(Ijnrnpll ICaui ^rl^nnl Hibrary Cornell University Library KD 1949.P77 1895 The law of torts :a treatise on the prin 3 1924 022 355 790 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022355790 STEVENS AND SONS, LlklTED, 119 & 120, CHANCERY LANE, LONDON. NOW READY. VOLS. i. £ ii.: Abandonment— Amendment. Royal 8ro., bound in ha/f vel/tun. Price 25s, per Vol., net, RULING CASES: AEEANGED, ANNOTATED, AND EDITED BY ROBERT CAMPBELL, M.A., Of Lincoln's Inn, Barrister-af-Lam, Adoocate of the Scotch Bar. ASSISTED BY OTHEK MEMBEllS OF THE BAH. WITH AMERICAN NOTES By lEVING BROWNE, Formerly Editor of the Ainericaii Reports, ^-c. firj- Subscribers for Five Volumes in advance will be entitled to them at £ 1 per Volume. LC PLAN OF THE WORK. It is intended in this Work to collect and arrange in alphabetical order of subjects the useful authorities of English Case Law on points of general application. The matter under each alphabetical heading is arranged in sections, in an order indicated at the commencement of the heading. The more important and Euling Cases axe set forth at length, subject only to abridgment where the original report is unnecessarily diffuse. The effect of the less important or subordinate cases is stated briefly in the Notes. The aim of the Work is to furnish the practitioner with English Case Law in such a form that he will readily find the information he requires for ordinary purposes. The Euling Case will inform him, or refresh his memory, as to the principles ; and the Notes will show in detail how the principles have been applied or modified in other cases. The American Notes, by Mr. Ieving Browne, aro intended ju-imarily for American use ; but it is also considered that, particularly on some points which have been much discussed in American Cases, they may be of consider- able value to practitioners here and in the colonies. Each volume of the Work will contain an Alj^habetical Table of Cases reported or refeiTed to ; and when the Work is complete there will be a General Index of Subjects as well as a Table of Cases for the whole. It is estimated that the Work will be carr jpd out in about 25 Volumes, of the size of an average volume of the " Law Eeports " (about 800 pages), and issued at the rate of o'volumes per annum . *j(.''" Prospectus, ivith Specinxen Pages, gratis on application. *„* All Standard Law Works are kept in stock, in law calf and other Hndingi. The Law of Torts : A TREATISE ON THE PEINCIPLES OF OBLIGATIONS ARISING EEOM CIVIL WEONGS IN THE COMMON LAW: TO WHICH IS ADDED THE DRAI'T OF A CODE OP CIVIL WRONGS PEEPAEED FOE THE GOVEENMENT OF INDIA. BY Sir FREDERICK pollock, Bart. OF Lincoln's inn, carrister-at-law ; CORPUS PROFESSOR OF JURISPRUDBNCB IN THE UNIVERSITY OF OXFORD; CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE J LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE ; AND HONORARY DOCTOR OF LAWS IN THE UNIVERSITIES OF EDINBURGH AND DUBLIN. Author of "Principles of Contract,''^ "A Digest of the Law of Fartnership^''^ ^-c. FOURTH EDITION. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, 1895. lONBON : MINTED BT 0. F. BOWOETH, OEEAT NEW STEBBft, I^MEE LANE, E.G. TO THE MEMORY OF THE RIGHT HONOURABLE SIR JAMES SHAW WILLES, Knt. SOMETIME A JUSTICE OF THE COMMON BENCH, A MAN COURTEOUS AND ACCOMPLISHED, A JUDGE WISE AND VALIANT. TO THE HONOURABLE OLIVER WENDELL HOLMES, June., A JUSTICE OF THE STJPEEME JUDICIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS. My Dear Holmes, A preface is a formal and a tedious thing at best; it is at its worst when the author, as has been common in law-books, writes of himself in the third person. Yet there are one or two things I wish to say on this occasion, and cannot well say in the book itself ; by your leave, therefore, I will so far trespass on your friendship as to send the book to you with an open letter of introduction. It may seem a mere artifice, but the assurance of your sympathy will enable me to speak more freely and naturally, even in print, than if my words were directly addressed to the profession at large. Nay more, I would fain sum up in this slight token the brotherhood that subsists, and we trust ever shall, between aU true followers of the Common Law here and on your side of the water; and give it to be understood, for my own part, how much my work owes to you and to others in America, mostly citizens of your own Common- wealth, of whom some are known to me only by their pub- lished writing, some by commerce of letters ; there are some also, fewer than I could wish, whom I have had the happiness of meeting face to face. When I came into your jurisdiction, it was from the Province of Quebec, a part of Her Majesty's dominions VI INTRODUCTION. which is governed, as you know, by its old French law, lately repaired and beautified in a sort of Eevised Version of the Code NapoMon. This, I doubt not, is an excellent thing in its place. And it is indubitable that, in a political sense, the English lawyer who travels from Montreal to Boston exchanges the rights of a natural-born subject for the comity accorded by the United States to friendly aliens. But when his eye is caught, in the every-day advertisements of the first Boston newspaper he takes up, by these words — " Common- wealth of Massachusetts : Suffolk to wit " — no amount of political geography will convince him that he has gone into foreign parts and has not rather come home. Of Harvard and its Law School I will say only this, that I have endeavoured to turn to practical account the lessons of what I saw and heard there, and that this present book is in some measure the outcome of that endeavour. It contains the substance of between two and three years' lectures in the Inns of Court, and nearly everything advanced in it has been put into shape after, or concurrently with, free oral exposition and discussion of the leading eases. My claim to your good will, however, does not rest on these grounds alone. I claim it because the purpose of this book is to show that there really is a Law of Torts, not merely a number of rules of law about various kinds of torts — ^that this is a true living branch of the Common Law, not a collection of heterogeneous instances. In such a cause I make bold to count on your sympathy, though I will not presume on your final opinion. The contention is certainly not superfluous, for it seems opposed to the weight of recent opinion among those who have fairly faced the problem. Tou will recognize in my armoury some weapons of your own forging, and if they are ineffective, I must have handled them worse than I am willing, in any reasonable terms of humility, to suppose. INTEODUCTION. Vll It is not surprising, in any case, that a complete theory of Toi-ts is yet to seek, for the subject is altogether modern. The earliest text-book I have been able to find is a meagre and unthinking digest of " The Law of Actions on the Case for Torts and "Wrongs," published in 1720, remarkable chiefly for the depths of historical ignorance which it occa- sionally reveals. The really scientific treatment of principles begins only with the decisions of the last fifty years ; their development belongs to that classical period of our jurispru- dence which in England came between the Common Law Procedure Act and the Judicature Act. Lord Blackburn and Lord Bramwell, who then rejoiced in their strength, are still with us.* It were impertiaent to weigh too nicely the fame of living masters ; but I think we may securely antici- pate posterity in ranking the names of these (and I am sure we cannot more greatly honour them) with the name of their colleague Willes, a consummate lawyer too early cut off, who did not live to see the full fruit of his labour. Those who knew Mr. Justice Willes will need no explana- tion of this book being dedicated to his memory. But for others I will say that he was not only a man of profound learning in the law, joined with extraordinary and varied knowledge of other kinds, but one of those whose knowledge is radiant, and kindles answering fire. To set down all I owe to him is beyond my means, and might be beyond your patience ; but to you at least I shall say much in saying that from "WiUes I learnt to taste the Year Books, and to pursue the history of the law in authorities which not so long ago were collectively and compendiously despised as " black letter." It is strange to think that Manning was as one crying in the wilderness, and that even Kent dismissed the Tear Books as of doubtful value for any purpose, and * Lord Blackburn is now (1895) the only survivor. Vlll INTEODUCTION. certainly not worth reprinting. You have had a noble revenge in editing Kent, and perhaps the laugh is on our side by this time. But if any man still finds offence, you and I are incorrigible offenders, and like to maintain one another therein as long as we have breath; and when you have cast your eye on the historical note added to this book by my friend Mr. F. W. Maitland, I think you will say that we shall not want for good suit. One more thing I must mention concerning WiUes, that once and again he spoke or wrote to me to the effect of desiring to see the Law of Obligations methodically treated in English. This is an additional reason for calling him to mind on the completion of a work which aims at being a contribution of materials towards that end : of materials only, for a book on Torts added to a book on Contracts does not make a treatise on Obligations. Nevertheless this is a book of principles if it is anything. Details are used, not in the manner of a digest, but so far as they seem called for to develop and illustrate the principles ; and I shall be more than content if in that regard you find nothing worse than omission to complain of. But the toils and temptations of the craft are known to you at first hand ; I will not add the burden of apology to faults which you will be ready to for- give without it. As to other readers, I will hope that some students may be thankful for brevity where the conclusions are brief, and that, where a favourite topic has invited expa- tiation or digression, some practitioner may some day be helped to his case by it. The work is out of my hands, and will fare as it may deserve : in your hands, at any rate, it is sure of both justice and mercy. I remain, yours very truly, FEEDBEIGK POLLOCK. Lincoln's Inn, Vacation, 1886. ADVERTISEMENT TO THE FOURTH EDITION. In this edition there has not been much occasion for material change. I have ventured to dispute the correctness of a recent decision of the Court of Appeal, Tcmpcrton v. RiisseU, '93, 1 Q. B. 715, in so far as it holds that the allegation of malice will make it actionable for either one or more persons to persuade any one, by means not unlawful in themselves, to do or abstain from doing that which it is in his lawful discretion to do or not to do. Another important case, Taylor v. Mancliedcr, Sheffield, and Lincolnshire Rnila-aij Company, '95, 1 Q. B. 134, was reported while the last sheets were under revision, and therefore could receive only brief notice. It is hardly too much to say that Alton v. Midland Raihcay Company, 19 C. B. N. S. 213 ; 34 L. J. C. p. 292, is no longer authority since the observations made on it by the Lords Justices. Some other late cases of interest are noticed in the Addenda. The Employers' Liability Act most unfortunately remains xmamended. It would not be proper to repeat in a practical X ADVEETISEMENT TO THE FOURTH EDITION. law-book the opinion which I recorded in a separate note to the report of the Royal Commission on Labour. The series of " Eevised Eeports " now in progress is cited as R. E. The current series of Law Reports is cited thus : Andreiv V. Crossley, '92, 1 Ch. 492, C.A. Otherwise the same forms of citation are used as in my book on " Principles of Contract," 6th ed., 189i. My cousin, Mr. Dighton N. Pollock, of Lincoln's Inn, has again given me valuable help in the revision of the Index. F. P. Lincoln's Inn, March, 1895. TABLE OF CONTENTS. Book I. GENERAL PART. CHAPTER I. Thb Natube of Toet in Genebai,. Absence of authoritative definition PAGE 1 Historical distinctions 5 Personal wrongs .. . 7 Wrongs to property ,', , . 7 "Wrongs affecting person and property . . • ■ • . 7 Wilful wrongs , , 8 Wrongs unconnected with moral blame , . . 9 Wrongs of imprudence and omission , . 10 Historical anomaly of law of trespass and conversion . . 12 Early forms of action J J . 13 Rationalized version of law of trespass . . . 15 Analogies of Roman law , . , 17 Dolus and Culpa . 17 Liability quasi ex delicto , J 18 Summary of results • 19 CHAPTER II. Peinoipiss of Liability. Want of generality in early law . , General duty not to do barm in modem law Breach of specific legal duty Duty of respecting property Duties of diligence . . Assumption of skill . . Exception of action under necessity 21 22 23 24 24 24 25 Xll TABLE OF CONTENTS. Liability in relation to consequences of act or default . . Measure of damages . . . . . . • • • ■ • ■ " Immediate cause " .. .. .. •• Liability for consequences of -wilful act . . " Natural consequences " .. "Natural and probable " consequence . . Liability for consequences of trespass Consequences too remote . , Liability for negligence Contrasted cases of non-liability and liability : Cox v. Burbidge Lee V. Riley Metropolitan Rail. Co. v. Jackson Non-liability for consequences of unusual state of things : Blytb Birmingham Waterworks Co. . . Sharp V. Powell Whether same rule holds for consequences of wilful wrong : Clark Chambers . . Consequences natural in kind though not in circumstance Damages for ' ' nervous or mental shock " PAOE , 26 , 27 , 28 . 28 , 30 , 32 34 . 35 , 36 , 40 41 , 42 . 42 43 4-5 46 CHAPTER III. Pebsons affected by Torts. 1. Limitations of Personal Capacity. Personal status immaterial in law of tort : but capacity material . . 48 Exceptions : Convicts and aliens . . . . . . . . . . . . 49 Infants . . . . . . . . . . , . . . . . . . 49 Married women : the common law . . . . . . . . . . 51 Married Women's Property Act, 1882 .. .. .. .. ..51 Common law liability of infants and married women . . . . , . 53 Corporations.. ,. .. .. .. .. .. .. ,.53 Responsibility of public bodies for management of works under their control . . . . . . . . . . . . . . . . . . 54 2. Effect of a Farti/s Death. Actio personalis moritur cum persona Qu. of the extension of the rule in Osborn v. GiUett . . Exceptions : Statutes of Edw. III. giving executors right of suit for trespasses , . Of Will. IV. as to injuries to property . , No right of action for damage to personal estate consequential on personal injury . . Lord Campbell's Act : rights created by it 55 57 59 60 60 61 TABLE OF CONTENTS. Xlll Construotion . . Interests of survivors distinct Statutory cause of action is in substitution not cumulative Scottish and American laws Bight to follow property wrongfully taken or converted Eule limited to recovery of specific property or its value : Phillips v. Homfray . . 3. Liability for the Torts of Agents and Servants. Command of principal does not excuse agent's wrong Cases of special duty, absolute or in nature of warranty, gnished Modes of liability for wrongful acts of others Command and ratification , . Master and servant . . Reason of master's liability "Who is a servant Specific assumption of control Temporary transfer of service " Power of controlling the work " explained What is in course of employment (a) Execution of specific orders . , (b) Negligence in conduct of master's business Departure or deviation from master's business (c) Excess or mistake in execution of authority Interference with passengers by guards, &c. Arrest of supposed offenders . . Act whoUy outside authority : master not liable (d) WiLful trespasses, &c., for master's purposes Fraud of agent or servant Liability of firm for fraud of a partner Injuries to servants by fault of fellow- servants Common law rule of master's immunity . . Season given in the later cases . . Servants need not be about same kind of work Provided there is a general common object Relative rank of servants immaterial Servants of sub-contractor. . Volunteer assistant on same footing as servant Exception where master interferes in person Employers' Liability Act, 1880 . . Resulting complication of the law PASB 62 61 64 64 65 distin- 67 67 68 69 70 70 72 74 74 75 76 76 77 78 80 81 82 83 84 85 87 89 90 91 92 93 93 94 94 95 XIV TABLE OP CONTENTS. CHAPTEK IV. G-BNEEAi. Exceptions. Conditions excluding liability for act prima facie wrongful General and particular exceptions . , . . . . PAGB . 97 . 98 1 . Acts of State. Acts of state . . General ground of exemption , , . . Local actions agaiast viceroy or governor Power to exclude aliens . . . . Acts of foreign powers Summary . . , , 2. Judicial a^:ts. Judicial acts . , . . . . Liability by statute in special cases Judicial acts of persons not judges 3. Executive acts. Executive acts Acts of naval and military officers Of other public authorities Indian Act XVIII. of 1850 4. Quasi -judicial acts. Acts of quasi- judicial discretion . . Eules to be observed Absolute discretionary powers Whether duty judicial or ministerial : Ashby v. White 5. Parental and Quasi-parental Authority. Authority of parents Of custodians of lunatics . , , , . , , , , , , , 6. Authorities of Necessity . Of the master of a ship 7. Damage incident to authorized acts. Damage incidentally resulting from lawful act . , Damage from execution of authorized works , , No action for unavoidable damage , . , , Care and caution required in exercise of discretionary powers 8. Inevitable Accident. Inevitable accident resulting from lawful act . . On principle such act excludes Hability . . Apparent conflict of authorities . . 99 100 101 102 102 103 104 106 106 107 108 109 109 110 111 112 112 . . 113 .. 113 .. 114 115 116 117 118 121 122 124 TABLE OF CONTENTS. XV PAGE American decisions : The Nitro-Grlycerine Case (Sup. Ct. V. S.) , . 125 BroTvn r. Kendall (Mass.) 126 Other American oases , . , , . , , . , , , . , . 127 English authorities : cases of trespass and shooting 129 Cases where exception aUowed 132 9. Exercise of Common Rights. Immunity- in exercise of common rights, . Digging -wells, &c., in a man's o-wn land Chasemore v. Richards . . . . , , Other applications of same principle Whether malice material in these cases . , Roman doctrine of ' ' animus -vioino uocendi " No exclusiTe right to names . . , . 10. Leave and Licence : Volenti non Jit iniuria. Consent or acceptance of risk , , . , 145 Express licence , , , . . , , . . , . , , , . . 146 Limits of consent ,, ,, .. .. ., ., ., ,, 146 Licence obtained by fraud . . . , . , . . , , , , , , 149 Extended meaning of volenti non Jit iniuria , , , , . . , , 150 Relation of these cases to ine-vitable accident . . , , . , . ■ 151 Elno-w-ledge of risk opposed to duty of -warning . . . , . . 152 Cases between employers and -workmen : Smith i). Baker ,. ,, 163 Distinction where no negligence at all , , . , . , , , . , 155 Distinction from cases where negligence is ground of action . . . . 155 11. Works of Necessity 157 12. Private Defence. Self-defence 158 Killing of animals in defence of property . . 160 Assertion of rights distinguished from seU-defenoe ,, ,, ., 160 Injury to third persons in self-defence ,. .. ., ., .. 161 13. Plaintiff a Wrong-doer. Harm suffered by a -wrong-doer , , , . , . . . . , , , 162 Sunday traveUing : conflict of opinion in U. S. . . , , . . 164 Cause of action connected with unla-wful agreement ., ., ..165 CHAPTER V. Of Remedies foe Toets. Diversity of remedies .. .. .. .. .. <. ..166 SeU-help 167 Judicial remedies : damages 168 XVI TABLE OF CONTENTS. PAOB Nominal damages . . . . . . . . . . . . . . . . 169 Nominal damages possible only when an absolute right is infringed . . 170 Cases where the damage is the gist of the action . . . . . . 171 Peculiarity of law of defamation 173 Ordinary damages . . . . . . . . . . . . ■ ■ . . 173 Exemplary damages . . . . . . . . . . . . . . 174 Analogy of breach of promise of marriage to torts in this respect . . 177 Mitigation of damages 177 Concurrent but severable causes of action . . . , . . . . 177 Injunctions .. ., .. ,. .. .. ., .. ..178 On what principle granted , . . . . . . . . , . . 179 Former concurrent jurisdiction of common law and equity to give compensation for fraud .. ., .. .. .. .. ..179 Special statutory remedies when exclusive . . , , . , . . 180 Joint wrong-doers . . , . . . . . . . . , . . . . 182 Kules as to contribution and indemnity .. ., .. ., ..183 Supposed rule of trespass being " merged in felony " . . . . 185 No known means of enforcing the rule if it exists .. .. .. 186 Locality of wrongful act as aflfectiug remedy in English Court .. 187 Acts not wrongful by English law . . . . . , . . . . 188 Acts justified by local law . . .. .. .. .. .. .. 188 Act wrongful by both laws .. .. .. .. .. ..189 PhiUips V. Eyre . . . , . . 189 Limitation of actions . , . . . . . . . . . . . . 192 Suspension of the statute by disabilities . . ,. .. .. ..193 From what time action runs . . . . . . . . . , . . 193 Special protection of justices, constables, &c. . . . . . . . . 194 Exception of concealed fraud . , . . . . . . . . . . 194 Conclusion of General Part .. .. .. ,. .. ..195 Book II. specific "whongs. CHAPTER VI. Pbesonai, WBONaS. Assault and Battery. What is a battery , . What an assault Excusable acts Self-defence . . Menace distinguished from assault Summary proceedings when a bar to civil action 196 197 199 201 202 202 TABLE OF CONTENTS. XVll II. False Imprisonment, What is false imprisonment Justification of arrest and imprisonment Who is answerable . . Reasonable and probable cause III. Injuries in Family Relations. Protection in personal relations Historical accidents of the common law herein Trespass for taking- away wife, &o., sca&per quod servitium amisit " Criminal conversation " Enticing away servants Actions for seduction in modern practice Damages Services of young child Capricious operation of the law . . Constructive service in early cases Intimidation of servants and tenants FAQE . 202 . 204 . 205 . 207 208 209 210 211 212 213 214 215 215 216 217 CHAPTER VII. Defamation. Civil and criminal jurisdiction . . . . . . , , . . , . 219 Slander and libel . . . . . . . . . . . . . . , . 219 1. Slander. When slander is actionable . . . . . . . . , . , . 221 Meaning of " ^nma /a«e libellous " .. .. .. ,. ,. 221 Special damage . . . . . . . . . . , , , . , . 222 Repetition of spoken words . . . . . . , , . . . , 223 Special damage involves definite temporal loss . . . . . . . , 223 Imputation of criminal offence . . . . . . . . . , . . 224 Charges of mere immorality not actionable , , , , . , . . 225 Slander of Women Act . . . , . , , , . . . . , . 225 Imputation of contagious disease. . .. .. .. .. .. 226 Evil- speaking of a man in the way of his business . . . , . . 227 Words indirectly causing damage to a man in his business . . . . 229 2. Defamation in general. Defamation . . . . . . . . . . . . . . . . . . 229 " Implied malice " 230 What is publication . . . . . . . . . . . . . . 230 Vicarious publication 232 Construction of words : Innuendo.. .. .. .. .. ..233 Libellous tendency must be probable in law and proved in fact . . 234 Repetition and reports may be libellous 235 P. h XVlll TABLE OP CONTENTS. 3. Exceptions. PAOB Exoeptiona : fair comment . . . . . . . , . . • . 236 What is open to comment, matter of law . . . . . . . . 238 Whether comment 18 fair, matter of fact . . . . . . . . 238 Justification on ground of truth . . , . . . , ■ . . ■ • 239 Must be substantially complete . . . . . . . . . . . . 240 Defendant's belief immaterial , , , , . . . . . . • • 241 Parliamentary and judicial immunity . . , . . . . . . . 24 1 Other persona in judicial proceedings ,, .. .. .. •• 242 Keporta of ofBcers, &c. . . . . , , . . . , . . . . 243 Qualified immunity of " privileged communications " ., .. 244 Conditions of the privilege . . . , , , , , . . . . 244 " Express malice " .. ., ,, .. .. ,. .. 245 What are privileged occasions , , , . , , . . . . . . 246 Moral or social duty . . . . . . . . . . . , . . 246 Self -protection . , . , , , . . . . . . , , . . 247 Information for public good . . . . . . . , . . . . 247 Fair reports . . . . . , . , . , . . . . . . . . 248 Parliamentary papers . , . . . . , , . . . . . . 249 Parliamentary debates and judicial proceedinga . , . . . . 249 Volunteered reports , . . , . . . . . , . . . . 251 Excess of privilege . . . . . . . . . . . . . . . , 252 Honest belief ia not necessarily reasonable belief . . . . . . 253 Power of jury in assessing damages . . . . , , , , , . 254 Statutory defences . . . . . , . . . . . . . . . . 254 Limits of interrogatories in action for ILbel . . . , . . . . 254 Bad reputation of plaintiflE , . , . . , . . . . , , 254 Injunctions . . . , . . . . . . . . . . . , , . 255 CHAPTER VIII. Weongs op Fbaitd and Malice. I. Deceit. Nature of the wrong Concurrent jurisdiction of common law and equity Difficulties of the subject : complication with contract . . , . 257 Queationa of fraudulent iatent .. .. .. ,, .. ..258 Fraud of agents 259 General conditions of right of action , . . , . , . . , , 259 (a) Falsehood in fact . . . . . . , , , , . , 261 Misrepresentations of law . . . . . . , , , . 262 Falsehood by garbled statements . , . , , , . . 263 (b) Knowledge or belief of defendant . , . , , . . , 263 Eepreseutations subsequently discovered to be untrue . . 267 Eeckleaa aasertiona . . , . . . , . , , . . 269 Breach of special duty to give correct information. . .. 269 Estoppel. Burrou-es v. Lock : former supposed rule of equity 270 256 256 TABLE OF CONTENTS. XIX (o) Intention of the statement 271 Eepieseutations to class : Polhill v. Walter 272 Denton «'. Gr. N. R. Co. 273 Peek V. Gumey 274 (d) Reliance on the representation 274 Means of knowledge immaterial -withont independent in- quiry . . 275 Perfunctory inquiry will not do 276 Ambiguous statements 277 (e) Lord Tenterden's Act 278 Quaere as to law under Judicature Acts 279 Misrepresentation by agents . . . , . , , , . , 280 Liability of corporations herein , . , , 282 Reason of an apparently hard law 283 11. Slander of Title. Slander of title 284 Recent extensions of the principle 284 Trade marks and trade names 287 III. Malicious Frosecution and Abuse of Process. 288 Malicious civil proceedings 289 IV. Other Malicious Wrongs. Conspiracy 292 Relation of conspiracy to lawful acts or forbearances of third person L 295 Malicious interference with one's occupation . . 295 Contract 297 Or franchise 297 Maintenance , , 298 CHAPTER IX. Weonqs to Possession aito Peopeett. I. Duties regarding Property generally. Absolute duty to respect other's property Title, justification, excuse . . Title dependent on contract Exceptional protection of certain dealings in good faith Common law rights and remedies Possession and detention , , . . . . . . Trespass and oonTcrsiou , . Alternative remedies 62 299 299 300 301 302 303 305 306 XX TABLE OP CONTENTS. II. Trespass. What shall be said a trespass Quaere concerning balloons Trespass to goods . . PAGE . 307 . 308 . 310 III. Injuries to Beversim. Wrongs to an owner not in possession . . rV. Waste. What is waste Modem law of waste : tenants for life . . Landlord and tenant 311 313 314 315 V. Conversion. Relation of trover to trespass What amounts to conversion Acts not amounting to conversion Dealings under authority of apparent owner Acts of servants Redelivery by baOees Abuse of limited interest . . Conversion by estoppel VI. Injuries between Tenants in Common. Trespasses between tenants in common , . 316 317 320 321 322 323 324 327 327 VII. Hxtended protection of Possession . Rights of de facto possessor against strangers . . Rights of owner entitled to resume possession . . Rights of derivative possessors Possession derived through trespasser 329 332 333 333 VIII. Wrongs to Easements, ^c. Violation of incorporeal rights IX. Grounds of Justification and Excuse. Licence Revocation of licence Distinction from grant as regards strangers Justification by law Re-entry : herein of forcible entry Fresh re-entry on trespasser Recaption of goods . . 335 336 337 341 342 343 345 346 TABLE OF CONTENTS. XXI Process of law : breaking doors Distress Damage feasant Entry of distrainor . . Trespasses justified by necessity Fox-hunting not privileged Trespass «4 i«i<(o ,. Taking or retaking goods . . Costs where damages nominal Injunctions . . Effect of changes in procedure X. Remedies. PAOE . 348 . 349 . 349 . 350 . 351 . 353 . 353 356 356 358 368 CHAPTER X. NTnSAUOB. Nuisance, public or private Private right of action for public nuisance Special damage must be shown . . Private nuisance, what Kinds of nuisance affecting — 1 . Ownership 2. lura in re aliena . . 3. Convenience and enjoyment , , Measure of nuisance Injury to health need not be shown Plaintiff not disentitled by having come to the nuisance Innocent or necessary character of offensive occupation, ence of place, no answer Modes of annoyance Injury common to the plaintiff with others Injury caused by independent acts of different persons Obstruction of lights Nature of the right to light Any substantial diminution is a wrong . . Supposed rule as to angle of forty-five degrees Enlargement or alteration of lights " Nuisance " to market or ferry . . Eemedies for nuisance Abatement . . Notice to wrong-doer Nuisances of omission Old writs 359 360 361 363 364 365 365 366 366 366 368 369 371 372 372 372 373 374 374 376 376 376 377 378 379 xxu TABLE OF CONTENTS. Damages Injunctiona . . Difficulty or expense of abatement no answer Parties entitled to sue for nuisance . . Parties liable .. 379 .. 380 .. 385 .. 385 .. 386 CHAPTER XI. NEOLiaBNOE. I. The general Conception. Omission contrasted witli action as ground of liability General duty of caution in acts . . Overlapping of contract and tort Definition of negligence . . Standard of duty is external , . Diligence includes competence II. Evidence of Negligence. Negligence a question of mixed fact and law . . Burden of proof Wbere tbere is a contract or undertaking . , . , Things within defendant's control Common course of affairs judicially noticed On evidence sufficient in law, question is for jury Metropolitan R. Co. v. Jackson . . Cases of level crossings . , . , . . . , " Invitation to alight " . . , , Complications with contributory negligence . . " Evidence of negligence : " Smith v. L. & S. W. R. Co No precise general rule Due care varies as apparent risk : application of this to accidents through personal infirmity Distinction where person actiag has notice of special danger to infirm or helpless person 389 390 391 392 394 396 396 397 399 400 401 401 403 404 406 407 407 409 410 411 III. Contrilutory Negligence. Actionable negligence must be proximate cause of harm : where plaintifB's own negligence proximate cause, no remedy . , . , 412 Tufi V. Warman . . . , . . . . . . . . . . . . 414 Radley J). L. & N. W. R. Co 415 " Proximate " or " decisive " cause .. .. .. .. ,. 417 Self-oreated disability to avoid consequences of another's negligence 418 TABLE OF CONTENTS. XXIU Earlier illustrations : Dayies v. Mann Butterfield V. Forrester ., ., ., The exploded doctrine of " identification " Accidents to children in custody of Adult Children, &c., unattended.. Child V. Heam Admiralty rule of dividing loss . . IV. Auxiliary Bules and Fresumptions. Action under difficulty caused by another's negligence No duty to anticipate negligence of others , , . , Choice of risks under stress of another's negligence . , Clayards v. Dethick Doctrine of New York Courts Separation of law and fact in United States PA(JB , 419 . 419 , 422 , 425 . 426 . 427 , 428 429 430 431 432 433 435 CHAPTEE XII. Dtjties of iNStJBiNa Safety. Exceptions to general limits of duties of caution Kylands v. Fletcher Exception of act of God . . Act of stranger, &c. Authorized works . . G. W. K. Co. of Canada v. Braid Other cases of insurance liability. . Duty of keeping in cattle . . Dangerous or vicious animals Fire, firearms, &o. . . Duty of keeping in fire Carrying fire in locomotives Fire-arms : Dixon v. BeU . . Explosives and other dangerous goods Gas escapes . . Poisonous drugs : Thomas v. Winchester Difficulties felt in England : George v. Skivington . . Duties of occupiers of buildings in respect of safe repair Modem date of the settled rule : Indermaur v. Dames Persons entitled to safety . . Duty in respect of carriages, ships, &c. Limits of the duty . . Volenti non fit iniuria Duty towards passers-by . . .. 437 .. 438 .. 444 .. 446 .. 446 .. 447 .. 448 .. 449 .. 450 .. 451 .. 452 .. 453 .. 454 .. 455 .. 456 .. 456 .. 458 .. 459 .. 460 .. 462 .. 464 .. 466 .. 466 .. 467 XXIV TABLE OF CONTENTS. Presumption of negligence {res ipsa loquitur) Distinctions . . Position of licensees Host and guest Liability of licensor for " ordinary negligence " Owner not in occupation . . PAGE . 468 . 470 . 471 . 473 . 474 . 474 CHAPTER XIII. SpeoiaI; Relations of Conteaot and Tobt. Original theory of forms of action . . . . . . . . . . 475 Actions on the case . . .. .. .. .. .. .. .. 476 Causes of action : modern classification as founded on contract or tort 477 Classes of questions arising . . , . . . . . . . . . 478 1. Alternative Forms of Remedy on the same Cause of Action. One cause of action and alternative remedies . . . . . . . . 478 Common law doctrine of misfeasance . . . . . . . . . . 478 Special duty of carriers and innkeepers by " custom of the realm " . . 481 Alternative of form does not affect substance of duty or liability . . 482 In modem law obligation whoUy in contract .. ., .. ..484 Limits of the rule . . . . . . . . . . . , . . . , 485 2. Concurrent Causes of Action. Cases of tort, whether contract or no contract between same parties 486 Contract " implied in law " and waiver of tort . . . . . . 488 Implied warranty of agent's authority : CoUen v. Wright . . , . 489 Concurrent causes of action against different parties . . . . . . 490 DalyeU v. Tyrer . . . . . . . . . . . . . . , . 490 Foulkes V. MetropoKtan Dist. R. Co. . . . . . , , . . . 490 Causes of action in contract and tort at suit of different plaintiffs . . 491 Alton V. Midland R. Co. : qii. whether good law . . . , . . 492 Winterbottom «. Wright, &c. . . . . . . . . . , . . 495 Concurrence of breach of contract vrith delict in Roman law . , 497 3. Causes of Action in Tort dependent on a Contract not between the same Farties. Causes of action dependent on a collateral contract What did Lumley v. Gye decide ? Special damage Malice Question of remoteness of damage Motive as an ingredient in the wrong American doctrine . , 497 497 498 499 500 501 502 TABLE OF CONTENTS, XXV Wilful interference -with contract Damage to stranger by breach of contract Position of receiver of erroneous telegram: different views England and United States The conflict considered on principle Uncertainty still remaining in English doctrine Character of morally innocent acts affected by extraneous contract 4. Measure of Damages and other incidents of the Remedy. Measure of damages Rule as to consequential damage . . Penal character of action for breach of promise of marriage . . Contracts on which executors cannot sue n PAGE . 502 . 603 604 506 508 608 510 511 512 513 APPENDIX. A. — Historical note on the classification of the forms of personal action. (By Mr. P. W. Maitland.) 515 B.— Employers' Liability Act, 1880 523 C. — Statutes of Limitation : 21 James I., 0. 16, ss. 3, 7 530 4 & 6 Anne, u. 3, B. 19 531 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act), s. 12. . 632 D.— Contributory negligence in Roman law . . . . . . . . 533 INDIAN CIVIL WRONGS BILL. Peefatobt note Genebai paet — Chap. I. General principles of liability II. General exceptions SPEOIAIi PABT — III. Assault and false imprisonment IV. Defamation . . V. Wrongs against good faith VI. Wrongs to property VII. Nuisance VIII. Negligence . . IX. Of damages for civil wrongs 536 . 641 550 561 . 563 . 574 . 579 . 584 . 590 • • • • . 601 ( xxvi ) Pp. 24, 181- ADDENDA. As to the imposition of statutory duties not necessarily giving rights of private action for damage suffered through breach of such duties, see further Saunders v. Holborn District Board of Works, '95, 1 Q. B. 6i, 64 L. J. Q. B. 101, 15 &. Jan. 381. P. 47— I have not been able to find any report accessible in England of the New York case here referred to in which CouUas's case was not followed. An abstract is given in 9 Gen. Dig. (Rochester, N. Y. 1894) 224 9 a. P. 143— Corporation of Bradford v. Fickles is now reported on appeal, '95, 1 Ch. 145, 64 L. J. Ch. 101. Lord Wensleydale's dictum in Chasemore y. Richards was approved in express terms by Lindley and A. L. Smith, L.JJ., and in effect, though not so strongly, by Lord Herschell. In the case at bar the utmost that was alleged against the defendant was that he intended to divert underground water from the springs that supplied the plaintiff Corporation's works, not for the benefit of his own land, but in order to drive the Corporation to buy him off. This, as pointed out by Lord Herschell and A. L. Smith, L.J., might be unneighbourly conduct, but could not be called malicious, the main object being not harm to the plaintiff but gain to the defendant. The actual decision, therefore, does not categorically deny the doctrine of " animus vicino nocendi, " but all the judges who took part in the case have expressed themselves against it so strongly that the point may be practically deemed settled. The judgment below was reversed on the construction of a special Act, the Court of Appeal holding that it did not restrain the defendant's general rights. P. 201— The rule as to burden of proof in cases of negligence was held not to apply to a case where the defendant had maintained a dangerous nuisance, and the plaintiff, a young chUd, had suffered such harm as that nuisance (a row of spikes on the top of a low wall) was hkely to cause. Fcnna v. Clare ^- Co., '95, 1 Q. B. 199. P. 254— As to payment of money into Court with an apology in actions for libel contained in a newspaper, add reference to the amending Act, 8 & 9 Vict. c. 75, and Dunn v. Devon, ^-c. Newsipaper Co., '95, 1 Q. B. 211, n. P. 298— Alabaster v. Harness has been affirmed in the Court of Appeal, '95, 1 Q. B. 339, 64 L. J. Q. B. 76. P. 323— That a person holding goods as a warehouseman or the like may make himself hable as a bailee by attornment, and be estopped as against the person to whom he has attorned, notwithstanding evident want of title, see Henderson v. IFilliams, '95, 1 Q. B. 521, C. A. Pp. 310, 377, 585— Lemmon v. Webb has been affirmed in the House of Lords, '95, A. C. 1. Pp. 380, 385— The jurisdiction existing siuce Lord Cairns' Act to award damages in lieu of an injunction does not carry wi^h it a discretion to refuse an injunction in cises, especially of continuing nuisance, where the plaintiff is entitled to that remedy under the settled principles of equity. Shelfer v. City of London Electric Lighting Co., '95, 1 Ch 287 C. A. INDEX OF CASES. Abdul Haum r. Tej Chander Mukarji, 571. Abraham v. Eeynolds, 473. Abrahams v. Deakin, 84. Abrath v. N. E. Rail. Co., 288, 577, 578. Ackers r. Howard, 112. Acton!'. Blundell, 130, 140, 143. Adams v. L. & T. Rail. Co., 431. Adamson v. Jarvis, 183, 184, 549. Addie o. Western Bank of Scot- land, 86. Aginoourt, The, 114. Alabaster v. Harness, 298, Add. Alderson i\ Waistell, 123. Aldred's Case, 368, .?86. Aldrioh v. Wrig-ht, 160. Alexander r. Ht. E. Rail. Co., 240. V. Jenkins, 228. V. Southey, 319. Allbutt r. General Council of Medical Education, 110, 249. Allen V. L. & S. W. Hail. Co., 83, 548. V. Martin, 358. AlHnson i/. General Council, &o., 111. Allsop V. Allsop, 224. Alton V. M. Rail. Co., 492, 493, 494, 495, 513. Amann v. Damm, 573. Ambergate v. M. Rail. Co., 349. Ames 11. Union Rail. Co., 493. Anderson v. Gorrie, 104. Anderson v. RadcliiEfe, 335. Angle V. Chicago, St. Paul, &c. Rail., 502. Angus V. Clifford, 266, 270. Anthony v. Haney, 347. Applebee v. Percy, 451. Arlett V. EUis, 378._ Armory v. Delamirie, 330, 342. Armstrongt). L.&Y.RaU.Co., 593. Arnold v. Holbrook, 351. Ash V. Dawnay, 355. Ashbyi). White, 112, 171, 298, 578. Asher v. Whitlock, 330. Ash-worth v. Stanwix, 94. Atkinson v. Newcastle Waterworks Co., 24, 181, 182. Attack V. Bramwell, 354. A.-G. V. Cambridge Consumers' Gas Co., 381. V. Colney Hatch Lunatic Asylum, 3S5. V. Gas Light and Coke Co., 119. V. Horner, 336. V. Manchester, Corporation of, 382. V. Metropolitan Rail. Co., 117. V. ShefiBeld Gas Co., 381. f. Tomline, 136. Austin v. Dowling, 206. r. G.W. Rail. Co., 483,486. Australian Newspaper Co. v. Ben- nett, 234. Avis V. Newman, 314. Aynsley v. Glover, 373, 374. B. Backhouse V. Bonomi, 172, 193. Baddeley v. Earl Granville, 466, 525. BairdtJ. Wells, 111. Baker v. Carrick, 247. V. Sebright, 315. Baldwin v. Casella, 451. V. Elphinston, 231. BaU, Ex parte, 186, 187. V. Ray, 370. Ballacorkish Mining Co. v. Harri- son, 139. Ballantine v. Golding, 192. BaUard v. Tomlinsoa, 140, 444. Balme v. Hutton, 108, 318. Baltimore and Ohio R. R. Co. v. Baugh, 96. Bamford v. Turnley, 368, 369, 586. Bank of New South Wales v. Owston, 83. Barber v. Peuley, 363. XXVIU INDEX OF CASES. Barker v. Braham, 69, 205. V. Eurlong, 318, 322, 332. Barnes v. Ward, 162, 467, 599. Bamett v. Guildford, 335. Barry v. Croskey, 260. Barton v. Taylor, 109. Barton's Hill Coal Co. v. Reid, 71. Barwick ». English Joint Stock Bank, 70, 86, 282, 284, 545. Bastard v. Hancock, 621. Batchelor r. Eortescue, 473. Baten's Case, 365, 379. Bayley r. M. S. & L. E. Co,, 81, 82, 548. Beasley v. Eoney, 52. Beaumont «). Greathead, 170. Becher v. G. E. Rail. Co., 492. Beckett v. M. Bail. Co., 362, 584. Beckham v. Drake, 513. Beddall v. Maitland, 343, 344. Beddowi;. Beddow, 178. BeU V. M. Bail. Co., 47, 176. Benjamin v. Storr, 363, 584. Benton v. Pratt, 285, 502. Bernina, The, 413, 420, 435, 592. Berringer v. G. E. E. Co., 490. Berry v. Da Costa, 176, 513. Bessey v. Olliott, 130. Betts V. Gibbins, 183, 184, 549. Bhugwau Meetha v. Kasheeram Govurdhun, 553. Bhyran Pershad v. Isharee, 562. Biddle v. Bond, 324. Birdi). Holbrook, 151, 161. V. Jones, 203. Biscoe V. G. E. Rail. Co., 118, 119, 554. Bishop i>. Balkis Consohdated Co., 279. Black V. Christchurch Einance Co., 453. Blades v. Higgs, 334, 347. Blad's Case (Bladi;. Bamfield), 188, 190. Blair ». Bromley, 87. Blake v. Barnard, 198. V. M. Rail. Co., 61, 63. Blakemore v. Bristol and Exeter Rail. Co., 473. Blamires v. L. & Y. Rail. Co., 182. Blisset V. Daniel, 112. Bloodworth v. Gray, 227. Blyth V. Birmingham Waterworks Co., 36, 42, 392, 409. Boden v. Eoscoe, 349. Bolch«>. Smith, 472, 601. Bolingbroke v. Swindon Local Board, 84. Bonnard v. Perryman, 179, 255. Borrows v. Ellison, 193. Boson u. Sandford, 521. Boston & Albany E. E. Co. -i/. Shanly, 456. Bound V. Lawrence, 528. Bourne v. Fosbrooke, 330. Bowen v. Anderson, 387. V. HaU, 297, 498, 502, 508, 578. Bower v. Peate, 471. Bowker v. Evans, 55. Bowyer v. Cook, 346, 356. Box V. Jubb, 446. Boxsius V. Goblet Frferes, 231. Bradford, Corporation of, v. Pickles, 143, Add. Bradlaugh ». Gossett, 109. V. Newdegate, 298. Bradshaw v. L. & T. RaU. Co., 61. Brannigan v. Robinson, 523. Bridge v. Grand Junction Rail. Co., 419, 421, 429. Bridges ■;;. N. L. RaU. Co., 402, 407. Briggs V. Union Street Rail., 430. Brinsmead v. Harrison, 182, 320. Bristol & W. of England Bank v. M. Rail. Co., 327. British Mutual Banking Co. v. Charnwood Forest R. Co., 85, 87. British S. Africa Co. v. Companhia de Mocjambique, 189, 190. Broadbent v. Ledward, 518. Broder v. SaUlard, 368, 370. Bromage v. Prosser, 230. Brooker v. Coffin, 225. Broughton v. Jackson, 207. Brown v. Boorman, 480. ■ V. Eastern and Midlands Rail. Co., 47. V. Kendall, 123, 126, 130, 134, 443, 555. «. Notley, 358. Browne v. Dawson, 346. Brownlie v. Campbell, 257. Brunsden v. Humphrey, 178. Brunswick, Duke of, v. King of Hanover, 103. 1). Harmer, 231. Bryant*. Herbert, 16, 518,520,522. ■ V. Lefever, 372. Bubb p. Telverton, 315. Eucher i). Cheshire, 165. Buckley 4). Gross, 331. Buddie V. WiUson, 481. Bullers v. Dickinson, 375. Buhner v. Buhner, 62. Burdett v. Abbot, 348. Burger v. Carpenter, 502. INDEX OF CASES. XXIX Burgess v. Burgess, 145. V. Gray, 74. Biirling v. Read, 376. Bumand v. Haggis, 50. Burns v. Poulson, 78. Buron f. Denman, 101. Bnrroughes v. Bayne, 312, 319. Burrowes «;. Look, 180, 270, 271. Burrows v. Erie Rail. Co., 434. Bush. V. Steinman, 73. Butler V. M. S. & L. Kail. Co., 338. Butterfield i'. Forrester, 419, 420, 593. Byrne v. Boadle, 468, 600. ByweU Castle, The, 430, 690, 594. C. CabeU v. Vaughan, 521. Calder v. Halket, 105. Caledonian Kail. Co. v. Walker's Trustees, 116. CaOiope, The, 465. Cameron v. Nystrom, 75, 93. Campbell r. Spottiswoode, 236, 237. Cape V. Scott, 349. Capital and Counties Bank v. Henty, 230, 233, 564, 566, 568. Carey v. Ledbitter, 369. Carpue r. L. & B. Kail. Co., 400. Carrington v. Taylor, 296. Carslake v. Mapledoram, 227. Carstairs v. Taylor, 446. Carter v. Drysdale, 328. — V. Thomas, 158. Cart-wright, Re, 314. Castle*). Duryee, 127. Central Rail. Co. of Venezuela v. Kisoh, 277. Chaffers v. Goldsmid, 298. Chamberlain v. Boyd, 224. V. Hazelwood, 212. 41. Williamson, 57, 513, 521. Chapman v. Auckland Union, 380. V. RothweU, 462, 599. Charles v. Taylor, 92. Chasemore v. Richards, 139, 143, 441, 556, Add. Chatham Furnace Co. v. MofEatt, 265. Chicago M. & S. Rail. Co. v. Ross, 96. Chifferiel v. Watson, 173. Child V. Heam, 427, 451. V. Sands, 521. Chinery v. Viall, 325, 483. Christopherson v. Bare, 200. Chunder Narain Singh v. Brijo Bullub Gooyee, 551. City of London Brewery Co. v. Tennant, 372, 373. Clark V. Chambers, 40, 43, 44, 45, 425, 427, 544. V. Molyneux, 248, 253. V. Woods, 107. Clarkson v. Musgrave, 527. Clayards v. Dethick, 432, 434, 594, 595. Cleary «). Booth, 113. Cleather v. Twisden, 87. Clements j>. Flight, 518. V. L. & N. W. R. Co., 524. CUfle«). M. Rail. Co., 591. Closson i>. Staples, 290. Clough V. L. & N. W. Rail. Co., 261. Clowes T. Staffordshire Potteries Waterworks Co., 385. Cobb V. G. W. Rail. Co., 41, 404. Cockle V. S. E. RaQ. Co., 406. Colchester, Mayor of, v. Brooke, 419. ColeK. Turner, 196, 199, 561. CoUard ,. Marshall, 179, 255. Collector of Sea Customs v. Puuniar Chithambaram, 551. Collen V. Wright, 58, 489. Collins V. Evans, 184, 263. CoUis V. Selden, 466, 496. Commissioners of Sewers v. Glasse, 377. Commonwealth v. Collberg, 147. V. Pierce, 201, 396. Consolidated Co. v. Curtis, 322. Cook I'. N. Met. Tramways Co., 528. Cooke*;. Forbes, 381. Cooper V. Crabtree, 358. V. Willomatt, 321, 324. Corby v. Hill, 342, 467, 472, 599. Comfoot V. Fowke, 281. Cornish v. Accident Insurance Co., 155, 583. V. Stubbs, 339. Coryton v. Lithebye, 520. CottereU D. Jones, 291. Cotton V. Wood, 397, 398, 591. Couch*!. Steel, 181. Coulter *'. Express Co., 434. Coupe Co. V. Maddick, 317. Courtenay *;. Earle, 480. Coward*;. Baddeley, 199, 561. Cowley *>. Newmarket Local Board, 182. Cox *'. Bm-bidge, 40, 41, 449, 544. *;. G. W. Rail. Co., 524. XXX INDEX OP CASES. Coxhead v. Richards, 247, 573. Crabtree v. Robinson, 351. Cracknell v. Corporation of Thet- ford, 118. Crafter v. Metrop. Rail. Co., 401, 409. Cripps V. Judge, 523. Croft V. Alison, 78. Crossley v. Lightowler, 367, 588. Crowburat ». Amersham Burial Board, 444. Crumble v. "Wallsend Local Board, 194, Crump V. Lambert, 366, 369. CuUen V. Tbomson's Trustees and Kerr, 67. Cundy V. Lindsay, 301, 509. Cutts V. Spring, 330. D. Dalston v. Janson, 480. Dalton V. Angus, 336, 372. V. S. E. Rail. Co., 63. DalyeU v. Tyrer, 74, 490. Danby v. Lamb, 518. Dandt). Sexton, 310. Daniel v. Ferguson, 381. ■ V. Met. Rail. Co., 431. Darley Main Colliery Co. v. Mit- chell, 172, 194, 542. Dashwood «). Maarniao, 315. Davey v. L. & S. W. Rail. Co., 405. Davies, Ex parte, 324. ■ V. Mann, 419, 420, 421, 593. . V. Marshall, 149. V. Snead, 246, 574. ». Solomon, 224. V. Williams, 376. Davis V. Duncan, 238. V. Gardiner, 226. V. Saunders, 132. v. Shepstone, 239, 248. Dawkins II. Antrobus, 111, 553. V. Lord Paulet, 243. V. LordRokeby, 106, 243. r. Prince Edward of Saxe- Weimar, 106, 243. Day V. Brownrigg, 145, 287. Deani). Bennett, 111, 112. v. Peel, 214. . r. St. Paul Union Depot Co., 465. Dean of St. Asaph's Case, 129. Deane v. Clayton, 160. Deggj!. M. Rail. Co., 93. Denison v. Ralphson, 519. Denton v. G. N. Rail. Co., 273, 283, 486, 504. Derry v. Peek, 259, 260, 264, 269, 270,271, 273, 274, 282,505,574. De Wahl v. Braune, 49. Dewey v. White, 167. Dhurmchund v. Nabhaee Goobal- chund, 553. Dicker v. Popham, 374. Dickeson t). Watson, 130. Dickinson v. N. E. Rail. Co., 61. Dickon v. Clifton, 480. Dicks V. Brooks, 285. Dickson v. Dickson, 502. . V. Renter's Telegram Co., 503, 508. Ditcham v. Bond, 212. Dixon V. Bell, 128, 425, 427, 454, 455, 457, 458, 697. DobeU V. Stevens, 276. Dobree v. Napier, 191. Donald v. Suckling, 325, 580. Donovan v. Laing, 76. Doss V. Secretary of State in Coun- cil of India, 100. Doughty V. FirbaiLk, 524. Doulson V. Matthews, 190. Doyley v. Roberts, 228. Drake, Ex parte, 320. Dreyfus v. Peruvian Guano Co., 173, 380. Dublin, Sua., Rail. Co. v. Slattery, 406, 421. Du Boulay v. Du Boulay, 145. Duckworth v. Johnson, 63. Dunn V. Birmingham Canal Co., 447. ■ ■ V. Devon, &o. Newspaper Co., Add. Dunston v. Paterson, 108. Dyer v. Hargrave, 276. E. Eager v. Grimwood, 214. Ecclesiastical Commissioners r. Kino, 374. Eckert v. Long Island Rail. Co., 434. Edgington v. Eitzmaiurice, 260, 262, 269. Edwards v. L. & N. W. Rail. Co., 83. — V. M. Rail. Co., 289. Edwiok V. Hawkes, 343, 344. Elias V. Snowdeu Slate Quarries Co., 314. EUiott, Ex parte, 187. V. Hall, 464, 698. EUis V. G. W. Rail. Co., 406. INDEX OF CASES. XXXI Ellis v. Loftus Iron Co., 41, 449. ' !'. Sheffield Gas Consumers' Co., 69. Emblen t: Myers, 176, 602. Emmens r. Pottle, 231. England v. Cuwley, 320. Entic t: Carrington, 10, 101, 307. European and AustraHau Royal Mail Co. f. Royal Mail Steam Packet Co., 324. Evans r. bicknell, 278. r. Edmonds, 269. V. Walton, 213. Eyre, Ex parte, 87. E. Fairliurst v. Lirerpool Adelphi Loan Ass., 50, 51. Ealvey v. Stanford, 169. Farrant v. Barnes, 455, 597. Farwell v. Boston and Worcester Railroad Corporation, 71, 89, 91, 548. Fay c. Prentice, 364, 586. Feltham v. England, 92. Fenn i: Bittleston, 326, 329. Fenna v. Clare, Add. FergTisson v. Earl of Kinnoul, 541. Filbum V. Royal Aquarium Co., 451. Filer v. N. Y. Central R. R. Co., 434. FiUiter v. Phippard, 453. Fine Art Society v. Union Bank of London, 318. Finlayj). CMmey, 55, 513, 521. Firbank' s Executors v . Humpbrey s, 262. Firth V. Bowling Iron Co., 444. Fisher J). Jackson, 112. v. Keane, 111, 653. Fitz V. Hobson, 584. Fitzjohn v. Mackinder, 205, 289. Fivaz V. NichoUs, 165. Fleming v. DoUar, 240. r. Hislop, 367, 380. V. M. S. & L. Rail. Co., 484, 508, 622. Fletcher, Ex parte, 346. . V. Bealey, 382. V. Rylands, 438, 442, 447. V. Smith, 441. Flewster v. Royle, 206. Fogg V. Boston & Lowell Rail. Co., 54. Forsdike v. Stone, 176. Fonldes v. Willoughby, 310, 319. Foulger v. Newcomb, 228. Foulkes V. Met. D. Rail. Co., 464, 465, 487,490,491, 492, 493, 508, 697. Francis v. Cockrell, 460, 464, 600. Franconia, The, 62. Franklin v. S. E. RaU. Co., 63. Fray v. Blackburn, 105. Freke v. Calmady, 314. Fremantle v. L. & N. W. Rail. Co., 447, 597. Fritz V. Hobson, 363, 371, 380. Frogley v. Earl of Lovelace, 338. G. Gallagher v. Piper, 92. Gandy f. Jubber, 387, 589. Ganesh Singh v. Ram Raja, 548. Gardner v. Michigan Central R. R. , 402. Garland v. Carlisle, 348. Garnett v. Bradley, 171. Garret r. Taylor, 217. Gas Light & Coke Co. v. Vestry of St. Mary Abbott's, 120. Gaunt r. Fynney, 382. Gautret t'. Egerton, 471, 472. Gaylardj). Morris, 310. Geddis v. Proprietors of Bann Re- servoir, 116, 118. Gee V. Met. Rail. Co., 156, 431, 594. Gehanaji bin Kes Patil r. Ganpati bin Lakshuman, 584. George and Richard, The, 39, 61. 4'. Skivington, 458, 496. Gibbons v. Pepper, 133. Gibbs V. Guild, 195. r. G. W. RaU. Co., 524. Gibson v. Evans, 233. Girish Chunder Das v. Gillanders & Co., 545. GladweU v. Steggall, 479, 482. Glasier v. Rolls, 265. Glasspoole v. Young, 108, 348. Gledstane v. Hewitt, 518. Gloucester Grammar School Case, 137. Glover v. L. & S. W. Rail. Co., 35. Gofiv. G. N. Rail. Co., 82. GofSn V. Donnelly, 243. Goldsmid v. Tunbridge Wells Im- provement Commissioners, 382. Goodson V. Richardson, 368. Goodwin v. Cheveley, 350, 450. Gorham v. Gross, 442, 471. Gorris v. Scott, 24, 45, 182. Gosden v. Elphick, '.^06. Graham v. Peat, 330. Grainger v. Hill, 203. XXXll INDEX OF CASES, Grand Trunk Rail, of Canada v. Jennings, 64. Gray v. PuUen, 68. G. W. Rail. Co. of Canada v. Braid, 447, 696. Green ji. Greenbank, 483. Greene v. Cole, 312. Greenland v. Chaplin, 37. Greenslade ». Halliday, 379. Greenwood v. Hornsey, 374. Gregory v. Duke of Brunswick, 292, 297. V. Piper, 77, 547. GrifBn v. Coleman, 204, 205. Griffiths V. Dudley, 524. V. London & St. Katharine Docks Co., 93. Grinham v. WiUey, 206. Grinnell v. WeUs, 214, 215, 589. Guille ». Swan, 34. Gully V. Smith, 23. GwinneU v. Earner, 387. H. Hadleyi). Baxeudale, 27, 611, 512. Hailes v. Marks, 207. HaUord v. E. I. Rail. Co., 591. Hall V. Fearnley, 133. V. Hollander, 215. Halley, The, 76, 188, 189, 190. HalUday v. Holgate, 325. Halsey v. Brotherhood, 284, 285. Hambly v. Trott, 65, 66, 519, 520. Hamilton v. Pandorf, 446. Hammaok v. White, 25, 397, 398, 590, 591. Hammersmith Rail. Co. v. Brand, 117, 463. Hardman v. Booth, 509. Harman v. Johnson, 87. Harper v. Charlesworth, 330. ■ V. LufEkin, 213. Harris v. Brisco, 298. V. De Pinna, 372, 375. V. Mobbs, 37, 363. Harrison v. Bush, 248. ■ V. Duke of Rutland, 170, 308. V. Southwark & Vauxhall Water Co., 117, 365. Harrop v. Hirst, 336, 363, 365, 371, 586. Hart i>. Gumpach, 243. V. WaU, 233. Hartley v. Cummings, 212. V. Herring, 229. Harvey v. Brydges, 345. V. Dunlap, 127. V. Harvey, 348. Haskin v. Royster, 502. Hatohard v. Mege, 60. Hayoraft «). Creasy, 261. Hayes v. Michigan Central Rail- road Co., 38. Hayman r. Governors of Rugby School, 112. Hayn v. Culliford, 464, 465. Hayward v. Hayward, 250. Heald v. Carey, 321. Heaven v. Pender, 390, 391, 458, 463, 541. Hebditchi). Macllwaine, 232, 248, 253. Hedges v. Tagg, 214. Hedley v. Pinkney & Sons' S. S. Co., 92. Helsham v. Blackwood, 24 1 . Henderson v. Williams, Add. Hendriks v. Montagu, 288. Henwood v. Harrison, 236, 238. Hepburn)'. Lordan, 381. Hermann Loog v. Bean, 179. Heske v. Samuelson, 523. Hetherington v. N. E. Rail. Co., 63. Hewitt V. Isham, 340. Hill V. Bigge, 102. ■ V. New River Co., 37, 45, 544. Hillard v. Richardson, 73. Hinde v. Bandry, 571. Hiort V. Bott, 299, 316, 318, 320, 579. V. L. & N. W. Rail. Co., 320. Hogg V. Ward, 204. Hole w. Barlow, 369. Holford V. Bailey, 333, 336, 559. HolUns V. Fowler, 10, 299, 301, 318, 319, 321, 510, 581. Holmes v. Mather, 25, 122, 133, 152, 1,55, 443. V. N. E. Ran. Co., 462. V. Wilson, 346. Honywood v. Honywood, 315. Hope V. Evered, 206. Hopkins v. G. N. R. Co., 336. Home V. M. RaU. Co., 511, 512. Horsfall r. Thomas, 275. Hotohkys, Re, 314. Houldeni). Smith, 105. Houlds worth v. City of Glasgow Bank, 86, 282. HounseU v. Smyth, 472, 601. Howard v. Shepherd, 497. Howe V. Finch, 524. Huber v. Steiner, 191. Huckle V. Money, 175. Hughes V. Maofie, 425. V. Peroival, 471. INDEX OF CASES. XXXIU Humphries v. Cousins, 442. Hurdmau «•. N. E. Rail. Co., 140, iil. Hurst V. Taylor, 467. Hutcliins v. HutoMns, 294. Hyams v. Webster, 67. Hyde 1'. Graham, 338, 341. HydrauUo Eng-ineering Co. v MoHafBe, 512. Hyman i\ Nye, 466. I. Ibbotson V. Peat, 296. Illidge v. Goodwin, 544. Ilott V. Wilkes, 151. Inthbald v. Barrington, 370. Indermaur v. Dames, 460, 461, 462, 466, 598. luderwick t>. Snell, 111, 552. Tnnes v. Wylie, 199. Irwin V. Dearman, 215. Ivay V. Hedges, 473. J. Jackson v. Adanis, 225. Jacobs V. Seward, 327. James v. Campbell, 132. V. Jolly, 573. Jeffries V. G. W. Hail. Co., 330, 331. Jenner v. A'Beckett, 239. Jennings J). Rundall, 50, 483. Jenoure v. Delmege, 244, 253. Jina Ranchhod v. JohhS. 6hell4, 685. Job V. Potton, 314, 328. Joel ». Morison, 78. John V. Bacon, 460. Johnson v. Diprose, 305. V. Emerson, 290. D. Lancashire & Yorkshire Rail. Co., 326. V. Lindsay, 75, 93. V. Pie, 50, 53. V. Stear, 325. Johnstone v. Sutton, 109. Jones V. Bird, 396. V. Blocker, 502. V. Boyce, 432, 434. V. Chappell, 313, 363, 386. V. Corporation of Liverpool, 74. I'. Eestiniog Rail. Co., 453, 597. P. Jones V. Foley, 343. V. Gooday, 180. V. Hough, 321, 579. r. Jones, 376. V. Powell, 368. V. Starly, 502. Jordin v. Crump, 160. K. Kane v. N. Central RaU. Co., 435. Karim Buksh v. Budha, 585. K&,8hirim Krishna v. Bhadu Bkp&ji, 567. Kearney v. L. B. &S. C. Rail. Co., 469, 600. Keeble v. Hiokeringlll, 142, 218, 296, 297. Keen v. Henry, 76. V. MillwaU Dock Co., 526. Keighley v Bell, 109. Kelk V. Pearson, 373, 380. Kellard v. Rooke, 628. Kelly V. Sherlock, 170, 175, 238. ■ V. Tinling, 238. Kemp V. Neville, 105. Kenyon v. Hart, 308. Kettle r. Bromsall, 518. Kiddle v. Lovett, 525. Kimber v. Press Association, 250, 251. King V. London Improved Cab Co., 76. V. Pollock, 456. Kirkr. Gregory, 158, 299, 311. ■ V. Todd, 66. Kleinwortf. Comptoir d'Escompte, 318. L. Labouchere v. Whamcliffe, 111, 553. Lambert v. Bessey, 130. Lambton v. Mellish, 372. Lancashire Waggon Co. x>. Fitz- hugh, 321. Lane v. Capsey, 376. Lanfranchi v. Mackenzie, 373. Langridge v. Levy, 272, 458, 496, 577. Laughton v. Bishop of Sodor and Man, 247, 253. Lax V. Corporation of Darlington, 156, 433, 464, 465, 594. Lea V. Charrington, 206. Leame !.'. Bray, 131. XXXIV INDEX OF CASES. Le Mason v. Dixon, 621. Lee V. Riley, 41, 449, 544. Leeson v. General Medical Council, 110. Leggott V. G. N. Eail. Co., 60. Lehigh Zinc and Iron Co. v. Bam- ford, 266. Le Lievre v. Gould, 265, 270. Lenunon v. Webb, 310, 377, 685, Add. Lempriere ». Lange, 51. Lewis V. Levy, 250. Leymau v. Latimer, 226, 241. Liggius V. Inge, 340. Lightly V. Clouston, 489. Limpus V. London General Omni- bus Co., 84. Lingwood V. Stowmarket Co., 380. Lister v. Ferryman, 207, 208. Little V. Haokett, 74, 413, 420, 422. Lock V. Ashton, 207. L. & B. Rail. Co. «!.Trueman, 120, 121, 554, • London, Mayor of, v. Cox, 107. L. & N. W. RaQ. Co. v. Bradley, 118. Longmeid i>. Holliday, 458, 496. Lonsdale, Earl of, v. Nelson, 364, 377, 378, 586. Lord V. Price, 317. Losee V. Buchanan, 442, 454. V. Clute, 466. Lovell V. Howell. 90. Low V. Bouverie,' 265, 271, 273. Lowe v. Eox, 52. Lows;;. Telford, 343, 344. Lowther v. Earl of Radnor, 105. Luby ». Wodehouse. 102. Lumley u. Gye, 58,' 211, 212, 217, 218, 297, 497, 498, 499, 501, 502, 603, 578. Lyde v. Barnard, 279. Lyellj). GangaDai, 126, 556, 597. Lynch V. Knight, 223, 224, 500. ■ V. Nurdin, 40, 644. Lyon V. Eishmongers' Co., 363, 371, 584. M. Macdougall v. Knight, 250. Macfadzen v. OHvant, 211. Mackay v. Commercial Bank of New Brunswick, 86, 282. Maddison v. Alderson, 88. Madras Rail. Co. 'O. Zemindar of Carvatenagaram, 446, 595, 597. Malachy v. Soper, 284. Manchester Bonded ■Warehouse Co. V. Carr, 314. Mayor of, v. WiUiams, 63, 225. South Junction Rail. Co. V. FuUarton. 47. Manganj). Atterton, 427, 644. Manley v. Eield, 214. Manzoni v. Douglas, 398. Marsh ii. Billings, 286. V. Keating, 185, 187. Marshall v. York, Newcastle, & Berwick Rail. Co., 487, 492, 493. Marshalsea, The, 107. Martin v. G. I. P. R. Co., 492. V. Payne, 214. V. Price, 382. Marzetti v. WilUams, 484. Masper v. Brown, 202. Mauud V. Monmouthshire Canal Co., 53. May «. Burdett, 451. Mayor of Colchesterj). Brooke, 419. Manchester v. Williams, 53. M'Cully V. Clark, 402, 590. M'Kenzie v. McLeod, 648. M'Manus v. Crickett, 84. McGiffen v. Palmer's Shipbuilding Co., 523. McLaughlin v. Pryor, 74. McMahon v. Field, 512. McManus v. Cooke, 341. McPherson v. Daniels, 230, 235. Meade's and Belt's Case, 200. Mears v. Dole, 442. V. L. & S. W. Ran. Co., 317. Meghraj v. Zakir Hussain, 650. Mellor r. Spateman, 371. V. Watkins, 339. Membery v. G. W. R. Co., 152, 163. Mennie v. Blake, 312, 334. Merest ». Harvey, 175. Merivale v. Carson, 237, 239, 570. Merryweather v. Nixan, 183. Mersey Docks Trustees v. Gibbs, 54, 87, 116, 641. Metropolitan Association v. Fetch, 386. Metropolitan Asylum District v. HiU, 119, 120. Metropolitan Bank v. Pooley, 291, 298. Metrop. RaU. Co. v. Jackson, 41, 402, 403. V. Wright, 169. Meux V. Cobley, 313. Midland Ins. Co. v. Smith, 186. MUlen V. Fawdry, 450. INDEX OF CASES. XXXV Miller V. DaTid, 227. 1'. Dell, 194, 320. V. Hancock, 463. Mills, Case of, 137. V. Armstrong, 413, 422, 425, 435, 692, 593. V. Graham, 518. Millward ,■. M. Eail. Co., 524. MituheU i\ CrassweUer, 77, 79. V. Darley Main Colliery Co. , V. Eochester Eail. Co., 47, Add. MofEatt < . Bateman, 464, 474, 487, 601. Mogul Steamship Co. r. McGregor, Lo-w & Co., 138, 143, 179, 218, 291, 294, 296, 297. Montgomery ji. Thomp.son, 145. Moorcock, The, 464, 465. Moore v. Hall, 374. V. Metrop. Eail. Co., 82. V. Eawson, 372, 375. V. Eobinson, 304, Morgan v. Lond. Gen. Omnibus Co., 528. ■ (■. Vale of Neath EaU. Co., 91. Morris v. Piatt, 127. Moses r. Macferlan, 488. Mostyn «i. Fabrigas, 102. Mott V. Shoolbred, 386, 588. Mouse's Case, 157. M. Moxham, The, 188. Moyle v. Jenkins, 526. Muhammad Ismail Khan v. Mu- hammad Tahir, 567. Muhammad Tusuf v. P. & 0. Co., 549. Mullen r. St. John, 470. Mulligan v. Cole, 233. Mulliner c. Florence, 325. Mumford v. Oxford, 386. Munday r. Thames Ironworks Co., 526. Munster «;. Lamb, 242, 571. Murphy v. Deane, 399. Murray v. Currie, 73, 74. • V. Hall, 328. Musgrave v. Chung Teeong Toy, 102. N. Nash V. Lucas, 351. National Plate Glass Insurance Co. V. Prudential Assurance Co., 375. National Telephone Co. v. Baker, 442. Neate v. Denman, 110. Nelson V. Liverpool Brewery Co., 387, 589. Newcomb v. Boston Protective Department, 165. Newman v. Phillipsburg Horse Car Co., 427. N. 0. & N. E. E. E. Co. V. Jopes, 159. Newson v. Pender, 374. Newton v. Harland, 345. Nichols V. Marsland, 122, 445, 446, 595. NilmadhabMookerjeeti.Dookeeram Khottah, 667. Nitro-Glycerine Case, 125, 134, 443, 597. Norris i\ Bnkcr, 377. North Easter.i Eail. Co.D.Wanless, 402. Northampton's, Earl of. Case, 235. Netting HjU, The, 511. Nugent ('. Smith, 445, 485. Nuttall V. BraceweU, 342. Nyberg r. Handelaar, 329. 0. Oakey i'. Dalton, 60. Oliver V. Local Board of Horsham, 182. Ormerod v. Todmorden MiU Co., 342. Osbom r. GUlett, 57, 59, 211. Osborne v. Jackson, 524, 528. Oxley V. Watts, 355. Paley v. Gamett, 523. Palmer v. Thorpe, 226. V. Wick and Pulteneytown Steam Shipping Co., 183. Pappa V. Eose, 106. Parankusam Narasaya Pantula v. Stuart, 562. Pardo V. Bingham, 193. Parker v. First Avenue Hotel Co., 374. Parkes v. Prescott, 232. Parkins r. Scott, 223, 235. Parlement, Beige, The, 103. ParneU v. Walter, 254. Parry v. Smith, 456. Partridge v. General Council, &o., 110, 111. Parvals v. Mannar, 564. Pasley v. Freeman, 261, 278. f 2 XXX VI INDEX OF CASES. Patrick v. Coleriok, 347, 583. Paul V. Suramerhayes, 353. Pearce v. Lansdowue, 528. Pease v. G-loahec, 609. Peek V. Derry, 180, 264, 269. ■ V. Gurney, 66, 180, 260, 274, 676. Pendarves v. Monro, 375. Pendlebury v. Greenhalgh, 73. Pennington -u. Brinsop Hall Coal Co., 386. Penruddook's Case, 364, 379, 388, 686. Perry v. Eitzhowe, 376, 377. Perryman v. Lister, 208. Petrel, The, 89. PhUlips V. Barnet, 52. V. Eyre, 102, 188, 189, 190. ■ ■ V. Homfray, 66, 520. V. L. & S. W. Bail. Co., 169, 174. Piokard v. Smith, 460. Pickering v. James, 112. ■ ■ V. Rudd, 308. Piggott V. E. C. Bail. Co., 447. Piloher v. Bawlins, 301. Pilgrim v. Southampton, &c. Co., 358. Pinchon's Case, 59, 520. Pippin V. Sheppard, 479. Pittards;. Oliver, 251, 252. Pitumber Doss v. Dwarka, Pershad, 667. Playford ». U. K. Electric Tele- graph Co., 503. Plimmer v. Mayor of Wellington, 341. PolhiU V. Walter, 260, 272, 273, 574, 576. Ponnus^my Tevar v. Collector of Madura, 542. Pontifex v. Bignold, 172. i>. M. Rail. Co., 522. Pouting r. Noakes, 443. Potters;. Brown, 191. . i>. Eaulkner, 93, 128. Potts V. Smith, 373. Poultou V. L. & S. W. Rail. Co., 83. Pounder v. N. E. Rail. Co., 404. Powell V. Deveney, 40. V. Eall, 453. Powys V. Blagrave, 314. Pozzi V. Shipton, 482, 484. Praed 2). Graham, 254. Pralh&d M^harudra v. A. C. Watt, 550. Presland v. Bingham, 375. Pretty v. Biokraore, 387, 589. Priestley ;•. Fowler, 88. Proctor V. Webster, 248. Pulling V. G. E. Bail. Co., 60. Pullman ». Hill & Co., 231. Purcell V. Sowler, 235, 239, 570. Pursell p. Home, 197. Pym 41. G. N. Rail. Co., 63, 64. Q. Quarman v. Burnett, 74, 460. Quartz Hill, &c. Co. v. BeaU, 178, 179. V. Eyre, 290. R. Radley v. L. & N. W. Rail. Co., 413, 415, 420, 421. Raffey r. Henderson, 340. R. Ragunada Rau v. Nathamuni ThathamiyyangS-r, 651. Ra.i Chunder Roy )'. Shama Soon- dari Debi, 291, 578. Raj Koomar Singh v. Sahebzada Roy, 589. Rajmohun Bose v. E. I. Rail. Co., 119, 654. Ramsdenj). Dyson, 341. Randall v. Newson, 466. Rani Shamshoondri Deba v. Duhhu Muudul, 545. Rapier v. London Tramways Co., 119. Rashdallii. Eord, 263. RatclifEe v. Evans, 223, 229, 284, 286. Raymond r. Pitch, 513. Rayner «. Mitchell, 79. Rea r. Sheward, 360. Readu. Coker, 199. c. Edwards, 450. V. G. E. Rail. Co., 64. Readhead v. Midland Rail. Co., 466. Redgrave v. Hurd, 268, 577. Reeee v. Taylor, 201. Reed v. Nutt, 202. Reedie v. L. & N. W. R. Co., 73. Reese River Silver Mining Co. v. Smith, 269. R. V. Burdett, 567. — r. Commissioners of Sewers for Essex, 442, 445. — r. Coney, 147, 148. — r. Cotesworth, 197. — V. Duckworth, 198. — V. Jackson, 113. — v. James, 198. — V. Judge of City of London, Court, 526. — V. Latimer, 30, 132. INDEX OF CASES. XXXYll E. i. Lesley, 191. — V. Lewis, 147. — r. Orton, 149. — I'. Riley, 347. — V. St. aeorge, 198, 561. — i'. Sankara, 574. — V. Smith, 29. — V. Train, 360. — V. "Williani.s, 54. Reiuhardt v. Mentasti, 368, 369. Rex r. Pease, 117. Reynell r. Sprye, 268. Reynolds v. Edwards, 356. Rice ». Corlidge, 242. V. Manley, 285, 502. ('. Shute, 521. Rich V. Basterfield, 387, 388, 589. ■ V. PUkington, 521. Ricket r. Met. Rail. Co., 362, 363, 584. Riding?'. Smith, 223, 229. Rist i\ Eaux, 214. Robert Marys' Case, 211. Roberts r. Roberts, 224. • t. Rose, 379. V. Wyatt, 333. Robinson v. Cone, 427. • V. Ejlvert, 369. Robson r. N. E. Rail. Co., 156, 407, 433, 594. Rogers r. Lambert, 324. r. Rajendro Dutt, 141, 143, 556. V. Spence, 175, 331. Romney Marsh, BaUiffs of, ■». Trinity House, 39. Roope V. D'Avigdor, 186. Roscoe V. Boden, 349. Rose V. Miles, 362, 684. V. N. E. RaU. Co., 407, 433. Rosenberg v. Cook, 330. Rosewellj). Prior, 388, 589. Ross i\ Rugge-Price, 181. Rourke v. White Moss Colliery Co. , 75. Royal Aquarium Society f. Parkin- son, 243, 253. Rust V. Victoria G-raving Co., 173. Ryder v. Wombwell, 404. Ry lands v. Fletcher, 11, 1 132, 134, 152, 438, 441, 443, 444, 445, 447, 448. 454, 695. Dock 19, 442, 453, S. Sadler v. Henlock, 72. r. S. Stafiordshire Tram- ways Co., 454. St. Helen's Smelting Co. v. Tip- ping, 366, 367, 369, 383, 586, 687. St. Pancras, Vestry of, v. Batter- bury, 182. Salomons v Knight, 179, 255. Salviu V. North Brancepeth Coal Co., 366, 369, 385, 586. Sanders v. Stuart, 508. Saner v. Bilton, 314. Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga, 585. Saunders v. Holborn District Board of Works, Add. Savile or Savill v. Roberts, 291. Saxby V. Manchester and Sheffield Rail. Co., 3S8. Scott V. London Dock Co., 400, 410, 469, 591. *. Pape, 375. V. Seymour, 189. V. Shepherd, 30, 44, 131, 161, 544. p.Stansfield, 104, 105, 242, 550. Scott's Trustees v. Moss, 34. Seaman i/. Netherclift, 242, 571. Searles v. Scarlett, 250. Secretary < f State in Council of India v. Kamachee Boye Sahaba, 100. Selby r. Nettlefnld, 353. Semayne's Case, 348. Seroka v. Kattenburg, 52. Seshaiyangar v. R. Ragunatha B iw, 551. Seton r. Lafone, 33, 326. Seward v. The Vera Cruz, 62. Seymour v. Greenwood, 82, 84. Shaffers r. Gen. Steam Navigation Co., 528. Shama Churn Bose v. Bhola Nath Dutt, 545. Sharp V. Powell, 42, 44, 45, 46, 644. Shaw V. Port PhiHp Gold Mining Co., 85. Shelfer v. City of London Electric Lighting Co. , Add. Shepheard v. Whitaker, 229. Sheridan*. New Quay Co. ,324, 681. Sherrington's Case, 620. Shiells V. Blackburne, 391, 479. Shipley!). Eifty Associates, 442. Shotts Iron Co. v. Inglis, 369. Simkin v.Jj.&N.W. Rail.Co., 47. Simpsi n v. Savage, 3K6. Siner v. N. E. Rail. Co., 407. Singer Manufacturing Co. v. Loog, 287. V. Wilson, 288. XXXYIU INDEX OF CASES. Singleton v. E. C. RaU. Co., 427. Six Carpenters' Case, The, 354, 355. Skeltons). L. & N. W. EaU. Co., 410. Skinner v. L. B. & S. C. Rail. Co., 400. & Co. ». Shew & Co., 284. Skipp V. E. C. RaU. Co., 93. Slade's Case, 479. Slatter's Case, 406. Slattery'a Case, 430. Slim V. Croucher, 180, 271. Smart v. Jones, 341. Smith V. Baker, 134, 153, 154, 155, 156, 467, 524, 525. V. Boston Gas Co., 456. V. Brown, 61. ». Chadwick, 260, 269, 274, 277, 278. r. Cook, 449. V. Earl Brownlow, 376. r. Green, 32, 512. V. L. & S. ^Y. Rail. Co., 392, 407, 417, 591. V. Loudon and St Katharine Docks Co., 463, 600. V. Milles, 306. V. Sydney, 206. Sneesby v. L. & T. Rail. Co., 32. Snnwden v. Baynes, 524. Soltau 'P. Be Held, 370, 586. Somerville v. Hawkins, 247, 573. Southcote V. Stanley, 473, 600. South Hetton Coal Co. v. N. E. News Association, 229. Speight V. Oliviera, 213, 215. SpUl V. Maule, 247, 253. Staight «. Barn, 375. Stanley v. Powell, 134, 443. Stanton v. Scrutton, 523. Steele r. Brannan, 251. Stephens v. Elwall, 318, 323. . V. Myers, 198. Stetson V. Faxon, 362, 584. Stevens v. Jeacocke, 182. . V. Sampson, 237, 251, 571. Stevenson ». Watson, 106. Steward v. Young, 286. Stewart v. Wyoming Ranche Co., 263. Stikeman ». Dawson, 50. Stone V. Denny, 265. . V. Hyde, 527, 528. Storey ». Ashton, 79, 547. Street v. Union Bank, 145. Sturges n. Bridgmau, 366, 368,587. Sullivan v. Spencer, 102. . V. Waters, 460, 472. Sutton J). Town of Wauwatoaa, 164. Swann v. Phillips, 279. Sweeny v. Old Colony and New- port R. R. Co., 468. Swift V. Jewsbury, 279. Swinfen v. Bacon, 356. Swire v. Francis, 86, 282. T. Tandy v. Westmoreland, 102. Tapling v. Jones, 374, 375. Tariui Charan Bose p. Debnrayan Mistri, 581. Tarleton v. MoGawley, 218, 296. Tarry v. Ashton, 470, 600. Tasmania, The, 430. Tattan v. G. W. Rail. Co., 482. Taylor r. Ashton, 264, 269. V. Greenhalgh, 73. ■ V. M. S. & L. R. Co., 484, 487, 491, 495. V. Newman, 160. Teape v. Swan, 450. Temperton v. Russell, 295, 500. Terry v. Hutchinson, 214, 215. Tharsis Sulphur Co. v. Loftus, 106. Thomas v. Quartermaine, 93, 152, 153, 155, 466, 523, 525. V. SorreU, 337. V. WUliams, 178. r. Winchester, 456, 457, 458, 459, 496, 598. Thompson v. Mayor of Brighton, 182. V. Gibson, 387. V. Ross, 214. Thorley's Cattle Food Co. v. Maa- sam, 178, 285. Thorogood v. Bryan, 422, 423. Thorpe v. Brumfitt, 372. Thrussell v. Handyside, 153, 156. Tillett V. Ward, 450, 545. Timothy v. Simpson, 205. Tipping V. St. Helen's Smelting Co., 367. Tod-Heatly v. Benham, 366. Todd V. FHght, 387, 589. ToUit V. Sherstone, 497. Tompson v. Dashwood, 232. Tozer v. Child, 112, 298, 578. Traill v. Baring, 268. Tuberville v. Savage, 199. f. Stampe, 72,452,597. Tucker v. Linger, 316. Tufi V. Warman, 414, 418, 429, 592. TuUidge v. Wade, 175, 212. Tunney v. M. Rail. Co., 90, 648, INDEX OF CASES. XXXIX Turner i\ Ringwood High-way Board, 361, 365. ■ ■ v. S. P. & D. Rail. Co., 548. ' Twomley v. Central Park R. R. Co., 434. Twycross i\ Grant, 57, 60. Tyrringham's Case, 350. U. Udell V. Atherton, 259. Underwood v. Hewsou, 131. Union S. S. Co. c. Claridge, 75. Usill V. Hales, 250. VaJlance r. Falle, 182. Vandenburgh v. Truax, 33, .')44. Vaspor V. Edwards, 350, 356. Vaughan v. Meulove, 394, 453. r. Taff Vale Rail. Co., 117, 447, 597. Vernon v. Keys, 262. Vicars v. Wilcocks, 45, 222, 223, 500. Victorian Ry. Commissioners v. Conltas, 46. Vin&yab Disikar v. Bk'i Itoha, 551. Viranna v. Nag&yyah, 545. Vithoba Malhari v. Corfield, 550. W. Waite V. N. E. Rail. Co., 425, 593 Wakeiin v. L. & S. W. Rail. Co., 397, 398, 405, 420, 590. Wakeman r. Robinson, 133. Walker v. Brewster, 370. ». Cronin, 502. V. Needham, 518. Wallis V. Harrison, 337. Walsh V. Whiteley, 155. Walter v. Selfe, 366, 586. Wands-worth Board of Works v. United Telephone Co., 308. WanlesB v. N. E. Rail. Co., 402, 405, 430, 591, 694. Ward V. Hobbs, 24. ■ V. Lloyd, 187. Warlow V. Harrison, 267. Warner v. Riddiford, 203. Washington Ry. Co. i/. McDade, 435. Wason V. Walter, 237, 249, 571. Watkm V. Hall, 235, 569. Weare, Re, 228. Weaver V. Ward, 130, 131. Webb V. Beavan, 225. V. Bird, 372. Weblia v. Ballard, 523, 525. Weems v. Mathieson, 93. Weil- V. Bell, 259. Weldon v. Be Bathe, 52. V. Neal, 195. V. Winslo-w, 5 1 . Welfare v. L. & B. Rail. Co., 471. WeUoek v. Constantine, 186. WeUsf. Abrahams, 186, 187. Wenman v. Ash, 232. Wennhak v. Morgan, 176, 232. West V. Nibbs, 349, 355. r. SmaUwood, 206. Western Bank of Scotland v, Addie, 204, 282. West London Commercial Bank v. Kitsou, 262. Whalley v. L. & Y. RaU. Co., 162. Whatman v. Pearson, 78, 547. Wheeler v. Mason Manxifaoturing Co., 96. White V. France, 462. V. Jameson, 387, 589. V. Lang, 164. v. Spettigue, 185. Whitham v. Kershaw, 173, 176, 180, 602. Whittaker, Ex parte, 261. Wicks V. Fentham, 288. Wiggett V. Fox, 93. Wigsell V. School for Indigent Blind, 180. Wilbraham v. Snow, 316. Wild V. Waygood, 74, 524. Wilkes v. Hungerford Market Co. , 362, 584. Wilkins r. Day, 363. Wilkinson r. Haygarth 328. Willetts V. Watt, 623. Williams i'. East India Co., 597. V. G. W. Rail. Co., 38, 402. V. Jones, 80. V. Smith, 260. Williamson v. Allison, 261, 267, 480. V. Freer, 230, 252, 574. Willis V. Maclachlan, 106. Wilson V. Barber, 333. V. McLaughlin, 319. V. Merry, 89, 92. V. Newberry, 444, 446. V. Tumman, 69. V. Waddell, 442. Winsmore v. Greenbank, 212. Winter v. Brockwell, 34 0. Winterbottom v. Derby, 362, 585. V.Wright, 466, 496, 496. xl INDEX OF CASES. Wood V. Durham, 254. V. Leadbitter, 338, 339, 340, 341. V. Waud, 367, 588. V. Woad, 112. Woodhouse v. "Walker, 60, 312. Woodley j>. Metr. Dist. Rail. Co., 152. Woodward ». Walton, 212. Worths;. Grilling, 451. Wren v. Weild, 285. Wright ■». Leonard, 53. V. Pearson, 451. ». Eamscot, 310. Y. Tarborough v. Bank of England, 53. Tarmouthj). France, 152, 153, 467, 523, 525, 528. Yates V. Jack, 373. Ass. Edw. Hen. III. IV. YEAR BOOKS CITED. PAOB pi. 48 349 100, — 67 53 102, — 76 217 134, — 11 200 20, — 8 332 18, — 6 452, 482 1-2, — 2 216 47, — 21 136, 137, 555 75, — 16 364 19 Hen. VI. 33, — 68 450 45, — 94 210, 332 66, — 10 56 21 26, — 9 217' 22 14, — 23 137 31 216 325 217 33 27, — 12 355 36 205— 8 200 37 37, — 26 352 39 7, — 12 339 6 Edw. IV. 7, — 18 130 • 8, 352 8 23, — 41 167 35, — 10 347,352 13, — 9 334 7, — 13 217 1 32 3,-2 200 11, — 10 450 765,— 9 353 22, — 3 323 7, — 4 217 10, — 18 378 2, — 7 334 27, — 5 130,167,352 28, 129,157 39, — 50 159 855, 352 865,— 19 352 39, — 49 334, 363 2, 167 27, — 10 361,363,684 22 27 48 2 11 9 12 14 17 17 20 21 7 9 15 16 21 27 12 Hen. VIII. 27 Hen. VII. THE LAW OF TORTS. Book I.- GENERAL PART, CHAPTER I. THE NATURE OF TOET IN GENERAL. Our first difficulty in dealing with the law of torts is to What is a fix the contents and boundaries of the subject. If we are asked, What are torts ? nothing seems easier than to answer by giving examples. Assault, libel, and deceit are torts. Trespass to land and wrongful dealing with goods by trespass, " conversion," or otherwise are torts. The creation of a nuisance to the special prejudice of any person is a tort. Causing harm by negligence is a tort. So is, in certain cases, the mere failure to prevent acci- dental harm arising from a state of things which one has brought about for one's own purposes. Default or mis- carriage in certain occupations of a public nature is like- wise a tort, although the same facts may constitute a breach of contract, and may, at the option of the aggrieved party, be treated as such. But we shall have no such easy task if we are required to answer the question. What is a tort ? — in other words, what principle or element is common to all the classes of cases we have enumerated, or might enumerate, and also distinguishes them as a whole from other classes of facts giving rise to legal duties and p. B •* THE NATURE OF TORT IN GENERAL. liabilities? It is far from a simple matter to define a contract. But we have this much to start from, that there are two parties, of whom one agrees to terms offered by the other. There are variant and abnormal forms -to be dealt with, but this is the normal one. In the law of torts we have no such starting-point, nothing (as it appears at first sight) but a heap of miscellaneous instances. The word itself will plainly not help us. Tort is nothing but the French equivalent of our English word wrong, and was freely used by Spenser as a poetical synonym for it. In common speech everything is a wrong, or wrongful, which is thought to do violence to any right. Manslaying, false witness, breach of covenant, are wrongs in this sense. But thus we should include all breaches of all duties, and therefore should not even be on the road to any distinction that could serve as the base of a legal classification. History In the history of our law, and in its existing authorities, of Englisli ■^s ™Eiy find some little help, but, considering the magni- classifica- ^^^jg q£ j.]^g subject, singularly little. The ancient common law knew nothing of large classifications. There were forms of action with their appropriate writs and process, and authorities and traditions whence it was known, or in theory was capable of being known, whether any given set of facts would fit into any and which of these forms. No doubt the forms of action fell, in a manner, into natural classes or groups. But no attempt was made to discover or apply any general principle of arrangement. In modern times, that is to say, since the Restoration, we find a certain rough classification tending to prevail (a). It is assumed, rather than distinctly asserted or established, that actions maintainable in a court of common law must be either actions of contract or actions of tort. This divi- sion is exclusive of the real actions for the recovery of (a) Appendix A. LIMITS OF TEEMINOLOGY. land, already becoming obsolete in the seventeenth century, and finally abolished by the Common Law Procedure Act, ■with which we need not concern ourselves : in the old technical terms, it is, or was, a division of personal actions only. Thus torts are distinguished from one important class of causes of action. Upon the other hand, they are distinguished in the modern law from criininal offences. In the medieval period the procedure whereby redress was obtained for many of the injuries now classified as torts bore plain traces of a crimuial or quasi-criminal character, the defendant agaiast whom judgment passed being liable not only to compensate the plaiatiff, but to pay a fine to the king. Public and private law were, in truth, but imperfectly distinguished. In the modern law, however, it is settled that a tort, as such, is not a criminal offence. There are various acts which may give rise both to a civil action of tort and to a criminal prosecution, or to the one or the other, at the injured party's option ; but the civil suit and the criminal prosecution belong to different jurisdictions, and are guided by different rules of pro- cedure. Torts belong to the subject-matter of Common Pleas as distinguished from Pleas of the Crown. Again, the term and its usage are derived wholly from the Superior Courts of 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 vsrong, adultery is a wrong, refusal to pay just compensation for saving a vessel in distress is a 1(2 * THE NATURE OF TORT IN GENERAL. wrong. An order may be made compelling restitution from the defaulting trustee; a decree of judicial sepa- ration may be pronounced against the unfaithful wife or husband ; and payment of reasonable salvage may be enforced against the ship-owner. But that which is remedied in each case is not a tort. The administration of trusts belongs to the law formerly peculiar to the Chan- cellor's Court ; the settlement of matrimonial causes be- tween husband and wife to the law formerly peculiar to the King's Ecclesiastical Courts; and the adjustment of salvage claims to the law formerly peculiar to the Admi- ral's Court. These things being unknown to the old com- mon law, there can be no question of tort in the technical sense. Exclusive Taking into account the fact that in this country the "tort." separation of courts and of forms of action has disap- peared, though marks of the separate origin and history of every branch of jurisdiction remain, we may now say this much. (A tort is an act or omission giving rise, in virtue of the common law jurisdiction of the Court, to a civil remedy which is not an action of contract. ) To that extent we know what a tort is not. We are secured against a certain number of obvious errors. We shall not imagine (for example) that the Married Women's Property Act of 1882, by providing that husbands and wives can- not sue one another for a tort, has thrown doubt on the possibility of a judicial separation. But whether any definition can be given of a tort beyond the restrictive and negative one that it is a cause of action (that is, of a " personal " action as above noted) which can be sued on in a court of common law without alleging a real or sup- posed contract, and what, if any, are the common positive characters of the causes of action that can be so sued HISTORICAL DISTINCTIONS. 5) upon : — these are matters on wMcli our books, ransack them as we will, refuse to utter any certain sound what- ever. If the collection of rules which we call the law of torts is founded on any general principles of duty and liability, those principles have nowhere been stated with authority. And, what is yet more remarkable, the want of authoritative principles appears to have been felt as a want by hardly anyone (J). "We have no right, perhaps, to assume that by fair Are any means we shall discover any general principles at all. prSSples The history of English usage holds out, in itself, no great abie"?^"^' encouragement. In the earlier period we find a current distinction between wrongs accompanied with violence and wrongs which are not violent ; a distinction important for a state of society where open violence is common, but of Httle use for the arrangement of modern law, though it is still prominent in Blackstone's exposition (c). Later we find a more consciously and carefully made distinction between contracts and causes of action which are not con- tracts. This is very significant in so far as it marks the ever gaining importance of contract in men's affairs. That which is of contract has come to fill so vast a bulk in the whole frame of modem law that it may, with a fair appearance of equality, be set over against everything which is independent of contract. But this unanalysed remainder is no more accounted for by the dichotomy of the Common Law Procedure Act than it was before. It may have elements of coherence within itself, or it may not. If it has, the law of torts is a body of law capable of being expressed in a systematic form and under appro- (b) The first, or almost tlie first, See the chapter on LiabiKty in his ■writer who has clearly called at- " Elements of Law." tention to it is Sir William Markby. (c) Comm. iii. 118. o THE NATURE OF TORT IN GENERAL. priate general principles, whetKer any particular attempt so to express it be successful or not. If not, then there is no such thing as the law of torts in the sense in which there is a law of contracts, or of real property, or of trusts, and when we make use of the name we mean nothing but a collection of miscellaneous topics which, through his- torical accidents, have never been brought into any real classification. The The only way to satisfy ourselves on this matter is to torts in examine what are the leading heads of the English law of lav^ ^^ torts as commonly received. If these point to any sort of common principle, and seem to furnish acceptable lines of construction, we may proceed in the directions indicated ; well knowing, indeed, that excrescences, defects, and ano- malies will occur, but having some guide for our judgment of what is normal and what is exceptional. Now the civil wrongs for which remedies are provided by the common law of England, or by statutes creating new rights of action under the same jurisdiction, are capable of a three- fold division according to their scope and effects. There are wrongs affecting a man in the safety and freedom of his own person, in honour and 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 " afQioted or distressed in mind, body, or estate." There are other wrongs which affect specific pro- perty, or specific rights in the nature of property : property, again, being taken in so large a sense as to cover possessory rights of every kind. There are yet others which may affect, as the case happens, person or property, either or both. We may exhibit this division by arranging the CLASSIFICATION OF TOETS. 7 familiar and typical species of torts in groups, omitting for the present such as are ohscure or of little practical moment. G-ROiip A. Personal Wrongs. Personal ■wrongs. 1. Wrongs afEecting safety and freedom of the person : Assault, battery, false imprisonment. 2. Wrongs affecting personal relations in the family : Seduction, enticing away of servants. 3. Wrongs affecting reputation : Slander and lihel. 4. Wrongs affecting estate generally : Deceit, slander of title. Malicious prosecution, conspiracy. G-Roup B. Wrongs to Property. Wrongs to property. 1. Trespass : (a) to land. (b) to goods. Conversion and unnamed wrongs ejusdem generis. Disturbance of easements, &c. 2. Interference with rights analogous to property, such as private franchises, patents, copyrights. GrROUP 0. Wrongs to Person, Estate, and Property generally. Wrongs affecting 1. Nuisance. person and property. 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 THE NATURE OP TORT IN GENERAL, results, as will he seen hereafter, partly from ancient rules of the common law of which the origin is still doubtful, partly from the modern development of the law of negligence. All the acts and omissions here specified are undoubtedly torts, or wrongs in the technical sense of English law. They are the subject of legal redress, and under our old judicial system the primary means of redress would be an action brought in a common law Court, and governed by the rules of common law pleading (d). "We put aside for the moment the various grounds of justification or excuse which may be present, and if present must be allowed for. It will be seen by the student of Roman law that our list includes approximately the same matters (e) as in the Roman system are dealt with (though much less fully than in our own) under the title of obligations ex delicto and quasi ex delicto. To pursue the comparison at this stage, however, would only be to add the difficulties of the Roman classification, which are considerable, to those already on our hands. Character The groups above shown have been formed simply with fulacta, reference to the effects of the wrongful act or omission, tife s^eral -^^^ ^^^^ appear, on further examination, to have certain classes. distinctive characters with reference to the nature of the wrongs. ^°t ^^ omission itself. In Group A., generally speaking. (d) In some cases the really ef- fectual remedies were admmiatered by the Court of Chancery, but only as auxiliary to the legal right, which it was often necessary to establish in an action at law before the Court of Chancery would inter- fere. (e) Trespass to land may or may not be an exception, according to the view we take of the nature of the liabilities enforced by the pos- sessory remedies of the Roman law. Some modem authorities, though not most, regard these as ex delicto. MORAL ELEMENTS. » the -wrong Is wilful or wanton. Either the act is intended to do harm, or, being an act evidently likely to cause harm, it is done with 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 v(3pis. 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 by righteous men in all ages. If anyone desires to be satisfied of this, he may open Homer or the Psalter at random. What is more, we have here to do with acts of the sort that are next door to crimes. Many of them, in fact, are criminal offences as well as civil wrongs. It is a common border land of criminal and civil, public and private law. In Group B. this element is at first sight absent, or at Wrongs any rate iadifferent. "Whatever may or might be the case rently un- in other legal systems, the intention to violate another's connected rights, or even the knowledge that one is violating them, Wame. is not in English law necessary to constitute the wrong of trespass as regards either land or goods, or of conversion as ■regards goods. On the contrary, an action of trespass — or of ejectment, which is a special form of trespass — has for centuries been a common and convenient method of trying an honestly disputed claim of right. Again, it matters not whether actual harm is done. " By the laws of England, every invasion of private property, be it ever so minute, is a trespass. 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 declara- tion in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the 10 THE NATURE OF TORT IN GENERAL. soil" (/). Nor is this all; for dealing with another man's goods without lawful authority, but under the honest and even reasonable belief that the dealing is lawful, may be an actionable wrong notwithstanding the innocence of the mistake {g). Still less will good intentions afford an ex- cuse. I find a watch lying in the road ; intending to do the owner a good turn, I take it to a watchmaker, who to the best of my knowledge is competent, and leave it with him to be cleaned. The task is beyond him, or an incompetent hand is employed on it, and the watch is spoilt in the attempt to restore it. Without question the owner may hold me liable. In one word, the duty which the law of England enforces is an absolute duty not to meddle with- out lawful authority with land or goods that belong to others. And the same principle applies to rights which, though not exactly property, are analogous to it. There are exceptions, but the burden of proof Kes 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 my neighbour's in every case. Reserving the explanation of this to be attempted afterwards, we pass on. Wrongs of In Group 0. the acts or omissions complained of have a dence'and kind of intermediate character. They axe 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 own purposes done acts, or brought about a state of things, or brought other people into a situation, or taken on himself the conduct of an operation, which a prudent man in his place would know to be (/) Per Cur. Entick t. Carring- [g] See Eollins v. Fowler, L. B. ton, 19 St. Tr. 1066. 7 H. L. 757, 44 L. J. Q. B. 169. omission. MORAL ELEMENTS. 11 attended -witli certain risks. A man who fails to take order, in things within his control, against risk to others which he actually foresees, or which a man of common sense and competence would in his place foresee, will scarcely be held blameless by the moral judgment of his fellows. Legal liability for negligence and similar wrongs corresponds approximately to the moral censure on this kind of default. The commission of something in itself forbidden by the law, or the omission of a positive and specific legal duty, though without any intention to cause harm, can be and is, at best, not more favourably con- sidered than imprudence if harm happens to come of it ; and here too morality will not dissent. In some condi- tions, indeed, and for special reasons which must be con- sidered later, the legal duty goes beyond the moral one. There are cases of this class in which liability cannot be avoided, even by proof that the utmost diligence in the way of precaution has in fact been used, and yet the party liable has done nothing which the law condemns (/*). Except in these cases, the liability springs from some shortcoming in the care and caution to which, taking human affairs according to the common knowledge and experience of mankind, we deem ourselves entitled at the hands of our fellow-men. There is a point, though not an easily defined one, where such shortcoming gives rise even to erimiaal liability, as in the case of manslaughter by negli- gence. We have, then, three main divisions of the law of torts. Relation In one of them, which may be said to have a quasi- of torts to (A) How far such a doctrine can has been explicitly affirmed by the be theoretically or historically jus- House of Lords : Eylands v. Flet- tified is not an open question for cher (1868), L. R. 3 H. L. 330, 37 English courts of justice, for it L. J. Ex. 161. 12 THE NATURE OF TORT IN GENERAL. the semi- criminal character, there is a very strong ethical element. precept In another no such element is apparent. In the third such non laedere. ^^ element is present, though less manifestly so. Can we find any category of human duties that will approxi- mately cover them all, and bring them into relation with any single principle? Let us turn to one of the best- known sentences in the introductory chapter of the Insti- tutes, copied from a lost work of Ulpian. " luris praecepta sunt haec : honeste vivere, alteram non laedere, suum culque tribuere." Honeste vivere is a vague phrase enough ; it may mean refraining from criminal offences, or possibly general good behaviour in social and family relations. Smim cuique tribuere seems to fit pretty well with the law of property and contract. And what of alterum non laedere ? " Thou shalt do no hurt to thy neighbour." Our law of torts, with all its irregularities, has for its main purpose nothing else than the development of this precept («). This exhibits it, no doubt, as the technical working out of a moral idea by positive law, rather than the systematic application of any distinctly legal con- ception. But all positive law must pre-suppose a moral standard, and at times more or less openly refer to it ; and the more so in proportion as it has or approaches to having a penal character. Historical The real difficulty of ascribing any rational unity to our onaw of law- of torts is made by the wide extent of the liabilities a^d^cou- mentioned under Group B., and their want of intelligible version. relation to any moral conception. A right of property is interfered with " at the peril of (i) Compare the statement of of Ely, -who was a learned civilian : "duty towards my neighbour," in "To hurt nobody by word nor the Church Catechism, probably deed: To be true and just in all from the hand of Q-oodrich, Bishop my dealing . . . ." FORMS OF ACTION. 13 the person interfering with it, and whether his interference be for his own use or that of anybody else " (Ic). And whether the interference be wilful, or reckless, or innocent but imprudent, or innocent without imprudence, the legal consequences and the form of the remedy are for English justice the same. The truth is that we have here one of the historical Early- anomalies that abound in English law. Formerly we of forms of had a clear distinction in the forms of procedure (the ^^^°^- only evidence we have for much of the older theory of the law) between the simple assertion or vindication of title and claims for redress against specific injuries. Of course the same facts would often, at the choice of the party wronged, afford ground for one or the other kind of claim, and the choice would be made for reasons of practical con- venience, apart from any scientific or moral ideas. But the distinction was in itself none the less marked. For Writs of assertion of title to land there was the writ of right ; and ^jta of the writ of debt, with its somewhat later variety, the writ ti'^sp^^s : ' •' ' restitution of detinue, asserted a plaintiff's title to money or goods in or punish- a closely corresponding form (l). Injuries to person or property, on the other hand, were matter for the writ of trespass and certain other analogous writs, and (from the 13th century onwards) the later and more compre- (A) Lord O'Hagan, L. E.. 7 H. salutem : Praecipe N. quod iuste L. at p. 799. et sine dilatione reddat E. centum {l) The writ of right (G-lanvill, marcas quas ei debet, ut dicit, et Bk. i. 0. 6) runs thus : " Hex vice- undo queritur quod ipse ei iniuste comiti salutem : Praecipe A. quod deforceat. Et nisi fecerit, sum- sine dilatione reddat B.unamhidam mono eum," &o. The writs of terrae in villa ilia, unde idem B. covenant and account, which were queritur quod praedictus A. ei de- developed later, also contain the foroeat : et nisi fecerit, summone characteristic words iuste et sine earn," &c. The writ of debt (Bk. dilatione. X. c. 2) thus: "Rex vioeoomiti 14 THE NATURE OF TORT IN GENERAL. hensive writ of trespass on the ease {m). In the former kind of process, restitution is the object sought; in the latter, some redress or compensation which, there is great reason to believe, was originally understood to be a sub- stitute for private vengeance (w). Now the writs of resti- tution, as we may collectively call them, were associated with many cumbrous and archaic points of procedure, exposing a plaintifE to incalculable and irrational risk ; while the operation of the writs of penal redress was by comparison simple and expeditious. Thus the interest of suitors led to a steady encroachment of the writ of tres- pass and its kind upon the writ of right and its kind. Not only was the writ of right first thrust into the back- ground by the various writs of assize — forms of possessory real action which are a sort of link between the writ of right and the writ of trespass — and then superseded by the action of ejectment, in form a pure action of trespass ; but in like manner the action of detinue was largely sup- planted by trover, and debt by assumpsit, both of these new-fashioned remedies being varieties of action on the case (o) . In this way the distinction between proceedings taken on a disputed claim of right, and those taken for (i«) Blackstone, iii. 122 ; P. N. 217—219. B. 92. The mark of this class of («) Not retaliation. Early Ger- actions is the conclusion of the manic law shows no trace of retalia- writ contra pacem. Writs of assize, tion in the strict sense. A passage including the assize of nuisance, in the introduction to Alfred's laws, did not so conclude, but show copied from the Book of Exodus, analogies of form to the writ of is no real exception, trespass in other respects. Actions (o) For the advantages of suing on the case might be founded on in ease over the older forma of other writs besides that of trespass, actions, see Blackstone, iii. 153, e.g., deceit, which contributed lf>5. The reason given at p. 152 largely to the formation of the for the wager of law (as to which, action of assumpsit. The writ of see Co. Litt. 295 a) being allowed trespass itself is by no means one in debt and detinue is some one's of the most ancient : see E. W. idle guess, due to mere ignorance Maitland in Harv. Law Rev. iii. of the earlier history. ANOMALIES OF TRESPASS. 15 tlie redress of injuries where the right was assumed not to be in dispute, became quite obliterated. The forms of action were the sole embodiment of such legal theory as existed ; and therefore, as the distinction of remedies was lost, the distinction between the rights which they pro- tected was lost also. By a series of shifts and devices introduced into legal practice for the ease of litigants a great bulk of what really belonged to the law of property was transferred, in forensic usage and thence in the tra- ditional habit of mind of English lawyers, to the law of torts. In a rude state of society the desire of vengeance is measured by the harm actually suffered and not by any consideration of the actor's intention; hence the archaic law of injuries is a law of absolute liability for the direct consequences of a man's acts, tempered only by partial exceptions in the hardest cases. These archaic ideas of absolute liability made it easy to use the- law of wrongful injuries for trying what were really questions of absolute right ; and that practice again tended to the preservation of these same archaic ideas in other departments of the law. It wiU be observed that in our early forms of action contract, as such, has no place at all {p) ; an additional proof of the relatively modern character both of the importance of contract in practical life, and of the growth of the corresponding general notion. We are now independent of forms of action. Trespass Ratiou- and trover have become historical landmarks, and the X^lio-^ of question whether detinue is, or was, an action founded i*^^ °* ^ _ / trespass. on contract or on tort (if the foregoing statement of the history be correct, it was reaUy neither) survives only to {p) Except wtat may be implied tte original parties to the con- from the technioal rule that the tract: P. N. B. 119; Blaokstone, word debet -was proper only ia an iii. 166. aotion for a suia of money between 16 THE NATURE OF TOET IN GENERAL. raise difficulties in applying certain provisions of the County Courts Act as to the scale of costs in the Superior Courts {q). It would seem, therefore, that a rational exposition of the law of torts is free to get rid of the extraneous matter brought in, as we have shown, by the practical exigency of conditions that no longer exist. At the same time a certain amount of excuse may be made on rational grounds for the place and function of the law of trespass to property in the English system. It appears morally unreasonable, at first sight, to require a man at his peril to know what land and goods are his neighbour's. But it is not so evidently unreasonable to expect him to know what is his own, which is only the statement of the same rule from the other side. A man can but seldom go by pure unwitting misadventure beyond the limits of his own dominion. Either he knows he is not within his legal right, or he takes no heed, or he knows there is a doubt as to his right, but, for causes deemed by him sufficient, he is content to abide (or perhaps intends to provoke) a legal contest by which the doubt may be resolved. In none of these cases can he complain with moral justice of being held to answer for his act. If not wilfully or wantonly injurious, it is done with some want of due circumspection, or else it involves the conscious acceptance of a risk. A form of procedure which attempted to distinguish between these possible cases in detail would for practical purposes hardly be tolerable. Exceptional cases do occur, and may be of real hardship. One can only say that they are thought too exceptional to count in determining the general rule of law. From this point of view we can accept, though we may not actively approve, the inclusion of the morally innocent with the morally guilty trespasses in legal classification. (?) Bri/ani v. Serkrt (1878), 3 0. P. Div. 389, 47 L. J. C. P. 670. DOLUS AND CULPA. 17 "We may now turn with profit to the comparison of the Analogy Eoman system with our own. There we find strongly Roman ob- marked the distinction between restitution and penalty, ^/^X^o. which was apparent in our old forms of action, but became obsolete in the manner above shown. Mr. Moyle (r) thus describes the specific character of obligations ex delicto. " Such wrongs as the withholding of possession by a defendant who hona fide believes in his own title are not delicts, at any rate in the specific sense in which the term is used in the Institutes ; they give rise, it is true, to a right of action, but a right of action is a difierent 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 obhgations which arise from them are independent, and do not merely modify obligations already subsisting ; they always involve dolus or culpa ; and the remedies by which they are redressed are penal." The Latin dolus, as a technical term, is not properly Dolus and rendered by " fraud " in English ; its meaning is much wider, and answers to what we generally signify by " un- lawful intention." Culpa is exactly what we mean by " negligence," the falling short of that care and circum- spection which is due from one man to another. The rules specially dealing with this branch have to define the measure of care which the law prescribes as due in the case in hand. The Roman conception of such rules,'as worked out by the lawyers of the classical period, is excellently illustrated by the title of the Digest " ad legem Aqui- liam," a storehouse of good sense and good law (for the ()■) In his edition of the Institutes, note to Bk. iv. tit. 1, p. 613, 2nd ed. P. C 18 THE NATUEE OF TORT IN GENERAL. principles are substantially the same as ours) deserving much more attention at the hands of English lawyers than it has received. It is to be observed that the Eoman theory was buUt up on a foundation of archaic materials by no means unlike our own ; the compensation of the civilized law stands instead of a primitive retaliation which was still recognized by the law of the Twelve Tables. If then we |put aside the English treatment of rights of property as being accounted for by historical accidents, we find that the Eoman conception of delict altogether supports (and by a perfectly independent analogy) the conception that appears really to underlie the English law of tort. Liability for delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or wanton disregard of what is due to them {dolus), or of a failure to observe due care and caution which has similar though not intended or expected consequences {culpa). We have, moreover, apart from the law of trespass, an Liabaity exceptionally stringent rule in certain cases where liability quasi ex , inn- delicto. is attached to the befallmg of harm without proof of either intention or negligence, as was mentioned under Group C of our provisional scheme. Such is the case of the landowner who keeps on his land an artificial reservoir of water, if the reservoir bursts and floods the lands of his neighbours. Not that it was wrong of him to have a reservoir there, but the law says he must do so at his own risk (s). This kind of liability has its parallel in Eoman law, and the obligation is said to be not ex delicto, since true delict involved either dolus or culpa, but quasi ex delicto {t). Whether to avoid the difficulty of proving (s) Bylands v. Fletcher, L. E. it deserves. It is true, ho-wever, 3 H. L. 330, 37 L. J. Ex. 161. that the application of the term in [t) Austin's perverse and unia- the Institutes is not quite con- telligent criticism of this perfectly sistent or complete. See Mr. rational terminology has been Moyle's notes on I. iv. 5. treated with far more respect than RELATION OF WRONG TO DAMAGE. 19 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 heen diligent, the mere fact of the mischief happening gives birth to the obligation. In the cases of carriers and innkeepers a similar liability is a very ancient part of our law. What- ever the original reason of it may have been as matter of history, we may be sure that it was something quite unlike the reasons of poKoy governing the modern class of cases of which Bylands v. Fletcher [u) is the type and leading authority; by such reasons, nevertheless, the rules must be defended as part of the modern law, if they can be defended at all. On the whole, the result seems to be partly negative, but Summary, also not to be barren. It is hardly possible to frame a definition of a tort that will satisfy all the meanings in which the term has been used by persons and in documents of more or less authority in our law, and will at the same time not be wider than any of the authorities warrant. But it appears that this difficulty or impossibility is due to particular anomalies, and not to a total want of general principles. Disregarding those anomalies, we may try to sum up the normal idea of tort somewhat as follows : — Tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related to harm suffered by a deter- minate person in one of the following ways : — (a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of. (b) It may be an act in itself contrary to law, or an {u) L. E. 3 H. L. 330. See Ch. XII. below. c2 20 XHE NATURE OF TORT IN GENERAL. omission of specific legal duty, which causes harm not intended by the person so acting or omitting. (c) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should with due diligence have foreseen and prevented. (d) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound, absolutely or within limits, to avoid or prevent. A special duty of this last kind may be (i) absolute, (ii) Kmited to answering for harm which is assignable to negligence. In some positions a man becomes, so to speak, an insurer to the public against a certain risk, in others he warrants only that all has been done for safety that reasonable care can do. Connected in priuciple 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 ser- vants in the course of their employment. This is indication rather than definition : but to have guiding principles indicated is something. We are entitled, and in a manner bound, not to rush forthwith into a detailed enumeration of the several classes of torts, but to seek first the common principles of liability, and then the common principles of immunity which are known as matter of justification and excuse. There are also special condi- tions and exceptions belonging only to particular branches, and to be considered, therefore, in the places appropriate to those branches. 21 OHAPTEE II. PRINCIPLES OF LIABILITY. There is no express authority that I know of for stating Want of as a general proposition of English law that it is a wrong in early to do wilful harm to one's neighbour without lawful justi- ^^" fication or excuse. Neither is there any express authority for the general proposition that men must perform their contracts. Both principles are in this generality of form or conception, modern, and there was a time when neither was true. Law begins not with authentic general princi- ples, 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 cer- tain kinds of injury which have certain penalties assigned to them. Thus in the Anglo-Saxon and other early Grer- manie 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 («). Whatever agreements are outside the specified (a) In Gaius iii. 223, 224, the modem than the English law of contrast between the ancient law the Year-Books. Perhaps the his- of fixed penalties and the modern torioal contrast holds only in law of damages assessed hy judicial Europe : see a note in L. Q. R. authority is clearly shown. The ix. 97, showing that among the student wiU remember that, as re- Kaohius on the Burmese frontier gards the stage of deyelopment at- claims for unliquidated damages tained, the law of Justinian, and are not only known but freely often that of G-aius, is far more assignable. 22 PRINCIPLES OF LIABILITY. forms of obligation and modes of proof are incapable of enforcement; whatever injuries are not in the table of compensation must go without legal redress. The phrase clammim sine iniuria, -which for the modern law is at best insignificant, has meaning and substance enough in such a system. Only that harm which falls within one. of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy. Gen era! Such is not the modern way of regarding legal duties or to do harm remedies. It is not only certain favoured kinds of agree- law. ment that are protected, but all agreements that satisfy certain general conditions are valid and binding, subject to exceptions which are themselves assignable to general principles of justice and 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 situations in which we are under no such duty appear at this day not as normal but as exceptional. A man cannot keep shop or walk into the street without being entitled to expect and bound to practise observance in this kind, as we shall more fully see hereafter. If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm; subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned — namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others — are all alike of a comprehen- sive nature. As our law of contract has been generalized by the doctrine of consideration and the action of assumpsit, SPECIFIC DUTIES. 23 SO has our law of civil wrongs by tlie wide and various application of actions on tlie case (b). The commission of an act specifically forhidden by law, Acts in or the omission or failure to perform any duty specifically gpeciflo imposed by law, is generally equivalent to an act done with legal duty. intent to cause wrongful injury. Where the harm that ensues from the unlawful act or omission is the very kind of harm which it was the aim of the law to prevent (and this is the commonest case), the justice and necessity of this rule are manifest without further comment. Where a statute, for example, expressly lays upon a railway com- pany the duty of fencing and watching a level crossing, this is- a legislative declaration of the diligence to be required of the company in providing against harm to passengers using the road. Even if the mischief to be prevented is not such as an ordinary man would foresee as the probable consequence of disobedience, there is some default in the mere fact that the law is disobeyed ; at any rate a court of law cannot admit discussion on that point ; and the defaulter must take 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 oif ence within the meaning of a penal statute (c) . As a matter of general policy, there are so many temptations to neglect public duties of all kinds for the sake of private interest that the addition of this quasi-penal sanction as a motive to their observance appears to be no bad thing. Many public duties, however, are wholly, created by special statutes. In such cases it is not an universal proposition that a breach (5) The developed Roman law pluribus modis admitti iniuriam had either attained or was on the manifeatum est" : I. iv. 4, 1. point of attaining a like generality (c) OuUi/ v. Smith (1883) 12 of application. "Denique aHis Q. B. D. 121, 63 L. J. M. 0. 35. 24 PRINCIPLES OF LIABILITY. 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 implication, any right of private suit {d). Also there is no cause of action ■where the damage complained of " is some- thing totally apart from the object of the Act of Parlia- ment," as being evidently outside the mischiefs which it was intended to prevent. What the legislature has declared to be VTrongfuI for a definite purpose cannot be therefore treated as wrongful for another and different purpose (e). Duty of As to the duty of respecting proprietary rights, we have propCTty.^ already mentioned that it is an absolute one. Further illustration is reserved for the special treatment of that division of the subject. Duties of Then we have the general duty of using due care and caution. What is due care and caution under given cir- cumstances has to be worked out in the special treatment of negligence. Here we may say that, generally speaking, the standard of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence. Assump- Moreover, if the party has taken in hand the conduct of skm.°* anything requiring special skill and knowledge, we require {d) Atkinson v. Newcastle Water- {e) Gorris v. Scott (1874) L. R. works Go. (1877) 2 Ex. Div. 441, 9 Ex. 125, 43 L. J. Ex. 92 ; TFdrd 46 L. J. Ex. 775. V. Sobbs (1878) 4 App. Ca. 13, 23, 48 L. J. Q. B. 281. BILIGENCE AND COMPETENCE. 25 of him a competent measure of the skill and knowledge usually found in persons who undertake such matters. And this is hardly an addition to the general rule ; for a man of common sense knows wherein he is competent and wherein not, and does not take on himself things in which he is incompetent. If a man will drive a carriage, he is hound 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 hricks, 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 be reasonably skilled at his peril. As the Eomans put it, imperitia culpae admuneratur {/). A good rider who goes out with a horse he had no cause to think ungovernable, and, notwithstanding all he can do to keep his horse in hand, is run away with by the horse, is not liable for what mischief the horse may do before it is brought under con- trol again {g) ; but if a bad rider is run away with by a horse which a fairly good rider could have kept in order, he will be liable. An exception to this principle appears Exception to be admissible in one uncommon but possible kind of aity*^"^^' circumstances, namely, where in emergency, and to avoid imminent risk, the conduct of something generally en- trusted to skilled persons is taken by an unskilled person ; as if the crew of a steamer were so disabled by tempest or sickness that the whole conduct of the vessel fell upon an engineer without knowledge of navigation, or a saUor (/) D. 60. 17, de div. reg. iuris {g) Sammack v. White (1862) 11 antiqui, 132; cf. D. 9. 2, ad legem C. B. N. S. 688, 31 L. J. C. P. Aquiliam, 8. Both passages are 129 ; Solmes v. Mather (1875) L. E. from Gaius. 10 Ex. 261, 44 L. J. Ex. 176. 26 PRINCIPLES OF LIABILITY. Liability in relation to conse- quences of act or default. without knowledge of steam-engines. So if the driver and stoker of a train were both disabled, say by sunstroke or lightning, the guard, who is presumably unskilled as 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 reasonably accord- ing to common knowledge if he acts at all ; but he cannot be answerable to the same extent that a surgeon would be. There does not seem to be any distinct authority for such cases ; but we may assume it to be law that no more is required of a person in this kind of situation than to make a prudent and reasonable use of such skill, be it much or little, as he actually has. 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 (A) was really the cause of that harm in a sense upon which the law can take action. The harm or loss may be traceable to his act, but the connexion may be, in the accustomed phrase, too remote. The maxim " In iure non remota causa sed proxima speetatur " is Englished in Bacon's constantly cited gloss : " It were infinite for the law to judge the causes of causes, and their impulsions one of another : therefore it contenteth itself with the immediate cause ; and judgeth of acts by that, without looking to any further degree" (j). Liability must be founded on an act which is the "immediate cause" (A) For shortness' sake I shall often use the -word " act " alone as equivalent to "act or default." {i) Maxims of the Law, Reg'. 1. It is remarkable that not one of the examples adduced by Bacon belongs to the law of torts, or raises a question of the measure of damages. There could be no stronger illustration of the ex- tremely modem character of the whole subject as now understood. MEASURE OF DAMAGES. 27 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 consequences is needful first to ascertain whether there is any liability at all, and then, if it is established that wrong has been committed, to settle the footing on which compensation for the wrong is to be awarded. The normal form of Measure of compensation for wrongs, as for breaches of contract, in ° the procedure of our Superior Courts of common law has been the fixing of damages in money by a jury under the direction of a judge. It is the duty of the judge (/i) to explain to the jurors, as a matter of law, the footing upon which they should calculate the damages if their verdict is for the plaintiif. This footing or scheme is called the "measure of damages.'' Thus, in the common case of a breach of contract for the sale of goods, the measure of damages is the difference between the price named in the contract and the market value of the like goods at the time when the contract was broken. In cases of contract there is no trouble in separating the question whether a contract has been made and broken from the question what is the proper measure of damages {I). 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 com- plained of. Except where we have an absolute duty and an act which manifestly violates it, no clear line can be drawn between the rule of liability and the rule of com- {k) SadUy r. Baxendale (1854) must, indeed, often turn on the 9 Ex. 341, 23 L. J. Ex. 179. measure of damages. But this [T) Whetlier it is practically need not concern us here, worth whUe to sue on a contract 28 PEINCIPLES OF LIABILITY, pensation. The measure of damages, a matter appearing at first siglit to belong to tlie law of remedies more than of " antecedent rights," constantly involves, in the field of torts, points that are in truth of the very substance of the law. It is under the head of " measure of damages " that these for the most part occur in practice, and are familiar to lawyers ; but their real connexion with the leading principles of the subject must not be overlooked here. Meaning of "imme- diate cause.'' The meaning of the term " immediate cause " is not capable of perfect or general definition. Even if it had an ascertainable logical meaning, which is more than doubtful, it would not follow that the legal meaning is the same. In fact, our maxim only points out that some consequences are held too remote to be counted. What is the test of remoteness we still have to inquire. The view which I shall endeavour to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed "immediate," "proximate," or, to anticipate a little, " natural and probable," which a person of average com- petence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was " immediate " or not does not matter. That which a man actually foresees is to him, at all events, natural and probable. Liability In the case of wilful wrong-doing we have an act quenoer* intended to do harm, and harm done by it. The inference of wilful q£ liability from such an act (given the general rule, and assuming no just cause of exception to be present) may CONSEQUENCES. 29 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 -wrong-doer intends to the events which in fact are brought to pass by his deed ; a relation which is not constant, nor always evident. A man strikes at another with his fist or a stick, and the blow takes effect as he meant it to do. Here the connexion of act and consequence is plain enough, and the wrongful actor is liable for the re- sulting hurt. But the consequence may be more than was it extends intended, or different. And it may be different either in oonse- respect of the event, or of the person affected. Nym ^^t"^!^ quarrels with Pistol and knocks him down. The blow is tended. not serious in itself, but Pistol falls on a heap of stones which cut and bruise him. Or they are on the bank of a deep ditch; Nym does not mean to put Pistol into the ditch, but his blow throws Pistol off his balance, whereby Pistol does fall into the ditch, and his clothes are spoilt. These are simple cases where a different consequence from that which was intended happens as an incident of the same action. Again, one of Jack Cade's men throws a stone at an alderman. The stone misses the alderman, but strikes and breaks a jug of beer which another citizen is carrying. Or Nym and Bardolph agree to waylay and beat Pistol after dark. Poins comes along the road at the time and place where they expect Pistol ; and, taking him for Pistol, Bardolph and Nym seize and beat Poins. Clearly, just as much wrong is done to Poins, and he has the same claim to redress, as if Bardolph and Nym meant to beat Poins, and not Pistol (w). Or, to take an actual and well-known case (m) In criminal law there is some is in no way excused by the mis- difficnlty in the case of attempted take, and cannot be heard to say personal offences. There is no that he had no unlawful intention doubt that if A. shoots and kills as to X. : S. v. Smith (1855) Dears, or wounds X., under the belief 659. But if he misses, it seems that the man he ehoota at is Z., he doubtful whether he can be said 30 PRINCIPLES OF LIABILITY. in our books (n), Shepherd throws a lighted squib into a building full of people, doubtless intending it to do mis- chief of some kind. It falls near a person who, by an instant and natural act of self -protection, casts it from him. A third person again does the same. In this third flight the squib meets with Scott, strikes him in the face, and explodes, destroying the sight of one eye. Shepherd neither threw the squib at Scott, nor intended such grave 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 obTious to common sense that he ought to be. He went about to do harm, and having begun an act of wrongful mischief, he cannot stop the risk at his pleasure, nor confine it to the precise objects he laid out, but must abide it fully and to the end. "Natural This principle is commonly expressed in the maxim that quencea:" "^ man is presumed to intend the natural consequences of the rule to ^^^ ^°*'® " " ^ proposition which, with due explanation and the actor's within due limits, is acceptable, but which in itself is iatention. ambiguous. To start from the simplest case, we may know that the man intended to produce a certain consequence, and did produce it. And we may have independent proof of the intention ; as if he announced it beforehand by threats or boasting of what he would do. But oftentimes the act to have attempted to kill either X. 892 ; and in 1 Sm. L. C. No doubt or Z. Cf. S. T. Latimer (1886) 17 was entertained of Shepherd's lia- Q. J5. D. 359, 65 L. J. M. C. 135. bility ; the only question being in In Germany there is a whole litera- what form of action he was liable, ture of modern controversy on the The inference of wrongful inten- Bubject. See Dr. R. Franz, " Vor- tion is in this case about as ob- stellung und WUle in der modernen Tious as it can be ; it was, however, Doluslehre," Ztsoh. fiirdiegesamte not necessary, squib-throwiug, as Strafrechtswissenschaft, x. 169. Nares J. pointed out, having been (b) Scott V. Shepherd, 2 W. Bl. declared a nuisance by statute. CONSEQUENCES, 31 itself is tlie chief or sole proof of the intention with which it is done. If we see Nym walk up to Pistol and knock him down, we infer that Pistol's fall was intended by Nym as the consequence of the blow. We may be mistaken in this judgment. Possibly Nym is walking in his sleep, and has no real intention at all, at any rate none which can be imputed to Nym awake. But we do naturally infer inten- tion, and the chances are greatly in favour of our being right. So nobody could doubt that when Shepherd threw a lighted squib into a crowded place he expected and meant mischief of some kind to be done by it. Thus far it is a real inference, not a presumption properly so called. Now take the case of Nym knocking Pistol over a bank into the ditch. We will suppose there is nothing (as there weU. may be nothing but Nym's own worthless assertion) to show whether Nym knew the ditch was there; or, if he did know, whether he meant Pistol to fall into it. These questions are like enough to be insoluble. How shall we deal with them ? We shall disregard them. From Nym's point of view his purpose may have been simply to knock Pistol down, or to knock him into the ditch also ; from Pistol's point of view the grievance is the same. The wrong-doer cannot call on us to perform a nice discrimination of that which is vrilled by him from that which is only conse- quential on the strictly vnlf ul wrong. We say that inten- tion is presumed, meaning that it does not matter whether intention can be proved or not ; nay, more, it would in the majority of cases make no diEEerence if the wrong-doer could disprove it. Such an explanation as this — "I did mean to knock you down, but I meant you not to fall into the ditch" — would, even if believed, be the lamest of apologies, and it would no less be a vain excuse in law. The habit by which we speak of presumption comes Meaning 32 PEINCIPLES OF LIABILITY. conse- quence. of " na- probably from the time when, inasmuch as parties could tural and ,. probable" 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 " (o). Still there is more in our maxim than this. For although we do not care whether the man intended the particular consequence or not, we have in mind such consequences as he might have intended, or, without exactly intending them, contemplated as possible ; so that it would not be absurd to infer as a fact that he either did mean them to ensue, or recklessly put aside the risk of some such consequences ensuing. This is the limit introduced by such terms as " natural " — or more fully, " natural and probable " — consequence [p). What is natural and probable in this sense is commonly, but not always, obvious. There are consequences which no man could, with common sense and observation, help foreseeing. There are others which no human prudence could have foreseen. Between these extremes is a middle region of various probabilities divided by an ideal boundary which will be differently fixed by different opinions ; and as we approach this boundary the difficulties increase. There is a point where subsequent events are, according to common understanding, the consequence not of the first wrongful act at all, but of something else that has happened in the meanwhile, though, but for the first act, the "event might or coidd not have been what it was {q). But that point (o) Tear-Book 17 Edw. IV. 1, J. in Smith v. Green, 1 C. P. D. translated in Blackburn on Sale, at p. 96. But what is normal or at p. 193 in 1st ed., 261 in 2nd ed, likely to a specialist may not be by Graham. normal or likely to a plain man's (p) " Normal, or likely or prob- knowledge and experience. able of occurrence in the ordinary (j) Thus Quaiu J. said (Sneeshy course of things, would perhaps v. L. dS- Y. Rail. Co., L. R. 9 Q. B. be the better expression " : Grove at p. 268) : "In tort the defendant CONSEQUENCES. 33 cannot be defined by science or pbilosophy (;•) ; and even if it could, tbe 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 conse- quences " as it is generally accepted. In whatever form we state it, we must remember that it is not a logical definition, but only a guide to the exercise of common sense. The lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical con- troversies that beset the idea of cause. In Vandenhurgh v. Truax (s), decided by the Supreme Vandm- Court of NewTork in 1847, the plaintiff's servant and the tIImx.' defendant quarrelled in the street. The defendant took hold of the servant, who broke loose from him and ran away; "the defendant took up a pick-axe and followe4 the boy, who fled into the plaiutifi's store, and the de- fendant pursued him there, with the pick-axe in his hand." In running behind the counter for shelter the servant knocked out the faucet from a cask of wine, whereby the wine ran out and was lost. Here the defendant (whatever the merits of the original quarrel) was clearly a wrong- doer in pursuing the boy; the plaintiff's house was a natural place for his servant to take refuge in, and it was is liable for all the consequences difficulty in philosophy as in of his illegal act, where they are law " : Seton v. Lafone (1887) 19 not so remote as to have no direct Q. B. Div. at p. 74, 56 L. J. Q. B. connexion with the act, as by the 415. lapse of time for instance." (s) 4 Denio, 464. The decision [r) "The doctrine of causation," seems to be generally accepted as said Fry L. J., "involves much good law. P. r> 34 PRINCIPLES OF LIABILITY, Guille V. Swan. 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 {t), where one Gruille, after going up in a balloon, came down in Swan's garden. A crowd of people, attracted hy the balloon, broke into the garden and trod down the vege- tables and flowers. Gruille's descent was in itself plainly a trespass ; and he was held liable not only for the damage done by the balloon itself but for that which was done by the crowd. " If his descent under such circumstances would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuiag him from a perilous situation ; all this he ought to have foreseen, and must be responsible for" {u). In both these cases the squib case was commented and relied on. Similarly it has many times been said, and it is undoubted law, that if a man lets loose a dangerous animal in an inhabited place he is liable for all the mischief it may do. Liability The balloon case illustrates what was observed iu the quences of ^^^t chapter on the place of trespass in the law of torts. trespass, rp^^g trespass was not in the common sense wilful ; Gruille certainly did not mean to come down into Swan's garden, which he did, in fact, with some danger to himself. But a man who goes up in a balloon must know that he has to {t) Guille Y. Swan (1822) 19 Jolms. 381. {«) Per Spencer C.J. It appeared tliat tlie defendant (plaintiff in error) had called for help ; but this was treated as immaterial. The recent Scottish case of Scott's Trustees t. Moss (1889), 17 Ct. of Sess. C. 4th S. 32, is hardly so strong, for there a parachute descent was not only contemplated but advertised as a public enter- tainment. REMOTENESS OF DAMAGE. 35 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 otjection. G-uille's liability was accordingly the same as if the balloon had been under his control, and he had guided it into Swan's garden. If balloons were as manageable as a vessel at sea, and by some accident which could not be ascribed to any fault of the traveller the steering apparatus got out of order, and so the balloon drifted into a neighbour's garden, the result might be different. So, if a landslip carries away my land and house from a hillside on which the house is built, and myself in the house, and leaves all overlying a neighbour's field in the valley, it cannot be said that I am liable for the damage to my neighbour's land ; indeed, there is not even a technical trespass, for there is no voluntary act at all. But where trespass to property is committed by a voluntary act, known or not known to be an infringement of another's right, there the trespasser, as regards liability for consequences, is on the same footing as a wilful wrong-doer. A simple example of a consequence too remote to be Conse- , , quence too ground for liability, though it was part of the incidents remote: following on a wrongful act, is afforded by Glover v. I'^^^s.'w. London and South Western Railway Company {v). The ^'"''- ^''• plaintiff, being a passenger on the railway, was charged by the company's ticket collector, wrongly as it turned out, with not having a ticket, and was removed from the train by the company's servants with no more force than was necessary for the purpose. He left a pair of race-glasses in the carriage, which were lost ; and he sought to hold (j>) (1867) li. E. 3 Q. B. 25, 37 L. J. Q. B. 57. d2 crunma law. 36 PRINCIPLES OF LIABILITY. the company liable not only for the personal assault com- mitted by taking him out of the train, but for the value of these glasses. The Court held without difficulty that the loss was not the " necessary consequence " or " immediate result " of the wrongful act : for there was nothing to show that the plaintiff was prevented from taking his glasses with him, or that he would not have got them if after leaving the carriage he had asked for them. Question In criminal law the question not unfrequently occurs, on kilSig in^ a charge of murder or manslaughter, whether a certain act or neglect was the " immediate cause " of the death of the deceased person. We shall not enter here upon the cases on this head; but the comparison of them will be found in- teresting. They are collected by Sir James Stephen («). Liability The doctrine of " natural and probable consequence " is gence most clearly illustrated, however, ia the law of negligence, on^pro-^ For there the substance of the wrong itself is failure to babiiity of apt -^yit]2 due foresight : it has been defined as " the omis- conse- _ _ _ quenoe, sion to do something which a reasonable man, guided upon capability those Considerations which ordinarily regulate the conduct foreseea °^ human affairs, would do, or doing something which a ^y ^ prudent and reasonable man would not do " (y) . Now a reasonable . man. reasonable man can be gmded only by a reasonable esti- mate of probabilities. If men went about to guard them- selves against every risk to themselves or others which might by ingenious conjecture be conceived as possible human affairs could not be carried on at all. The reason- able man, then, to whose ideal behaviour we are to look as [x) Digest of the Criminal Law, This is not a complete definition, Arts. 219, 220. since a man is not liable for even [y) Alderson B. in Blyth t. wilful omission without some ante- Birmingham Waterworks Co. (1856) cedent ground of duty. But of 11 Ex. 781, 25 L. J. Ex. 212. that hereafter. PBOXIMA.TE OR EEMOTE CAUSE. 37 tlie standard of duty, will neither neglect what he can fore- cast as prohahle, nor waste his anxiety on events that are barely possible. He wiU order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant's place should have fore- seen as likely to happen, there is no wrong and no liability. And the statement proposed, though not positively laid down, in Greenland v. Chaplin (s), namely, " that a person is expected to anticipate and guard against all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur," appears to contain the only rule tenable on principle where the liability is founded solely on negligence. " Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated," may be the ground of legal compensation under some rule of exceptional severity, and such rules, for various reasons, exist; but under an ordinary rule of due care and caution it cannot be taken into account. We shall now give examples on either side of the line. Examples: In Silly. New Riter Company (a), the defendant company HUl v. had in the course of their works caused a stream of water co. to spout up in the middle of a public road, without making any provision, such as fencing or watching it, for the safety of persons using the highway. As the plaintiff's horses and carriage were being driven along the road, the (2) Per Pollock C. B. (1850) 5 Sarris v. Mobbs (Denman J. 1878) Ex. at p. 248. 3 Ex. D. 268, whioh, perhaps, («) 9 B. & S. 303 (1868) ; op. goes a step farther. 38 PRINCIPLES OF LIABILITY, horses shied at the water, dashed across the road, and fell into an open excavation by the roadside which had been made by persons and for purposes unconnected with the water company. It was argued that the immediate cause of the injuries to man, horses, and carriage ensuing upon this fall was not the unlawful act of the water company, but the neglect of the contractors who had made the cutting in leaving it open and unfenced. But the Court held that the " proximate cause " was " the first negligent act which drove the carriage and horses into the excavation." In fact, it was a natural consequence that frightened horses should bolt off the road ; it could not be foreseen exactly where they would go ofE, 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 embank- ment, or down a precipice, it would scarcely have been possible to raise the doubt. Williams Williams v. Great Western Railway Company (b) is a £aiL Co', stronger case, if not an extreme one. There were on a portion of the company's line in Denbighshire two level crossings near one another, the railway meeting a carriage- road in one place and a footpath (which branched ofi 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, was found lying on the rails by (i) L. R. 9 Ex. 157,43L.J.Ex. Central Bail. Co. (1883) HI U. S. 105(1874). C^.EayesY. Michigan 228. PROXIMATE OR REMOTE CAUSE. 39 the footpath, with one foot severed from his hody. There was no evidence to show how the child had come there, beyond this, that he had been sent on an errand a few minutes before from the cottage where he lived, which lay by the roadside, at about 300 yards distance from the rail- way, and farther from it than the point where the footpath diverged from the road. It was suggested on the part of the defendants that he had gone along the road, and then, reaching the railway, had strayed down the line ; and on the part of the plaintifE, that he had gone along the open footpath, and was crossing the line when he was knocked down and injured by the passing train." On these facts it was held that there was evidence proper to go to a jury, and on which they might reasonably find that the accident to the child was caused by the railway company's omission to provide a gate or stUe. " One at least of the objects for which a gate or stUe is required is to warn people of what is before them, and to make them pause before reaching a dangerous place like a rail- road "(c). In Bailiffs of Romncij Marsh v. Trinity House (d), a Bailiffs of Trinity House cutter had by negligent navigation struck on Marsh v. a shoal about three-quarters of a mile outside the plaintiffs' ^^^sjf sea-wall. Becoming unmanageable, the vessel was in- evitably 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 [c] Amphlett B. at p. 162. E. 466, a brig by negligent navi- {i) L. B. 5 Ex. 204, 39 L. J. gation ran into a bark, and disabled Ex. 163 (1870); in Ex. Cb. L. E. ber ; tbe bark was driven on sbore ; 7 Ex. 247(1872). Tbis comes near beld tbat the owners of tbe brig tbe case of letting loose a danger- were liable for injury ensuing from ous animal ; a drifting vessel is in the wreck of tbe bark to persons on itself a dangerous thing. In The board her. George and Richard, L. R. 3 A. & 40 PKINCIPLES OF LIABILITY. Lynch v. Nurdin. Con- trasted cases of non- liability and lia- bility : Cox V. Surl'xdgc, 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. Something like this, but not so simple, was Lynch v. Ntirdin (e), 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 in the cause, was climbing into the cart another pulled the horse's bridle, the horse moved on, and the plaintiff fell down under the wheel of the cart and was hurt. The owner who had left the cart and horse unattended was held liable for this injury. The Court thought it strictly within the province of a jury " to pronounce on all the circumstances, whether the defendant's conduct was want- ing in ordinary care, and the harm to the plaintiff such a result of it as might have been expected " (/). 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 first sight pretty much alike in their facts, but in one of which the claim succeeded, while in the other it failed, will (e) 1 Q. B. 29, 10 L. J. Q. B. 73 (1841); cp. Clark v. Chambers, 3 Q. B. D. at p. 331. (/) This case was relied on in Massachusetts in Fowell v. Deveney (1849) 3 Gush. 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 simi- larly placed on the opposite side of the road : the driver of a third truck, endeavouring with due cau- tion, as it was found, to drive past through the narrowed fairway thus left, struck the shafts of the de- fendant's truck, which whirled round and struck and injured the plaintiff, who was on the sidewalk. Held, the defendant was liable. If the case had been that the shafts of the truck remained on the side- walk, and the plaintiff afterwards stumbled on them in the dark, it would be an almost exact parallel to Clark v. Chambers (3 Q. B. D. 327, 47 L. J. Q. B. 427 ; see below). PROXIMATE OR REMOTE CAUSE. 41 show where the line is drawn. If a horse escapes into a Lee v. RiliBt/ public road and kicks a person who is lawfully on the road, its owner is not liable unless he knew the horse to be vicious (gr). He was bound indeed to keep his horse from straying, but it is not an ordinary consequence of a horse being loose on a road that it should kick human beings without provocation. The rule is different however if a horse by reason of a defective gate strays not into the road but into an adjoining field where there are other horses, and kicks one of those horses. In that case the person whose duty it was to maintain the gate is liable, to the owner of the injured horse (A). The leading case of Metropolitan Rail. Co. v. Jackson (i) MetropoU- is in truth of this class, though the problem arose and was co. v. considered, in form, upon the question whether there was ■^'^^^'>"- any evidence of negligence. The plaintiff was a passenger in a carriage already over-full. As the train was stopping at a station, he stood up to resist yet other persons who had opened the door and tried to press in. While he was thus standing, and the door was open, the train moved on. He laid his hand on" the door-lintel for support, and at the same moment a porter came up, turned off the intruders, and quickly shut the door in the usual manner. The plaintiff's thumb was caught by the door and crushed. After much difference of opinion in the courts below, mainly due to a too literal following of certain previous authorities, the House of Lords unanimously held that, Iff) Cox V. BurUdge (1863) 13 C. jEllis v. Loftus Iron Co., L. R. 10 B. N. S. 430, 32 L. J. C. P. 89. C. P. 10, 44 L. J. C. E. 24. (A) Lee v. RiUy (1865) 18 C. B. (i) 3 App. Ca. 193, 47 L. J. N. S. 722, 34 L. J. C. P. 212. 0. P. 303 (1877). Cp. Cobb v. Both decisions were unanimous, G. W. M. Co. '93, 1 Q. B. 459, 62 and two judges (Erie C. J. and L. J. Q. B. 335, 4 R. 283. Keating J.) took part in botii. Op. 42 PRINCIPLES OP LIABILITY. assuming the failure to prevent overcrowding to be negli- gence 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. Non- Unusual conditions brought about by severe frost have for con- niore than once been the occasion of accidents on which of'u^nusual untenable claims for compensation have been founded, the state of Courts holding that the mishap was not such as the party myth Y. charged with causing it by his negligence could reason- Bummg- ^\^j ■\^q expected to provide against. In the memorable Water- " Crimean winter " of 1854-5 a fire-plug attached to one of the mains of the Birmingham "Waterworks Company was deranged by the frost, the expansion of superficial 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 required (Ji). Here nothing was alleged as constituting a wrong on the company's part beyond the mere fact that they did not take extraordinary precautions. Sharp y. The later case of Sharp v. Pmoell {I) goes farther, as the story begins with an act on the defendant's part which [k) Blyth V. Birmingham Water- the case is instructive for com- works Co. (1856) 11 Ex. 781, 25 parison with, tlie others here cited. L. J. Ex. 212. The question was Cp. Mayne on Damages, Preface not really of remoteness of damage, to the first edition, but whether there was any evidence [l) L. R. 7 0. P. 253, 41 L. J. of negligence at all ; nevertheless C. P. 95 (1872). PROXIMATE OR REMOTE CAUSE. 43 was a clear breach of the law. He caused his van to he washed in a public street, coutrary to the Metropolitan Police Act. The water ran down a gutter, and would in fact (»)) (but for a hard frost which had then set in for some time) have run harmlessly down a grating into the sewer, at a corner some twenty-five yards from where the van was washed. As it happened, the grating was frozen over, the water spread out and froze into a sheet of ice, and a led horse of the plaintiff's slipped thereon and broke its knee. It did not appear that the defendant or his servants knew of the stoppage of the grating. The Court thought the damage was not " within the ordinary conse- quences " («) of such an act as the defendant's, not " one which the defendant could fairly be expected to anticipate as likely to ensue from his act " (o) : he " could not reasonably be expected to foresee that the water would accumulate and freeze at the spot where the accident happened" {p). Some doubt appears to be cast on the rule thus laid Question, down — which, it is submitted, is the right one — by what rule tolds was said a few years later in Clark v. Chambers {q), though q°uencerof not by the decision itself. This case raises the question wilful •' wrong : whether the liability of a wrong-doer may not extend ciarh\. even to remote and unlikely consequences where the Chambers. 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 (ohevaux-de-frise), across a road subject to other persons' rights of way. An opening was at most [m) So the Court found, having [p) Bovill C. J. power to draw inferences of fact. (?) 3 Q. B. D. 327, 47 L. J. (m) Grove J. Q. B. 427 (1878). (o) Keating J. 44 PRINCIPLES OF LIABILITY. times left in the middle of the barrier, and was there at the time when the mischief happened. 2. The plaintiff went after dark along this road and through the opening, by the invitation of the occupier of one of the houses to which the right of using the road belonged, and in order to go to that house. 3. Some one, not the defendant or any one authorized by him, had removed one of the chevaux-de-frise barriers, and set it on end on the footpath. It was suggested, but not proved, that this was done by a person entitled to use the road, in exercise of his right to remove the unlawful obstruction. 4. Eetuming later in the evening from his friend's house, the plaintiff, after safely passing through the central opening 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 (/■) held that the damage was nearly enough connected with the defendant's first wrongful act — namely, obstructing the road with in- struments dangerous to people lawfully using it — for the plaintiff to be entitled to judgment. It is not obvious why and how, if the consequence in Clark v. Chambers was natural and probable enough to justify a verdict for the plaintiff, that in Sharp v. Powell was too remote to be- submitted to a j ury at all. The Court did not dispute the correctness of the judgments iu Sharp v. Powell "as applic- able to the circimistances of the particular case;" but their [r) Cockbirm C. J. and Manisty teing Uable : 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 third wider scope, person's act prevented him from CONSEQUENCES. 45 final observations (s) certainly tend to the opinion that in a case of active wrong-doing the rule is different. Such an opinion, it is submitted, is against the general weight of authority, and against the principles underlying the autho- rities (t). However, their conclusion may be supported, and may have been to some extent determined, by the special rule imposing the duty of what has been called " consummate caution " on persons dealing with dangerous instruments. Perhaps the real solution is that here, as in Sill v. iVezf Conse- Miver Co. (tt), the kind of harm which in fact happened might natural in have been expected, though the precise manner in which it ^^"^"^ . happened was determined by an extraneous accident. If not in in this case the spikes had not been disturbed, and the stance. plaintiff had in the dark missed the free space left in the barrier, and run against the spiked part of it, the defen- dant's liability could not have been disputed. As it was, the obstruction was not exactly where the defendant had put it, but stni it was an obstruction to that road which had been wrongfully brought there by him. He had put it in the plaintiff's way no less than Shepherd put his squib in the way of striking Scott ; whereas in Sharp v. Poivell the mischief was not of a kind which the defendant had any reason to foresee. The turn taken by the discussion in Clai'k v. Chambers was, in this view, unnecessary, and it is to be regretted that a considered judgment was delivered in a form tend- ing 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 («) 3 Q. B. D. at p. 338. for disregard of statutory provi- («) Compare the cases on slander sions, Gorris v. Scott (1874) L. E. coUeoted in the notes to Vicars v. 9 Ex. 125, 43 L. J. Ex. 92. Wilcocka, 2 Sm. L. C. Compare {tt) P. 37, aboye. also, as to consequential liability 46 PRINCIPLES OF LIABILITY. Damages for "ner- vous or mental shook" whether too re- mote. and the current of authority concur to maintain the law as declared in Sharp v. Powell. Where a wrongful or negligent act of A., threatening Z. with immediate hodily hurt, but not causing such hurt, produces in Z. a sudden terror or "nervous shock" from which bodily illness afterwards ensues, is this damage too remote to enter into the measure of damages if A.'s act was an absolute wrong, or to give Z. a cause of action if actual damage is the gist of the action ? The Judicial Committee decided in 1888 (m) that such consequences are too remote; but it is submitted that the decision is not satisfactory. A husband and wife were driving in a buggy across a level railway crossing, and, through the obvious and admitted negligence of the gatekeeper, the buggy was nearly but not quite run down by a train ; the husband " got the buggy across the line, so that the train, which was going at a rapid speed, passed close to the back of it and did not touch it." The wife then and there fainted, and it was proved to the satisfaction of the Court below " that she received a severe nervous shock from the fright, and that the illness from which she afterwards suffered was the consequence of the fright." It may be conceded that the passion of fear, or any other emotion of the mind, however painful and distressing it be, and however reason- able the apprehension which causes it, cannot in itself be regarded as measurable temporal damage; and that the judgment appealed from, i£ and so far as it purported to allow any distinct damages for " mental iajuries " («), was erroneous. But their Lordships seem to have treated this as obviously involving the further proposition that physical (m) Victorian Railways Commis- sioners V. Goultas, 13 App. Ca. 222, 57 L. J. P. 0. 69. (x) It is by no means clear that such was the intention or effect. See the report, 12 V. L. E. 896. The physical injuries were sub- stantial enough, for xhey included a miscarriage {ibid.). Whether that was really due to the fright was eminently a question of fact, and this was not ^sputed or discussed. CONSEQUENCES. 47 illness caused by reasonable fear is on the same footing. This does not follow. The true question would seem to be whether the fear in which the plaintiff was put by the defendant's wrongful or negligent conduct was such as, in the circumstances, would naturally be suffered by a person of ordinary courage and temper, and such as might there- upon naturally and probably lead, in the plaintiff's case {y), to the physical effects complained of. Fear taken alone falls short of being actual damage, not because it is a remote or unlikely consequence, but because it can be proved and measured only by physical effects. The opinion of the Judicial Committee, outside the colony of Victoria, is as extra-judicial as the contrary and (it is submitted) better opinion expressed in two places (2) by Sir James Stephen as to the possible commission of murder or manslaughter by the wilful or reckless inflic- tion of " nervous shock," or the later contrary decisions in Ireland and New York (a). And if the reasoning of the Judicial Committee be correct, it becomes rather difficult to see on what principle assault without battery is an actionable wrong {a). (y) This must be so unless we go has been frightened by the defen- back to the old G-ermanio method dant's negligent act : Manchester of a fixed scale of compensation. South Jn. E. Co. Y.FuUarton (1863) So, as regards the measure of 14 C. B. N. S. 54 ; Simkin v. L. ^ damages when liabULty is not N. W. R. Co. (1888) 21 Q. B. Div. denied, the defendant has to take 453; 59 L. T. 797; Brown y. Eastern his chance of the person disabled and Midlands R. Co. (1889) '22 Q. B. being a workman, or a tradesman Div. 391 ; 58 L. J. Q. B. 212. in a small way, or a physician with The Exchequer Division in Ireland a large practice. has refused to follow this doctrine (z) Dig. Or. Law, note to art. of the Judicial Committee : Hell v. 221 ; Hist. Cr. Law, iii. 5. G. N. R. Co. (1890) 26 L. E. Ir. (a) Cp. Mr. Beven's criticism of 428. So has the Supreme Court of this case, Principles of the Law of New York in. an almost identical Negligence; 66 — 71. Ashe justly case: Mitchell v. Rochester R. Co. points out, it has never been ques- (1893), see (New York) Univ. Law tioned that an action may Ue for Rev. i. 10. And see Ames, Sel. Ca. damage done by an animal which on Torts, 15, 16. 48 Personal status, as a rule, imma- terial in law of tort : but capacity in fact may be material. CHAPTEE III. PERSON^ AFFECTED BY TORTS. 1. — Limitations of 'Personal Capacity. In the law of contract various grounds of personal dis- ability have to he 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 civU injuries, or in the power of obtaining redress for them. It seems on principle that where a particular intention, knowledge, or state of mind in the person charged as a wrong- doer is an element, as it sometimes is, in constituting the alleged wrong, the age and mental capacity of the person may and should be taken into account (along with other relevant circum- stances) in order to ascertain as a fact whether that in- tention, 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 woidd be established or propounded {a). An idiot would scarcely be held answerable for incoherent words of vituperation, though, if uttered by a sane man, [a] Ulpian, in D. 9, 2, ad leg. AquU. 5, § 2. Quaerimus, si furiosus damnum dederit, an legis Aqniliae actio sit ? Et Pegasus negavit : quae enim in eo culpa sit, cum suae mentis non sit f Et boo est verissimum. . . . Quod si impubes id fecerit, Labeo ait, quia furti tenetur, teneri et Aquilia eum ; et hoc puto verum, si sit iam iniuriae capax. CONVICTS : ALIEN ENEMIES : INFANTS. 49 they might be slander. But this would not help a mono- maniac who should write libellous post-cards to all the people who had refused or neglected, say to supply him with funds to reeoTer the Crown of England. The amount of damages recovered might be reduced by reason of the evident insignificance of such libels; but that would be all. Again, a mere child could not be held accountable for not using the discretion of a man ; but an infant is certainly liable for all wrongs of omission as well as of commission in matters where he was, in the common phrase, old enough to know better. It is a matter of common sense, just as we do not expect of a blind man the same actions or readiness to act as of a seeing man. There exist partial exceptions, however, in the case of Partial or convicts and ahen enemies, and apparent exceptions as to excep-^ infants and married women. *^°'^ ■ A convicted felon whose sentence is iu force and unex- Convicts pired, and who is not " lawfully at large under any enemies, licence," cannot sue "for the recovery of any property, debt, or damage whatsoever" (Zi). An alien enemy cannot sue in his own right in any English court. Nor is the operation of the Statute of Limitations suspended, it seems, by the personal disability (c). With regard to infants, there were certain cases under Infants : the old system of pleading in which there was an option to contract J r o -"^ not to be sue for breach of contract or for a tort. In such a case an indirectly infant could not be made liable for what was in truth a by suing in tort. {b) 33 & 34 Vict. c. 23, ss. 8, 30. (c) See De TFahl v. Braune (1856) Can he sue for an injunction? Or 1 H. & N. 178, 25 L. J. Ex. 343 for a dissolution of marriage or (aUeu enemy : the law must be the judicial separation ? same of a convict) . P. E 50 PERSONS ArrECTED BY TORTS. breacli of contract hj framing the action ex delicto. "Tou cannot convert a contract into a tort to enable you to sue an infant: Jennings v. Bitndall" {d). And the principle goes to this extent, that no action lies against an infant for a fraud whereby he has induced a person to contract with him, such as a false statement that he is of full age (e). Limits of tlie rule : indepen- dent wrongs. But where an infant commits a wrong of which a con- tract, or the obtaining of something under a contract, is the occasion, but only the occasion, he is liable. In BurnardY. Haggis (/), the defendant in the County Court, an infant undergraduate, hired a horse for riding on the express condition that it was not to be used for jumping ; he went out with a friend who rode this horse by his de- sire, 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 " (/). This is, indeed, somewhat too widely expressed, for it does not in 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 authoriiied by me or personally repre- sents me, but because he is about my affairs, and I am bound to see that my affairs are conducted with due regard to the safety of others. Some time later the rule was put by Lord Cranworth in a not dissimilar form: the master "is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself or of those acting under his orders in the course of his business" (z). The statement of Willes J. that the master "has put the agent in his place to do that class of acts " is also to be noted and remembered as a guide in many of the questions that arise. A just view seems to be taken, though artificially and obscurely expressed, in one of the earliest reported cases on this branch of the law: "It («/) Farwell v. Boston and Wor- positive. C'est tme exigence de cester Mailroad Corporation (1842) 4 I'ordre social:" De la Eesponsa- Met. 49, and Bigelow L. 0. 688. bilite et de la Garantie, p. 124. The judgment is also reprinted in Paley (Mor. Phil. bk. 3, u. 11) found 3 Macq. 316. So, too, M. Sainc- it difl&cult to refer the rule to any telette, a recent Continental -writer principle of natural justice, on the subject, well says : " La (z) Barton's Hill Coal Co. v. Seid responsabilite du fait d'autrui n'est (1858) 3 Macq. 266, 283. 71 pas Tine flotion inventee par la loi 72 PERSONS AFFECTED BY TORTS. shall be intended tliat the servant had authority from his master, it being for his master's benefit" (a). Questions The rule, then (on whatever reason founded), being that sidered ' ^ master is liable for the acts, neglects, and defaults of herein. j^^g servants in the course of the service, we have to define further — 1. Who is a servant. 2. What acts are deemed to be in the course of service. 3. How the rule is affected when the person injured is himself a servant of the same master. Who is a 1. As to the first point, it is quite possible to do work responsi- ^°^ ^ man, in the popular sense, and even to be his agent ^^h" ^d"^ ■^°^ ^°™® purposes, without being his servant. The relation and con- 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 the workman the. end of his work, but directs, or at any moment may direct the means also, or, as it has been put, " retains the power of controlling the work " (b) ; and he who does work on those terms is in law a servant for whose acts, neglects, and defaults, to the extent to be specified, the master is Liable. An independent contractor is one who undertakes to produce a given result, but so that in the actual execution 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 strangers, no more than the buyer of goods {a) Tulenille v. Stmnpe (end of [b) Crompton J., Sadler v. Sen- 17th century) 1 Ld. Eaym. 26i. lock (1855) 4 E. & B. 570, 578, 24 L. J. Q, B, 138, 141. MASTER AND SERVANT. 73 is liable to a person wlio may be injured by tbe careless handling of them by the seller or his men in the course of delivery. If the contra.ot, for example, is to build a wall, and the builder " has a right to say to the employer, ' I mil agree to do it, but I shall do it after my own fashion ; I shall begin the wall at this end, and not at the other ; ' there the relation of master and servant does not exist, and the employer is not liable" (c). "In ascertaining who is liable for the act of a wrong-doer, you must look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control over the work. Tou cannot go further back and make the employer of that person liable " {d). He who controls the work is answerable for the workman ; the remoter em- ployer who does not control it is not answerable. This distinction is thoroughly settled in our law ; the difficulties that may arise in applying it are difficulties of ascertaiaing the facts (e). It may be a nice question whether a man has let out the whole of a given work to an "independent contractor," or reserved so much power of control as to leave him answerable for what is done (/) . (e) Bram-well L. J., Emp. L. thorities well reviewed in Eillard 1877, p. 68. An extra-judicial t. Michardson (Sup. Court, Mass. statement, but made on an occasion 1855) 3 Gray 349 ; and in Bigelow of importance by a great master of L. C. Exactly the same distinc- the common law. tion appears to be taken under tlie [d) Willes J., Murray v. Currie Code Napoleon in fixing the limits (1870) L. K. 6 C. P. 24, 27, 40 within which the very wide lan- L. J. C. P. 26. guage of Art. 1384 is to be applied : [e) One comparatively early case, Sainctelette, op. cit. 127. JBmh V. Steinman, 1 B. & P. 404, {/) PendleburyT.Greenhalgh{\.?,15) disregards the rule ; but that case 1 Q. B. Div. 36, 45 L. J. Q. B. 3, has been repeatedly commented on differing from the view of the same with disapproval (see Reedie v. L. facts taken by the Court of Queen's ^ iV. W. B. Co. (1849), '4 Ex. Bench.iaTaylory.Greenhalffh{187i) 244, 20 L. J. Ex. 65), and is L. E. 9 Q. B. 487, 43 L. J. Q. B. not now law. See the modern au- 168. 74 PERSONS AFFECTED BY TORTS. Specific assump- tion of control. Tempo- rary trans- fer of It must te remembered that the remoter employer, if at any point he does interfere and assume specific control, renders himself answerable, not as master, but as principal. He makes himself " dominus pro tempore." Thus the hirer of a carriage, driven by a coachman who is not the hirer's servant but the letter's, is not, generally speaking, liable for harm done by the driver's negligence {g). But if he orders, or by words or conduct at the time sanctions, a specific act of rash or careless driving, he may well be liable (A). Rather slight evidence of personal interference has been allowed as sufficient in this class of cases («'). One material result of this principle is that a person who is habitually the servant of A. may become, for a certain time and for the purpose of certain work, the servant of B. ; and this although the hand to pay him is still A.'s. The owner of a vessel employs a stevedore to unload the cargo. The stevedore employs his own labourers ; among other men, some of the ship's crew work for him by arrangement with the master, being like the others paid by the stevedore and under his orders. In the work of unloading these men are the servants of the stevedore, not of the owner (Z;). (17) Even if the driver -vras selected by Mmself ; Quannan v. Burnett (1840) 6 M. & W. 499. So -where a vessel is hired with its crew : Dalyell V. Tyrer (1858) 8 E. B. & E. 899, 28 L. J. Q. B. 52. So where a con- tractor finds horses and drivers to draw watering-carts for a munici- pal corporation, the driver of such a, cart is not the servant of the corporation : Jones\. Corporation of Liverpool (1885) 14 Q. B. D. 890, 54 L. J. Q. B. 345 ; cp. littU v. Saclcett (1886) 118 U.S. at pp. 371-3, 377. (/j) McLaughlin v. Pryor (1842) 4M. &a. 48. (i) lb. ; Burgess Y. Gray (1845) 1 C. B. 678, 14 L. J. C. P. 184. It is difficult in either case to see proof of more than adoption or acquies- cence. Cp. Jones V. Corporation of Literpool (1885) 14 Q. B. D. at pp. 893-4, 54 L. J. Q. B. 345. {h) Murray y. 0»-m (1870) L. E. 6 C. P. 24, 40 L. J. 0. P. 26. In this case the man was actually paid by the owner's agent and hia wages deducted in account with the stevedore, which of course makes no difference in principle. Cp. Wild V. Waygood, '92, 1 Q. B. 783, 61 L. J. Q. B. 391, C. A. MASTER AND SERVANT. 75 There is no "common employment" between the steve- dore's men and the seamen on hoard (/). Owners of a colliery, after partly sinking a shaft, agree with a contractor to finish the work for them, on the terms, among others, that engine power and engineers to work the engrae are to be proyided by the owners. The engine that has been used in excavating the shaft is handed over accordingly to the contractor ; the same engineer remains in charge of it, and is still paid by the owners, but is under the orders of the contractor. During the continuance of the work on these terms the engineer is the servant not of the colliery owners but of the contractor {m). But where iron-founders execute specific work about the structure of a new building under a contract with the architect, and without any contract with the builder, their workmen do not become servants of the builder («). It is proper to add that the "power of controlling the "Power of work" which is the legal criterion of the relation of a imgthe master to a servant does not necessarily mean a present ^i^ined^^' and physical ability. Shipowners are answerable for the acts of the master, though done under circumstances in which it is impossible to communicate with the owners (o). 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 com- [T) Cameron T. Nystrom (J. C. C. P. 283. See also Donovan v. from N. Z.), '93, A. C. 308, 62 L. Zaing, '93, 1 Q. B. 629, 4 R. 317, J. P. 0. 85, 1 R. 362 ; op. Union 63 L. J. Q. B. 25, C. A. Steamship Co. v. Glaridge, '94, A. C. {«) Johnsons. Lindsay, '91, A. C. 185, 6 R. June, 39. 371, 65 L. T. 97. (m) Mourhe v. White Moss Colliery (o) See Maude and Pollock, Mer- Co. (1877) 2 C. P. Div. 206, 46 L. J. ctant Shipping, i. 158, 4th ed. 76 PERSONS AFFECTED BY TORTS. pulsory pilot, who is in charge of the vessel independently of the owner's will, and, so far from being bound to obey the owner's or master's orders, supersedes the master for the time being, is not the owner's servant, and the statutory exemption of the owner from liability for such a pilot's acts is but in aiErmance of the common law {p). What is in 2. Next we have to see what is meant by the course of employ- Service or employment. The injury in respect of which a ™^'^*' master becomes subject to this kind of vicarious liability may be caused in the following ways : — (a) It may be the natural consequence of something being done by a servant with ordinary care in execution of the master's specific orders. (b) It may be due to the servant's want of care in carrying on the work or business in which he is employed. This is the commonest case. (c) The servant's wrong may consist in excess or 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. Execution (a) Here the servant is the master's agent in a proper ordCTs! ° 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 {p) Meroliant Shipping Act, 1854, semble that of master and servant s. 388 ; The Halley (1868) L. R. 2 for the purpose of creating a duty P. C. at p. 201. And see Marsden to the public : King v. London Im- on Collisions at Sea, 3rd ed. ch. 5. proved Cab Co. (1889) 23 Q. B. Div. On the other hand there may he 281 ; Keen v. Senry, '94, 1 Q. B. a statutory relation -which does re- 292, 9 R. Feb. 164, C. A. COURSE OF EMPLOYMENT. 77 desired liis servant to avoid them. Thus, in Gregory v. Piper (q), a right of way was disputed between adjacent oocupiers, and the one who resisted the claim ordered a labourer to lay down rubbish to obstruct the way, but so as not to touch the other's wall. The labourer executed the orders as nearly as he coidd, 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 natiiral consequences ; no more than he can disclaim responsibility for the natural consequences of what he does himself. (b) Then comes the case of the servant's negligence in Negli- ffGHCG 1 Tl the performance of his duty, or rather while he is about conduct of his master's business. What constitutes negligence does t^i^ess. not just now concern us ; but it must be established that the servant is a wrong-doer, and Kable to the plaintiff, before any question of the master's liability can be enter- tained. Assuming this to be made out, the question may occur whether the servant was in truth on his master's business at the time, or engaged on some pursuit of his own. In the latter case the master is not liable. " If the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it" (r). For example: "If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike {q) 9 B. & 0. 591 (1829). teeller (1853) 13 C. B. 237, 22 L. J. (r) Maule J., Mitchell v. Crass- C. P. 100. 78 PERSONS AFFECTED BY TOETS. the horses of another person, . . . the master will not be liahle. But if, in order to perform his master's orders, he strikes but injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment" (s). Departure Whether the servant is really bent on his master's affairs tion from Or not is a question of fact, but a question which may be business troublesome. Distiuctions are suggested by some of the reported cases which are almost too fine to be acceptable. The principle, however, is intelligible and rational. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determiae or suspend the master's responsibility. But where there is not merely deviation, but a total departure from the course of the master's business, so that the servant may be said to be "on a frolic of his own" (t), the master is no longer answerable for the servant's con- duct. Two modern cases of the same class and period, one on either side of the line, will illustrate this dis- tinction. Whatman In Whatman v. Pearson {u), a carter who was employed by a contractor, having the allowance of an hour's time for dinner in his day's work, but also having orders not to leave his horse and cart, or the place where he was employed, happened to live hard by. Contrary to his iastructions, he went home to dinner, and left the horse and cart unattended at his door ; the horse ran away and (s) Croft T. Alison (1821) 4 B. & case, but often cited with approval ; A. 590. see Burns v. Ponlsom (1873) L. R. 8 (i!) Parke B., Joel v. Morison C. P. at p. 567, 42 L. J. C. P. 302. (1834) 6 0. & P. 503 : a nisi prius («) L. E. 3 C. P. 422 (1868). COURSE OP EMPLOYMENT. 79 did damage to the plaiatifE's railings. A jury was held "warranted in finding that the carman was throughout in the course of his employment as the contractor's servant " acting within the general scope of his authority to con- duct the horse and cart during the day " («) . In Storey v. Ashton {y), a carman was returning to his Storeys. employer's office with returned empties. A clerk of the same employer's who was with him iaduced him, when he was near home, to turn off in another direction to call at a house and pick up something for the clerk. While the carman was driving in this direction he ran over the plaintiff. The Court held that if the carman " had been merely going a roundabout way home, the master would have been liable ; but he had started on an entirely new journey on his own or his fellow-servant's account, and could not in any way be said to be carrying out his master's employment" {z). More lately it has been held that if the servant begins using his master's property for purposes of his own, the fact that by way of afterthought he does something for his master's purposes also is not necessarily such a "re-entering upon his ordinary duties" as to make the master answerable for him. A journey undertaken on the servant's own account " cannot by the mere fact of the man making a pretence of duty by stopping on his way be converted into a journey made in the course of his employment " (a). {x) Byles J. at p. 425. Cookbum C. J. "Every step lie (y) (1869) L. E. 4 Q. B. 476, 38 drove was away from his duty : " L. J. Q. B. 223. Mitchell Y. Crass- Mellor J. , ibid. But it could have weller, cited on p. 77, was a very made no difference if the accident similar case. had happened as he was coming (z) Lush J. at p. 480. It was back. See the next case. " an entirely new and independent («) Mayner v. Mitchell (1877) 2 journey, which had nothing at aU C. P. D. 357. to do with his employment . '» 80 PERSONS ATFECTED BY TORTS. Williams The following is a curious example. A carpenter was employed by A, with B.'s permission to work for him in a shed belonging to B. This carpenter set fire to the shed in lighting his pipe with a shaving. His act, though negligent, having nothing to do with the purpose of his employment, A. was not liable to B. (b). It does not seem difficult to pronounce that lighting a pipe is not in the course of a carpenter's employment ; but the case was one of difficulty as being complicated by the argument that A., having obtained a gratuitous loan of the shed for his own purposes, was answerable, without regard to the relation of master and servant, for the conduct of persons using it. This failed for want of anything to show that A. had acquired the exclusive use or control of the shed. Apart from this, the facts come very near to the case which has been suggested, but not dealt with by the Courts in any , reported decision, of a miner opening his safety-lamp to get a light for his pipe, and thereby causing an explosion ; where "it seems clear that the employer would not be held liable" (c). Excess or (c) Another kind of wrong which may be done by a eieoutio™ Servant in his master's business, and so as to make the of autho- master liable, is the excessive or erroneous execution of a rity. lawful authority. To establish a right of action against the master in such a case it must be shown that (a) the servant intended to do on behalf of his master something of a kind which he was in fact authorized to do ; (/S) the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful. (b) Williams v. Jones (1865) Ex. burn JJ. Ch. 3 H. & C. 256, 602, 33 L. J. (c) R. S. (now Mr. Justice) Ex. 297 ; diss. Mellor and Black- Wright, Emp. L. 1876, p. 47. EXCESS OP AUTHORITY BY SEEVANT. 81 The master is chargeable only for acts of an authorized class which in the particular instance are wrongful hy reason of excess or mistake on the servant's part. For acts which he has neither authorized in kind nor sanctioned in particular he is not chargeable. Most of the cases on this head have arisen out of acts of Interfer- railway servants on behalf of the companies. A porter passengers whose duty is, among other things, to see that passengers /^f^^^ ^' do not get into wrong trains or carriages (but not to remove them from a wrong carriage), asks a passenger who has just taken his seat where he is going. The passenger answers, "To Macclesfield." The porter, thinking the passenger is in the wrong train, pulls him out ; but the train was in fact goiug to Macclesfield, and the passenger was right. On these facts a jury may well find that the porter was acting within his general authority so as to make the company liable (d). Here are both error and excess in the servant's action : error in supposing facts to exist which make it proper to use his authority (namely, that the passenger has got into the wrong train) ; excess in the manner of executing his authority, even had the facts been as he supposed. But they do not exclude the master's liability. " A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trasts him for the manner in which it is done ; and consequently he is held responsible for the wrong of the person so intrusted either in the manner of doing such an act, or in doing such an act imder circumstances in which it ought not to have been {d) BayUy Y.Manchester, SheffieU, -278, in '&s. Ch. 8 0. P. 148, 42 and LineolmUre R. Co. (1872-3) L. J. C. P. 78. L. H. 7 0. P. 415,41 L, J.'O. P. P. ^ - PERSONS AFFECTED BY TORTS. done; provided that what was done was done, not from any caprice of the servant, but in the course of the em- ployment" (e). Seymour v. Greenwood (/) is another illustrative case of this class. The guard of an omnibus removed a passenger whom he thought it proper to remove as being drunken and offensive to the other passengers, and in so doing used excessive violence. Even if he were altogether mistaken as to the conduct and condition of the passenger thus removed, the owner of the omnibus was answerable. " The master, by giving the guard authority to remove offensive passengers, necessarily gave him authority to determine whether any passenger had misconducted himself." Arrest of Another kind of case under this head is where a servant offenders, takes on himself to arrest a supposed offender on his employer's behalf. Here it must be shown, both that the arrest would have been justified if the offence had really been committed by the party arrested, and that to make such an arrest was within the employment of the servant who made it. As to the latter point, however, "where there is a necessity to have a 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 person on the spot who is acting as if he had express authority is jirima facie evidence that he had authority" [g). Railway companies have accordingly been held liable for wrongful arrests made by their inspectors or other ofEcers as for attempted frauds on the company punishable under statutes or authorized by-laws, and the like {h). [e) Per WiUes J., Bayley v. Man- (ff) BlsickhrrnLj.yMoorey.Metrop. Chester, Sheffield, and Lincolnshire M. Co. (1872) L. R. 8 Q. B. 36, 39, E. Co., L. R. 7 C. P. 416, 41 L. J. 42 L. J. Q. B. 23. C. P. 278. {h) lb., following Goff v. G. JST. (/) 7 H. & N. 355, 30 L. J. Ex. S. Co. (1861) 3 E. & E. 672, 30 189, 327, Ex. Cli. (1861). L. J. Q. B. 148. UNAUTHORIZED ACTS OF SERVANT. 83 But tlie master is not answerable if the servant takes on Act wholly himself, though in good faith and meaning to further the authority, master's interest, that which the master has no right to do ^able"^ "°' 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 («). The same rule holds if the particular servant's act is plainly beyond his authority, as where the officer in charge of a railway station arrests a man on sus- picion of stealing the company's goods, an act which is not part of the company's general business, nor for their apparent benefit {k). In a case not clear on the face of it, as where a bank manager commences a prosecution, which turns out to be groundless, for a supposed theft of the bank's property — a matter not within the ordinary routine of banking business, but which might in the particular case be within the manager's authority — the extent of the servant's authority is a question of fact (l). Much must depend on the nature of the matter in which the authority is given. Thus an agent entrusted with general and ample powers for the management of a farm has been held to be clearly outside the scope of his authority in entering on the adjacent owner's land on the other side of a boundary ditch in order to cut underwood which was choking the ditch and hindering the drainage from the farm. If he had done something on his employer's own land which was an actionable injury to adjacent land, the employer inight have been liable. But it was thought unwarrant- able to say " that an agent entrusted with authority to be (i) Foulton V. i. ^ S. W. E. Co. E. Co. (1870) L. R. 6 Q. B. 65, 40 (1867) L. R. 2 Q. B. 534, 36 L. J. L. J. Q. B. 55. Q. B. 294. (V) Bank of New South Wales v. (i) Edwards^. L.^N. W. R. Co. Owston (1879) (J. C.) 4 App.-Ca. <1870) L. R. 6 0. P. 445, 39 L. J. 270, 48 L. J. P. 0. 25. C. P. 241 ; cp. Allen t. i. # S. W. g2 master's purposes. 84 PERSONS AFFECTED BY TORTS, esercised over a particular piece of land has authority to commit a trespass on other land" (m). More generally, an authority cannot be implied for acts not necessary to protect the employer's property, such as arresting a cus- tomer for a supposed attempt to pass had money («). Wilful (d) Lastly, a master may he liahle even for wilful and &c. for ' deliberate wrongs committed by the servant, provided they be done on the master's account and for his purposes : and this, no less than in other cases, although the servant's conduct is of a kiad actually forbidden by the master. Sometimes it has been said that a master is not liable for the " wilful and malicious " wrong of his servant. If "malicious" means "committed exclusively for the ser- vant's private ends," or "malice" means "private spite" (o), this is a correct statement; otherwise it is contrary to modern authority. The question is not what was the nature of the act in itself, but whether the servant intended to act in the master's interest. This was decided by the Exchequer Chamber in Limpus V. London General Omnibus Company (p), where the de- fendant company's driver had obstructed the plaintiff's omnibus by pulling across the road in front of it, and caused it to upset. He had printed instructions not to race with or obstruct other omnibuses. Martin B. directed the jury, in effect, that if the driver acted in the way of his employment and in the supposed interest of his employers as against a rival in their business, the em- (m) BolinglroJce v. Swindon local [o) See per Blackburn J., 1 H. & Board (1874) L. E. 9 0. P. 575, 43 C. 543. L. J. C. P. 575. (p) 1 H. & C. 526, 32 L. J. Ex. (m) Abrahams v. Deakin, '91, 1 34 (1862). This and Seymour v. Q. B. 516 (0. A.), 60 L. J. Q. B. Greenwood (above) overrule any- 238. thing to the contrary iu M'Manus V. Criekett, 1 East, 106, 5 R. E. 618, FRAUD OF SERVANT. 85 ployers were answerable for his conduct, but they were not answerable if he acted only for some purpose of his own : and this was approved by the Court (q) above. The driver " was employed not only to drive the omnibus, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his em- ployment, when explained by his desire to get before the other omnibus." As to the company's instructions, "the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability" (r). That an employer is liable for frauds of his servant Fraud of committed without authority, but in the course of the eerrant. service and in apparent furtherance of the employer's purposes, was established with more difficulty ; for it seemed harsh to impute deceit to a man personally inno- cent of it, or (as in the decisive cases) to a corporation, which, not being a natural person, is incapable of personal ■wTong-doing (s). But when it was fully realized that in all these cases the master's liability is imposed by the policy of the law without regard to personal default on his part, so that his express command or privity need not be shown, it was a necessary consequence that fraud should be on the same footing as any other wrong (t). So the (q) 'Williams, Crompton, WiUes, corporation be invested with either Byles, Blackburn JJ., diss. Wight- rights or duties except through man J. natural persons who are its agents. (r) WiUes J. 1 H. & C. at p. 539. Cp. British Mutual Banking Co. y. («) This particular difficulty is Charnwood Forest JR. Co. (1887) 18 fallacious. It is in truth neither Q. B. Div. 714, 56 L. J. Q. B. 449. more nor less easy to think of a (<) It makes no difference if the corporation as deceiving (or being fraud includes a forgery : Shaw v. deceived) than as having a con- Fort Fhilip Gold 3Iming Co. (1884) senting mind. In no case can a 13 Q. B. D. 103. 86 PERSONS AFFECTED BY TORTS. matter is' handled in our leading authority, the judgment of the Exchequer Chamber delivered by WHles J. in Barwick v. English Joint Stock Bank. " With respect to the question, whether a principal is answerable for the act of his agent in the course of his master's business, and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong" {ii). This has been more than once fully approved in the Privy Council {x), and may now be taken, notwithstanding certain appearances of conflict {y), to have the approval of the House of Lords also (z). 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 (a). But conversely a false and fraudulent statement of a (m) (1867) L. R. 2 Ex. at p. 265. vrMle he is a memlier of the com- (x) Machay v. Commercial Bank pany, he is damnified by the alleged of New Bninm-icJi (1874) L. R. 5 deceit, if at all, solely in that he is P. 0. 412, 43 L. J. P. C. 31 ; Swire liable as a shareholder tocontribute ■V. Francis {Hn) 3 App. Ca. 106, to the company's debts: this liabi- 47 L. J. P. C. 18. lity being of the essence of a share- («/) Addie v. Western Bank of holder's position, claiming com- Scotland (1867) L. R. 1 So. & D. pensation from the company for it 145, dicta at pp. 158, 166, 167. involves him in a new liability to (z) HouldsworthY. City of Glasgow contribute to that compensation Bank (1880) 5 App. Ca. 317. itself, which is an absurd circuity. (a) lb., Lord Selborne at p. 326, But if his liability as a shareholder Lord Hatherley at p. 331 ; Lord has ceased, he is no longer damui- Blackburn's language at p. 339 is fied. Therefore restitution only more cautious, perhaps for the very (by rescission of his contract), not reason that he ivas a party to the compensation, is the shareholder's decision of Barwick v. English remedy as against the company : Joint Stock Bank. Shortly, the though the fraudulent agent re- shareholder is in this dilemma : mains personally liable. PARTNERS. 87 servant made for ends of his own, though in answer to a question of a kind he was authorized to answer on his master's behalf, will not render the master liable in an action for deceit (b). The leading case of Mersey Bocks Trustees v. Gibbs (c) 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 Liability that a firm is answerable for fraudulent misappropriation fraud"o/a^ of funds, and the like, committed by one of the partners partner. 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 partnership business. Where, for example, one of a firm of solicitors receives money to be placed in a specified investment, the firm must answer for his application of it, but not, as a rule, if he receives it with general instructions to invest it for the client at his own discretion (d). Again, the firm is not liable if the facts show that exclusive credit was given to the actual wrong-doer (e) . 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 when the defaulting partner, though (i) Br'Uish Mutual JBanUng Co. 24 Ch. D. 731, with Barman v. V. Charnwood Forest JR. Co. (1887) Johnson, 2 E. & B. 61, 22 L. J". 18 Q. B. Div. 714, 56 L. J. Q. B. Q. B. 297. 449. {e) ExparteEyre,\'Ph..221. See {c) L. R. 1 H. li. 93 (1864-6). more illustrations in my " Digest [d) Partnership Act, 1890, ss. 10 of the Law of Partnership," 5th —12. Cp. Blair v. Brmnley, 2 Ph. ed. pp. 43—46. 354, and Cleather v. Twisden (1883) "88 PERSONS AFFECTED BY TORTS. professing to act on behalf of the firm, misapplies funds or securities merely for his own separate gain. The reasons given are not always free from admixture of the Protean doctrine of " making representations good," which is now, I venture to think, exploded (/). Injuries to 3. There remains to be considered the modification of a ty fault of master's liability for the wrongful act, neglect, or default fellow- q£ jj-g gervant when the person iniured is himself in and servants. -■■ •" about the same master's service. It is a topic far from clear in principle ; the Employers' LiabHity Act, 1880, has obscurely indicated a sort of counter principle, and in- troduced a number of minute and empirical exceptions, or rather limitations of the exceptional rule in question. Conmion That rule, as it stood before the Act of 1880, is that a master's master is not liable to his servant for injury received from immunity. ^^^ ordinary risk of or incident to the service, including acts or defaults of any other person employed in the same service. Our law can show no more curious instance of a rapid modern development. The first evidence of any such rule is in Priestkij v. Fowler [g), decided in 1837, which proceeds on the theory (if on any definite theory) that the master " cannot be bound to take more care of the servant than he may reasonably be expected to do of himself;" that a servant has better opportunities than his master of watching and controlling the conduct of his fellow-servants ; and that a contrary doctrine would lead to intolerable inconvenience, and encourage servants to be negligent. According to this there would be a sort of presumption that the servant sufiered to some extent by (/) I have discussed it in Appen- (^) 3 M. & W. 1. All the case dix K. to " Principles of Contract," actually decided was that a master ■6th ed. p. 711. See now Maddison does not warrant to his servant the v. Alderson (1883) 8 App. Ca. at sufficiency and safety of a carriage p. 473, 51 L. J. Q- B. 737, in which he sends him out. " COMMON EMPLOYMENT." 89 ■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 Massa- chusetts by another way, and in a judgment which is the fountain-head of all the later decisions (A), and has now been judicially recognized in England as "the most complete exposition of what constitutes common employment " (i) . The a»Cepted doctrine is to this effect. Strangers can hold Reason the inaster liable for the negligence of a servant about his Setter hasiness. But in the case where the person injured is him- °'^^^^' self a servant in the same business he is not in the same posi- tion as a stranger. He has of his free will entered into the business and made it his own. He cannot say to the master, Tou shall so conduct your business as not to injure me by want of due care and caution therein. For he has agreed with the master to serve in that business, and his claims on the master 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 we are not here concerned. It was not only adopted by the House of Lords for England, but forced by them upon the reluctant Courts of Scotland to make the jurisprudence of the two countries uniform (k). No such doctrine appears to exist in the law of any other country (A) :Faru!eU v. Boston and Wor- Petrel, '93, P. 320, 323, 1 R. 651, cester Eailroad Corporation, i Met. 653. 49. (/c) See TTilson v. Merry (1868) (j) Sir Francis Jeune in The L. R. 1 Sc. & D. 326. 90 PERSONS AFFECTED BY TORTS, 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, in- cluding 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 both" (/). The ser- The phrase " common employment " is frequent in this not be class of oases. But it is misleading in that it suggests a about the limitation of the rule to circumstances where the iniured same kind •" of work: servant had in fact some opportunity of observing and guarding against the conduct of the negligent one ; a limitation rejected by the Massachusetts Court in Far- well's case, where an engine-driver was injured by the negligence of a switchman (pointsman as we say on English railways) in the same company's service, and afterwards constantly rejected by the English Courts. " When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their com- pensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be in the same or different departments. In a blacksmith's shop, persons working in the same building, at different fires, may be quite indepen- dent of each other, though only a few feet distant. In a (l) Erie 0. J. in Tunney v. Mid- similar language i-aZovellY. Sowell UndM. Co. (1866) L. R. 1 C. P.' at (1876) 1 0. P. D. at p. 167, 45 p. 296 ; Archibald J. used very L. J. C. P. 387. " COMMON EMPLOYMENT." 91 ropewalk several may be at wort 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 lia- bility because the servant has better means of providing for his safety when he is employed in immediate connexion with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself ; and he is not liable in tort, as for the negli- gence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or impHed" (m). there is a al common ect. So it has been said that " we must not over-refine, but provided look at the common object, and not at the common imme- o-eneral diate object" («). 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 {m) Shaw C. J., Farwell v. Bos- ferent result of holding' the master ton, ^c. Corporation, i Met. 49. M. bound, as an implied term of the Sainetelette of Brussels, and M. contract, to insure the ser\'ant Saazet of Lyons, whom he quotes against all accidents in the course [op. cit. p. 140), differ from the of the service, and not due to the current view among Preuch-speak- servant's own fault or vis major. ing lawyers, and agree with Shaw («) Pollock 0. B., Morgan v. VaU 0. J. and our Courts, in referring of Neath M. Co. (1865) Ex. Ch. the whole matter to the contract L. K. 1 Q. B. 149, 155, 35 L. J. between the master and servant ; Q. B. 23. but they arrive at the widely dif- 92 PERSONS AFFECTED BY TORTS. turntable (o). "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 " {p). Relative It makes no difference if the servant by whose negli- rankofthe ,,...,. r- •■ ,i servants gence another is injured is a foreman, manager, or otner r^™'^'^' superior in the same employment, whose orders the other was by the terms of his service bound to obey. The fore- man 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 chain" {q). So the captain em- ployed by a shipowner is a fellow-servant of the crew, and a sailor injured by the captain's negligence has no cause of action against the owner (r). 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 (s), and he is not answerable further {t). {o) See last Bote. (»■) Hedley t. Finkney and Sons' [p) Thesiger L. J., Charles v. S. 8. Co., '92, 1 Q. B. 68, 61 L. J. Taylor (1878) 3 C.P. Div. 492, 498. Q. B. 179, C. A., affd. in H. L., (?) Feltham v. England (1866) '94, A. C. 222, 6 R. Apr. 12. L. R. 2 Q. B. 33, 36 L. J. Q. B. (s) According to some decisions, 14 ; Wilson v. Merry (1868) L. R. 1 which seem on principle doubtful, Sc. & D. 326: see per Lord Caims he is bound only not to furnish at p. 333, and per Lord Colonsay means or resources which are to at p. 345. The French word coZ- his own knowledge defective : Gal- laborateur, which does not mean %A(!j- v. Pt^er (1864) 16 C. B. N. S. " fellow-workman " at all, was at 669, 33 L. J. C. P. 329. And one time absurdly introduced into more lately it has been decided in these oases, it is believed by Lord the Court of Appeal that where a Brougham, and occurs as late as Merry. (t) See next page. " COMMON EMPLOYMENT." 93 Attempts have been made to hold that the servants of Servants sub-contraetors for portions of a general undertaking were oon- for this purpose fellow-servants with the servants directly *™°*°"^- employed by the principal contractors, even without evi- dence that the sub- contractors' work was under the direction or control of the chief contractors. This artificial and unjust extension of a highly artificial rule has fortunately been stopped by the House of Lords (m). Moreover, a stranger who gives his help without reward Volunteer to a man's servants engaged in any work is held to put jg on same 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 {x). This is really a branch of servant seeks to hold his master i'. C. S. Co. (1858) 9 Ex. 223, 23 liable for injury caused by the L. J. Ex. 23, it was said that this dangerous condition of a building duty does not extend to having a ■where he is employed, he must sufficient number of servants for allege distinctly both that the the -work: sed qu. The decision master knew of the danger and was partly on the ground that the that he, the servant, was ignorant plaintiff was in fact well acquainted of it : Griffiths v. London and St. with the risk and had never made Katharine Docks Co. (1884) 13 Q. B. any complaint. Div. 259, 53 L. J. Q. B. 504. Cp. («) Johnson v. Lindsay, '91, A. Thmnas v. Qmrtermaine (1887) 18 C. 371, 65 L. T. 97, overruling Q. B. Div. 685, 66 L. J. Q. B. 340. Viffffett v. fox, 11 Ex. 832, 25 {t) liord Cairns, as above: to L. J. Ex. 188. Cp. Cameron v. same effect Lord Wensleydale, Nystrom (J. C.) '93, A. C. 308, 62 Weems v. Mathieson (1861) 4 Macq. L. J. P. C. 85, 1 R. 362, p. 75, at p. 227 : "All that the master is above. bound to do is to provide machinery («) JPotter v. Faulkner (1861) Ex. fit and proper for the work, and to Ch. 1 B. & S. 800, 31 L. J. Q. B. take care to have it superintended 30, approving Degg v. Midland B. by himseU or his workmen in a fit Co. (1857) 1 H. & N. 773, 26 L. J. and proper manner." In Skipp v. Ex. 174- footing servant. 9'i PERSONS AFFECTED BY TORTS. the doctrine "volenti non fit iniuria," discussed below under the title of General Exceptions. Exception On the other hand, a master who takes an active part in master ^ ^^^ own work is not only himself liable to a servant interferes i^-j^jg,! '^y ]iis neffliffence, but, if he has partners in the in person. *• ^ do?? j. business, makes them liable also. For he is the agent of the firm, but not a servant (y) : the partners are generally answerable for his conduct, yet cannot say he was a fellow- servant of the injured man. Em- Such were the results arrived at by a number of modern Liability authorities, which it seems useless to cite in more detail (s) : '^ ' ■ the rule, though not abrogated, being greatly limited in application by the statute of 1880. This Act (43 & 44 Yict. c. 42) is on the face of it an experimental and empirical compromise between conflicting interests. It was temporary, being enacted only for seven years and the next session of Parliament, and since continued from time to time (a) ; it is confined in its operation to certain speci- fied causes of injury ; and only certain kinds of servants are entitled to the benefit of it, and then upon restrictive conditions as to notice of action, mode of trial, and amount of compensation, which are unknown to the common law, and with a special period of limitation. The efi'ect is that a " workman " within the meaning of the Act is put as against his employer in approximately (not altogether, I think) the same position as an outsider as regards the safe and fit condition of the material instruments, fixed or moveable, of the master's business. He is also entitled to compensation for harm incurred through the negligence of {y) Ashivorth v. Stamvix (1861) 3 gence, pp. 73 — 76, 2nd ed.). E. & E. 701, 30 L. J. Q. B. 183. (a) Further legislation lias been (z) They are ■W'ell collected by expected and attempted, but Mr. Horace Smith (Law of Negli- hitherto (1894) without result. employees' liability act. 95 another servant exercising superintendence, 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 servants, which virtually abolishes the master's immunity as to railway accidents in the ordinary sense of that term. So far as the Act has any principle, it is that of holding the em- ployer answerable for the conduct - of those who are in delegated authority under him. It is noticeable that almost all the litigation upon the Act has been caused either by its minute provisions as to notice of action, or by desperate attempts to evade those parts of its language which are plain enough to common sense. The text of the Act, and references to the decisions upon it, will be found in the Appendix (Note B). On the whole we have, in a matter of general public Eesulting importance and affecting large classes of persons who are tion of neither learned in the law nor well able to procure learned **^® ^'^^• advice, the following singularly intricate and clumsy state of things. Pirst, there is the general rule of a master's liability for his servants (itself in some sense an exceptional rule to begin with). Secondly, the immunity of the master where the person injured is also his servant. Thirdly, in the words of the marginal notes of the Employers' Liability Act, " amendment of law " by a series of elaborate exceptions to that immunity. Fourthly, " exceptions to amendment of law " by pro- visoes which are mostly but not wholly re-statements of the common law. Fifthly, minute and vexatious regulations as to pro- cedure in the eases within the first set of exceptions. PERSONS AFFECTED BY TORTS. It is incredible that such a state of things should nowa- days be permanently accepted either in substance or in form. This, however, is not the place to discuss the principles of the controversy, which I have attempted to do elsewhere {b). In the United States the doctrine laid down by the Supreme Court of Massachusetts in Farwell's case has been very generally followed (c) . Except in Massachu- setts, however, an employer does not so easily avoid responsibility by delegating his authority, as to choice of servants or otherwise, to an intermediate superintendent (d). There has been a good deal of State legislation, but mostly for the protection of railway servants only. Massachusetts has a more recent and more comjprehensive statute based on the English Act of 1880 (e). A collection of more or less detailed reports " on the laws regulating the liability of employers in foreign countries " has been published by the Foreign Office (/). (5) Essays in Jurisprudence and man and Eedfield, ss. 86, 88, 102. Ethics (1882) oh. 5. See for very And see Chicaffo M. i- S. M. Co. v. fuU information and discussion on Ross (1884) 112 U. S. 377. Also a the whole matter the evidence stricter view than ours is taken of taken by the Select Committees of a master's duty to disclose to his the House of Commons in 1876 and servant any non- apparent risks of 1877 (Pari. Papers, H. C. 1876, the employment which are within 372; 1877,285). And see the final his own knowledge: Wheeler v. Report of the Labour Commission, Mason Manufacturing Co. (1883) 135 1894, Part II. Appendix V. (Memo- Mass. 294. randum on Evidence relating to (e) See Mr. McKinney's Article Employers' Liability). in L. Q. R. vi. 189, April 1890, at (c) See Baltimore and Ohio R. R. p. 197. Co. v. Batigh (1893) 149 U. S. 368. (/) Pari. Papers, Commercial, ((?) Cooley on Torts, 560 ; Shear- No. 21, 1886. 97 CHAPTER IV. GENERAL EXCEPTIONS. "We have considered the general principles of liability for Conditions civil wrongs. It now becomes needful to consider the fi^biity ° general exceptions to which these principles are subiect, or ^f";^"'^ . , '- jr r J ' prima jacte in other words the rules of immunity which limit the rules wrongful. of liability. There are various conditions which, when pre- sent, will prevent an act from being wrongful which in their absence would be a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed that no such qualifying 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 restraint in various degrees, from simple arrest to the infliction of death itself, in execution of the process and sentences of the law. Here the harm done, and wilfully done, is justified. There are incidents, again, in every football match which an uninstructed observer might easily take for a confused fight of savages, and grave hurt sometimes ensues to one or more of the players. Yet, so long as the play is fairly conducted according to the rules agreed upon, there is no wrong and no cause of action. For the players have joined in the game of their own free will, and accepted its risks. Not that a man is bound to play football or any other rough game, but if be does he must abide its p. H 98 GENERAL EXCEPTIONS. General and par- ticular ex- ceptions. ordinary chances. Here the harm done, if not justified (for, though in a manner unayoidable, it was not in a legal sense necessary), is nevertheless excused (a). Again, defa- mation is a wrong; but there are certain occasions on which a man may with impunity make and publish untrue statements to the prejudice of another. Again, " sic utere tuo ut alienum non laedas " is said to be a precept of law ; yet there are divers things a man may freely do for his own ends, though he well knows that his neighbour will in some way be the worse for them. 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 particular branch of the subject. So the rule as to " contributory negligence " qualifies liability for negli- gence, and can be understood only in connexion with the special rules determining such liability. Exceptions like those of consent and inevitable accident, on the other hand, are of such wide application that they cannot be conve- niently dealt with under any one special head. This class is aptly denoted in the Indian Penal Code (for the same or similar principles apply to the law of criminal liability) by the name of Greneral Exceptions. And these are the exceptions which now concern us. The following seem to be their chief categories. An action is within certain limits not maintainable in respect of the acts of political power called " acts of state," nor of judicial acts. Execu- (a) Justification seems to be the proper ■word when the harm suf- fered is inseparably incident to the performance of a legal duty or the exercise of a common right ; excuse, when it is but an accident : but I do not know that the pre- cise distinction is always possible to observe, or that anything turns on it. ACTS OF STATE. 99 tive acts of lawful authority form another similar olass. Then a class of acts has to be considered which may he called quasi-]* udicial, and which, also within limits, are protected. Also, there are various oases in which un- qualified or qualified immunity is conferred upon private persons exercising an authority or power specially conferred by law. We may regard all these as cases of privilege in respect of the person or the occasion. After these come exceptions which are more an affair of common right : inevitable accident (a point, strange to say, not clearly free from doubt), harm inevitably incident to the ordinary exercise of rights, harm suffered by consent or under conditions 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. Acts of 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 facto political sovereignty ; (2) more particu- larly (in the words of Sir James Stephen (5) ), "an act injurious to the person or to the property of some person who is not at the time of that act a subject (c) of her (i) History of the Criminal Law, under the protection of EngKsh ij_ 61. law: therefore an act of state in (c) This includes a friendly alien this sense cannot take place in living' in " temporary allegiance" England in time of peace, h2 tion 100 GENERAL EXCEPXrONS. Majesty ; whicli act is done by any representative of her Majesty's authority, civil or military, and is either pre- viously sanctioned, or subsequently ratified by her Majesty" (such sanction or ratification being, of course, expressed in the proper manner through responsible ministers). General Our courts of justice profess themselves not competent exemp- 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 which municipal courts administer ; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make" (d). A series of decisions of the Indian Supreme Courts and the Privy Council have applied this rule to the dealings of the East India Company with native States and with the property of native princes (e). In these cases the line between public and private property, 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 municipal courts deriving their authority from the British Government of the act of annexation itself or anything incident to it. In such a case the only remedy is by petition of right to the Crown. And the effect is the same if the act is originally an excess of authority, but is afterwards ratified by the Crown. [d] Secretary of State in Council [e) See Doss v. Secretary of State of India v. Kamachee Jjoye Sahaia for India in Council (1875) 19 Eq. (1859) 13 Moo. P. C, 22, 75. 509, and the case last cited. ACTS OF STATE. 101 " The leading case on this subject Is Biivon v. Den- man (/). 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 Russell, 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 ((/). 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 an act of state. Courts of law are established for the express purpose of limiting public authority in its conduct towards indi- viduals. If one British subject puts another to death or destroys his property by the express command of the King, that command is no protection to the person who executes it unless it is in itself lawful, and it is the duty of the proper courts of justice to determine whether it is lawful or not " : as, for example, when the Court of King's Bench decided that a Secretary of State had no power to issue general warrants to search for and seize papers and the like {h). Another question which has been raised in the colonies Local and Ireland, but which by its nature cannot come before a^ains^t an English court for direct decision, is how far an action viceroy or is maintainable against an officer in the nature of a viceroy (/) (1847) 2 Ex. 167. [h) Entick T. Carrini/ton, 19 St. iff) Vol. ii. p. 64. Tr. 1043. 102 GENERAL EXCEPTIONS. Power to exclude aliens. Acts of foreign powers. during his term of office, and in tlie local courts of the territory in which he represents the Crown. It has heen held by the Judicial Committee that the Lieutenant- Grovernor of a colony is not exempt from suit in the courts of that colony for a debt or other merely private cause of action («) ; and by the Irish courts, on the other hand, that the Lord-Lieutenant is exempt from being sued in Ireland for an act done in his official or "politic" capacity {j). 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 {k). It seems doubtful whether admission to temporary allegiance in one part of the British Empire would confer any right to be admitted to another part. There is another quite distinct point of jurisdiction in connexion with which the term " act of state " is used. A sovereign prince or other person representing an inde- pendent power is not liable to be sued in the courts of this country for acts done in a sovereign capacity ; and this even if in some other capacity he is a British subject, as was the case with the King of Hanover, who remained an English peer after the personal union between the (j) Bill V. Bigge (1841) 3 Moo. V. C. 465 ; dissenting from Lord Mansfield's dictum in Mostyn v. Fabrigas, Cowp. 172, that "locally during his government no civil or criminal sciion w£l lie against Hm ; ' ' though it may be that he is privi- leged from personal arrest where arrest would, by the local law, be part of the ordinary process. [j] Luhy V. IFodehouse, 17 Ir. C. L. E. 618 ; Sullivan t. Spencer, Ir. R. 6 C. L. 173, following Tandy v. Westmoreland, 27 St. Tr. 1246. These cases go very far, for the Lord Lieutenant was not even called on to plead his privilege, but the Court stayed proceedings against him on motion. As to the eflfect of a local Act of inde m nity, see Fhillips v. Eyre (1870) Ex. Ch. L. R. 6 Q. B. 1. (Ic) Musgrave v. Chung Teeong Toy, '91, A. C. 272, 60 L. J. P. C. 28. ACTS OF STATE. 103 Crowns of England and Hanover was dissolved (l) . This rule is included in a wider one which not only extends beyond the subject of this work, but belongs to inter- national as much as to municipal law. It has been thus expressed by the Court of Appeal : " As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sove- reign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its Courts, any of its territorial juris- diction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador (m), though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction" («). If we may generalize from the doctrine of our own Summary, courts, the result seems to be that an act done by the authority, previous or subsequent, of the government of a sovereign state in the exercise of de facto sovereignty (o), is not examinable at all in the courts of justice of any other state. So far forth as it affects persons not subject to the government in question, it is not examinable in the (t) Duke of Brunswich T. King (o) I have not met with a dis- of Sanover (1843-4) 6 Beav. 1, 57 ; tinct statement of this qualifica- afSrmed in the House of Lords, tion in existing authorities, but it 2 H. L. C. 1. is e-s-idently assumed by them, and (»») What if cattle belonging to is necessary for the preservation a foreign ambassador were dis- of every state's sovereign rights trained damage feasant ? It -would withinitso-wn jurisdiction. Plainly seem he could not get them back the command of a foreign govern- without submitting to the juris- ment would be no answer to an diction. action for trespass to land, or for (») The FarUment Beige (1880) the arrest of an alleged offender 5 P. D. 197, 214. against a foreign law, within the body of an English county. ;104 GEITERAL EXCEPTIONS. ordinary courts of that state itself. If and so far as it affects a subject of the same state, it may be, and in England it is, examinable by the courts in their ordinary jurisdiction. In most Continental countries, however, if not in all, the remedy for such acts must be sought before a special tribunal (in France the Conseil d'Etat: the preliminary question whether the ordinary court or the Conseil d'Etat has jurisdiction is decided by the Tribunal des Conflits, a peculiar and composite court) {p). 2. — Judicial Acts. Judicial Next as to judicial acts. The rule is that " no action acta. . . Will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice " {q). And the exemption is not confined to judges of superior courts. It is founded on the necessity of judges being independent in the exercise of their office, a reason which appHes equally to all judicial proceedings. But in order to establish the exemption as regards proceedings in an inferior court, the judge must show that at the time of the alleged wrong- doing some matter was before him in which he had jurisdiction (whereas in the case of a superior court it is for the plaintiff to prove want of jurisdiction) ; and the act complained of must be of a kind which he had power to do as judge in that matter. Thus a revising barrister has power by statute (r) " to order any person to be removed from his court who shall interrupt the business of the court, or refuse to obey his {p) Law of May 24, 1872. But effect of many previous decisions, the principle is ancient, and the old The authorities were lately re- law is still cited on various points. viewed and confirmed hy the C. A. (?) Scott V. Stmtsfield (1868) L. Anderson v. Gorrie (1894), not yet E. 3 Ex. 220, 37 L. J. Ex. 155, reported, which confirms and sums up the (r) 28 & 29 Vict. c. 36, s. 16. JUDICIAL ACTS. 105 lawful orders in respect of the same " : but it is an action- able trespass if under colour of this power he causes a person to be removed from the court, not because that person is then and there making a disturbance, but because in the revising barrister's opinion he improperly suppressed facts within his knowledge at the holding of a former court (s). The like law holds if a county court judge commits a party without jurisdiction, and being informed of the facts wliich show that he has no jurisdiction {t) ; though an inferior judge is not liable for an act which on the facts apparent to him at the time was within his jurisdiction, but by reason of facts not then shown was in truth outside it («(). A judge is not liable in trespass for want of jurisdic- tion, unless he knew or ought to have known of the defect; and it lies on the plaintiff, in every such case, to prove that fact (x). And the conclusion formed by a judge, acting judicially and in good faith, on a matter of fact which it is within his jurisdiction to determine, cannot be disputed in an action against him for anything judicially done by him in the same cause upon the footing of that con- clusion (y). Allegations that the act complained of was done " mali- ciously and corruptly," that words were spoken " falsely and maliciously," or the like, will not serve to make an action of this kind maintainable against a judge either of a superior (z) or of an inferior (a) court. (a) Willis V. Maclachlan (1876) 1 C. B. N. S. 523, 31 L. J. C. P. Ex. D. 376, 45 L. J. Q. B. 689. 158 (an action against the Vice- {t) HouUen v. Smith (1850) 14 Chancellor of the University of Q. B. 841, 19 L. J. Q. B. 170. Cambridge), and authorities there (m) Lowther y. Earl of Radnor cited. (1806) 8 East 113, 118. (z) Fray v. Blackburn (1862) 3 (x) GaUer v. Salket (1839) 3 B. & S. 676. Moo. P. 0. 28, 78. («) Scott v. SiansfieU (1868) L. (y) Kemp v. Neville (1861) 10 E. 3 Ex. 220, 37 L. J. Ex. 155. 106 GENERAL EXCEPTIONS. Liability by statute in special cases. Judicial acts of persons not judges. There are two cases in whieli by statute an action does or did lie against a judge for misconduct in his office, namely, if he refuses to grant a writ of habeas corpus in vacation time {b), and if he refused to seal a bill of exceptions (c). 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 constituted in accordance with military law and usage {(l). It is also applied to a limited extent to arbi- trators, and to any person who is in a position like an arbitrator's, as having been chosen by the agreement of parties to decide a matter that is or may be in difference between them. Such a person, if he acts honestly, is not liable for errors in judgment (e). He would be liable for a corrupt or partisan exercise of his office ; but if he really does use a judicial discretion, the rightness or competence of his judgment cannot be brought into question for the purpose of making him personally liable. The doctrine of our courts on this subject appears to be fully and uniformly accepted in the United States (/) . (S) 31 Car. II. c. 2, s. 9. («) 13 Edw. I. (Stat. Westm. 2) c. 31, cf. Blackstone, iii. 372. [d) This may be collected from sucb authorities as Dawkins v. LordSolceby (1875) L. R. 7 H. L. 744, 45 L. J. Q. B. 8; Daukins T. Prince Edward of Saxe Weimar (1876) 1 Q. B. D. 499, 45 L. J. Q. B. 567, which hcwever go to some extent on the doctrine of " privileged communications," a doctrine wider in one sense, and more special in another sense, than the rule now in question. Partly, also, they deal with acts of autho- rity not of a judicial kind, which will be mentioned presently. («) Pai^pa V. nose (1872) Ex. Oh. L. E. 7 C. P. 625, 41 L. J. C. P. 187 (broker authorized by sale note to decide on quality of goods) ; Tharsis Sulphur Co. v. Loftus (1872) L. E. 8 0. P. 1, 42 L. J. 0. P. 6 (average adjuster nominated to ascertain proportion of loss as be- tween ship and cargo) ; Stevenson V. Watson (1879) 4 0. P. D. 148, 48 L. J. 0. P. 318 (architect nomi- nated to certify what was due to contractor) . (/) Oooley on Torts, Ch. 14. EXECUTIVE ACTS. 107 3. — Ex^ecutirc Acts. As to executive acts of public ofBcers, no legal wrong Executive can be done by the regular enforcement of any sentence or process of law, nor by the necessary use of force for pre- serving the peace. It wiU be observed that private persons are in many cases entitled, and in some bound, to give aid and assistance, or to act by themselves, in executing the law; and in so doing they are similarly protected {g). Were not this the rule, it is evident that the law could not be enforced at aU. But a public officer may err by going beyond his authority in various ways. When this happens (and such cases are not uncommon), there are distinctions to be observed. The principle which runs through both common law and legislation in the matter is that an officer is not protected from the ordinary consequence of unwar- ranted acts which it rested with himself to avoid, such as using needless violence to secure a prisoner ; but he is protected if he has only acted in a manner in itself reasonable, and in execution of an apparently regular warrant or order which on the face of it he was bound to obey {h). 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 juris- diction at all in the subject-matter, so that the proceedings are, as it is said, "coram non judice," the exemption ceases {i). A constable or officer acting under a justice's warrant is, however, specially protected by statute, not- withstanding any defect of jurisdiction, if he produces {a) The details of this subject same 'way in the United States. belong to criminal law. Cooley on Torts, 459—462. (h) Mayor of London Y. Cm (1867) ' (i) The case of The Marshalsea, L. E. 2 H. L. at p. 269 (in opinion 10 Co. Rep. 76 a ; Clark v. Woods of judges, per Willes J.). The (1848) 2 Ex. 395, 17 L. J. M. 0. law seems to be understood in the 189. 108 GENERAL EXCEPTIONS. the warrant on demand {k). 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 sub- stitutes for their various requirements the one rule that proceedings against any person for any act done in execu- tion of a statutory or other public duty shall be commenced within six months (/). As to a mere mistake of fact, such as arresting the body or taking the goods of the wrong person, an officer of the law is not excused in such a case. He must lay hands on the right person or property at his peril, the only excep- tion being on the principle of estoppel, where he is misled by the party's own act (w) . Acts of Acts done by naval and miKtary officers in the execution militar^ or intended execution of their duty, for the enforcement of officers. ^}jQ icnlea 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 regula- tions 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 oflEender against military law (being a person subject to that law) before a (i) 24 Geo. II. 0. 44, s. 6. (Ac- (m) See Glasspooh v. Young (1829) tion lies only if a demand in 9 B. & C. 696; Balme v. Sutton ■writing for perusal and copy of Ex. Ch. (1833) 9 Bing. 471 ; Dun- the warrant is refused or neglected ston v. Faterson (1857) 2 C. B. N. S. for six days.) 495, 26 L. J. C. P. 267 ; and other [I) 56 & 57 Vict. e. 61. There avithorities collected in Fisher's are subsidiary but not unimportant Digest, ed. Mews, sub tit. Sheriff, provisions as to costs. NAVAl, AND MILITARY DISCIPLINE. 109 court-martial without probable cause (w). How far the orders of a superior officer justify a subordinate who obeys them as against third persons has never been fully settled. But the better opinion appears to be that the subordinate is in the like position with an officer executing an 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 if the particular order is not necessarily or manifestly unlawful (o). The same principles apply to the exemption of a person Of other acting under the orders of any public body competent in authori- 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 (p). The principles of English law relating to the protection Indian of judicial officers and persons acting under their orders xvill. of have in British India been declared by express enactment ^^^''• (ActXYIII. of 1850). («) Johnstone v. Sutton (1786-7) criminal responsibility in sucli cases, Ex. Ch. 1 T. E. 510, 548 ; affirmed cf. Stephen, Dig. Cr. Law, art. 202, in H. L. ibid. 784, 1 Bro. P. C. 76, Hist. Cr. Law, i. 200—206. IR. R. 257. The Ex. Ch. thought {p) Bradlaugh v. (7osse« (1884) the action did not He, but the de- 12 Q. B. D. 271, 53 L. J. Q. B. fendant was entitled to judgment 209. As to the limits of the privi- even if it did. No reasons appear lege, see per Stephen J. at p. 283. to have been given in the Honse of As to the power of a colonial Lords. legislative assembly over its own (o) See per Willes J. in Keighly members, see Barton v. Taylor (J. V. Bell (1866) 4 F. & E. at p. 790. C. 1886) U App. Ca. 197, 55 L. J. In time of war the protection may P. C. 1 . perhaps be more extensive. As to discretion. 110 GENERAL EXCEPTIONS. 4. — Quasi-judicial Acts. Acts of Divers persons and todies are called upon, in the judicial management of public institutions or government of voluntary 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 col- leges in the universities over their fellows and scholars, and of the General Council of Medical Education over registered medical practitioners {q). Often the authority of the quasi- judicial body depends on an instrument of foundation, the provisions of which are binding on all persons who accept benefits under it. Such are the cases of endowed schools and religious congregations. And the same principle appears in the constitution of modern in- corporated companies, and even of private partnerships. Further, a quasi- judicial authority may exist by the mere convention of a number of persons who have associated themselves for any lawful purpose, and have entrusted powers -of management and discipline to select members. The committees of most clubs have by the rules of the club some such authority, or at any rate an initiative in presenting matters of discipline before the whole body. The Inns of Court exhibit a curious and unique example of great power and authority exercised by voluntary un- incorporated societies in a legally anomalous manner. Their powers are for some purposes quasi- judicial, and yet they are not subject to any ordinary jurisdiction (r). {q) SeeAUiuttY. General Council, General Council, ^-c. (1890) 25 Q. B. ^e. (1889) 23 Q. B. Div. 400, 58 Div. 90, 59 L. J. Q. B. 475. L. J. Q. B. 606 ; Leeson v. General (r) See Neate v. Denman (1874) Council, #c. (1889) 43 Ch. Div. 366, 18 Eq. 127. 59 L. J. Ch. 233; Fartridi/e v. QUASI- JUDICIAL POWERS. Ill The general rule as to quasi-judicial powers of this class Rules of is that persons exercising them are protected from civil justice and liability if they observe the rules of natural justice, and l^^^^ also the particular statutory or conventional rules, if any, i^ ^'^J' which may prescribe their course of action. The rules of observed, natural justice appear to mean, for this purpose, that a man is not to be removed from oiSce or membership, or otherwise dealt with to his disadvantage, without having fair and sufficient notice of what is alleged against him, and an opportunity of making his defence ; and that the decision, whatever it is, must be arrived at in good faith with a view to the common interest of the society or institution concerned. If these conditions be satisfied, a court of justice will not interfere, not even if it thinks the decision was in fact wrong (s). If not, the act com- plained 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 (t). These principles apply to the expulsion of a partner from a private firm (s) Indenvick v. Snell (1850) 2 "domestic tribunal" on the ground Mao. & G-. 216 (removal of a direc- of interest, AlUnson v. General tor of a company) ; Bawkins v. Council, ^-c, '94, 1 Q. B. 750, 9 E. Antrobus (1881) 17 Ch. Div. 615 (March) 205, C. A. (expulsion of a member from a {t) Fisher v. Kcane (1878) 11 Ch. club) ; cf. 13 Ch. D.352; Cartridge D. 353, 49 L. J. Ch. 11 (a club V. General Council, ^e.,r\ai& {q)\s^^ case, no notice to the member); page, although no notice was Labouchere v. WharncUffe (1879) 13 given, the council honestly think- Ch. D. 346 (the Hke, no suflBcient ing they had no option. In the inquiry or notice to the member, case of a club an injunction -will calling and proceedings of general be granted only in respect of the meeting irregular) ; DeanY. Bennett member's right of property, there- (1870) 6 Ch. 489, 40 L. J. Ch. 452 fore where the club is proprietary (minister of Baptist chapel under the only remedy is in damages : deed of settlement, no sufficient Baird v. Wells (1890) 44 Ch. D. notice of specific charges either to 661, 59 li. J. Ch. 673. As to the minister or in calling special objections against u, member of a meeting). 112 GENERAL EXCEPTIONS. Absolute discre- tionary powers. Questions whether duty judicial or minis- terial : Ashbj/ V. White, ^-c. where a power of expulsion is conferred by the partnership contract (m). It may be, however, that by the authority of Parliament (or, it would seem, by the previous agreement of the party to be affected) a governing or administrative body, or the majority of an association, has power to remove a man from office or the like without anything in the nature of judicial proceedings, and without showing any cause at all. Whether a particular authority is judicial or absolute must be determined by the terms of the particular instrument creating it {v). On the other hand there may be question whether the duties of a particular office be quasi- judicial, or merely ministerial, or judicial for some purposes and ministerial for others. It seems that at common law the returning or presiding officer at a parliamentary or other election has a judicial discretion, and does not commit a wrong if by an honest error of judgment he refuses to receive a vote («) : but now in most cases it will be found that such officers are under absolute statutory duties (y), which they must perform at their peril. (u) BUsset v. Daniel (1853) 10 Ha. 493 ; Wood v. Woad (1874) L. K. 9 Ex. 190, 43 L. J. Ex. 190. Without an express power in the articles a partner cannot be ex- pelled at all. («.') E. g. Dean v. Bennett, note (<) last page ; Fisher v. Jaclcson, '91, 2 Ch. 84, 60 L. J. Ch. 482 (power judicial) ; Sayman v. Governors of Mugby School (1874) 18 Eq. 28, 43 L. J. Ch. 834 (power absolute). (x) Tozer V. Child (1857) Ex. Ch. 7 E. & B. 377, 26 L. J. Q. B. 151, explaining Ashby v. White, Ld. Eaym. 938, and in 1 Sm. L. C. ; and see the special report of Holt's judgment published in 1837 an'd re- ferred to in Tozer v. Child. 'There is some difference of opinion in America, see Cooley on Torts, ,413, 414. («/) 6 & 7 Vict, ^. 18, s. 82. As to presiding officers imder the Ballot Act, 1872, Bickering v. James (1873) L. E. 8 C. P. 489, 42 L. J. C. P. 217; Ackers y. Howard (\?,8e) 16 Q. B. D. 739, 55 L. J. Q. B. 273. DOMESTIC AUTHORITY. 113 5. — Parental and quasi-parental Authority. Thus much of private quasi-judicial authority. There Authority are also several kinds of authority in the way of summary and per- force or restraint which the necessities of society require to ^™^™j °'"' be exercised by private persons. And such persons are protected in exercise thereof, if they act with good faith and in a reasonable and moderate manner. Parental authority (whether in the hands of a father or guardian, or of a person to whom it is delegated, such as a school- master) is the most obvious and universal instance (s). It is needless to say more of this here, except that modern civilization has considerably diminished the latitude of what judges or juries are likely to think reasonable and moderate correction (a). Persons having the lawful custody of a lunatic, and Ofousto- -.-,, . ...rtn. . 1 dians of those acting by their direction, are justmed m using such lunatics, reasonable and moderate restraint as is necessary to prevent °' the lunatic from doing mischief to himself or others, or required, according to competent opinion, as part of his treatment. This may be regarded as a quasi-paternal power; but I conceive the person entrusted with it is bound to use more diligence in informing himself what treatment is proper than a parent is bound (I mean, can be held bound in a court of law) to use in studying the best method of education. The standard must be more (z) Blaokstone,i.452. Seemodem credited by Blaokstone (i. 445) and examples collected in Addison on is not recognized at this day ; but Torts, 7th ed. p., 14S. A school- as a husband and wife cannot in master's delegated authority is not any case sue one another for assault bounded by the walls of the school: in a civil court, this does not con- Cleary v. Booth, '93, 1 Q. B. 465, cern us. As to imprisonment of a 62 L. J. M. 0. 87, 6 E. 263. wife by a husband, Reg. v. Jackson, (a) The ancient right of a hus- '91, 1 Q. B. 671, 60 L. J. Q. B. 346, band to beat his wife moderately 0. A. (F. N. B. 80 r. 239 A.) was dis- P. I 114 GENERAL EXCEPTIONS. strict as medical science improves. A century ago lunatics were beaten, confined in dark rooms, and tlie like. Sucli treatment could not be justified now, thougb then it would bave been unjust to bold tbe keeper criminally or civilly liable for not baving more tban tbe current wisdom of experts. In tbe case of a drunken man, or one deprived of self-control by a fit or other accident, tbe use of mode- rate restraint, as well for bis own benefit as to prevent him from doing mischief to others, may in tbe same way be justified. 6. — Authorities of Necessity. Of the The master of a merchant ship has by reason of necessity master of. ,,..,. a ship. the right of using force to preserve order and disciplme for the safety of the vessel and tbe persons and property on board. Thus, if be has reasonable cause to believe that any sailor or passenger is about to raise a mutiny, he may arrest and confine him. The master may even be justified in a case of extreme danger in inflicting punishment with- out any form of inquiry. But "in all cases which will admit of the delay proper for inquiry, due inquiry should precede the act of punishment ; and .... tbe party charged should have tbe benefit of that rule of universal justice, of being heard in his own defence" {h). In fact, when tbe immediate emergency of providing for the safety and discipline of the ship is past, tbe master's authority becomes a quasi- judicial one. There are conceivable cir- cumstances in which the leader of a party on land, such as an Alpine expedition, might be justified on tbe same prin- ciple in exercising compulsion to assure tbe common safety (5) Lord Stowell, The Agincourt on the subject. For further refer- (1824) 1 Hagg. 271, 274. This ences see Maude and PoUock's judgment is the classical authority Merchant Shipping, 4th ed. i. 127. ACTS AUTHOEIZED BY STATUTE. 115 of tlie paity. But such a case, though not impossible, is not likely to occur for decision. 7. — Damage incident to authorized Acts. Thus far we have dealt with cases where some special Damage relation of the parties justifies or excuses the intentional dentally doing of things which otherwise would be actionable ^^^^ ^f wrongs. We now come to another and in some respects a ^o* '™- • • • -r% w lawful, more interesting and difficult category. Damage suffered in consequence of an act done by another person, not for that intent, but for some other purpose of his own, and not in itself unlawful, may for various reasons be no ground of action. The general precept of law is commonly stated to be " Sic utere tuo ut alienum non laedas." If this were literally and universally applicable, a man would act -at his peril whenever and wherever he acted otherwise than as the servant of the law. Such a state of things would be intolerable. It would be impossible, for example, to build or repair a wall, unless in the middle of an uninhabited plaiu. But the precept is understood to be subject to large exceptions. Its real use is to warn us against the abuse of the more popular adage that "a man has a right to do as he likes with his own" (c), which errs much more dangerously on the other side. There are limits to what a man may do with his own ; and if he does that which may be harmful to his neighbour, it is his business to keep within those limits. Neither the Latin nor the vernacular maxim wiU help us much, how- ever, to know where the line is drawn. The problems raised by the apparent opposition of the two principles (c) Cf. Graius (D. 60, 17, de div. reg. 55) : " Nullus videtor dolo faoere, qui 8U0 iure utitur." i2 116 GENERAL EXCEPTIONS. must be dealt with each on its own footing. We say apparent ; for the law has not two objects, but one, that is, to secure men in the enjoyment of their rights and of their due freedom of action. In its most general form, therefore, the question is, where does the sphere of a man's proper action end, and aggression on the sphere of his neighbour's action begin ? Damage The solution is least diflScult for the lawyer when the from exe- . , , . . . . , , oution of question has been decided m prmoiple by a sovereign •works. legislature. Parliament has constantly thought fit to direct or authorize the doing of things which but for that direction and authority might be actionable wrongs. Now a man cannot be held a wrong-doer in a court of law for acting in conformity with the direction or allowance of the supreme legal power in the State. In other words " no action will lie for doing that which the Legislature has authorized, if it be done without negligence, although it does occasion damage to any one." The meaning of the qualification will appear immediately. Subject thereto, " the remedy of the party who suffers the loss is confined to recovering such compensation " (if any) " as the Legis- lature has thought fit to give him " (d) . Instead of the ordinary question whether a wrong has been done, there can only be a question whether the special power which has been exercised is coupled, by the same authority that created it, with a special duty to make compensation for incidental damage. The authorities on this subject are voluminous and discursive, and exhibit notable differences of opinion. Those differences, however, turn chiefly on the application of admitted principles to particular facts, ((?) Lord Blackburn, Geddis v. 7 App. Ga,. a.t -p. 2S3 ; Merset/ Docks Froprietors of JBmm Seservoir (1878) Trustees v. Giiis (1864-6) L. E. 1 3 App. Ca. at p. 455 ; Caledonian H. L. at p. 112. S. Co. V. Wallcer's Trustees (1882) ACTS AUTHOEIZED BY STATUTE. 117 and on the construction of particular enactments. Thus it has teen disputed whether the compensation given hy statute to persons who are " injuriously affected " by authorized railway works, and by the same statutes de- prived of their common-law rights of action, was or was not co-extensive with the rights of action expressly or by implication taken away ; and it has been decided, though not without doubts and weighty dissent, that in some cases a party who has suffered material loss is left without either ordinary or special remedy (e) . Apart from the question of statutory compensation, it is ^° action settled that no action can be maintained for loss or incon- avoidable venience which is the necessary consequence of an autho- rized thing being done in an authorized manner. A person dwelling near a railway constructed under the authority of Parliament for the purpose of being worked by locomotive engines cannot complain of the noise and vibration caused by trains passing and repassing in the ordinary course of traffic, however unpleasant he may find it (/) ; nor of damage caused by the escape of sparks from the engines, if the company has used due caution to prevent such escape so far as practicable (g). So, where a corporation is (c) Hammersmith S. Co. v. Brand must have forgotten this authority (1869) L. E. i H. L. 171, 38 L. J. when he said Id the Court of Appeal Q. B. 265; A.-G. y. Metropolitan that Sex v. Fease was wrongly R. Co., '94, 1 Q. B. 384, 9 E. Sept. decided (5 Q. B. D. 601). 252, C.A. {g) Vaughan v. Taff Vale E. Co. if) Hammersmith B. Co.y. Brand, (1860) Ex. Ch. 5 H. & N. 679, 29 last note, confirming and extending L. J. Ex. 247. See below in Rex V. Pease (1832) 4 B. & Ad. 30, Ch. XII. So of noise made by where certain members and ser- pumps in the authorized sinking of vants of the Stockton and Dar- a shaft near a man's land or house: lington Eailway Company were Harrison v. Southwark and Vauxhall indicted for a nuisance to persons Water Co., '91, 2 Ch. 409, 60 L. J. using a high road near and parallel Ch. 630. to the railway. Lord Bramwell 118 GENERAL EXCEPTIONS. empowered to make a river navigable, it does not thereby become bound to keep tbe bed of the river clear beyond •what is required for navigation, though an incidental result of the navigation works may be the growth of weeds and accumulation of silt to the prejudice of riparian owners (/«). Care and But in Order to secure this immunity the powers required conferred by the Legislature must be exercised without of ^^t™'^^ negligence, or, as it is perhaps better expressed, with cretionary -judgment and caution (i). For damasre which could not powers. JO \ / n have been avoided by any reasonably practicable care on the part of those who are authorized to exercise the power, there is no right of action. But they must not do needless harm ; and if they do, it is a vn-ong against which the ordinary remedies are available. If an authorized railway comes near my house, and disturbs me by the noise and vibration of the trains, it may be a hardship to me, but it is no wrong. For the railway was authoriijed and made in order that trains might be run upon it, and without noise and vibration trains cannot be run at all. But if the company makes a cutting, for example, so as to put my house in danger of falling, I shall have my action ; for they need not bring down my house to make their cutting. They can provide support for the house, or otherwise conduct their works more carefully. "When the company (A) Grackmll v. Corporation of resort on the construction of the Thetford (1869) L. E. 4 C. P. 629, particular statute there in question, 38 L. J. C. P. 353, decided partly is Geddis v. Froprietors of £ann on the ground that the corporation Reservoir, 3 App. Ca. 430. Craclc- were not even entitled to enter on neWs case seems just on the line ; land which did not belong to them cp. Biscoe v. 6. E. M. Co. helow. to remove weeds, cfeo. , for any pur- ( j) Per Lord Truro, L. % N. W. poses beyond those of the naviga- U. Co. v. Bradley (1851) 3 Mac. & tion. A rather similar case, but Gr. at p. 341. decided the other way in the last AUTHORIZED WORKS. 119 can oonstruot its works without injury to private rights, it is in general bound to do so"(^). Hence there is a material distinction between oases where the Legislature " directs that a thing shall at all events be done" (/), and those where it only gives a discretionary power with choice of times and places. Where a discretion is given, it must be exercised with regard to the common rights of others. A pubHo body which is by statute empowered to set up hospitals within a certain area, but not empowered to set up a hospital on any specified site, or required to set up any hospital at all, is not protected from liability if a hospital established under this power is a nuisance to the neighbours (m). And even where a particular thing is required to be done, the burden of proof is on the person who has to do it to show that it cannot be done without creating a nuisance («) . A railway company is authori^ied to acquire land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house (o). But a statutory power to carry cattle by railway, and provide station yards and other buildings for the reception of cattle and other things to be carried (without specification of particular places or times) is incidental to the general purposes for which the railway was authorized, and the use of a piece of land as a cattle yard under this power, though such as woidd be a {k) Biscoe v. G. E. B. Co. (1873) (n) Attorney -General v. Gaslight 16 Eq. 636. and Coke Co. (1877) 7 Ch. D. 217, (?) 6 App. Ca. 203. 221, 47 L. J. Oh. 534. {m) Metropolitan Asylum District (o) Majmohun Bose v. East India V. Bill (1881) 6 App. Ca. 193 ; M. Co. (High Court, Calcutta), 10 op. Rapier v. London Tramways Co., Ben. L. R. 241. Qu. whether this '93, 2 Ch. 588, 63 L. J. Ch. 36, be consistent with the case next 2 R. 448. cited. 120 GENERAL EXCEPTIONS. nuisance at common law, does not give any right of action to adjoining occupiers {p). Sucli a case falls within the priQciple not of Metropolitan Asylum District v. Hill, hut of Hex V. Pease. A gas company was authorized by statute to have its pipes laid under certain streets, and was required to supply gas to the inhabitants. The vestry, being charged by statute with the repair of the streets, but not required or authorized to use any special means, used steam rollers of such weight that the company's pipes were often broken or injured by the resulting pressure through the soil. It was held that, even if the use of such rollers was in itself the best way of repairing the streets in the interest of the ratepayers and the pubhc, the act of the vestry was wrongful as against the gas company, and was properly restrained by injunction {q). " An Act of Parliament may authorize a nuisance, and if it does so, then the nuisance which it authorizes may be lawfully committed. But the authority given by the Act may be an authority which falls short of authorizing a nuisance. It may be an authority to do certain works provided that they can be done without causing a nuisance, and whether the authority falls within that category is again a question of construction. Again the authority given by Parliament may be to carry out the works with- out a nuisance, if they can be so carried out, but in the last resort to authorize a nuisance if it is necessary for the construction of the works" (r). (p) London and Brighton M. Co. 414. The Court also relied, but V. Truman (1885) 11 App. Ca. 45, only by way of confirmation, on 55 L. J. Ch. 354, reversing' tbe certain special Acts dealing -with, decision of the Court of Appeal, the relations between the vestry 29 Ch. Div. 89. and the company. See 15 Q. B. D. [q) Gas Light and Coke Co. v. at p. 6. Vestry of St. Mary Abbott's (1885) (/) Bowen L. J., 29 Ch. D. at 15 Q. B. Div. 1, 54 L. J. Q. B. p. 108. INEVITABLE ACCIDENT. 121 An authority accompanied by compulsory powers, or to be exercised concurrently with authorities ejusdem generis which aie so accompanied, will, it seems, be generally treated as absolute ; but no single test can be assigned as decisive (s) . 8. — Inevitable Accident. In the cases we have just been considering the act by Inevitable which the damage is caused has been specially authorized, resulting Let us now turn to the class of cases which diSer from f™™!"^" lul act. these in that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then and there; or (it is perhaps better to say) which he may do without breaking any positive law. We shall assume from the first that there is no want of reasonable care on the actor's part. For it is undoubted that if by failure in due care I cause harm to another, however in- nocent my intention, I am liable. This has already been noted in a general way {t). No less is it certain, on the other hand, that I am not answerable for mere omission to do anything which it was not my specific duty to do. It is true that the very fact of an accident happening is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the " consummate care " of an expert using special precaution in a matter of special risk or importance is not always successful. Slight negligence may be divided by a very fine line from unsuccessful diligence. But the distinction is real, and we have here to do only with the (s) See especially Lord Black- Brighton S. Co. v. Truman. bum's opinion in London and {(} P. 32, above. 122 GENEEAL EXCEPTIONS. class of cases where the facts are so given or determined as to exclude any negligence whatever. Conditiona The question, then, is reduced to this, whether an action of the inquiry, lies against me for harm resulting by inevitable accident from an act lawful in itself, and done by me in a reason- able and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead ; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed. On prin- It may seem to modern readers that only one solution accident of the problem thus stated is possible, or rather that there UabiUty! is no problem at all (m). No reason is apparent for not accepting inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law ; moreover we do not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case admitting of doubt, that his neighbour harmed him by design or negligence. And one cannot see why a man is to be made an insurer of his neighbour against harm which (m) This, at any rate, is the view p. 256, 46 L. J. Ex. 174; Solmes of modern juries ; see Nichols v. T. Mather, L. R. 10 Ex. at p. 262. Marslmd (1875) L. E. 10 Ex. at INEVITABLE ACCIDENT. (by our hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am usiug in a reasonable manner and with reasonable care, hurts my neighbour by pure accident, it is not apparent why I should be liable more than if the stick had been in another man's hand (v). If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is pri- marily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Roman law, and in our own criminal law by the forfeiture of the offending object which had moved, as it was said, to a man's death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man's act is the apparent cause of mischief, the burden of proof is on him to show that the consequence was not one which by due diligence he could have prevented (x). But so does (and must) the burden of proving matter of justi- fication or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed. (») Trespass for assaiilt by strik- (1844) 1 C. & K. 358 (tefore Rolfe ing tlie plaintiflE with a stick B.). This, if it could be accepted, thrown, by the defendant. Plea, would prove more than is here not guilty. The' jury were di- contended for. But it is evidently rected that, in the absence of a rough and ready summing-up evidence for what purpose the given without reference to the defendant threw the stick, they books. might conclude it was for a proper (x) Shaw C. J. would not con- purpose, and the striking the cede even this in the leading Mas- plaintifE was a mere accident for sachusetts case of Brown v. Kendall, which the defendant was not 6 Cush. at p. 297. answerable : AWerson v. Waistell 123 124 GENERAL EXCEPTIONS. Apparent conflict of authori- ties. We believe that our modern law supports the view now indicated as the rational one, that inevitable accident is not a ground of liability. But there is a good deal of appearance of authority in the older books for the contrary proposition that a man must answer for all direct conse- quences of his voluntary acts at any rate, or as Judge 0. W. Holmes (y) has put it "acts at his peril." Such seems to have been the early Germanic law (2), and such was the current opinion of English lawyers until the begin- ning of this century, if not later. On the other hand, it will be seen on careful examination that no actual decision goes the length of the dicta which embody this opinion. In almost every case the real question turns out to be of the form of action or pleading. Moreover, there is no such doctrine in Roman or modern Continental juris- prudence (a) ; and this, although for us not conclusive or even authoritative, is worth considering whenever our own authorities admit of doubt on a point of general principle. And, what is more important for our purpose, the point has been decided in the sense here contended for by Courts (y) See on the whole of this matter Mr. Justice Holmes's chap- ter on "Trespass and Negligence," and Mr. Wigmore's articles in Harv. Law Rev. vii. 315, 383, 441, where materials are fully collected. (z) Heusler, Inst, des deutschen Privatrechts, ii. 263 ; LI. Hen. Primi, o. 88 § 6, 90 § 11 ; seep. 129, below. {a) ' ' Inpunitus est qui sine culpa et dolo malo casu quodam damnum eommittit." Gai. 3. 211. Paulus indeed says (D. 9. 2, ad legem Aquiliam, 45, § 4), " Si defendendi mei causa lapidem in adyersarium misero, sed non eum sed prae- tereuntem percussero, tenebor lege Aquilia ; ilium euim solum qui vim infert ferireconceditur." But various explanations of this are possible. Perhaps it shows what kind of cases are referred to by the otherwise unexplained dictum of Ulpian in the preceding fragment, " in lege Aquilia et levissima culpa venit." Paulus himself says there is no iniuria if the master of a slave, meaning to strike the slave, accidentally strikes a free man : D. 47. 10, de iniuriis, 4. Accord- ing to the current English theory of the 16th — 18th centuries an action on the case would not He on such facts, but trespass vi et armis would. AMERICAN CASES ON ACCIDENT. 125 of the liigliest authority in the United States. To these decisions we shall first call attention. In The Nitro-glycerine Case (b) the defendants, a firm of American carriers, received a wooden case at New York to be carried y^^ ^n^^, to California. " There was nothing in its appearance cal- gMjoenne cuiated to awaken any suspicion as to its contents," and in fact nothing was said or asked on that score. On arrival at San Francisco it was found that the contents (which "had the appearance of sweet oil") were leaking. The case was then, according to the regular course of business, taken to the defendants' offices (which they rented from the plaintiff) for examination. A servant of the defen- dants proceeded to open the case with a mallet and chisel. The contents, being in fact nitro-glycerine, exploded. All the persons present were killed, and much property destroyed and the building damaged. The action was brought by the landlord for this last-mentioned damage, including that suffered by parts of the building let to other tenants as well as by the offices of the defendants. Nitro-glycerine had not then (namely, in 1866) become a generally known article of commerce, nor were its pro- perties well known. It was found as a fact that the defendants had not, nor had any of the persons concerned in handling the case, knowledge or means of knowledge of its dangerous character, and that the case had been dealt with " in the same way that other cases of similar appear- ance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business when ignorant of their con- tents." The defendants admitted their liability as for (b) 16 WaU. 624 (1872). 126 GENERAL EXCEPTIONS. waste as to the premises occupied by them (which in fact they repaired as soon as possible after the accident), but disputed it as to the rest of the building. Doctrine of Su- preme Court ; no liability for acci- dental result of lawful act without negli- gence. The Circuit Court held the defendants were not further liable than they had admitted, and the Supreme Court of the United States affirmed the judgment. It was held that in the first place the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage : and next, that without such knowledge in fact and without negligence they were not liable for damage caused by the accident (c). "No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own." Brown v. Kendall (Massa- chusetts). The Court proceeded to cite with approval the case of Brown v. Kendall in the Supreme Court of Massachu- setts id). There the plaintiff's and the defendant's dogs were fighting : the defendant was beating them in order to separate them, and the plaintiff looking on. "The defendant retreated backwards from before the dogs, striking them as he retreated ; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe (c) The plaintifE's proper remedy- would have been against the con- signor who despatched the explosive without infoiining the carriers of its nature. See Zyell v. Ganga Dai (1875) Indian Law Hep. 1 AU. 60. {d) 6 Cush. 292 (1850). AMERICAN CASES ON ACCIDENT. 127 injury." The action was trespass for assault and battery. It was held that the act of the defendant in itself " was a lawful and proper act which he might do by proper and safe means ; " and that if " in doing this act, usiag due care and all proper precautions necessary to the exigency of the case to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident, or was iuYoluntary and unavoidable (e), and therefore the action would not lie." All that cotdd be required of the defen- dant was " the exercise of due care adapted to the exigency of the case." The rule in its general form was thus ex- pressed : "If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom." There have been like decisions in the Supreme Courts of Other New Tork (/) and Connecticut. And these rulings ap- cases : pear to be accepted as good law throughout the United op^nio^jn States (g). The general agreement of American authority Castle y. and opinion is disturbed, indeed, by one modern case in the (N. Y.). Court of Appeal of New York, that of Castle v. Duryee Qi) . But the conflicting element is not in the decision itself, nor in anything necessary to it. The defendant was the colonel of a regiment of New York militia, who at the time of the cause of action were firing blank cartridge under his immediate orders in the course of a review. The plaintiff was one of a crowd of spectators who stood in front of the firing line and about 350 feet from it. [e] The consequence w&s involun- {/) B"a>-wyv.i)M«?ap, Lalor 193, tary or rather tmmtended, though cited 15 Wall. 539 ; Morris y. Plait, the act itself was volimtary ; and it 32 Conn. 75. •was also unavoidable, i. e. not pre- {g) Cooley on Torts, 80. rentable by reasonable diligence. [h] 2 Keyes 169 (1866). 128 GENERAL EXCEPTIONS. Upon one of the discharges the plaintiff was wounded by a bullet, which could be accounted for only by one of the men's pieces having by some misadventure been loaded with ball cartridge. It appeared that one company had been at target practice an hour or two before, and that at the end of the practice arms had been examined in the usual way («'), and surplus ammunition collected. More- over, arms had again been inspected by the commanding officers of companies, in pursuance of the colonel's orders, before the line was formed for the regimental parade. The plaintiff sued the defendant in an action "in the nature of trespass for an assault." A verdict for the plaintiff was ultimately affirmed on appeal, the Court being of opinion that there was evidence of negligence. Knowing that some of the men had within a short time been in pos- session of ball ammunition, the defendant might well have done more. He might have cleared the front of the line before giving orders to fire. The Court might further have supported its decision, though it did not, by the cases which show that more than ordinary care, nay " consummate caution " (J), is required of persons dealing with dangerous weapons. The Chief Judge added that, as the injury was the result of an act done by the defendant's express command, the question of negligence was immaterial. But this was only the learned judge's individual opinion. It was not necessary to the decision, and there is nothing to show that the rest of the Court agreed to it (k). (») It -will be remembered that M. & S. 198. this was in the days of muzzle- {k) The reporter adds this Big- loaders. A Uke accident, however, mficant note : ' ' The Court did happened not many years ago at not pass upon the first branch of an Aldershot field day, fortunately the case, discussed by the Chief without hurt to any one. Judge, as to the question of the (j) Erie C. J. obiter, in JPotier v. general liability of the command- Faullmer, 1 B. & S. at p. 805, 31 ing ofacer." L. J. Q. B. 30 ; Dixon v. Bell, 6 INEVITABLE ACCIDENT. 129 "We may now see wKat the English authorities amount English to. They have certainly been supposed to show that ties: cases inevitable accident is no excuse when the immediate result and'^shoot- of an act is complained of. Erskine said a century ago in ™&- his argument in the celebrated case of The Dean of St. Asaph (l) (and he said it by way of a familiar illustration of the difference between criminal and civil liability) that " if a man rising in his sleep walks into a china shop and breaks everything about him, his being asleep is a complete answer to an indictment for trespass (m), but he must answer in an action for everything he has broken." And Bacon had said earlier to the same purpose, that " if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course : but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party's mind and will " (n). Stronger examples could not well be propounded. For walking in one's sleep is not a voluntary act at all, though possibly an act that might have been prevented : and the practice of archery was, when Bacon wrote, a positive legal duty under statutes as recent as Henry YIII.'s time, though on the other hand shooting is an extra-hazardous act (o). We find the same statement about accidents in shooting at a mark in the so-called laws of Henry I. (p), and in the arguments of {I) 21 St. Tr. 1022 (a.d. 1783). as showing, like Erskine, the (m) Would an indictment ever average legal mind of his time. lie for simple trespass? I know (o) 0. W. Holmes 103. not of any authority that it would, {p) C. 8S § 6. " Si quis in ludo though the action of trespass ori- sagittandi vel alicuius exeroitii ginally had, and retained in form iaoulo vel huiusmodi casu aliquem down to modem times, a pubUc oocidat, reddat eum ; legis enim and penal character. est, qui inscienter peccat, scienter («) Maxims of the Law, Beg. 7, emendet." C. 90 § 11 adds an following the dictum of Rede J. in English form of the maxim : " et 21 Hen. VII. 28. We cite Bacon, qui hrecht ungewealdes, bete not as a writer of authority, but P. K 130 GENEEAL EXCEPTIONS. counsel in a case in tlie Tear-Book of Edward lY., where the general question was more or less discussed (q). Brian (then at the bar) gave in illustration a view of the law exactly contrary to that which was taken in Brown v. Kendall. But the decision was only that if A. cuts his hedge so that the cuttings ipso invito fall on B.'s land, this does not justify A. in entering on B.'s land to carry them off. And by Choke, C. J., it is said, not that (as Brian's view would require) A. must keep his thorns from falling on B.'s land at all events, but that " he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out." TTeaverY. Another case usually cited is Weaver \. Ward{r). The plaintiff and the defendant were both members of a train- band exercising with powder, and the plaintiff was hurt by the accidental discharge of the defendant's piece. It is a very odd case to quote for the doctrine of absolute lia- bility, for what was there holden was that ia trespass no man shall be excused, " except it may be judged utterly without his fault ; " and the defendant's plea was held bad because it only denied intention, and did not properly bring before the Court the question whether the accident was inevitable. A later case (s), which professes to follow [q) 6 Edw. IV. 7, pi. 18 ; 0. W. inevitable accident is no excuse Holmes 85 ; of. 21 Hen VII. 27, even when the act is one of lawful pi. 5, a case of trespass to goods self-defence. But then Raymond's which does not really raise the opinion is a dissenting one ; a. c. question. nom. Bessey v. Olliott, T. Raym. ()•) Hob. 134, A.D. 1616. 467; being given in the former (s) Bickeson v. Watson, Sir T. place alone and without explana- Jones 205, a.d. 1682. Lambert v. tion, it has apparently been some- T. Raym. 421, a case of times taken for the judgment of false imprisonment in the same the Court. At most, therefore, period, cites the foregoing autho- his illustrations are evidence of the rities, and Raymond's opinion notions current at the time, certainly assumes the view that INEVITABLE ACCIDENT. 1^1 Weaver v. Ward, really departs from it in holding that " unayoidahle necessity " must be shown to make a valid excuse. This in turn was apparently followed in the next century, but the report is too meagre to be of any value {t). All these, again, are shooting cases, and if they occurred at this day the duty of using extraordinary care with dangerous things would put them on a special footing. In the celebrated squib case they are cited and more or less relied upon iii). It is not clear to what extent the judges intended to press them. According to Wilson's report, inevitable accident was allowed by all the judges to be an excuse. But Blaokstone's judgment, according to his own report, says that nothing but " inevitable necessity " will serve, and adopts the argument of Brian in the case of the cut thorns, mistaking it for a judicial opinion ; and the other judgments are stated as taking the same line, though less explicitly. For the decision itself the question is hardly material, though Blackstone may be supposed to represent the view which he thought the more favourable to his own dissenting judgment. His theory was that liability in trespass (as distinguished from an action on the case) is unqualified as regards the immediate conse- quences of a man's act, but also is limited to such conse- quences. Then comes Leame v. Bray («), a comparatively modern Leamey case, in which the defendant's chaise had run into the [t] Underwood v. Eewson, 1 law of negligenee was then quite Strange 596, A.B. 1723 (defendant undeveloped. was uncocking a gun, plaintiff («) Scott v. Shepherd (1773) 2 W. looking on). It looks very like Bl. 892, 3 Wils. 403. contributory negligenoe, or at any {x) 3 East 693 (a.d. 1803), op. rate voluntary exposure to tte risk, Preface to 7 R. B. at p. vii. on the plaintifE's part. But the k2 132 GENERAL EXCEPTIONS. Cases ■where exception allowed. plaintiff's curricle on a dark night. The defendant was driving on the wrong side of the road ; which of itself is want of due care, as every judge would now tell a jury as a matter of course. The decision was that the proper form of action was trespass and not case. Grrose J. seems to have thought inevitable accident was no excuse, but this was extra-judicial. Two generations later, in Rylands v. Fletcher, Lord Cranworth inclined, or more than inclined, to the same opinion (y). Such is the authority for the doctrine of strict liability. Yery possibly more dicta to the same purpose might be collected, but I do not think anything of importance has been left out (z). Although far from decisive, the weight of opinion conveyed by these various utterances is certainly respectable. On the other hand we have a series of cases which appear even more strongly to imply, if not to assert, the contrary doctrine. A. and B. both set out in their vessels to look for an abandoned raft laden with goods. A. first gets hold of the raft, then B., and A.'s vessel is damaged by the wind and sea driving B.'s against it. On such facts the Court of King's Bench held in 1770 that A. could not maintain trespass, "being of opinion that the original act of the defendants was not unlawful" («). Quite early in the century it had been held that if a man's horse runs away with him, and runs over another man, he ((/) (1868) L. K. 3 H. L. at p. 341. (z) Sometimes the case of James V. Campbell (1832) 5 C. & P. 372, is cited in this connexion. But not only is it a Nisi Prius case with nothing particular to recommend it, but it is irrelevant. The facts there alleged were that A. in a quarrel with B . struck 0. Nothing shows that A. would have been justified or excused in striking B. And if the blow he intended was not lawful it was clearly no excuse that he struck the wrong man (p. 29 above, and see E. v. Latimer (1886) 17 Q. B. D. 359, 55 L. J. M. C. 135). {a) Davis v. Saunders, 2 Ohitty 639. INEVITABLE ACCIDENT. 133 is not even prima facie a trespasser, so that under the old rules of pleading it was wrong to plead specially in justifi- cation {b). Here however it may be said there was no voluntary act at all on the defendant's part. In Wakeman V. RoUnson, a modern running-down case (c), the Court conceded that " if the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie ; " thinking, however, that on the facts there was proof of negligence, they refused a new trial, which was asked for on the ground of mis- direction in not putting it to the jury whether the accident was the result of negligence or not. In 1842 this declara- tion of the general rule was accepted by the Court of Queen's Bench, though the decision again was on the form of pleading {d). Lastly, we have two decisions well within our own mimes v. time which are all but conclusive. In Holmes v. Mather (e) "^^ ^' the defendant was out with a pair of horses driven by his groom. The horses ran away, and the groom, being unable to stop them, guided them as best he could ; at last he failed to get them clear round a corner, and they knocked down the plaintiff. If the driver had not attempted to turn the corner, they would have run straight into a shop-front, and (it was suggested) would not have touched the plaintiff at all. The jury found there was no negligence. Here the driver was certainly acting, for he was trying to turn the horses. And it was argued, on the authority of the old eases and dicta, that a trespass had (J) Gibbons v. Pepper, 1 Lord {d) Ball v. Fearnley (1842) 3 Eaym. 38. Q. B. 919, 12 L. J. Q. B. 22. The [e] 1 Bing. 213 (1823). The line between this and Gibbons v. argument for the defendant seems Fepper is rather fine, to have been very well reasoned. («) L. E, 10 Ex. 261, 44 L. J. Ex. 176 (1875). 134 GENEEAL EXCEPTIONS. Stanley v. Fowell. Conclu- sion. been committed. The Court refused to take this view, but said nothing about inevitable accident in general. " For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid" (/). Thus it seems to be made a question not only of the defendant being free from blame, but of the accident being such as is incident to the ordinary use of public roads. The same idea is expressed in the judgment of the Exchequer Chamber in By lands v. Fletcher, where it is even said that all the cases m which inevitable accident has been held an excuse can be ex- plained on the principle "that the circumstances were such as to show that the plaintiff had taken that risk upon himself " {g) . More lately, in Stanley v. Powell {h), Denman J. came, on the English authorities alone, to the conclusion above maintained, namely that, where negligence is negatived, an action does not lie for injury resulting by accident from another's lawful act. These decisions seem good warrant for saying that the principle of The Nitro-glycerine Case and Brown v. Kendall is now part of the common law in England as well as in America. All this inquiry may be thought to belong not so much to the head of exceptions from liability as to the fixing of the principles of liability in the first instance. But such an inquiry must in practice always present itself (/) Bramwell B. at p. 267. (g) L. K. 1 Ex. at pp. 280, 287. But see per Lord Halsbury in Smith V. £aker, '91, A. C. 325, 337, 60 L. J. Q. B. 683. (h) '91, 1 Q. B. 86, 60 L. J. Q. B. 52. THswaaaehootingcase (a pellet glanced from a bough, and wounded the plaintiff's eye). A point might have been made for the plaintiEE, but apparently -was not, on the " extra-hazardous " character of fire-arms. EXERCISE OF RIGHTS. 135 ■under tlie form of determining whether the particular cir- cumstances exclude liahility for an act or consequence which is at first sight wrongful. The same remark ap- plies, to some extent, to the class of oases which we take next iQ order. m exercise common 9. — Exercise of common Rights. "We have just left a topic not so much ohscure in itself Immuniiy as obscured by the indirect and vacillating treatment of it of ia our authorities. That which we now take up is a well ^s^^^ settled one in principle, and the difficulties have been only in fixing the limits of application. It is impossible to carry on the common affairs of life without doing various things which are more or less likely to cause loss or inconvenience to others, or even which obviously tend that way ; and this iu such a manner that their tendency cannot be remedied by any means short of not acting at all. Competition in business is the most obvious example. If John and Peter are booksellers in the same street, each of them must to some extent diminish the custom and profits of the other. So if they are shipowners employing ships in the same trade, or brokers in the same market. So if, instead of John and Peter, we take the three or four railway companies whose lines oifer a choice of routes from London to the north. But it is needless to pursue ex- amples. The relation of profits to competition is matter of common knowledge. To say that a man shall not seek profit in business at the expense of others is to say that he shall not do business at all, or that the whole constitution of society shall be altered. Like reasons apply to a man's use of his own land in the common way of husbandry, or otherwise for ordinary and lawful purposes. In short, life could not go on if we did not, as the price of our own free 136 GENERAL EXCEPTIONS. action, abide some measure of inconvenience from the equal freedom of our neighbours. In these matters veniam petim usque damusque vicissim. Hence the rule of law that the exercise of ordinary rights for a lawful purpose and in a lawful manner is no wrong even if it causes damage («'). It is chiefly in this class of cases that we meet with the phrase or formula damnum sine iniuria ; a form of words which, like many other Latia phrases and maxims, is too often thought to serve for an explanation, when in truth it is only an abridgment or memoria technica of the things to be explained. It is also of doubtful elegance as a technical phrase, though in general Latin literature iniuria no doubt had a sufSciently wide meaning (A) . In English usage, however, it is of long standing [1). (i) A.-G. V. Tomline (1880) 14 Ch. Div. 58, 49 L. J. Ch. 377, is a curious case, tut does not make any real exception to this. It shows that ( 1) the Crown as owner of foreshore has duties for the pro- tection of the land, though not enforceable duties ; (2) those duties, where the Crown rights have be- come vested in a subject, are laid upon and maj be enforced against that subject. [k) XJlpian wrote (D. 9. 1, si quadrupes, 1,5 3); "Pauperies est damnum sine iniuria facientis datum, nee enim potest animal iniuria fecisse, quod sensu caret." This is in a very special context, and is far from warranting the use of "damnum sine iniuria'' as a common formula. Being, how- ever, adopted in the Institutes, 4, 9, pr. (with the unidiomatio variant " iniuriam fecisse "), it pro- bably became, through Azo, the origin of the phrase now current. In Gains 3.211 (on the lex Aquilia) we read •' ' Iniuria autem occidere intellegitur cuius dolo aut culpa id accident, nee ulla alia lege dam- num quod sine iniuria datur repre- henditur." This shows that " damnum sine iniuria dare " was a correct if not a common phrase : though it could never have for Gaius or XJlpian the wide meaning of " harm [of any kind] which gives no cause of action. " " Dam- num sine iniuria ' ' standing alone as a kind of compound noun, ac- cording to the modem use, is hardly good Latin. (I) Bracton says, fo. 221a: "Si quis in fundo proprio construat aliquod molendinum, et sectam BTiam et aliorum vicinorum sub- trahat vicino, faoit vicino damnum et non iniuriam." " Dampuum sine iniuria ' ' occurs iu 7 Ed. III. 65, pi. 67, "damnum absque iniuria " iu 11 Hen. IV. 47, pi. 2] (see below). TRADE COMPETITION. 137 A classical illustration of the rule is given by a case in Tho case the Year-Book of Henry lY., which has often been cited ceate^' in modern books, and which is still perfectly good autho- grammar rity (/»). The action was trespass by two masters of the Grammar School of Gloucester against one who had set up a school in the same town, whereby the plaintiffs, having been wont to take forty pence a quarter for a child's schooling, now got only twelve pence. It was held that such an action could not be maintained. '■'■Damnum^' said Hankford J., " may be absque iniuria, as if I have a mill and my neighbour build another mill, whereby the profit of my mill is diminished, I shall have no action against him, though it is damage to me .... but if a miHer dis- turbs the water from flowing to my mill, or doth any nuisance of the like sort, I shall have such action as the law gives." If the plaintiffs here had shown a franchise in themselves, such as that claimed by the Universities, it might have been otherwise. A case very like that of the mills suggested by Hank- Case of ford actually came before the Court of Common Pleas a generation later (w), and Newton 0. J. stated the law in much the same terms. Even if the owner of the ancient mill is entitled to sue those who of right ought to grind at his miU, and grind at the new one, he has not any remedy against the owner of the new mill. "He who hath a free- hold in the viU may build a mill on his own ground, and this is wrong to no man." And the rule has ever since (m) Hil. 11 Hen. IV. 47, pi. 21 poral court. The plaintifi tried to (a.d. 1410-11). In the course of set up a jwaii franchise as holding argument the opinion is thrown an ancient office in the gift of the out that the education of children Prior of Lantone, near Gloucester is a spiritual matter, and therefore {sic : prohably Llauthony is meant) . the right of appointing a school- («) 22 Hen. VI. 14, pi. 23 (a.d. master cannot be tried by a tem- 1443). The school case is cited. 138 GENERAL EXCEPTIONS. teen treated as beyond question. Competition is in itself no ground of action, whatever damage it may cause. A trader can complain of his rival only if a definite exclusive right, such as a patent right, or the right to a trade mark, is infringed, or if there is a wilful attempt to damage his business by injurious falsehood ("slander of title") or acts otherwise unlawful in themselves. Underselling is not a wrong, though the seller may purposely sell some article at unremunerative prices to attract custom for other articles; nor is it a wrong even to ofPer advantages to customers who will deal with oneself to the exclusion of a rival (o). " To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract their business to his own shop, would be a strange and impossible counsel of perfection" (j?). "To draw a line between fair and unfair competition, between what is reasonable and unrea- sonable, passes the power of the Courts. Competition exists where two or more persons seek to possess or to enjoy the same thing ; it follows that the success of one must be the failure of another, and no principle of law enables us to interfere with or to moderate that success or that failure so long as it is due to mere competition " (g) . There is "no restriction imposed by law on competition by one trader with another with the sole object of benefiting himself "(r). Digging Another group of authorities of the same class is that ^^^man's which establishes " that the disturbance or removal of the own land. (o) Mogul Steamship Co. v. at p. 615. McGregor (1889-91) 23 Q. B. Div. (q) Fry L. J., ibid, at pp. 625, 598, afBrmed in H. L., '92, A. C. 626. 25. [r) Lord Hannen, n. t. in H. L. (p) Bowen L. J., 23 Q. B. Div. '92, A. C. at p. 69. USE OF one's own LAND. 139 soil in a man's own land, thougli it is the means (by process of natural percolation) of drying up his neighhour's spring or well, does not constitute the invasion of a legal right, and will not sustain an action. And further, that it makes no difference whether the damage arise by the ■water percolating away, so that it ceases to flow along channels through which it previously found its way to the spring or well ; or whether, having found its way to the spring or well, it ceases to be retained there" (s). The leading cases are Acton v. Blundell {t) and Chasemore v. Richards («). In the former it was expressly laid down as the governing principle " that the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such right he intercepts or drains off the water collected from underground springs in his neigh- bour's well, this inconvenience to his neighbour falls within the description of damnum absque iniuria which cannot become the ground of an action." In this case the defendant had sunk a deep pit on his own land for mining purposes, and kept it dry by pumping in the usual way, with the result of drying up a well which belonged to the plaintiff, and was used by him to supply his cotton mill. Chasemore v. Richards carried the rule a step further in Chase- two directions. It settled that it makes no difference if Richards. the well or watercourse whose supply is cut off or dimi- nished is ancient, and also (notwithstanding considerable doubt expressed by Lord Wensleydale) that it matters not whether the operations carried on by the owner of the surface are or are not for any purpose connected with the (s) "Pel Cm., Ballaeorkish Mining (t) 12 M. & W. 324, 13 L. J. Co. V. Harrison (1873) L. R. 5 P. C. Ex. 289 (1843). at p. 61, 43 L. J. P. C. 19. («) 7 H. L. 0. 349, 29 L. J. Ex. 81 (1859). 140 GENERAL EXCEPTIONS. Other applica- tions of same principle. use of the land itseli. The defendants In the cause were virtually the Local Board of Health of Croydon, who had sunk a deep well on their own land to obtain a water supply for the town. The making of this well, and the pumping of great quantities of water from it for the use of the town, intercepted water that had formerly found its way into the river Wandle by underground channels, and the supply of water to the plaintiff's ancient mill, situated on that river, was diminished. Here the defendants, though using their land in an ordinary way, were not using it for an ordinary purpose. But the House of Lords refused to make any distinction on that score, and held the doctrine of Acton v. Blundell applicable [x) . The right claimed by the plaintiff was declared to be too large and indefinite to have any foundation in law. No reasonable limits could be set to its exercise, and it could not be reconciled with the natural and ordinary rights of land- owners. These decisions have been generally followed in the United States (y). There are many other ways in which a man may use his own property to the prejudice of his neighbour, and yet no action lies. I have no remedy against a neighbour who opens a new window so as to overlook my garden : on the other hand, he has none against me if, at any time before he has gained a prescriptive right to the light, I build a wall or put up a screen so as to shut out his view from that window. But the principle in question is not confined to the use of property. It extends to every exercise of lawful discretion in a man's own affairs. A tradesman [x) Cp., as to the distinction be- tween the ' ' natural user ' ' of land and the maintenance of artificial •works, Murdman v. N. E. It. Co. (1878) 3 C. r. Div. at p. 174, 47 L. J. C. P. 368 ; and further as to theliniits of "natural user," Bal- lard y. Tomlinson (1885) 29 Ch. Div. 115, 54 L. J. Ch. 454. (y) Cooley on Torts 580. MALICIOUS EXERCISE OP RIGHTS ? 141 may depend in great measure on one large customer. ' This person, for some cause of dissatisfaction, good or bad, or without any assignable cause at all, suddenly with- draws his custom. His conduct may be unreasonable and ill-conditioned, and the manifest cause of great loss to the tradesman. Yet no legal wrong is done. And such matters could not be otherwise ordered. It is more toler- able that some tradesmen should suffer from the caprice of customers than that the law should dictate to customers what reasons are or are not sufficient for ceasing to deal with a tradesman. But there are cases of this class which are not so obvious. Sogers v. A curious one arose at Calcutta at the time of the Indian jjftu. Mutiny, and was taken up to the Privy Council. Eajendro Dutt and others, the plaintiffs below, were the owners of the Underwriter, a tug employed in the navigation of the Hoogly. A troopship with English troops/arrived at the time when they were most urgently needed. For towing up this ship the captain of the tug asked an extraordinary price. Failing to agree with him, and thinking his demand extortionate, Captain Rogers, the Superintendent of Marine (who was defendant in the suit), issued a general order to officers of the Government pilot service that the Underwriter was not to be allowed to take in tow any vessel in their charge. Thus the owners not only failed to make a profit of the necessities of the Government of India, but lost the ordiuary gains of their business so far as they were derived from towing ships in the charge of Government pilots. The Supreme Court of Calcutta held that these facts gave a cause of action against Captain Rogers, but the Judicial Committee reversed the decision on appeal (z). The plaintiffs had not been prejudiced in any definite legal right. No one was bound to employ their (2) Sogers v. Baje.zdn Dutt, 8 Moo. I. A. 103. 142 GENERAL EXCEPTIONS. Whether malice material in these tug, any more than they were hound to take a fixed sum for its services. If the Grovernment of India, rightly or wrongly, thought the terms unreasonahle, they might decHne to deal with the plaintiffs both on the present and on other occasions, and restrain puhlio servants from dealing with them. " The G-overnment certainly, as any other master, may lawfully restrict its own servants as to those whom they shall employ under them, or co-operate with in performing the services for the due performance of which they are taken into its service. Supposing it had been believed that the Underwriter was an ill-found vessel, or in any way unfit for the service, might not the pilots have been law- fully forbidden to employ her until these objections were removed ? Wordd it not indeed have been the duty of the Government to do so ? And is it not equally lawful and right when it is honestly believed that her owners will only render their services on exorbitant terms ?"(*). It must be taken that the Court thought the order com- plained of did not, as a matter of fact, amount to an obstruction of the tug-owners' common right of offering their vessel to the non-ofiicial public for employment. Conduct might easily be imagined, on the part of an officer in the defendant's position, which would amount to this. And if it did, it would probably be a cause of action (y). In this last case the harm sufiered by the plaintiff in the Court below was not only the natural, but apparently the intended consequence of the act complained of. The defendant however acted from no reason of private hos- tility, but in the interest (real or supposed) of the public service. "Whether the averment and proof of malice, in other words that the act complained of was done with the [x] 8 Moo. I. A. at p. 134. (y) See per Holt C. J. in V. Hickenngill, 11 East at pp. 675, 676, U E. R. 274 n. MALICIOUS EXERCISE OF EIGHTS ? 143 sole or oHef intention of causing harm to the plaintiff as a private enemy (s), would make any difference in cases of this class, does not appear to he finally decided hy any autho- rity in our law. In Rogers v. Rajcndro Dutt the Judicial Committee expressly declined to say what the decision woxild be if this element were present. In Chasemore v. Richards the statement of facts (by an arbitrator) on which the case proceeded expressly negatived any intention to harm the plaintiff. Lord Wensleydale thought (appa- rently with reluctance) that the principle of regarding the presence or absence of such an intention had found no place ^ our law (a) ; and partly for that reason he would have iJEed to draw the line of unquestionable freedom of use at purposes connected with the improvement of the land itself; but he gave no authority for his statement. At the same time it must be allowed that he expressed the general sense of English lawyers {b), and his opinion has now been followed {bb). The lioman lawyers on the other hand allowed that Roman " animus vicino noeendi " did or might make a difference. In a passage cited and to some extent relied on (in the scantiness, at that time, of native authority) in Acton v. (z) It is very difficult to say (a) 7 H. L. C. at p. 388. But what " malice," as a term of art, see per Fry L. J., 23 Q. B. Div. at really means in any one of its gene- p. 625, on the hypothetical case of rally similar but not identical uses ; " competition used as a mere engine hut I think the gloss here given is of malice." sufficiently correct for the matter (b) See Sir W. Markhy's " Ele- in hand. At aU events, the inten- ments of Law," s. 239. tion of causing disadvantage to the [bb) Corporation of Bradford v. plaintiff as a. competitor in busi- Ficlcles, '94, 3 Ch. 63 (North J)., ness by acts in themselves lawful, where, although the plaintiff suc- and done in the course of that ceeded on the ground that the business, does not make such acts defendant had broken a statutory wrongful : Mogul Steamship Co. v. prohibition, the question of the McGregor (1889) 23 Q. B. Div. 598, defendant's good faith was dis- H. L., '92, A. C. 25, 61 L. J. Q. cussed and held immaterial, and the B. 295. plaintiff lost half his costs. See at p. 71. ' ' animus vicino noeendi." 144 GENERAL EXCEPTIONS. hlundell, we read : " Denique Mareellus scribit, cum eo qui in suo fodiens vioini fontem avertit, nihil posse agi, nee de dolo actionem : et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faoiendi id fecit" (c). And this view is followed by recognized authorities in the law of Scotland, who say that an owner using his own land must act " not in mere spite or malice, in aemulationem mcini" {d). There seems on principle to be much to recommend it. Certainly it would be no answer to say, as one is inclined to do at first sight, that the law can regard only intentions and not motives. For in some cases the law does already regard motive as dis- tinct from proximate intention, as in actions for malicious prosecution, and in the question of privileged communica- tions in actions for libel. And also this is really a matter of intention. Ulterior motives for a man wishing ill to his neighbour in the supposed case may be infinite : the purpose, the contemplated and desired result, is to do such and such ill to him, to dry up his well, or what else it may be. If our law is to be taken as Lord Wensleydale assumed it to be, its policy must be rested simply on a balance of expediency. Animus vicino nocendi would be very difficult of proof, at all events if proof that mis- chief was the only purpose were required (and it would hardly do to take less) : and the evil of letting a certain kind of churlish and unneighbourly conduct, and even deliberate mischief, go without redress (there being no reason to suppose the kind a common one), may well be thought less on the whole than that of encouraging vexatious claims. In Roman law there is nothing to show whether, and how far, the doctrine of Ulpian and Mar- eellus was found capable of practical application. I cannot leam that it has much effect in the law of Scotland. It (c) D. 39, 3, de aqua, 1, § 12 [d] Bell's Principles, 966 (re- (Ulpian). ferred to by Lord Wensleydale). LEAVE AND LICENCE. 145 seems proper, However, to point out that there is really no positive English authority on the matter. Again our law does not in general recognize any exclu- Cases of .. iTx similar sive right to the use of a name, personal or local, i may names. use a name similar to that which my neighhour uses — and that whether I inherited or found it, or have assumed it of my own motion — so long as I do not use it to pass o£E my wares or business as being his. The fact that inconvenience arises from the similarity will not of itself constitute a legal injury (e), and allegations of pecuniary damage will not add any legal effect. "Tou must have in our law injury as well as damage " (/). 1 0. — Leave and Licence : Volenti non fit iniuria. Harm suffered by consent is, within limits to he men- Consent or J. II (, . .T , . rrii • t 1 acceptance tioned, not a cause oi cxvii action, ihe same is true where of risk it is met with imder conditions manifesting acceptance, '^'^'"^ ^^ on the part of the person suffering it, of the risk of that kind of harm. The maxim by which the rule is commonly brought to mind is " Volenti non fit iniuria." " Leave and licence " is the current English phrase for the defence raised in this class of cases. On the one hand, however, volenti non fit iniuria is not universally true. On the other hand, neither the Latin nor the English formula provides in terms for the state of things in which there is not (c) See Burgess v. Burgess (1853) ^o. (1885) 30 Ch. D. 156, 55 L. J. 3 D. M. G. 896, 22 L. J. Ch. 675, Ch. 31. Cp. Montgomery y. Thomp- a classical case; Dii, Boulay v. Bu son, '91, A. C. 217, 60 L. J. Ch. Boulay (1869) L. R. 2 P. C. 430, 757. 38 L. J. P. C. 35; Bay v. Brown- (/) Jessel M. R., 10 Ch. Div. rigg (1878) 10 Ch. Div. 294, 48 304. L.J. Ch. 173; Street v. Union BanJc, P. 1. 146 GENERAL EXCEPTIONS. Express licence. Limits of consent. specific will or assent to suffer sometHng whicli, if inflicted against the party's will, would be a wrong, but only conduct showing that, for one reason or another, he is content to abide the chance of it {g). The case of express consent is comparatively rare in our books, except in the form of a licence to enter upon land. It is indeed in this last connexion that we most often hear of " leave and licence," and the authorities mostly turn on questions of the kind and extent of permission to be in- ferred from particular language or acts (A) . Force to the person is rendered lawful by consent in such matters as surgical operations. The fact is common enough ; indeed authorities are silent or nearly so, because it is common and obvious. Taking out a man's tooth without his consent would be an aggravated assault and battery. With consent it is lawfully done every day. In the case of a person under the age of discretion, the consent of that person's parent or guardian is generally necessary and sufficient («). But consent alone is not enough to justify what is on the face of it bodily harm. There must be some kind of just cause, as the cure or extirpation of disease in the case of surgery. Wilful hurt is not excused by consent or assent if it has no reasonable object. Thus if a man licenses another to beat him, not only does this not prevent the assault from being a punish- able offence, but the better opinion is that it does not deprive the party beaten of his right of action. On this (g) Unless we said that leave points to specific consent to an act, licence to general assent to the consequences of acts consented to : bat such a distinction seems too fanciful. (A) See Addison on Torts, p. 384, 7th ed. ; Cooley on Torts, 303, sqq. (i) Op. Stephen, Digest of the Criminal Law, art. 204. LIMITS OF LAWFUL CONSENT, 147 principle prize-fights and the like " are unlawful even ■when entered into by agreement and without anger or mutual Ul-will " (7i;) . "Whenever two persons go out to strike each other, and do so, each is guilty of an assault "(/). The reason is said to be that such acts are against the peace, or tend to breaches of the peace. But, inasmuch as even the slightest direct application of force, if not justified, was in the language of pleading vl et armis and contra paeon, something more than usual must be meant by this expression. The distiaction seems to be that agreement will not justify the wilful causing or endeavouring to cause appreciable bodily harm for the mere pleasure of the parties or others. Boxing with properly padded gloves is lawful, because in the usual course of things harmless. Fighting with the bare fist is not. Football is a lawful pastime, though many kicks are given and taken in it; a kicking match is not. "As to playing at foils, I cannot say, nor was it ever said that I know of, that it is not lawful for a gentleman to learn the use of the small sword ; and yet that cannot be learned without practising with foils " (m) . Fencing, single-stick, or playing with blunt sabres in the accustomed manner, is lawful, because the players mean no hurt to one another, and take such order by the use of masks and pads that no hurt worth speaking of is likely. A duel with sharp swords after the manner of German students is not lawful, though there be no personal enmity between the men, and (i) Commonwealth v. Collberg Buller N. P. 16. The passage (1876) 119 Mass. 350, and 20 Am. there and elsewhere cited from Hep. 328, where authorities are Comberbaoh, apart from the collected. See also Beg. v. Coney slender authority of that reporter, (1882) 8 Q. B. D. 634, 538, 546, is only a dictum. Buller's own 549, 367, and next page. authority is really better. (Z) Coleridge J. in Reg. v. Lewis (m) Foster's Crown Law, 260. (1844) 1 C. & K. at p. 421, op. l2 148 GENEEAL EXCEPTIONS. though the conditions be such as to exclude danger to life or limb. Here it cannot be said that " bodily harm was not the motive on either side " ()()• It seems to be what is called a question of mixed law and fact whether a particu- lar action or contest involves such intention to do real hurt that consent or assent will not justify it (o). Neglect of usual precautions in any pastime known to involve danger would be evidence of wrongful intention, but not conclu- sive evidence. Meg. V. This question was incidentally considered by several of ''"*^' the judges in Reg. v. Coney {p), where the majority of the Court held that mere voluntary presence at an unlawful fight is not necessarily punishable as taking part in an assault, but there was no difference of opinion as to a prize-fight being unlawful, or all persons actually aiding and abetting therein being guilty of assault notwithstand- ing that the principals fight by mutual consent. The Conrt had not, of course, to decide anything as to civil liability, but some passages in the judgments are material. Cave J. said : " The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of («) Eoster, I. c. " Motive ' ' is one monk might tave la-nrf ully hardly the correct word, hut the licensed another to beat him by meaning is plain enough. way of spiritual discipline. But (o) Cp. Pulton, De Pace Regis, anyhow he could not have sued, 17 b. It might be a nice point being civilly dead by his entering whether the old EugUsh back- into religion. swording (see "Tom Brown") was {p) 8 Q. B. D. 534, 51 L. J. lawful or not. And quaere of the M. C. 66 (1882). Eor fuller col- old rules of Eugby football, which lection and consideration of autho- aUowed deliberate kicking in some rities, cp. Mr. Edward Manson's circumstances. Qjiawr, also, whether note in L. Q. K. vi. 110. LIMITS OF LAWFUL CONSENT, 149 the peace and unlawful, the consent of the person struck is immaterial. If this view is correct a blow struck in a prize-fight is clearly an assault ; but playing with single- sticks or wrestling do not involve an assault, nor does boxing with gloves in the ordinary way " (q). Stephen J. said : " When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. . In eases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as for instance in cases of ■wrestling, singlestick, sparring with gloves, football, and the like ; but in all cases the question whether consent does or does not take from the application of force to another its illegal character is a question of degree depend- ing upon circumstances" (r). These opinions seem equally applicable to the rule of civil responsibility (s). A Ucenee obtained by fraud is of no eiieot. This is too Licence Dvious on the dwelling upon (t). obvious on the general principles of the law to need fraud. {g) 8 Q. B. D. at p. 539. As to expressed by Hawkins J., 8 Q. B. the limits of lawful toxing, see D. at pp. 553, 554. Heff. V. Orion (1878) 39 L. T. 293. {t) A rather curious illustration {r) 8 Q. B. D. at p. 549. Com- may be found in Dai-ies \. Mar- pare arts. 206, 208 of the learned shall (1861) 10 C. B. N. S. 697, judge's "Digest of the Criminal 31 L. J. C. P. 61, where the so- Law." The language of art. 208 called equitable plea and replica- follows the authorities, but I am tion seems to have amounted to a not sure that it exactly hits the common law plea of leave and distiuction. licence and joinder of issue, or ■ [s) Notwithstanding the doubt perhaps new assignment, thereon. 150 GENERAL EXCEPTIONS. Extended meaning of volenti non fit iniuria. Trials of strength and skill in such pastimes as those above mentioned afford, when carried on within lawful bounds, the best illustration of the principle by which the maxim volenti non fit iniuria is enlarged beyond its literal meaning. A man cannot complain of harm (within the limits we have mentioned) to the chances of which he has exposed himself with knowledge and of his free will. Thus in the case of two men fencing or playing at singlestick, volenti non fit iniuria would be assigned by most lawyers as the governing rule, yet the words must be forced. It is not the will of one player that the other should hit him; his object is to be hit as seldom as possible. But he is content that the other shall hit him as much as by fair play he can ; and in that sense the striking is not against his will. Therefore the " assault " of the school of arms is no assault in law. Still less is there an actual consent if the fact is an accident, not a necessary incident, of what is being done ; as where in the course of a cricket match a player or spectator is struck by the ball. I suppose it has never occurred to any one that legal wrong is done by such an accident even to a spectator who is taking no part in the game. So if two men are fencing, and one of the foils breaks, and the broken end, being thrown off with some force, hits a bystander, no wrong is done to him. Such too is the case put in the Indian Penal Code {u) of a man who stands near another cutting wood with a hatchet, and is struck by the head flying off. It may be said that these examples are trivial. They are so, and for that reason appropriate. They show that the principle is constantly at work, and that we find little about it in our books just because it is unquestioned in common sense as well as in law. [it] Illust. to s. 80. On the point of actual consent, cf. ss. 87 and I TAKING RISK. 151 Many cases of this kind seem to fall not less naturally Helation Civ "Hi f^^P under the exception of inevitaUe accident. But there is, cases to we conceiye, this distinction, that where the plaintiff has ^oiaeat.^ voluntarily put himself in the way of risk the defendant is not hound to disprove negligence. If I choose to stand near a man using an axe, he may be a good woodman or not ; hut I cannot (it is submitted) complain of an accident because a more skilled woodman might have avoided it. A man dealing with explosives is bound, as regards his neighbour's property, to diligence and more than diligence. But if I go and watch a firework-maker for my own amusement, and the shop is blown up, it seems I shall have no cause of action, even if he was handling his materials unskilfully. This, or even more, is implied in the decision in Iloti v. Wilkes («), where it was held that one who trespassed in a wood, having notice that spring- guns were set there, and was shot by a spring-gun, could not recover. The maxim " volenti non fit iniuria " was expressly held applicable : " he voluntarily exposes him- self to the mischief which has happened" (i/). The case gave rise to much public excitement, and led to an altera- tion of the law (z), but it has not been doubted in subse- quent authorities that on the law as it stood, and the facts as they came before the Court, it was well decided. As the point of negligence was expressly raised by the (») 3 B. & Aid. 304 (1820) ; cp. (y) Per Bayley J. 3 B. & Aid. at and dist. tlie later case of Bird v. p. 311, and Holroyd J. at p. 314. Molbrook (1828) 4 Bing. 628. The («) Edin. Rev. xxxv. 123, 410(re- argument that since the defendant printed in Sydney Smith's works). could not have justified shooting a Setting spring- guns, except by trespasser with his own hand, even night in a dwelling house for the after warning, he could not justify protection thereof, was made a. shooting him with a spring-gun, criminal offence by 7 & 8 Geo. IV. is weighed and found wanting, c. 18, now repealed and substan- though perhaps it ought to have tiaUy re-enacted (24 & 25 Vict, prevailed. o. 95, s. 1, and c. 100, s. 31). 152 GENERAL EXCEPTIONS. pleadings, the decision is an authority that if a man goes out of his way to a dangerous action or state of things, he must take the risk as he finds it. And this appears to be material with regard to the attempt made by re- spectable authorities, and noticed above, to bring under this principle the head of excuse by reason of inevitable accident (a). Know- It was held by a majority of the Court of Appeal that risk op- if a man undertakes to work in a railway tunnel where he duty of° knows that trains are constantly passing, he cannot com- wamiug. plain of the railway company for not taking measures to warn the workmen of the approach of trains, and this though he is the servant not of the company but of the contractor (b). The minority held that the railway com- pany, as carrying on a dangerous business, were bound not to expose persons coming by invitation upon their property to any undue risk, and at all events the burden of proof was on them to show that the risk was in fact understood and accepted by the plaintiff (c). " If I invite a man who has no knowledge of the locality to walk along a dangerous cliff which is my property, I owe him a duty different to that which I owe to a man who has all his life birdnested on my rocks " (d). But where a man goes on doing work under a risk which is known to him, and which does not depend on any one else's acts, or on the condition of the place where the work (a) Holmes v. Mather (1875) L. (c) Cp. Thomas v. Quartermaine R. 10 Ex. at p. 267 ; Sylands v. (1887) 18 Q. B. Div. 685, 56 L. J. Fletcher (1866) L. R. 1 Ex. at p. Q. B. 340, and Lord Hersohell's 287. judgment in Membery v. (?. W. M. (b) Woodletj V. Metr. Dist. M. Co. Co. (1889) U App. Ca. 179, 190. (1877) 2 Ex. Div. 384, 46 L. J. [d) Fry L. J. 18 Q. B. Div. at Ex. 521 ; Hellish and Baggallay p. 701. Ajid see Tarmouth v. L. JJ. diss. France (1887) 19 Q. B. D. 647, 57 L. J. Q. B. 7. TAiaNG EISK. 153 is done, tut is incident to the work itself, he cannot be heard to say that his exposure of himself to such risk was not voluntary (f). The principle expressed by volenti noii- fit iniuria is Cases different from that of contributory negligence (/), as it employers is in itself independent of the contract of service or any ^o^kmen : other contract {g) . It does not follow that a man is negli- Smith v. gent or imprudent because he chooses to encounter a risk which he knows and appreciates ; but if he does volun- tarily run the risk, he cannot complain afterwards {h). At the same time knowledge is not of itself conclusive. The maxim is volenti — not scienti — non fit iniuria; " the question whether in any particular case a plaintiff was miens or noletts is a question of fact and not of law"(2). A workman is not bound, for example, to throw up his employment rather than go on working with appliances which he knows or suspects to be dangerous; and con- tinuing to use such appliances if the employer cannot or will not give him better is not conclusive to show that he voluntarily takes the attendant risk (k). 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 («) Memhery v. G. IT. B. Co. (A) Bowen L. J. 18 Q. B. Div. note [c), last page. Lord Bram- at p. 695. well's extra-judicial remarks can- (i) Hid. at p. 096 ; Lindley L.J. not be supported : see per Lord in Yarmouth v. France (1887) 19 Hersoliell, 14 App. Ca. at pp. 192, Q. B. D. 647, 659, before judges 193 ; and Smith v. Baker, note (i), of the C. A. sitting as a divisional p. 155. Court. (/) Bowen L. J. in Thomas v. (/c) Yarmouth v. France, last note ; Quartermaine (1887) 18 Q. B. Div. Thrussell v. Handyside (1888) 20 685, 694, 697, 66 L. J. Q. B. 340. Q. B. D. 359, 57 L. J. Q. B. 347 ; ig) 18 Q. B. Div. at p. 698. Smith v. Baker, '91, A. 0. 325, 60 L. J. Q. B. 683, 154 GENEEAL EXCEPTIONS. express term) that the ■workman should accept that risk. Since the Employers' Liability Act has deprived the master, as we have already seen, of the defence of " common employment " in a considerahle number of cases, the defence of volenti non fit iniuria has several times been resorted to, with the effect of raising complicated dis- cussion on tolerably simple facts. By treating the maxim as if it were of literal authority (which no maxim is), and then construing it largely, something very like the old doctrine of " common employment " might have been indirectly restored. For some time there was appreciable danger of this result. But the tendency was effectually checked by the decision of the House of Lords in Smith V. Baker [e). Except where there is an obvious and necessary danger in the work itself, it must be a question of fact in every case whether there was an agreement or at any rate consent to take the risk. " Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accom- panying it, and cannot, if he suffers, be permitted to com- plain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action :" as in the case of works unavoidably producing noxious fumes. But where "a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer," there " the mere continuance in service, with knowledge of the risk," does not "preclude the employed, if he suffer from such negligence, from recovering in respect of his employer's breach of duty" (/). Anid it seems that (e) '91 A. C. 325. (/) Lord HeraoteU, '91 A. C. at pp. 360, 362. TAKING RISK. 155 (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 know- ledge that risk of a certain kind is possible (g). Cases of volenti iioii Jit iniuria are of course to be dis- Distine- tinguished from cases of pure unexpected accident where ^o Beo-li- there is no proof of any negligence at all on the defen- |^°"® ^^ dant's part Qi). It seems that Thomas v. Quarteniiainc, though not so dealt with, was really a case of this latter kind(0. In the construction of a policy of insurance against death or injury by accident, an exception of harm " hap- pening by exposure of the insured to obvious risk of injury " includes accidents due to a risk which would have been obvious to a person using common care and attention (k). We now see that the whole law of negligence assumes Distino- \he "piYaw^XQ oi volenti non fit iniuria -rioi to be applicable, cases It was suggested in Holmes v. Mather (I) that when a '^^^^^ oo \ I negligence competent driver is run away with by his horses, and in is ground of action, 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 negligence ? It is common knowledge that not all drivers {g) Lord Halsbury, '91, A. C. tHs point, not having been raised at pp. 336 — 338. at the trial belo-w, was not open on (A) Walsh V. WhiteUy (1888) 21 the appeal. It was nevertheless Q. B. Div. 371, S7 L. J. Q. B. extra-judioially discussed, with 586. considerable variety of opinion. (j) See Lord Morris's remarks [k) Cornish v. Accident Insurance in Smith v. Baker, '91, A. C. at Co. (1889) 23 Q. B. Div. 453, 68 p. 369. In Smith v. Baker itself, L. J. Q. B. 691. an appeal from a County Court, (Z) L. E. 10 Ex. at p. 267. 156 GENBEAL EXCEPTIONS. 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 tbe admirable police regula- tions of later years) could have crossed London streets without knowing that there was a risk of being run over " (w). The actual risk to which a man crossing the street is exposed (apart from any carelessness on his own part) is that of pure misadventure, and also that of careless di'iving, the latter element being probably the greater. If he really took the whole risk, a driver would not be liable to him for running over him by negligence : which is absurd. Are we to say, then, that he takes on himself the one part of the risk and does not take the other ? A reason thus artificially limited is no reason at all, but a mere fiction. It is simpler and better to say plainly that the driver's duty is to use proper and reasonable care, and beyond that he is not answerable. The 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 fiy from a risk from which it is another's duty to protect him, merely because the risk is known (??). 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 shaU have to consider in its place (o). (;n) Lord Halsbury, '91, A. C. 42 L. J. Q. B. 105 ; Solsony.N: E. at p. 337. S. Co. (1875) L. E. 10 Q. B. at {«) Smith V. Baker, '91, A. C. p. 274, 44 L. J. Q. B. 112 ; and 325, 60 L. J. Q. B. 683 ; Thrussell per Bram-well L. J. (not referring V. Sandyside (1888) 20 Q. B. D. to these authorities, and taking a 359, 67 L. J. Q. B. 347. eome-what different -pie-w), Lax v. (o) See Gee ^ . Metropolitan U. Co. Corporation of Darlington (1879) 5 (1873) Ex. Ch. L. E. 8 Q. B. 161, Ex. D. at p. 35, 49 L. J. Ex. 105. WORKS OF NECESSITY. 157 11. — Works of necessity. A olass of exoeptions as to whioli there is not mucli Works of . ^ necessity. authority, hut 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 {p), and casting goods overhoard, or otherwise sacrificing property, to save a ship or the lives of those on board, are the regular examples. The maritime law of general average assumes, as its very foundation, that the destruction of property under such conditions of danger is justifiable (j). 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" (r). There are also circumstances in which a man's property or person may have to be dealt with promptly for his own obvious good, but his consent, or the consent of any one having lawful authority over him, cannot be obtained in time. Here it is evidently justifiable to do, in a proper and reasonable manner, what needs to be done. It has never been supposed to be even technically a trespass if I throw water on my neighbour's goods to save them from fire, or seeing his house on fire, enter peaceably on his land to help in putting it out(s). Nor is it an assault for the [p) Dyer, 36 b. Cp. the opinion {r) Kingsmill J. 21 Hen. VII. of Best C. J. in Bewey v. White 27, pi. 6 ; op. Dyer, ubi supra. In (1827), M. & M. 56 (damage in- 8 Ed. IV. 23, pi. 41, it is thought evitably done to plaintiff's house in doubtful whether the justification throwing down chimneys ruined by should be by common law or by fire, which were in danger of fall- special custom. ing into the highway : a verdict («) Good will without real neces- for the defendants was acquiesced sity would not do ; there must be in). danger of total loss, and, it is said, {q) Mowe's ease, 12 Co. Hep. 63, without remedy for the owner is only just worth citing as an against any person, per Rede C. J. illustration that no action lies. 21 Hen. VII. 28, pi. 5 ; but if this 158 GENERAL EXCEPTIONS. 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 shght and scattered hints on the subject, pro- bably because no question has ever been made {t). 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 protec- tion of the estate or for other purposes of immediate necessity («). 12. — Frivate defence. Self- Self-defence (or rather private defence {v), for defence of one's self is not the only case) is another ground of immunity well known to the law. To repel force by force is the common instinct of every creature that has means of defence. And when the original force is un- lawful, this natural right or power of man is allowed, nay approved, by the law. Sudden and strong resistance to unrighteous attack is not merely a thing to be tolerated ; in many cases it is a moral duty. Therefore it would be be laTT, it must be limited to reme- featly insufficient for that purpose : dies against a trespasser, for it Carter t, Thomas, '93, 1 Q. B. 673, cannot be a trespass or a lawful 5 R. 343 (judgment of Kennedy J.) act to save a man's goods accord- {t) Cf. the Indian Penal Code,) ing as they are or are not insured. s. 92, and the powers given to the Cp. Y. B. 12 Hen. VIII. 2, where London Fire Brigade by 28 & 29 there is some curious discussion on Vict. u. 90, s. 12, which seem rather the theory of trespass generally. to assume a pre-existing right at A mere volunteer may not force common law. his way into a house on fire already (u) See Kirhy. Gregory [WIS] 1 under the control of persons who Ex. D. 55, 59. are lawfully endeavouring to put {v) This is the term adopted ia down the fire, and are not mani- the Indian Penal Code. defence. PRIVATE DEFENCE. 159 a grave mistake to regard self-defence as a necessary evil suffered by the law because of tbe 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 (w). At the same time no right is to be abused or made the cloak of wrong, and this right is one easily abused. The law sets bounds to it by the rule that the force employed must not be out of proportion to the apparent urgency of the occasion. We say apparent, for a man cannot be held to form a precise judgment under such conditions. The person acting on the defensive is entitled to use as much force as he reasonably believes to be necessary. Thus it is not justifiable to use a deadly weapon to repel a push or a blow with the hand. It is even said that a man attacked with a deadly weapon must retreat as far as he safely can before he is justified in defending himself by like means. But this probably ap- plies (so far as it is the law) only to criminal liability («) . On the other hand if a man presents a pistol at my head and threatens to shoot me, peradventure the pistol is not loaded or is not in working order, but I shall do no wrong before the law by acting on the supposition that it is really loaded and capable of shooting. " Honest and reasonable belief of immediate danger" is enough (y). {w) Blackstone iii. 3 ; and aee of his men as ■well as they in his. the opinion of all the justices of K. LI. Alf. o. 42, § 5. B., 21 Hen. VII. 39, pi. 50. There (;;:) See Stephen, Digest of Cri- has been some doubt whether a minal Law, art. 200. Most of the master could justify on the ground authority on this subject is in of the defence of his servant. But the early treatises on Pleas of the the practice and the better opinion Crown. have always been otherwise. Before {y) N. 0. ^ N. E. R. R. Co. v. the Conquest it was understood Jopes (1891) 142 U. S. 18. that a lord might fight in defence 160 GENERAL EXCEPTIONS. Killing of Cases have arisen on tlie killing of animals in defence defence of of One's property. Here, as elsewhere, the test is whether property. ^^^ party's act was such as he might reasonably, in the circumstances, think necessary for the prevention of harm which he was not hound to sufEer. Not very long ago the subject was elaborately discussed in New Hampshire, and all or nearly all the authorities, English and American, reviewed (2). Some of these, such as JDeane v. Clayton {a), turn less on what amount of force is reasonable in itself than on the question whether a man is bound, as against the owners of animals which come on his land otherwise than as of right, to abstain from making the land dangerous for them to come on. And in this point of view it is immaterial whether a man keeps up a certain state of things on his own land for the purpose of defend- ing his property or for any other purpose which is not actually unlawful. As to injuries received by an innocent third person from an act done in self-defence, they must be dealt with on the same principle as accidental harm proceeding from any other act lawful in itself. It has to be considered, how- ever, that a man repelling imminent danger cannot be expected to use as much care as he would if he had time to act deliberately. Self-defence does not include the active assertion of a Assertion of rights distin- disputed right against an attempt to obstruct its exercise. (z) Aldrich v. Wright (1873) 63 N. H. 398, 16 Am. Eep. 339. The decision was that the penalty of a statute ordaining a close time for minks did not apply to a man who shot on his own land, in the close season, minks which he rea- sonably thought were in pursuit of his geese. Compare Taylor app. Kncman resp. (1863) 4 B. & S. 89, 32 L. J. M. C. 186. [a) 7 Taunt. 489, the case of dog-spears, where the Court was equally divided (1817) ; Jordin v. Crmnp (1841) 8 M. & W. 782, where the Court took the view of Gibbs C. J. in the last case, on the ground that setting dog-spears was not in ittelf illegal. Notice, however, was pleaded. DEFENCE AND NECESSITY. 161 I am not justified in shooting, or ofiEering to shoot, one gmshed "who ohstructs my right of way, though I may not be able defence, to pass him otherwise, and though I am justified in resist- ing, within due bounds, any active force used on his part. It seems the better opinion " that the use of force which inflicts or may inflict grievous bodily harm or death — of what in short may be called extreme force — is justifiable only for the purpose of strict self-defence " {b). I may be justified in pushing past the obstructor, but this is not an act of self-defence at all ; it is the pure and simple exercise of my right itself (c). Many interesting questions, in part not yet settled, may be raised in this connexion, but their interest belongs for most practical intents to public and not to private law. It must not be assumed, of course, that whatever is a suffi- cient justification or excuse in a criminal prosecution will equally suffice in a civil action. Some of the dicta in the well-known case of Scotf v. injury to Shepherd (d) go the length of suggesting that a man acting sons from on the spur of the moment under " compulsive necessity " ggj/. (the expression of De Grey C.J.) is excusable as not being defence. 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 endamage others" (e). The Eoman lawyers held that a (b) Dicey, Law of the Constitu- {d) 2 W. Bl. 892. tion, 4th ed. 1893, appx. note (N), («) Blaokstone J. in his dissent- which see for fuller discussion. ing judgment, 2 W. Bl. at p. 895. (c) Dicey, op. cit. 426. P. M 162 GENERAL EXCEPTIONS. man who throws a stone in self-defence is not excused if the stone by misadventure strikes a person other than the assailant (/) . 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 fuU 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 by no fault of my own, this does not entitle me to let it off by means which in the natural order of things cause it to flood an adjoining owner's land (g). 13. — Plaint iff a wrong-doer. Harm suf- Language is to be met with in some books to the effect a wrong- that a man cannot sue for any injury suffered by him at a doubtful ^™^ when he is himself a wrong-doer. But there is no •whether such general rule of law. If there were, one consequence any special ° _ ^ disability, 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 incautiously fast pace, anybody might throw stones at him with impunity. In Bird v. Solbrook (h) a trespasser who was wounded by a spring-gun (/) D. 9. 2, ad 1. Aquil. 45, ^ i; common danger. supra, p. 124. (A) (1828) 4 Bing. 628. Cp. p. {ff) Whalley v. Lane, and Torh- 151, above. The cause of action shire S. Co. (1884) 13 Q. B. Div. arose, and the trial took place, 131, 53 L. J. Q. B. 285, distin- before the passing of the Act whicli gnishing the case of acts lawful in made the setting of spring -guns themselves which are done by way unlawful, of precaution against an impending "WHERE PLAINTIFF A WEONO-DOEE. 163 set without notice was held entitled to maintain his action. And generally, " a trespasser is liable to an action for the injury which he does ; hut he does not forfeit his right of action for an injury sustained " (i). It does not appear on the whole that a plaintiff is disabled from reeoveriag by reason of being himself a wrong-doer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction : and even then it is difficult to find a case where it is neces- sary to assume any special rule of this kind. It would be no answer to an action for killing a dog to show that the owner was liable to a penalty for not having taken out a dog licence in due time. If, again, A. receives a letter containing defamatory statements concerning B., and reads the letter aloud in the presence of several persons, he may be doing wrong to B. But this will not justify or excuse B. if he seizes and tears up the letter. A. is unlawfully possessed of explosives which he is carrying in his pocket. B., walking or running in a hurried and careless manner, jostles A. and so causes an explosion. Certainly A. cannot recover against B. for any hurt he takes by this, or can at most recover nominal damages, as if he had received a harmless push. But would it make any difference if A.'s possession were lawful ? Suppose there were no statutory regulation at all : stiU a man going about with sensitive explosives in his pocket would be exposing himself to an unusual risk obvious to him and not obvious to other people, and on the principles already discussed would have no cause of action. And on the other hand it seems a strong thing to say that if another person does know of the special danger, he does not become bound to take answerable care, even as regards one who has brought (i) Barnes v. Wmd (1850) 9 C. B. 392, 19 L. J. 0. P. 195. m2 1 64 GENERAL EXCEPTIONS. himself into a position of danger by a wrongful act. Oases of this kind have sometimes heen thought to belong to the head of contributory negligence. But this, it is submitted, is an unwarrantable extension of the term, founded on a misapprehension of the true meaning and reasons of the doctrine; as if contributory negligence were a sort of positive wrong for which a man is to be punished. This, however, we shall have to consider hereafter. On the whole it may be doubted whether a mere civil wrong- doing, such as trespass to land, ever has in itself the effect now under consideration. Almost every case that can be put seems to fall just as well, if not better, under the principle that a plaintiff who has voluntarily exposed him- self to a known risk cannot recover, or the still broader rule that a defendant is liable only for those consequences of his acts which are, in the sense explained in a former chapter {k), natural and probable. Conflict of In America there has been a great question, upon which TJniied ™ there have been many contradictory decisions, whether the cas*r f'' violation of statutes against Sunday travelling is in itself Sunday a bar to actions for injuries received in the course of such travelling;. travelling through defective condition of roads, negligence of railway companies, and the like. In Massachusetts (where the law has siace been altered by statute), it was held that a plaintiff in such circumstances could not re- cover, although the accident might just as well have hap- pened on a journey lawful for all purposes. These decisions must be supported, if at all, by a strict view of the poUoy of the local statutes for securing the observance of Sunday. They are not generally considered good law, and have been expressly dissented from in some other States (I). {k) P. 32, above. (Wisoonsin, 1871) Bigelow L. 0. [l) Sutton V. Town of Wauwatosa 711, and notes thereto, pp. 721-2; UNLAWFUL CONDUCT OF PLAINTIFF. 165 The principle now defined by the Supreme Court of Mas- sachusetts as generally applicahle is that illegal conduct of the plaintiff which contributed directly and proximately to the injury suffered by him is equivalent, as matter of law, to contributory negligence {m). It is a rule not confined to actions on contracts that Cause of " the plaintiff cannot recover where in order to maintain connected his supposed claim he must set up an illegal agreement to ^i^wM which he himself has been a party " (w) : but its applica- agree- tion to actions of tort is not frequent or normal, The case from which the foregoing statement is cited is the only clear example known to the writer, and its facts were very peculiar. iS, C. in Jer. Smith's Cases on («) Newcomh v. Boston Frotective Torts, ii. 115, see note, ib.; Cooley Depart. (1888), 146 Mass. 596, Jer. on Torts, 156. And see White t. Smith, op. cH. il. 123. Lang, 128 Mass. 598; Bucher v. [n) Maule J,, Fivaz v. NichoUs Cheshire R. M. Co., 125 U. S. 555. (1846) 2 C. B. 601, 512. 166 CHAPTER V. OF EEMEDIES FOR TORTS. DiYersity At common law there were only two kinds of redress for dies. an actionable 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 money compensation ; but he could not have it from a court of common law. Specific orders and prohibitions in the form of injunctions or otherwise were (with few exceptions, if any) (b) in the hand of the Chancellor alone, and the principles according to which they were granted or withheld were counted among the mysteries of Equity. But no such distinctions exist under the system of the Judicature Acts, and every branch of the Court has power to administer every remedy. There- (a) Possession could be recovered, mands (e.^. mandamus) were ap- of course, in an action of ejectment. plicable to the redress of purely But this was an action of trespass private wrongs, though they might in form only. In substance it took be available for a private person the place of the old real actions, wronged by a breach of pubUc and it is sometimes called a real duty. Under the Common Law action. Detinue was not only not Procedure Acts the superior oourta a substantial exception, but hardly of common law had Hmited powers even a formal one, for the action of granting injunctions and ad- was not really in tort. ministering equitable reUef. These (i) I do not think any of the were found of little importance in powers of the superior courts of practice, and there is now no reason common law to issue specific com- for dwelling on them. SELF-HELP. 167 fore we have at this day, in considering one and the same jurisdiction, to bear in mind the manifold forms of legal redress which for our predecessors were separate and un- connected incidents in the procedure of different courts. Eemedies available to a party by his own act alone may Self-Mp. be included, after the example of the long established Grerman usage, in the expressive name of self-help. The right of private defence appears at first sight to be an obvious example of this. But it is not so, for there is no question of remedy in such a case. We are allowed to repel force by force " not for the redress of injuries, but for their prevention "(c) ; not in order to undo a wrong done or to get compensation for it, but to cut wrong short before it is done ; and the right goes only to the extent necessary for this purpose. Hence there is no more to be said of self-defence, in the strict sense, in this connexion. It is only when the party's lawful act restores to him something which he ought to have, or puts an end to a state of things whereby he is wronged, or at least puts pressure on the wrong-doer to do him right, that self-help is a true remedy. And then it is not necessarily a com- plete or exclusive remedy. The acts of this nature which we meet with in the law of torts are expulsion of a trespasser, retaking of goods by the rightful possessor, dis- tress damage feasant, and abatement of nuisances. Peace- able re-entry upon land where there has been a wrongful change of possession is possible, but hardly occurs in modem experience. Analogous to the right of retaking goods is the right of appropriating or retaining debts under certain conditions ; and various forms of lien are more or less analogous to distress. These, however, be- long to the domain of contract, and we are not now (c) This is well noted in Cooley on Torts, 50. 168 REMEDIES FOE TORTS. concerned with them. Such are the species of remedial self-help recognized in the law of England. In every case alike the right of the 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 cases the mode of exercising the right has been specially modi- fied or regulated. Details will best be considered hereafter in relation to the special kinds of wrong to which these kinds of redress are applicable {d) . Judicial remedies : damages. "We pass, then, from extra-judicial to judicial redress, from remedies by the act of the party to remedies by the act of the law. The most frequent and famUiar of these is the awarding of damages (e). Whenever an actionable wrong has been done, the party wronged is entitled to recover damages ; though, as we shall immediately see, this right is not necessarily a valuable one. His title to recover is a conclusion of law from the facts determined in the cause. How much he shall recover is a matter of judicial discretion, a discretion exercised, if a jury tries the cause, by the jury under the guidance of the judge. As we have had occasion to point out in a former chapter (/), the rule as to " measure of damages " is laid down by the Court and applied by the jury, whose application of it is, to a certain extent, subject to review. The grounds on which the verdict of a jury may be set aside are all reducible to this principle : the Court, namely, must be satisfied not only that its own finding would have been different (for there is a wide field withia which opinions and estimates may fairly differ) ('« (1809) 5 Johns. 188, Bige- Q. B. 23. As to defamation in the low L. 0. 77, 80 ; later authorities way of business, see p. 227, below. P. Q 226 DEFAMATION. that a man's reputation for courage, honour, and truthful- ness, a woman's for chastity and modest conduct, was something of which the loss would naturally lead to damage in any lawful walk of life. But the rule was otherwise {t), and remains so as regards all slander of this kind against men, and against women also as regards all charges of improper conduct short of unohastity, which yet may sometimes be quite as vexatious, and more mischievous because more plausible. The law went wrong from the beginning in making the damage and not the insult the cause of action ; and this seems the stranger when we have seen that with regard to assault a sounder principle is well established (m). A person who has committed a felony and been con- victed may not be called a felon after he has undergone the sentence, and been discharged, for he is then no longer a felon in law (»). Imputa- Little need be said concerning imputations of contagious tions of . . f • J. ±1 I • • IT. contagious disease unfittmg a person for society : that is, m the modern law, venereal disease (x) . The only notable point is that " charging another with having had a contagious disorder is not actionable ; for imless the words spoken impute a continuance of the disorder at the time of speak- ing them, the gist of the action fails ; for such a charge cannot produce the effect which makes it the subject of an (<) The technical reason was that (t>) Leym^m v. Latimer (1878) 3 charges of incontinence, heresy, &c. , Ex. Div. 352, 47 L. J. Ex. 470. were " spiritual defamation," and There are some curious analogies to the matter determinable in the these refinements in the Italian Ecclesiastical Court acting pro sixteenth - century hooks on the animae. See Davis v. Gar~ point of honour, such as Alciato's. diner, 4 Co. Rep. 16 b ; Palmer t. («) Leprosy and, it is said, the Thorpe, ib. 20 a. plague, were in the same category. (m) p. 197, above. Small-pox is not. See Blake Odgers 64. SLANDER : IN OFFICE OE BUSINESS. 227 action, namely, his being avoided by society " (y) . There does not seem to be more than one reported English case of the kind within the present century (s). Concerning words spoken of a man to his disparagement Evil- in his office, profession, or other business: they are action- of T man able on the following conditions : — They must be spoken of ™ *^^ ^^7 him in relation to or " in the way of " a position which he business, holds, or a business he carries on, at the time of speaking. Whether they have reference to his office or business is, in case of doubt, a question of fact. And they must either amount to a direct charge of incompetence or ttafitness, or impute something so inconsistent with competence or fitness that, if believed, it would tend to the loss of the party's employment or business. To call a stonemason a " ringleader of the nine hours system " is not on the face of it against his competence or conduct as a workman, or a natural and probable cause why he should not get work ; such words therefore, in default of anything show- ing more distinctly how they were connected with the plaintiff's occupation, were held not to be actionable (a). Spoken charges of habitual immoral conduct against a clergyman or a domestic servant are actionable, as na- turally tending, if believed, to the party's deprivation or other ecclesiastical censure in the one case, and dis- missal in the other. Of a clerk or messenger, and even of a medical man, it is otherwise, unless the imputation is in some way specifically connected with his occupation. It is actionable to charge a barrister with being a dunce, or being ignorant of the law; but not a justice of the (y) Carslake Y. Mapledoram [1788) judgment runs thus: "This case 2 T. R. 473, Bigelo-w L. 0. 84, per falls withiti the principle of the old Ashhurst J. authorities." («) Bloodworth v. Gray (1844) 7 [a) Miller v. David (1874) L. R. M. & Gr. 334. The whole of the 9 C. P. 118, 43 L. J. C. P. 84. q2 228 DEFAMATION. peace, for lie need not he learned. It is actionable to charge a solicitor witli cheating his clients, hut not with cheating other people on occasions unconnected with his business (b). But this must not be pressed too far, for it would seem to be actionable to charge a solicitor with any- thing for which he might be struck off the roll, and the power of the court to strike a solicitor off the roll is not confined to cases of professional misconduct (c). It makes no difEerence whether the office or profession carries with it any legal right to temporal profit, or in point of law is wholly or to some extent honorary, as in the case of a barrister or a fellow of the OoUege of Phy- sicians ; but where there is no profit in fact, an oral charge of unfitness is not actionable unless, if true, it would be a ground for removal (d). Nor does it matter what the natui-e of the employment is, provided it be lawful (e) ; or whether the conduct imputed is such as in itself the law will blame or not, provided it is inconsistent with the due fulfilment of what the party, in virtue of his employment or office, has undertaken. A gamekeeper may have an action against one who says of him, as gamekeeper, that he trapped foxes (/) . As regards the reputation of traders the law has taken a broader view than elsewhere. To impute insolvency to a tradesman, in any form whatever, is actionable. Substantial damages have been given by a jury, and allowed by the court, for a mere clerical error by which an advertisement of a dissolution of partnership was printed among a list of meetings under the Bankruptcy (J) Doyky T. Soierts (1837) 3 C. A. Bing. N. C. 835, and authorities («) L. E. 2 Ex. at p. 330. there cited. (/) Foulger v. Meweomb (1867) {c) Me Weare, '93, 2 Q. B. 439. L. E. 2 Ex. 327, 36 L. J. Ex. (d) Alexander y. Jenkins, '92, 1 169. Q. B. 797, 61 L. J. Q. B. 634, INDIRECT DAMAGE TO BUSINESS. 229 Act (g). A trading corporation may be defamed in rela- tion to the conduct of its business (h). There are cases, though not common ia our books, in Words which a man suffers loss in his business as the intended or causing "natural and probable result" of words spoken in relation t(^™man to that business, but not against the man's own character ™ ^}^ , . . business. or conduct : as where a wife or servant dwelling at his place of business is charged with misbehaviour, and the credit of the business is thereby impaired: or where a statement is made about the business not in itself defama- tory, but tending to a like result, such as that the firm has ceased to exist («'). In such a case an action lies, but is not properly an action of slander, but rather a special action (on the case in the old system of pleading) " for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title." General loss of business is sufficient " special damage " to be a cause of action in such a case Qi). 2. — Defamation in general. We now pass to the general law of defamation, which Rules as applies to both slander and libel, subject, as to slander, to mation the conditions and distinctions we have just gone through, generally. Considerations of the same kind may afPect the measure of (g) Blake Odgers 80 ; Shepheardr. B. 535. WhitaTcer (1875) L. R. 10 C. P. 502. (i) naUUffe v. Bvans, last note ; (A) South Melton Coal Co. v. N. E. op. Sartley v. Herring (1799) 8 T. lfewsAssoeiation,'^i,lQl.'B.lSZ,9 R. 130, 4 R. R. 614; Riding v. R.Apr. 170(tlu8wa3apriDtedlibel, Smith (1876) 1 Ex. D. 91, 46 L. J. but the principle seems equally Ex. 281, must be justified, if at all, applicable to spoken words). as a case of this class : '92, 2 Q. B. (i) Per C. A., MaicUffe v. Evans, at p. 534. '92, 2 Q. B. 524, 627, 61 L. J. Q. 230 DEFAMATION. damages for ^VTitten defamation, though not the right of action itself. "Implied It is oommonly said that defamation to he actionahle must he malicious, and the old form of pleading added "maliciously" to "falsely." Whatever may have heen the origin or the original meaning of this language {I), malice in the modern law signifies neither more nor less, in this connexion, than the absence of just cause or excuse (tn) ; and to say that the, law implies malice from the publication of matter calculated to convey an action- ahle imputation is only to say in an artificial form that the person who so publishes is responsible for the natural consequences of his act (■«). "Express malice" means somethiug different, of which hereafter. Whatia Evil-speaking, of whatever kind, is not actionable if tion. communicated only to the person spoken of. The cause of action is not insult, but proved or presumed injury to reputation. Therefore there must be a communication by the speaker or writer to at least one third person ; and this necessary element of the wrongful act is technically called publication. It need not amount to anything like publica- tion in the common usage of the word. That an open message passes through the hands of a telegraph clerk (o), or a manuscript through those of a compositor in a print- ing-office (^j), or a letter dictated by a principal is taken {{) See Bigelow L. C. 117. McFherson v. Daniels (1829) 10 B. [m) Bayley J. in Bromage v. & C. 272. Prosser (1825) 4 B. & C. at p. 253, («) Lord Blackburn in Capital Bigelow L. 0. 137 : " Malice in and Counties Bank v. Henty (1882) common acceptation means ill-mil 7 App. Ca. 787, 52 L. J. Q. B. 232. against a person, but in its legal (o) See Williamson y. Freer (1874) sense it means a wrongful act done L. R. 9 0. P. 393, 43 L. J. C. P. intentionally without just cause or 161. excuse : " so too Littledale J. in {p) Printing is for this reason PUBLICATION. down in shortliand and type-written by a clerk (q), is enough to constitute a publication to tbose persons if they are capable of understanding the matters so delivered to them. The opening of a letter addressed to a firm by a clerk of that firm authorized to open letters is a publication to him (q) . Every repetition of defamatory words is a new publication, and a distinct cause of action. The sale of a copy of a newspaper, published (in the popidar sense) many years ago, to a person sent to the newspaper office by the plaintiff on purpose to buy it, is a fresh publication (r). It appears on the whole that if the defendant has placed defamatory matter within a person's reach, whether it is likely or not that he will attend to the meaning of it, this throws on the defendant the burden of proving that the paper was not read, or the words heard by that person ; but if it is proved that the matter did not come to his knowledge, there is no publication («). A person who is an unconscious instrument in circulating libellous matter, not knowing or having reason to believe that the document he circulates contains any such matter, is free from liabihty if he proves his ignorance. Such is the case of a news- vendor, as distinguished from the publishers, printers, and owners of newspapers. " A newspaper is not like a fire ; a man may carry it about without being bound to suppose that it is likely to do an injury " {t). If A is justified in prima facie a publication, Baldwin business is privileged too. Boxsius Y. Mphinston, 2 W. Bl. 1037. v. Goblet Frhes, '94, 1 Q. B. 842, There are obvious exceptions, as if 9 E. Mar. 211, C. A. tbe text to be printed is Arabic or (r) Du/ce of Brunswick v. Sarmer Chinese, or the message in cipher. (1849) 14 Q. B. 185, 19 L. J. Q. B. [q) Fullman\. Bill § Co., '91, 1 20. Q. B. 524, 60 L. J. Q. B. 299, [s) Blake Odgers 154. C. A. But if the occasion of the {t) JEmmens v. Foltle (1885) 16 letter is privileged as regards the Q. B. Div. 354, per Bowen L. J. principal, the publication to the at p. 368, 55 L. J. Q. B. 51. But clerk in the usual coarse of office it seems the vendor would be liable 231 232 DEFAMATION. making a disparaging communication about B.'s character to 0. (as, under certain conditions, we shall see that he may be), it follows, upon the tendency and analogy of the authorities now before us, that this will be no excuse if, exchanging the envelopes of two letters by inadvertence, or the like, he does in fact communicate the matter to D. It has been held otherwise, but the decision was never generally accepted, and is now overruled (m). In fact, as had been suggested in former editions of this book, it could not stand with the earlier authorities on " publication." Sending a defamatory letter to a wife about her husband is a publication : " man and wife are in the eye of the law, for many purposes, one person, and for many purposes " — of which this is one — " different persons " (x). Vicarious On the general principles of liability, a man is deemed tion. to publish that which is published by his authority. And the authority need not be to publish a particular form of words. A general request, or words intended and acted on as such, to take public notice of a matter, may make the speaker answerable for what is published in conformity to the general " sense and substance " of his request {y). A person who is generally responsible for publication (such as an editor), and who has admitted pubhcation, is if he tad reason to know that the publication : Wennhak t. Morgan publication contained, or was likely (1888) 20 Q. B. D. 635, 57 L. J. to contain, libellous matter. Q. B. 241. (u) Tompson v. Bashwood (1883) (y) Farkes v. Frescott (1869) L. 11 Q. B. D. 43, 52 L. J. Q. B.425, B. 4 Ex. 169, 38 L. J. Ex. 105, was overruled by Hebditch v. Mac- Ex. Ch. Whether the particular Ilwaine, '94, 2 Q. B. 54, 9 E. July, publication is within the authority 204, 0. A. See pp. 252-3, below. is a question of fact. AJl the (x) Wenman v. Ash (1853) 13 Court decide is that verbal dicta- C. B. 836, 22 L. J. C. P. 190, per tion or approval by the principal Maule J. But communication by need not be shown, the defendant to his wife is not a INNUENDO. 233 not as a rule bouad to disclose the name of the actual author (s). Supposing the authorship of the words complaiued of to Oonstruo- be proved or admitted, many questions may remain. words : The construction of words alleged to be libellous (we '"""^ "• shall now use this term as equivalent to " defamatory," unless the context requires us to advert to any distinction between hbel and slander) is often a matter of doubt. In the first place the Court has to be satisfied that they are capable of the defamatory meaniag ascribed to them. Whether they are so is a question of law (a). If they are, and if there is some other meaning which they are also capable of, it is a question of fact which meaning they did convey under all the circumstances of the publication in question. An averment by the plaiutifE that words not libellous in their ordinary meaning or without a special application were used with a specified libellous meaniug or application is called an innuendo, from the old form of pleading. The old cases contain much minute, not to say frivolous, technicality; but the substance of the doctrine is now reduced to something like what is expressed above. The requirement of an innuendo, where the words are not on the face of them libellous, is not affected by the aboli- tion of forms of pleading. It is a matter of substance, for a plaintiff who sues on words not in themselves libellous, and does not allege in his claim that they conveyed a libellous meaning, and show what that meaning was, has failed to show any cause of action (b). Again, explanation (2) Gibson v. Evans (1889) 23 Q. capable of sucli a meaning, see B. D. 384, 58 L. J. Q. B. 612. Mulligan v. Cole (1875) L. R. 10 [a) Capital and Counties Sank v. Q. B. 549, 44 L. J. Q. B. 153 ; Menty (1882) 7 App. Ca. 741, 52 for one on the otter side of tlie line, L. J. Q. B. 232, where the law Sart v. Wall (1877) 2 C. P. D. 146, is elaborately discussed. For a 46 L. J. C. P. 227. shorter example of words held, (J) See 7 App. Ca. 748 (Lord upon consideration, not to be Selbome). 234 DEFAMATION. is required if the words liave not, for judicial purposes, any received ordinary meaning at all, as being foreign, pro- vincial, or the like (c) . This however is not quite the same thing as an innuendo. A libel in a foreign language might need both a translation to show the ordinary mean- ing of the words, and a distinct further innuendo to show that they bore a special injurious meaning. Libellous The actionable or innocent character of words depends must be not on the intention with which they were published, but ni°law*and °^ their actual meaning and tendency when published (d). proved iu A man is bound to know the natural effect of the language he uses. But where the plaintiff seeks to put an action- able meaning on words by which it is not obviously con- veyed, he must make out that the words are capable of that meaning (which is matter of law) and that they did con- vey it (which is matter of fact) : so that he has to con- vince both the Court and the jury, and will lose his cause if he fail with either (e) . Words are not deemed capable of a particular meaning merely because it might by possi- bility be attached to them : there must be something in either the context or the circumstances that would suggest the alleged meaning to a reasonable mind (/). In scho- lastic language, it is not enough that the terms should be " patient " of the injurious construction ; they must not only suffer it, but be fairly capable of it. And it is left to the jury, within large limits, to find whether they do convey a serious imputation, or are mere rhetorical or jocular exaggeration {^). {e) Blake Odgers 109—112. Lord Bram-well, ib. 792, "I think [d] 7 App. Ca. 768, 782, 790, of. tbat the defamer is he who, of p. 787. many inferences, chooses a defa- («) Lord Blackburn, 7 App. Ca. matory one." 776. iff) Australian Newspaper Co. T. (/) Lord Selbome, 7 App. Ca. Bennett, 6 R. Sept. 36, P. C. 74i; Lord Blackburn, ib. 778; REPETITION. 235 The publication is no less the speaker's or writer's own Eepeti- act, and none the less makes him answerable, because he reports only repeats what he has heard. Libel may consist in a ™^^io^. fail- report of statements which were actually made, and on an occasion which then and there justified the original speaker in making them {g) ; slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth (A). "A man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion," and " as great an injury may accrue from the wrongful repetition as from the first pubKcation of slander ; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander " («) . Cir- cumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all. From this principle it follows, as regards spoken words, that if A. speak of Z. words actionable only with special damage, and B. repeat them, and special damage ensue from the repetition only, Z. shall have an action against B., but not against A. (k). As to the defendant's belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability. Good faith occurs as a material legal element only when we come to the exceptions from the general law that a man utters defamatory matter at his own peril. {g) JPurcell V. Sowler (1877) 2 0. 4th Eesolution reported in the iar^ P. Div. 215, 46 L. J. C.P. 308. of Northampton's case, 12 Co. Rep. [h) Watkin v. Sail (1868) L. R. 134, is not law. See per Parke J., 3 Q. B. 396, 37 L. J. Q. B. 125. 10 B. & C. at p. 275. (j) Littledale J., McPherson v. (/c) See Farkins v. Scott (1862) 1 JDaniels (1829) 10 B. & C. 263, 273, H. & C. 153, 31 L. J. Ex. 331, adopted by Blackburn J., L. R. 3 p. 223, above. Q. B. 400. The latter part of the 236 DEFAMATION. 3. — Exceptions. Exoep- ■^e now have to mention the conditions which exclude, tions: fair . ... ■, . . . comment, if present, liability for words apparently injurious to reputation. Nothing is a libel which is a fair comment on a subject fairly open to public discussion. This is a rule of common right, not of allowance to persons in any particular situa- tion {I) ; and it is not correct to speak of utterances pro- tected by it as being privileged. A man is no more privileged to make fair comments in public on the public conduct of others than to compete fairly with them in trade, or to build on his own land so as to darken their newly-made windows. There is not a cause of action vnth an excuse, but no cause of action at all. " The question is not whether the article is privileged, but whether it is a libel" (m). This is settled by the leadiag case of Camphell v. Spottiswoode («), confirmed by the Court of Appeal in Merivale v. Carson (o). On the other hand, the honesty of the critic's belief or motive is no defence. The right is to publish such comment as in the opinion of impartial bystanders, as represented by the jury, may fairly arise out of the matter in hand. What- ever goes beyond this, even if well meant, is^ libellous. The courts have, perhaps purposely, not fixed any standard of " fair criticism " (p) . One test very commonly applicable is the distinction between action and motive ; (l) See per Bowen L. J., Meri- (o) (1887) 20 Q. B. Div. 275, valev. Carson (1887) 20 Q. B. Div. 58 L. T. 331. THa must betaien at p. 282. to overrule whatever was said to (m) Lord Eslier M. E., 20 Q. B. the contrary in Semoood v. Sarri- Div. at p. 280. son (1872) L. R. 7 C. P. 606, 626, («) 3 B. & S. 769, 32 L. J. Q. B. 41 L. J. C. P. 206. 185 (1863). {p) Bowen L. J., 20 Q. B. Div. at p. 283. FAIR COMMENT. 237 public acts and performances may be freely censured as to their merits or probable consequences, but wicked or dis- bonest motives must not be imputed upon mere surmise. Such imputations, even if honestly made, are wrongful, unless there is in fact good cause for them. "Where a person has done or published anything which may fairly be said to have invited comment .... every one has a right to make a fair and proper comment ; and as long as he keeps within that hmit, what he writes is not a libel; but that is not a privilege at all. . . . Honest belief may frequently be an element which the jury may take into consideration in considering whether or not an alleged libel was in excess of a fair comment ; but it cannot in itself prevent the matter being libellous " (q). The case of a criticism fair in itself being proved to be due to unfair motives in the person making it is not known to have arisen, nor is it likely to arise, and it need not be here discussed (r). On principle it seems that the motive is immaterial ; for if the criticism be in itself justifiable, there is nothing to complain of, unless it can be said that comment proceeding from an indirect and dishonest in- tention to injure the plain tifE is not criticism at all (s). Evidence tending to show the presence of improper motives might well also tend to show that the comment was not fair in itself, and thus be material on either view ; as on the other hand to say of some kinds of criticism that there is no evidence of malice is practically equivalent to saying {q) Blackburn J., Campbell v. Sampson (1879) 5 Ex. Div. 53, 49 Spottiswoode, 32 L. J. Q. B. at p. L. J. Q. B. 120 ; and per Lord 202 ; op. Bowen L. J., 20 Q. B. Eelier M. E., 20 Q. B. Dir. at Div. at p. 284. p. 281. (r) See however Wason v. Walter (») Lord Esher M. R., Merivale (1868) L. R. 4 Q. B. at p. 90, 38 v. Carson, 20 Q. B. Div. 275, 281. L. J. Q. B. 34, and Stevens v. 238 DEFAMATION. Wlatis open to comment, matter of law. Wlietlier comment is fair, there is no evidence of the comment being otherwise than fair (t). What acts and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of technical definition. Subject-matter of this kind may be broadly classed under two types. The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs (m), of those in authority, whether imperial or local (x), in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like. Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and aU who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism ; which criticism, being itself a public act, is in like manner open to reply within commensurate limits. What is actually fair criticism is a question of fact, provided the words are capable of being understood in a (t) On this ground the actual decision in Henwood v. Harrison, note (o), p. 236, may have been right ; see however the dissenting judgment of Grove J. (m) Including the conduct at a public meeting of persons who attend it as private citizens : Davis T. Duncan (1874) L. E. 9 C. P. 396, 43 L. J. C. P. 185. A clergyman is a public officer, or at any rate the conduct of public worship and whatever is incidental thereto is matter of public interest : Kelly v. Tinting (1865) L. R. 1 Q. B. 699, 35 L. J. Q. B. 940, cp. Kelly v. Sherlock (1866) h. B,. 1 Q. B. at p. 689, 35 L. J. Q. B. 209. [x) Purcell T. Sowler, 2 C. P. Div. 215, 46 L. J. 0. P. 308. FATE COMMENT. 239 sense beyond the fair (that is, honest) expression of an matter of unfavourable opinion, however strong, on that which the libellous plaintiff has submitted to the public: this is only an tiTpM-' application of the wider principle above stated as to the ^^^^■ construction of a supposed libel (y). In literary and artistic usage criticism is hardly allowed to be fair which does not show competent intelligence of the subject-matter. Courts of justice have not the means of applying so fine a test : and a right of criticism limited to experts would be no longer a common right but a privilege. The right of fair criticism will, of course, not cover untrue statements concerning alleged specific acts of mis- conduct (z), or purporting to describe the actual contents of the work being criticised (a) . Defamation is not actionable if the defendant shows Juetifioa- that the defamatory matter was true ; and if it was so, the grmmd of purpose or motive with which it was published is irrelevant. *'^'^*^- For although in the current phrase the statement of matter " true in substance and in fact " is said to be justified, this is not because any merit is attached by the law to the disclosure of all truth in season and out of season (indeed it may be a criminal offence), but because of the demerit attaching to the plaintiff if the imputation is true, whereby he is deemed to have no ground of complaint for the fact being communicated to his neighbours. It is not that uttering truth always carries its own justification, but that the law bars the other party of redress which he does not (j/) Merivale v. Carson (1887) 20 («) Davis v. Shepstone (1886) Q. B. Div. 275, 58 L. T. 331 ; J. C. 11 App. Ca. 187, 65 L. J. Jenner v. A'Bechett (1871) L. R. 7 P. C. 51. Q. B. 11,41 L. J. Q. B. 14. Q,u. («) Merimle v. Carson (1887) 20 whether the dissenting judgment Q. B. Div. 275, 68 L. T. 331. of Lush J. was not right. 240 DEFAMATION. deserve. Tlnis the old rule is explained, that where truth is relied on for justification, it must be specially pleaded ; the cause of action was confessed, but the special matter avoided the plaintiff's right (6). "The law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess" (c). This defence, as authority and experience show, is not a favoured one. To adopt it is to forego the usual advantages of the defending party, and commit one- self to a counter-attack in which only complete success will be profitable, and failure will be disastrous. Must be What the defendant has to prove is truth in substance, Bubstan- . . tially that is, he must show that the imputation made or comp e e. pgpgg^^g^ ^tj him was true as a whole and in every material part thereof. He cannot justify part of a statement, and admit liability for part, without distinctly severing that which he justifies from that which he does not (d). What parts of a statement are material, in the sense that their accuracy or inaccuracy makes a sensible difference in the effect of the whole, is a question of fact (e). There may be a further question whether the matter alleged as justification is sufficient, if proved, to cover the whole cause of action arising on the words complained of ; and this appears to be a question of law, save so far as it depends on the fixing of that sense, out of two or more possible ones, which those words actually conveyed. It is a rule of law that one may not justify calling the editor (i) Compare the similar doctrine (d) Fleming v. Dollar (1889) 23 in trespass, wMcli lias peculiar con- Q. B. D. 388, 58 L. J. Q. B. 548. sequences. But of this in its place. («) Alexander v. North Eastern [c) Littledale J., 10 B. & 0. at R. Co. (1865) 6 B. & S. 340, 34 p. 272. L. J. Q. B. 152. JUSTIFICATION BY TRUTH. 241 of a journal a " felon editor " by showing that he was onoe convicted of felony. For a felon is one who has actually committed felony, and who has not ceased to be a felon by fuU endurance of the sentence of the law, or by a pardon ; not a man erroneously convicted, or one who has been convicted and duly discharged. But it may be for a jury to say whether calling a man a " convicted felon " imputed the quality of felony generally, or only conveyed the fact that at some time he was convicted (/). Where the libel charges a criminal offence with circumstances of moral aggravation, it is not a sufficient justification to aver the committing of the offence without those circum- stances, though in law they may be irrelevant, or relevant only as evidence of some element or condition of the offence (g) . The limits of the authority which the Court will exercise over juries in handling questions of " mixed fact and law " must be admitted to be hard to define in this and other branches of the law of defamation. Apparently it would make no difference in law that the Defen- defendant had made a defamatory statement without any belief im- belief in its truth, if it turned out afterwards to have been ™^*™'*l- true when made : as, conversely, it is certain that the most honest and even reasonable belief is of itself no justifica- tion. Costs, however, are now in the discretion of the Court. In order that public duties may be discharged without Immmiity fear, unqualified protection is given to language used in tera of the exercise of parliamentary and judicial functions. A ^enrand member of Parliament cannot be lawfully molested out- i"^g<=s- (/) Leyman t. Latimer (1878) 3 (g) Helsham v. Blackwood (1851) Ex. Div. 352, 47 L. J. Ex. 470. 11 0. B. 128, 20 L. J. C. P. 187, a very curious case. P. K 242 DEFAMATION. side Parliament by ciTil action, or otherwise, on account of anything said by him in his place in either House {h). An action will not lie against a judge for any words used by him in his judicial capacity in a court of justice («'). It is not open to discussion whether the words were or were not in the nature of fair comment on the matter in hand, or otherwise relevant or proper, or whether or not they were used in good faith. Other Parties, advocates, and witnesses in a court of justice persons in . • m i • ^ judicial are under the like protection. They are subject to the ^°g^^ " 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 prosecutor, which might, if true, explain some of the facts proved, however gross and unfounded those insinuations may be {]() ; nor for a vritness 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 (I). The only limitation is that the words must in some way have reference to the inquiry the Court is engaged in. (h) St. 4 Hen. VIII. c. 8 (Pro Odgers 188. Kioardo Strode) ; BiU of Eights, 1 [k) Munster v. Zami (1883) 11 "Wm. & M. sess. 2, o. 2, "That Q. B. Div. 588, -where authorities the freedome of speech and de- are collected, hates or proceedings in Parlyament (l) Seaman v. Nethenlift (1876) 2 ought not to he impeached or 0. P. Div. 53, 46 L. J. C. P. 128. questioned in any court or place But there is no privilege for tiiose out of Parlyament." who procure other persons to give (i) Scott T. Stansfield (1868) L. E. false and defamatory evidence : 3 Ex. 220, 37 L. J. Ex. 155 ; the Rice v. Corlidge (1876) 121 Mass. protection extends to judicial acts, 393, Ames, Sel. Ca. 616. For see the chapter of General Exoep- American views on the main ques- tions ahove, pp. 104 — 106, and tion see Ames, op. cit. 438. further illustrations ap. Blake JUDICIAL PRIVILEGE. 243 A duly constituted military court of inquiry is for this piu'pose on tlie same footing as an ordinary court of justice (ni). So is a select committee of tlie House of Commons (w). Statements coming withia this rule are said to be " absolutely privileged." The reason for pre- cluding aU 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 Reports of O ifi P PTfl duty, but not with reference 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 military discipline and duty. But the decision is not received as conclusive (o) . (m) Damkins v. Lord HoTieby (o) Dawhins t. ZordFaulet (1869) (1873-5) Ex. Ct. and H. L., L. E. L. E. 5 Q. B. 94, 39 L. J. Q. B. 8 Q. B. 255, 7 H. L. 744, 45 L. J. 63, see the dissentiqg judgment of Q. B. 8, see opinion of judges 7 Cockbum 0. J., and the notes of H. L. at p. 752 ; JDawMns v. Prince Sir James Stephen, Dig. Cr. L. Mward of Saxe Weimar (1876) 1 art. 276, and Mr. Blake Odgers, Q. B. D. 499, 45 L. J. Q. B. 567. op. cif. 195. The reference of the («) Gojin V. Donnelly (1881) 6 Judicial Committee to the case in Q. B. D. 307, 60 L. J. Q. B. 303. Sart v. Gumpaeh (1872) L. R. 4 A licensing meeting of a County P. C. 439, 464, 42 L. J. P. C. 25, Council is not a Court for this is quite neutral. They declined to ■purpose : Soi/al Aquarium Society Y. presume that such an "absolute Parkinson, '92, 1 Q. B. 431, 61 L. J. privilege " existed by the law and Q. B. 409, C. A. customs of China as to official reports to the Chinese Q-OTemment. r2 244 DEFAMATION. Qualified There is an important class of oases in wMcli a middle oT^pri'n- course is taken between the common rule of unqualified legei responsibility for one's statements, and the exceptional communi- r j cations." rules which give, as we have just seen, absolute protection to the kinds of statements covered by them. In many- relations of life the law deems it politic and necessary to protect the honest expression of opinion concemiug the character and merits of persons, to the extent appropriate to the nature of the occasion, but not necessary to prevent the person affected from showing, if he can, that an unfavourable opiuion expressed concerning him is not honest. Occasions of this kiud are said to be privileged, and communications made in pursuance of the duty or right incident to them are said to be privileged by the occasion. The term " qualified privilege " is often used to mark the requirement of good faith in such cases, in con- trast to the cases of " absolute privilege " above mentioned. Fair reports of judicial and parliamentary proceediugs are put by the latest authorities in the same category. Such reports must be fair and substantially correct in fact to begin with, and also must not be published from motives of personal ill-will ; and this although the matter reported was " absolutely privileged " as to the original utterance of it. Conditions The Conditions of immunity may be thus summed up : — priyilege. The occasion must be privileged ; and if the defendant establishes this, he will not be liable unless the plaintiff can prove {p) that the communication was not honestly made for the piirpose of discharging a legal, moral or social duty, or with a view to the just protection of some private {p) The burden of proof is not C. 73, 60 L. J. P. C. 11, J. 0. on tlie defendant to show his good This, hoTvever, is or ought to be faith : Jenoure v. Dehtiege, '91, A. elementary. PEIVILEGBD COMMUNICATIONS. 245 interest or of the public good by giving iaformation appeariag proper to be given, but from some improper motive and without due regard to truth. Such proof may consist either in external evidence of personal ill-feeling or disregard of the truth of the matter, or in the manner or terms of the communication, or acts accompanying and giving point to it, being unreasonable and improper, " in excess of the occasion," as we say. The rule formerly was, and still sometimes is, expressed " Express in an artificial manner derived from the style of pleading at common law. The law, it is said, presumes or implies malice in all cases of defamatory words ; this presumption may be rebutted by showing that the words were uttered on a privileged occasion ; but after this the plaintiff may allege and prove express or actual malice, that is, wrong motive. He need not prove malice in the first instance, because the law presumes it ; when the prestimption is removed, the field is still open to proof. But the " malice in law " which was said to be presumed is not the same as the " express malice" which is matter of proof. To have a lawful occasion and abuse it may be as bad as doing harm with- out any lawful occasion, or worse ; but it is a different thing in substance. It is better to say that where there is a duty, though of imperfect obligation, or a right, though not answering to any legal duty, to communicate matter of a certain kind, a person acting on that occasion in discharge of the duty or exercise of the right incurs no liability, and the burden of proof is on those who allege that he was not so acting {q). [q] See per Lord Blaokbum, 7 App, Ca. 787. 246 DEFAMATION. Wiat are The Occasions giving rise to privileged communications Tjrivi 1 6 srs d occasions. ^oi^J be in matters of legal _or social duty, as where a con- fidential report is made to an official superior, or in the common case of giving' a character to a servant ; or the communications may be in the way of self-defence, or the defence of an interest common to those between whom the words or writing pass ; or they may be addressed to persons in public authority with a view to the exercise of their authority for the public good.; they may also be matter published in the ordinary sense of the word for purposes of general information. Moral or As to occasions of private duty; the result of the duty. authorities appears to be that any state of facts making it right in the interests of society for one person to commu- nicate to another what he believes or has heard regarding any person's conduct or character will constitute a privi- leged occasion (r). Answers to confidential inquiries, or to any inquiries made in the course of affairs for a reasonable purpose, are clearly privileged. So are communications made by a person to one to whom it is his especial duty to give information by virtue of a standing relation between them, as by a solicitor to his client about the soundness of a secm-ity, by a father to his daughter of full age about the character and standing of a suitor, and the like. Statements made without request and apart from any special relation of confidence may or may not be privileged according to the circumstances ; but it cannot be prudently assumed that they vrill be (s). The nature of the interest {»•) See per Blackburn J. in {s) Cases of tliis kind have been Davies t. Snead (1870) L. R. 6 Q. B. very troublesome. See Blake at p. 611. Odg-ers 217-21. PRIVILEGED COMMUNICATIONS. 247 for the sake of whicli the communieation is made (as whether it be puhlio or private, whether it is one touching the preservation of life, honour, or morals, or only matters of ordinary business), the apparent importance and urgency of the occasion, and other such points of discretion for which no general rule can be laid down, will all have their weight ; how far any of them will outweigh the general presumption against officious interference must always be more or less doubtful (t). / Examples of privileged communications in self-protec- Self-pro- tion, or the protection of a common interest, are a warning given by a master to his servants not to associate with a former fellow-servant whom he has discharged on the ground of dishonesty (m) ; a letter from a creditor of a firm in liquidation to another of the creditors, conveying information and warning as to the conduct of a member of the debtor firm in its affairs («). The privilege of an occasion of legitimate self-interest extends to a solicitor writing as an interested party's solicitor in the ordinary course of his duty (y). The holder of a public office, when an attack is publicly made on his official conduct, may defend himself with the like publicity (z). Communications addressed in good faith to persons in a informa- public position for the purpose of giving them information pu^ijo""^ to be used for the redress of grievances, the punishment of S°°^- (t) See Coxhead v. Ekhards (x) Spill v. Maule (1869) Ex. (1846) 2 C. B. 569, 15 L. J. 0. P. Ch. L. E. 4 Ex. 232, 38 L. J. Ex. 278, -where the Court -was equally 138. divided, rather as to the reason- (y) Baker v. Carrick, '94, 1 Q. B. ably apparent urgency of the par- 838, 9 R. Apr. 212, C. A. tioular occasion than on any de- (z) Laughton v. Bishop of Sodor finable principle. and Man. (1872) L. R. i P. 0. 495, (m) Somermlle r. Hawkins (1850) 42 L. J. P. C. 11. 10 0. B. 583, 20 L. J. C. P. 133. 248 DEFAMATION. crime, or the security of public morals, are in like manner privileged, provided the subject-matter is within the com- petence of the person addressed («). The communication to an incumbent of reports affecting the character of his curate is privileged, at all events if made by a neighbour or parishioner ; so are consultations between the clergy of the immediate neighbourhood arising out of the same matter (6). Fair Fair reports (as distinguished from comment) are a reports. ■,• ,■ , t i> i t • • • distinct class of publications enjoying the protection of "qualified privilege " to the extent to be mentioned. The fact that imputations have been made on a privileged occasion will, of course, not exempt from liability a person who repeats them on an occasion not privileged. Even if the original statement be made with circumstances of publicity, and be of the kind known as " absolutely privi- leged," it cannot be stated as a general rule that republi- cation is justifiable. Certain specific immunities have been ordained by modern decisions and statutes. They rest on particular grounds, and are not to be extended (c). Matter (ffl) Harrison v. Bush (1855) 5 made to the Privy Council against E. & B. 344, 25 L. J. Q. B. 25. an oflBcer whom the Council is hy Mere belief that the person ad- statute empowered to remoye are in dressed is officially competent will this category ; the absolute privi- not do: Hebditch v. Macllwaine, '94, lege of judicial proceedings cannot 2 Q. B. 54, 9 R. July, 204, C. A. be claimed for them, though the In Harrison v. Bush, however it was power in question may be exer- held that it was not, in fact, ir- ciseable only on inquiry : Broctor v. regular to address a memorial Webster (1885) 16 Q. B. D. 112, 55 complaining of the conduct of a L. J. Q. B. 150. justice of the peace to a Secretary [b) Clark v. Molyneux (1877) 3 of State (see the judgment of the Q. B. Div. 237, 47 L. J. Q. B. 230. Court as to the incidents of that ic) See Davis v. Shepstone (1886) office), though it would be more J. C. 11 App. Ca. 187, 55 L. J. usual to address such a memorial to P. C. 51. the Lord Chancellor. Complaints FAIR KEPOETS. 249 not coming under any of them must stand on its own merits, if it can, as a fair comment on a subject of public interest. By statute (3 & 4 Vict. c. 9, a.d. 1840) the publication Parlia- of any reports, papers, votes, or proceedings of either ^^^em^ House of Parliament by the order or under the autho- rity of that House is absolutely protected, and so is the republication in full. Extracts and abstracts are protected if in the opinion of the jury they were published bona fide and without malice (d). Fair reports of parliamentary and public judicial pro- Parlia- ceedings are treated as privileged communications. It has debates long been settled (e) that fair and substantially accurate ^^j ^^l' reports of proceedings ia courts of justice are on this foot- ceedinga. ing. As late as 1868 it was decided (/) that the same measure of immunity extends to reports of parliamentary debates, notwithstanding that proceedings in Parliament are technically not public, and, still later, that it extends to fair reports of the quasi- judicial proceedings of a body established for public purposes, and invested with quasi- judicial authority for effecting those purposes ((/). In the case of judicial proceedings it is immaterial whether they are preliminary or final (provided that they are such (d) See Blake Odgers, op. cit. published by the same newspaper 185-6. The words of the Act, in which publishes the report are their literal construction, appear entitled to the benefit of the to throw the burden of proving general rule as to fair comment on good faith on the pubUsher, which public affairs : ib. Cp. the Ger- probably was not intended. man Federal Constitution, arts. (e) Per Cur. in TFason v. Walter, 22, 30. L. E. 4 Q. B. at p. 87. (g) Allbutt v. General Council of {/) Wason V. Walter, L. E. 4 Medical Education (1889) 23 Q. B. Q. B. 73, 38 L. J. Q. B. 34. And Div. 400, 68 L. J. Q. B. 606. editorial comments on a debate 250 DEFAMATION. as will lead to some final decision) {h) and whether contested or ex parte {h), and also whether the Court actually has jurisdiction or not, provided that it is acting in an appa- rently regular manner («). The report need not be a report of the whole proceedings, provided it gives a fair and substantially complete account of the case : but whether it does give such an account has been thought to be a pure question of fact, even if the part which is separately reported be a judgment purporting to state the facts {k) . The report must not in any case be partial to the extent of misrepresenting the judgment {I). It may be libellous to publish even a correct extract from a register of judgments in such a way as to suggest that a judgment is outstanding when it is in fact satisfied {m) ; but a correct copy of a document open to the public is not libellous without some such further defamatory addition (w). By statute " a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority" is, "if published contemporaneously with such proceedings," privileged : which seems to mean absolutely privileged, as otherwise the statute would not (A) Kimher v. Fress Association, Q. B. 517, the C. A. adhered to '93, 1 Q. B. 65, 62 L. J. Q. B. 152, their previous view (17 Q. B. Div. 4 R. 95, C. A. 636, action between same parties) (s) UsiUy. Sales (1878) 3 0. P. that a correct report of a judgment D. 319, 47 L. J. C. P. 323, where is privileged. the proceeding reported was an {V) Sayward ^ Go. v. Sayward application to a police magistrate, # Son (1886) 34 Ch. D. 198, 56 L. J. who, after hearing the facts stated, Ch. 287. declined to act on the ground of (m) Williams v. Smith (1888) 22 want of jurisdiction : LewisY. Levy Q. B. D. 134, 58 L. J. Q. B. 21. (1858) E. B. & E. 637, 27 L. J. (n) Searles v. Scarlett, '92, 2 Q. Q. B. 282. B. 66, 61 L. J. Q. B. 573, C. A., {k) Maedougall v. Knight (1889) where the publication was expressly 14 App. Ca. 194, 58 L. J. Q. B. guarded : qu. as to Williams v. 537. But in Maedougall v. Knight Smith, see '92, 2 Q. B. at pp. 62, (1890) 25 Q. B-. Div. 1, 59 L. J. 63, 64. VOLUNTEERED EEPOKTS. 251 add to tte protection already given by the common law (o) . The rule does not extend to justify the reproduction of matter in itself obscene, or otherwise unfit for general publication ijp), or of proceedings of which the publication is forbidden by the Court in which they took place. The burden of proof is on the defendant to show that the report is fair and accurate. But i£ it really is so, the plaintiff's own evidence will often prove that the facts happened as reported {q). An ordinary newspaper report furnished by a regular Volun- reporter is all but conclusively presumed, if in fact fair reports, and substantially correct, to have been published in good faith ; but an outsider who sends to a public print even a fair report of judicial proceedings containing personal im- putations invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility ; if the latter is found to be the fact, he is liable to an action (r). Newspaper reports of public meetings and of meetings of vestries, town councils, and other local authorities, and of their committees, of royal or parliamentary commissions, and of select committees, are privileged under the Law of Libel Amendment Act, 1888 (s). A public meeting is for this purpose " any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion (o) 51 & 52 Vict. u. 64, a. 3. [r) Stevens r. Sampson (1879) 5 The earlier cases are still material Ex. Diy. 53, 49 L. J. Q. B. 120. to show wliat is a fair and accurate («) 61 & 62 Vict. c. 64, s. 4. report. The iU-drawn enactment of 1881 (p) Steeley. Brann(m(l811)'L.'R. for the same purpose, 44 & 45 Vict. 7 0. P. 261 (a criminal case) ; 51 & c. 61, s. 2, is repealed by sect. 2 of 62 Vict. u. 64, s. 3. this Act. As to hoards of guar- (q) Kimber T. Press Association, dians, see TMard, v. Oliver, '91, 1 '93, 1 Q. B. 65, 62 L. J. Q. B. Q. B. 474, 60 L. J. Q. B. 219, 152, 4 E. 95, C. A. C. A. 252 DEFAMATION, of any matter of public concern, whether the admission thereto be general or restricted." The defendant must not have refused on request to insert in the same newspaper a reasonable contradiction or explanation. Moreover " the publication of any matter not of public concern, and the publication of which is not for the public benefit," is not protected {t). Excess of In the case of privileged communications of a eonfi- privilG'^6. ° ' dential kind, the failure to use ordinary means of ensuring privacy — as if the matter is sent on a post- card instead of in a sealed letter, or telegraphed without evident necessity — will destroy the privilege ; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one ()*) . But the privi- lege of a person making a statement as matter of public duty at a meeting of a public body is not affected by unprivileged persons being present who are not there at his individual request or desire, or in any way under his individual control, though they may not have any strict right to be there, newspaper reporters for example {x). It is now decided that if a communication intended to be made on a privileged occasion is by the sender's ignorance (as by making it to persons whom he thinks to have some duty or interest in the matter, but who have none), or mere negligence (as by putting letters in wrong envelopes) (*) 51 & 52 Vict. c. 64, s. 4. proviso. In a civil action on Tvliom is the (u) Williamson v. Freer (1874) burden of proof as to tMs? See L. B. 9 C. P. 393, 43 L. J. C. P. Blake Odgers 381-3, on the re- 161. pealed section of 1881, where how- {x) Pittard v. Oliver, '91, 1 Q. B. ever this qualification was by way 474, 60 L. J. Q. B. 219, C. A. of condition and not by way of EXCESS OF PKIVILEGE. 253 delivered to a person who is a stranger to that occasion, the sender has not any benefit of privilege [y). Where the existence of a privileged occasion is estab- Honest lished, we have seen that the plaiatifE must give affirmative not neoes- proof of malice, that is, dishonest or reckless iU-will (s), in r^sOTiable order to succeed. It is not for the defendant to prove belief, that his belief was founded on reasonable grounds, and there is no difference in this respect between different kinds of privileged communication (a). To constitute malice there must be somethiag more than the absence of reasonable ground for belief ia the matter communicated. That may be evidence of reckless disregard of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous ; or it may be proper for him to communicate reports or suspicions which he himself does not believe. In either case he is within the protec- tion of the rule (6). It has been found difficult to impress this distinction upon jirries, and the involved language of the authorities about "implied" and "express" malice has, no doubt, added to the difficulty. The result is that the power of the Court to vdthhold a case from the jury on the ground of a total want of evidence has on this point been carried very far (c). In theory, however, the rela- (y) Sehditch T. MacBwaine, '94, C. 73, 60 L. J. P. C. 11 (J. C). 2 Q. B. 54, 9 E. July, 204, C. A. (i) Clark v. Molyneux (1877) 3 («) A statement made recklessly Q. B. Div. 237, 47 L. J. Q. B. under the influence of e.g. gross 230, per BramweUL. J. at p. 244 ; prejudice against the plaiatiff's per Brett L. J. at pp. 247-8 ; per occupation in general, though with- Cotton L. J. at p. 249. out any personal hostility towards {c) Langhton v. Bishop of Sodor him, may be malicious : Eoyal and Man (1872) L. R. 4 P. C. 495, Aquarium Society v. Parkinson, '92, 42 L. J. P. C. 11, and authorities 1 Q. B. 431, 61 L. J. Q. B. 409, there cited; Spill v. Maule (1869) C. A. Ex. Ch. L. E. 4 Ex. 232, 38 L. J. (a) Jenoure v. Belmege, '91, A. Ex. 138. 254 DEFAMATION. Power of jury in assessing damages. Special procedure in actions for news- paper libels. tion of the Court to the jury is the same as in other ques- tions of " mixed fact and law." Similar difficulties have been felt in the law of Negligence, as we shaU see under that head. In assessing damages the jury " are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their ver- dict. They may consider what his conduct has been before action, after action, and in Court during the trial." And the verdict will not be set aside on the ground of the damages being excessive, unless the Court thinis the amount such as no twelve men could reasonably have given (d). Lord Campbell's Act (6 & 7 Yict. c. 96, ss. 1, 2), contains special provisions as to proving the offer of an apology in mitigation of damages in actions for defamation, and pay- ment into court together with apology in actions for libel in a public print (e). Limits of Where money has been paid into court in an action for torie3°m^" Hlbel, the plaintiff is not entitled to interrogate the de- action for f endant as to the sources of his information or the means libel. used to verify it (/). Bad repu- A plaintiff's general bad repute cannot be pleaded as plaintiff. P^rt of the defence to an action for defamation, for it is not directly material to the issue, but can be proved only in mitigation of damages (•). Probably an action will lie for bringing and prosecuting an action in the name of a third person maliciously (which must mean from Ul-will to the defendant in the action, and without an honest belief that the proceedings are or will be authorized by the nominal plaintiff), and without reasonable or probable cause, whereby the party against whom that action is brought sustains damage ; but certainly such an action does not lie without actual damage (s). The explanation of malice as "improper and indirect motive " appears to have been introduced by the judges of the King's Bench between sixty and seventy years ago. But " motive " is perhaps not a much clearer term. " A wish to injure the party rather than to vindicate the law " would be more intelligible (ss). law it was well settled that an R. i Cal. 583. action might be brought for ma* {r) Metropolitan Bank v. Pooley licions proceedings. (1885) 10 App. Oa. 210, S4 L. J. (p) Savile or 8miU v. Boberts Q. B. 449. (1698) 1 Ld. Eaym. 374, 379 ; 12 (s) Cotterell v. Jones (1851) 11 Mod. 208, 210, and also in 5 Mod., C. B. 713, 21 L. J. C. P. 2. Salkeld, and Carthew. {ss) Stephen (Sir Herbert) on (y) See Cooley on Torts, 187, As Malicious Prosecution, 36-39, see to British India, see Baj Chunder especiaDy at p. 37. Eoy V. Shama Soondari Debt, I. L. tj2 292 WEONGS OF FRAUD AND MALICE. rV. — Other Malicious Wrongs. Conspi- The modern action for malicious prosecution has taken ^^'^^' the place of the old writ of conspiracy and the action on the case grounded thereon (t), out of which it seems to have developed. 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, is a question of mixed history and speculation not wholly free from doubt. It seems however to be now settled for practical purposes that the conspiracy or " confederation " is only matter of in- ducement or evidence {u). "As a rule it is the damage wrongfully done, and not the conspiracy, that is the gist of actions on the case for conspiracy " («). " 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 " {y). Either the wrongful acts by which the plaintifi has suffered were such as one person could not commit alone (s), say a riot, or they were wrongful because malicious, and the malice is proved by showing that they were done in execution of a concerted design. In the singular case of Gregory v. Duke of Brunswick (a) the action was in effect for hissing the (t) F. N. B. 114 D. sgq. injury -wUch can only Ibe effected («) Mogul Steamship Company v. by the combination of many [per- M'Gregor, '92, A. 0. 25, in H. L. sons] " : Lord Hannen, '92, A. C. [x) BowenL. J. in S. C. in C. A. at p. 60. (1889) 23 Q. B. DiT. at p. 616. [a) 6 Man. & Gr. 205, 953 (1844). («/) Lord Field, '92, A. C. at The defendants justified in a plea p. 52. which has the merit of being (e) "There are some forms of amusing. CONSPIRACY, ETC. plaintiff ofE the stage of a theatre in pursuance of a malicious conspiracy between the defendants. The Court were of opiuion that in point of law the conspiracy was material only as evidence of malice, but that in point of fact there was no other such evidence, and therefore the jury 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 the act of hissing in a public theatre is, prima facie, a law- ful act ; and even if it should be conceded that such an act, though done without concert with others, if done from a malicious motive, might furnish a ground of action, yet it would be very diiSoult to infer such a motive from the insulated acts of one person unconnected with others. Whether, on the facts capable of proof, such a case of malice could be made out against one of the defendants, as, apart from any combination between the two, would warrant the expectation of a verdict against the one alone, was for the consideration of the plaintiff's counsel ; and, when he thought proper to rest hie case wholly on proof of conspiracy, we think the judge was well warranted in treating the case as one in which, unless the conspiracy were established, there was no ground for saying that the plaintiff was entitled to a verdict ; and it would have been unfair towards the defendants to submit it to the jury as a case against one of the defendants to the exclusion of the other, when the attention of their counsel had never been called to that view of the case, nor had any opportunity [been?] given them to advert to or to answer it. The case proved was, in fact, a case of conspiracy, or it was no 293 294 WRONGS OF FRAUD AND MALICE. case at all on which the Jury could properly find a verdict for the plaintiff " (i). Soon after this case was dealt with hy the Court of Common Pleas in England, the Supreme Court of New Tork laid it down (not without examination of the earlier authorities) that conspiracy is not in itself a cause of action (c). In 1889 the question was raised in a curious and important case in this country. The material facts may, perhaps, he fairly summarized, for the present piirpose, as follows : — A., B., and C. were the only persons engaged in a certain foreign trade, and desired to keep the trade in their own hands. Q. threatened, and in fact commenced, to compete with them. A., B., and C. thereupon agreed to offer specially favourable terms to all customers who would agree to deal with themselves to the exclusion of Q. and all other competitors outside the combiaation. 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 unanimously by the House of Lords, that A., B., and C. had done nothing which would have been unlawful if done by a single trader in his own sole interest, and that their action did not become unlawful by reason of being undertaken in concert by several persons for a common interest. The agreement was in restraint of trade, and could not have been enforced by any of the parties if the others had refused to execute it, but that did not make it punishable or wrongful (d). (J) PerColtmanJ., 6Man. &Gr. 58 L. J. Q. B. 465 {diss. Lord at p. 959. Eslier M. E.) ; in H. L. '92, A. C. {c) Hutehins v. Eutchins (1845) 25, 61 L. J. Q. B. 295. Lord 7 Hill 104, and BigelowL. 0. 207. Esher was apparently prepared to See Mr. Bigelow's note thereon. hold that whenever A. and B. (rf) Mogul Steamship Company v. make an agreement which, as be- McGregor (1889) 23 Q. B. Diy. 598, tween themselves, is void as in MALICIOUS HINDRANCES. 295 It is possible, however, that an agreement of this kind might in some cases be held to amount to an indictable conspiracy on the ground of obvious and excessive public inconvenience (e). At the same time, even if this be ad- mitted, it would not be easy for a court to say beforehand how far any particular trade combination was likely to have permanently mischievous results (/). It would seem to follow from the principles of the Relation modern cases that it cannot be an actionable conspiracy spiracyto for two or more persons, by lawful means, to induce a^teorfor- another or others to do what they are by law free to do or tearances J J of third to abstain from doing what they are not bound by law to persons. do. Yet the Court of Appeal has held that procuring persons — not to break a contract, but — not to renew expir- ing contracts or make a fresh contract, may be actionable if done " maliciously," without any allegation that intimida- tion or other unlawful means were used {g) . It is sub- mitted that not even the authority of the Court of Appeal will make this decision correct, and that it is not really consistent with the decision of the House of Lords in the Mogul Company's case. There may be other malicious injuries not capable of Malioioua more specific definition " where a violent or malicious act ference is done to a man's occupation, profession, or way of getting '"^*^ °'^'' ^ a livelihood " ; as where the plaintiff is owner of a decoy tion, restraint of trade, and C. suffers (e) Bowen L. J., 23 Q. B. Div. damage as a proximate conse- at p. 618. quence, A. and B. are wrongdoers (/) Fry L. J., 23 Q. B. Div. at asagainstO. This is clearly nega- p. 628. tivedbythe decision of the House {(j) Temperton v. EMSsell, '93, 1 of Lords, see the opinions of Lord Q. B. 715, 4 R. 376, 62 L. J. Q. B. Halsbury L. C, Lord Watson, 412. Lord Bramwell and Lord Hannen. 296 WRONGS OF FRAUD AND MALICE. for catching wild fowl, and the defendant, without enter- ing on the plaintiff's land, wilfully fires off guns near to the decoy, and frightens wild fowl away from it [h) . Not many examples of the kind are to be found, and this is natural ; for they have to be sought in a kind of obscure middle region where the acts complained of are neither wrongful in themselves as amounting to trespass against the plaintiff or some third person («'), nuisance (It), or breach of an absolute specific duty, nor yet exempt from search into their motives as being done in the exercise of common right in the pursuit of a man's lawful occupation or the ordinary use of his property {I) . Mere competition carried on for the purpose of gain, not out of actual malice, and not by unlawful means, such as molestation or intimi- dation, is not actionable, even though it be intended to drive a rival trader out of the field, and produce that re- sult ini). " The policy of our law, as at present declared by the legislature, is against all fetters on combination and competition unaccompanied by violence or fraud or other like injurious acts " (h). Beyond generally forbidding the use of means unlawful in themselves, the law does not impose any restriction upon competition by one trader with another with the sole view of benefiting himself. A different question would arise if there were evidence of an intention on the defendant's part to injure the plaintiff (h) Carrington v. Taylor (1809) ant's act in firing at negroes to pre- 11 East 571, 11 R. R. 270, follo-w- vent them from trading with the ing Keeik v. mdceringill (1705) 11 plaintiff's ship was of course un- East 573 in notis, 11 E. E. 273 n, lawful ^e>- se. where see Holt's judgment. And {k) Cp. Ibbotson v. Peat (1865) see Lord Field's opinion in Mogul 3 H. & 0. 644, 34 L. J. Ex. 118. Steamship Company v. McGregor, {1} See p. 135, above. '92, A. C. 25, 51, 61 L'. J. Q. B. (m) Mogul Steamship Company v. 295. McGregor, note (d). (i) Tarletony. McGawley, IFeake («) Fry L. J., 23 Q. B. Div. at 270, 3 R. R. vi. 689 : the defend- p. 628. MALICIOUS HINDRANCES. 297 ■without benefiting himself. " Thus, if several persons agree not to deal at all with a particular individual, as this could not, under ordinary circumstances, benefit the persons so agreeing " (o). Driving a public performer off the stage by marks of disapprobation which proceed not from an honest opinion of the demerits of his performance or per- son, but from private enmity, is, as we have just seen, a possible but doubtful instance of this sort of wrong {p) . Holt put the case of a schoolmaster frightening away chil- dren from attendance at a rival school (g). It is really on contract, the same principle that an action has been held to lie for maliciously (that is, with the design of injuring the plain- tiff or gaiuing some advantage at his expense) procuring a third person to break his contract with the plaintiff, and thereby causing damage to the plaiutiff (r). The precise extent and bearing of the doctriae are discussed in the final chapter of this book with reference to the difficulties that have been felt about it, and expressed in dissenting judgments and elsewhere. Those difficulties (I submit and shall in that place endeavour to prove) either disappear or are greatly reduced when the cause of action is considered as belonging to the class in which malice, in the sense of actual ill-will, is a necessary element. GreneraUy speaking, every wilful interference with the or fran- 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 (o) Lord Hannen in Mogul [q) Keehle v. Hickeringill, note Steamship Company v. McGregor, (h) last page. '92, A. C. at p. 60. ()•) LumUy t. Gye (1863) 2 E. & [p) Gregory v. Dulee of Brms- B. 216, 22 L. J. Q. B. 463 ; wick, supra, p. 292. Bowen v. Hall (1881) 6 Q. B. Div. 333, 60 L. J. Q. B. 305. 298 WRONGS OF FRAUD AND MALICE. hindered in the enjoyment thereof, an action doth lie, "which is an action upon the case " (s). But persons may as public officers he in a quasi-judicial position in which they will not be liable for an honest though mistaken exercise of discretion in rejecting a vote or the like, but will be liable for a wilful and conscious, and in that sense malicious, denial of right {t). In such cases the wrong, if any, belongs to the class we have just been considering. nance. Mainte- The WTong of maintenance, or aiding a party in litiga- tion without either interest in the suit, or lawful cause of kindred, affection, or charity for aiding him, is 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 " (ii). Hence it seems that a corporation cannot be guilty of mainte- nance (u). Actions for maintenance are in modern times rare though possible (x) ; and 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 tend to encourage them. (s) Holt C. J. in Ashby v. White (t) Tozer v. Child (1857) Ex. Ch. at p. 13 of the special report first 7 E. & B. 377, 26 L. J. Q. B. 151. printed in 1837. The action was {u) Lord Selbome, Metrop. Bank on the case merely because trespass x. Fooley (1885) 10 App. Oa. 210, ■would not lie for the infringement 218, 54 L. J. Q. B. 449. of an incorporeal right of that kind. {x) BradlaughY.N'ewdegate{WiZ) The right to petition Parliament is 11 Q. B. D. 1, 52 L. J. Q. B. 454. not a franchise in the sense that As to what will amount to a oom- any elector can compel his repre- mon interest in a suit so as to justify sentative in the House of Commons maintenance, Alabaster t. Sarness, to present a particular petition : '94, 2 Q. B. 897. Chaffers v. Goldsmid, '94, 1 Q. B. {y) Harris v. Brisco (1886) 17 186, 10 R. Feb. 219. Q. B. Div. 604, 55 L. J. Q. B. 423. 299 CHAPTEE IX. WEONGS TO POSSESSION AND PROPERTY. I. — Duties regarding Property generally. Evert kind of intermeddling with, anything which is the Absolute subject of property is a wrong unless it is either autho- r^s^ct rized by some person entitled to deal with the thing in °*o^grtY that particular way, or justified by authority of law, or (in some cases but by no means generally) excusable on the ground that it is done under a reasonable though mis- taken supposition of lawful title or authority. Broadly speaking, we touch the property of others at our peril, and honest mistake in acting for our own interest (a), or even an honest intention to act for the benefit of the true owner (J), will avail us nothing if we transgress. A man may be entitled in divers ways to deal with Title, jaa- property moveable or immoveable, and within a wider or excuse. narrower range. He may be an owner in possession, with indefinite rights of use and dominion, free to give or to sell, nay to waste lands or destroy chattels if such be his pleasure. He may be a possessor with rights either determined as to length of time, or undetermined though determinable, and of an extent which may vary from being hardly distinguishable from full dominion to being strictly limited to a specific purpose. It belongs to the (ffi) SolUns^. Fowler (1875) L.R. (1876) 1 Ex. D. 55, 45 L. J. Ex. 7 H. L. 757, 44 L. J. Q. B. 16P. 186 : in trover, Siort v. Bott (1874) (A) In trespass, Kirk v. Gregory L. E. 9 Ex. 86, 43 L. J. Ex. 81. 300 WRONGS TO POSSESSION AND PBOPERTY. law of property to tell us what are the rights of owners and possessors, and by what acts in the law they may he 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 and convenience, or under exceptional conditions for the true owner's benefit, to interfere with property to which he has no title and does not make any claim. "We have seen somewhat of this in the chapter of " General Exceptions." Again, he may be justified by a consent of the owner or possessor which does not give him any interest in the property, but merely excuses an act, or a series of acts, that otherwise would be wrongful. Such consent is known as a licence. Title Title to property, and authority to deal with property on con- 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 contract whether a right of property exists, or what is the extent of rights admitted to exist. A man obtains goods by fraud and sells them to another purchaser who buys in good faith, reasonably supposing that he is dealing with the true owner. The fraudulent re-seller may have made a contract which the original seller could have set aside, as against him, on the ground of fraud. If so, he acquires property in the goods, though a defeasible property, and the ultimate purchaser in good faith has a good title. But the circumstances of the fraud may have been such tract. AUTHORITY AND TITLE. 301 that there was no true consent on the part of the first owner, no contract at all, and no right of property what- ever, not so much as lawful possession, acquired lay the apparent purchaser. If so, the defrauder has not any lawful interest which he can transfer even to a person acting in good faith and reasonably: and the ultimate purchaser acquires no manner of title, and notwithstanding his innocence is liable as a wrong-doer (c) . Principles essentially similar, but affected in their application, and not unfrequently disguised, by the complexity of our law of real property, hold good of dealings with land (d). Acts of persons dealing in good faith with an apparent Excep- owner may be, and have been, protected in various ways protection and to a varying extent by different systems of law. The dealing™ purchaser from an apparent owner may acquire, as under i'^.^°°<^ the common-law rule of sales in market overt, a better title than his vendor had ; or, by an extension in the same line, the dealings of apparently authorized agents in the way of sale or pledge may, for the security of commerce, have a special validity conferred on them, as under our Factors Acts (e) ; or one who has innocently dealt with goods which he is now unable to produce or restore specifically may be held personally excused, saving the true owner's liberty to retake the goods if he can find them, and subject to the remedies over, if any, which may be avail- able under a contract of sale or a warranty for the person dispossessed by the true owner. Excuse of this kind is however rarely admitted, though much the same (c) SolUns T. Fowler {l%1h) L. R. (rf) See Fileher v. Itawlins (1871) 7 H. L. 757, 44 L. J. Q. B. 169 ; L. R. 7 Ch. 259, 41 L. J. Ch. 485. Cundyv. Zindsay {1878) 3 App. Ca. [e] Cbnsolidated by the Factors 459, 47 L. J Q. B. 481. Act, 1889, 52 & 63 Vict. o. 45. 302 WRONGS TO POSSESSION AND PKOPERTY. result may sometimes be arrived at on special technical grounds. The rights It would Seem that, apart from douhtful questions of dies title (which no system of law can wholly avoid), there tot^ ought not to be great diSiculty in determining what common amounts to a wrong to property, and who is the person ■y. wronged. But in fact the common law does present great difEculties ; 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 difSoulty in conceiving rights of property as having full existence or being capable of transfer and succession unless in close connexion with the physical control of something which could be passed from hand to hand, or at least a part of it delivered in the name of the whole (/). Aja owner in possession was protected against disturbance, but the rights of an owner out of possession were obscure and weak. To this day it contiQues so with regard to chattels. For many purposes the " true owner " of goods is the person, and only the person, entitled to immediate possession. The term is a short and convenient one, and may be used without scruple, but on condition of being rightly understood. Eegularly the common law protects ownership only through 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 (/) See Mr. P. W. Maitland's divers profitable comparisons of the articles on " The Seisin of Chat- rules concerning real and personal tels" and "TheMystery of Seisin," property -will he found. L. Q. B. i. 324, ii. 481, where POSSESSION AND OWNERSHIP. 303 by conveyancers it is regarded as a present estate or inte- rest. But when it has to be defended in a court of com- mon law, the forms of action treat it rather as the shadow cast before by a right to possess at a time still to come. It has been said that there is no doctrine of possession in our law. The reason of this appearance, an appearance capable of deceiving even learned persons, is that posses- sion has all but swallowed up ownership ; and the rights of a possessor, or one entitled to possess, have all but monopolized the very name of property. There is a com- mon 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, as it existed down to the middle of this century, proof of title was material only as evidence of a right to possess. And it mu^t 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 subsist- ing rights. The sweeping protection given to rights of property at this day is made up by a number of theoreti- cally 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, ia the developed system, trover. An owner who had neither possession 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 Possession law has a theory of possession, and a highly elaborated one. tention. 304 WRONGS TO POSSESSION AND PEOPEKTY. 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 property, and who is entitled to possess it, before we can tell what wrongs are capable of being committed, and against whom, by the person having physical control over it, or by others. Legal possession does not necessarily coincide either with actual physical control or the present power thereof (the " detention " of Continental terminology), or with the right to possess (constantly called " property " in our books) ; and it need not have a rightful origin. The separation of detention, possession in the strict sense, and the right to possess, is both possible and frequent. A. lends a book to B., gratuitously and not for any fixed time, and B. gives the book to his servant to carry home. Here B.'s servant has physical possession, better named custody or detention, but neither legal possession (Ji) nor the right to possess ; B. has legal and rightful possession, and the right to possess as against every one but A. ; while A. has not possession, but has a right to possess which he can make absolute at any moment by determining the bailment to B., and which the law regards for many purposes as if it were already absolute. As to an actual legal possession (besides and beyond mere detention) being acquired by wrong, the wrongful change of possession was the very substance of disseisin as to land, and is still the very sub- stance of trespass by taking and carrying away goods {de (ff) See '' AnEssay onPosses.sion a stranger; see Moon t. Robinson intlieCommon Law" by Mr. (now (1831), 2 B. & Ad. 817. The law Justice) E. S. "Wright and the about the custody of servants and present writer (Oxford : Clarendon persons in a like position has Press, 1888). TaciUated from time to time, and (A) Yet it is not certain that he has never been defined as a whole, could not maintain trespass against CUSTODY AND POSSESSION. 305 bonis asportatis), and as such it was and is a necessary condition of tlie offence of larceny at common law. The conmion law, when it must choose between denying legal possession to the person apparently in possession, and attributing it to a wrong-doer, generally prefers the latter course. In Roman law there is no such general tendency, though the results are often similar (i). Trespass is the wrongful disturbance of another person's Trespass possession of land (/) or goods. Therefore it cannot be version." committed by a person who is himself in possession (k) ; though in certain exceptional cases a dispunishable or even a rightful possessor of goods may by his own act, during a continuous physical control, make himself a mere tres- passer. But a possessor may do wrong in other ways. He may commit waste as to the land he holds, or he may become liable to an action of ejectment by holding over after his title or interest is 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 modem 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 posses- sion which we have lawfully gotten under a Kmited title ; (i) Cp. Holland, "Elements of period, or was ever attempted as to Jurisprudence," 6th ed. pp. 170 — goods. 179. (A) ^.^., a mortgagee of chattels (j) Formerly it was said that who has taken possession cannot trespass to land was a disturbance commit a trespass by removing the not amounting to disseisin, though goods, although the mortgagor it might be " vicina disseisinae," may meanwhile have tendered the which is explained by " si ad com- amount due: Johnson v. Diprose, modum uti non possit." Bracton, '93, 1 Q. B. 512, 62 L. J. Q. B. fo. 217 a. I do not think this dis- 291, 4 E. 291, 0. A. tinction was regarded in any later P. X 306 WEONGS TO POSSESSION AND PROPERTY. and the breach of these produces distinct kinds of wrong, having, in the old system of the common law, their distinct and appropriate remedies. But a strict observance of these distinctions in practice would have led to intoler- able results, and a working margin was given by beneficent fictions which (Hke 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 (/) ; on the other hand the person wronged was constantly allowed at his option to proceed against a mere trespasser as if the tres- passer had only abused a lawful or at any rate excusable possession. Alterna- In the later history of common law pleading trespass tive reme- . , i. o j. dies. and conversion became largely though not wholly inter- changeable. Detinue, the older form of action for the recovery of chattels, was not abolished, but it was generally preferable to treat the detention as a conversion and sue in trover (m), 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 possession of the land, were superseded by eject- ment, a remedy at first introduced merely for the protec- tion of leasehold interests. With all their artificial exten- sions these forms of action did not completely suffice. There might still be circumstances in which a special action on the case was required. And these complications cannot {l) See Smith v. Milles (1786), 1 certain cases, n.ff. on an executor, T. R. 475, 480, Endnote that "con- independently of any physical ap- struotive possession," as used in our prehension or transfer; (ui.) an books, includes (i.) possession exer- immediate right to possess, which oised through a servant or hcensee ; is distinct from actual possession, (ii.) possession conferred hy law, in (w) Blackst. iii. 162. WHAT IS TEESPASS. 307 be said to be even now wboUy obsolete. For exceptional oiroumstanoes may still occur ia wMch it is doubtful ■whether an action lies without proof of actual damage, or, assuming that the plaintiff is entitled to judgment, whether that judgment shall be for the value of the goods wrong- fully dealt with or only for his actual damage, which may be a nominal sum. Under such conditions we have to go back to the old forms and see what the appropriate action would have been. This is not a desirable state of the law (n), but while it exists we must take account of it. n. — Trespass. Trespass may be committed by various kinds of acts, of What which the most obvious are entry on another's land (tres- ^J^^ ^ pass quare clausum /regit), and taking another's goods t'^^^P^^s. (trespass de bonis asportatis) (o). Notwithstanding that trespasses punishable ia 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 break- ing of an inclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise immaterial, in strict- ness of law, whether there be any actual damage or not. " Every invasion of private property, be it ever so minute, is a trespass " {p) . 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 («) See per Thesiger L. J., 4 Ex. tenant for years or other interest Div. 199. not freehold. (o) The exact parallel to tres- {p) EnticTc v. Oarrington, 19 St. ■pa.sa de bonis asportatis is oi covlcss Tr. 1066. "Property" here, as not trespass qu. cl. fr. simply, but constantly in our books, really trespass amounting to a disseisin . means possession or a right to pos- of the freeholder or ouster of the session. x2 308 Quaere concern WEONGS TO POSSESSION AND PROPERTY. whether persons who roam about common lands, not being in exercise of some particular right, are in a better position. It may be that, where the public enjoyment of such lands for sporting or other recreation is notorious, for example on Dartmoor {q), 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 expressed. But even so, persons using the land are no more than " bare licensees," and their right is of the slenderest. Loitering on a highway, not for the 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, may be a trespass against that owner (r). It has been doubted whether it is a trespass to pass over lAiuuciu- i^^^ without touching the soil, as one may in a balloon, balloons qj. ^q cause a material object, as shot fired from a gun, to pass over it. Lord Ellenborough thought it was not in itself a trespass " to interfere with the column of air superincumbent on the close," and that the remedy would be by action on the case for any actual damage : though he had no difiiculty in holding that a man is a trespasser who fires a gun on his own land so that the shot fall on his neighbour's land (s). Fifty years later Lord Blackburn inclined to think differently {t), and his opinion seems (j) As a matter of fact, the Dart- (s) FicTcering v. Mudd (1815) 4 moor hunt has an express licence Camp. 219, 221, 16 R. R. 777. from the Duchy of Cornwall. [t) Kenyan v. Baj-t (1865) 6 B. ()■) Harrison v. Dulce of Rutland, & S. 249, 252, 34 L. J. K. C. 87 ; '93, 1 Q. B. 142, 62 L. J. Q. B. and see per Fry L. J. in JFands- 117, 4 R. 155, C. A. worth Soard of Works v. United WHAT IS TRESPASS. 309 the better. Clearly there can be a wrongful entry on land below the surface, as by mining, and in fact this kind of trespass is rather prominent in our modern books. It does not seem possible on the principles of the common law to assign any reason why an entry at any height above the surface should not also be a trespass. The improbability of actual damage may be an excellent practical reason for not suing a man who sails over one's land in a balloon ; but this appears irrelevant to the pure legal theory. Tres- passes clearly devoid of legal excuse are committed every day on the surface itself, and yet are of so harmless a kind that no reasonable occupier would or does take any notice of them. Then one can hardly doubt that it might be a nuisance, apart from any definite damage, to keep a balloon hovering over another man's land : but if it is not a trespass in law to have the balloon there at all, one does not see how a continuing trespass is to be committed by keeping it there. Again, it would be strange if we could object to shots being fired across our land only in the event of actual injury being caused, and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property. The doctrine suggested by Lord EUenborough's dictum, if generally accepted and acted on, would so far be for the benefit of the public service that the existence of a right of "innocent passage" for projectiles over the heads and lands of the Queen's subjects would increase the somewhat limited facilities of the land forces for musketry and artillery practice at long ranges. But we are not aware that such a right has in fact been claimed or exercised. Trespass by a man's cattle is dealt with exactly like trespass by himself ; but in the modern view of the law Telephone Co. (1884) 13 Q. B. Div. where statutory interests in land 904, 927, 53 L. J. Q. B. 449. It are conferred for special purposes, may be otherwise, as in that case, 310 WRONGS TO POSSESSION AND PEOPEETY. 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 (m). 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 a nuisance (v). Trespass Trespass to goods may be committed by taking posses- sion of them, or by any other act "in itself immediately injurious" to the goods in respect of the possessor's interest («), as by killing (y), beating (s), or chasing (a) animals, or defacing a work of art. Where the possession is changed the trespass is an aspoj-tation (from the old form of pleading, cepif et asportavit for inanimate chattels, abduxit for animals), and may amount to the offence of theft. Other trespasses to goods may be criminal offences under the head of malicious injury to property. The current but doubtful doctrine of the civil trespass being " merged in the felony " when the trespass is felonious has been considered in an earlier chapter (6). Authority, so far as known to the present writer, does not clearly show whether it is in strictness a trespass merely to lay hands on another's chattel without either dispossession (c) or actual damage. By the analogy of trespass to land it seems that it must be so. There is no doubt that the least actual damage would be enough {d). And cases are conceivable (m) Chapter XII. "below. (a) A form of writ is given for (v) Lemmon v. Webh, '94, 3 Ch. 1, ctasing the plaintifE'e sbeep with 7 E. July, 111, afEd. m H. L. dogs, S. N. B. 90 L. ; so for Nov. 27, 1894. shearing the plaiutifi's sheep, ih. [x] Blaokst. iii. 153. 87 G. (y) Wright v. Ramscot, 1 Saund. (}) P. 185, above. 83, 1 Wms. Saund. 108 (trespass (c) See Gaylard v. Morris (1849) for killing a mastiff). 3 Ex. 695, 18 L. J. Ex. 297. (z) Sand v. Sexton, 3 T. E. 37 {d) "Scratching the panel of a (trespass fi rf «)-)»is for beating the carriage would be a, trespass," plaintiflE's dog). Alderson B. iu Fouldes v. Wil- INJURIES TO KEVEESION. 311 in whioli the power of treating a mere unauthorized touch- ing as a trespass might he 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 (e). III. — Injuries to Reversion. A person in possession of property may do wrong by Wrongs to refusing to deliver possession to a person entitled, or by not in pos- otherwise assuming to deal with the property as owner or ^*^^'^°"- adversely to the true owner, or by dealing with it under colour of his real possessory title but in excess of his rights, or, where the nature of the object admits of it, by acts amounting to destruction or total change of character, such as breaking up land by opening mines, burning wood, grinding corn, or spinning cotton into yarn, which acts however are only the extreme exercise of assumed dominion. The law started from entirely distinct con- ceptions of the mere detaining of property from the person entitled, and the spoUing or altering 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 writ of debt, which was precisely similar in form to the writ of right) loughhy, 8 M. & W. 549. In Kirlc Dioey on Parties, 345. In one V. Gregory (1876) 1 Ex. D. S5, the way " reversioner" would be more trespass complained of was almost correct than " owner" or " general nominal, but there was a complete owner," for the person entitled to asportation while the intermeddling sue in trover or prosecute for theft lasted. is not necessarily dominus, and the (e) See F. N. B. 86-88, passim. dominus of the chattel may be dis- (/) As to the term " reversionary qualified from so suing or prose- interest" applied to goods, cp. cuting. 312 WRONGS TO POSSESSION AND PROPEETY. for goods; to this must be added, in special, but once frequent and important cases, replevin {g). For tlie latter the writ of waste (as extended by the Statutes of Marl- bridge and Grlouoester) was available as to land ; later this was supplanted by an action on the case {h) " in the nature of waste," and in modern times the power and remedies of courts of equity have been found still more effectual («') . The process of devising a practical remedy for owners of chattels was more circuitous; they were helped by an action on the case which became a distinct species under the name of trover, derived from the usual though not necessary form of pleading, which alleged that the defendant found the plaintiff's goods and converted them to his own use {k). The original notion of conversion in personal chattels answers closely to that of ivaste in' tenements; but it was soon extended so as to cover the whole ground of detinue (l), and largely overlap trespass; (g) It seems useless to say more (k) Blaokst. iii. 152, cf. tlie of replevin here. The curious judgment of Martin B. in Bur- reader may consult Mennie v. Blake roughes v. Bayne (1860) 6 H. & N. (1856) 6 E. &B. 842, 25 L. J. Q. 296, 29 L. J. Ex. 185, 188; and as B. 399. Por the earliest form to the forms of pleading, Bro. Ah. of writ of entry see Close Rolls, Accion sur le Case, 103, 109, 113, vol. i. p. 32. Blackstone is wrong and see Littleton's remark in 33 in stating it to have been older H. VI., 27, pi. 12, an action of than the assizes. detinue where a finding by the de- (A) Under certain conditions fendant was alleged, that " this waste might amount to trespass, declaration per inventionem is a new liitt. B. 71, see more in sect. vii. of found HaJiday"; the case istrans- the present chapter. lated by Mr. Justice "Wright in (i) For the history and old law, Pollock and "Wright on Possession, see Co. Litt. 63, 54 ; Blackst. ii. 174. 281, ui. 225; notes to Greene v. {I) Martin B., Z. c., whose phrase Cole, 2 "Wms. Saund. 644; and " in very ancient times " is a Uttle Woodhouse-7. Walker (1880), 5 Q. B. misleading, for trover, as a settled D. 404. The action of waste proper common form, seems to date only could be brought only " by him from the 16th century; Reeves that hath the immediate estate of Hist. Eng. L. iv. 626. inheritance," Co. Litt. 53 «. WASTE. a mere trespasser whose acts would have amounted to conversion if done by a lawful possessor not being allowed to take exception to the true owner " waiving the trespass," and professing to assume in the defendant's favour that his possession had a lawful origin. IV.— Waste. Waste is any unauthorized act of a tenant for a freehold Waste, 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 con- sist in loss of market value ; an alteration not otherwise mischievous may be waste in that it throws doubt on the identification of the property, and thereby impairs the evidence of title. It is said that every 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 (to). But modern authority does not bear this out ; " in order to prove waste you must prove an injury to the inherit- ance " either " in the sense of value " or " in the sense of destroying identity " (m). 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 im- proving the land — clearing wild woods for example — which in England, or even in the Eastern States, would be manifest waste (o). As to permissive waste, i.e., suffer- ing the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon bim by the (m) "If the tenant build anew («) Jones v. Chappell (1875) 20 house, it is waste ; and if he suffer Eq. 639, 540-2 (Jessel M. E.) ; it to be wasted, it is a new waste." Meux v. Cobley, '92, 2 Oh. 253, 61 Co. Litt. 63 a. L. J. Oh. 449. (o) Cooley on Torts, 333. 313 314 WEONGS TO POSSESSION AND PROPERTY. instrument creating his estate ; otherwise he is not {p). It seems that it can in no case be waste to use a tenement in an apparently reasonable and proper manner, " having regard to its character and to the purposes for which it was iatended to be used" (5-), whatever the actual con- sequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent knowledge and assent of the owner of the inheritance, the Court will make all reasonable pre- sumptions in favour of referring acts so done to a lawful origin (r). Destructive waste by a tenant at will may amount to trespass, in the strict sense, against the lessor. The reason will be more conveniently explained here- after {s) . Modern In modern practice, questions of waste arise either waste : between a tenant for life (i) and those in remainder, or ^nan s o ^g|;-^ggj^ 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 various as the uses, agricxiltural, commercial, or manufacturing, for which the tenement may be let and occupied. With regard to timber, it is to be observed (p) Se Cartwright, Avis v. New- Ch. 262. man (1889) 41 Ch. D. 532, 58 [r] Elias v. Snowdon Slate Quar- L. J. Ch. 590. An equitable ries Co. (1879) 4 App. Ca. 454, 465, tenant for life is not liable for 48L. J. Ch. 811. permissive waste : Powys v. ISla- (s) See below in sect. "vii. of this grave (1854) 4 D. M. Gr. 448 ; Se chapter. HotchTcys, Freke v. Calmady (1886) [t) In the United States, where 32 Ch. D. 408, 55 L. J. Ch. 546. tenancy in dower is stiU common, (j) Manchester Bonded Warehouse there are many modem decisions Co.Y. Carr (1880) 5 C. P. D. 507, on questions of waste arising out of 512, 49 L. J. C. P. 809 ; following such tenancies. See Cooley on Torts Saner v. BiUon (1878) 7 Ch. D. 815, 333, or Scribner on Dower (2nd ed. 821, 47 L. J. Ch. 267 ; cp. Job v. 1883) i. 212—214 ; u. 795 sgq. Fotton (1875) 20 Eq. 84, 44 L. J. 315 WASTE. that there are " timher estates " on whioh wood is grown for the purpose of periodioal cutting and sale, so that "cutting the timher is the mode of cultivation" (m). On such land cutting the timher is equivalent to taking a crop ofi arable land, and if done in the usual course is not waste. A tenant for life whose estate is expressed to be without impeachment of waste may freely take timher and minerals for use, but, unless with further specific authority, he must not remove timber planted for orna- ment (save so far as the cutting of part is required for the preservation of the rest) (a?) open a mine in a garden or pleasure-ground, or do like acts destructive to the indi- vidual character and amenity of the dwelling-place (y). The commission of such waste may be restrained by in- junction, without regard to pecuniary damage to the inheritance : but, when it is once committed, the normal measure of damages can only be the actual loss of value (s). Further details on the subject would not be appropriate here. They belong rather to the law of Eeal Property. As between landlord and tenant the real matter in Landlord dispute, in a case of alleged waste, is commonly the extent tenant. (w) As to the general law con- (y) Waste of this kind was known cerning timber, and its possible as "equitable waste," the oommis- variation by local custom, see the sion of it by a tenant unimpeach- judgment of Jessel M. E,., Sony- able for waste not being treated as wood Y. Smywood (1874) 18 Eq. wrongful at oonunon law ; see now 306, 309, 43 L. J. Ch. 652, and 36 & 37 Vict. c. 66 (the Supreme Dashwood v. Magniae, '91, 3 Ch. Court of Judicature Act, 1873), 306, 60 L. J. Ch. 809, 0. A. s. 25, sub-s. 3. {x) See Baker v. Sebright (1879) (z) Bubb v. Telverton (1870) 10 13 Ch. D. 179, 49 li. J- Ch. 65 ; Eq. 465. Here the tenant for life but it seems that a remainderman had acted in good faith under the coming in time would be entitled belief that he was improving the to the supervision of the Court in property. Wanton acts of destruc- such case ; 13 Ch. D. at p. 188. tion would be very differently treated. 316 WRONGS TO POSSESSION AND PEOPEETT. 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 com- mitted (and under the old procedure was no less remedi- able by the appropriate action on the case) because it is also a breach of the tenant's contract [a). Since the Judicature Acts it is impossible to say whether an action alleging misuse of the tenement by a lessee is brought on the contract or as for a tort {b) : doubtless it would be treated as an action of contract if it became necessary for any purpose to assign it to one or the other class. Conver- sion: rela- tion of trover to trespass. Y. — Conversion. Conversion, according to recent authority, may be de- scribed as the wrong done by " an unauthorized act which deprives another of his property permanently or for an indefinite time " (c). Such an act may 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 additions) does not concern us here. The " property " of which the plaintiff (3) 2 Wms. Saund. 646. (J) E.g. Tucker Y. Linger (1882) 21 CL. Div. 18, 61 L. J. Ct. 713. (c) Bramwell B., adopting the expression of Bosanquet, arg., Siort v. Bott (1874) L. R. 9 Ex. 86, 89, 43 L. J. Ex. 81. All, or nearly all, the learning on the sub- ject down to 1871 is collected (in a somewhat fonnless manner it must be allowed) in the notes to Wilira- ham V. Snow, 2 Wms. Saund. 87. CONVERSION. 317 is deprived — the subjeot-matter of the right which is violated — must be something which he has the immediate right to possess ; only on this condition could one main- tain 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 {d). 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 (e). As under the Judicature Acts the difference of form between trover and a special action which is not trover does not exist, there seems to be no good reason why the idea and the name of conversion should not be extended to cover these last-mentioned cases. On the other hand, the name has been thought alto- What gether objectionable by considerable authorities (/) : and to conver- 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 (d) Lordx. Price (1874) L. E. 9 Cottpe Co. v. Maddick, '91, 2 Q. B. Ex. 54, 43 L. J. Ex. 49. 413, 60 L. J. Q. B. 676, which (e) Mean v. L. ^ S. W. R. Go. assumes that a bailor for a term (1862) 11 C. B. N. S. 850, 31 L. J. has no remedy against a stranger C. P. 220. This appears to have who injures the chattel. been overlooked in the reasoning if (/) See 2 Wms. Saund. 108, and not in the decision of the Court in per Bramwell L. J., 4 Ex. D. 194. 318 WRONGS TO POSSESSION AND PEOPEETY. delivery from tlie defendant, who used Hs goods, or whether they were used at all ; the essence of the injury was that the use and possession were dealt with in a manner adverse to the plaintiff and inconsistent with his right of dominion. The grievance is the unauthorized assumption of the powers of the true owner. Actually dealing with another's goods as owner for however short a time and however limited a purpose (g) 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 (A). It makes no difference that such acts were done under a mistaken but honest and even reasonable supposition of being lawfully entitled (g), or even with the iutention of benefiting the true owner (h) ; nor is a servant, or other merely ministerial agent, excused for assuming the do- minion of goods on his master's or principal's behalf, though he " acted under an unavoidable ignorance and for his master's benefit" («'). It is common learning that a refusal to deliver possession to the true owner on demand is evidence of a conversion, but evidence only (k) ; that is, one natural inference i£ I hold a thing and will not deliver it to the owner is that I repudiate his ownership and mean to exercise dominion in despite of his title either on my own behalf or on some other claimant's. " If the refusal is in (g) Sollinsy. Fowler {1875) Jj.'R. mitted to be good law in iToKims v. 7 H. L. 757, 44 L. J. Q. B. 169. Fowler, L. E. 7 H. L. at pp. 769, Cashing a biU in good faith on a 795, and foUo-wed in Barker v. forged indorsement is a conversion : Furlong, '91, 2 Ch. 172, 60 L. J. Kleinwort v. Comptoir d'Fscompte, Ch. 368. Cp. Fine Art Society v. '94, 10 R. July, 277. TTnion Banlc of London (1886) 17 (A) SiortY. Bott, L. E. 9 Ex. 86, Q. B. Div. 705, 56 L. J. Q. B. 70. 43 L. J. Ex. 81. {k) Balme v. Sutton, Ex. Ch. (i) Stephens v. Elwall (1815) 4 (1833) 9 Bing. 471, 475. M. & S. 259, 16 R. E. 458 ; ad- EVIDENCE OP CONVERSION. 319 disregard of the plaintifE's title, and for the purpose of claiming the goods either for the defendant or for a third person, it is a conversion" (l). But this is not the only possible inference and may not be the right one. The refusal may be a qualified and provisional one : the pos- sessor may say, " I am willing to do right, but that I may be sure I am doing right, give me reasonable proof that you are the true owner " : and such a possessor, even if over-cautious in the amount of satisfaction he requires, can hardly be said to repudiate the true owner's claim (?«) . Or a servant having the mere custody of goods under the possession of his master as bailee — say the servant of a warehouseman having the key of the warehouse — may reasonably and Justifiably say to the bailor demanding his goods : " I cannot deliver them without my master's order " ; and this is no conversion. " An unqualified re- fusal is almost always conclusive evidence of a conversion ; but if there be a qualification annexed to it, the question then is whether it be a reasonable one" (n). Again there may be a wrongful dealing with goods, not under an adverse claim, but to avoid having anything to do with them or with their owner. Where a dispute arises between the master of a ferryboat and a passenger, and the master refuses to carry the passenger and puts his goods on shore, this may be a trespass, but it is not of itself a conver- sion (o). This seems of little importance in modern prac- tice, but we shall see that it might stni affect the measure of damages. In many cases the refusal to deliver on demand not only {l) Opinion of Blackburn J. in («) Alexander v. Southey (1821) 6 Hollins y. Fowler, L. R. 7 H. L. B. & A. 247, per Best J. at p. 230. at p. 766. (o) Fouldes v. Willoughby, 8 M. & (m) See Burroughes t. Bayne W. S40 ; op. Wilson y. McZaughlin (1860) 5 H. & N. 296, 29 L. J. Ex. (1871) 107 Mass. 587. 186, 188, supra, p. 312. 320 WRONGS TO POSSESSION AND PEOPEETY. 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 [p). By a conversion the true owner is, in contemplation of law, totally deprived of his goods ; therefore, except in a few very special cases {q), the measure of damages in an action of trover was the full value of the goods, and by a satisfied judgment (r) for the plaintiff the property in the goods, if they still existed in specie, was transferred to the defendant. Acts not The mere assertion of a pretended right to deal with amount- ing to con- goods or threatening to prevent the owner from dealing with Tersion. -fchem is not conversion, though it may perhaps be a cause of action, if special damage can be shown (s) ; indeed it is doubtful whether a person not already in possession can commit the wrong of conversion by any act of interference limited to a special purpose and falling short of a total assumption of dominion against the true owner (^). 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 [p) Miller V. Dell, '91, 1 Q. B. {r) Not by judgment without 468, 60 L. J. Q. B. 404, C. A. eatisfaotion ; Ex parte Drake (1877) {q) See per Bramwell L. J., 3 6 Ch. Div. 866, 46 L. J. Bk. 29 ; Q. B. D. 490; JSiort-v. L.^- N. TF. following Brinsmead v. Harrison M. Co. (1879) 4 Ex. Div. 188, 48 (1871) L. R. 6 C. P. 684, 40 L. J. L. J. Ex. 545, where however C. P. 281. Bramwell L. J. was the only (s) England v. Cowley (1873) L. member of the Court who was clear R. 8 Ex. 126, see per Kelly C. B. that there was any conversion at at p. 132, 42 L. J. Ex. 80. all. {t) See per BramweU B. and Kelly 0. B. ib. 131, 132. ^ CONVERSION UNDER MISTAKE. 321 witliin the analogy of slander of title. But if a wrongful sale is followed up by delivery, both the seller (m) and the buyer (x) are guilty of a conversion. Again, a mere col- lateral 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 (y) . A merely ministerial dealing with goods, at the request Dealings of an apparent owner having the actual control of them, authority- appears not to be conversion (z) ; but the extent of this °enT^^' limitation or exception is not precisely defined. The point owner, is handled in the opinion delivered to the House of Lords in Hollins v. Foider («) 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 hona fide belief that the custodian is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the («) Lancashire Waggon Co. v. Sealiy. Carey {pissXnoWj. Fitzhugh (1861) 6 H. & N. 502, 30 (z) Eeald v. Carey (1852) 11 0. B. D. J. Ex. 231 (action by bailor 977, 21 L. J. 0. P. 97 ; but this is against sherifE for selling the goods really a case of the class last men- absolutely as goods of the bailee tioned, for the defendant received under a Ji. fa. ; the decision is on the goods on behalf of the true the pleadings only) . owner, and was held to have done (x) Cooper v. Willomait (1846) 1 nothing with them that he might 0. B. 672, 14 L. J. C. P. 219. not properly do. (jt) Jones V. Sough. (1879) 5 Ex. («) L. R. 7 H. L. at pp. 766— Div. 115, 49 L.J. Ex. 211; cp. 768. P. Y 322 WRONGS TO POSSESSION AND PROPERTY. person in possession (b), if he was a finder of the goods, or intrusted with their custody." This excludes from pro- tection, and was intended to exclude, such acts as those of the defendants in the case then at bar : they had bought cotton, innocently and without negligence, from a holder who had obtained it by fraud, and had no title, and they had immediately resold it to a firm for whom they habitually acted as cotton brokers, not making any profit beyond a broker's commission. Still it appeared to the majority of the judges and to the House of Lords that the transaction was not a purchase on account of a certain customer as principal, but a purchase with a mere ex- pectation of that customer (or some other customer) taking the goods ; the defendants therefore exercised a real and efiective though transitory dominion : and having thus assumed to dispose of the goods, they were liable to the true owner (c) . 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 (d). Acts of But what of the servants of those purchasers, who handled the cotton under their authority and apparent title, and by making it into twist wholly changed its form ? Assuredly this was conversion enough in fact and in the common sense of the word ; but was it a conversion in law? Could any one of the factory hands have been made the nominal defendant and liable for the whole value of the cotton ? Or if a thief brings corn to a miller, and the miller, honestly taking him to be the true owner, grinds the corn (J) Observe that this means phy- to sale and delivery by an auo- sical possession ; in some of the tioneer without notice of the cases proposed it "would be accom- apparent owner's want of title: panied by legal possession, in others Consolidated Co. v. Curtis, '92, 1 not. Q. B. 495, 61 L. J. Q. B. 325. (c) See per Lord Cairns, 7H. L. {d) Blackburn, J., 7 H. L. 764, at p. 797. This principle applies 768. CONVERSION BY BAILEES. 323 into meal and delivers the meal to him without notice of his ■want of title ; is the miUer, or are his servants, liable to the true owner for the value of the corn ? Lord Blackburn thoughtthese questions open and doubtful (e) . There appears to be nothing in the authorities to prevent it from being excusable to deal with goods merely as the servant or agent of an apparent owner in actual possession, or under a con- tract with such owner, according to the apparent owner's direction ; neither the act done, nor the contract (if any), purportiag 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 beiug obeyed in the honest (/) belief that he is so entitled. It might or might not be convenient to hold a person excused who in good faith assumes to dispose of goods as the servant and under the authority and for the benefit of a person apparently entitled to possession but not already in possession. But this could not be done without overruling accepted authorities {g). A bailee is prima facie estopped as between himself and Ee- the bailor from disputing the bailor's title {h). Hence, as by ba5ees. he cannot be liable to two adverse claimants at once, he is also justified in redelivering to the bailor in pursuance of [e) See last note. of liability. Behaviour grossly in- (/) Should we say "honest and consistent with the common pru- reasonable " f It seems not; a dence of an honest man might person doing a ministerial act of here, as elsewhere, be evidence of this kind honestly but not rea- bad faith. Bonably ought to be liable for {g) SeeStephens y. Slwall (1815) negligence to the extent of the 4 M. & S. 259 ; 16 R. E. 458 ; actual damage imputable to his Barker ■'^'^''^ man— the average prudent man, or, as our books rather affect to say, a reasonable man — standing in this or that man's shoes {k). This idea so pervades the mass of our authorities that it can be appreciated only by some familiarity with them. In the year 1837 it was formally and decisively enounced by the Court of Common Pleas (l). The action was against an occupier who had built a rick of hay on the verge of his own land, in such a state that there was evident danger of fire, and left it there after repeated warning. The hayrick did heat, broke into flame, and set fire to buildings which in turn communi- cated the fire to the plaintiil's cottages, and the cottages were destroyed. At the trial the jury were directed " that the question for them to consider was whether the fire had been occasioned by gross negligence on the part of the [j) As in Vaughan v. Mmlove [Ic) Compare the Aristotelian (1837) 3 Bing. N. C. 468, where use of o ppoyiju,!!! or o inrouSaros in the defendant, after being warned determining the standard of moral that hia haystack was Hkely to duty. take fire, said he would chance it {1} Vaughan v. Menlove (1837) (pp. 471, 477). 3 Bing. N. C. 468. THE STANDARD OF PEUDENCE. 395 defendant," and " that lie was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances." A rule for a new trial was obtained " on the ground that the jury should have been directed to consider, not whether the defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion ; but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest [m) order of intelligence." The Court unani- mously declined to accede to this view. They declared that the care of a prudent man was the accustomed and the proper measure of duty. It had always been so laid down, and the alleged uncertainty of the rule had been found no obstacle to its application by juries. It is not for the Court to define a prudent man, but for the jury to say whether the defendant behaved like one. " Instead of saying that the liability for negligence should be co- extensive with the judgment of each individual — which would be as variable as the length of the foot of each individual — we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe " (m). In our own time the same principle has been enforced in the Supreme Court of Massachusetts. " If a man's conduct is such as would be reckless in a man of ordinary prudence, it is reckless in him. Unless he can bring himself within some broadly defined exception to general rules, the law deliberately leaves his personal equation or idiosyncracies out of account, [m) TUs misrepresents the rule required, of law: not tlie highest intelli- {n) Tindal 0. J., 3 Bing. N. 0. gence, but intelligence not belo-w at p. 475. the average prudent man's, being 396 NEGLIGENCE. and peremptorily assumes that he has as much capacity to judge and to foresee consequences as a man of ordinary prudence would have in the same situation " (o). piligenee j^ -^ij^l })q remembered that the general duty of diligence compe- includes the particular duty of competence in cases 'where the matter taken in hand is of a sort requiring more than the knowledge or ability which any prudent man may be expected to have. The test is whether the defendant has done " all that any skilful person could reasonably be required to do in such a case " (p). This is not an excep- tion or extension, but a necessary application of the general rule. For a reasonable man vsdll know the bounds of his competence, and will not intermeddle (save in extraordinary emergency) where he is not competent (q). II. — Ei'idence of Negligence. Negli- Due care and caution, as we have seen, is the diligence question of a reasonable man, and includes reasonable competence fact^Mid ^"^ cases where special competence is needful to ensure law. safety. Whether due care and caution have been used in a given case is, by the nature of things, a question of fact. But it is not a pure question of fact in the sense of being open as a matter of course and without limit. Not every one who suffers harm which he thiaks can be set down to his neighbour's default is thereby entitled to the chance of a jury giving him damages. The field of inquiry has limits defined, or capable of definition, by legal principle and judicial discussion. Before the Court or the jury can proceed to pass upon the facts alleged by the plaintiff, the (o) Commonwealth Y . Fierce {\%Si) at pp. 845-6. 138 Mass. 165, 52 Am. Eep. 264, (p) Bayley J., 5 B. & A. at per Holmes J. See too per Bayley p. 846. J. in Jones t. Bird (1822) 5 B. & A. (?) See p. 25, above. BURDEN OF PROOF. 397 Court must he satisfied that those facts, if proved, are in law capable of supporting the inference that the defendant has failed in what the law requires at his hands. In the current forensic phrase, there must be evidence of negli- gence. The peculiar relation of the judge to the jury in our common law system has given occasion for frequent and minute discussion on the propriety of leaAdng or not leaving for the decision of the jury the facts alleged by a plaintiff as proof of negligence. Such discussions are not carried on in the manner best fitted to promote the clear statement of principles ; it is difficult to sum up their results, and not always easy to reconcile them. The tendency of modern rulings of Courts of Appeal has been, if not to enlarge the province of the jury, to arrest the process of curtailing it. Some distinct boundaries, however, are established. Where there is no contract between the parties, the Burden of burden of proof is on him who complains of negligence. He must not only show that he suffered harm in such a manner that it might be caused by the defendant's negli- gence ; he must show that it was so caused, and to do this he must prove facts inconsistent with due diligence on the part of the defendant. " Where the evidence given is equally consistent with the existence or non-existence of negligence, it is not competent to the judge to leave the matter to the jury" (r). Nothing can be inferred, for example, from the bare fact that a foot-passenger is knocked down by a carriage in a place where they have an equal right to be, or by a train at a level crossing (s). Those who pass and repass in fre- {r) ■Williams J. in Sammack v. 0. P. 333 ; Waleelin v. Z. # 8. W. White (1862) 11 C. B. N. S. 588, iJ. Co. (1886) 12 App. Ca. 41. 31 L. J. 0. P. 129 ; Cottmv. Wood (s) Wakelin v. Z. ^ S. W. S. Co., (1860) 8 C. B. N. S. 668, 29 L. J. last note. 398 NEGLIGENCE. quented roads are bound to use due care, be it on foot or on horseback, or with carriages : and before one can complain of another, he must show wherein care was wanting. " When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale " (^). It cannot be assumed, in the absence of all explanation, that a train ran OTer a man more than the man ran against the train (u) . If the car- riage was being driven furiously, or on the wrong side of the road, that is another matter. But the addition of an ambiguous circumstance will not do. Thus in Cotton v. Wood (») the plaintiff's wife, having safely crossed in front of an omnibus, was startled by some other carriage, and ran back ; the driver had seen her pass, and then turned round to speak to the conductor, so that he did not see her return in time to pull up and avoid mischief. The omnibus was on its right side and going at a moderate pace. Here there was no evidence of negli- gence on the part of the defendant, the owner of the omnibus (x) . His servants, on the plaintiff's own showing, had not done anything inconsistent with due care. There was no proof that the driver turned round to speak to the conductor otherwise than for a lawful or necessary purpose, or had any reason to apprehend that somebody would run under the horses' feet at that particular moment. Again if a horse being ridden («/) or driven (s) in an ordinary manner runs away without apparent cause, and in spite of (<) Erie C. J., Cotton v. TFood, («/) Sammack y. White (1862) 11 note (r). 0. B. N. S. 588, 31 L. J. C. P. 129. (m) Lord Halsbury, 12 App. Ca. (z) Manzoni v. Douglas (1880) 6 at p. 45. Q,. B. D. 145, 50 L. J. Q. B. 289, [v) (1860) 8 C. B. N. S. 568, 29 wliere it was unsuccessfully at- L. J. 0. P. 333, note (r) atove. tempted to shake tlie authority of (x) It would be oonTsnient if one Sammach v. White. The cases could in these running-down cases relied on for that purpose belong on land personify the vehicle, like to a special class. a ship. WHERE CONTEACT OR UNDERTAKING. 399 the rider's or driver's efforts trespasses on the footway and there does damage, this is not evidence of negligence. The plaintiEE ought to show positively want of care, or want of skill, or that the owner or person in charge of the horse knew it to be unmanageable. " To hold that the mere fact of a horse bolting is per se evidence of negligence would be mere reckless guesswork " (a). Sometimes it is said that the burden of proof is on the plaintifE to show that he was himself using due care, and it has been attempted to make this supposed principle a guide to the result to be arrived at in cases where the defence of contributory negligence is set up. This view seems to be rather prevalent in America (6), but in the present writer's opinion it is unsound. The current of English authority is against it, and it has been distinctly rejected in the House of Lords (c). What we consider to be the true view of contributory negligence will be pre- sently explained. This general principle has to be modified where there is Where a relation of contract between the parties, and (it should contract seem) when there is a personal undertaking without a con- i'^^5^'^' tract. A coach runs against a cart ; the cart is damaged, the coach is upset, and a passenger in the coach is hurt. The owner of the cart must prove that the driver of the coach was in fault. But the passenger in the coach can say to the owner: "Tou promised for gain and reward to bring me safely to my journey's end, so far as reason- able care and skiU could attain it. Here am I thrown out on the road with a broken head. Your contract is not (b) Lindley J., 6 Q. B. D. at (c) Wakelin v. i. §■ S. W. E. Co. p. 153. (1886) 12 App. Oa. 41, 47, 51, 56 (J) E.g. Murphy v. Beane, 101 L. J. Q. B. 229, per Lord Watson Mass. 455. and Lord Fitzgerald. 400 NEGLIGENCE. performed ; it is for you to show that the misadventure is due to a cause for which you are not answerable " {d). "When a railway train runs off the line, or runs into another train, both permanent way and carriages, or both trains (as the case may be) being under the same company's control, these facts, if unexplained, are as between the company and a passenger evidence of negligence (e). In like manner, if a man has undertaken, whether for reward or not, to do something requiring special skill, he may fairly be called on, if things go wrong, to prove his competence : though if he is a competent man, the mere fact of a mishap (being of a kind that even a competent person is exposed to) would of itself be no evidence of negligence. We shall see later that, where special duties of safe keeping or repair are imposed by the policy of the law, the fact of an accident happening is held, in the same manner, to cast the burden of proving diligence on the person who is answerable for it, or in other words raises a presumption of negligence. This is said without prejudice to the yet stricter rule of liability that holds in certain cases. Things ■within de- fendant's control. Again there is a presumption of negKgence when the cause of the mischief was apparently under the control of the defendant or his servants. The rule was declared by the Exchequer Chamber in 1865 (/), in these terms : — " There must be reasonable evidence of neghgenoe. " But where the thing is shown to be under the manage- ment of the defendant or his servants, and the accident is [d) In other words (to anticipate part of a special discussion) the obligation does not become greater if we regard the liability as ex delicto instead of ex contractu ; but neither does it become less. (e) Carpue v. London ^- Brighton E. Co. (184i) 6 Q. B. 747, 751, 13 L. J. Q. B. 138 ; Skinner v. L. B. # S. C. E. Co. (1850) 5 Ex. 787. (/) Scott v. London Sock Co., 3 H. & C. 596, 34 L. J. Ex. 220. EVIDENCE AND PRESUMPTION. 401 such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonahle evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Therefore if I am lawfully and as of right {g) passing in a place where people are handling heavy goods, and goods being lowered by a crane fall upon me and knock me down, this is evidence of negligence against the employer of the men who were working the crane {h). The Court will take judicial notice of what happens in Common the ordinary course of things, at all events to the extent affairs of using their knowledge of the common affairs of life to jjotJ°ed^^ complete or correct what is stated by witnesses. Judges do not affect, for example, to be ignorant that the slipping of one passenger out oi several thousand in hurrying up the stairs of a railway station is not an event so much out of the run of pure accidents as to throw suspicion on the safety of the staircase (*'). When we have once got something more than an ambi- ^'^ ®^'" . dence guously balanced state of facts; when the evidence, if sufficient believed, is less consistent with diligence than with negli- question is gence on the defendant's part, or shows the non-perform- ^°^ ^^^' ance of a specific positive duty laid on him by statute, contract, or otherwise ; then the judgment whether the plaintiff has suffered by the defendant's negligence is a judgment of fact, and on a trial by jury must be left as ( g) That is, not merely by the no dissenting judgment was de- defendant's licence, as will be ex- livered, nor does the precise ground plained later. of dissent appear. [h) 3 H. & C. 596, Crompton, (j) Crafter v. Metrop. S. Co. Byles, Blackburn, Keating JJ., (1866) L. R. 1 C. P. 300, 35 L. J. diss. Erie C. J. and Mellor J. ; but C. P. 132. P. U D 402 NEGLIGENCE. such in' the hands of the jury {j). The question of negli- gence is one of law for the Court only where the facts are such that all reasonable men must draw the same conclusion from them (A). It is true that the rules as to remoteness of damage set some bounds to the connexion of the defend- ant's negligence with the plaintiff's loss [1). But even in this respect considerable latitude has been allowed {m). Railway accidents have for the last forty years or more been the most frequent occasions of defining, or attempting to define, the frontier between the province of the jury and that of the Court. Recent railway- cases on level crossings and "in- vitation to alight." Two considerable and weU marked groups of cases stand out from the rest. One set may be broadly described as level crossing cases, and culminated in North Eastern Railway Company v. Wanless, decided by the House of Lords in 1874 («) ; the other may still more roughly (but in a manner which readers familiar with the reports will at once understand) be called " invitation to alight " cases. These are now governed by Bridges v. North London Rail- way Company (o), another decision of the House of Lords which followed closely on Wanless's case. In neither of these cases did the House of Lords intend to lay down any new rule, nor any exceptional rule as regards railway companies : yet it was found needful a few years later to restate the general principle which had been supposed to (j) This is weU put in the judg- ment m M' Cully v. Clark (Penn- sylvania, 1861) Bigelow L. C. 559. {/c) Gardner v. Michigan Central M. -ffi. (1893) 150 U. S. 349, 361. (I) Metrop. JR. Co. v. Jackson (1877) 3 App. Ca. 193, 47 L. J. C. P. 303. (m) See Williams v. G. W. R. Co. (1874) L. R. 9 Ex. 157, 43 L. J. Ex. 105, supra, p. 38. Cp. per Lord Halsbury, 12 App. Ca. at p. 43. («) L. E. 7 H. L. 12, 43 L. J. Q. B. 186. (o) L. K. 7 H. L. 213, 43 L. J. Q. B. 151 (1873-4.) RAILWAY CASES : JUDGE AND JURY. 403 be impjigned. This was done in Metropolitan Railwmj Company v. Jackson (p). " The judge has a certain duty to discharge, and the Explana- jurors have another and a different duty. The judge has Meii\^lt. to say whether any facts have been established by evidence ^''•^■ from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when sub- mitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administra- tion of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred ; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever " {q) . " On a trial by jury it is, I conceive, undoubted that the facts are for the jury, and the law for the judge. It is not, however, in many cases practicable completely to sever the law from the facts. " But I thini it has always been considered a question of law to be determined by the judge, subject, of course, to review, whether there is evidence which, if it is believed, and the counter evidence, if any, not believed, would establish the facts in controversy. It is for the jury to say whether, and how far, the evidence is to be believed. And if the facts as to which evidence is given are such (p) 3 App. Ca. 193, 47 L. J. negligence ought to be infeiTed, 0. P. 303 (1877). tut wlietlier, as reasonable men, (j)LordCaiTns,atp. 197. Strictly tbey do infer it. " the jurors have to say not whether ud2 404 NEGLIGENCE. that from them a farther inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the judge to deter- mine, subject to review, as a matter of law, whether from those facts that farther inference may legitimately be drawn" (r). The case itself was decided on the ground that the hurt suffered by the plaintiff was not the proximate consequence of any proved negligence of the defendants ; not that there was no proof of the defendants having been negligent at all, for there was evidence which, if believed, showed mis- management, and would have been quite enough to fix on the defendant company liability to make good any damage distinctly attributable to such mismanagement as its " natural and probable " consequence (s). As between the plaintiff and the defendant, however, evidence of negligence which cannot be reasonably deemed the cause of his injury is plainly the same thing as a total want of evidence. Any one can see that a man whose com- plaint is that his thumb was crushed in the door of a railway carriage would waste his trouble in proving (for example) that the train had not a head-light. The House of Lords determined, after no small difference of learned opinions below, that it availed him nothing to prove over- crowding and scrambling for seats. The irrelevance is more obvious in the one case than in the other, but it is only a matter of degree {t). The "level In the " level crossing " group of cases we have some crossing" . ., - . , type of one crossmg a railway at a place made and provided by oases. ((-) Lord Blackburn, at p. 207. [t) Op. Founder v. N. S. E. Co., Cp. Myder \. Wombwell (1868), in '92, 1 Q. B. 385, 61 L. J. Q,. B. 136 Ex. Ch., L. R. i Ex. 32, 38 L. J. (plaintiff assaulted by persons who Ex. 8, which Lord Blackburn goes had crowded in), and Cohhy. G. W. on to cite with approval. S.. Co. '93, 1 Q. B. 459, 62 L. J.^ (s) See pp. 32, 36, above. Q. B. 335, 4 E. 283, C. A. RAILWAY CASES. the company for that purpose, and where the company is under the statutory duty of observing certain precautions. The party assumes that the line is clear ; his assumption is erroneous, and he is run down by a passing train. Here the company has not entered into any contract with him ; and he must prove either that the company did something which would lead a reasonable man to assume that the line was clear for crossing (u), or that there was something in their arrangements which made it impracticable or unreasonably difficult to ascertain whether the line was clear or not. Proof of negligence in the air, so to speak, wiU not do. " Mere allegation or proof that the company were guilty of negligence is altogether irrelevant ; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connexion whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury " (v). What may reasonably be held to amount to such proof cannot be laid down in general terms. " You must look at each case, and all the facts of the case, before you make up your mind what the railway company ought to do " {x) . But unless the plaintiff's own evidence shows that the accident was due to his own want of ordinary care (as where in broad daylight he did not look out at all {y), the tendency of modern authority is to leave the (m) As in Wanless's case, L. R. 7 # S. W. M. Co. (1886) 12 App. Ca. H. L. 12, 43 L. J. Q. B. 185, 41, 47, 56 L. J. Q. B. 229. where the gates (intended prima- («) Bowen L. J. , Dmey v. L. % rily for the protection of carriage S. W. R. Co. (1883) 12 Q. B. Diy. trafEc) were left open when they at p. 76. ought not to have been, so that the («/) Dmey v. L. ^8. W. R. Co. plaintifi was thrown ofE his guard. (1883) 12 Q. B. Div. 70, 63 L. J. («i) Lord Watson, Walcelin v. L. Q. B. 68 : a case which perhaps 405 406 NEGLIGENCE. matter very mucli at large for the jury. In Dublin, WicMou' and Wexford Railway Co. v. Slattery (z), the only point of negligence made against the railway company was that the train which ran over and killed the plaintiff's husband did not whistle before running through the station where he was crossing the line. It was night at the time, but not a thick night. Ten witnesses distinctly and positively testified that the engine did whistle. Three swore that they did not hear it. A jury having found for the plaintiff, it was held by the majority of the House of Lords that the Court could not enter a verdict for the defendants, although they did not conceal their opinion that the actual verdict was a perverse one-(»)T The ;' in- In the other group, which we have called " invitation to aUght" alight" cases, the nature of the facts is, if anythiug, less group. 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 inconvenient, or it may be dangerous, for persons of ordinary bodily ability to alight. A pas- senger bound for that station, or otherwise minded to alight, is unaware (as by reason of darkness, or the like, he well may be) of the inconvenience of the place (5), or ■belongs properly to the head of verdict could not have stood if the contributory negligence, of which accident had happened by day- more presently. Only the circum- light) , Lord Penzance, Lord stance of dayhght seems to distin- O'Hagan, Lord Selborne, and Lord guish this from Slatter's case (next Gordon ; the minority of Lord note). Hatherley, Lord Coleridge, and (z) 3 App. Ca. 1155. Nearly all Lord Blackburn. MHs v. ff. TV. the modern cases on "evidence JR. Go. (Ex. Ch. 1874) L. R. 9 C. of negligence" were cited in the P. 551, 43 L. J. C. P. 304, does argument (p. 1161). Observe that not seem consistent with this de- the question of the verdict being cisioii ; there was difEerence of against the weight of evidence was opinion in that case also, not open (p. 1162). (b) Cockle v. 8. -B. JJ. Co. (1872) {a) The majority consisted of Ex. Ch. L. E.. 7 0. P. 321, 41 Lord Cairns (who thought the L. J. 0. P. 140. EVIDENCE. 407 else is aware of it, tut takes the attendant risk rather than be carried beyond his destination. In either case he gets out as b^st l^e can, and, whether through false security, or ra 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 acoommodation, 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 backiug the train (c). It is a question of fact whether under the particular circumstances the company's servants were reasonably diligent for the accommodation of the passengers (d), and whether the passenger, if he alighted knowing the nature of the place, did so under a reasonable apprehension that he must alight there or not at all (e). All these cases are apt to be complicated with issues CompHoa- of contributory negbgence and other similar though not c'cSitrita- identical questions. We shall advert to these presently, torynegli- . , . gence, &o. 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 neg- ligence " is illustrated. Such an one is Smith v. London other and South Western Railway Company (/). The facts are, tionsof' in this country and climate, of an exceptional kind : but "/^idenoe •' ' '■' 01 negli- the case is interesting because, though distinctly within gence": the line at which the freedom of the jury ceases, that line z. ^ s. w. E. Co. (c) Siner y. G. W. R. Co. (1869) L. J. Ex. 374 (both in 1876). Ex. Ch. L. R. 4 Ex. 117, 38 L. J. (/) L. R. 5 C. P. 98, 39 L. J. Ex. 67. C. P. 68, in Ex. Ch. 6 0. P. 14, {d) Bridges v. N. London B. Co. 40 L. J. 0. P. 21 (1870). The p. 402, above. aooident took place in the extra- (e) Mobson v. N. E. S. Co. 2 Q. ordinarily warm and dry summer B. Div. 85, 46 L. J. Q. B. 50 ; Hose of 1868. V. N. B. n. Co. 2 Ex. Div. 248, 46 408- NEGLIGENCE. is shown by the tone and language of the judgments in both the Common Pleas and the Exchequer Chamber to be nearly approached. The action was in respect of pro- perty 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 defendants' servants on the banks adjoining the line, and the boundary hedge trimmed, and the cuttings and trim- mings had, on the morning of the fire {g), been raked into heaps, and lay along the bank inside the hedge. These cuttings and trimmings were, by reason of the state of the weather, very dry and inflammable. Next the hedge there was a stubble field ; beyond that a road ; on the other side of the road a cottage belonging to the plaintiff, 200 yards in all distant from the railway. Two trains passed, and immediately or shortly after- wards the strip of grass between the railroad and the hedge was seen to be on fire. Notwithstanding all efforts made to subdue it, the fire burnt through the hedge, spread over the stubble field, crossed the road, and con- sumed 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) {h) that they were warranted [g) See statement of the facts in expressed some doubt in the Ex. the report in Ex. Ch. L. R. 6 C. P. Ch. on the ground that the par- at p. 15. tioular damage in question could (A) Brett J. dissented in the not have reasonably been antioi- Oommon Pleas, and Blackburn J. pated. EVIDENCE. 409 in so finding on the ground that the defendants were negli- gent, having regard to the prevailing weather, in leaving the diy trimmings in such a place and for so long a time. The risk, though unusual, was apparent, and the company was bound to be careful in proportion. " The more likely the hedge was to take fire, the more incumbent it was upon the company to take care that no inflammable material remained near to it" («). Thus there was evidence enough (though it seems only just enough) to be left for the jury to decide upon. Special danger was apparent, and it would have been easy to use appropriate caution. On the other hand the happening of an accident in extra- ordinary circumstances, from a cause not apparent, and in a manner that could not have been prevented by any ordinary measures of precaution, is not of itself any evidence of negligence (k). And a staircase which has been used by many thousand persons without accident cannot be pronounced dangerous and defective merely because the plaintiff has slipped on it, and somebody can be found to suggest improvements [1). Illustrations might be largely multiplied, and may be No precise found in abundance in Mr. Horace Smith's, Mr. Camp- rule can bell's, or Mr. Seven's monograph, or by means of the cita- ° ^^ ' tions and discussions in the leading cases themselves. Enough has been said to show that by the nature of the problem no general formula can be laid down except in (») Lush. J. in Ex. Ch. L. R. 6 the brass "nosing" of the steps 0. P. at p. 23. (this being the material in common (/t) Blyth V. Birmingham Water- use, ■whereof the Court took judi- works Co. (1856) 11 Ex. 781, 25 oial notice " with the common ex- L. J. Ex. 212, supra, p. 42. , perience -which every one has," {I) Crafter v. Metrop. M. Co. per Willes J. at p. 303), and it was (1868) L. E.. 1 C. P. 300, 35 L. J. suggested that lead would have 0. P. 132 : the plaintiff slipped on been a safer material. 410 NEaLIGENCE. Due care varies aa apparent risk : ap- plicatioa of this to accidents through personal infirmity. some sucli purposely vague terms as were used in Scott v. London Bock 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 any- thing to show the contrary, that they have the full use of common faculties, and are capable of exercising ordinary caution. If a workman throws down a heavy object from a roof or scaffolding " in a country village, where few passengers are," he is free from criminal liability at all events, provided " he calls out to all people to have a care" (w). Now some passer-by may be deaf, and may suffer by not hearing the warning. That will be his mis- fortune, and may be unaccompanied by any imprudence on his part ; but it cannot be set down to the fault of the workman. If the workman had no particular reason to suppose that the next passer-by would be deaf, he was bound only to such caution as suffices for those who have ears to hear. The same rule must hold if a deaf man is run over for want of hearing a shout or a whistle (o), or a blind man for want of seeing a light, or if a colour-blind man, being unable to make out a red danger flag, gets iu 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 (m) P. 400, above. {n) Blackst. Comm. iv. 192. D. 9. 2, ad. leg. Aquil. 31. In a civil action it would probahly be left to the jury whether, on the whole, the work was being done with reasonable care. (o) Cp. SRelion v. i. # iV. JF. S. Co. (1867) L. R. 2 C. P. 631, 36 L. J. C. P. 249, decided however on the ground that the accident was wholly due to the man's own want of care. EVIDENCE. 411 ■wits about Mm. And tMs is not because tbere 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 incon- sistent 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 is Distino- required of us when it does appear that we are dealing the person with persons of less than ordinary faculty. Thus if a man notice of"^^ driving sees that a blind man, an aged man, or a cripple is special crossing the road ahead, he must govern his course and an infirm speed accordingly. He will not discharge himself, in the person, 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 chUd, or other -person mani- festly incapable of normal discretion, exposed to risk from one's action, it seems that proportionate care is required ; and it further seems on principle immaterial that the child would not be there but for the carelessness of some parent or guardian or his servant* These propositions are not supported by any distinct authority in our law that I am aware of {p) . But they seem to follow from admitted {p) In the United States there is Cooley on Torts, 683 ; Beven on some : see Wharton, ^^ 307, 310; Negligence, 8. 412 NEGLIGENCE. principles, and to throw some light on questions which arise under the head of contributory negligence. III. — Contributory Negligence. Actionable In Order that a man's negligence may entitle another mifstliT'"' to a remedy against him, that other must have suffered proximate ]ja,rni whereof this negligence is a proximate cause. Now harm : I may be negligent, and my negligence may be the occa- plaintiff's sion of some one suffering harm, and yet the immediate ^Micels ^" cause of the damage may be not my want of care but his immediate own. Had I been careful to be^in with, he would not cause, no _ . . remedy, have been in danger ; but had he, being so put in danger, used reasonable care for his own safety or that of his property, the damage would still not have happened. Thus my original negligence is a comparatively remote cause of the harm, and as things turn out the proxi- mate cause is the sufferer's own fault, or rather (since a man is under no positive duty to be careful in his own interest) he cannot ascribe it to the fault of another. In a state of facts answering this general description the person harmed is by the rule of the common law not entitled to any remedy. He is said to be " guilty of contributory negligence ; " a phrase well established in our forensic usage, though not free from objection. It rather suggests, as the ground of the doctrine, that a man who does not take ordinary care for his own safety is to be in a manner punished for his carelessness by disability to sue any one else whose carelessness was concerned in producing the damage. But this view is neither a reasonable one, nor supported by modern authority, and it is already distinctly rejected by writers of no small weight (g) . And it stands ill with the [q) See Campbell, 180 ; Horace sqq., who gives the same conclu- Smith, 226 ; and Wharton, ^ 300 sions in a more elaborate form. CONTEIBUTORY NEGLIGENCE, 413 common practice of our courts, founded on constant expe- rience of the way in which this question presents itself in real life. " The received and usual way of directing a jury ... is to say that if the plaintiH could, by the exercise of such care and skill as he was bound to exercise, have avoided the consequence of the defendant's negligence, he cannot recover" (r). That is to say, he is not to lose his remedy merely because he has been negligent at some stage of the busiuess, though without that negligence the subsequent events might not or could not have happened ; but only if he has been negligent in the final stage and at the decisive point of the event, so that the mischief, as and when it happens, is immediately due to his own want of care and not to the defendant's. Again the penal theory of contributory negligence fails to account for the accepted qualification of the rule, "namely, that though the plaintiff may have been guilty of negligence, and although that negligence may ia fact have contributed to the accident, yet if the defendant could in the result, by tlis exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintifiE's neg- ligence will not excuse him " (s). And in the latest leading case, of which there will be more to say, the criterion of what was the proximate cause of the injury is adopted throughout (t). The element of truth which the penal theory, as I have called it, presents in a distorted form, is that the rule is The use of such, phrases as in at p. 759. pari delicto, ttougli not without {() The Bernina (1887) 12 P. D. authority, is likewise confusing 36, 56 L. J. P. 38 ; afEd. nom. and objectionable. Milk v. Armstrong (1888) 13 App. (r) Lord Blackburn, 3 App. Ca. Ca. 1, 67 L. J. P. 65 ; see espe- at p. 1207. ciaUy the judgment of Lindley (s) Lord Penzance, Sadley\. L. L. J., and cp. Little v. Hackett ^ N. W. S. Co. (1876) 1 App. Ca. (1886) 116 U. S. 366, 371. 4 14 NEGLIGENCE. not merely a logical deduction, but is founded in public utility. " The ultimate justification of the rule is in reasons of policy, viz. the desire to prevent accidents by inducing each member of the community to act up to the standard of due care set by the law. If he does not, he is deprived of the assistance of the law " {w). Tuff -v. The leading case which settled the doctrine in its modern form is Tuff v. Wurman ix). 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 want 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 {y) it is said that the proper question for the jury is " whether the damage was occasioned entirely by the negligence 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 harm complained of would (s) not have happened ; " nor (m) W. Schofieia in Harv. La-w (1857-8). Eev. iii. 270. (y) 5 C. B. N. S. at p. 585. {x) 2 C. B. N. S. 740, 6 C. B. \z) Not "could:" see Beven on N. S. 573, 27 L. J. C. P. 322 NegUgenoe, 132. CONTRIBUTORY NEGLIGENCE. 415 ii the defendant might loj the exercise of care on his part have avoided the consequences of the neglect or care- lessness of the plaintiff." In Radley v. London and North Western Railway Co. (a), Sadiei/v. this doctrine received a striking confirmation. jjl %_ ' ' The defendant railway company was in the hahit of taking fuU trucks from the siding of the plaintiffs, coUiery owners, and returning the empty trucks there. Over this siding was a bridge eight feet high from the ground. On a Saturday afternoon, when all the colliery men had left work, the servants of the railway ran some trucks on the siding and left them there. One of the plaintiffs' men knew this, but nothing was done to remove the trucks. The first of these trucks contained another broken-down truck, and their joint height amounted to eleven feet. On the Sunday evening the railway servants brought on the siding a Hne of empty trucks, and pushed on in front of them all those previously left on the siding. Some resist- ance was felt, and the power of the engine pushing the trucks was increased. The two trucks at the head of the line, not being able to pass under the bridge, struck it and broke it down. An action was brought to recover damages for the injury. The defence was contributory negligence, on the ground that the plaintiffs' servants ought to have moved the first set of trucks to a safe place, or at 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 accident " happened by the negligence of the defendants' servants, and without any contributory negligence of their own ; in other words, that («) 1 App. Ca. 754, 46 L. J. Ex. 100, and restoring that of the Court 673, reversing the judgment of the of the Exchequer, L. K. 9 Ex. 71 Exchequer Chamber, L. R. 10 Ex. (1874-6). 416 Negligence. it was solely by the negligence of the defendants' ser- vants." 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 (b) held that there was no evi- dence of contributory negligence, chiefly on the ground that the plaintiffs were not bound to expect or provide against the negligence of the defendants. The Exchequer Chamber (c) held that there was evidence of the plaintiffs having omitted to use reasonable precaution, and that the direction given to the jury was sufficient. In the House of Lords it was held (d) that there was a question of fact for the jury, but the law had not been sufficiently stated to them. They had not been clearly informed, as they should have been, that not every negligence on the part of the plaintiff which in any degree contributes to the mis- chief 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 negligence of the plaintiffs would not preclude them from recovering. " In point of fact the evidence was strong to show that (5) Bramwell and Amphlett BB. {d) By Lord Penzance, Lord (c) Blackburn, Mellor, Lush, Caima, Lord Blackburn (thus re- Grove, Brett, Archibald JJ. ; diss. tracting his opinion in the Ex. Denmau J. Ch.), and Lord Gordon. cause ? CONTRIBUTORY NEGLIGENCE. 417 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 previous negligence of the plaintiffs in leaving the loaded- up truck on the line, have made the accident impossible. The substantial defect of the learned judge's charge is that that question was never put to the jury" (e). This leaves no doubt that the true ground of contribu- "Proxi- tory negligence being a bar to recovery is that it is the "decisive^' proximate cause of the mischief; and negligence on the plaintiff's part which is only part of the induciag causes (/) will not disable him. I say " the proximate cause," con- sidering the term as now established by usage and authority. But I would still suggest, as I did in the first edition, that " decisive " might convey the meaning more exactly. For if the defendant's original negligence was so far remote from the plaintifi's damage as not to be part at least of its " proximate cause " within the more general meaning of that term, the plaintiff would not have any case at all, and the question of contributory negligence could not arise. We shall immediately see, moreover, that independent negligent acts of A. and B. may both be proximate in respect of harm suffered by Z., though either of them, if committed by Z. himself, would have prevented him from having any remedy for the other. Thus it appears that the term "proximate" is not used in pre- cisely the same sense in fixing a negligent defendant's liability and a negligent plaintiff's disability. The plaintiff's negligence, if it is to disable him, has to be somehow more proximate than the defendant's. It («) Lord Penzance, 1 App. Ca. the contrast of " cause " and " con- at p. 760. dition" is dangerous to refine {/) Or, as Mr. Wharton puts it, upon : the deep waters of philoso- Eot a cause but a condition. But phy are too near. P. n E 418 NEGLIGENCE. seems dangerously ambiguous to use " proximate " in a special emphatic sense without further or otherwise marking the dlHerence. If we said " decisive " we should at any rate avoid this danger. created It would Seem that a person who has by his own act or to'^avoid^ default deprived himself of ordinary ability to avoid the conse- consequences of another's negligence can be in no better quences of ^ o o another's position than if, having such ability, he had failed to genoe. avoid them ; unless, indeed, the other has notice of his inability in time to use care appropriate to the emergency ; in which case the failure to use that care is the decisive negligence. A. and B. are driving in opposite directions on the same road on a dark night. B. is driving at a dangerous speed, and A. is 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 of his own. So if a man meets a runaway horse, he cannot tell whether it is loose by negligence or by inevitable accident, nor can this make any difference to what a prudent man could or would do, nor, therefore, to the legal measure of the diligence required {g). Earlier Cases earlier than Tuff v. Warman (h) are now material tions : Only as illustrations. A celebrated one is the " donkey iff) Cp.Mr.W. Schofield's article (A) 5 C. B. N. S. 573, 27 L. J. in Harv. Law Eev. iii. 263. C. P. 322. CONTRIBUTORY NEGLIGENCE. 419 case," Dmies v. Mann U). There the plaintiff had turned ^'^'"^"^ '^^ .... . Mann. 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 man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road" {j). With this may be compared the not much later case of Mayor of Cokhester v. Brooke {k), 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 Barnes v. Mann suggest many speculative variations, and the decision has been much and not always wisely discussed in America, though imiformly followed in this country (/). Butterfield v. Forrester (m) is a good example of obvious Butterfieid \ , ■ • rv! 1 .V. Forres- fault on both sides, where the plaintiff s damage was im- ter. mediately 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 (i) 10 M. & W. 646, 12 L. J. (h) 7 Q. B. 339, 376, 15 L. J. Ex. 10 (1842). Q- B. 59. {j) Parke B., 10 M. & W. at {T} See Harv. Law Rev. iii. 272 p. 549 ; cp. his judgment in. Bridge — 276. V. Grand Junetion R. Co. (1838) 3 [m] 11 East 60, 10 R. R. 433 M. & "W. at p. 248. (1809). E E 2 420 NEGLIGENCE. dusk was coming on, but the obstruction was still visible a hundred yards o£E : he was riding violently, came against the pole, and fell with his horse. It was left to the jury whether the plaintiff, riding with reasonable and ordinary care, could have seen and avoided the obstruction ; if they thought he could, they were to find for the defendant ; and they did so. The judge's direction was affirmed on motion for a new trial. " One person being in fault wiU not dispense with another's using ordinary care for him- self." Here it can hardly be said that the position of the pole across the road was not a proximate cause of the fall. But it was not the whole proximate cause. The other and decisive cause which concurred was the plaintiff's failure to see and avoid the pole in his way. On the whole, then, if the plaintiff's " fault, whether of omission or of commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong" (n). On the other hand, if the defendant's fault has been the proximate cause he is not excused merely by showing that the plaintiff's fault at some earlier stage created the opportunity for the fault which was that cause (o). If it is not possible to say whether the plaintiff's or the defendant's negligence were the proximate (or decisive) cause of the damage, it may be said that the plaintiff cannot succeed because he has faded to prove that he has been injured by the defendant's negligence {p). On the other hand it might be suggested that, since contributory negligence is a matter of defence of which the burden of proof is on the defendant {q), the (n) Little V. Hackett (1886) 116 (p) Per Lindley L. J., The Ber- U. S. 366, 371 ; ButterJkldY. For- nina, 12 P. D. 58, 89. Tester, last page. [q) Lord Watson (Lord Black- (o) Sadley t. L. § N. W. S. Co. ; burn agreeing), Wakelin v. L. ^ S. Davies v. Mann. W. R. Co. (1886) 12 App. Ca. at pp. 47—49. CONTRIBUTORY NEGLIGENCE. 421 defendant would in suoh 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 he entitled to succeed. The defendant must allege and prove not merely that the plaintiS was negligent, hut that the plaintiff could by the exercise of ordinary care have avoided the consequences of the defendant's negligence (>-). It is a question, either way, whether the plaintiff shall recover his whole damages or nothing, for the common law, whether reasonably or not («), has made no provision for apportioning damages in suoh cases. A learned writer (whose preference for being anonymous I respect but regret) has suggested that " hardly sufficient attention has been paid herein to the distinction between cases where the negligent acts are simultaneous and those where they are successive. In regard to the former class, such as Dublin, Wicklow 8f Wexford By. Co. v. Slattery (t), or the~ case of two persons colliding at a street corner, the rule is, that if the plaintiff could by the exercise of ordinary care have avoided the accident he cannot recover. In regard to the latter class of cases, such as Bavies v. Mann (u) and Radley v. L. Sf N. W. By. Co. (x), the rule may he stated thus : that he who last has an opportunity of avoiding the accident, notuithstanding the negligence of the other, is solely responsible. And the ground of both rules is the same : that the law looks to the proximate cause, or, in other words, will not measure out responsibility in halves or other fractions, but holds that person liable who was in the main the cause of the injury " {y). [r) Bridge v. Grand Junction B. («) 12 M. & "W. 546. Co. (1838) 3 M. & W. 248. [x) 1 App. Ca. 754, 46 L. J. Ex. (») See per Lindley L. J., 12 P. 673. D. 89. [y) L. Q. E. T. 87. («) 3 App. Ca. 1155. 422 NEGLIGENCE. Another kind of question arises where a person is injured without any fault of his own, but by the combined effects of the negligence of two persons, of whom the one is not responsible for the other. It has been supposed that A. could avail himself, as against Z. who has been injured without any want of due care on his own part, of the so-called contributory negligence of a third person B. "It is true you were injured by my negligence, but it would not have happened if B. had not been negligent also, therefore you cannot sue me, or at all events not apart from B." Eecent authority is decidedly against allowing such a defence, and in one particular class of cases it has been emphatically disallowed. It must, however, be open to A. to answer to Z. : " You were not injured by my negligence at all, but only and wholly by B.'s." It seems to be a question of fact rather than of law what respective degrees of connexion, ia kind and degree, between the damage suffered by Z. and the independent negligent conduct of A. and B. will make it proper to say that Z. was injured by the negligence of A. alone, or of B. alone, or of both A. and B. But if this last conclusion be arrived at, it is now quite clear that Z. can sue both A. and B. (s). The ex- In a case now overruled, a diEEerent doctrine was set up doctrine of '^i^ich, although never willingly received and seldom acted '■ideati-^ on, remained of more or less authority for nearly forty years. The supposed rule was that if A. is traveUing in a vehicle, whether carriage or ship, which belongs to B. and is under the control of B.'s servants, and A. is injured in a collision with another vehicle belonging to Z., and (a) Little v. Bachett (1886) 116 Thorogood v. Bryan (1849) 8 0. B. U. S. 366 ; Mills v. Armstrong 115, 18 L. J. 0. P. 336. (1888) 13 App. Ca. 1, OTemding DOCTRINE OF "IDENTIFICATION." 423 under the control of Z.'s servants, which collision is caused partly by the negligence of B.'s servants and partly by that of Z.'s servants, A. cannot recover against Z. The passenger, it was said, must be considered as having in some sense " identified himself " with the vehicle in which he has chosen to travel, so that for the purpose of com- plaining of any outsider's negligence he is not in any better position than the person who has the actual con- trol («). It is very difficult to see what this supposed " identification " really meant. With regard to any actual facts or intentions of parties, it is plainly a figment. No passenger carried for hire intends or expects to be answer- able for the negligence of the driver, guard, conductor, master, or whoever the person in charge may be. He naturally intends and justly expects, on the contrary, to hold every such person and his superiors answerable to himself. Why that right should exclude a concurrent right against other persons who have also been negligent in the same transaction was never really explained. Yet the eminent judges (b) who invented "identification " must have meant something. They would seem to have assumed, rather than concluded, that the plaintiff was bound to show, even in a case where no negligence of his own was alleged, that the defendant's negligence was not only a cause of the damage sustained, but the whole of the cause. But this is not so. The strict analysis of the proximate or immediate cause of the event, the inquiry who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts of two or more independent persons have between them (a) Judgments in Thorogood v. (i) Coltman, Maule, OreesweU, Bryan, see 12 P. D. at pp. 64 — 67, and Vaughan WiUiams JJ. 13 App. Ca. at pp. 6, 7, 17. 424 NEGLIGENCE. caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled — of course within the limits set by the general rules as to remoteness of damage — to sue all or any of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he plainly cannot recover in the whole more than his whole damage. The phrase " contributory negligence of a third person," which has sometimes been used, must therefore be rejected as misleading. Peter, being sued by Andrew for causing him harm by negligence, may prove if he can that not his negligence, but wholly and only John's, harmed Andrew. It is useless for him to show that John's negligence was " contributory " to the harm, except so far as evidence which proved this, though failing to prove more, might practically tend to reduce the damages. It is impossible to lay down rules for determining whether harm has been caused by A.'s and B.'s neghgence together, or by A.'s or B.'s alone. The question is essen- tially one of fact. There is no reason, however, why joint negligence should not be successive as well as simultaneous, and there is some authority to show that it may be. A wrongful or negligent voluntary act of Peter may create a state of things giving an opportunity for another wrong- ful or negligent act of John, as well as for pure accidents. If harm is then caused by John's act, which act is of a kind that Peter might have reasonably foreseen, Peter and John may both be liable ; and this whether John's act be wilful or not, for many kinds of negligent and wilfully Avrongful acts are unhappily common, and a prudent man cannot shut his eyes to the probability that somebody wiU commit them if temptation is put in the way. One is not entitled to make obvious occasions for negligence. A. NEGLIGENCE OF THIRD PERSON. 425 leaves the flap of a cellar in an insecure position on a high- way where all manner of persons, adult and infant, wise and foolish, are accustomed to pass. B. in carelessly passing, or playing with the flap, hrings it down on him- self, or on 0. In the former case B. has suffered from his own negligence and cannot sue A. In the latter B. is liable to C. but it may well be that a prudent man in A.'s place would have foreseen and guarded against the risk of a thing so left exposed in a public place being meddled with by some careless person, and if a jury is of that opinion A. may also be liable to 0. (c). Where A. placed a dangerous obstruction in a road, and it was removed by some unexplained act of an unknown third person to another part of the same road where Z., a person lawfully using the road, came against it in the dark and was injured, A. was held liable to Z., though there was nothing to show whether the third person's act was or was not lawful or done for a lawful purpose (d). Another special class of cases requires consideration. If Aooidenta A. is a child of tender years (or other person incapable of in custody taking ordinary care of himself), but in the custody of M., °* ^^^*'- an adult, and one or both of them suffer harm under circumstances tending to prove negligence on the part of Z., and also contributory negligence on the part of M. (e), Z. will not be liable to A. if M.'s negligence alone was the proximate cause of the mischief. Therefore if M. could, by such reasonable diligence as is commonly expected of (c) Suffhes V. Macfie (1863) 2 H. («) TFaite v. N. E. R. Co. (1859) & C. 744, 33 L. J. Ex. 177 ; and Ex. Ch. E. B. & E. 719, 27 L. J. see Clark v. Chambers (1878) 3 Q. Q. B. 417, 28 L. J. Q. B. 258. B. D. at pp. 330 — 336, p. 43, This case is expressly left iin- atove ; Dixon v. Bell, 5 M. & S. touched by Mills v. Armstrong, 13 198, 17 K. E. 308, p. 458, below. App. Ca. 1 (see at pp. 10, 19), 57 (rf) Clark V. Chambers, last note. L. J. P. 66). 426 NEGLIGENCE. persons having the care of young children, have avoided the consequences of Z.'s negligence, A. is not entitled to sue Z. : and this not because M.'s negligence is imputed by a fiction of law to A., who by the hypothesis is incapable of either diligence or negligence, but because the needful foundation of liability is wanting, namely, that Z.'s negli- gence, and not something else for which Z. is not answer- able and which Z. had no reason to anticipate, should be the proximate cause. Children, Now take the case of a child not old enough to use ordi- atte'nded. nary care for its own safety, which by the carelessness of the person in charge of it is allowed to go alone in a place where it is exposed to danger. If the child comes to harm, does the antecedent negligence of the custodian make any difference to the legal result? On principle surely not, unless a case can be conceived in which that negligence is the proximate cause. The defendant's duty can be measured by his notice of special risk and his means of avoiding it ; there is no reason for making it vary with the diligence or negligence of a third person ia giving occasion for the risk to exist. If the defendant is so negligent that an adult in the plaintiff's position could not have saved himself by reasonable care, he is liable. If he is aware of the plaintiff's helplessness, and fails to use such special precaution as is reasonably possible, then also, we submit, he is liable. If he did not know, and could not with ordinary diligence have known, the plain- tiff to be incapable of taking care of himself (/), and has used such diligence as would be sufiBcient towards an adult ; or if, being aware of the danger, he did use such additional caution as he reasonably could ; or if the facts (/) This might happen in various ways, by reason of darkness or otherwise. NEGLIGENCE OP THIRD PERSON. 427 were such that no additional caution was praotioaUe, and there is no evidence of negligence according to the ordinary standard {g), then the defendant is not liable. No English decision has been met with that goes the length of depriving a child of redress on the ground that a third person negligently allowed it to go alone (A). In America there have been such decisions in Massachu- setts («■), New York, and elsewhere: "but there are as many decisions to the contrary " {j) : and it is submitted that both on principle and according to the latest authority of the highest tribunals in both countries they are right. In one peculiar case (k) the now exploded doctrine of Child v. " identification" (/) was brought in, gratuitously as it would seem. The plaintifE was a platelayer working on a rail- {g) Singleton v. E. C. M. Co. (1889) 7 C. B. N. S. 287, is a case of this kind, as it was decided not on the fiction of imputing' a third person's negligence to a child, but on the ground (whether rightly taken or not) that there was no evidence of negligence at all. (h) Mangan v. Atterton (1866) L. E. 1 Ex. 239, 35 L. J. Ex. 161, comes near it. But that case went partly on the ground of the damage being too remote, and since Clark v. Chambers (1878) 3 Q. B. D. 327, 47 L. J. Q. B. 427, supra, p. 43, it is of doubtful authority. For our own part we think it is not law. Cp. Mr. Campbell's note to Dixon V. Sell, 17 R. B. 308. (i) Holmes, The Common Law, 128. (j) Bigelow L. C. 729, and see Horace Smith 241. In Vermont (Robinson v. Cone, 22 Vt. 213, 224, op. Cooley on Torts, 681) the view maintained ia the text is distinctly taken. "We are satisfied that, although a child or idiot or lunatic may to some extent have escaped into the highway, through the fault or negligence of his keeper, and so be improperly there, yet if he is hurt by the negligence of the defendant, he is not precluded from his redress. If one know that such a person ia on the highway, or on a railway, he is bound to a proportionate degree of watchful- ness, and what would be but ordi- nary neglect in regard to one whom the'defendaut supposed a person of full age and capacity, would be gross neglect as to a ohUd, or one known to be incapable of escaping danger." So, too, Bigelow 730, and Newman v. Fhillipsburg Horse Car Co., 52 N. J. 446, Jer. Smith, 2 Sel. Ca. on Torts, 212. [h) ChiU^.Hearn (1874) L. E. 9 Ex. 176, 43 L. J. Ex. 100. (/) P. 422, above. 428 NEGLIGENCE. way ; the railway company was by statute bound to main- tain a fence to prevent animals (?«) from straying ofE the adjoining land ; the defendant was an adjacent owner who kept pigs. The fence was insufficient to keep out pigs («). Some pigs of the defendant's found their way on to the^ line, it did not appear how, and upset a trolly worked by hand on which the plaintiff and others were riding back from their work. The plaintiff's case appears to be bad on one or both of two grounds ; there was no proof of actual negligence on the defendant's part, and even if his common-law duty to fence was not altogether superseded, as regards that boundary, by the Act casting the duty on the railway company, he was entitled to assume that the company would perform their duty ; and also the damage was too remote (o). But the ground actually taken was " that the servant can be in no better position than the master when he is using the master's property for the master's purposes," or " the plaintiff is identified with the land which he was using for his own convenience." This ground would now clearly be untenable. Admiralty The common law rule of contributory negligence is dividing unknown to the maritime law administered in courts of ™^" Admiralty jurisdiction. Under a rough working rule commonly called Judicium rusticum, and apparently de- rived from early medieval codes or customs, with none of which, however, it coincides in its modern application (j?), (m) " Cattle," held by the Court the defendant had previously heen to include pigs. ■warned by some one of his pigs (n) That is, pigs of average being on the line, vigour and obstinacy ; see per (o) Note in Addison on Torts, Bramwell B., -whose judgment 5th ed. 27. (pp. 181, 182) is almost a cari- [p) Marsden on Collisions at cature of the general idea of the Sea, oh. 6 (3d ed.), and see an " reasonable man." It was al- article by the same writer in L. Q. leged, but not found as a fact, that E. ii. 357. DIVISION OF LOSS IN ADMIRALTY CASES. 429 the loss is equally divided in cases of ooUision where both ships are found to have been in fault. " The ancient rule applied only where there was no fault in either ship " (y) ; as adopted in England, it seems more than doubtful whether the rule made any distinction, until quite late in the eighteenth century, between cases of negligence and of pure accident. However that may be, it dates from a time when any more refined working out of principles was impossible (r). As a rule of thumb, which frankly renounces the pretence of being anything more, it is not amiss, and it appears to be generally accepted by those whom it concerns, although, as Mr. Marsden's researches have shown, for about a century it has been applied for a wholly different purpose from that for which it was intro- duced in the older maritime law, and in a wholly different class of cases. By the Judicature Act, 1873 (s), the judicium rusticum is expressly preserved in the Admiralty Division. ,. IV. — Auxiliary/ Utiles and PresumjMoiis. There are certain conditions under which the normal Action standard of a reasonable man's prudence is peculiarly difficulty difficult to apply, by reason of one party's choice of alter- '^^^^^ ^^ natives, or opportunities of judgment, being affected by negli- gence. (?) Op. eit. 130. as 1838 it was distinctly pointed (r) Writers on maritime law state out that "there may have been the rule of the common law to be negligence in both parties, and yet that when both ships are in fault the plaintiff may be entitled to neither can recover anything. This recover:" Parke B. in Bridge ir. may have been practically so in the Grand Junction S. Co., 3 M. & W. first half of the century, but it is 244, 248. neither a, complete nor a correct («) S. 25, sub-s. 9. The first version of the law laid down in intention of the framers of the TuffY. Warman, 5 0. B. N. S. 573, Act was otherwise. See Marsden, 27 L. J. C. P. 322. As long ago p. 134, 3d ed. 430 NEGLIGENCE. the conduct of the -other. Such difficulties occur mostly in questions of eontrihutory negligence. In the first place, a man who by another's want of care finds himself in a position of imminent danger cannot he held guilty of negligence merely because in that emergency he does not act in the best way to avoid the danger. That which appears the best way to a court examining the matter afterwards at leisure and with full knowledge is not necessarily obvious even to a prudent and skilful man on a sudden alarm. Still less can the party whose fault brought on the risk be heard to complain of the other's error of judgment. This rule has been chiefly applied in maritime cases, where a ship placed in peril by another's improper navigation has at the last moment taken a wrong course (s) : but there is authority for it elsewhere. A person who finds the gates of a level railway crossing open, and is thereby misled into thinking the line safe for crossing, is not bound to minute circumspection, and if he is run over by a train the company may be liable to him although " he did not use his faculties so clearly as he might have done under other circumstances" (t). "One should not be held too strictly for a hasty attempt to avert a suddenly impending danger, even though his effort is Hi-judged" {u). No duty to One might generalize the rule in some such form as neo-iigence this : not Only a man cannot with impunity harm others ers. ■j^^ j^-g negligence^ })-^i liis negligence cannot put them in a worse position with regard to the estimation of default. (s) The Bywell Castle (1879) 4 P. {f) N. E. B. Co. v. Div. 219 ; The Tasmania (1890) 15 (1874) L. E. 7 H. L. at p. 16 ; cp. App. Ca. 223, 226, per Lord Her- Slattery's ca. (1878) 3 App. Ca. at Boliell; and see other examples col- p. 1193. leoted in Marsden on Collisions at {«) Briggs v. Vnion Street My. Sea, pp. 4, 5, 3d ed. (1888) 148 Mass. 72, 76. ANTICIPATED NEGLIGENCE. 431 Tou shall not drive a man into a situation where there is loss or risk every way, and then say that he suffered by his own imprudence. Neither shall you complain that he did not foresee and provide against your negligence. We are entitled to count on the ordinary prudence of our fellow-men until we have specific warning to the contrary. The driver of a carriage assumes that other vehicles will observe the rule of the road, the master of a vessel that other ships will obey the statutory and other rules of navigation, and the like. And generally no man is bound (either for the establishment of his own claims, or to avoid claims of third persons against him) to use special pre- caution against merely possible want of care or skill on the part of other persons who are not his servants or under his authority or control («) . It is not, as a matter of law, negligent in a passenger on a railway to put his hand on the door or the window- rod, though it might occur to a very prudent man to try first whether it was properly fastened ; for it is the com- pany's business to have the door properly fastened (y). On the other hand if something goes wrong which does not cause any pressing danger or inconvenience, and the passenger comes to harm in endeavouring to set it right himseU, he cannot hold the company liable (z). We have a somewhat different case when a person, choice of having an apparent dilemma of evils or risks put before ™^j. {xj See Daniel v. Metrop. R. Co. jury. (1871) L. E. 5 H. L. 45, 40 L. J. («) This is the principle appUed C. P. 121. in Adams v. L. ^ T. B. Co. (1869) (y) Gee Y. Metrop. B. Co. (1873) L. E. 4 C. P. 739, .38 L. J. C. P. Ex. Ch. L. E. 8 Q. B. 161, 42 277, though (it seems) not rightly L. J. Q. B. 105. There was some in the particular case; see in Gee difference of opinion how far the v. Metrop. B. Co. L. E. 8 Q. B. at question of contributory negHgenoe pp. 161, 173, 176. in fact was fit to he put to the 432 NEGLIGENCE. stress of JiJn^ by aiiotlier's default, makes an active choice tetween another s "^ negli- 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. ciayardsv. The earliest case where this point is distinctly raised Dethick. . and treated by a fuU Court is Clay arch v. Bethick [a). The plaintiff was a cab-owner. The defendants, for the pur- pose of making a drain, had opened a trench along the passage which afforded the only outlet from the stables occupied by the plaintifi to the street. The opening was not fenced, and the earth and gravel excavated from the trench were thrown up in a bank on that side of it where the free space was wider, thus increasing the obstruction. In this state of things the plaintiff attempted to get two of his horses out of the mews. One he succeeded in lead- ing out over the gravel, by the advice of one of the defen- dants then present. With the other he failed, the rubbish giving way and letting the horse down into the trench. Neither defendant was present at that time {b). The jury were directed " that it could not be the plaintiff's duty to refrain altogether from coming out of the mews merely because the defendants had made the passage in some degree dangerous : that the defendants were not entitled (a) 12 Q. B. 439 (1848). The the defendant's fault he " was rule was laid down by Lord Ellen- placed in such a situation as to borough at nisi prius as early as render what he did a prudent pre- 1816 : Jones T. Boyce, 1 Stark. 493, caution for the purpose of seU- cited by Montague Smith J., L. R. preservation." 4 C. P. at p. 743. The plaintiff {b) Evidence was given by the was an outside passenger on a defendants, but apparently not coach, and jvunped off to avoid believed by the jury, that their what seemed an imminent upset ; men expressly warned the plaiatifi the coach was however not upset. against the course he took. It was left to the jury whether by CHOICE OF RISKS. 433 to keep the occupiers of the mews in a state of siege till the passage was declared safe, first creating a nuisance and then excusing themselves by giving notice that there was some danger : though if the plaintiff had persisted in running upon a great and obvious danger, his action could not be maintained." This direction was approved. Whether the plaintiff had suffered by the defendants' negligence, or by his own rash action, was a matter of fact and of degree properly left to the jury : " the whole question was whether the danger was so obvious that the plaintiff could not with common prudence make the attempt." The decision has been adversely criticised by Lord Bramwell, but principle and authority seem on the whole to support it (c). One or two of the railway cases grouped for practical purposes under the catch-word " invitation to alight " have been decided, in part at least, on the principle that, where a passenger is under reasonable apprehension that if he does not alight at the place where 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 (d) ; notwithstanding that he might, by declining that risk and letting himself be carried on to the next station, have entitled himself to recover damages for the loss of time and resulting expense (e). There has been a line of cases of this class in the State Doctrine of New Tork, where a view is taken less favourable to the yort Courts. (c) See Appendix B. to Smith on 85, 46 L. J. Q. B. 50) ; Sose v. iV. Negligence, 2d ed. I agree witli 11. S. Co. (1876) 2 Ex. Div. 248, Mr. Smith's observations ad fin,, 46 L. J. Ex. 374. p. 279. («) Conira Bramwell L. J. in Jaa; (d) Robion v. N. E. M. Co. v. Corporation of Darlington (1879) (1875-6) L. B. 10 Q. B. 271, 274, 5 Ex. D. at p. 35; but the last- 44 L. J. Q. B. 112 (in 2 Q. B. Div. mentioned cases had not been cited. P. I" F 434 NEGLIGENCE. plaintiff than tKe rule of Clayards v. Dethich. If a train fails to stop, and only slackens speed, at a station wtiere it is timed to stop, and a passenger aligMs from it wMle in motion at the invitation of the company's servants (/), the matter is for the jury ; so if a train does not stop a reason- able time for passengers to alight, and starts while one is alighting [g). Otherwise it is held that the passenger alights at his own risk. If he wants to hold the company liable he must go on to the next station and sue for the resulting damage [h). On the other hand, where the defendant's negligence has put the plaintifE in a situation of imminent peril, the plaintiil may hold the defendant liable for the natural consequences of action taken on the first alarm, though such action may turn out to have been unnecessary (»'). It is also held that the running of even an obvious and great risk in order to save human life may be Justified, as against those by whose default that life is put in peril [k). And this seems just, for a contrary doctrine would have the effect of making it safer for the wrong-doer to create a great risk than a small one. Or we may put it thus ; that the law does not think so meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some able- bodied person should expose himself to the same danger to effect a rescue. (/) Filer V. N. Y. Central E. E. v. Boyce (1816) 1 Stark. 493. Co. (1872) 49 N. T. (4 Siokels) 47. {Ic) Eclcert v. Long Island E. S. iff) 63 N. T. at p. 559. Co. (1871) 43 N. T. 502, 3 Am. (A) Burrows v. Brie E. Co. (1876) Eep. 721 (action by representative 63 N. T. (18 Siokels) 556. of a man killed in getting- a child (») Coulter V. Express Co. (1874) ofE the railway track in front of a 66 N. T. (11 Siokels) 585 ; Twomley train wHch "was being negligently V. Central Bark E. E. Co. (1878) 69 driven). N. Y. (24 Siokels) 158. Cp. Jones PECULIAR AMERICAN RULES. 435 American jurisprudence is exceedingly rich in illustra- Separation tions of the questions discussed in this chapter, and and fact American cases are constantly, and sometimes very freely, g^^teT. ^ cited and even judicially reviewed {I) in our courts. It may therefore he useful to call attention to the peculiar turn given by legislation in many of the States to the treatment of points of " mixed law and fact." I refer to those States where the judge is forbidden by statute (in some cases by the Constitution of the State) (m) to charge the jury as to matter of fact. Under such a rule the summing-up becomes a categorical enumeration of all the specific inferences of fact which it is open to the jury to find, and which in the opinion of the Court would have different legal consequences, together with a statement of those legal consequences as leading to a verdict for the plaintiS or the defendant. And it is the habit of counsel to frame elaborate statements of the propositions of law for which they contend as limiting the admissible findings of fact, or as applicable to the facts which may be found, and to tender them to the Court as the proper instructions to be given to the jury. Hence there is an amount of minute discussion beyond what we are accustomed to in this country, and it is a matter of great importance, where an appeal is contemplated, to get as little as possible left at large as matter of fact. Thus attempts are frequently made to persuade a Court to lay down as matter of law that particular acts are or are not contributory negh- gence (w). Probably the common American doctrine that {Tf E. g. Lord Ester's judgment («) For a strong example see in The Bernina, 12 P. Div. at pp. Kane v. N. Central M. Co. 128 U. S. 77 82. Cp. per Lord Hersohell 91. In Washington fc. E. M. Co. ia Mills y. Armstrong, 13 App. Ca. v. McDade (1889) 135 U. S. 554, at p. 10. 56*j "counsel for the defendant («•() Stimson, American Statute asked the Court to grant twenty Law p. 132, 5 605. separate prayers for instructions to the jury." F F 2 436 NEGLIOENCE. the plaintiff has to prove, as a sort of preliminary issue, that he was in the exercise of due care, has its origin in this practice. It is not necessary or proper for an English lawyer to criticize the convenience of a rigid statutory definition of the provinces of judge and jury. But English practitioners consulting the American reports must bear its prevalence in mind, or they may find many things hardly intelligible, and perhaps even suppose the substantive dif- ferences between English and American opinion upon points of pure law to be greater than they really are. 437 CHAPTER XII. DUTIES OF INSUEING SAFETY. In general, those who in person go ahout an undertaking Exoep- attended ■with risk to their neighbours, or set it in motion general by the hand of a servant, are answerable for the conduct J"™^*^ °^ •' ' duties 01 of that undertaking with diligence proportioned to the caution, apparent risk. To this rule the policy of the law makes exceptions on both sides. As we have seen in the chapter of Greneral Exceptions, men are free to seek their own advantage in the ordinary pursuit of business or uses of property, though a probable or even intended result may be to diminish the profit or convenience of others. We now have to consider the cases where a stricter duty has been imposed. As a matter of history, such cases cannot easUy be referred to any definite principle. But the ground on which a rule of strict obligation has been maintained and consolidated by modern authorities is the magnitude of the danger, coupled with the difficulty of proving negligence as the specific cause in the event of the danger having ripened into actual harm. The law might have been content with applying the general standard of reasonable care, in the sense that a reasonable man dealing with a dangerous thiug — fire, flood-water, poison, deadly weapons, weights projecting or suspended over a thorough- fare, or whatsoever else it be — will exercise a keener foresight and use more anxious precaution than if it were an object unlikely to cause harm, such as a faggot, or a loaf of bread. A prudent man does not handle a loaded 438 DUTIES OF INSURING SAFETY. gun or a sharp sword in the same fashion as a stick or a shovel. But the course adopted in England has been to preclude questions of detail by making the duty absolute ; or, if we prefer to put it in that form, to consolidate the judgment of fact into an unbending rule of law. The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbour to such risk is held, although his act is not of itself wrongful, to insure his neighbour against any consequent harm not due to some cause beyond human foresight and control. Byiandsr. Yarious particular rules of this kind (now to be re- garded as applications of a more general one) are recog- nized in our law from early times. The generalization was effected as late as 1868, by the leading case of Rylands v. Fletcher, where the judgment of the Ex- chequer Chamber delivered by Blackburn J. was adopted in terms by the House of Lords. The nature of the facts in Fletcher v. Rylands, and the question of law raised by them, are for our purpose best shown by the judgment itself {a) : — Judgment " It appears from the statement in the case, that the plaintifE was damaged by his property being flooded by water, which, without any fault on his part, broke out of a reservoir, constructed on the defendants' land by the defendants' orders, and maintained by the defendants. " It appears from the statement in the case, that the coal under the defendants' land had at some remote period been worked out; but this was unknown at the time when the defendants gave directions to erect the [a] L. R. 1 Ex. at p. 278, per For the statements of fact referred WiUes, Blackburn, Keating, Mel- to, see at pp. 267—269. lor, Montague Smitli, and Lush JJ. RYLANDS V. FLETCHER. 439 reservoir, and the water in the reservoir would not have escaped from the defendants' land, and no mischief would have been done to the plaintiff, but for this latent defect in the defendants' subsoil. And it further appears that •the defendants selected competent engineers and con- tractors to make their reservoir, and themselves personally continued in total ignorance of what we have called the latent defect in the subsoil; but that these persons employed by them in the course of the work became aware of the existence of the ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workiags. "It is found that the defendants personally were free from all blame, but that in fact proper care and skill was not used by the persons employed by them, to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was that the reservoir when filled with water burst into the shafts, the water flowed down through them into the old workiags, and thence into the plaintifi's mine, and there did the mischief. " The plaintiff, though free from all blame on his part, must bear the loss unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on aU hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours ; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of 440 DUTIES OF INSURING SAFETY, the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there some- thing dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answer- able except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect " We think that the true rule of law is, that the person who for his own purposes brings on his lands, and collects and keeps there, anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default ; or perhaps that the escape was the consequence of vis major, or the act of Grod ; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufiicient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own ; and it seems but reasonable and just that the neighbour who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make RYLANDS V. FLETCHER. 441 good the damage wliiolL 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 BO brought be beasts, or water, or filth, or stenches." Not only was this decision affirmed in the House of Afarma- Lords (b), but the reasons given for it were fully con- ofbyH.L. fijmed. " If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage " (c). It was not overlooked that a line had to be drawn between this ride and the general immunity given to landowners for acts done in the " natural user " of their land, or " exercise of ordinary rights " — an immunity which extends, as had already been settled by the House of Lords itself {d), even to obviously probable 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 quantities and in a manner not the result of any work or operation on or under the land." The detailed illustration of the rule in Eylands v. Fletcher, as governing the mutual claims and duties of adjacent landowners, belongs to the law of property rather than to the subject of this work {e). We shall return (b) MyUndsY. Fletcher {1%&S) L. [d) Chasemore v. Richards (1859) E. 3 H. L. 330, 37 L. J. Ex. 161. 7 H. L. C. 349, 29 L. J. Ex. 81. (c) Lord Cranworth, at p. 310. (e) See Fletcher v. Smith (1877) 443 DUTIES OF INSURING SAFETY. presently to the special classes of cases (more or less dis- cussed in the judgment of the Exchequer Chamber) for which a similar rule of strict responsibility had been estab- lished earlier. As laying down a positive rule of law, the decision in Rijlands v. Fletcher is not open to criticism in this country (/). But in the judgment of the Ex- chequer Chamber itself the possibility of exceptions is suggested, and we shall see that the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. A rule casting the responsi- bility of an insurer on innocent persons is a hard rule, though it may be a just one ; and it needs to be main- tained by very strong evidence {g) or on very clear grounds of policy. Now the judgment in Fletcher v. Rylands (Ji), carefully prepared as it evidently was, hardly seems to make such grounds clear enough for universal acceptance. The liability seems to be rested only in part on the evidently hazardous character of the state of things arti- ficially maintained by the defendants on their land. In part the case is assimilated to that of a nuisance («), and 2 App. Ca. 781, 47 L. J. Ex. 4 ; setts (Shipley v. Fifty Associates, Humphries y . Cousins (1877) 2 C.T. 106 Mass. 194; Gorham v. Gross, D. 239, 46 L. J. C. P. 438 ; Hiird- lib Mass. 232 ; Mears v. Dole, 135 man v. North Eastern M. Co. (1878) Mass. .508) ; but distinctly dis- 3 C. P. Div. 168, 47 li. J. C. P. aUowed in New York: Losee t. 368 ; and for the distinction as to Buchanan, 51 N. Y. (6 Sickels) 476. "natural course of user," Wilson (g) See Seg. v. Commissioners of T. Waddell, H. L. (Sc.) 2 App. Ca. Sewers for Essex (1885) 14 Q. B. 95. The principle of Rylands v. Div. 561. Fletcher was held applicable to an (h) L. R. 1 Ex. 277 sqq. electric current discharged into the (i) See especially at pp. 285-6. earth in National Telephone Co. v. But can an isolated accident, how- Baker, '93, 2 Ch. 186, 62 L. J. Ch. ever mischievous in its results, be a 699, 3 E. 318. nuisance ? though its consequences (/) Judicial opinions still differ may, as where a branch lopped or in the United States. See Bigelow blown down from a tree is left L. C. 497 — 500. The case has been lying across a highway, cited with approval in Massaohu- CHARACTER OF LATER CASES. 443 in part, also, traces are apparent of the formerly prevalent theory that a man's voluntary acts, even when lawful and free from negligence, are prima facie done at his peril (/;), a theory which modern authorities have explicitly rejected in America, and do not encourage in England, except so far as Rylands v. Fletcher may itself be capable of being used for that purpose (/). Putting that question aside, one does not see why the policy of the law might not have been satisfied by requiring the defendant to insure dili- gence in proportion to the manifest risk (not merely the diligence of himself and his servants, but the actual use of due care in the matter, whether by servants, contractors, or others), and throwing the burden of proof on him in cases where the matter is peculiarly within his knowledge. This indeed is what the law has done as regards duties of safe repair, as we shall presently see. Doubtless it is pos- sible to consider Rijlands v. Fletcher as having only fixed a special rule about adjacent landowners [m) : but it was certainly intended to enunciate something much wider. Yet no case has been found, not being closely similar in Character its facts, or within some previously recognized category, in ^ases. 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 (ii). Thus the {k) L. E. 1 Ex. 286-7, 3 H. L. (m) Martin B., L. K. 6 Ex. at 341. p. 223. (Q See The Nitro-glycerine Case («) There must be something of (1872) 15 "Wall. 524; Brown v. this kind. A man is not liable for Kendall (1860) 6 Gush. 292 ; Solmes the loss of a neighbour's cattle V. Mather (1875) L. R. 10 Ex. 261, which trespass and eat yew leaves 44 L. J. Ex. 176 ; Stanley v. Powell, on. his laud : Ponting v. Noakes, '94, '91, 1 Q. B. 86, 60 L. J. Q. B. 2 Q. B. 281, 10 R. July, 283, 63 ,52. L. J. Q. B. 549. 444 DUTIES OF INSURING SAFETY. owner of yew trees, whose branolies project over his boun- dary, so that his neighbour's horse eats of them and is thereby poisoned, is held liable («) ; 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 (o). In these cases, however, it was not contended, nor was it possible to contend, that the defendants had used any care at all. The arguments for the defence went either on the acts complained of being within the " natural user " of the land, or on the damage not being such as could have been reasonably anticipated {p). We may add that having a tree, noxious or not, permanently projecting over a neighbour's land is of itself a nuisance, and letting decayed pieces of a fence, or anything else, fall upon a neighbour's land for want of due repair is of itself a tres- pass. Then in Ballard v. Tomlinson {q) the sewage col- lected by the defendant in his disused well was an abso- lutely noxious thing, and his case was, not that he had done his best to prevent it from poisoning the water which supplied the plaintiff's well, but that he was not bound to do anything. Exception Qn the other hand, the rule in Hi/lands v. Fletcher has of act of God. been decided by the Court of Appeal not to apply to (b) Crowhurst v. Amersham Burial stranger. Board (1878) 4 Ex. D. 5, 48 L. J. (o) Firth v. Bowling Iron Co. Ex. 109. Wilsons. Newberry (Mil) (1878) 3 C. P. D. 254, 47 L. J. L. K. 7 Q. B. 31, 41 L. J. Q. B. 0. P. 358. 31, is not inconsistent, for there it {p) The former ground -was -was only averred that clippings chiefly relied on in Crowhurst' s from the defendants' yew trees case, the latter in Firth's. were on the plaintifE's land; and (?) 29 Ch. Div. 115 (1885), 54 the olippitig might, for all that L. J. Ch. 454. appeared, have been the act of a EYLANDS V. FLETCHER ; EXCEPTIONS. 445 damage of wMoh the immediate cause is the act of Grod (r) . And the act of Grod does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have prevented its effects. It is enough that the accident should be such as human foresight could not be reasonably expected to anticipate ; and v^hether it comes within this description is a question of fact (.s) . The only material element of fact which dis- tinguished the case referred to from Rylands v. Fletcher was that the overflow which burst the defendants' embank- ment, and set the stored-up water in destructive motion, was due to an extraordinary storm. Now it is not because due diligence has been used that an accident which nevertheless happens is attributable to the act of Grod. And experience of danger previously unknown may doubt- less raise the standard of due diligence for after- time {t). But the accidents that happen in spite of actual prudence, and yet might have been prevented by some reasonably conceivable prudenoe, are not numerous, nor are juries, even if able to appreciate so fine a distinction, likely to be much disposed to apply it {u). The authority of Rylancls (r) Act of Grod=vis maior= finally let oflB by a system of weirs. Geou |3i'« : see D. 19. 2. locati con- The rainfall accompanying an ex- dueti, 25, § 6. The classical signi- tremely violent thunderstorm broke fication of " vis maior " is however the embankments, and the rush of wider for some purposes ; Nugent water down the stream carried V. Smith, 1 C. P. Div. 423, 429, per away four county bridges, in re- Cookbum 0. J. spect of which damage the action (s) Nichols V. MarsUnd (1875-6) was brought. L. K. 10 Ex. 255, 2 Ex. D. 1, 46 {t) See Meg. v. Commissioners of L. J. Ex. 174. Note that Lord Sewers for Essex [Wib) in ^vAgment Bramwell, who in Eylands v. of Q. B. D., 14 Q. B. D. atp. 574. Fletcher took the view that ulti- {«) " Whenever the world grows mately prevailed, was also a party wiser it convicts those that came to this decision. The defendant before of negligence." BramweU was an owner of artiftcial pools, B., L. E. 6 Ex. at p. 222. But formed by damming a natural juries do not, unless the defendant stream, into which the water was is a railway company. 446 DUTIES OP INSURING SAFETY. V. Fletcher is unquestioned, tut NicJioh v. Marsland has practically empowered juries to mitigate the rule whenever its operation seems too harsh. Act of Again the principal riile does not apply where the &c. " ' immediate cause of damage is the act of a stranger («), nor where the artificial work which is the source of danger is maintained for the common benefit of the plaintifE and the defendant (y) ; and there is some ground for also making an exception where the immediate cause of the harm, though in itself trivial, is of a kind outside reason- able expectation (s) . Works re- There is yet another exception in favour of persons autlforized acting in the performance of a legal duty, or in the by law. exercise of powers specially conferred by law. Where a zamlndar maintained, and was by custom bound to main- tain, an ancient tank for the general benefit of agriculture in the district, the Judicial Committee agreed with the High Court of Madras in holding that he was not liable for the consequences of an overflow caused by extraordinary rainfall, no negligence being shown [a). In the climate of India the storing of water m. artificial tanks is not only (x) Box T. Jubb (1879) 4 Ex. D. in a rain-water box maintained by TB, 48 L. J. Ex. 417. Wilson M. the defendant, and water escaped Neuherry (1871) L. R. 7 Q. B. 31, throngli it and damaged the plain- 41 L. J. Q. B. 31, is really a deci- tiff's goods on the ground floor. sion on the same point. Questions as to the relation of par- (y) Carstairs t. Taylor (1871) L. ticular kinds of damage to conven- E. 6 Ex. 217, 40 L. J. Ex. 29 ; cp. tional exceptions in contracts for Madras E. Co. v. Zemindar of Oar- safe carriage or custody are of vatenagaram, L. R. 1 Ind. App. course on a different footing. See 364. as to rats in a, ship Samilton v. (z) Carstairs v. Taylor, last note, Tandorf (1887) 12 App. Ca. 518, but the other ground seems the 67 L. J. Q. B. 24. principal one. The plaintiff was {a) Madras It. Co. v. Zemindar of the defendant's tenant ; the de- Carvatenagaram, L. R. 1 Ind. App. fendant occupied the upper part of 364 ; S. C, 14 Ben. L. R. 209. the house. A rat gnawed a hole MAINTENAKCE OF WORKS. 447 a natural but a necessary mode of using land (5) . In like manner tke 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 imder the canal (c). On the same principle a railway company authorized by Parliament to use locomotive engines on its line is bound to take all reasonable measures of precaution to prevent the escape of fire from its engines, but is not bound to more. If, notwithstanding the best practicable care and caution, sparks do escape and set fire to the property of adjacent owners, the company is not liable (d). The burden of proof appears to be on the company to show that due care was used (e), but there is some doubt as to this (/). Some years before the decision of Hi/lands v. Fletcher &■ ^- -K. the duty of a railway company as to the safe maintenance Canada v. of its works was considered by the Judicial Committee on appeal from Upper Canada (g). The persons whose (*) See per Hollo-way J. in the negligence ; Figgott v. E. C. JR. Co. Court below, 6 Mad. H. 0. at p. (1846) 3 C. B. 229, 15 L. J. 0. P. 184. 235 ; op. per Blackburn J. in (c) Dunn v. Birmingham Canal Vaughan v. Taff Vale S. Co. Co. (1872) Ex. Ch. L. E. 8 Q. B. (/) Smithy. L. # 8. W. R. Co. 42, 42 L. J. Q. B. 34. The prin- (1870) Ex. Ch. L. E. 6 0. P. 14, ciple waa hardly disputed, the seems to imply the contrary view ; point which caused some difficulty but Figgott v. E. C. B. Co. was being whether the defendants were not cited. It may be that in the bound to exercise for the plaintiff's course of a generation the pre- benefit certain optional powers sumption of negligence has been given by the same statute. found no longer tenable, experience [d) Vaughan v. Taff Vale B. Co. having shown the occasional escape (1860) Ex. Ch. 5 H. & N. 679, 29 of sparks to be consistent with aU L. J. Ex. 247 ; cp. L. R. 4 H. L. practicable care. Such a reaction 201, 202 ; Fremamtle v. Z. # N. W. would hardly have found favour, It. Co. (1861) 10 C. B. N. S. 89, 31 however, with the Court which L. J. C. P. 12. decided Fletcher v. Eylands in the («) The escape of sparks has been Exchequer Chamber. held to be prima facie evidence of {g) G. W. B. Co. of Canada v. 448 DUTIES OF INSURING SAFETY. rights against the company were in question were pas- sengers in a train which fell into a gap in an embank- ment, the earth having given way by reason of a heavy rain-storm. It was held that "the railway company ought to have constructed their works in such a manner as to be capable of resisting all the violence of weather which in the climate of Canada might be expected, though per- haps rarely, to occur." And the manner in which the evidence was dealt with amounts to holding that the failure of works of this kind under any violence of weather, not beyond reasonable prevision, is of itself evidence of negligence. Thus the duty affirmed is a strict duty of diligence, but not a duty of insurance. Let us suppose now (what is likely enough as matter of fact) that in an accident of this kind the collapse of the embank- ment throws water, or earth, or both, upon a neighbour's land so as to do damage there. The result of applying the rule in Rylancls v. Fletcher will be that the duty of the railway company as landowner to the adjacent landowner is higher than its duty as carrier to persons whom it has contracted to carry safely ; or property is more highly regarded than life and limb, and a general duty than a special one. If the embankment was constructed under statutory authority (as in most cases it would be) that would bring the case within one of the recognized exceptions to Bylands v. Fletcher. But a difficulty which may vanish in practice is not therefore inconsiderable in principle. Otter cases of insurance liability. We shall now shortly notice the authorities, antecedent to or independent of Bylands v. Fletcher, which establish Braid (1863) 1 Moo. P. C. N. S. 101. There were some minor points on the evidence (whether one of the sufferers was not travel- ling at his own risk &c.), which were overruled or regarded as not open, and are therefore not noticed in the text. CATTLE TRESPASS. 449 tlie rule of absolute or all but absolute responsibility for certain special risks. Cattle trespass is an old and well settled head, perhaps Duty of the oldest. It is the natiu^e of cattle and other live stock cattie"^ ™ to stray if not kept in, and to do damage if they stray ; and the owner is bound to keep them from straying on the land of others at his peril, though liable only for natural and probable consequences, not for an unexpected event, such as a horse not previously known to be vicious kicking a human being (A). So strict is the rule that if any part of an animal which the owner is bound to keep in is over the boundary, this constitutes a trespass. The owner of a stallion has been held liable on this ground for damage done by the horse kicking and biting the plaintiff's mare through a wire fence which separated their closes {i). The result of the authorities is stated to be " that in the case of animals trespassing on land, the mere act of the animal belonging to a man, which he could not foresee, or which he took all reasonable means of preventing, may be a tres- pass, inasmuch as the same act if done by himself would have been a trespass " (k). Blackstone (/) says that " a man is answerable for not only his own trespass, but that of his cattle also : " but in the same breath he speaks of "negligent keeping" as the ground of liability, so that it seems doubtful whether the law was then clearly understood to be as it was laid down a century later in Cox v. Burhidge {m). Observe that the {h) Cox T. Burbidge (1863) 13 C. {k) Brett J., L. E. 10 C. P. at B. N. S. 430, 32 L. J. 0. P. 89. p. 13 ; op. the remarks on the (i) Ellis v. Loftua Iran Co. (1874) general law in Smith v. Coolc (1875) L. E. 10 C. P. 10, 44 L. J. 0. P. 1 Q. B. D. 79, 45 L. J. Q. B. 122 24, a stronger case than Lee v. (itself a case of contract). Siley (1865) 18 C. B. N. S. 722, (Z) Comm. iU. 211. 34 L. J. C. P. 212, there cited and [m) 13 0. B. N. S. 430, 32 L. J. followed. C. P. 89. P. G G 450 DUTIES OF INSURING SAFETY. only reason given in tlie earlier books (as indeed it still prevails in quite recent cases) is the archaic one that trespass by a man's cattle is equivalent to trespass by himself. The rule does not apply to damage done by cattle stray- ing off a highway on which they are being lawfully driven : in such case the owner is liable only on proof of negli- gence («) ; and the law is the same for a town street as for a country road (o). Also a man may be bound by pre- scription to maintain a fence against his neighbour's cattle (|j) . " Whether the owner of a dog is answerable in trespass for every \mauthorized entry of the animal into the land of another, as is the case with an ox," is a point still not clearly decided. The better opinion seems to favour a negative answer (q). Danger- Closely connected with this doctrine is the responsibility yiolous of owners of dangerous animals. " A person keeping a anmiab. mischievous animal with knowledge of its propensities is bound to keep it secure at his peril." If it escapes and does mischief, he is liable without proof of negligence, neither is proof required that he knew the animal to be («) Goodwin v. Chevehy (1859) 4 and see Millen v. Fawdry, Latch, H. & N. 631, 28 L. J. Ex. 298. A 119. In Teape v. Swan, 51 L. T. contrary opinion was expressed by 263, the defendant was held not Littleton, 20 Edw. IV. 11, pi. 10, liable for injury received by the cited in Read v. Edwards, 17 C. B. plaintiff from the defendant's dog N. S. 245, 34 L. J. C. P. at p. 32. jumping over a wall and falling (o) Tilhtt V. Ward (1882) 10 Q. on him. Here it would seem the B. D. 17, 52 L. J. Q. B. 61, where damage was not of a kind that an ox being driven through a town could be reasonably foreseen, whe- strayed into a shop. ther there were a nominal trespass {p) So held as early as 1441-2 : or not. The plaintiff could not T. B. 19 H. VI. 33, pi. 68. have recovered unless the law [q) Head v. Edwards (1864) 17 treated a, dog as an absolutely C. B. N. S. 245, 34 L. J. C. P. 31 ; dangerous animal. FIEE AND DANGEROUS THINGS. 451 miscliievous, if it is of a notoriously fierce or mischievous species (r). If the animal is of a tame and domestic kind, the o"wner is liable only on proof that he knew the parti- cular animal to be " accustomed to bite mankind," as the common form of pleading ran in the case of dogs, or other- ■wise vicious ; but when such proof is supplied, the duty is absolute as in the former case. It is enough to show that the animal has on foregoing occasions manifested a savage disposition, whether with the actual result of doing mis- chief on any of those occasions or not (s) . But the neces- sity of proving the scienter, as it used to be called from the language of pleadings, is often a greater burden on the plaintifE than that of proving negligence would be; and as regards injury to cattle or sheep it has been done away with by statute. And the occupier of the place where a dog is kept is presumed for this purpose to be the owner of the dog{t). The word " cattle " includes horses (ii) and perhaps pigs {v). The risk incident to dealing with fire, fire-arms, explo- Fire, fire- sive or highly inflammable matters, corrosive or otherwise ^"^ ' (r) As a moiikey: May v. Burdett 26 & 27 Viot. c. 100. See Camp- (1846) 9 Q.'B. 101, and 1 Hale, bell on Negligence, 2nd ed. pp. 53 P. C. 430, there cited. An elephant — 55. Further protection against is a dangerous animal in England : mischievous or masterless dogs is Filburn v. Aquarmm Co. (1890) 25 given by 34 & 35 Vict. c. 56, a Q. B. Div. 258, 59 L. J. Q. B. statute of public police regulations 471 _ outside the scope of this ■work. (s) TForth T. Gilling (1866) L. E. The Scottish comment on our old 2 C. P. 1. As to what is sufficient common law rule—" every dog is notice to the defendant through his entitled to one worry "—is almost servants, Baldwin v. Casella (1872) too familiar for quotation. L. E. 7 Ex. 325, 41 L. J. Ex. 167 ; («) Wright v. Fearson (1869) L. Applehee v. Percy (1874) L. E. 9 E. 4 Q. B. 682. C. P. 647, 43 L. J. C. P. 365. [v) Child v. Beam (1874) L. E. {t) 28 & 29 Vict. c. 60 (a.d. 1865). 9 Ex. 176, 43 L. J. Ex. 100 (on a There is a similar Act for Scotland, different Act). G G 2 452 DUTIES OF INSURING SAFETY. dangerous or noxious fluids, and (it is apprehended) poisons, is accounted by the common law among those ■which subject the actor to strict responsibility. Some- times the term " consummate care " is used to describe the amount of caution required: but it is doubtful whether even this be strong enough. At least, we do not know of any English case of this kind (not falling under some recognized head of exception) where unsuccessful diligence on the defendant's part was held to exonerate him. Duty of As to fire, we find it in the fifteenth century stated to fire. ° be the custom of the realm (which is the same thing as the common law) that every man must safely keep his own fire so that no damage in any wise happen to his neighbour («). In declaring on this custom, however, the averment was " ignem suum tam negligenter custodivit : " and it does not appear whether the allegation of negligence was travers- able or not (y). We shall see that later authorities have adopted the stricter view. The common law rule applied to a fire made out of doors (for burning weeds or the like) as well as to fire in a dwelling-house (s) . Here too it looks as if negligence was the gist of the action, which is described (in Lord Ray- mond's report) as " case grounded upon the common custom of the realm for negligently keeping his fire." SemUe, if the fire were carried by sudden tempest it would be excus- able as the act of God. Liability for domestic fires has been dealt with by statute, and a man is not now answer- able for damage done by a fire which began in his house or (x) T. B. 2 Hen. IV. 18, pi. 6. Ms peril. This may te founded on ancient [y) Blaokstone (i. 431) seems to Grermanic custom : cp. LI. Langob. assume negligence as a condition cc. 147, 148 (a.d. 643), where a man of liability. ■who carries fire more than nine feet (z) Tubervil or Tubenille \. Stamp, from the hearth is said to do so at 1 Salk. 13, s. c. 1 Ld. Raym. 264. CARRYING FIRE IN LOCOMOTIVES. 453 on his land by accident and without negligence («). He is answerable for damage done by fire lighted by an authorized person, whether servant or contractor, notwithstanding that the conditions of the authority have not all been complied with (J). The use of fire for non-domestic purposes, if we may coin the phrase, remains a ground of the strictest respon- sibility. Decisions of our own time have settled that one who Carrying brings fire into dangerous proximity to his neighbour's loco- property, in such ways as by running locomotive engines ™°*'^®^- on a railway without express statutory authority for their use (c), or bringing a traction engine on a highway (d), does so at his peril. And a company authorized by statute (a) 14 Geo. 111. c. 78, a. 86, aa interpreted in Filliter v. Fhippard (1847) U Q. B. 347, 17 L. J. Q. B. 89.. There was an earlier statute of Anne to a like effect ; 1 Blaokst. Comm. 431 ; and see per Cur. in Filliter v. Fhippard. It would seem that even at common law the defendant would not be liable unless he knowingly lighted or kept some fire to begin with ; for otherwise how could it be described as ignis suus ? (b) Black V. Christchurch Finance Co. (J. C. from N. Z.), '94, A. C. 48, 63 L. J. P. C. 32. (c) Jones Y. Festiniog F. Co. (1868) L. R. 3 Q. B. 733, 37 L. J. Q. B. 214. Here diligence was proved, but the company held nevertheless Uable. The rule was expressly stated to be an application of the wider principle of Bylands v. Fletcher ; see per Blackburn J. at p. 736. {d) Fowell V. Fall (1880) 5 Q. B. Div. 597, 49 L. J. Q. B. 428. The use of traction engines on high- ways is regulated by statute, but not authorized in the sense of diminishing the owner's liability for nuisance or otherwise ; see the sections of the Locomotive Acts, 1861 and 186.5, in the judgment of MeUor J. at p. 598. The dictum of Bramwell L. J. at p. 601, that Taughan v. Taff Vale M. Co. (1860) Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247, p. 439, above, was wrongly decided, is extra-judicial. That ease was not only itself decided by a Court of co-ordinate authority, but has been approved in the House of Lords ; Hammersmith R. Co. v. Brand (1869) L. R. ,4 H. L. at p. 202 ; and see the opinion of Black- burn J. at p. 197. 454 DUTIES OP INSURING SAFETY. to run a steam-engine on a highway still does so at its peril as regards the safe condition of the way (c?) . It seems permissible to entertain some doubt as to the historical foundation of this doctrine, and in the modern practice of the United States it has not found acceptance (e). In New York it has, after careful discussion, been ex- pressly disallowed (/). Fire- Loaded fire-arms are regarded as highly dangerous Dixon V things, and persons dealing with them are answerable for ■^^^^- damage done by theu' explosion, even if they have used apparently sufficient precaution. A man sent his maid- servant to fetch a flint-lock gun which was kept loaded, with a message to the master of the house to take out the priming first. This was done, and the gun delivered to the girl ; she loitered on her errand, and (thinking, pre- sumably, that the gun would not go off) pointed it in sport at a child, and drew the trigger. The gun went off and the child was seriously wounded. The owner was held liable, although he had used care, perhaps as much care as would commonly be thought enough. " It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious. {d) Sadler v. South Staffordshire, (/) Losee v. Buchanan (1873) 51 %c. Tramways Co. (1889) 23 Q. B. N. T. 476 ; the owner of a steam- Div. 17, 58 L. J. Q. B. 421 (oar boiler was held not liable, inde- ran off line through a defect in peudently of negligence, for an the points : the line did not belong explosion which threw it into the to the defendant company, who plaintiii's buildings. For the pre- had running powers over it). vious authorities as to fire, uni- (e) It appears to be held every- formly holdmg that in order to where that unless the original act succeed the plaintifB must prove is in itself unlawful, the gist of negligence, see at pp. 487-8. Si/- the action is negligence ; see Cooley lands y. Fletcher is disapproved as on Torts, 589 — 594. being in conflict with the current of American authority. EXPLOSIVES. 455 This might have been done by the discharge or drawing of the contents. The gun ought to have been so left as to be out of all reach of doiag harm" (g). This amounts to saying that in dealing with a dangerous instrument of this kind the only caution that will be held adequate in point of law is to abolish its dangerous character altogether. Observe that the intervening negligence of the servant (which could hardly by any ingenuity have been imputed to her master as being in the course of her employment) was no defence. Experience unhappily shows that if loaded fire-arms are left within the reach of children or fools, no consequence is more natural or probable than that some such person will discharge them to the injury of himself or others. On a like principle it is held that people sending goods Explosives of an explosive or dangerous nature to be carried are dangerous bound to give reasonable notice of their nature, and, if S°°^- they do not, are liable for resulting damage. So it was held where nitric acid was sent to a carrier without warn- ing, and the carrier's servant, handling it as he would handle a vessel of any harmless fluid, was injured by its escape (h). The same rule has been applied in British India to the case of an explosive mixture being sent for carriage by railway without warning of its character, and exploding in the railway company's office, where it was (/) Dixon V. Bell (1816) 5 M. & (1874) 2 E. 42, a somewliat similar S. 198 17 K. R. 308, and in case in Scotland -where the defen- Bigelow L. C. 568. It might dant was held not liable. But in have been said that sending an in- Scotland culpable negligence has competent person to fetch a loaded to be distinctly found, gun was evidence of negligence (see (A) Farrant v. Barnes (1862) 11 the first count of the declaration) ; C. B. N. S. 653, 31 L. J. C. P. but that is not the ground taken by 137. The duty seems to be ante- the Court (Lord EUenborough C. J. cedent, not incident, to the contract andBayley J.). G^ Kingir.Follock of carriage. 456 DUTIES OP INSURING SAFETY. Gaa escapes. Poisonous drugs: Thomas v. Winches- ter. being handled along with other goods {%) ; and it has been held in a similar case in Massachusetts that the consignor's liability is none the less because the danger of the trans- port, and the damage actually resulting, have been in- creased by another consignor independently sending other dangerous goods by the same conveyance iji). Gas (the ordinary illuminating coal-gas) is not of itself, perhaps, a dangerous thing, but with atmospheric air forms a highly dangerous explosive mixture, and also makes the mixed atmosphere incapable of supporting life (/), Persons undertaking to deal with it are therefore bound, at all events, to use all reasonable diligence to prevent an escape which may have such results. A gas-fitter left an imperfectly connected tube in the place where he was working under a contract with the occupier; a third person, a servant of that occupier, entering the room with a light in fulfilment of his ordinary duties, was hurt by an explosion due to the escape of gas from the tube so left ; the gas-fitter was held liable as for a "misfeasance in- dependent of contract " (m). 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 purported to sell extract of dandelion to a retail druggist. The thing (t) Lyell V. Ganga Dai, I. L. E. 1 AH. 60. {k) Boston i- Albany S. R. Co. V. Shanhj (1871) 107 Mass. 568 ; ("dualin," a nitro-glycerine com- pound, and exploders, had been ordered by one customer of two separate makers, and by them separately consigned to the rail- way company without notice of their character : held on demurrer that both manufacturers were rightly sued in one action by the company). (Z) See Smith v. Boston Gas light Co., 129 Mass. 318. (m) Farnj v. Smith (1879) 4 C. P. D. 325, 48 L. J. 0. P. 731 (Lopes J.). Neghgence was found as a fact. POISONS. 457 delivered was in truth extract of belladonna, which hy the negligence of the wholesale dealer's assistant had been wrongly labelled. By the retail druggist this extract was sold to a country practitioner, and by him to a customer, who took it as and for extract of dandelion, and thereby was made seriously ill. The Court of Appeals held the wholesale dealer liable to the consumer. " The defendant was a dealer in poisonous drugs .... The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label." And the existence of a contract between the defendant and the immediate purchaser from him could make no difference, as its non-existence would have made none. "The plaintiff's injury and their remedy would have stood on the same principle, if the defendant had given the belladonna to Dr. Foord " (the country practitioner) "without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale" — or administration without sale — "on the faith of the label" (w). This case has been thought in England to go too far ; but it is hard to see in what respect it goes farther than Bixon v. Bell. So far as the cases are dissimilar, the damage would seem to be not more but less remote. If one sends belladonna into the world labelled as dandelion (the two extracts being other- wise distinguishable only by minute examination) it is a more than probable consequence that some one will take it as and for dandelion and be the worse for it : and this without any action on the part of others necessarily in- volving want of due care (o). («) Thomas v. Winchester (1852) (o) The juiy found that there 6 N. Y. 397, Bigelow L. C. 602. was not any neg-lig-ence on the The decision seems to be generally part of the intermediate dealers ; followed in America. the Court, however, were of opinion that this was immaterial. 458 DUTIES OF INSUEING SAFETY. 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. Difaoulties Nevertheless difficulties are felt in England about England: admitting this application of a principle which in other „, . .'''"• directions is both more widely and more strictly applied in Slavmgton. _ _ / ./ i i this country than in the United States {p). 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 person whom it in fact injured [q). The cause of action seems to have been treated as in the nature of deceit, and TJiotnas v. Winchester does not seem to have been known either to counsel or to the Court. In the line actually taken one sees the tendency to assume that the ground of liability, if any, must be either warranty or fraud. But this is erroneous, as the judgment in Thomas v. Winchester care- fully and clearly shows. Whether that case was well decided appears to be a perfectly open question for our courts (r) . In the present writer's opinion it is good law, and ought to be followed. Certainly it comes within the {p) See per Brett M. R., Heaven that the Court of Appeal need be V. Fender (1883) 11 Q. E. Div. at precluded from freediscussion of the p. 514, in a judgment which itself principle involved. In Lmigridge v. endeavours to lay down a much Levy (1837) 2 M. & W. at p. 530, wider rule. the Court was somewhat astute to (j) Oeorge v. SMvington (1869) avoid discussing that principle, and L. R. 5 Ex. 1, 38 L. J. Ex. 8. declined to commit itself. Dixon (r) Dixon v. Bell (1816) 5 M. & v. Bell is cited by Parke B. as a S. 198, 17 R. R. 308, Bigelow L. C. strong case, and apparently with 568 [supra^ p. 455), has never been hesitating acceptance, in Longmeid disapproved that we know of, but v. Holliday (1851) 6 Ex. 761, 20 has not been so actively followed L. J. Ex. 430. CONDITION OF BUILDINGS. 459 language of Paxke B. in Longmcid v. Holliday (s), wMcli 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 person 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. We now come to the duties imposed by law on the Duties of occupiers of buildings, or persons having the control of of build- other structures intended for human use and occupation, in^espeot in respect of the safe condition of the building or structure. °^ ^^f^ '■ ° repair. 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. Extent of in other words, on the structure being maintained under ® " y- the control and for the purposes of the person held answerable. It goes beyond the common doctrine of re- sponsibility 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 (») 20 L. J". Ex. at p. 433. 460 DUTIES OP INSURING SAFETY. duty is described as being impersonal rather than personal. Personal diligence on the part of the occupier and his servants is immaterial. The structure has to be in a reason- ably safe condition, so far as the exercise of reasonable care and skill can make it so {t). To that extent there is a limited duty of insurance, as one may call it, though not a strict duty of insurance such as exists in the classes of cases goYerned by Eylands v. Fletcher. Modem The separation of this rule from the ordinary law of the settled negligence, which is inadequate to account for it, has been ^^^^' the work of quite recent times. As lately as 1864 (u) the Indermaur J" / r. t i i\ . V. Barnes. Lord Chief Baron Pigot (of Ireland), m a very careful judgment, confessed the difSculty of discovering any general rule at all. Two years later a judgment of the Court of Common Pleas, delivered by Willes J., and con- firmed by the Exchequer Chamber, gave us an exposition which has since been regarded on both sides of the Atlantic as a leading authority («) . The plaintiff was a journey- man gas-fitter, employed to examine and test some new burners which had been supplied by his employer for use in the defendant's sugar-refinery. While on an upper floor of the building, he fell through an unfenced shaft which was used in working hours for raising and lowering 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 (il) Per Montague Smith J. in L. R. 460. See, however, Quarman Ex. Ch., Francis v. Cockrell (1870) v. Burnett (1840) 6 M. & W. at Ex. Ch. L. K. 5 Q. B. 501, 513, p. 510, where there is a suggestion 39 L. J. Q. B. 291. Other cases of the modem rule. weU showing this point are -PiciariZ (x) Indermaur v. Dames (1866) T. Smith, 10 C. B. N. S. 470 ; John L. R. 1 C. P. 274, 35 L. J. C. P. V. Bacon (1870) L. B. 5 G. P. 437, 184, 2 C. P. 311, 36 L. J. G. P. 39 L. J. 0. P. 365. 181, constantly cited in later cases, («) Sullivan v. Waters, 14 Ir. G. and reprinted in Bigelow L. C. CONDITION OF BUILDINGS. 461 ■witli the tuilding the danger was an unexpected and con- cealed one. The Couxt 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 plaintifE and the defendant had an interest, and not upon bare permission." They therefore had to deal with the general question of law "as to the duty of the occupier of a btdlding with reference to persons resort- ing thereto in the course of business, upon his invitation express or implied. The common case is that of a cus- tomer in a shop : but it is obvious that this is only one of a class " The class to which the customer belongs includes per- sons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. " And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know ; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact " {y). The Court goes on to admit that " there was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place woidd reasonably be, having regard to the contrivances necessarily used in (y) L. E. 1 C. P. at p. 288. 462 DUTIES OP INSURING SAFETY. carrying on the business." On the facts they held that " there was evidence for the jury that the plaintiff was in the place by the tacit invitation of the defendant, upon business in which he was concerned ; that there was by reason of the shaft unusual danger, known to the 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 Cham- ber (z) is little more than a simple affirmation of this. Persona It is hardly needful to add that a customer, or other safety. 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 (re). And the amount of care required is so carefully indicated by Willes J. that little remains to be said on that score. The recent cases are important chiefly as showing in respect of what kinds of property the duty exists, and what persons have the same rights as a customer. In both directions the law seems to have become, on the whole, more stringent in the present generation. With regard to the person, one acquires this right to safety by being upon the spot, or engaged in work on or about the property whose condition is in question, in the course of any business in which the occupier has an interest. It is not necessary that there should be any direct or apparent benefit to the occupier from the par- ticular transaction (&). Where gangways for access to ships in a dock were provided by the dock company, the (z) L. E. 2 C. P. 3H. the defendant's ofEoe. (fl) Chapman v. Eothicell (1858) (5) See Bolmes y. N. E. R. Co. 1 E. B. & E. 168, 27 L. J. Q. B. (1869-71) L. E. 4 Ex. 254, in Ex. 315, treated as a very plain case, Ch. L. R. 6 Ex. 123, 40 L. J. Ex. ■where a trap-door was left open in 121 ; Ifhite v. France (1877) 2 C. P. the floor of a, passage leading to D. 308, 46 L. J. C. P. 823. DUTY IN EESPECT OF STRUCTURES. 463 company has been held answerable for their safe condi- tion 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 (c). A workman was employed under contract with a ship- owner to paint his ship lying in a dry dock, and the dock-owner provided a staging for the 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 was hurt ; the dock-owner was held liable to him (d). It was contended that the staging had been delivered into the control of the ship- owner, and became as it were part of the ship ; but this was held no reason for discharging the dock-owner from responsibility for the condition of the staging as it was delivered. Persons doing work on ships in the dock " must be considered as invited by the dock-owner to use the dock and all appliances provided by the dock-owner as incident to the use of the dock "(e). Similarly, the owner of a building let in flats is answerable for the safe condition of the common staircase to persons coming to do business with any of the tenants (/). A person lawfully entering on land, or into a building, in the discharge of a public duty or otherwise with justifi- cation, would seem to be in the same position as a customer (c) Smith V. London ^ St. Katha- whioli tte Lords Justices did not n«e Doc^s Co. (1868) L. B. 3 0. P. agree. See p. 391 above. It must 326, 37 L. J. C. P. 217 (BoviU C. J. be taken as a fact, though it is not and Byles J., dub. Keating J.). clearly stated, that the defective {d) Heaven v. Pender (1883) 11 condition of the rope might have Q. B. Div. 503, 52 L. J. Q. B. 702. been discovered by reasonably (e) Per Cotton and Bowen L. JJ. careful examination when the 11 Q. B. Div. at p. 515. The staging was put up. judgment of Brett M. K. attempts (/) Milkr v. Hancock, '93, 2 Q. to lay down a wider principle with B. 177, 4 K. 478, C. A. 464 DUTIES OP INSURING SAFETY. 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 pre- cisely in point, but the question has been raised in America. Duty in The possession of any structure to which human beings carriao-ea, ^^^ intended to commit themselves or their property, ships, &c. animate or inanimate, entails this duty on the occupier, or rather controller. It extends to gangways or staging ia a dock, as we have just seen ; to a temporary stand put up for seeing a race or the like {g) ; to carriages travelling on a railway or road (li), or in which goods are despatched («') ; to ships {k) ; to wharves, in respect of the safety of the frontage for ships moored at or approaching the wharf (I) ; and to market-places [m). In the case of a wharfinger he is bound to use reason- able care to ascertain whether the bed of the harbour or river adjacent is in a safe condition to be used by a vessel coming to discharge at his wharf at reasonable times, having regard to the conditions of tide, the ship's draught of water, and the like. But this duty exists only so (g) Francis Y. Cockrell {1S70) Bx. (i) Elliott v. Ball (1885) 15 Q. Ch. L. R. 5 Q. B. 184, 501, 39 B. D. 315, 54 L. J. Q. B. 618. L. J. Q. B. 113, 291. The plain- The seUer of coals sent them to tiff had paid money for admission, the buyer in a truck with a dan- therefore there was a, duty ex con- gerously loose trap-door in it, and tractu, but the judgments in the the buyer's servant in the course Ex. Ch., see especially per Martin of unloading the truck fell through B., also affirm a duty independent and was hurt, of contract. This is one of the {k) Haijn v. Culliford (1879) i most explicit authorities showing C. P. Div. 182, 48 L. J. C. P. 372. that the duty extends to the acts of (l) The Moorcock (1889) 14 P. contractors as well as servants. Div. 64, 58 L. J. P. 73. (A) Foulkes v. Metrop. District {m) Lax v. Corporation of Sar- B. Co. (1880) 5 C. P. Div. 157, 49 lington (1879) 5 Ex. Div. 28, 49 L. J. C. P. 361 ; Moffatt y. Bateman L. J. Ex. 105. (1869) L. R. 3 P. C. 115. DUTY IN RESPECT OF CARRIAGES, SHIPS, ETC. ^65 fax as the river bed is in the wharfinger's possession or control (m). A railway passenger using one company's train with a ticket issued by another company under an arrangement made between the companies for their common benefit is entitled, whether or not he can be said to have contracted with the first-mentioned company, to reasonably safe pro- vision for his conveyance, not only as regards the construc- tion of the carriage itself, but as regards its fitness and safety in relation to other appliances (as the platform of a station) in connexion with which it is intended to be used (o). Where goods are lawfully shipped with the shipowner's consent, it is the shipowner's duty (even if he is not bound to the owner by any contract) not to let other cargo which will damage them be stowed in contact with them (p). 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(g'). («) The Calliope, '91, A. C. 11, was killed by a spiked fence round 60 L. J. P. 28, reversing tlie deci- a statue in tlie market place). A sion of the C. A., 14 P. Div. 138, good summary of the law, as far 58 L. J. P. 76, on a different view as it goes, is given in the argu- of the facts. The reasons given in ment of Cave J. (then Q.C.) for The Moorcock, note {I) above, seem the plainti£B at p. 31. The ques- to be to some extent qualified by tion of the danger being obvious this, though the decision itself is was considered not open on the approved by Lord Watson, '91, appeal; if it had been, gu. as to A. C. at p. 22. the result, per Bramwell L. J. It (o) Foulhes V. Metrop. District has been held in Minnesota (1889) It. Co. (1880) 5 C. P. Div. 157, 49 that the owner of a building fre- L. J. 0. P. 361. quented by the public is bound not (p) JSayn v. Culliford (1879) 4 C. to allow a man of known dangerous P. Div. 182, 48 L. J. C. P. 372. temper to be employed about the (q) Lax V. Corporation of Bar- building : Dean v. St. Paul Union lington (1879) 5 Ex. Div. 28, 49 Depdt Co., 29 Am. Law Eeg. 22. L. J. Ex. 105 (the plaiuti£E's cow P. H H 466 DUTIES OF INSURING SAFETY. Limits of In the various applications we have mentioned, the duty ^ ^^' does not extend to defects incapable of being discovered by the exercise of reasonable care, such as latent flaws in metal (r) ; 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 (s). Again, when the builder of a ship or carriage, or the maker of a machine, has delivered it out of his own possession and control to a purchaser, he is under no duty to persons using it as to its safe condition, unless the thing was in itself of a noxious or dangerous kind, or (it seems) unless he had actual knowledge of its being in such a state as would amount to a concealed danger to persons using it in an ordinary manner and with ordinary care {f). Volenti non Liability under the rule in Indermaur v. Dames (u) may be avoided not only by showing contributory neghgence in the plaintiff, but by showing that the risk was as well knovm to him as to the defendant, and that with such knowledge he voluntarily exposed himself to it (v) ; but this will not excuse the breach of a positive statutory duty (x). ()•) Seadhead v. Midland S. Co. Sandall T. Newson (1877) 2 Q. B. (1869) Ex. Oil. L. R. 4 Q. B. 379 ; Div. 102, 46 L. J. Q. B. 257. a, case of contract between carrier (s) Syman v. Nye (1881) 6 Q. B. and passenger, but the principle D. at p. 687. is the same, and indeed the duty [t) Winterbottom v. Wright, 10 may be put on either ground, see M. & W. 109 ; Collis v. Selden Syman t. Kye (1881) 6 Q. B. D. (1868) L. R. 3 C. P. 495, 37 L. J. 685, 689,perLindleyJ. This does C. P. 233 ; iosee v. CTwfe, 51 N. T. not however qualify the law as to 494. the seller's implied warranty on the (m) P. 460, above, sale of a chattel for a specific pur- {v) Thomas v. Quartermaine, 18 pose ; there the warranty is abso- Q. B. Div. 685, 56 L. J. Q. B. 340. lute that the chattel is reasonably (x) Dicta of L.JJ. ibid., and fit for that purpose, and there is JSaddeley v. Harl Granville (ISSl) 19 no exception of latent defects : Q. B. D. 423, 56 L. J. Q. B. 501. DUTY TOWARDS PASSERS-BY. 467 Occupiers of fixed property are under a like duty Duty towards persons passing or being on adjacent land by passers- their in-vitation in the sense above mentioned, or in the ^" exercise of an iadependent right. In Barnes v. Ward {y), the defendant, a builder, had left the area of an unfinished house open and unfenced. A person lawfully walking after dark along the public path on which the house abutted fell into the area and was killed. An action was brought under Lord Camp- bell's Act, and the case was twice argued ; the main point for the defence being that the defendant had only dug a hole in his own land, as he lawfully might, and was not under any duty to fence or guard it, as it did not interfere with the use of the right of way. The Court held there was a good cause of action, the excayation being so close to the public way as to make it unsafe to persons using it with ordinary care. The making of such an excavation amounts to a public nuisance " even though the danger consists in the risk of accidentally deviating from the road." Lately it has been held that one who by lawful authority diverts a public path is bound to provide reason- able means to warn and protect travellers against going astray at the point of diversion (z). In C'orhy v. IliU («) the plaintiff was a person using a private way with the consent of the owners and occupiers. See further Yarmouth t. France, 19 Q. B. D. 918, 54 L. J. Q. B. 310 ; Q. B. D. 647, and p. 153, above. defendants, railway contractors. Smith, v. Baker, '91, A. 0. 325, 60 had (within the statutory powers) L. J. Q. B. 683, was a case not of diverted a footpath to make the this class, hut (as the facts were line, but did not fence off the old found) of negligence in conducting direction of the path ; plaintiff, a specific operation. walking after dark, followed the [y) 9 0. B. 392, 19 L. J. 0. P old direction, got on the railway, 195 (1850) ; cp. D. 9. 2, ad leg. and fell over a bridge. Aquil. 28. [a) 4 C. B. N. S. 656, 27 L. J. («) Hurst V. Taijhr (1886) 14 C. P. 318 (1858). hh2 468 DUTIES OF INSURING SAFETY. The defendant liad the like consent, as he alleged, to put slates and other materials on the road. No light or other safeguard or warning was provided. The plaintiff's horse, being driven on the road after dark, ran into the heap of materials and was injured. It was held immaterial whether the defendant was acting under licence from the owners or not. If not, he was a mere trespasser ; but the owners themselves could not have justified putting a con- cealed and dangerotis obstruction in the way of persons to whom they had held out the road as a means of access (b). Here the plaintiff was (it seems) (c) only a licensee, but while the licence was in force he was entitled not to have the condition of the way so altered as to set a trap for him. The case, therefore, marks exactly the point in which a licensee's condition is better than a trespasser's. Presump- Where damage is done by the falhng of objects into negKgence ^ highway from a building, the modern rule is that the 'Cuitur] accident, in the absence of explanation, is of itself evidence of negligence. In other words, the burden of proof is on the occupier of the building. If he cannot show that the accident was due to some cause consistent with the due repair and careful management of the structure, he is liable. The authorities, though not numerous, are suffi- cient to establish the rule, one of them being the decision of a court of appeal. In Byrne v. Boadle {d) a barrel of flour fell from a window in the defendant's warehouse in Liverpool, and knocked down the plaintiff, who was {b) Cp. Sweeny v. Old Colony ^ to use the road for access to a pubKo Newport R. S. Co. (1865) 10 Allen tuilding (the Hanwell Lunatic (Mass.) 368, and Bigelow L. C. Asylum) did not amount to an 660. "invitation" in the special sense (c) The language of the judg- of this class of oases, ments leaves it not quite clear (aT) 2 H. & C. 722, 33 L. J. Ex. ■whether the continued permission 13, and ia Bigelo"w L. C. 578 (1863). SSS IPSA ZOQUITUS. 469 lawfully passing in the public street. There was no evidence to show how or by whom the barrel was being handled. The Court said this was enough to raise against the defendant a presumption of negligence which it was for him to rebut. "It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out. ... A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence" (c). This was followed, perhaps extended, in Kearney v. London, Brighton and South Coast Railway Co. (/). There as the plaintiff was passing along a highway spanned by a railway bridge, a brick fell out of one of the piers of the bridge and struck and injured him. A train had passed immediately before. There was not any evidence as to the condition of the bridge and brickwork, eseept that after the accident other bricks were found to have fallen out. The Court held the maxim " res ipsa loquitur " to be applicable. " The defendants were under the common law liability to keep the bridge in safe condition for the public using the highway to pass under it;" and when " a brick fell out of the pier of the bridge without any assignable cause except the slight vibration caused by a passing train," it was for the defendants to show, if they could, that the event was consistent with due diligence {e) Per PoUock 0. B. Cp. Scott above. T. London Dock Co. (1865) 3 H. & (/) Ex. Ch. L. E. 6 Q. B. 759, C. 696, 34 L. J. Ex. 220, p. 400, 40 L. J. Q. B. 286 (1871). 470 DUTIES OF INSURING SAFETY. having teen used to keep tlie bridge in safe repair (g). This decision has been followed, in the stronger case of a whole buildiag falling into the street, in the State of New York. " Buildings properly constructed do not fall with- out adequate cause" {h). In a later case ((') the occupier of a house from which a lamp projected over the street was held liable for damage done by its fall, though he had employed a competent person (not his servant) to put the lamp in repair : the fall was in fact due to the decayed condition of the attachment of the lamp to its bracket, which had escaped notice. " It was the defendant's duty to make the lamp reasonably safe, the contractor failed to do that .... therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences" (/). In this case negligence on the contractor's part was found as a fact. Combining the principles affirmed in these authorities, we see that the owner of property abutting on a highway is under a positive duty to keep his property from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reason- able care and skill can guard against. Distino- But where an accident happens in the course of doing on fixed property work which is proper of itself, and not usually done by servants, and there is no proof either that the work was under the occupier's control or that the acci- dent was due to any defective condition of the structure itself with reference to its ordinary purposes, the occupier iff) Per Cur. L. E. 6 Q. B. at (i) Tarry v. Ashton (1876) 1 Q. - pp. 761, 762. B. D. 314, 45 L. J. Q. B. 260. (A) Mullen v. St. John, 57 N. T. (/) Per Blackburn J. at p. 319. 667, 669, DISTINCTIONS. 471 is not liable (k). In other words, he does not answer for the care or skill of an independent and apparently com- petent contractor ia the doing of that which, though connected with the repair of a structure for whose con- dition the occupier does answer, is in itself merely incident to the contractor's business and under his order and control. There are cases involving principles and considerations very similar to these, but concerniag the special duties of adjacent landowners or occupiers to one another rather than any general duty to the public or to a class of persons. We must be content here to indicate their existence, though in practice the distinction is not always easy to maintain (l). Thus far we have spoken of the duties owed to persons Position of who are brought within these risks of unsafe condition or repair by the occupier's invitation on a matter of common interest, or are there in the exercise of a right. "We have still to note the plight of him who comes on or near another's property as a " bare hcensee." Such an one appears to be (with the possible exception of a mortgagee in possession) about the least favoured in the law of men who are not actual wrong-doers. He must take the property as he finds it, and is entitled only not to be led into danger by " something like fraud " (m). Persons who by the mere gratuitous permission of owners or occupiers take a short cut across a waste piece (k) Welfare v. London f Brighton {t) See Bower v. Peate (1876) 1 M. Co. (1869) L. E. 4 Q. B. 693, Q. B. D. 321, 45 L. J. Q. B. 446 ; 38 L. J. Q. B. 241 ; a decision on Sughea v. Percival (1883) 8 App. peculiar facts, where perhaps a Ca. 443, 62 L. J. Q. B. 719 ; and very little more evidence might cp. fforAaw v. ffross, 125 Mass. 232. have turned the scale in favour of [m) WUles J., Gautret v. JEgerton the plaintiff. (1867) L. R. 2 C. P. at p. 375. 473 DUTIES OF INSURING SAFETY. of land («), or pass over private bridges (o), or have the run of a building (/;), cannot expect to find the land free from holes or ditches, or the bridges to be in safe repair, or the passages and stairs to be commodious and free from dangerous places. If the occupier, while the permission continues, does something that creates a concealed danger to people availing themselves of it, he may well be liable (g). And he would of course be liable, not for failure in a special duty, but for wilful wrong, if he pur- posely made his property dangerous to persons using ordinary care, and then held out his permission as an inducement to come on it. Apart from this improbable case, the licensee's rights are measured, at best, by the actual state of the property at the time of the licence. " If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences : but, if I do nothing, I am not" (r). The occupier of a yard in which machinery was in motion allowed certain workmen (not employed in his own business) to use, for their own convenience, a path crossing it. This did not make it his duty to fence the machinery at all, or if he did so to fence it sufBciently ; though he might have been liable if he had put up an insecure guard which by the false appearance of security acted as a trap (.s). The plaintiff, by having permission to use the path, had not the right to find it in any particular state of safety or convenience. (n) Sounsell v. Smyth (1860) 7 (?) Corby v. Sill (1858) 4 C. B. C. B. N. S. 731, 29L. J. C. P. 203. N. S. 656, 27 L. J. C. P. 318, (o) Gautret v. Egerton (1867) L. p. 467, above. R. 2 C. P. 371, 36 L. J. C. P. 191. (»■) WiUes J., L. E. 2 C. P. at (p) Sullivan v. Waters (1864) 14 p. 373. Jr. C. L. R. 460. (s) Bolch t. Smith (1862) 7 H. & N. 736, 31 L. J. Ex. 201. POSITION OF LICENSEES. 473 " Permission involves leave and licence, but it gives no nght. If I avail myself of permission to cross a man's land I do so by virtue of a licence, not of a right. It is • an abuse of language to call it a right : it is an excuse or licence, so that the party cannot be treated as a tres- passer" (^). In the language of Continental jurisprudence, there is no question of culpa between a gratuitous licensee and the licensor, as regards the safe condition of the property to which the licence applies. Nothing short of dolus will make the licensor liable {u) . Invitation is a word applied in common speech to the Host and relation of host and guest. But a guest (that is, a visitor who does not pay for his entertainment) has not the benefit of the legal doctrine of invitation in the sense now before us. He is in point of law nothing but a licensee. The reason given is that he cannot have higher rights than a member of the household of which he has for the time being become, as it were, a part [x). All he is entitled to is not to be led into a danger known to his host, and not known or reasonably apparent to himseli. [t) Martin B., 7 H. & N. at p. to wMeh the tenant was exposed 745. Batchehr v. Fortescue (1883) might not have well been held to 11 Q. B. Div. 474, 478, seems rather be in the nature of a trap. The to stand upon the ground that the defect was a non-apparent one, plaintiff had gone out of his way and the landlord knew of it. to create the risk for himself. As («) Cp. Blakemore v. Bristol and between himself and the defendant, Exeter S. Co. (1858) 8 E. & B. he had no title at aU to be where 1035, 27 L. J. Q. B. 167, where it he was. Cp. D. 9. 2. ad. leg. Aqml. seems that the plaintiEE's intestate 31, ad Jin. "culpa ab eo exigenda was not even a licensee ; but see 11 non est, cum divinare non potuerit Q. B. D. 516. an per eum loomn aliquis transi- [x) Southcote v. Stanley (1856) 1 turns sit." In Ivai/ v. Sedi/es {IS82) H. & N. 247, 25 L. J. Ex. 339. 9 Q. B. D. 80, the question was But quaere if this explanation be more of the terms of the contract not obseurum per obscurius. Cp. between landlord and tenant than Abraham v. Reynolds, 5 H. & N. of a duty imposed by law. Quaere, at p. 148, where the same line of whether in that case the danger thought appears. 474 DUTIES or INSURING SAFETY, On the same principle, a man who offers another a seat in his carriage is not answerable for an accident due to any defect in the carriage of which he was not aware (y). Liability It may probably be assumed that a licensor is answer- for"ordi- able to the licensee for ordinary negligence (s), in the Sgrace^"' sense that his own act or omission will make him liable if it is such that it would create liability as between two persons having an equal right to be there : for example, if J. S. allows me to use his private road, it will hardly be said that, without express warning, I am to take the risk of J. S. driving furiously thereon. But the whole subject of a licensee's rights and risks is still by no means free from difficulty. Liability of owner not in occupa- tion? It does not appear to have been ever decided how far, if at all, an owner of property not in possession can be sub- ject to the kind of duties we have been considering. "We have seen that in certain conditions he may be liable for nuisance (a) . But, since the ground of these special duties regarding safe condition and repair is the relation created by the occupier's express or tacit " invitation," it may be doubted whether the person injured can sue the owner in the first instance, even if the defect or default by which he suffered is, as between owner and occupier, a breach of the owner's obligation. («/) Mofatt V. Baieman (1869) L. R. 3 P. C. 115. (z) Horace Smith 38, Campbell 119. [a) See p. 387, above. Campbell, pp. 26, 27. 475 CHAPTEE XIII. SPECIAL RELATIONS OF CONTRACT AND TORT. The original theory of tlie common law seems to have Original been that there were a certain number of definite and forms of mutually exclusive causes of action, expressed in appro- ^''^^°^- priate forms. The test for ascertaining the existence or non-existence of a legal remedy in a given case was to see whether the facts could be brought under one of these forms. Not only this, but the party seeking legal redress had to discover and use the right form at his peril. So had the defendant if he relied on any special ground of defence as opposed to the general issue. If this theory had been strictly carried out, confusion between forms or causes of action would not have been possible. But strict ad- herence to the requirements of such a theory could be kept up only at the price of intolerable inconvenience. Hence not only new remedies were introduced, but relaxa- tions of the older definitions were allowed. The number of cases in which there was a substantial grievance without remedy was greatly diminished, but the old sharply drawn lines of definition were overstepped at various points, and became obscured. Thus different forms and causes of action overlapped. In many cases the new form, having been introduced for greater practical convenience, simply took the place of the older, as an alternative which in prac- tice was always or almost always preferred : but in other cases one or another remedy might be better according to 476 SPECIAL RELATIONS OF CONTRACT AND TORT. the circumstances. Hence different remedies for similar or identical causes of action remained in use after the freedom of choice had been established with more or less difficulty. On the debateable ground thus created between those states of fact which clearly give rise to only one kind of action and those which clearly offered an alternative, there arose a new kind of question, more refined and inde- terminate than those of the earlier system, because less reducible to the test of fixed forms. Actions on The great instrument of transformation was the intro- e case, (j^otion of actions on the case by the Statute of West- minster {a) . Certain types of action on the case became in effect new and well recognized forms of action. But it was never admitted that the virtue of the statute had been exhausted, and it was probably rather the timidity of pleaders than the unwillingness of the judges that pre- vented the development from being even greater than it was. It may be asked in this connexion why some form of action on the case was not devised to compete with the jurisdiction of the Court of Chancery in enforcing trusts. An action on the case analogous to the action of account, if not the action of account itself, might well have been held to lie against a feoffee to uses at the suit of cestui que use. Probably the reason is to be sought in the inadequacy of the common law remedies, which no expansion of plead- ing could have got over. The theory of a system of equit- able rights wholly outside the common law and its process, and inhabiting a region of mysteries unlawful for a com- mon lawyer to meddle with, was not the cause but the consequence of the Court of Chancery's final triumph. (ffl) 13 Edw. I., o. 24. ACTIONS ON THE CASE. 477 The history of the Roman legis actiones may in a general way be compared with that of common law pleading in its earlier stages; and it may be found that the praetorian actions haye not less in common with our actions on the case than with the remedies peculiar to courts of equity, which our test-writers have habitually likened to them. Forms of action are now abolished in England. But Causes of the forms of action were only the marks and appointed modem trappings of causes of action ; and to maintain an action ^g^^o/^" there must still be some cause of action known to the law. tl^em as -T-n . . founded on Where there is an apparent alternative, we are no longer contract or bound to choose at o\ir peril, and at the very outset, on which ground we will proceed, but we must have at least one definite ground. The question, therefore, whether any cause of action is raised by given facts is as important as ever it was. The question whether there be more than one is not as a rule material in questions between the same parties. But it may be (and has been) material under exceptional conditions : and where the suggested distinct causes of action affect different parties it may stiU be of capital importance. In modem English practice, personal (b) causes of action cognizable by the superior courts of common law (and now by the High Court in the jurisdiction derived from them) have been regarded as arising either out of contract or out of wrongs independent of contract. This division was no doubt convenient for the working lawyer's ordinary uses, and it received the high sanction of the framers of the Common Law Procedure Act, besides other statutes dealing with procedure. But it does not rest on any historical [b) I do not ttink it was ever attempted to bring the real actions under this classification. 478 SPECIAL RELATIONS OP CONTRACT AND TORT. Classes of questions arising. authority, nor can it be successfully defended as a scientific dichotomy. In fact the historical causes above mentioned have led to intersection of the two regions, with consider- able perplexity for the consequence. We have causes of action nominally in contract which are not founded on the breach of any agreement, and we have torts which are not in any natural sense independent of contract. This border-land between the law of tort and the law of contract will be the subject of examination in this chapter. The questions to be dealt with may be distributed under the following heads : — 1. Alternative forms of remedy on the same cause of action. 2. Concurrent or alternative causes of action. 3. Causes of action in tort dependent on a contract not between the same parties. 4. Measure of damages and other incidents of the remedy. One cause of action and alter- native remedies. I. — Alternative Forms of Remedy on the same Cause of Action. It may be hard to decide whether particular cases fall under this head or under the second, that is, whether there is one cause of action which the pleader has or had the choice of describing in two ways, or two distinct causes of action which may possibly confer rights on and against different parties. In fact the most difficult questions we shall meet with are of this kind. The com- Misfeasance in doing an act in itself not unlawful is doctonr ground for an action on the case (c). It is immaterial (c) And strictly, not for an ac- classes of facts which may be tion of trespass ; but there are regarded as constituting either ALTERNATIVE REMEDIES. 479 tliat the act was not one •whicli the defendant was bound to of mis- do at all ((f). If a man will set about actions attended with risk to others, the law casts on him the duty of care and competence. It is equally immaterial that the defen- dant may have bound himself to do the act, or to do it competently. The undertaking, if undertaking there was in that sense, is but the occasion and inducement of the wrong. From this root we have, as a direct growth, the whole modern doctrine of negligence. We also have, by a more artificial process, the modern method of enforcing simple contracts, through the specialized form of this kind of action called assumpsit (e) : the obligation being extended, by a bold and strictly illogical step, to cases of pure non-feasance (/), and guarded by the requirement of consideration. Gradually assumpsit came to be thought of as founded on a duty ex contractu ; so much so that it might not be joined with another cause of action on the case, such as conversion. From a variety of action on the wrongs of misfeasance (case), or not showing by whom the surgeon acts which might be justified was retained or to be paid. As to imder some common or particular the assumption of special skiU being claim of right, but not being duly material, see Shiells v. Blackhurne done fail of such justidoation and (1789) 1 H. Bl. 158, 2 E. R. 730. are merely wrongful (trespass). (e) 0. W. Holmes, The Common (rf) Gladwell v. Steggall (1839) 5 Law, pp. 274 sqq. ; J. B. Ames in Bing. N. C. 733, 8 Scott, 60, 8 L. Harv. Law Rev. ii. 1, 53. J. C. P. 361; action by an infant for (/) An analogy to this in the incompetence in surgical treatment. Roman theory of culpa, under the In such an action the plaintifE's Lex Aquilia, can hardly be sus- consent is material only because tained. See the passages in D. without it the defendant would be 9. 2. collected and discussed in Dr. a mere trespasser, and the iucom- Grueber's treatise, at pp. 87, 209. petence would not be the gist of On the other hand the decision in the action, but matter for aggra- Slade's case, 4 Co. Rep. 91 u, that vation of damages. To the same the existence of a cause of action efEeot is Fippin v. Sheppard (1822) in debt did not exclude assumpsit, 11 Price 400, holding that a deola- was in full accordance with the ration against a stirgeon for im- original conception, proper treatment was not bad for 480 SPECIAL RELATIONS OP CONTEACT AND TORT. case it had become a perfect species, and in common use its origin was forgotten. But the old root was there still, and had life in it at need. Thus it might happen that facts or pleadings which in the current modem view showed an imperfect cause of action in assumpsit would yet suffice to give the plaintifE judgment on the more ancient ground of misfeasance in a duty imposed by law. In the latest period of common law pleading the House of Lords upheld in this manner a declaration for negligence in the execution of an employment, which averred an undertaking of the employment, but not any promise to the plaintiff, nor, in terms, any consideration {g) . And it was said that a breach of duty in the course of employment under a con- tract would give rise to an action either in contract or in tort at the plaintiff's election {h) . This, it wiU be seen, is confined to an active misdoing ; notwithstanding the verbal laxity of one or two passages, the House of Lords ■ did not authorize parties to treat the mere non-performance of a promise as a substantive tort («'). Until the beginning of this century it was the common practice to sue in tort for the breach of an express warranty, though it was need- less to allege or prove the defendant's knowledge of the assertion being false {J). On the other hand, it was held for a considerable time (k) {ff) Brown v. Boorman (1844) 11 the course of the argument. la CI. & F. 1. The defendant's that case it was attempted to join pleader appears to have been counts, which were in substance unable to refer the declaration to for the non-payment of a bill of any certain species ; to make sure exchange, with a count in trover, of having it somewhere he pleaded (j) Williamson Y.Allison (1802) — (1) not guilty; (2) non assump- 2 East 446. sit; (3) a traverse of the alleged {k) 'From 1695, Salstony.J'anson, employment. 5 Mod. 89, 1 Ld. Raym. 58, till (h) Per Lord Campbell. 1766, when the last-mentioned case (i) Courtenay v. Earle (1850) 10 and others to the same efEect were C. B. 73, 20 L. J. C. P. 7. See overruled in Dickon v. Glifton, 2 especially the dicta of Maule J. in Wila. 319. NEGLIGENCE AND ASSUMPSIT. 481 that an aotioii against a common carrier for loss of goods, even -when framed in tort, " sounded in contract " so much that it could not be distinguished from assumpsit, and a count so framed could not be properly Joined with other forms of case, such as trover. At a later time it was held, for the purpose of a plea in abatement, that the declaration against a carrier on the custom of the realm was in sub- stance ex contractu (I). There are certain kinds of employment, namely those of a carrier and an innkeeper, which are deemed public in a special sense. If a man holds himself out as exercising one of these, the law casts on him the duty of not refusing the benefit thereof, so far forth as his means extend, to any person who properly applies for it. The innkeeper must not without a reasonable cause refuse to entertain a traveller, or the carrier to convey goods. Thus we have a duty attached to the mere profession of the employment, and antecedent to the formation of any contract; and if the duty is broken, there is not a breach of contract but a tort, for which the remedy under the common law forms of pleading is an action on the case. In effect refusing to enter into the appropriate contract is of itself a tort. Duties of the same class may be created by statute, ex- pressly or by necessary implication ; they are imposed for the benefit of the public, and generally by way of return for privileges conferred by the same statutes, or by others in pari materia, on the persons or corporations who may be concerned. Here the duty is imposed by the general law, though by Special a peculiar and somewhat anomalous rule ; and it gives rise carriers to an obligation upon a simple non-feasance, unless we te^Ss by {I) Buddie v. WiUson (1795) 6 T. R. 369, 3 E. R. 202, see Mr. Campbell's note at p. 206. 482 SPECIAL RELATIONS OF CONTRACT AND TORT. ' ' custom of the realm." Alterna- tive of foim does not afEeot substance of duty or liability. say that tlie profession of a " public employment " in this sense is itself a continuing act, in relation to which the refusal to exercise that employment on due demand is a misfeasance. But on this latter view there would be no reason why the public profession of any trade or calling whatever should not have the like consequences ; and such an extension of the law has never been proposed. The term " custom of the realm " has been appropriated to the description of this kind of duties by the current usage of lawyers, derived apparently from the old current form of declaration. It seems however that in strictness " custom of the realm " has no meaning except as a synonym of the common law, so that express averment of it was superfluous (/) . Even where the breach of duty is subsequent to a com- plete contract in any employment of this kind, it was long the prevailing opinion that the obligation was still founded on the custom of the realm, and that the plaintiff might escape objections which (under the old forms of procedure) would have been fatal in an action on a contract (m). In all other cases under this head there are not two distinct causes of action even in the alternative, nor dis- tinct remedies, but one cause of action with, at most, one remedy in alternative forms. And it was an established rule, as long as the forms of action were in use, that the rights and liabilities of the parties were not to be altered by varying the form. Where there is an undertaking without a contract, there is a duty incident to the under- taking (w), and if it is broken there is a tort, and nothing [i] Fozzi V. Shipton (1839) 8 A. & E. 963, 975, 8 L. J. Q. B. 1. Cp. Tattan v. (?. TT. S. Co. (1860) 2 E. & E. 844, 29 L. J. Q. B. 184, T. B. 2 Hen. IV. 18, pi. 5. (m) Fozzi T. Shipton, last note. («) Gladwell t. Steggall (1 839) 5 Biug. N. 0. 733, 8 Scott 60, 8 L.J. 0. P. 361. ALTERNATIVE FORMS. 483 else. The rule that if there is a specific contract, the more general duty is superseded by it, does not prevent the general duty from being relied on where there is no con- tract at all (o). Even where there is a contract, our autho- rities do not say that the more general duty ceases to exist, or that a tort cannot be committed ; but they say that the duty is "founded on contract." The contract, with its incidents either express or attached by law, becomes the only measure of the duties between the parties. There might be a choice, therefore, between forms of pleading, but the plaintifE could not by any device of form get more than was contained in the defendant's obligation xmder the contract. Thus an infant could not be made chargeable for what was in substance a breach of contract by suing him in an action on the case ;" and the rule appears to have been first laid down for this special purpose. All the infants in England would be ruined, it was said, if such actions were allowed {p). So a purchaser of goods on credit, if the vendor resold the goods before default in payment, could treat this as a conversion and sue in trover ; but as against the seller he could recover no more than his actual damage, in other words the sxibstance of the right was governed wholly by the contract [q). Tet the converse of this rule does not hold without qualification. There are cases in which the remedy on a contract partakes of the restrictions usually incident to the remedy for a tort ; but there are also cases in which not only an actual contract, but the fiction of a contract, can (o) Austin y. G. W. Z. Co. (1867) wilful fraud made no difference : L. R. 2 Q. B. 442, wliere the judg- Green v. Greenhanlc (1816) 2 Marsh, ment of Blackburn J. givea the 485 ; 17 R. R. 529. true reason. See further below. (y) Chinery v. Viall (1860) 5 H. {p) Jennings v. Bundall (1799) 8 & N. 288, 29 L. J. Ex. 180 ; p. 325, T. R. 335, 4 R. R. 680 ; p. 60, above. above. The addition of a count charging ii2 484 SPECIAL RELATIONS OP CONTRACT AND TORT. be made to afford a better remedy than the more obvious manner of regarding the facts. Moreover it was held, for the benefit of plaintiffs, that where a man had a substantial cause of action on a con- tract he should not lose its incidents, such as the right to a verdict for nominal damages in default of proving special damage, by framing his action on the case (r). In modern Now that f orms of pleading are generally abolished or oMig-ation greatly simplified, it seems better to say that wherever IS wholly there is a contract to do something, the obligation of the m con- _ . . tract. contract is the only obligation between the parties with regard to the performance, and any action for failure or negligence therein is an action on the contract ; and this whether there was a duty antecedent to the contract or not. So much, in effect, has been laid down by the Court of Appeal as regards the statutory distinction of actions by the County Courts Act, for certain purposes of costs, as being "founded on contract" or "founded on tort"(s). But injury by active misfeasance, which would have been a tort if there had not been any contract, is still a tort (i). From this point of view the permanent result of the older theory has been to provide a definite measure for duties of voluntary diligence, whether undertaken by contract or gratuitously, and to add impKed warranties of exceptional stringency to the contracts of carriers, inn- keepers, and those others (if any) whose employments fall (r) Marzetti v. Williams (1830) 1 1 ; p. 482, above. B. & Ad. 415 ; action by customer [t) Taylor t. M. S. f L. R. Co., against banker for dishonouxing '95, 1 Q. B. 134, 14 E. Jan. 350, cheque. 64 L. J. Q. B. 6 C.IA. (porter shut (.■!) Fleming v. Manchester, Shef- carriage door on plaintifE's thumb). JieM ^ Lincolnshire £. Co. (1878) i The enactment is s. 116 of the Q. B. D. 81. It is impossible to Coimty Courts Act, 1888, super- reconcile the grounds of this deoi- seding a similar section in the re- sion with those of Fozzi v. Shipton pealed Act of 1867. (1839) 8 A. & E. 963, 8 L. J. Q. B. LIMITS OF THE RULE. 485 under the special rule attributed to the " custom of the realm" («/). All these rules and restrictions, however, must be taken Limits of with regard to their appropriate subject-matter. They do not exclude the possibility of cases occurring in which there is more than an alternative of form. If John has contracted with Peter, Peter cannot make John liable beyond his contract ; that is, where the facts are such that a cause of action would remain if some necessary element of contract, consideration for example, were subtracted, Peter can, so to speak, waive John's promise if he think fit, and treat him in point of form as having committed a wrong ; but in point of substance he cannot thereby make John's position worse. In saying this, however, we are still far from saying that there can in no case be a relation between Peter and John which includes the facts of a contract (and to that extent is determined by the obligation of the contract), but in some way extends beyond those facts, and may produce duties really independent of contract. Much less have we said that the existence of such a relation is not to be taken into account in ascertaining what may be John's duties and liabilities to "William or Andrew, who has not any contract with John. In pursuing such questions we come upon real difficulties of principle. This class of cases will furnish our next head. (m) It lias been suggested that a 19 ; but the decision was reversed sbipowner may be xmder this re- on appeal, 1 C. P. D. 423,45 L. J. sponsibUity, not because he is a 0. P. 697, and the propositions of common carrier, but by reason of the Court below specifically con- a distinct though similar custom troTerted by Cockbum C. J., see extending to shipowners who carry 1 C. P. D. atpp. 426 *yj. I am not goods for hire without being com- aware of any other kind of employ- mon carriers ; Nugent v. Smith ment to which the " custom of the (1876) 1 0. P. D. 14, 45 L. J. G. P. realm " has been held to applyv 486 SPECIAL RELATIONS OF CONTRACT AND TORT. Concur- rent causes of action. II. — Concurrent Causes of Action. Herein we have to cousider — (a) Cases where it is doubtful whether a contract has been formed or there is a contract " implied in law " without any real agreement in fact, and the same act which is a breach of the contract, if any, is at all events a tort ; (b) Oases where A. can sue B. for a tort though the same facts may give him a cause of action against M. for breach of contract ; (e) Oases where A. can sue B. for a tort though B.'s misfeasance may be a breach of a contract made not with A. but with M. Cases of tort, whether contract or no contract between same parties (a) There are two modern railway cases in which the majority of the Oourt held the defendants liable on a contract, but it was also said that even if there was no contract there was an independent cause of action. In Denton v. Great Northern Railway Company (ti), an in- tending passenger was held to have a remedy for damage sustained by acting on an erroneous announcement in the company's current time-table, probably on the footing of the time-table being the proposal of a contract, but cer- tainly on the ground of its being a false representation. In Austin v. Great Western Railivay Company {x), an action for harm suffered in some accident of which the nature and particulars are not reported, the plaintiff was a young child just above the age up to which children were entitled to pass free. The plaintiff's mother, who had («() 5 E. & B. 860, 25 L. J. Q. E. 129 (1856), see p. 273 above, and Principles of Contract, 6th ed. 15, 16. The case is perhaps open to the remark that a doubtful tort and the breach of a doubtful contract were allowed to save one another from adequate criticism. [x) L. E. 2 Q. B. 442 (1867). INDEPENDENT CAUSES OF ACTION. 487 oliarge of him, took a ticket for herself only. It was held that the company was liable either on an entire contract to carry the mother and the child (enuring, it seems, for the benefit of both, so that the action was properly brought by the child) («/), or independently of contract, because the child was accepted as a passenger, and this cast a duty on the company to carry him safely (s). Such a passenger is, in the absence of fraud, in the position of using the railway company's property by invitation, and is entitled to the protection given to persons in that position by a class of authorities now well established (a). Whether the company is under quite the same duty towards him, in respect of the amount of diligence required, as towards a passenger with whom there is an actual contract, is not so clear on principle (b). The point is not discussed in any of the cases now under review. Again if a servant travelling with his master on a rail- way loses his luggage by the neghgence of the company's servants, it is immaterial that his ticket was paid for by his master, and he can sue in his own name for the loss. Even if the payment is not regarded as made by the master as the servant's agent, as between themselves and the company (c), the company has accepted the servant and his goods to be carried, and is answerable upon the general duty thus arising, a duty which would still exist if the passenger and his goods were lawfully in the train ■without any contract at all(c?). Evidently the plaintiff in (y) Per Lusli J. at p. 447. L. K. 3 P. 0. 115. (z) Per Blackburn J. at p. 445, (c) Suppose the master by aooi- and see per Grove J. in Foulkes v. dent had left his money at home, Metrop. District M. Co. (1880) 4 C. and the servant had paid both fares P. D. at p. 279, 48 L. J. C. P. 555. out of his own money : could it be (a) See Chap. XII. p. 460 above; argued that the master had no and cp. Tat/lor's ca. note ((), p. 484, contract with the company ? above. {^) Marshall v. York, NewcastU {!)) SdeMofattr,Bate7mn{lS69) f Berwick S. Co. (1851) 11 C, B, 488 SPECIAL EELATIONS OF CONTRACT AND TORT. a case of tMs kind must make his choice of remedies, and cannot have a double compensation for the same matter, first as a breach of contract and then as a tort; at the same time the rule that the defendant's liability must not be increased by varying the form of the claim is not here applicable, since the plaintifE may rely on the tort not- withstanding the existence of doubt whether there be any contract, or, if there be, whether the plaintiff can sue on it. Contract On the other hand we have cases m which an obvious " implied in la-w" and waiver in law" tort is turned into a much less obvious breach of contract of tOT^^*"^ with the undisguised purpose of giving a better and more convenient remedy. Thus it is an actionable wrong to retain money paid by mistake, or on a consideration which has failed, and the like ; but in the eighteenth century the fiction of a promise " implied in law " to repay the money so held was introduced, and afforded " a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to refund" {e), and even to cases where goods taken or retained by wrong had been converted into money. The plaintiff was said to " waive the tort " for the purpose of suing in assumpsit on the fictitious contract. Hence the late Mr. Adolphus wrote in his idyllic poem " The Oircuiteers " : ' ' Thoughts much too deep for tears subdue the Court When I assumpsit bring, and godlike waive a tort " (/) . This kind of action was much fostered by Lord Mans- field, whose exposition confessed the fiction of the form while it justified the utility of the substance {g). It was 655, 21 L. J. C. P. 34 ; approved (/) L. Q. E. i. 233. by Blackburn J. in ^Ms<»«v. ff. IF. {g) Moses v. Macferlan, 2 Burr. M. Co., note (x), p. 486. 1005 ; op. Leake on Contracts, 3rd («) Blackst. iii. 163. ed. 54, 70,71. As to thelimits of tie IMPLIED WARRANTY OF AGENT's AUTHORITY. 489 carried so far as to allow the master of an apprentice who had been enticed away to sue the person who had wrong- fully employed him in an action of indebitatus assumpsit for the value of the apprentice's work ih). Within still recent memory an essentially similar fiction Implied of law has been introduced in the case of an ostensible of agent's agent obtaining a contract in the name of a principal ^moiUnJ. whose authority he misrepresents. A person so acting is ^'"'y'*')- liable for deceit only if the misrepresentation is fraudulent, and that liability (when it exists), being purely in tort, does not extend to his executors. Neither can the pro- fessed agent, whether acting in good faith or not, be held personally liable on a contract which he purported to make in the name of an existing principal, though for some time it was a current opinion that he was so liable. To meet these difficulties it was held in Collen v. Wright (i) that when a man purports to contract as agent there is an implied warranty that he is really authorized by the person named as principal, on which warranty he or his estate will be answerable ecc contractu. Just as in the case of the old " common counts," the fact that the action lies against executors shows that there is not merely one cause of action capable of being expressed, under the old system of pleading, in diSerent ways, but two distinct though con- current causes of action, with a remedy upon either at the plaintiff's election. We pass from these to the more troublesome cases where the causes of action in contract and in tort are not between the same parties. option to sue in assumpsit in such (h) Lightly v. Clouston (1808) 1 cases, see "Waiver of Tort, by Prof. Taunt. 112, 9 K. R. 713. W. A. Keener, Harr. Law Rev. vi. (i) Ex. Ch. (1857) 8 E. & B. 6i7, 223. 27 L. J. Q. B. 216. 490 SPECIAL RELATIONS OF CONTRACT AND TORT. Concur- rent causes of action against dfiferent parties in contract and in tort. Dalyell v. Tyrer. Foulkes v. Met. Dist, S. Go. (b) There may be two causes of action with a common plaintiff, or the same facts may give Z. a remedy in con- tract against A. and also a remedy in tort against B. The lessee of a steam ferry at Liverpool, having to meet an unusual press of traffic, hired a vessel with its crew from other shipowners to help in the work of the ferry for a day. The plaintiff held a season-ticket for the ferry, and therefore had a contract with the lessee to be carried across with due skill and care. He crossed on this day in the hired vessel ; by the negligence of some of the crew there was an accident in mooring the vessel on her arrival at the farther shore, and the plaintiff was hiixt. He sued not the lessee of the ferry but the owners of the hired vessel ; and it was held that he was entitled to do so. The persons managing the vessel were still the servants of the defendants, her owners, though working her under a contract of hiring for the purposes of the ferry ; and the defendants would be answerable for their negligence to a mere stranger lawfully on board the vessel or standing on the pier at which she was brought up. The plaintiff was lawfully on their vessel with their consent, and they were not the less responsible to him because he was there in exercise of a right acquired by contract upon a considera- tion paid to some one else (k) . A leading decision on facts of this kind was given by the Court of Appeal in 1880 (/). The plaintiff, a railway passenger with a return ticket alighting at his destination at the end of the return journey, was hurt by reason of the carriages being unsuit- {k) Dalyell Y. Tyrer (1858) E. B. & E. 899, 28 L. J. Q. B. 62. {I) Foulkes v. Metrop. Dist. S. Co,, 6 C. p. Div. 157, 49 L. J. C, P, 361. Cp. Serringer v. G. E. S. Co. (1879) 4 C. P. D. 163, 48 L, J, C. P. 400. DOUBLE EIGHT OF ACTION. 491 able to the height of the platform at that station. This station and platform belonged to one company (the South Western), by whose clerk the plaintiff's ticket had been issued: the train belonged to another company (the District) who used the station and adjoining line under running powers. There was an agreement between the two companies whereby the profits of the traffic were divided. The plaintiff sued the District Company, and it was held that they were liable to him even if his contract was with the South Western Company alone. The District Company received him as a passenger in their train, and were bound to provide carriages not only safe and sound in themselves, but safe with reference to the perma- nent way and appliances of the line. In breach of this duty they provided, according to the facts as determined by the jury, a train so ordered that "in truth the combined arrangements were a trap or snare," and would have given the plaintiff a cause of action though he had been carried gratuitously (ot). He had been actually received by the defendants as a passenger, and thereby they undertook the duty of not exposing him to unreasonable peril in any matter incident to the journey. (c) There may be two causes of action with a common Causes of defendant, or the same act or event which makes A. liable oontraoT for a breach of contract to B. may make him liable for a ^"^^^''^f tort to Z. ^I""^^ plamtiiis. The case already mentioned of the servant travelling by railway with his master would be an example of this if it were determined on any particular state of facts that the (m) BramweU L. J., 5 C. P. Div. leaves it capable of doubt wlietlier at p. 159. See tbe judgment of the defendants would have been Thesiger, L. J. for a fuller state- liable for a mere non-feasance ; ment of the nature of the duty. Taylor's ca. (p. 495, below), doea Comparison of these two judgments not remove that doubt, 492 SPECIAL RELATIONS OF CONTRACT AND TORT. railway company contracted only with tlie master. They would not be less under a duty to the servant and liable for a breach thereof because they might also be liable to the master for other consequences on the ground of a breach of their contract with him {n). Again, an officer in Her Majesty's service and his baggage were carried under a contract made with the carriers on behalf of the Government of India ; this did not prevent the carriers from being liable to the officer if his goods were destroyed in the course of the journey by the negligence of their servants. " The contract is no concern of the plaintiif 's ; the act was none the less a wrong to him" (o). He could not charge the defendants with a breach of contract, but they remained answer- able for " an affirmative act injurious to the plaintiff's property" [p). whether good law. Alton T. The decision of the Court of Common Pleas in Alton ^.%Tfqu. ^- Midland Railmnj Co. (q) is difficult to reconcile with the foregoing authorities. A servant travelling by rail- way on his master's business (having paid his own fare) received hurt, as was alleged, by the negligence of the railway company's servants, and the master sued the company for loss of service consequent on this injury. It was held that the action would not lie, the supposed («) Marshall's ca. (1851) 11 C. B. 655, 21 L. J. 0. P. 34, supra, p. 487. (o) Martin v. G. I. P. S. Co. (1867) L. R. 3 Ex. 9, per Bram- well B. at p. 14, 37 L. J. Ex. 27. {p) GhanneUB. ibid.; KeUyC.B. and Pigott B. doubted. The later case of Becker v. G. E. B. Co. (1870) L. E. 5 Q. B. 241, 39 L. J. Q. B. 122, is distinguishable: all it decides is that if A. delivers B.'s goods to a railway company as A.'s own ordinary luggage, and the company receives them to be carried as such, B. cannot sue the company for the loss of the goods. Martin's case, however, was not cited. (q) 19 C. B. N. S. 213, 34 L. J. C. P. 292 (1865). This case was not cited either in Martin v. G. I. F. S. Co: or Foulkes v> Met. Dist. S. Co\ Alton's case. 493 cause of action arising, in the opinion of the Court, wholly out of the company's contract of carriage ; which contract heing made with the servant, no third person could found any right upon it. " The rights founded on contract helong to the person who has stipulated for them " (/•) ; and it is denied that there was any duty in- dependent of contract (s). But it is not explained in any of the judgments how this view is consistent with the authorities relied on for the plaintiff, and in particular with Marshall's case, a former decision of the same Court. The test question, whether the reception of the plaintiff's servant as a passenger would not have created a duty to carry him safely if there had not been any contract with him, is not directly, or, it is submitted, adequately dealt with. The case, though expressly treated by the Court as of general importance, has been but little cited or relied on during the thirty years that have now passed; and the correctness of the decision was disputed (extra- judicially, it is true) by Sir E. V. WUliams {t). A directly contrary decision has also been given in the State of Massachusetts (u). Alton's case, moreover, seems to be virtually overruled by Foulkes's case, which proceeds on the existence of a duty not only in form but in substance ■ independent of contract. The only way of maintaining M Willes J., 19 C. B. N. S. at not exclusively arise out of the p. 240. contract, but out of the common (s) Montague Smith J. at p. 245. law obligation of the defendants (t) " The Court decided this case as carriers ; " 1 Wms. Saund. 474. on the principle that one who is no Sir E. V. Williams was a member party to a contract cannot sue in of the Coiu:t which decided Mar- respect of the breach of a duty shaWs case, supra, p. 487. arisiug out of the contract. But {«) Ames v. Union B. Go. (187S) it may be doubted whether this 117 Mass. 541, expressly following was correct; for the duty, as ap- Marshall's ca. (1851) 11 C. B. 656, pears by the series of cases cited in 21 L. J. C. P. 34, supra, p. 487. the earlier paxt of this note, does 494 SPECIAL RELATIONS OF CONTEACT AND TORT. the authority of both decisions would he to say that in Alton's case the master coidd not recover because the servant had a contract with the defendant railway com- pany, but that he might have been entitled to recover if the servant had been travelling with a free pass, or with a ticket taken and paid for by a stranger, or issued by another company, or had suffered from a fault in the permanent way or the structure of a station. But such a distinction does not appear reasonable. It might perhaps have been argued that at all events such negligence must be shown as would make a carrier of passengers liable to a person being carried gratuitously; it might also be open to argument whether the person injured (apparently a commercial traveller) was really the servant of the plaintiff in such a sense that an action could be maintained for the loss of his service. Doubtless the action for wrong to a servant per quod servitium amisit is of an archaic character and not favoured in our modern law, and this may have unconsciously influenced the Court. Neither of these points, however, was discussed, nor indeed were they open to discussion upon the issues of law raised by the pleadings, on which alone the case was argued and decided. The questions what degree of negligence must be shown, whether a mere non-feasance would be enough, or the like, could have been properly raised only when the evidence came out [x) . The most ingenious reason for the judgment of the Court is that of Willes J., who said that to allow such an action would be to allow a stranger to exercise and deter- mine the election (of suing in contract or tort) which the law gives only to the person actually iajured. But it is {x) Compare Mr. Henry T. Law," Philadelphia, 1884, pp. 485 Terry's criticism in "Leading — 488. Principles of Anglo - American TENDENCY OF MODERN AUTHOEITIES. "^95 submitted tliat the latter is (or was) required to elect between the two causes of action as a matter of remedy, not of right, and because he is to be compensated once and once only for the same damage ; and that such election neither affects nor is affected by the position of a third person. Moreover the master does not sue as a person claiming through the servant, but in a distinct right. The cause of action and the measure of damages are different (y). On the whole the weight of principle and authority seems to be so strong against Alton's case that, notwithstanding the respect due to the Court before which it came, and which included one of the greatest masters of the common law at any time, the only legitimate conclusion is that it was wrongly decided. The case has now been commented on in the Court of Appeal with doubt only short of express disapproval (z). It appears, then, that there has been a certain tendency winter- to hold that facts which constitute a contract cannot have j^r^i^jj' any other legal effect. We thiok we have shown that ^''• such is not really the law, and we may add that the autho- rities commonly relied on for this proposition really prove something different and much more rational, namely, that if A. breaks his contract with B. (which may happen without any personal default in A. or A.'s servants), that is not of itself sufficient to make A. liable to C, a stranger to the contract, for consequential damage. This, and only this, is the substance of the perfectly correct decisions of (y) See p. 210 above. mitted that neither the declaration (z) Tayior v. M. S. ^ L. R. Co., nor the argument for the plaintiff '95, 1 Q. B. 134 (also in 14 E. Jan. treated the action as founded on 350, and 64 L. J. Q. B. 6). See contract, but only the defendant's per A. L. Smith L. J. '95, 1 Q. B. plea. at pp. 140, 141, but it is sub- 496 SPECIAL RELATIONS OF CONTRACT AND TOET. the Court of Exdiequer in Winterbottom v. Wright {a) and Longmeid v. MoUiday (b). In each case the defendant de- livered, under a contract of sale or hiring, a chattel which was in fact unsafe to use, but in the one case was not alleged, in the other was alleged but not proved, to have been so to his knowledge. In each case a stranger to the contract, using the chattel — a coach in the one case, a lamp in the other — in the ordinary way, came to harm through its dangerous condition, and was held not to have any cause of action against the purveyor. Not in contract, for there was no contract between these parties ; not in tort, for no bad faith or negligence on the defendant's part was proved. If bad faith (c) or misfeasance by want of ordinary care {d) had been shown, or, it may be, if the chattels in question had been of the class of eminently dangerous things which a man deals with at his peril (e), the result would have been different. With regard to the last-mentioned class of things the policy of the law has created a stringent and peculiar duty, to which the ordinary rule that the plaintiff must make out either wilful wrong-doing or negligence does not apply. There remain over some few miscellaneous cases currently cited on these topics, of which we have purposely said nothing because they are little or nothing more than warnings to pleaders (/). [a) 10 M. & W. 109, 11 L. J. (/) Such is Co/«s V. &Z N. S. (I) Case put by Denman C. J. in 722. GENERAL PART. 5^5 A. for compensation, for, although the damage is the natural consequence of the ox straying, A. has done no wrong, {q). 11. Subject to the provisions of this Act and to the law Survival of limitation every right of action under this Act is avail- ties and able against and for the executors, administrators and re|resen- representatives of the wrong-doer and the person wronged t^'i'^'^s- respectively (/■). 12. For the purposes of this Act, it is immaterial Liability whether the facts constituting a wrong do or do not unaflected amount to an offence (s) . ^y *^5 t ^ ' same tact amount- ing to an Illustrations. offence. 1 . A. , being on 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. [q) Tillett V. Ward, 10 Q. B. D. who would have a right to com- 17. But querz/ -whether desirable pensation under Act XIII. of 1855 to adopt this for India. An ex- would, under this clause, have perienced judicial officer (Punjab) none. But I think that the rights reo-ards it as "very queer law and created by Lord Campbell's Act, of doubtful equity." As to im- and Act XIII. of 1865, which pounding, Ben. Act IV. of 1866, copies it, are anomalous and ob- s. 71 (and other local Acts). jectionable, so far as they produce (»•) 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 but persona," rests on no intelligible exploded in England, and the H. C. principle, and even in England is of Calcutta, as long ago as 1866, more than haU falsified by parti- decided against its adoption in cular exceptions. I submit (after India ; see lUust. 2 ; Shama Churn Bentham) that there is no place Hose v. Bhola Nath Dutt, 6 W. E. for it in a rational and simplified (Civil Bef.) 9. Cf. Viranna v. code. I do not overlook the con- Nagdytjah, I. L. R. 3 Mad. 6, fol- sequence that in some oases persons lowing the H. C. of Calcutta. P N N 546 INDIAN CIVIL WEONGS BILL. Liability 13. Every one is liable for wrongs done by bis autbority of agent." Or done on bis bebalf and ratified by bim it) . Liability 14. (1) An employer or master is liable for tbe wrongs of seivant. of bis servant, wbetber autborized or ratified by bim or not, if and so far as tbey are committed in tbe course of tbe servant's employment, and for tbe employer's or master's purposes {ii). (2) Tbe master of a person engaged on any work is tbat person wbo bas legal autbority to control tbe per- formance of tbat work, and is not bimself subject to any similar autbority in respect of tbe same work. Exception 1 (x). — Wbere tbe person wronged and tbe wrong-doer are servants of tbe same master, and tbe wrong is done in tbe course of one and tbe same employment on wbicb tbey are at tbe same time engaged as sucb servants, tbe wrong-doer not being in tbat employment set over tbe person wronged, tbe master is not liable unless be knew tbe wrong-doer to be incompetent for tbat employment, or employed bim witbout using reasonable care to ascertain bis competence. {t) See Girish Chunder Das v. poses " a better -word, as of ten tbe Gillanders, Arhuthnot ^- Co. 2 B. L. act or default of the servant does E. 140, 0. C. ; Sani Shamshoondri not and cannot produce any present Deia v. Dubhu Mnndiil, 2 B. L. B. benefit to the master, but produces 227, A. C. Both these cases seem great and evident loss, e.g., a rail- to turn on a question of fact "way collision. It was once sup- ■whether under all the circumstances posed that deceit or wilful trespass the defendant had authorized or by a servant, not authorized or ratified the act complained of. ratified by the master, did not make {ii) Some persons whose opinion the master liable. But modern is entitled to weight think it would authorities, such as Barwick v. be better not to make any new law JSiiglish Joint Stock Bank, L. K. 2 on the question of employers' Ka- Ex. 259, have exploded this notion, bility. In the event of this opinion [x) This is a large alteration of being adopted, I think the whole English law, and intended so to be. clause ought to be omitted. It The Employers' Liability Act of seems impossible formally to adopt 1880 is an awkward and intricate English law as it stood before the compromise, and evidently will not Act of 1880. "For the master's serve as a model. The final pro- benefit " is a common phrase in vise is only existing law. the authorities ; but I think " pur- GENEEAL PART. Explanation {y). — For tte purposes of the foregoing exception the whole and every part of the ordinary service of a household is deemed to he one and the same employ- ment. Exception 2 (z). — A person who is compelled hy law to use the services of another person, in the choice of whom he has no discretion, is not liable for wrong committed hy 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.'s garden. A. has wronged C. (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 C. 3. A. sends out his servant B. with a carriage 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 C. 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 C. After finishing his business, and as he is driving home, B. picks up a friend D. ; D. persuades B. to drive him in another direction, and by careless driving B. runs over E. A. is liable to C, but he is not liable to E. {b). 5. N., a passenger by the X. Company's railway, books for Allahabad, and takes his seat in a train which is in fact going thither. A. is u, servant of the company whose duty is (among other things) to see that («/) This seems needful: other- {a) Gregory v. Tiper, 9 B. & C. wise, as suggested in some of the 591. English authorities, if the stable- (i) Storey v. AsUon, L. R. 4 Q. boy leave a pail about, and the B. 476, and eases there cited. I coachman breaks his shin over it in should prefer to say : "A. is not the dark, the coachman shall have liable to E., and he is liable to an action against the master, &o., C. only if it appears as a fact that which would be inconvenient. The B.'s deviation was not such that he real question is, what risks is it, on had ceased to be in the course of the whole, reasonable to expect the his employment as A.'s servant servant to take as being naturally when he ran over C. ; " of. What- incidental to his employment ? man v. Feanon, L. R. 3 C. P. 422 ; (z) Compulsory pilotage is the though this would involve some in- chief— I think the only — case to novation. I think the distinctions which this exception applies. in the English cases are too fine. N N 2 547 548 INDIAN CIVIL WRONGS BILL. passengers do not get into wrong trains or carriages. A.., erroneously supposing N. to have got into a train wMoh. 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.' 8 instructions were that he must not use force to remove passengers from a wrong carriage (c). [6. B. is A.'s servant ; part of his duty is to light the fire in a certain room in A.'s house. B. finds difficulty in lighting the fire from the chimney being foul, and makes a fire of straw under the chimney in order to clear it. The house takes fire, and damage is done thereby to the house and goods of a neighbour C. B. only, and not A., has wronged C, for it was not B.'s business as A.'s servant to cleanse the chimney] {d). 7. C, a customer of A.'s bank, cashes a draft, and by mistake leaves some of his money on the counter. He returns and takes it up hurriedly; B., one of the bank clerks, thinks he has stolen some of the bank's money, and pursues and arrests him. A. has not wronged C, inasmuch as it is no part of a bank clerk's duty to pursue or arrest thieves, although he might be justified in so doing if theft had really been com- mitted {«) . 8. N. is a platelayer in the service of X. Railway Company. He makes a journey on the company's service in a train on the company's line. By the negligence of a pointsman employed by the company, the train goes off the line, and N. is injured. The X. company is liable to N. (/). [9. P. is an engine -driver in the service of the X. Railway Company. A train which he is driving in the course of his service goes off the line by the negligence "of Q., a generally competent pointsman also in the company's service, and P. is injured. The X. Company is liable to P.] iff)- (c) Baijley v. Manchester, Shef- Turner v. S. P. ^- D. M. Co. in the field 4" Lincolnshire S. Co. L. R. 8 H. C. Allahabad, not reported C. P. 148. (Alexander, p. 38) ; cf. Tunnei/ v. {d) M'Xemiev.McZeod, lOBing. Midland E. Co. L. R. 1 C. P. 291. 385. Strictly the question here is Railway companies will not ap- one of fact. But the Court evi- prove of the change, but it would dently not only acquiesced in but leave them better off than they are approved the finding of the jury. on the Continent of Europe. A Punjab officer says the illustra- (g) Contra, Farwell v. Boston S; tion is too refined, ' ' unsuited to Worcester Railroad Corporation, 4 India, and objectionable on prin- Met. 49, Bigelow L. C. 688. On ciple in relation to that country." principle, I think that, if there is No harm could be done by omit- to be any exception at all in the ting it. master's favour, it should go as far (e) Cf. Allen v. L. ^ S. W. M. as this. It seems to me that the L. R. 6 Q. B. 65, 69. In the case engine-driver and the pointsman here supposed a private person are as much in one and the same would in India be entitled to arrest employment as the engine-driver the thief, if theft were really com- and the guard, and that the reason- mitted in his view : Cr. P. C. 59. ing of the Massachusetts case is, on (/) Intended to reverse a case of the facts of that case, correct. But GENERAL PART, 549 10. A steamship of the A . Company, being navigated up the harbour of Bombay by a compulsory pilot, rims down B.'s bagalo. If the A. Com- pany can show that the collision was due to the unskilfulness of the pilot, and not of their own master or mariners, A. Company has not wronged B. (A). 15. (1) Joint wrong-doers are jointly and severally Joint liable to the person wronged. (2) Persons who agree to commit a wrong which is in fact committed in pursuance of that agreement are joint wrong-doers even if the wrongful act is committed by or under the immediate authority of some or one only of those persons (i). (3) Where judgment has been recovered against some or one of joint wrong-doers without the other or others, no other suit can be brought by the same plaintiff or in his right for the same cause of action against the other or others (k). (4) Any one of joint wrong-doers is not entitled to 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 autho- rized (/). the Employers' Liability Act, 1880, (i) See Ganesh Singh v. Earn B. 1, sub-s. 6, appears to reverse Raja, 3 B. L. R. 441, P. C. the common law rule in this very {k) It may be worth considering point. I do not believe it possible whether the rule that judgment to fix the Umits of the exception against some or one of joint wrong- satisfactorily, and I would submit doers is a bar to any suit against whether it is worth keeping at all, the others ought to be preserved except as regards domestic servants. in British India. It is generally ih) Muhammad Tusiifv. F. ^- 0. not followed in the United States. Co., 6 Bombay H. C. 98, Alex- (Cooley on Torts, 138.) ander p 37. (^) ^(?«mso» v. /ams, 4 Bing. 66; ' ' £eUs V. Gibbins, 2 A. & E. 37. 550 INDIAN CIVIL WRONGS BILL. Chapter II. GrENERAL Exceptions. Protection of judicial officers orders. 16 {h). Nothing is a wrong wMoh is done by or by the warrant or order of a judge or other judicial officer or j'udiSal'^ 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 jurisdic- tion to do or order the act complained of, in good faith believed himself to have such jurisdiction : Provided also, as regards the exemption from liability of any person executing a judicial order, that the warrant or order is such as he would be bound to execute if within the juris- diction of the person issuing the same. Explanations. — The motives with which a judge or judi- cial officer acts within his jurisdiction are immaterial {i). Illustrations. 1. Z., not being a domestic servant, is charged before A., a magis- trate, under a local regulation witb. ' ' misbebaviour as a domestic servant, ' ' and sentenced by bim to imprisonment without proper investi- gation of the facts which show that Z. is not a domestic servant. A. has wronged Z., for though he may have believed himself to have juris- diction, he could not under the circumstances so beUeve in good faith within the meaning of this section (k). 2. B. is accused of having stolen certain goods. A., a deputy magis- trate, causes B.'s wife (against whom no evidence is offered) to be arrested and imprisoned for twenty-four hours, for the purpose, as it is suggested, of compelling B. to appear. A. has wronged B.'s wife, for (A) Act XVIII. of 1850, with some condensation. As to criminal prosecution, Cr. P. C. 197. This, of course, does not apply to such a case as that of taking the wrong man's goods, which is not an exe- cution of the order. In criminal law the exception is wider, P. C. 79. For the English law and au- thorities, see Stott V, Stansfield, L. R. 3 Ex. 220. The question of limitation of suits for judicial acts is left to stand over. Provision in that behalf should perhaps come under the title of Eemedies. (j) PralMd Mdharudra v. A. G. Watt, 10 B. H. 0. 346 ; Meghraj v. ZaJcir Sussain, I. L. E. 1 AH. 280. (k) Vithotd Malhdri v. CorJieM, 3 B, H. 0. Appendix. GENERAL PAET. 551 he oould not in good faith, believe himself to have jurisdiction to arrest her {!). 3. A., a customs officer, purporting to act under the provisions of Act yi. 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.V for the 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 fuith within the meaning of this section (m). 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 quahScations might, in the opinion of the Coui't, entertain after fair inquiry and consideration, A. has not wronged B . (h) . 5. A local Act gives power to magistrates (among other things) to remove obstructions or encroachments in highways. A., a magistrate, makes an order purporting to be under this Act for the removal of certain steps in front of Z.'s house. If this order is in excess of the power given by the Act, A. has wronged Z., inasmuch as the proceeding is not a judicial one (o). 17. Where an act is done in a due or reasonable Protection of exeou- manner — tive offi- cers and (a) by a public ofHcer in obedience to ^n order ffiven persons ^ ' -^ ^ _ o executmg by a person whom he is generally bound to obey, legal that order being such as he is bound to obey, or such as he in good faith believes himself bound to obey ; (l) Vinayah Disdhar v. Bdi Itchd, thamaijyangar, 6 M. H. C. 423, it 3 B. H. C. Appendix, 36. is assumed that the making of an [m) Collector of Sea Customs v. order of the same kind under the Funniar Chithambaram, I. L. R. 1 similar general provisions of the Mad. 89. Cr. P. 0. 308, is a judicial act with- («) Magimdda Mau-v. Nathamtmi, in the meaning of Act XVIII. of 6 M. H. C. 423. 1850. I cannot reconcile these (o) Chander Narain Singh v. Brijo authorities, and submit for eou- Bullub Gooyee (A. C), 14 B. L. R. sideration which view is to be pre- 254. But in Seshaiyangar v. E. ferred. The Bengal case is the Jtofiunatha Row, 5 M. H. C. 345, later (1874), and the Madras oases and the very similar case of R. were cited in it, Eayunidd Run v, Kathamuni Thn- 552 INDIAN CIVIL WRONGS BILL. (b) by a person acting in execution of a duty or exercise 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 ofScer 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 agaiust whom execution was adjudged, A. has not T\ ronged B. 2. A., a pohceman, 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 towards B. such force as is reasonably necessary to effect the arrest. But A. does wrong to B. if he striies him otherwise than in self-defence, or in any other manner uses excessive force towards him. Protection 18. Nothing is a wrong which is done regularly and in judicial good faith by any person in the exercise of a discretion ''''*^' of a judicial nature to which the party complaining ia lawfully subject by custom or agreement {p). 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 meet- ing is duly oaUed to consider these charges. A. is summoned to this meeting, but does not attend. The meeting resolves to remove A. from (p) The words "regularly and in good faith ' ' are meant to cover what the English authorities on deprivation of office, expulsion from a club, and the like, call observing the rules of natural justice : Inder- icick V. SiU'll, 2 Mac. & Gr. 216. GENERAL PART. 553 his office. No wrong is done to A., eyen if, in the opinion of the Court, the charges against him were not well founded. 2. The rules of a club provide that if in the opinion of the committee the conduct of a member is injurious to the character and interest of the club, the committee may recommend that member to resign, and that if the committee unanimously deem the offence of so grave a character as in the interests of the club to warrant the member's expulsion, they may suspend him from the use of the club. The committee must not suspend a member under this rule without giving him fair and sufficient notice of the charges against him, and an opportunity of meeting them (q). But 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 (r). 3. Instated for consideration.'] A. and B. are members of the same Hindu caste. A. is president of the annual caste feast, to which B. is entitled, according to the usage of the caste, to be invited. A. wilfuUy, and without reasonable belief in the existence of any cause for which B. ought to be excluded, and without taking any of the steps which, according to usage, ought to be taken before excluding a member of the caste from the feast, causes B. not to be invited, whereby B. suffers in character and reputation. A. has wronged B. (s). 19 (t). Nothing is a wrong which is done by or by order Protection of a person having lawful authority, and in exercise thereof, i^^^ ° to any one for the time being under that authority, authority. provided that the authority is exercised in good faith, without using excessive force, and in a regular, or in (g) Fisher v. Keane,U Ch. D. 353. and similar wrongs. (r) Zabouchere v. JF/mrncUfe, 13 (<) This is intended to cover the Ch. D. at p. 352 ; Daickins v. cases of masters of vessels, parents, Antrohiis, 17 Ch. Div. 615. guardians, and persons in loco pa- (s) Lhurmchund v. Nanabhaee rends. The provisions of 21 Geo. Goobalchund, 1 Borr. 11, sedqu. See 3, o. 70, ss. 2, 3, will, I presume, Bhugwan Meetha v. Kasheeram Go- be unaffected by this. Illustra- vurdhun, 2 Borr. 323. The better tions of the authority of a parent or opinion seems to be that suits for schoolmaster are purposely omitted, loss of caste are not to be allowed. Custom and feeling in these things This iUnstration should then be vary from time to time, and from omitted ; and the proper place for place to place. It may not be prac- the rule that a suit for loss of ticable to judge European, Hindu, caste as such does not lie would and Muhammadan parents or mas- seem to be the title of defamation ters by precisely the same standard. 554 INDIAN CIVIL WEONGS BILL. default of applicable rule or custom, an usual and reason- able manner. Illustrations. 1. A., the master of a sHp, belieTing' and having reasonable cause to believe that B., one of the crew, is about to head a mutiny against him, causes B. to be seized and put in confinement. A. has not wronged B., but, after having provided for the immediate discipline and safety of the ship, A. must not further punish B. without holding an inquiry and giving B. an opportunity of being heard in his own defence. 2. A person having the lawful custody of a lunatic does no wrong to the lanatio by using for his treatment such usual and reasonable restraint as is approved by the judgment and practice of competent persons [u). Protection 20. Nothing is a wrong wbioh is duly done by a person doneunder acting in execution of an authority conferred upon him by authority , conferred ^^'^ '• by law. Provided that where the authority is conferred for the benefit of the person exercising it, he must comply with all conditions prescribed by law for such exercise, and must avoid doing any imnecessary harm in such exercise. Illustrations. 1 . The X. Railway Company is authorized to make and work a railway passing near Z.'s house. Z. is put to inconvenience, and the structure of his house injured, by the noise and vibration necessarily produced by the trains. The company has not wronged Z . (») . 2. The X. Railway Company in execution of its authorized works makes a cutting which affects the support of A.'s house and puts it in danger of falling. The company has wronged A. [x). [3. The X. Railway Company is authorized to raise and maintain on all or any part of certain lands a railway with incidental works, workshops, and other buUdings. The company builds workshops within the autho- rized limits for the purpose of making plant and appliances for the use of the railway. A. is a householder, near the site of the workshops, and the smoke from the workshops is such as to create a nuisance to A. in the use and occupation of his house. The company has wronged A.] [ij). [u) Maude & PoUock, Merchant 636. Shipping, I. 127, 4th ed. [y) Majmohun BoseY. E. I. S. Co. (v) Cases in H. L. on compensa- 10 B. L. R. 241. [&) Pilumber Doss v. Dwarka M S. V. Burdett, 4 B. & Aid. 95; Tershad, 2 N. W. P. 435. Stephen, Dig. Cr. L., Art. 270 ; 568 INDIAN CIVIL WRONGS BILL. be held in India to publish the contents of documents written or read by him in the way of his business.] 5. A. is a Brahman attached to a, temple at Gandharvanagar. X. says to Z., in a public place, that all Brahmans are impostors and cor- rupters of the Vedas. This is no wrong to A. Z. answers, "Not all Brahmana, but you say well as to those of the temple of G-andharvana- gar." This may be a wrong to A. Note. — This clause is intended to contain the funda- mental definitions. Sub-clause (1) does away with the fiction of " implied malice " or " malice in law," a course which seems clearly authorized by Lord Blackburn's lan- guage in Capital and Counties Bank v. Henty, 7 App. Oa. at pp. 771, 772, 782, and especially 787 ; and see Stephen, Dig. Cr. Law, Art. 271, and note XVI. in Appendix. Sub-clause (2), combined with the interpretation in sub- clause (5), gives the substance of existing law without the non-natural use of the words " publish " and " publica- tion." The phrase of the P. C, s. 499, is " makes or publishes," but publication is not further defined. Sub- clause (3) states existing law. Sub-clause (4) abolishes (if now existing in British India) the distinction between slander and libel. As to sub-clause (5), illustrations might be multiplied indefinitely. But it is really a matter of common sense. The sub -clause might, perhaps, be safely omitted. Construc- tion of words com- plained of as defa- matory. 33. (1) In determining whether words are or are not defamatory, regard is to be had in the first place to their natural and ordinary meaning, and also, if necessary, to the special meaning, if any, which the words were fitted to convey (c). (2) In ascertaining any such special meaning regard is to be had to the context of which the words are part, the persons to whom and the occasion on which they were (c) See the law explained and discussed in Capital and Counties Bank v. Eenty, 7 App. Ca. 741. SPECIAL PART. 569 communicated, the local usage and understanding of terms, and all other relevant circumstances. (3) When words are capable of an innocent meaning and also of a defamatory meaning, it is a question of fact which meaning they conveyed {d). (4) Provided that the burden of proof is in every case on the party attributing to words a meaning that exceeds or qualifies their natural and ordinary meaning ; and such proof is admissible only if in the opinion of the Court the words are capable of the alleged meaning (e). 34. A person is not the less answerable for a defamatory Eesponsi- ^ . •' biHtyfor statement by reason only that he makes it by way of repe- statements tition or hearsay, or gives at the time or afterwards the o^hear- authority on which he makes the statement, or (subject to ^5"- section 38 of this Act) believes the statement to be true : Provided that the Court may take these or like circum- stances into account in awarding damages (/). Illustration. A. is the ctairman of the M. Railway Company, and a chairman and director of other companies. X. and Z. are speaking of a fall in the company's shares. Z. says, " Tou have heard what has caused the fall ; I mean the rumour about the M. chairman having failed?" This may be a defamation of A., though such a rumour did exist, and was believed by Z. to be well founded. {d) See the chapter of "Con- excepted (and subject to the rule struction and Certainty " in Blake of special damage in slander, which Odgers' Digest, and the illustra- it is proposed here to abrogate), a tions there collected. man defames his neighbour at his («) The rules as to burden of peril. It may seem a hard rule, proof have been produced by the but it is now well settled in Eng- need for defining what is the proper land, and the general exception of direction for a jury. It may be cases of trifling harm (clause 26 of a question whether it is desirable this draft) would be at least as to make them formally binding on effectual to prevent it from having judges deciding without juries. oppresive results as the English (/) Wathin V. Sail, L. R. 3 Q. rules limiting the right of action B. 396. This is only the developed for slander as distinguished from statement of the principle of the libel, common law that, certain occasions 570 INDIAN CIVIL WRONGS BILL. ^'^^ . 35. It is not defamation to make or publish in good criticism _ -"^ ° is not de- faith any fair comment on matters of public interest or matters otherwise fairly open to public comment. Illustrations . The conduct of a person in the exercise of any public office or in any public affairs in whicli he takes part is matter of public interest. The conduct of local authorities in local administration, and of the managers of public institutions in the affairs of those institutions, are matters of public interest (g). A published book or paper, a work of art publicly exhibited or offered for sale, a public building, or publicly exhibited architectural design, a new invention or discovery publicly described or advertised, a public per- formance or entertainment, the conduct of persona in public places, are open to public comment. [The term "privilege" has sometimes been applied to cases of this class, but wrongly: Merivale v. Carson, 20 Q. B. Div. 275.] Fair 3g_ Jt is not defamation to publish or cause to be pub- public ,. , . . . . reports lished m good faith a correct and impartial report of a famation. publio judicial Or legislative* proceeding. Any proceeding of which the publication is authorized by the Court or legislative body before or in which it takes place is, but a proceeding of which the publication has been forbidden by that Court or legislative body is not, a public proceeding for the purpose of this section. [* Alternative reading, — " of a public judicial proceed- ing or of any proceeding in either House of the Imperial Parliament or any Committee thereof, or of any public proceeding of the Council of the Governor General or any other Council established under the provisions of the Indian Councils Act, 1861 (h)."] Illustration. A. is present at proceedings before a magistrate in the course of which imputations are made oa B.'s conduct. A. sends a substantially correct report of the proceedings to a newspaper, and the newspaper publishes it. No wrong is done to B. if A. sends the report only for the purpose of giving information to the public on a matter of general interest. But if iff) See Furcellv. Sow/er, 2 C. P. (h) 24 & 25 Vict. o. 67. Div. 215. SPECIAL PART. 571 A. sends the report from motives of ill-will towards B., this may be a wrong to B. (i). 37. In the following cases tlie wrong of defamation is Exoep- not committed against a person concerning whom a state- grounds of ment is made, though the statement be defamatory, and P^^J.^ whatever be the intention, motive, or belief of the person making the statement : — (1) If the statement is true: provided (k) that a party Truth in relying on the truth of a statement must prove the substantial truth of that statement as a whole and of every material part of it. (2) If the statement is made in the course of a judicial State- proceeding before a competent Court, and has course of reference to the matter before the Court [or is ^"ggee^. made in the course of any debate or proceeding i"?s or legislative of the Council of the Governor General, or any debate. other council established under the provisions of the Indian Councils Act, 1861 (/)]. (i) Stevens v. Sampson (1879) 5 menta in a petition pi-eferred in a Ex. Div. 53. It was decided only judicial proceeding held to be pro- in 1868 {Wason v. Walter, L. K. 4 tected only if made in good faith) : Q. B. 73), that a fair report of a also Hinde v. Bandry, I. L. K. parliamentary debate cannot be a 2 Mad. 13, which does not decide libel. Reports, &o. published by the point, but declines to assume authority of either House are pro- that the English rule holds. The tected by statute 3 & 4 Vict. o. 9, vague phrase, "has reference," is which I presume applies to British the result of Munster v. Lamb, 11 India. Perhaps it is needless to Q. B. Div. 588, which decides that refer expressly to that Act here. an advocate's words are not action- The High Courts would, I suppose, able if they have anything to do apply IVason v. Walter to fair with the case ; they need not be reports of proceedings in the Go- relevant in any more definite sense, veruor General's Council, &c. The Words spoken by a judge in his case is not provided for in sect. 499 office faU within the more general of the Penal Code, and I cannot exception of judicial acts (clause 16 find any other Indian authority, above). See also as to the use of legislative or judicial, on the point. the word "relevant" the judg- (A-) I am not sure that the pro- ment of Lord Bramwell (then a viso is necessaiy under a rational member of the C. A.) in Seaman v. system of pleadmg. NethercUft, 2 C. P. D. at p. 59. As {I) Qu. as to the policy of ap- to speeches in Council, the reason plying this rule to India to the of the thing suggests that they f uU extent given to it in England. must be privileged, but I do not See Abdul Hakim v. Tej Chander find any authority. Mukarji, I. L. E. 3 All. 815 (state- occaaione. •572 INDIAN CIVIL WRONGS BILL. Explanation. — For the purposes of this section the pro- ceedings of a naval or military court-martial, or court of inquiry, or any other body lawfully authorized to take evidence with a view to a determination of a judicial nature, such court or body being constituted according to the law, regulations, or usage applicable to the subject- matter, and dealing with a matter which by such law, regulations, or usage is within its competence, and aU reports and statements made in the course of naval, military, or official duty in reference to such proceedings are deemed to be judicial proceedings {m). state- 38. (1) Where a statement is made — meuts on . . -in • • privileged (i) in discharge of a legal, moral or social duty existmg, or by the person making the statement believed in good faith to exist, of giving information in the matter of the statement to the person to whom it is made ; or (ii) to a public servant, or other person in authority, in a subject-matter reasonably believed to be within his competence, with a view to the prevention or punishment of an offence or redress of a public grievance; or (ui) with a view to the reasonably necessary protection of some interest of the person making the state- ment ; or (iv) with a view to the reasonably necessary protection of an interest or the proper performance of a duty common to the person making the statement and the person to whom it is made ; (m) It is not free from doubt ordinary ' ' privileged communica- ■whether reports made in the course tions," i.e., are protected only if of military (or other official P) duty, made bond fide. Thia clause is in- but not with reference to any pend- tended to leave the unsettled points ing judicial proceeding, are "ab- at large, eolutely privileged," or are only SPECIAL PAKT. 573 that statement is said to be made on a privileged occa- sion («). (2) It is not defamation to make a statement on a Immunity privileged occasion in good faith, and in a manner not ments in exceeding what is reasonably sufficient for the occasion. on°pri-*'*^ (3) A statement made on a privileged occasion is filegea . occasion. presumed to have been made in good faith (o). (4) What is reasonably sufficient for the occasion is a question of fact to be determined with regard to the whole circumstances (o). Illustrations. 1. Z. has been A.'s servant, and offers himself as a servant to M. M. asks A. his opinion of Z.'s character and competence. This is a privi- leged occasion, and no wrong is done to Z., though A.'s account of him given to M. be unfavourable, unless Z. can prove not only that A.'s account was not true in substance, but that A. spoke or wrote, not with the honest purpose of giving information to M. which it was right that M. should have, but from personal iU-wiU to Z. 2. Z. is A.'s servant and a minor. A. dismisses Z. on suspicion of theft, and writes to Z.'s father explaining the grounds of his suspicion. Afterwards A. sees Z. in conversation with P. and Q., other servants of A., and warns P. and Q. agaiast having anything to do with Z. A.'s letter to Z.'s parents is written, and his warning to P. and Q. is given, on a privileged occasion [p). 3. A., a merchant who has dealings with B., sends Z. to B.'s office with a message. After Z. has left B.'s office B. misses a puree from the room in which Z. has been. B. goes to A. and tells him that Z. must have taken the purse. This occasion is privileged (j). 4. A. and B. are part owners of a ship. A, hears unfavourable reports of the master's conduct as a seaman and communicates them to B. This occasion is privileged {r) . 6. A. and B. are partners. 0. is their managing clerk. X. writes a letter to the firm proposing a business transaction. 0. opens the letter («) There is some temptation to (o) These sub-clauses are perhaps get rid of the term "privileged unnecessary. occasion " altogether : but as it (p) James v. JoHy, Blake Odgers, wovild in any case persist in forensic 212; Somerville v. Hawkins, IOC. B. usage, and is certainly convenient 583, 20 L. J. C. P. 131. for separating the two distinct (j) Amann v. Saimn, 8 C. B. N. questions of the character of the S. 597, 29 L. J. C. P. 313. occasion, and whether it was legi- (r) Concessum, Coxhead v. Sich- timately used, it seems best to keep arda, 2 C. B. 569, 15 L. J. C. P. it in the draft. 278. 574 INDIAN CIVIL WRONGS BILL. and submits it to A., teUing A. that from his own knowledge of X. he does not think the firm ought to trust him. A. shows X.'s letter and repeats this conversation to B., and A. and B. cause a letter to be sent in the name of the firm to P. , a customer of theirs, stating the circum- stances and asking for information as to X.'s business reputation. P. sends an answer in which he makes, partly as from his own knowledge and partly on general information, various unfavourable statements about X. These statements concerning X. are aU made on a privileged occasion. 6. Sending defamatory matter by telegraph, or on a postcard, or the communication of such matter by any means to an excessive number of persons, or to persons having no interest, or the communication by negli- gence to one person of matter intended for and proper to be communi- cated to another person, or the use of intemperate language, may make a statement wrongful, even if the occasion is otherwise privileged («). 7. A. and Z. are inhabitants of the same town. Z. is the executor of a friend who has left a widow and children surviving. X. is Z.'s agent in the executorship. A. says to Z. in the presence of other persons, " You and your agent are spoken of as robbing the widow and the orphan." The occasion is privileged as regards both X. and Z., if A. intended in good faith to communicate to Z. matter which A. thought it important that Z., for the sake of his own character, should know. The question of what A.'s intention really was depends, among other things, on the circumstances of the conversation and the number and condition of the persons present [t). Chapter V. Wrongs against Good Faith. [It is proper to mention that these clauses and the notes to them were written before Derri/ v. JPee/c (p. 264 above) had come before either the Court of Appeal or the House of Lords.] Deceit. 39. A person wrongs another who deceives that other within the meaning of this Act (ii). (s) Williamson y. Freer, Jj. yi. 9 thePenal Code, s. 415, isverywide, C. P. 393 ; Seji. v. Sankara, I. L. K. yet it does not completely cover the 6 Mad. 381 (notice of putting out ground of deceit as a civil wrong, of caste sent on a postcard) . For in some cases an action for de- (i; Davien v. tinead (1870) L. E. 5 ceit will lie without any bad inten- Q. B. 608 (with some doubt as to tion, and even in spite of good the verdict). intention, on the part of the defen- (m) The definition of cheating in dant [Polhill v. TValter, 3 B. & Ad. SPECIAI^ PART. 575 40. (1) Where one person makes a statement to another Deceit which— defined. (a) is untrue ; and (b) which the person making it does not helieve to be true, whether knowing it to be untrue, or being ignorant whether it is true or not ; and (c) which the person making it intends or expects to be acted upon in a certain manner by the person to whom it is made, or with ordinary sense and pru- dence would expect to be so acted upon ; and (d) in reliance on which the person to whom it is made does act in that manner to his own harm ; there the person making the statement is said to deceive the person to whom it is made («). (2) For the purposes of this section, a statement may be made in any of the ways mentioned in s. 32 («/) of this Act, and may be made either to a certain person or to all or any of a number of persons to whom it is collectively addressed. Explanation. — (1) A statement intended by the person making it to be communicated to and acted upon by a person is deemed to have been made to that person. 114), the principle being ttat if a disclosure, may avoid a contract; man takes on liimself to certify in some classes of contracts a very that of which he has no knowledge, strict duty of disclosing material even in the honest belief that he is facts is imposed by law ; but I am acting for the best, he shall an- not aware that a mere omission to swer for it if the fact is otherwise. give information has ever been On the other hand, the Penal Code treated as an actionable wrong, does cover all ordinary cases of even in those cases where a con- fraud, and the once vexed question tract " uberrimae Jidei " has created as to the responsibility of a prin- a special duty of giving it. Of cipal in tort for the fraud of his course, the remedy ex contractu is agent does not seem easy to treat better, and this may account for as open in British India in the face such concealments and nou-disclo- of sect. 238 of the Contract Act, sures not being treated as torts. though that enactment does not However, Ibelievethattheseclauses directly settle it. as drafted go to the full extent of the (x) It has been suggested that authorities, there may be deceit by concealment (y) The clause defining defama- of facts without any statement at tion. all. Concealment, or even non- 576 INDIAN CIVIL WRONGS BILL. (2) Where a person acts in reliance on the statement of another, it is immaterial that he had the means of examining the truth of that statement. (3) A statement may be untrue, though no part of it is in terms untrue, if by reason of material facts being omitted the statement as a whole is fitted to deceive (2). Illustrations. 1. N. draws a bill on X. The bill is presented for acceptance at X.'s office when X. is not there. A., a friend of X., who is there but not concerned in X.'s business, accepts the bill as X.'s agent. He has not in fact any authority to accept, but believes that the bill is drawn in the regular course of business, and that X. wiU ratify the acceptance. The bill is dishonoured when due, and Z., the holder in due course, is unable to obtain payment. A. has deceived Z., though he honestly meant to act for the benefit of all parties to the bill ; for he has represented to all to whom it might be oflEered in the course of circulation that he had authority to accept in the name of X., knowing that he had not such authority, and Z. has incurred loss by acting on that representation {a). 2. A., B., and 0. are partners in a firm; D. and E. agree with them to form a limited company to take over the business of the firm, and to become directors jointly with A., B., and 0. A prospectus is prepared and issued with the authority of A., B., C, D., and E., stating, among other things, that the consideration to be paid by the company for the goodwill of the business is Rs. 10,00,000. Z. applies for and obtains shares in the company on the faith of this prospectus. In fact the firm is insolvent, and the Rs. 10,00,000 are intended to be applied in paying its debts. The company fails and is'wound up, and Z. incurs KabOity as a contributory. A., B., C, D., and E. have deceived Z. (i). 3. In the case stated in the last illustration P. applies for and obtains thares on the formation of the company. Afterwards P. offers his shares for sale, and Q., having read the prospectus and relying on the truth of its contents, buys P.'s shares. The authors of the prospectus have not deceived Q., for it was addressed only to persons who might become original shareholders, and not to subsequent purchasers of shares {e). i. A. offers to sell his business to Z. ; assures him that the annual profits, as shown by the books, exceed Rs. 5,000, and teUs Z. that he may examine the books. Z., on the faith of A.'s statement, agrees to the terms proposed by A. without examining the books. If he had (z) See per Lord Cairns in Feek Indian use. V. Gurnet/, L. R. 6 H. L. at p. 403. (*) Peek v. Gurney, L. R. 6 H. {a) Polhill V. Waller, 3 B. & Ad. L. 377. 114. Doubt is expressed whether (c) Ibid. this be a suitable illustration for SPECIAL PAET. 577 examined them he would have discovered, as the fact is, that the proBts are much less than Es. 5,000. This wiU not preclude Z. from suing A. for deceit {d). 5. A. deals with Z., a gunsmith, and requires a gun for the use of A.'s son, B. Z., in B.'s presence, and knowing that the gun is wanted for B.'s use, warrants to A. that the gun is of good workmanship and materials and safe to use. A. thereupon buys the gun, and gives it to B. The gun is in fact badly made, and Z. knows it, and by reason thereof, the first time B. fires the gun, it bursts and wounds B. Z. has deceived B. (e). 41, A person wrongs another who causes harm to that Slander of other by making, for the purpose of injuring that other, a statement which is untrue, and which he does not believe to be true — (a) concerning that other's title or interest in any pro- perty : (b) concerning any pretended exclusive right or interest of his own as against that other. 42. A person wrongs another who — Malicious (a) without reasonable and probable cause, and prose- (b) acting from some indirect and improper motive, and not in furtherance of justice, falsely accuses that other of an ofEence, of which offence that other is acquitted by the Court before which the accusation is made, or, having been convicted in the first instance, is ultimately acquitted on appeal by reason of the original conviction having proceeded on evidence known by the accuser to be false, or on the wilful suppres- sion by him of material information (/). (d) On this point, seeRedgraveY. 519, 4 M. & W. 338. Jwr^/, 20 Ch.D. 1. It is pointed out (/) Per Bowen L. J., ^J™») Dotiald T. Suckling, L. R. 1 Q. B. 585, is the modern leading case. SPECIAL PART. 581 the price. A. has wronged Z., and is liable to Z. for the value of the goods («)■ 2. A. is a tenant of land belonging to B. A. without authority, but intending to act for B.'s as well as A.'s benefit, converts part of this land into a tank. A. has wronged B., and B. need not prove that the value of the land is diminished (o) . 3. A. obtains goods by fraud and false pretences from Z. at Bombay, and sends them by railway to B. at Allahabad. The railway company's servants deliver the goods at Allahabad to B.'s order according to the usual course of business. If the railway company has not before this delivery received any notice of an adverse claim on the part of Z., the railway company has not wronged Z. 4. Z. is the owner of 100 maunds of wheat. A. obtains this wheat from him by fraud and false pretences, and offers it for sale to B., a miller, who accepts it in good faith. B. causes the wheat to be ground in his mill together with otherwhcat bought by B. from the true owners. The men employed in the mill do not know from whom the wheat was bought. Here B. may have wronged Z., but the men employed in the mill have not {p). 48. The mere assertion of a right to deal with property Mere or to prevent another from dealing with it is not a trespass, right can- . not be 49. The consent of an owner to entry upon or inter- trespass. f erence with his property is called a licence, and a person Licence • • • 11 n T defined. to whom such consent is given is called a licensee. A licence, and the revocation of a licence, may be either express or tacit. Illustration. A man who keeps an open shop or oflSce thereby gives to all persons ■who may wish to deal with him in the way of his business a licence to In) Sollins v. Towler, L. R., 7 H. bailee for a special purpose without L. 757. notice of the true owner's claim, as (o) Tarini Charan Base v. Sehna- well as his servants ; and as to rmjan IListri, 8 B. L. K. App. 69. carriers, cf. SheHdan v. 2{eio Quaij If the conversion were proved to be Co., 4 0. B. N. S. 618. To give full beneficial to the property, quaere. effect to Lord Blackburn's opinion [p) As to these exceptions, see the proviso would have to protect the opinion of Blackburn J. in all persons handling the goods of Sollins V. Fowler, L. E. 7 H. L. at others in the way of their business. pp. 766 — 8, which seems to favour Lord Blackburn himself points out making them wide enough to pro- that this would go beyond existing teot the mUler or spinner, if acting authority. Whether it should be in good faith and without pur- done is submitted as a question of porting to acquire any interest in policy, the corn or cotton beyond that of 582 INDIAN CIVIL WRONGS BILL. enter the sliop or ofEce during business hours. If he gives up the business and turns the shop or office into a private dwelling-house, this licence is revoked. Effect of 50. {q). A licence— ilPPTlPfi (1) does not bind tlie successors in title of the licensor ; (2) is not assignable by the licensee ; (3) is limited to the purposes for which and subject to the conditions, if any, on which it is given ; (4) is revocable at the will of the licensor, unless coupled with an interest. Explanation. — A licence is said to be coupled with an interest where it is given as part of the same transaction with the conveyance of a legal interest in some property by the licensor to the Kcensee, and that interest cannot be enjoyed without doing the act permitted by the licence. Illustration. A. sells to B. cattle which are pasturing on A.'s land, or trees growing on A.'s laud. This implies a licence to B. to enter on A.'s land to take the cattle away, or to cut the trees, as the case may be, and A. cannot revoke the licence while the contract of sale is in force. Time of 5l_ Notwithstanding the revocation of a licence, the grace after revo- licensee is entitled to the benefit of the licence for a licence. reasonable time thereafter so far as may be necessary to enable him to restore the former state of things (r) . (q) Chapter VI. of the Easements know that any great harm would Act (V. of 1882) deals with licences come of having both in force over a as regards immoveable property limited extent of territory, only. It is submitted that, inas- (>■) Great trouble has been caused much as a licence does not create an in the United States by the un- interest in property, but merely ex- timely revocation of parol licences cuses what would otherwise be a to erect dams, divert watercourses, trespass, the subject belongs to the and the like ; Cooley on Torts, 307 law of torts more properly than to — 312; and in some cases the law the law of easements. This being has been strained to confer rights so, and the local extent of the Ease- on the licensees under the doctrine ments Act being limited, I leave of estoppel or part performance, the matter to the consideration of I do not know whether similar the Government of India. The two difficulties are to be apprehended sets of clauses are intended to de- in British India, clare the same law, and I do not SPECIAL PART. 583 Illustrations. 1. B. is on A.'s land under a revocable licence. A. revokes the licence, A. must not remove B, from the land until B. has had a reasonable time to leave it. 2. B. has timber lying on A.'s -wharf under a revocable licence. A. revokes the licence. A. must aUow B. access to the Tvharf for a reason- able time for the purpose of removing his timber (s). 52. A person entitled to the possession of any moveable True property who has been wrongfully deprived thereof may right of [within a reasonable time] retake the same if he can peace- i^^'^^P*^^- ably do so, and so far as necessary for that purpose may peaceably enter on the wrongdoer's land (t). Xote. — The term "trespass" has been extended to cover every kind of •wrongful interference Tvith property. Our distinctions between trespass, conversion, &c. are obviously not applicable in British India. Simplifi- cation at least as bold as that of the present draft is a necessity. It may be a grave question whether the strict rule that a man meddles ■with another's property absolutely at his peril be altogether fitted for Indian purposes, especially ia its application to immoveable property. I suggest for consideration the insertion of the words " to the damage or annoyance of the owner," or words to the like efBect, as part of the defi- nition. So far as I am aware, the change -would be only equivalent to what is the settled law of aU civilized countries not under the common law, including Scotland. It is so much the case that the English law of trespass is unknown iu Scotland that it has been found necessary to pro- ■vide by statute against camping out in private grounds, and other thiugs ejusdem generis: 28 & 29 Vict. o. 56, which makes the acts there described police offences. Not that other systems declare a, right of "innocent passage" over a private owner's land, but they do not provide any means, other than " self-help " at the time, of treating such passage as a -wrong ■where there is no damage and no annoyance. What circumstances are sufficient evidence of injurious intent, e. g. whether climbing over a fence ■would have this effect, must be a matter of detail to be regulated accord- ing to the habits of the country. (s) See Cornish v. Stubhs (1870) L. " fresh pursuit ; " the Court do not E. 5 C. P. 334, 339 ; and Mellor v. say anything of this being a neces- Wcilkins (1874) L. R. 9 Q. B. 400. sary condition. But I suppose re- (t) Patrick v. Ooleriek, 3 M. & W. capture should be, if not strictly on 483, explaining Blackstone's state- fresh pursuit in every case, yet ment, Comm. iii. 4, -which denies -within a reasonable time. English the right of entry on a third per- authorities are scanty on this point. sob's land for capture, except where There seem to be many modem the taking was felonious. The plea American cases, in Tatric/c v. Colerick has the phrase 584 INDIAN CIVIL WEONGS BILL. Chapter VII. Special damage from public nuisance. Nuisance. 53, Where special damage is caused to any person by a public nuisance within the meaning of the Indian Penal Code, section 268, the person guilty of the nuisance wrongs and is liable to the person suffering the damage. Eorplannfion. — Special damage for the purpose of this section means some injury, obstruction, danger, or annoy- ance to a person, or to his property or business, consequent upon his exercise of a public right being interfered with, and distinct from the fact that it is interfered with. Illustrations. 1. Z. unlawfully digs a trench across a higli road, whereby A. and others are prevented from freely passing and repassing thereon. This is no private wrong to A. But if A., going along the road in the dark, and not knowing of the obstruction, falls into the trench and is lamed, this is a special damage for which Z. is liable to A. («). 2. Z. unlawfully obstructs a navigable river. By this obstruction A. is prevented from taking a certain cargo of goods to market by water, and has to take them overland at increased cost. The expense thus incurred by A. is special damage for which Z. is liable to him (»). 3. Z. unlawfully obstructs a street in a town by conducting building operations in an unreasonable manner. A. is a shop-keeper in the same street, and by reason of the obstraotion traffic is diverted from his shop, and he loses custom and profits. This is special damage for which Z. is liable to A. (x). {u) Y. B. 27 H. VIII. 27, pi. 10. (») Sose V. Miles, 4 M. & S. 101 [16 E. R. 405]. {x) Wilkes V. Hungerford Marhet Co., 2 Bing. N. C. 281 ; this has been thought to be overruled by Hiclcet V. Metropolitan B. Co. L. R. 2 H. L. 178 (see at pp. 188, 199) ; per Willes, J., Beckett v. Midland B. Co., L. R. 3 C. P. 100. But this again is difficult to reconcile with the principle of Lyon v. Fishmongers'* Co., 1 App. Ca. 662; see Fitz v. Bobson, 14 Ch. D. 542. Bickcfs case is perhaps best treated as an anomalous decision on the construc- tion of a, statute with regard to particular facts ; the Court below seem to have thought the obstruc- tion was triiling. Wilkes's case has been followed by the Supreme Court of Massachusetts ; Stetsoji v. Faxon, 19 Pick. 47 ; cp. Benjamin v. Starr, L. R. 9 C. P. 400. SPECIAL PART. 585 4. Z. persistently obstructs a public footway which A. is in the habit of using. A. several times removes the obstruction for the purpose of passing along the way, and is put to trouble and expense in so doing. A. has no right of action against Z., for A. has not suffered any damage or inconvenience except in common with all persons using the ■n^ay()/). 5. A., B., and others, being Mussulmans, are accustomed to carry taints in procession along a certain public road for immersion in the sea. Z. unlawfully obstructs the road so that the iabuts cannot be carried along it in the accustomed manner. A. and B. have no right of action against Z. (z). 54. Every one wlio is guilty of a private nuisance as Liability defined by this Act wrongs and is liable to any person *°'^. P'^^"^''*^ •' ° J r nuisance. tbereby harmed. 55. Private nuisance is the using or authorizing the use Private of one's property, or of anything under one's control, so as de&ie'd.^ to injuriously affect an owner or occupier of property — (a) by diminishing the value of that property : (b) by continuously interfering with his power of con- trol or enjoyment of that property : (o) by causing material disturbance or annoyance to him in his use or occupation of that property («) . What amounts to material disturbance or annoyance is a question of fact to be decided with regard to the character of the neighbourhood, the ordinary habits of life and rea- («/) tVinterhottmn v. Lord Derby, (ci) It will not escape observation L. K. 2 Ex. 316. that to some extent the definition (z) Salku Valad Kadir Sausare v. of nuisance overlaps that of tres- Jbrdhim^ffa Valad Mirzd Jgi'i,l.Ij. pass {e.ff., the overhanging eai'es E. 2 Bom. 457, where English au- in lUust. 2 teem to con.stitute a con- thorities are well colleLted. S. P. tinuing trespass [though not the Gehandji bin Kes Patil v. Ganpati branches: LenimoH v. Webb, '94, Uh Laksh'wiaii, ibid, at p. 469; 3 Ch. 1]). This is so in England Karim Buksh v. Bvdha, 1 All. 249. and all common law jurisdictions, Jina Eanchhod v. Jodha GhtUa, 1 and it does not produce any Bom. H. C. 1, appears to be im- difficulty or inconvenience that I perfectly reported. loiow of. 586 INDIAN CIVIL WRONGS BILL. Bonable expectations of persons there dwelling, and other relevant circumstances (b). Illustrations. 1. Z. kas chemical ■works near A.'s laud, the fumes from which kill or stunt vegetation on A.'s land and reduce its selling value. "Whether the land is or is not rendered less wholesome for human habitation, Z. has wronged A. (e). 2. If Z. has a house whose eaves overhang A.'s land, or if the branches of a tree growing on Z.' s land project over A.'s land, this is a nuisance to A., inasmuch as it interferes with his powers of control and enjoy- ment on his own property, and also tends to discharge rain-water on A.'s land {d) . 3. Z. has a Ume-kiln so near A.'s house that, when the kiln burns, the smoke enters A.'s house and prevents A. and his household from dwelling there with ordinary comfort. This is a nuisance to A. {e) , 4. Z., a neighbour of A.'s, causes bells to be rung on his land so loudly and frequently that A. cannot dweE in his house in ordinary comfort. This is a nuisance to A. {/) . 5. A., living in a street in Calcutta, complains of noises proceeding from the house of his neighbour Z. as being a nuisance to him. In de- ciding whether a nuisance exists or not, regard is to be had to the general habits of life of persons dwelling in cities. Pre-exist- ence of nuisance immate- rial. 56. A person who enters on the occupation of land or of a house with knowledge that a state of facts which causes or is likely to cause a nuisance to occupiers of that land or house exists or is likely to exist near it does not thereby lose his right to complain of any nuisance caused by that state of facts {g) . (J) See Walter v. Selfe, i De G. &Sm. 315 ; HalvinY. North Brance- peth Coal Co., L. E. 9 Oh. 705. [c] St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642. (d) F. N. B. 184d; Penruddoclc' s case, 5 Co. Rep. 100 b ; Fay v. Frentice, 1 C. B. 829; JEarl of Lons- dale V. Kelson, 2 B. & C. at p. 311 ; cp. Rarrop v. Hirst, L. R. 4 Ex. 43, an example which must be adapted for Indian use, if at all, only on the spot, and with the light of local knowledge. {<■) Aldred's case, 9 Co. Rep. 69 a; Walter v. Selfe, note (4) ; and other modern brick-burning cases, e.g. Bamford v. Turnley, 3 B. & S. 66. (/) I do not know whether bell- ringing is common in India . Local knowledge may suggest something more probable and apt. Soltau v. De Held, 2 Sim. N. S. 133. This seems to cover a fortiori the cases of noise and vibration of machinery, letting off fireworks, &o. (g) In other words, the old doc- trine that a man who ' ' comes to a SPECIAL PAKT. 587 JExplanation. — This section does not affect the acquisition or loss of any right under the Indian Limitation Act, 1877, or the Indian Easements Act, 1882 Qi). Illustrations. 1. Z. has for some years carried on a noisy business on land adjoining a house built and occupied by A. on his own land. The noise is such as to be a nuisance to persons dweUing in the house. B., knowing these facts, buys A.'s house. Z. wrongs B. if, after B. has entered on the occupation of the house, he continues his business so as to prevent B. or his household from dwelling in the house with ordinary comfort. It is immaterial whether A., during his occupation, did or did not complain of the nuisance. 2. The facts being otherwise as in the last Olustration, Z.'s business has been carried on for such a time that he may at the date of B.'s pur- chase have acquired a prescriptive right as against A. and persons claim- ing through him. Here the previous conduct of A. and his predecessors in title is material as between Z. and B. 3. Z. has for more than twenty years carried on a noisy business on land adjoining land of A.'s, on which there is not any dwelling-house. A. builds and enters on the occupation of a dwelling-house on his own land near Z.'s workshop. Z. wrongs A. if he continues his business so as to prevent A. from dweUing in the house with ordinary comfort : for the doing of acts which were not a nuisance to the occupier of A.'s land when done could not in any length of time entitle Z. to continue similar acts after they became a nuisance [i). 57. The same facts or conduct may constitute a nuisance Same facts to several persons, and the wrongdoer is severally liable to distinct T nuisance every such person. to several ■r„ , , ■ persons. Illustration. " Z. has a manufactory. The smoke from the ch im neys flows into A.'s house and prevents him from dwelling there, the noise and vibration of machinery make B.'s and C.'s shops unfit for carrying on their business, and the fumes spoil D.'s growing crops. Z. has wronged A., B., C, and D. nuisance" cannotcomplain(Blackst. than under one of these Acts f If ii. 403) is not now law ; St. Eekn's so, the saving words should be Smelting Go. v. Tippincf, and other made to cover them, recent authorities. (») Sturges v. Eridgman, 11 Ch. (A) Q«. Can prescriptive rights be 0.852. acquired in British India othervnse 588 INDIAN CIVIL WEONGS BILL. Co-exist- enoe of other nuisances no de- fence. When owner out of posses- sion can sue for nuisance. 58. Where several persons are guilty of similar nui- sances, every one of them is severally liable to any person thereby harmed, notwithstanding that any such person may suffer harm of the same kind and of equal or greater amount from the other 'co-existing nuisances. lUustintion. A., B. , and C. have dye-works on the banks of the same river, and pour noxious refuse into it to the damage of X., a riparian occupier. A. has wronged X., even if the water flowing past X.'s land would not be made fit for use by A. alone ceasing to foul the stream [I). 59. An owner of immoveable property, not being in possession of it, can sue for a nuisance to that property only if the nuisance — ■ (a) permanently affects the value of the property ; or (b) tends to establish an adverse claim of right. Illustrations. 1. A. rents a house in a public street from B. Z. keeps his horses and carts standing in the .street for long and unreasonable times, in such a manner as to be an obstiuction of the street, and a nuisance to the occu- piers of the house. Z. has wronged A. only, and not B. (m). 2. A. rents a field from B., together with a watercourse passing through the field. Z., an occupier higher up the stream, fouls the water so as to be a nuisance to A. Z. has wronged both A. and B., as his acts would, if not resisted, tend to establish a claim to foul the stream as against B. 3. Z. has smelting works near A.'s land. The fumes from the works kill or spoil the trees growing on A.'s land, make it generally less fit for occupation, and diminish its selling value. Whether A. is or is not occu- pying the land, Z. has wronged A. What per- 60. The following persons are liable for the creation or sons are , . j? • j_i i. liable for a contmuance 01 a nuisance, as the case may be : — (a) every one who actually creates or continues, or authoiizes the creation or continuance of, a nuisance : nuisance. (I) Wood V. Wand, 3 Ex. 748 ; Grosslcy v. Lightoiokr, L. E,. 2 Ch. 478. (m) Motl V. Slioolhred, L. E. 20 Eq. 22. SPECIAL PART. 589 (b) every one who knowingly suffers a nuisance to be created or continued on land in his possession («) : (o) every one who lets or sells land with ■ an existing nuisance on it (o) ; but a lessor is not liable under this section by reason only of the omission of repairs which, as between himself and the lessee, the lessee is bound to do {p). Hxplaiuttion. — Where a nuisance is caused by a tenant's use of property, the lessor is not liable for it by reason only that the property is capable of being so used. Illustration. A. lets to Z. a house, with a, oliimiiey 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 which Z. has used it [q) . 61. A Civil Court may make an order for removing a Conour- pubHc nuisance at the suit of any person who suffers and cri- special damage by that nuisance, notwithstanding that an ^™ai;j,- order for the like purpose might be made by a magis- tio° ™ trate (r). special Note. — The subject of remedies for nuisance appears to be already j.f™ ^ sufficiently dealt with by the Specific Relief Act (I. of 1877), chaps. 9 and pubho 10, and the Civil Procedure Code, chap. 35, and Form 101 in Sched. 4. nuisance. 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. («) White Y. Jameson, L. R. 18 actually authorizes its continuance ; Eq. 303. Fretty v. Bwkinore, L. R. 8 C. P. lo) Mosewell v. Prior, 12 Mod. 401 ; Gwinnell v. Jlamer, L. R. 10 635 ; Todd v. Flight, 9 C. B. N. S. C. P. 658. 377 ; Nelson v. Liverpool Brewery {q) Rich v. Basterfield, 4 C. B. Co., 2 C. P. D. 311, and cases there 783. cited. See, too, Gandy v. Jubber [r) As this point has been raised (undelivered judgment of Ex. Ch.), and decided [Raj Koomar Singh v. 9 B. & S. 15. Sahebzada Roy, I. L. R. 3 Cal. 20), ( p) It seems the better opinion it may be worth while to deal with that the lessor's knowing of the it in the BiU. I do not find that it nuisance at the time of letting does is noticed in the last revision of the not make any difiference, unless he Civil Procedure Code. 590 INDIAN CIVIL WRONGS BILL. Chapter VIII. Negligence. Negli- 62. (1) Negligence is the omission or failure to use due genoe and i • r. i c n diligenoe. care and caution lor the salety of person or property within the meaning of this Act, and a person so omitting or failing, whether in respect of his own person or property or that of others, is said to be negligent. (2) Diligence in this part of this Act has the same meaning as due care and caution, and a person using due care and caution is said to be diligent. Evidence 63. (1) Where harm is complained of as caused by the genoe! negligence of any person, it is a question of fact whether that person has 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 determiaing 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 (s). Illustrations. 1 . A. occupies a warehouse in -which coal is kept. The coal takes fire, 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 endea- vours made to subdue the fire when it was discovered [t], («) It is not easy to formulate, as authentic statement of it, which is a proposition of law, what amounts here followed. The cases to which or does not amount to ' ' evidence it seems not to apply (such as Byrne of negligence." Still, as there is v. Boadle, 2 H. & C. 722, and in a question of law, some criterion Bigelow) are really cases of special must be assumed to exist, and the liability where the burden of proof case of Hammack v. White (11 0. B. is on the defendant. N. S. 588, also in Bigelow, L. Con {t) M'Culli/ v. CUrh, ap. Eige- Torts) contains something like an low, L. C. 559. SPECIAL PART. 591 2. The X. Railway Company's line crosses a higli road on the level. WanUss v. 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 -"-g- 4 ' knocked down and injured by a train under the management of the com- jj • cp. per pany's servants. It is a question of fact whether, having regard to the Mellor J., precautions for the safety of persons crossing the railway, which may ^^W ^' have been prescribed by rules \inder the Indian Railway Act, 1879, to „ L E. ' the local circumstances, to the usual course of traffic, and to the state of g Q. B. at things at the time of the accident, the injury to A. was or was not caused p. 261. by negligence on the company's part. 3. A grass bank adjoins the X. Company's railway, and is part of the company's property. Grass cut by the company's servants on this bank is there deposited during a dry season, and, after this grass has been there for some time, a train passes on the line, and the grass is imme- diately thereafter seen to be on fire. The fire spreads across a field and burns A. 's house. A. sues the company for compensation. It is a ques- tion of fact whether the company has been negligent [x). i. 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 [y). 5. A., while crossing 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 (z) . 6. B. goes out riding in town with a horse he has just bought. While 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 law- fully on the foot pavement. Unless B. managed the horse unskilfully, or knew it to be unmanageable, B. has not wronged A. (a). 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 (x) Smith V. L. ^ S. W. H. Co., this kind of case is the origin of L. li. 5 C. P. 98, 6 C. P. 14, a case the statement sometimes met with in which both Courts (C. P. and (which as a general proposition is Ex. Ch.) held with some difficulty evidently wrong in principle) that that there was evidence of negli- it lies on the plaintiff in the first gence ; cf . the later Indian case instance not only to prove negli- oiBalford\. E. I. M. Co., 14 B. L. gence on the defendant's part, but R. 1, 0. C, where the decision to disprove contributory negligence seems to be one of fact on conflict- on his own. [See now Waktlin v. ing evidence. i- # S. W. R. Co., 12 App. Ca. 41, (y) Scott V. London Bock Co., 3 H. 47.] & C. 696, 34 L. J. Ex. 220. (a) Sammack v. White, 11 C. B. (z) Cotton V. Wood, 8 C. B. N. S. N. S. 688, and in Bigelow. 668, 29 L. J. C. P. 333. Probably 592 INDIAN CIVIL WRONGS BILL, required of Mm than if an able-bodied adult were in the same situation with regard to him (i) . Contri- g4_ ^g^_ ^1) jt^ person is not liable for harm of which the negli- principal cause is the negligence of the person injured [or ° ' of a third person], although the harm would not have happened hut for the negligence of the first-mentioned person, or of some person for whose negligence 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 negligence is deemed to be the principal cause of harm which could immediately before its happening [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) Wliere by this Act any person is declared to be liable as for negligence, the rules of law concerning con- tributory negligence are applicable. Illustrations. 1. B. is driving on the wrong side of the road. A. is driving on the same side in the opposite direction, and with ordinary care he might keep clear of B. ; nevertheless A. runs into B.'s carriage. A. has wronged B. 2. B. is the owner of a saUing 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 (cf). (J) Illust. 7 is the concrete state- a third person," which were in- ment of sub-clause 3. I know no serted with an expression of doubt, case exactly in point, but I think would now have to be omitted, this must be the law. and the law as now laid down (c) This clause was drafted before should be more explicitly declared, the decisions of the C. A. and the (d) Tiifv. JVarmaii, 2 0. B. N. S. House of Lords in The Bernina, 740, iu Ex. Ch. 5 0. B. N. S. 573, 12 P. D. 58; ifilh V. Armstrong, 2TL. J. C. P. 322. 13 App. Ca. 1. The words "or of SPECIAL PART. 3. B. leaves a biillock tethered on the highway. A., driving at an incautiously fast pace, runs over and kills the buUock. 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- watched (e) . 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 puU 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 care, and A. could not by any ordinary care have prevented the consequences of B.'s negligence (/). [5. The S. Railway Company is entitled to run trains over the line of the Z. Company. A train of company X. running on the Z. Company's line is thrown off the rails by an obstruction placed there by the negli- gence of the Z. Company's serrants. 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 obstruction, the X. Company has, but the Z. Company has not, wronged M. (g).~\ 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. C, 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. (A). 7. A. is a child of tender years, in the custody of B., who allows A. to go alone across the road. C, driving along the road, runs over A. "Whether B. was negligent in letting A. go alone is not material to the question whether C. is liable to A., though it may be material whether C. perceived, or with ordinary care would have perceived, that A. was not capable of using the care and caution which a grown man may rea- sonably be expected to use (i) . (e) Davies v. Mann, 10 M. & W. sume that the custodian will use 546. The animal in that case was ordinary care for both the child's a donkey. safety and his own. (/) Butter field v. Forrester, 13 (i) There are many American East 60 [LO R. R. 433.] decisions on points of this kind, ((/) Armstrong v. L. | Y. R. Co., some one way and some the other; L. R. 10 Ex. 47, where the dcL'ision 0. W. Holmes, the Common Law, seems to be put on the ground of 128, Bigelovv L. G. 729. Putting proximate cause. [But see now aside the [now overruled] doctrine J[i.Us\. Arm.stronq, 13 App. Ca. 1. of "imputed negligence" as ir- The true conclusion in the case put rational, it would seem that the seems to be that M. has a right of real question is whether the defen- action against both companies.] daut should have known that he (A) Waile v. ^V. B. R. Co.. Ex. had to do with a helpless or com- Ch. E. B. & E. 719, 28 L. J. Q. B. paratively helpless person, to whom 2.'i8 (1859). Here the proximate therefore more than ordinary care cause of the harm is the negligence was due (clause 62, sub-clause 3, of the child's custodian, not of the above), other party, who is entitled to as- p. « Q 593 594 INDIAN CIVIL WRONGS BILL. terial. Collateral gg, J^ person who suffers harm by the negligence of negligence . . . . , imma- another is not guilty of contributory negligence 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 laay be material as tendiag to show that A. could not be reasonably expected to know that he was likely, by firing then and there, to harm any person, but it is not material otherwise. Action 66_ ^ person who suffers harm by the negligence of stress of another is not guilty of contributory negligence by reason caused by o^^Y that, being by the other's negligence exposed to im- ^'^"k^/^'^ minent danger, he does not act in the manner best fitted gence. to avoid that danger {k) . Eight to rely on others' dihgenoe, and take lesser risk to avoid greater (Z). 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 neg- ligence of another, and which at the . time may reasonably appear to be greater than the risk voluntarily incurred. Illustrations. 1. A. and B. are the drivers of carriages approaching one another. Each is entitled to assume that the other will drive competently and observe the rule of the road, but if and when it becomes manifest to A. that B. is driving on his wrong side, or otherwise negligently, A. must IJc) The Syicell Castk, 4 P. I)iv. 219 ; other authorities collected in Marsden on Collisions at Sea, pp. 6, 7. The rule is of importance in maritime law, and may be of im- portance in other oases ; cf . TTan- less V. N. E. R. Co., L. R. 7 H. L. 12; cf. 3 App. Ca. 1193. (?) Some such rule as this is in- dicated by English decisions and dicta, though 1 do not think it is anywhere laid down in a complete form ; Clayards v. Bethich, 12 Q. B. 439; Geey. Metrop. E. Co., L. R. 8 Q. B. 161 ; Sobson v. N. E. R. Co., L. R. 10 Q. B. at p. 274 ; Lax V. Mayor of Barhnyton, 5 Ex. J). 28; cf. Horace Smith, 156, 157. SPECIAL PART. 595 take such precautions as are reasonably fitted, having regard to B.'s 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 nullah. A. jumps out of the carriage to avoid being thrown down the nullah, and in so doing is injured. B. is liable to A. if, under all the circumstances, A. acted reasonably in con- templation of an apparently greater risk and in order to avoid the same (m) . 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 («). 68 (o). A person who does any of the following things : — Custody of (a) collects, keeps, or uses any dangerous thing on land thin^T.°^ occupied or used by him : (b) keeps a dangerous animal : (c) keeps or deals with loaded firearms, explosives, poison, or any other dangerous instrument or goods, or noxious or deadly thing : (m) In the summer of 1883 aeve- cher, L. E. 3 H. L. 330, that a ral passengers, including two Eng- man keeps dangerous things at his lish judges, were in a precisely peril (except as regards vis major, analogous situation in a runaway Nichols v. Marsland, 2 Ex. D. 1, car on the Northern Pacific Kail- &c.), seems needlessly harsh. The way. Ultimately those who did extent of the exceptions made in not jump out came to less harm later decisions shows that it is ac- than those who did. But surely it cepted with reluctance. It has not could not be maintained that it was been generally followed in the contributory negligence to jump United States, and in British India out rmder the circumstances. In one important application of it has some cases it may be prudent even been disallowed as unsuited to the to run a very great risk, as to jump facts and conditions of Indian land from the roof or top windows of a tenure ; Madras M. Co. v. Zemindar house on fire. of Carvaienagaram, L. E. 1 Ind. (k) Illustration 3 is Olayards v. App. 364. Nor is there anything Dethick, 12 Q. B. 439. Clayards v. answering to it in Roman law. It Bethick is disapproved by Lord therefore seems to require modifi- Bramwell ; see appendix to Horace cation in some such way as here Smith on Negligence, 2nd ed. Mr. proposed. This will of course not Horace Smith thinks Clayards v. affect liability for nuisance. In a Dethick is right notwithstanding, case short of that, the requirement and I agree with him. of exact diUgenoe is, one would (o) The rule in Rylands v. Flet- think, enough. qq2 596 INDIAN CIVIL WRONGS BILL. is bound to take and cause to he taken all reasonably prac- ticable care and caution to prevent harm being thereby caused to others, and is liable as for negligence to make compensation for any harm thereby caused, unless he proves that all reasonably practicable care and caution were in fact used. Explanations. — 1. Dangerous things for the purposes of this section are fire (not being used in the ordinary way of domestic purposes), earth or water artificially collected in large quantities, explosive and inflammable matters, and any other thing likely for default of safe keeping to cause harm to neighbouring persons or property. 2. A dangerous animal for the purposes of this section is — (a) any animal of a kind accustomed to do mischief : (b) any animal of whatever kind which the person keeping it knows to be fierce, mischievous, or vicious. 3. A person who deals with a dangerous thing and is in good faith ignorant of its dangerous character is not subject to the liability declared by this section {p). Illustrations. O. W. 1. A. is the owner of an embankment constructed by authority of the ■^'J' "f 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 Moo. P. C. heen diligent in constructing and maintaining the embankment in sunh a N. S. 101, manner as to be capable of resisting all such ^doleuoe of weather as in that and oases part of the country may be expected to occur, or if the storm was so cited extraordinary that no practicable precaution could have guarded against its eflfeots, then A. has not wronged B. If the storm was such as might have been reasonably provided against, and if A. has not been so diligent as aforesaid (which may be inferred as a fact from the failure of the embankment in the absence of proof that the best known precautions were used), then A. has wronged B. 2. Sparks escape from a, railway engiae used by the X. Eailway [p) As to poison, fire, explosives, and dangerous animals, cf. the Penal Code, ss. 284, 285, 286, 289. SPECIAL PART. 597 Company on their line, and set fire to A.'s com in an adjoining field. The X. Company must make compensation to A., unless they prove that the best known practicable precautions were used to prevent the escape of sparks from the engines {q). 3. A. bums weeds on his own land. Sparks from the fire are carried into B.'s growing crop and set fire to it. A. must make compensation to B., unless he proves that the fire was carried by a sudden and extraordi- nary wind, or in some other unusual manner which he could not, by reasonable and practicable precaution, have prevented. . 4. A., a zamindar, maintains an ancient tank on his zamind&ri for the benefit of agriculture. An extraordinary rainfall causes the tank to burst, and the water escaped therefrom carries away a building belonging to B. If A. has been diligent in maintaining the tank, and making pro- vision against any ordinary overflow of water, A. has not wronged B. (r). 5. A. sends a parcel containing a detonating mixture to a railway station, to be carried as goods by the railway company, without informing the company's servants of the nature of the contents. While B., a ser- vant of the company, is handling the box for the purpose of dispatching it by train, and with care sufficient for the safe and proper handling of ordinary goods, the contents explode and injure B. There is nothing to show the specific cause of the explosion. A. has wronged B. The ex- plosion also damages a cart of C.'s, which has brought other goods to be dispatched by train. A, has, but the company has not, wronged C. (s). 6. A., having left a loaded gun in his house, sends B., a young person inexperienced in handling firearms, to fetch it. A. tells B. that the gun is loaded, and directs him to handle it carefully. B. fetches the gun, and on his way back points it in sport at C. The gun goes ofi', and wounds C. A. has wronged C. (t). (q) BieeVatighanv.TaffValeE.Co., Canatenaqaram, L. E. 1 Ind. App. 5 H. & N. 679 ; Fremantle v. L. % 364. N. W. S. Co., 10 C. B. N. S. 89. (s) Lyell\. Ganga Dai, 1. L. R. Such, a, C3,se &a Jones Y. Festiniog B. 1 All. 60; cp. Fiirrant v. Barnes, Co., L. K. 3 Q. B. 733, where the U C. B. N. S. 663. It is for the use of locomotive engines not being plaintiif to prove want of notice; especially authorized, it was held see JJ illiams v. Fast India Co., 3 that the company used them at its East at p. 199, where a somewhat peril, could, I suppose, hardly artificial reason is given. It seems occur in British India. If it did, enough to say that the want of and if the clause now submitied notice is an essential part of the had become law, the decision would plaintift''s case ; the duty is, not to be the other way, unless Act IV. abstain from sending dangerous of 1879, s. 4, implies that using goods, but to give sufiicient warn- locomotives without the sanction ing if you do. As to the non- of the Governor General in Council hability of a pirson innocently is absolutely unlawful. As to the dealing with dangerous things of u^eof fireforagiiculturalpuiposes, whose true character he has not such as burning weeds, see Tmber- notice, ste The 2\itrn-Glycerine Case, vilY. Stamp, 1 Salk. 13, and 1 Ld. Sup. Ct. U. S., 16 Wall. 6'26. Eaym. ; and D. 9. 2, ad 1. Aquil. {t) Mxon v. Sell, 5 M. & S. 198, 30 6 3. and Bigelow L. 0. 568, which goes [>■) Madras R. Co. v. Zmhind&r of even further. 698 INDIAN CIVIL WRONGS BILL. Liability of occu- piers of property. 7. A. is a dealer iu drugs. By the negligence of A.'s servant a jar of extract of belladonna is labelled as extract of dandeUon, and sold on A.'s behalf to B., a retail druggist. B., in good faith, resells part of it as extract of dandelion to C, a customer, who by taking it is made danger- ously ill. A. has wronged C. («). 69. (1) A person possessed of — (a) any immoveable property : (b) any building or structure intended for human occu- pation or use : (c) a,ny carriage or vessel intended for the conveyance of human beings, or of goods which are to be handled in that carriage or vessel [x) : is in this and the next following section called an occupier. (2) An occupier must keep the property occupied by him in reasonably safe condition and repair as regards — (a) persons using that property as of right : (b) persons being or passing near that property as of right : and is liable as for negligence to any such person who is injured by want of such condition and repair (y). (3) A person who has delivered out of his possession to be employed for the purposes of his business any such carriage or vessel as in this section mentioned continues responsible during such employment for any want of reasonably safe condition and repair which existed at the time of his parting with the possession. Explanation. — The existence of a defect which the usual care and skill of competent persons could not have dis- covered or prevented (in this section called a latent defect) («) Thomas V. Winchester, 6 N. Y. 397, Bigelow L. C. 602. See this case discussed p. 456, above. {x) See Fmdkes v. Metrop. Disi. R. Co., 5 C. P. T>. 157, especially the judgment of Thesiger L. J. The words now inserted are sug- gested by Elliott v. Sail, 15 Q. B. D. 316. (j/) Most of the previous authori- ties are collected and discussed in Indermaur v. Barnes, L. R. 1 0. P. 274 (in Ex. Ch. 2 C. P. 311). SPECIAL PAET. is not a want of reasonably safe condition and repair, but the burden of proof is on the occupier to show that the defect which caused an injury was latent. (4) Safe condition includes careful management. (5) Persons using property as of right include — (a) servants (2) or other persons being or coming thereon in performance of a contract with the occupier ; (b) persons being or coming thereon by the occupier's invitation or with his consent on any lawful business. Illustrations. 1 . A. is a meroliaiit iu Bomlbay. His ofSce is approached by a passage, forming part of the premises occupied by him, in which there is a trap- door. At a time when the trapdoor is left open, and not properly guarded or lighted, B., a customer of A., comes to the office on business, and falls through the trapdoor and is injured. A. has wronged B. [a). 2. A. digs a pit on his own land close to a highway, and does not fence it off, light the place after dark, or take any other precaution for the safety of persons using the highway. B., lawfully walking on the high- way after dark, falls into the pit and is injured. A. has wronged B. (J). 3. A., the owner of a road subject to rights of way, puts a heap of building materials on the road, and leaves them at night unwatched and unlighted. B., a person entitled to use the road, drives along the road after dark, his carriage runs against the heap, and his horse and carriage are damaged. A. has wronged B. (c). 4. The X. Company are possessed of a dock, in which for payment from shipowners they provide accommodation for ships, including gangways between ships in dock and the shore, and staging for the use of workmen employed about ships in the dock. A. is a person having lawful busi- ness on one of the ships in the dock ; to reach the ship he walks on one of the gangways provided by the X. Company. The X. Company's ser- vants having placed the gangway iu an unsafe position, it gives way under A., and he faUs into the water and is injured. The X. Company has wronged A. B. is a workman employed to paint a ship in the dock. (z) English common law authori- as a customer, but I think he ought ties incline to the view that a ser- to be so. vant injured by the defective state (a) Chapmany. Eothwell, E. B. & of the place where he is employed E. 168, 27 L. J. Q. B. 31,5 (treated can hold the master liable only for by the Court as a very plain case), personal negligence. I am not sure (b) Barnes v. Ward, 9 C. B. 392, that even the Employers' Liability 19 L. J. C. P. 195. Act puts him on the same footing {c) Corby v. Hill, 4 C. B. N. S. 556, 27 L. J. C. P. 318, 599 600 INDIAN CIVIL WRONGS BILL. Position of licensees using pre- mises. He stands for that purpose on a staging provided by the X. Company, which is in fact unfit for such use by the negligence of the X. Company's servants in not fitting it with ropes of proper strength. One of the ropes breaks, and B. falls into the dock and is hurt. The X. Company haa wronged B. (d). 5. A. is possessed of a bridge crossing a public road. As B. is pass- ing along the road under the bridge, a brick falls upon him from the brickwork of the bridge and injures him. There is no .-specific proof of the amount of care used in making or maintaining the bridge. Unless A. proves that the fall of the brick was due to some cause consistent with due care having been used in the maintenance of the bridge, A. haa wronged B. (e). 6. A. is possessed of a lamp which is affixed to the wall of his house and projects over a public street. The fastenings of the lamp, being out of repair, give way, and the lamp falls on B.. a foot-passenger in the street, and injures him. A. must make compensation to B., even if A. has employed a person whom he reasonably believed to be competent to keep the lamp in repair (/). 70, Where a person uses or comes on any property with the occupier's permission, but not as of right, the occupier of that property is liable for harm suffered by the first- mentioned person from a defect in the condition or repair of that property only if the defect is such as to constitute to the knowledge of the occupier a danger not discoverable by a person using ordinary care (^). (rf) Smith V. London if St. Katha- rine Doiks Co., L. E. a C. P. 326. Cf. Francis T. CoekrcU, L. R. 5 Q. B. 501 (Ex. Ch.), where, however, the duty was also put on the ground of contract ; Heaven v. Fender, 11 Q. B. Div. 503. [e] Kearney v. L. F. % S. C. F. Co., Ex. Ch. L. R. 6 Q. B. 759 ; cp. Fi/rne v. Foadle, 2 H. & C. 722, 33 L.J. Ex. 13,andiuBigelowL. C, where it is said that * ' it is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, " and there was no positive evidence that the barrel was being handled by servants of the defendant, or being handled carele^Kly. (/) Tarry v. Ashton, 1 Q. B. D. 314. [y] It is rather difficult to say in what respect, if any, a " bare liceu- see " is better off than a trespasser, except that he might, once know- ing the occupier to allow his pre- sence, be entitled to regard aa ' ' invitation ' ' this or that indication which could not be presumed to be meant for trespassers. And the position of a visitor or guest (in the ordinary sense, not a paying guest at an inn) is not quite clear. It does not seem needful, however, to enter on these questions. The case usually cited for the relation of a host and (gratuitous) guest is Southcote V. Stanley, 1 H. & N. 247, 25 L. J. Ex. 339, which, however, is not altogether satisfactory. The line of reasoning seems to be that a guest voluntarily puts himself in the same plight as a member of the family, and as ■ such must take SPECIAL PART. 601 Illustrations. 1. A. is possessed of land on which there is an open stone quarry. There is no right of way over the land, but people habitually pass and repass over it without interference from A. B., crossing the land after dark, falls into the quarry and is hurt. A. has not wronged B. (A). 2. A. is possessed of a yard in which machinery is in motion, and permits B. to use a, path across it for B.'s own convenience. If the danger of approaching the machinery is apparent to a person using ordinary care, A. is not under any duty towards B. to have the machinery fenced or guarded (i). 3. A. is driving his carriage, and offers B. a seat in it. B. enters the carriage, and shortly afterwards the carriage is upset by the breaking of a bolt, and B. is thrown out and hurt. Unless A. knew the carriage to be in an unsafe condition, A. has not wronged B. (/t). Chapter IX. Of Damages for Civil Wrongs [1). 71. A person who has been wronged is entitled to recover Measure from the -nTongdoer as damages such a sum as in the Lsfn'*' judgment of the Court will fairly compensate him for the s^'i^'^^l- harm or loss he has sustained. 72. Where specific property has been wrongfully dealt Damages for iniury with, the Court may award damages equivalent to the to speciiio extent to which the value of that property is diminished, P^°P^^'y- but is not bound to award as compensation the cost of replacing the property in its former condition. things as he finds them. It is also 736, 31 L. J. Ex. 201, a rather attempted to bring this under the strong case, but for that very rea- same principle as the doctrine of son a good illustration, "common employment," then in {k) Aloffatt v. Bateman, L. R. 3 great favour with the Court of P. C. 115. Exchequer. [See p. 471 above.] (i) These clauses on damages are ih) Mounsellv. Smyth, 7 C. B. N. a mere sketch ; but it may be a S. 731, 29 L. J. C. P. 203. question whether anything more («) Bolch T. Smith, 7 H. & N. elaborate is desirable. 602 INDIAN CIVIL WRONGS BILL. Illustration. A. -wrongfully digs out and carries away a quantity of earth from Z.'s land. Z. must make compensation to A., but A. cannot claim to fix the damages by what would be the cost of replacing the earth dug out ()h) . Aggrava- 'J^^ Jq awarding damages for wrongs the Court may mitigation have regard to the knowledge, intention, and conduct of ges. " either or both parties, and may increase or diminish the amount of its award accordingly. Illustrations. 1. A. has defamed Z. A. may show in mitigation of damages that when he made the defamatory statement he believed on reasonable grounds that it was true. 2. A. has negligently pulled down a buOding on his own land to the damage of Z.'s adjacent land. Z. may show in aggravation of damages that A. wished to disturb Z. in his occupation and pui-posely caused the work to be done in a reckless manner (k). [m) Whitliam v. Kershaw, 16 Q. («) Emllen v. Myers, 6 H. & N. B. Div. 613. 54, 30 L. J. Ex. 71. Schedule SPECIAL PART. 603 THE SCHEDULE. ^cis of the Governor General in Council. Year and Chapter. XII. of 1855 XIII. of 1855. XVIII. of 1855 XV. of 1877 Title or Short Title. An Act to enable execu- tors, administrators, or representatives to sue and be sued for certain wrongs. An Act to provide com penaation to families for loss occasioned by the death of a person, caused by actionable wrong. An Act for the protection of judicial officers. The Indian Act, 1877. Limitation Extent of Kepeal. The whole as regards causes of action within this Act. The like. The like. The descriptions of suits numbered respectively 20, 21, and 3a in the Second Schedule are to be read, as regards causes of action within this Act, as if " the Civil Wrongs Act, 18 ," were substi- tuted for the references to Acts XII. and XIII. of 1855, in those descrip- tions respectively con- tained. INDEX. *„• The ilalie letters refer to foot-notes ; thus 438 s means note s on page 438. Abatement : of nuisance, 376. whether applicable to nuisance by omission, 378. unnecessary damage must be avoided in, 378. ancient process for, 379. difi&culty of, no excuse, 385 sqq. Accident : inevitable, damage caused by, 121. inevitable, 121 — 135. American law as to, 122, 124, 125—128. inevitable, English authorities as to, 1 29. inevitable, cases of, distinguished from those of voluntary risk, 161. liability for, in special cases, 438. non-liability for, in special cases, 444. non-liability for, in performance of duty, 446. negligence when presumed from, 448. Act of God : non-liability for, 444. Act op Paeliament : remedy under, when exclusive, 181. damage must be within mischief of, 182. Action : forms of, 2, 13, 14. causes of, in contract or tort, 3, 5. on the case, 13, 14. convicted felons and alien enemies cannot have, 49. personal, efFect of a party's death on, 55. survival of cause of personal, exception in early English law, 56. ioT iDJuiy per quod servitium amisit, 57, 210, 212. for injuTy per quod consortium amisil, 210. for wrongs to property, when it survives for or against executors, 69. cause of, under Lord Campbell's Act, 61. against viceroy or colonial governor, 101. 606 INDEX. Action — continued. right of, for damage in execution of authorized works, 116, 120. cause of, when it arises, 171. single or severable, 177. for breach of statutory duty, 180. against joint wrong-doers, exhausted by judgment against any 183. when wrong amounts to felony, 18.5. local or transitory, 189. malicious bringing of, whether it can be a tort, 289. early theory of causes of, 475. on the case, development of, 476. causes of, their modem classification, 477. form of, duty not varied by, 482, 486. concurrent causes of, in contract and tort, 478. concurrent causes of, against different parties, 490. history of forms of, 515. real, when abolished, 2. form of writ of right, 13. replaced by action of ejectment, 166 a. Acts: voluntary, liability for accidental consequences of, 124, 127, 132. Aois OP State, 99. AnMiEAiTT : rule of, where both ships in fault, 428. Aqeht : implied warranty of authority by, 58 k. liability of principal for authorized or ratified acts of, 69. when entitled to indemnity, 184. liability of person assuming authority as, 272. misrepresentations by, 280. false representations made by or through, 280, 281. how far corporation can be liable for deceit of, 282. implied warranty of authority of, 489. Agkeement : unlawful, cause of action connected with, 164. AiE : no specific right to access of, 372. Alien Enemy : cannot sue, 49. Amendment: of statement of claim to increase damages claimed, 173 s. Ameeican Law : as to liability of corporations, 53 t. as to want of ordinary care, 40/. gives compensation for damage by death, 64. as to liability of master for acts of servant, 70. doctrine of a common employment in, 90. INDEX. 607 Ameeican IjA-w— continued. employers' liability in, 96. as to judicial aots, corresponds witt Englisli, 106. as to ineyitable accident being no ground of liability, 122 sqq. as to deceit, 265. on accidents during Sunday travelling, 164. as to conspiracy not being cause of action, 294. as to negligence, 395, 399 b, 411 p, 427. as to contributory negligence, 12, 427 u, 433, 436. as to slander of title, 284. as to malicious wrongs, 294. as to waste, 313, 314 t. Lumley v. Gye followed in, 602. as to parol licences, 341. as to causing breach of contract, 603 a. as to rigbts of receiver of telegram, 604. AfJ TMAT. R : killing of, in defence of property, 159 z, u. trespasses by, 159, 160. mischievous, responsibility for, 450. Aebiteation : how death of party before award aflects cause of action, 65. Aeeiteatoe : not liable for errors in judgment, 106. Aeeest : when justified, 204. And see Impeisonment. AsPOETATiON : 307, 310. AasATjLT : when not justified by consent, 146. acts for benefit of person who cannot consent, 167. what is, 197. acts not amounting to, 199. words cannot be, 200. justification by consent, 200. seH-defence, 158, 201. when action barred by summary process, 202. Assets : following property or its value into wrong-doer's, 65. ASSTTHPSIT : action of, its relation to negligence, 391. development of, from general action on the case, 479. implied, where tort waived, 488. AvEEAGE : general, law of, 157. 608 INDEX. Bailee : justification of, in re-delivery to bailor, 323. interpleader by, 324. excessive acts of, wben conversion, 324. liable to action of trespass for abusing subject-matter of bailment at will, 332. bailment over by, 333. Balloon : trespass by, 34 it, 308. Bankbuptot : no duty to prosecute upon trustee in, 187. debt discharged by, in American law, 192. imputatioQ of, to tradesman, actionable, 228. malicious proceedings in, 290. Baeeistee : revising, powers of, 104 . slander of, 227. And see Counsel. Batteet: what is, 196. And see Assault . Beeakino Dooes : when j ustifled, 345 . BUILDINOS : duty of keeping in safe condition, 459. falling into street, 468. occupiers of, duty of, to passers by, 467. Business : slander on, injunction to restrain, 179. slander of a man in the way of his, 227 sqq, words indirectly causing damage in, 229. Caiens's Act (Loed) : 380 /. Campbell's Act (Lord), 6 & 7 Vict. u. 96 : / as to pleading apology, &o., in action for defamation, 254. Campbell's Act (Loed), 9 & 10 Vict. o. 93 : what relatives may recover under, %\ t. claim under, does not lie in Admiralty jurisdiction, 61 t. construction of, 62. what damages may be recovered under, 63. cause of action under, not cumulative, 64. Canal : escape of water from, 446. Capacity: personal, with respect to torts, 48 syj. INDEX. 609 Caeeiaqe : responsibilities of owner of, 464, 466, 474. Caketee : common, duty of, 481, 492. Case : action on the, development of, 476. CAITI.E: trespass by, 309. liability for trespass by, 449. bitten by dog, no scienter need be proved, 451. right of owners of, to safe condition of market-place, 466. Cause : immediate or proximate, 26, 28, 36. reasonable and probable, for imprisonment, 207. proximate, in law of negligence, 412, 417, 420 sqq. of action. See Aorioisr. Catjtion : consummate, required with dangerous instrument, 45. And see NEaLioENCE. Childeen : when deprived of remedy by contributory negligence of parent, &c., 425. Crvn. Peooeedings : maUcious bringing of, whether a tort, 289. CT.EEgYMAN : Complaint to, regarding curate, 248. Cltjb : quasi-judicial power of committee, 110. cases on expulsion from, 111 s, t. chance of being elected to, no subject of legal loss, 224. CoDincATiON : of law of civil wrongs in India, 536. College: quasi-judicial powers of, 110. Collision : between ships, 428. And see Negligence, Ratlwat. Colonial Goveenment : liable for management of public harbour, 64. Colonial Legislatitee : control of, over its own members, 109 p. Colony : governor of, liable in courts of colony for debt, 102. CoMiTT : rule of, as to suits affecting foreign sovereigns and states, 103. Comment : fair, not actionable, 236. what is open to, 238. Common : no distress by commoners inter se, 349. "Common Employment : " the doctrine of, 90. what is, 91. relative rank of servants immaterial, 92. no defence for master under Employers' Liability Act, 524 n. Tj R R 610 INDEX. Common Eights : immtmity in exercise of, 135. COMMONEB : any one can sue foe injury, 371. may pull down lionse on common after notice, 376. may pull down fence without notice, 377. CoMMrrNioATiON : wliat is privileged, 246 sqq. Company : fraud of directors, 86. remedy of shareholder against, for fraud, 86. removal of director. Ills. false statements in prospectus of, 261, 274. representations in prospectus of, 277. malicious proceedings to wind up, 290. Compensation : statutory, for damage done by authorized works, 116. Competition : in business or trade, no wrong, 135, 138. as to malice in connection with, where acts lawful, 143 z, u. combination in trade to exclusion of, may not be wrong, 296. Consent: effect of, in justifying force, 145, 150. And see Licence. CONSEaiTENOBS : liability for, 26. near or remote, 27, 32, 46. "natural and probable," 28, 31, 36, 40, 227. liabOity of wilful wrong-doer for, 31, 43. supposed limitation of UabOity to " legal and natural," 500. CONSPIEACT : whether a substantive wrong, 292. how far trade combination to exclusion of other traders is a, 296. Constable : must produce warrant, 107. is liable for mistake of fact, 108. statutory protection of, 107, 194. powers of, to arrest on suspicion, 204. protection of, in cases of forcible entry, 348. ' ' Consummate Caee : ' ' cannot always avoid accident, 121. requirement of, 128. CoNTAaious Disease : imputation of, 226. Conieact : actions of, as opposed to tort, 2, 6, 15. right of action upon, not extended by changing- form, 49. INDEX. 611 CoNTEiCT — contimied. law of, compKcated -with that of tort in province of deceit, 257. malicious interference with, 295, 499. effect of, on title to property, 300. overlaps with tort in law of negligence, 391. effect of, on negligence, 399. relations of, to tort, 475 sqq. negligence in performing, how far a tort, 481, 482. breach of duty founded on, 483. rights arising from, not affected by suing in case, 484. where action of tort lies notwithstanding existence of doubt as to, 48G. implied in law, as alternative of tort, 488. with one party, compatible with actionable breach of duty in same matter by another, 490. breach of, whether third party can sue for an act which is, 493. with servant, effect of, on master's rights, 493. stranger to, cannot sue for damage consequential on mere breach of, 496. breach of, concurring with delict in Roman law, 497. causing breach of, under what conditions a tort, 498. existence or non-existence of, as affecting position of third parties, 608. , measure of damages in, as compared with tort, 510. to marry, exceptional features of, 512. CONTEACTOB : independent, responsibility of occupier for acts and defaults of, 459. independent, duties extending to acts of, 464 g, 470. CoNTEiBTTTiON : between wrong-doers, 183. CoNTEIBtTTOBT NEaUQENOB : not punishable as a positive wrong, 163. plaintiff is not bound to negative, 399. what it is, 412. proper direction to jury, 413. rule of, founded in public utility, 414. true ground of, " proximate " or " decisive " cause, 417, 420, 421, 423. self-created disability to avoid consequences of another's negli- gence, 418. illustrations, 419. as to damages in oases of, 420, 421. of third persons, effect of, 422, 424, 500. negligent acts simultaneous or successive, 421. doctrine of " identification " now not law, 422, 427. accidents to children in custody of adult or unattended, 425. R R 2 612 INDEX. CoNTEiBtJTOET Neqlioenob — continued. unknown in Admiralty jurisdiction, 428. separation of law and fact in United States, 435. in Roman law, 533. And see NEOLiaENOB. CONVEESION : what is, 316. distinguished from injury to reversionary interest, 317. meaning of, extended, 317. acts in good faith may be, 318. refusal as evidence of, 319. mere claim of title or collateral breach of contract is not, 320. qu. as to dealings under apparent authority, 321. by bailees, 323. distinction between varieties of, and cases of injury without con- version, 327. by estoppel, 327. Convict : cannot sue, 49. CoFsnaiQHT : principle of slander of title extended to, 287. COBPOBATION : liability of, for wrongs, 53. responsibility for performance of public duties, 53. Eable for trespass, 5Z t. may be liable for fraud, &o., of its agents, 85 j), 86. liability of, for fraud of agent, 282. whether action for malicious prosecution will lie against, 289. cannot commit maintenance, semble, 298. Cosia : relation of, to damages, 170 I. present procedure as to, 170 n. presumed to be indemnity to successful defendant, 289. Counsel : immunity of words spoken by, 242. County Council : licensing sessions of, 242. County Couet : statutory distinction of actions in, 484, 522. County Couet Judge: powers of, 106. Couet: privilege of statements made in, 242. control of, over jury, 253. Couet and Juey : functions of, in cases of negligence, 396, 397. usual and proper direction as to contributory negligence, 413. INDEX. 613 Ootjet-Maetial : protection of members of, 106. ■whether action lies for bringing one before, witliout probable cause, 108. Ceikb : oral imputation of, when actionable, 224. Oeiminai, CoNTBEaiTiON : former action of, 211. Oeiminai; Law : attempted personal offences, 29 m. what is immediate cause of death in, 36. individuals bound to enforce, 107, 187 r. forfeiture of deodand, 123. as to self-defence, 158. conversion necessary for larceny, 316. distinction of receiving from theft in, 334. as to asportation, 347. proscution for public nuisance, 360 sgq. CErncTESM: : limits of allowable, 236, 238. Cxtlpa: equivalence of culpa lata to dolus, 256, 394. licensor not liable to gratuitous licensee for, 474. Ou'STODt: distinguished from possession, 304. Custom : loss of, no right of action for, 138, 141. Custom of thb Bkat.w : meaning of, 482, 484. CusTOMEB : right of, to safe condition of buildings, &c., 461. Damaob : relation of, to wrongful act, 19. for " nervous or mental shock," whether too remote, 45. unavoidable, no action for, 117. effect of, as regards limitation, 193. special, in law of slander, what, 222. special, involves definite temporal loss, 223. actual, unnecessary to constitute trespass, 307. particular, in action for publio nuisance, 361. not when private right infringed, 371. special, procuring breach of contract actionable only with, 498. remoteness of, 27, 35 sgq., 500. Da MA PES : measure of, 27. nominal, ordinary, or exemplary 169. carrying costs, 170 I, m, n. 614 INDEX. Damaoks — continued. nominal, as test of absolute right, 170. when damage gist of action, 171. ordinary, measure of, 173. exemplary, 174. for false imprisonment, 174. mitigated, 176. only once given for same cause of action, 177. for false representation, 179. measure of, in action for inducing plaintiff by false statements to take shares in company, 180 u. in actions for seduction, 213. mitigation of, by apology, in action for slander or libel, 254. in action for trover, 319. relation of costs to, 356. for nuisance, 376. to what date assessed, 380. in cases of contributory negligence, 420, 421. measure of, in contract and tort, 510. for breach of promise of marriage, 176, 512. T)AiMTjmvf Sine Inkteia, 22, 136. Dau&ee : going to, 150. imminent, duty of person repeUing, 158. position of, one knowing, 163. diligence proportioned to, 410. concealed to bare licensee, 471. licensor, liable for, 474. Dauoeeous Things : strict responsibility in dealing with, 438, 441, 451, 455, 456. Death : of party, effect of, on rights of action, 55. of human being, said to be never cause of action at common law, 67. Deceit : action of, damage must be shown, 172. may give innocent agent claim for indemnity, 184/. what, 256. conditions of right to sue for, 259. must include falsehood in fact, 260. knowledge of untruth or culpable ignorance, 260. no cause of action without both fraud and actual damage, 260. may include misstatement of law, 262. by garbling, 263, INDEX. 615 Deceit — eontinited. statement believed by maker at the time is not, 263. ground of belief looked to as test of its reality, 264. American law as to, 265. effect of subsequent discovery of untruth, 267. reckless assertion, 269. breach of special duty, 269. intention as element of, 271. by public representations, 272. as regards prospectus of new company, 274. statement not relied on is not, 274. effect of plaintiff's means of knowledge, 275. as to-reUanoe on ambiguous statements, 277. effect of misrepresentation by or through agent, 280 — 284. action of, against falsifier of telegram, 504 sqq. Defamation : damages in action of, 170. special damage, 172. gross, damages for, 175. in general, 219 sqq. spiritual, 226 t. of one in his business, 227, 228. in what sense "malicious," 230. "pubHoation" of, 230. construction of words as to defamatory meaning, 233. by repetition, 235. exception of fair comment, 236. justified by truth of matter, 239. immunity of speech in Parliament, 241. in meetings of county council, 243 n. words used by judges and others in judicial proceed- ings, 242. naval and military, judicial or official proceedings, 243. privileged communications generally, 244. exception of "express malice," 245. what axe privileged occasions, 246. privilege of fair reports, 248. newspaper reports of public meetings, 251. And see LibeIi, Slanbeb. Defect: latent, non-responsibility for, 466. in structure, responsibility of occupier for, 468. DbIiICts: Eoman law of, 16 — 18. terminology of, Austin on, 18 «, 616 INDEX. Detintje, 13, 15, 303. nature of ■writ of, 311. Digest : of Justinian, ad legem AquUiam, 17, 533. And see Zex Aquilia. DmaENOB : liability even when utmost used, 11. amount of, required by law, 24, 25, general standard of, 390, 394. includes competent ekiU where required, 395, 400. due, varies as apparent risk, 410. DiEBCTOBs' Liability Act, 1890, as affecting decision in Berry v. Peek, 271. DiSABUJTT : suspending statute of limitation, 193. DiscEETioN : where given by legislature must be exercised with regard to other rights, 119. DiSTEESS : in general, 349. damage feasant, 349, 354, 356. for rent, how limited, 354 a. liability for, 355. excess in distress damage feasant, effect of, 355. Docks : owner of, answerable for safety of appliances, 464. Doq: whether owner liable for mere trespass of, 450. liability for vice of, 451. statutory protection against, 451 t. DoQ-SPEAES : authorities on injuries by, 160 a. Dolus, 17, 55, 256. DoMiNirs Peg Tempoee, 74. Detvee: duty of , 155. Detvebs : negligence of both, 423. Deitnken Man : authorized restraint of, 114. Duel : always unlawful, 147. Duties : absolute, imposed by policy of law, 7, 19. relation of legal to moral, 9, 11. to one's neighbour, expanded in law of torts, 12. Duty : to one's neighbour, nowhere broadly stated, 21. specific legal acts in breach of, 23. INDEX. 617 Duty — continued. of respecting' property, 24. of diligence, 24. of -warning, knowledge of risk as opposed to, 152. statutory, remedy for breach of, 180. breach of, in course of employment, action for, 480. Easement : disturbance of, analogous to trespass, 335. licence cannot confer, 337, 341. of Kght, 372. EnrrOE : admitting publication, not bound to disclose actual author, 232. Election : to sue in contract or tort for misfeasance, 478. doctrine of, seems not applicable when duties are distinct in sub- stance, 495. Emploteb : when answerable as master, 72, 73. Employees' Liability Act, 88, 94. text of, 523 »gq. as regards " volenti nonfit iniuria," 163. Emplcybient : what is course of, 76. public, of carriers and innkeepers, 481. Entey: by relation, 334. when justified, 336 sqq. fresh, on trespasser, 342, 345. to take distress, 349. of necessity, 351. EauiTY: remedies formerly peculiar to, 166. former concurrent jurisdiction of, in cases of deceit, 178. Ebeoe : clerical, responsibility for, 228, 508. Estoppel : if no contract or breach of specific duty, statements to be made good only on ground of fraud or, 270. Evidence : of malice, 253. of conversion, 317. of negligence, 393. question whether there is »««/ for court : inference from admitted evidence for jury, 397. of contributory negligence, 414. ExEOtTTiON : of process, justification of trespass in, 342. 618 INDEX. ExEOUTOBa : statutory riglits of action by, for wrongs to testator's property, 59. liability of, for wrongs of testator, 60. to restore property or its value, 66. wbetber not bound to prosecute for felony before bringing civil action, 187. cannot sue for personal injuries to testator, even on a contract, 613 Explosives : liability for improper dealing with, 125, 454. liability for sending without notice, 455. Eaotoes Acts : validity of dealings under, 301. good title acquired under, 509. Faootties : ordinary use of, presumed, 410. Faise Impeisonment : what is, 202. distinguished from malicious prosecution, 205. prosecutor or officer answerable for, 205. Eblony : " merger " of trespass in, 185. arrest for, justification of, 204. imputation of, when libellous, 224, 226, 241 . Fenob : when trespass for defective, 350. falling in neighbour's laud, 444. Febet : refusal to carry passengers by, 319. franchise of, 336 c. nuisance to, 375. Fine : in trespass under old law, 3. Fibe: as justification for trespass, 351. negligence as to, 394. escape of, from railway engines, 408. safe keeping of, 452. responsibility for carrying, 453. FiBE-AKMS : accidents with, 127. consummate caution required in dealing with, 454. Footpath : diversion of, creates duty to warn passengers, 467. INDEX. 619 FoEOiBLE Entbi: statutes against, 343. with good title, whether civilly wrongful, 345. Fos-HUNTiNo: trespass in, not justified, 363. Fbauob (law of) : Conseil d'fetat inquires into "acts of state," 104. rule of, of five years' prescription, 191. Feanchise : maUoious interference with exercise of, 297. Fraud : of agent or servant, 8S. of partners, 87. compensation for, in equity, formerly by way of restitution, 179. concealed, effect of, on period of limitation, 194. equitable jurisdiction founded on, 256. "constructive," 258. "legal," 259, 266. negligence however great does not of itself constitute, 266. of agents, 259. relation of, to infringement of trade-marks, &o., 287. effect of, on transfer of property or possession, 300, 301. Fbost: damage brought about by extraordinary, 41. G-As: escape of, 456. GrOODWin : protection of privileges analogous to, 287. GovEENOE : colonial, actions against, 102. Gbant: distinguished from licence, 338. but may be inseparably connected with licence, 338. distinction of licence from, as regards strangers, 341. GuABAinrr : misrepresentations amounting to, 278. Guest : gratuitous, is mere licensee in law, 473. HlOHWAT : justification for deviating from, 350. nuisances by obstruction of, 360, 361, 362, 371. cattle straying off, 449. traction or steam engine on, 453. rights of persons using, to safe condition of adjacent property, 467, 469. HoBSE : injuries caused by, 40. trespass by, 449. 620 INDEX. Husband and Wife : actions by and against, 61. action of personal tort between, does not lie, 52. busband may not now beat wife, 113 a. action for taking or enticing away wife, 208, 210. assault or crim. con., 211. loss of consortium between, is special damage, 224. libel on husband by letter to wife, 232. " Identipioation : " exploded doctrine of, in cases of negligence, 422, 428. IiTPBisoNnrFiNT : does not affect period of limitation, 193^5. Impeisonjtent, False : damages for, 175. justified by local act of indemnity, 188. definition of, 202. on mistaken charge, followed by remand, 206. what is reasonable cause for, 207. Inooepoebai, Rights : of property, violation of, 335. Indemnitt : claim to, of agent who has acted in good faith, 184. colonial Act of, 188. "Independent Contbactoe : " 67, 68, 72. India, Beitish : dealings of East India Company with native states, 100. protection of executive and judicial of&cers in, 108 I, 109. Indian CrvrL Weonos Bill : draft of, 536. In? ant: camiot be made liable on contract by changing form of action, 48. liability of, for torts, 48. liable for substantive wrong though occasioned by contract, 49. cannot take advantage of his own fraud, 50. whether liability limited to wrongs contra pacem, 53. not made liable on contract by suing in form of tort, 483. Injunction : jurisdiction to grant, 178. interlocutory, 179, 179 s, 381 i. to restrain continuing trespass, 358. to restrain nuisance, 376, 381. mandatory, 381 i. on what principles granted, 381, 382. not refused on ground of difficulty of removing nuisance, 385. under C. L. P. Acts, 166 b. INDEX. 621 Inkeeefbb : sellmg goods of guest, 325 p. oaunot dispute entry of guest, 354. ^ duty of, 481. Isms OF CoiTEi : quasi-judioial powers of, HO. Inntjenbo : meaning and necessity of, 233. IirsTEtrMENT, DANaEEOtis : responsibility of person usiug, 45, 437, 459. Insttbance: construction of policy of, excepting obvious risk, 155. eflEect of, on necessity of salvage work, 157 s. duty in nature of, 20, 443. Intention: not material in trespass, 9, 12. general relation of, to liabUity, 28, 29. inference or presumption of, 31. Intimidation : of servants and tenants, 217. when "picketing " becomes, 217 ^. Invitation : rights of persons coming on another's property by, 460 sciq. " Invitation to Ali&ht " cases, 402. Ieeland : Lord-Lieutenant exempt from actions in, for official acts, 102. Judge : protection of, in exercise of office, 104. of inferior court must show jurisdiction, 104. not liable for latent want of jurisdiction, 105. allegation of malice will not support action against, 105. must grant habeas corpus even in vacation, 106. could not refuse to seal bill of exceptions, 106. Jitdoment : against one of several wrong-doers, effect of, IBS. JtTDioiAi Acts : of persons not judges, immunity for, 106. distinguished from ministerial, 205, 206. protection of, 241. JuDioiAL Peoobedings : reports of, 249. JijBionJM RusTiotui, 428. 622 INDEX. JlTEISDICTION : to grant mjunctiona, 178. local limits of, 187. JuET. See CouET and JtrET. Jus Teeth : cannot justify trespass or conversion, 330. Justice op the Peace : limitation of actions against, 1 94. memorial as to conduct of, 248 a. JUSIIEIOATION AND ExOTJSE : general grounds of, 97 sqq. of defamatory statement by trutt, 239. by licence, 336. by authority of law, 342. for re-entry on land, 343, 345. for retaking goods, 346. under legal process, 348. for taking distress, 349. determination of, 355. Laboueees, Statute oe: action under, 212, 216. Lamd: acts done in natural user of, not wrongful, 138. artificial works, on, 140 x. Landloed and Tenant : questions of waste between, 315. which, liable for nuisances, 387. Landownees : duty of, as to escape of dangerous or noxious things, 439, 443. adjacent, duties of, 467. Laecent : when trespass becomes, 346. Law : misrepresentation of, 362. Leave and Licence : defence of, 145 sqq. as justification for assault, 200. And see Licence. Lessee : for years holding over, no trespasser, 353. Lex AauiLiA : rules of liability under, compared with English law, 124 a. Digest on, compared with English law, 178 I. Roman law of, liabihty under, 473 t, 497 li, 533, INDEX. 623 Lks Poei : regard to, in English courts, 189, 191. T.rR-RT, : damages for trespass on plaintiff's paper, -where no libel for want of publication, 176. injunction to restrain publication of, 178. slander distinguished from, 219. what is prima facie libellous, 221. what is pubUoation, 230. construction of, 233. fair comment is not, 236. Law of Libel Amendment Act, 1888. ,251. And see JDepamation. Licence : to apply bodily force, 146. to do bodily harm, good only with just cause, 146. obtained by fraud, void, 149. what, 336. revocable unless coupled with interest, 337. may be annexed by law to grant, 338. revocation of executed, having permanent results, 339. how given or revoked, 341. interest by way of equitable estoppel arisiog from, 341. not assignable, 341. does not confer rights in rem, 341. Licensee : rights of, in use of way, 468. what risks he must take, 471. Lien : distingniished from conversion, 325. Lioht: obstruction of, 372. nature of the right to, 372. what amounts to disturbance of, 373. the supposed rule as to angle of 45°. .374. effect of altering or enlarging window, 374. Limitation: statute of, 48, 192. effect of foreign law of, 190. exception of concealed fraud, 194. where damage gist of action, 193. text of statutes of, 530. LooAurr: of wrongful acts, when material, 188. Lunatic: authorized restraint of , 113. 624 INDEX. Maintbnanoe : actions for, 298. Mala Pbohibiia : no longer different in result from mala in se, 23. Malice : oases on, in connexion with competition in business, 143 z, a. ambiguity of tbe word, 143 z. effect of, in exercise of common right, 144. "implied," meaning of, 230. express, in communication on privileged occasions, 245. evidence of, 252. essential in slander of title, 284. procuring breach of contract actionable only -with, 60 1. " Malice in Fact : " 54, 245, 253. MALioioira Hindbanoe : by combination in trade, 294. Malioious IifTtmiES : by interference with lawful occupation, &c., 296. Malicious Peosecution : distinguished from false imprisonment, 205 . whether action for, lies against corporation, 289. action for, for prosecuting action in name of third person, 291. Mandamus : 166 i. Market : franchise of, 336 c. Maekbt Oveet : title acquired in, 301, 509. Maeket-Place : duty of person controUing structures in, 464. Maeeiaoe: breach of promise of, 177, 512. Maeeied Woman : damages and costs recovered against, how payable, 61. can now sue and be sued alone, 61. whether liability at common law limited to wrongs contra pacem, 63. Maeeied "Women's Peopeett Act : effect of, 4. right of action under, how limited, 61 k. Mastee and Seevant : master responsible for servant's negligence, 20. whether master can have action for loss of service when servant is killed by the injury, 57. liability of master for acts and defaults of servants, 67 sqtj. rule as to liability of master, 70. reason of, 70. temporary transfer of service, 74. execution of specific orders, 76, INDEX. 625 Masieb and Sebtant — continued. liability of master for servant's excessive acts, 80. wilful wrongs, 84. fraud, 86. forgery, 8.5 q. injuries to servant by fellow servant, 88. master must choose proper servants, 92. furuish suitable materials, 92. defence of servant by master, 158 x. action for beating servant, 210, 216. enticing away, 212. doctrine of constructive service, 216. menacing servants, 217. master giving character, 246. warning by master to fellow-servants privileged, 247. as passengers by railway, 487. whether master can sue for loss of service by a breach of contract with servant, 492. And see Seevaht. Maxims : imperitia culpae adnumeratur, 25. in iure non remota causa sed proxima spectatur, 26. a man is presumed to intend the natural consequences of his acts, 30. actio personalis moritur cum persona, 55 sgq. qui facit per alium facit per se, 70. respondeat superior, 70. sic utere tuo ut alienum non laedas, 98, 115. nuUus videtur dolo facere qui suo iare utitur, 115 c. volenti non fit iniuria, 145, 150, 153. culpa lata dolo aequiparatur, 258. adversus extraneos vitiosa possessio prodesse solet, 330. res ipsa loquitur, 469. Medicax Education : General Council of, powers of, over registered medical practitioners, 110. Meetino: pubHo, newspaper reports of, 251. Menace : when actionable, 202. to servant, 217. Mental oe Neevoits Shook : damages for, whether too remote, 46. MiLiTAET CoiTET : privilege of, 243. MiNisTBE : of Baptist chapel, removal of. 111 t. P. S S 626 INDEX. MiSEEPEESENTATION : of fact or law, 262. by omission, 263. by reckless assertion, 269. by breach of special duty of disclosure, qu. whether deceit, 269. not deceit, in the absence of fraud or positive duty to disclose, 270. reliance of plaiutifB on defendant, 274. construction of ambiguous statement, 277. amounting to promise or guaranty, 260, 278. intention to harm by the, not necessary condition of liability, 271. See Deceit. Mistake : does not excuse interference with property, 10. of sheriff, ia taking goods, 348. MOBT&AOOE : may be guilty of conversion, 326. forcible entry of, upon mortgagee in possession, 344. Motive : whether material in exercise of rights, 143, 144. considered in aggravation or reduction of damages, 177. when material part of cause of action, 501. Name: no exclusive right to use of, 145. of house, no exclusive right to, 287. Natural Justice : must be observed in exercise of quasi-judioial powers, 111. " Natueal Usee:" of property, non-liability for, 441. Navioation : negligence in, 39, 430. req^uiremeuts of, as limiting statutory powers, 118. Necessitv ■ as excuse for unskilled p erson, 25. as j astification generally, 157. "compulsive," 161. destruction of property justified by, 157. trespasses justified by, 351. Nbolkje nce : liability for, 10. equivalent to culpa, 17. liability for, depends on probability of consequence, 36. contributory, 131 i. question of, excluded when a risk is voluntarily taken, 151. knowledge of risk opposed to duty of warning, 152. INDEX. 627 Neqligenck — coniin ucd. aggravated by recklessness, 176. however great, does not of itself constitute fraud, 266. as ground of action against servant for conversion, 323/. general notion of, 389. concurrence of liabOity ex contractu anA ex delicto, 391. Alderson's definition of, 392. failure in average prudence is, 394. evidence of, 396. burden of proof on plaintiff, 397. how affected by contract, 399. when presumed, 400. principles illustrated by railway cases, 402. And see Railway. duties of judge and jury, 403. And see CoNTEiBtrroET Neoligenob. due care varies as apparent risk, 410. notice of special danger through personal infirmity, 412. of independent persons may be joint wrong, 424. as to action under difficulty caused by another's negligence, 429. one is not bound to anticipate another's, 430. choice of risks caused by another's, 431. presumption of, in cases of unexplained accident, 468. liability for, concurrent with another party's Uability on contract, 490. general doctrine of, not applicable to statements, 506. Newspapee : vendor of, not liable for hbel, 231. volunteered reports to, 251. Law of Libel Amendment Act, 1888. .251. special procedure in action for libel, 254. New Teial : for excessive or inadequate damages, 169. And see Couet aito Jtjet. NonoE : effect of, on liability for negligence, 393. judicial, of common facts, 401. of special risks, 411. of special circumstances, as affecting measure of damages, 510. Nuisance : when justified by statutory authority, 119, 120. pubUo or private, 359. particular damage from public, 361 . private, 363. affecting ownership, 364. easements, 365. comfort and enjoyment, 365. ss2 628 INDEX. NuiSAiTOE — continued. what amount of injury amounts to, 366. doctrine of " coming- to nuisance" abrogated, 367. acts in themselves useful and in convenient places may be, 368, 369. miscellaneous forms of, 369. by use of property for unusual purpose, 370. by injury common to many persons, 371. by obstruction of light, 372. And see Lioht. to market or ferry, 375. remedies for, 376. abatement of, 376. notice before abitement, when required, 377. duties of person abating, 378. damages, 379. injunction, 380. when reversioner can sue for, 385. when occupier or landlord liable for, 387. liabUitles of lessor and lessee for, 387/. when vendor or purchaser liable, 388. whether a single accident can be, 4i2 i. Obligation : ex delieio in Roman law, 16. quasi ex delicto, 18. and ownership, 497. Oitice: judicial or ministerial, 112. Opfioees : public, acts of, 106. excess of authority by, 107. naval and military, acts of, 108. subordinate, to what extent protected, 109. commanding, liability of, for accident, 127. liability of, for malicious misconduct, 298. Omission : of legal duty, liability for, 23. Paeent : authority of, 113. Pakliament : disciplinary orders of House of Commons not examinable, 109. may give a governing body absolute powers, 110. position of presiding and returning oflBcers at election for, 112. protection of words spoken in, 241. proceedings of Committee, 243. publication of papers and proceedings, 249. fair reports of debates in, 249. INDEX. 629 Paetnee : liability of, for co- partner' a fraud, 87. to servant of firm, 94. expulsion of, 112. Passengee: rights of person accepted as, 487, 491. Patent Rights : principle of slander of title extended to, 287. relation of, to possession, 336. PEEOOLATioif : underground, no cause of action for, 138 sqq. PEESoif : wrongs to the, 7. See Assault. Personal Action : olaasification of forms of, 615. Peesonai; Estate : damaged by personal injury, no cause of action, 60. "PlCEETDfO," 217 y. Pigs: may be cattle by statute, 428 m, 451 v. average obstinacy of, 428 n. Plaentiit: a wrongdoer, may still recover, 162. Pledgee : abuse of authority by, when conversion, 325. Poison : responsibility of persona dealing with, 456. Possession : more regarded than ownership in the early law, 302. right to, commonly called property, 304. distinguished from custody, 304 h. relation of trespass to, 305. constructive, 306 I. right to immediate, plaintifEin trover must have, 317. without title, protected against strangers, 329. why protected by law, 331. derivative, 333. of receiver or taker from trespaaaer, 333. restitution of, after forcible entry, 344. taken by trespass, when complete, 346. owner not in, how far liable, 474. obtaining of, by trick, 509. Post-Caed : sending defamatory matter on, 252. PoTTND : feeding animals in, 351. Peesceiption Act : effect of, on right to light, 372. Peincipai. and Agent : when principal must indemnify agent, 184. liability of principal for fraud of agent, 280. where principal is a corporation, 282. reason of liability, 283. liability of agent misrepresenting principal's authority, 489. Pbinting of Libeii : prima facie a publication, 230 p. 630 INDEX. Pbison : what is, 203. PEiviLEaB: "absolute," in law of defamation, 243. judicial and parliamentary, in law of defamation, 242. "qualified," 244. conditions of, 244. privileged occasions, and excess, 243, 252. of communicationsin interest of society or inself -protection, 246, 247. of information for public good, 247. fair reports, 248. Pbize-Fiqht : why unlawful, 147, 148. presence at, 148. Peopeett : wrongs to, 7, 9, 12, 15. acts done in defence of, 157, 159. duty to respect, 299. of goods, commonly means right to possess, 302, 317. transferred by satisfied judgment in trover, 320. PEOSEonrioN: whether necessary before offender can be civilly sued, 185 sqq, PUBLICiTION : of libel, what, 230. by agent, 232. Pueohabee: innocent, may be liable for conversion, 321, 322. Eaiiwat ; unguarded crossing, responsibihty of company for, 23, 38. remoteness of damage suffered on, 35, 41. overcrowded carriage in, 41. liability of company for mistaken acts of servants, 80. immunity or liability of company for damage in execution of undertaking, 117, 118. effect of statement in company's time-tables, 273. distraint of engine damage feasant, 349 rf. evidence of negligence in accidents on, 400, 402. level crossing cases, 402. "invitation to ahght" cases, 402, 433. escape of sparks, 408. where train fails to stop, 434. liabihty of company for damage by escape of sparks, 408, 447, 453. breaking down of embankment, 448. duty of company as to safety of carriages and platforms, 465. of structures, as regards passers-by, 467. liabilities of company from assumption of duty, independent of contract, 486, 490. Bats ; damage by, 446 ». INDEX. 631 Reasonablk Cattsb : for imprisomnent, 204. Recaption : of goods wrongfully taken, 346, 356. Rbmedies: at common law In general, 166. self-help, 167. damages, 168. kinds of damages, 169. measure of damages, 173. injunctions, 178. damages or compensation for deceit, 179. for breach of statutory duty, 180. alternative, on one cause of action, 478. Remoteness : of consequence or damage, 35, 41. Eepletin, 303, 312. Repokts : of naval and military officers, how far privileged, 243. confidential, to official superiors, 246. fair, of public proceedings, 248. newspaper, of public meetings, 250. Repeesentation : compensation or damages for false, 179. to a class of persons, 272. Res Ittbioata, 183. Revenue Oemoebs : protection of, in oases of forcible entry, 348. Reveesion : injury to, measure of damages, 173, 311. Revocation: of licence, 337, 341. RiOHi : exercise of, not cause of action, 136 i, 137. whether it can be made wrongful by malice in fact, 142. assertion of, distinguished from self-defence, 158. absolute, at least nominal damages recoverable for violation of, 168. Risk: voluntary taking of , 131 t, 133, 150, 153—156. Roman Law : of obligations ex delicto, 8, 16. as to efBeot of death of party on rights of action, 66 sqq. on the value of human Hfe, 69 m. noxal actions of, 123. does not make a man liable for inevitable accidents, 124. distinguishes right to personal security from that of property, 178. of possession, 305, 330/, ff. leges acHones in, compared with common law forms of action, 477. theory of culpa in, 479 /. concurrent breach of contract with delict in, 497. on contributory negligence, 533. RtJNNINQ-DOWN CASES, 131, 132, 177. Rtiands v. Fletcheb, the rule in, 438 sqq. 632 INDEX. Scandaithi Magnatum, 220 b. SoiENTEE : doctrine of, as to damage by animals, 461. SoOTLAMU (law of) : as to trespass by parachute, 34 u. gives compensation for damage by death, 61 s, 64. theory of " common employment " forced upon, 89. as to aemulatio vicini, 144. as to protection against dangerous animals, 451 t. Seduction : actions for, 211. what is service for this purpose, 213, 214. damages, 214. Self-defence : right of, 158. assertion of disputed right distinguished from, 160. injuries to third person resulting from, 30, 167. against wrongful assault, 201. Self-Help, 167. And see Abatement, Disteess, Recaption. Sepaeate Peopeett : costs and damages payable out of, 51. trespasser on, 52. whether husband can be indenmiiied from, 52. Seevant : who is, 72. may change master^™ tempore, 74. what is course of service, 76. negligence of, in conduct of master's business, 77. departure from master's business, 78. mistake or excess of authority by, 80. arrest of supposed offender by, 82. acts of, outside his authority, 83. wilful wrongs of, for master's purposes, 84. injuries to, by fellow- servant, 88. injury to, where master interferes in person, 94. custody or possession of, 304, h. conversion by, in master's interest, not excusable, 318. but qu. as to acts done under master's possession and apparent ownership, 321. And see Master and Seevant. Sekvioe : proved or presumed in action for seduction, 213 sqq. of young child, 213. Sheeiff : immunity or liability of, 108. power and duty of, to break doors, &c., in execution of process, 348. remaining unduly long in possession, 355. INDEX. 633 Shcp: master's authority, 114. right of shipowner to refuse services of particular tug, 141. o-sraer's liability, how affected by neglect of statutory regidations, 182. contributory negHgenoe of, 414, 428. rule of Admiralty as to division of damage, 428. duty of owner as to safety of cargo, 465. liability of owner as carrier, 484 t. Shootino : liability for accident ia, 129 sqq. Skill: requirement of, in particular undertakings, 24, 410, 413. Slandes ; injunction to restrain, 178. when actionable, 221. special damage, 222. temporal loss necessary to special damage, 223. imputation of crime, 224. contagious disease, 226. disparagement in oface or business, 227. indirect damage iu business, 229. Slander of Women Act, 1891 . . 225. And see Defamation. Slaotjek of Title, 138, 284. relation of, to ordiaary defamation, 284. nature of damage required to support action of, 284. SCYEEEEGN : foreign, cannot be sued in England for political acts, 102. SoTEBKEaNTT : acts of, how far examinable, 102. Special Damage : involves definite temporal loss, 223. Spoet : hurt received in lawful, 147, 148 o, 150, 200. Spexno-GtUns : authorities on injuries by, 151 z, 162. threat of, useless, 357. Staieoase : when not dangerous, 401, 409. Staud : safety of, guaranteed by contractor, 464. State : acts of, 99. Statute : duties created by, breach of, 23, 24, 180. acts authorized by, 118. caution required in exercise of powers conferred by, 118. Steanqee : has no cause of action on breach of contract, 503. Sunday : statutes for observance of, in United States, 164. SuEQBON : action against, for misfeasance, 479 d. Teleobaph : sending defamatory matter by, 252. conflict between English and American authorities as to rights of receiver of message, 504. P. T T 634 INDEX. Tenants : intimidation of, 217, 217 h. in oommon trespass between, 327. Tenteeden's Act (Loed), 279. qu. how far now operative, 279. Thied Peeson : intervention of, no excuse for negligence, 44 r. injuries resulting to, from self-defence, 30, 158, 160. TnEBBE : waste by cutting, 314. Toet: what is, 1 . actions of (as opposed to contract), 2. wrongs which are not, 3. former criminal character of action for, 3. an exclusively common law term, 3, 4. generic division of, 6. wilful, negligent, or involuntary, 8. from ethical standpoint, 12. general characters of, 19. law of, in three main heads, 22. relations of, to contract, 475 sqq. cases of, whether contract or no contract between same parties, 486. waiver of, for purpose of suing in contract, 488. cause of action in, co-existing with contract, 489. or contract, statutory divisions of actions as "founded on," 521. Teade-Maeks : protection of, 285. Teaitway : nuisance by, 360. Teap: dangers in nature of, 468, 472, 474. set by railway company, 491. Teee : projecting over neighbour's land, 443, 444. Teespass : the least invasion of property is, 9. writ of, 13. liability for consequences of, 34. inevitable accident as excuse for, 122 v sqq. strict archaic theory of, 129. special justification, when proper, 132. injuries to, when actionable or not, 151, 162. necessity as excuse for, 157. damages in action of, 169, 175. actual damage not material in, 171. wanton, 174. aggravated, 175, 176. " merged iu felony, " 185. to foreign land not actionable, 190. by taldng away wife, &c., 210. INDEX. 635 T&^Pisa— continued. or oase, whether action for seduction in, 211 d, 212/. relation of, to larceny, 305, 310, 316. to land or goods, what, 307. relation of, to oonTersion, 305, 312. to laud, by what acts committed, 307. above or under ground, 308. by oattie, 309. to goods, how committed, 310. between tenants in common, 327. owner entitled to immediate possession may sue for, 330, 331. justification or excuse for, 342 sqq. continuing, 346. by necessity, 351. in fox-hunting, 353. ab initio, 353. ab initio cannot arise from nonfeasance, 354. costs in actions for, 356. continuing, restrainable by injunction, 358. distinguished from nuisance, 359 sgg. by cattle, 449. action of, originally penal, 520. Tbesfasseb : not disqualified to sue, 162. effect of delivery by, 333. Teoyee: action of, 312. special action in some cases where trover does not lie, 325. " Tettb Ownee : " meaning of, 293. Tettstee m Bauketjptoy : not bound to prosecute for felony before bringing civil action, 187. Teuth : as justification, 239. Undeesellino : no action maintainable for, 138. UuiTEESiTy: quasi-judicial powers of, 110. Usee: reasonable presumption of , 314. Vehicle : safety of, how far guaranteed by builder, 466. Ventje: old law of, 189. ViCEBOT : local actions against, 101. Vl BT Aemis : what trespass is, 147. YOIATNTAEY TAHNQ OF KlSK : continuing to do work under risk which is incident to the work itseU is, 152. whether plaintiff nolens or volens question of fact, 153. except where risk obvious, 154. relation of negligence of employer to, 154. 636 INDEX. VoLtJNTAET TAxma OF RiSK — continued. consent to particular hazard necessary to constitute, 156. distinction where no negligence, 155. VoLiTNTEEK : in no better plight than servant, 93. Wabbantt : obligation of, on sale for specific purpose, 466 p. implied, of agent's authority, 58 k, 489. Waste: remedies for, 312. what is, 313. reasonable user of tenement is not, 313. by cutting timber, &c., 314. equitable, 315 j/. as between landlord and tenant, 315. Watek : under land, rights of using, 138. responsibility of persons artificially ooUecting, 439. except where storage is a duty, 447. Way; limited right of, 351 q. Whabeinoee : duties of, as regards river bed in his possession, 464. Windows ; alteration in, does not destroy claim to light, 374 sqq. Witness : immunity of words spoken by, 242. WOEDB : cannot be assault, 200. alleged defamatory construction of, 233. repetition of, 231, 235. WoEKMAN : who is, within Employers' Liability Act, 528 x. Weit : of right, 13 I. of debt, 13. of detinue, 13, 15. of deceit, 14 m. of trespass, 14 m. of trespass on the case, 14, 23. Weono-doee : not necessarily disentitled to sue for wrong to himself, 162. Weono-doees : do not forfeit rights of action, 162. joint liability of, 182. contribution between, 183. Weonos : to the person, 7. to property, 7. to person and property, 7. See Tobt. FEINTED BY 0. P. EOWOETH, OEEAT HEW STEEET, EETTEE LANE, E.G. January, 1895. CATALOGUE LAW WORKS PUBLISHED BT STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, LONDON, {And at 14, Bell Yard, Lincoln's Inn). Telegraphic Address— " BHODBONS, London." A Catalogue of Modern Law Works, together with a complete Chronological List of all the English, Irish, and Scotch Reports, an Alphabetical Table of Abbrevia- tions used in reference to Law Reports and Text Books, and an Index of Subjects. Demy 8vo. [100 pages), limp binding. Post free, 6d. Acts of Parliament. — Public and Local Acts from an early date may be had of the Publishers of this Catalogue, who have also on sale the largest collection of Private Acts, relating to Estates, Enclosures, Raihcays, Roads, l^c, 6fc. *„* For Annotated Acts, vide " Statutes." ACTION AT LAW, — Foulkes' Elementary View of the Proceed- ings in an Action in the Supreme Court. — By W. D. I. FouiKES, Esq., Barrister-at-Law. Third Edition. Demy 12nio. 1884. 7s. 6d. ADIVIIRALTY,— Roscoe's Admiralty Practice.— Third Edition. By E. S. RoscoE, Assistant Registrar, Admiralty Court, and T. Lambebt Meaes, Esqrs., Barrister-at-Law. [In preparation. ADULTERATION. — Cripps-Day's Adulteration (Agricultural Fer- tilisers and Feeding Stuffs),— By Feanois H. Ceipps-Day, Esq., Barrister-at-Law. Royal 12mo. 1894. 5s. ADVOCACY, — Harris' Hints on Advocacy,— Conduct of Cases CiTil and Criminal. Classes of Witnesses and Suggestions for Cross- examining them, &o. , &c. By Riohaed Haeeis, one of her Majesty's Counsel. Tenth Edition, with an Index. Royal 12mo. 1893. Is. tid. "Full of good sense and just observation. A very complete Manual of the Advocate's art in Trial by Jury.'* — Solicitora' Journal. "Deserves to be oirefully read by the young baixister 'whose career is yet before him," — Law Magazine, AFFILIATION,— Bolt's Manual of the Law and Practice in Affiliation Proceedings, with Statutes and Eorms, Table of Gesta- tion, Forms of Agreement, &c. By W. Holloway Bott, Solicitor. Demy 12mo. 1894. 6s. •„'• All standard Law Works are kept in Slock, in law calf and other Undinga. STEVENS AND SONS, LIMITED, AGRICULTURAL LAW.— Forster's Manual of the Law relating to Small Agricultural Holdings, with the Small Holdings Act, 1892. By Chaeles D. Foestee, SoUoitor. Demy 12mo. 1892. Net Is. 6d. Spencer's Small Holdings Act, 1892. — With Notes. By Atjbeet J. Spenoee, Esq., Barrister-at-Law, Editor of "Dixon's Law of the Farm." Demy 8vo. 1892. Net 2s. 6rf. ALLOTMENTS,— Hall's Allotments Acts, 1887, with the Regulations issued by the Local Government Board, and Introductory Chapters, Notes, and Forms. By T. Haxl Haxl, Esq., Barrister-at-Law. Author of " The Law of Allotments." Royal 12mo. 1888. 7s. 6ion, Public Companies, Justices, Merchants, Estate Agents, Auctioneer.^, &e., &c. Edited by Edwin Laiman, Esq., Barrister-at- Law ; and contains Tables of Costs in the High Court of Judicature and County Court, &c. ; Monthly Diary of County, Local Government, and Parish Business : Oaths in Supreme Court ; Summary of Sta- tTites of 1894; Alphabetical Index to the Practical Statutes since 1820; Srliedule of Stamp Duties; Legal Time, Interest, Discount, Income, Wages and other Tables ; the New Death Duties ; and a variety of matters of practical utility : together with a complete List of the English Bar, and London and Country Solicitors, with date of admission and appointments. Ptjelished Akntjally. Forty-ninth Issue. Issued in the following foi-ms, octavo size, strongly bound in cloth : — 1. Two days on a page, plain .... . . 5s.0d. 2. The above, inteeleaved for Attendances ..70 3. Two days on a page, ruled, with or without money columns . 5 6 4. The above, with money columns, INTEELEAVED for Attendances . 8 5. Whole page for each day, plain . .... 7 6 6. The above, intebleaved for Attendances . . . .96 7. Whole page for each day, ruled, with or without money columns 8 6 8. The above, rNTEELEAVED for Attendances . . . 10 6 9. Three days on a page, ruled blue Unes, without money columns . 5 The Diary contains memoranda of Legal Business throitgliout the Year. *' Combines everything required for reference in the la-wyer's office." — Law Times. " The amount of information packed within the covers of this well-kno-wn book of ret'erence is almost incredible. In addition to the Diary, it contains nearly SCO paf?es of clo.sely printed matter, none of -which could be omitted without, perhaps, detrartirg- from the usefulness of the book. The publishers seem to have made it their aim to include in the Companion evei-y item of information which the most cxactinf? lawyer could reasonably expect to find in its papes, and it may safely be said that no practising solicitor, who has experienced the luxury of having it at his elbow, will ever be likely to try to do without it."— Law Journal. *»* All standard Law Worlcs are kept in Stock, in law calf and other bindings . B 10 STEVENS AND SONS, LIMITED, DICTIONARY.— The Pocket Law Lexicon,— Explaining Teohnioal Words, Phrases and Maxims of tlie English, Scotch and Koman Law, to which is added a complete List of Law Reports, with their Abbre- viations. Third Edit. By Henry G. Eawson and James E. Remitant, Esqrs., Barrister.s-at-Law. Fcap. 8vo. 1893. 6s. 6d. " A wonderful little legal Dictionary." — Indertnaur's Lain Students^ Journal. Wharton's Law Lexicon. — Eorming an Epitome of the Law of Eng- land, and containing full Explanations of the Technical Terms and Phrases thereof, both Ancient and Modem ; including the various Legal Terms used in Commercial Business. Together with a Trans- lation of the Latin Law Maxims and selected Titles from the Civil, Scotch and Indian Law. Ninth Edition. By J. M. Lelt, Esq., Barrister-at-Law. Super-royal Svo. 1892. 11. 18s. ** On almost every point botli student and practitioner can gather information from this invaluable book, which ought to be in every lawyer's office." — Gtbson^s Law Notes, " One of the first books which every articled clerk and bar student should pro- cure." — Law Students' Journal. DIGESTS. — Campbell's Ruling Cases. — Arranged, Annotated, and Edited by Robeet Campbell, Esq., Barrister- at-Law, Advocate of the Scotch Bar, assisted by other Members of the Bar. With American Notes by lEvma Beowne, formerly Editor of the American Reports. Vols. I. and II. Abandosment — Amendment. Royal 8vo. 1894. Half vellum^ net, each 25s. 1^" Subscribers for Five Volumes in advance will be entitled to them at £1 per Volume. Plan or the Woek. It is intended in this Work to collect and arrange in alphabetical order of subjects all the useful authorities of English Case Law from the earliest period to the present time on points of general appUcation. The matter under each alphabetical heading is arranged in sections, in an order indicated at the commencement of the heading. The more im- portant and Ruling Cases are set forth at length, subject only to abridg- ment where the original report is unnecessarily diffuse. The effect of the less important or subordinate cases is stated briefly in the Notes. The aim of the Work is to furnish the practitioner with English Case Law in such a form that he will readily find the information he requires for ordinary purposes. The Ruling Case will inform him, or refresh his memory, as to the principles ; and the Notes wiU show in detail how the principles have been applied or modified in other cases. The American Notes, by Mr. Ieving Beowne, are intended primarily for American use ; but it is also considered that, particularly on some points which have been much discussed in American cases, they may be of considerable value to practitioners here and in the Colonies. Each volume of the Work will contain an Alphabetical Table of Cases reported or referred to ; and when the Work is complete there wiH be a General Index of Subjects as well as a Table of Cases for the whole. It is estimated that the Work will be carried out in about 25 Volumes (of about 800 pages each), and issued at the rate of 5 volumes per annum. I^y An Annual Addendum will be issued, containing, under the appropriate title and rule, Notes of Cases published since the issue of Volume I,, thus bringing all the Volumes then published up to date. " The general scheme appears to be excellent, and its execution reflects the greatest credit on everybody concerned. It may, indeed, be said to constitute, for the present, the high-water mark of the science of book making," — Saturday Review, July 21, 1894. *,* All standard Law Works are kept in Stock, in law calf and other iindinga. o 119 & 120, CHANCERY LANE, LONDON, W.C. 11 DIG ESTS — continued. Chitty's Index to all the Reported Cases decided in the several Courts of Equity iu England, the Privy Council, and the House of Lords, with a selection of Irish Cases. Fourth Edition. By Henet En-WAitD HiEST, Esq., Barrister-at-Law. 9 vols. Roy. ■=« 8vo. 1883-89. (PubKshed at 121. 12s.) Seduced to net, 51. 6a. g *»* The volumes sold separately. Haeh net, 15s. "A work indispensable to every bookcase in Lincoln's Inn." — Law Quarterly g Hevieta. rt "The practitioner can hardly afford to do without such a weapon as Mr. Hirst ^ supplies, because if he does not use it probably his opponent will.''— Xawj Journal. I— I o >■ Dale and Lehmann's Digest of Cases, Overruled, Not Followed, QO Disapproved, Approved, Distinguished, Commented on and "^ specially considered in the English Courts from the Year S 1756tol886 inclusive, and acompletelndexof theCases, invyhioh tg are included all Cas6a reversed from the year 1856. By Chas. Wm. g MiTCAiFE Dale, and Rudolf Chambees Lehmahn, assisted by Chas. o H. L. Neish, and Heebeet H. Child, Esqrs., Barristers-at-Law. Royal 8vo. 1887. (Published at 21. 10s.) Meduced to net, 26s. 01 "g '* One of the best works of reference to be foimd in any library." — Law Times. ffl "The book is divided into two parts, the first consisting of an alphabetical index 3 of the cases containedin the Digest presented in a tabular form, showing at a glance p how, where, and by what judges they have been considered. The second portion of the book comprises the Digest itself, and bears marks of the great labour and g research bestowed upon it by the compilers." — Law Journal. o 5 Fisher's Digest of the Reported Decisions of the Courts of Quarterly Semew. " Seton in its new guise is well up to the character which it has for so many years sustained of beina- the be.«t book of forms of judgment." — Law Times. Smith's Manual of Equity Jurisprudence. — A Manual of Equity Jurisprudence for Practitioners and Students, founded on the Works of Story, Spence, and other wiiters, comprising the Fundamental Principles and the points of Equity usually occurring in General Practice. By Josiah "W. Smith, Q.C. Fourteenth Edition. By J. Teusteam, LL.M., Esq., Barrister-at-Law. 12mo. 1889. 12s. 6d. Smith's Practical Exposition of the Principles of Equity, illus- trated by the Leading Decisions thereon. For the use of Students and Practitioners. Second Edition. By H, Abthtje Smith, M,A,, LL.B., Esq., Barrister-at-Law. Demy 8vo. 1888. 21s. " This excellent practical exposition of the principles of equity is a work one can well recommend to students either for the bar or the examinations of the Incorporated Law Society. It wUl also be found equally valuable to the busy prac- titioner. It contains a mass of information well arranged, and is illustrated by aU the leading decisions."- Xaic Times. *»* AU Standard Law TFor^s are kept in StocTc, in law calf and other bindings, 14 STEVENS AND SONS, LIMITED, ESTOPPEL.— Everest and Strode's Law of Estoppel, By Lancelot ErELDiNQ Eteeest, and Edmund Strode, Esqrs., BarriBters-at-Law. Demy 8vo. 1884. 18s. EVIDENCE. — Wills' Theory and Practice of the Law of Evidence. — By Wm. Wills, Esq., Barrister-at-Law. Deni.y8vo. 1894. 10s. 6d. "We consider that Mr. Wills has given the profession a useful book on a difficult subject." — Law Notes. EXAMINATION GUIDES.— Bedford's Digest of the Preliminary Examination Questions, with the Answers. Second Edition. 8to. 1882. 185. Haynes and Nelham's Honours Examination Digest, comprising all the Questions asked at the SoUcitors' Honours Examinations, with Answers thereto. By John E. Haynes, LL.D., and Thomas A. Nelham, Solicitor (Honours). Demy 8vo. 1883. 15s. Napier & Stephenson's Digest of the Subjects of Probate, Divorce Bankruptcy, Admiralty, Ecclesiastical and Criminal Law necessary to be known for the Final Examination, done into Questions and Answers. ByT. Bateman Napiee and Richael M. Stephenson, Esqrs., Barristers-at-Law. Demy 8vo. 1888. 12s. Napier & Stephenson's Digest of the Leading Points in the Sub- ject of Criminal Law necessary to be known for Bar and University Law Examinations. Done into Questions and Answers. By T. Bateman Napiee and Richaed M. Stephenson, Esqrs., Barristers- at-Law. Demy 8vo. 1888. Ss. Shearwood's Guide for Candidates for the Professions of Barrister and Solicitor. — Second Edition. By Joseph A. Sheae- WOOD, Esq., Barrister-at-Law. Demy Bvo. 1887. 6s, " A practical little book for students." — Law Quarterly Review. Uttley's How to Become a Solicitor; or, Hints for Articled Clerks, — Showing the necessary steps for getting Articled, passing the Examinations, obtaining Admission, taking out Certificate to Practise ; Hints on Reading, Tables of Cases, Statutes and Books ; Articled Clerks in the Law Courts : Notes of recent Cases affecting them ; with Appendix, comprising many useful Eorms and all the Questions set at all the Examinations of 1893. By T. E. TJttlet, SoUoitor. Royal 12mo. 1894. 5s. EXECUTIONS, — Edwards' Law of Execution upon Judgments and Orders of the Chancery and Queen's Bench Divisions of the High Court of Justice, — By C. Johnston Edwaeds, Esq., Barrister-at-Law. Demy 8vo. 1888. 16s. EXECUTORS, — Macaskie's Treatise on the Law of Executors and Administrators, and of the Administration of the Estates of Deceased Persons. With an Appendix of Statutes and Eorms. By S. C. Maoaskie, Esq., Barrister-at-Law. 8vo. 1881. 10s. Gd. Williams' Law of Executors and Administrators. — Ninth Edition. By the Hon. Sir Roland Vatjghan Williams, a Justice of the High Court. 2 vols. Roy. 8vo. 1893. 31 Ws. " "We can conscientiously say that the present edition -will not only sustain, but enhance the high reputation which the book has always enjoyed. The want of a new edition has been distinctly felt for some time, and in this work, and in this work only, will the practitioner now find the entire law relating" to executors and administrators treated in an exhaustive and authoritative fashion, and thoroughly brought down to the present date."— iaw Jommal. *j,* Ail standard Law Works are Icept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W-O. 15 EXTRADITION,— Kirchner's L'Extradition,— EeoueilKenfermantin Extenso tous les TraitSa oonolus jusqu'au ler Janvier, 1883, entre lea Nations oivilisees, et donnant la solution precise des diffioultes qui peuvent surgir dans leur application. Avec une Preface de M" Geob&es Laghaud, Avocat a la Cour d'Appel de Paris. Public sous les auspices de M. 0. E. Howakd Vincbht, Direoteur des AfBaires CrimineUes de la Police Metropolitaine de Londres. Par T. J. Ktechnee, Attache h. la Direction des Affaires CrimineUes. In 1 vol. (1150 pp.). Royal 8vo. 1883. 21. 2s. FARM, LAW OF, — Dixon's Law of the Farm: including the Cases and Statutes relating to the subject ; and the Agricultural Customs of England and "Wales ; together with the Small Holdings Act, 1892. Eifth Edition. By Aubeey J. Spbnoee, Esq., Barrister-at-Law. Demy 8vo. 1892. 26s. *' The book is "well and carefully edited." — Law Journal. " A complete modem compendium on agricultural matters." — Law Times. FIXTURES, — Amos and Ferard on the Law of Fixtures and other Property partaking both of a Real and Personal Nature. Third Edition. By C. A. Eerabd andW. Howlaud Robeets, Esqrs., Bar- risters-at-Law. Demy 8vo. 1883. 18». *' An accurate and ■well ■written work." — Saturday Reuimv. ' FORMS,— Archibald,— Fiirf« " Chamber Practice." Bullen and Leake. — Fiffo " Pleading." Chitty's Forms of Practical Proceedings in the Queen's Bench Division ofthe High Court of Justice. Twelfth Edition. ByT. W. Chiity, Esq., Barrister-at-Law. Demy 8vo. 1883. (Published at \l. 18«.) Reduced to net 20s. " Brief and dear, and the notes accurate aad to the point." — Law Journal. Daniell's Forms and Precedents of Proceedings in the Chan- cery Division of the High Court of Justice and on Appeal therefrom, — Fourth Edition, with Summaries of the Rules of the Supreme Court, Practical Notes and References to the Sixth Edition of "Daniell'sChancery Practice." By Charles Btjenet, B.A. (Oxon.), aChief Clerk of the Hon. Mr. Justice Chitty. Royal 8vo. 1885. 2?. 10s. " The standard work on Chancery Procedure."— iato Quarterly Bemew. FRAUD AND MISREPRESENTATION.— Moncreiff's Treatise on the Law relating to Fraud and Misrepresentation.— By the Hon. F. MoNCKEUT, Barrister-at-Law. 8vo. 1891. 21s. GOODWILL.— Allan's Law relating to Goodwill,— By Chaeles E. Ai;LAN,M.A.,LL.B., Esq., Barrister-at-Law. DemySvo. 1889. 7s. 6d. *' A work of much value." — Solicitors* Journal. HIGHWAYS,— Bazalgette and Humphreys,— Fit^e "Local and Municipal Government." Chambers' Law relating to Highways and Bridges, being the Statutes in full and brief Notes of 700 Leading Cases. By GsoEaE F. Ohambees, Esq., Barrister-at-Law. 1878. 7s. 6d. HOUSE OF LORDS SCOTCH APPEALS,— Paterson's Reports of Scotch Appeals in the House of Lords, a.d. 1851 to 1873. By.J.PATEESON, Esq., Barrister-at-Law. 2 vols. Roy. 8vo. 5?. 5s. HOUSE TAX,— Ellis' Guide to the House Tax Acts, for the use of the Payer of Inhabited House Duty in England,— By Aethub M. Ems, LL.B. (Lond.), Solicitor, Author of "A Guide to the Income Tax Acts." Royal 12mo. 1885. 6s. " We have found the information accurate, complete and very clearly ex- pressed." — Solicitors' Journal. * * All stmdard Law Works we Icept in StocJe, in law calf and other bindings. 16 STEVENS AND SONS, LIMITED, HUSBAND AND WIFE— Lush's Law of Husband and Wife; within the Jurisdiction of the Queen's Bench and Chancery Divisions. By C. Montague Lush, Esq., Barrister-at-Law. 8vo. 1884. 20*. INCOME TAX.— Ellis' Guide to the Income Tax Acts.— Eor the use of the Eng-lish Income Tax Payer. Third Edition. By Aethue M. Ellis, LL.B. (Lond.), Solicitor. Eoyal 12mo. 1893. 7s. 6d. " Contains in a convenient form the law bearing upon the Income Tax." — Law Time.'!. INLAND REVENUE CASES.— Highmore's Summary Proceed- ings in Inland Revenue Cases in England and Wales, — Second Edition. By N. J. Highmoee, Esq., Barrister-at-Lair, and of the Solicitors' Department, Inland Revenue. Hoy. 12mo. 1837. Is.&d. INSURANCE, — Arnould on the Law of Marine Insurance,— Sixth Edition. By David Maclachlan, Esq., Barrieter-at-La-sv. 2 vols. Royal 8vo. 1887. 3?. "As a text book, 'Ai'nould'is now all the practitioner can want." — Law Times. Lowndes' Practical Treatise on the Law of Marine Insurance. — By RiCHABD Lowndes. .Author of ' ' The Law of General Average, ' ' &c. Third Edition. By "Waltee Lowndes. (In prepnration.) McArthur on the Contract of Marine Insurance, — Second Edition. By Chahles MoAethue, Average Adjuster. Demy 8vo. 1890. 16s. *' The work is carefully executed and brought down to date." — Law Journal. Tyser's Law rejatingto Losses under a Policy of Marine Insur- ance, — By Chakles Robert Tysee, Esq., Barrister-at-Law. Demy 8vo. 1894. 10.S. 6f;. " A clear, correct, full, and yet concise statement of the law." — J^aw Times. " " The substantive part of the book is systematically arranged and clearly stated." — Law Journal. INTERNATIONAL LAW,— Hall's International Law.— Third Edit. Demy 8vo. 1890. H. 2s. Qd. Hall's Treatise on the Foreign Powers and Jurisdiction of the British Crown. By "W. E. Hall, Esq., Barrister-at-Law. Demy 8vo. 1894. 10s. 6d. Kent's International Law, — Kent's Commentary on International Law. Edited by J. T. Abdt, LL.D., late Judge of County Courts. Second Edition. Crown 8vo. 1878. 10s. 6(Z. Nelson's Private International Law. — Selected Cases, Statutes, and Orders illustrative of the Principles of Private International Law as Administered in England, with Commentary. By Hoeace Nelson, M.A., B.C.L., Barrister-at-Law. Roy. Svo. 1889. 21s. " The notes are full of matter, and avoid the vice of discursiveness, cases being cited for practically eveiy proposition." — Law Times. Twiss's Law of Nations considered as Independent Political Communities. — By Sir Teavees Twiss, D.C.L. Parti.: On the Rights and Duties of Nations in Time of Peace. New Edition. Revised and Enlarged. Svo. 1884. Lis. Walker's Science of International Law. — By T. A. 'WalkhEi M.A., LL.M., Esq., Barrister-at-Law. Demy Svo. 1893. 18s. Westlake's International Law, — Chapters on the Principles of Inter- national Law. By J. "Westlaee, Q.C, LL.D., Whewell Professor of International Law in the University of Cambridge, &o. Demy Svo. 1894. 10s. Wheaton's Elements of International Law; Third English Edition. Edited with Notes and Appendix of Statutes and 'Treaties. By A. C. BoTD, Esq., Barrister-at-Law. Royal Svo. 1889. 11. IDs. " Wbeaton stands too high for criticism, whilst Mr. Boyd's meiits as an editor are almost as well estabhshed." — Law Times. *(t* All stcfn4(ii^d lam Works are Iiipi in Stoolc, in law calf and other bindings, 120, CHANCERY LANE, LONDON, W.C. 17 JOINT STOCKS.— Palmer.— riie completed in about 25 Volumes. Frospectus on applieation. Castle's Law and Practice of Rating. — Third Edition. By E. J. Castle, Esq., Q.C. [In the press.) Chitty's Statutes of Practical Utility.— Fifth Edition. ByJ. M.Lelt, Esq., Barrister-at-La"w. To be completed in about 12 Volumes. (Vol. V. nearly ready.) d'Eyncourt's Employers' Liability. — Position of Workmen and Pro- cedure in Actions. By E. Tennyson d'ETNconET, Esq., Barrister-at- Law. [In preparation.) Dicey's Confl let of Laws. — Incorporating the Second Edition of the Law of Domicil. By A. V. Dioet, Esq., Q.C, B.C.L. [In preparation.) Hume-Williams and Wlaoklin's Taking of Evidence on Commis- sion. — By "W. E. HuME-WiLLiAins and A. B. Komee Mackldst, Esqrs., Barristers-at-Law. [Nearly ready.) Lowndes' Practical Treatise on the Law of Marine Insurance. — Third Edition. By Waltee Lowndes, Esq. [In preparation.) Macdonell's Lawof Master and Servant. — Second Ed. ByJoHNMAc- EONELL, LL.D.,Esq., aMasterof the Supreme Court. [In preparation.) Odgers' Digest of the Law of Libel and Slander.— Third Edition. By W. Blake Odhees, Esq., LL.D., Q.C. [In preparation.) Phillimore's Ecclesiastical Law of the Church of England.— Second Edition. Edited by Sir Waltee Geo. Eeank Phlllimoee, Bart., D.C.L., Chancellor of the Diocese of Lincoln. [In ihe press.) Pollock's Law of Torts. — Eourth Edition. By Sir Eeedeeiok Pollock, Bart., Barrister-at-Law. [Nearly ready.) Pollock and Maitland's History of English Law. — By Sir Feedeeick Pollock, Bart., and Feedeeio William Maitland, Esq., Barristers- at-Law. [In thepress.) Prideaux's Precedents In Conveyancing. — With Dissertations on its Law and Practice. Sixteenth Edition. By John Whitcombe, Esq., Barrister-at-Law. 2 vols. Eoyal 8to. [In the press.) R-attigan's Private International Law. — By W. H. EATTiQAir, Esq. , Barrister-at-Law. [In thepress.) Robbins' Treatise on the Law of Mortgage. — By L. G-. Goedon EoBBiNS, Esq., Barrister-at-Law. (Founded on Coote's "Law of Mortgage.") [In preparation.) Robinson's Income Tax Acts. — By Aethue Robinson, Esq., Barrister- at-Law. [In the press.) Russell on Crimes and Misdemeanors. — Sixth Edition. ByHoEACE Smith, Esq. , Metropolitan Magistrate. [In thepress.) Steer's Parish Law.— Sixth Edition. By W. H. Maonamaea, Esq., Barrister-at-Law. [In preparation.) Temperley's Merchant Shipping Act, 1894, with Copious Notes and Full Index. — By Eobeet Tembeelet, Esq., Barrister-at-Law. [In thepress.) Wurlzburg's Law Relating to Building Societies. — Third Edition. By E. A. Wubtzbubs, Esq., Barrister-at-Law. [I n preparation.) STEVENS AND SONS, Ld., 119 & 120, CHANCEEY LANE, LONDON. VALUABLE LAW WORKS PUBLISHED EY 1 LIMITED, 119 & 120, CHANCERY LANE, LONDON, \¥.C. OCTOBJBiE,, 1894=. Pollock's Principles of Contract. — Sixth JEdifion. By Sir FREDERICK POLLOCK, Bart., Barrister-at-Law, Author of " The Law of Torts," &c. Uaiiijieo. 1894. I'licc'iSs. I'hi/i. Freeth's Gruide to the New Death Duty chargeable under Part I. of tlie Finance Act, 1894. With an Introduction and an Appendix containing the Act and the Forms issued for use under it. By EVELYN FEEBTH, Deputy- Controller of Legacy and Succession Duties, and Joint Editor of ■' Trevor's Taxes on Succession.'* JJcmy^vo, 1894. Frice~ts.Qd. cloth. j ', Lathom's Licensing Acts. — A Handy G-uide to the Licensing Acts. With 'Introduction. By H. W. LATHOM, Solicitor, lioijal Vhno. 1394. JPrice 5s. cloth. Cripps-Day's Adulteration (Agricultural Fertilisers aud Feeding stuffs).— By F. H. CBIPPS-DAY, Barrister-at-Law. lioijalVlino. 1S94 Price ds. cloth. Lightwood s Treatise on Possession of Land, with :i C" iipter on the Bi-al Property Limitation Acts, 1833 and 1874. By JOHN M. LKx '1 i'W'UOD, Barrister-at-Law. Demy Sro. 1894. Trice Ids. cloth. Mather's Compendium of Sheriff Law.— By Puilit' E. iViATHl.R, SoliciLOr and Notary, formerly Under -Sheriff of Newcasi!"-iu-Tyne. Jioi/fil 8. .1. 1894. J'rice 2.5s. cloth. Williams' L^^'^ of Executors and Administratoi : -A'.'nt/i Mition. ] y the Hon. Sir KOLAND L. VAUGHAN WILLIA:!.^, a Tublice of the ^ High Court. " "'»'■ . lUm. Sra. 1893. Pr'ce 31. 16,-. cloth. " We can conscientiously say that Jie present edition v-nil not on' ,' susLain, but ei . mc tlie high reputation which the bo"k Jias -Liway^ enjoyed, Tlie want of a new edition h-'--j been 'li^r,ir ■liy fi^lt for some time, and in this work, and hi tins work only, will the practitioner r;ow la' ' th ^ entire In vv i."Ki,ting to executors and administrators tieafed in an exhaustive and aui horitative t::.shion, anj ihoi- J^hly brought down to the present date." — Law Journal. Williams' Law and Practice in Bankruptcy.- -n^ tJie Hon. SIB ROLAND L. VAUGHAN WILLIAMS, one of the .'■.- t^,- =" ..f Her Majesty's High Court of Justice. Sixth Mditioii. By EDWARD vr:,!. . ' ,N;