ilSll I" (IJnrnrU ICaui i»rl)nnl ICtbrary Cornell University Library KD 1949.P77 1920 The law of torts :a treatise on the prin 3 1924 022 356 798 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022356798 THE LAW OF TORTS. ELEVENTH EDITION. BY THE SA3IE AUTHOR. PEINCIPLES OF CONTRACT. A TREATISE ON THE GENERAL PRINCIPLES CONCERNING THE VALIDITY OF AGREEMENTS IN THE LAW OF ENGLAND. EIGHTH EDITION. Demy 8vo. 1911. Price £1 :12s. A DIGEST OF THE LAW OF PARTNEESHIP. WITH FORMS AND AN APPENDIX ON THE LIMITED PARTNERSHIPS ACT, 1907, TOGETHER WITH THE RULES AND FORMS, 1907, 1909. ELEVENTH EDITION. Demy 8vo. 1920. Price 15s. THE EXPANSION OF THE COMMON LAW. Demy 8vo. 1904. Price 6s. THE LEAGUE OF NATIONS. Demy 8vo. 1920. Price 10s. net. THE LA.W OF TORTS; A TREATISE ON THE PRINCIPLES OF OBLIGATIONS ARISING FROM CtVIL WRONGS IN THE COMMON LAW: TO WHICH IS ADDED THE DRAFT OF A CODE OF CIVIL WRONGS PREPARED FOR THE GOVERNMENT OF INDIA. BY THE RIGHT HONOURABLE Sir FREDERICK POLLOCK, Bt., K.C, D.C.L., OF LISCOLK'S inn; CORRRSPONDBNT of the institute of FRANCE; ASSOCIATE OF THE ROYAL ACADEMY OF BELGIUM; HONORARY FELLOW OF TRINITY rOLLHGE. CAMBRIDGE AND CORPUS CHRISTI COLLEGE, OXFORD ; AND HONORARY DOCTOR OF LAWS IN THE UNIVERSITIES OF PARIS, EDINBURGH, DUBLIN, HARVARD AND CHRISTIANIA. Author of "Principles of (Contract," "A Digest of the Lun; of Partnership," &c. ELEVENTH EDITION. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE. TORONTO: THE CARSWELL COMPANY, LIMITED, 145-149, ADELAIDE STREET WEST. 1920. /3 /Zo(^ TO THE MEMORY THE RIGHT HONOURABLE SIR JAMES SHAW WILLES, Knt. SOMETIME A JUSTICE OF THE OOltisiON -JBENOH, A MAN COtTRTEOtJS AND ACCOMPLISHED, A JITDOE WISE AND VALIANT ; AND TO MY FEIEND OLIVER WENDELL HOLMES, AN ASSOCIATE JUSTICE OP THE SUPKEMB COUET OF THE UNITED STATES. // ( vii ADVERTISEMENT TO THE ELEVENTH EDITION. One material change in the text of this edition is at pp. 390, 391, the anomalous decision in Newton v. Harlund and others which followed it being now over- ruled in the Court of Appeal. There has been recent judicial discussion of still doubt- ful questions as to the test of command or persuasion, individual or collective, being lawful or otherwise, but nothing decisive enough, it seems to me, to justify a more confident statement than I have hitherto made. At pp. 515, 516, the results of Indermaitr v. Dames are stated in a more carefully guarded form in view of judicial and other criticism of the doctrine as a whole. The decision of the Court of Appeal in the De Keysefs Hotel case, noted at pp. 124, 171, is now affirmed by the House of Lords ([1920] A. C. 508), the conclusion being that the petitioner was entitled to compensation under the Defence Act, 1842. Cases have been noted down to those reported in July, 1920. Vni ADVERTISEMENT TO THE ELEVENTH EDITION. The index is revised by Mr. Edward Potton. Side-notes are omitted in this edition by reason of the excessive increase in the cost of printing. Their sub- stance is preserved in a continuous form in the table of contents, which I trust will be found sufficient for most purposes. E. P. Lincoln's Inn, MiDSUMMEE, 1920. ( ix ) TABLE OF CONTENTS. Book I. GENERAL PART. CHAPTEE I. The Nature of Toet m Geneeal. PAGE Of tort in general 1 Tort distinguished from breach of contract 3 History of English classification 3 Personal wrongs 6 Wrongs to property 7 Wrongs affecting person and property 7 Wilful wrongs 8 Wrongs unconnected with moral blame i> Wrongs of imprudence and omission 10 Relation of the law of Torts to moral duties 11 Early forms of action 12 Rationalized version of law of trespass 14 Analogies of Roman law 1? Mollis and Culpa 16 Liability quasi ex delicto 17 Summary of results 18 CHAPTER II. Principles of Liability. Want of generality in early law 20 General duty not to do harm in modern law 21 Authorities 22 When malice material 23 Breach of specific legal duty 25 Duty of respecting property 27 Duties of diligence 27 X TABLE OF COXTENTS. PAGE Assumption of sld'.l 27 Exception of action under necessity 28 Liability in relation to consequences of act or default 28 Measure of damages 29 "Immediate cause" 30 Liability for consequences of wilful act 31 "Natural consequences" 33 "Natural and probable" consequence 34 Liability for consequences of trespass 37 Consequences too remote 38 Liability for negligence 39 Contrasted cases of non-liability and liabUity: Cox v. Burbidge; Lee V. Eiley 45 Metropolitan Eail. Co. v. Jackson 45 Non-liability for consequences of unusual state of things: Blyth V. Birmingham Waterworlis Co 46 Sharp V. Powell 47 Whether same rule holds for consequences of wilful wrong : Clark V. Chambers 47 Consequences natural in kind though not in circumstance 49 Damage resulting from nervous shock 50 CHAPTEK III. Peesoxs affected by Tokts. 1. Limitations of Personal Capacity. Personal status immaterial in law of tort: but capacity material.. 53 Exceptions: Convicts and aliens 55 Infanta 55 ilarried Women: the common law 57 Married Women's Property Ac:, 1882 57 Common law liability of infants and married women 58 Corporations 59 Responsibility of public bodies for management of works under their control 60 2. Effect of a Party's Death. Actio personalis moritur cum persoiM Gl Disallowance of actions founded on death of himian being, 03 Exceptions: Statutes of Edw. III. giving executors right of suit for trespasses 64 Of Will. IV. as to injuries to property 65 No right of action for damage to personal estate consequential on ■personal injury 66 TAKLE OF CONTENTS. XI PAGE Lord Campbell's Act: rights created by it 06 Construction 6S Interests of survivors distinct 70 Statutory cause of action is in substitution, not cumulative 70 Scottish and American laws 70 Eight to follow property wrongfully taken or converted 71 Eule limited to recovery of specific property or its value: Phillips V. Homfray 72 2a. Assignment 73 3. Liability for the Torts of Agents and Servants. Command of principal does not excuse agent's, wrong 73 Cases of special duty, absolute or in nature of warranty, distin- guished 73 Modes of liability for wrongful acts of others 74 Command and ratification 75 llaster and servant 76 Question of master's benefit generally immaterial ■ 76 Eeason of master's liability 78 Who is a servant 80 Specific assumption of control 81 Delegation of authority 82 Temporary transfer of service 83 "Power of controlling the work" explained 84 Public offices under the Crown 85 What is in course of employment 85 (a) Execution of specific orders 86 (b) Negligence in conduct of master's business 86 Departure or deviation from master's business 87 (c) Excess or mistake in execution of authority 90 Interference with passengers by guards, &c 91 Arrest of supposed offenders 92 Act wholly outside authority: master not liable 93 (d) Wilful wrongs: trespasses in excess of authority for master's purposes 94 Fraud of agent or servant 96 Liability of quasi-corporate association for wrongs of servants 97 Liability of firm for fraud of a partner 93 Injuries to servants by fault of fellow-servants 99 Common law rule of master's immunity 100 Eeason given in the later cases 100 Servants need not be about same kind of work 102 There must be a general common object 103 Eclative rank of 39rvants immaterial 103 Servants of sub-contractor 105 Xll TABLE OF CONTENTS. PAGE Work done under compulsion of law 105 Volunteer assistant on same footing as servant , 106 Exception where master interferes in person 106 Employers' Liability Act, 1880 106 Resulting complication of the law 107 Workmen's Compensation Acts, 1897 and 1906 108 CHAPTER IV. General Exceptions. Conditions excluding liability for act prima facie wrongful 110 General and particular exceptions Ill 1. Acts of State. Acts of state 112 General ground of exemption 113 Local actions against Ticeroy or governor 115 Power to exclude aliens 115 Acts of foreign powers 116 Summary 116 2. Judicial acts. Judicial acts 117 Liability by statute in special cases 119 Judicial acts of persons not judges 119 3. Executive acts. Executive acts 120 Acts of naval and military ofBcers 122 Of other public authorities 123 Indian Act XVIII. of 1850 123 Executive acts in time of war 123 i. Quasi-judicicd acts. Acts of quasi-judicial discretion 124 Rules to be observed 12-5 Absolute discretionary powers 127 Whether duty judicial or ministerial: Ashby v. White 127 5. Parental and Qiwsi-parental Authority . Authority of parents 128 Of custodians of lunatics 128 G. AiitJwriiies of Necessity. Of the master of a ship 129 TABLE OF CONTENl'S. XUl 7. Damage incident to authori-ed acts. PAGE Damage incidentally resulting from lawful act 130 Bamage from execution of authorized works 131 Xo action for unavoidable damage 132 Care and caution required in exercise of discretionary powers ... 133 8. Inevitable Accident. Inevitable accident resulting from lawful a:'t 136 On principle such a:-t excludes liability 137 Apparent conflict of authorities 139 American decisions: The Nitro-Glycerine Case (Sup. Ct. U.S.).. 140 Brown v. Kendall (ilass.) 141 English authorities: Cases of trespass and shooting 142 Cases where exception allowed 145 9. Exercise of Common Rights. Immunity in exercise of common rights 149 Digging wells, ic. in a man's own land 153 Chaaemore v. Richards 154 Other applications of same principle 155 Whether malice material in these cases 157 Eoman doctrine of "animus vicino nocendi " 158 No exclusive right to names 158 10. Leave and Licence: Volenti non fit iniuria. Consent or acceptance of risk 15i> Express licence 160 Limits of consent 160 Ljcence obtained by fraud 163 Extended meaning of volenti non fit iniuria to assumption of risk 163 Belation of these oases to inevitable accident 164 Knowledge of risk opposed to duty of warning 165 Cases between employers and workmen: Smith v. Baker 166 Distinction where no negligence at all 168 Distinction from cases where negligence is ground of action 169 11. Works of Necessity 170 12. Private Defence. Self-defence 1''2 Killing of animals in defence of property 174 Assertion of rights distinguL3hed from self-defence 175 Injury to third persons in self-defence 175 13. FUOntif a Wrong-doer. Harm sulfered by a wrong-doer 177 Sunday travelling: former conflict of opinion in U.S '.. 179 Cause of action connected with unlawful agreement 179 XIV TABLE OF CONTENTS. CHAPTEE V. Of Eemedies foe Toets. PAGE Diversity of remedies 181 Self-help 182 Judicial remedies: damages 183 Nominal damages 184- Nominal damages possible oaly when an absolute right is infringed 18f> Cases where the damage is the gist of the action :... 188 Peculiarity of law of defamation 188 Ordinary damages 188 Exemplary damages 190 Analogy of breach of promise of marriage to torts in this respect. 192 Mitigation of damages 192 Concurrent but severable causes of action 193 Injunctions 194 On what principle granted 195 Former concurrent jurisdiction of common law and equity to give compensation for fraud 195 Special statutory remedies, when exclusive 196 Joint wrong-doers 198 Eules as to contribution and indemnity 199 Trespass amounting to felony 201 Stay of proceedings until prosecution 202 Locality of wrongful act as affecting remedy in English Court ... 203 Acts not wrongful by English law 20? Acts justified by local law 203 Act wrongful by both laws 204- PhiUips V. Eyre 205 Limitation of actions 208 Suspension of the statute by disabilities 208 Erom what time action runs 209 Statutory penalties 209 Special protection of justices, constables, &c 210 Exception of concealed fraud 211 Conclusion of General Part 212 TABLE OP CONTENTS. Xr Book II. SPECiriC WRONGS. CHAPTEE VI. Peesonal Wbonos. I. Assault and Battery. rvGE What is a battery 213 What an assault 213 Excusable acts 214 Self-defence 218 Ulenaco distinguished from assault 219 Summary proceedings when a bar to civil action 21P II. False Imprisonment. What .is false imprisonment 220 Justification of arrest and imprisonment '. 221 Who is answerable 222 Reasonable and probable cause 224 III. Injuries in- Family Relations. Protjciion in per-onal relations 22."; Historical accidents of the common law herein 226 Trespass for taking away wife, &o., and per quod fei-i-itiiim amisit 227 '■Criminal conversation" 228 Enticing away servants 229 Actions for seduction in modern practice 230 Damages 232 Services of young child 233 Capricious operation of the law 233 Constructive service in early cases 234 Intimidation of servants and tenants 234 Coercion of customers 23(i CHAPTEE \'II. Defajutiox. Civil and criminal jurisdiction 23~ Slander and libel 237 1. Slander. When slander is actionable 239 Meaning of "prima /i7«p libellous " ...^ 240 Special damag-e 240 Repetition of spoken words 241 XVI TABLE OF CONTENTS. PAGE Special damage involves definite temporal loss 242 Imputation of criminal offence 243 Charges of mere immorality not actionable 244 Slander of Women Act 244 Imputation of contagious disease 245 Evil-speaking of a man in the way of his business 245 Words indirectly causing daonage to a man in his business 247 2. Befamation in General. Defamation 248 " ImpUed malice " 248 What is publication 249 Vicarious publication 251 Construction of words: Innuendo 252 Libellous tendency, not intention, the test: proof of tendency — 253 Eepetition and reports may be libellous 255 3. Exceptions. Exceptions: fair comment 256 What is open to comment, matter of law 259 Whether comment is fair, matter of fact 260 Justification on ground of truth 26] Must be substantially complete 262 Mixed defence of justification and fair comment 262 Extent of justification 264 Defendant's belief immaterial 265 Parliamentary and judicial immunity 265 Other persons in judicial proceedings 266 Reports of officers, &c 267 Qualified immunity of "privileged communications" 268 Conditions of the privilege 268 "Express malice" 269 What are privileged occasions 270 Moral or social duty 270 , Self-protection 271 Information for public good 272 Fair reports 273 Parliamentary papers 273 Parliamentary debates and judicial proceedings 274 Volunteered reports 276 Excess of privilege 276 Honest belief is not nejessarily reasonable belief 277 Power of jury in assessing damages 278 Statutory defences 279 Limits of interrogatories in action for libel 279 Bad reputation of plaintiff 280 Injunctions 280 TABLE OF CONTENTS. xvi y OHAPTEE VIII. Wkonqs op Fraud, Bad Faith, and Oppression. Natore of the wrong 281 Concurrent jurisdiction of common law and equity 281 Difficulties of the subject: complication with contract 282 Questions of fraudulent intent 283- Fraud of agents og^. General conditions of right of action 284 (a) Falsehood in fact 28r; Misrepresentations of law 287 Falsehood by garbled statements 288 (b) Knowledge or belief of defendant 288 Representations subsequently discovered to be untrue.. 292 Reckless assertions 294 Breach of special duty to give correct information ... 294 Estoppel. Burrowes v. Locke: former supposed rule of equity 295' (o) Intention of the statement 297 Representations to class: PolhUl v. Walter 298 Denton v. G. N. R. Co 299 Peek V. Gurney 299 (d) Reliance on the representation 300' Means of kuowledge immaterial without independent inquiry 301 Perfunctory inquiry wUl not do 302 Ambiguous statements 303 (e) Lord Tenterdeu's Act 304 Equity and law under Judicature Acts , 305 ilisrepresentation by agents 306 Liability of corporations herein 308 Reason of an apparently hard law 309- II. Slander of Title. Slander of title 310- Recent extensions of the principle 310 Trade marks and trade names 313 Unfair competition 316 III. Maliciovx Prosecution and Abuse of Process. Malicious prosecution 316- MaUcions civil proceedings 319 P.— T. h SVIU TABLK OF CONTENTS. IV. Conspiracy; Procurement of Wrongs. page Conspiracy 322 H«lation of conspiracy to lawful acts or forbearances of third persons 326 Conspiracy not an adequate test of liability 328 Statutory declaration of law as to trade disputes 330 Actions for procuring breach of contract 331 Remoteness of damage 33S Inducement of acts not in themselves unlawful 334 Suggested solution 336 Interference with franchise 337 Maintenance .< 338 Interference with occupation: not a special cause of action.. 338 Trade Disputes Act, 1906 340 CHAPTEE IX. Weongs to Possession and Peopeety. I. Duties regarding Property generally. Absolute duty to respect others' property 342 Title, justification, excuse 342 Title dependent on contract 343 Exceptional protection of certain dealings in good faith 344 •Common law rights and remedies 34o Possession and detention 346 Trespass and conversion 348 Alternative remedies 349 II. Trespass. "What shall be said a trespass 350 Quaere concerning balloons arid aircraft 351 Trespass to goods 353 III. Injuries to Reversion. "Wrongs to an owner not in possession 354 rV. Waste. What is waste 356 Modem law of waste: tenants for life 358 Landlord and tenant , 359 TABLE OF CONTENTS. xix V. Conversion. v\nE Relation of trover to trespass 359 ^\hat amounts to conversion 36] Ao:s not amounting to conversion 364 Dealings under authority of 'apparent owner 364 Acts of servants 366 Redelivery by bailees 367 Abuse of limited interest 368 Conversion by estoppel 37I VI. Injuries between Tenants in Common. Trespasses between tenants in common 371 ^ II. Extended Protection of Possession. Rights of de facto possessor against strangers 373 Rights of owner entitled to resume possession 376 Rights of derivative possessors 377 Possession derived through trespasser 378 VIII. Wrongs to Basements, ^c. Violation of incorporeal rights 379 IX. Grounds of Justification and Excuse. Licence 381 Revocation of licence 382 Executed licences 384 Expression of licensor's will 386 Distinction from grant as regards strangers 386 Justification by law 387 Re-entry: herein of forcible entry 388 Fresh re-entry on trespasser 391 Recaption of goods 392 Process of law: breaking doors 394 Distress 395 Damage feasant 395 Entry of distrainor 397 Trespassei justified by necessity 397 Fox-hunting not privileged 399 Trespass aJ> initio 399 X. Bemedies. Taking or retaking goods 402 Costs where damages nominal '. 402 Injunctions 404 Effect of changes in procedure 404 h 2 XX TABLK OF CONTENTS. CHAPTER X. Nuisance. PAae: Nuisance, public or private 405 Private right of action for public nuisance 40C Special damage must be shown 407 Private nuisance, what 409 Kinds of nuisance affecting — 1. Ownership 410 2. Itira in re aliena 411 3. Convenience and enjoyment *. 41- Measure of nuisance 412 Injury to health need not be shown 412 Plaintiff not disentitled by having come to the nuisance 413 Innocent or neiessary character of ofEeiisive occupation, or con- venience of place, no answer 414 Modes of annoyance 410 Injury common to the plaintiff with others 418 Injury caused by independent acts of different persons 413 Obstruction of lights 419 Nature of the right to light 420 Any diminution causing substantial damage is a wrong 421 Supposed rule as to angle of forty-five degrees 422 Enlargement or alteration of lights 422 'Nuisance" to market or ferry 424 Kemedies for nuisance 424 Abatement 424 Notice to wrong-doer 425 ISTuisances of omission 426 Old writs 428 Damages 428 Injunctions 429 Difficulty or expense of abatement no answer 434 Parties entitled to sue for nuisance 434 Parties liable 435 CHAPTER XI. Negligence. I. The General Conception. Omission contrasted with action as ground of liability 438 General duty of caution in acts 439 Overlapping of contract and tort 439 Definition of negligence 441 Standard of duty is external 443 Diligence includes competence 445 Degrees of negligence 445- TABLE OF CONTENTS. xxi II. Efideiice of Negligence. _.-j, .Vcglii>enc3 a question of mixed fact and law 446 Burden of proof ' ^^-j Where there is a contract or undertaking 449 Things within defendant's control {res ipsa loqulim--) 450 Common course of affairs judicially noticed 451- ■On evidence sufficient in law, question is for jury 452 Metropolitan R. Oo. (.Jackson 453 Cases of level crossings } 455 ■•■ Invitation to alight " 457 Complications with contributory negligence 437 -Evidence of nE^ligenoe:" Smith v. L. & S. W. R. Co 458 Xo precise general rule 4(30 Due care varies as apparent risk: application of this to accidents through personal infirmity 4C0 -Distinction where person acting has notice of special danger to infirm or helpless person 461 III. Contributory yegligence. Actionable negligence must be direct cause of harm: where plaintiff's own negligence proximate cause, no remedy 462 Tuif V. Warman 464 Radley v. h. ic N. W. R. Co 465 "Proximate," "direct" or "decisive" cause 467 Self-created disability to avoid consequences of another's negli- gence 468 Earlier illustrations: Davies v. Mann 469 Butterfield r. Forrester 470 ■Combined negligence 472 The exploded doctrine of "identification" 473 Accidents to children in custody of adult 476 Children, &c. unattended 477 Child v^ Ilearn 477 Admiralty rule of dividing loss 479 IV. Auxlliarij Rides and Presumptions. Action under difficulty caused by another's negligence 480 No duty to anticipate negligence of others 481 Choice of risks under stre3S of another's negligence 482 ■Clayards v. Dethick 482 Doctrine of New York Courts 484 .Separation of law and fact in United States -... 485 XXU TABLE OS CONTENTS. CHAPTER XII. DoiiES OF Insueing Safety. p^uj, Exceptions to general limits of duties of caution 487 %lands f. Fletcher 439 Exception of act of God 496 Act of stranger, &c -97 Authorized works 498 G. W. E. Co. of Canada v. Braid 499 Other cases of insurance liability 500 Duty of keeping in cattle 500 Dangerous or vicious animals 502 Fire, firearms, &c 504 Duty of keeping in fire 504 Carrying fire in locomotives 505 Firearms: Dixon v. Bell 506 Explosives and other dangerous goods 507 Gas escapes 508 Petrol 509 Poisonous Drugs: Thomas c. Wuichester 509 Difiiculties felt in England: George v. Skivington 510 Clarke -y. A. & N. Co-op. Society 511 Duties of occupiers of buUdings in respect of safe repair 512 Extent of duty 512 Modern date of the settled rule: Indermaur v. Dames 513 Persons entitled to safety 516 Duty in respect of carriages, ships, i&c 519 Limits of the duty 521 Volenti noil fit iniuria 521 Duty towards passers-by 522 Presumption of negligence {res ipsa logiiitiir) 524 Distinctions 527' Position of licensees 528 Host and guest 531 Liability of licensor for "ordinary negligence" 532 .Owner not in occupation 532. CHAPTER XIII. Special Eelaiioxs of Contract and Toet. Original theory of forms of action 534 Action^ on the case C35 Causes of Action: modern classification as founded on contract of tort 536 Classes of questions arising ;37 TABLE OF CONTENTS. XXIU I. Alternative Forms of Remedy on the same OausR of Action. PAGE. One cause of action and alternative remedies 537 Common law doctrine of misfeasance 538 Special duty of carriers and innkeepers by " custom of the realm " 541 Alternative of form does not affect substance of duty or liability.. 542 In modem law obligation wholly in contract 543 Limits of the rule ; 544 II. Concurrent Causes of Action. Cases of tort, whether of contract or no contract between same parties 5^3 Contract "implied in law " and waiver of tort 547 Implied warranty of agent's authority: Collen v. Wright 548 Concurrent causes of action against different parties 549- DalyeU v. Tyrer 5*9' Foulkes V. Metropolitan Dist. E. Co 550' KeUy V. Metrop. Ey. Co • ■■• 551 Causes of action in contract and tort at suit of different plaintiffs 5S1 Alton V. Midland E. Co.: no longer authority 552 Winterbottom v. Wright, &c 554 Concurrence of breach of contract with delict in Eoman law 556 III. Causes of Action in Tort dependent on a Contract not between the same Parties. Causes of action dependent on a collateral contract 556 Procuring breach of contract 5o7 Damage to stranger by breach of contract •■• 558 Position of receiver of erroneous telegram: different views in England and United States 559' The conflict considered on principle Character of moraUy innocent acts affected by extraneous con- , , 563 tract IV. Measure of Damages and other Incidents of the Remedy. ^ J 565 Measure of damages Eule as to consequential damage ■ Penal character of action for breach of promise of marriage 567 Contracts on which executors cannot sue ^o* XXIV TABLE OF CONTENTS. APPENDIX. PAGE A. — Historical note on the classification of the forms of personal action. (By Mr. F. W. Maitland) 571 B.— I. Trade Disputes Act, 1906 579 II. Employers' Liability Act, 1880 581 •C. — Statutes of Limitation: 21 James I. c. 16, ss. 3, 7 58.') 4 & 5 Anne, c. 3, a. 19 590 19 &. 20 Vict. c. 97 (Mercantile Law Amendment Act), s. 12 591 D. — Contributory negligence in Roman law 592 INDIAN CIVIL WRONGS BILL. Peefatoey Note 595 ■Geneeal Paet — Chap. I. General principles of liability 600 II. General exceptions 609 .Special Part — III. Assault and false imprisonment 620 IV. Defamation 623 V. Wrongs against good faith 634 VI. Wrongs to property C39 VII. Nuisance 644 VIII. Negligence 650 IX. Of damages for civil wrongs 662 ( XXV ) INDEX OF CASES. A. Abdul Haxim r. Tej Chander Mukarji, 631. Abraham v. Reynolds, 531. Abrahams v. Deakin, 94. Abrath c. N. E. Rail. Co., 317, 638. Ackers v. Howard, 128. Aeton r. Blundell, 153, 154, 158. Adam v. British and Foreign SS. Co., 67. L-. Ward, 268, 269. Adams v. L. & Y. Rail. Oo., 482. V. Ussell, 415. Adamson v. Jarvis, 199, 200, 608. Addie c. Western Bank of Scot- land see Western Bank of Scotland r. Addie. Addis V. Gramophone Co., 568. Admiralty Commissioners v. SS. Amerika, 63. Agincourt, The, 129. Agius V. Great Western Colliery Co., 566. Aikens r. Wisconsin, 23. Ajello V. Worsley, 152, 316. Alabaster v. Harness, 338. Alderson v. Waistell, 138. Aldred's Case, 414, 415, 646. Aldrich v. Wright, 174. Alexander v. Jenkins, 246. t;. N. E. Rail. Co., 262. V. Southey, 363. Allbutt V. General Council of Medical Education, 125, 274. Allen V. Plood, 23, 24, 155, 158, 249, 319, 323, 326, 329, 331, 335, 339. V. L. k S. W. Rail. Co., 93, 607. i/. Martin, 404. Allinson v. General Council, fee, 126. Allsop V. Allsop, 52, 242. Alton V. M. Rail. Co., 552, 553, 554, 558, 568. Amann v. Damm, 633. Ambergate, &o. RaU. Co. v. M. RaU. Co., 395. Ambler (Jeremiah) & Sons v. Bradford Corporation, 210. V. Gordon, 422. Ames V. Union Rail. Co., 553. Anderson v. Gorrie, 117, 119. V. Radcliffe, 379. ! Andrews v. Mitchell, 126. V. Mockford, 300. D. Waite, 423. Angle V. Chicago, St. Paul, &c. Rail., 331. Angus V. Clifford, 291, 296. Ankerson v. Connelly, 423. Anthony r. Haney, 393. Applebee v. Percy, 603. Arkwright '!'. Newbold,293. Arlett V. Ellis, 426. Armory r. Delamirie, 77, 374, 3«7. Armstrong t. L. & Y. Rail. Co. 654. Arnold v. Holbrook, 397. Ash V. Dawnay, 401. Ashby V. White, 127, 186, 337. Ashcr r. ^^^litlock, 374. Ashworth r. Stanwlx, 106. Atkinson t\ Newcastle Water- works Co., 26, 197, 198. Attack i\ Bramwell, 400. A.-G. V. Brighton & Hove Co- operative Supply Association, 415. V. Cambridge Consumers' Gas Co., 430. v. Cole, 415. V. Colney Hatch Lunatic Asylum, 434. V. De ICeyscr's Hotel, Preface. V. Gas Light and Coke Co., 134. V. Horner, 380. r. Manchester Corpora- tion, 431. V. Margate Pier Co., 210. XXVI INDEX OF CASES. A.-Gr. V. Jleti-opolitaii Rail. Co., 132 V. Sheffield Gas Co., 430. V. Tomline, 150. of S. Nigeria v. John Holt & Co., 385. Austin V. Dowling, 223, '224. V. G. W. UaU. Co., 542, 546, 647. Australia, The, 199, 200. Australian Newspaper Co. v. Bennett, 255. Avis V. Newman, 357. Aynsley v. Glover, 420, 422. B. Bask V. Staeey, 421. Backhouse v. Bonomi, 187, 209. Baddeley v. Earl Granville, 522, 583. Bagram v. Khettranath. 352. Bailey (W. H.) & Son' •«. Hol- born & Frascati, 423. Bainbridge r. Postmaster-Gene- ral, 85, 115. Baird v. Wells, 126. Baker v. Bolton, 64. V. Carriok, 272. V. Sebright, 358. V. Snell, 502. Baldwin r. Casella, 503. V. Elphinston, 249. Ball, Ex parte, 210. V. Ray, 417. Ballacorkish Mining Go. v. Har- rison, 153. Ballantine v. Golding, 207. Ballard v. Tomlinson, 154, 495. Balme v. Hutton, 122, 362. Baltimore and Potomac R. R. v. Cumberland, 462. and Potomac R. R. v. Fifth Baptist Church, 135. Bamfield v. Goole and Sheffield Transport Co., 141. Bamford v. Turnley, 415, 416, 647. Banbury v. Bank of Montreal, 304, 305, 308. Bank of New South Wales v. Owaton, 93. Barber v. Penley, 408. Barham v. Lord Huntingfield, 280. Barker v. Braham, 75, 222. V. Furlong. 362, 367, 376. Barnes v. Ward, 177, 522, 660. Barnett v. Guildford, 379. Barry v. Croakey, 285. Barton v. Taylor, 123. Barton's Hill Coal Co. v. Reid, 79. Barwick v. English Joint Stock Bank, 76, 96, 97, 308, 309. Bastard v. Hancock, 577. Batchelor v. Fortescue, 530. Baten's Case, 411, 428. Bates ('. Batey & Co., 512, 521. ^ Bavins, J., and Sims ^'. L. k S. W. Bank, 371. Bayley v. M. S. & L. R. Co., 92, 607. Beard v. L. General Omnibus Co., 83. Beam, The, 60. Beasley «'. Roney, 57. Beaumont v. Greathead, 186. Becher v. G. E. Rail. Co., 552. Beckett v. M. Rail. Co., 408, 645. Beckham v. Drake, 568. Beddall v. Maitland, 390. Beddow r. Beddow, 194. Behrens v. Richards, 196. BelU'. M. Rail. Co., 192. Benjamin r. Storr, 409, 645. Benton v. Pratt, 311. Bernina, The, 463, 471, 485, 652: Berringer f. G. E. R. Co., 550. Berry v. Da Costa, 192, 567. i\ Donovan, 335. V. Hunun & Co., 69. Bessey v. Olliott, 144. Betta V. Gibbins, 199, 200, 608. Bhugwan Meetha v. Kasheeram Govurdhun, 612. Bhyran Pershad v. Isharee, 621. Biddle v. Bond, 367, 368. V. Hart, 582. Binks r. S. Yorkshire, &c. Co., 5212. Bird V. Holbrook, 165, 177. 1-. Jones, 221. Biscoe V. G. E. Rail. Co.. 133 134, 613. Bishop v. Balkis Consolidated Co., 305. Black V. Christchureh Finance Co., 505. Blades v. Higgs, 378, 393. Blad's Case (Blad v. Bamfield) 204, 206. Blair v. Bromley, 99. Blake v. Barnard, 215. i\ Lanyon, 229. r. Midland Rail. Co., 66 69. INDEX OF CASES. xxvir Blakemore r. Bristol and Exeter Rail. Co., 530. Blamires c. L. & Y. Kail. Co., 198. Blisset V. Daniel, 127. Bloodworth v. Gray, 245. Blundell v. Wolseley, 358. Blyth i'. Birmingham Water- works Co., 39, 47, 441, 459. Boden r. Eoscoe, 395. Bolch r. Smith, 530, 662. Bolingbroke i\ Swindon Local Board, 94. Bonnard i . Perryraan, 195, 280. Booth V. Arnold, 246. Borrows v. Ellison, 209. Boson r. Sandford, 577. Bostook V. Eamsay U. D. C, 210. Boston and Albany E. E. Co. v. Shanly, 508. Bottomley v. Brougham, 119, 266. Bound t. Lawrence, 507. Bourne v. Fosbrooke, 374. v. Swan & Edgar, 315. Bowen v. Anderson, 436. c. Hall, 331,557. Bower v. Peate, 527. Bowker v. Evans, 61. Bowyer v. Cook, 392. Box V. Jubb, 497. Boxsius V. Goblet Fr^res, 250. Bradford, Corporation of r. Fer- rand, 154. ■ V. ilvers, 210. V. Pickles, 23, 155, 157, 158. Bradlaugh v. Gossett, 123. V. Xewdegate, 338. Bradley v. Wallaces, 45. Bradshaw v. L. & Y. Rail. Co., 66. V. Waterlow & Sons, 316. Brannigan v. Eobinson, 581. Bray v. Ford, 279. Brennan v. Donaghy, 54. Brewer v. Dew, 191. Brido-e v. Grand Junction Eail. CoT, 469, 471, 479. Bridges v. N. L. Eail. Co., 452, 453, 457. Brio-gs v. Union Street, Eail., 481. Brinsmead v. Plarrison, 199, 364. Bristol and W. of England Bank V. M. Eail. Co., 371. British Cash and Parcel Con- veyers V. Lamson Store Ser- vice Co., 338. British Columbia Electric E. Co. r. Gentile, 67, 70. British Columbia Electric E. Co. V. Loach, 464, 468. British Mutual Banking Co. m. Charnwood Forest Eail. Co., 95, 97. British S. Africa Co. v. Com- panliia de Mo<;ambique, 205. Broadbent v. Ledward, 574. Broderc. SaiUard, 415, 417. Bromage r. Prosser, 248. Broughton v. Jackson, 224, '225. Brown v. Boorman, 639. V. Eastern and ilidlands Eail. Co., 52. V. Edgington, 291, 540. V. Kendall, 139, 141, 143,. 147, 614. V. Notley, 404. Browne v. Dawson, 392. Brownlie v. Campbell, 282. Brunsden v. Humphrey, 193. Brunswick, Duke of v. King of Hanover, 116. V. Harmer, 250. Bryant (. Herbert, 14, 574, 576. V. Lefever, 419. Bubb V. Yelverton, 359. Buckley v. Gross, 375. Buddie r. Willson, 540. Bullers c. Dickinson, 423. Bullock V. L. G. 0. Co., 194. Bulmer r. Bulmer, 68. Burdett v. Abbot, 394. Burgess v. Burgess, 159. c. Grav, 82. Burling c. Eead, 425. Burnard v. Haggis-, 56. Burns v. Poulson, 88. Buron v. Denman, 114. Burr V. Drury Lane Theatre, 103,. 583. Burroughes r. Bayne, 356, 362. 1 Burrowes v. Lock, 196, 296. Burrows r. Erie Eail. Co., 484. V. March, 6:c. Gas Co., 508. V. Ehodes, 199, 200. Bush I . Steinman, 81. Butler V. Fife Coal Co., 105. V. M. S. & L. Eail. Co.,. 382. Butterfield v. Forrester, 470, 653.. Byrne v. Boadle. .524, 651, 6H1. Bywell Castle, The, 481, 655. -XXVIU INDEX OF CASES, C. ■Cabell V. Vaughan, 577. Cable V. Bryant, 420. Calder V. Halket, 118. ■Caledonian Rail. Co. v. Walker's Trustees, 131. Caliph, The, 67. ■CaUiope, The, 520. ■Cameron v. Nystrom, 83, 105. Campbell v. Padding-ton Cor- poration, 409. -f. Spottiswoode, 257, 25S, 259. ■Campbell Davys v. Lloyd, 427. ■Canadian Pacific R. C-o. v. Parke, 134. V. Roy 133, 499. Cape ■v. Scott, 395. ■Capital and Counties Bank v. Henty, 249, 252, 624, 627, 62S. Carpue v. L. & B. Rail. Co., 450. CSirr V. Fracis Times & Co., 204. Carrington v. Taylor, 339. Carslake v. ilapledoram, 245. •Carstairs v. Taylor, 497. Carter v. DrysQale, 586. V. Thomas, 172. ■Cartwright, Re, 357. Cavalier v. Pope, 518, 533, 555. Cavey v. Ledbitter, 416. Central Rail. Co. of Venezuela v. Kisch, 302. ■Chaffers v. Goldsmid, 337. Challis I'. L. & S. W. Rail. Co., 475. Chamberlain v. Boyd, 242. V. Hazel wood, 229. V. Williamson, 63, 567, 568, 577. Chambers v. Goldthorpe, 120. Chapman ■ v. Auckland Union;, 429. r. Rothwell, 516, 660. Charing Cross Electric Supply Co. V. London Hydraulic Power Co., 494. Charles v. Taylor, 103. ■Chasemore v. Richards, 153, 154, 158, 492, 615. Chastey v. Ackland, 419. Chatterton d. Secretary of State for India in Council, 267, 632. Cheater v. Carter, 495. Cheshire v. Bailey, 88. <3iifEeriel v. Watson, 189. Child V. Hearn, 478. V. Sands, 577. Chinery v. Viall, 369, 543. Chowne f. Baylis, 202. Christie v. Davey, 412. Christopherson v. Bare, 217. Chunder Narain Singh v. Brijo Bullub Gooyee, 610. Citizen's Life Assurance Co. v. Brown, 60 97, 318. City of London Bre^wery Co. v. Tennant, 419, 421. Clark V. Chambers, 43, 47, 49, 50, 334, 475, 476, 478, 603. ■ V. London General Omni- bus Co., 64. V. ilolyneux, 268, 273, 278. V. Woods, 121. Clarke v. A. & N. Co-operative Soc, 511. Clarkson v. Musgrave, 586. Clayards v. Dethick, 482, 484, 655, 656. Clayton v. Le Roy, 362. V. Pontypridd U. D. Council, 210. Cleary r. Booth, 128. Cleather v. Twisden, 99. Clements v. Flight, 574. V. L. & N. W. RaQ. Co., 583. Clifford V. Holt, 421. Clinton v. J. Lyons & Co., 503. Clissold V. Cratchley, 320. Clough V. L. & N. W. Rail. Co.. 286.. Clovres v. Staffordshire Potteries Water-^vorks Co., 434. Clydesdale Bank v. Paton, 306. Cobb V. G. W. Rail. Co., 45, 455. i\ Saxby, 411. Cockle V. S. E. Rail. Co., 457. Colchester, Mayor of v. Brooke 469. Coldrick v. Partridge, Jones & Co., 103. Cole v. De Trafford, 57, 104. V. Turner, 213, 216, 620. Collard -y. Marshall, 194, 280. Collector of Sea Customs v. Pun- niar Chithambaram, 610. Collen V. Wright, 648. Collins V. Evans, 200, 288. Oollis p. Selden, 521, 655. Colls V. Home and Colonial Stores, 416, 420, 421, 422. Commissioners of Sewers v Glasse, 426. Commonwealth v. Collberg, 16-0. V. Pierce, 218 445. INDEX OF CASES. XXIX. Commonwealth v. Rubin, 400. C-onroy ; . Peacock, 585. Consolidated Co. v. Curtis, 366. Conway f. Wade, 98, 340, 580. Cook V. N. Met. Tramways Co., 587. V. Sprigg, 113. Cooke I'. Forbes, 430. r. Midland G. \X. 'R. of Ireland, 44, 462, 475, 478, 528. Cooper !■. Crabtree, 404. I . Willomatt, 364, 368. Co-partnership Farms v. Harvej'- Smith, 266. Cope «'. Sharpe, 170, 172, 396. Corbett V. Pearce, 587. Corby %■. Hill, 387, 523, 52S, 660. Cornfoot c. Fowke, 306, 307. Cornford i: Carlton Bank, 60, 318. Cornish v. Accident Insurance Co., 169. r. Stubbs, 384, 643. Cory & Son v. France, Fenwick & Co., 474, 476. Cory ton v. Lithebye, 576. Cotterell v. Jones, 321, 822. Cotton r. Wood, 447, 448, 652. Couch r. Steel, 197. Coulter V. Express Co., 485. Courtenay v. Earle, 539. Coward r. Baddeley, 216, 620. Cowley, Earl i . Countess Cowley, 159. V. Newmarket Local Board, 198. Cox V. Burbidge, 45, 500, 501, 604. V. Coulson, 518. V. English, Scottish, and Australian Bank, 184, 316. V. G. W. Rail. Co., 582. Coxhead v. Richards, 271, 634. Crabtree v. Robinson, 397. Oracknell v. Corporation of Thet- ford, 133. Crafter v. Metrop. Rail. Co., 451, 459. Crane v. S. Suburban Gas Co., 523. Cribb' V. Kynoch, 101, 104. Cripps V. Judge, 581. Croft V. AllLson, 87. Crossley v. lightowler, 413, 1648. Crowhurst v. Amersham Burial Board, 495. Crumble v. Wallsend Local Board, 209. Crump V. Lambert, 413, 416. Cuenod v. Leslie, 58. ' CuUen V. Thomson's Trustees and- Kerr, 73. Cundy v. Lindsay, 344, 564. Cutts V. Spring, 374. D. Dakhyl t. Labouoliere, 258, 264. Dalston v. Janson, 540. Dalton V. Angus, 380, 420. V. Fitzgerald, 374. V. S. E. Rail. Co., 69. Dalyell r. Tyrer, 82. 550. Danby v. Lamb, 574. Dand v. Sexton, 353. Daniel r. Ferguson, 430. V. Met. RaU. Co., 482. Danube, The, 210. Darley Main Colliery Co. r. Mit- chell, 187, 209, 602. Darlington r. Rosco6& Spms, 108. Dashwood i\ Magniac, 358. Davey r. Askwith, 356. V. L. & S. W. Rail. Co., 456. David V. Britannic Merthyr Coal Co., 493. Davidson v. HlU, 67. Davies, Ex parte, 367. V. Mann, 469, 470, 471,. 653. ■ V. Marshall, 163. . V. Snead, 270, 634. r. Solomon, 242. V. Thomas Owen & Co.,. 337 522. V. Williams, 425. Davis V. Duncan, 259. •;;. Gardiner, 244. V. Marrable, 421. — - — V. Saunders, 146. V. Shepstone, 260, 273. Davys. Campbell v. Lloyd, 427. Davi'kins v. Antrobus, 126, 612. V. Paulet, Lord, 122,. 267. V. Rokeby, Lord, 119, 266. V. Saxe- Weimar, Prince Edward of, 119. 266. Day V. Brownrigg, 159, 313. Dean ,. Bennett, 126, 127. V. Peel, 231. V. St. Paul Union DepBt Co., 521. XXX INDEX OF CASES. Dean of St. xVsaph's Case, 142. Deane v. Clayton, 174. Defries v. Milne, 73. Degg V. 11. Rail. Co., 106, 178. De Keyser's Royal Hotel v. The King, 124, 171. De Medina v. Grove, 320. Denaby and Cadeby Main Col- lierie; r. Yorkshire Miners' As- sociation, 91. Denison v. Ralphson, 575. Denton v. G. N. Rail. Co., 299, 308, 545, 559. Derry v. Peak, 285, 289, 290, 294, 295, 296, 297, 299, 300, 307, 560, 634. -Devonshire SS. Co. v. Barge Leslie, 479. Dewey v. White, 170. Dhurmchund v. Nanabhaee Goo- balchund, 612. Dickeaon v. Watson, 144. Dickinson v. N. E. Rail. Co., 67. Dickon v. Clifton, 540. Dicks V. Brooks, 311. Dickson v. Renter's Telegram Co., 65.8. Digby u. Financial News, 262, 263. Ditcham v. Bond, 229. Dixon V. Bell, 475, 478, 507, 510, 511, 512 65.8. Dobell V. Stevens, 302. Dobree v. Napier, 206. Dobson V. Horsley 518, 532, 533. Dominion Natural' Gas Co. v. Collins, 509. Donald v. Suckling, 368, 640. Donovan v. Laing, 84. Doss V. Secretary of State in Council of India, 113. Doughty V. Firbank, 582. Doulson D. Matthews, 205. Doyley v. Roberta, 246. Drake, Ex parte, 363. Dreyfus v. Peruvian Guano Co., 188 429. DrmnlanTig, The, 480. Drury v. N. E. Rail. Co., 455. Dublin, &c. Rail. Co. v. Slattery, 456, 471, 481. Du Bo"ulay v. Du Boialay, 159. Duckworth r. Johnson, 69. Dulieu V. White & Co. 50. Dunn V. Birmingham Canal Co., 498. V. Devon, &o. Newspaper Co., 279. Dunston v. ,Paterson, 122. Dyer v. Hargrave, 302. o. Munday, 96. E. Eagar v. Grimwood, 232. Earl V. Lubbock, 521, 654. Earle i). Kingscote, 57, 68. Eastern and S. A. Telegraph Co. V. Cape Town Tramways Co., 492. East Fremantle Corporation v. Annois, 132. Ecclesiastical Commissioners v. Kino, 422. Eckert v. Long Island R. R. Co., 485. Edelsten v. Edelsten, 314. Bdgcomb v. Dee, 557. Edgijigton V. Fitzmaurice, 285, 287, 294. Edmondson v. Birch & Co., 250. Edwards v. L. & N. W. RaU. Co., 93. V. Mallan, 544. 0. Midland Rail. Co., 318. Edwick V. Hawkes, 390. E. I. R. Co. v. Kalidas Mukerjee, 450. Elias V. Snowden Slate Quarries Co., 367. Ellenwood v. Marietta Chair Co., 205. Ellerman Lines v. H. & C. Gray- son, 466. Elliott V. Garrett, 280. V. Hall, 519, 659. V. C. P. Roberts & Co., 618. Ellis V. G. W. Rail. Co., 456. V. Loftus Iron Co., 45, 501. D. Sheffield Gas Consumers' Co., 76. Emblen v. Myers, 191, 633. Emm ens v. Pottle, 251. Engelhart v. Parrant & Co., 44, 88, 474. England v. Cowley, 364. Englishman and Australia, The, 199 200. Entiok V. Carrington, 9, 114, 360. European and Australian Royal Mail Co. V. Royal Mail Steam Packet Co., 367. INDEX OF CASKS. XXXI Evans c\ Bickiiell, 304. V. Edmonds, 294. V. Walton, 230. Eyre, Ex parte, 99. E. Fairhurst v. Liverpool Adelphi Loan Ass., 55, 57. Falvey v. Stanford, 184. Farquharson Bros. & Co. ^. Kins & Co., 371. Farrant v. Barnes, 507, 658. Farwell ;•. Boston and Woroester Railroad Corporation, 78, 100, 102, 103, 607. Fay V. Prentice, 410, 646. Fear v. ilorgan, 420. Feltham v. England, 104. Fenn i. Bittleston, 370, 373. Fenna v. Clare, 448. Fergusson v. Earl of Kinnoul 601. Fielden v. Morley Corporation, 210. Filburn v. Eoyal Aquarium Co., 503. Filer v. N. Y. Central R. R. Co., 484. FiUiter v. Phippard, 505. Fine Art Society v. Union Bank oi London, 362. Finlay v. Chirney, 61, 568, 577. Firbank's Executors v. Hum- phreys, 287. Firth V. Bowling Iron Co., 495. Fisher v. Jackson, 127. V. Keane, 126, 612. Fitzgerald v. Firbank, 380. FItzjohn V. Macldnder, 223, 317. Fitzpatrick v. Evans & Co., 587. Fivaz V. Nicholls, 180. Fleming v. Dollar, 262. V. Hislop, 414, 429. V. M. S. & L. Rail. Co., 544. Fletcher, Ex parte, 392. V. Bealey, 431. V. Rylanda, 493. V. Smith, 492. Flewster v. Royle, 224. Fogg V. Boston & Lowell Rail. Co., 59. Forsdike v. Stone, 191. Foster v. Warblington U. C, 496. Fonldes v. Willoughby, 354, 863. Foulger v. Nevyoomb, 247. Foulkes V. Met. Dist. Rail. Co., 519, 520, 546, 550, 552, 553, 659. Francis v. Cockrell, 516, 518, 519. Pranconia, The. 67. Franklin v. S. E. Rail. Co., 68, 69. ' Frank Warr & Co. v. L. 0. C 382. ' Fray v. Blackburn, 119. Fi-CKe V. Calmady, 357. Fr.'mantle v. L. & N. W. Rail. Co., 499, 657. Fritz c. Hobson, 408, 409, 418 429, 64.3. Frogley v. Earl of Lovelace, 382. a. Gallagher v. Piper, 105. Gandy v. Jubber, 436, 649. Ganesh Singh v. Ram Raja, 608. Gardner v. Michigan Central R. R., 452. Garland t . Carl's'.e, 394. Garnett <,. Bradley, 186. Garret v. Taylor, 235, 328. Gas Light and Coke Co. «. Ves- try of St. Mary Abbott's, 135. Gathercole v. Miall, 260. Gaunt V. Fynney, 430. Gautret v. Eo-erton, 528. Gayford v. Chou'.er, 402. Gaylard v. Morris, S54. Geddis v. Proprietors of Bann Reservoir, 131, 133. Gee V. Met. Rail. Co., 170, 655. Gehandji bin Kes Patil v. Gan- pati bin Lakshuman, 645. Geipel v. Peach, 297. George and Richard, The, 42, 67. — ; V. Skivington, 510, 555. Gibbons v. Pepper, 146. Gibbs V. Guild, 211. ^-;- V. G. W. Rail. Co., 582. Giblan u. National Labourers' Union, 98, 327, 333, 335. Gibson v. Evans, 252. Giles V. Walker, 494. Girish Chunder Das v. Gillan- dc'rs & Co., 605. Gladwell v. Steggall, 538, 542. Glamorgan Coal Co. v. S. Wales Miners' Federation, 331, 333. Glasler v. Rolls, 289. Glasspoolc V. Young, 122, 394. Gledstane r. Hewiit, 574. xxxn INDEX OF CASES. Glenwood Lumber Co. v. Phillips, 374. Globe Eefining Co. v. Lauda Cotfxjn Oil Co., 566. Gloucester Grammar School Case, 151., Gtover v. L. & S. W. EaU. Co., 38. Goff V. G. N. Bail. Co.. 93. Goffin V. DonneUy, 267. Goldsmid v. Tunbridge Wells Im- provement Commissioners, 431. Goodson V. Richardson, 404. Goodwyn ». Cheve'.ey, 396, 501. Gorham v. Gross, 528. Gorris v. Scott, 26, 49, 198. Gosden v. Elphiok, 224. Graham v. Peat, 374. Grainger v. Hill, 220. Grand Trunk Rail, of Canada v. Barnett, 177, 528. Grand Trunk Rail, of Canada v. Jennings, 69. Grant Shoe Co. v. Laird, 292. Gray v. PuUen, 74. Grayson v. Ellerman Line, 466. G. 6. Bad. Co. V. Hewlett, 133. G. W. Rail. Co. of Canada v. Braid, 499, 657. Green v. Greenbank, 543. Greene v. Cole, 355. Greenhalgh v. Brindley, 379. Greenland v. Chaplin, 39. Greenock Corporation v. Cale- donian E. Co., 496. Greenslade v. Halliday, 427. Greenwell v. Howell, 210. Greenwood ■«. Hornsey, 422. Gregory v. Duke of Brunswick, 323. V. Piper, 86, 606. Greyvensteyn v. Hattingh, 176. Griffin v. Coleman, 222. Grifath 0. Richard Clay & Sons, 422. Griffiths V. Dudley, 583. ■ — V. London & St. Katha- rine Docks Co., 104. Grinham «. Willey, 223, 224. GrinneU v. Wells, 232, 233. GuiUe V. Swan, 36. Gully V. Smith, 26. Gwilliam v. Twist, 83. Gwinnell v. Earner, 436, 649. H. Hadley v. Baxendale, 29, 566, 567. Hadwell V. Eighton, 500, 502. Hailes v. Marks, 224. Halestrap v. Gregory, 45. Halford v. E. I. Rail. Co., 652. Hall V. Fearnley, 146. u. Hollander, 233. V. Norfolk, Duke of, 187. Halley, The, 85, 203, 204, 206. Halliday v. Holgate, 368. Halsey v. Brotherhood, 310, 311. Hambly v. Trott, 71, 574, 576. Hamilton v. Pandorf, 498. Hammack v. White, 28, 447, 448, 651, 652. Hammersmith Eail. Co. v. Brand, 132, 506. Hanson v. Globe Newspaper, 254. V. Waller, 94. Hardaker v. Idle District Coun- cU, 74, 526. Hardman v. Booth, 564. Harman v. Johnson, 99. Harmer i>. Cornelius, 27. Harper v. Charlesworth, 374. V. Luffkin, 231. Harris f. Brisco, 338. V. De Pinna, 419, 423. C-. Mobbs, 40, 409. r. Perry & Co., 532. Harrison <.. Bush, 272. ■ V. Duke of Eutland, 185, 351. V. Southwark & Vaux- haU Water Co., 133, 412. Harrold v. Watuey, 43. Harrop v. Hirst, 380, 409, 411, 418, 646. Hart V. Gumpach, 267. V. Wall, 252. Hartley v. Cummings, 230. V. Herring, 248. Harvey r. Harvey, 394. Hatchard v. Mege, 65. Haycraft v. Creasy, 286. Hayes i\ Michigan Central Rail- road Co., 41. Hayman v. Governors of Rugby School, 127. Hayn v. CuUiford; 519, 520. Hayward v. Hayward, 275. Heald v. Carey, 364. 365. Heath's Garage v. Hodges, 501. Heaton v. Goldney, 254. INDEX OP CASES. XXX 111 Heaven v. Pender, 439, 440, 510, 517, 601, 661. Hebditoh v. ilaellwaine, 251, 272. 277. Hedges v. Tagg, 231. Hedley v. Pintney & Sons' S. S. Co.," 104. Hellwig I. Mitchell, 243. Helsham r. Blackwood, 264. Hemmings v. Gasson, 269. V. Stoke Pogea Golf Club, 388, 390, 391. Henderson r. Williams, 367. Hendriks v. Montagu, 315. Henwood v. Harrison, 257, 259. Hepburn r. Lordan, 430. Herd v. Weardale Steel Co., 220. Hermann Loog v. Bean, 195. Heske v. Samuelson, 581. Hetherington -v. N. E. Eail. Co.,, 69. Hewitt V. Isham, 383. 386. Hickman i . Maisey, 351 . Hill f. Bigge, 115. V. New Eiver Co., 40, 49, 603. Hillard t . Richardson, 81 . HiUyer r. St. Bartholomew's Hospital, 83. Hinde r. Bandry, 631. Hiort V. Bott, 342, 359, 361, 363, 639. v.. L. ct N. W. Bail. Co., 363. Hirst '-■. West Riding Union Banking Co., 305. Hodges V. Webb, 330, 337. Hogg V. Ward, 221. Holden v. Thompson, 338. Hole V. Barlow, 416. HoHord V. BaUey, 377, 380, 619. Holgate V. Bleazard, 502. Holliday v. National Telephone Co., 74, 526.. Hollins V. Fowler, 9, 342, 344, 361, 362, 365, 565, 641. Holmes v. Mather, 28, 137, 146, 165, 169. ,. X. E. Rail. Co., 517. V. WUson, 392. Holsworthy Urban Council v. H. Rural Council, 210. Honywood v. Honywood, 358. • Hope V. Evered, 223. V. Osborne, 425. Hopkins v. G. N. Rail. Co., 380. Horne v. M. RaU. Co., 566. Horsfall v. Thomas, 301. Hotchkys, Be, 357. Houghton V. Pilkington, 82. Houlden v. Smitli^ 118. Houldsworth v. City of Glasgow Bank 97, 308. Hounsell v. Smyth, 528, 661. Howard v. Shepherd, 555, 556. Howe V. Einch, 582. Hubbuck & Sons v. Wilkinson, Haywood & Click, 312. Huber v. Steiner, 207. Huckl© V. Money, 190. Huggett V. Miers, 518, 633. Hughes u. Macfie, 475. V. Peroival, 528. Hulton V. HultoLowery '■. Walker, 177, 528, 531. Lowther v. Earl of Itadnor, 118. Luby '■. Wodehousp, 115. Lucv V. Bawden, 533. LuiAley '•■ Oyn. 228, 235, 331, LuscOmbe c. G. W. Kail. Co., 396. Lyde -■. Barnard, 304, 306. Lyell V. Ganga Dai, 141, 508,658. Lyle-Samuel v. Odhams, 280. Lylca v. Southend-on-Sea Cor- poration 210. Lynch v. Knight, 241, 242, 334. — V. Nurdin, 43, 44, 475, 603. Lyon V. Fishmongers' Co., 409, 418, 645. Lyons c. Wilkins, 235. Sons 4: Co. v. Gulliver, 409. M. !Maass c. Gas Light and Coke Co., 316. Macbeth 4i Co. v. Chislett, 587. McCord v. Cammell, 582. M'Cully f. Clark, 452, 651. ilaedougall c. Knight, 274. McDowall f. G. W. Rail. Co., 44, 475. Macfadzen v. Olivant, 228. McGiifen r. Palmer's Shipbuild- ing Co., 581. Machado c. Pontes, 205, 206. Macintosh v. Dun, 271. Mackay v. Commercial Bank of New Brunswick, 97, 308. M'Kenzie < . McLeod, 607. McLaughlin v. Pryor, 82. Maclenan r. Segar, 516. McMahon v. Field, 566. McManus v. C. E. C. Rail. Co., 499. Pilcher v. Rawlins, 344. Pilgrim v. Southampton, &0. Co., 404. Pinchon's Case, 65, 576. Pinet & Cie. r. ilaison Louis Pinet, 159, 315. Pippin V. Shcppard, 538. Pittard v. OUver, 276, 277. Pitumba Doss i-. Dwarka Per- shad, 627. Playford v. U. K. Electric Tele- graph Co., 558. Plimmer v. ilayor of Wellington, 386. Plymouth Mutual, &c. Society v. Traders' Publishing .Associa- tion, 258, 280. Polhill V. Walter, 285, 298, 635, 636. Policy V. Fordham, 210. Ponnusdmy Tevar v. Collector of 3Iadui-a, 601. Pontifex i-. Bignold, 187. Ponting V. Noakes, 494. Poole V. Whitcomb, 185. Porter V. Ereudenberg, 55, 112. Potter V. Brown, 207. •<.. Eaulkner. 106. Potts V. Smith, 420. Poulton V. L. 4c S. W. Rail. Co., 93. Pounder v. N. E. Rail. Co., 455. Powell V. Birmingham Vinegar Brewery Co., 314. I. Deveney, 43. V. Fall, 505. V. Gelston, 250. V. Layton, 540. Powys V. Blagravc, 357. Pozzi V. Shipton, 541, 542. Praed v. Graham, 184, 279. Pralhdd M&Mrudfa. v. A. 0. Watt, 609. Pratt V. British 31edioal Associa- tion, 236, 327, 335. Presland v. Bingham, 423. Pretty v. Biokmorc, 436, 649. Priestley v. Fowler, 100. Primrose v. Western Union Tele- graph Co., 563. Pritchard v. Peto, 525. Proctor V. Webster, 272. Pulling V. G. E. Rail. Co., 66. Pullman v. Hill & Co., 249. Puroell V. Sowler, 255, 260, 629. Pursell V. Horne, 214. Pym V. Q. N. Rail. Co., 68, 70. Q. Quarman v. Burnett, 82, 513. Quartz Hill, ko. Co. v. Beall, 194. V. Eyre, 319, 320. Quinn v. Leathern, 23, 24, 149, 156, 322, 323, 326, 328, 329, 332, 339. Quirk V. Thomas, 568. R. R., Jte, 429. Radley v. L. ic N. W. Rail. Co., 463, 466, 466, 470, 471, 481. RafEey v. Henderson, 386. R. Ragundda Rau i-. Nathamuni Thathmdyyangdr, 610. Railroad Co. v. Stout, 45, 462, 528. Raj Chunder Roy v. Shama Soon- dari Debi, 321, 638. Raj Koomar Singh v. Sahebziida Roy, 650. Rajmohun Bose t. E. I. Rail. Co., 135, 614. Raleigh v. Gosohen, 115. Ramsden v. Dyson, 386. 'Hand (Joseph), Ltd. v. Craia:, 77, 94. Randall v. Newson, 521. Rani Shamshoondri Deba r. Dubhu Mundul, 605. Rapier v. London Tramways Co. 134. Rashdall v. Ford, 288. PatclifEe v. Evans, 242, 247 248 310, .312. Raymond v. Fiteh, 568. Rayner v. Mitchell, 90. INDEX OF CASES. XXXIX Ufa r. Slu'wiud, 390. Koad I-. Cokiji-. 216. c. Edwards, 502. I . Friendly Soc. of Opera- tive Stonemasons, 24 332. f. G. E. Rail. Co., 70. (Joseph), Ltd. v. Craig, 94. R«adhead v. Midland Bail. Co., 521. Eeddaway i . Banliam, 153, 315. Redgrave c. Hurd. 293, 302, 637. Reece r. Taylor, 218. E«ed !■. Xutt, 219. Reedie c. L. ^- X. W. R. Co., 81. Ree-io River Silver ^Mining Co. v. Smith, 294. R. < . Burdett, 626. — ( . City of London Court, Judge of, 585. — r. Coney, 161, 162. — , . Cotesworth, 214. — 1-. Duckworth, 215. — r. Essex, Commissioners of Sewers for, 493, 497. — t . Harvey, 33. — i . Jackson, 128. — r. James, 215. — r. Latimer, 32, 145. — ,-. Lesley, 206. — ( . Lewis, 161 . — V. Lincoln's Inn, Benchers of, 125. — i\ Munslow', 248. — r. Orton, 162. — V. Pease, 132, 135. — '. Port of London Authority, 210. — V. Riley, 393. — V. St. George, 215, 621. — ,-. Sankara, 634. — (. Smith, 32. — c. Train, 406. — V. Williams, 60. Reinhardt v. Mentasti, 415, 416. ReyneU v. Sprye. 293. Reynolds v. Edwards, 402. V. Presteign Urban Dis- trict Council, 426. Rice V. Albee, 326. V. Coolidge, 266. V. Manley, 311. V. Shute, 577. Rich V. Basterfleld, 436, 437, 650. V. Pilkington, 577. Richardson v. Graham, 420. Rickards v. Lothian, 44, 497. Ricket V. Met. Rail. Co., 408, 409, 645. Rieketts v. Tlios. Tilling, Ltd., 83. Riding v. Smith, 241, 24s. Eigel, The, 52. Rist V. Faux, 232. Robert Marys's Ca-^^e. iis. Roberts v. Roberts, 242. 'v. Rose, 428. ^ — V. Wyatt, 377. Robinson v. Balmain New I'>iry Co., 220. V. Kilvert, 416. Robson V. N. E. Rail. Co., 170, 457, 484, 655. Rochester Rail. Co. - . Stout. 45,. 462, 528. Roff V. British and French, &c- Co., 250, 272. Rogers v. Lambert, 368. '•. Rajendro Dutt. 1.56, 615. r. Spenoe, 191. 375. Romney Marsh, Bailiffs of v. Trinity House, 42. Roope V. D'Avigdor, 202. Roper f. Commissioners of Works, 85. Roscoe r. Boden, 395. Rose V. Miles, 408, 645. V. N. E. Rail. Co.. 457, 4S4. Rosenberg v. Cook, 374. Rosewell v. Prior, 437, 649. Ross V. Ruggp-l'ricp. 197. Rourke v. White Moss Colliery Co., 84. Rowley v. L. & N. \V. Rail. Co., 69. Royal Aquarium Soeietv < . Par- kinson, 267, 277. Ruben v. Great Fingall Consoli- dated, 96. Ruoff V. Long 4: Co.. 44. 475. Rushmer )'. Polsue. 413. Rust 0. Victoria (iraving Dock Co., 189. Ryall u. Kidwell, 518. Ryder v. Wombwell, 454. Eylands v. Fletcher, 11, 17, 145, 147, 165, 489, 491, 492, 494, 496, 497, 499, 500, 505, 506, 513, 656. Sadgrovo v. Hole. 276. Sadler v. G. W. Rail. Co.. 194, 419. < . Henlock, 80. xi INDEX OF CASES. Sadler v. Staffordshire Tramways Co., 506. St. Asaph's, Dean of. Case. 142. St. Helen'3 Smelting Co. v. Tip- ping, 413, 414. 416, 432, 646, 647. St. Pancras, ^'estry of v. Batter- bury, 198. Salaman c. Sec. of State, &c., 113. Salomons v. Knight, 195, 280. Salvin V. North Brancepeth Coal Co., 413, 416. 434, 646. Samson v. Aitchison, 82. Sanders v. Stuart, 563. V. Teape, 502. Sanderson v. Collins, 88, 360. Saner «>. Bilton, 357. Satku Valad Kadir Sausare v. Ibraham Aga Valad Mirzi Aga, 645. Savile or Savill v. Roberts, 321. Saxby V. Manchester and ShefSeld Eail. Co., 437. Sayers v. Collier, 429. Scott c. Donald, 190. V. London Dock Co., 451, 460, 524, 652. V. Pape, 421. V. Sampson, 280. V. Seymour, 204. V. Shepherd, 32, 48, 144, 175, 603. V. Siansfield, 117, 119, 265, 609. Scott's Trustees v. Moss, 37. Scottish Co-op. Society v. Glas- gow Fishers' Association, 328. Seaman v. Netherolift, 266, 631. Searles u. Scarlett, 275. Secretary of State in Council of India v. Kamachee Boye Sahaba, 113. Selby V. Nettlefold, 399. Semayne's Case, 394. Seroka v. Katteuburg, 61. Seshaiyangar i\ E. Ragunatha Row, 610. Seton V. Lafone, 36, 371. Seward v. The Vera Cruz. 67. Sewell V. National Telephone Co., 223. Seymour v. Greenwood, 92. 95. Shaffers r. Gen. Steam Navio'ii- tion Co., 587. Shama Churn Bose v. Bhola Nath Dutt, 605. Sharp V. Powell, 47. 49, 50, 603. Sharpington v. Fulham Guar- dians, 210. Shaw V. Hertfordshire C. C, 211. V. Port Philip Gold Mining Co., 96. Shelf er v. City of London Elec- tric Lighting Co., 429, 434. Shepheard v. Whitaker, 247. Sheridan v. New Quay Co., 367, 641. Sherrington's Case, 576. Shiells V. Blackburne, 440, 538. Shotts Iron Co. «. Inglis, 416. Simpson v. Savage, 435. Siner v. G. W. Eail. Co., 457. Singer Manufacturing Oo. v. Loog, 315. ■ V. Wilson, 313. Singleton v. E. O. Eail. Co., 477. Six Carpenters' Case, The, 400, 401. Skelton v. L. & N. W. EaU. Co., 460. Skinner v. L. B. & S. C. Rail. Co., 450. & Co. V. Shew & Co., 22, 310. Skipp V. E. C. Rail. Co., 105. Slade's Case, 539. Slazenger & Sons v. Spalding & Bros., 314. Slim V. Croucher, 196, 296. Smart v. Jones, 386. Smith V. Associated Omnibus Co., 587. V. Baker. 147. 166. 167 168,' 170, '522, 583. V. Baxter, 423. V. Birmingham Gas Co., 96. V. Boston Gas Co., 508. • V. Brown, 67. V. Brownlow, Earl, 424. V. Chadwick, 285, 294 300, 303. V. Cook, 519. V. Giddy, 363, 410. V. Green, 35, 567. V. London and St. Katha- rine Docks Co., 517, 661 V. L. & S. W. Rail. Co. 40, 441, 458, 499, 652. V. Males, 349. V. Northleach Rural Dis- trict Council, 211. V. Selwyn, 202. V. S. E. EaU. Co., 455. r. StreatfeUd, 269. V. Sydney, 224. Smithies v. National Association of Operative Plasterers, 333. INDEX OF CASES. xli Snark, The, 520, 526. Sneesby r. L. & Y. Eail. Co., 35. Suowden i\ Baynes, 582. Soltau c. De Held, 416, 647. Somerville c. Hawkins, 272, 633. Southcote V. Stanley, 531. South HeH»n Coal Co. v. N. E. News Association, 247. flouth Wales Miners' Federation V. Glamorf,>-iiii Goal Co., 249, 332. Speight r. Oliviera, 231, 233. Spill i>. Maule, 272, 278. Staitrht •!'. Burn, 423. Stanley v. Powell, 147. Stanton v. Scrutton, 581. Starkey v. Bank oi England, 548. Stoarn v. Prentice Bros., 494. Steele v. Brannan, 275. Stephens c. Elwall, 362, 367. V. !Myer.H, 215. Stetson v. Faxon, 40S, 645. Stevens t>. Jeacocke, 198. V. Sampson, 276, 630, Stevenson (■. Newnham, 158. ('. A\'atson, 120. Steward v. Young, 311. Stewart r. Wyoming Eanche Co., 28S. Stikeman r. Dawson, 55. Stone r. Hyde, 586. Storey v. Ashton, 89, 606. Stot.t"i'. Gamble, 331. StrK't ( . Union Bank, 159. Stuart r. Bell, 271. Stubbs, Ltd. r. Maziire, 247, 253, 275. r. Russell, 217. Sturges V. Bridgman, 413, 414> 648. Sullivan V. Creed, 511. V. Sponeer, 115. V. Waters, 513, 529. Sutton V. Town of W.iuwatosa, 179. Swann e. Phillips, 305. Sweeney v. Coote, 326, 328. V. Old Colony and New- port R. R. Co., 523. Swift V. Jewsbury, 305. Swinfen v. Bacon, 402. Swire v. Francis, 97, 308. Sykea ;•. Sykes, 315. T. TafB Vale Rail. Co. v. Amalga- mated Soo. of Railway Ser- vants, 98. P. — T. Tafi Vale Kail. Co. i/. Jenkins, 69. Tandy v. Westmoreland, 115. Tapling v. Jones, 422, 423. Tarini Charan Bose v. Debnrayan Mistri, 641. Tarleton v. McGawley, 236. Tarry v. Ashton, 525, 661. Tasmania, The, 481. Tattan v. G. W. Rail. Co., 541. Taylor v. Asliton, 289, 294. V. Greenhaigh, 81. V. M. S. & I>. RaU. Co., 544, 546, 551, 553. V. Newman, 174. Terry v. Hutchinson, 232. Tharsis Sulphur Co. v. Loftus, 120. Theyer v. Purnell, 500. Thomas p. Bradbury, Agnow &, Co., 257, 258. ■ V. Quartermaine, 104, 166, 168, 522, 5S1, 583, 584. V. Sorrell, 382. V. Williams, 194. V. Winchester, 509, 510, 511, 555, 659. Thompson v. Brighton, Mayor of, 198. i\ Gibson, 435. V. London County Council, 194. . 1. Ross, 231, 232. Thomson v. Clanmorris, Lord, 209. Thorley's Cattle Food Co. r. Massam, 194, 311. Thorogood !■. Bryan, 473. Thorpe v. Brumfitt, 419. Thrussell v. Handyside, 167, 170. Tidman v. Ainslie, 256. Tillett e. Ward, 502, 604. Timothy i. Simpson, 222. Tipping r. St. Helen's Smelting Co., 414. Toal (', North British Rail. Co., 453, 482. Tobin V. Reg., 85. Tod-lleatly v. Benham, 412. Todd V. Flight, 436, 649. Tollit V. Sherstone, 555. Tompson v. Dashwood, 251. Toronto .Power Co. v. Paskwan, 105. Tozeland v. West Ham Union, 106. Tozer v. Child, 127, 338. Traill v. Baring, 293. d xlii INDEX OF CASES. Tuberville v. Savage, 216. V. Stampe, 79, 504, 658. Tucker v. Linger, 369. Tuff V. Warman, 464, 469, 479, 653. Tullidge V. Wade, 190, 229. Tunney v. M. RaU. Co., 101, 607. Turbervil v. Stamp, 79, 504, 658. Tumor v. Ambler, 316. V. Green, 295. V. Ringwood Highway Board, 407, 411. V. S. P. & D. Kail. Co., 607. v. Stallibrass, 642, 544. Twomley v. Central Park E. R. Co., 485. Twy cross v. Grant, 63, 66. Tyrringham's Case, 396. U. Udell V. Atherton, 284. Underwood v. Plewson, 144. Underwriter, The, 156, 157. Union Credit Bank v. Mersey Docks and Harbour Co., 361, 371. Union Credit Bank v. N. & S. Wales Bank, 364. Union Pacific Kail. i'. McDonald, 43. Union S. S. Co. -y. Claridge, 83. UsUl V. Hales, 274. V. Vacher & Sons v. London Society of Compositors, 98. Valentine v. Hyde, 330. Vallancei;. PaUe, 198. Vandenburgh v. Truax, 36, 603. Vaspor V. Edwards, 396, 402. Vaughan v. Menlove, 443, 657. V. Taff Vale Kail. Co., 133, 498, 499, 506, 667. Vegelahn v. Guntner, 149, 326. Vernon v. Keys, 287. Vicars v. WilcOcks, 49, 241, 334. Victorian Rail. Commissioners v. Coultas, 51. Vinayab Dis^kar v. B&i Itehd, 610. Vfranna v. Nag^yyah, 605. Vithobd Malh^ri v. Corfipld, 609. Vizetelly v. Mudie's Selrct Library, Ltd., 251. W. Waite V. N. E. Kail. Co., 476, 654. Wakelin v. L. & S. W. Kail. Co., 447, 449, 456, 471, 652. Wakeman v. Robinson, 146. Waldock V. Winfield, 83. Walker v. Brewster, 417. V. Cronin, 332. V. Needham, 574. (Peter) and Son r. Hodg- son, 261 263. Wallis V. Harrison, 382. Walsh V. Whiteley, 168, 681. Walter v. Selfe, 413, 646. Walters v. Green, 194. V. W. H. Smith & Son, 222. Wandsworth Board of Works v. United Telephone Co., 361. Wanless v. N. E. EaU. Co., 453, 466, 651. 655. Ward V. Hobbs, 27. V. Lloyd, 203. Warlow I. Harrison, 291. Warner v. Riddiford, 220. Warr (Frank) & Co. v. L. C. C, 382. Warren v. Brown, 415, 421. Warwick Tyre Co. v. New Motor, &c. Co., 316. Washington R. R. Co. v. McDade, 486. Wason V. Walter, 271, 630. Watkin v. Hall, 255, 629. Watkins v. Cottell, 541. Watt V. Watt, 184. Weare, Re, 246. Weaver v. Ward, 144. Webb V. Beavan, 243. V. Bird, 419. Weblin v. Ballard, 681, 584. Wcdnesbury Corporation r. Lodge Holes Colliery Co., 189. Weems v. Mathieson, 105. Weinberger v. Inglis, 126. Weir V. Bell, 284. Weld-Blundell v. Wol=eley, 3.58. Weldon v. De Bathe, 58. ('. Neal, 210. V. Winslow, 57. Welfare v. L. & B. Rail. Co., 527. Wellock V. Constantine, 202. Wells V. Abrahams, 202. V. Smith, 303. Weiiman r. A.sh, 261. Wennhak v. Morgan, 191, 251. INDEX OF CASES. xliii West V. Nibbs, 395, 401. V. Small-wood, 223. Western Bank of Scotland v. Addie, 97, 289, 308. Wost Ham Central Charity Board V. E. London Waterworks Co. 357. West Leigh Colliery Co. v. Tun- nieliffe tV' Hampson, 187. West London Commercial Bank r. Kitson, 287. West Riding Union Bankina; Co. 305. Whalley v. L. & Y. Rail. Co., 176. Whatman v. Pearson, 88, C07. Whitbourne v. Williams, 231. White < . France, 517. V. Jameson, 436, 649. V. Mellin, 312. V. Spettigue, 201. V. Steadman, 500, 502, 519. & Co. V. Credit Reform Association, 280. Wliiteley v. Hilt, 368. V. Pepper, 527. Whitfield V. S. E. Rail. C-o., 59. Whitham v. Kershaw, 192, 196, 662. Whitmorea v. Stanford, 497. Whittaker, Ex parte, 286. V. Scarborough Post Newspaper Co., 280. Whitwham v. Westminster Brym- bo Coal and Col^e Co., 189. Wicks V. Fentham, 317. Wiffen V. Bailey, 317. Wiggett V. Fox, 105. Wigsell V. School for Indicfpnt Blind, 196. Wilbraham v. Snow, 359. Wild V. Waygood, 83, 5S2. Wilkes V. Hungerford Market Co., 408, 646. Wilkins v. Day, 409. Wilkins (Fred.) & Bros. v. Weaver, 230. Wilkinson v. Downton, 50. ,j. Haygarth, 372. WiUetts V. Watt, 581. Williams v. Birmingham Battery and Metal Co., 104, 168. V. East India Co., 658. ,.. a. W. Rail. Co., 41, 452. Williams v. Jones, 90. V. Smith, 275. Williamson v. Allison, 286, 291, 540. V. Freer, 249, 634. Willis V. Maolachlan, 118. V. Hodgson's Kingston Brewery Co., 526. Wilson V. Barker, 378. V. McLaughlin, 363. r. Merry, 101, 104. V. Newberry, 497. ". Reed, 185. t'. Tumrnan, 76. ).. Waddell, 492. Wing V. London (len. Omnibus Co., 451. Winkfield, The, 374. Winsmore v. Greenbank, 230. Winter v. Brookwell, 385. Winterbottom v. Derby, Lord, 408, 645. V. Wright, 521, 554, 5.5;). Wood V. Conway Corporation, 430. r. Durham, 280. V. Lcadbitter, 382, 383, 384, 385, 386. V. Waud, 413, 648. V. Woad, 127. Woodhouse v. Walker, 65, 355. Woodley v. Metr. Dist. Rail. Co., 166. Woodward v. Walton, 229. Wootton V. Sievier, 263. Worth V. Gilling, 503. Wren v. Weild, 311. Wright V. Ijconard, 58. V. Ramscot, 353. Y. Yarborough v. Bank of England, 59. Yarmouth v. France, 166, 167, 522, 581, 583, 587. Yates V. Jack, 421. Yewens v. Noalies, 80. Young V. Hoffmann Manufactur- ing Co., 101, 104, 105. V. Ladiei' Imperial Club, 127. ( xliv ) YEAR BOOKS CITED. — ■* — PAfiE 22 yVas, pi. 48 396 100,-67 59 ]02, — 70 235 27 131, — IT 217 30 177,— 19 238 Kdw. ir. 381 21fl 7 IMw. ]IT. 65,-67 151 48 20,— 8 ...: 376 2 Hen. IV. 18,— 5 504,54] n 1-2,— 2 234 47,-21 151,015 75,-16 400 19 Hen. VI. 33,— OS 502 45,-94 227,376 66,-10 02 21 20,— 9 235 22 14,-23 151 31 234 32i 234 33 27,-12 350,401 36 20i,— 8 217 37 37,-26 399 39 7,-12 384 5 Edw. IV. (Lonvere regarded in this country as not belonging to the ordinary jurisdiction of temporal courts; marital and parental autho- rityv were incidentally recognised, but matrimony and matrimonial causes were "spiritual matters." We shall not find laid down in our authorities any such broad principles as are above indicated; nor is there anything surprising in this. The ancient common law knew nothing of large classifications founded on the substantive nature of what was in issue. There were forms of action with their appropriate writs and process, and authorities and traditions (c) The class of cases in which us here. It is considered in the last the substance of the duty arises out chapter of this book, of contract is too peculiar to detain 1(2) 4 THE NATURE OF TORT IN GENERAL. whence it was known, or in theory was capable of beingf known, whether any given set of facts would fit into any and which of these forms. In early times it was the existence of a remedy in the King's Court, not the failure to provide a remedy for an apparent wrong, that was exceptional. No doubt the forms of action fell, in a manner, into natural classes or groups. But no attempt was made to discover or apply any general principle of arrangement. In modem times, that is to say, since the Restoration, we find a certain rough classification tending to prevail {d) . It is assumed, rather than distinctly asserted or established, that actions maintainable in a court of common law must be either actions of contract or actions of tort. This divisioa is exclusive of the real actions for the recovery of land, already becoming obsolete in the seventeenth century, and finally abolished by the Common Law Procedure Act, with which we need not concern ourselves: in the old technical terms, it is, or was, a division of personal actions only. Thus torts are distin- guished from one important class of causes of action; and the distinction is practical and reasonable, for the increased importance of contract in modem times has made it possible to set questions arising out of contracts against those not arising out of contracts with a fair appearance of equality. Torts, on the other haftd, are distinguished in the modern law from criminal offences. In the medieval period the procedure whBtfeby redress was obtained for many of the injuries now classified as torts bore plain traces of a criminal or quasi-criminal character, the defendant against whom judgment passed being liable not only to compensate the plaintiff, but to pay a fine to the king. Public and private law were, in truth, but imperfectly 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 (iT) Appendix A. LIMITS OF TERMINOLOGY. 5 rise to a civil action of tort and to a criminal prosecution, or to the one or the other at the injured party's option; but the civil suit and the criminal prosecution belong to different jurisdictions, and are guided by different rules of procedure. Torts belong to the subject-matter of Comlnon Pleas as dis- tinguished 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. These lie wholly outside the common law forms of action and (all classifications founded upon them. According to the common ' understanding of words, breach of trust is a wrong, adultery is a wrong, refusal to pay a just 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 be pronounced against the unfaithful' wife or husband; and payment of reasonable salvage may he 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 settlement of matrimonial causes between husband and wife to the law formerly peculiar to the King's Ecclesiastical Courts; and the adjustment of salvage olaimis to the law formerly peculiar to the Admiral's Court. These things being un- kno\vli to the old common law, there could be no question of tort in the technical sense. It is to be observed, however, that in every such case there is a real distinction from the torts known to the Common Law. The law of trusts is concerned with duties created by the will of the parties, and the law of husband and wife, 6 THE NATURE OF TORT IN GENERAL. as we have said, with a strictly personal relation. The law of salvage belongs by its character to the department of what is now called quasi-contract or constructive contract, where duties analogous to those of a promisor are imposed, for reasons of convenience and equity, on a person who has not made any promise. The general principle that one must not do unlawful harm to one's neighbour will of course not tell us in detail what harm is unlawful. It may now be useful, accordingly, to examine what are the leading headb of the English law of torts as commonly received. The civil Wrongs for which remedies are provided by the common law of England, or by statutes creating new rights of action under the same jurisdiction, are capable of a threefold division according to their scope and effects. There are wrongs affecting a man in the safety and freedom of his o-wn person, in honour 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 rights of possession and property, or rights in the nature of property. There are yet others which may affect, as the case happens, person or property, either or both. We may exhibit this division by arranging the familiar and typical species of torts in groups, saying nothing for the present as to the various possible grounds of justification or excuse . Group A. Personal Wrongs. 1. Wrongs affecting safety and freedom of the person: Assault, battery, false imprisonment. CLASSIFICATION OK TORTS. 7 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, dander of title, fraudWent competition by colourable imitation, &c. Malicious* prosecution . Extortion or injury by intimidation of third! persons, procurement of wrongful acts, con- spiracy, &c. Group B. Wrongs to Possession and Property. 1. Trespass: (a) to land. (b) to goods. Conversion and unnamed wrongs ejusdem generis. Disturbance of easements, &e. 2. Interference with rights analogous to property, such as private franchises, patents, copyrights, trade- marks. Group 0. Wrongs to Person, Estate, and Property generally. 1. Nuisance. 2. Negligence. 3. Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous things, and to the exercise of certain public callings. This kind of liability results, as 'will be seen hereafter, partly from ancient rules of the common la.w of which the origin is still doubtful, partly from the modern development of the law of negligence. K THE NATURK OF TORT IN GENERAL. The general rule of law that a master is answerable for the acts and defaults of his servants in the course of theif employment operates to extend liability under all these heads in various degrees. Group 0. would be insignificant with- out it. 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 (e) . 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 dis- tinctive 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 \vith reckless indifference to what may befall by reason of it. Either there is deliberate injury, or there is something like the self-seeking indulgence of passion, in contempt of other men's rights and dignity, which the Greeks called t/'/S^ir. 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, evil-speaking, and deceit, 'have been denounced, apart from any secular legal prohibition, by righteous men in all ages. If any one desires to be satisfied of this, he may open Homer or the Psalter at randota. 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 (e) In some cases the really which it was often necessary to effectual remedies were adminis- establish in an action at law before tared by the Court of Chancery, but the Court of Chancery would only as auxiliary to the legal right, interfere. MORAL KLEMENTS. 9 offences as well as civil wrongB. It is a common border- land of criminal and civil, public and private law. In Group B. this element is at first sight absent, or at any 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 eject- ment, which is a special form) of trespass — has for centuries been a common and convenient method of trying' an honestly disputed claim of right. Again, it matters not whether actual harm is done. "By the law's of England, every invasion of private property, be it ever so minute, is a tres- pass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to ansiwcr for bruisingi the grass and even treading upon the soil"(/). Nor is this all; for dealing with aiiother man's goods without law- ful 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 {ff) . 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 com- petent, and leave it with him to be cleaned. The task is beyond him, or an incompetent hand is employed on ij;, and the watch is spoilt in the attempt to restore it. Without question the owner may hold me liable. In one word,, the duty which the law of Efigiland enforces is an absolute duty, I (/) Per Cur. Entick v. Carving- (g) See Hollims v. Fowler, L. R. ton, 19 St. Tr. 1066. 7 H. L. 757, 44 L. J. Q! B. 169. 10 TITE NATURE OF TORT IN OEKKRAL. not to meddle without lawful authority with land or gioods that belong to others. And the same principle applies to rights which, though not" exactly property, are analogous tO' it. There are exceptions, but the burden of proof lies on those who claim their benefit. The law, therefore, is stricter, on the face of things, than morality. There may^ in particular circumstances, be doubt what is mine and what is my neighbour's; but the law expects me at my peril to- know what is not mine in every case. To some extent this must obviously be so, lest wrong-doers should go soot-free- under cover of pretended ignorance. It may seem unreason- able, at first sight, to expect a man to know at his peril Avhat things are his neighbour's; but it is not evidently unreason- able to expect him to know what is his own, and this is only the statement of the same rule from the other side. The- prominence of the rule in the Common Law, and in this- department of it more than another, depends on historical causes to be mentioned presently. In Group C. the acts or omissions complained of have a kind of intermediate character. They are not as a rule wilfully or wantonly harmful; but neither are they morally indifferent, save in a few extreme cases under the third head. The party has for his o-wn purposes done acts, or brought about a state of things, or brought other people into a situq.- tion, 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 com'mon sense and competence would in his place foresee, will scarcely be held blaimelesa by the nioral judgment of his fellows. Legal liability for negligence and similar wrongs corresponds approximately to the moral censure on this kind of default. The commission LrABiLITY FOR OMISi^IONS. 11 of something in itself forbidden by the law, Or the omissioa of a positive and specific legal duty though without anjr intention to cause harm, can be and is, at best, not more favourably considered than imprudence if harm happens tO' come of it; and here too morality will not dissent. In some conditions, indeed, and for special reasons which must he- considered later, the legal duty goes beyond the moral one. There are cases of this class in which liability cannot be- avoided, even by proof that the utm'ost diligence in the way of precaution has in fact been used, and yet the party liable has done nothing' which the law condemns {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 inankind, we deem ourselves entitled at the hands of our fellow-men. There is a point, though not an easily defined one, where such shortcoming gives rise even to criminal liability, as in the case of manslaughter by negligence. We have, then, three main divisions of the law of torts .^ In one of them, which may be said to have a quasi-driminal 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 manifestly so. The apparent absence of intelligible relation to moral con- ceptions in the second group may 'well seem at first sight to stand in the way of ascribing rational unity to our law of torts as a whole . A right of property is interfered with " at the peril of the ■person interfering with it, and whether his interference b& for his own use cfr'that of anybody else" (i). (A) How far such a doctrine can the House of Lords: Rylands v. be theoretically ol- historically Fletcher (1868), L. R. 3 H. L. justified is not ah open question 330, 37 L. J. Ex. 161. iot English courts of justice, for (i) LordO'Hagan, L. E. 7 H. L. it has been explicitly affirmed by at page 799. 12 THE NATURE OF TORT. IN GENERAL. And whether the interference be wilful, or reckless, or innocent but imprudent, or innocent without imprudence, •the legal consequences and the form: of the remedy are for English justice the same. This may appear inelegant if not unjust. The truth is that we have here one of the historical ■curiosities of English law. Formerly there was a clear dis- tinction in the forms of procedure (the only evidence we have for much of the older theory of the law) between the simple assertion or vindication of title and claims for redress against specific injuries. It is true that the same facts would •often, at the choice of the party wronged, 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. For assertion of title to land there was the Kvrit of right ; and the Writ of debt, with its somewhat later variety, the writ of detinue, asserted a plaintiff's title to money or goods in a closely corresponding form (fc). In- juries to person or property, on the other hand, were matter for the writ of trespass and certain other analogous writs, and (from the thirteenth century onwards) the later and more ■comprehensive writ of trespass on the case (l). In the former (S) The writ of right (Glanvill, feoerit, summone eiun," &o. The Bk. i. c. 6) runs thus: " Eex vice- writs of covenant and account, •coifiiti saliitem: Praecipe A. quod which wei'e developed later^ also sine dilatione reddat B. unam contain the characteristic words hidam terrae in villa ilia, unde ivsie et sine dilatione. idem B. queritur quod pracdictus (Z) Blackstoneiii. 122; F. N. B. A. ei deforceat: et nisi fecerit, 92. The mark of this class of sumnione eum," &c. The writ of actions is the conclusion of the writ •debt (Bk. x. c. 2) thus: "Eex contra pacem. Writs of assize, in- viceoomiti salutem: Praeci])e N. eluding the assize of nuisance did quod iuste et sine dilatione reddat not so conclude, but shovf analoo^ies R. centum marcas quas ei debet, of form to the writ of trespass in ut dicit, et unde queritur quod ipse other respects. Actions on the case ei iniuste deforceat. Et nisi might bo founded on other writa J'ORMS OF ACTION. ' la 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 pri- vate vengeance (-m). Now the writs of restitution, as we may collectively call them, were associated with many cum- brous and archaic points of proced'ure, exposing a plaintiff to incalculable and irrational risk; while th6 operation of the writs of penal redress was by comparison simple and expeditious. Thus the interest of suitors led to a steady encroachment of the writ of trespass and its kind upon the- writ of right and its kind. Not only was the writ of right first thrust into the background by the various writs of assize- and entry — ^forms of possessory real action which are a soi^t of link between the writ of right and the writ of trespass— and then superseded by the action of ejectment, in form a pure .action of trespass; but in like manner the action of detinue was largely supplanted by trover, and debt by assumpsit, both of these new'-fashioned remedies being^ varieties of action on the case (n) . In this way the dis- tinction between proceedings taken on a disputed claim of right, and those taken for the redress of injuries where the right was assumed not to be in dispute, became quite obliterated. The forms of action were the sole embodiment of such legal theory as existed; and therefore, as the distinc- beaides that of trespass^ e.g., de- Book of Exodus, is no real excep- ceit, which contributed largely to tion. the formation of the action of as- („) ]?or the advantages of suing snmpsit. The writ of trespass jn case over the older forms of" itself is by no means one of tlie actions, see Blackstone, iii. 153, most ancient. See F. W. Maitland 155. xhe reason given at p. 152- in Harv. Law Rev. iii. 217-219. for the wager of law (as to which (m) Not retaliation. Early Ger- see Co. litt. 295a) being allowed manic law shows no trace of re- in debt and detinue is some one's taliation in the strict sense. A idle guess, due to mere ignorance- passage in the introduction to of the earlier history. Alfred's laws,, copied from tlie 14 THE NATURE OF TORT IN GENERAL. tion of remedies was lost, the distinction between the rights which they protected was lost also. By a series of shifts and devices introduced into legal practice fop 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 traditional habit of mind of English lawyers, to the law of torts. In a rude state pf society the desire of vengeanpe is measured by the harm' actually suffered and not by any ■jconsideration of the actor's intention; hence the archaic la^y ■of injuries is a law of absolute liability for the direct conse- quences of a man's acts, tempered only by partial exceptions in the hardest case?. These archaic ideas of absolute lia- bility made it ea^y to use the law of wrongful injuries for trying what were really questions of absolute right; and that practice again tended to the preservation of these same archaic ideas in other departments of the law. It will be •observed that in our early forms of action contract, as such, has no place at all (o); an additional proof of the relatively modern character both of the importance of contract in prac- tical life, and of the growth of the corresponding general notion. We are now independent of forms of action. Trespass -and trover have become historical landmarks, and the ques- tion whether detinue is, or was, an action founded on con- tract or on tort (if the foregoing statement of the history be correct, it was really neither) survives only to raise difficulties in applying certain provisions of the County Courts Act as to the scale of costs in the Superior Courts (p) . It would seem, therefore, that a rational exposition of the law of torts (o) Except what may be implied tract: F. N. B. 119; Blackstone, from the technical rule that tho iii. 156. TTord debet was proper only in an (p) Bryant v. Herbert (1878), 3 action for a sum of money between C. P. Div. 389, il L. J. O. P. 670. ihe original parties to the con- ANOMALIES OP TRESPASS. 15 IS free to get rid of the extraneous matter brought in, as- we have shown, by the practical exigency, of conditions that no longer exist. At the same time a certain amount of excuse may be made on rational grouad^ for the place and function of the law of trespass to property in the English system. A man can but seldom go by pure unwitting misadVenture beyond the limits of his own dominion. Either he knows he is not within his legal right, or he takes no heed, or he knows there is a doubt as to his right, but, for causes deemed by him sufficient, he is content to abide (or perhaps intends to jrovoke) a legal contest by which the doubt may be resolved. In none of these cases can he complain with moral justice of "being held to answer for his act. If not wilfully or wantonly injurious, it is done with some want of due circumspection, ■or else it involves the conscious acceptance of a risk. A form •of procedure which attempted to distinguish between these possible cases in detail would for practical purposes hardly be tolerable. Exceptional cases do occur, and may be of real hardship . One can only say that they are thought too excep- tional to count in determining the general rulle 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 . We may now find it interesting to compare the Roman system with our own. There we find strongly marked the •distinction between restitution and penalty, which was appa- rent in old forms of action, but became obsolete in the Tnanner above shown. Dr. Moyle (g') 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 -(9) In his edition of the Institutes, note to Bk. iv. tit. 1, p. 510, 4th ed. 16 THE NATURE OF TORT IN GENERAL. 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; the;if 'otumys involve dolus or ailpa; and the remedies by which they are redressed are \penal." The Latin dolus, as a technical term, is not properly rendered by " fraud " in English; its meaning is much wider and answers to what we generally signify by " unlawful intention." Culpa is exactly what we mean by "negli- gence," the falling short of that care and circumspection 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 law- yers 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 Imuch more attention at the hands of English lawyers than it has received. It is to be observed' that the Roman theory was built up on a foundation of archaic materials by no means unlike our own; the compensa- tion of the civilized law standi instead of a primitive retalia- tion which was still recognized by the law of the TwelVe ■Tables. If then we leave aside the English treatment of rights of property as being accounted for by peculiar his- torical causes, we find that the Roman conception of delict agrees very well with the conception that appears really to. DOLUS AND CULPA. 17 underlie the English law of tort. Liability for delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or wanton disregard of what is due to them (dohts), or of a failure to observe due care and caution which has similar though not intended or expected consequences (culpa). In the Common Law we have, apart from the law of trespass, 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 men- tioned under Group O. of our outline. Such is the case of the landowner who keeps on his land an artificial reservoir of water, if the reservoir bursts and floods the lands of his neighbours. Not that it was wrong of him to have a reser- voir there, but the law says he must do so at his own risk (r) . This kind of liability, too, has its parallel in Roman law, and the obligation is said to be not ex delicto, since true delict involves either dolus or culpa, but quasi ex delicto(s). Whether to avoid the difficulty of proving negligence, or in order to sharpen men's precaution in hazardous matters by not even allowing them, when harm is once done, to prove that they have been diligent, the mere fact of the mischief happening gives birth to the obligation. In the cases of carriers and innkeepers a similar liability is a very ancient part of our law. Whatever the original reason of it may have been a.s matter of history, we may be sure that it was some- thing quite unlike the reasons of policy governing the modem class of cases of which Rykmds v. Fletcher {t) is the type and leading authority; by such reasons, nevertheless, the (r) Rylands v. Fletcher, L. R. 3 that the application of the term in H. L. 330, 37 L. J. Ex. 161. the Institutes is not quite oon- (.«) Austin's perverse and unin- sistent or complete. See Dr. telligent criticism of this perfectly Moyle's notes on I. iv. 5. rational terminology has been (0 L. E. 3 H. L. 330. See treated with far more resp«ct than Ch. Xll. below, it deserves. It is true, howe'ver, P. 18 THE NATURE OF TORT IN GENERAL. rules must be defended as part of the modern law, if they can be defended at all. The ways in which a rig-ht of action for a tort can arise in our law may be summed up- in the following manner (m) : — Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or under- taken by contract) which is related in one of the following ways to harm (including interference with an absolute right, whether there be measurable actual damage or not), suffered' by a determinate person: — (a) It may be an act which, without lawful 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 omis- sion of specific legal duty, which causes harm not intended by the person so acting or omitting. (o) It may be an act violating an absolute right (espe- cially rights'of possession or property), and treated OS wrongful without regard to the actor's intention or knowledge. This, as we have seen, is an arti- ficial extension of the general conceptions which are common to English and Roman law. (d) It may be an act or omission causing harm which the person so acting or omitting did ndt intend to cause, but might and should with due diligence have fore- seen and prevented. (e) It may, in special cases, consist merely in not avoid- ing 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 (a) It may be worth while to analytical classification of the point out that this is not intended grounds of liability in tort. as a definition of tort, but as an RELATION OF WRONG TO DAMAGE. 19 some one's negligence. In some positions a man becomes, so to speak, an insurer to the public against a' certain risk, in others he warrants only that all has been done for safety, that reasonable care can 'do. Connected in principle with these 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. It wiU now be proper, before enumerating the several classes of torts, to investigate first the common principles of liability, and then the common principles of imtnunity which are known as matter of justification and excuse. We shall then proceed to the particular branches of the subject, together with the conditions and exceptions which specially belong to them. Prof. Wigmore's Arrangement. — Prof. Wigmore of the North-Western University, in his learned and instructive collection of Select Cases on the Law of Torts (Boston, Mass., 1912), has arranged his matter under the three gene- ral heads of " The Damage Element" (what loss or injury is actionable), "The Causation Element" (who is answer- able, including remoteness of damage), and " The Excuse Element " (what is ground of justification or excuse for an apparent wrong). This is an exhaustive analysis and not open to censure in form; it brings to light real analogies that otherwise might escape notice; but it applies to the ultimate reasons of the law and not to the facts on which the law pro- ceeds. For a practical treatise it seems the more convenient way to follow the usual lines of classification according to the kinds of events and acts from which causes of action arise. 2(2) ( 20 ) CHAPTEE II. PRINCIPLES OF LIABILITY. Not many years ago it was difficult to find any definite authority for stating as a general proposition of English law that it is a wrong to do wilful harm to one's neighbour without lawful justification or excuse. Neither is there any express authority for the general proposition that men must perform their contracts. Both principles are in this gene- rality of form or conception modern, and there was a time when neither was true. Law begins not with authentic general principles, but with enumeration of particular remedies. There is no law of contracts in the modern lawyer's sense, only a list of certain kinds of agreements which may be enforced. Neither is there any law of delicts, but only a list of certain kinds of injury which have certain penalties .assigned to them. Thus in the Anglo-Saxon and other early 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 out- side the specified forms of obligation and modes of proof are (a) In Gaius Hi. 223, 224, the modern than the English law o? contrast between the ancient law of the Year-Books. Perhaps tie fixed penalties and the modern law historical contrast holds only in of damages assessed by judicial Europe: see a note in L. Q. B. is. authority is clearly shown. Tha 97, showing that among the student will remember that, as re- Kaohins on the Burmese frontier gards the stage of developmiint claims for unliquidated damages attained, the law of Justinian, and are not only known but freely often that of Gaius, is far more assignable. ALTERUM NON LAEDERE. 21 incapable of enforcement; wkatever injuries are not in the table of compensation must go withiaut legal redress. The phrase damnum sine iniuria, which for t"he 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. Such is not the modern way of regarding legal duties or remedies. It is not only certain favoured kinds of agree- ment that ai'e protected, but all agreements that satisfy certain general conditions are valid and binding, subject to exceptions which ai-e themselves assignable to general prin- ciples of justice and policy. So we can be no longer satisfied in the region of tort with a mere enumeration of actionable injuries. The whole modern law of negligence, with its many developments, enforces the duty of fellow-citizens to observe in varying circumstances an appropriate measure of prudence to avoid causing harm to one another. The situa- tions in which we are under no such duty appear at this day not as normal but as exceptional. A man canriot keep shop or walk into the street without being entitled to expect and bound to practise observance in this kind, as we shall more fully see hereafter. If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm, subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is con- cerned—namely, to abstain from wilful injury, to respect the property of others, and to use d'ue diligence to avoid! causing harm to others— are all alike of a comprehensive nature. As our law of contract has been generalized by the doctrine of consideration and the action of assumpsit, so has our law of civil wrongs by the wide and various appli- 22 PRINCIPLES OF LIABILITY. cations of actions on the case. It is submitted, moreover, that any attempt, at this day, to maintain a narrower con- ception lof civil duty can lead only to interminable difficulties. In fact there are dicta of the late Lord Bowen's which appear fully to recognise the doctrine here contemded for. He said, as Lord Justice, in 1892: " At Common Law there ■was a cause of action whenever one person did damage to another, wilfully and "intentionally, and without just cause or excuse (6)." The actual decision was in very special matter and on the construction of a statute, but there is nothing in the context to qualify the generality of this opinion, and the fact that a very learned and accomplished judge rather went out of his way to express it makes it seem, if anything, the more deliberate. Nor does the mere fact that a wilful injury does not fall within the four corners of some known form' of action seem to be included in any natural meaning of "just cause or excuse." A similar dictum in the same judge's well known judgiment in Mogul Stemnship Co. 'v. McGr&gor (c) is in terms limited to damage to a man in his property or trade. But first, these are the only material cases, for the duties of not wilfully harming our neighbours in person or reputation are admitted to be quite general; and secondly, the Supreme Court of the United States has thought the last cited dictum sufficient warrant for an unqualified declaration. The opinion was thus expressed by Holmes J. in 1901: "It has been considered that, prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. {Mogul Steamship Company v. McGregor, 23 Q. B. D. (b) Skinner^ Co. y. Shew i- Co. (c)(1889) 23 Q. B. Div. at [1893] 1 Ch. 413, 422, 62 L. J. Oh. p. 613. 196. MOTIVK AS ELEMENT OF LIABILITY. 23 598, 613.) If this is the ooi-rect mode of approach it is obvious that justifications may vary in extent according to the principles of policy upon which they are founded, and while some, for instance, at common law, those affecting the use of land, are absolute . . . others may depend upon the end for which the act is done. . . . It is no sufficient answer to this line of thought that motives are not action- able, and that the standards of the law are external . That is true in determining what a man is bound to foresee, but not necessarily in determining the extent to which he can justify harm which he has foreseen {Quinn v. Leathern [1901] A. C. 495, 52ij"(d). Some learned persons here, however, still think otherwise (e). If there is a general duty not to do wilful harm, it would seem on principle that the law] need not regard the motive, in the sense of personal disposition, from which such an act proceeds, though the discretion of a judge as to costs, or a jury as to damages, may do so. Harm done without excuse cannot be made more vnrongf ul than it is by the addition of bad faith or personal ill -will, noT made lawful by its absence. Again, it is a settled general rule in our law that when an act is done in the exercise of a common right, the motive is immaterial (/) . Such an act may be discreet, courteous, or neighbourly, or not, tut calling it malicious will not make it unlawful. The use of such terms as "malice" and "maliciously" appears therefore more likely to perplex the (<0 Cur. per Holmes J. Ai/cens some act intentionally does harm to Wisconsin, 195 U. S. 194, 204. another is pnitui facie liable to {e) The late A. Cohen K.O., in him hlsmemov^n^Mm on Allen y. Flood Q) Bradford Corporation v. annexed to th« Report of the Eoyal Pickles [1895] A. C. 587, 64 L. J. Commission on Trade Disputes Ch. 759; Allen v. Flood [1898] (1906, Cd. 2825, pp. 24-30), de- A. O. 1, 67 L. J. Q. B. 119. For nied the existence of any " general American authority, see Fiero, 37— rule of law that a person who by 40. 24 PEtNCIPLES OF LIABILITY. law and hinder the study of its true principles than to ad- vance justice in any substantial manner. Unluckily the terms liave been freely employed, and without any clear or constant meaning, and this has been the cause of great con- fusion which is not yet wholly removed {g') . Recent autho- rity has made it clear, however, that the consideration of personal motive as a determining element of liability is at any rate exceptional. "Malice" in that sense is material chiefly so far as it may defeat a claim to immunity iDased on " privilege," which assumes that the person claiming it has acted in good faith (A). For certain purposes and on certain occasions, not many, a somewhat extensive liberty of interference with individual rights and convenience is deliberately allowed in the public interest. Being so allowed, it is in the nature of a special privilege — which indeed it is regularly called in one class of cases — ^rather than of a commton right, and it is subject to the condition of being exercised in good faith and not abused for ends of personal enmity. Such abuse is called " malice " or " express malice," and deprives the act of justification (i). The words "malice," "malicious," and "maliciously" were formerly used in pleading, and thence in forensic and judicial language, in many places where they were super- fluous. This usage has been sometimes explained away by saying that malice means only the want of excuse for an unlawful act wilfully done; sometimes it has been frankly (g) See the late W. F. Craies' rather to deprecate a definition, learned articles on "Malice" {h) See, e.g., per Lord Bramp- and "Malicious Prosecution" in ton in QuinH v. Leathern [1901] Bnoycl. Laws of England. The A. O. at p. 524, 70 L. J. P. 0. 76. observations of Collins, M. E., in (t) Cp. the dicta of Lord Her- Read^. Friendly Society of Opera- schell. Lord Watson, and LoriJ tweiS7.o«emnso«s [1902J 2 K.. B. at Davey, in Allen v. Flood [1900] p. 739, 71 L. J. K. B. 994, seem A. C. 1, 93, 125, 172. SPECIFIC DUTIES. 25 discredited. We are not here concerned with the fortune of the same words in criminal law, whei'e the disregard of their ordinary meaning has been extreme; but the comtnon law doctrine of "malice aforethought" in murder and the statu- tory offence of "malicious damage" have no doubt contri- buted to the general obsourity of the subject. Very little light is to be obtained from the history of the Latin word malitia. Claisisiaai usage, oftener than not, makes it import fraud or underhand contrivance as well as ill-will; but sometimes it means vice or wickedness in general, and in the Vulgate we read Suffldt diei malitia siuz. The origi- nal intention of its use as a legal term was probably to exclude reference to acts which were not wilful at all, or ^vhich were honestly done under a claim of -right or in ignorance of the facts by reason of which the act was unlawful (fe) . In the result, the incautious ,adoption of popu- lar langusige led to the worst kind of technicality. 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 commonest case), the justice and necessity of this rule are naanifest without further com'ment. 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 (k) Cp. Pollock; and Maitland, B,. E. L. ii. 467, (46Q, .2nd ed.)., 26 PKINCIPLES OF LIABILITY. law is disobeyed; at any rate a court of law cannot admit discussion on that point; and the defaulter must take the consequences. The old-fashioned distinction between mala prohibita and mala in se is long since exploded. The simple omission, after notice, to perform a legal duty, may be a wilful offence within the meaning of a penal statute (I) . As a matter of general policy, there are so many temptations to neglect public duties of all kind's for the sake of private interest that the addition of this quasi-penal sanction as a motive to their observance appears to be no bad thing. Many public duties, however, axe 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 provi- sions may be so framed as to exclude expressly, or by impli- cation, lany right of private suit(?n). The provision of a specific remedy for the breach of duties created by the Act is generally held to exclude other remedies {n) . Also there is no cause of action where the damage complained of "is something totally apart from the object of the Act of Par- liament," as being evidently outside the mischiefs which it was intended to prevent. What the Legislature has de- clared to be wrongful for a definite purpose cannot be therefore treated as wrongful for another and different purpose (o). (J) Gully V. Smith (1883) ]2 Urban Council [1898] A. C. 387, Q. B. D. 121, 53 L. J. M. C. 35. 394,67 L. J. Q. B. 635; op. John- (m) Atkinson v. Newcastle ston v. Consumers' Gas Co. of Watervxyi'lcs Co. (1877) 2 Ex. Div. Toronto [1898J A. O. 447, 67 L. J. 441, 46 L. J. Ex. 775. P. O. 33. (») Pasmore v. Oswaldtwistle (o) Gorris v. Scott (1874) L. E. DILIGENCE AND COMPETENCE. 27' As to the duty of respecting' proprietary rights, we have already mentioned that it is absolute. Further illustration is reserved for the special treatment of that division of the subject. Then we have the general duty of using due care and caution. What is due care and caution in given circum- stances has to be worked out under the head of negligence. Here we may say that, generally speaking, the standard' of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence. Moreover, if the party has taken in hand the conduct of anything requiring special skill and knowledge, we require of him a competent measure of the skill and knowledge usually found in persons who undertake such matters . And this is hardly an addition tq the general rule; for a man of common sense knows wherein he is competent and wherein not, and does not take on himself things in which he is incompetent. If a man will drive a carriag-e, he is bound to have the ordinary competence of a coachman; if he will handle a ship, of a seaman;' if he will treat a wound, of a surgeon; if he will lay bricks, of a bricklayer; and so in every case that can be put. Whoever takes on himself to- exercise a craft holds himself out as possessing at least the common skill of that craft, and is answerable accordingly. If he fails, it is no excuse that he did the best he, being unskilled, actually could. He must at his peril have " skill reasonably competent to the task he undertakes" (p). As the Eomans put it, imperitia eulpae adnumeratur (q) . A 9 Ex. 125, 43 L. J. Ex. 92; Ward 654, 659. V. nobbs (1878) 4 App. Ca. 13, (?) D. 50. 17, de div. reg. iuris 23, 48 L. J. Q. B. 281. antiqui, 132; cf. D. 9. 2, ad legem (p) Harmer v. Cornelius (1858) Aquiliam, 8. Both passages are- 5 C. B. N. S. 236, 246, 116 R. E. from Gaius. ■28 „ PRINCIPLES OF LIABILITY. good rider who goes out with a horse he had no cause to think ungovernable, and, notwithstanding all he can do to "l^eep his horse in hand, is run away with by the horse, is not liable for what mischief the horse may do before it is brought under control again (r); but if a bad rider is r.un away with by a horse which a fairly good rider couhl have kept in order, he will be liable. An exception to this prin- 'ciple appears to be admissible in one uncommon but possible tind of circumstances, namely, where in emergency, and to avoid imminent risk, the conduct of something generally ■entrusted to skilled persons is taken by an unskilled person ; as if the crew of a steamer were so disabled by tempest or sickness that the whole conduct of the vessel fell upon an ■engineer without knowledge of navigation, or a sailor with- out knowledge of steam-engines. So if the driver and fire- man of a train were both disabled, say by sunstroke or lightning, the guard, who is presumably unskilled as concerns driving a locomotive, is evidently not bound to perform the ■driver's duties. So, again, a person who is present at an accident requiring immediate " first aid," no skilled aid being ■on the spot, must act reasonaUy according to com'mom know- ledge if ho 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 lawi 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. We shall now consider for what consequences of his acts ■and defaults a man is liable. When complaint is made that ■one person has caused harm to another, the first question is whether his act (s) was really the cause of that harm in a ()■) Ilammael! v. Whiie (1862j (.s) For shortness' sake 1 shall 11 C. B. N. S. 588, 31 L. J. C. P. often use the word " act " alone as 129; Bolmefi v. Malhp.r (187oJ L. equivalent to " act or default." H. 10 Ex. 261, 44 L. J. Ex. 176. MEASURE OF DAMAGES. 29" senso upon which the law can take action. The liarin or loss may be traceable toTiis act, but tiie connexion may be, in the accustomed phrase, too remote. The maxim "In iure non remota causa sed proxima spectatur" is Eng'lished in Bacon's constantly cited gloss: " It were infinite for the law to judge the causes of causes, and their impulsions one of another: therefore it contenteth itself with the immediate cause; and judgeth of acts by that, without looking to any further degree " (t). Liability must be founded on an act which is the "immediate cause" of harm or of injury to a right. Again, there may have been an undoubted wrong, but it may be doubted how' 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 con- sequences is needful first to ascertain whether there is any liability at all, and then, if it is established that wrong has been committed, to settle the footing on which compensation for the wrong is to be awarded. The normal form of com- pensation for wrongs, as for breaches of contract, in the- procedure of our Superior Courts of common law has been the fixing of damages in money by a jury under the direc- tion of a judge. It is the duty of the judge (u) to explain to the jurors, as a matter of lay, 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 (t) Maxims of the Law, Reg. 1. l>e no stronger illustration of th«- For criticism see Harv. Law Rev. extremely modern character of the XXV. 106. 'It is remarkable that whole subject as now understood, not one of the examples adduced by -Bacon belongs to the law of (m) Hadtey v. Baxendalc (1854) torts, or raises a, question of the 9 Ex. 341, 23 L. J. Ex. 179, 96. measure of damages. There could R. R. 742. "30 PRINCir'LES OF LIABILITY. difference between the price named in the contract and the •market value of the like goods at the time when the cx)ntract Tvas 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 (x). But in cases of tort the primary question ■of liability may itself depend, and it often does, on the nearness or remoteness of the harm complained of. Except where we have an absolute duty and an act which manifestly violates it, no clear line can be drawn between the rule of liability and the rule of compensation. The measure of damages, a matter appearing at first sight to belong to the law of remedies more than of "antecedent rights," con- stantly 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 con- nexion with the leading principles of the subject must not be overlooked here. The meaning of the term " immediate cause " is not ■capable of perfect or general definition. Even if it had an ascertainable logical meaning, which is more than doubtful, it would not follow that the legal meaning is the samje. In fact, our maxim only points out that some consequencesi are held too remote to be counted. What is the test of re- moteness we still have to inquire. The view which I shall ■endeavour to justify {y) is that, for the purpose of civil liability, those consequences, and those only, are deemed " immediate," " proximate," or, to anticipate a little, " natu- (x) Whether it is practically {y) i'or an able exposition of a -worth while to sue on a contract different view, see Prof. Jeremiah must, indeed, often turn on the Smith, Harv. Law Eev. xxv. 103, measure of damages. But tliis 223. need not concern us here. CONSEQUENCES. 31 ral and probable," which a person of average competence and knowledge, being in the like ca^ with the person whose con- duct is complained of, and having the like opportunities of obsei-vation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular con- sequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was " immediate " or not does not matter. That ■which a man actually foresees is to him, at all events, natural and probable. In the case of wilful vnrong-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 "WTong-doer intends to the events which in fact are bi-ought to pass by his deed; a relation which is not constant, nor always evident. A man strikes at another with his fist or a stick, and the blow takes effect as he meant it to do. Here the connexion of act and consequence is plain enough, and the wrongful actor is liable for the resulting hurt. But the consequence may be more than was intended, or different. And it may be different either in respect of the event, or of the person affected. Nym quarrels with Pistol and knocks him down. The blow is not serious in itself, but Pistol falls on a heap of stones which cut and bruise him. Or they are on the bank of a deep ditch; Nym does not mean to put Pistol into the ditch, but his blow throws Pistol off his balance, whereby Pistol does fall into the ditch, and his clothes are spoilt. These are simple cases where a different consequence from that which was intended happens as an incident of the same action. Again, one of Jack Cade's men 32 PRINCIPLES OF LIABILITY. throws a stone at an alderman. The stone misses the alder- man, but strikes and breaks a jug of beer which another citizen is carrying. Or Nym and Bardolph agree to waylay and beat Pistol after dark. Poins comes along the road at the time and place where they expect Pistol; and, taking him' for Pistol, Bardolph.and Nym seize and beat Poins. Clearly, just as much wrong is done to Poins, and he has the same claim to redress, as if Bardolph and Nym' meant to beat Poins, and not Pistol {z). Or, to take an actual and well- known case in our books (a). Shepherd throws a lighted squib into a building full of people, doubtless intending to- do mischief of some kind. It falls near a person who, by an instant and natural act of self -protection, casts it from him. A third person again does the same . In this third flight the squib meets with Scott, strikes him' in the face, and ex- plodes, destroying the sight of one eye. Shepherd neither threw the squib at Scott, nor intended such grave harm to- any one; but he is none the less liable to Scott. And so in the other cases put, it is clear law that the wrong-doer is liable to make good the consequences, and it is likewise- obvious' to Common sense that he ought to be. He went about to do harm, and having begun an act of vrrongful mischief, (z) In criminal law there is 135. There is a whole literature of some difficulty in the case of at- modern Continental controversy on tempted personal offences. There the subject, is no doubt that if A. shoots and killaor wounds X., under the belief (o) Scott v. Shepherd, 2 \V. BL that the man he shoots at is Z., 892; and in 1 Sm. L. C. No doubt he is in no way excused by tlie was entertained of Shepherd's mistake, and cannot be heard to say liability; the only question bein^ that he had no unlawful intention in what form of action he was as to X.: R. v. Smith (1855) liable. The inference of wrongful Dears. 559. But if he misses, it intention is in this case about as seems doubtful whether he can be obvious as it can be: it was, how- said to have attempted to kiU either ever, not necessary, squib-throwing, X. or Z. Cf. E. V. Latimer (1886) as Nares J. pointed out, having 17 Q. B. D. 359, 55 L. J. M. C. befen declared a nuisance by statute. NATURAL CONSEQUENCKS, 33 he cannot stop the risk at his pleasure, nor confine it to the precise objects he laid out, but must abide it fully and to the end. This principle is commonly expressed in the maxim that "a man is presumed to intend the natural consequences of his acts; " or, in the terms of a judicial statement, " a party must be considered, in point of law, to intend that which is the necessary and natural consequence of that which ho does"(fe); a proposition which, with due explanation and within due limits, is acceptable, but which in itself is am- biguous. 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 boasting of what he would do. But oftentimes the act itself is the chief or sole proof of the intention with which it is done. K we see Nym walk up to Pistol and knock him! down, we infer that Pistol's fall was intended by Nym as the consequence of the blow. We may be mistaken in this judgment. Possibly Nym is walking in his sleep, and has WiO real intention at all, at any rate, none which can be imputed to Nym awake. But we do naturally infer intention, andl 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 in- ference, not a presumption properly so called. Now take the case of Nym knocking Pistol over a bank into the ditch. (6) Bayley J. in It. v. Earveij American reports are collected by (1823) 2 B. & C. 257, 264, 26 R. E. Prof. Beale, of Harvard, " The at p. 343. This was in a criminal Proximate Consequences of an case, and therefore applies a Act ": Harv. Law Rev. xxxiii. 633, fortiori to civil liability. Many published since this sheet was in illustrative examples from modern type. P. a 54 PRINCIPLES OF LIABILII'Y. We -will suppose there is nothing (as there well may be nothing but Nym's own worthles.s assertion) to show whether Nym knew the ditch was there; or, if he did know, whether he meant Pistol to fall into it. These questions are like enough to be insoluble. How shall we deal with them? We shall disregard them. From' Nym's point of view his purpose may have been sim'ply to knock Pistol down, or to knock him into the ditch also; from Pistol's point of view the grievance is the same. The wrong-doer cannot call on us to perform a nice discrimination of that which is willed by him from that which is only consequential on the strictly wilful wrong. We say that intention is 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 be- lieved, be the lamest of apologies, and it would no less be a vain excuse in law. The habit by which we speak of presumption comes 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 procedure, Brian C.J. might well say "the thought of man is not triable" (c). Still there is more in our maxim than this. For although we do not care whether the man intended the particular consequence or not, we have in mind such conse- quences as he might have intended, or, without exactly in- tending 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 conse- quences ensuing. This is the limit introduced by such terms (c) Year-Book 17 Edw. IV. 1, p. 193 in lat ed., 261 in 2nd cd. translated in Blackburn on Sale, at by Graham. " NATURAL AND PROBABLE." 35 a5 " natural"— or more fully "natural and probable "—con- sequences {d'' . What is natural and probable in this sense IS commonly, but not always, obvious. There are conse- quences -which no man could, with com'mon sense and obser\-ation, help foreseeing. There are others which no human prudence could have foreseen. Between these ex- tremes 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 evesnts 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(«). But that point cannot be defined by science or philo- sophy (/) ; and even if it could, the definition would not be of much use for the guidance of juries. If English law seems vague on these questions, it is because, in the analysis made necessary by the separation of findings of fact from conclusions of law, it has grappled more closely with the inherent vagueness of facts than any other system. We may now take some illustrations of the rule of " natural and probable consequences " as it is generally accepted. In what- ever form we state it, we must remember that it is not a logical definition, but only a guide to the exercise of common (d) "Normal, or likely or prob- 9 Q. B. at p. 268): "In tort the able of occurrence in the ordinary defendant is liable for all the eon- courac of things, would perhaps be sequences of his illegal act, where the more correct expression:" tliey are not so remote as to have Grove J. in Smith v. Green (1875) no direct connection with the act, 1 C. P. D. at p. 96. But what is as by the lapse of time for in- normal or likely to a specialist stance." may not be normal or likely to a (f) " The doctrine of causation," plain man's knowledge and ex- said Fi-y L. J., "involves much perience. difiBculty in philosophy as in laW' ": (e) Thus Quain J. said {Sneeahy Setcn v. Lajone (1887) 19 Q. B. ■V. L. S; Y. Bail. Co. (1874) L. R. Div. at p. 74, 56 L. J. Q. B. 415. 3(2) 36 I'EINCIPLKS OF LUniLITY. sense. The lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause . In Vcmdenburgih v. Truax{ff), decided by the Supreme Court of New York in 1847, the plaintiff's servant and the defendant quarrelled in the street. The defendant took hold of the servant, wlio broke loose from him and ran away; " the defendant took up a pick-axe and followed the boy^. who fled into the plaintiff's store, and the defendant pur- sued him there, with the pick-axe in his hand." In running behind the counter for shelter the servant knocked out the faucet from a cask of wine, whereby the wine ran out and was lost. Here the defendant (whatever the merits of the original quarrel) was clearly a wrong-doer in pursuing the boy; the plaintiff's house was a natural place for his servant to take refuge in, and it was also natural that the servant,, "fleeing for his life from a man in hot pursuit armed with a deadly weapon," should, in his hasty movements, do some damage to the plaintiff's property in the shop. There was a -curious earlier case in the same State (h)^ 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 vegetables and flowers. Guille's descent was in itself plainly a trespass ^ and he was held liable not only for the damage done by the balloon itself but for that which was done by the crowed. " If his descent under such circumstances would ordinarily and naturally draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him' from' a perilous situation; all this he ought to have foreseen, and must be (ff) i Denio, 464. The decision (h) Grille v. Sman- (1822) 19 seems to be accepted as good law: Johns. 381. Fiero, 31,:32, 43. DUTY OF PREVISION. 37 responsible for " (i). In both these cases the squib CEise was commented and relied on. Similarly it has many times been said, and it is undoubted law, that if a man lets loose a dangerous animal in an inhabited place he is liable for all the mischief it may do. 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, m fact, with some danger to himself. But a man who goes up in a balloon must know that he lias to come down somewhere, and that he cannot be sure of coming down in a place which he is entitled to use for that purpose, or where his descent will cause no damage and excite no objection. Guille's liability was accordingly the same as if the balloon had been under his control, and he had guided it into Swan's garden. In the ease of a dirigible airship or aeroplane, if by some accident which could not be ascribed to any fault of the pilot the steering apparatus got out of order, and so the machine drifted into a neighbour's garden, the question might be less simple (/e3 fendant to say that he could not a step farther, have anticipated the consequences , PROXIMATE OR REMOTE CAUSE. 41 company. It was argued that the imtaiediate cause of the injuries to man, horses and oarriage ensuing' upon this fall yvas not the unlawful act of the water company, but th« neglect of the contractors who had madie the cutting in leav- ing it open and unfenoed. 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 purpose in hand whether the actual state of the ground was temporary or permanent, the work of nature or of man. If the carriage had gone into a river or over an embankment, or dowii a precipice, it would scarcely have been possible to raise the doubt. Williams v'. Great Western Railw^ay Company (r) 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 railway meeting a carria'ge- road in one place and! a footpath (which branched off from' the road) in the other. It was the duty of the company under certain Acts to have gates and a watchman at the road crossing, and a gate or stile at the footpath crossing; but none of these things had been done. "On the 22nd December, 1871, the plaintiff, a child of four and a-half years old, wlas 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 {s)y (r) L. B. 9 Ex. 157, 43 L. J. besides the statutory precatitiona Ex. 105 (1874). Cp. Hayes v. proved to have been omitted, which Michigan Central Rail. Co. (1883) may liave been prescribed or 111 U. S. 228. observed at the level crossing'. It C«) Nor as to any particular may be inferred that the accident train, nor as to precautions, if any, happened in the daytime. 42 PRINCIPLES OF LIABILITY. beyond this, that he liad been senit on an errand a few minutes beforte from the cottage where he lived, which lay by the roadside, at about 300 yards distance from the railway, and farther from it than the point where the footpath diverged from the road. It was suggested on the part of the defen- dants 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 com- pany's omission to provide a gate or stile. " One at least of the objects for which a gate or stile is required is to warn people of what is before them, ajid to make them pause before reaching a dangerous place like a railroad" (i)- In BcdUffs of Romney Marsh v. Trinity Rouse (u), a Trinity House cutter had by negligent navigation struck on a shoal about three-quarters of a mile outside the plaintiffs' sea-wall. Becoming unmanageable, the vessel was inevit- ably driven by strong wind and tide against the sea-wall, and did much damage to the wall. It was held without difficulty that the Corporation of the Trinity House Was liable (under the ordinary rule of a master's responsibility for his servants, of which hereafter) for this damage, as being the direct consequence of the first default which rendered the vessel unmanageable . (<) Amphlett B., L. R. 9 Ex. The George and Richard (1871) at p. 162. L. R. 3 A. & E. 466, a brig by («) L. R. 5 Ex. 204, 39 L. J. negligent navigation ran into a Ex. 163 (1870); in Ex. Ch. L. R. bark, and disabled her; the bark 7 Ex. 247 (1872). This comes was driven on shore: held that the near the case of letting loose a owners of the brig were liable tor dangerous animal ; a drifting vessel injury ensuing from the wreck of is in itself a dangerous thing. In the bark to persons on board her. PROXIMATK OK REMOTK CAUSE. 4a Something like this, but not so simple, was Lynch v. Niirdin (x), where the owner of a horse and cart left them un watched in the street; some children came up and began playing about the cart, and as one of them, the plaintiff m 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 umattended wlas held liable for this injury. The Court thought it strictly within the province of a jury " to pronounce on all the circumstances, whether the defendlant's conduct was wanting in ordinary care, and the harm to the plaintiff such a result of it as might have been expected " (^) . In a later case the driver of a tradesman's cart, who had instructions not to leave the cart, had with him a lad) ignorant of driving, whose only duty was to deliver parcels. The driver went into a house to get oil for his lamp, and the boy (iE) 1 Q. B. 29, 10 L. J. Q. B. 73, 55 E. E. 191 (1841) ; approved by O. A., Sarrold v. Watnoy [1898] 2 Q. B. 320, 67 L. J. Q. B. 771; tliis was not such a strong ease (th« defendant had a fence bounding a highway, which was so insecure as to be a nuisance; the plaintiff, a small child, was hurt by the fence falling when he put his foot on it): and op. Clark v. Chambers, 3 Q. B. D. at p. 331. (y) This case was relied on in Massachusetts in Powell v. Deveney (1849) 3 Cush. 300, where the de- fendant's truck had, contrary to local regulations., been left out in the street for the night, the shafts being shored up and projecting into the road; a second truck was similarly placed on th« opposite side of the road; the driver of a third truck, endeavouring' with due caution, as it was found, to drive past through the narrowed fairway thus left, struck the shafts of the defendant's truck, which whirled Tound and struck and injured th© plaintiff, who was on the side- walk. Held that the defendant was liable. If the case had been that the shafts of the truck re- mained on the sidewalk, and the plaintiff afterwards stumbled on them in the dark, it would be an almost exact parallel to Clarh v. Chambers (3 Q. B. D. 327, 47 L. J. Q. B. 427; see p. 47 below). Lynch v. Nurdin has also been approved and followed in the Sup. Ct. U. S.; see Union Pac. JRy. v. McDonald (1893) 152 U. S. 262. ■44 PRINCIPLES OP LIABILITy. drove the cart round, meaning to have it ready for turning Jback. In so doing he ran into the plaintiff's carriage. It was held that the driver's original negligence in leaving the •cart was the "effective cause" of the damage, and his em- ployer was therefore liable (^). Negligence, however, must be proved. A railway company does not insure the public against every kind of damage, knowli or unknown, that may result from trespassers meddling with its rolling stock (a) . But a railway company has been held liable for injury suffered by a child in playing with an insecure turntable, ■children being accustomed so to play in circumstances which, in the unanimous opinion of the House of Lords, amiounted to evidence, though not strong evidence, of leave and licence. The decision proceeded expressly on the ground that the children w'ere not trespassers but (as the jury had in effect found) licensees (6); and thus the only difference between this case and Lynch v. NurMn(c) is that there the children, though trespassers as regards the cart and horse, had a right to be on the highway, and here they could rely only on a bare licence . In either case an adult so meddling with the defen- dant's property would have acted at his own risk: but of this distinction elsewhere (d) . («) Engelhart v. Farrant ^- Co. (J) Cooke v. Midland G. W . It. [1897] 1 Q. B. 240, 66 L. J. Q. B. of Ireland [1909] A. C. 229. 122, C. A. (c) Note {x), last page. (a) McDoimll v. G. W. It. Co. (d) The judgment of the House [1903] 2 K. B. 331, 72 L. J. K. B. of Lords that there was in fact ■652, C. A. Here the C. A. pointed evidence of a licence does not esta- ■out that the precautions suggested blisli any general rule, and is of /by the plaintiff's counsel "would not authority only in closely similar necessarily or probably have been circumstances: it seems that a ver- more effectual than those in fact diet the other "way ■would not have adopted. Cp. Richards v. Lothian been disturbed (see [1909] A. G. [1913] A. O. 263, 82 L. J. P. C. at pp. 233, 242). The lamented 42 (J. C). A later similar case and very learned Mr. Beven at- ■is Ruoff V. Long <5" Co. [1916] 1 tacked the decision in an elaborate K. B. 148, 85 L. J. K. B. 364. pamphlet (The House of Lords on PROXIMATE OR REMOTE CAUSE. 45- It will be seen that on the whole the disposition of the Courts has been to extend rather than to narrow' the range of "natural and probable consequences." A pair of cases at fii-st sight pretty much alike in their facts, but in one of which the claim succeeded, while in the other it failed, will show where the line is drawn. If a horse escapes into a public road and kicks a person who is lawfully en the road, its ovmev is not liable unless he knew the horse to be vicious (e). He was bound indeed to keep his horse from^ straying, but it is not an ordinary consequence of a horse being loose on a road that it should kick human beings without provocation. The rule is different however if a horse' b}" 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 (/) . The leading case of Metropolitan By. Co. -v. Jackson {g) is in truth of this class, though the problem arose and was considered, in form, upon the question whether there was the law of trespass to realty and Amerioan writers. Op. Bradley v. children as trespassers, Lond. Wallaces [1913] 3 K. B. 629, 82 1909). It is not now arguable, L. J. K. B. 1074, O. A. however, if it ever was, that ia {./) Zee v. Riley (1865) 18 0. B. Ucensee has no right at all. In N. S. 722, 34 L. J. C. P. 212, R. B. Co V. Stout (1873) 17 Wall. 144 B. R. 644. Both decisions 657, the Supreme Court of the U.S. were unanimous, and two judges, gave a decision on similar factsi (Erie O. J. and Keating J.) took which has been much canvassed in part in both. Cp. Ellis v. Loftus America, and not followed in some Iron Co., L. R. 10 O. P. 10, 44 States. (See more in Ch. XII., L. J- C. P. 24; Halestrap v. pp. 528, 529, below.) Gregory [1895] 1 Q. B. 561, 64 (e) Cox V. Burbidge (1863) 13 L. J. Q. B. 415, a case on the C. B. N. S. 430, 32 L. J. O. P. 89, border-Une, per Wills J. 134 E. E. 586. I do not know (,g) 3 App. Ca. 193, 47 L. J. how to reconcile this decision with C. P. 303 (1877). Op. Cobb v. the wider measure of liability pre- G. W. E. Co. [1893] 1 Q. B. 459,, ferred by Beven and some learned 62 L. J. Q. B. 335. 4B PRINCIPLES OF LIABILITY. any evidence of negligence. The plaintiff was a passenger in a carriage already over-full. 'As the train was stopping at a station, he stood up to resist yet other persons who hadi •opened the door and tried to press in. While he was thus standing, land the door was open, the train moved on. He laid his hand on the door lintel for support, and at the same moment a porter came up, turned off the intruders, and quickly shut the door in the usual manner. The plaintiff's thumb was caught by the door and crushed. After much difference of opinion in the Courts below, mainly due to a toio 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 happened if the •carriage had not been overcrowded at all. Unusual conditions brought about by severe frost have more than 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 be expected to provide against. In the memorable " Crimean winter" of 1854-5 a fire-plug attaohed to one of the mains of the Birmingham' Waterworks Company was deranged by the frost, the expansion of superficial ice forcing ■out the plug, as it afterwards seemed, and the water from the main being dammed by incrusted ice and snow above. The escaping water found its way through the ground into the cellar of a private house, and the occupier sought to recover from the company for the damage. The Court held that the accident was manifestly an extraordinary one, and .beyond any such foresight as could be reasonably re- PROXIMATE OR REMOTE CAUSE. 47 quired (h). Here nothing was alleged as constituting a A\Tong on the company's part heyond the mere fact that they did not take extraordinary, precautions. 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 water ran down a gutter, and would in fact (k) (but for a hard frost which had then set in for some time) have run harmlessly down a grating into the sewer, at a corner some twenty-five yards from where the van was washed. As it happened, the grating was frozen over, the water spread out and froze into a sheet of ice, and a led horse of the plaintiff's slipped thereon and broke its knee. It did not appear that the defendant or his servants knew of the stoppage of the grating. The Court thought the damage was not "widiin the ordinary consequences" (I) 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 " (to) : he " could not reasonably be expected to foresee that the water would accumulate and freeze at the spot where the accident happened " (w) . Some doubt appears to be cast on the rule thus laid down — which, it is admitted, is the right one' — by what was said a few years later in ClarJc v. Chambers (o), though not by (A) Bli/t/i V. Birminffham Water- (i) L. R. 7 O. P. 253, 41 L. J. works Co. (1856) 11 Ex. 781, 125 C. P. 95 (1872). If Beven and Ii. J. Ex. 212, 105 B. E. 791. Prof. Jeremiah Smith are righti. The question was not really of re- thia case also must be wrong, moteness of damage, but whether (/c) So the Court found, having there was any evidence of negU- power Uy draw inferences of fact, genoe at all; nevertheless the case (0 Grove J. is instructive for comparison with (m) Keating J. the others here cited. Cp. Mayne (»;) Bovill O. J. on Damages, Preface to the first (o) 3 Q. B. D. 327, 47 L. J. edition. Q- B. 427 (1878). 48 PRINCIPLES OF LIABILITY. the decision itself. This case raises the question whether the liability of a wrong-doer may not extend even to remote and unlikely consequences where the original wrong is a wilful trespass, or consists in the unlawful or careless use of a dangerous instrument. The main facts were as follows: — 1. The defendant without authority set a barrier, partly armed with spikes (cheva,ux-de-frise), across a road subject to other persons' rights of way. An opening was at most times left in the middle of the barrier, and was there at the- time when the mischief happened. 2. The plaintiff went after dark along this road and through the opening, by the invitation of the occupier of one of the houses to which the right of using the road be- longed, and in order to get to that house. 3. Some one, not the defendant or any one authorized by him, had removed one of the chevaux-de-frise barriers, and set it on end on the footpath. It was suggested, but not proved, that this was done by a person entitled to use the- road, in exercise of his right to remove the unlawful ob- struction. 4. Returning later in the evening from his friend's house, the j)laintiff, after safely passing through the central open- ing above mentioned, turned 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 (p) held that the damage (p) Cookbum O. J. and Manisty being liable: a position -which is J. The point chiefly argued for clearly untenable (see Scott v. the defendant seems to have been Shepherd) ; but the judgment is of that the intervention of a thirti -wider scope. person's act prevented him from PROXIMATE OR REMOTK CAUSE. 49 was nearly enough connected with the defendant's first wrongful act — namely, obstructing the road with instruments dangerous to people lawfully using it— for the plaintiff to be entitled to judgment. It is not obvious why and how, if the consequence in Cla>-k v. Chambers was natural aud pro- bable enough to justify a verdict for the plaintiff, that in Sharp V. Poiuell was too remote to be submitted to a jury at all. The Court did not dispute the correctness of the judgments in Sha?-p v. PoweU " as applicable to the circum- stances of the particular case; " but their final observations (g' ' certainly tend to the opinion that in a case of active wrong- doing the rule is different. Such an opinion, it is submitted, is against the general weight of authority, and against the principles underlying the authorities (r) . However, their conclusion may be supported, and may have been to some extent determined, by the special rule imposing the duty of what has been called " consummate caution " on persons dealing with dangerous instrum:ents. Perhaps the real solution is that here, as in Hill v. New River Co. (s), 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 accident. If in this case the spikes had not been disturbed, and the plaintiff had in the dark missed the free space left in the barrier, and run against the spiked part of it, the defendant's liability could not have been disputed. As it was, the ob- struction 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 (t/) 3 Q. B. D. at p. 338. for disregard of statutory provi- (>•) Comparo the cases on slander siona, Gorris v. Scott (1874) L. E collected in the notes to Vioara v. B Ex. 125, 43 L. J. Ex. 29. WiloocJcs, 2 Sm. L. O. CSompara also, as to consequential liability (a) P. 40, above. 50 PEINCIPLES OF LIABILITY. plaintiff's way no less than Shepherd put his squib in the way of striking Scott; whereas in Sharp v. Pmvell 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 to be regretted that a considered judgment was delivered in a form tending to unsettle an accepted rule without putting anything definite in its place. On the whole, I submit that, whether 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. A state of mind such as fear or acute grief is not in itseK capable of assessment as measurable temporal damage. But visible and provable illness may be the natural consequence of violent emotion, and may furnish a ground of action against a person whose wrongful act or want of due care produced that emotion. The plaintiff's physical damage may be the result of immediate bodily fear induced by some accident due to negligence for which the defendant is an- swerable (t), of nervous shock caused by unlawful intimida- tion (m), or of sudden distress caused by a false statement wilfully made (x) . In every case the question is whether the shock and the illness were in fact natural consequences of the wrongful act or default; if they were, the iUness, not the shock, furnishes the measurable damage, and there (f) Dulieu V. White f So-m detective to obtain production of [1901] 2 K. B. 669, 70 L. J. K. B. letters, with false pretence of 8.37 (van negligently driven into having military authority), plaintiff's honse by defendants' (x) WilMnaon \. Dmcnton servant). [1897] 2 Q. B. 57, 66 L. J. Q. B. (m) Janvier v. Sweeney [1919] 493 (defendant, it seems by way 2 K. B. 316, 88 L. J. K. B. 1231, of a practical joke, falsely told. C. A. (unlawful threat of prosecu- plaintiff her husband had met witih tion for espionage used by private a serious accident) . NERVOUS SHOCK. 51 IS no more difficulty iii assessing it than in assessing damagesi for bodily injuries of any kind. In the case of unwarrant- able threats or wanton falsehood not intended to produce grave effects, " it is no answer in law to say that more harm was done than was anticipated!, for that is commonly the case with all -wrongs" (y). So the law is now settled in our courts by three well- considered decisions, the latest of them in the Court of Appeal {z) . The contrary opinion of the Judicial Com- mittee in Victorian Railmays Commrs. v. Coultas (a), though it has been to a certain extent approved in America (fe), must now be definitely considered erroneous. The fallacy consists in supposing the fear or distress itself to be relied on as the gist of the action, whereas it is only an element in the series of consequences leading to the actual damage. Doubtless the chain of consequence must be fairly made out; claims of this kind offer a rather special temptation to sympathetic juries to find unreasonable verdicts and award excessive damages; and in these as in other cases findings of fact may and ought to be kept within due bounds by the Court. But these grounds of caution do not amount to good reason for turning a question of fact into a question of law and unconditionally denying relief in all cases where mental emotion (evidenced, of course, by outward signs) is a link in the chain of causation. It is enough to remem- ber, and to impress on juries when required, that grief and (y) Wright J. [1897] 2 Q. B. at "mental injuries" in the Court p .53_ below there may have been ground (z) Janvier v. Sweeney, note («<); for censure, but the judgment de- jjj,Qyg_ liverod — not the judgment of a, (a) (1888) 13 App. Ca. 222: strong Court, it may now be said Unless consequent on sudden fear without indiscretion— goes much of imminent danger brought about further. by railway servant's negligence: so (6) See Wigmore, Sel. Ca. i. 52 far as damages were awarded for sqq. 4 (2) 62 PRINCIPLES OF LIABILITY. distress are understood to be such as would naturally follow upon the act or default complained of, and fear to be such as might reasonably be caused thereby (c). In some of the American cases the findings of the jury were obviously un- reasonable (American juries being no less prone than ours to treat a railway company as caput lupinum), and the decisions might well have been put on that ground. There is no diiEculty in agreeing with the American judges who have held that a distinct award of damages for anxiety or other mental suffering cannot be sustained. It is no longer necessary but may still be useful to observe that, if the opinion of the Judicial Committee were right, assault without battery ought not to be an actionable wrong; and that for more than half a century actions for damage done by animals which have been frightened by some negli- gent act of the defendant or his servants have been allowed without question (d) . It is conceived that spoken words not uttered to the plaintiff or in the plaintiff's presence but only reported by a third per- son cannot be taken into account for this purpose, the conse- quence being too remote (e). Words spoken to or before the plaintiff, and leading to such consequences as now in question, may be otherwise actionable; in such a case it is obviously better to sue on the simpler cause and use the special matter as ground for exemplary damages. (c) Cp. The jRigel [1912] P. 99, Q. B. 212. And see Boven, NegU- 103, 107. i^enoe in Law, i. 76, 84. {d) E.g., Manchester S. .Jn. Ry. (e) Cp. Allsop v. AUsop (1860) Co. V. Fullartm (1863) 14 O. B. 5 H. & N". 534, 29 L. J. Ex. 315, N. S. 54, 135 R. E.. 599; Brown. 120 R. R. 712, which, however, ia V. Eastern and Midlands Ry. Co. distinguishable otherwise. See (1889) 22 Q. B. D. 391, 58 L. J. [1897] 2 Q. B. at p. 60; ( 53 ) CHAPTER III. PERSONS AFFECTED BY TOKTS. 1- — Limitations of Personal Capacity. In the law of contract 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. Grenerally speaking, there is no limit to personal capacity either in becoming liable for civil injuries, or in the power of obtain- ing redress for them. Tt seems on princi_ple that where ^ particular intention, knowledge, or state of mind in the person charged as a wrong-doer is an element, as it some- times 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 might be slander. (a) Ulpian, in D. 9, 2, ad leg. verissimmn. . . . Quod si impubes Aquil. 5, § 2. QuaerimuS, si id feoerit, Labeo ait, quia furti furiosus damnum dederit, an legis tenetur, teneri et Aquilia ©um: efc Aquiliae actio sit? Et Pegasus hoc puto verum, ai sit iam iniuriae negavit: quae «nim in eo culpa sit, capax. cum suae mentis non sit? Et hoc 6st 51 PERSONS AFFECTED BY TORTS. But this would not help a monomaniac 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 sam© actions or readiness to act as of a seeing man. It has been held in New Zealand (6) that a lunatic is civilly liable for assault (presumably, therefore, for any kind of trespass) even if he is unconscious of the nature and consequences of his acts and incapable of understanding them. This, it is submitted, is erroneous in principle and not required by any English authority. The defence is not that the actor was insane, but that there was no real volimtary act at all. Liability can be imposed in such a case only on the obsolete theory (to be considered in Chap. IV below) that inevitable accident is no excuse. DiiEculties of any degree may, no doubt, have to be faced in determining whether a given act was voluntary. But they may seem less formidable if we bear in mind that it is essentially a question of fact, and that the burden of proof is on the party who alleges abnormal conditions. It is by no means suggested that theories of psychology, normal or abnormal, should be made propositions of law. The errors of common sense are more tolerable, on the whole, than those of speculation; at all events they are more easily corrected. (6) Bremmn v. Donaghy, 19 fever patient liable? If not, wliy N. Z. L. R. 289. Would the New not? Zealand Court hold a delirious INFANTS. 55 There exist partial exceptions, however, in the case of convicts and alien enemies, and apparent exceptions as to infants and married women. A convicted felon whose sentence is in force and unex- pired, and who is not " lawfully at large under any licence," cannot sue " for the recovery of any property, debt,, or damage whatsoever " (c,'" . An alien enemy, that is, a person of what- ever nationality whose residence and place of business are in hostile territory, cannot sue in his own right in any English court without licence from the Crown; registration under the Aliens Restriction Act, 1914, operates as a licence (d). With regard to infants, there are 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 enable you to sue an infant: Jennings v. Rundall" (e). And the principle goes to this extent, that no action lies against an infant for a fraud whereb}' he has induced a person to contract with him, such as a false statement that he is of full age (/). But where an infant commits a wrong of which a contract, (c) 33 & 3i Viot. c. 23, as. 8, Court is to the contrary, seo 30. Can he sue for an injunction? L. Q. E,. xx. 168. Or for a dissolution of marriage or («) 8 T. E. 335, 4 R. R. 680, judicial separation? thus cited by Parke B., Fairhurst V. Liverpool Adelphi Loan Asso- (d) Porter v. Freudenberc; elation (1854) 9 Ex. 422, 23 L. J. [1915] 1 K. B. 857, 84 L. J. K. B. Ex. 163, 96 R. R. 778. 1001, C. A. It has been supposed (/) Johnsoti v. Pie, 1 Sid. 258, that the Statute of Limitations is &c. See the report fully cited by not suspended during the disability, Knight Bruce V.-O. (1847) in but there is no positive decision to Stikeman v. Daxvson, 1 De G. & that effect, and the uniform doc- Sm. at p. 113, and cp. the remarks trine of the American Supreme at p. 110; 75 R. R. at pp. 61,64. 66 PERSONS AFFECTED BY TORTS. or the obtaining of something under a contract, is the occa- sion, but only the occasion, he is liable. In Burnard v. Haggis (g), the defendant in the County Court, an infant undergraduate, hired a horse for riding on the express con- dition that it was not to be used for jumping; he went out with a friend who rode this horse by his desire, and, making a cut across country, they jumped divers hedges and ditches, and the horse staked itself on a fence and was fatally injured. Having thus caused the horse to be used in a manner wholly unauthorized by its owner, the defendant was held to have committed a mere trespass or " independent tort " (h), for which he was liable to the owner apart from any question of contract, just as if he had mounted and ridden the horse without hiring or leave. Also it has been established by various decisions in 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, nor can he hold other persons liable for acts done on the faith of his false statement, which would have been duly done if the statement had been true («) . 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 (j) . (ff) 14 C. B. N. S. 45, 32 L. J. election in case or in trespass vi C. P. 189 (1863). . et armis. See Litt. a. .71. (h) See per Willes J. If the (i) Lempriere v. Lange (1879) bailment had been at will, the de- 12 Ch. D. 675; and see other cases f endant's act would have wholly. in the writer's " Principles of Ck)n- determined the bailment, and under tract," pp. 80, 81, 8th ed. the old forms of pleading he would (/) Lempriere v. Lange, last have been liable at the owner'si note. MARRIED WOMEN. 57 As to married women, a married woman was bj the common law incapable of binding herself by contract, and therefore, like an infant, she could not be made liable as for a wrong in an action for deceit or the like, when this would have in substance amounted to making her liable on a contract [k) ; and a husband was not and is not liable on a cause of action against the wife arising wholly out of a contract i^l) . In other cases of wrong (including, as with infants, wrongs of which a contract was only the occasion) (to) she was not under any disability, nor had she any immunity; but she had to sue and be sued jointly with her husband, in- asmuch as her property was the husband's; and the husband got the benefit of a favourable judgment and was liable to the consequences of an adverse one. Since the Married Women'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 {n) . If a hus- band and wife sue jointly for personal injuries to the wife, the damages recovered are the wife's separate property (o). She may sue her own husband, if necessary, " for the pro- tection and security of her own separate property (p);" but (Jc) Liverpool Adelphi Loan As- Q. B. 528; Lowe v. Fox (1885) 15 -■iociation V. Fairhurst (1854) 9 Ex. Q. B. Div. 667, 5i L. J. Q. B. 561. 422, 23 L. J. Ex. 163, 96 R. R. 778. (o) Beasley v. Roney [1891] 1 Q) Cole V. Be Traford [1917] Q. B. 509, 60 L. J. Q. B. 408. 1 K. B. 911. (jp) This provision covers a (m) Earle v. Kingscote [1900] wife's action for rescinding a sepa- 2 Ch. 685, 69 L. J. Ch. 725, C. A. ration deed on th« ground of the (»'<) 45 & 46 Vict. c. 75, o. 1. husband having obtained her con- As to the right of action, and the sent thereto by fraud, but does not operation of the Statute of Limi- enable her to claim damages for tation, on a cause of action which the deceit: JIulton v. Ilulton arose before the Act cam« into [1917] 1 K. B. 813, 86 L. J. K.. B. operation, see Weldon v. Winslow 633, C. A. (1884) 13 Q. B. Div. 784, 53 L. J. 58 . PERSONS AFFECJ'ED BY TORTS. otherwise actions for a tort between husband and wife can- not be entertained (g) . That is, a wife may sue her husband in an action which under the old forms of pleading would have been trover for the recovery of her goods, or for a trespass or nuisance to land held by her as her separate property; but she may not sue him in a civil action for a personal wrong such as assault, libel, or injury by negli- gence. Divorce does not enable the divorced wife to sue her husband for a personal tort committed during the cover- ture (r) . There is not anything in the Act to prevent a husband and wife from suing or being sued jointly accord- ing to the old practice; the husband is not relieved from liabilitj- for wrongs committed by the wife during coverture, and may still be joined as a defendant at need(s). If husband and wife are now jointly sued for the wife's wrong, and execution issues against the husband's property, a ques- tion may possibly be raised whether the husband is entitled to indemnity from the wife's separate property, if in fact she has any (t). There is some authority for the doctrine that by the common law both infants (u) and married women (y) are (5) Sect. 12. A trespasser on now binding on the Ckjurt of the wife's separate property cannot Appeal though not approved by all justify under the husband's autho- its members: see Ciienocl \ . Leslie' rity. Whether the husband himself [1909] 1 K. B. 880, 889, 78 L. J. could justify entering a house, his K. B. 695. wife's separate property, acquired (t) Sect. 13, which expresslv as such before or since the Act, in provides for ante-nuptial liabilities, which she is living apart, queer e: is rather against the existence of ■Weldon v. De Bathe (1884) 14 such a right. Q. B. Div. 339, 54 L. J. Q. B. 113. (») Johnson ^. Tie, p. 55, snprit ()•) Phillips V. Barnet (1876) 1 (a dictum wider than the decision) . Q. B. Div. 435, 45 L. J. Q. B.277. (v) Wright v. Leonard (1861) (s) Seroka v. Kattenburg (1886) 11 C. B. N. S. 258, 30 L. J. C. P. 17 Q. B. Div. 177, 65 L. J. Q. B. 365, by Erie C. J. and Bj^les J., 375, approved in C. A. Earle v. against Willes J. and Williams J. Kingsaoie [1900] 2 Ch. 585, 69 The judgment of Willes J. seems L. J. Ch. 725 : these decisions are to me conclusive. CORPORATIONS. 59 liable only for " actual torts " such as trespass, which were formerly laid in pleading as conira pacem, and are not in any case liable for torts in the nature of deceit, or, in the old phrase, in actions which "sound in deceit." But this docs not seem acceptable on principle. As to corporations, it is evident that personal injuries, m the sense of bodily harm or offence, cannot be inflioted upon them. Neither can a corporation be injured in respect of merely personal reputation. It can sue for a libel affect- ing property, but not for a libel purporting to charge the corporation as a whole with corruption, for example. The individual officers or members of the corporation whose action is reflected on are the only proper plaintiffs in such a case {x) . It would seem at first sight, and it was long supposed, that a corporation also cannot be liable for personal wrongs (?/■) . But this is really part of the larger question of the liabilitj^ of principals and employers for the conduct of persons em- ployed by them ; for a corporation can act and become liable only through its agents or servants {z) . In that connexion we recur to the matter further on . (x) Mayo-i- of Manchester v. tion aggregate. That a corporation Williams [1891] 1 Q. B. 94, 60 may be held liable for the pub- L. J. Q. B. 23. lication of a Kbel, see Whitfield (y} The difficulty felt in earlier v. tH. E. R. Co. (1858) E. B. & E. time? was of proceaa; not that a 115, 27 L. J. Q. B. 229, 113 B. E. corporation was metaphysically in- 568; the libel was contained in a capable of doing wrong, but that telegram sent over the company's it was not physically amenable to line, seemingly in the ordinary way capias or exigent: 22 Ass. lOD, of business; cp. Fogg v. Boston pi. 67, and other authorities col- and Lowell S. Co. (1889) 148 lected by Serjeant Manning in the Ma^s. 513, and see per Lord Bram- notes to Maund v. Monmouthshire well, 11 App. Oa. at p. 254. Canal Co. (1842) 4 Man. & G. (z) Therefore the opinion of 452, where it was finally decided Brian C. J. and the Court that a that trespass, as earlier in Yar- corporation cannot trespass, 15 borough y. Bank of England (1812) Edw. IV. 1, pi. 2 (a.d. 1476), 16 Bast 6, 14 E. E. 272, that was inevitable at a time when the trover would lie against a corpora- doctrine of respondeat superior was '60 PERSONS AFFECTED BY TOKTS, The greatest difficulty has been felt in those kinds of €ases where " malice in fact " — actual ill-will or evil motive — has to be proved; but in the strongest case, that of mali- cious prosecution, the objection may now be considered un- tenable (a) . Where bodies of persons, incorporated or not, are intrusted with the management and maintenance of works, or the performance of other duties of a public nature, they are in their corporate or quasi-corporate capacity responsible for the proper conduct of their undertakings no less than if they were private owners: and this whether they derive any profit from the undertaking or not (b) . The same principle has been applied to the management of a public harbour by the executive government of a British colony (c). The rule is subject, of course, to the special statutory provisions as to liability and remedies that may exist in any particular case {d) . still unformed. Obviously a cor- interest by one of its servants, in- poration, whatever kind of person timated a clear opinion that thei it is, cannot trespass in its proper same principle applies to malicious person. See L. Q. R. xxvii. 233. prosecution. Qucere, was it ever thought that (J) Mersey Ikicka Trustees v. case would lie though trespassi Qihhs (1864-6) L. R. 1 H. L. 93, would not? 11 H. L. C. 686, 35 L. 0. Ex. 225, (a) It was abandoned by counsel 145 R. R. 385 ; see the very full in Cornford v. Carlton Bank and careful opinion of the judges [1900] 1 Q. B. 22, 68 L. J. Q. B. delivered by Blackburn J., L. R. 1020, O. A.; and in Citizerts' Life 1 H. L. pp,. 102 sqq., 145 R. R. Assurance Co. v. Brown [1904] 3*, in which the previous autho- A. O. 423, 73 L. J. P. O. 102, rities are reviewed; The Beam the Judicial Committee (Lord [1906] P. 48, 75 L. J. P. 9, C. A. Macnaghten, Lord Davey, Lord (c) Reg. v. Williams (appeal Lindley, and Sir A. Wilson), up- from New Zealand) (1884) 9 App. holding an action for a libel pub- Ca. 418. lished in the company's supposed {d) L. R. 1 H. L. 107, 110. ACTIO PERSONALIS, ETC. 61 2. Effect of a Forty's Death. 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 moritiir cum persona, or the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. The maxim "is one of some antiquity, but its origin is obscure and post-classical" (e). 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 negli- gent performance of a contract, the maxim does not apply to these. In cases of tort not falling within sta,tutory ex- ceptions, to be presently mentioned, the estate of the person wronged has no claim, and that of the wrong-doer is not liable. Where an action on a tort is referred to arbitration, and one of the parties dies after the hearing but before the making of the award, the cause of action is extinguished notwithstanding a clause in the order of reference providing for delivery of the award to the personal representatives of a party dying before the award is made. Such a clause is insensible with regard to a cause of action in tort ; the agree- ment for reference being directed merely to the mode of trial, and not extending to alter the rights of the parties (/) . A very similar rule existed in Roman law, with the modifica- tion that the inheritance of a man who had increased his estate by dolus was bound to restore the profit so gained, and that in some cases heirs might sue but could not be (e) Bowen and Fry L. JJ., Goudy in Essays in Legal History, Finlay v. CMrney (1888) 20 Q. B. ed. P. Vinogradoff, Oxford, 1913, Div. 494, 502, 57 L. J. Q. B. 247; at pp. 216 sqq. see this judgment on the history (/) Bov:ker v. Evans (1885) 15 of the maxim generally, and Prof. Q. B. Div. 565, 54 L. J. Q. B. 421. 62 PERSONS AFFECTED BY TORTS. sued {g) . Whether derived from a hasty following of the Eoman 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 quasi -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 feeling 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 incon- venient to recover against one who was not part}' to the wrong" {h). Indeed, the survival of a cause of action was the exception in the earliest English law (i) . But Avhen once the notion of vengeance has been put aside, and that of compensation substituted, the rule actio persotialis 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 satis- faction 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 only what prior claims leave for him, and there will be no hardship in his taking subject to all obliga- tions, 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 compilaint in the case of intest-ate succession. (<;) I. iv. 12, de perp-etuis eti »onaUs in the English maxim is temporalibus aotionibus, 1. An- nothing- but a misreading of other difference in favour of thei poenalis. lloman law is that death of a (h} Newton C. J. in Year-Book party after litis contestatio did not 19 Hen. VI. 66, pi. 10 (a.d. 1440- abate the action in any case. It 41). has been conjectured that per- (i) 20 Q. B. Div. 503. ACTIO PERSONALIS, ETC. 63 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 viepartments, presume it, in favour of the wrong-doer, so to be? Here one might almost sa,y that omnia praesumuntur pro gpoliatore. Personal wrongs, it is allowed, may " operate to the temporal injury" of the personal estate, but without express allegation the Court will not intend it {¥), though in the case of a wrong not strictly p>ersonal 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 need- less to pursue the argument of principle against a rule which has been made at all tolerable for a civilized country onl^y by a series of exceptions (to) ; of which presently. The rule is even carried to this extent, that the death of a human being cannot be a cause of action in a civil Cou;rt for a person not claiming through or representing the person killed, who in the case of an injury short of death would have been entitled to sue. A master can sue for injuries done to his servant by a wrongful act or neglect, whereby the service of the servant is lost to the master. But if the injury causes the servant's death, it is settled law, as the House of Lords has declared (w), that the master's right to compensation is gone. This rule was justified in elaborate opinions by the late Lord Parker and by Lord Sumner. It does not depend on the maxim "actio personalis," &c., and ik) CJuimberlain v. Williamson, (»^) Op. Bentham, Traitla de •2 M. & S,. at p. 414, 15 R. R. at L6gislation, vol. ii. pt. 2, u. 10. p_ 297. («) Admiralty Commra. v. S.S. (I) Twycross v. Grant (1878) 4 America [1917] A. O. 38, 86 L. J. C. P. Div. 40, 48 L. J. 0. P. 1. P. 58. t)4 PERSONS AFFECTED BY TORTS, has nothing to do with Roman law. The reasons given are purely historical, and amount to a denial that the common law ever allowed an action of trespass on facts amounting to a felony, at any rate when they did not include any cause of action that could be alleged without alleging a felony. But homicide is presumably felonious. Hence no civil action could be allowed for causing the death of a human being. The affinity of the rule, if any, is with the principle, long recognized but never properly defined till our own time, of trespass being "merged in felony," with which we shall deal later under the head of Remedies. Both these very learned opinions indicate a feeling that a master's action for loss of service is itself no better than a surviving archaism in our modern law and does not deserve encourage- ment. As the authorities are uniform and the decision of the House final, no useful purpose would be served by further discussion (o) . Nevertheless damages arising from the death of a person may be recovered where the cause of action is in itself independent of the death (p) . 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 the 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 (o) See, however, a note signed K. B. 648, 75 L. J. K. B. 907. As W. S. H. in L. Q. R. xxxiii. 107. to the law of Scotland, L. Q. R. i. The chief earlier authorities are 182. The English rule is received Baiter v. Bolton (1808) 1 Camp. in Canada and the United States. 493, 10 R. R. 734; Oshorn v. Gillett See [1914] P. at p. 176. (1873) L. R. 8 Ex. 88, 42 L. J. Ex. 53, where Bramwell B. dissented {p) Jackson v. Watson # Soi%» vigorously ; Clark v. London [1909] 2 K. B. 193, 78 L. J. K. B. Gefieral Omnibus Co. [1906] 2 587, C. A. (not a case of tort). CIVIL PKOCEDUEE ACT, 1833. 69 IS enacted that the executors in such cases shall have an action against the trespassers .to recover damages in like manner as they, whose executors they be, should have had if they were in life. The right was expressly extended to executors of executors by 25 Ed. III. st. 5, c. 5, and was construed to extend ta administrators (g') . 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 (r). Then by 3 & 4 WiU. 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 six calendar months before his death " to another in respect of his property, real or per- sonal . " In this latter case the action must bei brought againsit 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 or nuisance committed during the tenancy (s) . If the injury is of a continuing nature and creates a continuing cause of action it is immaterial that nothing active was done six months before the death (t) . (?) See note to Pinohon's case, 9 Oaket/ v. Dalton (1887) 35 Oh. D. Co.'e«P. 89 a, vol. ,. p. 161 in 700,56 L. J. Ch. 823. gj 1826. (') Woodhouse v. Walker (1880) (r) Twy cross v. arant (1878) 4 5 Q. B. Div. 404, 49 L. J. Q. B'. 0. P. Div. 40, 45, 48 L. J. O. P. 609. 1; Hatchard v. Meffe (1887) 18 (0 Jenks v. Visommt fllifden Q. B. D. 771, 56 L. J. Q. B. 397, [1897] 1 Ch. 694, 66 L. J. Ch. 338. P.- 5 66 PERSONS AFFECTED BY TORTS. Nothing in these statutes affects the case of a personal injux^ causing de.ath, for which according to the maxim there is no remedy at all. It has been attempted to maintain that damage to the personal 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 " 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 (u). Railway accidents, towards the middle of the nineteenth century, brought the hardship of the common law rule into prominence. A 'man who was maimed or reduced to imbe- cility hy the negligence of a railway company's servants might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell's Act (9 & 10 Vict. c. 93, A.D. 1846), a statute extremely characteristic of English legislation (w) . Instead of abolishing the barbarous rule which was the root of the mischief complained of, it created a new and anomalous kind of right and remedy by way of exception. It is entitled " An Act for compensating the Families of Persons killed by Accidents": it confers a right of action on the personal representatives of a person (u) Pulling v. its division into p. 213, 117 E. R. 659. LORD Campbell's act. 69 for whose benefit the right is created) must be shown; they cannot maintain an actio,n for nominal damages (ff); nor recover what is called solatium in respect of the bodily, hurt and suffering of the deceased, or their own affliction (h) ; they must show "a reasonable expectation of pecuniary bene- lit, as of right oir otherwise," had the deceased remained alive. But a legal right to receive benefit from him need not be shown (j), and it is not necessary that he should have been actually earning anything or contributing to the sup- port of the plaintiff in his lifetime (k). Thus the fact that a grown-up son has been in the oon- stant habit of making presents of money and other things to his parents, or even has occa-sionally helped them in bad times (Z), is a ground of expectation to be taken into account in assessing the loss sustained; and the loss of service gra- tuitously rendered by the deceased is sufficient damage to support the action (m). Funeral and mourning expenses, however, not being the loss of any benefit that could have been had by the deceased person's continuing in life, are not admissible (n). By statute (o), insurance moneys paid (j?) Duckworth v. Johnson [1915] 1 K. B. 627, 84 L. J. K. B. (1859) 4 H. & N. 653, 29 L. J. Ex. 918. 25, 118 R. R. 667. («) Bdlton v. S. E: R. Co. (A) BlaU V. Midland B. Co. d^SS) 4 0. B. N. S. 296, 27 L. J. (1^52) 18 Q. B. 93, 21 L. J. Q. B. ^J/- .227, lU R. R. 726, oWy 233, 88 R. R. 543. In Scotland following F™«;H» v. ^. ^iS. it is otherwise: 1 Macq. 752 n. Co. not^ (0, above. See further as to the proper directions to (j) Franklin v. S. E. R. Co. .^ ju^y^ Rowley v. L. ^ N. W. (1858) 3 H. & N. 211, 117 R. R. s, Co., Ex. Oh. (1873) L. R. 8 658. Ex. 22i. (k^ Taif Vale R. Co. v. Jenkins (») Fatal Accidents (Damages) [1913] A. O. 1, 82 L. J. K. B. 49. Act, 1908, 8 Edw. VII. c. 7. The rather minute distinction taken in (i) Eetherington v. N. E. 2i. Q^and Trunk R. of Canada v. Co. (1882) 9 Q. B. D. 160, 51 j^,,„,„y^ (iggg) 13 App. Oa. 800, L. J. a. B. 495. 58 L. J. P. O. 1, is therefore not (;n) Berry v. Ilumm # Co. appliea,ble here. 70 PEKSONS AFFKCTED liY TORTS. or payable on the death of the deceased are not to be taken into account in assessing damages. The interests conferred by the Act on the several bene- ficiaries are distinct. It; is no answer to a claim on behalf of some of a man's children who are left poorer that 0,11 his children, taken as an undivided class, have got the whole of his property (p). It is said that the Act does not transfer to representa- tives 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). Accordingly the representative is not bound by a special statutory limitation imposed on his predecessor's common law right of action (r). Nevertheless the cause of action is so far the same ' that if a person who ultimately dies of injuries caused bj a wrongful act or neglect has accepted satisfaction for them in his lifetime, an action under Lord Campbell's Act is nob afterwards maintainable (s). For the injury sued on must in the words of the Act, be " such as "would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof: " and this must mean that he might immediately before his death have maintained an action, which, if he had already recovered or accepted compensation, he could not do. In Scotland, as we have incidentallj seen, the surviving' kindred are entitled by the common law to compensation in these cases, not only to the extent of actual damage, but by (p) Pym V. (?. N. n. Co. (?) 18 Q. B. at p. 110. (1863) 4 B. & S. 396, 32 L. J. 0) Sniish Columbia Electric R. Q. B. 377, 129 B. E. 778. The Co.'s case, p. 67, n. (6), above, deceased had settled real estate on (s) Read v. G. E. R. Co. (1868) his eldiest son, to whom otheri L. R. 3 Q. B. 555, 37 L. J. Q. B. estates also passed as heir-at-law. 278. FOLLOWING PROPERTY. 71 way of solatium. In the United States there exist almost everywhere statutes generally similar to Lord Campbell's Act; but they differ considerably in details from that Act and from one another. The tendency seems to bo to confer on the survivors, both in legislation and in judicial conr struction, larger rights than in England. In one class of cases there is a right to recover against a wrong-doer's estate, notwithstanding the maxim of actio personalis, yet not so as to constitute a formal exception. When it comes to the point of direct conflict, the maxi'm 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 " (t). Or, as Bowen L. J. more fully expressed it, the cases under this head are those " in which property, or the proceeds or value of property, belonging to another, have been appro- priated by the deceased person and added to his own estate or moneys." In such cases, inasmuch as the action brought by the true owner, in whatever form, is in substance to recover property, the action does not die with the person, but " the property or the proceeds or value which, in the lifetime of the wrong-doer, could have been recovered from him, can be traced after his death to his assets " (by suing) the personal representatives) " and recaptured by the right- ful 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 '(«<•)• (i) IlamUy v. Trott, 1 Cowp. speet of an act of their testator in 37g_ his L'fetime in any form of action (m) The technical rule was that in which the plea wa? not guilty: executor.^ could not be sued in i«- Ilamhly v. Trott, 1 Cowp. 37.5. 72 PERSONS AFTECTED BY TOKTS. 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, anH 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 pr the surface of the ^ound consequent Oin A.'s w.orkings (x). 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 (?/) A. dies. B. has no cause of action against A.'s representatives, for there has been no specifio benefit to A.'s estate, only a wrong for which B. might in A.'s lifetime have recovered unliquidated damages (z). Th« like law" holds of a director of a company who has committed himself to false representations in the prospectus, whereby persons have been induced to take shares, and have acquired a right of suit against the issuers. If he dies' before or pending such a suit, his estate is not liable (d). In short, this right against the executors or administrla- tors of a wrong-doer can be maintained only if there ia " some beneficial property or value capable of being m'casured, followed, and recovered " (&). For the rest, the dicta of Sir Greorge 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. (x) Phillips V. Romfraij (1883) (?/) 3 & 4 Will. IV. o. 42, p. 65, 24 Ch. Div. 439, 454, 52 L. J. Ch. above. 833. The authorities are fully (z) Kirk v. Todd (1882) 21 Ch. examined in thd jadg-meint of Div. 484, 52 L. J. Ch. 224. Bowon and Cotton L. JJ. As to (a) Peelt v. Qumeij (1873) L. R. allowing interest in such cases, see 6 H. L. at p. 392. Phillips V. Komfraij [1892] 1 Ch. (b) 24 Ch. D. at p. 463. 465,61 L. J. Ch. 210, C. A. LIABILITY FOR OTHERS' ACTS. 73 2a. — Assignment. Rights of action in tort are not assignable (o). 3. — Liahilittj for the Torts of Agents and Servants. Whoever cominits a wrong is liable for it himself. lb is no excuse that he was acting, as an agent or servant, on behalf and for the benefit of another {d). But that other miiy also well be liable: and in many cases a man is held answerable for wrongs not committed by himself. The rules of general application in this kind are those concerning the liability of a principal for his agent, and of a master for his S'orvant. Under certain conditions responsibility goes farther, and a man may have to answer for wrongs which, as regarHs the immediate cause of the damage, are not those of teither his agents or his servants. Thus we have cases 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 onoe established, the question is not by whose hand an unsuccessful attempt was made, whether that of the party himself, or his servant, or of an " independent contractor " (e), but whether the duty has been adequately performed or not. If it has, there is nothing more to be considered, and liability, if any, must be sought in some other quarter (/). If not, the non-performance in itself, not the causes or conditions of non-performance, is the ground of liability. Special duties created by stature, as conditions (c) This really does not need obligation on the agent or servant authority, but see, if required, to commit or assist in. the com- Befries v. Milne [1913] 1 Ch. 98, mitting of fraud," or any other 82 I/. J. Ch. 1, O. A. wrong. (d) Cullen v. Thomson's Trus- (e) The distinction will be ex- teas and Kerr (1862) 4 Macq. 424, plained below. 432, 9 Jur. N. S. 85, 134 R. E. (/) See Sijams v. Webster 763. " For the contract of agency (1868) Ex. Ch. L. E. 4 Q. B. 138, or service canfiot impose any 38 L. J. Q. B. 21. 1 4 PERSONS AFFECTED BY TORTS. attached to the grant of exceptional rights or otherwise, afford the chief examples of this kind. Here the liabllitjyi attaches, irrespective of any question of agency or personal negligence, if and when the conditions imposed by the Legis- lature are not satisfied (g). There occur likewise, in special circumstances, duties of this kind imposed by the common law. Such are the duties of common carriers, of owners of dangerous animals or other things involving, by their nature or position, special risk of harm to their neighbours; and such, to a limited extent, is the duty of occupiers of fixed property to 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, begin- ning with the mildest: (i) For oneself and specifically authorized agents (this holds always), (ii) For servants or agents generally (limited to course of employment), (iii) For both servants and independent contractors (duties as to safe repair, &c.). (iv) For everything but vis major (exceptional: some- cases of special risk, and, anomalously, certain public occupations). Apart from the cases of exceptional duty where the 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 particular ^vl•ong: (ff) Gray v. Pullen (1864) Ex. C. A.; cp. Penny v. Wimbledon Cli. 5 B. & S. 970, 34 L. J. Q. B. Urban Cou-noil [1899] 2 Q. B. 72, 256, 136 R. R. 833; Bardaher v. HoUiday v. National Telephone Idle District Council [1896] 1 Co., il>. 392; 68 L. J. Q, B. 704, Q. B. 335, 65 L. J. Q. B. 363, 1016, both in C. A. LIABlLtl'Y FOU OTHKRS' ACTS. 75- (2) As standing to the other person in a relation making" him answerable for wrongs committed by that per- son in virtu© of their relation, though not speci- ficiallj authorized. The former head presents little or no dilEculty. The latter includes considerable difficulties of principle, and is often complicated with troublesome questions of fact. It scarce needs authority to show that a man is liable for wrongful acts which have been done according to his- express command or request, or which, having been done on his account and for his benefit, he has adopted as liia own. " A trespasser mlay be not only he who does the act, but who commands or procures it to be done . . . Tvhbi aids or assists in it ... or who assents afterwards " {h). This is not the less so because the person employed to do an unlawful act may be employed as an " independent contractor," so that, supposing it lawful, tlie employer would not be liable for his negligence about doin^ it. A sjas company employed a firm of contractors to break open laj public street, having therefor no lawful authority or excuse : the thing contracted to be done being in itself a public nuisance, the gas company was held liable for injury causedl to a foot passenger by falling over some of the earth and stones excavated and heaped up by the contractors li). A point of importance to be noted in, this connexion is that onlr such acts bind a principal by subsequent ratification as were done at the time on the principal's behalf. What is don© by t|ie immediate actor on his own account cannot be effec- tually adopted by another; neither can an act done in the name and on behalf of Peter be ratified either for gain or (A) De Grey C. J. in BarJcer v. (») Ellis v. Sheffield Gas Con- Braham (1773) 2 W. Bl. S&e, svmers Co. (1853) 2 E. & B. 767,. Bigelow L. C. 235. 23 L. ,1. Q. B. 42, 95 R. R. 792. 76 PERSONS AFFECTED BY TORTS. ior loss bj John. " ilatum quis habere non potest, quod ipsius nomine noai est gestom " (k). The more general rule governing the other and more diffi- cult branch of the subject was expressed by Willes J. in ,a judgment which may now be regarded as a classical a,uthority. " The master is lapswerable for every such wrong of the servant or agent as it committed in the course of the service and for the master^s benefit, though no express com- mand or privity of the master be proved " (Z). Some difficulty has ajisen from the use in this judgment of the words "for the master's benefit." It is clear that actual benefit need not be shown to have accrued to the master. But it is not so clear in what cases it is material that the servant intended the master's benefit; in many it •certainly is not. On principle there seems to be a con- siderable distinction between the positions of a person dealing with an agent .as representing the principal in the way of his business, and in reliance on the agent's ostensible autho- rity, and of a stranger who happens to be injured by the servant's want of caj-e in doing something attended with more or less risk to the public. In the former class of cases it is now held that even if the agent has abused his authority for his own purposes- in a transaction of an authorized class the principal is bound. A solicitor is liable to a client from whom his managing' •clerk has fraudulently taken a conveyance to himself, under (it) Wilson v. Tumman (1843) 6 The main point of the decision ia Jilan. & Gr. 236, 64 B,. B. 770; and that fraud is herein on the same Serjeant Manning's note, 6 Man. footing- as other -mrongs: of which '&, G: 239, 64 E. B. 773. in duo course. On the facts there was not, nor could be, anj' ques- (t) BaitvioJc. V. English Joint tion of the bank manager having .Stock Bank (1867) Ex. Ch. Z,. E. .acted for any private end of his ■2 Ex. 259, 265,, 36 L. J. E.f . 1,47. own. master's responsibility. 77 the pretence of effecting a sale advised by himself for that very purpose (m). So the House of Lords has decided not- withstanding a formidable show of authority for a literal' unqualified reading of Willes J.'s text. The clerk is indeed* not authorized to be fraudulent either for his employers benefit or for his own, but neither is he authorized to be negligent; the employer cannot be bound by his eervanfs blunder or misdirected zeal and excused if the servant adds the delinquency of cheating the employer himself as well as the client (ji). Under the other head, where the injury is, as regarda- the sufferer, merely casual, it is evident that so long as the act complained of was done in the usual course of [employ- ment the servant's intention is immaterial. Probably he had no specific intention, and was thinking mainly, if at all, of his own interest in getting through the work. Eut we shall meet presently with a somewhat rare .class of cases- in which the manifest facts axe ambiguous, and therei is a question whether the servant was acting from misguided' zeal for the business or some extraneous motive pf his own. Here the intention, being found as a fact, ,will turn the., scale (o). JSTothing in the recent authorities appears to affect this, nor does it seem inconsistent with the rule established^ for more normal cases. (m) Lloyd v. Grace Smith f Co. Willes J. would have agreed with- [1912] A. C. 716, 81 L. J. K. B. the Plouse of Lords. lie might 1140 reversing tlie majoriby judg- have said that in these cases the ment of the C. A. Intermediate remedy is on a. contract or war- autliorities and dicta are critically ranty, implied in the nature of the discussed. But it is still the law transaction, but not in tort. But that a servant's trespass wholly, in Armory v. Delamirie, 1 Sm. outside the scope of his employ- L. C. 356, where the action was ment will not make the master in trover, it does not seem that the- Uahle: Joseph Sand, Ztd.v. Craiff fraudulent apprentice either in- ri919] 1 Ch. 1, 88 L. J. Ch. 45, tended or procured any profit to. C. A. his master. («) It is not so clear that (o) P. 94, below. 78 PERSONS AFFECTED BY TORTS. No reason for the rule, at any rate no satisfying one, is 'Commonly given in our books. Its importance as to agents outside a man's household belongs altogether to the modern law, and it does not seem to be illustrated by any earl^, authority (p). Blackstone (i. 417) is short in his state- .ment, and has no otlier reason to give than the fiction of an "implied command." It is currently said, Respondeat superior, which is a dogmatic statement, not an explanation. It is also said, Qui facit p,er alium facit per se ; but this is in terms applicable onjy 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 choos- ing fit servants; but if this were the reason,, a master could •discharge himseK by showing that the servant for whose wrong he is sued was chosen by him with due care, and' was in fact generally well conducted and competent: which is certainly not the law. A better account was given by Chief Justice Shaw,, of Massachusetts. "This rule," he said, "is obviously founded on the great principle of social duty, that every man in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it " (g). This , (p) Joseph Brown Q.C. in evi- jectured that this kind of official •dence before Select Committee on responsibility had something to Employei-s' Liability, 1876, p. 38-; do witli the establishment of the Brett L. J., 1877, p. 114. See general rule. ■ca.se.s collected by Wigmoro, {q) Farwell v. Boston and Essays in Anglo-American Legal Worcester Railroad Corporation History, iii. 521 sqq. A sort of (1842) 4 Met. 49, and Bigelow exposition of a sheriff's liability L. C. 688. The judgment is also for the acts of his deputy may reprinted in 3 Macq. 316, and "be seen in Y. B. 5 Ed. IV. (Long in 149 R. E. 262. So, too, M. •Quinto), p. 5. It may be con- Sainctelette, a modern Continental master's responsibility. 79 IS, indeed, somewhat too widely expressed, for it does not m terms limit the responsibility to cases where at least negligence is proved. But no reader is likely to suppose that, as a general rule, either the servant or the master can; be liable where there is no default at all. And the .true principle is otherwise clearly enounced. I am answerable for the wrongs of my servant or agent, not because he is; authorized by me or personally represents me, but because he is about my affairs,, and I am bound to see that mjy- affairs are conducted with due regard to the safety of others. Some time later the rule was put by Lord Cranworth in a not dissimilar form: the master " is considered as bound to guarantee third persons against all hurt arising from the •carelessness " — this of course is not exhaustive — " of him- self or of those acting under his orders in the course of hisi business " (r). The statement of Willes J. that the master " has put the agent in his place to do that class of acts " is also to be noted and remembered as a guide in many of the questions that arise. A just view seems to be taken^ though arti- ficially 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 " (s). The rule, then (on whatever reason founded), being that a master is liable for the acts, neglects, and defaults of his writer on the subject, well says: fioult to refer the rule to any " La. responslbilitfi du fait principle of natural justice. d'autru) n'est pas nne fiction in- / ^ „ . , -aii n , ^ , , . .J. r't.,^ (O Barton s Hill Coal Co. v. veutee par la loi P°f ^«_f e«^ Reid (1858) 3 Maeq. 266, 283, HI une exigence de I'ordre social: ^ ' R. E. 896, 902. (s) TuhervilU Phil. bk. 3, 0. 11) found it dif- 17th century) 1 Ld. Raym. 264. De la Responsabilitfi et dc la Garantie, p. 124. Paley (Mor. (s) Tuherville v. Stamps (end of 80 PERSONS AFFECTED BY TORTS. servants in the course of the servioe, we have to deiinfe^ further — 1. Who is a servant. 2. What acts are deemed to be in the course of servioe. 3. How the rule is affected when the person injured ii- himself a servant of the same master. 1. As to the first point, it is quite possible to do work for a man in the popular sense, and even to be his agtenb for some purposes^ without being his servant. The rela- tion of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to thier workman the end of his work, but directs or at any moment may direct the means also,, or, as it has been put, " retainiS) the power of controlling the work"(i); a servant is a. person subject to the command of his master as to the m'anner in which he shall do his work (w.) ; and the master is liaTjle; for his acts„ neglects, and defaiults, to the extent to be speci- fied. An independent contractor is one wTao undertakes to< produce a given result, but so that in the actual execution of the work he is not under the order or control of the person; for whom he does it, and may use his own discretion in things not specified beforehand. For the acts or omissions of such a one about the performance of his undertaking his employer is not liable to stranger^, no more than the buyer of goods is liable to a person who may be injured by the careless handling of them by the seller or his men in the course of delivery. If the contract, for example, is to build a wall, and the builder " has a right to say to the employer, ' I will agree to doit, but I shall do it after my own fashion; I shall (i!) Crompton J., Sadler v. Hen- (u) Per Bram-well I,. J., Vewens loci: (1855) 4 E. & B. 570, 578, v. :Noalies (1880) 6 Q. B. Div. at 24 L. J. Q. B. 138, 141, 99 K. II. p. 532, 50 L. J. Q. B. 132. 633,625. ■' ■ ' MASTER AND SERVANT. 81 begin the wall at this end and not at the other;' there the relation of master and servant does not exist, and the em- ployer is not liable " (x). "In ascertaining who ia 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 '' (i/). He who controls the work is answerable for the workman; the remoter employer who does not control it is not answerable. This distinction is thoroughly settled in our law; the difficulties that may arise in applying it are diffi- culties of ascertaining the facts (z). It may be a nice question whether a man has let out the whole of a giveji work to an " independent contractor," or reserved so mucli power of control as to leave him answerable for what is done (a). It must be remembered that the remoter employer,, if at any point he does interfere and assume specific control, ren- ders himself answerable, not as master, but as principal. (ar) Bramwell L. J., Emp. L. viewed in Ilillard v. Richardson 1877, p. 38: au extra- judici.il (Sup. Court, Mass. 1855) 3 Gray statement, but made on an occa- 349; and in Bigelow L. C. Ex- sion of importance by a great actly the same distinction appears master of the common law. to be taken under the Code (y) Wille.i J., Murray v. C'lirrie NapoK'on in fixing' the limits (1870) L. R. 6 C. P. 24, 27, 40 within whicli the very wide lan- L. J. C. P. 26. guago of Art. 1384 is to be ap- (z) One comparatively early plied: Sainotelette, op. cit. 127. case, Bush v. Steinman (1799) 1 (a) Pendlehury v. Grennhalijh B. & P. 404, disregards the rule; (1875) 1 Q. B. Div. 36, 45 L. J. but that case has been repeatedly Q. B. 3, differing from the view of commented on with disapproval the same facts taken by the Court (see Rcedie v. L. S; y. W. E. Co. of Queen's Bench in Taylor v. (1849) 4 Ex. 244, 20 L. J. Ex. 65, Greenhalgh (1874) L. R. 9 Q. B. 80 R. R. 541), and is not now law. 487, 43 L. J. Q. B. 168. See the modern authorities well re- P. — T. 6 82 PERSONS AFFECTED BY TORTS. He makes himself " dominus pro tempore." Thus the hirer of a carriage,, driven by a coachman, who is not the hirer's servant but the letter's, is not, generally speaking, liable for harm done by the driver's negligence (6). But if he orders, or by words or conduct at the time sanctions, a, speciifio act of rash or careless driving, he may well be liable (c). Rather slight evidence of personal interference has been allowed as sufficient in ithis class of cases (d). Conversely an owner who has not formally deprived him- self of possession or control, and who continues in fact in a position to exercise it, will not easily escape being ajiswer- able for the acts of a temporary delegate or volunteer (such as a companion on a drive whom the owner of the vehicle allows to take charge, himself being present (e). It is doubtful whether a servant has any authority implied by law to delegate his duty to a stranger, even in case of sudden necessity (/), so as to make his employer liable for that stranger's acts and defaults. At all events he has not such authority where it is possible to communicate with (6) Even if the driver was se- man was found by the stable- lected by himself: Qimrman v. keeper: Jones v. ScuUard [1898] 2 Burnett (1840) 6 M. & W. 499, Q. B. 563, 67 L. J. Q. B. 895. 55 R. R. 717. So where a vessel (c) McLaughlin v. Pry or (1842) is hired with its crew: Dalyell (v. 4 Man. & G. 48, 61 R. R. 455. Tijrer (1858) E. B. & E. 899, 28 Hirers of motor-cars should b«ar L. J. Q. B. 52, 113 R. R. 939'. this in mind. So where a contractor finds horses (d) lb. , Burgess v. Gray (1845) and drivers to draw wateringf-carts 1 O. B,. 578, 14 L.' J. O. P. 184, for a municipal corporation, the 68 R. R. 769. It is difScult in driver of such a cart is not the either ease to see proof of more servant of the corporation: Jones than adoption or acquiescence. V. Corporation of Liverpool (1885) Cp. Jones v. Corporation of Liver- 14 Q. B. D. 890, 54 L. 3. Q. B. pool (1885) 14 Q. B. D. at 345; cp. Little v. Hackett (1886) pp. 893-4, 54 L,. J. Q. B. 345. 116 U. S,. at pp. 371-3, 377. (e) Samson v. Aitchison [1912] Otherwise where the owner o'f a A. C. 844, 82 L. J. P. C. 1. caiTiage and horses kept them at a (/) See Houghton v. Pilkington livery stable, and only the coach- [1912] 3 K. B. 308. MASTER AND SERVANT. 83 the employer {g). But a servant may well make the master liable by allowing an unuiuthorized person to take charge in his presence: for it is his duty to keep control and exclude incompetent meddling while he is there (h). One material result of this principle is that a person who is habitually the servant of A. may become, for a certain time and for the purpose of certain work, the servant of B.; and this although the hand to pay him is still A.'s. The owner of a vessel employs a stevedore to unload the cajgo. The stevedore employs his own labourers; among other men, some of the ship's crew work for him by arrange- ment with the master, being like the others paid by the stevedore and under his orders. In the work of unloading these men are the servants of the stevedore, not of the owner (i). There is no "common emjaloyment " between the stevedore's men and the seamen on board (/c). But where the habitual employer lets himself out, so to speak, along with his servant, and retains the immediate aontrol of the work, he continues to be the responsible principal (l). (ff') Gwilliam v. Twist [1895] 2 actually paid by the owner's ag^ent Q. B. 84, 64 L. J. Q. B. 474, C. A. and his wages deducted in account A fortiori the master is not liable with the stevedore, which of course where control of his property is makes no difference in principle, assumed, without either authority Cp. Wild v. Waygood [1892] 1 or necessity, by a servant employed Q. B. 783, 61 L. J. Q. B. 391, C. A. by him for other purposes: Beard (Jc) Cameron v. Nyatrom (J. O. V. London General Omnibus Co. from N. Z.) [1893] A. C. 308, [1900] 2 Q. B. 530, 69 L. J. Q. B. 62 L. J. P. C. 65; op. Union 895, C. A. (conductor driving omni- Steamship Co. v. Claridge [1894] bug between regular journeys). A. C. 185, 63 L. J. P. O. 56. So (■/;) liicTcetts v. Thos. Tilling, hospital nurses assisting at an Ld. [1915] 1 K. B. 644, 81 L. J. operation under the direction of K. B. 342, C. A. (omnibus driver the operating surgeon are not for returning from journey allowed that purpose servants of the conductor to drive), see the judg- governing body of the hospital: ment of Pickford L. J. Hilly er v. St. Bartholomew's (i) Murray v. Currie (1870) Hospital [1909] 2 K. B. 820, 78 L. B. 6 C. P. 24, 40 L. J. C P'. L. J. K. B. 958, C. A. 26 In this case the man was (I) Waldoch v. Win/leld [1901] 6(2) 84 PERSONS AFFECTED BY TORTS. Owners of a colliery., after partly sinking a shaft, agree with a contractor to finish the work for them, on tlie terms, among otTiers, that engine power and engineers to work tlie engine are to be provided by the owners. The engine that has been used in excavating the shaft is handed over accord- ingly to the contractor; the same engineer remains in charge of it, and is still jaid 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 {m). But where iron-founders execute specific work about the structure of a new building under a contract with the archi- tect, and without any contract with the builder, their work- men do not become servaints of the builder (n). It is proper to add that the " power of coi.'trolling the work " which is the legal criterion of the relation of a master to a servant 'does not necessarily mean a present and physical ability. Shipowners are notoriously answer- able for the acts of the master, though done under circum- stances in which it is impossible to communicate with the owners. It is enough that the servant is bound to obey the master's directions if and when communicated to him. The legal power of control is to actual supervision what in the doctrine of possession the intent to possess is to physical "detention. But this much is needful: therefore a compul- sory 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 2 K. E. 596, 70 L. J. K. B. 925, 46 L. J. 0. P. 283. See also C. A., differing with the Oourt Donovan v. Zainff [1893] 1 Q,. B. below on the construction of the 629, 63 L. J. Q. B. 25, C. A. contract. («) Johnson v. Lindsay [1891] (m) Sowrke v. White Moss Col- A. C. 371, 66 L. T. 97. liery Co. (1877) 2 C. P. Div. 205, MASTKR AND SERVANT. 86 exemption pf the owner from liability for -such a pilot's acts is but in affirmance of the common law (o). The relation of master and servant does not exist between superior and subordinate officers of a public department under the Crown. They are all servants of the King (though not in the ordinary relation of mlaster and servant so as to found a claim against the Crown on petition of right for wrongs committed by them) (p) agid one of them is not the servant of another. It might be otherwise by statute, but an inten- tion to impose the personal liability of an employer on the Postmaster-General or any other head of a department will not be inferred without plain words to that-effect (q). In- corporation makes no difference to the rule that servants of the Crown cannot be sued in their official capacity (r). 2. Next we have to see what is meant by the course of service or employment. The injury in respect of which a master becomes subject to this kind of vicarious liability may bo caused in the following ways: (a) It imay be the natural consequence of something being done by a ser\-ant with ordinary care in execution of tlie master's specific orders. (b) It may be due to the servant's want of care in carry- ing on tlie work or business in which he is em- ployed. This is the commonest case. (o) Merchant Shipping Act, Q. B. 211, C. A. 1894, s. 633; The Halley Cl»6S) {p) Tobin v. Beg., 16 C. B. L. R. 2 P. O. at p. 201. And N. &. 310, 319, 139 E. E. at p. 520. see Marsden on Collisions at Sea, (?) Bainbridge v. Postmaster- 5th ed. ch. 3. On the other hand General [1906] 1 K. B. 178, 75 there may be a statutory relation L. J. K. B. 366, C. A. And see which does resemble that of Prof. Harrison Moore, " Liability master and servant for the purpose for Acts of Public Servants," of creating a duty to the public: L. Q. R. xxiii. 42. King V. London Improved Cab Co. (») lioper v. Commissioners of (18S9) 23 Q. B. Div. 281; Keen v. Works [1915] 1 K. B. 45, 81 L. J. Henry [1894] 1 Q. B. 292, 63 L. J. K. B. 219. 86 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. Let ,us take these heads in order. (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 liable for the natural consequences of his orders, even though he wished to avoid them, and desired his servant to avoid them. Thus, in Gregory v. Piper (s), a right of way was disputed between adjacent occupiers, and the one who resisted the claim ordered a labourer to lay down rub- bish 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 dis- claim responsibility for the natural consequences of what he does himself . (b) Then comes the case of the servant's negligence in the performance 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 (s) 9 B. & C. 591, 33 R. R. 268 (1829). COURSE OF EMPLOYMENT. 87 question of the master's liability can be entertained. As- suming 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. lu the latter case the master is not liable. " If the servant, instead of doing that which he is employed to do, does sometliing 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 servant in doing it" (t). 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, ho strikes but injudiciously, and in order to extricate himself from a diffi- culty, that wiU be negligent and careless conduct, for which the master will be liable, being an act done in pursuance ol the servant's employment " (w) . Whether the servant is really bent on his master's affairs or not is a question of fact, but a question which may be troublesome. Distinctions are suggested by some of the re- ported cases wliich 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. StiU. less will the servant cease to be about his master's business if he is acting by the order of a superior fellow-servant whom he is generally bound to obey, and that order is in fa,ct though not to his knowledge unauthorized (a;). "But where (t) Maule J., Mitchell v. Crass- & Aid. 590, 23 K. E. 407. tveller (1853) 13 C. B. 237, 22 (x) Irwin v. Waterloo Taxiaab L. 3. C. P. 100, 93 E. E. 517. Co. [1912] 3 K. B. 588, 81 L. J. («) Croii V. Alison (1821) i. B. K. B. 998 (general manager of 88 PERSONS AFFECTED BY TOETS. there is not merely deviation, but a total depa^rture from the course ol; the master's business, so that the servant may be fiaid to be '" on a frolic of his own " {y), the master is no longer answerable for the servant's conduct. A few modern eases cm either side of the line will illustrate this distinction. Its importance is not confined to the law of torts, but extends to those cases where a man may be liable under a contract for the negligence of his servants {z). In Whatman v. 'Pearson (a), 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, liappened to live hard by. Contrary to his instructions, he went home to dinner, and left the horse and cart unattended at his door; the horse ran away and did dama^'e to the plaintiff's railings. A jury was held wa,rranted in finding that the carman was throughout in the course of his employ- ment as the contractor's servant " acting within the general scope of his authority to conduct the horse and cart during the day " (6). Eng\elhart v. Farrant d Co. (c) resembled the last case except in this, that the driver left the cart for a short time the company made one of the ployment, but not if they meddle drivers take him out on business with it outside their employment: of his own in a cab which in fact Sundorsoii v. Collins [1904] 1 K. B. was appropriated by agreement to G28, 73 L. J. K. B. 358, C. A.: a particular customer). or connive at theft, whore the {y~) Parlce B., Joel v. Morison bailee is not generally answerable (1834) 6 C. & P. 503, 40 R. E. for loss by stealing: Cheshire v: 814; a nisi prius case, but often Bailey [1905] 1 K. B. 237, 74 L. J. cited witJi approval; see Burns v. K. B. 176, C. A. Poulsom (1873) L. E. 8 C. P. at (a) L. E. 3 C. P. 422 (1868). p. 567, 42 L. J. C. P. 302. (b) Byles J., L. E. 3 C. P. at (z) Thus the bailee of a, chattel p. 425. is answerable for damage done to (c) [1897] 1 Q. B. 240, 66 L. J. it by the negligence of his servants Q. B. 122, 0. A. acting in the course of their em- COURSE OP EMPLOYMENT. 89 "Nvith an eiiand-boy in it; the boj had been forbidden to interfere with the driving, but thought he would get the cart round to save a little time in driving away. He ran into a carriage in his unskilled attempt. It was held that, ■although the boy's act was mot in the course of his employ- ment, the driver's negligence in leaving the cart at his mercy was in the course of the driver's employment and made the master liable. In Storey v. AsifitiOn (d) a. carman wa|S 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 neaa" home, to turn off in another direction to call at a house and pick up something for the clerk. While the car- man 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 lon an entirely new journey on his own or his fellow-servant's account, and could not in any way be said to be carrying out his master's employment'" (e). 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 ficcount " carmot by the mere fact of the man making a pretence of (d) (1869) L. R. 4 Q. B. 47fi, employment:'' Cookburn 0. J. 38 L. J. Q. B. 223. Mitchell v. " Every step he drove was away Crassweller, cited on p. 87, above, from hia duty:" Mellor J., ibid. -was a very similar case. But it coald have made n.o differ- (e) Luah J., L. R. 4 Q. B. at enoe it' the accident had happened p. 480. It was " an entirely new as he was coming back. See the .and independent journey, which next case. had nothing at all to do with his 90 PERSONS AFFECTED BY TORTS. duty by stopping on his way be converted into a journey made in the course of his employment" (/). 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 negli- gent, having nothing to do with the purpose of his employ- ment, A. was not liable to B. {g). It does not seem diffi- cult to pronounce that lighting a pipe is not in the cou^rsie of a carpenter's employment; but the case was one of diffi- culty as being complicated by the argument that A., having obtained a gratuitous loan of the shed for his own pur- poses, was answerable, without regard to the relation of master and servant, for the conduct of f)ersons 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 exprosion.; where " it seems clear that the employer would not be held liable" (Ji). (c) Another kind of wrong which may be done by a servant in his 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 both that the servant intended to do on behalf of his master something (/) Rayner v. Mitchell (1877) 2 thought that the course of em- C. P. D. 357. ployment included ordinary care- {g) Williams v. Jones (1865) not to set the shed on fire. Ex. Ch. 3 H. & O. 256, 602, 33 (Ii) E. S. Wright, Emp. L. L. J. Ex. 297, 140 R. R. 631; diss. 187C, p. 47. Mellor and Blackburn JJ., who COURSE OF EMPLOYMENT. 91 of a kind which ho was in fact authorized to do, and that the act, if done in a proper manner, or under -the circum- stances erroneously supposed by the servant to exist, would have been lawful. The master is chargeable only for acts of an authorized 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 par- ticular he is not chargeable (^). Most of the cases on this head have arisen out of acts of railway servants on behalf of the companies. A porter whose duty is, among other things, to see that passengers do not get into wrong trains or carriages (but not to remove them from a wrong carriage) a^ks a passenger who has just taken his seat whore ho 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 wus right.' On these facts a jury may well find that the porter was acting within his general authority so as to make the company liable (k). Here are both error and excess in the servant's action: error in supposing facts to exist which make it proper to use his authority (namely, that the passenger has got into the wrong train); excess in the manner of executing his authority, even had tho 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, according to the circumstances that arise, when an act of (t) For a recent illustration, aee (k) Bayley v. Manchester, Slief- Benahy and Cadeby Main Col- field, and Lincolnshire Ji. Co. lieries v. Yorkshire Miners' Asso- (1872-3) L. B. 7 C. P. 415, 41 (nation [1906J A. C. 384, 75 L. J. L. J. 0. P. 278, in Ex. Oh. 8 0. P. K. B. 961. 148, 42 L. J. C. P. 78. .92 ' PERSONS AFFECTED BY TORTS. that class is to be done, and trusts him for the manner in which it is -done; and consequently he is held answerable for the wrong of the person so intrusted either in the manner of doing sucli iiu act, or in doing such an act under circum- stances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment " (/). Seymour v. ^Greenwood (in) 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, a'nd in so doing used exces- sive violence. Even if he were altogether mistalcen 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 offensive passengers, necessarily gave him authority to determine whether a,ny passenger had misconducted himself." Another kind of case under this head is where a servant takes on himselt to arrest a supposed offender on his em- ployer's behalf. Here it must be shown both that the arrest would have been justified if the offence liad really been com- mitted 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, liowever, " where there is a neces- sity to have a person on the spot, to act on an emergency, and to determine whether certain things shall or shall not be done, the fact that there is a jDerson on the spot who isi acting as if he liad express authority is prima facie evidence that he had authority" (re). Railway companies have ac- cordingly been held liable for wrongful arrests made by their (7) Per Willes J., Jiaijlei/ v. Ex. 189, 327, 123 R. R. 663, 568, Manchester, Sheffield, and Lincoln- Ex. Ch. (1861). ihire Jt. Co., L. R. 7 O. P. at (») Blackburn J., Moore v. p. 420. Met.op. R. Co. (1872) L. R. 8 (»0 7 H. & N. 355, 30 L. .J. Q. B. 36, 39, 42 L. J. Q. B. 23. EXCESS OF AUTHORITY BY SERVANT. 93 inspectors or other officers as "for attempted frauds on the company punishable under statutes or authorized bye-laws, and the like (o). But the master is not answerable if the servant talces on himself, though in good faith and meaning to further the master's interest, that which the master has no right to do even if the facts were as the servant thinks them to be: as where a station-master arrested a passenger for refusing- to pay for the carriage of a horse, a thing outside the com- pany's powers (p). The same rule holds if the particular sen ant's act is plainly beyond his authority, as where thi' officer in charge of a railway station arrests a man on sus- picion of stealing the company's goods, an act which i< not part of the company^s general business (q). In a case not clear on the face of it, as where a bank manager com- mences 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 — {he extent of the servant's authority is a question of fact (r). Much must depend on the nature of the matter in which the authority is given. Thus an agent intrusted with general and ample powers for the management of a farm lias been held to be clearly outside the scope of his authority in enter- ing on the adjacent owner's land on the other side of a boundary ditch in order to cut underwood which was chok- ing the ditch and hindering the drainage from the farm. (o) 74., following Ooff v. G. 3". (q) Edwards v. X. ^- X. W. 2!. R. Co, (1861) 3 E. & E. 672, 30 Co. (1870) L. E. 5 O. P. 445, 3& L. J. Q. B. 148, 122 B. E. 889. L. J. C. P. 241; cp. Allen v. L. (p) Poulton V. L. i- S. IV- M. ^ S. W. M. Co. (1870) L. E. 6 Co- (1867) L. R. 2 Q. B. o34, Q. B. 63, 40 L. J. Q. B. 53. 36 L. J. Q. B. 294; follo-syed, (r) Bank of New So^ilh Wales Ormiston v. G. 11' R. Co. [19L7] v. Owston (1879) (J. C.) 4 App. 1 K. B. 598, 86 L. J. K. B. 759. Ca. 270, 48 L. J. P. O. 25. ^4 PERSONS AFFECTED BY TORTS. 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 unwarrantable to say " that an agent intrus'ted with authority to be exer- cised over a particular piece of land has authority to commit a trespass on other land " (s). More generally, an authority cannot be implied for acts not necessary to protect the em- ployer's property, such as arresting a customer for a sup- posed attempt to pass bad money (t) . (d) Lastly, a master may be liable even for wilful and deliberate wrongs committed by the servant, provided they be done on the master's account and for his purposes, and (it would seem) are such acts as might in some circumstances be within the lawful course of employment: and this, no less than in other cases, although the servant's conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the " wilful andi malicious" wrong of his servant. If "malicious" means "committed exclusively for the servant's private ends," or "malice" means "private spite" (m), this is a correct state- ment; otherwise it is contrary to modern authority. The only material question of intention is whether the servant intended to act in the master's interest. That question, it will be observed, does not arise in the distinct class of oases we have already mentioned, where an agent, under colour of a real authority to do similar acts iq a due course o(f business, fraudulently abuses that authority for his own (s) Bolingbroke v. Swindon & 0. 543, 130 R. R. 653. For an Local Board (1874) L. E. 9 C. P. example of a trespass for which 575, 43 L. J. C. P. 575. the master was not liable, as being (<) Abrahams v. Deakin [1891] contrary to orders and committed 1 Q. B. 516, 60 L. J. Q. B. 23«, merely for tlie servant's own eon- C. A.; Hanson v. Waller [1901] venienee, see Joseph Rand, Ld. v. 1 Q. B. 390, 70 L. J. Q. B. 231. Craig [1919] 1 Ch. 1, 88 L. J. Ch. (it) See per Blackburn J., 1 H. 45, C. A. UNAUTHORIZKD ACTS OF SERVANT. 95 gain (.r\ There the ground of the principal's liability is the apparent authority on which the third person is entitled to rely; whereas in the case immediately before lis it is only the sei-vant's misdirected zeal for the master's interest that prevents his act from being a merely collateral trespass {tf). In LimfMS v. London General Omnibus Company (z), the defendant 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 rac« 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 employers were answerable for his conduct, but they were not answerable if he acted only for some purpose of his own: and this was approved by the Exchequer Chamber (a) . The driver " was employed not only to drive the omnibus, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his employment, when explained by his desire to get before the other omnibus . " As to the company's instructions, " the law is not so futile as to allow a master, by giving secret instrluctions to his servant, to discharge himself from liability " (&). The fact that the wrongful («) P. 76, above. CricJceti, 1 East, 106, 5 R. R. 518. (y) See the unsuccessful argu- Here it might have been necessary ment for the plaintiffs in British or proper to pull across tho road Mutual Banking Co. v. Cham- on some emergency, say to avoid loood Forest R. Co. (1887) 18 Ch. n collision or clear the road for a Div. 714, which now seems to have flre-engine. been cx>rreot. ('') Williams, Crompton, Willes, (z"-' 1 H. & C. 526, 32 L. J. Byles, Blackburn J.T., diss. Ex. 34, 130 E. E. 641 (1862). Wightman J. This and Seymour v. Gree.nwoid (b) Willes J., 1 H. & C. at (p. 92, above) overrule anything p. 539. to the contrary in M'Manus v. !»6 PERSONS AFFECTED BY TORTS. act is criminally punishable, if it be so, makes no difference to the master's liability (c) . ' That an employer is liable for frauds of his servant com- mitted without authority, but in the course of the service and in apparent furtherance of the employer's purposes, was established with more difficulty; for it seemed harsh to im- pute deceit to a man personally innocent of it, or (as in the decisive cases) to a corporation, which, not being a natural person, is incapable of personal wrong-doing (d). But when it was fully realized that in all these cases the maister'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 (e). So the matter is handled in our leading autho- rity, the judgment of the Exchequer Chamber delivered by Willes J. in Barwick v. EngUsh Joint Stock Bank. " With respect to the question, whether a principal is answerable for the act of his agent in the course of his master's business, and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong " (/) . (o) Di/er V. Munday [1895] 1 Co. (1834) 1 A. & E. 526, 3 L. J. Q. B. 742, 64 L. J. Q. B. 448, C. A. K. B. 165, 40 E. E. 358. ((?) This particular difficulty is (e) Even if the fraud includes fallacious. It is in truth neitiher a forgery: Shaw v. Port Philip more nor less easy to think of a Gold Mining Co. ((1884) 13 Q. B. corporation as deceiving (or being D. 103, 53 L. J. Q. B;. 369; but deceived) than as having a con- qu. whether in that case the act eenting mind. In no case can a was of an authorized class at all: corporation be invested with either Ruben v. 6-reat Fingall Consoli- rights or duties except through daiea. [1906] A. C. 439, 75 L. J. natural persons who are its agents. K. B. 843. As to the necessity once supposed (/) (1867) L. R. 2 Ex. at to exist for a servant of a cor- p. 265. As to the words '• for his poration having an authority under master's benefit," see p. 76, above, seal, see Smith v. Birmingham Gas If the decision of the C. A. in FKAUD OF SERVANT. 97 This has been more than once fully approved in the Privy Council (^f), and may now be taken, notwithstanding certain appearances of conflict Qi), to have the approval of the House of Lords also {i) . 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 (Ji). An association which is not incorporated', but is a quasi- corporate holder of property through trustees, is liable for the wrongs done by its servants in the course of their em- ploj-mcnt; such liability can be enforced in a representative action, and the funds can be reached by making the trustees British JJ/fttial Banlilnrf Co. v. Charnwood Forest R. Co. (1887) 18 Q. B. Div. 714, 56 L. J. Q. B. 449, can now be supported, it must be on the ground suggested by Boiven L. J. that the fraudulent secretary's apparent authority was ultra zlres. (ly") Mnclay v. Commercial Bank of New Brunswick (1874) L. R. 5 P. C, 412, 43 L,. J. PI. O. 31; Swire V. Francis (1877) 3 App. Ca. 106, 47 L. J. P. C. 18; Cilizens' Life Af.-ice. Co. v. Brown [1904] A. C. 423, 73 L: J. P. C. 102. (h) Adilie V. Wmtern Bank of Hcotlarxd (1867) L. R. 1 So. & D. 145, dicta at pp. 158, 166, 167. (0 Ilouldsworth v. City of Glasfjoiv Bank (1880) 5 App. Ca. 317. (k.) lb., Lord Selborne at p. 326, JjovH Hatherley at p. 331; Lord Blackburn's language at p. 339 is more cautious, perhaps for the very reason that he was a party to the decision of Banoick v. Evglish Joint Stock Bank. Shortly, the shareholder is in this dilemma: while he is a member of the com- pany, he is damnified by the allegsd deceit, if at all, solely in that he is liable as a shareholder to contri- bute to the company's debts: this liability being of the essence of a shareholder's position, claiming compensation from the company for it involves him in a. new liability to contribute to that com- pensation itself, which is an absurd circuity. But if his liability as a shareholder has ceased, he is no longer damnified. Therefore resti- tution only (by rescission of hi^ contract), not compensation, is tlia shareholder's remedy as against the company: though the fraudulent agent remains personallv liable. 7, yS PKESONS AFFECTED BY TORTS. parties. A trade union, by reason of its peculiar statutory position, could be sued in its registered name (l). But the Trade Disputes Act, 1906, has expressly exempted trade unions of both workmen and masters, and their ofScials, from the operation of this rule (m) . It is not within a text-writer's province to comment on the policy of the statute (n) or on the reasons unconnected with the science of law which led to its enactment without serious op position in either House of Parliament. The leading case of Mersey Docks Trustees v. Gibhs (o) may also be referred to in this connexion, as illustrating the general principles according to which liabilities are imposed on corporations and public bodies. There is abundant authority in partnership law to 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- 0) Taff Vale R. Co. v. Amal- Edw. 7, y,. 47, b. 4 (1).) Wlietlier gamated Soo. of Railway Servants there is any trade dispute or not: [1901J A. C. 426, 70 L. J. K. B. Vacher § Sons v. London Soo. of S05; Giblan v. National Labourers' Compositors [1912] 3 K. B. 547, Union [1903] 2 K. B. 600, 72 L. J. 81 L. J. K. B. 1014, affd. [1913] K. B. 907. A. C. 107, 83 L. J. K. B. 232. (m) " An action ag-ainst a trade (n) See a severe criticism by union, wliether of workmen or Farwell L. J. in Conway \ . IFade masters, or against any members [1908] 2 K. B. 844, 78 L. J. K. B. or officials tliereof on behalf of 14; but the House of Lords vas themselves and all other members able to put a more benignant con- of the trade union in respect of struction on the Act in this case, any tortious act alleged to have see [1909] A. C. 506, 78 L. J. been committed by or on behalf K. B. 1025. of the trade union, shall not be (o) L. R. 1 H. L. 93, 145 E. li. entertained by any Court." (6 385 (1864-6). PARTNERS. 99 ship business. Where, for example, one of a firm of solicitors receives money to be placed in a specified investment, the firm must answer for his application of it, but not, as a rule, if he receives it with general instructions to invest it for the client at his own discretion (j?) . Again, the firm is not liable if the facts show that exclusive credit was given to the actual wrong-doer (q). In all these cases 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 whjen 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 representa- tions good," which is no longer maintained anywhere (r). 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, obscurely indicated a sort of counter principle, and introduced a num- ber of minute and empirical exceptions, or rather limitations of the exceptional rule in question; while the Workmen's Compensation Act, 1897, now enlarged and superseded by the Act of 1906, took a wholly new departure as regards the (p) Partnerahip Act, 1890, ss. 10 trations in my " Digest of the Law — 12. Cp. Slair v. Bromley (1847) of Partnership," 10th ed. pp. 49 — 2 Ph. 354, 71 E. E. 213, and 52. A very peculiar case of this Cleatker v. Twisden (1883) 24 Oh. class is Marsh v. Joseph [1897] 1 D. 731, with Ilarman v. Johiism Ch. 213, 66 L. J. Oh. 128, C. A. <1853) 2 E. &. B. 61, 22 L. J. Q. B. (r) I have discussed it in Ap- 297, 95 R. B. 429. pendix T. to "Principles of (j) Ex. parte Eyre (1842) 1 Ph. Contract," 8th ed. p. 752. 227, 65 B. B. 375. See more illus- 7(2) IGO PERSONS AFFECTED BY TORTS. cases within it, but left resort to other remedies, if any, optional, and the present Act still does not covQr the same ground as the Employers' Liability Act. The old 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 de- velopment. The first evidence of any such rule is in Priest- ley V. Fowler (s), 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 rea- sonably be expected to do of himself;" that a servant has better opportunities than his master of watching and con- trolling the conduct of his fellow-servants; and that a con- trary doctrine would lead to intolerable inconvenience, and encourage servants to bo negligent. According to this there would bo a sort of presumption that the servant suffered to. some extent 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 of Massachusetts by another way, and in a judgment which is the fountain-head of all the latter decisions (t), and has been judicially recognised in England as " the most complete ex- position of what constitutes common emploj'ment " (m) . The accepted doctrine 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 him- self a servant in the same business he is not in the same (s) 3 M. & W. 1, 49 E. E. 495. (0 Fanic/l v. Sosioii and All the case actually dcciilefl wos Worcesler Roilroad Corporation that a master does not warrant to (1842) 4 Met. 49, 149 E. E. 262. his servant the sufficiency and (u) Sir Francis Jeune in The safety of a carriag-e in which he Petrel [1893] E. 320, 323. sends him out. FELLOW-SERVANTS. 101 position as a stranger. He has of his free will entered into the business and made it his own. He cannot say to the master, You shall so conduct your business as not to injur© mo by want of due caro and caution therein. For he has agreed with the master to serve in that business, and his claims on the master depend on the contract of service. Why should it be an implied term of that contract, not being an express one, that the master shall indemnify him against the negligence of a fellow-servant, or any other current risk? It is rather to be implied that he contracted with the risk before his eyes, and that the dangers of the service, taken all round, were considered in fixing the rate of payment. This is, I believe, a fair summary of the reasoning which has prevailed in the authorities. With its soundness w© 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 of the two countries uniform (x). 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 risk of 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 hoth"{y). (x) See Wilson v. Merry (1868) discretion enough to agree to the L. R. 1 So. 6c D. 326. express terms of a contract of Ci/) Erie C. J. in Tunney v. service he cannot repudiate the Midl-and R. Co. (1866) L. E. 1 implied ones any more than an C. P. at p. 296; Archibald J. used adult: Young v. Hoffmann Manu- very similar language in Lovell v. '-facturing Co. [1907] 2 K. B. 646, Howell (1876) 1 C. P. D. at 76 L. J. K. B. 993, C. A.; Cribb p. 167, 45 L. J. C. P. 387. It v. Kynoch [1907] 2 K. B. 548, 76 makes no difference that the plain- L. J. K. B. 948. tiff is an infant, for if he has 102 PERSONS AFFECTED BY TORTS. The phrase "common employment" is frequent in this class of cases. But it is misleading in that it suggests a limitation of the rule to circumstanoes where the injured servant had in fact some opportunity of observing and guard- ing against the conduct of the negligent one; a limitation rejected by the Massachusetts Court in Farwell's case, where an engine-driver was injured by the negligence of a switch- man (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 petrsons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct depart- ment of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be in the same or different departments. In a blacksmith's shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. Tn a ropewalk several may he at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight or voice, and yet acting together. " Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is ^ployed in immediate connexion with those from whose^n'egligence he might suffer, but because the implied contract of the master does not extend to in- " COMMON KMPLOYMENT." 103 demnify tlie servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied "(2)- So it has been said that " we must not over-refine, but look at the common object, and not at the common immediate object " (a). All persons engaged under the same employer for the purposes of the same business, however different in detail those purposes may be, are fellow -servants in a common employment within the meaning of this rule: for example, a carpenter doing work on the roof of an engine-shed and porters moving an engine on a turntable (&), and a chorus- singer in a theatre and the soene-shifters (c). " 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" (d). It makes no difference if the servant by whose negligence another is 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 or manager is only a servant having greater authority: foremen and workmen, of whatever rank, and however authority and duty may be distributed among them, are " all links in the same (z) Shaw C. J., Forwell v. [1909] 1 K. B. 530 [1910] A. C. JBoaton, #0. Corporation, 4 Me*. 77, 78 L. J. K. B. 452, whiot 49, 149 R. B. 262. Some learned however ia better supported on the French writers have adopted the broader ground that the plaintUE, contractual view, but with directly as a gratuitous passenger, had opposite results. accepted the risk. (a) Pollock C. B., Morgan v. (c) Burr v. Theatre Royal, Vale 0/ Neath R. Co. (1865) Ex. Drury Lane [1907] 1 K. B. 544, Ch. L. K. 1 Q. B. 149, 155, 35 76 L. J. K. B. 459, C. A. L. J. Q. B. 23. W Thesiger L. J., Charles v. (6) See last note; and cp. Taijlor (1878) 3 C. P. Div. 492, ColdricJc v. Partridge, Jones ^ Co. 498. 104 PERSONS AFFECTED BY TORTS. chain "(e). So the captain employed by a shipowner is a fellow-sei'vant of the crew, and a sailor injured by the captain's negligence has no cause of action against the owner (/). 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 work {g), and to use reasonable care to keep the premises and appliances safe (A). (e) Feltham v. England (1866) L. B. 2 Q. B. 33, 36 L. J. Q. B. 14; Wilson v. Mernj (1868) L. K. 1 Sc. & D. 326: see per Lord Cairns at p. 333, and per Jjord Colonsay at p. 345; cp. Burr v. Drury Latw, note (c), above. The French word collaborateur, which does not mean " fellow-workman " at all, was at one time absurdly introduced into these cases, it is. believed by Lord Brougham, and occurs as late as Wilson v. Merry. See further Young v. Hoffmann Manufacturing Co. [1907] 2 K. B. 646, 76 L. J. K. B. 993, C. A., where an obviously hasty nisi prius ruling compelled the Court of Appeal to restate the elements of the whole doctrine. (/) Hedley v. Finhney tf Sons' S.S. Co. [1892] 1 Q. B. 58, 61 L. J. Q. B. 179, C. A., afEd. in H. L. [1894] A. C. 222, 63 L. J. Q! B. 419. Even since the Worlf- men's Compensation Act there have been actions under the common law to wMch this rule remains applic- able: Cribb V. Kyncoh [1907] 2 K. B. 548, 76 L. J. K. B. 948. {g) Cole V. Be Trafford [1918] 2 K. B. 523, 535, 87 L. J. K. B. 1254, C. A., where authorities are collected; the case itself turned on insufBciency of evidence. It has been decided in, ith© Court of Appeal that where a servant seeks to hold his master liable for in- jury caused by the dangerous con- dition of a building where he is employed, he must allege distinctly both that tlie master knew of the danger (or with reasonable caret and reasonably diligent inspection ought to have known, see Cole v. Be Trafford, above) and that he, the servant, was ignorant of it: Griffiths v. Lortdon and St. Katha- rine Bocks Co. (1884) 13 Q. B. Div. 259, 53 L. J. Q. B. 504. But this does not seem to exltend beyond the case of appliances originally sufficient falling out of repair: Williams v. BirmingJiam Battery and Metal Co. [1899] 2 Q. B. 338, 68 L. J. Q. B. 918, C. A. Nor is the servant's know- ledge material where the cause of action is in substance personal negligence in supervision; there nothing short of a contract to take the risk will do: ib., Monaghnn V. Rhodes [1920] 1 K. B. 487, 89 L. J. K. B. 379, C. A. Cp. Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 (h) Sec next page. " COMMON EMPLOYMKNT." ]05 Attempts have been made to hold tliat 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 contractors, even without evidence that the sub-contractors' work was under the direction or control of the chief contractors. This artificial and unjust extension of a highly artilicial rule was fortunately stopped by the House of Lords ( i) . A suggestion that a servant is not liable to a fellow-servant for his own negligence in the common employment has been decisively rejected by the same authority (k). The rule of common employment is not applicable as against a person who is not working under contract, but L. J. Q. B. 340. It may be a nice question how far a managing foreman's knowledge of defects is notice to tlie employer, see Gal- lar/her ,■. Piper (1864) 16 C. B. N. S. 669, 33 L. J. C. P. 329y 139 R. R. 657. The question of personal negligence is immaterial, and the defence of common em-* ployment inapplicable, where a positive statutory duty prescrib- ing conditions of safety has been broken: Butlci- v. Fife Coal Co. [1912] A. C. 149, 81 L. J. P. 0. 97. (h) Lord Cairns, as above: to same effect Lord Wensleydale, Weems v. Mnthiesoii (1861) 4 ,Macq. at p. 227: "All that the master is bound to do is to pro- vide machinery fit and proper for the work, and to take care to have it superintended by himself or hiai workmen in a fit and proper manner.'' In STcipp v. E. C. R. Co. (1853) 9 Ex. 223, 23 L. J. Ex. 23, 96 R. E. 679, it wad said that this duty does not extend to having a sufficient number of ser- vants for the work: sed qu. The decision was partly on the ground that the plaintiff was in fact well acquainted with the risk and had never made any complaint. The duty of giving special instruction or warning about dangerous work may be delegated to a competent person: Young's case, note (e), above. But the general duty ot providing proper plant, includ- ing amendment of known defects, cannot be delegated: Toronto Pou-er Co. V. Paskwan [1915] A. O. 734, 84 L. J. O. P. 148. (i) Johnson v. Lindmy [1891] A. C. 371, 65 L. T. 97, overruUng Wiggett v. Fox, 11 Ex. 832, 25 L. J. Ex. 188, 105 R. R. 822, so far as that case could be regarded as laying down any rule of law. Cp. Cameron v. Ny/alrom (J. O.) [1893] A. O. 308, 62 L. J. P. O. 85, p. 83, above. (K) Lees v. Dunherley Bros. [1911] A. 0. 5, 80 L. J. K. B. 135. 106 PEKS0N8 AFFECTED BY TORTS. is compellable by law to obey the so-called employer's directions (l). Moreover, a stranger who gives his help without reward to a man's servants engaged in any work is held to put himself, as regards the master's liability towards him, in the same position as if he were a servant. Having of his free will (though not under a contract of service) exposed himself to the ordinary risks of the work and made himself a partaker in them^ he is not entitled to be indemnified against them by the master any more than if he were in his regular employment (to). This is really a branch of the doctrine " volenti non fit iniuria," discussed below under the title of General Exceptions. 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 (n): the partners are generally answerable for his conduct, yet cannot say he was a fellow-servant of the injured tnan. Such were the results arrived at by a number of modem authorities, which it seems useless to cite in more detail: the rule, though not abrogated, being greatly limited in application by statute. The Employers' Liability Act, 1880 (43 & 44 Vict. 0. 42), is on the face of it experimental. It was temporary, being enacted only for seven years and the next session of Parliament, and since continued from time to time; it is confined in its operation to certain specified (I) Tozeland v. West Ham ing Degg v. Midland R. Co. (1857) Vnion [1906] 1 K. B. 538, 75 L. J. 1 H. & N. 773, 26 L. J. Ex. 174, K. B. 353. 108 R. R. 116. (m) Potter V. Faulhner (1861) Qn) Ashworth v. Stanwix (1861) Ex. Oh. 1 B. & S. 800, 31 L. J,. 3 E. & E. 701, 30 L. J. Q. B. 183, Q. B. 30, 124 R. R. 755, approv- 122 R. R. 906. employees' liability act. 107 causes oif injury; and only certain kinds of servants ar& entitled to the beneHt of it, and then upon restrictive con- ditions as to notice of action, mode of trial, and lamount of compensation, which are unknown to the common law,, and with a special period of limitation. The effect is that a " workman " within the meaning of the Act is put aa against his employer in approximately the same position' as an outsider as regards the safe and fit condition of the material instruments, fixed or movable, of the master's busi- ness. He is also entitled to compensation for harm incurred through the negligence of another servant exercising super- intendence, or by the effect of specific orders or rules issued by the master or some one representing him; and there is a special wider provision for the benefit of railway ser- vants, 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 desperatei attempts to evade those parts of its language which are plain enough to common sense. The extended scope of the Work- men's Compensation Act has not wholly supplanted resort to it. The text, and references to the decisions, will be found in the Appendix (Note B). So far as the Act of 1880 goes, we have, in a matter of general public importance and 'affecting large classes ,of per- sons who are neither learned in the law nor well able to. procure learned advice, the following singularly intricate- and clumsy state of thin^. First, there is a general rule of a master's liability for his servants (itself in some sense an exceptional rule to. begin with). ' | , .108 PERSONS AFFECTED BY TOETS. Secondly, the immunity of the master where the person injured is also his servant. Thirdly, in the words of the marginal notes of the Em- ployers' Liability Act, "amendment of law" by a series •of elaborate exce23tions to that immunity. Fourthly, " exceptions to amendment of law " by pro- visoes which are mostly but not wholly re-statemenls of the common law. Fifthly, minute and vexatious regulations as to procedure in the cases within the first set of exceptions (o). The Workmen's Compensation Act, 1897, now super- seded by the Act of 1906, introduced a wholly new prin- ciple (p), which is really in the direction of compulsory insurance, though the primary liability is on the employer, •and he is left to insure or not as he thinks fit. The applica- tion ,of this principle, at first limited to the employments expressly mentioned, and extended to agricultural labourers (o) As to the question of policy, employment to which the Adb see for very full information and applies." Per Farwell L. J., ■discussion tlie evidence taken by Darlington v. Roscoe % Sons the Select Committees of the [1907] 1 K. B. 219, 230, 76 L. J. House of Commons in 1876 and K. B. 371. In practice tli« real 1877 (Pai-1. Papers, H. 0. 1876, defendant is almost always an in- 372; 1877, 28-5). And see the final suranee company. From the point report of the Labour Commission, of view of a. legislator desirous of 189d, Part II. Appendix V. reducing litigation, there are both (Memorandum on Evidence re- advantages and disadvantages about lating to Employers' Liability). this. Claims may be disputed As to foreign legislation resembling which a just employer would per- the Employers' Liability Act or the haps have allowed, but certainty Workmen's Compensation Act, see in the interpretation of the la.w Pari. Papers, 1905, Cd. 2458. will be sooner attained, or might (p) The duty created is " a be if the avidity of practitioners newly imposed statutory duty, a for a show of authority did not duty which is wholly independent choke the reports with cases really ■of any wrong-doing by the party deciding nothing whatever of to be charged, but is made by general application, statute part of every contract of WORKMEN S COMPKNSATION ACT. lOO' by an Act of 1900, also superseded, now covers all pon- tracts of service except in certain excepted cases. The reported decisions turn wholly on the provisions of the Acts and the rules made under them, and throw no light on any principle of the law of torts, the right to compensa- tion being founded on accident simply, not on negligence or any other actionable wrong; a large and increasing pro- portion of them are on minute questions of fact land evidence. Moreover, nothing short of a full account of decisions of this kind is of any practical use, and for such an account there is no room in a work like the present. For these reasons the reader is referred for detailed informa- tion to the special annotated editions of the Acts (g). (g) See Parsons on the Work- Workmen's Compensation Act, men's Compensation Act, 5tli ed. 1906, 18th ed. 1919; Chartres, 1914; Dawbarn on Employers' Judicial Interpretations of the Law Liability (with notes on Canadian relating to Workmen's Compeusa- law by A. C. Forster Boulton), tion, 1915. Many of the former 4th ed. (much enlarged) 1911; decisions are on questions which Ruegg on Employers' Liability and can no longer arise under the en- Workmen's Compensation, 8th ed. larged and sdmplified provisions of 1910; Knowles on Compensation 1906; but many of them remain for Injuries to Workmen (on the applicable or instructive. Act of 1906), 3rd ed. 1913; Willis, ( 110 ) CHAPTER IV. GENERAL EXCEPTIONS. We have considered the general principles «£ liability for ■civil wrongs. It iijow becomes needful to consider the general exceptions to which these principles are sulDJect, 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 wrongful which in their absence would be a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed tha,t ■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 of officers of justice to apply force and restrainfc in various degrees, from simple arrest to the infliction of death itself, in execution of the process and sentences of the law. Here the harm done, and wilfully done, is 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 con- ducted according to the rules agreed upon, there is no wrong and no cause of action. For the players have joined in the game of their own free will, and accepted its risks. Not that a man is bound to play football or any other rough game, Jbut if he does he must abide its ordinary chances. Here GENERAL AND PARTICULAR EXCEPTIONS. Ill 1:h:e harm done, if iwt justified (for, though in a manner unavoidable, it was not in a legal sense necessary), is never- theless excused (a). Again, defamation is a wrong; but there are certain occasions on which a man may with im- punity make and publish untrue statements to the prejudice •of anoth,er. Again, " sic utere too ut alienum non la(eda8 " 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 inows that his neighbour Will in some way be the Worse for them. Some of the principles by which liability is excluded are :applicable indifferently 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 par- ticular branch of the subject. So the rule as to " contribu- tory negligence " qualifies liability for negligence, and can be understood only in connection with the special rules determining such liability. Exceptions like those of con- sent 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 prin- ciples 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 cate- gories. An action is within certain limits not maintainable in respect of the acts of political power called " acts of state," nor pf judicial 'acts. Executive acts of lawful au'tho- («) Justification seems to be the cuse, when it is but an accident: proper •word when the harm suf- but I do not kno-w that the precise fered is inseparably incident to the di.stinction is always possible to performance of u, legal duty or the observe, or that anything turns •exercise of a common right; ex- on it. 112 GENERAL EXCEPTIONS. rity form another similar class. Then a class of acts has to be considered which may be called quasi-judicial, and which, also within limits, are protected. Also there are 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 respect of the person or the occasion . After these come exceptions which are more an affair of common right: inevitable accident, harm inevitably incident 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. It is by no means easy to say what an act of state is,. though the term is not of unfrequent occurrence. On the whole, it appears to signify — (1) An act done or adopted by the prince or rulers of a foreign independent State in their political and sovereign capacity, and within the limits of their de jactp political sovereignty; (2) more particularlj- (in the words of Sir James Stephen) (b), " an act injurious to the person or to the property of some person who is not at the time of 'that act a subject (c) of [his] Majesty; which act is done by any representative of [his] Majesty's (6) History of the Criminal time of peace, and not easily in Law, ii. 61. time of war, for it seems that an. (c) This includes aliens living in alien enemy resident here with " temporary allegiance " under the licence is under the same protao- protection of EnglisJi law: there- tion: Porter v. Freudenberg, ^c. fore an act of state in this sense [1915] 1 K. B. 857, 84 L. J. K. B. cannot take place in England in 1001, 0. A. ACTS OF STATE. 113 authority, civil or military, and is either previously sanc- tioned, or subsequently ratified by [his] Majesty " (such sanction or ratification being, of course, expressed in the proper manner through responsible ministers). Our courts of justice profess themselves not competent to discuss acts of these kinds for reasons thus expressed by the Judicial Committee of the Privy Council: — " The transactions of independent States between each other " (and with subjects of other States) " are governed by other laws than those A\liich municipal courts administer; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make " (d). A series of decisions of the Indian Supreme Courts and the Privy Council have applied this rule to the dealings of the East India Company with native States and with the property of native princes (e). In these cases the line be- tween public and private property, between acts of regular administration and acts of war or of annexation, is not always easy to draw. Most of them turn on acts of political annexation. Persons who by such an act become British subjects do not thereby become entitled to complain in muni- cipal courts deriving their authority from the British Govern- ment of the act of annexation itself or anytliing 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 («?) Secretary of State in Coim- last cited. CooJo v. Sprigg [1899] oil of India v. Kamachae Bofe A. O. 572, 68 L. J. P. O. 144, Sahaba (1859) 13 Moo. P. C. 22, professes to belong to the samra 75, 132 B. E. 7; Salaman v. Sec. class, but it is by no means easy of State, #c. [1906] 1 K. B. 613, to understand either the real 75 I/. J. K. B. 418, O. A. nature of the facts or the ratio (e) See Doss v. Secretary of decidendi of the Judicial Com- State for India in Council (1875) mittee. See L. Q. B. xvi. 1. L. E. 19 Eq. 509, and the cases P.-T. 8 114 GENERAL EXCEPTIONS. originally an excess of authority, but is afterwards ratified by the Crown. " The leading case on tliis subject is Buron v. Denman{f) . This was an action against Captain Denman, a captain in the navy, for burning certain barracoons 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 Sir James Stephen, in his History of the Criminal Law (g) . It is only necessary to add, as he did on the next page, that " as between the sovereign and his subjects there can be no such thing as Un act of state. Courts of law are established for the express purpose of limiting public autho- rity in its conduct towards individuals. If one British subject puts another to death or destroys his property by the express command of the King, that command is no pro- tection 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). The head of a department of State, however, cannot be presumed to authorize wrongs committed by subordinate officers under colour of official duty; and he will not be liable for such acts without proof (/) (1847) 2 Ex. 167, 76 R. R. , (A) EnticJc v. Carringion, 19 St. 554. Tr. 1043. {(j) Vol. ii. p. 64. ACTS OF STATE, 115 that he has in fact authorized them. An action against the Lords of the Admiralty for alleged trespass by two marines and a civil engineer, no specific act or authority of the de- fendants being shown, has been held to be misconceived (i) . 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 (k) ; 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 (Z). 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 prevented by the local executive authority from entering British territory (m) . It seems doubtful whether admission to temporary allegiance in one (i) Raleigh ■. Smith (1850) 14 JUDICIAL AJTS. 119 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 an;^'thing judicially done by him in the same cause upon the footing of that conclusion (a; . Allegations that the act complained of was done " mali- ciously and corruptly," that the 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 (b) or of an inferior (c) court, or any judicial officer (d) . There are two cases in which bj- 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 vacation time (e), and if he refused to seal a bill of exceptions (/). The rule of immunity for judicial acts is applied not only to judges of the ordinary civil tribunals, but to members of naval and military courts-martial or courts of inquiry con- stituted in accordance with military laAv and usage (g) . It (a) Kemp v. Neville (1861) 10 ((/) This may be collected from C. B. N. S|. 523, 31 L. J. O. P. such authorities as Dawkins v. 158, 128 E. R. 815 (an action Lord Mokehy (1875) L. R. 7 H. L. against the Vice-Chancellor of the 744, 45 L. J. Q. B. 8; Dawkins v. University of Cambridge), and Prince Ediward of Saxe Weiinar authorities there cited. (1876) 1 Q. B. D. 499,, 45 L. 3. (b) Fray v. BUcTcburn (1862) 3 Q. B. 567, which, however, go to B. & S. 576, 129 R. E,. 463; some extent on the doctrine of Anderson v. Gorrie [1895] 1 Q. B. "privileged communications," a 668 71 L. T. 382, O. A. doctrine wider in one sense, and (c) Scott V. Stansfidd (1868) more special in another sense, than L. R. 3 Ex. 220, 37 L. J. Ex. 155. the rule now in question. Partly, (cT) Botiomley v. Brougham also, they deal with acts of autho- [1908] 1 K. B. 584, 77 L. J. K. B. rity not of a judicial kind, which 311 (report of OfSeial Receiver will be mentioned presently. As under Companies Winding-up Act, regards judicial acts it seems in- jggO). credible that such persons should (e) 31 Car. II. c. 2, s. 9. be in a worse position than judges (/) 13 Edw. I. (Stat. Westm. 2) of inferior civil courts. c. 31, cf. Blackstone, iii. 372. 120 GENERAL EXCEPTIONS. 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 {h). He would be liable for a corrupt ,or partisan exercise of his office; but if he really does use a judicial discretion, the Tightness or competence of his judgment cannot be brought into question for the purpose of making him personally liable. The doctrine of our courts on this subject appears to be fully and uniformly accepted in the United States (i). 3. — 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 (fc) . Were not this the rule, it is evident that the law could not be enforced at all. But a public officer m.ay err by going beyond his authority in various ways. When this happens (and such cases are not (A) Fappa 1. Rose (1872) Ex. Chambers v. Goldthorpe [1901] 1 Ch. L. Jft. 7 O. R 525, 41 L. j;. K. B. 624, 70 L. J. K. B. 482, O. P. 187 (broker authorized by C. A. (architect nominatod to sale note to decide on quality of certify what was due to contractor ; goods); Tharsis Sulphur Co. v. diss. Homer L. J. in the latter Lofins (1872) L. B. 8 C. P. 1, case). 42 L. J. 0. P. 6 (average adjuster (s) Cooley on Torts, Ch. 14; nominated to ascertain proportion Eiero, 171 sqq. of loss as between ship and cargo) ; {K) The details of this subject Stevenson v. Watson (1879) 4 belong to criminal law. C. P. D. 148, 48 L. J. P. C. 318, PUBLIC AUTHORITIES. 121 xincommoii), there are di^inctions to be observed. The principle which runs through both common law and legisla- tion in the matter is that an officer is not pro'bected from the ordinary consequence of unwarranted acts which it rested witli himself to avoid, such as using needless violence to secure a prisoner; but he is protected if he has only acted in a manner in itself reasonable, and in execution of an apparently regular warrant or order which on the face of it he was bound to obey (Z) . 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 judioe," the exemption ceases (to). A constable or officer acting under a justice's warrant is, however, specially protected by statute, notwith- standing any defect of jurisdiction, if he produces the war- rant on demand (w) . The provisions of many particular statutes which gave a qualified protection to persons acting under the statute have been superseded by the Public Authorities Protection Act, 1893, which substitutes for their various requirements the one rule that proceedings against any person for any act done in execution of a statutory or other public duty shall be commenced within six months (o). 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 (I) Mayor of London v. Cox (») 24 Geo. II. c. 44, s. 6. (1867) L. B. 2 H. L.. at p. 269 (Action lies only if a demand in (in opinion of judges, per Willes writing for perusal and copy of lie J.). The law seems to be under- warrant is refused or neglected for stood in the same way in the six days.) United States. (o) 56 & 57 Vict. c. 61. There (m) The case of The MarshaUea, are subsidiary but not unimportant 10 Co. Eep. 76 a; Clark v. Woods provisions as to costs: see p. 210, <1848) 2 Ex. 395, 17 L. J. M. C. below. 189, 76 R. B. 632. 122 GENERAL EXCEPTIONS. the right person or property at his peril, the only exception; being on the principle of estoppel, where he is misled by the party's own act (p). Acts done by naval and militajry officers in the executioa or intended 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 consent implied (or indeed expressed) in the act of a man's joining the service that he will abide by its regu- lations 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 (g). How far the orders of a superior officer justify a subordinate who obeys them as against third persons has ne\-er been fully settled. But the better opinion appears to be that the subordinate is in the like position with an officer executing an appa- rently 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 {p) See Glasspoole v. Young affirmed in H. L. ibid. 784, 1 (1829) 9 B. & O. 696, 33 E. E.. Bro. P. O. 76, 1 E. E. 257. The 294; Balme v. Huttan, Ex. Ch. Ex. Ch. thought the action did not (1833) 9 Bing. 471; Bunstnn v. lie, but the defendant was entitled Paters-on (1857) 2 C. B. N. S. to judgment even if it did. No 495, 26 L. J. C. P. 267; and other reasons appear to have been given authorities collected in the Digest in the House of lyords. The case of English Case Law, ed. JMews, is discussed in Cockburn C. J.'s sub tit. Sheriff. dissenting judgment in DawJeins v. {q) Johnstone v. Sutton (1786- Lprd Paulet (1869) L. E. 5 Q. B. 1787) Ex. Ch. 1 T. E. 510, 548; 94. " MARTIAL LAW." .I2;i if the particular order is not necessarily or maiiifestly unlawful (r). The same principles apply to the exemption of a person acting under the orders of any public body competent in the matter in hand. An action does not lie against the Serjeant-at-Arms of the House of Commons for excluding a member from the House in obedience to a resolution of the House itself; this being a matter of internal discipline in which the House is supreme (s). The principles of English law relating to the protection of judicial ofEoers and persons acting under their orders have in British India been declared by express enactment (Act XVIII. of 1850). Ther(5 is still much obscurity, and certainly no general agreement, about the precise nature and extent of the justi- fication for acts done in the name of " martial law " in time of war or rebellion; the modem practice of passing aji Act of indemnity on the restoration of civil order, a politic and laudable practice in itseK, had before the war of 1914 made it improbable that an authoritative decision on the common law would ever be given; and during that war the Defence of the Realm Acts and orders made under them transferred the whole matter for practical purposes to the sphere of statutory authority. The general question however has not (r) See per Willes J . in Keighly (now Sir Harry) Stephen in V. Bell (1866) 4 F. & P. at p. 790; L. Q. B. xvii. 87, on a recent case this jxidgment appears to be treateji in Cape Colony, as authoritative by A. L. Smith (») Bradlaugh v. Gossett (1884) L. J. in Marks v. Frogley [1898] 1 12 Q. B. Div. 271, 53 L. J. Q. B. Q. B-. aSfi, 900, 67 L. J. Q. B,. 209. As to the limits of the privi- 605, O. A. In time of war the lege, see per Stephen J., 12 Q. B. protection may perhaps be more Div. at p. 283. As to the power extensive. As to criminal responsi- of a colonial legislative assembly bility in suoh cases, of. Stephen, over its own members, see Barton Dig. Or. Law, art. 202, Hist. Ci. y. Taylor (J. C. 1886) 11 App. Ca. Law, i. 200—206; and Mr. H. L. 197, 55 L. J. P. C. 1. 124 GENERAL EXCEPTIONS. wholly lost its interest (t), and may still be important be- yond seas. Some writers deny that outside the actual seat of h.ostilities there is any common law justification at all. Some think that there is, and that it wholly excludes the authority of the Courts; one or two have propounded extravagant theories of a supposed prerogative of the Crown in the matter. I venture to think it the better opinion that whatever, in time of war within the jurisdiction, is or reasonably appears necessary for the common defence against the King's enemies is justified by the common law, but that, in the absence of an Act of indemnity, the exis- tence of the necessity and the reasonableness of the action are to be determined by the ordinary Courts when peace is restored. It would not be useful to go into details here (u). But it would obviously not be reasonable, except on very special emergency, for a private citizen to take any such action on his own responsibility. 4. — Quasi-judicial Acts. Divers persons and bodies are called upon, in the management of public institutions or government of volun- (i) See A Petition of Uight oidiuary action at a place -where [1915] 3 K. B. 649, C. A.; and there is not actual fighting and the Da Keyser's Royal Hotel v. The ordinary Courts are still sitting; Kinff [1919] 2 Ch. 197, 88 L. J. and this, I humbly conceive, ia Ch. 415, C. A., affid. in H. L. right; but the judgment, which was May 10, 1920. Entrance on land on a petition for special leave to is on a distinct footing, see p. 171, appeal, is very brief, and cannot below. be .said to throw much light on («) See a series of articles in, the constitutional question. The L. Q,. E. xviii. 117 — 158; Dicey, reference to the Petition of Right Law of the Constitution,' 7th ed., in the last sentence is not literally Note X. in Appendix ; and observa- correct. Cp. Moyer v. Peabody tions thereon in review of 6th ed., (1909) 212 U. S. 78. It seems L. Q. R. xix;. 230. In Bx parte obvious that in the late war the D. F. Marais [1902] A. C. 109, attacks of hostile aircraft at various 71 L. J. P. C. 42, the Judicial places in England did create a Committee decided that there may state of war within the realm, be a state of war justifying extra- QUASI- JUDICIAL POWERS. 125 tary associations, to exercise 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 (x) . 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 eases of endowed schools, and religious congregations. And .the same principle appears in the constitution of modern incorporated com- panies, 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 anoma- lous manner. Their powers are for some purposes quasi- judicial, and yet they are not subject to any ordinary jurisdiction {y). The general rule as to quasi-judicial powers of this class is that persons exercising them are protected from civil (a;) Sec Allbutt v. General Coun- Q. B. 475. cil, #c. (1889) 23 Q. B. Div. 400, (y) See R. v. Benchers of Lin- 58 L. J. Q. B. 606; Leeson v. ooln's Inn (1825) 4 B. & C. 855, General Council, ^o. (1889) 43 Ch. 28 R. R. 482; Neate v. Denmai, Div. 366, 54 L. J. Ch. 233; Part- (1874) L. B. 18 Eq. 127, 43 L. J. ridge v. General Council, ^c. Ch. 409. (1890) 25 Q. B. Div. 90, 59 L. J. 126 GENERAL EXCEPTIONS. liability if they observe the rules of natural justice, and also the particular statutory or conventional rules (2), 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 suffi- cient notice of what is alleged against him, and an opportunity of making his defence; and that the decision, whatever it is, must be arrived at in good faith with a view to the common interest of the society or institution 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 (a). If not, the act complained of will be ■declared void, and the person affected by it maintained in his rights until the matter has been properly and regularly ■dealt |With(Ji). These principles apply to the expulsion (2) See Andrews v. Mitchell [1905] A. C. 78, 74 L. J. K. B. 333; Law v. Chartered Institute of Patent Agents [1919] 2 Ck. 276, 88 L. J. Ch. 319, shows the danger oE mixing judicial with executive duties. (a) Inderwiek v. Snell (1850) 2 Mae. & G. 216, 86 E. R. 73 (removal of a director of a com- pany); BawJcins v. Antrohus (1881) 17 Ch. Div. 615 (expul- sion of a member from a club) ; cf. 13 Ch. D. 352; Partridge v. General Cottncil, ^c, note (re), last page, although no notice was ijiven, the council honestly think- ing they had no option; Wiin- herger v. Inglis [1919] A. O. 606, 88 L. J. Ch. 287 (Stock Exchange Committee, semble its authority is not of a judicial nature but ad- ministrative). In the case of a club an injunction wiU be granted only in respect of the member's right of property, therefore where the club is proprietary the only rerredy is in damages: Baird v. Wells (1890) 44 Ch. D. 661, ^59 L. J. Ch. 673. As to objections against a member of a " domestic tribunal " on the ground of in- terest, AUinson v. General Medical Council [1891] 1 Q. B. 750, ■) Bell's Principles, 966 (re- (1853) 13 C. B. 285, 297, 22 L. J. ferred to by Lord Wensleydale in C P. 110, 93 R. R. 533; approved Chasemore v. Richards, supra, per Lord Hersohell in Allen v. p. 154. Flood [1898] A. C. 1, 124, 67 L. J. (s) Lord Watson in Mayor of Q. B. 119. Bradjord v. Pickles, note (o), (j) D. 39, 3, de aqua, 1, § 12 above. (Ulpian). LEAVE AND LICENCE. 159 ■own motion — so long as I do not use it to pass off my wares ■or business as being his, which is quite another matter. The fact that inconvenience arises from the similarity will not of itself constitute a legal injury (t), and allegations of pecuniary damage will not add any legal effect. ^' You must have in our law injury as well as damage " (m). 10. — Leave and Licence: Volenti non fit iniuria. 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. I'he maxim by which the rule is commonly brought to mind is " Volenti non fit iniuria " {x). "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, neither the Latin nor the English formula provides in terms for the state of things in which there is not specific will or assent to suffer something which, if inflicted against the party's will, would be a wrong, but only conduct show- ing that, for one reason or another, he is content to abide (i) See Burgess v. Burgess 179, 67 L. J. Ch. 41, -where a name (1853) 3 D. M. G-. 896, 22 L. J. -was aasujned for a fraudulent pur- Ch. 675, 98 R. K. 350, a classical pose. As to titles of hbnour. Earl case- Su Boulay v. Bu Boulay Cowley v. Countess Cowley [1901] (1869) L. R. 2 P. C. 430, 38 L. J. A. 0. 450, 70 L. J. P. S3. P. C. 35; Day v. Brownriyg (1878) («) Jessel M. R., 10 Ch. Div. lOCh. Div. 294, 48 L. J. Oh. 173; 304. Street v. Union Bank, . 685,694, 697, 56 L. J. Q. B. 340. France (1887) 19 Q. B. D. 647, {y) 18 Q. B. Div. at p. 698. TAKING RISK. 167 or imprudent because he chooses to encounter a risk which ho knows and appreciates; but, if he does voluntarily run the risk, he cannot complain afterwards {z). At the same time, knowledge is not of itself conclusive. The maxim is volenti — not scienti — non fitiniuria; "the question whether in any particular case a plaintiff was volens or nolens is a question of fact and not of law" (a). 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 continuing to use such appliances if the employer cannot or will not give him better is not con- clusive to show that he voluntarily takes the attendant risk (6). As between an employer and his own workmen, it is hardly possible to separate the question of knowledge and acceptance of a particular risk from the question whether it was a term in the contract of service (though it is seldom, if ever, an express term) that the workman should accept that risk. Since the Employers' Liability Act deprived the master, as we have already seen, of the defence of " common employment " in a considerable number of cases, the defence of ijolenti nan fit vniuria has several times been resorted to, with the effect of raising complicated discussion on tolerably simple facts. By treating the maxim as if it were of literal authority (which no maxim is), and then construing it largely, something very like the old doctrine of " common employment" might have been indirectly restored. For SQime time there was appreciable danger of this result. But the tendency was effectually checked by the decision of the House of Lords in Smith v. Baker (c). Except where there (z) Bowen L. J. 18 Q. B. Div. (6) Yarmouth v. France, last at p. 695. note; Thrussell v. Ilandyside (a) Ibid, at p. 696; Lindley (1888) 20 Q. B. D. 359, 57 L. J. L. J. in Yarmouth v. France Q. B. 347; Smith v. Balcer [1891] (1887) 19 Q. B. D. 647, 659, A. O. 325, 60 L. J. Q. B. 683. before judges of the C. A. sitting (c) [1891] A. C. 325. as a divisional Court. 168 GENERAL EXCEPTIONS. 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 (d) . " 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 producing noxious fumes. But where " a risk to the employed, which may or may not result in injury, has been created or enhanced by the negli- gence of the employer," there " the mere continuance in ser- vice, 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 " (e). And it seems that (apart from contracts to take a class of risks) there must be consent to the particular act or operation which is hazardous, not a mere general assent inferred from knowledge that risk of a certain kind is possible (/). Cases of volenti nan fit iniur.ia are of course to be dis- tinguished from cases of pure unexpected accident, where there is no proof of any negligence at all on the defendant's part (g). It seems that Thomas v. Quarter maine, though not so dealt with, was really a case of this latter kind {li). (d) Williams i. Birmingham (li) See Lord Morris's remarks Battery and Metal Co. [1899] 2 in Smith v. Baleer [1891] A. O. Q. B. 338, 345, 68 L. J. Q. B. at p. 369. In SmitJi v. Baker 918, per Romer, L. J. itself, an appeal from a County (e) Lord Hersohell [1891] A. C. Court, this point, not having been at pp. 360, 362. raised at the trial below, was mot (/) Lord Halsbury [1891] A. C. open on the appeal. It was never- at pp. 336 — 338. theless extra-judicially discussed, (ff) Walsh V. Whiteley (1888) with considerable variety of 21 Q. B. Div. 371, 57 L. J. Q. B. opinion. 586. TAKING RISK. 169 In the construction of a policy of insurance against death or injury by accident, an exception of harm " happening 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 (^). We now see that the whole law of negligence assumes the principle of volenti non fit iniuria not to be applicable. It was suggested in Holmes v. Mather (/c) that, when a competent driver is run away with by his horses, and, in spite of all he can do, they run over a foot-passenger, the foot-passenger 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 negli- gence? It is common knowledge that not aU 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 London streets without know- ing that there was a risk of being run over " (l). The actual risk to which a man crossing the street is exposed (apart from any carelessness on his own part) is that of pure misadven- ture, 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 ovetr him by negligence: which is absurd. Are we to say, then, that he takes on himself the one part of the risk and doesi not take the other? A reason thus artificially limited is no reason at all, but a mere fiction. It is simpler and better to say plainly that the driver's duty is to use proper and reasonable care, and beyond that he is not answerable. The (j) Cornish v. Accident Insur- (Je) L. K. 10 Ex. at p. 267. unce Co. (1889) 23 Q. B. Div. {I) Lord Halsbury [1891] A. O. 453, 58 L. J. Q. B. 591. at p. 337. 170 GENERAL EXCEPTIONS. true view, we submit, is that the doctrine of voluntary exposure to risk has no application as between parties on an equal footing of right, of whom one does not go out of his way more than the other. A man is not bound at his peril to fly from a risk from which it is another's duty to protect him, merely because the risk is known {m). Much the same principle has in late years been applied, and its limits discussed, in the special branch of the law which deals with contributory negligence. This we shall have to. consider in its place {n). 11. — Works of Necessity. A class of exceptions as to which there is not mucli authority, but which certainly exists in every system of law, is that of acts done of necessity to avoid a greater harm, and on that ground justified. Pulling down houses to stop a fire (o), and casting goods overboard, or otherwise sacrificing property, to save a ship or the lives of those on board, are the regular examples. The maritime law of (m) Smith v. Saker [1891] Sharpe [1910] 1 K. B. 168, 79- A. O. 325, 60 L. J. Q. B. 683; L. J. K. B. 281. Necessity must Thrussell v. Handyside (1888) 20 be shown, not in tiie sense of Q. B. I>. 359, 57 L. J. Q. B. 347. "actual'- necessity as judged after («) See Gee v. Metropolitan R. the event, but according to tlie Co. (1873) Ex. Ch. L. R. 8 Q. B. judgment of a reasonable man 161, 42 L. J. Q. B. 105; liobson meeting imminent danger at thO' V. N. E. R. Co. (1875) L. R. 10 time: Cape v. Sharpe (No. 2) Q. B. at p. 274, 44 L. J. Q. B. [1912] 1 K. B. 496, C. A., 80 112; and per Bramwell L. 0. (not L. J. K. B. 1008. Cp. the opinion referring to these authorities, and of Best C. J. in Dewey v. White taking a somewhat different view), (1827) Moo. k, Mi. 66 (damage Lax V. Corporation of Darlington inevitably done to plaintiff's house (1879) 5 Ex. D. at p. 35, 49 L. J. in throwing down chimneys ruined Ex. 105. by fire, which were in danger of (o) Dyer 36 h: as to burning falling into the liighway: a verdict heather on another's land to stop for the defendants was acquiesced the spread of heath fires. Cope >. in). WORKS OF NECESSITY. 171 general average assumes, as its very foundation, that the destruction of property under such conditions of danger is justifiable (p). 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 "(g). In strict law this justification may be alleged by any of the King's sub- jects; but in practice no such act is likely to be done by any one but a servant of the Crown. It does not seem clear that the Crown is entitled to enter on and occupy ai su'bject'si land during war time for administrative naval, military, or aerial work as distinct from pressing local defence without statutory authority (r); but at all events proper compensa- tion must be made for the use and occupation; in point of fact the Crown, under whatever title acting, has invariably paid down to the present time (s). There are also circum- stances 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, (p) Mouse's ease, 12 Co. Rep. rogative in that cage to occupation 63, is only just worth citing as an and use of a flying ground during illustration that no action lies. the war was not necessary for the {q') Kingamill J. 21 Hen. VII. decision. 27, pi. 5; op. Dyer, ubi supra. (r) No such existing prerogative In 8 Ed. IV. 23, pi. 41, it is is admitted in the M. R.'s judg- thought doubtful whether the justi- ment in the case next cited, fication should be by common law (s) De Keyser's Royal Hotel v- or by special custom. See p. 124, B. [1919] 2. Ch. 197, 88 L. J. Ch. above; A Petition of Right [1915] 415, C. A. (Swinfen Eady M. R. 3 K. B. 649, 84 L. J. K. B. 1961, and Warrington L. J., Duke L. J. C. A. The extension of the pre- diss.), affd. in H. L. May 10, 1920. 172 GENERAL EXCEPTIONS. enter peaceably on his land to help in putting it out (t). 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 necessity must be lawful as well as right. Our books have only slight and scattered hints on the subject, probably because no question has ever been made (u). The test of justification seems to be the actual presence of imminent danger and a reasonably apparent necessity of taking such action as was taken (x) . It seems that on the same principle a stranger may justify interfering with the goods of a lately deceased person so far, but only so far, as required for the protection of the estate or for other purposes of immediate necessity (|/). 12. — Private Defence. Self-defence (or rather private defence (z), for defence of one's self is not the only case) is another ground of im- (t) Good will wifjioiit real neoes- arc lawfully endeavouring to put sity would not do; there must foe down the fire, and are not mani- danger of total loss, and, it is said, festly insufficient for that purpose: without remedy for tha owner Carter v. Thomas [1893] 1 Q. B. against any person, per Cede C. J. 673 (judgment of Kennedy J.). 21 Hen. VII. 28, pi. 5; but if this (m) Cf. the Indian Penal Code, be law, it must be limited to s. 92, and the powers given to the remedies against a trespasser, for London Fire Brigade by 28 & 29 it cannot be a trespass or » lawful Vict. o. 90, s. 12, which seems ,aot to save a man's goods accord- rather to assume a pre-existing ing as they are or are not insured. right at common law. Cp. Y. B. 12 Hen. VIII. 2, where (x) Cope v. S/iarpe (No. 2), there is some curious discussion on note (o) above. the theory of trespass generally. (,j) gee Kirk v. Gregory (1876) A mere volunteer may not force his 1 Ex. D. 55 59. way into a house on fire already {-) This is the term adopted in under the control of persons who the Indian Penal Code. PRIVATE DEFENCE. 173 munity well known to the law. To repel force by force is the common instinct of every creature that has means of defence. And when the original force is unlawful, this natural right or power of man is allowed, nay approved, by the law. Sudden and strong resistance to unrighteous attack is not merely to be tolerated; it many cases it is a moral duty. Therefore it would be a grave mistake to^ regard self-defence as a necessary 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 likewise be done for a wife or husband, a parent or child, a master or servant (a). At the same time no right is to be abused or made the cloak of wrong, and this right is one easily abused. The law sets bound to it by the rule that the force employed must not be out of pro- portion to the apparent urgency of the occasion. We say apparent, for a man cannot be held to form a precise judg- ment under such conditions. The person acting on the defensive is entitled to use as mucli 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 applies (so far as it is the law) only to criminal liability (b). On (a) Blaokstone iii. 3; and see was understood that a loi-d mig'lit the opinion of all the justices of fight in defence of his men as well K. B., 21 Hen. VII. 39, pi. 50. as they in his. LI. Alf. c. 42, § 5. There has been some doubt (i) See Stephen, Digest of whether a master could justify on Criminal Law, art. 200. Most of the ground of the defence of his the authority on this subject is in servant. But the practice and the the early treatises on Pleas of the bett&r opinion have always beem Crown, otherwise. Before the Conquest it 174 GENERAL EXCEPTIONS. the other hand, if a man presents a pistol at my head andj threatens to shoot me, peradventure the pistol is not loaded or is not in working order, but I shall do no wrong beforei the law by acting on the supposition that it is really loaded and ca.pable of shooting. " Honest and reasonable belief of immediate danger " is enough (c). Cases have arisen on the killing of animals in defence of one's property. Here, as elsewhere, the test is whether the party's act was such as he might reasonably, in the circumstances, think necessary for the prevention of harm which he was not bound to suffer. Within our own time the subject was elaborately discussed in New Hampshire, and all or nearly all the authorities, English audi American, reviewed {d). Some of these, such as Deane v. Clayton (e), turn less on what amount of force is reasonable in itself tlian 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 (o) N. 0. ^- N. E. It. li. Co. where the Court was equally V. Jopes (1891) 142 U. S. 18. divided; Jordin v. Crump (1841) (d) Aldrich v. Wright (1873) 53 8 M. & W. 782, 90 R. . R. 929; N. H. 398, 16 Am. Eep. 339. The where the Court took the view of decision was that the penalty of Gibbs C. J. in the last case, on a statute ordaining a close time the ground that setting dog- for minks did not apply to a man spears was not in itself illegal, who shot on his own land, in the Notice, however, was pleaded. It close season, minks which he is not malicious injury to property reasonably thought were in pursuit for a gamekeeper to shoot a dog of his geese. Compare Taylor app. in the honest belief that such action Newman resp. (1863) 4 B. & S. is necessary for the protection of 89, 32 L. J. M. C. 186, 129 R. R. his master's property: iUles v. 657. Hutching!' [1903] 2 K. B. 714, 72 (e) (1817) 7 Taunt. 489, 18 L. J. K. B.' 775.' R. R. 553, the case of dog-spears, DEFENCE AND NECESSITY, 175 liis 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 b© considered, however, that a man repelling imminent danger cannot be expected to use •as much care as he would if he had time to act deliberately. Self-defence does not include the active assertion of a disputed right against an attempt to obstruct its exercise. I am not justified in shooting, or offering to shoot, one wTio obstructs my right of waj^ though 1 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 " (/). 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 mj right itself (g). Many interesting questions, in part not yet settled, may be raised in this coimexion, 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 suffi- cient justification or excuse in a criminal prosecution wiU equally suffice in a civil action. Some of the dicta in the well-known case of Scott v. Shepherd ih) go the length of suggesting that a man acting on the spur of the moment under " compulsive neces- (/) Dicey, Law of the Consfci- (^) Dicey, op. oit. 495. tution, appx. note iv., at p. 493, which gee for fuller discussion. (.*) 2 W. Bl. 892. 176 GENEKAL EXCEPTIONS. sity " (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 Ryal, if he had been worth suing and had been sued, could have successfully made such a defence. They " had ... a right to protect themselves by removing the squib, but should have taken care " — at any rate such care as was practicable under the circumstances^" to do it in such a manner as not to en- damage others " (i). The Roman lawyers held that a man who throws a stone in self-defence is not excused if the stone by misadventure strikes a person other than the assailant (/c). 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 evident 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 bj 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 owjier's land (I). («■) Blackstone J. in his dissent- way of precaution against -n im- ing judgment, 2 W. Bl. at p. 895. pending common danger. Snoh is (k) D. 9. 2, ad. 1. Aquil. 45, the case of a South African faxmer § 4; supra, p. 139. wlio drives a swarm of locusts off (I) Whalley v. Lane, and Yorh- liis own land. He is not answer- ahire R. Co. (1884) 13 Q. B. Div. able for damage they may do else- 131, 53 L. J. Q. B. 285, distin- where; Greyvensteyn v. Ilattingh gujshing the case of acts lawful [1911] A. O. 355, 80 L. J. P. C. in themselves which are done bv 158. WHERE PLAINTIFF A WRONG-DOER. 177 13. — Plaintiff a mrong-doer. Language is to be met with in some books to the effect that a man cannot sue for any injury suffered by him at a time when he is himself a 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 tres- passer) 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 limited; or if a man is riding or driving at an inca,utiously fast pace, anybody might throw stones at him with impunity. In Bird v. Holbrook (m) a trespasser who was wounded by a spring-gun set without notice was held entitled to maintain his action. Similarly it is said that oven a trespasser may have an action against an occupier who has put a horse which he knows and the tres- passer does not know to be savage in a field used, to his knowledge, by many persons as a short cut_(w). 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" (o). It does not appear on the whole that a plaintiff is disabled from recovering by reason of being himseK 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 (m) (1828) 4 Bing. 628, 29 Barnett. [1911] A. C. at p. 370, 80 E. R. 657. Cp. p. 165, above. L. J. P. C. 117; but the ground The cause of action arose, and the on which that decision was actually trial took place, before the passing) put waa that the plaintiff was a of the Act which made the setting licensee, as the same judgment of of spring-guns unlawful. the Judicial Committee says on the (k) Lowery v. Walker [1911] same page. A. O. 10, 80 L. J. K. B. 138, (o) Barnes v. Ward (1850) 9 according to a suggestion in C. B. 392, 19 L. J. O. P. 195, 82 Grand TrunJc Ry. of Canada v. E. B. 375. P.- 12 178 GENERAL EXCEPTIONS. is difficult to find a case where it is nccessarj to assume an,y special rule of this kind. It would be no answer to an action for killing a dog to show that the owner was liable to a penalty for not having taken out a dog licence in due time. If, again, A. receives a letter containing defamatory state- ments 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, justles 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 makes 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 (p). 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 -^Tongful act. Cases of this kind have sometimes been thought to belong to the head of contributory negligence. But this, it is sub- mitted, is an unwarrantable extension of the term, founded on a misapprehension of the true meaning and reasons of the doctrine; as if contributory negligence were a sort of positive wrong for which a man is to be punished. This, however, we shall have to consider hereafter. On the whole (p) See a similar case put by Co. (1857) 1 H. & N. at p. 777, Pollock 0. B. in Degg ». Midi. li. 108 R. R. at p. 819. UNLAWFUL CONDUCT OF PLAINTIFF. 179 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 la plaintiff who has voluntarily exposed himself to a known risk caimot recover, or the still broader rule that a defendant is liable only for those consequences of his acts which are, in the sense explained in a former chapter (q), natural and probable. In America there was formerly a great question, with many contradictory decisions, whether the .violation of statutes against Sunday travelling was 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 (where the law is now otherwise by statute), it was held that a plaintiff in such circumstances could not recover, although the accident might just as well have happened on a journey lawful for all purposes. These decisions must be supported, if at all, by a strict view of the policy of the local statutes for securing the observance of Sunday: they were not generally considered good law (r). The principle now defined by the Supreme Court of Massachusetts as generally applicable is that illegal con- duct of the plaintiff which contributed directly and proxi- mately to the inj,ury suffered by him is equivalent, as matter of law, to contributory negligence (s). It is a rule not confined to actions on contracts that " the plaintiff cannot recover where in order to maintain his sup- (g) Pp. 33 — 50, above. and note, ib. (r) Sutton V. Town of Wau- (s) Newcoittb v. Boston Protec- VMtosii, (Wisconsin, 1871), in Jer. tive Depart. (1888) 146 Mass. 596, Smith's Cases on Torts, ii. 116, Jer. Smith, op. oit. ii. 123. 12(2) 180 GENEEAL EXCEPTIONS. posed claim he must set up an illegal agreement to which he himseK has been a party "(e): but its application to 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. (0 Maule J., Fivaz v. Nioholls (1846) 2 0. B. 501, 513; 69 E. E. 514, 521. ( 181 ) CHAPTER V. OF REMEDIES FOR TORTS. A.T common law there were only two kinds of redress for an actioinable wrong. One was in those cases — exceptional cases according to modem 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 moiney 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 excep- tions, 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. Therefore we have at this (a) Possession could be recovered mands (e.ff. mandamus) were ap- from an early time, though not at plicable to the redress of purely first in an action of ejectment. private wrongs, though they might But this was an action of trespass be available for a private person in form only. In substance it took wronged by a breach of public the place of the old real actions, duty. Under the Common Law and it is sometimes called a real Procedure Acts, from 1854 to 1875, action. Detinue was not only not the superior courts of common law a substantial exception, but hardly had Umited powers of granting in- even a formal on«, for the action junctions and administeiring equit- was not really in tort. ablo relief. These were found of (6) I do not think any of the little importance in practice, and powers of the superior courts of there is now no reason for dwelling common law to issue specific com- on them. 182 REMEDIES FOR TORTS. day, in considering' one and the same jurisdiction, to bear in mind the manifold forms o'f legal redress which for our predecessors were separate and .unconnected incidents in the procedure of different courts. Remedies available to a party by his own act alone may be included, after the example of the long-established German usage, in the expressive name cxf 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 i;o 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 bo 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 delf -defence, in the strict sense, in this connexion. It is only when the party's lawful act restores to him something- which he ought to have, or puts an end to a state of things whereby he is wronged, or at least puts pressure on the wrong-doer to do him right, that self-help is a true remedy. And then it is not necessarily a complete or exclusive remedy. The acts of this nature which we meet with in the law of torts are expulsion of a 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. Analo- gous to the right of retakiAg goods is the right of appro- priating 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 (o) This is well noted in Cooley on Torts (lat ed.) 50. DAMAGES. 183 remedial self-help recognized in the law of England. In every case alike the right of the party is subject to the rule that no greater force must be used, or damage done to property, than is necessary for the purpose in hand. In some eases the mode of exercising the right has been specially modified or regulated. Details will best be considered here- after in relation to the special kinds of wrong to wliich these kinds of redress are applicable (d) . We pass, then, from extra-judicial to judicial redress, from remedies by the act of the party to remedies by the act of the law. The most frequent and familiar of these is the awarding of damages (.&). Whenever an actionable wrong has been done, the party wronged is entitled to recover damages; thoiugh as we shall immediately see, this right is not necessarily a valuable one. His title to recover is a concl,u.sion of law from the facts determined in the cause. How imuch he shall recover is a matter of judicial discretion, a discretion exercisefd, if a jiury tries the cause, by the jury under the guidance of a judge. As we have had occasion to point out in a former chapter (/), the rule as to " measure of damages " is laid down by the Court and applied by the jury, whose application of it is, to a certain extent, subject tq review. The grounds on which the verdict of a jury may be set aside are all reducible to this principle : the Court, namely, must be satisfied not only that its own findin^g would have been different (for there is a wide field within which Oipinions and estimates may fairly differ) (g), but that the jury did not exercise a due judicial discretion at all (h). Among these grounds are the awarding of mani- (d) Cp. Blackstone, Bk. iii. work as "Mayne on Damages.' c. 1. (/) P- 29, above. (e) It ia hardly needful to refer {g) The principle is familiai-. the reader for fuller illustration of See it stated, e.g. 6 Q. B. Div. 85. the subject to so well known a (^) See Metropolitan 2!. Co. v. 184 EEMEDIES FOE TORTS. festly excessive or manifestly inadequate damages, sucli as to imply that tlie j,u,ry disregarded, either by excess or by defect, the law laid down to them as to the elements pf dajnage to be considered (i), or, it may be, that the verdict represents a compromise between jiurymen who were really not agreed on the main facts in ism& (k). The jurisdiction is to order a, new trial, not to give judgment for an amended a,mqunt of damages, which can be done only by consent (l). Damages may be nominal, ordinary, or exemplary. Nominal damages are a sum of so little value as compared with the cast and tro.u.ble of suing that it may be said to have " no existenoe in point of quantity " (m), such as a shilling or a penny, which sum is awarded with the purpose of not giving any real compensation. Such a verdict means one of two things. According to the nature of the case it may be honourable or 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 j,ury, while unable to deny that some legal wrong has been done to the plaintiff, have formed a very low opinion of the general merits of his case. This again may be an the ground that the harm he suffered was not worth, s,uing far, or that his own conduct had been such that what- ever he did suffer at the defendant's hands was morally deserved. The farmer state of things, where the verdict Wright (,1886) 11 App. Ca. 152, 55 was set aside on the ground of L. J. Q,. B. 401 ; Praed v. Graham the damage-s being insufficient; (1889) 21 Q. B. Div. 53, 59 L. J. Johmion v. G. W. E. Co. [1904] Q. B. 213; Cox v. English, Scottish 2 K. B. 250, 73 L. J. K. B. 568, and Australian Bank [1905] A. C. C. A. 166, 74 L. J. P. q. 62. (S) Falvey v. Stanjord (1874) (0 Phillips V. L. ^- S. W. li. L. R. 10 Q. B.64, 44L. J. Q. B.7. Co. (1879) 5 Q. B. Div. 78, 49 {V) Watt v. Watt [1905] A. C. L. J. Q. B. 233, where, .)n the 115, 74 L. J. K. B. 438. facta shown, a verdict tor 7,0002. (m) Maule J. 2 C. B. 499. NOMINAL DAMAGES. 185 really operates as a simple declaration of rights between the parties, is most commonly exemplified in actions of tres- pass 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 conduct (w). The other kind of award of nominal damages, where the plaintiff's' demerits earn him an illusory sum such as one farthing, is illustrated chiefly by oases 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 com- pensation (o). This has happened in actions against tha publishers of newspapers which were famous at the time, but have not found a place in the regular reports. Nominal damages may also be given where there has been some excess in generally justifiable acts of self-defence or self-help (p). 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 " a mere peg on which to hang costs " (g), much less important than («) Under the various statutes Poole v. Whitcomb (1862) 12 C. B. as to costs which were in force N. S. 770, 133 R. E. 502. before the Judicature Acta, 40s. (o) Kelly v. Sherlock (1866) was, subject to a few exceptions, L. R. 1 Q. B. 686, 35 L. J. Q. B. the least amount of damages 209, is a case of this kind where, which carried coats without a notwithstanding that the libels special certificate from the judge. sued for were very gross, the jury- Frequently juries asked before gave a farthing damages, and tha giving their verdict what was the Court, though not satisfied with the least sum that would carry costs; verdict, refused to disturb it. the general practice of the judges' {p) Harri&on v. Duke of Rut- was to refuse this information, see land [1893] 1 Q. B. 142, 62 L. J. Wilson v. Reed (1860) 2 F. & F. Q. B. 117, C. A. at p. 153, 121 B. K. at p. 786; (q) By Maule J. (1846) in 186 REMKDIES FOE TORTS. it formerlj was. But the possibility of recovering nominal damages is still a test, to a certain extent, of the nature of the right claimed. Infringements of absolute rights like those of personal security and property give a cause of action without regard to the amount of harm done, or to there being harm estimable at any substantial sum at all. As Holt C.J. said in a celebrated passage of his judgment in Ashhy v. White (r), " a damage is not merely pecuniary, but an injury imparts a damaffe, when a man is thereby hindered rks Co. (1871) L. R. 6 Ex. 404, 1 Ex. I>. 269, 45 L. J. Ex. 777: afterwards reversed in the Court but qu. whether this case can now of Appeal (see note (<7)). bo lelied on; it was decided (/) Couch v. Steel (1854) 3 E. partly on the authority of & B. 402, 23 L. J. Q. B. 121. Atkinson v. Newcastle Water- (g) Atkinson v. Newcastle 198 KEMEDIES FOR TOBTS. 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 pre- scribed by an Act of Parliament for ^purely sanitary purposes, the shipowner is not liable to the owner of the cattle by- reason of the breach of the statute (h) : 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 (^), and in an action not founded on a statutory duty the disregard of such a duty, if likely to cause harm of the kind that has been suffered, may be a material fact (/{;). Where more than one person is concerned in the commis- 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) (l), whether they acted, as between them- selves, as equals, or one of them as agent or servant of Waterworks Co. (1877) 2 Ex. Div. however, no private damage was 441, 46 L. J. Ex. 775; a somewhat in question) ; and Vallunce v. Falle similar Canadian case as' to gas- (1884) 13 Q. B. D. 109, 53 L. J. works is Johnston v. Consumers' Q- B. 459. See further, as to high- Gas Co. of Toronto [1898J A. C. ways, Cowley v. Newmarket Looal 447, 67 L. J. P. C. 33. Cp. Board [1892] A. 0. 345, 67 L. T. Stevens v. Jeaoocke (1847) 11 486; Thompson v. Mayor of Q. B;. 731, 17 L. J. Q. B. 163, Brighton, Oliver v. Local Board of where it was held that the local Horsham [1894] 1 Q. B. 332, 63 Act regulating, under penalties, the L. J. Q. B. 181, C. A. pilchard fishery of St. Ives, Corn- (/() Gorris v. Scott (1874) L. R. wall, did not create private rightsi 9 Ex. 125, 43 L. J. Ex. 92. enforceable by action: Vestry of (i) See per PoUook B., L. R. 9 St. Pancra-s v. Batterbury (1857) 2 Ex. at p. 131. C. B. N. S. -477, 26 L. J. C, P. (/c) Blamires v. Lane. ^ York- 243, 109 B. R. 765, where a statu- shire S. Co. (1873) Ex. Ch. L. R. tory provision for recovery by 8 Ex. 283, 42 L. J. Ex. 182. summary proceedings was held to (I) Page 73. exclude any right of action (here. CONTRIBUTIOX BETWEEN WKONG-DOEKS. 199 another. There are no degrees of responsibility, nothing answering to the distinction in criminal law between prin^ eipals and accessories. But when the plaintiff in such a case has made his choice, he is concluded by it. After recover- ing 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 (m). The reason of the rule is stated to be that otherwise a vexatious multipli- city of actions would be encouraged. As between joint wrong-doers themselves, one who has been sued alone and compelled to pay the whole damages has no right to indemnity or contribution from the other (w), if the nature of the case is such that he " must be presumed to have known that he was doing an unlawful act " (o) . Other- wise, " where the matter is indifferent in itself," and the wrongful act is not clearly illegal (p), 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 in- demnit}" being claimed. " Every man who employs another (m) Brinsmead v. SarriMn This qualification of the supposad (1872) Ex. Ch. L. E. 7 C. P. rul« in Merryweather v. ]S!ixan is 547, 41 Ii. J. C. P. 190, finally strongly confirmed by the dicta, settled the point. It was for- especially Lord Herschell's, in merly doubtful whether judgment Palmer v. WioTc and Pultenetjtovyn without satisfaction was a, bar. Steam Shipping Co. [1894] A. C. And in the United States it is all 318, 324, where the actual decision but universally held that it is not: was that no such rule exists in Burdiok on the Law of Torts, 225, Scotland. See per Bruce J. in Th^e Col. Law Eev. xvi. 500, 510. Englishman and The Australia (m) Merryweather v. liixan [1895] P. 212, at pp. 216—213; (1799) 8 T. K. 186, 16 R. E. 810, and Burrows v. Rhodes [1899] 1 where the doctrine is too widely Q. B. 816, 68 L. J. Q. B. 545. laid down. (p) Betts v. Gibbitis (1834) 2 (o) Adamson v. Jarvis (1827) 4 A. & E. 57; 41 E. E. 381. Bing. at p. 73, 29 E. E. 503, 508. 200 RKMEDIES FOR TORTS. to do an act which the employier appicars 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 autho- rity he pretends to have." Therefore an auctioneer who in good faith sells goods in the way of his business on behaLfi 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 (g) . And persons entrusted with goods as wharfingers or the like who stop delivery in pursuance of their principal's instructions may claim indemnity if the stoppage turns out to be wrongful, but was not obviously so at the time (r) . In short, the proposition that there is no contribution between wrong- doers must be understood to affect only those who are 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 — including a person who has been led into unlawful acts by the other wrong-doer's fraudulent mis- representation of the facts, and, being so misled, thought he was acting lawfully (s) — is entitled to indemnity from any person under whose apparent authority he acted in good faith; a wilful or negligent (t) wrong-doer has no claim to (y) Adum^n v. Jarvis (1827) 4 (t) I am not sure tliat authority Bing. 66, 72, 29 B. R. 503, 507— fully covers this, though The 508. The ground of the action for Englvih^tian and The Australia indemnity may be either deceit or [1895] P. 212, 64 L. J. P. 74, warranty: see 4 Bing. at p. 73, seems in point. But I do not think 29 E. E. 508 — 509. an agent could claim indemnity for (r') Belts V. Oibhins (1834) 2 acts which a reasonable man in A. & E. 57, 41 R. R. 381. See his place would know to be beyond too Collins V. Evans (1844) (Ex. the lawful power of the principal. Ch.) 5 Q. B. at p. 830, 13 L. J. See Indian Contract Act, a. 223'. Q. B. 180, 64 R. R. 633. The peculiar statutory liability (s) Burrows v. Rhodes [1899] 1 created by the Directors' Liability Q. B. 816, 68 L. J. Q. B. 545. Act, 1890, now Companies (Con- TRESPASS AND FELONY. 201 contribution or indemnitj . 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 theiir claim cannot be maintained, it seems contrary' to principle that one of them should be com- pellable to pay the whole damages and costs without any recourse over to the others. I cannot find, however, that any decision has been given on 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. The doctrine has long been current that when' the facts affording a cause of action in tort are such aS to aanount to a felony, there is no civil remedy against the felon (m) for the wrong, at all events before the crime has been prosecuted to conviction. And as, before 1870 {x), 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 substantially if not technically correct. But much doubt was raised in the matter in several modern cases, and for a long time it was hard to say either exactly what the rule was or how it should be applied in solidation) Act, 1908, ». 84, ia seouted or not: Marsh v. Keating quaUfied by a right to recover con- (1834) 1 Bing. N. C. 198, 217, 2 tribution in all cases. CI. & F. 250, 37 R. R. 75; White («) It 13. settled that there ia no v. Spettigue (1845) 13 M. & W. riJe to prevent the suing of a 603, 14 L-. J. Ex. 99, 67 R. R. 753. person who was not party or privy In these cases, indeed, the cause of to the felony. Stolen goods, or' action is not the offence itself, but theu value, e.g., can be recovered something else which is wrongful from an innocent possessor who has because an offence has been com- not bought in market overly mitted. whether the thief has been pro- (x) 33 & 34 Vict. c. 23. 202 REMEDIES FOR TORTS. practice. Still it is the law (y) that where the same facts amount to a felony and are such as in themselves would con- stitute a civil wrong, a cause of action for the civil wrong does indeed arise, but the remedy is not available for a person who might have prosecuted the wrong-doer for the felony, and has failed to do so. The plaintiff oujght 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) {z), or that prosecution is impossible (as by the death of the felon or his immediate escape beyond the jurisdiction), or that he has endeavoured to bring the offender to justice, and has failed without any fault of his own (a) . While, however, the law was commonly so stated, it was nowhere laid down how practical effect was to be given to it. The objection was not a ground of demurrer (6), could not be pleaded, and would not warrant a nonsuit if the facts showing a felony came out in evidence (c) . The Court of Appeal has now decided, in accordance with the suggestion made by Blackburn J. in 1872, that the proper course is for the Court to stay proceedings (which may be done on inter- locutory application) until the defendant has been prose- cuted {d) . Discussion of the earlier authorities is therefore no longer useful. It may still be curious to observe that the policy of the rule found little favour with one eminent judge («/) Smith V. Selwyn [1914] 3 10 Q. B. D. 412, cp. Midland Jn- K. B. 98, 83 L. J. K. B. 1339, surance Co. v. Smith (1881) 6 O. A. Q. B. D. 561, 50 L. J. Q. B. 329. (s) Chowne v. Baylis (1862) 31 (c) WdU v. Abraliams (1872) Beav. 351, 135 K. R. 465. L. R. 7 Q. B. 554, 41 L. J. Q. B. (a) See the judgment of Bag- 306, dissenting from Wellock v. gallay I.. J. in Ex parte 'Bull Coiutantiiie (1863) 2 H. & C. 140, (1879) 10 Ch. Div. at p. 673. For 32 L. J. Ex. 285, 133 R. R. 622. the difficulties see per Bramwoll (rf) Smith v. Selwyn, note (y), L. J., ib. at p. 671. above. (i) jftoope.v. D'Avigdor (1883) LOCALITY OF WRONGS. 20S of an earlier generation, whose criticism of both law and procedure could be outspoken (e). Lastly we have to see undei- 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 juris- diction 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. 1 . The act may be such that, although it may be wrong- ful 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 " (/). It is generally held, however, in America that an action may be maintained in one State, if not contrary to its own policy, for a wrong done in another and actionable there, even if it would not be actionable by the lex fori {g) . 2. The act, though in itself it would be a trespass by (e) Per Maule J. in Ward v. Christian duty to forgive one's Lloyd (1843) 7 Scott N. E. 499, enemies; and I think he does a 507, a case of alleged compounding very humane and charitable and of felony: "It would be a sti-one Christian-like thing in abstaining thing to say that every man is from prosecuting." bound to prosecute all the felonies (/) The Ilalley (1838) L. 11. 2 that come to his knowledge; and P. C. 193, 204, 37 L. J. Adm. 33; I do not know why it is the duty The JI. Moxham (1876) 1 P. Uiv. of the party who suffers by the 107. felony to prosecute the felon, {g) See American note to Diepy rather than that of any other on Conflict of Laws, p. 670, 1st ed. person: on the contrary, it is a ■204 REMEDIES FOR TORTS. the law of England, maj be justified or excused bj the local law. Here also there is no remedj in an English court (Ji). And it makes no difference whether the act was from the first justifiable by the local law, or, not being at the time juistifiable, was afterwards ratified or excused by a declaration of indemnity proceeding from the local sove- reign power. In the well-known case of Phillips v. Eyre (i), where the defendant was Governor of Jamaica at the time of the trespass complained of, an Act of indemnity subsequently passed by the colonial Legislature was held effectual to prevent the defendant from being liable in an action for assault and false imprisonment brought in England. But nothing less than jastification 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 (k). 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 (Z). For the purpose of this rule the local law is sufficiently ascertained by the declaration, at all events if uncontradicted, of the local sovereign authority (m) . 3 . The act may be wromgf :ul by both the law of England and the law of the place where it was dbne. In such a case an action lies in England, without regard to the nationality of the parties (h), provided the cause of action (h) Slad's Case, Mad v. Bam- (I) lb. per Wightman and field (1673-4) in P. C. and Cli., Willes JJ. 3 Swanst. 603-4, 19 E. R. 285, (m) Carr v. Fracis Times # Co. from Lord Nottingham's MSS.; [1902] A. C. 176, 71 L. J. K. B. The M. Moxham, 1 P. Div. 107. 361 (seizure of munitions of war («) Ex. Ch. L. R. 6 Q. B. 1, imported by British merchants in 40 L. J. Q. B. 28 (1870). territorial waters of Muscat). {k) Soott V. Seymour (1862) (n) Per Cm-., The Halley, h. R. Ex. Ch. 1 H. & O. 219, 32 L. J. 2 P. O. at p. 202. "Wrongful," Ex. 61, 130 E. R. 470. as regards the foreign country, in- LOCALITY OF WRONGS. 205- is not of a purely local kind, such as trespass to land. This last qualification was formerly enforced by the technical rules of venue, with the distinction thereby made between local and transitory actions : but the grounds were substan- tial and not technical, and when the Judicature Acts abolished the technical fbrms (o) they did not extend the jurisdiction of the Court to oases in which it had never been exercised. The result of the contrary doctrine would be that the most complicated questions of local law might have to be dealt with here as matters of fact, not incidentally (as- must now and then unavoidably happen in various cases), but as the very substance of the issues; besides which, the Court would have no means of ensuring or supervising the- execution of its judgments. We have stated the law for convenience in a series of distinct propositions. But, considering the importance of the subject, it seems desirable also to reproduce the con- tinuous view of it given in the judgment of the Exchequer Chamber, delivered bj Willes J. in Phillips v. Eyre: — " Our courts are said to be more open to admit action^- 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 alto- gether, namely, those which wiould be local if they arose in England, such as trespass to land: DouUon v. Matthews (p); eludes acts which are punishable British South Africa Co. v. Com- thcugh not actionable: 3Iachado v . ■panhia de Mozambique, laat note. Fontos [1897] 2 Q. B. 231, 66 L. J. The local character of actions for Q B 542 C. A. trespass to land is maintained in (o) British South Africa Co. the United States, JBUenmood v. V. Companhia de Mofambique Marietta Chair Co. (1895) 158 [1893] A. C. 602, 63 L. J. Q. B. U. S. 105. As to the antiquity of 70_ the rule in England, see tli© case of (p) 4 T. R. 603, 2 R. E. 448 9 & 10 Ed. I. cited in Pollock & (1792: no action here for trespass Maitland, Hist. Eng. Law, i. 448- to land in Canada): approved in (465,2nd ed.). 206 REMEDIES FOR TORTS. and even with respect to those not falling within the descrip- tion oar courts do net undertake universal jurisdiction. As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England; therefore, in The Halley (q) the Judicial Com- mittee 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, therefore, as not being his agent, he wis not responsible by English law. Secondly, the act must not have been justifiable (r) by the law of the place where it was done. Therefore in Blad's Case (s), and Blad v. Bamfield (t), 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 plaintiff, an Englishman, insisted that the seizure was in violation of a treaty between this country and Denmark — a. matter proper for remonstrance, not litigation. And in Dohree v. Napier (m), Admiral Napier having, when in the service of the Queen of Portugal, captured in Portuguese water an English ship breaking blockade, was held by the Court of Common Pleas to be justified by the law of Portugal and of nations, though his serving under a foreign prince was con- trary to English law, and subjected him to penalties under the Foreign Enlistment Act. And in Reg. v. Lesley (x) an imprisonment in Chili on board a British ship, lawful there, (?) L. R. 2 P. C. 193, 37 L. J. (t) 3 Swanst. 604, 19 E. E. 285 Adm. 33 (1868). (1674). (r) See Machado v. Pontes («) 2 Bing. N. C. 781, 42 R. R. 11897] 2 Q. B. 231, 234. 598 (1836). (s) 3 Swanst. 603. (a;) Bell C. C. 220, 29 L. J. M. C. 97 (1860). LOCALITY OF WRONGS. 207 Mas held by Erie C. J., and the Court for Crown Case^ Reserved, to, be no ground for an indictment here, there being no independent law of this countrj making the act Avrongful or criminal. As to foreign laws affecting the liability of parties in respect of bygone transactions, the law is clear that, if the foreign law touches only the remedy or procedure for enforcing the obligation, as in the case of an ordinary statute of limitations, such law is no bar to an action in this country; but if the foreign law extinguishes the right it is a bar in this country equally as if the extin- guishment 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 Huher v. Sieiner {y), 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 procedure, and the time and manner of suit (tempus et modtcm actionis instituendafi), and did not affect to destroy the obligation of the contract {valor.&m contractus) ; and on the other hand by Potter v.' Bwmn (z), 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. Gold- ing (a), and ever since recognized, that, ' what is a discharge of a debt in the country where it is contracted is a dissharge of it everywhere.' So that where an obligation 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 in every court open to the creditor unquestionabLy (y) 2 Bing. N. C. 202, 42 R. R. R. R. 663. 598 _ (a) Cooke's Bankrilpt Law, 487; (z) 5 East 124, 1 Smith 351, 7 noted 5 R. R. at ppi 500, 501. 208 REMEDIES FOR TORI'S. falls to the ground. And by strict parity of roasoniiig, where an o'bligation ecc 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 disposed of) applicable to the present case " (6). The times in which actions of tort must be brought are fixed by the Statute ;of Limitations of James I. (21 Jac. 1, c. 16) as modified by later enactments (c). No general prin- ciple is laid down, but actionable wrongs are in effect divided into three classes, with a different term of limitation for each. These terms, and the causes of action to which they apply, are as foUows, the result being stated, without regard to the actual words of the statute, according to the modern construction and practice: — Six years : — Trespass to land and ^oods, conversion, and all other common law wrongs (including libel) except slander by Wiords actionable per se (d) and injuries, to the person. Fow years : — Injuries to the person (including imprison- ment) . Two years: — Slander by words actionable per se. Persons who at the time of their acquiring a cause of action are infants, or lunatics (e), have tte period of limita- (b) L. R. 6 Q. B. at pp. 28—30. being- beyond the seas had the same (c) See the text of the statutes, right by the statute of James I.,. Appendix C. but this was abrogated by 19 & (d) See Blake Odgers, Digest of 20 Vict. c. 97 (the Mercantile Law JLaw of Libel, 5th ed. 609. Amendment Act, 1856), s. 10. The (e) Plaintiffs imprisoned or existing law as to defendants. LIMITATION OF ACTIONS. 209 tion reckoned against them onlj "Jrom tlie 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 plain tiil only fnom his return. No part of the United King- dom or of the Channel Islands is deemed to be beyond seas for this purpose (/). Married women are no longer within this provision since the Married Women's Property Act of 1882 {g). If one cause of disability supervenes on ajiother unexpired one (as formerly where a woman married under age), the period of limitation probably runs only from the expiration of the latter disability {h). Where damage is the gist of the action, the time runs only from the actual happening of the damage («'). In trover the statute runs from demand on and refusal by the defendant, whether the defendant were the first con- verter of the plaintiff's goods or not {k). Actions for statutory penalties are subject to a two years' limitation by the Civil Procedure Act, 1833 (I). The com- pensation given by the Directors' Liability Act, 1890, is not a penalty within the Act (to). beyond seaa is the result of 4 & 5 Mitchell (1886) 11 App. Ca. 127, Anne, c. 3 [al. 16], s. 19, as ex- 55 L. J. Q. B. 529, afBrming ». c. plained by 19 & 20 Viot. c. 97, 14 Q. B. Div. 125. The same 8. 12. As to the retrospective effect principle applies, of course, to of s. 10, see Pardo v. Bingham special periods of limitation of (1869) L. E. 4 Ch. 735, 39 L. J. actions against public bodies or Ch. 170. officers: see Crumhie v. Wallsetid (f) See preceding note. Zocal Board [1891] 1 Q. B. 503, 60 (^) See p. 57, above. L. J. Q- B. 392. (h') Cp. Borrows v. Ellison Qc) Miller v. Dell [1891] 1 Q. B. (1871) L. E. 6 Ex. 128, 40 L. J. 468, 60 L. J. Q. B. 404, O. A. Ex. 131 (on the Eeal Property (I) 3 & 4 Wm. IV. o. 42, s. 3. Limitation Act, 3 & 4 Wm. IV. («0 Tliomson v. Lwd Clan- C.27); but the language of the two morris [1900] 1 Ch. 718, 69 L. J. statutes might be distinguished. Ch. 337, O. A. The Directors' (i) Backhouse v. Bonomi (1861) Liability Act, 1890, is repealed and 9 H. L. C. 503, 34 L. J. Q. B. replaced by the Companies (Oon- 181; Darley Main Colliery Co. v. solidation) Act, 1908, s. 84. P. — T. 14 210 REMEDIES FOR TORTS. Justices of the peace were (n) and constables (o) are pro- tected by general enactments that actions against them for any thing done in the execution of their office must be brought within six months of the act complained of; and since 1893 a similar rule has been extended to all acts done in execution or intended execution of statutory and other public duties or authorities. The fact that such an act Is " quasi-commercial " does not exclude the operation of the statute (p). The Act also makes a specially favourable provision for the costs of successful defendants (g). This does not apply to appeals or interlocutory proceedings {r) . («) 11 & 12 Vict. c. 44, s. 8: thia s. was xep., as being no longer needed, by S. L. R. Act, 1894. (o) 24 Geo. II. 0. 44, s. 8. (p) Public Authorities Protec- tion Act, 1893, 66 & 57 Vict. c. 61 . Aa to what kinds of act are in- cluded, Greenwell v. Sowell [1900] 1 Q. B,. 535, 69 L. J. Q. B. 461, G. A. As to the date from which time runs, Polley v. Fordham [1904] 2 K. B. 345, 73 L. J. K. B. 687. A company earning profit is not within the Act, though its operations may be of public utility and authorized by statute: A.-G. V. Margate Pier [1900] 1 Ch. 749, 69 L. J. Ch. 331. But a county council owning tramways is: Parker v. L. C. C. [1904] 2 K. B. 501, 73 L. J. K. B. 561. As to municipal and other lilce corpora- tions, Fielden v. Murley Corpora- tion [1900] A. O. 133, 69 L. J. Ch. 314; Jerenniah Ambler 4' Sons V. Bradford Corporation [1902] 2 Ch. 585, 71 L. J. Ch. 744, C. A.; Lyles V. Southend-on-Sea Corpora- tion [1905] 2 K. B. 1, 74 L. J. K. B. 484, C. A.; Clayton ,. Pontypridd XI. D. Council [1918] 1 K. B. 219, 87 L. J. K. B. 645. The Act has been held not applic- able to actions on ordinary con- tracts with a public authority: Sharping ton v. Ftilham Guardians [1904] 2 Ch. 449, 73 L. J. Ch. 777; Bradford Corporation v. Myers [1916] 1 A. C. 242, 85 L. J. K. B. 146. It is doubtful whether it applies to proceedings in ma,n- damiis : It. v. Port of Lo-ndon Authority [1919] 1 K. B. 176, 88 L. J. K. B. 553, O. A. It applies to servants of the Crown: The Danube II. [1920] P. 104. (?) See as to this BostocTc v. Ramsey Urban District Council [1900] 2 Q. B. 616, 69 L. J. Q. B. 945, C. A. ; the provision has led to very speculative attempts to bring cases within the Act, see Holsuorthy Urban Council v. H. Rural Council [1907] 2 Ch. 62, 76 L. J. Ch. 389, where the defendant council was not charged with (r) Fielden's Case and Jeremiah Arnble-r ^ Sons' Case, note Qp), above. LIMITATION OF ACTIONS. 211 The enforcement of statutory duties is often made subject, by the same Acts which create the duties, to a, short period of limitation. For the most part these provisions do not really belong to our subject, but to various particular branches of public law. The existence iof such provisions in Lord Campbell's Act and the Employers' Liability Act has already been noticed. 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 (s), considerably modified its literal application. Where a wrong-doer fraudulently con- ceals 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 {t). The same rule holds if the defendant has not actively concealed the fraud but the plaintiff has been igno- rant of it without any fault of his own (u) . A plaintiff may not set up by way of amendment claims in respect of causes of actiau which are barred by the statute having done anything unlawful at cil [1902] 1 Ch. 197, 71 L. J. all. It does not destroy the judge's Ch. 8. regular discretionary power. Dis- (s) See 9 Q. B. Div. 68, per missal of an action by consent is Brett L. J. equivalent for this purpose to a (0 Gibbs v. Guild (1SS2) 9 "judgment obtained" by the de- Q. B. Div. 59, 51 L. J. Q. B. fendants, and carries the statutory 313, which makes the equitable solicitor and client costs: Shmo v. doctrine of general application Hertfordshire C. C. [1899] 2 Q. B. without regard to the question 282, 68 L. J. Q. B. 857, C. A. whether before the Judicature Acts It is otherwise where the plaintiff the Court of Chancery would or accepts money paid into Court on would not have had jurisdiction in one issue, and in effect discontinues the case. the action on other issues: Smiih («) Oelkers v. Ellis [1914] 2 V. Northleach Rural District Coun- K. B. 139. 14 (2) 212 REMEDIES FOR TORTS. at the date of amendirnent, though they were not so ait the date' of the original writ (x). It has often been remarked that, as matter :Oif poilicy, the periods lof limitation fixed by the statute of James are unreasonably long for modern usage; but modern legislation has done nothing beyond removing some of the privileged disabilities, and attaching special short periods of limitation to some special statutory rights. The Statutes of Limita- tion ought to be systematically revised as a whole. We have now reviewed the general principles which are common to the whole law of Torts as to liability, as to exceptions from liability, and as to remedies. In the follow- ing 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. (k) Weldon v. Neal (1837) 19 Q. B. Div. 394, 56 L. J. Q. B. 621. ( ^13 ) Book II SPECIFIC WRONGS. CHAPTER VI. PERSONAL WRONGS. I. — Assmlt and battery. Security for the person is a,moaig the first conditions of civilized life. The la,w therefore protects us, not onlj against actual hurt and violence, but against every kind of bodily interference ajid restraint not justified or excusedl by allowed cause, and against the present apprehension of ajiy of these things. The application of unlawful forqe to ajiother constitutes the wrong called battery: an action which puts another in instant fear of unlawful force, though no force be axjtually applied, is the wr,ong called assault. These wrongs afe 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, con- sidered as civil injuries, turns on the determination of the occasions and purposes by which the use of force is justified. The elementary notions are so well settled as to require little illustration. " The least touching lof another in anger is a battery " (a); " for the law cannot draw the line between different degrees (a) Holt C. J., Cole v. Turner (1705) 6 Mod. 149, Wigmore, i. 35. 214 PERSONAL WRONGS. of violence, and therefore totally prohibits the first and lowest sta.ge of it; eviery man's person being sacred, and no other having a right to meddle with it in any the slightest manner " (b). It is immaterial not only whether the force a,pplied be sufficient 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 harm are beyond comparison more insulting and annoying than others which do cause it. 'Sp'itting "in a mail's face is more offensive tha,n 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 humaa body itself or to any- thing in contact with it; nor whether with the hand p;r anything held in it, or with a missile (d) . Battery includes assault, and although 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 prac- tice: and in the draft Criminal Code of 1879 "assault" is deliberately used in the larger popular sense. "An aissault " (so runs the proposed definition) " is the act of intentionally applying force to, the person of another directly or indirectly, or attempting or threatening by any 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 (6) Blaokst. Comm. iii. 120. liquoiem calidum " on the plain- Co) S. V. Cotesworth, 6 Mod. tiff: " casus erat huiusmodi praeoe- l'?2. dentis brevis: quaedam inulier (d) Fursell v. Home (1838) 3 proiecit super aliam mulierem N. & P. 564 (throwing water at ydromellum quod anglioe dieitur a person is assault; if the water worte quod erat nimis calidum."' falk Roman Law went even farther 138 Mass. 165, 180. in encouraging contests "gloriae («) Blackst. Comm. iii. 4. causa et virtutis," D. 9. 2, ad. 1. (x) Reece v. Taylor (1835) 4 Aquil. 7, § 4. Prize-fighting with N. & M. at p. 470. swords was common in England in (y) See Stephen's Digest of the the eighteenth century. Criminal Law, art. 200, and cp. (<) Similarly where consent is Criminal Code Bill, ss. 55 — 57 ; and given to an unreasonably dangerous for full discussion Dicey, Law of operation or treatment by one who the Constitution, 8th ed. appx. relies on the prisoner's skill, it does note iv. p. 489. There are many not excuse him from the guilt of modern American decisions, chiefly manslaughter if death ensues: in the Southern and Western ASSAULT ( SUMMARY PROCEEUINGS) . 219 Menace 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 aU, 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 same 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 action 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. Where an assault is complained of before justices under 24 & 25 Vict. c. 100, and the complaint has been dismissed (after an actual hearing on the merits) {z), either for want of proof, or on the ^ound that the assault or battery was " justified or so trifling as not to merit any punishment," or the defendant has been oonvioted, and paid the fine or suffered the sentence, as the case may be, no further proceedings either civil or criminal can be taken in respect of the same assault (a). Stat&j. A case in the Y. B. Ed. II. (a) 24 & 25 Vict. c. 100, ss. 42 381, "Trespass" (the placita are — 45. Masper v. Brown (1876) 1 not numbered in this volume) sug- C. P. I>. 97, deoidoa that the Act gests that as late as 1319 " Son is not confined to suits strictly for assault demesne " was not a good the same cause of action, but plea; but the special verdict as| extends to bar actions by a hus- reported said only that the defen- band or master for consequential dant was pursued by the plaintiff, damage: the words of the Act are not that he was beaten, and it may " same cause," but they are equLva- have been thought insufBoient on lent to ''same assault" in the that ground. i earlier Act, 16 & 17 Vict. c. 30, (z) Meed v. NuU (1890) 24 s. 1, repealed by 24 & 25 Vict. Q. B. D. 669, 59 L. J. Q. B. 311. o. 95. 220 PERSONAL WRONGS. II.— False Imprisonment. Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law. The in- fliction of such restraint is the wrong of false imprisonment; which, though generally coupled with assault, is nevertheless a distinct wrong. Laying on of hands or other actual con- straint of the body is not a necessary element; and, if " stone walls do not a prison make " for the hero or the poet, the law none the less takes notice that there may be an effectual imprisonment without walls of any kind. " Every confinement of the person is an imprisonment, whether it be in a common prison or in g, 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 imprisop- ment to prevent him from leaving the room in which he is (c). Where one man has entered upon another's tene- ment under a contract or a licence, he cainnot complain of being falsely imprisoned merely because he is not allowed to go out in a manner inconsistent with the terms on which he entered (d), or refused special facilities at a time not con- templated between the parties (e). The detainer, however, must be such as to limit the party's freedom of motion in all directions. It is not an imprisonment to obstruct a man'sjpassage in one direction only. "A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only ; it may in itself be moveable or (6) Blackst. Comm. iii. 127. (d) Robinson v. Balmain Nmo (c) Warner v. Riddiford (1858) Femj Co. [1910] A. O. 295, 79 4 C. B. N. S. 180, 114 R. R. 658; L. j. P. C. 84 (J. C). «veu if he is disabled by sickness (e) Herd v. Weardale Steel, from moving at all: the assumption Coul and Coke Co. [1915] A. C. of control is the main thing: 67, 84 L. J. K. B. 121. The real Grainger v. Hill (1838) 4 Bing. difficulty there was on the facts. J^. C. 212. FALSE IMPRISONMENT. 221 fixed; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping: he must be prevented from leaving that place within the limit of which the party imprisoned could be confined." Other- wise every obstruction of the exercise of a right may be treated as an imprisonment (/) . A man is not imprisoned who has an escape open to him (ff) ; that is, we apprehend, a means of escape which a man of ordinary ability can use without peril of life or limb. The verge of a cliff, or the foot of an apparently impracticable wall of rock, would in law be a suflicient boundary, though peradventure not suffi- cient in fact to restrain an expert diver or mountaiineer. So much as to what amounts to an imprisonment. When an action for false imprisonment is brought and defended, the real question in dispute is mostly, though not always, whether the imprisonment was justified. One could not account for all possible justifications except by a full enumeration of all the causes for which one may law- fully put constraint on the person of another: an under- taking not within our purpose in this work. We have considered, under the head of General Exceptions (h), the principles on which persons acting in the exercise of special duties and authorities are entitled to absolute or qualified immunity. With regard to the lawfulness of arrest and imprisonment in particular, there are divers and somewhat minute distinctions between the powers of a peace-officer and those of a private citizen (i) : of which the chief is that (/) Bird V. Jones (1845) 7 Q. B. (A) Ch. IV., pp. 117, 120 sqq.,. 742, 15 L. J. Q. B.. 82, 68 R. R. above. 564, per Coleridge J. (J) Stephen, Dig. Crim. Proc. (g) Williams J., ib. To the c. 12, 1 Hist. Cr. Law, 193: and same effect Patteson J.: " Impn- see Hogg v. Ward (1858) 3 H. & somnent is ... a total restraint N. 417, 27 L. J. Ex. 443, 117 of th« liberty of the person. " E. E. 765. Lord Demnan C. J. dissented. 222 PERSONAL WRONGS. the officer may without a warraait arrest on reasonable sus- picion of felony, 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 and the particular felony for which the arrest was made (k) had actually been committed (I) . The modem policeman is a statutory constable having all the powers which a constable has by the common law (to), and special statutory powers for dealing with various particular offences (n). Every one is answerable for specifically directing the arrest or imprisonment of anotlier, as for any other act that he specifically com'mands or ratifies; and a superior officer who finds a person taken into custody by a constable under his orders, and then continues the custody, is liable to an action if the original arrest was unlawful (o). Nor does it matter whether Ixe acts in his own interest or in another's (p). 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. Rather troublesome doubts may arise in particular cases as to the quality of the act complained of, whether in this (/;) Walters v. W. li. Smith 4' powers of constables and others to Son [1914] 1 K. B. 595, 83 L. J. arrest for preservation of the K. B. 335. peace, which seem not free from (I) This applies only to felony: doubt, see Timothy v. Simpson "the law [i.e., common law] does (1835) 1 C. M. & R. 757, 40 R. R. not excuse constables for arresting- 722, Wigmore, ii. 554, per Parke B. persons on the reasonable belief («) Stephen, 1 Hist. Or. Law, that they have committed a mis- 200. demeanour:" see Griffin v. Cole- (o) Griffin v. Coleman, note Q,). man (1859) 4 II. & N. 265, 28 (p) Barker v. Brahain (1773) 2 L. J. Ex. 134, 117 R. R. 426. W. BI. 866 (attorney suing- out (wi) Stephen, 1 Hist. Cr. Law, and procuring execution of void 197, 199. As to the common law process). FALSE IMPRISONMENT. 223 sense discretionary, or ministerial only. The distinction between a ser^-^ant and aji " independent contractor " (q) with regard to the employer's responsibility is in some measure analogous. A party 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 here- after) (r); but he cannot be sued for false imprisonment, or in a court which has not jurisdiction over cases od: malicious prosecution. " The distinction between false im- prisonment 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 imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a, judicial officer are interposed between the charge and the 'imprison- ment " (s). Where an officer has taken a supposed offender into custody of his own motion, a person who at his request signs the charge-sheet does not thereby make the act his own {t), any more than one who certifies work done under a contract thereby makes the contractor his servant. But where an officer consents to take a person into custody only .upon a charge being distinctly made by the complainant, (g) P. 80, above. that thero is reasonable cau3«: (r) See Fitzjohn v. MacTcinder Hope v. Evered (1886) 17 Q. B. D. (1861) Ex. Ch. 9 C. B. K. S. 505, 338, 55 L. J. M. C. 146; Lea v. 30 L. J. C. P. 257, 127 B. R. 746. Charrington (1889) 23 Q. B. Div. (s) Willes J., Austin v. Dov>- 45, 272, 58 L. J. Q. B. 461. ling (1870) L.' E. 5 C. P. at (t) Orinham v. Willey (1859) 4 p. 540; West v. Smallwood (1838) H. & N. 496, 28 L. J. Ex. 242, 3 M. & W. 418, 49 E. R. 666; 118 R. R. 573, followed by C. A., Bigelow L. C. 237; nor does an Sewcll v. National Telephone Co. action for malicious prosecution lie [1907] 1 K. B. 557, 76 L. J. K. B. "where tho judicial officer has held 196. on a true statement of the facts 224 PERSONAL WRONGS. and the charge-sheet signed by him, there the person signing the charge-sheet must answer for the imprisonment as well as the ofSoer (u). 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 remajad, which is the act of the magistrate (x) . 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 jury (_y); not of law, because "no definite rule can be laid down for the exercise of the judge's judg- ment " {z). 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 of facts to the jury and the determination of the law to tha judjge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority (a) . The tru,th seems to be that the question was (a) Austin v. Bowling (1870) Q. Bl. 871, 18 L. J. Q. B. 76. L, E. 5 C. P. 534, 39 L. J. O. P. (y) Hailes v. Marks (1861) 7 260. A3 to the protection of H. & N. 56, 30 L. J. Ex. 3S9, parties issuing an execution in 126 E. E. 329. regular course, though the judg- (s) Lister v. Ferryman (1870). ment is afterwards set aside on L. E. 4 H. L. 521, 535, per Lord other grounds, see Smith v. Sydney Chelinsford. So per Lord Oolonsay (1870) L. E. 5 Q. B. 203, 39 L. J. at p. 540. Q. B. 144. One case often cited, (o) Lord Campbell in Broughton Flewster v. Royle (1808, Lord v. Jackson (1852) 18 Q. B. 378,, BUenborough) 1 Camp. 187, seems 383, 21 L. J. Q. B. .266; Loo^i not good authority: see Gosden v. Hatherley, Lord Westbury, and Elphick (1849) 4 Ex. 445, 19 L. J. Lord Colonsay (all familiar with Ex. 9, 80 E. E. 667; and GrinJiam procedure in which there was no V. Willey, last note. jury at all) in Lister v. Ferryman^. {x) Lock v. AsUon (184S) 12 L. E. 4 H. L. 531, 538, 539. PEOTECTXON OF PERSONAL RELATIONS. 225 formerly held to be one of law, and has for some time been tending to become one of fact, "but the change has never been formally recognized. The only thing which can be certainly affirmed in general terms about the meaning of " reasonable cause " in this Qonnexion is that on the one hand a belief honestly entertained is not of itself enough (6) ; on the other hand, a man is not bound to -wait u.ntil he is in possession of such evidence as would be admissible and sufficient for prosecuting the offenoe to conviction, or even of the best evidence which he might obtain by further inquiry. " It does not follow that because it would be very reasonable bo make further inquiry, it is not reasonahle to act without doing so " (c). It is obvious, also, that the existence or non-existence of reasonable cause must be judged, not by the event, but by the party's means of knowledge at the time. Although the judge ought not to leave the whole question of reasonable cause to the ju,ry, there seems to be no objection to his asking the jury, as separate questions, whether the defendant acted on an honest belief, and whether he used reasonable care to inform himself of the facts {d). III. — Injuries in Family Relations. Next to the sanctity of the person comes that of the personal relations constituting the family. Depriving a husband of the society of his wife, a parent of the com- (b^ Broughton\. Jackson (\&52) p. 202, approved by Lord 18 Q. B. 378, 21 L. J. Q. B. Hatherloy, ». v. nom. Lister \. 266: the defendant must show Ferryman, L. E. 4 H. L. at "facts which would create a p. 533. Compare the authorities reasonable suspicion in the mind on maUcious prosecution, pp. 316, of a reasonable man," per Lord 317, below. CampbeU C. J. (<^) H. Stephen on Malicious (c) Bramwell B., Ferryman v. Prosecution, ch. vii. Lister (1868) L. H. 3 E.\. at P. — T. 226 PERSONAL WRONGS. panionship and confidence of liis children, is not less a personal injury, though a less tangible one, than beating or imprisonment. The same may to some extent be said of the relation of master and servant, which in modern law is created by contract, but is still regarded for some purposes as belonging to the permanent organism of the family, and having the nature of status. It seems natural enough that an action should lie at the suit of the head of a household for enticing away a person who is under his lawful autho- rity, be it wife, child, or servant: there may be difficultly in fixing the boundary where the sphere of domestic rela'tion ends and that of pure contract begins, but that is a diffi- culty of degree. That the same rule should extend to anj, wrong done to a wife, child, or servant, and followed as a proximate consequence by loss of their society or service, is equally to be expected. Then if seduction in its ordinary sense of physical and moral corruption is part of the wrong- doer's conduct, it is quite in accordance with principles admitted in other parts -of the law that this should be a recognized ground for awarding exemplary damages. It is equally plain that on general principle a daughter or servant can herself have no civil remedy against the seducer, though the parent or master may: no civil remedy, we say, 'for other remedies have existed and exist. She cannot complain of that which took place by her own consent. Any different rule would be an anomaly. Positive legislation might intro- duce it on grounds of moral expediency; the courts, which have the power and the duty of applying known principles to new cases, but carmot abrogate or modify the principles themselves, are unable to take any such step. 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 LOSS OF SERVICE. 227 and injustice which flow from disguising real analogies under transparent but cumbrous fictions. But ais 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 hj importing into them the fiction of actual service; with the result that in the class of casiea most prominent in modern practice, namely, actions brought by a parent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff's right has come to be, not whether he has been injured as the head of a family, but whether he can make out a constructive " loss of service " (e). The common law provided a remedy by writ of trespass for the actual taking away of a wife, servant, or heir, and perhaps younger child also (/). An 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. The language of pleading was per quod consartitom, or aervitiiim aniisit. Such a cause of action was quite distinct from that which the husband might acquire in right of the wife, or the servant in his own right. The trespass is one, but the remedies are ■" diversis respectibus " (g). " If my servant is beat, the (e) The statement here was ap- I; Blackst. Comm. iii. 139. The proved by FitzGibbon L. J. in writ was de uxore ahducta cum Murray v. Fitzgerald [1906] 2 bonis viri sui, or an ordinary writ I. R. 254, 265. Christian's note of trespass (F. N. B. 52 K); a •on BJackstone Hi. 142 is still not case as late as the Bestoration is amiss, though the amendments of mentioned in Bao. Abr. v. 328 the 19th century in the law of (ed. 1832). evidence have removed some of the (g') Y. B. 19 Hen. VI. 45, ^ievanoes mentioned. pi. 94. (/) F. N. B. 89 O, 90 H, 91 15(2) '228 PERSONAL WRONGS. master shall not have an action for this battery, unlessi the battery is so great that by reason thereof he loses th© service of his servant, but the servant himself for every small battery shall have an action; and the reasion of the difference is, that the master has not any damage by the personal beating of his servant, but by reason of a per quod, viz. per quiod servitium, dc. amisit ; so that the original act is not the cause of his action, but the conse- quent 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 " (g). The same rule applies to the beating or mal- treatment of a man's wife, provided it be " very en,ormous, so that thereby the husband is deprived for ajiy time of the company and assistance of his wife " {h). Against an adulterer the husband had an action at common law, commonly knovsm 'as an action of criminal conversation. In form it was generally trespass vi et armis, on the theory that " a wife is not, as regards her husband, a free agent or separate person " (^), and therefore her con- sent was immaterial, and the husband might sue the adulterer as he might have sued any mere trespasser who beat, im- prisoned, or carried away his wife against her will. Actions for criminal conversation were abolished in England on the establishment of the Divorce Court in 1857, but damages (g) Robert Marys's case (1612) 95 R. R. at p. 524: as to the Sta- 9 Co. Rap. 113 a. But a master tute of Labourers, 2 E. & B. at shall not, as the law now stands, p. 254, 95 R. R. at p. 527. Case- have an action for a trespass would also lie, and the common whereby his servant is killed. See form of declaration was for some p. 63, above. time considered to be rather case (K) Blaekst. Comm. iii. 140. *^'"' trespass: Macfadzcn v. Oli- rant (1805) 6 East 387. See (t) Coleridge J. in Lumley v. note (J) below. Gye (1853) 2 E. & B. at p. 249, LOSS OF SEEVICE. 229 ■can be claimed on the same principles in proceedings under the jurisdiction then instituted {j). In practice these actions were always or almost always instituted with a view to obtaining a divorce by private Act of Parliament; the rules of the House of Lords (in whioh 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 two in the Ecclesiastical Court. An action also laj for enticing away a servant (that is, procuring him or her to depart voluntarily from the master's service), and also for knowingly harbouring a servant during breach of service; it has been argued (Jt) that this was not by the common law, but only after find by virtue of the Statute of Labourers (J), but all the decisions assume that the action lies at common law (w). Qu^te modern examples are not wanting {n). (}") 20 i: 21 Viot. o. 85, S3. 33, pass was the only proper form: •59. ibid., Ditcham v. Bond (1814) 2 (k) See note (/) last page. M. & S. 436, see 14 E. B. 836 n. (I) 3 Edw. III. (a.d. 1349): It was formally decided as late as tWs statute, passed in consequence 1839 (without giving any other of the Black Death, marks a great reason than the constant practice) crisis in the history of English that trespass or caso might be used agriculture and land tenure. The at tho pleader's option: Cliamber- action was generally on the case, lain v. Ilazelvx>od, 5 M. & W. 515, but it might be trespass: e.g., 9 L. J. Ex. 87. The only conclu- Tullidge v. Wade (1769) 3 Wils. sion which can or need at this 18, an action for seducing the day be drawn from such fluctua- plaintiff's daughter, where the de- tions is that the old system of claratiou was in trespass vi et pleading did not succeed in its . E. 3 V. Eoss, last note. Even without Q. B. 602. a quasi-parental relation a, sister (6) Rist v. Faux (1863) Ex. Ch. may be tlie servant of her brother, 4 B. & S. 409, 32 L. J. Q. B. 386, and this though they are co-owners 129 R. R. 783. of th« house: Murray v. Fitzgerald (c) Grinnell v. Wells (1844) 7 [1906] 2 I. R. 254, C. A. This M. & Gr. 1033, 14 L. J. 0. P. cannot be extended to a person in 19, 66 R. R. 835; Eager v. loco parentis who is not the head Gi-imwood (1847) 1 Ex. 61, 16 of the family. The plaintiff must L. J. Ex. 236, 74 E. R. 584, be a person to whom some eerviw wher« the declaration was framed is rendered or due: Peters v. Jones in trespass, it would seem pur- [1914] 2 K. B. 781, 83 L. J. K. B. posely on the chance of the court 1115. holding that the per quod ser- (z) Terry v. Hutchinson (1868) vitium amisit could be dispensed L. R. 3 Q. B. 599, 37 L. J. Q. B. with. 257. • (d) See Terry v. Hutchinson, (ft) Littledale J. cited with ap- note (z). SEDUCTION. 233 or a stranger in tlood who lias adopted the person seduced (e). On the same principle or fiction of law a parent can sue in his own tiame for any injutry done to a child living under his care and bontrol, 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" (/). The capricious workipg of 'the action for seduction in modern practice has often been the subject of censure. Thus, Serjeant Planning wrote two generations ago: "the quasi fiction of seruititcm 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 buead amongst strangers " (^r) . All devices for obtaining Nvhat is virtually a new remedy by straining old forms and ideas beyond their original in- tention are liable to this kind of inconvenience. "It has been truly said (h) that the enforcement of a substantially just claim " ought not to 'depend upon a mere fiction over which the courts possess no control." We have already pointed out the bolder course which might have been taken without doing violence to any legal principle. Now it is too late to go back upon the cases, and legislation would also be difficult and troublesome, not so much from the nature of the subject in itself as from the variety of irrelevant matters that would probably be imported into any discussion pf it at large {i). (e) Irwin v. Dearman (1809) 11 (g) Note to Chinnell v. Wells, 7 East 23, 10 B. R. 423. Man. & Gr. at p. 1044, 66 B. B. (/) Hall V. Hollander (1825) 4 at p. 843. B. & O. 660, 28 B. B. 437. But (A) Starkie's note to Speight v. this case do«s not show that, if Oliviera (1819) 2 Stark. 496, 20 a jury chose to find that a very B. B. 730. young child was capable of service, (t) See note Qp), p. 230, above, their verdict would be disturbed. 234 PERSONAL WRONGS. It would be merely cuxious, and hardly profitable in any just proportion to the labour, to inquire how far the fiction of oonstructive service is Ijorne out by the old law of the action for beating or caj-'rying away a servant. ' Early in the 15tli century we find a dictum that if a man serves me, and stays with me 'at his own free will, I shall have an action for beating him, on the ground of the loss of his service (k); but this is reported wi,th a quaere. A generation later (l) we find Newton C. J. saying that a relation of service be- tween father and son cann,ot 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, hut as to that ease Newton's opinion is express that some positive evidence of service, beyond living with the parent hs 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.) (m) in holding that a binding con- tract of service need not be shown. Indeed, it was better merely to allege the service as a fact (m servitio sua lexistentem cepit), for an action under the Statute of Labourers would not lie "where there was a special contract varying from the retainer oontemplated by the statute, and amounting to matter of covenant (w). A similar cause of action, but not quite the same, was recognized by the medieval common law where a man's ser- vants or tenants at will (o) were compelled by force or menace (A) 11 Hen. IV. fo. 1—2, pi. 2, (Ne\rton C. J.; Fulthorpe, Ascue per Huls J. (a.d. 1410). or Ayscoglie, Portington JJ.); (I) 22 Hen. VI. 31 (a.d. 1443). F. N. B. 168 F. (m) L. E. 2 0. P. 621-2; and (o) If the tenancy were not at see Martinez v. Gerber (1841) 3 will, the departure would be a Man. & Gr. 88, 60 E. R. 466. breach of contract; this introduces («) 22 Hen. VI. 32 b, per Cur. a new element of difficulty, never INTIMIDATION OP SERVANTS, ETC. 235- to depart from their service or tenure. " There is another writ of trespass," writes Titzherbert, " ag-ainst 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 houset to oome out thereof" (p). Examples of this kind are not uncommon down to the sixteenth century or even later; we find in the pleadings considerable variety of circumstance, which may be taken as expansion or specification of the alia enormia regularly mentioned in the conclusion of the writ (g). expressly faced by our courts before Lumley v. Gye, of ■which. more elsewhere. (p) F. N. B. 87 N.; and see the form of the writ there. It seems therefore that " picketing," so soon as it exceeds the bounds of persuasion and becomes physical' intimidation, is at common law a trespass against the employer. The modern cases of injunction, Lyons v. Wilkins [1899] 1 Ch. 255, 68 L. J. Ch. 146, O. A., and one or two others, are grounded not on the common law but on the com- mission of statutory offences under the Conspiracy and Protection of Property Act, 1875. (?) 14 Edw. IV. 7, pi. 13, a writ " quare tenentes suoa ver- beravit per quod a tenura oua reoesserunt"; 9 Hen. VIl. 7, pi. 4, action for menacing plain- tiff's tenants at will " de vita et mutilatione membrorum, ita quod recesserunt de tenura " ; Eastell, Entries 661, 662, similar forms of declaration; one (pi. 9) is for menacing the king's tenants, so that " negotia sua palam incedere nom audebant"; similar case, Select Cases in Chancery, Selden Soc. 1896, pi. 51, treated as a common law cause of action for whicli the plaintiff could get no remedy because the defendant was so great a maintainer, extortioner and corrupter of juries; Garret v. Taylor, Cro. Jac. 567, action on the case for threatening the plain- tiff's workmen and customers, "to- mayhem and vex them with suits if they bought any stones"; 21 Hen. VI. 26, pi. 9, "manassavit vulneravit et verberavit " : note that in this action the " vulneravit " is not justifiable and therefore must be traversed, otherwise under a plea of son assault demesne: 22 Ass. 102, pi. 76, is for actual beat- ing, aggravated by carrying away timber of the plaintiff's (meri- mentum=materiamen, see Du Cange, s. v. materia; in Anglo- French meresme'). In A.D. 1200 an action is recorded against one^. John de Mewio for deforcing the plaintiff of land which she had already recovered against him by judgment, "so that no one dare till that land because of him, nor could she deal with it in any way because of him ": Select Civil- Pleas, Selden Soc. 1890, ed. BaU- ■236 PERSONAL WRONGS. It seems reasonable, on the analogy of these cases, that an action (which in common-law pleading would be a special action on the case) should lie against those who attempt to injure or coerce the plaintiff by driving away his cus- tomers (?■) ; for it is not obvious, on any admitted principle, why the relation of tenant or servant should be material except as to the form of action. In recent times the machinery of workmen's trade unions and of employers' associations has made it possible for oppression of this kind to be practised on a large scale against persons who break or are supposed to have broken the rules of the union or ■association, or are otherwise obnoxious to it, and actions have been brought in respect of such proceedings, and allowed ty the House of Lords and the Court of Appeal. But these cases will be better dealt with later among those personal wrongs which affect a man's condition generally; for their importance and difficulty consist in the substantial grievance I)eing independent of any bodily violence either used or threatened, however much practices of this sort may tend to run into acts of violence if not checked at an earlier stage. don, vol. 1, pi. 7. Cp. Reg-. Brev. plaintifE's ship. For an example . (1595) 104 a, " quando tenenbes of a similar writ for menacing the mon audent morari super tenuris plaintiff himself, see 7 Edw. IV. suis," and Tarleton v. McGawlnj 24, pi. 31. (1794) 1 Peake 270, 3 R. R. 689, (r) See Pratt v. British Medical action for deterring negroes on the Association [1919] 1 K. B. 244, •coast of Africa from trading with 259, 88 L. J. K. B. 628. ( 237 ) CHAPTER VII. DEFAMATION. Eeputation and honour are no less precious to good men than bodily safety and freedom. In some eases 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 th& 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 exclu- sively proper to the criminal law and procedure. The wrong pf defamation may be committed either by way ,of speech, or by way of writing or its equivalent. For this purpose it may be taken that significa,nt gestures (as the finger-language of the deaf and dumb) are in the same case with audible words; and there is no doubt that drawing, printing, and engraving, a^d every other use of permanent visible symbols to convey distinct ideas, are in the same case with writing. The term slander is appro- priated to the former kind of utterances, libel to the latter (■«). Using the terms " written " and " spoken " in an extended sense, to include the analogous cases just men- tioned, we may say that slander is a spoken and libel is a (a) Quisre, whether defamatory would be a libel or only a potential matter recorded on a phonograph slander. 238 DEFAMATION, "written defamation. The law has made a great difference letween the two. Libel is an offence as well as a wrong, but ^slander'is a civil wrong only (&). Written utterances aje, in the absence of special ground of justification or excuse, wrongful as against any person whom they tend to bring into hatred, contempt, or ridicule. Spoken words are action- able only when special damage can be proved to have been their proximate consequence, or when they convey imputa- 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 con- troversies under the protection and with the solemnities of ■civil justice), nor has any been more perplexed with minute and barren distinctions. This latter remark applies especially to the law of slander; for the law of libel, as a civil cause of action, is indeed overgrown with a great mass of detail, but is in the main sufficiently rational. In a work like the present it is not possible to give more than an outline of the subject. Those who desire full information will find it in Mr. Blake Odgers' excellent and exhaustive mono- graph (c). We shall, as a rule, confine our authorities and illustrations to fairly recent cases. (b) Soandalum magnatum was ease of scandalum magnatum in 30 an exception to this. It depended Ass. 177, pi. 19, where the defen- on early statutes which, after dant only made matters worse by being long obsolete in practice', alleging that the plaintiff was ex- were repealed by the S. L. E. Act, communicated by the Pope. 1887. See Blake Odgers, Digest (c) A Digest of the Law of Libel of the Law of Libel and Slander, and Slander, &c. By W. Blake* 74. There is a curious llth cent. Odgers, London, 5th ed. 1911. SLANDER AND LIBEL. 239 1. — Slander. Slander is an actionable wrong when special damage can be sho^vn to have followed from the utterance of the words complained ,of, and also in the following cases: Where the words ,obviously impute, or may fairly be understood as imputing, a criminal offence (d). 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 being spoken of a man in his calling (for that specific connexion must be shown) they mani- festly tend to prejudice him therein. 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 plaintiff'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 after-thoughts, devised to justify the results of historical accident: a thing so common in current expositions of English law that we need not dwell upon this example of it (e). The rules are settled; high (d) As where the plaintiff is refuse to. presume it from the eharged with having brought a direct oral cotmrnumcatioii of the blackmailing action: Marks v. same matter to the persons most Samuel [1904] 2 K. B. 287, 73 liliely to act upon it. Mr. Joseph X. J. K. B. 587, C. A. K. Fisher, in Law Quart. Eev. x. (e) See Blake Odgers, pp. 2 — 4, 158, traces tlie distinction to "the and 6 Amer. Law Bev. 593. It adaptation bj' the Star Chamber seems odd that the law should of the later Roman law of libellus presume damag'e to a man from famosus.'' Cp. Lord Haldane's printed matter in a, newspaper opinion in Jones •/. Jones [1916] 2 which, it may be, none of hia ac- A. O. at p. 490, suggesting that quaintances are likely to read, and special temporal damage was re- 240 DEFAMATION. authorities differ on the question whether they deserve tO' be called principles (/). No such distinction exists 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 to bring him into hatred, contempt, or ridicule. When we call a statement •prima facie libellous, we do not mean that that ,the person making it is necessarily a wrong-doer, but that he will be so held unless the statement is found to be within some recognized ground of justification or excuse. Such are the rules as to the actionable quality of words, if that be a correct expression. The authorities by which they are illustrated, and on which they ultimately rest, are to a great extent antiquated ,or trivial (gr) ; the rules them- selves are well settled in modem practice. Wliere " special damage " is the ground of action, we have to do with principles already considered in a former chapter {h): .namely, the damage must be in a legal sense the natural and probable result cf the words complained of. It has been said that it must also be " the legal and natural consequence of the words spoken " in this sense, that if A. quired in slander to avoid the [1916] 2 A. C. at p. 500. No, per appearance of encroaching on Lord Wrenbury, ib. at p. 506, and spiritual jurisdiction. See, too, the Court of Appeal [1916] 1 K. B. "The Eng-Ush Law of Defama- at p. 358. tion," by Mr. Frank Carr, L. Q. (g) The old abridgment?, e.g. E. xviii. 255, 388, and " History Rolle, sub tit. Action sur Case,, of the Law of Defamation," by Pur ParoUs, abound in examples Mr. Van Vechten Veeder, Select many of them sufficiently gro- Essays in Anglo-American History, tesque. A select group of casesv. ill. 446, being a critical study down is reported by Coke, 4 Hep. 12 b — to 1909. The Romanist influence 20 b. seems generally admitted. (A) Pp. 34 sqq., above. (/) Yes, per Lord Sumner SLANDER : SPECIAL DAMAGE. 241 speaks -nords in disparagement of B. which are not action- able ipe?- S6, 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 sub- sisting contract), B. has no remedy against A., but only against C. (^). But this doctrine is contrary to principle: the question is not whether C.'s act was lawful or unlawful, but whether it might have been in fact reasonably expected to result from the original act of A. And, though not directly overruled, it has been disapproved by so much and such weighty authority that we may sa,y it is not law (fc) . There is authority for the proposition that where spoken words, defamatory but not actionable in themselves, are followed by special damage, the cause of action is not the original speaking, but the damage itself {I). This does not seem to affect the general test of liability. Either way the speaker will be liable if the damage is an intended or natural conse- quence of his words, otherwise not. It is settled however that no cause of action is afforded by special damage arising merely from the voluntary repetition lof spoken words by some hearer who was not under a legal or moral duty to repeat them. Such a con- sequence is deemed too remote (to). 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, olBcial, or moral duty ought to repeat it, he will be Kable for the consequences (n). (i) Vicars V. Wilcocks (1806) 8 (m) Parkins v. Scott (1862) 1 East 1, 9 B. K. 361. H. & O. 153, 31 L. J. Ex. 331, * (A) Lynch v. Knight (1861) 9 130 E. R. 433 (wife repeated to H. L. C. 577, 131 B. B. 347. See her husband gross language used notes to Vicars v. WilcocJcs, in 2 to herself, wherefore the husband Sm. L. C. was so much hurt that he left her). (J) Maule J. ex relat. Bram- («) Blake Odgers, 414. Riding weU L. J., 7 Q. B. D. 437. v. Smith (1876) 1 Ex. D. 91, 4,) P. — T. 16 242 DEFAMATION. Losing the general good opinion of one's neighbours, Gonsortiimi vicinorum as the phrase goes, is not of itself special da,mage. A loss ,of some ma,terial 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 oonsortium vicinorum, and therefore there was no ground of action (o). Yet the loss of consortium, as between husband and wife, is a special damage of which the law will take notice (p), and so is the loss of the voluntary hospitality of friends, this last on the ground that a dinner at a friend's house and at his expense is a thing lof some temporal value (q). Actual membership of a club is perhaps a thing of temporal value for this purpose, but the mere chance of being elected is not: so that an action will not lie for speaking disparaging words of a candidate for a club, by meaas 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" (r). Trouble of mind caused by defamatory w.ords is not sufficient special damage, and illness consequent upon such trouble is too remote. " Bodily pain or suffering cannot be said to be the natural result in all persons " (s). L. J. Ex. 281, muBt be taken not (g) Davies v. Solomon (1871) to interfere with this distinction, L. R. 7 Q. B. 112, 41 L. J. Q. B. see per C. A. in ItatcUffe v. Evans 10. [1892] 2 Q. B. 524, 534, 61 L. J. (r) Chamberlain v. Boyd (1883) Q. B. 535. 11 Q. B. Div. 407; per Bowen (o) Roberts v. Roberts (18(54) 5 L. J. at p. 416, 52 L. J. Q. B. B. & Si. 384, 33 L. J. Q. B. 249, 277. The damage was also held 136 B. E. 601. too remote. (p) Lunch V. Knight (1861) 9 (s) Allsop v. Allsop (1860) 5 H. L. 0. 577. H. & N.. 534, 29 L. J. Ex. 315, SLANDER : IMPUTATION OF CRIME OR IMMORALITY. 243 As 'to the several classes lof spoken words that may be actionable .without special damage: words sued on as im- puting .crime must amount to a charge of some offence which, if proved against the party to whom it is imputed, would expose him to imprisonment or other corporal penalty (not merely to a fine in the first instance, with possible im- prisonment in default of payment) (t). The offence heed not be specified with legal precision, indeed it need not he specified at all if the words impute felony generally. But if particulars are given they must be legally consistent with the offence imputed. It is not actionable per se to say of a man that he stole the parish bell-ropes when he was churchwarden, for the legal property is vested in him ex officio (m) ; it might be otherwise to say that he fraudulently converted them to his own use. The practical inference seems to be that minute and copious vituperation is safer than terms of general reproach, such as " thief," inasmuch as a layman who enters on 'details will probably make some impossible combination. It is not actionable as against a corporation (though it may be as against individual members or offioers) to charge 120 R. R. 712. This doctrine is States, that such words are action- limited to the element of defama- able when the offence which they tion, see p. 52, above. charge renders the party liable to (0 See Orniiston v. . Blake 1 Wm. & M. sess. 2, i;. 2, "That Odgers, 233 sqq. A magistrate the freedome of speech and do- acting judicially is a judge within bates or proceedings in Parlyament this rule: Law v. Llewellyn [1906] ought not to be impeached or 1 K. Bi. 487, 75 L. J. K. B. 320, questioned in any court or place C. A. So is an ofScial receiver 266 DEFAMATION'. is not open to discussion whether the words wore or were not in the nature of fair comment on the matter in hand^ or otherwise relevant or proper, or whether or not they were used in good faith. Parties, advocates, 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 say in the course of the proceedings and with reference to the matter in hand is exempt from question elsewhere. It is not slander for a prisoner's counsel to make insinuations against the prose- cutor, which might, if true, explain some of the facts proved,, however gross and unfounded those insinuations may be (n) ; nor for a witness after his cross-examination to volunteer a statement of opinion by way of vindicating his credit,, which involves a criminal accusation against a person wholly unconnected with the case (o). The only limitation is that the words must in some way have reference to the iilqairj' the Court is engaged in. A duly constituted military court of inquiry is for this purpose on the same footing as an ordinary court of justice (p). So is a select committee of" reporting to the Court under the {p) Sawkitis v. Lord Rokeby Companies Winding-up' Act, 1890: (1873-5) Ex. Oh. and H. L., L. E. BoUomley v. Brougham [1903] 1 8 Q. E. 255, 7 H. L. 744, 45 L. J. K. B. 584, 77 L. J. K. B. 311. Q. B. 8, see opinion of judges 7 («) Mumler v. Lamb (1883) 11 H. L. at p. 752; Hawkins v. Pritico- Q. B. Div. 588, where authorities Edioard oj Saxe Weimar (1876) 1 are collected. Q. B. H. 499, 45 L. J. Q. B. 567. (o) Seaman v. H etherclift Similarly of a special statutorj- (1876) 2 C. P. Div. 53, 46 L. J. miUtary tribunal: Co-partnership- C. P. 128. But there is no privi- Farms v. Harvey-Smith [1918] 2 lege for those who procure other K. IS. 405, 88 L. J. K. B. 472. persons to give false and defama- It is unfortunate that the distino- tory evidence; Rice v. Coolidge tion between judicial and executive (1876) 121 Mass. 393, Ames, Sel. immunity has not always been Ca. 616. For American views on attended to even in judicial the main question sec Ames, op. utterances. cit. 438. OFFICIAL PRIVILEGE. 267 the House of Commons (q). Statements coming within this rule are said to be " absolutely privileged." The reason for precluding all discussion of their reasonableness or good faith before another tribunal is one of public policy, laid down to the same effect in all the authorities. The law does not seek to protect a dishonest witness or a reckless advocate, but deems this a less evil than exposing honest witnesses and advocates to vexatious actions. As to reports made in the course of naval or military duty, but not with referenoe to any pending judicial pro- ceeding, 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 determine questions of naval or mili- tary discipline and duty. But the decision is not received as conclusive (r). Communications relating to affairs of State and made by one officer of State to another in the course ,of duty are absolutely privileged on the ground of public policy. Moreover, there is a wider rule that documents containing such communications cannot be produced in evidence for any purpose (s); unless, of course, they have been published by authority. (r/) Goffin V. Domxelly (1881) 6 enee of the Judicial Committoe to Q. B. D. 307, 50 L. J. Q. B. 303. the case in Btirl - . Giiinpnr-h A licensing meeting of a County (1872) L. R. 4 P. C. 439, 404, Council is not a Court for this 42 L. J. P. C. 25, is quite neuti-al. purpose: Royal Arjtmrium Society They declined to presume that such V. Parkinson [1892] 1 Q. B. 431, an " absolute privilege " existed by 61 L. J. Q. B. 409, C. A. the law and customs of China as to (;•) Sawkins v. Lord Faulet official reports to the Chinese (1869) L. B. 5 Q. B. 94, 39 L. J. Government. Q. B. 53, see the dissenting judg- (s) Chatter ton v. Secretary of ment of Cockbum O. J., and the State i) Dernj v. Peek (1889> 14 M. & W. 401, 12 L. J. Ex. 363, .A.pp. Ca. 337, 58 L. J. Oh. 864. 63 B.' E. 635, but the actual dcci- (c) Peek v. Berry (1887) 37 Ch. sion is not consistent with the doc- Div. 341, 57 L. J. Ch. 347. trine of the modern cases on the {d) I^ord Ilerschell, 14 App. Ca. duties gt directors of companivja. at p. 375. See per Lord Herschell, 14 App- («) Ace. Glasier \. Rolls (1889) Ca. at p. 375. 42 Ch. Div. 436, 58 L. J. Oh. 820; (s) Western Bunk of Scotland v. Loiv v. Bouverie [1891] 3 Ch. 82, Addie (1867) L. E. 1 Sc. at p. 162. 60 L. J. Ch. 594, C. A. («) lb. at p. 168. P.— T. 19 290 WRONGS OF F1{AUD, BAD FAITH, AM) OPPKKSSION. however grossly negligent it may be, and liowc\'cr mischie- vous in its results (/). 1 gave reasons elsewhere at the time {g) for thinking 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 is supported by a considerable proportion of American judicial opinion, though there are also many decisions to the contrary. Some years after the decision of Derry v. Peek, the Supreme Court of the United States said that " a person who makes representations of material facts, assuming or intending to convey the impression that he has adequate knowledge of the existence of such facts, when he is conscious that he has no such knowledge," is answerable as if he actually knew them to be false — which is admitted everywhcve — and then went on to say that a vendor or lessor may be held guilty of deceit by reason of material untrue representations " in respect of his own busi- ness or property, the truth of which representations the vendor or lessor is bound and must be presumed to know '" (h). This latter step appears to be precisely that which in this country the Court of Appeal was prepared, but the House of Lords refused, to take. In England, on the contrary, " negligence, however great, does not of itself constitute fraud " (i), nor, it seems, even ('/)' Zc LieiTo V. Gniil/l [1893] Street, Foundations of Legal 1 Q. B.. 491, 62 L. J. Q. B. 353, Liability, i. 400, 407; Williston, C. A. (untrue certificate negli- "Liability for Honest iMisrepro- gently given by a builder who owed sentation," Harv. Law Eev. xxiv. no speoiai duty to tli'e plaintiff). 415. Prof. Williston shows how (j7) L. Q. R. \. 410; for a dif- difficult it is to harmonize the rule ferent view see Sir William Anson, in Dernj y. Pee7c with the settled ib. VI. 72. doctrine of estoppel and warranty. '(^) Lehigh Zinc and Iron Co. (i) [1893] 1 Q. B. at p. 498, per V. Sam ford (1893) 150 U. S. 665, Lord Eshe;'. 673. For other references sea WHAT IS DKCEIT. 291 cast upon the defendant the hurden of proving actual belief in the truth of the matter stated {i). Even the grossest carelessness, in the absence of contract, will not make a man liable for a false statement without a specific finding of fact that he knew the statement to be false or was reck- lessly ignorant whether it was true or false (&). Perhaps it would have been better on principle to hold the duty in these cases to be quasi ex oontraetu, and ovad'Q the 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; and it might also have been held to be an implied 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 sieemed sufficient to a man of ordinary understanding. This would not have been mono artificial than holding, as the Exchequer Chamber was once prepared to hold, that the highest bcnm 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 (l). Such a development would have been quite parallel to others which have taken place in the modern history of tha law. No one now regards an express 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(TO). But it seems now (0 [1893] 1 Q. B. at p. 498, per 1 E. & E. 309, 29 L. J. Q. li. 14, Lord Esher. 117 E. E. 227. (7c) See judgments of Lindley f)«) Villiamnon v. Allison and Bo-wen L. JJ. in A,iffus v. (1802J 2 Eajt 446, 451. There is CUford [1891] 2 Oh. 449. an example as late as 1841, •Brown Q) Warlow V: IIuiAson (1859)' v. i'ftV/iwgriion, 2 Man. & G. 279, 58 19(2) 292 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. too late, at all events in this country, to follow such a line of speculation (re). 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 " (o). I cannot see that the inquiry is more difficult or inconvenient than that which constantly takes place in questions of negligence, or that it is so difficult as those which are neC'Cssary in cases of mali- cious prosecution and abuse of privileged communications. Besides, we do not admit beliefs to be honest first and ask whether they were reasonable afterwards. If, having honestly made a representation, a man discovers that it is not true before the other party has acted upom it, what is his position? It seems on principle that, as the offer of a contract is deemed to continue till revocation or acceptance, here the representation must be taken to be con- tinuously made until it is acted upon, so that from the moment the party making it discovers that it is false and, R. R. 408. The explanation is Court of Massachusetts, Sash v. concisely given in a judgment of Jliniie^'otct Title Insurance and the Supreme Court of the U. S. Trust Co. (1895) 163 Mass. 574, by Holmes J., F. L. Grant Shoe 587. Wc need not remind the Co. V. Laird (1909) 212 U. S. 445, learned reader that the action of 449: "No doubt at common law assumpsit itself was originally an a false statement as to present facts action on the case for deceit in gave rise to an action of tort, if the breaking a promise to the pro- statement was made at the risk of misee's damage: J. B. Ames in the speaker, and led to harm. But Harvard Law Rev. ii. 1, 53 (repr. ordinarily the risk was not taken Essaj-s in Anglo-Am. Legal by the speaker unless the state- History, iii. 259). ment was fraudulent, and it was (n) Mr. Street (Foundations of precisely because it was a warranty, Legal Liability, i. 405) thinks it that 13, an absolute undertaking by may be possible to extend the contract that a fact was true, that doctrine of implied warranty in if a warranty was alleged it was America in the way suggested, not necc>3sary to lay the scienter:" (o) Sir W. Anson, L. Q. R. vi. cp. the same learned judge's re- 74. marks as a member of the Supreme WHAT IS DECKir. 293 having the mcaus 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 representa- tion, 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 misrepresenta- tion even though it was not so originally " (p). We do not know of any authority against this being the tru^ doctrine of common law as well as of equity, or as applicable to an action for deceit (g) as to the setting a,side of a contract or conveyance. Analogy seems in its favour (r). Since the Judicature Acts, however, it is sufficient for English pur- poses to accept the doctrine from equity. The same rule holds if the representation was tnue when first made, but ceases to be true by reason of some event within the know- ledge of the party making it and not within the knowledge of the party to whom it is made (s). (p) Reijnell v. Sprye (1852) 1 graver consequences in the criminal D. M. G. 660, per Lord Cranworth law. Jessel M. E. assnined tha at pp. 708, 709: cp. Jejsel M. R., common law rule to be in some way Redgrave v. Hurd (1881) 20 Ch. narrowcj- than that of equity (20 Div. 12, 13, 51 Li J. Ch. 113. Ch. Div. 13), but this was anextra- (?) The extra-judicial remarks judicial dictum ; and see per Bowen of Cotton and James L. JJ. in L. J., 34 Ch. Div. at p. 594, de- Arkivright v. Xeiobold (1881) 17 clining to accept it. Ch. Div. 301, 325, 329, are how- (s) Traill v. Baring (1864) 4 ever against this. D. J. S. 318, 146 R. R. 334; the (r) Compare the doctrine of ron- difficulty of making out how there tinuoui taking in trespass de bonis was any representation of fact in asporiatis, which is carried out to that case as distinguished from a 294 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. On 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 p;retenoe of having certain infor- mation which he has not is itself a deceit. " He takes upon himself to warrant his lown belief of the truth of that which he so asserts " {t). " If persons take upon themselves to make assertions as to which thej are ignorant whether thej 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 "- (m) . These dicta, one of an eminent common law judge, the other of an eminent chancellor, are now bath classical; their direct application was to the repudiation of contracts obtained by fraud or misrepresentatioin, but they state a principle which is weU .understood to include Liability in an action for deceit (x). The ignorance referred t,o is conscio;Us ignorance, the state of mind of a man who asserts his belief in a fact " when he is conscious that he knows not whether it be true or false, and when he has therefore no such belief" (y). With regard to transactions in .which a more or less stringent d|Uty of giving full and correct information (not merely of abstaining from falsehood or concealment eq,uiva- lent to falsehood) is imposed on one of the parties (z), it promise or condition of a contract allows Lord Cairns's dictum (14 is not material to the present App. Ca. at p. 351). purpose. (a;) Taylor v. Ashton (1843) 11 (<) Maule J., Evans V. Edmonds M. & W. 401, 12 L. J. Ex. 363, 63 (1853) 13 0. B. 777, 786, 22 L. J. R. R. 635; Edgington v. ■ Fits- C. P. 211, 93 R. R. 732, 739. maurice (1885) 29 Ch. Div. 459, («) Lord Cairns, Reese River 479, 481, 55 L. J. Ch. 650; cp. Silver Minincr Co. v. Smith (1869) Smith v. Clmdwich (1884) 9 App. L. R. 4 H. L.. 64, 79, 39 L. J. Ch. Ca. at p. 190, per Lord Selborne. 849. See per Sir J. Hanuen in (y) Lord Herschell, Dcmj v. Peek V. Derry, 37 Ch. Div. at PeeJe, 14 App. Ca. at p. 371. p. 581. Even Lord Bramwell (z) There is gome learned. liKCKr.ESS ASSERTION : KS TOPPEL. 295 may be do.ubted whether an obligation of this kind aamexed' 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 wilfiully or reck- lessly false, it comes within the general description of deceit. B'ut there are errors of mere inadvertence which constantly suffice to avoid contracts of these kinds, and in such cases 1 do not think an action for deceit (or the analogous suit in equity) is known to have been maintained. Since Dernj 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 actiooa 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 alter- native remedy, but on different gi-ounds, and subject to the special character and terms of the contract. There remains the special duty attached by courts of equity to fiduciary relations such as that of solicitor and client. Such duties are independent of the common law rules as to actions in tort, and are not affected by Derry v. Peek {a). In the absence of a positive duty to give correct infor- mation or full and correct answers to inquiry, and in the absence of fraud, there is still a limited class of cases in which a man may be held to make good his statement on the ground of estoppel. Until quite lately it was supposed to be a distinct rule of equity that a man who ha.s mis- represented, in a matter of business, facts whiuh were specially within his knowledge cannot be heard to say that at the time of making his statement he forgot those facts. opinion and some show of autho- 543; Turiiei- v. Green [1895] 2 Ch. rity for holding that this is the rule 2U.j, C4 L. J. Ch. 539. of equity as regards all contracts; (n) yoctoii v. Lord As/ibuilon I cannot, accept this view. Scs [1914] A. C. 932, 83 L. J. Ch. 784. 3 Encycl. Laws of Eng. 2nd ed. 296 WRONGS OF FRAUD, BAD FAITH, AND OPPRKSSION. B,ut since Derry v. Peek {b) this is not the rule of English courts. There is no general duty to use care, much or little, in making statements of fact on which other persons are likely to act (c). If there is no contract and no breach of specific duty, nothing short of fraud or estoppel will auffice. And we have to remember that estoppel does not give a cause of action but only supplies a kind of artificial evidence (d). One of the cases hitherto relied on for the supposed rule (e) can be supported on the ground of estoppel, but on that ground only; a later and apparently not less considered and authoritative one (/) may possibly be siupported by a rather extensive conception of implied warranty (g). In short the decision of the House of Lords in Derry V. Peeh, as received and applied by the Court of Appeal, is that even the grossest carelessness in stating material facts is not equivalent to fraud, and cannot be made so by varying the name of the cause of action; and the substance of the decision is not altered by the results turning out to be of wider scope, and to have more eft'ect on other doctrines supposed to be settled, than at the time was apprehended by a tribunal of whose acting members not one had any work- ing acquaintance with courts of equity. (b) 14 App. Ca. 337, 58 L. J. (d) Lov v. Bouverie [1891] 3 Ch.,864. Ch. 82, 60 L. J. Ch. 594, C. A., (c) Aligns v. Cliffoyd [1891 J 2 se3 per Bowen L. J. [1891] 3 Ch. Ch. 449, 60 L. J. Oh. 443, C. A., at p. 105. Le Lievro v. Gould [1893 | 1 Q. B. (e) Btn-roives v. Lock (1805) 10 491, 62 L. J. Q. B. 353, C. A. \es. 470, 8 R. R. 33, 856, sec Prof. Jeremiah Smith, of Harvard per Lindl«y L. J. [1891] 3 Ch. at University, thinks the Court of p. 101. Appeal raii^ht have distinguished (/) Slim v. Crouchei- (18G0) 1 this class of eases from Dernj v. D. F. J. 518, 125 R. E. 529; Low PeeJc {HaTv. Law Rev. xiv. 184). v. Bouverie, above, per Lindlcy His remarks deserve careful atten- L. J. [1891] 3 Ch. at p. 102. tion in those jurisdictions where (s. 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 advan- tage of his own fraud upon the Court which ordered the prosecution (d). The j)rosecution must have been for an offence of which a conviction would carry reprobation impairing the party''s fair fame. It is not enough that the proceedings were penal in form, as is the case under many adminisitrative statutes (e). 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 (c) Bowen L. J., Abrath v. for this purpose: Tf'irl-t v. Fen- y. E. li. Co. (1883) 11 Q. B. tham (1791) 4 T. E. 247, 2 R. R. Div. 440, 455, 52 L. J. Q. B. 623: 374. the decision of the Court of Appeal ((?) Fitzjohn v. Mackinder (Ex. was afBrmed in H. L. (1886) 11 Ch. 1861) 9 C. B. N. S. 505, 30 App. Ca. 247, 55 L. J. Q. B. 457. L. J. C. P. 257, 127 R. R. 746- A plaintiff who, being indicted on (diss. Blackburn and Wightman the prosecution complained of, has JJ.). been found not guilty on a defect (f) Jl'iffen v. Baileij [1915] 1 in the indictment (not now a pro- K. B. 600, 84 L. J. K. B. 688,. bable event) is sufficiently innocent C. A. 318 WRONGS OF FRAUD, IJAD FAITH,. AND OPPRESSION. and in the company's supposed interest, and it has been so held (/). Notwithstanding dicta to the contrary (^r), it seems now practically certain that the action lies (h). The reasons for the exceptional requirement of jDroof of actual bad faith in suits for malicious prosecution have been much discussed. It has been suggested by very high authority that the wrong is analogous to the abuse of privileged occasions in the law of defamation. " The person against whom proceedings have been initiated without reasonable and probable cause is prima facie wronged. It might well have been held that an action always lay for thus putting the law in motion. But I apprehend that the person taking proceedings was saved from liability if he acted in good faith, because it was thought that men might otherwise be too much deterred from enforc- ing the law, and that this would be disadvantageous to the public " {i). " In my opinion the somewhat anomalous action for mali- cious prosecution is based on the same principle " [as liability for defamation on a privileged occasion]. " From motives of public policy the law gives protection to persons prosecuting, even where there is no reasonable or probable cause for the prosecution. But if the person abuses his privilege for the indulgence of his personal spite he loses the protection, and (J) Edwards v. Midland It. Co. (Jt) Cornjora v. Carlton Bank 0880) 6 Q. B. D. 287, 50 L. J. [1900] 1 Q. B. 22, 68 L. J. Q. B. Q. B. 281, Fry J.; Cornford v. 1020, where an objection on this Carlton Bank [1899] 1 Q. B. 392, ground was abandoned by counsel 68 L J. Q. B. 19<5, Darling J. in C. A.; and see opinion of the {g) See the judgment in Ed. Judicial Committee, Citizens' Life wards V. Midland a. Co., ]a,st Boie; Assce. Co. v. Brown [1904] A. C. per Lord Bramwell, 11 App. Ca. 423, and p. 60, above, at p. 250, but this was extra-judi- (i) Per Lord Herschell, Allen cial, see per Lord Fitzgerald, j7). at v. Flood [1898] A. O. 1, 125, 67 p. 244, Lord Selborne at p. 256. L. J. Q. B. 119, 185. MALICIOUS PROSECUTION. 319 is liable to an action, not for the malice but for the wrong' done in subjecting another to the annoyance, expense, and possible loss of reputation of a causeless prosecution" (Jc). These suggestions, though they must carry great weight, and, it is submitted, are correct in principle, are not posi- tiveh' binding, and it has been objected by a learned writer that " there is no judicial authority which will justify the proposition that the institution of legal proceedings has ever been presumed to be an actionable wrong, however vexatious they may be" {I). It is certainly open to doubt whether the rational justification ojf the law propounded by Lord Herschell and Lord Davey had in fact occurred in a distinct form to any of their predecessors. Generally speaking, it is not an actionable wrong to institute civil proceedings without reasonable and probable cause, even if malice be proved. For in contemplation of law the defendant who is unreasonably sued is sufficiently indemnified by a judgment in his favour which gives him his costs against the plaintiff (to) . And special damage beyond the expense to which he has been put cannot well be so connected with the suit as a natural and probable consequence that the unrighteous plaintiff, on the ordinary principles of liability for indirect ooaisequences, will be answerable for them {n). " In the present day, and accord- (k) Per Lord Davey [1898] hardly ever a real indemnity. The A. C. at p. 172, 67 L. J. Q. B. true reason, is that litigation must at p. 209. end somewhere. If A., may sue B. (l) The late ilr. W. F. Craies in for bringing^ a vexatious action, 8 Encyl. Laws of Eng. (2nd ed.) then if A. fails to persuade the 517. I confess to some difficulty Court that B.'s original suit was in understanding exactly how much vexatious, B. may again sue A. for Mr. Craies intended to differ with bringing this latter action, and so Lord Herschell; and see contra ad infinitum. Street, Legal Liability, i. 327. (») See the full exposition in (;») It is common knowledge 'that the Court of Appeal in Quartz Hill the costs allowed in an action are Gold Mining Co. v. Eyre (1883) 320 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. ing to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reason- able and probable cause, will not support a subsequent action for malicious prosecution " (o). 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," (p), 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 itseif a blow struck at the credit of the person or company whose affairs are thus brought in question. Therefore such a pro- ceeding, if instituted without reasonable and probable cause and with malice, is an actionable wrong (g). Other similar exceptional cases were possible so long as there 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 11 Q. B. Div. 674, 52 L. J. Q. B. an action might be brought for 448, especially tlie judgment of malicious proceedings. As to issu- Bowen, L. J. ing execution for the full amount (o) Bowen L. J., 11 Q. B. Div. of u, judgment partly satisfied. Be at p. 690. The opinions of Ameri- Medina v. Grove (1847) 10 Q. B. can Courts are much divided. 172, 74 K. R. 243. Where a. judg- {p) 11 Q. B. Div. 691. ment is wholly satisfied, a writ of (q") Quartz Hill Gold Mining Co. execution purporting to be issued V. Eyre (1883) note («)■ The con- under it is void, and execution is a trary opinions expressed in John- trespass irrespective of the plain- sore V. Emerson (1871) L. E. 6 Ex. tiff's knowledge or motives, though 329, 40 L. J. Ex. 201, with refer- without malice it is not a cause of ence to proceedings under the action in case, which explains the Bankruptcy Act of 1869, are dis- old authorities: Clissold v. Cratch- approved: under the old bank- ley [1910] 2 K. B. 244, 79 L. J. ruptcy law it was well settled that K. B. 63-5, C. A. MALICIOUS ABUSE OF PltOCESS. 321 accepted for a much longer time (r). In common law juris- dictions where a suit can be commenced by ari'est of the defendant or attachment of his property, the old authorities and distinctions may still be material (s). The principles are the same as in actions for malicious prosecution, mid^itis mutandis : thus an action for maliciously procuring the plaintiff to be adjudicated a bankrupt will not lie unless and until the adjudication has been set aside (t). It seems that an action will lie for bringing and prose- cuting an action in the name of a third person maliciously (which must mean from ill-will to the defendant in the action, and without an honest belief that the proceedings are or will be authorized by the nominal plaintiff), and without reasonable and probable cause, whereby the party against whom that action is brought sustains damage; but certainly such an action does not lie without actual damage (u). The explanation of malice as " improper and indirect motive " appears to have been introduced by the judges of the King's Bench in the early Victorian time. But "motive" is perhaps not a much clearer term. "A wish to injure the party rather than to vindicate the law " would be more intelligible (a;). ()•) Savile or Savill >. Roberts Q. B. 449. (1698) 1 Ld. Raym. 374, 379; 12 («) Cotterell >. Jones^ (1851) 11 Mod. 208, 210, and also in 5 Mod., C. B. 713, 21 L. J. C. P. 2, 87 Salkeld, and Carthew. R- R- 754. Why is it not o. form (s) As to British India, see Raj of maintenance? Chunder Roy v. Shama Soondari {x) Stephen (Sir Herbert) on Debi 1. L. R. 4 Cal. 583. Malicious Prosecution, 36 — 39, see (0 Metropolitau Bank v. Pooley espeoially at p. 37. (1835) 10 App. Ca. 210. 54 L. .T. 21 322 WEONUS OF FRAUD, BAU FAITH, AND OPPRESSION. IV. — Conspiracy ; Promrement of Wrongs. The modern action for malicious prosecution has taken the place of the old writ of conspiracy and the action on the case grounded thereon (y), out of which it seems to have developed. It was long doubtful whether conspiracy is known to the law as a substantive wrong, or in other words whether two or more persons can ever be joint wrong- doers, and liable to an action as such, by doing in execution of a previous agreement something it would not have been unlawful for them to do without such agreement. There is now a distinct decision in the negative (z), open indeed to discussion in the Court of Appeal. But it was already settled for practical purposes that the conspiracy or " con- federation " is only matter of inducement or evidence (a). " As a rule it is the damage wrongfuUy done, and not the conspiracy, that is the gist of actions on the case for con- spiracy " (b). " 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 " (c). Either the wrongful acts by which the plaintiff has suffered were such as one person could not commit ((/) F. N. B. 114 D. sqg. L. J. Q. B. 295. (s) Euttley v. Simmons [1898] (6) Bowen L. J. in S. C. in 1 Q. B. 181, 67 L. J. Q. B. 213, C. A. (1889) 23 Q. B. Div. at following Kearney v. Lloyd (1890) p. 616. Cp. Maule J.'s inter- 26 L. R. Ir. 268. But it has been looutory question in Cotterell v. observed by very high authority Jones, note («) above, 11 C. B. at that "It is difficult to draw any p. 723, 87 R. R. at p. 762: "Is satisfactory conclusion from this there an instance of an action •case, as the most material facts are against two or more for a con- jiot stated'": Lord Lindley in spiraoy to do, and doing, a thin" Quinn v. Leathern [1901] A. C. which would not be actionable if 495, 540. done by one? " (a) Mogul Steamship Company (c) Txird Field [1892] A. C. at -V. McGregor [1892] A. C. 25, 61 p. 52. CONSPIRACY, ETC. 323 alone (d), say a riot, or wrongful intention, if material, was proved, and damages aggravated, by showing that they were done in execution of a concerted design. In the singular case of Gregory v. Duke of Brunswick (e) the action was in effect for hissing the plaintiff off the stage of a theatre in pursuance of a malicious conspiracy between the de- fendants. The Court were of opinion that in point of law the conspiracy could be material only as evidence of malice (/) but that in point of fact there was no other such evidence, and therefore the jury were rightly directed that 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 (<£) "There are some forma of injury which can only be effected by the combination of many fpersonsl: " Lord Hannen [1892] A. 0. at p. 60. («) Man. & Gr. 205, 953, 6-t K. K. 759, 897 (1S44). The de^en- ■danta justiSed in a plea which has the merit of being amusing. Being a plea in justification, it admitted a cause of action; it was held bad because ifc avoided part only, and neither confessed nor avoided the rest. Therefore the question ■whether conspiracy is of itself a civil cause of action was not raised for decision. (/) Since Allen v. Flood [1898] A. C. 1, 67 L. J. Q. B. 119, the supposition of malice being the gist flt the action cannot be accepted. If hissing an aotor off the stage ia jiot actionable of itself the addition 21 of malice will not make it so. This point is not affected by Quinn , V. Leathew [1901] A. C. 495, 70 L. J. P. C. 76. It will be observed that the conspiracy charged by the declaration included the purpose of making a riot, which would be a criminal offence. This ia pointed out by the late Mr. A. Cohen, K.C., with the concurrence of Lprd Dunedin, the late Sir Godfrey Lushington, and Mr. Sidney Webb, in a very able memorandum an- nexed to the report of the Trade Disputes Commission, 1906. Cp. L. Q. R. xxii. 117. I am happy to find my view both of Gregory v. ViiJte oj Brunswick and of the general question confirmed by this weighty opiniou aa well as by the dictum of Fitzgibbon L. J. [1906] 1 I. R at p. 109. (2) 324 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. the act of hissing in a public theatre is, pri/md facie, a lawful act; and even if it should be conceded that such ajti 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 malioe could be made out against one of the defendants, as, apart from any combination between the two, would warrant the expectation of a verdict against the one alone, was for the consideration of the plaintiff's counsel; and, when he thought proper to rest his case wholly on proof of conspiracy, we think the judge was well warranted in treating the case as one in which, unless the conspiracy were established, there was no ground for saying that the plaintiff was entitled to a verdict; and it would have been unfair towards the de- fendants to submit it to the jury as a case against one of the defendants to the exclusion of the other, when the attention of their counsel had never been called to that view of the case, nor had any opportunity [beenPj 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" (g). Soon after this case was dealt with by the Court of Common Pleas in England, the Supreme Court of New York laid it down (not without examination of the earlier authorities) that conspiracy is not in itself a cause of action; and there must be not only damage in fact, but legal damage which would give a ground of action against a defendant sued alone (h). (ff') Per Coltman J., 6 Man. & fendants: 1 Car. & Kir. 24, 70 fir. at p. 959, 64 R. R. at p. 901. R. E. 767. mtimately the cause went to trial ^^h) Hutchins v. Eutchins (Sup. and there was a verdict for the de- Ct. N. Y., 1845) 7 Hill, 104, CONSPIKACY, ETC. 325 In 1889 the question was raised in a curious and important case in this country. The material facts may perhaps be fairly summarized, for the present purpose, as follows: A., B. and C. were the only persons engaged in a certain foreign trade, and desired to keep the trade in their own hands. Q. threatened, and in fact commenced, to compete with them. A., B. and C. thereupon agreed to offer specially favourable terms to all customers who would agree to deal with them- selves 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 Court of Appeal, and unani- mously 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 («) . It is suggested, however, that an agreement of this kind might in some oases be held to amount to an indictable conspiracy on the ground of obvious and excessive public inconvenience (fc) . It seems doubtful whether effect could Bigelow I,. C. 207, Wigmore i. pared to hold that whenever A. 26o (action for conspiring to in- and B. make an agreement which, dace a testator by fraudulent mis- as between themselves, is void as representations to revoke a devise in restraint of trade, and C. suffers to the plaintiff). See itr. Bige- damage as a proximate oonse- low's note thereon. To the same quenoe, A. and B. are wrongdo(!rs eiiect is Kenrnei/ v. Z/oyd (1890) as against C. This is clearly nega- 26 L. R. Ir. 268. tived by the decision of the House (»■) Moriul Steamship Cnrnpany of Lords, see the opinions of Lord V. McGregor (1889) 23 Q. B. Div. Halsbury L. C, Lord Watson, 598 58 L. J. Q. B. 465 (^diss. Lord Ixird Bramwell, and Lord Hannen. Esh'e.-, 31. R.); in H. L. [1892] (Jc) Bowen L. J., 23 Q. B. Div. A. 0. 25, 61 L. J. Q. B. 295. at p. 618. Lord Esher was apparently pro- 32« WliONGS OF FKAUD, BAD FAITH, ANP OPPRESSION. be given to this suggestion consistently with the modern authorities. It would seem to follow that it cannot be an actionable conspiracy for two or more persons, by lawful means, to induce another or others to do what they are by law free to do or to abstain from doing what they are not bound by law to do; and this opinion has been distinctly expressed in the Court of Appeal in Ireland (l). The House of Lords has decided that persuading or inducing a man, without unlawful means, to do something he has a right to do, though to the prejudice of a third person, gives that person no right of action, whatever the persuader's motives may have been (m) . On the other hand, there are miany things which cannot, in the ordinary course of affairs, produce any measurable damage if done by one person alone, and therefore, when so done, will not support any action in which actual damage has to be proved. "But num'bers," as Lord Lindley says {n), " may annoy and coerce where one may not. Annoyance and coercion by many may be so intolerable as to become actionable, and produce a result which one alone could not produce; " and this is consistent with the rule that " inten- tional damage which arises from the mere exercise of the rights of many is not .... actionable by our law as now settled." Not that there is ,any saving virtue in individual (I) FitzGibhoa L. 3., Sweeney V. of title); Vegelahn v. Guntner Coote [1906] 1 I. R. 51, 109. (1896) 167 Mass. 92, where the (m) Allen v. Flood [1898] A. C. diasenting- judgment of Holmes J. 1, 67 L. J. Q. B. 119; op. Mce v. (now of the Supreme Court, U. S.) Albee (1895) 164 Mase. 88 (hold- deserves much consideration. "The ing that words spoken by A. to B., doctrine generally has been ac- in order to induce B. to do some- oepted that free competition is thing to Z.'s prejudice which B. worth more to society than it has a right to do, can give a right costs ": p. 106. of action to Z. against A. only so (?«) Qiiinn v. Leathern [1901] far as they may amount to defama- A. C. 495, 538, 539. tion, or, it is presumed, slander, CONSPIRACY, ETC, 327 action, but that " a number of actions and things not in tliemselves actionable or unlawful if done separately without conspiracj- may, with conspiracy, become dangerous and alarming " (o). If it is meant that any such acts are positively lawful when done b}- one person alone, and not merely insignificant, it is submitted that no authority can be produced for this; and the opinion of Romer L. J. against it (p) has now been followed in" a considered judgment by jMcCardie J. {q). If it is meant that many unlawful and actionable things, nuisance for example, are made up of elemeutg not separately wrongful, it is undoubtedly true. Nay more, the wrongful character of a trespass to land is determined by nothing in the act or intention itself, but by, the external circumstance that the land does not belong to the trespasser. Accordingly " a single person, or a body of persons, will commit an actionable wrong if he or they inflict actual pecuniary damage upon another by the inten- tional employment of unlawful means to injure tliat person's business, even though the unlawful means may not com- prise any specifio act which is per se actionable"; and on this principle a professional association was held liable to practitioners whom it had attempted, for infraction of its rules, to drive out of the profession by forbidding its mem- bers to recognize them. The rules in question were alsa held bad for restraint of trade., but this does not seem essen- tial to the decision (r). If the criterion, however, were the mere presence or absence of concerted action, it would be difficult to say why there is not an actionable wrong if a, (o) Lord Brampton ib. at sooiation [1919] 1 K. B. 244. p. 530; cp. per Lord Macnaghten "Conspiracy is not the gist of the at p. 510. matter," p. 255. (p) Giblan v. National La- {r) Pratt v. British Medical As- bourers' Union [1903] 2 K. B. 600, sooiation [1919] 1 K. B. 244, 260, 619, 72 L. J. K. B. 907. 88 L. J. K. B. 628, where the (5) Pratt V. British Medical As- authorities are carefully reviewed. ^28 WRONGS OF FKAUD, BAD FAITH, AND OPPRESSION. number of customers, for the avowed j^urpose of putting pressure on a trader, combine not to buy from him unless he satisfies them in some maimer unconnected with the merits of liis goods; but Lord Lindley agrees with the Courts of Scotland that, if that is all, the customers are within their rights (s). Nor does the withdrawal ■ of voluntary subscrip- tions which furnish a man's means of livelihood become wrongful because it is done in concert, and for the express purpose of making his office untenable (t). What is the supposed intermediate region, in which one man may do with impunity what two or three may not? It must be rather small. A joint or composite wrong may involve a conspiracy; but, as we have just pointed out, it need not. The present writer confesses to great difficulty in under- standing why, in Quinn v. Leathern, before the House of LordSj where the dicta now under consideration occur, it was necessary to say so much about conspiracy; for the cause of action was, in effect, ruining the plaintiff's business by coercing his customers not to deal with him, which is well within a line of old authorities (;(.); and on general principle, as Lord Halsbury said, " if upon these facts so found the plaintiff could have no remedy against those who had thus injured him, it could hardly be said that our juris- prudence was tliat of a civilized community " (x). The fact (s) [1901] A. C. at p. 539; («) Garrei v. Taylor, Cro. .fae. Scottish Co-op. Society v. Glasgow 567; see note on p. 235, above. Flashers' Association (1898) 35 So. and compare the observations of I.. It. 645. McCardie J. referred to in note (?), (() Kearney v. Lloyd, note (h), above. The same judgment rightly p. 325, above. That decision was treats malice as irrelevant to the admitted to be correct in Sweeney cause of action. The absence of V. Coote [1906] 1 1. R. 5!, the direct threats of violence is Court of Appeal being- divided only material only on the question of on the facts of the case bcfoi-e common-law pleading as between them. tiespass and case. Cx) [1901] A. C. at p. 506. CONSPIRACY AS TEST 01' LIAIULITY V 329 is that proof of intimidation and unlawful practices is often ■difficult, and a good many plaintiffs would like to be relieved of the burden. And perhaps the same reason may to some extent account for the perplexing talk about ■ malice which runs through all these cases. It is much easier to persuade a jury to find that there has been a " malicious conspiracy " than to prove what really happened, and persuade the Court that it amounts to a good cause of action. Allen v. Flood shows that a finding of malioe will not supply the want of a cause of action; Qiiinn v. Leathern does not, it is submitted, show that a finding of conspiracy will. How some of the •dicta in the last-named case are to be reconciled with the reasoning of the Mogul Steamship Co.'s Case (y) the House ■of Lords itself may have to tell us some day (z) . It is submitted that the discussion would be materially simplified if it were understood that all damage wilfully done to one's neighbour is actionable unless it can be justified or excused. Conspiracy would then appear as matter of aggravation, or as enabling persons acting together to inflict damage which merely individual action could not have inflicted; and instead of asking whether malice was part of a cause of action, we should ask in what cases good inten- tions, or reasonable and probable cause, are a justification or a step towards justification. Some learned persons think the suggested principle dangerously wide; but the Common Law has already succeeded in defining many grounds of justification and excuse, and is surely competent to define others as new facts bring them into prominence. 1 am by no means satisfied, however, that the recognized exceptions (y) P. 325, above. Zealand (Salmond on Torts, 4fch ed. (2) I am happy to observe that 1916) are in substantial agreement my learned friends Mr. M. M. with me so far. The same opinion Bigelow (The Law of Torts, 2nd appears to be generally held in £Eng.] ed., Cambridge, 1903) and America. Prof. Bui'dick, Law of the Solicitor-General for New Torts, 287, inclines to the contrary. 330 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. of trade competition and the right to deal with whom one likes will not go most of the way. There is a class of cases we still have to consider — that of procuring a breach of contract or other legal right to the injury of a party entitled to the benefit of it — where the exceptions are not yet ade- quately defined; but we shall get no better definition of them by refusing to consider the right of action as a species coming under a more comprehensive class. There is a tendency in judicial dicta on these questions to qualify general statements by the use of such words as " wrongfully " or " unlawfully," which no doubt make the statements unimpeachable in terms, but prevent them from being very instructive. We do not need the House of Lords to tell us that whoever unlawfully interferes with his neigh- bour commits an unlawful act; we desire to have it made clear what kind of conduct is unlawful and what is not. The Trade Disputes Act, 1906, s. 1 (a), has added the following paragraph after sect. 3 of the Conspiracy and Protection of Property Act, 1875: — "An act done in pur- suance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable." (ff) 6 Ed. 7, u. 47, " Trade dis- in Appendix. The dispute mus* pute " means any dispute between be between employers and work- employers and workmen, or be- men or between workmen and tween workmen and workmen, workmen, and must have to do with which is connected with the em- terms Oi employment or conditions ployment or non-employment, or of labour: Valentine v. Hyde the terms of the employment, or [1919] 2 Ch. 129, 88 L. J. Oh. with the conditions of labour, of 326, but on some of the reasoning any person. " Workmen " means there see Peterson J.'s criticism all persons employed in trade or in Hodges v. Webb [1920] 2 Ch- industry, whether or not in the 70. The mere fact of trade union employment of the employer with officials taking part will not make whom a trade dispute arises: it a trade dispute: LarJcin v. Long sect. 5 (3). See the whole Act [1915] A. C. 814, 8i L. J.P. C. 201. PKOCUBING BREACH OF CONTRACT. 331 This enactment resolves the doubt as to aU cases within its terms. If the view maintained above be correct, it is only a partial affirmance of the common law. Some special cases of interference with others' rights are on a settled footing. An action lies for procuring a person under contract with the plaintiff to break his contract (&). The earlier decisions were n,ot unanimous, and there was great doubt as to the reasons on which they were founded and the extent of their application, though they were authorita- tive here and generally accepted in the United States (c). Then observations of very great weight in the House of Lords discredited the opinion, which had been current, that the gist of the action was malice in, the sense of personal ill-will, or intent to injure the plaintiff rather than benefit the defendant or the other contracting party; and for a time it even seemed doubtful whether the decisions would finally be supported {d). But now it is laid down by the same authority that the cause of action exists, and that only some of the reasons formerly given for it were miscon- ceived. " I think," says Lord Macnaghten, " the decision " (in Lumley v. Gye) " was right, not on the ground of malicious intention, . . . but on the ground that a viola- tion of a legal right committed knowingly (e) is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognized by luw if there be no sufficient justification for the interference." Lord Lindley (6) Lumley v. Gye (1853) 2 E. (o) Angle v. Chicago, St. Paul, & K 216, 22 L. J. Q. B. 463, 95 i-c. Ry. (1883) 161 U. S. 1, 13. R. E. 501; Bowen v. Hall (1881) 6 {d) Allen v. Flood [1898] A. C. Q. B. Div. 333, 50 L. J. Q. B. 1, per Lord Watson at p. 107, 305; Glamorgan Coal Co. v. South Lord Herschell at pp. 121 sqq., Wales Miners' Federation [1903]' Lord Macnaghten at pp. 153, 154, 2 K. B. 545, 72 L. J. K. B. 893, per Lord Davey at p. 171. O. A., in H. L. [1905J A. C. 239, (e) Stott v. Gamble [1916] 2 74 L. J. K. B. 625. K. B. 504, 85 L. J. K. B. 1750. <}32 WRONGS OF FRAUD, BAD FAITH, AND OPPRKSSION. adds: " The principle involved . . . cannot be confined to inducements to break contracts of service, nor indeed to in- ducements to break any contracts. The principle which underlies the decision reaches aU wrongful acts done inten- tionally to damage a particular individual and actually ■damaging him " (/). Accordingly no iinding of "malice," in the sense of personal iU-will or any other evil motive besides the inten- tion of doing an act which violates the plaintiff's known right, is necessary to complete the cause of action, nor is it ■desirable to use the word at all in such cases {g). Still less can the use of illegal means be justified by any amount of good intentions ih). But it seems that there must be some exceptions in the nature of privilege for disinterested advice honestly given ■on a proper occasion. It cannot be reasonably maintained, for example, that a parent or guardian may not advise his ■daughter or ward to break of! an improvident engagement to an unworthy suitor (j). In America it has long been an accepted view that the rule " does not apply to inter- ference by way of friendly advice honestly given, nor is it in denial of the right of free expression of opinion " (fc). (/) Quinn V. Leathern [1901] Federation v. Glamorgan Coal Co. A. C. at pp. 510, 535. A later [1905] A. O. 239, 250, 255. attempt to exclude negative un- (A) [1902] 2 K. B. at p. 739, dei'takings from the scope of " con- per, Collins, M. R. Some expres- tractual relations " was overruled sions to'wards the end of this judg- by the Court of Appeal in National ment can, with great respect, PlwnograpJi Co. v. Edison^Bell hardly be reconciled with those ConHoUl. Phonograph Co. [1908] 1 already cited in the text from Ch. 335, see especially per Kon- Quinn v. Leathern. nedy L. J. at p. 366; 77 L. J. (j) Per Stirling L. J. [1903] 2 Ch. 218. K. B. 577; and see various cases (j) Mead v. Friendly Soc. of put in Coleridge J.'s dissenting Operative Stonenmwns [1902] 2 judgment iu Lumley v. 6ye. K. B. 732, 71 L. J. K. B. 994, (h) Walker v. Cronin (1871) 107 C. A.; South Wales Miners' Mass. 555. 566. PROCURING BREACH OF CONTRACT. 'dH'-i Here the same view has lately been taken in a decision with which the Court of Appeal and the House of Lords disagreed, not because they thought the law was otherwise, but because on the facts before them they thought the advice given was not disinterested, and was founded on a misconcep- tion of the rights involved (l). What is said on the subject in the House of Lords is very guarded, and amounts to little more than that every justification alleged on grounds of this kind must be dealt with on its particular merits (to). On the other hand it is positively decided that a desire, which may be in itself laudable, to compel a man to fulfil his duties in some other matter is not a justification for inducing other people to break their contracts with him; thus, in the particular case, it is not a legitimate method of collecting a member's debts to his trade union; and if such things were done by the authority of the union, it might, before the Trade Disputes Act of 1906, be liable in damages in its quasi-corporate capacity (n). On the whole, we still have to say that the exceptions to this kind of liability are imperfectly defined, and that the disposition of our Courts is to be very cautious in admitting them. Another point of difficulty in these «ases, once thought formidable, is 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 proximate cause of Z.'s damage, in one sense, is not the conduct of A. but the voluntary act or default of B. There was a time when Lord Ellenborough (I) Glamorgan Coal Co. v. South («) Giblan v. National La- Wales Miners' Federation [1903] bowers' Union [1903] 2 K. B. 600, 1 K. B. 118, 2 K. B. 545, 72 72 L. J. K. B. 907, 0. A. Nor I.. J. K. B. 893 [1905] A. C. 239, can such acts be justafled by 74 li. J. K. B. 526. way of reprisals for breach of (m) [1905] A. C. at p. 249, p€T some other contract: Smithies v. Lord JameSj at p. 254, per Lord National Assocn. of Operative Lindley. Plasterers [1909] 1 K. B. 310, 337, 341, 78 L. J. K. B. 259, 0. A. 334 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. laid it down as a general rule of law that a man is answer- able only for " legal and natural consequence," not for " an illegal consequence," that is, a wrongful act of a third person (o). But this opinion is now disapproved {p). The tendency of our later authorities is to measure respon- sibility for the consequences of an act by that which appeared or should have appeared to the actor as natural and probable, and not to lay down fixed rules which may run counter to the obvious facts. Here the consequence is not only natural and probable — if A.'s action has any consequence at all — but is designed by A.: it would, therefore, be contrary to the facts to hold that the interposition of B.'s voluntary agency neces- sarily breaks the chain of proximate cause and probable consequence. A proximate cause need not be an immediate cause. It does not lie in a man's mouth to say that the consequence which he deliberately planned and procured is too remote for the law to treat as a consequence (q). The iniquity of such a defence is obvious in the grosser examples of the criminal law. Commanding, procuring, or inciting to a murder cannot have any " legal consequence," the act of compliance or obedience being a crime; but no one has suggested on this ground any doubt that the procurement is also a crime. A further question, not yet fully disposed of, is how far it may be an actionable wrong to persuade or induce a third person to do something to the damage of the plaintiff, that thing being such that there is no legal remedy against the third person for doing it; for example, where A. persuades (o) Vicars v. Wilcockr, (1807) 8 (?) " The intention to injure the East 1, 9 R. R. 361, and in 2 plaintiff negatives all excuses and Sm L. C. disposes of any question of remote- (p) ^ec Lynch v. Knight (1861) ness of damage": Lord Lindley 9 H. L. C. 577; Clark v. Chambers [1901] A. C. at p. 537. This does (1878) 3 Q. B. D. 327, pp. 47—49, not touch the defence of exercise above, and notes to Vicars v. of common right. Wilcocks in 2 Sm. L. C. PROCURING INJURIOUS ACTS. .'^35 M., who has not made any contract with Z. not to employ Z., or persuades Z. not to work for M. Fifty years ago almost every English lawyer would have said without hesitation that no such action lies. About the end of the nineteenth century many 'English lawyers thought the House of Lords had so decided in Allen v. Flood (r). But that decision, it must now be understood, was based on the finding of fact that there was no threat, persuasion or inducement at all, but only a warning given by a person who had no control over the event. Obviously there is a real distinction between the threat: "Unless you dismiss A. and B., 1 shall call out the rest of the men," and the warning: " If you do not dismiss A. and B., the rest of the men will leave work." Whether in a particular case there is a threat or a warning is a question of fact (s). " A person who, by virtue of his position or influence, has power to carry out his design " may be liable for preventing a man, by influence with pos- sible employers, from obtaining employment (t). In Massa- chusetts it has been held that, where an employer had con- tracted with a trade union to discharge any workman of whom the union disapproved, and the union required him to discharge the plaintiff, a non-union workman, and he did so, the demand of the union was an actionable wrong against the workman, and the contract, being in effect for an un- lawful monopoly, was no justification (w). The question may some'times be put in this form: whether, as a matter of fact, the persuasion is of such weight that the resulting act ((•) [1898] A. C. 1, 67 L. J. tention to do in that event": Q. B. 119. Holmes J. 167 Mass, at p. 107. (s) Pratt V. British Medical As- (t) Komer L. J. in Gihlan v. sociation [1919] 1 K. B. 244, 261, National Labourers' Union [1903] 88 L. J. K. B. 628. "What you 2 K. B. 600, 620, 72 L. J. K. B. may do in a certain event you 907, C. A. may [as a rule] threaten to do, («) Berry v. Donovan (1905) that is, give warning of your in- 188 Mass. 353. 336 WRONGS OF FBAUJ), BAD FAITH, AND OPPRESSION. is in substance the act of the persuader (x). But perhaps it is not safe to formulate even so much as this; though it is notorious that what is on the face of it mere persuasion may really have extra-legal sanctions behind it which convert it into a command irresistible to a man of ordinary firmness and prudence; and if so, how does it differ from intimidation? For those who like it, indeed, there may still be the resource of saying that persuasion of this kind is actionable only when two or more persons combine in exercising it. But it has already been submitted that this doctrine of con- spiracy gives rise to more and worse difficulties than it re- moves. In any case, these questions involve subtle considera- tions of a psychological kind which our ancestors thoug-ht beyond the competence of courts or at aU events of juries,. and did not attempt to bring within the sphere of litigation; and in dealing with such considerations a wide field is left open to divergent views of economic and social policy. It seems that if Z., by wilfully deceiving Q., induces him to- do an act injurious to A., this may give A. a cause of action against Z., at any rate if Q. would have committed a breach of some duty towards A. by doing the same act with know- ledge of the real facts {y). (») Mr. Street, Foundations of Alveretone C. J. Buckley "L. J. Legal Liability, i. 353, 354, at- thought the facts amounted to pro- taches much importance to this curing a breach of contract. The- teat. Some judicial dicta suggest agreements were between manufac- that there can be no liability in turers and wholesale and retail any case for persuading or even dealers in a common and increasing ordering a man, in a regular form; it may therefore be noted,, course, to do something within his though not strictly relevant here, lawful discretion: I cannot accept that an objection on the ground this as a universal proposition. of restraint of trade was men- (v) National Phonograph Co. v. tioned in the Court below but not Edison-Bdl Co. [1908] 1 Ch. 335, seriously argued, see [1908] 1 Ch. 77 L. J. Ch. 218, judgments of at pp. 347, 356. Kennedy L. J., and {semble) Lord PROCURING INJURIOUS ACTS. 337 Possibly it may turn out to be the law that, generally; speaking, persuasion and advice are free and of common right; but that, when persuasion is acted upon to the damage of a third person, such damage being intended by the per- suader or a natural and probable consequence of the act, the persuader is liable to an action at the suit of the person damaged if he has either used unlawful means, such as in- timidation (whether open or disguised as persuasion), deceit, or corruption, or procured a criminally punishable or frau- dulent act; and that he is also liable, but subject to exceptions in the nature of privilege, if the act procured was a breach of contract or a merely civil ■wTong not in- volving breach of the peace or fraud. This would give, it is submitted, an intelligible and fairly acceptable rule {yy). No one, however, is more oonscious than the \\i-iter that in the present state of the authorities all conjectures on this subject must be advanced with the greatest diffidence. Generally speaking, ever}- wilful interference with the exercise of a franchise is actionable without regard to the defendant's act being done in^good faith, by reason of a mistaken notion of duty or claim of right, or being con- sciously wrongful. " If a man hath a franchise and is hindered in the enjoj'ment thereof, an action doth lie, which is an action upon the case " (0). But persons may as public officers be in a quasi -judicial position in which they will not be liable for an honest though mistaken exercise of (yy) Davies v. 7'homas [1920] the infringement of an incorpo- 1 Ch. 217, 231; Hodges v. Web?/ real right of that kind. The right [1920] 2 Ch. 70, seem to point in to petition Parliament is not a this direction. franchise in the sense that any (z) Holt C. J. in Ashbt/ v. elector can compel his represon- White at p. 13 of the special re- tative in the Hou.'ve of Commons port iii-st printed in 1837. The to present a particular petition: action was on the ease merely Chafers v. Goldsmid. [1894] 1 beoanse trespass would not lie for Q. B. 186, 63 L. J. Q. B. 59. P.- 22 338 WRONGS OF FKAUD, BAD FAITH, AND OPPKESSION. 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 (a). In such cases the wrong, if any, belongs to the class analogous to malicious prosecution. The wrong of maintenance, or aiding a party in litigation (whether successful or not) (&) without either interest in the suit, or lawful cause of kindred, affection, or charity for aiding him, is to some extent akin to malicious prosecution and other abuses of legal process; but the ground of it is not so much an independent 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 misdemeanor " (c). Hence it seems that a corporation can- not bo criminally liable for maintenance (c) ; but it may be answerable in damages for maintenance committed by its servants (d). Actions for maintenance are in modern times uncommon (e); the decision of the Court of Appeal that mere charity, with or without reasonable ground, is an excuse for maintaining the suit of a stranger (/), does not («) To::er v. Child (1857) Kx. L. J. K. B. 649, C. A. (indemnity Ch. 7 E. & B. 377, 26 L. J. Q. B. given in defence of one's own in- 151, 110 R. R. 633. terest is not maintenance). As to (i) Xevillc V. London Express wliat will amount to a common Newspaper [1919] A. C. 368, 88 interest in a suit so as to justify L. J. K. B. 282. Thus the e.xist- maintenance, Alabaster v. Harness ence of reasonable or probable (C. A.) [1895] 1 Q. B. 339, 64 cause is irrelevant. L- 'T. Q. B. 76. It must be a, (o) Lord Selborne in Metrop. legal interest: Oram v. Ilutt Bank v. Pooleij (1885) 10 App. Ca. [1914] 1 Ch. 98, 83 L. J. Oh. 161, 210, 218, 54 L. J. Q. B. 449. C. A. {d) Seville v. London lirpress (/) Harris \. Brisco (1886) 17 Newspaper, above. Q. B. Div. 504, 55 L. J. Q. B. (e) Bradlaiigh v. Newdegate 423. Not the less so because the (1883) 11 Q. B. D. 1, 52 L. J. charity is founded on agreement Q. B. 454; British Cash and Parcel in religion: Holden v. Thompson Coiiveijors v. Lamson Store Ser- [1907] 2 K. B. 489, 76 L. J. K. B. vice Co.' [1908] 1 K. B. 1006, 77 889. INTKRKEEliNCE WITH OCCUPATION. 339 tend to eueourage them; but they are not extinct. Special damage must be proved {g). It was thought for some time that hindering- a man in his occupation or livelihood was a special cause of action. A judgment of Holt C. J., delivered in 1705 (A), and fol- lowed (or rather, perhaps, incautiously extended) by the Court of King's Bench in 1809 {i), but on the whole neglected by text- writers and judges till the later years of the nineteenth century, was the supposed authority for this. Holt certainly said that " he that hinders another in his trade or livelihood is liable to an action for so hindering him," whether a franchise is interfered with or " a violent or mali- cious act is done to a man's occupation, profession, or way of getting a livelihood." But it seems the better opinion, as the result of recent discussion, that a special right not to be disturbed in one's business is not known to the \s;v, So far as any distinct unlawful means are used, damage caused by them is actionable whether it is damage affecting the plaintiff' in the way of his trade or not. So far as there {g) Neville's case, diss. Lord number of them when they came Haldane and Lord Atkinson. out; and if those were the facts I (A) Keeble v. HickeringiU, 11 do not see why it was not an East, 573 ».., 11 R. R. 273. actionable nuisance. Op. Ibbot- (i) Carrington ^. Taylor, 11 so« v. Peai (1865) 3 H. & C. 644, East, 571, 11 R. R. 270, see per 34 L. J. Ex. 118, 140 R. R. 655, Lord Watson and Lord Herschell the unanimous decision of a in Allen v. Flood [1898] A. C. at strong Court, where scaring away pp. 103, 135. There is nothing a neighbour's game with fireworks about those decisions in Quinn v. was held actionable, and not Leathern. It is not ea.sy to soe justifiable by way of retaliation what the jury in Carrington v. for the plaintiff having enticed Taylor really found the tacts to away the defendant's game by be. I suspect they meant to find laying down food on his own land, that the defendant, cruising off It seems assumed by every one^, the plaintiff's decoy, first fired at and was certainly understood by random to frighten the wild-fowl the reportera, that the cause of out of the decoy, and then shot a action wag nviisance. 22(2) 340 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. is damage without the use of specific unlawful means, it seems that the action, when it lies, is one of two things; on the wider view propounded above, an action for doing wilful harm to the plaintiff without justification or excuse, which in common law pleading would be a special action oa the case analogous to nuisance; or on the narrower view that there is no such general duty not to harm one's neighbour, but only a number of duties defined by different causes of action, an action for nuisance. A man's freedom to carry on his business is of common right, but not of a higher kind than any other common right. It is true, no doubt,^ that in oases where the plaintiff has to show actual damaige the kind of damage most capable of definite proof, and most likely to impress a jury, will generally be damage to his business; this, however, is not matter of law. A learned and careful discussion of the modern decisions down to 1902 by Air. A. V. Dicey K.C. (by whose general concurrence I am much fortified) will be found in L. Q. E,. xviii. 1 — 5; and it may be pointed out tliat the judgment of BowenL. J. in Mogul S.S. Co. v. McGregor, Gow'dCo. (j) has been lately cited with increasing frequency and respect, and should be carefully studied in this connexion. The application in England of the principles above discussed has now been limited by the enactments that " an act done by a person in contemplation or furtherance of a. trade dispute (k) shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade,, business, or employment of some other person, or with the ()) (1889) 23 Q. B. Div. 598, minent: Conway v. Wade [1909] 611. A. C. 506, 78 L. J. K. B. 1025> (Jc) It seems such a dispute And see note, p. 330, above, must be already existing or im- liNTERFERENCIC WITH OCCUPATION. 341 right of some othor person to dispose of his capital or his labour as he wills," aud that (in effect) the funds of a trade union -whether of masters or workmen cannot be reached by an action against the hodr or its representative members (Z). It does not appear that the former of these tAvo sections is intended to exclude the right of action against an individual in a case of open violence or intimidation; or, indeed, that it alters the law in more than one point (to.); the precise effect of the word " only " is no doubt open to differences of opinion. But it would not be safe to assume that the principles thus cut down may not be important here- after in some other branch of the law. Meanwhile they remain in fuU force in other common law jurisdictions, except so far as the very peculiar English leg-islation may find imitators. (l) ti Edw. 7, 0. 47, ss. 3, 4, see (>») The licensing of pi'ocuring p. 330, above. " Ti-ade dispute " breach of contract without the use is defined in s. 5 (3). of means othei"wise unlawful. ( 342 ) CHAPTEK IX. WRONGS TO POSSESSION AND PROPERTY. I. — Duties regarding Property generally. Every kind of intermeddling with anything which is the subject of property is a wrong unless it is either authorized by some person entitled to deal with the thing in that par- ticular way, or justified by authority of law, or (in some cases but by no means generally) excusable on the ground that it is done under a reasonable though mistaken suppo- sition of lawful title or authority. Broadly speaking, we touch the property of others at our peril, and honest mistake in acting for our own interest (a), or even an honest inten- tion to act for the benefit of the true owner (&), wiU avail us nothing if we transgress. A man may be entitled in divers ways to deal with pro- perty movable or immovable, and within a wider or narrower range. He may be an owner in possession, with indefinite rights of use and dominion, free to give or to sell, nay, to waste lands or destroy chattels if such be his pleasure. He may be a possessor with rights either determined as to length of time, or undertermined though determinable, and of an extent which may vary from being hardly distinguishable from full dominion to being strictly limited to a specific («) Ilollins \ . Fowler (1875) (1876) 1 Ex. D. 55, 45 L. J. Ex. L. R. 7 H. L. 757, 44 L. J. Q. B. 186: iti trover, Hiort v. Bott 169.- (1874) L. R. 9 Ex. 86. 43 L. J. (6) In trespass, KirJ; v. Gregory Ex. 81. AUTHORITY AND TITLE. 343 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 maj- 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 persons besides the owner or possessor, or concurrently with other persons, without himself being either owner or possessor. The definition of such rights belongs to that part of the law of property which deals with easements and profits. Again, he may be authorized by law, for the execution of justice or for purposes of public safety or convenience, or under exceptional conditions for the true o-wner's benefit, to interfere with property to which he has no title and does- not make any claim. "\^''e have seen somewhat of this in the chapter of " General Exceptions." Again, he may be justi- fied by a consent of the owner or possessor which does not give him any interest in the property, but merely excuses an act, or a series of acts, that otherwise would be wrongful. Such consent is known as a licence. Title to property, and authority to deal with property in specified ways, are commonly conferred by contract or in pursuance of some contract. Thus it oftentimes depends on the existence or on the true construction of a ooritraot whether a right of property exists, or what is the extent of rights admitted to exist. A man obtains goods by fraud and sells them to another purchaser who buys in good faith, reasonably supposing that he is dealing with the true OAvner. The fraudulent re-seller may have made a contract which the original seller could have set aside, as against him, on the ground of fraud. If so, he acquires property in the goods, though a defeasible property, and the ultimate purchaser iu good faith has a good title. But the circumstances of the fraud may have been such that there was no true consent 344 WKONGS TO POSSESSION AND PROPERTY. Oil the part of the first owner, no contract at all, a^nd no light of property whatever, not so much as lawful possession, acquired by the apparent purchaser. If so, the defrauder has not any lawful interest which he can transfer even to a person aicting in good faith and reasonably: and the ultimate purchaser acquires no manner of title, and notwithstanding his innocence is liable as a wrong-doer (c). Principles essen- tiallj^ similar, but affected in their application, and not un- frequeutly disguised, by the complexity of our law of real property, hold good of dealings with land {d). Acts of persons dealing in good faith with an apparent owner may be, and have been, protected in various ways and to a varying extent by different systems of law. The purchaser from an apparent owner may acquire, as under the iGommon-law rule of sales in market overt, a better title than his vendor had; or, by an extension in the same line, the dealings of apparently authorized agents in the way of sale or pledge may, for the security of commerce, have a special validity conferred on them, as under our Factors Acts (e) ; or one who has imiocently dealt with goods which he is now unable to produce or restore specifically may be held personally excused, saving the true owner's liberty to retake the goods if he can find them, and subject to the remedies over, if any, which may be available under a con- tract of sale, or a warranty for the person dispossessed by the true owner. Excuse of this kind is however rarely admitted, though much the same result may sometimes be arrived at on special technical grounds. (c) Hollins V. Fowler (1875) {d) See Pilcher v. Rawlins L. R. 7 H. L. 757, 44 L. J. Q. B. (1871) L. K. 7 Ch. 259, 41 L. J. 169; Cundy v. Lindsay (1878) 3 Ch. 485. App. Ca. 459, 47 L. J. Q. B. 481. (e) CoiisoUdated by the Factors Act, 1889, 52 & 53 Viet. u. 45. POSSESSION AND OWNERSHIP. 345 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 person wronged. But in fact the common law does present great difficulties; and this because its remedies were bound, until a recent date, to medieval forms, and limited by medieval conceptions. The forms of action brought not Ownership but Possession to the front in accordance with a habit of thought which, strange as it may now seem to us, found the utmost difficulty in con- ceiving 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 pro- tected against disturbance, but the rights of an owner out of possession were obscure and weak. To this day it continues so with regai'd to chattels. For many purposes the " true owner " of goods is the person, and only the person, entitled to immediate possession. The term is a short and convenient one, and may be used without scruple, but on condition of being rightly understood. Eegularly the common law protects ownership only through 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 interest. But when it has to be defended in a court of common law, the forms of action treat it rather as the shudow cast before by a right to possess at a time stiU to come. It was once said that there is no (/) See F. W. Maitland's articles Papers," vol. i., Cambridge, 1911, on " The Seisin of Chattels " and where divers profitable comparisona " The Mysteiy of Seisin," L. Q. E. of the rules concerning real and i. 324, ii. 481, also in " Collected personal property will bo found. 346 WRONGS TO POSSESSION AND PROPKKTV. dootrine of possession in our law. The reason of this appear- ance, an appearance capable of deceiving even learned persons, is that possession has aU. but sw-allowed up owner- ship; and the rights of a possessor, or one entitled to possess, have all but monopolized the very name of property. There is a common phrase in our books that possession is prima facie evidence of title. It would be less intelligible at first sight, but not less correct, to say that in the developed system of common law pleading and procedure proof of title was material only as evidence of a right to possess. And it must be remembered that although forms of action are no longer with us, causes of action are what they were, and cases may still occur where it is needful to go back to the vanished form as the witness and measure of subsisting rights. The sweeping protection given to rights of property at this day is made up by a number of theoretically distinct causes of action. The disturbed possessor had his action of trespass (in some special cases replevin); if at the time of the wrong done the person entitled to possess was not in actual legal possession, his remedy was detinue, or, in the developed system, trover. An owner who had neither pos- session nor the immediate right to possession could redress himself by a special action on the case, which did not acquire any technical name. Notwithstanding first appearances, then, the common law has a theory of possession, and a highly elaborated one. To discuss it fully would not be appropriate here (,g): but we have to bear in mind that it must be known who is in legal possession of any given subject of projDerty, and who is entitled to possess it, before we can tell what wrongs are (gr) Sec "An Essay on Posses- writer (^Oxford: Clarendon Presa, sion in the Common Law " by Sir 1888). R. S. Wright and the present POSSESSION AND OWNERSHIP. 347 capable of being oommitted, and against whom, by the person having physical control over it, or by others. Legal posses- sion does not necessarily coincide either with actual physical control or the present power thereof (the " detention " of Continental terminology), or with the right to possess (con- stantly called "property" in our books); and it need not lia\e a rightful origin. The separation of detention, pos- session 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 iixed time, and B. gives the book to his servant to carry home. Here B.'s servant has physical pos- session, better named custody or detention, but neither legal possession {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 deter- mining 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 wi'ong, the wrongful change of possession was the very substance of disseisin as to land, and is still the very substance of trespass by taking and carrying away goods {de bonis asportatis), and as such it was and is a* necessary condition of the offence of larceny at common law. The common law, when it must choose between denying (A) Yet if. is not certain that vant should not is that the bailee, he could not maintain trespass while the bailment lasts, can deal against a stranger; see Moore v. with the thing in any way con- RobinsoH (1831) 2 B. &; Ad. 817, sdstent with his contract, while the 36 R. R. 756. The law aljout the servant must deal with a thing in custody of servants and persons in his custody according to hisi a like position has vacillated from master's will, not the less so time to time, and has never been because that will may be and often defined as a whole. Perhaps the is to give the servant some dis- best reason why a bailee at wiU cretion. should have possession and a ser- 348 WRONGS TO POSSESSION AND PKOPERTY. legal possession to the person apparently in possession, and attributing it to a wron^-doer, generally prefers the latter course. In Roman law there is .no such general tendency, though the results are often similar (t). Trespass is the wrongful disturbance of another person's possession of land (/<;) or goods. Therefore it cannot be com- mitted by a person who is himself in possession (l); though in certain exceptional cases a dispunishable or even a right- ful possessor of goods maj' by his own act, during a continuous physical control, make himself a mere trespasser. But a possessor may do wTong 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 determined. As to goods he may detain them without right after it has become his duty to return them, or he may convert them to his own use, a phrase of which the scope has been greatly extended in the modern law. Thus we. have two kinds of duty, namely to refrain from meddling with what is lawfully possessed by another, and to refrain from abusing possession which we have lawfully gotten under a limited title; and the breach of these pro- duces distinct kinds of wrong, having, in the old system of the common law, their distinct and appropriate remedies. But a strict observance of these distinctions in practice would have led to intolerable results, and a working margin was (i) Cp. Holland, " Elements of latei' period, or was ever attempted Jurisprudence," 12th ©d. 198 s/jg. as to goods. (k) Formerly it was said that (!) E.g., a. mortgagee of chattels: trespass to land was a, disturbance w)io has taken possession cannot not amounting to disseisin, though commit a trespass by removing it might be " vicina disseisinae," the goods, although the mortgagor which is explained by " si ad com- may meanwhile have tender.ed the modum uti non possit." Bractoa, amount due: Johnson v. Diprose fo. 217 ci. 1 do not think this [1893J 1 Q. J3. 512, 62 L. J. Q. B. distinction was regarded in any 291, 0. A. POSSESSION AND TRKSPASS. 34 O given bj' beneficent fictions wliicli (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 (w); on the other hand the person wronged was constantly allowed at his option to proceed against a mere trespasser as if the trespasser had only abused a lawful or at any rate excusable possession. In the later history of common law pleading trespass and conversion became largely though not wholly interchange- able. Detinue, the older form of action for the recovery of chattels, was not abolished, bu,t it was generally preferable to treat the detention as a conversion and sue in trover (w), so that trover practically superseded detinue, as the writ of right and the various assizes, the older and once the only proper remedies whereby a freeholder could recover posses- sion of the land, were superseded by ejectment, a remedy at first introduced mereh' for the protection of leasehold interests. With all their artificial extensions these forms of action did not completely suffice. There might still be cir- cumstances in which a special action on the case was required. And these complications cannot be said to be even now wholly obsolete. For exceptional circumstances may still occur in which it is doubtful whether an action lies without proof of actual damage, or, assuming that the plaintiff is entitled to judgment, whether that judgment shall be for (jn) Seo Smith v. Millea (1786) dently oJ any physical apprehen- 1 T. E. 475, 480, and note that sion or transfer; (iii.) an imme- " constructive possession," as used diate riefht to possess which is dis- in our books, includes (i.) posses- tinot from actual possession. The sion exercised through a servant last-named usage appears to be the or licensee; (ii.) possession con- only really correct one. ferred by law, in certain cases, («) Blackst. iii. 152. e.g. on an executor, indepen- 350 WJRONGS TO POSSESSION AND PROPERTY. the value of the goods wrongfully dealt with or only for his actual damage, which may be a nominal sum. Under fiuch conditions we have to go back to the old forms and see what the appropriate action would have been. This is not a desirable state of the law (o), but while it exists we must take account of it. II. — Trespass. Trespass may be committed by various , kinds of acts, of which the most obvious are entry on another's land (trespass quwe clausum f regit), and taking another's goods (trespass de bonis asportatis) {p). Notwithstanding that tresjDasses punishable in the king's court were said to be vi et armis, and were supposed to be punishable as a breach of the king's peace, neither the use of force, nor the breaking of an enclo- sure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable Itlrespass. 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 trespass " (g). 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 (o) See per Tliesiger L. J., 4 oustesr of the tenant for years or Ex. Div. 199. other interest not freehold. (p) The exact parallel to tres- (y) EnticJc v. Carrington, 19 3)ass de bonis asportatis is of St. Tr. 1066. "Property" here., coursie not trespass qu. cl. jr. as constantly in our books, really simply, but trespass amounting to means possession or a right to a disseisin of the freeholder or possession. WHAT IS TRESPASS. iiSl Dartmoor (r), a licence (as to which more presently) would be implied. Oftentimes warnings or requests are addressed to the public to abstain from going on some specified 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 ex- pressed. But even so, persons using the land are no more than " bare licensees,'' and their right is of the slenderest. Loitering on a highway, not for the purpose of using it as a highway,* but for the purpose of annoying the owner of the soil in his lawful use of the adjacent land (s), or prying into his occupations there (<), may be a trespass against that owner. 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 EUenborough thought it was not in itself a trespass " to interfere with the column of air super- incumbent on the close," and that the remedy would be by action on the case for any actual damage: though he had no difficulty in holding that a man is a trespasser who fires a gun on Mis own land so that the shot fall on his neigh- bour's land (m) . Fifty years later Lord Blackburn inclined to think differently (x), and his opinion seems the better. (r) As a matter of laot, the B & S'. 249, 252, 34 L. J. JI. C. Dartmoor hunt had an expresa 87, 141 E,. R. 400, 402; and see licence from the Duchy of per Fry L. J. in Wntulsivorth Cornwall. Board of WorTcs v. United Tele- {s) Harrison v. Duke of Rutland phone Co. (1884) IS Q. B. Div. [1893] 1 Q. B. 142, 62 L. J. Q. B. 904, 927, 53 L. J. Q. Ej. 449. It 117, C. A. may be otherwise, as in that case, (t) Hickman v. Maisei/ [1900] 1 whei'e statutory interests in land Q. B. 752, 69 L. J. Q. B. 511, C. A. are conferred for special purposes. («) Pickering v. Rtidd (1815) 4 Lord Blackburn's opinion seems to ■Camp. 219, 221, 16 B. K. 777. have been overlooked when Lord (x) Kenyon v. Hart (1865) 6 EUenborough's dictum was cited 352 WRONGS TO POSSESSION AND PROPERTY. Clearly there can be a wrongful entry on land below the sur- face, as by mining, and in fact this kind of trespass is rather prominent in our modern books. It does not seem possible on the principles of the common law to assign any reason why an entry above the surface should not also be a trespass, unless indeed it can be said that the scope of possible tres- pass is limited by that of possible effective possession, which might be the most reasonable rule («/) . Clearly it would be a trespass to sail over another man's land in a balloon (much more in a controllable air-craft) at a level within the height of ordinary buildings, and it might be a nuisance to keep a balloon hovering over the land even at a greater height. As regards shooting, it would be strange if we could object to shots being fired point-blank across our land only in the event of actual injury being caused, and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property. But the projectiles of modem artillery, when fired for extreme range, attain in the course of their trajectory an altitude exceeding that of Mont Blanc or even Elbruz. It may remain in doubt whether the passage of a projectile at such a height could in itself be a trespass. ]\Iany continental authors, but by no means all, uphold a positive right toi free passage in the air (subject to reasonable regulation) as the base of any international convention on the subject. Whether it be desirable or not to invent such a right, it will not be found ready made in the common law {z) ; and with approval in tho High Court of be limited by the possible heiight Calcutta, Bagram v. Khettranath of buildings. (1869) 3 Ben. L. R. 18, 43. (,, g.^ g;^^,, g. Baldwin (ij) The G-erman (art. 905) and yC. J. of Connecticut) " The Law Swiss (art. 667) Civil Codes have of the Airship," Amer. Journal of adopted a rule of this kind: iit Intern. Law, iv. 95 (Jan. 1910); seems that th<3 range of effective Harold D. Hazeltine, " The Law possession cannot now be held to of the Air," London, 1911 ; Sir TRESPASS TO GOODS. 853 it is certainly not part of the law of nations, for all or most European Governments have made rules involving the denial of. it even in time of peace, and full national dominion is now explicitly recognized by convention (z^). Trespass by a man's cattle is dealt with exactly like tres- pass by himseflf ; 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 (a). Encroachment under or above ground by the natural growth of roots or branches of a tree standing in adjacent land is not a trespass, though it may be actionable as a' nuisance (ft). 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 possessor's interest (c), as by killing (d), beating (e), or chasing (/) animals, or de- facing a work of art. Where the possession is changed the trespass is an asportation (from the old form of pleading, cepit et asportavit for inanimate chattels, abduocit for ani- mals), and may amount to the offence of theft. Other Erie Richards, "Sovereignty over 12; Smith- v. Giddy [1904] 2 K. B. the Air," Oxford, 1913. The In- 448, 73 L. J. K. B. 894. A very ternational Law Association, at its leai ned writer suggests that thia conference held at Madrid in 1913, ouglif to have been the rule for rejected the " free air " doctrine: straying cattle also: Salniond, Law Corapte rendu, pp. 522 — 545. of Torts, p. 161. (zz} International Convention (c) Blackst. iii. 153. for the regulation of Aerial Navi- (d) Wright v. Ramscot, 1 Saund. gation, Pari. Papers, 1920, Cd. 670. 83, 1 Wms. Saund. 108 (trespass Domestic legislation is pending. for killing a mastiff). (o) Chapter XII. below. (c) Dand v. Sexton (1789) 3 (S) Lemmon v. Wehb [1895] T. R. 37 (trespass vi et armis for A. 0. 1,. 64 L. J. Oh. 205; on this beating the plaintiff's dog). point see per Lindley L. J. in (/) A form of writ is given for C. A. [1894] 3 Ch. a;t pp. 11 — chasing' the plaintiff's sheep with P. — T. 23 354 WEONGS TO POSSESSIOIS' AND PR0PP:RTY. trespasses to goods may be criminal offences under the head of malicious injury to property. The formerly doubtful doctrine of the civil trespass being " merged in the felony " when the trespass is felonious has been considered in an earlier chapter (gr). Authority, so far as known to the present writer, does not clearly show whether it is in strict- ness a trespass merely to lay hands on another's chattel with- out either dispossession (Ji) or actual damage. By the analogy of trespass to land it seems that it should be so. There is no doubt that the least actual damage would be enough (i). 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 (it). III. — Injicries to Reversion. A person in possession of property may do wrong by refusing to deliver 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 cover of his real possessory title but in excess of his rights, or, where the nature of the object admits of it, by acts amounting to destruction or total change of character, such as breaking up land by opening mines, burning wood, grinding corn, or spinning cotton into yarn, which acts however are only the extreme exercise of assumed dominion. The law started P. N. B. 90 L.; so for loughhy (1841) 8 M. & W. 549, shearing the plaintiff's sheep, ih. 58 R. B. 810. In Kirk v. 87 G. Gregory (1876) 1 Ex. D. 55, the {g) P. 201, above. trespass complained of was almost (K) See Gaylard, v. Morris nominal, but there was a com- (1849) 3 Ex. 665, 18 L. J. Ex. 297. plete asportation while the inter- («■) " Scratching the panel of a meddling lasted. carriage would be a tresipass," (Jc) See F. N. B. 86 — 88, Aldefson B. in Fouldes v. Wil- passim. INJURIES TO REVERSION. 355 from entirely distinct conceptions of the mere detaining of property from the person entitled, and the spoiling or alter- ing it to the prejudice of one in reversion or remainder, or a general owner (?). 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 wi-it of debt, which was precisely similar in form to the writ of right) for goods; to this must Ibe added, in special, but once frequent and important cases, replevin (m). For the latter the writ of waste (as extended by the Statutes of Marlbridge and Gloucester) was available as to land; later this was supplanted by an action on the case (re) " in the nature of waste," and in modern times the power and remedies of courts of equity have been found still more effectual (o). The process of devising a practical remedy for ovraers 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 (V) As to the term "" reversion- Blaokstone is wrong in stating it to -ary interest " applied to goods, cp. have been older than the assizes. Dicey on Parties, 345. In one way See Pollock and Maitland, Hist, "reversioner " would be more cor- Eng. Law, Bk. ii., o. 4, § 2 ud fin. rect than " owner " or " general («) Under certain conditions owner," for the person entitled to waste might amount to trespass), «ae in trover or prosecute for theft Litt. s. 71, see more in sect. vii. is not necessarily dominus, and the of the present chapter. dominus of the chattel may be dis- (o) For the history and old law, qnaUfied from so suing or pro- see Co. Litt. 53, 54; Blaokst. ii. secnting. 281, iii. 225; notea to Greene v. (ot) It seems useless to say Cole, 2 Wms. Saund. 644; and jnore of replevin here. The curious Woodhoiise v. Walker (1880) 5 reader may consult Mennie v. Q. B. D. 404, 49 L. J. Q. B. 609. BlaTce (1856) 6 E. & B. 842, 25 The action of waste proper could L. J. Q. B. 399, 106 R. R. 322. be brought only " by him that hath For the earliest form of writ of , the immediate estate of inherit- ■entry see Close RoUs, vol. i. p. 32. ance." Co. Litt. 53 a. 23 (2) 356 WRONGS TO POSSESSION AND PROPERTY. the defendant found the plaintiff's goods and converted them to his own use {p). The original notion of conversion in personal chattels answers closely to that of loaste in tene- ments; but it was soon extended so as to cover the whole ground of detinue {q), 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 excep- tion to the true owner " waiving the trespass," and professing to assume in the defendant's favour that his possession had a la'\\'ful origin. IV.— Waste. Waste is any unauthorized act of a tenant for a freehold estate not of inheritance, or for any lesser interest, which tends to the destruction of the tenement, or otherwise to the injury of the inheritance. Such injury need not consist in loss of market value; an alteration not otherwise mischie- vous may be waste in that it throws doubt on th6 identifica- tion of the property, and thereby impairs the evidence of title. It is said that every conversion of land from one species to another — as ploughing up woodland, or turning arable into pasture land — is waste, and it has even been said that building a new house is waste (r) . But modern authority (p) Blaokst. iii. 152, ef. the and Wright on Possession, 174. judgment of Martin B. in Btir- (?) Martin B., I. v., whos& )-o«p'Aes V. Bsj/Me (1860) 5 H. & N. phrase "in very ancient tunes;" 296, 29 L. J. Ex. 185, 188, 120 is a littl6 misleading, for trover, R. R. 594, 597 ; and as to the forms as a settled common form, seema of pleading, Bro. Ab. Accion sur to date only from the 16th century; le Casie, 103, 109, 113, and sc« Reeves Hist. Eng. Law, iv. 536. Littleton's remark in 33 H. VI., (r) " If the tenant build a new 27, pi. 12, an action of detinue house, it is waste; and if he where a finding by the defendant suffer it to be wasted', it is a new was alleged, that "this declaration waste.'' Ck). Litt. 53 a. Contra per inventionem is a new found as to the building, Davey v. Haliday"; the case is translated Askwith (1617) Hob. 234. by Sir E. S. Wright in Pollock WASTE. 357 does not bear this out; " in order to prove waste you rnasH prove an injury to the inheritance " either " in the sense of value " or " in the sense of destroying identity " (s). The real test seems to be whether the acts complained of alter the nature of the thing demised (t). And in the United ^States, especially the Western States, many acts are held to be only in a natural and reasonable way of using and improv- ing the land — clearing wild woods for example — which in England, or even in the Eastern States, would be manifest waste. As to permissive waste, i.e., suffering the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon him by the instrument creating his estate; otherwise he is not (ii). It seems that it can in no case be waste to use a tenement in an apparently reason- able and proper manner, ' ' having regard to its character and to the purposes for which it was intended to be used " (x), whatever the actual consequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent knowledge and assent of the owner of the inheritance, the Court will make all reasonable presumptions in favour of referring acts so done to a lawful origin (y). Destructive waste by a tenant at wiU may amount to trespass, in the strict sense, (i) Jcynes v. Chappell (1875) D-M-G. U6; Re Eotchkys, Freke L. R. 20 Eq. 539, 540-2 (Jessel v. Calmady (1886) 32 Oh. D. 408, il. E.); Meux v. Cobley [1892] 2 55 L. J. Ch. 546. Ch. 253, 61 L. J. Ch. 449. (a;) Manchester Bonded Ware- (0 West Mam Central Charity Iwase Co. v. Carr (1880) 5 0. P. Board v. E. London Waterworks D. 507, 512, 49 L. J. C. P. 809; Co. [ISOO] 1 Ch. 624, 69 L. J. Ch. following Saner v. Bilton (1878) 257. 7 Oh. D. 815, 821, 47 L. J. Ch. («) He C artw right, Aifis \ . New- 267; cp. Job v. Potton (1875) L. W3« (1889) 41 Ch. D. 532, 58 L. J. R. 20 Eq. 84, 44 L. J. Ch. 262. Ch. 590. An e;iuitable tenant for (y) E/ias v. Snotvdon Slate life is not liable for permissive Quarries Co. (1879) 4 App. Ca, ■B-asfo: PoKijs v. Blagrave (1854) 4 454, 465, 48 L. J. Ch. 811. 358 WRONGS TO POSSESSION AND PROPERTY. against the lessor. The reason will be more conveniently explained hereafter (2) . In modern practice, questions of waste arise either between a tenant for life (a), and those in remainder, or between landlord 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 varioua 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 estates " on which wood is grown for the purpose of periodical cutting and sale, so that " cutting the timber is the mode of cultivation" (6). On such land cutting the timber is equiva- lent to taking a crop of arable land, and if done in the usual course is not waste. A tenant for life whose estate is ex- pressed 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) (c), open a mine in a garden or pleasure ground, or do like acts destructive to the individual character and amenity of the dwelliiig-place {d) . The com- (s) See below insect, vii. of this and Dashwood v. Magnicic [1891] chapter. 3 Ch. 306, 60 L. J. Oh. 809, C. A. (a) In the United States, where (c) See Baker v. Sebright tenancy in dower is still common, (1879) 13 Ch. D. 179, 49 L. J. Oh. there are many modern decisions 65; but it seems that a remainder- on questions of waste arising out man coming in time would be of such tenancies. See Scribner entitled to the supervision of the on Dower (2nd ed. 1883) i. 212— Court in such case: 13 Ch. D. at 214; ii. 795 sqq. p. 188. The Court has not to decide (S) As to the general law con- what is actually ornamental : Weld- cerning timber and its possible Blundell v. Wolseley [1903] 2 Ch. variation by local custom, see the 664, 73 L. J. Ch. 45. judgment of Jessel M. R., Hony- {d) AVaate of this kind was wood V. Jlonywood (1874) L. R. known as " equitable waste,'' the 18 Eq. 306, 309, 43 L. J. Ch. 652, commission of it by «. tenant un- WASTE. 359 mission of such waste may be restrained by injunction, without regard to pecuniary damage to the inheritance: but, when it is once committed, the normal measure of damages can only be the actual loss of value (e). Further details on the subject wo'uld not be appropriate here. They belong rather to the law of Real Property. 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 appro- priate action on the case) because it is also a breach of the tenant's contract (/). Since the Judicature Acts it is im- possible to say whether an action alleging misuse of the tenement by a lessee is brought on the contract or as for a tort {g): doubtless it would be treated as an action of con- tract if it became necessary for any purpose to assign it to one or the other class. V . — Conversion . Conversion may be described as the wrong done by "an unauthorized act which deprives another of his property per- manently or for an indefinite time " (h). Such an act may impeachable for waste not being (ff) E.g. Tucker v. Linger treated as wrongful at common (1882) 21 Ch. D. 18, 51 L. J. Oh. law; see now 36 & 37 Vict. c. 66 713. (the Supreme Court of Judicature (/i) Bramwell B., adopting the Act, 1873), s. 25, sub-a. 3. expression of Bosanquet, arg., (ff) Mubb V. Yelverton (1870) Iliort v. Bott (1874) L. R. 9 Ex. L. R. 10 Eq. 465. Here the 86, 89, 43 L. J. Ex. 81. All, or tenant for life had acted in good nearly all, the learning on the sub- faith under the belief that he was ject down to 1871 is collected (in improving the property. Wanton a somewhat formless manner it acts of destruction would be very must be allowed) in the notes to diflcerently treated. WUbraham v. Snpw, 2 Wms. (/) 2 Wms. Saund. 646. Saund. 87. 360 WRONGS TO POSSESSION AND PEOPEETY. or may not include a trespass; whether it does or not is immaterial as regards the right of the plaintiff in a civil action, for even under the old forms he might " waive the trespass"; though as regards the possibility of the wrong- doer being criminally liable it may still be a vital question, trespass by taking and carrying away the goods being a necessary element in the offence of larceny at common law. But the definition of theft (in the first instance narrow but strictly consistent, afterwards complicated by some judicial refinements, and by numerous unsystematic statutory addi- tions) does not concern us here. The " property " of 'which the plaintiff is deprived — the subject-matter of the right which is violated — must be something which he has the immediate right to possess; only on this condition could one maintain the action of trover under the old forms. Thus, where goods had been sold and remained in the vendor's possession subject to the vendor's lien for unpaid purchase- money, the 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 (i) . But an owner not entitled to immediate possession might have a special action on the case, not being trover, for any permanent injury to his interest, though the wrongful act might also be a trespass, conversion, or breach of contract, as against the immediate possessor (k). As under the Judi- cature 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 (0 Zord V. Price (1874) L. R. 9 dick [1891] 2 Q. B, 413, 60 L. J. Ex. 54, 43 L. J. Ex. 49. Q. B. 676, which assumes that a (k) Hears v. L. # S. W. R. Co. bailor for a term has no remedy (1862) 11 C. B. N. S. 850, 31 L. J. against a stranger who injures the C. P. 220, 132 R. R. 778. This cliattel. The authority of that case appears to have been overlooked in is very doubtful, see Sanderson v. the reasoning if not in the decision Collins [1904] 1 K. B. 628, 73 of the Court in Coupe Co. v. Mad- L. J. K. B. 358, O. A. CONVERSION, 361 should not be extended to cover these last-mentioned cases. On the other hand, the name has been thought altogether objectionable by considerable authorities (Z): and certainly the natural meaning of converting property to one's own use has long been left behind. It came to be seen that the actual diversion of the benefit arising from use and possession was only one aspect of the wrong, and not a constant one. It did not matter to the plaintiff whether it was the defendant, or a third person taking delivery from the defendant, who used his goods, or whether they were used at all; the essence of the injury was that the use and possession were dealt with in a manner adverse to the plaintiff and inconsistent with his right of dominion. The grievance is the unauthorized assumption of the powers of the true owner. Actually dealing with another's goods as ovsmer for however short a time and however limited a purpose (m), 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 (n). It makes no difference that such acts were done under a mistaken but honest and even reasonable supposition of being lawfully entitled (to), or even with the intention of benefiting the true owner (w); nor is a servant, or other merely ministerial (Z) See 2 Wms. Saund. 108, and tvort v. Comptoir d'Escompte per Bramwell L. J., 4 Ex. D. 194 [1894] 2 Q. B. 157, 63 L. J. Q. B. (not for the first time, see 2 H. & 674. The same principle is illus- N. 532, 115 E. E. 682). trated by Union Credit Bank v. (»«) HolUnn V. Fowler (1875) Mersey BocTes and Harbour Board L. E. 7 H. L. 757, 44 L. J. Q. B. [1899] 2 Q. B. 205, 6S L. J. Q. B. 169. Cashing' a cheque in good 842. faith on. a fraudulently altered («) Hiort v. Bott (1874) L. E. indorsement is a conversion as 9 Ex. 86, 43 L. J. Ex. 81. against the true indorsee: Klein- 362 WRONGS TO POSSESSION AND PROPERTY. 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 his master's benefit " (o). It is common learning that a refusal to deliver possession to the true owner on demand is evidence of a conversion, but evidence only (p) ; that is, one natural inference if 1 hold a thing and will not deliver it to the owner is that I repu- diate his ownership, and mean to exercise dominion in despite of his title either on my own behalf or on some other claimant's. " If the refusal is in disregard of the plaintiff's title, and for the purpose of claiming the goods either for the defendant or for a third person, it is a conversion " (q). But this is not the only possible inference, and may not be the right one. The refusal may be qualified and pro- visional: the possessor may say, " I am willing to do right, but that I may be sure I am doing right, give me reason- able proof that you 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 clairn (r). Or a servant having the mere custody of goods under the possession of his master as bailee — say the servant (o) StepJiens v. Elwall (1815) noy [1911] 2 K. B. 1031, 81 L. J. 4 M. & S. 259, 16 E. R. 458; K. b'. 49, C. A., where the plain- admitted to be good law in tiff's solicitor vainly tried to im- Ilollins V. Fowler, L. E. 7 H. L. prove his case by making a formal at pp. 769, 795, and followed in demand after the issue of his writ. Barker v.- Furlong [1891] 2 Ch. (?) Opinion of Blackburn J. in 172, 60 L. J. Ch. 368. Cp. Fine HoUins v. Fowler, L. R. 7 H. L. Art 'Society v. Union Bank of at p. 766. London (1886) 17 Q. B. Div. 705, (r) See Burroughes v. Bayne 56 L. J. Q. B. 70. (1860) 5 H. & N. 296, 29 L. J. (i») Balme v. Hutton, Ex. Ch. Ex. 185, 188, 120 E. E. 594, 597, (1833) 9 Bing. 471, 475. Still less supra, p. 356, note (p). Such a, will mere detention of the goods conditional or dilatory refusal wiU before any demand suifice without not be a conversion mereJy because further proof that the holder the possessor's reasons for it are assumes dominion in disregard of bad in law: Clayton v. Le Boy, the owner's title: Clayton v. Le note Qp) above. WHAT IS CONVERSION, 363 of a warehousemaii having the key of the warehouse — may, reasonably and justifiably say to the bailor demanding his goods: " 1 cannot deliver them without my master's order "; and this is no conversion. " An unqualified refusal. is almost always conclusive evidence of a conversion; but if there be a qualification annexed to it, the question then is whether it be a reasonable one " (s). Again, there may be a wrongful dealing with goods, not under an adverse claim, but to avoid having anything to do with them or with their owner. Where a dispute arises between the master of a ferryboat and a passenger, and the master refuses to carry the pas- senger, and puts his goods on shore, this may be a trespass, but it is not of itself a conversion {t). This seems of little importance in modern practice, but we shall see that it might still affect the measure of damages. In many cases the refusal to deliver on demand not only proves but constitutes the conversion. When this is so, the Statute of Limitation runs from the date of the refusal, without regard to any prior act of conversion by a third person (u). By a conversion the true owner is, in contemplation of law,, totally deprived of his goods; therefore, except in a few very special cases (x), the measure of damages in an action of trover was the full value of the goods, and by a satisfied judgment (y) for the plaintiff the property in the goods, if they still existed in specie, was transferred to the defendant. (s) Alexander v. Southey (1821) (a;) See p«r Bramwell L. J., 3 5 B. & Aid. 247, per Best J. at Q. B. D. 490; Hiort^. L. # N. W. p. 250; 24 E. E. 348, 350. Jt. Co. (1879) 4 Ex. Div. 188, 48 (f) Fouldes V. Willougkby L. J. Ex. 545, where, however, (1841) 8 M. & W. 540, 58 E. E. Bramwell L. J. was the only mem- 803 ; ep. Wilson v. McLaughlin ber of the Court who was clear that (1871) 107 Mass. 587. there was any conversion at all. (u) Miller V. Dell [1891] 1 Q. B. (jy) Not by judgment without 468, 60 L. 3. Q. B. 404, C. A. satisfaction: Ex parte Brake 364 WRONGS, TO POSSESSION AND PROPERTY. The mere assertion of a pretended right to deal with goods ■or threatening to prevent the owner from dealing with them is not conversion, though it may perhaps be a cause of action, if special damage can be shown (0) ; indeed it is doubtful whether a person not already in possession can commit the wrong of conversion by an act of interference limited ta a. special purpose, and falling short of a, total assumption of dominion against the true owner (a). An attempted sale of goods which does not affect the property, the seller having no title, and the sale not being in market overt, nor yet the possession, there being no delivery, is not a conversion. If undertaken in good faith, it would seem not to be actionable at all; otherwise it might come within the analogy of slander of title. But if a wrongful sale is followed up by delivery, both the seller (b) and the buyer (c) are guilty of a conversion. Again, a mere collateral breach of contract in dealing with goods entrusted to one is not a conversion; as where the master of a ship would not sign a bill of lading except with special terms which he had no 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 (d). A merely ministerial dealing with goods, at the request of an apparent owner having the actual control of them. (1877) Ch. Div. 866, 46 L. J. Bk. FUdiugh (1861) 6 H. & N. 502, 29; following Brimmead v. Harri- 30 L. J. Ex.. 231, 123 E. R. 646 3on (1871) L. R. 6 C. P. 584, 40 (action by bailor against sheriff, L. J. C. P. 281. for selling the goods absolutely as (z) England v. Cowley (1873) gooda of the bailee under a /Z. /«.; L. R. 8 Ex. 126, see per Kelly the decision is on the pleadings •C. B. at p. 132, 42 L. J. Ex. 80. only). (a) See per Bramwell B. and (e) Cooper v. Willomatt (1845) Kelly C. B., L. R. 8 Ex. 131, 1 C. B.. 672, 14 L. J. C. Pu 219, 132, and Union Credit Bank v. 68 R. R. 798. N. # S. Wales Bank [1899] 2 Q. E. i^d) Jones v. Hovgh (1879) 5 Ex. 205, 215, 68 L. J. Q. B. 842. Div. 115, 49 L. J. Ex. 211; op. (6) Lancashire Waggon Co. v. Ileald v. Carey (next note). WHAT IS CONVERSION, 365 appears not to be conversion (e); 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 HoUim v. Fowler (/) 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 bas the autho- rity 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 {g), if he was a finder of the goods, or intrusted with their custody." This excludes from protection, and was intended to exclude, such acts as those of the defendants in the case then at bar: the_y 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 cus- tomer as principal, but a purchase with a mere expectation of that customer (or some other customer) taking the goods; the defendants therefore exercised a real and effecti\e though transitory dominion: and having thus assumed to dispose of (e) IJeald v. Carer/ (1852) 11 perly do. C. B. 977, 21 L. J. O. P. 97; 87 (/) L. E. 7 H. L. at pp. 766— R. R. 353; but this is really a 768. case of the class last mentionedi, (g) Observe that this means for the d«fendajit received the physical possession; in some of goods on behalf of the true ov?ner, the cases proposed it woula be and was held to have done nothing accompanied by legal possession,, with theitl that he might not pro- in others not. 366 WRONGS TO POSSESSION AND PROPERTY. the goods, they were liable to the true owner {h). 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 (i). But what of the servants of those purchasers, who handled the cotton under their authority and apparent title, and by making it into twist wholly changed its form? Assuredly this was conversion enough in fact and in the common sense of the word; but was it a conversion in law? Could any one of the factory hands have been made the nominal de- fendant 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 com? Lord Blackburn thought these questions open and doubtful (fc). There appears to be nothing in the authorities to prevent it from being ex- cusable 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 direc- tion; neither the act done, nor the contract (if any), pur- porting to involve a transfer of the supposed property in the goods, and the ostensible owner's direction being one which he could lawfully give if he were really entitled to his apparent interest, and being obeyed in the honest {T) belief Qi) See per Lord Cairns, L. R. Qc) See last note. 7 H. ly. at p. 797. This principle (0 Should we say "honest and applies to sale and delivery by an reasonable"? It seems not; a per- auctioneer without notice of the son doing a ministerial act of this apparent owner's want of title: kind honestly but not reasonably Consolidated Co. v. Curtis \ 1892] ought to be liable for negligence 1 Q. B'. 495, 61 L. J. Q. B. 325. to the extent of the actual damage (i) Blackburn, J., L. R. 7 H. L. imputable to his n^ligenoe, not 764, 768. in trover for the full value of the CONVERSION BY BAILEE, 367 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 already in possession. But this could not be done with- out overruling accepted authorities (m). A bailee is frima facie estopped as between himself and the bailor from disputing the bailor's title (w). A person holding goods as a warehouseman or the like may bring himself under this rule by attornment, and may be estopped, notwithstanding manifest wunt of title, as against the person to whom he was attorned (o). Hence, as he cannot be liable to two adverse claimants at onoe^ he is also justified in redelivering to the baQor in pursuance of his employment, so long as he has not notice (or rather is not under the effective pressure) (p) 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 {q). When there are really conflict- ing claims, the contract of bailment does not prevent a goods; and even apart from the [1895] 1 Q. B. 521, 64 L. J. Q. B. technical efEect of conversion, 308, C. A. negligence would be the snbstan- (jo) Biddle v. Bond (1865) 6 tial and rational ground of B. & S. 225, 34 L. J. Q. B. 137, liability. Behaviour grossly incon- wliere it is said that there must sistent with the common prudence be something equivalent to eviction of an honest man might here, as by title paramount. ■elsewhere, be evidence of bad faith. (?) See Sheridan v. New Quay irn) See Stephens v. Elv^ll f"' ^^^^^ ^ ^- ^- ^- S- 618, 28 (1815) 4 M. & S. 259, 16 R. E. ^- •^- ^- ^- ^^> ^^^ ^- ®- ^"^^ 468; Barker v. Furlonff [1891] 2 ^""^"^ ""^^ ^^^ difl^rence in the Ch. 172, 60 L. J. Ch. 368, p. 362, "^^ °* * common carrier); Ilwo- , pean and Australian lloxial Mail above. *^ Co. V. Royal Mail Steam Packet («) 7 Hen. VII. 22, pi. 3, per ^^ ^.^g^^^ g^ ^ j ^ p 247^ Martin. Common learning m j26 R. R. 884; Jessel M. R. in modern books. Ex parte Davies (1881) 19 Ch. Div. (0) Henderson v. If'i/liams 86, 90. 368 WKONGS TO POSSESSION AND PROPERTY. bailee from taking interpleader proceedings (r). This case evidently falls within the principle suggested by Lord Blackburn; but the rules depend on the special character of a bailee's contract. Where a bailee has an interest of his own in the goods (as in the common cases of hiring and pledge) and under colour of that interest deals with the goods in excess of his right, questions of another kind arise. Any excess what- ever by the possessor of his rights under his contract with the owner wiU of course be a breach of contract, and it may be a wrong. But it will not be the wrong of conversio.a unless the possessor's dealing is " wholly inconsistent with the contract under which he had the limited interest," as if the hirer for examj)le destroys or sells the goods (s) . That is a conversion, for it is deemed to be a repudiation of the contract, so that the owner who has parted with possession for a limited purpose is by. the wrongful act itself restored to the immediate right of possession; and becomes the effectual " true owner " capable of suing for the goods or their value. But a merely irregular exercise of power, as a sub-pledge {t) or a premature sale (m), 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 (a;). (r) Mayers v. Lambert [1891] 1 fully paid the measure of damages Q. B. 318, 60 L. J. Q. B. 187, is only the amount of the unpaid icAhywijig Biddle \. Bond, Tioie Qp). instalments: WMteley v. Hilt (s) Blackburn J., L. R. 1 Q. B. [1918 J 2 K. B. 808, 87 L. J. K. B. 614; Cooper v. V'illorrmtt (^1845) 1058, C. A. 1 C. B. 672, 14 L. J. C. P'. 219, (O Donald v. Suckling (1866) 68 R. R. 798. It can be a trespass L. R. 1 Q.- B. 585, 35 L. J. Q. B. only if the bailment is at will. 232. Under the ordinary hire-purchase («) HaiUday s-. Holgate (1868) agreement the hirer has an assign- Ex. Ch. L. R. 3 Ex. 299; see at able interest, and if he sells to a p. 302, 37 L. J. Ex. 174. third person before the price is (x) In Johnson v. 8tear (1863) CONVERSION BY BAILEE. 369 The technical distinction bet\TCen 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 lien, which gives no power of disposal at all, is different; there the holder's only right is to keep possession until his claim is satisfied. If he" parts with possession, his right is gone, and his attempted disposal merely wrongful, and therefore he is liable for the full value {y). But a seller remaining in possession who resells before the buyer is in default is liable to the buyer only for the damage reaUy 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 {z). The seller cannot sue the buyer for. the price of the goods, and if the buyer could recover the full value from' the seller he would get it without any consideration : the real substance of the cause of action is the breach of contract, which is to be compensated according to the actual damage (a). A mortgagor having the possession and use of 15 C. B. N. S. 330, 33 L. J. C. P. (41 & 42 Vict. c. 38), but the prin- 130, 137 K. E. 532, nominal ciple may still bo applicable in damages were given; but it is other cases. doubtful whether, on the reason- («; Chinery v. Viall (1860) 5 ing adopted by the majority of the H. & N. 288, 29 L. J. Ex. 180, Court, there should not have been 120 71.: E. 588. This rule cannot judgment for the defendant: see be applied, in favour of a sub- 2 Wms. Saund. 114; Blackburn J., vendor sued for conversion by the I/. E. 1 Q. B. G17; Bramwell L. J., ultimate purchaser, there being no 3 Q. B. D. 490. privity between them: Johnson v. (y> Mulllner v. Florence (1878) Lanes. # YorJcshiye E. Co. (1878) 3 Q. B. Div. 484, 47 L. J. Q,. B. 3 G. P. D. 499. 700, where an innkeeper sold a {a) " A man cannot by merely oTiert's goods. A statutorj' power changing the form of action entitle of sale was given, to innkoopers- i himself to recover damages greater very shortly after this decision than the amount to which lie is in P.- -T. 24 370 WRONGS TO POSSESSION AND PROPEKTY. goods under oovenants entitling him thereto for a certain time, determinable by default after notice, is virtually a bailee for a term, and, like bailees in general, may be guilty of conversion by an absolute disposal of the goods; and so may assigns claiming through him with no better title than his o^vn; the point being, as in the other cases, that the act is entirely inconsistent with the terms of the bail- ment (6). One may be allowed to doul)t, with Lord Black- burn, whether these fine distinctions have done much good, and to wish " it had been originally determined that even in such cases the owner should bring; a special action on the) case and recover the damage which he actually sustained" (c). 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 fuU value can be recovered: (ii) Cases where there is a conversion but only the plaintiff's actual damage can be recovered: (iii) Cases where there is a conversion but only nominal damages can be recovered; but such cases are anomalous, and depend on the substantial cause of action being the breach of a contract between the parties; it seems doubtful whether they ought ever to have been admitted {d): law entitled according to the true to trespass and larceny carefully facts of the case and the real noted in the judgment deUvea'ed nature of the transaction:" per by Parke B. Cur. 5 H. & N. 295, 120 E. R. 593. (c) L. R. 1 Q. B. at p. 614. (6) Fenn v. BUUeston (1851) 7 (d) On the question whether full Ex. 152, 21 L. J. Ex. 41, 86 R. R. or only nominal damages can be 593 ; where see the distinctions as recovered for conversion of a docu- TENANTS IN COMMON. 371 (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. A man may be liable by estoppel as for the conversion of goods which he has represented to be in his possession or control, although in fact they were not so at any time when the plaintifl was entitled to possession (e). And he may be liable for conversion by refusal to deliver, when he has had possession and has wrongfully delivered the goods to a person having no title. He cannot deliver to the person entitled when the demand is made, but, having disabled himself by his own wrong, he is in the same position as if he stiU had the goods and refused to deliver (/). Conversely, a plaintiff may be estopped by conduct which amounts at any rate to an apparent authority to deal with the goods in the manner complained of {g). VI. — Injuries betweem Tenants in Common. As between tenants in common of either land or chattels there cannot be trespass unless the act amounts to an actual ouster,' z'.e. dispossession. Short of that "trespass will not lie by the one against the other so far as the land is con- cerned " (h). In the same way acts of legitimate use of ment which is not negotiable, but L. T. 234, C. A. only evidence of a debt, see Bavins, (g) Union Credit Banh v. jr. ^ Sims v. L. ^ 8. W. Bank Mersey Bocks and Harbour Board [1900] 1 Q. B. 270, 69 L. J. Q. B. [1899] 2 Q. B. 205, 68 L. J. Q. B. 164, C. A., where the plaintdffsl 842. As to what will and will ware held entitled, to recover in not amount to such authority, see fiall on other grounds. Farquharson Bros. ^ Co. v. King (e) Seton v. Lafone (1887) 19 ^ Co. [1902] A. C. 325, 71 L. J. •Q. B. Div. 68, 56 L. J. Q. B. 415. K. B. 667. (/) Bristol and W. of England (A) Lord Hatherley, Jacobs v. Bank v. Midland B. Co. [1891] 2 Seioard (1872) L. R. 5 H. L. 464, and de facto enjoyment does not even provisionally create- any substantive right, but is material only as an incident in the proof of title . IX. — Grmmds of Justification and Excuse. 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 see) by the authority of the law. That consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful, is called a licence. There may be licences not affecting the use of property at all, and on the other hand a licence may be so connected with the transfer of property as to be in fact inseparable from it. " A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a man's park, to come into his house, are only actions which without licence- had been unlawful. But a licence to hunt in a man's park and carry away the deer killed to his own use, to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cuttiiig do.wn the tree, but as to the carrying away of the deer killed and tree cut down they axe grants. So to licence a man to eat my meat, or to fire the wood in my chimney to warm him by; as to the actions of heating, firing mj- wood iand iWarming him, they are licences: but it is consequent necessarily to those actions that my property be destroyed {p) See note («), above. 382 WKONGS TO POSSESSION AND PROPERTY. in the meat eaten, and in the wood barnt. So as in some cases by consequent and not directly, and as its effect, a dispensation or licence may destroy and alter property " (q). Generally speaking, a licence is a mere voluntary sus- pension 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 (r), 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 revo- cation of a licence is in itself no less effectual though it may be a breach of contract. If the owner of land or a building admits people thereto on payment, as spectators of an enter- tainment 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 legal title to stay, and if he persists in staying he is a tresp'asser. So far as pure common law goes, his only right is to sue on the contract (s), as he clearly may do where a contract exists (t). What is more, in that case he may get an injunction, and so be indirectly restored to the enjoyment of the licence (m). This (. Ilol- See the Digest of Eng. Case. Iroolc (1873") L. R. 8 Q. B. 96, Law, Animals, s. t. "Pound and 42 L. J. Q. B. 80. Poundage." •398 WRONGS TO POSSESSION AND PEOPERTY. it and carried it to the plaintiff's barn to save it: to which the j)laintiff demurred. Kingsmill J. said that a taking witliout consent naust be justified either by public necessity, or "by reason of a condition in law"; neither of wliich 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) (i), and entering in war time to make fortifications. " The defend- ant's intention," said Eede C. J., " is material in felony but not in trespass; and here it is not enough that he aated' 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's man's land, 1 may not enter to drive them out; and yet it would be a good deed to drive them out so that they do no more damage; but it is otherwise if another drive my horses into a stranger's land where they do damage, there 1 may justify entry to drive them out, because their wrong-doing took its beginning in a stranger's wrong. But here, because the party might have his remedy if the corn were anywise destroyed, the taking was not lawful. And it is not like the case where things are in danger of being Tost by water, fire, or such like, for there the destruction is without remedy against any man. And so this plea is not -good" (fc). Fisher J. concurred. There is little or nothing ((') Cp. Littleton. ,T. in S. B. has rights, for the protection of '9 Ed-n . IV. 35: "If a man hi/ his own interest, may be justified tiec/liffence suSer his house io h\iin, by reasonably apparent necessity: 1 who am his neighbour may break Cope v. Sharpe (No. i) [1912] 1 down the house to avoid the danger K. B. 496, C. A. to me, for if 1 let the house stand, (/t) 21 Hen. VII. 27, pi. 5 (but it may burn so that I cannot the case seems really to belong to quench the fire afterwards." Tres- Hilary term of th-e next yeaj, see pass on land over which a man s. v., Keilw. 88 a; Frowike was TRESPASS AS INITIO. 399 to be added to tlxo statement of the law, though it may, be doubted whether it is now likely ever to be strictly applied. Excuse of this kind is always more readily allowed if tlie possessor of tlie 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 can- not be used except by deviation on his adjacent land {V). At one time it was supposed that the law justified entering on land in fresh pursuit of a fox, because the destruction of noxious animals is to be encouraged; but this is not the law now. If it ever was, the reason for it has long ceased to exist (to) . • Practically f oxhunters do well enough (in this part of the United Kingdom) with licence express or tacit. There is a curious and rather subtle distinction between justification by consent and justification or excuse under authority of law. A possessor by consent, or a licensee, may commit a wrong by abusing his power, but (subject to the peculiar exception in the case of letting or bailment at will mentioned above) {n) he is not a trespasser. If I lend you a horse to ride to York, and you ride to Carlisle, I shall not have (under the old forms of pleading) a general action of trespass, but an action on the case. So if a lessee for years holds over, he is not a trespasser, because his entry was authorized by the lessor (o). But " when entry, authority, or licence is given to any one by still Chief Justice of Common Pleas which have come on another's land in Trinity term 21 Hen. VIT., ib. by inevitable aoeidont; sec Story, S6 h, pi. 19; he died in the fol- Bailments, § 83 a, note. lowing vacation, and Rede, was (7) Selhi/ v. Nettlefold (1873) appointed in his stead, ih. 85 b, L. R. 9 Ch. Ill, 43 L. J. Ch. 3.')9. where for Mich. 22 Hen. VII. we (».) Paul \. Summerhai/ei (1878) should obviously read 21); ep. 4 Q. B. D'. 9, 48 L. J. il. C. 33. 37 Hen. VI. 37, pi. 23; 6 Edw. IV. (»,) Pp. 376, 377, above. 8, pi. 18, seems to extend the justi- (o) 21 Edw. IV. 76 b, pi. 9. ficatior. to entry to retake gooda 400 WRONGS TO POSSESSION AND PROPEETY. the law, and he doth abuse it, he shall be a trespasser ah 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 (p) ; 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 (g), 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- aU night; or if the commoner cuts down a tree; in these and the like cases the law adjudges that he entered for that purpose, and because the act which demonstrates it is a trespass, he shall be a trespasser ah initio " (r). Or to state it less artificially, the effect of an authority given by law 'without the owner's consent is to protect the person exer- cising that authority from being dealt with as a trespasser so long — but so long only — as the authority is not abused. He is never doing a fully lawful aot: lie is rather an excusable trespasser, and becomes a trespasser without excuse if he exceeds his authority (s): " It shall be adjudged against the peace " {t). This doctrine has been applied in modern times (p) Tliis is in respect of the feasant are still under the common public eharactelr of the inn- law. keeper's employment. (r) The Six Carpeniers' Case, 8 {q) The liability of a distrainor Go. Rep. 14C a, b. It would seem for rent justly due, in respect of that the rule, being founded on a any subsequent irregularity, was pre-umption of intent from subse- reduced to the real amount of quent conduct, was at first only a damage by 11 Geo. II. c. 19, rule of evidence, see per Holmes J. s. 19: but this does not apply in Commonwealth v. Subiu (189C) to a. case where the distress was 1C5 Mass. 453, 455. wholly unlawful: Attack v. Bram- (s) Cp. Pollock and Wright on well (1863) 3 B. & S. 620, 32 L. J. Possession, 144, 201. Q. B. 146. Distrainors for damage (t) 11 Hen. IV. 75, pi. 16. TRESPASS AB INITIO. 401 to the lord of the manor taking an estray (h), and to a sheriff remaining in a house in possession of goods taken in execu- tion for ian unreasonably long time {x). 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 (?/) or deliver up a distress upon a proper tender of the rent due (z). "If I dis- train 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 1 kiU them or work them in mj" own plow, he shall have an action of trespass " (a). But it is to be observed that retaining legal possession after the expira- tion of authority has been held equivalent to a new taking, and therefore a positive act: hence (it seems) the distinction between the liability of a sheriff, who takes possession of the execution debtor's goods, and of a distrainor; the latter only takes the goods into "the custody of the law," and " the goods being in the custody of the law, the distrainor is under no legal obligation actively to redeliver them " (h). 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 distrainor refusing to give up the goods, there (v) Oxley V. WatU (1785) 1 (c) West v. Nibbs (1847) i T. E.. 12, 1 E. E. 133. C. B. 172, 17 L. J. C. P. 150, 72 (a;) Ash v. Dawnay (1852) 8 Ex. E. E. 575. 237, 22 L. J. Ex. 59, 91 E. R. (a) Littleton in 33 Hen. VI. 466, 8e . Martin (1875) ampton, ij-c. R. Co. (1849) 8 O. B. L. R. 20 Eq. 462, the plaintiffs 25, 18 £>. J. C. P. 330, 79 R. R. were in possession of part of the 388. land affected. ( 405 ) CHAPTEE X. NUISANCE. Xdisance is the wrong done to a man by unlawfully dis- turbing him in the enjoyment of his property or, in some c-ases, in the exercise of a common right. The wrong is in some respects analogous to trespass, and the two may coincide, some kinds of nuisance being also continuing tres- passes . The scope of nuisance, however, is wider. A nui- sance may be public or priv-ate. Public or common nuisances affect the King's subjects at large, or some considerable j^ortion of them, such as the inhabitants of a town; and the person therein offending is liable to criminal prosecution (a). A public nuisance docs not necessarily create a civil cause of action for anj^ person ; but it may do so under certain conditions. A private nui- sance affects only one person or a determinate number of persons, and is the ground of civil proceedings only. Gene- rally it affects the control, use, or enjoyment of immovable property; but this is not a necessary element according to the modern view of the law. Certainly the owner or master of a ship lying in harbour, for example, might be entitled to complain of a nuisance created by an occupier on the wharf or shore which made the ship uninhabitable. (a) There was forraerly a man- Bench Division still has in theory datory writ for the abatement of jurisdiction to grant such writa pubUe nuisances in cities and cor- (as distinct from the common porate towns and boroughs. See judgment on an indictment) ; ree' the curious precedent in F. N. B. Eussell on Crimes, i. 440. 185 D. Apparently the King's 406 NUISANCE. We shall first consider in what cases a common nuisazioe exposes the person answerable for it to civil as well as criminal process, in other words, is actionable as well as indiotable. " A common nuisance is aji unlawful act or omission to discharge a legal duty, which act or omission endangfers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all her Majesty's subjects " (&). Omission to repair a highway, or the plac- ing of obstructions in a highway or public navigable river, is a familiar example. In order to sustain an indictment for nuisance it is enough to show that the exercise of a common right of the King's subjects has been sensibly interfered with. It is no answer to say that the state of things causing the obstruction is in some other way a 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 ordinary traffic, although the people who use the cars and save money and time by them may be greater in number than those who are obstructed in their use of the highway in the manner formerly accustomed (c) . It is also not material whether the obstruction 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, {b'j Criminal Code (Indictable s. 268. Offences) Bill, 1879 (as amended (. Train (1862) 2 B. & in Committee), s. 150; cp. S. 640, 31 L. J. JM. 0. 169, 127 Stephen, Dig'est of Criminal Law, E. E. 513. Modern tramways and art. 176, and illustrationa thereto, lig-ht railways have been mad© and the Indian Penal Code, under statutory authority. PUBLIC NUISANCK. 407 or otherwise leaves room enough for the ordinary amount of! traiHc {d). Further discussion and illustration of what amounts to an indictable nuisance must be sought in works on the criminal law. A private action cun be maintained in respect of a pubUo nuisance by a person who suffers thereby some particular loss or damage beyond what is suffered by him in common with all other persons affected by the nuisance. Interference with a common right is not of itself a cause of action for the individual citizen. Particular damage (e) consequent on the interference is. If a man digs a trench across a highway, I cannot sue him simply because the trench j)revents 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 \vhich I am carrying arc 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 wliich constitutes that nuisance (/). If a trader is conveying his goods in barges along a navigable (cT) Turner v. Ringwood High- obscure): per Fitzherbert, a man leay Board (1870) L. E. 9 Eq. 418. shall have his action for a public («) '■ Particular damage " and niusance if he is more incom- " special damage" are used in- moded than others. "If one differentlj- in th« authorities; the make a ditch across the high former seems preferable, for road, and I come riding along the " special damage," as we have road at night, and I and my horse seen, lias another technical mesvn- are thrown in the ditch so that I ing in the law of defamation. Iiave thereby great damage and CJ) Y. B. 27 Hen. VIII. 27, annoyance, I shall have my action pi. 10. Action for stopping a against him who made this ditch, highway, whereby it seems the because I am more damaged than plaintiff was deprived of the use any other man." Held that sufS- of his own private way abutting cient particular damage was laid, thereon (the statement is rather 408 NUISANCE. river, and by reason of the navigation being unlawfully obstructed has to unload his merchandise and carry it over- land at an increased expense, this is a particular damage which gives him a right of action {g). Though it is a sort of consequence likely to ensue in many individual cases, yet in every case it is a distinct and specific one. Where this test fails, there can be no particular damage in a legal sense. If the same man is at divers times delayed by the same obstruction, and incurs expense in removing it, this is not of itself sufficient particular damage; the damage, though real, is " common to all who might wish, by re- moving the obstruction, to raise the question of the right of the public to use the way " (h). The diversion of traffic or custom from a onan's door by an obstruction of a highway, whereby his business is interrupted, and his profits dimin- ished, 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 busiuess more than other men's, and amounts to something like blocking up his doorway (fe). Whether a given case falls under the rule or the exception must depend on the facts of that case: and what is the true principle, and (g) Rose v. Miles (1815) 4 M. remarks of Lord Chelmsford and i: S. 101, 16 R. R. 405, and in Lord Cranworth. Probably this Bigelow L. C. 460. would not be accepted in other {h) Winierbottom v. Lord J""^ctions where the conunon Derby (1867) L. E. 2 Ex. 316, ^'''^' '" received. In Massachusetts, 322 36 L J Ex 194 ^* least, Wilkes v. Ilungerford Market Co. was adopted by the (i) Iticlcet V. Metrop. S. Co. Sapieme Court in a very full and (1867) L. E. 2 H. L. at pp. 188, careful judgment: Stetson v. 199. See the comments of Willes p^,.^^^ (-1837) 19 Pick. 147. J. in Beckett v. Midland II. Co. (1867) L. E. 3 C. P. at p. 100, {k) Frits v. Uobson (1880) 14 where Wilkes v. Ilungerford Ch. D. 542, 49 L. J. Ch. 321; Market Co. (1835) 2 Bing. N. C. Barber v. Penley [1893] 2 Ch. 447, 281 is treated as overruled by the 62 L. J. Ch. 623. PARTICIXAK DAMAGE. 409 what the extent of the exception, is open to some question (I). Loss of expected profit from letting window-space has been admitted as special damage where the defendant corpora- tion, being the local authority, had set up a stand of its own to view a procession, which stand shut out the prospect from the plaintiff's windows and was a public nuisance to the highway (m). 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 people in it are annoyed by bad smells, this damage is sufficiently " particular, direct, and substan- tial " to entitle the occupier to maintain an action (w). 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 narrowing rights of way and flooding 1^1) In Fritz v. Sobsoti (last note) Fry J. did not lay down any general proposition. How far the principle of Lyon v. Fish- monf/er!>' Companij (1876) 1 App. Ca. 662, 46 L. J. Ch. 68, is really consistent with Ricket v. Metrop. R. Co. is a problem that can be finally solved only by the House of Lrords itself. According: to Lyon v. Fishmongers' Company it should seem that blocking the access to ii street is (if not justi- fied) a violation of the distinct private right of every occupier in the street: and such rights are not the less private and distinct because they may be many; see Ilarrop v. Hirst (1868) L. R. 4 Ex. 43, 38 Li. J. Ex. 1. In this view it is difficult to see that loss of custom ia otliorwiso than a natural and probable consequence of the wrong. And cp. the case in 27 Hen. VIII. cited above, p. 407. In RicJcet's ca^e Lord Westbury strongly dis- sented from the majority of the; Lords piesent; L. R. 2 H. L. at p. 200. ()re) Campbell v. Faddington Corporation [1911] 1 K. B. 869, 80 L. J. K. B. 739. .Apparently an extraordinary casual profit of this kind has to be distinguished from ordinary custom. («) Benjamin v. Storr (1874) L. R. 9 C. P. 400, 43 L. J. C. P. 162. Compare further, as to damage from unreasonable user of a highway, Sarris v. Mobbs' (1878) 3 Ex. D. 268; Wilkins v. Day (1883) 12 Q. B. D. 110. A theatre queue may be an action- able nuisance to an adjacent occupier: Lyons, Sons S; Co. v. Gulliver [1914] 1 Ch. 631, 83 L. J. Ch. 281, where the Court was divided on the facts. 410 NUISANCE. land by the divei'sion of watercourses appear to have been the chief species (o). In the modern authorities it includes all injuries to an owner or occupier in the enjoj^ment of the property of which he is in possession, without regard to the quality of the tenure (p). Blackstone's phrase is "any- thing done to the hurt or annoyance of the land, tenements, or hereditaments of another "_(g) — that is, so done without any lawful ground of justification or excuse. The ways in which this may happen are indefinite in number, but fall for practical purposes into certain well recognized classes. Some acts are nuisances, according to the old authorities and the course of procedure on which they were founded, which invobe such direct interference with the rights of a possessor as to be also trespasses, or hardly distinguishable from trespasses. "A man shall have an assize of nuisance for building a house higher than his house, and so near his, that the rain which faUeth upon that house falleth upon the plaintiff's house " (r). And it is an actionable nuisance if a tree growing on my land, overhangs the public road or my neighbour's land (s). 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 gene- rally, though not necessarily (t), 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 (o) F. N. B. "Writ of Assize \. Nelson (1823) 2 B. & C. 302, of Nuisance," 183 I. sqg. 311, 26 R. E. 363, 370; Smith v. (p) See per Jessel M. E. in Giddy [1904] 2 K. B. 448, 73 L. J. Jonec V. C/iappel! (1875) L. E. K. B. 894. 20 Eq. at p. 543. (t) Fay v. Prentice, note ()•) (ff) Comm. iii. 216. where the Ck)urt was astute to sup- (r) 17. N. B. 184 D.; Peni-'id- port the declaration after verdict. dock's ca. 5 Ck). Eep. 100 b; Fay The overhanging of brandies, or V. Prentice (1845) 1 C. B. 828, growing of roots into a neighbour's 14 L. J. C. P. 298, 68 E. E. S?3. soil, is not a trespass, see p. 353, (s) Best J. in Earl of Zonsdale above. CLASSES OB-' NUISANCES. 411 Avas a greater variety and choice of remedies than for ordinary trespasses. Therefore it is in such a case needless to inquire, except for the assessment of damages, whether there is anything like nuisance in the popular sense. Still there is a real distinction between trespass and nuisance even when they are combined: the cause of action in trespass is interference with the right of a possessor in itself, while in nuisance it is the incommodity which is proved in fact to be the consequence, or is presumed by the law to be the natural 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(M). 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 " {x). In modern times the most frequent and important examples of this class are cases of interference with rights to light. Here the right itself is a right not of dominion, but of use; and there- fore no WT^ong is done (?/) unless and until there is a sensible interference with its enjoyment, as we shall see hereafter. But there may be an actionable nuisance without any imme- diate harm or loss. It is enough that a legal right of ubb and enjoyment is interfered with by conduct which, if persisted in without protest, would furnish evidence in derogation of the right itself (2). (m) Batens ca. 9 Co. Eep. 53 h. (y) Otherwise as to public ways: {x) F. N. B. 185 B. It is ao- see Turner \. llingwood Highway tionable to create a permanent Board (1870) L. E. 9 Eq. 418. obstruction to an occupier's access («) Tliia is especially applicable from the adjacent highway to his Tyhere the right belongs to a class own outer wall: Cohh v. Saxby of persons: Harrop v. Hirst (1868} [1914] 3 K. B. 822, 83 L. J. K. B. L. R. 4 Ex. 43, 38 L. J. Ex. 1. 1817. 412 NUISANCE. A third kind, and that which is most commonly spoken of by the technical name, is the continuous doing of some- thing which interferes with another's health or comfort in the occupation of his property, such as carrying on a noisy or offensive trade. Continuity is a material factor: merely temporary inconvenience caused to a neighbour by " the execution of lawful works in the ordinary user of land " is not a nuisance {a). What amount of annoyance or inconvenience wiU amount to a nuisance in point of law cannot, by the nature of the question, be defined in precise terms (&). Attempts have been made to set more or less arbitrary limits to the jurisdiction of the Court, especially in cases of miscellaneous nuisance, as we may call them, but they have failed in every direction. Where nuisance is once proved, the de- fendant's intention is not material; but a proved intention to annoy the plaintiff may be relevant to show that the defendant is not using his property in an ordinary and legitimate way such as good neighbours mutually tolerate, and it wiU naturally set the Court against him in all matters of discretion (c). As to the several classes of i?acts usually considered in cases of nuisance: — (a)- It is not necessary to constitute a private nuisance that the acts or state of things complained of should be noxious in the sense of being injurious to health. It is enough that there is a material interference with the ordinary comfort and convenience of life — " the physical comfort of human existence " — by an ordinary and reason- (b) Harrison v. Southwark ^ tortious ' nuisance, see Tod-Heatly Vauxhall Water Co. [1891] 2 Ch. v. Benham (1888) 40 Oil. Div. 80, 409, 60 L. J. Ch. 630. 68 L. J. Oh. 83. (6) As to the construction of (c) See Christie v. Bavey [1893] "nuisance" in a covenant, which 1 Oh. 316, 326, 62 L. J. Ch. 439. it seems need not be confined to WHAT AMOUNTS TO NUISANCE. 413 able standard («?); there must be something more than mere loss of amenity (e), but there need not be positive hurt or disease. (b) In ascertaining' whether the property of the plaintiff is in fact injured, or his comfort or convenience in fact materially interfered with, by an alleged nuisance, regard is had to the character of the neighbourhood and the pre- existing circumstances, (/) . 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. E\'en if there was already a nuisance, or what would be a nuisance in a different kind of neighbourhood, that is not a reason why the defendant should set up an additional nuisance (gr) . He is not entitled to inflict on the plaintiff a substantial amount of discomfort in excess of what is already tolerated by local usage under the existing conditions (h) . 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 prescriptive right to continue it in all events might be acquired under cover of the other nuisances: therefore it must be wrongful from the first («'). (d) Walter v. Selfe, 4 De G. & 35 L. J. Q. B. 66, 145 E. R. 348; Sm. 315, 321, 322, 20 L. J. Ch. Sturges v. Bridgman (1879) 11 Ch. 433, 87 E. E. 393, a£Bd. on appeal, Div. at p. 865. 19 L. T. 308, 87 E. E. 401 (s-) Walter >. Selfe, note (rf) (Knight Bruce V.-C. 1851); above. Crump V. Lambert (1867) L. R. (/() Rvshmer \. Polsue [1906] 1 3 Eq. 409. Ch. 234, 75 L. J. Ch. 79, C. A. (e) Salvin v. North Brancepeth (i) Crossle;/ v. Lightowler (1867) Coal Co. (1874) L. R. 9 Ch. 705, L. E. 2 Ch. 478, 36 L. .T. Ch. 584. 44 I>. J. Ch. 149; see judgment The same point was (among others) of James L. J., L. E. 9 Ch. at decided many years earlier (1849) pp. 709, 710. ill Wood v. Wand, 3 Ex. 748, 18 (/) St. Helen's Smelting Co. v. L. J. Ex. 305, 77 R. R. 809. Tipping (1865) 11 H. L. C. 642, 414 NUISANCE. 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 (k) ; but this has long ceased to be law as regards both the remedy by damages (Z) and the remedy by injunction (m). The de- fendant may in some cases justify by prescription, or the plaintiff be barred of the most effectual remedies by acquiescence. But these are distinct and special grounds of defence, and if relied on must be fully made out by appropriate proof. Further, the wrong and the right of action begin only when the nuisance begins. Therefore if Peter has for many years carried on a noisy business on his own land, and his neighbour John makes a new building on his own adjoining land, in the occupation whereof he finds the noise, vibration, or the like, caused by Peter's business to be a nuisance, Peter cannot justify continuing his operations as against John by showing that before John's building was occupied John or his predecessors in title made no complaint (n). (c) Again, a nuisance is not justified by showing that the trade or occupation causing the annoyance is, apart from that annoyance, an innocent or laudable one. " The building of a lime-kiln is good and profitable; but if it be built so near a house that when it burns the smoke thereof enters into the house, so that none can dwell there, an action lies for it" (o). "A tan-house is necessary, for all men wear (A) Blackatone ii. 403. same facts; Fleming v. Hislop (I) E.g. St. Helen's Smelting Co. (1886) 11 App. Ca. (So.) 686, 688, -V. Tipping (1865) 11 H. L. C. 697. '642, 35 L. J. Q. B. 66, 145 R. E. («) Sturges v. Bridgman (1879) 348. 11 Ch. Div. 852, 48 L. J. Ch. 875. ()h) Tipping V. St. Helen's (o) Aldred's ca. (1610) 9 Co. Smelting Co. (1865) L. R. 1 Ch. Rep. 59 a. ■66, a suit for injunction on the WHAT AMOUNTS TO NUISANCE. 415 shoes; and nevertheless it may be pulled down if it be erected to the nuisance of another. In like manner of a glass-house; and they ought to be erected in places con- venient for them" {p). So of a fried fish shop (q). So it is an actionable nuisance to keep a pigstye so near my neigh- bour's house as to make it unwholesome and unfit for habita- tion, though the keeping of swine may be needful for the sustenance of man (;•). ^lerchants and tradesmen cannot load and unload their goods in a town without some tem- porary obstruction of the highway, but it is a nuisance if such use of the highway is so extensive and constant as to amount to an appropriation of the highway to the trader's own purposes (s). (d) Where the nuisance complained of consists wholly or chiefly in damage to property, such damage must be proved as is of appreciable magnitude and apparent to persons of common intelligence; not something discoverable only by scientific tests {t). And acts in themselves lawful and in- noxious 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 ordinary enjoyment of life {ti). But where material damage in this (p) Jones V. Powell, Palm. 539, /ei/ (note (jo)) and not to lay down approved and explained by Ex. Ch. anything new, see A.-G. v. Cole ^ in Bamford v. Turnley (1862) 3 B. Son [1901] 1 Ch. 205, 70 L. J. Ch. k. S. 66, 31 L. J. Q. B. 286, 129 148. K. E. 234. As to " convenient," (s) A.-G. v. Brighton and Hove see next paragraph. Co-op. Supply Association [1900] (^) Adams v. Ussell [1913] 1 1 Ch. 276, 69 L. J. Ch. 204, C. A. Ch. 269, 82 L. J. Ch. 157. (C) Salvin v. yoHh Brancepeth (;•) Aldred's ca. note fo). Cp. Coal Co. (1874) L. E. 9 Ch. 705, Broder v. Saillard (1876) 2 Ch. D. 44 L. J Ch. 149. 692, 701 (JcsseL il. E.), 45 L. J. ((0 Robinson v. Kilvert (1889) Ch. 414, followed in lieinhanU v. 41 Ch. Div. 88, 58 L. J. Ch. 392; Mentasti (1889) 42 Ch. D. 685, 58 Van-en v. Bron-n [1900] 2 Q. B. L. J. Ch. 787, which was also in- 722, 69 L. .J. Q. B. 842, judgment Xendelto ioWo-w Bamford \. Ttirn- of Wrio-lu .J. reversed in C. A. 416 NaiSANCE. sense is proved, or material discomfort according to a sober and reasonable standard o£ comfort, it is no answer to say that the offending work or manufacture is carried on at a place in itself proper and convenient for the purpose. A right to do something that otherwise would be a nuisance may be established by prescription, but nothing less will serve. Or in other words a place is not in the sense of the law convenient for me to burn bricks in, or smelt copper, or carry on che'mical works, if that use of the place is con- venient to myself but creates a nuisance to my neighbour (x). (e) No particular combination of sources of annoyance is necessary to constitute a nuisance, nor are the possible sources of annoyance exhaustively defined by any rule of law. " Smoke, unaccompanied with noise or noxious vapour, noise alone, offensive vapours alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighbouring property " (?/). The persistent ringing and toUing of large bells {z), the loud music, shout- ing, and other noises attending the performances of a, [1902] 1 K. B. 15, 71 L. J. K. B. 104, 134 R. R. 610. These autho- 12, but in effect restored by the rities overrule Jlole \ . Barloio^ House of Lords in Colls v. Home 0858) 4 0. B. N. S. 334, 27 L. J. and ColonM Stores [1904] A. C. C. P. 207: sec Shotts Iron Co. v. 179, 73 L. J. Ch. 484. The ordi- Inglis (1882) 7 App. Ca. (Sc.) at nary enjoyment of life, however, p. 528. seems to include the maintenance (y) Romilly M. R., Crump v. of a due temperature in one's wine Lambert (1867) L. R. 3 Eq. at cellar: Reinhardt v. Mentasti p. 412. (1889) 42 Ch. D. 685, 58 I>. J. Ch. (z) Soltau ^ . Be Held (1851) 2' 787. Sim. N. S. 133, 89 R. R. 245. Qc) Si. Helen's SmeUing Co. \. The bells belonged to a Roman Tipping (1865) 11 H. L. C. 642, Catholic church: the judgment 35 L. J. Q. B. 66, Bigelow L. C. points out (at p. 160) that such a 454, 145 R. R. 348; Bamford v. building is not a church in the eye Tvrnley (1862) Ex. Oh. 3 B. & S. of the law, and cannot claim the- 66, 31 L. J. Q. B. 286, 129 R. R. same privileges as a parish ehurck 234; Caveu v. Ledbifter (1862-3) in respect of bell-ringing. 13 0. B. N. S. 470, 32 L. J. C. P. WHAT AMOUNTS TO NUISANCE. 417 circus (a), the collection of a crowd of disorderlj- people by a noisy entertainment of music und fireworks (&), to the grave annoyance of dwellers in the neiglibourhood, ha-\'e all been held to be nuisances and restrained by the authority of the Court. The use of a dwelling-house in a street of dwelling- houses, in an ordinary and accustomed manner, is not a nuisance though it may produce more or less noise and incon- venience to a neighbour. But the conversion of part of a house to an unusual purpose, or the simple maintenance of an arrangement which offends neighbours by noise or otherwise to an unusual and excessive extent, may be an actionable nuisance. Many houses have stables attached to them, but the man who turns the whole ground floor of a London house into a stable, or otherwise keeps a stable so near a neighbour's living rooms that the inhabitants are disturbed all night (even though he has done nothing beyond using the arrangements of the house as he found them), does so at his own risk (c). " In making out a case of nuisance of this character, there are always two things to be considered, the right of the plaintiff, and the right of the defendant. If the houses adjoining each other are so built that from the commence- ment 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 aU the -different parts of it were constructed, then so long as the house is so used (a) Inchbald v. Barringtcm L. E. 5 Eq. 24, 37 L. J. Oh. 33. (1869) L. E. 4 Oh. 388: the circus It was not decided whether the was eighty-five yards from the noise would alone have been a nui- plaintifl's house, and "throughout sauce, but Wickens V.-C. strongly tlie performance tliere was music, inclined to think it would, see including a trombone and other L. E. 5 Eq. at p. 3-t. wind instruments and a vio'oncello, (e) HaV \. Rnij (1873) L. R. and great noise, with shouting and 8 Ch. 467: Broder v. SaiUarif cracking of whips." (1876) 2 Ch. D. 692, 45 L. ,T. Ch. (6) Walkei- v. Brewster (1867) 414. P. 27 418 NUISANCE. there is nothing that can be regarded in law as a nuisano© 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 his neighbour, showing substantial injury, is entitled to protection " (d). (f) Where a distinct private right is infringed, though it be only a right enjoyed in common with other persons, it is immaterial that the plaintiff suffered no specific injury beyond those other persons, or no specific injury at all. Thus any one commoner can sue a stranger who lets his cattle depasture the common (e); and any one of a number of inhabitants entitled by local custom to a particular water supply can sue a neighbour who obstructs that supply (/). It should seem from the ratio decidendi of the House of Lords in Lyon v. Fishmongers' Company {g) 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 (Ji). (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 inoonveniemae, which a person entitled to the use of the way has a right to (rf) Lord Selbonie L. C, L. E. 4 Ex. 43, 38 L. J. Ex. 1. 8 Ch. at p. 469. (y) 1 App. Ca. 662. (e) Notes to Mellor v. Spate- (h) Fritz v. Jlob»on (1880) 14 man, 1 Wms. Saund. 626. Ch. D. 542, 49 L. J. Ch. 321, (/) Ilarrop v. Hirst (1868) L. R. supra, pp. 408, 409. OBSTRUCTION OF LIGHTS. 419 prevent; and it is no defemce to any one person among the hundred to say that what he does causes of itself no damage to the complainant " (*). But this does not mean that a plaintiff may make two or more independent wrong-doers oo-defendants in a single action for damages, whatever the jule may be where only an injunction is claimed (k). Those who create a nuisance by their own acts are none the less liable because the nuisance would have been obviated or removed if other parties, such as local authorities, had .thought fit. to exercise their powers in that behalf {I). A species of nuisance which has become prominent in modern law, by reason of the increased closeness and height of buildings in towns, is the obstruction of light: ■often the phrase " light and air " is used, but the addition is useless if not misleading, inasmuch as a right to the access of air over a neighbour's land (otherwise than in some definite direction to some particular place) (to) is not known to the law as a subject of property (w). (/) I'/mrpe v. Brumfift (1873) to this extent, though the House of L. K. 8 Oh. 650, 656, per James Lords was prepared to reverse the L. J., followed by Chitty J. in decision on the somewhat peculiar Lambton \. Mellish [1894] 3 Ch. facts of the case. After argument 163, 63 L. J. Ch. 929 (a case of in H. L. the parties came to terms nuisance by noise). and the appeal was withdrawn by (/c) Sadler v. G. W. R. Co. consent, [1897] A. C. 155. [1895] 2 Q. B. 688, 65 L. J. Q. B. {n) City of London Brewery Co. 26, affirmed in H. L. [1896] A. 0. v. Tennant (1873) L. R. 9 Oh. at 450, 65 L. J. Q. B. 462. Qu. as p. 221; Webb v. Bird (1862) Ex. to the rule in Scottish procedure, Oh. 13 C. B. N. S. 841, 31 L. J. per Lord Shand [1896] A. O. at 0. P. 335, 134 R. R. 756; Bryant p. 455. V. Zefever (1879) 4 O. P. Div. 172, (Z) Offston V. Aberdeen District especially per Cotton L. J. at Tramways Co. [1897] A. C. 110. p. 180, 48 L. J. Oh. 380; Harris (m) Chasley v. AcMand [1895] v. De Pinna (1886) 33 Oh. Div. 2 Ch. 389, 64 L. J. Q. B. 523, 238, per Chitty J. at p. 250, and 0. A., may probably be taken as Cotton L. J. at p. 259. As to im- . correctly stating the general law plied grant of such rights by an 27(2) 420 NUISANCE. 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 forty years or thereabouts. The right to light, to begin with, is not a natural right incident to the ownership of windows, but an easement to- which title must be shown by grant (o), 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 (p), without taking away any mode which existed at common law (g). 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 (r). It cannot be adjacent owner, Cable v. Brijant [1908] 1 Ch. 259, 77 L. J. Cli. 78. A personal right to access of air can of course be created as between parties, if they olioose, by way of covenant. (o) Notwitlistanding the doubis expressed by Littledale J. in Moore v. Bawson (1824) 3 B. & 0. at p. 340, 27 E. R. 382; see per Lord Selborne, Balton v. Angus (1881) 6 App. Ca. at p. 794, and Lord BlaAburn, ib. 823, and the judgments and opinions in that case passim as to the peculiar char- acter oi" negative easements. The doctrine of ancient lights is not received in America, and "is abso- lutely repugnant to the law of Scotland ": (1912) S. C. 909—10. (p) KeUc V. Pearson. (1871) L. R. C Ch. at pp. 811, 813, cf. L. R. 9 Ch. 219, approved in H. L., Colls V. Home and Colonial Stores [19U4] A. C. 179, 73 L. J. Ch. 484. As to the acquirement of right to light as between different lessees under a common lessor, Fear v. Morgan [3906] 2 Ch. 406, 75 L. J. Ch. 787, C. A. As to persistence of the easement notwithstanding unity of estate where there is no unity of possession and enjoyment, Richardson >. Graham [1908] 1 K. B. 39, 77L. J. K. B. 27, C. A. As to the necessity of continuous enjoyment " next before " action. Ml/man. \ . Van den Bergh [1907] 2 Ch. 516, 76 L. J. Ch. 554, in C. A. [1908] 1 Ch. 167. {q)'Aynsley v. Glover (1875) L. R. 10 Ch. 283, 44 L. J. Ch. 523. Since the Prescription Act, however, the formerly accustomed method of claiming under the fic- tion of a lost grant can be seldom, if ever, useful: see Hyman V. Van den Bergh, last note. (i-) See Potts V. Smith (1868) L. R. 6 Eq. 311, 318, 38 L. J. OBSTRUCTION OK LIGHTS. 421 claimed in respect of light passing through a doorway or other opening not primarily intended to admit light (s). 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 comfoi-table or beneficial use or enjoyment in its existing condition; if a dweUing-house, for ordinary habita- tion; if a warehouse or shop, for the conduct of business {t). The action is for nuisance and not for the infringement of a right to a specific quantity of light. " There must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business ... on the premises, as beneficially as he had formerly done " (it). Decisions and dicta which laid down, or seemed to lay down, that the right acquired is to all the light, or what has been called an average maximum of the light, coming- through a particular window, are now not to be relied on (v). It seems that a right to a special or extraordinary Ch. 58. As to what i3 a building (f) Such are Soott v. Pape within the Act, Clifford v. Salt (1886) 31 Ch. Div. 554, 55 L. J. [1899] 1 Ch. 698, 68 L. J. Oh. 332. Ch. 246; Lazarus v. Artistic Photo- (s) Levet v. Gas Light # Coke graphic Co. [1897] 2 Oh. 214, 66 Co. [1919] 1 Ch. 24, 88 L. J. Ch. L. J. Ch. 522; Warren v. Brown 12. [1902] 1 K. B. 15, 71 L. J. K. B. (t) Kelk V. Pearson (1871) L. E. 12, and, it seems, Moore v. Hall 6 Oh. 809, 811; City of London (1878) 3 Q. B. D. 178, 47 L. J. Brewery Co. v. Tennant (1873) Q. B. 334. We may not now talk L. R. 9 Ch. at p. 216, 43 L. J. Oh. of a quasi-property in '' cones " or 457; Colls v. Home and Colwiial " pencils " of light : Davis v. Mar- Stores [1904] A. O. 179, 73 L. J. rable [1913] 2 Ch. 421, 82 L. J. Ch. 484, H. L., reversing s. u. in Ch. 510. Yates v. Jack (1866) C. A. [1902] 1 Ch. 302, 71 L. J. L- R- 1 Ch. 295, is good law, but Q}j i4g. the form of injunction there given («) Ruling' of Best 0. J. in Back has beep, too slavishly followed, V. Stacey (1826) 2 C. & P. 465, 31 and the head-note seems too wide. E. R. 679, approved in H. L. in Lanfranchi v. Mackenzie (1867) Colls's Case (last note). L- R. 4 Eq. 421, 36 L. J. Ch. 518, 422 NUISANCE. amount of light cannot be acquired under the Prescription Act by 20 years' user even with knowledge on the part of the servient tenement (x). At one time 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 (y), 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. The supposed rule was repudiated long ago by' the Court of Appeal (z). But the statutory regulation, though it does not afford a fixed rule for dealing with private titles, may be used as a rough working test (a). An existing right to light is not lost by enlarging, re- building, or altering (&) the windows for which access of ia relieved from the criticisms (k) Ambler v. Gordon [1905] 1 passed on it in judgments tlow K. B. 417, 74 L. J. K. B. 185. disapproved. See Colls v. Home Qy) 25 & 26 Vict. c. 102, s. 85. and Colonial Stores [1904] A. C. (z) Parker v. First Avenue 179, 73 L. J. Ch. 484, which is Hotel Co. (1883) 24 Ch. Div. 282; now the leading- case on the right Ecclesiastical Commissioners \ . to light. As to the application Kino (1880) 14 Ch. Div. 213, 49 of the principles there laid down, L. J. Ch. 529. Jolbj >. Kine [1907] A. C. 1, 76 (a) Judgment of Lord Davey in L. J. Ch. 1, further explained in Colls's Case. Paul V. Jiolison [1914] 41 Ind. (6) Tabling v. Jones (1865) 11 App. 180; Litchfield-Speer v. H. L. 0. 290, 34 L. J. O. P. Queen Anne's Gate Syndicate 342, 145 R. E,. 192; Aynsley v. [1919] 1 Cli. 407, 88 L. J. Ch. Glover (1874-5) L. R. 18 Eq. 544, 137 (jurisdiction to restrain threat- 43 L. J. Ch. 777, L. E. 10 Cfli. ened obstruction not abrogated). 283, 44 L. J. Ch. 523; Mcclesias- As to the measure of damages tioal Commissioners v. Kino (1880) where the plaintifl! occupies a con- 14 Ch. Div. 213; Greetitoood v. tinuous building site, Griffith v. Hornsey (1886) 33 Ch. D. 471, Pichard Clay and Sons [1912] 1 55 L. J. Ch. 917. It is not neoes- Ch. 291. sary to prove an intention of pre- OBSTRUCTION OF LIGHTS. 423 light is claimed. So long as the ancient lights, or a sub- stantial part thereof (c), remain substantially capable of continuous enjoyment (d), so long the existing right con- tinues and is protected by the same remedies (e). And aji existing right to light is not lost by interruption which is not continuous in time and quantity but temporar}- and of fluctuating amount (/). It makes no difference that the owner of a servient tene- ment may, by the situation and arrangement of the buildings, be unable to prevent a right being acquired in respect of the new light otherwise than bj obstructing the old light also (g). 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 eerving the ajicient lights: Smith V. Baxter [1900] 2 Ch. 138, 69 L. J. Ch. 437. (c) Neivson v. Fender (1884) 27 Ch. Div. 43, 61. It is not neces- sary that the " structural id'Cntity " of the old windows should be pre- served: National Prorincial Plate Gl-ass Insurance Co. \. Prudential Assurance Co. (1877) 6 Ch. D. 757, 46 L. J. Ch. 871; Andrews v. Waite [1907] 2 Ch. 500, showing also that the same principles apply- to alterations during the currency of the statutory period for acquir- ing the right. But there must at all events be a definite .mode of accese: BarrU v. Be Pinna (1886) 33 Ch. Div. 238, 56 L. J. Oh. 344. ((f) The alteration or rebuilding must be continuous enough to show that the right is not abandoned; see Moore v. Rawscm (1824) 3 B. & C. 332, 27 E. R. 375. All the local circumstances will be considered: Pullers V. Dickinson (1885) 29 Ch. D. 155, 54 L. J. Ch. 776. There must be some specific identification of the old light as coincident with the new: Pendarves v. Monro [1892] 1 Ch. 611, 61 L. J. Oh. 494. (e) Staighf v. Burn (1869) L. R. 5 Ch. per Giffard L. J. at p. 167. But only the existing right: an obstruction that would not have been actionable before the altera- tions does not become so aftesr- wi.rds because they have made it more inconvenient: Anherson v. Connelly [1907] 1 Oh. 678, 76 L. J. Oh. 402, O. A. See further W II. Bailey ^- Son v. Ilolborn and Frascati [1914] 1 Ch. 598, 83 L. J. Ch. 515'i (/) Presland v. Bin-Qham (1889) 41 Ch. Div. 268. (r?) Tapling v. Jonei (1865) 11 H. L,. C. 290, 34 L. .J. 0. P. 342, 145 R. R. 192. 424 NUISANCE. neighbour may open lights overlooking his land), but he must do it so as not to interfere with lights in respect of which a right has been acquired. Disturbing the private franchise of a market or a ferry, is commonly reckoned a species of nuisance in our books (h). But this classification seems rather to depend on accidents of procedure than on any substantial resemblance between interference with peculiar rights of this kind and such in- juries to the enjoyment of common rights of property as we have been considering. The quasi-proprietary right to a market or ferry is of such a nature that the kind of dis- turbance called " nuisance " in the old books is the only way in which it can be violated at all. If disturbing a market is a nuisance, an infringement of copyright must be a nuisance too, unless the term is to be conventionally restricted to the violation of rights not depending on any statute. The remedies for nuisance are threefold: abatement, damages, and injunction: ef which the first is by the act of the party aggrieved, the others by process of law. Damages are recoverable in all cases where nuisance is proved, but in many cases are not an adequate remedy. The more stringent remedy by injunction is available in such cases, and often takes the place of abatement where that would be too hazardous a proceeding. The abatement of obstructions to highways, and the like, is stiU of importance as a means of asserting public rights. Private rights which tend to the benefit of the public, or a considerable class of persons, such as rights of common, have also been successfully maintained in the same manner, though not without the addition of judicial proceedings {i). {h) Blaokst. Ck)mm. iii. 218. (1869) L. E. 9 Eq. 1241 (the case of (i) SmilJi V. Earl Brownloio Eerkhamsted Common): Williams ABATEMENT. 425 It is decided that not only walls, fences, and such like encroachments which obstruct rights of common may be removed, but a house wrongfully built on a common may be puUed down by a commoner if it is not removed after notice (fc) within a reasonable time (Z). If another man's tree overhangs my land, I may lawfully cut the overhanging branches (m) ; and in these cases where the nuisance is in the nature of a trespass, and can be abated without entering on another's land, the wrong-doer is not entitled to notice (w). But if the nuisance is on the wrong- doer's own tenement, he ought first to be warned and required to abate it himself (o). 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. * In the case of abating nuisances to a right of common, notice is not strictly necessary unless the encroachment is on Eights of Common, 135. Merely Lane ^. Capsey [1891] 3 Ch. 411. partial exclusion from rights of (>?») Xorris v. Baker, 1 Eolle's common does nofc justify abate- Rep. 393, per Croke; Lonsdale v. ment: Eope v. Osborne [1913] 2 Nelaon (1823) 2 B. & O. 311, 26 Ch. 349, 82 L. J. Ch. 457. R. R. 370, per Best J. (i) Pulling down the house with- (») Lemmon v. Webb [1894] 3 out notice while there are people in Ch. 1, 63 L. J. Ch. 570. The over- it is a trespass: Perry \. Fitzhowe hanging of branches is not an (1845) 8 Q. B. 757, 15 L. J. Q. B. actual trespass, per Lindley L. J. 239; 70 R. R. 626; Jones v. Jones [1894] 3 Ch. at p. 11. It is a (1862) ] H. & C. 1, 31 L. J. Ex. wise precaution to give notice, per 506; following Perry v. Fitzhowe Lopes and Kay L. JJ. The deci- with some doubt. The case of a sion of the C. A. was affirmed in man pulling down buildings H. L. [1895] A. C. 1, 64 L. J. Ch. wrongfully erected on his own land 205. is different: ib.; Burling v. Mead (o) This has always been under- (1850) 11 Q. B. 904, 19 L. J. stood to be the law, and seems to Q. B. 291, 75 R. R. 662. follow a fortiori from the doctrine (?) Bavies v. Willinms (1851) 16 of Perry v. Fitzhowe, note (Ji). Q. B. 546, 20 L. J. Q. B. 330; ep. 426 NUISANCE. a dwelling-ho.use in actual oooupation; but if there is a qiiestior. of right to be tried, the more reasonable course is to give notice (p). The same r.ule seems on principle to be applicable to the obstr.uction 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 •\\'ith 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 common, but they are entitled to consider; the whole of that fence so erected upon the common a nui- sance, and to remove it accordingly " (g). A public local authority having the soil of a highway or the like vested *in it by statute has as incident to its estate the common- law rights of an individual owner to remove obstructions or encroachments, and the existence of special statutory powers, if any, does not derogate from those rights (r). 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 without leaving his own tenement in respect of which he suffers, and perhaps except in cases of urgency such as to make the act necessary for the immediate safety of life or property. It is more than doubtful whether such a right, if it exists, can justify enter- ing on land for the purpose of constructing permanent {p) Per James L. J., Commis- VII. 10, pi. 18. There is a, diver- sioners oj Sezcers v. Glasse (1872) sity where the fence preventing L. R. 7 Ch. at p. 464. access to the common is not on the (?) Bayley J. in Arlett v. Ellis common itself: ibid. (1827) 7 B. & C. 346, 362, 31 R. E. (r) Heimolds v. Vrban IHstrict 214, 219, and earlier authorities Covncil of Presteign\lS^&']l Q.'B. there cited. The Brst is 15 Hen. 604, 65 L. J. Q. B. 400. ABATEMENT. 427 works (s). "Kuisaiices by an act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate tliem without notice to the person who committed them; but there is no decided case which saiictions the abatement by an individual of nuisances from omission, except, that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. . . . The security of lives and property may sometimes require so speedy a retaedy as not to allofw time to call on the person on whose property the mischief has arisen to remedy it. In su,ch cases an individual would be justified in abating a nuisance from omission without notice. In aU 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 " (t). In every case the party taking on himself to abate a nuisance must avoid doing any unnecessary damage, as is shown by the old form of pleading in justification. Thus it is lawful to remove a gate or barrier which 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 par;t lawful and in part unlawful, a party abating that which: is unlawful cannot justify interference with the rest. H© must distinguish them at his peril (m). 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. (s) Campbell Davys v. Lloyd v. Helnon (1823) 2 B. & 0. at p. [1901] 2 Ch. 518, 70 L. J. Ch. 311, 26 R. E. 370. 714, 0. A. (m) Greenslade v. Kalliday (t) Best J. in liarl of Lonsdale (1830) 6 Bing. 379, 53 E. E. 241. 428 NUISANCE. In such a case, therefore, it may be necessary and proper " to abate the nuisance in a manner more onerous to the wrong-doer " (cc). Practically the remedy o'f abatement is now 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. Formerly there were processes of judicial abatement available for freeholders under the writ Quod permittat and the assize of nuisance (t/). 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 {z), the remedies by action on the case at law and by injunction in the Court of Chancery having superseded them. There is not much to be said of the remedy in damages as applicable to this particular class of wrongs. Persistence in a proved nuisance is stated to be a just cause for giving' exemplary damages (a). There is a place for nominal damages in cases where the n,uisance consists merely in the obstruction of a right of legal enjoyment, such as a right of common, which does not cause any specific harm or loss to the plaintiff. At common law damages could not be awarded for any injury received from the continuance of a nuisance since the commencement of the action; for this was a new cause of action for which damages might be separately recovered. But under the present procedure damages in respect of any continuing cause of action are assessed down to the date of the assessment (6). («) Roberts v. Sose (1865) Ex. (z) See note (A) ho Penruddoch's Ch. L. R. 1 Ex. 82, 89, 143 R. R. ca. 5 Co. Rep. 100 b, in ed. Thomas 516. c>c Eraser, 1826. (?/) E. N. B. 124 H., 183 I.; (a) Blackst. Coram, iii. 220. Bateu's ca. 9 Co. Rep. 55 a, (b) Rules of the Supreme Court, T>la';kst. Comm. iii. 221. 1883, Ord. 38, r. 58 (no. 482). INJUNCTIONS. 42i> The most efficient and flexible remedy is that of injunc- tion. Under this form the Court can prevent that from being done which, if done, would cause a nuisance; it can command the destruction of buildings (c) or the cessation of works {d) which violate a neighbour's rights; where there is a disputed question of right between the parties, it can suspend the operations complained of until that question is finally decided (e); and its orders may be either absolute This does not affect the general principles of law as to continuing injury, see Jenks v. Viscount Ciifden [1897] 1 Ch. 694, 66 L. J. Ch. 338. The like power had already been exercised by thelCourt (see Fritz v. Uohson (1880) 14 Ch. D. 542, 557) when damages were given in addition to or in substitu- tion for an injunction under Lord Cairns' Act, 21 & 22 Vict. c. 27. ITiis Act is now repealed by the Statute Law Revision and Civil Procedure Act, 1883, 46 & 47 Vict, c. 49, but the power conferred by it still exists (whether by force of the Judicature Acts or of the saving clause in the Act of 1883), and is applicable in such actions as formerly would have been Chan- cery suits for an injunction; and the result may be to dispense with statutorj' requirements as to notice of action, &o. which would not have applied to such suits: Chapman v. Auckland Union (1889) 23 Q. B. Div. 294, 299, 300, 58 L. J. Q. B. 504. See per Bag- gallay L. J. in Sayers i. Collier (1884) 28 Ch. Div. 103, 107, com- mented on in Re R. [1906] 1 Ch. at pp. 735, 739. The Act did not confer any power to give damages where no actionable wrong had been done, e.g., in a case of merely threatened injury: Dreyfus v. Peruvian fftiano Co. (1889) 43 Ch. Div. 316, 333, 342. Nor does the jurisdiction to award damages imply discretion to refuse an in- junction in cases, especially of continuing nuisance, where the plaintiff ij entitled to that remedy under the settled principle?, of equity: Shelf er v. City of London Electric Lighting Co. (No. 1) [1895] 1 Ch. 287, 64 L. J. Oh. 216, C. A. (c) E.g. Kelk \ . Pearson (1871) L. R. 6 Ch. 809. The order of the Ceurt is now expressed in direct affirmative terms: Jackson v. Normandy Brick Co. [1899] 1 Ch. 438, 68 L. J. Ch. 407, 0. A., see reporter's note [1899] 1 Ch. atl p. 439. ((-?) The form of order does not go to prohibit the carrying on of such and such operations abso- lutely, but "so as to cause a nuisance to the plaintiff," or like words: see Lingv:ood v. Stoic- market Co. (1865) L. R. 1 Eq. 77, 336, and other preeedenis in Seton, Pt. II. ch. 5, s. 5; cp. Flei.iiiig v. JJidop (1880) 11 App. Ca. (Sc.) 686. (a) Even a mandatory injunc- tion may bo granted, in an extreme case, at an interlocutory stage: 430 NUISANCE. or conditional, upon the fulfilment by either or both of the parties of such undertakings as appear just in the particular case (/). It is a matter of comimon learning and practice that an' injunction is not, like damages, a remedy (as it is said) ex debito iustitiae. 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 impending is such as by the reason of its gravity, or its permanent character, or both, cannot be adequately compensated in damages (p'). The injury must be either irreparable or continuous (h); but it need not include personal annoyance to an occupier {i) . This remedy is therefore not appropriate for damage which is in its nature temporary and intermittent (fc), or is acci- dental and occasional {I), or for an interference with legal rights which is trifling in amoupt and effect (m). But the whei^e, after notice of motion, and (A) Wood L. J., L. B. 4 Ch. before the hearing, the defendant at p. 81. liad rapidly run up the wall com- (i) Wood v. Convmy Corporation plained of, he waa ordered to pull [1914] 2 Ch. 47, 83 L. J. Oh. it down without regard to the 498, C. A. general merits: Daniel v. Ferguson (Jc) A.-O. v. Sheffield Gas Cmi- [1891] 2 Ch. 27, C. A. sumers' Co. (1853) 3 D. M. G-. (/) Thus where the complaint 304, 22 L. J. Ch. 811, 98 R. E,. was of special damage or danger 151 (breaking up streets to lay gas from something alleged to be a, pipes), followed by A.-G. v. Cam- public nuisance, an interlocutory' bridge Consumers' Gas Co. (1868) injunction ha-s been granted on L. B. 4 Ch. 71, 38 L-. J. Oh. 94. the terms of the plaintifl: bring- (J) CooTce v. Forbes (1867) L. R. ing an indictment: Hepburn v. 5 Eq. 166 (escape of fumes from Lordan (1865) 2 H. & M. 315, works where the precautions used :352, 34 L. J. Ch. 293, 144 R. R. woL-e shown to be as a rule 169. sufficient). {g) Cooke v. Forbes, L. R. 5 Eq. (,„) Gaunt v. Fynney (1872) 166,173 (Wood V.-C. 1867); A.-G. L. R. 8 Ch. 8, 42 L. J. Ch. 122 V. Sheffield, ^c. Co. (note (fc), (ease of nuisajice from noise broke below). down, slight obstruction to ancient INJUNCTIONS. 431 prospect of material injury, which if completed, would be ground for substantial damages, is generally enough to entitle the plaintiff to an injunction («). Apprehension of future mischief from something in itself la's\-f ul and. capable of being done without creating a nuisance is no ground for an injunction (o). " There must, if no actual dumage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial " (p). But where a nuisance 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 wiU be found instructive on this point: — " In this case the Master of the Rolls has dismissed with costs the biU of the plaintiff. " The biU, in substance, sought by a mandatory injunc- tion to prevent the defendants, who are a great colliery company, from erecting or working an3- 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 light held no grottnd for injunc- 87, G2 L. J. Ch. 459. tion). Cp. Llandudno Urban Dis- (^p) 28 Ch. D. at p. 698. A trict Council v. Woods [1899] % premature action of this kind may Oh. 705, 68 L. J. Oh. 623, ii case be dismissed without prejudice to of alleged public nuisance. future proceedings in the ©vent 00 Martin v. Price [1894] 1 Ch. of actual nuisance or imminent 276, 63 L. J. Ch. 209, C. A. danger: ih. 704. (o) See the cases reviewed by {q) Goldsmid v. Tunhridge Pearson J., Fletcher v. Bealey Wells Improvement Commrs. (18&5) 28 Ch. B. 688, 54 L. J. (1866) L. B. 1 Ch. 349, 354, 35 Ch. 424, and see A.-G. v. Corpora- L. J. Ch. 382. tion of Manchester [1893] 2 Ch. 432 NUISANCE. 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 very elaborate discussion and consideration in the House of Lords. The Master of the Kolls derived from that case this principle: that in any case of this kind where the plaintiff was seeking to interfere with a great work carried on, so far as the work itself is concerned, in the normaJ and usual manner, the plaintiff must show substantial, or, as the Master of the Eoljls 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 that the word used in the judgment of the Lord Chancellor was 'sensible.' 1 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 toi me that he was quite right; and as 1 understand the propo- sition, it amounts to this, that, although when you onoe 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, stiU, if you are obliged to start with scientific evidence, such as the microscope of' the naturalist, or the tests of the chemist, for the purposes of establishing the damage itself, that evidence vnll not suffice. The damage must be such as can bo 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. 1 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,. (r) 11 H. L. C. 642, 145 E. E. 348 (1865). INJTINCTIONS. 433 although after the lapse of jears they become perfectly mea- surable and ascertainable ; and if in the course of nature the thing itself is so imperceptible, so slow, and so gradual as to require a great lapse of time before the results are made 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 ascer- tained to their satisfaction, or predicted to their satisfaction, that by the reign of Queen Victoria both white and red roses would have ceased to bloom in the Temple G-ardens. If some picturesque haven opens its arms to invite the com- merce of the world, it is not for this Court to fcvF^id the embrace, although the fruit of it should be the sights, and. sounds, and smells of a common seaport and shipbuilding- town, which would drive the Dryads and their masters fron^ their ancient solitudes. " With respect to this particular property before us, 1 observe that the defendants have established themselves on a peninsula which extends far into the heart of the orna- mental and picturesque grounds of the plaintiff. If, instead of erecting coke ovens at that spot, they had been minded, as apparently some persons in the neighbourhood on the other side have done, to import ironstone, and to erect smelt- ing furnaces, forges, and miUs, and had filled the whole of the peninsula with a mining and manufacturing village, with beershops, and pig-styes, and dog-kennels, which would p.— T. 28 434 NUISANCE. 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 Providence 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 material specific damage. Continuous interference with a legal right in a manner capable of producing material damage is enough (t). The difficulty or expense which the party liable for a nuisance 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 after- wards 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 (^^) . As to the person entitled to sue for a nuisance: as regards interference with the actual enjoyment of property, only the tenant in posseission (x) can sue; but the landlord or (s) James L. J., Salvin v. North [1895] 1 Ch. 287, 64 L. J. Cih. 216, Brancepeth Coal Co. (1874) L. R. C. A. 9 Ch. 705, at p. 708. (u) A.-G. v. Colne^ Hatch (€) Clowes V. Staffordshire Zun-alio Asylum (1868) L. B. 4 Ch. Potteries Waterworks Co. (^1872) 146. L. R. 8 Ch. 125, 142, 42 L. J. Oh. (k) Not a person who is there 107; op. Pennington v. Brinsop merely as a servant or licensee: Ball Coal Co. (1877) 5 Ch. D. 769, Malone v. Lmkey [1907] 2 K. B. 46Ii. J. Ch. 773, Shelf er v. Citij of 141, 76 L. J. K. B. 1134, C. A. London Electric Lighting Co. PARTIES. 435 reversioner 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 {y). A lessee who has underlet cannot sue alone in respect of a temporary nuisance, though he may properly sue as co- plaintiff with the actual occupier (;:). 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 {a) . The reversioner cannot sue in respect of a nuisance in its nature temporary, such as noise and smoke, even if the nuisance drives away his tenants (&), or by reason thereof he can get only a reduced rent on the renewal of the tenancy (c). " Since, in order to give a reversioner an action of this kind, there must be some injury done to the inheri- tance, the necessity is involved of the injury being of a permanent character" (d). 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 (e). As to liability: The person primarily liable for a nuisance is he who actually creates it, whether on his own land or not (/). The owner or occupier of land on which a nuisance is created, though not by himself or by his servants, may (y) See Dicey on Parties, 340. (c) Mumford v. Oxford, ^c. R. (z) Jones V. dmrpell (1875) Co. (1856) 1 H. & N. 34,25 L. J. L. E. 20 Eq. 5.39, 44 L. J. Ch. Ex. 265, 108 R. R. 439. 658, which also di9credit3 the sup- {d) Per Cur. 1 O. B. N. S. at position that a weekly tenant p. 361, 107 R. R. 698. cannot sue. (e) Metropolitan Associntion v. (a) Mntt, %. Shoolbred (1875) Peich (1858) 5 C. B. N. S. 504, L. R. 20 Eq. 22, 44 L. J. Ch. 384. 27 L. J. 0. P. 330, 116 R. R. 740. {h) Simpson v. Savage (1856) 1 (/) See Thompson v. Gibson C. B. N. &. 347, 26 L. J. O. P. (1841) 7 M. & AV. 456, 56 R. R. 50, 107 R. R. 688. 762. 28 (2) 436 NUISANCE. 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 continuaxiGe thereof {g), if it is caused by the omission of repairs which as between himself and the tenant he is bound to do {g), but not otherwise {h). 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 («') . 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 difference, and that only something amounting to an authority to continue the nuisance will make him liable (li) . Again, an occupier •\\'ho by licence (not parting with the possession) authorizes the doing on his land of something whereby a nuisance is created is liable (fc). 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 ((?) Tod-d V. Flir/ht (I860) 9 642. How far this applies to a C B. N. &. 377, 30 L. J. C;. P. weekly tenancy, qu thought tJie Co. (1883) 12 Q. B. Div. 70. 53 verdict could not have stood if L. J. Q. B. 58: a ease which the accident had happened by perhaps belongs properly to the dayliglit), Lord Penzance, Lord head of conti-ibutory negligence, of O'Hagan, Lord Selborne, and Lord which more presently. Only the Gordon; the minority of Lord circumstance of daylight soems to Hatherley, Lord Coleridge, and distinguish this from Slattern's case Lord Blackburn. Ellis v. G. W. (next note). ij. Co. (Ex. Oh. 1874) L. R. 9 (h) (1878) 3 App. Ca. 1155. C. P. 551, 43 L. J. O. P. 304, INVITATION TO ALIGHT. 457 111 the other gToup, which we have called " invitation to alight " eases, the nature of the facts is, if anything, less favourable to the defendant. A train stopping at a station overshoots the platform so that the front carriages stop at a place more or less incon\"enient, or it may be dangerous, for persons of ordinary bodily ability to alight. A passenger bound for that station, or otherwise minded to a,light, is unaware (as by reason of darkness, or the like, he well may be) of the inconvenience of the place (/c), or else is aware of it, but takes the attendant risk rather than be carried beyond his destination. In either case he gets out as best he can, and, whether through false security, or in spite of such caution as he can use, has a fall or is otherwise hurt. Here the passenger is entitled by his contract with the company to reasonable accommodation, and they ought to give him facilities for alighting in a reasonably convenient manner. Overshooting the platform is not of itself negligence, for that can be set right by tacking the train (Z). It is a question of fact whether under the particular circumstances the company's servants were reasonably diligent for the accommodation of the pas- sengers (to), and whether the passenger, if he alighted know- ing the nature of the place, did so under a reasonable apprehension that he must alight there or not at all (n). All these cases are apt to be complicated with issues of contributory negligence and other similar though not identical questions. We shall advert to these presently. does not seem consistent with this Ex. 67. decision: there was difference of (in) Bridges v. A". London R. opinion in that case also. Co., pp. 52, 53, above. a) Cockle V. S. E. R. Co. (n) Robson v. A'. E. R. Co., (1872) Ex. Ch. L. E. 7 O. P. 321, 2 Q. B. Div. 85, 46 L. 3. Q. B. 41 L. J. C. P. 140. 50; Rose v. N. E. R. Co., 2 Ex. ' (0 Siner v. G. W. R. Co. (1869) Div. 248, 46 L. J. Ex. 374 (Ixjth ilx. Oh. L. R. 4 Ex. 117, 38 L. J. in 1876). 458 NEGLIGENCE. It will be convenient now to take a case outside these particular types, and free from their complications, in which the difficulty of deciding what is "evidence of negligence " is illustrated. Such an one is Smith v. London and South Western Railway Company (o) . The facts are, in this- country and climate, of an exceptional kind: but the case is interesting as coming near, though distinctly within, the line at which the freedom' of the jury ceases. The action was in respect of property burnt by fire, communicated from sparks which had escaped from the defendant company's locomotives. The material elements of fact were the- following. Hot dry weather had prevailed for 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 de- fendants' servants on the banks adjoining the line, and the- boundary hedge trimmed, and the cuttings and trimmings had, on the morning of the fire {p), been raked into heaps, and lay along the bank inside the hed^e. These cutting^ and trimlnings were, by reason of the state of the weather,, very dry and inflammable. Next the hedge there was a stubble field; beyofld that a road; on the other side of the road a cottage helonging to the plaintiff, 200 yards in all distant from the railway. Two trains passed, and immediately or shortly afterwards the strip of grass between the railroad and the hedge was seen to be on fire. Notwithstanding all efforts made to subdue it, the fire burnt through the hedge, spread over the (o) L. E. 5 C. P. 98, 39 L. J. -wind is Milvjauhee and Si. Paul C. P. 68, in Ex. Ch. 6 0. P. 14, S. S. Co. v. Kellogg (1876) 94 40 L. J. C. P. 21 (1870). The U. S. 469. accident took place in ihe extra- (p) See s-tatement of tlie facts ordinarily warm and dry summer in the report in Ex. Ch. L. E. 6- of 1868. A somewhat similar C. P. at p. 15. American case of fire carried bv EVIDENCE IN SPECIAL CIRCUMSTANCES. 459 stubble field, crossed the road, and consumed the plaintiff's cottage. There was no evidence that the railway engines were improperly constructed or worked with reference to the escape of sparks, and no direct evidence that the fire came from one of them. The jury found for the plaintiff; and it was held (though with some difficulty) (q) that they were warranted in so finding on the ground that the defendants were negligent, having regard to the prevailing weather, in leaving the dry trimlnings in such a place and for so long a time. The risk, though unusual, was apparent, and the company was bound to be careful in proportion. " The more likely the hedge was to take fire, the more incumbent it was upon the company to take care that no inflammable material remained near to it " (r). Thus there was evidence enough, though none to spare, to be left for the jury to decide upon. Special danger was apparent, and it would have been easy to use appropriate caution . On the other hand the happening of an accident in extraordinary circumstances, from a cause not apparent, and in a manner that could not have been pre- vented by any ordinary measures of precaution, is not of itself any evidence of negligence (s) . 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 (^). (?) Brett J. dissented in the (s) Blyth v. Birmingliam Water- Common Pleas, and Blackburn J. ^oorhi Co. (1856) 11 Ex. 781, 25 expressed some doubt in the Ex. L. J. Ex. 212, 105 K. R. 791, Ch. on the ground that the par- supra, pp. 46, 47. tieular damage in question could (<) Crafier v. Metrop. li. Co. not have reasonably been antici- (1806) L. E. 1 C. P. 300, 35 L. J. pated. C. P. 132: the plaintiff slipped on (r) Lush J. in Ex. Ch. L. R. the brass "nosing" of the steps 6 C. P. at p. 23. (this being the material in commoD 460 NEGLIGENCE. Illustrations might be largely multiplied, and may be found in abundance in Mr. Seven's monograph, or by, means of the citations and discussions in the leading cases. 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). We have said that the amount of caution required of a; citizen in his conduct is proportioned to the amount of apparent danger. In estimating the probability of danger to others we are entitled to assume, in the absence of anything to show the contrary, that they have the fuU use of common faculties, and are capable of exercising ordinary caution. If a workman throws down a heavy object from a roof or scaffolding "in a country village, where few passengers are," he is free from criminal liability at all events, provided "he calls out to all people to have a care" {x). 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 impru- dence 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 run over from want of hearing a shout or a whistle («/), or a use, whereof the Court took judicial left to the jury whether, on the notice " with the conunon cxperi- whole, tlie work was being dono «noe which every one has," peri with reasonable care. Willes J., L. R. 1 C. P. at p. 303), (;/) Cp. Skelton v. L. ^- N.. W,, and it was suggested that lead E. Co. (1867) L. R. 2 O. P. €31, would have been a safer material. 36 L. J. C. P. 249, decided how- («) P. 451, above. ever on the ground that the aoqi- (») Blackst. Comm. iv. 192. dent was wholly due to the man's D. 9. 2, ad. leg. Aquil. 31. In a own want of care, civil action it would probably be TEST OF APPARENT RISK. 461 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 blind 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 measure of the caution required from a lawful man must be fixed with regard to other men's normal powers of taking care of themselves, and abnormal infirmity can make a difference only when it is shown that in the particular case it was apparent. On the other hand it seems clear that greater care i& required of us when it does appear that we are dealing with persons of less than ordinary faculty. Thus if a man driving, or a cyclist, sees that a blind man, an aged man, or a cripple is crossing the road ahead, he must govern his course and speed accordingly. He will not discharge him- self, 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 like manner, if one sees a child, or other per- son manifestly incapable of normal discretion, exposed to risk from one's action, it seems that proportionate care is required; and it further seems immaterial that the child 462 NEGLIGENCE. would not be there but for the carelessness of some parent or guardian or his servant. The principle, accepted for some time in the Supreme Court of the United States {z), is now recognized by the House of Lords as applicable to children of tender years (a) . III. — Contributory Negligence. 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 or direct cause. Now 1 may be negligent, and my negligence may be the occasion of some one suffering harm, and yet the imme- diate cause of the damage may be not my want of cara but his own. Had I been careful to begin with, he would not have been in danger; but had he, being so put in danger, used reasonable care for his own safety or that of his pro- perty, the damage would still not have happened. Thus my original negligence is a comparatively remote cause of the harm, and as things turn out the decisive 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 answer- ing 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 negligence; " a phrase well established in our forensic usage, though not free from (z) " The care and caution re- Atkinson's opinion. Note that the quired of a cliild is according to House decided only that tho verdict his maturity and capacity only ": waa open to the jury on the facts, R. R. Go. V. Stout, 17 Wall. 657; not that they a^eed witli it. Some Baltimore ^- Potomac R. R. v. special risk must have been appa- Cumberland (1900) 176 U. S. 232. rent to the defendant: LatJiam v. (a) Cooke v. Midland G. W. R. R. Johnson and Nephew [1913] 2 of Ireland [1909] A. C. 229, 78 K. B. 398, 82 L. J. K. B. 258, L. J. P. C. 76, see especially Lord C. A. CONTKIBUTORY NKGLIGENCK. 463 objection. It does not mean that a man who does not take ordinary care for his own safety is to be in a manner pun- ished for his carelessness by disability to sue any one else "whose carelessness was concerned in producing the damage. Any such view is contradicted by the common practice of our courts, founded on constant experience of the way in which this question presents itself in real life. " The re- ceived 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 conse- quence of the defendant's negligence, he cannot recover " (6). That is to say, he is not to lose his remedy merely because he has been negligent at some stage of the business, though without that negligence the subsequent events might not or would not have happened ; but only if he has been negli- gent 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. Conversely it is an accepted qualification of the rule " 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" (c). In a leading case of which there will be more to say the criterion of what was the proximate cause of the injury is adopted throughout (d). It is true that the rule is not merely a logical deduction, but is founded in public utility. " The ultimate justifica- (i) Lord Blackburn, 3 App. Ca. 36, 56 L. J. P. 38; a£Ed. nom. MUls at p. 1207. V. Armstrong (1888) 13 App. Ca. (c) Lord Penzance, Radley v. 1, 57 L. J. P. 65; see especially L. i- N. W. R. Co. (1876) 1 App. the judgment of Lindley L. J., Ca. at p. 759. and cp. Little v. HacTcett (1886) ((0 The Bernina (1887) 12 P. D. 116 U. S. 366, 371. 464 NEGLIGENCE. tion of the rule is in reasons of policy, viz., the desire ta prevent accidents by inducing each member of the community to act up to the standard of due care set by the law ' (e). Still the question to be decided in each case " is not one of desert or the lack of it, but of the cause legally responsible for the injury " (/). The authority which settled the doctrine in its modern form is Tuff v. Warman {g). 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 conflicting, but according to the plaintiff's witnesses she might easily have cleared the barge. Willes J. left it to the jury to say whether the ^v-ant of a look-out was negligence on the part of the plaintiff, 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 {h) it is said that the proper question for the jury is " whether the damage -nas occasioned entirely by the negli- gence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened." But negligence will not disentitle the plaintiff to recover, unless it be such that without it the (e) W. Schofield in Harv. Law {g) 1 C. B. N. S. 740, 5 C. B. Rev. iii. 270. N. S. 573, 27 L. J. C. P. 322 (/) Judicial Committee per Lord (1857-8), 109 R. E. 865, 116 E. Sumner, B. G. JEJeotrio S. Co. \. E. 774. Zoac/U [1916] 1 A. C. 719, 72.5. (A) 5 C. B. X. S. at p. 585. 116 E. E. 779. CONTRIBUTOEY NEGLIGENCE. 465 harm complained of would (i) not have happened; " uor if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff." In Radley v. London atid North Western Railway Co. (;'), this doctrine received a striking confirmation. The defendant railway company was in the habit of taking full trucks from the siding of the plaintiffs, colliery 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 even- ing the railway servants brought on the siding a line of empty trucks, and pushed on in front of them all those pre- viously left on the siding. Some resistance 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 any 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 acci- dent " happened by the negligence of the defendants' ser- vants, and without any contributory negligence of their own; (j) Not "could: " see Beven. on of the Exchequer Chamber, L. R. Negligence, i. 152, 3rd ed. 10 Ex. 100, and restoring that of (j) 1 App. Oa. 754, 46 L. J. the Court of Exchequer, L.. R. 9 Ex. 673, reversing the judgment Ex. 71 (1874-6). P. 30 466 NEGLIGENCE. in other words, that it was solely by the negligence of the defendants' servants." On these facts and under this direction the jury found that there was contributory ' negligence on the part of the plaintiffs, and a verdict was entered for the defendants. The Court of Exchequer (k) held that there was no evidence of contributory negligence, chiefly on the ground that the plaintiffs were not bound to expect or provide against the negligence of the defendants. The Exchequer Chamber (l) 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 Lords it was held (m) 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 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 fit to be considered by the jury on the question of negligence; but he failed to add that if they thought the engine-driver might at this stage of the matter by ordinary care have avoided aU accident, any previous (ft)BraniwellandAmphlettBB. (») The principle of Radley's (0 Blackburn, Mellor, Lush, ««'« ha. lately been applied to still Grove, Brett, Archibald JJ.: dm. "^o™ <»nipUoated facte, not with- -p, T out difference of opinion: Eller- ■man Lines v. H. ^ C. Grayson (m) By Lord Penzance, Lord [1919] 2 K. B. 514, 88 L. J. K. B. Cairna, Lord Blackburn (thus re- 904, 0. A., affd. in H. L. nom. traoting his opinion in the Ex. Grayson v. S. Wales, #c. Co. Ch.), and Lord Gordon. [1920] A. C. 466. CONTRIBUTORY NEGLIGENCE. 467 negligence of the plaintiffs would not preclude them from recovering. " In point of fact the evidence was strong to show that this was the immediate cause of the accident, and the jury might well think that ordinary care and 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 " (o). This leaves no doubt that the true ground of contributory negligence being a bar to recovery is that it is the proximate cause of the mischief; and negligence on the plaintiff's part which is only part of the inducing causes (p) will not disable him. The term " proximate cause " has long been approved by usage and authority, but " direct " lias been proposed as an improvement, though not precisely in this context (q). 1 would still suggest, as 1 did in the first edition, that " de- cisive " might convey the meaning more exactly. For if the defendant's original negligence was 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, the plaintiff would not have any case at all, and the question of contributory negligence would not arise. We shall imme- diately 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 (o) Lord Penzance, 1 App. Ca. dition " is dangerous to refine at p. 760. ' upon: tJie deep watei-s of phOo- (p) Or, as Mr. Wharton puts it, sophy are too near, not a cause, but a condition. But (y) See per Lord Sumner [1918] the contrast of " cause " and " con- A. O. at p. 114. 30(2) 468 NEGLIGENCE. used in precisely the same sense in fixing a negligent de- fendant'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 mark- ing the difference. If we said " decisive" we should at any rate avoid this danger. A person who has by his own act or default deprived himself of ordinary ability to avoid the consequences of another's negligence, whether initial or contributory, is in no better position than if, having such ability, he had failed to avoid them. A horse-drawn wagon approached an electric rail tract without, keeping a reasonable look-out, and was run over by an electric car which nevertheless the motorman could and would have stopped if his brake had been efficient. The railway company was liable for the damage (r). If, indeed, the other had notice of his inability in time to use care appropriate to the emergency, the failure to use that care would be the decisive negligence. A. and B. are driv- ing in opposite directions on the same road on a dark night. B. is driving at a dangerous speed, and A. is asleep, 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 (r) B. C. Electric S. Co. v. Lmch [19161 1 A. O. 719, 85 L. J. P. C. 23, J. O. CONTRIBUTOEY NEGLIGENCE. 469 of his own. So if a man meets a runaway horse, he cannot tell whether it is loose by negligence or by inevitable accident, but this can make no difference to what a prudent man could or would do, nor, therefore, to the legal measure of the diligence required. Cases earlier than Tuff v. Warman (s) are now material only as illustrations. A celebrated one is the "donkey case," Dames v. Mann{t). There the plaintiff had turned his ass loose in a highway with its forefeet fettered, and it was run over by the defendant's waggon, going at " a smartish pace." It was held a proper direction to the jury that, whatever 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 m'an might justify the driv- ing 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" (m). With this may be compared the not much later case of Mayor of Col- chester V. Brooke (x), where it was laid down (among many other matters) that if a ship runs on a bed of oysters in a river, and could with due care and skill have passed clear of them', the fact of the oyster bed being a nuisance to the navigation does not afford an excuse. The facts of Davies V. Mann suggest many speculative variations, and the deci- sion has been much and not always wisely discussed in America, though uniformly followed in this country {y). (a) 5 C. B. N. S. 573, 27 L. J. 3 M. & W. at p. 248, 49 E. E. O. P. 322, 116 R. E. 774. 593. (0 (1842) 10 M. & W. 546, 12 {x) 7 Q. B. 339, 376, 15 L. J. L. J. Ex. 10, 62 E. E. 698. Q. B. 59. (li) Parke B., 10 M. & W. at (y) See Harv. Law Eev. iii. p. 549; cp. his judgment in Bridge 272 — 276. V. Grand Junction M. Co. (1838) 470 NEGLIGENCE. Butterfield v. Forrester (z) 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 August, when dusk was coming on, but the obstruction was still visible a hundred yards off: he was riding violently, came against the pole, and feU with his horse. It was left to the jury whether the plaintiff, riding with reasonable and ordinary care, could have seen and avoided the obstruction; if they thought he could they were to find for the defendant; and they did so. The judge's direction was affirmed on motion for a new trial. " One person being in fault will not dispense with another's using ordinary care for himself." Here it can hardly be said that the position of the pole across the road was not a proximate cause — ^^surely it was a direct 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 omission or of commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong " (a). 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 (6). If it is not possible to say whether the plaintiff's or the defendant's negligence were the decisive cause of the damage, it may be said that the plaintiff cannot succeed (x) 11 East 60, 10 R. E. 433 Forrester, (1809). (6) Jladle^ v. Z. # N. W. R. {a) Little v. Hackett (1866) 116 Co.; Davies v. Mann, pp. 465, U. S. 366, 371; Butterfield v. 469, above. CONIRIBUTORY NEGLIGENCE. 471 because he bus failed to prove that he has been injured by the defendant's negligence (c). 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 thei defendant (d), the defendant would in such a case have failed to make out his defence, and the plaintiff, having proved that the defendant's negligence was a proximate cause if not the whole proximate cause of his damage, would still be entitled to succeed. The defendant must allege and prove not merely that the plaintiff was negligent, but that the plaintiff could by the exercise of ordinary care have avoided the consequences of the defendant's negligence (e). It is a question, either way, whether the plaintiff shall recover his whole damages or nothing, for the common law, whether reasonably or not (/), has made no provision for apportion- ing damages in such cases. A learned writer has suggested that " hardly sufficient attention has been paid herein to the distinction between cases where the negligent acts are sinmltaneous mid those where they are successive. In regard to the former class, such as Dublin, WicJclow ») Op. cit. 139. cover:" Parke B. in ■ Bridge v. («) Writers on maritime law Grand Junction R. Co., 3 M.. & W. state the rule of the common law 244, 248, 49 B. E. 590, 593. 480 NEGLIGENCE. of thumb, which frankly renounced the pretence of being anything more, it was long found tolerable by the majority of those whom it concerned (o), 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 (p), the juddcimn rusticum was expressly preserved in the Admiralty Division. The Maritime Conventions Act, 1911, has now substituted a new rule of apportionment (q). IV. — Auxiliary Rules and Presumptions. There are certain conditions under which the normal standard of a reasonable man's prudence is peculiarly difficult to apply, by reason of one party's choice of alternatives, 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 be held guilty of negli- gence 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 a sudden alarm. Still less can the party whose fault brought on the risk ha heard to complain of the other's error of judgment. This rule has been chiefly applied in maritime cases, ^^'here a (o) See, however, Mr. Leslie The Drumlanrig [1911] A. C. 16,. F. Scott'a article on this subjocti 80 L. J. P. 9. in L. Q. R. xiii. 17. (g) But the rule of equal divi- (» S. 25, sub-s. 9. See Mars- sion will remain where it is not den, p. 122, 6th ed., and see possible to establish different further as to the Admiralty rule, degrees of fault. ALLOWANCE FOR EMERGENCY, 481 ship placed in peril by another's improper navigation has at the last moment taken a wrong course (r) : but there is autho- rity for it elsewhere. A person who finds the gates of a level railway crossing open, and is thereby misled into think- ing 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 circum- stances " (s). " One should not be held too strictly for a hasty attempt to avert a suddenly impending danger, even though his effort is ill-judged" (t). One might generalize the rule in some such form as this: not only a man cannot with impunity harm others by his negligence, 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 risk every way, and then say that he suffered by his own impru- dence. 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 car- riage assumes that other vehicles will observe the rule of the road, the master of a vessel that other ships will obey the statutory and other rules of navigation, and the like. And generally no man is bound (either for the establishment of his own claims, or to avoid claims of third persons against him) to use special precaution against merely possible want (r) The Bywell Castle (1879) 4 (s) N. E. R. Co. v. Wanleaa P. Div. 219; The Tasmania (1890) (1874) L. R. 7 H. L. at p. 16; op. 15 App. Ca. 223, 226, per Lord Slaltery's ca. (1878) 3 App. Ca. Ilei-schell; and see other examples at p. 1193. collected in Marsden on (Collisions (i; Briggs v. Union Street Ry. at Sea, pp. 4, 5, 6th ed. (1888) 148 Masa. 72, 76. P. — T. 31 482 NEGLIGENCE, of care or skill on the part of other persons who are not his servants or under his authority or control (ii) . 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 (a;). On the other hand if something goes wrong which does not cause any pressing danger or inconvenience, and the passenger comes to harm in endeavouring to set it right himself, he cannot hold the comp'any liable (y). We have a somewhat different case when a person, having an apparent dilemma of evils or risks put before him by another's default, makes an active choice between them. The principle applied is not dissimilar; it is not 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. The earliest case where this point is distinctly raised and treated by a full Court is Claijards v. DetJiick {z). («) See Daniel v. Metrap. It. 277, though, (it eaems) not rightly Co. (1871) L. E.. H. L. 45, 40 in the paxticular case; seo in Gee 3L. J. C. P. 121. ,. Meirop. R. Co., L. E,. 3 Q. B. (x) Gee V. Metrop. JR. Co. at pp. 161, 173, 176. (1873) Ex. Ch. L. K. 8 Q. B. 161, (z) 12 Q. B,. 439, 76 R. R. 303 42 L. J. Q. B. 105. There was (1848). The rule was laid down by some difference of opinion how far Lord Ellenborough at nisi prius as the question of contributory neg-li- early as 1816; Jones v., Boyee, 1 gence in fact was fit to be put to Stark. 493, 18 R. R. 812, cited the jury. That the fact of a door by Montague Smith J., L. R. 4 in a train in motion being left open C. P. at p. 743. The plaintiff was is evidence of negligence, see Tool an outside passenger on a coach, V. 'North British Ry. [1908] A. C. and jumped off to avoid what 352, 77 L. J. P. C. 119. seemed an imminent upset; the (■tj) This is the principle applied coach -was, however, not upset. It in Adams v. L. ^ T. S. Co. (1869) was left to the jury whether by the L. R. 4 C. P. 739, 38 L. J. 0. P. defendant's fault he " was placed CHOICE BETWEEN KISKS. 48;i The plaintiff was a cab-ownor. The defendants, for the purpose of making a drain, had opened a trench along the passage whieli afforded the only outlet from the stables occu- pied by the plaintiff to the street. The opening was not fenced, and the earth and gi-avel excavated from the trench were thrown up in a bank on that side of it where the freei space vfus wider, thus increasing the obstruction. In this state of things the plaintiff attempted to get two of his horses out of the mews. One he succeeded in leading out over the gravel, by the advice of one of the defendants then present. With the other he failed, the rubbish giving way and letting the horse doAvn into the trench. Neither defen- dant was present at the time (a). The jury were directed " that it could not be the plaintiff's duty to refrain altogether from coming out of the mews merely because the defendants had made the jjassage in some degree dan- gerous: that the defendants were not entitled to keep the occupiers of the mews in a state of siege till the passage was declared safe, first creating a nuisance and then excus- ing 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, Avas a matter of fact and of degree properly left to the jury: " the whole question was whether the danger was so obvious that the plaintiff could not with common prudence make the attempt." The decision was adversely criticised by Lord Bramwell, but principle is for it and no accepted ■authority against it. in such a situation as to render (a) Evidence was given by the what he did a prudent ^precaution defendants, but apparently not for the purpose of self-preserva- believed by the jury, that their tion." men •expressly warned the plaintifi: against the course he took. 31(2) 484 NEGLIGENCE. One or two of the railway cases grouped for practical purposes under the catch-word " invitation to alight " havei been decided, in part at least, on the principle that, where a passenger is under reasonable apprehension that if he does not alight at the place where he is (though an unsafe or unfit one) he will not have time to alight at all, he may be justified in taking the risk of alighting as best he can at that place (&); notwithstanding that he might, by de- clining that risk and letting himself be carried on to the next station, have entitled himself to recover damages for the loss of time and resulting expense (c) . There has been a line of cases of this class in the State of New York, where a view is taken less favourable to the plaintiff than the rule of Clayards v. DethicJc. 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 (and, if he does not do so, i& primn 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 de- fault; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from- liis neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy hy the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of Ms own; and it seems but reasonablo and just that the neighbour who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own properly, but which he knows to be mischievous if it gets on his neigh- bour'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 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." In the House of Lords (d) the reasons thus given were fuUy confirmed. " If a person brings or accumulates on his land anything which, if it should escape, may cause {d) Rylands v. Fletcher (1868) L. E. 3 H. L. 330, 37 L. J. Ex. 161, 143 R. R. 629. 492 DUTIES OF INSURING SAFETY. damuge to his neighbours, he does so at his peril. If it does escape and cause damiage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage" (e). It was not over- looked 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 (/), even to obviously probable consequences. Here Lord Cairns pointed out that the defendants had for their own purposes made " a non- natural use " of their land, by collecting water " in quan- tities 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 adjacent landowners, belongs to the law of property rather than to the subject of this work (g). As laying down a positive rule of law, the decision is not open to criticism' in this country (h). But in the judgment of the Exchequer Chamber itself the possibility of exceptions is suggested, and (e) Lord Cranworth, L. R. 3 dischai^ed into the earth in H. Ij. at p. 340, 143 R. R. 631. National Telephone Co. v. Baker (/) Chasemore v. Richards -'[1893] 2 Oh. 186, 62 L. J. Oh. 699. (1859) .7 H. L. C. 349, 29 L. ,T. (A) It is by no means generally Ex. 81, 115 R. R. 187. aooepted in America (see 1 Wig- ig) See Fletcher v. Smith (1877) more, Sel. Ca. 1013 sqq.). The 2 App. Ca. 781, 47 L. J. Ex. 4; Judicial Committee has expressed Humphries v. Cousins (1877) 2 an opinion that it is consistent with O. P. D. 239, 46 L. J. O. P. 438; Roman law, and that the rule is Hwrdnum v. North Eastern R. Co. part of the Roman-Dutch law of (1878) 3 0. P. Div. 168, 47 L. J. the Cape Colony: Eastern and O. P. 368; and for the distinction S. A. Telegraph Co. v. Cape as to "natural course of user," Town Tramways Co. [1902] A. O. Wilson V. Waddell, H. L. (Sc.) 2 381, 71 L. J. P. O. 122. No App. Ca. 95. The principle of Roman or modern civilian autho- Ryland-i v. Fletcher was held rity is given, applicable to an electric current RYLANUS V. FLETCHER. 493. the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. A rule casting- the responsibility of an insurer on innocent persons is a hard rule, though it may be a just one; and it needs to be main- tained on very strong evidence {i) or on very clear grounds of policy. Now the judgment in Fletcher v. Eylcmds (k), 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 artificially Main- tained by the defendants on their land. In part the case is assimilated to that of a nuisance {I), and in part, also, traces are apparent of the formerly prevalent theory that a man'a voluntary acts, even when lawful and free from negligence,, are prmM facie done at his peril (m), a theory which modern authorities have explicitly rejected (n). Putting that ques- tion 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, con- tractors, or others), and throwing the burden of proof on him in cases where the matter is peculiarly within his know- ledge (o). The actual result, as we shall see presently when (i) See Reg. v. Commissioners^ land by flood- water: Jones v. of Se-wera for Essex (1883) 14 Llanrwst V . B. Council [1911] 1 Q. B. Div. 561. Oh. 393, 80 L. J. Oh. 145. Qi) L. R. 1 Ex. 277 sqq., 143 (m) L. R. 1 Ex. 286-7, 3 H. L. E. R. 620. 341. {I) See especially at pp. 285-6. (») See p. 14.3, above. As to But can an isolated accident, how- the effect of statutory impositioaL ever mischievous in its results, be of an absolute duty in creating a a nuisance? though its consequences co-e.xtensave civil responsibility, see may, as where a branch lopped or David v. Britannic Merlhyr Coal blown down from a tree is left Co. [1909] 2 K. B. 146, 78 L. J. lying across a highway. So of K. B. 659, C. A. sewage carried on the plaintiff's (o) Sir J. Salmond (" Law of 494 DUTIES OF INSURING SAFETY. we consider duties of safe repair, has been a scheme of graduated liabilities which it is hard to approve on any. ground of substantial justice or practical convenience (p). For some time it was possible to consider Rylands v. Fletcher as having only fixed a special rule about adjacent landowners (q), but it was certainly intended to enunoiata something much wider; and the rule is now held to apply hetween parties who have no estate or interest in the soil, hut only a licence to lay and use underground mains and cables (r). Yet no case has been found, not being closely similar in its facts, or within some previously 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 (s). Thus the owner of Torts," p. 233, 4th ed.) ar^es ttat Power Co. [1913] 3 K. B. 442 Rylands v. Fletclier does not apply (Somtton J.), a£Ed. O. A. [1914] -where there has been no negligence 3 K. B. 772, 83 L. J. K. B. 1352. on the part of any one. 1 should («) There must be something of te glad to thinlc so if I could. this kind. A man is not liable for Qp) See " Liability without the loss of a neighbour's catitla Fault,'' an luifinished article by the which trespass and eat yew leaves late Dean Thayer of the Harvard on his land; Ponfmf/ v. Naakes Law Scliool, Harv. Law Rev. xxix. [1894] 2 Q. B. 281, 63 L. J. Q. B. 801, pointing out that the "res 549, There is no duty to keep in ipsa loquitur" principle (p. 525, things which, though noxious in below), wMch was hardly de- some sense, are not dangerous, and veloped at the date of Rylands i . have not been brought on the d-e- Fletoher, would suiEce to cover the fendant's land by his own act; A ground for all useful purposes in man is not bound to cut the thistles a simpler and more rational on his land or keep in the thistle- manner, down: Giles v. TFalkei- (1890) 24 (g) Mai-tin B., L. R. 6 Ex. at Q. B. D. 656, 59 L. J. Q. B. 416. P- 223. Similarly as to rats: Steam v. ()-) Charingr Cross, #e. Electric Prnntice Bros. [1919] 1 K. B. 394, ■Supply Co-. V. London Hydraulic 88 L. J. K. B. 422. RYLANDS V. FLETCHER. 495 jew trees, whose branches project over his boundary, so that his neighbour's horse eats of them' and is thereby poisoned, is held liable {t); and the same rule has been applied 'where a fence of wire rope was in bad repair, so that pieces of rusted iron wire fell from it into a close adjoining that of the occupier, who was bound to maintain the fence, and were swallowed by cattle which died thereof («). In these cases, however, it was not contended, nor was it possible to contend, that the defendants had used any care at all. The arguments for the defence went either on the acts complained of being within the "natural user " of the land, or on the damage not being such as could have been reasonably antici- pated (x). 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 any- thing else, fall upon a neighbour's land for want of due repair is of itself a trespass. Then in Ballard v. Tondin- son (y) the sewage collected by the defendant in his disused well was an absolutely noxious thing, and his case was, not that he had done his best to prevent it from poisoning the water which supplied the plaintiff's well, but that he was not bound to do anything. The same princijole has been (t) Crowhurst v. Amerslwm overhanging branches of yew trees Burial Board (1878) 4 Ex. D. 5, growing on the lessor's adjacent 48 L. J. Ex; 109. Wilson y. New- land: Cheater v. Cater [1918] 1 , berry (1871) L. R. 7 Q. B. 31, K- B. 247, 87 L. J. K. B. 449, 41 L. J. Q. B. 31, is not incon- 0. A. sistent, for there it was' only ^^^-^ p-j.^f^ ^_ BoioUng Iron Co. averred that clippings from the de- (i^-j^) 3 c. P. D. 254, 47 L. J. fondant's yew trees were on thef q p ggg plaintiff's lajid; and the clipping might, for all that appeared, have C-^) The former ground was been the act of a stranger. As "liiefly relied on in Crowhursfs between lessor and lessee the lessee ™»«' ^^e latter in Firth's. must take things as he finds them, (-y) 29 Ch. Div. 115, 54 L. J. and cannot complain of loasi ch. 454 (1885). suffered through his cattle eating 496 DUTIES OF INSURING SAFETY. applied against a local authority whose extension of sewage, works had spoilt the plaintiff's oyster ponds (z). 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 imniiediate cause is the act of God (a). And the act of God does not necessarily mean an operation of natural forces so violent and unexpected that no human- foresight or skill could possibly 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 (6). The only material element of fact which dis- tinguished the case referred to from' Bt/lcmds v. Fletcher "was that the overflow which burst the defendants' embankment, and set the stored-up water in destructive motion, was due to an extraordinary storm'. Now it is not because due diligence has been used that an accident which nevertheless happens is attributable to the act of God. And experience of danger («) Foster v. Warblington (b) Nichols v. Marsland (1875- Urban Council [1906] 1 K. B. 1876) L. E. 10 Ex. 255, 2 Ex. D. 648, 75 L. J. K. Bi. 514, O. A. 1, 46 L. J. Ex. 174; see critical Here the defendant had actually observations in H. L. in the put the noxious thing in motion. Greenock case, last note. Note («) Act of God:^vi9 maior= that Lord Bramwell, who in StoD g/ot : see D. 19. 2. loeati con- Rylands v. Fletcher took the view ducti, 25, § 6. The classical sig- that ultimately prevailed, was also nifioation of " vis maior " is how- a party to this decision. The de- ever wider for some purposes; fondant was an owner of artificial Nugent v. Smith, 1 C. P. Div. pools, formed by damming a 423, 429, per Cockburn O. J. As natural stream, into which the to the modern French term " force water was finally let off by a majeure," see Maisoukis v. Priest- system of weirs. The rainfall man ^- Co. [1915] 1 K. B. 681, accompanying an extremely violent 686, 84 L. J. IC. B. 967, 969, 970, thunderstorm broke the embank- and as to ■' damnum fatale " in ments, and the rush of water down Scots law, Greenocl: Corporation v. the stream carried away four CaJed-onifin li. Co. [1917] A. C county bridges, in respect of which 556, 86 L, J. P. C. 185. damag-e the action-was brought. KYLANDS V. FLETCHER : EXCEPTIONS. 497 previously unknown may doubtless raise the standard of due diligence for after-time (c). But the accidents that happen in spite of actual prudence, and yet might have been pre- vented by some reasonablj' 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 {d). The authority of Ryhnds v. Fletcher is unquestioned, but Isichols V. Marsland has practically empowered juries to mitigate the rule whenever its operation seems too harsh. Again the principal rule does not apply -where the immediate cause of damage is the act of a stranger (e), nor where the artificial work which is the source of danger is maintained for the common benefit of the plaintiff and the defendant (/) ; nor does it make a man liable for the consequences of what a third person does on his land not for the owner's but for his own purposes (gf) ; and there is some ground for also making an exception where the immediate cause of the harm, though in itself trivial, is of a kind outside reasonable expectation (h). (c) See Reg. v. Commissioners only using' his property in a. of Sewers for Essex (1885) in natural way. judgment of Q. B. D., 1-1 Q. B. (/) Carstairs v. Tui/lor (1871) D. at p. 574. L. E- C Ex. 217, 40 L. J. Ex. 29; (d) " Whenever the world grows cp. Madras li. Co. v. Zemindar wiser it convicts those that came of Carvaienagaram, L. E. 1 Ind. before of negligence.'' Brarawell App. 364. B., L. R. 6 Ex. at p. 222. But {fi) Whiimores v. Stanford juries do not, unless the defendant [1909] 1 Ch. 427, 78 L. J. Ch. 144. is a railway company. CO Carstairs v. Taylor, note (/), (e) Box V. Jubb (1879) 4 Ex. above, but the other ground seems D. 76, 48 L. J. Ex. 417. Wilson the principal one. The plaintiff v. Newberry (1871) L. R. 7 Q. B. was the defendant's tenant; the 31 41 L. J. Q. B. 31, is really defendant occupied the upper part a decision on the same point. of the house. A rat gnawed a Richards v. Lothian [1913] A. C. hole in a rain-water box main- 263 82 L. J. P. C. 42 (J. O.),. tained by the defendant, and water where however the defendant was escaped through it and damaged P. — T. 32 498 DUTIES OF INSURING SAFETY. There is yet another exception in favour of persons acting in the performance of a legal duty, or in the exercise of powers specially conferred by law. Where a zamindar maintained, and was by custom bound to maintain, an ancient tank for the general benefit of agri- culture in the district, the Judicial Committee agreed with the High Court of Madras in holding that he was not liable for the consequences of an overflow caused by extra- ordinary rainfall, no negligence being shown (i). In the climate of India the storing of water in artificial tanks is not only a natural but a necessary mode of using land (Zc). In like manner the owners of a canal constructed under the authority of an Act of Parliament are not bound at their peril to keep the water from' escaping into a mine worked under the canal (I) . On the same principle a railway com- pany authorized by Parliament to use locomotive engines on its line is bound to take all reasonable measures of pre- caution to prevent the escape of fire from its engines, but is not bound to more. If, notwithstanding the best practi- cable care and caution, sparks do escape, and set fire to the property of adjacent owners, the company is not liable (m). The burden of proof appears to be on the the plaintiff's goods on tho ground same rea«)n, see per Scrutton J. floor. Questions as to the relation [1913] 3 K. B. at p. 449. of particular kinds of damage to (/c) See per Holloway J. in the conventional e.Kceptions in con- Court below, 6 Mad. H. C. at tracts for safe carriage or custody p. 184. are of course on a different footing. (?) Dioiii v. Birmingham Canal See as to rats in a ship, Hamilton Co. (1872; Ex. Ch. L. E. 8 Q. B. V. Pandorf (1887) 12 App. Ca.' 42, 42 L. J. Q. B. 34. The prin- 518, 57 L. J. Q. B. 24. ciple was hardly disputed, the (i) Madras It. Co. v. Zemindar point which caused some difficulty of Carvatenagaram, L. E. 1 Ind. being whether the defemdants were App. 364; S. C, 14 Ben. L. R. bound to exercise for the plaintiff's 209. Qumre whether the carrying benefit certain optional powers of mains and cables under a road given by the same statute, for public purposes may not ulti- (m) Vaughan motor-car at rest, having petrol in the tank, is a dangerous thing. This opinion was not necessary for the decision {g). Poisons can do as much mischief as loaded fire-arms or explosives, though, the danger and the appropriate precau- tions are different. A wholesale druggist in New York f)urportcd to sell extract of dandelion to a retail chemist. 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 the country practitioner, and by him to a customer, who took it as and for extract of dandelion, and thereby, 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 be- tween the defendant and the immediate purchaser from him could make no difference, as its non-existence would have made none. The plaintiffs' 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" (A). This case has been thought (jr) Musgrove v. Pandelis [1919] Lower Canada, but the peculiar 2 K. B. 43, 88 L. J. K. B. 915, findings ol' the jury prevented tliis C. A. point of law from being considered (A) Thomas et ux. v. Winchesier by the Judicial Committee. More (1852; 6 N. y. 397, Bigelow L. C. lately tlie Judicial Committee has 602. The deoiflion seems to be referred to Thomas v. Winchester generally followed in America. with apparent approval; Dominion Kerry v. England [1896] A. C. Natural Gas Co. v. Collins [1909] 742, 67 L. J. P. C. 150, was a case A. O. 640, 646, 79 L. J. P. C. 13. on similar facts under the law of 510 DUTIES OP INSURING SAFETY. in England to go too far; but it is hard to see in what respect it goes farther than Dixon v. Bell. So far as the casesi .are dissimilar, the damage would seem to be not more but less remote. If one sends belladonna into the world labelled as dandelion (the two extracts being otherwise dis- tinguishable only by nainute 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 without any action on the part of others necessarily involving want of due care (^). 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. Nevertheless, difficulties are felt in England about admitting this application of a principle which in other directions is both more widely and more strictly applied in this country than in the United States (/). In 1869 the Court of Exchequer 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 persoai whom it in fact injured (k). 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, (i) The jury found that there v. Pender (1883) 11 Q. B. Div. at Tya.3 not any negligence on the p. 514, in a judgment which itself part of the intermediate dealers; endeavours to lay down a muoh the Ck)urt, however, were of opinion wider rule. that this was immaterial. (K) George v. Skivington (1869) (7) See per Brett M. R., Heaven L. B. 5 Ex. 1, 38 L. J. Ex. 8. POISONS. 511 as the judgment in Thomas v. W IncJiester carefully and clearly shows. Whether that case was well decided appears to be a perfectly open question for our courts (Z). In the present writer's opinion it is good law, and ought to be followed. Certainly it comes within the language of Parke B. in Longmeid v. Hollidai/ (m), which does not deny legal responsibility " when any one delivers to another without notice an instrument in its nature dangerous under particular circumstances, as a loaded gun which he himself has loaded, and that other person to whom it is delivered is injured thereby; or if he places it in a situation easily accessible to a third jDerson who sustains damage from it." In that case the defendant had sold a dangerous thing, namely an ill-made lamp, which exploded in use, but it was found as a fact that he sold it in good faith, and it was not found that there was any negligence on his part. As lamps are not in their nature explosive, it was quite rightly held that on these facts the defendant could be liable only ex contractu, and therefore not to any person who could not sue on his contract or on a warranty therein expressed or implied. A much more decided step was taken by the Court of Appeal in Clarice v. Army and Navij Co-operative Soci^tif {n). There the defendant company sold tins of (I) Dixon V. Bell (1816) 5 M. to commit itself. Dixon v. Bell is & S. 198, 17 E. R. 308 (supra, cited by Parko B. as a strong case, pp. 506, 507), ha9 never been d's- and apjiaiently with hesitating approved that we know of, but has acceptance, in Longmeid v. Holli- not been so actively followed that day (1851) 6 Ex. 761, 20 L. J. Ex. the Court of Appeal need be pre- 430, 86 K. R. 459. In Ireland it eluded from free discussion of the has been treated as of undoubted principle involved. In Langridge authority: Sullivan v. Creed [1904] V. levy (1837) 2 M. & W. at 2 I. R. 317, 333. p. 530, 46 R. R. 693, the Court (vi) 20 L. J. Ex. at p. 433. was somewliat astute to avoid dis- («) 1 1903] 1 K. B. 155, 72 L. J. cussing that principle, and declined K. B. 153. 512 DUTIES OF INSURING SAFETY. chlorinate of lime, a disinfectant of an irritating nature which was upt to fly out in the face of any one who opened a tin without special care. The plaintiff, a purchaser from' the company, suffered in this way. He did not know of the risk; the co^mpany's manager did, and had instructed the salesman to warn purchasers, but the salesman omitted to do so. The Court held, apart from any question as to the effect of terms excluding any warranty, that " there is a duty cast upon the vendor who knows of the dangerous character of the goods which he is supplying, and who knows that the purchaser is not or may not be aware of it, not to supply the goods without giving warning to the purchaser of that danger " (o). And this duty, though in fact arising out of a contract of sale, is independent of contract. There is nothing in the reasoning of the Court adverse to the possible existence of such a duty when there is no' contract at aU (p) . 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 structure. 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. The duty is founded not on ownership, but on possession, in other words, on the structure being maintained under the control and for the purposes of the person held answer- l^o) Romer L. J. [1903] 1 K. B. (p) The language of Collins at p. 167. In this class of (a«e3 M. R. is more guarded than that of nothing short of actual knowledge Romer and Math€w L. JJ. There will do if the thing dealt with is is no judicial discussion of the not in itself of a dangerous kind: authorities. Dixon v. Sell was not Bafea V. Batcv if Co. [1913] 3 even cited in argument. K. B. 351, 82 L. J. K. B. 9S3. CONDITION OF BUILDINGS. 513 able. It goes beyond the common doctrine of responsibility for servants, for the occupier cannot discharge himself by employing an independent contractor for the maintenance and repair of the structure, however careful he may be in the choice of that contractor. Thus the duty is described as being impersonal rather than personal. Personal diligence on the part of the occupier and his servants is immaterial. Thus 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. The separation of this doctrine from the ordinary law of negligence, which is inadequate to account for it, has been the work of recent times. As late as 1864 (q) the Lord Chief Baron Pigot (of Ireland), in a very careful judg- ment, confessed the difficulty of discovering any general rule at all. Two j-ears later a judgment of the Court of Common Pleas, delivered by Willes J., and confirmed by the Exche- quer Chamber, gave us an exposition which has since been regarded on both sides of the Atlantic as a leading authority (r). 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 unf enced shaft which was used in working hours for raising and lowering sugar. It was found as a fact that there was no want of reasonable care on the plaintiff's part, which amounts to saying that even to a careful person not already acquainted with the building the (q) SulHvaif v. Waters, 14 Ir. (r) Indermaur v. Dames (1866) C. L. R. 460. See, however, L. B. 1 C. P. 274, 35 L. J. C. P. Qiiarman v. Burnett (1840) 6 M. 184, 2 0. P. 311, 36 L. J. O. P. & W. at p. 510, 55 R. R. 717, 727, 181, constantly cited in later cases, where there is a suggestion of and reprinted in Bigelow L. C, the modern rule. j and Radcliflo and Miles, Cases on Torts. P. — T. 33 514 DUTIES OF INSURING SAFETY. danger was an unexpected and concealed one. The Court held that on the admitted facts the plaintiff was in the building as " a person on lawful business, in the course of fulfilling a contract in which both the plaintiff and the de- fendant 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 busi- ness, 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 a customer belongs includes persons 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 busi- ness 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 matter of fact " (s). 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 as such a place would reasonably be, having regard to the contrivances necessarily used in carrying on the business." On the facts they held that (s) L. R. 1 C. P. at p. 288. DUTY IN RESPECT TO STRUCTURES. 515 "' 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 defen- dant; and that 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 (t) is little more than a simple affirmation of this. It is important to observe the careful terms in which the law was here laid down by a very strong Court (it) . On the one hand a customer (to use the word as a laame of the whole class defined by the Court) is not entitled to find la state of positive safety, but onlj- to warning of unusual •danger incident to the nature and uses of the place. On the other hand the occupier is not entitled to create or main- tain a state of things so dangerous as to make the place, practically inaccessible or impassable, even if he gives warn- ing: unless, indeed, the warning amounts to a warning off, when there would be no question of an invitee's rights; for notice that the place is not safe to enter upon at all would be in substance a withdrawal of the invitation. We are not concerned here with other grounds on which this might or might not give just reason for complaint. The right arising from invitation as above defined may co-exist with a right arising from contract, as where the person entering on a building or structure has paid for admission. Such a person is entitled, without qualification, to find a. state of things as safe for the purpose in hand as it) L. R. 2 C. P. 311. Smith JJ. Cp. Mr. W. H. Griffith's (u) Willes J.'s colleagues wer« article, " Buty of Invitors," L. Q. Erie C J., Keating and Montague R. xxxii. at p. 256. 33(2; 516 DUTIES OF INSURING SAFETY. reasonably competent care and skill can make it. He may claim this by a warranty implied in the contract. In one respect it is more than an "invitee" coming on business can claim under the rule in htdermaur v. Dames; for im- plied warranties of this class exclude any question of what the warrantor knew or ought to have known {x). It is not clear that there is anything more in the substantive contents of the duty, notwithstanding suggestions which have been made to that effect. For a place is reasonably safe (provided that access and use are reasonably practicable at all) if adequate warning is given of any unusual risk that maj' be present, such as an open lift or trap-door. I can see no reason for thinking that the duty declared in IndePmaur v. Dames can be escaped by delegating its performance to an independent contractor. It is not stated in the terms which WiUes J. would have used if lie had meant to add this to the limitations he so carefully laid down . 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 he is entering and leaving {y). And the amount of care re- quired is so accurately indicated by Willes J. that littl& remains to be said on that score. The recent cases are important chiefly as showing in respect of what kinds of property the duty exists, and what persons have the same rights as a customer. "In both directions the law seems to («) Francis v. CoclcreU (1870) (j/) Chapman v. Itothwell (1858) L. R. 5 Q. B. 501, 39 L. J. Q. B. E. B. & E. 168, 27 L. J. Q. B. 291, Ex. Ch. The only exception 31S, 113 E. R. 588, treated as a ia of latent defects: ih., followed, very plain case, where a trap-door Madman v. Segar [1917] 2 K. B. was left open in the floor of a 325, 86 L. J. K. B. 1113, where passage leading to the defendant's Indermaur v. Barnes is carefully office, distinguished by MoCardie J. PERSONS ENTITLED TO SAFETY. 517 have become, on the whole, more stringent in the present generation. With regard to the person, one acquires this right to safety by being on the spot, or engaged in work on or about the property Avhose 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 directt or apparent benefit to the occupier from the particular transaction {z). Where gangways for access to ships in a dock were provided by the dock company, the company has heen held answerable for their safe condition to a person having lawful business on board one of the ships; for the providing of access for all such persons is part of a dock- owner's business; they are paid for it by the owners of the ships on behalf of all who use it (a) . A workman wasi ■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 workman'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 yfViS hurt; the dock-owner was held liable to him (&). It was contended that the staging had been delivered into the control of the ship-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 aU appliances provided by the dock-owner as incident to the use of the dock " (c). Simi- le) See Holmes v. iV. E. R. Co. 3 C. F. 326, 37 L. J. O. P. 2il7 (1869-71) L. R. 4 Ex. 254, in Ex. (Bovill C. J. and Byles J., duh. Ch. L. R. 6 Ex. 123, 40 L. J. Ex. Keating J.). 121; White v. France (1877) 2 (i) Heaven v. Pender (1883) 11 C. P. D. 308, 46 L. J. C. P. 823. Q. B. Div. 503, 52 L. J. Q. B. 702. (o) Smith V. London ^ St. (c) Per Cotton and Bowen L. JJ. Katharine Docks Co. (1868) L. R. 11 Q. B. Div. at p. 515. The 518 DUTIES OF INSURING SAFETY. larly, the owner of a building let in flats is answerable^ to the extent of non-apparent defects {d), for the safe con- dition of the common staircase to persons coming to da business with any of the tenants, by reason of his necessarily implied undertaking to keep the staircase in repair (e) . The duty of railway comijanies is the same as that of other occupiers (/); and so is, as regards due care in the conduct of the performance, that of a lessee of a theatre or the like, whether the performance is under his direct control or not(£f). A person lawfully entering on land, or into a building, in the discharge of a public duty or otherwise with justi- judpiient of Brett M. K. attempts to lay down a wider principle with which the Lords Justices did not agree. See p. , above. It must be taken as a, fact, though it is not clearly stated, that the defective condition of the rope might have been discovered, by reasonably care- ful examination when the staging was put "up. Cp. Elliott v. C. P. Roberts i' Co. [1916] 2 K. B. 518, 85 L. J. K. B. 1689, C. A. {d) Dobson v. Sorsley [1915] 1 K. B. 634, 84 L. J. K. B. 399, C. A. (e) Miller v. Hancock [1893] 2 Q. B. 177, C. A. Otherwise where there is no duty to the tenant ta repair: Lane v. Cox [1897] 1 Q. B. 415, 66 L. J. Q. B. 193, C. A., or to maintain safe conditions in other respects, such as lighting a staircase: Huggett v. Miers [1908] 2 K. B'. 278, 77 L. J. K. B. 710, C. A. A special agreement with a tenant to do certain repairs does not give a right of action in tort to any other inmate of the house who suffers damage by default of such repair: Cavalier v. Pope^ [1906] A. C. 428, 75 L. J. K. B. 609. Ace. as to an implied statu- tory undertaking: Ryall v. Kidwell # Son [1913] 3 K. B. 123, 82 L. J. K. B. 877. (/) Not a stricter duty: Narmait V. G. jr R. Co. [1915] 1 K. B. 584, 84 L. J. K. B. 598, C. A. But, with great respect, the cor- rectness of this decision, though unanimous, may be disputable^ having regard to the special privi- leges and duties of railway com- panies and other public bodies: see Mr. W. H. Griffith's criticism^ L. Q. R. xxxii. 255. {g) Cox V. Coulson [1916] 2 K. B. 177, 85 L. J. K. B. 1081, C. A., i.e., a paying spectator's contract does not include a positive warranty that reasonable care shall be used for the safety of the audience. This, of course, does not apply to the condition of the build- ing: Francis v. Cockrell, p. 516, above; and see the judgment of Swinfen Eady L. J. The facts were peculiar. DUTY IN RESPECT OF CAURIAGES, SHIPS, ETC. 519 fication, would seem to be in the same position as a customer and not to be a mere licensee, though such terms as " licence by authority of law " may sometimes be applied to these cases. We do not know of any English authority precisely in point, but the question has been raised in America. The possession (h) of any structure to which human beings are intended to commit themselves or their property, animate or inanimate, entails this duty on the occupier, or rather controller. It extends to gangways or staging in a dock, as we have just seen; to a temporary stand put up for seeing a race or the like {i), to carriages travelling on a railway or road (Zc), or in which goods are despatched (?); to ships (to) ; to wharves, in respect of the safety of the frontage for ships moored at or approaching the wharf (w); and to market-places (o). (A) No such duty lies on an owner who has not control of the place: Malone v. LasTcey [1907] 2 K. B„ 141, 76 L. J. K. B. 1134, C. A. (0 Francis v. Cockrell (1870) Ex. Oh. L. R. 5 Q. B;. 1S4, 501, 39 L. J. Q. B. 113, 291. The plaintiff had paid money for ad- miseion, therefore there was a duty ex contractu which made any ques- tion of the defendant's knowledge immaterial, but I can see no other distinction. (Ji) FoulJces V. Metrop. District S. Co. (1880) 5 O. P. Div. 157, 49 L. J. C. P. 361; Mofatt v. Bateman (1869) L. R. 3 P. C. 115; and th« duty seems to extend to the prop«r condition of all things necessarily used with or about th« carriage, such as the freedom from vice of the horse drawing it: White v. Steadman [1913] 3 K. B. 340, 349, 82 L. J. K. B. 846. (0 miiott V. Ball (1883) 15 Q. B. D. 315, 54 L. J. Q. B. 518. The Sieller of coals sent them to the buyer in a truck with a dan- gerously loose trap-door in it, and the buyer's servant in the course of unloading the truck fell through and was hurt. ()k) Bayn v. Culliford (1879) 4 C. P. Div. 182, 48 L. J. 0. P. 372. Control of a ship may be enough, after a very short time, to fix the charterer with liability for defects — at any rate in appliances imme- diately required for use— which could easily have been discovered: Marney v. Scott [1899] 1 Q. B. 986, 68 L. J. Q. B. 736, where the statement in the text is approved per Bigham J. at p. 992; 68 L. J. Q. B. 739. («) The Moorcock (1889) 14 P. Div. 64, 48 L. J. P. 73. (o) Lax V. Corporation of Dar- lington (1879) 5 Ex. Div. 28, 49 L. J. Ex. 106. 520 DUTIES OF INSURING SAFETY. In the case of a wharfinger he is bound to use reasonable care to ascertain whether the bed of the harbour or river adjacent is in a safe condition to be used by a vessel coming to discharge at his wharf at reasonable times having regard to the conditions of tide, the ship's draught of water, and the like. But this duty exists only so far as the river bed is in the wharfinger's possession or con- trol (p). The owner of a sunken wreck is bound at his peril to give reasonable warning to other vessels (g). 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 construction of the carriage itself, but as regards its fitness and safety in relation to other appliances (as the platform of a station) in connexion with which it is intended to be used (r). Where goods are lawfully shipped with the ship-owner's consent, it is the ship-owner's duty (even if he is not bound to the owner by any contract) not to let other cargo which will damage them be stowed in contact with them (.5). Owners of a cattle-market are bound to leave the market- place in a reasonably safe condition for the cattle of persons who come to the market and pay toll for its use {f). (p) The Calliope [1891] A. O. (r) FouU-es v. Metrop. District 11, 60 L. J. P. 28, reversing the R. Co. (1880) 5 C. P. Div. 157, decision of the C. A., 14 P. Div. 49 L. J. C. P. 361. 138, 58 L. J. P. 76, on a different (s) llaijn v. CulUford (1879) i view of the facta. The reasons C. P. Div. 182, 48 L. J. O. P. 372. given in The Moorcock, note («), (<) Lax v. Corporation of Dar- above, seem to be to some extent Ungton (1879) 5 Ex. Div. 28, 49 qualified by this, though the deci- L. J. Ex. 105 (the plaintiff's cow sion itself is approved by Lord was killed by a spiked fence round Watson [1891] A. C. at p. 22. a statue in the market-place). A (q) The Siwrk [1899] P. 74, 68 good summary of the law, as far T-i. 3. P. 22. as it goes, is given in the argument LIMITS OF THE DUTY. 521 In the various applications wo have mentioned, the duty- does not extend to defects incapable of being discovered by the exercise of reasonable care, such as latent flaws in metal («); though it does extend to all such as care and skill (not merely care and skill on the part of the defen- dant) can guard against {x). Again, when the builder of a ship or carriage, or the maker of a machine, has delivered it out of his own possession and control to a purchaser, he is under no duty to persons; using it as to its safe condition, unless the thing was in itself of a noxious or dangerous kind, or (it seems) unless he had actual knowledge (yi) 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 {z). Liability under the rule in Indermaur v. Dames (s) may; be avoided not only by showing contributory negligence in of Cave J. (then Q. C.) for the law a^ to the seller's implied plaintiff, 5 Ex. Div. at p. 31. warranty on the sale of a chattel The question of the daiig'er heing for a speeifio purpose; there the obvious was conside.'ed not open on warranty is absolute that the the appeal; if it had been, qu. as chattel is reasonably fit for that to the result, per Bramwell L. J. purpose, and there is no exception It has been held in Jlinnesota, of latent defects: Sattdall v. a889) that the owner of a building Xeivson (1877) 2 Q. B. Div. 102, frequented by the public is bound 46 L. J. Q. B. 257. not to allow a man of known (x) llijtnan v. Jye (1881) 6 dangerous temper to be employed Q. B. D. at p. 687. about the building: Bean v. St. (//) Op. Bates \. Batey ^ Co. Paul Union Depot Co., 29 Am. [1913] 3 K. B. 351, 82 L. J. K. B. Law Keg. 22. 963. («) Readhead v. Midland M. Co. (z) Winterbottom v. Jl'riffhl, 10 (1869) Ex. Ch. L. R. 4 Q. B. M. & W. 109, 62 E. R. 534; Collis 379; a case of contract between v. Seidell (1868) L. R. 3 C. P. carrier and passenger, but the 495, 37 L. J. C. P. 233; Losee v. principle is the same, and indeed Clute, 51 N. Y. 494. Similarly the duty may be put on either as to a repairer: Earl v. Lubbock ground, see Hipnan v. Nye (1881) [1905] 1 K. B. 253, 74 L. J. K. B. 6 Q. B. D. 685, 689, per LinJley J. 121, C. A. This does not however qualify the («) P. 513, above. 522 DUTIES OF INSURING SAFETY. the plaintiff, but by showing that the risk was as well known to him as to the defendant, and that with such knowledge he voluntarily exposed himself to it (6); but this will not excuse the breach of a positive statutory duty (c). Occupiers of fixed property are under a like duty towards persons passing or being on adjacent land by their invita- tion in the sense above mentioned, or in the exercise of aji indej)endent right. In Barnes v. Ward (') See a complaint by the (e^ His doctrine as to the bishops in 1257, Mat. Par. Chrou. making of new writs will be ilaj. (ed. Luai-d) vol. vi. p. 363. found on fols. 413—414 b. See \ew writs contrary to law are fol. 438 b for a writ invented by made in the Chancery without the William of Raleigh. In several consent of the council ot the other cases Bracton notices that realm. So under the provisions of the writ has been lately devised Oxford (1258) the Chancellor is to by resolution of the Court {de swear that he will seal no writs consUio curiae:), e.g., the Quare save writs ot course, without the Ejecit, fol.' 220. order of the king and of the coun- (rf) Fol. _ 102. cil established by the provisions. (e) Vol." i. p. 156. Britton's See Stubbs, Select Charters, Part 6, equivalent for maleficimn is ires- No. 4. pass. (J) Stat. 13 Edw. I. (1825) e. 24. (/) Fol. 120. FORMS OF ACTION. 573. headings seems to remain a sterile, alien theory. It does not deter- mine the arrangement pf the practical books, of the Eegister, the Old Natura Brevium, Fitzherbert's Natura Brevium, the Nova© Narrationes. Even Hale, when in his Analysis he mapped out the field of English law, did not make it an important outline. The truth seems to be that the most natural classification of writs- was quite different. It would give us as its two main headings — (a) Praecipe; (b) Si te fecerit secwrum: (a) In one class we lia,ve writs beginning with Praecipe quod reddat — faciat — permittat. The sheriff is to bid the defendant render (do, permit) something, and only if this command be in- effectual will the action proceed. To this class belong the writ of right and other proprietary real actions, also debt (g), detinue account, and covenant. (b) In the other class the writ supposes that there is already a. completed wrong and a perfect cause of action in the king's court. If the plaintiff finds pledges to prosecute, then the defendant must appear and answer. To this class belong the possessory assizes,. trespass and all the forms developed out of trespass, viz., case, assumpsit, trover. Much is made of this classification in a book which once was of good repute, a book to which Blackstone owed much. Sir Henry Finch's Discourse on Law (fe). The historical basis seems this: th& king's own court takes cognizance of a cause either because the king's lawful precept has been disobeyed/ or because the king's peace has been broken. But in order to assure ourselves that the line between breaches of contractual obligation and other causes of action cannot have been regarded as an elementary outline of the law by our mediaeval lawyers, we have only to recall the history of assumpsit. We are obUged to say either that at some moment assumpsit ceased to be an action ex maleficio and became an action ex contractu; or (and this seems historically the better way of putting it) that it was an action founded not on contract, but on the tort done by breach of some contractual or other duty voluntarily assumed. It must have been difficult to hold that the forms of personal action could be aptly distributed between tort and contract, when in the Eegister actions founded on non-performance of an assumpsit occurred, not (g') The writ of debt in Glan- in Debt; see lib. 10, cap. 5. Till, lib. 10, cap. 2, is just the writ (A) Editions in 1613, 1636,, of right with the variation that a 1678, and 1759. In the last of certain sum of money due is substi- these see pp. 257, 261, 284, 296. tuted for a certain quantity of Blackstone notices this classifica- land. There may be trial by battle tion in Comment, vol. iii. p. 274. 574 APPENDIX A. -even under the title of Case (for there was no such title) but under the title of Trespass mixed up with assaults and asportations, far away from debt and covenant (i). The same point may be illustrated by the difficulty which has been felt in modern times of deciding whether detinue was ex contractu or ex delicto. Bracton, fixing our terminology for all time, had said {h) that there was no actio in rem for the recovery of movables because the judgment gave the defendant the option ■of paying the value instead of delivering the chattel. The dilemma therefore of contract or tort was offered to claims to which, according to Eoman notions, it was inapplicable. But whether detinue was founded on contract or founded on tort, was often ■debated and never well eettled. During the last and the earlier part of the present century the fact that in detinue one might declare on a loss and finding (detinue sur trover) was taken to prove that there was not necessarily any contract between the parties {I). ■Opinion was swayed to the other side by the close relation between detinue and debt (m), a relation so close as to be almost that of identity, especially when debt was brought, not in the dehet and detinet, but in the detinet only (■») . A middle opinion was offered by the learned Serjeant Manning (o) that detinue sur bailment was ex contractu, and detinue pur trover was ex delicto; this would have allowed the question to turn on the choice made by the plain- tiff's pleader between two untraversable fictions. A decision of the •Court of Appeal unde;^ the Judicature Acts (p) shows that the difficulty cannot occur in its old form. We are no longer, even if once we were, compelled to say that all claims for delivery of a chattel must be ex contractu or all must be ex delicto, though even the theory that every such claim is either ex contractu or ex delicto has difficulties of its own, which might have been avoided were we free to say that such a claim may be 'actio in rem. (i) Eegistrum, fol. 109 6; writs (1846) 16 M. & W. 42, 16 L. J. for not cutting down trees and not Ex. 11, 73 E. R. 421. ■erecting a stone cross as promised, (m) Walker v. Needluim (1841) are followed immediately by a 4 So. N. E. 222; 3 Man. & Gr. writ for entering a warren and 557; Da7^by v. Lamb (1861) 11 carrying o£E goods by force and C. B. N. S. 423, 31 L. J. C. P. arms. 17, (i) Fol. 102 b. . (") " ^""^ indeed a writ of debt in the detinet only, is neither (/) KettJe V. Bromsall (1738) more nor less than a mere writ Willes 118; Mills v. Graham of detinue." Blaokst. Comm. iii. (1804) 1 B. & P. N. R. 140, 8 156. E. E. 767; Gledstane v. Hewitt (o) 3 Man. & Gr. 561, note. (1831) 1 Tyr. 445; Broadhent v. (p) Bryant v. Herbert (1878) Ledwarcl (1839) 11 A. & E. 209, 3 C. P. i)iv. 389, reversing .V. C. 52 E. E. 321; Clements v. Flight ibid. 189, 47 L. J. C. P. 670 FORMS OF ACTION. 575 Because of the wager of law assumpsit supplanted debt; so also for a long while the work of detinue was don« by trover. That trover was in form ex delicto seems not to have been doubted, still it often had to serve the purpose of a vindicatio. As Lord Mansiield said (g), " Trover is in form a tort, but in substance an action to try property. . . . An action of trover is not now ex maleficio, though it is so in form; but it is founded on property." Por these among other reasons the attempt to force the English forms into the Roman scheme was not likely to prosper. Never- theless the theory that the personal actions can be grouped under contract and tort made way as the procedural differences between the various forms were, in one way and another, obliterated. Blackstone states the theory (r), but does not work it into detail; following the plan which he inherited from Hale, he treats debt, covenant, and assumpsit as remedies for injuries affecting property, injuries affecting choses in action («) . In later books of practice the various forms are enumerated under the two headings ; detinue appears sometimes on one side of the line, sometimes on the other (<). Apart from the statutes which will be mentioned presently, little of practical importEince has really depended on the drawing of this line. The classification of the personal actions has been discussed by the Courts chiefly in three contexts. 1. As to the joinder of actions. We find it said at a compara- tively early day that " causes upon contract which are in the right and causes upon a tort cannot be joined " (m) . But the rules regu- lating this matter were complicated, and could not be reduced to this simple principle. In the main they turned upon those proce- dural differences which have been noticed above. Thus it was said that the actions to be joined must be such as have the same mesne process and the same general issue, also that an action in which, apart from statute (a;), the defendant was liable to fine, could not be joined in one in which he could only be amerced. Assumpsit could not be joined with debt; on the other hand debt (?) HamUy v. Trott (1776) 1 wrongs." Comm. iii. 117. Cowp. 371, 373, 374. (s) Ibid. 153. (r) " Personal actions are such (0 Thus in Tidd's Practice whereby a man claims a debt, or (chap, i.) detinue is treated as personal duty, or damages in lieu ex delicto; in Chitty's Pleading thereof; and likewise whereby a (chap, ii.) it is classed as ex con- man claims a satisfaction in dam- iractu, but hesitatingly, ages for some injury done to his («) Senison v. Ealjihson (1682) person or property. The former 1 Vent. 365, 366. are said to be founded on con- {x) 5 & 6 W. & M. o. 12, tracts, the latter upon torts or abolishing the capiatur pro fine. 576 APPENDIX A. could be joined with detinue (jr). This matter once very fertile of dispute has become altogether obsolete. 2. As to the survival of actions against and for personal repre-' sentatives. Here again it may be doubted whether the line of practical importance has ever been that between contract and tort, though the latter has often been mentioned in this context. (a) If we look back far enough we find that it was only by slow degrees that tha executor came to represent the testator in at all a general way (z) . It was, for instance, a rule that the executor could not be sued in debt if the testator could have waged his law. At one time ^nd before the development of assumpsit, this must have meant that the ■executor could hardly ever be sued for money due upon a simple contract. In Coke's day it was still arguabler that assumpsit would not lie against the executor (a), and not until the contrary had been decided was it possible to regard the executor as bearing in a general way the contractual liabilities of the testator. On the other hand it seems to have been quite as early established that the executor could be made to answer for some causes of action which were not breaches of contract, i.e., where the estate had been increased by the proceeds of the testator's wrong-doing (6). But so long as the forms of action existed they were here of importance. Thus the executor could not have been sued in trespass or trover though the facts of the case were such that he could have been sued in assumpsit for money had and received (c). Trespass, it may be remembered, had but very gradually become a purely civil action; to start with it was at least in part a criminal proceeding: so late as 1694 the defendant was, in theory, liable to fine and imprison- ment ((Z) ; criminal proceedings founded on the testator's misconduct could not be taken against the executor. («/) The learning on this topic Case (temp. Eliz.) Sav. 40. See will be found in the notes to remarks on this case and gene- Coryton v. Lithebye, 2 Wms. rally on this piece of history by Saund. 117 d. See also the ob- Bowen L. J. in Phillips v. Hoin- servations of Bramwell L. J. in iray, 24 Ch. Div. 439, 457, 52 L. J. Bryant v. Eerbert, 3 0. P. Div. Ch. 833. 389-391. (o) Hambly v. Trott, I Cowpcr (z) See Bracton, fol. 407 b. 371; Phillips v. Ilomfray, ubi sup. (a) Pinohon's Case (1611) 9 Co. (d) Stat. 5 & 6 W. & M. c. 12. Eep. 86 6. _ By this time the pro- The penal character of the writ vince within which wager of law of trespass is well shown by the was permitted had been so much clause of the Statutum Walliae narrowed by judicia,! decision that introducing that writ into Wales. it had become possible to regard " Justitiarius ... si invenerit as merely procedural the rule as reum culpabilem, castiget eum per to debt against executors stated prisonam vel per redemptionem above. vel per misericordiam, et per (6) Sir Henry Sherrington's dampna laeso restituenda se?un- FORMS OF ACTION. 577 (b) As regards the other question, what actions survive for an executor or administrator, we find it early said that at common, law actions in contract do survive while actions in tort do not (e) ; but already in 1330 a statute, which was very liberally construed, had given the executor some actions which undoubtedly were the outcome of tort (/) . On the other hand it has been held even of late years that (apart from all questions as to real estate) an actioa for breach of contract does not necessarily survive for or against the personal representative; the cause of action given by a breach of promise to marry is not as a general rule one for which representa- tives can sue or be sued (g). But the present stats of the law as to the survival of actions is discussed above (J^). 3. Several discussions as to the line between contract and tort were occasioned by the rule that while joint contractors must be sued jointly the liability of joint tort-feasors is joint and several (i) . The earliest authority draws the distinction between " praecipe quod reddat " and debt on the one hand, and " trespass et huiusmodi " on the other (fc). But the antithesis of contract and tort crops up in the seventeenth century (I) . A decision (m) of Lord Mansfield in 1770, that the objection to non-joinder of all joint contractors as defendants can only be taken by plea in abatement, deprived this matter of much of its importance. Still the question whether there has been breach of a joint contract, or a tort for which several are liable severally as well as jointly, is of course a question which may still arise and be difficult to answer («). Lastly we come to the statutory adoption of the theory that every personal action must be founded either upon contract or upon tort. The first statute which recognized this doctrine was seemingly the County Courts Act, 1846 (o). Here, in a section dealing with costs, the antithesis is " founded on contract," " founded on tort." The County Courts Act of 1850 (p) fell back on an enumeration of the diim qualitatem et quantitatem I'aurjiian, 1 Wms. Saund. 291. delicti, ita quod caatigatio ilia sit {k) Br. Abr. Responder, 54. aJiis in exemplum, et timorem (I) Boson v. Sandford, 3 Salk. praebeat delinquendi." 203; 1 Shower 101; llich v. Pil- (e) Le Mason v. Dixon (1627) Jcingfon, Carth. 171; Child v. W. Jones, 173. Sands, Carth. 294; Bastard v. (/) Stat. 4 Edw. III. 0. 7. De Hancock, Carth. 361. bonis asportatia in vita testatoris. (m) liice v. Shute, 5 Burr. 2611. (jr) Chamberlain v. Williamson (m) As to the possibility of the (1814) 2 M. & S. 408, 15 R. R. same act or default answering both 295; Finlay v. Chirney, 20 Q. B. descriptions, see the last chapter Div. 494, 57 L. J. Q. B. 247. of the text. (JO P. 61. (o) 9 & 10 Vict. c. 95, s. 129. (0 See notes to Cabell v. (ji) 13 & 14 Vict. c. 61, a. 11. P. -T. 37 678 APPENDIX A. forms of action, placing covenant, debt, detinue, and assumpsit in one class, and trespass, trover, and case in another class. The Common Law Procedure Act, 1852 {q), assumes in its schedule of forms that actions are ipither " on contracts," or " for -wrongs inde- pendent of contract " ; but sect. 74 admits that " certain causes of action may be considered to partake of the character both of breaches of contract and of wrongs " ; some very needless litigation might have been saved had a similar admission been made in other statutes. By the County Courts Act of 1856 (r), costs in a certain eveniti were made to depend upon the question whether the action was " an action of contract." By the Common Law Procedure Act of 1860 (s), costs in a certain event were made to depend on the question whether the action was " for an alleged wrong." A section of the County Courts Act, 1867 (i), drew a distinction as to costs between actions " founded on contract," and actions " founded on tort." Lastly the County Courts Act of 1888 in several of its sectaons^ draws a distinction between " an action of contract " and " an action of tort " (m), while elsewhere {x) it contrasts an action " founded on contract " with one " founded on tort." The practical upshot, if any, of these antiquaxian remarks is that the courts of the present day are very free to consider the classifica- tion of causes of action without paying much regard to an attempt to classify the now obsolete forms of action, an attempt which was never very important or very successful; an attempt which, as we may now think, was foredoomed to failuiie. (?) 15 & 16 Vict. c. 76. («) 51 & 52 Vict. c. 43, ss. 62, (r) 19 & 20 Vict. c. 108, s. 30. 65, 66. (s) 23 & 24 Vict. e. 126, s. 34. (x) 51 & 52 Vict. c. 43, s. 116. (t) 30 & 31 Vict. c. 142, ». 5. ( 579 ) APPENDIX E. I. TEADE DISPUTES ACT, 1906. (6 Edw. 7, 0. 47.) An Act to provide for the regulation of Trades Unions and Trade Disputes. [21st December, 1906.] Be it enacted by the King's most Excellent Majesty, by and -with, the advice and consent of the Lords Spiritual and Temporal, and ■Commons, in this present Parliament assembled, and by the authority of the same, as follows: — ■ Amendment of Law of Conspiracy in the Case of Trade Disputes. 1. The following paragraph shall be added as a new paragraph after the first paragraph of section three of the Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86):— "An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtheranoei ■of a trade dispute, not be actionable unless the act, if done ■without any such agreement or combination, would be actionable." Peaceful Picketing. 2. — (1.) It shall be lawfiil for one or more persons, acting on iheir own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place ■where a person resides or -works or carries on business qr happens to be, if they so attend merely for th« purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working. (2.) Section seven of the Conspiracy and Protection of Property Act, 1875, is hereby repealed from " attending at or near " to the •end of the section. 37(2) 580 APPENDIX B. Eemoval of Liability foe Intebfbring with another Person's Business, &c. 3. An act done by a person in contemplation or furtherance of a trade dispute (o) shall not be actionable on, the, ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills. Prohibition of Actions of Tort against Trade Unions. 4. — (1.) An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by oi' on behalf of the trade union, shall not he entertained by any court. (2.) Nothing in this section shall affect the Kability of the trustees of a trade union to be sued in the events provided for by the Trades Union Act, 1871 (34 & 35 Vict. c. 31), section nine,, except in respect of ,any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute. Short Title and Oonsteuction". S. — (1.) This Act may be cited as the Trade Disputes Act, 1906, and the Trade Union Acts, 1871 and 1876, and this Act may be cited together as the Trade Union Acts, 1871 to 1906. (2.) In this Act the expression "trade union" has the same meaning as in the Trade Union Acts, 1871 and 1876, and shall include any combination as therein defined, notwithstanding that such combination may be the branch of a trade union. (3.) In this Act and in the Conspiracy and Protection of Property Act, 1875, the expression "trade dispute" means any dispute between employers and workmen, or between workmen and work-, men, which is connected with the employment or non-employment or the terms of the employment, or with the conditions of labour, of any person, and -the expression " workmen " means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises; and, in section three of the last-mentioned Act, the words " between employers and workmen " shall be repealed. (a) Conway v. Wade [1909] A. C. 506, 78 L. J. K. B. 1025. employers' liability act, 1880. 681 II. EMPLOYEES' LIABILITY ACT, 1880. (43 & 44 Vict. c. 42.) An Act to extend and reg-ulate the Liability of Employers to make Compensation for Personal Injuries suffered by Workmen in their service. [7th September, 1880. J Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: — Amendment of Law. 1. Where after the commencement of this Act personal injury is caused to a workman, (1.) By reason of any defect (a) in the condition of the ways (6), works (c), machinery, or plant (d) connected with or used in the business of the employer (e); or (o) This must be a defect show- ing some negligence of the em- ployer: If'alsh, V. Whiteley (1888) 21 Q. B. Div. 371, 57 L. J. Q. B. 586. " ' Defect ' means the ab- sence of fitness to secure safety in the operation for which the machi- nery is used": per Kennedy, J., Stanton v. Sorutton (1893) 62 L. J. Q. B. atp. 408. (i) An object left sticking out over a way is not a defect in the condition of the way: ilcGiffin rv. Palmer's Shipbuilding Co. (1882) 10 Q. B.D. 5, 52 L. J. Q. B. 25. " Defect in condition " includes un- fitness for safe use, whether from original fault of structure or want of repair; Ileske v. Somuelsoit (1883) 12 Q. B. D. 30, 53 L. J. Q. B. 45; or insufficiency of any part of the plant for the particular purpose it is being used for: Cripps V. Judge (1884) 13 Q. B. Div. 583, 53 L. J. Q. B. 517; but not mere negligent user: Willetts V. Watt [1892] 2 Q. B. 92, 61 L. J. Q. B. 540, O. A. Any space which workmen have to pass over may be a "way": ib. As to sufficiency of evidence on this point, Faley v. Garnett (1885) 16 Q. B. D. 52. A dangerous or im- proper collocation of things not defective in themselves may be a defect: Wehlin v. Ballard (1886) 17 Q. B. D. 122, 55 L. J. Q. B. 395; but see Thomas v. Quarter- maine, 18 Q. B. Div. 685; and qu. whether Weblin v. Ballard be right, per Bowen L. J. at p. 699. (c) Leaving a, wall which is under repair insecure for want of proper shoring up may be a defect in the condition of works within this sub-section: Brannigan v. Robinson [1892] 1 Q. B. 344, 61 L. J. Q. B.202. {d) " Plant " may include horses, and vice in a horse is a " defect " : Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7. As to an employer's right to recover over from a person who has sup- plied defective plant see Jloivbroi/ V. Merryweather [18951 2 Q. B. 640, 65 L. J. Q. B. 50, C. A. (e) The words of tliis section do not apply to ways, works, &c. which are in course of construe- 582 APPENDIX B. (2.) By reason of the negligenoe of any person in the service of the employer who has any superintendence entrusted to him (/) whilst in the exercise of such superintendence (gr) ; or (3.) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform (A), and did conform, where such injury resulted from his having so oonfoxTned (i) ; or (4.) By reason of the act or omission of any person in the service of the employer done lor made in obedience to the rules or byelaws of the employer, or in obedience to particular instructionfi given by any person delegated with the authority of the employer in that behalf; or (5.) By reason of the negligenoe of any person in the service of the employer who has the charge or control {k) of any signal, points, locomotive engine, or train upon a rail- way (Z), the workman, or in case the injury results in death, the legal per- sonal representatives of the workman, and any persons entitled in case of death (m), shall have the same right of compensation and tion, and not yet sufficiently com- 14 Q. B. D. 68, 54 L. J. Q. B. pleto to be used in the business; 202. The order need not have been Rowe V. Finch (1886) 17 Q. B. negligent in itself, nor the sole or D. 187. They do apply to "an immediate cause of the injury: arrangement of machinery and Wild v. Waijgood [1892] 1 Q. B. tackle which, although reasonably 783, 61 L. J. Q. B. 391, C. A. sale for those engaged in working {K) The " charge or control " it, is nevertheless dangerous to need not be complete or exclusive: workmen employed in another de- MoGord v. Cmnmell [1896] A. 0. partment of the business": Smith 57, 65 L. J. Q. B. 202. The duty v. Baker [1891] A. C. 325, 354, 60 of oiling and cleaning points is not L. J. Q. B. 683, per Lord Watson. "charge or control": Gibbs v. G. It is not material whether the W. R. Co. (1883-4) 11 Q. B. D. plant or tackle in use is or is not 22, 12 Q. B. Oiv. 208, 53 L. J. Q. the employer's property: Biddle v. B. 543. Any one having authority Mart [1907] 1 K. B. 649, 76 L. J. to set a line of carriages or trucks K. B. 418, C. A. in motion, by whatever means, is (/) See Interpretation clause, in charge or control of a train: sect. 8. Cox V. G. W. E. Co. (1882) 9 {g) Osborne v. Jackson (1883) Q. B. D. 106. 11 Q. B. D. 619. (0 "Railway" has its natural Qi) Snowden v. Baynes (1890) sense, and is not confined to rail- 25 Q. B. Div. 193, 59 L. J. Q. B. ways made or used by railway 325. companies: Doughty v. Firbank (i) Orders or directions within (1883) 10 Q. B. D. 358, 52 L. J. the meaning of this sub-section Q. B. 480. need not be express or specific: (m) A workman can bind him- Millward v. Midland S. Co. (1884) self by contract with his employer employers' liability act, 1880. 583 remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work (n) . Exceptions to Amendment op Law. 2. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases; that is to say, (1.) Under sub-seotion one of section one, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition (o). (2.) Under sub-section four of section one, unless the injury resulted from some impropriety or defect in the rules, byelaws, or instructions therein mentioned; provided that where a rule or byelaw has been approved or has been accepted as a proper rule or byelaw by one of Her Majesty's Principal Secretaries of State, or by the Board of Trade or any other department of the Government, under or by virtue of any Act of Parliament, it shall not not to claim Gompenaation under risk was created by breach of a the Act, and such contract is a bar statutory duty: Baddeley v. Earl to any claim under Lord Camp- Granville (1887) 19 Q. B. D. 423, bell's Act: Griffiths v. Dudlet/ 56 L. J. Q. B. 501; and a work- (1882) 9 Q. B. D. 357, 51 L. J. man's continuing to work with Q. B. 543. If made for a distinct defective plant after he has com- and substantial consideration, it plained of the defect to the em- may be for an infant worker's ployer or foreman, who has re- benefit so as to be binding on him : fused or neglected to amend it, is Clements v. L. ^ N. W. R. Co. not conclusive to show voluntary [1894] 2 Q. B. 482, 63 L. J. Q. B. acceptance of the risk: Yarmouth 837, C. A. V. France (1887) 19 Q. B. Div. (») This evidently means only 647, 57 L. J. Q. B. 7; Smith v. that the defence of "common lem- Baker [1891] A. O. 325, 60 L. J. ployment " shall not be available Q. B. 683, see pp. 166-168, above, for the master; not that the facts A special clause in a contract and circumstances of the work- excluding the employer's liability man's employment are not to be under some particular head of this considered, e.g., if there is a ques- section does not exclude the general tionol contributory negligence. Nor rule of common employment in a does it exclude the defence that case where it is otherwise appli- the workman in fact knew and ac- c^ble: Burr v. Theatre Moyal, cepted the specific risk: Thomas v. Brury Lane [1907] 1 K. B. 544, Quartermaine (1887) 18 Q. B. Div. 76 L. J. K. B. 459, C. A. 685, 56 L. J. Q. B. 340; but such (o) See Kiddle v. Lovett (1885) defence is not admissible where the 16 Q. B. D. 605, 610. 584 APPENDIX B. be deemed for the purposes of this Act to be an improper or defective rule pr byelaw. (3.) In any case where the "workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence (p). Limit op Sum recoverable as Compensation. 3. The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings (g), during the three years preceding the injury, of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury. Limit op Time poe EECovEEr of Compensation. 4. An action for the recovery under this Act of compensation for an injury shall not be maintainable unless notice (r) that injury has been sustained is given within six weeks, and the action is coonmenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death: Provided always, that in case of death, the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice. Money payable under Penalty to be Deducted prom Compensation under Act. 6. There shall be deducted from any compensation awarded to any workman, or representatives of a workman, or persons claiming (p) This sub-sestion creates a 8 Q. B. D. 116, 51 L. J. Q, B. new and special statutory defence, 112, and must contain in writing se& Weblin v. Ballard (1886) 17 all the particulars required by Q. B. p. 122, 125, 55 L. J. Q. B. sect. 7: Keen v. MUlwall Dock Co. 395. It does not enlarge by im- (188.2) 8 Q. B. Div. 482, 51 L. J plication the right of action under Q. B. 277. Where the work was sect. 1: Thomas v. Quartermaine, done in the execution of any public note («), last page. duty or authority, g„. whether ^^^}.-l°f. Jw^^'^"'*''' ^"""^^y the requirement of notice is not n"' J o^n^ ^" ^^^' ^^ ^- -^^ abolished by the Public Authorities y-. n" mu- .. Protection Act, 1893, s. 2, sub- ()■) Ihis notice must be in a. (c). writing: Moyle v. Jenkins (1881) employers' liability act, 1880. 585 by, under, or through a workman in respect of any cause of action arising under this Act, any penalty or part of a penalty which may have been paid in pursuance of any other Act of Parliament to such workman, representatives, or persons in respect of the same cause of action; ,and where an action has been brought under this Act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman for compen- sation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or part of a . penalty under any other Act of Parliament in respect of the same cause of action, such workman, representatives, or person shall not be entitled thereafter to receive any penalty or part of a penSjlty under any other Act of Parliament in respect of the same cause of action. Trial op Actions. 6. — (1.) Every action for recovery of compensation under this Act shall be brought in a county court (s), but may, upon the appli- cation of either plaintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed (i). (2.) Upon the trial of any such action in a county court before the judge without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation. (3.) For the purpose of regulating the conditions and mode of appointment and lemuneration of such assessors, and all matters of procedure relating to their duties, and also for the purpose of consolidating any actions under this Act in a county court, and otherwise preventing multiplicity of such actions, rules and regula- tions may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions in county courts. " County court " shall, with respect to Scotland, mean the " SheriS's Court," and shall, with respect to Ireland, mean the " Civil Bill Court." In Scotland any action under this Act may be removed to the (s) Want of notice under s. 5 is 1856. That section applies only a statutory defence which must he to actions which might have been S leaded according to the County brought in the Superior Court: ourt Rules: Conroy •v. Peacock Meg. v. Judge of City \of London [18971 2 Q. B. 6, 66 L. J. Q. B. Court (1885) 14 Q. B. Div. 905, 425. " 54 L. J. Q. B. 330. As to grounds (J,) Proceedings in the county for removal, see jt/w^rfay v. iT^omes court cannot be stayed under Ironworks Co. (1882) 10 Q. B. D. sect. 39 of the County Courts Act, 59, 52 L. J. Q. B. 119. 586 APPENDIX B. Court of Session at the instanoe of either party, in the manner (provided by, and subject to the conditions prescribed by, section nine of the SherifPs Courts (Scotland) Act, 1877 (40 & 41 Vict: c. 50). In Scotland the sheriff may conjoin actions arising out of the same occurrence or cause of action, though at the instanoe of different parties and in respect of different injuries. Mode of seeving Notice of Injuby. 7. Notice in respect of an injury under this Act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injux'y (m) and the date at which it was sustained, and shall be served on the employer or, if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business; and, if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post; and, in proving the service of such notice, it shall be suflScient to prove that the notice was properly addressed and registered. Where the employer is a body of persons corporate or unindor- porate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, ajay one of the offices of such body. A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy (x) therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or in- accuracy was for the purpose of misleading. Definitions. 8. For the purposes of this Act, unless the context otherwise requires, — The expression " person who has superintendence entrusted to (_u) It need not state the cause of L. J. Q. B. 452. action with legal accuracy: Clark- (a;) Stone v. Hyde (1882) 9 sm V. Musgrave (1882) 9 Q. B. D. Q. B. D. 76, 51 L. J. Q. B. 452; 386, 51 L. J. Q. B. 525; cp. Stone Carter v. Drysdale, 12 Q. B. D. V. ayde (1882) 9 Q. B. D. 76, 51 91. employers' liability act, 1880. 587 him " means a person whose solo oi' principal duty is that of superintendence, and who is not ordinarily engaged in manual labour (y) : The expression " employer " includes a body of persons corporate or unincorporate: The expression " workman " means a railway servant and any person to whom the Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90), applies (z). (y) Shaffers v. General Steam Navigation Co. (1883) 10 Q. B. D. 356, 52 L. J. Q. B. 260; cp. and dist. Osborne v. Jackson (1883) 11 Q. B. D. 619; Kellard v. Rooke (1888) 21 Q. B. Div. 367, 57 L. J. Q. B. 599. The difference between a foreman who sometimes lends a hand and a workman who some- times gives directions is in itself, of course, a matter of fact. (a) " Any person [not being a domestic or menial servant] who, being a labourer, servant in hus- bandry, journeyman, artificer, handicraftsman, miner, or other- wise engaged in manual labour, whether under the age of twenty- one years or above that age, has entered into or works under a contract with an employer [see Fitzpatriok v. Evans ^ Co. [1902] 1 K. B. 505, 71 L. J. K. B. 302, C. A.], whether the contract be made before or after the passing of this Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour": 38 & 39 Vict. c. 90, s. 10. This definition does not include an omni- bus conductor: Morgan v. London General Omnibus Co. (1884) 13 Q. B. Div. 832, 53 L. J. Q. B. 352. Nor the driver of a tram- car: Cook V. N. Metrop. Trnm- u-ays Co. (1887) 18 Q. B. D. 683, 56 L. J. Q. B. 309 (but it does include a motor omnibus driver who is required to do road re- pairs: Smiths. Associated Omnibus Co. [1907] 1 K. B. 916, 76 L. J. K. B. 571). Nor a grocer's assis- tant in a shop, though he makes up and carries parcels in the course of his employment: Bound v. Law- rence [1891] 1 Q. B. 226, 61 L. J. M. C. 21, C. A. (on the Employers and Workmen Act), Nor a pot- man in a public-house, whose duties are substantially of a menial or domestic nature r Pearce v. Lansdowne (1892) 62 L. J. Q. B. 441. It does include a driver of carts, &c., who also has to load and unload the goods carried: Yarmouth v.^ France- (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7. The Act of 1875 did not apply to seamen or apprentices to the sea service, sect. 13. By 43 & 44 Vict, c. 16, s. 11, it was extended to them, but not ao as to affect the definition of " workman " in other Acts by reference to the persons to whom the Act of 1875 applies. Seamen, therefore, are not within the Employers' Liability Act. A man employed on a sailing vessel in navigable waters such as the estuary of the Thames may be a seaman without literally going to sea: Corbett v. Pearce [1904] 2 K. B. 422, 73 L. J. K. B. 885. But the word " seaman " is not tO' be construed by reference to the Merchant Shipping Act so as to include, for example, a rigger casually employed about moving a ship in dock: Macbeth §■ Co. v. Chislett [1910] A. O. 220, 7» L. J. K. B. 376. 588 APPENDIX B. Commencement of Act. 9. This Act shall not come into operation until the first day of •January, one thousand eight hundred and eighty-one, which date is in this Act referred to as the commencement of this Act. Shoet Title. 10. This Act may be cited as the Employers' Liability Act, 1880, and shall continue in force till the thirty-first day of December, one thousand eight hundred and eighty-seven, and to the end of the then next session of Parliament, and no longer, unless Parliament shall otherwise determine, and all actions commenced under this Act before that period shall be continued as if the said Act had not expired. [The Act has been continued from time to time since 1887. Many proposals for amendment of it have been made, but none has become law. The Workmen's Compensation Act, 1897, did not repeal or amend this Act, but in practice almost superseded its operation as regards the employments to which the later Act applied. Decisions upon the Act of 1880 have become infrequent; there have been very few since the extension of the Workmen's Compensation Act in 1906.] ( 589 ) APPENDIX C. STATUTES OP LIMITATION. An Acte for lymytacion of Accions, and for avoyding of Suits in Lawe. (21 James I. c. 16.) S. 3. And be it further enacted, that all acoions of trespas quare clausum fregit, all acoions of trespas, detinue, accion sur trover and replevyn for taking away of goods and cattell, all acoions of accompt and uppon the case, other than such accompts as concerne the trade of merchandize betweene marohant and marchant, their factors or servants, all acoions of debt grounded upon any lending or contract without specialtie, all accions for arrerages of rents, arid all aocions of assault menace battery wounding and imprisonment, or any of them which shalbe sued or brought at any tyme after the end of this present session of parliament shalbe commenced and sued within the tyme and lymytacion hereafter expressed, and not after (that is to sale) the said accions upon the case (other than for slander), and the said aocions for accompt, and the said accions for trespas debt detinue and replevin for goods or cattell, and the said accion of trespas, quare clausum fregit, within three yeares next after the end of this present session of parliament, or within sixe yeares next after the cause of such accion or suite, and not after; and the said aocions of trespas of assault battery wounding^ imprisonment, or any of them, within one yeare next after the end of this present session of parliament, or within foure yeares next after the cause Of such aooions or suite, and not after; and the said acoions uppon the case for words, within one yeare after the end of this present session of parliament, or within two yeares next after the words spoken, and not after. . . . S. 7. Provided neverthelesse, and be it further enacted, that if any person or persons that is or shalbe intituled to any suoh accion 590 APPENDIX C. of trespas detinue aocion sur trover replevin accions of acoompts aooions of debt, aooions of trespas for assault menace battery •wounding or imprisonment, aooions uppon the case for words, bee or sbalbe at the tyme of any such cause of accion given or accrued, fallen or come within the age of twentie-one yeares, feme covert; non composs mentis, imprisoned or beyond the seas, that then such person or persons shalbe at libertie to bring the same accions, soe as they take the same within such times as are before lymitted, after their looming to or being of full age, discovert, of sane memory, at large and retorned from beyond the seas, as other persons having no such impediment should have done. An Act for the Amendment of the Law amd the hetter Advance- ment of Jv,stioe. (4 & 5 Anne, o. 3) (o). S. 19. And be it further enacted, by the authority aforesaid, that if any person or persons against whom there is or shall be any such cause of suit or action for seamen's wages, or against whom there shall be any cause or action of trespass, detinue, action sur trover ■or replevin for taking away goods or cattle, or of action of account, or upon the case, or of debt grounded upon any lending or contract, •without speciality of debt for arrearages of rent, or assault, menace, battery, wounding and imprisonment, or any of them, b© or shall be at the time of any such cause of suit or action, given or accrued, fallen or come beyond the seas, that then such person or persons, •who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person or persons after their return from beyond the seas (so as they take the same after their return from beyond the seas), within such times as are respectively limited for the bringing of the said actions before by this Act, and by the said other Act made in the one and twentieth year of the reign of King James the First. (o) So in the Statutes of the Eealm and Revised Statutes; c. 16 in other editions. STATUTES OP LIMITATION, 591 An Act to amend the Laws of Englamd and Irelamd affecting Trade and Commerce. (Meecantile IjAW Amendment Aot, 1856, 19 & 20 Vict. 0. 97, s. 12.) No part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of Her Majesty, shall be deemed to be beyond seas within the meaning of the Act for the fourth and fifth years of the reign of Queen Anne, chapter sixteen (6), or of this Act. (J) This is chap. 3 in the Statutes of the Realm. ( 592 ) APPENDIX D. CONTEIBUTOEY NE&LIGENCE IN EOMAN LAW. Contributory negligence, and the allied topics considered in the text, did not escape the Eoman lawyers, but they are treated only in an incidental manner and no complete theory is worked out. The passages bearing on the point in the Digest " Ad legem Aquiliam " (ix. 2) are the following: — L. 9 § 4 (Ulpian). Sed si per lusum iaculantibus servus fuerit oocisus, Aquiliae locus est: sed si cum alii in campo iaoularentur servus per eum locum transierit, Aquilia oessat, quia non debuit per campum iaculatorium iter intempestive faoere. Qui tamen data opera in eum iaoulatus est, utique Aquilia tenebitur. It is not clear whether the words " data opera " are intended to cover the case of reckless persistence in the javelin-throwing after the danger to the slave who has put himself in the way is manifest. There can be no doubt however that Ulpian would have considered such conduct equivalent to dolus. With this explanation, the result coincides with the English rule. L. 11, pr. (Ulpian). Item Mela scribit, si, cum pila quidam luderent vehementius quis pila percussa in tonsoris manus earn deiecerit et sic servi quem tonsor ha,bebat [al. radebat] gula sit praeoisa adiecto cultello: in quocumque eorum culpa sit, eum lege Aquilia teneri. Prooulus in tonsore esse culpam: et sane si ibi tondebat ubi ex consuetudine ludebatur vel ubi transitus frequens erat, est quod ei imputetur; quamvis nee illud male dicatur, si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere. Mela seems to have thought it a question of fact, to be determined by closer examination of the circumstances, whether the barber, or the player, or both, were in culpa. Probably the question he mainly considered was the proper form of action. Proculus held the barber only to be liable. Ulpian agrees that there is negligence jn his shaving a customer in a place exposed to the accident of a stray CONTRIBUTORY NKGLIGENCE IN ROMAN LAW. 593 ball, if the evidence shows that he did so with notice of the danger; but he adds that the customer, if he in turn chose to come and be shaved in a dangerous place, has olily his own want of care to thank for his hurt. To attain this result it is assumed that the danger is equally obvious to the barber and the customer; it is likewise expressly assumed, as a condition of imputing culpa to either of them, that the game is carried on in an accustomed and convenient place. Given those facts, English law would arrive at the same result in a slightly different form. The players would not be bound to anticipate the rashness of the barber, and the barber, though bound t-o provide reasonable accommodation for his customers, would not be bound to warn them against an external source of risk as obvious to them as to himself. It 'would therefore probably be held that there was no evidence of negligence at all as against either the players or the barber. If the game, on the other hand, were not being carried on in a lawful and convenient place, not only the player who struck the ball would be liable, but probably all concerned in the game. Bracton, fo. 1366, writing of criminal liability for homicide, and probably having this passage before him, gives a similar example among oases of misadventure. For the unmeaning " consortis " which istands in the printed text we should read " tonsoris," which is indeed given in two good MSS. in the library of Lincoln's Inn. L. 28 (Paulus). Pr. (A man who makes pitfalls in a highway is liable under the lex Aquilia for consequent damage; otherwise if in an accustomed place.) § 1. Haec tamen actio ex causa danda est, id est si neque denuntiatum est neque scierit aut providere potuerit: et multa huiusmodi deprehenduntur, quibus summovetur petitor, si evitare periculum pofcerat. This comes very near the language of our own authorities. L. 31 (Paulus). Si putator ex arbore ramum cum deiceret vel machinarius hominem praetereuntem occidit, ita tenetur si is in publicum decidat nee ille proclamavit, ut casus eius evitari possit. Sed Mucins etiam dixit, si in private idem accidisset, posse de culpa agi: culpam autem esse, quod cum a diligente provideri poterit (a) non esset provisum, aut turn denuntiatum esset cum periculum evitari non possit. Cp. Blackst. Comm. iv. 192, supra, p. 460. Here a person who is hurt in spite of the warning is not necessarily negligent; as if (a) Sio iUS. rior., which Latinity would require poftiis,set. Mominsen's text reproduces, but it ''Possit" ad fin. should obviously is not Latin. Potuerit is probably be " posset," and ia so corrected in the true reading, though Augustan other edd. P. — T. 38 594 APPENDIX D. for example lie is deaf and cannot hear the warning; but this is immaterial; for the ground of the other not being liable is that he has fulfilled the duty of a prudent man. The words "vel machinarius " spoil the sentence; they are too much or too little. One would expect " vel machinarius ex aedibus lapidem," or the like. The passage as it stands can hardly be as Paulus wrote it (though it is likely enough to be as Tribonian edited it), and it seems more probable that "vel machinarius" is an interpolation than that other words have been omitted. Elsewhere Paulus says, Sent. Bee. I. 15 § 3: Ei qui irritatu suo feram bestiam vel quamcunque aliam quadrupedem in se prori- taverit, itaque damnum ceperit [so Huschke: vulg. "eaque damnum dederit," which does not seem necessarily wrong], neque in eius dominum neque in custodem actio datur. This is a case, according to English terminology, not of contribu- tory negligence, but of no evidence of negligence in the defendant, the plaintiff's damage being due wholly to his own act. ( 595 ) DRAFT OF A CIVIL WRONGS BILL. Peepaeed foe the Goveenment of India. PEEFATOEY NOTE. TowAEDS the end of 1882 I was instructed by the Govern- ment of India to prepare a draft Bill to codify the law of Civil Wrongs, or so much of it as might appear to be of general practical importance in British India. The draft was constructed pari passu with the writing of the present book, or very nearly so, and it was provisionally completed in 1886; it is published in this place with the consent of the Secretary of State for India. The text is given as it then stood, but the notes which accompanied it are consider- ably abridged. 1 have inserted in square brackets a few additional references and remarks, chiefly made necessary, ly important decisions given since the draft was completed. Sir Henry Alaine thought many years ago that the matter ^vas urgent (a) ; but, as I understand, a considerable majority (a) Minute of 17 July, 1879, on have to legislate; for, indeed, legis- Indian Codification, in " Minutes lation is a. process which per- by Sir H. S. Maine," Calcutta, petually goes on through some 1890, p. 224: "Civil wrongs are organ or another wherever there suffered every day in India, and is a civilized government, and though men's ideas on the quan- which cannot be stopped. But tity of injury they have received legislation by Indian judges has may be vague, they are quite suiE- all the drawbacks of judicial legis- ciently conscious of being wronged lation elsewhere, and a great many somehow to invite the jurisdiction more. As in other countries, it is of courts of justice. The result is legislation by a legislature which, that, if the legislature does not from the nature of the case, is legislate, the courts of justice will debarred from steadily keeping in 38 (2) 596 PREFATORY NOTE. of the opinions on this draft collected from judicial and other officers in India were unfavourable to action, and so far nothing has been done. It may be proper to explain that the draft as it stands is not the mere production of an English lawyer un- acquainted with India, but represents a certain amount of consideration and discussion by specially competent critics. In the preparation of the Bill I had, in particular, the advantage of constant criticism from Sir A. Macpherson, Sir William Markby, and other learned and official persons qualified by special experience. Further, I endeavoured, so far as 1 had opportunity in England, to procure criticism and suggestions from' Indian judicial and executive officers, with reference to the possible working of a code of Civil Wrongs in rural districts and in tlie non-regulation pro- vinces. Although such opportunities were limited, I thus had the benefit of acute and valuable remarks of which the substance was embodied in the draft or in the notes to it. ,The letter of my instructions would have justified me in merely stating in the form of a declaratory Act what I conceived to be the English law, and leaving all questions of Indian law and usage to be dealt with separately by the Government of India; but such a course did not appear to be practicable. Therefore in certain places the draft biU deliberately departs from existing English law. Special attention is called to aU such departures, and the reasons for them indicated. [It is hardly needful to state that, as to many of the view the standard of general expe- who are under the thraldom of pre- diency. As in other countries, it is cedents and analogies belonging to haphazard, inordinately dilatory, a foreign law, developed thousands and inordinately expensive, the cost of miles away, under a different of it falling almost exclusively on climate, and for a different civiliza- the litigants. But in India judi- tion. I look with dismay, therefore, cial legislation is, besides, in the on the indefinite postponement of long run, legislation by foreigners, a codified law of tort for India." INDIAN CIVIL WRONGS BILL. 597 clauses, it must not be assumed that they correspond with the common law as it stands in 1920; in some cases an original divergence has increased.] TABLE OF CONTENTS. SECT. Preliminary. 1. Short Jitle. Extent. 2. Saving of rights, remedies and enactments independent of Act. 3. Eepeal of enactments, -t. Interpretation clause. •5. Arrangement of Act. GENERAL PART. CnAriEE I. General Principles of Liability. 6. Wrongs and wrong-doers. 7. Saving of lawful exceptions independent of Act. 8. Liability for wilful harm and unauthorized dealing with property. 9. Liability for harm not wil- fully done by breach or omission or neglect of legal duty, or by negligence. 10. Liability for consequences. 11. Survival of liabilities and rights to representatives. 12. Liability for wrong un- affected by the same fact amounting to an offence. 13. Liability for wrongs of agent. 14. Liability for wrongs of servant. 15. Joint wrongs. Chapter II. General Exceptions. 16. Protection of judicial officers executing judicial orders. 17. Protection of executive officers and persons executing legal duties. 18. Protection of quasi-judicial acts. 19. Protection of acts of lawful authority. 20. Protection of acts done under authority conferred by law. SECT. 21. Accidental harm without negligence. 22. Harm incident to exercise of others' common rights. 23. Harm from voluntary exposure to risk. 24. Acts done with consent. 25. Act done on emergency for a person's benefit without con- sent. 26. Acts causing slight harm. 27. Private defence. SPECIAL PART. Chapter III. Assault and False Imprisonment. 28. Assault. 29. Ealse imprisonment. 30. Exemplary damages. Chaptee IV. Dejamation. 31. Saving and exclusion of Penal Code as to defamation. Saving of criminal jurisdiction on other grounds. 32. Defamation defined. 33. Construction of words com- plained of as defamatory. 34. Responsibility for statements repeated on hearsay. 35. Fair criticism is not defama- tion. 36. Fair public reports are not defamation. 37. Exceptions on grounds oE public policy — (1) Truth in substance. (2) Statements in course of judicial proceedings or legislative debate. 38. (1) Statements on privileged occasions. (2) Immunity of statements in good faith on privi- leged occasions. 698 TABLE OF CONTENTS. Chapter V. Wrongs against Good Faith. SECT. 39. Deceit. 40. Deceit defined. 41. Slander of title. 42. Malicious prosecution. 43. Abuse of process of Court. Chapter VI. Wrongs to Property. 44. Trespass defined. 45. Protection of apparent right to possession. 46. Trespass by possessor for limited purpose exceeding his right. 47. Mistake does not generally excuse trespass. Immunity of certain minis- terial actions. 48. Mere claim of right cannot be trespass. 49. Licence defined. 50. Effect of licence. 51. Time of grace after revocation of licence.- 52. True owner's right of recap- ture. " Chapter VII. Of Nuisance. 53. Special damage from public nuisance. 54. Liability for private nuisance. 55. Private nuisance defined. ■56. Pre-existence of nuisance im- material. 57. Same facts may be distinct nuisance to several persons. SECT. 58. Co-existence of other nui- sances no defence, 59. When owner out of possession can sue for nuisances. 60. What persoiLS are liable for a nuisance. 61. Concurrent civil and criminal jurisdiction in case of special damage from public nuisance. - Chapter VIII. Of Negligence. 62. Negligence and diligence. 63. Evidence of negligence. 64. Contributory negligence. 65. Collateral negligence imma- terial. 66. Action under stress of danger caused by another's negli- gence. 67. Eight to rely on others' dili- gence, and take lesser risk to avoid greater. 68. Custody of dangerous things. 69. Liability of occupiers of pro- perty. 70. Position of licensees using premises. Chapter IX. Of Damages for Civil Wrongs. 71. Measure of damages in general. 72. Damages for injury to specific property. 73. Aggravation or mitigation of The Schedule. INDIAN CIVIL WRONGS. BILL. 599 ^■1 Bill to define and amend obtain parts of the Law of Civil Wrongs. Prelindnary. 1. This Act may be cited as the Civil Wrongs Act, 18 ; and It shall come into force on the day of 18 . It extends to the whole of British India. 2. This Act does not affect any legal right or remedj-, or any enactment creating or limiting rights or remedies, which is not abrogated or repealed by this Act or incon- sistent with any express provision of it. 3. The Acts mentioned in the schedule hereto are hereby repealed to the extent specified in that schedule. 4. In this Act, unless there be something repugnant in the subject or context — " Court " includes every Court, judge, and magistrate and officer, having jurisdiction to hear and determine the suit or matter in question: " Good faith " implies the use of due care and attention: " Grievous hurt " means any of the kinds of hurt which are so designated in the Indian Penal Code, section 320. (XLV. of 1860.) 5. This Act is arranged as follows: — [See Table of Contents prefixed. In the original draft this clause was left blank pending further revision.] 600 INDIAN CIVIL WRONGS BILL. GENERAL PART. Chapter I. General Principles of Liability. Wrongs atid wrong-doers. 6. Every one is a wrong-doer who does or omits to do anything whereof the doing or omission respectively is by this Act declared to be a wrong. Any person thereby becoming entitled to a legal remedy against the wrong-doer is said to be wronged by him. Saving of lawful exceptions itidependent of Act. 7. The liabilities declared by this Act are subject to all lawful grounds of exception, justification and excuse, whether expressed in this Act or not, except so far as they are varied by this Act or inconsistent with its terms (a). Liability for icilful harm and unauthorized dealing with Property. 8. Every one commits a wrong who harms another — (a) by an act intended to cause harm (6): (b) by intermeddling without authority with anything which belongs to that other (c). Illustration. A. iinds a watch whi^h B. has lost, and in good faith, and intending the true owner's benefit, attempts to clean it and put it in order. In doing .«o A. spoils the watch. A. has wronged B. («) This appears, in an Act not of, e.g., assault, trespass, and defa- intended for a complete code of mation stand on their own ground, the sujjject, a desirable precaution. By harm I mean what English A similar clause was inserted in law books commonly call actual the English draft Criminal Code "damage, by the revising Commission. (c) Exceptions are dealt with (i) This clause is inclusive, not under Wrongs to Property. exclusive: the specific definitions (Claupe 47, below.) GENERAL PART. 601 Liability for harm not uilfuUy done by breach or omission or neglect of legal duty, or by negligence. 9. Every one commits a -wrong {d) who harms another — (a) by Eny act forbidden by law; or (b) by omitting to perform, or insufficiently or impro- perly performing, any general duty imposed on him by law; or (c) by Avant of due care and caution in his acts or conduct. In the absence of any more specific rule applicable to the •case, due care and caution means such care and caution as a man of ordinary sense, knowledge and prudence may be expected to use in the like case, including, in the case of acts and undertakings requiring special skill, such care and skill as may be expected of a person reasonably com- petent in the matter in hand. Exception. — Where the conduct of a matter requiring special skill is undertaken of necessity [or " under circum- stances of evident necessity "], and to avoid a greater risk, the person undertaking it is deemed to use due care and caution if he makes a reasonable use of such skill as he actually possesses. Illustrations. 1. B., a zaminddr, transfera a portion of his zamind4ri to 0., in accordance with the provisions of the regulations in force in the pro- vince, by which regulation, registration and sub-assessment are need- ful to complete the validity of the transfer (e). A., the local collector, refuses to register and sub-assess the portion so transferred. A. has ■wronged C. 2 A., not being a builder, ere:!ts a scaffolding for the purpose of repairing his house. It is unskilfully constructed, and by reason thereof part of it falls upon B., who is passing on the highway, and hurts him. {dy Yoi the general principles 93; Heaven v. Pendei; 11 Q. B. see Fergusson v. Earl of Kinnoul, D. 503. 9 CI. & F. 251; Merset/ Docks (e) Fonnusdmy Tevar v. Collec- Tiusteea v. Gibbs, L. R. 1 H. L. tor oj Madura, 3 Mad. H. C. 53. 602 INDIAN CIVIL WRONGS BILL. A. has wronged B., though A. may have put up a scafEoldiug as well as he could. 3. A. goes out driving with a horse and carriage. A. is bound to drive with such skUl as, according to common experience, is expected of a coachman. 4. A. goes out driving, and takes with him a friend, B., who is not accustomed to driving. A. is disabled by a sunstroke. No skilled help being at hand, B. takes the reins and drives. In deciding whether under these cLroumstances B. acts with due care and caution, regard is to be had to B.'s want of skUl. 5. A., an engineer not skilled in navigation, is a passenger on a small river steamer. The only competent sailor on board is disabled by an accident, and A., at the request of other passengers, takes charge of the steamer. In deciding whether, under these circumstances, A. acts with due care and caution, regard is to be had to the actual extent of his knowledge and skill. 6. A. and B. are out shooting. A tiger attacks them and carries offi B. No other help being at hand. A., who is an indifferent shot, fires at the tiger and kills it, but also wounds B. A. has not wronged B., though a better shot might possibly have killed the tiger without wounding B. Liability for consequences. 10. A person is deemed to have harmed any one who' suffers harm by reason of an act or omission of the first- mentioned person (/), provided that the harm is — (a) an ordinary consequence of that act or omission, whether intended by the person so acting or omitting or not; or (b) a consequence thereof which that person foresaw, or with due care and caution might have foreseen (g) ; a wrong-doer is liable for all such consequences of his wrongful act or omission as in this section mentioned. Illustrations. 1. A. unlawfully throws a, stone at B,, which misses B. and hits and breaks C.'s water jar. A. has wronged G. (/) [As to the relation of the ordinary, which a man neverthe- period of limitation to the cause of less foresees, or which, in the par- action, see Act XV. of 1877, s. 24, ticular case, a commonly prudent and Barley Main Colliery Co. v. man in his position ought to fore- Mitchell, 11 App. Ca. 127.] see. Illustrations 4 and 8 are (?) This is not a repetition: for cases of this kind, there may be consequences, not GENERAL PART. 60S 2. A. lies in wait for B., intending to assault and beat him as he goes home in the evening. Mistaking O. for B. in the dusk, A. assaults C. A. has wronged C. 3. A. unlawfully diverts a stream for the purpose of depriving B.'s growing crops of their irrigation. The diversion of the stream harms C."s crops as well as B.'s by drought, and the water floods a piece of D.'s land and spoils the crops growing thereon. A. has wronged both C. and D. 4. A. and 0., who is B.'s servant, quarrel in the street. A. draws a, knife and threatens C. with it. O. runs hastily into B.'s house for pro- tection, and in so doing strikes and upaets a jar of ghee belonging to B., so that the jar is broken and the ghee lost. A. has wronged B. (/i). 5. A. whips a horse which B. is riding. The horse runs away with B., and knocks down O., who falls against D.'s window and breaks it. A. has wronged both C. and D. (»). 6. A. leaves his horse and cart unattended in the street of a town. B. and O. are children playing in the street. B. climbs into the cart; as he is doing so C. causes the horse to move on, and B. is thereby thrown down under the wheel of the cart, which passes over him and injures him. A. has wronged B. (i). 7. A. leaves a loaded gun in a place where he knows that children are accustomed to play. B. and C. come with other children to play there; B. takes up the gun and points it in sport at O. The gun goes off and wounds C. A. has wronged O. (2). 8. A. unlawfully causes a stream of water to spout up in a public ro^d. B. is driving his horse and carriage along the road: the horse takes fright at the water and swerves to the other side, whereby the horse and carriage fall into a cutting by the roadside which has been improperly left open by C, and B. is wounded and the horse and carriage damaged. A. has wronged B. (»«). 9. The other facts being as in the last illustration, some of the water runs into the cutting, and wets and damages some clothes belonging to D., who is at work in an adjoining field and has deposited them there. A. has not wronged D. («). 10. A. leaves his gate, opening on a highway, insufficiently fastened; A.'s horse gets through the gate and kicks B., who is lawfully on the (h) Vatidenburgh v. Truax, 4 against this. Deoio (N. Y.), 464, with change of (/) Case put by Denman C. J. local colouring. in Lynch v. Nurdin. (i) lllidge v. Goodwin, Lynch v. (m) Hill v. New River Co., 9 Nurdin, cited in Clark v. Cham- B. & S. 303. The distinction bers, 3 Q. B. D. 331. The Squib between this and the next case is case {Scott v. Shepherd) seems possibly too fine, hardly worth adding to these . (») Cf. Sharp v. Powell, L. E. (A;) Lynch v. Nurdin, 1 Q. B. 7 C. P. 253. But illustrations 29. Mangan v. Atterton, L. B. 1 8 and 9 would perhaps be better Ex. 239, can hardly be supported omitted. 604 INDIAN CIVIL WRONGS BILL, hin-hway. If the horse was not to A.'s knowledge a vicious one, A. has not wronged B. (o). 11. A. is the owner of a field in which he keeps horses. A. neglects the repair of the gate of this field, whereby a horse breaks down the gate, strays into B.'s adjoining field, and kicks and injures a horse of B.'s which is kept there. A. has wronged B. (/>). 12. A. is driving an ox through the street of a town with due care and caution. The ox goes off the road into B.'s shop and does damage to B.'s goods. The ox may be liable to be impounded, but B. cannot sue A. lor compensation, for, although the damage is the natural con- .sequence of the ox straying, A. has done no wrong (?). Survival of liabilities and rights to representatives. 11. Subject to the provisions of this Act and to the law of limitation every right of action under this Act is avail- able against and for the executors, administrators and representatives of the wrong-doer and the person wronged respectively (r). Liability for iirong unaffected by the same fact amoimting to an offence. 12. For the purposes of this Act, it is immaterial whether the facts constituting a wrong do or do not amount to an offence (s). (o) Cox V. Burhidge, 13 C. B. Bentham) that there is no place N. S. 430. for it in a rational and simplified {p) Lee V. Riley, 18 C. B. N. code. I do not overlook the con- S. 722. sequence that in some cases persons {q) Tillelt V. Ward, 10 Q. B. D. who would have a right to com- 17. But query whether desirable pensation under Act XIII. of 185.3 to adopt this for India. An ex- would, under this clause, have perieneed judicial officer (Punjab) none. But I think that the rights regards it as " very queer law created by Lord Campbell's Act, and of doubtful equity." As to and Act XIII. of 1855, which impounding, Ben. Act IV. of 1866, copies it, are anomalous and objeo- s. 71 (and other local Acts). tionable, so far as they produce (r) This is intended to supersede results different from those which Acts XII. and XIII. of 1855, and would be more simply produced by if adopted, will also involve some abolishing the common law maxim, .slight amendment of Act XV. of (s) The old rule, or supposed 1877 (Limitation). The maxim rule, as to the civil remedy being " actio personalis moritur cum " merged in the felony," is all lint persona," rests on no intelligible exploded in England [see pp. 201, principle, and even in England is 202, above] and the H. C. of Cal- more than half falsified by parti- cutta, as long ago as 1866, de- cular exceptions. I submit (after cided against its adoption in India: GENERAL PART. 605 Illustrations. 1. A. being at work on a building, by carelessness lets fall a block of stone on B., who is lawfully passing by, and B. is thereby so injured that he shortly afterwards dies. A. has wronged B., and B.'s executors can sue A., though A.'s act may be an offence under sect. 304a of the Penal Code. 2. A. wrongfully takes B.'s cow out of B.'s field and detains it under pretence that he bought it at an auction-sale in execution of a decree. B. can sue A., though A.'s act may be an offence under sect. 378 of the Penal Code. Liability for wrongs of agent. 13. Every one is liable for wrongs done by his authority or done ou his behalf and ratified by him (t). Liability for wrongs of servant. 14. (1) An employer or master i^ liable for the wrongs of his servant, whether authorized or ratified by him or not, if and so far as they are committed in the course of the servant's employment, and for the employer's or master's purposes. (2) The master of a person engaged on any work is that person who has legal authority to control the performance of that work, and is not himself l^ubjeot to any similar authority in respect of the same work. Exception 1 (u). — Where the person wronged and the wrong-doer are servants of the same master, and the wrong is done in the course of one and the same employ- ment on which they are at the same time engaged as such see lUust. 2; Shama Churn Bcse y. circumstances the defendant had Bhola Nath Dtitt, 6 W. E. (Civil authorized or ratified the act com- Eef.) 9. Cf. Viranna v. Na/jdy- plained of. yah, I. L. R. 3 Mad. 6, following {u) This is a large alteration of the H. C. of Calcutta. English law, and intended so to be. (t) See Girish Chunder Bas v. The Employers' Liability Act of Gillanders, Arhuthnot # Co., 2 1880 is an awkward and intricate B. L. R. 140, O. O. ; Hani Sham- compromise, and evidently will not shoondri Oeba v. Dubhu Mumlul, serve as a model. The final proviso 2 B. L. R. 227, A. O. Both these is only existing law. [Perhaps eases seem to turn on a question this exception would be better of fact whether under all the dealt with in a separate Act.] 606 INDIAN CIVIL WRONGS BILL. servants, the wi'ong-doer not being in that employment set over the person wronged, the master is not liable unless he knew the wrong-doer to be incompetent for that em- ployment, or employed him without using reasonable care to ascertain his competence. Explanation (x). — For the j^urposes of the foregoing exception the whole and every part of the ordinary service of a household is deemed to be one and' the same employ- ment. Exception 2 (y). — A person who is compelled by law to use the services of another person, in the choice of whom' he has no discretion, is not liable for wrong committed by that other in the course of such service. Illustrations. 1. A. directs his servant B. to put a, heap of rubbish in his garden, near the boundary, but so as not to interfere with his neighbour C. B. executes A.'s order, and some of the rubbish falls over into C.'a garden. A. has wronged 0. (a). 2. A. sends out his servant B. with a carriage and horse. B. overtakes C.'s carriage and horse on the road, and strikes C.'s horse in order to make C.'s driver draw aside and let him pass. A. has wronged O. 3. A. sends out his servant B. with a ca,rriage and horse. B. meets C.'s carriage and horse, and strikes C.'s horse in order to bring C.'s driver, with whom he has a private quarrel, into trouble. A. has not wronged O. 4. A. sends out his servant B. with a cart on business errands. In the course of doing A.'s business, B. takes a longer way for a purpose of his own, and by careless driving runs over O. After finishing his business, and as he is driving home, B. picks upi a friend D.; D. per- suades B. to drive him in another direction, and by careless driving B. runs over E. A. is liable to C, but he is not liable to E. («). (x) This seems needful: other- being naturally incidental to his wise, as suggested in some of the employment? English authorities, if the stable- (y) Compulsory pilotage is tho boy leaves a pail about, and the chief— I think the only— case to coachman breaks his shin over it which this exception applies, in the dark, the coachman^ shall (;) Gregory v. Pipei- 9 B. & C have an action against the master, 591 [33 E. R. 268]. ' &c., which would be inconvenient. (a) Storey v. Ashton, L. R 4 The real question is, what risks Q. B. 476, and cases there cited IS it, on the whole, reasonable to I should prefer to say: "A. is not «xpect the servant to take as liable to E., and he is liable to C GENEKAL PART. 607 5. N., a passenger by the X. Company's railway, books for Alla- habad, and takes his seat in a train which is in fact going thither. A. is a servant of the company whose duty is (among other things), to sea that passengers do not get into wrong trains or carriages. A., erroneously supposing N. to have got into a train which is not going to Allahabad, pulls him out of the carriage as the train is starting, whereby N. falls on the platform and is injured. The X. Company has wronged N., even if A.'s instructions were that he must not use force to remove passengers from a wrong carriage (i). [6. B. is A.'s servant; part of his duty is to light the fire in a certain room in A.'s house. B. finds diflBculty in lighting the fire from the cliimney being foul, and makes a. fire of straw under the chimney in order to clear it. The house takes fire, and damage is done thereby to the house and goods of a neighbour C. B. only, and not A., has wronged C, for it was not B.'s business as A.'s servant to cleanse the oliimney] (c). 7. O., ii customer of A.'s bank, cashes a draft, and by mistake leaves somo of his money on the counter. He returns and takes it up hurriedly; B., one of the bank clerks, thinks he has stolen some of the bank's money, and pursues and arrests him. A. has not wronged C, inasmuch as it is no part of a bank clerk's duty to pursue or arrest thieves, although he might be justified in doing so if theft had really been committed (d). 8. N. is a platelayer in the service of X. Eailway Company. He makes a journey ou the company's service in a train on the company's line. By the negligence of a pointsman employed by the company, the train goes o£E the line and N. is injured. The X. Company is liable to N. (e). [9. P. is an engine-driver in the service of the X. Railway Company. A train which he is driving in the course of his service goes off the line by the negligence of Q., a generally competent pointsman also in the com- pany's service, and P. is injured. Tlie X. Company is liable to P.] (/). only if it appears as a fact that objectionable on principle in rela- B.'s deviation was not such that he tion to that country." No harm had ceased to be in the course of could be done by omitting it. his employment as A.'s servant (rf) Cf. Allen v. L. ^ S. W. R. when he ran over C"; cf. What- Co., L. R. 6 Q. B. 65, 69. In man v. Pearson, L. R. 3 C. P. the case here supposed a private 422; though this would involve person would in India be on- some innovation. I think the dis- titled to arrest the thief, if theft tinctions in the English cases are were really committed in his too fine. view: Cr. P. C. 59. (6) Bayleij v. Manchester, Shef- (e) Intended to reverse a case field # Lincolnshire JR. Co., Li. E. of Turner v. S. P. ^ D. E. Co. in 8 C. P. 148. the H. O. Allahabad, not reported (c) M'Kenzie v. M'Leod, 10 (Alexander, p. 38); cf. Tunney v. Bing. 385 [38 E. R. 477]. Strictly Midland R. Co., L. R. 1 C. P. 291. the question here is one of fact. Railway Companies will not ap- But the Court evidently not only prove of the change, but it would acquiesced in but approved the leave them better off than they are finding of the jury. A Punjab on the Continent of Europe. oflBcer says the illustration is too (/) Contra, Farwell v. Boston fi refined, " unsuitcri to India, and Worcester Railroad Corporation, 4 608 INDIAN CIVIL WRONGS BILL. 10. A steamship of the A. Company, being navigated up the harbour of Bombay by a, compulsory pilot, runs down B.'s bagalo. If the A. Company can show that the collision was due to the unakilfulnesa of the pUot, and not of their own master or mariners, A. Company has not wronged B. (re). Joint wrongs. 15. (1) Joint wroug-doers are jointly and severallj' liable to the person wronged. (2) Persons who agree to commit a wrong which is in fact committed in pursuance of that agreement are joint wrong-doers even if the wrongful act is committed by or under the immediate authority of some or one only of those persons {h). (3) Where judgment has been recovered against some or one of joint wrong-doers without the other or others, no other suit can be brought by the same plaintiff or in his right for the same cause of action against the other or others (i). (4) Any one of joint wrong-doers is not entitled to con- tribution or indemnity from any other of them in respect of compensation for a wrongful^ act which he did not at the time of doing it believe in good faith to be lawfully- authorised (fc). Met. 49, Bigelow L. C. 688. On all, except as regards domestic principle, I think that, if there is servants. to be any exception at all in the {g) Muhammad Tuavf v. P. ^- 0. master's favour, it should go as Co., 6 Bombay H. C. 98, Alex- far as this. It seems to me that the ander, p. 37. engine-driver and the pointsman (A) See Ganesh Singh v. Earn are as much in one and the same Maja, 3 B. L. E. 441, P. C. employment as the engine-driver (i) It may be worth considering and the guard, and that the 'reason- whether the rule that judgment ing of the Massachusetts case is, on against some or one of joint the facts of that case, correct. But wrong-doers is' a bar to any suit the Employers' Liability Act, 1880, against the others ought to be s. 1, sub-s. 5, appears to reverse preserved in British India. It the common law rule in this very is generally not followed in the point. I do not believe it possible United States. to fix the limits of the exception (/;) Adnmsan v. Jnrvis, 4 Bing. satisfactorily, and I would submit 66 [29 H. R. 503]; Jietts v. Gih- whether it is worth keeping at ?;(»s, 2 A. & E. 57 [41 R. E. 381]. GENERAL PART. 609' Chapter II. General Exceptions. Protection of judicial officers executing judicial orders. 16. {I). Nothing is a wrong which is done by or by the warrant or order of a judge or other judicial officer or person acting judicially: Provided, as regards the exemp- tion from liability of any such judge, officer, or person, acting judicially, that he at the time was acting in the discharge of his judicial duty, and if he had not juris- diction to do or order the act complained of, in good faith believed himself to have such jurisdiction: Provided also as regards the exemption from liability of any person executing a judicial order, that the warrant or ord-er is such as he would be bound to execute if within. the jurisdiction of the person issuing the same. Explanation. — The motives with which a judge or judi- cial officer acts within his jurisdiction are immaterial (m). Illustrations. 1. Z., not being a domestic servant, is charged before A., a magistrate^ under a local regulation with " misbehaviour as a domestic servant," and sentenced by him to imprisonment without proper investigation of tlie facts which show that Z. is not a domestic servant. A. has wronged Z., for though he may have believed himself to have jurisdiction, he could not under ths circumstances so believe in good faith within the meaning of this section («). 2. B. is accused of having stolen certain goods. A., a deputy magis- trate, causes B.'s wife (against whom no evidence is ofteiied) to be arrested and imprisoned for twenty-four hours, for the purpose, as it is suggested, (I) Act XVIII. of 1850, with of limitation of suits for judicial some condensation. As to criminal acts is left to stand over. Provi- prosecution, Or. P. C. 197. This, sion in that behalf should perhaps of course, does not apply to such come under the title of Remedies, a case as that of taking the wrong («() Pralhdd Mdhdrudra v. J. C. man's goods, which is not an exe- Wait, 10 B. H. C. 346; Meghraj cution of the order. In criminal v. Xakir Hussain, I. L. R. 1 All. law the exception is wider, P. C. 280. 79. For the English law and au- yii) Vithobd Malhdri v. Cor- thorities, see Scott v. Stansfield, field, 3 B. II. C. Appendix. L. R. 3 Ex. 220. The question P.— T. 39 -610 INL)IAN CIVIL WRONGS BILL. ■of compelling B. to appear. A. has wronged B.'s wife, for he could not in good faith believe himself to have jurisdiction to arrest her (o). 3. A., a customs officer, purporting to act under the provisions of -Act VI. of 1863, imposes a fine on B., who to A.'s knowledge is a foreigner residing out of British India, on the alleged ground that B. :is interested in goods unlawfully imported in a vessel of which B. is in fact owner. In B.'s absence A. seizes and sells goods of B.'s for tlie alleged purpose of satisfying the fine. A. does not, before these pro- ceedings, take legal advice or give B. an opportunity of being heard. A. has wronged B., for under these circumstances, though he may have believed himself to have jurisdiction, he could not so believe in good faith within the meaning of this section (?)). 4. A., a magistrate, makes an order for the removal of certain pro- perty of B.'s, acting on a mistaken construction of a local regulation. If the act is judicial, and the mistake such as a magistrate of ordinary •qualifications might, in the opinion of the Court, entertain after fair inquiry and consideration, A. has not wronged B. (5"). 5. A local Act gives power to magistrates (among other things) to remove obstructionis or encroachments in highways. A., a magistrate, makes an order purporting to be under this Act for the removal of ■certain steps in front of Z.'s house. If this order is in excess of the power given by the Act, A. has wronged Z., inasmuch as the proceeding is not a, judicial one (r). Protection of executive officers and persons executing legal dnities. 17. Where an act is done in a due or reasonable manner — (a) by a public officer in obedience to an order given by a person whom he is generally bound to obey, that order being such as he is bound to obey, or such as he in good faith believes himself bound to obey; (o) Vindyab Disdkar v. Bdi Nathamuni Thatliamdyyangar, 6 Itchd, 3 B. H. C. Appendix, 36. M. H. O. 423, it is assumed that {p) Collector of Sea Customs v. the making of an order of the .Punniar Chithambaram, I. L. E. same kind under the similar 1 Mad. 89. general provisions of the Or. P. (?) Ragundda Sau v. Natha- 0. 308, is a judicial act within the muni, 6 M. H. C. 423. meaning of Act XVIII. of 1850. (r) Ohunder Narain Singh v, I cannot reconcile these authori- Brijo Bullub Gooyee (A. C), 14 ties, and submit for consideration B. L. R. 254. But in Seshai- which view is to be preferred. The yangar v. R. Ragunatha Row, 5 Bengal case is the later (1874), and M. H. 0. 345, and the very sLmi- the Madras eases were cited in it. lar case of R. Rngnnddn Rmi v. GKNKKAL PART. fill (b) by a person acting in execution of a duty or exer- cise of a discretion which he is by law bound to perform or exercise, or as in execution of a duty or exercise of a discretion which he in good faith believes himself to be bound by law to perform or exercise; that act does not render the officer or other person so doing it liable as for a wrong. Illustrations. 1. A., a judge's peadah, is ordered by the judge to seize B.'s goods in execution of a decree, and does so. Though the proceedings may have been irregular, or the specific goods which A. is ordered to seize may not be the goods of the person against whom execution was adjudged. A, has not wronged B. 2. A., a policeman, is ordered by his superior officer to arrest B., and in good faith believes the order to be lawful. Whether the order is lawful or not, A. does no wrong to B. by using toward B. such forofl as is reasonably necessary to effect the arrest. But A. docs wrong to B. if he strikes him otherwise than in self-defence, or in any other manner uses excessive force towards him. Protection of quasi-judicial acts. 18. Nothing is a wrong which is done regularly and in good faith by any person in the exercise of a discretion of a judicial nature to which tlie party complaining is lawfully subject by custom or agreement (s). Illustrations. 1. The articles of association of a joint stock company provide that " an extraordinary general meeting specially called for the purpose may remove from his office any director for negligence, misconduct in office, or any other reasonable cause." A., being a director of a company, is charged with misconduct in his office, and an extraordinary special meeting is duly called to consider these charges. A. is summoned to this meeting, but does not attend. The meeting resolves to remove A. from (s) The words " regularly and from a club, and the like, call ob- in good faith " are meant to cover serving the rules of natural what the English authorities on justice: Inderwick v. tSnell, 2 -deprivation of office, expulsion Mac. & G. 216. ?9 (2) 612 INDIAN CIVIL WRONGS HILL. his office. No wrong is done to A., even if, in the opinion of the Court, the charges against liim were not well founded. 2. The rules of a club provide that if in the opinion of the committee the conduct of a member is injurious to the character and interest of the club, the committee may recommend that member to resign, and that if the committee unanimously deem the ofEenc« of so grave a character ag- in the interests of the club to warrant the member's expulsion, they may suspend him from the use of the club. The committee must not sus- pend a member under this rule without giving him fair and sufficient notice of th5 charges against him, and an opportunity of meeting' them (/). Dut if, after giving such notice and opportunity, and making reason- able inquiry, the committee, acting in good faith, are of opinion that the conduct of a member is so injurious to the character and interests of the club as to warrant his expulsion, and suspend him accordingly,, they do not wrong that member («). 3. [Slated for coiisideration.~\ A. and B. are members of the same Hindu caste. A. is president of the annual caste feast, to which B. is entitled, according to the usage of tlie cjj-ste, to be invited. jV. wilfully, and without reasonable belief in the existence of any cause for which B. ought to be excluded, ani without taking any of the steps which, according to usage, ought to bC' taken before excluding a member of the caste from the feast, causes B. not to be inviteJ, whereby B. suffers in character and reputation. A. has wrongeci B. (.>■). Protection of acts of lawful authority. 19. (yV Xothing is a wrong which is done by or by order of a person having- lawful authority, and in exercise thereof, to any one for the time being under that authority, (0 Fisher v. Keane, 11 Ch. D. wrongs. 353. (y) This is intended to cover {i() Lahoucliere v. Wharndife, the cases of mastei-s of vessels, 13 Ch. D. at p. 3.52; Dawl., 2 C. P. D. 311, and L. R. 8 C. P. 401; GvAnnell v. cases there cited. See, too, Oandy Earner, L. R. 10 C. P. 658. 650 INDIAN CIVIL WRONGS BILL. Illustration. A. lets to Z. a house, with a chimney near B.'s -windows. Z. makes fires in this chimney, and the smoke thereof becomes a, nuisance to B. . Z. only, and not A., has -wronged B., unless A. let the house to Z. -with express authority to use that chimney in the manner in -whioh Z. has used it (x). Concurrent civil and criminal jurisdiction in case of special damage from public nuisance. 61. A Civil Court may make an order for removing la public nuisance at the suit of any person who suffers special damage by that nuisance, not-withstanding that an order for the like purpose might be made by a magistrate {y) . Note. — The subject of remedies for nuisance appears to be already sufficiently dealt -with by the Specific Relief Act (I. of 1877), chaps. 9 and 10, and the Ci-nl Procedure Oode, chap. 35, and Form 101 in Sched. 4. Abatement of nuisances by the act of the party -wronged without process of law is hardly in use in England, except as against infractions of semi-public rights like rights of common. Chapter VIII. Negligence. Negligence and diligence. 62. (1) Negligence is the omission or failure to use duo care and caution for the safety of person or property -within the meaning of this Act, and a person so omitting or failing, whether in respect of his o-wn person or property or that of others, is said to be negligent. (2) Diligence in this port of this Act has the same mean- er) Rich V. Basterfield, 4 C. B. 8 Gal. 20), it may be worth while 783. to deal with it in the BUI. I do (j') As this_ point has been not find that it is noticed in the raised and decided {Saj Koomar last revision of the Civil Procedure Singh v. Sahebzadu Roy, 1. L. E. Code. SPECIAL PART. 651 ing as due care and caution, and a person using due care and caution is said to be diligent. Evidence of n&gligence. 63. (1) Where harm' is complained of as caused by the negligence of any person, it is a question of fact whether that person ha.s or has not been negligent. (2) A person is not liable for negligence where the facts are not less consistent with diligence than with negligence on that person's part. (3) In determining whether one person has or has not been negligent towards another, regard is to be had to that other's apparent means of taking care of himself {z). Illustrations. 1. A. occupies a warehouse in which coal is kept. The coal takes fli-e,. and both A.'s warehouse and an adjoining warehouse belonging to B. are burnt. B. sues A. for compensation. It is a, question of fact whether there has been negligence on A.'s part, either in the manner in which the coal was kept, or in the precautions used against fire, or in the endeavours made to subdue the fir© when it was discovered (a) . 2 . The X. EaUway Company's line crosses a high xoad on the level. A.,, a foot passenger, attempts to cross the line at this place, not being expressly warned by any servant of the company not to do so, and is knocked down and injured by a. train under the management of the company's servants. It is a question of fact whether, having regard to the precautions for the safety of persons crossing the railway, which may have been prescribed by rules under the Indian Railway Act, 1879,. to the local circumstances, to the usual course of traffic, and to the state of things at the time of the accident, the injury to A. was or was not caused by negligence on the company's part (ad). 3. A grass bank adjoins the X. C!ompany's railway, and is part of the company's property. Grass cut by the company's servants on this bank (s) It is not easy to formulate, here followed. The casies to which as a proposition of law, what it seemS' not to apply (such as- anuounte' or does not amount to Byrne v. Baadle, 2 H. & C. 722, " evidence of negUgenee." Still, and in Bigelow) are really oases of as there is a question of law, special liability where the burden some criterion must be assumed to of proof is on the defendant, exist, and the case of Rommach (a) M'Cully v. Clark, ap. Bigo- V. White (11 C. B. N. S. .588, low L. C. 559. also in Bigelow L. C. on torts) (aa) Wanless v. j\'. E. R. Co. contains something like an au- L. R. 7 H. L. 12. thentio statement of it, which is 652 INDIAN CIVIL WRONGS BILL. is there deposited during a diy season, and, after this grass has been there for some timeij a train passes on the line, and the grass is imme- diately thereafter seen to- be on Are. The fire spreads across a field and burns A.'s house. A. sues the company for compensation. It is a question of fact whether the company has been negligent (6). 4. A. is lawfully passing under a crane belonging to B., and worked by B.'s servants, which overhangs A.'s path. A bale of cotton which is being lifted by the crane falls upon A. and hurts him. It is a question of fact whether B.'s servants have been negligent in the management of the crane (c) . 5. A., while croasing^ a public road on foot, is run over by B.'s carriage. A. cannot recover compensation from B. without proving facts tending to show that B.'s driver was in fault rather than A., for drivers and passengers are equally bound to use due care and caution in a place where both may lawfully pass and repass (jT). 6. B. goes out riding in town with a horse he has just bought. WhUe he is riding at a moderate pace, the horse, notwithstanding B.'s efforts to keep him in, runs away, and runs against and injures A., who is lawfully on the foot pavement. Unless B. managed the horse unskilfully, or knew it to be unmanageable, B. has not wronged A. (e). 7. If a person riding or driving sees, or with ordinary care would see, that a blind man, an infant, or a cripple, is in the way, greater caution is required of him than if an able-bodied adult were in the same situation with regard to him (/). Contributory negliffence. 64. iff). (1) A person is not liable for harm of which the principal cause is the negligence of the person injured [or of (b) Smith v. £. # S. W. if. Co., defendant's part, but to disprove li. R. 5 C. P. 98, 6 O. P. 14, contributory negligence on his own. a ca^e in which both Courts (C. [See now Wakelin v. L. ^ S. W. P. and Ex. Ch.) held with some B. Co., 12 App. Oa. 41, 47.] difficulty that there was evidence (e) Hammack v. White, 11 O. of negligence; cf. the later Indian B. N. S. 588, and in Bigelow. case of Halford v. E. 1. R. Co., (/) lUust. 7 is the concrete 14 B. L. R. 1, 0. Q., where the statement of sub-clause 3. I decision seems to be one of fact know no case exactly in point, but on conflicting evidence. I think this must be the law. (c) Scott V. London Bock Co., {g) This clause was drafted 5 H. & O. 596, 34 L. J. Ex. 220. before the decisions of the C. A. (0) Cotton V. Wood, 8 O. B. and the House of Lords in The N. S. 568, 29 L. J. C. P. 333. Bernina, 12 P. D. 58; Mills v. Probably this kind of case is the Armstrong, 13 App. Ca. 1. The origin of the statement sometimes] words " or of a third person," met with (which as a general which were inserted with an ex- propo-ition is evidently wrong in pression of doubt, would now have principle) tliat it lies on the to be omitted, and the law as now plaintiff in the first instance not laid down should be more explicitly ■only to prove negligence on the declared. SPECIAL PART. 65» a third person], although the harm' would not have happened but for the negligence of the first-mentioned person, or of some person for whose negligenoe he is answerable. (2) A person suffering harm whereof his own negligence is the principal cause, though but for the negligence of some other person it would not have happened, is said to be guilty of contributory negligence. (3) A person's negligenoe is deemed to be the principal cause of harm which could immediately before its happen- ing [or perhaps better, " immediately before it happened or became inevitable "] have been prevented by due care and caution on the part of that person alone. (4) Where by this Act anj- person is declared to be liable as for negligence, the rules of law concerning contributory negligence are applicable. Illustrations. 1. B. is driving on the wrong side of the road. A. is driving on the- same side in tlie opposite direction, and with ordinary care he might keep clear of B.; nevertheless A. runs into B.'s carriage. A. lias wronged B. 2. B. is the owner of a sailing vessel, which by reason of B.'s servants in charge of her failing to keep a proper look-out is in the way of A.'s steamer. If the position is such that with ordinary care the steamer might avoid a collision, and the steamer runs down the sailing vessel, A. has wronged B., notwithstanding that if B.'s vessel had been properly navigated the collision would not have happened Qi). 3. B. leaves a bullock tethered on the highway. A., driving at an incautiously fast pace, runs over and kills the bullock. A. has wronged B., for he might, with ordinary care, have avoided running over the bullock, though B. was negligent in leaving it in such a place un- watehed (j). 4. A. wrongfully places a pole across a public street. The pole is of such a size that a. rider in the street approaching at a reasonable pace- would see it in time to pull up. B., riding along the street at a furious pace, comes against the pole and is hurt. A. has not wronged B., for B. might have avoided harm by using ordinary oar-e, ajid A. could not by any ordinary care have prevented the consequences of B.'s negligence (Jc). (A) N. S. Tuf V. Warmaii. 2 C. B. 546 [62 E. R. 698]. The animal 740, in Ex. Cb. 5 C. B. in that case was a donkey. N. S. 573, 27 L. J. C. P. 322. (/•) Butterfield v. Forrester, 13- (»■) Davies v. Mann, 10 M. & W. East, 60. [10 E. E. 433.] •654 INDIAN CIVIL WRONGS BILL. [5. The X. Railway Company ia entitled to run trains over the line of the Z. Company. A train of Company X. running on the Z. Com- pany's line ia thrown ofE the rails by an obstruction placed there by the negligence of the Z. Company's servants. M., a passenger in the train, is injured. If the driver of the train could, with ordinary care, have seen and stopped short of the obstniotion, the X. Company has, but the Z. Otompany has not, wronged M. (I).] 6. A. is a child of tender years, in the custody of B., who leads A. .across a carriage road without using ordinary care in watching for approaching carriages. O., driving carelessly along the road, runs over both A. and B.; but B. might have avoided the accident with ordinary ■care. C. has not wronged A. (m). 7. A. is a child of tender years, in the custody of B., who allows A. to go alono across the road. O. driving along the road, runs over A. "Whether B. was negligent in letting A. go alone is not material to the question whether O. is liable to A., though it may be material whether O. perceived, or with ordinary care would have perceived, that A. was not capable of using the care and caution which a grown man may reasonably be expected to use (»). Collateral negligence mmaterial. 65. A person who suffers harm by the negligenoe of another is not guilty of contributory negligenoe by reason only that he is negligent, or is otherwise a wrongdoer, in matter irrelevant to the harm suffered by him. Illustration. A. goes out shooting, and a shot fired by him accidentally wounds B. If B. had not a right to be where he was, this may be material as tending to show that A. could not be reasonably expected to know that (Z) A^-mstrong v. L. ^- T. R. for both the child's safety and his Co., L. R. 10 Ex. 47, where the own. ■decision seems to be put on the («) There are many American g;round of proximate cause. [But decisions on points of this kind, see now Mills v. Armstrong, 13' someone way and some the other; App. Ca. 1. The true conclusion 0. W. Holmes, the C/ommon Law, in the case put seems to be that 128, BigeJow L. C. 729. Putting M. has a right of action against aside the [now overruled] doc- "both companies.] trine of "imputed negligenoe" as (m) Waite v. N. E. R. Co., irrational it would seem that the Ex. Ch. E. B. & E. 719, 28 L. J. , real question is whether the de- •Q. B. 258 (1859). Here the fendant should have known that proximate cause of the harm ia he had to do with a helpless or the negligence of the child's cus- comparatively helpleas person, to , todian, not of the other party, whom therefore more than ordi- Tvho is entitled to assume that the nary care was due (clause fi2, ■custodian will use ordinary care sub-clause 3, above). ~ SPECIAL PART. 655 he was likely, by firing then and there, to harm any person, but it is not material otherwise. Action vmder stress of danger caused by another's negligence. 66. A person who suffers harm by the negligence of another is not guilty of contributory negligence by reason only that, being by the other's negligence exposed to imminent danger, he does not act in the manner best fitted to avoid that danger (o). Right to rely on others' Migeoice, and take lesser risk to avoid greater (p). 67. It is not negligence — (a) to rely on the diligence of others unless and until negligence is manifest; (b) voluntarily to incur risk in order to avoid risk or inconvenience to which one is exposed by the negligence of another, and which at the time may reasonably appear to be greater than the risk volun- tarily incurred (p) . Illustrations. 1. A. and B. are the drivers of carriages approaching one another. Each is entitled to assume that the other wiU drive competently and observe the rule of the road, but if and when it becomes manifesit to A. that B. is driving on his wrong side, or otherwise negligently, A. must take such precautions as are reasonably fitted, having regard to B.'« conduct, to avoid a collision. 2. A. is riding in a carriage hired by him from B. The driver pro- vided by B. is incompetent, by reason whereof the horse runs away with the carriage towards a deep nullai. A. jumps out of the carriage to (o) The Sywdl Castle, 4 P. Div. indicated by English decisions and 219; other authorities coUocted dicta, though I do not think it is in Marsden on Collisions at Sea, anywhere laid down in a complete pp. 6, 7 [5th ed. 3, 4]. The rule form; Clayards v. Dethiok, 12 is of importance in maritime law, Q. B. 439; Gee v. Metrop. R. Co., and may be of importance in L. B. 8 Q. B. 161; Robson v. other oases; cf. Wanless v. N. E. N. E. R. Co., L. E. 10 Q. B. ai R. Co., L. E. 7 H. L). 12; cf. 3 J). 274; Lax v. Mayor of Darling- App. Ca. 1193. ion., 5 Ex. D. 28; cf. Horace Qp) Some such rule as this is Smith, 156. loT. 656 INDIAN CIVIL WKONGS BILL. avoid being thrown down the nullah, and in so doing is injured. B. is liable to A. if, under all the circumstanoea, A. acted reasonably in conteinplation of an apparently greater risk, and in order to avoid the same (g). 3. A. is the owner of horses kept in a stable. B. unlawfully digs a trench and places rubbish in the road giving access to the stable, which makes it difficult but not impossible to take horses out. A. attempts to lead a horse out over the rubbish, and the horse falls into the trench and is injured. It is a question of fact whether, under the circumstances, the risk was one which A. might reasonably incur. If it was, B. has wronged A., notwithstanding that A. voluntarily incurred some risk (r). Custody of dangerous things. 68. (s). A person who does any of the foUoAving things: — (a) collects, keeps, or uses any dangerous thing on land occupied or used by him: (h) keeps a dangerous animal: (c) keeps or deals with loaded firearms, explosives, poison, or any other dangerous instrument or goods, or noxious or deadly thing: is bound to take and cause to be taken all reasonably practicable care and caution to prevent harm being thereby caused to others, and is liable as for negligence to make (5') In the summer of 1883 major, Nichols v. Marsland, 2 Ex. several passengers, including two D. 1, &o.), seems needlessly harsh. English judges, were in a pre- The extent of the exceptions made cisely analogous situation in a in latei' decisions shows that it is runaway car on the Northern accepted with reluctance. It has Pacific Railway. Ultimately those not been generally followed iu who did not jump out came to the United States, and in Britisli less harm tlian those who did. India one important application But surely it could not be main- of it has been disallowed as un- tained that it was contributory suited to the facts and conditions negligence to jump out under the of Indian land tenure; Madras circumstances. In some eases it R. Co. v. Zaminddr of Carvate- may be prudent even to run a naguram, L. R. 1 Ind. App. 864. very great risk, as to jump from Nor is there anything answering the roof or top windows of a to it in Roman law. It therefore house on fire. seems to require modification in (r) Clayards v. Bethick, 12 Q. some such way as here proposed. B. 439. This will of course not aifeot (s) The rule in Rvlands v. liability for nuisance. In a case Fletcher, L. R. 3 H. L. 330, that short of that, the requirement of a_man keeps dangerous things at exact diligence is, one would his peril (except as regards vis think, enough. SPKClAIi PART. 657 compensation for any harm thereby caused, unless he proves that all reasonably practicable care and caution were in fact used. Explanations. — 1. Dangerous things for the purposes of this section are fire (not being used in the ordinary wa.v of domestic purposes), earth or wBter artificially collected in large quantities, explosive and inflammable matters, and any other thing likely for default of safe keeping to cause hai'm to neighbouring persons or property. 2. A dangerous animal for the purposes of this section is — (a) any animal of a kind accustomed to do mischief: (b) any animal of •\vhatc\-er kind which the person keep- ing it knows to be fierce, mischievous or vicious. 3. A person who deals with a dangerous thing- and is in good faith ignorant of its dangerous character is not subject to the liability declared by this section (i). Illustrations. 1. A. is the owner of an embankment constructed by aiithority of the Government. Part of this embankment is carried away in a storm, whereby B.'s adjacent land and crops are damaged. If A. has in fact been diligent in constructing and maintaining the embankment in such ;i manner as to be capable of resisting all such violence of weather as in that part of the countiy may be expected to occur, or if the storm was so extraordinary that no practicable precaution could have guarded against its effects, then A. has not wronged B. If the storm was such as might have been reasonably provided against, and if A. has not been .. Bateiiiii,,, L. R. {q) irhithr, 215. lunatic, whether liable for, 54. menace distinguished from, 219. on wife, husband's right of action for. 228. self-defence, 172 sqq., 218. what is, 214. when action barred by summary prores.", 219. when justified by consent, 217. when not justified by consent, 160, 218. words cannot be. 217. Assets: following property or its value into wrong-doer's, 71. Assize: writ of, 13. Assumpsit: action of, its relation to negligence, 440. development of, from general action on the case. 538 — 540. implied, where tort is waived, 547. Average: general law of, 170, 171. Bailee: bailment over by, 378. conversion by, 368, 376. estopped from disputing bailor's title, 367. interpleader by, 367, 368. liable for damage to chattel by negligence of servant, 83 z. liable for theft due to connivance of servant, 88 ::. liable to action of trespass for abusing subject-matter of bailment at will, 376, 377. possession of, distinguished from custody of servant, 347 h. refusal to deliver to true owner on demand, 362, when justified in re-delivering to bailor, 367. Balloon: trespass by, 351 — 353. t;70 INDEX. Bankeupicy: debt digcharged by, in American law, 207. imputation of, to tradesman, actionable, 24:7. malicious proceedings in, actionable, 320. but adjudication must first be set aside, 321. Babeister: immunity of words spoken by, in Court, 266. revising, powers of, 118. office now abolished, 118 u. slander of, 246. Batieey: what is, 214. And see Assault. Boxing: with gloves, lawful, 161. Bebaking Docks: when justified, 394. Buildings : duty of keeping in safe condition, 512, 517, 518. falling into street, 524. occupiers of, their duty to passers by, 522. Business: slander of a man in the way of his, 245. slander on, injunction to restrain, 194, 195. words indirectly causing damage in, 247. Caiens's Act (Lord), 21 .t 22 Vict. c. 27: 428 b. Campbell's Act (Lobd), 6 & 7 Vict. c. 96: as to pleading apology, &c., in action for defamation, 279. Campbell's Act (Lord), 9 & 10 Vict. u. 93: alien, representatives of, may sue under, 67 «/. cause of action under, not cumulative, 70. claim under, does not lie in Admiralty jurisdiction, 67 s. construction of, 68. damages that may be recovered under, 68, 69. illegitimate child cannot recover under, 67 z. peculiar rights created by, 66. relatives who may recover under, 67 =. United States, parallel laws in, 71. Canal: escape of water from, 498. Capacity: personal, with respect to torts, 53 sgq. INDEX. 671 CAREIAGr: owner's liabiliiy to guGst riding in, 531, 532. responsibilities of owner of, 519, 520. OaEEIEE: common, duty of, 540. Case: action on the, development of, 12 — 14. Cattle: bitten by dog, no scienter need be proved, 503. death of, caused by eating wire from dilapidated fence, 495. yew leaves, 494, 495. includes pigs, 478 h. rights of owner of, to safe condition of market-place, 520. trespass by, 353. trespass by, liability for, 396, 488, 500, 501. Cause: " immediate," meaning of, 30. proximate or direct, in law of contributory negligence, 462 sqq. proximate, need not be immediate, 334. proximate, direct or decisive, 467. proximate or remote, 39 sqq. reasonable and probable, for arrest, 224. of action. See Action. Oadtiox: consummate, required with dangerous instrument, 49. And see Negligence. Cheque: conversion of, where indorsement fraudulently altered, 361 m. Children: general licence to public does not extend to, if unaccom- panied, 529. licensees must not be exposed to hidden danger, 528. when deprived of remedy by contributory negligence of parent, &o., 476, 477. Civil Peoceedixcs: malicious bringing of, whether a tort, 319. Clergyman: charge of immoral conduct against, actionable, 246. complaint to, regarding curate, 272, 273. Clue : cases on expulsion from, 126 a, b. chance of being elected to, not subject of legal lose, 242. committee of, quasi-judicial power of, 125. 672 INDEX. CODIFICATIOX: of law of civil wrongs in India, 593. COEECION : actionable without conspiracy, 326, 327. of customers, 328. College: quasi-judicial powers of, 125. Collision : between ships, 479. old and new rules as to division of loss, 479, 480. And see Neglicexoe. COLONi-VL Goveenment: liable for management of public harbour, 61. CoLOXi.u, Legislature: control of, over its own members, 123 s. Colony: Colonial Act of indemnity bars action in England for wrongs included in Act, 205. governor of, liable in courts of colony for debt, 115. Comity: rule of, as to suits affecting foreign sovereigns and states, 116. Comment: fair, not actionable, 256. what is open to, 259. Common : no right of distress by commoners inter sc, 395. right of, nuisance to, 424, 423. Common Caiiriee: duty of, 540. Common Employjient: doctrine of, 100 sqq. negligence, servant's liability to fellow-servant for, 105. no defence for master under Employers' Liability Act, 583 )). relative rank of servants immaterial, 103. sub-contractor, servants of, not fellow-servants of principal contractor, 105. what is, 102. work done under compulsion of law not within doctrine of, 105, 106. Common Eights: immunity in exercise of, 149 — 159. obstruction of, 423. INDEX. 673 COMJIONEH : any, can sue for injury, 418. may pull down house on common after notice, 425. may pull down fence without notice, 425. Commons, IIousr of. See Pauliament. Communication: privileged, what is, 268 sqq. Companies (Consolidation) Act, 1908: references to, 200 t, 209 m. Company: false statements in prospectus of, 286, 287, 299, 302. fraud of directors of, 97. earning profit is not within Public Authorities Protection Act, 210 p. malicious proceedings to wind up, 320. remedy of shareholder against, for fraud, 97 k. Compensation: statutory, for damage done by authorized works. 130. Competition: bad faith in connection with, when acts lawful, 156, 157. in business or trade, no wrong, 149 — 153. unfair, underselling at a loss is not, 316. Compulsion of Law: work done under, not within rule of common employment, 105, 106. Consent: eifeot of, in Justifying force, 160—163, 217, 218. And see Licence. Consequences of Act oe Default: "legal consequence," 334. liability in relation to, 28, 29. of wilful wrong-doer for, 31, 48. natural and probable, 33 sqq., 334. natural in kind though not in circumstance, 49. remote, 38. Conspieacy: acts not in themselves unlawful, inducement of, 334, 335. coercion actionable without, 326. concerted action, not of itself criterion of, 327. customers, coercion of, 327. damage gist of action for, 322. damage, legal, necessary in action for, in America, 324. finding of, whether supplying cause of action, 329. P.— T. 43 674 INDEX. CoxSPIRACY — continued. malice not necessary to cause of action for, 331, 332. "malicious," 329. relation of, to acts of third persons, 326. whether a substantive wrong, 322.' Constable : liable for mistake of fact, 121, 122. limitation of actions against, 210. must produce warrant, 121. powers of, to arrest on suspicion, 221, 222. protection of, in cases of forcible entry, 394, 395. statutory protection of, 121. " Consummate Cake ": cannot always avoid accident, 137. requirement of, 49. CoNTAGiODS Disease; imputation of, 245. CONTEACT: breach of, concurring with delict in Eoman Law, 556. distinguished from tort, 3, 4. procuring, 331 sqq. whether third party can sue for an act which is a, 551, 552. breach of duty, founded on, 542. cause of action in, co-existing with tort, 549. causing breach of, under what conditions a, tort, 556, 557. effect of, on title to property, 343. on negligence, 449. has no place in early forms of action, 14. implied in law, as alternative of tort, 547. inducing breach of, in order to compel fulfilment of other obligations, 334, 335. interference with, actual damage must be proved, 557, 558. law of, complicated with that of tort in province of deceit, 282. measure of damages in, as compared with tort, 566, 567. negligence in performing, how far a tort, 538, 539. overlaps with tort in law of negligence, 439, 440. persuading party to break, actionable, 331 — 333. 1-elations of, to tort, 534 sqq. rights arising from, not affected by suing in case, 543. right of action upon, not extended by changing form, 55, 542. statutory divisions of actions founded on tort or, 577, 578. stranger to, cannot sue for damage consequential on mere breach of, 554. INDEX. 675 Co^•IK.40T — conlhi ii-cd. to marry, exceptional features of, 567. where action of tort lies notwithstanding doubt as to, 545. with one party, compatible with actionable breach of duty in same matter by another, 549. with servant, effect of, on master's 'rights, 552. CONTEACTOE: independent, duties extending to acts of, 519 i, 526, 527. independent, responsibility of oecupier for acts and de- faults of, 516. Contbibution: between wrong-doers, 199. Companies (Consolidation) Act, 1908, as to, 200 t. CONTBIBDTOEY NeGUCEUCE: what it is, 462. accidents to children in custody of adult or unattended, 494. burden of proof, 447. damages not apportionable in cases of, 471. doctrine of " identification " not now law, 473. evidence of, 446—448, 466, 467, 471. in Eoman Law, 592. not punishable as a positive wrong, 178. plaintiff not bound to negative, 449. proper direction to jury, 463. proximate or decisive cause of damage, bars remedy for tort, 462, 470, 471. rule of, founded on public utility, 463, 464. self-created disability to avoid consequences of another's negligence, 468. third persons, of, its effect, 472, 473, 474. United States, separation of law and fact in, 485. unknown in Admiralty jurisdiction, 479. but former Admiralty practice modified by recent legislation, 480. And see Negligence. Conveesion: what is, 359. acts in good faith may be, 361. apparent authority, query as to dealings under, 364, 365. by bailees, 366, 376, 377. by estoppel, 371. claim of title on collateral breach of contract is not, 364. damages, measure of, in action of, 363. distinction between varieties of, and cases of injury without conversion, 370, 371. 43 (2) 676 INDEX. CONVEESION — oontinued. distinguished from injury to reversionary interest, 360. evidence of, what is, 362. hire-purchase agreement, sale or destruction of goods by hirer, 368. of cheque, where indorsement fraudulently altered, 361 m. of non-negotiable document, 370 d. pledgee, abuse of authority by, 368. refusal to deliver to true owner is evidence of, 362. relation to waste, 356. servant, by, in master's interest, 361, 362, 363, 367. Convict: cannot sue, 55. Oopyeight: infringement of, 424. relation of, to possession, 380. Coepokation: crime, imputation of, against, not actionable, 243, 244. , damages against, possibly limited to profit received by principal, 308. liability of, for fraud of agent, 96 /, 308. for Ubel, 59 y. for negligence, 97. for trespass and trover, 59 y. for wrongs, 59. maintenance cannot be committed by, semhle, 338. malicious prosecution, liability for, 60 o, 317, 318. municipal, application of Public Authorities Protection Act to actions against, 210 y. public works, management of, responsibility of corporation for, 60. quasi-corporate association, liability of, for wrongs of servants", 97. Costs: of action against public officer, 210 q. present procedure as to, 185 q. presumed to be indemnity to successful defendant, 319. relation of, to damages, 185 n. trespass, actions for, where damages nominal, 402. Counsel: immunity of words spoken by, 266. County Council: licensing session of, 267 q. owning tramways, is within Public Authorities Protection Act, 210 ?7. INDEX. 677 ■County Codet: statutory distinction of actions in, 644. County Court Judge: powers of, 118. COUET: contributory negligence, proper direction to jury as to, 463. control of, over jury, 279. negligence, functions of court and jury respectively in ca.se3 of, 444, 446, 447, 451, 452. privilege of statements made in, 266. Oourt-IMartial: protection of members of, 119. whether action lies for bringing one before, without pro- bable cause, 122. Covenant: i construction of " nuisance " in, 412 b. writ of, 12 k, 13. Oeime: distinguished from tort, 2, 4. oral imputation of, when actionabl'e, 243. Oeiminal Conveksation: former action- of, 228. CEruiNAL Law: asportation, 353. cause of death, immediate, what is, 38. conversion necessary for larceny, 360. distinction of receiving from theft, 378. forfeiture of deodand, 138. individuals, whether bound to enforce, 203 e. prosecution for public nuisance, 405. self-defence, 172 sgq. ■Ceiticism: allowable, limits of, 256, 260. Oeown: forcible entry, at suit of, 394. prerogative of, in time of war, 123, 171. servants, liability for acts of, 85. Culpa: equivalent to negligence, 16. theory of, in Eoman Law, 538 g. OuLPA Lata: equivalent to dolus, 281, 283, 443. Custody: distinguished from possession, 347. Custom: no action lies for withdrawing, 155. 678 INDEX. CnSTOM OF THE Eealm: meaning of, 541. Customee: intimidation of, 328. right of, to safe condition of buildings, &c., 515 — 519. Damage: act of God, caused by, non-liability for, 496. actual, unnecessary to constitute trespass, 350. breach, or mon-performance of, statutory duty causing, 196. date of, when cause of action arises, 187. execution of authorized works causing, 130 — 136. effect of, as regards limitation, 209. gist of action on case for conspiracy, 322. legal, necessary in action for conspiracy in American Courts, 324. must be shown in action of deceit, 187. or of negligence, 187. "nervous or mental shock,'' causing, whether too remote, 50, 52. particular, necessary in action for public nuisance, 407. not necessary when private right infringed, 418. profit, expected, loss of. as special damage in action for public nuisance, 409. relation of, to wrong, 18. remoteness of, 30 sqq., 333. resulting by inevitable accident from lawful act, 136 sqq-. special, in law of slander, 240. involves definite temporal loss, 242. procuring breach of contract actionable only with, 557, 558. Damages : assessed to what date, 428. Campbell's Act, under, 67. carrying costs, 185 n, q. compensation, not restitution, proper test of, 189. continuing cause of action, in respect of, 428. conversion of non-negotiable instrument, for, 370 (f. costs, relation of, to, 402, 403. death, under Lord Campbell's Act, 67. distinction when motive necessary part of cause of action, 192. excessive, 183, 184. exemplary, 190, 191, 232, 428. false imprisonment, for, 190. false representation, for, 195, 196. INDEX. 670 Damages — con tinieed. forcible entry, for, not recoverable by wrongful ocoupier, 390. gist of action, when damage is, 186. highway, damage to, 189 c. hire-purchase agreement, sale of goods by hirer, 368 s. inadequate, 184. injunction, coupled with, 428 b. juiy, power in assessment of, 278, 279. limitation of, to profit received by principal where defen- dant a corporation, 308. marriage, for breach of promise of, 192, 568. measure of, 29, 30. measure of, in action for inducing plaintiff by false state- ments to take shares in a company, 196 alternative, on one cause of action, 537. at common law in general, 181. damages, 183 — 194. damages or compensation for deceit, 195, 196. injunctions, 194. self-help, 182. statutory duty, for breach of, 196. trespass and conversion largely interchangeable, 349, 350. Remoteness: of consequence or damage, 30 sqq., 333. Heplevin, 346. Kepoets : confidential, to official superiors, 270. fair, of public proceedings, 273. naval and military officers, of, how far privileged, 266. newspaper, of public meetings, 276. P. — T. 45 706 INDEX. Representation : compensation or damages for false, 195, 196. to ^ class of persons, 298. Ees Judicata, 199. Revenue Officehi^: protection of, in cases of forcible entry, 395- Reveesion: injury to, measure of damages, 188, 189, 354 — 356. Revising Rarbisteb: office now abolished, 118 «. powers of, 118. Revocation: of licence, 382 — 384. Right : absolute, at least nominal damages recoverable for violation of, 185. assertion of, distinguished from self-defence, 175. exercise of, not cause of action, 149. whether made wrongful by malice in fact, 157, 158. licence distinguished from, 530. writ of, 12 k, 13. Risk: voluntary taking of, 101, 14i ;, 147, 162—170, 179. Roman Law: concurrent breach of contract with delict in", 550. contributory negligence in, 592. death of party, effect of, on rights of action, 61 sqg. distinction between right to personal security and right oi^ property, 193. inevitable accident, man not liable for, 138, 139 k. legis ttctioncs in, compared with common law forms of action, 536. noxal actions of, 138. obligations, ex delicto, 15. possession, 348, 375 t, 375 «. tlieory of culpa, 538 g. R0MAN-DuT( H Lam': j'ule in Hylunds v. Fletcher consistent with, 492^. Running-down Gases, 145, 193. Rylands t. Fletcher: American opinion as to, 492 h, 506 :. consistent with Roman-Dutch Law, 492 h. rule in, 499 xqq. applies between parties having no interest in soil* 494. INDEX. 707 SCAXDALIM Magnatum, 238 b. Schoolmaster: authoiity of, over pupil, 128. Sciextee: doctrine of, as to damage by animals, 503. SOOTLAMD (law of): aemulatio vicini, 158. , ancient lights, doctrine of, not recognized in, 420 o. compensation for damage by death, 66 x, 70. "common employment," theory of forced upon, 101. trespass by parachute, 37 /'. Seaiien: not within Employers' Liability Act, 587 s. Seductiox; actions for, 230 sgq. damages for, 190, 232. exemplary^ geneiall}' encouraged by the Court, 190, 191, 232. what is service for this purpose, 231 sqq. Self-defence : against wrongful assault, 218. a-ssertion of disputed right distinguished from, 175. damages, nominal, where injury occasioned by, 185. injuries to third person resulting from, 32, 176. right of, 172, 173. Self-Help, 182. And see Abatement, Distress, Recaption. -Sep abate Peoperty: costs and damages payable out of, 57. damages recovered for personal injury are, 57. trespasser on, 58. whether husband can be indemnified from, 58. -Servant: acts of, outside his authority, 93 — 96. arrest of supposed offender by, 92, 93. beating, 227, 228. constructive service, early law of, 234. conversion by, in master's interest, 361, 362, 3S6. Crown, liability of, for acts of, 85. custody or possession of, 347 //. departure from master's business, 87. enticing away, 229. fraud of, 96. 45 (2) 708 INDEX. Seevant — continued. injuries to, by fellow-servants, 99. injury to, when master interferes, 106. intimidation of, 234, 235. may change master pro tempore, 83. menace to, 234, 235. mistake or excess of authority by, 90. negligence of, in conduct of master's business, 86. pilot is not, 84. seduction of, 230 sqq. service, what is course of, 8.5. who is, 80. wilful wrongs of, for master's purposes, 94. And see Master and SBRVA^•T. Service : of young child, 233. proved or presumed in action for seduction, 230 sqq. Sewage: carried on neighbour's land by flood-water, whether a. nuisance, 493 I. Sheep: trespassing, infection of neighbour's sheep by, 500 >-. Sheriff: immunity or liability of, 121, 122. power and duty of, to break door, &c., in execution of pro- cess, 394. remaining unduly long in possession, 401. Ship: authority of master, 129. cargo, duty of owner as to safety of, 520. contributory negligence of, 464, 479. damage, division of, rule of Admii-alty as to, 479. new rule under Maritime Convention^ Act, 1911... 480. liabilitj' of owner as carrier, 540 o. for acts of master, 83, 84. for acts of pilot, excluded by statute, 84. how affected by neglect of statutory re- gulations, 198. shipowner's rights to refuse services of particular tna- 156 157. wharfinger's duty as to condition of bed of river adjacent to wharf, 520. wreck, sunlien. duty of owner to warn other vessels. 520. 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