada y. Braid. Some years before 
 the decision of Rytands v. Fletcher, the duty of a railway 
 company as to the safe maintenance of its works was con- 
 sidered by the Judicial Committee on appeal from Upper 
 Canada (gr). The persons whose rights against the com- 
 pany were in question were passengers iu a train which fell 
 into a gap in an embankment, the earth having given way 
 by reason of a heavy rain-storm. It was held that " the 
 railway company ought to have constructed their works in 
 such a manner as to be^capable of resisting all the violence of 
 weather which in the climate of Canada might be expected, 
 though perhaps rarely, to occur." And the manner in 
 which the evidence was dealt with amounts to holding that 
 the failure of works of this kind under any violence of 
 weather, not beyond reasonable prevision, is of itself 
 evidence of negligence. Thus the duty affirmed is a strict 
 duty of diligence, but not a duty of insurance. Let us 
 suppose now (what is likely enough as matter of fact J that 
 in an accident of this kind the collapse of the embankment 
 throws water, or earth, or both, upon a neighbour's land 
 so as to do damage there. The result of applying the rule 
 in Rylands v. Fletcher, will be that the duty of the railway 
 company as landowner to the adjacent landowner is higher 
 than its duty as carrier to persons whom it has contracted 
 to carry safely ; or property is more highly regarded than 
 life and limb, and a general duty than a special one. 
 
 If the embankment was constructed under statutory 
 authority (as in most cases it would be) that would bring 
 the case within one of the recognized exceptions to Rylands 
 
 Co. was not olted. It may be that in the (jr) G. W. R. Co. of Canada v. Braid 
 
 course of a generation the presumption (1863), 1 Moo. P. C. N. S. 101 . There were 
 
 of negligence has been found no longer some minor points on the evidence 
 
 tenable, experience having shown the (whether one of the sufferers was not 
 
 occasional escape of sparks to be con- travelling at his own risk Ac), which 
 
 sistent with aU practicable care. Such were overruled or regarded as not open, 
 
 a reaction would hardly have found and are therefore not noticed in the 
 
 favour, however, with the Gourt which text, 
 decided Fletcher v. Rylands in the Ex- 
 chequer Chamber. 
 
 39 
 
610' DUTIES OP INSDRING SAFETY. 
 
 V. Fletcher. But a difficulty which may vanish in practice 
 is not therefore inconsiderable in principle. 
 
 Other cases of insurance liability. We shall now 
 
 shortly notice the authorities, antecedent to or inde- 
 
 i pendent of Iiylar\ds v. Fletcher, which establish the rule of 
 
 absolute or all but absolute responsibility for certain special 
 
 risks. 
 
 Duty of keeping in cattle. Cattle trespass is an old 
 and well settled head, perhaps the oldest. It is the nature 
 of cattle and other live stock to stray if not kept in, and 
 to do damage if they stray; and the owner is bound to keep 
 them from straying on the land of others at his" peril, 
 
 Duty of keeping in cattle. In America the common-law rnle, as 
 announced by the text, has obtained in some of the States, but in others 
 it has been modified or abrogated by statute, as not suited to condition 
 of new and sparsely settled countries. Sprague v. Fremont, etc. E. Co., 
 6 Dak. 86; 60 N.- W. Eep. 617; Macon, etc. R. Co. -b. Lester, 30 6a. 914; 
 Hannibal, etci R. Co. v. Kenney, 41 Mo. 271 ; McPheeters v. Hannibal, 
 etc. R. Co., 46 Mo. 22; McKay v. Woodle, 6 Ired. 352; State v. Lamb, 8 
 Ired. 229; Jones c. Witherspoon, 7 Jones L. 5S5; Kerwhacker v. Cleve- 
 land, etc. R. Co., 3 Ohio St. 172; Cincinnati, etc. R. Co. ». Watterson, 4 
 Ohio St. 424; Cleveland, etc. E. Co. v. Elliott, 4 Ohio St. 474; Marietta, 
 etc. E. Co. ■». Stephenson, 24 Ohio St. 48; Cranston v. Cincinnati, etc. E. 
 Co., 1 Handy, 193; Phelps u. Cousins, 29 Ohio St. 136; Campbell ». Brid- 
 well, 6 Oreg. 311 ; Little Rock, etc. E. Co. ». Finley, 37 Ark. 562; Walters 
 V. Moss, 12 Cal. 635; Logan v. Gedney, 38 Cal. 679; Comerfordu. Dupuy, 
 17 Cal. 308; Doherty v. Thayer, 31 Cal. 141; Eichmond v. Sacramento, 
 etc. E. Co., 18 Cal. 361; Morris u. Eraker, 5 Colo. 42S; Willard b. Mathe- 
 sus, 7 Colo. 66; Studwell ». Ritch, 14 Conn. 292; Wright v. Wright, 21 
 Conn. 329; Barnam v. Van Dusen, 16 Conn. 200; Hine v. Wooding, 37 
 Conn. 123; Bissel w. Southwprth, 1 Root, 269; Macon, etc. R. Co. v. 
 Lester, 30 Ga. 914; Georgie R. Co. v. Neely, 56 Ga. 540; Central, etc. E. 
 Co. «. Davis, 19 Ga. 437; Seeley v. Peters, 10 111. 130; Westgate ». 
 Carr, 43 111. 460; Headen v. Eust, 39 111. 186; Stoner v. Shugart, 
 45 111. 76; Chicago, etc. E. Co. ■». Patchin, 16 111. 201; Alton, 
 etc. R. Co. V. Baugh, 14 111. 211; Mi«ier v. Lighthall, 13 111. 609; Ozburn 
 ». Adams, 70 111. 291; D'Arcy ■». Miller, 86 111. 102; Montgomery r>. 
 Handy, 62 Miss. 16; Vicksburg, et«. R. Co. v. Patton, 31 Miss. 156; New 
 Orleans, etc. R. Co. ». Field, 46 Miss. 573; Gorman v. Pacific R. Co., 26 
 
CATTLE TRESPASS. 611 
 
 though liable only for natural and probable consequences, 
 not for an unexpected event, such as a horse not previously 
 known to be vicious kicking a human being (/i). So strict 
 isthe 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 bit- 
 
 (ft) Cox V. Burbidge (1863), 13 C. B. N. S. 430, 32 L. J. C. P. 89. 
 
 Mo. 441; Early?;. Fleming. 16 Mo. 154; Tarwater v. Hannibal, etc. E. Co. 
 42 Mo. 193; Canefox «. Crenshaw, 24 Mo. 199; Chase v. Chase, 15 Nev 
 259 ; Laws v. North Carolina R. Co., 7 Jones L. 468; Nelson v. Stewart, 2 
 Murph. 298; Murray ». South Carolina K. Co., 10 Rich. 227; Banner u. 
 South Carolina R. Co., 4 Rich. 329; s. c. 55 Am. Dec. 678; Wilson o. 
 Wilmington, etc. R. Co., 10 Rich. 52; Blaine v. Chesapeak, etc. R. Co., 9 
 W. Va. 252; Baylor u. Baltimore, etc. R. Co., 9 W. Va. 270; Delaney v. 
 ErricksoD, 11 Neb. 533; Mobile, etc. E. Co. v. Williams, 53 Ala. 595; 
 Jean v. Sandiford, 39 Ala. 317; Polk v. Lane, 4 Terg. 86; State v. Coun- 
 cil, 1 Tenn. 305; Bowers v. Horan, 93 Mich. 420; 53 N. W. Rep. 535; 
 Tenhopen v. Walker (Mich.), 55 N. W. Rep. 657; O'Riley u. Diss, 
 41 Mo. App. 184; Stewart v. Benninger, 138 Pa. St. 437; 27 W. N. C. 
 381; Hardenbnrgh v. Lockwood, 25 Barb. 9; Cowles v. Balzer, 47 Barb. 
 562; Ryan v. Rochester R. Co., 9 How. Pr. 453; Marsh v. N. Y. etc. R. 
 Co., 14 Barb. 364; Heath v. Coltenbach, 5 la. 490; Wagner v. Bissell, 3 
 la. 396; Alger v. Mississippi etc. E. Co., 10 la. 268; Whitbeck u. 
 Dubuque, etc., E. Co., 21 la., 103j DufEus Judd, v. 48 la. 256; 
 Frazier v. Nortinus, 34 la. 82; Broadwell v. Wilcox, 22 la. 568; 
 Hallock V. Hughes, 42 la. 516; Little v. Maguire, 38 la. 560; Little 
 V. Lathrop, 5 Me. 356; Knox v. Tucker, 48 Me. 373; Bradbury v 
 Gilford, 53 Me. 99; Heath v. Eicker, 2 Me. 408; Cool v. Crommet, 13 Me. 
 250; Gooch u. Stephenson, 13 Me. 371; Eastman v. Rice, 14 Me. 419; Lord 
 o. Wormwood, 29 Me. 282; 50 Am. Dec. 589; Webber v. Closson, 36 Me. 
 26 ; Sturtevant «. Merrill, 34 Me. 62 ; N. Y. etc. R. Co. v. Skinner, 19 Pa. 
 St. 298; Gregg v. Gregg, 35 Pa. St. 227; Milligan ». Wehinger, 68 Pa. St. 
 235; Knight v. Albert, 6 Pa. St. 472; 47 Am. Dec. 478; Rangier u. 
 McCreight, 27 Pa. St. 95; Mitchell v. Wolf, 46 Pa. St. 147; Fleming v. 
 Ramsey, 46 Pa. St. 252; Stephens v. Shriver, 25 Pa. St. 78; Jackson u 
 Rutland, etc., E. Co., 25 Vt. 150; 60 Am. Dec. 246; Hurd v. Rutland, etc. 
 R. Co., 25 Vt. 116; Keenan v. Kavanaugh, 44 Vt. 268; Trow v. Vermont, 
 etc., E.'Co., 24 Vt. 488; 68 Am. Dec. 191; Sorenberger ». Houghton, 40 
 Vt. 150; Clark ». Adams, 18 Vt. 425; 46 Am. Dec. 161; Holden v. 
 Shattuck, 34 Vt. 336 ; Wilder v. Wilder, 38 Vt. 678 ; Saxton v. Bacon, 31 
 Vt. 540; McCall?;. Chamberlain, 13 Wis. 640. 
 
612 DUTIES OP INSURING SAFETY. 
 
 ing the plaintiff's mare through a wire fence which sepa- 
 rated their closes (e). The result of the authorities is 
 stated to be " that in the case of animals trespassing on 
 land, the mere act of the animal belonging to a man, 
 which he could not foresee, or which he took all reasonable 
 means of preventing, may be a trespass, inasmuch as the 
 same act if done by himself would have been a tres- 
 pass " (k). 
 
 Blackstone (Z) says that "a man is answerable for not 
 only his own trespass, but that of his cattle also: " but in 
 the same breath he speaks of " negligent keeping " as the 
 ground of liability, so that it seems doubtful whether the 
 law was then clearly understood to be as it was laid down 
 a century lateir in Coxy. Burbidge (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 stray- 
 ing off a highway on which they are being lawfully driven ; 
 in such case the owner is liable only on proof of negli- 
 gence (n) ; and the law is the same for a town street as for 
 a country road (o). Also a man maybe bound by pre- 
 scription to maintain a fence against his neighbour's 
 cattle (^). * 
 
 *' Whether the owner of a dog is answerable in trespass. 
 for every unauthorized entry of the animal into the land 
 of another, as is the case with an ox," is an undecided' 
 
 (j) Ellis T. Loftus Iron Co. (lS7i), L. (n) Goodviinv. Cheeeley (1859), 4H. & 
 
 R. 10 0. P. 10, 44 L. J. C. P. 24, a stronger N. 631, 28 L. J. Ex. 298. A contrary opln- 
 
 case than Lee v. Riley (1865), 18 C. B. N. Ion was expressed by Littleton, 20 Edw. 
 
 8. 722, 84 L. J. C. P. 212, there cited and IV. 11, pi. 10, cited in Read v. Edwarde, 
 
 followed. 17 c. B. N. S. 245, 34 L. J. C. P. at p. 32. 
 
 (4) Brett J., L. E. 10 C. P. at p. 13; (o) TUlett v. Ward C1882), 10 Q. B. D. 
 
 cp. the remarks on the general law in 17, 62 L. J. Q. B. 61, where an ox being 
 
 Smith V. Cook (1875), 1 Q. B. D. 79, 4B L. driven throngh a town strayed into a 
 
 J. Q. B. 122 (Itself a case of contract). shop. 
 
 (0 Comm. Hi. 211. (p) So held as early as 1441-2: Y. B. 
 
 (m) 13 0. B. N. S. 430, 32 L. J. 0. P. 89. 19 H. VI. 33, pi. 68. 
 
DANGEROUS OB VICIOUS ANIMAXS. 613 
 
 point. Th^ better opinion seems to favour a negative 
 answer (q). 
 
 Dangerous or vicious animals. Closely connected with 
 this doctrine is the responsibility of owners of dangerous 
 animals. " A person keeping a mischievous animal with 
 knowledge of 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- 
 ioualy fierce or mischievous species (»■). If the animal is' 
 of a tame and domestic kind, the owner is liable only on 
 
 Ig) Jieadv. :Eda;ards(,18Bt), no. B.TS. there cited. An elephant Is a dangerous 
 
 S. 245, 34 L. J. C. P. 31 ; and see Millea v. animal in England : MBmm-v. Aquarium 
 
 Fawdry, Latch, 119. Co. (1890), 25 Q. B. Div. 2B8, 59 L. J. Q. B. 
 
 (?•) As a monkey: May v. Bwrdett ill. 
 (1846), 9 Q. B. lOl, and 1 Hale, P. 0. 430, 
 
 Dangerous or vicious animals. Of one keeping wild animals a very 
 high degree of care is demanded. Scribner ii. Kelley, 38 Barb. 14; Vre- 
 denburg ii. Behan, 33 La. An. 627; Van Lenven v. Lyke, .1 N. Y, 516; 49 
 Am. Dec. 346; Earl v. Van Alstyne, 8 Barb. 630. 
 
 "With reference to domestic animals, in the case of Losee ». Buchanan 
 (51 N. Y. 476), the court said, "the owner is not responsible for 
 such injuries as they are not accustomed to do, by the exercise of 
 vicious propensities wnich they do not usually have, unless it can 
 be shown that he has knowledge of the vicious habit and pro- 
 pensity. As to all animals, the owner can usually restrain and keep 
 them under control, and if he will keep them he must do so. If he 
 does not, he is responsible for any damage which their well-known 
 disposition leads them to commit. I believe the liability to be based 
 upon the fault which the law attributes to him, and no further actual 
 negligence need be proved than the fact that they are at large unre- 
 strained." 
 
 In the case of Klenberg v. Russell (125 Ind. 631; 25 N. B. Rep. 696), 
 the foregoing is approved and Fletcher v. Rylands cited. " The gist of 
 the action is not the keeping of animals, but the keeping with knowledge 
 of the mischievous propensity, whether proceeding from a savage dis- 
 position qr not." Evans v. McDermott, 49 N. J. L. 163; 6 At. Rep. 653; 
 60 Am. Rep. 605. See Sylvester v. Maag, 155 Pa. St. 227 ; 26 At. Rep. 
 860; Nehr v. State, 35 Neb. 638; 53 N. W. Rep. 589; Robinson v. Marino, 
 3 Wash. St. 434; 28 Pac. Rep. 752,- Fake v. Addicks, 45 Minn! 38; 47 N. 
 
614 DUTIES OF INSURING SAFETT. 
 
 proof that he knew the particular animal to be " accus- 
 tomed to bite mankind," as the common form of pleading 
 ran in the case of dogs, or otherwise vicious; but when 
 such proof is supplied, the duty is absolute as in the for- 
 mer case. It is enough to show that the animal has on 
 foregoing occasions manifested a savage disposition, 
 whether with th6 actual result of doing mischief on any of 
 those occasions or not (s). But the necessity of proving 
 the scienter, as it used to be called from the language of 
 pleadings, is often a greater burden on the plaintiff than 
 that of proving negligence would be ; and as regards injury 
 . to cattle or sheep it has been done away with by statute. 
 
 («) Worth Y. Gilling (1866), L. R. 2 O. ^aMtcjn v. CoseZte (1872), L. K. 7 Ex. 325, 
 P. 1. A6 to what is sufficient notice to 41 L. J. Ex. 167; ^pplebee v. Percy (1874), 
 the delendant through his servants, L. B. 9 C. P. 647, 43 L. J. 0. P. 365. 
 
 W. Eep. 50; Vrooman v. Lawyer, 13 John^. 339; Durham v. Musselman, 2 
 Blackf. 96; Smith v. Causey, 22 Ala. 568; Wormley v. Gregg, 65 III. 251; 
 Dearth v. Baker, 22 Wis. 73; Mann v. Weiland, 81 Pa. St. 243; Coggswell 
 d. Baldwin, 15 Vt. 404; Partlow v. Haggarty, 35 Ind. 178; Williams v. 
 Moray, 74 Ind. 25; Wolf v. Chalker, 31 Conn. 121; Oakes v. Spaqlding, 
 40 "Vt. 347; Kittredge v. Elliott, 16 N. H. 77; Rider v. White, 65 N. H. 54; 
 Lyons v. Merrick, 105 Mass. 71; Llnnehan v. Simpson, 126 Mass. 510; 
 Coggswell V. Baldwin, 15 Vt. 404 ; Marble v. Koss, 124 Mass. 44 : Miller 
 V. Curry, 122 Ind. 403; 24 N. B. Eep. 216; State v. McDermott, 49 N. J. 
 L. 163; 6 At. Rep. 653; McGuire v. Ringrose,'41 La. An. 1029; 6 So. Eep. 
 895; Shaw v. Craft, 37 Fed. 317; Staetter v. McArthur, 33 Mo. App. 218; 
 Laherty v. Hogan, 13 Daly, 533; Bell v. Leslie, 24 Mo. App. 661; Kin- 
 moulh V. McDougall, 64 Hun, 636; Hammond v. Melton, 42 111. App. 
 186; Garrison v. Barnes, Id. 21. 
 
 In several of the United States, statutes have been passed holding the 
 owners of dogs to a greater responsibility than at common law. See 
 Smith V. Montgomery, 52 Me. 178; Orne c. Roberts, 51 N. H. 110; Jones 
 V. Sherwood, 37 Conn. 466; Smith v. Skut, 31 Ba^ji. 33,3 ; Osincup tj. 
 Nichols, 49 _ Barb. 145; Auchmuty v. Ham, 1 Denio, 495; Fairchild ». 
 Bentley, 30 Barb. 147; PafE v. Slack, 7 Pa. St. 254; Campbell©. BrowB, 
 19 Pa. St. 359; Kerr ». O'Connor, 6^ Pa. St. 341; Mitchell «. Glapp, 12 
 Cush. 278; Pressey v. Wirth, 3 Allen, 191; ifirewer v. Crosby, 11 Gray, 29; 
 Smith V. Cansey, 22 Ala. 568; Swift ». Applebone, 23 Mich. 252 ; Elliott ». 
 Herz, 29 Mich. 202; Chunot v. Larson, 43 Wis. 53^; 28 Am. Eep. 567; Job 
 «. Harlan, 13 Ohio St. 485; Grles v. Zeck, 24 Ohio St. 329; Mercale ». 
 Down, 64 Wis. 323. ' ■ 
 
FIKE AND DANGEROUS THINGS. 615 
 
 And the occupier of the place where a dog is kept is pre- 
 sumed for this purpose to be the owner of the dog {i). 
 
 The word " cattle " includes horses (w) and perhaps 
 pigs (v). 
 
 Fire, firearms, etc. The risk incident to dealing with 
 fire, firearms, explosive or highly inflammable matters, 
 corrosive or otherwise dangerous or noxious fluids, and 
 (it is apprehended) poisons, is accounted by the common 
 law among those whioh subject the actor Jo strict responsi- 
 bility. Sometimes the term " consummate care " is used 
 to describe the amount of caution required: but it is 
 
 (i) 28 & 29 Vict. c. 60 (A. D. 1865). statute of public police regnlations out- 
 There Is a similar Act for Scotland, 26 &, side the scope of this work. 
 27 Vict. o. 100. See Campbell on Negli- (m) Wright v. Pearson (1869), L. E. i 
 gence, 2nd ed. pp. 53-B5. Further pro- Q. B. 582. 
 
 tection against mischievous or master- (») Child v. Jleam (1874), L. R. 9 Ex. 
 
 less dogs is given by 34 & 35 Vict. c. 56, a. 176, 43 L. J. Ei. 100 (on a different Act). 
 
 Fire, flre-arma, etc. In the Vermont case of Hadley v. Cross (34 Vt. 
 586) it vfas held, that one using explosive machinery and substances in- 
 volving the personal safety and lives of others is required to exercise 
 nothing less than the most watchful care and the most active diligence. 
 See Wellington «;. Downer KerosineOil Co., 104 Mass. 68; Farth». Foster, 
 7 Kobt. 484; Losee v. Buchanan, 61 N. T. 476; Marshall v. Wellwood, 38 
 K. J. L- 339; Spencer v. Campbell, 9 Watts & S. 32; McAndrews v. 
 CoUerd, 42 N. J. L. 189; 36 Am. Bep. 508; Devlin v. Gallagher, 6 Daly, 
 494 ; Koster v. Noonan, 8 Id. 231 ; Beauchamp v. Saginaw Mining Co., 
 60 Mich. 163; 45 Am. Rep. 30; Hay v. The Cohoes Co., 2 N. Y. 169; Col- 
 ton V. Onderdonk, 69 Cal. 155; Allison v. Western, etc. E. Co., 64 N. C. 
 
 383. 
 
 One who sells gun-powder to an inexperienced child is lialjle for injur- 
 ies to him from its explosion. Carter v. Towne, 98 Mass. 5Q7. So as to 
 a toy pistol. Binford v. Johnson, 82 lad. 426 ; 42 Am. Rep. 608. For 
 the nnlawful or negligent discharge of fire-works, resulting in injury, 
 one is liable. Colvin v. Peabody, 165 Mass. 104r Conklin v. Thompson, 
 29 Barb. 218; McDade v. City of Chester (Pa.), 20 Am. & Eng. Corp. 
 Cas. 440; Bradley v. Andrews, 61 Vt. 530; Fisk w. Wait, 104 Mass. 71; 
 Jenne v. Sutton, 43 N. J. L. 267; 39 Am. Rep. 578. 
 
 In Callahan v. Warne (40 Mo. 131) one exposing liquid poison resem- 
 bling water in jars on his premises is liable for the death of a laborer 
 who by mistake drank the poison. See Henry v. Dennis, 93 Ind. 462; 47 
 Am,, Rep. 378; Bishop v. Weber, 139 Mass. 411; 1 N. E. Rep. 154. 
 
616 DUTIES OF INSOEIXG SAFETY. 
 
 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 unsuc- 
 cessful diligence on the defendant's part was held to 
 exonerate him. 
 
 Duty of keeping in fire. 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 kfeep his own fire so that no damage in 
 any wise happen to his neighbour (aj). In declaring on 
 this custom, however, the averment was •* ignem suum tarn 
 negligenter custodivit : " and it does not appear whether the 
 allegation 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 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 described (in Lord Ray- 
 mond's report) as " case grounded upon 'the common 
 custom of the realm for negligently keeping his fire^" 
 8emble, if the fire were carried by sudden tempest it would 
 
 (k) Y. B. 2 Hen. IV. 18, pi. 5. This may (y) Blaokstone (1. 431) seems to assume 
 
 be fonudea on ancient Germanic ens- negligence as a condition of liability, 
 
 torn : op. LI. Langob. cc. 117, U8 (a., d. (£) Tvhervil or Tubermlle T. Stamp, 
 
 613), where a man who carries Are more 1 Salk. 13, s. c. 1 Ld. Saym. 261. 
 than nine feet from the hearth is said to 
 
 do so at his peril. i 
 
 Duty of Iseeping in Are. In the United States the right of a person to 
 kindle a flre on his own land, using reasonable, care and diligence to pre- 
 vent its spreading and doing injury, to the lands of others, is recognized. 
 But " a man who negligently sets flre on his own land, and keeps it neg- 
 ligently, is liable to an action at common law for any injury done by the 
 spreading or communication of the flre directly from his own land to the 
 property of another, whether through the air or along the ground, and 
 whether he might or might not have reasonably anticipated the particu- 
 lar manner and direction in which it is actually communicated." Higgins 
 V. Dewey, 107 Mass. 494. See Tourtellot ii. Bosebrook, 11 Mete. 460; 
 
CARRYING FIRE IN LOCOMOTIVES. 617 
 
 be excusable as the act of God. Liability for domestic 
 fires has been dealt with by statute, and a man is not 
 now answerable for damage done by a fire which began 
 in his house or on his land by accident and without negli- 
 gence (a). 
 
 The use of fire for non-domestic purposes, if we may 
 coin the phrase, remains a ground of the stricest responsi- 
 bility. 
 
 Carrying fire in locomotives. Decisions of our own 
 time have settled that one who brings fire into dangerous 
 proximity to his neighbour's property, in such ways as by 
 running locomotive engines on a railway without express 
 statutory authority for their use (6), or bringing a traction 
 engine on a highway (c), does so at his peril. And a com- 
 pany authorized by statute to run a steam-engine on a 
 
 (o) 14 Geo. m. c. 78, s. 86, as interpre- 597, 49 L. J. Q. B. 428. The use of trao- 
 
 ted In MUiter v. PMppard (1847), 11 Q. Hon engines on highways la regulated 
 
 B. 347, 17 L. J. Q. B. 89. There was an by statute, but not authorized In the 
 
 earlier statute of Anne to a like effect; sense of diminishing the owner's lia- 
 
 1 Blackst. Comm. 431 ; and see per Cur. bility for nuisance or otherwise ; see the 
 
 in FUliter t. PMppard. It would seem sections of the Locomotive Acts, 1861 
 
 that even at common law the defendant and 1865, in the judgment of Mellor J. at 
 
 would not be liable unless he knowingly p. 598. The dictum of Braiuwell L. J at 
 
 lighted or kept some Are to begin with; p. 601, that FaiighanY. Taff Vale B. Co. 
 
 for otherwise how could it be described (1860). Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 
 
 as ignis suust 247, p. 439, above, was wrongly decided, 
 
 (i) Jones y. Festiniog R. Co. (1868), L. is extra-judicial. That case was not 
 K. 3 Q. B. 733, 37 L. J. Q. '&. 214. Here only itself decided by a Court of co- 
 diligence was proved, but the company ordinate authority, but has been ap- 
 held nevertheless liable. The rule was proved in the House of Lords ; Hammer- 
 expressly stated to be an application smSth R. Co. v. Brand (1869) , L. B. 4 H. L. 
 of the wider principle of Rylands v. at p. 202^ and see the opinion of Blaok- 
 Metcher; sec per Blackburn J. at p. 736. burn J. at p. 197. 
 
 (c) Powell V. VaU (1880), 6 Q. B. Dlv. 
 
 Barnard ». Poor, 21 Pick. 380; Powers o. Craig, 22 Neb. 621; 35 N. W. 
 Bep. 888; Sweeny v. Merrill, 38 Kan. 216; 16 Pac. Rep. 464; Bichards ». 
 Schleusener, 41 Minn. 49; 42 N. W. Bep. 599; John Mouat Lumber Co. v. 
 Wilmore, 15 Colo. 136; 25 Pac. Eep. 556; Delaware, etc. E. Co. o. Salmon, 
 39 N. J. L. 299, disapproving 35 N. Y. 210, and 62 Pa. St. 353. But see 
 MoGibbon v. Baxter, 51 Hun, 587; 4 N. Y. S. Rep. 382; Louisville, etc., 
 By. Co. ». Hart, 119 Ind. 273; 21 N. E. Eep. 753; Clark v. Foot, 8 Johns. 
 421 ; Stewart v. Hawley, 22 Barb. 619. 
 
618 DUTIES OF INSUKING SAFETY. 
 
 highway still does so at its peril as regards the safe conditiou 
 of the way (d). 
 
 It seems permissible to entertain some doubt as to the 
 
 historical foundation of this doctrine, and in the modern 
 
 practice of the United States it has not found acceptance (e). 
 
 -In New York it has, after careful discussion, been expressly 
 
 disallowed (/). 
 
 Fire-arms: Dixon v. Bell. Loaded fire-arms are re- 
 garded as highly dangerous things, and persons dealing 
 with them are answerable for damage done by their explo- 
 sion, even if they have used apparently sufficient precau- 
 tion. A man sent his maiden servant to fetch a flint-lock 
 gun which was kept loaded, with a message to the master 
 of the house to take out the priming first. This was done, 
 and the gun delivered to the girl; she loitered on her 
 errand, and (thinking, presumably, that the gun would not 
 go ofi") 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, per- 
 haps as much care as would commonly be thought enough. 
 
 (,0) Sadler y. South Staffordshire, ^c. 476; theownerof a steamboilerwasheld 
 
 Tramways Co. (1889),23 Q. B. Div. 17, 58 not liable, Independently of negligence, 
 
 L. J. Q. B,421 (oar ran ofi line through a for an explosion which threw it Into the 
 
 defeotin the points: the Unedid not be- plaintiff's buildings, for the previous 
 
 long to the defendant company, who authorities as to Are, uniformly holding 
 
 had running powers over it). that In order to succeed the plaintiff 
 
 (e) it appt ars to be held everywhere must prove negligence, see at pp. 487-8. 
 
 that unless the original act is in itself iijrJaneJs v. i<'Ie<cAer is disapproved as be- 
 
 nnlawf ul, the gist of the action is negli- Ing in conflict with the current of 
 
 gence ; see Cooley on Torts, 589 — 594. American authority. 
 
 {/) Losee v. Buchanan (1873), SIN. T. 
 
 Fire-arms. In the case of Morgan v. Cox (22 Mo. 373), Dixon v. Bell, 
 supra, is cited ; and upon ttiis subject the court said, that one handling 
 a fire-arm is liable for injuries resulting from its accidental discharge,, 
 unless the .injury was inevitable, and utterly without the fault of the 
 alleged wrong-doer. See Chataigne v. Bergeron, 10 La. An. 699; Chiles 
 •0. Drake, 2 Mete. (Ky.) 146; Moody v. Ward, 13 Mass. 299; Castle o. 
 Dnnyee, 2 Keyes, 169; Ehodes v. Roberts, 1 Stew. 145; Cale v. Fisher, 
 11 Mass. 137. 
 
EXPLOSIVES AND POISONS. 619 
 
 " 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 of doing harm " {g). This 
 amounts to saying that in dealing with a dangerous instru- 
 ment of this kind the only caution that will be held adequate 
 in point of law is to abolish its dangerous character alto- 
 gether. Observe that the intervening negligence of the ser- 
 vant (which could "hardly by any ingenuity have been 
 imputed to her master as being in the course of her em- 
 ployment) was no defence. Experience unhappily 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 and other dangerous goods. On a like 
 principle it is held that people sending goods of an explo- 
 sive or dangerous nature to be carried are bound to give 
 reasonable notice of their nature, and, if they do not, are 
 liable for resulting damage. So it was held when 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 (A). The same 
 rule has been applied in British India to the case of an 
 explosive mixture being sent for carriage by railway with- 
 out warning of its character, and exploding in the railway 
 
 Ig) Dixon v. Sell (1816), 5 M. & S. 198, ground taken by the Court (Lord Ellen- 
 
 and in Bigelow L. 0. 568. It might have borough 0. J. and Bayley J.), 
 been said that sending an incompetent (ft) Farrtmt v. Barnes (1862), 11 C. B. 
 
 person to fetch a loaded gun was evi- N. S. 553, 31 L. J. O. P. 137. The duty , 
 
 deuce of negligence (see the first count seems to be Sntecedeht, not incident, to 
 
 of the declaration) ; but that is not the the contract of carriage. 
 
 Explosives and other dangerous goods. Sustaining the text, vide 
 The Nitro-Glycerine Case, 15 Wall. 624; Barney «. Burstenbinder, 7 Laos. 
 210; Sofleld v. Sommers, 9 Ben. 526. 
 
620 DUTIES OF INSURING SAFETY. 
 
 company.'s office, where it was being handled along with 
 other goods (i) ; 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 damage 
 actuaNy resulting, have been increased by another consignor 
 independently sending other dangerous goods by the same 
 conveyance (k). 
 
 Gas escapes. Gas (the ordinary illuminating coal-gas) 
 is not of itself, perhaps, a dangerous thing, but with 
 atmospheric air forms a highly dangerous explosive mixture, 
 and also makes the mixed atmosphere incapable of support- 
 ing life ( I). Persons undertaking to deal with it are there- 
 fore bound, at all events, tcf use all reasonable diligence to 
 prevent an escape which may have such results. A gas- 
 fitter left an imperfectly connected tube in the place where 
 
 («) Lyell T. Ganga Dai, I. L, B. 1 All. consigned to the railway company wlth- 
 
 60. out notice of their character: held on 
 
 (Jc) Boston ^ Albcmy B. B. Co. T. Shcmly demnrrer that both manufacturers were 
 
 (1871), 107 Mass. 568; ( " dualin," a nitro- rightly sued in one action by the com- 
 
 glycerine compound, and exploders, had pany). 
 
 been ordered by one customer of two (,1) See Smith v. Boston Gas laght Co., 
 
 separate makers, and by them separately 129 Mass. 818. 
 
 Gas escapes. The American authorities agree with the statement of 
 the text. In the case of Chisholm v. Atlanta Gas Light Co. (67 Ga. 29), 
 the court said: -'The principle applicable to the defendant in this, that 
 in the conduct of its busineag as a gas producer and furnisher thereof to 
 its customers, it is bound to use such ordinary skill and diligence as is 
 proportioned to the delicacy, diflSculty and nature of that particular bus- 
 iness." See Powers v. Boston Gas-Light Co., 158 Mass. 267; 33 N. E. 
 Eep. 623; Holly ». Boston Gas-Light Co., 8 Gray, 134; Lanigan v. New 
 York Gas-Light Co., 71 N. Y. 29; Oil City Gas Co. v. Robinson, 99 Pa. 
 St. I; Bartlett v. Boston Gas-Light Co., 117 Mass. 534; 20 Am. & Eng. 
 Corp. Cas.' 380; Schmeer v. G^s-Light Co., 65 Hun, 878; 20 N. Y. S. 
 Eep. 168; Lowell Gas-Light Co., 3 Allen, 410; Hutchinson v. Boston 
 Gas-Light Co., 122 Mass. 219; Schermerhorn u. The Metropolitan Gas- 
 Light Co., 5 Daly, 144; Louisville Gas Co. v. Gutenkuntz, 82 Ky. 432; 
 'Lannen v. The Albany Gas-Light Co., 44 N. Y. 459; 46 Barb. 264; 
 Butcher a. Providence G. Co., 12 R. 1. 149; Dillon v. Washington G. Co., 
 1 McArthur, 626 ; Koelsch v. Philadelphia Co., 152 Pa. St. 365; 25 At. 
 Bep. 622; 31 W. N. C. 341. 
 
POISONS. 621 
 
 he was working under a contract with the occupier; a third 
 person, a servant of that occupier, 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 inde- 
 pendent of contract " (m). 
 
 Poisonous drugs : Thomas v. Winchester. Poisons can 
 ■ do as much mischief as loaded fire-arms or explosives, 
 though the dangef and the appropriate precautions are 
 different. 
 
 A wholesale druggist in New York purported to sell 
 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 extract was 
 sold to a country practitioner, and by him to a customer, 
 who took it as and for extract of dandelion, and thereby 
 
 (m) Parry v. Smith (1879), i 0. P. D. 325, 48 L. J. C. P. 731 (Lopes J.). STegli- 
 gence was found as a fact. 
 
 - . 
 
 Poisonous drugs. In Davidson p. Nichols (11 Allen, 514), Thomas v. 
 Winchester, supra, is limited, In its application, to deadly poisons 
 dangerons to hnman life, and it is held that the sale of an article in itseU 
 harmless, and which becomes dangerous only by being used in combina- 
 tion with some other article, without any knowledge by the vendor that 
 it is to be used in such combination, does not render him liable to an 
 action by one who purchases the article from the original vendee, and 
 who is Injured by using it in dangerous combination with another article ; 
 although by mistake the article actually sold is different from that which 
 Is intended to be sold. 
 
 If an apothecary negligently sells a deadly poison as and for a harm- 
 less medicine, to A., who. buys it to'administer to B., a dose of it, as a 
 medicine from which he dies in a few hours,, a right of action jn tort 
 against the apothecary survives to B's. administrator. Norton v. Sewall, , 
 106 Mass. 143; 8 Am. Eep. 298; Brunswig v. White, 70 Tex. 504; 8 S. 
 W. Rep. 85; Davis v, Guiarnieri, 45 Ohio St. 470; loN. E. Rep. 350; Wal- 
 ton V. Booth, 34 La. An. 913. But see Ray v. Burbank, 61 Ga. 505; 54 
 Am. Rep. 103; Gould v. Slater Woolen Co., 147 Mass. 315; Wohlbohrt v. 
 Beckert, 92 N. Y. 490; 12 Abb. N. Cas. 478; 44 Am. Rep. 406. 
 
622 DUTIES OF INSURING SAFETY. 
 
 was made seriously ill. The 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 consequence of the sale of belladonna by means 
 of the false label." And the existence of a contract 
 between the defendant and the immediate purchaser fi'om 
 him could make no difference, as its non-existence would 
 have made none. " The plaintiff's injury and their remedy 
 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 " (n). 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. £ell. 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 other- 
 wise distinguishable only by minute examination), it is a 
 more than probable consequence that some one will take it 
 as and for dandelion and be the worse for it : and this with- 
 out any action on the part of others necessarily involving 
 want of due care (o). 
 
 It can hardly be said that a wrongly labelled poison, 
 whose true character is not discoverable by 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. 
 
 Difficulties felt in England: George v. Skivlngton. 
 
 Nevertheless difficulties are felt in England about admitting 
 
 (n) Thomas -v. Winchester (1852), 6 }>(. mediate dealers; the Oonrt, however, 
 
 Y. 397, Bigelow L. C. 602. were ot opinion that this was im- 
 
 (o) The jary found that there was not material, 
 any negligence on the part of the inter- 
 
POISONS. 623 
 
 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 {p). In 1869 the Court of Ex- 
 chequer made a rather hesitating step towards it, putting 
 their judgment 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 whom it in 
 fact injured {q). 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 erroneous, as the 
 judgment in Thomas v. Winchester carefully and clearly 
 shows. Whether that case was well decided appears to be 
 a perfectly open question for our courts (»•). In the pre- 
 sent writer's opinion it is good law, and ought to be fol- 
 lowed. Certainly it comes within the language of Parke 
 B. in Longmeid v. HolUday (s), which does not deny legal 
 responsibility " when any one delivers to another without 
 notice an instrument in its nature dangerous under particu- 
 lar circumstances, as a loaded gun which he himself has 
 loaded, and that other person to whom it is delivered is in- 
 jured thereby; or if he places it in a situation easily acces- 
 sible to a third person who sustains damage from it." In 
 that case the defendant had sold a dangerous thing, namely 
 an ill-miade lamp, which exploded in use, but it was 
 found as a fact that he sold it in good faith, and it was not 
 
 (p) See per Brett M. R., Seaven T. eluded from free discnBslon of the prln- 
 
 Pender (1883), 11 Q. B. DIv. at p. 514, in a clple involyed. In Langridge v. Levy 
 
 judgment which Itself endeavours to lay (1837), 2 M. & W. at p. 530, the Court was 
 
 down a much wider rule. somewhat astute to avoid discussing 
 
 (5) George v. SHvington (1869), L. E. 5 that principle, and declined to commit 
 
 Ex. 1, 38 L. J. Ex. 8. itself. iJfaon v. MUs cited by Parke B. 
 
 (J-) Dixon V. Bell (1816), 5 M, & S. 198, as a strong case, and apparently with 
 
 Bigelow L. C. 568 (,3upra, p. 446), has hesitating acceptance, in Longmeid v. 
 
 never been disapproved that we know Holliday (1851), 6 Ex. 761, 20 L. J. Ex. 
 
 of, but has not been so actively followed 430. 
 that the Court of Appeal need be pre- (s) 20 L. J. Ex. at p. 433. 
 
624 DUTIES OP INSDBIN& SAFETY. 
 
 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. 
 
 Duties of occupiers of buildings, &c., in respect of 
 safe repair. We now come to the duties imposed by law 
 on the occupiers of buildings, or persons having the control 
 of other structures intended for human use and occupation, 
 in respect of the safe condition of the building or structui-e. 
 Under this head there are distinctions to be noted both as 
 to the extent of the duty, and as to the persons to whom it 
 is owed. 
 
 Extent of the duty. The duty is founded not on 
 ownership, but on possession, in other words, on the struct- 
 ure being maintained under the control and for the pur- 
 poses of the person held answerable. It goes beyond the 
 common doctrine of responsibility for servants, for the 
 occupier cannot discharge himself by employing an inde- 
 pendent contractor for the maintenance and repair of the 
 structure, however careful he may be in the choice of that 
 
 Extent of tlie duty. Concurring with the statement of the text, the 
 American oases hold that a lessor occupying a building is prima facie 
 liable to third persons for damages accruing to them from defects 
 therein. O'Connor v. Andrews, 81 Tex. 28; 16 S. W. Rep. 628; Beadman 
 p. Conway, 126 Mass. 374; Mellen v. Morrill, 126 Mass. 545;Khroni7. 
 Brock, 114 Mass. 516; Sinton v. Butler, 40 Ohio St. 158 ; Kalis «. Shattuck, 
 69 Cal. 593; 58 Am. Eep. 668; Cleveland Co-operative Stove Co. o. 
 Wheeler,. 14 111. App. 112; Baird v. Shipman, IS 111. 16; 23 N. E. Rep. 
 384; Odell v. Solomon, 99 N. W. 637; Moore v. Ocean Steam Nav. Co., 
 24 Fed. Rep. 237; Onderdonk v. Smith, 21 Fed. Rep. 588; Pennsylvania 
 R. Co. V. Atha, 22 Fed. Rep. 921. 
 
 But there are cases where the owner and not the occupant of the 
 property may be liable. See Marshall v. Heard, 59 Tex. 267, citing 
 Staple V. Spririz, 10 Mass. 72; Durant u. Palmer, 29 N. J. L. 544; Irvine 
 V. Wood, 51 N. Y. 228. 
 
CONBITION OF BUILDINGS. 625 
 
 contractor. Thus the duty is described a*s being impersonal 
 rather than personal. Personal diligence on the part of 
 the occupier and his servants is immaterial. The structure 
 has to be in a reasonably safe condition, so far as the 
 exercise of reasonable care and skill can make it so (t). 
 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 date of the settled rule : Indermanr v. 
 Dames. The separation of this rule from the ordinary 
 law of negligence, which is inadequate to account for it, 
 has been the work of quite recent times. As lately as 
 1864 (m) the Lord Chief Baron Pigot (of Ireland), in a 
 very careful judgment, confessed the difficulty of discov- 
 ering 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 exposi- 
 tion which has since been regarded on both sides of the 
 Atlantic as a leading authority (a;). The plaintiff 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 on an upper 
 floor of the building, he fell through an unfenced shaft 
 which was used in working hours for raising and lowering 
 susrar. It was found as a fact that there was no want of 
 reasonable care on the plaintiff's part, which amounts to 
 saying that even to a careful person not already acquainted 
 with the building the danger was an unexpected and con- 
 cealed one. The Court held that on the admitted facts 
 
 (<) Per Montague Smith J. in Ex. Ch., 460. See, however, ^itarmon v. i«me« 
 
 Prancii V. CockreU (1870), Ex. Ch. L. E. 5 (1840) , 6 M. & W. at p. 510, where there is 
 
 Q. B. 501, 513, 39 L. J. Q. B. 291. Other a suggestion of the modem rule, 
 
 cases weU showing this point are 7^'c*ar</ (x) /TMfejTBaMr v. JJomeg (1866), L. R. 1 
 
 V. Snath, 10 0. B. N. S. 470 ; John v. Bacon C. P. 274, SS L. J. C. P. 184, 2 O. P. 311, 36 
 
 (1870), L. n. 5 O. P. 437, 39 X.. J. C. P. 365. L. J. C. P. 181, constantly cited in later 
 
 («) Sullivan T. Waters, 14 Ir. C. L. R. cases, and reprinted in Blgelow L. C. 
 
626 DUTIES OF INSURING SAFETY. 
 
 the plaintiff wjis in the building as "a person on lawful 
 business, in the course of fulfilling a contract in which 
 both the plaintiff 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 in the course of business, upon his invitation express 
 or implied. The common case is that of a customer in 
 a shop : but it is obvious that this is only one of a 
 class 
 
 " The class to which the Customer belongs includes per- 
 sons who go not as mere volunteers, or licensees, or guests, 
 or servants, or persons whose employment is 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 consider 
 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 sufferer, must be determined 
 by a jury as a matter of fact " (y). 
 
 The Court goes on to admit that " there was no absolute 
 duty to prevent danger, but only a duty to make the place 
 as little dangerous ^s such a place would reasonably be, 
 having regard to the contrivances necessarily used in carry- 
 ing 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 
 
 (y) L. R. 1 C. P. at p. 288. 
 
CONDITION OF BUILDINGS. 627 
 
 the plaintiff sustained damage by reason of that danger, 
 and of the neglect of the defendant and his servants to use 
 reasonably sufficient means to avert or warn him of it." 
 The judgment in the Exchequer Chamber (a) is little more 
 than a simple affirmation of this. 
 
 Persons entitled to safety. It is hardly needful to add 
 that a customer, or other person entitled to the like measure 
 of care, is protected not only while he is actually doing his 
 business, but while be is entering and leaving (a). And 
 the amount of care required is .so carefully indicated by 
 Willes J. that little remains to be said on that score. The 
 recent cases are important chiefly as showing in respect of 
 
 (z) L. E. 2 C. P. 311. very plain case, where a trap-dooi was 
 
 (a) Chapman v. Bolliwell (1858), 1 E. B. left open in the floor of a passage lead- 
 & E. 168, 27 L. J. Q. B. 315, treated as a ing to the defendant's office. 
 
 Persons entitled to safety. A concise statement of the law of this 
 subject Is that of Mr. Justice Gray in delivering the opinion of the court 
 in Carleton v. Franconia Iron Co. (99 Mass. 216), as follows: — 
 
 " The owner or occupier of land Is liable in damages to those coming 
 to it, using due care at his Invitation or Inducement, express or 
 Implied, on any business to be transacted or permitted by him, for' 
 an injury occasioned by the unsafe' condition of the land or of the 
 access to It, which is known to him and not to them, and which he 
 has negligently suffered to exist, "and has given them no notice of It." 
 See Currier v. Boston Music Hall) 135 Mass. 414 f Pastene v. Adams, 49 
 Cal. 87; Totten v. Phlpps, 52 N. Y. 354; City of Anderson «. East, 117 
 Ind. 126; 19 N. E. Rep. 726; Convers «. Walker, 30 Hnn, 696; Camp v. 
 Wood, 76 N. Y. 92; Henkel v. Murr, 31 Hun, 28; Edwards v. New York 
 etc. E. Co., 23 Id. 634; Lamparter v. Wallbaum, 46 111. 444; Welch ». 
 McAllister, 15 Mo. App. 492; Donnelly v. Hufschmidt, 79 Cal. 74; Evaas- 
 ville etc. R. Co. v. Griffin, 100 Ind. 221; 5& Am. Rep. 783; Powers i>. 
 Harlow, 63 Mich. 507; 61 Am. Rep. 157; Texas etc. R. Co. v. Best, 66 
 Tex. 116; Hamilton v. Texas etc. R. Co., 64 Tex. 251 ; 53 Am. Eep. 766; 
 21 Am. & Bng. R. Cas. 336; McKone ». Michigan, etc. R. Co., 51 Mich. 
 601; 47 Am. Rep. 596; 13 Am. & Eng. R. Cas. 29; Conradt v. Clauve, 93 
 Ind. 476; 47 Am. Rep. 388; Davis v. Central Congregational Sop., 129 
 Mass. 367; 37 Am. Rep. 368; Campbell v. Portland Sugar Co., 62 Me. 562; 
 16 Am. Rep. 503 ; Harris v. Perry, 89 N. Y. 308, reversing s. c. 23 Hun 
 (N. y.), 244; Benson v. Saurez, 19 Abb. Pr. 61; 43 Barb. 408; Davenport 
 V. Buckman, 10 Bosw. 20; 16 Abb. Pr. 341; Anderson v. Dickie, 26 How. 
 
628 DUTIES OF INSTIKING SAFETY. 
 
 what kinds of property the duty exists, and what persona 
 have the same rights as a customer. 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 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 (6). Where gangways for 
 access to ships in a dock were provided by the dock com- 
 pany, 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 Af the ships on behalf of all who use it (c). 
 A workman was employed under contract with a ship- 
 owner to paint his 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 down the staging, and the 
 man fell into the dock and was hurt; the dock-owner 
 was held liable to him {d). It was contended that the 
 staging had been delivered into the control of the ship- 
 
 (6) See ffolmes v. JV. E. B. Co. (1869-71), Bocks Co. (1868), L. K. 3 C. P. 326, 37 L. J. 
 
 L. E. 4 Ex. 264, in Ex. Ch. L. K. 6 Ex, 123, C. P. 217 (BoviU O. J. and Byles J., dub. 
 
 40 L. J. Ex. 131 ; White v. France (1877), 2 Keating J.). 
 0. P. D. 308, 46 L. J. 0. P. 823. (d) Heaven v. Pender (1883), 11 Q. B. 
 
 (c) Smith V. London ^ St. Kathcmne Dlv. 603, 52 L. J. Q. B. 702. 
 
 Pr. 105; Cannavan v. Concklin, 1 Abb. Pr. (N. S.) 271. To illustrate, In 
 the case ol' Latham v. Roach (72 111. 179), it was held that, individ- 
 uals who hold a fair and erect structures for the use of their patrons, 
 are liable for injury such patrons may receive by the breaking down or 
 falling of such structures, if caused by the negligent or unskillful 
 manner of their construction. 
 
 So, a dry-dock company were held liable for splitting the sound and 
 strong keel of a vessel^ by using a hydraulic dock without employing the 
 usual precautions. The Sappho, 44 Fed, Rep. 359. 
 
DUTY IN EESPECT OF CARRIAGES, SHIfS, ETC. 629 
 
 owner, and became as it were part of the ship ; but this 
 was held no reason 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 considered as invited by the dock-owner to use 
 the dock and all appliances provided by the dock-owner 
 as incident to the use of the dock " (ej. 
 
 Duty in respect of carriages, ships, &c. The posses- 
 sion of any structure to which human beings are intended 
 to commit themselves or their property, animate or inan- 
 imate, entails this duty on the occupier, or rather controller. 
 
 (e) Per Cotton and Bowen L. JJ. at p. taken as a fact, thongh it Is not clearly 
 
 515. The judgment of Brett M. B. at- stated, that the defective condition of 
 
 tempts to lay down a wider principle the rope might have been discovered by 
 
 with whic^ the Lords Jnstices did not reasonably careful examination when 
 
 agree. See p. 534 above. It must be the staging-was put up. 
 
 Duty in respect of carriages, ships, etc. Carriers are required to use 
 ordinary and reasonable care. T. & St. L. E. •». Suggs, (52 Tex. 323; 21 
 Am. & Eng. E. Gas. 475; Eobinson v. N. Y. etc. E., 9 Fed. Eep. 877; 20 
 Blatchf. 3.88; P., P. & J. E. v. Eeynolds, 88 111. 418; O'Donnell v, A. V. 
 E., 69 Pa. St. 259; C. C, C. & J. E. ». Newell, 75 Ind. 542; 8 Am. & Eng. 
 E. Gas. 377; George v. St. Louis etc. E., 34 Ark. 613; 1 Am. & Eng. R. 
 Gas. 294; Texas & P, E. v. Hardin, 62 Tex. 267; 21 Am. & Eng. R. Gas. 
 460; B. S. O. & B. E. v. Eainbolt, 99 Ind. 551; 21 Am. & Eng. E. Gas. 
 466 ; D. & W. R. o. Spicker, 61 Tex. 427 ; 21 Am. & Eng. E. Glas. 160 ; I. & 
 G. N. E. V. Halloren, 53 Tex. 46; 3 Am. & Eng. E. Gas. 343; P. & E. I. E. 
 V. Lane, 83 111. 449 ; Pennsylvania Go. v. Roy, 102 U. S. 451 ; 1 Am. & Eng. 
 E. Gas. 223; G. E. & I. E. v. Boyd, 65 Ind. 525; T. W. & W. R. v. Beggs, 
 85 111. 80. 
 
 Thus, a railroad company owes a duty to persons lawfully on their 
 premises, and in making the access to their stations safe. Tobin v. P. 
 S. & P. E. R. Co., 59 Me. 183. In Wendell v. Baxter (12 Gray, 494), it is 
 held, that the owners of a private wharf owe a duty to one employed to 
 carry the mail from a steamboat to the proprietors of which the owners 
 of the wharf had left a part of it; and they not on the ground of any con- 
 tract between them and the plaintiff, but because of the duty which the 
 law imposed upon them to make and keep their wharf safe for all who 
 were on it for a lawful business purpose, so long as they should permit 
 it to be open and used. See Stratton v. Staples, 59 Me. 94; Low». 
 Grand Trunk Ey. Co., 72 Me. 318; Cook v. New York etc. Co., 1 Hilt. 436. 
 
 Vessels are liable for improper stowage. The Rebecca, 1 Ware, 188 ; 
 
630 DUTIES OF INSURING SAFETY. 
 
 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 (/); to carriages travelling on a railway 
 or road (g), or in which goods are despatched (A); to 
 ships (i); to wharves, in respect of the safety of the 
 frontage for ships moored at or approaching the wharf ( j) ; 
 and to market-places {k). 
 
 In the case of a wharfinger he is bound to use reason- 
 able care to ascertain whether the bed of the harbour or 
 river adjacent is in a safe condition to be used by a vessel 
 coming to discharge at his wharf at reasonable times, 
 having regard to the conditions of tide, the ship's draught 
 of water and the like. But this duty exists only so far as 
 the river bed is in the wharfinger's possession or control (I). 
 For although the state of the grouud be not within his 
 
 (/) Francis v. CockreU (]870), Ex. Ch. and the buyer's serrant in the course of 
 
 L. E. 5 Q. B. 184, 501, 39 L. J. Q. B. 1 13, unloading the truck (ell through and was 
 
 291. The plaintiff had paid money for hurt. 
 
 admission, therefore there was a duty (i) Bayn v. CulHford (1879), 4 C. P. 
 
 ex contractu, but the judgments in the Div. 182, 48 L. J, C. I', ill. 
 Ex. Oh., see especially per Martin B., Ci) 2^ Moorcock (1889), 14 P. Di''. 64, 
 
 also affirm a duty independent of con- 38 L. J. P. 73. 
 
 tract. This is one of the most explicit (7c) Lax v. Corporation of Darlington 
 
 authorities showing that the duty ex- (1879) , 5 Ex. Div. 28, 49 L. J. Ex. lOS. 
 tends to the acts of contractors as well (0 The Calliope '91, A. C. 11, 60 L, J. 
 
 as servants. P. 28, reversing the decision of the 0. 
 
 {g) Foutkes V. Metrop. District B. Co. A., 14 P. Div. 138, 58 L. J. P. 76, on a dif- 
 
 (1880), 5 0. P. Div. 157, 49 L. J. O. P. 381; ferent view of the facts. The reasons 
 
 Moffatt V. -Bateinam (1869), L. E. 3 P. O. given in The Moorcock, note 0) above, 
 
 115. seem to be to some extent qualified by 
 
 (ft) EUiott V. Hall (1885), 15 Q. B. D. this, though the decision itself is ap- 
 
 315, 54 L. J. Q. B. 518. The seller of proved by Lord Watson, '91, A. C. at 
 
 coals sent them to the buyer in a truck p. 22. 
 with a dangerously loose trap-door in it. 
 
 Warring v. Morse, 7 Ala. 343; Jollet S. S. Co. v. Yeaton, 29 Fed. Eep. 
 331; Mephams v. Biessel, 9 Wall. 320; The Excellent, 16 Fed. Rep. 148. 
 And for unseaworthiness. Tennessee v. Fardos, 7 La. An. 28 ; Hackhouse 
 V. Sneed, 1 Murph. 173; Bowring v. Theband, 42 Fed. Eep. 787; Bell v. 
 Keed, 4 Blnn. 127; 5 Am. Dec. .398; The Rover, 33 Fed. Rep. 515; West 
 V. The Berlin, 3 la. 532. And for other negligence. The Barracouta, 40 
 Fed. Rep. 498; The Dan, 40 Fed. Rep. 691 ; Taylor v. Mexican G. R. Co., 
 2 La. An. 654; The Gloaming, 46 Fed. Rep. 671; The H. G. Johnson, 48 
 Fed. Rep. 696. 
 
DUTY IN EESPECT OF CARRIAGES, SHIPS, ETC. 631 
 
 control, it is a matter more ascertainable by him than by 
 the (shipowner. 
 
 A, railway passenger using one company's train with 
 a ticket issued by another company under an arrangement 
 made between the companies for their common benefit is 
 entitled, whether or not he can be said to have contracted 
 with the first-mentioned company, to reasonably safe pro- 
 vision for his conveyance, not only as regards the construc- 
 tion of the carriage itself, but as regards its fitness and 
 safety in relation to* other appliances (as the platform of 
 a station) in connexion with which it is intended to be 
 used (m). Where goods are lawfully shipped with the 
 shipowner's consent, it is the shipowner's duty (even if 
 he is not bound to the ownei* by any contract) not to let 
 other cargo which will damage them be stowed in contact 
 with them (n). Owners of a cattle-market are bound to 
 leave the, market-place in a reasonably safe condition fgr 
 the cattle of persons who come to the market and pay toll 
 for its use (o). 
 
 Limits of the duty. In the various applications W3 have 
 mentioned, the duty does not extend to defects incapable 
 of being discovered by the exercise of reasonable care, such 
 
 (m) Foulkes v. Metrop. District li. Co. at p. 31. The question of the danger 
 
 (1880), 5 C. P. Div. 157,49 L. J. C. P. 361. being obvious was considered not open 
 
 (n) JJayn v. CuUiford (1879), i C. P. on the appeal; if it had been, qu. as to 
 
 Div. 182, 48 L. J. C. P. 372. the result, per Bramwell L. J. It has 
 
 (o) Lax V. Corporation of Darlington been held in Minnesota (1889), that the 
 (1879), 5 Ex. Div. 28, 49 L. J. Ex. 105 (the owner of a building frequented by the 
 plaintiff's cow was killed by .a spiked public is bound not to allow a man of 
 fence round a statue in the market known dangerous temper to be em- 
 place). A good summary of the law, as ployed about the building: Dean v. St. 
 far as it goes, is eriven in the argument Paul Union Depot Co., 2D Am. Law 
 of Cave J. (then Q. C.) for the plaintiff Eeg. 22. 
 
 Limits of the duty. Supporting the text, vide Schubert v. J. E. 
 Clark Co. (Minn.), 51 N. W. Rep. 1103; Richmond & D. R. Co. v. Elliott, 
 149 U. S. 266; 13 S. Ct. Rep. 837; Lindley v. Hunt, 22 Fed. Rep. 52; 
 Bartlett v. Hoppock, 34 N. Y. 1 18 ; 88 Am. Dec. 428 ; Poland v. Milier, 95 
 Ind. 387; 48 Am. Rep. 730; Rodgers v. Niles, 11 Ohio St. 48; 78 Am. Dec. 
 290; Robinson Machine Works vl Chandler, 56 Ind. 575; Curtis & Co. 
 
632 DUTIES OP INSURING SAFETY. 
 
 as latent flaws in metal (p) ; though it does extend to all 
 such as care and skill ( not merely care and skill on the 
 part of the defendant) can guard against (g). 
 
 Again, when the builder of a ship or carriage, or the 
 maker of a machine, has delivered it out of his own pos- 
 session 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 (r). 
 
 Volenti non fit inlurla. Liability under the rule in 
 Indermaur v. Dames (s) may be avoided not only by 
 showing contributory negligence in the plaintiff, but by 
 
 (ji) Headhead -v. Midlands. Co. (.1S69), reasonably fit for tliat purpose, and 
 
 Ex. eh. L. E. 4 Q. B. 379; a case of oon- there Is no exception of latent defects: 
 
 tract between carrier and passenger, Jtrnidall v. Nemson (1877), 2 Q. B. Div. 
 
 but the principle is the same, and in- 102, 46 L. J. Q. B. 2B7. 
 deed the duty may be put on either (g) Byman v. Nye (1881), 6 Q. B. D. at 
 
 ground, see Jlyman v. Nye (1881), 6 Q. B. p. 687. 
 
 D. 685, 689, per Lindley'j. This does not (r) Winterhottow, v. WrigM, 10 M. & 
 
 however qualify the law as to the seller's W. 109; CoHisw. Selden (1868),L.E.8 C. 
 
 implied warranty on the sale of a chattel P. 495, 37 L. J. 0. P. 233 ; Losee v. CJtrfe, 
 
 for a speciAc purpose ; there the war- Bl N. Y. 494. 
 ranty is absolute that the chattel is (s) P. 625, above. 
 
 Mfg. Co. V. Williams, 48 Ark. 326; Woodle v. "Whitney, 23 Wis. 65; 99 
 Am. Dec. 102; Olrich v. Stohrer, 12 Phila. Rep. 199; Hoe v. Sanborn, 21 
 N. Y. 552; 28 Am. Dec. liB3; (Setty v. Eountree, 2 Pinney, 379; 2 Chand. 
 28; 64 Am. Dec. 130; Sliattow. Abernethy, 35 Minn. 638; Kellogg Bridge 
 Co. V. Hamilton, 110 TI. S. 108 ; Gerst v. Jones, 32 Gratt. 618 ; 84 Am. Eep. 
 773; Hight v. Bacon, 126 Mass. 10; Dearborn v. Downing, 77 Me. 457; 
 Pease v. Sabln, 38 Vt. 432; 91 Am. Dec. 364; Byers v. Chapin, 28 Ohio 
 St. 306; Dayton v. Hoogland, 89 Id. 682; Leopold v. Van Kirk, 27 Wis. 
 152; Bragg v. Morrill, 24 Am. Eep. 106; Bagley v. Cleveland Eolling 
 Mill Co., 21 Fed. Eep. 150; Bagan v. Call, 34 Pa. St. 236; 75 Am. Dec. 
 653; French v. Vining, 102 Mass. 132;, Dickinson v. Gay, 7 Allen, 29: 83 
 Am. Dec. 656; Dounce v. Dow, 64 N. Y. 411. 
 
 Volenti non fit Irduria. In the United States many of the authorities 
 go further than the rule stated in the text and hold that the safety of 
 one Is not insured where risks are assumed which are either known or 
 are so patent that by the use of observation and ordinary prudence they 
 
DUTY TOWARDS PASSERS-BY. 633 
 
 showing that the risk was as well known to him as to the 
 defendant, and that with such knowledge he voluntarily 
 exposed himself to it {t) ; but this will not excuse the 
 breach of a positive statutory duty (u). 
 
 Duty towards passers-by. Occupiers of fixed property 
 are under a like duty towards persons passing or being on 
 
 (t) Thomas v. Qutirtermaine, 18 Q. B. v. Fraiice, ib. 647, and p. 195, above. 
 
 Div. 685, 56 L. J. Q. B. 340. ^ Smith v. Balcer, '91, A. O. 325, 60 L. J. Q. 
 
 (u) Dicta of L. JJ. ibid.,iinCiBaddeley B. 683, was a case not of this class, bnt 
 
 V. Earl Granville (1887), 19 Q. B. D. 423, (as the facts were found) of neRligence 
 
 56 L. J. Q. B. 501. See further Yarmouth in conducting a specific operation. 
 
 could have been seen and avoided. See Hoosier Stone Co. v. McCain, 
 133 Ind. 281; 31 N. E. Eep. 956; Chism v. Martin, 57 Ark. 83; 20 S. W. 
 Eep. 808; Gulf C. & S. F. Ey. Co. v. Montgomery, 85 Tex. 64; 19 S. W. 
 Eep. 1015; St. Louis & S. F. Ey. Co. v. Traweek, 84 Tex. 65; 19 S. W. 
 Eep. 370; Bogers v. liCyden, 127 Ind. 50; 26 N. E. Eep. 210; Diehl v. 
 Lehigh Iron Co., 140 Pa. St. 487; 21 At. Eep. 430; 27 W. N. C. 552; Mis- 
 souri P. Ey. Co. V. Somers, 78 Tex. 439 ; Anderson ». Minnesota & N. 
 W. E. Co., 39 Minn. 523; 41 N. W. Eep. 104; Mansfield, etc., Coal Co. v. 
 McEnery, 91 Pa. St. 186; 33 Am. Eep. 662; Goldstein v. Chicago, etc. E. 
 Co., 46 Wis. 404; Pittsburg, etc. E. Co. ■». Collins, 87 Pa. St. 406; 30 Am. 
 Eep. 371; Mehan v. Syracuse, etc., E. Co., 73 N. T. 585; Baltimore, etc., 
 E. Co. V. Depew, 40 Ohio St. 121; 12 Am. & Eng. E. Cas. 64; Erie v. 
 Magill, 101 Pa. St. 616; 47 Am. Eep. 739; Corlett v. Leavenworth, 27 
 Kan. 673. 
 
 Sut it should be remembered that, " The fact that a person volun- 
 tarily takes some risk, is not conclusive evidence, under all circum- 
 stances, that he is not using due care." Lawless v. Conn. E. Co., 136 
 Mass. 1; 18 Am. & Eng. E. Cas. 96. See Harris v. Township of ClintoQ, 
 64 Mich. 447; 7 West Eep. 666; Dewire v. Bailey, 131 Mass. 196; 45 Am. 
 Eep. 219; Loqney v. McLean, 129 Mass. 33; 37 Am. Kep. 295; Filer v. N. 
 Y. Cent. E. Co., 49 N. Y. 47; 10 Am. Sep. 327; Albion v. Hetrick, 90 Ind. 
 345; 46 Am. Eep. 230; Wassner v. Delaware, etc. E. Co., 80 N. Y. 212; 
 1 Am. & Eng. E. Cas. 122; 36 Am. Eep. 608; Baldwin v. St. Louis, etc., 
 E. Co., 63 la. 210; 15 Am. &. Eng. E. Cas. 166. 
 
 Duty towards passers-by. ' As stated in the text, persons lawfully 
 traveling by the property of others are entitled to that reasonable 
 protection which their safety requires. In the case of Hannem v. Pence 
 (40 Minn. 130; 41 N. W. Kep. 657), the court said : "A man has no right 
 to construct his roof so as to discharge upon his neighbor's land, water. 
 Ice or snow which would not naturally fall there, and the persons of those 
 
634 DUTIES OF INSURING SAFETY. 
 
 adjacent land by their invitation in the sense above men- 
 tioned, or in the exercise of an independent right. 
 
 In Barnes v. Ward (a;), 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. Au action was brought under Lord Campbell'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 or guard it, as it did not interfere with the 
 use of the right of way. The Court held there was a good 
 cause of action, the excavation being so close to the public 
 way as to make it^unsafe to persons using it with ordinary 
 
 (X) 9 C. B. 392, 19 L. J. 0. P. 195 (1850) ; op. D. 9, 2, ad leg. Aqnil. 28. 
 
 who are lawfully traveling a street are certainly as much entitled to pro- 
 tection as the property of an adjoining owner." Citing Cahill v. 
 Eastman, 18 Minn. 292, and other cases. 
 
 In Dehririg v. Comstock (78 Mich. 153; 43 N. W. Kep. 1049) it was held 
 to be negligence to throw bales of hay, weighing 140 pounds, from a 
 barn-loft down into a public side-walk, without first looking into the 
 street to see if any one is near by, and giving sufScient warning to prevent 
 approach before casting them down. 
 
 Again, In Corrigan v. Union Sugar Refinery (98 Mass. 577), it was held 
 that, one whose servant carelessly throws a keg out of a window so that 
 it injures a person in a passage-way below is liable for such injury, even 
 if his title in the way is such as not to render him responsible for any defect 
 therein, and that he may at any time revoke the permission by which the 
 person injured is passing over it. See Hunt v. Hoyt, 20 111. 544; Brezee 
 V. Powers, 80 Mich. 172; 45 N. W. Rep. 130; Davis v. Michigan B. T. Co., 
 61 Mich. 307; 28 N. W. Rep. 108; St. Louis, I. M. & S. By. Co. v. Hop- 
 kins, 54 Ark. 209; 15 S. W. Rep. 610; Mclntire v. Roberts, 149 Mass. 450; 
 22 N. E. Rep. 13 ; Ster v. Tuety, 45 Hun, 49 ; McGuire v. Spence, 91 N. Y. 
 303; 42 Am. Rep. 601, note; Dixon v. Pluns (Cal.), 31 Pac. Rep. 931; 
 Mullen V. St. John, 57 N. T. 567. 
 
 In order to be a traveler, in this sense, it is not necessary that one 
 should be constantly moving, stops of reasonable duration and of busi- 
 ness of social character may be made. Smethurst v. Proprietors Ind. 
 Cong. Church, 148 Mass. 261; 19 N. E. Rep. 387, citing O'Linda v. 
 Lathrop, 21 Pick. 292; Judd u. Fargo, 107 Mass. 264. 
 
EES IPSA LOQUITUR. 635 
 
 care. The making of such an excavation amounts to a 
 public nuisance " even though the danger consists in the 
 risk of accidentally deviating from the road." 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 (y). 
 
 In Corby v. Hill (z) the plaintiff was a person using a 
 private way with the consent of the owners and occupiers. 
 The defendant had the like consent, as he alleged, to put 
 slates and other materials ou the road. No light or other 
 safeguard or warning was provided. The plaintiff's horse, 
 being driven on the road after dark, ran into the heap of 
 materials and was injured. It was held immaterial whether 
 the defendant was acting under licence from the 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 (a). 
 
 Here the plaintiff was (it seems) (6) only a licensee, 
 but while the licence was in force he was entitled not to 
 have the condition of the way so altered as to set a trap for 
 him. The case, therefore, marks exactly the point in which 
 a licensee's condition is better than a trespasser's. 
 
 Presumption of negligence (res ipsa loquitur) . Where 
 damage is done by the falling of objects into a highway 
 from a building, the modern rule is that the accident, in 
 
 (y) Burst V. Taylor (1885), 14 Q. B. D. (o) Cp. Sweeney v. Old Colony ^ New- 
 els, 54 L. J. Q. B. 310; defendants, rail- port B. B. Co. (1865), 10 Allen (Mass.). 
 way contractors, had (within the statu- 368, and Bigelow L. C. 660. 
 tory powers) diverted a footpath to (6) The language of the judgments 
 make the line, but did not fence off the leaves it not quite clear whether the 
 old direction of the path ; plaintiff walk^ continued permission to use the road for 
 ing after dark, followed the old direc- access to a public building (the Hanwell 
 tion, got on the railway and fell over a Lunatic Asylum) did not amount to an 
 bridge. " invitation " in the special sense of this 
 
 (s) 4 C. B. N. S. 556, 27 L. J. C. P. 318 class of cases. 
 (1858). 
 
'636 DUTIES OF INSURING SAFETY. 
 
 the absence of explanation, is of itself evidence of negli- 
 gence. In other words, the burden, of proof is on the 
 occupier of the building. If he cannot show that the 
 accident was due to some cause consistent with the due 
 repair and careful management of the structux'e, he is liable. 
 The authorities, though not numerous, are sufficient to 
 establish the rule, one of them being the decision of a 
 Court of appeal. In Byrne v. Boadle (c) a barrel of flour 
 fell from a window in defendant's warehouse in Liverpool, 
 and knocked down the plaintiff, who was lawfully passing 
 in the public street. There was no evidence to show how 
 or by whom the barrel was being handled. The Court said 
 this was enough to raise against the defendant a presump- 
 tion of negligence which it was tor 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 
 
 (c) 2 H. & 0. 722, 33 L. J. Ex. 13, and in Bigelow L. C. 678 (1863). 
 
 Presumption of negligence. As a rule negligence is not presumed 
 But, there are cases where negligence is not to be presumed from the fact 
 of damage, yet the circumstances under which the injury occurred may be 
 such as to create the presumption. This is the application of the phrase 
 res ipsa loquitur. Thus, where a railroad accident, caused by the cars 
 leaving the track, occurs, the presumption of negligence arises by virtue 
 of this maxim. Seybolt v. New York, etc. R. Co., 95 N. Y. 562; 18 Am. 
 &Eng. R. Cas. 162. 
 
 So, In the case of Holbrook ». The Utica, etc. R. Co. (12 N. Y. 263; 
 64 Am. Dec. 562, note) the court said: " For example a passenger's leg 
 is broken while on his passage in a railroad c^t. This mere fact Is no 
 evidence of negligence on the part of the carrier until something further 
 Is shown. If the witness who swears to the injury, testifies also that It 
 was caused by a crash in a collision with another train belonging to the 
 same carriers, the presumption of negligence immediately arises ; not how- 
 ever from the fact that the leg was broken, but from the circumstances 
 attending the fact. » * * The presumption arises from the cause of 
 the Injury or from other circumstances attending It, and not from the 
 Injury itself. See Lowery v. Manhattan R. Co., 99 N. Y. 168; Wiedmer v. 
 New York Elevated R. Co., 41 Hun, 284; Mulcalrns v. Janesvllle, 
 67 "Wis. 24; Dougherty v. Missouri R. Co., 81 Mo. 325; 21 Am. & Eng. 
 R. Cas. 497; 51 Am. Rep. 239; Rose v. Stephens, etc., Co., 20 Blatchf. 
 
PRESUMPTION OP NEGLIGENCE. 637 
 
 say that a plaintiff who is injured by it must call witnesses 
 from the warehouse to prove negligence seems to me pre- 
 posterous. 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 
 accident alone would be prima facie evidence of negli- 
 gence" {d). This was followed, perhaps extended, in 
 Kearney v. London, Brighton and South Coast Railway 
 Co. (e). There as the plaintiff was passing along a high- 
 way spanned by a railway bridge, a brick fell out of one of 
 the piers of the bridge and struck and injured him. A 
 train had passed immediately before. There was not any 
 evidence as to the condition of the bridge and brickwork, 
 except that after the accident other bricks were found to 
 have fallen out. The Court held the maxim " res ipsa 
 
 Id) Per PoUoek 0. B. Op. Scott v. (e) Ex. Oh. L. J. E. 6 Q. B. 759, 40 L. J. 
 
 London Dock Co. (1865), 3 H. & C. 596, 34 Q. B. 285 (1871). 
 L. J. Ex. 220, p. 393, above. 
 
 411; 11 Fed. Bep. 438; The Reliance, i Woods, 420; 2 Fed. Eep. 
 219; Posey v. Scoville, 10 Fed. Rep. 140; Bobinson v. New York 
 Cent, etc., R. Co., 20 Blatchf. 338; White v. Boston, etc. R. Co., 
 144 Mass. 404;- 30 Am. & Eng. R. Cas. 615; Cammins v. National 
 Furnace Co., 60 Wis. 603; Bedford etc'. R. Co. v. Rainbolt, 99 Ind. 551; 
 21 Am. & Eng. E. Cas. 466; Texas, etc. Co. v. Suggs, 62 Tex. 323; Laing 
 V. Colder, 8 Pa. St. 479; Meier v. Penn. E. Co., 64 Pa. St. 226 ; Sullivan v. 
 Pliila. etc., R. Co., 30 Pa. St. 234; Louisville etc., By. Co. v. Jones, 108 
 Ind. 551; Eagle Packing Co. v. Defrles, 94 111. 598; Pres., etc.. Bait. etc. 
 Road V. Leonhardt, 66 Md. 70; Memphis, etc., Co. v. McCool, 83 Ind. 
 392; Smith v. St. Paul, etc., Co., 32 Minn. 1; Moore v. Des Moines, etc., 
 Co., 69 la. 491 ; Iron etc. E. Co. v. Mowery, 36 Ohio St. 418; Centr. Pass., 
 etc., Co. V. Kuhn, 86 Ky. 578; 6 S. W. Rep. 441; Welch v. Durand, 36 
 Conn. 182; Chataigne v. Bergeron, 10 La. An. 699; Morgan v. Cox, 22 
 Mo. 373; Buck v. Penn. E. Co., 150 Pa. St. 170; 24 At. Rep. 678; 30 W. 
 N. C. 400; Kirst v. M., L. S. & W. R. Co., 46 Wis. 489. 
 
 It is a general rule that the employer is not liable for the negligence 
 of his contractor. Wood v. The Ind. School Dist., 44Ia. 27; Beed o. 
 Allegheny City, 79 Pa. St. 300; City of Rochester v. Montgomery, 72 N. 
 y. 65; Roemer v. Striker (Super. N. Y.), 21 JI. Y. S. Eep. 1090; 2 Misc. 
 Rep. 573; Samyn v. McClosky, 2 Ohio St. 636; Kepperly v. Ranisden, 83 
 111. 364. See, ante, pp. 121, et seq. 
 
638 DUTIES OF INSURING SAFETY. 
 
 loquitur " to be applicable. " The defendants were under 
 the common law liability to keep the bridge in safe condition 
 for the public using the highway to pass under it ; " and 
 when " a brick fell out of t[ie pier of the bridge without any 
 assignable cause except the slight vibration caused by a 
 passing train," it was for the defendants to show, if they 
 could, that the event was consistent with due diligence 
 having been used to keep the bridge in safe repair (/). 
 This decision has been followed, in the stronger case of a 
 whole building falling into the street, in the State of New 
 York. " Buildings properly constructed do not fall with- 
 out adequate cause " (g). 
 
 In a later case ( h ) 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 per- 
 son ( not his servant^ to put the Ettrp in repair : the fall 
 was in fact due to the diacayed condition of the attachment 
 of the lamp to its bracket, which had escaped notice. " It 
 was the defenda'nt's duty to make the lamp reasonably 
 safe, the contractor failed to do that .... there- 
 fore the defendant has not done his duty, and he is liable 
 to the plaintiff for the consequences" (^■). In this case 
 negligence on the contractor's part was found as a fact. 
 
 Combining the principles affirmed in these authorities, 
 we see that the owner of property abutting on a highway is 
 under a positive duty to keep his property from being a 
 cause of danger to the public by reason of any defect either 
 in structure, repair, or use and management, which reason- 
 able care and skill can guard against. 
 
 Distinctions. But where an accident happens in the 
 course of doing on fixed property work which is proper of 
 itself, and not usually done by servants, and there is no 
 
 (/) Per Cur. L. E. 6 Q. B. at pp. 761, (ft) Tarry v. AsJaon (1876), 1 Q. B. D. 
 
 762, 314, 45 L. J. Q. B. 2fi0. 
 
 (.g) Mullen v. St. John, 57 N. Y. 567, 569. (i) Per Blackburn J. at p. 319. 
 
POSITION OF LICENSEES. 639 
 
 proof either that the work was under the occupier's con- 
 trol or that the accident was due to any defective condition 
 of the structure itself with reference to its ordinary pur- 
 poses, the occupier is not liable (k). Iii other words, he 
 does not answer for the care or skill of an independent and 
 apparently competent contractor in the doing of that which, 
 though connected with the repair of a structure for whose 
 condition the occupier does answer, is in itself merely inci- 
 dent to the contractor's business and under his order and 
 control. ' ♦ 
 
 There are cases involving principles and considerations 
 very similar to these, but concerning the special duties of 
 adjacent landowners or occupiers to one another rather than 
 any general duty to the public or to a class of persons. 
 We must be content here to indicate their existence, 
 though in practice the distinction is not always easy to 
 maintain (Z). 
 
 Position of licensees. Thus far we have spoken of the 
 duties owed to persons who are brought within these risks 
 of unsafe condition or repair by the occupier's invitation 
 
 (*) Welfare v. London ^ Brighton B. (f) See 5ower v. Pcaie (1876), 1 Q.B.D. 
 
 Co. (1869), L. E. i Q. B. 693, 38 L. J. Q. B. 321, 45 L. J. Q. B. 446; Bughes V. Perdval 
 
 241; a decision on peculiar facts, wliere (1883), 8 App. Ca. 443, 62 L. J. Q. B. 719; 
 
 perhaps a very little more evidence and cp. Gorham v. Gross, 125 Mass. 232. 
 miglit have turned the scale in favour of 
 the plaintiff. 
 
 Position of licensees. As stated in the text the licensee must assume 
 the ordinary risks of the place where the license is to be enjoyed. Van- 
 derbeck v. Hendry, 34 N. J. L. 467; Metcalfe v. Cunard Steamship Co., 
 147 Mass. 66. At the same time the licensee is liable for damages result- 
 ing from his negligence in the performance of the act or excessive use 
 of the privilege. Selden v. Del. & H. Canal Co., 29 N. Y. 634; McKnight 
 V. Eatcliff, 44 Pa. St. 159; Dean v. McLean, 48 Vt. 412; Eaton?). Wenn, 
 20 Mich. 156; Norton v. Craig, 68 Me. 275; Smith ■». Amer. Institute, 9 
 Daly, 526; Gardner v. Rowland, 2 Ired. 247; Dempsey v. Kipp, 62 Barb. 
 311; Luford v. Putnam, 35 N. H. 563; Murray v. Gibson, 21 111. App. 
 488; Cook v. Stearns, 11 Mass. 533; Breitenbach v. Trowbridge, 64 Mich. 
 393; 81 N. W. Eep. 402; Fletcher o. Evans, 140 Mass. 241; Gushing v. 
 
640 DUTIES OF INSURING SAFETY. 
 
 on a matter of common interest, or are there in the exer- 
 cise of a right. We have still to note the plight of him 
 who comes on or near another's property as a " bare 
 licensee." Such an one appears to be (with the possible 
 exception of a mortgagee in possession) about the least 
 favoured in the law of men who are cot actual wrong- 
 doers. He must take the property as he finds it, and is 
 entitled only not to be led into danger by " something like 
 fraud " (m). 
 
 Persons who by the mere gratuitous permission of owners 
 or ocupiers take a short out across a waste piece of land (n), 
 or pass over private bridges (o), or have the run of a 
 building (p), cannot expect to find the land free from holes 
 or ditches, or the bridges to be in safe repair, or the pas- 
 sages and stairs to be commodious and free from dangerous 
 places. If the occupier, while the permission continues, 
 does something that creates a concealed danger to people 
 availing themselves of it, he may well be liable (q). And 
 he would of course be liable, not for failure in a special 
 duty, but for wilful wrong, if he purposely made his prop- 
 erty 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 
 
 (m) Wille8 J., Gautret v. Sgerton (p) Sullivan v. Waters (1864), 14 Ir. C. 
 
 (1867), L. E. 2 C. P. at p. 375. L. E. 460. 
 
 (n) HmnseU v. Svmjth (1860), 7 C. B. N. (g) Corhy \. Hill (1858), 4 0. B. N. S. 
 
 S. 731, 29 L. J. O. P. 203. ' 556, 27 L. J. O. P. 318, p. 459, above. 
 
 (0) OoMtret V. Egerton (1387), L. E. 2 
 C. P. 371, 36 L. J. C. P. 191. 
 
 Adams, 18 Pick. 110; Ferrin v. Symonds, 11 N. H. 363; Van Brunt v. 
 Schenck, 13 Johns. 414; Edelman v. Yeakel, 27 Fa. St. 26; Faulkner v. 
 Anderson, GUmer,221; Jewell v. Mahood,44N. H.374; Ballard v. Noaks, 
 2 Ark. 45. 
 
POSITION OF LICENSEES. 641 
 
 in it, I may be liable for the consequences : but, if I do 
 nothing, I am not " (»•). 
 
 The occupier of a yard in which machinery was in motion 
 allowed certain workmen (not employed in his own busi- 
 ness) to use, for their own convenience, a path crossing it. 
 This did not make it his duty to fence the machinery at all, 
 or if he did so to fence it sufficiently ; though he might have 
 been liable if he had put up an insecure guard which by the 
 false appearance of security acted as a trap (s). The 
 plaintiff, by having permission to use the path, had not 
 the right to find it in any particular state of safety or 
 convenience. 
 
 " Permission involves leave and licence, but it gives no 
 right. If I avail myself of permission to cross a man's 
 land I do so by virtue of a licence, not of a right. It is 
 an abuse of language to call it a right: it is an excuse or 
 licence, so that the party cannot be treated as. a tres- 
 passer" (t). In the language of Continental jurisprud- 
 ence, there is no question of culpa between a gratuitous 
 licensee and the licensor, as regards the safe conditioc of 
 the property to which the licence applies. Nothing short 
 of dolus will make the licensor liable (w). 
 
 Host and gaest. Invitation is a word applied in common 
 speech to the relation of host and guest. But a guest 
 (that is, a visitor who does not pay for his entertainment) 
 
 (r) Willes J., L. E. 2 C. P. at p. 373. v. Hedges (1883), 9 Q. B. D. 80, the ques- 
 
 («) Bolch V. Smith (1862), 7 H. & N. tion was more of the terms of the con- 
 
 736, 31 L. J. Ex. 201. tract between landlord and tenant than 
 
 («) Martin B., 7 H. & N. at p. 745. of a doty imposed by law. Quaere, 
 
 Batchelor V. Fortescue (1683), 11 Q. B. whether In that case the danger to 
 
 DiT. 471, 478, seems rather to stand upon which the tenant was exposed might not 
 
 the ground that the plaintiff had gone have well been held to be in the nature 
 
 oat of his way to create the risk for him- of a trap. The defect was a non-appar- 
 
 self. As between himself and the de- ent one, and the landlord knew of it. 
 
 fendant, he had no title at all to be (m) Cp. Blackmore v. Bristol and Exe- 
 
 where he was. Cp. D. 9. 2. ad leg. Aqull. ter B. Co. (1858) , 8 E. & B. 1C^5, 27 L. J. Q. 
 
 31 ad fin. " cnlpa ab eo exigenda non est, B. 167, where it seems that the plaintiil's 
 
 cnm divinare non potaerit an pereum intestate was not even a licensee i bat 
 
 locnm aliquis transitnrus sit. " In Ivay sec 11 Q. B. D. 516. 
 
 41 
 
642 CUTIES OF INSURING SAFKTY. 
 
 has not the benefit of the legal doctrine of invitation in the 
 sense now before us. He is in point of law nothing but a 
 licensee. The reason given is that he cannot have higher 
 rights than a member of the household of which he has for 
 the time being become, as it were, a part (x). All he is 
 entitled to is not to be led into danger known 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 due to any 
 defect in the carriage of which he was not aware (y). 
 
 Iiiability of licensor for " ordinary negligence." It 
 
 may probably be assumed that a licensor is answerable to 
 the licensee for ordinary negligence (z), in the sense that 
 his own act or omission will make him liable if it is such 
 that it would create liability as between two persons having 
 an equal right to be there : for example, if J. S. allows me 
 to use his private road, it will hardly be said that, without 
 express warning, I am to take the risk of J. S. driving 
 furiously thereon. But the whole subject of a licensee's 
 rights and risks is still by no means free from difficulty. 
 
 (X) Souihcote y. Stanley (1856), ] H. & H. & X. at p. US, where the same line of 
 K. 247, 25 L. J. Ex. 339. Bui quaere if thought appears. 
 
 this explanation be not ohscurum per {y) Moffait v. Bateman (1869), L. R. 3 
 
 obscurius. Op. Abraham v. Reynolds, 5 P. C. 115. 
 
 (s) Horace Smith, 38 Camphell, 119. . 
 
 Host and guest. A traveler who pays for being entertained is entitled 
 to the protection of his property afforded by the common law. Curtis 
 V. Murphy, 63 Wis. 4; 53 Am. Rep. 242; Russell v. Fagan (Del.), 8 At. 
 Rep. 258; Walling v. Potter, 35 Conn. 183; Manning v. Wells, 9 Humph. 
 746; 51 Am. Dec. 688; Clute v. Wiggins, 14 Johns. 175; 7 Am.Dec. 451; 
 Horner v. Harvey, 3 N. M. 197; 6 Pac. Rep. 329. 
 
 A " boarder " is a resident who is entertained at a special rate and for 
 an agreed time. To him the keeper's obligation is near to that of a 
 bailee. Chamberlain v. Masterson, 26 Ala. 371; Vance v. Throckmorton, 
 5 Bush, 41; Neal v. Wilcox, 4 Jones L. 46; 67 Am. Dec. 266; Shoecraft 
 V. Bailey, 25 la. 553; Hancock v. Rand, 94 N. Y. 1 ; 46 Am. Rep. 112. 
 
 A "visitor" is one entertained temporarily and without charge. 
 Gastenhofeer v. Clair, 10 Daly, 265; Kopper v. Willis, 9 Id. 460; Carter v. 
 Hobba, 12 Mich. 52; 83 Am. Dec. 762; Eitch v. Custer, 17 Hun, 126. 
 
SPECIAL DUTIES. 643 
 
 liiability of owner not in occupation? It does not 
 appear to have been ever decided how far, if at all, an 
 owner of property not in possession can be subject to the 
 kind of duties we have been considering. We have seen 
 that in certain conditions he may be liable for nuisance (a). 
 But, since the ground of these special duties regarding safe 
 condition and repair is the relation created by the occupier's 
 express or tacit " invitation," it may be doubted whether 
 the person injured can sue the owner in the first instance, 
 even if the defect or default by which he suffered is, as 
 between owner and occupier, a breach of the owner's 
 obligation.. 
 
 (o) See p. 531, above. Campbell, pp. «. Detroit Steel & Spring Works, 73 Mich. 
 26,27. [Tucker ». Illinois Cent. E. Co., 405; 41 N. W. Bep. 490; O'Connor v. 
 42 La. An. 114; 7 So. Kep. 124; Wilkinson Andrews, SI Tex. 23; 16 S. W. Eep. 628.] 
 
644 
 
 CHAPTER XIII. 
 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 Original theory of forms of action. The original 
 theory of the common law seems to have been that there 
 were a certain number of definite and mutually exclusive 
 causes of action, expressed in appropriate 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 intoler- 
 able 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 sub- 
 stantial grievance without remedy was greatly diminished, 
 but the old sharply drawn lines of definition were over- 
 stepped 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 according to the circumstancesi Hence, 
 different remedies for similar or identical causes of action 
 
ACTIONS ON THE CASE. 645 
 
 remained in use after the freedom of choice had been 
 established with more or less difficulty. 
 
 On the debatable 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 indetermin- 
 ate than those of the earlier system, because less reducible 
 to the test of fixed forms. 
 
 Actions on the case. The great instrument of trans- 
 formation was the introduction of actions on the caso^y 
 the Statute of Westminster (a). Certain types of action 
 on the case became in effect new and well recognized forms 
 of action. But it was never admitted that the virtue of the 
 statute had been exhausted, and it was probably rather the 
 timidity of pleaders than the unwillingness of the judges 
 that prevented the development from being even greater 
 than it was. It may be asked in this connexion why some 
 form of action on the case was not devised to compete with 
 the jurisdiction of the Court of Chancery in enforcing 
 trusts. An action on the case analogous to the action of 
 account, if not the action of account itself, might well have 
 been held to lie against a feoffee to uses at the suit of 
 cestui que use. Probably the reason is to be sought in the 
 inadequacy of the common law remedies, which no expan- 
 sion 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 unlaw- 
 ful for a common lawyer to meddle with, was not the 
 canse but the consequence of the Court of Chancery's final 
 triumph. 
 
 The history of the Eoman legis actiones may in a general 
 way be compared with that of common law pleadmg in its 
 earlier stages; and it may be found that the praetorian 
 
 (a) 13 Edw. I., c. ii. 
 
6i6 SPECIAL RELATIONS OF CONTRACT AND TOKT. 
 
 actions have not less in common with our actions on the 
 case than with the remedies peculiar to courts of equity, 
 which our text- writers have habitually likened to them. 
 
 Causes of action : modern classiflcation of them as 
 founded on contract or tort. 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 al- 
 ternative, we are no longer bound to choose at our peril, 
 and at the very outset, on which ground we will proceed, 
 but we must have at least one definite ground. The ques- 
 tion, therefore, whether any cause of action la 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 diflferent par- 
 ties it may still be of capital importance. 
 
 In modern English practice, personal (b) causes of action 
 cognizable by the superior courts of common law (and now 
 by the High Court in the jurisdiction derived from them) 
 have been regarded as arising either out of contract or out 
 of wrongs independent of contract. This division was no 
 doubt convenient for the working lawyer's ordinary uses, 
 and it redeived the high sanction of the framers of the 
 Common Law Procedure Act, besides other statutes deal- 
 ing with procedure. But it does not rest on any historical 
 authority, nor can it be successfully defended as a scientific 
 dichotomy. In fact the historical causes above mentioned 
 have led to intersection of the two regions, with consider- 
 able perplexity for the consequence. 
 
 We have, causes of action nominally in contract which 
 
 (6) I do not think It was ever attempted to bring the real actions under this 
 classiflcation. 
 
ALTEKNAXrVE REMEDIES. 647 
 
 are not founded on the breach of any agreement, and we 
 have torts which are not in any natural sense independent 
 of contract. 
 
 This border-land between the law of tort and the law of 
 contract will be the subject of examination in this chapter. 
 
 Classes of questions arising. The questions to be dealt 
 with may be distributed under the following heads: — 
 
 1. Alternative forms of remedy on the same cause of 
 
 action. 
 
 2. Concurrent or alternative causes of action. 
 
 3. Causes of action in tort dependent on a contract not 
 
 between the same parties. 
 
 4. Measure of damages and other incidents of the 
 
 remedy. 
 
 I. — Alternative Forms of Remedy on the same Cause of 
 
 Action . 
 
 One cause of action and alternative remedies. It may 
 
 be hard to decide whether particular cases fall under this 
 head or under the second, that is, whether there is one 
 cause of action which the pleader 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 Isind. 
 
 The common law doctrine of inisfeasance. Misfeas- 
 ance in doing an act in itself not unlawful is ground for an 
 action on the case (c). It is immaterial that the act was 
 not one which the defendant was bound to do at all(d). 
 
 (c) And strictly, not foi an action of some common or particnlar claim of 
 trespass; but there are classes of facts light, bnt not being duly done fail of 
 which may be regarded as constituting such justification and arc merely wrong- 
 cither wrongs of misfeasance (case), or ful (trespass). 
 acts which might be justified under (d) Gladicell v. Steggal (1S39) , 5 Btng. 
 
648 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 If a man will set about actions attended with risk to 
 others, the law casts on him the duty of care and com- 
 petence. It is equally immaterial that the defendant may 
 have baund 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 doc- 
 trine 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 assumpsit {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 
 
 N. C. 733, 8 Scott 60, S L. J. 0. P. 361; material, see ShieSsv. Blackbume (,nS9), 
 
 action by aa infant for incompetence 1 H. Bl. 158, 2 R. It. 750. 
 in surgical treatment. In such an action (e) O. W. Holmes, The Common 
 
 the plantiff's consent is material only Law, pp. 274 sgq.; J. B. Ames in Harr. 
 
 because without it the defendant would Law Rev. ii. 1, 53. 
 
 be a mere trespasser, and the incom- (/) An analogy to this in the Roman 
 petence would not be the gist of the theory of culpa, under the Lex Aqullia, 
 action, but matter for aggravation of can hardly bo sustained. See the pas- 
 damages. To the same effect is Pippin sages in D. 9. 2. collected and dismissed 
 V. Sheppard (1S22), 11 Price, 400, hold- in Dr. Grueber's treatise, at pp. S7, 2W. 
 Ing that a declaration against a sur- On the other hand the decision in 
 geon for improper treatment was not Slade's case, i Co. Rep. ill a, that the 
 bad for not showing by whom the snr- existence of a cause of action in debt 
 geon was retained or to be paid. Astd did not exclude assumpsit, was in full 
 the assumption of special skill being accordance with the original concep- 
 tion. 
 
 Misfeasance. Defined as in the text, vide Black's Law Die. 779 ; Ander- 
 son's Die. of Law, 450; Coite v. Lynes, 33 Conn. 109; Roberts v. State, 
 7 Coldw. 359; Horner v. Lawrence, 37 N. J. L. 46; BerghofE v. McDonald, 
 87 Ind. 549; Bell v. Josselyn, 3 Gray, 309; Harriman v. Stowe, 57 Mo. 93; 
 Elmore v. Brooks, 6 Helsk. 4o; Bliss v. Schaub, 48 Barb. 339; Richardson 
 V. Eimball, 28 Me. 464; Erwin v. Davenport, 9 Heisk. 44; Clark v. Lov- 
 ering, 37 Minn. 120; 33 N. W. Rep. 776; Delaney v. Rochereau, 34 La. 
 An. 1128; 44 Am. Rep. 456; Crane v. Onderdonk, 67 Barb. 47; Bennett v. 
 Ives, 30 Conn. 329; Hedden v. Griffin, 136 Mass. 229; 49 Am. Rep. 25; 
 Beed v. Petterson, 91 III. 288, 297. 
 
NEGLIGENCE AND ASSUMPSIT. 649 
 
 case it had become a perfect species, and in common use 
 its origin was forgotten. But the old root was there still, 
 and bad life in it at need. Thus it might happen that 
 facts or pleadings which in the current modern view showed 
 an imperfect cause of action in assumpsit would yet suffice 
 to give the plaintiff judgment on the more ancient ground 
 of misfeasance in a duty imposed by law. In the latest 
 period of common law pleading the House of Lords upheld 
 in this manner a declaration for negligence in the execution 
 of an employment,* which averred an undertaking of the 
 employment, but not any promise to the plaintiff, nor, in 
 terms, any consideration {g). And it was said that a 
 breach of duty in the course of employment under a con- 
 tract would give rise to an action either in contract or in 
 tort at the plaintiff's election (h). This, it will be seen, 
 is confined to an active misdoing; notwithstanding the 
 verbal laxity of one or two passages, the House of Lords 
 did not authorize parties to treat the mere non-performance 
 of a promise as a substantive tort (i). Until the begin- 
 ning of this century it was the common practice to sue in 
 tort for the breach of an express warranty, though it was 
 needless to allege or prove the defendant's knowledge of 
 the assertion being false (j). 
 
 On the other hand, it was held for a considerable time (Jc) 
 that an action against a common carrier for loss of goods, 
 even when, framed in tort, " sounded in contract " so much 
 that it could not be distinguished from assumpsit, and a 
 count so framed could not be properly joined with other 
 
 .(g) Broum V. Soorman (ISU), 11 C\. & argnment. In thatcaseit wasattemptecJ 
 
 F. 1. The defendant's pleader appears to join counts, which were in substance 
 
 to have been unable to refer the deolara- for the nonpayment of a bill of ex- 
 
 tion to any certain species; to make change, with a count in trover, 
 snreof having It somewhere he pleaded U) Williamsony. Allison (lS02),2'EaBt, 
 
 — (1) not gruilty; (2) non assumpiit; (3) 446. 
 
 a traverse of the alleged employment. (A) From 1695, Balaton v. Jamson, 5 
 
 (ft) Per Lord Campbell. Mod. 89, 1 Ld. Eaym. 58, till 1766, when 
 
 (i) Courtenay v. Em-le (1850), 10 C. B. the last-mentioned case and others to 
 
 73, 20 L. J. C. P. 7. See especially the the same iffect were overruled in Dickon 
 
 dicta of Maule J. in the course of the v. Clifton, i ^\■lls. 319. 
 
650 SPECIAL RELATIONS OF CONTEACT AND TOET. 
 
 forms of case, such as trover. At a later time it was held, 
 for the purpose of a plea in abatement, that the declaration 
 against a carrier on the custom of the realm was in sub- 
 stance ex contractu (A;), 
 
 There are certain kinds of employment, namely those of 
 a carrier and an innkeeper, which are deemed public in a 
 special sense. If a man holds himself out as exercising 
 one of these, the law casts on him the duly 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 con tract ; and if the 
 duty is broken, there is not a breach of contract but a tort, 
 for which the remedy under the common law forms of 
 pleading is an action on the case. In effect refusing to 
 enter into the appropriate contract is of itself a tort. 
 Duties of the same class may be created by statute, ex- 
 pressly or by necessary implication ; they are imposed for 
 the benefit of the public, and generally by way of return 
 for privileges conferred by the same statutes, or by others 
 in pari materia, on the persons or corporations who may 
 be concerned. 
 
 Special duty of carriers and inn-keepers by " custom 
 of the realm." Here the duty is imposed by the general 
 law, though by a peculiar and somewhat anomalous rule ; 
 
 (k) Buddie v. mison (1795), 6 T. R. 369, 3 R. R. 202, see Mr. Campbell's note at p. 
 
 206. 
 
 Special duty of carriers and innlseepers. Carriers. One engaged in 
 the business of common carriage derives certain benefits from the uni- 
 form patronage of the public in consideration of which every proper 
 individual may demand of him corresponding uniformity in service. The 
 very definition of a common carrier excludes the right to grant monopo- 
 lies or give preference and implies an equal readiness to serve all who 
 may apply in the order of their application. New England Exp. Co. «. 
 
CUSTOM OF THE REALM. 651 
 
 and it gives rise to an obligation upon a simple non-feas- 
 ance, unless we say that the profession of a " public em- 
 ployment " in this sense is itself a continuing act, in 
 
 Maine Cent. B., 57 Me. 188; Chicago & A. E. Co. v. Suffern, 129 111. 274; 
 21 N. E. Rep. 824; Land v. Wilmington & W. R. Co., 104 N. C. 48; 10 S. 
 E. Rep. 80; Avinger v. Railway Co., 29 S. C. 265; Houston, etc., E. v. 
 Smith, 63 Tex. 322; 22 Am. & Eng. R. Cas. 421 ; Kenney v. Grand Trunk, 
 etc. R., 59 Barb. 104; 47 N. Y. 525; Chicago, etc. E. v. People, 67 III. 11; 
 16 Am. Rep. 599; Messenger v. Pennsylvania E., 37 N. J. L. 531 ; 19 Am. 
 Rep. 457; "Wheeler v. ^n Francisco, etc. R., 31 Cal. 46; McDuffee «. 
 Railroad, 52 N. H. 730; Pearson v. Duane, 71 U. S. 605; 18 L. Ed. 447. 
 
 By the " Interstate Commerce Law " (24 U. S. St. at Large, p. 382), 
 undue preference and discriminations in commerce between the Sta,tes 
 are prohibited. See Little Rock & M. R. Co. v. East Tenn. etc. E. Co., 
 47 Fed. Eep. 771; Interstate Commerce Commission v. Bait. & C. R. Co., 
 145 U. S. 263; 12 S. Ct. Rep. 844; New York & N. E. E. Co., 50 Fed. Eep. 
 867. 
 
 Innkeepers. By the common law the innkeeper is regarded as a servant 
 of the public and as such he is bound to lodge and entertain, to the ex- 
 tent of his accommodations, all suitable persons who may apply, or 
 render himself liable to the applicant in damages. Hancock v. Rand, 94 
 N. Y. 1; 46 Am. Eep. 112; Atwater v. Sawer, 76 Me. 539; Mowers u. 
 Fethers, 61 N. Y. 34; 19 Am. Rep. 244; Halett v. Swift, 35 N. Y. 
 577; Grinnell v. Cook, 3 Hill, 485; 38 Am. Dec. 663; Ingalsbee v. 
 Wood, 36 Barb. 455; 33 N. Y. 577; Civil Rights Bill, 1 Hughes (U. 
 S.), 541; Pinkerton v. Woodward, 33 Cal. 557; Dickerson v. Rogers, 
 4 Humph. 179; Southwood v. Myers, 3 Bush, 681; Watson v. Cross, 
 2 Puv. 147; McCarthy v. Niskern, 22 Minn. 80; Willis v. McMahan, 
 89 Cal. 156; 26 Pac. Eep. 649. In Beale v. Posey (72 Ala. 323), the court 
 said: "There was (at common law), as little discretion left to him (an 
 innkeeper). In the choice of his guests as there was to the common car- 
 rier in the selection of the persons for whom he would perform his 
 duties. Each is engaged in public employment, bound, in the absence 
 of reasonable grounds for refusal, to serve all having a necessity for 
 their services." 
 
 But an innkeeper has sufficient ground^ for exclusion where the per- 
 son refused admission was at the time drunk, disorderly, irresponsible 
 or disreputable. McKee v. Owen, 15 Mich. 115; Markham v. Brown, 8 
 N. H. 523; 31 Am. Dec. 209; Commonwealth v. Power, 7 Mete. 596; 
 Curtis V. Murphy, 63 Wis. 4; 53 Am. Rep. 242. 
 
 The common law regulations of carriers and innkeepers prevail in the 
 United States subject to a few well defined limitations. In 1875 Con- 
 gress enacted, " That all persons within the iurisdiction of the United 
 States shall be entitled to the full and equal enjuyment of the accommo- 
 
652 SPECIAL RELATIONS OF CONTRACT AND TOET. 
 
 relation to which the refusal to exercise that employment 
 on due demand is a misfeasance. But on this latter view 
 there would be no reason why the public profession of any 
 trade or calling whatever should not have the like conse-^ 
 quences ; and such an extension of the law has never been 
 proposed. 
 
 The term " custom of the realm " has been appropriated 
 to the description of this kind of duties by the current 
 usage of lawyers, derived apparently from the old current 
 form of declaration. It seems however that in strictness 
 "custom of the realm" has no meaning except as a 
 synonym of the common law, so that express averment of 
 it was superfluous (Z). 
 
 Even where the breach of duty is subsequent to a com- 
 plete contract in any employment of this kind, it was long 
 the prevailing opinion that the obligation was still 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 (m). 
 
 Alternative of form does not affect substance of duty 
 or liability. In ail other cases under this head there are 
 not two distinct causes of action even in the alternative, 
 
 (I) Pozei T. SMpion (1839), 8 A. & E. W. B. Co. (18601, 2 E. & E. 814, 29 L. J. Q. 
 963, 975, 8 L. J. Q. B. 1. Op. Tattan v. 6. B. 184, T. B. 2 Hen. IV. IS, pi. 5. . 
 
 (m) Pozzi V. ISHpton, last note. 
 
 dations, advantages, facilities and prlvUiges of inns, public conveyances, 
 on land and vrater, theaters and other places of public amu.senient, sub- 
 ject only to the condition and limitations established by law, and 
 applicable alilie to citizens of every race and color, regardless of any 
 previous condition of servitude." Laws, 1875, Ch. 114. The Supreme 
 Court of the United States very wisely held these provisions unconsti- 
 tutional as applied to the several States. Civil Rights Cases (1883), 109 
 U. S. 3. 
 
 Since that time the legislatures of many of the States have passed laws 
 regulating these subjects and the object and effect of these laws are to 
 make the legal duties of carriers, inulseepers, etc., more consistent with 
 the requirements of our heterogeneous population and unequal social 
 condition. See, ante, p. 642. 
 
CUSTOM OF THE REALM. 653 
 
 nor distinct 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 undertaking with- 
 out a contract, there is a duty incident to the undertak- 
 ing (n), 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 con- 
 tract at all (o). Even where there is a contract, our autho- 
 rities do not say that the more general duty ceases to exist, 
 or that a tort cannot be committed ; but they say that the 
 duty is "founded on contract." The contract, with its 
 incidents either 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\ device of form get more 
 than was contained in the "defendant's obligation under the 
 contract. 
 
 Thus an infant 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 Eng- 
 land would be ruined, it was said, if such actions were 
 allowed (p). So a purchaser of goods on credit, if the 
 vendor resold the goods before default in payment, could 
 treat this as a conversion and sue in trover ; but as against . 
 the seller he could recover no more than his actual damage, 
 in other words the substance of the right was governed 
 wholly by the contract (g). 
 
 (n) Gladwell V. Steggall (1839), 5 Blng. (p) Jenninys v. Rundall (1799), 8 T. E. 
 
 N. C. 733, 8 Scbtt, 60, 8 L. J. C. P. 361. 335, 4 E. E. 680; p. 50, above. 
 
 (o) Austin V. 6. W. R. Co. (1867), L. (?) CMnery v. Viall (1860), 5 H. & N. 
 
 E. 2 Q. B. 443, where the jadgmeut of 288, 29 L. J. Ex. 180; p. 445, above. 
 Blackbnm J. gives the true reason. See 
 further below. 
 
654 SPECIAL EELATIONS OF COUTKACT AND TOKT. 
 
 Yet the converse of this rule does not hold without quali- 
 fication. 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 afi^ord a better reinedy 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 (r). 
 
 In modern view tbe obligation is wliolly in contract. 
 
 Now that forms of pleading are generally abolished or 
 greatly simplified, it seems better to say that wherever 
 there is a contract to do something, the obligation of the 
 contract is the only obligation, between the parties with 
 regard to the performance, and any action for failure or 
 negligence therein is an action on the contract; and this 
 whether there was a duty antecedent to the contract or 
 not. So much, in efi"ect, 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 "founded on contract" or " founded on 
 tort" (s). 
 
 From this point of view the permanent result of the 
 older theory has been to provide a definite measure for 
 duties of voluntary diligence, whether undertaken by con- 
 tract or gratuitously, and to add implied warranties of 
 exceptional stringency to the contracts of carriers, inn- 
 keepers, and those others (if any) whose employments fall 
 
 (r) Marzetti v. Williams (1830), 1 B. & It is impossible to reconcile tlie grounds 
 
 Ad. 415; action by customer against of this decision wltli tliose of Pozzi t. 
 
 banker for dishonouring clieque. Shipton (1839), 8 A. & E. 963, 8 L. J. Q. B. 
 
 (8) Fleming v. Manchester, Sheffield ^ 1 ; p. 652, above. 
 Lincoliushire E. Co. (1878), 4 Q. B. D. 81. 
 
LIMITS OF THE RULE. ' 655 
 
 under the special rule attributed to the " custom of the 
 realm" (0- 
 
 Liimits of the rule. 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 Jiis contract; that is, where the facts are 
 such that a cause of action would reriiain if some necessary 
 element of contract, consideration for example, were sub- 
 tracted, Peter can, so to speak, waive John's promise if he 
 think fit, and treat him in point of form as having com- 
 mitted a wrong; but in point of substance he cannot there- 
 by make John's position worse. In saying this, however, 
 we are still far from saying that there can in no case be a 
 relation between Peter and John which includes the facts 
 of a contract ( and to that extent is determined by the obli- 
 gation of the contract), but in some way extends beyond 
 those facts, and may produce duties really independent of 
 contract. Much less have we said that the existence of such 
 a relation is not to be taken into account in ascertaining 
 what may be John's duties and liabilities to William or 
 Andrew, who has not any contract with John. In pursuing 
 such questions we come upon real difficulties of principle. 
 This class of cases will furnish our next head. 
 
 (t) It has been snsgested that a ship- ion was reversed on appeal, 1 C. P. D. 
 
 owner may be under this responsibility, 123, 15 L. J. 0. P. 697, and the proposi- 
 
 not because he Is a common carrier, but tlons of the Court below specifically 
 
 by reason of a distinct though similar controverted by Cockburu 0. J., see 1 C. 
 
 custom extending to shipowners who P. D. at pp. 126 sqg. I am not aware of 
 
 carry goods for hire without being com- any other kind of employment to which 
 
 mon carriers; Nugent y. Smith (1876), 1 the "custom of the realm" has been 
 
 O. P. D. U,15 L. J.O. P. 19; butthe decis- held to apply. 
 
656 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 II. — Concurrent Causes of Action. 
 
 Concurrent 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 contract, if any, 
 is at all events a tort ; 
 
 (b) Cases wh^re 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. 
 
 Cases of tort, whether contract or no contract be- 
 tween same parties, (a) There are two modern railway 
 cases in which the majority of the Court held the defend- 
 ants liable on a contract, but it was also said that even if 
 there was no contract there was an independent cause of 
 action. In Denton v. Great Northern Railway Com- 
 pany (m), an intending passenger was held to have a 
 remedy for damage sustained by acting on an erroneous 
 
 (m) 5 E. & B. 860, 25 L. J. Q. B. 129 doubtlnl tort and the breach of a doubt- 
 
 0836), Bee p. 269 above, and Principles ful contract were allowed to save one 
 
 of Contract, 5th ed. 15, 16. The case Is another from adequate criticism, 
 perhaps open to the remark that a 
 
 Gases of tort regardless of contract. Supporting the text, vide 
 Frink v. Potter, 17 111. 400; Havens v. Hartford etc. R. Co., 28 Conn. 69; 
 Hammond v. N. E. K. Co., 6 S. C. 130; Helm v. McCaughan,32 Miss. 17; 
 New Orleans, etc. E. Co. v. Hurst, 36 Miss. 660; Cregin v. Brooklyn & C. 
 K. Co., 75 N. Y. 192; Ames v. Union R. Co., 117 Mass. 541 ; Pennsylvania 
 Co. ». Hoagland, 78 Ind. 203. Railroads are certainly liable In an action 
 on contract for damages resulting to patrons from errors in tlieir pub- 
 lished time tables. Gordon ». Manchester, etc. R. Co., 52 N. H. 596; 
 Sears v. Eastern R. Co., It Allen, 433j Weed v. Panama R. Co., 17 N. T. 
 362. 
 
INDEPENDENT CAUSES OF ACTION. 657 
 
 announcement in the company^s current time-table, prob- 
 ably 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 Railway 
 Company {v), an action for harm suffered ia some acci- 
 dent of which the nature and particulars are not reported, 
 the plaintiff was a young child just above the age up to 
 which children were entitled to pass free. The plaintiff's 
 mother, who had charge of him, took a ticket for herself 
 only. It was held* that the company was liable either on 
 an entire contract to carry the mother and the child 
 (enuring, it seems, for the benefit of both, so that the 
 action was properly brought by the child) (w), or inde- 
 pendently 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 prop- 
 erty 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 dili- 
 gence required, as towards a passenger with whom there 
 is an actual contract, is not so clear on principle (2). The 
 point is not discussed in any of the cases now under review. 
 Again if a servant travelling with his mastef 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 
 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 accepted the servant 
 
 (u) L. K. 2 Q. B. 442 (1867). (2^) See Chap. XII, p. 627 above. 
 
 (w) Per Lnsh J. at p. 447. (2) See Mogatt v. Bateman (1869), L. R. 
 
 (a) Per Blackburn J. at p. 445, and 3 P. C. 115. 
 
 see per Grove J. in Foulkes v. Metrop. (a) Suppose the master by accident 
 
 District Jl. Co. (1880), 4 0. P. D. at p. had lelt. his money at home, and the 
 
 279 48 L. J. C. P. 655. servant had paid both fares out o£ his 
 
 42 
 
658 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 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 plaintiff in 
 a case of this kind must make his choice of remedies, and 
 cannot have a double compensation for the same matter, 
 first as a breach of: contract and then as a tort; at the 
 same time the rule that the defendant's liability must not 
 be increased by varying the form of the claim is not here 
 applicable, since the plaintiff may rely on the tort not- 
 withstanding the existence of doubt whether there be any 
 contract, or, if there be, whether the plaintiff can sue on it. 
 
 Contract " implied in law ' ' and waiver of tort. On 
 
 the other hand we have cases in which an obvious tort is 
 turned into a much less obvious breach of contract with 
 
 own money: conld it be argued that rac* 7?. Co. (1851), 11 C. B. 655, 21 L. J. C. 
 
 the master had no contract with the P. 34; approved by Blackburn J. in 
 
 company? Austin, v. G. W. U. Co., notfe (v), p. 657. 
 (6) Marsliall v. York, Neiucastle tf Ber- 
 
 Contract " implied in law " and -waiver of tort. Numerous decisions 
 in the United States hold that assumpsit cannot be maintained unless 
 the property of which the plaintiff was deprived has been converted into 
 money. Noyes v. Loring, 55 Me. 408; Miller v. King, 67 Ala. 575; Jones 
 V. Hoar, 5 Pick. 285; Sanders v. Hamilton, 3 Dana, 550; Barlow v. Stal- 
 ■w*)ith, 27 Ga. 117; Willett v. Willett, 3 Watts, 277; Mann v. Locke, 11 N. 
 H. 246; Smith v. Jernigan, 83 Ala. 256; 3 So. Eep. 515; Saville v. Welch, 
 68 Vt. 683; Miller v. King, 67 Ala. 575; Morrison v. Rogers, 3 111. 317; 
 Emerson v. McNamara, 41 Me. 565; O'Reer v. Strong, 13111. 688-^ Wagner 
 ». Peterson, 83 Pa. St. 238; PearsoU v. Chapin, 44 Pa. St. 9; Township of 
 Buckeye v. Clark, 90 Mich. 432; 61 N. W. Rep. 528; Elliott v. Jackson, 3 
 Wis. 649; Bethlehem v. Perseverance Eire Co., 81 Pa. St. 445; Pike v. 
 Bright, 29 Ala. 332; Hawk v. Thoru, 5t Barb. 164; Stearns D. Dillingham, 
 22 Vt. 624; Carleton v. Haywood, 49 N. H. 314; Isaacs v. Herman, 49 
 Miss. 449; Guthrie y. Wickliffe, 1 A. K. Marsh. 83. 
 
 But other cases hold that if the defendant has In any manner converted 
 the property to his use, sent on an implied contract may be maintained. 
 Evans v. Miller, 58 Miss. 120; Budd v. Hiler, 27 N. J. 43; Welch v. Bagg, 
 12 Mich. 42; Norden v. .Jones, 33 Wis. 600; Bakers. Cory, 15 Ohio, 9; 
 Lebeaume v. Hill, 1 Mo. 643; Hill v. Davis, 3 N. H. 384; Bowen v. School 
 
IMPLIED WARRANTY OF AGENT'S AUTHORITY. 659 
 
 the undisguised purpose of giving a better and more con- 
 venient remedy. Thus it is an actionable wrong to retain 
 money paid by mistake, or on a consideration which has 
 failed, and the like ; but in the eighteenth century the fiction 
 of a promise " implied in law " to repay the money so 
 held was introduced, and afforded "a very extensive and 
 beneficial remedy, applicable to almost every case where 
 the defendant bus received money which ex aequo et bono 
 he ought to refund" (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 contract. Hence the 
 late Mr. Adolphus wrote in his idyllic poem "The Cir- 
 cuiteers " : 
 
 " Thoughts much too deep for tears subdue the Court 
 When lassumpsit bring and godlike waive a tort " (d). 
 
 This kind of action wa& much fostered by Lord Mans- 
 field, whose exposition confessed the fiction of the form 
 while it justified the utility of the substance (e). 
 
 Implied warranty of agent's authority (Collen v. 
 "Wright). Within still recent memory an essentially simi- 
 lar fiction of law has been introduced in the case of an 
 
 (c) Blacbst. iii. 163. (c) Moses t. MacFerlan, 2 Bnrr. 1005 J 
 
 (d) L. Q. E. i. 233. cp. Leake on Contracts, 1st ed. 39, 48. 
 
 Distr., Mich. 149; Webster v. Drinkwater, 5 Me. 319; Floyd i). Wiley, 1 
 Mo. 430; Fiquant v. Allison, 12 Mich. 328; Ford v. Caldwell, 3 Hill, 248; 
 Tightmeyer v. Mongold, 20 Kan. 90; Fuller v. Duren, 36 Ala. 73. 
 
 Implied warranty of agent's authority. In the case of Jelts ». 
 York (10 Gush. 395; 50 Am. Dec. 791) the court said: "If one falsely 
 represents that he has authority, by which another, relying on the repre- 
 sentation, is misled, he is liable; and by acting as agent for another, 
 -when he is not, though he thinks he is, he tacitly and impliedly represents 
 himself authorized without knowing the fact to be true, it is in the nature 
 of a false warranty, and he is liable. But in both cases his liability is 
 founded on the ground of deceit, and the remedy Is by action a tort." 
 
660 SPECIAL RELATIONS OF OONTKACT AND TORT. 
 
 ostensible ao-ent obtaining a contract in the name of a 
 principle whose authority lie misrepresents. A person so 
 acting is liable 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 purported to 
 make in the name of an existing principal. To meet this 
 difficulty it was held in Gollen v. Wriglit ( / ) that when a 
 man purports to contract as agent there is an implied war- 
 ranty that he is really authorized by the person named as 
 principal, on which warranty he or his estate wilLbe 
 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 of action 
 capable of being expressed, under the old system of plead- 
 ing, in different ways, but two distinct though concurrent 
 causes of action, with a remedy upon either at the plaintiff's 
 election. 
 
 We pass from these to the more troublesome cases where 
 the causes of action in contract and in tort are not between 
 the same parties. 
 
 Concurrent causes of action against different parties 
 in contract and in tort, (b) There may be two causes of 
 action with a common plaintiff, or the same facts may give 
 
 (/) Ex. Ch. (1857), S E. & B. 6+7, 27 L. J. Q. B. 215. 
 
 See Duncan v. Niles, 32 111. 532; Taylor v. Shelton, 30 Conn. 122; Long 
 V. Colburn, 11 Mass. 97; 6 Am. Dec. 160; Draper v. Massachusetts, etc., 
 Co., 6 Allen, 339; Patterson v. Lippincott, 47 N. J. L. 457; 1 At. Rep. 
 606; 54 Am. Eep. 178; Ballou v. Talbot, 16 Mass, 461; 8 Am. Deo. 146; 
 Trowbridge v. Scudder, 11 Cash. 83; Sherman v. Fitch, 98 Mass. 63'; 
 Bartlett v. Tucker, 104 Mass. 340; 6 Am. Rep. 240; Tucker Mfg. Co. v. 
 Fairbanks, 98 Mass. 105; Johnson v. Smith, 21 Conn. 027; Noyes v. Lor- 
 Ing, 55 Me. 408; McCurdy v. Rogers, 21 "Wis. 197; 91 Am. Dec. 468;- 
 Warren V. Banning, 67 Hun, 649; 21 N. Y. S. Eep. 883; Porter v. Day, 44 
 111. App. 256 ; Neufeld b. Eeidler, 37 Id. 34; Cole v. O'Brien, 34 Neb. 68; 
 51 N. W. Rep. 316; Farmers' Co-Op. Trust Co. v. Floyd, 47 Ohio St. 525; 
 26 N. E. Rep. 110. 
 
DIFFERENT PARTIES IN CONTRACT. 661 
 
 Z. a remedy in contract against A. and also a remedy in 
 tort against B. 
 
 Dalyell v. Tyrer. The lessee of a steam ferry at Liver- 
 pool, having to meet an unusual press of traffic, hired a 
 vessel with its crew from other shipowners to help in the 
 work of the 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 her arrival at the farther shore, and the plaintiff 
 was hurt. He sued not the lessee of the ferry but the 
 owners of the hired vessel ; and it was held that he was en- 
 titled 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 negli 
 gence to a mere stranger lawfully on board the vessel or 
 standing on the pier at which she was brought up. The 
 plaintiff was lawfully on their vessel with their con- 
 sent, and they were not the less responsible to him because 
 he was there in exercise of a right acquired by contract 
 upon a consideration paid to some one else {g). 
 
 Fonlkes v. Met. Dist. R. Co. The- latest and most 
 authoritajiive decision on facts of this kind was given by the 
 Court of Appeal in 18«0 (A). • 
 
 (ff) Dalyell v. Tyrer C1S58), S. B. & E. P. Div. 157, 49 L. J. 0. P. 361. Cji. Berrin- 
 890, 28 L. J. Q. B. 63. ger v. G. E. It. Co. (1879), 4 0. P. D. 163, 
 
 (ft) FouUies V. Metrop.ZHst. M. Co., 5 0. 48 L. J. C. P. 400. 
 
 Concurrent causes of action against different parties in contract 
 and in tort. Sustaining the proposition (b) stated in the text it was 
 held in Kennedy v. McKay (43 N. J. L. 290; 39 Am. Rep. 581) that an 
 innocent vendor cannot be sued in tort for the fraud of his agent in 
 efEecting a sale. " In such a juncture the aggrieved vendee has, at law, 
 two and only two remiedies; the first being a rescission of the contract of 
 sale and a reclamation of the money paid by him fron^ the vendorSj or 
 a suit againt the agent, founded on the deceit." 
 
662 SPECIAL, RELATIONS OF CONTEACT AND TORT. 
 
 The plaintiff, a railway passenger lyith 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 where- 
 by the profits of the traffic were divided. The plaintiff sued 
 the District Company, and it was held that they were liable 
 to him even if his contract was with the South Western 
 Company alone. The District Company received him as a 
 passenger in their trslin, and were bound to provide car- 
 riages 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 
 truth the combined arrangements were a trap or snare," 
 and would have given the plaintiff a cause of action though 
 he had been carried gratuitously {i). He had been actually 
 received by the defendants as a passenger, and thereby 
 they undertook the duty of not exposing him to unreasona- 
 ble peril in any matter incident to the journey. 
 
 Causes of action in contract and tort at suit of differ- 
 ent plaintiffs, (c) There may be two causes of action 
 with a common defendant, or the same act or event which 
 
 (i) Bramwell L. J., 5 C. P. Div. at p. judgments leaves it capable ol doabt 
 
 159. See the jadgment of Theslger L. J. whether the defendants would have 
 
 for a fuller statement of the nature of heenliablefor a mere nonfeasance, 
 the duty. Comparison of these two 
 
 Causes ol action in contract and tort at suit of different plaintiffs. 
 In Ames v. Union Railway Company (117 Mass. 541), under the rule 
 quod sermtum amisit, the right of a master to recover for a personal 
 injury to his apprentice was sustained. See Woodward v. Washburn, 3 
 Denio, 369; Kennedys. Shea, 110 Mass. 147. 
 
DOUBLE LIABILITY. 663 
 
 makes A. liable for a breach of contract to B. may make 
 him liable for a tort to Z. 
 
 The case already mentioned of the servant travelling by 
 railway with his master would be an example of this if it 
 were determined on any particular state of facts that the 
 railway company contracted only with the master. They 
 would not be less under a duty to the servant and liable for 
 a breach thereof because they might also be liable to the 
 master for other consequences on the ground of a breach of 
 their contract witli,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 Journey 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 plaintiff 's prop- 
 erty " (m). 
 
 Alton V. Midland R. Co., qu. whether good law. The 
 
 decision of the Court of Common Pleas in Alton v. Mid- 
 land Railway Co. (n) is difficult to reconcile with the fore- 
 going authorities. A servant travelling by railway on his 
 master's business (having paid his own fare) received hurt, 
 as was alleged, by the negligence of the railway company's 
 servants, and the master sued the company for loss of ser- 
 
 (i) Marshall's ca. (1851), 11 0. B. 655, 21 goods to a railway company as A.'s own 
 
 L. J. 0. P. 34, supra, p. 658. ordinary-luggage, and the company re- 
 
 (,l)Martinv.O.I.P.I2.Co.(.lS6'l),'L.E. ceives tliem to be carried as such,B. 
 
 3 Ex. 9, per Bramwell B. at p. 14, 37 L. J. cannot sue the company for the loss of 
 
 Ex. 27. the goods. Martin's case, however, was 
 
 (as) Channell B. ibid.; Kelly C. B. and not cited. 
 Pigott B. doubted. The later case of («) 19 0. B. N. S. 213, 34 L. J. C. P. 292 
 
 Becher v. G. E. B. Co. (1870), L. R. 5 Q. B. (1865). This case was not cited either In 
 
 241, 39 L. J. Q. B. 122, is distingnlshable: Martin v. G. I. P. It. Co. or Fonlkes v. 
 
 all it decides Is that if A. delivers B.'s Met. Dlst. R. Co. 
 
664 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 vice 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 ; 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 
 stipulated for them " (o) ; and it is denied that there was 
 any duty independent of contract (p). But it is not ex- 
 plained in any of the judgments how this view is consistent 
 with the authorities relied on for the plaintiflF, and in par- 
 ticular with Marshall's case, a former decision of the same 
 Court. The test question, whether the reception of the 
 plaintiff 's servant as a passenger would not have created a 
 ,duty to carry him safely if there had not been any contract 
 with him, is not directly, 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-five years that have now 
 passed; and the correctness of the decision was disputed 
 (extra-judicially, it is true) by Sir E. V. Williams (q). A 
 directly cdntrary decision has also been given in the State 
 of Massachusetts {r). Alton's case, moreover, seems to be 
 virtually overruled by Foulkes's case, which proceeds on the 
 existence 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 saj'^ that in Alton's 
 case the master could not recover because the servant had 
 a contract with the defendant railway company, but that 
 he might have been entitled to recover if the servant had 
 
 (0) WlUes J., 19 C. B. N. S. at p. 240. arise out of the contract, but out ol the 
 
 (p) Montague Smith J. at p. 245. common law obligation ol the defend- 
 
 ig) " The Court decided this case on ants as carriers." 1 Wms. Sauud. 474. 
 
 the principle that one who is no party to Sir E. V. Williams was a member of the 
 
 a contract cannot sue in respect of the Court which decided Marshall's case, 
 
 breach of a duty arising out of the con- supra, p. 658. 
 
 tract. But it may be doubted whether (»•) Ames v. Union R. Co. (1675), 117 
 
 this was correct ; for the duty, as appears Mass. 511, expressly following Marshall's 
 
 by the series of cases cited in the earlier ca. (1851), 11 C. B. 655, 21 L. J. C. P. 34, 
 
 part of this note, does not exclusively supra, p. 658. 
 
CONFLICT OF AUTHORITIES. 665 
 
 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 gratuitously ; it 
 might also be open to argument whether the person injured 
 (apparently a commercial traveller) was 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 wrong to a servant per quod servitum amisit is of an 
 archaic character and not favoured in our modern law, and 
 this may have unconsciously influenced the Court. Neither 
 of these points, however, was discussed, nor indeed were 
 they open to discussion uppn the issues of law raised by 
 the pleadings, 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 
 evidence 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 exercise and deter- 
 mine 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, but in a distinct right. 
 
 (») Compare Mr. Henry T. Terry's Anglo-American Law," Philadelphia, 
 criticism In " Leading Principles of 1884, pp. 485-4i:3. 
 
666 SFECIAL RELATIONS OF CONTRACT AND TORT. 
 
 The cause of action and the measure of damages are 
 different (t). 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 included one of the greatest masters of 
 the common law at any time, the only legitimate conclu- 
 sion is that it was wrongly decided. 
 
 It must be admitted that the Court of Appeal itself has 
 spoken with a somewhat ambiguous voice (u). We should 
 be bound, however, to prefer the latter and more considered 
 decision even if it did not appear to be more in harmony 
 with the general current of authorities. . 
 
 Winterbottom v. Wright, &c. It appears, then, that 
 there is a certain tendency to hold that facts which consti- 
 tute a contract cannot have 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 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 consequential 
 damage. This, and only this, is the substance of the per- 
 fectly correct decisions of the Court of Exchequer in 
 Winterbottom v. Wright (a; ) and Longmeid v . Holliday (y). 
 In each case the defendant delivered, 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 otber 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 
 
 (i) See p. 272 above. are not easy to reconcile with those of 
 
 (m) The actual decision of Fleming's Foulkes's case, 
 case (p. 654 above) is on a minute point (x) 10 M. & W. 109, 11 L, J. Ex. 415 
 
 of statutory procedure, but its grounds 1812). 
 
 W 6 Ex. 761, 20 L. J. Ex. 430 (1851). 
 
CONCtTKRENCE OF BREACH OF CONTRACT WITH DELICT. 667 
 
 ordinary way, came to harm through its dangerous condition, 
 and was held not to have any cause of action against the 
 purveyor. Not in contract, for there was no contract 
 between these parties ; not in tort, for no bad faith or neg- 
 ligence on the defendant's part was proved. If bad 
 faith (s) or misfeasance by want of ordinary care (a) had 
 been shown, or, it may be, if the chattels in question 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 plkintiff 
 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). 
 
 Concurrence of breach of contract with delict in 
 Boman law. If, after this examination of the authorities, 
 we cannot get rid of the notion that the concurrence of 
 distinct causes of action ex delicto and ex contractu is a 
 mere accident of common law procedure, we have only to 
 turn to the Koman system and find the same thing occurring 
 there. A freeborn filius familias, being an apprentice, is 
 immoderately beaten by his master for clumsiness about hig 
 work. The apprentice's father may have an action against 
 
 (») Langridge v. Levy (1837), 2 M. <fc that he knew of the danger, or had any 
 
 ■\y. 519. control over the thing he worked upon 
 
 (o) George v. SMvington (1869), L. R. or the place where it was, or that the 
 
 5 Ex. 1, 38 L. J. Ex. 8. plaintiff was'^jnything more than a 
 
 (6) See Thomas v. Winchester (1852), " bare licensee." ToUit v. Sherstone, 5 
 
 6 N. Y. 397, Blgelow L. C. 602, p. 622 M. & W. 283, is another study in bad 
 above. pleading which adds nothing to the 
 
 (c) Snch Is Collis v. Seldeu (1868), L. substance of the law. So Moward v.' 
 E. 3 O. F. 495, 37 L. J. C. P. 233, where Shepherd (1850), 9 C. B. 296, exhibits an 
 the declaration attempted to make a attempt to disguise a manifestly defect- 
 man liable for creating a dangerous ive cause of action In assumpsit by de- 
 Btate of things, without any allegation daring in the general form of case. 
 
668 SPECIAL RELATIONS OP CONTRACT AND TORT. 
 
 the master either on the contract of hiring (ex locato) ((Z), 
 or at his option an action under the lex Aquilia, since the 
 excess in an act of correction which within reasonable 
 bounds would have been lawful amounts to culpa (e). It 
 is like the English cases we have cited where there was 
 held to be a clear cause of action independent of contract, 
 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 
 not between the same Parties. 
 
 Causes of action dependent on collateral contract. 
 "What did Liumley v. Gye decide? (a) When a binding 
 promise is made, an obligation is created which remains in 
 force until extinguished by the performance or discharge 
 of the contract. Does the duty thus owed to the 
 promisee constitute the object of a kind of real right 
 which a stranger to the contract can infringe, and 
 thereby render himself answerable ex delicto? In other 
 words, does a man's title to the performance of a 
 promise contain an element analogous to ownership or 
 possession ? The general principles of the law ( notwith- 
 standing forms of speech once in use, and warranted by 
 considerable authority) (_/" ) seem to call for a negative 
 answer. It would confuse every accustomed boundary 
 between real and personal 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 trespasser against Peter {g). For Peter has his 
 
 ((J) D. 19, 2. locati conduM,\Z, § 4. contract to pay a sum of money as trans- 
 (e) D. 9, 2. 5, § 3; Grueber on the Lex ferring a property in that sum; but he 
 Aquilia, p. U: the translation there forthwith adds that this property is 
 given is not altogether correct, but the " not in possession but in action mere- 
 inaccuracies do not affect the law of the ly," i. e. it is not property in a strict 
 passage. And see D. h. t. 27, §§ U, 33, sense: there is a res but not adominus, 
 Grueber, p. 230. Vermogen but not Migenthum. 
 
 (/) Blackstone, 11. 442, speaks of a {g) We have no right to say that a 
 
LUMLEY V. GUY. 669 
 
 remeidy against Andrew, and never looked to having any 
 other ; and Andrew's motives for breaking his contract are 
 not material. Yet there is some show of authority for 
 aflSrming the proposition thus condemned. It was decided 
 by the Court of Queen's Bench in Lumley v. Gyg 
 (1853) (/i), and by the Court of Appeal in Bowen v. Hall 
 (1881) (i), that an action lies, under certain conditions, 
 for procuring a third j)erson to break his contract with the 
 plaintiff. We must, therefore, examine what the condi- 
 tions of these cases were, and how far the rule laid down 
 by them really extends. 
 
 Special damage and malice are of the gist of tbe 
 action. First, it is admitted that actual damage must be 
 alleged and proved (/). This at once shows that the right 
 violated is not an absolute and independent one like a right 
 of property, for the possibility of a judgment for nominal 
 damages is in our law the touchstone of such rights. 
 Where specific damage is necessary to support an action, 
 the right which has been infringed cannot be a right of 
 property, though in some 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 plaintiiTs expense, or at any rate at causing loss or 
 damage to the plaintiff. In the decided cases the defend- 
 ant's object was to withdraw from a rival in business, and 
 procure for hiinself, 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 
 
 system of law is not conceivable where (i) 6 Q. B. Div. 833, 50 L. J. Q. B. 305; 
 
 such a doctrine would be natural or by Lord Selborne L. C. and Brett L. J.; 
 
 even necessary. But that system, il it diss. Lord Coleridge C. J. s 
 
 did exist, would be not at all like the 0') See the declaration In Immlay v. 
 
 Roman law and not much like the com- Gye. In Bmoen v. Ball it does not appear 
 
 monlaw. - how the claim for damages was framed, 
 
 ill) 2 E. & B. 216, 23 L. J. Q. B. 463; by but in the opinion of the majority of the 
 
 Orompton,Erie,andWightmanJJ.: («iss. Court there was evidence of special 
 
 Coleridge J. damage ; see 6 Q. B. D. 337. 
 
670 SPECIAL RELATIONS OF CONTRACT AND XOKT. 
 
 particular process of manufacture was known. Various 
 cases may be put of a man advising a friend, in 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 (k). And it would be 
 unreasonable in such cases to treat the giving of such ad- 
 vice, if it be acted on, as a wrong. Lucilia has imprudently 
 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, persuades 
 Lucilia to break off the match: shall any law founded in 
 reason say that Marcus is liable to an action at the suit of 
 Titius? Assuredly not: and there is no decision that 
 authorizes any such proposition even by way of plausible 
 extension. There must be a wrongful intent to do harm to 
 the plaintiff before the right of action for procuring a 
 breach of contract can be established. Mere knowledge 
 that there is a subsisting contract will not do. The breach 
 of contract is in truth material only because it excludes the 
 defence that the act complained of, though harmful and 
 intended to do harm, was done in the exercise of a common 
 right. 
 
 Question of remoteness of damage. In this view the 
 real point of difficulty is reduced to this, that the damage 
 may be deemed too remote to found the action upon. For 
 if A. persuades B. to break his contract with Z, the proxi- 
 mate cause of Z.'s damage, in one sense, is not the conduct 
 of A. but the voluntary 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 con- 
 clusive. Certainly Lord Ellenborough laid it down as a 
 general rule of law that a man is answerable only for 
 " legal and natural consequence," not for " an illegal con- 
 
 (i) See the dissenting jadgment of Sir John Coleridge in LunUey v. Gye. 
 
LUMLET V. GUY. "' C71 
 
 sequence," that is, a wrongful act of a third person (?). 
 But this opinion is now disapproved (m). 
 
 The tendency of our later authorities is to measure re- 
 sponsibility 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 con- 
 sequence at all — but is designed by A. : it would, therefore, 
 be contrary to the facts to hold that the interposition of 
 B.'s voluntary agency necessarily breaks the chain of prox- 
 imate cause and probable consequence. A proximate cause 
 need not be an immediate cause. 
 
 Liability for negligence, as we have seen (n), is not 
 always or even generally 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 consequence. The in- 
 iquity of such a defence is obvious in the grosser, examples 
 of the criminal law. Commanding, prcouring, 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 ingredient in the wrong. It may likewise 
 be said that the general habit of the law is not to regard 
 motive as distinguished from latent, and that the decision 
 in Lumley v. Gye, as here understood and limited, is there- 
 fore anomalous at best. Now the general habit is as stated, 
 but there are well established exceptions to it, of which the 
 action for malicious prosecution is the most conspicuous : 
 
 (i) Vicars v. WUcoclcs (1807), 8 East, 1, C. 577, and notes to Vicars v. Wilcochs In 
 and in 2 Sm. L. C. Sm. L. 0. 
 
 (m) See Lynch v. Knight (1861), 9 H. L. (n) Pp. 577-533, above. 
 
672 SFECIAt RELATIONS OK CONTRACT AND TORT. 
 
 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 contract, 
 or of certain kinds of contractSj forms one more exception. 
 It may be that the special damage which is the ground of 
 the action must be such as cannot be redressed in an action 
 for the breach of conti-act itself ; 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 wrong-doer 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 doctrine. In America the decision in Lumley 
 V. Gye has been followed in Massachusetts (o) and else- 
 where, and is generally accepted, with some such limitation 
 as here maintained. The rule " does not apply to a case 
 of interference by way of friendly advice, honestly given ; 
 nor is it in denial of the right of free expression of 
 opinion " (jj). 
 
 (n) Walker v. Cronin (1871), 107 Mass. Cp) 107 Mass. 566. I owe the follow- 
 
 555, a case very like Boioen v. Hail, ing additional references to State reports 
 
 American doctrine. Vide Upton v. Vail, 6 Johns. 181; Gallagher 
 1). Brunei, 6 Cow. 346; Carew v. Rutherford, 106 Mass. 1. Advice 
 rashly or indiscreetly given, but without any fraudulent intention, 
 is not sufficient to support the action. Young v. Covell, 8 Johns. 23; 
 Addington v. Allen, 11 Wend. 374. But the intention need not be to 
 defraud the plaintiff in particular. Williams v. Wood, 14 Wend. 126; 
 Stafford ». Newsom, 9 Ired. 507. Fraud will be presumed from the 
 falsity. Clapton v. Cozart, 13 Smed. & M. 363. See American notes 
 under Moral or Social Duty, ante, p. 335. 
 
DAMAGE TO STKANGER BY BREACH OF PROMISE. 673 
 
 Wilful interference with contract without persuasion. 
 
 It is, perhaps, needless to consider specially the case of a 
 man wilfully preventing the performance of a contract by 
 means other than persuasion ; for in almost every such case 
 the means employed must include an act in itself unlawful 
 ( as disabling one of the contracting parties by personal 
 violence, or destroying or spoiling a specific thing contracted 
 for); and, if so, the question comes round again to the 
 general principles of remoteness of damage (q). 
 
 Danaage to stranger by breach of contract, (b) Pro- 
 curing a breach of contract, then, may be actionable if 
 maliciously done ; or a contracting party may indirectly 
 through the contract, though not upon it, have an action 
 against a stranger. Can he become liable to a stranger ? 
 We have alreaxiy seen that a misfeasance by a contracting 
 party in the performance of his contract may be an inde- 
 pendent wrong as against a stranger to the contract, and as 
 such may give that stranger a right of action (/■). On the 
 other hand, a breach of contract, as such, will generally 
 not be a cause of action for a stranger (s) . And on this 
 principle it is held by our courts that where a message is 
 incorrectly transmitted by the servants of a telegraph com- 
 pany, 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 receiver. Wilful altera- 
 tion of a message might be the ground of an action for 
 deceit against the person who altered it, as he would have 
 
 to the iindneBS of an American friend:— (g) See Mr. William Schofleld on 
 
 Sice V. Mantey, 66 N. Y. (21 Slckels) 82; " The principle of jMrnley v. Oye and its 
 
 Benton v. Pratt, 2 Wend. 385 (see p. S90 application," Harv. Law Ber. 11. 19. 
 above); Jones v. Bloclxr, 4S Ga. 331; (r) P. 662 above. 
 
 HaaUn V. Il<nister,'10 N. C. 601; Jozies v. (s) The exceptions to this rule are 
 
 Starly, 76 N. 0. 355; Dichson v. Dickson, macb wider In America than In Eng- 
 
 33 La. An. 1261 ; Bmrger v. Ctorpen«er, 2 land. 
 S. C. 7. 
 
 43 
 
674 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 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 afiect the sense of the despatch, 
 cannot be treated as a deceit (<). 
 
 1 
 
 I 
 
 Position of receiver of erroneous telegram : different 
 views In England and U. S. " In America, on the other 
 hand, one who receives a telegram which, owing to the 
 negligence of the telegraph company, is altered or in other 
 
 (t) Dickson v. Beater's Telegram Oo. ffropft Co. (1869), L. R. 4 Q. B. 706, 38 L. J. 
 (1877), 3 0. P. Div. 1, 47 L. J. C. P. 1, con- Q. B. 249. 
 firming Playford v. U. K. Electric Tele- 
 
 Position ol receiver ol erroneous telegram — American doctrine. 
 " The right of the receiver of a telegram which, owing to the negligence 
 of the telegraph company, is altered or in other respects untrue, to main- 
 tain an action against the telegraph company for the loss which he sus- 
 tains through acting upon that telegram, is conclusively settled in 
 America." Gray on Communications by Telegraph, 374. 
 
 This right of action has been rested on the following grounds ; (1) A 
 telegraph company is in the exercise of a public occupation and owes a 
 duty to every one beneficially interested in the message. (2) The person 
 addressed is the beneficiary of a contract. Considering these grounds 
 separately: (1) A telegraph company is in the exercise of a public call- 
 ing. Being thus bound to serve all those who wish to employ it and 
 usually relied upon to correctly communicate messages of great impor- 
 tance, from public necessity rather than from precedent has evolved the 
 right of a receiver or addressee of a message to be protected from the 
 injurious effects of misleading statements. N. Y. & W. P. T. Co. v. 
 Dryburg, 35 Pa. St. 298 ; Aiken v. W. TJ. T. Co., 5 S. C. 368, 370; Elwood 
 V. W. U. T. Co., 45 N. y. 549; Bank of California v. W. U. T. Co., 62 Cal. 
 280; 5 Cent. L. J. 265; Elsey v. Postal T. Co., 3 N. T. S. Eep. 117; W. 
 U. T. Co. V. Adams, 75 Tex. 531; 6 Law Rep. An. 844 ; 12 S, W. Rep. 857; 
 De La Grange v. S. W. T. Co., 26 La. An. 383; Tyler v. W. U. T. Co., 60 
 111. 421; 74 III. 168; W. U. T. Co. v. Blanchard, 68 Ga. 299; Leonard©. 
 N. Y. A. & B. T. Co., 41 N. Y. 644; Lowery ». W. U. T. Co., N. Y. 198; 
 W. U. T. Co. V. Neill, 57 Tex. 283 ; Rose v. U. S. T. Co., 3 Abb. Pr. (N. S.) 
 408. (2) Contrary to the rule in England and in a few States of the United 
 States, in a majority of the States it is held that one who was not a party 
 to a contract can sue . for its breach where that contract was made 
 expressly for his benefit. But it seems reasonable that the right 
 of the addressee, who is not a party to a coutract to communicate 
 
MISTAKE IN DELIVERING TELEGKAMS. 675 
 
 respects untrue, is invariably permitted to maintain an 
 action against the telegraph company for the loss that he 
 sustains through acting upon that telegram: " the latest 
 commentator on the American authorities, however, finds 
 the reasoning of the English courts difficult to answer (u). 
 
 (u) Gray on Communication by Telee culpa in cimtrahendo,, hnt the lamented 
 
 grapli (Boston, 1885), §§ 71-73, wher- anther's Ingenuity will not persuade 
 
 authorities are collected. And see many common lawyers that it has. And 
 
 Wharton on Contracts, §§ 791, 1056, who if it had, I fail to see how that could 
 
 defends the American rule on somewhat aSect the position of parties between 
 
 novel speculative grounds. Perhaps the whom there is not eVen the offer of a 
 
 common law ought to have a theory of contract. 
 
 the message, to sue as beneficiary for a breach thereof, should be 
 restricted to those cases where the message was dispatched for his 
 special benefit. Hendrick v. Lindsay, 93 U. S. 143 ; Kaufman v. United 
 States Nat. Bank (Neb.), 48 N. W. Rep. 738; G., C, & S. F. Ry. Co. v. 
 Levy, 59 Tex. 563; Garnsay v. Rogers, 47 N. Y. 233; Coleman u. Whitney, 
 62 Yt. 123; 20 At. Rep. 322; So RoUe v. W. U. T. Co., 56 Tex. 308; Martin 
 ■0. W. U. T. Co., 1 Tex. Civ. App. 143; 20 S. W. Rep. 860; W. U. T. Co. 
 V. Beriuger, 84 Tex. 38, The settled rule in America is that telegraph 
 companies are liable for all damage occasioned the addressee by delaying 
 delivery of the message. " It seems reasonable, that for all purposes of 
 liability, the telegraph company shall be considered as much the agent 
 of him who receives as of him who sends the message." New York, • 
 etc., Tel. Co. v. Drybnrg, 35 Pa. St. 303; 78 Am. Dec. 338. See W.V. 
 Tel. Co. V. Newhouse (Ind. App.) 33 N. E. Rep. 800; W. V. T. Co. v. 
 Lindley, 89 Ga. 484; 155 S..E. Rep. 636; W. U. T. Co. v. Jones (Tex.), 
 16 S. W. Rep. 1006. And see 24 Wkly. Law Bui. 147; 33 Cent. Law J. 147. 
 
 "It may be assumed that an entire stranger, who does not sustain 
 towards either the sender or addressee the relation of principal to his 
 agent cannot maintain the action ; because there is neither any privity of 
 contract as to him, nor is he in the contemplation of both parties to the 
 transaction which takes place when the dispatch is sent." Thompson on 
 Electricity, citing Deslottes v. Baltimore, etc. Tel. Co., 40 La. An. 183; « 
 21 Am. & Eng. Corp. Cas. 158; 3 So. Rep. 566; 3 Rail. & Corp. L. J. 342. 
 
 Where the person addressed was the original employer of the tele- 
 graph company, the company becomes responsible to the addressee on 
 the contract. Durkee v. Vt. C. Rd. Co., 29 Vt. 127. 
 
 Where the addressee does not sustain towards the sender the relation 
 of a principal to his agent, he cannot sue on contract but his remedy is 
 in tort. The theory of such an action is misfeasance. W. U. T. Co. v. 
 Dubois, 128 111. 248; 21 N. E. Rep. 4; 15 Am. St. Rep. 109. 
 
 As to liability for mental condition resulting from delinquent delivery 
 of telegraphic message, see ante, p. 55. 
 
676 SPECIAL EELATIONS OF CONTRACT AND TORT. 
 
 And the American decisions appear to rest more on a strong 
 sense of public expediency than on any one definite legal 
 theory. The suggestion that there issomethinglike 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 fot the theory of 
 misrepreseniation than our courts have admitted ; but this 
 too is precarious ground. The real question of principle 
 is whether a general duty of using adequate care can be 
 made' out. I am not bound to undertake telegraphic 
 business at all ; but if I do, am I not bound to know that 
 errors in the transmission of messages may naturally and 
 probably damnify the receivers ? and am I not tberef ere 
 bound, whether I am forwarding the messages under any 
 contract or not, to use reasonable care to ensure correct- 
 ness ? 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 delivei-y to the 
 receiver of those words or figures which the sender intended 
 him to receive? If the affirmative answer be right, the 
 receiver who is misled may have a cause of action, namely 
 for negligence in the execution of a voluntary undertaking 
 g,ttepded with obvious risk. But a negative answer is 
 given by our own courts, on the ground that the ordinary 
 law of negligence has never been held to extend to negli- 
 gence 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 messagCj whether by telegraph or otherwise, 
 is nothing but a statement that certain words have been 
 communicated by the sender to the messenger for the 
 purpose of being by him communicated to the receiver. 
 It may perhaps be said against this that the nature of 
 telegraph business creates a special duty of diligence in 
 correct statement, so that an action as for deceit will lie 
 
 (x) See especially JJenton v. G. N'. M. Co. (1856), 5 J5. & B. 860,35 h- J. Q,'B. 129, P- 
 373 above. 
 
THE CONFLICT CONSIDERED ON PRINCIPLE. 677 
 
 without actual fraud. But siaee the recent cases follow* 
 ing Derry v. feek {y) this could hardly he argued in 
 England. Perhaps it would be better to say that the 
 systematic undertaking to deliver messages in a certain 
 way (much more the existence of a Corporation for that 
 special purpose) puts the case in a category of its own 
 apart from representations of fact made in the common 
 intercourse of life, or the repetition of any such repre- 
 sentation. Thus we should come back to the old ^ound 
 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 question of contract or war- 
 ranty. Such liability would not necessarily be towards 
 the receiver only, though damages incuried by any other 
 person would in most cases be too remote. The Court of 
 Appeal has for the present disposed of the matter for this 
 country, and inland communication by telegraph is now in 
 the hands of the Postmaster-General, who could not be 
 sued even if the American doctrine were adopted. With 
 regard to foreign telegrams, however, the rule is still of 
 importance, and until the House of Lords has spoken it is 
 still open to discussion. ^ 
 
 The conflict coBSldered on principle. In the present 
 writer's opinion the American decisions, though not 
 all the reasons given for them, are on principle cor- 
 rect. The undertaking to transmit a sequence of letters 
 or figures (which may compose significant words and sen- 
 tences, but also may be, and often are, mere unintelligible 
 symbols to the transmitter) is a wholly different thing 
 from the statement of an alleged fact or the expression of 
 a professed opinion in one's own language. Generally 
 speaking,^ th©re is no such thing as liability for negligence 
 
 (y) See p. 372 aljove. 
 
678 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 in word as distinguished from act ; and this difference is 
 founded in the nature of the thing (z). It a man asserts 
 as true that which he does not belifeve to be true, that is 
 deceit; and this includes, as we have seen, malsing asser- 
 tions as of his own knowledge about things of which he is 
 consciously ignorant. If he only speaks, 3,nd purports to 
 speak, according to his information and belief, then he 
 speaks for his own part both honestly and truly, though 
 his information and belief may be in themselves erroneous, 
 and though if he had taken ordinary pains his information 
 might have been better. If he expresses an opinion, that 
 is his opinion for what it is worth, and others must esti- 
 mate its worth for themselves. In either case, in the 
 absence of a special duty to give correct information or a 
 competent opinion, there is no question of wrong-doing. 
 If the speaker has not come under any such duty, he was 
 not bound to have any information or to frame any opinion. 
 But where a particular duty has been assumed, it makes no 
 difference that the speaking or writing of a form of words 
 is an incident in the performance. If a medical practitioner 
 miscopies a formula from a pharmacopoeia or medical 
 treatise, and his patient is poisoned by the druggist making 
 it up as so copied, surely that is actionable negligence, and 
 actional)le apart from any contract. Yet his intention was 
 only to repeat what he found in the book. It is true that 
 the prescription, even if he states it to be taken out of the 
 book, is his prescription, and he is answerable for its being 
 a fit one ; if it be exactly copied from a current book of 
 good repute which states it to be applicable to such cases 
 as the one in hand, that will be evidence, but only evidence, 
 that the advice was competent. 
 
 Again the negligent misreading of an ancient record by 
 
 (») The law of defamation stands Ribility qualilicd by absolate exceptiona ; 
 
 apart : bnt It is no exception to t&e pro- and wliero malice has to be proved, the 
 
 position in the text, for it is not a law grossest negligence is only evidence of 
 
 requiring care and caation in greater or malice, 
 less degree, but a law of absolute rcspon - 
 
UNCERTAINTY IN ENGLISH DOCTEINE. 679 
 
 a professed palseographist might well be a direct and natural 
 cause of damage ; if such a personj being employed under a 
 contract with a solicitor, made a negligent mistake to the 
 prejudice of the ultimate client, is it clear that the client 
 might not have an action against him ? If not, he may 
 with impunity be negligent to the verge of fraud ; for the 
 solicitor, not being damnified, would have no cause of 
 action, or at most a right to nominal damages on the con- 
 tract. The telegraph clerk's case is more like one of these 
 (we do not say they ■ are precisely analogous ) than the mere 
 reporting or repetition of supposed facts. There remains, 
 no doubt, the argument that liability must not be in- 
 definitely extended. But no one has proposed to abolish 
 the general rule as to remoteness of damage, of which the 
 importance, 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 
 that even on the American view damages could not be re- 
 covered for loss arising out of an error in a ciphered tele- 
 gram, for the telegraph company would have no notice 
 of what the natural and probable consequences of error 
 would be (a). 
 
 Uncertainty still remaining in English doctrine. Tak- 
 ing together all the matters hitherto discussed in this chapter, 
 it appears that different views and tendencies have on differ- 
 ent occasions prevailed even in the same court, and that 
 we are not yet in possession of a complete and consistent 
 doctrine. Fleming's case (6) is reconcilable, but only just 
 reconcilable, with Foulkes's case (c) and Dickson v. Renter's 
 Telegram Go. {d), though not directly opposed to jBowere 
 v. Hall (e), is certainly not conceived in the same spirit. 
 
 (o) Op. Sanders v. Stuart (1876), 10. (c) 5 0. P. Div. 157, 49 L. J. C. P. 361. 
 
 P. D. 326, 45 L. J. C. P. 682. (d) 3 C. P. Dlv. 1, 47 L. J. 0. P. 1. 
 
 (6) 4 Q. B. Dlv. 81. (e) 6 Q. B. Dlv. 333, 50 L. J. Q. B. 305. 
 
680 SPECIAL RELATIONS OF CONTKACT AND TOKT. 
 
 Character of morally Innocent acts affected by extra- 
 neous contract, (c) There are likewise cases where an 
 innocent and even a prudent person will find himself with- 
 in his right, or a wrong-doer, according as there has or has 
 not been a contract between other parties under which the 
 property or lawful possession of goods has been trans- 
 ferred. If a man fraudulently acquires property in goods, 
 or gets delivery of possession witii 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 an/ 
 form of bailment) he can give an indefeasible title by 
 delivery over to a buyer- or lender for valuable consider- 
 ation 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 transfer of possession. He may 
 obtain possession by a mere trick, for example by pretend- 
 
 ( /) See the principle explained, and facta. In Pease v. Gloahec, L. E. 1 P. C. 
 worked out in relation to complicated 219, 35 L. J. P. G. 66. 
 
 Character of morally innocent acts affected by extraneous con- 
 tract. The rule that a bona fide purchaser for a valuable consideration, 
 from a seller who has obtained goods through fraud, is protected, is 
 followed in numerous decisions in the United States. The equity of this 
 rule rests in the fact that the original seller has invested his buyer with 
 the possession and apparent ownership of the goods and must suffer 
 from his misplaced confidence rather than the subsequent and misled 
 innocent purchaser. Barnard v. Campbell, 65 Barb. 286; 55 N. Y. 456; 
 58 N. T. 73; Jones v. Christian, 86 Va. 1017; Carme v. Eauh, 100 Md. 247; 
 Frey «. Harrison, 29 111. App. 300; Globe Milling Co. v. Mijaeapolis 
 Elevator Co., 44 Minn. 163; Saltus v. Everett, 20 Wend. 279; 32 Am. Dec. 
 541; Benedict t). Williams, 48 Hun, 123; Dows v. Bush, 28 Barb. 157; 
 Hall v. Hinks, 21 Md. 417; Cockran v. Stewart, 21 Minn. 435; Root ». 
 French, 13 Wend. 570; 28 Am. Dec. 428; William v. Russell, 39 Conn. 
 406; First Nat. Bank v. Cook Carriage Co., 70 Miss. 587; 12 So. Rep. 
 598; Rowley v. Bigelow, 12 Pick. 307; 23 Am. Dec. 607; A. H. Whitney 
 Co. V. Burnham, 48 Mo. App. 340; Sword v. Young, 89 Tenn. 126 ; 14 S. W. 
 Rep. 481; Id. 604; Tray'wick v. Keeble, 93 Ala. 498; 8 So. Rep. 573; Rob- 
 inson V, Pogue, 86 Ala. 276; 5 So. Rep. 685; Prey u. Harrison, 29 111. 
 App. 300; Nefe v. Landls, 110 Pa. St. 204; 1 At. Rep. 177 
 
MORALLY INNOCENT ACTS. 681 
 
 ing to be another person with whom the other party really 
 intends to deal(g'), or the agent of that person (A). In 
 such a case a third person, even if he has no means of 
 knowing the actual possessor's want of title, cannot acquire 
 a good title from him unless the sale is in market overt, or 
 the transaction is within some special statutory protection, 
 as that of the Factors Acts. He deals, however innocently, 
 at his peril. Iff these -cases there may be hardship, but 
 there is nothing anomalous. It is not really a contract 
 between other parties that determines whether a legal 
 wrong has been committed or not, but the existence or 
 non-existence of rights of property and possession — rights 
 available against all the world — which in their turn exist 
 or not according as there has been a contract, though per- 
 haps vitiated by fraud as between the original parties, or a 
 fraudulent obtaining of possession (i) without any con- 
 tract. The question is purely of the distribution of real 
 rights as affording 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, iu 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 
 
 (p) Cfumdp V. Lindsay, 3 App. Ca. 459, a thief has possession in law, though a 
 
 47 L. J. Q. B. 481. wrongful possession, and the lawful 
 
 (ft) Hardman V. Booth, 1 H. & C. 803, possessor of goods cannot at common 
 
 32 L. J. Ex. 105. law steal them, except in the cases of 
 
 (i) It will be remembered that the " breaking bulk " and the like, where It 
 
 essence of trespass de bonis asportatis Is Is held that the fraudulent dealing deter- 
 
 depriving the true owner of possession : mines the bailment. 
 
682 SPECIAL RELATIONS OF CONTKACT AND TORT. 
 
 of a contract, is only part of the incidents determining the 
 legal situation on which the alleged tortious act operates. 
 There are two questions, always conceivably and often 
 practically distinct: Were the goods in question the goods 
 of the plaintiff? Did the act complained of amount to a 
 trespass or conversion? Both must be distinctly answered 
 in the affirmative to make out the plaintiff's claim, and they 
 depend on quite different principles (k). 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 damages, &c. With regard to the meas- 
 ure of damages, the same 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 determined, 
 as we have seen, by the extent to which the. harm suffered 
 by the plaintiff was a natural and probable consequence of 
 the act. This appears to be also the true measure of lia- 
 bility for breach of contract ; " the rule with regard to 
 
 (S) See passim In the opinions delivered in Hollins v. Fowler, L. E. 7 H. L. 757, H 
 L. J. Q. B. 169. 
 
 Measure ol damages. Upon this subject the American decisions 
 seem to substantially agree with the English rule. "The value of 
 property constitutes the measure or the element of damages, in a great 
 variety of cases, both of tort and of contract; and where there are no 
 such aggravations as call for or justify exemplary damages, in actions 
 in which such damages are recoverable, the value is ascertained and 
 adopted as the measure of compensation for being deprived of the 
 property, the same in actions of tort and in actions upon contract. In 
 both cases, the value is the legal and fixed measure of damages, and not 
 discretionary with the jury." 1 Sutherland on Dam. (Ist ed.) 173. 
 
 The cases illustrating the application of this rule are numerous and 
 only a few are here cited. Brewster v. Landview, 119 111. 554; Bank of 
 Montgomery v. Reese, 26 Pa. St. 143; Bailey u. M. & St. P.-Ry. Co. (S. 
 
MEASURE OP DAMAGES, ETC. • 683 
 
 remoteness of damage is precisely the same whether the 
 damages are claimed in actions of contract or of tort" (Z); 
 the judgment of what is natural and probable being taken 
 as it would have been formed by a reasonable man in the 
 defendant's place at the date of the wrongful act, or the 
 conclusion of the contract, as the case may be. No doubt 
 there have been in the law of contract quite recent opinions 
 of considerable authority casting doubt on the rule of 
 Hadley v. Baxendale {m), and tending to show that a 
 contracting party can be held answerable for special con- 
 sequences 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 them- 
 selves of a common and obvious kind, such as the plaintiff's 
 loss of a difference between the contract and the market 
 price of marketable goods which the defendant fails to 
 deliver — would not of itself suffice {n). 
 
 (I) Brett M. E., The Sottimg Bill (n) Home v. Midland B. Co. (1873), 
 
 (1884), 9 P. l>iv. 104, 113, 53 L. J. P. 56. Ex. Ch., L. R. 8 0. P. 131,43 L. J. 0. P. 5'9. 
 
 (m) 9 Ex. 341, 23 L. J. Ex. 179 (1854). 
 
 D.), 54 N. W. Eep. 696; Coulson v. Panhandle Nat. Bailk, 54 Eed. Kep. 
 855; Bates v. Diamond Crystal Salt Co. (Neb.), 55 N. W. Eep. 258; 
 Corbett v. Anderson (Wis.), 54 N. W. Eep. 727; Goodell v. Bluff City 
 Lbr. Co., 57 Ark. 203; 21 S. W. Kep. 104; Adams Ex. Co. v. Egbert, 36 
 Pa. St. 360; White v. McNett, 33 N. Y. 371; Eand v. White Mts. E. Co., 
 40 N. H. 424; Pirikerston v. Manchester E. Co., 42 N. H. 424; Enders v. 
 Board Public Works, 1 Gratt. 364; Dana v. Fielder, 12 N. Y. 48; Clement. 
 V. Hawks Man. Co., 117 Mass. 363; Danforth v. Walker, 37 Vt. 239; Gan- 
 son V. Madigan, 13 Wis. 67; Hale v. Front, 35 Cal. 229; Springer v. 
 Berry, 47 Me. 330; Dustin v. McAndrews, 44 N. Y. 72; Marshall .». Piles, 
 3 Bush, 249; Camp v. Hamlin, 55 Ga. 259 ; Kennedy v. Whitewell, 4 Pick. 
 466; Gregg v. Fitzhugh, 36 Tex. 127; Bush v. Holmes, 63 Me. 417; Base- 
 man V. Rose, 40 Ala. 212; Snydam v. Jenkins, 3 Sandf. 641; Grand 
 Towner Co. v. Phillips, 23 Wall. 471; Eider v. Kelly, 32 Vt. 268 ; Hutchins 
 V. Ladd, 16 Mich. 494; Underbill v. Goff, 48 111. 198; Scott v. Eogers, 31 
 N. Y. 676 ; Blcknell v. Waterman, 5 E. I. 43 ; West v. Pritchard, 19 Conn. 
 212; Parsons v. Martin, 11 Gray, 111; Eider v. Kelly, 32 Vt. 268; White- 
 sell o. Forehand, 79 N. C. 230; Hancock v. Gomez, 50 N. Y. 669; Belle v. 
 Cunningham, 3 Pet. 59; Heinnemann v. Heard, 50 N. Y. 27. 
 
684 SPECIAL RELATIONS OF CONTEACT AND TORT. 
 
 Rule as to consequential damage : bow far alike in 
 contract and tort. But the Court of Appeal has more 
 lately disapproved this view, pointing out that a contract- 
 ing party's liability to pay damages for a breach is not 
 cfeated by his agreement to be liable, but is imposed by 
 law. "A person contemplates the performance and not 
 the breach of his contract; he does not enter into a kind 
 of second 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 " (o). 
 
 The general principle, therefore, is still the same in con- 
 tract as in tort, whatever difficulty may be found in working 
 it out in a "wholly satisfactory manner in relation to the 
 various combinations of fact occurring in practice (p). 
 
 One point may be suggested as needful to be borne in 
 mind to give a consistent doctrine. Strictly speaking, it 
 
 (o) HydroMlic Engineering Co. v. 1884) holds hj Home T. Midland B. Co.' 
 
 McBaffle (1878) , 4 Q. B. DiT. 670, per very pertinently asks where is the oon- 
 
 Bramwell L. J. at p. 674; Brett and Cot- sideration for such an undertaking, 
 ton L. JJ. are no less explicit. The time [p) As to the treatment of conae- 
 
 to be looked to is that of entering into quentlal damage where a false statement 
 
 the contract : ib. In McMahon v. Field is made which maiy be treated either as 
 
 (1881), 7 Q. B. DiT. 591, 50 L. J: Q. B. 652, a deceit or as a broken warranty, see 
 
 the supposed necessity of a special Smiift v. Green (1875), 1 C. P. D. 92, 45 L, 
 
 undertaking is not put forward at all. J. C. P. 28. 
 Mr. J. D. Mayne, though he still (4th ed. 
 
 Btile as to consequential damages. One breaking a contract is liable 
 for only sncli conseqiieaces as were a direct result of the breach, and 
 contemplated by the construction of the contract. One committing a 
 tort, without malice, is liable for all the natural consequences of the 
 wrongful acts. As it may be presumed that the contracting parties 
 contemplated the usual and natural couseqaences of a breach when the 
 contract was made, the difficulty of establishing any practical distinction 
 between the results of breach of contract and of tort, is apparent. 
 Warwick v. Hutehinson, 43 N. J. L. 61 ; Stewart v. Lanier House Co., 75 
 Ga. 582; Frohreich ». Gammon, 28 Minn. 476 j Booth v. Spuyten Duy. B. 
 M. Co., 60 N. Y. 492: Miller®. Mariners Church, 7 Greenl. 55; Lawrence 
 17. Wardell, 6 Barb. 423; Winne o. EeUy, 34 la, 339; Blagen v. Thompson 
 (Oreg.), 31 Pac. Rep. 647; Chicago & A. R. Co. v. Fisher, 38 111. App. 
 33; Ward v. Hudson River Bldg. Co., 125 N. Y. 230; 26 N. E. Rep. 266. 
 See also authorities cited in the last preceding American note. 
 
VINDICTIVE CHAKACTEB OP ACTION. 685 
 
 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 (j). 
 
 Vindictive character of action for breacli of promise 
 of marriage. Exemplaiy or vindictive damages, as a rule, 
 cannot be recovered in an action on a cbntract, 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 esti- 
 mate formed by a jury in such a case, or to prevent them 
 from giving, if so minded, damages which in truth are, 
 and I are intended to be, exemplary (r). Strictly the 
 
 (9) According to Alderson B. in of the consequence is only matter of 
 
 Hadley T. Baxendaie, it is the knowledge inference. 
 
 of " special circumstances nnder which (r) See Berry v. Da Coata (1866), L, R. 
 
 the contract was actually made " that 1 C. P. 831, 35 L. J. O. P. 191. 
 has to be looked to, i. e. the probability 
 
 Vindictive character of action for breach of promiBe of marriage. 
 In numerous American decisions it bas been held that, in actions for 
 breach of contract, the right of recovery is wholly independent of the 
 motive which induced the wrongful act or omission. Grand Tower Co. 
 V. Phillips, 33 Wall. 471; Duche v. Wilson, 37 Hun, 619; Toledo, etc. K. 
 Co. V. Roberts, 71 111. 540; Walsh v. Chicago, etc. B. Co., 42 Wis. 23; 
 Krora ». Schoonmakeri 3 Barb. 647; Sheik v. Hobson, 64 la. 146; Drohn 
 V. Brewer, 77 111. 280; Kaynor v. Nims, 37 Mich. 34; 26 Am. Rep. 493; 
 Philadelphia etc. E. Co. v. Hoeflich, 62 Md. 301 ; 50 Am. Eep. 223 ; Cady 
 V. Case, 45 Kan. 733 ; 26 Pac. Kep. 448 ; Arzaga v. Villalba, 85 Cal. 191. 
 
 Vindictive or exemplary damages are usually awarded in breach of 
 promise suits. The amount is estimated according to plaintifi's loss of 
 reputation, wealth, social position, and prospects in life, as well as the 
 endurance of mortification, pain and disgrace. Piddler v. McKlnney, 21 
 111. 308; Malone a. Eyan, 14 B. I. 614; McKlnsoy v. Squires, 32 W. Va. 
 41; 9 S. E. Eep. 55; Chellis v. Chapman, 7 N. Y. S. Eep. 78; 26 N. E. Rep. 
 308; Coryell v. Colbaugh, 1 N. J. L. 77; White w.. Thomas, 12 Ohio St. 
 313; Giese v. Schultz, 53 Wis. 462; Smith v. Sherman, 4 Cnsh. 408; Wells 
 V. Padgett, 8 Barb. 323; Wilber v. Johnson, 68 Mo. 600; Tobin v. Shaw, 
 43 Me. 331; Collins v. Mack, 31 Ark. 684; Vanderpool v. Richardson, S2 
 Mich. 336 ; Bennett v. Beam, 42 Mich. 349. 
 
686 SPECIAL EELATIONS OF CONTKACT AND TORT. 
 
 damages are by way of compensation, but they are " almost 
 always considered by the jury somewhat in poenam " (s). 
 Like results might conceivably follow in the case of other 
 breaches of contract accompanied with circumstances of 
 wanton injury or contumely. 
 
 Contracts on which executors cannot sue. In another 
 respect breach of promise of marriage is like a tort: exe- 
 cutors cannot sue for it without proof of special damage to 
 their testator's personal estate ; nor does the action lie 
 against executors without special damage (i). " Executors 
 and administrators are the representatives of the temporal 
 property, that is, the debts and goods of the deceased, but 
 not of their wrongs, except where those 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 " (u). The same rule 
 appears to hold as concerning injuries to the person caused 
 by unskilful medical treatment, negligence of carriers of 
 passengers or their servants, and the like, although the 
 duty to be performed was under a contract (a;). Positive 
 authority, however, has not been found on the extent of this 
 analogy. The language used by the Court of King's Bench 
 is at any rate not convincing, for although certainly a 
 wrong is not property, the right to recover damages for a 
 wrong is a chose in action; neither can the distinction 
 
 is) Le Blanc J. in ChamberMn v. Wil- Wllles J. in AUon v. Midland B. Co., 19 
 
 liamson (18U), 2 M. & S. 408, 414. C. B. N. S. at p. 242, 34 L. J. C. P. at p. 
 
 {«) Finlay V. Chimey (1888), 20 Q. B. 298; cp. Beckham v. Drake (1841), 8 M.& 
 
 Div. 494, 57 L. J. Q. B. 247. W. at p. 854 ; 1 Wms. Sannd. 242 ; and see 
 
 (u) Chamberlain T. Williamson, 2 M. & more in Williams on Executors, pt. 2, bk. 
 
 S. at p. lis. 3, oh. 1, § 1 ; and Eagmond y. Fitch (1835), 
 
 (2!) C/iamberlainv. Williamson^aBtiiote; 2 C. M. & R. 588. 
 
 Contracts on wbicb executors cannot sue. The right to SUQ upon 
 the breach of a promise of marriage does not survive against a party's 
 representatives unless there has been special damage. Smith v. Sherman, 
 4 Cush. 408; Shuler v. Millsape, 71 N. C. 297; Kelley v. Riley, 106 Mass. 
 330; Wade v. Kalbfleisoh, 50 N. Y. 282; Grubb v. Suit, 32 Gratt.203. 
 
CONTRACTS ON WHICH EXECUTORS CANNOT SUE. 687 
 
 between liquidated and unliquidated damages afford 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 
 personal 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. 
 
TABLE OF CASES CITED. 
 
 The Beferences are to Pages. 
 
 Abbey v. Dewey, 375. • 
 
 Abbott V. Abbott, 64. 
 
 Abbott V. Booth, 264. 
 
 Abbott V. Kansas City etc. E. Co., 153. 
 
 Abel V. President, etc. Co., 552. 
 
 Abend 17. Terrs Haute & I. K. Co., 120, 193. 
 
 Abernathy v. Wheeler, 439. 
 
 Abraham v. Beynolds, 642. 
 
 Abrahams v. Deakin, 109. 
 
 Abrahams v. Kidneyj 278, 
 
 Abrath V. N. E. E. Co., 396. 
 
 Abt V. Burgbeim, 204. 
 
 Acheson v. Miller, 231. 
 
 Aohron v. Piper, 286, 291. 
 
 Ackers «. Howard, 149. 
 
 Acton V. Blandell, 178, 179, 183. 
 
 Adams v. Cole, 112. 
 
 Adams v. Cost, 100. 
 
 Adams V. Iron Cliffs Co., 120. 
 
 Adams V. Lawsod, 287, 306. 
 
 Adams v. L. & Y. E. Co., 592. { 
 
 Adams v. Main, 274. 
 
 Adams v, Marshall, 24. 
 
 Adams v. Michael, 506. 
 
 Adams v. Rankin, 295. 
 
 Adams v. Elvers, 422, 478. 
 
 Adams v. Stone, 297. 
 
 Adams V. Trnman, 463. 
 
 Adams V, Wagoner, 1S6. 
 
 Adams V. Young, 43, 546. 
 
 Adams Ex. Co. v. Egbert, 683. 
 
 Adamsou v. Jarvis, 232. 
 
 Adcocks V. Marsh, 334. 
 
 Addie v. Western Bank of Scotland, 113. 
 
 Addington v. Allen, 375, 381, 672. 
 
 Adkin v. Newell, 267. 
 
 Adler v. Fenton, 403. 
 
 Aetna Ins. Co. v. Boone, 29. 
 
 Aetna Life Ins, Co. v. France, 352. 
 Aetna Life Ins. Co. v. Paul, 67. 
 Aetont;. Cooper, 142. 
 A.-G. V. Cambridge Consumers' Gas Co., 
 
 523. 
 A.-G. V. Oolney Hatch Lunatic Asylum, 
 
 627. 
 A.-G.v. Sheffield Gas Consumers' Co., 
 
 523. 
 A.-G. V. Tomllne, 175. 
 Agincourt, The, 152. 
 Ahem v. Collins, 260. 
 Able V. Belnbach, 505. 
 Aiken ». W. V. T. Co., 674. 
 Alnsworth». Partello, 438. 
 Alrd V. Fireman's Journal Co., 324. 
 Akerly v. Haines, 281. 
 Alabama etc. E. Co. v. Waller, 125. 
 
 Alabama, G. S. E. Co. v. Arnold, 220. 
 Alabama, G. S. E. Co. v. Chapman, 43. 
 Alabama, G. S. E. Co. v. Frazier, 220. 
 Alabama, G. S. E. Co. v. Sellers, 220. 
 Alhee v. The Chappaqua Shoe Mfg. Co., 
 
 534. 
 Albion V. Hetrick, 633. 
 Albro V. JaquiCh, 84. 
 Alden v. Wright, 375. 
 Alder i>. Buckley, 27. ■ 
 Alderman v. French, 316, 324. 
 Alderson v. Waistell, 162. 
 Aldred's Case, 500. 
 Aldrich V. Brown, 312. 
 Aldrich v. Gorham, 43. 
 Aldrich V. Howard, 505. 
 Aldrich V. Parnell, 230. 
 Aldrich V. Press Printing Co., 66. 
 Aldrich w. Wright, 203, 206. 
 Alexander v. Alexander, 294. 
 Alexander v. Big Eapids, 70. 
 Alexander v. Dyer, 213. 
 Alexander v. Fisher, 429. 
 Alexander v. Hard, 422.' 
 Alexander v. Humber, 534. 
 Alexander v. Jenkins, 303. 
 Alexander v, Kerr, 530. 
 Alexander u. Louisville etc. E. Co., 643. 
 Alexander v. Morse, 225. 
 Alexander v. Town of New Castle, S74. 
 Alexander v. North Eastern E. Co., 826. 
 Alexander v. Southey, 437. 
 Alexander v. Swackhamer, 434. 
 Alexander Mining Co. v. Paidter, 422. 
 Alger V. Lowell, 678. * 
 
 Alger V. Mississippi etc. E. Co., 611. 
 Allaire v. Whitney, 214. 
 Allbntt V. General Council etc., 146, 341. 
 Allegheny v. Zimmerman, 50, 6U6. 
 Allen V. Codman, 396, 
 Allen V. Crofoot, 328. 479. 
 Allen V. Feland, 469. 
 Allen V. Fiske, 459. 
 Allen V. Gray, 138. 
 Allen «;. Hallet, 351. 
 Allen V. Hart, 358. 
 Allen V. Hillman, 300. 
 Allen V. Kirk, 402. 
 Allen V. Lonard, 263. 
 Allen V. L. & S. W. E. Co., 109. 
 Allen V. Lyon, 487. 
 Allen t>. Martin, 483. 
 Allen V. McCullongh, 64. 
 Allen V. Mercantile M. Ins. Co., 606. 
 Allen V. News Pub. Co., 288. 
 Allen V. Eallroad Co., 336. 
 Allen V. State, 606, 485. 
 Allen V. Truesdell, 37. 
 Allen V. Willard, 545. 
 
 44 
 
 (689) 
 
690 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Allen V. Wortham, 310. 
 . Allentown v. Kramer, 69. 
 AlllRSr V. Brooklyn Dally Eagle, 334. 
 Allison V. Utile, 9, 412. 
 Allison V. Bheom, 262. 
 Ailiapn lUfg. Co. V. McCormick, 164. 
 AUred v. Bray, 87. 
 Allsop V. Aiisbp, 294. 
 Almy V. Harris, 228. 
 Alpin V. Morton, 336. 
 Altlien V. Kelley, 225. 
 Althoif V. Wolfe, 84. 
 Alton D. Hope, 70. 
 Alton V. Midland Railway Co., 663, 664, 
 
 666, 68fl. 
 Alton, etc. E. Co. v. Bangh, 610. 
 Ambler v. Church, 138. 
 Ambergate etc. B. Co. v. Midland E. Co., 
 
 473. 
 American Express Cd.v. Patterson, 68. 
 American Fur. Co. v. United Stales, 
 
 403. 
 American Insurance Co. v. Eublman, 
 
 384. 
 Am rican M. T. Co. v. Middleton, 238. 
 American Print Works v. Lawrence, 199, 
 
 475. 
 Americus, etc. E. v. Luckie, 566. 
 Amos V. Snider, 394, 393, 396. 
 Ames V. Union E. Co., 271, 276, 656, 662, 
 . 664. 
 
 Amick V. O'Hara. 9, 40, 412. 
 Amoskeag Mfg. Co. v. Trainer, 184. 
 Amott V. btandard Assn., 312. 
 Amy V. Watertown, 245. 
 Anderson v. Beck, 260. 
 Anderson v. Burnett, 375. 
 Anderson v. Cape Fear Steamboat Co., 
 
 504, 662. 
 Anderson v. Dickie, 629, 627. 
 Anderson, City of, v. East, 537, 627. 
 Anderson v. Friend, 395. 
 Anderson v. Hill, 64. 
 Anderson v. Line, 63. 
 Anderson v. Milwaukee, etc. Ry., 239. 
 Anderson v. Minnesota & N. W. 11. Co., 
 
 633. . 
 Anderson v. EadcIiSe, 455. 
 Anderson v. Ryan, 278. 
 Anderson v. Smith, 204. 
 Anderson v. State, 149. 
 Anderson v. The E. B Ward, Jr., 576. 
 Andover v. Gould, 228. 
 Andre-sonu. Ogden, 123. 
 Andrews v. Boedecker, 91. 
 Andrews v. Desliler, 388, 391. 
 Andrews v. Green, 110. 
 Andrews v. Hopperheafer, 294. 
 Andrews v. Mason City &, Ft. D. Ey. Co., 
 
 667. 
 Andrews v. Murray, 231. 
 Andrews v. Orsbee, 63. 
 Andrews v. Wells, 310. 
 Andrews v. Woodmansee, 312. 
 Angel V. Eureka Club, 87. 
 Anheuser-Busch Brewing Assn. v. 
 
 Clarke, 225. 
 Annas v. Milwaukee, etc., E. Co., 83. 
 Annelly v. De Saussure, 448. 
 Annen v. Willard, 92. 
 Anthony v. Haney, 470. 
 Anthony v. Slald, 30. 
 Apgar V. Woolston, 395. 
 Applebee v. Percy, 614. 
 
 Aristland v. Fotterfield, 449. 
 
 Arlett V. Ellis, 615.. 
 
 Armentrout v. Moranda, 287, 288. 
 
 Armory V. Delamirle, 451, iOi. 
 
 Armstrong v. Cooley, 87, 112, 503. 
 
 Armstrong Co. v. Clarion Co., 232. 
 
 Am V. Kansas, 70. 
 
 Arnold v. Hobrook, 475. 
 
 Arp V. State, 151. 
 
 Arthur V. Case, 225. 
 
 Artman v, Walton, 454. 
 
 Arundel v. McCuUoch, 404. 
 
 Arzaga v. Yillilba, 220, 685. 
 
 Ash V. Dawnay, 479. 
 
 Ash V. Marlow, 396. 
 
 Ashbyj?. White, 148, 149, 215, 411. 
 
 Asher v. Whitlock, 451. 
 
 Ashley V. Port Huron, 70. 
 
 Ashman v. Williams, 462. 
 
 Ashworth v. Stanmix, 127. 
 
 Aston V. Nolan, 92. 
 
 Athens Mfg. Co. v. Rucker, 214. 
 
 Atchison v. Goodrich Transp. Co., 42. 
 
 Atchison v. Twine, 83. 
 
 Atchison etc. E. Co. v. Galins, 98 
 
 Atchison etc. E. Co. v. McKee, 194. 
 
 Atchison etc. R. Co. v. Moore, 123. . 
 
 Atchison, etc. It. Co. v. Randall, 110. 
 
 Atchison, etc., R. Co. v. Eigr^p, 562, 
 
 Atchison, etc.,R. Co. v. Stafford, 44. 
 
 Atchison, etc., R. Co -v. Tbul, 104. 
 
 Atkins r, Chilson, 430. 
 
 Atkins V. Johnson, 231, 310. 
 
 Atkins V. Newell, 265. 
 
 Atkinson v. Atkinson, 142. ■ 
 
 Atkinson v. Detroit Free-Press, 325. 
 
 Atkinson v. Gatcher, J42. 
 
 Atkinson v. Kewcastle Waterworks, 25, 
 
 229. 
 Atkinson v. The Illinois Milk Co., 544. 
 Atlanta, etc., 1;. Co. v. Ayres, 82. 
 Atlanta etc. E. Co. v. Ray. 668. 
 Atlanta etc. E. Co. v. Kimberly, 92. 
 Attack V. Branlwell, 478. 
 Attawey v. Cartersvllle, 110. 
 Attorney-General v. Horner. 4S7. 
 Attwood V. City of Bangor, 531. 
 Atwater v. Sawer, 651. 
 Atwater v. Tupper, 435, 436. 
 JVtwood V. Chapman, 36.9. 
 Auburn, etc., R. Co. v. Douglass, 33, 182, 
 
 224. 
 Auchmuty v. Ham, 614. 
 Auditor V. Atchison etc. R. Co., 145. 
 Augusta & K. R. Co. v. Killian, 552. 
 Aucrett v. Thompson, 142. 
 Aulay V. Birkhead, 281. 
 Austin V. Bacon, 63. 
 Austin V. Barrows, 30. 
 Austin V. Carswell, 234. 
 Austin V. Dowling, 286, 267. 
 Austin V. G. W. E. Co., 653,657,658. 
 Austin, City of, v. Eitz, 534. 
 Austin & N. W. Ry. Co. v. Beatty, 693. 
 Autcliffe V. June, 398. 
 Ayerett v. Thompson, 142. 
 Averltt». Murrell, 503. 
 Avery v. Meikle, 225. 
 Avlnger v. Railway Co., 651. 
 Avis V. Newman, 428. 
 Ayorigg i>. New York, etc., E. Co., 100. 
 Ayer v. Ashmead, 230. 
 Ayer t'. Stackey, 503. 
 Aylesworth i: St. Johns, 328. 
 
TABLE or CASES CITED. 
 
 691 
 
 Aynsley v. Glover, 510, 811. 
 Ayres t'. French, S69. 
 Ayres c. firider, 296. 
 
 B. 
 
 / 
 
 Baboock V. New Jersey Stock Yard Co., 
 506, 623. 
 
 Bachelder v. Heagan, 503. 
 
 Bachentos v. Spelcher, 369. 
 
 Backus V. Hart, 638. 
 
 Bacon v. City ot Boston, 531. 
 
 Bacon v. Mich. Cent. B. Co., 67, 331, 334. 
 
 Bacon r. Townc, 394. 
 
 Bacon r. W aters, 395, 
 
 Backhouse v. Banomi, 216, 211. 
 
 Baddeleg 1'. Earl Granville, 633. 
 
 Uadgley v. Decker, 281. 
 
 Badgley v. Hedpes, 328. 
 
 Baer v. Martin, 456. . 
 
 Bagby v. Harris, 214. 
 
 Bagley v. Cleveland Rolling Mill, 544, 
 C32. 
 
 Bailey v. Dean, 291, 328, 329. 
 
 Bailey v. Dodge, S92. 
 
 Bailey v. Glover, 245. 
 
 Bailey v. M. & St. P. Ey. Co., 682 
 
 Bailey v. Publishing Co., 331. 
 
 Bailey v. Keed, 243. 
 
 Bailey v. Tipton, 142. 
 
 Bailey v. Troy & B. B. Co., 92. 
 
 Bailey i: Wiggins, 264. 
 
 Bailey v. Wright, 472. 
 
 Bain v. Myrick, 313. 
 
 Baind r. Householder, 265. 
 
 Baird v. Shipman, 624. 
 
 BairdB, Wells, )47. 
 
 Baker v. Beers, 434. 
 
 Baker v. Bohannau, 606. 
 
 Baker v. Boston, 458. 
 
 Baker v. Braham, 266. 
 
 Baker 2'. Chicago, etc., R. Co., 462. 
 
 liaker v. Cory, 658. 
 
 Barker v. Furlong, 442, 463. 
 
 Baker v. Kinsey, 100, 108. 
 
 Baker v. Railroad Co., 586. 
 
 Baker v. Savage, 198, 534. 
 
 Baker v. Sebright, 431. 
 
 Baker v. Stone, 60. 
 
 Baker r. Young, 63, 64. 
 
 Baldwin v. Casella, 614. 
 
 Buldwin V. Elphinston, 308. ' 
 
 Baldwin v. Hayden, 201, 267. 
 
 Baldwin v. Oskaloosa Gas Light Co., 495. 
 
 Baldwin v. St. Louis etc. U. uo., 123, 552, 
 
 653, 633. 
 Baldwin v. Weed, 394. 
 Baldy v. Brakenridge, 114. 
 Ball, Ex parte, 236. 
 Ball V. Bennett. 63, 64. 
 Ball V. Bruce, 278. 
 Ball V. Evening Post Co., 324. 
 Ball V. Nye, 605. 
 Ball V. Palmers, 447. 
 Balls. Rawle8,392. 
 isall V. Ray, 607. 
 
 Ballacorkish Mining Co. v. Harrison, 177. 
 Ballantine v. Gelding, 241. 
 Ballard v. Noakes, 478, 640. 
 Ballard v. Tomlinson.lTO. 
 Ballentine v. North Mo. R. Co., 606. 
 Ballentine v. Webb, 495, 522. 
 
 The References are to Fdges. 
 
 Balling V. Klrley, 434. 
 Ballou V. Chicago, etc. R. Co., 193. 
 Ballon V. Talbot, 660. 
 Ballow V. Farnnm, 91. 
 Balme t;. Hutton, 143, 436. 
 Baltimore City Ry. v. McDonnell, 584. 
 Baltimore & O. E. Co. v. Andrews, 120. 
 Baltimore & O. R. Co. v. Baugh, 120. 
 Baltimore & O. R. Co. v. Boteler, 552. 
 Baltimore & O. R. Co. v. O'DounpIl, 43,>. 
 Baltimore & P. R. Co. v: Reanev. 29. 
 Baltimore SeY.T.R v. State, 527. 
 Baltimore, etc., E. Co. v. Boone, 40. 
 Baltimore, etc., R. Co. v. Depew,6:i3. 
 Baltimore etc. E. Co. v. Fifth Bapt. 
 
 Church, 485,504. 
 Baltimore etc. E. Co. -u. FitzpalrioK, 
 
 566. ' 
 Baltimore, etc. R. Co. v. Jones, 638. 
 B.iltimore, etc. K. Co. v. Kempt, 37. 
 Baltimore, etc. R. Co. v. McKenzie, 193. 
 Baltimore etc. E. Co. v. Eowan, .'568. 
 Baltimore etc. 11. Co. v. State, 644. 
 Baltimore, etc., B. Co. v. Sulphur 
 
 Springs, etc.. Diet., 60S. 
 Baltimore etc. E. Co. v. Woodruff, 562. 
 Baltimore E. Co. v. Richie, 81. 
 Bamlord r. Turnlcv, 600, 603. 
 Bangor, etc., R. R. v. Smith, 33. . 
 Bangs V. Little, 151. 
 Banister i). Pennsylvania Co., 99. 
 Banks v. Albright, 369. 
 Bank v. Campbell, 383. 
 Bank v. Cooper, 369. 
 Bank v. Gray, 383. 
 Bankhead v. AUoway, 363. 
 Bank of California v. W. TJ. T. Co., 674. 
 Bank of Montgomery v. Reese, 683. 
 Bank of New south VV^ales r. Ouston, 109. 
 Bank of North America v. York, 381. 
 Banks y. Wabash Western Ey. Co., 574. 
 Banner v. Clay, 261. 
 Banta v. Palmer, 358. 
 Barbee v. Armietead, 371. 
 Barbeev. Reese, 250, 576. 
 Barber v. Essex, 546. 
 Barbour v. Stephenson, 277, 281. 
 Bard v. Johti, 100. 
 Barden v. Feloh, 87. 
 Barden v. Fitch, 330. 
 Barfleld v. Britt, B26. 
 Barham v. Turbeville, 61. 
 BarhoU v. Wright, 254. 
 BarhydtB. Valk, 264. 
 Barkdoo v. Randall, 138. 
 Barker v. Braham, 87. 
 Barker v. Furlong, 436. 
 Barker v. St. Louis Dispatcn .yO., 343. 
 Barley v. Bussing, 231. 
 Barlow v. Stalworth, 65S. 
 Barnard v. Campbell, 680. 
 Barnard v. Poor, 603, 617. 
 Barnard v. Press Pub. Co., 311. 
 Barnards v. State, 201. 
 Barndt v. Frederick, 376. 
 Barnes v. Allen, 271, 273. 
 Barnes o. liarncs, 462. 
 Barnes v. Canipbi'll, 318. 
 Barnes V. Harris, 63. 
 Barnes v. Hathorn, 503. 
 Barnes v, Martin, 250. 
 Barnes v. MoOrate, 328. 
 Barnes v. Means, 27. 
 Uarues v. Trnndy, 291. 
 
692 
 
 TABLE OF CASES CITED. 
 
 The' Keferences are to Pages. 
 
 Barnes v. Ward, 206, 634. 
 
 Baruet v. Ihrie, 518. 
 
 Barnettv. Gailtord, 155. 
 
 Barnett v. Eeed, 399. 
 
 Barnett j/. Stanton, 333, 357. 
 
 Barnett v. Ward, 293. 
 
 Barney V. Bnr8tenbmder,619. 
 
 Barney v. Pinkham, 27. 
 
 Barnstable v. Thatcher, li9. 
 
 Barnam v. Minnesota Transfer Ity. Co., 
 ■ 487. 
 
 Barnnm v. Terpening, 564. 
 
 Barnaul v. Van Dusen, 610. 
 
 Barraconta, The, 630. 
 
 Barrelet v. Bellyard, 436. 
 
 Barrett ». Southern P. Co., 585. 
 
 Barrick v. Schifferdicker, 619. 
 
 Barrow v, Pase, 143. 
 
 Barrows v. Bell, 342. 
 
 Barrows v. Carpenter, 323. 
 
 Barry v. Croskey, 356. 
 
 Barstow V. Old Colony E. Co., 126. 
 
 Bartlett v. Brown, 392. 
 
 Bartletts). Christhilf, 328 
 
 Bartlett v. Happock, 631. 
 
 Bartlett ». Tucker, 660. 
 
 Bartlett, etc., Co. v. Roach, 24. 
 
 Bartley v. Eiohtmeyer, 277, 27S. 
 
 Barton ^. Dunning, 432. 
 
 Barton v. Pepin Co. Ag. Soc , 45. 
 
 Barton v. St. Louis, etc. E. Co., 544 
 
 Barton v. Syracuse, 591. 
 
 Barton v. Taylor, 145, 
 
 Barton v. Thompson, 545. 
 
 Barton's Hill Coal Co. v. Reid, 90. 
 
 Barwick v, English ^oint-Stock Bank, 
 88, 112, 113, 387. 
 
 Bascom v. Bempsey, 422. 
 
 Basore v. Ecnkel, 225. 
 
 Bass V. Chicago & X. W. Ry. Co., 87. 
 
 Basset v. Green, 414. 
 
 Bassett v. Salisbury, 213. 
 
 Bassett v. Salisbury Mfg. Co., 214. 
 
 Basil V. Elmore, 291. 
 
 Baseman v. Rose, 683. 
 
 Batchelor v. Portesqne, 641. 
 
 Baten's Case, 494. 
 
 Bates V. Diamond Crystal Salt Co., 683. 
 
 Batchrick v. The Detroit Post and Trib- 
 une Co., 318. 
 
 Battishill V, Humphreys, 583. 
 
 Bauer v. Clay, 394. 
 
 Baugh V. Stale, 495. 
 
 Baughman v. Gould, 353. 
 
 Baum V. Mullen, 64. 
 
 Baumann v. &rubbs, 243. 
 
 Baxter v. Busb, 61. 
 
 Baxter v. Chicago, etc., E. Co., 101. 
 
 Baxter v. Doe, 24 
 
 Baxter v. Roberts, 192. 
 
 Baxter v. Warner, 91. 
 
 Bayley v. Manchester, Sheffield and Lin- 
 colnshire B. Co., 105, 108. 
 
 Baylis V. Schwalbaoh Cycle Co., 1 10. 
 
 Baylor v. Baltimore, etc. E. <^o., 611. 
 
 Bay Shore E. Co. v. Hams, 586. 
 
 Bays V. Hunt, 297, 321. 
 
 Beach v. Fulton Baak, 67. 
 
 Beach v. Hancock, 2S0, 
 
 Beach v. People, SOS. 
 
 Beach v. Ranny, 293. 
 
 Beach V. Trudgain, 199. 
 
 Beal V. Rubeson, 396. 
 
 Beal V. Posey, 651. 
 
 Reals V. Thompson, 336. 
 
 Bean v. Hubbard, 142, 172. 
 
 Beardslee». Richardson, 27. 
 
 Beardsley v. Bridgmen, 315, 327. 
 
 Beardsley v. Duntler, 358. 
 
 Beasley v. Meigs, 324. 
 
 Beasley v. Roney, 65. 
 
 Beatty v, Gilmore, 4S5. 
 
 Beatty v. Perkins, 141. 
 
 Beatty i". Thilmau, 93. 
 
 Beauchamp v. Saginaw Mining Co., 37, 
 
 615. 
 Btfaulieu v. Portland Co., 116, 544. 
 Beaumont v. Greathead, 215. 
 Beblnger v. Sweet, 535. 
 Becher v. G. E. E. Co., 663. 
 Beck V. Stitzel, 300. 
 Becker v. Janinski, 27, 213. 
 Becker v. Smith, 4^. 
 Beckett v. Midland R. Co., 490. 
 Beckley v. Newcomb, 61. 
 Beckley v. Skrob,5P5. 
 Beckwith v. Oatman, 26. 
 Beddall v. Maitland, 466, 467. 
 Beddow v. Beddow, 226. 
 Bedell v. Long Island E. B. Co., 561. 
 Bedford etc. E. Co. v. Balnbolt, 637. 
 Beeler v. Turnpike Co., 228. 
 Beeler v. Webb, 403. 
 Beers v. Arkansas, 136. 
 Beers v. Housatonic, 574. 
 ' Begein v. Anderson, 503. 
 Behrens v. Ins. Co., 325. 
 Behrens v. McKinzie, 59. 
 Beir v. Cooke, 506. 
 Beisiegel v. N. Y. etc. E. Co., 557. 
 Belden v. Henriques, 369. 
 Belding v. Black Hills & Ft. P. E. Co., 81. 
 Belfast Steamboat v. Boon & Co., 360. 
 Belknap v. Ball, 321. 
 Bell V. Cammings, 443, 533. 
 Bell V. Ellis, 369. 
 Bell V. Pernold, 294. 
 Bell V. Hansley, 186, 2S3. 
 Bell V. Josselyn, 648. 
 Bell V. Leslie, 614. 
 Bell V. Loomis, 230, 
 Bell V. McClintock, 606. 
 Bell V. McGinnis, 325. 
 Bell V. Mi(Jland E. Co., 222. 
 Bell o. Norfolk S. E. Co., 157. 
 Bell V. Eeed, 630. 
 Belle V. Cunningham, 683. 
 Bellman v. Indianapolis, etc., E. Co., 37. 
 Bellons v. McGinnis, 64, 429. 
 Belton V. Baxter, 543. 
 Benedict «. Williams, 414, 6S0 
 Beneway v. Thorp, 333. 
 Bangston v. Chicago, etc. E. Co., 192. 
 Benjamin v. Storr, 491. 
 Benley v. Wiggins, 138. 
 Bennr. Null, 116. 
 Bennett v. Beam, 685. 
 Bennett v. Bennett, 272. 
 Bennett v. Drain Commissioner, 228. 
 Bennett v. Fulmer, 145.) 
 Bennett v. Ives, 648. 
 Bennett v. Joes, 84. 
 Bennett v. Mathews, 324. 
 Bennett v. New York etc. R. Co., 564. 
 Bennett v. Railroad Co., 567. 
 Bennett v. Smith, 272. 
 Bennett v. Truebody, 91. 
 Benson v. Cent. Pac. Ey. Co., 45. 
 
TABLE OF CASES CITED. 
 
 693 
 
 The References are to Pages. 
 
 Bensoii v. Remington, 278. 
 
 Benson v. Saurez, 627. 
 
 Benson v. Titcomb, 546. 
 
 Benton v. Beattie, 435. 
 
 Benton v. Pratt, 9, 390, 535, B73. 
 
 Benzing v. Steam way, 117. 
 
 Beideanx v. Davis, 296. 
 
 Berea Stone Co. v. Kraft, 124. 
 
 Berg V. City of MUwaulcee, 540. 
 
 Bergbofi v. McDonald, 64S. 
 
 Bergin v. Havward, 262. 
 
 Bergman v. Jones, 287, 295, 305. 
 
 Bergquist v. City of Minneapolis, 120.- 
 
 Burston v. Staples, 120. 
 
 Bernaner v. Hartman Steel Co., 91. 
 
 Berringer v. G. E. R. Co., 661. 
 
 Berry v. DaCosta, 232, 685. 
 
 Berry «. Vreeland, 211. « 
 
 Berson v . Ewing, 244. 
 
 Besemaa v. Pennsylvania R. Co., 157, 
 485. 
 
 Bess «. Chesapeake & O. Ry. Co., 110. 
 
 Besseyc. Olliott, T.Eaym., 170. 
 
 Best V. Flint, 370. 
 
 Bettilebem v. Perseverance Fire Co., 
 658. 
 
 Bettsr.Gibbins, 232. 
 
 Bevard v. Hoffman, 138, 148. 
 
 Bicknell v. Waterman, 683. 
 
 Biddle v. Bond, 442, 443. 
 
 Bidwell V. Osgood, 392. 
 
 Bler». Cooke, '527. 
 
 Bier o. Jeffersonville M. & I. E.Co., 120. 
 
 Bigasutte v. Fanlet, 274. 
 
 Bigelow V. Jones, 448. 
 
 Bigelow V. Walker, 26. 
 
 Billings V. Laflerty, 145. 
 
 Billings V. Rossell, 143. 
 
 Billingsly v. While, 424. 
 
 Billings V. Wing, 294. 
 
 Bingford v. Johnson, 37, 615. 
 
 Binford v. Young, 312. 
 
 Bingham v. Salene, 459. 
 
 Birch V. Benton, 2S)1. 
 
 Bird V. Hollbrook, 191, 206. 
 
 Bird V. Jones, 361. 
 
 Bird V. Kleiner, 378. 
 
 BirmiDgbam v. Lewis, 70. 
 
 Birmingham, City of, v. McCreary, 69. 
 
 Birmingham Water Works Co. v. Hub- 
 hard, 110. 
 
 Blssoe V. G. E. R. Co., 158. 
 
 Bishop V. Balkis Consolidated Co., 382. 
 
 Bishop V. Banks, 495, 606. 
 
 Bishop V. Eannev, 230. 
 
 Bishop V. Small, 358, 369. 
 
 Bishop V. Weber, 27. 370, 615. 
 
 Bissel V. Cornell, 295. 
 
 Bissel V. Larned,528. 
 
 Bissell V. Press Pub. Co., 343. 
 
 Bissell V. Southworth, 610. 
 
 Bitting V. Ten Eyek, 393. 
 
 Bitts ». Meyer, 397. 
 
 Bixby V. Brundage, 392. 
 
 Bixby V. Dnnlap, 275. 
 
 Bizer v. The Ottumwa Hydraulic Power 
 Co., 519. 
 
 Bizzell V. Brooker, 153. 
 
 Black V. Black, 375. 
 
 Black V. Chicago, B. & Q. E. Co., 605. 
 
 Blacker v. Schoff, 327. 
 
 BlacknaU v. Rowland, 378. 
 
 Blad V. Bamfleld, 288, 240. 
 
 Blades v. Higgs, 455, 470. 
 
 Blaon Avon Coal Co. w. MoCuUoch, 412, 
 
 537. 
 Blagen v. Thompson, 684. 
 Blagge V. Ilsley, 278. 
 Blaine w. C. & O. R., 674, 611. 
 Blair V. Bromley, 114. 
 Blair V. Chicago & A. Ry. Co., 271. 
 Blaisdell V. Railrqad, 458, 464. 
 Blake V. Barnard, 251. 
 Blake v. Ferris, 92, o50. 
 Blake V. Maine Cent. R. Co., 125. 
 Blake v. Midland R. Co., 77, 79. 
 Blakeman v. Blakeman, 313. 
 Blakemore v. Bristol & Exeter R. Col, 
 
 641. 
 Blamires v. Lane, and Yorkshire R. Co., 
 
 230. 
 Blanc V. Kinmpke, 489. 
 Blancbard v. Ilsley, 279. 
 Blassnigame v. Glaves, 234. 
 Blazer v. Insurance Co., 325. 
 Blazinski v. Perkins, 120. 
 Bleazati v. Mason City, 70. 
 Blicken staff v. Perrln,311. 
 Blickenstafl v. Prim, 324. 
 Bliss V. Greeley, 178. 
 Bliss V. Johnson, 201, 204. 
 Bliss V. Scbaub, 648. 
 Blissett V. Daniel, 147. 
 Blodgett V. Stone, 9. 
 Blood V. Sayre, 138. 
 Bloodgood V, Ayres, 178. 
 Bloodwortb v. Gray, 300. 
 Bloom V. Bloom, 312. 
 Bloomhuff V. State, 504. 
 Bloomington v. Murvin, 70. 
 Bloss V. Tobey, 299. 
 Blossom V. Barrett, 369. 
 Bloyd V. St. Louis & S. F. Ry. Co., 123. 
 Blumhardt v. Rohr, 294. 
 Blunt ». Aiken, 630. 
 Blunt V. Hay, 505. 
 Blunt ti. Little, 895. 
 Blyth V Birmingham Waterworks Co., 
 
 45, 50, 51, 538, 563, 605. 
 Blythe v. Denver & R. G. Ey. Co., 605. 
 Boatwrlght ti. Northeastern R. Co., 123. 
 Boaz V. Tate, 267. 
 Bobe V. Frowner, 63. 
 Bobson V. Klng-bary, 393. 
 Bodwell V. Osgood, 306, 839. 
 Bodweil V. Swan, 316. 
 Boeschcrv. Lutz, 202. 
 Boeger v. Langberg, 267. 
 Boehmer v. Detroit Free Press Co., 343. 
 Boetcher v. Staples, 235. 
 Bogers v. Wilson. 267. 
 Bohan v. P. J. G.L. Co., 485, 486, 491, 495. 
 Boland v. Missouri R. Co., 544. 
 Bolch V. Smith, 641. 
 Bolingbroke v. Swindon Local Board, 109. 
 Bolman v. Overall, 271. 
 Bolton V. Miller,278. 
 BondM. Hilton, 214. 
 Bond V. Ramsey, 351. 
 Bondurant «>. Lane, 214. 
 lioncsleel v. Bonesteel, 260. 
 Boniface v. Eelyea, 94. 
 Bonnardi). Perryman,226, 347. 
 Bonnell v. Dunn, 230. 
 Bonnell v. Smith, 491, 499. 
 Honner v. Bryant, 101. 
 Bonner o. State, 250. 
 Bonner v. Whltoomb, 125. 
 
694 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Boogber v. Life Assn., 66, 68. 
 
 Booker v. Paryear, 402. 
 
 Boon V. Atwell, 358. 
 
 Boot V. Pratt, 21. 
 
 Booth V. Spnyten Dny. K. M. Co., 684. 
 
 Booth V. Storrs, 369. 
 
 Borden v. Fitch, 138. 
 
 Borgman v. Omaha & St. L. R. Co., 123. 
 
 Born V. Loflin & Band Powder Co., 522. 
 
 Borrows v. Ellison, 244. 
 
 Boston & Albany K. B. Co. v. Shanly, 620. 
 
 Boston, etc. , K. Co. v. Carney, 503. 
 
 Boston W. P. Co. V. Boston etc. Co., 224. 
 
 Boston & W. K. Co. v. Dana, 234. 
 
 Boswell V. Laird, 92. 
 
 BostwlclJ V. Kickelson, 291. 
 
 Boulard v. Calhoun, 100. 
 
 Boullamet v. Phillips, 30.?. 
 
 Bourland v. Edison, 323. 
 
 Bonrne v. Fasbrooke, 451. 
 
 Bourreslan v. Detroit, 312. 
 
 Boutiller v. Milwaukee, 81. 
 
 Bowden v. Grey, 271. 
 
 Bowditch V. Boston, 199. 
 
 Bowenv. Flanagan, 591. 
 
 Bowen v. Hall, 410, 669, 679. 
 
 Bowen v. School Distr., 658. 
 
 Bower v. Peate, 639. 
 
 Bowers v. Horan, 611. 
 
 Bowers v. Johnson, 384. 
 
 Bowes V. City of Boston, 30. 
 
 Bowker ». Evans, 72. 
 
 Bowman v. Coritbens, 375. 
 
 Bowman v. Tallman, 27. 
 
 Bowman v. Teal, 606. 
 
 Bdwring v. Theband, 630. 
 
 Bowyer v. Cook, 481. 
 
 Box V. Jubb, 607. 
 
 Boyce v. Aabuchon, 313. 
 
 Boyce v. Kailroad Co., 239. 
 
 Boyce «. Watson, 375. 
 
 Boyd V. Byrd, 277. 
 
 Boyd V. Cross, 394. 
 
 Boyer v. Bolender, 231. 
 
 Boyerti. Cook, 469. 
 
 Boyer v. State, 487. 
 
 Boyle V. Casfe, 248. 
 
 Boyle V. State, 311. 
 
 Boyjiton v. Eemington, 310. 
 
 Boynton v. Shaw Stocking Co., 304. 
 
 Brabbitts v. Chicago, etc. R. Co., 194. 
 
 Brace v. Brink, 297. 
 
 Bracken v. Cooper, 447. 
 
 Bracken v. Rusbville, etc., K. Co., 459. 
 
 Brackett v. Labke, 91. 
 
 Bracy ». Kibtae. 278. 
 
 Bradbury©. Gilford, 611. 
 
 Bradbury v. Haines, 358. 
 
 Bradford v. Floyd, 370. 
 
 Bradish v. Bliss, 326. 
 
 Bradlaugh v. Gassett, 145. 
 
 Bradlaugh v. Newdegate, 411. 
 
 Bradley v. Andrews, 615. 
 
 Bradley «. Bosley, 358. 
 
 Bradley v. Cramer, 295, 334. 
 
 Bradley v. Fisher, 138. 
 
 Bradley v. Heath, 339. 
 
 Bradley v. Kennedy, 326. 
 
 Bradshaw v. Lancashire and Yorkshire 
 
 K. Co.,77. 
 Bradstreet v. Gill, 336. 
 Bradt v. Towsley, 298. 
 Brady v. Weeks, 630. 
 Bragg V. Morrill, 632. 
 
 Brahm v. Schwartz, S52. 
 
 Brainard v. Dunning, 87. 
 
 Brandreth v. Lance, 347. 
 
 Branham v. Central Bailroad, 522. 
 
 Branner v. Stormont, 27. 
 
 Branson v. Labrot, 568. 
 
 Branstetter v. Dorrough, 315. 
 
 Brantley v. Wolf, 60. 
 
 Brauns v. Gle8ige,462. 
 
 Brazil v. Moran, 64. 
 
 Brazil V. Peterson, 99. 
 
 Breckenridge Co. v. Hicks, 194. 
 
 Breckwoldt v. Morris, 141. 
 
 Breitenbach v. Trowbridge, 256, 639. 
 
 Bielet V. Mullen, 393. 
 
 Brennan v. Gordon, 125. 
 
 Brennen v. Tracy, 394. 
 
 Brent v. Davis, 114. 
 
 Brewer v. Boston etc. E. Co., 157. 
 
 Brewer v. Crosby, 614. 
 
 Brewer v. Jacobs, 393. 
 
 Brewer v. Weakley, 301, 321. 
 
 Brewster v. Sandwein, 682. 
 
 Brewster v. Van Liew, 217. 
 
 Brezee v. Powers, 634. 
 
 Brick V. Rochester, etc., E. Co., 121. 124. 
 
 Bricker v. Lightner, 245. 
 
 Bricker v. Potts, 296. 
 
 Brickett v. Knickerbocker Ice Co., 564. 
 
 Bridge v. Grand Junction R. Co., 577, 
 
 578, 588. 
 Bridger v. Railroad Co., 543. 
 Bridges v. New London R. Co., 552, 659. 
 Briffitt V. State, 551. 
 Briggs V. Evans, 278. 
 Brigg.^ v. Garrelt, 320, 331. 
 Briggs V. Haycock, 439. 
 Briggs V. New York, etc. R. Co., 434. 
 Briggs V. Taylor, 27. 
 Briggs V. Union Street Ey., 590. 
 Brightman v, Bristol, 516, 
 Brill 27. Flager, 495,504. 
 Brill V. Ohio Humane Soc, 475. 
 Brinsmead v. Harrison, 231, 437. 
 Bristol V. Braidwood, 357, 363. 
 Bristol etc. Bank v. Midland R. Co., 447. 
 British Mutual Banking Co. v. Charn- 
 
 wood Forest E. Co., 112, 113. 
 Broadwell v. Kansas, 69. 
 Broadwell v. Wilcox, 611. 
 Brob6t«.Euff, 396. 
 Brock V, Stimpson, 260, 478. 
 Broder v. Sailfard, 507. 
 Brodie v. Kutledge. 138. 
 Brodley v. Davis, 142. 
 Brokaw v. N. J. E. etc., Co., 67, 112. 
 Brokaw v. Eailroad Co., 67. 
 Bromley v. Birmingham M. R. Co., 569. 
 Bronson v. Bruce, 318, 
 Brooke v. Tradesman's Nat. Bank, 30. 
 Brooke v. O'Boyle, 466. 
 Brooker v. Coffin , 295, 297, 298. 
 Brookhaven Lumber Co. v. 111. Cent. E. 
 
 Co., 589. 
 Brooks V. Hoyt, 223. 
 Brooks V. Mangan, 261. 
 Brooks V. NorcrosB, 225. 
 Brooks V. Olmstead, 413. 
 Brooks V. Schuverin, 271. 
 Brophy v. Bartlett, 94. 
 Broschart v. Tuttle, 645. 
 Brosman v. Sweetzer, 691. 
 Brothers v. Morris, 204. 
 Broughton v. Jackson, 268. 
 
TABLE OF CASES CITED. 
 
 695 
 
 The References are to Pages. 
 
 Brongbton v. MoGrew, 305, 33tl, 345. 
 
 Broughjon v. Smart, 376. 
 
 Brower v. Edson, 644. 
 
 Brown v. Atlantic, etc. B. Co. 562. 
 
 Urown V. Boom Co., 164. 
 
 Hrowuu. Boorman,619. 
 
 Brown v. Cape Girardeau, 399. 
 
 Brown v. Carolina Central Ey. Co., 495. 
 
 Brown v. Carpenter, 516. 
 
 Brown v, Cayuga etc. R. Co., 157. 
 
 Brown v. Chadsey, 265. 
 
 Brown v. Chicago, etc., E. Co., 37, 537. 
 
 Brown ». Collins, 164. 
 
 Brown v. DeGroif, 515. 
 
 Brown v. Eastern and Midlands E. Co., 
 
 57. 
 Brown v. Emerson, 213. 
 Brown v, Howard, 144, 151. 
 Brown v. Howard Ins. Co., W. 
 Brown V. Howe, 59. 
 Brown v. Illins, 505. 
 Brown v. Kendall, 162, 169, 173, 604. 
 Brown v. Kihgsley, 276. 
 Brown v. Lamberton, 312. 
 Brown v. Leach, 351. 
 Brown v. Lent, S4. 
 Brown v. Lynn, 591. 
 Brown v. Massachusetts Title Ins. Co., 
 
 323. 
 Brown II. Mlms, 300. ' 
 
 Brown v, Montgomery, 369. 
 Brown v. Natley, 483. 
 Brown v. Perkins, 422. 515. 
 Brown V. Pnrlvance, 100. 
 Brown V. Eandall, 395. 
 Brown v. Eice's Admr., 360. 
 Brown v. Sennett, 123. 
 Brown v. Smith, 91. 
 Brown v. Stackhouse, 412. ■ 
 Brown v. Swineford, 235. 
 Brown v. Vannaman , 300. 
 Brown v. Willoughby, 394. 
 Browne v. Dawson, 469. 
 Brownell v. Carnley, 142. 
 Browner «. Sterdevant, 81. 
 Browning v. Cover, 448. 
 Browning v. Magill, 414. 
 Brownlie v. Campbell, 352. 
 Brownstein v. Wiles, 393. 
 Bruce v. Sonle, 299. 
 Brucli V. Carter, 425. 
 Brnck v. Carter, 412. 
 Brueshaberii. Hertllng, 305. 
 Brunsden v. Humphrey, 224. 
 Brunslng v. White, 621. 
 Brushaber v. Stegeman, 259. 
 Brushberg v. Milw. etc. Ey. Co., 504. 
 Brnsh Electric Lighting Co. «. Kelly, 568. 
 Bryan v. Bates, 262. 
 Bryan v. Gnrr, 347. 
 Bryant v. Clifford, 432. 
 Bryant v. Herbert, 16. 
 Bryant v. Lefever, 509. 
 B. S. O. & B. E. V. Eainbolt, 629. 
 Bubbt». Yelverton, 431. 
 Buchanan v. Howland, 225. 
 Buchanan v. West Jersey E. Co., 693. 
 Buck V. Hersey,300, 301. 
 Buck V. Penn. E Co.. 637. 
 Buckley v. Artcher, 357. 
 Buckley v. Gross, 451. 
 Buckley v, Knapp, 309. 
 Buokstaff V. Viall, 287, 311. 
 BuddiJ. Hiler, 658. 
 
 Buddenberg v. Chouteau Transp. Co., 
 
 575. 
 Bnddlngton v. Shearer, 529. 
 Buddington v. Smith, 151. 
 Buddies. Wilson, 650. 
 Bueschingii. St. Louis Gaslight Co., 500. 
 Buffalo Lhbriqating Oil Co. v. Standard 
 
 Od Co., 66, 67. 
 Bukup V. Valentine, 472. 
 Bullard v. Saratoga Victory Mfg. Co., 15:!. 
 Bailers v. Dickinson, 511. 
 Bullis V. Chicago, etc. By. Co., 561. 
 Bullock V. Baboock, 59, 503. 
 Bullock V. Koon, 311. 
 Buhner v. Bulmer, 78. 
 Bulpit V. Mathews, 473. 
 Bump V. Betts, 395. 
 Bunnell v. Greathead, 274. 
 Burckhalter v. Coward, 326. 
 Burch V. Carter, 9, 40. 
 Burchy v. Town ol Late, 157. 
 Burdett v. Abbott, 472. 
 Burditt V. Swenson, 505. 
 Burford v. Wible, 291, 295. 
 Burger v. Carpenter, 673. 
 Burgess v. Burgess, 185. 
 Burgess V. Graffani,. 425. 
 Burgett ». Burgett, 398. 
 Burke v. Mascarich, 301, 321. 
 Burke v. Milwaukee, etc., Ey. Co., 353. 
 Burke v. Norwich R. Co., 95. 
 Burke v. Shaw, 108. 
 Burke v. Smith, 33, 509. 
 Burke V. Eyan, 329. 
 Burkett v. Griffith, 388. 
 Burkett v. Lanata, 217, 395. 
 Burling v. Bead, 513. 
 Burlingame v. Burlingame, 294, 329. 
 Bnrlinghand v. Wylee, 26.1. 
 Burlington K. Co. v. Weotover, 44, 563. 
 Burmis v. North, 395. 
 Burmard v. Haggis, 62. 
 Burnett V. Stantoi« 363. 
 Burnham v. Hotchkiss, 494. 
 Burnham v. Stevens, 138. 
 Burnley v: Cook, 483. 
 Burns v. Chicago etc. E. Co., 546. 
 Burns v. Dockray, 369. 
 Burns v. Erben, 263. 
 Burns v. Grand Eapids, etc., Co., 82. 
 Burns v. Hill, 60. 
 Burns v. Poulsom, 101. 
 Burns v. State, 263. 
 Burnside «. Matthews, 59. 
 Burrlll V. Stevens, 369. 
 Burroughs «. HousatonicE. Co., 153,662. 
 Burroughs, v. Saterlee, 178. 
 Burrous v. Alter, 349. 
 Burrowes v. Lock, 227. 871. 
 Burrowes v. Lock, 227, 371. 
 Barrows v. Erie R. Co., 595. 
 Burt V. Advertiser Newsp. Co., 316, 318. 
 Burt V. Bowles, S56. 
 Burt V. MoBrain, 306. 
 Burtch V. Niokersou,302. 
 Burton V. Calloway, 142, 479. 
 Burton v. Davis, 164. 
 Burton v. Fulton, 403. 
 Burton v. Galveston & H. E. Co., 91. 
 Burton v. March, 347. 
 Burton v. McClellan, 199, 475, 503. 
 Burton v. Scherff, 459. 
 Burton V. Wilkinson, 471. 
 Buzzell V. Manuiacturing Co., 117. 
 
696 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Bnsch V. Westee, 448. 
 
 Basch V. Wilcox, 383. 
 
 Bash V. Brosser, 331. 
 
 Bush V. Holmes, 683. 
 
 Bush V. Stelnman, 94. 
 
 Bastecd v. Parsons, 188. 
 
 Busteirad i>. Kamngton, 367. 
 
 Batcher v. Providence G. Co., 620. 
 
 Butcher v. Vaoa V. etc., E. Co., 44. 
 
 Butchers etc. Co. v. Crescent City etc. 
 
 Co., 399. 
 Butchers' Ice, etc., Coal Co. v. City of 
 
 Philadelphia, 69. 
 Butler V. Collins, 414. 
 Butler V. Kent, 148. 
 Butler V. McLellan, 151. 
 Butler V. M. S. Sc L. B. Co., 460. 
 Bntler v. Townsend, 120. 
 Butler Co. v. MoCann, 279. 
 Butterfleld v. Ashley, 275. , 
 Butterfleld v. Baffum, 312. 
 Butterfleld v. Forrester, 577, 578. 
 Byam v. Blckford, 447. 
 Byam v. Collins, 335. 
 Byard v. Holmes, 375. 
 Byers v. Chapln, 632. 
 Byne v. Hatcher, 87. 
 Byrket v. Moqahan, 305, 326. 
 Byrne v. Boadle, 636. 
 Byrne v. New YorkCent. etc. B. Co., 584. 
 Byrnes v. New York, etc., R. Co., 120. 
 
 c. 
 
 Cabbot V. Crlstie, 363. 
 
 Cade V. Keddltt, 292, 315. 
 
 Cady V. Case, 220, 685. 
 
 Cagger v. Lansing, 544. 
 
 Oahil V. Bastman, 493, 634. 
 
 Cahils V. Layton, 164. 
 
 Cahoonii. Bayard, 459. 
 
 Cairo etc. E. Co. v. Warsley, 157. 
 
 Calder v. Halket, 139. v 
 
 Caldwell v. Arnold, 142. 
 
 Caldwell v. Brown, 117. 
 
 Caldwell v. Fairrell, 9, 186. 
 
 Caldwell v. Fenwick, 420. 
 
 Caldwell v. Henry, 367. 
 
 Caldwell v. Neely, 448. 
 
 Caldwell V. New Jersey Steamboat Co., 
 
 543. 
 Cale V. Fisher, 618. 
 Caledonian B. Co. v. Walker's Trustees, 
 
 155. • 
 
 California Fig Syrup Co. o. Improved 
 
 Fig Syrup Co., 225. 
 Calktns v. Barger, 603. 
 Calkins v. Sumner, 329. 
 Calkins v. Wheaton, 312. 
 Callahan D. Bean, 585. 
 Callahan v. Burlington B. Co., 92. 
 Callahan ». Warne, 615. 
 Calhns v. Hayte, 394. 
 Calliope, The, 630. 
 Callls V. Selden, 632. 
 Calloway v. Burr, 394. 
 Calvert v. Rice, 429. 
 Calvert v. Stone, 471. 
 Calvin V. Holbrook, 112. 
 Calvin V. Peahody, 664. 
 Cameron v. Tribune Assn., 323, 333. 
 Camp V. Ganlcy, 142. 
 
 Camp V, Hamlin, 683. 
 
 Camp V. Martin, 301. 
 
 Camp V. Mosley, 141. 
 
 Camp V. Wood, 627. 
 
 Campan v. Campan, 447. 
 
 Campbell v. Bannister, 296. 
 
 Campbell v. Bear River Co., 605. 
 
 CampbeU J). Bridwell, 610. 
 
 Campbell v. Brown, 614. 
 
 Campbell ■». Campbell, 296, 311. 
 
 Campbell ». Carter, 272. 
 
 Campbell v. Cooper, 276. 
 
 Campbell v. Indianapolis, etc., B. Co., 
 
 462. 
 Campbell v. Moore, 606. 
 Campbell v. N. E. Mut. Lite Ins. Co., 362. 
 Campbell v. Northern Pac. R. Co., 108. 
 Campbell v. Perkins, 61. ' 
 
 Campbell v. Phelps,231. 
 Campbell v. Portland Sugar Co., 627. 
 Campbell v. Pullipan Palace Car Co., 105. 
 Campbell v. Race, 576. "~ 
 
 Campbell v. Seaman, 606, 486, 491. 
 Campbell v. Spottlswoode, 319. 
 Campbell v. Stalrt, 110. 
 Campbell v. Stakes, 62. 
 Caflipbell V. Stillwater, 29, 42. 
 Campbell etc., Co. v. Manhattan etc. Ry. 
 
 Co., 225. 
 Camp Point Mfg. Co. v. Ballou,193. 
 C. & A. B. E. Co. V. Pennell, 43. 
 Candee v. Deere, 184. , 
 C. &. J. R. ». Newellj 629. 
 Candy v. Lindsay, 415. 
 Caneforw. Crenshaw, 611. 
 Cannavan v. Concklin, 628. 
 Canning v. Williamston, 55. 
 Cannon v. Barry, 430. 
 Cannon v. Windsor, 59. 
 Cape V. Scott, 473. 
 
 Capital and Counties Bank v. Henty, 313. 
 Carder v. Forehand, 281. 
 Cardiff v. Louisville, etc , R. Co., 107. 
 Oordival v. Smith, 395. 
 Card well v. American Bridge Co., 156. 
 Carew v. Rutherford, 268, 275, 407, 672. 
 Cary v. Berkshire R. Co., 80. 
 Carey v. Ledbitter, 502. 
 Carey v. Bae, 476. 
 CargiU V. Slate. 261. 
 Carl V. Ayers, 394. 
 Carle v. Bangor, etc., R. Co., 117. 
 Carleton v. AkrQn Sewer Pipe Co., 261. 
 Carleton v. Franconia Iron Co., 627. 
 Carleton v. Hay woOd, 63, 64, 658. 
 Carleton v. Redinglon, 459. 4B4. 
 Carlett v, Leavenworth, 633. 
 Carll V. Union Depot, etc. Co., 620. 
 Carlisle v. Cooper, 522. 
 Carlsbad, City of. v. Xibbetts, 226. 
 Garme v. Rauh, 680. 
 Carmichael v. Dolen, 252. 
 Carmichael v. Shlel, 295. 
 Carnelius v. Hambey, 274. 
 Carney v. Hadley, 225. 
 .Carona v. Galveston, etc., E. Co., 120. 
 Carpenter v. Bailey, 315. > 
 Carpenter v. Carpenter, 60. 
 Carpenter v. Gardiner, 447. 
 Carpenter v. Menderhall, 447. 
 Carpenter v. Mexican Nat. B. Co., 123. 
 Carpue v. London & Brighton R. Co., 549. 
 Carr v. Easton, 271, 
 Carr v. North Elver Const. Co., 120. 
 
TABLE OF CASES CITED. 
 
 697 
 
 The References are to Pages. 
 
 Carr v. State, 248. 
 
 Carrloo ». West Virginia 0. & P. By. Co., 
 
 643. 
 Garrtgan ». Union Sugar Refinery, 634. 
 Oarrington v. Taylor, 408. 
 Carroll v. Mix, 435. 
 Carroll ».Mo. Pao. K. Co., 81. 
 Carroll v. White, 295, SOI. 
 Carroll v. Wisconsin Cent. R. Co., 500. 
 Carslakev. Mapleaoram,300. 
 Carson v. Eflgeworth, 393. 
 Carson v. Prater, 449. 
 Carstalra v. Taylor, 607. 
 Cartarso v. The Bnrgundla, 583. 
 Carter ». Andrews, 295, 296. 
 Carter v. Columbia & G. E. Co., 533. 
 Carter v. Dow, 138. 
 Carter v. Good, 238. 
 Carter v. Hobbs, 642. ' 
 
 Carter v. Howe Macbine Co., 68. 
 Carter v. Jackson, 64. 
 Carter v. Kingman, 440. 
 Carter v. Louisville, etc., Ey. Co., 104, 
 
 537, 567. 
 Carter v. Towne, 503. 
 Cartwright, Ee, 428. 
 Cary v. Allen, 288. 
 Case V. Buckley, 294, 
 Case V. North Cent. B. Co., 562. 
 Case V. Sbepherd, 138. 
 Case V. Vonghton, 363. 
 Casebeer». Drahable, 395. 
 Casey v. Cincinnati Type Union, 410. 
 Casey v. Hanrick, 399. 
 Casey v. Sevatson, 394. 
 Cass v'. Anderson, 295. 
 Casselman v. Winship, 297. 
 Cassida ». Navigation Co., 585. 
 Cassidy v. Angel, 546. 
 Cassin V. Delaney, 64. 
 Castle V. Ballard, 384. 
 Castle V. Danyee, 167, 618. 
 Castle V. Houston, 323. 
 Castleberg v. Kelley, 311. 
 Casto V. lie Uriarte, 393. 
 Catawissa etc. E. Co. v. Armstrong, 544. 
 Cate o. Cate, 9, 40, 412. 
 Cates V. Kellog, 315, 316. 
 Catlln V. Valentine, 506. 
 Catllu V. Warren, 369. 
 Catron v. Nichols, 603. 
 Cattle V. Harold, 225. 
 Catzhausen v. Simon, 378. 
 Caughey v. Smith, 276. 
 Cauley v. Pitts., etc. Ry. Co., 583. 
 Canlfleld v. Bullock, 148. 
 Cavanaugh v. Austin, 324. 
 Cavanangh ». I^nsmore, 95, 100. 
 Caverly v. MoOwen, 27. 
 Cawley v. State, 248. 
 Cawthorn v. Dcas, 108. 
 Cayzer v. Taylor, 539. 
 C. B. U. P. B. Co. V. Hotham, f)52. 
 Centers. Spring, 393. 
 Central Bank v. Copeland, 375. 
 Central, etc. E. Co. v. Davis, 610. 
 Central Pass., etc., Co. v. Knhn, 637. 
 Central R. Co. v. Crosby, 568. 
 Central B. Co. v. Moore, 538. 
 Central B. Co. v. Peacock, 110. 
 Central B. Co. v. Sears, 568. 
 Central B. Co. of Venezuela v. Klsch, 379. 
 Central Trust Co. v. Wabash, St. L. & 
 P. E. Co., 121. 
 
 CertweU v. Hoyt, 278. 
 
 Chaddook v. Brigga, 299, 301. 
 
 Chaffee v. Pease, 9. 
 
 Chaffie o. Old Colony B. Co., 544. 
 
 Chaffln V. Lynch, 337. 
 
 Chamber v. State, 2S3. 
 
 Chamberlain v. Boyd, 293. 
 
 Chamberlain v. Hazlewood, 275. 
 
 Chamberlain v. Masterson, 642. 
 
 Chamberlain v. Ward, 96. 
 
 Chamberlain v. Williamson, 73, 686. 
 
 Chambers v. Bedell, 469. 
 
 Champaign, City of, v. Jones, 552. 
 
 Champion v. Vincent, 213. 
 
 Champlain v. Rowley, 535. 
 
 Champney v. Smith, 454. 
 
 Chandler «. Eloker, 447. 
 
 Chandler v. Walker, 423. 
 
 Chanviere v. Fliege, 64. 
 
 Chapman v. Atlantic, etc. R. Co . , 504. 
 
 Chapman v. Auckland Union, 520. 
 
 Chapman v. Bostwick, 114. 
 
 Chapman V. Calder, 339. 
 
 Chapman II. Dodd, 396. 
 
 Chapman v.~Dyett, 265. 
 
 Chapman v. Morgan, 238. 
 
 Chapman ». Miirch, 351. 
 
 Chapman v. New Haven Railroad Co., 
 
 548. 
 Chapman v. New York, etc.,R. Co., 101. 
 Chapman v. Eothwell, 627. 
 Chapman v. State, 248. 
 Chapman v. W. U. Tel. CO., 55, .'56. 
 Charlebois v. Gogebie & M. R. Co., 92. 
 Charles v. Elliott, 420. 
 Charles v. Taylor, 121. 
 Charless v. Eankin, 216. 
 Charlock ^. Freed, 92. 
 Chase !>. Bronghton, 358. 
 Chase v. Chase, 611. 
 Chase v. Fish, 262. 
 Chase v. Hazleton, 429. 
 Chase v. Maine etc. B. Co., 569. 
 Ch'.semore v. Bichards, 178, 179, 182. 
 Chase v. Silverton, 178. 
 Chase V. W. U. Tel. Co., 56. 
 Chasemore V. Bichards, 602. 
 Chatalgne v. Bergeron, 503, 618,637. 
 Chatfleld v. Wilson, 163, 178, 182. 
 Chatham Furnace Co. v. Moffatt, 364. 
 Chautauqua Lake Ice Co. v. McLuckey, 
 
 Cheatham v. Shearon, 496, 503. 
 
 Cheeney v. Nebraska etc., Stone Co., 40. 
 
 Cheever v. Ladd, 70. 
 
 Cheever v. Sweet, 394. 
 
 Chellis V. Chapman, 222, 685. 
 
 Chenango v. Lewis Bridge Co., 529. 
 
 Cherokee Nations. State of Georgia, 133. 
 
 Cherry s;. Stein, 509. 
 
 Chesapeake, etc., B. Co. v. Higgins, 211. 
 
 Ohesebro v. Powers, 888. 
 
 Chester v. Dickinson, 114, 383. 
 
 Chevalier v. Straham, GOB. 
 
 Chicago V. Anderson Pressed Brick Co., 
 
 123. 
 Chicago V. Dermody, 69. 
 Chicago V. Elzemun, 218. 
 Chicago V. Hessing, 82. 
 Chicago V. Hnenerbein, 520. 
 Chicago V. Joney, 69. 
 Chicago V. Martin, 235. 
 Chicago V. Mayor, 81. 
 Chicago V- Bobbins, 93. 
 
698 
 
 TABLE OP CASES CITED. 
 
 The Keferences are to Pages. 
 
 Chicago V. Starr, 42. 
 
 Chicago & A. E. Co. v. Fisher, 684. 
 
 Chicago & A. 14. Co. V. Murphy, 116. 
 
 Chicago & A. B. Co. v. Snffern, 651. 
 
 Chicago & E. I. E. v. Geary, 122. 
 
 Chicago & E. E. Co. v. Flexman, 105. 
 
 Chicago & G. W. E. Co. v. Travis, 194. 
 
 Chicago, K. & W. E. Co. v. Willoeby,220. 
 
 Chicago, M. & S. E. Co. w. Eosb, 129. 
 ^ Chicago, M. & St. P. E. Co. v. West, 101, 
 104. 
 
 Chicago & N. ^Y. Ey. Co. v. Tuite, 239. 
 
 Chicago, B. & Q. R. Co. v. Casey, 100. 
 
 Chicago, B. & Q. E. Co. v. Harwood, 545. 
 
 Chicago, B. & Q. E. Co. v. Laudaner, 544. 
 
 Chicago, B. & S. E. Co. v. Epperson, 108. 
 
 Chicago, City of, v. Babcock, 230. 
 
 Cliicago City B. Co. v. Hennessey, 92. 
 
 Chicago City Ey. Co. v. Bobinson, 644. 
 
 Chicago, D. & 1>. Co. v. McMahon, 123. 
 
 Chicago, etc. Co. v. Schroeder, 82. 
 
 Chicago etc. K. Co. v. Doyle, 125. 
 
 Chicago, etc., E. Co. v. Flagg, 223. 
 
 Chicago etc. E. Co. v. GralSln, 584. 
 
 Chicago, etc. B. Co. v. Johnson, 537. 
 
 Chicago etc. E. Co. v. Lundstrom, 124. 
 
 Chicago etc. E. Co. v. Mahoney, 193. 
 
 Chicago, etc. E. Co. v. McCahlll, 504. 
 
 Chicago, etc., B. Co. v. McKcan, 223. 
 
 Chicago etc. E. Co. v. McLanlen, 544. 
 ' Chicago etc. E. Co. v. Moranda, 124. 
 
 Chicago etc., E. Co. v. Morrls,>82. 
 
 Chicago, etc. E. Co. v. Patchln, 610. 
 
 Chicago, etc. E. v. People, 651. 
 
 Chicago etc. R. Co. v. Quaintance, 562. 
 
 Chicago etc. E. Co. v. Boss, 123. 
 
 Chicago, etc. B. Co. v. Sawyer, 606. 
 
 Chicago, etc., E. Co. v. Swett, 82. 
 
 Chicago etc. B. Co. v. West, 126. 
 
 Chicago, etc., E. Co. v. Wilson, 218. 
 
 Chicago etc. Ey. Co. v. Becker, 164. 
 
 Chicago B. Co. v. Shea, 606. 
 
 Chicago B. Co. v. Tolk, 94. 
 
 Chicago, E. I. & P. B. Co. v. Conklin, 104. 
 
 Chicago, St. L. & P. E. Co. v. Williams, 
 43. 
 
 Chidester v. Consolidated D. Co., 605. 
 
 Chiffereil v. Watson, 219. 
 
 Child V. Hearn, 587, 615. 
 
 Childress v. Tonrie, 37. 
 
 Childrey v. Huntington, 45. 
 
 Childs V. Kansas City B. Co., 448. 
 
 Chllds U.Merrill, 369. 
 
 Chiles V. Drake, 220, 618. 
 
 Chinery v. Viall, 445, 653. 
 
 Chivluian v. Hibberd, 518. 
 
 Chipman v. Palmer, 620, 529. 
 
 CUlsholm V. Atlanta Gas Light Co., 620. 
 
 Ch'isholm v. Georgia, 136. 
 
 Chism V. Martin, 6'i3. 
 
 Chiveryt;. Strecker, 491. 
 
 Chope V, Eureka, 70, 
 
 Chrisman v. Carney, 261, 264. 
 
 Chrlstal v. Craig, 297. 
 
 Christophersou v. Bare, 255. 
 
 Chrysler v. Canaday, 357. 
 
 Chnnot v. Larson, 614. 
 
 Church V. Mansfield, 108. 
 
 Church ». Mellville, 414. 
 
 Church V. Sparrow, 114 
 
 Churchhlll v. Holt, 232. 
 
 Churchill v. Hulbcrt, 206. 
 
 Chynoweth v. Tenney, 458. 
 
 Cincinnati v. Stone, 91. 
 
 Cincinnati etc. E. Co. v. Butler, 568. 
 Cincinnati, etc. E. Co. v. Howard, 557. 
 Cincinnati, etc., B. Co. v. Mealer, 120. 
 Clhoinnati, etc., B. Co. v. Smith, 99. 
 Cincinnati, etc. B. Co. v. Watterson, 610. 
 Cincinnati Gazette Co. v. Timberlake, 
 
 342. 
 Cincinnati', H. & D. B. Co. v. McMulleu, 
 
 121. 
 Citizens Loan F. & S. Assn. v. Friendly, 
 
 26. 
 Citizens Natural Gas Co. v. Shenaugo 
 
 Natural Gas Co., 224. 
 Claflin V. Boston & A. B. Co.. 456. 
 Claflia ». Carpenter, 459. 
 Clapp V. Kemp, 91. 
 
 Clarissy v. Metropolitan Fire Dept., 69. 
 Clark V. Adams, 611. 
 Clarkv. Baird, 358. 
 Clark V. Bayer, 64. 
 Clark V. Bond, 142. 
 
 Clark V. Chambers, 48, 49, 63, 54, 582, 5S6. 
 Clark V. Cregs, 447. 
 Clark V. Downing, 251. 
 Clark V. Epworth, 70. 
 Clark V. Fitch, 91, 278, 311. 
 Clark V. Foote, 617. 
 Clark V. Fry, 87. 
 Clark V. Holmes, 138. 
 Clark V. Keliher, 202. 
 Clark V. Lake St. Clair, etc. Ice Com- 
 pany, 515. 
 Clark V. Loverlng, 648. 
 Clark 71. Molyneux, 339, 346. 
 Clark V. Munsell, 315. 
 Clark V. Peckham, 618. < 
 
 Clark V. TraU, 243. 
 Clark V. Woods, 143. 
 ClaiTke v. Vermont & C. B. Co., 92. 
 Clarkson v. McCarty, 292, 316, 316, 345. 
 Clay V. Caperton, 262. 
 Clay V. State, 309. 
 Clayards v. Dethick, 593. 
 Cleather v. Twisten, 114. 
 Olegg V. Boston etc., Co., 438. 
 Cleghoro v. N. T. Cent, etc., R. Co.^e?. 
 Cleland v. Fish, 362. " 
 Clem V. Holmes, 281. 
 Clem V. Newcastle, etc., B. Co., 360. 
 Clemence v. Auburn, 70. 
 Clemence v. Steere, 429, 430. 
 Clement v. Hawks Man. Co . , 683. 
 Clement v. Wafer, 64. 
 Clements v. Louisiana Electric Co., 564. 
 Clendening v. Ohl, 482. 
 Cleveland v. Citizens Gas Light Co., 
 
 504, 605. 
 Cleveland v. Gas Llght'Co., 495, 496. 
 Cleveland v. Eogers, 262. 
 Cleveland Co-operative Stove Co. v. 
 
 Wheeler, 624. 
 Cleveland etc. E. Co. v. Asbury, 5;i7. 
 Cleveland etc. E. Co. v. Crawford, 557. 
 Cleveland, etc. B. Co, v. Elliott, 610. 
 Cleveland Rolling Mill v. Corrigan, 5S4. 
 Clews V. Traer, 245. 
 Clifton V. Grayson, 264, 266. 
 Cline II. Crescent City E. E. Co., 574. 
 Clinton v. Nelson, 262. 
 Clinton v. York, 277. 
 Close V. Cooper, 201, 256. 
 Closson V. Staples, 398. 
 Clough V. L. and N. W. R. Co., 359 
 Clouser v. Clapper, 274. 
 
TABLE OF CASES CITED. 
 
 699 
 
 The References are to Pages. 
 
 Clowes V. Staffordshire Potteries Water- 
 works Co., 526. 
 
 Clate V. Wiggins, 642. 
 
 Coal V. Crommet, 476. 
 
 Coal Creek M. Co. v. Davis, 120. 
 
 Cobb ». Columbia & G. R. Co., 100. 
 
 Cobbw. Smith, 539. 
 
 Coburn v. Harwood, 294. 
 
 Coburn v. Kennedy, 489. 
 
 Cochran v, Ammon, 281. 
 
 Cochran v. Toher, 260, 263. 
 
 Cockle V. S. E. E. Co., 559. 
 
 Cockran v. Biitterfleld, 310. 
 
 Cockran v. Stewart, 680. 
 
 Coe V. Schultz, 199. 
 
 Coif een v. Brunton, 225. 
 
 Coffer V. Terutory, 485. 
 
 Coffey V. Myers, 395. , 
 
 Coffin V. Coffin, 328. 
 
 Cogborn v. Spence, M2. 
 
 Coggswell V. Baldwin, 614. 
 
 Coggswell V. New York, etc. E. Co., 485, 
 506. 
 
 Cohen v. Dry Dock, etc., R. Co., 110. 
 
 Cohen v. Mayor etc. ol New York, 487. 
 
 Coil V. Wallace, 222. 
 
 Coite V. Liyues, 648. 
 
 Coker v. Birge, 505. 
 
 Coker v. Crozier, 81. 
 
 Colby V. Reynolds, 288. 
 
 Cole V. City of Muscatine, 228. 
 
 Cole V. Curtis, 394, 396. 
 
 Cole V. Fisher, 503. 
 
 Cole V. McGlathry? 
 
 Cole ». O'Brien, 660. 
 
 Cole V. Turner, 247, 254. 
 
 Cole ». Perry, 316. 
 
 Colegrove v. New York etc. R. Co., 230. 
 
 Coleman v. Chadwick, 216. 
 
 Coleman v. Coleman, 447. 
 
 Coleman v. New York, etc., R. Co., 105. 
 
 Coleman v. Playstead, 395, 334. 
 
 Collen V. Wright, 74, 660. 
 
 Collins V. Davidson, 589. 
 
 Collins V. Evans, 362. 
 
 Collins V. Jackson, 358. 
 
 Collins V. Love, 393. 
 
 Collins V. White, 273. 
 
 Coleman v. Wilmington, 0. & A. E. Co., 
 123. 
 
 Cole S. M. Co. V. Virginia etc. Co., 225. 
 
 CoUard v. Marshall, 226. 
 
 Collard v. Marshall, 347. 
 
 Collins V. Evans, 232. • 
 
 Collins V. Mack, 222, 685. 
 
 Collins Co. V. Marcy, 459. 
 
 Collis V. Selden, 667. 
 
 Colly V. Cressy, 432. 
 
 Colorado, Cent. E. Co. v. Martin, 552. 
 
 Colorado etc. B. Co. :;. Holmes, 567. 
 
 Colorado M. E. Co. v. O'Brien, 123, 194. 
 
 Colorado M. R. Co. v. Naylon, 124. 
 
 Colrlck V. Swinburne, 244, 520. 
 
 Colt V. McMeehcn, 606. 
 
 Colton V. Onderdonk, 615. 
 
 Columbus etc. E. Co. v. Bridges, 537. 
 
 Columbus etc. B. Co. i: Farrell, 558. 
 
 Columbus V. Jaques, 487. 
 
 Columbus & T. E. Co. v. O'Brien, 121. 
 
 Columbus (iaa Light, etc. Co. v. ITree- 
 land, 505. 
 
 Colvin V. Peabody, 99. 
 
 Combs V. Rose, 33^. 
 
 Come V. Knowles, 259. 
 
 Comer v. Knowles, 267. 
 Comer v. Taylor, 276. 
 Comerford v, Dufruy, 610. 
 Commlnge v. Stevenson, 503, 519. 
 Commissioners v. Bank, 228. 
 Commissioners v. I>uckett, 24. 
 Commissioners of Sewers v. Glasse, 514. 
 Commonwealth v. Blalsdell, 492. 
 Commonwealth v. Blanding, 307, 31S. 
 Commonwealth v. Bonner, 305. 
 Commonwealth v. Boston & M. R. Co., 
 
 558. 
 Commonwealth v. Brown, 304, 508. 
 Commonwealth v. Caffey, 149. 
 Commonwealth v. Chaps, 321. 
 13ommonwealth v. Collberg, 187. 
 Commonwealth v. Croushore, 522. 
 Commonwealth v. Deacon, 263. 
 Commonwealth v. Elleger, 201. 
 Commonwealth v. Parrls, 485. 
 Commonwealth v. Harris, 495, 
 Commonwealth v. Hunt, 410. 
 Commonwealth v. Hurley, 250. 
 Commonwealth v. Kennard, 256. 
 Commonwealth v. Kneeland, 312. 
 Commonwealth v. Malone, 257. - 
 Commonwealth v. Maun, 256. 
 Commonwealth v, McAfee, 150. 
 Commonwealth v. McLaughlin, 251. 
 Commonwealth v. Morgan, 310. 
 Commonwealth v. Oakes, 495. 
 Commonwealth v. Parker, 185. 
 Commonwealth v. Perry, 485. 
 Commonwealth v. Pierce, 255,542. 
 Commonwealth v. Power, 651. 
 Commonwealth v. Reed, 505. 
 Commonwealth v. Ruddle, 485. 
 Commonwealth v. Snclling, 305, 334. 
 Commonwealth v. Stratton, 248. 
 Commonwealth v. Upton, 498, 506. 
 Commonwealth v. Webb, 485,-487. 
 Commonwealth v. White, 250, 256. 
 Commonwealth v. Wilkesbarre & K. S. 
 
 Ry. Co., 485. 
 Concord Bank v. Gregg, 113. 
 Cone V. Godshalk, 343. 
 Congreve v. Morgan, 87. 
 Conhocton Stone Co. v. Buffalo, etc. Ry., 
 
 639. 
 Conklin v. N. Y., O. & W. E. Co., 485 
 Conklin v. Thompson, 61, 503, 815. 
 Conkling v. PaciHc Imp. Co., 225. 
 Conley v. Partland, 122. 
 Conlon V. Eastern E. Co., 98., 
 Conlon V. Oregon, etc. K. Co., 193. 
 Connecticut Ins. Co. v. New York, etc., 
 
 E. Co., 30. . 
 Connecticut Mut. Lite Ins. Co. v. New 
 
 York &N.H. E. Co., 80. 
 Connell ». W. U. Tel. Co., 56. 
 Connelly v. AVood, 138. 
 Conner v. Pioneer Fire-proof Const. Co., 
 
 218. 
 Conradt v. Clanve, 503, 627. 
 Conroy v. Pittsburgh Times, 334. 
 Conroy v. Vulcan Iron Works, 194. 
 Consolidated Coal Co. v. Bonner, 12o. 
 Consolidated Coal Co. v. Wombacker, 
 
 123. 
 Consolidated Ice M. Co. v. Keifer, 97. 
 Continental Imp. Co. v. Stead, 356. 
 Converse v. BlumriCh, 353. 
 Coiivers v. Walker, 627. 
 Conway v. Eeed, 61. 
 
700 
 
 TABLE OF CASES CITKD. 
 
 The References are to Pages. 
 
 Conway v. Enssell, 9. 
 
 Coolc V. Anderson, 903. 
 
 Cook V. OhlcaKO etc. Ry. Co., 245. 
 
 Cook V. CUD ton, Ul. 
 
 Cook V. Cook, 291. 
 
 Cook «.,Bllis, 235. 
 
 Cook V. Hopper, 230. 
 
 Cook V. Johnston, 503. 
 
 Cook V. New York etc. K. Co., 629. 
 
 Cook V. Prldgen, 462. 
 
 Cook V. Stearns, 458, 639. 
 
 Cook V. St. Panl, etc. E. Co., 192. 
 
 Cook V. Walker, 392. 
 
 Cook V. Wood, 274. 
 
 Cook V. Forbes, 623. 
 
 Cooke V. Nathan, 361. 
 
 Cool V, Crommet, 611. 
 
 Coolidgev. Alcock, 245. 
 
 Coolidge ». Neat, 222. 
 
 Combs V. Parrlngton, 198. 
 
 Coomes v. Houghton, 87. 
 
 Coons V. Kobinson, 296. 
 
 Cooper V. Barber, 324. 
 
 Cooper v.Crabtree, 483. 
 
 Cooper V. Langway,392. ' 
 
 Cooper V. Loverine, 358. 
 
 Cooper V. AlcJunkin, 149. 
 
 Cooper V. McKenna, 248. 
 
 Coon V. Maffltt, 277. 
 
 Cooper V. MulUns, 116, 124. 
 
 Cooper V. Newman, 439. 
 
 Cooper D. Phlpps, 239. 
 
 Cooper V. Bandall.SlS. 
 
 Cooper V. State, 250. 
 
 Cooper V. Stone, 321. 
 
 Cooper V. Utterback, 393, 396. 
 
 Cooper v.~Willomatt, 438, 444. 
 
 Copen V. Foster, 148. 
 
 Copley V. G. & B. Sewing Machine Co., 
 
 68. 
 Copley V. New Haven E. Co., 557. 
 Copper V. Lee, 245. 
 
 Copping ». New Tork & H. E. R. Co., 125. 
 Copnns V. New Tork, etc. E. Co., 544. 
 Corby V. Hill, 465, 635, 640. 
 Corbett v. Anderson, 683. 
 Cornelius v. Van Slyke, 312. 
 CorneU v. Electric Ry. Co., 567. 
 Cornell «. State, 150. 
 Corner v. Mackintosh, 87. 
 Oornfootw. Fowke, 385,386. 
 Corning v. Troy. I. & N. Factory, 224. 
 Cornish v. Accident Insnxauce Co., 197. 
 Cornish v. Stubbs, 461. 
 Corwin v. Walter, 235. 
 Cory V. Silcox, 213. 
 Coryell ». Cobaugh, 222, 685. 
 Cotterell v. Jones, 401 . 
 Cotton V. Wood, 546, 547. 
 Cottrell V. Cram, 377. 
 Cottrill V. Chicago, M. & St. P. E. Co., 
 
 668. 
 Conch V. Steele, 229. 
 Coalson v. Panhandle Nat. Bank, 683. 
 Coulter V. Express Co., 695. 
 . Coulter V. Lower, 265. 
 Counties Bank v. Henty, 306. 
 Countryman v. LighthlU, 492. 
 County ol Nelson v. Northcot, 44. 
 Coupal V. Ward, 262. 
 Conp6 Co. V. Maddiok, 433. 
 Courtenay v. Earle, 649. 
 Courtney v. Baker, 97. 
 Covey V. Hannibal, etc. E. Co., 193. 
 
 Covington St. Ey. Co. v. Packer, 55. 
 
 Cowan V. Chicago etc. E. Co., 125. 
 
 Coward v. Baddely, 254. 
 
 Cowles V. Balzer, 611. 
 
 Cowles V. Elchmond, etc. E, Co., 124. 
 
 Cowles V. Townsend, 360. 
 
 Cowley V. Colwell, 534. 
 
 Cowley V. Davidson, 214. 
 
 Cbwley v. Pnlsifer,343. 
 
 Cowley V. Smith, 354. 
 
 Cox V. Bnrbidge, 49, 610, 612. 
 
 Cox V. Douglass, 224. 
 
 Cox V. Keahey, 110. 
 
 Cox V. Sullivan, 26. 
 
 Cox V. Syenite Granite Co., 123. 
 
 Cox». Whitfield, 274. 
 
 Coxhead v. Eichards, 337. 
 
 Grafter v. Metrop. R. Co., 551, 563. 
 
 Crabtree v. Robinson, 474. 
 
 Cracker v. Chicago, etc., E, Co., 213. 
 
 Crafts V. Boston, 546. 
 
 Cragle v. Hadley, 67. 
 
 Cratg». Brown, 300. 
 
 Craig V. Dee, 609. 
 
 Craig V. Sedalia, 70. 
 
 Craker v. Chicago & N. W. E. Co., 67, 87. 
 
 Crandallti. Goodrich Transp. Co., 538. 
 
 Crane v. Elder, 359. 
 
 Crane v. Onderdonk, 648. 
 
 Crane v. Waters, 321. 
 
 Cranford v. Terrell, 488, 491. 
 
 Crans v. Hunte, 112. 
 
 Cranston v. Cincinnati, etc. E. Co., 610. 
 
 Crawford v. Doggett, 64. 
 
 Crawford v. Parsons, 520. 
 
 Crawford v. Wilson, 294. 
 
 Crawson v. W. U. Tel. Co., 56. 
 
 Credle v. Swindle, 357. 
 
 Cressey v. Parks, 218. 
 
 Croaker v. Chicago & N. W. R. Co., 105. 
 
 Croansdole v. Bright, 305, 310. 
 
 Crocker v. Gulliver, 443. 
 
 Crocker v. N ew London, etc., R. Co., 108. 
 
 Crockett v. Calvert, 94. 
 
 Cracknell v. Corporation of Thetford, 
 
 156. 
 Croft V. Alison, 99. 
 Croker v. Birge, 496. 
 Croker v. Mann, 473. 
 Crane v. Angell, 296. 
 Crankhite v. Crankhite, 459. 
 Crook V. Cole, 359. 
 Cropsey v. Murphy, 504. 
 Crosby «. Fitch, 606. 
 Crosland v. PottsvlUe Borough, 616. 
 Cross V. Everts, 63. 
 Cross V. Guthery, 81. 
 Cross V. Kent, 59. 
 Cross V. Peters, 351. 
 Crossley v. Lightonler, 498. 
 Croswell v. Jackson, 368. 
 Cronsdale v. Lanigan, 482. 
 Crow V. State, 250. 
 Orowell V. Glcason, 260. 
 Crowhursi'3 Case, 605. 
 Crowhurst v. Amersham Burial Board, 
 
 604. 
 Crowley v. Stronse, 544. 
 Crown V. Leonard, 482. 
 Cruess V. Fessler, 358. 
 Cruikshank v. Gorden, 301. 
 (Jrninbie v. Wallsend Local Board, 244. 
 Crump V. Lambert, 496, 505. 
 Urusselle v. Pugh, 400. 
 
TABLE OF CASES CITED. 
 
 I 
 
 The References are to Pages. 
 
 701 
 
 Crystal v. Craig, 313. 
 
 Cubit V. O'Dett, 10. 
 
 Cuady V. Horn, 549. 
 
 Cuervo v. Jacob Henkel Co., 223. 
 
 CuflE V. Newark, etc., K. Co., 3u3. 
 
 Cuhady v. Powell, 399. 
 
 CuUen V. Norton, 123. 
 
 Calient;. Tbompson'a Trustees and Kerr, 
 
 S3. 
 Cullnm V. Branch Bank, 353. 
 Cnlp V. Culp, 243. 
 Culvert". Chicago etc. Ey. Co., 24t. 
 Culver B. Rhodes, 447. 
 Culver V. Smart, 466. 
 Cnlyer v. Decker, 589. 
 Cumberland v. Wilson, 69. 
 Cumberland B. Co. v. Mangans, 532. 
 Cummings v. Cass, 367. 
 CummluB B. National. Fnrna'ce Co., 637. 
 Cummings V. Wyman,448. 
 Cumpston v. Lambert, 231. 
 Cundy v. Lindsay, 681. 
 Cunningham v. Hall, 538, 543. 
 Cunningham v. Union Pac. it. Co., 124. 
 Currle v. Richardson, 326. 
 Currier v. Bosion Music Hall, 627. 
 Currier v. Brown, 230. 
 Curry v. Collins, 297. 
 Curry v. Pringle, 264. 
 Cnrtin v. Patton, 60. 
 Curtis V. Carson, 256. 
 Curtis » Hubbard, 471. 
 Curtis V. Murphy, 642, 651. 
 Curtl3 V. Mussey, 305, 31U. 
 Curtis ». Perkins, 323. 
 Curtis V. Wlnslow, 506. 
 Curtis & Co. Mfg. Co. v. Williams, 631. 
 Cushing V. Adams, 479, 639. 
 Cushmau v. Ryan, 151. 
 Custard v. Burdett, 213. 
 Cuthbertw. Galloway, 396. 
 Cutler 17. Smith, 463. 
 Cutts V. Spring, 451. 
 Czarniechi's Appeal, 505. 
 
 D. 
 
 Dan, The, 630. 
 
 D. & W. R. V. Spicker, 629. 
 
 Dada v. Piper, 329. 
 
 Dade Coal Co. v. Haslett, 59. 
 
 Daermg v. State, 262. 
 
 Daggett V. Wallace, 222. 
 
 Dailey v. Houston, 63, 64. 
 
 Dain v. Wyckoff, 277. 
 
 Dale V. Grant, 29. 
 
 Dallas etc. E. Co. ». Spicker, 569. 
 
 Dalston v. Janson, 649. 
 
 Dalton V. Angus, 457, 509. 
 
 Dalton V. S. E. R. Co., 79. 
 
 Dalyell v. Tryer, 95, 661. 
 
 Dame». Baldwin, 414. 
 
 Dame v. Kenny, 316. 
 
 Damon v. Moore, 278. 
 
 Damour v. Lyons, 59], 
 
 Dana ». Fielder, BSS, 
 
 Dana t;. Valentine, 505. 
 
 Dand v. Sexton, 425. 
 
 Danenhof er v. State, 149. 
 
 Danforth v. Walker, 683. 
 
 Daniel ». Chesapeake & O. R. Co., 121. 
 
 Daniel v, Ferguson, 622. 
 
 Daniel v. Metrop. E. Co., .'>92. 
 
 Daniel «. Swearengen, 276. 
 
 Daniel v. Town of Princeton (Ky.), 225. 
 
 DanllB V. Clegg, 198. 
 
 Daniels v. Keokuk Water Works, 506. 
 
 Daniels v. New York etc. R., 583. 
 
 Daniels ». Union P. E. Co., 121. 
 
 Danner®. South Carolina R. Co., fll. 
 
 Danville etc. Co. v. Stewart, 549. 
 
 Darcarstel v. People's Slaagluer house 
 
 Ref. Co.,485. 
 D'Arcy,«. Miller, 610. 
 Dargan v. Ellis, 360, 357. 
 Dargan v. Waddill, 495, 504. 
 Darie v. Briggs, 243. 
 Dark v. Johnson, 464. 
 Darley Main Colliery, Co. v. Milchell, 
 
 244. 
 Darlin v. Stewart, 357. ^ 
 Darmstuetter :;. Moynahan, 91. 
 Darnell v. Sallee, 393. 
 Douglass V. Wlnslow, 403. 
 Dannce v. Daw, 632. 
 Davenport v. Buckman, 627. 
 Davey v. L. & S. W. R. Co , 55S. 
 Davidson v. Abbott, 27«, 279, 2oL 
 Davidson v. Goodall, 278. 
 Davidson v. Isham, 504, 528. 
 Davidsou V. Nichols, 26, 621. 
 Davldeoh v. Smith, 64. 
 Davidson v. Southern P. Co., 103. 
 Davidson v. Wheeler, 350. 
 Davidson v. Young, 60. 
 Davie V. Levy, 630. 
 Davie V. Wisher, 394, 396. 
 Davies, Ex parte, 442. 
 Davies v. Griffith, 125. 
 Davies v. Johnston, 311. 
 Davlea v. Mann, 576, 577, 578, 579. 
 Davies v. Marshall, 190. 
 Davies V. Snead, 336. 
 Davies v. Solomon, 293. 
 Davies v. Williams, 513. 
 Davis «. Brown, 294. 
 Davis V. Carey, 297. 
 Davis V. Central Congregational Soc, 
 
 627. 
 Davis V. Chapman, 642. 
 Davis V. Davis, 300. 
 Davis V. Detroit, etc. R. Co., 193. 
 Davis V. Duncan, 321. 
 Davis V. Gardiner, 298. 
 Davis V. Gillian, 429. ■ 
 Davis V. Graham, 194. 
 Davis V. Guiarnleri, 621. 
 Davis V. Heard, 353, 363. 
 Davis V. Jackson, 358. 
 Davis V. Lyon, 823. 
 Davis V. New York, etc., Co., 82. 
 Davis V. Michigan B. T. Co., 034. 
 Davis V. Saunders, 172. 
 Davis V. Sawyer, 495. 
 Davis V. Seeley, 376. 
 Davis «. Shepstone, 323, 340. 
 Davis V. Sladden, 294. 
 Davis V. Webster, 142. 
 Davis V. Werden, 306. 
 Davis V. Whitrldge, 201. 
 Davis V. Wilson, 262. 
 Dawkins v. Antrobns, 147. 
 Dawkins v. Gulf C. & 8. F. R. Co., 100. 
 Dawkins v. Lord Paulet, 331. 
 Dawliliis V. Lord Rokeby, 140, 330. 
 l):iwiiing V. McFadden, 145, 
 
702 
 
 TABLE OP CASES CITED. 
 
 The References are to Pages. 
 
 Dawklns v. Prlnee Edward of Saxe 
 
 Weimar, 140, 330. 
 Dawson v. Holt, 286. 
 Day V. Brownrigg, J85, 391. 
 Day V. Day, 515. 
 Daytaarsh v. Hannibal & St. J. K. Co., 
 
 123. * 
 Dayton v. Hoogland, 632. 
 Dayton v. Wllltes, 310. 
 Deal V. Harris, 138. 
 Dealey v, Wuller, 552. 
 Dean v. Ann Arbor St. Ey. Co., 156. 
 Dean v. HuLean, 535, 639. 
 Dean v. Feel, 280. 
 
 Dean v. St. Paul Union Depot Co., 631. 
 Deane v. Bennett, U7, US. 
 Deane v. Clayton, 208. 
 Deiine v. Eandoiph, 69. 
 Dearborn v. Dearborn, 26. 
 Dearijora v. Downing, 632. 
 Dearth i;. Baker, 6H. 
 DeBawp V. Bean, 153. 
 Ducker v. Gaylordi 324. 
 Decker v. Shepherd, 300. 
 DeCoaroy v. Cox, 264. 
 Decaax v. Lisnx, 395. 
 Deday v. Powell. 311. 
 Dee V. Hyland, 244. 
 Deeley v. Dwight, 432. 
 Defbrd v. State, 92. 
 DePrancis v. Spencer, 164. 
 Degg V. Midland E. Co., 126. 
 DeGraff v. New York, etc. E. Co., 193. 
 DeGraffeniied v. Mitchell, 471. 
 DeHarb v. U. S., 46*. 
 ' Dehriug v. Comslock, 531, 550, 634. 
 Deihl V. Ottenville, 110, 
 DeLaGrangB v. S. W. T. Co., 671. 
 Delamatyr v. Eallroad Co., 558. 
 De Laney v. Blizzard, 489. 
 Delaney v. Erickson, 453, 61-1. 
 Delaney v. Kaetel, 313, 334. 
 Delaney v. Eooherean, 648. 
 Del. & H. C. Co. V. Clark, 184. 
 Delaware & H. 0. Co. v. To'rrey, 213. 
 Delaware etc. Ins. Co. v. Croasdale, 306, 
 
 323. 
 Delaware, etc. E. Co. ». Salmon, 44, 617. 
 Dells V. StoUenwerk, 100, 108. 
 Delphi V. LoWery, 211. 
 Delvee v. Boardman, 276. 
 Delz V. Winfree, 403. 
 De.Marenlile v. Oliver, 251. 
 Uemarest v. Ilaidham, 628. 
 Deinarest v. Haring, 291. 
 Uemarest V. Little, 82. 
 I lemocrat Pnb. Co: v. Jones, 291. 
 Dempsoy ». Chambers, 87. 
 Dempsey v. Kipp. 639. 
 Deii V. Kinney, 429. . 
 Denoh v. Walker, 434. 
 Denis v. Leclerc, 224. 
 Dennich v. Railroad Co., 82. 
 Dennis v. Eyan, S93. 
 Dennis v. State, 506. 
 Denoe v. Brandt, 369. 
 Dent?;. King, 231. 
 Denton v. G. N. E. Co., 373, 374, 387. 656, 
 
 676. 
 Denver v. Dunsmore, 70. 
 Denver v. Ehodes, 69. 
 Denver & E. G. E. ii. Harris, 67, 68. 
 Denver & K. G. E. Co. v. Ryan, 569. 
 Denver, S. P. & P. E. Co. v. Conway, 99. 
 
 Derry ». Peek, 354, 355, 366, 363, 368, 371, 
 
 372, 374, 386, 677. 
 ' Desklns v. Gore, 149. 
 Deslottes V. Baltimore, etc, Tel. Co., 675. 
 Desmond v. Brown, 306. 
 Detroit & Milwaukee E. Co. i;. Van Steln- 
 
 burg, 668. 
 Detroit, City of, v. Beekman, 70. 
 Detroit Daily Post Co. v. McArthnr, 318. 
 Detroit etc. E. Co. v. Van Steinbnrg, .^44. 
 Devenflorf v. Wert, 213, 214. 
 Devine v. 'MoCormaok, 370. 
 Devlin v. Gallagher, 615. 
 Devlin v. Smith, 92. 
 Deyiin v. Snellen berg, 422. 
 DeVosse v. City ol Eichmond, 383. 
 DeWahl ii.Branne, 60. 
 Dewier «. Bailey, 633. 
 Dexter v. Cole, 9, 40, 412, 422, 424. 
 Dexter v. McCready, 652. 
 Dexter v. Spear, 287, 288. 
 Dexter v. Paber, 296. 
 Dial V. Halter, 294. 
 
 Diamond v. Northern Pac. E. Co., 662. 
 Dibble ». Jones, 60. 
 Dicken v. Shepherd, 313. 
 Dickerson v. Dickson, 284. 
 Dickerson v. Eogers, 661. 
 Diokeson v. Watson, 170. 
 Dickey v. Andros, 296. 
 Dickey v. Franklin Bank, 434. 
 Dickinson v. Barber, 59. 
 Dickinson v. Davis, 369. 
 Dickinson v.. Gay, 632. 
 Dickinson v. N. E. E. Co., 77. 
 Dickson v. Clifton, 649. 
 Dicks V. Brooks, 389, 390. 
 Dickson v. Chicago, etc. K. Co., 530. 
 Dickson v. Dickson, 2S8, 673. 
 Dickson v. Hoi lister, 43, 591. 
 Dickson v. Phillips, 296. 
 Dickson V. Beater's Telegram Co., 674, 
 
 679. 
 Diehl V. Lehigh Iron Co., 63.i). 
 Dierks v. Oomm'rs of Highways, 450. 
 Dietrichs v. Schaw, 264. 
 Dillingham i;. Anthony, 110. 
 Dillman V. Nadlehoffer, 35B. 
 Dillon V. Washington G. Co., 620. ■ 
 Dimmitt V. Esridge, 487. 
 Dingley v. Bnffum, 479. 
 Disbrow v. Tenbroeck, 443. 
 Dislie ». Walt her, 294. 
 Ditcham v. Bond, 275i i 
 Dittman v. Eepp, 620. 
 Dixon V. Allen, 305, 333. 
 Dixon V. Baker, 70. 
 Dixon V. Bell, 168, 682, 618, 619. 
 Dixon V. Chicago & A. E. Co., 121. 
 Dixon «. Clow, 9,213. 
 Dixon V. Pluns, 634. 
 Dobellii. Napier, 240. 
 Dobell V. Stevens, 379. 
 Dodd V. Arnold, 414. 
 Dodds V. Henry, 301. 
 Dodge V. Colby, 388. 
 Dodge V. Essex Co., 157. 
 Doggette. Adams, 214. 
 Doggett 11. Richmond etc. E. Co., 42, 568. 
 Doherty v. Thayer, 610. 
 Dole V. Erskine, 186, 201, 256. 
 Dole I'. Lyon, 316. 
 Dole V. Van Renselaer, 301. 
 Douaghue v. Gaffy, S23. 
 
TABLE OF CASES CITED. 
 
 703 
 
 The References are to Pages. 
 
 Donahoe v. BichaTds, 145. 
 
 Donahoe v. Wabash, etc. S. Co., 568. 
 
 Donald V. Suckling, 441. 
 
 Donaldson v. Farwell, 369. 
 
 Donaldson v. Miss. & Mo. R. Co., 97. 
 
 Donnelly v. Daggett, 395, 396. , 
 
 Donnelly v. Hafachmidt, 627. 
 
 Donovan o. Gay, 211. 
 
 Dooley v. Stringham, 430. 
 
 Dooley v. Sullivan, 70. 
 
 Dooley Black v. Salt Lake Bapid Tran- 
 sit Co., 155. 
 
 Doran v. Eaton, 375. , 
 
 Doran v. Smith, 61. 
 
 Dore V. Milwaukee, 70. 
 
 Doremus v. McCormiok, 114. 
 
 Doi-land v. Pattprson, 295, 311, 312. 
 
 Dorrah v. Railroad Co., S5. 
 
 Do^:Bey v. Manlove, 519. ' 
 
 Doraey v. Whipps, 297. 
 
 Doss V, Jones, 324. 
 
 Doss V. Secretary of State for India in 
 Council, 134. 
 
 Dottover v. Bushey, 296. 
 
 Dange v. Pierce, 324. 
 
 Dangberty v. Missouri R. Co., 636. 
 
 Daugherty v. Stepp, 422., 
 
 Daughty «. Penobscot Lo'g Driving Co., 
 122. 
 
 Douglas V. Shumway, 4B9. 
 
 Douglass V. Stephens, 91. 
 
 Doulson V. Matthews, 240. 
 
 Dow V. Julian, 223. 
 
 Dow V. Sanborn, 369. 
 
 Dowd V. Tucker, 357. . , 
 
 Dowell V. Guthrie, 545. 
 
 Dowlen v. State, 149. 
 
 Dowling V. Allen, 124. 
 
 Downing v. Wilson, 294. 
 
 Downs V. Allen, 243. 
 
 Dows V. Rush, 680. 
 
 Doyle v. Chicago, St. P. & K. C. By. 
 Co., 537. 
 
 Doyle V. Doyle, 260. 
 
 Doyle V. Jessup, 278. 
 
 Doyley v. Roberts, 303. 
 
 Dozier v. Pillot, 43S. 
 
 Drafus v. Aul, 393, 
 
 Drain v. St. Lonis etc. E. Co., ."I'T. 
 
 Drake, Ex parte, 437. 
 
 Drake v. Wells, 463. 
 
 Draper v. Massachusetts, etc., C!o., 660. 
 
 Drevis v. Woods, 552. 
 
 Drew V. Comstook, 256. 
 
 Drew V. Peer, 9. 
 
 Dreyfus v. Aul, 395. 
 
 Dreyfus v. Peruvian Guano Co., 218, 520. 
 
 Drinkhorn v. Dubel, 267. 
 
 DriscoU V. Marshall, 46S. 
 • Drish V. Davenport, 281. 
 
 Drohn v. Brewer, 40, 220, 685. 
 
 Drown v. Smith, 429. 
 
 Drum V. Harrison, 213. 
 
 Drummond v. City of Eau Clair, 69. 
 
 Drumraond v. Leslie, 311. 
 
 Dube V. City of Luvistpn, 122. 
 
 Dublin, Wicklow and Wexford By. Co. 
 
 V. Slattery, 558, 579. 
 Dubois V. Allen, 276. 
 Dubois V. Budlong, 605, 506. 
 Du Bonlay v. Da Boulay, 185. 
 Dubuque Wood, etc., Assn. v. Dubuque, 
 
 51. 
 Duche V. Wilson, 685. 
 
 Duckworth v. Johnson, 79. 
 
 Dudleys. Briggs, 388. 
 
 Dudley V. Mayhew, 24. 
 
 Duff V. WilUams, 378. 
 
 Duffles V. Duffles, 272. 
 
 Duffus V. Judd, 611. 
 
 Duffy V. Oliver, 122. 
 
 Dufour V. Anderson, 425. 
 
 DuggiuB V. Watson, 110. v 
 
 Dnineeu v. Rick, 459. 
 
 Duke Of Brunswick v. Harmer, 308. 
 
 Duke of Brunswick v. King of Hanover, 
 
 136. 
 Dulaney v. Rogers, 367. 
 Dames v. McLoskey, 472. 
 Dun V. Bank, 336. 
 Dun,«. Seaboard & R. B. Co., 587. 
 Dunaley v. Bogera, 3.53. 
 Duncan v. Cobby, 368. 
 Duncan v. Commonwealth, 253. 
 Duncan v. Goeflroy, 504. ' 
 Duncan v. Griswold, 398. 
 Duncan v. Hayes, 506. 
 Duncan v. Hogue, 375. 
 Duncan v. Niles, 660. 
 Duncan v. Yordy, 449. 
 Dnngan v. Cpreton, 357. 
 Dunham v. Powers, 328. 
 Dnnlap v. Snyder, 616. 
 Dunlap V. Wagner, 29. 
 Dunn V. Austin, 503. 
 Dunn V. Birmingham Canal Co., 608. 
 Dunn V. Gilman, 141. 
 Dunn V. Hall, 310. 
 Dunn V. Oldham, 367. 
 Dunn V. White, 378. 
 Dunnell v. Piske, 312. 
 Dunning v. Bird, 202. 
 Dunsbach «. HoUister, 614. 
 Dunston v. Peterson, 143. 
 DuPratt V. Lick, 92. 
 Dnrand v. Borough of Ansonia, 157. 
 Durand v. HoUins, 133. 
 Durango, City of, v. Luttrells, 157. 
 Durant v. Palmer, 624. 
 Durant v. Bogers, 3S4. 
 Durfour v. Anderson, 432. 
 Durham v. Musselman, 614. 
 Dnrkee v. Vt. Q. Bd. Co., 675. 
 Durkin v. Cobletgh, 351. 
 Duryeaw. New York, 519. 
 Dush V. Fitzhugh, 567. ' 
 
 Dastin v, MoAndrews, 683. 
 Dusy V. Helm, 265. 
 Dutzi V. Gei^el, 889. 
 Duval V. Davey, 324. 
 Duvall V. Waters, 430. 
 Dwain v. Discols, 394. 
 Dwyer v. Hickler, 120. 
 Dwyer v. St. Louis, etc. B. Co., 194. 
 Dyer v. Erie Ey. Co., 549. 
 Dyer v. Hargrave, 379. 
 Dyer v. St. Louis & 8. F. E. Co., 211. 
 
 E. 
 
 Eagan v. Call, 632. 
 
 Eagan v. Fitchbury E. Co., 543. 
 
 Eagan v. Murray, 276. 
 
 Eager v. Grimwood, 280. 
 
 Eagle Packing Co. v. Defries, 637. 
 
 Eames v. New Eng. Worsted Co., 605. 
 
704 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Earl V. Van Alstyne, 613. 
 Earle v. Hall, 91. 
 
 Earl of Lonsdale v. Nelson, 517, 493. 
 Early V. Fleming, 611. 
 Earp V. Lee, 616.r 
 Eases v. Btate, 262. 
 EasOB V. S. & E. T. Ry. Co., 126. 
 EasterbTook v. Erie R. Co., 217. 
 Eastman v. Keasar, 395. 
 -Eastman v. Rice, 173, 611. 
 East St. L. Facbiug Co. ». Hightower, 
 
 193. 
 BastTenneBsee R. Co. v. White, 55B. 
 East Tennessee etc. R. Co. v. Gurlty , 125. 
 Eaton V. Avery, 357. 
 Eaton V. Earopeau R. Co., 91. 
 Eaton V. Hill, 62. 
 Baton V. Lyman, 213. 
 Eaton V. wenn, 639. 
 Eaton V. Winnie, 370, 378. 
 Eberly v. Rapp, 398, 400. 
 Ecclesiastical Comm'rs v. Kino, 511. 
 Bckerson v. Crlppen, 459. 
 Eckert v. L. 1. R. Co., S6S, 595. 
 Eddy V. Lafayette, S61. 
 Edelmau v. Yeakel, 479, 640. 
 Edgerly v. Swain, 296. 
 Bdgington v. Fitzmaurice, 356, 360, 368. 
 Bdlckj;. Crim,353. 
 Edmondson v. City of Moberly, 4S6. 
 Edranndson v. Pittsburg, etc., R. Co.. fl2. 
 Edrlngton V. Louisville etc Ry. Co., 561. 
 Edwards v. Ferguson, 145. 
 Edwards v. Knapp, 326. 
 Edwards v. L. &N. W. R. Co., 109. 
 Edwards v. Leavitt, 235. 
 Edwards v. Midland Rail Co., 397. 
 Edwards v. New York etc. R. Co., 627. 
 Edwards v. San Jose, 311. 
 Edwlck V. Hawkes, 466, 467. 
 Bggleaton v. Lykes, 464. 
 Eilenbergerti. Prot.Mut F.Ins. Co., 112. 
 Blam V. Badger, 812. 
 Elder V. Allison, 363. 
 Elder v. Bemis, 8'^. 
 Elder v. Morrison, 141. 
 Electro-Silicon Co. v. Levy, 235. 
 Elgin V. Kluiball, 69. 
 Blias V. Bnowdon State Quarries Co., 428. 
 EUegard v. Acklnnd, 99. 
 EIllngtOD V. Ellington, 277, 278. 
 Elliott, Ex parte, 237. , 
 Elliott V. Brown, 201. 
 Elliott V. Hall, 630. 
 Elliott !i. Herz, 614. 
 Elliott V. Jackson, 658. 
 Elliott V. Russell, 605. 
 Elliott V. Van Buren, 325. 
 Ellis V. Andrews, 3^7, 359. 
 Ellis V. Buzzell, 326. 
 Ellis V. Cleveland, 261. 
 Ellia V. Duncan, 178. 
 Ellis ». G. W. R. Co., 558, 569. 
 Ellis V. Iowa City, 167. 
 Ellis V. Kansas City R. Co., 505. 
 Ellis V. Lindly, 828. 
 Ellis V. Loftus Iron Co., 49, 612. 
 Ellis V. Portsmouth, etc. R. Co., 504. 
 Ellis V. Sheffield Gas Consumers Co., 88. 
 Ellis V. Btate, 185. ' 
 Ellis V. Wren, 482. 
 EUithorpe v. Reidessell, 213. 
 Ellsworth V. Hayes, 294. 
 Elmer v. Eessenden, 838. 
 
 Elmore v. Brooks, 648. 
 
 Blsey V. Postal T. Co., 674. 
 
 Elsmore v. Longfellow, 143. 
 
 Bister V. City of Sprlngfleld, 17& 
 
 Blwell V. Martin, 61. 
 
 Elwood V. W. U. T. Co., 674. 
 
 Ely V. Bhle, 434. 
 
 Ely V. Stewart. 37.5. 
 
 Ely V. Supervisors of Niagara County, 
 
 516. 
 Ely V. Thomson, 138. 
 Emblen v. Myers, 221. 
 Emerson v. Brigham, 370. 
 Emetson v. Cochran, 393, 400. 
 Emerson v, McNamara, 658. 
 Emery v. Grinnan, 399. 
 Emery v. Gowen, 277. 
 Emery v. Hapgood, 265. 
 En ery v. Miller, 812. 
 Emery v. Railroad, 544. 
 Emmens v. Pottle, 309. 
 En'ders v. Beck, 64. 
 Enders v. Board Public Works, 683. 
 Endsley v. Johns, 375. 
 Engel V. Smith, 591. 
 England v. Cowley, 437. 
 Englehardt v. Btate, 25b. 
 English V. Powell, 448. 
 English V Progress etc. Co., 405. 
 Entlck V. Carrlngton, 10, 135, 42:2. 
 Erber v. Dunn, 836. 
 Erd V. Chicago, etc. R. Co., 504. 
 Erghott V. Mayor, etc., 218. 
 Erie V. Magill, 633- 
 Erie Dispatch v. Johnson, 443. 
 Erie Pass. Ry. Co. v. Sctinster, 583. 
 Brsklnet;. Eohnback,262. 
 Eriston v. Cramer, 306. 
 Ernst V. Hudson River R. Co., 378. 
 Erwin v. Davenport, 648. 
 Brwin v. Olmstead, 447. 
 Erwin v. Suinrovv, 334. 
 Escauba v. Chicago, 156. 
 Estahan v. Card, 312. 
 Estes V. Antrobns, 303. 
 Estes V, Worthington, 225. 
 Estopinal v. Peyroux, 138. 
 Esty v: Wllmot, 479. 
 Eswin V. St. Louis, etc. Ry. Co., .'585. 
 Evans «. American Iron & Tube Co., 121. 
 Evans v. Bicknell, 881. 
 Evans v. Carbon Hill Coal Co., 120. 
 Evans v. Davidson, 110. 
 Evans V. Edmonds, 367. 
 Evans v. Lipplncott, 120. 
 Evans v. Mason, 443. 
 Evans v. McDermott, 613. 
 Evans ®. Miller, 658. 
 Evans V. Smith, Sl6. 
 Evans v. Waite, 186. 
 Evans v. Walton, 278L 
 Evans v. Watrous, 26, 
 Evansville< etc., R. Co. v. Banm, 84, 108. 
 Evansville, etc. R. Co. ». Griffln, 627. 
 Evansville & R. R. Co. v. Madux, 193. 
 Evening Journal Assn. v. McDermott, 
 
 67. 
 Everett v. CofBn, 439, 454. 
 Everett v. Henderson, 392. 
 Eveston v. Cramer, 323. 
 European etc. Co. «. Royal Mall Co., 442. 
 Ewlng V. Pittsburgh etc., Ry. Co., 55. 
 Ewing V. Rourke, 483. 
 Ewlng V. Sanford, 393. 
 
TABLE OF CASES CITED. 
 
 705 
 
 The References are to Pages. 
 
 Excellent, The, 680. 
 Express Printing Co. 
 Eyre, Ex parte, 114. 
 
 V. Copeland, 321. 
 
 F. 
 
 Fadner v. Filer, 394. 
 
 Fagnndes v. Central P. E. Co., 120. 
 
 Fahn v. Beichart, 183, 503. 
 
 Fahr v. Hayes, 333. 
 
 Fairbank v. Newton, 410. 
 
 Falrchild v. Bentley, 614. 
 
 Fairhurst v, Liverpool Adelphi Loan 
 
 Ass'n, 65. 
 Faitli V. Carpenter, 81. 
 Fake v. Addicts, 613. 
 Falsom V. Brown, 326. 
 Palvey v. Stanford, 212. 
 Faber v. Mo. Pac. R.' Co., 110. 
 Farbish v. Bradford, 225. 
 Farewell v. Boston & W. E. Co., 124. 
 Fargis ». Walton, 459. ' 
 
 Farmer's Co-Opr. Trust Co. r. Floyd, 60O. 
 Famam v. Brouks, 245, 
 Farnsworth v, Starrs, 146, 339. 
 ]<'arT V. Rasco, 315. 
 Farrand v. Marshall, 216, 493. 
 Farrant v, Barnes, 619. 
 Farrar v. Bridges, 356. 
 Farrell v. CalweU, 218. 
 Farrell v. Cook, ,522. 
 Farwell v. Becker, 232. 
 Farwell v. Boston, etc.. Corporation, 89- 
 
 116, 119. 
 Fasset v. Boxbury, 552. 
 Fatnell v. Courtney, 253. 
 Faulkes v. Metrop. District B. Co., 630. 
 Faulkner v. Anderson, 478, 640. 
 Fausler v. Parsons, 148. 
 Pay V. Davidson, 91. 
 Fay V. Prentice, 493. 
 Fay V. Strawn, 26. 
 Fay V. Whitman, 506. 
 Fearn v. Shiley, 243. 
 Felch B.Allen, 117. 
 Felkneru. Scarlet, 279. 
 Fellows V. Oneida, 384. 
 Feltham v. England, 124. 
 Pelton s;. Deall,530, 
 Fenaille v. Coudest, 26. 
 Fenn v. Bittleson, 445. 
 Fent V. Toledo, etc., Co., 44. 
 Fenton v. Wilson S. M. Co., 68. 
 Feigason v. Bobo, 60. 
 Fergnson v. Brooks, 63. 
 Ferguson v. Collins, 83, 64. 
 Ferguson v. Firraenich Mfg. Co., 519. 
 Ferguson «.' Wisconsin, etc. B. Co., 557. 
 Fernslee v. Meyer, 279. 
 Fero V. Buscoe, 324. 
 FerrelltJ. Boykin, 276. 
 Ferrin v. Symonds, 640. 
 Ferns v. Welbom, 225. 
 Ferry v. Manhattan P. Ooi, 552. 
 Fertloh v. Miohermer, 149. 
 Fewell v. Collins, 243. 
 Fiddler v. MoKinney, 685. 
 Fidler V. Delavan, 324. 
 Field V. Oolson, 301. 
 Field V. New York Cent. B. Co., S61. 
 Fields V. Bowse, 376. 
 FUber v. Dantermann, 294, 312. 
 
 Filber v. Hobb, 447. 
 
 Filburn ii. Aquarium, 613. 
 
 Filer v. New York Cent. B. Co., 544, 
 
 595, 633. 
 •Fillebrown o. Hbar, 220. 
 FiUiter V. Phippai^, 617. 
 Filson V. Crawford, 805. 
 Finch V. Biverside & A. By. Co., 156. 
 Flndlay v. McAllister, 403. 
 Fine Art Society v. Union, Bank of 
 
 London, 436. , 
 
 Fink ». Des Moines Ice Co., 123. 
 Fink V. Missouri Furnace Co., 9i. 
 Flnlay v. Chirney, 71, 680. 
 Finley v, Hersliey, 5J9. 
 Finley v.. Langston, 503. 
 Pindley v. Smith, 429. 
 Finley v. St. Louis Refrigerator Co., 
 
 265. 
 Fignant v. Allison, 659. 
 Firbanks Executors v. Humphreys, 361. 
 Fire Assn. v. Fleming, 263. 
 Firestore v. Bice, 267. 
 First Cong. Cli. v. Muscatine, ti7. 
 First Nat. Bank, In re, 8L 
 First Nat. Bank v. Adam, 472. 
 J'lrst Nat. Bank v. Cook Carriage Co., 
 
 680. 
 First Nat. Bank v. North, 363. 
 First Nat. Bank of Meadville v. Fourth 
 
 Nat. Bank of N. Y. 26. 
 Firth V. Bowling Iron Co., 605. 
 Fischer v. Niocolls, 27. 
 Fish V. CleJand, 362. 
 Fish V. Clifford, 432. 
 Fish V. Ferris, 62, 443. 
 Pish V. Soniat, 32S. 
 Fiahback v. Miller, 375. 
 Fish Bros. Wagon Co. v. La Belle 
 
 Wagon Co., 184. 
 Fishel V. Lueckel, 224. 
 Fisher v. Budlong, 858. 
 Fisher v. Clark, 503i 506. 
 Fisher v. Forrester, 395. 
 Fisher v. Jackson, 148. 
 Fisher v. Keane, 147. 
 Fishery Langbeiu,264. 
 Fisher v. McGirr, 199. 
 Fisher V. Mellen, 361. 
 Fisher v. Oregon etc. B. Co., 123; 
 Plshkill Saving Inst. ■». Bostwiek, 67. 
 Pisk V. Missouri Furnace Co., 586. 
 Pisk V. Wait, 591, 615. 
 Flske V. Forsyth Dyeing Co., 552. 
 Fitch «. Custer, 642. 
 Pitch V. Gosser, 452. 
 Fitz e. Hall, 60. 
 Fitzgerald v. Cavln, 190. 
 Fitzgerald v. Fiizgerald, 248. 
 Fitzgerald v. Honkomp, 117. 
 Fitzgerald v. Eedfleld, 300. 
 Fitzgerald v. Stewart, 316. 
 Fitzgerald v. Town of Weston, 575. 
 Fitzgerald v. Valvln, 253. 
 Fitzfohn v. Mackinder, 266, 397. 
 Fltzpatrick v. Boston & M. B.,K., 214. 
 Pitzsimmons v. Joslih, 383. 
 Fivay V. Nicholls, 208. 
 Flanders v. Colby, 412. 
 Flanders v. Norwood, 70. 
 Flatow V. Van Bramsen, 291, 302. 
 FJeet V. Hol)enkemp,26. 
 Fleischmann v. Starkey, 184. 
 Fleming's case, 666, 679. 
 
 45 
 
7oe 
 
 TABLE OF CASES CITEP. 
 
 The References are to Pages. 
 
 Fleming v. Dollar, 326. 
 
 Fleming v. Hislop, 498, 6-21. 
 
 Fleming v. Manchester, Sheffield & Lin - 
 colnshlre B. Co., 651. 
 
 Fleming v. Eamsey, 611. 
 
 Fletcher, Ex parte, 169. 
 
 Fletcher v. Bealey, 523. 
 
 Fletcher v. Cole, 206. 
 
 Fletcher v. Evans, 639. 
 1 Fletcher v. Eveans, 163. 
 I Fletcher v. Ingram, 114. 
 
 Fletcher v. People, 119. 
 
 H letcher v. Rylands, 599, 603, 609, 613. 
 
 Fletcher v. Smith, 603. 
 
 Flewster v. Eoyle, 267. 
 
 Fllckinger v. Shaw, 162. 
 
 Flickinger v. Wagner, 393. 
 
 Flike V. noston & A. R. Co., 125. 
 
 Fllnn V. New York etc. E. Co., 561. 
 
 Flint V. Franzman, 118. 
 
 Flint V. Bussell, 606. 
 
 Flint etc. E. Co. v. Detroit etc. E. Co., 
 163. 
 
 Flora V. Maney, 70. 
 
 Flower v. Farwell, 369. 
 
 Flower v. Pennsylvania E. Co., 126. 
 
 Floyd V. State, 257, 259, 262. 
 
 Floyd V. Wiley, 659. 
 
 Flanker v. Georgia Eailroad & Banking 
 Co., 271. 
 
 Flynn v. Railroad Co., 562. 
 
 Flynn v. Solem. 122. 
 
 Flynn v. San Francisco, etc. Ry. Co., 504. 
 
 Flynn v. Taylor, 187. 
 
 Foard v. McComb, 363. 
 
 Fogarty v. Jnnction Uity etc. Co., 506. 
 
 Fogg V. Boston & L. R. Co., 66, 68. 
 
 Fogg V. Grlffln, 386. 
 
 Fogg V. N. C. O. Ry., 528. 
 
 Foley V. Jersey City etc. Co., 192. 
 
 Foley V. Wyeth, 216, 193. 
 
 Follett V. Edwards, 112, 113. 
 
 Folcom V. Marsh, 221. 
 
 FonviUe v. McNease, 287. 
 
 Fonvllte v. Kease, 338. 
 
 Foot V. Brown, 300. 
 
 Foral V. Hellett, 312. 
 
 Forbes v. Boston & L. E. Co., 113. 
 
 Forbes v. Hagman, 393, 396. 
 
 Ford V. Caldwell, 659. 
 
 Ford V. Johnson, 297. 
 
 Ford V. Monroe, 81. 
 
 Ford V. Taggart, 202. 
 
 Kordyce v. Stone, 211. 
 
 Form wait v. Hylton, 9. 
 
 Forsdlke v. Stone, 221. 
 
 Forshee v. Abrams, 323. 
 
 Forsythe v. Hooper, 91, 
 
 Fort V. Parsley, 132. 
 
 Fort Wayne v. Coombs, 70. 
 
 Fortman v. Eattier,396. 
 
 Fortune v. Jones, 201. 
 
 Fortane v. Trainor, 106. 
 
 Forward v. Adams, 301. 
 
 Foss V. Boston & M. E. Co., 558. 
 
 Possi;. Hlldredth, 323, 327. 
 
 Foss V. Stewart, 112. 
 
 Foster V. Essex Bank, 108, 386. 
 
 Foster v. Scrippes, 301. 
 
 Foster v. Small, 301. 
 
 Fotherlngham ». Adams Express Co., 
 260. 
 
 Fonldes v. WiUoughby, 425, 137. 
 
 Foulger v. Newcomb, 303. 
 
 Foulkes V. Metrop. District E. Co., 657, 
 
 661, 663, 661. 
 Fountain v. West, 326, 327. 
 Foval V. Hallett, 312. 
 Fowler v. Baltimore etc. E. Co., 53S, 
 
 5B9, .571. 
 Fowler i;. Chichester, 63, 316. 
 Fowler u. Gilbert, 331. 
 Fowler v. Jenkins, 33. 
 Fowler V. McCann, 376. 
 Fowler v. Sergeant, 26, 27. 
 Fowler v. Wallace. 325. 
 Fowles V. Boweri, 301, 302, 307, 331. 
 Fox V. Baltimore R. Co., 151. 
 Fox V. Glastenberg, 510. 
 B'ox V. Jones, 26. 
 Fox V. Sackett, 591. 
 Fox V. Stevens, 281. 
 
 Frace v. New York, L. E. & W. E. Co., 13. 
 Fraker v. St. Paul etc. E. Co., 122. 
 Francaise v. Scbultz, 181. 
 Francis v. Cockrell, 626. 
 Francis v. Schoellkopf, 211, 505, 506. 
 Francisco v. State, 260. 
 Frank v. City of St. Louis, 591. 
 Frank v. New Orleans, etc. R. Co., 518. 
 Frankford, etc., Co. v. Phila. etc., R. (Jo., 
 
 501. 
 Frankfort Bank v. Johnson, 112. 
 Franklin v. HcCarkle, 278, 281. 
 Franklin v. S. E. R. Co., 79. 
 Franklin Coal Co.t;. McAlallcn, 130. 
 Frankord & B. T. Co. v. Phila. & T. R. 
 
 Co., 552. 
 Fraser v. Freeman, 110. 
 Fraser». Red Eiver Lbr. Co., 120. 
 Fray v. Blackbura, 140, 
 Frazier v. Brown, 178. 
 Frazler v. Nortimus, 473, 611. 
 Frazier v. Turner, 261, 264. 
 Fredesitze v. Odenwalder, 323. 
 Frederictson v. Singer Mfg. Co., 218. 
 Freeman v. Boland, 62, 413. 
 Freeman v. Cornwall, 145. 
 Freeman v. Grant, 438. 
 Freeman v. Price, 316. 
 Freeman v. Saunderson, 298, 333. 
 Freeman v. Sayre, 216. 
 Freke v. Calmady, 128. 
 Fremantle v. L. & N. W. E. Co., 608. 
 French v. Bancroft, 260. 
 French v. Creswell, 110. 
 French v. Smith, 301. 
 French v. Vlning, 370, 632. 
 Frenzee v. Miller, 357. 
 Frendenstein v. Heine, 491. 
 Fresno, City of, v. Fresno, etc. Co., 500. 
 Prey v. Harrison, 680. 
 Frick V. St. Louis, etc. E. Co., 656. 
 Fritz V. Hobson, 490, 508, 520. 
 Friend v. Wood, 606. 
 Frink v. Potter, 656. 
 Frogley v. Earl of Lovelace, 460, 161. 
 Frohreich v. Gammon, 681. 
 Frolich V. McKierman, 296. 
 Fronle v. Dennis, 431. , 
 Frost V. Domestic, etc., Co., 68. 
 Frost V. Grand Trunk E. Co., 164. 
 Frowbrldge v. Ballard, 141. 
 Fry ». Bennett, 305, 809. 
 Fry V. Derstler, 274. 
 Fry V. Leslie, 61, 281. 
 Ft. Worth & D. C. By. Co. v. Robertson, 
 
 585. 
 
TABLE OF CASES CITED. 
 
 707 
 
 Fngate v. Millar, 393. 
 
 Funr V. Dean, 462. 
 
 Fulgham v. State, 150. 
 
 Pullam V. Stearns, 214. 
 
 Fuller V. Bowker, 260. 
 
 Fuller V. Daniels, 22B. 
 
 Fuller V. Daren, 659. 
 
 Fuller V. Hodgden, 375. 
 
 Fulton V. Fulton, 432. 
 
 Fulton V. Hood, 357, 375. 
 
 Fulton V. McDaniel, 375. 
 
 Fulton V. Stalls, 263. 
 
 Fulton County S. R. Co. v. McConnell, 92. 
 
 Fultz V. Wycofl, 370. 
 
 Funston v. Chicago, etc. B. Co., 557. 
 
 Furman v. Van Sise, 277. 
 
 Furth V. Foster, 615. , 
 
 Fuselier v. Spalding, 606. 
 
 Gabe v. MoGinnis, 312. 
 
 Gage V. SUelton, 294. 
 
 Gagg V. Vetter, 153, 503, 543. 
 
 Gaines v. Greene, etc. Co., 430. 
 
 Gainesville etc. E. Co. v. Hall, 154. 
 
 Galbreath v. Epperson, 441. 
 
 Gale V. McDaniel. 214. 
 
 Gale V. Parrott, 276. 
 
 Galena R. Co. v. Rae, 112. 
 
 Galesburg V. Hlgley, 69. 
 
 Gallagher v. Brunei, 356, 672. 
 
 Gallagher v. Dodge, 182. 
 
 (jallagher v. Piper, 125. 
 
 Gallagher v. State, 257. 
 
 Gallagher v. Stoddard, 395. 
 
 Galligan V. Manufacturing Co., 24. 
 
 Galloway v. Chicago, etc. Ry. Co., 537. 
 
 Galoway «. Stewart, 394. 
 
 Galveston etc. R. Co. v. Farmer, 122. 
 
 Galvln V. Mayor etc. of New York, 591, 
 
 Gambich v. Wurst, 24. 
 
 Gandy v. Jubber, 530. 
 
 Ganson v. Madigan, 683. 
 
 Garrard v. Pittsburg etc. R. Co., 454. 
 
 Gurdemal v, Mc Williams, 328. 
 
 Gardner v. Alering, 429. 
 
 Gardner v. Bennett, 950. 
 
 Gardners. Campbell, 479. 
 
 Gardner v. Heartt, 537. 
 
 Gardner v. Rowland, 639. 
 
 Gardner v. Stroever, 522. 
 
 Garfleld v. Douglass, 138. 
 
 Garley v. Armistead, 440. 
 
 Garnett v. Bradley, 216. 
 
 Garnsay v. Rogers, 675. 
 
 Garr v. Selden, 300, 328. 
 
 Garret v. Taylor, 284. 
 
 Garrett v. Bickler, 244. 
 
 Garrett v. Dickerson. 295, 311, 
 
 Garrett v. Freeman, 503. 
 
 Garretzen v. Daenchkel, 101, 110. 
 
 Garrison v. Barnes, 614. 
 
 Garrison v. Burden, 274. 
 
 Garrison v. Memphis Ins, Co,, 606. 
 
 Garrow ». Davis, 375. 
 
 Garvey v. Dung, 110. 
 
 Uuskins V. Atlanta, 70. 
 
 Gaslight and Coke Co. v. Vestry of St. 
 
 Mary Abbotts, 159. 
 Gassett v. Gilbert, 334, 337, 338. 
 Gastenhoffer v. Claire, 642. 
 
 The References are to Pages. 
 
 Gately w. Kniss, 93. 
 
 Gates V. Fleischer, 27. 
 
 Gates ». Lonsburg, 112. 
 
 Gates V. Southern Minn, R. Co., 605. 
 
 Gaul D.Fleming, 305. 
 
 Gault V. Humes, 164. 
 
 Gauntv. Finney, 623. 
 
 Gautret v. Egertou, 640. 
 
 Gavin v. Chicago, 586. 
 
 Gayetty v. Bethune, 466. 
 
 Gaylord v. Morris, 425. 
 
 G. C. & S. F. Rv. Co. V. Box, 534. 
 
 G. C. & S. F. Ry. Co. v. Greenlee, 532. 
 
 G. C. & S. F. Ry. Co. v. Levy, 675. 
 
 GibbsD. Guild, 245. 
 
 Geil dls V. Proprietors of Baun Reservoir, 
 
 156. 
 Gee V. Culver, 393. 
 Gee V. Metropolitan R. Co., 199, 692. 
 Goer V. Darrow, 92, 96. 
 Geise v. Schultz, 281. 
 Gclsler v. Brown, 293. 
 Gelzenhenchterj). Neimeyer, 204, 265. 
 Gennenzo v. De Forest, 63. 
 George v. Haverhill, 21S. 
 George v. Lemon, 324. 
 George v. Skivington, 622, 667. 
 George v. St. Louis etc. K., 629. 
 George v. The Wabash Western Ry. Co., 
 
 614. 
 George v. Van Horn, 279. 
 Georgetown <!tc. R. Co. v. Doyle, 157. 
 Georgia j>. Kifford, 286. 
 Georgia R. Od. v. Neely, 610. 
 Georgia It. Co. v. Pittman, 81. 
 Georgia Pao. Ry. v. Davis, 669. 
 Georgia Pac. liy. Co. v. Fullerton, 218. 
 Geraty v. Stern, 110. 
 German v. Clark, 483. 
 Germanialns. Co. v. The Lady Pike, 9C. 
 Gerrish v. Brown, 487. 
 Gerst V. Jones,-^632. 
 Getchelljj. Hill, 27. 
 Getchell v. Lindley, 27. 
 Gettins v. Scudder, 26. 
 (jetty V. Rountree, 632. 
 Getzler v. Wltzee, 206. 
 Goveke v. Grand Rapids etc. B. Co., 656. 
 G. H. & S. A. Ry. Co. v Donah o, 106. 
 Gheen v. Johnson, 26. 
 Gholston V. Gholston, 150. 
 Gibbons v. Farwell, 434. 
 Gibbons v. Pepper, 172. 
 Gibbons v. Wilkesbarre etc. St. Ry. Co., 
 
 690. 
 Gibbonb v. Williams, 883. 
 Gibbons v. Wisconsin, etc., Ry. Co., 504. 
 Gibbs V. Belcher, 81, 
 Gibbs V. Chase, 9, 
 Gibbs V. Dewey, 294, 
 Gibbs V. liandlett, 261, 
 Gibbs V. Weston, 432, 
 Gibson v. Black, 484. 
 Gibson v. Cincinnati Inquirer, 312. 
 Gibson V. Cunningham, 339. 
 Gibson v. Evans, 311, 
 Gibson v. Gibson, 64, 295. 
 Gibson V. Spear, 60. 
 Gibson V. St. Louis A. & M. Assoc, 462. 
 Gibson v. "Williams, 295. 
 GIddens v. Mirk, 294. 
 Giese v. Shultz, 685. 
 Gilford V. Hulett, 506. 
 Gilford V. Weber, 213. 
 
708 
 
 TABLE OF CASES CITED. 
 
 The References' are to Pages. 
 
 Gilbert v. Breach, 92. 
 
 Gilbert v. Borgatt, 349. 
 
 Gilbert v. Emmons, 265. 
 
 Gilbert v. Palmer, 305. 
 
 Gilbert v. People, 328. 
 
 Gilbert v. Sbowerman, 495. 
 
 Gilbertson v. Fuller, 395. 
 
 Gilchrist v. Van Dyke, 482. 
 
 GUee V. Simonde, 469, 464. 
 
 Gillespie v. Hudson, 395. 
 
 Gillespie v. McGowan, 24. 
 
 Gilliam V. South & N. A. B. Co., 108. 
 
 Gilliford v. Windell, 393. 
 
 Gillingham v. Ohio Biver E. Co., 264. 
 
 GllUson V. Charleston, 71. 
 
 GlUott V. Ellis, 606. - 
 
 Gilman v. Emery, 425." 
 
 Gilman v. Hnnnewell, 184, 225. 
 
 GUman v. Lowell, 296, 324, 334. 
 
 Gilmartln v. New York, 97. 
 
 Gilmore v. Drisooll, 216. 
 
 Gilmore v. Newton, 439. 
 
 Gilson V. Collins, 26. 
 
 Girot V. Graham, 392. 
 
 Givens v. Van Studdlford, 520. 
 
 Gladfelter v. Walker, 492. 
 
 Gladwell v. Steggall, 27, 617, 653. 
 
 Glasgow V. Owen, 894. 
 
 Glasier v. Bolls, 364. 
 
 GlasBpoole v. Young, 143, 471. 
 
 Glaze V. McMillion,432. 
 
 Gleason v. Clark, 26. 
 
 Glendon Iron Co. v. Uhler, 33, 182, 184. 
 
 Glenn v. Kays, 199, 412, 477. 
 
 Gliddon V. McKintry, 545. 
 
 Gloaming, The, 630. 
 
 Globe Milling Co. v. Minneapolis Ele- 
 vator Co., 680. 
 
 Glossom V. Staples, 400. 
 
 Gloucester v. Beach, 456. 
 
 Glover v. L, & S. W. Bail. Co., 41. 
 
 G. N. E. V. Halloren, 629. 
 
 Goad V. Johnson, 370. 
 
 Goddard v. Grand Trunk E., 67, 105. 
 
 Godillot V. Harris, 225. 
 
 Go^tchens v. Mathewson, 148. 
 
 Goetz V, Ambs, 223. 
 
 Goff V. G. N. E. Co., 107. 
 
 Goffi V. ObertenfEer, 459. 
 
 Goffln V. Donnelly, 830. 
 
 Gold V. Bissell, 260, 264. 
 
 Golden v. Newbrand, 107. 
 
 Golderman v. Stearns, 299. 
 
 Goldrlch v. Eyan, 370. 
 
 Goldsmid v. Tunbridge Wells Improve - 
 ment Gommrs., 524.i| 
 
 Goldsmith v. Joy, 263. 
 
 Goldstein v. Chicago, etc., E. Co., 633. 
 
 Gongolas v. New York etc. E. Co., 644. 
 
 Gooch V. Stephenson, 611. 
 
 Goodale v. Tuttle, 178. 
 
 Goodale v. Shurman, 211. 
 
 Goodell V. Bluff City Lbr. Co.. 683. 
 
 Goodlett V. Louisville & N. E. E. Co., 
 544. 
 
 Goodrich v. Hooper, 286. 
 
 Goodrich v. Woolcott, 312. 
 
 Goodson V. BiehardHOU, 482. 
 
 Goodspeed v. East Haddam Bank, 67, 68. 
 
 Goodwin V. Ohevley, 478, 612. 
 
 Goodwin V. Home, 857. 
 
 Goodyear ». Day, 22.^. 
 
 Goodyear v. Phelps, 67. 
 
 Goot V. Pulsifer, 333. 
 
 Gordan v. Parmalle, 357. 
 
 Gordon v. Farrar, 148. 
 
 Gordon v. Grand St. E. Co., 378. 
 
 Gordon v. Manchester, etc. E. Co., 656. 
 
 Gordon v. Parmelee, 326. 
 
 Gordon v. Stockdale, 434. 
 
 Gorham ©..Gross, 603, 639. 
 
 Gorham v. Ives, 294, 295. 
 
 Gorman v. Pacific E. Co., 610. 
 
 Gorman «. State, l49, 
 
 Gormeley v. Gym. Assoc, 360.- 
 
 Gormly v. Vulcan Iron Works, 124. 
 
 Gorrell v. Snow, 396. 
 
 Gorrls v. Scott, 25, 230. 
 
 Gorton v. Frizzell, 264. 
 
 Gosden v. Elpbich, 267. 
 
 Goshen Turnpike Co. v. Sears, 42. 
 
 Gott V. Pulsifer, 304, 305, 38S. 
 
 Gottehuet v. Bubachek, 812. 
 
 Gougti V. Goldsmith, 807. 
 
 Gould V. Gould, 230. 
 
 Gould V. Hammond, 145. 
 
 Gould V. Slater Woolen Co., 164, 621. 
 
 Gourdier v. Gorm.ick, 92. " 
 
 Government St. E. Co. v. Hanlon, 574, 684. 
 
 Grabel v. Wapello Coal Co., 552. 
 
 Grable o. Margrave, 281. 
 
 Grace v. McArthur, 333, 346. 
 
 Grace v. Teague, 264. 
 
 Grady v. Wolsner, 484. 
 
 Grafton v. Carmichael, 142, 420, 432. 
 
 Graham v. Dahlonega G. M. Co., 225. 
 
 Graham v. Gantler, 27. 
 
 Graham v. Pacific E. Co., 211. 
 
 Graham v. Peat, 451. 
 
 Graham v. Boder, 220. 
 
 Graham v. Smith, 279. 
 
 Grainger v. Hill, 259. 
 
 Gramm v. Boener, 27. 
 
 Grandona v. Lovdal, 492. 
 
 G. E. & I. R. V. Boyd, 629. 
 
 Grand Bapirts, City of, v. Weiden, 522. 
 
 Grand Tower Co. v. Phillips, 683, 685. 
 
 Grand Trunk By. Co. v. Ives, 537. 
 
 Grand Trunk E. Co. v. Latham, 84. 
 
 Grand Trunk E. ot Canada v. Jennings, 
 
 79. 
 Grant v. Moseley, 538, 574. 
 Grant v. Power Co., 24. 
 Grant v. Schmidt, 528. 
 Grantv. Slater, 228. 
 Grant v. Union Pae. Ey. Co., 164. 
 Grant v. Willey, 222. 
 Gravelle v. Minneapolis & St. L. B. Co.. 
 
 124. 
 Graves v. Smith, 443. 
 Gray v. Ayres, 206, 616. 
 Gray v. Boston Gas Light Co., 232. 
 Gray o. Durland, 279. 
 Gray v. Kimball, 141. 
 Gray v. Pentlaod, 338. 
 Gray v. POllen, 85. 
 Gray v. Scott, 5B7. 
 
 Great Palls Co. w. Worcester, 448^ 528. 
 Great Western E. Co. v. Haworth, 537. 
 Greavy v. Long Island B. Co., 557. 
 Green v. Banta, 125. 
 Green v. Boston, etc., E, Co., ^18. 
 Green v. Cochran,, 392. 
 Green v. Hudson Biver E. Co., 81. 
 Green v. Lake, 604. 
 Green v. Nunnemacher, 485. 
 Green v. Pennsylvania E. Co., 220. 
 Green v. Bumsey, 264. 
 
TABLE OF CASES CITED. 
 
 709 
 
 The References are to Pages. 
 
 Green v. Savannah, 505. 
 
 Green v. Sperry, 61, 62. 
 
 Green D. TeHalr, 3U. 
 
 Green v. Bishop, 224. 
 
 Green v. Cole, 427. 
 
 Greenfield Bank v. Leavlt, 223. 
 
 Greenland v. Chaplin, 45. 
 
 Greenleaf v. Dubuque R. Co., 194. 
 
 Greenleatt!. Francis, 178. 
 
 Greenleaf v. Illinois etc. E. Co., 194, 368. 
 
 Greenlade v. Halliday, 517. 
 
 Greenwood v. Cobbey, 338. 
 
 Greenwood v. Greenwood, 278. 
 
 Greenwood v. Hornsey, 511. 
 
 Greer v. Tripp, 447. 
 
 Gregg V. Fitzhugh, 683. 
 
 Gregg V. Gregg, 611. 
 
 Gregory v. Atliins, 311. 
 
 Gregory v. Brooks, 145. * 
 
 Gregory v. Duke of Brunswick, 404. 
 
 Gregory v. Piper, 98. 
 
 Gregory's Admr. v. Ohio Eiver E. Co., 97. 
 
 Gribble v. Pioneer Press Co., 300,333. 
 
 Griel j». Lomax, 368. 
 
 Grles V. Zeck, 614. 
 
 Griffin v. Auburn, 552. 
 
 Griftiu V. Chubb, 396. 
 
 Gnfflu V. Coleman, 264. 
 
 Griffin V. Lawrence, 583. 
 
 Griffin v. Ohio & M. Ey Co., 153. 
 
 Griffin v. Eising, 148. 
 
 Griffin v. Shreveport & A. E. Co., 157. 
 
 Griffith V. Fowler, 414. 
 
 Griffith V. McCnUum, 516. 
 
 Griffiths V. London & St. Katherlne 
 
 Docks Co., 125. 
 Griffiths V. Wolfram, 84. 
 Grifford v. Carvell, 358. 
 Grigsby v. Clear Lake Water Co., 514. 
 Grigsby v. Stapleton, 370. 
 Grill B. Lomax, 358. 
 Grim v. Byrd, 358. 
 Grimes v. Coyle, 327. 
 Grimsby v. Hudnell, 243. 
 Grimshaw v. Belcher, 462. 
 Grlnham v. Willey, 266. 
 Grinnell v. Cook, 651. 
 Grinnell v. Wells, 281. 
 Groif V, Akenbrandt, 514. 
 Grogan v. Pope Iron etc. Co., 529. 
 Gronendyke v. Cramer, 464. 
 Gross V. McKee, 357. 
 
 Gross V. Pennsylvania P. & B. E. Co., 121. 
 Grotton v. Glidden, 186. 
 Grove v. Brandenburg, 329. 
 Grove v. Van Duyn, 138. 
 Groves v. Eochester, 70. 
 Grubb V. Suit, 666. 
 Grumon v. Eaymond. 264. 
 Grnmond v. Eaymond, 264. 
 Grund v. Van Vleck, 87. 
 Granellr. Wells, 280. 
 Guard v. Risk, 295, 311. 
 Guardian Soc. v. Koosevelt, 347. 
 Grudge v. Penland, 296. 
 Gadger v. Western etc, E. Co., 157. 
 Gnernsev v. Lowell, 263. 
 Guest V. Eeynolds, 24, 216. 
 Guggenheim v. Lake Shore etc. E. Co., 
 
 556. 
 GulUe V. Swan, 9, 39, 413, 423, 491. 
 Gulf, C. & S. F. Ey. Co. v. Johnson, 449. 
 Gulf, C. & S. F. Ey. Co. v. Montgomery, 
 
 633. 
 
 Gulf, C. & S. F. Tel. Co. „. Richardson, 
 
 55 
 Gulf & S. F. E. Co. V. Kirkland, 104. 
 Gulledge v. White, 468. 
 Gully V. Smith, 2p. 
 Gumsby v. Hankins, 120. 
 Gnuderson v. North Western Elevator 
 
 Co., i)83. 
 Gnnsalus v. Lormer, 422. 
 Guthrie v. Wickliffe, 658. 
 Gwlnell V. Earner, 531. 
 G. W. E. Co. of Canada v. Baird, 609 
 Gwynn v. Duffield, 26. 
 Gyre v. Culver, 201. 
 
 H. 
 
 Haack v. Fearing, 110. 
 
 Hablichtel v. Yambert, 402. 
 
 Hacke's Appeal, 522. 
 
 Hacket v. Lawrence, 263. 
 
 Hacket v. King, 265. 
 
 Hackney v. State, 485. 
 
 Hadlek v. Heywood, 273. 
 
 Hadley v. Baxendale, 31, 683, 685. 
 
 Hadley v. Cross, 615. 
 
 Hadley v. Importing Co., 369. 
 
 Hagan ». Chicago, etc. Ey. Co., 561. 
 
 Hagan v. Hendry, 305, 320. 
 
 Hagee v. Grossman, 375. 
 
 Hager v. Darforth, 471. 
 
 Haggerty v. Thompson, 514. 
 
 Hagood V. Elson, 442. 
 
 Halght V. Badgeley, 275. 
 
 Haight V. Cornell, 312. 
 
 Hailes v. Marks, 268. 
 
 Haines v. Campbell, 312, 313. 
 
 Haines v. Welling, 316. 
 
 Haire v. Eeese, 27. 
 
 Hake v. Bromes, 288. 
 
 Halbrook «. Ulica etc. E. Co., 545. 
 
 Halderoan v. Bruckhart, 178. 
 
 Hale V. Front, 683. , 
 
 Hale V. Johnson, 92. 
 
 Hale V. Lawrence, 199. 
 
 Halett V. Swift, 651. 
 
 Haley v. Keim, 119. 
 
 Haley v. Mobile & O. E. Co., 81. 
 
 Haley v. Eowan, 420. 
 
 Haley v. State, 305. 
 
 Hall V. Corcoran, 62. 
 
 Hall V. Fearnley, 172. 
 
 Hall V. Fond du Lac, 218. 
 
 Hall V. Galveston, etc., E. Co., 121. 
 
 Hall V. Hinks, 680. 
 
 Hall V. Hollander, 281. 
 
 Hall V. Eailroad Cos., 606. 
 
 Hall V. Suydam, 394, 396. 
 
 Hall V. Tounts, 114. 
 
 Halley, The, 97, 237, 240. 
 
 Halley v. Gregg, 294. 
 
 Halliday v. Holgate, 444. 
 
 HalUgan v. Chicago & E. I. E. Co., 422. 
 
 Hallock V. Hughes, 611. 
 
 Halloran v. Bray, 228. 
 
 Halls V. Thompson, 375. 
 
 Halaey v. Brotherhood, 389. 
 
 Halatead v. Nelson, 339. 
 
 Hambly v. Trott, 82, 83. 
 
 Hamford v. Kansas City, 70. 
 
 Hamilburgh v. Shephard, 395. 
 
 Hamilton v. Eno, 31S. 
 
710 
 
 TABLE OF CASES CITED. 
 
 Tlie References are to Pages. 
 
 Hamilton v. Ens, 331. 
 
 Hamilton v. Lomax, 278. 
 
 Hamilton v. Pandort, 607. 
 
 Hamilton v. Smith, 393. 
 
 Hamilton v. Texas etc. E. Cp., 627. 
 
 Hamilton v. Third Ave. R. Co., 223. 
 
 Hamilton v. Vioksburg etc. U. Co., IflB. 
 
 Hamilton v. Ward, 214. 
 
 Hamilton v. Williams, 133. 
 
 Hammersmith R. (;o. v. Brand, 155, 617. 
 
 Hammock v. White, 28, 546, 518. 
 
 Hammond v. Melton, 614. 
 
 Hammond v. Mukwa, 218. 
 
 Hammond v. N. E. U. Co., 656. 
 
 Hammond ». Town of Mukwa, 537. 
 
 Hampson v. Taylor, 43. 
 
 Hampton v. Jones, 394. 
 
 Hampton v. Wheeler, 448. 
 
 Hancock v. Gonez, 633. 
 
 Hancock v. Band, 642, 651. 
 
 Hancock v. Stephens, 312. 
 
 Hand v. Brooklme, 70. 
 
 Handy v. Foley, 64. 
 
 Haufrer v. Evins, 358. 
 
 Hankins v. New York, etc., R. Co., 120. 
 
 Hanna v. Grand Trunk Ry. Co., 239. 
 
 Hannan v. Gross, 248. 
 
 Hannem v. Pence, 591, 633. 
 
 Hannen v. Kdes, 256. 
 
 Hannibal etc. K. Co. v. Fox, 125. 
 
 Hannibal, etc. R. Co . v. Kenney, 610. 
 
 Haunon v. Grizzard, 148. 
 
 Hans V. Louisiana, 136. 
 
 Hansford v. Payne, 26. 
 
 Hanson v. Edgerly, 376. 
 
 Hanson v. MoCue, 178. 
 
 Harbach v. Des'Moines & K. C. Ry. Co., 
 
 244. 
 Harcourt v. Harrison, 291. 
 Harden burgh v. Lockwood, 611. 
 Harden v. Harshfleld, 316. 
 Harding v. Larned, 59. 
 Harding v. Sandy, 469. 
 Harding v. Weld, 59. 
 Hardman v. Booth, 681. 
 Hardy v. Metzgar, 414. 
 Hardy v. Munroe, 432. 
 Hargan v. I'urdy, 301. 
 Hargous v. Stone, 870. 
 l-largreaves v. Kimberly, 519. 
 Ilarkrudur v. Mooie, 393. 
 liai'lan v. Loganeport Nat. Gas. Co., 461. 
 Hurley v. MuriUl Brick Co., 629. 
 Ha/rnaa v. Johnson, 114. 
 Hai-nion v. Harmon, 463. 
 Uaiiier v. Fisher, 370. 
 Hariiketli u.Barr, 281. 
 JIarpel v. Curtis, 591. 
 Harpur v, Charlesworth, 451. 
 Harper v. Harper, 336. 
 Huriier v. Indianapolis & St. L. R. Co., 
 
 125. 
 IIar|>cr v. LnSkin, 279. 
 Uarriman v. Railway Co., 110. 
 Harrlman v. Stowe, 26, 84, 6iS. 
 Harrington v. Conimlssioners, 145. 
 Harris v. Bailey, 300. 
 Harris v. Briscu, 411. 
 Harris v. Cameron, S51. ' 
 Harris v. DePinna, 609, 911. 
 Harris v. Gilllngham, 464. 
 Harris v. Hlllman, 420. 
 Harris v. Harrington, 338. 
 Harris v. Harris, 243. 
 
 Harris v. MoNamar, 92. 
 
 Harris v. Minneapolis etc. R. Co., 567. 
 
 Harris v. Mobbs, 46, 491. 
 
 Harris v. Nicholas, 108. 
 
 Harris v. Perry, 627. 
 
 Hams V. Rand, 606. 
 
 Harris v. Ross, 243. 
 
 Harris v. Saunders, 439. 
 
 Harris v. Simon, 534. 
 
 Harris v. Terry, 204. 
 
 Harris v. Township of Clinton, 033. 
 
 Harris v. Zanoue, 305. 333. 
 
 Harrison v. Berkley, 42. 
 
 Harrison v. Bush, 339. 
 
 Harrison v. Collins, 92. 
 
 Harrison v, Denver etc. Ry. Co., I'.H, 
 
 Harrison v. Finley, 311. 
 
 Harrison v. Gull I, 472. 
 
 Harrison v. Harrison, 256. 
 
 Harrison v. MarshNll, 135. 
 
 Harrison v. Mitchell, 87. 
 
 Harrison v. Mosley, 81i 
 
 Harrison ».-<oathwark & Yauxhall Water 
 Co., 156, 496. 
 
 Harrison v. Wisdom, 199. 
 
 Harrap v. Hirst, 456, 490, 494, 508. 
 
 narrower v. Kitson, 516. 
 
 Hart V. Baxter, 828. . 
 
 Hart V. Evening News Assoc, 287. 
 
 Hart V. Gumpach, 331. 
 
 Hartti, Hudson River Bridge Co., 646. 
 
 Hart V. Mayor etc. of Albany, 481. 
 
 Hart®. New York P. D. C. Co., 122. 
 
 Hart V. Red Cedar, 69. 
 
 Hart V. Ryan, 92. 
 
 Hart V. Skinner, 443. 
 
 Hart V. Wall, 313. 
 
 Hart V. Wright, 370. 
 
 Hartfield v. Roper, 61, 585. 
 
 Hartford v. Brady, 476. 
 
 Hartley v. Cummlngs, 275. 
 
 Hartmun v. Flaheriy, 358. 
 
 Haitshorn v. Chaddock, 217i 
 
 Hartshorn v. Inhabitants of South Read- 
 ing, 489. 
 
 Hartshorne v. Kiernan, 472. 
 
 Hartsock v. Reddick, 328. 
 
 Hartwig v. Bav/btate S. & L. Co., 91. 
 
 Hartwig V. Chicago & N. W. Ky. Co., 558. 
 
 Harvey v. Brydgcs, 463. 
 
 Harvard v. Delaware & H. C. Co., 121. 
 
 Harvey v. Dewoody, 514. 
 
 Harvey ». Dnnlap, 167. 
 
 llarvey v. Epes, 443. 
 
 Harvey v. Harvey, 472. 
 
 Harwood v. Keeoh, 321. 
 
 Haiwood V. Slphcrs, 264, 265. 
 
 Harwood v. Tompkins, 33. 
 
 Haskell v. Shurston, 224. 
 
 Haskell v. Starbird, 388. 
 
 llaskins V. Lumsden, 316. 
 
 HasUins v. N. N. & H. R. R. Co., 116. 
 
 llaskins v. Koyster, 216, 673. 
 
 Haskins v. Stewart, 164. 
 
 llaskins v. Utah Northern Ry. Co., 545. 
 
 Hass V. Philadelphia, etc.. Steamship 
 Co., 92. 
 
 Hassenger v. Railroad Co., 584. 
 
 Hastings v. Aiken, 505. 
 
 Hastings v. Llvermore, 9. 
 
 Hastings v. Lush, 328, 329, 881. 
 *HaStiugB V. Stetson, 292, 316, 333. 
 
 Hasty V. Sears, 117. 
 
 Hatch V. Cohen, 395. 
 
TABLE OF CASES CITED. 
 
 711 
 
 The References are to Pages. 
 
 Hatch V. Donnell, 10, 213, 422. 
 
 Hatch V. Dwlght, 818. 
 
 Hatch V. Fuller, 281. 
 
 Hatch V. Patten, 306. 
 
 Hatch V. FendeTgaat, 33. 
 
 Hatch V. Potter, 305. 
 
 Hatch V. Vermont Cent. E. Co., 157. 
 
 Hatchard v. Mege, 76. 
 
 Hatcher v. Hampton, 482. 
 
 Hatfield v. Towsley, 138. 
 
 Hathaway v. East Tennessee, etc. R. Co., 
 
 644, 562. 
 Hathaway v. Eice, 149. 
 Hathorn v. Congress Spring Co., 324. 
 Hathorn v. Richmond, 27. 
 Hanck v. Tide Water Pipe Line Co., 492. 
 Hangh's Appeal, SOS. 
 Hanae v. State, 251. 
 Haass v. Kohlar, 264. 
 Haven v. Neal, 353. . 
 Havens v. Hartford, etc. B. Co., 656. 
 Haverstick v. Sipe. 509. 
 Haw V. Ridgway, 260. 
 Hawes V. Knowles, 33. 
 Hawk V. Harman, 64. 
 Hawk V. Thorn, 658. 
 Hawkins u. Globe Printing Co., 324. 
 Hawkins v. Pembcrton, 351. 
 Hawkins v. State, 280. 
 Hawks V. Evans, 328. 
 Hawks V. Locke, 370, 503. 
 Hawksworth v. Thompson, 84. 
 Hawley v. Clowes, 226. 
 Hawn V. Baughart, 276, 281. 
 Haws V. Burlington, etc. Ey. Co., 546. 
 Hawver ». Whalen, 87. 
 Hay V. echoes Co.. 502, 615. 
 Hay V. Eeid, 325, 338. 
 Haycrafti;. Creasy, 859. 
 Hayden v. Mannfactaring Co., 117. 
 Haydens. Shed, 399. "^ 
 
 Hayes v. Askew, 519. 
 Hayes v. Leland, 316. 
 Hayes v. Michigan Cent. R. Co., 24, 47, 
 
 545. 
 Hayes v. Mitchell, 260. 
 Hayes V. Parker, 60. 
 Hayes v. Yonnglove, 393. 
 Haymen v. Governors ol Eugby School, 
 
 148. 
 Hayn ». Cnlliford, 630. 
 Hayner v. Cowden, 301. 
 Haynes v. Nowlen, 272. 
 Haynes v. State, 256. 
 Hays V. Borders, 278. 
 Hays V. Brierly, 313. 
 Hays V. Creary, 264. 
 Hays V. Gainsville St. B. Co., 99. 
 Hays V. Hays, 311. 
 Hays V. Kennedy, 600. 
 Hays V. Mllier, 99. 
 Hays V. Mitchell, 295. 
 Hays V. Sinclair, 281. 
 Haythorn v. Eashforth, 424. 
 Hayward v. Merrill, 667. 
 Haywood & Co. v. Haywood & Son, 341. 
 Hazard v. Irwin, 349, 351, 354. 
 Hazard Powder Co. v. Volger, 496, 497, 
 
 503. 
 Hazel V. Clark, 201, 256. 
 Hazel V. Peoples' Pass. Ey. Co., 546. 
 Hazelton ». Week, 9. 
 Hazen v. Boston etc. Co., 167. 
 Headen v. East, 610. 
 
 Heald v. Carey, 439. 
 
 Healey v. Gregg, 295. 
 
 Hianey v. Butte & M. 0. Co., 483. 
 
 Heath v. Cottenbach, 611. 
 
 Heaih v. Bicker, 611, 
 
 Heaven v. Pender, 534, 535, 623, 628. 
 
 Heazle v. Railroad Co., 606. 
 
 Hebcrt v. Lege, 449. 
 
 Heckle v, Lurvey, 64. 
 
 Hedden v. Griffin, 648. 
 
 Hedges v. Tagg, 280. 
 
 Hedley u. Pinkney and Sons' S. S. Co., 
 
 125. 
 Heeg V. Llcht, 503. 
 Heeney v. Spragne, 24. 
 Heenrlch v. Pullman, etc., Co., 104. 
 Heermance v. Verooy, 469. 
 Heiferen v. Northern P. E. Co., 117. 
 Heiferman v. Benkard, 94. 
 Heflin v. Slay, 432. 
 Heil V. Glandlng, 223. 
 Heim v. MoCaugham, 114, 656. < 
 Heimstreet v, Howland, 530. 
 Heine v. Chicago & N. W. E. Co., 122. 
 Heineman v. Heard, 26, 683. 
 Helnricks v. Kenchner, 279. 
 Hei^r v. Kingtiland etc. Co., 534. 
 Hellams v. Switzer, 528. , 
 
 Heller v. City o( Alvarado, 234. 
 Helsham v. Blackwood, 327. 
 Hemnor v. Cooper, 368. 
 Hempstead v. Gargill, 244. 
 Henchman v. Patterson etc. E. Co., 528, 
 Hendershott v. Ottumwa, 70. 
 Henderson v. Fox, 324, 345. 
 Henderson v. Grewell, 466. 
 Henderson v. Railroad Co., 116, 199, 3S4. 
 Henderson v. Sullivan, 2118. 
 Hendrick v. Lindsay, 675. 
 Hendricks v, Montagu. 392. 
 Hendrickson v. Kingsbury, 235. 
 Hendrickson v. Sullivan, 294. 
 Henkel v. Mnrr, 627. 
 Henley v. Eobb, 243. 
 Hennessey v. Carmony, 522. 
 HenniDg v. Ball, 151. 
 Henry v. Dennis, 29,615. 
 Henry v. Klopfer, 564. 
 Henry v. Southern Pacific E. Co., 42. 
 Henwood v. Harrison, 319. 
 Hepburn v. Lordan, 523. 
 Herdic ». Young, 218. 
 Heritage v. Dodge, 149. 
 Hermann v. Bradstreet Co., 295, ,334. 
 Herman v. Cundiif, 296. 
 Hermann Lorg v. Beam, 226. 
 Herrick v. Lapham, 291. 
 Herrick v. Winn, 239. 
 Herring v. State, 260. 
 Herron v. Hughes, 442. 
 Hershberger v. Lynch, 545. 
 Herzog v. Graham, 262. 
 Hess V. Culver, 381. 
 Hess V. Fookler, 311. 
 Hess V. Johnson, 144. 
 Hess V. Sparks, 296. 
 Hesse v. Knippel, 27. 
 Hessenyerv. Michigan Cent. E., 540. 
 Hetfleld v. Central E. Co., 459. 
 Hetherington v. N. B. E. Co., 79. 
 Hewes ». Platts, 4,34. 
 Hewey v. Nourse, 503. 
 Hewlt V. Mason, 299. 
 Hewitt V. Isham, 463. 
 
712 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Hewitt V. Newburger, 266. 
 
 Hewitt V. Pioneer Press Co., 67 
 
 Hewitt V. Prime, 278. 
 
 Hewitt V. Smi'tli, 87. 
 
 Hewitt V. Swift, 84. 
 
 Hexamer v. Weber, 92. 
 
 Heygood v. Tlie State, 91. 
 
 Heyne v. Blair, 392. 
 
 Heywood v. Tillson, 33, 153. 
 
 Hlbbard v. W. U. Tel. Co., 214. 
 
 Mickey v. Merchants & M. T. Co., 91. 
 
 Hickey v. Michigan C. B. Co., 516. 
 
 Hlokey o. Grosiean, 312. 
 
 Hickman v. Hickman, 245. 
 
 Hickman v. Mackey, 125. 
 
 Hicks V. Dorn, 141. 
 
 Hicks V. Stevens^ 362. 
 
 Higbee v. Bice, 448. 
 
 Higginbotham v. State, 250. 
 
 Higgins V. Dewey, 603, 616. . 
 
 Higgins V. Glens Falls, 70. 
 
 Higgins o. McCabe, 27. 
 
 Higgins V. Minaghan, 204. 
 
 Higgins V. "Watervliet Turnpike Co., 104, 
 
 105. 
 Higginson v. York, 9, 412. 
 Htggs V. Smith, 349. 
 High V. Berrett, 352. 
 Hight V. Bacon, 632. 
 Hildebrand v. McCrnm, 260. 
 Hill V. Bigge, 136. 
 Hill V. Brower, 358. 
 Hill V. Bnsh, 352. 
 Hill V. Carley, 376. 
 Hill V. Davis, 658. 
 Hill V. Haynes, 262. 
 Hill V. New Elver Co., 46, 54. 
 Hill V. Palm, 395. 
 Hill ». Sogers, 201. 
 Hill V. Sturgeon, 606. 
 Hill V. Taylor, 260, 267. 
 Hill V. Windsor, 37, 42. 
 Hillhouse v. Dunning, 287. 
 Hillhouse ». Peck, 294. 
 Hilliard v. Richardson, 92, 94. 
 Hillman v. Wilcox, 351. 
 Hilts V. Chicago & G. T. R. Co., 1-25. " 
 Hinchman v. Patterson, etc. K. Co., 480. 
 Hinchman v. Railroad Co., 528. 
 Hinckley v. Cape Cod E. Co., 547. 
 Hinckley v. Emerson, 202. 
 Hinds V. Duenaeker, 84. 
 Hinds V. Harbon, 84. 
 Hinds V. Jones, 64. 
 Hlne V. Cushing, 21& 
 Hine v. Wooding, 610. 
 Hinkle v. Davenport, 315. 
 Hinkle V. State, 149. 
 Hintz V. 6rupner,'333. 
 Hinz V. Starn, 667. 
 Hiort V. Bolt, 413, 432, 435. 
 Hiort V. L. & N. W. E. Co., 437. 
 Hitcbcock V. Burget, 27. 
 Hitchins v. Frostburg, 69. 
 Hitle V. Republican Valley E. To., 92. 
 Hoadley v. Nor. Transp. Co., 5J. 
 Hoadley v. Watson, 235. 
 Hoag II. Hatch, 294. 
 Hoag V. Eailroad, 29, 42, 60, 574. 
 Hoar V. Merritt, 120. 
 Hoar V. Wood, 328, 329. 
 Hobart v. Haggett, 412, 423. 
 Hobbs V. Parker, 350. 
 Hobbs V. Bay, 266. 
 
 Hobeon v. Fnllerton, 279. 
 
 Hobson V. New Mexico & A. E. Co., 121, 
 
 675. 
 Hockstedler v. Dubuque & S. C. By. Co., 
 
 661. 
 Hocum V. Weitherick, 569. 
 Hodges V. Hodges, 529. 
 Hoi V. Sanborn, 370, 632. 
 Hoff V. West Jersey E. Co ., 504, 562. 
 Hoffman v. Carow, 439, 454. 
 Hoffman v. New York, etc., E. Co., 104, 
 
 JOS. 
 Hoffman v. Kemerer, 281. 
 Hotnagle v. New York. C. & H. R. R. Co., 
 
 122. 
 Hogan V. Cregan, 281. 
 Hogan V. Hendry, 323. 
 Hogan V. Wolf, 244. 
 Hogg V. Dorrah. 302.. 
 Hogg V. Ward, 263. 
 Hoggott V. Blgley, 145. 
 Hogue V. Penn, 144. 
 Holbrook v. Connor, 357, 358. 
 Holbrook v. The Utica, etc. R. Co., 636. 
 Uolcomb V. Noble, 349, 353. 
 Holden v. Fitchburg E. Co., 119,568. 
 Holdeu V. Sbattuck, 611. 
 Hole V. Barlow, 602. 
 Holford V. Bailey, 453, 457. 
 Holiday v. Jackson, 4U3. 
 HoUey v. Mix, 263. 
 Holliday v. Kennard, 26. 
 Hollingsworth v. Shaw, 294. 
 HoUins V. Fowler, 10, 413, 435, 436, 439, 
 
 440, 682. 
 Hollis V. Meux, 328, 329. 
 HoUis V. Wells, 279. 
 Hollister v. Nowlen, 606. 
 HoUock V. Dominey, 263. 
 Holly V. Boston Gas Light Co., 583, 620. 
 Holmes V. Atchison, etc., B. Co., 537. 
 Holmes v. Drew, 537. 
 Holmes v. Harrington, 37. 
 Holmes i>. Holmes, etc. Co., 184. 
 Holmes v. Jones, 323, 346. 
 Holmes v. Mather, 28, 161, 172, 192, 198,604. 
 Holmes v. N. K. B. Co., 628. 
 Holmes v. Wakefield, 104. 
 Holmes v. Wilson, 469. 
 Holsman v. Boiling Spring Bleaching 
 
 Co., 492. 
 Holsou V. Perry, 202. 
 Holt V. Turpin, 296. 
 Holton V. Muzzy, 324. 
 Holton V. Noble, 357. 
 Holtzman v. Uoy, 27. 
 Holzab V. Railroad Co., 349. 
 Home Ins. Co. v. Pennsylvania R. Co., 
 
 662. 
 Homer v. Illinois, etc., E. Co., 117. 
 Homer v. Thriving, 62, 443. 
 Honsee v. Hammond, 213. 
 Honywood v. Uonywood, 430. 
 Hood M. N. Y. & N. H. E. Co., 67. 
 Hooker v. Miller, 206. 
 Hoopers. Smith, 141. 
 Hoosler Stone Co. v. McCain, 192. 
 Hoover v. Peters, 370. 
 Hope V. Evered, 266. 
 Hopkins ti. G. N. E. Co., 457. 
 Hopkins V. Mathias, 276. 
 Hopkins V. Western Pao. E. Co., 619. 
 Uopner v. McDowan, 261. 
 Horback v. Elder, 232. 
 
TABLE OF CASES CITED. 
 
 713 
 
 The References are to Pages. 
 
 Home V. Midland, 6S3, 684. 
 
 Home V. Paail, 140. 
 
 Homer v. Harney, 642. 
 
 Homer v. Lawrence, 648. 
 
 Harnketh v. Barr, 278. 
 
 UoTselyv. liraucli, 535. 
 
 Horsfall v. Thomas, 377. 
 
 Hoiton V. Payne, 64. 
 
 Hosack V. Weaver, 414. 
 
 Hosmer v. DeYoung, 136. 
 
 Hotchkiss V. Oliphant, 295. 
 
 Hotchkisa i\ Porter, 333. 
 
 Hotchkys, Re, 428. 
 
 Hoth V. Peters, 122. 
 
 Hongh V. Kailroad Co., 117, 124, 194, 569. 
 
 Houghtaling v. Hills, 369. 
 
 Houlden v. Smith, 139. 
 
 Houlsworth v. City of Glasgow Bank, 
 
 113, 3S7. ^ 
 
 House V. House, 297. 
 Honser v. Chicago, etc. R. Co., 193. 
 Houston T. Laffe, 459. 
 Hoastoa <Sb T. C. Ry. Co. v. Simpson, oSi. 
 Honston, etc., R. Co. v. Boehm, 218. 
 Houston, etc., R. Co. v. Burke, 218. 
 Houston, etc., R. Co. v. Cowser, 82. 
 Houston, etc. R. Co. ■;;. Fowler, 193. 
 Houston, etc. R. Co. v. Marcelles, 124. 
 Honston, etc. E. Co. v. Meyers, 193. 
 Houston, etc., R. v. Smith, 651. 
 Honston, etc., R. Co. v. Terry, 24. 
 Houston Water Works Co. r. Kennedy, 
 
 244. 
 Houx V. Seat, 464. 
 Hover v. Barkhofl, 24. 
 Hovsier Stone Co. v. McCain, 63-J. 
 How V. Searing, 459. 
 Howard v. Grover, 26. 
 Howard v. Kansas City, etc. R. Co., 567. 
 Howard v. Lee, 485, 505. 
 Howard v. Sexton, 339. 
 Howard v. Shepherd, 667. 
 Howard v. Thompson, 339. 
 Howard Oil Co. v. Davis, 218. 
 Howe Machine Co. v. Sowder, 'iT. 
 Howe V. Newmarch, 99. 
 Howell V. Edwards, 395. 
 Howell V. McCoy, 492. 
 Howes V. Ashfleld, 518. 
 Howk V. Mlnnick, 234. 
 Howland v. Day, 201, a56. 
 Howland Blake v. Mfg. Co., 322. 
 Hewlett V. Tattles, 234. 
 Hoyt V. Hudson, 544. 
 Hoyt V. Jeffers, 44, 153. 
 Hoyt V. Macon, 399. 
 Hubbard v. Lord, 142. 
 Hubbard v. Mason City, 576. 
 Hubbard v. Rutledge, 336. 
 Hubbard v. Town, 509. 
 Hubbard v. Wearc, 353. 
 Habbell v. City of Viroqua, 531. 
 Hubbell ». Meigs, 351. 
 Hubble V. Forgartle, 63. 
 Hnber v. Steiner, 241. 
 Huchtlng V. Engel, 61. 
 Huckle V. Money, 220. 
 Hndkins v. Haskins, 277. 
 Hudson V. Garner, 305, 311. 
 Hudson V. Houser, 534. 
 Hudson V. State, 275. 
 Huff V. Ames, 585. 
 Huff V. Ford, 91. 
 Huff V. MoCauley, 462. 
 
 Huff V. Watkins, 275. 
 
 Huffman v. Chicago etc. R. Co., 125. 
 
 Hugh V. New Orleans, etc., R. Co., 81. 
 
 Hughes V. Fagln, 120. 
 
 Hughes V. Macfle, 582. 
 
 Hughes V. Perclval, 639. 
 
 Hughes V. Robertson, 369. 
 
 Hughes V. Stevens, 468. 
 
 Huliag V. Bnling, 272. 
 
 Hull V. Fields, 376. 
 
 Hull V. Sac. Val. R. Co., 504. 
 
 Hallehan v. Green Boy etc. R. Co., 125. 
 
 Hulme V. Shreve, 225. 
 
 Humphrey v. Douglass, 61. 
 
 Humphrey v. Merriam, 354. 
 
 Humphries v. Cousins, 603. 
 
 Humphreys v, Parker, 305, 345. 
 
 Hunckell v. Vonliff, ^9. - 
 
 Hunt V. Hoyt, 634. ■ 
 
 Hunt V. Lowell Gas Light Co., 505. 
 
 Hunt W.Rich, 449.. 
 
 Hunt V. Somonds, 182. 
 
 Hunter v. Farren, 423, 502. 
 
 Hunter v. Mathis, 145. 
 
 Hunter v. McLaughlin, 358. 
 
 Huntoon v. Hazleton, 276. 
 
 Hurd V. Rutland, etc. E. Co., 611. 
 
 Hurdman v. N. E. R. Co., 179, 603. 
 
 Hulbnrt v. McKone. 506. 
 
 Hurlbut V. Boax, 396. 
 
 Hnrlbut v. McCone, 504. 
 
 Hurst o. Taylor, 635. 
 
 Hase V. Inter-Ocean Co., 287. 
 
 Hnson v. Dale, 315, 334. 
 
 Hussey v. Coger, 123. 
 
 Hussey v. King, 67. 
 
 Hussey v. Norfolk, So. R. Co., 68. 
 
 Hussner v. Brooklyn City R. Co., 4S5. 
 
 Hutcheson v. Peck, 271. 
 
 Hutching v. Engel, 61. 
 
 Hutchins v. Hutchins, 402, 405. 
 
 Hutchins v. Ladd, 683. 
 
 Hutchins v. Smith, 506, 578. 
 
 Hutchinson J). Boston Gas-Light Co., 620. 
 
 Hutchinson v. Chase, 448. 
 
 Hutchinson v. Lewis, 329. 
 
 Hutchinson v. Olympia, 70. ' 
 
 Hutchinson v. Wheeler, 324. 
 
 Huyett V. Phila. etc. , E. Co. , 504, 562. 
 
 Hyams v. Webster, 85. 
 
 Hyatt V. Adams, 81. 
 
 Hyatt «. Myers, 506. 
 
 Hyatt«. Wood, 466. 
 
 Hyde v. Graham, 460, 464. 
 
 Hyde v. Grench, 395. 
 
 Hyde v. McCabe, 322. 
 
 Hydraulic Engineering Co., 684. 
 
 Hyland v. Sherman, 370. 
 
 Hyman v. Nye, 632. 
 
 I. & G. N. Ry. Co. V. Smith, 565. 
 
 Ibbotson V. Peat, 408. 
 
 Illinois Cent. R. Co. v. Allen, 185. 
 
 Illinois Coal Co. v. Cobb, 468. 
 
 Illinois Cent. R. Co. v. Graball, 506, 519. 
 
 Illinois Cent. R. Co. v. McCleland, 604. 
 
 Illinois Cent. R. Co. v. Fendei'grass, 81. 
 
 Illinois Cent. R. Co. v. Boss, 97. 
 
 Illinois Cent. E. Co. v. Sheehan, 105. 
 
 Illinois Cent. E. Co. v. Smith, 105. 
 
714 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Illinois Cent. R. Co. v. Sutton, 55. 
 
 Illinois, etc. B. Co. v. Cobu, 46t;. 
 
 Illinois, etc. R. Co. v. Cox, 117. 
 
 Illinois Cential, etc. Co. v. Uragin, 82, 
 576. 
 
 Illinois Cent, etc., Co v. Crudap, 82. 
 
 Illinois K. Co. v. Grabbe, 64. 
 
 Ilott V. Wilkes, 191. . 
 
 llmeru. City of Springfield, 70. 
 
 Ilsey u. Nichols, 471. 
 
 Ilwaco By. & Kav. Co. v. Hediick, 552, 
 585. 
 
 Incbbald v. Barrington, 506. 
 
 Indermaur v. Dames. 625. 
 
 Inderwick v. Snell, 147. 
 
 Indiana etc. K. Co. v. Greene, 568. 
 
 Indiana Mfg. Co. v. Millicau, 125. 
 
 Indianapolis v. Emmelmann, 69. 
 > Indianapolis etc. R. Co. v, Flanagan, 192. 
 
 Indianapolis etc. R. Co. v. Horst, 546, 
 
 669. 
 Indianapolis, etc., R. Cas. Co. v. Morgen- 
 
 stem, ll». 
 Indianapolis etc. R. Co. v. Faramore, 
 
 662. 
 Indianapolis, etc., R. Co. v. Stables, 55. 
 Indianapolis etc. B. Co. v. Stout, 567. 
 Inillanapolis, etc. R. Co. v. Toy, 193. 
 Indianapolis Journal Nwp. Co. v. Pugb, 
 
 278. 
 Indianapolis Nat. Gas Co. v. Klbby, 224. 
 Indianapolis Sun v. Horreliy, 305. 
 Indianapulis Union By. Co. v. Boettcber, 
 
 534. 
 Indianapolis Water Co. u. Am. Straw- 
 board Co., 522. 
 IngaKs V. Buckley, 435. 
 lugalls V. Miller, 376. 
 Ingalsbee v. Wood, 651. 
 IngersoU v. Jones, 278, 281. 
 Inland & Seaboard Coasting Co. v. Fol- 
 
 son, 667. 
 Ingrabam v. Jordan, 376. 
 Inman v. Foster, 316. 
 Innes v. Wylle, 254. 
 Insurance Co. v. Brarae, 81. 
 Insurance Co. v. Reed, 360. 
 International &G. N. R. Co. v. Ryan, 120. 
 International, etc., B. Co. v. Uolloreu, 
 
 605. 
 Interstate Commerce Commission v. 
 
 Bait. & C. R. Co., 651. 
 Iron Age Pub. Co. v. Crudnp, 294, 295. 
 Iron Co. V. Brawley, 685. 
 Iron Mountain Bauk v. Mercantile 
 
 Bank, 68. 
 Iron Mountain R. Co. v. Bingham, 157. 
 Iron B. Co. v. Mowery, 667, 637. 
 Iron Works v. Moore, 351. 
 Irons V. Fields, 299. 
 Irwin V. Dearman, 281. 
 Irwin t>. Scribner, 230. 
 Irvine v. Wood, 624. 
 Isaacs V. Herman, 658. 
 Isaacson v. New York, etc., B. Co., 104. 
 Ivay V. Hedges, 641. 
 Ives 17. Ives, 466. 
 
 Jackman v. Arlington Mills, 492. 
 Jackson v. Adams, 2U7. 
 Jackson v, Babcock, 464. 
 
 Jackson ». Chicago & N. W. R. Co., 662. 
 Jackson v. Kirby, 63. 
 Jackson v. Linnlngton, 395. 
 Jackson v. Rounseville, 456.- 
 Jackson v. Bntland, etc. R. Co., 611, 
 Jackson v. St. Louis etc. R. Co., 228. 
 
 Jackson v. Walsh, 469. 
 
 Jackson v. Wood, 312. 
 
 Jackson & Sharp Co. v. Philadelphia, 
 etc., R. Co., 462. 
 
 Jacksonville JotTrnal Co. v. Beymer, 312. 
 
 Jacksonville T. & K. W. Ry. Co. v. Penin- 
 sular Land, etc., Co., 33, 37, 661, 591. 
 
 Jacobs V. Andrew, 50;). 
 
 Jacobs V. Pollard, 231. 
 
 Jacobs V. Seward, 447. 
 
 Jacques v. Great Falls Mfg. Co., 120. 
 
 Jagar v. Winslow, 360. 
 
 James v. Campbell, 171. 
 
 James v. Dixon, 483. 
 
 James v. Emmet Mining Co., 121. 
 
 James v. Hodsden,376. 
 
 James v. James, 674. 
 
 Jameson v. Milliman, 4119. 
 
 Jamison v. Moseley, 256. 
 
 Jardan ». Wells, 125. 
 
 Jardine v. Cornell, 105. 
 
 Jarnigan v. Fleming, 315, 323. 
 
 JaiTett V. Gwathmey, 142. 
 
 Jarvis v. Haiheway, 338, 339. 
 
 Jarvis V. St. Louis, etc. K. Co., 506. 
 
 Josselyn v. McAllister, 394. 
 
 Jay V. Almy, 151. 
 
 Jazan v. Foulmin, 369. 
 
 Jean ». Sandiford, 611. 
 
 Jefoott V. Knott, 447, 519. 
 
 JefFeries v. Hargus, 9. 
 
 Jeffries v. Phila. etc., E. Co., 504, 562. 
 Jefferson v. Chapman, 69. 
 Jeffersonville, etc. B. Co. v. Bowen, ,iS3. 
 Jeffersonville, etc., E. Co. v. Hendricks. 
 
 82. 
 Jeffersonville, etc., B. Co. v. Riley, 37,537. 
 Jeffersonville R. Co. v. Rogers, 104. 
 Jeffrey v. Bigelow, 370, 503. 
 Jeffrey v. Keokuk, etc K. Co., 567. 
 Jeffries v. Ankenny, 148. 
 Jeffries v. G. W. E. Co., 451. 
 Jefts V. York, 659. 
 Jellison v. Goodwin, 333. 
 Jenkins v. Fowler, 33. 
 Jenkins v. Lykes, 463. 
 Jenkins v. ftlahopac Iron Ore Co., 122. 
 Jenkins v. AVaidron, 148. ' 
 Jenks V. Williams, 33. 
 Jenne v. Sutton, 503, 615. 
 Jenner v. A' Beckett, 322. 
 Jennings v. Gibson, 420. 
 Jennings v. Bundall, 61, 653. 
 Jenoure v. Delmege, S3J, 345. 
 Jewell V. Colby, 59. 
 Jewell V. Mahood, 479, 640. 
 Jewett V. Carter, 383. 
 Jewett V. Whitney, 214. 
 Jex V. Straus, 30. 
 Joannes v. Bennett, 335. 
 Joanues v. Bart, 299. 
 Job V. Harlam, 614. 
 Job V. Potton, 428, 449. 
 Joel V. Morison, 101. 
 John V. Bacon, 625. 
 
 John Manat Lumber Co. v. Wilmore, 617. 
 Johns V. Marsh, 393. 
 Johns «. Press Pub. Co., 343. 
 
TABLE OF CASES CITED. 
 
 715 
 
 The References are to Passes. 
 
 Johnson, The H. G., 630. 
 
 Johnson v. Ashland Water Works Co., 
 
 126. 
 Johnson v. Barber, 84, 110, 112, 383, 503. 
 Johnson v. Bonton, 33, 265. 
 Johnson v. Brown, 316. 
 Johnson v. Braner, 552. 
 Johnson v. Chicago, etc., E. Co., 33. 
 Johnson v. City ot Boston, 124. 
 Johnson v. Dist. of Columbia, 145. 
 Johnson v. Ebberts, 393. 
 Johnson v. Emerson, 400. 
 Johnson v. Farr, 434. 
 Johnson v. Hanahan, 466. 
 Johnson v. Hudson K. It. Co., 546. 
 Johnson v. Lane, and Yorkshire R. Co., 
 
 445. 
 Johnson v. Lindsay, 96, 126. 
 Johnson ». McGonnell, 252." 
 Johnson v. Mcllwain, 449. 
 Johnson v. Missouri Pac. K. Co., 544, 557. 
 Johnson v. Monell, 357. 
 Johnson v. Morrow, 294. 
 Johnson v. Netherland A. S. N. Co., 122. 
 Johnson v. Patterson, 202. 
 Johnson v. Perry, 204. 
 Johnson v. Pie, 61, 66. 
 Johnson v. Powers, 434. 
 Johnson v. Reed, 399. 
 Johnson v. Robertson, 306. 
 Johnson v. Roe, 245. 
 Johnson v. Shields, 295, 296. 
 Johnson v. Simnnton, 304. 
 Johnson v- Skillman, 459. 
 Johnson v. Smith, 384, 660. 
 Johnson v. State, 248, 249, 250, 258. 
 Johnson v. Stear, 444. 
 Johnson v. Stebbins, 316, 324. 
 Johnson v, St. Louis Dispatch Co., 67, 
 
 316. 
 Johnson v. The Arabia, 443. 
 Johnson v. The Bradstreet Co., 336. 
 Johnson v. Thompson, 260. 
 Johnson v. Torpy, 231. 
 Johnson v. Yon Kettler, 264. 
 Johnson v. Weedman, 443. 
 Johnston v. Disbrow, 273, 281. 
 Johnston v. Lance, 316. - 
 Johnston v. Louisville, 228. 
 Johnstone v. Sutton, 144. 
 Joiner v. Ocean Steamship Co., 262, 393. 
 Joliet V. Harwood, 69. 
 Joliet, City of, v. Conway, 218. 
 Joliet S. S. Co. V. Yeaton, 630. 
 Jones V. Angell, 27. 
 Jones V. Bird, 542, 
 Jones V. Blocker, 673. 
 Jones V. Boyce, 693, 595. 
 Jones V. Brown, 145. 
 Jones V. Chapman, 315. 
 Jones V. Chappell, 428, 492, 528. 
 Jones V, Christian, 680. 
 Jones V. Cohen, 448. 
 Jones V. Corporation of Liverpool, 95. 
 Jones V. Diver, 301. 
 Jones V. Erie & W. T. R. Co., 156. 
 Jones V. Festinoig R. Co., 617. 
 Jones V. Foley, 466. 
 Jones V. Gale, 186, 201, 206. 
 Jones V. Gooday, 227. 
 Jones V. Greeley, 325, 345. 
 Jones V, Hoar, 658. 
 Jones V. Housh, 439. 
 Jones V. Jenkins, 392. 
 
 Jones u. Jennings, 211. 
 
 Jones v. Jones, 33, 392, 396. 
 
 Jones V. Lake Shore, etc. R. Co., 194. 
 
 Jones V. Morris, 432. 
 
 Jones V. Powell, 500. 
 
 Jones V, Richmond, 476. 
 
 Jones V. Sherwood, 614. 
 
 Jones V. Stanton, 447. 
 
 Jon^s V. Starly, 673. 
 
 Jones V. St. Louis etc. Ey. Co., 1.57. 
 
 Jonesu. St. Louis N. & P. Packet Co., 97. 
 
 Jones V. Townsend, 324. 
 
 Jones V. Utioa & B. R. R. Co., 584. 
 
 Jones V. Van Doren, 246. 
 
 Jones V. Witherspoon. 610. 
 
 Jordan v. Alabama, etc.. R. Co., 67. 
 
 Jordan v, G. S. R. Co. v. Erlske, 394. 
 
 Jordan v. Pickett, 369. 
 
 Jordan v. Wyatt, 9. 
 
 Jordan v. Crump, 203. 
 
 Joslin V. Grand Rapids Ice Co., 94. 
 
 Josselyn v. McAllister, 263. 
 
 Juchterv. Boehm,400. 
 
 Judd V. Fargo, 634. 
 
 Jiilbec S. S. Co. V. Merchant, 120. 
 
 Jangv. City of Stevens Point, 574, 
 
 Jung V. Neraz, 603. 
 
 Junkins v. Simpson, 369. 
 
 K. 
 
 K V. H , 307. 
 
 Kahl V, Love, 30. 
 
 Kalbusv: Abbott, 534. 
 
 Kalis V. Shattuck, 624. 
 
 Kammell v, Basselt, 144. 
 
 Kamerick?;. Castlemnn, 9. 
 
 Eanakee v. Linden, TO, 
 
 Kane v. Hibernia Ins. Co., 325, 545. 
 
 Kane v. N. Central R. Co., 696. 
 
 Kankakee v. Kankakee etc. R. Co., 225. 
 
 Kansas City, etc., E. Co. v. Cook, 217. 
 
 Kansas City, etc., R. Co. v. Kelley, 104, 
 105. 
 
 Kansas City, etc. E. Co. v. St. Joseph 
 Terminal R. Co., In6. 
 
 Kansas City M. & B. R. Co. v. Burton , 123. 
 
 Kansas City K. etc. Co. v. Stoni'r, 537, 649 
 
 Kansas, etc. R. Co. v. Butts, 562. 
 
 Kansas N. & D. Ry. Co. v. Mahler, 156. 
 
 Kansas, Pao. R. Co. v. Cntter, 82. 
 Kansas Fac. R. Co. v. Richardson, 552. 
 
 Kansas Pac. E. Co. v. Whipple, 585. 
 
 Karr v. Parks, 589. 
 
 Kaspari v. Marsh, 537. 
 
 Kauch V. Blinn,299. 
 
 Kanfmanu v. United States Nat. Bank, 
 
 675. 
 Kavanaugh v. Barber, 527. 
 Kavanuugh v. Janesville. 271. 
 Kay V, Railroad Co. 463, 584. 
 Kean v. McLaughlin, 328. 
 Kearney v. Boston & W. R. Corp., 80. 
 Kearney v. London, Brighton & South 
 
 Coast Railway Co., 637. 
 Keating v. Cincinnati, 70, 
 Keats V. Hugo, 509. 
 Keay v. Goodwin , 448. 
 Keay ». New Orleans Canal Co , ,519. 
 Kedrollnonsky V. Niebanm. 286. 
 Keeble v. Hlckeringill, 181, 285, 408. . 
 Keedy v. Howe, 110. 
 
716 
 
 TABLE OF CASES CITED. 
 
 The Kefereuees are to Pages. 
 
 Keeler v. Eastman, 429. 
 
 Keen v. Coleman, 63. 
 
 Keen v. Hartman, 63. 
 
 Keenan v. Cook, US. 
 
 Keenanv. Kayanaugh,,611. 
 
 Keene v. Kimball, 22i. 
 
 Keep n. Quallman, 256. 
 
 liettv. Milwaukee etc. E. Co., 568. 
 
 Keboe v. Allen, 120. 
 
 Keighlv V. Bell, 141. 
 
 Keller v. Lessford, 298. 
 
 Kelmii. Enffi, 308. 
 
 Keiper v Klein, 509. 
 
 Kelser v, Liovett, 505. 
 
 Kelk V. FeaiBon, 610, 521. 
 
 Keller v. Eastman, 429. 
 
 Kelley v. Riley, 686. 
 
 Kelly u.Eyus, 123. 
 
 Kelley v. Silver Spring Bleaching Co., 
 
 193 
 Kelley v. St. Paul, etc. E. Co., 556. 
 Kellogg Bridge Co. v. Hamilton. 632. 
 Kellogg V. JanesviUe, 70. 
 Kellogg V. Payne, 92. 
 Kelly V. Donnelly, 278. 
 Kelly V. Erie Tel. & T. Co., 121, 155. 
 Kelly ». Flaherty, 298. 
 Kelly V. Hufflngtou, 291. 
 Kelly V. Insurance Co., 384. 
 Kelly V. Mayor, 550. 
 Kelly V. McDonald, 211, 436. 
 Melly V. Sherlock, 214, 321. 
 Kelly V. Tineling, 321. 
 Kelsey v, Barney, 534. 
 Kelsey v. Chicago & N. W. Ej. Co.,'562. 
 Kelsey v. Jewett, 81. 
 Kemlee v. Sas^t 287. 
 Kemmish v. Ball, 370, 503. 
 Kemmlttv. Adamson, 220. 
 Kemp V. Brown, 398. 
 Kemp V. Meville, 139. 
 Kemp V. Thompson, 432. 
 Kendall v. Brown, 27. 
 Kendrlsh v. McOrary, 278. 281. 
 Keniston v. Little, 262. 
 Kennard«. Burton, 568. 
 Kennayde v. Paciflc E. Co., 591. 
 Kennedy v. Favor, 262. 
 Kennedy v. Clifford, 312, 337. 
 Kennedy v. McKay, 68, 383, 661. 
 Kennedy v. Parke, 384. 
 Kennedy v. Phelps, 606. 
 Kennedy v. $hea, 277, 662. 
 Kennedy v. Whitewell, 683. 
 Kennedy v. Woodrow, 346. 
 Kennett v. Robinson, 434. 
 Eenney v. Grand Trunk etc. B., 661. 
 Keuuey v. McLaughlin, 316. 
 Kenney v. Eanney, 435. 
 Kenny v. Ounard S. S. Co., 122. 
 Kenny v. Railroad, 367. 
 Kent V. Bongartz, 305, 838. 
 Kentucky Cent. B. Co. v. Thomas, 667. 
 Kenyon v. Hart, 423. 
 Kenyon v. Woodruff, 435. 
 Kepperly v. Balnsden, 637. 
 Kerlin v. Chicago, etc., E. Co., 120. 
 Kersey v. Kansas Olty etc. B. Co., 125. 
 Kerr v. Mount, 142. 
 Kerr v. O'Connor, 614. 
 Kerwhacker v. Cleveland etc. B. Co , 
 
 635, 538, 610. 
 KesBl£r V. Smith, 82. 
 JiBSter o. W. U. Tel. Co., 56. 
 
 Ketcham v. Cohn, 87. 
 
 Ketchum v. Newman, 462. 
 
 Kevitt V. McKithan, 462. 
 
 Keyer v. Chicago etc. E. Co., 24. 
 
 Keyes v. Minneapolis & St. L. By. Co., 55. 
 
 Keys V. Gold Co., 529. 
 
 Keystone Bridge Go. v. Newberry, 122. 
 
 Khron v. Brock, 624. 
 
 Kidd V. Dennison, 429. 
 
 Kidd V. Gleek, 326. 
 
 Kidder v. Parkhurst, 328. 
 
 Kiebs V. Oliver, 294. 
 
 KlSv. Youmans, 153, 204. 
 
 Kilgore v. Jordan, 60. 
 
 Kilpatrio v. Frost, 141. 
 
 KUroy v. Delaware & H. C. Co., 120. 
 
 Kimbal v. Bates, 396. 
 
 Kimball v. Billings, 439. 
 
 Kimball v. Fernandez, 333. 
 
 Kimball v. Holmes, 235. 
 
 Kimball v. Insurance Co., 357. 
 
 •Kimble v. Yates, 459. 
 
 Kimbrough v. Mitchell, 81. 
 
 Klmela;. Kimel,618. 
 
 Kimple v. State,' 203. 
 
 King!;. Calvin, .394. 
 
 King!). Eagle, 363. 
 
 King!). London Improved Cab Co., !)7. 
 
 King V. Miller, 429. 
 
 King V. Mills, 357. 
 
 King V. Morris, 485. 
 
 King V. Patterson, 332, 336. 
 
 King V. Boot, 305, 318, 333. 
 
 Kingsbury v. Bradstreet, 336. 
 
 Kingsbury ». Flowers, 488, 503. 
 
 Kingston!?. Palmer, 318. 
 
 Kinmonlh v, McDougall, 614. 
 
 Kinner!). Grant, 300. 
 
 Kinney!). Carbin, 122. 
 
 Kinney v. Hosea, 294. 
 
 Kinney v. Langhenonr, 27S. 
 
 Kinney v. Nash, 301. 
 
 Kinney!). Tekamab, 70. 
 
 Kinsler v. Clarkb, 430. 
 
 Klutz !i, McNeal, 618. 
 
 Kmtzing v. McElratb, 351, 369. 
 
 Kirk !). Atlanta & O. A. E. Co., 122, 124. 
 
 Kirk V. Gregory, 413. 
 
 Kirk V. Todd, 83. 
 
 Kirkland v. State, 248, 251. 
 
 Klrkman v. Handy, 504, 505. 
 
 Kirkpatrick v. Hall, 61. 
 
 Klrkpatrick v. Eagle Lodge, 338. 
 
 Kirkwood v. Fincgan, 609. 
 
 Kirkwood, Town of, v. Cairnes, 485. 
 
 Klrsohner !!. Western & A. E. Co., 456. 
 
 Kirst I). M. L. S. & W. B. Co., 637. 
 
 Kitson V. People, 369. 
 
 Kittredge v. Elliott, 614. 
 
 Klauder!). McGrath,230. 
 
 Klenberg v. Eussell, 613. 
 
 KlewiU!;. Bauman,295, 298, 324. 
 
 Klinck V. Colby, 334, 336, 388. 
 
 Kline V. C. P. B. Co., 104. 
 
 Klupp II. United Ice Lines, 164. 
 
 Knathla !;. Oregon, etc. E. Co., 120. 
 
 Knauss v. Brna, 530. 
 
 Knickerbocker v. Colver, 230. 
 
 Knickerbocker Ins. Co. v. Eclesiue, 66. 
 
 Knight V. Albert, 611. 
 
 Knight V. Blackford, 301. 
 
 Knight V. Cooper, 192. 
 
 Knight V. Foster, 292, 315. 
 
 Knight!). Nelson, 87. 
 
TABLE OF CASES CITED. 
 
 717 
 
 The References are to Pages. 
 
 Knight V. BailToad Co., S3, 239. 
 
 Knight V. Wilcox, 271, 278. 
 
 Knisley v. Steiu, 214. 
 
 Enox V. Mayor etc. of New Tork, 520. 
 
 Knox ». Tucker, 611. 
 
 Kobs V. Miatieapolis, 69. 
 
 KoelBCh V. Philadelphia Co., 620. 
 
 Kohn V. LoTCtt, 164. 
 
 Kolb V. O'Brien, 223. 
 
 Koots V. Kaufman, 353, 867. 
 
 Kopper®. Willis, 642. 
 
 Korah v. Ottawa, 96. 
 
 Kosminsky v. Goldbeig, 64. 
 
 Kosti>. Bender, 358. 
 
 Koster v. Noonan, 615. 
 
 Kowing V. Manley, 64. 
 
 Kramer v. Market Street H. Co., 81. 
 
 Kramer v. Watts, 398. ^ 
 
 Kranz v. Baltimore, 70, 
 
 Krebs v. Thomas, 267. 
 
 Krelg V. "Wells, 585. 
 
 liremer v. Chicago, etc., By. Co., 459. 
 
 Kress v. State, 138. 
 
 Krewson v. Purdon, 450. 
 
 Krlppner v. Biebl, 44. 
 
 Krom 11. Schoonmaker, 59, 685. 
 
 Kroy V. Chicago, etc R. Co., 1(14. 
 
 Krug V. Burrough of Mary, 157. 
 
 Krug V. Ward, 399. 
 
 Krulevitz v. Eastern E. Co., 67, 68. 
 
 Lachet v. Lntz, 153. ' 
 
 Lafayette County Bank v. Metoalf, 441. 
 
 LafBlle v. New Orleans & L. E. Co., 108. 
 
 Lafln V. Willard, 214. 
 
 LaHin-Rand Powder Co. v. Tearney,503. 
 
 Lagan v. Maytag, 396. 
 
 Liigroiie V. Mobile & O. E. Co., 122. 
 
 Lahay v. City Nat. Bank, 367. 
 
 Laherty v. Hogan, 614. 
 
 Laidlaw v. Organ, 351, 369. 
 
 Laing v. Colder, 637. 
 
 Laing v. McKee, 357. 
 
 Lake Erie & W. E. Co. v. Christison, 213. 
 
 Lake Erie & W. Ey. Co. v. Kennedy, 459. 
 
 Lake Erie & W: Co. v. Michener, 462. 
 
 Lake Shore etc. E. Co. v. Hutohlns, 157. 
 
 Lakiu V. Ames, 463. 
 
 Lally i>. Emery, 322. 
 
 Lalor V. Chicago, etc., E. Co., 116. 
 
 Lamb v. Stone, 24. 
 
 Lamb v. Taylor, 278. 
 
 Lambert v. Bessey, T. Eaym. 170. 
 
 Lamm ®.Port, Deposit Homestead Assoc. 
 
 etc., 383, 386. 
 Laraparter v. Wallbaum, 627. 
 Lancaster 11. Lane, 138. 
 I^ancaster Bank v. Moore, 59. 
 Land V. Wilmington & W. K. Co., 651. 
 Landa v. Obert, 394. 
 Lander v. Miles, 263. 
 Lander v. Scaver, 149. 
 Landis v. Shanklin, 324. 
 L. & N. W. K. Co. V. Bradley, 158. 
 Landon v. Humphrey, 27. 
 Lankreth v. Landreth, 184. 
 Landt v. Hilts, 262. 
 Lane v. Atlantic Works, 42. 
 Lane o. Black, 384. 
 Lane v. Cameron, 535. 
 
 Lane v. Miller, 462. 
 Lanfranohi v. Mackenzie, 510. 
 Lauge V. Benedict, 13S, 260. 
 Langford v. Boston & A. E. Co., 264. 
 Langman v. St. Louis etc. E. Co., 567. 
 
 Langrldge ». Levy, 372, 623, 667. ^ 
 
 Lanier v. Allison, 225, 430. 
 
 Lanigan v. New York Gas Light Co., 620. 
 
 Launen v. The Albauy Gas Light Co., 
 
 620. 
 Lanning v. Christie, 32S. 
 Lans V. North Carolina E. Co., 611. 
 Lansing v. Carpenter, 287, 301. 
 Lansing v. Smith, 485, 487. 
 Lansing v. Stone; 164. 
 Lansing v, Toolan, 69. 
 Lapere v. Lucky, 509. 
 Lapham v. Curtis, 606. 
 Lapham v. Noble, 300. 
 Lard v. Carbon Iron Mfg. Co., 153. 
 LaEiyiere v, Pemberton, 567. 
 Lark v, Stearns, 384. 
 Larkin v. Noonan, 339. 
 Larkins v. Tartar, 316. 
 Larmore v. Crown Paint Iron Co., 153. 
 Larned v. AVheeler, 148. 
 Larock v. Ogdensbnrg & L. C. K. Co., 
 
 91. 
 Larow v. Clnte, 92. 
 Larson v. Metropolitan S. B. Co., 91. 
 Lasala v. Holbrook, 216,493. 
 Lasee v. Clute, 632. 
 Lasky v. Canadian P. E. Co . , 120, 5.52. 
 Latham v. Northern P. E. Co., 483. 
 Latham v. Eoach, 628. 
 Lathrop «. Arnold, 142. 
 Laughlin v. Bascom, 313. 
 Langhlins. State, 122: 
 Laughton v. Bishop of Sodor and Man, 
 
 338 345. 
 Lare'ry v. Crooks, 278, 281. 
 Laverty v. Yanarsdale, 402. 
 Laviuia v. State, 260. 
 Law V. Grant, 869, 384. 
 Lawler v. Androscoggin E. Co., 122. 
 Lawless V. Conn. E. Co., 633. 
 Lawrence v. Green, 589. 
 Lawrence v. Springer, 458. 
 Lawrence v. Warden, 684. 
 Lawson v. Hicks, 328, 334. 
 Lawson v. State, 248, 250. 
 Lawyer v. Fritcher, 271. 
 Lax V. Corporation of Darlington, 199, 
 
 594, 630. 
 Layion v.- Harris, 287, 316. 
 Lea V. Charrington, 266. 
 Lea V. Eobertson, 324. 
 Lea V. White, 328. 
 Leame v. Bray, 171. 
 Lean v. Burbank, 91. 
 Learned v. Castle, 522. 
 Leary v. Boston, etc. E. Co., 193. 
 Leavenworth, etc. E. Co. v. Cook, 662. 
 Leaveuworth, etc. Ey. Co. v. Cnrtan, 157. 
 Leavenworth, etc., Ey. Co. v. Forbes, 99. 
 Leavitt V. Chicago etc. E. Co., 557. 
 Leavltt V. Sizer, 112. 
 Le Barron v. Babcock, 448. 
 Lebavour v. Howan, 448. 
 Lebby». Ahrens, 375. 
 Lebeaume v. Hill, 658. ■> 
 
 Leber v, Minneapolis & N. W. E. Co., 87. 
 Leckey v. Bloser, 281. 
 Leckey v. MoDermott, 414. 
 
718 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Le 01alr». First Div. St. 1'. & R. R. Co., 
 
 191. 
 Ledbettcr v. Davis, 375. 
 Lee V. City of Minneapolis, 70. 
 Lee V. Hodges, 278. 
 Lee V. Lamprey, 403. 
 Lee V, McKay, 439. 
 Lee V. McLead, 462. 
 Lee V. Riley, 49, 612. 
 Lee V. Troy Cit. Gas Co., 546. 
 Lee V. West, 275. 
 Leeds v. Richmond, 70. 
 Leeson v. Qeuci'al Council etc., 146. 
 Leever v. Hamil, 395. 
 Legg V. Duuleavy, 287. 
 Legott V. G. N. R. Co., 77. 
 Leliigli etc. R. Co. v. New Jersey Co., 4^8. 
 Lehigb, etc. R. Go. v. McKeen. S04. 
 Leiiigli Valley Co. «. Joues, 122. 
 Lehman v. Shackelford, 357. 
 Lehu V. San Francisco, 69. 
 Leighton v. Sargent, 26. 
 Leland v, Gioodfellow, 376. 
 Lembeclc v. Nye, 482: 
 Lemon v. Newton, 69. 
 Lemons v. VTells, 296. 
 Lempriere v. Lange, 63. 
 Leonard v. Columbia, S. N. Co.. 82, 239. 
 Leonard v. N. Y. A. & B. T. Co.| 674. 
 Leonciui v. Post, 450. 
 Leopold V. Van Klrt, 632. 
 Lesaw v. Maine Cent. R. Co., 646, 552. 
 Lespeyre v. McFarland, 432. 
 Lester v. Tiiurmond, 329. 
 Letzler v. Huntington, 265. 
 Levenworth v. Casey, 70. 
 Levericls v, Meigs, 26. 
 Leviness v. Post, 101. 
 Levy n. Salt Lake City, 69. 
 Lewis V. Avery, 264. 
 Lewis V. Chapman, 305, 333, 345. 
 Lewis V. Clark, 448. 
 Lewis V. Few, 321. 
 Lewis V. Flint & P. M. Ry. Co., 164. 
 Lewis V. Hawley, 302. 
 Lewis V. Hudson, 295. 
 Lewis V. Jewell, 375. 
 Lewis V. Levy, 341. 
 Lewis V. Littleileld, 61. 
 Lewis V. McDanlel, 294. 
 Lewis V. McNott, 459. 
 Lewis V. Mobley, 432. 
 Lewis V. Ocean Nav. & Pier Co. , 434. 
 Lexington v. Lewis, 537. 
 Lexow V. Julian, 356, 360. 
 Leyman v. Latimer, 299, 327. 
 Libby V. lierry, 64. 
 i.ick V. Owen, 305. 
 Liddle V. Hodges, 334. 
 Life Assoc. V. Booglier, 347. 
 L<ggins V. luge, 463. 
 Liles V. Uuster, 305, 329. 
 Liiienthal v. Campbell, 145. 
 Lilly V. Boyd, 24. 
 
 Limekiller v. Hannibaf, etc., Co., 82. 
 Liming v. Illinois Cent. R. Co., 37. 
 Llnipus 2>. Loudon General Omnibus Co., 
 
 111. 
 Lincoln v. Buckmaster, 537. 
 Lincoln v. Cross, 142. 
 l.incojn v. Gillilan, 544. 
 Lincoln v. Hapgood, 148. 
 Lincoln v. Walker, 69. 
 Lincoln Coal M. Co, v. MoNally, 122. 
 
 Lincoln Rapid Transit Co. v. Nichols, 59a 
 
 Lindenblower v. Bentley, 453. 
 
 Lindley v. Hunt, 631. 
 
 Lindsay v. Grimn, 110. 
 
 Lindsay v. Larned, 398. 
 
 Lindsey v. Liudsey, 373. 
 
 Lindsey v. Perry, 420. • 
 
 Lindvall v. Woods, 123. 
 
 Lingwood v. Stowinarkek Co., 521. 
 
 Lining v. Bertbam, 138. 
 
 Linnehan v. Rollins, 91. 
 
 Llunehan v. Simpson, 567, 614. 
 
 Linney v. Maton, 298. 
 
 Linton v. Harley, 384. 
 
 Lipe V. Blaokwelder, 202. 
 
 Lipe V. Eisenlerd, 91, 278. 
 
 Lister V,. Ferryman, 268. 
 
 LitcbHeld V. Hutchinson, 378. 
 
 Little V. Downing, 243. 
 
 Little V. Hackett, 95, 549, 670, 578, 580. 
 
 Little V, Lathrop, 611. 
 
 Little V. Maguire, 611. 
 
 Little V. Moore, 138. 
 
 Little V. Stanbaok, 213. 
 
 Littlefleld v. Norwich, 70. 
 
 Little Miami E. Co. v. Wetmore, 108. 
 
 Little Rock &, M. R. Co. v. East Tenn, 
 
 etc. R. Co., 651. 
 Little Bock, etc. R. Co. v. Brooks, 488. 
 Little Rock, etc. R. Co. v. Duffy, 192, 191. 
 Little Rock etc. K. Co. v. Finley, 173, 6i0. 
 Little Rock, etc. K. Co.®. Townsend, 102. 
 Little Schuylkill etc. Co. ». Richards, 230. 
 Liveimore v, Blatcbelder, 202. 
 Livezly v. Gorgas, 518. 
 Livingston v. Cox, 60, 62. 
 Livingston v. Jefferson, 238. 
 Livingston v. Livingston, 224. 
 Livington v. Moingena Coal Co., 216. 
 Livingston v, Reynolds, 429. 
 Livingstone v. Burroughs, 267. 
 Lobdell V. Baker, 351. 
 Lobdell V. Siowell, 418. 
 Lubauchare v. Wharncliffe, 117. 
 Lock V. j\shton, 267. 
 Locke V. Bradstreet, 320, 331. 
 Locke V. Stearns, 112. 383. 
 Lockenour v. Sides, 398. 
 Lookett V. Fort Worth &E. G. Ey. Co.,527. 
 Lookiidger. Foster, 378. 
 Lockwood V. Bartlett, 111. 
 Lockwood V. Llinsford, 225. 
 Lockwood, etc. Co. v. Lawrence, 492. 
 Loeflel V. Pohlinau, 434. 
 Loeveuberg v. Rosenthal, 412. 
 Loewer v. Harris, 358. 
 Lofrano v. New York, etc. Co., 193. 
 Logan V. Austin, 185. 
 Logan «. Geduey, 610. 
 Logan V. Hartford Goal Co., 132, 
 Logan V. Logan, 272. 
 Logan V Murray, 279. 
 Logansport v. Dick, 69. 
 Lohiniller v. The Indian Fort Watei 
 
 Power Co., 530. 
 Lohner v. Hertzog, 435. 
 Lomerson u. Johnston, 351. 
 London and Brighton E. Co. -v. Triiman, 
 
 159, 160. 
 London Brewery Co., City of, v. Tennant, 
 
 609,510. 
 Long V. Chicago, etc., E. Co., 108. 
 Long V. Colburn, 660. 
 Long V. Hitchcock, 81, 
 
TABLE Ctr CASES CITED. 
 
 719 
 
 The References are to Pages. 
 
 Long V. Long, 148. 
 
 Long V. Moon, 92. 
 
 Long ». Morrison, 26, 27. 
 
 Long V. Penn. E. Co., 605. 
 
 Long V. State, 256. 
 
 Long V. Trexler, 519. 
 
 Long V. Woodman, 356, 358. 
 
 Longmeld v. Holliday, 623. 
 
 Longwood Valley R. Co. v. Bakei, 224. 
 
 Lonsdale v. Xelson, 513. 
 
 Loomis V. Terry, 206. 
 
 Looney v. McLean, 633. 
 
 Loper ». W. U. Tel. Co., 55. 
 
 Lopp ». Pinover, 434. 
 
 Lord V. Price, 433. 
 
 Lord V. Wormwood, 611. 
 
 Losee v. Biiclianan, 162, 603, 613, 615, 618. 
 
 Loatntter v. The City of Aurora, 531. 
 
 Lotto V. Davenport, 300. . 
 
 Loiicks V. Chicago etc. K. Co., 557. 
 
 Loudy V. ClaiKe, 561. 
 
 Lorillard v. Pride. 184. 
 
 Louisiana Mnt. Ins. Co. v. Tweed, 37. 
 
 LouisyUle & N. R. Co. v. Kelsey, 45. 
 
 LonlBvlUe & N. R. Co. v. Lawson, 443. 
 
 Louisville & N. R. Co. ». Martin, 122. 
 
 Louisville & N. R. Co. v. Mitchei, 552. 
 
 Louisville & N. R. Co. v. Sheets, 121. 
 
 Lonisville etc. R. Co. v. Case, 549. 
 
 Louisville, etc., R. Co. v, Douglas, 100. 
 
 Louisville etc. R. Co. v. Fllbern, 537. 
 
 Louisville etc. R. Co. v. Frowley. 668. 
 
 Louisville etc R. Co. v. Goetz, 569. 
 
 Louisville etc. R. Co. v. Graham, 123. 
 
 Louisville, etc., R. Co. v, Guthrie, 42. 
 
 Louisville, etc., R. Co. v. Krinning, 37. 
 
 Louisville etc. R. Co. v. McCoy, 538. 
 
 Louisville, etc. R. Co. ■». Orr, 193. 
 
 Louisville etc. R. Co. v. Schmidt, 556. 
 
 Louisville etc. R. Co. v. Sullivan, 565. 
 
 Lonisville, etc., Ey. Co. v. Hart, 617. 
 
 Louisville, etc. Ry. Co. v. Jones, 637. 
 
 Louisville Gas Co. v. Gutenknntz, 620. 
 
 Loundau v. Warfleld, 430. 
 
 Louther v. Earl of Radnox, 139. 
 
 Loutbam v. Commonwealth, 318. 
 
 Love V. Masoner, 281. 
 
 Love V. Moynehan, 206. 
 
 Lovell Co., The Jno. W. v. Houghton, 
 
 333. 
 Lovejoy v. Jones, 442. 
 Loveless v. Fowler, 438. 
 Lovoll V. Howell, 118. 
 Lovett V. Salem & S. D. R. Co., 104. 
 Low V. Bouverle, 364, 371, 374. 
 Low V. Grand Trunk Ry. Co. 629. 
 Jjow v. Knowlton, 494. 
 Low«. Fox, 66. 
 Lowe V. Herald Co., 345. 
 l^ovrev. Moss, 606. 
 Lowe V. Waterman, 395. 
 Lowell V. Boston & L. R. Co., 91, 232. 
 Lowell Gas Light Co., 620. 
 Lowcnburg v. Rosenthal, 9. 
 Lowery ». Manhattan E. Co., 37, 589, 636. 
 Lowcry v. W. U. T. Co., 674. 
 LowiyiJ. Vedder, 332, 336. 
 Lows V. Telford, 466, 467. 
 Lowther v. Earl of Radnor, 139. 
 L. E. etc. Ky. v. Haynes, 566. 
 Laby v. Wodehouse, 135. 
 Lucas V. Case, 147, 339. 
 Lucas V. Flinn, 235. 
 Lucas V. TrjmbuU, 443. 
 
 Luce V. Carley, 456. 
 
 Luce V. Chicago, etc., E. Co., 116. 
 
 Luck V. Rlpon, 218. 
 
 Lndington v. Feck, 141, 265. 
 
 Luccker v. Steilen, 281. 
 
 Liiford 17. Putnam, 639. 
 
 Luke V. Calhoun Co., 82. 
 
 Lukehart v. Beverly, 294. 
 
 Lukens v. Freiuud, 370. 
 
 Lnmley v. Caswell, 194. 
 
 Lumley v. Gye, 74, 274, 275, 410, 668, 669, 
 
 670, 671, 672, 673. 
 Lund V. HerseyL'b'r Co., 123. 
 Lunt V. Brown, 424, 452. 
 Luther v. Winnisimraet, 178, 518. 
 Luttrell V. Hazen, 99, 412. 
 Lyde's Appeal, 178. 
 Lyde v. Barnard, 382. 
 Lyell V. Ganga; Dai, 166, 620. 
 Lyle V, Clason, 307. 
 Lynch v. Knight, 291, 293,671. 
 Lynch v. Mercantile Trust Co., 112. 
 Lynch v. Metropolitan Elevated R. Co., 
 
 68, 107. 
 Lynch v. Nurdin, 48. 
 Lynch v. Smith, 584. 
 Lynde v. Johnston, 301. 
 Lyon V. Cambridge, 70." 
 Lyon V. Fishmongers' Company, 490, 508. 
 Lyon V. Meils, 606. 
 Lyons v. Merrick, 614. 
 Lyton V. Balrd, 394. 
 Lyttle V. Chicago & W. M. R. Co., 123, 194. 
 
 M. 
 
 Mabin v. Webster, 223. 
 
 Macy V. Childress, 182. 
 
 Macfadzen v. Olivant, 274. 
 
 Machine Co. v. Haven, 213. 
 
 Mackay v. Commercial Bank of New 
 Brunswick, 113, 387. 
 
 Mackeys;. City, 585. 
 
 Macon, etc. R. Co. v. Lester, 610. 
 
 Mad. and Ind. R. Co., The, v. The Nor- 
 wich Sav. Society, 383. 
 
 Maddison v. Alderson, 115. 
 
 Madras B. Co . v. Zemindar of Caryaten- 
 agaram, 607, 608. 
 
 Magee v. Tappan, 412. 
 
 Magiunay v. sandek, 278. 
 
 Magulre v. Hughes, 138. 
 
 Mahan v. Brown, 33, 509. 
 
 Maher v. Manhattan Ey. Co., 552. 
 
 Mahoney v. Atlantic etc. E. Co., 530. 
 
 Mahoney v. Dore, 193. 
 
 Mahurin v. Harding, 357. 
 
 Maine v. City of Blch Hill, 271. 
 
 Mains v. Whiting, 300. 
 
 Mairs V. Real Estate Assoc, 422. 
 
 Maises v. Thornton, 301. 
 
 Makers. Slater Mill Power Co., 534. 
 
 Malachy v. Soper, 389. 
 
 Malcoln ». Fuller, 12.3. 
 
 Malcolm v. Spoon, 478. 
 
 Malcohuson v. Scott, 262. 
 
 Mali V. Lord, 107. 
 
 Maliniemi v. Gronlnnd, 266. 
 
 Mallach v. Ridley, 107. 
 
 Mallory v. Pioneer Press Co., 318. 
 
 Malloy V. Bennett, 291. 
 
 Malone v. Hanley, 192. 
 
720 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Malone v. Hathaway, 119. 
 
 Malone v. Fittsbargh & L. E. U. Co., 30. 
 
 Malone v. Evan, 222, 683. 
 
 Maloney v. Doane, 260. 
 
 Maloy V. New York Cent. R. Co., 543. 
 
 Maloy V. Wabash, etc. Ry. Co., 563. 
 
 Manchester Bonded Warehouse Co. v. 
 
 Carr, 428. 
 Manchester South Jn. Co. v. FuUerton, 
 
 67. 
 MandevlUe v. Guernsey, 263. 
 Maner v. State, 260. 
 Manean v, Atterton, 586. 
 Manhattan Mfg. Co. v. Van Kenren, 505. 
 Manley v. Field, 2S0. 
 Mann v. Loclse, 658. ' 
 Mann v. Wetland, 6141 
 Manner v. Simpson, 288. i 
 
 Manning v. Alb^, 357. 
 Manning v. Mitchell, 260. . ' . 
 
 Manning v. State of Nicaragua, 136. 
 Manning v. Wells, 642. 
 Mannville Co. v. Worcester, 239. 
 Mansfield, etc.. Coal Co. v. MoEnery, 633. 
 Manznni v. Douglas, 54S. 
 Maples V. Weeks, 316, 316. 
 Marble v. Boss, 614. ' 
 
 Marble v. Worcester, 29. 
 March v. Davison, 301, / 
 
 Marcott v. Marquette etc. B. Co., 556. 
 Marootti7. Railroad Co.,,574. 
 . Marcy v. Diverson, 447. 
 Marcy ». Fries, 518. 
 
 Marietta, etc. R. Co. v. Stephenson, 610. 
 Marin v. Satterfleld, 220. 
 Marine Ins. Co. v. St. Louis, I. M. & S. 
 
 R. Co., 487, 497. 
 Marion v. Chicago, etc., R. Co., 108, 110. 
 Marlonc. C. B. I. &P. R. Co.,67. i 
 
 Markel v. Mondy, 356. 
 Markel v. Moody, 359. 
 Marker v. Dunii, 292. 
 Markey v. Baud, 142. 
 . Markbam v. Brown, 651. 
 Markley v. Whitman, 248. 
 Marks v. Baker, 324, 332. 
 Marks v. Jacobs, 345. 
 Marks v. St. Paul, etc. By. Co., 590. 
 Mars V. Del. & H. Canal Co., 574. 
 Marselis ti.' Banking Co., 528. 
 Marsh v. Billiuss, 388, 390. 
 Marsh v. Bristol, 257. 
 Marsh v. Ellsworth, 329. 
 Marsh v. Keating, 234, 237. 
 Marsh v. N. Y. etc. R. Co., 611. 
 Marshall's Case, 663, 664. 
 Marshall v. Belner, 392. 
 Marshall v. Blackshire, Wk. 
 Marshall v. Cohen, 505. 
 Marshall v. Heard, 624. 
 Marshall v. Heller, 260. 
 Marshall v. Herman , 120. 
 Marshall v. Hubbard, 353. 
 Marshall v. Oakes, 64. 
 Marshall e. Peck, 337. 
 Marshall v. Piles, 683. 
 Marshall V. St. Louis, K. C. & N. By. Co., 
 
 104. , 
 Marshall v. Turnbull, 225. 
 Marshall v. Wellwood, 615. 
 Marshall v. Wing, 61. 
 Marshall v. York, Newcastle & Berwick 
 
 E. Co., 658. 
 Marshalsea, The, 143. 
 
 Martic, Township of, 217. 
 
 Martin v. Chicago, etc., 157. 
 
 Martin v. G. I. P. B. Co., 663. 
 
 Martin v. Honghton, 463. 
 
 Martin v. Payne, 278, 2S0. 
 
 Martini;. Bichards, 99. « 
 
 Martin v. Tribune Assn., 92. 
 
 Martin v. Van Schaick, 310. 
 
 Martin v. W. U. T. Co., 675. 
 
 Martinowsky v. City of Hannibal, 529. 
 
 Marts 11. State, 255. 
 
 Marvin v. Chicago, M. & St. P. By. Co., 43. 
 
 Marzettiv. Williams, 654.. 
 
 Mascheck v. St. Louis etc. R. Co., 585. 
 
 Mason v. Lewis, 432. 
 
 Mason v. Mason, 31SL 
 
 Mason v. Vance, 141. 
 
 Masper v. Brown, 258. 
 
 Massiiere v. Dickens, 29.5, 305. 
 
 Masterson v. Short, 486. 
 
 Master Stevedore's Assoc ». Walsh, 410. 
 
 Matthews v. Bliss, 376. 
 
 Matthews v. Torrey, 151. 
 
 Matthews v. Menadger, 454. 
 
 Matley v. Whittier Machine Co., 584. 
 
 Matlock V. Beppy, 34^, 371. 
 
 Matsell V. Flanagan, 224. 
 
 Matthes V. Kerrigan, 92. 
 
 Matthews v. Beach, 313. 
 
 Matthews v. Case, 122. 
 
 Matthews v. Cowan, 61. 
 
 Matthews v. Fiestel, 64. 
 
 Matthews v. Fuller, 26. 
 
 Matthews v. Missouri P. Ry. Co., 211, 514. 
 
 Matlice v. Wilcox, 300. 
 
 Mangher v. Dick, 347. 
 
 Maulsby v. Reifsneidei, 329. 
 
 Maund v. Monmouthshire Canal Co., 68. 
 
 Maxwell v. Bay City etc. Co., 463. 
 
 May V. Burdett, 613. 
 
 May V. Hanson, 669. 
 
 Maybee v, Fisk, 312. 
 
 Mayer «.< Association, ilO. 
 
 Mayer v. Schlelchter, 295. , 
 
 Mayer v. Walter, 400. 
 
 Mayer v. Manning, 447. ^ 
 
 Maynard v. Fireman's Fund Ins. Co., fill, 
 
 312. 
 Mayo m. Boston & Maine Railroarl. 516. 
 Mayor of Colchester v. Brooke, 577. 
 Mayor of London v. Cox, 143. 
 Mayor of Mauchestero. Williams, 68, 2!)7. 
 Mayor of Nashville «. Nichol, 70. 
 Mayor of Rome ii. Dodd, 70. 
 Mayor of Savannah v. Waldner, 69. 
 Mayor etc, v. Ferry Co., 67. 
 Mayor etc. ot Vicksburg v. McLain, 358. 
 Mayrant v. Richardson, 302. 
 Mayson v. Sheppard, 296. 
 Mayton v. T. & P. Ry. Co., 126. 
 McAdains v. Catos, 351, 368. 
 McAleer v. Horsey, 357, 358. 
 McAllister ». Albany, 70. 
 McAllister v. Free Press Co., 321. 
 MoAndrewst). CoUerd, 503, 615. 
 McAnnelly v. Chapman, 442. 
 McArthur v. Sears, 606. 
 MoBee v. Fulton, 333, 325. 
 McBeth V. Craddock, 357, 367. 
 McBride v. Board of Commrs., 430. 
 McBride v. Indianapolis Frog & Switch 
 
 Co., 119. 
 McBi-ide v. Union P. B. Co., 122. 
 McCabo V. Jones, 310. 
 
TABLE OF CASES CITED. 
 
 721 
 
 The References are to Pages. 
 
 McCaffrey v. Carter, 436. 
 
 McCaffrey «. Twenty third St. E. Co., 164. 
 
 McGaleb v. Smitb, 296. 
 
 MoCall V. Brock, 606. 
 
 McCall V. Ghambei^aln, 611. 
 
 McCampbell v. Cnnara S. S. Co., 193. 
 
 McCanaiess v. MoWUa, 26. 
 
 McCann v. Kings Co. B. R Co., 92. 
 
 McCann v. TllUnghast, 110. • 
 
 McCannon v. O'Connell, 449. 
 
 MpCardle v. McGinley, 398. 
 
 McCarrahan v. Lavers, 266. 
 
 McCarthy v. Boston, 108. 
 
 McCarthy v. DeArmit, 262. 
 
 McCarthy v. Nisiern, 651. 
 
 McCarthy v. Second Parish, 92. 
 
 McCarty v. Bauer, 27. 
 
 MoCarty v. Fremont, 201, 203. 
 
 MoCarty v. Vickey, 414. 
 
 McCanley v. Logan, 164. 
 
 McClafferty v. Phllp, 394. 
 
 McClain v. Appeal of, 498. 
 
 McClallen v. Adams, 186. 
 
 McClanathan v. Oswego, etc., E. Co., 84. 
 
 McOlai-y v. Sioux City,- etc., E. Co., 29, 42. 
 
 McCleary «. Kent, 92. 
 
 McOlellan v. Hurdle, 178. 
 
 McClelland v. Louisville, eto.,Ey. Co., 30. 
 
 McClenaghan v. Broch, 108. 
 
 MoClung V. Dearborne, 87. 
 
 McClure ■». IrtiUer, 81. 
 
 McClure v. Thorpe, 447. 
 
 McCombs V. Tuttle, 307. 
 
 McCoon V. Smitb, 61. 
 
 MoCord V. Oakland Quicksilver CCj/iSO. 
 
 McCormack v. Perry, 392. 
 
 McCoull V. Manchester, 70. 
 
 McCoy V. Empire Warehouse Co., 120. 
 
 McCoy V. McKowen, 108. 
 
 McCready v. So. Car. E. Co., 504. 
 
 MoCready v. Thompson, B09. 
 
 McCubbin v. Hastings, 26. 
 
 McCullougb V. City of Denver, 483. 
 
 McOullough V. Eice, 396. 
 
 McCallough V. Shoneman, 87. 
 
 McCnllongh v. St. Paul, M. & M. Ry. Co., 
 
 157. 
 McCuUongh v. Walton, 220. 
 McOnUy v. Clarke, 646. 
 McCurdy v. Rogers, 660. 
 McDade v. City of Chester, 615. 
 McDaniel v. Needham, 267. 
 McDanlel v. Tebbetts, 146. 
 McDermott v. Evening Journal, 343. 
 McDermott v. Pacific R. Co., 116. 
 McDonald, In re, 295. 
 McDonald v. Ashland, 70. 
 McDonald v. Chicago & N. W. K. Cq., 5!J8. 
 McDonald ». Eagle & Phoenix Mfg. Co., 
 
 122. 
 McDonald v. Hazeltine, 117. 
 McDonalds. New York, etc., E. Co., 120. 
 McDonald v. Press Pub. Co., 296. 
 McDonald v. Eedburg, 199. 
 McDonald v. Snelling, 29, 42. 
 McDonald v. Trafton,363. 
 McDonald v. Walker, 211. 
 McDonnell v. Cambridge E. Co., 213. 
 McDonnell v. Rifle Broom Co., 92. 
 McDonongh v. Virginia City, 70. 
 MoDougald V. Bellamy, 112. 
 McDougall V. Cent. R. Co., 569. 
 McDuffee v. Railroad, 651. 
 McEUigott V. Randolph, 123. 
 
 McFadden v. Ransoh, 519. 
 
 McFadden v, Robinson, 358. 
 
 McFadden v. Whitney, 397. 
 
 MoGar v. Williams, 358. 
 
 McGary v. Loomis, 567. 
 
 McGhee v. Hall, 448. 
 
 MoGibbon v. Baxter, 617. 
 
 MoGlbbons v. Wilder, 378. 
 
 McGinty v. Athal Reservoir Co., 122. 
 
 McGlynn v. Brodle, 192. 
 
 McGovern v. New York etc. R. Co., 585. 
 
 MoGowan v. Mo. Pac. Ry. Co., 514. 
 
 McGraw v. Baltimore, etc. R. Co., 606. 
 
 McGready v. South Car. R. Co., 552. 
 
 McGreary v. Eastern R. Co., 586. 
 
 McGregor v. Brown, 439. 
 
 McGregor v. Penn, 351. 
 
 McGregor, City of, v. Boyle, 516 
 
 McGrew v. Stone, 29, 42. 
 
 McGuire v. Blair, '301. * 
 
 McGub-e V. Cartersville, 69. 
 
 McGuire v. Galligan, 142. 
 
 McGuire v. Grant, 519. 
 
 McGuire v. Ringrose, 614. 
 
 McGuire v. Spence, 634. 
 
 MoGurn v. Brackett, 394. 
 
 McHeniy v. Sneer, 402. 
 
 McHugh V. Chicago, etc. R. Co., 562. 
 
 McHugh V. Pundt, 141. 
 
 Mcllvoy V. Cockran, 201, 256. 
 
 Mclntire v. Platsted, 204. 
 
 Mclntire v. Roberts, 6't4. 
 
 Mclntire R. Co. v. Bolton, 98. 
 
 Mclntyre v. Bransford, 326. 
 
 Mclntyre v. BueJl, 353. 
 
 Mclntyre v. Sholty, 59. 
 
 McKay v. Irvine, 110, 112. 
 
 McKay ». Northern P. R. Co., 120. 
 
 McKay V. State, 248, 
 
 McKay V. Woodle, 610. 
 
 McKee V. Eaton, 368. 
 
 McKee v. Ingalls, 60, 296, 305, 576. 
 
 McKee v. Owen, 651. 
 
 McKee v. Wilson, 286, 300. 
 
 McKeller v. Township of Monitor, 587. 
 
 McKeunou v Greer, 296. 
 
 McKenzie v. Denver Times Pub. Co., 300. 
 
 McKeon v. Lee, 495. 
 
 McKeown v. Johnson, 64. 
 
 McKinley v. C. & N. Ey. Co., 104. 
 
 McKinley v. Eob, 305, 311. 
 
 McKlnney v. Eoberts, 296. 
 
 McKlnsoy v. Squires, 685. 
 
 McKnlght V. Hasbrouck, 339. 
 
 McKnigbt v. Ratchliff, 518, 639. 
 
 McKnown v. Hunter, .393. 
 
 McKone v. Michigan, etc. E. Co., 627. 
 
 McLaughlin v. Bascom, 311. 
 
 McLaughlin v. Charles, 329. 
 
 McLaughlin v. Cowley, 329. 
 
 McLaughlin v. Pryor, 95. 
 
 McLean v. Blue Point Min. G. Co., 122. 
 
 McLean v. Cook, 141. 
 
 McLean v. Jackson, 243. 
 
 McLean v. Schuyler Steam Tow-Boat 
 
 Line, 690. 
 McLean v. Warring, 323. 
 McLelland v. LouiaviUe, etc. E. Co., 537. 
 McLennon v. Richards, 262. 
 McLeod V. Eallroad Co., 239. 
 McMahon v. Field, 684. 
 McManns v. Cooke, 463. 
 MoManns v. Crlckett, 111. 
 McManus v. Lee, 230. 
 
 46 
 
722 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 MoMasters v. Illinois Central «. Co. ,120. 
 
 McMenomy v. Band, S22. 
 
 McMillan v. B. & M. B. Co., 585. 
 
 McMillan v. Watt, 493. 
 
 McMillan V. Birch, 301, 328. 
 
 McNair v. Toler, 59. 
 
 McNally v. Colwell, 534. 
 
 McNamara v. Gargett, 376. 
 
 McNamee v. Minke, 398. 
 
 McNay v. Stratton, 260. 
 
 MoNevlns i). Lowe, 27. 
 
 McNulta V. Ralston, 157. 
 
 McPadden ii. Railroad Co., 606. 
 
 McPlieeters v. Hannibal, etc. R. Co., 010. 
 
 McPherson v. Daniels, 306, 317. 
 
 McPherson v. St^te, 257. 
 
 McPlieters v. Page, 434. 
 
 McQueen v. Fnlgtiam, 64, 292, -298. 
 
 McQaeen v. Heck, 264. 
 
 McQuitken v. Central P. E. Co., 574. 
 
 McVeigti V. United States, 59. 
 
 MoWhirter«. Hatten, 271. 
 
 McWilliamB v. Bragg, 220. 
 
 Mead v. Bunn, 377. 
 
 Mearl V. Jack, 440. 
 
 Meadow v. Wise, 142. 
 
 Meara v. Bole, 603. 
 
 Mears s». L. & S. W. B. Co., 433. 
 
 Medbury v. Watson, 357. 
 
 Medford v. Pratt, 456. 
 
 Meeker u. Van Rensselaer, 5^^, 
 
 Meeks v. Southern P. R. Co., 574. 
 
 Meese v. Fond da Lac, 271. 
 
 Mehan v. Syracuse, etc., R. Co. , CJ3. 
 
 Mekrhof etc. Co. v. Delaware, etc. R. Co., 
 
 531. 
 Meidel v. Anthis, 235. 
 Meier v. Penn. R. Co., 637. ' 
 Meigs V. Lister, 505. 
 Mele V. Delaware & H. C. Co., 120. 
 Mellon V. Morrill, 624. 
 Mellort;. Spateman, 508. 
 Mellori). Watkins, 461j 
 MelviUe v. Gary, 350. 
 Melvin v. Weiant, 291, 297. 
 Membery v. G. W. It. Co., 191, 105. 
 Memphis etc. R. Co. v. McCbol, 637. 
 Memphis etc. R. Co. v. Hick-). L57. 
 Memphis E. Co. v. Thomas, 117. 
 Memphis etc. R. Co. ». Whltiielcl, 558. 
 Mendenhall v. Klinck, 464. 
 Meneely v. Meneely, 184. 
 Mennle v. Blake, 4'J6, 455. 
 Mentyer v. Armour, 125. 
 Mephams v. Biessel, 630. 
 Mercale v. Down, 614. 
 Mercer v. Corbin, 248, 252. 
 Mercer v. Walmsley, 278. 
 Merchants' & P. Bank v. Meyer, 441. 
 Merchants' Uis. Co. v. Smitii, I1U6. 
 Merchants' Nat. Bank v. State Nul. Bank, 
 
 67. 
 Meredith v. Reed, 538. 
 Merest v. Harvey, 220. 
 Merivale v. Carson, 319. 
 Merriam v. Cunningham, 60. 
 Merriam v. Mitchell, 393. 
 Merrifield v. Lombaid, 492. 
 Merrifleld v. Worcester, 492. 
 Merricl v. Claremont, 43. 
 Merrills v. Tariff, etc., Co., 67. 
 Merryweatheri;..Nixan, 232. 
 Mersey Docks Trustees v. Gibbs, 71, 113, 
 
 155. 
 
 Messenger v. Pennsylvania E., 651. 
 MetcaK V. Canard Steamship Co., 639. 
 Metropolitan Association v. Petch,a29. 
 Metropolitan Asylum District v. Hill, 158. 
 Metropolitan Bank v. Pooley, 401. 
 Metropolitan By. Co. v. Wright, 212. 
 Metropolitan Ry. Co. v. Jackson, 49, 553, 
 
 654. 
 Metzler ».iEomine, 332, 
 Meux V. Cobley, 428. 
 Meyer v. Amidon, 353. 
 Meyer v. Metzler, 492. 
 Meyer «. Second Ave. E. Co;, 105. 
 Meyrose v. Adams, 391. 
 Mich. Cent. R. Co. v. Anderson, 503. 
 Michael v. Stantoni 94. 
 Michaels v. N. Y. etc., R. Co., 606. 
 Michaelson v. Uennison, 151. 
 Michan «. Wyatt, 243. 
 Michel V. Dunkle, 274. 
 Michel V. Monroe Co., 520, 
 Michell V. Mllholland, 305. 
 Michigan V. Coleman, 272. 
 Michoud V. Girod, 245. 
 Mlddlestadt v. Morrison, 534. 
 Midland Insurance Co. v. Smith, 236. 
 MIelanz». Qusdorf , 308, 312, 323. 
 MielvehiU v. Bales, JOO. 
 Milam v. Burusides, 328. 
 Milburn v. Oilman, 141. 
 Milburne v. Byrne, 275. 
 Miles ». Worcester, 492. 
 Millen v. Fawdry, 613. 
 Miller v. Adams, 265. 
 Miller «. Baker, 9. 
 Miller v. Burkett, 483. 
 Miller v. Burlington & C. E., 67. 
 Miller v. Butler, 295, 307. 
 Miller V. O. M. St. P. Ey. Co., 395. 
 Millerjj. Craig, 199. 
 Miller v. Curry, 614. 
 Miller ». Curtis, 359. 
 Miller v. Dell, 244, 302, 437. 
 Miller 21. Fenton,231. 
 Miller v. Grace, 267. 
 MiUerr. Keokuk etc., Ry. Co., 244. 
 Miller v. Kerr, 315. 
 Miller V. King, 658. 
 Wilier V. Lynch, 482. 
 Miller v. Mariners Church, 0=4. 
 Miller 1). Martin, 503. 
 Miller V. Milligan, 394. 
 Miller V. Missouri P. E. Co., 121. 
 Millers;. State, 255. 
 Miller v. Southern P. E. Co., 120. 
 Miller ». Swltzer, 64. 
 Miller v. Thompson, 4S4. 
 Miller v. Truehart, 505. 
 Miller V. IJmbehower, 81. 
 Miller v. Union. P. R. Co., 124. 
 Miller v. WlUigen, 893. 
 Miller v. Woodhead, 24. 
 Milligan v, Wehinger, 611. 
 MlUiken V. Hath way, 439. 
 MiUison V. Hoch,220. 
 Mills V. Armstrong, 570,580, 583, 696. 
 Mills V. United States, 156. 
 Mills V. Woo ten, 469. 
 Milwaukee Bank v. City Bank, 26. 
 Milwaukee & M. E. E. Co. v. Finney, 87. 
 Milwaukee & St. P. Ry. Co. v. Kellogg,36. 
 Milwaukee etc. B. Co. v. Arms, 638. 
 Miner v. Conn. River R. Co., 693. 
 Miner v. Medbury, 367. 
 
TABLE OF CASES CITED. 
 
 723 
 
 The Befereuces are to Pages. 
 
 Ming V. Woolf oik, 9, 375. 
 
 Mlnke v. Hopeman, 606. 
 
 Minniug v. Mitchell, 261. 
 
 Miutz V. MorrlBOn, 369. 
 
 Mlsner v. Iiighthall, 610. > 
 
 Misner v. Russell, 370. 
 
 Misslsslijpl Cent. R. Co. v. Mason, 544. 
 
 Mississippi etc. Ry Co. v. Finley, 370. 
 
 Missouii Furnace Co. v. Abend, 192. 
 
 Missouri Pao. Ry. Co. v, Lewis, 82. 
 
 Missdari Pac. Ry. Co. v. Peregoy, 123. 
 
 Missouri Pac. Ky. Co . v. Platzer, 561. 
 
 Missouri Pac. Ry. Co. u. Sasse, 123. 
 
 Missouri Pac. Ry. Co. v. Somers, 193,r,33. 
 
 Missouri Pac. Ry. Co. v. Williams, Lii. 
 
 Mitchell V. Allen, 230. 
 
 Mitchell V. Bradstreet Co., 302. 
 
 Mitchell V. Clapp, 614. 
 
 Mitchell V. Crassweller, 99, 102? 144. 
 
 Mitchell V. Darley Main Colliery (Jo., 216. 
 
 Mitchell V. Harmony, 84, 144. 
 
 Mitchell V. Malone, 267. 
 
 Mitchell V. Mayor of Rome, etc., 211, 216. 
 
 MitohelliJ. McDougall,330, 362, 369. 
 
 Mitchell V. Mitchell, 250. 
 
 Mitchell V. Robinson, 124. 
 
 Mitchell V. State, 251. 
 
 Mitchell V. S. W. E. Co., 398. 
 
 Mitchell V. Wolf, 611. 
 
 Mix V. McCoy, 60. 
 
 Mix v. Woodward, 312. 
 
 Moberly v. Preston, 292, 295, 315. 
 
 Mobile & M. Ry. Co. v. Smith, 99. 
 
 Mobile, etc. E. Co. v. Ashoroft, 567. 
 
 Mobile, etc., E. Co. v. Gray, 604. 
 
 Mobile, etc. E. Co. v. Williams, 611. 
 
 Moe o. Smiley, 81. 
 
 Moffatt V. Bateman, 630, 642, 657. 
 
 Mogul Steamship Co. v. McGregor, 177, 
 182, 227, 285, 403, 406. 
 
 Mohry v. Hoffman, 278. 
 
 Moir V. Hopkins, 112. 
 
 Moise V. Dearborn, 384. 
 
 MoUoy 1). New York, etc., R. Co., 104. 
 
 Money v. Lower Vein Coal Co., 193. 
 
 Monk V. New Utrecht, 576. 
 
 Monk V. Packard, 485, 603. 
 
 Monmouth Bank v. Dunbar, 434 
 
 Blouongahela City v. Fischer, 70. 
 
 Montgomery v. Deeley, 295. 
 
 Montgomery v. Dooley, 294. 
 
 Montgomery v. Handy, 610. 
 
 Montgomery v. Knox, 320. 
 
 Montgomery v. Thompson, 185. 
 
 Montgomery Gas Light Co. v. Mont- 
 gomery & E. Ry. Co., 573. 
 
 Montreal River Lumber Co. ■». .Mihills, 
 367. 
 
 Monroe v. Stiekney, 214. 
 
 Monument Bank v. Globe Works, 67. 
 
 Moody V. Baker, 293. 
 
 Moody V. Deutsch, 399. 
 
 Moody V. McDonald, 537. 
 
 Moody V. Ward, 618. 
 
 Mooney v. Coolldge, 225. 
 
 Mooney v. Maynard, 473. 
 
 Mooney v. Miller, 350, 357. 
 
 Moorcock, The, 630. 
 
 Moore v. Ames, 138. 
 
 Moore v. Appleton, 230, 231. 
 Moore v. Cite' of Waco, 243. 
 Moore v. Columbia & G. E. Co., 97. 
 Moore v. Des Moines, etc., Co., 637. 
 Moore v. Durgin, 262. 
 
 Moore v. Eastman, 61. 
 
 Moore ». Floyd, 214. 
 
 Moore v. Manufacturers' Nat. Bank, 331. 
 
 Moore v. Massslni, 225. 
 
 Moore v. Mauk, 323. 
 
 Moore V. McKibbin, 438. 
 
 Moore ». Metrop. R. Co., 107. 
 
 Moore v. Mo. Pac. R. Co., 395. 
 
 Moore v. Norfolk & W. R. Co., 607. 
 
 Moore v. Ocean Steam Nav. Co., oil. 
 
 Moore v. Perry, 422. 
 
 Moore v. Rawson, 509, 511. 
 
 Moore v. Robinson, 418. 
 
 Moore v. Sanborn, 394. 
 
 Moore v. Shields, 403. 
 
 Moore v. Stevenson, 291. 
 
 Moore v. Thompson, 260. 
 
 Moore v. Wallis, 243. 
 
 Moore «. White, 228. 
 
 Mootry v. Town of Daubnry, 531. 
 
 Morain v. Devlin, 59. 
 
 Moran v. Miami County, 63. 
 
 Morasse v. Brochu, 291, 300. 
 
 Morehead v.~Eades, 35S. 
 
 Morehead v. Gilmore, 111. 
 
 Morehead v. Jones, 324. 
 
 Moreland v. Atchison, 361. 
 
 Morey v. Fitzgerald, 476. 
 
 Morey v. Morning Journal Assoc, 347. 
 
 Morford v. Woodworth, 519. 
 
 Morgan v. Bliss, 44. 
 
 Morgan v. Booth, 329 
 
 Morgan v. Bowman, 91. 
 
 Morgan v. Cox, 698, 618, 637. 
 
 Morgan v. Curley, 537. 
 
 Morgan v. Dawles, 278. 
 
 Morgan V. Dudley, 148. 
 
 Morgan v. Eis<s, 323. 
 
 Morgan v. Eose, 281. 
 
 Morgan v. Schwachofer, 225. 
 
 Morgan v. Skiddy, 363'. 
 
 Morgan v. Smith, 276. 
 
 Morgan v. State, 250. 
 
 Morgan v. Vale of Neath E. Co., 119. 
 
 Morgan v. Varick, 9, 469. 
 
 Morier i\ Minneapolis, etc., R. Co., 108. 
 
 Moritz V, Ganhart, 278. 
 
 Morley v. Chase, 263. 
 
 Morley v. Elsbree, 402. 
 
 Morrell v. Pheinfrank, 94. 
 
 Morrill )J. Aden, 61. 
 
 Morrill V. Blackman, 357. 
 
 Morrill v. Moulton, 434. 
 
 Morrill V. Wallace, 351, 357. 
 
 Morris v. Casel, 256. 
 
 Morris v. Chicago, 239. 
 
 Morris v. Fraker, 610. 
 
 Morris v. PlatL 164, 167, 201, 204. 
 
 Morris v. Scott, 33, 393. 
 
 Morris v. Shaw, 220. 
 
 Morris & E. R. Co. v. Prndden, 522, 5::s. 
 
 Morris etc. Co. v. Eyerson, 53(1. 
 
 Morris etc. R. Co. v. State, 56J. 
 
 Morrisey v. Wiggins Ferry Co., 691. 
 
 Morrison v. Davis, 51. 
 
 Morrison v. Marquardt, 509. 
 
 Morrison v. Phillips.etc. Cons. Co., 193. 
 
 Morrison v. Rogers, 658. 
 
 Morrlssey v. Eastern R. Co., 581. 
 
 Morrow v. Wood, 150. 
 
 Morse v. Belfast, 552. 
 
 Morse v. Copeland, 462. 
 
 Morse v. Crawford, 59. • 
 
 Morse v. Dearborne, 350, 363. 
 
724 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Hoise V. Dnncan, 2S3. 
 
 Moise V. Woicester, 69. 
 
 Mortimer v. Thomas, 263. 
 
 Morton v, Detroit etc. K. Co.. 121. 
 
 Morton v. Met. Life Ips. Co., 67,68. 
 
 Morton v. Moore, 487. 
 
 Morton v. Scnll, 383^ 
 
 Moses V. DaboSs, 2B9. 
 
 Moses V. JolinsDn, 429. 
 
 Moses V. Katzen Verger, 369. 
 
 Moses V. MacFerlan, 659. 
 
 Moses V. Manhattan B. Co., 151. 
 
 Moses V. Mead, 370. 
 
 Mosler v. Stoll, 311. 
 
 Mosisett V. McPSde, 272. 
 
 Mosley v. Chamberlain, 117. 
 
 Moss V. Pacific B. Co., 125. 
 
 Mostyn v. Pabrigas, 135, 239. 
 
 Motes V. Bates, 396. 
 
 Mott V. Comstock, 302. 
 
 Mott V. Consumer's Ice Co., 110. 
 
 Mott V. Dawson, 321, 336. 
 
 Mott V. Shoolbred, 528. ' 
 
 Moulton V. Aldrich, 891. 
 
 Mount Vernon v. Dnsonchett, 968. 
 
 Mouse's case, 200. 
 
 Mower v. Sliekney, 142. 
 
 Mower v. Watsoi^, 329. 
 
 Mowers v. Pethers, 651. . 
 
 Mowey v. Walsh, 414. 
 
 Mowrey ». Wood, 220. 
 
 Mowry v. Chase, 260. 
 
 Mowry v. Whipple, 394. 
 
 Moxham, The mT, 237, 238, 239. 
 
 Moynihau v. Hills Co., 124. 
 
 Mugridge v. EveiettJ, 424, K2. 
 
 Mulcairns v.,JanesTilie,69, 636. 
 
 Muldoon V. Eickey, 398. 
 
 Muilan V. Phila. & S. M. S. S. Co., 123. 
 
 Mnllan v. Steamship Co., 91. 
 
 Mullen V. St. John, 634, 638. 
 
 Mullen V. Strieker, 509. 
 
 Mulligan v. Cole, 313. 
 
 Mulligan V. New York 4; R. B. E. Co., 106. 
 
 MuUiner v. Florence, 444. 
 
 Mnlvehall v. Mlllward, 278. 
 
 Mulvey v. Ehode Island Locomotive 
 
 Works, 124. 
 Mnmby v. Bowden,91. 
 Mumford v. Oxford etc. R. Co., 529. 
 Mumtord v. Whitney, 458. 
 Mundorffi v. Wiokersham, 112, 384. 
 Mundy V. Wight, 828. ' 
 Munger v. Hess, 61. 
 Mnnns v. Dnpont, 394. 
 Munster v. Lamb, 330. 
 Murdock V. Boston & A. R. E. Co., 68. 
 Murphy v. Boston & A. R. Co., 124. 
 Murphy V. Central Park E. Co., 110. 
 Murphy v. Chicago, etc. E. Co., 244. 
 Murphy v. Deane, 646, 648. 
 Murphy v. Hobbs, 234, 393. 
 Murphy v. Lincoln, 483. 
 Murphy v. Lowell, 69. 
 Murphy v. Martin, 265. 
 Murphy v. Orr, 534. 
 Murphy «. Eamsey; 148. 
 Murphy v. Stout, 824. 
 Murphy v. Wilson, 230. 
 Murray v. Archer, 520. 
 Murray v. Baker, 343. 
 Murray v. BecUwlth, 356. 
 Murray v. Boyne, 201. ) 
 Murray v. Ourrle, 88, 95. 
 
 Murray v. Gibson, 639. 
 
 Murray v. Hall, 449. 
 
 Murray v. Hay, 528. 
 
 Murray v. McShane, 567. 
 
 Murray v. South Carolina E. Co., 116, 611. 
 
 Murry v. McAllister, 294. 
 
 Muse V. Stem, 94. 
 
 Mnsgrave v. Chung Tecong Toy, 136. 
 
 Musgroye v. St. Louis Church, 603. 
 
 Musselmani>. Marquis, 225. 
 
 Mussey v. Cummlngs, 142, 479. 
 
 Mut. Ben. Life Ins. Co. v. Cannon, 353. 
 
 Mnt. Ben. Life Ins. Co. v. Bobei:t3on,3S2. 
 
 Myers v. Gemmel, 509. 
 
 Myers v. Gilbert, 114. 
 
 Myles V. Myles, 26. 
 
 Nagel V. Allegheny Valley E. Co., 585. 
 
 Nagel V. Railroad, 574. 
 
 Nail V. Louisville, etc. E. Co., 123. 
 
 Narehood v. Wilhelin, 478. 
 
 Nash v. Lucas, 474. 
 
 Nash V. Minnesota T. G. Co., 357. 
 
 Nashville &C. B. Co. v. Stames, 87, 108. 
 
 Nashville etc. E. Co. v. Canull, 134. 
 
 Nashville etc. E. Co. v. Davis, 605. 
 
 Nashville etc. R. Co. v. DUiott, 193. 
 
 Nashville etc. R. Co. v. Jones, 124. 
 
 Nashville, etc., B. Co. v. King, 606. 
 
 Nat. Bank v. Graham, 67, 68. 
 
 Nat. Bk. of Metropolis v. Sprague, 271. 
 
 National Copper Go. v. The Minnesota 
 
 Mining Co., 153. 
 Nat. Ins. Co. v. Minch, 384. 
 Natoma etc. Co. v. Clarkln, 225, 482. 
 Nat. Provincial Plate Glass Ins. Co. v. 
 
 Prudential Assurance Co., 511. 
 Nat. Eeserve Fund Lite Assn. v. Spec- 
 
 tatur Co., 66. 
 Nanman v. Oberle, 367. , 
 Neal V. GlUett, 61. 
 Neal V. Hart, 267. 
 Neal V. Heniy, 505. 
 Neal V. Joyner, 263. 
 Neal V. State, 119. 
 Neal V. Wilcox, 642. 
 Nebb V. Hope, 834. 
 Nebenzabl v. Townsend, 395. 
 Neib ■». Hope, 287, 324. 
 Needham v. Grand Tr. E. Co., 81, S3. 
 Needham*. Lonisville & N. B. Co., 543, 
 
 552 
 TSeft'v. Landls,680. 
 Negley v. Farrar, 310, 318. 
 Nehx V. State, 613. 
 Nehrbas v. Central Pao. E. Co., 557. 
 Nelson v. Barcheuius, 313. 
 Nelson v. Chicago, etc., Ey. Co., 45, 164, 
 
 542, 
 Nelson v. Danlelson, 399. 
 Nelson v. Liverpool Brewery Co., 531. 
 Nelson v. Masgroove, 287. 
 Nelson v. Stewart, 611. 
 Nemitz v. Conrud, 261. 
 Neate v. Penman, 146. 
 W. E. R. Co. V. Wanless, 590. 
 Ncsbet V. Sawyer, 224. 
 Ness V. Hamilton, 334. 
 Neth V. Crofat, 262. 
 Nettleton v. Sikes, 4S9. 
 
TABLE or CASES CITED. 
 
 725 
 
 The Sefei-euces are to Pagres. 
 
 Neuert v. Boston, 69. 
 
 Newfeia V. Beldler, 660. 
 
 Nevitt V. Gillespie, 430. 
 
 New Albany etc. it. Co. e. Peterson, 178. 
 
 Newark Aquednot Boiurd v. City o( 
 
 Passaic, 522. 
 Newark Coal Co. v. UpBOn, 399. 
 Kewbury v. Munshower, 262. 
 Newell V. Cowan, 234. 
 Newell V. Randall, 369. 
 New England Dredging Co. v. Eockport 
 
 Granite Co., 87. 
 New England Exp. Co. v. Maine Cent. 
 
 R., 650. 
 New Jersey etc. E. Co. r. Tonng, 194. 
 New Jersey Express Co. v. Nichols, 544. 
 Newhall v. Kingsbury, 48'2. 
 Newklrk v. Sabler, 10, 201, 422, 469. 
 Newman v. Alvord, 184. • 
 Newman v. Eichardson, 114. 
 Newman v. Sylvester, 384. 
 Newmeister v. Dubuque, 271. 
 New Orleans & N. K. K. Co. v. Reese, 92. 
 New Orleans, etc. R. Co. v. Field, 610. 
 New Orleans, etc., R. Co. v. Hanning, 
 
 103. 
 New Orleans etc. R. Co. v. Hngbes, 135. 
 New Orleans etc. v. B. Co. v. Hurst, 656. 
 New Orleans, etc., R. E. Co. v. Norwood, 
 
 91. 
 New Orleans etc. R. Co. <i. Statbam 
 
 619. 
 New Orleans Gas Light Co. v. Louisiana 
 
 Light Co., 499. 
 Newport News & M. V. R. Co. v. Old 
 
 Colony E. Co., 123. 
 Newsom V. Anderson, 422. 
 Newsom v. Jackson, 81. 
 Newton v. Harland, 468. 
 Newton v, Locklin, 262. 
 Newton v. Weaver, 39S. 
 New World v. King, 542. 
 New York and C. M. S. & Co. ». Eogers, 
 
 552. 
 New TorkA N. Ey. Co. c. New York & N. 
 
 E. E.Co.,651. 
 New York B. & P. Co. v. Gutta Percha & 
 
 E. Mfg. Co., 225. 
 New York etc. E. Co. v. A. R, Co.,59L 
 New York etc. R. Co. v. Bell, 124. 
 New York etc. E. Co. v. City ol llochester, 
 
 522. 
 NewYork, etc. E. Co. ■». Lyons, 193. 
 New York etc., E. Cc. v. Schuyler, 67, 
 
 225. 
 New York, etc. E. Co. v. Skinner, 544. 
 New York, etc, E. Co. v. Steinbrenner, 
 
 94, 649. 
 New York, L. E. & H. E. Co. v. Harrirg, 
 
 105. 
 New York P. & D. Establishment, 482. 
 Niantic C. & M. Co. v. L«onhard, 120. 
 Nichols V. City of Dnluth, 157. 
 Nicholson ». Janeway, 369. 
 Nichols V. Jones, 223. 
 Nichols V. Marsland, 161, 606, 607. 
 Nichols V. Michael, 369. 
 Nichols V. Howling, 2S2. 
 Nichols V. State, 651. 
 Nicholson V. New York, etc., B. Co., 211. 
 Nickleson v. Stryker, 277. 
 Nidover v. Hall, 298. 
 Nl!!;ht V. Goodyear, etc. Mfg. Co., 495. 
 Nlles V. How, 238. 
 
 Nlpp V. Wiseheart, 248. 
 
 Nissen v. Cramer, 3S8. 
 
 Nitro-glycerlne Case, 164, 173. 
 
 Nitro-glycerine Case, The, 604, 619. 
 
 Nix ». Caldwell, 332. 
 
 Nix V. Texas & P. R, Co., 123. 
 
 Noble V. McFai-land,.447. 
 
 Noblesville, etc., Co. v. Gause, 108. 
 
 Noeninger v. Vogt, 334. 
 
 Noice V. Brown, 275. 
 
 Nolan V. Jones, 61. 
 
 Nolan V. New York, etc. E. Co., 513. 
 
 Nolan V. Traber, 64. 
 
 Noonan v. Albany, 71. 
 
 Noonan » . New York, etc., E. Co., 121. 
 
 Noonan v. Orton, 399. 
 
 Norcross v. Nnnan, 141. 
 
 Norcross v. Thorns, 502, 504, 506. 
 
 Norden v. Jones, 658. 
 
 Norfolk & P. E. Co. v. Ormsby, 585. 
 
 Norfolk & W. E. Co. V. Groseclose's 
 
 Admr., 683. 
 Norfolk & W. E. Co. v. Jackson, 193. 
 Norfolk & W. E. Co. v. Lipscomb, 223. 
 Norfolk etc. E. Co. v. Budge, 638. 
 Norfolk etc E. Co. v. Ormsby, 587. 
 Norrel v. Vogel, 396. 
 Norris v. Baker, 613. 
 Norrls V. Hall, 439. 
 Norris w. Vance, 60. 
 North American D. & 1, Co. v. The River 
 
 Mersey, 98. 
 North Carolina v. Temple, 136. 
 North Chicago E. M. Co. v. Johnson, 
 
 121. 
 Northcote v. Smith, 473. 
 North Eastern R. Co. v. Wanless, 553. 
 Northern Cent. E. Co. v. Canton Co., 
 
 312. 
 Northern Pac. E. Co. v. Herbert, SS, 99, 
 
 124. 
 Northern P. E. Co. v. Lewis, 450. 
 Northern P. E. Co. v. O'Brien, 121. 
 Northern R. R. Co. v. Paine, 432. 
 North Side Street Ry. Co. u. Tippins, 
 
 545. 
 North Vernon v. Voegler, 69. 
 Northwestern E. Co. v. Hack, 101. 
 Norton, The E. M.. 96. 
 Norton v. Craig, 639. 
 Norton v. Eastern It. Co., 656. 
 Norton V. Sewall,621. 
 Norton V. Wiswall, 630. 
 Norvell v. Gray, 422. 
 Norwood V. Dlekey, 506. 
 Norwood V. Gonzales County, 243. 
 Nott V. Stoddard, 334. 
 Nottingbam v- Baltimore & Potomac 11. 
 
 Co., 488. 
 Netting Hill, The, 683. 
 Nowell V. Tripp, 262. 
 NowUu V. Whipple, 462. 
 Noyes v. Hall, 295.' 
 Noyes v. Loring, 6B8, 660. 
 Noyes v. Shepherd, 537. 
 Nugent V. Boston, C. & M. R. Corp., 552. 
 Nugent V. Smith, 605, 656. 
 Nunnally v. Taliaferro, 346. 
 Niittall V. Biaoewell,464. 
 N. Y. & W. P. T. Co. V. Dryburg, 674, 
 
 675. 
 Nyberg v. Handelaar, 445. 
 >ye». Merriman, 375. 
 :> . Y. etc. B. Co. V. Skinner, 611. 
 
726 
 
 TABLE OP CASES CITED. 
 
 The Beferenceg are to Pages. 
 
 o. 
 
 Oabey v. Dalton, 76. 
 
 Oakland City A. & I. Soo. v. Bingham 
 103. 
 
 O'Brien v. Barry, 395. 
 
 O'Brien v. Cavanangh, 453. 
 
 O'Brien v. St. Paul, 69. 
 
 O'Oonnell v. Baltimore etc. E. Co., 1'23. 
 
 O'Conner v. O'Conner, 311. 
 
 O'Connor v. Andrews, 621. 
 
 Occam Co. v. Sprague etc. Co., 182. 
 
 Ocean Steamship Co. v. Cheyney, 120. 
 
 Ochsenheln v. Shapley, ^03, 101. 
 
 Odell V. Salomon, 621. 
 
 Odon V. Weathersbee, 417. 
 
 O'Donagheelir. McGovern, 339. 
 
 O'Donnell v. A. V. B., 629. 
 
 Ofstle V. Keely, 189. 
 
 Ogden V. Claycomb, 206, 256. 
 
 Ogden V. Eiley, 296; 
 
 O'Hanlon v. Myers, 301. 
 
 Ogilvie V. Knox, 360. 
 
 Ohio etc. R. Co. v. Collarn, 514. 
 
 'Ohio Elver R. Co. v. Ward, 182. 
 
 Oil V. Rowley, 473. 
 
 Oil City Gas Co. v. Robinson. 620. 
 
 Oil Creek, etc. R. Co. v. Keiglirbn, 99. 
 
 Oldham v. Sparks, 26. 
 
 Olds V. Chicago etc., 134. 
 
 Oliver v. Berry, 243. 
 
 Oliver o. LaValle, 55. 
 
 Oliver v. ioftln, 516. 
 
 Oliver V. McLellan, 61. 
 
 Oliver v. Perkins, 230. 
 
 Oliver V. White, 112. 
 
 Olmstead v. Uoland, 267. 
 
 'Olmsted V. Miller, 293. 
 
 Olmsted V. Rich, 491. 
 
 Olrleh V. Stohrer, 632. 
 
 Olson V. Clyde, 122. 
 
 Olson V. Neal, 395. 
 
 Olson V. Orton, 378. 
 
 Omaha v. Jensen, 69. 
 
 Omaha A. & S. Co. v. Rogers, 131. 
 
 Omaha & R. V. Co. v. Brown, 2J4. 
 
 Omaha etc. R. Co. v. Janecek, 154. 
 
 Omaha etc. R. Co. v. Standen, 195. 
 
 Omalja etc. Co. v. Tabor, 439. 
 
 m'Malley v. St. Paul, tfL. & M. Ey. Co., 685. 
 
 O'Mara v. Hadson River R. Co., 556. 
 
 Onderdonk v. Smith.'624. 
 
 O'Neil V. Johnson, 399. 
 . Orange etc. H. R. Co. v. Ward, 552, 557. 
 
 O'Reer v. Strong, 658. 
 ■ O'RileyB. Diss. 611. 
 
 Ormerod v. Todmorden Mill Co., 464. 
 
 Ornsby v. Douglass, 336. 
 
 Orne v. Roberts, 614. 
 
 O'Rourke v. Hart, 92. 
 
 Orr V, Home Mutual Ins. Co., 132. 
 
 Orr V. Llttlefleld, 225. 
 
 Ortmau v. Greenman.lll. 
 
 Osborn v. Glllett, 74, 75, 273. 
 
 Osborn v. McMaster, 99. 
 
 Osbern v. Morgan, 84. 
 
 Osgood V. Lewis, 370. 
 
 O'Sbanghnessy v. Baxter, 142. 
 
 Ostrom V. Calkins, 300, 
 
 Ostatage v. Tayior,46fi. 
 
 Oswald V. McGehee, 376. . 
 
 Oswego Starch Factory v. Lendrnm, 369. 
 
 Ottenot V. N. y., L. &. W. R. Co., 4S6. 
 
 Owen V. Field, 459. 
 
 Owen V. O'Reilly, 213. 
 
 Owen V. Phillips, 485. 
 
 Owens V. Railroad Co., 646. 
 
 Owens V. Snodgrass, 63. 
 
 Owsley V. Montgomery, etc. E. E. Co., 
 
 Oxford V. Peter, 110. 
 
 Oxley». Watts, 479. 
 
 Ozark Land Co. v. Leonard, 468. 
 
 P. 
 
 Pace V. Aubrey, 392 
 
 Pach V . Goeffroy , 501. 
 
 Pacific Ins. Co. v. Conard, 223. 
 
 Paddock v. Somes, 522, 
 
 Paddock v. Strobridge, 369. 
 
 Paddock v. Watts, 394, 398. 
 
 Padgett V. Sweelting, 324. ' 
 
 Padmose v. Pietz, 151. 
 
 Paducah, etc. E. Co. v. Hoehl, 567. 
 
 Paducah etc. R. Co.s. Letcher, 537. 
 
 Pafl V. Slack, 614. 
 
 Page V. Bent, 354. 
 
 Page V. Branch, 447. 
 
 Page V. Cashing. 399. 
 
 Page V. Du Puy, 142. 
 
 Page r. Freeman, 230. 
 
 Page V. Mille Sacs L. Co., 4S6. 
 
 Page V. Parker, 403. 
 
 Page V. Wells, 642. 
 
 Paine v. Chandler, 182. 
 
 Paine v. Farr, 223. 
 
 Paine v. Northern P R. Co., 404. 
 
 Painter v. Ives, 265. 
 
 Paland v. Chicago, etc. R. Co., 192. 
 
 Palatka etc. E. Co. *. State, 487. 
 
 Pullet V. Sargent, 321. 
 
 Palmer v. Chicago etc. E. Co., 252. 
 
 Palmer v. Concord, 332, 333. 
 
 Palmer V. Denver, etc. R. Co.,' 192. 
 
 Palmer r. Gallup, 211. 
 
 Palmer v. Harris, 308. 
 
 PaliAer v. London, 93. 
 
 Palmer r. Manhattan R. Co., 106. 
 
 Palmer v. Mich. Cent. R. Co., 123. ^ 
 
 Palnierii. Thorpe, 298. 
 
 P, A J. R. V. Reynolds, 629. 
 
 P. & R/I. R. V. Laue, 629. 
 
 Pangburm v. Bull, 393. 
 
 Pantzar v. Tilly Foster Min. Co., 117. 
 
 Papot V. Trowell, 243. 
 
 Pappa V. Rose, 140. ' 
 
 Pariio V. Bingham, 243. 
 
 Parham v. Randolph, 378. 
 
 Parish v. Kaspare, 454. 
 
 Park V. Detroit Free Press Co., 336. 
 
 Park V. Hopkins, 61. 
 
 Parke v. City of Seattle, 157. 
 
 Parker v. Elliott, 279. 
 
 Parker v. First Avenue Hotel Co., 511. 
 
 Parker v. First Nat, Bank, 134. 
 
 Parker v. Flagg, 606, 
 
 Parker v. Foote, lii6, 509. 
 
 Parker v. Frambes. 398. 
 
 Parkers. Georgia P. Ry. Co., 567. 
 
 Parker v. Lanier, 220. 
 
 Parker v. Lewis, 294, 305. 
 
 Parker v. Lacks & Canal, 417. 
 
 Parker v. McQueen, 336. 
 
 Parker v. Meek, 279. 
 
 Parker v. Mise, 9. 
 
TABLE OF CASES CITED. 
 
 727 
 
 The References are to Pages. 
 
 Parier v. Union Woolen Works, 495. 
 
 Parker v. Winnlpeseogee Co., 4b2. 
 
 Parker «. Presoott, 310. 
 
 Parkham v. Decatur, 199. 
 
 Parkhurst v. Ketchum, 333, 347. 
 
 Parkins v. Scott, 292, 317. 
 
 Parlement Beige, The, 137. 
 
 Parmer v. Anderson, 297. 
 
 Parmlee v. Leonard, 142. 
 
 Parinlee v. Adolph, 375. 
 
 Parnell v.. Whiter, 346. 
 
 Parrish v. Pensacola & A. R. Co., 120. ' 
 
 Parrott v. Floyd, 489. 
 
 Parrott v. Hartsfleld, 202. 
 
 Parrott v. Housatonic B. Co., 519. 
 
 Parrott- 1>. Wells, 538. 
 
 Parry v. Smith, 621. 
 
 Parsons v. Brown, 204. 
 
 Parsons v. Hardy, 606. * 
 
 Parsons v. Martin, 683. 
 
 Parsons V. Winchell, 100. 
 
 Partlow V. Haggarty, 614. 
 
 Partridge v. General Council etc., 148. 
 
 Parvls u.Phila. W. & B. li. Co., 656. 
 
 Pasley v. Freeman, 359, 381. 
 
 Pastene v. Adams, •62r. 
 
 Pastime v. Adams, 574. 
 
 Pastorius 1». Fisher, 518. 
 
 Patch V. The Tribune Assoc , 311. 
 
 Patrick v. Colerick, 470. 
 
 Patten v. Marden, 225. 
 
 Patten v. Wiggins, 26. 
 
 Patterson v. IJ'Auterive, 148. 
 
 Patterson v. Detroit, etc., R. Co., 24. 
 
 Patterson v. Frazer, 63. 
 
 Patterson v. Hayden, 281. 
 
 Patterson v. Liii'pincott, 660. 
 
 Patterson v. Nailer, 150. 
 
 Patterson B. Pittsburgh, etc. R. Co., 194. 
 
 Patterson v. Shaw, 136. 
 
 Patterson v. South* N. A. B. Co., 220. 
 
 Patterson v. State, 323. 
 
 Patterson v. Thompson, 278. 
 
 Patterson v. Westervelt, 214. 
 
 Patton V. Holland, 493.. 
 
 Patton V. People, 255, 257. 
 
 Patzack v. Van Geriohten, 138. 
 
 Paul V. Halferty, 304. 
 
 Paul V. Slason, 214. 
 
 Paul V. Summerhayes, 477. 
 
 Paulmier v. Erie B. Co., 82. 
 
 Paw V. Beckner,2f)2. 
 
 Paxton V. Bayer, 153. 
 
 Payne v. Allen, 151. 
 
 Payne v. Donegan, 399. 
 
 Payne v. Green, 141. 
 
 Piiyne v. Humeston & S. By. Co., 583. 
 
 Payne v. McKinley, 488, 489. 
 
 Payne v. Smith, 367. 
 
 Payne v. Taylor, 323. 
 
 Payson v. MacOmber, 260. 
 
 P. C. & St. L. B. Oo. V. Sponier, 211. 
 
 Pearl v. Walter, 376. 
 
 Pearson v. Duane, 651. 
 
 Pearson v, Inlow, 412, 
 
 Pearsol v. Chapin, 658. 
 
 Pease v. Gloahec, 680. 
 
 Pease v. Sabin, 632. 
 
 Pease v. Smith, 439. 
 
 Peck ». Bank o( America, 245. 
 
 Peck V. Cooper, 67, 84. 
 
 Peck V. Derry, 364, 3d7; 
 
 Pecku. Elder, 504, 505,506. 
 
 Peck 17. Gerney, 84. 
 
 Peck V. Lockridge, 447. 
 
 Peck V. Martin, 27. 
 
 Peck V. Books, 264. 
 
 Peckham v. Henderson, 616. 
 
 Peckham v. Holman, 370. 
 
 Pedrech v. Porter, 356. 
 
 Peek V. Derry, 227. 
 
 Pjeek «. Gnrney, 227, 356, 374. 
 
 Peffley v. Noland, 358. 
 
 Peigne v. Sutcliffie, 61. 
 
 Pfells V. Snell, 243. 
 
 Pence v. Dozier, 278. 
 
 Pendarves v, Monro, 511. 
 
 Pendlebnrgh v. Greenhaigh, 94. 
 
 Pendergrast v. Foley, 245. 
 
 Penn. Co. v. Lvnch, 124. 
 
 Penn. CoalOo.ii. Sanderson, 153,-816,492. 
 
 Pennington v. Brinsop Hall Coal Oo. , 626. 
 
 Pennington v. Yell, 26, 
 
 Pennoyer v. Allen, 506. 
 
 Penn. R. Co. v. Hope; 504. 
 
 Penn. B. Co. v. Ogier, 533. 
 
 Pennsylvania Canal Oo. v. Bentley, 543, 
 644. 
 
 Pennsylvania Co. v. Lynch, 192. 
 
 Pennsylvania Co. v. Bay, 629. 
 
 Pennsylvania Co. v. Boney, 568. 
 
 Pennsylvania Co. etc. v. Pennsylvania 
 S. V. R. Co., 155. 
 
 Pennsylvania B. Co. v. Aspell, ?oS. 
 
 Pennsylvania B. Co. v. Atha, 624. 
 
 Pennsylvania B. Co. v. Fries, 606. 
 
 Pennsylvania E. Oo. v. Garvey, ?\hl. 
 
 Pennsylvania E. Co. v. Hoaglaiid, 656. 
 
 Pennsylvania E. Co. v. Hope, 42. 
 
 Pennsylvania Co. v. James, 585. 
 
 Pennsylvania B. Oo. v. Kerr, 29, 42, 44. 
 
 Pennsylvania B. Co. v. Kiilips, nbHi. 
 
 Pennsylvania B. Co. v. Ogier, 378. 
 
 Pennsylvania E. Co. v. BIghter. 544. 
 
 Pennsylvania E. Co. v. Toomey, lOo. 
 
 Pennsylvania E. Co. v. Vandivcr, 105. 
 
 Pennsylvania S. V. B. Co. v. W:ilsh, 157. 
 
 Pennsylvania E. Co. v. Weber, 540. 
 
 Penrlce v. Wallace, 199. 
 
 Penrose v. Curren, 62. 
 
 Penrose v. Nixon, 622. 
 
 Penruddocks Ca., 493, 531. 
 
 Pensacola Gas Co. v. Pebley, 505. 
 
 People V. Albany, etc., E. Co., 67. 
 
 People V. Cooper, 149. 
 
 People V. Crannse, 485. 
 
 People V. Dann, 255. 
 
 People V. Flack, 402. 
 
 People V. Hubbard, 471. 
 
 People V. Lennon, 266. 
 
 People V. Lilley, 252, 253. 
 
 People V. Pearl, 257. 
 
 People V. BIchards, 308. 
 
 People V. Eockwell, 45. 
 
 People V. Sands, 486, 603. 
 
 People V. Sergeant, 504. 
 
 People V. Sheldon, 402. i 
 
 People V. Sherwin,449. 
 
 People V. Supervisors of San Francisco, 
 
 360. 
 People V. Talmage, 136. 
 People V. White Lead Works, 498. 
 People ». Yslas, 268. 
 Peoples V. Smith, 264. 
 Peoples Gas Co. v. Tyner, 178. 
 People, The, v. Fisher, 410. 
 Peoria Bridge Assn. v. Loomis, 537. 
 Peoria, etc., Ins. Co. v. frost, 81. 
 
728 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Percival v. Harree, 402. 
 
 Percy ». Clavy, 232. 
 
 Perdne v. Barn ett, 296. 
 
 Perham v. Ooney, 443. 
 
 Perkins v. Mitchell, 328, 386. 
 
 Perkins v. Eogg, 284. 
 
 Parley v. Eastern B. Co., 44. 
 
 Perret v. N. O. Times Newspaper, 310, 
 318. 
 
 Perrln v. Wells, 217. 
 
 I'errin ». Taylor, 505. 
 
 Perry v. Fitzhowe, 513, 514. 
 
 Perry v. jLovejoy, 272. 
 
 Perry v. Uann, 812. 
 
 Perry v. Smith, 591. 
 
 Perryman v. Lister, 268. 
 
 Pesohel v. Chicago etc R. Co., 122. 
 
 Peter v. Blocker, 275. 
 , Peters v. Lake, 273, 274, 281. 
 
 Peters v. Peters, 64. 
 
 Peters v. Tureil, 399. 
 
 Peterson v. Haffner, 35, 61, 186, 248. 
 
 Peterson v. Sentman, 313. 
 
 Peterson ». Toner, 392. 
 
 Peterson v. Whitebreast 0. & M. Co., 122. 
 
 Petrie v. Columbia & G. B. Co., 538. 
 
 Petrie v. Hose, 324. 
 
 Petrie v. Williams, 434. 
 
 Pettibone v. Simpson, 293. 
 
 Pettigrew v. Evansville, 225. 
 
 Pettit V. Cowherd, 468. 
 
 Petty V. Hannibal etc. B. Co., 557. 
 
 PQngst V. Seun, .521. 
 
 Pflster V. Gerwig, 667. 
 
 Fhelin v. Kenderline, 281. 
 
 Phelps V. Consins, 610. 
 
 Phelps V. James, 350. 
 
 Phelps V. Lill, 138. 
 
 Phelps V. Nowlen, 153. 
 
 Phelps V. Walte, 84. 
 
 Philadelphia & E. R. Co. v. Derby, 110. 
 
 Philadelphia etc., R. Co. v. Anderson, 
 605. 
 
 Philadelphia, etc. R. Co. v. Frank, 544. 
 
 Philadelphia etc. R. Co. v. Hoeflloh. 220. 
 
 Philadelphia, etc. R. Co. v. Schertle, 644.N 
 
 Philadelphia etc. R. Co. v. Bpearen, 568. 
 
 Philadelphia etc. H. Co. v. Stibbing, 645. 
 
 Philadelphia etc. R. Co. v. Terger, 562. 
 
 Philadelphia, W. & B. R. Co. v. Phila- 
 delphia, etc., Towboat Co., 99. 
 
 Philadelphia, W. & B. E. Co. v. Quigley, 
 67, 220. 
 
 Philbrick v. Foster, 201, 256. 
 
 PhiUppi V. Wolf, 271, 274. 
 
 Philips V. City of Denver, 506. 
 
 Philips V. Fadden, 262. 
 -Phillips V. Allen, 633. 
 
 Phillips V. Ayre, 135. 
 
 Phillips V. Barnet, 65. 
 
 Phillips V. Bordman, 216. 
 
 Phillips V. Dewald, 564. 
 
 Phillips V. DickersoD, 30, 42. 
 
 l^hilllps •». Eyre, 238, 239, 240. 
 
 Phillips V. Uoaifray. 83. 
 
 Phillips V. Hoyle, 281. 
 
 Phillips ». Kelley, 20B, 235. 
 
 Phillips V. L. & S. W. R. Co., 212, 219. 
 
 Phillips V. Phillips, 64. 
 
 Phillips V. Richardson, 64. 
 
 Phillips V. State, 506. 
 
 PhcBnlx Ins. Co. v. Moog, 403. 
 
 Flckard v. Collins, 504,509. 
 
 Fickard -o. McCormack, 356. 
 
 PJokard v. Smith, 625. 
 
 Pickens v. Diecker, 99. 
 
 Pickering ii. James, 149. 
 
 Pickering v. Rudd, 423. 
 
 Pickett V. Orooke, 519. 
 
 Pierce v. German Law &. Loan Soc, 530. 
 
 /Pierce v. Guittard, 225. 
 
 Pierce v. Hubbard, 264. 
 
 Pierce v. Thompson, 392, 399. 
 
 Pierce v. Wood, 114. 
 
 Plerson v. Gale, 265. 
 
 PiSgott «. E. O. R. Co., 608. 
 
 Pike V. Bright, 658. 
 
 Pike V. Chicago & A. R. Co., 121. 
 
 Pike V. Fay. 358. 
 
 Pike V. Grand Trunk Ry. Co., 644. 
 
 Pike V. Hanson, 260. 
 
 Pike V. Megoun, 145. 
 
 Pike V. Van Wormer, 299. 
 
 Pilcher V. Hart, 484, 500. 
 
 Pilcher v. Rawlins, 415. 
 
 Pilgrim V. Southampton etc. K. Co., 483. 
 
 Pink V. Catniok, 298. 
 
 Finkerton v. Manchester R. Co,, 683. 
 
 Pinkerton v. Woodward, 651. 
 
 Finney u. Berry, 619. 
 
 Floll^t V. Simmers, 545. 
 
 Piper ». Board, 245. 
 
 Piper D. Pearson, 138. 
 
 Pippin V. Sbeppard, 648. 
 
 Pitford ». Armstrong, 201, 257. 
 
 Plttard V. Oliver, 343, 344. 
 
 Flttock V. O'Niell, 312, 343. 
 
 Pitts V. Hale, 61. 
 
 Pittsburg, A. & M. By. Co. v, Pearson, 583. 
 
 Pittsburg etc. R. E. Co. v. Andrews, 652. 
 
 Pittsburgh, etc. R. Co. v. Collins, 633. 
 
 Pittsburg, etc. R Co. v. Evans, 543. 
 
 Pittsburg, etc., R. Co. v. Gilliland, 605. 
 
 Pittsburg etc. R. Co. v. Hine, 228. 
 
 Pittsburg, etc., R. Co. «. Kirk, 104. 
 
 Pittsburg etc. R. Co., v. Martin, 556. 
 
 Pittsburg, etc., B. Co. v. Noel, 44, 197. 
 
 Pittsburg, etc. R. Co. v. Robrman, 667. 
 
 Pittsburg, etc., R. Co. 4i. Shields, 110. 
 
 Pittsburg etc. R, Co. v. Taylor, 37, 545. 
 
 Planters' Rice Mill Co. v. Olmstead, 68. 
 
 Piatt V. Brown, -471. 
 
 Pleasants v. Faut, 544. 
 
 Pledger v. Hatbcock, 298. 
 
 Plimmer v. Mayor of Wellington, 468. 
 
 Plumer v.- Harper, 630. 
 
 Plumley v. BirgC, 884. 
 
 Plummer v. Brown, 438. 
 
 Plummer v. Herbut, 223. ' 
 
 Plummer v. Johnson, 394. 
 
 Plummer v. Webb, 275. 
 
 Poeppers v. M. E. & P. I^. Co., 44. 
 
 Poindexter v. Henderson, 430. 
 
 Poland V. Earhart, 45. 
 
 Poland V. Miller, 631. 
 
 Polhill V. Walter, 355, 373. 
 
 Polk V. Lane, 611. 
 
 Pollard v. Baldwin, 143. 
 
 Pollard V. Lyon, 289, 298. 
 
 Pollasky v. Minchener, 833, 336. 
 
 Pollock V. Eastern R. Co., 556. 
 
 Polock V. Pioche, 606. 
 
 Pomeroy v. yillavossa, 393. 
 
 Pond V. Metropolitan £. R. Co., 609. 
 
 Pond V. People, 256. 
 
 Pontlf ex V. Bign'old, 216. 
 
 Ponton V. Wilmington, etc.; R. Co., 117. 
 
 Pool V. Devers,' 324. 
 
TABLE OF CASES CITED. 
 
 729 
 
 The References are to Pages. 
 
 Pool V. mtchell, 452. 
 
 Pool V. Southern P. R. Co., 121. 
 
 Porterfleld v. Bond, 491. 
 
 Porter v. Botkins, 321. 
 
 Porter v. D.iy, 660. 
 
 Porter v. Dunn, 271. 
 
 Porter v. Hannibal E. Co., 193. 
 
 Porter v. Silver Greet & M. C. Co., 125. 
 
 Porter v. The C. E. J. & P. E. Co., 107. 
 
 Porter v. Thomas, 81. 
 
 Porter v. Wright, 361. 
 
 Posey i;. Scovule, 637. 
 
 Post Fab. Co. V. Maloney, 295, 329. 
 
 Potter V. Brown, 211. 
 
 Potter V. Faulkner, 126, 168. 
 
 Potter V. Horan, 531. 
 
 Potter V. Muller, 225. 
 
 Potter V. Neal, 118. 
 
 Potter V. t«eale, 395. 
 
 Potter V. Warner, 27. 
 
 Potts V. Hines, 213. 
 
 Potts V. Imboy, 398. 
 
 Potts V. Smith, 610. 
 
 Potts V. W. U. Tel. Co., 55. 
 
 Pottstown Gas Co. v. Mnrphy, 505. 
 
 Poalk V, Slocam, 265. 
 
 Poultou V. L. & S. W. E. Co., 108. 
 
 Poanderc. N. E. E Co., 555. 
 
 Powder Co. v. Tearney, 196. 
 
 Powell V. Bentley & Gerwig Furniture 
 
 Co., 191, 5 8, 522. 
 Powell V. Deveney, 19, 110. 
 Powell V. Fall, 617. 
 Powell V. Macon & I. S. E. Co., 521. 
 Powell V. Sims, 509. 
 Powers, In re, 262. 
 
 Powers V. Boston Gas Light Co., 620. 
 Powers V. Gary, 327. 
 Powers V. City of Council Bluffs, 519. 
 Powers V. Craig, 617. 
 Powers V. Harlow, 586, 627. 
 Powers V. Lewis, 7Q. 
 Powers V. Pine, 311. 
 Powers V. PresRroTes, 323, 317. 
 Powys V. Blagrave. 128. 
 Pozzl V. Shipton, 652, 6S1. 
 Praed v. Graham, 316. 
 Prall V. Lull, 252. 
 Pratt V. Atlantic etc. K. Co., 501. 
 Pratt v. Gardner, 138. 
 Pratt e. Philbrook, 375. 
 Pratt V. Pioneer Press Co., 318. 
 Pratt V. Wells, Fargo etc., 538. 
 Prentice v. Village, 192. 
 Presby v. Grand Trunk Ey., 531. 
 Presoott V. Fonsey, 307. 
 Prescott ». Norris, 61. 
 Presoott V. Tansey, 328. 
 Pros., etc., Bult., etc., Eoad v. Leonhardt, 
 
 637. 
 President v. Moore, 523. 
 Presland v. Bingham, 512. 
 Press Co. v. Stewart, 317. 
 Ptesser v. State, 236. 
 Pressey v. Wixth, 611. 
 Preston v. Frey, 329. 
 Pretty v. Bickmore, 531. 
 Prettyman v. Dean, 471. 
 Premltt v. State, 150. 
 Prideaux v. Mineral Point. 569. 
 Priestley v. Fowler, 115. 
 Prince v. Case, 403. 
 Prince v. Grautz, 185. 
 Prlntup V, Patton, 230. 
 
 Prlntup V. Smith, 241. 
 Proctor V. Adams, 199, 175. 
 Proctor V. McCoid, 376. 
 Proctor V. Owens, 295. 
 Proctor V. Webster, 339. 
 Piopson V. Leathern, 125. 
 Prosser v. Callls, 291. 
 Prough V, Emtriken, 396. 
 Prnner v. Pendleton, 606, 
 Pryor v. Portsmouth Cattle Co., ■ 
 Pugh V. McCarty, 312. 
 Pulling V. G. E. K. Co., 77. 
 Pullman «. Hill & Co., 308, 309. 
 Puroell V. Lawler, 316, 322. 
 Purple V. Horton, 324. 
 Pursell V. Heme, 219. 
 Pursell V. Stover, 158. 
 Purvis V. Coleman, 514. 
 Put man v. Sullivan, 383. 
 Putnam v. Valentine, 221. 
 Putney v. Day, 461. 
 Pym V. G. N. E. Co., 79. 
 
 Q. 
 
 Qnarman v. Burnett, 95, 625. 
 
 Quartz Hill etc. Co. v. Beall, 226. 
 
 Quartz Hill Gold Mining Co. v. Eyre, 400. 
 
 Quick V. BllUer, 64. 
 
 Qulgley V. Central Pac. Ey. Co., 55. 
 
 Qnigley v. McKee, 295. 
 
 Qnilty V. Battle, 63. 
 
 Qnimby v. Blackey, 245. 
 
 QuiDcy p. Jones, 493. 
 
 Quinn v. Complete Eleotrlc.Co., 91. 
 
 Quinti V, Donovan, 27. 
 
 Qnina v, Ileisel, 262. , 
 
 Quinn V. Lowell Electric Light Corp.,186. 
 
 Qnlnn s.O'Gara, 294. 
 
 Quinn v. Power, 99, ICl. 
 
 Quirk II. Holt, 552. 
 
 E. 
 
 R. V. Catesworth, 249. 
 
 E. V. Duckworth, 251. 
 
 B. 1). James, 251. 
 
 E. V. Latimer, 171. 
 
 E. V. St. George, 251. 
 
 E. V. Train, 488. 
 
 EadcUff V. Mayor etc. of Brooklyn, 453, 
 
 600. 
 Eadley v. L. & N. W. E. Co., 670, 671, 578, 
 
 579. 
 Eallerty v. People, 112, 264. 
 Eaffey v, Henderson, 463. 
 EagsdaleiJ.'Barnca, 213. / 
 Eagedole v. Northern P. K. Co., 121. 
 Ball V. Potts, 118, 
 liailroad Co. v, Barron, 82. 
 Baiiroad Co. v. English, 197. 
 Eailroad Co. v. Gladman, 516, 569. 
 Baiiroad Co. v. Giitlirie, 46, 
 Baiiroad Co. v. Jones, 537. 
 Eailroad Co. w. Eeeves, 606. 
 Eailroad Go. v. Schuyler, 386. 
 Eailroad Co. v. Sohwlndling, 24. 
 Eailroad Go. ». Stont, 568, 584. 
 Eailway Co. v. Kellogg, 571. 
 Eaiubow V. Benson, 328. 
 
730 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Kaius V. St. L. etc. K. Co., 193. 
 
 Raj Cliunder v. Kay Shama Soondari 
 
 Uebi, 401. 
 Rajinobuu Base v. East India R. Co., 159. 
 Rammell v. Otis, 300. 
 Bamsden v. Bostou & A. B. Co., 67, 110. 
 Kamsdeu v. Dyson, 463. 
 Bauisey v. Arrott, 394. 
 z Ramsey v. Gould, 182. 
 ' Baud V. White Mis. B. Co., 683. 
 liaudall V. Brighaiu, 138, 3-28. ' 
 Randall v. Eastern B. Co., 70. 
 Randall v. Evening News Assoc., 313. 
 Bandall v. Hazelton, 44. 
 Randall v. Newson, 632. 
 Randlette v. Judkins, 24. 
 BandoK v. Town of Bloomfleld, S30. 
 Bandolph v. Hannibal & St. J. R. Co.^105. 
 Banger v. Goodricb, 294, 295, 298. 
 Bangler v. McCreight, 611. 
 Bankin v. Merchants & M. T. Co., 91. 
 Raukine v. Elliott, 311. 
 Ransom v. Citizens" Ry. Co., 156. 
 Bausome v. Christian, 324. 
 Eapp V. St. J. & I. E. Co., 569. 
 Bashdall v. Ford, 361. 
 Bathbum v. Emigh, 302. 
 Ratte V. Dawson, 5S3. 
 Bavencraft V. Missonri Fac. By, Co., 552. 
 Bawdon v, Blatchford, 357. 
 Bay V. Bnrbauk, 26, 621. 
 , Ray V. Law, 392. 
 Ray V. Lynes, 522. 
 Ray V. Sweelney, 509. 
 Ray V. Tubbs, 62. 
 liaymoud v. Fitch, 686. 
 Bayner v. Kinney, 324. 
 Bayner v. Mitchell, 102. 
 Rayner v. Nugent, 459. 
 Bayner v. Nims, 40, 220, 685 
 . Rea V. Harrington, 295. 
 Bea V. Sheward, 474. 
 Rea V. Tucker, 281. 
 Bead V. Coker, 252. 
 Bead V. Edwards, 612, 613. 
 Bead v. G. E. B. Co., 80. 
 Readhead v. Midland R. Co., 632. 
 Beading etc. B. Co. v. Eichtle, 556. 
 Beading B. Co. v. Yeiser, 562. 
 Roadman v. Conway, 634. 
 Bearick v. Wilcox, 321. 
 Bectorv. Smith, 328. 
 Ueddall v. Bryan, 224. 
 Redding v. Goodwin, 375. 
 , Beading v. Wright, 403. 
 Bedgrove v. Kurd, 366, 379. 
 Redpath v. Lawrence, 381. 
 Ecdway v. Gray, 296. 
 Reece v. Taylor, 257. 
 Reed v. Allegheny City, 637. 
 Reed v. Harper, 60, 576. 
 Reed v. Home Savings Bank, 67, 68. 
 Reed ?;. Nutt, 258. 
 Reed v. Peterson, 383, 648. 
 Reed v. Snauldiug, 6U6. 
 Beed v. Williams, 276. 
 Beeder v. Furdy, 272. 
 Beenholts v. Becker, 291. 
 Beese v. Biddle, 122. 
 Reese v. W. U. Tel. Co., 55. 
 Reese River Silver Mining Co. v. Smith, 
 
 367. 
 Reeve v. Fox. 434. 
 Beeves v. Bowden, 311. 
 
 Beg. V. Comrs. of S. for E., 603, 607. 
 
 Beg. V. Coney, 187, 188. 
 
 Beg. V. Jackson, 150. 
 
 Beg. V. Lesley, 211. 
 
 Beg. V. Lewis, 187. 
 
 Beg. V. Orton, 189. 
 
 Beg. V. Riley, 470. 
 
 Reg. V. M'illiains, 71. 
 
 Rcichert v. Geers, 506. 
 
 Reid V. Clark, 222. 
 
 Reid V. De Lorme, 339. 
 
 Beid V. Gifford, 528. 
 
 Beilley v. Cavanaugta, 26. 
 
 Reinhardt v. Mentasti, 500, 502. 
 
 Reinmiller v. Skidmore, 464. 
 
 Reiper v. Kichols, 45. 
 
 Beiteu V. Goedel, 331. 
 
 Reliance, The, 637. 
 
 Remington v. Coughdon, 333, 338. 
 
 Renck v. McGregor, i&i. 
 
 Rendz!. Chicago, etc. Ry. Co., 231. 
 
 Beufrov. Chicago, etc. R. Co., 116. 
 
 Renncr v. Canheld, 30, 53. 
 
 Rentz V. Etna Ins. Co., 199. 
 
 Renwick v. Morris, 515. 
 
 Bepler v. Feuts, 262. 
 
 Republican v. Sparhawk, 199. 
 
 Bepubllcan Fub. Co. v. Miner, 287. 
 
 Bcrick v. Bern, 462. 
 
 Bespublica v. DeLongcfaamps, 2ia. 
 
 Bespublica v. Newell, 487. 
 
 Bex 1). Pease, 156. 
 
 Kcxroth V. Coon, 150. 
 
 Reynell v. Sprye, 366. 
 
 Reynold v. Robinson, 271. 
 
 Reynolds v. De Greer, 395. 
 
 Reynolds v. Edwards, 181. 
 
 Beynolda v. FrankUu, 217. 
 
 Reynolds v. Graves, 27. 
 
 Reynolds v. Haurahan, 81. 
 
 Reynolds v. Hennessy, 245. 
 
 Reynolds v. Hindmau, 21. 
 
 Reynolds v. Shuler, 9. 
 
 Reynolds v. Witte, 112. 
 
 Bhing V. B'way & S. A. B. Co., 590. 
 
 Rhoda V. Annis, 112. 
 
 Rhode V. Alley, 362. 
 
 Rhodes v. Dickinson, 132, 434. 
 
 Rhodes v. Dunbar, 501, 506. 
 
 Rhodes v. Parish, 21:i. 
 
 Rhodes v. Nagle, 316. 
 
 Rbodes v. Olis,462. 
 
 Rhodes v. Roberts, 618. 
 
 Rhodes v. Rogers, 235. 
 
 Rhodes v. Whitehead, 505. 
 
 Ribble V. Starrat, 546. 
 
 Rice V. Barrett, 351. 
 
 Bice V. Boyer, 60. 
 
 Bice V. Coolidge, 24, 328, 329. 
 
 Bice V. Evansville, 70. 
 
 Bice V. Manley, 390, 673. 
 
 Bice V. Tecum, 110. 
 
 Bich V. Basterfleld, 531. 
 
 Bich V. Bell, 211. • 
 
 Rich V. New York Cent. etc. R. Co., 535. 
 
 Richard s Appeal, 506: 
 
 Bichard v. Schleusner, 552. 
 
 Richards v. Dorver, 225, 182. 
 
 Richards v. Gilbert, 606. 
 
 Richards v. Bough, 161. 
 
 Richards v. .Schlensener,617. 
 
 Richards v. Torbet, 129. 
 
 Richardson v. Adams, 357. 
 
 Richardson v. Anthony, 109. 
 
TABLE OF CASES CITED. 
 
 73] 
 
 The References ai'e to Pages. 
 
 Klchardson v. Kier, 606. 
 
 Kichardson v. Kimball, 84, 64S. 
 
 Richardson v. Roberts, 32i. 
 
 Kichardson v. Van Ness, 94. 
 
 Rich<iTdson v. Vermont etc. R. Co., 157. 
 
 Rlchitrdson v. Vice. 472. 
 
 Bichcls V. State, 252. 
 
 Richmond v. Fiske,2.'i0. 
 
 Richmond v. Sacramento, etc. R. Cn., fiin. 
 
 Richmond & D. R.Co. v. Elliott, 621. 
 
 Richmond & T>. R. Co. v Jones, 122. 
 
 Richmond & D. Ry. Co. v. Teamans, .^r,7. 
 
 Richmond etc. R. Co. v. Anderson 667. 
 
 Richmond ef. R. Co. !?. Howard, .'i3S..'iv3. 
 
 Richmond Mfg. Co. v. Atlantic Delaine 
 Co., 402. 
 
 Ricker v. Freeman, 37, 248. 252. 
 
 Ricket V. Metrop. R. Co., 490. 
 
 Ricord v. Cent. Pac. R. Co., 63, 395. 
 
 Riddle v. McGlnnls, 278. 
 
 Riddle V. Proprietors, 67. 
 
 Rider O.Kelly, 683. 
 
 Rider w. White, 614. 
 
 Riding v. Smith, 292,304. 
 
 Ridings v. Hannibal & St. Jo. Ry. Co., 667. 
 
 Rigdon «. Jordan, 396. 
 
 Riggs V. Denniston, 300, 
 
 Rightmire v. Shephard. 413, 476. 
 
 Riley v. Boston Water Power Co., 454. 
 
 Riley v. Farnnm, 5.14. 
 
 Riley v. Norton, 323. 
 
 Riley v. State Line Steamship Co., 91. 
 
 Ring V. Vogel Paint & Glass Co., 353. 
 
 Ring V. Wheeler, 329. 
 
 Rinschler v. JeliSe, 370. 
 
 Ripka V. Sergeant, 518. 
 
 Ripley V. Dolbier, 443. 
 
 Rippey v. Miller, 223. 
 
 Rish V. Von Lillenthal, 375. 
 
 Risien v. Brown, 462. 
 
 Rist V. Fanx, 280. 
 
 Ritchey v. West, 27. 
 Rives V. Wood, 395. 
 Roach V. Caldbeck, 235. 
 Roach V. Damon, 469. 
 
 Roatho. Driscoll, 178. 
 Robbins v. Barton, 357. 
 Robbing v. Chicago, 93. 
 Robbins v. Robbins, 395. 
 Robeling v. First Nat, Bank, 483. 
 Robert Marys' Case,273. 
 Roberta. Llsenbee, 81. 
 Roberts v. ConneWy, 278. 
 Roberts v. Ramsey, 296. 
 Roberts v. Roberts. 293. 
 Roberts v. Ro-^e, 617. ' 
 Roberts v. State, 648. 
 Roberts ». Wyatt, 454. 
 Robertson v. Bennett, 810. 
 Robertson v. Crane, 435. 
 Robertson v. Hunt, 434. 
 Robetrson v. Parks, 402. 
 Robinett v. Rnby, 336. 
 Robinson v. Bangh. 485. 
 Robinson v. Bird, 439. 
 Robinson v. Barleigli, 435. 
 Robinson v. Cone, 586. 
 Robinson v. Danchy, 414. 
 Robinson v. Drnmmonrt, 324. 
 Robinson v. Hawkins, 201, 256. 
 Robinson v. Keyser, 295. 
 Robinson v. Kilvert, 502. 
 Robinson v. Marino, 613. 
 Robinson v. Maxwell, 509. 
 
 Robinson v. Parks, 859. 
 
 Robinson v. Fognc, 680. 
 
 Robinson v. Railroad Co., 550, 591, 629,637. 
 
 Robinson v. Richards, 420. 
 
 Robinson v. Skipworth, 414. 
 
 Robinson v. Threadgill, 535. 
 
 Robinson v. Walton, 383. 
 
 Robinson w. Webb, 88,110. 
 
 Robinson Machine Works v. Chandler, 
 
 631. 
 Robson V. N. E. E. Co., 199, 660, 594. 
 Roby V. Murphy, 297. 
 Rochester, City of, v. Montgomery, H37. 
 Rochester, City of, v. Simpson, 505. 
 Rock V. McClaron, 297. 
 Eockford v. llildebrand, 69. 
 Eockford v. Tripp, 30. 
 Rockford, etc., R. Co., v. T>elaney, S2, 584. 
 Rockingham Ins. Co. v, Boschev. 30. 
 Rocky Mountain Nat. Bank c. IMcCnsklll, 
 
 114. 
 Rockwell V. Third Av. R. Co., 21S. 
 Rockwood V. Wilson, 157. ! 
 Rodgers v. Kline, 301, 306. 
 Rodgers v. Lacev, 295, 208. 
 Rodgers v. Mies, 631. 
 Rodman v. Thalheimer, 369. 
 Rodney v. McLaughlin, 448. 
 Rodney Hunt Mach. Co. r. Stewart, 434. 
 Roe V. Chitwood, 311. 
 Roomer v. Striker, 637. 
 Rogahn v. Moore Mfg. & F. Co., 109. 
 Rogan V. Perry, 449. 
 Rogers v. Colt, 349. 
 Rogers v. Cox. 45?. 
 Rogers v. Elliott, 495. 
 Rogers v. Evarts, 284, 409. 
 Rogers v. Hanfield, 602. 
 Rogers v. Hatfield, 622. 
 Rogers v. Henry, 345. 
 Rogers v. Hlue, 439. 
 Rogers v. Lacey, 311. 
 Rogers v. Lambert, 443. 
 Rogers v. Leyden, 633. 
 Rogers v. Manufacturing Co., 117. 
 Rogers v. Place, 360. 
 Rogers V. Eajendro Dntt, 180, 181, 182. 
 Rogers v. Spence, 221, 452. 
 Rogers V. Stew.Trt, 629. 
 Rogers v. Talntor, 184. 
 Rogers L. & M. Works v. Brie Ry. Co., 
 
 224. 
 Rogers L. & M. Works v. Hand, 122. 
 Rohan v. Sawln, 262. 
 Rolland v. Batchelder, 307. 
 Rollins V. Chalmers, 281. 
 Rollins V. Clay, 449. 
 Rome & D. R. Co. v. Chasteen, 93. 
 Romney Marsh, Bailiffs of, v. Trinity 
 
 House, 48. 
 Romona Ofllito Stone Co. v. Johnson, 125. 
 Rood V. N. Y. & E. R. Co., 563. 
 Roope V. D'Avigdor, 236. 
 Root 17. French, 680. 
 Root V. King, 287, 316, 318. 
 Root V. .Stevenson, 62. 
 Roots V. Stone, 26. 
 Rose~ V. Miles, 489. 
 Rose V. Miner, 369. 
 Rose V. N. E. R. Co., 560. 
 Rose V. Stevhens, elc, Co., 636. 
 Roseu. U. S. T. Co., 674. 
 Rosen v. Stelu, 267. 
 Rosenberg v. Cook, 451. 
 
732 
 
 TABLE OF CASES CITEP. 
 
 The Kefereuces are to Pages. 
 
 Bosenberg v. Durfee, 5S5. 
 
 Rosenberg v. Hart, 392. 
 
 Bosenberr7 v. State, 276. 
 
 Bosenlleld v. Arroe, 637, S45. 
 
 Bosewatei v. Hotfman, 294. 
 
 EoBewell V. Prior, 531. 
 
 B0B8»i). Butler, 506. 
 
 Boss V. City of Clinton, 71. . 
 
 Boss V. Drinkard, 361. 
 
 Boss V. Langworthy, 394. 
 
 Boss©. Morrow, 243. 
 
 Boss V. Bittenhouse, 13S. 
 
 Boss V. Scott. 223. 
 
 Bossman v. Adams, 225, 429. 
 
 Boaeman v. CanOTan, 375. 
 
 Bost V. Misaouiri Fac. By. Cp., 561. 
 
 Botli V. Smith, 267. 
 
 Bothtiolz V. Ounkle, 338. 
 
 Dunks V. Del. L. & W. B, Co., lOS. 
 
 Bonrke v. White Moss Colliery Co., 96. 
 
 Bouusaville v.- Eohlhelm, 506. 
 
 Bouee v. Chicago etc. B. Co., 530. 
 
 Bouse V. Martin, 495, 521. 
 
 Boux V. Blodgett & Dayis Lbr. Co., 120. 
 
 Bower, The, 630. 
 
 Bowbotham v. Jones, 528. 
 
 Bowe «. Lent, 27. 
 
 Eowell V. Chase, 357. 
 
 Eowell V. Bailroad Co., 504. 
 
 Eowell V. Williams, 69. 
 
 Bowland v. DeCamp, 339. 
 
 Bowlnnd i'. Gundy, 414. 
 
 Bowland v. Murphy, 538. 
 
 Eowley V. Bigelow, 680. 
 
 Bown V. Christopher & T. R. Co., 106. 
 
 Boy V. Goings, 395. 
 
 Boval Aquarium Society k. Parkinson, 
 
 330, 344. 
 Eoyal etc. Co. v. Sherrel, 184. 
 Bozell V. Anderson, 70. 
 Euan V. Perry, 133. 
 Bubelman v. Larchmau, 332. 
 Bude V. NasB, 335. 
 
 Bullner v. Cincinnati etc. B. Co., 617. 
 BuSner v. Biailroad Co., 504. 
 Buffner v. Williams, 261. 
 Buggies V. Lesnre, 464. 
 Buland v. Sontb Newmarket, 552. 
 Bnlbe v. Hanna, 272. 
 Rummell v. Dilworth, 91. 
 Rundell v. Butler, 295. 
 Bunger v. Brown, 375. 
 Buotas V. Baicker, 328. 
 Rush V. Cavanaugh, 300. 
 Russell V. Barrow, 201. 
 Bussell V. Branliam, 360. 
 Bnssell v. Burlington, 70. 
 Russell V. Cbambers, 278. 
 J£ussel V. Doty, 472. 
 BusscU V- Fagan, 642. 
 Bnssell i>. Huthouy, 301. 
 Bussell V. Major, 199. 
 Russell V. Merchants' Bank, 430. 
 Bussell V. Post, 402. 
 Russell V. TiUoitBon, 193. 
 Bust V. Victoria Graving Dock Co., 219. 
 Buter V. Foy, 567. 
 Buther£ord v. Folger, 243. 
 Bntherford v. Morning Journal Assoc, 
 
 346. 
 Rutherford ». Schattman, 408. 
 Rutherford v. Williams, 375. 
 Ruystcr v. Foy, 473. 
 ^Ryan v. Ashton, 369. 
 
 Ryan v. Bagaley, 124.' 
 Ryan v. Chicago & N. W. E. Co., 124. 
 Ryau V. Fralick, 279. 
 Kvan ». Miller, 29. 
 Eyan v. Porter Mlg. Co., 193. 
 Ryan v. Rochester R. Co., 611. 
 Byckmau v. Delaware, SI3. 
 Byder v. Neltge, 370. 
 Byder v. Wombwell, 555. 
 Bylands v. Fletcher, 19, 171, 173, 192, 599, 
 602, 603, 604, 605, 606, 607, 609, 610, 617, 618 
 
 R. V. S., 236. 
 
 Sabine, etc., B. Co. v. JoachimI, 218. 
 
 Sadler v. Henlock, 93, 
 
 Sadler ». South Staffordshire, etc.. Tram- 
 ways Co, 618. 
 
 SadOwski V. Michigan Car Co., 120. 
 
 Saiford v. Grant, 376. 
 
 Sagers v. Nuckolls, 84. 
 
 Salem Bank v. Gloucester Bank, 29. 
 
 Bales V. Briggs, 395. 
 
 Sallsbnrg v. Green, 469. 
 
 Salisbury v. Howe, 304. 
 
 Salmon v. Delaware, etc..B. Co., 44. 
 
 Salmon v. Bailroad Co., 538. 
 
 Salmons v. Knight, 226,347. 
 
 Salter v, Howard, 276. 
 
 Salter v. Utica etc, E. Co., 556. 
 
 Salt Lake City v. Hollister, 67. 
 
 Salt Springs Nat. Bank v. Wbeeler, 438. 
 
 Saltus V. Everett, 680. 
 
 Salviu V. North Branceueth Coal Co., 497, 
 501, 526. 
 
 Sampson v. Smith, ISl. 
 
 Samuels v. Evening Mall Assn., 67. 
 
 Samuels v. Bichmond & D. B. Co., 220. 
 
 Samuelson v. Cleveland etc., 530. - 
 
 Samyn v. McOlosky, 637. 
 
 Sanbora v. Detroit etc. E. Co., 556. 
 
 Sanborn v. namilton, 434. 
 
 Sanders v. Hamilton, 658. 
 
 Sakiders v. Jacobs, 164. 
 
 Sanders ii. Stuart, 679. 
 
 Sanders v. Caldwell, 311. 
 
 Sanderson v. Fraziei, 669. 
 
 Saner v. Bilton, 428. 
 
 Sandford v. Clarke, 580. 
 
 Sanford v. Benfiett, 343. 
 
 Sanford v. Eighth A^e. E. Co., loa 
 
 Sanford i>. Handy, 112, 358, 883. 
 
 Sanford v. Standard OH Co., 121. 
 
 Sangster v. Prather^SSS. 
 
 Sans V. Joerris, 316. 
 
 Sapp V. Boberts, 2-25. 
 
 Sapplngtou V, Watson, 376. 
 
 Saratoga Co. v. Deyoe, 482. 
 
 Sargeant v. Blunt, 438. 
 
 Sargent v. Ballard, 456. 
 
 Sargent v. Mathewson, 276. 
 
 Sarles v. Sarles, 429,430. 
 
 Sasser v, Davis, 243. 
 
 Satterly v. Morgan. 125.. 
 
 Saucer v. Keller, 462. 
 
 Saulsbury v. Itkilca, 70. 
 
 Saunderliu v. Bradatreet, 312. 
 
 Saunders v. Baxter, 313. 
 
 Saunders v. Hattermon, 357. 
 
 Saunders v. MoClintock, 366. 
 
 Savacool v. Boughto<>,'112, 262. 
 
 Savage v. Brewer, 399, 
 
TABLE OF CASES CITED. 
 
 733 
 
 The l^eferences are to Pages. 
 
 Savage v. Fullar, iO. 
 
 Savannah v. Donnelly, 69. 
 
 Savannah & TV. E. Oo. o. Phillips, 94. 
 
 Savannah St. B. Co. v. Bryan, 105. 
 
 Savile or Savlll v. Roberts, 401. 
 
 Saville v. Welch, 65S. 
 
 Savole V. Soanlan, 296. 
 
 Sawyer v. Ellert, 295. 
 
 Sawyer v. Martins, 88. 
 
 Sawyer v. Frickett, 366. 
 
 Sawyer Spindle Co. v. Tnrner, 225. ~ 
 
 Saxhy v. Manchester & Sheffield K. Co., 
 
 531. 
 Saxton V. Bacon, 611. 
 Sayers v. Haskinson, 430. 
 Sayles v. Briggs, 395. 
 Sayward v. Carlson, 123. 
 Scarborough ». Alabama Midland R. Co., 
 
 92. 
 Schaefer v. Osterbrlnk, 61, 101. 
 Schaeffer v. Township of Jackson, 44. 
 Schattner v. City of £ansas, 69. 
 SchecKell v. Jackson, 318. 
 Scheffer v. Railroad Co., 30, 544, 567. 
 Schefller v. Minneapolis, etc.. By., 81. 
 Schelfer v. Glooding, 329. 
 Schelter v. York, 151. 
 Schenck v. Schenck, 308. 
 Schenk v. Strong, 62. 
 Scherman s.'Fitch, 660. 
 Schermerhorn v. The Metropolitan Gas- 
 
 Light Co., 620. 
 Schild V. iiegler, 813. 
 Schlietz V. Lanfitt, 343. 
 Schmeer v. Gas-Light Co., 620. 
 Schmidt v. Adams, 87, 110. 
 Schmidt V. Cook, 530. 
 Schmidt v. Degan, SI. 
 Schmidt v. Kansas City Distilling Co., 
 
 585 
 Schmidt i;. S. & H. P. Ry. Co., 534. 
 Schmidt V. Wedman, 396. 
 Schmidt V. Witheriek, 296. 
 Schmlthermer v. Eiseman, 60. 
 Schneider v. McLane, 262. 
 Schofleld V. Railroad Co., 557. 
 School Dist. V. Bragdon, 61. 
 School District v. Lindsay, 461. 
 School District v. Nell, 488, 516. 
 Schoonover v. Bright, 225.' 
 Schorn v. Berry, 274. 
 Schreiber v. Sharpless, 81. 
 Schroeder v. Chicago & A. R. Co., 123!. 
 Schroeder v. Michigan Car Co., 164. 
 Schrubbe v. Connell, 91. 
 Schubert v. Clarke Co., 634^ 631. 
 Schateldt v. Sehlntzler, 357. 
 Schular v. Hudson River R. Co., 92. 
 Schnltz V. Schultz, 64. 
 Schnlz V. Third Ave. E. Co., 105. 
 Schum V. Pennsylvania E. Co.. 647. 
 Schumacher v. Railroad Co., 211. 
 Schumaker v. Mather, 357, 358. 
 Scbaster v. Board of Health, 523. 
 Schuyler v. Busbey, 334. 
 Schnylkill Nav. Co. v. Farr, 519. 
 Schwartz v. Gilmore, 91. 
 Schwenk v. Naylor, 359. 
 Scidmore v. Smith, 275. 
 Scircle V. Neeves, 262. 
 Scogland v. Minneapolis St. By. Co., 271. 
 Scott V. Bay, 602. 
 Scott V. Fleming, 253, 323. 
 Scott V. Hale, 503. 
 
 Scott V. Hunter, 29, 51. 
 
 Scofleld V. Ereiser, 4;i9. 
 
 Scott V. London Dock Co., 550, 563, 637. 
 
 Scott V. McKinnish, 325. 
 
 Scott V. Montgomery, 218. 
 
 Scott V. Rogers, 683. 
 
 Scott V. Seymour, 238. 
 
 Scott V. Shenherd, 34, 37, 170, 204. 
 
 Scott V. Stansfleld, 138, 140, 329. 
 
 Scott V. Sweeney, 122. 
 
 Scott V. Watson, 61. 
 
 Scott V. "Wilmington etc. R. Co., Hoi. 
 
 Scott's Trustees v. Moas, 4U. 
 
 Scribner v. Beach, 201, 256. 
 
 Scribner v. Kelley, 613. 
 
 Scrip ps V. Reilly, 309, 343. 
 
 Scruggs V. Davis, 443. 
 
 Seacord v. People, 485. 
 
 Seager v. Sligerland, 279. 
 
 Seale v. G. C. & S. F. Ry. Co., 45. 
 
 Seaman v. Netherclift, 330. 
 
 Searles v, Manhattan R. Co., 545. 
 
 Searles v. Scarlett, 841. 
 
 Searll v. McCrackIn, 395. 
 
 Sears v. Eastern R. Co., 656. 
 
 Sears v. Hathaway, 394. 
 
 Seat V. Moreland, 214. 
 
 Seaton v. Codray, 296. 
 
 Secor 17. Harris, 301. 
 
 Secretary of State in Council of India v. 
 
 Kamachee Boye Sahaba, 133. 
 Sedalia Gaslight Co. v. Mercer, 157. 
 Seeley v. Peters, 610. 
 Seely v. Alden, 519. 
 Seely v. Blair, 300, 301. 
 Seifert v. Brooklyn, 145. 
 Seifried v. Hays, 506, 628. 
 Selby V. Nettlelold, 477. 
 Selden v. Bank of Commerce, 114. 
 Selden v. Del. & Hud. Canal Co., 639. 
 Sellers v. Parvis-& Williams Co., 506. 
 Selma v. Railroad Co., 376. 
 Selrer v. Montgomery, 308. 
 Selz V. Unna, 232. 
 Semayne's Co., 471. 
 Semour v. Greenwood, 106. 
 Sencea Falls v. Zalinski, 70. 
 Seneca Road Co. v. Auburn, etc. R. Co., 
 
 214. 
 Seroka v. Eattenbnrg, 66. 
 Servations v. Flchel, 339. 
 Seton V. Lafone, 38, 446. 
 Seward v. The Vera Cruz, 78. 
 Sewell V. Catlln, 295, 302. 
 Sexton V. Todd, 316. 
 Sexton V. Zett, 644. 
 
 Seybold v. New York, etc. E. Co., 545, 636. 
 Seymour v. Greenwood, 111. 
 Shackelford v. Hendley, 375. 
 Shackettv. Shackett, 150. 
 Shadden v. McElwee, 329. 
 Shade v. Creviston, 358. 
 Shaefer v. Sheppard, 271. 
 Shaf er v. Stull, 224. 
 Shaidey v. WeUs, 262. 
 Shank v. Northern etc. E. Co., 122. 
 Shannon v. Jones, 392. 
 Shapleigh v. Wyman, 198. 
 Sharp V. Bonner, 637. , 
 
 Sharp V. Miller, 244. 
 Sharp V. Powell, 61, 53, 54. 
 Sharp V. Johnson, 394. 
 Sharpe v. Williams, 230. 
 Shatto V. Abernelhy, 632. 
 
734 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Shattuo V. MoArthnr, 295. 
 
 Shattuck V. i\lleu, iiI2. 
 
 Shattuck V. Hammond, 281. 
 
 Shaul V. Brown, 392. 
 
 Shaver v. Loucks, 391. 
 
 Shaver v. Shaver, 184. 
 
 Shaw*. Ooffln, 61. 
 
 Shaw V. Craft, 614. 
 
 Shavr V, Cummiskey, 505. 
 
 Shaw V. Davis, lil. 
 
 Shaw V. EtterbridKe, 519. 
 
 Shaw V. New York etc. K. Co., 157. 
 
 Shaw V. Port Philip Gold Mining Co., 112. 
 
 Shawneetown v. Mason, 70. 
 
 Shay ». Thomson, 186. 
 
 Shea V. Sixth Ave. B. Co., 104. 
 
 Sheahau v. Collins. 316, 324. 
 
 Shecut V. McDowell, 312. 
 
 Sheihan v. Sturgis, 149.1 
 
 Sheff V. Huntington, 569. 
 
 Sheffl V. Van Deuseu, 307. 
 
 Sheicki>. Hobson, 220. 
 
 Sheik V. Hobson, 685. 
 
 Shelby v. Sun Printing &Pab. Co. Assoc, 
 
 Sheldon v. Hill. 264. 
 
 Sheldon v. Hnd. Rlv. R. Co., 504, 562. 
 
 Sheldon v. Kalamazoo, 69. 
 
 Sheldon v. Kibbe, 230. 
 
 Sheldon v. Sherman, 605. 
 
 Sheldon v. Stryker, 142. 
 
 Shelly V. City of Austin, 534. 
 
 Shelton v. Nance, 288. 
 
 Shelton v. Simmons, 324. 
 
 Shepheard v. Whitaker, 303. 
 
 Shepherd v. Gas-Light Co., 551. 
 
 Sheple V. Page, 403. 
 
 Sheridan v. Brooklyn & N. B. Co., 684. 
 
 Sheridan v. Charlick, 95, 100, 108. 
 
 Sheridan v. New Quay Co., 44-2. 
 
 Sherman v. Commercial Ftg. Co., 450. 
 
 Sherman v. Johnson, 81. 
 
 Sherman v. Wells, 606. 
 
 sherner v. Spear, 231. 
 
 Sherrill v. Connor, 430. 
 
 Sherry v. Perkind, 407. 
 
 Sherwood v. Chace, 296. 
 
 Sherwood ». Hall, 275. 
 
 Sherwood v. Salmon, 857. 
 
 Sherwoon v. 'J'itman,274. 
 
 Showatler v. Bergman, 281. 
 
 Shiella V. Blackhurne, 536, 648. 
 
 Shipley V. Fifty Associates, 603. 
 
 Shipman v. Burrows, 291. 
 
 Shipmau v. Seymour, 369." 
 
 Shippy V. Am. Sable, 70. 
 
 Shliii|>y V. Village of An Sable, 583. 
 
 Shlras V. Olinger, 505. 
 
 Shirley v. Waco Tap. R. Co., 220. 
 
 Shively v. Cedar Eapids,eto. By. Co., 506. 
 
 Shoe & Leather Bank v. Thompson, 66. 
 
 Shoecraf t v. Bailey, 642. 
 
 Shoemaker v. Nesbit, 145. 
 
 Shorter v. People, 265. 
 
 Shotts Iron Co. v. IngUs, 502. 
 
 Shreckengast v. Ealey, 222. 
 
 Shufey v. Bartley, 206. 
 
 Shuler v. Millsape,'686. 
 
 Shnrtleff v. Parker, 292, 316, 338. 
 
 Shnrtletf !>. Stevens, 338. 
 
 Sick V. Owen, 334. 
 
 Sickles V. Gould, 449; 
 
 Sidekum v. Wabash, etc.. By. Co., 218. 
 
 Sides V. Hilleary, 369. 
 
 Sidgreaves v. Myatt, 294.. 
 
 Sieveking v. Litzler, 356, 357. 
 
 Sikes V. Sheldon, 164. 
 
 Sikes V. Thompson, 61. 
 
 Sllby V. Trotter, 458. 
 
 Sillars v. Collier, 301. 
 
 Silva V. Garcia, 225. 
 
 Silver Cord C. M. Co. v. McDonaldj 589. 
 
 Silver Spring, etc. Co. v. Wansknck Co., 
 
 492. 
 Sirajclu V. L. & N. W. K. Co., 67. 
 Simmonds v. Holmes, 201. 
 Simmonds v. New York, etc., E. Co., 44, 
 
 604. 
 Simmons v. Everson, 537. 
 Simmons v. Gaynor, 19S. 
 himmons v. Holster, 310. 
 Simmons v. Morse, 311. 
 Simmons Medicine Co. v. Mansfield 
 
 Drug Co., 184. 
 Simms v. South Carolina B. Co., 644, 
 Simon ». Canaday, 357. ' 
 Simonin v. New York, etc., E. Co., 101. 
 Simons V, Monier, 101.. 
 Simpkins v. Columbia etc. B. Co., 538. 
 Simpson V. Grayson, 276, 277. 
 Simpson v. Pettibone, 298. 
 Simpson V. Savage, 529. 
 Simpson v. State, 250, 487. 
 Simpson V. Wright, 463. 
 Sims «.'rerrlll, 361. 
 Sims V. Eeed, 142. 
 Siner v. G. W. E. Co., B59. 
 Singer, etc., Co. v. Domestic, etc., Co., 
 
 347. 
 Singer Mfg. Co. v. Elng, 441. 
 Singer Mfg. Co. v. Loog, 392. 
 Singer Mfg. Co. v. Eahn, 91, 99. 
 Singer Mfg. Co. v. Skillman, 436. - 
 Singer MJg. Co. v. Wilson, 391. 
 Singleton v. E. C. B. Co., 586. 
 Singleton v. Kennedy, 361. 
 Sinton v. Butler, 624. 
 Sioux City, etc. E. Co. v. Finlayson, 124. 
 Siodx City & P. E. Co. v. Smith, 123. 
 Sisco V. Cheeney, 64. 
 Slsson V. Johnson, 225. 
 Six Carpenters' Case, 479. 
 Skelton v. L. &. N, W. E. Co., 566. 
 Skidmore v, Bricker, 393. 
 Sklne V. Simmons, 349. 
 Skinner v. Grant, 316. 
 Skinner v. L. B. & S. C. E. Co., 549. 
 Skinner v. Powers, 315. 
 Sklpp V. B, 0. E. Co., 126. 
 Slade's case, 648. 
 
 Slattern v. Des Moines etc. E. Co., 157. 
 Slattery's case, 558. 
 Sledge V. Olopton, 243. 
 Sleight V. Levenworth, 260. 
 Sleight V, Ogle, 267. 
 Slidel V. Eightor, 375. 
 Slight V. Gutzlaff, 530. , 
 Slim V. Croucher, 227.- 
 Sloan V. Central Iowa B. Co., 552. 
 Sloan V. New York Central E. Co., 271. 
 Sloan V. Petrle, 324. 
 Slooum V. Clark, 472. 
 Sloggy V. Dilworth, 530. 
 Slossem V. Burlington, etc. E. Co., 668. 
 Small V. Chicago etc. E. Co., 562. 
 Small V. Howard, 27. 
 Smalley v. City of Appleton, 43. 
 Smart v. Blanchard, 287, 305. 
 
TABLE OF CASES CITED. 
 
 735 
 
 The References are to Pages. 
 
 Smart v. Jones, 463. 
 
 Smedia v. Brooklyn etc. B. Co., 556. 
 
 Smethnrst v. Barton Square Church, 637. 
 
 Smith V. Adams; 17S. 
 
 Smith V. Alexandria, 71. 
 
 Smith V. Amer. Institute, 639. 
 
 Smith V. Aahiey, 310. 
 
 Smith V. Austin, 393, 895, 396. 
 
 Smith V. Baker, 173, 195, 196, 197. ino, 633. 
 
 Smith V. Bayrlght, 243. 
 
 Smith V. Bell, 442. 
 
 Smith V. Boston Gas Light (.n., r.iB, 020. 
 
 Smith V. Blown, 77. 
 
 Smith V. Burns, 321, 39S. 
 
 Smith V. Oar Works, 568. 
 
 Smith V. Cansey, 614. 
 
 Smith V. Chadwlck, 356, 36S, :iSO. 
 
 Smith V. Chicago, etc. Ry. Co., 561. 
 
 Smith V. Clews, 439. • 
 
 Smith V. Click, 369. 
 
 Smith V. Cook, 61,2. 
 
 Smith i: Cumraings, 505. 
 
 Smith V. Deaver, 393. 
 
 Smith V. Earl Brownlow, 513. 
 
 Smith V. Elliott, 529. 
 
 Smith V. Eaconbas, 243. 
 
 Smith V. French, 574. 
 
 Smith V. Gafford, 296. 
 
 Smith V. Goodman, 33, 537. 
 
 Smith V. Green, 38, 684. 
 
 Smith V. Hestonville, etc. liv. Co., 583. 
 
 Smith V. Hintrager, 398. 
 
 Smith V. Insurance Co., 369. 
 
 Smith V. Jernigan, 658. ' 
 
 Smith V. King, 396. 
 
 Smith V. Kron, 61. 
 
 Smith V. L. S. W. R. Co., 538, 560, 60S. 
 
 .%mith V. Lockwood, 523. 
 
 Smith V. London & St. Eatharine Docks 
 
 Co., 628. 
 Smith V. Lyke, 272. 
 Smith V. Martin, 279. 
 Smith V. Mayor, 70. 
 Smith V. McOonathy, 505, 506. 
 Smith V. McDowell, 522 
 Smith V. Mclver, 349. 
 Smith V. Milles, 419. 
 Smith V. Montgomery, 614. 
 Smith V. New York, etc. E. Co., 561. 
 Smith V. Osborn, 369. 
 Smith V. Oxford Iron Co., 124. 
 Smith V. Pettengill, 483. 
 Smith V, I'ierce, 479. 
 Smith V. Klohards, 363, 367. 
 Smith V. Rooh, 235. 
 Smith V. Rodecap, 805. 
 Smith V. Sellers, 193. 
 Smith V. Shadwiok, 374. 
 Smith V. Sherman. 685, 686. 
 Smith V. Silence, 298. 
 Smith V. Simmons, 92. 
 Smith V. Simon, 186. 
 Smith V. Skut, 614. 
 Smith V. Slocum, 257. 
 Smith V. Smith, 6S, 294, 332, 369. 
 Smith V. Spitz, 100. 
 Smith V. State, 253, 260. 
 Smith V. Stewart, 294. 
 Smith V. St. Paul, etc., Co., 637. 
 Smith V. Sun Pub. Co., 346. 
 Smith V. Sydney, 267. 
 Smiths. Talbot, 246. 
 Smith V. Tracy, 384. 
 Smith V. Tsenhour, 144. 
 
 Smith V. Webster, 101. 
 
 Smith V. Weeks, 400. 
 
 Smith V. Whiting, 218, 214. 
 
 Smith V. Wood, 434. 
 
 Snedlker ii.'Poorbaugh, 298. 
 
 Sneesby v. L. & Y. Rail. Co., 38. 
 
 Snodgrass v. Bradley, 110. 
 
 Snow V. Grace, 223. 
 
 Snow V. Judson, 304. 
 
 Snow V. Parsons, 492. 
 
 Snow V. Provlnoetown, 584. 
 
 Snow V. Wheeler, 407. 
 
 Snow V.' Witcher, 323. 
 
 Snowdenu. Idaho, Quartz Mining Co.] 93. 
 
 Snowden v. State, 149. 
 
 Snowden v. Wilas, 462. 
 
 Snyder v. Andrews, 307, 311, 312, ,323,324, 
 
 326. 
 Snyder v. Cabel, 504, 528. 
 Snyder v. Hopkins, 430. 
 Snyder v. Myers, 462. 
 Snyder v. Tatter, 317. 
 Snyder v. Viola Mining & S. Co., 120,487. 
 Snydam v. Jenkins, 683. 
 Soan V. Gilbert, 326. 
 Sofeld V. Sommers, 619. 
 Soloman v, Kivkwood, 403. 
 Soloman v. Waas, 63 442. 
 Soloman R Co. v. Jones, 124. 
 Soltan V. DeHeld, 605. 
 Somerville v. 0'Neil,5a6. 
 Somethar^t v. Proprietors Ind. Cong. 
 
 Church, 634. 
 Sommerville v. Hawkins, 338. 
 Sontag V. Bigelow, 448. 
 Sorenberger v, Houghton, 611. 
 Soreson v, Dundas, 260. 
 So Balle v. W. U. T. Co., 675. 
 Sorruceo v. Geary, 199. 
 Sosat V. State, 202. 
 Soule V. Winslow, 395. 
 Soulty V. Miller, 324. 
 South V. Denniston, 278i 
 Southard V. Rexford, 222. 
 South Bend v. Paxon, 620. 
 South Carolina R. Co. v. Nix, 82. 
 Sonthcote v. Stanley, 642. 
 South Covington etc., Ry. Co. v. Ge8t,217, 
 
 246. 
 South Covington etc., By. Co. u. Ware, 
 
 690. 
 Southern Ex;press Co. v. Brown, 91. 
 Southern Express Co. v. Fitzner,100,108. 
 Southern Express Co. v. Glenn, 605. 
 Southern P. E. Co. v. Dufour. 178. 
 Southern P. B. Co. v. Lasch, 194. 
 Southern B. Co. v. Kendrick, 213. 
 South Omaha v. Cunningham, 70. 
 South Eoyalton Bank v. Suffolk n.ink, 
 
 33, 182. 
 South Side, etc., Co. v. Frich, 45. 
 Southwestern B. Co. ■;;. Mitchell, 462. 
 Southwick V. Estes, 110. 
 Southwood V. Myers, 651. 
 Spalds V. Barrett, 328. 
 Spaits V. Poundstone, 307. 
 Spalding V. Lowe, 394. 
 Spalding v. Oakes, 232. 
 Sparhawk v. Union etc. E. Co., 4S8. 
 Spear v. Hiles, 393. 
 Spear v. Marquette, etc., R. Co., 197. 
 Speight V. Olfviera, 279, 281. 
 >pelman v. Portage, 70. 
 Spencer v. Bait. & O. B. Co., 667. 
 
736 
 
 TABLE OP CASES CITED. 
 
 The Beferences are to Pages. 
 
 Spencer v. Campbell, 615. 
 Spencer v. Kelley, 96. 
 Spencer v. McMaaters, 295. 
 Spencer v. Ohio & M. B. Co., 120 
 Spencers v. McMasters, 324/ 
 Spicer v. Waters, 213. 
 Spldmore v. Brloker, 396. 
 Spieriig v. Andrews, 301. 
 Spisak V. Baltimore & O. B. Co., 91. 
 Spill V. Panle, 388. 
 Spill V. Manle, 345. 
 
 Spokane Truck & Dray Co. v. Hoef er, 564. 
 Spooner v. Heeler, 296, 329. 
 Spooner v, Manchester, 443. 
 Sprague v. Fremont etc., E. Co., 473, 610. 
 Spralghts v. Hawley, 439, 454. 
 Spring V. Besore, 395. 
 Springer v. Berry, 683. 
 Springfield v. LeClaire, 70. 
 Springfield v. Scheerers, 69. 
 Sproal V. Hemmingway, 91. 
 Spronl V. Pillsbnry, 307. 
 Sqnire v. Wright, 542. 
 Stackpole v. Hennen, 329. 
 Stackus V. N. Y. Cent. etc. K. Co., 557. 
 Stacy V. Emery, 394. 
 Stacy V. Portland Pub. Co., 315. 
 Staetter v. McArthur, 614. 
 Stafford v. Morning .journal Assoc, 346. 
 Stafford v. Newsom, 672. 
 Stallings V. Whlttaker, 295. 
 Stancllff V. Palmeter, 392. 
 Standard Oil Co. v. Tierney, 164, 664. 
 Standish v. Naragansett S. S. Co., 68. 
 Stanfleld v. Boyer, 298. 
 Stanhope ». Swafford, 114, 360. 
 Stanley v. Qaylord, 425. 
 Stanley v. Powell, 173. 
 Stanley v. Webb,, 312. 
 Stansell v. Cleveland, 394. 
 Stanton v. Hart, 396. 
 Stanton v. Louisville & N. E. Co., 44. 
 Stanton Mfg. Co. t). McFarland, 225. 
 Staple «. 'Spring, 529, 630, 624. 
 . Staples V. Smith, 424, 432, 452. 
 Stai-bird v. Frankfort, 64. 
 Starkweather », Benjamin, 353, 3S8, 369. 
 State 1). Abbot, 257. 
 State V. Alf ord, 149. 
 Statev. Baker, 250. 
 State V. Baldwin, 485. 
 State v. Beck, 185,253. 
 State V. Beckner, 471. 
 State V. Blackwell, 251. 
 State V. Board of Health, 504. 
 State V. Board of Health of Newark, 485. 
 State V. Besion & M. B. Co., 649. 
 State V. Briggs, 263. 
 State V. Brookp, 256. 
 State V. Burke, 204. 
 State V. Burnham,410. 
 State V. Burroughs, 294. 
 State V. Burtman, 315. 
 State V. Bnrvvell»257. 
 State V. Calhoun, 243. 
 State V. Cherry. 251. 
 State V. Ohipman, 250. 
 State V. Church, 250. 
 State V. Claudius, 471. 
 State V. Council, 611. 
 State V. Crow, 251. . 
 State V. Davis, 248, 250. 
 State V. Dixon, 256. 
 State V. Donaldson, 410, 
 
 State V. Epperson, 260i 
 
 State V. Furlong, 243. 
 
 State V. Gibson, 257. 
 
 State V. Gould, 312. 
 
 State V. Greer, 257. 
 
 State V. Guest, 361. 
 
 State V. Hastings, 138, 145. 
 
 State V. Holloway, 361. 
 
 State V. Hull, l5o. 
 
 State V. Jeandell, 311. 
 
 State V. Jones, 149. 
 
 State V Kastner, 506. 
 
 State V. Keran, 516. 
 
 State V. King, 487. 
 
 State V. Lamb, 610. 
 
 State V. Lansing, 336. 
 
 State V. Lanner, 644. ,' 
 
 State V. Laura Toole, 485. 
 
 State V. Luhsford, 259. 
 
 State V. Maine Cent. E. Co., 568. 
 
 State V. MarsteUer, 260. 
 
 State V. Martin, 142, 250. 
 
 State V. Mayor etc. of Mobile, 484, 483, 522. 
 
 State V. McDermott, 614. 
 
 State V. McDonald, 148. 
 
 State V. MoNally, 141. 
 
 State V. Middleham, 257. 
 
 State V. Mizner, 149. 
 
 State V. Mooney, 263. 
 
 State V. Moore, 606. 
 
 State V. Morgan, 250. 
 
 State V. Myerfleld, 260. 
 
 State V. Myers, 260. 
 
 State V. Nash, 266. 
 
 State V. Neely, 250. 
 
 State V. Nfiff, 160. 
 
 State V. Neldt, 60S. 
 
 State V. Oliver, 150. 
 
 State V. Parker, 260. 
 
 State V. Payson, 606. • 
 
 State V. Peacock, 257. 
 
 State V. Powell, 495. 
 
 State V. Bawles, 260. 
 
 State V. Ehodes, 150. 
 
 State V. Schmidt, 301. 
 
 State V. Shelbyyille, 506. 
 
 State V. Shepherd, 250. 
 
 State V. Sims, 261. 
 
 State V. Smith, 248. 
 
 State V. Spear, 295. 
 
 State V. Stewart, 410. 
 
 State V. Stockton, 257. 
 
 State V, Street Commissioners, 506. 
 
 State V. Taylor, 250. 
 
 State V. Thackara, 474. 
 
 State V. Thackland, 471. 
 
 State V. Vanderbilt, 149. 
 
 Stale V. Vannoy, 250. 
 
 State V. Wait, 828. 
 
 State V. Walker, 84. 
 
 State V. Weed, 142. 
 
 State V. Williams, 147. 
 
 State V. Wilson, 606. 
 
 State V. Wolf, 506. 
 
 State V. Workman, 253. 
 
 State V. Wright, 248. 
 
 Staub V. Van Benthuyser, 309. 
 
 Staten V. State, 257. 
 
 Statting^ V. Whlttaker, 326. 
 
 Stauss V.' Meyer, 291. 
 
 St. Clair Nail Co. v. Smith, 194. 
 
 Steamboat Farmer «. McUraw, 574. 
 
 Stearns v. City of Elchmond, 137. . 
 
 Stearns v. Dillingham, 668. 
 
TABLE OF CASES CITED. 
 
 737 
 
 The Beferences are to Pages. 
 
 steams v. Sampson, 33. 
 
 Stearns v. Vincent, 471. 
 
 Steel V. Williams, 395. 
 
 Steele v. Biannan, 312. 
 
 Steele v. MoTyer, 606. 
 
 Steele v. Smith, 110. 
 
 Steele v. Sonthwick, 287. 
 
 Steffen v. Chicago, etc. R. Co., 193. 
 
 Stelber v. Wensell, 311. 
 
 Stein V. Hauck, 509. 
 
 Steinback v. Hill, 353. 
 
 Stelnecke v. Max, 329, 333. 
 
 Steinke v. Bentley, 530. 
 
 Steinmetz v. Kelly, 2.5B, 567. 
 
 Steketc. v. Eiosm, 308. 
 
 Stephen v. Brown, 462. 
 
 Stephens v. Blwall, 436, 443. 
 
 Stephens v. Myers, 252. 
 
 Stephens v. Shrlver, 611. 
 
 Stephens «. Wilklus, 142. 
 
 Stepeneon v. Dnncan, 194. 
 
 Stephenson v. South Pao. E. Co., 100. 
 
 Stepp V. Chicago etc. B. Co., oi7. 
 
 Ster V. Tuety, 634. 
 
 Sterlings!. Jackson, 477. 
 
 Sterling v. Jnggenheimer, 295. 
 
 Sterling v. Thomas, 69. 
 
 Sterling v. Warden, 463. 
 
 Stetson V. Faxon, 490. 
 
 Stetson V. Kempton, SI. 
 
 Stetson V. Stevens, 225, 4S2. 
 
 Stevens v. Armstrong, 95. 
 
 Stevens v. Hartwell, 305. . 
 
 Stevens v. Jeacocke, 229. 
 
 Stevens v. Kelley, 33. 
 
 Sttevens v. Eowe, 402. 
 
 Stevens v. Sampson, 320, 343. 
 
 Stevens v. Walker, 26. 
 
 Stevenson v . Chicago, etc. R. Co., 567. 
 
 Stevenson v. Wallace, 216. 
 
 Stevenson v. Watson, 110. 
 
 Steward v. Tonng, 389. 
 
 Stewart v. Benninger, 473, 611. 
 
 Stewart v. Brooklyn etc. R. Co., 105. 
 
 Stewart v. Cooley, 138. 
 
 Stewart v. Emerson, 369, 
 
 Stewart v. Hall, 32U, 328. 
 
 Stewart v. Hawley, 617. 
 
 Stewart v. Lanier House Co., 684. 
 
 Stewart v. Souneborn, 393, 399. 
 
 Stewart v. Stearns, 378. 
 
 Stewart v. Sterns, 398. 
 
 Stewart v. Wells, 230. 
 
 Stewart v. Wyoming Ranch Co., 362. 
 
 Stimer v. Bryant, 398. 
 
 Stiles V. TiUord, 281. 
 
 Stim V. Croncher, 371. 
 
 Stimpson v. Helps, 363, 367. 
 
 St. James Cborcn v. Arrlngton, 505, 522. 
 
 St. John V. Paine, 96. 
 
 St. Johnsbarg & Co. v. Hunt, 396. 
 
 St. L. I. M. & S. B. Co. V. Tonley, 92. 
 
 St. Louis V. Ealne, 530. 
 
 St. Lonis, A. & T. E. Co. v. Knott, 92. 
 
 St. Louis, A. & T. R. Co. v. McKinsey, 43. 
 
 St. Lonis, A. & T. R. Co. v. Welch, 120. 
 
 St. Louis & 8. E. Ry. Co. v. Vallrlus, 585. 
 
 St. Louis & 8. F. Ey. Co. ». Traweek, 633. 
 
 St. Lonis & S. E. Ry Co. v. Weaver, 121. 
 
 St. Lonis, etc. R. Co. v. Oantrell, 658. 
 
 St. Louis etc. R. Co. v. Harper, 124. 
 
 St. Lonis etc. R. Co, v. Matnias, 656. 
 
 St. Lonis etc. R. Co. v. WlUls, 91. 
 
 St. Louis etc. Ky. Co. v. Brigga, 244. 
 
 St. Louis, etc. Ey. Co. v. Freeman, 564. 
 
 St. Louis etc. Ey. Co. v. Kelton, 193. 
 
 St. Louis, etc., Ry. Co. v. Lyman, 217. 
 
 St. Louia etc. Ry. Co. v. McKinsey, 674. 
 
 St. Louis, I. M. & S. By. Co. v. Hopkins, 
 634. 
 
 St. Lonis Stock Yards v. Wiggins Ferry 
 Co., 462. 
 
 St. Helen's Smelting Co. v. Tipping, 498, 
 602, 524. 
 
 St. Martin v. Desnoyer, 294. 
 
 Stoddard v. Bird, 266. 
 
 Stocking V. Howard, 392. 
 
 Stookmeyer v. Reed, 123. 
 
 Stoeckman v. Terre Haute, etc. R. Co., 
 239. 
 
 Stoker v. Cltv of Minneapolis, 652. 
 
 Stoker v. St. Louis, etc., R. Co., 82. 
 
 Stone V. Bampus, 484). 
 
 Stone V. Cheshire R/Oo., 93. 
 
 Stone V, Codman, 91. 
 
 Stone V. Covell, 351. 
 
 Stone V. Crocker, 395. 
 
 Stone ». Denny, 364. 
 
 Stone V. Dry Dock R. Co., 685. 
 
 Stone V. Hill, 95. 
 
 Stone V. Knapp, 479. 
 
 Stone V. Stevins, 393. 
 
 Stone V. Swilt, 396. 
 
 Stone «. Western Transportation Co., 95. 
 
 Stoneman v. Commonwealth, 201, 257. 
 
 Stoner v. Shugart, 610. 
 
 Stoner v. Texas & P. Ey. Co., 217. 
 
 Storey v. Ashton, 102. 
 
 Storrs V. Feich, 468. 
 
 Story V. Hammond, 504. 
 
 Story V. Wallace, 309, 329, 342. 
 
 Staudt V. Shepherd, 277, 281. 
 
 Stoughton V. Mott, 142. 
 
 Stout V. Wren, 185, 263. 
 
 Stovel V. Lawrence, 265. 
 
 Stow V. Converse, 288. 
 
 Stowe V. Heywood, 235, 271. 
 
 Stowe V. Miles, 505. 
 
 Stowell V. Begle, 333. 
 
 Stowell V. Lincoln, 214, 518. 
 
 Stoyel V. Lawrence, 264. 
 
 Straight v. Burn, 512. 
 
 Strand v. Chicago & W. M. Ry. Co., 546. 
 
 Stratton v. Central City H. E. Co., 545. 
 
 Stratton v. Lyons, 449. 
 
 Stratton v. Staples, 629. 
 
 Straus v. Baruett, 522. 
 
 Strauss v. Meyer, 328. 
 
 Strauss v. Young, 396. 
 
 Street v. Nelson, 432. 
 
 Street v. Union Bank etc., 185. 
 
 Street Ey. Co. ». Nothenius, 546. 
 
 Streety v. Wood, 339 
 
 Strickler v. Midland Ry. Co , 244. 
 
 Strikeman v. Dawson, 61. 
 
 Stringer v. Frost, 534, 545, 591. 
 
 Strlngham v. Hilton, 117. 
 
 Stringham v. Stewart, 120. 
 
 Stroebel v. Whitney, 295, 296. 
 
 Strong v.. Ives, 261. 
 
 StrousS V. Whittlesy, 164, 
 
 Stuart V. Minnesota Tribune Co., 326. 
 
 Stuart V. W. U. Tel. Co., 55. 
 
 Stnber v. McEntee, 125. 
 
 Studwell V. Ritch, 610. 
 
 Studwell V. Shatter, 61 . 
 
 Stnrner v. Pitchman, 296. 
 
 Stnmp V. MoNalry, 516. 
 
 47 
 
738 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Stniam v. Hnmmell, 274. 
 
 Starbridge v. Wlnslow, 262. 
 
 Stnrges v. Bridgman, 198, 499. 
 
 Startevant v. MeiilU, 611. 
 
 Snllens v. Chicago etc. By. Co., 244. 
 
 Sultiran v. Chrreolyte Mining Co., 614. 
 
 Sullivan ». Farley, 142. 
 
 .-iillivan V, MissisBippl R. Co., 117. 
 
 Sullivan v. Missouri P. R. Co., 121, 
 
 Sullivan v. Plilla. etc., E. Co., 637. 
 
 Sullivan v. Eabb, 482. 
 
 Sullivan V. Spencer, 135. 
 
 Sullivan v. Tioga R. Co., 121. 
 
 Sullivan v. Waters, 826, 640. 
 
 Snllivan, Town of, v. FhiUips, 528. 
 
 Summer v. St. Paul, 70. 
 
 Summer v. Utley, 301. 
 
 Sunderliu v. Bradstreet, 336. 
 
 Sunney v. Holt, 558. 
 
 Susquehanna Depot v. Simmons, 69. 
 
 Susquehanna Fertilizer Co. 'v, Malone, 
 
 495, 198, 601. 
 Sntterhoh v. Mayor, etc. ol Cedar Keys, 
 
 506. 
 Sutton V. Bonnett, 503. 
 Sutton V. McOonnell, 395, 396. 
 Sutton V. New York, etc. R. Co., 126, 544. 
 Sutton V. Town ol VVanwalosa, 208. 
 Swann v. Phillips, 382. 
 Swan V. Tappan, 304, 388. 
 Swanson v. City of LaFayette, 192. 
 Sweeney v. Baker, 321, 323, 324. 
 Sweeney v. Central Pao. B. Co., 193. 
 Sweeney v. Gulf R. Co., 123. 
 Sweeney v. Merrill, 603, 617. 
 Sweeney v. Old Colony & Newport B. R. 
 
 Co., 635. 
 Sweeney v. Perney, 396. 
 Sweeney v. Torrence, 410. 
 Sweeny v. Murphy, 92. 
 Swensgaard v. Davis, 395. 
 Swett V. Cutis, 225. 
 Swett v. Sprague, 514. 
 Swifln V. Xioury, 46. 
 Swift V. Applebone, 614. 
 Swift V. Eastern Warehouse Co., 30. 
 Swift V. Jewsbury, 382. 
 Swire v. Frahcis, 387. 
 Switzner v: McCnUoch, 226 
 Sword V. Tonng, 680. 
 S. W. Tel. & Telephone Co. v. Robinson, 
 
 534. 
 Sylvester v. Maag, 613. 
 Symoalds v. Carter, 295. 
 Syndacker v, Brosse, 265, 
 
 T. 
 
 Taafe v. Kyne, 261. 
 
 Taber v. Hutsou, 518. 
 
 Taggs V. Tenn. Nat. Bank, 112. 
 
 Talnter v. Mayor, 482. 
 
 Tale V. Missouri etc. B. Co., 530. 
 
 Tallmadge v. Press Pub. Co., 324. 
 
 T. & St. L. B. V. Suggs, 628. 
 
 Tandy v. Westmoreland, 135. 
 
 Tanner v. Village of Albion, 495. 
 
 Tapling V. Jones, 511, 512. 
 
 Tarleton v. McGawley, 284, 408. 
 
 Tarry v. Ashtou, 638. 
 
 Tarver v. State, 250, 251. 
 
 Tarvis v. Barger, 279. 
 
 Tarwater v. Hannibal R. Co., 544, 611. 
 
 Tasker v. Stanley, 271. 
 
 Tate V. Missouri R. Co., 70. 
 
 Tatlaw V. Jacket, 316. 
 
 Tattan v. G.W. R. Co., 652. 
 
 Taver v. State, 250. 
 
 Taylor v. Alexandria, 141. 
 
 Taylor v. Ashton, 363, 368. 
 
 Taylor v. Chnrch, 336. 
 
 Taylor si. Dominiok, 392. 
 
 Taylor v. EvaneviUe & T. H. R. Co., 123.i 
 
 Taylor v. Greenhalgh, 94. 
 
 Taylor v. Guest, 9, 376. 
 
 Taylor v. Howall, 432.. 
 
 Taylor v. Jones, 142. 
 
 Taylor v. Kneeland, 294. 
 
 Taylor v. Llth, 378. 
 
 Taylori;. Mayor, etc. of Cumberland, 531. 
 
 Taylor v. Mexican G. R. Co., 630. 
 
 Taylor v. Plymouth, 199. 
 
 Taylor v. Pope, 439. 
 
 Taylor v. Saurman, 378. 
 
 Taylor v. Shelkett, 281. 
 
 Taylor v. Sheljon, 660. 
 
 Taylor v. Strong, 262. 
 
 Taylor v. Trask, 265. 
 
 Taylor County v. Standley, 403. 
 
 Taylor etc. B. Co. v. Taylor, l9s. 
 
 Taylor's Admr. v, Penna. Co., 82. 
 
 Teal V. Barton, 503, 504. 
 
 Tefft V. Ashbangh, 141. 
 
 Tefft V. Wilcox, 27. 
 
 Teifel v. Hilsendegin, 668. 
 
 Telegraph Co. v. Bogers, 56. 
 
 Tenhopen v. Walker, 611. 
 
 Tennessee v. Fardas, 630. 
 
 Tennessee O. & E. Co. v. Eoddy, 211. 
 
 Tenney v. Harvey, 263. 
 
 Tenny v. Miners' Ditch Co., 606. 
 
 Terre Haute v. Hudunt, 70. 
 
 Terre Haute & I. B. Co. v. Jackson, 105. 
 
 Terre Haute & I.,B. Co. v. Voeikfi-, 556. 
 
 Terre Haute & S. E. Co. v. Jacksim, 110. 
 
 Terre-Haute, etc., E. Co. v. Buck, .^7. 
 
 Terry v. Fellows, 329, 343. 
 
 Terry v. Hutchinson, 280. 
 
 TerwiUiger v. Wands, 298, 316, 337. 
 
 Tewkesbury ». Bennett, 351. 
 
 Texas & N. O. E. Co. v. Orowder, 546. 
 
 Texas & P. By. Co. v. Cox, 239. 
 
 Texas & P. By. v. Doherty, 45. 
 
 Texas & P. By. Co. v. Gorman, 637. 
 
 Texas & P. R. v. Hardin, 629. 
 
 Texas & P. R. Co. v. Harrington, 119,124. 
 
 Texas & P. Ry. Co. v. Moody, 108. 
 
 Texas & P. Ry. Co.. v. Morin, 688. 
 
 Texas & P. By. Co. v. Murphy, 538, 552. 
 
 Texas & W. E. Co. v. Wilson, 466. 
 
 Texas, etc. Co. v. Suggs, 637. 
 
 Texas, etc., E. Co. v. Biat, 627. 
 
 Texas etc. E. Co. v. Levi, 562, 562. 
 
 Texas etc. E. Co. v. Medaris, 562. 
 
 Tex. Mex. By. Co. v. Douglas, 55. 
 
 Than u. Smiley, 324. 
 
 Thames Steamboat Co. v. Housatonlc E. 
 
 Co., 108. 
 Tharsis Sulphur Co. v. Loftns, 140. 
 Thatcher v. Phinney, 63. 
 Thayer v. Boyle, 325. 
 Thayer v. Brooks, 518. 
 Thayer v. City ol Boston, 99. 
 Thebant v. Canova, 506. 
 Thomas v. Beasdale, 294. 
 Thomas v. Brackney, 606. 
 
TABLE OF CASES CITED. 
 
 739 
 
 The References are to Pages. 
 
 Thomas v. Dnnaway, 324. 
 
 Thomas v. James, 482. 
 
 Thomas v. Qaartermaiue, 126, 194, 195, 
 
 197, 633. 
 Thomas v. Sohee, 26. 
 Thomas v. Sixpenny Bank, 435. 
 Thomas v. Sorrell, 458. 
 Thomas v. Williams, 226. 
 Thomas v. Winchester, 621, 622, 667. 
 Thomkins v. Sands, 138. 
 Thompson v. Berry, 201, 256. 
 Thompson v. Bowers, 315, 324. 
 Thompson v. Brush Co., 383. 
 Thompson v. Chicago etc. R. Co., 122. 
 Thompson v. Clendening,281. 
 Thompson v. Dashwood, 309. 
 Thompson v. Daacan, 545. 
 Thompson v. Engle, 482. 
 Thompson v, Gibson, 529. 
 Thompson v. Gortner, 434. 
 Thompson v. Grimes, 312. 
 Thompson v. Lamley, 394. 
 Thompson v. Lee, 363. 
 Thompson v. Louisville & N. E. Co., 574. 
 Thompson v. Patterson, 278. 
 Thompson v. Powning, 311, 334. 
 'L''iompson V. Rose, 369. 
 Thompson v, Ross, 280. 
 Thompson v. State, 257. 
 Thompson v. W. V. Tel. Co., 55. 
 Thorley's Cattle Food Co. v. Massam, 
 
 226, 390. 
 Thorn v. Moses, 307. 
 Thorn V. Sweeney, 225. 
 Thorton v. Roll, 483. 
 Thorton v. Thorton, 33. 
 Thorogood v Bryan, 580. 
 Thorp V. Minor, 100, 108. 
 Thorpe v. Brnmfltt, 508. 
 Thorpe v. Missouri P. R. Co., 194. 
 Thorpe v. Wray, 265. 
 Thrall v. Knapp, 258. 
 Thrussell v. Handyside, 195, 199. 
 Thurston v, Hancock, 486. 
 Thurston v. Mnstin, 225^ 
 Thurston v. Prentiss, 228. 
 Thurston v. Vermont Cent. E. Co., 493. 
 Thyng ». Fltchbnrg R. Co., 120. 
 Tier V. Hofflin, 310, 
 Tiffin V. McCormack, 92. 
 Tifft V. Tlfft, 61. 
 Tightmeyer v. Mongold, 659. 
 Tillett V. Ward, 612. 
 Tillotson V. Oheetham, 281. 
 Tillson V. Bobbins, 287, 288. 
 Tilly V. N. Y., etc., R. Co., ?2. 
 Timothy v. Simpson, 264. 
 Tipping V. St. Helen's Smelting Co., 493. 
 Tisdale v. Tisdale, 447. 
 Tlssot V. Great Southern Tel. etc. Co., 
 
 492. 
 Titcomb v. Fltchbnrg R. Co., 24. 
 Titus V. Bradford, etc. E. Co., 192. 
 Tobias v. Harland, 291, 388. 
 Tobln V. Deal, 9. 
 
 Tobln V. P. S. & P. E. B. Co., 629. 
 Tobln V. Shaw, 685. 
 Todd V. Kochell, 598. 
 Todd V. Flight, 530. 
 Todd V. Bough, 294. 
 Tod-Heatly v. Benham, 496. 
 Toledo V. Cone, 91. 
 Toledo, etc. E Co. v. Arnold, 211. 
 Toledo etc. E. Co. v. Bryan, 537. 
 
 Toledo, etc. E. Co. v. Corn, 504. 
 
 Toledo, etc. Ey. Co.f. Barman, 110. 
 
 Toledo, etc. E. Co. v. Muthersbaugh,42. 
 
 Toledo etc. Ey, Co. u. Pennsylvania Co., 
 
 Toledo, etc. E. Co. v. Eoberts, 685. 
 
 ToUlt V. Sherstone, 667. 
 
 Tolman v. Smith, 358. 
 
 Tolmau v. Syracuse etc. E. Co., 546. 
 
 Tomlin V. Cox, 349. 
 
 Tomlinson v. Derby, 218. 
 
 Tomlinson v. Warner, .^99. 
 
 Tomkins v, Holli-ter, iilS. 
 
 Tompson v. Dashwood, 344. 
 
 Tonawanda E. Co. v. Hunger, 476, 537, 
 
 Tootle V. Clifton, 51S. 
 
 Topeka v. Tnttle, 37. 
 
 Torrance v. Hurst, 287. 
 
 Torre v. Summers, 281. 
 
 Torrey v. Field, 329, 313. 
 
 Totel V. Bonneloy, 459. 
 
 Totten V. Burhans, 353, 359. 
 
 Totten V. Phipps, 627. 
 
 Totthey vi Iting, 264. 
 
 Tonne v. Wiley, 62. 
 
 Tourtellot v. Rosebrook, 503, 616. 
 
 Tow V. Eoberts, 630. 
 
 Townsend v. Bell, 214. 
 
 Townsend v. Cowles, 360, 361. 
 
 Township of Buckeye v. Clark, 65S. 
 
 Township of West Mahoney «. Watson, 
 
 42. 
 Tozern v. Child, 149, 411. 
 Trabue v. Mays, 296, 305, 312, 316. 
 Tracy v. Williams, 138, 264. 
 Traill v. Baring, 366. 
 Trammell v. Russellville, 2C1, 262. 
 Tranger v. Sassaman, 466.^ 
 Transfer Co. v. Kelly, 549. 
 Travis v. Pierson, 218, 
 Traylor v. Hughes, 438.. 
 Traywiek v. Keeole, 680. " 
 Tradwell v. Wljittler, 650. 
 Treasurer u.-Cleary, 136, 
 Treat v. Browning, 316. 
 Tremain ». Cohoes Co., 502. 
 Trenton Ins. Co. v. Perrine, 66. 
 ■ Tribble v. Frame, 468. 
 Trigg V. Read, 369. 
 Trow V. Vermont C. R. Co., 574, 611. 
 Trowbridge v. True, 224. 
 Trowbridge v. Soudder, 660. 
 Troy V. Cheshire E. Co., 619. 
 Troy etc. E. Co. v. Boston etc. E Co., 224. 
 True V. Plumley, 305, 312, 334. 
 True V. Thomas, 370. 
 Trulock V. Merte, 606. 
 Truman v. Taylor, 295. 
 Trussell v. Scarlett, 336. 
 Trustees etc. v. Tfoumans, 178. 
 Truth Pub. Co. v. Reed, 301. 
 Tryon v. Whitmarsh, 9. 
 Tuberville v. Savage, 252. 
 TuberviUe v. Stampe, 90, 616. 
 'Vudkv. Downing, 358. 
 Tucker v. Call, 326. 
 Tucker v. Cannon, 392, 
 Tucker v. Cole, 114 
 Tucker ti, Illinois C. E. Co., 537. 
 Tucker v. Jenls, 87. 
 Tucker v. Linger, 431. 
 Tucker v. Moreland, 60. 
 Tucker v. New York etc. E. Co., 585. 
 Tucker v. Walters, 257. 
 Tucker Mfg. Co. v. Fairbanks, 660. 
 
740 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Tador Iron Works v. Weber, 121. 
 
 Tael V. Weston, 99, 101. 
 
 Taff V. Warman, 571, 576, 588. 
 
 Tall V. Dayid. 336. 
 
 Tnller v. Voght, 110. 
 
 Tulljd?e V. Wade, Wi, 275. 
 
 Tunnell V. Furguson, 323. 
 
 Tanney v. Midland B. Co., 118. 
 
 Tunstall v. Christian, 493, 609. 
 
 Turner v. Bachanan, 667. 
 
 Turner v. Estes, 271. 
 
 Turner v. Holtzman, 495. 
 
 Turner v. Eingwood Highway Board, 488, 
 
 494. 
 Turner v. State, 276, 403. 
 Turner v. Stevens, 346: 
 Turner v. Thompson, 509. 
 Turnpike Oo. v. Champney, 148. 
 Turpen v. Booth, 145. 
 Tnrpih v. Remy, 265. 
 TurriH v. Dolloway, 311. 
 Tuteln V. Harley, 42. 
 Tuthill V. Wheeler, 432. 
 Tnttle V. Bishop, 312. 
 Tuttle V. Ballway, 117. 
 Tuttles'i). Chicago, B. I. etc. E. Co., 271. 
 T. W. & W. E. V. Beggs, 629. 
 Tweedy D. State, 256. 
 Twitchell v. Bridge, 363. 
 Twornley v, Central Park E. E. Co., 595. 
 Twycross v. Grant, 73, 76. 
 Tyler v. New York etc. E. Co., 552. 
 Tyler v. Bicamore, 43. 
 Tyler v. W. U Tel. Co., 56, 674. . 
 Tyner W.Cory, 202. 
 Tyre v. Cansey, 351. 
 Tyrringham'B Co., 474. 
 Tyson v. South & N. A. B. Co., 125. 
 
 u. 
 
 Udell V. Atlierton, 355. 
 
 Ulmer v. Leland, 394. 
 
 Umiack v. Lake Shore, etc. E. Co., 193. 
 
 Umbler v. Whipple, 243. 
 
 UnderhillD.Gofr,683. 
 
 Underbill ». Welton,296. 
 
 Underwood v. Henson, 170. 
 
 Unger v. Forty-aeoond etc. E. Co., 534. 
 
 Union Ice Co. v. Crowell, 218. 
 
 Union P. Ey. Co. v. Estes, 642. 
 
 United States v. Alden, 151. 
 
 United States v. Hand, 25U. 
 
 United States v. Kelley, 489. 
 . tjnited States v, Elerman, 250. 
 
 United States v. Lunt, 251. 
 
 United States v. Memphis etc. E. Co., 67. 
 
 United States v. Ortega, 248. 
 
 United States v. Eichardson, 250. 
 
 United States v. Small, 251. 
 
 tjnited States Illaminatlng Co. v. Grant, 
 614. 
 
 United States Mortgage Co. v. Hender- 
 son, 26. 
 
 University v. Tucker, 429. 
 
 University of North Carolina v. State 
 National Bank, 438. 
 
 Updegrove v. Zimmerman, 324. 
 
 Upton V. Hame, 391. 
 
 Upton V. Trlbiloock, 112, 360, 383. 
 
 Upton V. Upton, 299, 
 
 Upton V. Vail, 9, 672. 
 
 Uransky v. Drydock, E. B. & B. E. Co., 
 
 271. 
 Usher v. Severance, 305. 
 UslU V. Hales, 341. 
 Uttley V. Burns, 27. 
 
 V. 
 
 Vail V. Pacific E. Co., 606. 
 
 Valentine v. Duff, 438. 
 
 Vallance v. Falle, 229. 
 
 Van Aukin v. Westfall, 294. 
 
 Van Arnam v. Ayree, 272. 
 
 Van Arsdale v. Howard, 369. 
 
 Van Atsdal v. Bnillngton etc., Ey. Co., 
 
 244. 
 Vance v. Erie E. Co., 68, 112. 
 Van Brocklln v. Fonda, 370. 
 Van Brunt v. SchenCk, 640. 
 Vance v. Throckmorton, 642. 
 Vance v. Vance, 243. 
 Vanden burgh v. Truax, 39, 252, 491. 
 Van Den. Henvel v. National Furnace 
 
 Co., 119. 
 VanderbeCk v. Hendry, 639. 
 Vanderbeyden v. Young, 188. 
 Vanderpool v. Husson, 92. 
 Vanderpool v. Eichardson, 689. 
 Vanderslip v. Eoe, 295, 312. 
 Van Derveer v. Sutphtn,324. 
 Vauderzee v. McGregor, 338. 
 Van Densen v. Young, 218, 458. 
 Van De Vere v. Kansas City, 485. 
 Van De Wiele v. Callahan, 394. 
 Vandlver v. Pollak, 232. 
 Van Epps V, Harrison, 358. 
 Van Home v. Stnnda,447. 
 Van Horn v. Van Horn, 402, 409. 
 Van Kewren v. Switzer, ''41. 
 Vanleen v. Fain, 535. 
 Van Lenven v. Lyke, 613. 
 Van Ness v. Hamilton, 294. 
 Van Orsdal v. Ballroad Co., 519. 
 Van Pelt v. Davenport, 70. 
 Van Steenbergh v. Bigelow,li9. 
 Van Tassell v. Capron, 337. 
 Van Vacter u. McKillip, 373. 
 Van Vacto^w. Walkup, 311. 
 Varney v. Manchester, 668. 
 Varnum v. Martin, 26. 
 Varril v. Heald, 223. 
 Vaspor V. Edwards, 474, 480. 
 Vaugban v. TafE Vale E. Co., 156, 608, 617. 
 Vaughn v. Menlove, 539, 541. 
 Vausse V. Lee, 328. 
 Vawter v. Miss., exx^, Co., 82. 
 Veagie v. Williams, 384. 
 Veerol v. Veerol, 375. 
 Veneman v. Jones, 265. 
 Venneman v. Powers, 64. 
 Verder v. Ellsworth, 614. 
 VerhaU v. Van Houwenlengen, 274. 
 Vermilya v. Ohicaso, etc., E. Co., 218. 
 Vernon v. Keys, 360. 
 Vestry ol St. Pancras v. Batterbnrg, 229. 
 Vicars V. Wilcocks, 291, 671. 
 Vlckers v. Atlanta & W. P. E. Co., 585. 
 Vickers ii. Stonemao, 294, 313, 333. 
 VIcksbnrg, etc. E. Co. v. Patton, 610. 
 Victorian Eallway Commissioners i>. 
 
 Coultas, 56. 
 Victory v. Baker, 153. 
 
TABLE OF CASES CITED. 
 
 741 
 
 The Kefereuces are to Pages. 
 
 victory V. Fltzpatrlok, 228. 
 
 Village of JefferBon v. Ubaptnan, 552, 
 
 Village of St. John v. MoFarlan, 528. 
 
 VlUepique v. Shulor, 279. 
 
 Vinal V. Core, 893. 
 
 Vmas V. Merchants, etc., Ins. Co., 67,328. 
 
 Vincennes Water Supply Co. v. White, 92. 
 
 Vincent v. Cook, 530. 
 
 Voltz V. Blackman, 220. 
 
 Von Kettler v. Johnson, 264. 
 
 Vorce V. Page, 522. 
 
 Vosberg v. Putney, 252. 
 
 Vose V. Eagle Life Ins. Co., 352. 
 
 Vessel ». Cole, 278, 279. 
 
 Vossen v. Dantel, 199. 
 
 Vredenbnrg v. Behan, 613. 
 
 Vredenburgh v. Hendricks, 265. 
 
 Vrooman v. Lawyer, 614. 
 
 "Wabash, etc., R. Co. v. Farver, 92. 
 Wabash, etc., E. Co. v. Locke, 42, 164, 
 
 538. 
 Wabash, etc., Co. v. Shaokett, 82, 549. 
 Wabash Print. & Pub. Co. v. Crumrlne, 
 
 333. 
 "Wabash E. Co. v. Savage, 105. 
 Wabash W. Ky. Co. v. Morgan, 218. 
 WaddeU v. Slmonson, 122. 
 Wade v. Kalbflelsch, 666. 
 Wade V. Leroy, 218. 
 Wadsworth v. W. U. Tel. Co., 65. 
 Wagaman v. Eyers, 311. 
 Waggoner v. Jermalne, 530. 
 Wagner v. Bill, 64. 
 Wagner v. Blssell, 611. 
 Wagner v. Holdbnnner, 324. 
 Wagner ». Peterson, 658. 
 Wagstaff V. Schippel, 393. 
 Wahle V. Beinbach, 505. 
 Walte V. N. E. E. Co., 583. 
 Wakellu v. L. & S. W. E. Co., 546, 547, 
 
 548, 567, 578. 
 Wakely v. Hart, 263. 
 Wakeman v. Bailey, 375. 
 Wakemau v. New York etc. E. Co., 224. 
 Wakeman v. Eohinson, 172. 
 Walcott V. Hall, 316. 
 Walden v. Peters, 388. 
 Waldron v. Haverhill, 70. 
 Waldron v. Waldron, 272. 
 Walker v. Boiling, 117. 
 Walker v. Brewster, 507. 
 Walker v. Camp, 393, 395. 
 Walker v. Cronln, 275,407, 672. 
 Walker v. Fltts, 186. 
 Walker v. Hallock, 138, 146. 
 Walker v. Mobile, etc., E. Co., 369. 
 Walker v. State, 248, 265; 
 Walker v. Tribune Co., 291, 321. 
 Walker v. Wlokens, 334. 
 Wall V. State, 257. 
 Wall V. Trumbull, 145. 
 Wallace v. Aner, 495. 
 Wallace v. Clark, 281. 
 Wallace v. Clayton, 606. 
 Wallace v. Finberg, 110. 
 Wallard v. Wortham, 412, 537. 
 Waller v. Lasher, 93. 
 Walling V. Potter, 642. 
 Wants V. Harrison, 459. 
 
 Walpole V. Carlisle, 27. 
 
 Walsh V. Chicago, etc. E. Co., 685. 
 
 Walsh V. Hall, 376. 
 
 Walsh V. Whiteley, 197. 
 
 Walser v. Thies, 399. 
 
 Walter v. Commissioners, 530. 
 
 Walter v. Sample, 396. 
 
 Walter v. Selfe, 496, 498 
 
 Walters v. Moss, 610. 
 
 Walters v. Smoot, 347. 
 
 Walton V. Booth, 26, 621. 
 
 Walton V. File, 466. 
 
 Walton V. New York, etc., E. Co., 108. 
 
 Walton V. Singleton, 295, 312. 
 
 Wandell v. Edwards, 281. 
 
 Wandsworth Board of Works v. United 
 Telephone Co., 423. 
 
 Wanless's Case, 567. 
 
 Wannamaker v. Bowes, 223. 
 
 Ward V. Beane, 333. 
 
 Ward V. Chamberlain, 96. 
 
 Ward «. Clark, 296. 
 
 Ward V. Conateer, 59. - 
 
 Ward V. Dick, 334. 
 
 Ward V. Hobbs, 25. 
 
 Ward V. Hudson Elver Bldg. Co., 684. 
 
 Ward V. Lloyd, 237, 238. 
 
 Ward V. Moffitt, 435. 
 
 Wards). Neal, 509. 
 ' Ward V. Vance, 606. 
 
 Ward V. Young, 88, 91. 
 
 Warden v. Whalen, 332. 
 
 Ware v. Olowney, 301. 
 
 \Vare ». Johnson, 466. 
 
 Warlow V. Harrison, 365. 
 
 Warmlngton v. Atchison, etc., E. Co., 
 120. 
 
 Warner v. Erie, etc. E. Co., 193. 
 
 Warner v. Payne, 328. 
 
 Warner v. Eiddiford, 259. 
 
 Warner v. Shed, 141. 
 
 Warner v. Winters, 114. 
 
 Warnoch v. Mitchell, 307. 
 
 Warren v. Banning, 660. 
 
 Warren v. Cavasaugh, 523, 
 
 Warren v. State, 251. 
 
 Warren v. Warrren, 272. 
 
 Warring v. Morse, 630. 
 
 Warwick v. Hutchinson, 684. 
 
 Warwick v. Wah Lee, 505. 
 
 Washington etc. B. B. Co. u. McDade, 
 
 596. 
 Washington v. Bait & O. E. Co., 563. 
 Washington & G. E. Co. v. Fobriner, 569. 
 Wasner v. Delaware etc. Co., 530, 633. 
 Wason V. Walter, 320, 340. 
 Wasson V. Mitchell, 145. 
 Waterburg v. Lockwood, 141. 
 Water Supply Co. v. City of Potwin, 521. 
 Watertown v. Sawyer, 506. 
 Watkins v. Baird, 399. "^ 
 
 Watkins v. Hall, 316. 
 Watson V. City of Kingston, 163. 
 Watsou V. Cross, 651. 
 Watson V. McCarthy, 299. 
 Watson V. Moeller, 213. 
 Watson V. Moore, 328, 327. 
 Watson V. Mulrbead, 26. 
 Watson V. Oxanna Land Co., 669. 
 Watson V. State, 412. 
 Watson V. Trask, 304. 
 Watson V. Watson, 243. 
 Watt V. Porter, 435. 
 Waugh V. Shunk, 26. 
 
742 
 
 TABLE OF CASKS CITED. 
 
 The References are to Pages. 
 
 Waugh V. Waugh, 312. 
 
 Waveriy T. & I. Oo. v. St. Louis Cooper- 
 age Co., 435; 
 
 Way V. Illinois, etc. E. Co., 194. 
 
 Way V. Powers, 100. 
 
 Way V. Townsend, 138. 
 
 Weakley «. Bostwiok, 388. 
 
 Weathersbee «. Karrar, 63. 
 
 Weathertord v. Fishback, 358. 
 
 Weaver v. Devendorf, 145. 
 
 Weaver©. Hendrick, 334. 
 
 Weaver v. Ward, 160, 170. 
 
 Weaver v. Wible, 447. 
 
 Webb V. Beavan , 297. 
 
 Webb V. Bird, 609. 
 
 Webb V. Denver & E. G. E. Co., 121. 
 
 Webb V. Portland Mfg. Co., 9, 214, 430. 
 
 Webb V. Eome, etc. E. Co., 504, 562. 
 
 Webb V. Walker, 464. 
 
 Webber v. Barry, 409. 
 
 Webber v. Closson, 611. 
 
 Webber v. Davis, 434. 
 
 Webber v. Kenny, 265. 
 
 Webber v. Piper,- 117. 
 
 Weber Wagon Co. v. Ki^hl, 194. 
 
 Webster n. Bally, 353, 375. 
 
 Webster v. Drinkwater, 659. 
 
 Webster v. Whitwortli. 
 
 Weckerly v. Geyer, 148. 
 
 Wedgwood v. Cbicago, etc. E. Co., 193. 
 
 Weed V. Bibbins, 312. 
 
 Weed V. Panama K. Co., 110, 636. 
 
 Weems v. Mathieeon, 125. 
 
 Weidner v. Phillips,e58. 
 
 Weightman v. Wasbington, 67. 
 
 Weigretfe v. Darr, 193. 
 
 Well V. Eicord, 506. 
 
 Weil V. Schmidt, 305. 
 
 Weir's Appeal, 497. 
 
 Weir V. Allen, 304. 
 
 Weir V. Bell, 354. 
 
 Weis V. Hoss, 313. 
 
 Welch V. Bagg, 658. 
 
 Welch V. Dnran, 252, 503, 637. 
 
 Welch V. Jngenbeimer, 323, 545. 
 
 Welch V. McAllister, 627. 
 
 Weli.h V. f<towell, 516. 
 
 Welch i;. Tribune Pub. Co., 334. 
 
 Weldu. Oliver, 448. 
 
 Weld.u. Saratoga & S. E. Co., 535. 
 
 Weldonc. DeBathe, 66. 
 
 Weldon v. Harlem K. Co., 108. 
 
 Weldonjj. Neal,246. 
 
 Weldon v. Wlnslow, 65. 
 
 Welfare v. London & Brighton E. Co., 639. 
 
 Wellington v. Downer Kerosin Oil Co., 
 615. 
 
 Wellington v. Small, 409. 
 
 Wellock V. Constanlire, 236. 
 
 Wells V. Abrahams, 236, 237. 
 
 Wells V. Padgett, 635. 
 
 Welsh V. Bell, 425. 
 
 Weltoyr. Indianapolis, etc. R. Co., 576. 
 
 Wendell w. Baxter, 629. 
 
 Wendell v. Mayor of Troy. 70. 
 
 Wendell v. New York etc. 11. Co., 5.14, ,585. 
 
 Wendell v. Eailway Co., 198. 
 
 Wennan v. Ash, 309, 
 
 Wennhak v. Morgan, 221, 309. 
 
 Wentworth v. Portsmouth & D. R. Co., 
 452, 453. 
 
 Wentworth o. Sawyer, 142. 
 
 Werges v. St. Louis etc., Ey . Co., 244. 
 
 Wert V. Strause, 278, 
 
 Wesley Coal Co. v. Healey, 889. 
 
 Wesson v. Washburg Iron Co., 506, 618. 
 
 West V. Berlin, 606, 630. 
 
 West V. Forrest, 33, 537. 
 
 West«>, Hanrahan, 295. 
 
 West V. Hayes, 395, 
 
 West V. Louisville, O. & L. R. Co., 514. 
 
 West V, Moore, 61. 
 
 West V. Nibbs, 472, 479, 480. 
 
 West V. Pritchard, 683. 
 
 West V. Smallwood, 266. 
 
 West V. Walker, 324. 
 
 Westbrook v. Mize, 230. 
 
 Westerbrook v. Mobile etc. E. Co., 585. 
 
 Westerfleld v. Levi Bros., 585. 
 
 Western & A. E. Co. v. Young, 5S5. 
 
 Western Bank of Scotland v. Addle, 363, 
 387. 
 
 Western News Co. v. Dilmarlh, 67. 
 
 Western Ey. v. Mutch, 45. 
 
 West etc. Co. v. Eegmert, 225. 
 
 Westfleld v. Mayo, 232. 
 
 Westgate v. Carr, 610. 
 
 Westlake v. Westlake, 272. 
 
 West London Commercial Bank v. Kit- 
 son, 361. 
 
 Westmore v. Mellinger, 398, 
 
 West Orange v. Field, 71. 
 
 Westjoint Iron Co. v. lleymert, 483. 
 
 Wetmore v. Scovell, 347. 
 
 Whalley v. Lane and Yorkshire R. Co., 
 205, 
 
 Wharf V. Roberts, 378. 
 
 Wharfboat Assn, v. Wood, 51, 
 
 Wharton v. Wright, 320, 
 
 Whatman v. Pearson, 101. 
 
 Wheatley v. Baugh, 178. 
 
 Wheaton v. Baker, 414, 
 
 Wheaton v. Beecher, 310, 321,323. 
 
 Wheelden v. Lowell, 378, 469. 
 
 Wheeler v. Boyce, 68. 
 
 Wheeler v, Gavin, 261, 
 
 Wheeler v. Lawson, 450. 
 
 Wheeler v. Mason Manufacturing Co., 
 129. 
 
 Wheeler v. Moore, 422, 
 
 Wheeler ti, Nestitt, 394. 
 
 Wheeler v. Patterson, 148. 
 
 Wheeler v. San Francisco, etc, E,, 651, 
 
 Wheeler v. Shields, 315. 
 
 Wheeler v. Wheeler, 448. 
 
 Wheeler v. Worcester, 200. 
 
 Wheelock v. Wheelwright, 443. 
 
 Wheelwright v. DePeyster, 414, 
 
 Whelan v. New York, etc, E, Co., 218, 
 
 Wheless v. Second Nat, teank, (iS. 
 
 Whetmore v. Tracy, 515. 
 
 Whipple V. Fuller, 398. 
 
 Whirley v. Whiteraan, 568. 
 
 Whitaket v. Canthome, 464. 
 
 Whitakev v. Forbes, 239, 
 
 Whitbeok v. Dubuque etc, E, Co., 611. 
 
 Whitcomb v. Hungerford, 482. 
 
 White V. Bank, 104. 
 
 White V. Boston, etc., B. Co., 637. 
 
 White V. Brantley, 425. 
 
 White V. Carr, 395. 
 
 White V. Carroll, 33, 329. 
 
 White V. Chicago. M. & St, Py, Co., 692. 
 
 White V. Cincinnati etc. Ey. Co., 561. 
 
 White V. Dinglcy, 399. 
 
 White V. Elwell, 469. 
 
 White V. France, 628. 
 
 White V, Jameson, .531. 
 
TABLE OF CASES CITED. 
 
 743 
 
 The References are to Pages. 
 
 White V. Lang, 208. 
 
 White V . Madison, 384. 
 
 White V. Manhattan Ey. Co., 459, 461. 
 
 White V. MoNett, 683. 
 
 White V. Missouri Pac. R. Co., 552. 
 
 White ». Murtland, 277, 278, 281. 
 
 White V. Nellls, 278. 
 
 White V. Nichols, 288, 329. 
 
 White V. Phelps, 448. 
 
 White V. Ross, 271. 
 
 White V. Sawyer, 68, 383. 
 
 White V. Spettigue, 234. 
 
 Whitei!. State, 251. 
 
 White V. Thomas, 685. 
 
 White V. Wall, 442. 
 
 White Water Valley Canal Co. v. Com- 
 
 eggs, 430. 
 White Co., G. G. v. Miller, 225. 
 Whitensaok v. Fhiladclpfua & R. R. Co., 
 
 Whitesellii. Forehand, 683. 
 
 Whitfordv. Panama E. Co., 81. 
 
 Whitham v. Kershaw, 219, 222, 227. 
 
 Whiting V. Hill, 376. 
 
 Whiting V. Johnson, 392. 
 
 Whitney v. Allaire, 358. 
 
 Whitney v. Allen, 328. 
 
 Whitney v. Bartholomew, 504. 
 
 Whitney Co., A. H.«. Barnham, 680. 
 
 Whitney v. Elmer, 278. 
 
 Whitney v. Martine, 26. 
 
 Whlton V. Chicago, etc., R. Co., 81. 
 
 VVhltson V. May, 392. 
 
 Whittaker,i;x parte, 359. 
 
 Whlttaker v. Collins, 53!>. 
 
 Wicker v. Hotchklss, 396. 
 
 Wicks V. Fentham, 396. 
 
 Widrig V. Oyer, 286, 294. 
 
 Wiedmer v. New York Elevated E. Co., 
 636. 
 
 Wiel V. Israel, 287. 
 
 Wiener v. Hammel, 92. 
 
 Wiggett V. Fox, 126. 
 
 Wigsell V. SchooUor Indigent Blind, 227. 
 
 Wilber v. Johnson, 685. 
 
 Wilbraham v. Suow, 432. 
 
 Wilcox V. Iowa Wes. Univ., 363. 
 
 Wilcox V. Moon, 308. 
 
 Wilcox V. Richmond & D. R. Co., 55. 
 
 Wilcox i>. Wheeler, 225. 
 
 Wild V. Waygood, 95. 
 
 Wlldee V. MoKee, 403. 
 
 Wilder «. aoldeD,395. 
 
 Wilder v. McEee, 407. 
 
 Wilder V. Wilder, 611. 
 
 Wilds V. Bogan, 281. 
 
 Wilds V. Layton, 429. 
 
 Wilkes V. Hungerlord Market Co., 490. 
 
 Wllkinss). Day, 491. 
 
 Wllkins V. Gilmore, 91. 
 
 Wilkinson v. Clanson, 358. 
 
 Wilkinson v. Detroit Steel and Spring 
 
 Works, 643. 
 Wilkinson v. Haygarth, 449. 
 Wilkinson v. Searey, 223. 
 Wilkinson v. Wilkinson, 429. 
 WiU'ardj;. Mathesas, 610. 
 Willett V. Willett, 658. 
 Wllley V. Carpenter, 253. 
 Willey V. Hunter, 218. 
 Williams v. Carle. 
 WHliams v. Dayenport, 300. 
 Williams v. Deen, 435. 
 Williams V. Dickinson, 234, 493. 
 
 Williams V. Edmunds, 574. 
 Williams V. Flood, 462. 
 Williams V. Grcaley, 198, 534. 
 Williams V. Great Western Ry. Co., 47. 
 Williams V. Gunnels, 326. 
 Williams v. G. W. E. Co., 653. 
 Williams V. Higgins, 26. 
 Williams v. Hill, 291, 293. 
 Williams v. Holdridge, 299. 
 Williams V. Jones, ins. 
 Williams v. Karnes, 286. 
 Wllliama v. Moray, 614. 
 Williams V. Morrison, 463. 
 Williams V. Palace Car Co., 87, 98. 
 Williams I!. Planter's Ins. Co., 68. 
 Williams V. Pomcroy Coal Co., 16S. 
 Williams V. Russell, 680. 
 Williams v. Sheldon, 230. 
 Williams v. Smith, 341, 434. 
 Williams V. Spencer, 474. 
 Williams v. Sparr, 362, 369. 
 Williams v. Van Meter, 396. 
 Williams v. Wood, 672. 
 Williamson v. Allison, 359, 365, 649. 
 Williamson v. Freer, 307, 344. 
 Wmiamsport, etc., E. Co. v. Common- 
 wealth, 136. 
 WilliAgham v. King, 59. 
 Willis V. Maclaohlan, 139. 
 Willis V. McMahan, 651. 
 Willis V. Oregon E. & N. Co., 122. 
 Wills V. Noyes, 396. 
 WiUy V. Mnlledy, 24. 
 Wilmarth w. Burt, 262. 
 Wilmarth v. Woodcock, 492. 
 Wilmot V. Howard, 26. 
 Wilson, Ex parte, 392. 
 Wilson V. Barber, 454. 
 Wilson V. Beighler, 295. 
 Wilson V. Chalfant. 462. 
 Wilson V. Cottman, 301, 302. 
 Wilson V. Dubois, 24. 
 Wilson V. Dumreath etc. Co., 122. 
 Wilson V. Eggleston, 357. 
 Wilson ». Fitch, 66, 346. 
 Wilson V. Franklin, 144. 
 Wilson V. Goit, 298. 
 Wilson V. Gunning, 40. 
 Wilson V. MoCrory, 295. 
 Wilson^ 1). McLaughlin, 437. 
 Wilson V. Merry, 117, 124. 
 Wilson V. Newberry, 604, 607. 
 Wilson V. New York etc. E. Co., 537. 
 Wilson V. Noonan, 333. 
 Wilson v.. Northern Pac. E. Co., 567. 
 Wilson V. People, 252. 
 Wilson V. Peverly, 112, 503. 
 Wilson V. Robinson, 264. 
 Wilson V. Rochester, etc., R. Co., 24. 
 Wilson V. Runyan, 291. 
 Wilson V. St. Paul, etc. R. Co., 463. 
 Wilson V. Tatum, 296. 
 Wilson V. The Mary, 151. 
 Wilson V. Tnmraan, 88. 
 Wilson V. Vaughn, 235. 
 Wilson V. Waddell, 603. 
 Wilson V. Wheeling, 70. 
 Wilson V. Wilmington, etc. R. Co, 611. 
 Wilson V. Wilson, 243. 
 Wilson V, Woonan, 305. 
 Wilste V. State Board Bridge Co., 108. 
 Wilt V. Welsh, 60, 62. 
 Wilton Mfg. Co. V. Butler, U2. 
 Wilwarth v. Mountford, 394. 
 
744- 
 
 TABLE OF CASES CITED. 
 
 The References are to Pages. 
 
 Wimer v. AUbangh, 346. 
 
 Wimer v: Smith, 350. 
 
 Winblgler v. City of Los Angclos, 69. 
 
 Winoliell v. Argus Co., 287. 
 
 Windham v. Bhame, 619. 
 
 Windsor v. Oliver, 300. 
 
 Wlnebiddle v. Porterfleld, 394. 
 
 Wing V. N. T. etc. R. Co., 606. 
 
 Wlnne v. Kelly, 684. 
 
 Winslow V. Bloomlngton, 505. 
 
 Winsmore v. Greenbant, 276. 
 
 Winter v. Bandel, 375, 376. 
 
 Winter v. Brockwell, 461. 
 
 Winter t'. Samwalt, 297. 
 
 Winterbottom v. Lord Derby, 490. 
 
 Winterbottom v. Wright, 632, 666. 
 
 Wlntringham v. Laloy, 9. 
 
 Wintusha v. Lonisville & N. K. Co., 23 
 
 Wisconsin Cent. E. Co. ti. Rose, 230. 
 
 Wise V. Fuller, 358. , 
 
 Wiswell V. Doyle, 684. 
 
 Witascheck v. Glass, 399. 
 
 Witcher v. Brewer, 114. 
 
 Witherspoon v. Woody, 143. . 
 
 Witherwar v. Riddle, 383. 
 
 Wittlck V. Traun, 420. 
 
 Wohlbohrt v. Beokert, 621. 
 
 Wolcott V. Meliok,S04. 
 
 Wolf V. Chalker, 9. 614. 
 
 Wolf V. Mills, 114. 
 
 Wolf V. St. Louis, etc., Co., 606. 
 
 Wolf V. Wolf, 272. 
 
 Wolfe V. Merserean, 101. 
 
 Welters v. Schultz, 222. 
 
 Wonderly v. Nokes, 323. 
 
 Wonson v. Sayward, 286. 
 
 Wood V. Atkinson, 482. 
 
 Wood V. Bailey, 399. 
 
 Wood V. Braxton, 482. 
 
 Wood V. Clapp, 26, 27. 
 
 Wood V. Cobb, 95. 
 
 Wood V: Detroit St. By., 110. 
 
 Wood V, Durham, 347. 
 
 Wood V. Graves, 260, 899. 
 
 Wood V. Leadbitter, 460, 463. 
 
 Wood V. Mathews, 271, 274. 
 
 Wood V. Kuland, 138. 
 
 Wood V. The Ind. School Dlst., 637. 
 
 Wood V. Wind, 498. 
 
 Wood «. Weir, 39L 
 
 Wood V. Wiman, 328. 
 
 Wood V. Wood, 147. 
 
 Woodard v. Washburn, 260. 
 
 Woodbury v. Thompson, 293, 298. 
 
 Worden v. Western, 239. 
 
 Wooden v. Western etc. R. Co., 123. 
 
 Woodhouse v. Walker, 76, 427. 
 
 Woodle V. Whitney, 632. 
 
 Woodley v. Metr. Dist. B. Co., 194. 
 
 Woolfolk V. Macon & A. R. Co., 544. 
 
 Woodman v. Howell, 201, 204. 
 
 Woodman v. Hubbard, 62, 443. 
 
 Woodman v. Kilbourn Mfg. Co., 484. 
 
 Woodruff V. Richardson, 327. 
 
 Woodruif V. Woodruff, 252. 
 
 Woods V. Davis, 141. 
 
 Woods V. Flnnell, 399. 
 
 Woods V. Jones, 567. 
 
 Woods V. Lindrall, 123. 
 
 Woods V. St. Paul, etc., B. Co., 193. 
 
 WoodsD. Wlman, 307. 
 
 Woodson V. Milwaukee, etc. B. Co., 5( 
 
 Woodward v. Barnes, 63. 
 
 Woodwards. Chicago, etc., R. Co., 81. 
 
 Woodward v. Michigan, etc., B. Co., 81, 
 
 82. 
 Woodward v. St. Louis, etc., B.Co., 68. 
 Woodward v. Walton, 276. 
 Woodward v. Washburn, 662. 
 Woolwine v. 0. &, O. B. Co., 544. 
 Woodworth v. Mills, 394. 
 Woodyear 4). Schaef er, 492. 
 Worheide v. Missouri C. & T. Co., 164. 
 Works V. Junction K. Co., 500. 
 Women ». Maine Cent. E. Co., 538. 
 Wormby v. Gregg, 614. 
 Worth V. Butler, 31L , 
 
 Worth V. Edmunds, 606. 
 Worth V. Gilling, 614. 
 Worthlngton v. Mencef, 540. 
 Wozelka v. Hettrick, 305, 327. 
 Wragg V. Commercial Gas Co., 505. 
 Wren v. Welld, 389. 
 Wright V. Brown, 369. 
 Wright V. Calhoun, 383. 
 Wright V. Clark, 164. 
 Wright V. Crompton, 84. 
 Wriglit V. Deteoit, etc. By. Co., 584. 
 Wray ». Evans, 92. 
 Wright V. Lathrop, 338. 
 Wright V. Leonard, 66. 
 Wright V. Maiden & M. B. B. Co., 683. 
 Wright V. Paige, 294. 
 Wright V. Pearson, 615. 
 Wright V. Bamscot, 425. 
 Wright V. Bouse, 138. 
 Wright V. Stowe; 213. 
 Wright V. Syracuse etc. E. Co., 244. 
 Wright V. West, 243. 
 Wright V. Wilcox, 84, 100, 110. 
 Wright V. Wright, 610. 
 Wroe V. State, 495. 
 W. U. T. Co. V. Adams, 674. 
 W. U. T. Co. V. Berdue, 55. 
 W. U. T. Co. V. Berlnger, 55, 675. 
 W. U. T. Co. V. Blanchard, 674. 
 W. U. T. Co. V. Carter, 55, 56. 
 W. U. T. Co. V. Dubois, 675. 
 W.U. T. Co. V. Jones, 675. 
 W. U. T. Co. V. Lindley, 675. 
 W. U. T.|Co. V. NelU, 674. 
 W. U. T. Co, V. Newhoeue, 56, 675. 
 W. TJ. T. Co. B.Hosentreter, 56. 
 W. U. T. Co. V. Simpson, 211. 
 W. TJ. T. Co. V. Stratemeler, 55. 
 W. XT. T. Co. V. Stephens, 55. 
 Wyandotte, City of, v. Agon, 271. 
 Wyattu. Buell, 328. 
 Wyatt V. Williams, 81. 
 Wyllie V, Pulmer, 95. 
 Wyman v. Leavitt, 55. 
 Wynne v. Parsons, 305. 
 
 Yager v. Atlantic etc. B. Co., 122. 
 
 Tarborough v. Bank of England, 68. 
 
 Yarmouth v. France, 194, 195, 633. 
 
 Yates V. Brown, 96. 
 
 Yates V. Jack, 510. 
 
 Yates V. Lansing, 138. . 
 
 Yates & McCullach Iron Co., 122. 
 
 Yates V. Squires, 108. 
 
 Yates V. Town of West Grafton, 482. 
 
 Yeager v. Knight, 60. 
 
TABLE OF CASES CITED. 
 
 745 
 
 The Beferences are to Pages. 
 
 Yeates v. AlUn, 168. 
 Teates v. Pryor, 350. 
 Yeates v. Bead, 306. 
 Yeaton v. Bailroad Goip., 117. 
 Yerger v. Warren, 108. 
 Yoaknm v. T>ann, SS. 
 Yooum V. Polly, 393. ' 
 Yopst V. Yopst, 271. 
 York V. Pease, 328, 333. 
 Yonng V. Olegg, 307. 
 Young V. Oovell, 674. 
 Young V. Gentts, 217. 
 Young V. Herbert, 138. 
 Young V. Kansas City, 70. 
 Young V, Knbn, Wi. 
 Yonng V. Mason, 434, 
 Young V. Miller, 291. 
 Young V. New York E. Co., 95, 
 
 Young ». Tel. Co., 55. 
 Young V. Vaughan, 113. 
 Yundt V. Hartrunlt, 273. 
 
 z. 
 
 Zabrlskie v. Cleveland, etc. B. Co., 68. 
 
 Zebley V. Storey, 395. 
 
 Zaokray v. Face, 1B5. 
 
 Zlegler v. Day, 121. 
 
 ZellS V. Jennings, 295. 
 
 Zetnp V. Wilmington, etc. E. Co., 574. 
 
 Zerbing v. Mourer, 279. 
 
 Zier «. Hofain, 30. 
 
 Zintek v. Stimson Mill Co., 123. 
 
 Znckermau v. Sonnenschein, 305. 
 
INDEX. 
 
 The italic letters refer to foot-notes; thus 270 s m'.'ans note s on 
 page 270. The American notes are referred to thus (Ed. u.). 
 
 The References are to Pages. 
 
 ABATEMENT, 
 
 of nuisance, 210, 487, 513, 515 (Ed. n.). 
 
 whether applicable to nuisance by omission, 515, 516. 
 
 unnecessary damage must be avoided in, 517. 
 
 ancient process for, 517. 
 
 difficulty of, no excuse, 526, 527 (Ed. n.) 
 
 ABUSE OF PROCESS. See Process. 
 
 ACCIDENT, 
 
 inevitable, damage caused by, 160. 
 
 Inevitable, 160-174. 
 
 American law as to, 162 x, 164-168. 
 
 inevitable, English authorities as to, 168. 
 
 inevitable, cases of, distinguished from those of voluntary risk, 190. 
 
 liability for, in special cases, 595. 
 
 non-liability for, in special cases, 607. 
 
 non-liability for, in performaiice of duty, 608. 
 
 negligence when presumed from, 609. 
 
 ACT OF GOD, 
 
 non-liability for, 60 (Ed. n.), 85, 605. See Wind. 
 
 ACT OF PARLIAMENT, 
 
 remedy under, when exclusive, 228. 
 damage must be within mischief of, 229. 
 
 ACTION, 
 
 forms of, 2, 13, 14. 
 causes of, in contract or tort, 3, 5. 
 on the case, 13, 14, 645. 
 
 convicted felons and alien enemies cannot have, 60. 
 by or against husband and wife, 63 (Ed. n.), 64. 
 personal, effect of party's death on, 71. 
 
 survival of cause of personal, exception In early English law, 72. 
 for Injury per quod servitium amisit, 74, 270, 273. 
 for wrongs to property, when it survives for or against executors, 76. 
 
 f 747 ) 
 
748 INDEX. 
 
 The References are to Pages. 
 
 ACTION — Continued. 
 
 cause of, under Lord Campbell's act, 77-79. 
 
 effect of death of party after appeal, 81 (Ed. n.). 
 
 against viceroy or colonial governor, 135. 
 
 by State against another, 136 (Ed, n.) 
 
 right of, for damage in execution of authorized works, 154, 158. 
 
 where damage is gist of, 215. 
 
 cause of, when it arises, 215, 216 (Ed. n.). 
 
 single or severable, 223. 
 
 for breach of statutory duty, 227. 
 
 against joint wrong-doers, exhausted by judgment against any, 231. 
 
 when wrong amounts to felony, 233. 
 
 local or transitory, 238. 
 
 limitation of, 212. 
 
 runs from what time, 244. 
 
 exception of concealed fraud, 245. 
 
 of deceit against corporations, 386 (Ed. n.). 
 
 malicious bringing of, whether it can be a tort, 397. 
 
 changes in procedure, 483. 
 
 history of forms of, 506. 
 
 early theory of causes of, 644. 
 
 on the case, development of, 645. 
 
 causes of, their modern classification, 646. 
 
 form of, duty not varied by, 652. 
 
 concurrent causes of, in contract and tort, 656. 
 
 against different parties, 660. 
 in contract and tort by different plaintiffs, 662. 
 in tort dependent on a contract not between the same parties, 668. 
 real, when abolished, 2. 
 
 form of writ of right, 14. 
 
 replaced by action of ejectment, 209 a. See Bbmedies. 
 
 ACTS, 
 
 voluntary, liability for accidental consequences of, 163, 167, 173. 
 
 ACTS OF STATE, 132. See Exceptions, Foreign Powbus, Governor, 
 
 ViCBBOY. 
 
 ADMINISTRATOR, 
 
 Maybe sued for death of intestate, when, 81 (Ed. n.), 82 (Ed. n.). 
 
 ADMIRALTY, 
 
 Rule of, where both ships are in fault, 588. 
 
 ADVERTISEMENT, 
 
 Effect of libellous, 310 (Ed. n.). 
 
 ADVICE OF COUNSEL. See Counsel. 
 
INDEX. 749 
 
 The References are to Pages, 
 AGENT, 
 
 Assumption of skill by, 26 (Ed. u.) 
 
 implied warranty of authority by, 74 k. 
 
 liability of principal for authorized or ratified acl;s of, 84. 
 
 fraud of, 112. 
 
 when entitled to indemnity,. 231. 
 
 liability of person assuming authority as, 373. 
 
 misrepresentations by, 883. 
 
 false representations made by or through, 383, 384. 
 
 when personally liable, 384 (Ed. n.). 
 
 how far corporation can be liable for deceit of, 386. 
 
 conversion by, 4411 443 (Ed. n.). 
 
 implied warranty of authority of, 
 
 659. See Peincipai, and Agbnt. 
 
 AGISTER, 
 
 not liable for animal's death, 443 (Ed. n.). 
 
 AGREEMENT, 
 
 unlawful, cause of action connected with, 208. 
 
 AIE, 
 
 no specific right to access of, 309. 
 
 AIE GUN, 
 
 injury with, 551 (Ed. n.). 
 
 ALIEN ENEMY, 
 
 cannot sue, 59, 60 (Ed. n.). 
 
 ALTERDM NON LAEDERE, 
 relation of law of torts to, 12. 
 
 AMENDMENT, 
 
 of statement of claim to increase damages claimed, 218 s. 
 
 AMERICAN LAW, 
 
 as to contributory negligence, 13, 590«, 595. 
 
 want of ordinary care, 49/. 
 
 convicts, 69, 60 (Ed. n.). 
 
 alien enemy, 60 (Ed. n.), 
 
 liability of corporations, 68 t. 
 gives compensation for damage by death, 80. 
 as to liability of master for acts of servant, 88. 
 doctrine of a common employment in, 118. 
 employers' liability in, 127. 
 as to judicial acts, corresponds with English, 141. 
 
 inevitable accident being no ground of liability, 160 et seq. 
 on accidents during Sunday traveling, 208. 
 
750 INDEX. 
 
 The References are to Pages. 
 AMERICAN LAW — Continued. 
 as to slander of title, 390. 
 
 conspiracy not being cause of action, 402 (Ed. n.), 403. 
 
 malicious wrongs, 406. 
 
 waste, 427, 429 r. 
 
 parol licences, 463. 
 
 negligence, 540, 548 6, 666 p, 586. 
 Lumley v. &ye, followed in, 672. 
 as to causing breach of contract, 673. 
 
 rights of receiver of telegram, 674. 
 
 ANGLO-SAXON LAW, 
 of torts, 22. 
 
 ANGUISH, 
 
 no cause of action, 55 (Ed. n.). 
 
 ANIMALS, 
 
 killing of, in defence of property, 202. 
 trespasses by, 202, 203. 
 prevention of cruelty to, 474. 
 mischievous, responsibility for, 613. 
 
 APOTHECARY, 
 
 assumption of .skill by, 26 (Ed. n.). See Poison. 
 
 APPEAL, 
 
 effect of, upon death, 81 (Ed. n.) 
 
 APPRENTICE, 
 
 master may sue for injury to, 271 (Ed. n.). 
 
 ARBITRATION, 
 
 how death of party before award afEects cause of > ction, 71. 
 
 ARBITRATORS, 
 
 not liable for errors in judgment, 140, 145 (Ed. n.). 
 
 ARREST, 
 
 authority of servant to make, 107. 
 officer making, liable for mistakes, 142 (Ed. n.), 143. 
 when justified, 260 (Ed. n.), 261 (Ed. n.), 262. 
 who is answerable for, 264. See False Imprisonment, Imprison- 
 ment, 
 
 ASPORTATION, 425. 
 
 ASSAULT, 
 
 corporations liable for, 67 (Ed. n.). 
 
 when not justified by consent, 186. 
 
 acts for benefit of persons who cannot consent, 199, 200. 
 
INDEX. 751 
 
 The References are to Pages. 
 ASSAULT — Continued. 
 self-defence, 201, 255. 
 what is, 219, 252. 
 
 what is not, 251 (Ed. n.), 252, 254. 
 words cannot be, 252 (Ed. n.), 264. 
 justification by consent, 253 (Ed. n.), 254. 
 menace distinguished from, 258. 
 
 when action tjarred by summary process, 258. SeeDBFENCE, Ski.i.- 
 Dbfencb. 
 
 ASSENT. See Consent. 
 
 ASSETS, 
 
 following property orits value into wrong-doer's, 81. 
 
 ASSUMPSIT, 
 
 action of, its relation to r sgligence, 53 1 . 
 development of, from general action ou the case, 648. 
 implied, where tort waived, 658. 
 
 ASSUMPTION OF SKILL. See Agent, Apothecary, Attorney, 
 Caterer, Engineer, Master and Servant, Physicians and Buu ■ 
 GKONS, Skill. 
 
 ATTORNEY, 
 
 assumption of skill by, 26 (Ed. n.). 
 
 slander of, 300 (Ed. n.). 
 
 immunity of, 329 (Ed. n.), 300. See Counsel. 
 
 AUTHORITIES OF NECESSITY, 
 exception of, 151. 
 
 AUTHORIZED WORKS, 
 
 exception of, liability in, 152, 608. 
 care required in, 157. 
 
 AVERAGE, 
 
 general law of, 200. 
 
 BAILEE, 
 
 justification of, in re-delivery to bailor, 442. 
 
 interpleader by, 442, 443. 
 
 excessive acts of, when conversion, 442, 443. 
 
 liable to action of trespass for abusing subject-matter of bailment 
 
 at will, 452. 
 bailment Wer by, 453. 
 and bailor, concurrent right of suit in, 454, 
 
 BALLOON, 
 
 trespass by, 40 u, 423. 
 
752 INDKX. 
 
 The References are to Pages, 
 
 BANK, 
 
 check fraudulently drawn, 369 (Ed. n.). 
 conversion by, 434 (Ed. n.). 
 
 BANKEUPTCY, 
 
 no duty to prosecute upon trustee In, 236. 
 
 debt discharged by, in American law, 241. 
 
 imputation of, to tradesman, actionable, 302 (Ed. n.), 303. 
 
 malicious proceedings in, 400. . 
 
 BAKBISTEE, 
 
 revising, powers of, 139. 
 
 slander of, 301 (Ed. n.), 303. And see Attorney, Counsel. 
 
 BATXEEY, 
 
 corporation liable for, 67 (Ed. n.). 
 what Is, 347-249. See Assault. 
 
 BELLS, 
 
 ringing of, when a nuisance, 495 (Ed. n.). 
 
 BICYCLE, 
 
 riding over person with, 248 (Ed. n.). 
 
 BILL-POSTER, 
 
 employer liable for wantonness of, 100 (Ed. n.). 
 
 BLASTING, 
 
 may be a nuisance, 502 (Ed. n.). 
 
 BOARDEE, 
 
 defined, 642 (Ed. n.). 
 
 BOAT, 
 
 liability of owner, 100 (Ed. n,.) . See Ship. 
 
 BOILING ESTABLISHMENTS, 
 may be a nuisance, 505 (Ed. n.). 
 
 BOXING-MATCHES, 
 
 generally unlawful, 186 (Ed. n.). 
 
 BEANCHBS, 
 
 overhanging. See Tree. 
 
 BEEACH OF PEACE, 
 
 justifies arrest, 261 (Ed. n.), 262 (Ed. ii.}, 264 I. 
 
 BREACH OF PROMISE. See Marriage. 
 
 BREAKING DOORS, 
 
 when justified, 471. 
 
 BROKER, 
 
 liable for conversion, 441 (Ed. n.). 
 
INDEX. 753 
 
 The References are to Pages. 
 BUILDINGS, 
 
 duty of keeping in safe condition, 624, 627. 
 
 occupiers of, duty of, to passers-by, 633, 638. 
 
 falling into street, 635. 
 
 BURDEN OF PROOF. See Pkoof. 
 
 BUSINESS, 
 
 slander on, injunction to restrain, 224. 
 slander of a man in the way of his, 300 et seq. 
 words indirectly causing damage in, 303. 
 malicious interference with, 406. 
 
 BY-STANDEE, 
 
 plight of, when injured, 167, 204. 
 hearing slander, 312 (Ed. n.). 
 
 CAIRNS'S ACT (LORD), 520/. 
 
 CAMPBELL'S ACT (LORD), 6 & 7 Vict. c. 96. 
 
 as to pleading apology, etc., in action for defamation, 346. 
 
 CAMPBELL'S ACT (LORD), 9 & 10 Vict. c. 93. 
 
 what relatives may recover under, 77 t. ' 
 
 claim under, does not lie in Admiralty jurisdiction, 77 1. 
 
 construction of, 78. 
 
 what damages may be recovered under, 79. 
 
 cause of action under, not cumulative, 80. ' 
 
 CANAL, 
 
 escape of water from, 608. 
 
 CANDIDATE, 
 
 fair comment upon, 321 (Ed. n.). 
 
 CAPACITY, 
 
 personal, with respect to torts, 68 et seq. 
 
 CARRIAGE, 
 
 responsibilities of owner of, 629, 631, 642. 
 
 CARRIER, 
 
 common, interfering with passengers by guards, 104. 
 conversion by, 434 (Ed. n.). 
 duty of, 629, 650, 661. 
 
 CASE, 
 
 action on the, development of, 645. 
 
 CASTLE. See Dwelling. 
 
 CATERER, 
 
 assumption of skill by, 27 (Ed. n.). 
 
 48 
 
754 INDEX. 
 
 The References are to Pages. 
 
 CATTLE, 
 
 infecting pasture with, 370 (Ed. n.J. 
 conversion of, 413 (Ed. n.). 
 trespass by, 424, 610. 
 damage feasant, 473, 478. 
 liability for trespass by, 610. 
 bitten by dog, no scienter need be proved, 614. 
 right of owners of, to safe condition of marl^et-place, 631. See 
 Stock.' 
 
 CATTLE-YARD, 
 
 may be a nuisance, 505 (Ed. n.). 
 
 CAUSE, 
 
 immediate or proximate, 29, 30, 36, 37, 42. 
 
 reasonable and probable, for imprisonment, 267. 
 
 proximate", in law of negligence, 665, 673, 578. And see Proximate 
 
 Cause. 
 of action. See Action. 
 
 CAUTION, 
 
 consummate, required with dangerous instrument, 64. See Negli- 
 gence. 
 
 CAVEAT EMPTOR, 
 rule of, 376 (Ed. n.). 
 
 CEMETERY, 
 
 may be a nuisance, 602 (Ed. n.^. 
 
 CESSPOOLS, 
 
 may be a nuisance, 60£j (Ed. n.). 
 
 CHILDREN, 
 
 injury to, 47, 48. 
 
 may be corrected by parent, 149. 
 service of, 282. 
 
 degree of care towards, 664 (Ed. n.), 565. 
 
 when deprived of remedy by contributory negligence of parent, etc., 
 582. 
 
 CHURCH COUNCIL, 
 
 investigations by, when privileged, 146 (Ed. n.), 339 (Ed. n.J. 
 
 CIVIL PROCEEDINGS, 
 
 malicious bringing of, whether a tort, 397. 
 
 CLERGYMAN, 
 
 slander of, 301 (Ed. n.). 
 complaint to, regarding curate, 339. 
 
INDEX. 755 
 
 The References are to Pages. 
 
 CLERK, ^ 
 
 slander of, 300 (Ed. n.). 
 CLUB, 
 
 qaasi-judicial power of committee, 146. 
 
 cases on expulsion from, 147 s, t. 
 
 chance of being elected to, no subject of legal loss, 293. 
 
 COLLECTORS OF CUSTOMS, 
 
 exception of liability, 145 (Ed. n.). 
 
 COLLEGE, 
 
 quasi-judicial powers of, 146. 
 
 COLLISION, 
 
 between vehicles in street, 218 (Ed. n.), 549 (Ed. n.). 
 
 railroad trains, 548 (Ed. n.), 549. 
 
 ships, 588. 
 See Negugbncb, Railway. 
 
 COLONIAL GOVERNMENT, 
 
 liable for management of public harbour, 71. 
 
 COLONIAL LEGISLATURE, 
 
 control of, over its own members, 145 p. 
 
 COLONY, 
 
 governor of, liable in courts of colony for debt, 135. 
 
 COMMAND AND RATIFICATION, 87. And see Master and Servant. 
 
 COMITY, 
 
 rule of, as to suits affecting foreign sovereigns and states, 136. 
 
 COMMENT, 
 
 fair, not actionable, 31,7. 
 
 what is oped to, 320, 322. See Candidate, Musical Composition, 
 Writer. 
 
 COMMON, 
 
 no distress by commoners inter se, 472. 
 
 " COMMON EMPLOYMENT," 
 the doctrine of, 118. 
 what is, 119. 
 relative rank of servants immaterial, 121. 
 
 COMMON RIGHTS, 
 
 immunity in exercise of, 174. 
 
 COMMONER, 
 
 any one can sue for injury, 508. 
 
 may pull down house on common after notice, 514. 
 
 may pull down fence without notice, 515. 
 
756 INDEX. 
 
 , The References are to Pages. 
 
 • COMMUNICATION, 
 
 what is privileged, 331, 335, 340. See Immunity, Privilbge. 
 
 COMPANY, 
 
 fraud of directors, 113. 
 
 remedy of shareholder against, for fraud, 113. 
 
 removal of directoi?, 147 s. 
 
 false statements in prospectus of, 359, 374. 
 
 representations in prospectus of, 379. 
 
 malicious proceedings to wind up, 400. 
 
 COMPENSATION, 
 
 statutory, fdr damage done by authorize^ works, 155. 
 
 COMPETENCE, 
 
 what is, and vrhen required, 27 (Ed. n.), 542. 
 
 COMPETITION, 
 
 in business or trade, no wrong, 174-177. 
 
 as to malice in connection with, where acts lawful, 1822 z, a. 
 
 combination in trade to exclusion of, may not be wrong, 405. 
 
 CONCEALMENT, 
 
 when illegal, 368-370. 
 
 CONFIDENTIAL INQUIRIES, 
 
 privileged, 337. See Mercantile AcfENClES, Relatives. 
 
 CONSENT, 
 
 effect of, in justifying force, 185, 186, 190, 253 (Ed. n) , 254. 
 when a bar to action for seduction, 279 (Ed. n.). 
 
 CONSEQUENCES, 
 liability for, 29. 
 
 near or remote, 30-35, 41, 54. See Intention. 
 '■ natural and probable," 32, 85, 303, 304. 
 liability of wilful wrong-doer for, 33, 52. 
 natural in kind though not in circumstance, 54. 
 supposed limitation of liability to "legal and natural," 670. See 
 Cause. 
 
 CONSPIRACY, 
 
 Corporations liable for, 67 (fad. n.), 403. 
 whether a substantive wrong, 401. 
 
 how far trade combination to exclusion of other traders is a, 403, 
 409 (Ed. n.). 
 
 CONSTABLE, 
 
 must produce warrant, 142, 143. 
 
 is liable for mistake of fact, 142 (Ed.n.), 143. 
 
INDEX. ,757 
 
 The References are to Pages. 
 
 CONSTABLE — Continued. 
 
 statutory protection of, 143, 245. 
 protection of, by statute of limitation, 245. 
 powers of, to arrest on suspicion, 262. 
 protection of, in cases of forcible entry, 471, 472. 
 
 CONSTRUCTIVE SERVICE. See Servicb. 
 
 "CONSUMMATE CARE," 
 
 cannot always avoid accident, 160. 
 requirement of, 167. 
 
 CONTAGIOUS DISEASE, 
 imputation of, 299. 
 
 CONTEMPT OF COURT, 
 
 corporations liable for, 67 (Ed. n.). 
 
 CONTINUITY, 
 
 necessary to constitute nuisance, 494. 
 
 CONTRACT, 
 
 actions of, as opposed to tort, 2, S, 16. 
 
 violation of duty arising out of, 29 (Ed, n.). 
 
 right of action upon, not extended by changing form, 60. 
 
 law of, complicated with that of tort in province of deceit, 349. 
 
 malicious interference with, 409, 673. 
 
 effect of, on title to property, 350, 414. 
 
 overlaps with tort in law of negligence, 534. 
 
 effect of, on negligence, 548. 
 
 relations of, to tort, 644 et seq. 
 
 negligence in performing, how far a tort, 649, 653. 
 
 breach of duty founded on, 652. 
 
 rights arising from, not affected by suing incase, 654. 
 
 where action of tort lies notwithstanding existence of doubt as to,6fi6. 
 
 implied in law, as alternative of tort, 658. 
 
 ■with one party, compatible with actionable breach of duty in same 
 
 matter by another, 660. 
 breach of, whether third party can sue for an act which is, 663. 
 with servant, effect of, on master's rights, 663. 
 stranger to, cannot sue for damage consequential on mere breach 
 
 of, 666. 
 breach of, concurring with delict in Roman law, 667. 
 causing breach of, under what conditions a tort, 668. 
 existence or non-existence of, as affecting position of third parties, 
 
 680. 
 measure of damages in, as compared with tort, 682. 
 to marry, exceptional features of, 684, 686 (Ed. n.). See Dbcbit. 
 
758 INDEX. 
 
 The References are to Pages. 
 CONTRA CTOE, 
 
 when not a servant, 92 (Ed. n.). 
 
 independent, responsibility of occupier for acts and defaults of, 265. 
 duties extending to acts of 630 /, 637 (Ed. n.), 639. See Indepbn- 
 DBNT Contractor. 
 
 CONTRIBUTION, 
 
 between wrong-doers, 231. 
 
 CONTRIBUTORY NEGLIGENCE, 
 
 not punishable as a positive wrong, 207. 
 
 plaintiff is not bound to negative, 548. 
 
 what it is, 566. 
 
 proper direction to jury, 567 (Ed. n.), 569, 570. 
 
 rule of, founded in public utility, 570. 
 
 true ground of " proximate " or " decisive " cause, 573, 577-580. 
 
 self-created disability to avoid consequences of another's negligence, 
 
 675. 
 intoxication Is not, 575 (Ed. n.). 
 illustrations, 676. 
 as to damages in cases of, 578. 
 of third persons, effect of, 579, 580, 671. 
 negligent acts simultaneous or successive, 579. 
 doctrine of "identification" now not law, 580, 587. 
 accidents to children in custody of adult or unattended, 582, 583, 
 
 (Ed. n.), 58*. 
 unknown in Admiralty jurisdiction, 688. 
 separation of law and fact in the United States, 595. And see 
 
 Negligence. ' 
 
 CONTROL, 
 
 assumption of, 94, 96. See Master and Servant. 
 
 CONVERSION, 
 anomaly of, 13. 
 
 corporations liable for, 67 (Ed. n.). 
 right to follow property, 81. 
 exemplary damages recoverable in, 220 (Ed. n.). 
 what is, 419, 420 (Ed. n.), 432, et seq. 
 distinguished from injury to reversionary Interest, 433. 
 meaning of, extended, 433, 434 (Ed. u.). 
 by bank, 434 (Ed. n.). 
 
 carrier, 434 (Ed. n.). 
 acts in good faith may be, 435, 439 (Ed. n.) . 
 refusal as evidence, 436. 
 
 mere claim of title or collateral breach of contract is not, 437. 
 qu. as to dealings under apparent authority, 439. 
 
INDEX. 75(9 
 
 The References are to Pages. 
 CONVERSION — Continued. 
 by auctioneer, 439 (Ed. n.). 
 
 agent or servant, 441, 443 (Ed. n.). 
 
 baileeSj 442. 
 
 distinction between varieties of, and cases of injury witliout 
 
 conversion, 446. 
 estoppel, 446. 
 ot chattels by co-tenant, 448, (Ed. n.)- See Trespass, Tkovek. 
 
 CONVICT. 
 
 cannot sue, 69, 60 (Ed. n.). 
 
 COPYRIGHT, 
 
 injunction to restrain infringement of, 224 (Ed. u.). 
 
 principle of slander of title extending to, 390. See Trade Marks. 
 
 CORPORAL PUNISHMENT, 149. See Children, Husband and 
 Wife, LtWATic, Ship. 
 
 CORPORATION, 
 
 liability of, for wrongs, 66. 
 
 assault and battery, 67 (Ed. n.). 
 
 conspiracy, 67 (Ed. n.). 
 
 contempt of court, 67 (Ed. n.). 
 
 conversion, 67 (Ed. n.). 
 
 deceit, 67 (Ed. n.). 
 
 false imprisonment, 68 (Ed. n.) . 
 
 malicious prosecution, 68 (Ed. n.), 397. 
 liable for trespass, 68 t. 
 
 responsibility for performance of public duties, 69. 
 may be liable for fraud, etc., of its agents, 112 p. 113, 386. 
 cannot commit maintenance, semble, 411. 
 may be liable for a nuisance, 530 (Ed. n.) . See Prospectus, Stocks. 
 
 COSTS, 
 
 relation of, to damages, 213 I. 
 
 present procedure as to, 216 I. 
 
 presumed to be indemnity to successful defendant, 397-399. 
 
 COUNSEL, 
 
 advice of, no excuse for false imprisonment, 263 (Ed. n.). 
 immunity of words spoken by, 328 (Ed. n.), 329 (Ed. n.), 330. 
 advice of, excuse for malicious prosecution, 395 (Ed. n.). See 
 Attorney. 
 
 COUNTY COUNCIL, 
 
 licensing sessions of, 330. 
 
 COUNTY COURT, 
 
 statutory distinction of actions in, 654. 
 
760 INDEX. 
 
 The References are to Pages. 
 
 COUNTY COURT JUDGE, 
 powers of, 136. 
 
 COURSE OF EMPLOYMENT, 
 
 what is in, 97. See Master and Servant. 
 
 COURT, 
 
 privilege of statements made, 330. 
 
 control of, over jury, 345. 
 
 judicial notice by, 551. See Immunity, Judicial Proceedings. 
 
 COURT AND JURY, 
 
 functions of, in cases of negligence, 543, 544. 
 
 usual and proper direction as to. contributory negligence, 566 et seq. 
 
 COURT-MARTIAL, 
 
 protection of members of, 140- 
 
 whether action lies for bringing one before, without probable 
 cause, 144. 
 
 CREDIT, 
 
 intention to not pay for goods bought on, 369 (Ed. n.). 
 recommendation of, 381 (Ed. n.) . 
 
 CRIME, 
 
 oral imputation of, when actionable, 294. 
 
 CRIMINAL CONVERSATION, 
 former action of, 273. 
 
 CRIMINAL LAW, 
 
 attempted personal offences, 34 m. 
 
 what is immediate cause of death in, 42. 
 
 individuals bound to enforce, 141, 237 j-. 
 
 forfeiture of deodand, 162. 
 
 as to self-defence, 201. 
 
 conversion necessary for larceny, 432. 
 
 distinction of receiving from theft in, 454. 
 
 as to asportation, 470. 
 
 prosecution for public nuisance, 484 et seq. 
 
 CRITICISM, 
 
 limits of allowable, 317, 320. See Comment, Reports. 
 
 CROSSINGS, 
 
 over railway, 198 (Ed. n.), 653. 
 
 CROWD, 
 
 injuries by, 39, 40. 
 
 CULPA, ^ 
 
 defined, 18. 
 
INDEX. 761 
 
 The References are to Pages. 
 
 CULPA — Continued. 
 
 equivalence of culpa lata to dolus, 373, 539, 540. 
 licensor not liable to gratuitous licensee for, 640. 
 
 CUSTODY, 
 
 distinguished from possession, 416, 417. 
 
 CUSTOM, 
 
 loss of, no right of action for, 176, 177, 181. 
 
 CUSTOM OF THE REALM, 
 meaning of, 652, 654. 
 
 CUSTOMER, 
 
 right of, to safe condition of buildings, etc., 591 (Ed. n), 626, 627. 
 
 DAMAGE, 
 
 relation of, to wrongful act, 20, 21, 
 
 for " nervous or mental shock," whether too remote, 54. 
 
 from authorized acts, 152, 154, 157 (Ed. n.). 
 
 unavoidable, no action for, 155. 
 
 effect of, as regards limitation, 244. 
 
 special, in law of slander, what, 290. 
 
 special, involves definite temporal loss, 292. 
 
 actual, unnecessary to constitute trespass, 421. 
 
 particular, in action for public nuisaace, 487, 488. 
 
 not when private right Infringed, 499. 
 
 irreparable, injunction will restrain, 520. 
 
 special, procuring breach of contract actionable only with, 669. 
 
 remoteness of, 35, 41 et seq., 670. 
 
 DAMAGE FEASANT, 473, 478. 
 
 DAMAGES, 
 
 measure of, 31, 211. 
 
 for nervous or mental shock, 54. 
 
 measure of, where death results, 81 (Ed. n.), 82 (Ed. n.). 
 
 excessive award of, will be set aside, 211 (Ed. n.) 212. 
 
 nominal, ordinary, or exemplary, 212, 213 (Ed. n.). 
 
 carrying costs, 213 I, 214 m, 215 n. 
 
 nominal, as test of absolute right, 214. 
 
 when damage gist of action, 215. 
 
 ordinary, measure of, 217. 
 
 In cases of personal injury, 218 (Ed. n.). 
 
 for special value of property injured, 218 (Ed. n.). 
 
 exemplary, 219, 220 (Ed. n.). 
 
 for false imprisonment, 220. 
 
 mitigated, 222. 
 
 only once given for same cause of action, 223. 
 
762 INDEX. 
 
 The References are to Pa^es. 
 DAMAGES — Continued. 
 
 injanctiou, distinguished, 224. 
 for false cepresentation, 227. 
 
 measure of, in action for inducing plaintiff by false statements to 
 take shares in company, 227 s. 
 < in actions for seduction, 276. 
 
 mitigation of, by apology. In action for slander or libel, 3i6. 
 in action for trover, 437. 
 relation of costs to , 480. 
 for nuisance, 512, 518. 
 to what date assessed, 520. 
 in cases of contributorynegligence, 578, 579. 
 measure of, in contract and tort, 682. 
 
 for breach of promise of marriage, 222, 685. See Exemplary Dam- 
 ages, Juky; Mitigation of Damages. 
 
 DAMNUM SINE INJURIA, 22, 175. 
 
 DANGER, 
 
 going to, 190. 
 
 imminent, duty of person repelling, 201. 
 position of, one knowing, 206. 
 diligence proportioned to, 563. 
 concealed, to bare licensee, 639, 640. 
 licensor, liable for, 640. 
 
 DANGEROUS THINGS, 
 
 strict responsibility In dealing with, 29, 169, 170, 598, GOl, 613, 
 618, 622. See Instrument, Dangerous. 
 
 DEATH, 
 
 of party, effect of, on rights of action, 55, 274 (Ed. n.). 
 
 of human being, said to be never cause of action at common law, 72. 
 
 effect on license, 464 (Ed. ji.). See Action. 
 
 DEBT, 
 
 right of retaining, 210. 
 
 DECEIT, 
 
 corporation liable for, 67 (Ed. n,), 
 
 action of; damage must be shown, 216. 
 
 may give innocent agent claim for indemnity, 232, /. 
 
 what, 348. 
 
 complication with contract, 349. 
 
 sale, 349, 367 (Ed. n.), 368 (Ed. n.), 370 (E.l. n.) 
 fraudulent intent in, 353. 
 conditions of right to sue for, 355. 
 no cause of action without both fraud and actual damage, 355. 
 
INDEX. 763 
 
 The Keferences are to Pages. 
 DECEIT — Continued. 
 
 mast include knowledge of untruth or culpable ignorance, 355. 
 
 falsehood in fact, 356. 
 mere opinion, not, 357 (Ed. n.). 
 in relations of confidence, 358 (Ed.n.), 361 (Ed . n.). 
 may include misstatement of law, 360. 
 by garbling, 362. 
 
 statement believed by maker at the time is not, 362. 
 ground of belief looked to as test of its reality, 362. 
 American law as to, 364. 
 
 effect of subsequent discovery of untruth, 365. 
 reckless assertion, 367, 
 breach of special duty, 368. 
 intention as element of, 872. 
 by public representations, 373. 
 
 as regards prospectus of new company, 374. And see Prospectus. 
 statement not relied on is not, 375. 
 rule of caveat emptor, 376 (Ed. n.). 
 mere fraudulent intention, not, 377. 
 effect of plaintiff's means of knowledge, 377. 
 
 perfunctory inquiry, 379. 
 as to reliance on ambiguous statements, 880. 
 effect of misrepresentation by or through agent, 383. 
 by agent of corporation, 386. 
 action of, against falsifier of telegram, 674 et seq. See Fraud, Mis- 
 
 KBPRBSENTATION. 
 
 DEFAMATION, 
 
 damages in action of, 215. 
 
 special damage, 217, 290, 292. 
 
 of female's reputation, 292 (Ed. n.'). 
 
 gross, damages for, 221. 
 
 in general, 286, 304. 
 
 spiritual, 298 t. 
 
 of one in his business, 300-304. 
 
 in what sense "malicious," 305. 
 
 " publication " of , 306. 
 
 construction of words as to defamatory meaning, 311. 
 
 by repetition, 315. 
 
 exception of fair comment, 317. 
 
 justified by truth of matter, 823. 
 
 immunity of speech in Parliament, 327. 
 
 in meetings of county council, 330. 
 
 words used by judges and others in judicial proceedings, 329. 
 
 naval and military, judicial or official proceedings, 329 (Ed. n.), 
 331. 
 
 privileged communications generally, 331 . 
 
764 INDEX. 
 
 The Keferences are to Pages. 
 
 DEFAMATION — Continued. 
 
 exception of " express malice," 333. 
 
 what are privileged occasions, 335. 
 
 privilege of fair reports, 340. 
 
 newspaper reports of public meetings, 342. See Immunity, In- 
 junction, Libel, Liberty of the Press, Memorials, Petitions, 
 Reports, Slander. 
 
 DEFECT, 
 
 latent, non-responsibility for, 631. 
 
 in structure, responsibility of occupier for, 633-637. 
 
 DEFENCE. See Dwelling, Family, SELF-DBrENCE, Self-Help. 
 
 DELICTS. 
 
 Roman law of, 17-19. 
 
 terminology of, Austin on, 19 s. 
 
 DEPARTMENTS, 
 
 whether servants in different, are fellow-servants, 124 (Ed. n.). 
 
 DETENTION. See False Imprisonment, Imprisonment, Possession. 
 
 DETINUE, 14, 16. 
 
 nature of writ of, 420 (Ed. n.), 426. 
 
 DIGEST, 
 
 of Justinian, ctd legem, Aquiliam, 17. And see Lex Aquilia. 
 
 DILIGENCE, 
 
 liability even when utmost used, 11-13. 
 
 amount of, required by law, 25, 26. See Duty. 
 
 general standard of, 532, 640. 
 
 includes competent skill where required, 539, 542, 550. 
 
 due, varies as apparent risk, 663. 
 
 DISABILITY, 
 
 suspending statute of limitation, 243. 
 
 DISCRETION, 
 
 where given by legislature must be exercised with regard to other 
 rights, 157. 
 
 DISEASED BEASTS, 
 
 may be a nuisance, 503 (Ed. n.). 
 
 DISTRESS, 
 
 in general, 472. 
 
 damage feasant, 473, 478. 
 
 conditions of, 474, 475. 
 for rent, 472, 478 n 
 liability for, 479. 
 
INDEX. 765 
 
 The References are to Fages^ 
 
 DISTRESS — Gontinued. 
 
 excess in distress damage feasant, effect of, 480. 
 
 DOCKS, 
 
 owner of, answerable for safety of appliances, 628. 
 
 DOG, 
 
 may be killed, when, 616 (Ed. n.) . 
 
 whether owner liable for mere trespass of, 612. 
 
 liability for vice of, 614.' 
 
 statutory protection against, 614 (Ed. n.;, G15 t. 
 
 DOGS, 
 
 separation of fighting, resulting in accident, 166. 
 
 DOG-SPEAES, 
 
 authorities on injuries by, 203 a. 
 
 DOLUS, 18, 71, 348. 
 
 DOMINUS PRO TEMPORE, 95. 
 
 DRIVER, ■ 
 
 relation of, to passengers, 94. 
 
 course of employment of, 100 (Ed. n.). 
 
 duty of, 198. 
 
 DRIVERS, 
 
 negligence of both, 580. 
 
 DRUNKEN MAN, 
 
 liable for tort, 59 (Ed. n.;. 
 authorized restraint of, 151. 
 
 may be excluded by innkeeper, 651 (Ed. n). See Costtributoby 
 Negugbncb. 
 
 DUEL, 
 
 always unlawful, 188. 
 
 DUTIES, 
 
 absolute, imposed by policy of law, 7, 19. 
 relation of legal to moral, 9, 12. 
 to one's neighbor, expanded in law of torts, 12. 
 of Insuring safety, 698 et seq. 
 
 DUTY, 
 
 absolute, 20, 85. 
 
 limited, 20. 
 
 of diligence, 20, 25. 
 
 to one's neighbor, nowhere broadly stated, 23. 
 
 specific legal acts In breach of, 24. 
 
 of respecting property, 25. 
 
766 INDEX. 
 
 The Keferences are to Pages. 
 
 DUTY — Continued. 
 
 arising out of contract, 29 (Ed. n.) . 
 
 of warning, knowledge of risk opposed to, 192. 
 
 statutory, remedy lor breach of, 228. 
 
 to give correct information, 368. 
 
 of caution, 533. And see Negligbn-ce. 
 
 omission of legal, 534 (Ed. n.). 
 
 standard of, does not vary with individuals, 540. 
 
 towards passers-by, 633. 
 
 breach of, in course of employment, action for, 649. 
 
 DWELLING, 
 
 defence of, 267 (Ed. n.). 
 
 EASEMENT, 
 
 disturbance of, analogous to trespass, 456. 
 license cannot confer, 457, 463. 
 of light, 608, 509. 
 
 EDITOR. 
 
 admitting publication, not bound to disclose actual author, 311. See 
 Journalist. 
 
 ELECTION, 
 
 liability of officers holding, 148, 149. 
 to sue in contract or tort for misfeasance, 647. 
 
 doctrine of, seems not applicable when duties are distinct in sub- 
 stance, 666. 
 
 ELEVATOE, 
 
 injury by, 550 (Ed. n.). 
 
 EMBEZZLEMENT, 
 
 when not consequence of collusion, 44 (Ed. n.). 
 
 EMERGENCY, 
 
 skill not required in action under, 27 (Ed. n.) See Necessity. 
 
 EMPLOYE, 
 
 assumes risk of employment, 192-195. See Servant. 
 
 EMPLOYEE, 
 
 when answerable as master, 90 et seq. 
 
 not liable for negligence of bis contractor, 687 (Ed. u.). See Inde- 
 pendent Contractor, Mastek and Servant. 
 
 EMPLOYER'S LIABILITY ACT, 
 
 as regards " volenti nonfit injuria," 195. 
 
 EMPLOYMENT, 
 
 what is course of, 97. See Master and Servant. 
 public, of carriers and innkeepers, 650. 
 
INDEX. 767 
 
 The ReferenceB are to Pages. 
 ENGINEER, ^ 
 
 assumption of skill by, 27 CEd. n.). 
 ENTRY, 
 
 by relation, 465. 
 when justified, 465 etseq. 
 fresh, on trespasser, 468. 
 to take distress, 474. 
 of necessity, 475. 
 
 EQUITY, 
 
 remedies formerly peculiar to, 209. 
 
 former concurrent JT^isdictlon of, in cases of deceit, 224. See 
 
 Injunction. 
 protects executed licenses, 462 (Ed. n.). 
 
 ERROR, 
 
 clerical, responsibility for, 303, 679. 
 
 ESTOPPEL, 
 
 if no contract or breach of specific duty, statements to be made good 
 
 only on ground of fraud or, 371. 
 conversion by, 446. 
 
 EVIDENCE, 
 
 of malice, 345. 
 
 of conversion, 436. 
 
 of negligence, 589, 543, 560, 595. 
 
 question whether there is any for court: inference from admitted 
 
 evidence for jury, 551. 
 of contributory negligence, 571. 
 
 EXCAVATIONS, 
 
 by municipalities, 70 (Ed. n.) . 
 neighbors, 216. 
 
 EXCEPTIONS TO LIABILITY, 130 et seq. See Acts of State, Author- 
 ties OF Necessity, Authorized Works, Executive Acts, Judicial 
 Acts, Parent, Quasi-Judiciai. Acts. 
 
 EXOEoo, 
 
 master liable for servant's, 103. 
 
 EX CONTRACTU, 
 
 effect of death of party on actions of, 71, 74. 
 
 EX DELICTO, 
 
 Roman system compared, 17, 18, 19. 
 
 effect of death of party on actions of, 71, 73. 
 
 EXECUTION, 
 
 of process, justification of trespass in, 471. See rRocEss. 
 specific orders, 98. 
 
768 INDEX. 
 
 The References are to Pages. 
 
 EXECUTIVE ACTS, 
 
 immunity oJ, 133 (Ed. n.), 1*1. 
 
 EXECUTORS, 
 
 cannot be sued for testator's torts, 71 et seq. 
 
 statutory rights of action by, for wrongs to testator's property, 75, 
 
 76. 
 liability of, for wrongs of testator, 76. 
 
 to restore property or its value, 83. 
 whether not bound to prosecute for felony before bringing civil 
 
 action, 236. 
 cannot sue for personal injuries to testator, even on a contract, 686. 
 
 EXEMPLARY DAMAGES, 
 
 when recoverable, 219, 220 (Ed. n.). 
 
 in seduction cases, 281 (Ed. n.) See Damages. 
 
 EXPLOSIVES, 
 
 liability for Improper dealing with, 164, 166, 615 (Ed. n.), 619. 
 may be a nuisance, 503 (Ed. n.). 
 liability for sending without notice, 619. 
 
 EXPRESS MALICE. See Maucb, Malice in Fact. 
 
 FACTORS ACTS, 
 
 validity of dealings under, 415. 
 good title acquired under, 681. 
 
 FACULTIES, 
 
 ordinary use of, presumed, 564. 
 
 FAIR COMMENT, 
 
 jastiflable, 317. See Commbnt. 
 
 FALSEHOOD. See Deceit, Fraud, Misrepresentation. 
 
 FALSE IMPRISONMENT, 
 
 corporation liable for, 68 (Ed. n.). 
 
 what is, 259-262. 
 
 prosecutor or officer answerable for, 264. 
 
 distinguished from malicious prosecution, 265 (Ed. n.), 266. 
 
 reasonable and jJrobable cause, 267. See Counsel, Imprisonment. 
 
 FAMILY, 
 
 relations, 214, 269. 
 
 defence of, 257 (Ed n.). See Husband and Wipe, Parent. 
 
 FELLOW- SERVANTS, 
 
 may recover for other's negligence, 84 (Ed. n.). 
 master not liable for injury by, 115, 116. 
 servants need not be about same kind of work, 118, 119. . 
 rank of servants immaterial, 121. 
 
INDEX. 769 
 
 The References are to Pages. 
 
 FELLOW- SEEVANTS — Continued. 
 
 employed in different departments, 124 (Ed. n.). 
 servants of sub -contractor not, with servants of principal con- 
 tractor, 12S. 
 volunteer assistant becomes, 126. 
 
 exception where master interferes, 127. See Master and Ser- 
 vant. 
 
 FELONY, 
 
 " merger" of trespass in, 233, 236; 
 arrest for, justification of, 262, 263. 
 
 imputation of, when libellous, 294, 299, 326. 
 
 « 
 
 FENCE, 
 
 when.trespass for defective, 473. 
 falling in neighbour's land, 604. 
 duty to maintain, 610. 
 
 FERRY, 
 
 refusal to carry passengers by, 437. 
 franchise of, 457 r. ' 
 
 nuisance to, 517. 
 
 FINE, 
 
 in trespass under old law, 3. 
 
 FIRE, 
 
 causing horse to run away, 37 (Ed. n.). 
 
 escape of, from raUway engines, 43 (Ed. n.), 560, 561 (Ed. n.). 617. 
 
 when proximate cause of injury, 43 (Ed. n.), 51 (Ed. n.). 
 
 master is not liable for servant's, 107 (Ed. n.). 
 negligence as to, 539. 
 safe-keeping of, 616. 
 responsibility for carrying, 617. 
 
 FIRE-ARMS, 
 
 accidents w.ith, 167. 
 
 may be a nuisance, 503 (Ed. n.). 
 
 consummate caution required in dealing with, 615, 618. 
 
 FIRM, 
 
 co-partners liable for other's fraud, 114. 
 
 FOOTMAN, 
 
 must use care in crossing street, 197 (Ed. ii.), 198. 
 
 FORCIBLE ENTRY, 
 
 statutes against, 465, 466. (Ed. n.). 
 with good title, whether civilly wrongful, 468. 
 
 49 
 
770 INDEX. 
 
 The References are to Pages. 
 FOREIGN LANGUAGE, 
 
 publication of defamation in, 307 CEd. n.)i 308 (Ed. n.), 312 (Ed. n.). 
 
 FOREIGN POWERS, 
 
 exception of acts of, 136. 
 
 FORNICATION, 
 
 imputation of, may be slanderous under statute, 298 (Ed. n.). 
 
 FOX-HUNTING, 
 
 trespass in, not justtfled, 177. 
 
 FRANCE (law of), 
 
 Consell d'Etat inquiries into " acts of state," 137. 
 rule of, of five years' prescription, 241. 
 
 FRANCHISE, 
 
 malicious interference with exercise of, 410. 
 
 FRAUD, 
 
 pf infant, 63. 
 
 of agent or servant, 112. 
 
 of partners, 114, 384 (Ed. n.). 
 
 compensation for, in equity, formerly by way of restitution, 227. 
 
 concealed, effect of, on period of limitation, 245. 
 
 remedies for, 277. 
 
 in sales, 349-357, 368 (Ed. n.), 370 (Ed. n.) . 
 insurance, 352 (Ed. n.). 
 
 Intent, 353. See Intention. 
 
 equitable jurisdiction founded on, 353, 354. 
 
 " constructive,", 354. 
 ' "legal," 354. 
 
 of agents, 355. 
 
 by suppressing truth, 362, 368, 369 (Ed. n.). 
 
 relation of, to infringement of trade-marks, etc.', 391. 
 .effect of, on transfer of property or possession, 414, 415. See 
 Bank Check, Deceit, Misbepkesentation, Pasture. 
 FROST, 
 
 damage brought about by extraordinary, 60. 
 
 GAS, 
 
 escape of, 620. 
 
 GAS WELL, 
 
 owner may explode, 178 (Ed. n.). 
 
 GAS WORKS, 
 
 may be a nuisance, 505 (Ed. n.) . 
 
 GERMANIC LAW, 
 of torts, 22. 
 
 self-help, 210. 
 
INDEX. 771 
 
 „^_ The References are to Pages. 
 
 GOD, 
 
 exception of act of, 605. 
 GOOD-FAITH, 
 
 no excuse for unlawful act, 9 (Ed. n.), 10, 434 (Ed. n), 537 (Ed. n.). 
 See Deceit, Fraud. 
 
 GOOD-WILL, 
 
 protection of privileges analogous to, 391. 
 
 GOVERNOR, 
 
 colonial, actions against, 135. 
 
 GRADING, 
 
 by municipalities, 70 fEd. n.) 
 
 GRANT, 
 
 distinguished from license, 459. 
 
 but may be inseparably connected with license, 460. 
 
 distinction of licence from, as regards strangers, 464. 
 
 GUARANTY, 
 
 misrepresentations amounting to, 3S0, 381. 
 
 GUEST, 
 
 gratuitous, is mere licensee in law, 641, 642 (Ed. n.). See Inn- 
 keeper. 
 
 GUNPOWDER. See Explosives. 
 
 HARBOR, 
 
 public management of, 71. 
 
 HIGHWAY, 
 
 defective or obstructed, when not cause of injury, 44 (Ed. n.), 577. 
 justification for deviating from, 475. 
 nuisances by obstruction of, 488, 489, 490, 494. 
 cattle straying off, 612. 
 traction or steam engine on, 617. 
 
 rights of persons using, to safe condition of adjacent property, 633, 
 636, 637. 
 
 HORSE, 
 
 injuries caused by, 49, 
 conversion of, 443 (Ed. n,). 
 trespass by, 611, 612. 
 
 HOST. See Guest. 
 
 HUMANE SOCIETY, 
 authority of, 474. 
 
 HUNTING, 
 
 not privileged, 477. See Ed. n. 
 
772 INDEX. 
 
 The References are to Pages. 
 
 HUSBAND AND WIFE, 
 
 action by and against, 63. See Action. 
 
 action of personal tort between, does not lie, 65 (Ed. n.), 66. 
 
 hnsband may not now beat wife, 150 a (Ed. n.). 
 
 action for taking or enticing away wife, 244, 269, 270, 271 (Ed. n.). 
 
 husband, 272, (Ed. n.). 
 
 assault or crim. con., 273. 
 
 loss of consortium between. Is special damage, 293. 
 libel on husband by letter to wife, 309. 
 
 " INDENTIFICATION," 
 
 exploded doctrine of, in cases of negligence, 580, 68B. 
 
 IMMEDIATE CAUSE. See Catjsb, Peoximatb . Cause. 
 
 IMMUNITY. See Chukch Council, Counsel, Court, Judgbs, Judi- 
 cial Acts, Judicial Procehdings, Lbgislatuke, Military Officer, 
 Naval Officer, Parliament, Parties, Pleadings, Privilege, 
 Tax-Assessors, Witness. 
 
 IMPEACHMENT, 
 
 proper remedy for wrongs by judges, 138 (Ed. n.). 
 
 IMPLIED MALICE, 
 
 in defamation, 305. See Malice. 
 
 IMPRISONMENT, 
 ' does not affect period of limitation, 243 p. 
 
 IMPRISONMENT, FALSE, 
 damages for, 220. 
 
 justified by local act of indemnity, 238. 
 definition of, 259-263. 
 who is answerable for, 264. 
 on mistaken charge, followed by remand, 267. 
 what is reasonable cause for, 267. See Counsel, False Impris- 
 onment. 
 
 INCOHPOEEAL RIGHTS, 
 
 of property, violation of, 466. See Easement, License. 
 
 INDEMNITY, 
 
 claim to, of agent who has acted in good faith, 232. 
 colonial Act of, 238. ^ 
 
 IMPRUDENCE, 
 wrongs of, 11. 
 
 "INDEPENDENT CONTRACTOR," 87. See Ed. n. 91 (Ed. n.), 93, 94, 
 (Ed. n.), 266. 
 
INDEX. 773 
 
 The References are to Pages. 
 INDIA, BRITISH, 
 
 dealings of East India Company with native States, 133, 134. 
 protection ol executive and judicial officers in, 143 I, 144. 
 
 INDIAN NATIONS, 
 
 relation of, to United States, 133 (Sd. n). 
 
 INFANT, 
 
 cannot be made liable on contract by changing form of action, 60. 
 
 liability of, for torts, 60. 
 
 liable for substantive wrong though occasioned by contract, 61. 
 
 cannot take advantage of his own fraud, 63. 
 
 whether liability limited to wrongs contra pacem, 66. 
 
 not made liable on contract by suing in form of tort, 653. 
 
 INFIRM PERSON, 
 
 greater care in dealing with, 564 (Ed. n.), 565. 
 
 INFLAMMABLE SUBSTANCES, 
 may be a nuisance, 503 (Ed. n.). 
 
 INFORMATION, 
 
 duty to give correct, 868. 
 
 INJUNCTION, 
 
 jurisdiction to grant, 224. 
 to restrain waste, 225 (Ed.n.), 430 (Ed. n.). 
 continuing trespass, 225 (Ed. n.)).482. 
 interlocutory, 226, 227 s, 523 i. 
 to restrain defamation, 347. 
 to restrain nuisance, 512, 520. 
 mandatory, 522 i. 
 
 on what principles granted, 226, 523. 
 
 not refused on ground of difficulty of removing nuisance, 526. 
 under C. L. P. Acts, 209 6. 
 
 See Copyrights, Libel, Light, Patent Rights, Trade-Marks, 
 Tkbspass, Water. 
 
 INNKEEPER, 
 
 selling goods of guest, 444 k. 
 cannot dispute entry ol guest, 478. 
 duty of, 650, 651 (Ed. n.). See Guest. 
 
 INNS OF COURT, 
 
 quasi-judicial powers of, 145. 
 
 INNUENDO, 
 
 when defamatory, 265 (Ed. n.). 
 
 meaning and necessity of, 311, 313 (Ed. n.). 
 
774 INDEX. 
 
 The References are to Pages. 
 
 INSTRUMENT, DANGEROUS, 
 
 responsibility of person using, 53, 599, 623. See Dangerous Things. 
 
 INSURANCE, 
 
 duty in nature of, 20, 603. ^ 
 
 construction of policy of, excepting obvious risk, 197. 
 effect of, on necessity of salvage work, 200 s. 
 fraud in, 352 (Ed. u.). 
 
 INTENTION, 
 
 not material in trespass, 9, 13. 
 
 general relation of, to liability, 32, 33, 372. 
 
 inference or presumption of, 35. 
 
 wben fraudulent, 353, 364, 372. See Deceit, Motive. 
 
 INTIMIDATION, 
 
 of servants and tenants, 283. 
 
 when " picketing " becomes, 284 g. See False Impi;isonment. 
 
 INTOXICATION. See Drunken Man. 
 
 INVITATION, 
 
 rights of persons coming on another's property by, 625 sqq. 
 
 " INVITATION TO ALIGHT," 
 cases, 553, 558 (Ed. n.), 559. 
 
 IRELAND, 
 
 Lord-Lieutenant exempt from actions In, for official acts, 135. 
 
 JOINT WRONG-DOERS, 
 
 may be sued jointly or severally, 230, 231. 
 
 JOURNALIST, 
 
 liability of, 309, 310 (Ed. n.). See Editor. 
 
 JUDGE, 
 
 , protection of. In exercise of office, 138. 
 of inferior court must show jurisdiction, 139. 
 not liable for latent want of jurisdiction, 139. 
 allegation of malice will not support action against, 140. 
 must grant habeas corpus even in vacation, 140. 
 could not refuse to seal bill of exceptions, 14(1. 
 immunity of, 327. 
 See Impeachment, Judicial Acts, Judicial Proceedings. 
 
 JUDGMENT, 
 
 against one of several wrong-doers, effect of, 231. 
 in trover, 435 (Ed. n.) 
 
 JUDICIAL ACTS, 
 
 immunity of, 138, 827. 
 
INDEX. 775 
 
 The Befereuces are to Pages. 
 JUDICIAL ACTS — Continued. 
 
 of persons not judges, immunity for, 140. 
 distinguished from ministerial, 148, 263, 264. 
 protection of, 327. See Election, Quasi -Judicial Acts. 
 
 JUDICIAL PEOCEEDINGS, 
 immunity of, 328 (Ed. n.). 
 reports of, 328 (Ed. n.), 340, 342 (Ed. n.). 
 
 JUDICIAL REMEDIES. See Rembdibs. 
 
 JUDICUM RUSTICUM, 588. 
 
 JURISDICTION, 
 
 acts in excess of, 138 (Ed. n.), 139. 
 to grant injunctions, 224. 
 local limits of, 288. 
 
 JURORS, 
 
 immunity of, 145 (Ed. n.). 
 
 JURY, 
 
 duty of, to determine malice in defamation, 834 (Ed. n.). 
 power of, to assess damages, 345. 
 question of negligence for, when, 551, 552 (Ed. n.). 
 duty of, to determine fraudulent intent, 353 (Ed. n.) . See Court^ 
 AND Jury, Damages, Verdict. 
 
 JUS TERTI 
 
 cannoi justify trespass or conversion, 450. 
 
 JUSTICE OF THE PEACE, 
 
 limitation of actions against, 245. 
 memorial as to conduct of, 339 o. 
 
 JUSTIFICATION AND EXCUSE, 
 general grounds of, 130 et'seq. 
 of arrest and imprisonment, 262. 
 
 of defamatory statement by truth, 823. And see Truth. 
 by license, 457. 
 by authority of law, 465. 
 for re-entry on laud, 466, 468. 
 for retaking goods, 469, 
 under legal process, 471. 
 for tailing distress, 472. 
 determination of, 480. See Privilege. 
 
 LABOR ORGANIZATION. See Trades Union. 
 
 LABOURERS, STATUTE OF, 
 action under, 276, 283. 
 
• 776 INDEX. 
 
 The References are to Pages. 
 
 LAND, 
 
 acts done in natural user of, not wrongful, 177. 
 artificial works on, 129 x. 
 assertions as to quality of, 357 CEd. n.) . 
 
 acceptance as estoppel, 371 (Ed. n.). See Lattkral Suppokt, 
 TiMBEB, Waste. 
 
 LANDLORD AND TENANT, 
 
 questions of waste between, 431. 
 
 which liable for nnisauces, 628. See Buildings, Tenants. 
 
 LANDOWNERS, 
 
 adjacent, duties, 216, 492 (Ed. n.;, 634. 
 entitled to resume possession, 449, 452. 
 duty of, as to escape of dangerous or noxious things, 601, 604. 
 
 LARCENY, 
 
 when trespass becomes, 470. 
 
 LATTERAL SUPPORT, 
 
 property owner entitled to, 216, 492 (Ed. n.). 
 
 LAW, 
 
 misrepresentation of, 360. 
 
 LEAVE AND LICENS]S, 
 defence of, 185 et seq. 
 as justification for assault, 252, 253 (Ed. n.;. And see License, 
 
 LEGISLATORS, 
 
 immunity of, 327 (Ed. n.). 
 
 LEoSEE, 
 
 for years holding over, no trespasser, 478. 
 
 LETTER, 
 
 publication of defamation by, 307 (Ed. n.), 308, 309. 
 LEVY, 
 
 ofiScer liable for mistake In making, 142 (Ed. n.), 143. 
 
 LEX AQUILLi, 
 
 rules of liability under, compared with English law, 163 o. 
 digest on, compared with English law, 224 1. 
 Roman law of j liability under, 641 (, 668 e. 
 
 LEX FORI, 
 
 regard to, in American courts, 81 (Ed. n.), 82 (Ed. n.). 
 
 English courts, 237, 238, 239 (Ed. n.). 
 See Action, Remedies. 
 
 LIBEL, 
 
 damages for trespass on plaintiff's paper, where no libel for want of 
 publication, 221. 
 
INDEX. 777 
 
 The References are to Pages. 
 LIBEL — Continued. 
 
 injunction to restrain publication of, 224, 347. 
 
 defined, 286. 
 
 slander distinguished from, 286, 287 (Ed. n.). 
 
 what is prima facie libellous, 290. 
 
 what is publication, 306. 
 
 by letter, 307 (Ed. n.), 808, 309. 
 
 in foreign language, 307 (Ed. n.), 308 (Ed. n.), 312 (Ed. n.). 
 
 assignee of newspaper liable for, 310 (Ed. n.). 
 
 advertisement as, 310 (Ed. n.). 
 
 construction of, 311. 
 
 fair comment is not, 317. 
 
 Law of Libel Amendment Acts, 1888, 343. 
 
 And see Defamation, Siander. 
 
 LIBERTT OF THE PRESS, 318 (Ed. n.). 
 
 LICENSE, 
 
 to apply bodily force, 186, 253 (Ed. n.), 254. 
 
 to do bodily harm, good only with just cause, 186. 
 
 obtained by fraud, void, 190. 
 
 what,. 457, 458 (Ed. n.). 
 
 revocable unless coupled with interest, 459. 
 
 may be annexed by law to grant, 459 (Ed. n.), 460. 
 
 revocation of executed, having permanent results, 461. 
 
 how given or revoked, 463, 464. 
 
 Interest by way of equitable estoppel arising from, 463. 
 
 not assignable, 464. 
 
 does not confer rights in rem, 464, 465. See Consent. 
 
 LICENSEE, 
 
 liable for infecting pasture, 370 (Ed. n.). 
 rights of, in use of way, 635. 
 what risks he must take, 639. 
 
 LICENSOR, 
 
 liable for ordinary negligence, 642. 
 
 LIEN, 
 
 distinguished from conversion, 444. 
 
 LIGHT, 
 
 obstruction of, 608, 509 (Ed. n.). 
 
 nature of the right to, 508. 
 
 what amounts to disturbance of, 610, 5H. 
 
 the supposed rule as to angle of 45°, 611. , 
 
 efEect of altering or enlarging windows, 511, 512. 
 
 LIGHTS, 
 
 management of, by muncipalities, 70 (Ed. n.). 
 
778 INDEX. 
 
 The References are to Pages. 
 
 LIMITATION, 
 
 statute of, S8, 342. 
 effect of foreign law of, 240. 
 exception of concealed fraud, 245. 
 wliere damage gist of action, 244. 
 
 LIVERY STABLES, 
 
 may be a nuisance, 505 (Ed. n.). 
 
 LOCAL ACTION, 
 
 distinguished from transitory, 239. 
 
 LOCAL LAW, 
 
 acts justified by, 237, 238. 
 
 LUNATIC, 
 
 liability of, for torts, 59 (Ed. n.). 
 authorized restraint of, 150. 
 
 MAINTENANCE, 
 actions for, 411. 
 
 MALA PROHIBITA, 
 
 no longer different in result from mala in se, 2S. 
 
 MALICE, 
 
 need not be shown where there is wantonness, 39, 40 (Ed. n.). 
 
 cases on, in connection with competition in business, 182 a, z. 
 
 ambiguity of the word", 182 e. 
 
 effect of, in exercise of common right, 182. 
 
 not ingredient of assault with dangerous weapon, 251 (Ed. n.). 
 
 " implied," meaning of, in defamation, 305. 
 
 express, in communication on privileged occasions, 331 (Ed. n.), 333. 
 
 evidence of, 333, 334, 345. 
 
 essential in slander of title, 389. 
 
 procuring breach of contract actionable only with, 670. 
 
 See Assault, False Imprisonmbnt, Malicious PROSBCnTiow. 
 
 "MALICE IN FACT," 69, 333, 345. 
 
 MALICIOUS CIVIL PROCEEDINGS, 397. 
 
 MALICIOUS HINDRANCE, 
 by combination in trade, 405. 
 
 MALICIOUS INJURIES, 
 
 by interference with la^wful occupation, etc., 406. 
 contract, 409. 
 franchise, 410. 
 
 MALICIOUS PROSECUTION, 
 
 corporation liable for, 68 (Ed. n.), 397. 
 
INDEX. 779 
 
 The References are to Pages. 
 
 MALICIOUS PROSECUTION — Continued. 
 
 distinguished from false imprisonment, 265 (Ed. n.), 266. 
 action of, 392. 
 malice In, 393 (Ed. n.) . 
 want of probable cause, 393 (Ed. n.). 
 termination of former action, 394 (Ed. n.). 
 
 action for, for prosecuting action in name of third person, 401. See 
 Process. 
 
 MANDAMUS, 209 6. 
 
 MARKET, 
 
 franchise of, 457 r. • 
 nuisance to, 512. 
 
 MARKET OVERT, 
 
 not recognized in America, 414 (Ed. n.). 
 title acquired in, 415, 681. 
 
 MARKET PLACE, 
 
 duty of person controlling structures in, 630. 
 
 MARRIAGE, 
 
 breach of promise of, 71, 222, 682, 685, 686. 
 
 MARRIED "WOMAN, 
 
 damages and costs recovered against, how payable, 63, 64. 
 can now sue and be sued alone, 64. 
 
 whether liability at common law limited to wrongs contra pacem, 
 66. See Husband and Wife. 
 
 MARRIED WOMEN'S PROPERTY ACT, 
 effect of, 4. 
 right of action under, how limited, 65. 
 
 MASTER. See Master and Servant, Ship. 
 
 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, 74. 
 liability of master for acts and defaults of servants, 84 et seq. 
 command and ratification, 87. 
 rule as to liability of master, 88. 
 
 reason of, 89. 
 temporary transfer of service, 96. 
 execution of specific orders, 98. 
 deviation from master's orders, 100. 
 liability of master for servant's excessive acts, 103 (Ed. n.), 104. 
 
 mistakes, 103, 590 (Ed. n.). 
 
780 INDEX. 
 
 The References are to Pages. 
 
 MASTER AND SERVANT — Continued. 
 
 making arrest, 106. 
 
 acts outside of authority, 107. 
 
 wilful wrongs, 109, 110 (Ed. n.). 
 
 ■disobedient acts, 110 (Ed. n.). ' 
 
 fraud, 112. 
 
 forgery, 112 q. 
 injuries to servant by fellow-servant, 115, 116. See Fkllow- 
 
 Sbrvants. 
 master must furnish suitable materials, 124. 
 
 choose proper servants, 125. 
 
 provide safe place to work, 125 (Ed. n.). 
 defence of servant by master, 201 x. 
 action for enticing away, 270. 
 
 beating servant, 271 (Ed. n.), 272, 2S3. 
 services of child, 282. 
 doctrine of constructive service, 283. 
 menacing servants, 283, 284 (Ed. n.). 
 master giving character, 335, 386 (Ed. n.). 
 warning by master to fellow-servants privileged, 337. 
 as passengers by railway, 657. 
 whether master can sue for loss of service by a breach of contract 
 
 with servant, 663. 
 See Appkentice, Seduction, Servant,, Service. 
 
 MAXIMS, 
 
 honeste vivere, 12. 
 alteram non laedere, 12 (Ed. n.), 13. 
 suum cuique tribuere, 12 (Ed. n.), 13. 
 damnum sine injuria, 23, 156 (Ed. n.), 176. 
 imperitla culpae adnumeratur, 28. 
 in jure non remota causa sed proxima spectatur, 30. 
 a man is presumed to Intend the natural consequences of his actsi 35. 
 actio personalis moritur cum persona, 71. 
 qui f acit per alium faclt per se, 89. 
 respondeat superior, 89. 
 
 sic utere tno ut alienum non laedas, 131, 153, 698 (Ed. n.) . 
 ^ nuUus videtur dole facere qui suo jure ntitur, 153 c. 
 animus vicino nocendi, 183. 
 volenti non fit injuria, 185, 190, 195, 197, 632. 
 culpa lata dolo aequiparatur, 354. ^ 
 
 vigilantibus non dbrmientibus jura subvenlent, 376 (Ed. n.). 
 adversus extraneos vitiosa possessio prodess solet, 451. 
 res ipsa loquitur, 636, 636 (Ed. n.). 
 
 MEASURE OF DAMAGES. See Damages. 
 
INDEX. 781 
 
 MEATS ^^^ References are to Pages. 
 
 sale of, 370 (Ed. n.). 
 MEDICAL EDUCATION, 
 
 general council of, powers of, over registered medical practitioner. 
 146. 
 
 MEETING, 
 
 public, newspaper reports of, 342. 
 MEMORIALS, 
 
 when privileged, 338 (Ed. n.). 
 
 MENACE, , 
 
 wlien actionable, 258^ 
 to servant, 288. 
 
 MENTAL OR NERVOUS SHOCK, 
 
 damages for, whether too remote, 54-57. 
 
 MERCANTILE AGENCIES, 
 
 how far privileged, 335 (Ed. n.) . 
 
 MILITARY COMPANT, 
 
 injury by, to spectator, 167. 
 
 MILITARY COURT, 
 privilege of, 331. 
 
 MILITARY OFFICER, 
 
 privilege of, 143, 145 (Ed. n.), 329 (Ed. n.), 331. . 
 
 MINES, 
 
 may be opened, when, 431. 
 
 MINISTER, 
 
 of Baptist chapel, removal of, 147 t. 
 
 MINISTERIAL ACTS, 
 
 distinguished from judicial, 148. 
 
 MISFEASANCE, 
 
 common law doctrine of, 647. 
 defined, 648 (Ed. n.). 
 
 MISREPRESENTATION, 
 
 in insurance, 352 (Ed. n.). 
 
 of fact or law, 360. 
 
 by omission, 362. 
 
 knowledge or belief of defendant, 362. 
 
 by reckless assertion, 367. 
 
 by breach of special duty of disclosure, qu. whether deceit, 368. 
 
 not deceit, in the absence of fraud or positive duty to disclose, 37-1. 
 
 reliance of plaintiff on defendant, 375. 
 
782 INDEX. 
 
 The References are to Pages. 
 
 MISREPRESENTATION — Continued. 
 
 construction of ambiguous statement, 380. 
 
 amounting to promise or guaranty, 356, 380, 381. 
 
 intention to harm by the, not necessary condition of liability, 372. 
 
 by or through agent, 383. See Deceit, Fraud. 
 
 MISTAKE, 
 
 does not excuse interference with property, 9 (Ed. n.), 10. 
 master liable for servant's, 103. 
 of prosecutor, 267. 
 
 sheriff, in taking goods, 142 (Ed. n.), 143, 471. See Arrest. 
 
 MITIGATION OF DAMAGES, 
 rule of, 223, 223 (Ed. n.). 
 effect of violent words, 253 (Ed. n.). 
 
 advice of counsel, 263 (Ed. n.). 
 
 negligence, 279. 
 
 current reports, 315. 
 
 partial justification, 325 (Ed. n.). 
 
 disproof of malice, 334 (Ed. n.). 
 
 apology, 346. 
 
 MODES OF ANNOYANCE. See Bells, Blasting, Boilikg Establish- 
 ments, Cattle Yard, Cemetery, Cesspools, Diseased Beasts, Ex- 
 plosives, Gas Wokks, Inflammable Substances, Fire, Fire -Arms, 
 Livery Stables, Noises, Offensive Odors, Slaughter-Houses, 
 Smoke, Tanneries, Tree, Vapors. 
 
 MORTGAGOR, 
 
 may be guilty of conversion, 445. 
 
 forcible entry of, upon mortgagee in possession, 465, 466. 
 
 MORAL BLAME, 4 (Ed. n.), 9 (Ed. n.), 10, 11, G80. 
 
 MOTIVE, 
 
 malicious, not cause of action, 33. 
 
 whether material in exercise of rights, 183. 
 
 considered in aggravation or reduction of damages, 222, 223. 
 
 whpn material part of cause of action, 671, 672. See Intention. 
 
 MUNICIPAL corporation) 
 
 acts of, 69 (Ed. n.). See Corporation. 
 
 musical COIJIPOSITION, 
 
 fair comment upon, 320 (Ed. n.), 322. 
 
 NAME, 
 
 no exclusive right to use of, 184. 
 
 of house, no exclusive right to, 391, 392. 
 
INDEX. 783 
 
 The References are to Pages. 
 
 NATURAL JUSTICE, 
 
 must be observed in exercise of quasi-judicial powers, 146. 
 " NATURAL USER," 
 
 of property, non-liability for, 602. 
 
 NAVAL 0F:FICER, 
 
 privilege of, 143, 146, 329 (Ed. n.), 331. 
 
 NAVIGATION, 
 
 negligence in, 48, 588. 
 
 requirements o'f, as limiting statutory powers, 156. 
 
 NECESSITY, 
 
 as excuse for unskilled person, 28. 
 
 as justiflcation generally, 199. 
 
 "compulsive," 204, 205. 
 
 destruction of property justified by, 200. 
 
 trespasses justified by, 475. See- Trbspass. 
 
 nuisance not justified by, 499. 
 
 NEGLIGENCE, 
 liability for, 11. 
 equivalent to culpa, 18. 
 
 liability for, depends on probability of consequence, 42-46. 
 in conduct of master's business, 98. 
 accident Is not, 160, 164. 
 contributory, 170 *.' 
 
 question of, excluded when a risk is voluntarily taken, 190. 
 knowledge of risk opposed to duty of warning, 192 et seq. 
 aggravated by recklessness, 221. ^ 
 
 as ground of action against servant for conversion, 442 a. 
 general notion of, 632. 
 
 concurrence of liability ex contractu and ex delicto, 534 et seq. 
 defined, 537. 
 grades of, 538 (Ed. n.). 
 failure in average prudence is, 540. 
 sex is no excuse for, 540 (Ed. n.). 
 evidence of, 543, 560. 
 burden of proof on plaintiff, 545, 548, S68. 
 how affected by contract, 648. 
 when presumed, 560, 651. 
 duties of judge and jury, 661 (Ed. n.), 554. And see Contributory 
 
 Negligence. 
 principles illustrated by railway cases, 553. And see Railway. 
 due care varies as apparent risk, 563. 
 notice of special danger through personal infirmity, 565. 
 of independent persons may be joint wrong, 582, 
 
784 INDEX. 
 
 The References are to Pages. 
 
 NEGLIGENCE — Continued. 
 
 as to action under difficulty caused by another's negligence, 589. 
 
 one is not bound to anticipate anotber's, 591. 
 
 choice of risks caused by another's, 592. 
 
 presumption of, in cases of unexplained accident, 635, 635 (Ed. n.). 
 
 liability of licensor for, 642. 
 
 liability for, concurrent with another party's liability on contract, 
 
 . 660. 
 general doctrine of, not applicable to statements, 677. See Air Gttn, 
 
 Collision, Crossings, Fibe, Invitation to' Alight, Kailway, 
 
 Risk, Ship. 
 
 NERVOUS SHOCK. See Mental ok Nervous Shock. 
 
 NEWSPAPER, 
 
 proprietor of, responsible for every thing published, 309. 
 vendor of, not liable for libel, 309. 
 assignee of, liable for libel, 31ft (Ed. n.). 
 volunteered reports to, 342. 
 Law of Libel Amendment Act, 1888, 343. 
 
 special procedure in action for libel, 346. See Editor, Journalist, 
 Liberty of the Press, Reports. 
 
 NEW TRIAL, 
 
 for excessive or inadequate damages, 213. And see Court and 
 Jury. 
 
 NOISES, * 
 
 railroad liable for, when, 154 (Ed. n.), 495 (Ed. n.). 
 
 may be a nuisance, 495 (Ed. n.), 504 (Ed. n.), 505. See Bells. 
 
 NOTICE, 
 
 licence may be ended without, 463. 
 
 of nuisance, 514, 515 (Ed. n.) . 
 
 effect of, on liabiliiy for negligence, 539, 540. 
 
 judicial, of common facts, 551. 
 
 of special risks, 563, 565. 
 
 of special circumstances, as affecting measure of damages, 682. 
 
 NUISANCE, 
 
 when justified by statutory authority, 157-160. 
 public or private, 484, 486 (Ed. n.), 491. 
 defined, 484 (Ed; n.). 
 particular damage from public, 487. 
 
 private, 488. 
 private, what, 491. 
 affecting ownership, 492. And see Tree. 
 
 easements, 494. 
 
 comfort and enjoyment, 494. 
 
INDEX. 785 
 
 The Beferences are to Pages. 
 
 NUISANCE — Continued. 
 
 what amount of injury amounts to, 496. 
 
 doctrine of " coming to nuisance " abrogated, 497. 
 
 acts in themselves useful and in convenient places may be, 499, 501. 
 
 miscellaneous forms of, 502 et seq. 
 
 by use of property for unusual purpose, 607. 
 
 by injury common to many persons, 508. 
 
 by independent acts of different persons, 608. 
 
 by obstruction of light, 508, 509 (Ed. n.). And see Light. 
 
 to market or ferry, 512. 
 
 remedies for, 512. 
 
 abatement of, 513, 626, 527 (Ed. n.). 
 
 notice before abatement, when required, 514, 515 (Ed. h.). 
 
 dnties of person abating, 515. 
 
 old writs, 517, 518 (Ed. n.). 
 
 damages, 518. 
 
 injunction, 520. And see Injunction. 
 
 parties entitled to sue for, 527, 528. ^ 
 
 liable for, 529. 
 liabilities of lessor and lessee for, 580 (Ed. n.'), 531. 
 when vendor or purchaser liable, 531. 
 whether a single accident can be, 603 i. 
 
 OBLIGATION, 
 
 ex delicto in Boman law, 17. / 
 
 quasi ex delicto, 18. 
 and ownership, 668. 
 
 OCCUPATION, 
 
 malicious interference with, 406. 
 
 OFFENSIVE ODORS, 
 
 may be a nuisance, 503, 504 (Ed. n.). 
 
 OFFICE, 
 
 judicial or ministerial, 148. 
 
 OFFICERS, 
 
 public, acts of, 141. 
 excess of authority by, 142. 
 naval and military, acts of, 143. 
 subordinate, to what extent protected, 144. 
 commanding, liability of, for accident, 167. 
 liable for breach-of duty to individual, 214 (Ed. n.). 
 liability of, for malicious misconduct, 411. See Election, Mili- 
 tary Oi'i'iCBK, Navai Officer, Public.Officbr. 
 
 OMISSION, 
 
 of legal duty, liability for, 11, 20, 24. 
 
 60 
 
786 INDEX. 
 
 The References are to Pages. 
 OPINION, 
 
 expression of, not deceit, 357 (Ed. n.). 
 
 ORDERS, 
 
 execution of specific, 98. See Master and Servant. 
 
 OUSTER, 
 
 of one co-tenant by anottier, 147. 
 
 OWNERSHIP, 
 
 relation of duty, 624, 643, 668. 
 
 PAMPHLETS. , 
 
 distributing of, publishes their contents, 307 CEd. n.). 
 
 PARENT, 
 
 authority of, 149 et seq. See Children, Stbp-Father. 
 
 PARLIAMENT, 
 
 disciplinary orders of House of Commons not examinable, 144, 145. 
 may give a governing body absolute powers, 145. 
 position of presiding and returning officers at election for, 148. 
 protection of words spoken in, 327. 
 
 proceedings of Committee, 330. 
 
 publication of papers and proceedings, 340. 
 lair reports of debates in, 341. 
 
 PARTIES, 
 
 privilege of, in court, 228 (Ed. n.), 330. 
 
 PARTNER, 
 
 liability of, for co-partner's fraud, 114, 384 (Ed. u.). 
 
 to servant of firm, 127. 
 expulsion of, 147 , 
 
 PASSENGER, 
 
 rights of person accepted as, 104, 657, 661. 
 
 may be arrested to prevent mutiny, 152. See Crossings, Invita- 
 tion TO Alight, Railway. , 
 
 PASSERS-BY, 
 
 duty towards, 633. 
 
 PASTURE, 
 
 licensee of, liable for infecting, 370 (Ed. n.). 
 waste of, 430 (Ed. n.), 
 
 PATENT RIGHTS, 
 
 injunction restrainlBg infringement of, 225 (Ed. n.). 
 principle of slander of title extended to, 389. 
 relation of, to possession, 457. See Trade-Marks. 
 
INDEX. 787 
 
 The Beferences are to Pases. 
 PERCOLATION, 
 
 underground, no cause of action for, 177, et seq. 
 PERSON, . 
 
 wrongs to the, 7. See Assault, 
 
 PERSONALTY. See Property. 
 
 PERSONS AFFECTED BY TORTS, 58. See Alien Enemy, Convict, 
 Drunken Man, Infant, Lunatic, Married Woman. 
 
 PERSONAL ESTATE, 
 
 damaged by personal- injury, no cause of action, 76. 
 
 PERSONAL STATUS, 
 Immaterial, 58. 
 
 PETITIONS, 
 
 wlien privileged, 338. 
 
 PHYSICIANS AND SURGEONS, 
 
 assumption of skill by, 27 (Ed. n.). 
 slander of, 301 (Ed. n.), 303. 
 
 "PICKETING," 284 ff. 
 
 PIGS, 
 
 may be cattle by statute, 587 m, 615 v. 
 average obstinacy of, 587 re. 
 
 PLAINTIFF, 
 
 a wrong-doer, may stUl recover, 205. 
 
 PLEADINGS, 
 
 privUege of, 328 (Ed. n.). 
 
 PLEDGEE, 
 
 abuse of authority by, when conversion, 443. 
 
 POISON, 
 
 responsibility of persons dealing with, 615 (Ed. u.), 621. See 
 Apothecary. 
 
 POLICEMAN, 
 
 has power of common law constable, 264. 
 
 POSSESSION, 
 
 wrongs to, 412 et seq, 
 
 more regarded than ownership In the early law, 416. 
 
 right to, commonly called property, 418. 
 
 distinguished from custody, 418 h. 
 
 relation of trespass to, 419. 
 
 constructive, 419 k. 
 
 right to immediate, plaintiff in trover must have, 432. 
 
788 INDEX. 
 
 The References are to Pages. 
 
 POSSESSION — Continued. 
 
 without title, protected against strangers, 4*9. 
 why protected by law, 4-52. 
 derivative, 453. 
 
 of receiver or taker from trespasser, 454. 
 restitution of, after forcible entry, 466. 
 taken by trespass, when complete, 468. 
 owner not in, how far liable, 643. 
 
 obtaining of, by trick, 680. See Conversion, Reversion, 
 Trespass. 
 
 PO^T-CAED, 
 
 sending defamatory matter on, 344. 
 
 POUND, 
 
 feeding animals in, 475, 476. 
 
 PRECEPTS, 
 
 of Justinian, 12. 
 
 PREMATURE DELIVERY, 
 
 resulting from shock, 30 (Ed. n.), 55 fEd. n.). 
 
 PRESCRIPTION ACT, 
 
 effect of, on right to light, 509 (Ed. n.), 510. 
 
 PRINCIPAL AND AGENT, 
 
 when principal must indemnify agent, 232. 
 liability of principal for fraud of agent, 383. 
 where principal is a corporation, 386. 
 reason of liability, 387. 
 
 liability of agent misrepresenting principal's authority, 659. See 
 Agent, 
 
 PRINTING OF LIBEL, 
 
 prima facie a publication, 308 k. 
 
 PRISON, 
 
 what is, 259. 
 
 PRIVATE DEFENCE. See Self-Dbfence. 
 
 PRIVILEGE, 
 
 " absolute," in law of defamation, 330. 
 
 judicial and parliamentary, in law of defamation, 331. 
 
 "qualified," 331, 340. 
 
 conditions of, 332. 
 
 privileged occasions and excess, 335, 344. 
 
 of communications in interest of society or in self-protection, 
 
 336, 337. 
 of information for public good, 338. 
 
INDEX. 789 
 
 The References are to Pages. 
 
 PRIVILEGE — Continued. 
 
 fair reports, 339. See Fair Comment, Immunity, Mercantilb, 
 Agencies, Relatives. 
 
 PRIZE-FIGHT, 
 
 why unlawful, 186 (Ed. n.), 187-189. 
 presence at, 188. 
 
 PROBABLE CONSEQUENCE. See Consequence. 
 
 PROCESS, 
 
 abuse of, 392, 399 (Ed. n.). 
 service of, 471. 
 
 PROMISES, 
 
 efie.ct of, 356. 
 
 PROOF, 
 
 of negligence, 543, 545. 
 
 contributory negligence, 548, 568> 
 
 PROPERTY, 
 
 wrongs to, 7, 10, 13, 16, 25. 
 
 right to follow, when converted, 81. 
 
 duty to respect, 412. 
 
 of goods, commonly means right to possess, 418, 432. 
 
 transferred by satisfied^ judgment in trover, 437. 
 
 PROSECUTION, 
 
 whether necessary before offender can be civilly sued, 233 et seq. See 
 Conversion. 
 
 PROSPECTUS. 
 
 binds issuer, when, 83, 359, 374. 
 
 PROXIMATE CAUSE, 
 
 what, 29-32, 42-67, See Cause. 
 
 PUBLIC OFFICER, 
 
 slander of 301 (Ed. n.). See Officers. 
 
 PUBLIC WORKS, 
 
 management of, 69. See Excavations, Grading, Harbor, Lights, 
 Sewbks, Sidewalks, Street Grades and Grading, Streets 
 AND Sidewalks. 
 
 PUBLICATION, 
 
 ol libel, what, 306. 
 
 vicarious, 309. 
 
 by agent, 309. See Defamation, Foreign Language, Letters. 
 
 PUNITIVE DAMAGES. See Exemplary Damages. 
 
790 INDKX. 
 
 The Refereuces are to Pages. 
 
 PURCHASER, 
 
 innocent, may be liable for conversion, 438, 439. 
 
 QUASI- JUDICIAL ACTS, 145 et seq., 339 (Ed. n.). 
 
 RAILWAY, 
 
 statutes as to fences and appliances, 24 (Ed. n.) . 
 
 unguarded crossing, responsibility of company for, 24, 47. 
 
 remoteness of damage suffered on, 41, 49. 
 
 overcrowded carriage in, 50. 
 
 liability of company for mistaken acts of servants, 104. 
 
 not liable for acts of servants outside of authority, 107, 108 (Ed. n.). 
 
 liable under statutes for noise, smoke and vibration, 154 (Ed. n.^. 
 
 immunity or liability of company for damage in execution of under- 
 taking, 155, 156, 159. 
 
 effect of statement in company's time-tables, 373. See Tihe- 
 Tabi.es. 
 
 distraint of engine damage feasant, 473 s. 
 
 evidence of negligence in accidents on, 553. 
 
 level crossing cases, 553. 
 
 "invitation to alight " cases, 426, 553, 558 (Ed. n.), 559. 
 
 escape of sparks, 560, 561 (Ed. n.). 
 
 where train fails to stop, 695. 
 
 liability of company for damage by escape of sparks, 560, 561, 609, 
 617. 
 bi^aking down of embankment, 609. 
 
 duty of company as to safety of carriages and platforms, 631. 
 of structures, as regards passers-by, 634. 
 
 liabilities of company from assumption of duty, independent of 
 contract, 656, 662. 
 
 See Crossings, Collision, Contributory Negligence, Negli- 
 gence. 
 
 RATIFICATION, 
 
 by master, makes him responsible, 89, 110 (Ed. n.). 
 
 RATS, 
 
 damage by, 607 s. 
 
 REASONABLE CAUSE, 
 for imprisonment, 262. 
 
 RECAPTION, 
 
 of goods wrongfully taken, 469, 480. See Remedies. 
 
 RECKLESSNESS. See Wantonness. 
 
 RELATIVES, 
 
 communications between, when privileged, 335 (Ed. n.), 337. 
 
INDEX. 791 
 
 The References are to Pages. 
 REMEDIES. 
 
 at common law In general, 209. 
 
 self-help, 210. 
 
 judicial, 211. 
 
 damap;es, 211, 
 
 kinds of damages, 212. 
 
 measure of damages, 217. 
 
 injunctions, 224. 
 
 damages or compensation for deceit, 227. 
 
 for breach of statutory duty, 228. 
 
 for fraud, 227 et seq. 
 
 acta justified by l^w, 238, 239 (Ed. n.). 
 possessory, 416, 420. 
 distress damage feasant, 480. 
 for nuisance, 512. 
 alternative, on one cause of action, 647. See Action. 
 
 REMORSE, 
 
 damages for, not recoverable, 55 (Ed. n.). See Cossequenxes.. 
 
 REMOTENESS, 
 
 of consequence or damage, 35, 49. 
 
 RENT, 
 
 distress for, 472, 478 n. 
 
 REPETITION, 
 
 See Continuity, Defamation, Reports, Words. 
 
 REPLEVIN, 
 
 417, 420 (Ed. n.), 426. 
 
 REPORTS, 
 
 repetition of, may be libelous, 315. 
 of naval and military ofllcers, how far privileged, 331. 
 • confidential, to ofScial superiors, 335. 
 fair, of public proceedings, 342. 
 newspaper, of public meetings, 344. 
 
 REPRESENTATION, 
 
 compensation or damages for false, 227. 
 
 to a class of persons, 373. See Deceit, Misrepresentation. 
 
 RES JUDICATA, 231. 
 
 RETREAT, 
 
 no duty to, when assaulted, 256 (Ed. n.). 
 
 REVENGE, 
 
 unlawful, 257 (Ed. n.). 
 
792 INDEX. 
 
 The References are to Pages. 
 
 REVENUE OFFICERS, 
 
 protection of, in case of forcible entry, 471. 
 
 REVERSION, 
 
 injury to, measure of damages, 218, 426, 430 (Ed. n.). 
 
 REVOCATION, 
 
 of license, 459, 464. 
 
 RIGHT, 
 
 when violated, no damage need be shown, 9 (EcJ. n.), 10. 
 
 exercise of, not cause of action, 175 i, 176. 
 
 whether it can be made wrongful by malice in fact, 182. 
 
 assertion of, distinguished from self-defence, 201. 
 
 absolute, at least nominal damages recoverable for violation of, 211. 
 
 RISK, 
 
 voluntary taking of, 170 t, 172, 173, 190, 195, 632. See Voluntary 
 
 Taking of Risk. 
 due care varies with, 563. 
 notice of special, 565. 
 choice of, under stress of another's negligence, 592. See Consent, 
 
 EMYLOy£, License, Servant. 
 
 ROMAN LAW, 
 
 of obligations ex delicto, 8, 17. 
 
 the Twelve Tables, 20. 
 
 as to effect of death of party on rights of action, 71 et seq. 
 
 on the value of human life, 75 m. 
 
 noxal actions of, 162. 
 
 does not make a man liable for inevitable accidents, 163. 
 
 distinguishes right to personal security from that of property, 224. 
 
 animus vicino nocendi, 183. 
 
 of possession, 419, 451 a, 452 b. 
 
 legis actiones in, compared with common law forms of action, 645. 
 
 theory of culpa in, 648 /. 
 
 concurrent breach of contract with delict in, 667. 
 
 RUNNING-DOWN CASES, 171, 172, 223. 
 
 RYLANDS V. FLETCHER, 
 the rule in, 599 et seq. 
 
 SAFETY, 
 
 duties of insuring, 598 et seq. 
 persons entitled to, 627. 
 
 SALES. See Deceit, Fraud. 
 
 SCANDALUM MAGNATUM, 288 6. 
 
INDEX. 7^3 
 
 The References are to Pages. 
 SCHOOL COMMISSIONERS, 
 
 exception of liability of, 145 (Ed. n.). 
 
 SCHOOL TEACHER, 
 
 may reasonably punish pupil, 149 (Ed. n.). 
 SCIENTER, 
 
 doctrine of, as to damage by animals, 614. 
 
 SCOTLAND (law of), 
 
 as to trespass by parachute, 40 k. 
 
 gives compensation for damage by death, 77 s, 80. 
 
 theory of " common employment " forced upon, 118. 
 
 as to aemulatio Bicini,*183. 
 
 as to protection against dangerous animals, 615 «. / 
 
 SECRET SOCIETY. See Chhrch Council, Trade Union. 
 
 SEDUCTION, 
 
 action for, 276. 
 
 defined, 276 (Ed. n.). 
 
 what is service for this purpose, 276-280. 
 
 who may sue for, 277 (Ed. n.), 280. 
 
 consent to, may bar action, 279 (Ed. n.). 
 
 damages, 280, 281 (Ed. n.). 
 
 SELF-DEFENCE, 
 right of, 201. 
 
 assertion of disputed right distinguished from, 203. 
 injuries to third person resulting from, 35, 210. 
 against wrongful assault, 255. 
 |n defamation, 337. See Assault, Battery, Defence 
 
 SELF-HELP, 210. And see Abatement, Distress, Recaption. 
 
 SELF-PROTECTION, 
 
 communication in, privileged, 337. 
 
 SEPARATE PROPERTY, 
 
 costs and damages payable out of, 63, 64. 
 
 trespasser on, 65. 
 
 whether husband can be indemnified from, 65. 
 
 SERVANT, 
 
 liability of master for acts of, 84. 
 
 who is, 90. 
 
 may change master pro tempore, 95. 
 
 what is course of service, 97. 
 
 negligence of, in conduct of master's business, 98. 
 
 execution of specific orders, 98. 
 
 departure from master's business, 100. 
 
794 INDEX. 
 
 The References are to Pages. 
 
 SERVANT — Continued. 
 
 mistake or excess of authority by, 103. 
 
 interference with passengers by, 104. 
 
 arrest of supposed offender by, 106. 
 
 acts of, outside his authority, 107. 
 
 wilful wrongs of, for master's purposes, 109. 
 
 fraud of, 112. 
 
 injuries to, by fellow-servant, 116 et seq. 
 
 injury to, where master interferes in person, 127. 
 
 enticing away of, 270. 
 
 master may sue for injury to, 271 (Ed. n.), 275. 
 
 detention or haboring of, 276 (Ed. n.). 
 
 intimidation of, 283, 284 (Ed. n.) . 
 
 custody of possession of, 418, ft. 
 
 conversion by, in master's interest, not excusable, 436. 
 
 but qu. as to acts done under master's possession and apparent 
 
 ownership, 439. 
 conversion by, 441. See Master and Servant. 
 
 SERVICE, 
 
 temporary transfer of, 95. 
 
 loss of, ground of action, 271 (Ed. n.). 
 
 proved or presumed in action for seduction, 276 et seq. 
 
 of young child, 282. 
 
 constructive, 283. See Children, Seduction. 
 
 SEWERS, 
 
 management of, by municipalities, 70 (Ed. n.) . 
 
 SEX, 
 
 no excuse for negligence, 540 (Ed. n.). * 
 
 SHERIFF, 
 
 immunity or liability of, 143. 
 
 power and duty of, to break doors, etc., in execution of process, 471 . 
 
 remaining nndnly long in possession, 479, 
 
 SHIP, 
 
 owner of, liable for officers' torts, 96. 
 
 master's authority to use force, 151 . 
 
 right of shipowner to refuse services of particular tag, 180, 181. 
 
 owner's liability, how affected by neglect of statutory regulations, 
 
 229, 230. 
 master may complain of nuisance near by, 486. 
 contributory negligence of, 571 , 588. 
 rule of Admiralty as to division of damage, 588. 
 duty of owner as to safety of cargo, 629. 
 liability of owner as carrier, 655 t. 
 
INDEX. 795 
 
 oTinroT^ "^^^ References are to Pages. 
 
 must mark dangerous goods, 164. 
 SHOOTING, 
 
 UabiUty for accident in, 168 et seq. See Military Compaky. 
 SKILL, 
 
 requirement of, in particular undertakings, 26, 27, 542, 550. See 
 Assumption of Skill. 
 
 SLANDER, 
 
 injunction to restrain, 224. 
 
 defined, 286. 
 
 libel distinguished, 286, 287 (Ed. n.). 
 
 when actionable, 289. 
 
 special damage, 290. 
 
 temporal loss necessary to special damage, 292. 
 
 repetition of, 292. 
 
 imputation of crime, 294. 
 
 by allusion, 295 (Ed. n.). 
 
 interrogation, 295 (Ed. n.). 
 
 innuendo, 295 (Ed. n.). 
 imputation of impossible crime, 296 (Ed. n.). 
 
 fornication, 298 (Ed. n.). 
 
 contagious disease, 299. 
 disparagement in office or business, 300. 
 of title of invention, design, trade name, etc. See Slander of 
 
 Title. 
 indirect damage in business, 803. 
 of property used in business, 304 (Ed. u.). 
 Slander of Women Act, 1891, 298. 
 
 See Attorney, Clerk, Clergyman, Physician a>{d Surgeon, 
 Public Officer, Trader. 
 
 SLANDER OF TITLE, 177, 338. 
 
 relation of, to ordinary defamation, 388. 
 
 SLAUGHTER-HOUSES, 
 
 may be a nuisance, 506 (Ed. n.). 
 
 SMOKE, 
 
 railroad liable for, when, 154 (Ed. n.). 
 may be a nuisance, 506 (Ed. n.). 
 
 SOCIETY, 
 
 liable for violence in expulsion, 147 (Ed. n.). 
 for prevention of cruelty, 474. 
 
 SOVEREIGN, 
 
 foreign, cannot be sued in England for political acts, 136. 
 
796 INDEX. 
 
 The Eefercnees are to Pages. 
 
 SOVEREIGNTY, 
 
 acts of, how far examinable, 186. 
 
 SPECIAL DAMAGE, 
 
 involves definite temporal loss, 292. See Damage. 
 
 SPORT, 
 
 hurt received in lawful, 187, 188 o, 190, 255. 
 
 , SPRIUe-GUNS, 
 
 authorities on injuries by, 192 z, 206. 
 threat of, useless, 481. 
 
 SQUIB CASE. See 8coU v. Shepherd, Table of Cases. 
 
 STAIRCASE, 
 
 when not dangerous, 551, 563. 
 
 STAND, 
 
 safety of, guaranteed by contractor, 630. 
 
 STATE, 
 
 acts of, 132. See Acts of State. 
 
 cannot be sued in court of another State, 136 (Ed. n.). 
 
 STATUTE, 
 
 duties created by, breach of, 24, 25, 228. 
 
 authorizing suit for death, 77, 80, 81 (Ed. n.). 
 
 acts authorized by, 157. 
 
 caution required in exercise of powers conferred by, 157. 
 
 remedies under, 228. 
 
 STEP-FATHER, 
 
 may correct child, 149 (Ed. n.)^ 
 
 sue for seduction of step-daughter, 278 (Ed. d.). 
 STOCK, 
 
 damage by, 473. See Cattle. 
 
 STOCKS, 
 
 misrepresentation concerning, 359, 360 (Ed. d.), 378 (Ed. n.), 386. 
 See Corporation, Pkospectus. 
 
 STOWAGE, 
 
 ship liable for improper, 629 (Ed. n.). 
 
 STRANGER, 
 
 right of de facto possessor against, 449. 
 cannot acquire right of licensee, 464. 
 exception of act of, 607. 
 has no cause of action on breach of contract, 673. 
 
 STREAM. See Water. 
 
INDEX. 797 
 
 The References are to Pages. 
 STREET, 
 
 care in crossing, 197 (Ed. n.), 198. 
 
 STREET GRADES AND GRADING, 
 by municipalities, 70 (Ed. n.). 
 
 STREETS AND SIDEWALKS, 
 defective, 69 (Ed. n.). 
 
 SUICIDE, 
 
 when not immediate consequence of personal injury, 30 (Ed. u.). 
 
 SUNDAY, 
 
 statutes for observance of, in United States, 208. ' 
 
 SURGEON, 
 
 action against, for misfeasance, 647 d. See Physicians and Sur- 
 geons. 
 
 TANNERIES, 
 
 may be a nnisance, 506 (Ed. n.). 
 
 TAX-ASSESSORS, 
 
 exception of liability, 145 (Ed. n.). 
 
 TELEGRAPH, 
 
 delinquent delivery of message, 55 (Ed. n.), 674. ■ 
 sending defamatory matter by, 344. 
 
 conflict between English and American authorities as to rights of 
 receiver of message, 674, 675. ' 
 
 TENANTS, 
 
 intimidation of, 283, 284 A. 
 
 in common trespass between, 447. See Waste. 
 
 TENTERDEN'S ACT (LORD), 382. 
 qu. how far now operative, 383. 
 
 THIRD PERSON, 
 
 intervention of, no excuse for negligence, 63 r. 
 injuries resulting to, from self-defense, 34, 203, 204. 
 
 THIEF, 
 
 can convey no title to stolen goods, 439 (Ed. n.), 441. 
 
 THREATS, 
 
 justify use of force by officer, 263 (Ed. n.). 
 by notice boards to trespassers, 481. 
 
 TIMBER, 
 
 cutting of, when trespass, 412 (Ed. n.). 
 waste by cutting, 429 (Ed. n.), 430. 
 when licence to cut. Is implied, 460. 
 
798 INDEX. 
 
 Tlie References are to Pages. 
 
 TIME-TABLE, 
 
 passenger entitled to rely upon, 374, 656 (Ed. n.). 
 
 TITLE. See Slander of Title. 
 
 TORT, 
 
 what is, 1, i, 19, 20. 
 
 action of (as opposed to contract), 2. 
 
 wrongs which are not, 3, 4. 
 
 former criminal character of action for, an exclusively common law 
 
 term, 3, 4. 
 principles of, 5. 
 generic division of, 6-8. 
 wilful, negligent, or involuntary, 8. 
 from ethical stand-point, 12. 
 generaLeharacters of, 19, 20. 
 law of, in three main heads, 23. 
 persons affected by, 58 et seq. 
 exceptions to liability for, 130. See Exceptions. 
 dependent on contract, 414. 
 , relations of, to contract, 644. 
 cases of, whether contract or no contract between same parties, 656. 
 waiver of, for purpose of suing in contract, 658. 
 cause of action in, co-existing with contract, 660. See Wrongs. 
 
 TRADE-MAEKS, 
 
 protection of, 184 (Ed. n.), 391. 
 
 by injunction, 225 (Ed. n.). See Copyright, Name, Patent 
 Eights. 
 
 TEADE UNION, 
 
 when unlawful, 409 (Ed. n.). 
 
 TRADER, 
 
 defamation of, 302 (Ed. n.). See Competition. 
 
 TRAMWAY, 
 
 nuisance by, 488. 
 
 . TRANSFER OF SERVICE, 95. 
 
 TRANSITORY ACTION, 
 
 distinguished from local, 239. 
 
 TRAP, 
 
 dangers in nature of, 635, 640, 641. 
 set by railway company, 662. 
 
 TRAVELLER, 
 
 may pass around obstructions, 476 (Ed. n.). 
 
 duty towards, 633, 634, 642 (Ed. n.). See Crossings. 
 
INDEX. 799 
 
 TEEE, ^^^ References are to Pages. 
 
 projecting over neighbor's land, 492 (Ed. n.), 513, 604. 
 TRESPASS, 
 
 the least invasion of property is, 10. 
 
 anomaly of, 14. 
 
 writ of, 14. 
 
 law of, general, 16. 
 
 liability for consequences of, 40, 41. 
 
 action of, dies with wrong-doer, 72. 
 
 inevitable accident as excuse for, 162 v, 163 et seq. 
 
 strict archaic theory of, 168. 
 
 special justification, when proper, 171. 
 
 immunity of public officer, 141 (Ed. n.). 
 
 Injuries to, when actionable or not, 191, 205, 206. 
 
 necessity as excuse for, 199, 475, (Ed. n.) . 
 
 damages in action of, 212 et seq. 
 
 actual damage not material in, 213. 
 
 wanton, 219. 
 
 aggravated, 220, 221. 
 
 injunction restraining, 225 (Ed. n.). 
 
 "merged in felony," 233, 236. 
 
 to foreign land not actionable, 239. 
 
 by taking away wife, etc., 270, 271 (Ed. n.). 
 
 by taking away husband, 272 (Ed. n.). 
 
 or case, whether action for seduction in, 274 d, 275 /. , 
 relation of, to larceny, 425, 432. 
 to land or goods, what, 421, 422 (Ed. fl.), 424. 
 relation of, to conversion, 419, 426. 
 detinue, 420 (Ed. n.) . 
 , to land, by what acts committed, 421, 476. 
 above or under ground, 423. , 
 
 by cattle, 424, 476. 
 to goods, how committed, 424. 
 relation of, to trover, 432. 
 between tenants in common, 447. 
 
 owner entitled to immediate possession may sue for, 452. 
 justification or excuse for, 465 et seq. 
 continuing, 469, 470. 
 by necessity, 475. 
 in fox-hunting, 477. 
 ab initio, 477, 478 (Ed. n.). 
 
 ab initio cannot arise froin nonfeasance, 478, 479. 
 costs in actions for, 480. 
 continuing, restrainable by injunction, 482. 
 distinguished from nuisance, 484 et seq. 
 by cattle, 610. See Cattle, Conversion, Timber. 
 
800 INDEX. 
 
 The Sefereuces are to Pages. 
 
 TRESPASSER, 
 
 not disqualifled to sue, 205, 206 (Ed. n.)- 
 effect of delivery by, 454. . 
 notice-board warning to, 481. 
 
 TROVE?, 
 
 action of, 244, 427, 432, 434. 
 relation of, to trespass, 432. 
 effect of judgement, 435 (Ed. n.). 
 
 special action in some cases where trover does not lie, HI. 
 See Conversion. 
 
 TRUSTEE IN BANKRUPTCY, 
 
 not bound to prosecute for felony before bringing civil action, 236. 
 
 TRUTH, 
 
 as justification, 318 (Ed. n.), 323. 
 maliciously pleaded, 324 (Ed. u.). 
 must be substantially complete, 325. 
 defendant's belief in, immaterial, 327. 
 
 TURN-TABLES, 
 
 liability of proprietors of, 585 (Ed. n.). 
 
 UNAVOIDABLE DAMAGE, 
 no action for, 50, 155, 156. 
 
 UNDERSELLING, 
 
 no action maintainable for, 176. 
 
 UNIVERSITY, 
 
 quasi-judicial powers of, 145. 
 
 UNSEAWORTHINESS, 
 
 ship liable for, 630 (Bd.n.). 
 USER, 
 
 reasonable presumption of, 429, 430. 
 
 VAPORS, 
 
 may be a nuisance, 606 (Ed. n.). 
 
 VENDEE. See Deceit. 
 
 VEHICLE, 
 
 safety of, how far guaranteed by builder, 632. 
 
 VENEREAL DISEASE, 
 
 false charge of, actionable, 299. 
 
 VERDICT, 
 
 excessive, will be set aside, 211 (Ed. n.), 212. 
 in cases of reduction, 281 (Ed. n.). 
 
 VICARIOUS PUBLICATION. See Publication. 
 
INDEX. 801 
 
 The Beferences are to Pages. 
 
 VICEROY, 
 
 local actions against, 135> 
 
 VI ET AEMIS , 
 
 what trespass Is, 187. 
 
 VINDICTIVE DAMAGES. See Exemplary Damages. 
 
 VIS MAJOR. See Act oi' God. 
 
 VISITOR, 
 
 defined, 642 (Ed. n.). 
 
 VOLUNTARY TAKING OF RISK, 
 
 continuing to do work under tlsk which is iacldent to the work 
 
 itself Is, 192. 
 whether plaintiff nolens or miens question of fact, 195. 
 except where risk obvious, 196. 
 relation of negligence of employer to, 196. 
 consent to particular hazard necessary to constitute, 196. 
 distinction where no negligence, 197. See Consbnt. 
 
 VOLUNTEER, 
 
 skill not demanded of, 27 (Ed. n.). 
 in no better plight than servant, 126. 
 
 WANTONNESS, 
 
 actual malice need not be shown, 39, 40, 100 (Ed. n.), 105 (Ed. n.). 
 See Malice, Wilpul Act. 
 
 WARRANTY, ^ 
 
 duties in nature of, 86. 
 expression of opinion is not, 367 (Ed. n.). 
 obligation of, on sale for specific purpose, 632 p. 
 Implied, of agent's authority, 74 k, 660. 
 
 WASTE, 
 
 injunction restraining, 225 (Ed. n.), 430 (Ed. n). 
 
 remedies for, 426. 
 
 what is, 427, 429 (Ed. n.). 
 
 reasonable user of tenement is not, 428. 
 
 by cutting timber, etc., 428, 429 (Ed. n.). 
 
 equitable, 431 a. 
 
 as between landlord and tenant, 431. 
 
 WATER, 
 
 under land, rights of using, 177, 178 (Ed. n.). 
 rights to, protected by injunctioii, 225 (Ed. n.). 
 responsibility of persons artificially collecting, 599, 600. 
 except where storage is a duty, 608. 
 
 51 
 
802 INDEX. 
 
 The References are to Pages. f 
 
 WAY, 
 
 limited right of, 475/. 
 
 WELLS, 
 
 digging i- 'o underground stream, 177, 178 (Ed. n ). 
 
 WHARFING 
 
 duiies o '.regards river bed in his possession, 630. 
 
 WILFUL A< , 
 
 liability f 8, 33, 52, 109, 219 (Ed. n.). See Wanton-ness. 
 
 WIND. 
 
 injury by, 29 (Ed. n.), 50 -(Ed. n.), 71. See Act of Gqd. 
 
 WINDOWS, "^^ 
 
 prospective, 179, 180. ' K 
 
 alteration in, does not destroy Claim to light, 511. 
 
 WITNESS, 
 
 immunity of words spoken by, 328 (Ed. n.), '329 (Ed. n.), 330. 
 
 WORDS. 
 
 cannot be assault, 252 (Ed. n.), 254. 
 imprisonment by, 259 (Ed. n.). ' 
 
 repetition of, 292, 308, 315. ^ 
 
 cannot be trespass, 422 (Ed. n.). . See Dbramation. 
 
 WORKS OF NECESSITY, 199. See Authorized Works, Necessity. 
 
 WRIT, 
 
 of right, HI. 
 
 . of debt, 14. ' 
 
 of detinue, 14-16. ^ 
 
 of deceit, 14 m. ^ 
 
 of trespass, 14 m. 
 of trespass on the case, 14, 24. 
 quod permittat, 617. »• 
 
 WRITER, t^' 
 
 fair comment on works of, privileged, 321 (Ed. nO, 322. 
 
 WRONG-DOER, 
 
 not necessarily disentitled to sue for wrong to himself, 205, 206. 
 
 WRONG-DOERS, 
 
 do not forfeit rights of action, 206-208. 
 joint liability . of, 230. 
 contribution between, 231. 
 
INDEX. 803 
 
 The References are to Pages. 
 WRONGS, 
 
 without moral blame, 4 (Ed. n.), 9 (Ed. n.)> 10. H- 
 
 to the person, 7. , 
 
 to property, 7. 
 
 to person and property, 7. See Tort. 
 
 of imprudence and omission, 11, 20. 
 
 intended or not, 20. 
 
 compensation lor. See Damages. 
 
 And see Intention, Remedies, WiLpni. Act. 
 
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