(Jorn^ll Slam ^rljnnl SItbtary 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019221732 
 
THE 
 
 ELEMENTS OF TOETS 
 
 BTZ .^^<a_e- 
 
 cSr- 
 
 <o 
 
 <1 
 
 THOMAS M. COOLEY, LL.D. 
 
 CHICAGO 
 CALLAGHAN AlTD COMPANY 
 
 1895 
 
Copyright, 1895, 
 
 BY 
 
 CALLAGHAN AND COMPANY. 
 
 STATE JOUBNAL PRINTING COMPANY, 
 
 PBIHTBRS iHn ST^BBOTYPSRa, 
 lUDISOH, WIS. 
 
PREFACE. 
 
 The treatise whicli follows has been prepared primarily for 
 the use of students at law and instructors in law schools. The 
 design has been to present succinctly the elements of the law 
 of Torts. 
 
 A word in justification of the title may appropriately be 
 added in view of the fact that it has been supposed the same 
 subjects may be treated under the title " Non-Contract Law." 
 But the author in this instance, as in the preparation of his 
 larger treatise upon the law of Torts, has given that subject 
 such considerjEition as its importance deserves. 
 
 An appropriate title is important, inasmuch as it generally 
 marks the author's point of view. An erroneous point of view 
 may, and frequently does, obscure a dear and perfect view of 
 the subject under contemplation. 
 
 ITon-Contract Law fits very appropriately the idea expresed, 
 in some quarters that torts arise independent, of contract ; but 
 while torts may arise independently of contract relations, they 
 very frequently arise in connection with a contract relation. 
 Indeed the whole law of election of remedies is based upon 
 the proposition that under some circumstances the contract 
 may be waived, and the transaction treated as a tort, or the 
 tort be waived and the transaction treated as a contract. The 
 case of Rich v. The New York Ceni/ral c& Hudson Bwer Bail- 
 road Co., 87 K Y. 382, is a most interesting case upon this 
 subject. 
 
 Students of American law should bear in mind the deriva- 
 tion of many of the titles of our law. This word Tort is not 
 strictly of English origin: it expresses an idea not exactly 
 
r 
 iv PEEFACE, 
 
 commensurate with the Koman idea of deKcts. To the Eng- 
 lish lawyer it conveys a distinct and definite idea. It is 
 of Iforman-French origin, and like the word Chose does not 
 find a counterpart anywhere else. So the word Tort has 
 become a part of the nomenclature of Anglo-American law, 
 and should not be discarded unless for a better reason than 
 has been suggested. 
 
 Liberal use has been made of the text of the author's 
 larger work upon the same subject, but pains have been taken 
 to revise, transpose and arrange the matter in such a manner 
 as to make the law of Torts as easily comprehensible to the 
 student as possible. The citation of authority has not been 
 confined to such cases as are cited in the other work, and 
 great care has been taken in the selection of cases cited. 
 
 The author desires to acknowledge the valuable assistance 
 of Mr. Arthur Percival "Will, to whom, has been intrusted the 
 annotation and who has assisted throughout the work. 
 
 THOMAS M. COOLEr. 
 
TABLE OF CONTENTS. 
 
 CHAPTER L 
 EIGHTS AND WEONQS AS KNOWN TO THE LAW. 
 
 Page. 
 
 Preliminary remarks . 1 ' 
 
 Classification of wrong^ 1 
 
 Definition of torts 3 
 
 Bights defined 3 
 
 Natural liberty 3 
 
 Public wrongs 4 
 
 Wrongs to aggregate bodies 4 
 
 Civil Uberty defined 4 
 
 Political liberty defined 5 
 
 Growth of rights 5 
 
 Judicial legislation 5 
 
 What is comprehended in the common law .... 6 
 
 Ubijusibiremedium, 6,7 
 
 Classification of remedies 7 
 
 Preventive remedies 7 
 
 Compensatory remedies 7 
 
 CHAPTER IL 
 
 GENEEAL CLASSIFICATION OP LEGAL EIGHTS. 
 
 Rights in general 8 
 
 All governments recognize rights which have for their ob- 
 ject: 
 
 1, Security in person 8 
 
 8. Security in property ....... 8 
 
 3. Security in family relations 8 
 
 Personal rights 8 
 
 The right to life 8,9 
 
 Personal immunity 9 
 
 Right to reputation 9, 10 
 
 Civil rights in general 10 
 
 Religious liberty 10, 11 
 
 Equality of civil rights 11 
 
 Political rights 13 
 
VI TABLE OF CONTENTS. 
 
 Page. 
 
 Family rights 12 
 
 The husband entitled to society of wife . . • . . 13 
 The parent entitled to custody and services of child . . 12, 13 
 
 Duty of parent to support child 13 
 
 Duty of parent to protect child 13 
 
 The right to form the family relation . . . . 13 
 
 Other relations — Master and servant, etc. . ... 14 
 
 Family as such has no legal rights 14 
 
 Taking away rights 15 
 
 CHAPTER UL 
 
 THE KEIMEDIKS POK CITIL INJTTEIIB. 
 
 Redress by a party's own act 16 
 
 Abatement of nuisance 16 
 
 Self-defense 17 
 
 Recaption of property 17 
 
 Commingling of goods 17 
 
 Property by accession 18 
 
 Entry to repossess lands 18 
 
 Distress of cattle damage feasant 18 
 
 Distress of goods 19 
 
 Nature of redress by law 19 
 
 How one becomes a wrong-doer 19 
 
 Elements of a tort SO 
 
 Maxim de minimis non curat lex does not apply ... 20 
 
 A wrongful act 20 
 
 Damages 30 
 
 Proximate cause 20, 31, 23 
 
 Damnum absque injuria 23 
 
 Crimes and torts distinguished 23 
 
 The same act may be a private injury and a public offense 23 
 
 Accidental injuries ........ 23 
 
 Public prosecution does not supersede private action . 24 
 
 Contracts and torts 25 
 
 Waiver of tort 25, 26 
 
 Torts by relation 26 
 
 CHAPTER IV. 
 
 liEGAL KESPONSIBILITY FOR TOETS. 
 
 Rules of responsibility upon contrapts 27 
 
 Rules of criminal responsibility 27 
 
 Rules of responsibility for torts 27 et seq. 
 
 Responsibility of lunatics 28 
 
 and of infants 29 
 
 illustrations 30 
 
 as to the doctrine respondeat superior , 31 
 
 intoxicated persons .... 31 
 
TABLE OF CONTENTS. Vll 
 
 Rules of responsibility for torts — continued. Page. 
 
 Responsibility of one under duress 31 
 
 married women 31 
 
 common-law rules modified by statutes 32, 33 
 
 Association in tortious acts 33 
 
 Partnerships 33 
 
 Mobs .1 33 
 
 Private corporations 34 
 
 Public corporations 35 
 
 CHAPTER V. 
 
 WBONGIS IN WHICH TWO OS MORE MAY PARTICIPATE. 
 
 Individual wrongs and joint wrongs 36 
 
 Conspiracy . . • 30 
 
 Mere approval of a wrong does not make one a legal participant 37 
 
 Ratification of a wrong 37 
 
 Responsibility of — 
 
 parties to suit 37 
 
 attorneys 38 
 
 officers 38 
 
 Extent of joint liability 38 
 
 For wrongs intended '. . 38, 39 
 
 Responsibility cannot be apportioned 39 
 
 Judgment against one does not bar further suit ... 39 
 
 For wrongs not purposely done 40 
 
 The undertaking of a carrier 40 
 
 The responsibility of officer for acts of deputy . . 41 
 
 Negligence always unlawful 41 
 
 Contribution between wrong-doers 43 
 
 Indemnity may sometimes be demanded .... 43 
 
 The rule as to partnerships, eta 44 
 
 Injury sustained in wrong-doing not a ground of action . . 45 
 
 Illustrations: one injured while traveling on Sunday . 45 
 
 one injured while laboring on Sunday . 45 
 
 one injured in an unlawful encounter, etc, . 46 
 
 CHAPTER VL 
 
 WRONGS AFFECTING PERSONAL SECURITY. 
 
 Assaults and batteries .... 
 Definition of an assault, and illustrations 
 Definition of a battery, and illustrations 
 Effect of assent upon responsibility . 
 . When deception is an equivalent of force 
 
 Intent 
 
 Accidental injuiies not batteries . 
 B 
 
 47 et seq. 
 47 
 47,48 
 48 
 48 
 48 
 48 
 
vm 
 
 TABLE OF CONTENTS. 
 
 Assaults and batteries — continued. 
 
 Self-protection 
 
 In defense of — 
 
 life or limb ....•• 
 
 female chastity 
 
 the reputation of females 
 
 one's family 
 
 One's property 
 
 False imprisonment 
 
 Definition and illustrations .... 
 
 Justification by relations of parties . 
 Restraints under legal process .... 
 
 When process void 
 
 Arrests without warrant 
 
 What will justify . , . . . . 
 
 Restraint of insane persons 
 
 Malicious prosecution 
 
 When the action will lie .... . 
 
 Probable cause ' . 
 
 Mere belief not sufficient .... 
 Must have existed at time of the action 
 Advice of counsel a material fact 
 Want of probable cause will not be presumed . 
 Malice — Burden of proof upon the plaintiff . 
 
 How made out 
 
 The prosecution must have ended 
 
 Discontinuance on a compromise not sufficient 
 Civil proceedings . . . 
 
 Action will lie for abuse of legal process . 
 
 Illustrations 
 
 Service of his own process by an officer is a ntillity 
 Arrest of privileged persons .... 
 
 50 
 
 63 
 
 49 
 
 49 
 49 
 49 
 50 
 
 49,50 
 et seq. 
 50. 
 
 50,51 
 51 
 53 
 52 
 52 
 53 
 et seq. 
 
 53,54 
 54 
 64 
 54 
 54 
 55 
 55 
 55 
 55 
 55 
 66 
 56 
 
 56,57 
 57 
 57 
 
 CHAPTER VIL 
 
 SLANDER AND LIBEL, 
 
 Definitions— 
 Slander . 
 Libel . 
 Defamation . 
 Publication 
 What is 
 How made . 
 
 Implies volition and wrongful intent 
 Words actionable per se 
 
 Classification of libelous charges 
 Words imputing an indictable offense 
 
 As to an act involving moral tiu^itude 
 Charge must be taken in its entirety . 
 The disgrace of the scandal constitutes the injiuy 
 
 58 
 58 
 58 
 58 
 58 
 58,59 
 59 
 69 
 60 
 60 
 61 
 61 
 03 
 
TABLE OF CONTENTS. IX 
 
 Words actionable per se — continvM. Page. 
 
 ■ Words imputing contagious diseases 63 
 
 Diseases originating in vile practices .... 62 
 Must impute present existence of disease ... 63 
 Words damaging as respects office or profession . . 63 
 Party must be at time in exercise of the office or pro- 
 fession 63 
 
 Words prejudicial to a party in business .... 63 
 
 Must afEect tbe party in his business .... 63 
 
 Exaggeration in advertising excused .... 63 
 
 Words not actionable jper se 64 
 
 Libel and slander distinguished 64 
 
 Greater liberty allowed in speech than in writing . . 6-1 
 
 Seasons for this 64, 65 
 
 Truth as a defense 66 
 
 Honest belief in truth of charge no excuse ... 6G 
 
 Language to be taken in its natural sense .■ . . . 66 
 
 Malice as an element 67 
 
 Not used here in the ordinary sense 67 
 
 When actual maUce essential 67 
 
 Privilege 68 
 
 Cases of absolute privilege 68 
 
 Extends to judges, jurors, etc 68 
 
 pertinent matter in pleadings ... 69 
 
 legislators 69 
 
 head of the government .... 69 
 
 Cases conditionally privileged ....... 70 
 
 Petitions 70 
 
 Official communications 70 
 
 Confidential communications ..... 71 
 
 Beports of commercial agencies 71, 73 
 
 Liberty of the press 73-74 
 
 Eepetition of defamatory publications .... 74 
 
 Slander of property 75 
 
 Slander of title 75, 76 
 
 CHAPTER VHL 
 
 INJUKIES TO FAMILY BIGHTS. 
 
 The family as an entity "<' 
 
 Wrongs to the husband 77 
 
 Injury to wife's property 77 
 
 Seduction or enticement of wife 78 
 
 Considerations iniluenoing damages .... 78 
 Extent of injury dependent upon previous relations of 
 
 spouses 'S 
 
 Wrongful Interference with family affairs .... 79 
 
X TABLE OF CONTENTS, 
 
 Page. 
 
 Wrongs to the wife .......... 79 
 
 Injuries to wife's person ,. 79 
 
 Meaning of "service" • . 80 
 
 Who may maintain the action 80 
 
 Effect of married women's property acts . . . SO, 81 
 
 Actions by wife for alienation of husband's affections . 81 
 
 Parent and child 81 
 
 Abductton of child 83 
 
 What constitutes enticement ..... 83 
 
 !E!nticemeat and marriage of minor daughter ... 83 
 
 Seduction 83 
 
 The ground of recovery 83 
 
 Who can maintain the action . . . . 83, 84, 95, 96 
 
 English rule 84 
 
 American rule 84 
 
 Time when cause of action accrues, and nature of rem- 
 edy . . '. ^ 84 
 
 Pregnancy not essential 85 
 
 Measure of damages 85 
 
 Action by child for wrongs sustained in that relation . . 86 
 
 Action by guardian ......... 86 
 
 Loss of marriage 86 
 
 Requisites for forming the relation 86 
 
 Action for false charges 87 
 
 Age of consent . . . . , 87 
 
 Fraudulent marriage 87 
 
 Grounds for annulling for fraud 87, 88 
 
 Burial rights 88 
 
 Who is entitled to the control of bodies of the dead . . 88 
 
 Injuries to monuments 89 
 
 Exemption laws . . , 89 
 
 Master and servant 89 
 
 Injuries from the use of intoxicating liquors .... 89 
 
 Provisions of statutes giving remedy for ... . 89 
 
 Illinois statute 00 
 
 Such statutes to be construed strictly .... 91 
 
 Damages recoverable gj 
 
 When death results 93 
 
 Necessity of notice to defendant 93 
 
 Actions for causing death by wrongful act .... 03 
 
 No remedy at common law ...... 93 
 
 Lord Campbell's Act 93 
 
 Legislation in America 93 
 
 Where the action can be maintained 93 94 
 
 The remedy is local 9^ 
 
 Various decisions 9^ 
 
 The defendant 95 
 
 The plaintiff gg 
 
 Provisions of various statutes 95 96 
 
TABLE OF CONTENTS. 
 
 XI 
 
 Actions for causing death by wrongful act — continued. Page. 
 
 The beneficiaries 98 
 
 Nature of the wrongf\il act 96 
 
 Must have been the proximate cause .... 96 
 
 The damages 97 
 
 The English rule 97 
 
 Under statutes in America 97 
 
 Exemplary damages 97 
 
 Standard for estimating 97 
 
 Statutes generally fix a maximum of recovery . . 98 
 
 CHAPTER IX 
 
 ■WRONGS RESPECTING CIVIL AND POLITICAL RIGHTS. 
 
 Civil rights 99 
 
 State regulation of emplOTmenta 99 
 
 No exclusion from lawful employments .... 99 
 Certain exceptions on acpount of — 
 
 Character of the persons , 100 
 
 Nature of the business 100 
 
 Right to form business relations 100 
 
 Interference with this right by conspiracy .... 101 
 
 Definition of conspiracy 101 
 
 Acts constituting conspiracy 103 
 
 Right to be carried by common carriers 102 
 
 Discriminations by carriers 103, 103 
 
 Regulation of his business by the Carrier .... 103 
 
 Power of state legislature over carriers .... 104 
 
 Right to control property 104 
 
 Right to an education 104 
 
 Elqual protection of the law 104 
 
 Duties of teachers 105 
 
 Powers of school boards, etc. 105 
 
 Eights in the learned professions 105 
 
 As to privileges of members of learned professions . . 105 
 
 Choice of a religious teacher 105 
 
 Religious liberty 106 
 
 Violations of the ppnciple 106 
 
 Equality of right 106 
 
 Exceptional burdens , 106 
 
 As to exemption from unequal taxation . . . . 107 
 
 Searches 107 
 
 Provisions of constitutions as to' 107 
 
 Warrants, when allowed 107 
 
 Invasions of political rights . ■• 108 
 
 Suffrage .......... 108 
 
 Manner of deprivation of the right .... 108, 109 
 
 Exclusion from oflSce 109 
 
 Military subordination 109 
 
 Seizures of property by the military power . . . 110 
 
 Right to bear arms . 110 
 
XU TABLE OF CONTENTS. 
 
 CHAPTER X 
 INTASION OF EIGHTS IN EEAL PEOPEETY, 
 
 Page. 
 
 Deflnitionof the term "real property" HI 
 
 Licenses .....•••••• -^^^ 
 
 Implied Uoenses HI 
 
 Inyitation to enter business places . . ^ . . HI 
 
 Limits of implied invitation 118 
 
 Express licenses 112 
 
 License on condition . , 112 
 
 Eevocation of 113, 113 
 
 As to the statute of frauds 113 
 
 Application of the doctrine of estoppel . . . 114 
 
 Licefise by law . . . 115 
 
 Instances of 115 
 
 , Abuse of license 116 
 
 Boundaries of — 
 
 Land on a highway 116, 117 
 
 Land on a stream ........ 117, 118 
 
 Land on a lake or pond 118 
 
 Possession of lands 118 
 
 Actual possession 118 
 
 Constructive possession 119 
 
 Forcible entry and detainer to recover possession . . 119 
 
 Possession is rightful or wrongful .' . . . . 120 
 Action for injury to land during a tenancy, by — 
 
 The tenant . •• 120 
 
 The landlord 120 
 
 Tenants in common 121 
 
 Possession of one is possession of aU 121 
 
 Trespasses in hunting 131 
 
 Trespasses in fishing 131 
 
 Regulation of fisheries by state 133 
 
 Eight to fish in tide-waters 132 
 
 Trespass by inanimate objects 123 
 
 Waste 123 
 
 Distinguished from trespass 123 
 
 Voluntary waste 133 
 
 Permissive waste 134 
 
 Remedy for waste , , 135 
 
 CHAPTER XL 
 Df JOEIES BY ANIMAM. 
 
 At common law animals must be kept by the owner on his own 
 
 lands 136 
 
 Statutory modifications of the rule 126 
 
 Injuries by vicious animals 137^ 12jj 129 
 
 Doctrine of contributory negligence applies here . . 139 
 
 Injuries by wild beasts in confinement jgg 
 
TABLE OF CONTENTS. 
 
 xm 
 
 CHAPTER XIL 
 
 INJURIES TO INCOEPOEEAL EIGHTS. Paea 
 
 What are incorporeal rights 131 
 
 Copyrights and patents 131 
 
 What an author must show to entitle him to a copyright . 131 
 
 What an inventor must show 131 
 
 Remedy for violation of monopoly 131, 133 
 
 Inventions not patented . . . . . . . 133 
 
 Only the first discoverer is entitled to protection . . 133 
 
 Literary and artistic productions 133 
 
 No monopoly except by compliance with statute . 132 
 
 What is an abandonment 133 
 
 Dramatic and musical compositions .... 133 
 
 What constitutes piracy 133 
 
 As to scientific and legal works .... 134 
 
 Libel of publications 134 
 
 Private letters 134 
 
 As literary productions 134 
 
 As historical documents . . . . . . 135 
 
 As evidence of private transactions . . . 135 
 As a means of personal vindication . . . ' 135 
 
 As a means of infiicting injury .... 135 
 
 As autographs . 135 
 
 Wrongs in respect to trade-marks 136 
 
 Definition of trade-mark 136 
 
 What may be a trade-mark 136, 137 
 
 What is an infringement 137 
 
 Aliens will be protected 138 
 
 The good-will of a business 138 
 
 Eights of common . ^"8 
 
 Distinction between proprietary rights and those which 
 
 pertain to the sovereignty 139 
 
 Law of the road ' . . . . 139 
 
 Injuries to rights in easements ^39 
 
 Eight of way over private property 140 
 
 Obstruction of easement actionable wrong .... 141 
 
 Who may maintain action for • 141 
 
 Party-walls: 
 
 What are l^^ 
 
 Eights in, regulated by statute ^^^ 
 
 Eights of each proprietor 1^ 
 
 When the easement ends ^^ 
 
 CHAPTER XIIL 
 
 NEGLECTS OF OFFICIAL DUTY. 
 
 Offices are trusts • ^^ 
 
 Classification of official duties: 
 
 Legislative, executive and judicial 144 
 
 Ministerial '■^ 
 
XIV 
 
 TABLE OF CONTENTS. 
 
 legislative 
 
 of duty 
 
 Classdflcation of ofiScial duties — continued. 
 
 Remedy for neglect depends on nature of duty 
 
 Discretionary duty of legislatures 
 
 Remedy for neglect of ministerial duties by 
 bodies . 
 
 So in the case of executive and judicial oflScers 
 
 No ground for private action till neglect of duty 
 Rule of oflScial responsibility .... 
 
 Immunity from private suits depends on nature i 
 Illustrations: 
 
 Highway commissioners 
 Quarantine o£Sceri3 .... 
 Recorder of deeds — 
 
 Owes duty to individuals • . 
 
 Illustrations of actionable wrongs by - 
 
 Effect of statutes 
 
 Inspectors of provisions — 
 
 When liable . - 
 
 Postmasters — 
 
 Owe duties to individuals as well as to public 
 
 Liable for carelessness of clerks . 
 Clerk of a court — 
 
 Illustrations showing liability 
 Sheriff — 
 
 Duties in service of civil process . ... 
 
 Liable for mistake in seizing goods on execution 
 
 Responsibility of, for acts of deputies . 
 Notary pubUc — 
 
 When liable 
 
 Want of means to perform a duty 
 Highway oflBoers — 
 
 Liability of, to individuals 
 
 De facto officers — 
 
 Liability of, the same as when the office is held of right 
 
 Page. 
 
 144 
 144 
 
 145 
 145 
 146 
 146 
 
 147 
 
 147 
 148 
 
 148 
 149-151 
 149-150 
 
 151 
 
 153 
 153 
 
 153 
 
 153 
 154 
 154 
 
 155 
 155 
 
 156 
 
 156 
 
 CHAPTER XIV. 
 
 IMMUNITY OF JUDICIAL OFFICERS. 
 
 Reasons for exemption 157-160 
 
 General rule 160 
 
 Rule applies to judicial officers of every grade . . . 160 
 
 And -to military officers , 160 
 
 And to assessors, etc. 160 
 
 As to election officers 161 
 
 Necessity of jurisdiction I63 
 
 What is jurisdiction I63 
 
 Jurisdiction of inferior courts, how must appear . . 163 
 
 The officer must not be interested I64 
 
 As to interest of legislators I65 
 
tabt.t; of contents. xv 
 
 Page. 
 
 Contempts of authority 165 
 
 Power to punish for, inherent in court . , . . 166 
 
 Instances of 166 
 
 Party must be heard 167 
 
 Punishment must be certain 167 
 
 CHAPTER XV. 
 
 AVEONGB RESPECTING PERSONAL PROPERTY. 
 
 Classification of property 169 
 
 Origin of the classification real and personal . . . 169 
 
 Fixtures 170 
 
 How to determine what are 170 
 
 Intention material 170 
 
 Manner of ann^ation unimportcint .... 170 
 
 Agreement as to fixtures . ...... 171 
 
 Betterments 173 
 
 Sidewalks, property in 173, 173 
 
 Growing crops, property in 173 
 
 WUd animals, proi)erty in . 173, 174 
 
 English rule 174 
 
 American rule 174 
 
 How wrongs may be done 174 
 
 Trespass to personal property, what is 174 
 
 The possession disturbed by trespass 174 
 
 Trespass may be intentional or imintentional . . . 175 
 
 The force 175,176 
 
 Distinction between trespass and case .... 176 
 
 Incorporeal hereditaments not the subject of force . . 176 
 
 Remedies for trespass 176 
 
 Indirect injuries 176, 177 
 
 Trover 177 ef seq. 
 
 The form of the action 177 
 
 Distinguished from replevin - 177 
 
 ' Distinguished from trespass 177 
 
 The plaintiff 177 
 
 Possession suflScient 178 
 
 "When a showing of title not sufficient .... 178 
 
 The property for which may be maintained . . . 179 
 
 The conversion 180 
 
 Demand and refusal 181 
 
 Conversion by tenant in common 183 
 
 Conversion by bailees 183 
 
 The injury 183 
 
 The effect of judgment 184 
 
 Justification by process 184 
 
 The protection 185 
 
 What process is fair on its face 185 
 
XVI TABLE OF CONTENTS. 
 
 Page. 
 
 ' When the party is liable 187 
 
 Protection of purchaser under execution 187 
 
 Locality of wrongs ". . . . 188 
 
 Distinction between local and transitory actions . . 188 
 
 CHAPTER XVL 
 DECKPnON. 
 
 Fraud is actual or constructive 190 
 
 What necessary to maintain action 191 
 
 Burden of proof . . 191 
 
 What constitutes deception 191 
 
 Caveat emptor 191 
 
 When silence amounts to deceit 193, 193, 194 
 
 Matters of opinion 195 
 
 Matters of law 196 
 
 Fraudulent promises . . 196 
 
 Self-protection, necessity for 196 
 
 Representations to disarm vigilance 197 
 
 Representations as to title 199 
 
 Who may rely upon representations 199 
 
 Representations must be material 200 
 
 Deceiving third persons 201 
 
 Party must have known the representations to be untrue . 203 
 
 Rescinding contract for fraud 203 
 
 AfiBrmanoe of the contract 204 
 
 Indirect suppression of fraud 204 
 
 Duress a species of fraud 205 
 
 CHAPTER XVIL 
 
 WRONGS IN CONFIDENTIAL RELATIONS. 
 
 What is meant by the term 206 
 
 Undue influence 206 
 
 The relation of husband and wife 206 
 
 Parties enjgaged to marry 207 
 
 Seduction 207, 208 
 
 Parent and child .' . 208 
 
 Illegal sexual relations 209 
 
 Persons of weak intellect 209 
 
 Officers of corporations 210 
 
 Illustrations of breaches of duty by ... . 211, 212, 213 
 
 Trustees 213 
 
 Principal and agent 215 
 
 Attorney and client ^. , 215 
 
 Physicians and clergymen 216 
 
TABLE OF CONTENTS. XVU 
 
 CHAPTER XVIII. 
 
 THE BELATION OF MASTER AND SERVANT. 
 
 Page. 
 
 Signifioationof term "servant" 218 
 
 Liability of master to third persons 219 
 
 Intentional acts 219 
 
 Unintentional wrongs ........ 221 
 
 Disobedience of orders 221 
 
 Liability of master to servant 221 
 
 General rule 231 
 
 Negligence of fellow-servants 222 
 
 Who are feUow-servants 223 
 
 Independent contractors 233 
 
 "Who is a contractor 224 
 
 Master's negligence^ 224 
 
 Unsafe buildings and machinery 225 
 
 Exposure of inexperienced persons to peril . . . 226 
 
 Orders to assume exceptional dangers .... 227 
 
 Latent defects in machinery 227 
 
 Unskilful servants 228 
 
 Failure to remove perils 228 
 
 Combined negligence of master and feUow-servant . 229 
 
 Distinct business 229 
 
 Contributory negligence 230 
 
 General summary 231 
 
 CHAPTER XIX. 
 
 NUISANCES. 
 
 What is a nuisance .......•• 232 
 
 Annoyances without fault 232 
 
 Nuisances which injure the realty 233 
 
 Filthy percolations 333 
 
 Percolating waters 233 
 
 Deposits upon land ■ . 234 
 
 Leakage from water-pipes 234 
 
 Injuries by bursting of reservoirs 235 
 
 The American rule . 235 
 
 The English rule . • 235,230 
 
 Falling waters and snows 236 
 
 Drawing off surface water 236 
 
 What is a water-course 238 
 
 Construction of drains by municipal- corporations . 239 
 
 Subterranean waters 239 
 
 Nuisances in the use of water-courses .... 240 
 
 Diversion of water 241 
 
 Reasonable use of water 241 
 
 Detention of water 243 
 
 Diminution of water 243 
 
XTUl TABLE OF CONTENTS* 
 
 Nuisances wliicli injure the realty — continued. Page. 
 
 Flooding lands 243 
 
 I Fouling the water of streams 343 
 
 Negligent fires 244 
 
 Fires communicated by machinery 245 
 
 Injuries by fire-arms 246 
 
 Removing lateral support 246 
 
 Subjacent support . . 847 
 
 Nuisances causing personal discomfort 348 
 
 What is a reasonable use of property 249 
 
 Offensive noises 249 
 
 Jar of machinery 250 
 
 Nuisance of dust, smoke, etc 250 
 
 OfEensive odors 250 
 
 Mental disquietude ^ 351 
 
 Inviting one into dangerous places 252 
 
 What constitutes an invitation 253 
 
 Nuisances which threaten calamity 253 
 
 Diseased beasts 254 
 
 Responsibility for nuisances 254 
 
 The complainant 255 
 
 Private injury from public nuisance ..... 256 
 
 What is a special injury 258 
 
 Continuity of the wrong 258 
 
 Ntiisances by municipal corporations 259 
 
 Individual liability for defects in streets 261 
 
 CHAPTER XX. 
 
 WRONGS FROM NON-PERFORMANCE OF CONVENTIONAL AND STATUTORY 
 
 DUTIES. 
 
 Bailment, what is 263 
 
 Ditferent classes of 263 
 
 Negligence, what is 268 
 
 _ Degrees of negligence 263 
 
 Bailments for benefit of bailee 264 
 
 Bailments for mutual benefit .■ 264 
 
 Innkeepers: 
 
 Whpare . 265 
 
 Responsibility of , . . 266 
 
 Common carriers . . . 267 
 
 Who are 367 
 
 Must be impartial 268 
 
 As to transportation of live-stock 368 
 
 As warehousemen 269 
 
 Carriers of persons 269 
 
 When responsibility begins 270 
 
 Regulation of business by 271 
 
TABLE OF CONTENTS. xix 
 
 Page. 
 
 Telegraph companies 271 
 
 Resemble carriers ■ . . 273 
 
 "Regulation of biisiness by 272 
 
 Skilled workmen 273 
 
 Professional services 273 
 
 Voluntary services 274 
 
 Statutory duties 274 
 
 Rules for construction of statutes 275 
 
 Statutes for fencing railroads 276 
 
 CHAPTER XXI. 
 
 REDRESS FOB NEGLIGENCE. 
 
 Essential to show existence of duty 379 
 
 Essential to show failure to perform duty .... 279 
 
 As to presumptions 280 
 
 Is negligence a question of law 282 
 
 Statement of the rale 283 
 
 Contributory negligence 284 
 
 Burden of proof 284 
 
 Negligence of plaintiff and recklessness of defendant co- 
 operating . 285 
 
 The general rule 285 
 
 ^ As to comparative negligence 286 
 
 Must be the proximate cause of the injury . . . 286 
 
 Negligence of infants 287 
 
 Subsequent to the injury ....... 288 
 
 Negligence of third parties 288 
 
 Contracts against liability for negligence .... 889 
 
 Restrictions of liability by telegraph companies . . . S90 
 
 CHAPTER XXIL 
 
 EVIL MOTIVE. 
 
 Motive in general unimportant . 
 Damage at the hands of government 
 Shutting off light and air . 
 Adopting a trade-mark .... 
 Other acts which damnify but do not wrong 
 Exceptional cases where motive is important 
 Bad motive increases necessity for caution 
 And aggravates damage .... 
 
 292 
 293 
 293 
 293 
 293 
 294 
 294 
 295 
 
TABLE OF CASES CITED. 
 
 References are to pages. 
 
 Abbott V. Abbott (67 Me. 304, 24 Am. 
 Eep. 27), 81. 
 V. Kansas CSty, eta Ca (83 Mo. 
 
 271), 237. 
 V. Kimball (19 Vt. S51, 47 Am. 
 Dec. 708), 153. 
 Abendroth v. Manhattan R. Co. (123 
 
 N. Y. 1, 11 L. R. A. 634), 293. 
 Abraham v. Nunn (43 Ala. 51), 183. 
 Abrahams v. Kidney (104 Mass. 322, 
 
 6 Am. Eep. 220), 85. 
 Abt V. Burgheim (80 HI 92), 50. 
 Acker, In re (66 Fed. Rep. 390), 167. 
 Acres, Lake Erie, etc. E. Co. v. (108 
 
 Ind. 548), 270. 
 Acton T. Blmndell (13 M. & W. 334), 
 
 239. 
 Adams v. Burton (43 Vt. 336), 174 
 T. Clem (41 Ga. 65, 5 Am. Eep. 
 
 624), 367. 
 V. Hall (3 Vt. 9, 19 Am. Deo. 690), 
 
 130. 
 V. Main (3 Ind. Ap. 332), 7a 
 V. Pease (3 Conn. 481), 117. 
 V. Popham (76 N. Y. 410), 232. 
 V. Reeves (68 N. C. 134, 13 Am. 
 
 Eep. 637), 203. 
 V. Waggoner (33 Ind. 531, 5 Am. 
 
 Eep. 23), 46, 48. 
 T. Walker (34 Conn. 466), 339. 
 Adams Express Co., Evans v. (122 
 Ind. 362, 7 L. E. A. 678), 286. 
 Fotheringham v. (36 Fed. Rep. 
 
 252, 1 L. E. A. 474), 50. 
 Pendergast v. (101 Mass. 120), 369. 
 Adams, West, etc. Co. v. (55 Ga. 379), 
 
 330. 
 Adrae v. Haseltine (58 Wis. 395, 46 
 Am. Eep. 635), 143. 
 
 Adsit V. Brady (4 Hill, 630, 40 Am. 
 
 Dec. 305), 155. 
 Advertiser Co., Burt v. (154 Mass. 
 
 238, 13 L. R. A. 97), 66, 73. 
 jffitna L. Ins. Co. v. Hesser (77 Iowa, 
 
 381, 4 L. R. A. 133), 150. 
 Agnew V. Corunna (55 Mich. 438), 357, 
 
 260. 
 Akeley Lumber Co., Day v. (54 Minn. 
 
 522, 23 L. R. A. 512), 245. 
 Ala. etc. R. Co. v. Arnold, 80 Ala. 
 
 600), 270. 
 Ala. G. S. R. Co., Jordan v. (74 Ala, 
 
 85, 49 Am. Rep, 800), 35. 
 Albright, Lancaster Co. Bank v. (21 
 
 Pa. St. 328), 194. 
 Alcorn, Columbia Mill Co. v. (150 
 
 U. S. 460), 137. 
 Alden v. Murdock (13 Mass. 256), 
 
 118. 
 Aldrich v. Bennett (63 N. H. 415, 56 
 
 Am. Rep. 539), 87. 
 Aldworth v. Lynn (153 Mass. 53, 10 
 
 L. R. A. 310), 357. 
 Alexander v. Church (53 Conn. 561), 
 
 190. 
 Alfele V. Wright (17 Ohio St. 238, 93 
 
 Am. Dec. 615), 61. 
 Alff V. Radam (77 Tex. 530, 9 L. R. A. 
 
 ,145), 136. 
 Allen V. Hart (72 lU. 104), 195. 
 Allen V. KeUy (17 R. L 731, 16 L. R. A. 
 798), 18, 120. 
 
 V. News Pub. Co. (81 Wis. 120), 
 65. 
 
 V. Webster (80 Wis. 531, 14 L. R. 
 A. 361), 118. 
 
 V. Wortham (11 Ky. L. Rep. 697), 
 53. 
 
xxu 
 
 TABLE OF CASES CITED. 
 
 Eeferenees are to. pages. 
 
 AUouez Min. Co., Edwards v. (38 
 
 Mich. 46), 356. 
 Almy V. Harris (5 Johns. 175), 375, 
 
 376. 
 Alton V. Hope (68 IlL 167), 339. 
 Am. Bank v. Mumf ord (4 E. I. 478), 
 
 186. 
 Am. Exp. Co., Durgin v. (N. H., 9 
 
 L. E. A. 453), 389. 
 Ames V. Pt. Huron, etc Co. (11 Mich. 
 
 139, 83 Am. Dec. 731), 314 
 Amick V. Tharp (13 Gratt. 564, 67 
 
 Am. Dee. 787), 143. 
 Amory v. Flyn (10 Johns. 103, 6 Am. 
 
 Deo. 316), 173. 
 Amoskeag Co., Eastman v. (44 N. H. 
 
 143), 355. 
 Amoskeag Mfg. Co. v. Goodale (46 
 
 N. H. 531), 343. 
 Amy V. Supervisors (11 WalL 136), 
 
 155. 
 Anderson v. Burrows (4 C, & P. 310), 
 53. 
 V. Dunn (6 Wheat. 304), 166. 
 V. How (116 N. Y. 336), 54. 
 V. Louisville, etc. R Co. (63 Fed. 
 Eep. 46), 103. 
 Andrew v. Deshler (45 N. J. L. 167), 
 
 76. 
 Andrews v. Blakeslee (13 Iowa, 577), 
 150. 
 Hartford, etc. E. Co. v. (36 Conn. 
 
 313), 95. 
 V. Harris (1 Q. B. 3), 105. 
 V. State (3 Heisk. 165,1 Green 
 Cr. Eep. 466, 8 Am. Eep. 8), 
 110, 
 Androscoggin, etc. E. Ca, Boothby 
 
 v. (51 Me. 318), 347. 
 Angeles, People v. (61 CaL 188), 49. 
 Anglin v. Texas & Pac. E. Co. (60 
 
 Fed. Eep. 553), 334 
 Ankeny v. Moffett (37 Minn. 109), 44 
 Anon. (Skinner, 119), 88. 
 'Anon. (60 N. Y.-363, 19 Am. Eep. 174), 
 
 64 
 Antoliff V. June (81 Mich. 477, 10 L. 
 E. A. 631, 31 Am. St. Eep. 533), 56. 
 Antomarchi v. Eussell (63 Ala. 856, 
 35 Am. Eep. 40), 143. 
 
 Antoni v. Belknap (103 Mass. 193), 
 
 171. 
 Apgar V. "Woolston (43 N. J. L. 57), 55, 
 
 56. 
 Archibald v. Sweet (5 C. & P. 219), 
 
 134 
 Arimond v. Green Bay, etc. Co. (31 
 
 Wis. 316), 357. 
 Armory v. Delamirie (Stra. 505, 1 
 
 Sm. L. C. 679), 178. 
 Arnold, Ala. etc. E. Ca v. (80 Ala. 
 600), 370. 
 
 V. Foot (13 Wend. 380), 341. 
 Aronson v. Baker (43 N. J. 365), 134 
 Ashby V. White (Ld. Eaym. 938, 1 
 
 Sm. L. C. 473), 6, 161. 
 Ashley v. Port Huron (35 Mich. 396, 
 34 Am. Eep. 553), 339, 360. 
 
 V. Wolcptt (11 Cush. 193), 338. 
 Ashwell V. Lomi (L. E. 3 P. & D. 477, 
 
 4 Moak, 700), 317. 
 Aspden v. Seddon (L. E. 10 Ch. App. 
 
 394), 348. 
 Atchison v. Peterson (30 WalL 507), 
 
 340. 
 Atchison, etc. Co. v. Weber, 33 Kan. 
 
 543), 371. 
 Atchison, etc. E. Co., Sanborn v. (35 
 
 Kan. 393), 333. 
 Atchison, T. & S. F. E. Co. v. Morgan 
 
 (43 Kan. 33, 4 L. R A. 284), 170. 
 Atkins V. Bordman (3 Met. 457), 141. 
 
 V. Johnson (43 Vt. 78, 5 Am. Eep. 
 360), 44 
 Atkinson v. Detroit, etc. Co. (46 Mich. 
 
 341), 74 
 Atlanta, etc. E. Co., Britton v. (88 N. 
 
 C. 536), 371. 
 Atlantic Delaine Co., Eichmond Mfg. 
 
 Co. V. (10 R I. 106), 343. 
 Atlantic, etc. R Co. v. Hnkins (94 
 U. S. 11), 79. 
 
 Stearns v. (46 Me. 95), 245. 
 Atlantic & Pac. R Co., Lutz v. (N. 
 
 M., 16 L. R A. 819), 94 229. 
 Attersall v. Stevens (1 Taunt. 188), 
 
 124 
 Atwater v. Sawyer (76 Me. 539), 266. 
 
 V, Tupper (45 Conn. 144, 29 Am. 
 Eep. 674), 184 
 
TABLE OF CASES CITED. 
 
 XXIU 
 
 References are to pages. 
 
 Atwood V. Atwater (Neb., 61 N. W. 
 
 Rep. 574), 160. 
 Aubvu-n, etc. P. R. Co., Bouglass v. 
 
 (9 N. Y. 444), 293. 
 Audenreid V. Phila. etc. R. Co. (68 Pa. 
 
 St. 370), 368. 
 Aiigusta Evening News v. Radford 
 
 (91 Ga. 494, 20 L. R A- 533), 73. 
 Austin V. Carswell (67 Hxin, 579), 4. 
 
 V. Vrooman (128 N. Y. 239, 14 L. 
 R. A, 138), 163. 
 Austin Rapid T. R. Co. v. CuUen 
 (Tex. Civ. App., 30 S. W. 
 • Rep. 578), 98. 
 
 V. Cullen (39 S. "W. Rep. 356), 97. 
 Avery, Eaton, etc. Co. v. (83 III. 31), 200. 
 Ayer V. Norwich (39 Conn. 376, 13 
 
 Am. Rep. 396), 357, 360. 
 Ayre v. Craven (3 Ad. & E. 7), 63. 
 Ayres v. French (41 Conn. 150), 179. 
 
 Morris, etc. R. Co. v. (29 N. J. 
 393), 269. 
 
 B. 
 
 Babcock v. Case (61 Pa. St 437, 100 
 
 Am. Dec. 654), 204 
 Backes v. Dant (55 Ind. 181), 93. 
 Backhouse v. Bonomi (9 H. L. Cas. 
 
 503), 347. 
 Backman, United States Exp. Co. v. 
 
 (38 Ohio St. 144), 367. 
 Bacon v. Boston (3 Cush. 174), 360. 
 
 v. Kimmel (14 Mich. 301), 184. 
 
 V. Mich. Cent. R Co. (66 Mich. 
 ■ 166), 73. 
 
 V. Towne (4 Cush. 317), 55. 
 Baddeley, C, C. & St. L. R. Co. v. 
 
 (150 IlL 338), 95. 
 Badger v. Batavia Paper Co. (70 IlL 
 302), 183. 
 
 y. Phinney (15 Mass. 359, 8 Am. 
 Dec. 105), 31. 
 Bagley v. Kennedy (85 Ga. 703), 130. 
 Bailey v. Smock (61 Mo. 313), 199. 
 
 Lake Erie & W. R. Co. v. (61 
 Fed. Rep. 494), 103. 
 Bain v. Clark (10 Johns. 434), 173. 
 Baird v. Boehner (77 Iowa, 633), 86. 
 
 V. Pettitt (70 Pa. St 477), 333: 
 c 
 
 Baker's Case (9 Co. 53&), 336. 
 Baker v. Braslin (16 R I. 635, 6 L. R. 
 A. 718), 33. 
 V. Mersch (39 Neb. 337), 18. 
 V. Monk (4 De G., J. & S. 388), : 
 
 309. 
 V. Morton (13 Wall. 150), 305. 
 V. Portland (58 Me. 199, 4 Axn. 
 
 Rep. 374), 46, 139. 
 V. State (37 Ind. 485),'145. 
 V. Yoiing (44 IlL 43, 93 Am. Dee. 
 149), 33. 
 Baldock v. Johnson (14 Oreg. 543), 
 
 309. 
 Baldwin v. Smith (82 111. 163), 16. 
 BaU V. Nye (99 Mass. 583), 233. 
 Ball, Ex parte (L. R 10 Ch. D. 667), 
 
 34. 
 Ballentine v. Webb (84 Mich. 38, 13 
 
 L. R A 381), 250, 351. 
 Ballou V. Earle (17 R L 441, 14 L. R : 
 
 A 433), 290. 
 Balme v. Button (9 Bing. 471), 36. 
 Baltimore, etc. Co., Chesapeake, etc. 
 Co. V. (66 Md. 399), 373. 
 Wonder v. (33 Md. 411, 3 Am. 
 Rep. 143), 333. 
 Baltimore, etc. R Co. v. McKenzie 
 (81 Va. 71), 384 
 V. Miller (39 Md. 353), 270. 
 V. O'Donnell (49 Ohio St 489, 21 
 
 L. R A. 117), 393. 
 V. Reaney (43 Md. 117), 247. 
 V. State (33 Md. 543), 385. 
 Banfield v. Whipple (10 Allen, 37), 
 
 181. 
 Bangor v. Lansil (51 Me. 531), 237. 
 Bank of St. Marys v. St John (25 
 
 Ala- 566), 313. 
 Banks v. Gibson (34 Beav. 566), 137. 
 Barber v. Essex (37 Vt 63), 284 
 
 V. Mensch (157 Pa. St 390), 136. 
 Barbiur v. Connolly (113 U. S. 37), 
 
 100. 
 Barhight v. Tammany (158 Pa. St. 
 
 545), 54 
 Bamardiston v. Soame (6 St. Tr. • 
 
 1063), 157. 
 Barndt v. Frederick (78 Wig. 1, 11 L. 
 R A. 199), 191, 
 
XXIV 
 
 TABLE OF CASES CITED. 
 
 References 
 
 Barnes v. Brown (33 Mich. 146), 305. 
 V. CampbeU (59 N. H. 128, 47 Am. 
 
 Rep. 183), 74. 
 v. Hathom (54 Me. 134), 251. 
 Earnett v. Reid (51 Pa. St. 190), 56. 
 V. Ward (86 Ohio St. 107, 38 Am. 
 Bep. 561), 61, 
 Bamett, etc. Co., Bright v. (^8 Wis. 
 
 399, 36 L. R. A. 534), 335, 352. 
 Barney v. Lowell (98 Mass. 570), 359. 
 Barnowski v. Helson (15 K R. A. 38), 
 
 281. 
 Barr v. Birkner (Neb., 63 N. W. Rep. 
 494), 61, 74 
 V. Sissex Trades Council (N. J. 
 Eq., 30 AtL Rep. 881), 101. 
 y, Moore (87 Pa. St. 385, 50 Am. 
 Rep. 367), 67. 
 Barrow v. Richard (8 Paige, 851), 
 
 140. 
 Barrows v. Bell (7 Gray, 301, 66 Am. 
 
 Dec. 479), 74. 
 •Barry v. Arnaud (10 Ad. & EL 646), 
 158. 
 Little Rook & M. R. Co. v., (58 
 Ark. 198, 35 L. R. A. 386), 
 338. 
 V. Peterson (48 Mich. 368), 336. 
 Barry, Ex parte (85 CaL 603, 30 Am. 
 
 St. Rep. 348), 167. 
 Bartley v. Richtmeyer (4 N. J. 38, 53 
 
 Am. Deo. 888), 85. 
 Bartlett v. Boston G-aslight Co. (117 
 Mass. 588), 33. 
 V. Crittenden (4 McLean, 300, 5 
 
 McLean, 33), 133. 
 V. Crozier (17 Johns. 449, 8 Am. 
 
 Dec. 438), 156. 
 V. Hoyt (39 N. H. 317), 178. ' 
 Barton v. Union Cattle Co. (38 Neb. 
 
 350, 7 L. R. A. 457), 343. 
 Bartonshill Coal Co. v. MoGnire (3 
 Macq. H. L. 300), 337. 
 V. Reid (3 Macq. H. L. 366), 323, 
 237. 
 Batavia Paper Co., Badger v. (70 HL 
 • 303), 183. 
 Batchelder v. Hibbard (58 N. H. 269), 
 113. 
 V. Moore (43 Cal. 413), 166. 
 
 are to pages. 
 
 Bates V. Rutland (63 Vt. 178), 9 L. B. 
 
 A. 363), 30. 
 Baum V. Clause (5 Hill, 196), 63. 
 Baxter v. Roberts (44 CaL 187, 13- 
 
 Am. Rep. 610), 337. 
 Bayfield, Chicago, eta R. Ca v. (ST 
 
 Mich. 305), 337. 
 Bayles v. Burgard (48 lU. App. 371),. 
 
 83. 
 Beach v. Hancock (37 N. H. 333), 47.. 
 Beam v. Maoomber (33 Mich. 137)^ 
 
 315. 
 Beanland v. Bradley (3 Sm. & G_ 
 
 339), 309. 
 Beard v. IlL Cent. R. Ca (79 Iowa,. 
 518), 268. 
 
 V. Skeldon (ll3 IlL 584), 95. 
 Beardslee v. Richardson (11 Wend.. 
 
 35), 374 
 Beck & Pauli Lith. Co. v. Houppert 
 
 (Ala., 16 So. Rep. 533), 198. 
 Becke v. Mo. P. R. Co. (103 Mo. 544^. 
 
 9 L. R. A. 157), 377, 289. 
 Beckwith v. Shordyke (4 Burr. 3093)^ 
 
 131. 
 Bedan v. Turney (99 CaL 649), 78. 
 BedeU v. Bailey (58 N. H. 63), 164 
 Bedford v. Hunt (1 Blason, 303), 133> 
 
 V. Scribner (144 V. S. 488), 133. 
 Bedlow V. N. Y. F. D. D. Co. (113 N> 
 
 Y. 363, 3 L. R. A. 639), 173. 
 Bedore v. Newton (54 N. H. 117), 92. 
 Beebe v. Robinson (53 Ala. 66), 144 
 Beihpfer v. Loebfert (159 Pa. St. 365,. 
 
 374), 55. 
 Belknap v. Ball (83 Mich. 583, 11 L. 
 
 R. A. 73), 73. 
 Bell V. Clapp (10 Johns. 263, 6 Am. 
 Dec. 339), 108. 
 
 V. Locke (8 Paige, 75), 136. 
 
 V. North (4 titt. (Ky.) 133), 185. 
 Belo v. Wren (63 Tex. 686), 69. 
 Belvidere R. Co.,,Tinsman v. (25 N. J. 
 
 255, 64 Am. Dec. 415), 141. 
 Bennett v. Allcott (2 T. R. 166), 84 
 
 V. Beam (42 Mich. 346, 36 Am. 
 Rep. 443), 207. 
 
 V. Bennett (116 N. Y. 584, 6 L. E. 
 A. 553), 81. 
 
 V. Dutton (10 N. H. 481), 370. 
 
TABLE OF CASES CITED. 
 
 XXT 
 
 JBe/ercftces are to pages. 
 
 Bennett v. iNilmer (49 Pa. St. 155), 161. 
 
 V. N. J. R. Ca (36 N. J. 335), 389. 
 
 V. Smith (31 Barb. 439), 79. 
 
 V. Tintic Iron Ca (9 Utah, 391), 
 335. 
 
 V. Whitney (94 N. T. 302), 146. 
 Bentley v. Craven (18 Beav. 75), 214 
 Bentley, etc. R. Co., PoweU. v. (84 W. 
 
 Va. 804, 13 L. R A. 53), 349. 250. 
 Berdetta, State v. (73 Ind. 185), 16. 
 Berlin Maoh. "Works, Luebke v. (88 
 
 Wis. 443), 336. 
 Bevans v. Briscoe (4 H. & J. 139), 173. 
 Bevard v. Hoffman (18 Md. 479), 163. 
 Bickett ▼. Morris (L. E. 1 H. L. Cas., 
 
 So. Ap., 47), 117. 
 Bigaouette v. Paulet (134 Mass. 133, 
 
 45 Am. Rep. 307), 78. 
 BUeu V. Paisley (18 Oreg. 47, 7 I* E. 
 
 A. 840), 136. 
 Billings V. Lafferty (31 IlL 318), 153, 
 
 161. 
 BiUingsley v. State (14 Md. 369), 156. 
 Binkleiy v. Forkner (117 Ind. 176, 3 L. 
 
 R. A. 33), 169. 
 Bird V. Holbrook (4 Bing. 638), 50. 
 
 V. Jones (7 Q. B. 743), 50. 
 
 V. Perkins (33 Mich. 28)> 186. 
 Birkenhead, etc. R. Co., Roe v. (7 
 ' Exch. 36, 7 Eng. L. & Eq. 546), 
 
 37. 
 Birkett v. West U. TeL Co. (Mich., 
 
 61 N. W. Rep. 645), 390. 
 Birmingham Water-works, Blythe 
 
 V. (11 Exch. 781), 363. 
 Birmingham Water-works Co. v. 
 
 Hubbard (85 Ala. 179, 4 So. Rep. 
 
 607), 220. 
 Bischoff V. Trenhohn (36 S. C. 75), 19. 
 Bishop V. Schneider (46 Nev. 472, 3 
 Am. Rep. 533), 150. 
 
 T. Williamson (11 Me. 495), 153. 
 Bissell V. ColUns (28 Mich. 377, 15 
 
 Am. Rep. 317), 117. 
 Black, etc. Co., Robinson v. (50 Cal. 
 
 460), 334 
 Black River, etc. Co. v. La Crosse, 
 
 etc. Co. (54 Wis. 659), 241. 
 Blacknall v. Rowland (N. C, 31 S. E. 
 
 Rep. 396), 199. 
 
 Blades v. Higgs (13 C. D, ^4 11 H. 
 
 L. Cas. 631), 174 
 Blagge V. nisley (137 Mass. 191, 34 
 
 Am. Rep. 361), 83, 85. 
 Blaine v. Ches. & O. R. Ca (9 W. Va. 
 
 353), 386. 
 Blair v. Ridgley (41 Mo. 183), 7. 
 Blake, State, AUison v. (N. J., 25 I* 
 
 R. A. 480), 12. 
 Blake Mfg. Co., Howland v. (156 Mass. 
 
 543), 73. 
 Blakeslee v. Carroll (64 Conn. 333, 35 
 
 L. R. A. 168), 68, 70. 
 Blanchard v. Baker (8 Me. 358), 340. 
 
 V. nisley (130 Mass. 487, 36 Am. 
 Repj 535), 83, 86. 
 Blanding, Com. v. (3 Pick 304 15 
 
 Am. Deo. 314), 73. 
 Bliss V. Kennedy (43 IlL 68), 243. 
 Bloodgood V. AyerS, 108 N. Y. 400, 
 Blossom V. Barrett (37 N. Y. 434 97 
 
 Am. Dec. 747), 88. 
 Blumliardt v. Rohr (70 Md. 338), 67. 
 Blyth V. Birmingham Water-works 
 
 (11 Exch. 781), 363. 
 Blythe y. Ayres (96 CaL 533, 19 L. E. 
 
 A. 40), 14 
 Board of Education v. Minor (33 
 
 Ohio, N. S., 311, 13 Am. Rep. 233), 
 
 105. 
 Board of Supervisors, Pearson v. (31 
 
 S. E! Rep. 483), 13. 
 Bodwell V. Bragg (39 Iowa, 2g2), 367. 
 
 V. Osgood, 3 Pick. 379, 15 Am. 
 De& 228), 70. 
 Boggs, Chicago, etc. R. Co. v. (101 
 
 Ind. 533), 377. 
 Bohan v. Port Jarvis, etc. Co. (123 
 
 N. Y. 18, 9 L. E. A. 711), 348, 350, 
 , 357. 
 BoiUng Springs Bleaching Co., Hols- 
 man V. (14 N. J. Eq. 385), 243. 
 Bolton V. MiUer, 6 Ind. 365), 84 ' 
 Bonaparte v. Clagett (78 Md.e7), 183. 
 Boom Co., Kidder v. (34 Pa. St. 193), 
 
 375. 
 Booth V. Storrs (75 IlL 438), 195. 
 
 V. Wonderly, 36 N. J. 250), 200. 
 Boothby v. Androscoggin, etc. R. 
 
 Co. (SI Me. 318), 247. 
 
xxyi 
 
 TABLE OF CASES CITED. 
 
 Beferences are to pages. 
 
 Boston, Connolly v. (117 Mass. 64, 19 
 
 Am. Rep. 396), 45. 
 
 V. Simmons (150 Mass. 461, 6 L. 
 
 R. A. 639), 36, 44 
 
 Boston Duck Co., Gould v. (13 Gray, 
 
 442), 240. 
 Boston, eta E. Co., Darling v. (131 
 Mass. 118), 276. 
 Dewire v. (148 Mass. 443, 2 L. R. 
 
 A. 166), 370. 
 Dodge V. (148 Mass. 307, 2 L. R 
 
 A. 83), 369. 
 Duntley v. (N. H., 9 L. R A. 449), 
 368. 
 . FarweJl v. (4 Met. 49, 88 Am. 
 
 Dec. 339), 333. 
 < ■ . Gray v. (114 Mass. 149, 19 Am. 
 Rep. 334), 255. 
 King V. (9 Gush. 112), 336. 
 Lyman v. (66 N. U. — , 11 1,. R. 
 
 A. 364), 384. 
 Moses Y. (33 N. H. 523), 269. 
 Wheelwright v. (135 Mass. 325), 
 287. 
 Bouoicault v. Fox (5 Blatch. 87), 133. 
 Bourne v. Stout (63 DL 361), 54. 
 Bovee v. DanvUle (53 Vt. 183), 285. 
 Bowen, JeffersonTUle R. Co. v. (40 
 , Ind. 545), 287. 
 
 Bowling V. Arthur (34 Miss. 41), 155. 
 Bowman v. Carithers (40 Ind. 90), 303. 
 Boyd V. Conklin (54 Mich. 583), 337. 
 
 V. Cross (35 Md. 194), 55. 
 BoyntonT. Gilman (53 Vt. 17), 237. 
 
 V. Remingtpn (3 Allen, 897), 63. 
 Brackett v. Hoitt (30 N. H. 357), 36. 
 
 V. Norcross (1 Me. 89), 131. 
 Bradbury, Cent. U. Co. v. (106 Ind. 
 
 1), 372. 
 Bradford v. Floyd (80 Mo. 307), 254. 
 Bradlaugh v. Gassett (L. R. 12 Q. B. 
 
 371 — 1884), 7. 
 Bradley v. Chase (33 Me. 511), 304 
 V. Cramer (66 "Wis. 297), 71. 
 V. Cunningham (61 Conn. 485, 15 
 
 L. R. A. 679), 363. 
 V. Davis, 14 Me. 44, 30 Am. Dec. 
 
 739), 174 
 V. Fisher (13 Wall. 348), 158, 159, 
 160, 164 
 
 Bradley v. Heath (13 Kck. 163, 32 
 Am. Dec. 418), 70. 
 
 Wyeley Canal Co. v. (7 East, 368), 
 347. 
 Bradley, Ex parte (7 Wall 364), 167. 
 Bradstreet, MitcheU v. (116 Mo. 226, 
 
 30 L. R A. 138), 72. 
 Bradstreet Co. v. Gill (73 Tex. 115, 3 
 
 L. R A. 405), 73. 
 Bradwell v. State (55 HL 535, 16 
 
 WaU. 130), 105. 
 Brady v. Firm (163 Mass. 260), 199. 
 
 V. Stiltner (W. Va., 31 S. E. Rep. 
 739), 55. 
 
 V. Whitney (34 Mich. 154), 184 
 Braim v. Tombstone (Ariz., 83 Pac. 
 
 Rep. 589), 109. 
 Brainard v. Head (15 La. 489), 186. 
 Bramf ord v. Tumley (3 Best & S. 65), 
 
 249. 
 Branch Bank, Cullum v. (4 Ala. 21, 
 
 37 Am. Deo. 725), 196. 
 Bray v. Wheeler (29 Vt 514), 13. 
 Brazil, etc. Co. v. Gaflfney (119 Ind. 
 
 455, 4 L. R A. 850), 227. 
 Breck v. Blanchard (23 N. H. 323, 51 
 
 Am. Dec. 323), 305. 
 Breese v. U. S. TeL Co. (48 N. Y. 133, 
 
 8 Am. Rep. 536), 373. 
 Breig v. C. & W. M. R Co.. (98 Mich. 
 
 222), 230. 
 Brem v. Jamieson (70 N. C. 566), 187. 
 Breon v. Henkle (14 Greg. 494), 86. 
 Bresnahan v. Mich. Cent. R Co. (49 
 
 Mich. 410), 279. 
 Brevoort, Cairo, V. & C. K Co. v. (63 
 
 Fed. Rep. 129, 25 L. R A. 537), 
 
 238. 
 Brewer v. Marshall (19 N. J. Eq. 537), 
 
 140. 
 Brice V. Bauer (108 N. Y. 428, 2 Am. 
 
 St. Rep. 454), 129. 
 Briggs V. Ewart (51 Mo. 245, 11 Am. 
 
 Rep. 445), 198. 
 Briggs, Ex parte (L. R 1 Eq. Cas. 
 
 483), 204 
 Bright V. Bamett & Record Co. (88 
 
 Wis. 339, 16 L. R A. 335, 524), 252. 
 Brightman v. Bristol (65 Me. 436), 17. 
 BriU V. Flagler (23 Wend. 354), 349. 
 
TABLE OF CASES CITED. 
 
 XXVU 
 
 Befermices are to pages. 
 
 Brinsmead v. Harrison (L. R. 6 C. P. 
 
 584), 184 
 Bristol V. Braidwood (2S Mich. 191), 
 
 199. 
 Britton v. Atlanta, etc R Ca (88 N. 
 
 C. 536), 371. 
 Britz, St. Louis, eta E. Ck). v. (72 DL 
 
 256), 230. 
 Broad v. Ham (5 Bing. N. C. 722), 54. 
 Brockeway v. Patterson (73 Mich. 
 
 122, 1 L. R A. 708), 92. 
 Broder v. SaiUard (3 Gh. Div. 693, 17 
 
 Moak, 693), 250. 
 Brodeur v. Valley Falls Ca (16 R L 
 
 448). 22a 
 Bromage v. Prosser (4 R & C 247), 67. 
 Bronson v. Bruce (59 Mich. 467, 60 
 
 Am. Rep. 307), 66, 7a 
 Brooke v. Berry (2 Gill, 83), 210. 
 Brooker v. CoflSn (5 Johns. 188, 4 Am. 
 
 De& 337), 60, 61. 
 Brooklyn B. Ca, Mangam v. (38 N. 
 
 Y. 455), 388. 
 Brooks V. Curtis (50 N. Y. 639), 10 
 Am. Rep. 545), 143. 
 
 V. Scheverin (54 N. Y. 343), 79. 
 Broom, Eastern Counties R Ca v. 
 
 (6 Exch. ^13), 220. 
 Broughton v. McGrew (39 Fed. Rep. 
 
 672, 5 L. R. A. 4(J6), 10, 64, 67. 
 Brown v. Bowen (30 N. Y. 519, 86 
 Am. Dea 406), 141. 
 
 T. Brooks (85 Wis. 290, 21 L. R. 
 A. 255), 344. 
 
 V. Carpenter (36 Vt 638, 63 Am. 
 Dea 603), 130. 
 
 v. Corbin (131 Ind. 455). 171. 
 
 V. Cowell (116 Mass. 461), 314. 
 
 V. Dean (123 Mass. 354), 257. 
 
 V. Davidson (59 Iowa, 461), 166. 
 
 V. Dawson (13 Ad. & EL 624), 120. 
 
 V. Ela (N. H, 30 AtL Rep. 412), 
 180. 
 
 V. Giles (1 C. & P. 118), 137. 
 
 V. Howard (14 Johns. 119), 51. 
 
 V. Hannibal, etc. R Co. (50 Mo. 
 461). 285. 
 
 V. Leacb (107 Mass. 364), 193, 197. 
 
 V. Lent (20 Vt. 529), 255. 
 
 V. Lester (31 Miss. 392), 153. 
 
 Brown v. Perkins (13 Gray, 89), 256. 
 
 V. Postal TeL Cable Ca (111 N. C. 
 187, 17 L. R A. 648), 272, 
 390. 
 
 V. Reno, eta Co. (55 Fed. Rep. 
 339), 173. 
 
 V. Stackliouse (155 Pa. St 583), 
 19. 
 
 V. "Werner (40 Md. 15), 247. 
 
 V. Wootton (Cra Jac. 73), 39. 
 Brown Chemical Co. v. Meyer (139 
 
 U. a 540), 136, 137. 
 Brown Paper Co. v. Dean (123 Mass. 
 
 267), 255. 
 Browne v. Kennedy (5 H & J. 195), 
 
 121. 
 Brownell v. Troy, eta Co. (55 Vt 318), 
 
 357. 
 Browning v. Rittenhouse (38 N. J. 
 
 379), 15a 
 Bruce v. Soule (69 Me. 503), 63. 
 Bruch V. Carter (33 N. J. 554), 176. 
 Brushaber v. Stegemann (33 Mich. 
 
 366), 50. 
 Bryant v. Rich (106 Mass. 180), 37L 
 
 V. Sparrow (63 Me. 546), 120. 
 
 V. TidgeweU (133 Mass. 86), 92. 
 Buck V. Ashley (37 Vt 475), Sa 
 
 L., N. A & C. R Ca (116 Ind. 
 566, 2 L. R A. 520), 46. 
 Buckingham v. Smith (10 Ohio, 288), 
 
 114. 
 Buffalo, etc, Co. v. Standard Oil Ca 
 
 (106 N. Y. 669), 35. 
 Buffalo, eta R Co., Conhocton Stone 
 
 Rd. V. (51 N. Y. 57a 10 Am Rep. 
 
 646), 355. 
 Buist V. McCombe (8 Ont App. 598), 
 
 18. 
 Bullard v. Harrison (4 M. & S. 387), 
 
 115. 
 Bullitt V. Farrar (43 Minn. 8, 6 L. R A 
 
 149), 303. 
 Bulpit V. Matthews (145 HL 345, 33 L. 
 
 R A. 55),'18, 136. 
 Bunnell v. Stern (133 N. Y. 539, 10 L. 
 
 R A. 481), 36a 
 Bm-dick v. Cheadle (36 Ohio St 393, 
 
 30 Am. Rep. 767). 25a 
 Burditt V. Himt (25 Jle. 419), 18a 
 
?xvm 
 
 TABI.J! OF CASES caTED. 
 
 Beferemxs are to pages. 
 
 B^rliam -v. St Louis, etc. R. Ca (50 
 
 Ma 338), 285.. 
 Bulk TT. Webb (33 Mich. 173), 183. 
 Burke v. Cassin (45 CaL 467, 13 Am. 
 Rep. 204), 136. 
 So. Pac. R. Ca v. (60 Fed. Rep. 
 
 704), 228. 
 V. Witherbee (98 N. Y. 562), 226. 
 Burkett v. Griffith (90 CaL 533, 13 L.- 
 
 R. A. 707), 75l 
 Burks V. Shain <3 Bibb, 341), 308. 
 Burliugton, etc. Co., Correll v. (38 
 
 Iowa, 120), 277. 
 Burlington, eta . R. Co., Hawes v. 
 
 "(64 Iowa, 315), 285. 
 Bumap V. Marsh (13 la 535), 34 
 Burnham v. G. T. R. R Co. (63 Me. 
 298, 18 Am. Rep. 220), 42. 
 V. Seaverns (101 Mass. 360, 100 
 
 Am. Dea 133), 31. 
 State V. (9 N. H. 34, 31 Am. Dea 
 317), 69, 70. 
 Bums V. Allen (2 Am. St. Rep, 853), 
 167. 
 v. Bradford (137 Pa. St. 361, 11 
 
 L. R A. 726), 260. 
 V. G. R & LCa (113 Ind. 169), 94. 
 T. Lane (188 Mass. 350), 153. 
 Burroughes v. Bayne (5 H. & N. 396), 
 
 180. 
 Burroughs -V. Houisatonic, etc. R Co. 
 (15 Conn. 124), 245. 
 y. Satterlee (67 Iowa, 396), 240. 
 Burt V. Advertiser Co. (154 Mass. 
 
 238, 13 L. R A. 97), 66, 73. 
 Burtch V. Nickerson (17 Johns. 317, 
 
 8 Am. Dea 390), 63. 
 Burton v. McClellan (3 IlL 434), 245. 
 Bush, Com. V. (112 Mass. 280), 50. 
 ' State V. (122 Ind. 42), 66. 
 T. Wilcox (82 Mich. 315), 193. 
 Busst V. Gibbons (6 a & N. 913), 
 
 54. 
 
 Butcher v. West Va. & P. R Ca (37 
 
 W. Va. 180, 18 L. R. A. 519), 84. 
 
 Butchers' Union, etc. Co. v. Crescent 
 
 City, eta Ca (111 U. U. 758), 3. 
 
 Butler V. Peck (16 Ohio St. 334), 339. 
 
 Pefin. R Ca v. (57 Pa. St 335), 98, 
 
 290. 
 
 Butler, Re (84 Me. 25, 17 L. R. A. 764), 
 
 60. 
 Butterfield v. Ashley (6 Cush. 249), 
 
 83. 
 Buttrick v. Lowell (1 AUen, 172, 79 
 
 Am. Dea 731), 37. 
 Butts V. Wood (37 N. T. 317), 211, 213. 
 Byam v. Collins (111 N. Y. 143, 3 L. 
 
 R. A. 129), 67, 71. 
 Byrne v. Boadle (2 H. & C. 733), 382. 
 Byrom v. Chapin (113 Mass. 308), 125. 
 
 c. 
 
 Cable V. Cooper (15 Johns. 153), 186. 
 Cairo, V. & C. R Ca v. Brevoort (62 
 
 Fed. Rep. 139, 25 L. R A. 527), 
 
 238. 
 Cairo, eta R Co. v. Murray 032 111. 
 
 76), 277. 
 Calder v. Smalley (66 Iowa, 219), 261. 
 CaldweU v. Gale (11 Mich. 77), 255. 
 
 V. Henry (76 Ma 254), 197. 
 
 V. N. J. Steamboat Co. (47 N. Y. 
 282), 270. 
 California Horseshoe Co., MuUin v. 
 
 (Cal., 38 Paa Rep. 535), 228. 
 Call Pub. Ca, West 0. Tel. Co. v. 
 
 (Neb., 27 L. R A, 623), 271, 272. 
 Callahan v. Ingram (132 Ma 355), 69. 
 Cameron v. Reynolds (Cowp, 403)^ 38. 
 Campbell v. Mesier (4 Johns. Ch. 335, 
 8 Am. Dea 570), 142. 
 
 V. Phelps (17 Mass. 244), 38. 
 
 V. Seaman (63 N. Y. 568), 249. 
 
 V. Sugar Ca (62 Me. 552), 35a 
 Canton Co., Flynn v. (40 Md. 312), 376. 
 Canton Surgical & D. Chair Co. v. 
 
 McLain (83 Wis. 93), 64 
 Capel V. Powell (17 C. B., N. S., 743X 
 
 33. 
 Caperton, So. Exp. Co. v. (44 Ala. 101), 
 
 269. 
 Carbeley v. WiUis (7 Allen, 364, 83 
 
 Am. Dea 688), 141. 
 Cardigan v. Page (6 N. H. 182), 164. 
 Carew v. Rutherford (106 Mass. 1, 8 
 Am. Rep. 287), 102. 
 
 West U. Tel. Co. v. (15 Mich. 
 525), 272. 
 
TABLE OF CASES CITED. 
 
 ZXIX 
 
 Btferences are to pages. 
 
 <3arleton v. Redington (21 N. H. 291), 
 
 ■112, 255. 
 Carlin v. Ritter (68 Mi 478), 172. 
 Carnegie Bros. & Co., Robb v. (145 
 
 Pa. St 334^ 14 L. R. A. S29), 243, 
 
 249. 
 Carjjenter v. Carjjenter (45 Ind. 142), 
 31. 
 
 V. Danforth (52 Barb. 581), 2ia 
 
 V. Tarrant (Cas. Temp. Hardw. 
 339), 62. 
 •Carpue v. London, eta R Ca (5 Q. R 
 
 747), 281. 
 Carr t. State (135 Ind. 1, 20 L. R A. 
 
 863), 48. 
 •CarroU v. Miss. R R Ca(88 Ma 239), 
 290. 
 
 Nash viUe, eta R Ca v. (6 Heisk. 
 347), 22a 
 
 V. State (28 Ark. 99, 18 Am. Rep. 
 538), 110. 
 Carslake t. Mapled(»am (2 T. R 473), 
 
 62. 
 Carson v. Mining Co. (5 Mich. 388), 
 
 275. 
 Carstairs v. Taylor (L. R 6 Exch. 
 
 217). 234. 
 Carter v. Chambers (79 Ala. 333), 286. 
 
 V. Hobbs (12 Mich. 53), 365. 
 
 V. Howe Mach. Co. (51 Md. 390, 
 34 Am. Rep. 311), 35. 
 
 T. Kingman (103 Mass. 517), 179. 
 
 V. Towne (98 Mass. 567), 346. 
 Caruth, Mississippi Cent. R Ca v. 
 
 (51 Miss. 77), 342. 
 CarviU v. Jacks (43 Ark. 454), 300. 
 Case o£ Marshalsea (10 Ca 68), 163. 
 Case V. Hoffman (84 Wis. 438, 30 L. 
 R A. 40), 338. 
 
 State V. (77 Ma 347), 153. 
 Casey v. Smith (152 Mass. 294), 287. 
 CashiU V. Wright (6 EL & BL 891), 
 
 267. 
 Cass Ave. esbb. Co., Farris v. (80 Mo. 
 
 335), 388. 
 Cassin v. Delaney (38 N. T. 178), 33. 
 Castle V. Houston (19 Kan. 417, 37 
 
 Am. Rep. 137), 66. 
 CasweU v. Davis (58 N. Y. 333, 17 Am. 
 
 Rep. 233), 136, 137. 
 
 Cate V. Gate (44 N. H. 311), 2. 
 
 V. Cate (50 N. H. 144, 9 Am. Rep. 
 179), 127. 
 Cave V. Mountain (1 M. & G. 257), 
 
 163. 
 Cedar Rapids, etc. R-Co.,-Shively v. 
 
 (74 Iowa, 169), 251. 
 Cent Paa R. Co., McQuilken v. (50 
 
 CaL 71, 384. 
 Cent R Ca, Cooper v. (44 Iowa, 134), 
 385. 
 
 V. Feller (84 Pa. St 236), 384. 
 
 Kinney v. (32 N. J. 407. 34 N. J. 
 513), 290. 
 Cent Union Co. v. Bradbury (106 
 
 Ind. 1), 372. 
 Central Vt R Co., Stebbins v. (54 
 Vt 464), 246. 
 
 Westcott V. (61 Vt 438), 96. 
 Cerveny v. Chicago Daily News Co. 
 
 (139 HL 345, 13 L. R A. 864), 55. 
 Chadeayne v. Robinson (55 Conn. 
 
 345), 337. 
 Chaffin V. Lynch (83 Va. 106, 84 Va. 
 
 884), 73. 
 Chaflln. T. Cont Jersey Works (85 
 
 Ga. 87), 17. 
 Chamberlain v. Masterson (36 Ala. 
 371), 366. 
 
 V. Rankin (49 Vt 133), 198. 
 
 V. West (37 Minn. 54), 267. 
 Chambers v. Baldwin (91 Ky. 131, 11 
 
 L. R A. 545), 89, 392. 
 Champion v. Doughty (18 N. J. 3, 35 
 
 Am. Dea 533), 188. 
 Chandler v. Scott (127 Ind. 226, 10 L. 
 
 R A. 375), 149. 
 Chandos v. Mack (77 Wis. 573, 10 L. 
 
 R A. 207), 117. 
 Chapman v. Pickersgill (3 Wils. 145), 
 56. 
 
 V. Rochester (110 N. Y. 273, 1 L. 
 R A. 296), 239, 243. 
 
 V. Rose (56 N. Y. 137, 15 Am. Rep. 
 401), 198. 
 
 V. State (78 Ala. 463), 47. 
 Charles River Bridge v. Warren 
 
 Bridge (11 Pet 420), 293. 
 Chase v. Chase (15 Nev. 25S), 126. 
 
 V. Mayberry (3 Harr. 286), 364 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 Beferencea are to pages. 
 
 Chase v. Silverstone (62 Me. 175), 339. 
 Chasemore v. Richards (7'H. L. Cas. 
 
 349), 33, 339, 243. 
 Chatigne v. Bergeron (10 La. Ann. 
 
 699), 246. 
 Chesapeake &.O. E. Co., Blaine v. (9 
 W. Va. 353), 286. 
 Rupariv. (88 Ky. 280, 7 L. R. A- 
 316), 387. 
 Chesapeake, etc. Go. v. Bait. etc. Co. 
 
 (66 Md. 899), 372. 
 Cheshire v. Payne (16 B. Mon. 618), 
 
 308. 
 Chicago V. Joney (60 BL 883), 223. 
 V. Major (18 BL 349), 96. 
 V. Starr (42 lU. 174, 89 Am. Dea 
 433), 95. 
 Chicago, etc. R. Co. v. Bayfield (37 
 Mich. 305), 337. 
 V. Boggs (101 Ind. 533), 377. 
 Cream City, etc. Co. v. (63 Wis. 
 
 93), 389. 
 Curry v. (43 Wis. 665), 377, 384 
 Dimick v. (80 lU. 388), 377. 
 V. Doyle (60 Miss. 977), 94. 
 Hanlin v. (61 Wia 515), 237, 
 HUts V, (55 Mich. 437), 228. 
 V. Jackson (55 BL 492, 8 Am. Rep. 
 
 661), 229. 
 V. Lbeb (118 la 303), 357. 
 McCarthy v. (18 Kan. 46, 36 Am 
 
 Rep. 743), 94. 
 Morris v. (65 Iowa, 737, 54 Am, 
 
 Rep. 39), 94 
 Naylor v. (53 Wis. 661), 332. 
 V. People (67 BL 11, 16 Am. Rep. 
 
 599), 268. 
 Piatt V. (74 Iowa, 127), 258. 
 Ryan v. (60 IIL 171, 14 Am. Rep. 
 
 32), 223. 
 Simons v. (110 BL 340), 336. 
 Spaulding v. (30 Wis. 110), 345. 
 T. Swett (45 111. 197, 93 Am. Dec. 
 
 306), 225. 
 V. West (125 BL 330), 220. 
 V. Wilcox (138 111. 870, 21 L. R. 
 
 A. 76), 288. 
 V. Williams (55 BL 185, 8 Am. 
 
 Rep. 641), 103. 
 T, Wason(63 BLJ67), 370. 
 
 Chicago, B. & K. C. R. Co., Willitts 
 V. (88 Iowa, 281, 21 L. R. A.. 608), 
 338. 
 Chicago, B. & Q. R. Co. v. Dunn (53; 
 BL 360, 4 Am. Rep. 606), 80> 
 V. Honey (63 Fed. Rep. 39, 36 L- 
 R. A. 43), 79. 
 * Honey v. (59 Fed. Rep. 423), 80., 
 Woolsey v. (39 Neb. 798, 35 L. 9. 
 A. 79), 270. 
 Chicago & L B. R. Co. v. Hall (135. 
 
 Ind. 91, 23 L. R. A. 331), 113. 
 Chicago & N. W. R. Ca, Haetsch v. 
 
 (87 Wis. 304), 287. 
 Chicago, C. C. & St. L. R. Co. v. 
 Baddeley (150 BL 338), 95. 
 Marvin v. (79 Wis. 140, 11 L. K 
 A, 508), 345. 
 Chicago, M. & St P. R Co., Mercer 
 V. (S. Dak, 35 L. R. A. 81), 
 290. 
 White V. (1 S. Dak. 336, 9 L. R. 
 A. 835), 345. 
 Chicago, R. L & P. R. Co,, Ford v. 
 
 (Iowa, 34 L. R. A. 657), 380. 
 Chicago, St. P. & K. C. R Co., Doyle 
 V. (77 Iowa/ 607, 4 L. R. A. 430), 
 381. 
 Chicago Daily News Co., Cervenyr. 
 
 (139 BL 345, 13 L. R. A. 864), 65. 
 C. & W. M. R. Co.. Breig v. (98 Mich. 
 323), 33a 
 Van Auken v. (96 Mich.«307, 22 
 L. R. A. 33), 46. 
 Chicott, People v. (16 Mich. 283, 97 
 
 Am. Dec. 141), 109. 
 Child V. Boston (4 AUen, 41, 81 Am. 
 
 Dec. 680), 156. 
 Childers v. San Jose, etc. Pub. Co. 
 
 (CaL, 38 Pac. Rep. 903), 67. 
 Childs V. K C, St. J. & C. a R. Co. 
 
 (117 Mo. 414), 134 
 Chilton V. St. Louis & M. R. Ca (114 
 
 Mo. 88, 19 L. R. A. 369), loa 
 Christie v. Griggs (2 Camp. 79), 281. 
 Christopherson v. Bare (11 Q. B. 473), 
 
 48. 
 Christy v. Smith (23 Vt. 663), 153. 
 Chrysler v. Canaday (90 N. Y. 272, 
 43 Am. Rep. 166), 195. 
 
.TABLE OF CASES CITED. 
 
 XXXI 
 
 Beferences are to pages. 
 
 Church V. Lee (5 Johns. 348), 1& 
 
 State V. (63 N. C. 15), 47. 
 Churchill v. Holt (131 Mass. 67, 41 
 Am. Rep. 191), 4a 
 V. Hulbert (110 Mass. 43, 14 Am. 
 Rep. 578), 50. 
 Cielfleld v. Browning (39 N. Y. Supp. 
 
 710), 235. 
 Cincinnati v. Stone ^ Ohio St 88), 
 
 334. 
 Cincinnati, L, St L. & C. R. Ca v. 
 Cooper (130 Ind. 469, 6 L. R. A. 
 341), 23. 
 Cincinnati, N. O. & T. P. R. Co. v. 
 
 Clark (57 Fed. Rep. 125), 239. 
 Cincinnati, N. O. & T. R. R Co., Jor- 
 dan's Adm'r v. (89 Ky. 40), 95, 97. 
 Citizens' Loan, eta Assa v. Friedley 
 (123 Lid. 143, 7 L. R. A. 669), 274 
 Citizens' St R Co. v. Twiname (131 
 Lid. 375, 7 L. R. A. 353), 80, 270. 
 City of Goshen v. England (119 Ind. 
 
 368, 5 L. R A. 253), 288. 
 City Nat Bank v. Kusworm (26 L. 
 
 R A. 48), 205. 
 Civil Rights Cases (109 0. S. 3), 104 
 Claflin V. Beaver {55 Fed. Rep. 576), 18. 
 Clancey v. Byrne (56 N. Y. 129, 15 
 
 Am. Rep. 391), 255. 
 Clap, Com. V. (4 Mass. 169), 73. 
 Clapp V. GUdden (39 Me. 448), 178. 
 Clarendon Land, etc. Co. v. McClel- 
 land Bros. (86 Tex. 179, 23 L. R. 
 A. 105), 137. 
 Clark V. Baird (9 N. Y. 183), 196. 
 
 V. Bayer (33 Ohio St 299, 30 Am. 
 
 Rep. 593), 82. 
 Cincinnati, N. O. & T. P. R. Co. 
 V. (57 Fed. Rep. 135), 229. 
 V. Cleveland (6 Hill, 344), 56. 
 V. Dasso (34 Mich. 86), 117. 
 V.Dickson (EL, BL & EL 148, 
 6 C. B., N. S., 453), 200, 304 
 v. Downing (55 Vt 259, 45 Am. 
 
 Rep. 612), 47. 
 V. Everhart (63 Pa. St 347), 200. 
 V. Fry (8 Ohio St 358. 72 Am. 
 
 Dec. 590), 224 
 V. Holmes (1 Doug., Mich., 390), 
 16a 
 
 Clark V. Miller (54 N. Y. 528), 148, 153. 
 
 V. Molyneux (L. R. 3 Q. B. D. 337),. 
 68. 
 
 V. N. Y. P. & S. R. Co. (160 Mass. 
 39), 94 
 
 V. Peckham (9 R L 455), 259. 
 
 V. Union F. Lis. Co. (40 N. H. 
 333, 77 Am. Dec. 721), 216. 
 
 V. Wilmington & W. R Co. (109 
 N. C. 430, 14 L. R A. 749),. 
 285. 
 Clarke v. May (2 Gray, 410), 167. 
 Clay V. Willan (1 H. BL 298), 284 
 Clayton v. Scott (45 Vt 386), 52. 
 Clem, Terre Haute & L R Co. v. (133; 
 
 Lid. 15, 7 L. R. A. 588), 280. 
 Clement v. West U. TeL Co. (137 
 
 Mass. 463), 373. 
 Clements v. La. eta Ca (44 La. Ann. 
 
 693, 16 L. R A. 43), 380, 281. 
 
 Cleveland, eta R Co., Colton v. (67 
 
 Pa. St 311), 289. 
 
 V. Rowan (66 Pa. St 393), 284 
 Cleveland, C. & C. R Co., Ker- 
 
 whacker v. (3 Ohio St 172, 63 
 
 Am. Dea 246), 136. 
 Cleveland Rolling Mill Co. v. Corri- 
 
 gan (46 Ohio St 283, 3 L. R A. 
 
 385), 227, 288. 
 Clinton v. Myers (46 N. Y. 511, 7 Am. 
 
 Rep. 373), 242. 
 Closson V. Staples (43 Vt 209, 1 Am. 
 
 Rep. 316), 56. 
 Cloud V. Hamilton (11 Humph. 104, 
 
 53 Am. Dea 778), 13. 
 Clow V. ChapuGan (Mo., 26 L. R A. 
 
 412), 81. 
 Clute V. Wiggins (14 Johns. 175), 267. 
 Clutter, Ohio, eta R Ca v. (82 IlL 
 
 123), 346. 
 Coates V. Merrick Thread Ca (149 
 
 U. S. 562), 136. 
 Cobb V. Davenport (33 N. J. 369, 33 
 
 N. J. 223), 121, 122. 
 Cochran v. Flint (57 N. H. 514), 171. 
 Cbckcroft v. Smith (11 Mod. 43), 49. 
 Codman v. Evans (5 Allen, 308), 117. 
 Coe V. Piatt (6 Exch. 753), 277. 
 Coflan V. Coffin (4 Mass. 1, 3 Am. Dec 
 
 189), 69. 
 
3XXU 
 
 TABLE OF OASES CITED. 
 
 BefereiKta are to paget. 
 
 Coffin V. DonneUy (L. R. 6 Q. R 307), 
 69. 
 
 V. Thompson (97 Mioh. 188, 21 L. 
 E. A. 662), 12. 
 Coger V. N. W. Union Packet Co. (37 
 
 Iowa, 145), 104. 
 -Coggs V. Bernard (LdL Raym. 909, 1 
 
 Sm. L. Cas. 369), 6, 264, 268. 
 Cohen v. New York (113 N. Y. 533, 4 
 
 L. R. A. 406), 361. 
 ■Colby V. McGee (48 lU. App. 294), 61. 
 Cole V. Cassidy (188 Mass. 437), 302. 
 
 V. Curtis (16 Minn. 182), 54 
 
 V. Drew (44 Vt. 49), 116. 
 
 V. Turner (7 Mod. 149), 48. 
 Coles V. Treoothick (9 Ves. 234), 214 
 <!oleman, Mich. Cent R. Ca v. (28 
 
 Mich. ,440), 345. 
 Collamore v. Gillis (149 Mass. 578, 5 
 
 L. R A. 150), 171. 
 'Collam, Ohio & M. R Co. v. (73 Ind. 
 
 261, 38 Am. Rep. 134), 228. 
 ■CoUberg, Com'rs v. (119 Mass. 350, 20 
 
 Am. Rep. 328), 48. 
 Collins V. CampbeU (R 1, 31 AtL 
 Rep. 882), 54 
 
 V. Hayte (50 Hi 337), 56. 
 -CoMck V. Swinburne (105 N. Y. 503), 
 
 259. 
 Colton V. Cleveland, etc. R. Ca (67 
 Pa. St. 211), 389. - 
 
 V. Onderdonk (69 Cal. 155), 353. 
 ■Columbia Mill Co. v. Alcorn (150 
 
 U. S. 460), 187. 
 <I!olunibus Gas Ca v. Freeland (13 
 
 Ohio St. 392), 250. 
 Columbus, eta R. Co. \. Troesch (68 
 
 111. 545, 18 Am. Rep. 578), 228. 
 Columbus & Hocking, etc. Co. v. 
 
 Tucker (48 Ohio St. 41,12 L. R. 
 
 A. 577). 343. 
 ■Colyar v. Taylor (Cold. 373), 364 
 •Comerford V. Dupuy (17 Cal 308), 
 
 12i6. 
 ■Commissioners v. Bank (32 Ohio St 
 194). 275. 
 
 V. Blanding (3 Pick. 304, 15 Am. 
 Dea 214), 72. 
 
 V. Bush (112 Mass. 280), 50. 
 
 V. Clap (4 Mass. 169), 73. 
 
 Commissioners v. CoUberg (119 Mass. 
 350, 20 Am. Rep. 328), 48. 
 V. Duckett (30 Mi 468), 378. 
 Com'rs of Multnomah Co., White v. 
 (13 Ore. 317, 57 Am. Rep. 843), 12. 
 Com., Danville, eta R. Ca v. (73 Pa. 
 St 29), 100, 257. 
 V. Hamilton Mfg. Ca (130 Mass. 
 
 383), 99. 
 Hawkins v. (14 B. Mon. 395, 61 
 
 Am. Dea 147), 116. 
 V. McAfee (108 Mass. 458, 11 Am. 
 
 Rep. 383), 77. 
 V. Malone (114 Mass. 295), 49. 
 V. Manchester (152 Mass. 330, 9 
 
 L. R. A. 236), 122. 
 V. Matthews (153 Pa. St 166, 18 
 
 L. E. A. 761), 45. 
 V. Perry (139 Mass. 198), 351. 
 V. Stratton (114 Mass. 303, 19 
 
 Am. Rep. 350), 48. 
 T. Waldman (140 Pa. St 89, 11 
 L. R A. 563), 45. 
 Compton V. Wilder (40 Ohio St 130), 
 
 57. 
 Condict V. G. T. R Ca (54 N. Y. 500), 
 
 290. 
 Congress, eta Co. v. High Rock, eta 
 Co. (45 N. Y. 391, 6 Am. Rep. 82), 
 136. 
 Conhocton Stone Road v. Buffalo, 
 eta R. Ca (51 N. Y. 573, 10 Am. 
 Rep. 646), 255. 
 Conklin v. Thompson (29 Barb. 218), 
 
 246. 
 Conn. Mut Ins. Co., Gartside v. (76 
 
 Mo. 446), 217. 
 Connell v. West U. TeL Co. (116 Nev. 
 
 34, 20 L. R A. 172), 272. 
 Connelly v. Woods (31 Kan. 359), 163. 
 Connoly v. Boston (117 Mass. 64, 19 
 
 Am. Rep. 396), 45. 
 Conroy, Repub. Co. v. (Cola, 38 Paa 
 
 Rep. 433), 67. 
 Consolidated Coal Co. v. Haenni (86 
 
 Me. 221), 227, 228. 
 Constitution Pubi Co. v. Way (Ga., 
 . 21 S. E. Rep. 139), 75. 
 Consumers' Ice Mfg. Co., Mattise v. 
 (La., 16 Sa Rep. 400), 230. 
 
TABLE OF CASES CITED. 
 
 XXXIU 
 
 Jieferences are to pages. 
 
 Cont Jersey Works, Chaflin v. (85 
 
 Ga. 37), 17. 
 Contoocook "Valley Go., Henniker v. 
 
 (29 N. H. 146), 375. 
 Converse v. Blumrich (14 Mich. 109), 
 199. 
 V. Hood (149 Mass. 471, 4 L. R. A. 
 531), 203. 
 "CIonybeaJe^ New Brunswick R. Co. 
 
 V. (9 H. L. Cas. 711), 195. 
 
 'Cook v. Champlaip, eta Co. (1 Denio, 
 
 91), 124. 
 
 V. Sherman (30 Fed. Rep. 175), 213. 
 
 V. Stearns (11 Mass. 533), 113, lia 
 
 <3ooley v. Golden (117 Mo. 83, 31 L. 
 
 R. A, 300), 118. 
 Codlidge v. "Williams (4 Mass. 140), 
 
 ' 133. 
 Coombs V. New Bedford Cordage Co. 
 (103 Mass. 572, 3 Am. Rep. 
 506), 236: 
 V. Purrington (43 Me. 333), 260. 
 Coon V. Moffitt (3 N. J. L. 583, 4 Am. 
 
 Dea 393), 85. 
 Cooper V. Butler (103 Pa. St 413), 
 330. 
 
 V. Cent R. Co. (44 Iowa, 134),.385. 
 V. Chitty (Burr. 30), 177. 
 Cin., L, St L. & C. R. Co. v. (120 
 Ind. 469, 6 L. R. Ai 341), 2a 
 v. Greeley (1 Den. 347), 134 
 Inter. & G. N. R. Co. v. (Tex. Civ. 
 App., 80 S. "W. Rep. 470), 
 321. 
 V. Johnson (81 Mo. 483), 37. 
 V. Johnson (143 Mass. 108), 170. 
 V. People (13 Colo. 837, 6 L. R A. 
 
 430), 167. 
 V. Phipps (24 Greg. 357, 33 L. R. 
 , A. 836), 68, 69. 
 
 V. Randall (58 HL 24), 350. 
 Sunbury, etc. R. Co. v. (33 Pa. 
 St 278), 392. 
 Cooper, In re (33 Vt 253), 166. 
 Coppins V. N. Y. C. & H. R. Ca (133 
 
 N. T. 557), 328. 
 Corcoran v. Holbrook (59 N. T. 517, 
 
 17 Am. Rep. 369), 339. 
 Cordell v. N. Y. etc. E. Co. (75 N. Y. 
 330), 93. 1 
 
 Com, Toledo, etc. R Ca v. (71 111. 
 
 493), 245. . 
 Cornell V. Barnes, 7 Hill, 35), 186. 
 Corner v. Macintosh (48 Md. 374), 
 
 187. 
 Correll v. Burlington, eta R Co. (38 
 
 Iowa, 120), 277. 
 Corrigan, Cleveland Rolling Mill Ca 
 V. (46 Ohio St 383, 3 L. R 
 A. 385), 227, 288. 
 
 V. "Union Sugar Refinery Co. (98 
 Mass. 577), 282. 
 Cosgrove v. Ogden (49 N. Y. 255, 10 
 
 Am. Rep. 361), 221, 288. 
 Coskery v. Nagle (83 Ga. 696, 6 L. R 
 
 A, 483), 267. 
 Cote V. Murphy (159 Pa. St 420, 23 1* 
 
 R A. 135), 103. 
 Cottingham v. McKay (86 N. C. UV), 
 
 144 
 Cottrill v. Myrick (13 Me. 333), 133. 
 Coughtry v. Globe Woolen Co. (56 
 
 N. Y. 134, 15 Am. Rep. 387), 225. 
 Coulson V. Allison (3 De. G., F. & J. 
 
 521), 308. 
 County Com'rs v. Gibson (36 Md. 
 
 339), 156. 
 Coventry v. Barton (17 Johns. 142, 8 
 Am. Dea 376), 42. 
 
 Farmers' Turnpike Road v. (10 
 Johns. 889), 375. 
 Coward v. Baddely (4 H. & N. 878), 
 
 48. 
 Cowden v. Wright (34 Wend, 429, 35 
 
 Am. Deo. 633), 83. 
 Cowley V. Pulsifer (137 Mass. 393, 50 
 
 Am. Rep. 318), 7a 
 Cox, 111. Cent R. Ca v. (31 IlL 20), 
 222. 
 
 V. Leviston (63 N. H. 283), 112. 
 Craig V. Burnett (32 Ala. 728), 16a 
 CrandaU v. Nevada (6 Wall. 35), 139. 
 Crane v. Dwyer (9 Mich. 350, 80 Am. 
 Dea 87), 170. 
 
 v. Waters (10 Fed. Rep. 619), 7a 
 Craven v. Smith (89 Wis. 119), 226. 
 Cream City, etc. Co. v. Chicago, etc. 
 
 R. Ca (68 Wis. 93), 389. 
 Crepps V. Durden (1 Sm. L. C. 911), 
 
 16a 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 Beferences are to pages. 
 
 Crescent v. Anderson (114 Pa. St. 643), 
 
 289. 
 Crescent City, etc. Co., Butchers' 
 
 Union, etc. Co. v. (Ill U. S. 
 
 758), 3. 
 Cresson v. Stout (17 Johns. 116), 187. 
 Critchfield v. Humbert (39 Pa. St. 
 
 437, 80 Am. Dec. 533), 121. 
 Croasdale, Del. State F. & M. Ins. Co. 
 
 V. (6 Houst. 81), 73. 
 Crocker v. GuUifer (44 Ma 491, 69 
 Am. Dec. 118), 180. 
 
 V. New London, etc. E. Co. (24 
 C6nn. 349), 220. 
 Crosby t. JSessey (49 Me. 539), 356. 
 
 V. Wadsworth (6 East, 603), 122. 
 Cross V. Grant (63 N. H. 675, 13 Am. 
 
 St Eep. 607), 78. 
 CroweU v. New Orleans, etc. R . Co. 
 
 (61 Miss. 631), 130. 
 Crowley v. Christensen (137 IT. S.), 86. 
 Crown V. Orr (140 N. Y. 450), 336. 
 Crudup, 111. Cent. R. Ca v. (63 Miss. 
 
 291), 97. 
 Cruikshank v. Gordon (118 N. Y. 
 
 178), 62. 
 Cruse V. Aden (137 Hi 331, 3 L. R. A. 
 
 337), 91. 
 Cuff V. Newark, eta R. Co. (35 N. J. 
 
 17, 10 Am. Rep. 205), 334 
 Cullen, Austin R T. R Ca v. (Tex. 
 Civ. App., 30 S. W. Rep. 
 578), 98. 
 
 Austin R. T. E. Co. v. (Tex. Civ. 
 App., 39 S. W. Rep: 356), 
 97. 
 Cullum V. Branch Bank (4 Ala. 31, 
 
 37 Am. Dec. 725), 196. 
 Cumberland, eta Corporation v. 
 
 Hitchings (59 Me. 306), 375. 
 Cumberland V. R Co. v. McLana- 
 
 han (59 Pa. St. 33), 114 
 Cuming v. Railway Co. (109 N. Y. 
 
 95), 82. 
 Cumming v. Prang (24 Mich. 514), 
 
 117. 
 Cummings, Grand Trunk R. Co. v. 
 
 (106 tr. S. 700), 339. 
 Curry v. Chicago, eta R. Co. (43 Wis. 
 
 663), 277, 284 
 
 Cnrtiss v. Ayrault (47 N. Y. 73), 237. 
 Gushing v. Adams (18 Pick. 110), 116. 
 Cutter V. Bonney, 30 Mich. 259), 366. 
 
 D. 
 
 Dain v. Wyckoff (18 N. Y. 45, 73 Am. 
 
 Dea 493), 84 
 Daintry v. Brocklehurst (3 Exch. 
 
 207), 121. 
 Dale Ca v.'Gunter (46 Ala. 118), 8.. 
 Daley v. Norwich, eta E. Ca ^ 
 
 Conn. 591), 287. 
 Dallas V. Sellers (17 Ind. 479. 79 Am. 
 
 Dea 489), 79. 
 Dame v. .Dame (38 N. H. 429, 75 Am. 
 
 Dea 195), 180. 
 Daniels v. Pond (21 Pick. 367), 124 
 Danielson, Northwestern Fuel Co. v. 
 
 (57 Fed. Eep. 915), 327, 329. 
 Dann v. Cudney (13 Mich. 339, 87 
 
 Am. Dea 755). 192. 
 Danville, etc. E. Co. v. Com. (73 Pa. 
 
 St 29), 100, 257. 
 Dargan v. WaddiU (9 Ired. 244), 250. 
 Darling v. Boston, eta E. Ca (131 
 
 Mass. 118). 276. 
 Darlington v. Mayor of New York 
 
 (31 N. Y. 164, 88 Am. Dea 348), 
 
 115. 
 Daugherty, West U. TeL Ca v. (54 
 
 Ark. 21, 11 L. R A, 103), 373, 291. 
 Davenport v. Euckman (37 N. Y. 
 
 568), 260, 261. 
 David V. Southwestern R Co. (41 
 
 Ga. 228), 96. 
 Davis v. Brown (27 Ohio St 336), 61. 
 
 V. Buffum (51 Me. 160), 183. 
 
 V. GetcheU (50 Me. 602), 241. 
 
 V. Henry (4 W. Va. 571), 20a 
 
 V. Houghtelin (33 Neb. 583. 14 L. 
 R A. 737), 220. 
 
 V. Marxhausen (Mich., 61 N. W. 
 Eep. 504), 75. 
 
 V. Montgomery (51 Ala. 139, 2S 
 Am. Eep. 545), 259. 
 
 V. St L., I. M. & S. R Co. (53 Ark. 
 117, 7 L. R A. 283), 95, 226. 
 
 V. Shepstone (L. R 11 App. Cas. 
 187), 73. 
 
TABLE OF CASES CITED. 
 
 XXXT 
 
 Beferences are to pages^ 
 
 Da-vis V. Stuart (47 La. Ann. — ), 
 55. 
 V. Thompson (13 Me. 209), 173. 
 V. "Wilson (65 IlL 535), 186. 
 V. Williams (10 Q. B. 175), 85. 
 V. Winslow (51 Me. 264), 342. 
 Dawe V. Morris (149 Mass. 188, 4 L. 
 
 K. -A. 158), 196. 
 Dawkins v. Eokeby (4 F. & F. 806, 
 li. R 7 H. L. 744), 69, 160. 
 V. liord Rokeby (L. R. 8 Q. R C. 
 255), 68. 
 Dawson v. Lee (83 Kj. 49). 105. 
 V. Watson (6 Houst 30), 19. 
 Day V. Akeley Lumber Co^ (54 Minn. 
 
 523, 23 L. R, A. 512), 245. 
 Dayton v. Adkisson (45 N. J. Eq. 603, 
 
 4 L. R. A. 488), 14. 
 Dean, Brown Paper Ca v. (123 Mass. 
 267), 255. 
 V. Negley (41 Pa. St 312, 80 Am. 
 
 Dec 620), 209. 
 V. Pa. R Co. (129 Pa. St 514, 6 L. 
 
 R A. 143), 289. 
 V. Peel (5 East 49), 84 
 Dearborn v. Union Nat Bank (58 
 
 Me. 273), 182. 
 Decker v. Hardin (5 N. J. 579), 193. 
 De Crespigney v. Wellesley (5 Bing. 
 
 393), 75. 
 Deere v. Weir-Shugart Co. (Iowa, 59 
 
 N. W. Rep. 355), 143. 
 De Forrest v. Wright (2 Mich. 368), 
 
 224 
 DeL, L. & W. R Co., Forepaugh v. 
 (128 Pa. St 217, 5 L. R A. 
 508), 6. 
 Grosso V. (50 N. J. L. 317), 9, 95. 
 DeL & H. C. Co., Howard v. (40 Fed. 
 
 Rep. 195, 6 L. R A. 75), 96, 98. 
 DeL etc. R Co., Mulherrin v. (81 Pa. 
 St 366), 385. 
 Roimds T. (64 N. T. 139, 21 Am. 
 
 Eep. 597), 320, 221. 
 Taber v. (71 N. Y. 489), 271. 
 V. Trautwein (52 N. J. L. 169, 7 
 L. R A. 435, 19 Am. St 
 Rep. 443), 46, 370. 
 DeL State F. & M. Ins. Co. v. Croas- 
 dale (6 Houst 181), 7a 
 
 Delahoussaye v. Judice (13 La. Ann. 
 
 587), 337. 
 Delaney v. Errickson (10 Neb. 492), 
 126. 
 V. Kaetel (81 Wis. 353), 62. 
 Delegal v. Highley (3 Bing. N. C. 
 
 950), 54 
 Democrat Pub. Co. v. Jones (88 Tex. 
 
 302), 74 
 Dennick v. Railroad Co. (103 U. S. 11), 
 
 94 
 Dennis v. Clark (3 Cush. 347, 48 Am. 
 
 Dec. 671), 82. 
 Dent V. Bennett (4 MyL & Cr. 269), 
 
 317. 
 Denver Tramway Co. v. Owens - 
 
 (Colo., 36 Pac. Rep. 818), 316. 
 De Pew V. Robinson (95 Ind. 109), 63. 
 Derby, PhUa. etc. R Co. v. (14 How. 
 
 468), 321. 
 Derwort v. Loomer (21 Conn. 245), 
 
 270. 
 Des Moines v. Hall (34 Iowa, 234), 
 
 117. 
 Detroit v. Blakeby (31 Mich. 84), 360. 
 V. Carey (9 Mich. 165), 360. 
 V. Rush (82 Mich. 533, 10 L. R A. 
 171), 109. 
 Detroit Copper, etc. Co., Kean v. (66 
 
 Mich. 377), 333. 
 Detroit, eta Co., Atkinson v. (46 
 
 Mich. 341), 74 
 Detroit eta R Co., Patterson v. (56 
 
 Mich. 173), 258. 
 Detroit Free Press Co., McAUister t. 
 (85 Mich. 453), 66. 
 Park V. (73 Mich. ,560, 1 L. R A. 
 599), 72, 73, 74 
 Detroit White Lead Works, People 
 V. (83 Mich. 471, 9 L. R A. 733), 
 251. 
 Devinney, Pittsburg, eta R Co. v. 
 
 (17 Ohio St 197), 223. 
 Dewey, Flint, eta Co. •v, (14 Mich. 
 
 47T0, 313. 
 Dewire v. Boston, etc. R Co. (148 
 
 Mass. 443, 3 L. R A. 166), 270. 
 Dexter v. Cole (6 Wis. 319, 70 Am. 
 Dec. 465), 175. 
 V. Spear (4 Mason, 115), 65. 
 
XXXVl 
 
 TABLE OF OASES CITED. 
 
 Beference* are to pages. 
 
 Dicas V. Lord Brougham (6 C. & P. 
 
 249), 160. 
 Dickinson v. Graiid Junction Canal 
 
 Co. (7 Exch. 282). 240. 
 Dicks V. Brooks (L. R 15 Ch. D. 22), 76. 
 Dietz V. Langfitt (63 Pa. St 234), 55. 
 Dillon, State, Lamar v. (32 Fla. 545, 
 
 22 L. E. A, 124), 12. 
 Dimes v. Proprietor, etc. Grand J. C. 
 
 (3 H. L. C. 787, 16 Eng. L. & 
 
 Eq. 63), 161 
 Dimick v. Chicago, etc. R. Ca (80 la 
 
 338), 277. 
 District Ct., State v. (Minn., 63 N. W. 
 
 Rep. 831), 166, 167. 
 Dixon V. Bell (5 M. & S. 198), 177, 246. 
 
 V. NiccoUs (39 111. 372, 89 Am. 
 Dec. 312), 17a 
 
 V. Pluns (98 CaL 384^ 20 L. R. A. 
 698), 282. 
 
 State V. (75 N. G 275), 49. 
 Dobson V. Blackmore (9 Q. B. 991), 258. 
 
 V. Cothran (34 S. a 518), 82. 
 Docking v. FrazeU (38 Kan. 420), 171. 
 DodgB V. Boston, eta Co. (148 Mass. 
 207, 2 L. R. A. 83), 269. 
 
 T. Stacy (39 Vt. 558), 141. 
 
 V. Woolsey (18 How. 831), 211. 
 Doe V. Roe (82 Me. 503, 8 L. R A. 
 
 833), 81. 
 Dole T. Erskine (35 N. H. 503), 49.^ 
 
 V. Lyon (10 John& 447, 6 Am. 
 Deo. 346), 43, 75. 
 Domestic, etc. Co. v. Watters (50 Ga. 
 
 573), 267. 
 Donaghue v. Gaffy (53 Conn. 43), 64. 
 Donaldson v. FarweU (93 U. S. 631), 
 
 19a 
 Donneghan v. Erhardt (119 N. Y. 
 
 468, 7 K R A. 527), 277. 
 . DonneU v. State (48 Miss. 661, 12 Am. 
 
 Rep. 375), 104 
 Donohoe y. Richards (38 Me. 376), 105. 
 Donovan v. Donovan (9 Allen, 140), 
 
 88. 
 Dooley, State v. (121 Mo. 591), 17. 
 Doolittle V. Shaw (la., 26 L. E. A. 
 
 366), 180. 
 Doremus v. Howard (28 N. J. 390), 
 
 17a 
 
 Dorr v. Mickley (16 Minn. 20), 154 
 Dotton V. Albion (50 Mich. 129), 260. 
 Doty V. Heth (52 Miss. 530), 17a 
 Dougherty v. Miss. etc. R Co. (97" 
 
 Mo. 647), 269. 
 Douglas V. Douglas (Idaho, 36 Pac 
 Rep. 934), 61. 
 
 V. Matting (29 Iowa, 438, 4 Am^ 
 Rep. 238), 198. 
 Douglass, Auburn, eta P. R Ca v^ 
 (9 N. Y. 444), 29a 
 
 Louisville, N. O. & T. R Ca v^ 
 (60 Miss. 723, 30 Am. St. 
 Rep. 582). 220. 
 
 V. Yallop (Burr. 722), 152. 
 Doulson V. Matthews (4 T. R 503), 18a 
 Dowd V. Tucker (41 Conn. 197), 196. 
 Downer v. Smith (32 Vt. 1, 76 Am. 
 
 Deo. 148), 204 
 Downer, etc. Co., Wellington v. (104 
 
 Mass. 64), 246. 
 Doyle V. Chicago, St. P. & K. C. R. 
 Ca (77 Iowa, 607, 4 L. IL. 
 A. 420), 281. 
 
 Chicago, eta Ca v. ^0 Miss. 977),. 
 ' 94 
 
 V. Insurance Co. (95 U. S. 535),. 
 292. 
 Drake v. Lady Ensley, eta Ca (Ala.,. 
 24 L. R A. 64), 248. 
 
 V. Wells (11 Allen, 141), 112. 
 Driggs V. Burton (44 Vt 124), 54 
 Dryburg, N. Y. eta TeL Ca v. (35 
 
 Pa. St 298), 390. 
 Dubois V. Campau (28 Mich. 304), 121. 
 Dubuque, eta R Ca, Tomlin v. (32^' 
 
 Ind. 106), 118. 
 Duchess of Kingston's Case (20 St. 
 
 Tr. 573, 2 Sm. L. C. 734), 217. 
 Duckworth v. Johnson (4 H. & N.- 
 
 653), 97. 
 Dudley v. Briggs (141 Mass. 582), 75.- 
 
 V. Kennedy (63 Me. 465), 258. 
 Duffles V. Duffles (76 Wia 374 8 L.- 
 
 R A. 420), 81. 
 Dufour, So. Pac. R Co. v. (95 CaL 615,. 
 
 19 L. R A. 92), 339, 240. 
 Duluth, S. S. & A. R Co., Freeman, 
 
 V. (74 Mich. 86, 3 L. R A. 594),. 
 
 285, 287. 
 
TABLE OF (3ASES CITED. 
 
 XXXVll- 
 
 Seferenees are to pages. 
 
 Dumont v. Kellogg (39 Mioh. 430), 
 
 340,242. 
 Dunbar v. Glenn (43 Wis. 118, 24 Am. 
 
 Rep. 395), 137. 
 Duncan v. Spear (11 Wend. 54), 178. 
 Dungan v. Mut Ins. Ca (38 Md. 343), 
 
 177. 
 Dunham v. Powers (42 Vt 1), 69. 
 Dunlap V. Knapp (14 Ohio St.. 64). 
 
 156. 
 Dunn, C, B. & Q. R Ca v. (53 IlL 360, 
 
 4 Am. Rep. 606), 80. 
 Dunphy- v. Traveller, etc. Asso. (146 
 
 Mass. 495), 211. 
 Dupaquier, State v. (46 La. ^jib. 557, 
 
 26 L. R A. 163), 107. 
 Duntley v. Boston, eta R Ca (N. BL, 
 
 9 L. R. A. 449), 208. 
 Durand v. Hollins (4 Blatch. 451), 
 
 393. 
 Durden v. Bamett (7 Ala. 169), 83. 
 Durgin v. Am. Exp. Co. (N. H., 9 L. 
 
 R A. 453), 289. 
 Du^in V. Cowdry (33 Vt 631), 130. 
 Dusy V. Helm (59 CaL 188), 187. 
 Dwight ▼. Blackmar (3 Mich. 330, 57 
 
 Am. Dea 130), 314. 
 
 E. 
 
 Eager v. Grim wood (1 Ex. 61), 85. 
 Eagle Mills Ca, New Salem v. (138 
 
 Mass. 8), 256. 
 Eames v. Whittaker (133 Mass. 343), 
 
 69. 
 Earhart v. Youngblood (37 Pa. St. 
 
 331), 129. 
 Earl V. Camp (16 Wend. 562), 185. 
 
 V. De Hart (13 N. J. Eq. 380), 338. 
 
 V. Van Alstine (8 Barb. 630), 130. 
 Earl of Lonsdale v. Nelson (2 B. & 
 
 C. 303), 17. 
 Eaton V. Winnie (20 Mich. 156, 4 Am. 
 
 Rep. 377), 113, 194, 199. 
 Eaton, etc. Ca v. Avery (83 IlL 31), 
 
 200. 
 East Aia. Ca, Young v. (80 Ala. 100), 
 
 183. 
 East Counties R Co., Piggott v. (3 C. 
 
 B. 229), 280. 
 
 East India Co., Willi^rms v. (3 East,, 
 
 193), 346. 
 East R R Ca, Gilman v. (10 Allen,. 
 233), 328, 230. 
 
 Merrille v. (139 Mass. 353), 93. 
 
 Perley v. (98 Mass. 414), 245. 
 East St. Louis v. O'Flynn (119 HI-. 
 
 200), 258. 
 East Tenn., V. & G. R Co. v. Kelly 
 
 (91 Tenn. 699, 17 L. R A 691), 
 
 260. 
 Eastern Counties R Co. v. Broom (6- 
 
 Exch. 314), 330. 
 Eastman v. Amoskeag Ca (44 N, H. 
 
 143), 355. , 
 
 Eekert v. Long Island, eta R Co. (43- 
 
 N. Y. 502). 287. 
 Eddy V. Gourtright (91 Mich. 264), 93. 
 
 V. Kinney (60 Vt 554), 137. 
 Edleman v. Yeakel (37 Pa. St 36), 
 
 116. 
 Edmison v. Lowy (3 S. D. 77, 17 L. 
 
 R A. 375), 116. 
 EdsaU, West U. Tel. Co. v. (63 Tex. 
 
 668), 290. 
 Edwards v. AUonez Min. Co. (38- 
 Mich. 46), 256. 
 
 V. Kansas City Times Co. (32 Fed. 
 Rep. 814), 74. 
 Egbert v. Greenvault (44 , Mich. 245,. 
 
 38 Am. Rep. 260), 78. 
 Eldridge. North Chicago St R Co. v> 
 
 (151 111. 542), 286. 
 Elledge v. Nat City & O. R Co. (100- 
 • CaL 283). 335, 338. 
 Ellerman v. Chicago Junction, etc. 
 
 Ca (49 N. J. Eq. 317), 310. 
 Ellington v. Ellington (47 Miss. 329),. 
 
 85. 
 EUiott V. Fitchburg R Ca (10 Cush, 
 191, 57 Am. Dec. 85), 141. 
 
 V. Hall (L. R 15 Q. B. D. 315), 
 279. 
 
 V. N: E. R Ca (10 H. L. Gas. 333), 
 347. 
 
 V. Pray (10 Allen, 378), 253. 
 
 V. Van Buren (33 Mich. 49, 20 
 Am. Rep. 668), 66. 
 Elliotson V. Feeltham (3 Bing. N. C. 
 
 134), 256. 
 
XXX vm 
 
 TABLE OF CASES CHTED. 
 
 JSe/erences 
 
 Ellis V. Andrews (56 N. Y. 83, 15 Am. 
 Rep. 379), 195. 
 
 V. BuzzeU (60 Me. 209, 11 Am. 
 Rep. 204), 66. 
 
 V. Kansas O. eta R Co. (63 Mo. 
 131), 251. 
 
 T. Loftus Iron Co. (L. R. 10 C. P. 
 10), 127. 
 
 V. Mathews (19 Tex. 390, 17 Am. 
 Dec. 353), 310. 
 
 V. Whitehead (95 Mich. 105), 63. 
 Elmer v. Fessenden (151 Mass. 359, 5 
 L. R. A. 724). 59. 
 
 T. Locke (135 Mass. 575), 229. 
 El Modelo Cigar Mfg. Co., Gato v. 
 
 (25 Fla. 886, 6 L. R. A. 833), 137. 
 Elmore v. Sands (54 N. Y. 513), 270, 
 
 271. 
 Eltringham v. Earhart (67 Miss. 
 
 488), 4. 
 Elwell v. Martin (32 Vt 317), 81. 
 Elwes V. Mawes (3 East, 88, 3 Sm L. 
 
 C. 169), 170. 
 Ely V. Thompson (3 A. K Marsh. 70), 
 
 186. ' 
 Emerson v. Brigham (10 Mass. 197, 
 6 Am. Dec 109), 193. 
 
 V. Davies (3 Story, 768), 134. 
 Emery v. Lowell (104 Mass. 18), 238. 
 Emory v. Addis (71 m. 273), 93. 
 
 V. Hazard Powder Co. (32 S. C. 
 476), 253. 
 Emporia v. Soden (25 Kan. 588), 241. 
 England v. Downs (12 Beav. 533), 208. 
 Erickson v. Jones (37 Minn. 459), 173. 
 Erie R. Co., Gibson v. (63 N. Y. 449, 
 20 Am. Rep. 553), 222. 
 
 Warner v. (39 N. Y. 468), 233. 
 Essex Co. ElectriQ Co. v. Kelly (N. J., 
 
 '29 AtL Rep. 437), 228. 
 Estopinal v. Beyroux (3')' La. Ann. 
 
 477), 163. 
 Esty V. Baker (50 Me. 335), 19. 
 Etchberry v. Leveille (3 Hilt. 40), 46. 
 European, etc R. Co., Hanson v. (63 
 
 Me. 84, 16 Am. Rep. 404), 50, 271. 
 Evans v. Adams Exp. Co. (133 Ind. 
 
 363, 7 L. R. A. 678), 286. 
 Evansich v. G., C. etc R. Cc (57 Tex. 
 
 126, 44 Am. Rep. 586), 82. 
 
 are to pages. 
 
 Evansville, etc. R. Co. v. GrifiSn (100 
 
 Ind. 321), 2:;3. 
 Evart Booming Co„ Muskegon Boom- 
 ing Co. V. (34 Mich. 462), 257. 
 Evening News Asso., Randall v. (79 
 Mich. 266, 7 L. R. A., 309), 58, 78; 
 Everett v. Council Bluffs (46 Iowa, 
 66), 252. 
 v. Hydraulic Ca (23 CaL 225), 
 
 235. 
 T. Marquette (53 Mich. 450), 257. 
 V. Sherfey (1 Iowa, 356), 13, 82. 
 Ewer, People v. (141 N. Y. 139), 13, 
 
 100. 
 Ex parte Ball (L. R. 10 Ch. D. 667), 
 34. 
 Barry (85 Cal. 603, 20 Am. 
 
 St. Rep. 348), 167. 
 Bradley (7 Waa 364), 167. 
 Briggs (L R. 1 Eq. Cas. 
 
 483), 204. 
 Gardner (Nev., 39 Pac Rep. 
 
 570), 167. 
 Harris (26 Fla. 77, 23 Am. 
 
 St. Rep. 548), 165. 
 Kreiger (7 Mo. App. 867), 
 
 166. 
 Milligan (4 WaU. 2), 110, 393. 
 Moore (63 N. C. 397), 167. 
 Robertson (37 Tex. App. 
 
 638), 166. 
 Robinson (19 Wall. 505), 166. 
 Thatcher (7 HL 167), 166. 
 Eyre, Quartz-HiU Co. v. (L. R. 11 Q. 
 B. D. 674), 56. 
 
 F. 
 
 Factors' & T. Ins. Co. v. Werlein (42 
 
 La. Ann. 1046, 11 L. R. A. 361), 
 
 286. 
 Fadden v. Robinson (35 Ind. 24), 195. 
 Fagan v. Knox (66 N. Y. 635), 54. 
 Fairbanks v. Kerr (70 Pa. St. 386), 
 
 32. 
 Fairchild v. Keith (29 Ohio St. 166), 
 146. 
 
 V. MoMahon (139 N. Y. 290, 86 
 Am. St. Rep. 701), 195. 
 Fairman v. Ives (5 B. & Aid. 643), 70. 
 
TABLE OF CASES CTtTED. 
 
 xxxrx. 
 
 References are to pages. 
 
 Fake v. Addicks (4 Minn. 37, 33 Am. 
 
 St. Rep. 716), 139. 
 Falk V. Gas L. & R Co. (48 Fed. Rep. 
 
 262), 133. 
 Fallen v. O'Brien (12 R. 1 518, 34 Am. 
 
 Repi 713), 137. 
 Falvey v. Faxon (143 Mass. 284), 55. 
 IFanning v. Chace (17 R. L 388, 13 L. 
 
 R. A. 134), 30, 61. 
 Farebrother v. Ansley (1 Camp. 343), 
 
 39. 
 Fans V. Starke (3 R Mon. 4), 54 
 Farkas v. PoweU (86 Ga. 800, 12 L. R 
 
 A. 397), 365. 
 Farley v. TiUar (81 Va. 375)} 3a 
 Fanner v. Farmer (39 N. J. Eq. 211), 
 
 207. 
 Farmers' Turnpike Road v. Coven- 
 try (10 Johns. 389), 275. 
 Famsworth v. Storrs (5 Cush. 412), 70. 
 Farris v. Cass Ave. etc. R. Ca (80 Mo. 
 335), 388. 
 
 V. Dudley (78 Ala. 124), 27a 
 Farver, Wabash, etc. R. Ca v. (Ill 
 
 Ind. 195), 35. 
 FarweU v. Becker (129 Hi 261, 6 L. 
 R. A. 400), 44. 
 
 V. Boston, etc. R. Co. (4 Met 49, 
 38 Am. Dec. 339), 222. 
 Faulcon v. Johnston (103 N. C. 264 
 
 11 Am. St Rep. 737), 17a 
 Faulkner v. Brown (13 Wend. 63), 
 
 175. 
 Fausler v. Parsons (6 W. Va. 486, 30 
 
 Am. Rep. 431), 163. 
 Fawcett v. York, eta R Co. (16 Q. B. 
 
 610), 377. 
 Fay V. Pac. Imp. Ca (93 CaL 253, 16 
 
 L. R. A. 188), 366. 
 Feeney v. Bartoldo (N. J. Eq. 30 AtL 
 Rep. 1101), 249. 
 
 V, L. L R. Ca (116 N. T. 375, 5 
 L. R A. 544), 217. 
 Feital v. Middlesex R Co. (109 Mass. 
 
 398, 13 Am. Rep. 730), 45. 
 Felkner v. Scarlet (29 Ind. 154), 85. 
 Feller, Cent R Co. v. (84 Pa. St 226), 
 
 284 
 Feltham v. England (L. R 2 Q. B. 33), 
 
 23a 
 
 Fenwick v. Grimes (5 Cranch, C. C. 
 
 439), 196. 
 Ferebee v. Pritchard (113 N. C. 83), 
 
 308. 
 Ferguson v. Gies (82 Mich. 358, 9 L. 
 R A. 589), 104 
 
 V. Smethers (70 Ind. 519, 36 Am. 
 Rep. 186), 78. 
 
 St Louis, L M. & S. R Co. v. 
 (57Ark.l6, 18L.R A.110), 
 276. 
 Femsler v. Moyer (3 W. & a 416, 39 
 
 Am. Dec. 33), 86. 
 Field V. Colson (93 Ky. 347), 61. 
 
 Lehigh Ca v. (8 W. & S. 333), 179. 
 Fields, New Albany, eta R Ca v. (10 
 
 Ind. 187), 3ia 
 Fife V. Oshkosh (89 Wis. 540), 261. 
 Filber v. Dauterman (26 Wis. 518), 
 
 60. 
 Filkins v. O'Sullivan (79 BL 524), 57. 
 Fillebrown v. G. T. R Co. (55 Me. 
 
 463), 26a 
 Findley v. Patterson (2 B. Mon. 76), 
 
 209. 
 Fine V. Navarre (Mich., 62 N. W. R 
 
 143), 54 
 Finn, State v. (87 Ma 310), 15a 
 First Independent Church, Partridge 
 
 V. (39 Md. 631), 39. 
 First Nat Bank v. Reed (36 Mich. 
 263), 2ia 
 
 Weckler v. (42 Md. 581, 30 Am. 
 Rep. 95), 34 
 Fischel v. Lueckel (53 Fed. Rep. 499), 
 
 isa 
 
 Fish V. Ferris (5 Duer, 49), 30. 
 
 V. Kelley (17 C. R, N. S„ 194), 
 374 
 Fisher's Appeal (34 Pa. St 39), 314 
 Fisher v. Bishop (108 N. Y. 25), 206. 
 V. Budlong (10 R L 525), 200. 
 Rex V. (3 Camp. 563), 7a 
 Fitchburg R Co. v. Elliott (10 Cusb. 
 191, 57 Am. Dea 85), 141. 
 Ford v. (llO Mass. 340, 14 Am. 
 
 Rep. 598), 339. 
 Snow V. (136 Mass. 552), 370. 
 Titoomb v. (13 Allen, 254), 377. 
 White V. (136 Mass. 331), 370. 
 
xl 
 
 TABLE OF CASES CITED. 
 
 Keferemces are to pages. 
 
 Fitzgerkld v. Gavin (110 Mass. 153), 
 48. 
 V. Eedfield (51 Barb. 484), 63, 
 V. St Paul, M. & M. R Co. (39 
 Minn. 336, 43 Am. Rep. 213), 
 287. 
 V. Smith (1 Ind. 310), 40. 
 rieischner, Pac. Post. TeL Co. v. (66 
 
 Fed. Rep. 899), 391. 
 Fleming v. Shenandoah (67 la. 505, 
 56 Am. Rep. 354), 79. 
 V. 'texas Loan Agency (Tex., 36 
 ' L. E. A. 250), 95. 
 Fletcher v. Rylaiids (L. R. 1 Exch. 
 
 365), 235. 
 Flickinger v. Wagner (46 Md. 581), 
 
 55. • 
 Flinn v. State (24 Ind. 286), 23. 
 JFlint V. Hutchinson Smoke Burner 
 Co. (110 Mo. 493, 16 lu R. A. 
 343), 75. 
 V. Norwich, etc. R. Ca (34 Conn. 
 554), 271. 
 Flint, etc. Co. T. Dewey (14 Mich. 
 
 477), 213. 
 Flint, etc. R. Ca v. Weir (37 Mich. 
 
 Ill), 264. 
 Florida So. R. Co. v. Hirst (30 Fla. 1, 
 
 16 L. R. A. 631), 385. 
 Fluker v. Ga. R & Bkg. Co. (81 Ga. 
 
 461, 3 L. R A. 843), 89. 
 Flynn v. Canton Co. (40 Md. 312), 376. 
 V. Fogarty (106 IlL 363), 91. 
 V. San Francisco, etc. R Co. (40 
 CaL 14), 246. 
 Fogarty v. Junction City, etc. Co. 
 (50 Kan. 478, 18 L. R A. 756), 349. 
 Foley V. Petee Mach. Works (149 
 
 Mass. 294, 4 L. R A. 51), 325. 
 Fones v. Phillips (39 Ark. 17), 226. 
 Forbes v, Escambia County Board of 
 Health (28 Fla. 36, 13 L. R A. 
 549), 148. , 
 
 Force v. Gregory (63 Conn. 167, 23 L. 
 
 R A. 343), 374. 
 J'ord V. Cart (58 Conn. 1, 6 L. R A. 
 839), 81. 
 V. C, R L & P. R Co. (la., 24 L. 
 
 R. A. 657), 230. 
 V. Dyer (36 Miss. 343), 57. 
 
 Ford V. Fitchburg R. Co. (110 Mass. 
 240, 14 Am. Rep. 598), 329. 
 
 V. Foster (L. R 7 Ch. App. 611), 
 137. 
 
 V. Harrington (16 N. Y. 385), 305.. 
 
 V. Sur^et (46 Miss. 130), 393. 
 
 V. Williams (13 N. Y. 577,67 Am. 
 Dec. 83), 38. 
 Forepaugh v. Del;, L. & W. R Co. 
 
 (138 Pa. St. 317, 5 L. R A. 508), 6. 
 Fort, Raibroad Co. v. (17 Wall 553), 
 
 337. 
 Forward v. Adams (7 Wend. 304), 63. 
 Fosburg V. PhilUps Fuel Co. (la., 61 
 
 N. W. Rep. 400), 225. 
 Foster v. Chamberlain (41 Ala. 158),. 
 178. 
 
 V. Essex Bank (17 Mass. 479), 264. 
 
 V. Maekinnon (L. R 4 C. P. 704), 
 198. 
 Fotheringham v. Adams Express Cc 
 
 (36 Fed. Rep. 353, 1 L R A. 474), 
 
 50. 
 Fouldes V. Willoiighby (8 M. & W. 
 
 540), 180. 
 Foulks V. Falls (91 Ind. 315), 273. 
 Fountain v. Draper (49 Ind. 441), 91, 
 
 93. 
 Fowler's Case (8 T. R 314), 166. 
 Fowler v. Brooks (64 N. H. 433), 164. 
 Francis, v. CockreU (L. R 5 Q. B. 184), 
 252. 
 
 V. Schoellkopf (53 N. Y. 153), 251. 
 
 V. West U. TeL Co. (Miim., 25 
 L. R A. 406), 272. 
 Franke v. Franke (CaL, 18 L. R A. 
 
 375), 88. 
 Frankfort, etc. Co. v. Phila. etc. R 
 
 Co. (54 Pa. St 345), 245. 
 Franklin's Appeal (115 Pa. St 534), 32. 
 Franklin v. Browne (67 Ga. 373), 63. 
 
 V. McCorkle (16 Lea, 609, 57 Am. 
 Rep. 344), 85. 
 
 V. S. E. R Co. (3 H. & N. 311), 98. 
 Franklin Falls Co., State v. (49 N. H. 
 
 430, 6 Am. Rep. 513), 133, 256. 
 Fraser v. Freeman (43 N. Y. 566, 3 
 
 Am. Rep. 740), 230. 
 Fratini v. CasUni (66 Vt 273), 79. 
 Frazer v. Lewiston (76 Me. 631), 260. 
 
TABLE OF CASES CITED. 
 
 xlj 
 
 References are to pages. 
 
 Frederich v. People (147 EL 310), 49. 
 Frederick Miller Brei*img ,0o., Mei- 
 
 ners v. (78 Wis. 364» 10 L; R A, 
 
 i)86), 356. 
 Frederickson v. Johnson (Minn., 62 
 
 N. W. Rep. 888), 67. 
 Free V. Stuart (39 Neb. 330), 173. 
 Freeland, Columbus Gas Go. v. (13 
 
 Ohio St. 393), 350. 
 Freeman v. Cornwall (10 Johns. 470), 
 161. 
 
 V. Duluth, S. S. & AtL R Ca (74 
 Mich. 86, 3 L. R A. 594), 
 385, 287. 
 
 V. Headley (33 N. J. L. fi23), 112. 
 
 V. Rosher (13 Q. B. 780), 38. 
 
 V. Sanderson (133 Ind. 264), 61. 
 
 V. Tinsley (50 lU. 497), 67. 
 Freeport v. Isbell (83 Ill"440), 259. 
 French v. Ryan (Mich., 63 N. W. Rep. 
 1016), 196. 
 
 V. Vining (103 Mass. 132, 8 Am. 
 ReJ). 440), 194 
 Frenzel v. Miller (37 Ind. 1), 202. 
 Fresh v. Chfcter (78 Md. 87, 10 L. R A- 
 
 67), 73. 
 Friedlander r. Hewitt (30 Neb. 783, 
 
 9 L. R A. 700), 171, 172. 
 Friedley, Citizens' Loan, etc. Asso. v. 
 
 (133 Ind. 143, 7 L. R A, 669), 374. 
 Frieszleben v. Schallcross (9 Houst. 1, 
 
 8 L. R A. 337), 13, 109. 
 Fritz V. Ma, K. & T. R Ca (Tex. Civ. 
 
 App., 30 S. W. Rep. 85), 330. 
 Frost V. Beekman (1 Johns. Ch. 388), 
 
 150. 
 Fry V. Leslie (87 Va. 369), 29, 86. 
 FuUer v. Bemis ^0 Fed. Rep. 936), 133. 
 
 V. Edings (11 Rich, 239), 375. 
 
 Monson, etc. Co. v. (15 Pick. 554), 
 233. 
 Furman v. Van Sise (56 N. Y. 435, 
 
 15 Am. Rep. 441), 85. 
 Fylpaa v. Brown Ca (S. D., 63 N. W. 
 
 Rep. 963), 109. 
 
 (J. 
 
 Gaffney, Brazil, etc. Co. v. (119 Ind, 
 
 455, 4 L. R A, 850), 237. 
 Galena, etc. B. Co. v. Jacobs (30 IlL 
 
 478), 386. 
 
 Gallagher v. N. Y. & N. E. R Ca (5 
 L. R A. 737), 277. 
 
 V. Piper (16 C. B., N. S., 669), 333; 
 (Jalloway v. Stewart (49 Ind. 156, 19 
 
 Am. Rep. 677), 54. 
 Galveston, H. & S. A, R Co., Nelson V. 
 (78 Tex. 331, 11 L. R A. 391% 
 96. 
 
 T. Worthy (Tex., 39 & W. Rep. 
 376), 97. 
 Galvin v. Parker (154 Mass. 346), 130;. 
 Gallwey v. Marshall (9 Ex. 294), 63. 
 Ganley v. Looney (14 Allen, 40), 143 
 Gannon v. Hargaddh (10 Allen, 106)> 
 237. 
 
 V. RuflSn (151 Mass. 204), 66. 
 Gardemal v. McWiUiams (43 La. 
 
 Ann. 454), 68. 
 Gardner, Ex parte (Nev., 39 Pac. Rep. 
 
 570), 167. 
 Gairing v. FraSer (76 Me. 37), 32. 
 Garland v. Fulber (*: N. H. 301), 141. 
 Garr, Ga. R Co. v. (57 Ga^ 277, 24 Am. 
 
 Rep. 493), 96. 
 Garretson v.Beoker(52m. Ap.Sg5),85. 
 Garretzen v. Duenckle (50 Ma 104, 
 
 11 Am. Rep. 405), 321. 
 Gartside v. Conn. Mut. etc Ca (76 
 
 Ma 446), 217. 
 Garwood v. New Yo*k, eta R Ca 
 
 C83 N. Y. 400), 243. 
 Gassett v. Gilbert (6 Gray, 94), 71. 
 Gast L. & E. Co., Falk v. (48 Fed. 
 
 Rep. 263), 132. 
 Gato V. El Modelo Cigar Mfg. Ca (35 
 
 Fla. 886, 6 L. R A. 823), 137. 
 Gaunt V. Flynney (L. R 8 Ch. App. 
 
 8, 4 Moak, 718), 249. 
 Gavin v. Chicago (97 BL 66), 288. 
 Gayetty v. Bethune (14 Mass. 49, 7 
 
 Am. Dea 188), 140. 
 Geiger, Savannah, F. & W. R. Co. v. 
 
 (21 Fla. 669, 58 Am. Rep. 697), 126. 
 Genessee, etc. Bank v. Mich. Barge 
 
 Ca (52 Mich. 164), 200. 
 George H. Hammond Co. v. Johnson 
 
 (38 Neb. 344), 337. 
 Georgia R. Co. v. Gann (68 Ga. 350), 
 289. 
 
 V. Garr (57 Ga. 277, 24 Am. Rep. 
 493), 96. 
 
.isEi 
 
 TABLE OF 0ASE3 OITED. 
 
 Georgia R. & Bkg. Co., Fluker v. (81 
 
 Ga. 461,2 L. R A. 843), 89. 
 Gerard v. Lewis (I* R. 2 C. P. 305), 
 
 Gerrish v. Brown (51 Ma 256), 256. 
 Getty V. DevUn (54 N. T. 403), 315. 
 Gianfortone v. New Orleans (61 Fed. 
 
 Eep. 64, 24 L. R A. 592), 360. 
 Gibbens v. Pickett (31 Fla. 147, 19 L. 
 
 R. A. 177), 88. 
 Gibbon v. Paynton (4 Burr. 3298), 384 
 Gibbs V. Linabury (32 Mich. 479, 7 
 
 Am. Rep. 675), 198. i 
 
 Gibson v. Erie R. Co. (63 N. Y. 449, 
 20 Am. Rep. 552), 233. 
 
 V. Huntington (38 W. Va. 177, 
 32 L. R. A. 561), 260. 
 
 State T. (10 Ired. 314), 49. 
 Gifford V. McArthur (55 Mich. 585), 
 
 258. 
 Gilberson t. Wilber (2 N. J. 312), 154. 
 Gilbert v. Diokerson (7 Wend. 449, 23 
 Am. Dec. 592), 183. . 
 
 V. Kennedy (33 Mich. 5), 130. 
 
 Louisville & N. R. Co. v. (88 Tenn. 
 430, 7 L. R. A. 163), 390. 
 
 V. Showerman (33 Mich. 448), 248. 
 Giles V. Simonds (15 Gray, 441, 77 
 Am. Dec. 373), 112. 
 
 V. State (6 Ga. 276), 65. 
 GiU, Bradstreet & Co. v. (73 Te?. 115, 
 
 3 L. E. A. 405), 73. 
 Gillespie V. Palmer (30 Wis. 544), 163. 
 Gillett V. Johnson (30 Conn. 180), 343. 
 Gillis V. Pa. R Co. (59 Pa, St. 129), 
 
 252. 
 Gilluly V. Madison (63 Wis. 518), 389. 
 GUman v. East R Co. (10 Allen, 233), 
 238, 230. 
 
 V, Laconia (55 N. H. 130, 30 Am. 
 Rep. 175), 360. 
 Gilmore v. Wilbur (13 Pick. 130, 33 
 
 Am. Dec. 410), 113. 
 Gilson V. Spear (38 Vt 311, 88 Am. 
 
 Dea 659), 30. 
 Girard Bldg. etc. Ass'n, Houseman 
 
 V. (81 Pa. St. 256), 151. 
 Gladfelter v. Walker (40 Md. 1), 244 
 Gladmon, Railroad Co. t. (15 WaU. 
 401), 384, 288. 
 
 Beferencei are to pages. 
 
 Gladney v. Murphy (36 L. R Ir. 651, 
 
 Q. B. D.), 84 
 Gleason v. Beers (59 Vt. 581), 365. 
 Glendon Iron Co. t. Uhler (75 Pa. St 
 
 467, 15 Am. Rep. 599), 137, 293. 
 Glidden v. Moore (14 Neb. 84), 138. 
 Globe Pub. Co., Handy v. (41 Minn. 
 
 188, 4 L. R A. 466), 45. 
 Globe Woolen Co., Coughtry v. (56 
 
 N. Y. 124, 15 Am. Rep. 387), 225. 
 Globe Works, Monument Nat. Bk. v. 
 
 (101 Mass. 57, 3 Am. Rep. 322), 34 
 Goddard v. G. T. R Co. (57 Me. 203, 3 
 
 Am. Rep. 39), 220. 
 Goetcheus v. Matthewson (61 N. Y. 
 
 430), 163. 
 Goff V. Kilts (15 Wend. 550), 174 
 Goldsmith v. Joy (61 Vt 488, 4 L. R 
 
 A- 500),, 4 49. 
 Goodale, Amoskeag Mfg. Co. v. (46 
 
 N. H. 531), 242. , 
 Goodale v. Tuttle (39 N. Y. 459), 237. 
 Goodenough, Pa, R Ca t. (23 L. R 
 
 A. 460), 80. 
 Goodman v. Mayor, etc. Saltaeh (L. 
 
 R 7 App. Cas. 633), 139. 
 Goodtitle v. Tombs (3 Wils. 118), 121. 
 Goodwyn t. Cheveley (4 H. & N. 
 
 631), 127. 
 Gordon v. Buchanan (6 Yerg. 71), 
 268. 
 
 V. Harper (7 T. R 9), 178. 
 
 V. Parmelee (3 Allen, 213), 196. 
 Gores v. GrafE. (77 Wis. 174), 95. 
 Gorham v. Gale (7 Cow. 789), 155. 
 Gorham Co. v. White (14 WaU. 511), 
 
 137. 
 Gormley v. Sanford (53 111. 158), 237. 
 Goshen Turnpike Co. v, Hurtin (9 
 
 Johns. 217), 275. 
 •Gosset V. Howard (10 Q. B. 411), 166. 
 Gott V. Pulsifer (122 Mass. 235, 28 
 
 Am. Rep., 323), 75. 
 Gottbehuet v. Hubachek (36 Wis. 
 
 515), 66. 
 Gough V. BeU (33 N. J. 441), 118. 
 Gould V. Boston Duck Co. (18 Gray, 
 443), 240. 
 V. James (6 Cow. 369), 123. 
 V. McKenna (86 Pa. St 297), 336, 
 
TABLE OF CASES CITED. 
 
 -gUl'i 
 
 B^enncea are to pages. 
 
 Gouverneur v. Nat Ice Co. (134 N. 
 
 Y. 355, 18 L. R A. 695), 118. 
 
 Qowen V. Harley (56 Fed. Rep. 973), 
 
 335. 
 
 v. Phila. Exch. Ca (5 W. & S. 
 
 141, 40 Am. Deo. 489), 111. 
 
 Grace v. MitcheU (81 Wis. 533, 11 
 
 Am. Rep. 613), 43, 186. 
 Grady v. Wolsner (46 Ala. 381), 254. 
 Graham v. McReynolds (90 Temi. 
 673), 86. 
 V. Newburg Orrel Coal, etc. Co. 
 (38 W. Va. 373X 329. 
 Grainger v. Hill (4 Bing. N. C 312), 
 
 50, 56. 
 Grand Junction Canal Co., Dickin- 
 son V. (7 Exch. 282), 240. 
 Grand Rapids, etc R. Ca v. Huntley 
 
 (38 Mich. 537), 271. 
 Grand Rapids Booming Co. v. Jaryis 
 
 (30 Mich. 308), lia 
 Grand Rapids & L R. Ca, Bums v. 
 
 (113 Ind. 169), 94. 
 Grand Trunk R Ca, Bumham v. (63 
 Me. 398, 18 Am. Rep. 220), 
 42. 
 Condit V. (54 N. Y. 500), 29a 
 V. Cummings (106 U. S. 700), 23a 
 FiUebrown v. (55 Me. 462), 268. 
 Goddard v. (57 Me. 203, 2 Am. 
 
 Rep. 39), 220. 
 JeweU V. (55 N. H. 84), 382. 
 Keeney v. (47 N. Y. 525), 368. 
 T. Richardson (91 U. S. 454), 345. 
 Taylor v. (48 N. H. 304), 271. 
 Grattan v. Metropolitan Ins. Ca (80 
 
 N. Y. 281), 217. 
 Graves v. Waterman (63 N. Y. 657), 
 
 214 
 Gray V. Bartlett (20 Pick. 186, 33 Am. 
 Dea 208), 192. 
 V. Boston, eta Co. (114 Mass. 149, 
 
 19 Am. Rep. 334), 355. 
 V. Emmons (7 Mich. 533), 215. 
 V. Jackson (51 N. H. 9), 369. 
 V. McWiUiams (98 CaL 157, 31 L. 
 
 R A. 593), 237, 339. 
 Mobile, etc. R Co. v. (62 
 
 383), 245. 
 V. Russell (1 Story, 11), 133, 
 
 Great East. R Co., Read v. (L. R S 
 
 Q. B. 555), 93. 
 Great Northern R Co., Hunter v. 
 
 (2 Q. B. 189), 73. 
 Great West R Ca, JeflFries v. (5 EL 
 & B. 803), 178. 
 
 Ranger v. (5 H. L. Cas. 71), 35. 
 Greeley v. Maine C. R Ca (53 Me. 
 
 200), 237. 
 Green v. CampbeU (35 W. Va. 698, 
 34 Cent L. J. 316), 13. 
 
 V. Green (34 Kan. 740, 55 Am. 
 Rep. 356), 208. 
 
 V. Greenbank (3 Marsh. 485), 30. 
 
 V. Hudson River R R Co. (2 
 Keyes, 294), 93. 
 
 V. Nunnemacher (36 Wis. 50), 358. 
 Green Bay, eta Co., Arimond v. (31 
 Wis. 316), 357. 
 
 Pumpelly v. (15 WaU. 166), 334. 
 Greene v. Mead (18 N. H. 505), 179. 
 Greenfield Sav. Bank v. Simons (133 
 
 Mass. 415), 215. 
 Greenleaf v. Francis (18 Pick. 117), 
 
 239. 
 GregOTy v. Ohio R R Ca (37 W. Va. 
 
 606), 220. 
 Griffin, Evansville, eta R Ca v. (100 
 
 Ind. 221), 25a 
 Griffis V. Sellars (2 Dev. & Bat L. 
 
 176), 55. 
 Griggs V. Phillips (103 N. Y. 77), 256. 
 Grigsby v. Breckinridge (2 Bush, 480, 
 
 92 Am. Dea 509), 135. 
 Grinnell v. Wells (7 M. & G. 1033), 
 81. 
 
 V. West U. TeL Co. (113 Mass. 
 299, 18 Am Rep. 485), 273, 
 290. 
 Griswold v. Haven (25 N. Y.-595, 83 
 Am. Dec. 380), 219. 
 
 V. Sabine (51 N. H. 167, 12 Am. 
 Rep. 76), 302. 
 Grizzle v. Frost (3 F. & F. 623), 226. 
 Gross V. Miller (Iowa, 86 L. R A. 605), 
 
 46. 
 Grosso V. Del., L. & W. R Co. (50 N. 
 
 J. L. 317), 9, 95. 
 Grove v. Ft. Wayne (45 Ind. 429, 15 
 
 Am. Rep. 263), 333. 
 
m^ 
 
 TABLE OF CASES CITED. 
 
 BefereTiixs are to pages. 
 
 ©rove V. Van Duyn (44 N. J. L. 654j 
 43 Am. Eep. 412), 164. 
 V. Wipe (39 Mich. 161), 179. 
 Gruber v. Baker (20 Nev. 453, 9 U E. 
 
 A. 302), 191. 
 Guest V. Reynolds (68 IlL 478), 247. 
 Gtiijle -7. Swan (19 Johns. 381), 22. 
 Gnjlteau's Case (10 Fed. Rep. 161, 175), 
 
 11. 
 Gulf, 0. & S. F. E. Cd. t. John (Tex. 
 Civ. App., 29 S. W. Rep. 
 558), 97. 
 V. Kizziah (86 Tex. 81), 222. 
 V. Southwick (Tex. Civ. A.PP-, 30 
 a W. Eep. 592), 97. 
 Gumberg v. Treusoh (Mich., 61 N. W. 
 
 Rep. 872), 191. 
 Gunsolus y. Lormer (54 Wis. 680), 119. 
 Gunter, Dale Co. v. (46 Ala. 118), 8. 
 
 H. 
 
 Hackett v. Hackett (18 R. L — , 19 
 L. R. A. 558), 88. 
 
 V. Smelsley (77 IlL 109), 92. 
 
 St Louis, I. M. & S. R. Co. v. (58 
 Ark. 381), 221. 
 Hadd V. V. S. Exp. Co. (52 Vt. 335), 
 
 269. 
 Hadley v. Hey wood (121 Mass. 236), 
 
 79. 
 HaeW V. Wabash R. Co. (119 Ma 325), 
 
 221. 
 Haenni, Consolidated Coal Co. v. (86 
 
 Me. 221), 237, 228. 
 Haetsch v. Chicago & N. W. R Ca 
 
 (87 Wis. 304), 287. 
 Hagee v. Grossman (31 Ind. 223), 203. 
 Haggart v. Stehlin (137 Ind. 43, 22 L. 
 
 E. A. 577), 25a 
 Haines v. Schultz (50 N. J. L. 481), 
 
 59. 
 Haldeman v. Bruckhart (45 Pa. St 
 
 514), 239. 
 Hale V. Bisohoff (Kan., 86 Paa Eep. 
 752), 109. 
 
 V. Everett (58 N. H. 9, 16 Am. 
 Eep. 83), 106. 
 
 V. McLea (53 Cal. 578), 240. 
 Haley, People v. (48 Mich. 495), 53. 
 
 Haley Liverstock Ca, Wilson v. (153 
 
 U. S. 39), 175. 
 HaU V. Chaflfee (13 Vt 157), 114. 
 
 Chicago & L C. E. Co. v. (185 Ind. 
 
 91, 28 L. R. A. 231), 112. 
 V. Corcoran (107 Mass. 251, 9 Am. 
 
 Rep, 30), 30. 
 V. De Cuitt (95 U. S. 485), 104 
 m. Cent R Ca v. (72 EL 222), 
 
 279. 
 Louisville & N. R Ca v. (87 Ala. 
 
 708, 4 L. R A. 710), 284. 
 V. Thayer (105 Mass. 219), 164 
 V. Thompson (1 S. & M. 443), 208. 
 Hall & V. Co., Smithwick v. (59 
 
 Conn. 261, 12 L. R A. 279), 286. 
 Hallam, Post Pub. Ca v. (59 Fed. 
 
 Rep. 530), 73. 
 Halpin v. Barr (D. C, 21 Wash. L. 
 
 Eep. 106), 142. 
 Halstead v. Nelson (36 Hun, 149), 70. 
 Hamilburgh y. Shepard (119 Mass. 30), 
 
 56. 
 Hamilton v. Eno (81 N. T. 116), 73. 
 Mo., K & T. R Co. v. (Tex. Civ. 
 App., 30 S. W. Rep. 679), 
 225. 
 V. Texas, etc. R Ca (64 Tex. 251), 
 
 252. 
 V. Third Ave. R Co. (53 N. Y. 
 25), 271. 
 Hamilton Mfg. Ca, Com. v. (120 
 
 Mass. 888), 99. 
 Hammatt v. Emerson (37 Me. 308, 46 
 
 Am. Dea 598), 203. 
 Hampton v. Wheeler (99 N. C. 333), 
 
 131. 
 Hancock v. McAvoy (18 L. R A. 781), 
 130. 
 V. Rand (94 N. Y. 1), 2G6. 
 Handford v. Jackson (150 Mass. 1491, 
 
 171. 
 Handy v. Globe Pub. Co. (41 Minn. 
 188,-4L.R A. 466), 45. 
 IlL Cent R Ca v. (63 Miss. 609), 
 270. 
 Haney Mfg. Co. v. Perkins (78 Mich. 
 
 1^,63. 
 Hanlin v. Chicago, etc. Co. (61 Wis. 
 515), 237. 
 
TABLE OF OASES OITED. 
 
 xlv 
 
 Beferences are to pages. 
 
 Hannibal, etc. R. Co., Brown v. (50 
 Mo. 461), 285. 
 
 Zimmerman v. (71 Mo. 476), 281. 
 Hannibal E. Co. v. Swift (13 Wall. 
 
 263), 370. 
 Hanold v. Bacon (36 Mich. 1), 150. 
 Hanson v. European, etc. R Co. (63 
 Me. 84. 16 Am. Rep. 404), 
 50. 371. 
 
 V. McCue (43 Cal. 303), 240. 
 Harber v. Evans (101 Mo. 661, 10 L. 
 
 R. A. 41), 142. 
 Hardin v. Cumstock (3 A. K. Marsh. 
 480, 12 Am. Dec. 437), 69. 
 
 V. Jordan (140 U. S. 371), lia 
 Harding v. Handy (11 Wheat. 103), 
 210. 
 
 V. Stamford Water Cp. (41 Conn. 
 '87), 340, 241. 
 Hardy y. Brooklyn (90 N. Y. 435), 260. 
 Hargraves v. Korcek (Neb., 63 N. W. 
 
 Rep. 1086), 305. 
 Hargreaves v. Deacon (25 Mich. 1), 
 
 253. 
 Harmon v. Bfcirmon (61 Me. 237, 14 
 
 Am. Rep. 556), 205. 
 Hamer v. Fisher (58 Pa. St 453), 193. 
 Harpham v. Whitney (77 IlL 33), 55. 
 Harriman v. Pittsburgh, eta E. Co. 
 
 (45 Ohio St. 11), 221, 252. 
 Harrington V. Com'rs, eta (2 McCord, 
 
 400), 160. 
 Harris, Ex parte (36 Fla. 77, 23 Am. 
 
 St. Rep. 548), 165. 
 Harrison v. Bush (5 El. & BL 344), 71. 
 
 V. Grady (18 L. T., N. S., 369), 12. 
 
 V. Harrison (43 Vt. 417), 50. 
 Harriss v. Fisher (N. C, 20 S. E. Rep. 
 460), 138. 
 
 V. Frink (49 N. Y. 24, 10 Am. 
 Rep. 318), 173. 
 
 V. Sneeden (101 N. C. 373), 76. 
 Hart V. Connor (35 Conn. 381), 140. 
 
 V. Townsend (67 How. Pr. 88). 73. 
 Hartfleld v. Roper (31 Wend. 615), 
 
 285, 287. 
 Hartford, etc. R. Co. v. Andrews (86 
 
 Conn. 213), 95, 
 Hartwell v. Armstrong (19 Barb. 
 
 166), 233. 
 
 Haskins v. Lumsden (10 Wis. 359), 75. 
 Hastings v. Lusk (22 Wend. 410), 68. 
 V. Ldvermo're . (7 Gray, 194), 141. 
 Hatch V. Hatch (9 Yes. 293), 315. 
 Hatchard v. Mege (L. R. 18 Q. B. D. 
 
 771), 76. 
 Hathaway v. Hinton (1 J«neg, 343), 
 
 156. 
 Hathorn v. Richmond (48 Vt 557), 
 
 378, 288. 
 Hawbecker v. Hawbecker (43 Md. 
 
 516), 14 
 Hawes v. Burlington, eta R. Co. (64 
 Iowa, 315), 285. 
 State V. (4 Am. K T. Rep. 524), 
 57. 
 Hawkins v. Com. (14 B. Mon. 395, 61 
 Am. Dea 147), 116. 
 T. Hessey (Me., 30 Atl. Rep. 14), 
 
 171. 
 V. Pemberton (51 N. Y. 198, 10 
 Am. Rep. 595), 303. 
 Hawks T. hocke (139 Mas& 305), 
 354. 
 V, Northampton (121 Mass. 10), 
 288. ' 
 Hawyer v. Whalen (49 Ohio St 69, 
 
 14 L. R A. 838), 324. 
 [Hayden v. Smith-ville Mfg. Co. (29 
 
 Conn. 548), 326. 
 
 Haye v. Cohoes Ca '(2 N. Y. 159), 123. 
 
 Hayes v. Buzzell (60 Me. 205), 154. 
 
 Lehigh W. Coal Ca v. (138 Pa. 
 
 St 394, 5 L. R A. 441), 226. 
 
 V. Mass. Mut L. Ins. Ca (125 IlL 
 
 626, 1 L. R A. 303), 181. 
 V. Mitchell (80 Ala. 183), 53. 
 V. Oshkosh (83 Wis. 314, 14 Am. 
 
 Rep. 76), 259. 
 V. Porter (22 Me. 371), 153. 
 T. Press Ca (127 Pa. St 642, 5 L. 
 
 R A. 643), 73. 
 Salem Turnpike Co. v. (5 Cush. 
 
 458), 276. 
 V. Waldron (44 N. H. 580), 248, 
 244. 
 Hayner v. Cowden (27 Ohio St 292, 
 
 22 Am. Rep. 303), 62. 
 Haynes v. Burlington (38 Vt 350), 
 343. 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 Beferencea are to pages. 
 
 Haynes v. Ritchey (30 Iowa, 76, 6 
 Am. Eep. 643), 61. 
 
 V. Spokane, etc. Pub. Co. (Wash., 
 39 Pac. Rep. 969), 66. 
 Hays V. Miller (77 Pa. St. 338, 18 Am. 
 
 Eep. 445), 221. 
 Hazard Powder Co., Emory t. (23 
 
 S. C. 476), 353. 
 Heartt v. Kruger (131 N. Y. 386, 9 L. 
 
 R. A. 135), 143. 
 Heaven v. Pender (L. R. 11 Q. B. D. 
 
 503), 268. 
 Hebditch v. Mcllwaine (C. A., 2 Q. R 
 
 54 1894), 71. 
 Hect, People v. (CaL, 38 Pac. Rep. 
 
 752), 109. 
 Hedderick v. Smith (103 Ind. 203), 
 
 172. 
 Helena v. Thompson (20 Ark. 569), 
 
 243. 
 Heller y. Alvarado (1 Tex. Civ. App. 
 409), 4. 
 
 V. Howard (11 Hi App. 554), 59. 
 Helms V. Elliott (89 Tenn. 446, 10 L. 
 
 R. A. 535), 14. 
 Helwig V. Jordan (53 Ind. 31, 31 Am. 
 
 Rep. 189), 254 
 Hemmens v. Nelson (138 N. Y. 517, 
 
 30 L. R. A. 440), 61. 
 Henderson v. Broomhead (4 H. & N. 
 569), 68, 69. 
 
 V. Fox (83 Ga. 233),.66, 67. 
 
 V. Smith (26 W. Va. 839, 53 Am. 
 Rep. 139), 155. 
 Henly v. Lyme Regis (5 Bing. 91), 25. 
 Hennersdorf v. State (35 Tex. App. 
 
 598, 8 Am. St. Rep. 448), 45. 
 Henniker v. Contoocook Valley R. 
 
 Co. (29 N. H. 146), 375. 
 Herron, State v. (13 Mont 330, 33 
 
 Am. St. Rep. 576), 47. 
 Herveyv. Moseley (7 Gray, 479, 66 
 
 Am. Dec. 515), 83, 87. 
 Hessel v. Johnson (129 Pa. St. 173, 
 
 5 L. R. A. 851), 19. 
 Hesser, ^tna L. Ins. Co. v. (77 Iowa, 
 
 881, 4 L. R. A. 133), 150. 
 Heuston v. Simpson (115 Ind. 63), 
 
 217. 
 Hewey v. Nourse (54 Me. 356), 244. 
 
 Hext V. GiU (L. E. 7 Ch. App. 69% 
 
 3 Moak, 574), 348. 
 Hey V. Moorhouse (6 Bing. N. C. 53), 
 
 131. 
 
 Heywood v. Tillson (75 Me. 235), 9. 
 Hibbard et aL v. Ryan (46 la Ap, 
 
 313), 69. 
 Hickey V. Mich. Cent R. Co. (96 Mich. 
 
 498, 31 L. R. A- 739), 238. 
 Hickman v. Miss, eta R. Co. (91 Mo. 
 
 433), 371. 
 Hicks Y. Stillman (93 Dl. 355), 339. 
 Hieatt v. Morris (10 Ohio St 523, 7» 
 
 Am. Dec. 280), 143. 
 Higgins'v. Butcher (1 BrownL 305, 
 Yelv. 89), 9. 
 V. Dewey (107 Mass. 494j 9 Am. 
 
 Eep. 63), 344, 245. 
 V. Peltzer (49 Ma 152), 187. 
 Higgins, In re (37 Fed. Rep. 443), 167. 
 Highberger v. Stiffler (31 Md. 338, 83 
 
 Am. Dec. 593), 209. 
 High Rock, etc. Co., Congress, eta 
 Co. V. (45 N. Y. 291, 6 Am. Rep. 
 82), 136. 
 HUdebrand v. McCrum (101 Ind. 61), 
 
 50. 
 Hill V. Brower (76 N. C. 124), 196. 
 V. De Rochemount (48 N. H. 87), 
 
 134 
 T. Gray (1 Stark. 434), 192. 
 V. Hayes (38 Conn. 533), 181. 
 V. Lord (48 Me. 83), 112. 
 V. Morey (26 Vt 178), 3ia 
 V. Munday (89 Ky. 36, 4 L. E. A. 
 
 674), 170. 
 V. Nash (51 Me. 585, 66 Am. Dec 
 
 266), 210. 
 V. Reifsnider (46 Md. 555), 191. 
 Hill Mfg. Ca, Mundle v. (86 Me. 400), 
 
 325. 
 Hillary v. Gay (6 C. & P. 384), 130. 
 Hills V. MiUer (3 Paige, 254), 140. 
 Hilton V. Eckersley (6 EL & BL 47), 
 
 102. 
 Hnts V. Chicago, eta E. Co. (55 Mich. 
 
 437), 338. 
 Hinckley v. Horandowski (133 HL 
 
 359, 8 L. R. A. 490), 337. 
 Hine v. Wooding (37 Conn. 123), 129. 
 
TABLE OF OASES CITED. 
 
 xlvii 
 
 Keferences are to pages. 
 
 Hinton v. Dibbin (2 Q. B. 646), 368. 
 Hirst, Florida So. R. Co. v. (30 Fla. 1, 
 
 16 L. R. A. 631), 285. 
 Hitchcock V. Caruthers (83 CaL 523), 
 
 61. 
 Hitchings, Cumberland^ etc Corp'n 
 
 V. (59 Ma 206), 375. 
 Hoar, United States v. (2 Hason, 311), 
 256. ' 
 
 V. Wood (3 Met 193), 69. 
 Hoard v. Park (56 Barb. 202), 79. 
 Hobart v. Frisbie (5 Conn. 593), 154 
 Hooker, State ex rel. Ambler v, (Fla., 
 
 25 L. R A. 114), 165. 
 Hodges V. New Eng. Screw Co. (1 E. 
 . L 313, 53 Am. Dec. 63l, 3 B. L 1), 
 
 311. 
 HodgkiiLson v. Hodgkinson (Neb., 61 
 
 N. W. Rep. 577), 81. 
 Hoggatt V. Bigley (6 Humph. 836), 
 
 161. 
 Hogue V. Penn (3 Bush, 663, 96 Am. 
 
 Dec. 374), 110. 
 Holbrook v. O'Connor (60 Me. 578, 11 
 
 Am. Eep. 312), 195. 
 Holden v. Lake Co. (53 N. H. 552), 242. 
 
 V. Railroad Co. (139 Mass. 368), 
 333. 
 
 V. Rutland, etc. E. Ca (30 Vt. 
 297), 376. 
 Holland v. Beard (59 Miss. 161, 43 
 
 Am. Rep. 360), 83. 
 Hollander, Neth-Am. St. Nav. Co. v. 
 
 (59 Fed! Rep. 417), 82. 
 Holley V. Mix (3 Wend. 350, 20 Am. 
 
 Dec. 702), 53. 
 HoUiday v. Sterling (63 Mo. 321), 56. 
 HolUns V. Fowler (L. R. 7 H. L. Cas. 
 
 757), 181. 
 HoUis V. Meux (69 CaL 625, 58 Am. 
 
 Rep. 574), 68. 
 Holloway v. HoUoway (13 Beav. 309), 
 
 137. 
 Holmes v. Holmes (133 Ind. 386), 81. 
 
 y. Matter (L. E. 10 Exch. 261, 14 
 Moak, 548), 263. 
 
 V. Seely (19 Wend. 507), 140, 
 
 V. State (48 N. H. 377), 53. 
 Holsman v. Boiling Spring Bleach- 
 ing Co. (14 N. J. Eq. 335), 343. 
 
 Holtz V. Dick (42 Ohio St. 23, 5l'Am. 
 
 Rep. 791), 78. 
 Homer v. Thwing (3 Pick. 493), 365. 
 Honey v. C, B. & Q. R- Co. (59 Fed. 
 Rep. 433), 80. 
 
 V. C, B. & Q. R. Co. (63 Fed. Eep.. 
 39, 26 L. R. A. 42), 79. 
 Honzik v. Delaglise (65 Wis. 494, 56. 
 
 Am. Rep. 634)a71. 
 Hood, Quincy Coal Co. v. (77 IlL 68), 
 96. 
 
 V. Sudderth (111 N. C. 215), 86. 
 Hooker v. Miller (37 Iowa, 613, 18 Am. 
 
 Rep. 18), 50. 
 Hooley v. Kerry (4 Taunt 335), 65. 
 Hoover, Norfolk & West R. Co. v.. 
 
 (Md., 35 L. E. A. 710), 338. 
 Hopkins, St Louis, I. M. & S. R. Ca 
 V. (54 Ark. 309, 13 L E. A. 
 189), 383. 
 
 V. Sievert (58 Mo. 201), 191. 
 Hord V. Grimes (13 B. Mon. 18^, 274. 
 Horgan v. Pacific Mills (158 Mass. 
 
 402), 82. 
 Horn V. Smith (77 IlL 281), 91. 
 Hornby v. Close (L. R. 2 Q. B. 153),. 
 
 102. 
 Horner V. Watson (79, Pa. St 243, 31 
 
 Am. Rep. 55), 348. 
 Horton v. Howard (79 Mich. 643, 1» 
 
 Am. St Rep. 198), 164 
 Hostetter v. Vowinkle (1 DilL 329), 
 
 137. 
 Houck V. Yates (83 la 179), 117. 
 Houf e V. Fulton (39 Wis. 396, 9 Am. 
 
 Rep. 568), 360. 
 Houppert, Beck & Pauli Lith. Co. v. 
 
 (Ala., 16 So. Rep. 533), 198. 
 Housatonic, etc. E. Co., Burroughs v.. 
 
 (15 Conn. 134), 345. 
 Housekeeper, State ex rel. Janney 
 
 v. (70 Ind. 162, 3 L. R. A. 587), 
 
 374 
 Houseman v. Girard Bldg. etc. Ass'n 
 
 (81 Pa. St 256), 151. 
 Houston V. Brush (66 Vt 331), 237. 
 
 V. LafEee (46 N. H. 605), 113. 
 
 Railroad Co. v. (95 U. S. 697), 287. 
 Houston, etc. E. Co. v. Terry (43 Tex, 
 
 451), 277. 
 
ilviii 
 
 TABLE OF CASES CITED. 
 
 B^ffrences are to pages. 
 
 Bover v. Barkhoof (44 N. Y. 113), 156. 
 
 Howard v. Baboock (21 111. 259), 264. 
 
 V. DeL & H. C. Co. (40 Fed. Rep. 
 
 195, 6 L. K. A. 75), 96, 9a 
 V. Thompson (21 Wend. 319, 34 
 Am. De& 238), 70. 
 -HowdysheU v. Gary (21 IlL App. 288), 
 
 19. 
 Howe V. Newmarch (12 Allen, 49), 
 220. 
 V. White (49 Cal. 658), 15. 
 Howe Mach. Co., Carter v. (51 Md. 
 
 , 290, 34 Am. Rep. 311), 35. 
 Howell, Longshore Pub. & Printing 
 Co. V. (Oreg., 38 Pac. Rep. 547), 
 102. 
 Howland v. Blake Mfg. Co. (156 Mass. 
 543), 72. 
 V. Flood (160 Mass. 509), 70. 
 T. Town of Maynard (159 Mass. 
 434, 21 L. R. A. 500), 35. 
 Jloy V. Sterrett (2 Watts> 327), 242. 
 Hoyt V. Hudson (27 Wis. 656), 237, 238. 
 
 V. JeflEers (30 Mich. 181), 245. 
 JHubbard, Birmingham Water-works 
 Co. V. (85 Ala. 179, 4 So. 
 " Rep. 607), 220. 
 V. Preston (90 Mich. 221, 15 L. R 
 A. 249), 130. 
 BubbeU v. Warren (8 Alien, 173), 140. 
 V. Wheeler (2 Aik., Vt, 359), 84. 
 Huckenstein's Appeal (70 Pa. St. 103, 
 
 10 Am. Rep. 669), 248, 249. 
 Hudson V. Roberts (6 Exch. 697), 128. 
 United States v. (7 Cranch, 32), 
 166. 
 Hudson, York, etc. R. Co. v. (16 Beav. 
 
 485), 212. 
 Hudson R R. Co., Green v. (2 Keyes, 
 
 294), 93. 
 Hughes V. Railroad Ca (39 Ohio St 
 
 521), 224 
 Huguenin v. Baseley (14 Ves. 273), 
 
 317. 
 Hull V. Hall (78 Ma 114), 226. 
 Humes v. Taber (1 R I. 464), 108. 
 Humphries v. Brogden (12 Q. B. 739), 
 248. 
 
 Hunn V. Mich. Cent. R Co. (78 Mich. 
 513), 229. 
 
 Hunt v. Bates (7 R L 217), 39. 
 
 V. Great Northern Ry. (1891, 3 
 Q. B. 189), 72. 
 Hunter, little Rock, eta R. Co. v. (42 
 Ark. 200), 268. 
 V. Mathis (40 Ini 356), 160. 
 Huntley, Grand Rapids, etc. R Ca 
 V. (38 Mich. 537), 271. 
 V. Russell (13 Ohio St 572), 124 
 Huntingford v. Massey (1 F. & F. 
 
 690), 200. 
 Hurtert v. Wienes (27 Iowa, 134), 58. 
 Hurtin, Goshen Tunlpike Co. y. (9 
 
 Johns. 217), 275. 
 Hutchins V. Brackett (22 N. H. 252, 
 53 Am. D^c. 248), 153. 
 V. Hutchins (7 Hill, 104), 36, 37. 
 Hutchinson v. Cassidy_(46 Mo. 431), 
 187. 
 ■V. Railroad Co. (5 Exch. 343), 331, 
 228. 
 Hutchinson Smoke Burner Co., Flint 
 V. (110 Mo. 492, 16 L. R A. 343), 75. 
 Hyatt V. Adanas (16 Mich. 180), 80, 93. 
 
 V. Myers (71 N. C. 271), 250. 
 Hyde v. Cooper (26 Vt 552), 37. 
 Hydraulic Co., Everett v. (23 CaL 
 225), 235. 
 
 Illinois, etc. TeL Co., Sweetland v, (37 
 
 Iowa,' 433, 1 Am. Rep. 285), 272. 
 niinois Cent R Go. v. Cox (21 IlL 20), 
 
 222. 
 v. Crudup (63 Miss. 291), 97. 
 V. Hall (72 111. 222), 379. 
 V. Handy (63 Miss. 609), 370. 
 V. Latham (Miss., 16 So. Rep. 576), 
 
 220. 
 V. McClelland (42 111. 355), 345. 
 V. Miner (69 Miss. 710, 16 L. k A. 
 
 627), 271. 
 Philo V. (83 Iowa, 47), 94 
 V. Read (37 la 484), 290. 
 V. Slater (129 la 91, 6 L. R A. 
 
 418), 277. 
 V. Weldon (52 HL 390), 98. 
 Indianapolis, etc. R Co. v. McKiu- 
 n-ey (24 Ind. 283), 277. 
 
TABLE OF OASES CITED. 
 
 xlix 
 
 JBe/ere»ces are to pages. 
 
 :!^galls V. St. Paul, M. & M. R. Co. 
 
 (39 Minn. 479), 171. 
 Inhabitants of Charlotte v. Pem- 
 broke Iron Works (82 Me. 391, 8 
 
 L. E. A. 828), 256. 
 In re Acker (66 Fed. Rep. 290), 167. 
 
 Cooper (32 Vt. 253), 166. 
 
 Higgins (27 Fed. Rep. 443), 167. 
 
 Jacobs (98 N. Y. 98), 5. 
 Insurance Co., Doyle v. (95 U. S. 535), 
 292. 
 
 Van Slyke v. (39 Wis. 390, 20 Am. 
 Rep. 50), 165. 
 Int TeL Ca, True y. (60 Ma 9), 291. 
 International & G. N. R. Cp. t. Cooper 
 
 (Tex. Civ. App., 30 S. W. Rep. 
 
 470), 221. 
 Irlbeck V. Bierle (84 Iowa, 47), 61. 
 Irons V. Field (9 R. L 216), 6a 
 Irvone v. Wood (51 N. Y. 224, 10 Am, 
 
 Rep. 603), 255. 
 Irwm V. Mattox (138 Pa. St 466), 18. 
 Isaacs V. McNeil (44 Fed. Repi 33, 11 
 
 L. R. A. 254), 161. 
 Isbell T. New York, etc E. Co. (27 
 
 Conn. 393), 277. 
 Isham V. Post (141 N. Y. 100, 23 L. R. 
 
 A, 90), 262. 
 lyens. Rex v. (7 C. & P. 218), 266. 
 Ives V. Carter (24 Conn. 392), 195. 
 Ivey, Mo. Pac. R. Co. v. (71 Tex. 409, 
 
 1 U R. A. 500), 289. 
 
 J. 
 
 Jack y. HudnaU (25 Ohio St 225, 18 
 
 Am. Rep. 298), 130. 
 Jackson, Chicago, etc. R Co. v. (55 
 lU. 493, 8 Am. Rep. 661), 
 229. 
 
 y. Com'rs, etc. (76 N. C. 282), 285. 
 
 y. Ludeling (31 Wall. 616), 213. 
 
 v. Morse (18 Johns. 441), 187. 
 Jaoksonvllle, T. & K. W. R. Co. y. 
 
 Peninsular Land, etc. Co. (27 Fla. 
 
 157, 17 L. R A. 33), 246, 283. 
 Jacobs, (Jalena, etc. R Co. y. (20 ILL 
 
 478), 386. 
 Jacobs-Meyer y. PoggemoeUer (47 
 
 Mo. Ap. 560), 138. 
 
 Jamais y. Campbell (5 C. & P. 373), 
 49. 
 Rex v. (5 B. & Aid. 894), 167. 
 J' Anson y. Stuart (1 T. R 748, 2 Sm. 
 
 L. C, 8th Am. ed., 986), 65. 
 Jarmain y. Hooper (6 M. & G. 827), 
 
 164. 
 Jamigan v. Fleming (43 Miss. 710, 5 
 
 Aco, Rep. 514), 66. 
 Jarrett y. Apple (31 Kan. 693), 275. 
 Jaryis, Qrand Rapids Booming Co. 
 V. (30 Mich. 308), 118. 
 V. Hatheway (3 Johns. 180, 3 Am. 
 Dec. 473), 70. 
 Jayne v. Price (Ij Taunt 326), 120. 
 JeSerstfo, Richmond ^ D. R Ca y. 
 (89 Ga^ 554, 17 L. R A. 571), 
 104. 
 StatiB V. (66 N. C. 309), 165. 
 Jeflfersonyille R Co. y. Bowen (40 
 lud. 545), 287. 
 y. Rogers (38 Ind. 116, 10 Am. 
 Rep. 103), 34. 
 Jeffrey V. Bigelow (13 Wend. 518, 28 
 
 Am. Dea 476), 194 
 Jeffries y. Ankeny (11 Ohio, 372), 161. 
 y. Gt West R Co. (5 El. & BL 
 802), 178. 
 Jenkins v. Fowler (24 Pa. St 308). 298. 
 Jennings v. Rundajl (8 T. R 335), 30. 
 y. Tapoma R & M- Cp. (7 Wash. 
 275), 230. 
 Jerome v. Smith (48 Vt 230, 31 Am. 
 
 Rep. 135), 371. 
 Jessup's Estate, Re (81 CaL 408, 6 L. 
 
 R A. 594), 14. 
 Jewell V. G. T. R Co. (55 N. H. 84), 
 383. 
 y. Mahood (44 N. H. 474), 116. 
 Joannes y. Bennett (5 Allen, 169), 71. 
 
 y. Burt (88 Mass. 336), 64. 
 Jockers v. Borgman (29 Kan. 109), 92. 
 John, Gulf, C. & S. F. R Co. v. (29 a 
 
 W. Rep. 558), 98. 
 Johnson v. Barber (10 111. 425, 50 Am. 
 Dec. 416), 220. 
 V. Elkins (90 Ky. 163, 8 L. R A. 
 
 552), 185. 
 George H. Hammond Ca y. (38 
 Neb. 244), 237. 
 
TABLE OF CASES CITED. 
 
 References 
 
 Johnson v. Jones (44 HL 142), 293. 
 Macon, etc R. Co. v. (38 Ga. 409), 
 
 98. 
 V. Lewis (13 Conn. 307), 255. 
 V. Medlicott (3 P. Wms. 130), 
 
 210. 
 T. Miller (69 Iowa, 563, 58 Am. 
 
 Rep. 231), 54. 
 V. Miller (82 Iowa, 693, 47 N. W. 
 
 Rep. 903), 55. 
 V. Pie (1 Lev. 169, 1 SidL 258, 1 
 
 Keb. 905), 81. 
 V. Skillman (39 Minn. 95, 43 Am. 
 
 Rep. 193), 113. ■ 
 X. Terry (34 Conn. 259), 13. 
 V. Torpy (35 Neb. 604), 44. 
 V. St. Louis D. Go. (65 Mo. 539, 27 
 
 Am.,Rep. 293), 75. 
 V. State (3 Humph. 383), 51. 
 Johnston v. Alien (100 N. G. 131), 79. 
 Richmond & D. R. Go. ▼. (89 Ga. 
 
 560), 97. 
 Joliet V. Seward (86 111. 403), 889. 
 Jones V, Bates (26 Neb. 693, 4 L. R. 
 
 A. 495), 92. 
 V. Carey (Del., 31 AtL Rep. 976), 
 
 128. 
 ' T. Dashner (89 Mich. 246), 18. 
 Democrat Pub. Co. v. (83 Tex. 
 
 302), 74 
 V. Fletcher (41 Me: 354), 108. 
 V. GUdewell (53 Ark. 161, 7 L. R. 
 
 A. 831), 109. 
 V. Greeley (25 Fla. 629), 65. 
 T. Hodgkins (61 Me. 480), 181. 
 V. Kemp (49 Mich. 9), 265. 
 Louisville, fete. R. Co. v. (108 Ind. 
 
 551), 281. 
 V. Mich. Cent R. Co. (59 Mich. 
 
 165), 246. 
 V. Percival (5 Pick. 485), 140. 
 Railroad Co. v. (95 U. S. 539), 285. 
 v.Tevis (4 Litt 25, 14 Am. Dec. 
 
 98), 83. 
 v. "Wagner (66 Pa. St. 429, 5 Am. 
 
 Rep. 385), 248. 
 v. WiUiams (11 M. & W. 176), 251, 
 
 255. 
 T. Witherspoon (7 Jones' L. 555, 
 
 78 Am. Dec. 263), 136. 
 
 are to pages. 
 
 Jordan's Adm'r v. Gin., N. O. & T. P. 
 
 R. Co. (89 Ky. 40), 95, 97. 
 Jordan v. Ala. G. S. R. R. Co. (74 Ala. 
 85, 49 Am. Rep. 800), 35. 
 
 V. Hanson (49 N. H. 199, 6 Am. 
 Rep. 508), 160. 
 
 V. Wyatt (4 Gratt 151), 175. 
 Judd V. Ballard (66 Vt 668), 2. 
 Judge, State v. (45 La. Ann. 1250), 
 
 167. 
 Junction City, etc. Co., Fogarty t. 
 
 (50 Kan. 478, 18 L. R. A. 756), 249. 
 
 K. 
 
 Pa. St 179), 
 
 Kaine v. Weigley 
 
 191. 
 Kaiser, State v. (20 Greg. 50, 8 I* E. 
 
 A. 854), 165, 167. 
 Kamphouse v. GafiEner (73 HL 453), 
 
 115. 
 Kansas City Inv. Co., Lorenzen v. 
 
 (Neb., 63 N. W. Rep. 231), 191. 
 
 Kansas City, etc. R. Co., Abbott v. 
 
 (83 Mo. 271), 237. 
 
 Childs V. (117 Mo. 414), 124. 
 
 Ellis V. (63 Mo. 131), 251. 
 
 McGormiok v. (70 Ma 359), 239. 
 
 Relyea v. (113 Mo. 86, 18 L. R. A. 
 817), 94 
 
 v. Riley (38 Kan. 374), 288. 
 
 V. Ryan (53 Kan. 637), 237. 
 
 Schmidt v. (90 Mo. 284), 253. 
 
 Winter v. (99 Mo. 509, 6 L. R. A. 
 536), 288. 
 Kansas City Times, Edwards v. (33 
 
 Fed. Rep. 813), 74 
 Kaucher v. Blim (29 Ohio St 62, 2a 
 
 Am. Rep. 727), 63. 
 KauflEman v. Griesemer (26 Pa. St 
 
 407), 237, 239. 
 Ks,y V. Jansen (87 Wis. 118), 65. 
 ^ V. Pa. R Co. (65 Pa. St 269, 8 Am. 
 Rep. 628), 112, 287. 
 Kean v. Det Copper, etc. Ca (66 
 
 Mich. 277), 222. 
 Keegan v. Geraghty (101 lU. 26), 14^ 
 
 V. Hayden (14 R. I. 175), 39. 
 
 V. West E. Co. (8 N. Y. 175, 5» 
 Am^ Dec. 476), 32a 
 
TABLE OF OASES CITED. 
 
 li 
 
 Befereruxa are to pages. 
 
 Eeene v. Tribune Assa (76 Hun, 488), 
 
 ea 
 
 Keeney v. G. T. R. Co. (47 N. Y. 525), 
 
 ' 26& 
 Keeney, eta Mfg. Co. v. Union Mfg. 
 
 Ca (39 Conn. 576), 241. 
 Keep V. Quallman (68 Wis. 451), 49. 
 Keffe V. Milwaukee, eta R. Co. (21 
 
 Minn. 207), 113. 
 Kehler v. Schwenk (144 Pa. St 348, 
 
 13 L. E. A. 374), 226. 
 Keiley v. West U. TeL Ca (109 N. 
 
 Y. 231), 272. 
 Keith V. Howard (24 Pick. 292), 148. 
 Keiley v. Flaherty (16 it L 234), 
 
 61. 
 KeUogg V. Thompson (66 N. Y. 88), 
 
 256. 
 KeUy, East Tenn., V. & G. R Ca v. 
 (91 Tenn. 699, 17 L. R A. 
 691), 269. 
 Essex Ca Electric Ca v. (N. J., 
 
 29 AtL Eep. 437), 22& 
 LouisTilIe, eta R Ca v. (92 IndL 
 
 371), 271. 
 T. Eiley (106 Mass. 339, 8 Am. 
 
 Kep. 336), 207. 
 Transfer Ca v. (116 XT. S. 366), 289. 
 Kelsey v. Berry (42 IlL 469), 267. 
 Kelton V. Taylor (11 Lea, 264), 265. 
 Kem T. Union, eta Ca (90 Ma 314), 
 
 277. 
 Kemmish v. Ball (30 Fed. Rep. 759), 
 
 254 
 KendaU v. Tracy (64 Vt 522), 172. 
 Kennebeck, eta Co., Rogers v. (86 
 
 Me. 261, 25 L. R A, 491), 200. 
 Kennedy y. Gies (25 Mich. 83), 165. 
 Northern R Co. v. (4 Exch. 417), 
 
 275. 
 V. Shea (110 Mass. 147, 14 Am. 
 
 Rep. 584), 84. 
 V. Standard Sugar Refinery (25 
 Mass. 90, 28 Am. Rep. 214),. 
 94. 
 Kennett v. Durgin (59 N. H. 560), 
 
 127. 
 Kent V. Bongarty (15 R L 73), 70. 
 Kerby, State v. (110 N. C. 558), 13. 
 Kershaw v. Bailey (1 Exch. 748), 70. 
 
 Kerr v. Forgue (54 111. 482, 5 Am. 
 Rep. 146), 288. 
 
 V. Kingsbury (39 Mich. 150, 33 
 Am. Rep. 362), 172. 
 
 P. R Ca V. (62 Pa. St 853), 22. 
 Kerwhacker v. Cleveland, C. & C. R 
 
 Ca (3 Ohio St 172, 62 Am. Dea 
 
 246), 126. 
 Ketcham v. Newman (141 N. Y. 205, 
 
 24 L. R A. 102), 224, 247. 
 Kidd V. Ward (Iowa, 59 N. W. Rep. 
 
 279), 62. 
 Kidder v. Boom Ca (24 Pa. St 193), 
 
 275. 
 Kiene v. Ruff (1 Iowa, 482), 58. 
 Killmer v. Wtachner (17 Iowa, 722, 
 
 8 L. R A. 289), 172. 
 Kilsem, State v. (130 Ind. 434, 14 L. 
 
 R A. 566), 293. 
 Kimball v. Bates (50 Me. 308), 55. 
 
 V. Bath (38 Me. 219), 261. 
 
 V. Billings (55 Me. 147, 92 Am. 
 Dea 581), 182. 
 
 V. Harmon (34 Md. 407, 6 Am. 
 Rep. 340), 36, 201. 
 Kincheloe v. Priest (89 Mo. 240), 
 
 265. 
 King v. Boston, eta R Ca (9 Cush. 
 112), 226. 
 
 V. Goodwin (16 Mass. 63), 187. 
 
 V. Hoare (13 M. & W. 494), 39. 
 
 V. Miller (99 N. C. 583), 124 
 
 V. New York, eta R Ca (66 N. Y. 
 181, 23 Am. Rep. 37), 224 
 
 V. Patterson (49 N. J. L. 417), 67, 
 72. 
 
 People V. (110 N. Y. 418, 1 L. R 
 A. 293), 104 
 
 V. Richards (16 Whart 418, 37 
 Am. Dea 420), 179. 
 
 Rochdale Canal Ca v. (14 Q. B. 
 134), 20. 
 Kinkead v. United States (150 U. S. 
 
 483), 171. 
 Kinnaird v. Standard Oil Co. (89 Ky. 
 
 468, 7 L. R A. 451), 249. 
 Kinney v. Cent R Ca (33 N. J. 407, 
 
 34 N. J. 513), 390. 
 Kirk, North Pa. Ca v. (90 Pa. St 15), 
 
 97. 
 
lii 
 
 TABLE OF CASES CITED. 
 
 References are to pages. 
 
 Kirkman v. Handy (11 Humph. 406), 
 
 251. 
 Kirkpatrick v. Eagle Lodge (26 Elan. 
 
 384), 40 Am. Rep. 316), 70. 
 Kitteringham v. Sioux City, etc. Co. 
 
 (62 Iowa, 285), 226. 
 Kizziah, Gulf, C. & S. F. R. Co. v. (86 
 
 Tex. 81), 322. 
 KHx V. Nieman (68 Wis. 271), 253. 
 Knight V. Foster (39 N. H. 576), 75. 
 
 V. West Jisrsey R. Co. (108 Pa. 
 St. 250). 94. 
 Knok V. Independence Board of Ed. 
 
 (45 Kan. 152, 11 L. R. A. 830), 105. 
 
 Knowles V. Mulder <74 Mich. 203, 16 
 
 Am. St. Rep; 627), 128, 129. 
 
 T. Peck (42 Conn. 386, 19 Am. 
 Rep. 543), 71. 
 Knowlton v. Holt (N. H., 30 AtL Rep. 
 
 346), 234 
 Knox V. Chaloner (42 Me. 150), 256. 
 Koelsch V. Philadelphia (152 Pa. St. 
 
 355, 18 L. R. A. 759), 246. 
 Koestel v. Cunningham (Ky., 30 S. 
 
 W. Rep. 970), 130. 
 Kost V. Bender (25 Mich. 515), 195. 
 Kowing V. Manley (49 N. Y. 192, 10 
 
 Am. Rep. 346), 32. 
 Kraemer v. Deustermann (37 Minn. 
 
 469), 205. 
 Kramer v. Williamson (135 Ind. 655), 
 
 199. 
 Kxegel V. Bartling (23 Neb. 848), 166. 
 Kreiger, Ex parte (7 Mo. App. 367), 
 
 166. 
 Kroessin v. Keller (Minn., 62 N. W. 
 
 Rep. 438), 81. 
 Krug y. Ward (77 BL 608), 56. 
 kuns V. Robertson (DL, 40 N. E. Rep. 
 
 343), 106. 
 Kusworm, City Nat Bank v. (26 L. 
 
 R A. 48), 205. 
 
 L. 
 
 La Clear v. Perkins (Mich., 26 L. R. A. 
 
 627), 54. 
 Laclede G. Co., Lampert v. (14 Mo. 
 
 App. 376), 146. 
 Lacloch V. Towle (3 Esp. 114), .179. 
 
 La Croix t. May (15 Fed. Rep. 236),. 
 
 138. 
 La Crosse, etc. Co., Black River, etc 
 
 Ca T. (54 Wis. 659), 241. 
 Lacy V. Amett (33 Pa. St 169), 115. 
 Ladd V. New Bedford R Ca (119> 
 Mass. 412, 20 Am. Rep. 331), 
 228, 230. 
 
 V. Rice (57 N. H. 374), 216. 
 Lade v. Sheperd (2 Strob. 1004), 116.^ 
 Lady Ensley, eta Co., Drake v. (Ala.,. 
 
 24 L R. A. 64), 243. 
 Lafitte V. New. Orleans City & L. R. 
 
 Co. (43 La. Ann. 34, 12 L. R A. 
 
 337), 320. 
 Laing v. Colder (8 Pa. St 479), 280. 
 Lake Ca, Holden v. (53 N. H. 553), 
 
 242. 
 Lake Erie, etc R Co. v. Acres (108 
 Ind. 548), 270. 
 
 V. Bailey (61 Fed. Rep. 494), 103. 
 lAte Shore & M. S. R Ca v. Miller- 
 (35 Mich. 274), 289. 
 
 V. Stupak (123 Ind. 310), 328. 
 
 Walker v. (Mich., 63 N. W. Rep> 
 1033), 96. 
 Lamar v. Dillon (33 Fla. 545, 32 L. R 
 
 A^ 134), 12. 
 Lamar Ins. Ca, Meloin v. (80 BL 446), 
 
 3ia 
 Lamb v. Taylor (67 Md.-85), 84 
 Lambert v. Alcorn (144 111. 313, 31 L. 
 
 R A. 611), 337, 238. 
 Lampert v. Laclede G. Ca (14 Mo^ 
 
 App. 376), 146. 
 Lamphey v. State (53 Minn. 181, 18 
 
 L. R A. 670), 118. 
 Lancaster Co. Bank v. Albright (21 
 
 Pa. St 328), 194 
 Lander v. Seaver (33 Vt 114, 76 Am. 
 
 Deal56),51. 
 Landis v. Campbell (79 Mo. 433, 49 
 
 Am. Rep. 339), 70. 
 Landon v. Emmons (97 Mass. 37), 181.. 
 
 V. Humphrey (9 Conn. 309), 373. 
 Lane v. Cotton (1 Ld. Eaym. 646), 153. 
 
 V. Miller (27 Ind. 534), 114 
 
 V. Thompson (43 N. H. 820), 120. 
 Lange v. Benedict (73 N. Y. 12, 39' 
 
 Am. Rep. 80), 164 
 
TABLE OF OASES CITED. 
 
 liii 
 
 Eeferenees are to pages. 
 
 Lailgenberg v. Decker (1,31 Ind. 471, 
 
 16 L. R. A. 108), 166. 
 Laning v. N. Y. G R Co. (49 N. Y. 
 
 531, 10 Am. Rep. 417), 233, 328. 
 Lanning v. Christy (3 Ohio St. 115, 
 
 27 Am. Eep. 431), 69. 
 Lapsley, Union Pac. R. Co. v. (4 U. S. 
 
 App. 542, 16 L. R. A. 800), 289. 
 Larich v. Moies (R. L, 38 Atl. Rep. 
 
 661), 325. 
 Lari^on v. liarison (9 HL App. 87), 81. 
 Larson v. Chase (47 Minn. 307, 14 L. 
 R. A. 85), 88. 
 V. Furlong (63 Wis. 333), 258. 
 T. Met. R Co. (110 Mo. ^34, 16 L. 
 R A. 330), 247. , 
 Latham, IlL Cent. R Co. y. (Miss., 16 
 
 So. Rep. 576), 220. 
 Lathrop, Thames Mfg. Co. v. (7 Conn. 
 
 550), 107. 
 Lailghman v. Piper (138 Pa. St. 1, 5 
 
 L. R A. 559), 137. 
 Laureandeau v. Fugelli (Wash., 33 
 
 Paa Rep. 465), 173. 
 Laverty V. Snethen (68 N. Y. 532), 180. 
 Lavery V. Crooke (52 Wis. 613, 38 
 
 Am. Rep. 768), 84. 
 
 Lawler v. Androscoggin R Co. (62 
 
 Me. 463, 16 Am. Eep. 493), 222, 223. 
 
 Lawrence v. Green (70 CaL 417), 281. 
 
 Locklvood, etc. Co. v. (77 Me. 
 
 297); 234 
 V. Shipman (39 Conn. 586), 324. 
 Lawrence, etc. Co. v. Woolen Mills 
 (139 Mass. 325, 37 Am. Eep. 363), 
 136. 
 Lawrence Mfg. Co. v. Tenn. Mfg. Co. 
 
 (138 U. S.' 537), 136. 
 Lawson v. Conaway (37 W. Va. 159, 
 18 L. R A. 627), 374. 
 v. Steele (119 N. Y. 236, 7 L. E. 
 A. 134)) 122. 
 Lawyer v. Fritcher (130 N. Y. 239, 14 
 
 L. R. A. 700), 83, 85, 89. 
 Lawyers' C. P. Co., West Pub. Co. 
 V. (64 Fed. Rep. 360, 35 L. R A. 
 441), 134. 
 Lazarus v. Phelps (153 U. S. 81), 18.- 
 Lea V. White (4 Sneed, 73, 67 Am. 
 Dec. 599), 69. 
 
 Leachman v. Dougherty (81 111. 324), 
 
 188. 
 L. L. & G. R Co. V. Maris (16 Kan. 
 
 334), 269. 
 Leah&y V. M&rch (155 Pa. St. 458). 55. 
 Learoyd v. Godfrey (138 Mass. 315), 
 
 253. 
 Lebbering v. Strnthers (157 Pa. St., 
 
 312), 33a 
 Lecroy v. State (89 Ga. 335), 68. 
 Lee V. Pembroke Iron Co. (57 Me. 
 
 481), 257. 
 Lee Co. v. Yarbrongh (85 Fla. 590), 18., 
 Lehew v. Brummell (103 Mo. 546, 11 
 
 L. R A. 828), 105. 
 Lehigh Co. V. Field (8 W. & S. 232),. 
 
 17ft 
 Lehigh & W. Coal Co. v. Hayes (128 
 
 Pa. St 294, 5 L. R A. 441), 336. 
 Leighton v. Sargent (27 N. H. 460),. 
 273. 
 
 V. Young (10 U. S. App. 398, 18 
 L. R A. 366), 173. 
 Lembeck v. Nye (47 Ohio St.' 336, 8 
 
 L. R A. 578), 118. 
 Lenox v. Clarke (53 Mo. 115), 187. 
 Leonard v. Columbia, etc. Co. (84 
 N. Y. 48, 38 Am. Rep. 491), 
 94. 
 
 V. Storer (115 Mass. 86, 15 Am. 
 , Rep. 76), 354 
 Le Page Co. v. Russia Cement Co. (5 
 
 U. S. App. 113, 17 L. R A. 354), 
 
 137. 
 Lepnick v. Gaddis (Miss., 26 L. R A., 
 
 686), 386, 287. 
 Leslie v. Lewiston (62 Me. 468), 287.. 
 Lewis V. Clark (59 Vt. 363), 183. 
 
 V. Hawley (2 Day, 495, 3 Am. 
 Dec. 121), 63. 
 
 V. Levy (El., B. & El. 537), 73. 
 
 V. McGuire (3 Bush, 202), 110. 
 
 V. Read (13 M. & W. 834), 37. 
 Lewton v. Hower (Fla., 16 S. E. Rep. 
 
 616), 54 
 Lightly V. Clouston (1 Taunt. 113),. 
 
 109. 
 Like V. McKinstry (41 Barb. 186), 76. 
 
 V. Van Leuven (4 Den. 137, 1 N. Y. 
 515), 137. 
 
Mv 
 
 TABLB OP CASES CITED. 
 
 Be/eremce* 
 
 iiiles V. Gaster (42 Ohio St 631), 68. 
 LiUey, People v. (43 Mich. 521), 47. 
 Limerick v. Murlatt (43 Kan. 318), 
 
 165. 
 Lincoln v. Chadbourne (56 Me. 197), 
 16, 240. 
 
 V. Hapgood (11 Mass. 350), 161. 
 •Lincoln Rapid Transit Co., SpeUman 
 
 V. (36 Neb. .890, 20 L. R. A, 316), 
 
 268.- 
 liindley v. Horton (27 Conn. 58), 65. 
 
 V. Smith (6 Munf. 134), 124. 
 Lingen v. Lingen (45 Ala. 410), 14. 
 Lining v. Bentham (2 Bay, 1), 166. 
 Xipe T. Eisenlerde (32 N. Y. 229), 85. 
 Liptrot V. Holmes (1 KeUey, 381), 180, 
 
 181. 
 Litchfield, State, V. (58 Me. 267), 107. 
 Liittle V. Brockton (123 Mass. 511), 38i 
 
 V. Hackett (116 V. S. 366), 289. 
 Little wood v. Mayor, etc. (89 N. T. 
 
 24, 42 Am. Rep. 271), 93: 
 :Little Miami R. Co. v. Stevens (20 
 
 Ohio, 415), 222. 
 Little Rock & M. R. Co. v. Barry (58 
 Ark. 198, 25 L. R. A. 386), 
 223. 
 
 T. Hunter (42 Ark. 200), 568. 
 Little Schuylkill, etc. Co. v. Rich- 
 ards (57 Pa. St 142), 234 
 Livingston v. Bishop (1 Johns. 290, 
 3 Am. Dec. 330), 39, 40. 
 
 V. Jefferson (1 Brock. 203), 188. 
 
 V. McDonald (21 Iowa, 160), 239. 
 Lloyd V. KeUy (48 IlL App. 554). 91. 
 LKjad V. Green (15 M. & W. 216), 193. 
 Loan V. Boston (106 Mass. 450),-260. 
 Lock, Reg. V. (12 Cox C. C. 244), 48. 
 Lockenour v. Sides (57 Ind. 360, 26 
 
 Am. Rep. 58), 56. 
 Lockwood, N. T. Cent R. Ca v. (84 
 
 U.S. 357), 290. 
 Lockwood, etc. Co. v. Lawrence (77 
 
 Me. 297), 234 
 Loeb, Chicago, etc. Co. v, (118 IlL 
 
 203), 257. 
 Loeser v. Humphrey (41 Ohio St. 
 
 378), 288. 
 Loftus IronCo., EUis v. (L. R. 10 C. 
 
 'p. 10), 127. 
 
 are to pages. 
 
 London, etc. R. Co., Carpue v. (5 Q. 
 B. ';'47), 281. 
 
 Richards v. (7 C. B. 839), 267. 
 
 Shelton v. (L. R. 2 C. P. 631), 281. 
 London & S. W. R Co., Poulton v. 
 
 (L. R 2 Q. B. 535), 44 
 Long V. Long (57 Iowa, 497), 161. 
 
 V. McDow (87 Mo. 197), 121. 
 
 V. Minneapolis (Minn., 63 N. W, 
 Rep. 174), 258. 
 
 V. Warren (68 N. Y. 426), 197. 
 Longendyke v. Longendyke (44 Barb. 
 
 366), 81. 
 Long Island, eta R. Co., Eckert v. 
 
 (43 N. Y. 502), 287. 
 Long Island R. Co., Feeney v. (116 
 
 N. Y. 375, 5 L. R. A. 544), 217. 
 Longshore Printing & Pub. Ca v. 
 
 Howell (Oreg., 38 Pac. Rep. 547), 
 
 102. 
 Look V. Dean (108 Mass. 116, 11 Am. 
 
 Rep. 323), 53. 
 Loomis V. Terry (17 Wend. 496, 31 
 
 Am. Dea 308), 46, 129. 
 Loop V. Litchfield (43 N. Y. 351), 246. 
 Lord V. Tiffany (98 N. Y. 412, 50 Am. 
 Rep. 689), 40. 
 
 V. Wormwood (29 Me. 282, 50 
 Am. Dec. 586), 126. 
 Lorenzen v. Kansas City Inv. Ca 
 
 (Neb., 62 N. W. Rep. 231), 191. 
 Lorman v. Benson (8 Mich. 18), 117. 
 Loughran v. Ross (45 N. Y. 792, 6 
 
 Am. Rep. 173), 172. 
 L. & N. R Co., Louisville, etc. Trust 
 Ca v. (92 Ky. 233, 14 L. R 
 A. 579), 11. 
 
 Tanner v. (60 Ala. 621), 285. 
 Louisiana Electric Co., Clements v. 
 
 (44 La. Ann. 692, 16 L. R A. 43), 
 
 280, 281. 
 Louisville & A. R Co., Thompson v. 
 
 (91 Ala. 496, 11 L. R A. 146), 
 Louisville Coflin Co. v. Warren (78 
 
 Ky. 400), 250. 
 Louisville, etc. Trust Co. v. L. & N. 
 
 R Ca (92 Ky. 233, 14 L. R A, 
 
 579), 11. 
 LouisviUe, N. A. & C. R Co. v. Buck 
 
 (116 Ind. 566, 3 L. R A. 520), 46. 
 
TABLE OV CASES CITED. 
 
 It 
 
 Beferences are to pages. 
 
 Louisville, N. O. & T. R. Ca v. Doug- 
 lass (60 Miss. 723, 30 Am. 
 St. Rep. 583), 220! 
 
 V. Gilbert (88 Tenn. 430, 7 L. R. 
 A. 163), 390. 
 
 V. Hall (87 Ala. 708, 4 L. R. A. 
 710), 384. 
 
 V. Jones (108 Ind. 551), 381. 
 
 V. Kelly (92 Ind. 371), 371. 
 
 V. Nitsche (126 Ind. 229, 9 L. R. 
 A. 750), 344 
 
 V. Snider (117 Ind. 435, 3 L. R. A. 
 434), 380. 
 
 V. State (2 Inters. Com. Rep. 615, 
 66 Miss. 663, 5 L. Jl. A. 132), 
 103. 
 
 V. Wilson a32 Ind. 517, 18 L. R. 
 A. 105), 268. 
 Love, Pullman Palace Car Co. v. (38 
 
 Neb. 339, 6 L. R. A. 809), 266. 
 Lovejoy v. Murray (3 WalL 1), 184. 
 Loveland v. Burke (130 Mass. 139, 31 
 
 Am. Rep. 507), 368. 
 Lovell v. Houghton (116 N. Y. 530, 6 
 
 L. R. A. 363), 71. 
 Lowe V. State (9 Ohio St. 337), 167. 
 Lowremore v. Berry (19 Ala« 130, 54 
 
 Am. Dec. 188),. 179. 
 Lowther v. Lowther(13 Ves. 95), 214. 
 Luebke v. BerUn Mach. Works (88 
 
 Wis. 443), 226. 
 Lueck v. Heisler (87 Wis. 644), 54 
 Lumby v. AUday (1 Cromp. & J. 
 
 301, 1 Tyrw. 217), 63. 
 Lumley v. Gye (2 EL & Bl. 216), 101. 
 Lunsford v. Dietrich (93 Ala. 565), 
 
 55. 
 Luther v. Borden (7 How. 1), 110. 
 Lutz v. AtL & Pac. R. Co. (N. M., 16 
 
 L. R. A. 819), 94 239. 
 Lux v. Haggin (69 Cal. 355), 240. 
 Lybe's Appeal (106 Pa. St. 626), 340. 
 Lyman v. Boston & M. R. Co. 66 N. 
 
 H. — , 11 L. R. A. 364), 384 
 -Lynch v. Smith (104 Mass. 53, 6 Am. 
 
 Rep. 188), 287, 388. 
 Lynn v. Adams (3 Ind. 143), 156. 
 Lyon V. Fairbank (79 Wis. 455, 24 
 
 Am. St. Rep. 732), 46. 
 Lytton V. Baird (95 Ind. 349), 54 
 
 E 
 
 M. 
 
 McAfee, Com. v. (108 Mass. 458, 11 
 Am. Rep. 383), 77. 
 
 State V. (107 N. C. 812, 10 L. R. 
 A. 607), 47. 
 McAllister v. Detroit Free Ptess Co. 
 (85 Mich. 453), 66. 
 
 V. Detroit Free Press Co. (76 
 Mich.- 338), 75. 
 McCandless v. McWha (22 Pa. St. 
 
 261), 273. 
 McCants v. Bee (1 McCord's Ch. 383, 
 
 16 Am. Dec. 610), 314 
 McCarthy v. Chicago, etc. R. Co. (18 
 Kan. 46, 36 Am. Rep. 743), 
 94 
 
 V. Niskem (33 Minn. 90), 366. 
 McCartney v. Garnhart (45 Mo. 593, 
 
 100 Am. Dec. 397), 136. 
 McCaskill v. Elliott (5 Strob. L. 196, 
 
 53 Am. Dec. 706), 139. 
 McClafferty v. Philip (151 Pa. St 86), 
 
 54 
 McClelland, lU. Cent. R. Co. v. (43 ■ 
 
 BL 355), 345. 
 McClelland Bros., Clarendon Land, 
 
 etc. Co, V. (86 Tex. 179, 32 L. R. 
 
 A. 105), 127. 
 McClung V. Dearborne (134 Pa. St. 
 
 396, 8 L. R. A. 204), 319, 331. 
 McCiure v. Hill (86 Ark. 268), 163. 
 McConeghy v. McCaw (31 Ala. 447), 
 
 i79. 
 McConnell v. Dewey (5 Neb. 385), 156. 
 McCormack v. Terre Haute, etc. R. 
 
 Co. (9 Ind. 283), 275. 
 McCormick v. Kan. C. etc. R. Co. (70 
 Mo. 359), 239. 
 
 V. Sisson (7 Cow. 715), 56. 
 McCoy V. Trucks (121 Ind. 292), 86. 
 McCrilUs V. Hawes (38 Me. 566), 40. 
 McCullock V. Scott (13 B. Mon. 172, 
 
 56 Am. Dec. 561), 204 
 McCurdy, Pittsburgh, etc. R. Co. v. 
 
 (114 Pa. St. 554), 67. 
 MoDaniel v. Tebbetts (60 N. H. 497), 
 
 161. 
 McDonald v. Newark (43 N. J. Eq. 
 
 136), 358, 
 
Ivi 
 
 TABLE OF CASES CITED. 
 
 Seferencea are to pages. 
 
 McBonald, ITnion Pacific R. Co. v. 
 
 (152 U. S. 262), 287. 
 McDonough, Mich. South. R Co. v. 
 
 (21 Mich. 165), 268. 
 McFadden v. Miss. P. R. Co. (92 Mo. 
 343), 290. 
 
 V. Santa Anna, etc. R. Co. (87 
 
 CaL 464 11 L. R. A. 252), 80. 
 
 McGill, West. U. TeL Co. v. (57 Fed. 
 
 Rep. 699, 21 L. R. A. 818), 95. 
 McGonigle v. Atchison (33 Kan. 726), 
 
 189. 
 McGowan v. Morgan's L. & T. R. & 
 
 S. Co. (41 La. Ann. 733, 5 L. R. A. 
 
 817), 371. 
 McGuire, BartonshUl Coal Co. v. (3 
 
 Macq. H. L. 800), 327. 
 McKeel v. Bass (5 Cold. 151), 31. 
 McKendry v. McKendry (131 Pa. St. 
 
 24i 6 L. E. A. 506), 81. 
 McKenzie, B. etc. R. Co. v. (81 Va. 
 71), 284' 
 
 V. Choim (1 McMul. 222), 156. 
 McKeon v. See (51 N. Y. 300), 250. 
 McKeown v. Johnson (1 McCord, 
 
 578, 10 Am. Dec. 698), 31. 
 McKinney, Indianapolis, etc. R. Co. 
 
 V. (24 Ind. 283), 277. 
 McKinnon v. VolLnar (75 Wis. 83,' 6, 
 
 L. R. A. 131), 302. 
 McKissock v. St. Lonis, etc. R. Co. 
 
 (73 Mo. 450), 281, 
 McKone v. Mich. Cent. R. Ca (51 
 
 Mich. 601), 113. 
 McLain, Canton Surgical & D. Chair 
 
 Co. V. (83 Wis. 93), 64 
 McLanahan, Cumberland V. R. Co, v. 
 
 (59 Pa. St. 23), 114 
 McLeod V. McLeod (4 Montreal L. 
 
 Rep. 843), 62. 
 McMahon t. North Cent. R. Co. (89 
 Md. 438), 284 
 
 V. Sankey (133 DL 636), 91, 92. 
 McMannus v. Lee (43 Mo. 206, 97 Am. 
 
 Dec. 386), 38. 
 McManus t. Crickett (1 East, 106), 
 
 320. 
 McMillan v. Birch (1 Binn. 178), 63. 
 McMurry v. Martin (36 Mo. App. 437), 
 
 65. 
 
 McNab V. Bennett (64 IlL 158), 57. 
 McNevins v. Lowe (40 IlL 309), 274 
 McPherson v. Daniels (10 B. & C, 
 
 372), 10. 
 McQuilken v. Cent. Pac. R. Co. (5a 
 
 CaL 7), 284 
 McVeety v. St. Paul, etc. R. Co. (4& 
 
 Minn. 268, 11 L. R A. 174), 370. 
 Mackin v. United States (117 U. S, 
 
 348), 60. 
 Macomber v. Nichols (34 Mich. 212, 
 
 22 Am. Rep. 533), 358. 
 Macon, etc. R. Co. v. Johnson (38 Ga» 
 
 409), 98. 
 Magee v. HoUand (37 N. J. 86, 72 Am. 
 
 Dec. 341); 82. 
 Mahan v. Brown (13 Wend. 261), 293. 
 Mahone v. N. Y. C. R Ca (34 N. Y. 
 
 658), 359. 
 Mahoney, North Pac. R Co. v. (57 
 
 Pa. St. 187), 288. 
 Main v. Main (46 HL App. 106), 77, 81. 
 Ma;ine Cent. R Co., N. E. Exp. Ca v. 
 (57 Me. 188), 368. 
 
 O'DonneU v. (35 L R A. 658), 98. 
 
 State V. (76 Me. 357), 97. 
 Mains v. Whiting (87 Mich. 173), 63. 
 Mainwaring v. Brandon (8 Taunt. 
 
 203), 43. 
 Malachy v. Soper (3 Bing. N. C. 371), 
 
 75. 
 Maliniemi v. Gronlund (93 Mich. 
 
 333, 31 Am. St. Rep. 576), 53. 
 Malone, Com. v. (114 Mass. 395), 49. 
 
 V. Hathaway (64 N. Y. 5, 21 Am. 
 Rep. 573), 323, 330, 353. 
 
 V. Hawley (46 CaL 409), 227. 
 
 Susquehanna Fertilizer Co. v. 
 
 (73 Md. 268, 9 L. R A, 737), 
 
 358. 
 
 Maltby v. Chapman (35 Md. 310), 267. 
 
 Manchester v. Ericsson (105 U. S. 
 
 347), 260. 
 
 State V. (53 N. H. 538), 285. 
 
 V. Wallis (14 C. B. 313, 25 Eng. 
 L. & Eq. 878), 276. 
 Mangam v. Brooklyn R Co. (38 N. 
 
 Y. 455), 388. 
 Mangan v. Atterton (L. R 1 Exch. 
 
 389), 353. 
 
TABLE OF OASES CITED. 
 
 Ivii 
 
 Beferences are to pages. 
 
 Manhattan E. Co., Abendroth v. (133 
 
 N. Y. 1, 11 L R. A. 634), 393. 
 Mann v. Oriental Print Works (11 
 
 E. 1. 153), 230. 
 Manning v. Holleftbeck (37 Wis. 303), 
 
 367. 
 Mansfield v. Watson (3 Iowa, 111), 
 
 310. 
 Manvell v. Thomson (3 C. & P. 303), 
 
 84 
 Marble t. Ross (24 Mass. 44), 139. 
 Maris, L. L. & G. R. Co. v. (16 Kan. 
 
 333), 269. 
 Markham v. Brown (8 N. H. 523), 103. 
 Markley v. Whitman (95 Mich. 336, 
 
 30 L. R A. 55, 35 Am. St. Rep. 
 
 558), 48. 
 Markover v. Krauss (133 Ind. S94 17 
 
 L. R. A. 806), 14 
 Marks v. Hastings (101 Ala. 165), 55. 
 Marsan v. French (61 Tex. 173), 349. 
 Marsh v. Colby (39 Mich. 636), 123. 
 
 Y. Jones (21 Vt. 378, 52 Am. Dec. 
 67), 129. 
 
 V. Loader (14 C. B., N. S., 535), 53. 
 
 V. Whitmore (21 Wall. 178), 314 
 Marshall v. Cohen (44 Ga. 489, 9 Am. 
 Rep. 170), 233. 
 
 V. Steam Nav. Co. (3 B. & S. 732), 
 133. 
 
 T. Stewart (3 Macq. H. L. 30), 335. 
 Martin t. Hamlin (18 Mich. 354, 100 
 Am. Dec. 181), 196. 
 
 V. Jordan (60 Me. 531), 197, 301. 
 
 V. Riddle (26 Pa. St. 415), 337. 
 
 V. Robson (65 IlL 129, 16 Am. Rep. 
 578), 81. 
 
 V. Shoppee (8 C. & P. 373), 47. 
 
 V. Taegue (3 Speers, 260), 206. 
 
 V. Waddell (16 Pet. 367), 118. 
 Marvin v. C, M. & St. P. R. Co. (79 
 Wis. 140, 11 L. R. A. 506), 
 345. 
 
 Mayville W. R. Co. v. (59 Fed. 
 Rep. 91), 94 
 Mason, Mississippi Cent. R. Co. v. (51 
 Miss. 234), 243. 
 
 V. Thompson (9 Pick. 380), 266. 
 Mass. Mut. Ins. Co., Hays v. (125 III. 
 
 626, 1 L. R. A. 303), 181. 
 
 Matheis v. Mazet (164 Pa. St. 580), 78. 
 Mather v. Chapman (40 Conn. 383, 15 
 
 Am. Rep. 46), 139. 
 Mathews v. Cowan (59 111. 841), 31. 
 Matter of Ryers (72 N. Y. 1), 164 
 Matter of Turner (1 Abb., U. S., 84), 
 
 106. 
 Matteson v. N. Y. C. R. Co. (35 N. Y. 
 
 487), 79. 
 Matthews, Com. v. (153 Pa. St. 166„ 
 18 L. R. A, 761), 45. 
 
 V. Dixey (149 Mass. 595, 5 L. R. A, 
 102), 142. 
 
 Y. St. Louis, etc. R Co. (131 Mo. 
 398, 25 L. R. A. 161), 245. 
 
 V. Smith's Exp. Co. (23 N. Y, 
 Supp. 182), 175. 
 
 State V. (37 N. H. 450), 166. 
 Mattise v. Consumers' Ice Mfg. Coi. 
 
 (La., 16 So. Rep. 400), 380. 
 Matts V. Hawkins (5 Taunt. 20), 143. 
 Maulsby v. Reifsnider (69 Md. 162), 
 
 69. 
 Maurice v. Worden (54 Md. 338, 39 
 
 Am. Rep. 384), 70. 
 May V. Burdette (39 Q. B., N. S., 101), 
 
 130. 
 Mayer v. Schleichter (39 Wis. 646), 61. 
 
 V. Walter (64 Pa. St. 383), 56. 
 Mayers t. Kaiser (85 Wis. 883, 21 L. 
 
 R. A. 628), 191. 
 Mayhew v. Burns (108 Ind. 838), 33. 
 
 V. Herrick (7 C. B. 229), 182. 
 Maynard v. Maynard (49 Vt. 297), 193. 
 Mayor, etc. of Lyme Regis v. Henley 
 
 (1 Bing. N. C. 322), 34 
 Maysville St. R. Co. v. Marvin (59 
 
 Fed. Rep. 91), 94 
 Mead v. Bunn (32 N. Y. 275), 199. 
 
 V. Stratton (87 N. Y. 493), 92. 
 Meagher v. DriscoU (99 Mass. 281, 96 
 
 Am. Dec. 759), 88. 
 Meeks v. So. Pac.R. Co. (53 Cal. 602), 
 
 287. 
 Mehroflf v. MehroflE (26 Fed. Rep. 13), 
 
 81. 
 Meier v. Pa. R. Co. (64 Pa. St. 225), 281. 
 Meiners v. Frederick Miller Brewing 
 
 Co. (78 Wis. 364 10 L. R. A. 586),. 
 
 256. 
 
Iviii 
 
 TABLE OF CASES CITED. 
 
 Be/ere7ices are to pages. 
 
 Melvin v. Lamar Ins. Co. (80 ILL 446), 
 
 213. 
 i Memphis, etc. R. da v., Thomas (51 
 
 Miss. 637), 285. 
 Meneely v. Meneely (62 N. T. 427, 20 
 
 Am. Rep. 489), 137. 
 Mercer v. Corbin (117 Ind. 450, 3 L. 
 
 R. A. 321), 2, 49. 
 Merchants' Nat. Bank, Wachsmuth 
 
 V. (96 Mich. 426, 21 L. R. A. 278), 
 
 34, 69. 
 Meredith v. Reed (26 Ind. 334), 129. 
 Meriden, etc. Co. v. Parker (39 Conn. 
 
 450, 12 Am. Rep. 401), 137. 
 Merrick v. Wallace (19 111. 486), 149. 
 MeiTick Thread Co., Coates v. (149 
 
 U. S. 562), 136. 
 Merrifield v. Worcester (110 Mass. 
 
 216, 14 Am. Rep. 592), 244. 
 MerriU v. East. R. Co. (139 Mass. 252), 
 93. 
 
 V. Grinnell (30 N. T. 594), 270. 
 Merritt v. BrinkerhofE (17 Johns. 306), 
 241. 
 
 V. Claghorn (23 Vt. 177), 266. 
 Merryweather v. Nixan (8 T. R. 186, 
 
 2 Sm. K C. 542), 43. 
 Mershon v. Hobensack (22 N. J. 372), 
 
 267. 
 Metcalf T. Hess (14 la 129), 266. 
 Metropolitan Ins. Co., Grattan v. (80 
 
 N. Y. 281), 217. 
 Metropolitan R. Co., Larson v. (110 
 Mo. 234 16 L R. A. 330), 247. 
 
 Stanton v. (14 Allen, 4S5), 46. 
 
 Woodley v. (L. R. 2 Ex. D. 384), 
 236. 
 Meuer v. Chicago, M. & St. P. P. Co. 
 
 (S. Dak., 25 L. R. A. 81), 290. 
 Meyer, Brown Chemical Co. v. (139 
 
 U. S. 540), 136. 
 Michaels v. N. T. C. R. Co. (30 N. T. 
 
 564), 268. 
 Michels v. Stork (44 Mich. 2), 187. 
 Michigan Barge Co., Genessee, etc. 
 
 Bank v. (52 Mich. 164), 200. 
 Mich. Cent. R. Co., Bacon t. (66 Mich. 
 166), 73. 
 
 Bresnaban v. (49 Mich. 410), 279. 
 
 V. Coleman (28 Mich. 440), 245. 
 
 JMich. Cent. R. Co., Hickey v. (96 
 Mich. 498, 21 L. R. A. 729), 
 238. 
 Htinn V. (78 Mich. 513), 229. 
 Jones V. (59 Mich. 165), 246. 
 McKone v. (51 Mich. 601), 112. 
 Mich. South. R Co. t. McDonough 
 (21 Mich. 165), 268. 
 V. Shnrtz (7 Mich. 515), 268. 
 Michoud V. Girod (4 How. 503), 304 
 Middlesex, etc. R. Co., Feital v. (109 
 Mass. 398, 12 Am. Rep. 720), 
 45. 
 Vinton v. (11 AUen, 304), 371. 
 Midland Ins. Co. v. Smith (L. R. 6 
 
 Q. B. D. 561), 34. 
 Midland R. Co. Readhead v. (L. R. 3 
 
 Q. B. 412), 228. 
 MUes V. Wheeler (43 PL 123), 314 
 Millar v. AUan (10 R. L 49), 181. 
 Miller, Bait. & O. R. Co. v. (39 Md. 
 252), 270. 
 V. Burch (33 Tex. 308, 5 Am Rep. 
 
 242), 17. 
 V. Grice (3 Rich. 27, 44 Am. Dec. 
 
 271), 187. 
 V. Hammers (Iowa, 61 N. W. Rep. 
 
 1087), 93. 
 Lake Shore, etc. R. Co. v. (25 
 
 Mich. 274), 389. 
 V. Miller (91 N. Y. 320), 14 
 V. MiUer (9 Pa. St. 74), 341. 
 V. Miller (41 Md. 633), 119. 
 V. Parish (8 Pick. 384), 61. 
 Pennsylvania R. Co. v. (113 Pa. 
 
 St 34), 242. 
 People V. (24 Mich. 458, 9 Am. 
 
 Rep. 730), 199. 
 V. People (60 Miss. 819), 267. 
 V. St. Louis, etc. R Ca (90 Ma 
 
 389), 245. 
 Singer Mfg. Co. v. (21 L R A. 
 
 239), 267. 
 V. ThompsoJi (60 Me. 332), 181. 
 V. Waddingham (91 Cal. 377, 11 
 L. R A. 610), 170. 
 Millican v. MiUican (24 Tex. 426), 309. 
 Milligan, Exparte (4 WaU. 2), 110, 293. 
 MUls V. N. Y. etc. R Ca (2 Rob. 326, 
 41 N. Y. 619). 254 
 
TABLE OF OASES CITED. 
 
 lix 
 
 References are to pages. 
 
 Milwaukee, eta R. Co., Keflfe v. (21 
 
 Minn. 207), 112. 
 Mims V. Mims (35 Ala. 23), 149. 
 Mining Co., Carson v. (5 Mich. 288), 
 
 275. 
 Minnehan, State v. (83 Me. 310), 108. 
 Minor V. Happersett (21 WalL 162), 
 12. 
 HL Cent. R. Co. v. (69 Miss. 710, 
 16 L. E. A. 627), 271. 
 Minshall v. Lloyd (3 M. & W. 450), 
 
 172. 
 Minto V. Delaney (7 Oreg. 337), 118. 
 Mississippi Cent. R. Co. v. Carath (51 
 Miss. 77), 243. 
 T. Mason (51 Miss. 234), 24a 
 Missouri, K. & T. R. Ca, Fritz v. 
 (Tex. Civ. App., 30 S. W. 
 Rep. 85), 230. 
 V. Hamilton (Tex. Civ. App., 30 
 S. W. Rep. 679), 225. 
 Missouri Pacific R. Co., Becke v. (102 
 Mo. 544i 9 L. R A. 157), 277, 
 289. 
 CarroU v. (88 Mo. 339), 290. 
 Dougherty v. (97 Mo. 647), 269. 
 Hickman v. (91 Mo. 433), 271. 
 V. Ivey (71 Tex. 409, 1 L. R A. 
 
 500), 289. 
 McFadden v. (92 Mo. 343), 290. 
 Parsons v. (94 Mo. 286), 93. 
 V. Richmond (73 Tex. 568, 4 L. 
 
 R A. 280), 35, 71. 
 Thorpe v. (89 Mo. 650), 384. 
 Mitchell V. Bradstreet Co. (116 Mo. 
 326, 20 L. R A. 138), 72. 
 V. Harmony (13 How. 115), 110. 
 Richmond & D. R Co. v. (93 Ga. 
 
 77), 230. 
 
 V. Sharon (51 Fed. Rep. .434), 61. 
 
 V. So. Pa& R. Co. (87 CaL 63, 11 
 
 L. R A. 130), 380. 
 
 Mizner v. Kussell (39 Mich. 239), 193. 
 
 MobUe, etc. R Co. v. Gray (63 Miss. 
 
 383), 245. 
 Moellering v. Evans (121 Ind. 195, 6 
 
 L. R. A. 449), 247. 
 Moflett, State v. (1 Greene, 247), 16. 
 Mohry v. HofiEman (86 Pa. St. 358), 84 
 Moley v. Barreger (77 Wis. 43), 65. 
 
 MoUie Gibson C. M. & M. Co. v. 
 
 Sharp (Colo., 38 Pao. Rep. .850), 
 
 98. 
 MoneU v. Colden (13 Johns. 395, 7 
 
 Am. Dec. 390), 199. 
 Monongahela v. Fisher (111 Pa. St. 9), 
 
 386. 
 Monroe v. Collins (17 Ohio St. 665), 
 
 161. 
 Monsbn v. Tussauds (C. A., 1 Q. R 
 
 671), 65. 
 Monson, etc. Co. v. Fuller (15 Pick. 
 
 554), 333. 
 Monument Nat. Bank v. Globe 
 
 Works (101 Mass. 57, 3 Am Rep. 
 
 322), 34. 
 Moody V. Baker (5 Cow. 351), 64 
 Mooner v. Miller (102 Mass. 317), 195. 
 Moore v. Francis (121 N. T. 199, 8 L. 
 R. A. 314), 63, 65, 66. 
 
 v. Gadsden (93 N. Y. 13), 376. 
 
 V. Goedel (7 Bosw. 591, 34 N. Y. 
 527), 284 
 
 State V. (31 Conn. 479), 60. 
 
 V. Thorp (16 R L 655, 7 L. R. A. 
 . 731), 173. 
 
 V. Webb (1 C. B., N. S., 673^ 351. 
 
 V. White (45 Mo. 306), 136. 
 Moore, Ex parte (63 N. C. 397), 167. 
 Moran v. Dawes (4 Cow. 413), 84 
 
 V. Smell (5 W. Va. 36), 293. 
 Moranda v. Dunkin (4 T. R 119), 155. 
 Morasse v. Brochu (151 Mass. 567, 8 
 
 L. R. A. 524), 63. 
 Morey v. Fitzgerald (56 Vt. 487), 115. 
 
 V. Morning Journal Asso. (123 
 
 N. Y. 207, 9 L. R. A. 621), 65. 
 
 Morgan, Atchison, T. & S. F. R Ca 
 
 V. (42 Kan. 33, 4 L. R A. 
 
 284), 170. 
 
 V. Duffy (Tenn., 30 S. W. Rep. 
 735), 55. 
 
 V. Halberstadt (60 Fed. Rep. 592), 
 61, 65, 67. 
 
 V. Kendall (124 Ind. 454, 9 L. R 
 A. 445), 4 
 
 V. Perry (51 N. H. 559), 14 
 
 V. Railroad Co. (L. R 1 Q. B. 
 149), 233. 
 
 V. SHddy (63 N. Y. 319), 200. 
 
Ix 
 
 TABIE OF CASES CITED. 
 
 Morgan v. So. Pac. Ca (95 CaL 510, 
 
 17 Lu R. A. 71), 97. 
 Morgan's L & T, R & S. Co., Mo- 
 Gowen v. (41 La. Ann. 732, 5 L. 
 E. A. 817), 271. 
 Morning Journal Assa, Morey v. (123 
 
 N. T. 207, 9 L. E. A. 621), 65. 
 MorriU v. Morrill (20 Ore. 96, 11 L. R. 
 A. 155), 12. 
 State V. (16 Ark. 384), 166. 
 Morris v. Chicago (65 Iowa, 727, 54 
 
 Am. Eep. 39), 94 
 Morris, etc. E. Co. t. Ayres (29 N. J. 
 
 393), 269. 
 Morrissey v. Providence Telegram 
 
 Co. (E. L, 32 AtL Eep. 19), 65. 
 Morrison v. McDonald (21 Me. 550), 
 
 166. 
 Morrow V. Wood (35 Wis. 59, 17 Am. 
 
 Eep. 471), 105. 
 Morton v. Fenn (3 Doug. 211), 207. 
 V. New York (140 N. Y. 207, 23 L. 
 R A. 241), 257. 
 Moser v. White (26 Mich.' 59), 164. 
 Moses V. Boston, etc. E. Ca (32 N. H. 
 523), 269. 
 V. Julian (45 N. H. 52, 84 Am. 
 
 Dea 114), 164 
 V. So. Pac. E. Co. (18 Oreg. 385, 8 
 L. E. A. 135), 277. 
 Mosher v. Post (89 Wis. 602), 195. 
 Mosier v. Caldwell (7 Nev. 363), 240. 
 Moss V. Ciunmings (44 Mich. 359), 
 146. 
 V. Pac. E. Co. (49 Mo. 167, 8 Am. 
 Eep. 136), 328. 
 MosseUer v. Deaver (106 N. C. 494i 8 
 
 L. R A. 537), 119. 
 Mostyn v. Fabrigas (Cowp. 161, 1 Sm. 
 
 L. C. 1037), 160, 188. 
 Motes V. Bates (80 Ala. 383), 54 
 Mott V. Mott (68 N. Y. 346). 118. 
 JMoulton V. Libbey (37 Me. 472), 122. 
 V. Newburyport Water Co. (137 
 
 Mass. 163), 240. 
 V. Norton (5 Barb. 386), 154 
 V. Scarborough (71 Me. 267), 359. 
 Mowry v. Whipple (8 R L 360), 54 
 Moyer v. Hoyt (63 Conn. 542, 19 L. R 
 A. 611), 169. 
 
 Beferencet are to pages. 
 
 Mudsill Min. Co. v. Watrous (61 Fed. 
 
 Eep. 163), 196. 
 Muir V. Jones (33 Oreg. 333, 19 Lu R 
 
 A. 441), 171. 
 Muldoon V. Seattle City R Co. (7 
 
 Wash. 538, 33 L. R A. 794), 390. 
 Mulherrin v. DeL etc. R Co. (81 Pa. 
 
 St. 366), 385. 
 Mullen T. Ensley (8 Humph. 438), 265. 
 
 V. St John (57 N. Y. 567, 15 Am. 
 Eep. 530), 253. 
 
 World Pub. Co. v. (Neb., 61 N. 
 W. Eep. 108), 65, 67. 
 Mullett V. Mason (L. R 1 C. P. 559), 
 
 254 
 Mulligan v. Curtis (100 Mass. 512), 
 
 388. 
 Mullin V. California Horse Shoe Ca 
 
 (CaL, 38 Paa Eep. 535), 228. 
 Mullins, Natchez, eta Co. v. (67 Miss. 
 
 672), 95. 
 Mulvey v. Carpenter (78 IlL 580), 187. 
 Mumford v. Whitney (15 Wend. 280, 
 
 30 Am. Dea 60), 113. 
 Mundle v. HiU Mfg. Ca (86 Ma 400), 
 
 225. 
 Munford, West IT. Tel. Co. v. (87 
 
 Tenn. 190, 3 L. R A. 601), 272. 
 Munger, Tonawanda R Co. v. (5 
 
 Denio, 355, 49 Am. Dea 239), 136. 
 Munro v. Paa Coast D. & R Ca (84 
 CaL 515), 95, 96. 
 
 V. Tonsey (129 N. Y. 38, 619, 14 
 L. E. A. 345), 136. 
 Munroe v. Gates (48 Ma 463), 343. 
 Munster v. Lamb (L. R 11 Q. B. D. 
 
 588), 69. 
 Murphey v. KeUey (68 Ma 521), 337. 
 
 V. St Louis, eta Ca (71 Mo. 202), 
 230. 
 
 V. Sioux C. R Ca (55 Iowa, 473), 
 175. 
 
 V. WUson (44 Mo. 313, 100 Am. 
 Dea 290), 39. 
 Murray v. Beckwith (48 HL 391), 196. 
 
 Cairo, etc. R Co. v. (83 IlL 76), 
 377. 
 
 V. Lovejoy (3 Cliff. 191), 38. 
 Muskegon Booming Ca v. Evart 
 
 Booming Ca (34 Mich. 462), 257. 
 
TABLE or CASES CITED. 
 
 Ixi 
 
 JSe/erences are to pages. 
 
 Mut Ins. Co., Dungan v. (38 Md. 
 
 242), 177. 
 Muzzey v. Davis (34 Me. 361), 173. 
 Myer v. Hobbs (57 Ala. 175), 247. 
 Myers v. Malcolm (6 HiU, 292), 253. 
 
 V. State (46 Ohio St 473, 15 Am. 
 St Eep. 638), 167. 
 
 Nairn V. Ewalt (51 Kan. 855), 192. 
 Nash V. Jewett (61 Vt 501, 4 L. E. A. 
 561), 31. 
 
 V. Muldoon (16 Nev. 404), 153. 
 Nashua Iron & Steel Cg. v. Wor- 
 cester & N R Ca (62 N. H. 159), 
 
 43. 
 Nashville, etc R Ca v. CarroU (6 
 
 Heisk. 347), 223. 
 Nason v. West (78 Me. 253), 225. 
 Natchez, eta Co. v. MuUins (67 Miss. 
 
 672), 95. 
 Nat City & O. R Co., Elledge v. (100 
 
 Cal. 282), 225, 228. 
 Nat Ice Co., Gouveneur v.<134 N. Y. 
 
 355, 18 L. R A. 695), lia 
 Nat line, etc. Ca v. Smart (107 Pa. 
 
 St 492), 269. 
 Naylor v. Chicago, eta R Co. (53 
 
 Wis. 661), 222. 
 Neal V. Hanson (60 Me. 84), 179. 
 
 v. Joyner (89 N. C. 287), 52. 
 Neeb v. Hope (111 Pa. St 145), 73. 
 Neeley, State v. (74 N. C. 425, 31 Am. 
 
 Rep. 496), 47. 
 Negley v. Farrow, 60 Md. 158, 45 Am. 
 Eep. 715), 73. 
 
 V. Lindsay (67 Pa. St 217, ^Am. 
 Eep. 427X 204 
 Negus V. Becker (143 N. T. 303, 25 L. 
 
 R A. 667), 142. 
 Nehr V. State (35 Neb. 638, 17 L. R A. 
 
 771), 130. 
 NeUis V. Clark (4 Hill, 424), 204. 
 Nelson v. Borchenius (52 111 236), 63. 
 
 V. Brown (44 Iowa, 455), 265. 
 
 V. Canisteo (100 N. T. 89), 260. 
 
 V. Cook (17 m. 443), 44. 
 
 V. G., H. & S. A. R Ca (78 Tex. 
 321, 11 L. R A. 391), 96. 
 
 Nelson v. Harrington (72 Wis. 591, 1 
 L. R A. 719), 274 
 
 v. Iverson (17 Ala. 216), 183. 
 Netherland-Am. St Nav. Co. v. Hol- 
 lander (59 Fed. Eep. 417), 82. 
 Nevin v. Pullman, eta Co. (106 111. 
 
 332). 370. 
 New Albany, eta E. R Co. v. Fields 
 (10 Ind. 187), 213. 
 
 Williams v. (5 Ind. Ill), 276. 
 New Bedford Cordage Co., Coombs 
 
 V. (102 Mass. 572, 3 Am. Eep. 506), 
 
 326. 
 New Bedford R Ca, Ladd v. (119 
 
 Mass. 413, 30 Am. Eep. 331), 238, 
 
 330. 
 New Brunswick. E. Co. v. Conybeare 
 
 (9 H. L. Cas. 711), 195. 
 New England Screw Co., Hodges v. 
 
 (1 R' I. 312, 53 Am. Dea 634), 311. 
 New Jersey R Co., Bennett v. (86 N. 
 
 J. 325), 289. 
 New Jersey Steamboat Co., Caldwell 
 
 V. (47 N. Y. 283), 270. 
 New Jersey Stone Co., Vreeland v. 
 
 (29 N. J. Eq. 188), 190. 
 New London, etc. E. Co., Crocker v. 
 
 (24 Conn. 249), 220. 
 New Orleans, etc. Co., Crowell v. (61 
 
 Miss. 631), 118. 
 New Orleans, C. & L. R Co., Lafitte 
 
 V. (43 La. Ann. l34, 12 L. R A. 
 
 837), 220. 
 New Quay Co., Sheridan v. (4 C. B., 
 
 N. S., 619), 183. 
 New Salem v. Eagle MiUs Co. (183 
 
 Mass. 8), 256. 
 New York, eta E. Ca, Clark v. (160 
 Mass. 39), 94 
 
 Coppins V. (122 N. Y. 557), 228. 
 
 Gallagher v. (5 L. R A. 737), 277. 
 
 Garwood v. (83 N. Y. 400), 242. 
 
 Isbell V. (27 Conn. 393), 377. 
 
 King V. (66 N. Y. 181, 23 Am. 
 Eep. 37), 324 
 
 Laning v. (49 N. Y. 531, 10 Am. 
 Eep. 417), 322, 228. 
 
 Lockwood V. (84 U. S. 357), 290. 
 
 Mahon v. (34 N. Y. 658), 359. 
 
 Matteson v. (35 N. Y. 487), 79. 
 
Ixii 
 
 \ 
 
 TABLE OF CASES CITED. 
 
 Beferenees are to pages. 
 
 New York, etc. R. Co., Michaels v. 
 (30 N. Y. 564), 268. 
 
 MiUs V. (2 Rob. 326, 41 N. Y. 619), 
 254. 
 
 Ponoher v. (49 N. Y. 263), 270. 
 
 Ramsdell v. (151 Mass. 245), 94 
 
 Rich V. (87 N. Y. 382), 2. 
 
 Richardson v. (45 N. Y. 846), 277. 
 
 Ryan v. (35 N. Y. 210), 22. 
 
 Sauter v. (66 N. Y. 50, 23 Am. 
 Rep. 18), 96. 
 
 V. Schuyler (34 N. Y. 30), 35. 
 
 Squire v. (98 Mass. 239), 268. 
 
 Wendell v. (91 N. Y. 420), 285. 
 
 Wilson T. (97 N. Y. 87), 290. 
 New York, etc. TeL Co. y. Dryburg 
 
 (35 Pa. St. 298), 290. ^ 
 New York F. D. D. Co., Bedlow v. 
 
 (112 N. Y. 263, 2 L. R. A. 629), 172. 
 New York Recorder, Turton v. (N. 
 
 Y., 88 N. E. Rep. 1009), 67, 75. 
 Newark, etc R. Co., Cuff v. (35 N. J. 
 
 17, 10 Am. Rep. 205), 224 
 Newbold V. Bradstreet (57 Md. 38), 65. 
 Newburg Orrel Coal Co., Graham, v. 
 
 (38 W. Va. 273), 229. 
 Newburyport Water Co., Moulton v. 
 
 (137 Mass. 163), 240. 
 Newman v. Alvord (51 N. Y. 189, 10 
 Am. Rep. 588), 137. 
 
 V. Earl of Hardwicke (8 Ad. & E. 
 123), 163. 
 
 V. Phillipsburg, etc. R. Co. (52 
 N. J. L. 446, 8 L. R. A. 842), 
 288. 
 Newman, Re (75 CaL 213, 7 Am. St. 
 
 Rep. 146), 14 
 Newsom v. Thornton (6 East, 17), 269. 
 News Pub. Co., Allen v. (81 Wis. 120), 
 
 65. 
 Nichols V. Boston (98 Mass. 39), 255. 
 
 V. McLean (101 N. Y. 526, 54 Am. 
 Rep. 730), 109. 
 
 V. Marsland (L. R. 10 Exch. 255, 
 14 Moak, 538), 235. 
 
 V. Pinner (18 N. J. 295), 192, 193. 
 Nickerson v. Brackett (10 Mass. 312), 
 
 122. 
 Nickhn v. Williams (10 Exch. 259), 
 
 141. 
 
 Nisbet V. Gamer (75 Iowa, 314 1 L. 
 
 R. A. 152), 289. 
 Nissen v. Cramer (104 N. C. 574 & 
 
 L. R. A. 780), 68. 
 Nitsche, Louisville, etc. R. Co. v. 
 
 (126 Ind. 229, 9 L. R. A. 750), 244 
 Nix V. Caldwell (81 Ky. 298), 71. 
 Noble V. Milliken (74 Me. 225, 77 Me. 
 359), 270. 
 
 State V. (118 Ind. 350, 10 Am. St. 
 RepL 143), 165. 
 Noeninger v. Vogt (88 Mo. 589), 63. 
 Nolte V. Richelm (96 IlL 425), 197. 
 Norcross v. Griffiths (65 Wis. 599), 117. 
 
 V. Norcross (53 Me. 163), 266. 
 
 V. Thorns (51 Me. 503), 250, 251. 
 Norfolk & Sp. R. Co. Smith v. (114 
 
 N. C. 728, 25 L. R. A. 287), 285, 286. 
 
 Norfolk & West R. Co. v. Hoover 
 
 (Md., 25 L. R. A. 710), 228. 
 
 V. Nuckol's Adm'r (Va., 21 S. E. 
 Rep. 342), 228, 229. 
 North Bloomfield Co. etc. Co., Wood- 
 
 ruflE V. (18 Fed. Rep. 7531, 256. 
 North Carolina A. Co., Smith v. (64 
 
 N. C. 235), 289. 
 North Cent. R Co., McMahon y. (39 
 
 Md. 438), 284 
 North Chicago St. R. Co. v. Eldridge 
 
 (151111.542), 286. 
 North Penn. eta Co. v. Kirk (90 Pa. 
 
 St. 15), 97. 
 North Star, etc. Co., Truntle v. (Minn., 
 
 58 N. W. Rep. 832), 235. 
 Northeastern Exp. Co. v. Me. Cent, R. 
 
 Co. (57 Me. 188), 268. 
 Northeastern News Asso., So. Het- 
 
 ton Coal Co. v. (1 Q. B. 133), 63. 
 Northeastern R. Co., Elliott v. (10 
 a L. Cas. 333), 347. 
 
 Waite V. (EL,' Bl. & EL 729), 287. 
 Northern P. Coal Co. v. Richmond 
 
 (58 Fed. Rep. 756), 237. 
 Northern Pao. R Co. v. Mahoney (57 
 Pa. St. 187), 288. 
 
 V. Rehman (49 Pa. St. 101), 276. 
 
 V. Smith (59 Fed. Rep. 993, 8 C. 
 C. A. 663), 223. 
 Northern Pac. T. Co., Sohulte v. (50 
 
 CaL 593), 358. 
 
TABLE OF OASES CITED. 
 
 hdri 
 
 References are to pages. 
 
 Northern R. Co. v. Kennedy (4 Exch. 
 
 417), 375. 
 Northwestern, etc. Co., Eothenberger 
 
 V. (Minn., 59 N. W. Rep. 531), 339. 
 Northwestern Fuel Co. v. Danielson 
 
 (57 Fed. Rep. 915), 337, 339. 
 Norton v. Nye (56 Me. 211), 38, 153. 
 
 V. Sewall (106 Mass. 143, 8 Am. 
 Rep. 298), 346. 
 
 V. Warner (9 Conn. 173), 78. 
 
 Norwich, etc. E. Co., Daley v. (36 
 
 Conn. 591), 287. 
 
 Flint V. (34 Conn. 554), 271. 
 Noyes v. Smith (28 Vt. 59), 338. 
 Nuckol's Adm'r, Norfolk & W. R. Co. 
 
 y. (Va., 31 S. E. Rep. 843), 223, 239. 
 
 o. 
 
 OakWd Tp., Winner v. (158 Pa. St. 
 
 405), 79. 
 Oakley v. Farrington (1 Johns. Cas. 
 
 139), 64. 
 Odiome v. Bacon (6 Gush. 185), 64. 
 
 V. Lyford (9 N. C. 503), 131. 
 0*Donaghue v. McGovern (33 Wend. 
 
 36), 70. 
 O'DonneH, Bait. & O. R Co., v. (49 
 Ohio St. 489, 31 L. R. A. 
 117), 293. 
 
 V. Maine C. R Co. (Me., 35 L. R. 
 A. 658), 98. 
 Ogbom V. Francis (15 Vroom, 441, 
 
 48 Am. Rep. 894), 84. 
 Ogburii V. Connon (46 Cal. 846, 13 
 
 Am. Rep. 313). 337. 
 Ogden V. Riley (2 Green's L. 186, 25 
 
 Am. Dec. 513), 61. ^ 
 
 Ogg V. Lansing (35 Iowa, 495, 14 Am. 
 
 Rep. 499), 148. 
 Ogle V. Atkinson (5 Taunt. 759), 179. 
 Ohio, etc. R. Co. v. Clutter (82 IlL 
 123), 346. 
 
 V. Collam (73 Ind. 361, 38 Am. 
 Rep. 134), 328. 
 
 Gregory v. (37 W. Va. 606), 220. 
 
 V. Selby (47 Ind. 471), 390. 
 Old Colony R. Co., Sweeney v. (10 
 
 Allen, 368), 353. 
 Olson V. Neal (63 Iowa, 314), 55. 
 
 Omrod v. Hurth (14 M. & W. 651), 
 
 203. 
 Onderdonk v. Ranlett (3 HiU, 323), 
 
 166. 
 O'Neil, State v. (51 Kan. 537, 34 L. R.. 
 
 A. 555), 31. 
 Orange, etc. R. Co. v. Ward (47 N. J, 
 
 L. 560). 284. 
 Oregon, etc. R. Co., Weiss v. (13 Ore, 
 
 196), 241. 
 Oregon Iron Co. v. Trullenger (S- 
 
 Ore. 1), 243. 
 O'Reilly v. Glavey (33 L. R. Ir. 316, 
 
 Ex. D.), 84. 
 Oriental Print Works, Mann v. (It 
 
 R. L 153), 330. 
 Ormsby v. Douglass (37 N. Y. 477), 
 
 73. 
 O'Rourke t. Cleveland (49 N. J. Eq, 
 577, 31 Am. St. Rep. 719), 
 168. 
 
 V. Sioux Falls (4 S. D. 47. 19 L.- 
 E. A. 789), 259. 
 Orr V. Skofield (56 Me. 483), 63. 
 Ortmeyer v. Johnson (45 111. 469), 334^ 
 Osgood V. King (43 Iowa, 478), 313. 
 Otis V. Janesville (47 Wis. 433), 389, 
 O'TooIe V. Pittsburgh & L. E. R. Co- 
 
 (158 Pa. St. 99, S3 L. R. A. 606),;. 
 
 283. 
 Ottumwa V. Parks (43 Iowa, 119), 261. 
 Over V. Schiffling (102 Ind. 191), 71. 
 Overby v. McGee (15 Ark. 459, 63 
 
 Am. Dec. 49), 175. 
 Owen V. Henman (1 Watts & S. 548), 
 
 351. 
 Owens, Denver Tramway Co. v- 
 (Colo., 36 Pac. Rep. 818), 
 316. 
 
 V. Richmond, etc. R. Co. (88 N. C, 
 503), 285. 
 
 V. Weedman (83 111. 409), 177, 179, 
 Oxley V. Watts (1 T. E. 12), 175. 
 
 Pac. Coast D. & R. Co., Munro v. (84- 
 
 Cal. 515), 95, 96. 
 Pac. Imp. Co., Fay v. (93 Cal. 253, 1» 
 
 L. E. A. 188), 366. 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 References are to pages. 
 
 Pac. Post. Tel. Co. v. Fleischner (66 
 
 Fed. Eep. 899), 291. 
 ^ac. R. Co., Moss v. (49 Mo. 167, 8 Am. 
 Rep. 126), 228. 
 EandaU v. (65 Mo. 335), 257. 
 S^ckard v. Ryder (144 Mass. 440, 59 
 
 Am. Rep. 101), 139. 
 Paddock v. Fletcher (43 Vt. 389), 300. 
 V. Somes (102 Mo. 226, 10 L. R. A. 
 254), 232, 239. 
 Page V. Gushing (38 Me. 523), 55. 
 
 Y. Parker (43 N. H. 363, 80 Am. 
 
 Deo. 173), 36. 
 V. Smmpter (53 Wis. 653), 288. 
 V. WeUs (37 Mich. 415), 273. 
 Palmer v. Adams (Ind., 36 N. E. Rep. 
 695), 66. 
 V. Bell (85 Me. 353), 301. 
 V. 0. H. Cemetery (132 N. T. 429), 
 
 213. 
 -v. Carroll (34 N. H. 314), 163. 
 •T. Concord (48 N. H. 211, 97 Am. 
 
 Dec. 605), 78. 
 V. Harris (60 Pa. St. 156, 100 Am. 
 
 Dec 557), 138. 
 V. Pa. Co. (HI N. Y. 458, 3 L. R. 
 
 A. 352), 269. 
 V. Waddell (22 Kan. 353), 238. 
 Panama R. Co., Whitf ord v. (33 N. Y. 
 
 465), 96. 
 Pangburn v. Ramsay (11 Johns. 141), 
 
 146. 
 Park V.Detroit Free Press Co. (73 
 Mich. 560, 1 L. R A. 599), 73, 73, 74. 
 Parke v. Seattle (5 Wash. 1, 20 L. R. 
 
 A. 68), 247, , 
 Parker v. Huntington (2 Gray, 124), 
 37. 
 V. Lett (Ld. Raym. 658), 109. 
 V. Meek (3 Sneed, 29), 85. 
 Meriden, etc. Co. v. (39 Conn. 450, 
 
 12 Am. Rep. 401), 137. 
 V. Mise (27 Ala. 480), 176. 
 V. WaUis (60 Md. 15, 45 Am. Rep. 
 703), 119. 
 S»arkersburg R. Co., Tome v. (39 Md. 
 
 36, 17 Am Rep. 5401, 85. 
 Parsons v. Loyd (3 Wils. 341), 163, 
 181. 
 V. Mo. Pac. R. Co. (94 Mo. 286), 93. 
 
 Partridge v. First Independent 
 Church (39 Md. 631), 89. 
 
 V. Gilbert (15 N. Y. 601, 69 Am. 
 Dec. 632), 148. 
 
 V. Scott (3 M. & W. 330), 347. 
 Pasley v. Freeman (3 T. R. 51, 7 Sm. 
 
 L. C. 51), 193, 195, 303. 
 Passenger R. Co. v. Young (21 Ohio 
 
 St. 518, 8 Am. Rep. 78), 330. 
 Patten v. People (18 Mich. 814), 49. 
 
 V. Wiggin (51 Me. 594 373. 
 Patterson v. Detroit, etc. R Co. (56 
 Mich. 172), 258. 
 
 V. Pittsburgh, etc. R. Co. (76 Pa. 
 St. 389, 18 Am. Rep. 412), 
 227, 329. 
 
 T. Wallace (1 Macq. H. L 748), 
 329. 
 Paul V. Frazier (3 Mass. 71, 3 Am. 
 
 Dec. 95), 207. 
 Pauley v. Steam-Gauge & Lantern 
 
 Co. (131 N. Y. 90, 15 L. R. A. 194), 
 
 276, 378. 
 Payne v. EUiot (54 CaL 339), 179. 
 
 Richmond & D. R Co. v. (86 Va. 
 481, 6 L. R A. 849), 390. 
 Peake v. Oldham (1 Cowp. 275), 67. 
 Pearl, People v. (76 Mich. 307, 4 L. 
 
 R. A. 709), 49. 
 PearsoU -r. Chapin (44 Pa. St. 9), 204. 
 Pearson v. Board of Supervisors 
 
 (Va., 21 S. E. Rep. 483), 13. 
 Pease, People v. (37 N. Y. 45), 109. 
 Peck V. Cary (37 N. Y. 9, 84 Am. Dec. 
 320), 210. 
 
 V. Chouteau (91 Mo. 138, 60 Am. 
 Rep. 236), 38. 
 Peek V. Gumey (L. R. 13 Eq. Cas. 79), 
 
 200. 
 Pembroke Iron Co., Lee v. (57 Me. 
 
 481), 357. 
 Pembroke Iron Works, Inhab. of 
 
 Charlotte v. (82 Me. 391, 8 L. R 
 
 A. 828), 356. 
 Pendergast v. Adams Exp. Co. (101 
 
 Mass. 130), 269. 
 Peninsular Land, etc. Co., Jackson- 
 ville, etc. Co. V. (27 Fla. 157, 17 
 
 L. R. A.33), 346, 383. 
 Pennock v. Dialogue (3 Pet. 1), 133. 
 
TABLE OF OASES CITED. 
 
 IXT 
 
 Beferences are to pages. 
 
 Tennsylvania Coal Co. v. Sanderson 
 
 (LIS Pa. St. 126), 344 
 Pennsylvania E. Co. v. Butler (57 
 
 Pa. St. 335), 98, 290. 
 Dean v. (129 Pa. St. 514 6 L. E. 
 
 A. 143), 289. 
 GilUs V. (50 Pa. St. 139), 252. 
 V. Goodenougt (N. J., 23 L. R. 
 
 A. 460), 80. 
 Kay V. (65 Pa. St. 269, 3 Am. Eep. 
 
 628), 112, 287. 
 V. Kerr (S3 Pa. St. 353), 33. 
 Meier v. (64 Pa. St. 335), 281. 
 V. MiUer (113 Pa. St. 34), 343. ' 
 Palmer v. (Ill N. Y. 458, 3 L. K 
 
 A. 253), 369. 
 Keed v. (44 N. J. L. 380), 344 
 Weiss V. (79 Pa. St. 387), 384. 
 Penrose v. Curren (3 Eawle, 351, 34 
 
 Am. Dec. 356), 30. 
 Penruddock's Case (5 Eep. 101), 17. 
 People V. Angeles (61 Cal. 188), 49. 
 Chicago, eta E. Co. t. (67 lU. 
 
 11.16Am. Eep. 599), 368. 
 V. Chioott (16 Mich. 383, 97 Am. 
 
 Dec. 141), 109. 
 V. Detroit White Lead Works 
 
 (83 Mich. 471, 9 L. E. A. 
 
 722), 251. 
 V. Ewer (141 N. Y. 129), 13, 100. ' 
 V. Gordon (5 Cal. 235), 162. 
 V. Haley X48 Mich. 495), 53. 
 V. Hecht (Cal., 38 Pac. Eep. 941), 
 
 109. 
 V. King (110 N. Y. 418, 1 L. E. A, 
 
 293). 104 
 V. LiUey (43 Mich. 531), 47. 
 V. Mnier (24 Mich. 458, 9 Am. 
 
 Eep. 131), 109. 
 Patten v. (18 Mich. 814), 49. 
 V. Pearl (76 Mich. 207, 4 L. E. A. 
 
 709), 49. 
 V. Pease (27 N. Y. 45), 109. 
 Eaflferty v. (69 ni. Ill), 53. 
 V. Eaher (93 Mich. 165, 31 Am. St. 
 
 Eep. 575), 49. 
 V. Sergeant (8 Cow. 139), 349. 
 V. Smith (30 Johns. 63), 53. 
 V. Walsen (Colo., 28 Pao. Eep. 
 1119), 4 i 
 
 People V. Wilson (64 111. 195, 16 Am. 
 Eep. 538), 166, 167. 
 
 Yates V. (6 Johns. 337), 166. 
 Pepper v. West. U. Tel. Co. (87 Tenn, 
 
 554 4 L. E. A. 660), 290. 
 Perkins, Haney Mfg. Co. v. (78 Mich. 
 1), 63. 
 
 V. Mitchell (31 Barb. 461), 70. 
 
 V. Eice (Lit. SeL Cas. 318), 196, 
 303. 
 Perley v. East E. Co. (98 Mass. 414), 
 
 245. 
 Perrett v. Times (25 La. Ann. 170), 
 
 59. 
 Perry t. John (79 Pa. St. 412), 360. 
 
 V. Phipps (10 Ired. 359), 130. 
 Petee Mach. Works, Foley v. (149 
 
 Mass. 394 4 L. E. A. 51), 325. 
 Peters v. Fergus Falls (35 Minn. 549), 
 260. 
 
 V. Peters (42 Iowa, 182), 81. 
 Peterson v. Knoble (35 Wis. 80), 93. 
 Pettigrew v. Evansville (35 Wis. 223), 
 
 239. 
 Pfau T. Eeynolds (53 lU. 313), 261. 
 Phelin v. Kenderdine (20 Pa. St, 
 
 354), 85. 
 Phelps V. Cousins (29 Ohio St. 135), 
 
 127. 
 Philadelphia, etc. R Co., Audenried 
 V. (88 Pa. St. 370), 268. 
 
 V. Derby (14 How., 468), 221. 
 
 Ffahkfort, etc. Co. v. (54 Pa. St. 
 345), 245. 
 
 V. Quigley (21 How. 202), 35, 59, 
 
 V. Stinger (78 Pa. St. 219), 36. 
 
 Thomas v. (148 Pa. St. 180, 15 L. 
 E. A. 416), 381. 
 Philadelphia Exch. Co., Gowen v. (p 
 
 W. & S. 141, 40 Am. Deo. 489), 
 
 , 111. 
 
 Philbrick v. Pittsiion (63 Me. 477), 360. 
 
 Philips V. Squire (Peake, N. P. 82), 79. 
 
 PhiUips V. Eyre (L. E 4 Q. B. 325, 
 
 L. E. 6 Q. B. 1), 188. 
 
 V. Hoefer (1 Pa. St. 62, 44 Am. 
 Dec. Ill), 63. 
 
 V. Ehodes (7 Met. 322), 139. 
 
 V. Trull (11 Johns. 486), 53. 
 
 V. Waterhouse (69 Iowa, 199), 236. 
 
Ixvi 
 
 TABLE OF OASES CITED. 
 
 Beferenaes are to pages. 
 
 Phillips Fuel Co., Fosbfirg v. (Iowa, 
 
 61 N. W. Eep. 400), 235. 
 PhiUipsbuTg, etc. R. Cq., Newman v. 
 
 (53 N. J. L. 446, 8 L. R A. 843), 
 
 388. 
 , Philo V. m. Cent. R. Co. (33 Iowa, 47), 
 
 Phipps V. Johnson (99 Mass. 26), 141. 
 Phoenix v. Clark (6 N. J. Eq. 447), 135. 
 Pickett V. Wallace (57 Cal. 555), 166. 
 Pierce v. Dart (7 Cow. 609), 16. 
 
 V. Swan, etc. Prop'rs (10 R L 
 327, 14 Am. Rep. 667), 88. 
 
 V. Whitcomb (48 Vt. 127, 31 Am. 
 Rep. 130), 253. 
 Pierson v. Armstrong (1 Iowa, .294), 
 111. 
 
 V. Post (3 Caines, 175), 173. 
 
 V. Thompson (1 Edw. Ch. 313), 43. 
 Piggott V. East Counties R Co. .(3 C. 
 
 B. 339), 380. 
 Pike V. Fay (101 Mass, 134), 195. 
 Pillsbury v. Moore (44 Me. 164), 355. 
 Pingree y. Leyland (13? Mass. 398), 
 
 330. 
 Pinkerton v. Woodward (33 CaL 557), 
 
 265. 
 Pioneer Press Co., Thompson v. ^S? 
 
 Minn. 285), 66. 
 Piquet V. Allison (13 Mich. 328, 86 
 
 Am. Deo. 54), 183. 
 Pitt V. Petway (12 Ired. 69), 183. 
 Pitts V. Lancaster Mills (13 Met. 156), 
 
 343. 
 Pittsburgh, etc. R. Co. v. Devinney 
 (17 Ohio St. 197), 223. 
 
 Harriman v. (45 Ohio St. 11), 221, 
 252. 
 
 T. McCurdy (114 Pa. St. 554), 67. 
 
 O'TooIe V. (158 Pa. St. 99, 32 L. 
 R. A, 606), 383. 
 
 Patterson v. (76 Pa. St. 389, 18 
 . , Am. Rep. 313), 327. 
 
 Pixley V. Clark (35 N. Y. 531), 334, 
 
 835, 242. 
 Place V. M!inster (65 N. T. 89), 36. 
 
 V. Taylor (22 Ohio St. 317), 146. 
 Piatt V. Chicago, etc. R. Co. (74 Iowa, 
 137), 358. 
 
 V. Johnson (15 Johns. 213), 342. 
 
 Plinzy V. Augusta (47 Ga. 260), 243. 
 Plumley v. Birge (124 Mass. 57, 36 
 
 Am. Eep. 645), 129. 
 Polk V. Cosgrove (4 Biss. 437), 149. 
 PoUard v. Lyon (91 U. S. 325), 60, 61. 
 Pollasky v. Minohener (81 Mich. 380), 
 
 71, 73. 
 Pollock V. Hastings (88 Ind. 248), 61. 
 
 V. Landis (36 Iowa, 651), 267. 
 Poncher v. N. T. Cent. R Co. (49 
 
 N. Y. 363), 370. 
 Pontifex v. Bignold (3 M. & G. 63), 
 
 300. 
 Pool V. Lewis (41 Ga. 162, 5 Am. Rep. 
 
 526), 341, 343. 
 Poor V. Poor (8 N. H. 307), 77. 
 Pope V. Curl (3 Atk. 343), 134 
 Popham T. Colis (66 N. Y. 69, 23 Am. 
 Rep. 33), 137. 
 ■ V. Pickburn (7 Hurlst. & N. 891), 
 78. 
 Porter v. Durham (74 N. C. 767), 341. 
 
 V. Gilkey (57 ]^o. 235), 267. 
 
 V. Steamboat New England (17 
 Mo. 290), 271. 
 Port Huron; etc. Co., Ames v. (11 
 
 Mich. 139, 83 Am. Dec. 731), 214 
 Port Jervis, etc. Co., Bohan v. (122 
 
 N. Y. 18, 9 L. R A. 711), 248, 357. 
 Portland v. Bangor (63 Ma 120, 20 
 Am. Rep. 681), 106. 
 
 V. Richardson (54 Me. 46), 361. 
 Portland, etc. R Co., Tobin v. (59 
 
 Me. 183), 253. 
 Portsmouth, etc. Co. v. Portsmouth, 
 
 etc. Co. (N. H., 30 Atl. Rep. 364), 
 
 138. 
 Posnett V. Marble (63 Vt. 481, 11 L. 
 
 R A. 163), 61, 73. 
 Post Pub. Co. Y. Hallam (59 Fed. Rep. 
 
 680), 73. 
 Postal Tel. Cable Co., Brown v. (Ill 
 
 N. C. 187, 17 L. R. A. 648), 373, 
 
 390. 
 Poulton V. London & S. W. R R Co. 
 
 (L. R 2 Q. B. 535), 44 
 Pounder v. Ash (Neb., 63 N. W. Rep. 
 
 48), 106. 
 Powell V. Bentley, etc. Co. (34 W. Va. 
 
 804 12 L. R A. 53), 249, 250. 
 
TABLE OF OASES OITED. 
 
 Ixvii 
 
 References are to pagtt. 
 
 PoweU V. MUls (30 Miss. 331), 368. 
 Powers V. Budy (Neb., 63 N. "W. Rep. 
 
 476), 106. 
 Pratt V. Lamson (3 AUen, 37S), 114. 
 
 V. Philbrook (41 Me. 133), 303. 
 Prentiss v. Paisleyi (35 Fla. 937, 7 L. 
 
 R. A. 640), 33. 
 Prescott V. Williams (5 Met. 439), 
 
 113, 343. 
 Press Co., Hayes v. (137 Pa. St. 643, 5 
 L. E. A. 64^, 73. 
 
 V. Stewart (119 Pa. St. 584); 66. 
 Preston v. Cooper (1 DiU. 589), 56. 
 Prewitt V. Trimble (93 Ky. 176), 203. 
 Price V. Conway (134 Pa. ^t. 340, 8 L. 
 R A. 193), 63, 65. 
 
 V. Keyes (62 N. Y. 378), 315. 
 
 V. N. J. R. Co. (31 N. J. 39), 376. 
 
 V. Whitley (50 Mo. 439), 65. 
 Priestly v. Fowlfer (3 M. & W. 1), 323. 
 Probate Court, State v. (51 Minn. 
 
 341), 96. 
 Primrose v. West. IT. TeL Co. (154 
 
 U. S. 1), 390. 
 Proctor V. McCoid (60 Iowa, 153), 203. 
 
 V. Webster (L. R 16 Q. B. D. 113), 
 70. 
 Proprietor, etc. Grand J. C, Dimes 
 
 V. (3 H. L. C. 787, 16 Eng. L. & 
 
 Eq. 63), 164. 
 Prosser v. Coots (50 Mich. 363), 38. 
 Providence v. Clapp (17 How. 161), 
 
 360. 
 Providence Telegram Co.. Morrison 
 
 V. (33 AtL Rep. 19), 65. 
 Pullen V. Glidden (68 Me. 559), 55. 
 Pullman, etc. Co., Nevin v. (106 lU. 
 
 333), 370. 
 Pullman Palace Car Co. v. Love (28 
 
 Neb. 339, 6 L. E. A. 809), 266. 
 ■PumpeUy v. Green Bay Co. (15 Wall. 
 
 166), 334 
 PurceU V. Richmond & Danville R. 
 
 Co. (108 N. C. 414 13 L. E. A. 
 
 113), 43. 
 Purves V. Landell (13 C, & F. 91), 
 
 273. 
 Puterbaugh v. Smith (131 III 199, 19 
 
 Am. St. Eep. 30), 167. 
 Putnam v. Payne (13 Johns, 313), 130. 
 
 Q. 
 
 Quartz-Hill Ca v. Eyre (L. R. 11 , 
 
 Q. B. D. 674), 56. 
 Queen v. Waterhouse (L. R. 7 Q. B. 
 
 645), 358. 
 Queen Ins. Co. v. State (86 Tex. 260, 
 
 23 L. R A. 483), 103. 
 Quigley, Phila. R. Co. v. (31 How, 303), 
 
 35, 59. 
 Quincy v. Barker (81 111. 300), 360. 
 
 V. Joiies (76 111. 231), 247. 
 Quincy Coal Co. v. Hood (77 HL 68), 
 
 96. 
 Quincy, etc. R. Co. v. Wellhoener (73 
 
 lU. 60), 281. 
 Quinlan v. Welch (141 N. Y. 158), 92. 
 Quinn v. Lowell (140 Mass. 106), 250. 
 
 V. Power (87 N. Y. 586, 41 Am. 
 Rep. 392), 221. 
 
 E. 
 
 Radford, Augusta Evening Jfews v. 
 
 (91 Ga. 494, 30 L. R. A. 633), 73. 
 Radley v. Seider (99 Mich. 431), 91. 
 Raff, Trenton Water Power Co. v. 
 
 (36 N. J. 336), 357. 
 Raflerty v. People (69 111. Ill, 73 El. 
 
 37, 18 Am. Rep. 601), 53. 
 Ragan v. T., A. A. & N. M. R. Co. (97 
 
 Mich. 365). 236. 
 Raggett V. Findlater (L. E. 17 Eq. 
 
 Cas. 39), 136. 
 Raher, People v. (93 Mich. 165, 31 Am. 
 
 St. Rep. 675), 49. 
 Railroad Co., Cuming v. (109 N. Y. 95), 
 93. 
 
 V. Fort (17 Wall. 563), 237. 
 
 V. Gladmon (16 Wall. 401), 384, 
 288. 
 
 Holden v. (139 Mass. 268), 223. 
 
 V. Houston (96 U, S. 697), 287. 
 
 Hughes V. (39 Ohio St. 631), 334. 
 
 Hutchinson v. (5 Exch. 843), 331, 
 328. 
 
 V. Jones (96 U. S. 639), 285. 
 
 Morgan v. (L. R 1 Q. B. 149), 333, 
 
 Reynolds v. (43 N. H. 580), 369. 
 
 EoweU V. (67 N. H. 133), 345. 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 Seferences are to pages. 
 
 Eailroad Co. v. Skinner (19 Pa. St. 
 298), 376. 
 V. Stout (17 Wal 657), 283, 388. 
 Kailsback t. Eailsback (Ind. App., 40 
 
 N;E. Eep. 276),81. 
 Rainbow v. Benson (71 Iowa, 301), 69. 
 Eamsdell v. N. Y. & N. E. E. Go. (151 
 
 Mass. 245), 94. 
 Eamsey v. Cheek (109 N. C. 270), 70. 
 
 V. Eiley (13 Ohio, 157), 151. 
 
 Eandal v. Pac. E. Co. (65 Mo. 325), 257. 
 
 Eandall v. Brigham (7 Wall. 533), 157. 
 
 V. Evening News Asso. (79 Mich. 
 
 266, 7 li. E. A. 309), 58, 73. 
 
 V. Hamilton (45 La. Ann. 1184, 
 
 22 L. E. A. 649), 69. 
 
 Eanger v. Gt. West. E. Co. (5 H. L. 
 
 Cas. 71), 35. 
 Banken v. Patten (65 Mo. 378), 315. 
 Eankin v. Crane (Mich.,, 61 N. W. 
 Eep. 1007), 55. 
 State V. (3 S. C. 438, 16 Am. Eep. 
 787), 356. 
 Eathbun v. Emigh (6 Wend. 407), 63. 
 Eathburn v. Payne (19 Wend. 399), 
 
 284. 
 Eavenga v. Mackintosh (3 B. & C. 
 -• 693), 54. 
 Eavenswood v. Flemmings (33 W. 
 
 Va. 53), 118. 
 Eawles, State v. (65 N. C. 334), 47. 
 Eawsen v. Bell (46 Ga. 19), 114. 
 Eawson v. Putnam (128 Mass. 553), 
 
 119. 
 'Eawstron v. Taylor (11 Exch. 369), 
 
 237. 
 Ee Butler (84,Me. 25, 17 L. E. A. 764), 
 60. 
 Hammel (9 E. L 348), 168. 
 Hogan's Liquors (16 E. L 543), 
 
 108. 
 Jessup's Estate (81 Cal. 408, 6 L. 
 
 E. A. 594), 14. 
 Leach (Ind., 21 L. E. A. 701), 105. 
 Newman (75 Cal. 213, 7 Am. St. 
 
 Eep. 146), 14. 
 Sims (54 Kan. 1, 35 L. E. A. 110), 
 
 166. 
 State Prison Commission (R. I., 
 5 New England Eep. 99), 70. 
 
 Ee Wallace (L. E. 1 Pr. C. Cas. 283X. 
 
 167. 
 Eea V. Harrington (58 Vt. 181), 61, 63. 
 Eead v. Amidon (41 Vt. 15), 267. 
 
 V. Gt. East. E. Co. (L, E. 3 Q. B.. 
 
 555), 93. 
 IlL Cent. E. Co. v. (37 111. 484), 290. 
 Eeade t. Sweetzer (6 Abb. Pr.'', N. S., 
 
 9), 134. 
 Eeadhead v. Midland E. Co. (L. E. Z 
 
 Q. B. 412), 228. 
 Reagan's Adin'r v. HoUiman (84 Tex. 
 
 403), 207. 
 Eeaney, Baltimore, etc. E. Co. v. (48: 
 
 Md. 117), 247. 
 Eearick v. Wilcox (81 IlL 77), 67. 
 Redding v. S. C. E. Co. (3 S. C. 1, 16. 
 
 Am. Eep. 681), 231. 
 Eedemptorist y. Wenig (Md., 29 AtL 
 
 Eep. 667), 113. 
 Eeed v. Cheney (111 Ind. 387), 16. 
 First Nat. Bank v. (36 Mich. 263), 
 
 213. 
 V. Harper (25 . Iowa, 87, 95 Am. 
 
 Dec. 774), 31. 
 V. Penn. E. Co. (44 N. J. L. 280), 
 344 
 Eeese v. Hershey (163 Pa. St. 253), 
 336. 
 V. West. U. Tel. Co. (133 Ind. 294, 
 7 L. E. A. 583), 373. 
 Beeves v. Corning (51 Fed. Eep. 774), 
 
 195. 
 Beg. V. Lock (13 Cox, C. C. 244), 48. 
 
 V. Bogers (7 Mod. 28), 166. 
 Rehman, North Pac. R. Co. v. (49 Pa. 
 
 St. 101), 276. 
 Reid V. Atlanta (73 Ga. 533), 358. 
 Bartonshill Coal Co. v. (3 Macq. 
 
 366), 322. 
 V. King (89 Ky. 388), 18. 
 Reilley v. Campbell (59 Fed; Rep. 
 
 990), 338. • 
 Reiss V. Hanchett (141 lU. 419), 18. 
 Reizenstein v. Marquardt (75 Iowa, 
 
 394, 1 L. E. A. 318), 181, 183. 
 Belyea v. K. C, Ft. Scott, etc. R. Co. 
 (113 Mo. 86, 18 L. E. A. 817), 94. 
 Eenihaus v. Wright (125 Ind. 536, » 
 L. E. A. 514), 88. 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 References are to pages. 
 
 Reno, eta Co., Brown v. (55 Fed. Rep. 
 
 239), 173. 
 Reno, et& Works v. Stevenson (20 
 
 Nev. 269, 4 L. R. A. 60), 6. 
 Repentigny, United States t. (5 "Wall. 
 
 811), 111. 
 Republican Pub. Co. v. Conroy (Colo., 
 
 38 Pac. Rep. 433), 67, • 
 Rerick v. Kern (14 S. & E. 267, 16 
 
 Am. Dec 497), 114 
 Revel, Rex v. (1 Str. 420), 166. 
 Rex v. Fisher (3 Camp. 563), 73. 
 V. Ivens (7 C. & P. 213), 266. 
 V. James (5 B. & Aid. 894), 167. 
 V. Revel (1 Str. 420), 166.^ 
 Rexroth v. Coon (15 R. L 35, 2 Am. 
 
 St. Rep. 863), 174 
 Reynolds v. Clark (Stra. 634), 176. 
 V. Hindman (33 Iowa, 146), 278. 
 V. Railroad (43 N. H. 580), 269. 
 Tippecanoe Co. v. (44 Ind. 509), 
 
 313. 
 V. United States (98 U. S. 145), 
 11. 
 Rhode Island Co., Demlck v. (103 U. S. 
 
 11), 94. 
 Rhodes v. Dunbar (57 Pa. St. 374), 
 350. 
 V. Otis (33 Ala. 578, 73 Am. Dec. 
 
 439), 113. 
 State V. (1 PhiL L., N. C, 453, 98 
 Am. Dec. 78), 77. 
 Rice V. Cottrell (5 R. I. 340), 63. 
 V. Evansville (108 Ind. 7), 339. 
 V. Manley (66 N. Y. 82, 33 Am 
 
 Rep. 30), 103, 301. 
 V. Rice (Mich., 63 N. W. Rep. 
 883), 81. 
 Rich V. Basterfield (4 M. G. & S. 783), 
 353, 255. 
 V. New York, etc. R. R. Co. (87 
 N. Y. 383), 3. 
 Richards, Little Schuylkill, etc. Co. 
 V. (57 Pa. St. 142), 234 
 V. London, etc. R. R. Co. (7 C. B. 
 839), 267. 
 Richardson, G. T. R. Co. v. (91 U. S. 
 454), 245. 
 V. Kelly (85 111. 491), 4 
 V. Kimball (28 Me, 463), 41. 
 
 Richardson v. New York, etc. R. Co.- 
 
 (45 N. Y. 846), 377. 
 Richmond, Mo. P^c. R Co. v. (73 Tex, 
 568, 4 L. R. A. 280), 35, 71. 
 Northern Coal Co. v. (58 Fed. Rep.- 
 756), 237. 
 Richmond & D. R Co. v. Jefferson 
 (89 Ga. 554, 17 L. R. A. 571),. 
 104 
 V. Johnston (89 Ga. 560), 97. 
 V. Mitchell (92 Ga. 77), 230. 
 V. Payne (86 Va. 481, 6 L. R. A. 
 
 849), 290. 
 Purcell V. (108 N. C. 414 12 L. R. 
 A. 113), 42. 
 Richmond, etc. R. Co., Owens v. (88- 
 
 N. C. 502), 285. 
 Richmond Mfg. Co. v. Atlantic De- 
 laine Co. (10 R. I. 106), 343. 
 Eigg V. Earl of Lonsdale (1 H. & N, 
 
 933), 174 
 Rigney v. Tacoma Light & Power 
 Co. (Wasb., 26 L. E. A. 435),. 338. 
 Riley, Kansas Cityi etc. R. Co. v. (Z'S- 
 Kan. 374), 338. 
 V. Norton (65 Iowa, 306), 66. 
 Rinehart v. Bills (82 Mo., 534, 53 Am,. 
 
 Rep. 385), 79. 
 Ritchie v. Griffiths (1 Wash. 429, 12- 
 L. R. A. 384), 121, 149, 150,- 
 V. Stenius (73 Mich. 563), 63. 
 Robb V. Carnegie Bros. & Co. (14^ Pa, 
 St. 324 14 L. R. A. 329), 343, 349, 
 Robbins v. Mount (33 How.Pr. 34), 31, 
 V. Treadway (3 J. J. Marsh. 540,- 
 19 Am. Dec. 153), 63. 
 Robert v. Sadler (104 N. Y. 329, 58- 
 
 Am. Rep. 498), 117. 
 Roberts v. Chicago (36 111. 349), 359. 
 V. French (153 Mass. 60), 196, 303. 
 V. Morgan (30 Vt. 319), 131. 
 Robertson, Ex parte (37 Tex. App. 
 
 638), 166. 
 Rol5|inson v. Baugh (31 Mich. 390), 350. 
 V. Black, etc. Co. (60 Cal. 460), 
 
 334 
 V. Cone (33 Vt. 313), 287. 
 V. Marino (3 Wash. 434), 129. 
 V. N. Y. Cent. E. Co. (69 N. Y. 11,. 
 33 Am. Rep. 1), 28a 
 
Ixx 
 
 TABLE OF OASES CITED. 
 
 Sefereneea are to pages. 
 
 Robinson v. Eohr (73 Wis. 436, 3 L. 
 
 R. A. 366), 259. 
 
 V. Smith (3 Paige, 233), 21t 
 
 Eobinson, Ex parte (19 WalL 505), 166. 
 
 Bochdale Canal Co. v. King (14 Q. B. 
 
 134), 20. 
 
 Kochester v. Campbell (123 N. Y. 405, 
 
 10 L. E. A. 393), 261. 
 
 Rochester W. L. Co. v. (3 N. T. 
 
 463, 53 Am. Dec 316), 146. 
 
 Uochester W. L. Co. v. Rochester (3 
 
 N. Y.463, 53 Am. Dec. 316), 146. 
 Eockafellow v. Baker (41 Pa. St. 319, 
 80 Am. Dec. 624), 197. 
 V. Newcomb (57 ni 186), 208. 
 "Eos V. Birkenhead, etc. R R. Co. (7 
 Exch. 36, 7Eng. L. & Eq. 546), 37. 
 (Rogers, Jeffersonville E. Co. v. (38 
 Ind. 116, 10 Am. Rep. 103), 
 37. 
 V. Kennebeck, eta Ca (86 Me. 
 
 261, 25 L. R. A. 491), 290. 
 V. RandaU (29 Mich. 41), 173. 
 Reg. V. (7 Mod. 28), 166. 
 Rogers Mfg. Co. v. (66 Fed. Eep. 
 
 56), 137. 
 V. Smith (17 Ind. 323, 79 Am. Dec. 
 483), 13, 83. 
 Uogers Mfg. Co. v. Eogers (66 Fed. 
 
 Eep. 56), 137. 
 Roman v. Mali (42 Md. 513), 204 
 Booney v. Sewall & D. C. Co. (161 
 
 Mass. 153), 226. 
 Root V. Chandler (10 "Wend. 110, 25 
 Am. Dec. 546), 37. 
 V. King (7 Cow. 613), 67. 
 Rose V. Miles (4 M. & S. 101), 258. 
 Ross V. Butler (19 N. J. Eq. 294X 250. 
 V. Faust (54 Ind. 471, 23 Am. Rep. 
 
 655). 117. 
 V. Miner (67 Mich. 410), 191. 
 EosweU V. Prior (12 Mod. 635, 3 Salk. 
 
 460), 254. 
 Eotan V. Fletcher (15 Johns. 206X 178. 
 Rotch V. Hawes (12 Pick. 136, 22 Am. 
 
 Dec. 414), 180. 
 Eoth V. Eppy (80 HL 233), 91. 
 Bothenberger v. Northwestern, etc. 
 Co. (Minn., 59 N. W. Rep. 531), 
 229. 
 
 Rounds V. DeL etc R Co. (64 N. T. 
 
 129, 31 Am. Rep. 597), 220, 231. 
 RourUer v. Macauley (91 Ky. 135, 11 
 
 L. R. A. 550), 89. 
 Rowan, Cleveland, etc R. Ca t. (66 
 
 Pa. St. 393), 284 
 RoweU V. Raihroad (57 N. H. 133), 245. 
 Eowland v. Kalamazoo Sup'ts (49 
 
 Mich. 553), 359. 
 Ruggles V. Le Sure (24 Pick. 187), 
 
 112. 
 Rulofl V. People (45 N. T. 213), 52. 
 Runge V. FrankUn (72 Tex. 585, 3 L. 
 
 R. A. 417), 68, 69. 
 Rupard v. Chesapeake, etc R. Co. (88 
 
 Ky. 280, 7 L. R. A. 316), 287. 
 Russell V. Chambers (31 Minn. 54), 85. 
 
 V. Hubbard 159 HL 335), 114 
 
 V. Men of Devon (2 T. R. 667), 
 260. 
 
 V. Turnpike Co. (13 Bush, 307), 
 275. 
 Russia Cement Co., Le Page Ca v. (5 
 
 IT. S. App. 112, 17 L. a A. 354), 
 
 137. 
 Rutland, etc. E. Ca, Holden v. (30 
 
 Vt 297), 276. 
 Eyan v. Brown (18 Mich. 196), 117, 
 257. 
 
 V. Chicago, etc E. Ca (60 HL 171, 
 14 Am. Eep. 32), 223. 
 
 Kansas C. & P. E. Co. v. (53 Kan. 
 637), 337. 
 
 V. N. Y. Cent. E. E. Co. (35 N. T. 
 210), 32. 
 RycWicki v. St. Louis (98 Mo. 497, 4 
 
 L. R. A. 594), 239. 
 
 S. 
 
 Sackett v. Ruder (152 Mass. 397, 9 L 
 
 R. A. 391), 92. 
 Sage V. Laurain (19 Mich. 137), 148, 
 
 160. 
 St George v. Wake (1 MyL & K 610), 
 
 208. 
 St. Helen's Smelting Ca v. Tipping 
 
 (11 H. L. Cas. 643), 348. 
 St. John, Bank of St Mary's v. (25 
 
 Ala. 566), 213. 
 
TABLE or CASES CITED. 
 
 Ixxi 
 
 References are to pages. 
 
 St. Louis V. Russell (116 Mo. 248, 20 
 
 L. R. A. 731), 350. 
 St Louis, etc. R. Co. v. Britz (73 111. 
 356), 230. 
 Burham v. (56 Ma 388), 285. 
 Chilton V. (114 Mo. 88, 19 L. R. A. 
 
 269), 108. 
 Davis V. (53 Ark. 117, 7 L. R. A. 
 
 283), 95, 336. 
 V. Ferguson (57 Ark. 16, 18 L. R. 
 
 A. 110), 376. 
 V. Hackett (58 Ark. 381), 231. 
 V. Hopkins (54 Ark, 209, 13 L. R. 
 
 A. 189), 382. 
 Matthews v. (121 Ma 298, 35 L. 
 
 R A. 161), 245. 
 Miller v. (90 Ma 889), 345. 
 Murphy v. (71 Ma 202), 230. 
 St. Paul, M. & M. R. Ca, Fitzgerald 
 V. (29 Minn. 336, 43 Am. 
 Rep. 313),' 387. 
 Ingalls V. (39 Minn. 479), 171. 
 Salem Turnpike Ca v. Hayes (5 
 
 Cush. 458), 276. 
 Sampson v. Graham (96 Pa. St. 405), 
 
 171. 
 Sanborn v. Atchison, etc. R. Ca (35 
 
 Kan. 293), 333. 
 Sanderson v. Caldwell (45 N. Y. 398, 
 6 Am. Rep. 105), 65. 
 Pennsylvania Coal Co. v. (113 
 Pa. St. 126), 244 
 Sandford v. Nichols (13 Mass. 286, 7 
 
 Am. Dee. 151), lOa 
 San Francisco, eta R. Co., Flynn v. 
 
 (40 CaL 14), 246. 
 San Jose Pub. Co., Childers v. (Cal., 
 
 38 Paa Rep. 903), 67. 
 Santa Anna, etc. R Ca, McFadden 
 V. (87 CaL 444 11 L. R A. 252), 
 80. 
 Sarch v. Blackburn (4 C. & P. 897), 
 
 129, 
 Sargent v. Mathewson (38 N. H. 64), 
 
 83. 
 Sartwell v. Parker (141 Mass. 405), 54 
 Satterfield v. Malone (85 Fed. Rep. 
 
 445, 1 L. R A. 85), 149. 
 Sauter v. N. Y. C. R. Ca (66 N. Y. 
 50, 33 Am. Rep. 18), 96, 
 
 Savacool v. Boughton (5 "Wend. 170, 
 
 21 Am. Dec. 181), 184, 186. 
 Savage v. Salem (33 Oreg. 381, 34 L. 
 
 R A. 787), 258. 
 Savannah, F. & W. R Ca v. Geiger 
 (31 Fla. 669, 58 Am. Rep. 
 697), 136. 
 
 V. Smith (Ga., 31 S. E. Rep. 15^ 
 83. 
 Savery v. King (5 H. L. Cas. 655), 315. 
 Savile v. Roberts (1 Ld. Raym. 374), 
 
 36. 
 Sawyer v. Corse (17 Gratt. 330), 152. 
 Scammon v. Chicago (25 111. 424, 79 
 
 Am, Dec. 334), 2, 224 
 Scarlett v. Norwood (115 N. C. 284), 
 
 83. 
 Schar, State v. (50 Ma 393), 158, 
 Schell V. Stein (76 Pa. St. 898), 150. 
 Schmidt v. Kansas C. etc. R Ca (90 
 
 Ma 284), 253. 
 Schmit V. Mitchell (Minn., 61 N. W. 
 
 Rep. 140), 84 
 Schneider v. Hosier (31 Ohio St 98), 
 
 93. 
 Sohroyer v. Lynch (8 Watts, 453), 153. 
 Schulte V. N. P. T. Ca (50 CaL 592X 
 
 358. 
 Schultz V. Byers (34 "Vroom, 442, 13 
 L. R A. 569), 247. 
 
 V. Schultz (89 N. Y. 644), 81. 
 
 V. Wall (154 Pa. St 263, 8 L. R A. 
 97), 266. 
 Schuyler, New York, etc. R Co. v. 
 
 (34 N. Y. 80), 35. 
 Scott V. Bay (3 Md. 431), 353. 
 
 v. Key (11 La. Ann. 232), 14 
 
 V. Lord Seymour (1 H. & C. 319), 
 188. 
 
 V. Shepherd (3 Wils. 408, 3 Wm. 
 BL 893, 4 Sm. L. C. 796), 21, 
 49, 176. 
 
 V. Watson (46 "Me. 863, 74 Am. 
 
 Dea 457), 29. 
 
 Screws v. Watson (48 Ala. 638), 154 
 
 Scribner v. Kelley (38 Barb. 14), 130. 
 
 Scripps V. ReiUy (35 Mich. 371, 24 
 
 Am. Rep. 575, 88 Mich. 10), 59, 74 
 Sears v. Shaf er (1 Barb. 408, 6 N. Y. 
 
 268), 209, 210, 2ia 
 
ly-jdi 
 
 TABLE OF OASES CITED. 
 
 References are to panes. 
 
 Sears v. Terry (3G Conn. 373), 163. 
 Seattle City E. Co., Muldoon v. (7 
 
 Wash. 538, 33 L. E. A. 794), 390. 
 Seaver v. Adams (N. H., 19 Atl. Kep. 
 
 776), 81. ' 
 Seedhouse v. Bro-ward (Fla., 16 So. 
 
 Eep. 435), 170. 
 Seevers v. ,Gabel (Iowa, 27 L. E. A. 
 
 733), 265. 
 Seixo V. Provezende (L. E 1 Ch. App. 
 
 191), 136. 
 Selby, Ohio, etc. E. Co. v. (47 Ind. 
 
 471), 290. 
 Selden v. Myers (20 How. 506), 199. 
 Sellars v. Zomes (5 Bush, 90), 110. 
 Semayne's Case (5 Co. 91, Yelv. 29, 
 
 Sm. L. C, 318), 116. 
 Senior v. Ward (1 El. & El, 385), 93. 
 Sesler v. Montgomery (78 CaL 486, 3 
 
 L. E. A.'653), 58. 
 Severance v. Judkins (73 Me. 376), 55. 
 Severy v. Nickerson (130 Mass. 306), 
 
 353. 
 Sewall V. Eoberts (115 Mass. 263), 14. 
 Sewall & D. C. Co., Eooney v. (161 
 
 Mass. 153), 226. 
 Sewell V. Harrington (11 Vt. 141, 35 
 
 Am. Dec. 675),' 174. 
 Seymour v. Greenwood (7 H. & N. 
 
 355), 220. 
 Shaoklet, Wabash, etc. E. Co. v. (103 
 
 lU. 364), 288. 
 Shadwell v. Hutchinson (4 C. & P. 
 
 333), 358. 
 Shaftsbury's Case(l Mod. 144), 166. 
 Shanks v. Whitney (66 Vt. 405), 195. 
 Shannon v. Jones (76 Tex. 141), 54. 
 Sharp V. Johnston (76 Mo. 660), 55. 
 
 MoUie Edson, etc. Co. v. (38 PsCo. 
 Eep. 850), 98. 
 Shattuck V. State (51 Miss. 575), 153. 
 Shaul V. Brown (38 Iowa, 37, 4 Am. 
 
 Eep. 151), 54 
 Shaw V. Coffin (58 Me. 35, 44 Am. Eep. 
 390), 31. 
 
 V. Cooper (7 Pet. 393), 133. 
 
 V. HalUhan (46 Vt. 389, 14 Am. 
 Eep. B38), 32. 
 Sheahan v. Barry (27 Mich. 317), 307. 
 SheckeU v. Jackson (10 Cush. 35), 74. 
 
 Sheehey v. Cokley (43 Iowa, 183, 33 
 
 Am. Eep. 336), 67. 
 Sheehy v. Graves (58 CaL 449), 154 
 Sheers v. Stein (75 Wis. 44, 5 L. E.,A. 
 
 781), 13. 
 Sheetz v. Wynkoop (74 Pa. St. 198), 
 
 187. 
 Sheldon v. Sherman (42 N. Y. 484, 1 
 
 Am. Eep. 569), 56. 
 Shepard v. Little (14 Johns. 310), 125. 
 Shepherd v. Wakeman (1 Sid. 79), 64, 
 
 87. 
 Sheridan v. Bear (8 Met. 384 41 Am. 
 Dec. 507), 127. 
 
 v. New Quay Co. (4 C. B., N. S., 
 619), 183. 
 Sherin v. Brackett (36 Minn. 153), 130. 
 Sherman v. Johnson (58 Vt 40), 93. 
 Sherrill v. Connor (107 N. C. 543), 123. 
 Ship's Case (2 De G., J. & S; 544), 311. 
 Shipley v. Fifty Associates (106 Mass. 
 
 194), 336. 
 Shively v. Cedar Eapidsj etc. E. Co. 
 
 (74 Iowa, 169), 251. 
 Shoecraf t v. Bailey (35 Iowa, 553), 366. 
 Shoemaker v. Hatch (13 Nev. 361), 
 118. 
 
 V. Nesbit (3 Eawle, 201), 163. 
 Short V. Pierce (Utah, 39 Pac. Eep. ^ 
 474), 197. 
 
 West. U. TeL Co. v. (53 Ark. 434, 
 9 L. E. A. 744), 272, 290. 
 Shufeldt V. Buckley (45 111. 233), 163. 
 Shuman v. Fort Wayne (137 Ind. 109, 
 
 11 L. E. A. 378), 107. 
 Shurtlefl v. Parker (180 Mass. 393), 71. 
 
 V. Stevens (51 Vt. 501^ 31 Am. 
 Eep. 698), 70. 
 Shurtz, Mich. etc. Co. v. (7 Mich. 515), 
 
 368. 
 Sibley v. Aldrich (33 N. H. 553), 366. 
 Sikes V. Johnson (16 Mass. 389), 39. 
 Sillars v. Collier (151 Mass. 50, 6 L. E. 
 
 A. 680), 73. 
 Silver Spring, etc. Co. v. Wansknok 
 
 Co. (13 E. I. 611), 343. 
 Simmons v. Brown (5 R L 299, 73 
 Am. Dec. 66), 33. 
 
 V. Bull (21 Ala. 501, 56 Am. Dec. 
 257), 14 
 
TABLE OF CASES CITED. 
 
 Ixxiii 
 
 JJe/erences 
 
 I Simmons v. Chicago, etc. Co. (110 111. 
 I 340), 226. 
 
 " V. LiUystone (8 Exoh. 431), 180. 
 Simons, Greenfield Sav. Bank v. (138 
 
 Mass. 415), 215. 
 Simpkins v. Rogers (15 111. 397), 173. 
 Simpson v. Grayson (54 Ark. 404), 84. 
 Sims V. Eiland (57 Miss. 607), 203. 
 Singer Mfg. Co. v. MiUer (21 L. R. A. 
 
 229), 267. 
 Slngletary v. Carter (1 Bailey, 467), 
 
 57. 
 Sioux Bkg. Co. V. KendaU (S. D., 62 
 
 N. W. Rep. 377), 203. 
 Sioux City, etc. -Co., Kitteringham v. 
 (62 Iowa, 285), 226. 
 
 Murphy v.' (55 Iowa, 473), 175. 
 Six Carpenters' Case (8 Coke, 146, 1 
 
 Sm. L. C. 143), 116. 
 Skeate t. Beale (11 Ad. & EL 983), 
 
 205. 
 Skelton V. London, etc. R. Co. (L. R. 
 
 2 G. P. 631), 281. 
 Skinner, Railroad Co. v. (19 Pa. St. 
 
 298), 276. 
 Skogltmd V. Minneapolis St. R Co. 
 
 (45 Minn. 330, 11 L. R. A. 222), 79. 
 Slade V. Joseph (5 Daly, 187), 57. 
 Slater, 111. Cent. R. Co. v. (129 111. 91, 
 
 6 L. R. A- 418), 277. 
 Slaughter v. Gerson (13 WalL 379), 
 
 197. 
 Small V. Howard (128 Mass. 131), 273. 
 Smart, Nat. Line, etc. Co. v. (107 Pa. 
 
 St. 492), 269. 
 Smith V. Ashley (11 Met. 367), 74. 
 
 V. Ayrault (71 Mich. 475, 1 L. R. 
 A. 311), 44. 
 
 V. Burrus (106 Mo. 94, 13 L. R A. 
 359), 56. 
 
 V. Chamberlain (38 S. C. 529, 19 
 L. R. A. 710), 103. 
 
 V. Darby (L. R. 7 Q. B. 716, 3 
 Moak, 281), 248. 
 
 V. Derr (34 Pa. St. 136, 75 Am. 
 Dec. 641), 14. 
 
 V. Drew (5 Mass. 514), 275. 
 
 V. Foran (43 Conn. 244, 31 Am. 
 Rep. 647), 43, 
 
 V. Hines (10 Fla. 258), 308. • 
 
 are to pages. 
 
 Smith V. Hurd (13 Met. 371, 46 Am. 
 
 Dec. 690), 211. 
 V. Jones (76 Me. 138, 49 Am. Rep. 
 
 198), 57. 
 V. McConathy (11 Mo. 517), 251. 
 V. Masten (15 Wend. 270), 86. 
 Midland Ins. Co. v. (L. R. 6 Q. 
 
 B. D. 561), 24' 
 V. Milles (1 T. R. 475), 26. 
 V. N. C. A. Co. (64 N. C. 285), 289. 
 V. Norfolk & So. R. Co. (114 N. C. 
 
 728, 25 L. R. A. 287), 285, 
 
 386. 
 , Northern P. R Co. v. (59 Fed. 
 
 Rep. 993, 8 C. C. A. 663), 
 
 333. 
 V. Osborn (83 Mich. 410), 195. 
 V. Pelah (Str. 1364), 128. 
 V. People (20 Johns. 68), 53. 
 V. Reeder (31 Oreg. 541, 15 L. R. 
 
 A. 172), 119. 
 V. Richards (13 Pet. 26), 197. 
 V. Rogers (24 Kan. 140, 36 Am. 
 
 Rep. 254), 14. 
 V. Savannah F. & W. R. Co. (Ga., , 
 
 21 S. E. Rep. 157), 83. 
 V. Shaw (13 Johns. 257), 110. ' 
 V. Smith (73 Mich. 445, 3 L. R. A. 
 
 52), 65, 
 V. State (7 Humph. 43), 50. 
 V. Stewart (5 Pa. St. 373), 62. 
 V. Tackerah (L. R. 1 C. P. 564), 
 
 348. 
 United States v. (40 Fed. Rep. 
 
 755), 60. 
 Smith's Exp. Co., Matthews v. (23 
 
 N. y. Supp. 133), 175. 
 Smithville Mfg. Co., Hayden v. (39 
 
 Conn. 548), 326. 
 Smithwick v. Hall & U. Co. (59 Conn. 
 
 261, 13 L. R A. 379), 286. 
 Snider, Louisville, N. A. & C. R. Co. 
 V. (117 Ind. 435, 3 L. R. A. 434), 
 280. 
 Snook V. Bradford (14 U. a Q. B. 255), 
 
 123. 
 Snow V. Fitchburg R. Co. (136 Mass. 
 
 552), 370. 
 V. Judson (38 Barb. 210), 76. 
 V. Parsons (28 Vt. 459), 244. 
 
Ixxiv 
 
 TABLE OP CASES CITED. 
 
 Beferemces are to pages. 
 
 Snowden v. Wilas (19 Ind. 10, 81 Am. 
 
 Dec. 370), 115. 
 Somers v. Richards (46 Vt. 170), 105. 
 Sonnenschein v. Bartels (41 Neb. 703), 
 
 191. 
 Soulard v. St. Louis (36 Mo. 546), 275. 
 S. C. R Co., Redding v. (3 S. C. 1, 16 
 
 Am. Rep. 681), 231. 
 S. E. R. Co., Franklin v. (3 H. & N. 
 
 211), 98. 
 So. Exp. Co. V. Caperton (44 Ala. 101), 
 
 269. 
 So. Hetton Coal Co. v. N. E. News 
 
 Ass'n (1 Q. B. 133), 63. 
 So. Pac. R. Co. V. Burke (60 Fed. Rep. 
 704), 228. 
 
 V. Dufour (95 Cal. 615, 19 L. R. A. 
 92), 239, 240. 
 
 Meeks v. (52 Cal. 603), 387. 
 
 Mitchell V. (87 Cal. 63, 11 L. R. A. 
 130), 280. 
 
 Morgan v. (95 Cal. 510, 17 L. R. 
 A. 71), 97. 
 
 Moses V. (18 Oreg. 385, 8 L. R, A. 
 135), 277. 
 
 Stephenson v. (93 Cal. 558, 15 L. 
 R. A. 475). 220. 
 Southcote V. Stanley (1 H. & N. 347, 
 
 38 Eng. L. & Eq. 295), 252. 
 Southwick, Gulf, C. & S. F. E. Co. v. 
 
 (30 S. W. Rep. 593), 97. 
 Spaids V. Barrett (57 IlL 28^ 11 Am. 
 
 Rep. 10;, 205. 
 Spaight V. McGovern (16 R L 658, 7 
 
 L. R. A. 388), 130. 
 Spaits V. Poundstone (87 Ind. 533, 44 
 
 Am. Rep. 773), 58. 
 Spalding v. Barnes (4 Gray, 330), 
 
 181. 
 Sparhawk v. Union Pass. R Co. (54 
 
 Pa. St. 401), 252. 
 Spaulding v. Chicago, etc. R Ca (30 
 
 Wis. 110), 245. 
 Speeohly, Thunder Bay Co. v. (31 
 
 Mich. 336, 18 Am. Rep. 184), 343. 
 Spellman v. Lincoln Rapid Transit 
 
 Co. (36 Neb. 890, 30 L. R A. 316), 
 
 368. 
 Spencer & Newbold's Appeal (80 Pa. 
 
 St. 317), 214 
 
 Sperling's Appeal (71 Pa. St. 20, 10 
 
 Am. Rep. 684), 310. 
 Spier V. Brooklyn (139 N. T. 6, 21 L. 
 
 R A. 641), 346. 
 .Spiering v. Andrae (45 Wis. 330, 30 
 
 Am. Rep. 744), 63. 
 Spiller T. Wobum (13 Allen, 137), 
 
 105. 
 Spokane, etc. Pub. Co., Haynes v. (39 
 
 Pac. Rep. 969), 66. 
 Spooner v. Brewster (3 Bing. 136), 89. 
 Spragins v. Houghton (3 IlL 377, 396), 
 
 12, 162. 
 Sprague v. Worcester (13 Gray, 193), 
 
 243. 
 Spray v. Ammerman(61 IlL 309), 139. 
 Sproul V. Pillsbury (73 Ma 20), 58. 
 Squire v. N. Y. Cent. R Co. (98 Masa 
 
 339), 368. 
 Stackpole v. Healy (16 Mass. 33, 8 
 
 Am. Dec. 131), 117. 
 Stamford Water Co., Harding v. (41 
 
 Conn. 87), 241. 
 Stanchfleld v. Newton (143 Mass. 110), 
 
 338. 
 Standard Oil Co., Buffalo, etc. Co. v. 
 (106 N. Y. 669), 35. 
 
 Kinnaird v. (89 Ky. 468, 7 L. R 
 A. 451), 249. 
 Standard Sugar Refinery, Kennedy 
 
 V. (125 Mass. 90, 38 Am. Rep. 314), 
 
 94. 
 Standish v. Lawrence (111 Mass. Ill), 
 
 143. 
 Stanton v. Metropolitan R Co. (14 
 
 Allen, 485), 46. 
 Staples V. Smith (48 Me. 470), 175. 
 
 V. Staples (87 Wis. 593, 34 L. R 
 A. 433), 168. 
 Starke v. Paine (85 Wis. 633), 15. 
 State, Andrews v. (3 Heisk. 165, 1 
 Green Cr. Rep. 466, 8 Am. 
 Rep. 8), 110. 
 
 Baker v. (27 Ind. 485), 145. 
 
 Bait. & O. R. Co. V. (33 Md. 543), 
 285. 
 
 V. Berdetta (73 Ind. 185), 16. 
 
 Billingsley v. (14 Md. 369), 156. ' 
 
 Bradwell v. (55 IlL 535, 16 WalL 
 130), 105. 
 
TABLE OF CASES CITED. 
 
 Lxxv 
 
 Beferences are to pages. 
 
 State V. Burnham (9 N. H. 34, 31 Am. 
 
 Dec. 217), 69, 70. 
 V. Bush (123 Ind. 43), 66. 
 Carroll v. (28 Ark. 99, 18 Am. 
 
 Rep. 538), 110. 
 V. Case (77 Mo. 347), 153. 
 V. Church (63 N. C. 15), 47. 
 V. District Ct (Minn., 63 N. W. 
 
 Rep. 831), 166. 167. 
 V. Dixon (75 N. C. 375), 49r 
 Donnell v. (48 Miss. 661, 13 Am. 
 
 Rep. 876), 104. 
 V. Dqoley (131 Mo. 591), 17. 
 V. Dupaquier (46 La. Ann. 557, 36 
 
 L. R. A. 162), 107. , 
 V. Fion (87 Mo. 310), 153. 
 V. Franklin Falls Co. (49 N. H. 
 
 340, 6 Am. Rep. 513), 132, 
 
 256. 
 V. Gibson (10 Ired. 314). 49. 
 4 V. Glen (7 Jones L., N. C, 331), 
 
 133. 
 V. Hawes (4 Am. L. T. Rep., N. S., 
 
 534), 57. 
 V. Herron (13 Mont. 330, 33 Am. 
 
 St. Rep. 5761,47. '■ 
 V. Holmes (48 N. H. 377), 53. 
 V. Jefferson (66 N. C. 309), 165. 
 V. Judge (45 La. Ann. 1350), 167. 
 V. Kaiser (20 Oreg. 50, 8 L. R A. 
 
 854), 167. 
 V. Kerby (110 N. C. 558), 13. 
 V. Kolsem (130 Ind. 434, 14 L. R 
 
 A. 566), 393. 
 Lamphey v. (53 Minn. 181, 18 L. 
 
 R. A. 670), 118. 
 V. Lauer (55 N. J. L. 305, 30 L. R. 
 
 A. 305), 286. 
 V.Lewis (134 Ind. 250, 20 L. R. 
 
 A. 520), 133. 
 V. Litchfield (58 Me. 267), t07. 
 Louisville, N. O. & T. R. Co. v. 
 
 (3 Inters. Com. Rep. 615, 66 
 
 Miss. 663, 5 L. R. A. 132), 
 
 103. 
 Lowe V. (9 Ohio St. 337), 167. 
 V. McAfee (107 N. C. 813, 10 L. R 
 
 A. 607), 47. 
 V. Maine Cent. R Co. (76 Me. 357), 
 
 97. 
 
 State V. Mancliester, etc. R. Co. (53 N. 
 
 H. 538), 285. 
 V. Mathews (3 Dev. & Bat. 434), 
 
 265. 
 V. Matthews (37 N. H. 450), 166. 
 V. Minnehan (83 Me. 310), 108. 
 V. Moffett (1 Greene, Iowa, 347), 
 
 16. 
 V. Moore (31 Conn. 479), 50. 
 V. Morrill (16 Ark. 384), 166. 
 Myers v. (46 Ohio St. 473, 15 Am. 
 
 St. Rep. 638), 167. 
 V. Neeley (74 N. C. 435, 21 Am. 
 
 Rep. 496), 47. 
 Nehr v. (35 Neb. 638, 17 L. R. A. 
 
 771), 130. 
 V. Noble (118 Ind. 350, lO Am, St. 
 
 Rep. 143), 165. 
 V. O'Neil (51 Kan. 537, 34 L, R. A. 
 
 555), 31. 
 V. Probate Court (51 Minn. 341), 
 
 96. 
 Queen Ins. Co. Vi (86 Tex. 350, 23 
 
 L. R A. 483), 103. 
 V. Rankin (3 S. C. 438, 16 Am. 
 
 Rep. 737, 356. 
 V. Rawles (65 N. C. 334), 47. 
 V. Rhodes (1 Phil. L., N. C, 453, 
 V. Robinson (33 Me. 564), 108. 
 
 98' Am. Dec. 78), 77. 
 V. Schar (50 Mo. 393), 153. 
 Shattuck V. (51 Miss. 575), 153. 
 V. Staten (6 Cold. 333), 13. 
 V. Stevens (2 McCord, 33), 110. 
 V. Sutcliffe (R. 1, 25 Atl. Rep. 
 
 654), 13. 
 V. Syphrett (37 S. C. 29, 13 Am 
 
 St. Rep. 616), 59. 
 V. Taylor (20 Kan. 643), 47. 
 V. Underwood (75 Mo. 230), 53. 
 Ungericht v. (119 Ind. 379, 12 Am. 
 
 St. Rep. 419), 45. 
 V. Wait (44 Kan. 310), 69. 
 Weaver v. (34 S. W. Rep. 648), 48. 
 Wilson V. (30 Fla. 334. 17 L. R. A. 
 
 654), 49. 
 V. Workman (35 W. Va. 367, 14 
 
 L. R..A. 600), 110. 
 State, Janney v. Housekeeper (70 Ind. 
 163, 2 L. R. A. 587), 274 
 
Ixxvi 
 
 TABLE OF CASES CITED. 
 
 Beferencea are to pages. 
 
 State, Lamar v. Dillon (33 Fla. 545, 33 
 
 L. R. A. 134), 13. 
 State ex reL Allison v. Blake (N. J., 
 
 25 L. R. A. 480), 13. 
 State ex reL Ambler v. Hocker (Fla., 
 
 35 L. E. A. 114), 165. 
 State Prison Commission, Re (R. I., 
 
 5 New Eng. Rep. 99), 70. 
 Staten, State v. (6 Cold. 333), 13. 
 Staub V. Kendrick (131 Ind. 336, 6 L. 
 
 R. A. 619), 368, 370. 
 -Stead V. Gasooigne (8 Taunt. 537), 
 
 154., 
 Steam-Gauge & Lantern Co., Pauley 
 
 V. (131 N. Y. 90, 15 L. R. A. 194), 
 
 276, 378. 
 Steam Nav. Co., Marshall v. (3 B. & 
 
 S. 783), 123. 
 Steamboat New World v. King (16 
 
 How. 469), 363. 
 Stearns v. Atl. etc. E. Co. (46 Me. 95), 
 345. 
 
 V. Sampson (59 Me. 568, 8 Am. 
 Rep. 443), 18, 130. 
 Stebbins v. Cent. Vt. R. Co. (54 Vt. 
 
 464), 346. 
 Steele v. Southwick (9 Johns. 214), 
 
 65. 
 Steenberg v. Bigelow (3 Wend. 43), 
 
 160. 
 Steineake v. Marx (10 Mo. App. 580), 
 
 68. 
 Steiner v. Tranum (98 Ala. 315), 183. 
 Steinmetz v. Kelly (73 Ind. 443, 37 
 
 Am. Rep. 170), 46. 
 Stephenson v. So. Pac. R. Co. (93 Cal. 
 
 558, 15 L. R. A. 475), 330. 
 Sterling v. Warden (51 N. H. 217, 13 
 
 Am. Rep. 80), 17. , 
 
 Stetson V. Faxon (19 Pick. 147), 358. 
 
 V. Goldsmith (30 Ala. 603, 31 Ala. 
 '649), 187. 
 Stevens v. King (76 Me. 197), 118. 
 
 Little Miami R Co. v. (20 Ohio, 
 415), 222. 
 
 V. Sampson (L. R. 5 Ex. D. 53), 74. 
 
 State V. (3 McCord, 33), 110. 
 Stevenson v. Morris (37 Ohio St. 10, 
 41 Am. Rep. 481), 80. 
 
 V. Newnam (13 C, B. 385), 32, 293. 
 
 Stevenson, Reno, etc. Works v. (20 
 Nev. 369, 4 L. R A. 60), 6. 
 
 V. Wallace (37 Gratt. 77), 224. 
 
 Western Union Tel. Co. v. (128 
 Pa. St. 443, 5 L. R. A. 515), 
 390. 
 Steward v. Young (L. R 5'C. P. 133, 
 
 126), 75. 
 Stewart v. Cole (46 Ala. 646), 57. 
 
 V. Emerson (53 N. H. 301), 193. 
 
 V. Frazier (5 Ala. 114), 364. 
 
 V. Hawley (31 Wend. 553), 160. 
 
 V. Howe (17 HL 71), 62. 
 
 V. Pierce (Iowa, 61 N. W. Rep. 
 338), 65. 
 
 V. Press Co. (119 Pa. St. 584), 66. 
 
 V. Sonnfeborn (98 U. S. 187), 54 
 Stratton, Com. v. (114 Mass. 303, 19 
 
 Am. Rep. 350), 48. 
 Strubbeev. Trustees (78 Kjl-. 481), 18. 
 Stupak, Lake Shore & M S. R Co. v. 
 
 (183 Ind. 210), 838. 
 Sugar Co., CampbeU v. (63 Me. 553), 
 
 353. 
 Sutolifife, State v. (R. L, 25 AtL Rep. 
 
 654-), 13. 
 Syphrett, State v. (37 S. C. 29, 13 Am. 
 
 Rep. 616), 59. 
 Syracuse, etc. Co.; Tolman v. (98 N. 
 
 Y. 198), 387. 
 Stinger, Philadelphia, etc. R Co. v. 
 
 (78 Pa. St. 319), 363. 
 Stitzell V. Reynolds (67 Pa. St. 54, 5 
 
 Am. Rep. 396), 61. 
 Stockwell V. White Lake (33 Mich. 
 
 341), 164. 
 Stoddard v. Roland (31 S. C. 343), 54. 
 Stoltz V. Deering (113 IIL 334X 14 
 Stone V. Clough (41 N. H. 390), 179. 
 
 V. Dana (5 Met. 98), 108. 
 
 V. New York (35 Wend. 157), 115. 
 Storer v. Gowen (18 Me. 174), 364 
 Stoudt V. Shepherd (73 Mich. 588), 
 
 85. 
 Stout V. Keyes (2 Doug., Mich,, 184), 
 135. 
 
 Railroad Co. v. (17 Wall 657), 388. 
 Stowe V. Thomas (3 Wall. Jr. 547), 184 
 StoweU V. Flagg(ll Mass. 364), 375. 
 Strait V. Brown (16 Nev. 317), 240. 
 
TABLE OF CASES CITED. 
 
 IsxYii 
 
 'References are to pages. 
 
 Straus V. Schwab (Ala., 16 Sa Eep. 
 
 693), 181. 
 Striokfaden v. Zipprick (49 IlL 386), 
 
 152. 
 Street v. Johnson (80 Wis. 455, 14 L. 
 
 R. A. 203), 43, 74. 
 Strode v. Clement (90 Va. 553), 71, Sa 
 Stroebel v. Whitney (31 Minn. 384), 61. 
 Strong V. Bradley (14 Vt. 55), 155. 
 
 V. Lord (107 IlL 35), 204. 
 Suffolk V. Parker (79 Va. 660), 260. 
 SuUivan v. SuUivan (48 IlL Ap. 43S), 
 58. 
 V. Zeiner (98 CaL 346, 20 L. R A. 
 730), 247. • 
 
 Sunbury, etc. R Co. v. Cooper (33 Pa. 
 
 St. 278), 293. 
 Sunderlin v. Bradstreet (46 N. Y. 188, 
 
 7 Am. Rep. 822), 7a 
 Susquehanna Fertilizer Ca v. Ma- 
 lone (73 Md. 268, 9 L. R A. 737), 
 251. 
 Sutton V. Johnstone (1 T. R 493), 160. 
 V. Wauwatosa (39 Wis. 21, 9 Am. 
 Rep. 534), 46. 
 Swain V. Milzner (8 Gray, 183, 69 Am. 
 
 Dea 244), 116. 
 Swan V. Tappan (5 Cush. 104), 75. 
 Sweeney v. Baker (18 W. Va. 158, 81 
 
 Am. Rep. 757), 66. 
 Sweeny v. Old Colony R Co. (10 
 
 Allen, 368), 252. 
 
 Sweetland v. IIL etc. TeL Co. (37 
 
 Iowa, 433, 1 Am. Rep. 285), 373. 
 
 Swett, Chicago, etc. R Co. t. (45 IlL 
 
 197, 93 Am. Dec. 306), 385. 
 
 V. Cutts (50 N. H. 439, 9 Am. Eep. 
 
 376), 337. 
 
 Swift, Hannibal R Co. v. (13 WalL 
 
 363), 370. 
 Swindon Water-works Co., WUts, 
 etc. Canal Co. v. (L. R 9 Ch. 
 App. 451), 241. 
 Switzer v. Laidman (18 Ont. Rep. 
 
 430), 66. 
 Swords V. Edgar (50 N. Y. 38, 17 Am. 
 
 Eep. 395), 354 
 Sycks V. Hay (4 T. R 360), 182. 
 Symonds t. Jones (83 Me. 303, 8 L. 
 R A. 570), 137. 
 
 T. 
 
 Taber v. DeL etc. R Co. (71 N. Y. 
 
 489), 37L 
 Tabert v. Cooley (46 Minn. 366, 13 L. 
 
 R A. 463), 294. 
 Tacoma Light & Water Co., Eigney 
 
 V. (Wash., 26 L. E. A. 425), 338. 
 Tacoma R & M. Co., Jennings v. (7 
 
 Wash. 275), 330. 
 Talbot Y. Scripps (31 Mich. 268), 211. 
 Tabnage v. Smith (101 Mich. 140), 
 
 49. 
 Tanner v. Albion (5 HiU, 121), 249. 
 
 V. Louisville, eta R. Co. (60 Ala. 
 631), 385. 
 Tarleton v. Lagarde ;(46 La. , Ann. 
 
 1868, 36 L. R A. 835), 60, 63. 
 Tasker v. Stanley (153 Mass. 148, 10 
 
 L. R A. 468), 79. 
 Tate V. Williamson (L. R 2 Ch. App. 
 
 55), 309. 
 Tatnall v. Courtney (6 Houst. 434), 9. 
 Taunton v. Costar (7 T. E. 431), 130. 
 Taylor v. Ashton (11 M. & W. 401), 
 300. 
 
 V. Atchison (54 IlL 196, 5 Am. 
 Rep. 118), 198. 
 
 V. Blacklow (3 Bing. K C. 335), 
 216. 
 
 V. Bruscup (27 Md. 319), 163. 
 
 V. Carpenter (3 Story, 458), 138. 
 
 V. Cole (3 T. R 293), 120. 
 
 V. G. T. R Co. (48 N. H. 304), 271. 
 
 V. Green (8 C. & P. 316), 20l. 
 
 V. Hayes (63 Vt. 475), 175. ' 
 
 V. Hearst (CaL, 40 Pao. Eep. 393), 
 75. 
 
 State V. (20 Kan. 648), 47. 
 
 V. Taylor (8 How. 183), 309. 
 Teall V. Felton (1 N. Y. 537, 13 How. 
 
 284), 153. 
 Teipel v. Hilsehdegen (44 Mich. 461), 
 
 384. 
 Templeton v. Linn County (23 Oreg. 
 
 313, 15 L. R A. 730), 260. 
 Tenant v. Goldwin (1 Salk. 360, 6 
 
 Mod. 311), 233. 
 Tenn. Mfg. Co., Lawrence Mfg. Co. v. 
 
 (138 U. S. 537), 136. 
 
Ixxviii 
 
 TABLE OF CASES CITED. 
 
 iSe/erejtces are to pages. 
 
 Terre Haute & I. E. Co. v. Clem (123 
 Ind. 15, 7 Li R. A. 588)^ 280. 
 MoCormack v. (9 Ind. 283), 275. 
 Terrill v. Rankin (2 Bush, 453, 92 
 
 Am. Dec. 500), 110. 
 Terry v. Hooper (1 Lev. 115), 63. 
 
 Houston, etc. E. Co. v. (43 Tes. 
 
 451), 277. 
 V. Hutchinson (L. R. 3 Q. B. 599), 
 83. 
 Terwilliger v. Wands (17 N. Y. 54, 73 
 
 Am. Dec. 420), 64. 
 Texas & P. R. Co., AngUn v. (60 Fed. 
 Rep. 553), 334 
 V. Doherty (Tex. App., 15 S. W. 
 
 Rep. 44), 43. 
 Hamilton v. (64 Tex. 251), 253. 
 Texas Lioan Agency, Fleming v. (26 
 
 L. R. A. 250), 95. 
 Thames Mfg. Co. v. Lathrop (7 Conn. 
 
 550), 107. 
 Thatcher, Ex parte (7 III. 167), 166. 
 The Beduina (L. R. 13 Pub. Div. 58), 
 
 289. 
 The China (7 WalL 53), 188. 
 Thibault V. Sessions (101 Mich. 379),61. 
 Third Ave. R. Co., Hamilton v. (53 
 
 N. Y. 35), 371. 
 Thomas v. Markham (Neb., 63 N. W. 
 Rep. 306), 154 
 "Memphis, etc. R. Co. v. (51 Miss. 
 
 637), 285. 
 V. Phila. & R. R. Co. (148 Pa. St. 
 
 180, 15 L. R, A. 416), 281. 
 V. Winchester (6 N. Y. 97), 331. 
 Thompson v. Gibson (7 M. & W. 456), 
 355. 
 y. Lacy (3 B. & Aid. 283), 365. 
 V. Libby (36 Minn. 281), 30a 
 V. Lockwood (15 Johns. 356), 305. 
 V. Louisville & N. R. Co. (91 Ala. 
 
 496, 11 L. R. A. 146), 97. 
 V. McElamey (83 Pa. St. 194), 115. 
 V. Pioneer-Press Co. (37 Minn. 
 
 285), 66. 
 V. Rose (16 Conn. 71, 41 Am. Dec. 
 
 131), 188. 
 V. Stanhope (Amb. 737), 135, 
 Thorgood v. Robinson (6 Q. B. 769), 
 183. 
 
 Thorne v. Blanchard (5 Johns. 508), 
 70. 
 
 v. Deas (4 Johns. 84), 364. 
 Thorogood v. Bryan (8 C. B. 115), 389. 
 Thorpe v. Mississippi, etc. R. Co. (89 
 
 Mo. 650), 384. ' 
 Thunder Bay, etc. Co. v. Speeohly (31 
 
 Mich. 336, 18 Am. Rep. 184), 342. 
 Thurston v. Blanchard (23 Pick. 18, 
 33 Am. Dec. 700), 204. 
 
 V. Hancock (13 Mass. 230), 347. 
 TiUinghast v. McLeod (17 R, L 208), 
 
 71. 
 TiUman v. De Lacy (80 Ala. 103), 170. 
 Timm v. Bear (29 Wis. 354), 343. 
 Tinsman v. Belvidere R. Co. (35 N. J. 
 
 355, 64 Am. Dec. 415), 141. 
 Tintio Iron Co., Bennett v. (9 Utah, 
 
 291), 225. 
 Tippecanoe Co. v. Reynolds (44 Ind. 
 
 509), 313. 
 Tipping, St. Helen's Smelting Co. v. 
 
 (11 H. L. Cas. 642), 248. 
 Titcomb v. Fitchburg R. Ca (13 
 
 AUen, 354), 377'. 
 Tobin V. Portland, etc. E. Co. (59 Me. 
 
 183), 353. 
 Todd V. Flight (9 C. B., N. S., 377), 354. 
 
 V. Hawkins (8 C. & P. 88), 71. 
 Toledo, etc. R. Co. v. Com (71 IlL 
 493), 245. 
 
 Ragon V. (97 Mich. 365), 236. 
 
 V. Trimble (8 Ind. App. 333), 32& 
 
 Viets V. (55 Mich. 130), 236. 
 Tolls V. Correth (31 Tex. 363), 241. 
 Tolman v. Syracuse, etc. Co. (98 N. 
 
 Y. 198), 387. 
 Tome V. Parkersburg R R. Co. (39 
 
 Md. 36, 17 Am. Rep. 540), 35. 
 Tomlin v. Dubuque, etc. R. Ca (32 
 
 Ind. 106), 118. 
 Tonawanda R. Co. v. Munger (5 Den. 
 
 255, 49 Am. Deo. 339), 136. 
 TousseU V. Scarlett (18 Fed. Eep. 314), 
 
 73. 
 Townsdin v. Nutt (19 Kan. 282), 81. 
 Trabue v. Mays (3 Dana, 138, 28 Am. 
 
 Dec. 61), 62. 
 Tracy v. Troy, etc. R. Co. (38 N. Y. 
 
 433), 277. , 
 
TABLE OF OASES CITED. 
 
 Ixxix 
 
 References are to pages. 
 
 Transfer Co. v. Kelly (36 Ohio St. 86), 
 
 289. 
 Trans-Missouri, etc. Ass'n, United 
 
 States V. (58 Fed. Rep. 58, 24 L. 
 
 R. A. 73), 191. 
 Trautwein, Del. eta R. Co. v. (52 N. 
 
 J. L. 169, 7 L. R. A. 485), 46, 270. 
 Travellers', etc. Asso., Dunpley v. 
 
 (146 Mass. 495), 211. 
 TreadweU v. Whittier (80 Cal. 574, 5 
 
 L. R. A. 498), 380. 
 Tremain v. Richardson (68 N. Y. 617), 
 
 275. 
 Trenton "Water Power Ca v. RafiE (36 
 
 N. J. 335), 257. 
 Trescott v. Moan (50 Me. 347), 156. 
 Tribune Co., Walker v. (39 Fed. Rep. 
 
 827), 65. 
 Trimble v. Anderson (79 Ala. 514), 66. 
 
 V. Foster (87 Mo. 49, 56 Am. Rep. 
 440), 61. ' 
 
 Toledo, St. L. & K. R. Co. t. (8 
 Ind. App. 333), 226. 
 Troesch, Cplumbus, etc. R. Co. v. (68 
 
 IlL 545, 18 Am. Rep. 578), 228. 
 Troxall v. SilverthOrne (N. J. Ch., 
 
 1881:, 10 Cent. Rep. 189), 33. 
 Troy, etc. Co., BrowneU v. (55 Vt. 
 218), 257. 
 
 Tracy v. (38 N. Y. 433), 377. 
 True V. Int. TeL Co. (60 Me. 9), 391. 
 Trullenger, Oregon Iron Co. v, (3 
 
 Greg. 1), 243. 
 Tnilock V. Merte (73 Iowa, 510), 349. 
 Tnmtle v. North Star, etc. Co. (Minn., 
 
 58 N. W. Rep. 833), 335. 
 Trustees, etc., Strubbe v. (78 Ky. 481), 
 
 18. 
 Tryon v. Whitmarsh (1 Met. 1, 35 
 
 Am. Dec. 339), 191. 
 Tucker, Columbus & Hooking, .etc. 
 
 Co. V. (48 Ohio St. 41, 13 L. R. A. 
 
 577), 343. 
 Tucker v. Jervis (75 Me. 184), 37. 
 
 V. Newman (11 Ad. & EL 40), 236. 
 Tuff V. Warman' (5 C. B., N. S., 573), 
 
 285. 
 Turner v, Hebron (61 Conn. 175, 14 
 L. R. A. 386), 121. 
 
 V. Hitchcock (20 Iowa, 310), 40. 
 
 Turner v. Kennedy (Minn., 58 N. W. 
 Rep. 833), 171. 
 
 V. Patterson (7 L. R. Ch. App. 
 339), 209. 
 TurniSike Co. v. Van Dusen (10 Vt 
 
 197), 375. 
 Turpen v. Booth (56 Cal. 65), 160. 
 Turton v. New York Recorder (N. Y., 
 
 38 N. E. Rep. 1009), 67, 75. 
 Twigg V. Ryland (63 Md. 380, 50 Am. 
 
 Rep. 326), 129. 
 Twiname, Cit. St. R. Co. v. (121 Ind. 
 375, 7 L. R. A. 353), 80. 
 
 Cit. St. R. Co. V. (Ill Ind. 587, 270. 
 Tyson v. McGuiness(35Wia 656), 189. 
 
 u. 
 
 Uhlein v. Cromack (109 Mass. 273), 
 
 130. 
 Uhler, Glendon Iron Co. v. (75 Pa. St. 
 
 467, 15 Am. Rep. 599), 137, 293. 
 Underbill v. Welton (32 Vt. 40), 61. 
 Underwood v. He wson (Stra. 596), 246. 
 
 V. Robinson (106 Mass. 296), 185. 
 
 V. State (75 Mo. 230), 53. 
 
 y. United Society (11 Bush, 265, 
 31 Am. Rep. 314), 40. 
 
 V. Waldron (33 Mich. 735), 3^3. 
 Ungericht v. State (119 Ind. 379, 12 
 
 Am. St. Rep. 419), 45. 
 Union, etc. Co., Kem v. (90 Mo. 314), 
 
 377. 
 Union Cattle Co., Barton v. (38 Neb. 
 
 350), 7 L. R. A. 457), 343. 
 Union Fire Ins. Co., Clark v. (40 N. H. 
 
 833, 77 Am. Det. 731), 316. 
 Union Mfg. Co., Keeney, etc. Mfg. 
 
 Co. V. (39 Conn. 576), 341. 
 Union Pac. R. Co. v. Lapsley (4 U. S. 
 App. 543, 16 L. R. A. 800), 
 289. 
 
 V. McDonald (153 U. S. 362), 287. 
 Union Pass. R. Co., Sparhawk v. (54 
 
 Pa. St. 401), 253. 
 Union Sugar Refinery Co., Corrigan 
 
 V. (98 Mass. 577), 283. 
 United Society v. Underwood (11 
 
 Bush, 365, 31 Am. Rep. 214), 40, 
 
 184 
 
Lxxx 
 
 TABLE OJ" CASES CITED. 
 
 Beferences are to pages. 
 
 United States v. Hoar (3 Mason, 311), 
 256. 
 V. Hudson (7 Cranch, 33), 166. 
 Kinkead v. (150 U. S. 488). 171. 
 Mackin v. (117 U. S. 348), 60. 
 V. Repentigny (5 WalL 311), 111. 
 Reynolds v. (98 U. S. 145), 11. 
 V. Smith, 40 Fed. Rep. 755), 60. 
 V. Trans-Missouri,' etc. Ass'n (58 
 Fed. Rep. 58, 34 L. R. A. 
 73), 191. 
 United States Exp. Co. v. Bockman 
 (38 Ohio St. 144), 267. 
 Hadd V. (53 Vt. 335), 269. 
 United States TeL Co., Breese v. (48 
 
 ■ N. Y. 132, 8 Am. Rep. 536), 373. 
 University v. Tucker (31 W. Va. 631), 
 
 134 
 Upjohn T. Richland (46 Mich. 542), 
 233. M 
 
 Upton V. Hume (34 Oreg. 430, 31 L.' 
 R. A. 493), 67, 72, 74 I 
 
 V. Tribiloock (91 U. S. 45), 190. i 
 Usher v. Severance (30 Me. 9, 37 Am. 
 Dec. 33), 73. 
 West Jersey R. Co. v. (136 Pa. St. 
 206, 4 L. R. A. 261), 93, 95. 
 Usill V. Hales (L. R. 3 C. P. D. 319), 
 '73. 
 
 Vale Mills v. Nashua (63 N. H. 136), 
 
 239. 
 Valentine v. Stewart (15 CaL 387), 
 
 216. 
 V^ey Falls Co.,*Brodeur v. (16 R. L 
 
 448), 323. 
 Valparaiso v. MoflStt (Ind. App., 39 
 
 N. E. Rep. 909), 259. 
 Van Auken v. C. & W. M. R. Co. (96 
 
 Mich. 307, 22 L. R. A. 33), 46. 
 Van Bracklin v. Fonda (12 Johns. 
 
 468), 193. 
 Van Dusen, Turnpike Co. v. (10 Vt. 
 
 197), 375. 
 Van Horn v. Van Horn (53 N. J. L. 
 
 384, 10 L. R. A. 184), 36, 101. 
 Van Leuven v. Lyke (1 N. Y. 515, 49 
 
 Am. Dec. 346), 131, 138. ' 
 
 Van Raalte v. Harrington (101 Ma 
 
 603, 11 L. R. A. 424), 191. 
 Van Schaick v. Sigel (60 How. Pr. 
 
 133), 151. 
 Van Slyke v. Ins. Co. (39 Wis. 390,20 
 
 Am. Rep. 50), 165. . 
 Van Tassel v. Capron (1 Denio^ 250, 
 
 43 Am. Dec. 667), 63. 
 Van Voorhis v. Brintnall (86 N. Y. 
 
 18, 40 Am. Rep. 505), 14. 
 Vandenburg v. Van Bergen (13 
 
 Johns. 313), 240. 
 Vanderbilt v. Mathis (5 Duer, 304), 
 
 54. 
 Vanderslice v. Philadelphia (103 Pa. 
 
 St. 102), 360. 
 Vanderwiele v. Taylor (65 N. Y. 341), 
 
 337. 
 Vandiver v. Pollak (97 Ala. 467, 19 
 
 L. R. A. 638), 44. 
 Vanhooser v. Berghofl (90 Mo. 487), 
 
 373. 
 Vanhorn v. Freeman (6 N. J. L. 332), 
 
 85. 
 Vanneman v. Powers (56 N. Y. 39), 32. 
 Vaughan v. Menlove (3 Bing. N. C. 
 
 468), 244. 
 Veginan v. Norse (160 Mass. 143), 226. 
 Venard v. Cross (8 Kan. 348), 358. 
 Venderzee v. McGregor (12 Wend. 
 
 545), 70. 
 Vennum v. Huston (38 Neb. 393), 54. 
 Vicars v. Wilcocks (8 East, 1), 32, 101. 
 Viets V. Toledo, etc. R. Co. (55 Mich. 
 
 130), 326. 
 Vinton v. Middlesex, etc. R Co. (11 
 
 AUen, 304), 371. 
 Vosburg V. Putney (80 Wis. 523, 14 L. 
 
 R A. 227), 2, 23. 
 Vessel V. Cole (10 Mo. 634 47 Am. 
 
 . Dec. 136), 86. 
 Vreeland v. N. J. Stone Co. (29 N. J. 
 
 Eq. 188), 190. 
 
 w. 
 
 Wabash, etc. R Co. v. Farver (11 Ind. 
 195), 357. 
 Hael V. (119 Mo. 325), 331. 
 V. Shacklet (105 IlL 364), 288. 
 
TABLE OF CASES CITED. 
 
 Ixxxl 
 
 Seferences are to pages. 
 
 Wachsimith v. Merchants' Nat. Bank 
 
 (96 Mich. 436, 31 L. R. A. 378), 34. 
 Wade V. Pettibone (11 Ohio, 57, 37 
 
 Am. Dec. 408), 314. 
 Wahle V. Reinbach (76 111. 332), 351. 
 Wait, State v. (44 Kan. 310), 69. 
 Waite V. N. B. R. Co. (El., BL & El. 
 
 719), 387. '* 
 
 Wakefield v. Newport (60 N. R 374), 
 
 359. 
 Waldman, Com. v. (140 Pa. St. 89, 11 
 
 L. R. A.5e3),.45. 
 Walker v. L. S. &M. S. R. Co. (Mich., 
 , 63 N. W. Rep. 1033), 96. 
 
 V. Tribune Co. (39 Fad. Rep. 837), 
 65. 
 Wall V. Trumbull (16 Mich. 338), 161. 
 Wallace v. Cannon (38 Ga. 199, 95 
 Am. Dec. 385), 45. 
 
 V. Rodgers (156 Pa. St. 395), 74 
 V/aller v. Bowling (108 N. C. 389, 13 
 
 L. R A.'361), 131, 183, 183. 
 Walling V. Potter (85 Conn. 183), 366. 
 Wallis V. Harrison (4 M. & W. 538), 
 
 lis. 
 
 Manchester, etc. R. Co. v. (14 C. 
 B. 318, 25 Eng. L. & Eq. 
 373), 376. 
 V. TraesdeU (6 Pick. 455), 185. 
 Walsen, People v. (38 Pac. Rep. 1119), 
 
 373. 
 Walter v. Selfe (4 De G. & S. 315, 4 
 
 Eng. L. & Eq. 15), 250. 
 Walters v. Morgan (3 De G., F. & J. 
 
 718), 193. 
 Walther v. Warner (35 Mo. 377), 115. 
 Wausknok Co., Silver Spring, etc. 
 
 Co. V. (18. R I. 611), 343. 
 Ward V. Brown (64 IlL 350, 16 Am. 
 Rep. 561), 137. 
 V. Dick (47 Conn. 300), 67. 
 Orange, etc. R. Co. v. (47 N. J. L. 
 
 560), 284. 
 V. Thompson (48 Iowa, 588), 91. 
 Warner v. Benjamin (89 Wis. 390), 196. 
 V. Clark (45 La. Ann. 863, 21 L. 
 
 R A. 503, 60, 66. 
 V. Erie R. Co. (39 N. Y. 468), 223. 
 V. West. N. C. R Co. (94 N. C. 
 250), 96. 
 
 Warnock v. Mitchell (43 Fed. Rep. 
 
 428), 58. 
 Warren, Louisville Coffin Co. v. (78 
 Ky. 400), 250. 
 
 V. Warren (89 Mich. 133, 14 L. R 
 A. 545), 81. 
 
 V. Westbrook Mfg. Co. (86 Me. 32, 
 26 L. R A. 284), 341. 
 Waterbury v. Lookwood (4 Day, 357), 
 
 185. 
 Water Co., Harding v. (41 Conn. 87), 
 
 340. 
 Waterer v. Freeman (Hob. 366), 147. 
 Waterman v. Johnson (13 Pick. 261), 
 
 118. 
 Watkins v. Roberts (28 Ind. 167), 264 
 
 V. Wallace (19 Mich. 57), 185. 
 Watriss v. National Bank (124 Mass. 
 
 571, 26 Am. Rep. 694), 173. 
 Watrous, Mudsill Min. Co. v. (61 
 
 Fed. Rep. 163), 196. 
 Watson V. Jones (13 WalL 679), 106. , 
 
 V. McCarthy (3 Kelly, 57, 46 Am. 
 Dec. 380), 62. 
 
 V. Watson (9 Conn. 140), 186. 
 Watters, Domestic, etc. Co. v. (50 
 
 Ga. 573), 267. 
 Watts V. Hart (7 Wasli. 178), 238. 
 Way, Constitution Pub. Co. v. (Ga., 
 
 21 S. E. Rep. 139), 75. 
 Weaver v. Bachert (3 Pa. St. 80), 208. 
 
 V. Devendorf (3 Den. 117), 107, 160. 
 
 V. Schriver (Md., 80 Atl. Rep. 189), 
 ' 197. 
 
 V. State,(Tex. Cr. App., 24 S. W. 
 ' Rep. 648), 48. ■ 
 Webb V. Cecil (9 B. Mon. 198, 48 Am. 
 
 Dec. 423), 36. 
 Webber v. Barry (66 Mich. 127), 103. 
 
 V. Gay (24 Wend. 485), 186. 
 Weber, Atchison, etc. Co. v. (33 Kan. 
 
 543), 371. 
 Webster v. Sharpe (N. C, 21 S. E. 
 
 Rep. 912), 61. 
 Weckler v. First Nat. Bank (42 Md. 
 
 581, 20 Am. Rep. 95), 34 
 Weintz v. Kramer (44 La Ann. 35), 
 
 155. 
 Weir, Flint, etc. R Co. v. (37 Mich. 
 
 Ill), 264 
 
Ixxxii 
 
 TABLE OF CASES CITED. 
 
 Beferences are to pages. 
 
 Weir-Shugart Co., Deere v. (Iowa, 59 
 
 N. W. Rep. 255), 142. 
 Weiss V. Oregon, etc. Co. (13 Oreg. 
 496), 241. 
 
 y. Pa. R. Co. (79 Pa. St. 387), 284 
 Welch V. Durand (36 Conn. 182, 4 
 Am. Rep. 55), 177, 246. 
 
 V. Stowell (2 Doug., Mich., 332), 17. 
 
 V. Wesson (6 Gray, 505), 46. 
 Weld V. Hornby (7 East, 195), 256. 
 Weldon, IlL Cent. R. Co. v. (52 IlL 
 
 290), 98. 
 Wellhoener, Quincy, etc. R. Co. v. 
 
 (72 lU. 60), 281. 
 Wellington v. Downer, etc. Co. (104 
 
 Mass. 64), 246. 
 Wells V. Atlanta (43 Ga. 67), 145. 
 
 V. Cook (16 Ohio St. 67, 88 Am. 
 Dec. 436), 200. 
 Welsh V. Cochran (63 N. Y. 181, 20 
 
 Am. Rep. 519), 88. 
 Wendell v. N. Y. etc. R. Co. (91 N. Y. 
 
 420), 285. 
 Wennhak v. Morgan (L. R. 20 Q. B. 
 
 D. 635), 58. 
 Werlein, Factors' & T. Ins. Co. v. 
 
 (42 La. Ann. 1046, 11 L. R. A. 
 
 361), 286. 
 Werner v. Chamberlain (Del, 30 Atl. 
 
 Rep. 638), 128. 
 Wert V. Strouse (88 N. J. L. 184), 
 
 84. 
 Wertz V. West. U. TeL Co. (7 Utah, 
 
 446, 13 L. R. A. 510), 290. 
 West, Chicago, etc. R. Co. v. (125 m. 
 330), 320. 
 
 V. Smallwood (3 M. & W. 418), 
 187. 
 
 V, Wright (98 Ind. 335), 199. 
 West, etc. Co. v. Adams (55 Ga. 279), 
 
 230. 
 West Cheshire, etc. R. Co. v. Miles 
 
 (55 Pa. St. 209, 93 Am. Dec. 744), 
 
 103. 
 West College v. Cleveland (12 Ohio 
 
 St. 375), 259. • 
 West Gardiner V. Manchester (73 Me. 
 
 509), 13. 
 West Jersey R. Co., Knight v. (108 
 
 Pa. St. 250), 94. 
 
 West N. C. R. Co., Warner v. (94 N. C. 
 
 250), 96. 
 West N. Y. & Pa. R. Co., Wooden v. 
 (126 N. Y. 10, 13 L..R. A. 458), 94. 
 West Pub. Co. V. L. C. P. Co. (64 Fed. 
 
 Rep. 360, 25 L. R. A 441), 134. 
 West E. Co. Keegan v. (8 N. Y. 175, 
 
 59 Am. Dec. 476), 328. 
 West U. Tel. Co., Bhrkett v. (Mich., 
 
 61 N. W. Rep. 645), 390. 
 V. Call Pub. Co. (Neb., 37 L. R. A. 
 
 623), 371, 372. 
 V. Carew (15 Mich. 525), 372. 
 Clement v. (137 Mass. 463), 372. 
 Connell v. (16 Nev. 34, 30 L. R. A 
 
 173), 272. 
 V. Daugherty (54 Ark. 31, 11 l2 
 
 E. A 102), 373, 291. 
 V. Edsall (63 Tex. 668), 290. 
 Francis v. (Minn., 25 L. R. A. 
 
 406), 272. 
 Grinhell v. (113 Mass. 299, 18 
 
 Am. Eep. 485), 372, 290. 
 Keiley v. (109 N. Y. 231), 273. ' 
 V. McGill (57 Fed. Rep. 699, 21 L. 
 
 R. A. 818), 95. 
 V. Munford (87 Tenn. 190, 3 L. R. 
 
 A. 601), 273. 
 Pepper v. (87 Tenn. 554, 4 L. E 
 
 A. 660), 290. 
 Primrose v. {154 U. S. 1). 290. 
 Reese v. (123. Ind. 294, 7 L. E. A 
 
 583), 273. 
 V. Short (53 Ark. 434, 9 L. E. A 
 
 744), 273, 390. 
 V. Stevenson (128 Pa. St. 442, 5 
 
 L. E. A. 515), 290. 
 Wertz V. (7 Utah, 446, 13 L. E. A. 
 
 510), 290. 
 V. Yopst (108 Ind. 248, 3 L. R. A. 
 
 224), 291. 
 Young V. (107 N. C. 370, 9 L. R. 
 
 A 669). 272. 
 Young V. (65 N. Y. 163), 273. 
 West V. & P. R. Co., Butcher v. (37 
 W. Va. 180, 18 L. R A- 519), 284 
 Westbrook Mfg. Co., Warren v. (86 
 
 Me. 32, 26 L, E. A. 384), 341. 
 Westcott V. Cent. Vt. R. Co. (61 Vt 
 
TABLE OF CASES CITED. 
 
 Ixxxiii 
 
 References are to pages. 
 
 Westlake v. "Westlake (34 Ohio St. 
 
 621), 81. 
 Wetmore v. Scovel (3 Edw. Ch. 515), 
 
 135. 
 Weymputh v. Gile (72 Me. 446), 127. 
 Wharton v. Stevens (84 Iowa, 107, 15 
 
 L. R. A. 630), 238. 
 Wheatley v. Harris (70 Am. Dec. 260), 
 
 174. 
 Wheaton v. Beecher (66 Mich. 307), 
 73. 
 V. Peters (8 Pet. 591), 133. 
 Wheeler v. Clark (58 N. Y. 267), 142. 
 
 V. Westport (30 Wis. 392), 284. 
 Wheelwright v. Boston, etc. Co. (135 
 
 Mass. 335), 387. 
 Whidden v. Seelye (40 N. H. 247), 179. 
 Whitaker v. Sumner (7 Pick. 551, 19 
 Am. Dec. 298), 188. 
 T. Warren (60 N. H. 20, 49 Am. 
 Rep. 303), 83. 
 Whitcomb's Case (130 Mass. 118, 31 
 
 Am. Rep. 503), 166. 
 White V. Brooks (43 N. H. 403), 183. 
 V. CarroU- (43 N. Y. 101, 1 Am. 
 
 Rep. 504), 68. 
 V. C, M. & St. P. R Co. (1 S. D. 
 
 336, 9 L. R. A. 825), 245. 
 V. Com'rs of Multnomali Co. (13 
 Oreg. 317, 57 Am. Rep. 843), 
 13. 
 V. Fitchburg R. Co. (186 Mass. 
 
 331), 370. 
 Gorham Co. v. (14 Wall. 511), 137. 
 V. Murtland (71 lU. 250, 33 Am. 
 
 Rep. 100), 84, 85. 
 V. Nellis (31 N. Y. 405, 88 Am. 
 
 Dec. 383), 83. 
 V. Nichols (3 How. 266), 68, 71. 
 V. Phelps (13 N. H. 383), 181. 
 AVhitf ord v. Panama R. Co. (23 N. Y. 
 
 465), 96. 
 Whiting V. Hill (33 Mich. 899), 208. 
 V. Mills (7 U. C. Q. B. 450), 266. 
 Whitney v. AUen (62 111. 472), 70. 
 V. Bartholomew (31 Conn. 213), 
 248. 
 Whitwofth V. Hall (3 B. & Ad. 695), 
 
 56. 
 Wier's Appeal (81* Pa. St. 203), 247. | 
 
 Wiggett V. Fox (36 E. L. & Eq. 486, 
 
 11 Exch. 832), 233. 
 
 Wilcox, Chicago, City R. Co. v. (138 
 
 111. 370, 31 L. R. A. 76), 288. 
 
 V. Moon (64 Vt. 450, 15 L. R. A. 
 
 760), 59. 
 
 Wildee v. McKee (ill Pa. St. 335, 56 
 
 Am. Rep. 271), 36, 101. 
 Wilder v. Stanley (65 Vt. 145, 20 L. 
 
 R. A. f79), 127. 
 Wilhite V. Speakman (79 Ala. 400), 
 
 136. 
 Willey V. Carpenter (64 Vt. 213, 15 
 
 L. R. A. 853), 9, 48. 
 Williams, Chicago, etc. R. Co. v. (55 
 111. 185, 8 Am. Rep. 641), 
 103. 
 V. Clough (3 H. & N. 258), 227. 
 V. Davis (69 Pa. St. 21), 200. 
 V. Dow (32 Me. 559), 185. 
 V. East India Co. (3 East, 193), 
 
 246. 
 V. Hill (19 Wend. 305), 64. 
 V. Holdredge (33 Barb. 396), 63. 
 V. Jones (39 W. Va. 331, 25 L. R. 
 
 A. 333), 124. 
 V. Karnes (4 Humph. 9), 65. 
 V. McManus (38 La. Ann. 161, 58 
 
 Am. Rep. 171), 61. 
 V. Moray (74 Ind. 25, 89 Am. Rep.. 
 
 ' 76), 129. ,,; 
 V. New Albany, etc. R. Co. (5 Ind. 
 
 Ill), 276. 
 V. Taylor (6 Bing. 183), 55. 
 V. Weaver (75 N. Y. 30), 161. 
 Willi s V. Perry (Iowa, 36 L. R. A. 134) 
 
 240. 
 
 Willitts T. Chicago, B. & K. C. R. 
 
 Co. (88 Iowa, 281, 21 L. R. A. 608), 
 
 238, 339. 
 
 Wilmarth v. Burt (7 Met. 257), 186. 
 
 V. Woodcock (58 Mich. 483), 233. 
 
 Wilmington & W. Co., Clark v. (109 
 
 N. C. 430, 14 L. R. A. 749), 385. 
 Wilson, Chicago, etc. R. Co. v. (63 IlL 
 167), 370. 
 V. Eggleston (27 Mich. 257), 196. 
 V. Franklin (63 N. C. 259), 292. 
 ^ V. Haley Live-stock Co. (153 U. S. 
 89), 175. , 
 
Ixxxiv 
 
 TABLE OF CASES CITED, 
 
 References are to pages. 
 
 Wilson V. Hoffman (93 Mich. 72, 33 
 ■ Am. St. Rep. 435;, 178. 
 
 V. Louisville, etc. E. Co. (133 Ind. 
 517, 18 L. E. A. 105), 268. 
 
 V. McLaughlin (107 Mass. 587), 
 177. 
 
 V. New Bedford (108 Mass. 261), 
 233, 235. 
 
 V. New York, etc. R. Co. (97 N. 
 Y. 87), 290. 
 
 People V. (64 III 195, 16 Am. Rep. 
 528), 166, 167. 
 
 V. State (30 Fla. 234, 17 L. R. A. 
 654), 49. 
 Wilts, etc. Caiial Co. v. Swindon 
 
 Water-works Co. (L. R. 9 Ch. 
 
 App. 451), 241. 
 Wimbish v. Hamilton (La. Ann., 16 
 
 So. Rep. 856), 69. 
 Winchester v. Craig (33 Mich. 205), 
 
 183. 
 Windham v. Wither (Stra. 515), 40. 
 Winner v. Oakland T'p (158 Pa. St. 
 
 405), 79. 
 Winnipiseogee Lake Co., Worster v. 
 
 (35 N*. H. 535), 189. 
 Winship V. Pitts (3 Paige, 359), 124 
 Winter v. Kansas C. R. Co. (99 Mo. 
 
 509, 61^ E. A. 536), 288. 
 Witbeck v. Witbeck (25 Mich. 439), 
 
 207. 
 Womack v. Fudicker (47 La. Ann. 
 
 — ), 55. 
 Wonder v. B. & O. R. Co. (32 Md. 411, 
 
 3 Am. Rep. 143), 223. 
 Wonderlich v. Walker (Neb., 60 N. 
 
 W. Rep. 103), 154. 
 Wood V. Beavan (L. R. 11 Q. B. 609), 
 61. 
 
 V. Essen (9 Can. S. C. Rep. 239), 
 258. 
 
 Y. Vaughn (28 N. B. 472), 129. 
 
 V. Waud (3 Exch. 748), 243. 
 Woodcock V. Bennet (1 Cow. 711, 13 
 
 Am. Dec. 568), 187. 
 Wooden v. West N. Y. & Pa. E. Co. 
 
 (126 N. Y. 10, 13 L. R. A. 458), 
 
 94 
 Woodgate v. Knatohbull (3 T. R. 
 
 148), 3& 
 
 Woodley v. Metropolitan R. Co. (L. 
 
 E 2 Ex. D. 384), 226. 
 Woodman v. Tufts (9 N. H. 88),- 141. 
 Woodruff V. Richardson (20 Conn. 
 238), 66. 
 
 V. North Bloomfield Co. eta Co. 
 (18 Fed. Eep. 753), 256. 
 Woolen Mills, Lawrence, etc. Co. v. 
 
 (139 Mass. 335, 37 Am. Rep. 362), 
 
 136. 
 Woolever v. Stewart (36 Ohio St. 146), 
 
 122. 
 Woolf V. Chalker (31 Conn. 131), 130. 
 Woolsey v. C, B. & Q. R. Co. (39 Neb. 
 
 798, 25 L. R. A. 79), 370. 
 Worcester & A. E. Co., Nashua, etc. 
 
 Co. V. (63 N. H. 159), 43. 
 Workman, State v. (35 W. Va. 367, 
 
 14 L. E. A. 600), 110. 
 World Pub. Co, v. Mullen (Neb., 61 
 
 N. W, Eep, 108), 65, 67, ' 
 Worley v. Spurgeon (38 Iowa, 465), 
 
 9a 
 
 Worster v. Winnipiseogee Lake Co. 
 
 (35 N. H. 525), 189. 
 Worthington v. Hanna. (33 Mich. 
 530), 154 
 V. Waring. (157 Mass. 431, 20 L. 
 E. A. 342), 103. 
 Worthy, Galveston, H. & S. A, E. Co. 
 
 V. (29 S. W. Eep. 376), 97. 
 Wright^v. Howard (1 Sim, & Stu. 
 190), 341, 
 V. Leonard (11 C. B., N. S., 358), 
 
 32. 
 V. Peet (36 Mich. 313), 204 
 V. Skinner (Fla., 16 Sa Eepi 335), 
 
 183. 
 V. Wheeler (8 Ired. 184), 153. 
 Wyeley Canal Co. v. Bradley (7 East, 
 
 368), 347, 
 Wylie V, Elwood (134 IlL 381, 9 L. R. 
 A. 726), 250, 358. 
 v. Grundysen (51 Minn, 360, 19 
 
 L. R. A. 83), 173, 
 V, Northampton Bank (119 U. S. 
 301), 264 
 Wynkoop v. Wynkoop (43 Pa. St. 
 
 293, 82 Am. Dec. 508), 88. 
 Wynn v. Garland (19 Ark. 23), 114 
 
TABLE OF OASES CITED., 
 
 Ixxxv 
 
 Beferencea are to pages. 
 
 Yarborough, Lee Ca v. (85 Ala. 590), 
 
 Yates V. Lansing (5 Johns. 282, 6 Am. 
 Dec. 290), 160, 163. 
 
 V. Lansing (9 Johns. 395), 166. 
 
 V. Milwaukee (10 Wall. 497), 253. 
 
 V. People (6 Johns. 337), 166. 
 Yeates v. Pryor (11 Ark. 58), 201. 
 Yick Wo V. Hopkins (118 U. S. 856), 
 
 100. 
 Yopst, West U. Tel. Co. v. (108 Ind. 
 
 248, 8 L. R A. 234), 291. 
 York, etc. R. Co., Fawoett v. (16 Q. 
 B. 610), 277. 
 
 V. Hudson (16 Beav. 485), 312. 
 
 Young V. Charleston (20 S. C. 116), 260. 
 V. East Ala. Co. (80 Ala. 100), 183. 
 V. Kuhn (71 Tex. 645), 68. 
 V. Macrae (83 L. J. Q. B. 6, 8 Best 
 
 & Sm. 364), 63. 
 V. Miller (3 Hill, 31), 61. 
 V. West. U. Tel. Co. (65 N. Y. 163), 
 
 373. 
 V. West U. Tel. Co. (107 N. C. 
 
 370, 9 L. R. A. 669), 272. 
 
 z. 
 
 Zier V. Hofflin (33 Minn.' 66, 53 Am. 
 
 Eep. 9), 67. 
 Zimmerman v. Hannibal, etc E. Co. 
 
 (71 Mo. 476), 281. 
 
THE ELEMENTS OF TORTS. 
 
 CHAPTER I. 
 
 EIGHTS AND WEONGS AS KNOWN TO THE LAW. 
 
 Preliminary. — Judicial tribunals are chiefly concerned with 
 the protection of rights, with giving redress for wrongs cobi- 
 mitted, and with inflicting punishment on wrong-doers when 
 their acts are found to be criminal. In a primitive state of 
 society, while dealings among the people are simple in their 
 nature, the aid of the courts will seldom be invoked except to 
 give redress for malicious or reckless conduct, and only the 
 facts are likely to be in dispute. But as civilization advances 
 and transactions among the people become more diversified and 
 complex, the judge wiU often have his attention called to in- 
 vasions of special rights and privileges of statutory origin, to 
 wrongs charged in the management of improved methods of 
 travel and transportation and of other public conveniences, to 
 frauds ingenious in method and infinite in variety, and to a 
 great many others which are new in the experience of the peo- 
 ple, because the conditions from which they spring or which 
 furnish the opportunity for their accomplishment are new. In 
 many of these cases the controversy wiU relate to the goveruT 
 ing principle of law rather than the facts. Thus the progress 
 of the people and the increase in the comforts and conveniences 
 of civilization are multiplying the occasions for legal adjudica- 
 tion upon disputed rights or injuries, and rendering legislation 
 needful to provide remedies under new conditions. 
 
 Classification of wrongs. — Wrongs for which individuals 
 may demand legal redress have been classified as, firs% those 
 which consist in a mere breach of contract, and second^ those 
 which arise independent of contract.' The classification is not 
 strictly accurate, since there are many cases in which on the 
 'See English Common Lavr Procedure Acts 1853. 
 
2 EIGHTS AND WEONGS AS KNOWN TO THE LAW. 
 
 same state of facts the injured party may at his option- count 
 upon a breach of contract as his grievance, or complain in such 
 form that the breach of contract is not the gist of the action. 
 These cases make clear the lack of utility and convenience of 
 the classification, and that it may be misleading. And it is, 
 perhaps, more correct to say, as to the second class, that it 
 embraces those wrongs which arise out of conduct which, while 
 it may involve the breach of a contract, is accompained by 
 some other unlawful element.^ Actions for the redress of in- 
 juries falling within the first class are called actions on con- 
 tract, or actions ex contract^,, but the injuries themselves are 
 not commonly spoken of as wrongs, that term being applied 
 more specifically to such other acts or omissions as may give 
 occasion for a suit at law. The more distinct designation of 
 the second class is by the use of the generic term torts, and ac- 
 tions to obtain redress therefor are called actions for torts, or 
 actions ex delicto. 
 
 A tojft, then, is any wrong not consisting in more breach of 
 contract, for which the law undertakes to give to the injured 
 party some appropriate remedy against the wrong-doer.^ Where 
 in subsequent pages the word " wrongs " is made use of, it is to be 
 understood as not embracing breaches of contract except as the 
 context may indicate that intent. 
 
 An act or omission may be wrong in morals or it may be 
 wrong in law. The terms cannot be used interchangeably; for 
 governments do not undertake to give redress by the standard 
 of morality, — so strict a rule being never agreed upon, and quite 
 incapable of enforcement. Legal standards of right and wrong 
 must be fixed by positive human law, and must be definite and 
 plain to the common understanding. 
 
 It is equally true that many things may be wrong inlaw, 
 though a wrong intent may be wholly wanting. A case in 
 which one has acted under an honest mistake regarding his 
 rights may be of this character, and so may one of negligence, 
 where, though the law wiU give redress to the person injured, 
 it can plainly be seen that the party chargeable supposed he 
 was in the exercise of due care.' 
 
 iSee Rich v. New York, etc. R. Co., sttpra; Scammon v. Chicago, 25 
 Co., 87 N. Y. 382. UL 424 
 
 2 See Rich v. New York, etc, R. R. a Neither m intention to injure the 
 
EIGHTS AND WEONGS A3 KNOWN TO THE LAW. 3 
 
 Defining riglits. — A chief business of government will con- 
 sist in the defining of rights and the providing of adequate 
 securities for their enjoyment. From this comes civil liberty. 
 The term " natural liberty " is sometimes made use of as imply- 
 ing that freedom from restraint which exists before any gov- 
 ermnent has imposed its limitations, or as the liberty of an 
 individual to do what he pleases subject only to the law of 
 nature.^ But in no valuable or proper sense can any such liberty 
 exist, for it would be a liberty of perpetual warfare and con- 
 tention ; and the most imperative need of the people would be 
 of a government to bring such liberty under the control of 
 law, and to establish in its stead the civil liberty which the law 
 will protect.^ The maximum benefit of which government is 
 capable is attained when individual rights are clearly and justly 
 defined by impartial laws, which impose on no one any greater 
 restraint than is essential for securing equivalent rights to all 
 persons, and which furnish for the rights of all an adequate 
 and an equal protection.' 
 
 There has at times been much discussion whether for one 
 class of controversies, namely, those which arise between em- 
 ployers of labor and their employees, there should not be some 
 special regulations established which would be to a considerable 
 extent a departure from the general principles above stated ; 
 whether arbitration should not be prescribed for such contro- 
 versies and the arbitrators given powers which, to some extent, 
 would contemplate their changing the existing contracts as to 
 wages or some conditions of the service, or to extend the serv- 
 ice when it seemed just to do so, though the contracts did not 
 preclude either party terminating it at wiU. The propositions 
 looking to this end are not as yet very definite, and it will be 
 sufiicient to say here that a board of arbitration empowered to 
 deal with legal rights and to pass finally upon them will in 
 fact be a court, and subject to the rules limiting jurisdiction 
 which are applicable to other courts ; but if it is to have author- 
 plaintiff nor an intention to do the 1 1 Bl. Com. 135. Compare Bent- 
 act causing the injury is essentiaL ham, Const. Code, v. 1, c 3, sea S,; 
 Judd V. Ballard, 66 Vt. 668. And see Austin, Juris. Lee XII. 
 Vosburg V. Putney, 80 Wis. 533, 14 2 gee Burlamaqui, Nat. and PoL 
 L. R. A. 337; Mercer v. Corbin, 117 Law, voL 3, pt. 1, c. 8. 
 Ind. 450,3 L. E. A. 331; Cate v. Cate, 'See Butchers' Union, etc. Ca v. 
 44 N. H. 211, Crescent City, etc Ca, 111 U. a 75a 
 
F 
 
 4 EIGHTS AND WEONGS AS KNOWN TO THE LAW. 
 
 ity to go further and make awards based on a consideration of 
 what the one party or the other ought in conscience to do, 
 though not by law required, the impossibility of making use 
 of the customary methods of compulsion which are available 
 in the case of judgments must leave their enforcement to a 
 consideration by the parties of their interests respectively, and 
 to such force as may be found in an approving public opinion. 
 
 Public wrongs. — Wrongs to the state which are punished as 
 crimes, and wrongs to municipal corporations or to political di- 
 visions of the state which are of semi-criminal nature and are 
 subject to some kind of penalty, may be individual wrongs also 
 when the personal injury arising therefrom shall be of a pecun- 
 iary nature and something different- to that which is suffered 
 by the people at large. In these cases, in addition to the pun- 
 ishment for the public wrong, the wrong-doer may be made 
 to compensate the individual.' 
 
 Wrongs to aggregate bodies.^ Where a number of persons 
 are associated in a legal right, and are wronged in respect to 
 it, the wrong wiU give only individual rights' of action if it 
 only deprives each individual associate of a right personal to 
 himself; as where the several members of a voluntary associa- 
 tion are prevented from meeting. But where property is 
 owned in common, an injuj-y to the property is an injury to all 
 jointly. The case of a corporation is special ; the corporation 
 is an artificial person, and represents, in seeking redress in its 
 own name, all the stockholders. But a mere voluntary asso- 
 ciation cannot as such sue or be sued; in legal phrase, it is not 
 known to the law. 
 
 Civil liberty. — Civil liberty is to be distinguished from po- 
 litical liberty; the former consisting in that condition in which, 
 rights are established and protected by means of such limita- 
 tions and restraints upon the action of individual members of 
 the political society, and upon the law-making power, as are 
 needed to prevent what would be injurious to other individuals 
 
 J As, for example, where one may may be recovered. Eichardson v. 
 reco-cer damages for an assault. Kelly, 85 lU. 491. A criminal prose- 
 Morgan V. KendaU, 134 Ind. 454, 9 cution does not bar a civil action. 
 L. E. A. 446, and jiofe; Goldsmith V. Austin v. Cars-n'ell, 67 Hun, 579; 
 Joy, 61 Vt. 488, 4 L. E. A. 500; Elt- Heller v. Alvarado, 1 Tex. Civ. App. 
 ringham V. Earhart, 67 Miss. 488. Or 409; People v. Walsen (Colo.), 28 Pac. 
 where the property lost by gambling Eep. 1119. 
 
EIGHTS AND WEONGS AS KNOWN TO THE LAW. 5 
 
 or prejudicial to the general welfare ; ' and the latter being 
 found in an effective participation of the people in the makin^g 
 of the laws. The former may exist when the latter is absent, 
 though it is not likely to be so complete. 
 
 Rights in every country have historical growth. They do 
 not come into existence by a single exercise of legislative 
 power. With us they have always rested in the main upon 
 what we call the common law, and upon principles which by 
 a liberal use of fiction we assume to have always constituted a 
 part of that law. The Magna Charta of King John was a 
 guaranty of old principles rather than a new grant. But these 
 principles now depend very largely on a species of judicial 
 legislation which fronp time to time, as new conditions were 
 found to exist, has endeavored to fit and conform: the old law 
 to them. 
 
 This term " judicial legislation " seems seU-contradiotory, for 
 judicial action is one thing and legislation another, and under 
 our government they belong to different departments; so that 
 judicial legislation would seem to be usurped authority.' But 
 when rightly understood it will appear to be not only proper 
 in itself, but indispensable. In every controversy brought be- 
 fore him the judge must either find an existing rule that gov- 
 erns the case, or he must withhold decision until the legislature 
 can establish one ; and the latter course being intolerable and 
 therefore out of the question, the alternative is the acceptance 
 of the principle that the existing law governs all cases, and that 
 the ruling principle for any existing controversy will be found 
 if sought for. The judge in deciding a case is supposed to have 
 found and applied the principle ; and though it may never have 
 been recognized before, the case furnishes an illustration of it, 
 and it wiU be appHed in analogous cases thereafter.^ But as 
 cases are seldom alike in their facts, and as numerous contro- 
 versies on differing facts are found to be within reach of the 
 same general principle, the principle seems to grow and expand 
 and does actually become more comprehensive under legitimate 
 
 1 See Cummings v. State, 4 WalL Lib. & Self -Gov., ch. Ill, and Austin, 
 
 277; Ex parte Garland, id. 333; In re Jurisp., Lee. VI and XL VII. 
 
 Jacobs, 98 N. Y. 98. Of. the varying i See, as illustrating these remarks, 
 
 definitions by Blackstone, 1 Com. Sheldon v. Sherman, 43 N. Y. 484, 1 
 
 125; Kent, 3 Com. 1; Lieber, Civil Am. Rep. 569. 
 
6 EIGHTS AND WEONGS AS KNOWN TO THE LAW. 
 
 judicial treatment. A principle newly applied is not supposed 
 to be a new principle, but one that from time immemorial has 
 constituted a part of the common law, and has only not been ap- 
 plied before because no occasion arose for its application. The 
 supposition rests upon an accepted fiction, for the principle is 
 called into existence by the decision itself; but by this course 
 the growth of the law goes on gradually and safely, and rights 
 are more quietly and expeditiously, declared, defined and pro- 
 tected than they could be if every new case were to be made a 
 new occasion for the enactment of a formal law. It is only 
 when there seems to be need for a change in what has been a 
 'settled rule of the common law, or for enlarging some remedy 
 the common law had given with defined limits, that the aid of 
 legislation is called for; as in the case of statutes giving re- 
 dress for causing the death of a human being, statutes extend- 
 ing the liability for accidental in juries, and the like. 
 
 The common law is generally said to consist in the estab- 
 lished usages of the people, by which their respective rights are 
 recognized and limited, and to which they are expected to 
 conform in their dealings.^ But as shown above, it embraces 
 the principles which are supposed to underlie the usages, and 
 which justify the judicial development of the law.^ The growth 
 is so steady and harmonious that the habitual obedience of the 
 people is not disturbed as it would be by violent changes. In 
 this_^is found the chief value of a common law, — it is not strange 
 to the people, it harmonizes with their habits of thought and 
 action, and they obey it without stopping to question whether 
 there ought not to be some other way. "We do not need to 
 qualify this statement if we find, as is sometimes actually the 
 fact, that the ^le comes to us from the civil law ; it may come 
 as legitimately from that source as from the usages of the 
 Saxon barbarians.' 
 
 No right without a remedy. — Lord Holt said in the great 
 case of AsKby v. White: * " It is a vain thing to imagine a right 
 
 1 See Cooley's Const. Litn. 23-34 ' See, in illustration of this, Coggs 
 
 8 As to the application o£ the rules v. Bernard, Ld. Raym. 909, 1 Sm. L. 
 
 of the common law in this country, Caa 369; Sheldon v. Sherman, 42 N. 
 
 see Forepaugh v. DeL, L. & W. R. Co., Y. 484, 1 Am. Rep. 569. 
 
 188 Pa. St. 217, 5 L. R. A. 508; Reno, <Lord Raym. Rep. 938, 1 Sm. L. 
 
 etc. "Works v. Stevenson, 20 Nev. 269, Cas. 473. 
 
 4 L. R A. 60. 
 
EIGHTS AND WEONGS AS KNOWN TO THE LAW. 7 
 
 w^ithout a remedy, for want of right and want of remedy are 
 reciprocal." The thought conveyed here is that that alone is 
 a legal right which is capable of being legally defended, and 
 that is no legal right the enjoyment of which the law permits 
 any one with impunity to hinder or prevent.' The maxim is 
 well illustrated by that case. Electors who had been denied 
 the privilege of voting for members of parliament brought suit 
 against the officer who excluded them. It was the first suit of 
 the kind, so there could be no precedent. But a precedent was 
 not important when it was found that the statute gave them 
 the right: having the right the remedy was of course. It 
 would have been otjierwise had the officer been made final 
 judge of their qualifications and decided that they did not pos- 
 sess them, for his decision, even if erroneous, must be conclu- 
 sively deemed correct. 
 
 Cases in which the law forbids the doing of an act under a 
 penalty payable to the state, but provides no compensation to 
 a party injured, may seem exceptions to the maxim, but they 
 are not such in fact ; the statute forbids the act in the public 
 interest, and fails to give an individual right by neglecting to 
 give individual redress. 
 
 Classification of remedies. — Legal remedies are either pre- 
 ventive or compensatory. In a sense, compensatory remedies 
 are preventive also, since they threaten undesirable conse- 
 quences to those who commit wrongs, and in aggravated cases 
 they may sometimes go so far as to give to the party injured ' 
 exemplary damages against the wrong-doer. -But the under- 
 lying thought is that of compensation adequate to the case. 
 In some cases the law allows a mandatory writ, to restrain the 
 commission of a threatened wrong; but as such writs, to be ef- 
 fectual, must issue on summary hearing or on none at all, their 
 general use would be dangerous and is therefore carefully re- 
 stricted. 
 
 1 The maxim is, Ubi jus iM reme- is a volume to which the stjident 
 
 dium. See Bradlaugh v. Gassett, may profitably turn whenever there 
 
 L. R. 13 Q. B. 371. See, also, Blair is a question involving the applica- 
 
 V. Ridgley, 41 Mo. 183. For cases ap- tion of a maxim of the law. 
 plying this maximi, see Hughes' 2 Consult Blair v. Eidgley, 41 Mo. 
 
 Technology of Law, 313 et seq. This 63. 
 
GHAPTEE II. 
 
 GENERAL CLASSIFICATION OF LEGAL EIGHTS. 
 
 Bights in general. — By a legal right is understood some- 
 thing with which the law invests one person^ and in respect to 
 which for his benefit another, and perhaps aU others, are re- 
 quired by law to do or perform acts, or to forbear or abstain 
 from acts.^ Every government, whatever its form, is expected 
 to recognize and protect rights which have for their object: 
 1. Security in person. 2. Security in the acquisition and en- 
 joyment of property. 3. Security in the family relations. Then, 
 under governments not altogether despotic, there will be polit- 
 ical rights which are supposed to be given not specially for the 
 benefit of those possessed of them,, but for the general advan- 
 tage of the political society. 
 
 ■ Personal rights. — Under this head may be included the 
 right to life, the right to immunity from assaults and injuries 
 to the person, the right to the benefit/ of reparatioh, and the 
 right, equally with others similarly circumstanced, to control 
 one's own actions. Political rights may also be classed under 
 the same head. 
 
 The right to life is first and highest of all. In early periods 
 a man was sometimes, for some great crime or contempt of au- 
 thority, put out of the protection of the law, in so far that he 
 might justifiably be killed if he would not surrender peaceably 
 when taken.^ Though no similar state of cJiitlawry is now rec- 
 ognized,' the killing of one who resists lawful arrest and makes 
 use of deadly weapons in doing so, sometimes becomes excus- 
 able. Among the early laws of some people the relatives or 
 friends of one who had been unlawfully slain were given the 
 privilege of private vengeance ; but any such privilege is now 
 agreed to be bai^barous, and as tending to anarchy rather than 
 
 1 Austin, Juris., Lee. XVI. See, 'See Dale Co. v. Gunter, 46 Ala. 
 also, Leo. VL 118. 
 
 2 1 BL Com. 178, 310; See Reeves' 
 Hist. Eng. Law, ch. VIII, sec. 4. 
 
GENERAL CLASSIFICATION OF LEGAL EIGHTS. 9 
 
 to governmental order. The duty to punish unlawful killing 
 is now left exclusively to the political sovereignty. 
 
 The common law made no provision for compensation to 
 parties having an interest in the life of a person when they 
 were deprived of the advantage to be expected therefrom by 
 his life being unlawfully or negligently taken.' The private 
 injury was deemed to be swallowed up or drowned in the 
 public injury ; but this doctrine has not been f uUy accepted 
 in this country, the merger of private wrongs in public "wrongs 
 not being recognized ; and in England it was greatly changed 
 by Lord Campbell's Act,'^ which gave an action for the benefit 
 of the surviving husband or wife, parent or child of the person 
 whose death should be occasioned by the wrongful act, neglect 
 or default of another, and allowed the value of the life to be 
 assessed by way of compensation. In its main features this 
 act has been generally adopted in this country.' 
 
 Personal immunity. — The right to one's person may be 
 said to be a right to complete immunity ; to be let alone. An 
 attempt to commit a battery usually involves an insult, a put- 
 ting in fear, a sudden call upon the energies for proinpt and 
 effectual resistance ; and the law for these reasons makes the 
 assault a wrong even though no actual battery takes place. 
 But a mere threat to commit an injury, though sometimes 
 made criminal, as an assault also is, is not an actionable private 
 wrong.* The maxim applicable here is that mere words do. 
 not constitute an assault.' There may, however, be preventive 
 remedies in some cases of threats ; such as securities to keep 
 the peace, or injunctions, according to the nature of the threat- 
 ened injury. 
 
 Biglit to reputation. — The law gives to every person a right 
 to security in his reputation. Every false charge or insinua- 
 tion which is made in malice and causes damage by its effect 
 upon the standing or reputation of another is actionable. And 
 when action is brought, the burden of proof, after publication 
 is shown, is Ukely to be thrown upon the defendant by certain 
 
 iHiggins V. Butcher, 1 Brownl. *See Hey wood v. Tillson, 75 Me. 
 
 205, Yelv. 89. And see Grosso v. 225. 
 
 Del., L. & "W. R. Co., 50 N. J. L. 317. s And it is immaterial how gross 
 
 39 & 10 Vic, ch. 93. and abusive they may be. Willey v. 
 
 3Seem/m, oh. Vm, Family Rela- Carpenter, 64 Vt. 212; Tatnall v. 
 
 tions. Courtney, 6 Houst. 434. 
 
10 GE5ERAL CLASSIJIGATION OF LEGAL EIGHTS. 
 
 legal presumptions. Thus: First, every man is presnmed to 
 be of good repute untH the contrary is shown ; second, a de- 
 rogatory charge or insinuation made against him is presumed 
 to be false; third, being false, it is presumed to be maliciously 
 made ; fourth, if its natural and legitimate effect is to cause 
 damage, then it is presumed to have done so in this instance. 
 Bat if the case is one in which injury does not necessarily fol- 
 low the charge, the plaintiff will be required to allege and 
 prove it.^ 
 
 A person may sometimes have a bad reputation which is not 
 deserved, and when that is the case he is entitled to overcome 
 it, and is injured when obstacles are interposed, though they 
 consist merely in a repetition of the charges which have made 
 his reputation what it is. And a person with a bad reputation 
 may be wronged if that is said of him which is untrue ; as, for 
 instance, when it is charged that he is a thief, when at the 
 worst he is but a vagabond. But no one is wronged when an 
 undeserved good reputation is destroyed by exposure.' 
 
 But sometimes on grounds of public policy, when the publi- 
 cation of an offensive truth could be of no benefit to any one, 
 but on the contrary would tend in the direction of immorality, 
 disorder or violence, it may become a public offense even when 
 its truth would be a defense to a private action. In respect to 
 such cases it is not infrequently said that " the greater the 
 truth the greater the libel," because the evil results which the 
 criminal law seeks to prevent are in that case more likely to 
 follow. 
 
 Civil rights in general. — These may be summed up as con- 
 sisting in the right to exemption from any restraint that has in 
 view no beneficial purpose, and the right to participate with- 
 out unjust discrimination in all the advantages of organized 
 society. 'If enumeration were to be entered upon, among the 
 first to be named would be religious liberty, which, if com- 
 plete, would consist in a right freely to worship the Supreme 
 Being in the manner indicated by the individual belief and 
 conscience, and to be exempt from exactions in support of the 
 worship of others. Where a state church exists, the religious 
 liberty is to some extent qualified, and is more properly caUed 
 religious toleration. 
 
 iSee Broughton v. McGrew, 39 2 See McPherson v. Daniels, 10 B. 
 ei. Rjp. 673, 5 L. R. A. 4J3. & C. 373. 
 
6ENEEAL CLASSIFICATION OF LEGAL EIGHTS. 11 
 
 Eeligious liberty is always subject to regulation by law to 
 prevent its becoming a public offense. It cannot be allowed 
 to embrace those things which the moral sense or sense of de- 
 cency of the general public condemns, and which therefore can- 
 not be allowed without injury to the public morals. Opinion 
 must be free, religious error the government should not con- 
 cern itself with ; but no body of men have any claim to protec- 
 tion in practices or ceremonies which the community in general 
 look upon as immoral excess or license, and therefore injurious 
 to the public order. The law will deal with them as public 
 protection may seem to require. The exercise of religious 
 liberty must therefore be subject to reasonable regulations. If 
 every man were at liberty to f oUow what he might assert to 
 be the dictates of his conscience in religious matters, organized 
 society would be at the mercy of fanatics and pretenders.^ 
 
 Equality of civil rights. — AH civil rights are supposed to 
 be equal, though in their enjoyment subject to regulations 
 which are not always the same. An infant or a person non 
 compos mentis must bring suits by his guardian, and acquire, 
 control, or dispose of property by like agency. The state com- 
 monly provides for the education of its people ; but discrimina- 
 tions are not regarded as partial or inadmissible which make 
 instruction free to those only who are between certain speci- 
 fied ages. In regulating what is regarded as the free an^ equal 
 use of the highways, particular restraints may be made ap- 
 plicable to certain classes only, when the reasons which render 
 them important do not embrace others. At the common law 
 the rights of married women were much restricted on grounds 
 in this age deemed untenable ; they are greatly enlarged now, 
 though not made exactly the same with those of the husband. 
 Particular discriminations may sometimes operate unjustly 
 though the intent is otherwise. But on the other hand, to recog- 
 nize precisely the same rights and privileges in aU classes would 
 often work not only injustice but inequality ; as, for instance, 
 if infants were allowed complete management of their own 
 affairs.^ 
 
 1 See Reynolds v. United States, 2 gee Crowley v. Christensen, 137 
 93 U. S. 145; Guiteau's Case, 10 Fed. U. S. 86; Louisville, etc. Trust Ca 
 Eep. 161, 175. V. L. & N. R. Co., 93 Ky. 233, 14 L. 
 
 B. A. 579, and note. 
 
12 QENEEA.L CLASSIFICATION OF LEGAL EIGHTS. 
 
 Political rights. — Participation in the government is a 
 privilege conferred as an act of sovereignty on those whose 
 participation it is supposed will be most beneficial to the state.' 
 Discriminations made by law must, therefore, while they con- 
 tinue, be acquiesced in, whatever may be thought of their 
 justice ; as where they are made to depend on the possession 
 of property, or on ability to read and write.^ But those on 
 whom the privilege is conferred have for the time a legal right ; ' 
 a right which for the purposes of defense may be deemed to 
 have a money value, so that an action for the recovery of 
 damages will lie for being deprived of its enjoyment. The 
 same is true of the right to a public oflSce when it has become 
 fixed by legal appointment or election. The privilege of pe- 
 tition and that of the discussion of public affairs are general, 
 and need such protection only as is given by the laws which 
 have in view ^he preservation of public order. 
 
 Family rights. — The husband by the common law is en- 
 titled to the society and services of the wife. A duty is incum- 
 bent on him to comfort, cherish and support , her, but the 
 common law leaves this a duty of imperfect obligation, since 
 it provides no remedy for a failure in its observance.* Stat- 
 utes in some states have given the Avif e an action against any 
 person who shall be the cause of a loss to her in these particu- 
 lars by selling or giving to the husband intoxicating drinks.* 
 And even at the common law his support of her might by in- 
 direction be compelled, since she was supposed to have at her 
 command his credit for the purchase of necessaries when he 
 failed, without cause chargeable to her misconduct, to supply 
 them.* 
 
 The father, or the mother if the father be not living, is en- 
 titled to the custody and services of a child during, the period 
 
 1 Minor v. Happersett, 21 "Wall. 183; nomah Co., 13 Oreg. 317, 57 Am. Rep. 
 Spraginsv. Houghton, 3 111. 377, 896; 20. And see State ex reL Allison 
 State V. Staten, 6 Cold. 233; Friesz- v. Blake (N. J.), 25 L. R A. 480. 
 leben v. ShaUoross (Del), 8 L. E. A. ^2 Kent, 182; Reeve, Dom. ReL 110. 
 337; Coffin v. Thompson, 97 Mich. And see infra, ch. VIII, Family Ee- 
 188, 21 L. R. A. 662; State, Lamar v. lations. 
 
 DiUon, 32 Fla. 545, 22 L. E. A. 124. 6 See infra, ch. VHI. 
 
 2 See Pearson, V. Board of Sup'rs ^See Harrison v. Grady, 13 L. T. 
 (Va.), 21 S. E. Rep. 483. (N. S.) 360. 
 
 3 See White v. Com'rs of Mult- 
 
GENERAL CLASSIFICATION OF LEGAL EIGHTS. 13 
 
 of minority,' subject to a controlling authority in the state,'' 
 to be exercised for the good of the child in the matter of edu- 
 cation and for protection against being employed in unsuitable 
 occupations or places, etc., or in tasks for which his age unfits 
 him.' 
 
 It is the duty of the parent to support his child, but this 
 again is a duty of imperfect obligation, since the child himself 
 is given no remedy for its enforcement. The state provides 
 remedies in its own interest to prevent the child becoming a 
 public charge, and these are commonly not restricted to the 
 period of minority.* 
 
 It is the duty of the parent to protect his child against the 
 wrongful violence of otRers, and he may make use of violence 
 for the purpose as he may in defense of his own person. But 
 the law does not undertake to give to the child a remedy 
 against^ the parent for non-performance of this duty ; he will 
 have as against a wrong-doer the same means of redress as 
 would be available to others.' 
 
 The general authority which the owner of property has to 
 dispose of it by testamentary gift, subject to the legal claims 
 of creditors, and to the dower right of a surviving wife, if 
 there be one, is sometimes limited by statute, on considerations 
 of public policy, for the benefit of those' who, if he died intes- 
 tate, would succeed to interests therein. But such statutes 
 are not enacted in recognition of individual rights. 
 
 The right to enter into the family relation is general, but 
 subject to statutory regulation. The legal idea is that every 
 one has a right to marry who obtains the consent of a person 
 of the opposite sex, having a like right, provided both have the 
 capacity and qualifications prescribed by law, and observe all 
 the legal conditions. 
 
 ' The parent may suri'ender this the welfare of the child. Sheers v. 
 
 right by emancipating his child; Stein, 75 Wis. 44, 5 L. R, A. 781, and 
 
 giving him his time, as it is often note; Green v. Campbell, 35 W. Va. 
 
 called. No formal agreement is req- 608, 34 Cent. L. J. 316, and note. 
 
 uisite. Sae Johnson v. Terry, 34 ' See People v. Ewer, 141 N. Y. 139. 
 
 Conn. S59; Everett v. Sherfey, 1 *See State v. Kerby, 110 N. C. 558; 
 
 Iowa, 356; Jray v. Wheeler, 39 Vt. State v. SutolifEe (E. I.), 35 Atl. Rep. 
 
 514; West Gardiner v. Manchester, 654. 
 
 73 Me. 509; Cloud v. Hamilton, 11 » Rogers v. Smith, 17 Ind. 838, 79 
 
 Humph, lot, 53 Am. Dec. 778. Am. Dec. 48a 
 
 2 Which will regard, first of all, 
 
li GENERAL CLASSIFICATION OF LEGAL EIGHTS. 
 
 Other relations, sucli as that of master and servant,^ which is 
 one of contract; master and apprentice, which also comes from 
 contract, with the state prescribing or consenting to the terms 
 and sometimes itself a party; guardian and ward, which is 
 usually, but not always, of judicial creation, — are not strictly 
 family relations; that term embracing only those formed in 
 marriage and the others which spring therefrom. An adopted 
 child may, under the statutes of some states, if the forms re- 
 quired by them are observed, take the place of a child by birth 
 in the family, with rights of succession to property on the adopt- 
 ing parents' death." The child bom out of matrimony has at 
 the common law no claim whatever npon a parent.' But it is 
 provided by statute in some states that the marriage of the 
 parents, and their recognition of the chUd as their own, shall 
 legitimate him.* 
 
 The family as such has no legal rights. Parents and chil- 
 dren have individual rights as such, but the act which destroys 
 the family or takes away any of its component parts is not in 
 law a family wrong, but only a wrong to individual members 
 of the family. In particular cases we may sometimes think it 
 ought to be otherwise; but it is probably true that in the vast 
 majority of cases the natural impulses and affections have more 
 influence in securing the observance of moral obligations in 
 the family relations than the law could exercise or possess. 
 
 • See infra, ch. XVIIL * See Morgan v. Perry, 51 N. H. 
 
 2 While in some states the adopted 559; Hawbecker v. Hawbecker, 43 
 child has all the rights of a child by Md. 516. Some of the present stat- 
 birth (see iJe Newman, 75 CaL 213, utes on this subject are very liberal 
 7 Am. St Rep. 146; Markover v. in their provisions. See Blythe v. 
 Krauss, 132 Ind. 294, 17 L. E. A. 806; Ayres, 96 CaL 533, 19 L. E. A. 40. 
 Sewall V. Roberts, 115 Mass. 363), in And the provisions of the code are 
 others distinctions are made, es- liberally construed. Re Jessup's Es- 
 pecially regarding inheritance (see tate, 81 CaL 408, 6 L. R A. 594 A 
 Keegan v. Geraghty, 101 IlL 36; child legitimated in one state is le- 
 Helms V. Elliott, 89 Tenn. 446, 10 gitimate, and may inherit lands, in 
 L. E. A. 535). If one receives step- another. Dayton v. Adkisson, 45 
 children into his family, they are, N. J. Eq. 603, 4 L. E. A. 488; Miller 
 while they remain there, in the po- v. Miller, 91 N. Y. 330; Van Voorhis 
 sition of children in so far that they v. BrintnaU, 86 N. Y. 18, 40 Am. 
 cannot claim compensation for serv- Eep. 505; Stoltz v. Deering,'113 IlL 
 ices nor be required to pay for sup- 834; Scott v. Key, 11 La. Ann. 332. 
 port. Smith v. Rogers, 34 Kan. 140, But see Lingen v. Lingen, 45 Ala. 
 86 Am. Rep. 354 410; Smith v. Derr, 34 Pa. St 136, 75 
 
 'Simmons v. Bull, 31 Ala. 601, S6 Aul Dea 041. 
 Am. Dec. 257. 
 
GENERAL CLASSIFICATION OF LEGAL EIGHTS. 15 
 
 Taking away rights. — All the rights here enumerated are 
 subject to be taken away by an act of sovereignty accomplished 
 under legal forms. This is sometimes done by way of punish- 
 ment ; and sometimes, in doing justice to others, moral obliga- 
 tions are varied in their demands or methods of performance, 
 if not defeated altogether. An illustration is seen in the effect 
 of a divorce upon the relations of parents to their children. 
 Rights spoken of as statutory may be taken away by statute. 
 One who commits an assault upon another, to a certain extent 
 puts himself out of the protection of the law, for the assaulted 
 party may defend himself with whatever degree of violence 
 may seem necessary.* And whoever engages in an illegal act, 
 and thereby exposes hijpself to injury, may be said to waive his 
 right to redress therefor. A person cannot make his own ille- 
 gal action the foundation for a legal right : if he invites what 
 comes upon him he must accept it.^ 
 
 1 Woolsey, Pol. Science, § 18. And * Broom, Legal Maxims, 571. 
 see infra, ch. VL 
 
CHAPTEE ni. 
 THE REMEDIES FOR CIVIL INJURIES. 
 
 It is a legal' presumption that every one subject to tlie law 
 win obey its requirements and respect the rights of others. The 
 state does not therefore, in general, give to its people preventive 
 remedies in anticipation of positive wrongs of a civil nature : 
 they are given in a few cases only in which the injury result- 
 ing from a wrong might be incapable of adequate redress after 
 its commission. Jurisdiction for this purpose is in the courts 
 of equity, but public policy requires that it be carefuUy re- 
 stricted to prevent abuse. 
 
 Redress by a pai-ty's own act. — In a few cases a party is 
 allowed to redress his own wrong without an appeal to the 
 law. Where by the act or wrongful neglect of another a nui- 
 sance exists to his prejudice, whether it injures him alone or is 
 one that is a nuisan,ce to the public generally, but in some 
 peculiar manner injurious to him, he may of his 0"\vn volition 
 proceed to abate or remove it.' The blocking or encroaching 
 upon a highway is a public nuisance,^ and the public authorities 
 should be prompt in abating it ; but one who has occasion to 
 make use of the way need not await their action, but may him- 
 self lawfully remove that in which the nuisance consists.' But 
 if he seeks compensation for the personal wrong he must resort 
 to suit at law. 
 
 The right to abate should be so exercised as not to cause a 
 breach of the public peace ; * and when this is impracticable-the 
 law should be appealed to. In general, before there is a resort 
 to force, the party responsible for the nuisance should be noti- 
 fied and requested to remove it ; but in strictness this is not 
 necessary when the facts are such that he must be deemed to 
 have knowledge of its existence, and it is not due to mere 
 
 ' 1 Pierce v. Dart, 7 Cow. 609; State 'Lincoln v. Chadbourne, 53 Me. 
 
 V. Moffett, 1 Greene (Iowa), 247. 197; Reed v. Cheney, 111 Ind. 887. 
 
 2 See State v. Berdetta, 73 Ind. 185, See infra, cli. XIX, Nuisances. 
 
 188. * Baldwin v. Smith, 83 IlL 163. 
 
THE EEMEDIES FQE CIVIL INJUEIES. 17 
 
 neglect under circumstances which furnish grounds of excuse.' 
 And in any case of great urgency a failure to give notice may 
 be justifiable.'^ In abating a nuisance destruction of property 
 must not be carried beyond the necessity : for any excess the 
 -abator wiU. be liable.' A building is not to be destroyed be- 
 cause of its being improperly occupied, the nuisance being in 
 the occupancy and not in the building itself.* 
 
 Self-defense, or defense of one standing to the party in the 
 relation of husband or wife, parent or child, guardian or ward, 
 master or servant, is also a legal right, but must be carefully 
 restricted to the necessity. Defense of property may also be 
 made under the like restriction. ■. 
 
 One from whom pergonal property is without right taken or 
 •detained, or who is deprived of the custody of a person law- 
 fully in his charge, may by his own act have recaption or re- 
 prisal,' but must exercise the right in strict subordination to 
 the public peace.* If the party in possession obtained it by 
 wrongful act of either himself or another, or if a lawful right 
 in himself has by law been terminated, entry upon his premises 
 by the party now entitled for the purpose of enforcing his own 
 right, if not forbidden or restricted, would be justifiable ; though 
 if one leave his property upon the land of another without per- 
 mission, he ^vill be a trespasser if he enters to retake it. If a 
 wrong-doer shall take the property of another and so mix it 
 with his own that separation shall be impracticable, the person 
 whose property is thus commingled may at his option take the 
 whole ' or abandon his own and sue for its value. But this 
 forfeiture of property by the wrong-doer, which would be in 
 the nature of a penalty, will not be recognized if what is thus 
 commingled is so far of the same general nature that justice 
 can be done by dividing it between the parties according to 
 
 1 Earl of Lonsdale v. Nelson, 2 B. temporarily taken out of his sight. 
 & C. 303. State y. Dooley, 121 Mo. 591. 
 
 2 Penruddock's Case, 5 Rep. 101. « 3 Cooley's Black. 4; Sterling v. 
 SBrightman t. Bristol, 65 Me. 436. Warden, 51 N. H. 317, 13 Am. Rep. 
 4 Welch V. StoweU, 3 Doug. (Mich.) 80. 
 
 333; MiUer T. Burch, 33 Tex. 308, 5 'But the rule will not apply 
 
 Am. Rep. 343. unless the intermingling is with 
 
 s Though the property has been improper rHotive. Claflin v. Cont. 
 
 Jersey Works, 85 Ga. 37. 
 
 2 
 
18 THE EEMEDIES FOB CJITIL HTJTJEIES. 
 
 their respective proportions.* The law does not favor penalties- 
 by way of giving redress for civil injuries. 
 
 If one shall wrongfully take the property of another, and by 
 expending labor or money upon it shall convert it into some- 
 thing of greater value,^ the original owner, if he can still dis- 
 tinguish his property, shall be deemedto have acquired a right, 
 to it in its improved condition^ and this is called a right by 
 accession. But if the taking was by mistake, or otherwise in 
 good faith, or if it is impossible to reclaim the property with- 
 out inflicting injury out of proportion to its value, as where a 
 board or stone is buUt into a house, the owner will be left ta 
 his action for damages.' 
 
 If one is wrongfully in possession of the real estate of an- 
 other, the latter, if he can do so peaceably, may re-enter and 
 exclude the wrong-doer therefrom. The principle applies even 
 when the wrong-doer had liawf ul possession originally, if th& 
 right has terminated.* 
 
 If the domestic animals of one person stray upon the lands 
 of another, thereby causing him damage, the party injured 
 may restrain and hold them for the purposes of redress. But 
 the animals must be taken while actually trespassing,' and re- 
 dress is obtained by impounding them and retaining them in 
 custody until satisfaction is made. This right, though given 
 by the common law, is now commonly regulated by statute,*' 
 and enforcement must be made accordingly.^ Statutory pro- 
 visions for the fencing of lands by the owners may also affect 
 it, and even under some circumstances take it away altogether.* 
 A party entitled to distrain may at his option bring suit for 
 damages instead. 
 
 1 Starke v. Paine, 85 Wis. 633; <See Steams v. Sampson, 59 Me. 
 Reid V. King, 89 Ky. 388; Reiss v. 568, 8 Am. Rep. 442; AUen v. Keily,. 
 Hanchett, 141 ILL 419. This is so 17 R. I. 781, 16 L. R. A. 798. 
 
 even though the intermixing was SBuist v. MoCombe, 8 Ont. App. 
 
 fraudulent. Claflin v. Beaver, 55 598. 
 
 Fed. Rep. 576. 6See Bulpit v. Matthews, 145 IlL 
 
 2 As where trees have been con- 345, 23 L. R. A. 55. 
 
 verted into shingles, or into rail- 7 Jones v. Dashner, 89 Mich. 246; 
 
 road ties. See Church v. Lee, 5 Irwin v. Mattox, 138 Pa. St. 466. 
 
 Johns. 348; Strubbee v. Trustees, ^gee LeeCa v.Tarbrough, 85 Ala> 
 
 78 Ky. 481. 590; Lazarus v. Phelps, 153 U. S. 81. 
 
 3 See Baker v. Mersoh, 39 Neb. 227. 
 
THE KEMEDIES FOE CIVIL INJUEIES. 19 
 
 Distress of goods might at the commoa law be made to com- 
 pel the payment of rent, and it might extend even to property 
 of third persons in the tenant's possession with the owner's 
 permission, provided they were not there in the way of trade, 
 as articles left with a mechanic for repair would be.' But this 
 right of distress is very generally taken away by statute, or 
 greatly restricted to prevent oppression.* 
 
 Nature of redress by law. — Passing to the cases in which 
 resort must be had to the law for redress, it will be found that 
 though possession of property wrongfully taken may be spe- 
 cifically recovered where this is found to be practicable, the 
 chief remedy given by the law for a wrong is an award of 
 money estimated as an equivalent for the damage suffered. 
 
 How one becomes a wrong-doer. — One may become liable 
 in an action as for tort either — 
 
 1. By actually doing to the prejudice of another something, 
 he has no legal right to do. 
 
 2. By doing something he may rightfully do, but wrongfully 
 or negligently doing it by such means, or at such tim^, or in such 
 manner, that another is injured. 
 
 3. By neglecting to do something which he ought, ;to do 
 whereby another suffers an injury. 
 
 The active wrong may be done by the party in person or by 
 some other person for whose conduct generally or under' the 
 particular circumstances he is responsible. One is always re- 
 sponsible for conduct which he counsels, advises or directs. 
 The husband is civilly responsible for the conduct of his wife ; 
 and though they must be joined in a suit, a judgment, if one is 
 recovered, may be collected from him. The master is liable 
 for wrongs negligently committed by those to whom he has 
 intrusted his business, while they are engaged in doing it, and 
 for such frauds and deceits as are committed in the service 
 with his actual or presumed authority. The plaintiff in a suit 
 may be liable for false arrest, and so may all concerned in it, 
 including the magistrate,' if the writ was fatally defective. 
 
 1 See Hessel V.Johnson, 139 Pa. St. Howdyshell v. Gary, 21 111. App. 
 
 173, 5 L. E. A. 851; Brown v. Stack- 288; Dawson v. Watson, 6 Houst. 
 
 house, 155 Pa. St. 583. 30. 
 
 ^BischoflE V. Trenholm, 36 S. C. 75; 
 
20 ' THE KEMEDIES FOK CIVIL INJ0EIES. 
 
 Bat any degree of preparation for a tort cannot of itself give a 
 right of action.^ 
 
 Elements of a tort.— To constitute a tort there must be 
 something wrongful with damage as a consequence. But the 
 damage in many cases is implied or presumed, and perhaps 
 would not be susceptible of proof. A libel might illustrate 
 this: One of a peculiarly atrocious nature might damage the 
 party publishing it without harming the intended victim. In 
 many trespasses on land there is no' real injury, but damages 
 win be assessed with some regard to the motive in committing 
 the unlawful act. The owner's right has been invaded, and the 
 responsibility to respond therefor in pecuniary damages is 
 what he must rely upon for protection against like wrongs in 
 the future. The maxim de ininimis non civrat lex, which is 
 sometimes applied when one demands that which is insufficient 
 for the mere purposes of vexation, is out of place when the 
 invasion of a substantial right is in question:^ otherwise the 
 right itself might in some cases be destroyed with impunity, 
 since not only would persons of evil disposition and persons 
 merely careless of the rights of others be Ukely, in their own 
 action, to disregard it when proof of damage was supposed to 
 be unattainable, but reiterated invasions might in time raise a 
 presumption of an adverse right.* 
 
 But when that which is done is not in itself wrongful, no 
 tort is made out until actual damage is shown. It is the actual 
 damage that in such cases makes the act done, or the neglect 
 to act, a thing amiss. And the damage must be a proximate 
 sequence; for the law refers the injury to the immediate, and 
 not to the remote, cause.* If, therefore, an injury has resulted 
 in consequence of a certain wrongful act or omission, but only 
 through or by means of some intervening cause, from which 
 the injury followed as a direct and immediate consequence, the 
 law win refer the damages to the last or proximate cause and 
 decline any attempt to trace it to that which was more remote. 
 To recapitulate briefly : 
 
 1. In the case of any distinct legal wrong which in itself 
 constitutes an invasion of the right of another, the law pre- 
 
 1 See Fanning v. Chace, 17 E. L 388, » Eochdale Canal Co. v. King, 14 
 13 L. R. A. 184. Q. B. 134. 
 
 2 See Andrews' Stephen's PI. 30. * Broom's Maxims, 165. 
 
THE EEMEDIES FOK CIVIL INJUEIES. 21 
 
 sumes that some damage follows as a natural, necessary and 
 proximate result, and the wrong itself fixes a right of action. 
 
 2. Where an act or omission complained of is not in itself a 
 distinct wrong, and can only become such to any particular in- 
 dividual through some injurious consequences resulting there- 
 from, this consequence must not only be shown, but it must be 
 so connected by averment and evidence with the act or omis- 
 sion as to appear to have resulted therefrom according to the 
 ordinary course of events and as a proximate result of a suffi- 
 cient cause. 
 
 3. If the origifial act was wrongful, and would naturally, 
 according to the ordinary course of events, prove injurious to 
 some other person or persons, and does actually result in injury 
 through the intervention of other causes which are not wrong- 
 ful, the injury shall be referred to the wrongful cause, passing 
 by those which are innocent. But if the wrongful act only 
 becomes injurious in consequence of the intervention of some 
 distinct wrongful act or omission by another, the injury shall 
 be imputed to the last wrong as the proximate cause,, and not 
 to that which was more remote. 
 
 The leading case in illustration is Scott v. Shepherd} De- 
 fendant threw a lighted squib into a crowd of people, one after 
 another of whom, in self -protection, threw it f roni him until it 
 exploded in the plaintiff's face and blinded him. Here was but 
 a single wrong and the defendant the only wrong-doer. Like 
 to this is the case of the wholesale dealer who carelessly labels 
 a poison with the name of a harmless medicine; it passes 
 through the hands of retail dealers until it reaches one who, 
 relying upon the label, takes it and is injured. Here also is a 
 single wrong and a single wrong-doer.^ If one negligently 
 starts a fire which spreads from building to building, the in- 
 jury to the last of these is attributable to the original act and 
 not considered as resultiag from the burning of the building 
 nearest it. The wrongful fire was, as a cause, from first to last, 
 a unity.' But when a master discharges a servant in violation 
 of his own contract because the servant is slandered by a third 
 person, the consequent injury is to be imputed to the wrongful 
 
 13 Wils. 403, 4 Sm. L. 0. 796. 'This is the weight of authority, 
 
 2 Thomas v. Winchester, 6 N, Y. though oases in New York and Penn- 
 
 397. sylvania based on considerations 
 
22 THE EEMEDIES FOE CIVIL INJUEIES. 
 
 ( 
 
 discharge and not to the slander which remotely instigated or 
 caused it.^ If an injury results through the intervention of a 
 secondary cause, a question of fact is presented, whether the 
 original wrong-doer should have anticipated it as likely to fol- 
 low as a consequence of his own action; as where one descends 
 with a balloon upon private grounds and is followed by a crowd 
 of people, to the daiuage of crops.^ 
 
 4. If damage results directly from concurrent wrongful acts 
 or neglects of two persons, each of these acts may be counted 
 on as the wrongful cause, and the parties held responsible, 
 either jointly or severally, for the injury; as where two per- 
 sons, though acting separately, so block up a street that one is 
 injured in trying to pass. But when acts or neglects are not 
 concurrent in time, and the party last in fault was chargeable 
 with some duty to the other, which if performed would have 
 prevented the injury, the neglect to perform it will be regarded 
 as the proximate cause and the law will look no farther.' 
 
 Damnum absque injuria. — Where damage results from 
 pure accident, and without fault on the part of the person to 
 whom it is attributable, no action will lie, for though there is 
 damage there is no concurriag wrong. The same is true where, 
 through the lawful and proper exercise of one's own rights, a 
 damage results to another, even though he might have antici- 
 pated the result and avoided it. And the absence of a com- 
 mendable motive is in a legal sense unimportant.* 
 
 Crimes and torts distinguished. — Acts or omissions are 
 punished as public offenses either because their inherent qual- 
 ities and necessary tendencies make them prejudicial to organ- 
 ized society, or because it is believed that the evils likely to 
 flow from them will be so serious that the general good will 
 be subserved by forbidding them. The punishments imposed 
 are prescribed on public grounds.' It is not to be understood, 
 however, that when conduct is not by the law made a public 
 
 which hardly seem to have logical ' Bartlett v. Boston Gaslight Co., 
 
 force are the other way. See Ryan 117 Mass. 533. 
 
 V. N. Y. Cent. R. R. Co., 35 N. Y. 210; * Stevenson v. Newnham, 13 C. B. 
 
 Penn. R. R. Co. v. Kerr, 62 Pa. St. 353. 285. See Chasemore v. Richards, 7 
 
 1 Vicars v. Wilcocks, 8 East, 1. H. L. Cas. 349; Hughes, Tech. of 
 
 2 GuiUe V. Swan, 19 Johns. 381. Law, 34 
 
 See Fairbanks v. Kerr, 70 Pa. St. » 4 Cooley's Black. 5. 
 
THE EEMEDIES FOE CIVIL INJTJEIES. 23 
 
 offense, the political society is iadifferent to it; if it wrongs a 
 single individual the law will in some proper form take notice 
 of it. But if the injurious consequences are limited to one or 
 more persons, it is sufficient in general to provide for them the 
 proper means for individual redress, and leave them to demand 
 it or not at their option. And this means of redress is de- 
 mandable even in case of public offenses where individuals 
 suffer special and particular injury therefrom, as in the case of 
 a criminal battery, or the keeping of a savage beast with such 
 criminal negligence that he attacks and rends one passing along 
 the street. There is no clear and definite distinction between 
 a public offense and a civil injury, except that which is made 
 by the law itself in the^ steps to be taken against the party re- 
 sponsible for it. These, in the case of a public offense, are to 
 be taken bythe state itself or its proper representative, and 
 in the case of a civil injury are left to the option of the party 
 wronged, who may, if he be so inclined, pardon or overlook 
 the wrong he has suffered. But when the same act or omis- 
 sion constitutes both a private injury and a public offense, the 
 refusal or neglect to demand redress for the one wiU not pre- 
 clude a prosecution for the^ other. The individual cannot par- 
 don the wrong in so far as the law has madeprovision for 
 •dealing with it as a pubhc injury. 
 
 In the case of a pubhc offense the most common ingredient 
 is an evil intent, but there are many cases in which gross reck- 
 lessness or negligence may be the equivalent;^ as where one 
 injures the person of another while indulging in rough and dan- 
 gerous sports from which such a consequence might reasonably 
 have been anticipated, or shoots recklessly into a crowd, or 
 drives a horse furiously through a crowded thoroughfare, and 
 in either case inflicts an injury which if intended would be 
 dealt with as a crime.^ And an evil motive may not be a nec- 
 essary element in a public offense if the party responsible was 
 at the time acting unlawfully ; as, if one while committing a 
 trespass should accidentally kill the person trespassed upon,' 
 or one having the custody of a dependent person and charge- 
 able with the duty of protection against dangerous exposure, 
 
 1 Cin., I., St. L. & C. R. Co. v. Cooper, 2 Vosburg v. Putney, 80 Wis. 523, 
 130 Ind. 469, 6 L. E. A. 241. 14 L. R. A. 227. 
 
 3 See Flinn v. State, 24 Ind. 286. 
 
24 THE KEMEDIES FOE CIVIL INJURIES. 
 
 should neglect that duty to a degree that death in consequenc& 
 should have been expected to result, as in fact it did, in either 
 case there vfould be criminal manslaughter. But the mere 
 failure to observe ordinary care will not in general be pun- 
 ished as a crime even though serious injury results: the negli- 
 gence must be so gross in its nature as to be equivalent to reck- 
 lessness. 
 
 In England, vfhen on the same state of facts a wrong-^oer 
 ATould be crimiiially responsible as for a felony, and also liable 
 as for a tort to a person specially injured, the latter is expected 
 to institute prosecution for the crime, and the private remedy 
 is suspended until public justice is satisfied.^ But that rule 
 does not prevail in this country ; either the private suit or the 
 pubKo proseoutiop. may be first instituted, or both may be 
 begun and carried on simultaneously. 
 
 In the case of offenses of a particularly atrocious character 
 there may be injuries to individuals for which redress as for a 
 civil wrong will not be given, because they are of the sara& 
 nature as those suffered by the community at large though 
 greater in degree. Thus a burglary may be such in its circum- 
 stances as to beget a feeling of insecurity in a whole neighbor- 
 hood atid subject all the people to the expense of unusual pre- 
 cautions, but only the immediate sufferer from the crime could 
 maintain a personal action. A candidate for a public office 
 might lose his election by an elector being prevented by crim- 
 inal means from depositing his ballot, but the elector alone 
 would be entitled to maintain a private action ; the injury ta 
 the candidate would be part only of that suffered by the whole 
 organized society. But it is no objection to private redress in 
 the case of pubho wrongs that many may be injured by th& 
 same criminal act or omission, provided the injury to each is 
 distinct and individual; the test is not the number injured but 
 the special and personal character of the injury. The case of 
 obstruction to a pubho highway may be an illustration; it is a 
 public offense for which individual actions wiU not in gen- 
 eral lie, but they may nevertheless be maintained by all such 
 as have occasion to make use of the way and are prevented 
 
 lit would seem from remarks of favor. See Midland Ins. Co. v. Smithy 
 the court in some late cases that L. R. 6 Q. B. D. 561 ; Ex parte Ball^ 
 this doctrine is not looked upon with L. R. 10 Ch. D. 667. 
 
THE EEMEDIES FOE CTVTL HfJUEIES. 25 
 
 from doing so, or obstructed to an extent that results in direct 
 indi^ddual injury.^ 
 
 Contracts and torts. — The rule is general that where con- 
 tract relations exist the parties assume towards each other no 
 duties whatever but those which the contract imposes, and if 
 there shall be a breach of duty it will consist in a mere breach 
 of contract. ' But there are exceptional cases. The contract 
 may have been brought about by such falsehood and fraud as 
 would warrant the defrauded party in repudiating it ; and in 
 such a case, if the entering into the contract could preclude a 
 suit for the tort of Avhich the deceived party had been made' 
 the victim, the wrong-doer would in law gain an advantage 
 from his own misoondflct. The answer to his claim that the 
 case is one of contract is that the tort is indeed connected with 
 the contract, but only as it enabled the wrong-doer to bring the 
 party Avronged into it. Then in certain relations duties are 
 imposed a breach of which is regarded as a tort, though the 
 relations themselves are formed by contract, and the contract 
 may cover the same ground. Thus the generalduties of a com- 
 mon carrier are prescribed by law, and a failure in perform- 
 ance is a tort, though there is in every case of the delivery of 
 property for carriers an express or implied contract covering 
 the terms. The case is similar as between th'e innkeeper and 
 his guest, as regards the goods the one intrusts to the other 
 for keeping, and between the professional man and his patient 
 or his client, as to whom the relation itself imposes the duty 
 of integrity and fidelity in respect to all dealings which come 
 within it. A failure in these particulars is in itself a distinct 
 wrong, and the right to compensation for the tortious injury 
 is neither dependent upon the existence of a specific contract 
 nor subject to be defeated by proof that such a contract exists. 
 So an agent employed to make a collection, though the matter 
 of employment is one of contract, is guilty of a tortious wrong 
 if he neglects, after collection, to pay over.^ 
 
 In some cases a party may treat that which is purely a tort 
 as having created a contract between himself and the wrongs 
 doer, and he may then waive the tort and pursue his remedy 
 as for a breach of the supposed contract. Thus, if one with- 
 
 1 Henly v. Lyme Regis, 5 Bing. 91, And^^ as illustrating these proposi- 
 a CI. & F. 331. tiono, see infra, ch. XX. 
 
 2 See Andrews' Steph. PL, ch. II. 
 
26 THE BEMEDIES FOE CIVIL INJUEIES. 
 
 out authority sell the property of another, the owner, instead 
 of reclaiming the property or suing the wrong-doer in some 
 form of action for the tort, may sue for the purchase-price re- 
 -ceived, or for the value, as on sale made by himself to the 
 wrong-doer. In either case he makes valid the sale which 
 originally was tortious, waiving the tort in doing so. Of this 
 the wrong-doer cannot complain, since it cannot possibly place 
 him in any worse position than that in which he has placed 
 himself. In any case in which one has come into possession of 
 money belonging to another, and neglects or refuses to pay 
 over, the contract relation may in like manner be assumed and 
 relied upon in seeking redress. There are cases holding that 
 where one's property is wrongfully taken but not converted 
 into money, the tort cannot be waived and assumpsit brought 
 for the value ; though it would seem that if the wrong-doer has 
 exchanged it for other property, or in any manner converted 
 it to his own use, the ruling should be otherwise ; and so other 
 well-considered cases have held. There are naked wrongs, how- 
 ever, in which the fiction of contract could not be indulged, 
 since it would be a manifest absurdity; the case of a battery, 
 for example, and the case of one turning his beasts into the 
 growing crops of another to trample and destroy them, with- 
 out himself deriving benefit therefrom. 
 
 Torts by relation. — The right of action for a tort accrues 
 when the injury is suffered, and belongs to the party then en- 
 titled. But there are cases in which one may sue though his 
 right did not accrue until after the wrong was done, as in the 
 case of a wrongful intermeddling with the goods of a trader 
 intermediate an act of bankruptcy and the appointment of an 
 assignee; here the assignee may sue, his title relating back 
 and covering the intermediate period.^ So one who purchases 
 land on execation subject to a right of redemption may, after 
 his title is perfected, sue for an act of waste committed upon 
 it after the purchase but before the conveyance. The title of 
 the personal representative of a deceased party relates back in 
 the same way for the purposes of redress for legal wrongs suf- 
 fered by the decedent.* 
 
 1 In England, in such a case, trover 9Bing.471. But not trespass. Smith 
 may be brought. Balme v. Hutton, v. Milles, 1 T. E. 475. 
 
 2 See Brackett v. Hoitt. 20 N. H. 357. 
 
CHAPTER IV. 
 
 LEGAL RESPONSIBILITY FOR TORTS. 
 
 The rules of legal responsibility upoii contracts differ greatly 
 from those which apply in. the case of torts. A contract is not 
 of binding force unless the party entering iuto it has the legal 
 capacity to contract ; he must be of the proper legal age and 
 of sound miud ; the law requires this as being needful for the 
 protection of those wlio presumably are lacking in the ability 
 and capacity fully to protect themselves. And in its nature 
 the contract must not be immoral or otherwise opposed to pub- 
 lic policy. If a contract is not of binding force there can be 
 no liability for breaking or repudiating it. 
 
 Criminal responsibility also differs greatly from the respon- 
 sibility for torts. Before reaching the age of seven a child is 
 supposed to be incapable of a criminal intent ; between the age 
 of seven and fourteen the case is open to proof of actual 
 capacity and actual malice. Idiots and insane persons have 
 no criminal capacity ; and though they may be deprived of 
 their liberty for the protection of themselves and of the public, 
 acts which in the case of competent persons would be crimes 
 are in their cases not punished. Criminal punishments are 
 awarded from a standpoint of public interest, for example and 
 for warning; to punish the incompetent would be to give ex- 
 amples of public brutality. 
 
 The question of responsibility for civil injuries is to be con- 
 sidered from a dififerent standpoint. A right has been invaded 
 and injury has resulted from the invasion. The party wronged 
 should in justice be compensated for this injury ; and if the 
 party who inflicts the injury is wanting in mental capacity, 
 the reason for compensation is still present, though it cannot 
 go to the extent, as it may in some other cases, of calling for 
 •exemplary damages because of the evil intent with which the 
 wrong was done. Strict justice demands adequate compensa- 
 tion, but it calls for nothing more. The injury done is in the 
 iiature of a misfortune rather than of a fault; but the conse- 
 
28 LEGAL EESPONSIBILITT FOE TOETS. 
 
 quences fall more justly upon the estate of the incompetent 
 person than upon any third person. And this is equally true 
 where the injury suffered is inflicted by a young child. 
 
 The rule of liabiUty in these cases is settled on grounds of 
 general public policy, and among the considerations which have 
 influenced its establishment is this : that the incompetent or im- 
 mature person, if possessed of means which wiH enable him to 
 make good the injury inflicted by him, wOl comnjonly be so 
 related to others that they will be expected, not merely on 
 grounds of moral obligation but of personal interest, to take 
 the necessary steps for placing and keeping him under proper 
 guardianship or control. In the case of a child under the age 
 of majority, the pa,rental authority is supposed to be ample for 
 the purpose ; and in the case of incompetents, the right of con- 
 trol is at first in the members of the immediate family, and 
 when the necessity for the legal appointment of a guardian 
 becomes obvious, they will be expected to take steps to secure 
 the appointment. But another consideration is not without 
 force. The distinction between insanity and the cunning of 
 malice is not always sufficiently clear for ready detection ; it is 
 believed that persons sometimes escape criminal punishment 
 for lawless conduct who are abnormal only in the violence of 
 ungovernable passion and depravity, and who calculated upon 
 protection under the false plea of insanity when they gave to 
 their passions a free rein. And on the other hand> juries are 
 urged on and impelled by public excitement and clamor to find 
 in the freaks of delusion the evidences of criminal intent and 
 depravity to convict, and give over to punishment, those who 
 are deserving of their compassion ohly. The evils attendant 
 upon the trials of such an issue are always serious, and it seems 
 the better rule to exclude them in trials for civil wrongs by 
 limiting the injury to the question of just compensation. 
 
 Mental incompetency may, nevertheless, in some cases, not 
 only have an important bearing, but even go to the very founda- 
 tion of the action itself. This will be the case whenever malice 
 is an element essential to injury, so that in its absence there is 
 in law no wrong. Personal abuse by an insane person may 
 furnish an illustration; there can be no legal malice in one 
 who is incapable of harboring an intent ; moreover, the ravings 
 of a madman no one would heed unless for the purposes of re- 
 
LEGAL EESPONSIBILITT FOE TOETS. 29 
 
 •straint, so that their object could not be injured by them. But 
 the question of capacity may have importance in other cases if 
 •exemplary damages are claimed ; these are to be excluded when 
 the impossibility of an evil intent is made apparent. 
 
 Torts by Infants. — As to infants the rule is commonly said 
 to be that an infant is responsible as any other person would 
 be on the same facts.^ He is liable for a tort committed by 
 another person through his procurement.^ The infancy is un- 
 important except as it may bear upon the question of damages. 
 But there are exceptiohs. If malice is a necessary ingredient 
 in the wrong, he may or may not be liable, according as his 
 ■age and capacity may justify imputing malice to him or pre- 
 clude the idea of his 'indulging in it. It might be absurd to 
 impute to a child five years of age malice in repeating a slan- 
 derous story, and equally absurd to excuse a youth of t^venty, 
 who, from evident malice or in mere recklessness, should give 
 it further currency. No precise age can be named as that to 
 which legal responsibility for torts should attach ; the infant ' 
 should be held responsible if he has arrived at an age and a 
 maturity of mind which would render him morally responsible 
 for the consequences of intentional action. But he is never to 
 be held liable for any tort involving an element which in his 
 particular case must be wanting. 
 
 The fact of infancy may also be of much importance when 
 want of care is imputed to him as the cause of injury to another. 
 One who has dealings v^ith a child under circumstances calling 
 for special vigilance" or care may, in his own action, be justly 
 chargeable with a higher degree of caution and circumspection 
 than when dealing with a person of full age; that may be reck- 
 lessness in a man which would be ordinary playfulness or par- 
 ■donable inattention in a child ; and it is but reasonable that on© 
 whose interests may suffer from the negligence of a child should 
 shape his own conduct with that regard to this general fact 
 which would be expected from a sensible and prudent person. 
 
 It is no defense for an infant that the wrongful act was com- 
 mitted on the advice or command of another, even though that 
 other be his parent or guardian.' And his infancy does not 
 
 1 Infancy is no defense to an action 2 Sikes v. Johnson, 16 Mass. 389. 
 for seduction. Fry v. Leslie, 87 Va. 'Soott v. Watson, 46 Me. 363, 74 
 269. Am. Dec. 457. 
 
30 LEGAL KESPONSIBILITT FOE TOETS. 
 
 excuse him from any duty incumbent on a proprietor of land 
 to so care for it as to prevent its becoming the means of dimin- 
 ishing or destroying such use of the land of adjoining proprie- 
 tors as they by law are entitled to.. 
 
 If, however, the wrong imputed to an infant grows out of 
 contract relations, and the real injury consists in the non-per- 
 formance of a contract into which the party wronged has 
 entered with the infant, the law wiU not permit the formei; to 
 enforce the contract indirectly by counting on the infant's- 
 neglect to perform it or omission of duty under it as a tort, 
 though on the same state of facts he wouM be entitled to- 
 recover against a person of f uU age ; for if this could be al- 
 lowed the infant would be deprived to some extent of the 
 shield of protection which, in matters of contract, the law has^ 
 placed before him. An Ulustratioh is seen in the case of prop- 
 erty bailed to an infant, and which he is charged with having^ 
 improperly used; the real grievance is the failure to observe- 
 the terms of the contract, and for a breach of this infancy is a 
 defense.' It is a defense also when an infant is charged with 
 having effected a sale by deception and fraud, or with having 
 made a purchase by Mke means.* "Where the substantial ground 
 of action rests on promises, the plaintiff cannot, by changing- 
 the form of action, render a person liable who would not have 
 been liable if sued directly on his promise.' But there are 
 cases which hold that if an infant bailee does some distinct 
 tortious act in respect to the property bailed to him — as if he 
 hire a horse for one service and employ him in another, or hire 
 a horse and subject him to a treatment so cruel as to cause his 
 death — he may be held responsible in the one case as for a con- 
 version^ and in the other as a trespasser.* The doctrine seems 
 to be supported by the weight of authority, but is not univer- 
 sally accepted.' And the question whether an infant is lia- 
 ble in tort for falsely representing himself to be of fuU age, 
 whereby he induces another to enter into a contract with him 
 to the other's prejudice, is one upon which the decided cases 
 
 1 Jeimings v. Rundall, 8 T. R. 335. * Hall v. Corcoran, 107 Mass. 351, 
 
 2 Gilson V. Spear, 88 Vt. 311, 88 Am. 9 Am. Rep. 30. 
 
 Deo. 659. 5 Fish v. Ferris, 5 Duer, 49. 
 
 3 Green v. Greenbank, 2 March, e gee Penrose v. Curren, 8 Rawle, 
 485. 351, 24 Am. Dec. 356. 
 
tEGAL EESPONSIBILITT FOE TOETS. 31 
 
 are greatly at variance. The preponderance of authority 
 seems to be in the negative.^ But an infant cannot obtain title 
 to property by a fraudulent purchase or on a contract which 
 he disaifirms ; if he repudiates the contract he must return the 
 property on demand, and if he refuses, it may be taken from 
 him in replevin, or the value recovered in trover.^ The rule 
 applies to the case of a purchaser where a worthless check is- 
 given in payment.' 
 
 The doctrine respondeat superior rests upon a relation created 
 by contract, and an infant employer cannot be held liable for 
 the negligent torts of his servant.* Neither can he be held a. 
 trespasser by relation through the acceptance of a tortious act 
 which another, withoute his knowledge, has assumed to do in 
 his behalf.^ 
 
 It is held that where an infant wrongfully converts money 
 or property of another to his own use, the tort may be waived 
 as it might be if he were of f uU age." 
 
 Drunkenness. — That a tort was committed when in a 
 drunken state is no excuse.' It is conceivable, however, that 
 the fact might have influence on the award of damages, either 
 to aggravate or to mitigate them, according to the nature of 
 the case and the circumstances. 
 
 Duress. — As a minor cannot excuse his tort by showing th& 
 command of his parent or guardian, neither can another per- 
 son by proving actual compulsion. But the command of an 
 existing military authority which could not be resisted or safely 
 disobeyed is an exception.* 
 
 Torts by married women. — Where husband and wife jointly 
 commit a tort the action is properly brought against him alone,. 
 for the whole may be assumed to be his act.' But, in general, 
 a married woman is responsible for her wrongful acts when 
 
 1 Johnson v. Pie, 1 Lev. 169, 1 Sid, Rep. 290; ElweU v. Martin, 33 Vt. 
 258, 1 Keb. 905; Carpenter v. Car- 217. 
 
 penter, 45 Ind. 142. And see Nash 'Reed v. Harper, 25 la. 87, 95 Am. 
 
 V. Jewett, 61 Vt. 501, 4 L. R. A. 561. Deo. 774 As to the responsibility 
 
 2 Badger v. Phinney, 15 Mass. 359, for crime committed by an intoxi- 
 8 Am. Dec. 105. cated person, see State v. O'Neil, 51 
 
 3 Mathews v. Cowan, 59 111. 341. Kan. 537, 24 L. R. A. 555. 
 
 < Robbins v. Mount, 33 How. Pr. 24 * McKeel v. Bass, 5 Cold. 151. 
 
 sBurnham v. Seaverns, 101 Mass. ^McKeown v. Johnson, 1 MoCord, 
 
 360, 100 Am. Dec. 123. 578, 10 Am. Dec. 698. 
 6 Shaw V. Cofan, 58 Me. 354^ 4 Am. 
 
32 LEGAL HESPONSIBILITY FOB TOETS. 
 
 they work injury to others.' Suit therefor, if brought in the 
 life-time of the husband, will be against the two jointly, and 
 the judgment recovered may be enforced against him.^ If he 
 die before suit brought, or afterwards and before judgment, 
 the right of action survives as against her.^ It is presumed, 
 however, that if a tort is committed by the wife in the pres- 
 -ence of the husband, it is his tort rather than hers and should 
 be redressed in a suit against him alone.^ But the presumption 
 anay be overcome by such evidence as shows that hers was the 
 controlhng will, or that at least she was acting freely and not 
 under compulsion in what she did, and where such was the 
 case the two should be joined.' If the two are joined the tort 
 should be described as that of the wife alone, or of the two 
 jointly, though^ if the action be trover at the common law, the 
 conversion should be averred to be for the use of the husband." 
 Probably in states where by statute the married woman has 
 aU the property rights of a feme sole, tiie conversion may be 
 .averred to be for her own use.' 
 
 In suits for the torts of married women where the element 
 •of contract is involved, the same reasons which would preclude 
 the indirect redress of an infant's breach of contract by treats 
 ing it as a tort are present in f uU force. And there is also the 
 same difficulty here in drawing a definite, clear line of distinc- 
 tion between cases which are clearly in their substance cases 
 of contract, and though a wrong is involved, and cases in 
 which the wrong stands apart from the contract. The cases 
 in which infancy has been relied upon as a defense will furnish 
 analogies for the decision of cases brought against parties 
 under coverture. But the common-law rules of liability are 
 greatly modified by the statutes which confer upon a married 
 woman the f uE. property rights of other persons and empower 
 
 1 Prentiss v. Paisley, 25 Fla. 927, sCassin v. Delaney, 38 N. Y. 178; 
 7 L. R. A. 640. Simmons v. Brown. 5 E. I. 299, 73 
 
 2 Wright V. Leonard, 11 C. B. (N. S.) Am. Dec. 66. • 
 
 258. 6 Sowing v. Manley. 49 N. Y. 192, 
 
 3Capel V. Powell, 17 C. B. (N. S.) 10 Am. Rep. 346; Shaw v. HaUihan. 
 
 743; Franklin's Appeal, 115 Pa. St. 46 Vt. 389, 14 Am. Rep. 628. 
 
 .534; Baker v. BrasUn, 16 R. L 635, 6 'See Yannemau v. Powers, 56 N. 
 
 L. R. A. 718. Y. 39. 
 * Baker v. Young, 44 lU. 42, 92 Am . 
 
 Dec. 149. 
 
LEGAL EESPONSIBILITY FOK TOETS. 33 
 
 her to make contracts in her own name and to her own use. 
 As owner of property she must now respond for nuisances and 
 wrongs of negligence as other persons must ; and the reason- 
 ing in some of the cases would justify us in saying that the 
 effect of the new statutes must be to leave married women to 
 respond alone for their torts of every nature in which neither 
 direct nor indirect participation, by husbands can be shown.^ 
 But there are other cases which hold that the common-law 
 rules remain unchanged except as her more complete control 
 of her own actions necessarily effects a change. ' 
 
 Association in tortious acts. — Persons associated in busi- 
 ness may jointly be liable for torts though not all directly par- 
 ticipating in the commission thereof. But the circumstances 
 must be such that the assent of aU to the wrongful act is to be 
 implied. The fact that two or more persons are partners in 
 business dbes not raise a presumption that each of them makes 
 the others his agent for the oonmiission of wrongs upon third 
 persons. A partnership has lawful objects in view ; and the 
 implied authority of each to act for aU. goes no farther than to 
 give sanction to such steps as have in view the accomplish- 
 ment of those objects; to that extent all are liable. Therefore 
 for a false warranty in a sale, a deception in making a pur- 
 chase, and the like, where what is done is a partnership trans- 
 action, though done by a single partner, without the presence 
 or knowledge of others, or even by an agent acting under part- 
 nership authority, aU vdH be responsible; while on the other 
 hand an act of violence conmiitted by a partner, or any wrong 
 not a part of a partnership transaction and not accompanied 
 by circumstances of apparent sanction by the associates to 
 justify its being imputed to all, is to be deemed the wrong 
 only of the party committing it. 
 
 Persons associated in riotous conduct may each be liable for 
 the individual acts of all though no express assent to any one 
 of them be shown. A mob is not likely to deliberate and agree 
 in advance just how far the assemblage will go in assaults or 
 ' destruction of property; the movement is passionate and ex- 
 cited, and every person taking part therein must be understood 
 as assenting to such violent and destructive conduct as is likely 
 
 iSee Mayhew v. Bums, 103 Ind. 1887, 10 Cent. Eep. 189; Farley v. Til* 
 328; Troxall v. SUverthorne, N. J. Ch., lar, 81 Va. 275. 
 3 
 
34 LEGAi EESPONSIBILITT FOE TOETS. 
 
 to follow when lawless and passionate bodies of men gather 
 for purposes inconsistent with public order and the regular 
 administration of law. He sanctions by his presence and gives 
 encouragement to what is done; he adds to the violence and 
 passion that for the time are dominant, and is justly held hable 
 not only for the mischief committed by his own hands, but as 
 a participant in the wrong-doing of each of his lawless asso- 
 ciates. 
 
 Corporations are responsible for the wrongs committed or 
 authorized by them under substantially the same rules which 
 govern the responsibility of natural persons. Corporations 
 indeed are limited in their powers by the corporate grant, and 
 they are never expressly authorized by this to do lawless acts ; 
 but, keeping within the apparent scope of the grant, they may 
 by the action of their officers and agents render themselves 
 generally liable for torts when the circumstances are such that 
 a single individual or a partnership would be Hable.* But if 
 the alleged tort consists in the breach of some duty which from 
 its nature could, not be imposed upon or discharged by a cor- 
 poration, or is connected with a dealing entered into by its 
 ofBcers in its name or on its behalf, but which was forbidden 
 by its charter, it cannot be liable, and the party' injured must 
 look to the officers for redress.' These are cases standing by 
 themselves; the general rule of liability embraces negligences 
 and omissions of officers and agents in the corporate business^ 
 and tortious acts directly authorized by the corporation or which 
 are done in pursuance of a general or special agency, or which 
 are ratified by the corporation afterwards.' And in deciding 
 upon corporate liability, officers, agents and servants will be 
 considered as being vested with a liberal discretion, and the 
 corporation held Mable for all their acts within the most ex- 
 tensive range of the corporate powers.* A corporation may 
 even be held liable for an assault and battery committed by an 
 agent in performing an authorized act wrongfully or with ex- 
 cessive force,* or for a libel contained in a report made by its 
 
 iWaohsmuth v. Merchants' Nat. 'Mayor, etc. of Lyme Regis v. Hen- 
 Bank, 96 Mich. 426, 21 L. R. A. 278, ley, 1 Bing. N. C. 222. 
 and cases cited. ' * Jeffersonville R. B. Co. v. Rogers, 
 
 2 Weokler v. First Nat. Bank, 42 38 Ind. 116, 10 Am. Rep. 103. 
 Md. 581, 20 Am. Rep. 95. 6 Monument Nat. Bank v. Globe 
 
 Works, 101 Mass. 57, 3 Am. Rep. 322. 
 
LEGAL KESPONSIBILITT FOE TOETS. 35 
 
 board of directors,^ or for a malicious prosecution.^ instituted 
 in its interest, or for false imprisonment,' or for conspiracy,* or 
 for frauds when these are committed in the transaction of cor- 
 porate business or the performance of corporate acts." There 
 is a legal unity between the corporation and its agent, so long 
 as he keeps within the limits of his authority, as much when 
 his acts are wrongful as when they are rightful. If authorized 
 to sell the corporate stock the corporation will be responsible 
 for his excessive sales.* In general it may be said the rules of 
 responsibility for his acts are the same as those which apply as 
 against individual employees for the acts of their servants. 
 
 Public corporations must respond for the torts of theic offi- 
 cers, agents or servants committed in the exercise of corporate 
 authority or which are the result of corporate negligence. Even 
 the state or the United States may be guilty of individual in- 
 juries; and though, being a sovereignty, it is not hable to suits 
 except with its own consent, it is always to be presumed it will 
 make provision whereby some court or other tribunal will be 
 empowered to make suitable compensation, or, faiUng in this, 
 win give it by direct legislative action.' 
 
 1 Phila. et-c. R E. Co. v. Quigley, ' Carter v. Howe Mach. Co., 51 Md. 
 31 How. 203; Mo. Pac. R. Co. v. Eicli- 290, 34 Am. Rep. 311. 
 
 mond, 73 Tex. 568, 4 L. R. A- 280. In < Buffalo, etc. Co. v. Standard Oil 
 
 a recent case a town was held not Co., 106 N. Y. 669. 
 
 subject to an action for liliel in pub- 5 Ranger v. Gt. "West. E. E. Co., 5 
 
 lishing a report of an investigating H. L. Cas. 71. 
 
 committee as to the manner in which ^New York, etc. E Co. v. Schuy- 
 
 a contract with the town had been ler, 34 N. Y. 30; Tome v. Parkei-s- 
 
 performed. Rowland v. Town of, burg R. E. Co., 39 Md. 36, 17 Am. 
 
 Maynard, 159 Mass. 434, 21 L. R. A. Rep. 540. 
 
 500. ^ See Young v. State, 39 Minn. 474; 
 
 2 Jordan v. Ala. G. S. E R. Ca, 74 Hans v. Louisiana, 134 U. S. 1; An- 
 Ala. 85, 49 Am. Rep. 800. drews' Steph. PL 28. 
 
CHAPTEK V. 
 
 WRONGS IN WHICH TWO OR MORE PARTICIPATE. 
 
 Some wrongs are in their nature individual. The oral utter- 
 ance of defamatory words is an illustration.^ Some others can 
 only be accomplished by the concurring act of two or more. 
 Of these, is conspiring to ruin one in his reputation, originating 
 in combination ahd carried out by joint action, or at least in 
 pursuance of the joint artangement and understanding.' There 
 must be two or more actors, for one man cannot combine with 
 himself. But the conspiracy is important only as it shows con- 
 currence in the wrong accomplished in pursuance of it, for 
 the injury may be treated as a distinct wrong irrespective 
 of the steps which led to it ; and the conspiracy, standing by 
 itself, with nothing done under it, wUl support no action.* The 
 damage, not the conspiracy, is the gist of the action; and if 
 nothing is done in pursuance of the combination, it must be 
 looked upon as a mere unfulfilled intention of several to do 
 mischief.* If the mischief is accomplished the conspiracy be- 
 comes important, as it enables the party wronged to look be- 
 yond those who actually did the injurious act, and to join with 
 them as defendants aH who conspired with them to accomplish 
 it. The conspiracy therefore gives a remedy against parties 
 not otherwise connected with the wrong. It may also, as mat- 
 ter of aggravation, be shown to increase the damages.* 
 
 To make a conspiracy actionable there must be a deprivation 
 of some legal right in consequence. Therefore, a conspiracy 
 to induce one not to give by his will a gratuity to the plaintiff 
 
 1 And if two utter the same slan- 374; Eamball,v. Harmon, 34 Md.407, 
 
 der at the same time they cannot be 6 Am. Rep. 340; Page v. Parker, 43 
 
 sued jointly. Webb v. Cecil, 9 B. N. H. 363, 80 Am. Dec. 173. 
 
 Mon. 198, 48 Am. Dec. 423. 4 Garing t. Fraser, 76 Me. 37; Place 
 
 2HutchinsT.Hutchins,7HiU,104 v. Minster, 65 N. Y. 89; Boston v. 
 
 Big. L. C. on Torts, 307; Wildee v. Simmons, 150 Mass. 461, 6 L. R A 629. 
 
 McKee, 111 Pa. St. 335, 56 Am Rep. » Kimball y. Harmon, supra; Van 
 
 371. Horn v. Van Horn, 53 N. J, L. 284^ 10 
 
 'Savile v. Roberts, 1 Ld. Raym. L. R. A. 184. 
 
WRONGS IN WHICH TWO OK MOEE PARTICIPATE. 37 
 
 is not actionable, the plaintiff having no right to the gratuity.^ 
 And a conspiracy to induce one to violate his contract is held 
 not actionable, the right under the contract being the same as 
 before. If on the trial the conspiracy is not made out, the 
 plaintiff may recover against the. party or parties by whose 
 direct act the wrong was accomplished.' 
 
 In most cases of joint wrongs the participants may be such 
 in different ways and in different degrees; this does not affect 
 their liability or require an apportionment between them of 
 the legal consequences. But the mere approval of a wrong, or 
 the expression of pleasure or satisfaction at its having been 
 accomplished, will not make one a legal participant.' 
 
 Ratification. — One may adopt or ratify a wrong done by 
 another in his behalf, and thereby become liable as if he had 
 advised or directed it. But the ratification must be with full 
 knowledge of the facts, or with the purpose of the party, with- 
 out such knowledge, to take the consequences upon himself.* 
 It is not sufficient that the party receives and appropriates a 
 benefit from what is done,* or takes steps in the defense of the 
 wrong-doer,® or to secure in his behalf a compromise ; ^ for these 
 are acts that might be done out of friendship where no interest 
 existed. If the wrong-doer was agent or servant to the other, 
 ratification may be established on slighter evidence than in 
 other cases; approval retrospectively being in the nature of an 
 enlargement retrospectively of the previous authority. 
 
 Parties to suits and ofBeers. — Where one sues out a writ 
 against another, the writ is a protection to the plaintiff and to 
 the officer acting under it, provided it is valid and there is no 
 departure from its command in executing it. If the writ is 
 void, the plaintiff is liable for what is done in pursuance of its 
 command, and for anything further that he advises or partici- 
 pates iu, or ratifies and takes a benefit from.* But this is the 
 limit of his responsibility. The officer wiU be liable for what- 
 ever he shall do under a void writ, 'and for any excess in the 
 
 I Hutchins v. Hutchins, 7 TTill, 104 « Buttrick v. Lowell, 1 Allen, 178, 
 
 2Hutchins v. Hutchins, supra; 79 Am. De& 721. 
 
 Parker v. Huntington, 2 Gray, 124 ^Eoe v. Birkenhead, etc. E. Co., 7 
 
 See Stanfleld v. Jackson, 137 Ind. 593. Exoh. 36, 7 Eng. L. & Eq. 546. See 
 
 'Cooper V. Johnson, 81 Mo. 488. Mech., Agency, § 113. 
 
 ♦Lewis V. Head, 13 M. & W. 834; 8 Root v. Chandler, 10 Wend. 110, 
 
 Tucker v. Jervis, 75 Me. 184 25 Am. Dec 546. 
 
 SHyde t. Cooper, 26 Vt 55a 
 
38 WEONGS IN WHICH TWO OE MOEE PAETIOIPATE. 
 
 exercise of Ms authority under a valid writ, or any departure 
 from the command of such a writ to the injury of the defend- 
 ant or of any other person. It is a ratification of his wrongful 
 act if the plaintiff takes upon himself the officer's defense when 
 he is sued therefor, as he will if he gives a bond of indemmfi- 
 cation.i 
 
 An attorney who delivers a writ to an officer for service is 
 liable to the extent of the command if the writ is illegal, but 
 no further except as he advises or in some manner connects 
 himself with what is done by the officer under it.^ He is not 
 liable for malicious prosecution on proof that he knew of his" 
 cKent's malice, unless he also knew there was not a reasonable 
 cause of action.' The attorney Inay be liable when his client 
 is not; as when action is taken by the former which the latter 
 did not advise, consent to or participate in, and which was not 
 justified by any authority he had given.* 
 
 A sheriff or other executive officer is liable to the plaintiff 
 in a writ for the deputy's misconduct or neglect to the plaint- 
 iff's injury, and to the defendant or any third persons for the 
 deputy's misfeasances from which he or they are wrongful suf- 
 ferers.' The deputy is in general equally liable ; but, when a 
 mere neglect to perform an official duty is complained of, the 
 sheriff alone is to be sued, since it is upon him alone that the 
 official duty rests.* 
 
 Extent of joint liaMlity. — Wrongs intended. — When the 
 wrong done was intended, the parties are supposed to intend 
 the consequences which follow, and each must assume the re- 
 sponsibility of the misconduct of aU.' The person wronged 
 may treat all concerned in the injury as one party, and if he 
 proceeds against them jointly he is not bbund to point out how 
 much of the whole is attributable to one and how much to an- 
 
 iMurray V. Lovejby, 2Clia 191. Woodgate v. KnatchbuU, 3 T. E. 
 
 2Bui-nap V. Marsh, 13 la 535; Ford 148; CampbeU t. Phelps, 17 Mass. 
 
 V. Williams, 13 N. Y. 577, 67 Am. 244; Norton v. Nye, 56 Me. 311. 
 
 Dec. 83. 6 Cameron v. Reynolds, Cowp. 403 ; 
 
 'Peck v. Chouteau, 91 Mo. 138, 60 Buck v. Ashley, 87 Vt. 475. And see 
 
 Am. Eep. 336. Gibbens x. Pickett, 31 Fla. 147, 19 
 
 4 Freeman v. Kosher, 13 Q. B. 780; L. R. A. 177. 
 
 Welsh v. Cochran, 63 N. Y. 181, 20 ^McMannus v. Lee, 43 Mo. 208, 97 
 
 Am. Rep. 519. Am. Dec. 386. 
 
 sProsser v. Coots, 50 Mich. 263; 
 
"WEONGS Hir WHICH TWO OE MOKE PAETICIPATE. 39 
 
 other. Neither is the jury to make any apportionment by 
 their verdict.^ 
 
 But the party injured may, at his option, proceed against 
 any one or more of the parties responsible and enforce his rem- 
 edy to the full extent, regardless of the participation of the 
 others ; for the wrong-doing of one is not diminished by the 
 fact that others assisted or stood by and encouraged him, or 
 interposed to prevent aid and protection. The rule applies to 
 a party who sues out a void writ, to the magistrate who issues, 
 and the officer who serves it ; it is bf no importance that the 
 participation of one was insigniflcant as compared to that of 
 another.^ The responsibility here is quite distinct from that 
 upon contracts; independent contractors carinot be sued jointly, 
 even though what they agree to do has the same general pur- 
 pose in view, but joint contractors cannot be sued separately ; 
 their liability is to be determined by the promise they made, 
 and when they do not sever in that, the plaintiff has no optioii 
 to compel them to sever when he sues them. 
 
 A sheriff or other officer acting by deputy is participant in 
 what is done by the deputy, for in contemplation of law he is 
 always present and directing the action. Several persons may 
 be joint wrong-doers, though in the wrong done they are sev- 
 erally looking after distinct individual interests; as where they 
 obtain writs for their several demands against the same debtor, 
 and the same officer arrests him. upon aU th^ writs at the same 
 time. The officer who attached goods, the officer who took 
 them from him on an execution in the attachment suit, and the 
 plaintiff in that suit, have been held jointly liable. 
 
 If the party wronged elects to proceed against one or more 
 of the wrong-doers less than all, the beginning of the suit is 
 not a release of the others, but he may sue them afterwards. 
 I^either is the recovery of a judgment a bar to further suits 
 against the others.' But the injury being joint, and a recovery 
 against one being for all the damages supposed to have been 
 sustained, the satisfaction of that judgment is a complete bar.* 
 
 1 Keegan v. Hayden, 14 E. L 175. judgment is a bar. Brown v. Woot- 
 
 ^Farebrother v. Ansley, 1 Camp, ton, Cro. Jao. 73; King v. Hoare, 13 
 
 343; Murphy v. Wilson, 44 Mo. 313, M.<fe "Vy-494 And see Hunt v. Bates, 
 
 100 Am. Dec. 290. 7 R. I. 317. 
 
 3 In England, however, recoyerj/ of * Livingston v. Bishop, 1 Johns< 
 
40 "wuoNGS n*r which two oe moee participate. 
 
 If several suits are brought there may be several judgments in 
 the plaintiff's favor, and possibly in different sums. He may 
 proceed on all until satisfaction of one is obtained. Whether 
 this is larger or smaller than the others is unimportant as bear- 
 ing on this rule ; he may collect the largest if he can, but the 
 collection of the smaller is equally a satisfaction; and so is the 
 acceptance of something in satisfaction without taking out 
 execution.* But he is entitled to his costs in all the cases.^ 
 If the wrong consists in the appropriation of property belong- 
 ing to the plaintiff, and a part was taken by one and a part by 
 another, it has been held that settlement may be made with 
 one as to the part taken by him without discharging the other; 
 but this must be regarded as an exceptional case.' But in any 
 case of conversion of property, whether by one or several, if 
 settlement is made as to a part of it, and the case as to the re- 
 mainder is expressly left undisposed of, it would doubtless, as 
 to the parties to the arrangement at least, be still open to the 
 customary remedies.* 
 
 Wrongs not pwrposel/y done. — A wrong not intended is com- 
 monly a failure to perform some duty which the party has 
 assumed by contract, or which the law has imposed because of 
 official position or of some special relation. In such a case sev- 
 eral persons may be blamable, but not aU liable to the party 
 wronged. The legal wrong is chargeable only to the party 
 who has by his contract assumed the duty, or upon whom the 
 law imposed it. It is the breach of duty which constitutes the 
 wrong, and that party is the wrong-doer upon whom the un- 
 fulfilled duty rested. The seeming exceptions to the rule are 
 of those cases in which, independent of the duty, the facts 
 would constitute a positive wrong. The case of the common 
 carrier of goods wiU furnish an illustration : his legal under- 
 taking is to carry and deliver safely and within a reason,able 
 time, subject only to such delays and injuries as may resjult 
 from the act of God or of the public enemy. He may employ 
 many servants in his business; but the owner of goods who 
 
 290, 3 Am. Deo. 330; TJnited Society 2 Windham v. "Wither, Stra. 515; 
 
 V. Underwood, 11 Bush, 265, 31 Am. Livingston v. Bishop, supra. 
 
 Eep. 214; Lord v. Tiffany, 98 N. Y. 'Fitzgerald v. Smith, 1 liid. 310. 
 
 412, 50 Am. Eep. 689. ' <McCrillis v. Hawes, 38 Me. 566. 
 1 Turner v. Hitchcock, 20 la. 310. 
 
WEONGS IN WHICH TWO OE MOEB PAETICIPATE. 41 
 
 complains of a breach of his obligation as carrier will proceed 
 against the carrier alone, since it is upon him alone and not 
 upon one or aU of his servants that the obligation was im- 
 posed. If, however, a servant, by some distinct and positive^ 
 act, shall destroy or injure the goods in transit, he will himself 
 be liable for the damage suffered, though the owner, at his 
 election, may proceed against him alone or against the carrier^ 
 or join bot^. If both are sued it may be necessary to make 
 proof of the special relation, in order to show a connection be- 
 tween the carrier himself and the injury complained of; though 
 if the carrier in person participated with the servant in the act 
 which caused the injury, this showing would be needless. The- 
 case of a sheriff and his deputy may furnish another pertinent 
 illustration : the two may be held jointly responsible for any 
 wrongful act of the deputy under a writ committed to him for 
 service; but when what is complained of is the failure to per' 
 form some official duty which by law is imposed upon the sheriff,, 
 though the deputy is empowered to perform it, it is the sheriff 
 alone who must be called npon to respond, even though, under 
 the circumstances of the particular case, it may be apparent 
 that the deputy was in point of morals more blamable than the 
 principal. This is the general rule of official responsibility 
 when a duty imposed upon an officer has failed in performance ;. 
 it is th« officer himself who must be charged with the wrong,, 
 because it was upon him that the duty was imposed. A seem- 
 ing but not a real exception may exist where the law imposing 
 the duty not only empowers the deputy to perform it, but,, 
 under circumstances which it specifies, requires him to do so ; 
 for a showing that these circumstances existed, and that the 
 deputy had failed to act, would then make out against him a 
 complete cause of action under the general rule as given above. 
 But negligence is always unlawful.' The moment the deputy 
 of a public officer, or the servant of one who by contract rela- 
 tions or otherwise is charged with a duty to a third person,, 
 enters upon the discharge of such duty and conducts himself 
 in such a negligent manner in respect thereto that another is 
 injured, the deputy in the one case, and the servant in the other, 
 is personally responsible therefor, as is also his principal. The 
 
 1 Richardson v. Kimball, 28 Me. 463. See Mech., Agency, § 698. 
 
42 WEONGS IN WHICH TWO OE MOEE PAETICIPATE. 
 
 distinction here is between an injury which might nave been 
 avoided by active steps which the law only required of the 
 principal, and an injury directly attachable to the misconduct 
 -of the subordinate. Continually we are having illustrations of 
 such Habihty in the case of railroad employees, especially those 
 employed in the transportation of persons. If the conductor 
 -of a railroad train shall forcibly remove a passenger therefrom 
 without justification, he is responsible personally for his mis- 
 conduct, as is also the railroad company itself. But the un- 
 dertaking of the railroad company is not merely to carry the 
 passenger, — which is broken by his ejection from the car, — 
 but it is to do so with observance of the highest care to protect 
 against injury to life or limb ; and every person in its service is 
 under obligation to the public and to every person transported, 
 to so perform the task devolved upon him by his employment 
 -that there shall be no breach of the company's duty as a result 
 of his personal negligence. For a ^careless injury to a passen- 
 ger or to any third person directly traceable to him he is re- 
 sponsible as he would have been if there were no superior to 
 respond . for it ; the difference being that in the one case he 
 alone would be liable for it, while in the other the master whose 
 blamable servant he is may be proceedpdr against also.^ The 
 ■case of a libelous publication in a newspaper is somewhat anal- 
 ogous: the publisher of the paper is under obligation to exclude, 
 any such publication, and he, as well as any subordinate who 
 carelessly or otherwise was concerned in making it, may be 
 oaUed to account therefoi*.^ 
 
 Contribution and indemnity as between wrong-doers.-r-It 
 is a maxim in the law that no one can make his own miscon- 
 duct the basis of an action in his own favor. If he suffers be- 
 cause of his own misconduct he must not look to the law for 
 redress. If, therefore, one of several persons who are hable 
 jointly for a wrong is proceeded against separately and com- 
 pelled to make reparation, the l^w wiU give him no assistance 
 in securing contribution from the others.' Such is the general 
 
 iSee Purcell t. Richmond & Dan- Am. Dec. 846; Street v. Johnson, 80 
 
 ville E. Co., 108 N. C. 414, 13 L. E. A. Wis. 455, 14 L. R. A. 303. 
 
 113; Burnham v. Gr. T. E- E. Co., 68 » Merryweather v. Nixan, 8 T. E. 
 
 3Ie. 398, 18 Am. Eep. 330. 186; Coventry v. Barton, 17 Johns. 
 
 2 Dole V. Lyon, 10 Johns. 447, 6 143, 8 Am. Dec. 376; ChurchiU v. 
 
■WfeONGS nr WHICH TWO OE MOEE PAETIOIPATE. 43 
 
 rule, and it is founded in sound reasons of public policy,^ 
 though at first blush it has an appearance of unfairness, since 
 it enables the person injuyed to select from among those who 
 have wronged him the person who shall make compensation to 
 the relief of the others. But it has a decided tendency to dis- 
 courage illegal transactions, since it gives every person disposed 
 to engage in them to understand that, however numerous may 
 be his associates, the whole burden of responsibility for the 
 mischief done by all is liable to be cast in the end upon his 
 shoulders exclusively. The rule, moreover, saves to the public 
 treasury the expense, and the courts of justice the labor, of any 
 attempt at an adjustment of equities as betwee^i participants 
 in unlawful action. 
 
 ' But there are many cases in which, though two or more are 
 wrong-doers in contemplation of law as between themselves 
 and some third person, yet only one of them was in fault for 
 the injury done ; and if another has been compelled to make 
 compensation, his claim to indemnity from the one for whose 
 fault he has made atonement may be perfectly reasonable and 
 just.^ The case of a master who has been compelled to re- 
 spond in damages for an injury caused by tlie negligent or 
 other wrongful act of his servant, to which his privity was 
 purely conventional, is one of these : when he calls upon the 
 servant for indemnity, the reasons for the maxim above referred 
 to have no application whatever, and the master's demand is 
 just and also legal.' On the other hand, if the master has 
 directed the servant to perform some act within the apparent 
 scope of his authority, and the servant in good faith has per- 
 formed it, but has been held liable therefor to some third per- 
 son, he has, as against the master, a claim to indemnity that no 
 rule of law or of public policy wHL refuse to recognize.* The 
 case of an. officer who is called upon to make service of process 
 in a civil case may also be instanced ; if the validity of the pro- 
 cess, or the legality of any proposed action under it, depends 
 
 Holt, 131 Mass. 67, 41 Am. Rep. 191; ^ jfainwaring v. Brandon, 8 Taunt. 
 
 Texas & P. E. Co. v. Doherty (Tex. 203; Smith v. Foran, 43 Conn. 244, , 
 
 App.), 15 S. W. Eep. 44 21 Am. Eep. 647. 
 
 1 See Pierson v. Thompson, 1 Edw. « Grace v. Mitchell, 31 Wis. 533, 11 
 Ch. 213. Am. Eep. 613. 
 
 2 Nashua Iron & Steel Co. v. Wor- 
 cester & N. E. Co., 62 N. H. 159. 
 
44 WEONGS DT "WHICH TWO OE MOEE PAETICIFATE. 
 
 upon some disputed question of law or of fact, and the plaintiff 
 undertakes to indemnify the ofBcer for any liability he may 
 incur in making the service, it is perfectly reasonable that the 
 law, if appealed to, should compel him to perform his under- 
 taking.' The case is plainly distinguishable from, one in which 
 indemnity is promised for the publication of a libel, or for a 
 malicious assault or other similar wrong; for the promise in 
 any such case is altogether void.^ 
 
 There are also many cases in which a party who has been com- 
 pelled to make compensation for a wrong is justly entitled to 
 contribution from others whose relation to it was the same as 
 his own, though he alone was proceeded against. If the wrong 
 was done in the prosecution of some lawful undertaking in 
 which aU were concerned,'and the act which proved to be 
 wrongful was done in good faith and with the express or im- 
 plied assent of all, the claim to contribution from his associ- 
 ates would seem to be unanswerable.' If, on the other hand, 
 that which was done was known to be illegal, or the ciroum- 
 sta-nces were such as to render ignorance of its illegality inex- 
 cusable, the joint interest is not a controlling factor, and the 
 law will not lend its aid to relieve the party to any extent 
 from consequenees which his own unjustifiable conduct has 
 brought upon him.* 
 
 In the application of these rules to the cases of corporations, 
 and partnerships, which are aggregations of individuals, it is 
 obvious that if the wrong consisted in the failure to perform a 
 conventional duty imposed upon the aggregate body, whereby 
 that body is made responsible, the members will necessarily 
 share the loss in proportion to their respective interests.* But 
 if an individual is made responsible for a tort committed in the 
 service of any joint association, his right to indemnity will be 
 governed by the' rules which prevail in the relation of master 
 and servant as given above.' 
 
 1 Nelson v. Cook, 17 IlL 443. son v. Torpy, 35 Neb. 604; Vandiver 
 
 2 Atkins V. Johnson, 43 Vt. 78, 5 v. PoUak, 97 Ala. 467, 19 L. R. A. 628; 
 Am. Rep. 260. Farwell v. Becker, 129 HL 391, 6 Lu 
 
 "Mere negligence in doing a law- E. A. 400, and cases cited in note to 
 
 ful act does not deprive one of the Boston v. Simmons, 6 L. E. A. 631. 
 right to contribution from another = See Smith v. Ayrault, 71 Mich, 
 
 originally liable. Ankeny v. Mof- 475, 1 L. E. A. 311. 
 fett, 37 Minn. 109. 6 gee Poulton v. London & S. W. 
 
 < See, as illustrating the rule, John- E. E. Co., L. E. 3 Q. B. 535. 
 
WEONGS IN WHICH TWO OE MOEE PAETIOIPATE. 45 
 
 Injury sustained in wrong-doing. — Where two or more 
 persons are jointly concerned in "wrong-doing, and by the neg- 
 ligent or reckless action of one of them another is injured, the 
 latter is withouti remedy for the injury.' The cases may be 
 instanced of persons participating in a riot, or in a smuggling 
 venture, or in illegal sports ; an injury which one suffers under 
 such circumstances is as directly traceable to his own breach 
 of the law as to the misconduct of his associate, and any de- 
 mand made on his part for redress would be based upon a 
 showing of the violation of his own duty to the public. The 
 case of one who is injured in illegal action may be said to be, 
 if possible, still plainer and more just in a case where the action 
 of the other party is wrongful only because of the negligence-. 
 An illustration may be seen in the case of a party who, while 
 making use of the pubho highway, is injured because of its 
 being out of repair; if the use was lawful, he has a remedy for 
 the damage suffered as against the public body or corporation 
 whose duty was neglected in suffering the highway to be out 
 of repair; but if the use was unlawful, as, for example, if he 
 were on his way to attend unlawful Sunday games,, or were 
 engaged in ordinary labor, when labor, except works of charity 
 and necessity, are forbidden, redress would be denied him.^ Of 
 these cases we need say only that a liberal construction of the 
 terms cJiarity and necessity wiU always be given, so as to make 
 them cover aU meritorious cases.' And so in the case of for- 
 bidden Sunday travel; the exception in favor of travel to at- 
 tend religious worship will be construed to cover the cases of 
 professors of the most absurd beliefs, provided that in their 
 practices nothing of an immoral nature is indulged in.* The 
 decided cases in which persons injured by the negligence of 
 
 1 Wallace v. Cannon, 38 Ga. 199,95 for the determination of the jury. 
 Am. Dec. 385. Issuing, publishing and circulating 
 
 2 Connolly v. Boston, 117 Mass. 64, a newspaper. Handy v. Globe Pub. 
 19AmEep.396. Co., 41 Minn. 188, 4 L. E. A. 466; 
 
 5 The following occupations have Com. v. Matthews, 152 Pa. St. 166, 18 
 
 been held not to be works of neces- L. K. A. 761. 
 
 sity or charity: Keeping a barber- As to what occupations fall within 
 
 shop open and shaving customers, the terms, see Hennersdorf v. State, 
 
 ■ Com. V. Waldman, 140 Pa. St. 89, 11 25 Tex. App. 598, 8 Am. St. Eep. 448, 
 
 L. E. A. 563, But see Ungericht v. and cases cited in note. 
 
 State, 119 Ind. 379, 12 Am. St. Eep. 419, ^Feital v. Middlesex E. Co., 109 
 
 where it is held that the question is Mass. 398, 12 Am. Eep. 720. 
 
46 WEONGS IN WHICH TWO OE MOEE PAETICIPATE. 
 
 oommoii carriers while being transported on Sunday are not 
 entirely harmonious, but they tend now to the doctrine that 
 the courts will give redress for the injury, refusing to inquire 
 into the purpose for which the transportation was being had.^ 
 The rules here stated which exempt wrong-doers from liability 
 for negligent injury to their associates do not put those who 
 are themselves engaged in wrOng-doing so far out of the protec- 
 tion of the law that they may be purposely assaulted or other- 
 wise injured with impunity. The injury for which the law 
 win deny redress must be one attributable, in part at least,, 
 to their own misconduct.^ One who engages in an unlawful 
 game cannot with impunity be assaulted and beaten by his an- 
 tagonist;' and this has been applied to the case even of a 
 prize-fight, the agreement for the fight being void.* And a 
 trespasser is entitled to redress if excessive force is made use 
 of in ejecting him.* 
 
 1' Delaware, etc. R Co. v. Traut- 26 L. R. A. 605. In that case two 
 
 wein, 53 N. J. L. 169, 7 L. K. A. 435, were hunting together on Sunday, 
 19 Am, St. Rep. 443, citing important'' and one was injured by the neg- 
 
 cases. And see Van Auken v. C. & ligent discharge of a revolver by 
 
 W. M. B. Co., 96 Mich. 307, 23 L. B. the other. It was held that the in- 
 
 A. 33; Sutton v. "Wauwatosa, 39 Wis. jured party, not having contributed 
 
 21, 9 Am. Eep. 534 Oowfra, Stanton to the injury, should recover. 
 
 V. Metropolitan E. E. Co., 14 AUeh, SEtchberry v. Leveille, 2 Hilt 40. 
 
 485. And see Welch v. Wesson, 6 Gray, 
 
 A brakeman injured by reason of 505. 
 
 defective appliances, while working * Adams v. Waggoner, 33 Ind. 531, 
 
 in violation of the Sunday law, may 5 Am. Eep. 330. 
 
 recover against the company. Louis- ^Loomis v. Terry, 17 Wend. 496, 
 
 ville, N. A, & C. E. Co. v. Buck, 116 31 Am, Dea 306; Steinmetz v. Kelly, 
 
 Ind. 566, 3 L. E. A. 530. 73 Ind. 442, 37 Am. Eep. 170. And 
 
 2 See Baker v. Portland, 58 Me. 199, see Lyon v. Fairban^ 79 Wis. 455, 
 
 4 Am. Eep. 374 See the opinion of 24 Am. St. Eep. 73a 
 the court in Gross v. Miller (Iowa), 
 
CHAPTER VI. 
 
 WEONGS AFFECTING PERSONAL SECURITY. 
 
 Under this head are considered wrongs which affect the? 
 physical organization of persons or deprive them of their right- 
 ful liberty of movement. These wrongs have no necessary re- 
 lation to an ownership' of property, though in some cases the 
 extent of the injury may be affected by such OAvnership, and in 
 others the rights in pro^rty may be so involved that the same 
 acts may be innocent or injurious when they would take the 
 opposite character were no such rights in question. 
 
 Assaults and batteries. — Any attempt with unlawful force 
 to inflict injury upon another, and with the apparent present 
 ability to give effect to the attenlpt, if not prevented, is an as- 
 sault.' The raising of the hand in anger with apparent purpose 
 to strike and sufficiently near to enable the purpose to be car- 
 ried into effect ; the pointing of a loaded pistol at a person who 
 is within range ;^ the shaking of a whip in anger in a man's 
 face, and the Eke, are assaults ; ' and so would be an apparent 
 attempt to do personal violence, even though it could not be 
 given effect, if its object were not aware of that fact ; as when. 
 an unloaded pistol is pointed in a threatening manner at one 
 who supposes it to be loaded.* Every person has a right to- 
 live in society without being put in fear of personal harm, and 
 he has an action for the invasion of this right even though not- 
 otherwise injured.* 
 
 A successful assault becomes a battery, which coflsists in an- 
 injury actually done to the person of another in an angry, re- 
 
 1 There must be proof of violence State v. Neely, 74 N. C. 435, 31 Am. 
 offered so near that harm might en- Rep. 496 ; State v. McAfee, 107 N. C. 
 sue if the party was not prevented. 813, 10 L. R. A. 607. 
 
 People V. Lilley, 43 Mich. 531. See < Beach v. Hancock, 27 N. H. 233; 
 
 Clark V. Downing, 55 Vt. 259, 45 Am. State v. Church, 63 N. C. 15; Chapn 
 
 Eep. 613. man v. State, 78 Ala. 468. And see 
 
 2 State V. Taylor, 30 Kan. 643. State v. Herron, 13 Mont. 380, 83- 
 'See Martin v. Shoppee, 3 C. & P. Am. St. Rep. 576, and cases cited. 
 
 373-; State v. Rawles, 65 N. C. 334; * Beach v. Hancock, supra. 
 
■48 "WEONGS AFFEOTnra PEESONAIi secueitt. 
 
 vengeful, rude or insolent manner.' "Ihe wrong consists not 
 in an actual touching of the person so much as in the manner 
 and spirit in which it is done, and the question of bodily paia 
 or injury is important only as affecting the extent of the dam- 
 ages. To push gently against another in the endeavor to make 
 one's way through a crowd is -no battery, but a rude and in- 
 solent push may justify damages proportioned to the rude- 
 ness.^ ^ 
 
 It is implied in an assault or battery that it is committed 
 against the assent of the person assaulted; but the existence of 
 assent may not be a complete answer to a suit, as it would be in 
 most other cases when that is complained of as a civil injury 
 which in advance was consented to. An assault and battery 
 is a breach of the peace, and the state in its own interest wiU 
 punish it; and the assent of the person assaulted wiU be treated 
 as void and therefore as affording no justification.' The pre- 
 liminaries agreed upon for the fighting of a duel can be no ex- 
 cuse for the attempt to inflict bodily injury in pursuance 
 thereof. The case of batteries in the course of lawful games 
 and plays are seeming exceptions ; * but in those cases, unless 
 the batteries go beyond what is admissible * in such games, the 
 ■ peace of society is not disturbed and the interest of the state 
 not involved. 
 
 Deception may sometimes be equivalent to force as an in- 
 gredient in an assault; as when an explosive is put in one's 
 hand without knowledge on his part of its nature, or a poison- 
 ous drug is given him concealed in his food.' 
 
 Intent. — Accidental injuries are not in law batteries.' But 
 it is not necessary that the precise injury done should have 
 been designed. "When a missile is thrown into a crowd in 
 mere recklessness, any one struck by it may have action for his 
 
 1 Coward v. Baddely, 4 H. & N. 378, b gge Christopherson y. Bare, 11 Q. 
 Bigelow, L. Cas. on Torts, 231. B. 473, 477; Markley v. "Whitman, 95 
 
 2 Cole V. Turner, 7 Mod. 149, Bige- Mich. 336, 20 L. E. A. 65, 85 Am. St 
 low, L. Cas. on Torts, 281. Eep. 558. 
 
 3 Buller, N. P. 16; Adams v. Wag- 6 Com. v. Stratton, 114 Mass. 303, 
 goner, 33 Ind. 531, 5 Am. Eep. 230; 19 Am. Eep. 350; Eeg. v. Look, 13 
 Com. T. Collberg, 119 Mass. 850, 20 Cox, C. C. 344; Carr v. State, 135 Ind. 
 Am. Eep. 338; WiUey v. Carpenter, 1, 30 L. E. A. 863. 
 
 64 Vt. 312, 15 L. E. A. 853, and cases ^ See Weaver v. State (Tex. Cr. 
 cited in note. App.), 24 S. W. Eep. 648. 
 
 * Fitzgerald v. Cavin, 110 Mass. 153 
 
WRONGS AFFECTING PEKSONAL SECTJEITT. 49 
 
 injury ; ' and a blow unlawfully aimed at one person will give 
 ground for a right of action to another upon whom it falls.^ 
 
 Self-protection. — An attempt to commit a battery may al- 
 ways be resisted by the person assaulted, but under this restric- 
 tion : that he must not employ a degree of force not called for in 
 self-defense ; he must not inflict serious injury uiinecessarily in 
 repelling an attack which threatens him with slight injury, 
 nor take life unless life or limb is in danger, nor even then if 
 by retreating he can safely avoid it.' The employment of ex- 
 ■cessive force will render him liable to the person assaulting 
 him; and in such a case both may have suits, one for the orig- 
 inal assault and the other for the excessive force made use of 
 in repelling it.* In the defense of female chastity, force may 
 .go to the extent of taking the life of the assailant, if a resort 
 to that extreme measure seems to be necessary.* 
 
 Words do not constitute an assault or justify the employment 
 of force on the pretense of self -protection.* But words grossly 
 insulting to females, or spoken in the presence of one's family 
 with the purpose of special aggravation, might so far constitute 
 a, breach of the peace as to justify the employment of force for 
 the purpose of putting an immediate stop to so brutal an out- 
 Tage. 
 
 Such force as one may employ in his own defense he may 
 also make use of in defense of any member of his family.' But 
 the right does not go so far as to admit of the taking revenge 
 for wrongs suifered. Punishment must be left to the law.^ 
 
 An assault and battery in defense of property may be justi- 
 
 1 Scott V. Shepherd, 3 "W. Bl. 893, 5 People v. Angeles, 61 Cal. 188. 
 
 4 Sm. L. C. 796. And if one rides a * However abusive they may be. 
 
 bicycle carelessly and runs against Goldsmith v. Joy, 61 Vt. 488, 4 L. E. 
 
 a pedestrian, this is an assault. Mer- A. 500; Friederich v. People, 147 111. 
 
 cer V. Corbin, 117 Ind. 450, 3 L. R. A. 310. 
 
 231. 'Patten v. People, 18 Mich. 314; 
 
 2 James v. Campbell, 5 C. & P. 873. Com. v. Malone, 114 Mass. 395. And 
 And see People v. Eaher, 93 Mich, an assault upon a man's dwelling, 
 165,' 31 Am. St. Eep. 575; Tahnage v. with intent to injure him or any of 
 Smith, 101 Mich. 140. his family, may be met in the same 
 
 ' See Keep v. Quallman, 68 "Wis. way as an assault upon himself or 
 
 451; People v. Pearl, 76 Mich. 207, any of them. Wilson v. State, 30 
 
 4 L. E. A. 709; State v. Dixon, 75 Fla. 334, 17 L. R. A. 654. 
 
 N. C. 275. 8 0ockoroft v. Smith, 11 Mod. 43; 
 
 *Dole V. Erskine, 35 N. H. 503. State v. Gibson, 10 Ired. 214. 
 4 
 
50 WEONGS AJ-FECTING PEESONAL SECUEITT^ 
 
 fied, and if possession is actually invaded the intruder inay bsf 
 removed by force, subject to the restriction that no more force 
 must be employed than is needful for the purpose.^ But force- 
 is not to be employed to recover a right which another is ia 
 possession of and now disputes, except in such extreme cases- 
 as would justify force in preventing crime or arresting offend- 
 ers.^ 
 
 The setting of spring-guns or similar devices as a defense- 
 against trespassers, though not in itself unlawful,' might result 
 in serious consequences to the person making use of them if ai 
 trespasser were to be seriously injured thereby. The fact that 
 such an injury resulted would be evidence that excessive force 
 was employed.* The same may be said of the employment of 
 dogs known to be ferocious, or of any means calculated to in-, 
 flict serious injuries without warning as a defense against mere 
 trespassers.' The question of excessive force would be one of 
 fact.* 
 
 False imprisonment. — False imprisonment consists in im- 
 posing by force or threats an unlawful restraint upon a man's 
 freedom of movement.' Submission to an unfounded claiia! 
 or show of authority may be sufficient to make it out ; as where- 
 an officer with void process, or none at all, notifies a person that 
 he arrests him, and the person so notified submits and goes 
 with the officer : * or where one who makes claim asrainst an- 
 other stops his egress from a room to compel him to satisfy it.*' 
 But merely turning one aside from the way he was going does 
 not by itself constitute an imprisonment.'" 
 
 The justification for what would otherwise be false imprison- 
 ment is made out in some cases by showing that the parties 
 stood to each other in certain relations ; as that of parent to* 
 
 1 Abt V. Burgheim, 80 111. 93; Har- , ' Bird v. Jones, 7 Q. B. 742; Fother- 
 rison v. Harrison, 43 Vt. 417. Ingham y. Adams Exp. Co., 36 Fed.. 
 
 2 ChurchiU v. Hulbert, 110 Mass. Eep. 253, 1 L. R. A. 474. 
 
 43, 14 Am. Eep. 578. 8 Brushaber v. Stegemann, S2 Mich. . 
 
 3 State V. Moore, 31 Conn. 479. 266. Actual contact is not neces- 
 *Bird V. Holbrook, 4 Bing., 628; sary. Grainger v. HUl, 4 Bing. iST. C.- 
 Hooker V. Miller, 87 Iowa, 618, 18 213. 
 
 Am; Eep. 18. 9 gee Hildebrand v. McCrum, 101 
 
 6 See infra, oh. X. Ind- 61; Smith v. State, 7 HiunpK 
 
 6 See Hanson v. European, etc. R. 43. 
 
 E. Co., 63 Me. 84, 16 Am. Eep. 404; WBird v. Jones, supra. 
 
 Com. V. Bush, 112 Masa 380. 
 
WEONGS AFFECTING PEESONAL SECURITY. 51 
 
 cMld, guardian to ward, master to apprentice, teacher to pupil, 
 bail in legal proceedings to principal. This last relation is 
 commonly provided for by statute, and a power of arrest given 
 under certain circi(mstances and on the production of specified 
 papers.' In the other cases restraints are admissible within 
 such limits as the parent, guardian, master or teacher, in the 
 exercise of a sound discretion, may decide to be necessary ; and 
 in the case of the parent, personal chastisement may accom- 
 pany the restraint, subject to the limitation that it must be 
 moderate, and dictated by reason, not by passion.- For excess- 
 ive chastisement the parent would be subject to criminal prose- 
 cation. A guardian has, power to control the movements of 
 his ward, corresponding to that of parent as to his child, but 
 not a corresponding power of chastisement, except, perhaps, 
 where the ward in extreme youth is taken into the guardian's 
 family. For the authority of a master over an apprentice the 
 statute under which the relation is formed must be examined. 
 The restraining authority of teacher over pupil, and the inci- 
 dental right to inflict chastisement, correspond closely to those 
 of parent over child. Excessive chastisement, or even unrea- 
 sonable restraint, might render the teacher liable to both crim- 
 inal prosecution and a suit by the child for the recovery of 
 damages.' 
 
 The cases are of constant occurrence in which, for some tem- 
 porary purpose, one places himself under the control of another 
 and must submit to restraint as the other shall deem needful. 
 Persons being transported by common carriers may be in- 
 stanced. But the control must not go beyond what the circum- 
 stances make reasonable.* 
 
 The charge of false imprisonment, when made against a min- 
 isterial officer, is likely to be met by a justification under legal 
 process. Speaking generally, the requisites to legality are 
 that the process must have been issued by a court or officer 
 having authority of law to issue such process, and there must 
 be nothing on its face to apprise the officer that in the particu- 
 lar case the authority was wanting. When the process will 
 bear this test the officer wUl be protected in serving it.^ 
 
 . 1 See Cooley, Const. Lira. 341, note, < See Bro-wn v. Howard, 14 Johns. 
 
 2 Johnson v. State, 2 Humph. 283. 119. 
 
 3 Lander v. Seayer, 82 Vf 114, 76 5 See infra, 185, 186. 
 Am. Dec. 156, and cases cited in note. 
 
62 -WEONGS AFFECTING PERSONAL SECtJEITT. 
 
 Process may be void: 
 
 1. Because it does not emanate from the court or officer pur- 
 porting to issue it. It may be forged, or it may be filled out 
 and delivered to the oificer by some unauthorized person ; as 
 when a justice of the peace signed blank warrants and delivered 
 thein to a third person to be filled out and issued, when, under 
 the law, no one but himself could issue them.^ 
 
 2. Because it proceeds from a court or magistrate having by 
 law no jurisdiction of the subject-matter, or only a limited ju- 
 risdiction, which in the particular case has been exceeded. 
 
 3. Because it emanates from an inferior court or officer, whose 
 jurisdiction is never presumed but must be shown, and is not 
 shown on the face of the proceedings : as where a magistrate 
 issues a warrant for committing one to prison in punishment 
 of a crime without reciting therein an accusation, a trial and a 
 conviction.^ 
 
 4. Because it is tested on some day which by statute is dies 
 non for such process, or because it fails to comply with some 
 statutory requisite and shows the defect on its face. There 
 may be other defects, to be noted hereafter. Void process can 
 protect no one acting under it. 
 
 In some cases arrests may be made without legal process. 
 They are cases in which it is presumable that some serious 
 crime which the arrest would prevent might otherwise be com- 
 mitted, or a< criminal might escape punishment for a serious 
 offense already committed. But a warrant of arrest should 
 always, when reasonably practicable, be obtained from a mag- 
 istrate having jurisdiction to issue it on a showing of cause 
 therefor. This is but a reasonable requirement in protection 
 of individual liberty. One who takes the responsibUity of an 
 arrest without such a warrant should be able to show in justi- 
 fication, either — 
 
 1. A felony actually committed, and facts which have comfe 
 to his knowledge which justify him in suspecting the person 
 arrested to be the felon; or 
 
 2. A felony being committed and that the arrest was made 
 to prevent it.' If one errs in these particulars, it is better that 
 
 1 People V. Smith, 20 Johns. 63; 2 Clayton v. Scott, 45 Vt 386. 
 Eafflerty v. People, 69 IlL 111, 73 lU. SRuloff v. People, 45 N. T. 213; 
 37, 18 Am. Rep. 601. Neal v. Joyner, 89 N. C. 287. And 
 
WEONGS AFFECTING PERSONAL SEOUEITT. 53 
 
 he be left to take the consequences than that they be visited 
 upon an innocent party who is improperly arrested.' The ac- 
 tion of a peace officer is - regarded with more indulgence than" 
 that of a private citizen, and he may be excused for making an 
 arrest on reasonable grounds for believing that a felony has been 
 committed, though in fact the belief proves to be erroneous.^ 
 
 Forcible breaches of the peace in affrays, riots, etc., are placed, 
 as regards arrests without warrant, on the footing of felonies.' 
 !N"otorious cheats and gamblers plying their vocations on the 
 public highways or in other public places, persons making 
 themselves a public danger by disregarding the orders of If^gal 
 boards of health and in other like ways, may also be arrested 
 without warrant, but cftily for the purpose of being taken 
 promptly before a court or magistrate for a hearing upon com- 
 plaint made against them.* 
 
 Insane persons may be restrained of their liberty to prevent 
 the commission of mischief by them. This may be done as a 
 matter of self-defense by members of their families, and also 
 for the good of the persons arrested and in order that they may 
 be given the treatment appropriate to their condition. In any 
 case in which the insanity is matter of doubt, the party put- 
 ting any restraint upon the individual liberty takes upon him- 
 self the responsibihty of justifyitig it, unless he first procures 
 from a competent court an adjudication that mental compe- 
 tency is wanting. But even this would not justify imprison- 
 ment beyond what was deemed needful for the benefit of the 
 party himself, unless his hberty was dangerous to others.' In 
 many cases insane persons are perfectly harmless and should 
 only be restrained for the better treatment of their malady. 
 
 Malicioas prosecution. — An action as for a tort will lie 
 when there is a conourrenpe of the following circumstances : 
 
 1. A suit or proceeding of judicial nature has been instituted 
 without any probable cause therefor.* 
 
 see Maliniemi v. Gronlund, 92 Mich, an officer may not arrest for a past 
 
 223, 31 Am. St. Eep. 576. breach not committed in his pres- 
 
 'See HoUey v. Mix, 3 Wend. 350, en^e. People v. Haley, 48 Mich. 495. 
 
 20 Am. Dec. 703; State v. Holmes, 48 < 3 Hawk. P. C. c. 13, § 20; Wiltsa 
 
 N. H. 377. V. Holt, 95 Ind. 469. 
 
 2 Marsh v. Loader, 14 C. B. (N. S.) ^See Look v. Deen, 108 Mass. 116, 
 
 535; State V. Underwood, 75 Mo. 330. 11 Am. Eep. 338; Anderson v. Bur- 
 
 ! Phillips V. Trull, 11 Johns. 486; rows, 4 C. & P. 210. 
 
 Hayes v. Mitchell, 80 Ala. 183. But * It is not a defense that the com- 
 
54' "WEONGS AFFECTING PEESONAX. SECUEITT. 
 
 2. The motive in instituting it was malicious. 
 
 3. Tlie prosecution has resulted in the acquittal or discharge 
 of the accused.' 
 
 Probable cause involves a consideration of what the facts are 
 and what are the reasonable deductions from the facts. It is 
 therefore a mixed question of law and fact.^ If the facts are 
 not in dispute, or are specially found by a jury, the court will 
 determine whether they make out a case of probable cause.' 
 A mere belief that cause exists is not suificient, for one may 
 believe on suspicion and suspect without cause ; there must be 
 such grounds of belief as would influence the mind of a reason- 
 able person.* Bat when one is complaining under circum- 
 stances calculated to produce excitement, and especially when 
 he is instituting a prosecution for a wrong suffered by himself, 
 some allowance must be made for want of coolness and impar- 
 tiality ; all that can fairly be required is that he shall act as a 
 reasonable and prudent man would be expected to act under 
 like circumstances.' The test of probable cause is to be applied 
 as of the time when the action was taken, not as of any subse- 
 quent time when his knowledge may have become more com- 
 plete and accurate, and his belief perhaps different.* 
 
 Advice of counsel. — That the party acted upon the advice 
 of counsel is always a material fact in his favor, provided the 
 action was taken after a fuU and fair disclosure of aU the f acts,^ 
 
 plaint upon which the warrant was 151; Driggs v. Burton, 44 Vt. 124; 
 
 issued failed to state an o£Eense and Fagnan v. Knox, 66 N. T. 535; Faris 
 
 that the warrant was void on its v. Starke, SB. Mon. 4; Shannon v. 
 
 face. Lueck v. Heisler, 87 Wis. 644, Jones, 76 Tex. 141; Anderson v. 
 
 58 N, W. Rep. 1101. How, 116 N. Y. 336; McClafEerty v. 
 
 1 Vanderbilt v. Mathis, 5 Duer, 804; Philp, 151 Pa. St 86. 
 
 Stoddard v. Roland, 31 S. C. 342; sCole v. Curtis, 16 Minn. 182; 
 
 Vennum v. Huston, 38 Neb. 293, 56 Bourne v. Stout, 62 Ili 261. 
 
 N. W. Rep. 970; Collins v. Campbell eoelegal v. Highley, 3 Bing. N.C. 
 
 (R. 1), 31 AtL Rep. 332. 950; Galloway v. Stewart, 49 Ind. 
 
 ^Lewton v. Hower (Fla.), 16 S. E. 156, 19 Am. Rep. 677. 
 
 Eep. 616. 7Le Clear v. Perkins (Mich.), 26 
 
 SBusst V. Gibbons, 6 H. & N. 912; L. R. A. 627; Barhight v. Tammany, 
 
 Broad v. Ham, 5 Bing. N. C. 723; 158 Pa. St. 545; Ravenga v. Mack- 
 
 Sartwell v. Parker, 141 Mass. 405; intosh,3B.&C.698: Lytton v.Baii-d, 
 
 Stewart v. Sonneborn, 98 U. S. 187; 95 Ind. 349; Motes v. Bates, 80 Ala. 
 
 Fine v. Navarre (Mich.), 62 N. W. 383. It is enough if all facts known 
 
 Rep. 142. are disclosed. Johnson v. Miller, 69 
 
 <Mowry v. Whipple, 8 R. I. 360; Iowa, 563, 58 Am. Rep. 231. But the 
 
 Shaul V. Brown, 38 la. 37, 4 Am. Rep. advice of counsel on a fuU statement 
 
WEOUGS APFECTING PERSONAL SECUEITY. 55 
 
 and the advice acted upon was that of counsel learned in the 
 law and not of a layman or an inferior magistrate.^ 
 
 Tlie want ofprohaile cause will not be presumed : the plaint- 
 iff must show it.^ Nor will the existence of malice prove it, 
 for this might be a result of the wrong complained of .^ An 
 acquittal and discharge by a magistrate having a power to 
 bind over for trial would be evidence of want of probable 
 cause, but not conclusive.* So would be the ignoring by a 
 ^rand jury of a bill of indictment for the supposed offense.-' 
 If the party prosecuted was convicted in a lower court but ac- 
 quitted on appeal, the conviction wiU be held conclusive of 
 probable cause.* 
 
 Malice. — The burden, of proving that the prosecution was 
 malicious is also upon the plaintiff.' It may be inferred from 
 proof of want of probable cause, but the inference is not a 
 necessary one.' Malice in the legal sense is made out by show- 
 ing that the proceeding was instituted from any improper or 
 wrongful motive;' as, for example, to compel the surrender of 
 property or papers to which the prosecuting party had no 
 better right than the other.^" 
 
 The end of the proceeding. — The prosecution must have come 
 to an end before suit for maliciously instituting it is brought. 
 And in general this should be by final acquittal." Discontin- 
 
 of the facts is no defense to one who 376. Unless based on fraud. Olson 
 
 did not believe the accused guilty v. Neal, 63 Iowa, 214. 
 
 of the offense charged. Johnson v. 'Dietz v. Langfltt, 63 Pa. St. 234: 
 
 Miller, 83 Iowa, 693, 47 N. W. Eep. Flickinger v. Wagner, 46 Md. 581. 
 
 903. ePullen t. GUdden, 68 Me. 559; 
 
 iBeihoferv.Loeffert,159Pa.St.374; Falvey v. Faxon, 143 Mass. 284; 
 
 Marks v. Hastings, 101 Ala. 165, 13 Leahey v. March, 155 Pa. St. 458. 
 
 So. Eep. 297; Womack v. Fudicker, » Page v. Gushing, 38 Me. 533; Harp- 
 
 47 La. Ann. — , 16 Sa Eep. 645. ham v. Whitney, 77 IlL 32; Lunsford 
 
 2 The failure of the prosecution is v. Dietrich, 93 Ala. 565, 9 So. Eep. 
 
 not enough to show want of probable 308. 
 
 cause. Boyd v. Cross, 35 Md. 194 J« See Kimball v. Bates, 50 Me. 308. 
 
 'Williams T. Taylor, 6 Bing. 183. Or to enforce payment of a debt. 
 
 <See Eankin v. Crane (Mich.), 61 Morgan v. DuflEy (Tenn.), 30 S. W. 
 
 N. W. Eep. 1007. Eep. 735. Further, see Andrews' 
 
 5 See Apgar v. Woolston, 43 N. J. Stephen's Pleading, 137, note. 
 
 L. 56; Sharpe v. Johnston, 76 Mo. n Bacon v. Towne, 4 Cush. 217; 
 
 ■660; Brady v. StUtner (W. Va.), 21 Boyd v. Cross, 35 Md. 194. See Davis 
 
 S. E. Eep. 729. v. Stuart, 47 La. Ann. — , 16 So. Eep. 
 
 «Griflfs V. Sellars, 4 Dev. & Bat. 871. 
 176; Severance v. Judkins, 78 Me. 
 
56 WEONGS AFFECTING PEESONAL SECUKITT. 
 
 uance on a compromise will not be sufficient •/ but a dismissal, 
 though it be on technical defects, will answer the requirement 
 of the law in this regard.- 
 
 What is above said has relation to malicious criminal or 
 quasi-OTiminal proceedings. In civil suits the party whose case 
 has no suflBcient cause brings it for the most part under a lia- 
 bOity for costs which is supposed to operate as a suflBcient re- 
 straint. But there are some civil proceedings, the institution 
 of which maliciously and without probable cause may support 
 a right of action by reason of the special injury likely to re- 
 sult. One of these is where proceedings are taken to throw a 
 trader into bankruptcy.' Another is where suit is begun by 
 arrest of the defendant * or by attachment of his property;* 
 and still another where the purpose of the proceeding is to 
 have the respondent adjudged insane. If any such proceeding 
 is not only groundless, but malicious, the right to redress would 
 be as clear as in cases in which crime is charged.* 
 
 Abuse of legal process may support a special action on the 
 case, as where judgment is entered up and execution taken out 
 after the demand sued for has been satisfied ; ' or where the 
 plaintiff purposely continues to prevent a party arrested from 
 procuring bail until he has given assent to some demand the 
 plaintifif had no legal right to make,' and the like. In such 
 cases, where the action complained of was clearly illegal, proof 
 of malice is important only as it may tend to increase the re- 
 
 iMoCormickv. Sisson, 7 Cow. 715; ities are not agreed. That it will 
 
 Hamilburgh v. Shepard,' 119 Mass. not, see Mayer v. "Walter, 64 Pa. St. 
 
 30. 283, and cases cited; Terry v. Davis, 
 
 2 See Clark v. Cleveland, 6 Hill, 114N. C. 31. And this is the English 
 
 344; Apgar v. Woolston, 43 N. J. L. rule. But many late American de- 
 
 57. cisions sustain the proposition that 
 
 'See Chapman v. PickersgiU, 3 an action may be maintained for 
 
 Wils. 145; Whitworth v. Hall, 3 B. the malicious institution, without 
 
 & Ad. 695; Quartz-Hill Co. v. Eyre, probable cause, of any civil suit 
 
 L. E. 11 Q. B. D. 674. which has terminated in favor 
 
 ^Collinsv. Hayte, 50m.337. of the defendant See Closson v. 
 
 f Preston v. Cooper, 1 DilL 589; Staples, 43 Vt. 309, 1 Am. Hep. 316; 
 
 HoUiday v. Sterling, 63 Mo. 331. Smith v. Burrus, 106 Mo. 94» 13 L. 
 
 SLockenour v. Sides, 57 Ind. 360, E. A. 59; Antcliff v. June, 81 Mich 
 
 36 Am. Eep. 58. Whether an action 477, 10 L. E. A. 621, 21 Am. St Eep. 
 
 •■■will lie for malicious prosecution of 533. 
 
 a civil suit when there was no arrest ' Barnett v. Eeid, 51 Pa. St 190. 
 of the person, or seizure of property, 8 Grainger v. Hill, 4 Bing. N. C. 
 
 is a questiqn on which the author- 313; Krug v. Ward, 77 111 603. 
 
■WEONGS AFFECTING PEESONAL SEOUEITT. 57 
 
 covery.* Bat the action may lie -where what has been done 
 "was illegal only because the process of a court has been made 
 use of for some other than the ostensible purpose, and in order 
 to obtain some advantage that its legitimate use would not 
 have secured; as where by a subpoena, on pretense of desiring 
 his evidence, a party is brought within the jurisdiction of a 
 court whose process would not otherwise reach him, and is 
 there sued ; ^ or where process of extradition from one state 
 into another is obtained with no purpose of following, it up, but 
 to facilitate the prosecution of a private claim in a jurisdiction 
 not legitimately available.' But in any such case the court 
 whose process was impropeHy made use of would be expected, 
 in furtherance of justice, to set it aside on a showing of the 
 facts. 
 
 Officer serving Ms own process. — The service by an officer 
 of process in a suit to which he is a party to the record or in 
 interest is a nullity* and wUl be set ^aside on motion, but will 
 not be ground for an action unless it was made by an arrest 
 or accompanied by a seizure of property. 
 
 "Where a person for any reason is privileged from arrest, the 
 privilege is one of which he may avail himself or not, at his 
 pleasure. If he elects to do so, his remedy is to have an arrest 
 made in disregard of it set aside on motion.' 
 
 1 See Stewart v. Cole, 46 Ala. 646. * See Singletary v. Carter, 1 Bailey, 
 
 2 See Slade v. Joseph, 5 Daly, 187; 467; Ford v. Dyer, 36 Miss. 243; Fil- 
 McNab V. Bennett, 64 lU. 15& kins v. O'SulUvan, 79 IlL 534. 
 
 3 See State v. Hawes, 4 Am. L. T. sgee Smith v. Jones, 76 Me. 138 
 Eep. (N. S.) 534; Compton v. Wilder, and cases cited, 49 Am. Kep. 198. 
 
 40 Ohio St. 130. 
 
CHAPTER TU. 
 
 SLANDER AND LIBEL. 
 
 Akin to tlie wrong of malicious prosecution are tlie wrongs 
 designated as slander and Ubel.^ 
 
 Slander and libel are different names for the same wrong ac- 
 complished in different ways. Slander is oral defamation pub- 
 lished without legal excuse, and libel is defamation published 
 by means of writing, printing, pictures, images, or anything 
 that is the object of the sense of sight.' 
 
 Defamation is a^false publication calculated to bring one into 
 disrepute. 
 
 Publication. — There is no legal wrong until the defamatory 
 charge or representation is published; that is, until it is put 
 before one or more third persons.' One's reputation cannot 
 presumably be impaired when the false charge is made only to 
 the party himself; for though it may be annoying, aggravat- 
 ing, and possibly injurious to him in its effect upon his mind, 
 and indirectly upon his business, stUl there is as yet no publica- 
 tion.* And delivering a defamatory writing to the party him- 
 self is no publication.' 
 
 It is further necessary that the publication be made by the 
 
 1 A malicious prosecntion is a most publication in this sense. Sesler v. 
 
 «fiEective species of defamation, for Montgomery, 78 CaL 486, 3 L. E. A 
 
 the defamatory matter is not only 653; Wennhak v. Morgan, L. E. 20 Q. 
 
 published, but is made more formal, B. D. 635. A slander spoken in a lan- 
 
 and apparently authoritati-*^e, by the guage not understood by the hearer 
 
 machinery of the law being made is no publication. See Sullivan v. 
 
 use of for that purpose. Sullivan, 48 IIL App. 435; Kiene v. 
 
 2 See Townshend, Slander and EufE, lIowa,482; Hurtert v.Wienes, 
 Libel, § 314, note; Newell on Defa- 37 id. 134 
 
 mation, p. 33. And see Randall v. * Spaits v. Poundstone, 87 Ind. 523, 
 
 Evening News Asso., 79 Mich. 266, 7 44 Am. Rep. 773; Warnock v. Mitch- 
 
 L. R. A. 309. eU, 43 Fed. Rep. 428. But if a libeV 
 
 3 It is not sufficient that one printed ous letter is sent by mail to an Ulit- 
 a libel. Sproul v. Pillsbury, 72 Me. 30. erate person, who is obliged to have 
 
 < A communication from husband it read by a third person, this is a pub- 
 to wife, not in the presence of any lication. Allen v. Wortham, 11 Ky. 
 third person, does not constitute a L. Rep. 697. Otherwise, if the sender 
 
SLASDEK AND LIBEL. 59 
 
 <lefamer. A defamatory -writing is no libel so long as it re- 
 mains in the possession of tlie composer and is seen by no one 
 ■else ; but the publication is in law attributable to him if it falls 
 into the hands of others, for it Avas he "who originated the 
 wrong and was the naeans of its becoming injurious. And if 
 the party who is falsely accused to his face, or to whom a libel- 
 ous letter is sent, repeats and makes public the charge, this is 
 liis own act and he alone is responsible for it.^ 
 
 Publication implies Tolition and actual or presumed wrong- 
 ful intent. Therefore if one, acting in a public or quasi-Tpxiblic 
 •capacity, or as agent of another, receives a defamatory letter 
 to carry and deliver to a third person, and he does so in good 
 faith and without knowledge of the contents,'' this is no publi- 
 ■cation by him, though it would be by the sender when delivery 
 is made. In general, however, all persons in any manner in- 
 strumental in making or procuring to be made the defamatory 
 publication are jointly and severally responsible therefor. The 
 question whether the principal assented, either expressly or 
 impliedly, to the publication of an injurious charge by the 
 agent, so as to make him liable as well as the agent, is to be 
 ■detennined by the nature of the agency, the course of the busi- 
 ness, etc.* 
 
 The publisher of a newspaper is responsible for the publica- 
 tion of libelous matter therein, though made without his knowl- 
 edge, and contrary to regulations prescribed by him for the 
 management of the paper.* 
 
 Words actionable per se. — Publications are actionable per 
 se when an action will lie for making them without proof of 
 a,ctual injury, because their necessary or natural and proximate 
 
 4id not know that the receiver could ized repetition by another. Elmer 
 
 not read. State v. Syphrett, 37 S. C. v. Fessenden, 151 Mass. 359, 5 L. E. A. 
 
 39, 13 Am. St. Eep. 616. ' 734 
 
 1 As where a woman who has re- ^ ^g an express agent, or a servant. 
 
 <5eived a libelous letter shows it to *The proprietor is presumed to 
 
 her husband. WUcox v. Moon, 64 have assented to the reports, adver- 
 
 Vt. 450, 15 L. K. A. 760. A repeti- tisements, etc., published by the 
 
 tion in the presence of a third per- managing agent. Philadelphia, etc. 
 
 son, at the request of the plaintiff, R. R. Co. v. Quigley, 21 How. 202. 
 
 of words spoken to the latter, is not * Perrett v. Times (newspaper), 25 
 
 a. publication. Heller v. Howard, 11 La. Ann. 170; Scripps v. Reilly, 35 
 
 IlL App. 554 The author of a slander Mich. 371, 24 Am. Eep. 575, 38 Mich, 
 
 is not responsible for its unauthor- 10; Haines v. Schultz, 50 N. J. L. 481. 
 
60 ' SLANDEE AND LIBEL. 
 
 consequence is to cause injury to the person of whom they are 
 spoken, and therefore injury is to be presumed. In other cases, 
 where no such presumption is justifiable, the publications are 
 only actionable on averment and proof that injury which the 
 law can notice actually followed as a natural and proximate 
 consequence. 
 
 Spoken words as a cause of action have been classified as 
 follows : " 1. "Words falsely spoken of a person which impute 
 to the party the commission of some criminal offense involving 
 moral turpitude, for which the party, if the charge is true, may 
 be indicted and punished. 2. Words falsely spoken of a person 
 which impute that the party is iniected with some contagious 
 disease, where, if the charge is true, it would exclude the party 
 from society. 3. Defamatory words falsely spoken of a person 
 which impute to the pa'rty unfitness to perform the duties of 
 an office or employment of profit, or the want of integrity in 
 the discharge of the duties of such an office or employment. 
 4. Defamatory words falsely spoken of a party which prejudice 
 such party in his or her profession or trade. 5. Defamatory 
 words falsely spoken of a person, which, though not in them- 
 selves actionable, occasion the party special damage." ' Of 
 these five classes the first four are of words actionable per se; 
 the fifth embraces cases which are actionable only when special 
 damage is averred.^ 
 
 Word& imputing an indictable offense. — It is not always 
 prvma facie actionable to impute to one an act which is subject 
 to indictment and punishment. The law is well settled that 
 "in case the charge, if true, will subject the party charged to 
 an indictment for a crime involving moral turpitude, or subject- 
 him to an infamous punishment,' then the words will be in 
 themselves actionable." * 
 
 iMr. Justice ClifiEord, in Pollard hard labor, is an infamous piinish- 
 
 V. Lyon, 91 U. S. 235. ment. Maokin v. United States, 117 
 
 2 In Louisiana the courts are not U. S. 348. So is any punishment 
 bound by the distinction of the com- that involves the loss of civil or po- 
 mon law as to words actionable per litical privileges. Cooley, Const, 
 se and not actionable per se. See Law, 39. And see United States v. 
 Warner v. Clark, 45 La. Ann. 863, 21 Smith, 40 Fed. Eep. 755; Ee Butler, 
 L. E. A. 503; Tarleton v. Lagarde, 46 84 Me. 35, 17 L. R. A. 764. 
 
 La- Ann. 1368, 36 L. R. A. 325. ^Brooker v. Coffin, 5 Johns. 188, 4 
 
 3 Imprisonment in a state prison Am. Dec 337; Filber v. Dautermann, 
 or penitentiary, with or without 26 Wis. 518; Davis v. Brown, 27 Ohio 
 
SLANDER ASD LIBEL. 
 
 61 
 
 But, whatever the moral turpitude involved, it is not action- 
 able ^e/* se to charge an act -which is not indictable.' There- 
 fore, at common law, to charge a female with being a common 
 prostitute is not actionable without averment of special dam- 
 age.'' But this rule is changed in many states by statutes mak- 
 ing it actionable to impute unchastity to a female.' 
 
 The charge must be taken in. its entirety. If the whole 
 charge, taken together, does not convey to the minds of those 
 who hear it an imputation of criminal conduct, it is no slander. 
 Thus, to say of one : " He is a thief ; he has stolen my land," is 
 not slanderous, land not being the subject of larceny.^ And if 
 the words spoken were not intended to have a slanderous 
 meaning, and were not understood in that sense by the hearers, 
 they are not actionable.^ 
 
 St. 336. And see Thibault v. Ses- 
 sions, 101 Mich. 279, 59 N. W. Eep. 634 
 In England the offense imputed need 
 not be indictable. Wood v. Bea-van, 
 L. R 11 Q. B. D. 609. In Massachu- 
 setts a similar rule prevails, it being 
 "there held that ■words are actionable 
 which charge an offense which, if 
 proved, may subject the party falsely 
 accused to a punishment which 
 would bring disgrace upon hina. 
 MiUer v. Parish, 8 Pick. 384. In Ver- 
 mont it seems that the words are 
 .actionable only when the imputed 
 crime involves moral turpitude g,nd 
 subjects the party to corporal pun- 
 ishment. Posnett V. Marble, 63 Vt. 
 481, 11 L. E. A. 162. 
 
 1 Field V. Colson, 93 Ky. 347; Alfele 
 V. Wright, 17 Ohio St. 238, 93 Am. 
 Dec. 615. Words charging merely 
 an intention to commit an offense 
 are not actionable. Fanning v. 
 €hace, 17 R. L 388, 13 L. E. A. 134; 
 Mitchell V. Sharon, 51 Fed. Eep. 434. 
 But the grade of the crime is imma- 
 teriaL Young v. Miller, 3 Hill, 31. 
 
 2Brooker v. Coffin, supra; Pollard 
 V. Lyon, supra; Underbill v. Welton, 
 S3 Vt. 40. And see Douglas v. Doug- 
 las (Idaho), 38 Pac. Eep. 934. In some 
 states this rule has been rejected. 
 
 See'Bamett v. Ward, 36 Ohio St. 107, 
 38 Am. Eep. 561; WiUiams v. Mc- 
 Manus, 38 La. Ann. 161, 58 Am. Eep. 
 171; Kelley v. Flaherty, 16 E. I. 334. 
 And in those states where fornica- 
 tion is made punishable by statute 
 it is actionable to charge it. See 
 Mayer v. Schleiohter, 29 Wis. 646: 
 Haynes v. Eitchey, 30 Iowa, 76, 6 
 Am. Eep. 643. 
 
 3 See Colby v. McGee, 48 111. App. 
 294; Freeman v. Sanderson, 133 Ind. 
 264; Hemmens v. Nelson, 138 N. Y. 
 517, 20 L. E. A. 440; Hitchcock v. 
 Caruthers, 82 Cal. 523; Barr v. Birk- 
 ner (Neb.), 63 N. W. Eep. 494, 
 
 " See Stitzell v. Esynolds, 67 Pa. St. 
 54, 5 Am. Rep. 396; Morgan v. Hal- 
 berstadt, 60 Fed. Eep. 592; Trimble 
 V. Foster, 87 Mo. 49, 56 Am. Eep. 440; 
 Ogden V. Eiley, 3 Green's L. 186, 35 
 Am. Dec. 513; Webster v. Sharpe 
 (N. C), 21 S. E. Eep. 912. If the 
 words iinpute a crime, the disbelief 
 of the hearers as to the truth of the 
 charge does not affect the case if it 
 is evident that it was the intention 
 to charge a crime. Eea v. Harring- 
 ton, 58 Vt. 181. And see Pollock v. 
 Hastings, 88 Ind. 348. 
 
 5 See Irlbeck v. Bierle, 84 Iowa, 47; 
 Stroebel v. Whitney, 81 Minn. 384; 
 
62 SLANDER AND LIBEL. 
 
 The charge of criminal conduct for which punishment has 
 been inflicted, or which has been pardoned, or a prosecution 
 for which has been barred by the statute of limitations, will 
 support an action under corresponding circumstances to those- 
 which support one where the charge,' if true, would stiU sub- 
 ject the party to punishment. It is not, therefore, the expos- 
 ure to the risk of prosecution and punishment that might follow 
 from the charge, but the disgrace of the scandal that consti- 
 tutes the injury.' 
 
 Words imimting contagious or infectious diseases. — Perhaps^ 
 none but venereal diseases are embraced within this rule at the 
 present day ; ^ at any rate it is unlikely that the list would be 
 extended to include more than those contagious or infectious 
 diseases which have their origin in disreputable practices. Such 
 words are held actionable because they tend to exclude the 
 party from society. The charge, therefore, must impute the 
 present existence of the disease.' 
 
 Words damaging as respects office or profession. — A charge 
 against a professional man of general ignorance or incom- 
 petency is an illustration of this class.* In this class of cases- 
 Ritchie V. Stenius, 73 Mich. 563; charge will defeat the action. Baum 
 Trabue v. Mays, 3 Dana, 138, 28 Am. v. Clause, 5 Hill, 196. 
 Dec. 61. It must clearly appear that 2 gee "Watson v. McCarthy, 3 Kelly, 
 those who heard the words under- 57, 46 Am. Dea 380; Irons v. Field, 9- 
 stood that they were used in a re- E. I. 216; Kaucher v. Blinn, 29 Ohio- 
 ' stricted sense. Delaney v. Eiietel, St. 62, 23 Ann. Rep. 727. 
 81 Wis. 353, 51 N. W. Rep. 559; EUis ' Carslake v. Mapledoram, 2 T. R- 
 V. Whitehead, 95 Mich. 105, 54 N. W. 473; Bruce v. Soule, 69 Me. 562; Will- 
 Rep. 753. But the fact that certain lams v. Holdredge, 22 Barb. 396; 
 persons heard only the actionable Watson v. McCarthy, supra. 
 words, and not that part of the state- < As to say of a physician that he 
 ment which robbed them of their is "nothing but a butcher," and "I 
 slanderous nature, does not give a wouldn't have him to a dog; he is no- 
 ground for action. Kidd v. Ward good." Crnikshank v. Gordon, 118 
 (Iowa), 59 N. W. Rep. 379. N. Y. 178. See, also, De Pew v. Rob- 
 
 'See Carpenter v. Tarrant, Cas. inson, 95 Ind. 109; Rice v. CottreU, 5- 
 Temp. Hardw. 339; Rea v. Harring- R. L 340; Tarleton v. Lagarde,,26 L. 
 ton, supra; Stewart v. Howe, 17 HL R. A. and cases cited in note. To- 
 71. To charge one with having been charge a clergyman with inconti- 
 a convict is actionable per se. See nence (Gallwey v. Marshall, 9 Exch. 
 Smith V. Stewart, .5 Pa. St. 373. But 294); or with drunkenness (McMillan 
 if words plainly point back to the v. Birch, 1 Binn. 178; Hayner v. 
 commission of a crime for which Cowden, 27 Ohio St. 292, 22 Am. Rep. 
 the plaintiff was convicted and then 303) ; or with misappropriating collec- 
 pardoned, proof of the truth of the tions. McLeod v. McLeod, 4 Montreal 
 
SLANBEB A:t>rD LIBEL. 63 
 
 the words, to he prima facie actionable, must clearly appear to 
 be spoken of the party in respect to his office, profession or 
 employment;^ and if this does not appear from the word* 
 themselves, the declaration must contain the necessary aver- 
 ments to connect them.^ And it follows that the party must 
 be, at the time, in the exercise of the duties of his office or pro- 
 fession.' 
 
 Words prefudicial to a party in Ms iusiness. — A false 
 charge in respect to one person might be injurious, which, if 
 made in respect to another, would afford no presumption of 
 injury. And so, to bring a case within the fourth class men- 
 tioned, the imputation must be such as is calculated to af- 
 fect the party prejudicially in the business in which he is 
 engaged. To say of a day laborer: "He is a bankrupt," is 
 harmless so far as his business is concerned; but the same 
 remark, if applied to a merchant, may be disastrous, because a 
 good financial credit is indispensable to his business.* 
 
 ^Nevertheless, the rules which protect persons against slanders 
 in their business are applicable to all kinds and all grades of 
 business.^ Men will be excused for extravagance of statement 
 in advertising, but in referring to their rivals they must keep- 
 within the limits of truth and fairness, and cannot with im- 
 punity make unfounded and injurious imputations against 
 rivals to the prejudice of their business.* 
 
 L. Kep. 343; Franklin v. Browne, ^ South Hetton Coal Co. v. North- 
 
 67 Ga. 273. To say that a lawyer eastern News Asso., 1 Q. B. 188; 
 
 is a " blackmailer." To assail the Lewis v. Hawley, 2 Day, 495, 2 Am. 
 
 integrity or intelligence of a judge. Dec. 131; Nelson v. Borchenius, 52 
 
 Eobbins V. Treadway, 3 J.' J. Marsh. lU. 236; Burtch v. Nickerson, 17 
 
 540, 19 Am. Dec. 152; Spiering v. Johns. 217, 8 Am. Dec. 890; Noen- 
 
 Andrae, 45 Wis. 330, 30 Am. Rep. inger v. Vogt, 88 Mo. 589; Phillips v. 
 
 744 To impute incompetency to a Hoefer, 1 Pa. St. 63, 44 Am. Dec. Ill ; 
 
 teacher. Price v. Conway, 134 Pa. Eathbun v. Emigh, 6 Wend. 407; 
 
 St. 340, 8 L. B. A. 193. Young v. Kuhn, 71 Tex. 645. And 
 
 1 See Lumby v. Allday, 1 Cromp. see Moore v. Francis, 131 N. Y. 199, 
 
 & J. 301, 1 Tyrw. 317; Morasse v. 8 L. R. A. 214 
 
 Brochu, 151 Mass. 567, 8 L. R. A. 534;. 6 See Terry v. Hooper, 1 Lev. 115; 
 
 Mains v. Whiting, 87 Mich. 173; Van Orr v. Skofleld, 56 Me. 483. 
 
 Tassel v. Capron, 1 , Denio, 250, 43 * See Young v. MacrcB, 82 L. J. Q. 
 
 Am. Dec. 667; Keene v. Tribune B. 6, 3 Best & Sm. 264; Boynton v.. 
 
 Asso., 76 Hun, 488. Remington, 3 Allen, 397; Fitzgerald 
 
 "Ayrev. Craven, 3 Ad. &E. 7. v. Eedfleld, 51 Barb. 484; Haney 
 
 'See Forward v. Adams, 7 Wend. Mfg. Co. v. Perkins, 78 Mich. 1. 
 
 204; Bellamy v. Burch, 16 M & W. 590. 
 
•6^ SLANDER AND LIBEL. 
 
 Words not actionable per se. — Under this head fall all 
 those cases in which the untruthful statement is not deemed in 
 law to be necessarily of a damaging character, but which is 
 shown to have been damaging in the particular case by reason 
 of special circumstances which are set out in the declaration.^ 
 "While to say of a woman that she is unchaste is generally held 
 not actionable where unchastity is not made a punishable 
 •crime, yet if the woman can show that because of the imputa- 
 tion she lost a contemplated marriage, or suffered in any man- 
 ner a pecuniary loss, she is entitled to legal redress.^ 
 
 Except as the amount of the recovery will depend upon it, 
 it is immaterial whether the injury be great or small; but" it 
 must be pecuniary in its nature.^ 
 
 As distinguishing slander and libel it is said that, while 
 the former is oral defamation, the latteir is defamation propa- 
 gated by printing, pictures, or other means open to the sight. 
 And greater liberty is allowed in vocal speech than in writing 
 or printing, for two reasons : 
 
 1. Vocal utterance is frequently the expression of moment- 
 ary passion or excitement, and is not so open to the implica- 
 tion of settled malice. While to oral expressions little impor- 
 tance may be attached, on the other hand, the same words 
 deliberately written or printed, and afterwards placed before 
 the public, usually justify an inference that they are the ex- 
 pression of settled conviction, and they affect the public mind 
 accordingly. 
 
 2. The agency of one who inflicts injury by an oral charge 
 is at an end when the utteralnce has died upon the ear. But a 
 
 1 As where it is said of one, "He is To charge a man with being a 
 a rogue." Oakley v. Farrington, 1 drxinkard is not actionable, unless it 
 Johns. Gas. 139. Or where the terms is coupled with some business in. 
 eheat and swindler are used. Odiome which drunkenness is a disqualifica- 
 V. Bacon, 6 Gush. 185. See Canton tion. Broughton v. McGrew, 39 Fed. 
 Surgical & D. Ghair Go. v. McLain, Eep. 672, 5 L. R. A. 406. 
 
 83 Wis. 93; Joannes v. Burt, 88 Mass. ' Mental distress and illness oo- 
 
 336. casioned by the charge are not such 
 
 2 See Shepherd v. "Wakeman, 1 Sid. special injury as wiU sustain the 
 79. As that she was deprived of the action. TerwiUiger v. Wands, 17 
 hospitality of f rienda Williams v. N. Y. 54 72 Am. Dec. 420; Donaghue 
 Hill, 19 Wend. 805. And see Moody v. Gafl^, 53 Conn. 43. 
 
 V. Baker, 5 Cow. 351 ; Anon., 60 N. Y. 
 263, 19 Am. Rep. 174. 
 
SIANDEE AND LIBEL. 
 
 65 
 
 ■written or printed charge may pass from hand to hand, and it 
 will be an ever continuous defamation, so long as that by means 
 of which it is communicated remains in existence. 
 
 An action for libel may therefore be maintained for words 
 which, if spoken, would not constitute slander.' 
 
 In libel, as in slander, defamatory publications are classified 
 us publications actionable ^«r se, and publications actionable on 
 averment and proof of special damage. The first class em- 
 braces not only all cases of publications which would be action- 
 able ^e?" se if made orally,^ but also all other cases where the 
 additional gravity imparted to the charge by the manner of 
 publication can fairly be supposed to make it damaging.' The 
 general rule is that any false and malicious writing published 
 •of another is libelous per se Avhen its tendency is to render 
 him contemptible or ridiculous in public estimation, or expose 
 him to public hatred or contempt, or hinder virtuous men from 
 associating with him.* 
 
 Further, any untrue and malicious charge which is published 
 
 'See Hooley v. Kerry, 4 Taunt 
 ■335; Steele v. South wiek, 9 Johns. 
 ■214; Dexter v. Spear, 4 Mason, 115. 
 
 *As, for example, to publish of a 
 hank teller that he is mentally de- 
 ranged, Moore v. Francis, 121 N. Y. 
 199, 8 L. R. A. 214. And see Price 
 V. Con^way, 134 Pa. St. 340, 8 L. R. A. 
 193. 
 
 *To print of a man that he is an 
 •"anarchist" is libelous, though to 
 •orally make the same charge might 
 not be actionable imless shown to be 
 •damaging. Conway v. Chicago Daily 
 News Co., 139 111. 345, 13 L. R A. 864. 
 And see WiUiams v. Blarnes, 4 
 Humph. 9; Price v. Whitely, 50 Mo. 
 -439; McMiirry v. Martin, 26 Mo. App. 
 437; J' Anson v. Stuart, 1 T. B.-748, 
 2 Sm. L. C. (8th Am. ed.) 986. 
 
 * To print of a man that he is a 
 hypocrite and an oppressor of ■wid- 
 ows and orphans is actionable per se 
 <Jones V. Greeley, 25 ITa. 629) ; or that 
 he is an ex-convict (Morrissey v. 
 Providence Telegram Co. (R. L), 33 
 5 
 
 Atl. Eep. 19). To describe a man in 
 a newspaper article accompanied by' 
 the picture of a jackass, as " an ego- 
 tistical, overestimated, self-conceited 
 jackass," is also libelous. Moley v. 
 Barrager, 77 Wis. 43. And see Kay 
 V. Jansen, 87 Wis. 118. See fur- 
 ther, Lindley v. Horton, 27 Conn. 
 58; Giles v. State, 6 Ga. 276; Smith 
 V. Smith, 73 Mich. 445, 3 L. E. A. 52; 
 Moray v. Morning Journal Asso., 123 
 N. Y. 207, 9 L. R. A. 621; AUen v. 
 News Co., 81 Wis. 120; Stewart v. 
 Pierce (Iowa), 61 N. W. Eep. 388; San- 
 derson V. Caldwell, 45 N. Y. 898, 6 
 Am. Bep. 105; Morgan v. Halberstadt, 
 60 Fed. Rep. 592; Monson v. Tus- 
 sauds (189^, 1 Q. B. 671; World Pub. 
 Co. V. Mullen (Neb,), 61 N. W. Rep. 108. 
 But it is not libelous per se to call 
 one a crank (Walker v. Tribune Co., 
 29 Fed. Rep. 827); nor to publish of a 
 merchant that he has made a chat- 
 tel mortgage (Newbold v. Bradstreet, 
 57Md.38). 
 
Go SLA2JDEE AND LIBEL. 
 
 in writing or print, is libelous when damage is shown to hav& 
 resulted as a natural and proximate consequence. 
 
 "When the words published are actionable ^e/* se, it is the duty 
 of the court so to instruct the jury.^ 
 
 Truth as a defense. — The truth of the injurious charge is^ 
 a defense to a civil action,^ though it is not always a defense 
 to a criminal prosecution.' Even in a- civil suit it is necessary 
 to plead it specially.* 
 
 But an honest belief in the truth of the charge is not a legaE 
 excuse ; ' though it may be shown to mitigate the damages.* 
 
 Issues in civil cases are to be determined in accordance with' 
 the preponderance of the evidence. Therefore where criminal 
 conduct is imputed, and the defendant relies on the truth as a 
 justification, it is not necessary, as in criminal cases, that the^ 
 crime should be established beyond a reasonable doubt.' 
 
 Words alleged to be libelous will receive an innocent con- 
 struction if they are fairly susceptible of it ; but language is 
 
 1 Gottbehuet v. Hubachek, 36 Wis. 
 515. And see Trimble v. Anderson, 
 79 Ala. 514; Moore v. Francis, 121 N. 
 Y. 199,'»L. R. A.314 
 
 2 See 3 Cool. Blk. 136; Press Co. v. 
 Stewart, 119 Pa. St. 584; McAllister 
 V. Detroit Free Press Co., 85 Mich. 
 453. Under the constitution of many 
 states, and the statutes of others, the 
 truth is a complete exoneration if 
 published for justifiable ends. See 
 Castle V. Houston, 19 Kan. 417, 27 Am. 
 Rep. 127; Palmer v. Adams (Ind.), 36 
 N. E. Rep. 695; Haynes v. Spokane, 
 etc. Pub. Co. fWash.), 39 Pac. Rep. 
 969; and constitutional provisions of 
 Florida, Illinois, Nebraska, Nevada 
 and Rhode Island; and the statutes 
 of Delaware, Kentucky, Maine and 
 Massachusetts. The authorities are 
 collected in a note to Warner v. 
 Clark, 21 L. R. A. 503. 
 
 3 See 3 Cool. Blk. 126 and note; State 
 V. Bush, 122 Ind. 42. In Colorado the 
 truth may not be shown in a prosecu- 
 tion for a libel " tending to blacken 
 the memory of the dead, or expose 
 
 the natural defects of the living."' 
 Col. Crim. Code;.§ 131& 
 
 *,See Switzer v. Laidman, 18 Ont.. 
 Repk 430; Jamigan v. Fleming, 43: 
 Miss. 710, 5 Am. Rep. 514 The de- 
 fense must extend to the whole of 
 the charge. Woodruff v. Richardson,. 
 
 30 Conn. 238 ; Thompson v. Pioneer- 
 Press Co., 37 Minn. 285. Where the 
 charge is general, the . justification 
 must set out the facts relied on as 
 a defense with particularity. See- 
 Sweeney V. Baker, 13 W. Va. 158, 
 
 31 Am. Rep. 757. 
 
 6 Moore v. Francis, supra; Hen- 
 derson V. Fox, 83 Ga. 333. And see- 
 Burt V. Advertiser Co., 154 Mass. 238,. 
 13 L. R. A. 97. 
 
 SBronson v. Bruce, 59 Mich. 467,, 
 60 Am. Rep. 307. 
 
 ' See Gannon v. Ruffin, 151 Mass.. 
 204; Ellis v. Buzzell, 60 Me. 309, 11 
 Am. Rep. 304; Elliott v. Van Buren, 
 33 Mich. 49, 20 Am. Rep. 668; Riley 
 V. Norton, 65 Iowa, 306; Andrews' 
 Stephen's Pleading, 175, and note;:. 
 WiU's Circ. Ev. 
 
SLANDEB AifD LIBEL. 67 
 
 to be taken in its most natural sense.^ When it is uncertain 
 whether or not a defamatory imputation is conveyed, the ques- 
 tion is one for the jury.^ 
 
 When the truth is relied upon as a defense, it must be proved 
 substantially as laid.' But the common-law rule, that an un- 
 successful attempt to justify may be^ taken into account in ag- 
 gravation of damages,* is abolished in some states. 
 
 Malice. — From the foregoing it is manifest that in the defi- 
 nitions of slander and libel the woTdmaUce is not used in the 
 ordinary sense. In many oases of aggravated injury there is 
 really no mahce at aU, and no intent to injure. The cases dis- 
 tinguish between maUce in law and in fact. The law presumes 
 a wrongful intention where the words are shown to have been 
 uttered without justification. In a legal sense, the words mal- 
 ice and malicious do not refer to actual ill-will or hate, but 
 mean only that the false . and injurious publication has been 
 made without legal excuse.* 
 
 In some cases, however, the existence of malice is absolutely 
 essential to the action. A question of defamation is not al- 
 ways a question merely of private scandal, but may involve 
 questions of the highest public importance ; as, for example, 
 where a man is defalked by an unjust removal from office on 
 
 'See Peake v. Oldham, 1 Cowp. may be considered in aggravation 
 
 275; Morgan v. Halberstadt, 60 Fed. of damages. tJpton v. Hume, 24 
 
 Rep. 592; World Pub. Co. t. Mullen Oreg. 420, 31 L. R. A. 493. 
 
 (Neb.), 61 N. W. Rep. 108; Turton v. sgge Bromage v. Prosser, 4 B. & 
 
 New York Recorder (N. Y.), 38 N. E. C. 47; Barr v. Moore, 87 Pa. St. 385, 
 
 Rep. 1009. 30 Am. Rep. 367; Reariok v. Wilcox, 
 
 2Zier V. HofBin, 88 Minn. 66, 53 81 111. 77; Blumhardt v. Rohr, 70 
 
 Am. Rep. 9. But where the Ian- Md. 328; King v. Patterson, 49 N. J. 
 
 guage is unambiguous, whether it is L. 417; Byam v. Collins, HI N. Y. 
 
 libel or not is, in a civil action, a 148, 2 L. R. A. 129; Bronghton v. 
 
 question for the court. Morgan v. McGrew, 89 Fed. Rep. 673, 5 L. R. A. 
 
 Halberstadt, supra; Pittsburg, etc. 406. However, actual malice may 
 
 R. Co. V. McCurdy, 114 Pa. St. 554 be shown — as where it appeared 
 
 'Sheehey v. Cokley, 43 Iowa, 183, that one had repeated a slanderous 
 
 23 Am. Rep. 286. statement on seyeral occasions — to 
 
 <Rootv. King, 7 Cow. 613; Free- aggravate damages. Frederickson 
 
 man v. Tinsley, 50 HI. 497. But see v. Johnson (Minn.), 63 N. W. Rep. 388. 
 
 Ward V. Dick, 47 Conn. 300; Hen- And see Republican Pub. Co. v. Con- 
 
 derson v. Fox, 83 Ga. 333. Under roy (Colo.), 38 Pac. Rep. 423. Whether 
 
 the Oregon code, if the plea of truth or not malice existed in fact is for 
 
 be not made in good faith, with an the jury.- Childers v. San Jose, etc. ' 
 
 expectation of proving it, that fact Pub. Co. (Cal.), 38 Pac. Rep. 903. 
 
68 SLANDEE AND LIBEL. 
 
 unfounded charges, or by injurious testimony given in courts 
 of justice. A public man may have Ms reputation blasted by 
 an impeachment for an offense never in fact committed ; yet if 
 the impeachment was instituted in good faith, and on grounds 
 apparently sufficient, those concerned in it only performed a 
 public duty. , 
 
 Privilege.— It is essential to justice and the cause of good 
 government that, in many cases, there shall be legal immunity 
 for free speaking without regard to the interests of individuals. 
 It is consequently a rule of law that the person whose duty it 
 is to spea,k shall be privileged to speak freely. The reasons for 
 this protection, however, while in some cases they seem to be 
 conclusive and absolute, operate in others with less force and 
 with less conclusiveness. The cases may therefore be classified 
 as : 1. Cases absolutely privileged, so that no action wiH lie 
 even though it be averred that the injurious publication^ was 
 both false and malicioas. 2. Cases privileged only to the ex- 
 tent that the circumstances are held to preclude any presump- 
 tion of malice, but still leave the party responsible if both 
 falsehood and malice are shown.' 
 
 Cases of absolute privilege. — No action will lie against the 
 witness in judicial proceedings at the suit of the party injured 
 by his false testimony, even though malice be charged.' The 
 privilege extends also to parties, jurors, counsel and Judges.' 
 But the words must be pertinent to the cause or subject of in- 
 quiry.* A witness, for example, is not privileged in testifying 
 to what is immaterial, and which has not been called out by 
 questions of counsel;' and a juror is protected in speaking 
 
 iSee Runge v. Franklin, 73 Tex. La. Ann. 454; Hollis v. Meux, 69 
 
 585, 3 L. R. A. 417. The burden of Cal. 635, 58 Am. Rep. 574. 
 
 showing malice is on the plaintiff. * Nissen v. Cramer, 104 N, C. 574, 6 
 
 See Clark y. Molyneux, L,. R. 3 Q. B. L. R. A. 780; Blakeslee v. Carroll, 64 
 
 D. 237; Strode v. Clement (Va.), 19 Conn. 223, 35 L. R. A. 106. For the 
 
 S. E. Rep. 177. case of an irrelevant charge by a 
 
 2 Henderson v. Broomhead, 4 H. & party while conducting his own 
 
 N. 569; Liles v. Caster, 43 Ohio St. case, see Hastings v. Lusk, 23 Wend, 
 
 631. The protection extends t6 evi- 410. And see Lecroy v. State, 89 Ga. 
 
 dence before a military court of in- 835. 
 
 quiry. Dawkins v. Lord Rokeby, » White v. Carroll. 42 N. T. 161, 1 
 
 L. R. 8 Q. B. C. 255. And see White Am. Rep. 503; Cooper v. Phipps, 
 
 V. NichoUs, 8 How. 366. 24 Oreg. 357, 23 L. R. A. 836. But see 
 
 sSee Gardemal v. MoWilliams, 43 Steineake v. Marx, 10 Mo. App. 5S0l 
 
SLANDER AND LTBEL. 69 
 
 freely to his fellows in. the jury-room only concerning the 
 proper subject-matter of their deliberations.^ In. determining 
 what is pertinent, much latitude must be allowed to the judg- 
 ment and discretion of those who are intrusted with the con- 
 duct of the cause.- Pleadings and other papers filed by parties 
 in the course of judicial proceedings are privileged ; ' and so are 
 affidavits made for commencing proceedings before magistrates, 
 and the preliminary proceedings and information taken or given 
 for bringing supposed guilty parties to justice.* But a pleading 
 must not wander from what is pertinent to libel parties.' 
 
 The exemption of a legislator from responsibility is even 
 more complete and absolute, and exists, independent of consti- 
 tutional declaration, as a necessary principle in free govern- 
 ment. What is said or written by a legislator, acting as such 
 either at a session of the house or upon one of its committees, 
 may not be questioned, elsewhere, except for the purposes of 
 pohtical redress in elections, even though it is not pertinent to 
 the subject before the house for official action.' The members 
 of such inferior bodies as city councils, boards of supervisors, 
 etc., have no such independent powers as legislators proper, and 
 are protected only so far as what is said by them is pertinent 
 to any inquiry or investigation pending or proposed before 
 them.' 
 
 The executive of the nation and the governors of the several 
 
 1 Dunham v. Powers, 43 Vt. 1. bunal is absolute without regard to 
 
 2 See remarks of Shaw, C. J., in pertinency. See Munster t. Lamb, 
 Hoar V. Wood, 3 Met. 193. State v. L. E. 11 Q. B. D. 588; Dawkins v. 
 Wait, 44 Kan. 310; Maulsby v. Eeif- Eokeby, L. R 7 H. L. 744. For a col- 
 suider, 69 Md. 16S. lection and discussion of the cases 
 
 * See Henderson v. Broomhead, 4 concerning privilege in judicial pro- 
 
 H. & N. 570; Lea v. White, 4 Sneed, caedings, see Eandall v. Hamilton, 45 
 
 73, 67 Am. Dec. 599 ; Hardin v. Cum- La. Ann. 1184, 33 L. R. A. 649, and note; 
 
 stock, 2 A. K. Marsh. 480, 13 Am. Dec. Cooper v. Phipps, 34 Oreg. 357, 33 L. E. 
 
 437; Eunge v. Franklin, 73 Tex. 585, A. 836, and note; Wimbish v. Ham- 
 
 3 L. R. A. 417, and note; Lanning v. ilton (La. Ann.), 16 So. Eep. 856. 
 
 Christy, 30 Ohio St. 115, 37 Am. Eep. ^See Coffin v. CoiBn, 4 Mass. 1, 3 
 
 431. Am. Deo. 189; State v. Bumham, 9 
 
 lEainbow v. Benson, 71 Iowa, 301; N. H. 34, 31 Am. Dec. 217; Coffin v. 
 
 Eames v. Whittaker, 123 Mass. 343; DonneUy, L. E. 6 Q. B. D. 307; Belo 
 
 Hibbard et aL v. Eyan, 46 HL App. v. Wren, 63 Tex. 686. 
 
 313. ■'See Wachsmuth v. Merchants' 
 
 5 In England, however, at the pres- Nat. Bank, 96 Mich. 436; Callahan v. 
 
 cnt day, the exemption with regard Ingram, 133 Mo. 853. 
 to proceedings before a judicial tri- 
 
70 SLANDEE AND LIBEL. 
 
 states are exempt from responsibility to individuals for their 
 official utterances. 
 
 Cases only conditionally privileged are those in which the 
 publication is on a lawful occasion which fully protects it, un- 
 less the occasion has been abused to gratify malice or ill-will. 
 It is a rule applying to petitions, applications and remonstrances 
 of all sorts, addressed by the citizen to any officer or official 
 body, asking what may be lawfully granted, or remonstrating 
 against what may be lawfully withheld by such officer or body, 
 that no action will lie for false statements contained therein, 
 unless it be shown that such statements were not only false 
 but also malicious.' It is a necessary part of the right of peti- 
 tion that such papers, presented in good faith, should be pro 
 tected ; ^ and the protection exists while the paper is being cir- 
 culated as well as after it is presented.' Communications made 
 by an officer in the discha,rge of a public duty are likewise privi- 
 leged ; * and so are all communications by members of corpo- 
 rate bodies, churches, and other voluntary societies addressed 
 to the body or any official thereof, and stating facts which, if 
 true, ought to be thus communicated.' 
 
 1 See Thorne v. Blanchard, 5 Johns, v. Mitchell, 31 Barb. 461, 467; Hal- 
 508; Whitney v. Allen, 63 III 473; stead v. Nelson, 36 Hun, 149. See 
 Bodwell V. Osgood, 3 Pick. 879, 15 Ee Stat© Prison Commission (R L), 
 Am. Dec. 228; Kent v. Bongart, 15 5 New England Rep. 99, declaring 
 R. I. 73; Ramsey v. Cheek, 109 N. C. the reports of commissioners ap- 
 270. pointed by the governor to be priv- 
 
 2 Bradley v. Heath, 12 Pick. 163, 22 ileged. 
 
 Am. Dec. 418; Howard v. Thompsoii, » Kershaw v. Bailey, 1 Exch. 743;' 
 
 21 Wend. 319, 34 Am. Dec. 238. And O'Donaghue v. McGpvern, 23 Wend, 
 
 see Proctor v. Webster, L. R. 16 Q. 36. And see Blakeslee v. Can-oil, 64 
 
 B. D. 112, the case of a letter to the Conn. 233. Pertinent statements 
 
 privy council concerning the re- made at a town meeting are privi- 
 
 nloval of an ofScer. leged (Kirkpatripk v. Eagle Lodge, 
 
 3 Venderzee v. McGregor, 13 Wend. 36 Kan. 384, 40 Am. Rep. 316), and 
 545. It must be addressed to the au- communications between church 
 thority having power to relieve, members in the course of church 
 Fairman v. Ives, 5 B. & Aid. 643. discipline. Jarvis v. Hatheway, 3 
 But a paper never meant to be pre- Johns. 180, 3 Am. Dec. 473; Landis 
 sented as a petition is not protected, v. Campbell, 79 Mo. 433, 49 Am. Rep. 
 State V. Burnham, 9 N. H. 84. 239. And see Famsworth v. Storrs, 
 
 < As the report of a committee ap- 5 Cush. 413; Shurtlefl v. Stevens, 51 
 
 pointed to investigate town water- Vt. 501, 31 Am. Rep. 698. But a 
 
 works. Howland v. Flood, 160 Mass. letter to a member of an association 
 
 609. And see Maurice v. Worden, concerning another member, written 
 
 54 Md. 233, 39 Am. Rep. &84; Perkins by one having no interest in the as- 
 
SLANDER AND LIBEL. 
 
 71 
 
 Other cases, though of less importance by reason of the pub-, 
 lie considerations that bear upon them, are still entitled to the 
 same privilege, because a like duty demands the same freedom 
 of speech, though the communication may concern only the 
 person to whom it is addressed and the person to whom it is 
 made.* For example, a father may freely discuss with his 
 daughter the character, habits, reputation and abilities of one 
 who has sought her hand in marriage, and he is at liberty to 
 «peak not only what he knows, but what he believes and suspects.^ 
 Confidential communications between one and his professional 
 ^viser, whether legal, medical or spiritual, are shielded with the 
 same protection; as likewise between a principal and his agent 
 in any matter connected with the business.' In all these cases 
 it is necessary to show not only that the communication was 
 false, but also that it was made with evil intent. The qualified 
 privilege extends to all communications made hona fide upon 
 any subject-matter in which the party conununioating has an 
 interest or duty, to a person having a corresponding interest 
 ■or duty.* If one makes it his business to furnish information 
 
 sociation, is not privileged. Shiart- 
 leff V. Parker, 130 Mass. 393. See, 
 also. Nix V. Caldwell, 81 Ky. 293. 
 
 iSee Strode v. Clement, 90 Va. 
 553. 
 
 2 Todd V. Hawkins, 8 C. & P. 88. ' 
 But a libelous letter to a woman 
 concerning her suitor cannot be 
 justified on the ground that the 
 writer was her fanner pastor, and 
 that the letter was written at the 
 request of her parents. Joannes v. 
 Bennet, 5 Allen, 169. Nor is a letter 
 of this sort protected wliich is pro- 
 moted by friendly feelings merely, 
 and written without the i-equest of 
 the woman to whom it is sent. 
 Byam v. CoUins, 111 N. Y. 143, 3 L. 
 R. A. 129. 
 
 SKnowles v. Peck, 42 Conn. 386, 
 19 Am. Rep. 543. 
 
 * An honest and reasonable belief 
 by the party making the communi- 
 cation that the party to whom it is 
 made has such an interest or duty 
 is not sufficient. Hebditch v. Mc- 
 
 Ilwaine (C. A.), 3 Q. B. 54. See 
 Harrison v. Bush, 5 El. & Bl. 344; 
 Bradley v. Cramer, 66 Wis. 297; 
 PoUasky v. Minchener, 81 Mich. 280; 
 LoveU V. Houghton, 116 N. Y. 520, 6 
 L. R. A. 363; Missouri Pac. R. Co. v. 
 Richmond, 73 Tex. 568, 4 L. R. A. 
 380, and note. This rule is said to 
 embrace cases where the duty is 
 only a moral or social one. But the 
 difficulty is to determine what is a 
 "moral " duty. See Byam v. Collins, 
 supra; White v. NichoUs, 3 How. 
 (If. S.) 366, 391; Gassett v. Gilbert, 6 
 Gray, 94. Statements which go be- 
 yond what is necessary for protec- 
 tion, and introduce matters in which 
 the parties have no common inter- 
 est, are not privileged. Tillinghast 
 V. McLeod, 17 R. I. 208. A letter 
 to an employer concerning the 
 character and conduct of a servant 
 must be written in good faith to 
 give him information necessary for 
 his protection. Over v. Schiffling, 
 103 Ind. 191. And where A. was 
 
T2 SLANDER AND LIBEL. 
 
 concerning the character, habits, standing and responsibility 
 of tradesmen, in response to inquiries from those who have & 
 special interest in knowing these facts, his business is privi- 
 leged ; 1 but if he sends such information to all who engage his 
 services, without regard to their special interest in any particu- 
 lar case, his business is not privileged and he must justify his 
 reports by the truth.^ A reply to a newspaper attack, made 
 in self-defense and without malice, is privileged.' 
 
 Tlie liberty of the jyress has been carefully preserved by the- 
 constitution, which has not, however, undertaken to define it. 
 The freedom of the press implies exemption from censorship, 
 and a right in aU. persons to publish what they see fit, being 
 responsible for the abuse of the right.* The general purpose 
 of this right bging to preclude those in authority from mak- 
 ing use of the niachinery of the law to prevent full discus- 
 sion of political and other matters in which the public are 
 concerned, it is evident there must be not only freedom of 
 discussion, but exemption afterward from liability for any pub- 
 lication made in good faith, and in the belief in its truth, the 
 making of which, if true, would be justified by the occasion.* 
 There is freedom to discuss in good faith the character, the 
 habits and mental and moral qualification of any person pre- 
 senting himself as a candidate for public office.* The same 
 
 about to employ a former servant ing opinion in this case); Follasky v. 
 
 of F., and F. voluntarily, and under Min(^ener, 81 Mich. 380; Mitchell v. 
 
 the conviction that he owed the Bradstreet Co., 116 Mo. 226, 20 L. R. 
 
 duty to A., informed him of mia- A.' 138; Bradstreet Ca v. Gill, 73 
 
 conduct of the servant, the words Tex. 115, 2 L. B. A. 405. 
 
 were held privileged. Fresh v. Cut- 'ChaflSn v. Lynch, 83 Va. 106, 84 
 
 ter, 73 Md. 87, 10 L. E. A. 67. No Va. 884 . 
 
 action will lie against a railroad for * Cooley, Const. Lim. 420 ; Com. v. 
 
 publishing to its employees, in' a Blanding, 3 Pick. 304, 15 Am. Deo. 
 
 monthly list, the names of servants 214. 
 
 discharged for misconduct or crimi- s xhe conductor of a public jour- 
 nal ofEenses. Hunt V. Great Northern nal has no special privilege as such, 
 Ry. (1891), 2 Q. B. 189. And see Bacon " The public press occupies no better 
 V. Mich. Cent. R. Co., 66 Mich. 166. ground than private persons publish- 
 
 1 Ormsby v. Douglass, 37 N. Y. 477; ing the same libelous matter." Park 
 
 Toussell V. Scarlett, 18 Fed. Rep. v. Detroit Free Press Co., 73 Mich, 
 
 214; Howland v. Blake Mfg. Co., 156 560, 1 L. R. A. 599; Delaware State F. 
 
 Mass. 543. • & M. Ins. Co. v. Croasdale, 6 Houst 
 
 2Sunderlin v. Bradstreet, 46 N. Y. 181; Upton v. Hume, 24 Greg. 420^ 
 
 188, 7 Am. Rep. 333; King v. Patter- 31 L. R, A. 493. 
 
 son, 49 N. J. L. 417 (see the dissent- " Whether presented before th& 
 
SLANDER AND LIBEL. 
 
 7S 
 
 freedom exists when the character and official conduct of one 
 holding a public office is in question, and in all cases where the 
 matter discussed is one of general public interest.' 
 
 Judicial trials and hearings may be fully reported in th& 
 public press,^ provided they are not ex 'parte merely,' and are 
 not indecent or blasphemous. But such reports must contain 
 no defamatory observations, headings or comments, and must 
 be confined to the actual proceedings.* 
 
 electors or a board or officer having 
 power of appomtment. See Posnett 
 V. Marble, 63 Vt. 481, 11 L. R A. 162. 
 See Com. v. Clap, 4 Mass. 169; Hart 
 V. Townsend, 67 How. Pr. 88, One, 
 by becoming a candidate for a pub- 
 lic office, deliberately places before 
 the public for discussion his conduct 
 and utterances. Nevertheless his 
 character and reputation should be 
 protected from malicious attack. 
 And when harmful language is 
 falsely and maliciously stated as that 
 of the candidate, privilege ceases to 
 be a defense. Belknap v. Ball, 83 
 Mich. 583, 11 L. R. A. 73. And so if 
 the article falsely accuses the candi- 
 date of a crime. Bronson v. Bruce, 
 59 Mich. 467, 60 Am. Eep. 307. And 
 see Crane v. Waters, 10 Fed. Eep. 
 619; Wheaton v. Beecher, 66 Mich. 
 307. 
 
 1 Palmer v. Concord, 48 N. H. 211, 
 97 Am. Dec. 605. But "if one goes 
 out of his way to asperse the per- 
 sonal character of a public man, and 
 to ascribe to him base and corrupt 
 motives, he must do so at his peril, 
 and must either prove the truth of 
 what he says or answ^er in damages 
 to the party injured." Negley v. 
 Farrow, 60 Md. 158, 45 Am. Kep. 715. 
 Charges of specific acts of miscon- 
 duct are not the subject of any priv- 
 ilege. Popham V. Pickbum, 7,HurIst. 
 & N. 891. And see Post Pub. Co. v. 
 Hallam, 59 Fed. Eep. 580; Augusta 
 Evening News v. Eadford, 91 Ga. 
 494, 20 L. E. A. 533; EandaU v. Even- 
 ing News Asso., 79 Mich. 266, 7 L. R. A. 
 
 309; Sillars v. Collier, 151 Mass. 50,. 
 6 L. E. A. 680, and note.; Burt v. Ad- 
 vertiser Co., 154 Mass. 238, 13 L. E.. 
 'A. 97, and note; Neeb v. Hope, 111 
 Pa. St. 145; Hamilton v. Eno, 81 N.. 
 Y. 116; Davis v. Shepstone, 11 App. 
 Cas. 187, and Post Pub. Co. v. Hal- 
 lam, 59 Fed. Eep. 530, citing many 
 important cases. 
 
 2 The publication of such proceed- 
 ings to the country at large affords- 
 security for the proper administra- 
 tion of justice, in that those who ad- 
 minister justice act under a sense 
 of responsibility to the public. See 
 Cowley V. Pulsifer, 137 Mass. 392, SO' 
 Am. Eep. 318. 
 
 2 The reason for this exception is- 
 that the publication of ex parte pro- 
 ceedings has a tendency "to pre- 
 judge those whom the Jaw still pre- 
 sumes to be innocent and to poison 
 the source of justice." See Eex v.. 
 Fisher, 3 Camp. 563; Usher v. Sever- 
 ance, 20 Me. 9, 37 Am. Dec. 33. But 
 it woidd seem from the English 
 cases that where the defendant is- 
 discharged there may be publica- 
 tion. Lewis V. Levy, EL B. & El. 
 537; UsiU v. Hales, L. E. 3 C. P. D. 
 319. " The public have no rights to 
 any information on private suits till 
 they come up for public hearing, or 
 action in open court." Campbell, J.,, 
 in Park v. Detroit Free Press Co., 73 
 Mich. 560, 1 L. E. A. 599, a case of 
 the publication of the pleadings in a 
 bastardy proceeding. 
 
 ♦Reports may be published from 
 day to day. See Cowley v. Pulsifer, 
 
74 SLANDER AND LrBEL. 
 
 This privilege of the press extends to all who make use of 
 it to place information before the public.^ 
 
 The press may lawfully warn the public against the conduct 
 and motives of those who are believed tb be disloyal or to 
 threaten the peace of the state ; and the fair and honest dis- 
 cussion of matters of public interest is always privileged.^ No 
 privilege is accorded to the publication of news.' Publishers 
 •of newspapers, however, are not liable in exemplary damages 
 for the appearance in their journals of false items of inteUi- 
 :gence without their personal knowledge, where they have been 
 guilty of no negligence in the selection of the agents through 
 whom the publication has been made, and have not been ac- 
 customed habitually to make their jonmals the vehicle of de- 
 traction and malice.* 
 
 Kepetition of defamatory publications. — There is no priv- 
 ilege in repeating defamatory publications. It may sometimes 
 operate to mitigate damages that the defendant only repeated 
 what had been told him by another, whose name he gives, or 
 copied in his newspaper a charge originating elsewhere, or 
 published it as an advertisement or communication ; but the 
 fact cannot excuse the publication.^ And it is no defense that 
 
 supra. To be privileged, the reports 47 Am. Rep. 183. And reporters 
 must be fair and made in good faith, must use "the same degree of care as 
 ■Stevens v. Sampson, L. R. 5 Ex. D. others to prevent mistakes in news 
 ■5S. One may publish that a judg- furnished by them. See Park v. De- 
 ment has been entered against a troit Free Press Co., supra. 
 party as shown by the record of the * Scripps v. ReiUy, 35 Mich. 371, 24 
 court, but comment in a head-line Am. Rep. 575. See, also. Smith v. 
 to the effect that such party was Ashley, 11 Met. 367. And the seller 
 embarrassed is not privileged. Hayes of a newspaper containing a hbel is 
 V. Press Co., 137 Pa. St. 642, 6 L. R. A, not liable if he can prove that he did 
 643. not know of the existence of such 
 
 1 See Barrows v. Bell, 7 Gray, 301, libelous article. See Street v. John- 
 ■66 Am Dec. 479, son, 80 Wis. 455, 14 L. R A. 203. On 
 
 2 But the mere fact that the read- the subject of this section the stat- 
 ers of a newspaper are interested in utes of each state must be consulted, 
 a particular matter affords no privi- » Upton vy Hume, 24 Oreg. 430, tS 
 lege. SheckeU v. Jackson, 10 Cush. Pac. Rep. 810, 31 L. R A. 493; Wal- 
 35. As to matters that come within lace v. Rodgers, 156Pa._St. 395; Deir.- 
 ihe rule as to public interest, see ocrat Pub. Co. v. Jones, 88 Tex. 
 Atkinson v. Detroit, etc. Co., 46 Mich. 303; Edwards v. Kainsas City Times 
 ■341. Co., 33 Fed. Rep. 813; Barr v. Birlc- 
 
 3 Barnes v. Campbell, 59 N. H. 138, ner (Neb.), 63 N. W. Rep. 494; De 
 
SLANDEE AND LIBEL. 
 
 75 
 
 the publication professed to give a rumor merely, or that the 
 plaintiff was generally believed to be guilty of what was im- 
 puted to him.' 
 
 Slander of property. — There may be misrepresentation in 
 respect to particular articles of property not connected with 
 ■one's business, where the injury will concern the property 
 ^lone. Such misrepresentation is actionable, provided it is 
 maJicious and damaging; but malice wiU not be presumed, and 
 ■damage must be alleged and proved.'' 
 
 Slander of title. — For maliciously slandering the title to 
 plaintiETs property an action will lie, and here also it is neces- 
 sary to aver and prove both malice and damage.' The action 
 rests upon the general principle that when one injures an- 
 
 Crespigney v. Wellesley, 5 Bing. 393. 
 The one who repeats the story is not 
 shielded unless, at the time of the 
 repetition, he gives the plaintiff an 
 action against the original author. 
 Johnson v. St. Louis D. Co., 65 Mo. 
 539, 37 Am. Rep. 393. 
 
 iSee Knight v. Foster, 39 N. H. 
 576; Haskins v. Lumsden, 10 "Wis. 
 559; McAllister v. Free Press Co., 76 
 Mich. 338. And it affords no protec- 
 tion to give with the publication the 
 name of the author. Dole v. Lyon, 
 10 Johns. 447, 6 Am.. Bee. 846. To 
 mitigate damages it may also be 
 shown that a retraction of the charge 
 was published before suit brought. 
 Davis V. Marxhausen (Mich.), 61 N. 
 W. Kep. 504; Taylor v. Hearst (CaL), 
 40 Pac. Rep. 393. But a mere offer 
 to retract, made after the beginning 
 of the suit and which does not ap- 
 pear to have been made in good 
 faith, may not be shown in mitiga- 
 tion of damages. Turton v. New 
 York Recorder (N. Y.), 38 N. E Rep. 
 1009. And see Constitution Pub. Co. 
 V. Way (Ga.), 21 S. E. Rep. 139. The 
 legislature of Illinois, at its last reg- 
 ular session, passed an act which 
 provides that the plaintiff in a libel 
 suit shall recover only actual dam- 
 
 ages in cases where the publication 
 complained of was made in good 
 faith, there being reasonable grounds 
 for believing the statenients to be 
 true, if, after the falsity or mistake 
 in the publication was brought to the 
 knowledge of the publisher of the 
 paper making it, a correction or re- 
 traction was printed in the next two 
 regular issues thereof in as conspic- 
 uous a manner and place as was the 
 libel itself. Similar legislation has 
 been proposed in other states and is 
 not unlikely to be adopted. 
 
 2 Dudley V. Briggs, 141 Mass. 583; 
 Gott V. Pulsifer, 133 Mass. 385, 28 
 Am. Rep. 323. If it is proved that 
 the representations were false and 
 that injury resulted, malice, it has 
 been held, is to be presimied. Swan 
 V. Tappan, 5 Cush. 104. 
 
 'Malachy V. Soper, 3 Bing. N. C. 
 871, Bigelow's Lead. Cas. 54. It is 
 necessary to set out the facts which 
 show wherein the plaintiff has sus- 
 tained damage. Burkett v. Griffith, 
 90 Cal. 532. And see Flint v. Hutch- 
 inson Smoke Burner Co., 110 Mo. 493 
 16 L. R A. 243. An action lies for 
 slander of title to either real or per- 
 sonal property. See Steward v. 
 Young, L. R. 5 C. P. 126. 
 
76 SLANBEE AIID LIBEL. 
 
 Other by any wroiigful and malicious conduct he is liable to an 
 action on the special case.' 
 
 1 The action generally arises by the charge will defeat it. See Lovell 
 reason of the breach of a contract v. Houghton, 116 N. Y. 520, 6 L. R. A. . 
 6f purchase induced by the false 363. An action wiU lie for slander 
 representations. See Burkett v. of title to letters patent (Andrew v. 
 GTiffith|'90 Cal. 533. And is founded Deshler,45 N. J.L. 167; Snow v; Jud- 
 on malice. Like v. McKinstry, 41 son, 38 Barb. 310); and to a trade- 
 Barb. 186. And see Harriss v. Snee- mark (Hatchard v. Mege, L.' R. 18 
 den, 101 N. 0.373; Burkett v. Griffith, Q. B. B. 771); and to a copyright. 
 supra, 13 L. E. A, 707, and note. And Dicks v. Brooks, I* E. Iff Ch. D. 32; 
 evidence of good faith in making Lovell v, Houghton, supra. 
 
CHAPTEK YIII. 
 
 INJURIES TO FAMILY EIGHTS. 
 
 Family rights. — It has been said in a former chapter that 
 the common law, while it took notice of rights pertaining to cer- 
 tain relations of life, did not recognize the family, as such, as 
 •constituting a legal entity, and as having rights as an associa- 
 tion of persons. In modern times legal principles have not 
 been modified to keep pace with social progress, and the com- 
 mon law of family rights is in most particulars not greatly dif- 
 ferent now from what it was during the formative period of 
 the law, when the husband and father was regarded as the 
 representative of the family, and wife and children were, as to 
 him, rather servants and dependants than equals. 
 
 Wrongs to the husband. — While the husband and father 
 was recognized as the head and representative of the i&mily, it 
 was impossible, iu some cases, that the ordinary remedies for 
 •civil injuries should be allowed as between tho various mem- 
 bers. For example, for a gross bre^ach of the marriage cov- 
 enant by the wife the spiritual courts might decree a separation, 
 and the supreme legislative authority might dissolve the mar^ 
 riage relation; but dther civil redress the husband could not 
 have. 
 
 The spirit of the age rejects, as a, reminiscence of barbarism, 
 the right of the husband to inflict personal chastisement upon 
 the wife.' 
 
 While the wife cannot maintain an action for an assault upon 
 her by the husband, yet such an assault is punishable by the 
 criminal law ; and from any forcible restraint put upon the ac- 
 tions of the wife, and which would constitute an imprisonment, 
 she might have relief on habeas corjpus? 
 
 Against third persons tho husband might have redress at 
 
 'The old rule was recogzuzed in N. H. 307, 313; Com. v. McAfee, 108 
 
 State v. Rhodes, 1 Phil. (N. C.) 458, Mass. 458, 11 Am. Eep. 383. 
 
 98 Am. Dec. 78. But see, as sup- ^gee Main v. Main, 46 IlLApp. 106. 
 porting the text. Poor v. Poor, 8 
 
78 INJUEIES TO FAMILY EIGHTS. 
 
 common law foe an injury suffered by him in respect to the- 
 property which the wife brought him. 
 
 Against one who seduced his wife or enticed her away fronb 
 him. the husband might have a special action on the case. On 
 the question of damages the following subjects might be taken 
 into consideration : 1. Dishonor of the marriage bed. 2. Loss- 
 of the" wife's affections. 3. Loss of the comfort of the wife's, 
 society. 4. Total loss of the wife's services where she ab- 
 sconds from the husband, and probable diminished value of 
 services where she does not. 5. The mortification and sense- 
 of shame usually accompanying this flagrant wrong. By the 
 weight of modern authority the basis of the action for aliena- 
 tion of the wife's affections, or for criminal conversation, is thfr 
 loss of the cxmsortvwm, by which is meant the society, compan- 
 ionship, affection, assistance and fidelity of the wife.' 
 
 In any case, the extent of the injury must depend in great 
 measure upon the previous relations of husband and wife, 
 which is always a competent subject of inquiry. If these were 
 such as usually exist where the parties have a proper sense 
 of the obligations and responsibilities that belong to marriage, 
 the injury done to the husband by the seduction of his wife is 
 out of all proportion to that which is done him where he has 
 previously, by his own abuse and misconduct, destroyed her 
 affections.^ The cases differ so widely in their facts, that, as to 
 damages, it must be left to the proper legal tribunal to award in 
 its discretion much or little, according as it is found that much 
 or little has been lost by the complaining party.' 
 
 1 Cross V. Grant, 62 N. H. 675, 13 the wife's services may constitute 
 
 Am. St. Rep. 607; Adams v. Main, 3 one of the elements of damages, but. 
 
 Ind. App. 232. In criminal conver- not necessarily so. Bigaouette v. 
 
 sation, whether the invasion of the Paulet, 184 Mass. 123, 45 Am. Rep., 
 
 rights of the husband — the defile- 307. 
 
 ment — is accomplished by force or ^That the bad character of the 
 
 by consent of the wife, is immaterial husband may mitigate damages he 
 
 to maintenance of the action. Eg- must have been guilty of some 
 
 bert V. Greenwalt, 44 Mich. 245, 88 wrong to the vsdfe herself. Norton 
 
 Am. Rep. 260; Bedan v. Tumey, 99 v. Warner, 9 Conn. 173. 
 
 CaL 649. But the wife's consent ' See Matheis v. Mazet, 164 Pa. St. 
 
 may reduce the damages. Ferguson 580. Letters of husband and wife to 
 
 V. Smethers, 70 Ind. 519, 36 Am. Rep. each other may be introduced in 
 
 186. The question of force is always evidence to show their relations be- 
 
 for the consideration of the jury, fore the wife's connection with the 
 
 Bedan v. Tumey, sxij^ra. Loss of defendant. Holtz v. Dick, 42 Ohio St.- 
 
INJCEIES TO FAAHLT EIGHTS. 
 
 79- 
 
 The action for seducing the wife away from the husband ex- 
 tends to all cases of wrongful interference in the family affairs- 
 of others whereby the wife is induced to leave the husband, or 
 to so conduct herself that the comfort of the married life is de- 
 stroyed.' If, however, the parents of the wife interfere on an 
 assumption that the wife is ill-treated to an extent that justi- 
 fies her in withdrawing from her husband's society and control, 
 they should not be held responsible unless a want of justifica- 
 tion is clearly shown.^ One who merely harbors a wife who 
 left her husband, without his consent, will not be liable to the 
 husband unless she left him without justiflcation.' 
 
 Wrongs to the wife. — Por an injury to the wife, caused 
 either intentionally or negligently, which deprives her of the 
 ability to perform services, or lessens that ability, the husband 
 may maintain an action for the loss of service, and also for any- 
 incidental loss or damage, such as moneys expended in care 
 and medical treatment and the like.* At common law the fact 
 that the injury resulted in her death could not be taken into 
 
 33, 51 Am. Rep. 791; Fratini v. Cas- 
 lini, 66 Vt. 273. Though previous un- 
 happy relations may mitigate dam- 
 ages they cannot palliate the de- 
 fendant's conduct. See Hadley v. 
 Heywood, 121 Mass. 236, 339. There 
 is such a thing as a partial aliena- 
 tion of affections; and though the 
 wife had no affection for her hus- 
 band, the defendant had no right to 
 interfere and cut off the chance of 
 future affection. Dallas v. Sellers, 
 17 Ind. 479, 79 Am. Dec. 489; Fi-atini 
 V. Caslini, supra. 
 
 1 Though there be no elopement or 
 adultery. Rinehart v. BiUs, 83 Mo. 
 534, 53 Am. Rep. 385. And see Hoard 
 V. Peck, 56 Barb. 202. 
 
 2 Bennett v. Smith, 31 Barb. 439. 
 One who makes true statements to 
 a wife and gives her advice, in con- 
 sequence of which she afterwards, 
 and of her own independent action, 
 leaves her husband, is not liable un- 
 less it appears that he was acting 
 from malevolent motives. Tasker v. 
 
 Stanley, 153 Mass. 148, 10 L. R. A.. 
 468. 
 
 sphilp V. Squire, Peake, N. P. 82. 
 And see Johnston v. Allen, 100 N. C. 
 131. 
 
 <Matteson v. N. Y. C. E. Co., 35- 
 N. Y. 487; Atlantic, etc. R. Co. v. Hop- 
 kins, 94 F. S. 11. And it has lately 
 been decided that the wife's con- 
 tributory negligence will constitute 
 a defense to such an action. C, B. 
 & Q. R. Co. v. Honey, 63 Fed. Rep. 
 39, 36 L. R. A. 43; Winner v. Oak- 
 land Tp., 158 Pa. St. 405, 410. In 
 Iowa the husband cannot recover 
 if the wife has followed an independ- 
 ent employment. Fleming v. Shen- 
 andoah, 67 Iowa, 505, 56 Am. Rep. 
 354. And see Brooks v. Schwerin, 54 
 N. Y. 343. Recovery by the hus- 
 band for an injury to himself is 
 no bar to an action by him for an 
 injury sustained by his wife at the 
 same time-. Skoglund v. Minneap-- 
 olis St. R. Co., 45 Minn. 330, 11 L. R. 
 A. 333, and note. 
 
so INJURIES TO FAMILY KIGHTS. 
 
 account either as the ground of action or as an aggravation of 
 damages ; ' but this is changed by statute in most of the states. 
 
 The word " service," when employed to indicate the ground 
 on vrhich the husband is allowed to maintain an action, implies 
 wliatever of aid, assistance, comfort and society the wife would 
 be expected to render to, or bestow upon her husband, under 
 the circumstances and in the condition in which they may be 
 placed, whatever those may be. That services, in the sense of 
 labor or assistance such as a servant might perform or render, 
 were not rendered at all, would be immaterial and irrelevant, 
 except as the fact might, under some circumstances, tend to 
 show a want of conjugal regard and affection, and thereby 
 tend to mitigate the damages.^ 
 
 For an injury suffered by the wife in her person, such as 
 would give a right of action to any person, a suit might be 
 instituted in the joint name of the husband and wife, which 
 would embrace damages for physical and mental suffering;' 
 but the damages recovered would belong to the husband alone. 
 In some of the states, however, it is held that the statutes 
 which exclude the husband's common-law interest in the real 
 and personal estate of the wife take from him also the right 
 to compensation for the torts suffered by her.* 
 
 Where, by statute, the wife is given fuU dominion and con- 
 trol of her property, an action may be maintained against the 
 
 1 The husdand's recovery was lim- statute, that the wife must sue alone, 
 
 ited to the loss suffered intermediate and so must the husband, for injury 
 
 the injury and death. Hyatt v. to her. See Honey v. C, B. & Q. R 
 
 Adams, 16 Mich. 180. Co., 59 Fed. Eep. 423. But in other 
 
 * At the same time, if the wife is states it is held that a personal tort 
 
 accustomed to render services to the does not create a right of property, 
 
 husband in his business, he may re- and the married woman's property 
 
 cover, in an action for an injury act has not given her the right to sue 
 
 which deprives him of her aid, for for a personal injury; and it is held 
 
 the value of her services and the loss that, in an action by husband and 
 
 resulting from her inability to per- wife, proof of contributory negli- 
 
 form them. Citizens' St. R. Co. v. gence of the former will defeat the 
 
 Twiname, 131 Ind. 375, 7 L. E. A. 352. suit. See Pennsylvania E. Co. v. 
 
 8 See Hyatt v. Adams, supra. Goodenough (N. J.), 22 L. E. A. 4fi0, 
 
 < Now in some states the wife may and note. Also in Calif orm'a the 
 
 sue alone for injuries. Stevenson v. right to recover damages is commu- 
 
 Morris, 37 Ohio St. 10, 41- Am. Eep. nlty property, and the wife cannot 
 
 481; C, B. & Q. E. Co. v. Dunn, 52 sue alone. McFadden v. Santa Anna, 
 
 lU. 260, 4 Am. Eep. 606. And in etc. E. Co., 87 Cal. 464 11 L. R A 
 
 Iowa it has been niled, imder the 252. 
 
INJUBIES TO FAMILY EIGHTS. 81 
 
 husband for any nnlawf ul interference with the property.^ But 
 «ven under these statutes the wife can maintain no action 
 against her husband for a personal injury.' Even after divorce 
 the wife cannot sue the husband for a personal tort committed' 
 by him upon her whUe the relation lasted.' 
 
 At common law the wife had no redress against one who 
 should seduce the husband's affections from her, or in any 
 manner deprive her of his care and society. But now, in 
 many of the states, the wife may maiutain an action for the 
 alienation of her husband's affections, and the consequent loss 
 of his society, assistance and support.* 
 
 Parent and child. — At common law, the action for the in- 
 jury which one might suffer in the relation of parent was lim- 
 ited to the recovery of damages for being deprived of the 
 child's services, and was based upon the relation of master 
 and servant rather than upon that of parent and child. The 
 decisions have consequently been to the effect that if the child, 
 from want of maturity or other cause, was incapable of render- 
 ing service, the parent could suffer no . pecuniary injury, and 
 therefore could maiutain no action when the child was ab- 
 ducted or injured.* 
 
 1 Martin v. Eobson, 65 HL 129, 16 son v. Hodgkinson (Neb.), 61 N. "W. 
 Am. Eep. 578; Iiarison v. Larison, 9 Eep. 577; Holmes v. Holmes, 133 Ind. 
 HL App. 27. In New York the wife 386; Eailsback v. Eailsbaok (Ind. 
 may sue as if she were single. Code App.), 40 N. E. Eep. 276; Clow v. 
 of Civ. Proc, § 450. And see Mo- Chapman (Mo.), 26 L. E. A 412. But 
 Kendry v. McKendry, 131-Pa. St. 24, other decisions do not base the ao- 
 ■6 L. R. A. 506, and note. tion on statute. As sustaining the 
 
 2 Peters v. Peters, 42 Iowa, 182; right, see further Fort v. Card, 58 
 Schultz V. Schultz, 89 N. Y. 644 Conn. 1, 6 L. E. A. 839; Bennett v. 
 
 ' For example, she cannot sue him Bennett, 116 N. Y. 584 6 L. R. A. 
 
 for assault committed during cover- 553; Westlake v. Westlake, 34 Ohio 
 
 tura Longendyke v. Longendyke, St. 621; Sea-^er v. Adams (N. H.), 
 
 44 Barb. 366; Abbott v. Abbott, 67 19 Atl. Eep. 776. But the following 
 
 Me. 304 24 Am. Eep. 27; Main v. cases deny the right of action: Doe 
 
 Main, 46 111. App. 106. v. Eoe, 82 Me. 503, 8 L. R A. 833; 
 
 *In some states the action is al- DuflBes v. Duffies, 76 "Wis. 374, 8 L, 
 lowed on the ground of the removal E. A, 420. As to the right of a mar- 
 by statute of the disabilities of the ried woman to maintain an action 
 wife. See Mehroff v. Mehrofif, 26 in the natiwe of crim. con. against 
 Ted. Rep. 13; Townsdin v. Nutt, 19 another woman, see Blroessin v. Kel- 
 Kan. 383; Eice v. Eice (Mich.), 63 N. ler (Minn.), 62 N. W. Eep. 488. 
 W. Eep. 833; Warren v. "Warren, 89 *See Grinnell v. Wells, 7 M. & G. 
 Mich. 123, 14 L. E. A. 545; Hodgkin- 1033. But in this country there has 
 
82 
 
 injueies to family eights. 
 
 Loss of service to the parent ' may be occasioned by enticing 
 the child away,* by forcibly abducting the child,' by beating 
 or otherwise purposely injuring the child,* by a negligent in- 
 jury which disables the child from labor,* and, in case of a fe- 
 male child, by seduction. In some of these cases there may be 
 two wrongs : one to the parent, in depriving him of the child's 
 services ; and one to the child, to his personal injury. But the 
 actions cannot be joined, the right of action in each being 
 distinct.* 
 
 Whatever induces the child to leave the parent, or, after 
 leaving, to remain away from him, may in law constitute en- 
 ticement; but to receive and shelter a child from parental 
 abuse may sometimes be a moral duty and justifiable. There- 
 fore, where the defendant is charged with enticing the child 
 away from his parent, his motive is important. It has been 
 held that one who employed a runaway child without knowl- 
 edge of Ms misconduct was liable for retaining him in his serv- 
 ice after notice that his father objected, but not before.'' 
 
 been a tendency toward "a more 
 liberal and more reasonable doc- 
 trine, basing the right of action 
 upon parental relation;" And the 
 father is allowed to recover his con- 
 sequential loss of expense and time 
 in the care, nursing, eta, of the in- 
 jured child, irrespective of its age. 
 See Netherland-American Steam 
 Nav. Co. V. Hollander, 59 Fed. Eep. 
 417; Dennis v. Glaik, 2 Cush. 347, 48 
 Am, Bee. 671; Burden v. Bamett, 7 
 Ala. 169; Clark v. Bayer, 32 Ohio St. 
 S99, 30 Am. Rep. 593; Cuming v. 
 Bailway Ca, 109 N. T. 95. But not 
 for the loss of service without proof 
 of such loss. Whitaker v. Warren, 
 60 N. H. 20, 49 Am Rep. 302. 
 
 1 A widowed mother may recover 
 for injury to a minor child which 
 lives with her and is supported by 
 her. Horgan v. Pacific MiUs, 158 
 Mass. 402. And a mother who, with 
 her minor child, has been abandoned 
 by the husband, may maintain an 
 action for an injury to the child. 
 
 Savannah F. & W. R. Co. v. Smith 
 (Ga.), 21 S. E. Rep. 157. 
 
 2 It must be averred that the de- 
 fendant knew of the relation. But- 
 terfield v. Ashley, 6 Cush. 249. 
 
 'Magee v. Holland, 27 N. J. 86, 72 
 Am. Dec. 341; Dobson v. Cothran, 34 
 S. C. 518. 
 
 * See Cowden v. Wright, 24 Wend. 
 429, 35 Am. Dec. 633. 
 
 *See Horgan v. Pacific Mills, supra. 
 
 6 Rogers v. Smith, 17 Ind. 323, 79 
 Am. Dec. 483. The parent may re- 
 cover notwithstanding a recovery in 
 an action by the child. Evansich v. 
 a, C. etc. R. Co., 57 Tex. 126, 44 Am. 
 Rep. 586. But the parent cannot re- 
 cover for the child's suffering; nor 
 can the child, if supported a^nd cared 
 for by the parent, recover for the 
 loss of services, or for expenses in- 
 curred by the injury. See Horgan 
 V. Pacific Mills, supra. 
 
 T Everett v. Sherfey, 1 Iowa, 356; 
 Butterfleld v. Ashley, 6 Cush. 249. 
 And see Sargent v. Mathewson, 88 
 N. H.54 
 
INJUEIES TO FAMILY EIGHTS. 83 
 
 TJpon the question whether the father can sustain an action 
 against one who entices from his service his minor daughter 
 and procures her to he married to a third person without his 
 consent, the cases are not in harmony. In Massachusetts it is 
 held that, if the girl is of the age of legal consent, no such ac- 
 tion can he maintained, for the reason that " the law of mar- 
 riage entirely overrides the general principles of right of the 
 parent to the services of the child." ^ In a case in Kentucky 
 the action was allowed, but the damages were restricted to the 
 time which elapsed previous to the time when the marriage 
 actually took place.* 
 
 Seduction. — A father suing for the seduction of a daughter 
 actually at the time a member of his household, is entitled to 
 recover in his capacity of actual master for a loss of services 
 consequent upon any diminished ability in the daughter to 
 render services. Evidence that the daughtei* was not accus- 
 tomed to render service wiU. not be received. And while this 
 supposed loss wiU constitute the nominal ground of recovery,* 
 a substantial award of damages wiU be supported, based on the 
 loss of the society of the daughter, the injury to the parental 
 feelings, and the shame and mortification which must foUow 
 from such a wrong, which are the real constituents of the 
 cause of action. To this may be added any pecuniary expense 
 which the parent has sustained for care, medical attendance, 
 etc.* 
 
 If the daughter was not actually a member of the father's 
 household at the time, yet if she were not in the' actual serv- 
 ice of another, and the father had a right to recall her to his 
 
 1 Hervey v. Moseley, 7 Gray, 479, being sufScient that the father is at 
 66 Am. Deo. 515. And see Holland the time entitled tp the services 
 v. Beard, 59 Miss. 161, 43 Am. Eep. of the daughter. See Lawyer v. 
 360. Fiitcher, 130 N. Y. 339, 14 L. R. A. 
 
 2 Jones V. Tevis, 4 Litt. 35, 14 Am. 700. It makes no difference whether 
 Dec. 98. the loss of service is accomplished 
 
 3 See White v. Nellis, 31 N. T. 405, by fraud upon the master or force 
 88 Am. Dec. 383. Proof of any loss upon the servant (daughter). Law- 
 of service, however slight, win be yer v. Fritcher, supra. 
 
 sufficient Blagge v. Ulsley, 127 ^Blanchard v. lUsley, 120 Mass- 
 Mass. 191, 34 Am. Rep. 361. And it 487, 26 Am. Rep. 535; Bayles v. Bur- 
 lias been held that the suit may be gard, 48 IIL App. 371 ; Terry v. 
 maintained though no expense or Hutchinson, L. R. 3 Q. B. 599; Scar- 
 actual loss of service is proved, it lett v. Norwood, 115 N. C. 284. 
 
84 KTJUEIES TO FAMILY EIGHTS. 
 
 own service, he might maintain the action the same as if she 
 actually had been recalled or had returned.^ 
 
 In England, if the daughter was actually in the service of 
 another, no action could be maintained by the parent, because 
 the conditions which support it did not then exist.' In such a 
 case the person in whose employ she was for the time being 
 might maintain the suit, unless he himself were the wrong-doer, 
 in which case it could not be brought at all.' 
 
 In America, however, the weight of authority seems to sus- 
 tain the rule that the father may maintain the action, though 
 at the time the daughter was living away from home, if he has 
 retained the right to control her services.* And tliis even 
 though she was in the service of one by whom she was se- 
 duced.' But not if he has relinquished aU right to her services 
 and aU control over her.* And if the defendant procures the 
 woman to enter his service fraudulently, and for the purpose 
 of withdrawing her from her family and seducing her, the par- 
 ent may maintain the action against him.' 
 
 The time when the cause of action is deemed to have ac- 
 crued may depend upon the form of action, which may be 
 either in trespass or case. If the wrong-doer comes upon the 
 premises of the plaintiff and adoomplishes the seduction there, 
 the wrongful act characterizes his entry upon the land, and the 
 seduction is to be regarded as an aggravation of the trespass.' 
 Therefore the parent can bring trespass only when the daughter 
 resided witii hitn at the time of the seduction. But if the 
 daughter, after seduction abroad, returns to the home of her 
 parents, where expenses are incurred and loss suffered in con- 
 
 iSee Bolton v. Miller, 6 Ind. 365; 'Simpson v. Grayson, 54 Ark 404 
 
 Kennedy V. Shea, 110 Mass. 147, 14 « See Ogborn v. Francis, 44 N. J. L. 
 
 Am. Rep. 584. 441, 43 Am. Eep. 394; Schmit v. 
 
 2 Dean v. Peel, 5 East, 49. See MitcheU (Miim.), 61 N. W. Eep. 140. 
 
 O'Rielly v. Glavey, 33 L. R. Ir. 316 If the daughter is living in the 
 
 (Ex. D.) father's family and rendering serv- 
 
 SManvell v. Thomson, 3 C. & P. ice, it is immaterial that she is of 
 
 303; Bennett v. Alcott, 3 T. R 166; full age. Wert v. Strouse, 88 N. J. 
 
 Gladney v. Murphy, 26 L. R. Ir. 651 L. 184; Lamb v. Taylor, 67 Md. 85. 
 
 (Q. B. D.). 7 Dain v. Wyckofl, 18 N. Y. 45, 72 
 
 * White V. Murtland, 71 111. 350, 23 Am. Deo. 493. 
 
 Am. Rep. 100; Mohry v. Hoffman, 86 SHubbell v. Wheeler, 3 Aik. (Vt.) 
 
 Pa. St. 858; Lavery v. Crooke, 53 859; Moran v. Dawes> 4 Cow. 412. 
 Wis. 613, 38 Am. Rep. 768. 
 
INJ OKIES TO FAMILY EIGHTS. 85 
 
 sequence of the seduction, tlie right of action is deemed to 
 arise from this expense or loss, and the action must be in case 
 for the consequential injury. It is sufficient, therefore, that 
 the actual or supposed relation of master and servant exist 
 either at the time of the seduction or at the time of the result- 
 ing damage ; the form of the remedy is varied to meet the 
 facts, but the substantial recovery is the same in each case.' 
 
 It is not essential to the maintenance of the suit that preg- 
 nancy or sexual disease should have resulted ; it is sufficient if 
 the ability to perform services was in any degree impaired as 
 a direct consequence of the defendant's conduct.' 
 
 If the father is deceased, the mother may bring the action 
 > for the injury.* * 
 
 The damages, as has been intimated, are by no means meas- 
 ured by the loss of service and the incidental care and expelises, 
 but may be given " also ' for aU that the plaintiff can feel from 
 the nature of the injury.' " * Thus it appears that the substan- 
 tial ground of recovery is not the ground on which the action 
 is nominally planted. Many courts have expressed their dis- 
 satisfaction with the existing rules on the subject and have 
 declared this state of the law to be " at variance with the senti- 
 ment and conscience of this age." ' To remedy the evil the 
 legal fiction has been abolished by statute in some of the 
 states, and it is there not necessary to recovery by the parent 
 that he shall rest his action upon loss of service.* 
 
 1 Parker v. Meek, 3 Sneed, 39; in England. Eager v. Grim wood, 1. 
 
 Ellington v. Ellington, 47 Miss. 329; Ex. 61. 
 
 White V. Murtland, 71 IlL 350, 23 Am. ' Coon v. Moffitt, supra; Furman 
 
 Kep. 100; Vanhom v. Freeman, 6 N. t. Van Sise, 56 N. Y. 435, 15 Am. Eep. 
 
 J. L. 332, and note; Blagge v. Ilsley, 441. 
 
 127 Mass. 191, 34 Am. Rep. 361. But * 2 Greenl. on Ev., § 579, quoted in 
 
 in Hartley v. Richtmeyer, 4 N. T. 38, Phelin v. Kenderdine, 20 Pa. St. 354. 
 
 53 Am. Dec. 338, it is held that the See, also, to the same effect, Lipe v. 
 
 relation must have existed at the Eisenlerd, 32 N. Y. 229; White v. 
 
 time of the seduction. And this Murtland, 71 IlL 250; Lawyer v. 
 
 seems to be the rule in England. Fritcher,130N.Y.239; 14L.R.A.700; 
 
 Davies v. Williams, 10 Q. B. 725. See, Russell v. Chambers, 31 Minn, 54; 
 
 however, Coon v. Moffitt, 3 N. J. L. Garretson v. Becker, 62 111. App. 255. 
 
 583, 4 Am. Dec. 392, opinion of Pen- ' See Ellington v. Ellington, 47 
 
 nington, J. Miss. 829, 351. 
 
 » Abrahams v. Kidney, 104 Mass. « See Felkner v. Scarlet, 29 Ind. 154; 
 
 222, 6 Am. Eep. 320; Blagge v. Ilsley, Stoudt v. Shepherd, 73 Mich., 588; 
 
 supra. It has been held otherwise Franklin v. McCorkle, 16 Lea, 609, 67 
 
86 IKJXTEIES TO FAMILY EIGHTS. 
 
 Independent of statute the woman conld not sue for her own 
 seduction. In many states, however, the statutes give her the 
 rightji and, to affect the damages, she may prove all the conse- 
 quences of the seduction.* 
 
 At common law, if the plaintiff was assenting to the seduc-: 
 tion, or connived at it, or quietly permitted such improper 
 action on the part of the defendant as led to it, there can be 
 no recovery.' 
 . Wrongs to a child. — For an injury suffered by the child in 
 that relation no action will lie at the common law. The only 
 way in which the obligation of the parent to support him can 
 be enforced is by proceedings on behalf of the pubUb. And no 
 action will lie against a third person for depriving a child of 
 his source of support by means of an injury to the parent. As 
 has been heretofore intimated, the common law does not invest 
 a child adopted into the family with the rights of a child by 
 birth. Nevertheless, in the case of an adopted child, the rem- 
 edies in respect to third persons will be the same, while the 
 relation exists, as they would be in the case of a child by 
 nature. 
 
 Action Iby guardian. — The guardian of the ward's person 
 may, in general, maintain suits for personal injuries to the 
 ward when, under corresponding circumstances, the parent 
 might maintain them. On the ground that he has control over 
 the minor's services, it has been held that he may bring suit 
 for the seduction of his female ward.* But in Massachusetts, 
 where he has no such control, the contrary has been held.* 
 
 Loss of marriage.^ In nearly all of the states the only ia- 
 dispensable prerequisite to entering into the marriage relation 
 is that of competent consent. If, after consent once given, one 
 of the parties refuses performance, this, in law, is a mere breach 
 
 ■Am. Eep. 244; Fry v. Leslie, 87 Va. ''' McCoy v. Trucks, supra. 
 
 369. 8 Smith v. Mastin, 15 Wend 270; 
 
 1 See McCoy v. Trucks, 121 Ind. Vassell v. Cole, 10 Mo. 634, 47 Am. 
 
 292; Baird v. Boehner, 77 Iowa, 623; Dec. 136. 
 
 Hood V. Sudderth, 111 N. C. 215; Gra- * Fernsler v. Moyer, 3 W. & S. 416, 
 
 ham V. McEeynolds, 90 Tenn. 678. 39 Am. Dec. 33. 
 
 Under such statutes it has been held » Blanchard v. Hsley, 120 Mass. 487, 
 
 that she cannot recover if she is 26 Am. Eep.- 535. 
 equally guilty with the man. Breon 
 V. Henkle, 14 Oreg. 494 
 
htjukles to family eights. 87 
 
 of contract, except where, by means of the contract of mar- 
 riage, the man has been enabled to accomplish the woman's 
 seduction. The case then becomes a gross fraiud, and may be 
 prosecuted as a tort. 
 
 In general, no action wiU lie against a third person who, by 
 solicitations or otherwise, shall induce one to break off an exist- 
 ing contract of marriage. But where the party is induced to 
 break off the engagement by false and damaging charges not 
 actionable ^e/" se, there may be such a special injury as wOl sup- 
 port an action for the defamation. The loss of the marriage 
 in this case is only the damage flowing from the injury. If a 
 contemplated marriage be prevented by the forcible separation 
 of the parties, or by the imprisonment of one of them, the 
 party subjected to the illegal force, though he might have an 
 action in the one case for assault, and in the other for false im- 
 prisonment, could not base an action on the loss of marriage. 
 Tet it has been held that where one breaks up an intended 
 marriage by falsely and maliciously representing to the in- 
 tended husband that the woman is already his own wife, the 
 woman may have an action for the fraud.^ 
 
 The age of consent to marriage is usually below the age of 
 full capacity to act on the child's own behalf, and is merely 
 the ^.ge fixed by law, below which a marriage is voidable. In 
 strictness of law, the minor chUd, when he reaches the age of 
 consent, has not the right, but only the capaGiiy, to form the 
 relation of marriage. While, previous to the child's legal 
 emancipation, the parent may withhold his consent from a con- 
 templated marriage, and break it up, yet if a child, over the 
 age of consent, succeed in entering into the relation of mar- 
 riage, the marriage will be sustained on groimds of publio 
 policy, and parental rights will be made to yield to it.^ 
 
 Fraudulent marriage. — A very serious wrong may be ac- 
 complished by inducing one, through misrepresentation and 
 fraud, to enter into an illegal marriage. In an early case it was 
 decided that where a married man, by falsely assuming to be 
 single, induced a woman to marry him, she might, on discov- 
 ering the deception, maintain an action against him for the 
 
 1 Shepherd v. 'Wakeman, 1 Sid. 79. 479, 66 Am, Dec. 515; Aldrich v. Ben- 
 
 2 See Hervey v. Moseley, 7 Gray, nett, 63 N. H. 415, 56 Am. Eep. 539. 
 
88 INJUEIES TO FAMILY EIGHTS. 
 
 injury .1 The tort, in. such a case, consists in the fraud accom- 
 plished to the woman's serious, and perhaps permanent injury. 
 It is not essential that any false affirmations should have been 
 made in words. A proposal of marriage isy in itself, a false af- 
 firmation if the party has not lawful authority to enter into 
 the contract. Known impotency on the part of the man, and 
 pregnancy of the woman by another man at the time of the 
 marriage, concealed from the husband, are grounds for annul- 
 ling the marriage, but not for an action at common law.* 
 
 Where a marriage is entered into in reliance upon a fraudu- 
 lent divorce procured from a court not having jurisdiction, 
 with one not aware of the facts, the wrongs committed are 
 precisely the same as if no such divorce had ever been obtained. 
 
 Burial rights. — The common law recognized a property in 
 the shroud or other apparel of the dead as belonging to the 
 person who was at the charge of the funeral;' but its recog- 
 nition of legal rights in the family, aS an aggregate of per- 
 sons, in respect to the burial of the dead was very faint and 
 uncertain. In Indiana it is held that the bodies of the dead 
 belong to the surviving relatives in the order of inheritance as 
 other property, and that the courts of the state possess the 
 power to protect the relatives in the exercise of the right of 
 burial.* And in a late case in Minnesota a widow was allowed 
 to recover damages for the unlawful mutilation and dissection 
 of the body of her deceased husband.' 
 
 In Pennsylvania it has been held that the widow's control 
 of the body ceases at burial, and that thereafter the disposition 
 of it belongs to the next of kin.' But a recent case in Khode 
 Island decided that a widow had a right to remove the body 
 when it had been buried by next of kin in a particular ceme- 
 tery against her wishes.'' 
 
 1 See Anon., Skinner, 119. In Bios- v. Driscoll, 99 Mass. 381, 96 Am. Dec. 
 som V. Barrett, 37 N. Y. 434^ 97 Am. 759. 
 
 Deo. 747, this doctrine was applied * Eenihaus v. Wright, 125 Ind. 536, 
 
 to the case of one from whom his 9 L. B. A. 514. 
 
 wife had procured a divorce, leav- » Larson v. Chase, 47 Minn. 307, 14 
 
 ing him incapacitated to marry L. R A. 85, and note. 
 
 again during her life-time. « Wynkoop v. Wynkoop, 43 Pa. St 
 
 2 Donovan v. Donovan, 9 Allen, 140 ; 393, 82 Am. Dec. 506. 
 
 Franke v. Franke (Cal.), 18 L. R. A. 'Hackett v. Hackett, 18 R. I. — , 
 
 375, and note. ' 19 L. R. A. 558. See Pierce v. Swan 
 
 « 2 Cooley's Blk. Com. 429 ; Meagher Point Cemetery Proprietors, 10 E. I. 
 
HTJUEIES TO FAMILY EIGHTS. 0\f 
 
 For an injury to the monument an action of trespass might 
 he hrought by the owner of the burial lot, or, if there was no- 
 private ownership in the lot, then by the party erecting it.^ 
 
 Exemption laws. — One of the most distinct instances of 
 recognitions of the family, as such, for the purposes of legal 
 remedy, is to be found in the constitutional and statutory pro- 
 visions exempting property of householders from levy and sale 
 on legal process for the satisfaction of debts. The benefit of 
 the homestead is, in many of the states, continued to tho 
 family after the owner's death, so long as they, as a family^ 
 occupy it.* 
 
 Master and servant. — Generally the loss which the master 
 suffers in this relation at the hands of others is limited to serv- 
 ices, but may extend to expenses incurred in care of the serv- 
 ant, and for medicine and other incidental expenses, when the 
 loss is occasioned by some violence to the servant or injury to- 
 his health. The principles which govern the recovery have 
 been sufficiently indicated in speaking of parent and child.* 
 The wrongs which the servant himself might suffer at the 
 hands of third persons would be redressed independent of the 
 relation.* 
 
 Injuries resulting from the use of intoxicating liquors. — 
 In recent years statutes have been passed in many of the 
 states giving to husband, wife, parent, child or guardian, and 
 sometimes to other parties, for injuries done by intoxicated 
 persons, the right to maintain actions against the person or 
 persons who may have sold or given the liquors which caused 
 the intoxication. The recovery may extend to cover injuries 
 to means of support, the expense and trouble of caring for the 
 intoxicated person, and other injuries and losses which are 
 particularly pointed out in the statutes. These provisions are- 
 for the benefit and protection of the family, and are therefore- 
 
 227, 14 Am. Rep. 667, -where the right referred to the statutes and decis- 
 
 of the -wido-w was denied on the ions of his own state. 
 
 ground of long acquiescence. ' And see La-wyer v. Fritcher, 130 
 
 iSpooner v. Brewster, 3 Bing. 136; N. Y. 239, 14 L. E. A. 700; also Cham- 
 Partridge V, First Independent bers v. Bald-win, and note, 11 L. E. A, 
 Church, 39 Md. 631. 548; and Rourlier v. Macauley, 91 
 
 2 See Waples on Homestead and Ky. 135, 11 L. R. A. 550. 
 
 Exemption. For a more particular * See Fluker v. Ga. S. & Bkg. Co., 
 
 study of this subject the student is 81 Ga. 461, 2 L. R. A. 843. 
 
■^0 INJUEIES TO FAMILY EIGHTS. ' 
 
 properly referred to here. But the limits of this book -will not 
 ■allow a presentation of all the statutes on the subject, and 
 therefore the statute of Uliaois has been selected as a fair sample. 
 
 In that state it is provided that — 
 
 "Every person who shall, by the sale of intoxicating liquors, 
 'with or without a license, cause the intoxication of any other 
 person, shall be liable for, and compelled to pay, a reasonable 
 -compensation to any person who may take charge of and pro- 
 vide for such intoxicated person, and two dollars per day in 
 addition thereto for every day such intoxicated person shall be 
 kept in consequence of such intoxication, which sums may be 
 recovered in an action of debt before any court having com- 
 petent jurisdiction. 
 
 " Every husband, wife, child, parent, guardian, employer or 
 -other person, who shall be injured in person or property or 
 means of support by any intoxicated person, or in consequence 
 of the intoxication, habitual or otherwise, of any person, shall 
 have a right of action in his or her own name, severally or 
 jointly, against any person or persons who shall, by selluig or 
 giving intoxicating liquors, have caused the intoxication, in 
 whole or in part, of such person or persons ; and any person 
 owning, renting, leasing, or permitting the occupation of any 
 building or premises, and having knowledge that intoxicating 
 liquors are to be sold therein, or who, having leased the same 
 for other purposes, shall knowingly permit therein the sale of 
 •any intoxicating liquors that have caused, in whole or in part, 
 the intoxication of any person, shall be liablej severally or 
 jointly, with the person or persons selling or giving intoxicat- 
 ing liquors aforesaid, for aU damages, sustained, and for exem- 
 plary damages; and a married woman ^haU have the same right 
 to bring suits and to control the same and the amount recov- 
 ered, as a feme sole; and aU damages recovered by a minor 
 under this act shall be paid either to such minor, or to his or 
 her parent, guardian or next friend, as the court shall direct; 
 ^nd the unlawful sale or giving away of intoxicating liquors 
 fihall work a forfeiture of all rights of the lessee or tenant under 
 any lease or contract of rent upon the premises where suchun- 
 kwful sale or giving away shall take place; and all suits for 
 ^aniages under this act may be by any appropriate action in 
 .any of the courts pf this state having competent jurisdiction. 
 
DTJUEIES TO FAMILY EIGHTS. 91 
 
 " The giving away of intoxicating liquors, or other shift or 
 device to evade the provisions of this act, shall be held to be an 
 unlawful selling." ^ 
 
 These statutes give a right of action unknown to the com- 
 mon law and are to be construed strictly.* If the wife Ijrings 
 the action she can recover only for injury in person, property 
 or means of support, and not for anguish of mind, mortifica- 
 tion or loss of her husband's society.' If a wife bring suit it is 
 necessary to a recovery under this act to establish: the intoxica- 
 tion of the husband ; that she has been injured in person or 
 property, or means of support, by reason thereof; and that the 
 intoxication from which the injury resulted was caused, in 
 whole or in part, by the seUiag or giving intoxicating liquors 
 to her husband by the defendant.* Exemplary damages can be 
 recovered only where there has been actual damage and where 
 aggravating circumstances are shown.* When exemplary dam- 
 ages are claimed, the defendant may show facts in mitigation ; 
 as, for example, that the husband and wife drani; liquors to- 
 gether.* Proof of injury to means of support may be made out 
 by circumstances.'' It is no defense that others also sold liq- 
 uors to the husband; but where several are liable there can 
 
 IE. S. 1874, §§ 8, 9, 13; Starr & jury to the person. Ward v. Thomp. 
 
 Curt. Anno. Stat., p. 971 et seq. The son, 48 Iowa, 588. 
 
 following states also have statutes ^McMahon v. Sankey, 133 111. 636. 
 
 on this subject: Arkansas, Con- And see Fountain v. Draper, 49 Ind. 
 
 necticut, Indiana, Iowa, Kansks, 441. 
 
 Maine, Massachusetts, Michigan, SRoth t. Eppy, 80 HI 283; Hane- 
 Missouri, Nebraska, New Hampshire, wacter v. Ferman (lU.), 61 N. W, 
 New York, North Carolina, Ohio, Eep. 924 In Iowa, if actual dam- 
 Pennsylvania, Ehode Island, Ver- ages are given, exemplary damages 
 mont. West Virginia and Wisconsin, must be added. Miller v. Hammers 
 
 2 And so the last section given is (Iowa), 61 N. W. Eep. 1087; Fox v. 
 
 held to apply to those only who are UnderKch, 64 Iowa, 187. 
 
 engaged in the liquor traflSc, and ^Eoth v. Eppy, 80 111.383; Lloyd 
 
 not to cover the case of one who, in v. KeUy, 48 111. App. 554. But it does 
 
 his- own house, gives a drink out of not affect the case that the wife on 
 
 courtesy. Cruse v. Aden, 137 IlL 231, one occasion drank with her bus- 
 
 3 L. E. A. 327. band in their home. Eudley v. 
 
 SFlynn v. Fogarty, 106 IlL 263. Seider, 99 Mich. 431, 58 N. W. Eep. 
 
 The rule is otherwise xmder the stat- 366. See Bradford v. Boley, 31 Atl. 
 
 utes in Michigan. Eudley v. Seider, Eep. 751. 
 
 99 Mich. 431. It has been held in 'Horn v. Smith, 77 IlL 381. "Means 
 
 Iowa that mental suflEering maybe of support " embraces those comforts 
 
 compensated if it is the result of in- which are suitable to the complain- 
 
92 EffJUEIES TO FAMTT.Y EIGHTS. 
 
 be but one recovery for the injury.^ All persons who fur- 
 nished liquor contributing to the intoxication may be joined^ 
 or one may be sued.* It is immaterial whether the sale was 
 made by the defendant in person or by a servant.' The dam- 
 age sustained must be correctly described in the declaration; 
 if the wife complains only of loss of means of support, evidence 
 should not be received of an injury to her person.* 
 
 In some of the states a remedy is given by the act where 
 death results.* In other states it has been held that an action 
 may be maintained after the death of the intoxicated person, 
 necessarily attributable to the intoxication.* Under the Civil 
 Damage Act, in Michigan, it is held to be sufficient if the act 
 was done while the person was intoxicated, in whole or in part, 
 by liquors sold by the defendant ; it is not essential there that 
 the act of the intoxicated person which caused the injury 
 should be the natural, reasonable or probable consequence of 
 his intoxication.' 
 
 By some of the statutes it is essential to the maintenance of 
 the action that the defendant had notice not to sell liquors to 
 the person who was in the habit of drinking to excess.' And it 
 is held, under such statutes, that the relationship required in 
 the act must appear from the notice, or that the notice must 
 put its receiver upon inquiry to ascertain the relationship.' 
 
 Actions for causing death by wrongful act. — At the com- 
 mon law any right of action arising from an act causing the 
 
 ant's condition in life. McMahon v. ^ See Mead v. Stratton, 87 N. Y. 
 
 Sankey, 133 IlL 686; Schneider v. 493; Haokett v. Smelsley, 77 IlL 109; 
 
 Hosier, 31 Ohio St. 98. Schneider v. Hosier, 21 Ohio St 98. 
 
 1 Emory v. Addis, 71 HI. 273. See And see Miller v. Hammers (Iowa), 
 Jockers v. Dorgman, 29 Kan. 109. 61 N. W. Eep. 1087. 
 
 To make the seller liable, the selling ' Brockway y. Patterson, 72 Mich, 
 
 must have contributed to the partic- 122,1 L. E. A. 708; Eddy v. Court- 
 
 ular act of intoxication. See Bryant right, 91 Mich. 264 But see Backus 
 
 V. TidgeweU, 133 Mass. 86. v. Dant, 55 Ind. 181. 
 
 2 Fountain v. Draper, 49 Ind. 441 ; s See Pub. St. Mass., oh. 100, sec. 25; 
 Jones V. Bates, 36 Neb. 693, 4 L. E. A. Rev. Stat. N. H. 1867, p. 210, sea 22; 
 495. Ohio Laws of 1875, p. 35; Rhode 
 
 3 See Peterson v. Knoble, 35 Wis. Island Laws of 1875, p. 24, sec. 34; 
 80; Worley v. Spurgeon, 88 Iowa, N. Y. Laws, 1892, ch. 403; Quinlan v. 
 465. Welch, 141 N. Y. 158. 
 
 *Hackett v. Smelsley, 77 IlL 109. sgaokett v. Ruder, 152 Mass. 397, 
 
 "See Bedore v. Newton, 54 N. H. 9 L. R, A. 391. 
 117; Laws of Vermont of 1874, p. 63. 
 
INJUEIES TO FAMILY EIGHTS. 93 
 
 death of a human being must be a right not springing from 
 the death itself. The same act which deprives a master of the 
 services of his laborer, or a father of those of his child, may 
 residt in the death of the servant or child. In these cases the 
 master or parent suing might recover for the loss of services 
 for the time only intermediate the injury and the death, and 
 for the necessary expenses incurred for medical attendance, 
 care and nursing, and the like, up to that time, but not for 
 mental suffering.* And so where death was instantaneous, as 
 well as in very many other cases, no redress at all was possible 
 at common law. The English statute known as Lord Camp- 
 bell's Act, passed in 1846, was the first attempt to remedy this 
 great defect. By that act the personal representatives of any 
 one whose death should be caused by any wrongful act, neglect 
 or default, were given a right of action against the person 
 who would have been liable for such act, neglect or default, to 
 such injured party, if death had not ensued. The action was 
 declared to be given for the benefit of the wife, husband, par- 
 ent and child of the deceased person; and the damages were 
 directed to be proportioned among such parties by the jury in 
 their verdict.* Most of the legislation in America on the sub- 
 ject is modeled after this act. 
 
 The statute gave an action only when the deceased himself, 
 if death had not ensued, might have maintained one. There- 
 fore there could have been no suit under the statute if the 
 party injured had accepted satisfaction for the injury, previous 
 to the death.' So, too, if the negligence of the person killed 
 contributed proximately to the fatal injury, no action could be 
 maintained on the statute, because he himself could have 
 brought none had the injury not proved fatal.* And gen- 
 erally, if the injury is caused by the negligence of a fellow- 
 
 iSee Hyatt v. Adams, 16 Mich. Cordell v. New York, etc. Co., 75 
 
 180; Green v. Hudson River B. E. N. Y. 330; Parsons v. Mo. Pac. R. 
 
 Co., 3 Keyes, 294; Sherman t. John- Co., 94 Mo. 286. In Massachusetts, 
 
 son, 58 Vt 40. however, and in some other states, 
 
 2 St 9 and 10 Vici, ch. 93, §§ 1 contributory negligence is no de- 
 and 2. fense. Merrill v. East. R. R. Co., 139 
 
 3 Read v. Great East. R. R. Ca, L. Mass. 252. And see cases cited in 
 R. 3 Q. B. 555; Little wood v. Mayor, note to Usher v. West Jersey R. Co., 
 etc., 89 N. Y. 24^ 43 Am. Rep. 271. 4 L. R A. 263. 
 
 < Senior v. Ward, 1 EL & EL 385; 
 
94: INJUMES TO FAMILY EIGHTS. 
 
 servant, no action will lie under the statute against the master.* 
 In Massachusetts no action can be maintained if death was 
 instantaneous.^ 
 
 But there is in the United States a class of statutes quite 
 distinct from Lord Campbell's Act, and which give to some 
 designated beneficiary or beneficiaries a right of action that 
 only comes into existence after the death, and which is not the 
 survival, continuation or enlargement of any pre-existing right.* 
 In the main, however, the same principles must be applied in 
 an action under these statutes as govern the action under 
 Lord Campbell's Act. 
 
 The remedy is local. — In several states it is held that the 
 remedy is purely local, and can be brought in the state only 
 whose statutes give it, and where the killing takes place.^ This 
 was formerly the rule in !N"ew York; but now it is held there 
 that an action wiU lie for a death in another state, if the stat- 
 utes of the latter state are substantially like those of New 
 York.* And the supreme court of the United States has held 
 that an action wiU lie in ISTew York upon the New Jersey stat- 
 ute for a death occurring in New Jersey, through the negli- 
 gence of a New Jersey corporation, at the suit of a New York 
 administrator.* And it has lately been held that a widow may 
 maintain an action in New York for the death of her husband 
 in Pennsylvania (the statute of the latter state allowing the 
 widow to bring suit), though in New York the personal repre- 
 sentative only has the right of action.'' But a suit cannot be 
 
 1 Relyea v. K. C, Fort Scott & Gulf < McCarthy v. Chicago, etc. E. Co., 
 R. Co., 113 Mo. 86, 18 L. E. A. 817; 18 Kan. 46, 26 Am. Eep. 742. A for- 
 Lutz V. Atlantic & Pac. E. Co. (N. M.), eign administrator cannot sue under 
 16 L. R A. 819; Clark v. Ni Y., P. & the statute. Maysville St. E. Ca v. 
 B. E. Co., 160 Mass. 39. In Iowa, Marvin, 59 Fed. Rep. 91. 
 however, the statute is construed to 8 Leonard v. Columbia, etc. Co., 84 
 allow the action. See Philo v. ILL N. Y. 48, 38 Atd. Rep. 491. See, also. 
 Cent. R. Co., 83 Iowa, 47. Morris v. Chicago, etc. Co., 65 Iowa, 
 
 2 See Kennedy v. Standard Sugar 727, 54 Am. Eep. 39; Bums v. G. R. 
 Refinery, 135 Mass. 90, 28 Api. Eep. & L Co., 113 Ind. 169; Chicago, etc. 
 219. But by the Employers' Lia- Co. v. Doyle, 60 Miss. 977; Knight v. 
 bility Act the action may be main- "West Jersey E. E. Co., 108 Pa. St 
 tained by the widow or next of kin 250. 
 
 in such a case. EamsdeU v. N. Y. « Dennick v. Railroad Co., 103 U. S. 
 
 & N. E. R Co., 151 Mass. 245. 11. 
 
 3 See Georgia Code of 1873, p. 511, 'Wooden v. West N. Y. & Pa. R 
 § 2971. Co., 136 N. Y. 10, 13 L. R A. 458. 
 
mjUEIES TO FAMILY EIGHTS. 95- 
 
 maintained in Pennsylvania for the killing of the plaintifif'^ 
 husband in New Jersey, where the statute of New Jersey gives 
 the right of action to the administrator.^ 
 
 The defendant. — By some statutes a remedy is given against 
 
 -railroad companies only ; but where there is no restriction as. 
 
 to the parties who shall be liable, the action may be brought 
 
 against not only natural persons, but corporations, public &&■ 
 
 well as private.'' 
 
 The plaintiff. — Most commonly the action is given to the 
 executor or administrator of the person killed; and an admin- 
 istrator may be appointed for the purpose of bringing it though 
 there be no estate.' In Arkansas there may be three actions- 
 prosecuted by the personal representative at the same time — 
 one for the benefit of the estate ; one for the benefit of the- 
 widow and next of kin ; and one for injuries to the party in his 
 life-time under the rule of the common law.* In many of the^ 
 states one or more of the parties to be benefited by the recov- 
 ery may sue. In California but one action is permitted, and 
 that may be maintained by either the personal representative 
 or the heirs of the deceased.' In Mississippi and Wisconsin the 
 widow only may sue for the death of her husband.^ In Kan- 
 sas, if there is no personal representative, the action may be- 
 brought by the widow, and if no widow, the next of kin of the 
 deceased. And the words, " next of kin," cannot be construed 
 to include the husband where the action is for the death of a. 
 wife.' In Kentucky, where the action is given to the " widow,. 
 heir or personsil representative," the word " heir " is construed 
 to mean child.' In Georgia, where " a widow, and if no widow, 
 
 1 Usher v. West Jeisey E. Co., 126 lins, 67 Mass. 672; Gores v. Graff, IT 
 
 Pa. St. 206, 4 L. E. A. 361. Wis. 174. 
 
 2 Chicago V. Starr, 42 IlL 174> 89 'West. U. TeL Co. v. McGiU, 57 
 
 Am. Dec. 422; Fleming v. Texas Fed. Eep. 699, 21 L. E. A. 818. In 
 
 Loan Agency C^ex.), 26 L. E. A. 250. New Jersey the action is "for the 
 
 ' Hartford, etc. E. Co. v. Andrews, benefit of the widow and next of 
 
 36 Conn. 213. kin," and the husband has no right 
 
 * Davis V. St. Louis, L M. & S. E. of action for the death of a wife. 
 
 Co., 53 Ark. 117, 7 L. R A. 283. Grosso v. DeL etc. E. Co., 50 N. J. L. 
 
 sMunro v. Pac. Coast D. & B. Co., 317. But in Illinois a similar statute 
 
 84 CaL 515. And in Illinois there is construed to give the husband a 
 
 may be. but one action. Beard v. remedy. C. C. C. & St. L.E. Co. v. 
 
 Skeldon, 113 lU. 584 Baddeley, 150 la 328. 
 
 'Natchez Cotton-Mills Co. v. Mul- s Jordan's Adm'r v. C, N. O. & T,. 
 
 P. E. Co., 89 Ky. 40. 
 
©6 INJtJEIES TO FAMILY EIGHTS. 
 
 a child or children may recover," it is held that if the widow 
 sues, and marries pending the suit, she may nevertheless pro- 
 ceed to judgment.^ If she dies pending the suit the action and 
 the right of action survive to the children, whose damages will 
 be measured by the injury to themselves.' 
 
 In general, where others than the personal representative 
 sue, no attempt is made to distribute the money among those 
 for whose benefit the action is given. 
 
 The ienefimiries^ — The cause of action is not given in favor 
 of the estate proper, and creditors, if the estate be otherwise 
 insolvent, can have no share in the recovery. The purpose of 
 these statutes is to make provision for members of the family 
 of the deceased who might naturally have calculated on receiv- 
 ing support or assistance from the deceased had he survived.* 
 Where the personal representative brings the suit, the recovery 
 must be a special fund to be paid over by him to the persons 
 for whom the statute intends it.* So if there be no person in 
 existence who would be entitled to the moneys recovered^ there 
 can be no action.' 
 
 Hie wrongful act, neglect or default must have been the 
 proximate cause of death. But it is the proximate cause if it 
 inflicts a fatal injury, though the death that would have re- 
 sulted is anticipated by an unskilful surgical operation.* 
 
 As to what constitutes a wrongful act, neglect or default, it 
 may be said that, in general, reference must be had to the 
 principles and considerations which govern in questions of 
 negligence where the results are less serious. And where the 
 
 1 Georgia E. E. Co. v. Garr, 57 Ga. sWestcott v. Cent. Vt E. Ca, 61 
 377, 34 Am. Eep. 493. Vt. 438. In general it is sufficient to 
 
 2 David V. Southwestern E. Co., 41 set forth the right of the personal 
 Ga. 333. representative to recover, without 
 
 ' A statute allowing recovery for alleging the rights of the distribu- 
 
 the benefit of " surviving children " tees. Howard v. DeL & Hudson 
 
 has been held to cover posthumous Canal Co., 40 Fed. Eep. 195, 6 L. E. A 
 
 children. Nelson v. G., H. & 8. A- E. 75. But see Qviinoy Coal Co. v., 
 
 Co., 78 Tex. 331, 11 L. E. A. 391. Hood, 77 111. 68; Walker v. L. S. & 
 
 < See Whitford v. Panama E. Co., M. S. E. Co. (Mich.), 62 N. "W. Eep. 
 
 23 N. T. 465; Chicago v. Major, 18 1032. In North Carolina, however, 
 
 p. 349; Munro v. Pac. Coast D, & and in one or two other states, the 
 
 E. Co., 84 CaL 515; State v. Probate action may be maintained in any 
 
 Court, 51 Minn. 241. In some of the event. "Warner v. "West N. C. E Ca, 
 
 states the statutes provide for the 94 N. C. 250. 
 
 manner of distribution. See N. H. 6 Sauter v. N. T. C. E. E. Ca, 66 N. 
 
 Pub. Laws of 1891, ch. 191. T. 50, 23 Am. Eep. 18. 
 
injtjEies to family eights. 97 
 
 act was one of intentional Yiolence, and the defendant alleges 
 justification or excuse, the question would be the same as in 
 •cases of trespass to the person. 
 
 The damages. — In England the rule is settled that the 
 action will not be supported to recover merely the nominal 
 ■damages which are supposed to flow from any technical legal 
 wrong ;i and the ground for this ruling seems to be that the 
 wrongful act, or default, is not shown to be a tort to the per- 
 son complaining of it until he shows that personally he has 
 suffered. Where, however, as in some of the states, the stat- 
 utes fix a minimum of recovery, that sum may be recovered 
 upon the making out of a technical ground of action without 
 any specific showing of loss.^ Both in this country and in Eng- 
 land the damages must be measured by the pecuniary losses ; 
 there can be no recovery merely for an injury to the feelings 
 and affections, or a loss of the comfort of the society of a per- 
 son kQled.' Exemplary damages are therefore not to be recov- 
 ered imless the statute expressly or by implication allows 
 them, as in some instances it does.* 
 
 In estimating actual damages it is essential to depart some- 
 what from the standards applied in other cases. The right of 
 a parent to recover, under the statutes, for the death of a 
 oluld killed while yet too young to render services, is unques- 
 tionable.* So the parent may recover for causing the death of 
 a child who was of full age and not residing with the parent, 
 and upon whom the parent would have no legal claim to any 
 assistance whatever. Here the parent may show his dependent 
 condition and the accustomed donations of the child, to in- 
 crease the damages.* These damages, then, are not to be given 
 
 1 Duckworth V. Johnson, 4 H. & ages are allowed when the fatal 
 N. 653. neglect is wilful. Jordan's Adm'r 
 
 2 See State v. Me. C. E., 76 Me. 357. v. Cin., N. O. & T. P. R. Co., 89 Ky. 
 'See Morgan v. So. Pac. Co., 95 40. 
 
 Cal. 510, 17 L. B. A. 71, and mote; Gulf, 5 Richmond & D. R Co. v. John- 
 
 C. & S. F. R Co. V. Southwlck (Tex. ston, 89 Ga. 560; Austin R.-T. R. Co. 
 
 Civ. App.), 30 S. W. Rep. 592. v. Cullen (Tex. Civ. App.), 29 S. W. 
 
 <See Galveston, H. & S. A. R Co. Rep. 256. For a case of excessive 
 
 V. Worthy (Tex.), 29 S. W. Rep. 376; damages see Morgan v. So. Pac. R. 
 
 Ill Cent. R Co. v. Grudup, 63 Miss. Co., supra. 
 
 ■291 ; Thompson v. Louisville & N. R. « North Penn. etc. Co. v. Kirk, 90 
 
 Co., 91 Ala. 496, 11 L. R A. 146. In Pa. St. 15. 
 Kentucky, by statute, punitive dam- 
 7 
 
98 - mJUEIES TO FAMILY EIGHTS. 
 
 as a solatium, nor as a satisfaction for the deprivation of a legal 
 right, but they must " be calculated in reference to a reason- 
 able expectation of pecuniary benefit, as of right or otherwise,, 
 from the continuance of the life." ^ 
 
 In some cases the reasonable expectation is fairly measured 
 by the lejgal right; as, where a w^idow sues for the death of her 
 husband, the loss of the reasonable support which he is legally 
 bound to furnish her is the measure of her recovery.^ In 
 PennsylTania, in an action for the loss of a father, the loss was. 
 said to be " what the deceased would have probably earned by 
 his intellectual or bodily labor in his business or profession 
 during the residue of his life-time, and which would have gone: 
 for the benefit of his children, taking into consideration ability , 
 and disposition to labor, and his habits of living and expendi- 
 ture." ' 
 
 In some cases the circumstances set a limit to the probable 
 ability to give assistance; as in the case of a laboring man who- 
 has no resources other than his daily earnings. In such a case 
 an award of $5,000 was held excessive.* But a verdict wiU not 
 be disturbed unless the excess is clear. 
 
 Many of the statutes fix a maximum of recovery, $5,000 
 being a common limitation.* 
 
 1 Pollock, C. B., in Franklin v. S. ' Sharswood, J., in Penn. R. Co. v.. 
 
 E. R. Co., 3 H. & N. 311. And see Butler, 57 Pa. St. 335. And see Gulf^ 
 
 Howard v. DeL & H. C. Co., 40 Fed. C. & S. F. R. Co. v. John (Tex. Civ. 
 
 Rep. 195, 6 L. R. A 75: MoUie Gib- App.), 29 S. W. Rep. 558. 
 
 son C. M. & M. Co. v. Sharp (Colo.), «See Illinois Cent. R. Co. v. Wei- 
 
 88 Pac. Rep. 850; and Austin Rapid- don, 53 HI 290. And see O'Donnell 
 
 Transit R. Co. v. Cullen (Tex. Civ. v. Me. C. R. Co. (Ma), 35 L. R. A. 658. 
 
 App.), 30 S. W. Rep. 578. 5 in New Hampshire $7,000 is fixed 
 
 ^Maoon, etc. R. R. Co. v. Johnson, as the limit; in Indiana, Eansa^ 
 
 38 Ga. 409. Ohio, Utah, Virginia, West Virginia,. 
 
 $10,000: in Montana, $20,000. 
 
CHAPTEE IX. 
 
 WRONGS EESPECTING CIVIL AND POLITICAL RIGHTS. 
 
 The term civil rights is not employed here in its most com- 
 prehensive sense. But for the sake of convenience such rights 
 as rights in real and personal property, incorporeal rights, etc., 
 are spoken of separately. The use of the term in this compara- 
 tively narrow sense has grown out of recent legislation, preclud- 
 ing discrimination against colored people, and it has not com- 
 monly been used as embracing certain fundamental rights, be- 
 cause as to these there was no controversy. 
 
 In referring to the wrongs which may be suffered in respect 
 to civU rights, particular rights wiU be mentioned, and the Itni- 
 its, the overstepping of which will constitute a violation of 
 right, either by the state or by individuals, wiU be indicated. 
 A wrong is not the less a wrong because of being committed 
 by the state through its legislation, and when thus committed 
 some individual actor is generally in position to be held respon- 
 sible. 
 
 State regulation of employments. — Every person sui juris 
 has a right to make use of his labor in any lawful employment 
 on his own behalf or to hire it out in the service of others. 
 The state must always be . at liberty to determine what are 
 lawful employments, and to niiake others unlawful by forbid- 
 ding them. The authority to regulate business embraces every 
 class and variety of occupation, and may be exercised either in 
 respect to the person who may be employed in the business, or 
 as to the methods in which the business may be conducted. 
 
 While there must be no exclusions from lawful employments, 
 nevertheless public policy may justify exceptions in some cases ; 
 as, for example, where persons are excluded because of some 
 reason peculiar to their cases, such as immaturity or imbecility, 
 which would render the employment hurtful to themselves or 
 dangerous to others.' Certain occupations which are peculiarly 
 
 1 The right to forbid the employ- plain. Com. v. Hamilton Mfg. Co., 
 ment of small children in mines is 120 Mass. 383. And the legislature 
 
100 WRONGS EESPECTING CIVIL AXD POLITICAL EIGHTS. 
 
 susceptible to abuse are generally surrounded by special re- 
 strictions, and those who propose to enter upon them are usu- 
 ally required to give security for their good behavior.' The 
 final test of what is a reasonable regulation must be found in 
 the legislative judgment, unless the constitution has provisions 
 on the subject.^ The provision of the constitution that no per- 
 son shall be deprived of life, liberty or property without due 
 process of law is important on this subject, because the right 
 to follow all lawful employments is an important part of civil 
 liberty. Under this provision regulations may not be framed 
 to exclude persons or classes.' By it the state is also forbidden 
 to grant monopolies in trade, which are illegal alike in England 
 and in this country. Nevertheless, special privileges or fran- 
 chises, when granted, may be made exclusive. For while the 
 following of the ordinary and necessary employments of life 
 can be made to depend upon the state's permission or hcense 
 only to the extent that, if the business is especially liable to 
 abuse, it may be subjected to special regulations, among which 
 may be the requirement of a license, yet, when the state gives 
 permission to do something not otherwise lawful, it may in its 
 discretion make the gift exclusive. This wrongs no one, be- 
 cause, as, for instance, in the grant of a right to set up a lot- 
 tery, no one had such a liberty before. 
 
 Right to form business relations. — Every man must be 
 left at liberty to refuse business relations with any person, 
 whether the refusal rests upon reason or is the result of caprice 
 or malice ; and if he is wrongfully deprived of the right to 
 havd business relations with any one with whom he can make 
 a contract, he is entitled to redress. Generally the wrong of 
 preventing a person from procuring some employment is the 
 result of some other legal wrong, and constitutes an aggrava- 
 tion of damages rather than a distinct cause of action. For 
 example, the libel of a serving man which prevents his employ- 
 may interfere to prevent children 129. See opinion of Gray, J., in this 
 under fourteen years of age from case. 
 
 being exhibited in spectacular per- i Asinthecaseof hackmen,saloon- 
 formances which, by reason of the keepers, etc. 
 
 lateness of the hour and the nature ^ gee Danville E. R. Co. v. Com., 73 
 of the surroundings, are deemed Pa. St. 29. 
 
 harmful to the well-being of the ' See Barbiur v. Connolly, 113 TJ. S. 
 child. People v. Ewct, 141 N. Y. 27; Yick Wo v. Hopkins, 118 U.S. 356. 
 
■\VEONGS KESPECTING CIVIL AND POLITICAX KIGHTS. 101 
 
 ment is itself a cause of action, and the loss of employment is 
 the proof that special damage has flowed from it.' "Where one 
 is induced by means, not in themselves unlawful, to refuse a 
 person employment, the wrong would be accomplished either 
 by the presentation of reasons or by means of a conspiracy. 
 In the former case, if there were no such false assertions as 
 would support an action, there would be no legal wrong ; in 
 the latter, if the conspiracy were made effectual by means of 
 unlawful acts, the wrong would be manifest. 
 
 -4. conspiracy, as the term is here used, is a combination of 
 two or more persons to accomplish, by some concerted action, 
 an unlawful end to the injury of another. It does not become 
 a legal wrong until the unlawful purpose is accomplished, or 
 until some act, distinctly illegal, is done towards its accom- 
 plishment.^ Xor is an object unlawful which can be accom- 
 plished by perfectly lawful means. 
 
 To induce a person, by inducements not unlawful in them- 
 selves, to refuse to contract for service, is not illegal; but to 
 break up a service actually entered upon is an actionable Avrong.* 
 But it has been held that a mere conspiracy to break a contract 
 for the delivery of property cannot constitute a tort, even 
 though the contract be broken in pursuance of it, for the party 
 to the contract might have broken his promise of his own voli- 
 tion without being liable as for wrong; but the reason for 
 the distinction is not clear, for it would seem that the right to 
 service has no such sacredness over any other right as to justify 
 a more complete protection. 
 
 "WhUe one has a right to refuse to be employed by another, 
 he has no right whatever to resort to compulsion of any sort 
 to keep others from the employment. A society of men may 
 lawfully unite in agreeing that they will not perform services 
 for those who employ laborers not associated Avith them ; but 
 they become wrong-doers the moment they interfere with the 
 
 ' See Vicars v. "Wilcocks, 8 East, 1. conspiracy to drive a trader out of 
 -'A man's business is property, business by fraudulent and mail- 
 See the opinion of the com-t in Barr clous acts, followed by damage. Van 
 V. Essex Trades Council (N. J. Eq.). 30 Horn v. Van Horn, 53 N. J. L. 284, 
 AtL Rep. 881. A conspiracy to injure 10 L. R. A. 184. 
 a teacher in his profession, followed ' See Lumley v. Gye, 3 EL & BL 
 by damage, is actionable. WUdee v. 216. 
 McKee, 111 Pa. St. 335. And so is a 
 
102 WEONGS EESPEOTING CIVIL AND POLITICAL EIGHTS. 
 
 liberty of action of others. And so acts done in pursuance of 
 the conspiracy may be unlawful in themselves if they include 
 deception, threats, intimidation, or any species of duress what- 
 ever, whether employed upon the laborer or upon the em- 
 ployers.^ And if employers combine and use unlawful means 
 to prevent the employment of any special class of laborers, 
 they are violating the liberty, common to all, of employing and 
 being employed." 
 
 If a number of employers in the same line of business agree 
 among themselves to suspend or carry on business as the ma- 
 jority shall agree, this is void because in restraint of trade.' 
 So is an agreement between laborers by which they undertake 
 that -they wiU not seek work at a shop where disputes con- 
 nected with the trade haA'^e arisen, and that they wiH not en- 
 courage or assist a laborer contrary to certain rules agreed 
 upon, or seek to procure employment for those not associated 
 with them.* 
 
 Eights to be carried by common carriers. — In the business 
 of common carriers the public have some rights which do not 
 exist in the case of a business of a purely private character^ 
 No man becomes a carrier except with his own consent ; but 
 when he does so, the principles of the common law under 
 which the business has grown up require that he must carry 
 under impartial regulations, and for aU. The scope of his 
 business he must determine for himself, but he must carry 
 certain kinds of property only, or aU kinds of property; or, if 
 he be a carrier of persons, he may perhaps limit the business 
 to the carriage of certain classes of passengers only, the dis- 
 
 1 See Rice v. Mauley, 66 N. T. 83, sage of this statute it has been held 
 
 23 Am. Rep. 30; Webber v. Barry, 66 that a combination of employers to 
 
 Mich. 137; Carew t. Rutherford, 106 resist an advance in wages deter- 
 
 Mass. 1, 8 Am. Rep. 287. And see mined upon by employees is not an 
 
 Longshore Printing & Pub. Co. v. unlawful conspiracy, since its object 
 
 Howell (Oreg.), 38 Pac. Rep. 547; is but to resist an artificial price 
 
 Lake Erie & W. R. Co. v. Bailey, 61 made by a combination which by 
 
 Fed. Rep. 494. statute is lawful Cote v. Murphy, 
 
 ^ See Worthington v. Waring, 157 159 Pa. St. 430, 33 L. R. A. 135. 
 
 Mass. 421, 30 L. R. A. 343. In Penn- , s Hilton v. Eckersley, 6 EL & Bl. 
 
 sylvania there is a statute making 47. And see Queen Ins. Co. v. State, 
 
 it lawful for employees to combine 86 Tex. 350, 22 L. R. A. 483. 
 to raise wages, and to persuade, by < See Hornby v. Close, L. R, 3 Q. B. 
 
 all lawfulimeans, others from work- 153. 
 ing for a less sum. Since the pas- 
 
WKONGS KESPEOTING CIVIL AND POLITICAL EIGHTS. 103 
 
 crimination being based upon distinctions which have some 
 principle to support them. But a certain liberty of action in 
 xeceiving and rejecting persons could always be justiiied on 
 grounds of impartiality and reason. The compulsion of im- 
 partial carriage is for the public benefit ; and the public good 
 •does not reqilire, for example, that a person afflicted with a 
 contagious disease should be carried in an ordinary passenger 
 coach.* It being impossible for the law to anticipate all the 
 cases which may arise, carriers are allowed to make regulations 
 for the control and management of their business which shall 
 not be unreasonable and which shall not conflict with any 
 which may be lawfully prescribed by competent legislative au- 
 thority. 
 
 A regulation setting aside certain carriages for the exclusive 
 use of women and their escorts, violates the right of no one 
 who is excluded and for whom accommodations are elsewhere 
 provided.^ A rule setting aside certain carriages within which 
 alone would persons of color be received and carried has been 
 sustained where the accommodations furnished were equal to 
 those supplied for other passengers,* but has been held invalid 
 where no such impartial accommodations were provided.' 
 
 Even in the absence of legislation forbidding it, probably 
 innkeepers and carriers of persons by land or by water would 
 not be warranted in law in discriminating on the ground solely 
 ■of a difference in race or color or because of any previous con- 
 dition. The common law required impartiality in their ac- 
 oommodations, and personal discriminations must be unlawful 
 unless the presence of the excluded persons would be danger- 
 ous to others, or would be justly offensive to their sense of 
 duty or propriety, or for other reason would interfere with the 
 proper enjoyment by others of the accommodations which the 
 innkeeper or common carrier affords.' 
 
 iSee Markham v. Brown. 8 N. H. 19 L. B. A. 710; Louisville, N. O. & 
 
 «33. T. E. Co. V. State, 3 Inters. Com. Eep. 
 
 ^Chicago, etc. R Co. v. Williams, 615, 66 Miss. 663, 5 L. R. A. 133; 
 
 •55 m. 185, 8 Am. Eep. 641. Anderson v. Louisville & N. R. Co., 
 
 3 West Cheshire, etc. R. Co. v. Miles,' 63 Fed. Eep. 46. 
 
 55 Pa. St. 309, 93 Am. Dec. 744; Chil- « Chicago, etc. E. Co. v. Williams,, 
 
 ■ton V. St. Louis & L M. R. Co., 114 supra. 
 
 Mo. 88, 19 L. E. A. 369. See, also, 5 Chicago, etc. E. Co. v. Williams, 
 
 .Smith V. Chamberlain, 38 S. C.' 539, supra. A colored man while a pas- 
 
104 WEONGS EESPECTING CIVIL AND POLITICAL EIGHTS. 
 
 It is within the competency of a state legislature to estabUsh, 
 as a regulation of trade, that every citizen, regardless of race, 
 color, or previous condition, shall receive equal accommoda- 
 tions at the hands of carriers, innkeepers or proprietors of 
 theaters.*^ Congress can exercise no police povrers within the 
 states ; ^ and, on the other hand, a state regulation of the sort^ 
 assuming to cover the transportation of passengers from state 
 to state, is unconstitutional as invading the power of congress- 
 over commerce between the states.^ 
 
 Bight to control property. — Every man controls his own 
 property as he pleases, subject only to the obligation to per- 
 form, in respect to it, the duties he owes to the state and to 
 his fellows, and the state can regulate his dress or his table 
 only so far as may be needful for the protection of morahty 
 and decency. For.example, laws prohibiting women to appear 
 in public in the customary garb of men are justified as regu- 
 lations to prevent a practice likely to lead to serious abuses and 
 to be resorted to for the worst purposes. 
 
 The right to an education. — It is a part of every person's 
 civil liberty to provide for his own education as he may have 
 the means. The duty of a parent to educate his child is one 
 of imperfect obligation,, and the state usually proArides schools 
 'which all can attend, and, in some cases, makes instruction free 
 to all. But the right to an education at the public expense is not, 
 as against the state, a legal right at all, unless made so by the 
 constitution; and any law assuming the duty of educating citi- 
 zens of a state may be repealed at the pleasure of the law 
 makers. But any provisions for education which are made by 
 the constitution, the people, as a matter of right, may claim 
 the benefit of, unless legislation is necessary to give them ef- 
 fect.* 
 
 A provision made for education which denies it to persons 
 of color deprives them of " the equal protection of the law," 
 and is forbidden by the fourteenth amendment to the federal 
 
 senger on a railway train is entitled N. Y. 418, 1 L. R. A. 293; Ferguson 
 
 to the same protection against as- v. Gies, 82 Mich. 358, 9 L. B. A. 589. 
 
 sault and humUiation as a white ' 2 CSvil Rights Cases, 109 U. S. 3, 
 passenger. Richmond & D. R Co. v. ' Hall v. Decuir, 95 U. S. 485; Coger 
 
 Jefferson, 89 Ga. 554, 17 L. R A. 571. v. N. W. Union Packet Co., 37 Iowa,. 
 
 1 DonneU v. State, 48 Miss. 661, 12 145. 
 Am. Rep. 375; People v. King, 110 *See Cooley, Const Lim. 99-103. 
 
WEONGS INSPECTING CIVIL AND POLITICAL EIGHTS. 105 
 
 constitution ; but no right is violated when colored pupils are 
 merely placed in different schools, provided the schools are 
 equal, and the same measure of privilege and justice is given ta 
 each.' 
 
 The refusal of a teacher to instruct those who lawfully come 
 is a violation of an individual right and is probably actionable. 
 A teacher may also violate the right to instruction by inflict- 
 ing corporal punishment foi; something not within his jurisdic- 
 tion,^ and he is liable for any abuse of the judicial discretion 
 which he must exercise in managing his school. 
 
 School committees or trustees are to be governed, in the 
 exercise of their powers as such, by the general principles of 
 constitutional law. The question of the violation of the prin- 
 ciple of religious liberty has arisen in connection with regula- 
 tions allowing the reading of the Bible in the pubHo schools, 
 and such regulations have been sustained.' It is also com- 
 petent for the governing board of the school to exclude the 
 reading of the sacred book of any religious sect therefrom.* 
 
 Bights in the learned professions. — To practice law or 
 medicine is not a privilege of citizenship, and with regard to 
 either of these professions a state legislature may pass such 
 regulations as may seem to it proper ; * but a state may not inter- 
 fere in the choice of a religious teacher, nor Avith the right of any 
 one to officiate as a religious teacher, so long as the customary 
 police regulations of the state are observed. Such interference 
 would violate the principles of religious liberty. The members 
 of none of the learned professions have any special privileges, 
 the violation of which by individuals would constitute an ac- 
 tionable wrong. If privilege from arrest of an attorney while 
 attending court in the discharge of a professional duty is dis- 
 regarded, he may apply to the court for his discharge. If a 
 
 »Lehew v. Brummell, 103 Mo. 546, 'Donahoe v. Richards, 38 Me. 376; 
 
 11 L. R. A. 838. See BJiox v. Inde- Spiller v. Wobum, 13 Allen, 127. 
 
 pendence Board of Education, 45 * Board of Education v. Minor, 23 
 
 Kan. 153, 11 lu"R. A. 830.' Negro Ohio (N. S.), 311, 13 Am. Rep. 333. 
 
 children cannot he excluded from ^See BradweU v. State, 55 DL 535, 
 
 the benefits of a school fimd set 16 WaU. 130. For the decisions 
 
 apart by the state constitution, touching this point arising in vari- 
 
 Dawson v. Lee, 83 Ky. 49. ous states as to the right of women 
 
 2 See Morrow t. "Wood, 85 WiA 59, to practice law, see Re Leach (Ind.), 
 
 17 Am. Rep. 47L 21 L. R. A. 701, and note. 
 
106 AVEONGS EESPECTING CIVIL AND POLITICAL EIGHTS. 
 
 clergyman were disturbed while conducting a religious service 
 by the unnecessary execution of process against him, the officer 
 might possibly be, in a gross case, subject to suit, either by the 
 clergyman or by the religious organization whose worship was 
 disturbed. 
 
 Religious liberty. — Individual violations of the priaciple of 
 religious liberty generally consist in disturbance of religious 
 meetings, or in some other act which would be wrong, inde- 
 pendent of any question of the liberty of conscience or wor- 
 ship. Voluntary religious organizations are formed at the wiU 
 of the associates undisturbed by the state. Incorporated so- 
 cieties can only be formed at the wUl of the state and under its 
 laws,' but when formed they must be left to manage their own 
 affairs in their own way, and the state can interfere only where 
 "the property rights of their members, or rights acquired by 
 contract, are disregarded. There is a disregard of right when 
 lawful members are expelled or refused participation in the 
 privileges' of the organization in an unusual manner, or for 
 reasons which the rules or usages do not recognize, or when 
 the purpose of the organization is perverted by radical changes 
 without general consent.^ 
 
 Eqnality of right. — Every person is entitled to have his 
 rights tested by the general laws which govern the rest of the 
 political society. The liberty of a pauper cannot be intrftsted 
 to the discretion of an overseer of the poor or other ministerial 
 or administrative officer;' the apprenticing of whites and 
 blacks must be under the same general regulation;* and the 
 supposed insane must have the same right to a judicial hearing 
 with all others.* 
 
 Exceptional burdens. — Public burdens must be impartially 
 distributed, and those which touch the individual unequally 
 and unfairly may be properly resisted. On the subject of taxa- 
 tion and requirement of military service, all that can be re- 
 quired is that the laws be impartial and be fairly administered ; 
 inequality in their operation being unavoidable. 
 
 1 Hale V. Everett, 53 N. H. 9, 16 Am. Rep. 476; Kuns v. Eobertson (IlL), 40 
 Bep. 83. N. E. Rep. 343. 
 
 2 Watson V. Jones, 13 Wall 679; s Portland v. Bangor, 68 Me. 120, 
 Pounder v. Ash (Neb.), 63 N. W. Rep. 20 Am. Rep. 681. 
 
 48; Powers v. Budy (Neb.), 63 N. W. * Matter of Tm-ner, 1 Abb. (U. S.) 84 
 
 5 See ante, ch. VL 
 
WRONGS RESPECTING CIVIL AXD POLITICAL EIGHTS. 107 
 
 The right to be exempt from unequal taxation is, as between 
 states, one of the privileges and immunities of citizens of the 
 several states; it is incompetent, therefore, to assess and tax 
 property of a non-resident higher than that of residents. And 
 it is equally incompetent to discriminate between residents by 
 any act of omission or commission which produces inequality. 
 Where taxation is based upon an assessment of property, the 
 'functions of the assessoi-s are judicial, and therefore they are 
 not generally liable to a private action by one who has been 
 overtaxed in consequence of their unequal assessment ; * if it 
 be made to appear that the assessors have been governed by 
 improper motives in making their valuations, the tax wiU be 
 set aside or reduced to its Just proportions by the proper tri- 
 bunal. The tax-payer may hold the assessors liable only where 
 they have acted without jurisdiction, or, perhaps, where, 
 through neglect of duty, they have deprived a tax-payer of 
 some important privilege.* 
 
 Searches. — IsTational and state constitutions declare in sub- 
 stance that unreasonable searches and seizures shall be unlaw- 
 ful, and that all persons shall be secure iu their persons, houses, 
 papers and effects against them.' An unlawful search and 
 seizure is an aggravated trespass, and it is to protect against 
 this wrong that the law makes it a criminal offense for one 
 person wrongfully to open another's letters, and makes the 
 postmaster Kable in damages who retains or pries into letters. 
 And there is no reason why correspondence by telegraph should 
 not be surrounded by like securities.* 
 
 Warrants. — Search-warrants are allowed to discover stolen 
 or smuggled goods, or implements of gaming, and in some other 
 cases for which the statutes provide, and there is no other law- 
 
 1 Weaver v. Devendorf, 3 Denio, when requested, to submit such book 
 117. and securities to the inspection of 
 
 2 Thames Mfg. Ca v. Lathrop, 7 certain officers. Shuman v. Fort 
 Conn. 550. See Cooley on Taxation, Wayne, 127 Ind. 109, 11 L. R A. BIS. 
 553, 554 * However, persons through whose 
 
 'See State v. Dupaquier, 46 La. hands telegrams may pass may be 
 
 Ann. 557, 26 L. R A. 162. This right compelled to produce them in evi- 
 
 is not violated by the regulation of dence, and to testify concerning 
 
 a pawnbroker's business which com- them in courts and before legisla- 
 
 peis him to take out a license and to tive committees. State v. Litchfield, 
 
 keep a book with a list of all prop- 58 Me. 267. 
 «rty received in the business, and. 
 
108 WRONGS EESPECTING CIVIL AND POLITICAL EIGHTS. 
 
 ful mode for making search upon one's premises. They must 
 be duly issued by a court or officer of competent jurisdiction, 
 and must describe particularly the place to be searched, and 
 the property, if property be sought.^ The officer, in executing 
 a warrant, may not seize other goods or search other buildings 
 than are described therein ; ^ but he is not liable as a trespasser 
 if he seizes property not intended, if i,t answers the description ; * 
 nor is he liable for insufficiency of the warrant if he simply ' 
 obeys its. commands.* 
 
 Inyasions of political rights. — If a citizen be deprived of 
 his right to meet and discuss public affairs, either by the action 
 of private individuals or by that of the public authorities, the 
 nature of his remedy must depend upon the means resorted to 
 for the purpose of defeating the right. 
 
 The chief political right is that of suffrage. "While the nu- 
 merous ways in which this may be invaded are all wrongs to 
 the political society, only a portion of them can support a pri- 
 vate right of action. An individual entitled to suffrage may 
 be deprived of the right in the following ways, where in each 
 case the only redress is by criminal prosecution : 1. Where 
 officers have wrongfully neglected or refused to take the nec- 
 essary preliminary . action to enable an election to be held. 
 2. Where, by forcible or riotous proceedings, the holding of an 
 election has been prevented. 3. Where illegal votes are re- 
 ceived which control the result. 4. Where, by the illegal con- 
 duct of the officers or of other persons, the ballots are destroyed, 
 or in some other manner it becomes impossible to determine 
 the result, whereby the election is defeated. 
 
 The following are cases where the injury might be more 
 direct and personal: 1. Where the elector, by force or threats, 
 is kept away from- the poU. 2. Where the officers, by wrongful 
 decisions concerning his qualilications to vote, deprive bim of 
 
 1 Sandf ord v. Nichols, 13 Mass. 286, cient, though the biailding was in the 
 7 Am. Dec. 151; State v. Robinson, 33 rear of another building and was 
 Me. 564; Ee Horgan's Liquors, 16 B. reached by an alley from the street. 
 I. 542. State v. Minnehan, 83 Me. 310. 
 
 2 Jones V. Fletcher, 41 Me. 254 3 Stone v. Dana, 5 Met 98. 
 Where a warrant described the prem- *Bell v. Clapp, 10 Johns. 263, 6 
 ises as occupied by the defendant Am: Dec. 839; Humes v. Taber, 1 R. L 
 and situated on the east side of the 464 
 
 -street named, this was held suffl- 
 
WEONGS EESPECTING CIVIL AND POLITICAL EIGHTS. 109 
 
 'the right.' 3. "Where officers or others wrongfully invade his 
 right to secrecy. In the first of these cases, if force is em- 
 ployed, there is an aggravated trespass ; if it is not employed, 
 still the right of action exists if the terror excited by the 
 threats were such that a reasonable man Avould be deterred 
 from exercising his right. With regard to the third of these 
 cases, it may be remarked that the purpose of establishing vot- 
 ing by ballot is that the elector may be, in his action, uninflu- 
 enced either by fear of giving offense or by the desire to please ; 
 his right is therefore invaded when his secrecy is uncovered.^ 
 But precisely what facts wUl make out such an invasion must 
 be determined as the cases arise.' 
 
 Exclusion from office. — As there is no natural right to vote,* 
 so there is no such thing as a natural right to hold an office ; 
 but when a qualified person chosen for an office is excluded 
 from it, there is a wrong both to the state and to the individ- 
 ual. One who usurps an office, if he has color of office and 
 actually performs the functions without hindrance, will be up- 
 held in those acts which concern the public and third persons ; ' 
 but when he is dispossessed by quo xoarranto or some analogous 
 statutory process, the party entitled is allowed to recover as 
 damages the money value of the office.' 
 
 Military subordination. — An important exemption is to be 
 free from military control except when it is exercised in strict 
 conformity to law. "Where the civil law is not suspended 
 either by the actual presence of warlike! preparations, or by 
 declaration of martial law, whatever would be a wrong if done 
 by any other citizen would be a wrong if done by a person in 
 
 1 See infra, as to the remedy, ch. * See Frieszleben v. ShallcToss, 9 
 XIV. Houst. 1, 8 L. R. A. 337. 
 
 2 People V. Pease, 27 N. Y. 45; Peo- s Fylpaa v. Brown Co. (S. D.), 62 N. 
 pie V. Cicott, 16 Mich. 283, 97 Am. "W. Eep. 962. And see People v. 
 Dec. 141. And see Jones v. Glide- Hecht (CaL), 38 Pac. Rep. 941; Hale 
 well, 53 Ark. 161, 7 L. E. A. 831. v. Bischofl (Kan.), 36 Pac. Rep. 752. 
 
 8 This secrecy is not confined to * People v. Miller, 24 Mich. 458, 
 
 the time of depositing the ballot, 9 Am. Rep. 131 ; Nichols v. McLean, 
 
 but accompanies the voter through 101 N. Y. 526,54 Am. Rep. 730; Braini 
 
 the whole preparation of the ballot, v. Tombstone (Ariz.), 33 Pac. Rep. 
 
 An election law, whose purpose is 589; Lightly v. Clouston, 1 Taunt, 
 
 to secure purity of the ballot, will 112; Parker v. Lett, Ld. Raym. 658. 
 be liberally construed. Detroit v. 
 Rush, 82 Mich. 532, 10 L. R. A. 171. 
 
110 WRONGS EESPECTING CIVIL AND POLITICAL EIGHTS. 
 
 military service, whether officer or private, and would be pun- 
 ished in the same way.^ 
 
 Seizures of property by military officers for the purposes of 
 government are trespasses.^ The duty of providing for the- 
 necessities of the service falls upon the civil law and provision 
 must be made for payment.' No title would pass to property 
 seized without express authorization of law, unless in a case 
 where the civil authority would be too late in providing th& 
 means required for the occasion.* The right of impressment 
 in emergencies belongs alone to the commander of the army, or 
 of the district or post.* 
 
 The action of a court-martial is as conclusive as the action 
 of any court exercising its legitimate powers, if it has pro- 
 ceeded within its jurisdiction, but not otherwise. A citizen 
 not in the military service or lawfully summoned into it is not 
 amenable to court-martial.* 
 
 The right to bear arms for the common defense is guaran- 
 tied both by state and federal constitutions; but this right, 
 does not include the carrying of such weapons as are especially 
 suited for deadly individual encounters, and the State may 
 therefore properly forbid the carrying of such weapons con- 
 cealed.' 
 
 lEx parte Milligan, 4 Wall 2; « Smith v. Shaw, 13 Johns. 257; 
 
 Luther v. Borden, 7 How. 1. State v. Stevens, 2 McCord, 32. 
 
 2 Mitchell V. Harmony, 13 How. ^Andrews v. State, 3 Heisk. 165,. 
 
 115; TerriU v. Rankin, 2 Bush, 458, 1 Green Or. Eep. 466 and note, 8 Am. 
 
 92 Am. Dec. 500. Rep. 8 and note; CarroU v. State, 28 
 
 »Hogue V. Penn, 3 Bush, 663, 96 Ark. 99, 18 Am. Rep. 538; State v.. 
 
 A.m. Deo. 274 • Workman, 35 W. Va. 367, 14 L. R. A, 
 
 * Sellards v. Zomes, 5 Bush, 90. 600 and note. 
 
 5 Lewis V. McGuire, 3 Bush, 202. 
 
CHAPTEE X. 
 
 INVASION OF RIGHTS IN REAL PROPERTY. 
 
 The term real property is used here to designate the thing- 
 itself ; the land and what pertains to it, and the right for the 
 time being to possess and enjoy it. The ownership of land is 
 complete or partial. It is of a present or future estate, or sev- 
 eral or Joint. In this country most persons own their estate' 
 by absolute or fee-simple title, and the chief characteristic of 
 ownership is the right to complete dominion,' subject, indeed,, 
 to the right in the state to appropriate the property to public- 
 use wherever it shall be found needful, and a right to regulate 
 its enjoyment so as to prevent needless or unreasonable inter- 
 ference with the rights of others.^ It may also be subject to 
 certain easements or servitudes in favor of other parties, some 
 of which are incident to ownership, while others, when they 
 exist, arise from contracts express or implied. 
 
 Licenses. — Permission to cross the line of a man's private- 
 domain is called a license. Lawful license to enter one's prem- 
 ises maybe given, 1, impliedly by the owner; 2, expressly by 
 the owner ; 3, by the law. 
 
 Implied licenses. — Every man engaged in business impliedly 
 invites the public, to enter his premises.' One may visit an- 
 other's place of business from no other motive than curiosity 
 without incurring liability unless he is warned away by pla- 
 card or otherwise. Nevertheless, the invitation is limited by 
 the purpose. Thus, it would be a trespass if one, instead of 
 visiting a dealer's shop for the purpose of the business carried 
 on there, were to assemble his associates there for some polit- 
 ical or other purpose for which the shop had not been thrown 
 open. Every :_ian by implication invites others to come to his 
 
 iSee remarks of Woodward, J., 311. See, also, on this subject, Ham- 
 in Pierson v. Armstrong, 1 Iowa, mond's Blackstone, vol. II, p. 40 et 
 394 seq. 
 
 2 As to dominion of the state, see * Gowen v. Phila. Exch. Co., 5 W.. 
 
 United States v. Repentigny, 5 Wall & S. 141, 40 Am. Dec. 489. 
 
112 INVASION OF EIGHTS IN KEAL PEOPEETT. 
 
 house as they may have proper occasion either of business, of 
 courtesy, for iaf ormation, etc. Custom must determine in this 
 case what the limit is of the implied invitation.' In the case of 
 young children and other persons not fully svA juris, an im- 
 plied license might sometimes arise where it would not in be- 
 half of others.^ And where one has an easement in the lands 
 of another, he is licensed to enter upon such lands whenever it 
 hecomes necessary to repair or protect it.' 
 
 Express licenses. — Where one gives another authority to 
 •enter upon his land to do a certain act or succession of acts, 
 without at the same time granting him any interest in the land 
 itself, this is a license, whether given by parol or in writing. 
 If it is given on condition it is inoperative unless the condition 
 is performed.* It is personal as between the parties and can- 
 not be assigned by the licensee," and is revoked by a sale of 
 the land by the licensor.* If not acted upon within a reason- 
 able time it is presumptively recalled; ' if it is acted upon, the 
 licensee assumes the obligation to observe due care, and to neg- 
 ligently do nothing upon the land that shall be injurious.' The 
 license is not to be extended by construction,* and it is always 
 subject to revocation as to any act contemplated by it but not 
 jet performed.'" This rule as to the right to revoke is subject 
 to exception in those cases where the license is coupled with > 
 an interest; that is, a legal interest conveyed to the licensee in 
 connection with the license, and to the enjoyment of which 
 the license is necessary." For example, if one man sells to an- 
 other cattle then pasturing on his grounds, the right transferred 
 in the cattle supports the implied license to enter upon the 
 grounds to take them away, and makes it irrevocable. A 
 
 1 Kay V. Pa. R. Co., 65 Pa. St. 269; « Drake v. Wells, 11 Allen, 141; Ck)x 
 McKone t. Mich. Cent R. Co., 51 v. Leviston, 63 N. H. 283. 
 
 Mich. 601. ^ Hill v. Lord, 48 Me. 83. 
 
 2 Keffe V. Milwaukee, etc. R Co., 21 » Eaton v. Winnie, 20 Mich. 156, 4 
 Minn. 207. Am. Eep. 377. 
 
 8 Prescott V. Williams, 5 Met. 429. 9 Gilmore v. Wilbur, 12 Pick. 120, 
 
 And see The Eedemptorist v. Wenig 22 Am. Dec. 410. 
 
 aid.), 29 AtL Eep. 667. loPatchelder v. Hibbard, 58 N. R 
 
 * Freeman v. Headley, 33 N. J. L. 269; Cook v. Steams, 11 Mass. 53a 
 
 523; Mumford v. Whitney, 15 Wend. " Giles v. Simonds, 15 Gray, 441, 77 
 
 380, 30 Am. Dec. 60. Am. Dec. 373; Chicago & L Coal R. 
 
 5 Ruggles V. Le Sure, 24 Pick. 187 ; Ca v. Hall, 135 Ind. 91, 23 L. R. A. 231. 
 Carleton v. Redington, 21 N. H. 291. 
 
INTASION OF EIGHTS IN EEAL PEOPEETT. 113 
 
 license cannot be coupled with an interest in lands unless 
 created by deed or by such, other instrument as is sufficient to 
 convey such an interest under the Statute of Frauds. There- 
 fore rights of way, sales of growing trees, permission to carry 
 water over, or pipes under, the land of another^ are mere 
 licenses, and revocable as such, unless created by deed. 
 
 In some cases where a license is revoked it is of very little 
 importance whether the licensee is or is not protected against 
 liability as a trespasser for what has been done under it, be- 
 cause such aliabihty is insignificant as compared with the loss 
 suffered by the license being withdrawn as to the future. In 
 the case of the withdrawal of a license to erect a mill-dam, 
 where the licensee in acting upon it has contemplated its per- 
 manent enjoyment, and has perhaps made large expei;iditures, 
 in reliance upon it, yet he must now not only abandon such 
 enjoyment, but he must also destroy whatever has been erected 
 under the license the continuance of which would require the 
 license for its protection. Nevertheless a licensor may revoke 
 in these cases.^ A right to flow lands is an interest in the lands 
 which, under the Statute of Frauds, cannot pass without deed.' 
 
 The question with the courts has been how to relieve the 
 licensee vdthout acting in the teeth of the Statute of Frauds. 
 In many cases parties rely upon the word and honor of others" 
 where nothing short of a f drmal instrument should be accepted, 
 and frequently their confidence is abused by those upon whom 
 they rely, who take advantage of the statute to shield them- 
 selves against responsibility for frauds and other wrongs. 
 The law in detestation of such conduct seems to have sought 
 «xcuse in circumstances to permit the courts to give relief. And 
 it has been held that if the license has been acted upon and 
 considerable expenditures made, it should not be revoked vdth- 
 cut making compensation to the licensee.' Other cases go 
 farther and hold that where the licensor has stood by and 
 seen the licensee make large expenditures in reliance upon his 
 license, and which will be wholly or in great part lost to him 
 if the license should be recalled, these facts are sufficient to 
 
 iWallis V. HaiTison, 4 M. & W. ^Cook v. Steams, 11 Mass. 533, 538; 
 
 588; Houston v. Lafifee, 46 N. H. 505; Mumford v. Whitney, 15 Wend. 380. 
 
 Johnson V. Skillman, 29 Minn. 95, 43 » Rhodes v. Otis, 33 Ala. 578, 73 
 
 Am. Rep. 192. Am. Dec. 489. 
 8 
 
114 INVASION OF RIGHTS IN EEAL PKOPEETT. 
 
 create an estoppel in pais wbiclx wiU preclude him from revok- 
 ing.! 
 
 The doctrine of estoppel may be properly applied to such 
 cases as the erection of a partition-wall which the parties are 
 to enjoy in common,' or the alteration of the route of a water- 
 course in which both parties are interested.' But these are per- 
 haps not so much agreements which give interests in lands as 
 arrangements for the suitable and convenient apportionment of 
 separate rights which are so connected or related that neither 
 party can properly and fully enjoy his own without some com- 
 mon understanding. If parties shall add to or modify the reg- 
 ulations prescribed by law for their conduct in such cases, it 
 will generally be done without any understanding that inter- 
 ests in lands are being given or required. The acquiescence 
 and consent of the parties to such arrangements are in the 
 nature of a contract, which, when fulfilled by one party at his 
 own cost and charge, must be obligatory upon both.* 
 
 But the doctrine of estoppel cannot safely be applied so as to 
 make a parol license create an easement, or subject lands to a 
 servitude on the ground of e;Kpeilditures made on the faith of 
 it. Estoppel is applied to prevent fraud, under the rule that 
 " if one is silent when he should speak, justice wiU compel him 
 to silence when he would speak." * It precludes the facts from 
 being shown because th&y were not shown in season. But 
 there is difficulty in applying it to cases where the action has 
 been had with full knowledge. 
 
 Some cases support the doctrine that the permission to flow, 
 if it is acted upon, may be enforced in equity on the same 
 ground on which courts of equity enforce parol contracts for 
 the sale of land after there has been partial performance; that 
 is, to prevent fraud." And where there was no court with f uU 
 equity powers, it has been held that the licensee should have 
 the necessary protection when he was proceeded against at law.* 
 
 Assuming the case to stand on the same footing as a parol 
 
 1 See Cumberland V. R. Co. v. Mc- * Pratt v. Lamson, 3 Allen, 275. 
 Lanahan, 59 Pa. St. 33; Bussell v. ^See Buckingham v. Smith, 10 
 Hubbard, 59 HI. 335. Ohio, 288. 
 
 2 Eawson v. BeU, 46 Ga, 19; "Wynn 6 HaU v. Chaffee, 13 Vt 157, note. 
 V. Garland, 19 Ark. 33. 'Rerick v. Kern, sufpra; Lane v, 
 
 aRerick v. Kern, 14 S. & R. 267, MiUer, 37 Ind. 534 
 16 Am. Dec. 497. 
 
INVASION OF EIGHTS EST HEAL PEOPEETT. 115 
 
 contract for the purchase of lands, the permission to flow must 
 not be treated as a personal privilege merely, but must be con- 
 sidered as pertaining to the miU property so as to pass with it 
 on a sale. And the death of the licensor or licensee, or the 
 sale of the servient tenranent, or the decay of the dam, would 
 not revoke it.* And the licensee, after moneys expended, 
 would have all the rights of a purchaser in possession under a 
 parol contract, among which would be the right to defend his 
 right of possession in the courts of law until his right was ter- 
 minated by such steps as would be necessary in the case of the 
 occupation of lands under such parol contracts. 
 
 What has been said on this subject is as applicable to a 
 license for any other purpose as for a license ior flowing lands.* 
 
 License T>y law.— This class of hcenses comprehends those 
 cases in which the law, on public grounds, gives permission to 
 enter a man's premises : as where a fire breaks out in a city. 
 The owner of a lot cannot exclude those who would use his 
 premises as a vantage-ground to stay a conflagration; and 
 where it is necessary to destroy buildings to stop the spread of 
 a fire, the sufferer must seek redress at the hands of the state, . 
 and accept what the state awards.' So where a highway is 
 out of repair or obstructed, a traveler having occasion to make 
 use of it may lawfully pass upon the adjoining premises, care- 
 fully avoiding any unnecessary injuries.* And statutes which 
 permit lands to be taken for public purposes may provide for 
 ■preliminary surveys, and in thus providing they license an 
 entry upon the land for the purpose.' 
 
 A more common instance of a license given by the law is 
 where an officer has process in the service of- which it becomes 
 necessary to enter upon private grounds or into private build- 
 ino^. In general the officer may go wherever a man is -in 
 order to make service of process upon him. But the law recog- 
 nizes every man's house as his castle; that is, that he may close 
 and defend it not only against private persons but against the 
 
 iLacy V. Amett, 33 Pa» St. 169; 157. As to injuries by mobs see 
 
 Thompson V. McElamey, 83 Pa. St. Darlington v. Mayor of New Tork„31 
 
 174; Snowden v. Wilas, 19 Ind. 10, N. Y. 164, 88 Am. Dec. 248, and note. 
 81 Am. Dec. 870. * Bullard v. Harrison, 4 M. & S. 
 
 2 See Kamphouse v. Gaflfner, 73 IlL 887; Morey v. Fitzgerald, 56 Vt. 487. 
 453. 5 Walther v. Warner, 35 Mo. 277. ■ 
 
 s Stone V. New York, 35 Wend. 
 
116 ruTAsioir of eights in eeal peopeett. 
 
 ministers of the law also. Tlie privilege, however, is in the 
 outer walls only. If the outer door is found open the officer 
 may enter it for any lawful purpose ; and, having entered, he 
 may, if need be, break open the inner door to make or com- 
 plete his service. Even the outer door may be forced open for 
 the purpose of an arrest for treason, felony or breach of the 
 peace or to serve a search-warrant, it appearing that the build- 
 ing entered is the one to be searched.' The building must be 
 the man's habitation, though it may be a part of a house only ; 
 as where one building was occupied by many persons who had 
 their separate apartments opening into a common hall.^ 
 
 Another case of a license granted by law is_ that to enter 
 and abate a nuisance.' 
 
 Abuse of license. — A license given by the owner himself, 
 or by the law, may be lost by abusing it.* But it must be borne 
 in mind that if the authority was conferred by the law, an abuse 
 not only terminates it but revokes it ; and it is presutned from 
 the misbehavior, of the licensee that he entered originally with 
 the intent to do the wrong he has actually committed, and he 
 . is held responsible as a trespasser ah initio. Thus, if parties 
 enter a public inn and demand entertainment there, the land- 
 lord is obliged to receive them, and if they abuse the Ucense 
 by riotous conduct they not only become trespassers, but the 
 trespass dates from their entry .^ In such cases the law wholly 
 withdraws the authority, because the authority given is one 
 which the owner cannot resist. But where the party himself • 
 grants the license which he might at his option have withheld, 
 the licensee is not a trespasser in his entry, but is liable on the 
 special case for exceeding his license, or for any misconduct 
 after entry.* 
 
 Boundaries. — Where one's land is bounded on a public high- 
 way it presumptively extends, not to the outer hne, but to the 
 middle of the road, and his supreme dominion embraces the 
 whole, qualified only by the public easement.' He may maintain 
 
 • 1 Seinayne's Case, 5 Co. 91, Telv. 29, « Six Carpenters' Case, 8 Coke, 146, 
 
 S19. L. C. 213; Hawkins v. Com., 14 1 Sm. L. C. 143. 
 
 B. Mon. 895, 61 Am. Dec. 147. sCushing v. Adams, 18 Pick. 110. 
 
 2 Swain y. Milzner, 8 Gray, 182, 69 ' Lade v. Sheperd, 2 Str. 1004; Cole 
 
 Am. Deo. 244 v. Drew, 44 Vt. 49 ; Edmison v. Lowy, 
 
 .3 See ante, pp. -16, 17. 3 S. D. 77, 17 L. R. A. 275, and cases 
 
 *Edleman v. Yeakel, 27 Pa. Si 26; cited. 
 Jewell V. Mahood, 44 N. H. 474 
 
INVASION OF EIGHTS IN EEAL PKOPEETT. 117 
 
 trespass against one whose cattle graze upon the herbage in the 
 highway unless the cattle are permitted by law to roam at large.^ 
 If the highway officers seU trees standing on the road, and 
 they are cut without necessity, they are liable in trespass.^ So 
 it is a trespass on the adjoining owner for a person to deposit 
 in the highway anything not in any manner connected with 
 the enjoyment of the easement, or to extend a structure on 
 other lands out over it.' 
 
 In appropriating lands for a public way it is competent to 
 provide for taking, not an easement merely, but the fee-simple 
 title. It is held in some states that under such an appropria- 
 tion the complete owneiphip and dominion passes to the mu- 
 nicipal corporation by which the appropriation is made ; and it 
 has been held that the corporation may recover from the ad- 
 joining proprietor the value of minerals taken by him from 
 beneath the surface.* In Michigan, however^ it is held that 
 the appropriation of the fee is only for the purposes of the 
 easement, and for the other public purposes for which, it is 
 customary and proper to make use of land thus appropriated.^ 
 
 Prvma facie the land bounded on a stream of water as 
 bounded by the center of the stream.^ Whete this viev pre- 
 vails, the rights of the public are rights of navigation and of 
 improvement for the purposes of navigation; and where thp 
 state interposes no obstacle, the owner may use the land covered 
 by the water, or the water itself, for his own profit. And it 
 has been held that the right to gather ice therefrom is exclu- 
 sive, and that the owner may maintaiii an action against one 
 who, by moving a raft in front of his grounds, prevented his 
 gathering an ice crop.' He may also carry out the shore by 
 embankment or otherwise; provided he does nothing to termi- 
 nate or threaten the corresponding rights of other riparian pro- 
 prietors;* and that he does not abridge or obstruct the public 
 
 1 Stackpole v. Healy, 16 Mass. 33, 8 Ii. E. A. 207, and cases cited in note; 
 Am, Dec. 131. Ross v. Faust, 54 Ind. 471, 33 Am. Rep. 
 
 2 Clark V. Dasso, 34 Mich. 86. 655; Norcross v. Griffiths, 65 Wis. 
 'Codman v. Evans, 5 AUen, 308. 599; Adams v. Pease, 3 Conn. 481; 
 <Des Moines v. Hall, 34 Iowa, 234 Houck v. Yates, 83 lU. 179; Lorman 
 
 ■ scumming V. Prang, 34 Mich. 514 v. Benson, 8 Mich. 18; Ryan v. 
 
 And see Bissell v. Collins, 38 Mich. Brown, 18 Mich. 196. 
 
 377, 15 Am. Kep. 317; Robert v. Sad- ^ Lorman v. Benson, supra. 
 
 ler, 104 N. T. 339, 58 Am. Rep. 498. 'See Biokett v. Morris, L. R. 1 H. 
 
 6 Chandos v. Mack, 77 Wis. 573, 10 L. Cas. (So. Ap.) 47, 61. 
 
118 XSVASIOS OF EIGHTS IN EEAL PEOPEETT. 
 
 easement, and is governed always by state police regulations. 
 In many states it is held that on streams which are navigable 
 in fact, though not subject to tide-water flow, the line of pri- 
 vate ownership is the bank, and not the thread of the river.^ 
 On small streams, which are highways only for rafting pur- 
 poses, the title of the bank owner extends to the thread of the 
 stream, but the public may use them for rafting, taking care 
 not needlessly, by checking the water or otherwise, to injury 
 adjacent lands.^ These rules are rules of presumption merely,' 
 and in any grant of lands the words of conveyance may be 
 such as to bound the lands on the exterior lines of highways or 
 on the bank of a stream, or on any other line sufficiently des- 
 ignated.* 
 
 It was formerly thought that where land was bounded on a 
 fresh-water lake or pond, the boundary line was low-water 
 mark;' but the recent cases reject this rule and hold the 
 boundary line to be the center of the lake.* On waters where 
 the tide ebbs and flows, the line of high water is the limit of 
 exclusive ownership.'' In the Atlantic states, however, the mat- 
 ter is governed largely by legislation or by customary law." 
 
 Possessiou of lands. — Land, the ownership of which has 
 passed ivom. the sovereignty, is, in contemplation of law, al- 
 ways in the possession of some one. If possession is rightful 
 it may be by one who has only a temporary interest, as a ten- 
 ant for yea.rs, or it may be by one having a freehold estate. 
 One having actual possession does not lose it by temporary ab- 
 sence for pleasure or business, but the possession will be kept 
 for him by servants, if any remain, or by his domestic animals 
 or his goods. If one occupies part of a known description of 
 
 1 Tomlin v. Dubuque, etc. Railway A. 361; Lembeck v. Nye, 47 Ohio St 
 Co., 32 la. 106; Eavenswood v. Flem- 336, 8 L. E. A. 578. 
 
 ings, 22 "W. Va. 52; Shoemaker v. ' Waterman v. Johnson, 13 Pick. 
 
 . Hatch. 13 Nev. 261 ; Minto v. Delaney, 361. 
 
 7 Oreg. 337; Lamprey v. State, 52 "This rule does not apply to the 
 
 Minn. 181, 18 L. E. A, 670; Cooley v. large lakes or inland seas. See 
 
 Golden, 117 Mo. 33, 21 L. E. A. 300, Hardin v. Jordan, 140 IT. S. 371, and 
 
 and cases cited. cases cited by Mr. Justice Bradley; 
 
 2 Grand Eapids Booming Co. v. Gouverneur v. Nat Ice Co., 134 N. Y. 
 Jarvis, 30 Mich. 308. 355, 18 L. R A. 695; Stevens v. King, 
 
 »Mott V. Mott, 68 N. T. 346. 76 Me. 197. 
 
 « Alden v. Murdock, 13 Mass. 356; 'Martin v. WaddeU, 16 Pet 367. 
 Allen V. Weber, 80 Wis. 531, 14 L. E. 8 Gough v. BeU, 23 N. J. 441. 
 
INTASION OF EIGHTS IN EEAl PEOPEETT. 119 
 
 land, but has color of title to the whole and claims the whole, 
 he has constructively possessiou of the whole, provided no one 
 «lse is occupying any portion thereof.* If there is no pedis 
 jaossessio of any part of the land, the real owner has construct- 
 ive possession and may sue an intruder for the disturbance of 
 his possession, and wiU recover if he makes out the title.^ At 
 the common law, if possession was taken from the owner, he 
 might retake it by force; but as this often led to a breach of 
 the public peace, it was provided by statute that entry on lands 
 and tenements could be made only where entry was given by 
 law, and then only in a " peaceable and easy manner:" ' This 
 statute has been re-ena(jted in the several American states or 
 recognized as a part of the American common law. If, not- 
 withstanding, one should forcibly seize possession of lands, or 
 if, after having in any manner unlawfully obtained possession, 
 he should forcibly detain the same against the owner, summary 
 statutory remedies are given by means of which the party 
 forcibly expelled or wrongfully excluded by force may regain 
 possession. Title is no defense to a complaint for a forcible 
 entry.* 
 
 The law will not suffer a forcible entry upon a peaceable 
 possession, even though it be in the assertion of a valid title, 
 against a mere intruder, for the reasons that whoever assumes 
 to make such an entry makes himself judge in his own cause 
 and enforces his own judgment by the employment of force 
 against the peaceable party ; and, as the other party must have 
 an equal right to judge in his own cause and to employ force, 
 any wrong, if redressed at all, would be redressed at the cost 
 of a public disturbance, and perhaps of serious bodily injury 
 to the parties. And when forcible possession is taken of land, 
 the law wiR not inquire into the title until restoration is made. 
 But if one lawfully entitled to possession can make peaceable 
 «ntry, even while another is in occupation, the entry in con- 
 templation of law restores to him complete possession,' and he 
 
 1 Parker v. Wallis, 60 Md. 15, 45 MosseUer v. Deaver, 106 N. C. 494, 8 
 Am. Eep. 703. L. R. A. 537, and cases cited in note. 
 
 2 Miller v. MiUer, 41 Md. 633; Gun- » Esty v. Baker, 50 Me. 835. And 
 solus V. Lormer, 54 Wis. 630. see Smith v. Beeder, 31 Ore. 541, 15 
 
 » 5 Rich, n, c. 7. L. R. A 173. 
 
 •* Rawson v. Putnam, 138 Mass. 553; 
 
120 INVASION OF EIGHTS IN EEAL PEOPEETT. 
 
 may resort to sucli means, without force, as will render further 
 occupation by the other impracticable.' 
 
 One, if he acts promptly, may expel by force an intruder 
 upon his lands. If he, his family or his servants are upon the 
 land at the time, the necessary force may then be employed. 
 But if the intruder steals in unawares, the rightful possessor 
 may at once proceed to remove him. But he may, instead, 
 maintain trespass, provided he does not, by sleeping on his 
 rights, acquiesce in his dispossession.^ 
 
 It seems, then, that possession is either rightful or wrongfuL 
 Presumptively a peaceful possession is always rightful, and the 
 proof of it is sufficient evidence of title to enable one to re- 
 cover in ejectment against one who is subsequently found in 
 possession, and who shows no right in himself.' 
 
 An injury to real estate during the continuance of ti tenancy 
 may support two actions : one by the tenant, who, in any event, 
 must suffer some legal injury, and one by the reversioner, 
 where the injury is of a nature to affect the reversion. A 
 trespass is an injury to the tenant, but his recovery is limited 
 to the injury suffered by himself.* The destruction of build- 
 ings is an injury to both. An act to the injury of the rever- 
 sion is an act of waste, and when committed by the tenant 
 himself or by any third person will support an action on the 
 case by the reversioner.* 
 
 The entry of the landlord on the rightful possession of the 
 tenant is a trespass.* But if the tenant hold over after the ex- 
 piration of his term, the landlord may make a peaceable entry,' 
 and though it has been held in some cases that he may not em- 
 ploy force to expel the tenant,' he may, nevertheless, treat as 
 trespassers all other persons who may then b^ there without 
 authority or who may afterwards make entry,' 
 
 1 Steams v. Sampson, 59 Me. 568, 8 Crowell v. New Orleans, etc. Co., 61 
 Am. Rep. 443. Miss. 631. 
 
 2 Browne v. Dawson, 13 Ad. & EL i Taylor v. Cole, 3 T. R. 293; Tann- 
 634. ton V. Costar, 7 T. R. 431. 
 
 8Sherinv. Brackett, 36 Minn. 153; « Hillary v. Gay, 6 C. & P. 284; 
 
 Bagley v. Kennedy, 85 Ga. 703, and Dustin v. Cowdry, 23 Vt 631. Prob- 
 
 cases cited in note to Hancock v. ably the weight of authority is the 
 
 McAvoy, 18 L. R. A. 781. other way. Allen v. Keily, 17 R L 
 
 4 Gilbert v. Kennedy, 23 Mich. 5. 731, 16 L. R. A. 798, and cases cite* 
 
 s Lane v. Thompson, 43 N. H. 320. in note. 
 
 6 Bryant v. Sparrow, 62 Me. 546; sjayne v. Price, 5 Taunt 326^ 
 
INVASION OF EIGHTS ESr KEAL PBOPEETT. 121 
 
 Tenants in common. — The possession by one tenant in com- 
 mon is in law the possession of both. Therefore, if one makes- 
 entry, he is presumed to do so in the right of both and to hold 
 in their right afterward.^ But one tenant may disseize the 
 other by a forcible expulsion or exclusion, or by the exclusive 
 receipt of the rents and profits accompanied by a denial of all 
 rights in his co-tenant.^ The ouster must be by .some decisive, 
 unequivocal act or conduct.' Where there is an actual ouster 
 the disseizee may maintain ejectment, but his right may be- 
 barred by continuous adverse possession of his co-tenant for 
 the period prescribed by the statute of limitations.* After the 
 ousted tenant recovers he may then maintain trespass for the • 
 mesne profits.* For a distinct injury by one co-tenant during^ 
 the joint possession, the other may have the appropriate remedy 
 against him,* but he is responsible for a clear abuse only, in the 
 use of the premises. 
 
 Injuries to the possession of tenants in common are injuries 
 to all, and all should join in suits for trespass, nuisances, etc. 
 
 Trespasses in hunting. — The general acquiescence of own- 
 ers of lands in the pursuit of game upon- them is to be regarded 
 merely as a waiver of a right to complain of a trespass; and 
 whenever one goes upon, the land of another with dogs, and 
 the dogs worry the domestic animals of the land-owner, or , do- 
 him other damage, the trespasser is responsible without evidence 
 of his knowledge of vicious propensities in his dogs, for it is- 
 his own trespass, and the mischief done by the dogs is only 
 matter of aggravation.' 
 
 Trespasses in Ashing. — The right to take fish in fresh-water 
 streams belongs to the owners of the soil under them to the 
 exclusion of the pubhc.* But to prevent undue encroachments- 
 
 Damtryv.BrooklehTirst,3Exch. 207; «.Odiome v, Lyford, 9 N. H. 502j 
 
 Hey V. Moorhouse,-6 Bing. N. C. 53. Waller v. Bowling, 108 N. C. 289, 12 
 
 1 Roberts v. Morgan, 30 Vt. 319; L. E. A. 261. 
 
 Dubois V. Campau, 28 Mich. 304 ' Beckwith v. Shordyke, 4 Burr,- 
 
 2Brackett v. Norcross, 1 Me. 89; 2092; Van Leuven v. Lyke, 1 N. Y^ 
 
 Long Y. McDow, 87 Mo. 197. 515, 49 Am. Dec. 346, and cases cited 
 
 3 Morrill v. Morrill, 20 Oreg. 96, 11 in note. 
 
 L. E. A. 155. 8 Browne v. Kennedy, 5 H. & J, 
 
 « Dubois V. Campau, 28 Mich. 804; 195; Cobb v. Davenport, 82 N. J. 369. 
 
 Hampton v. Wheeler, 99 N. C. 222. And see Turner v. Hebron, 61 Oonn,- 
 
 sGoodtitle v. Tombs, 3 Wils. 118; 175, 14 L. R. A. 886. 
 Critchfleld v. Humbert, 39 Pa. St. 
 427, 80 Am. Dec. 533. 
 
^22 INVASION OF EIGHTS lU EEAL PEOPEETT. 
 
 "bj one riparian proprietor upon the rights of others, the state 
 largely regulates the right by forbidding the taking of fish other- 
 wise than singly in certain waters, by prohibiting their being 
 taken at aU at certain seasons, and by requiring a free passage • 
 ^;o be kept open for the passage of fish in all streams in which 
 Tights of fishery are important.* In some states the power of 
 regulation is "conferred, either generally or in particular in- 
 stances, upon the county or township authorities; and inMassa- 
 43husetts and Maine, towns have been allowed to exercise this 
 power for the common benefit of the people of the towns in 
 their aggregate capacity, and to seE or leas6 rights of fishery 
 -in the waters where, at common law, the rights of the owners of 
 the banks would have been exclusive.* Such regulations must re- 
 spect all other rights of the ripariaji owner. If he has a miU- 
 •dam, for instance, he cannot be compelled to remove it without 
 -compensation.' 
 
 The rule regarding fresh-water streams applies also to smaU 
 lakes or ponds,* but probably does not apply to the larger 
 lakes. Whether a body of water comes within the rule must 
 be determined by the court as the case arises.* 
 
 In tide- waters the right to take figh belongs to the public 
 jSiTid. presumptively is common to all.* In Massachusetts the 
 iowns have been allowed to appropriate the right to take fish 
 within their limits ; ' and private grants may be made by the 
 state itself to individuals, who also may obtain exclusive rights 
 by prescription.* But the right of fishery in tide-watera is 
 always subordinate to the public right of regulation and im- 
 provement for the benefit of navigation. In all waters navi- 
 gable in, fact, the right of navigation, is the paramount right.' 
 Those engaged in navigation, however, will be liable for any 
 negligent injuries which their vessels may cause to seines, 
 
 iSee Lawton v. Steele, 119 N. Y. *Cobb v. Davenport, 32 N. J. 369, 
 
 •S26, 7 L. E. A. 184, and note; Com. v. 33 N. J. 223. 
 
 Manchester, 152 Mass. 330, 9 L. E. A. ^See State v. Franklin Falls Co., 
 
 •2B6; State v. Lewis, 134 In A 250, 20 49 N. H. 240, 6 Am. Eep. 513. 
 
 I^E.A. 52. 6 Crosby v. Wadsworth, 6 East, 
 
 ^Nickerson v. Brackett, 10 Mass. 603. 
 
 ■212; Cottrill v. Myrick, 13 Me. 223. 'Coolidge v. WiUiams, 4 Mass. 140. 
 
 3 State V. Glen, 7 Jones L. (N. C.) s Gould v. James, 6 Cow. 369; Paul 
 
 -S31 ; Woolever v. Stewart, 36 Ohio St. v. Hazleton, 37 N. J. 106. 
 
 146. 9 Moulton v, libbey, 37 Me. 472. 
 
HrVASION QF EIGHTS IN KEAL PEOPEBTY. 123 
 
 oyster beds, eto.^ When fish are taken in private waters, where 
 the public have been accustomed to take them, and where the 
 owner himself does not make use of the fishery for purposes 
 of profit, and is cognizant of the act of others within it, this 
 cannot be a trespass until in some manner the objection of the 
 owner is manifested.* 
 
 Trespass by means of inanimate objects. — It is a trespass 
 to cast inanimate objects on the land of another, or to throw 
 water upon it, or to cut trees so that they fall upon it, and this 
 whether the result was intended or not. Thus it is an action- 
 able trespass if, where one is blasting rock, fragments are 
 thrown upon the lands of another ; and it is no defense that 
 the party was guilty of no negligence.' But if a deposit of 
 stones or other material on one man's land is carried by a vio- 
 lent storm upon the land of another, this is merely an acci- 
 dent.< 
 
 Waste. — While trespass is an injury to the possession itself, 
 waste is committed or suffered by the person actually or con- 
 structively in possession of the land, and may be defined as 
 being an injury done or suffered by the owner of the present 
 estate which tends to destroy or lessen the value of the in- 
 heritance.* Waste is volimtary, when it consists of some posi- 
 tive wrongful act which injures the inheritance; or permissive, 
 when it consists in the neglect of some duty from which a 
 like injury follows. There is no absolute rule as to what shall 
 constitute waste under aU circumstances, for things that are 
 injurious at some times and in some places, may be beneficial in 
 others. Thus,- in England, and in some parts of this country, 
 a tenant would be liable for waste if he cut from the estate 
 more timber than is reasonably necessary for fuel and for the 
 repair of buildings, fences and agricultural implements. But 
 in the newer states, where timber is abundant, it' might be 
 beneficial to the inheritance, rather than wasteful, to permit 
 the timber to be removed. 
 
 For tenants to do upon leasehold premises that for which 
 
 ,iMarshaU v. Steam Nav. Co., 3 B. < Snook v. Bradford, 14 U. C. Q. B. 
 
 & S. 732. 355. 
 
 2 See Marsh v. Colby, 39 Mich. s xhis is the true test for determin- 
 636. ing what is waste. Sherrill r. Con- 
 
 3 Haye v. Cohoes Co., 3 N. Y. 159. nor, 107 N. C. 543. 
 
124 INTASION OF EIGHTS nST EEAL- PEOEEETT. 
 
 the premises are leased cannot be waste, provided it is done in 
 the proper manner. But, except where they are leased for a 
 special purpose, and always when the estate comes into exist- 
 ence by operation of law, as in case of dower, the question of 
 waste must be gorerned largely by previous use,' especially as 
 regards buildings: For example, it would be waste to turn a 
 dwelling into a shed or stable, or to make over a shed or a 
 stable into a dweUing.* Slight changes may lawiully be made, 
 provided they do not injure the inheritance, but preserve the 
 estate substantially the same.' With regard to the land itself, 
 it would be waste to excavate farming lands in search of min- 
 erals,* or to seU gravel or clay ; ®. though if such had been the 
 previous use of the premises it would be different.* 
 
 To sell manure made on the premises, to be removed from 
 it, is waste in case of agricultural lands, because it is implied 
 in leasing such lands that the manure made is to be used 
 thereon.' 
 
 Permissive waste. — Unless a tenant has covenanted to make 
 repairs, he can be held to exercise only reasonable diligence . 
 for the preservation of the buildings. He is not liable for ac- 
 cidental fires occurring without his fault, unless. upon cove- 
 nants. He is bound to protect the remainder of the estate 
 against negligent waste and decay, and this extends to protec- 
 tion against the acts of trespassers.* 
 
 For waste actually committed, an action on the case for the 
 recovery of damages is the common remedy ; but the interest 
 of the reversioner may be as effectually protected by injunc^ 
 tion when the waste is merely begun or threatened. One who 
 has only a lien upon the premises is also entitled to an injunc- 
 tion, but it is not so clear what remedy he would have by ac- 
 tion. In New York, where the mortgagee has a mere lien on 
 
 k 
 
 1 See King v. Miller, 99 N. C. 583, « University v. Tucker, 31 W. Va. 
 
 and cases cited. 621. 
 
 2Huntleyv. Russell, 13 0. S. 573. sSee Lindley v. Smith, 6 Munf. 
 
 3 See Winship v. Pitts, 3 Paige, 134. 
 359. 7 Hill V. De Rochemont, 48 N. H. 
 
 * Unlawful removal of petroleum 87; Daniels v. Pond, 21 Pick. 367., 
 is waste. Williamson v. Jones, 89 8 Attersall v. Stevens, 1 Taunt 183; 
 
 W. Va. 331, 35 L. R. A. 333; and see Cook v. Champlaih, etc. Co., 1 Denio, 
 
 Childs V. K C, St. J. & C. R R. Co., 91. 
 117 Mo. 414. 
 
INVASION OF EIGHTS IN EEAL PEOPEETT. 125 
 
 the land, if the mortgagor, or one in privity with him, com- 
 mits voluntary waste upon the premises, and the premises in 
 consequence prove insufficient for the satisfaction of the mort- 
 gage debt, he may recover the damage done him by the waste 
 of the party committing it, providing the mortgagor is insolv- 
 ent or not personally liable for the debt.^ In Massachusetts, 
 where the mortgage vests the legal estate in the mortgagee, 
 and he, after condition broken, may maintain trespass against 
 the mortgagor for acts of waste, though the latter stiU re- 
 tains possession, the court goes further and holds that damage is 
 not to be measured by proof of insufficiency of the remaining 
 security.^ But probably in any of the states if there has been 
 an actual sale in foreoldsure of the mortgage, with right of re- 
 demption afterward, the purchaser, when his estate is perf ectedj 
 may recover for any waste committed intermediate the sale 
 and the period when the right to redeem expired ; for his right, 
 when perfected, relates back to the time of the sale.' And a 
 purchaser at an execution sale would have alike right.* 
 
 »Shepard v. Ldttle, 14 Johns. 310. * Stout v. Keyes, 3 Doug. (Mich,) 
 2ByTom V. Chapin, 113 Mass. 308. 184 . 
 s Phcenix v. Clark, 6 N. J. Eq. 447. 
 
CHAPTER XI. 
 
 INJURIES BY ANIMALS. 
 
 By the common law it was made the duty of every man to 
 keep his cattle within the limits of his own possessions, and 
 when they strayed upon the land of another the owner was 
 liable for the mischief done by them, without regard to the de- 
 gree of care which he exercised in keeping them withia his own 
 bounds. Further, the owner of lands was imder no obligation 
 to inclose them as a protection against the beasts of others. 
 This rule is a part of the common law in most of the states, ex- 
 cept as legislation has modified or aboUshed it.' In some of 
 the newer states, however, it is said that the rule was never 
 adopted, because unsuited to their condition and circumstances.* 
 In other states the common-law rule is held to be not in force 
 because inconsistent with -their legislation; and in these states 
 the owner of land must protect his lands against injuries by 
 domestic animals as he may think is for his interest. 
 
 In some of the states' it is provided that, unless the owner 
 shall cause his lands to be fenced with such a fence as is par- 
 ticularly described, he shall maintain no action for the tres- 
 passes of beasts upon them.' Such statutes generally apply to 
 exterior fences only. More commonly it is required that the 
 owners of adjoining premises shall keep up respectively one-half 
 the partition fence between them, this being apportioned for 
 the purpose by agreement, by prescription, or by the order of 
 fence viewers. Should one neglect his duty prescribed by 
 
 1 Bileu V. Paisley, 18 Oreg. 47, 4 L. Kerwhaoker v. Cleveland, C. & C. R. ' 
 E. A 840; Barber v. Mensoh, 157 Pa. Co., 3 Ohio St. 173, 63 Am. Dec. 246; 
 St. 390; Bulpit v. Matthews, 145 lU. Savannah, F. & W. K. Co. v. Geiger, 
 345, 23 L. E. A. 65; Lord v. Worm- 21 Fla. 669, 58 Am. Rep. 697. 
 
 wood, 39 Me. 283, 50 Am. Dec. 586. ^gge Jonesv.Witherspoon,7 Jones 
 
 See Tonawanda E. Co. v. Mimger, 5 L. 555, 78 Ann , Dec. 263; Moore v. 
 
 Den. 255, 49 Am. Dec. 239, ^nd note, White, 45 Mo. 206; Wilhite v. Speak- 
 
 citing cases. man, 79 Ala. 400; Comerfordv. Du- 
 
 2 Delaney v. Errickson, 10 Neb. 492 ; puy, 17 Cal. 308. 
 Chase v. Chase, ISNev. 369. And see 
 
INJITKIES BY ANIMALS. 12T 
 
 these statutes, he must not only suifer in silence the injuries tcp 
 himself in consequence thereof,' but he will also be responsible- 
 for injuries received on his land by the domestic animals of his. 
 neighbor if they wander there invited by his own neglect.^ 
 
 The owner of beasts which unlawfully enter upon the prem- 
 ises of another and there commit mischief because of some^ 
 vicious propensity is liable for the injury, even though the par- 
 ticular injury might not of itself support an action.' 
 
 Any one who by agreement with the owner has for the time 
 being the care and custody of animals, which he suifers to es- 
 cape and do mischief, is the party responsible for their tres- 
 passes. It is not the ownership, but the possession and the duty 
 to care for the animal, on which the liability is based.* 
 
 An exception to the common-law rule, that every man at his- 
 perU. must keep his beasts from the lands of others, exists. 
 where one is driving his domestic animals along the highway. 
 In such a case he is bound to observe only due care, and if^ 
 without negligence on his part, they escape from him and go- 
 upon private grounds, he is not responsible provided he re- 
 moves them within a reasonable time. What is a reasonable^ 
 time must depend upon all the circumstances.' 
 
 Injuries Iby vicious animals'. — The difference in the nature 
 of animals makes it necessary to take precautions in one case= 
 which are not required in another. Ordinarily a dog will com.- 
 mit no noticeable injury by merely crossing the premises of a- 
 neighbor; therefore the common law has never given an action 
 of trespass for the unlicensed entry of dogs upon the premises- 
 of other persons than their owners.* But every owner of cat- 
 tle, horses, sheep, swine and other domestic animals, which. 
 would naturally commit destruction in private inclosures, is re- 
 
 1 Phelps V. Cousins, 29 Ohio St. 135; <Waxd v. Brown, 64 IlL 307, 16 
 Eddy V. Kinney, 60 Vt. 554. As to Am. Rep. 561 ; Kennett v. Durgin, 59 
 the sufficiency of fences, see Claren- N. H. 560. But in some states either 
 don Land, etc. Co. v. McClelland the owner or the agister may be pro- 
 Bros., 86 Tex; 179, 22 L. R A. 105, and ceeded against. Sheridan v. Bear, 
 cases cited in mofe. 8 Met 284, 41 Am. Dec. 507; Wey- 
 
 2 Gate V. Cate, 50 N. H. 144, 9 Am. mouth v. Gile, 72 Me. 446. 
 
 Eep. 179. And see "Wilder v. Stanley, ^ Goodwyn v. Cheveley, 4 H. & N. 
 
 65 Vt. 145, 20 L. E. A. 479. 631. And see Fallon v. O'Brien, 13: 
 
 »Lyke v. Van Leuven, 4 Den. 127, R. I. 518, 34 Am. Rep. 713. 
 
 1 N. Y. 515. And see Ellis v. Loftus « Brown v. Giles, 1 C. & P. 118. 
 Iron Co., L. R. 10 C. P. 10. 
 
128 INJUKIBS BT ANJMAIS. 
 
 .quired by common law to keep them at his peril oflf the lands 
 of other persons ; he must take notice of the natural propensity 
 <of cattle to stray and trample down crops, as one who keeps a 
 beast of prey must take notice that he wiU kiU and destroy 
 ^animals and human beings if he is suffered to escape.' 
 
 Other mischiefs may be conimitted by domestic animals which 
 are not the result of the general propensity, but are committed, 
 if at all, by exceptionally vicious individuals of the particular 
 species of animals. The keeper of a domestic animal is not in 
 general responsible for any mischief that may be done by such 
 animal which was of a kind not to be expected from him and 
 which it would not be negligence in the keeper to fail to guard 
 again§t. But if it be made to appear that any domestic ani- 
 tnal -is vicious and accustomed to do hurt and that the owner 
 baa been notified of the fact, the duty is then imposed upon 
 him to keep the animal secure, and he is responsible for the 
 mischief done by the animal in consequence of the failure to ob- 
 iServe this duty. For example, one who has been notified that 
 his dog has been accustomed to worry sheep or other animals, 
 .or to attack persons, if he stiU keeps him,'* takes upon himself 
 iiU risks, and becomes from the time of such notice responsible 
 for aU injuries of the sort he may thereafter commit.' So if 
 one drive a bull along the public highway, knowing of his pro- 
 pensity to attack and gore any person wearing a red garment, 
 and taking no precautions, he will be held responsible if such 
 an attack is made.* 
 
 The notice must be sufficient to put a reasonable and prudent 
 man on his guard, and to require him to anticipate the injury 
 which has actually occurred. Notice that a horse is unruly is 
 
 1 Van Leuven v. Lyke, 1 N. T. 515. party, who knew of the clanger, took 
 
 2 Knowledge of a dog's vicious pro- no pains to avoid it. Jones v. Carey 
 pensities may be inferred from the (DeL), 31 AtL Eep. 976. A dog owned 
 fact that he was kept constantly by the defendant's agent, and which 
 confined. Werner v. Chamberlain is kept with defendant's own dogs, 
 <(Pel), 30 AtL Eep. 638. comes within the rule. Harris v. 
 
 3 Smith v. Pelah, Stra. 1264; Fisher (N. C), 20 S. E. Rep. 460; 
 Knowles v. Mulder, 74 Mich. 203, 16 Jacobs-Meyer v. PoggemoeUer, 47 
 Am. St. Bep. 627. One who keeps a Mo. App. 560. 
 
 dog that is in the habit of attacking * Hudson v. Eoberts, 6 Exch. 697. 
 
 passing teams, and knows of the And see Glidden v. Moore, 14 Neb. 
 
 habit, is liable for injuries resulting 84. 
 from an attack, though the injiired 
 
INJURIES BY ANIMALS. 129 
 
 HO notice that lie is likely to kick and bite; ' but notice that a 
 bull attacks and gores other domestic animals is suflficient warn- 
 ing that he would attack persons in like manner." It is the 
 propensity to commit mischief that constitutes the danger, and 
 «o the notice need not be of mischief actually committed.' The 
 •owner of animals which are likely to commit the particular 
 mischief at that season of the year must anticipate and guard 
 against it without special notice or warning.* 
 
 The owner of cattle which are accustomed to overleap or 
 throw down fences which are suificient for cattle in general, is 
 liable for injuries committed by his cattle in that way, even in 
 the case of those whose duty it was to maintain the fence over- 
 leaped or thrown down.' 
 
 The duty to protect against vicious animals is imposed upon 
 the keeper, irrespective of ownership.^ The law will not suffer 
 a man to defend his premisies against mere trespasses by fero- 
 'cious animals whose assault might be dangerous to life or hmb ; ' 
 but a man may defend his house against burglars by the use of 
 a, ferocious dog, and even against casual trespasses if the dog 
 is not likely to do serious injury.' 
 
 The doctrine of contributory negligence applies to the case 
 of injury by animals ; a man cannot recover for an injury re- 
 ceived from a dangerous animal on the premises of another onto 
 which he has gone heedlessly, knowing that such an animal 
 was there.' But a party responsible for keeping vicious ani-^ 
 mals is liable for an injury inflicted by them on a child, though 
 the child's action was committed imprudently."" 
 
 .iSee Spray v. Ammerman, 66 IlL ^Hine v. Wooding, 37 Conn. 123. 
 
 509. 6 Marsh v. Jones, 31 Vt. 378, 53 Am. 
 
 2 Earhart v. Toungblood, 37 Pa. St. Dec. 67 ; Twigg v. Ryland, 63 Md. 380, 
 
 331. 50 Am. Rep. 226. 
 
 » Eobinson v. Marino, 3 "Wash. 434; ' Loomis v. Teirry, 17 Wend. 496, 31 
 
 McCaskiU v. Elliott, 5 Strob. L. 196, Am. Dec. 306. 
 
 53 Am. Dea 706; Wood v. Vanghan, » See Sarch t. Blackburn, 4 C. & P. 
 
 28N.B.472. Knowledge of a servant 397. 
 
 is equivalent to knowledge of the ' See Williams v. Moray, 74 Ind. 
 
 master. Brice v. Bauer, 108 N. Y. 25, 39 Am. Rep. 76; Marble v. Ross, 
 
 438, 3 Am. St. Rep. 454 And see, 134 Mass. 44; Fake v. Addicks, 4 
 
 as to sufficiency of notice, Knowles Minn. 37, 33 Am. St. Rep. 716. 
 
 V. Mulder, and cases cited in note, ^i Plumley v. Birge, 124 Mass. 57, 
 
 16 Am. St. Kep. 627. 36 Am. Rep. 645. 
 
 < Meredith v. Reed, 26 Ind. 334 
 9 
 
130 INJUEIES BT ANIMALS. 
 
 Sometimes a vicious animal may lawfully be killed, though 
 the ciroumstamces would not support an action against the- 
 owner;' but before one could be justified in killing animals 
 that were property at the common law, it would be necessary 
 to show that protection to more valuable property or to human 
 beings appeared to require it.^ The liability of owners of dog& 
 for injuries done by them is regulated by statutes in many 
 states.' 
 
 "Where the domestic animals of different owners unite in 
 committing an injury, the wrong is not a joint wrong of the 
 owners ; each owner must be sued separately for the damage- 
 done by his own beast.* 
 
 Injuries by wild beasts. — If the keeping of animals fergt 
 natwrcB is not a wrohg in itself, then no wrong can come from 
 it until there is negligence on the part of the keepers. An 
 action has been sustained for an injury by the bite of a monkey, 
 though no negligence was charged, in the declaration; ' but the 
 keeping of wild animals for many purposes has come to be rec- 
 ognized as proper and useful, and the idea of legal wrong in 
 keeping and exhibiting them is never indulged. Therefore it 
 would seem that the liability of the owner or keeper for any 
 injury done by them to the person or property of others must 
 rest on the doctrine of negligence.* 
 
 A very high degree of care is demand'ed of those who have 
 them in charge ; but if, notwithstanding such care, they are 
 enabled to do mischief, the injury would be considered acci- 
 dental, and no action could be sustained. 
 
 1 See Putnam -v. Payne, 13 Johns. ' See Spaight v. McGovem, 16 R L 
 312. 658, 7 L. R. A. 388. In Kentucky, a 
 
 2 See Woolf v. Chalker, 81 Conn, person bitten by a savage dog may 
 131. It is held that a ferocious dog, recover punitive, as -well as actual, 
 or one that has been bitten by a mad damages, if the owner had knowl- 
 dog, may be killed as a nuisance, edge of the dog's dangerous disposi- 
 Putnam v. Payne, supra; Nehr v. tion. Koestel v. Cunningham (Ky.)r 
 State, 35 Neb. 638, 17 L. R. A. 771; 80 S. W. Rep. 970. And see Galvin 
 Brown v. Carpenter, 26 Vt. 638, 63 v. Parker, 154 Mass. 346. 
 
 Am. Dec. 603. Other-wise if the dog < Adams v. Hall, 3 Vt 9, 19 Am., 
 
 is properly ponfined on the owner's Dec. 690. Contra, Jack v. Hudnall, 
 
 premises. Uhleia v. Cromack, 109 35 Ohio St. 255, 18 Am. Eep. 298. 
 
 Mass. 273 ; Perry v. Phipps, 10 Ired. 5 May v. Burdett, 9 Q. B. (N. S.) 101. 
 
 259. As to the right to kill dogs, see sSee Earl v. Van Alstine, 8 Barb. 
 
 Hubbard v. Preston, 90 Mich. 221, 15 630; Scribner v. Kelley, 38 Barb. 14. 
 L. R. A. 349. 
 
CHAPTEE XII. 
 
 I 
 
 INJURIES TO INCORPOEEAL RIGHTS. 
 
 Incorporeal rights are said to exist merely in idea and ab- 
 stract contemplation, though as regards njiany of them their 
 effects, in which consists their value, are objects cognizable by 
 the bodily senses. In the classification of property as real or 
 personal, some of these rights are designated incorporeal here- 
 ditaments, either because they are or may be inheritable, or be- 
 cause they issue out of, or are annexed to, or exerqisable within, 
 corporeal hereditaments. AH those rights which at common 
 law may be inherited, such as franchises, pensions, annuities 
 and the right to rents, may have a money value, and are there- 
 fore properly considered as property rights ; but there may be 
 other lights Qorresponding to these which are only personal 
 property, since they are neither inheritable nor in any manner 
 connected with the realty. Chief among these is the right 
 which one has to the production of his ihteUect. 
 
 Copyrights and patents. — By copyright and patent laws 
 the governments of civilized countries have made provisions to 
 secure to authors and inventors, for a certain length of time, a 
 monopoly in the publication or reproduction of that which 
 they have produced, invented or designed. The author, in- 
 ventor or designer becomes entitled to remedies by means of 
 which he may protect himself in his monopoly during the 
 period limited by law, upon complying with certain conditions 
 named in the statute. In the case of a book, writing or design, 
 the applicant must be the author or designer, or the assignee 
 thereof, and must conform to the requirements provided by the 
 law. It is generally required, among other things, that the 
 applicant be a citizen, or at least a resident, of the country. 
 
 An inventor applying for a monopoly must make it appear 
 that the invention is new and useful and must comply with aU 
 legal formalities. 
 
 The violation of a monopoly once properly evidenced by cer- 
 tificate or patent is a legal wrong punishable by penalties or 
 
132 INJ0EIES TO INCOEPOEEAL EIGHTS. 
 
 by da,mages, or by both ; but if it shall turn out that the book, 
 design, etc., was not original, or that the invention Avas not 
 new, the law will afford no protection. Foreign countries, in 
 consideration of reciprocity, sometimes give a similar monopoly 
 within their own limits. 
 
 Inventions not patented.^- In considering whether the com- 
 mon law affords the author or inventor any redress in case his 
 rights are disregarded, it may be remarked that the law has 
 made distinctions between. the case of inventions and the other 
 cases mentioned. In determiniug accurately who is entitled 
 to the merit of an invention, there is frequently the greatest 
 difficulty, which is vastly increased if the invention is suffered 
 to come into use before the title is claimed and passed upon by 
 the proper authorities. For this reason the law wiU not recog- 
 nize property in an invention aftfer the inventor has suffered it 
 to be published to the world without making, in the manner 
 pointed out by law, a claim on his own behalf to the exclusive 
 property therein.^ If an inventor voluntarily allows the pro- 
 duction of his genius or skill to come into use, it is reasonable 
 to presume that his purpose has been to make a gift of his in- 
 vention to the world.^ If, however, he simply delayed apply- 
 ing for letters patent until the discovery has been brought into 
 use by another, he may still secure his monopoly. For of two 
 iadependent discoverers, only the first is entitled to the protec- 
 tion.' But there is no monopoly until the letters are obtained. 
 
 Literary and artistic productions. — "Writings, pictures, etch- 
 ings, etc., stand on a different footing. Persons working indi- 
 vidually would never produce the same identical book or pict- 
 ure,* though they might reach the same identical discovery and 
 apply it in useful machinery. Besides, disputes respecting the 
 authorship of contemporary literary productions can seldom 
 arise, and therefore the recognition of a common-law right in 
 literary productions and works of art can result in very little 
 embarrassment. 
 
 Here, however, as in the case of inventions, no monopoly in 
 publication is secured except by compliance with statute. But 
 
 ' Shaw V. Cooper, 7 Pet. 293. righted. Falk v. Gast L. & E. Ca, 
 
 2Pennookv. Dialogue, a Pet. 1. 48 Fed. Rep. 363. A stage dance 
 
 ' Bedford v. Hunt, 1 Mason, 303. may not be. Fuller v. Bemis, 50 
 
 * A photograph may be copy- Fed. Rep. 936. 
 
INJURIES TO INCORPOEEAL RIGHTS. 133 
 
 the author has no ocoasion to take^ out a copyright until publi- 
 cation, and he may, therefore, control his own production and 
 publish it or not, at his option ; and others, though they may 
 become familiar with it by some means, are not at liberty to 
 publish it without the author's consent.^ 
 
 "When, however, an author or an artist publishes his produc- 
 tion, he is supposed to abandon it to the public, and he thereby 
 licenses the pubUo to reproduce copies indefinitely. It must 
 be remembered that the word " publication " is not used here in 
 the broad sense which it bears in the law of libel and slander. 
 A publication, to constitute an abandonment, must be literally 
 one which puts a production before the general public.^ The 
 writer of a literary, dramatic or musical composition, or work 
 of art, is entitled of right to give it a restricted publication, 
 and to be still protected in his property, provided he gives evi- 
 dence of a clear intent to make his publication a restricted one 
 only. He may enjoin any attempt to take the first general 
 publication from him, and he may refuse publication altogether. 
 After his death his representatives may exercise and control 
 the right to publish. This common-law right would be pro- 
 tected in any country where the common law prevails, and 
 probably also wherever the civil law prevails. 
 
 A copyright "may be violated by the republication . of the 
 whole or any distinct part thereof verbatim, by the publication 
 of an abridgment, or by reproducing the whole or a part with 
 such alterations or disguises as are calculated and designed to 
 give it the character of a new work.' "What constitutes piracy 
 of a work is frequently a very nice question. ' It is often said 
 that an abridgment is not piracy of the original copyright; 
 but in a given case the question may turn not so much upon 
 the quantity as upon the value of the selected materials.* A 
 new plan, arrangement and illustration of old materials may 
 not only be no piracy, but may entitle the author thereof to 
 
 1 Wheaton v. Peters, 8 Pet. 591. ' See Belf ord v. Scribner, 144 U. S. 
 
 2 An author does not abandon his 488. It is an infringement to copy 
 play to the public by allowing it to engravings or etchings without tint, 
 be publicly acted. Boucicault v. title and plate mark. Fischel v. 
 Fox, 5 Blatch. 87. And see Bartlett , Lueckel, 53 Fed. Eep. 499. 
 
 T. Crittenden, 4 McLean, 300, 5 Mo- * Gray v. Russell, 1 Story, 11. 
 Lean, 33. 
 
13-i INJUEIES TO INCOKPOEEAL EIGHTS. 
 
 the copyright as in the case of a scientific work.* So may the 
 translation of an original work.' 
 
 An author ftiay be Kbeled in respect to his publications, or 
 the books themselves may be libeled by false statements ' and 
 suggestions regarding their purpose or tendency, their original- 
 ity or untruthfulness, or by garbled extracts or perversions of 
 language or meaning in criticism; for example, an insinuation, 
 based on unfair deductions or garbled extracts, that the pur- 
 pose or tendency of the work was to inculcate bad morals, 
 would be libelous.^ Fair criticisiii is allowable, but the author 
 is entitled to substantial redress 'tvhen malice inspires unjust 
 and untruthful comment.' 
 
 Private letters often have a value for publication, and the 
 question sometimes arises who, as between the writer and the 
 receiver, has the right to control their publication. For more 
 convenient discussion letters may be classified : 
 
 1st. As literary productions. 
 
 2d. As historical documents. 
 
 3d. As evidence of facts important to individuals. 
 
 ith. As a means of personal vindication to the writer or 
 receiver. 
 
 5th. As a means of inflicting injury to the writer or receiver. 
 
 6th. As autographs. 
 
 Under the first head will faU such letters as those of Lord 
 Chesterfield to his son, and all others which, from their intrinsic 
 literary merits, it mi^ht be deemed desirable to publish under 
 an expectation of profit. The literary properties in such let 
 ters and the right to determine their publication is in the 
 writer, unless from the circumstances under which they are 
 transmitted it may be fairly implied that they are given to the 
 I party addressed for publication.® , 
 
 It has been said that the writer of a letter may enjoin the 
 publication of it by the receiver; but when one Writes and sends 
 a letter, he at least parts with the property in the paper on 
 
 1 Emerson v. Davies, 3 Story, 768. 3 See Archibald v. Sweet, 5 G. & P. 
 As to dramatic works, see Aronson 219. 
 
 V. Baker, 43 N. J. 365. 4 gee Eeade v. Sweetzer, 6 Abb. Pr. 
 
 2 Stowe V. Thomas, 3 Wall. Jr. 547. (N. S.) 9, note. 
 
 As to what does and what does not ^ Cooper v. Greeley, 1 Den. 847. 
 constitute piracy of published law « Pope v. Curl, 3 Atk. 343. 
 reports, see West Pub. Co. v. L. C. P. 
 Co., 64 Fed. Eep. 360, 25 L. R A. 441. 
 
mjTJEIES TO INCOEPOEEAL EIGHTS. 135 
 
 ^vhich the letter was written, and there is no implied reserva- 
 tion of the liberty to recall it. If the writer has not retained 
 <5opies, he cannot obtain them by any legal process. 
 
 Letters which have a value as historical documents may also 
 possess a value for publication with a Yiew to profit; but prob- 
 ably the literary property of the writer in them would not 
 prevent the use of them by the receiver, or by others with his 
 permission, as historical evidence. The writer cannot be re- 
 garded as having any property in letters which are of value 
 only as evidence of private transactions which may become 
 the subject of a legal controversy. Their production as evi- 
 dence in court may be compelled by any person upon whose 
 business transactions th^ may throw light. Whatever prop- 
 •erty there may be in such letters is in the receiver, who may 
 make such disposition of them as he may see fit. 
 
 And so where the value of the letter consists in the means 
 it may afford for the vindication of the writer against any un- 
 founded charge, he has no power to malce it available unless he 
 has preserved a copy. The receiver, however, may make use 
 of it for his own vindication ; but if he shall pubUsh respecting 
 others what shall prove untrue and defamatory, he may be pro- 
 ceeded against for libel. 
 
 Literary property in letters is usually protected by enjoining 
 their pubUcation by the receiver. It has been decided that 
 ohancery will not enjoin the publication of private letters un- 
 less they possess a literary value ;^ but the more sensible doc- 
 trine seems to be that publication of such letters may be en- 
 joined on the ground of violation of confidence and injury to 
 the feeMngs.^ 
 
 A letter valuable only as a curiosity or as an autograph is 
 the property of the receiver, who may use it as property only 
 at his option. It cannot be taken from him on execution, or 
 demanded from him by an assignee in bankruptcy.^ At his 
 death such letters would be family papers which his adminis- ■ 
 trator could not of right demand. But in the case of auto- 
 graphs which have been bought for a collection, where no 
 
 iWetmore v. Scovel, 3 Edw. Ch. Grigsby v. Breckinridge, 2 Bush, 
 515. 480, 93 Am. Deo. 509. 
 
 2 See Story, Eq. Jur., §§ 946-948; 3 gee Thompson v. Stanhope, Amb. 
 
 737. 
 
136 INJURIES TO INCOEPOEEAL EIGHTS. 
 
 matter of personal confidence as between the writer and the- 
 owner is involved, they should be regarded as being a part of 
 the owner's general estate and subject to all the incidents of 
 personal property in general. 
 
 Wrongs in respect to trade-marks. — ^Whatever name, desig- 
 nation, label or device has in any manner been appropriated 
 by a person or association of persons engaged in any lawful 
 business, as the particular name or designation of the business- 
 or article produced,' becomes a trade-mark, in the use of which 
 he or they are entitled to be protected. By adopting and mak- 
 ing use of a trade-mark a property right has been acquired 
 therein which is valuable ; and besides, another in making use 
 of it practices a fraud not only upon the public, who are thereby 
 deceived into purchasing one article when they suppose they 
 are getting another, but also upon the proprietor of the trade- 
 mark, whose own dealings with the public are likely to be lim- 
 ited in proportion as the public are induced to deal with the 
 fraudulent appropriator.* 6n these grounds the use of a trade- 
 mark by one having no right to it may be enjoined and the 
 damages may be recovered for the violation of the right to its 
 exclusive use.' 
 
 Wlmt may ie a trade-ma/rTi. — Generally a man may adopt 
 for a trade-mark whatever he chooses. Unquestionably he has 
 a right to the exclusive use of an arbitrary or fanciful name or 
 device first brought into use by him; * but mere designation of 
 a quality cannot be appropriated as a trade-mark; nor can any 
 general description by common words of the kind of article, or 
 its natures or qualities." Nor, as a general thing, can a man 
 
 1 The officje of a trade-mark is to ^ Raggett v. Findlater, L. R. 17 Eq. 
 point out the origin or ownership "of Cas. 39; Caswell v. Davis, 58 N. Y. 
 the article to which it is affixed. 333, 17 Am. Rep. 233; Burke v. Cassin, 
 Lawrence Mfg. Co. v. Tennessee Mfg. 45 CaL 467, 13 Am. Rep. 204; Law- 
 Co., 138 U. S. 537. rence Mfg. Co. v. Tennessee Mfg. Co., 
 
 2 McCartney v. Garnhart, 45 Mo. 138 U. S. 537; as the words "iron 
 
 593, 100 Am. Dea 397. bitters," Brown Chemical Co. v. 
 
 Sffigh on Inj. 673; Congress, etc. Meyer, 139 U. S. 540; "best six cord," 
 
 Co. V. High Rock, etc. Co., 45 N. Y. Coats v. Merrick Thread Co., 149 U. 
 
 291,6 Am. Rep. 83; Seixo v. Prove- S. 563; "microbe kiUer," AUE v. 
 
 zende, L. R 1 Ch. App. 191. Radam, 77 Tex. 530, 9 L. R A. 145. 
 
 *Bell V. Locke, 8 Paige, 75; Law- And see Munro v. Tousey, 139 N. Y. 
 
 rence, etc. Co. v. Woolen Slills, 139 38, 619, 14 L. R A. 345. 
 Mass. 335, 37 Am. Rep. 363. 
 
INJURIES TO INCOEPOEEAL EIGHTS. 13T 
 
 acquire an exclusive right to his own name as a trade-mark as 
 against others of the same name who may see fit to engage in 
 the same business. But one will not be allowed to take ad- 
 vantage of the circumstance of an identity of names to with- 
 draw trade from a rival by practicing a deception upon the 
 public.^ The name of a place may not be appropriated as a 
 trade-mark as against others who may see tit to engage in the 
 same business at the same place,^ though it may be as against 
 one who at a different place undertakes to appropriate it.' 
 
 The trade-mark may be applied to a natural product as weD: 
 as to a manufacture.* The right to it may be sold with the 
 business, but not without.* And if it is allowed without objec- 
 tion to come into common use in the trade it will be lost.' 
 
 WJmt is an infringement. — To constitute an infringement 
 it is suiBcient that there is such a substantial similarity that 
 the publio would be likely to be deceived;' as, for example, 
 the change from " Hostetter's Celebrated Stomach Bitters " to 
 " Holsteter's Celebrated Stomach Bitters." * In case a party 
 attempt to mislead, the courts will be slow in applying a 
 rule laid down in one case,' that where ordinary attention on 
 the part of customers will enable them to discriminate between 
 trade-marks of different parties the court will not interfere.'" 
 
 ;iMeneely v. Meneely, 62 N. Y. 427, * Dunbar v. Glenn, 42 Wis. 118, 24 
 
 20 Am. Rep. 489; Meriden, etc. Co. Am. Rep. 395. 
 
 V. Parker, 39 Conn. 450, 12 Am. Rep. * Banks v. Gibson, 34 Beav. 566. 
 
 401; HoUoway v. Holloway, 13 Beav. And this though it consist largely of 
 
 209; Brown Chemical Co. v. Meyer, the name, initials or residence of the 
 
 supra; Gato v. El Modelo Cigar Mfg. vendor. Symonds v. Jones, 82 Me. 
 
 Co., 25 Fla. 886, 6 L. R. A. 823. The 302, 8 L. R. A. 570. 
 
 rule does not apply " where the de- « Ford v. Foster, L. R. 7 Ch. Appt 
 
 fendant, as in the case of a corpora- 611; Caswell v. Davis, 58 N. Y. 223, 
 
 tion, selects its own name; especially 17 Am. Rep. 233. 
 
 where it appears that such name is ' Columbia Mill Co. v. Alcorn, loft 
 
 selected with an intention to de- U. S. 460. Positive proof of fraudu- 
 
 ceive." Rogers Mfg. Co. v. Rogers, lent intent is not required where the 
 
 06 Fed. Rep. 56. proof of infringement is clear. Le 
 
 ^Glendon Iron Co. v. Uhler, 75 Page Co. v. Russia Cement Co., 5 U. 
 
 Pa. St. 467, 15 Am. Rep. 599. S. App. 112, 17 L. R. A. 354 
 
 3 Newman v. Alvord,51 N. Y. 189, spopham v. Cole, 66 N. Y. 69, 2a 
 
 10 Am. Rep. 588. Names in common Am. Rep. 22; Hostetter v. Vowinkle, 
 
 use as designating locality cannot 1 DilL 329. 
 
 be used. Columbia Mill Co. v. Alcorn, 9 Popham v. Cole, supra. 
 
 150 IT. S. 460. And see Laughman I'Gcrham Co. v. White, 14 WalL 
 
 V. Piper, 128 Pa. St. 1, 5 L. R. A. 559. 511, 528. 
 
138 EfJUBIES TO IHOOEPOKEAL EIGHTS. 
 
 Aliens resident in the country will be given protection in 
 their trade-marks as well as citizens ; ' but the trade-mark that 
 in itself is fraudulent and deceptive cannot be the subject of 
 property and will not be protected. The maxim, "he who 
 comes into equity must come with clean hands," has been often 
 applied to bills to restrain by injunction the counterfeiting of 
 trade-marks. No one has a right to sell his own goods as the 
 goods of another, and equity will interfere in such- cases to pro- 
 mote honesty and fair dealing. Where the trade-mark in 
 Spanish, of cigars made in ISew York, contained a representation 
 that they were made in Havana, a bill to restrain the use of an 
 imitation was dismissed.^ 
 
 The good will of a business is often very valuable property. 
 But what has been said about infringement of rights and trade- 
 marks will apply to all devices by means of whiph one endeav^ 
 ors to deprive another of the value of the good will of his busi- 
 ness by deceiving the public. Here, as in other cases of fraud, 
 the law regards not so much the means as the end of the de- 
 ception. To steal or to injure the good wiU of the business by 
 any species of deception is a wrong which wiU be redressed by 
 remedies appropriate to the circumstances. 
 
 A right of common consists in the right to have some defi- 
 nite common enjoyment with the owner in certain real estate. 
 The rights of common possessed by tenants of a manor in many 
 cases furnish suitable illustrations. In England the tendency 
 of legislation has been to diminish the number and extent of 
 these rights. The circumstances attending the settlement of 
 America were not favorable to the establishment of similar 
 rights. The cultivators of land for the most part acquired and 
 owned independent estates. In the New England colonies 
 lands granted in common to those who planted a new town 
 were for a considerable period made use of in common by the 
 inhabitants. The taking of shell fish along the shores of tide 
 water between high and low water mark and the taking of sea 
 weed thrown up by the sea was and is of common right to the 
 
 1 Taylor v. Carpenter, 3 Story, 458; an illegal business is not entitled to 
 lia Croix v. May, 15 Fed. Rep. 238. protection. Portsmouth, etc. Co. v. 
 
 2 Palmer v. Harris, 60 Pa. St. 156, Portsmouth, etc. Co. (N. JL), 30 Atl. 
 100 Am. Dec. 557. One engaged in Eep. 346. 
 
mjUEIES TO INCOEPOEEAL EIGHTS. 139 
 
 7)eople except where, by colonial ordinance, the riparian pro- 
 prietorship was extended to low-water mark.* 
 
 The distinction must be noted, however, between what are 
 proprietary rights in common and the right to participate with 
 the general public in the enjoyment of those rights which per- 
 tain to the sovereignty. Such rights as the right to make use 
 of the public highways, commons, parks, the right to hsh in 
 public waters, the right to visit and have- the customary bene- 
 fit of pubhc offices, etc., CTnanatefrom the sovereignty, and their 
 ■equal enjoyment by aU wih be protected by it.^ Whether or 
 not exclusive privileges may be granted in such, rights as are 
 susceptible of being made available for profits, as in the case of 
 fisheries, is exclusively*a matter of sovereign discretion. 
 
 In the case of any of these public rightSj one might be 
 wronged in being excluded therefrom by another, or in being 
 Impeded in its enjoyment; but in the absence of legislation it 
 would be difficult to obtain redress against one for a merely 
 excessive appropriation of that which was common to the us© 
 of all.' 
 
 In the absence of statute, perhaps it may be considered a 
 part of the common law of the land that' when two persons 
 meet on a public highway they shaU turn to the right of the 
 middle of the main traveled path. One injured by reason of 
 the failure of another to observe this rule may recover the 
 damages suffered if he was himself free from fault. But if - 
 one injured in this way takes no pains to avoid the collision, 
 his contributory negligence will defeat recovery.* 
 
 Injuries to rights in easements. — Easements have of late 
 become so numerous that only a few of the more important 
 can be named here. Contracts are sometimes entered into to 
 control the use of a particular lot and the manner in which it 
 shall be built upon ; and these establish rights in the nature of 
 easements. They may be enforced in equity at the instance 
 
 1 See Packard v. Eyder, 144 Mass. < Baker y. Portland, 58 Me. 199, 4 
 440, 59 Am. Rep. 101, and cases cited; Am. Rep. 274 The case of the in- 
 Mather v. Chapman, 40 Conn. 383, 15 vasion of one's pght to the use of 
 Am. Rep. 46; Phillips v. Rhodes, 7 highways by excluding him from it, 
 Met. 333. or by making difficult his means of 
 
 2 Crandall v. Nevada, 6 Wall 35. access will more properly be con- 
 ' See Goodman v. Mayor, etc. Salt- sidered in the chapter entitled Nui- 
 
 ash, L. R. 7 App. Cas. 633. sances. 
 
140 INJUEIES TO mCOKPOEEAL EIGHTS. 
 
 of the owners of the lands for the benefit of which they are to 
 be established.' An instance of this is where the proprietor of 
 a town plat in the deeds he gives inserts a i^rovision that a 
 certain business, regarded as offensive, shall not be permitted 
 on the premises ; ^ or that the buildings shall be constructed a 
 certain distance from the streets.' The relief in equity in such 
 cases is awarded in part because the law can afford none.* 
 
 The right to pass and repass over the land of another is a 
 more common easement, and may come into existence by grant, 
 by prescription, or as a way of necessity. If the right is created 
 by grant, the way must be defined and located either by the 
 grant itself or by the acts of the- parties; and if not located by 
 grant or consent, the grantee may select the route for it.* If 
 established by prescription, the user must determine the loca- 
 tion.® Where one grants a parcel of land so surrounded by 
 other lands owned by himself that access to it, except over 
 such lands, is impracticable, he grants by implication a right 
 of way over his own land to that he has sold. "Where lands 
 he has sold so surround a parcel retained by himself that ac- 
 cess to the latter can be had only over that he has granted, he 
 reserves the right of way.' In either ease the way may be 
 located by the owner of the tenement over which it must ex- 
 tend ; but if he refuses the request to locate the way, or selects 
 it unfairly, the party entitled to the easement may locate it 
 himself. "When the way is once located, it cannot be changed 
 except by mutual consent.* There may also be a right' of 
 way for any purpose for which one might have occasion to 
 make use of a passage across his neighbor's land for the greater 
 or more convenient use of his own; as for pipes to carry 
 water, gas, etc., or for drains ; and this may be acquired by 
 grant or prescription. But such ways do not come into existence 
 as w^ays of necessity, strictly, though they often arise by im- 
 plication from grants, the benefits of whioli cannot be enjoyed 
 without them and must therefore be understood to have con- 
 
 1 Hills V. MiUer, 3 Paige, 254 6 jones v. Percival, 5 Pick. 485. 
 
 2 Barrow v. Eichard, 8 Paige, 351. TThe necessity must be positive. 
 sHubbell v. Warren, 8 AUen, 173. Gayetty v. Bethune, 14 Mass. 49, 7 
 < Brewer v. Marshall, 19^1. J. Eq. Am. Dec. 188. 
 
 537. 8 Holmes v. Seely, 19 "Wend. 507. 
 
 sHart V. Connor, 35 Conn. 331. 
 
INJURIES TO INOOEPOEEAL EIGHTS. 141 
 
 lemplated them.^ Easements of light and air, and for the sup- 
 port of buildings and drains, frequently come into existence by 
 implication from grants in this way. 
 
 The grant of a right of way confers nothing more than the 
 iair enjoyment of the privilege, and must be so construed as 
 not needlessly to restrict the enjoyment of his estate by the 
 owner of the servient tenement.- 
 
 Any obstruction to an easement or any encroachment upon 
 it, or any disturbance of the soil, or that by means of which 
 the easement is enjoyed, is an actionable wrong, provided dam- 
 age is caused by it. Only the owner of the land subject to an 
 ■easement can bring ejectment against the disturber; for the 
 possession of the land is in him, and those acts which would 
 ■constitute trespass on lands are not trespass in respect to an 
 easement. If, however, the act be one which, if persisted in, 
 may at length ripen into an adverse right, an injury will be 
 presumed ; as, for instance, if a fence is erected across a private 
 way, or a water-course is diverted.' This, of course, would not 
 apply where an easement is for a special and temporary pur- 
 pose only, as a right of way to repair a house.* 
 
 An action for a disturbance of an easement may be main- 
 tained by whoever is owner of the dominant tenement at the 
 time of the injury, or by whoever has an interest therein which 
 ■entitles him to the enjoyment of an easement.* The reversioner 
 of a dominant tenement under lease may also sue if his rights 
 ^are affected by the injury.* Suit may be brought against the 
 •owner of a servient tenement if injury was done by him or with 
 his permission ; and if it consists in an obstruction or encroach- 
 ment which is continued by his successor in title, the latter 
 may be held responsible if he fails to remove it within a rea- 
 sonable time after notice.' An obstruction or an encroachment 
 would constitute a private nuisance which the owner of the 
 
 •See Carbeley v. Willis, 7 Allen, 6 Hastings v. Lavermore, 7 Gray, 
 
 364, 83 Am. Dec. 688. 194 
 
 2 Atkins T. Bordman, 3 Met. 457; « Brown v. Bowen, 30 N. Y. 519, 86 
 Garland v. Furber, 47 N. H. 801. Am. Dec. 406; Tinsman v. Belvidere 
 
 3 See EUiott v. Fitchburg R, Co., 10 E. Co., 25 N. J. 355, 64 Am. Dec. 
 •Cush. 191, 57 Am. Dec. 85; Nicklin 415. 
 
 ^. Williams, 10 Exch. 259. 'Woodman v. Tufts, 9 N. H. 88; 
 
 * Phipps V. Johnson, 99 Mass. 26. Dodge v. Stacy, 39 Vt. 558, 
 
142 INJURIES TO INCOEPOEEAL EIGHTS. 
 
 easement may abate wherever it is practicable, taking care al- 
 ways not to exceed his right, or cause injury to a third person.* 
 
 A party wall is a Avail on the division line of estates, which 
 each proprietor is at liberty to use as a support to his building. 
 "When such a waU stands in part on the land of each, it is pre- 
 sumed to be owned by the two till the contrary is shown.^ At 
 the common law no person was under obligation to unite with 
 his neighbor in building a party wall, or even to furnish his 
 proportion of the, land for it to stand upon; but an erection 
 mi^t be made d party waU by agreement ; and if one per- 
 son allowed another to make use of his wall for the support of 
 a building, and to continue the use for twenty years, the grant 
 of a right to do so was presumed, and the wall became a party 
 wall by prescription. Statutes now permit the proprietor to 
 build into his neighbor's wall for the support of his own build- 
 ing, provided the wall is sufficient for the purpose, on making 
 payment of the just proportion of the cost.' 
 
 Where a party wall is built by agreement, the strict rule of 
 law requires a deed ; but if the agreement was by parol only,, 
 no doubt the doctrine of equitable estpppel would apply. K 
 one erects a block of houses or shops and then conveys them 
 separately to purchasers, the walls become party walls for 
 mutual benefit.* Each proprietor has an easement in the land 
 of the other for the use, repair and support of the wall; but 
 the extent of his rights may be limited by the contract with- 
 respect to the wall, or by the user, or by the statute under 
 which it was built or is owned.' Each proprietor may, when- 
 he finds it for his own interest to do so, increase its height,, 
 sink the foundation deeper, and on his side add to it, but in 
 doing so he insures the other proprietor against damages.' If 
 
 iSee Ganley v. Looney, 14 AUen, 5 Brooks v. Curtis, 50 N. Y. 639, la 
 
 40; Amick v. Tharp, 13 Grat. 564, 67 Am. Eep. 545. 
 
 Am. Deo. 787. sSee Adrae v. Haseltine, 58 Wis. 
 
 2 Campbell v. Mesier, 4 Johns. Ch. 395, 46 Am., Rep. 685; Hieatt v. Mor- 
 385, 8 Am. Dec. 570. See Harber v. ris, 10 Ohio St. 523, 78 Am. Deo. 280; 
 Evans, 101 Mo. 661, 10 L. R. A. 41. Brooks v. Curtis, supra; Matthews - 
 
 3 See Deere v. Weir-Shugart Co. v. Dixey, 149 Mass. 595, 5 L. R. A. 
 (la.), 59 N. W. Rep. 255; Halpine v. 102. In Negus v. Becker, 143 N. Y. 
 Barr (D. C), 21 Wash. L. Rep. 106. 303, 25 L. R A. 667, it was said that 
 
 <Matts V. Hawkins, 5 Taimt. 20; the party buUding insures the safety 
 Wheeler v. Clark, 58 N. Y. 267. of the operation only as to the- 
 
INJURIES TO mCOEPOEEAL EIGHTS. 
 
 145 
 
 the wall becomes ruinous and ceases to answer the purposes of 
 support, or if it is destroyed by fire, the easement is at an end 
 and each proprietor may build as he pleases upon his own land,^ 
 without any obligation to accommodate the other.* Eights in 
 party walls pass with the land to heirs or assignees without 
 being specially mentioned in the conveyance.^ 
 
 strength of the wall to support the 
 addition, or the manner of its con- 
 struction; that he does not insure 
 against uncontrollable accident or 
 the negligence of third persons. 
 « Partridge v. GUbert, 15 N. Y. 601, 
 
 69 Am. Dec. 633; Antomarchi v. Rus- 
 sell, 63 Ala. 356, 35 Am. Rep. 40; 
 Heartt v. Blruger, 131 N. Y. 386, 9 L. 
 R. A, 133. 
 
 *See Standish v. Lawrence, IIL 
 Mass. 111. 
 
CHAPTER Xin. 
 
 NEGLECTS OF OFFIdAli DUTY. 
 
 Offices are trusts. — Public office is a public trust and is 
 ■conferred for the benefit of the political society.* Though the 
 incumbent has a property right in the office, it is from the 
 standpoint of pubUe interest that any failure in duty is to be 
 regarded, and the remedy for such failure must be indicated 
 by the nature of the duty and the purpose intended to be 
 accomplished in imposing it. 
 
 Classification. — Official duties are classified as legislative, 
 executive and judicial; but the classification is not exact. 
 There are many officers whose duties cannot be arranged ex- 
 clusively imder either of these heads; and officers vrho merely 
 •execute the commands of superiors are denominated minis- 
 teriaL 
 
 The incumbents of some offices are required to perform 
 duties which specially concern individuals but only indirectly 
 concern the public; for example, a sherifif, though he serves 
 criminal process, preserves order in court, and is conservator 
 of the pubhc peace, serves civil process also. In any particular 
 case the nature of the duty suggests the remedy for neglect. 
 He is amenable to the state for failure to perform a duty to 
 the state, but for the neglect of a duty to an individual, only 
 the person injured may maintain suit. For neglect of an offi- 
 cial duty an action can be maintained, as a general thing, against 
 ministerial officers only, for the reason commonly given that it 
 is inconsistent with the nature of the functions of other officers 
 that they should be made to respond in damages for failure in 
 satisfactory performance. 
 
 It is inconsistent with the full discretionary authority of the 
 legislature in all matters of legislation that the members should 
 be called to account at the suit of individuals for their acts and 
 neglects. Discretionary power is in its nature independent; 
 
 iBeebe v. Kobinson, 52 Ala. 66; Cottingham v, McKay, 86 N. C. 341. 
 
NEGLECTS OF OFFICIAL DUTY. 145 
 
 to make those who wield it liable to be called to account by 
 sbme other authority is to take away discretion and destroy in- 
 dependence. This applies to legislative bodies proper, and also 
 to such inferior legislative bodies as boards of supervisors, city 
 councils and the like.* For the failure of such bodies to per- 
 form their duties, the courts can interpose only to set them in 
 motion, not to compel them to reach particular conclusions nor 
 to impose damages upon them for their neglect.^ 
 
 There can, however, be a private action for neglect of the 
 ministerial duties imposed upon legislative bodies, in the per- 
 formance of which its members severally are required to act, 
 no discretion being allowed. Duties of this kind are sometimes 
 imposed on the members of such subordinate boards as super- 
 visors and county commissioners. 
 
 A similar rule applies in the case of executive oflBcers. A 
 governor of a state, in the exercise of the power given him to 
 grant pardons and reprieves, to command the mUitia, to refuse 
 his assent to laws, to take steps necessary to the proper en- 
 forcement of laws, exercises his discretion, and is not responsible 
 to the courts for the manner in which his duties are performed. 
 Further, he could hot be made responsible to private parties 
 without subordinating the executive department to the judi- 
 cial department ; and this would be inconsistent with the theory 
 of our institutions, for each department in its own province 
 must be independent. 
 
 We find the rule to be the same in case of the judicial de- 
 partment. The judge cannot be sued because of delaying his 
 judgment, or because he fails to bring to his judgment aU the 
 care, diligence and prudence that he ought to bring ; or be- 
 cause he decides on partial views and withdut sufiicient in- 
 formation. 
 
 Every judge may be required to perform duties in which he 
 is not permitted to exercise his discretion. The habeas corpus 
 acts, for example, make it imperative that a judge, when an 
 aipplication for the writ is presented which makes out a, prima 
 facie case of illegal confinement, shall issue a writ forthwith ; 
 and the judge is expressly made responsible in damages if he 
 fails to obey the law. A similar liability arises when a justice 
 
 1 Baker v. State, 27 Ind. 485. « Wells v. Atlanta, 43 Ga. 67. 
 
 10 
 
146 NEGLECTS OF OFFICIAL DCTTY. 
 
 of the peace refuses to issue a summons to one who lawfully 
 demands it, or an execution on a judgment he has rendered;' 
 or to enter up a judgment he has determined upon; ^ or to per- 
 form any other official act which in its nature is purely min- 
 isterial; or when in performing an official duty he is guilty of 
 misconduct to the prejudice of a party, as where he makes a 
 'false return to a writ of certiora/ri? 
 
 There are, however, many cases of powers not discretionary 
 for the manner of whose performance there can be no responsi- 
 bility to individuals. The sheriff, for example, is under no re- 
 sponsibility to individuals for any neglect of duty in respect to 
 the execution of a convict, though in such a matter he is allowed 
 no discretion. Plainly it is not only because duties are dis- 
 cretionary that officers are exempt from civil suits in respect 
 to their performance. No man can have any ground for pri- 
 vate action until some duty owing to him has been neglected. 
 If the sherifif had received for service an, execution against 
 the goods and chattels of his debtor, his duty would still have 
 been ministerial, but it would have been a duty owing to the 
 individual, and for a failure in performance the individual 
 would be entitled to an appropriate redress. 
 
 The rule of official responsiliility then may be stated thus: 
 If the duty imposed upon an officer is a duty to the pubMc, a 
 failure to perform it or an inadequate or erroneous performance 
 is a public injury, and must be redressed, if at all, in some form 
 of public prosecution;* but if, on the contrary, the duty is a 
 duty to an individual, then a neglect to perform it properly is 
 an individual wrong, and may support an individual action for 
 damages.' This rule embraces discretionary powers, for these 
 are conferred only where the duties to be performed are public 
 duties, and concern individuals only incidentally. The per- 
 formance of their duties by members of legislative bodies may 
 benefit individuals, and the failure to perform them may prej- 
 udice individuals, but this is only incidental. When, for in- 
 stance, a private claim is allowed, and its payment ordered by 
 
 iSee Place v. Taylor, 22 Ohio St. <See Moss v. Cummings, 44 Mich. 
 
 317; Rochester "W. L. Co. v. Roches- 359. 
 
 ter, 3 N. Y. 463, 53 Am. Dec. 3ie. » See Bennett v. "Whitney, 94 N. Y. 
 
 3 Fail-child T.Keith, 39 Ohio St. 156. 303; Lampert v. Laclede G. Co., 14 
 
 sPangburn v. Ramsay, 11 Johns. Mo. App. 876. 
 141. 
 
NEGLECTS OF . OFFICIAL DUTY. 147 
 
 the state, the olaiftiaut is benefited, certainly ; but the allowance 
 is made because it is for the public good that all just claims 
 upon the state should be recognized and provided for. But 
 whether such a claim be allowed or rejected, in either case it is 
 presumed that the members of the legislature performed the 
 duty imposed on them and consulted the public interest only. 
 
 The judge stands on a similar footing. Courts are created 
 to do justice between Suitors, to the end that peace and order 
 may prevail in the political society, and that rights may be 
 protected and preserved. The duty is public and the end to be 
 accomplished is public. If the judge faUs to do justice as 
 between individuals, he fails in his duty to the public and may 
 be called to account by "the state in such form and before such 
 tribunal as the law may have provided. It is a suflBcient, 
 though not the only, reason for judicial exemption from indi- 
 vidual suits that the duty neglected is not a duty to the indi- 
 vidual. 
 
 Immunity from private suits does net depend at all upon the 
 grade of the office, but exclusively upon the nature of the duty 
 A policeman, for example, is one of the lowest in grade of pub- 
 lic officers, and if by reason of his neglect of duty a breach of 
 the peace results and loss accrues to an individual, the latter 
 cannot bring him to account for his neglect. The duty imposed 
 upon the officer was a duty to the state, of which the indi- 
 vidual sufferer was only a fractional part, and incapable as 
 such of enforcing obligations which were not individual but 
 general. 
 
 If a highway commissioner declines to lay out a road which 
 an individual desires, or discontinues one which it is for his in- 
 terest to be retained, there is a damage to the individual but 
 no wrong to him. The duty performed or neglected by the 
 officer was a public duty. An individual can never be suffered 
 to sue for any injury which technically is one to the public 
 only. He must show a wrong which he specially suffered, and 
 damage alone does riot constitute a wrong.' As in case of one 
 who commits a public nuisance to the injury of an individual, 
 so in case of a highway commissioner who improperly opens 
 or discontinues a road to the prejudice of an individual, there 
 is both a public wrong and private dariiage. But there is thi& 
 ' Waterer v. Freeman,, Hob. 366. 
 
148 NEGLECTS OE OFFICIAL DUTY. 
 
 difference: the common law imposes upon every one a duty to 
 his neighbor as well as to the public not to make his premises 
 a nuisance, but the duties imposed upon the road officer in 
 laying out or discontinuing roads are only that he shall faith- 
 fully serve the public. . A failure of the officer to regard suffi- 
 ciently the interests of individuals in his official action would 
 be a breach of public duty of which the state alone could com- 
 plain.' The officer, however, becomes a trespasser by entering 
 upon lands of an individual for the purpose of laying out a 
 highway without takiag the steps required by law. 
 
 If an individual suffers from the neglect of a quarantine 
 officer, upon whom is imposed the duty by the public to pre- 
 vent the spread of contagion, he can have no redress. The 
 duty of the officer was to protect the general public without ' 
 reference to any particular individual. That the consequence 
 of the public wrong chanced to fall upon him rather than upon 
 another cannot confer upon him a remedy.^ 
 
 Recorder of deeds. — But there are offices in case of which, 
 instead of individuals being benefited by the performance of 
 public duties, the public is to be incidentally benefited by the 
 performance of duties to individuals. For example, the " re- 
 corder of deeds " is a public officer, yet in recording individual 
 conveyances and furnishing abstracts or notice from the record 
 to those who request them and tender the legal fees, he per- 
 forms duties only to individuals, tlie performance of which the 
 state is not expected to enforce. But the right to private action 
 on breach of the duty follows as of course.' The breach is an 
 individual wrong, and resulting damage must be presumed 
 whether it is or is not susceptible of proof. 
 
 The recorder commits an actionable wrong by refusing to 
 record a conveyance when it is tendered to him for recording 
 accompanied with the proper fees, or if in undertaking to re- 
 cord the deed he fails to record it accurately. lu the latter 
 case it is sometimes a difficult question, upon which the author- 
 ities are not agi'eed, as to who the party is who is wronged by 
 the recorder's mistake. The question would commonly arise 
 
 1 Sage V. Laurain, 10 Mich. 137. County Board of Health, 28 Fla. 26, 
 
 2 0gg V. Lansing, 35 Iowa, 495, 14 18 L. R. A. 549. 
 
 Am. Rep. 499; Forbes v. Escambria sgee Clark v. Miller, 54 N. Y. 638; 
 
 Keith V. Howard, 24 Pick. 293. 
 
NEGLECTS OF OFFICIAL DTJTT. 149 
 
 between the grantee in the deed which has been incorrectly 
 recorded, and some person claiming under a subsequent con- 
 veyance by the same grantor, which has been put upon record 
 while the error in the other remained uncorrected. In some 
 cases it has been held that the grantee ia the first deed is not 
 to be prejudiced by the recorder's error. It was said in one 
 case that the grantee by filing his deed for record had brought 
 himself strictly within the letter of the statute, and had per- 
 formed all that the statute in terms made requisite for his pro- 
 tection.^ A like decision was made under a statute which 
 made the deed " operative as a record " from the time it was 
 delivered by the granted for the purpose.^ 
 
 "Where this is the rule of law, it would seem that the recorder 
 could hardly be responsible in damages to the grantee unless 
 the erroneous record stands in the way of the sale by the lat- 
 ter, or in some such way actual damage should be sustained. 
 But in the case mentioned, the deed, if stiU in existence, could 
 be recorded over again on payment of the statutory fees; there- 
 fore the cost of a new record would probably be the measure 
 of recovery, if, in the meantime, nothing else had occurred to 
 endanger the title by reason of error. The question of remedy 
 would, however, be more serious if the deed were lost or de- 
 stroyed. The question of remote and proximate cause would 
 then be involved, as the danger to the grantee's title would re- 
 sult from the conjunction of two circumstances: First, the 
 error in the record; and second, the loss of the deed. 
 
 But there are also many other cases, which are planted upon 
 the statute, to the effect that every one has a right to rely 
 upon the record actually made as being correct,' and that if it 
 is erroneous the peril is upon him whose deed has been incor- 
 rectly recorded. In the leading case a mortgage of $3,000 
 was recorded for one of $300 only. The statute provided that 
 " no mortgage should defeat or prejudice the title of any iona 
 fide purchaser, unless the same should have been duly regis- 
 tered." This was construed to mean that " the purchaser was 
 
 1 Merrick v. Wallace, 19 la 486. see Chandler v. Scott, 137 Ind. 336, 
 
 See, also, Polk v. Cosgrove, 4 Biss. 10 L. R. A. 375. 
 
 437. See, however, Ritchie v. Grif- ' See Satterfleld v. Malone, 35 Fed. 
 
 iiths, 1 Wash. 439, 13 L. R. A. 384. Rep. 445, 1 L. R. A. 35. 
 
 2Mims V. Mims, 35 Ala. 33. And 
 
150 NEGLECTS OF OFEICIAL DUTY. 
 
 liot to be chafged with notice of the contents of the mortgage 
 ■ any further than they may be contained in the registry." ^ In 
 inany of the states the decisions are to the same effect.^ 
 
 Where the error of the recorder consists in indexing the con- 
 veyance incorrectly or not at aU, the effect of the error must 
 depend upon the statute and the purpose served by the index. 
 Grenerally, the purpose of the index is not to protect the inter- 
 ests of those whose conveyances are recorded, but to facilitate 
 the examination of the records by the officer ; and where such 
 is the fact, an error in the index, or a failure to index a deed, 
 would not prejudice the title of the grantee ; ' but where it is 
 required that the index shall give information of the contents 
 of the deed,. and particularly what land is, conveyed by it, the 
 record is not constructive notice of the conveyance of anything 
 which the index does not indicate.* If in a state where, by 
 statute, the grantee must see that his deed is correctly recorded, 
 the deed is so recorded that the record fails to describe the 
 land actually conveyed, and the grantor then sells his land a 
 second time to one having no knowledge of the prior convey- 
 ance, thereby cutting off the first conveyance, the first grantee 
 must be entitled to recovery against some one for the value of 
 the land. It seems clear that he might treat the second con- 
 veyance as one made in his interest,^ and recover from the 
 grantor the amount received from the second grantee. Such 
 redress might be inadequate, as the vendor, knowing that he 
 had no title, would probably be content to receive, on the sec- 
 ond sstle, less than the value of the land, and the real owner 
 might sue in tort for the value of that which he has lost.' If 
 one, knowing he has already conveyed away certain lands, gives 
 a new deed which defeats the_ first, this is a gross and palpable 
 fraud, and though, like the selling of property in market x)vert, 
 it may pass the title, it cannot protect the seller when called 
 upon by the owner to account for the property.* The questioa 
 against the recorder would in this case also be complicated as 
 
 1 Frost V. Beekman, 1 Johns. Ch. Bishop v. Schneider, 46 Nev. 472, 3 
 288. Am. Eep. 533. 
 
 2 For a collection of the decisions *See ^tna L. Ins. Co. v. Hesser, 
 under various statutes, see Ritchie 77 la. 381, 4 L. E. A. 132. 
 
 V. Griffiths, 13 L. R. A, 384, and ^Hanold v. Bacon, 36 Mich. 1. 
 "■"f^- ^ See Andrews v. Blakeslee, 13 la. 
 
 'SoheU V. Stein, 76 Pa. St. 398; 577. 
 
NEGLECTS OF OFFICIAL DUTY. 151 
 
 a question of proximate and remote cause. For injury result- 
 ing from gi"ving an erroneous certificate, the recorder is liable 
 if the giving of the certificate was an official act, otherwise 
 not. It was an official act if the person obtaining it had a 
 right to it and which it was the recorder's duty to give} 
 One is entitled to correct copies from the records and to offi- 
 cial statements of what appears thereon, but is not entitled to 
 call upon the recorder for a certificate that a particular title is 
 good or bad: such certificate, if given, would not be official. 
 If a recorder owes to every one who may have occasion to rely 
 upon his records the duty to see that they are correctly made, 
 is it also his duty to every one who may kave occasion to rely 
 upon his official certifiaates to see that they are correct also ? 
 There is this difference between the two cases : The records 
 are for general and public inspection, and are required to be 
 kept that aU persons may have, by means of them, accurate 
 information concerning the titles ; while the gi"\'ing of a certifi- 
 cate respecting something recorded is a matter between the 
 recorder and the person calling for it, and legally concerns no 
 one else. The recorder contracts with the person who requests 
 and pays for it to give a certificate which shall state the facts ; 
 but he enters into no relation of contract or otherwise in re- 
 spect to it with any other person. He is therefore responsible 
 only to the party procuring his certificate, though another 
 may have acted iu reliance upon it and been injured by his 
 error.^ The recorder may also be responsible for recording 
 papers not entitled to record, as a forged paper; provided the 
 record when made may cause a legal injury, and provided fur- 
 ther he is aware that the record is unauthorized.' Perhaps 
 the recorder would also be liable if he' knowingly put upon 
 record a deed purporting to be acknowledged before the proper 
 officer, when in fact the person purporting to take the ac- 
 knowledgment was not an officer at all. 
 
 Inspectors of provisions. — The requirement of inspection 
 of provisions is important not only to the public as a sanitary 
 regulation, but also to individual purchasers, who, if they are 
 
 1 See Van Schaick v. Sigel, 60 How. 2 Hoiiseman v. Girard Bldg. etc. 
 Pr. laa Ass'n, 81 Pa. St. 256. 
 
 s Ramsey v. Riley, 13 Ohio, 157. 
 
152 NEGLECTS OF OEFICIAI, DTTTT, 
 
 betrayed by reliance upon it, may have their action against 
 the inspector.^ 
 
 Postmasters. — The postmaster-general is charged with du- 
 ties exclusively public and is not liable for the neglect of 
 duty of any officer or agent of the postoffice.^ But the local 
 postmaster unquestionably has imposed upon him duties to 
 individuals as well as to the public. In respect to mail matter 
 received at his office for delivery, a duty is fixed upon him in 
 behalf of the several persons to whom each letter, paper or 
 parcel is directed. "When the proper person calls for what 
 there is for delivery the postmaster must deliver it, and his re- 
 fusal to do is a tort.' The postmaster is also liable to the per- 
 son entitled to it for the loss, through his own carelessness, or 
 that of any of his clerks or servants, of any letters or other 
 mail matter which shall have come to his official custody.^ But 
 the postmaster is not liable for the loss or abstraction of the 
 letter by one of his sworn assistants, whose appointment must 
 be approved and can at any time be terminated by the depart- 
 ment.' A mail carrier is responsible for the loss of mail matter 
 by his own servant or any unsworn assistant,* but not if the 
 loss occurs through the carelessness or dishonesty of a sworn 
 assistant.'' 
 
 The clerk of a court may be liable to the party damnified 
 for neglecting to put a case on the docket when his duty re- 
 quires it;' for failure to enter up a judgment upon the roH;* 
 for wrongfully approving of an appeal bond, the penalty in 
 which was less than that required by law;^" and for any simi- 
 lar misfeasance or nonfeasance." So a highway commissioner 
 is liable who neglects to return as paid a highway tax which 
 has been paid in labor.'^ So is the supervisor who, being re- 
 quired by law to report a claim to the county board for allow- 
 ance, neglects to do so." A commissioner of customs is hable 
 
 1 Hayes v. Porter, 23 Me. 371. 6 Sawyer v. Corse, 17 Gratt. 230. 
 
 2 See Lane v. Cotton, 1 Ld. Raym. "Hutchins v. Brackett, supra. 
 616; Hutchins v. Brackett, 23 N. H. ^Brown v. Lester, 31 Miss. 393. 
 353, 53 Am. Dea 248. 9 Douglass v. YaUop, Burr. 732. 
 
 STeall V. Felton, 1 N. T. 537, 13 w Billings v. Lafferty, 31 IlL 318. 
 
 How. 284 11 See Wright v. Wheeler, 8 IrecL 
 
 < Bishop V. Williamson, 11 Me. 495; 184 
 
 Christy v. Smith, 33 Vt 663. 12 Strickf aden v. Zipprick, 49 IlL 286. 
 
 5 Schroyer y. Lynch, 8 Watts, 458. " Clark v. Miller, 54 N. T. 53a 
 
NEGLECTS OF OFFICIAL DUTY. 153^ 
 
 to an importer for refusing to sign a bill of entry except upon 
 payment of excessive fees.^ And an election inspector may be 
 liable for refusal to receive a vote for an elector. 
 
 A sheriff owes duties to the individuals as well as to the 
 public, and so far as he acts as a peace oiiicer and not in the- 
 service of a criminal process, individuals are concerned only 
 that he shall commit no trespass upon them or their property. 
 In the service of a civil process, however, th'e sheriff is charged 
 with duties only to the party to the proceedings. Thus he is 
 liable to the plaintiff for refusal or neglect to serve process or 
 want of diligence in service ; ^ for the escape of a defendant who^ 
 was lawfully arrested on civil process, either mesne or final ; * 
 for neglect or refusal tb return process ; * for making a false 
 return ; ' for negligently caring for goods whereby some of them 
 are lost ; * for neglect to pay over moneys collected,' and the- 
 hke. The rules applicable to the case of a constable are the- 
 same. 
 
 The same act or neglect may sometimes afford ground for an 
 action on behalf of each party to the writ. If the officer has 
 levied upon property, he owes to each party a duty to keep 
 the property with reasonable care, and there is a breach of 
 duty to each when he fails to do so.' 
 
 "Wrongs to the defendant in the process are committed either 
 by the service upon him of process issued without authority or 
 otherwise void, or by disregard of some privilege the law gives 
 him, or by abuse of the process in service. An important pro- 
 vision of law in the interest of the. defendant is that which ex- 
 empts from levy on execution or attachment certain specified 
 property of which he may be the owner. In some states this 
 exemption is a mere privilege, and will be waived if not 
 claimed; but in others the law absolutely exempts the property,, 
 and the officer wiU be a trespasser if he proceeds in disregard 
 of the provisions of law, which require him to take steps to 
 have the property set apart for the debtor even though the- 
 
 1 Barry v. Amaud, 10 Ad. & EL = State v. Finn, 87 Mo. 310. And 
 646. see State v. Case, 77 Mo. 347. 
 
 2 Howe V. White, 49 Cal. 658. « Burns v. Lane, 138 Mass. 850. 
 
 3 Browning V. Eittenhouse, 38 N. J. 'Norton v. Nye, 56 Me. 211; Nash» 
 
 379. See Shattuck v. State, 51 Miss. v. Muldoon, 16 Nev. 404 
 
 575.- 8 Abbptt V. Kimball, 19 Vt. 551, 4T 
 
 « State V. Schar, 50 Mo. 393. Am. Dec. 708. 
 
154 NEGLECTS OF OFFICIAL DUTY. 
 
 debtor remains passive.' A defendant under arrest is, in every 
 ™case, to be treated with ordinary humanity^ and any unneces- 
 sary severity could not be justified by the writ. It would be 
 an abuse of process if the officer, having an execution against 
 -the property, should himself become purchaser of the goods 
 sold under it,^ or if he should make sale without giving the no- 
 tice required by law,' or if he sells more than is sufficient to 
 ■satisfy the demand and costs.* 
 
 The sheriff lays himself liable if on execution against one 
 person he by mistake seizes the goods of another. Ownership 
 is matter of fact, and the functions of the sheriff in deciding 
 -upon the fact who the owner is, are not judicial. No ques- 
 tion is referred for solution to the judgment or discretion of 
 the officer himself. A judicial officer must follow his judg- 
 ement; but the sheriff in levying upon the goods of a named 
 person obeys the exact Comniand, and even if there are others 
 In the neighborhood having the same name as the defendant 
 in the writ, the sheriff mustj at his peril, ascertain who the 
 real defendant is, and make service upon him.^ The sheriff, in 
 -seizing property upon his writ, must always recognize, and 
 ^;ake in subordination to, mortgages or mechanics' hens or any 
 other liens that may exist against the property. And any- 
 ihing that he may do prejudicial to the existing liens is wrong-' 
 ^ul.« 
 
 It is the general rule that the sheriff is responsible for the 
 misfeasance or nonfeasance of his deputies; but where the 
 •deputy is employed to do something because of the office which 
 the law does not require the sheriff officially to perform, he 
 is a mere private agent, for whose conduct the sheriff is not 
 responsible. This is the case where a deputy is employed to 
 serve a distress warrant,'' or to foreclose a chattel mortgage 
 by seizing the property.' 
 
 1 On this question reference must * Stead v. Gascoigne, 8 Taunt. 527. 
 toe had to the various statutory 'See Screws v. Watson, 48 Ala. 
 provisions and the decisions under 628; Jarmain v. Hooper, 6 M. & G. 
 -them. See Smyth on Homestead & 837. See, also, Wonderlich v. Walker 
 Exemptions, ch. XIV; Waples on (Neb.), 60 N. W.Eep.l03; Thomas v. 
 Homestead & Exemptions, p. 779 Markman (Neb.), 62 N. W. Eep. 306. 
 ■etseq. 6Hobart v. Frisbie, 5 Conn. 593; 
 
 2 Gilbfirson v. Wilber, 3 N. J. 312. Worthington v. Hanna, 33 Mich. 530. 
 
 3 Hayes v. BuzzeU, 60 Me. 205; 'Moulton v. Norton, 5 Barb. 286. 
 «heehy v. Graves, 58 Gal 449. 8 gee Dorr v. Mickley, 16 Minn. 20. 
 
NEGLECTS OF OFFICIAL DUTY. 155 
 
 The sheriff is not liable to the plaintiff for acts of the 
 deputy which the plaintiff himself or his attorney directed or 
 advised, or in respect to which they gave discretionary au- 
 thority to the deputy, within which he confined his action ; ^ 
 as where, by consent of the plaintiff, the deputy gave credit 
 on an execution sale.^ 
 
 A notary public is liable to the extent of any injury result- 
 ing from his failure to discharge faithfully the official duty 
 undertaken on request of a party concerned ; as where com- 
 mercial papers are delivered to him for protest and notice to 
 the iudorsers;' or where he undertakes to certify to the ac- 
 knowledgment of a conveyance.* 
 
 Officers whose duties require them to levy a tax to satisfy 
 a judgment and who refuse or neglect to do so, though com- 
 manded to proceed by competent or judicial authority, are lia- 
 ble to the judgment creditor for their failure. " Where the 
 law requires absolutely a ministerial act to be done by a public 
 officer, and he neglects or refuses to do such act," he is hable 
 to the extent of the resulting injury.' 
 
 Want of means to perform a duty. — Where a ministerial 
 officer is charged with a duty which is only performed by an 
 expenditure of public funds, he cannot be in fault unless the 
 funds are provided for the purpose, or unless, by virtue of his 
 office, he may raise the necessary means by levying a tax, or in 
 some other mode. He wHl be responsible, however, to parties 
 injured by his neglect where the funds are at his command. 
 The superintendent of canal repairs who neglected to perform 
 his duty has been held liable to parties who were prevented 
 from making use of the canal, or delayed in its use in conse- 
 quence.* So commissioners who have charge of cutting and 
 keeping open public drains, while they owe- no duty to an in- 
 
 1 Strong V. Bradley, 14 Vt. 55; De executing a will, substitutes lan- 
 Moranda v. Dunkin, 4 T. E. 119. guage of his own choice instead of 
 
 2 Gorham v. Gale, 7 Cow. 739. observing the legal formalities, he is 
 
 3 Bowling V. Arthur, 34 Miss. 41. liable to a legatee to whom loss 
 * Henderson v. Smith, ?6 W. Va. results thereby. Weintz v. Ki'amer, 
 
 839, 53 Am. Eep. 189. In Louisiana, 44 La. Ann. 35. 
 
 by statute, the liability of a notary 'Amy t. Supervisors, 11 Wall. 136. 
 
 extends to others than those who ^ Adsit v. Brady, 4 Hill, 630, 40 Am. 
 
 actually employ him; and it has Dec. 305. 
 
 there been held that if a notary, in 
 
156 NEGLECTS OF OFFICIAL DUTY. 
 
 dividual in respect of cutting tlie drains, yet will be liable after 
 the drains are once cut, if they suffer them to become ob- 
 structed to the injury of neighboring lands, when they have 
 the means at their command for keeping them open.^ 
 
 Highway officers. — There has been some discussion as to 
 whether an officer who has charge of the duty of making and 
 repairing highways and public bridges owes this duty to indi- 
 viduals using the public way or to the public only. Several 
 states follow an early ISTew Tork case where it was decided that 
 the action would not lie against the overseer of 'highways at the 
 suit of the party injured in consequence of a bridge within his 
 jurisdiction being out of repair, and that the duty of repair was a 
 duty to the public, not to individuals.^ Later New Tork cases, ' 
 however, hold commissioners of highways responsible for in- 
 juries caused by their neglect to keep the public ways in repair, 
 provided they have the means of doing so. The reason for the ' 
 adoption, of this rule is laid down in a leading case : " Defective 
 bridges are dangerous, and travelers generally have no means 
 of kncfwing whether they are safe or not. They have to rely 
 upon the fidelity and vigilance of the highway commissioners, 
 who are the only persons whose duty it is to see that the 
 bridges are in repair." ' Under the statutes in ISTorth Caro- 
 lina a similar liabihty exists.* 
 
 De facto officers. — What has been said respecting the disa- 
 bility of officers wiU apply to those who are such de facto only 
 as weU as to those who hold the office of right. Indeed, so far 
 as one has actually exercised the functions of a public officer, 
 he would be estopped to deny, for the purpose of escaping lia- 
 bility, that he was properly fiUing it.' And his abandonment 
 of the office would not excuse Tiitti from liabilities already 
 incurred. 
 
 1 Child V. Boston, 4 Allen, 41, 81 s Hover v. Barkhoof, 44 N. Y. 113, 
 Am. Dec. 680. 135. 
 
 2 Bartlett v. Crozier, 17 Johns. 449, * Hathaway v. Hinton, 1 Jones, 
 8 Am. Dec. 438. See McKenzie v. 343. See County Com'rs v. Gibson, 
 Chovin, 1 McMul. 323; Lynn v. Ad- 86 Md. 229. 
 
 ams, 2 Ind. 143; Dnnlap v. Knapp, 14 » See BiUingsley v. State, 14 Md. 
 Oliio St. 64; McConnell v. Dewey, 5 369; Trescott v. Moan, 50 Me. 347. 
 Neb. 385. 
 
CHAPTER XIY. 
 
 IMMUNITY OF JUDICIAL OFFICERS. 
 
 As a general rule in case of official duties wMoh are public 
 in their nature, though in their discharge especially affecting 
 individuals, the time, manner and extent of the performance 
 of which are left to the wisdom, integrity and judgment of the 
 officer himself, the only liability of the officer is to the criminal 
 law in case he shall wrcJagf ully and ma(liciously neglect to per- 
 form his duties or shall perform them improperly. Duties of 
 this nature are usually spoken of as duties in the exercise of 
 discretionary and judicial powers, and it is deemed a conclusive 
 answer to any private action for an injury resulting from neg- 
 lect or unfaithful performance to say that, where a matter is 
 trusted to the discretion or judgment of an officer, the very 
 nature of the authority is inconsistent with the responsibility 
 in damages for the manner of its exercise, since to hold the offi- 
 cer to such responsibility would be to confer a discretion and 
 make its exercise a wrong.' If it is said that there can be no 
 demonstration as to the real motives of an official, this does 
 not mean that it is impossible for the law to investigate the 
 fact. The state may call to account for misconduct oificials of 
 even the highest station, and they cannot put aside the charge 
 by pleading that their duties were discretionary or judicial, 
 and by denying the competency of the state to look into their 
 breasts and make demonstration that their motives were not 
 pure and their purposes not honest. It is not, therefore, a 
 mere difficulty of an inquiry into the facts that precludes civil 
 KabiMty to the party who has been injured by a neglect of ju- 
 dicial duty or an abuse of discretion. The reasons must be 
 sought in the desirability of shielding the judicial officer 
 against harassing litigation at the suit of those who may be 
 displeased with his action, and in the interest of the general 
 pubHo. 
 
 1 See remarks of Lord Ch. J. North 1063, 1099. See, also, EandaU v. Brig- 
 in Bamardiston v. Soame, 6 St. Tr. ham, 7 WaU. 533. 
 
158 iMiniKriTY of judicial officees 
 
 As to the interests of the judge: No , other ground can be- 
 conceived for holding the judge responsible to the defeated 
 party for his action than one of these : First, that by a wrong 
 judgment where duty required of him a right judgment, he 
 has inflicted injury; or second, that he has done wrong by not 
 making use of his honest judgment, but .allowing passion or 
 prejudice to control his actions. If ow no man fit for the posi- 
 tion and having anything either of property or reputation ta 
 put at stake would consent to occupy a judicial position if, at 
 the peril of his fortune, he must justify his judgments to the 
 satisfaction of a jury summoned by a dissatisfied litigant to re- 
 view them. Nor would the protection be sensibly greater if 
 his liahiUty were to depend upon a showing of bad motives* 
 " Just in proportion to the strength of his conviction of the cor- 
 rectness of his own view of the case i^ he (the losing party) apt 
 to complain of the judgment against him, and from complaints 
 of the judgment to pass to the ascription of improper motives 
 to the judge. "When the controversy involves questions affect- 
 ing large amounts of property, or relates to a matter of general 
 public concern, or touches the interests of numerous parties, 
 the disappointment occasioned by an adverse decision often 
 finds vent in imputations of this character, and, from the im- 
 perfection of human nature, this is hardly a subject of wonder. 
 If civil actions could be maintained in such cases against the 
 judge because the losing party should see fit to allege in his 
 complaint that the acts of the judge were done with partiality, 
 or maliciously or corruptly, the protection essential to judicial 
 independence would be entirely swept away." ^ 
 
 The following may be assigned as reasons why the public 
 interests could not suffer such a suit to be brought: 
 
 1. The necessary result of the liability would be to occupy 
 the judge's time and mind with the defense of his own inter- 
 ests, when he should be giving them up wholly to his pubhc 
 duties, thereby defeating to some extent the very purpose for 
 which his ofBLce was created. 
 
 2. The effect of putting the judge on his defense as a wrong- 
 doer necessarily is to lower the estimation in which his office 
 is held by the public, and any adjudication against him lessens 
 the weight of his subsequent decisions. The confidence and 
 
 1 Field, J., in Bradley v. Fisher, 13 WaU. 348, 
 
IMMTJNITT OF JUDICIAL OFFICERS. 159' 
 
 respect of the people for the government will always repose- 
 most securely on the judicial , authority when it is esteemed, 
 and must always be unstable and unreliable when this is not 
 respected. If a judge were forced upon his defense it " would 
 tend to the scandal and subversion of all justice, and those who- 
 are most sincere would not be free from continual calumnia- 
 tions." ^ 
 
 3. The civil responsibility of the judge would often be an 
 incentive to dishonest instead of honest judgments, and would 
 invite him to consult public opinion and public prejudice when 
 he ought to be whoUy above and uninfluenced by them. As 
 every suit against him would be to some extent an appeal tO' 
 popular feeling, a judg§, caring especially for his owU protect 
 tion rather than for the cause of justice, could not well resist a 
 leaning adverse to the parties against whom the popular pas- 
 sion or prejudice for the time being was running, and he would 
 thus become a persecutor in the cases where he ought to be a- 
 protector, and might count with confidence on escaping re- 
 sponsibility in the very cases in which he ought to be punished, 
 
 4. Such civil responsibility would constitute a serious ob-^ 
 struction to justice, in that it would render essential a large- 
 increase in the judicial force, not only as it would multiply liti- 
 gation, but as it would open each case to endless controversy. 
 The interest of the public in general rules and in settled order 
 is vastly greater than any results which affect only individuals. 
 Courts are for the general benefit rather than for the indi- 
 vidual, and it is more important that their action shall tend tc 
 the peace and quiet.of society than that at the expense of ordery, 
 and after many suits, they shall finally punish an officer with 
 damages for his misconduct. 
 
 5. But where the judge is really deserving of condemnation, 
 a prosecution at the instance of the state is a much more effect- 
 ual method of bringing him to account than a private suit. His. 
 delinquencies may be perfectly capable of being shown, and 
 yet not be made so apparent by the facts of any particular 
 case that in a trial ' confined to those facts he would be con- 
 demned. It may be necessary to show the official action for 
 years. In a private suit the party would be confined to the- 
 facts of his own case; but where an officer is impeached, the-. 
 
 • Floyd V, Barker, 12 Coke, 35, quoted in Bradley v. Fisher, 13 WalL 349. 
 
160 IMMtrNITT OF JTTDICTATi OFPIOBES. ; , 
 
 whole official career may be gone into, one deliiiquency after 
 xinother is perhaps shown, and, each tending to characterize 
 the other, the whole wiU enable the triers to form a just opin- 
 ion of the official integrity. 
 
 When, therefore, the state confers judicial powers upon an 
 individual, it says to him in effect that these duties are confided 
 to his judgment, which he is to exercise fully and freely, with- 
 out favor a,nd without fear; that the duties, though they con- 
 ■cern individuals, concern more especially the welfare of the 
 state, and the peace and happiness of society ; that if he shaU 
 fail in the faithful discharge of them, he shall be called to ac- 
 -cbunt as a criminal; but that in order that he may not be an- 
 noyed, disturbed and impeded in the performance of these high 
 functions, a dissatisfied individual shall not be suffered to call 
 in question his official action in a suit for damages. 
 
 This rule applies to the highest judge in the state or nation,' 
 and also to the lowest officer who sits as a court and tries petty 
 ■causes ; ^ ,and it applies not in respect to their judgments merely, 
 but to aU process awarded by them for carrying their jjidg- 
 ments into effect.' 
 
 The rule extends also to military and naval officers in exer- 
 cising their authority to order courts-martial for the trial of 
 their inferiors, or in putting their inferiors under arrest pre- 
 liminary to trial, and no inquiry into their motives in doing so 
 can be suffered in a civil suit.* It extends also to grand and 
 petit jurors in the discharge of their duties ; ' to assessors on 
 whom is imposed the duty of valuing property for the purpose 
 •of a levy of taxes ; * to commissioners appointed to appraise 
 damages when property is taken under the right of eminent 
 domain ; ^ to officers empowered to lay out, alter and discon- 
 tinue highways ; ' to highway officers in deciding that a person 
 claiming exemption from a road tax is not in fact exempt," or 
 
 1 Dicas V. Lord Brougham, 6 C. & Dawkins v. Lord Eokeby, 4 F. & F. 
 
 P. 349; Yates v. Lansing, 5 Johns. 808. 
 
 282, 9 Johns. 395, 6 Am. Deo. 290; 5 Hunter v. Mathis, 40 Ind. 356; 
 
 Bradley v. Fisher, 13 Wall. 335. Turpen v. Booth, 36 CaL 65. 
 
 2Mostyn t. Fabrigas, Cowp. 161, 1 « Weaver v. Devendorf, 3 Den. 117. 
 
 Sm. L. C. 1027; Stewart v. Hawley, See Cooley on Taxation, 551-557. 
 
 31 Wend. 552; Jordan v. Hanson, 49 ^Van Steenbergh v. Bigelow, 3 
 
 N. H. 199, 6 Am. Eep. 508; Atwood Wend. 42. 
 
 V. Atwater (Neb.), 61 N. W. Eep. 574 s gage t. Laurain, 19 Mich. 137. 
 
 ' Dicas Y. Lord Brougham, supra. ' Harrington v. Com'rs, etc., 3 Mc- 
 
 < Sutton V. Johnstone, 1 T. E. 493; Cord, 400. 
 
IMMUNITY OF JUDICX4X OFFICEKS. 161 
 
 that one arrested is in default for not ha^dng worked out the 
 assessment ; * to membei"s of the tpwn board in deciding upon 
 the allowance of claims.^ 
 
 In the case of that class of officers who do not hold courts, 
 but exercise what is called j?*!!**- judicial power, there are many 
 <5ases which hold that such officers are Mable if they act mali- 
 ciously to the prejudice of individuals.' Thus it is said that 
 the members of a school board may be held responsible for the 
 dismissal of a teacher, if they act maliciously and without 
 cause;* and a county clerk for wiLfuUy and maliciously approv- 
 ing an insufficient appeal bond.' 
 
 Whether the officers having charge of elections and of the pre- 
 liminary registration and other pjjoceedings shojild be shielded 
 by the same immi»iity that protects judicial officeus in general 
 is a disputed question. In the leading case of Ashhy v. White^ 
 the returning officer who refused to admit a qualified elector 
 to vote was held liable in damages at his suit. And this ruling 
 was followed in Massachusetts, in an early case, in whic^ the 
 <30urt planted their conclusion on the ground of state neces- 
 sity and the preservation of free institutions,' If any officer 
 denies or obstructs the liberty of the ballot, upon Avhich eur 
 institutions rest, he takes away a privilege valuable to the 
 possessor and necessary to the country ; and whether he does 
 this by mistake or from malice he should bear the conse- 
 quences. 
 
 Itt -other states this doctrine is denied and inspectors of elec- 
 tion are put upon the footing of quusi-yidiciai. officers and are 
 protected when they act within the limits of gqod faith,* but 
 are made to r^pond in damages when they maliciously deny 
 the voter's right. In one case the court, after noting that the 
 decisions referred to above rest upon the principle that a party 
 who has been deprived of a right is thereby injured and must 
 have a remedy, said : " In one sense, if he is a legal voter he has 
 
 1 Freeman v. Cornwall, 10 Johns. ^ Ld. Eaym. 938. 
 
 470. ' Lincoln v. Hapgood, 11 Mass. 350. 
 
 2WaUv. Trumbnll,16Mich.228. To the same effect, see Jeffries v. 
 
 »Hoggattv.Bigley,6Humph.336; Ankeny, 11 Ohio, 373; Monroe v. 
 
 McDaniel v. Tebbetts, 60 N. H. 497; Collins, 17 Ohio St. 665; Long v. 
 
 Williams v. Weaver, 75 N. Y. 30. Long, 57 la. 497. 
 
 < Bennett v. Fulmer, 49 Pa. St. 155. » See Isaacs v. McNeil, 44 Fed. Eep. 
 
 5 Billings T. Lafferty, 31 HI 318. 33, 11 L. E. A. 354 
 11 
 
162 niMUNITT OF JITDICIAL OFFICEES. 
 
 the right to vote and is injured if deprived of it; but the law- 
 has appointed a means whereby his vote is decided, and for the' 
 purpose has provided judges to determine that question, and has- 
 also provided a most careful guaranty for a proper discharge- 
 of their duties by the judges, by the mode of their selection 
 and their oath of office. In aU governments power and trust 
 must be reposed somew^here ; all that can be done is to define- 
 its limits and provide means for its proper exercise. "When the- 
 act in question is that of a judicial officer, all that the law can 
 secure is that they shall not, with impunity, do wrong wilfully,, 
 fraudulently or corruptly. If they do so act they are Hable' 
 both civilly and crimihally, but for an error of judgment they 
 are not liable either civilly or criminally. If the citizen has- 
 had a fair and honest exercise of judgment by a judicial officer 
 in his case, it is all the. law entitles him to, and although the* 
 judgment may be erroneous, and the party injured, it iBdcrninum 
 absque injuria, for which no action lies." ' The principle ap- 
 plies as well to the officers who have charge of the registration 
 of voters, preliminary to an election, as to the judge or inspect- 
 ors who receive the ballots. 
 
 In some states, if the right to vote is questioned, an oath 
 which embraces the several requisites of qualification is ten- 
 dered to the voter, and if he wiU take this, and thus give evi- 
 dence that he answers all the conditions, he must be registered 
 for voting, if registration is required, and his baUot must be re- 
 ceived when offered. Whenever the law thus makes a man the 
 final judge of his own right, the election officers have only a 
 ministerial duty to perform^ and they are responsible, as in. 
 other cases of ministerial duties, for refusal to receive the vote 
 if the oath is taken.' 
 
 Necessity of jurisdiction. — A judge is not such at aU times 
 and for all purposes ; if he acts without jurisdiction he is but, 
 the individual falsely assuming an authority he does not possess.*" 
 The officer is judge in the cases in which the law has empow- 
 ered him to act, and in respect to persons lawfuEy brought 
 
 iBevard v. Hoflfman, 18 Md. 479, 2 Spragins v. Houghton, 3 III 377; 
 
 483. To the same eflfect are the Gillespie v. Palmer, 20 Wis. 544;. 
 
 following decisions: Goetoheus v. People v. Gordon, 5 CaL 285. 
 
 Matthewson, CI N. Y. 420; Fansler 3 Further, on this question, see- 
 
 V. Parsons, 6 W. Va. 486, 20 Am. Rep. cjases cited in vote to Austin v. Vroo- 
 
 431. man, 128 N. Y. 329, 14 L. R. A, 138. 
 
iMMUsrrT or judicial officers. 163 
 
 before him; but he is not judge when he assumes to decide 
 cases of a class which the law withholds from his cognizance, 
 or cases between persons who are not either actually or con- 
 structively before him for the purpose. And if, being empow- 
 ered to enter one judgment or make one order, he enters or 
 makes one wholly different in nature, he is as much out of the 
 protection of the law in respect to the particular act as if he 
 held no office at all.* 
 
 Jurisdiction in a judge may be defined as the authority of 
 law to act officially in the matter then in hand. Most of the 
 officers who exeixjise an inferior authority have no jurisdiction 
 at all until certain preliminary action has been taken which is 
 particularly pointed out by statute, and in their case, as well as 
 in the case of the inferior courts, it must appear from their 
 written records that the circumstances existed which author- 
 ized them to act.* In favor of the action of the superior courts, 
 however, to which vast interests and general powers are con- 
 fided, it will be intended that they have acted with full juris- 
 diction, and that they have assumed to do nothing that the 
 law does not sanction.' 
 
 The jurisdiction of an inferior court must appear by the rec- 
 ord itself. A warrant issued by a magistrate for a seizure of 
 goods cannot be upheld unless in its recitals it shows authority 
 in the magistrate to issue it.* But where the facts alleged be- 
 fore a magistrate are sufficient to give him jurisdiction and he 
 proceeds upon them, to judgment and execution, his right to 
 exemption from liabiKty cannot be affected by the truth or 
 falsity of these facts, or the sufficiency or insufficiency of the 
 evidence adduced for the purpose of establishing them.' 
 
 In the case of some officers the jurisdiction cannot depend 
 upon record, but must rest in the knowledge of witnesses, as 
 in the case of an assessor, whose jurisdiction to impose a per- 
 
 iCase of Marshalsea, 10 Co. 68; Shufeldt v. Buckley, 45 la 323; Tay- 
 
 Yates V. Lansing, 5 Johns. 383; lor v. Bruscup, 27 Md. 219. 
 
 Palmer v. Carroll, 34 N. a 314; Craig * Newman v. Earl of Hardwicke, 8 
 
 V. Burnett, 33 Ala. T28. Ad. & E. 133; McClure v. Hill, 36 
 
 2 1 Saund. 74; Parsons v. Loyd, 3 Ark. 368. 
 
 Wils. 341; Estopinal v. Peyroux, 37 5 Cave v. Mountain, 1 M. & G. 257; 
 
 La. Ann. 477. Shoemaker v. Nesbit, 3 Rawle, 301: 
 
 ' Clark V. Holmes, 1 Doug. (Mich.) Connelly v. Woods, 31 Kan. 359. See 
 
 390; Sears v. Terry, 36 Conn. 373; on this subject notes to Crepps v. 
 
 Durden, 1 Sm. L. C. 911, 
 
164 IMMUNITY OF JUDICIAL OFFICERS. 
 
 sonal tax may depend upon the fact of r'esidence, of which no 
 record exists. But where an officer is to proceed upon evidence 
 in writing, and the statute points out what this evidence shall 
 be, it intends that it shall be found of record in the proper 
 office, and not that important public matters shall be left to 
 uncertain parol testimony.' 
 
 When inferior courts or judicial officers act without jurisdic- 
 tion the law can give them no protection whatever. But the 
 rule has been held to be otherwise in the case of judges of the 
 superior courts who exceed their authority.'' The reason of 
 this distinction in favor of the judge, who, from his higher 
 position and presumed superior ability and learning, ought to 
 be most free from error, is probably found in this : that a lim- 
 ited authority is conferred upon the inferior judicial officer, 
 and he best observes the spirit of the law by solving aU ques- 
 tions of doubt against his jurisdiction. If he errs in this, direc- 
 tion no harm is done, because he can always be set. right by 
 the court having appellate authority over him, and he can have 
 no occasion to take hazards so long as his decision is subject 
 to review. Moreover, the presumptions of law are always 
 against the rightfulness of any authority in an inferior eonrt 
 which under the law appears doubtful. When a grant of gen- 
 eral jurisdiction is made, however, a presumption accompanies 
 it that it is to be exercised gener-ally until an exceptioa ap- 
 pears which is clearly beyond its intent. 
 
 If the magistrate or officer is interested in the result of 
 the suit and has assumed'to sit or act in his own case, or in 
 that of one of his near relatives, in whose case he Avould be dis- 
 qualified to sit as a juror, the law affords, him no protection. 
 His action imder such circumstances is a mere nuUity,' and, in 
 general, if he is complainant or moving party in a prosecaition 
 
 1 Cardigan v. Page, 6 N. H. 183; Stockwell v. White Lake, 23 Mich. 
 Moser v. White, 39 Mich. 59. 341j BedeU v. Bailey, 58 N. H. 63; 
 
 2 Bradley v. Fisher, 13 Wall 335; Matter of Ryers, 73 N. Y. 1. For a 
 Lange v. Benedict^ 73 N. Y. 13, 29 discussion of this question and an 
 Am. Eep. 80; Grove v. Van Duyn, 44 extensive citation of cases, see Fow- 
 N. J. L. 654 43 Am. Rep. 413. ler v. Brooks, 64 N. a 423; Moses v. 
 
 ' JVeww debet esse judex in propria Julian, 45 N. a 53, 84 Am. Dea 114, 
 
 sua causa. See Dimes v. Proprietor, and not6; Horton v. Howaid, 79 
 
 etc. Grand Junction Canal, 3 H. L. Mich. 643, 19 Am. St. Eep. 198; 
 
 Cas. 787, 16 Eng. L. & Eq. 63; HaU Hughes' Tech. of Law, 138. 
 V. Thayer, 105 Mass. 319. And see 
 
IMMUNITY OF JUDICIAL OFFICEES. 165 
 
 or proceeding, he cannot act in deciding it.^ But to this rule 
 there are exceptions, of which the following are instances : A 
 jnstiee of the peace may of his own motion call upon a party 
 to answer to a contempt of his authority committed in his pres- 
 ence, and may proceed to hear and dispose of the case. And 
 if a felony or breach of the peace is committed in his presence, 
 he may at once deal with the case without complaint being 
 entered. And where township or other municipal boards are 
 empowered to pass upon all municipal claims, the interest 
 of the members does not preclude their passing upon their 
 own among the rest. But any authority conferred upon such 
 board will be strictly construed, and power to adjudge upon 
 their own claims will*not be held included unless iif is very 
 clearly conferred.- In the case of legislative bodies of all 
 grades their action cannot be held invalid because of the inter- 
 est of the legislators in the subject-matter in which they have 
 acted. Administrative officers also, such as assessors of taxes, 
 sometimes act from the necessity of the case where their own 
 interests are involved, if the law admits of no other course. 
 
 The judicial function can never be delegated by officers of 
 any grade.' 
 
 Contempts of authority . — The jurisdiction to punish for 
 contempt of authority should be exercised with caution, for the 
 reason that the judge is also the accuser, and when he punishes 
 is dealing with conduct which is contemptuous of his own 
 authority and perhaps insulting to himself. A contempt of 
 authority exists when one is guilty of conduct which directly 
 tends to prevent or impede the performance of public duty by 
 a competent tribunal then in session or about to convene for 
 the purpose.* The power to inflict summary punishment is 
 
 1 See Limerick v. Murlatt, 43 Kan. ^ ggg Kennedy v. Gies, 25 Mich. 
 
 318. As to when a judge is disquali- 83. 
 
 fled hy interest, see Ex parte Harris, ^ State v. Noble, 118 Ind. 350, 10 
 26 Fla. 77, 23 Am. St. Bep. 548, and Am. St Rep. 143. One who assumes 
 cases in note. In many states, by to act by delegation can perform 
 statute, a judge is prohibited from only nugatory acts. Andrews v. 
 sitting in a cause with which he has Harris, 1 Q. B. 3; Van Sly ke v. In- 
 been connected as attorney. For a surance Co., 39 Wis. 390, 20 Am. 
 discussion of the decisions under Rep. 50; State v. Jefferson, 66 N. C. 
 such statutes, and the decisions 309. 
 
 apart from statutes on the subject, *See State v. Kaiser, 20 Oreg. 50, 
 
 see State ex reL Ambler v. Hocker 8 L. R. A. 584, and note. 
 (Fla.), 25 L. R. A. 114, and note. ■ 
 
■166 maruNiTY of judicial officees. 
 
 ■inherent in each house of the legislative department,' but can- 
 not be delegated to committees.? Inferior bodies with inferior 
 legislative powers, such as municipal councils, boards of super- 
 visors, etc., cannot punish for contempts.' 
 
 The power to punish for contempts is granted as a necessary 
 incident in establishing a tribunal as a court.* It is therefore 
 possessed by courts of justices of the peace.* 
 
 In the punishment for contempt jurisdiction must exist as in 
 aU other cases. If the punishment is imposed by a court of 
 general jurisdiction, it will be presumed that it acted within 
 the limits of its authority, and that its judgment is warranted 
 by the law and by the facts.* But in the case of a court of 
 special or limited jurisdiction the record must show that the 
 party is convicted of conduct which in the law constituted a 
 contempt of court ; '' and the process issued in the execution of 
 the judgment of the court will be void if it fails to show by its 
 recitals that misconduct is charged which prima facie consti- 
 tuted contempt.' But if the misconduct charged was such as 
 might be a contempt of court, the court itself must be the con- 
 clusive judge whether in fact it was one or not,' and the judge 
 will not be liable for an erroneous commitment where he has 
 jurisdiction." 
 
 A few instances of contempts are given below ; " but to specify 
 
 1 Shaf tsbury's Case, 1 Mod 144; statute conferring on county attor- 
 Flo-wer's Case, 8 T. R 314; Gosset v. neys the power to punish for con- 
 Howard, 10 Q. B. 411; Anderson V. tempt witnesses who refuse to testify 
 Dunn, 6 Wheat 204; State v. Mat- in certain cases is unconstitutional, 
 thews, 37 N. H. 450. Ee Sims, 54 Kan. 1, 25 L. R A. 110. 
 
 2 Brown v. Davidson, 59 la. 461. * Rex v. Eevel, 1 Stra. 420; Keg. v. 
 'And the power cannot be con- Rogers, 7 Mod. 28; Onderdonk v. 
 
 ferred upon them by the legislature. Ranlett, 3 Hill, 323. And see Ex 
 
 Whitcomb's Case, 120 Mass. 118, 21 parte Robertson, 27 Tex. App. 638. 
 
 Am. Rep. 502. where the justice was held to have 
 
 * United States v. Hudson, 7 statutory authority to impose a fine 
 
 Cranch, 32; Ex parte Robinson, 19 for contempt. 
 
 WaU. 505; Yates V. Lansing, 9 Johns. « Yates v. People, 6 Johns. 337; 
 
 395; People v. Wilson, 64 IlL 195; Yates v. Lansing, 9 Johns. 395. 
 
 Pickett V. Wallace, 57 Cal. 555; 'Lining v. Bentham, 2 Bay, 1; 
 
 State V. Morrill, 16 Ark. 384; Kregel Batchelder v. Moore, 42 Cal. 412; Ex 
 
 y. Barthng, 23 Neb. 848; State v. parte Krieger, 7 Mo. App. 367. 
 
 District Ct. (Minn.), 62 N. W. Rep. 8 Ex parte Thatcher, 7 111. 167. 
 
 831. And this power is essentially a 9 In re Cooper, 32 Vt 25a 
 
 judicial one. Langenberg v. Decker, i" Morrison v. McDonald, 21 Me. 550. 
 
 131 Ind. 471, 16 L. R. A. 108. And a " It is a contempt if strikers inter- 
 
IMiniNITT OF JTJDICIAL 0FFICEE3. 167 
 
 in detail the conduct that might constitute contempt of the 
 •court would be to enumerate the ways in which misbehavior 
 might obstruct the courts of justice.' 
 
 A warrant issued to carry into execution a conviction for 
 contempt by an inferior court should show that opportunity 
 was given the party to be heard in his defense. The right to 
 a hearing is absolute and cannot be denied in a court of any 
 grade.' And the punishment must be one warranted by law. 
 Where a justice commits one to prison for refusal to answer a 
 question in a suit before him, the committal is for the purpose 
 of compelling an answer, and if it appears that the suit has 
 been disposed of when the order for commitment was made 
 the order is void.' Attorneys, solicitors, etc., for misconduct 
 as such, may be punished by having their names stricken from 
 the rolls; * but they do not forfeit their right to their office by 
 misconduct in respect to the court as suitors or citizens merely, 
 and therefore cannot be punished by being deprived of it on 
 <!onviotion for T)ther contempts.* 
 
 The punishment imposed for contempt of court must be cer- 
 tain. An order of commitment, until discharged by due course 
 of law, would be void for uncertainty.' 
 
 fere with receivers of a railroad ap- know of the article prior to its pub- 
 pointed by a court. In re Higgins, lication. People v. Wilson, 64 HL 
 37 Fed. Rep. 443; In re Acker, 66 195, 16 Am. Eep. 53a If a court 
 Fed. Kep. 390. And it is a contempt has no jurisdiction to make an 
 to attempt to create a belief that order, a failure to comply with such 
 jurors in a pending suit could be order is not a contempt Ex parte 
 bribed. Little v. Stat^ 90 Ind. 33a Gardner (Nev.), 39 Paa Eep. 570. 
 Publications in newspax>ers com- ^ The legislature cannot make that 
 menting upon proceedings in court punishable as a contempt which, in 
 then pending and undetermined, or the nature of things, cannot be a 
 false charges or unjust censures contempt of the authority imposing 
 against the judge in his relation to the punishment. Puterbaugh v. 
 the suit, constitute contempt and Smith, 131 lU. 199, 19 Am. St. Eep. 30. 
 call for punishment as an abuse of ^Ez parte Bradley, 7 WalL 864: 
 the liberty of the press. See Ex Lowe v. State, 9 Ohio St 337. See 
 parte Barry, 85 CaL 603, 20 Am. St State v. District Court (Minn.), 63 
 Rep. 248; Myers v. State, 46 Ohio St N. W. Rep. 831. 
 473, 15 Am. St Eep. 638; State v. » Clarke v. May* 2 Gray, 410. 
 Judge, 45 La. Ann. 1250; Cooper v. < Ex parte Moore, 63 N. C. 397. And 
 People, Wyatt, 13 CoL 337, 6 L. R A. see note to Bums v. AUen, 2 Am. St 
 430 ; State t. Kaiser, 20 Ore. 50, 8 L. E. Eep. 853. 
 
 A. 584i and nofe. And the publisher of *Ee Wallace, L. E. 1 Pr. C. Cas. 
 
 a ren-spaper is liable to punishment 383. 
 
 for contempt, though he did not '■Rex v. James, 5 R & Aid. 894; 
 
168 IMMtraiTY OF JTJDICIAi OFFICEES. 
 
 Cases in the nature of contempts, where the purpose of the 
 proceedings is to enforce some civil remedy, sudh as the pay- 
 ment of costs or of alimony, will come under the same rules in 
 respect to jurisaidtion as the cases of criminal contempts above 
 spoken of.' 
 
 Re Hammel, 9 E. L 248. And the i See Staples v. Staples, 87 Wis, 592, 
 judgment must be entire and final 24 Ij. B. A. 433, and note, on con- 
 fer the partiontax contempt tempt proceedings to compd pay- 
 O'Rourke v. Cleveland, ;49 N. J. Bq. ment of alimony. 
 577, 31 Am, St Bep. 719. 
 
CHAPTER XV. 
 
 WEONGS RESPECTING PERSONAL PROPERTY. 
 
 The clajssification of property as real and personal is gov- 
 erned more by circumstances than by the nature or inherent 
 qualities of things. The designation of real property comes 
 to us from a time when the things held most valuable were the 
 estate held by feudal tenure, the castle upon it, the deer in the 
 park, the family pictureg^the family jewels, — a,nytbing, in short, 
 which distinctively pfcrtained to the family as such, and gained 
 and imparted importance as it was preserved with and held 
 inseparaible from that which gave the family its chief prom- 
 inence, the landed estate. Such property as temporary inter- 
 ests in lands, beasts for market and traders' wares, was for 
 temporary support or for trade, and pertained rather to the 
 person who for the time owned and controlled them, and who 
 might dispose of it to-morrow or himself pass away, than to 
 the family, whichj in legal contemplation, was perpetual. This 
 was caUed personal property. 
 
 In thus classifying certain property as real property the 
 prominent idea was that of , permanent interest and ownership. 
 But the representation of this permanence was the land. Other 
 things were real property only because of their association. 
 Where traders and others erected buildings upon land in which 
 they had no freehold, the land was property of the real class, 
 though it might be of little money value, and the building 
 was personal property, being of the less substantial nature, 
 though its money value might be much greater than the value 
 of that upon which it stood. This distinction still exists. The 
 actual or presumed intent of a party attaching a chattel to the 
 realty that it shall constitute a part of the realty, or that it 
 shall remain a chattel, is usually the most important circum- 
 stance to be considered in determining the f act.^ But since those 
 who, in making purchases and accepting liens upon property, 
 
 iSee Ewell on Fixtures, 31; Bink- 33; Moyer v. Hoyt, 62 Conn. 543, 19 
 ley V. Forkner, 117 Ind. 176, 3 L. R. A. L. R A. 611. 
 
170 WRONGS EESPECTING FEESONAI. PEOPEETT. 
 
 rely upon appearances to indicate whether it is real or personal, 
 the law usually acts upon the presumed rather than upon 
 any actual intent. In the case of an erection made by the 
 owner of the freehold which is apparently calculated to in- 
 crease the permanent value of the estate for use and enjoyment, 
 such as a pump put in the well, or a fence constructed to di- 
 vide off fields, the law conclusively presumes that the owner 
 intended to make it -a part of the realty, and consider it his 
 real estate from the time it was constructed or affixed.^ The 
 owner by deed, mortgage or lease of the land will convey them 
 as a part of it, and when he dies they pass with the land to his 
 ■devisee or heir at law. 
 
 The manner of annexation is not important.^ But structures 
 put up in such a way as to indicate no intention that they shall 
 be pei-manent remain personalty. The ownership of a structure 
 greeted by one not the owner of the freehold, if he intended it 
 as a permanent annexation, would pass to the owner of the 
 realty. Therefore the person making the annexation under 
 such circumstances retains his ownership in it as a chattel 
 when no principle of justice or pubhe policy is contravened by 
 doing so. Where a tenant erects a building under a mere 
 license given by the owner of the freehold, and which is subject 
 to be recalled at any time; or, as a general rule, where he 
 makes annexations for a more convenient and profitable en- 
 joyment of his estate for the term, or even by way of orna- 
 ment, if not inconsistent with the purposes for which the estate 
 is leased, such erections remain the personal property of the 
 tenant.' But whatever is attached to the realty by one in pos- 
 session under a contract of purchase becomes a part of it if 
 made in such manner that if it were so attached by the owner 
 -of the freehold it would become a part of it.* And if one 
 
 1 See Atchison, T. & S. F. E. Co. v. held to pass -with the freehold, in 
 Morgan, 43 Kan. 33, 4 L. B. A. 384. the absence of the expression of an 
 The intent of the owner may gen- intention by the vendor to the con- 
 erally be gathered from his declara- trary. HUl v. Munday, 89 Ky. 36, 
 tions, or from the character, rela- 4 L. E. A. 674. 
 
 tions and purposes of the property. ' Elwes v. Mawes, 3 East, 88, 3 Sic. 
 
 See Seedhonse v. ^reward (Fla.), 16 L. C. 169; Cooper v. Johnson, 143 
 
 So. Rep. 425. Mass. 108. 
 
 2 See Tillman v. De Lacy, 80 Ala. * Crane v. Dwyer, 9 Mich. 350, 89 
 103. Ice in an ice-house, on prem- Am. Dea 87; Miller v. Wadding- 
 ises sold for hotel purposes, has been ham, 91 Cal. 377, 11 L. R. A. 510. 
 
■WRONGS EESPECTING PEltSOSAL I'EOPEETY. 171 
 
 without a license, express or implied, on the part of the owner 
 of the freehold, shall enter and make permanent erections 
 thereon, the law will not allow him to remove what he has 
 thus unlawfully attached.' If one having a right to attach a 
 removable fixture to the freehold owned by another, shall so 
 attach it that it cannot be removed without serious injury to 
 the realty, he wUl not be allowed to remove it.^ On the other 
 hand, if, without the consent of the owner, one should remove 
 upon and attach to his own realty the structure of another, the 
 qualities of real and personal property will stUl be preserved, 
 And the separate ownership will remain.' It remains to be 
 added that the parties concerned may, by agreement between 
 themselves in due form, ^ive to fixtures the legal character of 
 realty or personalty at their option, and the law wiU respect 
 and enforce their understandings wherever the rights of third 
 persons will not be prejudiced, or any general policy of the law 
 violated.* 
 
 •Landlord and tenant may also by the lease or other agree- 
 ment control the whole subject of fixtures as they may see fit.' 
 "Where a licensee has a right to remove fixtures, he will lose 
 them unless he removes them within a reasonable time under 
 the circumstances after his license has been revoked.'' Unless 
 the tenancy is for an uncertain period, a tenant must take away 
 his removable fixtures within such time as he may lawfully 
 
 1 Though the entry be in good is put in a building to make it avail- 
 faith. Honzik v. Delaglise, 65 Wis. able as a factory, an agreement that 
 494, 56 Am. Kep. 634. And see Ewell such machinery shall remain the 
 onFlxtures, ch. 2; Kinkeadv. United property of the seller until it is 
 States, 150 U. S. 483. ' wholly paid for, will not prevent it 
 
 'See Collamore v. Gillis, 149 Mass. passing as part of the realty to a 
 578, 5 L. R A. 150, a case where the subsequent mortgagee without no- 
 tenant had erected a baker's oven. tice. Otherwise in the case of a 
 Friedlander v. Hewitt, 30 Neb. 783, prior mortgagee who consents to the 
 •9 L. E. A. 700. arrangement. Hawkins v. Hessey 
 
 3 Cochran v. Flint, 57 N. H. 514. (Me.), 30 AtL Rep. 14. And see cases 
 
 * See Sampson v, Graham, 96 Pa. cited in note to Muir v. Jones, 19 L. 
 
 St 405; Brown v. Corbin, 121 Ind. R A. 441. 
 
 455. One who in good faith pur- * See Docking v. Frazell, 38 Kan. 
 
 chases land is not affected by an 420; Handforth v. Jackson, 150 Mass. 
 
 agreement between prior owners, of 149. 
 
 which he had no notice, that a build- « See Antoni v. Belknap, 102 Mass. 
 
 ing should be reserved as personalty. 193; Ingalls v. St. Paul, M. & M. R. 
 
 Muir V. Jones, 23 Oreg. 332, 19 L. Co., 39 Minn. 479; Turner v. Ken- 
 
 R. A. 441, and note. Where machinery nedy (Minn.), 58 N. W. Rep. 823. 
 
172 WEONGS EESPECnNG PEESONAL PEOPEETT. 
 
 continue in possession.^ It has been held that one who accepts 
 a renewal of a lease without stipulating to reserve his right* 
 in existing fixtures abandons his right to them as he would on 
 surrendering possession without removing them.'^ 
 
 All removable fixtures being personalty are subject to all 
 the rules of law which govern that species of property, even 
 though they still continue attached to the freehold. StUl, if 
 the owner is injured in respect to his rights therein, while the 
 annexation continues and while he is still in possession of the 
 lands, the wrong is an iiijury in respect of his possession of 
 the realty, and trover for the fixture will not lie.* But aU fix- 
 tures become persofaalty when severed, whether the act of sev- 
 erance is rightful or wrongfaL* 
 
 Betterments. — So to do equity between parties who have 
 erected buildings of a permanent character or made other im- 
 provitoiettts upon lands which at the time he supposed were 
 his own, but which were recovered by another on a claim of 
 paiiamount title, liaws, known aS betterment or occupying claim- 
 ant laws, have been passed which require the owner, after 
 establishing his title, to pay for the imprcfvanents as a condi- 
 tion of being put in possessioti, and which confirm the occu- 
 pant in possession if payment is declined.' While the right of 
 election remains, the occupant's rranedy lor wrongs are those 
 of the occupant of the realty. 
 
 Sidewalks^ curbstones, etc., placed by the owner of urban 
 property in front of his lot are his property. While the side- 
 walk remains it is a part of the realty ; but when any such 
 
 1 Brown v. Reno, eta Co., 55 Fed. Am. Eep. 173; Carlin v. Ritter, 68 
 
 Rep. 339; Bedlow v. N. Y. F. D. D. Md. 478; Watriss v. Natl Bank, 134 
 
 Co., 112 N. Y. 263, a L R. A. 639; Mass. 571, 26 Am. Repi 694 But this 
 
 Hedderick v. Smith. 108 Ind. 203; has been questioned. Kerrv.Kings- 
 
 Friedlander v. Hewitt, 80 Neb. 783, 9 bury, 39 llich. 150, 33 Am. Rep. 362. 
 
 L. R. A. 700. And where a tenancy ' Minshall v. Uoyd, 3 BL & W. 450. 
 
 at will can be terminated after rea- * See "WyKe v. Grundysen, 51 Minn, 
 
 sonable notice, and the tenant has 360, 19 L R. A. 83. 
 
 had notice and ample opportunity ^See Moore v. Thorp, 16 R. L 655, 
 
 to remove a building before he is 7 L. R A.731; KiUmer v. Wuchner,. 
 
 dispossessed, he cannot thereafter 79 la. 722, 8 L. R. A. 289. Such stat- 
 
 remove it Erickson v. Jones, 37 utes are valid. Leighton v. Young, 
 
 Minn. 459. The rule of the text ex- 10 U. S. App. 298, 18 L. R. A. 266. 
 
 tends to the mortgagee of a build- The right of a party to betterment* 
 
 ing erected by a tenant as a trade depends upon his bona fide supposi- 
 
 fixture. Free v. Stuart, 39 Neb. 220. tion that he had the title in fee. 
 
 - Loughran v. Ross, 45 N. Y. 792. 6 Kendall v. Tracy, 04 Vt 523. 
 
WRONGS EESPECTING PERSONAL PEOPEETT. 173 
 
 structure is taken up, tbe material becomes personalty, and 
 "trespass de honis or trover will lie against any who unlawfully 
 • appropriate them.' 
 
 Growing crops are generally the property of the person who 
 rightfully has planted and grown them. A tenant may sell or 
 mortgage crops grown by him while they are growing, and 
 harvest and appropriate them when ripened.'' But if he should 
 sow or plant crops which, in the ordinary course of nature, will 
 not ripen during his term, he will lose them ' unless the dura- 
 tion of the lease is uncertain, and it is terminated otherwise 
 than by the voluntary act of the tenaijt himself, in which case 
 he is entitled to the growing crops as emblements,* and may 
 «nter upon the land to cultivate them and to harvest them. 
 The landlord, if he refuses to recognize this right and excludes 
 him, is liable on a special case, and if he harvests the crop and 
 appropriates it to his own use he may be sued in trespass or 
 trover for the value.* In this respect the rights of one who 
 sows crops on the lands of another xmder a license, after the 
 license is revoked, are similar to those of the tenant at will." 
 The owner of the land and the person raising a crop " on 
 shares " are tenants in common of the crop until it is harvested 
 and divided.' And crops and trees sowed or planted on lands 
 by a stranger to the tafle and without autherity belong to the 
 owner of the soiL* 
 
 Wild animated — If one secures and tames wild animals they 
 are his property; so if he does not tame them, as long" as he 
 keeps them confined and under his control.' The right to cut 
 a tree in whieh are wild bees is in the owner of the sod, and 
 such property, as the bees are susceptible of is in him also. One 
 
 'See Muzzey v. Davis, 54 Me. 361; the crop, depends upon the intention 
 
 Rogers v. Randall, 29 Mich. 41. of the parties. Dixon v. Niccolls, 39 
 
 ^Doremus v. Howard, 23 N. J. 390. HI. 372, 89 Am. Dec. 312. 
 
 'Bain v. Clark, 10 Johns. 434. 'Simpkins v. Rogers, 15 111. 397: 
 
 <Bevans V. Briscoe, 4 H. & J. 139; Laurendeau v. Fugelli (Wagh.), 32 
 
 Davis V. Thompson, 13 Me. 209. Paa Rep. 465. Otherwise where the 
 
 * Harris v. Frink, 49 N.-Y. 24, 10 party sowing the crop is in actual 
 
 Am. Rep. 318. adverse possession. Faulcon v. John- 
 
 « Harris v. Frink, supra. ston, 103 N. C. 264, 11 Am. St Rep. 
 
 'Dotyv. Heth, 52 Miss. 530. But 737. 
 
 whether the parties are co-tenants 'Amory v. Flyn, 10 Johns. 103, 6 
 
 of the crop or not, notwithstanding Am. Deo. 316. And see Kerson v. 
 
 the rent is to be paid by a portion of Post, 3 Caines, 175. 
 
174 WEOXGS EESPECTISG PEESONAL PEOPEETY. 
 
 who enters Tipon the land without permission to cut the tree- 
 is a trespasser.' If bees have been once domesticated, and hav& 
 then escaped, the loser retains his property therein, and may • 
 reclaim them if he pursues them with reasonable promptness.^ 
 
 In England if a hunter starts and captures a beast of the- 
 chase on the land of another, the property in him is in the 
 owner of the land ; ^ but the courts of this country follow the 
 civil law in holding the property to be in the captor, even 
 where the capture has been effected by means of a trespass on 
 another's land.* 
 
 How wrongs may be done. — One may be wronged in re- 
 spect to his ownership of personal estate in the following ways: 
 First, by the direct application of force, injuring or destroying- 
 it, or disturbing the owner in his possession, technically known 
 as a trespass ; second, by direct injuries, whether through negli- 
 gence or intent ; third, by converting the property to the use 
 of the wrong-doer; fourth, by failure to respond to any obli- 
 gation of bailment in respect to it ; fifth, by neglect to restore- 
 possession to the owner where it has been acquired without his^ 
 consent, or when a possession once rightful has become wrong- 
 ful by failure to comply with a lawful demand to surrender 
 it to the owner. 
 
 A trespass to personal property consists in the unlawful 
 disturbance by force of another's possession.- That is not a 
 trespass which consists merely in some wrong done to property 
 by one to whom, for any purpose, the property has been trans- 
 ferred by the owner, and who, at the time of the wrong, was 
 lawfully holding it.' But there is a trespass in the case of an 
 injury by force to property, the possession of which was ob- 
 tained by fraud, and for the very purpose of the wrong. 
 
 The possession disturbed by the trespass may be either: 
 First, that of the general owner of the property; or second, 
 that of one having a special property therein as mortgagee,, 
 bailee or officer;* or third, that of one who shows in himself 
 
 1 Adams v. Burton, 43 Vt 336. * See cases collected in note to- 
 
 2 Gofl V. Kilts, 15 Wend. 550. And "Wheatley v. Harris, 70 Am. Dec. 260 
 see Eexroth v. Coon, 15 K. L 35, 3 et seq. 
 
 Am. St. Rep. 863. 5 Bradley v. Davis, 14 Me. U, 30- 
 
 «Rigg V. Earl of Lonsdale, 1 H. & Am. Dec. 739. 
 
 N. 933; Blades v. Higgs, 13 C. D. 844; 6 Se-well v. Harrington, 11 Vt 141, 
 
 in error, 11 H. L. Cas. 631. 34 Am. Dec. 675. 
 
WRONGS EESPECTING PEESONAL PEOPEETT. ITS' 
 
 no other right than a peaceable possession. This mere pos- 
 session is sufficient as against one who disturbs it without right 
 in himself;^ and so one who is simply intrusted with goods 
 for safe-keeping without compensation may naaintain trespass 
 against a stranger for taking: them away. " Though a mere 
 servant has not such a special property as will enable him to- 
 maintain trover, yet a bailee, or trustee, or any other person 
 who is responsible to his principal, may maintain the action,, 
 and the lawful possession of the goods is prima fade evidence 
 of property." ^ Possession may be either actual or construct- 
 ive. The right to the possession of chattels draws to it in 
 contemplation of law the possession itself. The bailee or mort- 
 gagor of chattels who is left in possession thereof may bring 
 trespass against one who disturbs his possession, and the mort- 
 gagee or bailor may also maintain the action if entitled to de- 
 mand and take possession at any time.' 
 
 A trespass may be intentional or unintentional. But a mere 
 accident can never be a trespass. That, however, which is 
 done purposely, though by mistake, is not to be deemed acci- 
 dental. If one goes upon the land of another to take away 
 his own sheep, and by mistake takes some that do not belong- 
 to him, this is a trespass.* An employment of force, to which 
 the plaintiff assents, is not a trespass upon his rights unless the 
 assent was in itself illegal.* 
 
 The force that constitutes trespass may be applied either,. 
 1, by the party himself who is responsible for it; 2, by some 
 other person, for whose conduct, as servant or otherwise, he is 
 accountable ; or 3, by his domestic animals. The first only of 
 these cases will be considered here. 
 
 The force may be express or implied.* False or illegal im- 
 prisonment is a trespass to the person imprisoned,. though it is 
 
 1 Taylor v. Hayes, 63 Vt. 475. See if he abuses it he becomes himself a 
 Wilson V. Haley Livestock Co., 153 trespasser. Oxley v. Watts, 1 T. R. 
 U. S. 39. 13. But one whose possession is 
 
 2 Faulkner v. Brown, 13 Wend. G8. wrongful and who is himself a tres- 
 See Matthews v. Smith's Exp. Co., 33 passer cannot maintain the action. 
 N. Y. Supp. 133. Murphy v. Sioux C. R. Co., 55 la. 473. 
 
 'Staples V. Smith, 48 Me. 470; * Dexter v. Cole, 6 Wis. 319, 70 Am. 
 
 Overby v. McGee, 15 Ark. 459, 68 Am. Dec. 465. 
 
 Deo. 49. Though the finder of a ' See anie, p. 48. 
 
 chattel has a special property in it, * See Jordan v. Wyatt, 4 Gratt. 151. 
 
176 "WEONGS KESPECnNQ PEESONAL PBOPEETT. 
 
 sometimes effected by force, or by otherwise exciting a person's 
 fears. 
 
 - The degree of force is immaterial to the right of action. If 
 one's horse is hitched where he had a right to hitch him, it is 
 •a trespass if another, without permission, unhitches and re- 
 moves him to another post.' 
 
 As regards the directness of the injury which will distinguish 
 s, case in trespass from one in which the remedy must be sought 
 on the special case, the following test is laid down : If the 
 unlawful force caused the injury before it was spent, this injury 
 must be deemed direct; but if , after the unlawful force was 
 spent, the injury occurred as a collateral or secondary conse- 
 quence, it is to be considered indirect. Thus, where one is in- 
 jured by the throwing of a lighted squib in a crowd, which 
 only reached him aiter several persons in self -protection had 
 repelled it from themselves, this was a trespass because the 
 plaintiff was injured as a direct consequence of the imlawful 
 act, and before its force was spent.^ So, " if a man throws a 
 log into the highway, and in that act it hits me, I may main- 
 tain trespass beoaiuse it was a material wrong. But if, as itUes 
 there, I tmnble over it and receive an injury, I must bring an 
 action upon the case, because it is only prejudicial in conse- 
 quence, for which originally I could have no action at all." ' 
 
 An incorporeal hereditament being intangible is not the sub- 
 ject of force, and the disturbance of it is not a trespass. Any- 
 thing is the subject of trespass in which the law recognizes any 
 property, complete or partial. To kiU one's dog or cat, or even 
 a wild beast kept in confinement, is a trespass unless it can be 
 justified.* 
 
 The remedies for a trespass are : First, an action for the 
 recovery of damages, which wiU lie in all cases ; second, recap- 
 tion of the goods when the trespasser has taken them into his 
 possession, and they can be retaken without breach of the peace ; 
 or third, replevin or recapture of the goods by legal process. 
 A trespass may also generally be treated as a conversion. 
 
 Indirect injuries are generally injuries of negligence, and 
 are committed by a failure to observe that care in respect to 
 
 1 Bruch V. Carter, 32 N. J. 554 * Parker v. Mise, 27 Ala. 480, 63 Am. 
 
 2 Scot V. Shepherd, 3 Wils. 403. Dec. 776. 
 'See Reynolds v. Clark, Stra. 634, 
 
 €36. 
 
WRONGS RESPECTING PERSONAL PROPERTY. 177 
 
 the riglits of others which is their due. But they may be in- 
 juries intended, and differing from trespass only in not being 
 a direct result of the wrongful act. Thus, if one shoots a gun 
 into a crowd and injures some one of the persons there con- 
 gregated, the act is a trespass. But if he purposely and with 
 «vil intent leave a loaded pistol where children will be liable 
 to handle it, he wiU be liable if an injury occurs, but the action 
 must be on the special case.' 
 
 Trover. — The injury which is redressed in an action of trover 
 is technically called conversion, and the declaration counts on 
 the real or supposed fact that the plaintiff actually lost his 
 goods and the defendant found and appropriated them. "In 
 form the action is a fiction, in Substance, a remedy to recover 
 the value of personal chattels wrongfully converted by another 
 to his own use. The form supposes the defendant may have 
 come lawfully by the possession of the goods. This action lies 
 and has been brought in many cases where in truth the defend- 
 ant has got the possession lawfully. Where the defendant 
 takes them wrongfully and by trespass, the plaintiff, if he thinks 
 fit to bring this action, waives the trespass and admits the pos- 
 session to have been lawfully gotten." - If the plaintiff prefers 
 to recover back the specific property, he brings replevin instead 
 of trover, provided th9 goods are still in the defendant's pos- 
 session. 
 
 The actions of trespass and trover for personalty appro- 
 priated by the defendant differ, first, in that while in trespass 
 there is always an original wrongful taking, or a taking made 
 wrongful fflS initio by subsequent misconduct, in trover the 
 original taking is supposed or presumed to be lawful; second, 
 that trespass lies for any wrongful force, but the wrongful 
 force is no conversion where it is employed in recognition of 
 the owner's right, and with no purpose to deprive him of his 
 right temporarily or permanently.* 
 
 The plaintiff. — It is frequently laid down as a general rule 
 that " to sustain trover the plaintiff must show a legal title ; " * 
 
 1 Dixon V. Bell, 5 M. & S. 198. And s Wilson v. McLaughlin, 107 Mass. 
 see Welch v. Durand, 36 Conn. 183, 587. 
 
 4 Ain. Eep. 55. ^Dungan v. Mut. Ins. Co., 38 Md. 
 
 2 Lord Mansfield in Cooper v. 243, 249; Owens v. Weedman, 83 HI 
 Chitty, Butt. 20. 409, 417. 
 
 13 
 
178 ■WRONGS EESPECTING PERSONAL PROPERTY. 
 
 and in some cases the defendant has been allowed to defeat a' 
 recovery by merely showing property in a third person with- 
 out connecting himself with the right of such person.^ But 
 it has often been decided that possession alone is sufficient to 
 enable one to maintain the action of trover. In the leading- 
 case of Armory v. Belamirie,^ the finder of a jewel was held 
 entitled to bring trover against one who, having taken the- 
 jewel for examination, refused to restore it. It may be said 
 of such cases that a finder of goods has a special property 
 therein which is good against all the world but the real owner; 
 bat the law goes further and declares that the " person pos- 
 sessed of goods as his property has a good title as against 
 every stranger, and that one who takes them from him, having 
 no title in himself, is a wrong-doer, and cannot defend himself 
 by showing that there was a title in some third person, for 
 against a wrong-doerpossession is title." ' The doctrine as thus 
 laid down has been recognized in many cases in this country.*' 
 The right of which the plaintiff in trover complains that he 
 has been deprived must have been either a right actually in 
 possession, or a right immediately to take possession; it is not 
 enough that it be merely a right in action, or a right to take 
 possession at some future day. If then the plaintiff shows 
 that property in his possession has been taken and converted,, 
 he shows prima fade his right to maintain the suit; and it is 
 only when he is compelled to show his title in order to make- 
 out his right to an immediate possession that it can be im- 
 portant for him to go further.' A showing of title is not suffi- 
 cient where the owner has parted with the right of possession 
 for a time under some contract of lease or baUment. In such 
 a case the owner cannot bring trover if the term has not 
 expired or the bailment been terminated at the time conver- 
 sion takes place.® If one purchases property to be paid for 
 when delivered, and pays in part only, he cannot bring trover 
 
 1 Rotan V. Fletcher, 15 Johns. 206; And see Wilson v. Hoffman, 95 
 CTapp V. Glidden, 39 Me. 448. Mich. 73, 33 Am. St Eep. 485, and 
 
 2 Stra. 505, 1 Sm. L. C. 679. note. 
 
 3 Lord Campbell in Jeffries v. Gt. * Foster v. Chamberlain, 41 Ala.- 
 West. E. Co., 5 El. & BL 803. 158. 
 
 *See Duncan v. Spear, 11 Wend. * Gordon v. Harper, 7 T. R. 9. 
 54; Bartlett v. Hoyt, 39 N. H. 817. 
 
"WEOSGS EESPECTING PERSONAL PKOPEETY. 179 
 
 against a subsequent vendee from his vendor, the part payment 
 giving him no right of possession.' 
 
 But an apparently rightful possession is conclusive evidence 
 of property as against any one who by force or fraud inter- 
 cepts it without being able to show any right in himself, unless 
 he is able in some manner to so connect himself with the right 
 of the real owner as to be eiititled to defend in such owner's 
 interest. Thus, where the plaintiff's possession was not right- 
 ful as against the owner, a surrender of the possession to the 
 owner would be a complete defense to a suit in trover.'^ In 
 some cases it cannot be said that in law a possession has been 
 gained, and a mere showing of wrongful character of the 
 plaintiff's possession would defeat his action ; ' as where a thief 
 sues the officer for the stolen property taken from him in mak- 
 ing the arrest. 
 
 If one's goods are held without right by another, and a third 
 person converts them to his own use, the owner may maintain 
 trover for such conversion.* So the mortgagee of chattels who, 
 under his mortgage, is entitled to possession may sue in trover 
 for a conversion while they remain in the hands of the mort- 
 gagor.' But a servant cannot bring trover for the conversion 
 of his master's goods, since his possession is the possession of 
 his master.' 
 
 The property. — • Anything which is the subject of property 
 and is of a personal nature is the subject of conversion, even 
 though it have no value except to the owner. Thus trover 
 will lie against the payee for refusal to surrender a paid note,^ 
 or it will lie by the maker of a note which has never been de- 
 livered against the payee, who wrongfully obtains possession 
 and refuses to give it up on demand.* So it will lie for shares 
 of stock ; " or for cutting and carrying away trees.'" But it wiU 
 not lie against a magistrate for papers used in evidence against 
 the plaintiff before him and placed on tile." One may bring 
 
 1 Owens V. Weedman, 82 m. 409. T Stone v. Clough, 41 N. H. 290. 
 
 2 Ogle V. Atkinson, 5 Taunt. 759; Contra, Lowremore v. Berry, 19 Ala^ 
 King V. Richards, 6 Whart. 418, 37 130, 54 Am. Dec. 188. 
 
 Am. Dea 420. »Neal v. Hanson, 60 Me. 84. 
 
 'SseLaclouchv.Towle, 3Esp. 114. 'Payne v. Elliof, 54 Cal. 839; 
 
 ■* Carter v. Kingman, 103 Mass. 517. Ajrres v. French, 41 Conn. 150. 
 
 SMcConeghy v. McCaw, 31 Ala. i» Whidden v. Seelye, 40 Me. 247. 
 
 417; Grove v. Wise, 39 Mich. 161. " Greene v. Mead, 18 N. H. 505. 
 
 6 Lehigh Co. v. Field, 8 W. & S. 233. 
 
180 -WKOKGS EESPECnXG PBESONAL PEOPEBTT. 
 
 trover for a building or other fixture owned by him on the 
 land of another which the owner of the land refuses to permit 
 liim to take away, and converts to his own use.* 
 
 The conversion. — Any distinct act of dominion wrongfully 
 exerted over one's property, in denial of his right, or inconsist^ 
 ent with it, is a conversion. A manual taking of the thing in 
 question by the defendant is not necessary to a conversion;'' 
 nor need it be shown that he has applied it to his own use. 
 " Does he exercise a dominion over it in exclusion or in defi- 
 ance of the plaintiff's right? If he does, that is in law a con- 
 version, be it for his own or another person's use." ' It is a 
 conversion if one takes the plaintiff's property for a temporary 
 purpose only, if in disregard of .the plaintiff's right. If he hires 
 a horse to go to one place and drive him to another, this is a 
 conversion though he returns him to the owner.* " Any as- 
 portation of a chattel for the use of a defendant or a third per- 
 son amounts to a conversion, for the simple reason that it is an 
 act inconsistent with the general rule of dondnion which the 
 owner of the chattel has in it, who is entitled to the use of it 
 at aU times and in all places." ' While the act must have been 
 intended,* it is necessary that the result which actually follows 
 should have been contemplated. Thus an agent has been held 
 liable in trover who, being intrusted with a note to get it dis- 
 counted, and expressly directed not to let it go without the 
 money, allowed another to take it to obtain the discount, who 
 did so but appropriated the proceeds.' 
 
 A bailee wiU not be liable in trOver for the loss of property 
 through larceny or negligence; and in any case the act of the 
 bailee, if it shall amount to a conversion, must be inconsistent 
 with the bailment and known by him to be so. Therefore a 
 commission merchant who continues to make sales after his 
 authority has terminated, but without notice to him of the 
 
 > Dame v. Dame, 38 N. H. 429, 75 contra, Doolittle v. Shaw (la.), 26 L. 
 
 Am. Dec 195. B. A. 366. And see cases collected 
 
 2 Brown v. Ela (N. H.), 30 AtL Eep. in note to this case. 
 
 412. s Alderson, B., in Fouldes v. WiU- 
 
 'See liiptrot v. Holmes, 1 KbOj, oughby, 8 M. & W. 540. And see 
 
 381, 391. Burroughes v. Bayne, 5 H. & N. 296. 
 
 iRotch V. Hawes, 12 Pick. 136, 22 « Simmons v. Lillystone, 8 Exch. 
 
 Am Dec. 414; Crocker v. Gullifer, 431. 
 
 44 Me. 491, 69 Am. Dec 118. But see ' Laverty v. Snethen, 68 N. T. 522, 
 
WRONGS EESPECTING PEESOBTAL PEOPEETT. 181 
 
 fact, is not guilty of conversion, but is liable only for an ac- 
 counting.' 
 
 A mortgagor of chattels who is left in possession has such a 
 special pro'perty as will enable him to maintain trover against 
 a wrong-doer, and he may sell his right of redemption, recog- 
 nizing the right of the mortgagee. Such a sale is no conver- 
 sion of the mortgagee's interest,^ though a sale and denial of 
 the mortgagee's right would be. Such a sale would be a con- 
 version in the, purchaser also who had purchased the wh6le in- 
 terest and proceeded in a denial of the mortgagee's rights.* 
 The first mortgagee may assign his mortgage and sell his mort- 
 gaged property to a third person, subject only to the right of 
 redemption of the mortgagor and those who claim under him.* 
 But if he sells out the property in parcels, trover will lie, as 
 this might defeat the right to redeem.' 
 
 If one buys property of another who has no authority to 
 sell, his taking possession in denial of the owner's right is a 
 conversion.* So the one who receives and disposes of property 
 in the usual course of trade, though he does so in good faith, 
 and in the belief that the person from whom he took it was 
 the owner, is liable in trover if in fact the possession of the 
 latter was tortious.^ But merely receiving property from the 
 wrongful possessor and returning it before notice of his want 
 of title is no conversion.' Agency is no protection in wrongs, 
 and one who, acting merely as agent, assists in wrongful tak- 
 ing of goods is liable. So if one hires a horse for another who 
 drives it to death, whUe the hirer drives another beside it, the 
 two are jointly liable to the owner in trover.' 
 
 Demand and refusal. — Where the defendant has come into 
 the possession of propei'ty lawfully or without fault, as where 
 he finds it, or where the relation of bailor and bailee exists, it 
 is, in general, necessary to make demand of possession of him 
 before suit wiU lie." In the case of an abuse of the contract of 
 
 1 Jones V. Hodgkins, 61 Me. 480. « Hill v. Hayes, 38 Conn. 533. 
 
 2 White V. Phelps, 12 N. H. 383. 'Banfield v. Whipple, 10 Allen, S7. 
 'See Millar v. Allen, 10 R. I. 49. "Strauss v. Schwab (Ala.), 16 So. 
 ^Landon v. Emmons, 97 Mass. 37. Rep. 693; .Liptrot v. Holmes, 1 Kelly, 
 
 5 Spaulding v. Barnes, 4 Gray, 330. 381 ; Reizenstein v. Marquardt, 75 
 
 6 Miller v. Thompson, 60 Me. 333. la. 394, 1 L. R. A. 318, and note. De- 
 ' HoUins V. Fowler, L. R. 7 H. L. mand is unnecessary if the taking 
 
 Cas. 757. was tortious. Hayes v. Mass. Mut. 
 
182 WKOKGS EZSPECnNG PERSONAL PKOPEKTT. 
 
 bailment, as where property hired for one purpose is used for 
 another, the abuse terminates the bailment, and the owner 
 may retake his property without demand, or sue for its value. 
 Where one holds property subject to the owner's right, as 
 where he purchases it of another having no authority to sell, a 
 sale or a mere delivery to another, without right, constitutes a 
 conversion and renders demand unnecessary.* 
 
 A man acquires rightful possession of chattels which are upon 
 land at the time he recovers it in ejectment, and trover will not 
 lie for their conversion until after demand and refusal to allow 
 the plaintifif to take them away.* But if the owner is pre- 
 vented from removing his property it is equivalent to a de- 
 mand.' 
 
 The refusal to surrender possession in response to a demand 
 is not of itself a conversion, but is only evidence of a conver- 
 sion, and is open to explanation;* such as that the property 
 has perished or been lost without the bailee's fault.* In any 
 case where, at the time of the demand, the defendant has 
 neither the actual nor constructive posi^ssion, his liability is in 
 no manner affected by the demand and refusal. But the de- 
 mand may be important in that it may put the defendant ap- 
 parently in the wrong, and throw upon him the burden of 
 showing why he fails to surrender the property.* 
 
 Conversion hy tenant in common. — The culpable loss or de- 
 struction, by one tenant in common, of his co-tenant's interest, 
 wiU render him liable.' In England neither a claim to ex- 
 clusive ownership by one, nor the exclusion of the other from 
 possession, or even a sale of the whole, is equivalent in law to 
 loss or destruction.* Some cases in this country adopted this 
 rule,' and others have qualified it to the extent of holding that 
 a sale of the property out of the state may be treated as a loss 
 
 L. Ins. Co., 125 HL 626, 1 L. R A. 303; * Thompson v. Rose, 16 Conn. 71, 
 
 Waller v. Bowling, 108 N. C. 289, 12 41 Am De& 12L And see Eeizen- 
 
 L. E. A. 261; Bonaparte v. Clagett, stein v. Marquardt, 75 la. 294, 1 1* R 
 
 78 Md. 87. A. 318. 
 
 iSee Sycks v. Hay, 4 T. R 260; ^Dearbonm v. Union Nat Bk., 58 
 Kimball v. Billings, 55 Me. 147, 92 Me. 273; Abraham v. Nunn, 42 Ala- 
 Am. Dec. 581. 51. 
 
 ^Thoragood v. Eobinson, 6 Q. B. « Davis v. Buflhim, 51 Me. 160. 
 769. 7 White v. Brooks, 43 N. H. 402. 
 
 3 Badger v. Batavia Paper Co., 70 SMayhew v. Hen-ick, 7 G B. 229. 
 Bl-302. sSee Lewis V. Clark, 59 Vt 36a 
 
■WKONtJS RESPECTING PERSONAL PROPERTY. 183 
 
 or destruction.* lu other cases, however, a sale of the whole 
 interest by one tenant in common has been held a conversion ; - 
 and in others it is held that even a sale is not necessary to 
 make out a conversion, and that the doctrine that one tenant 
 in common cannot maintain trover against his co-tenant with- 
 out proving a loss, destruction or sale of the article does not 
 apply to such commodities as are readily divisible into portions 
 absolutely alike in quality, such as grain or money.' 
 
 Bailees. — It is no conversion by a common carrier or other 
 bailee, who has received property from one not entitled to pos- 
 session, to deliver it in pursuance of the bailment, if this is 
 done before notice of the right of the real owner.* A delivery 
 to the party entitl^ to^the possession will be a protection to 
 him, and he may defend in the right of such party before de- 
 livery.* 
 
 The injury. — As trovei" lies in all cases where one makes an 
 unlawful use of another's personalty, the injiiry is sometimes 
 very small. If one hires a horse for one journey, and starts 
 with him in an opposite direction on another, but returns the 
 horse before trial, the injury is perhaps merely nominal. But 
 where the conversion is complete, the injury suffered is, of 
 course, the value of what is converted. If one has received 
 property to be returned on demand, and declines to return it, 
 and the property thereafter increases in value, and the owner 
 treats the demand and refusal as a conversion, the injury is 
 measured by the value at that time.* He may, however, make 
 a subsequent demand and rely upon the failure to respond to 
 that as his grievance. 
 
 1 Pitt V. Petway, 12 bed. 69. See » Sheridan v. New Quay Co., 4 C. B. 
 Waller v. Bowling, 108 N. C. 289. (N. &) 619; Young v. East Ala. etc. 
 
 2 See Gilbert v. Dickeison, 7 Wend. Ca, 80 Ala. 100. 
 
 449, 22 Am. Dea 592, and cases re- SBurk v. Webb, 32 Mich. 173. As 
 
 f erred to in tiote; Steiner v. Tranum, to the rule where the value of the 
 
 98 Ala. 315. property is increased, by the action 
 
 ' See Fiquet v. Allison, 12 Mich, of the wrong-doer himself, see Win- 
 
 528, 86 Am. Dec. 54 For a colleo- chaster v. Craig, 33 Mich. 205. And 
 
 tion of the cases on the subject of as to the case where the conversion 
 
 this paragraph, see nofe to Waller V. is through innocent mistake, see 
 
 Bowling. 12 L. R A. 261. Wright v. Skinner (Fla.), 16 Sa Eep. 
 
 < Nelson v. Iverson, 17 Ala. 216; 335. 
 Burditt V. Hunt, 25 Me. 419. 
 
184 WKONGS EESPECTING PEESONAl PEOPEKTT. 
 
 Effect of judgment. — It is the present English rale,' and the 
 accepted doctrine in this country," that it is not the judgment 
 alone in trover or trespass, but judgment and the satisfaction 
 thereof, that passes title to the defendant. . The title by rela- 
 tion vests as of the time when the conversion took place. But 
 this is not effectual for all purposes. If, afte'r the conversion,, 
 the plaiatiff has sold his interest in the property, the purchaser 
 will not be affected by the suit, and the plaintiff may recover 
 nominal damages only, since by the sale he has disabled him- 
 self from passing title to the defendant.' The title wiU not 
 change if the recovery is only for an injury to the property or 
 for a temporary use, and not for the value. 
 
 Jastification under process. — For th© purpose of inter- 
 fering with one's possession of chattels the ministerial officer 
 is always supposed to be armed with legal process which he 
 can exhibit as his authority. This would not be necessary to 
 his justification in such cases as where a thief is caught 
 jkbgrante delicto with the stolen property in his possession, or 
 where implements of gaming found in actual use, in violation 
 of law, might be seized under proper statutes or municipal by- 
 laws. But these cases are not numerous. 
 
 The process that shall protect an officer must be fair on its 
 face; that is, that it shall be a process lawf ally issued and such 
 as the officer might lawfully serve. That process may be said 
 to be fair on its face which proceeds from a court, magistrate 
 or body having authority of law to issue process of that nat- 
 ure, and which is legal in form, and on its face contains noth- 
 ing to notify or fairly apprise the officer that it was issued 
 without authority. When such appears to be the process the 
 officer is protected in making service, and he is not concerned 
 with any illegalities which may exist back of it.* The word 
 "process" in this rule will include any writ, warrant, order or 
 other authority which purports to empower a ministerial offi- 
 cer to arrest a person or to seize or enter upon the property 
 
 1 Brmsmead v. Harrison, L. E. 6 C. 3 Brady v. "WMtnej, 24 Mich. 154 
 
 P. 584 And see Bacon v. Eommel, 14 Mich. 
 
 SLovejoy v. Murray, 3 WalL 1; 201. 
 
 United Society v. Underwood, 11 * Parsons v. Loyd, 3 Wils. 341; 
 
 Bush, 265, 21 Am. Rep. 214; Atwater Savacool v. Boughton, 5 Wend. 170, 
 
 V. Tupper, 45 Conn. 144 29 Am. Kep. 21 Am. Dec. 181, and note. 
 674 
 
WKONGS RESPECTING PERSONAL PROPERTY. 185 
 
 of an individual, or to do any act in respect to such person or 
 property which, if not justified, would constitute a trespass.' 
 
 The writ being lawful, the oflScer, to protect himself, must 
 proceed upon it according as the law directs. Many directions 
 are given in legal proceedings which do not have substantially 
 in view the interests of parties, and these, when they are not 
 observed, are said to be merely directory, and a failure to com- 
 ply with them amounts to an illegality only. But provisions 
 which are made for the purpose of protecting individual inter- 
 ests cannot be disregarded with impunity. For example, the 
 officer, if he sells on his process more property than is neces- 
 sary to satisfy the demand,^ or if he proceeds to sell before the 
 time when under the statute he is at liberty to do so, be- 
 comes a trespasser ab initio? For a mere nonfeasance, as where 
 an officer fails to keep safely property taken in execution by 
 him,* or to proceed to a sale as in duty bound to do,' he does 
 not become a trespasser ah initio; and the remedy must be 
 case and not trespass, because there has been no wrongful 
 force. 
 
 The protection. — The officer and those called in by him to 
 assist in the service of process apparently valid are protected 
 against liability as trespassers in obeying its commands. But 
 if the officer has taken property under it, and the fact that he 
 acquired a special property in the goods by seizure comes in 
 question, he must show not only an apparently valid writ, but 
 that the writ had lawful authority for its issue. Thus, if the 
 writ was an execution, it must appear that there was a valid 
 judgment; and, if an attachment, that the proper legal show- 
 ing was made before its issue; for until this appears, the sher- 
 iff has only a personal protection and no special property.* 
 Mere irregularities in either the writ or what precedes it are 
 not fatal defects. 
 
 What process is fair on its face. — The distinction between 
 process issuing from courts of general jurisdiction and that 
 issued by inferior tribunals is unimportant so far as it concerns 
 
 lA capias ad respondendum, ox 2 gee 'Williamson v. Dow, 32 Me. 559. 
 any warrant of arrest, is process. * Wallis v. Truesdell, 6 Pick. 455. 
 Underwood v. Robinson, 106 Mass. * Waterbury v. Lockwood, 4 Day, 
 
 296. So is an executioiu Watkins 257. 
 
 V. "Wallace, 19 Mich. 57; Johnson v. » Bell v. North, 4 Lit. (Ky.) 133. 
 Elkins, 90 Ky. 163, 8 L. E. A. 552. « Earl v. Camp, 16 Wend. 562. 
 
186 WEONGS EESPECTING PEE80NAL PEOPEETY. 
 
 the personal protection of the officer.^ But it may be impor- 
 tant as bearing upon the form of the process itself; for recitals 
 may be sufficient in one case and not in another. When a 
 court of general jurisdiction assumes authority to act, there is 
 a presumption of law that the authority exists, and the officer 
 need not inquire further; but the inferior court must not only 
 have authority in fact, but upon the face of its records, and of 
 its process enough should appear to show it.- The officer who 
 is called upon to execute the orders of any tribunal is bound 
 to take notice of the law and to know that his process is bad, 
 if in fact the law wiU not uphold it. 
 
 In Illinois it is held that where an officer knows that back 
 of process fair on its face are facts which render it void, as 
 where he has notice of an excess or want of jurisdiction in the 
 magistrate or board from which his process emanates, he would 
 render himself liable for acting under it.' But in Connecticut 
 the law has been summed up thus : " The executive officer must 
 do his duty, which is to obey aU legal writs, and must not ar- 
 rogate to himself the right of disobeying the paramount com- 
 mands of those to whose mandate he by law is subjected." * 
 In Louisiana* and Michigan,* also, an identical doctrine has 
 been laid down. The law, therefore, is, according to the weight 
 of authority, that the officer may safely obey process fair on 
 its face, and is not bound to judge of it by facts within his 
 knowledge which may be supposed to invalidate it. And while 
 an officer may safely execute process, though he may know of 
 facts to invalidate it, it seems that he may also safely refuse 
 to do so.' 
 
 iSee Savacool v. Boughton, 5 'Leachman v. Dougherty, 81 IlL 
 
 Wend. 170, 21 Am. Dec. 181. , 334 See, also, Grace v. Mitchell, 31 
 
 2 Instances of process not fair on Wis. 533. Confro, Webber v. Gray, 
 
 its face: A writ of habeas corpus 24 Wend. 485; WUmarth t. Burt, 7 
 
 issued by and returnable before an Met. 357. 
 
 ■oflacer not by law having authority *Hosmer, C. J., in Watson v. Wat- 
 over that writ Cable v. Cooper, 15 son, 9 Conn. 140. 
 Johns. 153. Process issued under an » Brainard v. Head, 15 La. Ann, 
 unconstitutional law. Elyv.Thomp- 489. 
 
 son, 3 A. K Marsh. .70. A warrant ^Bird v. Perkins, 33 Mich. 28. 
 
 ior the collection of a personal tax 'Cornell v. Barnes, 7 Hill, 35; 
 
 where one on real estate only could Davis v. Wilson, 65 IlL 525. 
 be levied. Am. Bank v. Mumford, 4 
 H. L 478. 
 
"VVEONGS EESPECTING PEKSONAL PEOPEETY. 187 
 
 Magistrate, wlieTi liable. — It is laid down elsewhere that 
 an officer acting within his jurisdiction is irresponsible ; but if 
 he acts without authority he is liable, even though his process 
 ds perfectly valid on its face, and he has acted with ptoper mo- 
 tive. As illustration are cited those cases in which a justice of 
 "the peace proceeded to punish for an offense not committed 
 within his jurisdiction ; the facts on which his jurisdiction de- 
 pended being known to him.^ 
 
 The party is liable where he participates in the unlawful 
 action of either the magistrate or the ministerial officer. He 
 is in general responsible for setting the court or magistrate in 
 motion in a case where they have no authority to act.^ There 
 is this exception : If fhe jurisdiction depends upon the facts, 
 and these are presented to a court having general jurisdiction 
 -of that class of cases, and the court decides that it has author- 
 ity to act and proceeds to do so, this protects not only the offi- 
 cer but the party.' If the officer proceeds to execute lawful 
 process in an unlawful manner, the party is not responsible 
 unless he participated in or advised the abuse.* 
 
 Protection of purchaser under execution. — Where one 
 purchasing property at an execution sale finds the- judgment, 
 the levy, the execution and the sale "apparently valid, he need 
 look no further.* The proceedings upon the execution are 
 void if the ^ourt rendering the judgment had ho jurisdiction ; * 
 ^r if for any other reason the judgment was void ; ' or had been 
 satisfied ; ' or if , being valid, the execution for any reason was 
 void,* or was issued when none was allowed by law.'" The sale 
 would also be void if made privately," or when the property is 
 not within view of the bidders ; '^ and a purchaser must take 
 notice of such an illegality. And a purchaser in good faith, 
 that is, one who has paid the purchase-price without notice of 
 defects in the proceedings, will be protected, where the plaint- 
 
 1 See Miller v. Grice, 2 Rich. 27, 44 'Higgins v. Peltzer, 49 Mo. 152. 
 Am. Dec. 271. 'Jackson v. Morse, 18 Johns. 441 ; 
 
 2 Stetson V. Goldsmith, 30 Ala. 602, King v. Goodwin, ,16 Mass. 63. 
 
 ^1 Ala. 649. 'Woodcock v. Bennet, 1 Cow. 711, 
 
 'West V. Smallwood, 3 M. & W. 13 Am. Dec. 568; Brem v. Jamieson, 
 
 418; Dusy v. Helm, 59 CaL 188. 70 N. C. 566. 
 
 * Michds V. Stork, 44 Mich. 2; Cor- " Sheetz v. Wynkoop, 74 Pa. St. 198. 
 ner v. Mackintosh, 48 Md. 374 " Hutchinson v. Cassidy, 46 Mo. 
 
 * Lenox v. Clarke, 52 Mo. 115. 431. 
 
 <> Mulvey v. Carpenter, 78 111 580. "Cresson v. Stout, 17 Johns. 116. 
 
188 WEONGS EESPECnifG PERSONAL PEOPEETT. 
 
 iff in the process, or his attorney, or any one cognizant of the 
 proceedings, who has become a purchaser, would not come 
 within the rule. For example, if the ofBcer sells without giv- 
 ing proper notice of sale, the title of a purchaser in good faith 
 would not thereby be affected ; ^ but the plaintiff and his at- 
 torney must be supposed to have known of the officer's default, 
 and a sale to either would be set aside on motion. 
 
 Locality of wrongs. — A wrong being personal, redress may 
 be sought for it, as a general rule, wherever the wrong-doer 
 may be found, without regard to where the wrong was com- 
 mitted. Local actions, however, must be brought in the country, 
 and within the very county where they arose. The distinction 
 between transitory and local actions is this: if the cause,of ac- 
 tion is one that might have arisen anywhere, then it is transi- 
 tory; but if it could only have arisen in one place, then it is 
 local. An action of trespass to the person or other conversion 
 of goods is transitory ; for flowing lands, is local, because they 
 could be flooded only where they are. For the most part the 
 actions which are local are those brought for the recovery of 
 real estate, or for injuries thereto, or to easements. In the 
 leading case of Mostyn v. FcArigas^ the governor of a British 
 colony was prosecuted in England, and a heavy judgment re- 
 covered against him for an assault and imprisonment of the 
 plaintiff without authority of law in the colony. In a later 
 case it was held to be unimportant whether the foreign tort 
 was or was not committed within territory subject to the 
 British crown.' But to support an action, the act must have 
 been wrongful or punishable where it took place, and what- 
 ever would be a good defense to the action if brought there 
 would be a good defense everywhere.* 
 
 In England the action for trespass on lands in a foreign 
 country cannot be sustained ; ' and in this country the rule, as 
 adopted by the case of Li/oingsU/fk v. J^erson^ is the same. 
 But if by means of the trespass anything is severed from the 
 realty so as to become personal property, and this is af terw;ard 
 
 iWhittaker V.Sumner, 7 Pick. 351, L. E. 6 Q. B. 1; The China, 7 WalL 
 
 19 Am. Deo. 398. 53, 64 
 
 2 Cowp. 161, 1 Sm. L. C. 1027. 5 Doulson v. Matthews, 4 T. E. 503. 
 
 ' Scott V. Lord Seymour, 1 H. & CV ^1 Brock. 203. And see Champion 
 
 219. V. Doughty, 18 N. J. 3, 35 Am. Dee. 
 
 ■1 Phillips V. Eyre, L. R. 4 Q. B. 325, 523. 
 
WEONGS EESPECTING PERSONAL PEOPEETY. 189 
 
 converted by the trespasser to his own use, suit for the con- 
 version may be brought anywhere.^ 
 
 It has been held in New Hampshire that if by a wrongful 
 act committed in one state real property is injured in another, 
 suit may be brought only in the jurisdiction where the land 
 lies.* Another case, however, has held that the action might 
 be brought in the state where the act was comniitted. 
 
 "Where a new right of action is given by statute for that for 
 which an action at comnion law would not lie, some courts 
 hold that the action can be T)rought only within the state or 
 county whose statute gives the right, and for wrongs there 
 suffered. Others hold that the action can be brought in any 
 state which has substantially similar statutes. And where a 
 further remedy is given for that which is actionable wrong at 
 ■common law, it can be enforced only by courts of the jurisdic- 
 tion giving it, and for wrongs there suffered. 
 
 'MoGpnigle V. Atchison, 33 Kan. *Worster v. Winnipiseogee Lake 
 726; Tyson v.MoGuiness, 25 Wis. 656. Ck)., 25 N. H. 525. 
 
CHAPTEE XVI. 
 
 DECEPTION. 
 
 As has been already, remarked, the law cannot attempt to 
 enforce the high moral rule requiring every man to do by- 
 others what he would have them do by him. But there must 
 be a legal standard capable of being practically applied, by 
 which the existence of actionable wrong can be determined^ 
 and this will be found in the maxim which underlies the law 
 of negligence, that every man must so use' and enjoy his own 
 as not to impede a corresponding use or enjoyment of their 
 own by others. 
 
 Fraud is either actual or constructive. Constructive frauds, 
 or frauds by construction of law, are of two kinds : First, those 
 the indirect effect of which is to deprive some person or per- 
 sons, not a party to the transaction, of some lawful right, or to 
 hinder or embarrass him or them in the enforcement of such a 
 right; and second, those which consist in accepting benefits 
 under circumstances where, as a general fact, it would be un- 
 conscionable to do so, and where, for that reason, the law as- 
 sumes the existence of fraud or overreaching. An example of 
 the first class is where one makes a voluntary conveyance of 
 so much of his property as is liable for the payment of his 
 debts as to leave insufficient for that purpos6. This fraud is 
 redressed in equity or in law by the transfer being treated as 
 void on the principle that whatever fraud creates justice will 
 destroy.' The chief illustrations of the second class are to be 
 had in the dealings between persons standing in confidential 
 relations, and they wiU be considered in the next chapter. 
 
 Actual or positive fraud consists in depeptibn practiced in 
 order to induce another to part with property or to surrender 
 some legal right, and which accomplishes the end designed.^' 
 The deception must relate to facts then existing, or which had 
 previously existed, and which were material to the dealings- 
 
 iSee Vreeland v. N. J. Stone Co., 2 gee Alexander v. Church, 53 Conn. 
 29 N. J. E]q. 188, cases cited. 561. 
 
DECEPTION. 1911. 
 
 between the parties in which the deception was employed. Tc 
 render it actionable it should appear: First, that the repre- 
 sentations were made as alleged; second, that they were made 
 in order to influence the plaintiff's conduct ; thii'd, that relying 
 upon them the plaintiff did enter into the contract, or other- 
 wise act as was desired ; fourth, that the representations were 
 untrue ; fifth, that the platatiff suffered damage from the actioni 
 he was induced to take; and sixth, that the deception was the' 
 proximate cause of the damage.^ 
 
 Burden of proof. — Fraud is never presumed, and the party 
 alleging and relying upon it must prove it.^ But this rule must 
 be applied with caution, and "amounts to but this: that a con- 
 tract honest and lawful on its face must be treated as such 
 until it is shown to be otherwise by evidence of some kind,, 
 either positive or circumstantial.'" iFraud may be therefore 
 as properly established by circumstantial evidence as by pre- 
 senting the more positive and direct testimony of actual pur- 
 pose to deceive.* Indeed, in most cases, circumstantial proof 
 alone can bring th§ fraud to light. Fraud is peculiarly a wrong 
 of secrecy and circumvention, and is to be traced, not in the 
 open proclamation of the wrong-doer's purpose, but by the in- 
 dications of covered tracks and studious concealments. The 
 court or jury must be cautious in deducing the fraudulent pur- 
 pose ; but whatever satisfies the mind and. conscience that fraud 
 has been practiced is suificient.' 
 
 What constitutes deception. — In general, a mere silence, a 
 mere failure to a-pprise the party with whom one is ded,ling of 
 the facts important for him to know for the protection of his 
 own interest in the particular transaction, is not fraud. 
 
 Caveat emptor is the motto of commercial law, and in sales 
 and other dealings every person is expected to look after his; 
 
 iTryon v. Whitmarsh, 1 Met. 1, 35 *See Ross v. Miner, 67 Mich. 410; 
 
 Am. Dec. 339. And see Lorenzen v. Bamdt v. Frederick, 78 Wis. 1, 11 
 
 Kan. City Inv. Co. (Neb.), 62 N. W. L. R. A. 199; Van Raalte v. Har- 
 
 Rep. 331. rington, 101 Mo. 603, 11 L. R. A. 424; 
 
 2 Hill V. Reif snider, 46 Md. 555; Sonnenschein v. Bartels, 41 Neb. 703. 
 XTnited States v. Trails-Missouri, etc. * Hopkins v. Sievert, 58 Mo. SOU 
 Asso., 58 Fed. Rep. 58, 24 L. R. A. 73; Elaine v. Weigby, supra; Gruber v. 
 Mayers v. Kg,iser, 85 Wis. 382, 31 L. Baker, 20 Nev. 453, 9 L. R. A 303; 
 R A. 623. Gumberg v. Treusch (Mich.), 61 N.- 
 
 3 Black, C. J., in Kaine v. Weigley, W. Rep. 872. 
 23 Pa. St 179. 
 
192 DBCBPTIOir. 
 
 own interest.^ Therefore, where the sources of information 
 are open to both parties to any dealings, and the one obtains 
 an advantage of the other, without recourse to any trick or 
 a,rtifice or conceabnent calculated to throw the other off his 
 guard ; or to any false presentation of facts, the losing party 
 must bear the consequences of his own want of vigilance or 
 prudence.^ This is the rule not only as regards the quality or 
 value of that which is the subject of negotiation, but it extends 
 to those facts and circumstances which would be likely to in- 
 fluence the mind of the contracting party if they were known 
 to ViiTn when the contract was entered into. So if one who is 
 insolvent buys goods of another, without disclosing his circum- 
 stances to his vendor, who is ignorant of them, but makes no 
 inquiries and is not deceived by false misrepresentations or 
 artifices, there is in law no fraud, although the vendor, when 
 he sold, fully believed the vendee to be responsible and entitled 
 to credit.' 
 
 There may be deception without false assertions made in 
 words. A nod, a wink, a shake of the head, or a smile art- 
 fully contrived to induce the other party to believe in a non- 
 existent fact which might influence the negotiations, may have 
 all the effect of false assertions, and be equally deceptive and 
 fraudulent.* 
 
 One may accomplish a fraud by passing off a note as duly 
 indorsed upon a person who cannot read, when in fact the in- 
 dorsement was made without recourse ; * or by encouraging 
 and taking advantage of a delusion known to exist in the mind 
 of the other, although nothing was directly asserted which was 
 calculated to keep it up.' Where one sees his own property 
 sold as the property of another, or property sold upon which 
 he has a lien, and in either case fails to disclose the facts, this 
 is fraud to which the doctrine of estoppel is appKed.' 
 
 Silenee. — Where silence amounts to an affirmation that a 
 «tate of things exists which does not, and the party is deceived 
 
 1 See Pasley v. Freeman, 3 T. R 51, b Decker v. Hardin, 5 N. J. 579. 
 
 2 Sm. L. C. 51. 6 HiU v. Gray, 1 Stark. 434; Busch 
 
 2 Brown v. Leach, 107 Mass. 364 v. Wilcox, 82 Mich. 315, 336. 
 
 8 Nichols V. Pinner, 18 N. Y. 295. ' Gray v. Bartlett, 20 Pick. 186, 32 
 
 * Walters v. Morgan, 3 De G., F. & Am. Dea 208; Dann v. Cudney, 13 
 
 J. 718. And see Nairn v. Ewalt, 51 Mich. 239, 87 Am. Dec. 755. 
 
 Kan. 355. 
 
DECEPTION. 193 
 
 to the same extent that he would have been by positive asser- 
 tions, the silence itself is fraudulent. Although an insolvent 
 may lawfully buy on credit, even though his insolvency is not 
 known to the seller, yet if, at the time he makes the purchase, 
 he intends to take advantage of his insolvency and not pay 
 for the goods, the concealment of his intention is a fraud, and 
 the title to the goods will not pass.' 
 
 If one purchases goods and gives in payment a check drawn 
 on a bank where he has no funds, and having no reasonable 
 •expectation that it will be paid, the fraud is manifest.^ So if 
 negotiations are had on the basis of certain facts known to the 
 parties, but before they ^ are concluded a change material to 
 the negotiations takes place to the knowledge of one party, 
 but not to the other, the latter has a right to be informed by 
 the former of this change, and if he is not informed he is de- 
 ceived and defrauded.' So, where one is making a purchase 
 for a specific purpose, which is' disclosed to the seller, and the 
 latter knows that what he offers for sale is wholly unfit for 
 that purpose by reason of some hidden defect, it is his duty to 
 make that fact known to the purchaser.* Thus, the offer of 
 provisions to consumers is of itself a warranty that they are 
 fit for consumption, and the purchasers are not expected to 
 inquire. And if one has diseased meats, or other unwhole- 
 some provisions, knowing the fact, but nevertheless sells them 
 without disclosing their condition, this is of itself a fraud.' 
 
 This doctrine has been properly applied to the sale of food 
 for domestic animals. In one case food upon which a poison- 
 ous fluid had been accidentally spilled was sold and fed by the 
 purchaser to a cow which was poisoned from eating it. Said 
 the court : " The plaintiff bought the hay in small quantities, 
 and the defendant must be considered as knowing generally 
 the kind of use to which it was to be applied. The act of sale 
 under such circumstances was equivalent to an express assur- 
 ance that the hay was suitable for such use. If he knew that 
 
 iLoad V. Green, 15 M. & W. 316; ^See Maynard v. Maynard, 49 Vt. 
 
 Donaldson v. Farwell, 93 U. S. 631; 297. 
 
 Stewart v. Emerson, 52 N. H. 301. * Emerson v. Brigham, 10 Mass. 
 
 2 Earner v. Fisher, 58 Pa. St. 453; 197, 6 Am. Deo. 109; Van Bracklin 
 llizner v. Kussell, 29 Mich. 239. v. Fonda, 13 Johns., 468. 
 
 3 Nichols V. Pinner, 18 N. Y. 395, 
 
 13 
 
194 DECEPTION. 
 
 the hay had a defect or had met with an. accident that rendered 
 it not only unsuitable for that use but dangerous' and poison- 
 ous, it would plainly be a violation of good faith and an illegal 
 act to sell it to the plaintiff without disclosing its condition, 
 ^ilenoe in such a case would be deceit." ^ 
 
 For the same reasons it has been held that the selling of 
 animals which the seller knows, but the purchaser does not^ 
 have a contagious disease, should be regarded as a fraud.^ So 
 infecting the grass or othfer herbage of a field by one in pos- 
 session as mere licensee, and allowing the owner to turn in his 
 beasts without informing him of the fact, is a gross fraud.* 
 And it would seem a fraud more clearly actionable if, by con- 
 cealment, the health and lives of human beings would be en- 
 dangered^ — as if one were to induce another to receive into 
 his family, as a boarder, a person who had been exposed to- 
 some contagious disease and should fail to communicate that, 
 fact. 
 
 A surety is generally expected to apply to his principal for 
 the facts likely to affect his liability, or to inquire them out 
 independently. And, therefore, the party to be secured is not, 
 in general, bound to disclose the facts vdthin his knowledge. 
 There may, however, be cases where there are no suspicious 
 circumstances on the face of the transaction, and in which the 
 ordinary rule which requires every man to protect his interests 
 by his own inquiries has no application, and in such cases the 
 duty of the creditor to speak out would be plain. Thus, if a 
 creditor, knowing that his debtor was in failing circumstances, 
 should obtain from him, for a part of his claim, a mortgage 
 substantially covering aU. his property, and induce the debtor 
 to obtain the indorsement of a third person for another part, 
 without revealing the fact of the mortgage, this is such a fraud 
 upon the indorser as relieves him from liability.* And so if a 
 husband induces his wife, to give a mortgage on her property 
 to enable him to purchase goods and continue in business, the 
 mortgagee knowing the purpose, but by a secret arrangement, 
 not disclosed to the wife, a part of the consideration of the 
 
 1 French v. Vining, 102 Mass. 133, 'Eaton v. Wmnie, 20 Mich. 156. 
 
 3 Am. Rep. 440. 4 Lancaster Co. Bank v. Albright, 
 
 3 Jeffrey V. Bigelow, 13 Wend. 518, 21 Pa. St 328. See case for facts. ' 
 28 Am. Deo. 476. 
 
DECEPTION. 195 
 
 mortgage is to be old indebtedness of the husband, this secret 
 arrangement is a fraud, and the mortgage to that extent in- 
 operative.' And so wherever the creditor has any secret ar- 
 rangement with his debtor which would increase a surety's 
 liability, or which, if known, would be liable to prevent one 
 assuming the obligation of suretyship, the accepting of th^ 
 surety's obligation Avithout disclosure is a fraud.-* 
 
 Matt&rs of opinion. — The most positive expression of mat- 
 ters of opinion, as to which the judgment is often governed by 
 whim or caprice, though it be false, is not fraud.' Thus one 
 may make exaggerated statements as to the value of a stock of 
 merchandise,* or as to the quality or value of lands whose sale 
 he is negotiating,' or as to the value of shares in an incorpo- 
 rated company," or as to the profits and prospects of such com- 
 pany,'' and in either case not liable for fraud. It is also held 
 in some states to be no fraud if the vendor asserts that he paid 
 more for what he is selling than he actually did;' in other 
 states, however, the decisions are to the contrary.' 'But where 
 the other party has a right to rely on the expre^ion of opin- 
 ion without bringing his own judgment to bear, a false asser- 
 tion will amount to a fraud. Such is the case where one is 
 purchasing goods, the value of which can only be known to ex- 
 perts, and is relying upon the vendor, who is a dealer in such 
 goods, to give him accurate information concerning them.^* 
 The same rule has been applied where a dealer in patent-rights 
 sold certain territory to one who was ignorant of the facts, by 
 false representations as to its value." It has been held that one 
 buying a saltpetre cave has a right to rely on the assertion of 
 
 1 Smith V. Osborn, 33 Mich. 410. SHolbrook v. Conner, 60 Me. 578, 
 
 2 Booth V. Storrs, 75 111. 438. 11 Am. Eep. 213, and cases cited. 
 sPasIey v. Freeman, 3 T. R 51; 'Ives v. Carter, 24 Conn. 392; 
 
 Ellis V. Andrews, 56 N. Y. 88, 15 Am. Somers v. Richards, 46 Vt. 170; Mc- , 
 
 Rep. 379. Fadden v. Robisoh, 35 Ind. 24; Fair- 
 
 i Mother v. Post, 89 Wis. 602. child v. McMahon, 139 N. Y. 290, 36 
 
 sMooney v. Miller, 103 Mass. 217; Arn. St. Rep. 701, and cases cited in 
 
 Chrysler v. Canaday, 90 N. Y. 273, 43 note. 
 
 Am. Rep. 166; Shanks r. WMtney, wSee Kost t. Bender, 25 Mich. 515; 
 
 66 Vt. 405. Pike v. Fay, 101 Mass. 134. 
 
 6 Ellis V. Andrews, 56 N. Y. 83, 15 n AUen v. Hart, 73 lU. 104 But a 
 
 Am. Rep. 379. representation as to the validity of 
 
 'New Brunswick R. Co. v. Cony- a patent-right is generally mere mat- 
 
 beare, 9 H. L. Cas. 711. ter of opinion. Reeves v. Corning, 
 
 51 Fed. Rep. 774 
 
196 DECEPTION. 
 
 the vendor as to the quality of saltpetre which a certain quan- 
 tity of nitrous earth would produce.^ And the vendee has a 
 right to rely upon the representations of his vendor respecting 
 the quantity of land ^ and the boundaries thereof.' 
 
 Matters of law. — Misrepresentations as to the legal effect or 
 consequence of a proposed transaction or contract cannot, in 
 genpral, be looked upon as a cheat. Thus, where an agent, 
 procuring subscriptions to the stock of a corporation, repre- 
 sented that the subscribers would be liable only to a certain 
 percentage when the law made them responsible for the whole 
 amount, the subscriber cannot escape liability upon his subscrip- 
 tion on the ground of fraud, for " there was here no error, mis- 
 take or misrepresentation of any fact." * 
 
 Fraudulent promises.^ As has been said, deceit, in order to 
 be actionable, must relate to existing or past facts. Therefore, 
 the fact that a promise made in the course of negotiations is 
 never performed is not of itself either fraud or the evidence of 
 :a fraud.* But in such a case as the purchase of goods with an 
 intention not to pay for them, or where one, by promising to 
 take up an incumbrance on the title of another, secures the 
 title for himself, the promise is false token, a device resorted 
 to for the purpose of accomplishing the fraud.^ So, if the 
 beneficiary in a will should persuade the maker thereof not to 
 make a codicil, by promising to fulfill the wishes expressed, he 
 may be held to this promise as a fraud if he did not intend 
 ito perform it.' 
 
 Self-protection. — ^Where ordinary care and prudence are 
 sufficient for self -protection it is the duty of the party to make 
 
 1 Perkins v. Eioe,' Lit. SeL Cas. 318. HL 391 ; Warner v. Benjamin, 89 Wis. 
 And see Mudsill Min. Co. V. Watrous, 390; Da we v. Morris, 143 Mass. 188, 
 61 Fed. Eep. 163. 4 L. E. A. 108. 
 
 2 HiU V. Brower, 76 N. C. 134 ; Cul- « Wilson v. Eggleston, 27 Mich. 357. 
 Imn V. Branch Bk., 4 Ala. 31, 37 Am. 'Dowd v. Tucker, 41 Conn. 197. 
 Dec. 735. But see Gordon v. Par- And where the promoter of a cor- 
 melee, 3 AUen, 313; Martin v. Hamlin, poration, who had knowledge of the 
 18 Mich. 354, 100 Am. Dec. 181. unsatisfactory condition of its af- 
 
 3 Clark V. Baird, 9 N. Y. 183; Bob- fairs, by false representations, made 
 •erts V. French, 153 Mass. 60. with a design to mislead, induced 
 
 * Upton V. Tribilcock, 91 U. S. 45, one to take stock, this was held a 
 
 49. fraud. French v. Eyan (Mich.), 62 
 
 SFenwick v. Grimes, 5 Oranch, N. W. Eep. 1016. 
 C. C. 439; Murray v. Beckwith, 48 
 
DECEPTION. 197 
 
 use of them. Therefore if a party trusts himself in the hands 
 of one whose interest it is to mislead him, where he has the 
 means of knowledge available, he cannot in general obtain re- 
 dress if he suffers from false representations regarding matters 
 of f act.^ This rule is frequently applied where fraud is alleged 
 in the sale of property near enough to be inspected, and when 
 the alleged defect is one -vy^hich ordinary prudence would have 
 disclosed.'' It is otherwise where the property purchased is 
 at a distance, for then a degree of trust is often unavoidable.. 
 In the leading case of Smith v. Richards ' Yirginia lands rep- 
 resented as containing a valuable mine had been sold in ISTew 
 York, and it was held that whenever a sale was made of prop- 
 erty at a remote distance which the purchaser knows the seller 
 has never seen, but which he buys upon the representation of 
 the seller relying on its truth, such representations in effect 
 must be deemed to amount to a warranty, at least that the 
 seller is bound to make it good. A similar rule is applied where 
 one buys land which at the time was covered with snow, ren- 
 dering an examination of the soil impracticable.* 
 
 Eepresentations which disarm vigilance. — A party who 
 claims to have been induced by fraud to sign a contract or 
 other paper, whose contents were misread or misrepresented 
 to him, is frequently denied redress for these reasons : Fir sty 
 that it invites perjury and subornation of perjury if persons 
 are allowed to set aside their contracts on parol evidence, hav- 
 ing been misled into signing them; second, it encourages neg- 
 ligence when relief is given against that which ordinary pru- 
 dence would have prevented. But there is no inflexible rule 
 to the effect that one cannot be protected against the conse- 
 quence of his own foUy, but every case will have peculiarities 
 of its own by which it may be judged, and each case must be 
 considered on its own facts. 
 
 Where one complains that he has been defrauded into sign- 
 ing a contract without reading it, and on the representation 
 respecting its contents of the party whose interests . are an- 
 
 1 Short V. Pierce (Utah), 39 Pac. 2 Long v. Warren, 68 N. Y. 426. 
 
 Rep. 474; Slaughter v. Gerson, 13 313 Pet. 26. And see Nolte v. 
 
 Wall 379; "Weaver v.Schriver(Md.), Beichelm, 96 HI. 425; Caldwell v. 
 
 30 AtL Eep. 189; Brown v. Leach, Henry, 76 Mo. 254, 
 
 107 Mass. 364; Eockaf allow v. Baker, « Martin v. Jordan, 60 Me. 531. 
 
 41 Pa, St. 319, 80 Am. Dec. 624 i 
 
198 DECEPTION. 
 
 tagonistic to his own, the question to a large extent is one of 
 negligence, and the one clearly negligent may sometimes be 
 justly refused relief .^ This is especially so if the instrument was 
 negotiable paper which has passed into the hands of a honafide 
 holder before maturity. In the Iowa case of Douglas v. Maf- 
 ting,^ it was held that if one, " thro\igh his own culpable care- 
 lessness while dealing with a stranger, allows himself to be 
 deceived into signing a negotiable note which he beheves is 
 something entirely different, he can make no defense to it in 
 the hands of a lona fide holder." On, the other hand, it is held 
 in .Michigan and other states that if the. party whose sigaa- 
 nature was procured under such circumstances was guilty of 
 no negUg6nce,,the paper is void for all purposes.' These cases 
 are aU. decided with reference to the rule that where one of 
 two innocent parties must sufPer from a fraud, and the negli- 
 gence of one has enabled the fraud to be committed, he who 
 is chargeable with the negligence should bear the loss. Con- 
 tracts in general are void as to all parties, and even negotiable 
 paper is void as to aU but lona fide holders, where the signa- 
 ture was obtained by trick or artifice and the party supposes 
 he is signing something different.* But negligence is an im- 
 portant consideration even where the question arises as be- 
 tween the parties to a contract, and generally" parties cannot 
 obtain rehef who have not been ordinarily prudent. But ordi- 
 narily prudence is no protection against false assertions and 
 plausible protestations made to disarm vigilance. ' And where 
 property has been sold which' may be conveniently examined, 
 but examination was prevented intentionally by false asser- 
 tions, the purchaser may hold the seller responsible." 
 
 It has been asserted that " every contracting party has an 
 absolute right to rely on the express statements of an existing 
 fact, the truth of which is known to the opposite party, and 
 unknown to him, as the basis of a mutual engagement; and he 
 is under no obligation to investigate and verify statements, to 
 
 » See Beck & Pauli Lith. Co. v. Mo. 245, 11 Am. Eep. 445; Taylor v. 
 
 Houppert (Ala.), 16 So. Rep. 523. Atoliison, 54 111. 196, 5 Am. Eep. 118. 
 
 2 39 Iowa, 498, 4 Am. Eep. 338. To < See Foster t. Maokinnon, L. E. 4 
 
 the same effect. Chapman v. Eose, C. P^ 704; Gibbs v. Linabury, supra. 
 
 56 N. Y. 137, 15 Am. Eep. 401. 'Chamberlain v. Eankin, 49 Vt " 
 
 8 Gibbs V. Linabury, 32 Mich. 479, 133. 
 7 Am. Eep. p75; Briggs v. Ewart, 51 
 
DECEPTION. 199 
 
 the truth of which the other party to the contract, with full 
 means of knowledge, has deliberately pledged his faith.^ And 
 relief has often been given in cases of very manifest want of 
 vigilance, as where iUiterate persons have been deceived into 
 signing contracts which were misread or misrepresented to 
 them by the other contracting party .^ 
 
 Every case inyolving the question of negligence must be con- 
 sidered on all its facts,' and very great apparent negligence 
 may be excused where prudence has been overcome by new, 
 peculiar or very gross frauds. 
 
 Representations as to title. — In Monell v. Golden * it was 
 decided that one who had been induced to make the purchase 
 of land on a false representation by the vendor that if he 
 bought it he would be entitled to obtain from the state certain 
 adjoining lands under water, the vendor knowing that the 
 state had previously conveyed them, may maintain an action 
 for the fraud. ^ And the doctrine of this case has been frequently 
 approved.' It has been answered to such an action that one 
 should have no remedy for his own folly in neglecting to in- 
 spect the ^ubhc records, which are notice of what the real title 
 is. But where the vendor had asserted that the title to the 
 lands he was selling had been looked up by him and found to 
 be all right, and the purchaser had said he would take the 
 vendor's word for it, it was held that there was a relation of 
 trust and confidence between the parties, and the seller was 
 bound to exhibit the truth of the case.' 
 
 Who may rely npon the representations. — IS'o one has a 
 right to accept and rely upon the representations of others 
 but those to influence whose actions they were made. One 
 who makes statements for the express purpose of influencing 
 the action of another is morally accountable to that person 
 only whom he seeks to influence; and one who, having over- 
 heard the statements, acts upon them, cannot claim to have 
 been defrauded if they prove false. Fraud implies a wrongful 
 
 iMead v. Bunn, 33 N. Y. 275, 380, *13 Johns. 395, 7 Am. Deo. 390. 
 
 by Porter, J. See, also, Eaton v. ^See Bristol v. Braidwood, 28 
 
 ■Winnie, 20 Mich. 156,166; Blacknall Mich. 191; Bailey v. Smock, 61 Mo, 
 
 v. Rowland (N. C), 31 S. E. Rep. 296; 213; West v. Wright, 98 Ind. 335. 
 
 Kramer v. Williamson, 135 Ind. 655. 6 Converse v. Blumrich, 14 Mich, 
 
 2 Selden v. Myers, 30 How. 506. 109, 131. 
 
 «See Brady v. Finn, 162 Mass. 260. 
 
200 DECEPTION. 
 
 act or one -wrongfully acted upon, and in the case supposed 
 there is no privity whatever. One to whom false representa- 
 tions are made to affect the action of another whose agent he 
 is, and not his own action, is entitled to no remedy .^ But some 
 representations are made for the express purpose of influencing 
 the mind of the public, and of inducing individuals of the pubho 
 to act upon them; and whoever does in fact receive, rely and 
 act upon these in the manner intended has a right to regard 
 them as made to him, and to treat them as frauds upon him, if 
 in fact he was deceived to his damage.'' Courts, both of law 
 and equity, have frequently relieved parties defrauded by mis- 
 representations contained in the prospectuses issued by pro- 
 jectors of corporate undertakings.' And if, after the corporation 
 is formed, the managers make false reports, declare fictitious 
 dividends, or resort to any fraudulent device whatever, whereby 
 they induce individuals to take stock in the corporation, they 
 are liable to the parties thus defrauded in an action for the de- 
 ceit.* So an officer of an insurance company who issued a false 
 prospectus whereby one was induced to take out an insurance 
 in that company is held responsible for the fraud to the person 
 so insuring.* And the president of a corporation who pretends 
 to assist the shareholder in selling his shares, and advises a 
 particular sale at a certain price, which is in facta sale made 
 to a third person for himself, commits a fraud on the share- 
 holder for which an action on the case will lie.° 
 
 Materiality of representation. — Fraud consists not in mere 
 intention, but " of conduct that operates prejudicially on the 
 rights of others." ' The fraudulent represehtations that wUl 
 avoid a transaction must have, "Kke poison, entered into it, 
 tainted and destroyed it."' The representations must be of 
 an apparently reliable character, holding out inducements to 
 
 1 WeUs V. Cook, 16 Ohio St. 67, 88 N. J. 250 ; Paddock v. Fletcher, 43 Vt 
 Am. Deo. 436. 389. 
 
 2 Carvill v. Jacks, 43 Ark. 454. See « Huntingf ord v. Massey, 1 F. & F. 
 Genessee, etc. Bank v. Midi. Barge 690; Morgan v. Skiddy, 63 N. T. 319. 
 Co., 53 Mich. 164; Eaton, etc. Co. v. s Fisher v. Budlong, 10 R I. 525. 
 Avery, 83 N. Y. 31. 6 Pontif ex v. Bignold, 3 M. & G. 63. 
 
 3 See Clark v. Dickson, 6 C. B. (N. S.) ' WilUams v. Davis, 69 Pa. St 31, 
 453; Taylor v. Ashton, 11 M. & W. 28. 
 
 401; Peek v. Gurney, L. E. 13 Eq. 8 Clark v. Everhart, 63 Pa. St 347, 
 Cas. 79; Booth ads. Wonderly, 36 349. ' 
 
DECEPTIOIT. 201 
 
 make the contract calculated to mislead the purchaser and 
 induce him to buy on the faith and confidence of such repre- 
 sentations, and, in the absence of the means of information to 
 be derived from his own observation and inspection, and from 
 which he could draw conclusions to guide him in making the 
 contract independent of representations.^ 
 
 To determine whether the representations were material,, 
 every case must be examined on its own facts.^ Thus to mis- 
 represent the crops raised the previous year on a farm which 
 is sold,' or the amount of business done at a certain stand,* 
 is material, as these facts have a bearing on the question of 
 value. 
 
 Deceiving third persons. — "While an action cannot in gen- 
 eral be maintained for inducing a third person to break his- 
 contract with the plaintiff,' yet, if this be done by deceptiouj. 
 it might be different. If, for example, one were to imperson- 
 ate a vendee, buy goods, and receive and pay for them as on a 
 sale to himself, the vendee would have an action not only 
 against the vendor, but also against the party who, by deceiv- 
 ing one, had defrauded both. And where the performance of 
 a contract is prevented by deceiving the party about to make- 
 it, it is immaterial that the contract was not binding under th© 
 Statute of Frauds because not in writing, the defect being one 
 the party had a right to waive." 
 
 Knowledge of the wrong-doer. — The rule is laid down that, 
 in order to render false representations fraudulent in law, it 
 must be made to appear that the party making them knew at- 
 the time that they were untrue. This rule, however, has many 
 exceptions, and it is certain that courts of equity do not limit 
 their action to it in giving relief when the representations 
 prove to be untrue in fact. But the diEference between courts^ 
 of law and equity in their jurisdiction and in the modes of giv- 
 ing relief must be borne in mind. In a court of law, where the-- 
 plaintiff counts upon a fraud, he must establish it by evidence^ 
 but a court of equity gives relief from unconscionable contracts 
 on the ground of mistake as well as of fraud. 
 
 1 Yeates v. Pyror, 11 Ark. 58. * Kimball v. Harman, 34 Md. 407r 
 
 2 See Palmer v. Bell, 85 Me. 353. 6 Am. Rep. 340. 
 
 3 Martin v. Jordan, 60 Me. 531. sBice v. Manley, 66 N. Y. 83, 23-- 
 * Taylor v. Green, 8 C. & P. 316. Am. Rep. 30. 
 
S02 DECEPTIOK. 
 
 In the sale of personal property, positive representation of 
 material facts, intended by the seller as an affirmation on which 
 the purchaser may rely, and upon which he does rely,^ consti- 
 tute a warranty which the vendor will be held to make good 
 in a suit at law as well as in equity. But such a warranty, 
 although the facts prove to be different from what they were 
 asserted to be, is not necessarily a fraud. Where one takes a 
 warranty for his own protection, he takes it on the understand- 
 ing merely that, if the facts are otherwise than the promise or 
 warranty asserts, the warrantor wiU protect him. Therefore 
 on a broken warranty the action is on the contract, and it is 
 not assumed that a tort has been committed. But if the war- 
 ranty be made with knowledge that facts asserted are untrue, 
 and with intent to deceive by the false statements, it is a fraud. 
 If one sells a horse which he avers is sound, there is upon these 
 iaots only a warranty ; but if he knows the horse to be unsound, 
 but nevertheless sells it with the like positive assertion that it 
 is sound, this is a false warranty, and the scienter makes it a 
 frsMA? 
 
 The question arises whether this remedy is confined to cases 
 in which the defendant knew, or had reason to believe, he was 
 deceiving by untruths. An examination of the cases shows 
 that one who has been induced, by misrepresentations of ma- 
 terial facts, to enter into a contract, may have redress as for a 
 tfraud: 
 
 First, when the representations were made by the other 
 party, with knowledge of their falsity, and with intent to d&- 
 ■ceive.' 
 
 Second, when the party making them had no knowledge 
 and no belief on the subject, and recklessly made them with 
 the like intent.* 
 
 Third, when the party supposed his representations to be 
 true, but had no reason for any such belief, and nevertheless 
 
 iSee Hawkins v. Pemberton, 51 46 Am. Dea 598; Cole v. Cassidy, 
 
 ji. Y. 198, 10 Am. Eep. 595. 138 lilass. 437; Bullitt v. Farrar, 42 
 
 2 Frenzel v. Miller, 37 Ind. 1. Minn. 8, 6 L. R. A. 149; McKinnon v. 
 
 3 See Pasley v. Freeman, 3 T. R. 51; Vollmar, 75 Wis. 82, 6 L. R. A. 121. 
 Oriswold v. Sabine, 51 N. H. 167, 13 And see Prewitt v. Trimble, 92 Ky. 
 Am. Kep. 76. 176. 
 
 * Hammatt v. Emerson, 37 Ma 308, 
 
DECEPTION. 203 
 
 made them positively as of known facts, and induced the other 
 to act upon them.* 
 
 In all of these cases the ground of recovery consists in the 
 impression produced on the mind of one party that certain 
 non-existent facts do exist to the knowledge of the other. 
 
 Representations must have been acted on. — Unless the 
 representations are acted on, no action will lie. It is not essen- 
 tial, however, that they should have formed the sole induce- 
 ment to a contract ; it is enough that they form a material in- 
 ducement.^ On the other hand, if the party, instead of relying 
 upon the representations, acted upon his own judgment ; or if, 
 before the negotiations were completed, he ascertained their 
 falsity ; or if, after thef^ were completed, he aflB.rmed the bar- 
 gain unconditionally with fuU knowledge of the facts, no ac- 
 tion can be maintained.' It can certainly be no fraud if the 
 party, instead of believing the representations, believes directly 
 the opposite.* 
 
 Where a purchaser, electing not to rely upon the representa- 
 tions of the vendor, proceeds to an investigation in person or 
 by agents, there is no deception even though he fails to dis- 
 cover important facts, providing the vendor interposes no ob- 
 stacle to a full investigation and does nothing to mislead while 
 it is in progress.' But even then, perhaps, he might be relieved 
 if the examination was not by experts, and the representation 
 concerned some quality of the thing sold which was suscept- 
 ible of being accurately determined by experts only.^ If the 
 representations have brought about a contract, and a new one 
 is substituted for this before their falsity is discovered, the sec- 
 ond contract as well as the first is supposed to have been in- 
 duced by them.' 
 
 Rescinding contract for fraud. — It is a general rule that 
 the party defrauded in a bargain may, on discovering the 
 fraud, either rescind the contract and demand back what has 
 
 1 See Sims V. Eiland, 57 Miss. 607; Pratt v. Philbrook, 41 Me. 133; 
 Ormrod v. Hurth, 14 M. & W. 651. Whiting v. ffiU, 23 Micli. 399. And 
 
 2 Sioux Bkg. Co. V. Kendall (S. D.), see Thompson v. Libby, 36 Minn. 281. 
 63 N. W. Bep. 377; Roberts v. French, * Bowman v. Carithers, 40 Ind. 90. 
 153 Mass. 60; Converse v. Hood, 149 » Hall v. Thompspn, 1 S. & M. 443. 
 Mass. 471, 4 L. R. A. 521. « Perkins v. Rice, Lit. Sel. Cas. 218. 
 
 'Hagee v. Grossnsan, 31 Ind. 323; 7 Davis v. Henry, 4 W. Va. 571. 
 Proctor V, McCoid, 60 Iowa, 153; 
 
204 DEOEPTIOK. 
 
 been received under it, or lie may affirm the bargaia and sue 
 and recover damages for the fraud. But if he elects the former 
 course he must move promptly.' Both at law and in equity, 
 long acquiescence, with full knowledge of the fraud, will be 
 deemed a waiver of the right to rescind.'* And dealing with 
 what has been acquired by a contract in a manner inconsistent 
 with an intention to rescind will be deemed a waiver of the 
 right; as where a party puts upon the market for sale corpo- 
 ration shares which he knows were fraudulently sold to him.' 
 
 The party electing to rescind must also place the other party 
 as nearly as possible iri statu quo. "Whatever he has received 
 under the contract he must restore; * but if he shows what he 
 received was absolutely worthless this rule will not operate.' 
 But if the defrauded party has so dealt with the subject-matter 
 of the contract that it has become impossible to put the other 
 in statu quo, a suit at law for damages is generally the only 
 remedy.* 
 
 Affirming the contract. — A fraud may also be waived by 
 an express affirmance of the contract. Where an affirmance is 
 relied upon, it should appear that the party having a right to 
 complain of the fraud had freely, and with fuU knowledge of 
 his rights, in some form manifested his intention to abide by 
 the contract, and waive any remedy he might have had for the 
 deception.'' After the contract is rescinded, and the party 
 guilty of the fraud refuses to restore on demand what he has 
 fraudulently obtained, the other, at his option, may treat the 
 detention as a cQnversion. 
 
 Indirect suppression of f rand. — If parties are equally cul- 
 pable the court will not Hsten to their complaints. If, in at- 
 tempting a fraud on a third person, one of two culpable parties 
 obtains an advantage over the other, relief wiU. be refused.* 
 
 iPearsoU v. Chapin, 44 Pa. St. 9; ton v. Blanchard, 23 Kck,18,33 Am. 
 
 Wright V. Peet, 36 Mich. 3ia Dec. 700. 
 
 2 Strong T. Lord, 107 111. 35; Mich- sBabcock v. Case, swpra. 
 
 oud V. Girod, 4 How. 503; McCuUoch 6 Downer v. Smith, 33 Vt 1, 76 Am. 
 
 V. Scott, 13 B. Mon. 173, 56 Am. Dec. Dec. 148; Clarke v. Dickson, EL, BL 
 
 561. & El. 148. 
 
 SExparteBriggs, L.E.1 Eq. Cas. 7 Bradley v. Chase, 32 Me. 511; 
 
 483. Negley v. Lindsay, 67 Pa. Si 317, 5 
 
 ^Babcock v. Case, 61 Pa. St. 437, Am. Rep. 427. 
 
 100 Am. Dec. 654 and note; Thurs- « Nellis v. Clark, 4HiIl, 424; Koman 
 
 V. Mali, 43 Md. 513. 
 
DECEPTION. 205 
 
 But this rule will not be enforced against a party actually or 
 presumably under the influence of the other, and -who was 
 induced to engage in the transaction by means of this influ- 
 ence.^ 
 
 Duress is a species of fraud in which compulsion in some 
 form takes the place of deception in accomplishing the injury. 
 It is either of the person or of the goods of the party ; and the 
 former is either by imprisonment, by threats, or by an exhibi- 
 tion of force that apparently cannot be resisted.^ 
 
 If one is arrested, though for a just cause, if it be without 
 lawful authority, the arrest constitutes duress, and whatever 
 is obtained by toeans of it is obtained wrongfully." But it is 
 equally duress if the arrest is by lawful authority, but with the 
 purpose to make use of it to compel the defendant to surren- 
 der to the plaintiff something to which the writ does not law- 
 fully entitle him.^ Threads constitute duress where they cause 
 reasonable apprehension of loss of Ufe, or of some great bodily 
 harm,* or of imprisonment.' Duress of goods consists in seiz- 
 ing by force or withholding from the party entitled to it the 
 possession of personal property, and extorting something as a 
 condition for its release ; ' or in demanding and taking per- 
 sonal property under color of legal authority which, in fact, is 
 either void or for some other reason does not justify the de- 
 mand.' 
 
 Extortion or the exaction of illegal or excessive fees for legal 
 services is also a species of fraud, and the party from whom 
 the exaction is made is entitled to the same remedy as in a case 
 where his property has been taken from him wrongfully.' 
 
 'Barnes v. Brown, 32 Mich. 146; 14 Am.Eiep. 556; Hargraves v. Kor- 
 
 Ford V. Harrington, 16 N. Y. 285. cek (Neb.), 62 N. W. Rep. 1086. And 
 
 2 See Kraemer v. Deustermann, 37 see cases cited in note to City Nat. 
 
 Minn. 469. Bank v. Kusworm, 26 L. R A. 48. 
 
 'Tbompsonv.Lockwood, 15 Johns. 'Spaids v. Barrett, 57 111.289, 11 
 
 236. Am. Eep. 10. 
 
 ^Breck v. Blanchard, 22 N. H. 323, 8 Adams v. Eeeves, 68 N. C. 134, 12 
 
 51 Am. Deo. 322. Am. Rep. 627. 
 
 6 Baker V. Morton, 12 WaU. 150. 'See Skeate v. Beale, 11 Ad. & EL 
 
 6 Harmon v. Harmon, 61 Me. 227, 983. 
 
CHAPTEE XVn. 
 
 WRONGS IN CONFIDENTIAL RELATIONS. 
 
 Definition. — By confidential relations are here meant sucb 
 relations as those which exist between agent and principal^ 
 between partner and partner, or which may exist between 
 parent and child, and between husband and wife,^ and which 
 are formed by convention or acquiescence, in which one party 
 trusts his pecunieiry or other interests to the fidelity and in- 
 tegrity of another, by whom, either alone or in conjunction 
 with himself, he expects them to be guarded and protected. 
 In case of the domestic relations there usually exists a trust 
 born of affection and great personal intimacy that may easily 
 grow into or pave the way for undue influence. By undue in- 
 fluence is meant that control which one obtains over another,, 
 whereby the other is made to do, in important affairs, what of 
 his own free will he would not do.^ The manner in which the 
 control is obtained is not important. 
 
 , Husband and wife, — The law is especially careful in guard- 
 ing and protecting the confidence which is begotten of the re- 
 lation of husband and wife. In general, even where by statute 
 a party accused of crime is allowed to testify in his own behalf, 
 neither husband nor wife is permitted to testify against the 
 other, except by mutual consent ; it being deemed better that 
 justice should sometimes fail for want of evidence than that 
 the family confidences should be made public, or the spouse be 
 tempted to conceal or prevaricate where the truth might be 
 damaging. If, as between the parties themselves, a sense of 
 what is becoming does not afford protection to this confidence, 
 which should be held sacred, the law undertakes to give no 
 redress. 
 
 1 Wherever "there has been a con- 2 Martin V. Teague, 3 Spears, 260. 
 
 fidence reposed, which invests the And see Mitchell v. Mitchell, 4S 
 
 person trusted with an advantage in Minn. 73 ; Herster v. Herster, 132 Pa. 
 
 treating with the person so confid- St. 239. 
 
 ing." Ruger,C, J., in Fisher V. Bishop, ' 
 108 N. Y. 35. 
 
\VT«ONGS IN CONFIDENTIAL EELATIONS. 20T 
 
 While, so far as the wife's property interests are concerned^ 
 the common-law presumption that she was largely under the 
 coercion of her husband is no longer indulged, still the exist- 
 ence of some degree of marital influence may always be sup- 
 posed. This relation is consequently of high importance when 
 fraud or unfair dealing by the husband with the wife's interests 
 is alleged ; and " any undue advantage gained by the use of 
 the marital relation is a legal fraud on the wife, which courts 
 of equity will not allow to stand to her prejudice." ^ "Where 
 the statutes permit the wife to bring suit at law against the 
 husband, she may seek a remedy in that form when the facts 
 justify it, in which case she makes out her right of action on 
 proofs which would support one against any other person, and 
 the relation is important only as it has furnished the facilities 
 for accomplishing the wrong complained of. "Where the hus- 
 baiui, by the acquiescence of the wife rather than by her ex- 
 press employment, has become her agent for the management 
 of her property, and has acquired a knowledge of its condition,, 
 circumstances and value greater than she is likely to possess,, 
 he will be held under strictest obligation not to abuse the con- 
 fidence reposed.^ 
 
 Parties engaged to marry. — The most serious fraud accom- 
 plished in the relation arising from the contract of marriage is 
 that of seduction. If the woman's consent was obtained by 
 means of promises of marriage, which the man did not intend 
 to fulfill, " this was a cheat on the part of the man," ' and may 
 properly be considered as an aggravation of the damages re- 
 coverable for breach of promise,* " The result of an ordinary 
 breach of promise is the loss of the alhanoe and the mortifica- 
 tion and pain consequent on rejection ; but in the case of seduc- 
 tion there is added to this the loss of character and social posi- 
 tion, and not only a deeper shame and sorrow but, a darkened 
 future. All of these spring directly and naturally from the 
 broken obligation." ' 
 
 1 Witbeck v. Witbeck, 35 Mich. 439, * Paul v. Frazier, 3 Mass. 71, 3 Am. 
 443. And see Reagan's Adm'r v. Dec. 95; KeUy v. Riley, 106 
 
 Holliman, 34 Tex 403. 339, 8 Am. Rep, 336; Bennett v, 
 
 2 See Farmer v. Farmer, 39 N. J. Beam, 43 Mich. 346, 36 Am. Rep. 443. 
 
 Eq. 811. 5 Campbell, J.j'inSheahan V.Barry, 
 
 ' Lord Mansfield in Morton v. Fenn, 27 Mich. 317. ' 
 
 3 Doug. 211. 
 
•208 "WKONGS IN CONFIDENTIAL EELATIONS. 
 
 Some courts have declared that the woman, having given 
 •consent, is injpa/ri delicto and is not aRowed to complain, of se- 
 duction.^ Of this it may be remarked, that while there is con- 
 -sent here, so there is also in other cases of fraud, for it is by 
 obtaining consent that frauds are accomplished. 
 
 Both parties are entitled to a fair disclosure of such dealings 
 ^s are expressly designed to aflfect their own interests, and any 
 such secret conveyance of one of the parties as would materially 
 diminish the rights in the property which the other had reason 
 to expect he or she would acquire by marriage, is a breach of 
 the confidence of the relation. And where either party to the 
 contract of marriage secretly conveys away his or her property 
 or any considerable portion with intent to defraud the other 
 of such rights therein as, but for the conveyance, would be ac- 
 quired by marriage, this, if not discovered until after the mar- 
 riage takes place, will be treated in equity as a fraud upon the 
 other, and such relief will be given as the circumstances of the 
 case wUl admit of and as may be found suitable.^ If the in- 
 tended deceit is discovered before the marriage takes place, the , 
 party may withdraw from the engagement or may consummate 
 the marriage, thereby waiving the objection.' 
 
 Another fraud frequently practiced is where one of the par- 
 ties makes use of the confidences and affection of the relation to 
 obtain the other's property, employing .some plausible but 
 fraudulent pretense for the purpose, and in this relation one 
 party is perhaps as liable to be betrayed by overconfidence as 
 the other. It is a strong if not conclusive badge of fraud, if, 
 after a conveyance of the property has been obtained as a gift 
 or for an inadequate consideration, the donee or grantee refuses 
 to complete the marriage.* 
 
 Parent and child. — The authority of the parent to require 
 and enforce obedience of the child during minority, coupled 
 with the natural affection, may be expected in a great degree 
 to subordinate the child's will to the parents while the period 
 
 1 Weaver v. Bachert, 2 Pa. St. 80; 3 St. George v. Wake, 1 MyL & K 
 
 Burks V. Shain, 2 Bibb, 341. 610; Cheshire v. Payne, 16 B. Mon. 
 
 2Smithv. Hines, 10 Fla. 258; En- 618. 
 
 gland V. Downs, 2 Beav. 532. See * Coulson t. Allison, 3 De G., F. & 
 
 -Green v. Green, 34 Kan. 740, 55 Am. J. 521; RockafeUow t. Newcomb, 57 
 
 Kep. 256; Ferebee v. Pritchard, 112 lU. 186. 
 JT. C. 83. 
 
WKONGS m CONFIDENTIAL EELATIONS. 209 
 
 of minority continues, rurther, if the child has an independ- 
 ■ent estate, and its management is allowed to be taken charge 
 of by the parent, though this is iiregular, unless he is legally 
 appointed guardian of the estate, it is Mkely stUl further to in- 
 crease the parental influence.^ All deahngs which take place 
 soon after the child comes of age, while the parental iniluence 
 is still unimpaired, are looked upon with some degree of jeal- 
 ousy, and if they are gifts, the donee will be required to show 
 that they were spontaneous acts of the child, made with full 
 understanding of what, with respect to the property, were his 
 position and rights.* Eamily airangements not unfairly brought 
 about, and which from their nature do not suggest undue in- 
 fluence, wiU not be disturbed.' 
 
 On the other hand, so long as the parent is in full posses- 
 sion of his mental powers, a gift to his child suggests nothing 
 but the ordinary promptings of aif ection ; * but when the child's 
 becomes the guiding mind, and the parent is a dependent, all 
 dealings which are specially to the advantage of the child he 
 may justly be required to support by satisfactory evidence 
 that his own conduct in the transaction was above' reproach.' 
 
 Illegal sexual relations. — If there is a gift or a sale for an 
 inadequate consideration between parties living in illegal sex- 
 ual relations, or transactions especially beneficial to one party 
 rather-than to the other, the party benefited by it wiU be under 
 the necessity of showing that no advantage was taken and that 
 it was the result of free volition.* 
 
 Persons of weak intellect. — When one undertakes to deal 
 with a person weak of intellect, though not idiotic and not 
 mentally diseased, he is under more than the usual obligation 
 to abstain from deception. What might not be deception if 
 practiced on a person of average intellect may be fraud in 
 such a case, because it is calculated to accomplish a fraudulent 
 purpose.^ The law guards jealously the interests of such per- 
 
 1 Sears v. Shafer, 1 Barb. 408, 6 N. ^ Taylor v. Taylor, supra. 
 
 Y. 268; Findley v. Patterson, 3 B. *Millican v. MilUcan, 24 Tex. 426; 
 
 Mon. 76. Beanland v. Bradley, 3 Sm. & G. 339. 
 
 2 Turner v. CoUins, 7 L. R. Ch. App. « Highberger v. I?tiffler, 21 Md. 838, 
 339; Taylor v. Taylor, 8 How. 183; 83 Am. Dec. 593. 
 
 Baldock v. Johnson, 14 Oreg. 543. « Dean v. Negley, 41 Pa. St. 313, 80 
 
 And see Tate v. WiUiamson, L. B. 3 Am. Dec. 620. 
 
 Ch. App. 55. 'Baker v. Monk, 4 De G., J. & S. 
 14 
 
210 WEONGS IN CONFIDENTIAL KELATIONS. 
 
 sons, and where a gift is made by one " of weak mind, of easy 
 temper, yielding disposition, liable to be imposed upon — if 
 there be the least scintilla of fraud, a court of equity wiU in- 
 terpose." ^ The court would be leiss strict in requiring satis- 
 factory showing if a consideration had been paid, because the 
 presumption of fraud would weaken in proportion as the trans- 
 action was found to be equal.* 
 
 One who takes advantage of a state of intoxication to deal 
 with another, more ^specially if he himself brought about or 
 encouraged the intoxication, does so with a presumption against 
 his good faith proportioned to the depth of mental obscurity 
 caused by the condition.' 
 
 The officer of a corporation, as its agent within the scope 
 of the powers conferred upon him, stands in confidential rela- 
 tions to all the stockholders. His duties are: First, in his 
 own action to confine his operations within the limits of the 
 corporate authority; second, to furnish to the associates truth- 
 folly such information as it may belong to his position to give, 
 and to afford them such facilities as are proper for obtaining 
 information by their own investigations; thwd, to take no ad- 
 vantage of his own position to the prejudice of his associates; 
 fourth, to give no advantage to one associate over another; 
 fifth, to employ his efforts faithfully in defending the common 
 interest. 
 
 Wrongs which may result from a disregard of any of these 
 obligations, if they affect the body of the corporators alike, can- 
 not be treated as wrongs to the members severally. If the 
 managing officers exercise powers not within the scope of their 
 charter, they may in a proper case be charged personally with 
 all the consequences. But they " are not liable for mistakes of 
 judgment, even though they may be so gross as to appear to 
 us absurd and ridiculous, provided they are honest, and pro- 
 vided they are fairly within the scope of the powers and dis- 
 cretion confided to the managing body." * A wrong committed 
 
 388; Ellis v. Mathews, 19 Tex. 390, 2 Brooke v. Berry, 2 GUI, 83. 
 
 17 Am. Dec 353; HiU v. Nash, 41 Me. 3 Peck v. Gary, 27 N. Y. 9, 84 Am, 
 
 585, 60 Am. Dea 266, and cases cited Bea 220; Mansfield v. Watson, 3 
 
 in woie. Iowa, 111; Johnson v. Medlioot, 3 P> 
 
 1 Barciilo, J., in Sears v. Shaf er, 1 Wms. 130, note a. 
 
 Barb. 408, 413. See Harding v. « Spering's Appeal, 71 Pa. St. 11, 20, 
 
 fiandy, 11 Wheat. 103, 125. 10 Am. Rep. 684; EUerman v. CSii- 
 
■WEONGS IN CONFIDENTIAL RELATIONS. 211 
 
 by an officer of a corporation, whicli affects the stockholders 
 generally through their interests in the corporation, as in the 
 case of the embezzlement of funds by the treasurer, is not a 
 wrong to them as individuals, but to the corporate entity. If 
 the wrong is a corporate wrong, in which aU, the stockholders 
 are proportionately interested, the corporation should repre- 
 sent aU for the purposes of legal remedy.* Directors are not 
 the agents and bailees of a stockholder, but the agents and 
 bailees of the body politic whose officers they are.* If it 
 should happen that the officers charged with wrong are a gov- 
 erning board of the corporation, and the very parties who 
 should represent its interests in redress of its wrongs, a single 
 shareholder may bring the delinquent or fraudulent officers to 
 account in equity ; or may obtain redress from others who have 
 wronged the corporation, but against whom the directors re- 
 fused to proceed.' Such a suit, however, is instituted, not on 
 behalf of the complainant alone, but of aU stockholders, and 
 stands as a substitute for a suit by the corporation itself.* 
 
 Illustrations of oats constituting hreacTies of duties referred 
 to above: 
 
 1. If the managers of a corporation knowingly exceed the 
 corporate powers, this is a species of fraud upon the corpora- 
 tors, for which the latter may have appropriate relief in equity. 
 Probably, also, an individual corporator might obtain relief 
 from his obligation to the company, and permission to with- 
 draw, where powers were exercised, which, when he came in, 
 he had no reason to understand the corporation was to assume.' 
 
 2. The regular reports required of the managing board, and 
 perhaps of other officers, are supposed to state facts upon 
 which the associates, may act in their corporate meetings and 
 also in individual transactions ; and the statement of impor- 
 tant facts, purposely made untrue, is a fraud when acted upon. 
 The right of a corporator to inspect the books of the corpo- 
 ration at all reasonable times is an individual right, and if de- 
 
 cago Junction, eta Co., 49 N. J. Eq. Butts v. "Wood, 37 N. y. 317; Dun- 
 
 217. phy V. Traveller, etc. Asso., 146 Mass. 
 
 1 Talbot V. Soripps, 31 Mich. 268. 495. 
 
 2 Smith V. Hurd, 12 Met. 371,46 *See Robinson v. Smith, 3 Paige, 
 Am. Dec. 690. 232; Dodge v. Woolsey, 18 How. 331. 
 
 » Hodges V. New Eng. Screw Co., 1 » Ship's Case, 2 De G., J. & S. 544. 
 E. L 312, 53 Am. Dec. 624 3 K. L 9; 
 
212 WBONGS IN CONFIDEimAL EELATIONS. 
 
 nied him he may by mcmda/mus obtain it; and if this proceed- 
 ing be not speedy enough to make the inspection accompli^ 
 the intended purpose, the incorporator should also be entitled 
 to redress in a special action on the case against the custodian 
 of the books, or, if the refusal was under corporate orders, 
 against the corporation itself. 
 
 3. Under this head the general principle is that, whaterer 
 the corporate oflBoer does officially, it is his duty to do with 
 judicial fairness as regards his own interests and those of his 
 associates, and whatever advantage he takes of his own posi- 
 tion for his individual benefit to the prejudice of others is a 
 fraud. If the directors of an embarrassed railway company 
 proceed, under proper authority, to sell the road, but do so in 
 a way calculated not to produce its value, and become pur- 
 chasers themselves, the sale is a fraud upon their trust and 
 may be vacated on that ground.^ So it is not competent for a 
 director in a railway company to become contractor with the 
 company for constructing the road; and it makes no differ- 
 ence that no actual fraud was intended in the transaction, or 
 that it can be shown that the corporation suffered no loss.^ 
 The policy of the law wiU not permit the int^rity of the 
 trustee to be put to the trial of transactions where duty to his 
 cestui que fo-wsi would stand opposed to interest.' So payments 
 made by directors to the company in property at more than 
 its value will not be suffered to stand.* 
 
 Nevertheless, the managing officers may deal with a stock- 
 holder in respect to his shares and become purchaser thereof, 
 provided that in their negotiations there is no deception and 
 no concealment of the facts which the seller has a right to 
 know. Nor would the officer be under obligation, in such 
 dealings, to put before the stockholder the facts within his 
 knowledge which might influence the negotiations, any further 
 than would be required of his position by his duty to the stock- 
 holders generally, irrespective of the negotiations. A director 
 may buy and sell stock in the market; and it has been held 
 
 1 Jackson v. Ludeling, 21 WalL 616. ^ Osgood v. King, 43 Iowa, 478. In 
 
 ^FUnt, etc. R Co. v. Dewey, 14 further illustration see York, eta 
 
 Mich. 477. R Co. v. Hudson, 16 Beav. 485; Butts 
 
 s See Palmer v. C. H. Cemetery, 133 v. Wood, 37 N. Y. 317; Cook v. Sher- 
 
 N. T. 439. man, 20 Fed. Rep. 175. 
 
WKONGS IN CONFIDENTIAL EELATIONS. 213 
 
 that a director, not being trustee for th,e sale of the share- 
 holder's stock, may buy of a stockholder his shares without 
 any such obligation to disclose important facts as would rest 
 upon an agent dealing with his principal.^ 
 
 4. "Where directors or managing officers perpetrate frauds 
 on associates by allowing advantages to one or more over the 
 rest, the proper remedy is usually found in compelling the 
 favored stockholder to surrender what he has thereby fraudu- 
 lently gamed.* An agreement, by which a subscription is to 
 be colorable merely, to induce others to subscribe, is fraudu- 
 lent and void, and the subscription may be enforced.' 
 
 It has been decided that if the managers of a bank allow the 
 stockholders to withdraw its funds to the g,Tnount of thdu* sub- 
 scriptions, and to use them without security, such conduct is a 
 fraud upon the creditors of the ^ank and renders the direotois 
 liable in equity for the amount withdrawn.* So where the 
 president of a bank makes loans of the bank's funds to irre- 
 sponsible pOTSons without security, having a private interest 
 of his own to advance thereby, the bank may charge him per- 
 sonally with, the loans and recover the amount in a suit at law;* 
 
 Trastees. — The case of a trustee is the representative illus- 
 tration of those in which the law demands the utmost good 
 faithj because of con&dential relations. However the ti<ustee 
 may be appointed, be is chosen because of the confidence felt 
 and the trust reposed, and the law imposes upon him the oWi'- 
 gation of perfect fidelity to the trust, and intesgrity in its per- 
 fonuance, and he must discharge the trust without suffering 
 his own interest in any manner to distract his attention. 
 
 It is a fundamental rule that a trustee shall not deal in a 
 trust fund for his own interest. If the cestui gm 1/rust be a 
 person ia law svijxuris, there is no absolute impediment to deal- 
 ings between himself and the trustee in respect to the trust prop- 
 erty or the trustee's duties; but such cases almost always af- 
 ford UBi}sual facilities for deception and fraud. It has been held 
 that, to sustain a purchase by trustee from cestui que trust, the 
 
 1 Carpenter T. Danforth, 53 Barb. 'New Albany, eta R. R. Ga -v. 
 581; Tippecanoe C!a v. Eeynolds, 44 Fields, 10 Ind. 187. 
 
 Ind. 509. 4 Bank of St. Marys y. St John, 
 
 2 See Melvin v. Lamar Ins. Ca, 80 25 Ala. 566. 
 
 HL 446. * First Kal Bank v. Beed,'36«Mich. 
 
 263. 
 
214 WEONGS Df CONTIDENTIAI, EELATIONS. 
 
 *' trustee must have acted in entire good faith. He must show 
 that he made to the cestui que trust the fullest disclosure of all 
 he knew in regard to the subject-matter, and that the price he 
 paid was adequate." ^ Presumptions are against such dealings, 
 and if the trustee ventures upon them he takes upon himself 
 the burden of showing that he dealt fairly, and after putting 
 the other party on a footing of equality in respect to the 
 property.* Where the trustee himself makes sale of trust prop- 
 erty under the authority vested in him as such, if he becomes 
 the purchaser himself, either directly or through a third per- 
 son, the purchase is, by construction of law, fraudulent; and 
 no showing of good faith, or of payment of the f uU considera- 
 tion, can sustain it against the objectionof the cestui gue trust, 
 so long as the property remains in his hands, or in the hands 
 of one who takes it with knowledge or notice of the facts.' In 
 such case, when the facts come to the knowledge of the cestui 
 que trust, he may either affirm the sale or repudiate it; and if 
 he chooses the latter course, he may oaU upon the trustee to 
 restore the property, or, if that has become impossible, to ac- 
 coimt for whatever benefit he has received from the purchase. 
 Long acquiescence in the sale, with full knowledgie of the facts, 
 may of itself amount to an affirmance.* 
 
 If a trustee has occasion to make purchases for the purposes 
 of the trust, he can no more buy of himself than he could sell 
 to himself.* 
 
 The above rules apply to executors and administrators, cred- 
 itors, assignees in bankruptcy or insolvency, partners, agents 
 for the sale of property, and all other persons occupying sim- 
 ilar relations. "Wherever the reason of the rule applies, there 
 the rule is in f uE force. An agent empowered to sell property 
 for his principal cannot become a purchaser directly,' nor by 
 indirection through anotheir.' A trustee is liable as for a fraud 
 
 1 Spencer & Newbold's Appeal, 80 * Marsh v. 'Wliitmore, 31 WalL 178; 
 
 Pa. St. 317. Miles v. Wheeler, 43 IlL 123. 
 
 ■■i Coles V. Trecothick, 9 Ves. 334; sgee Bentley v. Craven, 18 Beav. 
 
 Brown v. Cowell, 116 Mass. 461; 75. 
 
 Graves v. Waterman, 63 N.T. 657. 'Ames v. Pt. Huron, etc. Co., 11 
 
 8 Lowther v. Lowther, 13 Ves. 95; Mich. 139, 83 Am. Dec. 781. 
 
 Wade V. Pettibone, 11 Ohio, 57,37 ' Dwight v. Blackmar, 3 Mich. 330, 
 
 Am. Dec. 408; MoCanta v. Bee, 1 57 Am. Deo. 130; Fisher's Appeal, 
 
 McCord's Ch. 383, 16 Am. Dec. 610, 34 Pa. St. 39. 
 and note. 
 
"VTEONGa IN CONFIDEHTTAL KELA.TIONS. 216 
 
 if he knowingly sells trust property for less than it will bring 
 in the market, even though such a sale is within a minimum 
 fixed by his instructions.* 
 
 Where the influence of a confidential relation has once ex- 
 isted, it wiU not be presumed that it passes away immediately 
 on the relation terminating, and dealings within a short time 
 thereafter wiU be scrutinized closely and may be set aside as 
 fraudulent, especially if no independent advice is taken before 
 entering into them.* 
 
 Principal and agent. — This subject has been covered partly 
 under the preceding head. The agent owes to his principal 
 the like fidelity which the trustee owes to the ees^i que trust. 
 But while the supervision of trusts belongs to equity, and 
 wrongs by trustees must generally be redressed in that court, 
 wrongs by agents wiU be redressed at law, unless in such a case 
 that equity alone can give the relief required. 
 
 The principal and agent assume towards each other certain 
 duties of care. The agent must not be negligent in the per- 
 formance of his trust, and the principal must not negligently 
 lead the agent into danger. Duty is the measure of the re- 
 quired care. 
 
 Partners are agents for each other within the scope of the 
 partnership business, and are charged with all the obligations 
 of good faith which rest upon other agents. They are also, in 
 a certain sense, trustees for each other, and will not be suffered 
 to make secret gains at the expense of the copartnership." It 
 is a fraud for one to withhold from the other a full disclosure 
 of aU the facts relating to their joint dealings, even when they 
 are proceeding to close up their affairs by arbitration.* 
 
 Attorney and client. — It has been held that if an attorney, 
 by unwarrantable acts, shall render himself liable to third per- 
 sons, and shall exact and obtain from his client indemnity 
 therefor, the indemnity wiU be set aside for presumed undue 
 influence.' The client is expected, by law, to lay open to his 
 advisor all that he may know, believe, or suspect, which it can 
 
 1 Price V. Keyes, 62 N. Y. 378; « Getty v. Devlin, 54 N. T. 403. 
 Greenfield Sav. Bank v. Simons, 133 * Beam v. Macomber, 33 Mich. 127. 
 Mass. 415. ' See Gray v. Emmons, 7 Mich. 533; 
 
 2 Hatch V. Hatch, 9 Ves. 292. And Savery v. King, 5 H. L. Gas. 655. 
 see Banlcen v. Fatten, 65 Mo. 378. 
 
216 WEONGS IN OOHTIDENTIAL EELATIONS. 
 
 possibly be important for the adviser to know in order to pre- 
 pare him to render valuable services; and this confidence is 
 protected by the law, which will not permit the adviser to dis- 
 close what has been communicated to him^ not even as a wit- 
 ness in judicial proceedings, without his employer's consent.* 
 It has been said that a member of the legal profession must 
 "consider his lips sealed with a sacred silence;"' and if he; 
 discloses " the evidence or secrets of the cause," he is liable in 
 an action on the case.' The power of courts to deal with such 
 a case summarily when it shall arise' does not preclude private 
 action. The courts may also take notice, even without their 
 attention being specially called to it by the parties concerned, 
 of the failure to observe professional faith when it concerns- 
 proceedings before them. Thus, if an attorney, while employed 
 by one party, contracts to render assistance to the other for a 
 consideration to be paid him, the courts, when the contract is. 
 brought to their attention, wiU treat it as a nullity.* These 
 rules apply to one who assumes to be legal adviser even though 
 not a licensed attorney. What is guarded against is not so- 
 much the abuse of an attorney's privilege as the abuse of a 
 confidence which has been bestowed upon him.* 
 
 Sometimes an attorney having a dealing of bargain and sale 
 ■with, another person is intrusted by the latter with the draw- 
 ing of a contract betweeh them, and here the draughtsman is. 
 bound not simply for gbod faith, but to make sure that his in- 
 terest does not mislead his judgment to the prejudice of the 
 other party. In the same way, Avhere an insurance agent draws, 
 a contract of indemnity, his principal cannot take advantage 
 of his error or mistake to the prejudice of the insured. The 
 doctrine of estoppel is often applied in those cases where the 
 insurers undertake to claim the advantage of something omitted 
 from the contract but which should have been inserted.' 
 
 Physicians and clergymen.— The common law did not ex- 
 tend to the confidence which one might bestow upon his phy- 
 
 1 1 GreenL Ev., § 237 ; Denver Tram- * Valentine v. Stewart, 15 Cai 387. 
 
 way Co. V. Owens (Colo.), 36 Pac. « Sears v. Shafer, 1 Barb. 408, 6 
 
 Kep. 848. N. Y. 268; Ladd v. Rice, 57 N. H. 
 
 «Tindall, C. J., in Taylor v. Black- 374 
 
 low, 3 Bing. N. C. 235. « Clark v. Union F. Ins. Co., 40 N. H. 
 
 8 Com. Dig., Action upon the Case 383, 77 Am. Dec. 721. 
 for a Deceit, 5, 
 
WBONGS IN CONFIDENTIAL EELATIONS. 21T 
 
 sician. or spiritual adviser the same protection which it gives- 
 in the case of the legal counselor.^ In some of the states, hoW' 
 ever, the legislature has recognized the propriety of such protec- 
 tion not only in the case of religious advisers, but of physicians 
 also.* 
 
 The law takes notice of the influence likely to be acquired 
 by the physician over his patient, and scrutinizes with jealousy 
 their dealings while the relation continues.' As the control of 
 spiritual advisers is likely to be even greater and more control- 
 ling, especially in the last illness, they should be able to show 
 that any advantage obtained for themselves, or their church 
 x)r denomination, was the result of free and voluntary action, 
 and not obtained by pmcticing in any manner upon fears 
 or hopes, or by taking advantage of spiritual or bodily weak- 
 ness.* 
 
 1 Duchess of Kingston's Case, 20 Ma 446; Feeney t. L L B. Co., 11& 
 St. Tr. 573, 2 Sm. L. C. 734 N. T. 371^ 5 L. E. A. 544. 
 
 2 See as to physicians, Grattan v. * See Ashwell v. Lomi, L. R. 2 P,- 
 Metr. Life Ins. Ca, 80 N. Y. 281; & D. 477, 4 Moak, 700. 
 
 Heuston t. Simpsmi, 115 Ind. 62; ^Hugueniny.Baseley, 14T«8.273^ 
 Gartside ▼. Conn. Mat. eta Ca, 76 Dent v. Bennett, 4 MyL & Cr. 269, 277. 
 
CHAPTER XVIIL 
 
 THE RELATION OF MASTER AND SERVANT. 
 
 There is a class of cases in which the law holds one party 
 responsible for the wrongs done or suffered by another, often 
 with no regard to his personal fault, and in many cases refus- 
 ing to permit his actual fault to be disproved. These are the 
 cases in which one person occupies toward another the relatiou 
 of master and servant. 
 
 Who is a servant. — The words "master and servant " are not 
 used in the law in their popular signification. In strictness a 
 servant is one who, for a valuable consideration, engages in the 
 service of another and undertakes to observe his directions in 
 fiome lawful business. The relation is purely one of contract, 
 and the contract may contemplate or stipulate for any serv- 
 ices and any conditions of service not absolutely unlawful. 
 But only as between the two parties to it does the contract 
 establish their relation and determine their rights. Whatever 
 obligations the relation might impose on either as respects 
 third persons could not depend on the nature of the stipula- 
 tions, but must spring from the relation itself. The liability 
 of the master, if any, cfiimot depend on what the contract of 
 service was, how long it was to continue, what compensation 
 was to be paid for it, or what mutual covenants the parties 
 had for their own protection. His control of the action of the 
 other is the important circumstance, and the particulars of his 
 arrangement are immaterial. So, when one person for the 
 time being places himself in a position of subordination to 
 another in the business of the latter, and by what he may do 
 in that condition of subordination a third person is injured, 
 such third person has a right to regard him as occupying the 
 position of a servant, and is entitled to such remedies against 
 the superior as he would^have if the contract of service in fact 
 existed.' It is for convenience, rather than because anything 
 
 1 HiU V. Morey, 26 Vt 178. 
 
THE BELATION OF MASTER AUD SEEVANT. 219 
 
 depends on an actual contract of service, that he is called a 
 servant when a third person seeks redress. A child, while 
 employed by the parent about his affairs, is to be regarded as 
 & servant. So is a mere volunteer ; and the agent in one's busi- 
 ness, whether general or special, is in law a servant ; and so is 
 the officer of a private corporation. The officer of a public 
 corporation, while discharging his official duties, is not in gen- 
 eral to be deemed a servant of the corporation. jN"either is 
 any person who is employed in any capacity in the execution 
 of its police regulations. But in the management of its own 
 property the agents of a public corporation are its own serv- 
 ants. 
 
 Liability of master to third persons — In general. — The 
 master is not to be held responsible generally for whatever 
 wrongful conduct a servant may be guilty of. Qui fadtper 
 alium, facit per se, is the maxim applicable to this relation.^ 
 That which the superior has put the inferior in motion to do 
 must be regarded as done by the superior himself, and his re- 
 sponsibility is the same as if he had done it in person. The 
 masm is not limited, therefore, to the cases in which the in- 
 jurious conduct was directed by the master himself, but covers 
 acts of omission as well as of commission, and embraces all 
 cases in which the failure of the servant to observe thei rights 
 of others, in the conduct of the master's business, has been in- 
 jurious. 
 
 Intentional acts. — The master is liable for the acts of his 
 servant not only when they are directed by him, but also when - 
 the scope of his employment or trust is such that he has been 
 left at liberty to do, while pursuing or attempting to discharge 
 it, the injurious act complained of. It is not merely for the 
 wrongful acts he was directed to do, but the wrongful acts he 
 was suffered to do, that the master must respond.^ When the 
 conductor in charge of a railway train purposely and wrong- 
 fully ejects a passenger from the cars, the railway company 
 must bear the blame and pay the damages. The company, 
 having chosen its servant and intrusted him with discretionary 
 authority and with the means of doing the injury, have through 
 
 1 McClung V. Dearbome, 134 Pa. St. 2 Griswold v. Haven, 25 N. Y. 595, 
 396, 8 L. E. A. 204 82 Am. Dea 380. 
 
220 THE EELATION OF MASTEE AlTD SEEVAITT. 
 
 his agency caused it to be done.^ But the master is liable for 
 intentional acts which constitute legal wrongs, only when that 
 which is done is within the real or apparent scope of the mas- 
 ter's business.* If the conductor of a train of cars leaves his 
 train to beat a personal enemy, or, from mere wantonness to 
 inflict any injury, this is the individual tre^ass of the con- 
 ductor which he has stepped aside from his employment to 
 commit.' In determining whether or not the master shall be 
 held responsible, the motive of the servant in committing the 
 act is important; as, whether he supposes he is furthering the 
 master's interest under discretionary authority, or is indulgmg 
 his private malice irrespective of the master's interest.* But 
 the motive is not conclusive. The test of a master's responsi- 
 bility is whether that which the servant did was something his 
 employment contemplated, and something which, if he should 
 do it lawfully, he might do in the employer's name.* " If the 
 servant, wholly for a purpose of his own, disregarding the ob- 
 jects for which he was emjdoyed, and not intendii^ by his act 
 to execute it, does an injury to another not within the scope 
 of his ranployment, the master is not liable." * But " the mas- 
 ter who puts the servant in a place of trust or responsibiliiy, 
 or commits to him the management of his business or the care 
 of his property, is justly held i^sposiiable when the servant, 
 through lack of judgment or discretion, or from infirmity of 
 temper, or under the influence of passion aroused by the cir- 
 cumstances and the occasion, goes beyond the strict line of his 
 
 • Eastern Counties E. Co. V. Broom, *See Birmingham Water-works 
 
 6 Exch. 314; Seymour v. Greenwood, Co. v. Hubbard, 85 Ala. 179, 4 Sa 
 
 7 H. & N. 355; Goddard t. G. T. R. Rep. 607. 
 
 Ca, 57 Me. 203, 3 Am. Rep. 39; Pas- ^See Johnson v. Barber, 10 U1.435, 
 
 senger R Co. v. Young, 21 Ohio St. 50 Am. Dec. 416; Rounds v. Del eta 
 
 518, 8 Am. Rep. 78. R. Ca. 64 N. Y. 129, 31 Am. Rep. 597; 
 
 * Lafitte V. New Orleans City & L. Hi Cent. R. Co. v. Latham (Miss.), 16 
 R Ca, 43 La. Ann. 34 13 L. R A, So. Rep. 756; Davis v. Houghtelin, 
 337. . 38 Neb. 583, 14 L. R. A. 787. The in- 
 
 ' Crocker v. New London, et& R. structions of the master as to the 
 
 Co., 34 Conn. 349. In further iLus- manner in which an act should be 
 
 tration of ^he propositioB, see Louis- done afford no criterion. Gregory 
 
 ville, N. O. & T. R. Co. v. Douglass, v. Oliio R R. Co., 37 W. Va. 606.. 
 69 Miss. 733, 30 Am. St Rep. 582; 6 Hoar, J., in Howe v. Newmarch, 
 
 Stephenson v. So. Pao. R Ca, 93 12 Allen, 49. And see Fraserv.Free- 
 
 Cal. 558, 15 L. R. A. 475; Davis v. man, 43 N. Y. 566, 3 Am. Rep. 740; 
 
 Houghtellin, 33 Neb. 583. McManus v. Crickett, 1 East, 106. 
 
THE EELATION OF WASTES AND SERTAHT. 221 
 
 duty or authority and inflicts an unjustifiable injury upon an- 
 other." » 
 
 Unintentional wrongs. — The wrong for which the master 
 shall respond need not be an intentional wrong. The master 
 is responsible for the servant's negligence or want of skill in 
 the course of his employment which results in an injury to 
 some third person. Every man, whether he manages his busi- 
 ness in person or intrusts it to others, is bound to see that due 
 care is observed to avoid injury to any one.^ The term "busi- 
 ness " here embraces everything the servant may do for the 
 master with his express or implied sanction. 
 
 Disobedience of orders. — It is immaterial to the master's 
 responsibility" that the injury is attributable to the servant's 
 failure to observe directions given him. It is not sufficient for 
 the master to give proper directions: he must also see that 
 they are obeyed.' If a railway company has directed that no 
 train shall leave a station until orders to that effect are tele- 
 graphed from the managing office, but a conductor, confident 
 of his ability to reach the next station without injury, puts his 
 train in motion, and collision occurs^ while the managing offi- 
 cers are chargeable witii no moral wrong, yet they must an- 
 swer for the injuries resulting to others from the disobedience 
 of their servant.* 
 
 Master's liability to servant — General rule. — In general, 
 Avhen a servant m execution of his master's business receives an 
 injury which befalls him from one of the risks incident to the 
 business^ he cannot hold the master responsible, but must bear 
 the consequences himself. It is said that the servant, knowing 
 that he will be exposed to the incidental risk, must be supposed 
 to have contiacted that, as between himself and the master, 
 he would run this risk.' " But a more conclusive reason, based 
 
 1 Rounds V. DeL etc. E. C<j)., supra; ' Phila» etc. B. Co. v. Derby, 14 
 
 Chicago, etc. B. Co. v. West, 135 ILL How. 468; Garretzen v. Duenckel, 50 
 
 330; McClung v. Dearbome, 134 Pa. Mo. 104, 11 Am. Rep. 405. 
 
 St. 396, 8 L. R A. 304; St. Louis, I. M. ^Phila. etc. R. Co. v. Defby, supra, 
 
 & S. R. Co. V. Hackett, 58 Ark. 381; And see Harriman v. Pittsburgh, 
 
 Haehl v. Wabash E, Co., 119 Mo. 335. etc. Co., 45 Ohio St. 11; Cosgrove v. 
 
 2Quimi V. Power, 87 N. Y. 585, 41 Ogden, 49 N. Y. 355, 10 Am. Rep. 
 
 Am. Rep. 393; Hays v. Millar, 77 Pa. 361; Redding v. S. C. R. Co., 3 S. C. 
 
 St. 388, 18 Am. Rep. 445; Interna- 1, 16 Am. Rep. 681. 
 
 tional & G. N. R Co. v. Cooper (Tex. ' Alderson, B., in Hutchinson v. 
 
 Civ. App.), 30 S. W. Eep. 470. Railroad Co., 5 Exch. 343. Bisks as- 
 
222 THE EEL4.TION OF MASTER JJSTD SEETANT. 
 
 on public policy, is that the opposite doctrine would be unwise,, 
 not only because it would subject employers to unreasonable 
 and often ruinous responsibilities, thereby embarrassing all 
 branches of business, but also because it ' would be an encour- 
 agement to the servant to omit that diligence and caution 
 which he is in duty bound to exercise on behalf of his master,, 
 to protect him against the misconduct or negligence of others 
 who serve him ; and which diligence and caution, while they 
 protect the master, are much better security against any injury 
 the servant may sustain by the negligence of others engaged 
 under the same master, than any recourse against the master 
 for damages could possibly afford.' " ' In many employments, 
 as in the case of carriers of persons, the public are compelled 
 to rely upon the caution and diligence of servants as the chief 
 protection against accidents which may prove destructive of 
 life or limb, and it would increase the hazards to others if the 
 servant, instead of relying upon his own vigilance for protec- 
 tion, had a remedy against the master.* 
 
 Negligence of feUow-servants. — By the weight of authority 
 the general rule extends to cases where the injury results from 
 the negligence of other servants in the same employment.' 
 But in some cases it has been held that the rule is not applica- 
 ble to the case of a servant who at the time of the injury was 
 imder the general direction and control of another who was 
 intrusted with duties of a higher grade, and from whose neg- 
 ligence the injury resulted.* It must be allowed, however, 
 that the negligence of a servant of one grade is as much one 
 of the risks of a business as the negligence of a servant of any 
 other; and it seems to be in accordance with sound policy that 
 the servant should feel it to his interest not only to be not 
 
 sumed are not only those necessarily E. Co., 35 Elan. 293; Kean v. Det. 
 
 incident to the business, but those Copper, etc. Co., 66 Mich. 277; Naylor 
 
 which commonly attend it. Gulf, v. Chicago, etc. R Co., 53 Wis. 661. 
 C.&S.F. E.Cav.Kizziah,86Tex.81. SBartonshiU Coal Ca v. Keid, 3- 
 
 1 Abinger, Ch. B., in Priestly v. Macq. H. L. 266; FarweU v. Boston, 
 
 Fowler, 3 M. & W. 1. And see EL etc. R. Ca, 4 Met 49, 38 Am. Dec. 
 
 Cent. R. Co. v. Cox, 21 EL 20; Lawler 389; Laning v. N. Y. C. R Coi, 49' 
 
 V. Androscoggin R Ca, 63 Me. 463,. 16 N. Y. 531, 10 Am. Rep. 417. 
 Am. Rep. 492. * Little Miami R Ca v. Stevens, 
 
 3 For illustrations, see Gibson v. 20 Ohio, 415; Pittsburgh, etc. R Co^ 
 
 Erie R Ca, 63 N. Y. 449, 20 Am. v. Deyinney.l? Ohio St. 197. 
 Rep. 552; Sanborn v, Atchison, etc. 
 
THE EELATION OF MASTEE AND SEKVANT. 225 
 
 negligent himself, but also to guard against, as far as practi- 
 cable, and to report to his employer, if needful, any negligence 
 of others in the same employment.^ 
 
 It is also in accordance with the weight of authority that 
 the general rule applies to the case of a servant injured by the- 
 neghgence of another, who, though employed in the same gen- 
 eral business, had his service in some distinct branch of it ; as 
 in the case of a laborer on the track of a railroad injured bj 
 the carelessness of an engine driver.^ 
 
 Independent contractors. — In England it has been held that 
 the master is not hable for an injury caused by the negligence 
 of one of his servants to the servant of a subcontractor who 
 is engaged in the perforn5ance of a part of the same work.*^ 
 But this rule can apply only where the subcontractor is under 
 the direction and control of his employer, having some particu- 
 lar part of the work to do under a special arrangement, while 
 the others work generally in the employment as directed.* In 
 general it is entirely competent for one having any particular- 
 work to be performed to enter into an agreement with an in- 
 dependent contractor to take charge of and do the whole work,, 
 employing his own assistants, and being responsible only for 
 the completion of the work as agreed. He must not, however, 
 
 1 See Gallagher v. Piper, 16 C. B. same general purpose. For valuable- 
 
 (N. S.) 669; Warner v. Erie R. Co., opinions, see Holden v. Railroad Co., 
 
 39 N. Y. 468; Malone v. Hathaway, 129 Mass. 268; Brodeur t. Valley 
 
 64 N. Y. 5, 31 Am. Rep. 573. Falls Co., 16 R. L 448. For an ex- 
 
 * See Northern Paa R. Co. v. Smith, hanstive citation of authorities on 
 
 59 Fed. Rep. 993, 8 C. C. A. 663; Nor- this question, see note to Northern 
 
 folk «& W. R Co. v. Nuckol's Adm'r Pac. R. Ca v. Smith, 8 C. C. A. 663, 
 
 (Va.), 31 & E. Rep. 343; Morgan v. and Little Rock & Memphis R. Co. 
 
 Railroad Ca, L. R 1 Q. R 149; v. Barry, 58 Ark. 198, 25 L. R A. 386, 
 
 Feltham V.England, Ii.R 3 Q.B. 33; and note. 
 
 Lawler v. Androscoggin R Co., 62 'Wiggett v. Fox, 36 E. L. & Eq. 
 Me. 463, 16 Am. Rep. 493; Wonder v. 486, 11 Exch. 833. The liability of 
 B. & O. R Co., 33 Md. 411, 3 Am. the master in these cases has been 
 Rep. 143; Baird v. Pettit, 70 Pa. St. considerably enlarged in England 
 477. But see Nashville, etc. R. Co. by the Employers' Liability Act, and 
 V. Can-oU, 6 Heisk. 347; Ryan v. in this country by statutes modeled 
 Chicago, etc R Ca, 60 lU. 171, 14 after that act. In many of the 
 Am, Rep. 33. It is sufficient that states the statutes apply to railroads 
 the servant injured, and the one only. For a, collection of the pro- 
 through whose negligence he is in- visions, see 8 C. C. A. 676 et seq. 
 jured, are engaged in the same gen- * Chicago v. Joney, 60 HL 383, 387.- 
 eral business, working toward the 
 
524 THE BELA.TION OF MASTEE AMD SEETAHT. 
 
 ■contract for that the necessary or probable effect of which 
 would be to injure others, and he cannot by any contract re- 
 lieve himself of duties resting upon him as owner of real estate, 
 not to do, or suffer to be done upon it, that which will consti- 
 tute a nuisance and therefore an invasion of the rights of 
 others.^ Observing these rules, he may make contracts under 
 which the contractor becomes for the time bang an independ- 
 ■ent principal, and is in no such sense the servant of his em- 
 ployer as to give to others rights against liie employer growing 
 out of the contractor's negligence.^ Where the contract is for 
 something that may lawfully be done, and is proper in its 
 terms, and there has been no negligence in selecting a suitable 
 -person to contract with in respect to it, and no general control 
 reserved either as respects the manner of doing the work or 
 the agents employed in doing it, and the person for whom the 
 work is to be done is interested only in the ultimate result of 
 tlte work, and not in the several steps as it progresses, the 
 latter is neither liable to third persons for the negligence of 
 the contractor as his master, nor is he master of the persons 
 employed by ihe contractor so as to be responsiMe to third 
 persons for tiieir-aegHgence.' 
 
 The term " contrstetor " is applicable to all persons following 
 £i regular independent employment in the course of which they 
 offer their services to the public to accept orders and execute 
 -commissions for aU who may employ them, in a certaJn line of 
 duty, using their own means for the purpose and being account- 
 able for final performance only. A common carrier is such a 
 -contractor, and so is a drayman.* 
 
 Master's negligence. — To the general rule is the exception 
 that if the injury results from the negligence of the master 
 himself he is responsible.' Some important instances of negli- 
 gent conduct are specified in the following pages. 
 
 1 Clark V. Fry, 8 Ohio St. 358, 73 Rep. 37; Scammon v. Chicago, 35 DL 
 
 Am. Dea 590; Hughes v. Railroad 434, 79 Am. Dec. 334 And see rules 
 
 Co., 39 Ohio St 521; Stevenson, v. of liability laid down by Seymour, J., 
 
 Wallace, 37 Grat. 77; B&wver v. in Lawrence v. Shipman, 39 Conn. 
 
 Whalen, 49 Ohio St. 69, 14 L. R. A. 586. See, also, CufE v. Newark eta 
 
 .828, and note. R. Ca, 85 N. J. 17, 10 Am. Repw 205. 
 
 2Ketcham v. Newman, 141 N. T. 'Knowlton v. Hoit(N. H.), SOAfl. 
 
 205, 24 L. R. A. 102; Cincinnati v. Rep. 346. 
 
 JStone, 5 Ohio St. 38; King v. New < De Forrest v. Wright, 3 Mich. 368. 
 
 York, etc. R Co., 66 N. Y. 181, 23 Am. » See Anglin v. Texas & Pac. B. 
 
THE KELA.TION OF MASTEK AND SEKYAKT. 225 
 
 1. The master's negligence may consist in subjecting the 
 servant to the dangers of unsafe buildings or machinery or to 
 other perils on his own premises, which the servant neither 
 knew of, nor had reason to anticipate, or to provide against, 
 "when he entered the employment or subsequently. 
 
 The owner of real estate is not bound to provide safeguards 
 for wrong-doers, but he is bound to take care that those who 
 come upon his premises by his express or implied invitation be 
 protected against injury resulting from the unsafe condition of 
 the premises, or from other perils the existence of which the 
 invited party had no reason to look f or.^ And whether invited 
 upon his premises by the contract of service, the calls of busi- 
 ness, or by direct request, is immaterial. And the master must 
 respond to his servant for failure to exercise ordinary care and 
 prudence to protect him against dangers not within his knowL 
 edge and not open to observation.^ 
 
 A master is not responsible in those cases where the risks 
 are apparent, and are voluntarily assumed by a person capable 
 of understanding and appreciating them.^ No duty can rest 
 upon an employer to guard against every contingency, or to 
 guaranty that accidents shall not result to those in his service.^ 
 The age, construction and state of repair of buildings and the 
 different methods of conducting business must be taken into 
 account by a servant or any other person doing business with 
 the proprietor. Every manufacturer has a right to choose the 
 machinery to be used in his business, and to control that busi- 
 ness in the manner most agreeable to himself, provided he does 
 
 Ca, 60 Fed. Rep. 553; Mo.,K. & T. R. even though the master neglected 
 
 Co. of Texas v. Hamilton (Tex. Civ. reasonable precaution the servant 
 
 App.), 30 S. W. Rep. 679. cannot recover, if before the injury 
 
 1 See opinion of Orton, C. J., in he knew of the danger, either from 
 
 Bright v. Bamett & Record Co., 88 his own observation or from inf or- 
 
 Wis. 229, 26 li. R. A. 524 mation derived from others. Truntle 
 
 ''Marshall v. Stewart, 2 Macq. H. v. North Star, etc. Co. (Minn.), 58 N. 
 
 li. 20; Coughtry v. Globe Woolen W. Rep. 832; Mundle v. Hill Mfg. 
 
 Co., 56 N. Y. 124, 15 Am. Rep. 387; Co., 86 Me. 400. 
 
 Cielfield v. Browning, 29 N. Y. Supp. ' See Gowen v. Harley, 56 Fed. 
 
 710; Nason v. West, 78 M& 253; El- Rep. 973; Bennett v. Tintic Iron Co., 
 
 ledge V. Nat. aty & O. R. Co., 10) 9 Utah, 291; Larich v. Moies (R. I.). 28 
 
 CaL282. Railroads are liable for a AtL Rep. 661 ; Foley v. Pettee Mach. 
 
 failure to keep the raad-bed in re- Works, 149 Mass. 294, 4 L. R. A. 51. 
 
 pair. Chicago, etc. R. Co. v. Swett, ^ Fosburg v. Phillips Fuel Co. (la.), 
 
 45 HL 197, 92 Am. Dec. 206. But 61 N. W. Rep. 400. 
 15 
 
226 THE EELATION OF MASTEE AHD SEEVAirr. 
 
 not thereby violate the law of the land.^ But it is negligence 
 not to exercise ordinary care that the building and machinery^ 
 such as they are, shall not cause injury, and that the business 
 as conducted shall not inflict damage upon those who them- 
 selves are guilty of no neglect of prudence. - 
 
 2. The master may also be guilty of actionable negligence 
 in exposing persons to perils in his service, which, though opea 
 to observation, they, by reason of their youth or inexperience^ 
 do not fully understand and appreciate, and in consequence of 
 which they are injured.^ The case of an infant, while it is no 
 , exception to the general rule which exempts the master from re:/ 
 sponsibility for injuries arising from the hazards of his service,'^ 
 is not subject to the same tests of the master's culpable niegli- 
 gence which are applied in the case of persons of maturity and 
 experience. In the case of a child it is the duty of the em- 
 ployer to take special precautions. "Mere representation in 
 advance that the service generally, or a particular thing con- 
 nected with it, was dangerous, might give him no adequate 
 notice or understanding of the kind and degree of the danger 
 which would necessarily attend the actual performance of the 
 work." * And in general the employer is required to show good 
 
 iHayden v. SmithviUe Mfg. Co., 2LebberiHgv.Struthers,157Pa.St 
 
 39 Conn. 548, 558; Coombs v. New 313; Veginan v. Morse, 160 Mass 143; 
 
 Bedford Cordage Co., 102 Mass. 573, Davis v. St. L., L M. & a R Ca, 53 
 
 3 Am. Rep. 506; ^gon v. T., A. A. Ark. 117, 7 L. R A. 288. 
 
 &N. M.RCo.,97Jaich. 365; Kphler 'King v. Boston, eta R Ca, 9 
 
 V. Schwenk, 144 Pa. St. 348, 13 L. R Cush. 113; Fones v. PhiUips, 39 Ark. 
 
 A. 374 And see Woodley, v. Met- 17; Viets v. Toledo, eta R Ca, 55 
 
 ropoUtan R Ca, L. R 3 Ex. D. 384 Mich. 120; Crown v. Orr, 140 N. Y. 
 
 The master is not liable if he uses 450; Toledo, St. L. & K. C. R Ca 
 
 appliances from the use of which v. Trimble, 8 Ind. App. 333, 35 N. E. 
 
 an injury could not be reasonably Rep. 716. A servant who is a minor 
 
 anticipated- Burke v. Witherbee, 98 must be held to have assumed the 
 
 N. Y. 562; Kitteringham v. Sioux risk if, "in view of his age, InteUi- 
 
 City, etc. Co., 63 Iowa, 385; Hull v. gence, discretion and judgment, he 
 
 Hall, 78 Me. 114; Simmons v. Chi- ought reasonably to have known and 
 
 cago, etc. Co., 110 HL 340; Lehigh & understood the dangers to which he- 
 
 W. Coal Co. V. Hayes, 128 Pa, St. 394 was exposed in his employment" 
 
 5 Ii. R A. 441. Negligence cannot Luebke v. Berlin Mach. Works, 88 
 be imputed from the use of methods "Wis. 443; Craven v. Smith, 89 Wis. 
 or machinery in general use in the 119. 
 
 business. Reese v. Hershey, 163 Pa. * Grizzle v. Frost, 3 F. & F. 632; 
 St. 353. And see Rooney v. Sewall Coombs v. New Bedford Cordage 
 
 6 D. C. Ca, 161 Mass. 153. Co., 103 Mass. 573, 3 Am. Eep. 506; 
 
THE RELATION OF MASTEK AND SEEVANT. 227 
 
 faith and reasonable prudence tinder the special circumstances 
 of the particular case, of which infancy, if it exists, may per- 
 haps be more important than some others.^ 
 
 3. The master may also be negligent in commanding the 
 servant to go into exceptionally dangerous places, or to subject 
 himself to risks which, though he may be aware of the danger, 
 are not such as he had reason to suspect or consider as being 
 within the employment. 
 
 One who voluntarily engages in a dangerous employment 
 should not complain because it is dangerous ; ^ but he ought 
 not to be made to bear other than incidental risks which he 
 is directed by the master to assume, merely because he did not 
 take upon himself the responsibility of disobedience. The 
 servant might also reasonably assume that the master, whose 
 duty it was not to send him into danger, knew when he gave 
 the command that the dangers were not such or so great as 
 the servant had apprehended.' And here it is important to 
 bear in mind the eflFect which the order of a master would have 
 upon the will of a child of immature years and experience.* 
 
 4r. The master may also be negligent in not exercising ordi- 
 nary care to pit)vide suitable and safe machinery or appliances, 
 or in making use of those which he knows have become defect- 
 ive, but the defects in which he does not explain to the serv- 
 ant, or in continuing ignorantly to make use of those which 
 are defective, where his ignorance is due to a neglect to use 
 ordinary prodence and diligence to discover defects.* The 
 master does not warrant the strength or safety of his machin- 
 
 Bartonshill Goal Ca v. McGuire, 3 dinary risks. Northwestern Fuel 
 
 Macq. H. L. 300; Hinckley v. Horaz- Ca v. Danielson, 57 Fed. Rep. 915; 
 
 dowski, 133 IlL 359, 8 L. R A. 490; Baxter v. Roberts, 44 CaL 187, 13 
 
 Brazil, eta Ca v. Gafifney, 119 Ind. Ain.Rep.610. And see Consolidated 
 
 455, 4 L. R. A. 850. Coal Ca v. Haenni, 146 la 614 
 
 1 See Chicago, eta R. Ca v. Bay- ' See Lalor v. Chicago^ eta R. Ca. 
 
 field, 37 Mich. 205; Patterson v. Pitts- 53 IlL 401, 4 Am. Rep. 616; Stephens 
 
 burgh, eta R Ca, 76 Pa. St 389, 18 v. Hannibal, eta Ca, 86 Ma 221. 
 
 Am. Bep. 413; Cleveland Rolling Mill < Houston v. Brush, 66 Vt 331. 
 
 Ca ▼. Coirigan, 46 Ohio St 383, 3 L. And see George H. Hammond Co. v. 
 
 E. A. 385. Johnson, 38 Neb. 344; Kansas C. & 
 
 »See Williams v. dough, 3 a & P. R. Ca t. Ryan, 52 Kan. 637. 
 
 N. 258; Malone v. Hawiey, 46 CaL ' Railroad Ca v. Fort, 17 WaU. 553; 
 
 409. But the master should notify Northern P. Coal Co. v. Richmond, 
 
 the servant of extrinac and extraor- 58 Fed. Rep. 756. 
 
328 THE EELATION OF MASTER AND SEEVANT. 
 
 ery or appUances,' but he is responsible if an in jury, results to 
 Ms servant through his failure to exercise such reasonable care 
 and prudettoe in selecting or ordering^ what he requires in his 
 business as every prudent man is expected to employ in provid- 
 ing himself with the conveniences of his occupation." He 
 cannot delegate this duty so as to relieve himself from the 
 contingent liability in case of failure in performance.' 
 
 5. The master's negligence may also consist in employing 
 servants who are wanting ia the requisite care, skill or pru- 
 dence for the business intrusted to them, or in continuing such 
 persons in his employ after their unfitness had become known 
 to him, or when, by the exercise of ordinary care, it would have 
 been known.* The obligation to employ suitable servants is 
 precisely the same as that to provide suitable machinery and 
 appliances for the business. And to continue in the employ- 
 ment an incompetent servant after his incompetency is known, 
 or, by the exercise of due care, might have been known, "is as 
 much a breach of duty*, and a ground of liabihty,,as the orig- 
 inal employment of an incompetent servant." ' 
 
 6. It is also negligence fpr which the master may be held 
 responsible^, if, knowing of any peril which is known to the 
 servant also, he fails to remove it in accordance with assurances 
 made by him to the servant that he will do so. If the servant 
 refrains from abandoning the service in consequence of assur- 
 
 1 Watts V. Hart, 7 Wash. 178; Eep. 704; Norfolk & West R Co. v. 
 Essex Co. Electric Co. v. KeUy (N. J.), Hoover (Md.), 25 L. R. A. 710. And 
 29 AtL Rep. 427. see note to this last case for a citation 
 
 2 See Readhead v. Midland R. Co., L. of many authorities illustrating the 
 R. 2 Q. B. 412; Ladd v. New Bedford propositions of this paragraph. 
 
 R. Co., 119 Mass. 413, 20 Am. Rep. 331; ^Gray, J., in Gilman v. East R 
 
 Columbus, etc. R Co. v. Troesch; 68 Co., 10 AUen, 233. See, also, Laning 
 
 111. 545, 18 Am. Rep. 578; Keegan v. v. N. Y. C. R Co., 49 N. Y. 531; ffilts 
 
 West R Co., 8 N. Y. 175, 59 Am. Dec. v. Chicago, etc. R Co., 55 Mich. 437; 
 
 476; Noyes v. Slnith, 28 Vt. 59; Ohio & M. R Co. v. Collam, 73 Ind. 
 
 Reilley v. Campbell, 59 Fed. Rep. 990. 261, 38 Am. Rep. 134; Coppins v. N. 
 
 i! Mullin V. California Horse Shoe Y. C. & H. R Co., 122 N. Y. 557. The 
 
 Co. (Cal.), 38 Pac. Rep. 535. master is, in general, not bound to 
 
 * See Hutchinson v. Railroad Co., 5 discharge a servant charged with 
 
 Exch. 843; Moss v. Pac. R Co., 49 incompetency without investigation. 
 
 Mo. 167, 8 Am. Rep. 126; EUedge v. But there must be no unnecessary 
 
 Nat. City & O. R Co., 100 CaL 383; delay. Lake Shore «& M. S. R Co. v. 
 
 Consolidated Coal Co. v. Haenni, 146 Stupak, 133 Ind. 310. 
 UL 614; So. P. Co. v. Burke, 60 Fed. 
 
THE EELATIOK OF MASTEE AHD SEEYAHT. 229 
 
 ances that the danger shall be removed, he does n6t, by 
 continuing in the employment for a time which might be rea- 
 sonably allowed for the performance of the promise, engage to 
 assume the risks, and the master is not in the exercise of ordi- 
 nary care, unless or until he makes his assurances good.^ 
 
 7-. If a servant is injured by the negligence df a fellow-serv- 
 ant and that of the master combined, he may recover of the 
 master for the injury ; ^ for the master is at least one of two 
 joint wrong-doers in such case, and as such is responsible under 
 rules heretofore given. 
 
 8. As the servant only undertakes to assume the hazard of 
 his own employment, it must follow that if the master carries 
 on another and wholly distinct business, an injury occasioned 
 by the negligence of a servant in such other business, not being 
 within the contemplation of the employment, will give grounds 
 for an action under the same circumstances which would render 
 liable any stranger who might have been the employer of the 
 negligent servant. 
 
 It appears from the above that the master is liable in all 
 cases where the injury has resulted from his own negligence, 
 and not from any of the customary risks of the employment. 
 And when he delegates his authority with respect to the em- 
 ployment of proper servants, the selection of suitable tools, 
 machinery, etc., he is responsible for a want of proper caution 
 on the part of the agent as for his own personal negligence.' 
 
 But a corporation can manage its affairs only through oflB- 
 cers and agents, and the question arises, whose negligence shall 
 be imputed to the corporation as the negligence of the princi- 
 
 1 See Patterson V. Wallace, 1 Macq. 100 U. S. 700; Elmer v. Locke, 135 
 
 H. L. 748; Patterson v. Pittsburgh, Mass. 575; Northwestern Fuel Co. v. 
 
 etc. R. Co., 76 Pa. St. 389, 18 Am. Danielson, 57 Fed. Rep. 915; Cincin- 
 
 Rep. 413; Graham v. Newburg Orrel nati, N. O. & T. P. R. Co. v. Clark, 57 
 
 Coal, eta Co., 38 W. Va. 273. The Fed. Rep. 135; Norfolk & W. R. Co. 
 
 servant probably would not be able v. Nuokol's Adm'r (Va.)J 31 S. E. Rep. 
 
 to recover if he continued to work 343; Lutz v. Atlantic & P. R. Co. 
 
 though the danger was so imminent (N. M.), 16 L. R. A. 819; Hunn v. 
 
 and immediate that a man of ordi- Mich. Cent. R. Co., 78 Mich. 513. 
 
 nary prudence would have aban- ^pord v. Fitchburg R. Co., 110 
 
 doned the work. Rothenberger v. Mass. 340, 14 Am. Rep. 598; Chicago, 
 
 Northwestern, etc. Co. (Minn.), 59 etc. R. Co. v. Jackson, 55 111. 493, 8 
 
 N. W. .531. Am. Rep. 661 ; Corcoran v. Holbrook, 
 
 -' Grand Trunk R. Co. v. Cummings, 59 N. Y. 517, 17 Am. Rep. 360. 
 
230 THE RELATION OF MASTEE AKD SEKVANT. 
 
 pal itself? And upon examination it would seem that the law 
 could go no further than to hold the corporation liable for the 
 acts and neglects of the officer exercising the powers and au- 
 thority of general superintendent, but that for these it ought 
 to respond to its servants as for its own acts or nt^lects.* 
 ""When . . , the business is of such a nature that it is 
 necessarily committed to agents, as in the case of corporations, 
 the principal is liable for neglects and omissions of the one 
 charged with the selection of other servants in employing and 
 selecting such servants, and in the general conduct of the busi- 
 ness committed to his care." ^ 
 
 And if the master places the servant under the orders of an- 
 other who requires him to perform a dangerous service which 
 he has not undertaken for, whereby he is injured, the wrong- 
 ful act is properly attributable to the master himself.' 
 
 Contributary negligence.^ The servant cannot recover from 
 the master for an injury claimed to have been occasioned by 
 the latter's negligence if his own. negligence contributed with 
 that of the master in producing the injury.* And if the servant 
 sues the master for an injury which has resulted from a peril 
 which had come to the knowledge of the plaintiff, and ought 
 to have been known to the master, it may properly be held to 
 be contributory negligence on the plaintiff's part if he failed 
 to report it.* 
 
 Where the servant claims to recover on the ground of the 
 master's negligence, the burden of proof wiU be upon him, not 
 only because as a plaintiff he must make out his case, but also 
 because aJl presumptions will favor the proper performance of 
 duty.* 
 
 iSee Mattise v. Consumers' Ice v. Ma, K & T. R Ca (Tex. CSv. 
 
 Mfg. Co. (La.), 16 Sa Rep. 400. App.), 30 S. W. Repi 85. 
 
 2 Malone v. Hathaway, 64 N. T. 5, * Ladd v. New Bedford, etc. R Ca, 
 
 S, 21 Am. Rep. 573. 119 Mass. 412, 20 Am. Rep. 331; St 
 
 s Mann v. Oriental Print Works, 11 Lonis, etc. R. Ca t. Britz, 72 UL 356; 
 
 R. L 152. Jenniijgs V. Tacoma R & Motor Ca, 
 
 * West, etc. Co. v. Adams, 55 Ga. 7 Wash. 375; Breig v. C. & W. M. R 
 
 379; Cooper v. Butler, 103 Pa. St Ca, 98 Mich. 222; Richmond &D.R 
 
 412. Disobedience of rules provided Co. v. Mitchell, 93 Ga. 77. 
 
 to insure the safety of employees is ^See Oilman v. East R Ca, 10 
 
 such negligence. Ford v. C, R L & Allen, 233; Pingree v. Leyland, 135 
 
 ,P. R Ca (la.), 34 L. R A 637, and Mass. 398; Murphy v. St LouiE^ etc. 
 
 cases cited in note. See, also, Fritz Ca, 71 Ma 202. 
 
THE KELATIOH OF MASTEK AKD SEeAuT. 231 
 
 General summary. — To sum up, the rule that the master 
 is responsible to persons who are injured by the negligence of 
 those in his service is subject to this general exception : that 
 he is not responsible to one person ia his employ for an injury 
 occasioned by the negligence of another in the same service, 
 unless generally, or in respect of the particular duty then rest- 
 ing upon the negligent employee, the latter so far occupied the 
 position of his principal as to render the principal chargeable 
 for his negligence as for personal fault. 
 
CHAPTEE XIX. 
 
 NUISANCES. 
 
 Definition.— An. actionable nuisance may be defined to be 
 anything wrongfully done or permitted which, injures or an- 
 noys another in the enjoyment of his legal rights.' It will be 
 noted that this definition includes any such interference with 
 a public easement, or with any other public right, as especially 
 annoys or injures an individual. In such a case the pubhc 
 nuisance becomes a private nuisance also. Any definition of a 
 nuisance must necessarily be very general, and must embrace 
 a very large proportion of those injuries that are commonly 
 redressed in special actions on the case. An attempt to classify 
 nuisances is, therefore, almost equivalent to an attempt to 
 classify the infinite variety of ways in which one may be an- 
 noyed or impeded in the enjoyment of his rights ; and new and 
 peculiar cases are arising constantly. Only a few of the most 
 important instances wiU be noticed here, and the principles 
 appUqable to them may be applied generally. 
 
 Annoyances withoat faalt. — As the definition assumes the 
 existence of wrong, those things which may be annoying and 
 damaging, but for which no one is in fault, are not to be deemed 
 nuisances, though aU the ordinary consequences may flow^from 
 them. For example, the swamps and marshes that, from their 
 exhalations, prove injurious to the health of those living near 
 them, if they exist only as they were by nature, are not nui- 
 sances. But the moment anything is done by the owner, upon 
 or in respect to the lands, which increases the deleterious effects 
 or sensibly renders his lands offensive in a new or different 
 way, he becomes responsible. There is then a nuisance on his 
 own land which exists by his wrong, and it is his duty to 
 abate it.' 
 
 1 See Paddock v. Somes, 103 Ma Barb. 166. Also, Adams v. Fopham, 
 236, 10 L. R. A. 354 76 N. Y. ^10. 
 
 ^See HartweU v. Armston& 19 
 
NDISANCES. 235^ 
 
 Nuisances which injure the realty. — Of these sohie may 
 cause only a technical injury, but if they interfere with the 
 enjoyment in its entirety of any distinct legal right, such in- 
 terference is sufficient to make them actionable. Thus, if any 
 part of one's building, though it be only a projection above- 
 the ground, extends over the neighbor's line, this is a nuisance 
 even though no damage is suffered or even anticipated from 
 it, for it constitutes an intrusion on the owner's freehold in its 
 extension upwards.^ Here, as in trespass, the insignificance of 
 the injury goes to the extent of the recovery and not to the 
 right of action. 
 
 Filthy percolations. — Where one has filthy deposits on his 
 premises he whose dirt ft is must keep it that it may not tres- 
 pass ; * therefore, if filthy matter from a privy or other place 
 of deposit percolates through the soil of the adjacent prem- 
 ises, or breaks through into the neighbor's cellar, or finds its. 
 way into his well, this is a nuisance.' The law imposes on 
 one the duty " effectually to exclude the filth from his neigh- 
 bor's' land, and not to do so is of itself negligence." Only 
 sudden and unavoidable accidents which could not have been 
 foreseen by due care would be an excuse in such a case.* 
 
 Percolating waters. — Every one has a complete right to be 
 secure against the undermining of his buildings or the destruc- 
 tion of his crops, or any other injury to his property rendering 
 it less fit for use or occupation, by the percolation of waters 
 beneath the surface caused by some wrongful act of another. 
 The wrongful act may perhaps be throwing waters from one's 
 roof so near the boundary line that they must escape upon the 
 adjacent premises ; ' or gathering waters in reservoirs not suffi- 
 ciently protected against such consequence ; ' or damming up 
 
 1 Grove v. Ft Wayne, 45 Ind. 439, shall v. Cohen, 44 Ga. 489, 9 Am. 
 15 Am. Rep. 362: Wilmarth v. Wood- Eep. 170. 
 
 cock, 58 Mich. 482. Branches of «BaU v. Nye, 99 Mass. 583. The 
 
 trees which overhang land adjoin- injury must be of a substantial 
 
 ing that on which the trees stand character. Upjohn v. Bichland, 46 
 
 constitute a nuisance. Hickey v. Mich. 542. 
 
 Mich- Cent R. Co., 96 Mich. 498, » Underwood v. Waldron, 33 Mich. 
 
 31 L. E. A. 739, and note. 333. 
 
 2 Tenant V. Gold win, 1 Salk 360, SMonson, eta Co. v. Fuller, 15 
 6 Mod. 311. Pick. 554; Wilson v. New Bedford, 
 
 ' Tenant v. Goldwin, supra; Mar- 108 Mass. 26L 
 
234 NUISAKCES. 
 
 the stream below and thus compelling the water to assume a 
 higher level. In the first two of these cases the question may 
 be one of negligence; in the third the only question is one of 
 fact. If the water is so raised that by percolation the land of 
 another is injured, the party raising it is responsible not be- 
 cause he has unreasonably, negligently, intentionally or un- 
 expectedly flowed the land of another for his own benefit, but 
 because he has done it in fact.' 
 
 Deposits upon land. — Eor one without license to step upon 
 another's estate is a trespass; for one to do any act oflE the es- 
 tate which shall cause anything to be carried or thrown upon 
 it is a nuisance. It is a nuisance if a riparian proprietor shall 
 cast into the stream earth, sand, the refuse of his business, or 
 other things, which by the flowing water are carried and de- 
 posited upon the land of a proprietor below. The tort here 
 consists in the act of committing the rubbish to the stream; 
 the deposit upon the land below is only the consequence from 
 which a cause of action in favor of a particular individual 
 arises.^ Such an occupation of the land is a taking of property 
 as much as would be an actual pedis possessio and an exclusion 
 of the owner altogether;' audit is immaterial where on the 
 plaintiflf's land the deposit is made, whether under water, or in 
 times of flood upon land usually dry ; it is enough that the 
 plaintifiPs land is to some extent occupied by that which, by 
 the wrongful act of another, is placed there.^ 
 
 Leakage from water pipes. — Where one is lawfully making 
 use of water pipes upon his own premises, or in pursuance of a 
 license or easement on the lands of another, if injuria are 
 caused by the bursting of the pipe or by leakage from other 
 cause, the proprietor of the pipes is responsible if he is guilty 
 of negligence which causes the leakage, or if he fails to ob- 
 serve due care in protecting against it, otherwise not.* 
 
 1 Pixley V. Clark, 35 N. T. 520, 531. * Little Schuylkill, etc. Ca v. Kch- 
 
 2 Little SchuylkiU, etc. Co. v. Eich- ards, supra; Robinson v. Black, eta 
 ards, 57 Pa. St 142, 146. The deposit- Co., 50 CaL 460. 
 
 ing of waste which can be allowed 5 Carstairs v. Taylor, L. B. 6 Exch. 
 
 must be no more than a reasonable 317; Ortmeyer v. Johnson, 45 HL 
 
 use of the stream. Lockwood, eta 469; Moore v. Goedel, 7 Bosw. 591, 
 
 Co. V. Lawrence, 77 Me. 297. 34 N. Y. 527. 
 
 sPumpelly v. Green Bay Co., 15 
 Waa 166, 177. 
 
NUISANCES. 235 
 
 Injuries hy the iur sting of reservoirs. — It is lawful to gather 
 water on one's premises for useful and ornajnental purposes, 
 subject to the obligation to construct reservoirs of suificient 
 strength to retain the water under all contingencies which can 
 reasonably be anticipated, and afterwards to preserve and 
 ^nard it with due care. Where a reservoir breaks away and 
 causes injury to the lower proprietor, by the decisions in this 
 country the party constructing or niainta,ining the reservoir 
 is liable, if the injury resulted through any negligence, either 
 in constructing or in subsequent attention.^ Butin the leading 
 English case of Fletcher v. Bylcmds^^ it was held that the party 
 maintaining a reservoir of water which injures another by 
 breaking away in consequence of original defects, of which he 
 was ignorant, is responsible for the injury, though chargeable 
 with no negligence. In the later case of Michols v. Ma/rslomd^ 
 a reservoir, in the construction and maintenance of which there 
 was no negligence, was broken away by a rain-fall greater and 
 more violent than any during the memol-y of witnesses. An 
 action being brought for injuries thereby done, Lord Chief 
 Justice Cockburn held the defendant liable, but in the excheq- 
 uer chamber the judgment was reversed. " This case," it was 
 said, " differs wholly from Fletcher v. Mylands. There the de- 
 fendant poured the water into the plaintiff's mine. He did not 
 know he was doing so, but he did, as much as though he had 
 poured it into an open channel which led to the mine without 
 his knowing it. Here the defendant merely brought it to a 
 place whence another agent let it loose." 
 
 The English rule then seems to be as follows : Whoever 
 gathers water into a reservoir where its escape would be in- 
 jurious to others must, at his peril, make sure that the reser- 
 voir is sufficient to retain the water which was gathered into 
 it. But, if thus sufficient in construction, the liability for the 
 subsequent escape of the water becomes a question of negli- 
 gence. The proprietor is not liable if the water escapes be- 
 cause of the wrongful act of a third party, or from vis mcyor, 
 or from any other cause consistent with the observance of due 
 
 iPixley V. Clark, 35 N. Y. 520; ^L. E. 1 Exch. 265; affirmed in 
 
 Wilson V. New Bedford, 108 Mass. L. R 3 H. L. Cas. 380. 
 
 261 ; Everett v. Hydraulic Co., 23 CaL 3 l. R 10 Exch. 255, 14 Moak, 538, 
 
 225. 542." 
 
236 NUISANCES. 
 
 and reasonable care by him. Due care is, of course, a degree 
 of care proportioned to the danger of injury from the escape. 
 The English rule as just explained does not differ greatly from 
 that of this country. 
 
 Falling waters and snows. — Every man has a clear legal 
 right to protect his premises against the faU. of rain or snowr, 
 even though incidental injury may result to his neighbor in 
 consequence. In the case of urban property he may, in erect- 
 ing buildings and in making improvements, find it needful to 
 do this, even to the extent of preventing altogether the fall of 
 rain or snow upon his grounds ; and the limitation upon his 
 right to do so is to be found only in the duty which every pro- 
 prietor of lands owes to those about him so to use his own as 
 not unreasonably to restrict the enjoyment by others of corre- 
 sponding rights. But he is not required at all events and 
 under all circumstances to protect his neighbor; and any in- 
 jury that may result notwithstanding the observance of proper 
 precaution must be deemed incident to the ownership of town 
 property and can give no right of action. If one constructs 
 his buildings so as to cast water therefrom upon the land of 
 his neighbor, he commits an actionable wrong; ^ but if .he puts 
 proper eve-troughs or gutters upon his building for leading off 
 the water from his own ground, and keeps them in proper 
 order, and is guilty of no negligence in this regard, an adjoin- 
 ing proprietor can have no legal complaint against him for in- 
 juries resulting from extraordinary or accidental circumstances 
 for which no one is in fault ; and such injuries must be left to 
 be borne by those on whom they faU.'^ 
 
 Drawing off surface water. — The drawing off of surface 
 water may affect adjoining estates, either as it deprives them 
 of the benefits of the ordinary flow in natural watei^-courses, 
 or as it increases the ordinary flow in such water-courses, or 
 as it casts water through ditches upon adjoining lands or so 
 near to them that the water, percolating through the soil, 
 causes the adjoining land to be wet and unsuited to cultiva- 
 
 1 Baker's Case, 9 Co. 536; Tucker wrong if water falling from a roof 
 
 V. Newman, 11 Ad. & EL 40; Ship- flows on a lot three feet belovrthe 
 
 ley V. Fifty Associates; 106 Mass. grade of the surrounding property. 
 
 194; Gould v. McKenna, 86 Pa. St. Phillips v. Watorhouse, 69 la. 199. 
 297. But it is not an actionable ^ Barry v. Poterjon, 48 Mich. 263. 
 
NUISANCES. 237 
 
 tion, or unproductive. Where the lower proprietor is deprived 
 of the benefit of the natural flow of mere surface water or of 
 some portion thereof, he can have no remedy ; ' and it is equally 
 well settled that one may drain Jiis lands into a natural water- 
 course, even though a lower proprietor is injured by the in- 
 creased flow. But this principle should be prudently applied^ 
 and the lower proprietor may erect any such protections as 
 may be needful to guard his lands against the additional flow, 
 provided they do not intercept the passage of water which 
 would naturally pass on to his lands.^ And it has been decided 
 in Massachusetts that one may erect barriers to prevent sur- 
 face water which has accumulated elsewhere from coming upon 
 his land, even though it'is thereby made to flow upon the land 
 of another to his loss.' And this doctrine has been approved 
 in several states.* Others, following the rule of the civil law, 
 have held that the lower estate is charged with a servitude for 
 the benefit of the uppe* estate, to permit thfe surface water to 
 flow off over it as it had been accustomed to do.' Probablv 
 everywhere an exception would be recognized in favor of the 
 owner of a town lot, who must be at liberty to cut off drain- 
 age across it, or his lot would be worthless for many purposes.* 
 Without doubt one may improve his land by filling up low 
 and wet places without incurring liability to the lower pro- 
 prietor upon whom the flow would be increased,' just as the 
 public may lawfully improve streets and public grounds, though 
 the improvement may have the effect to cast the flowing or 
 surface water upon adjoining grounds.' But a natural water- 
 
 iRawstron v. Taylor, 11 Exch. Judice, 13 La. Ann. 587; Ogburn v. 
 
 369; Curtiss v. Ayrault, 47 N. Y. 73; Connor, 46 Cal. 346, 13 Am. Eep. 313; 
 
 Boynton v. Gilman, 53 Vt 17. Boyd v. Coriklin, 54 Mich. 588; Far- 
 
 2 See Kanffman v. Griesemer, 26 rjs v. Dudley, 78 Ala. 124; Gormley 
 Pa. St. 407. V. Sanford, 52 111. 158; Gray v. Mc- 
 
 s Gannon v. Hargadon, 10 Allen, Williams, 98 CaL 157, 31 L. R. A. 593. 
 
 106. .See opinion of Bigelow, C. J., ^See Vanderwiele v. Taylor, 65 
 
 in this case. N. Y. 341. 
 
 < See Murphy v. KeUey, 68 Me. 621 ; ? Goodale v. Tuttle, 29 N. Y. 459; 
 
 Chadeayne v. Robinson, 55 Conn. Hoyt v. Hudson, 27 Wis. 656; Bangor 
 
 345; Swett v. Cutts, 50 N. H. 439, 9 v. LansU, 51 Me. 521. 
 
 Am. Eep. 276; Abbott v. Kansas 8 Martin v, Riddle, 36 Pa. St. 415; 
 
 City, eta Co., 83 Mo. 371; Hanlin v. Greeley v. Me. Cent. R Co., 53 Me. 
 
 Chicago, etc. Co., 61 Wis. 515. 200. As touching this question of 
 
 3 Lambert v. Alcorn, 144 HL 313, surface water, it is laid down as the 
 21 L. B. A. 611; Delahoussaye v. rule in Iowa that "persons exercis- 
 
238 
 
 N-UISAUCES. 
 
 course must not be stopped up and the water turned back upon 
 the lands of another proprietor.' To be a water-course, " ther& 
 must be a stream usually flowing in a particular direction, 
 though it need not flonr continually. It may sometimes be- 
 dry. It must flow in a definite channel, having a bed, sides 
 or banks, and usually discharge itself in some other stream or 
 body of water." ^ 
 
 In an important case it was held that if a ditch made by 
 the defendant for the purpose of draining his land, and which 
 terminated within sixty feet of the line of the plaintiffs, had 
 the effect to increase the quantity of water on the plaintiff's 
 land to his injury, or, -without increasing it, threw the water 
 upon the land in a different manner from what the same would 
 naturally have flowed upon it, to his injury, the defendant would 
 be liable for the injury, even though the ditch was constructed 
 by the defendant in the course of the ordinary use and im- 
 
 ing the right to improve the condi- 
 tion of their own land must exer- 
 cise it in a careful and prudent 
 manner, so as to occasion no unnec- 
 essary damage or inconvenience to 
 the servient owner." WiUitts v. Chi- 
 cago, B. & K. C. R. Co., 88 Iowa, 28 1, 
 21 L. R. A. 608. 
 
 1 Emery v. LoweU, 104 Mass. 13, 
 and cases cited; Imler v. Spring- 
 field, 55 Mo. 119. 
 
 2 Dixon, C. J., in Hoyt v. Hudson, 
 27 Wis. 656, 661. And see Ashley v. 
 Wolcott, 11 Cush. 192, 195; Stanch- 
 field V. Newton, 142 Mass. 110; Earl 
 v.DeHart,13N.J. Eq.280. A gorge, 
 in which excessive rains have im- 
 memoriaUy found outlet, is a water- 
 course. Palmer v. Waddell, 22 Kan. 
 352. But a mere depression is not. 
 Kansas City, etc. R. Co. v. Riley, 33 
 Kan. 374 And the fact that a 
 stream spreads over wide reaches of 
 marsh and swamps, on or below the 
 surface, does not militate against its 
 being a water-course in every essen- 
 tial particular, so long as it can be 
 identified as the same stream. Case 
 V. Hoirman, 84 Wis. 438, 20 L. R. A. 
 
 40; Rigney v. Tacoma Light & 
 Water Co. (Wash.), 26 L. R. A. 425. 
 la a late case it was said that "^if 
 the conformation of the land is such 
 as to give to the surface water flow- 
 ing from one tract to the other a 
 fixed and determinate course, so as 
 to uniformly discharge it upon the 
 servient tract at a fixed and definite- 
 point, the course thus uniformly fol- 
 lowed by the water in its flow is a 
 water-course, -within the meaning- 
 of the rule applicable to that sub- 
 ject." Lambert v. Alcorn, 144 111. 
 313, 21 L. R A. 611. This is advanced 
 ground, and is not -within the rule 
 laid down in the decisions generally. 
 For cases which have discussed the 
 subject in relation to swales" and de- 
 pressions, see note to Wharton v. 
 Stevens, 84 Iowa, 107, 15 L. R. A- 630. 
 The waters of a stream swollen be- 
 yond its ordinary limits by melted 
 snow and rains usual to the season 
 do not constitute surface water,, 
 which one may guard against by em- 
 bankment. Cairo, V. & C. R Co. v. 
 Brevoort, 62 Fed. Rep. 129, 25 L, E. 
 A. 527, and note. 
 
mnsANOES. 23^ 
 
 provement of his farm.* By this and similar cases ' the obliga- 
 tion of the owner of the lower estate to receive the water 
 flowing from the upper estate is confined to " waters which 
 flow naturally without the art of man; those which come from 
 springs or from rain flowing directly on the heritage, or even 
 by the natural depressions of the place," ' And so where the 
 surface waters are collected and cast in a body upon the pro- 
 prietor below, unless into a natural water-course, the lower 
 proprietor sustains a legal injury and may have his action 
 therefor.* Municipal corporations, while they are not bound 
 to construct sewers or drains to protect adjoining owners 
 against the flow of surface water from public "ways, yet if they 
 actually construct such as must carry water upon the adjacent- 
 lands, they are liable as much as they would be if they had in- 
 vaded such lands by sending in their servants, or otherwise.' 
 
 SuMerranean waters. — If one, by an excavation on his own 
 land, draws the subterraneous waters from the land of his 
 neighbor, to the prejudice of the latter, no action w^iU lie for 
 the consequent damage.* And prescriptive rights cannot be 
 gained in subterraneous waters which will preclude such exca- 
 vations on adjoining ground as may draw them oSJ If the 
 well dug by one man ruins the well or spring of his neighbor,^ 
 by drawing off its water, it is damnum absqtte injui'ia? Prob- 
 ably, however, if the subterraneous water were a stream flow- 
 ing in a well known course, the one through whose land it 
 
 1 Liivingsix)a v. McDonald, 21 Iowa, v. Port Huron, 35 Mich. 296, and 
 
 160. Eice V. EvansviUe, 108 Ind. 7; Gil- 
 
 'See Pettigrew v. EvansviUe, 35 Inly v. Madisov, 63 Wis. 518; Vale 
 
 Wis. 223; Butler v. Peck 16 Ohio St. Mills v. Nashua, 63 N. H. 136; Eych- 
 
 334; Adams v. Walker, 34 Conn. 466; licki v. St. Louis, 98 Mo. 497, 4 L. R 
 
 Hicks V. SiUiman, 93 HL 355; Mc- A. 594; Chapman v. Rochester, 1 
 
 Cormick v. Ean. C. etc. R. Co., 70 L, R A. 396, and cases cited in note.. 
 
 Mo. 359. 6 Acton v. Blundell, 13 M. & W. 
 
 'Kauffman V. Griesemer, 26 Pa. 324 
 
 St. 407, 413. And see Paddock v. ^Chasemore v. Richards, 7 H. L. 
 
 Somes, 103 Mo. 226, 10 L. R. A. 254. 349. 
 
 <See WiUits v. Chicago, B. & K 8Greenleaf v. Francis, 18 Pick. 117; 
 
 C. R Co., 88 Iowa, 281, 31 L. R A. Haldeman v. Bruckhart, 45 Pa. St. 
 
 608, and cases cited. 514; Bloodgood v. Ayers, 108 N. T. 
 
 In connection with this subject 400; Chase v. Silverstone, 63Me. 175; 
 
 the note to Gray v. McWiUiams, So. Pac. R Co. v. Dufour, 95 CaL 615^ 
 
 98 CaL 157, 31 L. R A. 593, is valuable. 1 9 L. R A 93. 
 
 5 Alton T. Hope, 68 HL 167; Ashley 
 
240 NUISANCES. 
 
 flowed would be protected against its being drawn away from 
 him.* But one claiming rights in such a stream would be 
 iinder the necessity of proving its existence an4 tracing it.^ 
 
 Nuisances in the use of water-courses. — Certain principles, 
 which apply equally to navigable and non-navigable waters, 
 <3ontrol the utilization of water in running streams. At the 
 common law one riparian proprietor acquires no superior right 
 ■over another by first appropriating the waters to his own use.' 
 In the mining states, however, where the use of water upon 
 the public domain is allowed to be appropriated to private use, 
 independent of any ownership in the soil, the right of the first 
 ^ppropriator is recognized as the superior right.* And in some 
 states by statute a riparian proprietor is aUdwed to flow the 
 lands of those above him for manufacturing purposes on mak- 
 ing compensation, " Where two or more have an equal right 
 to appropriate, and where the actual appropriation by one 
 Jiecessarily excludes all others, the first in time is the first in 
 right." = 
 
 As between the adjacent proprietors on the opposite sides of 
 the water-course, or between the upper and lower proprietors, 
 no one of them has a right to the water itself, but each of them 
 has a right to the use of the water as it passes by his estate. 
 And where the water-course divides two estates, each propri- 
 etor has a right to the use of the whole bulk of the stream, and 
 neither can carry off or divert any part of it without the con- 
 sent of the other.* Every proprietor of land on a water-course 
 
 1 See Dickinson v. Grand Junction by the same subterranean spring. 
 •Canal Co., 7 Exch. 383; Burroughs See, further, nate to So. Pac. E. Co. 
 T. Satterlee, 67 la. ^96; Hale v. Mc- v. Dufour, 19 L. R. A. 93. 
 
 Lea, 53 Cal. 578. In Lybe's Appeal, ^Dumont v. Kellogg, 29 Mich. 420, 
 
 106 Pa. St. 636, it is held that this and cases cited in opinion and in 
 
 rule does not apply where the course note. 
 
 -of the stream cannot be discovered * Atchison v. Peterson, 30 Wall, 
 
 from the surface. 507; Strait v. Brown, 16 Nev. 317. 
 
 2 Hanson v. McCufi, 42 CaL 303; And see Lux v. Haggin, 69 CaL 355. 
 Hosier v. Caldwell. 7 Nev. 363. * Gould v. Boston Buck Co., 13 
 There is a discussion of the rights in Gray, 443, 451. And see Lincoln v. 
 subterranean streams in the case of Chadboume, 56 Me. 197. 
 
 Willis V. Perry (la,), 26 L. R. A. 124, SBlanchard v. Baker, 8 Me. 353; 
 
 where it was held that one might Vandenburgh v. Van Bergen, 13 
 
 recover damages for being deprived Johns. 313; Harding v. Water Co., 
 
 of the use of a well for usual do- 41 Conn. 87. And see Moulton v. 
 
 mestic purposes, by the use for city Newburyport Water Co., 137 Mass. 
 
 water supply of another well fed 163. 
 
KTJISANCES. 241 
 
 is, as a general thing, entitled to the enjoyment and use of the 
 stream substantially in its natural flow, subject only to such 
 interruption as is necessary and unavoidable in its reasonable 
 and proper use by other proprietors.' The use may be for any 
 purpose whatsoever, within the limits of what is reasonable.^ 
 
 Diversion of water. — The upper proprietor is at liberty to 
 xiivert the water from its natural channel on his own estate at 
 will, provided he returns it again before it leaves his land and 
 allows it to pass as it naturally would, to those entitled to its 
 use below him.* To turn any portion of it into a new channel 
 Avould be an actionable injury.* He may not divert the water 
 ■even for the purposes of repair of machinery ; , though a mere 
 detention of the water for that purpose would be lawful, if not 
 under the circumstances unreasonable.' 
 
 A town or city cannot by purchase of an upper proprietor, 
 or even by legislation, acquire the right to appropriate a water- 
 course for municipal purposes without the consent of the pro- 
 prietors below, or without first appropriating their interests 
 under the eminent domain.® 
 
 Iteasondble use.— In determining the reasonableness of the 
 use, each case must stand upon its own facts. Among other things 
 may be cbnsidered the nature and size of the stream, and the 
 business or purposes to which it is made subservient. And 
 it is necessary to take into account not only the general cus- 
 toms of the country, but also any local customs along the 
 stream. Such genei-al rules should be laid down as appear 
 best calculated to secure the entire water of the stream to use- 
 ful purposes.' 
 
 1 When a stream is divided by an * Harding v. Stamford Water Co., 
 island into two distinct channels, the 41 Conn. 87; Weiss v. Oregon, etc. 
 •owner of each shore is entitled to Co., 13 Oreg. 496. 
 
 ao much of the water as naturally * Davis v. Getdhell, 50 Me. 602. 
 
 flows through the channel running ^ Wilts, etc. Canal Co. v. Swindon 
 
 by his land, and no more. Warren Water-works Co., L. R 9 Ch. App. 
 
 V. Westbrook Mfg. Co., 86 Me. 33, 36 451; Emporia v. Soden, 35 Kan. 588. 
 
 L. E. A. 384, and note. But a corporation for the improve- 
 
 2 See Wright v. Howard, 1 Sim. & ment of navigation may divert navi- 
 Stu. 190; Miller v. Miller, 9 Pa. St. 74; gable water from a riparian owner. 
 Arnold V. Foot, 13 Wend. 330; Pool Black Eiver, etc. Co. v. La 6rosse, 
 -V. Lewis, 41 Ga. 163, 5 Am. Rep. 536. etc. Co., 54 Wis. 659. 
 
 'Tolle V. Correth, 31 Tex. 363; 'Keeney, etc. Mfg. Co. v. Union 
 
 jMerritt v. Brinkerhoff, 17 Johns. 306; Mfg. Co., 39 Conn. 576. See further 
 
 Porter v. Durham, 74 N. C. 767. on this point, Davis v. Winslow, 51 
 16 
 
242 NUISANCES. 
 
 Detention of tJie water. — "While it is the general rule that 
 each riparian proprietor is entitled to the steady flow of the 
 stream according to its natural course, yet it is lawful to 
 gather the water into reservoirs, where this is done in good 
 faith,^ for a useful purpose, and with as little interference with 
 the rights of other proprietors as is reasonably practicable 
 under the circumstances.^ It is an unreasonable detention 
 of the water to gather it into reservoirs for future use in 
 a dry season, or for the purpose of obtaining a greater simply 
 than the stream affords by its natural flow in ordinary stages.* 
 But it is not unreasonable to detain the surplus water not used 
 in a wet season and discharge it in proper quantities for use 
 in a dry season.* 
 
 Diminution of the water. — ^While the lower proprietor is. 
 entitled to have the stream flow to him in undiminished volume,, 
 yet a proprietor may lawfully withdraw from it whatever may 
 be necessary to supply the wants of his family or of his domes^- 
 tio animals, and also for irrigation,, manufacturing and other 
 useful, purposes, provided what he withdraws does not essen- 
 tially diminish the volume to the prejudice of those below him.* 
 
 Flooding lands. — At the common law the owner has no 
 right, by dams or otherwise, to cause the water of a stream 
 passing through his land to set back upon the lands of the pro- 
 prietor above. Every proprietor may,' if necessary, cross his 
 line to keep the channel open.' Any act of his which raises 
 the water in the stream above his estate is presumptively dam- 
 aging, and therefore actionable.' It is actionable also because,, 
 if persisted in without objection, it might, in the lapse of time^ 
 
 Me. 264; Holden v. Lake Co., 53 N. H. » Chasemore v. Eichards, 3 H. & N. 
 
 553; Pool V. Lewis, 41 Ga. 163, 5 Am. 168; Gillett v. Johnson, 30 Conn. 180;. 
 
 Eep. 536; Dumont v. Kellogg, 29 Bliss v. Kennedy, 43 111. 68. Water 
 
 Midh. 430. for locomotives may not be taken if 
 
 1 Hoy V. Sterrett, 2 Watts, 337. the flow is sensibly diminished. Gar- 
 
 s Clinton v. Myers, 46 N. Y. 511, wood v. New York, etc. E. Co., 8a 
 
 7 Am. Eep. 378; Pitts v. Lancaster N. Y. 400; Pennsylvania E. Co. v. 
 
 Mills, 13 Met. 156; Piatt v. Johnson, Miller, 113 Pa. St. 34 
 
 15 Johns. 313. 6 Prescott v. Williams, 5 Met. 439. 
 
 3 Clinton v. Myers, supra; Timm 'Pixley v. Clark, 35 N. Y. 520; 
 
 y. Bear, 29 Wis. 354. And see Thun- Munroe v. Gates, 48 Me. 463; Plinzy 
 
 der Bay, etc. Co. v. Speechly, 31 v. Augusta, 47 Ga. 260; Amoskeag 
 
 Mich. 336, 18 Am. Eep. 184. Mfg. Co. v. Goodale, 46 N. H. 581;. 
 
 '1 Oregon Iron Co. v. TruUenger, 3 Mississippi Cent. E. Co. v. Carutti,51 
 
 Oreg. 1. Miss. 77. 
 
NUISANCES. 243 
 
 establish permanent rights by prescription.' Any showing of 
 actual damage is therefore undecessary to the maintenance of 
 the action.^ But in aid of manufactures, as has been said, par- 
 ties are allowed by statute, in some states, to flow the lands of 
 others for the purpose of obtaining power, on making compen- 
 sation.' 
 
 All the foregoing principles are as much applicable to mu- 
 nicipal corporations in their dealings with water-courses as to 
 individuals.* 
 
 Fouling the water of streams. — It has been said that whether 
 the use of a stream to carry off the waste from a manufactory 
 is reasonable or not is a question of fact for the jury, depend- 
 ing upon the circumstances of the particular case.' In Wood v. 
 Waud the ground of complaint was that the defendant fouled 
 the water of a stream, to the prejudice of lower riparian pro- 
 prietors, by pouring into it soap-suds, etc. It was answered 
 that the plaintiffs received no actual damage because the stream 
 was already so polluted by similar acts of mill-owners that the 
 wi'ongful act complained of made no practical difference. But 
 it was held that the plaintiffs had received damage in point of 
 law.* " Every owner of land through which a stream of water 
 flows is entitled to the use and enjoyment of the water and to 
 have the same flow in its natural and accustomed course, with- 
 out obstruction, diversion or pollution. The right extends to 
 the quality as well as to the quantity of the water." ' But to 
 the general principle thus declared there may be exceptions. 
 
 1 Mississippi Cent. E. Co. v. Mason, Spring Bleaching Co., 14 N. J. Eq. 
 
 61 Miss. 234. 335, 343. See, also, Richmond' Mfg. 
 
 2See ch. Ill, p. 20. Co. v. Atlantic Delaine Co., 10 E. L 
 
 3 See Cooley, Const. Lim. 666. 106; Silver Spring, etc. Co. v. Wans- 
 
 <Haynes v. Buriington,38 Vt. 350; knok Co., 13 E. I. 611. See Colum- 
 
 Sprague v. Worcester, 13 Gray, 193; bus & Hocking,, etc. Co. v. Tucker, ' 
 
 Helena v. Thompson, 29 Ark. 569. 48 Ohio St. 41, 12 L. R. A. 577; Bar- 
 
 5 Such as the size and character of ton v. Union Cattle Co., 28 Neb. 350, 
 
 the stream, the extent of the poUu- 7 L. R. A. 457. A municipal corpo- 
 
 tion, the benefit to the manufacturer, ration is liable for the pollution of a 
 
 and the injury to others. Hayes v. stream by sewerage and filthy mat- 
 
 Waldron. 44 N. H. 580. ter flowing through drains which it 
 
 63 Ezcb. 748. has constructed, from which injury 
 
 'Robb T. Carnegie Bros. & Co., 145 results to a land-owner, through 
 
 Pa. St. 324,14 L. R. A. 329; Drake whose premises the, stream flows- 
 
 V. Lady Ensley, etc. Co. (Ala.), 24 Chapman v. Rochester, 110 N. Y. 273, 
 
 I* E A. 64; Holsman v. Boiling 1 L. R. A. 296. 
 
244 NUISANCES. 
 
 A very large proportion of the value of all the streams ia the 
 country would be sunk and lost if mills might not be erected 
 upon them because some taint to the water was inevitable to 
 it from their use. It would therefore seem that there may be 
 some change in the natural condition of the water without 
 legal wrong, and "the question of how much and what shall 
 constitute legal wrong must be a question of what uttder the 
 eiroumstanoes is a reasonable use. "An extent of deposit 
 which might be of no account in some streams might seriously 
 affect the usefulness of others. So, too, a kind of deposit which 
 would affect one stream seriously would be of little importance 
 in another. There is no doubt one must be allowed to use a 
 stream in such a manner as to make it useful to himself, even 
 if it do produce slight inconvenience to those below." ^ 
 
 Negligent fires. — Fire may be employed lawfully for aU the 
 purposes of life for which it is useful, and also for amusement 
 upon one's premises, subject only to the condition of due care. 
 But due care is a degree of care corresponding to the danger, 
 and requires circumspection, not only as to time and place of 
 starting it^ but in protecting against its spread afterwards. 
 " The time may be suitable and the manner prudent, and yet if 
 one be guilty of negligence in taking care of it, and it spreads 
 and injures the property of another in consequence of such 
 negligence, he is liable in damages for the injury done." ^ The 
 burden is upon the plaintiff to show that the injury is to be 
 imputed to the negligence or misconduct of the defendant or 
 his servants, and this part of the case is. made out by showing 
 that the fire was kindled when and where it would he likely to 
 spread as it did, or pass beyond control, or that it was left 
 without proper care afterwards.' A case of spontaneous com- 
 bustion may be one of negligent fire if ignition was reasonably 
 to be looked for.* It is immateriar whether the fire spreads by 
 
 1 Redfleld, C. J., in Snow v. Par- And see Louisville, etc. E. Co. v. 
 
 sons, 38 Vt. 459, 463. See to the Nitsche, 176 Ind. 339, 9 L. E. A. 750; 
 
 same effect, Hayes v. Waldron, 44 Brown v. Brooks, 85 Wis. 390, 21 L. 
 
 N. H. 580, 585; Merrifleld v. Worces- E. A. 355, and note. 
 
 ter, 110 Mass. 316, 14 Am. Eep. 593. 3 Higgins v. Dewey, 107 Mass. 494 
 
 See further, Pennsylvania Coal Co. 9 Am. Eep. 63. And see Eead v. 
 
 v. Sanderson, 113 Pa. St. 136; Glad- Penn. E Co., 44 N. J. L. 380. 
 
 felter v. Walker, 40 Md. 1. * Vaughan v. Menlove, 3 Bing. N. 
 
 ^ Hewey v. Nourse, 54 Me. 356. C. 468. 
 
NUISANCES. 245 
 
 running along the ground or by sparks or brands being carried 
 through the air by the wind.^ 
 
 The setting of fires under certain circumstances is sometimes 
 prohibited by statute because of the great danger of injurious 
 consequences. Whoever sets a fire thus prohibited must take 
 all the consequences.* 
 
 Fires communicated hy machinery. — Where the use of steam 
 machinery is lawful, the principles already mentioned apply. 
 If fires are kindled by sparks or otherwise in the use of it, no 
 action lies xmless negligence appears.' But it is negligence if 
 those employing such machinery fail to make use of approved 
 appliances for arresting sparks, or if the machinery, by reason 
 of being unsuitable or out of order, is likely to scatter fire.* 
 The fact that fire has been communicated by railroad engines 
 to the premises of individuals is sufficient to make out & prima 
 fade case of negligence.* StiU, as the business itself is lawful, 
 all that can be required is that it be managed with a care pro- 
 portionate to its risks.® In some states statutes exist which 
 either render rafiroad companies responsible for aU injuries by 
 fire originating with their engines,' or which expressly impose 
 upon them the burden of showing that the fire originated 
 without negligence on their part.' 
 
 It is held to be negligent in a railroad company to leave 
 grass and other combustibles lying along the track where they 
 
 1 Higgins V. Dewey, sitpro. Mich. 440; Frankford, etc. Co. v. 
 
 ^Burtonv. McClellan, 3IU. 434. Phila. etc. R. Co., 54 Pa. St. 345; 
 
 3 Borroughs v. Housatonic, etc. E. Marvin v. C, M. & St. P. Ey. Co., 79 
 
 Co., 15 Conn. 124; Hoyt v. Jeffers, "Wis. 140, 11 L. R. A. 506, and note. 
 
 30 Mich. 181; Mobile, etc. E. Co. v. In the case of fire used for manu- 
 
 Gray, 62 Miss. 383. factnring. purposes, the manufact- 
 
 * IlL Cent. E. Co. v. McClelland, 43 urer is not liable for damages caused 
 
 IlL 355; Toledo, etc. E. Co. v. Corn, by its escape unless negligence on 
 
 71 HL 493. After it is shown that his part is shown. Day v. Akeley 
 
 fire originated from sparks from a Lumber Co., 54 Minn. 533, 33 L. E. A. 
 
 locomotive, the burden of proof of 513. 
 
 estabUshiag that the appliances in ' Such statutes are held constitu- 
 
 useatthe time were of the best pat- tional. Matthews v. St. Louis, etc. 
 
 tern is upon the company. AVliite E. Co., 121 Mo. 398, 35 L. E. A. 161, 
 
 V. C, M. & St. P. E. Co., 1 S. Dak. and note. 
 
 326, 9 L. E. A. 835. ^See Perley v. East. E. Co., 98' 
 
 6 Miller v. St. Louis, etc. E. Co., 90 Mass. 414; Stearns v. Atl. etc. E. Co., 
 
 Mo. 389; Spaulding V.Chicago, etc. E. 46 Me. 95; Eowell v. Eailroad, 57 
 
 Co., SO "Wis. 110. N. H. 133; G. T. R. Co. v. Eic!iai(3son, 
 
 6 Mich. Cent. E. Co. v. Coleman, 38 91 U. S. 454 
 
246 NUISANCES, s 
 
 are peculiarly liable to take fire by f aUing sparks or coals.' 
 The rules of contributory negligence apply here as in other 
 cases; but the fact that the neighboring land-ownet leaves 
 grass and other combustibles on his premises near the road 
 does not render him chargeable with contributory negligence, 
 the obligation of care to prevent fires resting not upon him but 
 upon the company.^ 
 
 Injuries by fire-arms and explosives.— When one makes 
 use of loaded weapons, he is responsj[ble only as he might be 
 for any negligent handling of dangerous machinery; that is to 
 say, for a care proportionate to the danger of injury from it.' 
 The firing of guns for sport or exercise is not unlawful if a 
 suitable place is chosen for the purpose; but in the streets of 
 a city, or in any place where many persons are congregated, it 
 might be negligence in itself.* An injury by a young child 
 with a loaded gun placed in its hands negligently by another 
 is the wrong of the person putting it in his hands.* 
 . If one deliver to a carrier explosive articles for transporta- 
 tion without disclosing what they are^ he will be responsible 
 to parties injured if an explosion take place.' So if he put 
 articles in the trade for a certain use in which they would be 
 dangerous,^ or sell poisonous drugs wrongly labeled, or labeled 
 as being innocent.* 
 
 Eemoving lateral support. — The right to lateral support by 
 adjoining land exists independent of contract ; and to remove it, 
 
 1 Flynn V. San Francisco, etc. E. gested by experience and the known 
 Co., 40 Cal. 14; Ohio, etc. B. Co. v. dangers of the subject ought to be 
 Clutter, 83 111. 123; Jones v. Mich, taken. Koelsch v. Phila. Co., 152 
 Cent. R. Co., 59 Mich- 165. Pa. St. 355, 18 L. E. A. 759. The note 
 
 2 Flynn v. San Francisco, etc. E. to this case mentions various things 
 Co., supra; Jacksonville, etc. Co. v. held to be dangerous agencies. 
 Peninsular Land, etc. Co., 37 Fla. 157, *See Conklin v. Thompson, 29 
 17 L. E. A. 33. Failure to try to put Barb. 218; Welch v. Durand, 36 
 out a flre after hearing of it will not Conn. 183; Spier v. Brooklyn, 189 
 prevent recovery for damage done N. Y. 6, 31 L. E A. 641. 
 
 before. Stebbins v. Cent. Vt. E. Co., 6 Dixon v. BeU, 5 M. & S. 198. 
 
 54Vt. 464, 6 -Williams v. East India Co., 8 
 
 3 Underwood v. Hewson, Stra. 596; East, 193; Carter v. Towne, 98 Mass. 
 Chataigne v. Bergeron, 10 La. Ann., 567. 
 
 699. A higher degree of care and 'Wellington v. Downer, etc. Co.( 
 
 vigilance is required in dealing with 104 Mass. 64 
 
 a dangerous agency than in the or- 8 Loop v. Litchfield, 42 N. Y. 351; 
 
 dinary afifairs of life or business. Norton v. Sewall, 106 Mass, 143, 8 
 
 Every reasonable precaution sug- Am. Eep. 398. 
 
HTJiaiNCEs. 247 
 
 or to do anything which endangers it, is to commit a nuisance.' 
 Whoever, in the course of improvements on his own land, may 
 have occasion to make excavations which endanger the land of 
 his neighbor, must supply walls or other sufficient substitute 
 for the support that he removes; but his obligation is limited 
 to the support of the land in its natural condition, and in re- 
 moving cbllateral support from land weighted with buildings 
 or other burdens, he is responsible for such consequences only 
 as would have followed if the land had not been thus weighted.^ 
 The case, however, is one in which the obligation of care for- 
 the protection of the neighbor's interest is imposed ; and be- 
 fore proceeding to remove collateral support he should give 
 reasonable notice of his intention, that the owner of the dom- 
 inant tenement may have the opportunity to provide against 
 any threatened danger.* He will also be responsible for all 
 the consequences of negligence in making the excavations.'' 
 
 In England the right to collateral support for land weighted 
 with buildings is held to be in the nature of an easement, and 
 miiy be acquired by prescription.* In this country the tend- 
 ency of the decisions is to repudiate the English doctrine.^ 
 
 Subjacent support. — Where one man owns the surface of a 
 freehold and another owns the subsurface, this is a condition 
 of things which must have had its origin in grants emanating 
 from a common source, and therefore contracts or covenants 
 fixing the respective rights and obligations of the parties are 
 
 1 Thurston v. Hancock, 13 Mass. 15. Failure to give such notice is 
 220; Baltimore, etc. E. Co. V. Eeaney, evidence of want of care. Sohultz 
 42 Md. 117; Guest v. Reynolds, 68 v. Byers, 24 Vroom, 443, 13 L. E. A- 
 BL 478; Wier's Appeal, 81* Pa. St 569, and note. 
 
 203. 4 Elliott V. N. E. R. Co., 10 H. L. 
 
 2 Partridge v. Scott, 8 M. & W. 230; Cas. 333; Boothby v. Androscoggin, 
 Backhouse v. Bonomi, 9 H. L. Cas. etc. R. Co., 51 Me. 318; Myer v. 
 503; Quincy v. Jones, 76 111. 331; Hobbs, 57 Ala. 175. As to responsi- 
 Moellering v. Evans, 131 Ind. 195, 6 biUty of owner for injuries caused 
 L. R. A, 449. It has been held in a by a contractor in this way, see 
 recent case that the value of the Larson v. Met. R Co., 110 Mo. 331, 18 
 building may- be recovered if the L. R. A. 330; Ketcham v. Newman, 
 sliding of the ground is not caused 141 N. Y. 205, 34 L. R. A. 103. 
 
 ■by the weight of the building. ^Washb. on Easements (3d ed.), 
 
 Parke v. Seattle, 5 Wash. 1, 30 X. R 547. 
 
 _4_ 68. *See Sullivan v. Zeiner, 98 Cal. 
 
 'Wyeley Canal Co. v. Bradley, 7 346, 30 L. R A. 730, and cases cited 
 
 East, 368; Brown v. Werner, 40 Md. in note. 
 
248 iruisANCiES. 
 
 likely to exist, and these must govern, so far as tKey extend.* 
 In the absence of any such, contract or covenants the owner 
 of the surface is entitled to support not only for the land itself, 
 but for the buildings erected upon it.^ The liability of the sub- 
 surface owner does not depend upon negligence, but if he re- 
 moves the natural support he must substitute that which is 
 sufficient to protect the surface; and a custom to work mines 
 without providing such support is unreasonable and void.' 
 
 Nuisances Causing personal discomfort. — A slight degree 
 of inconvenience may be sufficient to render actionable a dis- 
 comfort wantonly caused from malice or wickedness ; but where 
 one complains that something done or suffered by the defend- 
 ant causes him personal discomfort, the controversy generally 
 extends to considerations of what is a reasonable use of the 
 property of the parties respectively, and what discomforts and 
 inconveniences one can reasonably be required to submit to 
 and endure for the convenience or benefit of his neighbor. 
 
 In the case of St. Melen^ Smelting Co. v. Tipping,* it was 
 said by the court that whether anything which discomposes or 
 injuriously affects the senses or the nerves may or may not be 
 denominated a nuisance must undoubtedly depend greatly on 
 the circumstances of the place where the thing complained of 
 actually occurs. If a man lives in a town it is necessary that 
 he should subject himself to the consequences of those opera- 
 tions of trade which may be carried on in his immediate local- 
 ity, if they are actually necessary for trade and commerce and 
 also for the enjoyment of property, and for the benefit of the 
 inhabitants of the town and of the public at large. But the 
 submission that is required from persons living in society, to 
 that amount of discomfort which may be necessary for the 
 legitimate and free exercise of the trade of their neighbors, 
 would not apply to circumstances the immediate result of which 
 is sensible injury to the value of the property.* Every business 
 
 1 See Smith v. Darby, L. R. 7 Q. B. 5 Am. Eep. 385; Homer v. Watson, 
 716, 3 Moak, 381; Aspden v. Seddon, 79 Pa. St. 243, 21 Am. Rep. 55. 
 
 L. R. 10 Ck App. 391 i 11 H. L. Cas. 643. And see Huck- 
 
 2 Hext V. GiU, L. E. 7 Ch. App. 699, enstein's Appeal, 70 Pa. St. 103, 10 Am. 
 3 Moak, 574; Smith v. Thaokerah, Rep. 669; Gilbert v. Showerman, 23 
 L. R. 1 0. P. 564. Mich. 448; Whitney v. Bartholomew, 
 
 3 Humphries v. Brogden, 13 Q. B. 21 Conn. 213. 
 
 739; Jones V. Wagner, 66 Pa. St. 429, sBohan v. Port Jervis, etc. Co, 
 
NmsANCES. 249~ 
 
 should be carried on in a suitable and convenient place ; and 
 by convenient is meant, not a place which is convenient for 
 the party himself, looking at his interest merely, but a place 
 suitable and convenient when the interests of others are con- 
 sidered.i 
 
 In considering what is reasonable under all the circum- 
 stances, the unlimited and undisturbed enjoyment which one 
 is entitled to have of his own property must be qualified to 
 this extent: that trifling inconveniences resulting from tha 
 useful employment of his neighbor's property must be sub- 
 mitted to when that which is done by the other in point of 
 locality is not unsuitable, and in point of management not un- 
 reasonable.^ 
 
 In those cases in which the questions of nuisance or no nui- 
 sance are raised in a court of equity, the conclusion of the^ 
 court to grant or deny relief in the particular cases is not al- 
 ways a guide to a court of law when it comes to pass upon 
 similar facts. A court of equity will decline to grant so severe 
 a remedy as injunction if the case is not clearly and conclu' 
 sively made out, and will send the plaintiff to a court of law 
 for damages.' 
 
 Offensive noises. — A dog which disturbs the rest of a com- 
 munity at night by loud and continuous barking, about or in 
 the neighborhood of their residences, may be a nuisance.* So 
 the noises of billiard rooms or places which are frequented by 
 persons for drinking and carousing, and disorderly houses of 
 all sorts, while they constitute public nuisances, they also, from 
 their noises and for other reasons, would be nuisances to the 
 neighborhood.* And so may the keeping of a noisy livery- 
 
 123 N. T. 18, 9 L. R A. 711, and court in Eobb t. Carnegie Bros. & 
 
 cases cited in note. Co., 145 Pa. 324^ 14 L. E. A. 329. 
 
 1 Williams, J., in Banrford v. Turn- ' Huckenstine's Appeal, 70 Pa. St. 
 ley, 3 Best & S. 65, 75. See remarks 102, 10 Am. Rep. 669; Campbell v. 
 of Holt, J., in Powell v. Bentley, etc. Seaman, 68 N. T. 568. 
 
 Ca, 34 W. Va. 804, 12 K R. A 53; < Brill v. Flagler, 23 Wend. 854 
 
 Fogartyv. Junction City, etc. Co., » See Tanner v. Albion, 5 Hill, 121 j 
 
 50 Kan. 478, 18 L. R A. 756; Kin- People v. Sergeant, 8 Cow. 139; Mar- 
 
 naird V. Standard Oil Co., 89 Ky. 468, san v. French, 61 Tex. 173. The 
 
 7 L. E. A. 451. playing of a piano in a saloon, ac- 
 
 2 Gaunt V. Fynney, L. E. 8 Ch. App. companied by dancing, is a nuisance. 
 8, 4 Moak, 718; Trulock v. Merte, 73 Feeney v. Bartoldo (N. J. Eq.), 30 AtU 
 Iowa, 510. And see opinion of the Eep. 1101. 
 
■250 NIJISANCB8. 
 
 stable,^ or any business in which, the noises are great and ia- 
 ■4cessant or frequent.^ 
 
 Jar of machinery. — "Where manufacturing operations are 
 ■carried on with heavy piachinery in the part of a city mainly 
 occupied by residences, the jar of machinery may constitute a 
 serious nuisance, injurious not to comfort merely but to health.' 
 
 Nuisance of dnst^ snioke^ etc. — This may be caused in many 
 •kinds of business. If the smoke or dust, or both, that arisesi 
 -from one man's premises and passes over and upon those of 
 another, causes perceptible injury to the property, or so pol- 
 lutes the-air as sensibly to impair the enjoyment thereof, it is 
 ,a nuisance.* But the inconvenience must be something more 
 than mere fancy, mere delicacy or fastidiousness. It must 
 tnaterially interfere with the ordinary comfort physically of 
 ihuman existence.' 
 
 Offensive odors may proceed from a business carried on in 
 ran inconvenient place or managed improperly, or from some- 
 •thing merely permitted on one's premises from which offensive 
 odors arise. Where they proceed from lawful and proper 
 business, the question of suitableness an4 reasonableness in 
 point of place and management is almost necessarily presented." 
 
 1 Broder v. Saillard, 2 Ch. Div. 693, MoKeon v. See, 51 N. Y. 300, 10 Am. 
 
 17 Moak, 693; Dargan v. Waddill, 9 Eep. 659; Quinn v. Lowell, 14fl Mass. 
 
 Jred. 344. But a livery-stable is not 106; Cooper v. Eandall, 53 lU. 24. 
 
 » ■axxisa.noe per se. St. Louis v. Rus- * Eoss v. Butler, 19 N. J. Eq. 294; 
 
 ■sell, 116 Mo. 248, 20 L. R. A. 731. Rhodes v. Dunbar, 57 Pa. St. 274. 
 
 2McKeon v. See, 51 N. Y. 300; And see Noroross v. Thorns, 51 Me. 
 Rhodes v. Dunbar, 57 Pa. St. 274. 503; Hyatt vl Myers, 71 N. C. 271; 
 Each case must be decided on its Louisville Coffin Co. v. Warren, 78 
 .own facts. See Ballentine v. Webb, Ky. 400; Wylie v. Elwood, 134 IlL 
 84: Mich. 38, 13 L. R. A. 221. The 281, 9 L. R. A. 726. 
 noise complained of must be such as 5 See Walter v. Self e, 4 De Gr. & S. 
 materially to interfere with and 315, 4 Eng. L. & Eq. 15; Colimibus 
 impair the ordinary comfort of ex- Gas Co. v. Freeland, 12 Ohio St. 892. 
 istenceof people of ordinary sensi- 6"A reasonable use of property 
 J)ilit3r. Powell v. Bentley, etc. Co., can never be construed to include 
 54 W. Va. 804, 12 L. R. A. 53, and those uses which produce destruot- 
 , jnote. The noises produced by the ive vapors and noxious smells, and 
 unloading of coal by machinery into that result in material injury to the 
 .a coal shed situated in a thickly property and to the comfort of ex- 
 populated residence portion of a istenoe of those who dwell in the 
 iown may be a nuisance. Wylie v. neighborhood." Bohan v. Port Jer- 
 JElwood, 134 la 381, 9 L. R. A. 726. vis, etc. Co., 123 N. Y. 18, 9 L. R. A. 
 
 3 Robinson v. Baugh, 31 Mich. 290; 711, and note. 
 
NUISANCES. 251 
 
 If a business be necessary or useful, it is always presumable 
 that it may be carried on without being a nuisance. But 
 " however ancient, useful or necessary the business may be, if 
 it is so managed as to occasion serious annoyance, injury or 
 inconvenience, the injured party has a remedy." ^ The busi- 
 ness of tanning leather is often found to be a nuisance,^ in part 
 because of offensive smells proceeding from it, and in part 
 from the fouling of streams on which the business is usually 
 carried on. A livery-stable, or a brewery, may or may not be 
 offensive according as it is managed.' 
 
 Dead animals left unburied are likely to be a nuisance ; * and 
 a privy may be one if offensive odors arise from it which de- 
 stroy the comfortable occupation of a neighboring tenement.' 
 
 Mental disquietude. — In Owen v. JETenman,^ where the 
 plaintiff alleged no damage to his property, health, reputation 
 or person, it was held that no action would lie for being dis- 
 turbed in the hearing of a clergyman and the other exercises 
 of a place of public worship. And this case was approved in 
 a suit brought to restrain a street railway company from run- 
 ning its cars on Sunday, the complainants alleging that they 
 were " deprived of their right of enjoying the Sabbath as a 
 day of rest and religious exercise, free of all disturbance from 
 merely unnecessary and unauthorized worldly employment." 
 The true rule in judging of injuries from alleged nuisances was 
 declared to be " such as naturally and necessarily result to aU 
 alike who come within their influence. Not to one on account 
 of peculiar sentiments, feeling or tastes, if it would have no 
 effect on another, or all others, without these peculiar senti- 
 ments or tastes. Not to a sectarian, if it would not be to one 
 
 iNorcross r. Thomas, 51 Me. 503; MoConathy, 11 Mo. 517), and of a 
 
 People V.Detroit White Lead Works, slaughter-house. Ballentine v.Webb, 
 
 82 Mich. 471, 9 L. E. A. 733; Sus- 84 Mich. 38, 13 L. R. A. 331. 
 
 quehanua Fertilizer Oo. v. Malone, < Ellis v. Kansas C. etc. K. Co., 63 
 
 73 Md. 868, 9 L. E. A. 737. Mo. 131. 
 
 2 Moore v. Webb, 1 C. B. (N. S.) s Barnes v. Hathorn, 54 Me. 134; 
 
 673; Francis v. Schoellkopf, 58 N. Y. Wahle v. Eeinbach, 76 IlL 333. For 
 
 153. Qther illustrations, see Com. v. Perry, 
 
 'Kirkman v. Handy, 11 Humph. 139 Mass. 198; Shively v. Cedar Eap- 
 
 406. The same may be said of a ids, etc. E. Co., 74 Iowa 169. 
 
 brewery (Jones v. Williams, 11 M. 61 Watts & S. 548. 
 & W. 176), a distillery (Smiths v. 
 
252 NUISANCES. 
 
 belonging to no ohuroli. It must be something about the effects 
 of which all agree." ^ 
 
 If mental disquietude could ^ve a right of action, the ques- 
 tion of locality would be of little importance, and one might 
 be specially inconvenienced by a nuisance at a distance as well 
 as by one near him. 
 
 As any public evil or disorder, which by statute is declared 
 to be a nuisance, must be held and be deemed to be one, there 
 may be many other statutory nuisances which cannot afford 
 grounds for a private action, for the reason that the only an- 
 noyance they could cause to individuals would be such aS might 
 be caused by any breach of public order or of good morals.^ 
 
 Inviting one into dangerous places. — One is under no obli- ' 
 gation to keep his premises in safe condition for the visits of 
 trespassers ; but when he invites others to come upon his prem-, 
 ises for any purpose, he must exercise ordinary care and pru- 
 dence to render the premises reasonably safe for the visit.' 
 Thus, a railroad company is liable to one who is injured while 
 attempting to cross its track, if invited to cross by a signal in- 
 dicating that it was safe to do so ; * and to people who, coming 
 to the station to welcome an arrival, are injured by the giving 
 way of the platform;* and to a hack-man doing business with 
 it, who is injured by stepping without fault into a cavity neg- 
 ligently left by it in its platform.' 
 
 But one is not invited into danger when his entrance upon 
 dangerous premises is simply not opposed or prevented. Thus 
 the owner of a vessel is not liable to a servant employed on it, 
 who, in wandering about the vessel from curiosity, falls through 
 
 1 Thompson, J., in Sparhawk v. 11. Further, see opinion of court in 
 Union Pass. E. Co., 54 Pa. St. 401, Bright v. Bamett, etc. Co., 88 Wis. 
 437. 299, 26 L. E. A. 524 
 
 2 City or town councils can punish < Sweeny v. Old Colony R. Co., 10 
 as nuisances only what are declared Allen, 368. 
 
 such at the common law or by stat- " Gillis v. Pa. E. Co., 59 Pa. St 129; 
 
 ute. Yates v. Milwaukee, 10 WalL Hamilton v. Texas, etc. E. Co., 64 
 
 497; Everett v. Council Bluffs, 46 Tex. 251. 
 
 Iowa, 66. 6 Tobin v. Portland, eta E. Co., 59 
 
 3 See Southcote v. Stanley, 1 H. & Me. 183. If the appearance of prem- 
 N. 347, 38 Eng. L. & Eq. 295; Francis ises points out a certain spade as the 
 V. Cockrell, L. E 5 Q. B. 184; Elliott mode of approach, that space must 
 V. Pray, 10 Allen, 378 ; Harriman v. be kept safe. Learoyd v. Godfrey, 
 Pittsburgh, etc. R. Co., 45 Ohio St. 188 Mass. 315. 
 
ifroisAuoES. 2o3 
 
 a scuttle.' And one who publicly exposes a machine on market- 
 day is not responsible for injuries to boys who meddle with it 
 without permission.* The liability in any such case must spring 
 from negligence ; and therefore if the injury arises from some 
 danger not known to the owner, and not open to observation, 
 he is not responsible, because he is not in fault.' 
 
 The duty in all such cases must, in general, pertain to occu- 
 pancy, not to ownership;* but sometimes it is assumed by 
 others. Thus if a landlord, by his covenants with tenants, as- 
 sumes the obligation of repairs, he is responsible for any in- 
 juries consequent upon his failure to make them, not to the 
 tenants merely, but to third persons lawfully coming upon the 
 ' premises.* 
 
 Nuisances which threaten calamity. — Many things are 
 nuisances because they threaten calamity to the persons or 
 property of others, and thereby cause injury, though the ca- 
 lajnity feared may .never bef aU. In such cases the party in- 
 jured or endangered need not wait for the calamity to happen, 
 but may bring suit at once and take proceedings for abating 
 the nuisance. The blasting of rocks sufficiently near the dwell- 
 ings of others to endanger them, is a nuisance of this sort ; ' 
 and so is powder or any other dangerous explosive stored and 
 imperfectly guarded in the vicinity of residences;'^ and a 
 building so negligently constructed, or so greatly decayed, that 
 it is Ukely to fall upon an adjoining tenement, or on persons 
 lawfully making use of easements near it.* 
 
 iSevery v. Nickerson, 120 Mass. ^Manganv. Atterton,L. E. lExch. 
 
 306. See for cases where the same 239. 
 
 principle is applied, Pierce v. Whit- ' See Malone t. Hathaway, 64 N. Y. 
 
 comb, 48 Vt 127, 21 Am. Eep. 120. 5, 21 Am. Eep. 573. 
 
 For other illustrations of the text, * Rich v. Basterfleld, 4 M., G. & S. 
 
 see Hargreaves v. Deacon, 25 jVIioh. 1 ; 783. 
 
 Blixv.Nieman,68Wis.271; Sclimidt ■' Campbell t. Sugar Co., 63 Me. 
 
 V. Kansas City, etc. Co., 90 Mo. 284. 552; Burdick v. Cheadle, 26 Ohio St. 
 
 The owner is not liable, however 393, 20 Am. Eep. 767. 
 
 frequently his premises are used by b Scott v. Bay, 3 Md. 431; Colton v. 
 
 them for their own convenience, un- Onderdonk, 69 CaL 155. 
 
 less he leads them to believe a way 'Myers v. Malcolm, 6 Hill, 293; 
 
 is intended to be created there for Emory v. Hazard Powder Co., 32 
 
 travelers. Evansville, etc. E. Ca v. S. C. 476. 
 
 Griffin, 100 Ind, 231. 'Mullen v. St. John, 57 N. Y. 567, 
 
 15 Am. Bep. 530. 
 
254 NUISANCES. 
 
 Diseased Ibeasts.— Domestic animals which have an infec- 
 tious or contagious disease become a nuisance when the care 
 and management of them by the owner is such as to expose 
 the domestic animals of others to the infection or contagion,* 
 or when they are sold to be put with others, to one who is not 
 informed of their condition.^ The question of HabLlity is one 
 of negligence and of the want of good faith.' 
 
 Responsibility for nuisances. — A party is responsible for a 
 nuisance on the ground, either, first, that he purposely or neg- 
 ligently created it ; or second, that he continues it. Distinct 
 parties may be equally liable, one perhaps for the positive 
 wrong of creating, and the other for the negative wrong of 
 failing to abate. 
 
 In general that party only is responsible for the continuance of 
 a nuisance who has possession and control where it is, and upon 
 whom, therefore, the obligation to remove seems properly to , 
 rest. As between landlord and tenant, then, the party pre- 
 sumptiYely responsible is the tenant.* But there are many 
 cases in which the party put of possession is, either in part or 
 exclusively, the party in fault. Thus, if the owner of lands, 
 through which a water-course rung, erects a dam across it 
 which sets the water back upon the proprietor above, and 
 then leases the land with the nuisance upon it, he gives with 
 the lease implied permission for the lessee to keep up the 
 dam, and he thus becomes a partibipant with the lessee in the 
 wrong while the dam is maintained as it was when he gave 
 the tenant possession.* It has been held to be otherwise, how- 
 ever, where the landlord requires the lessee to covenant to keep 
 the premises in repair, and the injury is one which, though at- 
 tributable to the condition of the premises when the landlord 
 delivered possession, might have been avoided by care on the 
 part of the tenant.* In order to render a landlord liable in a 
 case of this sort, there must be some evidence that he author- , 
 
 1 Mills V. N. T. etc. R. Co., 2 Rob. Sworas v. Edgar, 59 N. Y. 38, 17 Anu 
 
 836; affirmed, 41 N Y. 619, note. Eep. 395. 
 
 2MuUett V. Mason, L. R. 1 C. P. sRoswell v. Prior, 13 Mod. 635, 3 
 
 559. Salk. 460; Helwig v. Jordan, 53 Ind. 
 
 » See Kemmish V.Bali, 30 Fed. Rep. 31, 31 Am. Rep. 189. And see Grady 
 
 759; Bradford v. Floyd, 80 Mb. 307; v. Wolsner, 46 Ala. 381. • 
 
 Hawks V. Locke, 139 Mass. 305. « Leonard v. Storer, 115 Mass. 86, 
 
 4Todd V. FUght, 9 C. a (N. S.) 377; 15 Am. Rep. 76. 
 
NUISAJSICES. 25& 
 
 ized the continuance of the nuisance. That he assumed the 
 obligation to repair the premises might be a circumstance to 
 show that he authorized this continuance. But the mere letting; 
 of a house with a chimney in it, which the owner has constructed^ 
 does not render him responsible for a nuisance caused to the 
 occupant of an adjoining tenement by the smoke issuing from 
 the chimney from fires built by his tenant.^ 
 
 The fact that the party erecting a nuisance remains respon- 
 sible for its continuance does not excuse the actual possessor. 
 The continuance, and every use of that which is in its direction- 
 a nuisance, is a new nuisance.^ And persons may be liable for 
 the continuance of a nuisance who have created it on the -land 
 of another, even though they have no right to enter to abate it.*" 
 
 A party who comes into possession of lands as grantee or 
 lessee with a nuisance already existing upon it is not in gen- 
 eral liable for the continuance of the nuisancfe until his atten- 
 tion has been called to it, and he has been requested to abate- 
 it.* But if one has already been notified to remove the nui- 
 sance, and the party giving notice then seUs to another, his 
 alienee may sue without giving notice himself.' And notice is- 
 not necessary in any case where the alienee is chargeable with- 
 some personal duty or obligation cast upon him by law; or" 
 where the nuisance is immediately dangerous to life or health.^ 
 
 A mere agent or servant is not liable for the continuance of 
 a nuisance on the land of his master or employer,'' unless he is- 
 guilty of some distinct wrongful act, or of personal negligence 
 from which injury flows.' 
 
 The complainant. — The party, who at the time suffers the- 
 inconvenience of a nuisance is entitled to complain of it, and it 
 is immaterial whether it was or was not a nuisance to him in- 
 its origin. It is of no importance to the right of action that 
 
 1 Rich V. Basterfleld, 4 M., G. & S. N. H. 143; Conhooton Stone Ed. v. 
 783. Buffalo, etc. R. Co., 51 N. Y. 573, 10 
 
 2 Nichols V. Boston, 98 Mass. 39; Am. Rep. 646. 
 
 Clancey v. Byrne, 56 N. Y. 129, 15 » Caldwell v. Gale, 11 Mich. 77. 
 
 Am. Rep. 391; Pillsbury v. Moore, 44 « Jones v. Williams, 11 M. & W, 
 
 Ma 154. 177; Irvine v. Wood, 51 N. Y. 22^ 10- 
 
 * Thompson v. Gibson, 7 M. & W. Am. Rep. 603. 
 
 456. And see Gray v. Boston, etc. 'Brown Paper Co. v. Dean, 123- 
 
 Ca, 114 Mass. 149, 19 Am. Rep. 324 Mass. 267. 
 
 *See Johnson v. Lewis, 13 Conn- sCarleton v. Redington, 21 N. H, 
 
 307; Eastman v. Amoskeag Co., 44 291; Brown v. Lent, 20 Vt 539. 
 
256 KTJISAlfOES. 
 
 ijhe plaintiff has come into the neighborhood since the nuisance 
 was created. If a grantor could have complained when he 
 .conveyed, the grantee may complain afterwards. But it is 
 doubtful if a court of equity would relieve by injunction one 
 who should purchase an estate in the neighborhood of a nui- 
 sance for the express purpose of litigation. Undoubtedly such 
 a party would have a right to a remedy in damages.^ 
 
 ISTo lapse of time can confer the right to maintain a nuisance 
 .as against the state ; ^ but where a nuisance is purely private, 
 and concerns only the one person or the few who are injured, 
 its maintenance for the period of prescription without inter- 
 ruption will bar any subsequent suit.' Whether the right to 
 maintain a pubhc nuisance, as agkinst those to whom it works 
 especial and peculiar injury, can be gained by a lapse of time, 
 may possibly be open to some question. "Without discussing 
 the matter, here, it is sufficient to say that the better doctrine 
 seems to be that the aoiquisition of rights by prescription can 
 have nothing to do with the case of pubhc nuisances, either 
 when the state or when individuals complain of them.* 
 
 Private injury from public nuisance. — When the com- 
 plaint is that the plaintiff has been injured in respect to his 
 right to enjoy in common with all others some public easement 
 .or privilege, it becomes necessary for him to show both that 
 the public easement or privilege exists, and that he has been 
 hindered or obstructed in the common right to enjoy it.* 
 
 1 Edwards v. Allouez Min. Co., 38 v. Chaloner, 43 Me. 150; Kellogg v. 
 Mich. 46. Thompson, 66 N. Y. 88; Woodruff v. 
 
 2 United States v. Hoar, 2 Mason, North Bloomfield, eta Co., 18 Fed. 
 .311; State V. Eankin, 3 S. C. 438, 16 Rep. 753, 788. It is held in New 
 
 Am. Bep. 737; State v. Franklin Salem v. Eagle Mills Co., 138 Mass. 
 Falls Co., 49 N. H. 340, 6 Am. Rep. 8, that while a private nuisance may 
 513; Driggs v. Phillips, 103 N. Y. 77; be prescribed for, though it is a pub- 
 Inhabitants of Charlotte v. Pern- He nuisance as well, yet a public 
 broke Ironworks, 82 Me. 391, 8 L. E. nuisance from which special injury 
 A. 828. And see a discussion of the is suffered may not be. 
 subject and numerous illustrations 5 it is necessary to show both, be- 
 cited in note to this last case. cause the public wrong must be re- 
 
 8 EUiotson V. Feeltham, 3 Bing. dressed at the suit of the state, and 
 
 N. C. 134; Crosby v. Bessey, 49 Me. the fact that a public wrong is suf- 
 
 ,539. fered creates no presumption of in- 
 
 1 See Meinersv.Fred'kMiUer Brew- dividual injury. Brown v. Perkins, 
 
 ing Co., 78 Wis. 364, 10 L. R. A. 586; 13 Gray, 89; Gerrish v. Brown, 51 
 
 Weld V. Hornby, 7 East, 195; Knox Me. 256. See ante, ch. IH, p. 16. 
 
NUISANCES. 267 
 
 But it being found that a public easement exists, if it then 
 appears that what is complained of has been authorized by the 
 state, no action can be maintained on the assumption that what 
 is thus allowed is a publio nuisance.' The state having in some 
 form provided for and created a certain easement may at its 
 will abandon it or change it to some other easement, or restrict 
 or enlarge the use of it, and generally do with the creature of 
 its authority what it pleases. A common highway may thus 
 be qualified by the laying of a railway track upon it ; ^ or a 
 navigable stream may be bridged or dammed.' 
 
 But while the state may restrict its own right, it cannot re- 
 strict or take away rights which are purely individual, even 
 though they are intimately associated with the public right.* 
 Ifo regulation of the right of navigation can lawfully take from 
 the riparian proprietor his water front, and the right to make 
 use of it for the purposes of navigation ; * nor can any special 
 privilege which is conferred to make use of public waters em- 
 power the beneficiaries to flood the lands of individuals.' 
 
 Objects in the highway which do not prevent passage, but 
 render it dangerous from a tendency to frighten horses, are 
 nuisances.' But when, the object is something employed to 
 facilitate traffic or travel on the highway, the question whether 
 it is a nuisance cannot be determined on the single .considera- 
 tion of its tendency to frighten horses of even ordinary gentle- 
 ness. 
 
 Street railways, and elevated roads using steam power, are 
 
 » Danville, etc. B. Ca v. Com., 73 cation from powers expressly con- 
 Pa. St. 29. And see Everett v. Mar- ferred. Bohan v. Port Jervis, etc 
 quette, 53 Mich. 450. Co., 123 N. Y. 18, 9 L. E. A. 711 ; Mor- 
 
 * Danville, etc. R Co., supra; Ean- ton t. New York, 140 N. Y. 207, 23 
 die V. Paa K. Co., 65 Mo. 335; Chi- L. R A. 341. 
 
 <sago, eta Ca v. Loeb, 118 IlL 20a » Ryan v. Brown, 18 Mich. 196. 
 
 » Arimond V. Green Bay, etc. Co., « Trenton Water Power Co. v. 
 31 Wis. 316; Lee v. Pembroke Iron Raflf, 36 N. J. 335; Muskegon Boom- 
 Co., 57 Me. 481. ing Co. V. Evart Booming Co., 34 
 
 * See Aid worth v. Lynn, 153 Mass. Mich. 462; Brown v. Dean, 123 Mass. 
 53, 10 L R. A, 310, and cases cited in 254 
 
 Tiote. The statutory authority which 'See Ayer v. Norwich, 39 Conn. 
 
 wiU justify an injury to private 376, 13 Am. Rep. 396; Brownell v. 
 
 property and afford immunity for Troy, etc. R. Co., 55 Vt. 318; Wabash, 
 
 acts which would otherwise be a etc. E. Co. v. Farver, 111 Ind. 195; 
 
 nuisance must be express, or must Agnew v. Corunna, 55 Mich. 438. 
 be a clear and unquestionable impH- 
 17 
 
258 ' NUISANCES. 
 
 not nuisances, but if injury occurs from their use the question 
 presented is whether, under all the circumstances, there is fault 
 imputable to some one, and, if so, who should be held account- 
 able for it.' 
 
 What is a special injury.— In general, to entitle an indi- 
 vidual to an action, it is sufficient that he suffer some peculiar 
 injary differing from that suffered by the community at large.*' 
 The public nuisance of an offensive mill-dam is a special and 
 peculiar injury to the man whose residence is near it and the' 
 comfort of whose home is destroyed thereby. To entitle him 
 to. redress, plaintiff need only show how he has been injured 
 by the nuisance, and distinguish his injury from that suffered 
 by the public at large.' If one's premises are situated upon 
 public navigable water, whatever obstruction in the stream 
 tends specially to interfere with his access to the water is- 
 an actionable injury.* And it is a special injury to the plaint- 
 iff, if, having occasion to pass along a navigable stream, he 
 finds a barge moored across it which prevents his boat passing.* 
 
 Continuity of the wrong. — A nuisance continued is a fresh 
 nuisance every day it is suffered to remain unabated; and new 
 suits for the damage catted by its continuance may be brought 
 from day to day.* 
 
 iMacomber v. Nichols, 34 Mich. 147; Piatt v. Chicago, eta R. Ca, 
 
 212, 23 Am. Rep. 532, and note. 74 Iowa, 127; Schulte t. N. P. T. CJa,- 
 
 Water-tanks erected in a street 50 CaL 592; Patterson v. Det etc 
 
 under the authority of the munici- E. Co., 56 Mich. 172. 
 
 pality, to facilitate the work qf the * Dobson v. Blackmore, 9 Q. B. 991; 
 
 owner in Srprinkling the street, are Larson v. Furlong, 63 Wis. 323; 
 
 not nuisances per se. Savage v. Wood v. Esson, 9 Can. S. C. Rep. 239. 
 
 Salem, 23 Oreg. 381, 34 L. R A. 787. 5 Rose v. Miles, 4 M. & a 101. Or 
 
 2 See Haggart v. Stehlin, 137 Ind. a boom. Dudley v. Kennedy, 63 Me. 
 
 43, 22 L. R A. 577; Venard t. 465; Giflford v. McArthur, 55 Mich. 
 
 Cross, 8 Kan. 348; Green v. Nunne- 535. And though certain coal-sheds- 
 
 macher, 36 Wis. 50; McDonald v. on a railway company's right of 
 
 Newark, 42 N. J. Eq. 136. The dif- way may be a public nuisance, a 
 
 f erence must be in kind, not merely private individual may maintain an 
 
 in degree. East St. Louis v. O'Flynn, action for the damages sustained by 
 
 119 m. 200. But unless he has sus- him through coal dust falling upon 
 
 tained some special or particular food, clothing and furniture in his 
 
 damage apart from the common in- housa Wylie v. Elwood, 134 IlL 281, 
 
 jury, he is not entitled to maintain 9 L. R A. 726. 
 
 an action. Long v. Minneapolis ^ Shad well v. Hutchinson, 4 C. & 
 
 (Minn.), 63 N. W. Rep. 174. P. 383; Queen v. Waterhouse, L. R 
 
 8 See Stetson v. Faxon, 19 Pick. 7 Q. B. 545; Eeid v. Atlanta, 73 Ga. 
 
NUISANCES. 259 
 
 Naisances by municipal corporations. — More of tea than 
 otherwise the wrongs for which municipal corporations may 
 be responsible are in the nature of nuisances. 
 
 Municipal corporations are to be considered : first, as parts 
 of the governmental machinery of the state, legislating for 
 their corporators, and planning and providing for the custom- 
 ary local conveniences for their people; second, as corporate ' 
 bodies executing their plans through proper agencies, and dis- 
 charging such duties as they have imposed upon themselves or 
 as the state has imposed on them; and third, as artificial per- 
 sons owning and managing property. In this last capacity 
 they are chargeable with all the duties and obligations of other 
 owners of property, and must respond for creating or suffering 
 nuisances under the same rules which govern the responsibility 
 of natural persons.' 
 
 The powers of municipal corporations being conferred for 
 public purposes, to be exercised within prescribed limits at dis- 
 cretion for the public good, they are not liable in damages to 
 individuals for taking or neglecting to take strictly govern- 
 mental action. One shows no ground of action whatever when 
 he complains that he has suffered damage because the city he 
 resides in has made insufficient provision for protection against 
 fire,- or because provision is not made for lighting the streets,' 
 or because the drains which it orders and constructs are insuf- 
 ficient to carry off the surface water.* And a municipal cor- 
 poration is not responsible for the failure of its officers to 
 •discharge properly and effectually their official duties; for in 
 respect to these, the officers are not properly the servants or 
 agents of the corporation, but act upon their own official re- 
 sponsibility, except as they may be specially directed by the 
 corporate authority.* And it is responsible for the destruction 
 of property by a mob only when expressly made so by statute.'' 
 
 533; Mahon V. N. Y. C. R. Co., 34 » Preeport v. IsbeU, 83 111. 440. 
 
 N. Y. 658; Colrick v. Swinburne, 105 <See Eoberts v. Chicgao, 36 lU. 349. 
 
 N. Y. 503; Valparaiso v. Moffitt (Ind. s Barney v. Lowell, 98 Mass. 570; 
 
 App.), 39 N. K Rep. 909. Hayes v. Oshkosh, 33 Wis. 314, 14 
 
 >See Clark v. Peckham, 9 R. L Am. Rep. 76; Wakefield v. New- 
 
 455; Rowland v. Kalamazoo Supt's, port, 60 N. H. 374; Robinson v. Rohr, 
 
 49 Mich. 553; Moulton v. Scarbor- 73 Wis. 436, 3 L. R. A. 366; O'Rourk 
 
 ough, 71 Me. 367. v. Sioux Falls, 4 S. D. 47, 19 L. R. A. 
 
 2 Davis V. Montgomery, 51 Ala. 139, 789. 
 
 23 Am. Rep. 545. ' West College v. Cleveland, XZ 
 
260 NUISANCES. 
 
 But municipal corporations are responsible for due care in the 
 execution of any work ordered by them,' and if the work is 
 one for the special benefit of its own people, it must not negli- 
 gently be allowed to get out of repair to the injury of individ- 
 uals.* 
 
 Public ways being for the use of all the people of the state, 
 the duty which municipal corporations owe to keep in repair 
 the public ways within their limits is a duty to the state. And 
 therefore, except as the liability is expressly imposed by stat- 
 ute, a municipal corporation is not liable to an individual for 
 neglect to keep a highway in repair whereby he suffers injury.' 
 
 Statutes rendering towns liable for defects in highways are 
 generally held to include defects in sidewalks also.* 
 
 In this country, when a town is incorporated and is given 
 control over the streets and walks within its corporate limits, 
 and is empowered to provide the means to make and repair 
 them, the corporation not only assumes this duty, but by im- 
 phcation agrees to perform it for the benefit and protection of 
 all who may have occasion to make use of these public ease- 
 ments, and for any failure in the discharge of this duty the 
 corporation is responsible to the party injured.' This rule ap- 
 plies to injuries sustained in consequence of defects in side- 
 walks.' Imposing and making the duty of making and keeping 
 
 Ohio St 375. For a discussion of the presdy imposing the liability upon 
 
 question in various phases, and ref- towns, see Philbrick v. Pittston, 63 
 
 erences to the statutes of Yarious Me. 477; Ayer v. Norwich, 39 Cionn. 
 
 states, and decisions thereunder, see 376, 12 Am. Rep. 396; Agnew t, 
 
 Gianfortone t. New Orleans, 61 Fed. Corunna, 55 Mich. 428; Houfe v.Pul- 
 
 Kep. 64, 24 L. K. A. 592, and note. ton, 29 Wis. 296, 9 Am. Rep. 568. 
 
 1 Detroit v. Carey, 9 Mich. 165; < Bacon v. Boston, 3 Gush. 174; 
 Sufieolk V. Parker, 79 Va. 660; Hardy Coombs v. Purrington, 42 Me. 332; 
 V. Brooklyn, 90 N. Y. 435. Loan v. Boston, 106 Mass. 450; Prov- 
 
 2 See Gilman v. Laconia, 55 N. H. idence v. Clapp, 17 How. 161. 
 
 130, 20 Am. Bep. 175 ; Ashley v. Port » Bums v. Bradford, 137 Pa. St. 361, 
 
 Huron, 35 Mich. 296, 24 Am. Eep. 552 ; 11 L. R. A, 726 ; Manchester v. Erics- 
 
 VandersUce v. Philadelphia, 103 Pa. son, 105 U. S. 847; Nelson v. Canisteo, 
 
 St. 102. 100 N. Y. 89; Gibson v. Huntington, 
 
 3 Russell V. Men of Devon, 2 T. E. 38 W. Va. 177, 22 L. R. A, 561, and note. 
 667; Perry v. John, 79 Pa. St 412; See comfra, Detroit v. Blackeby, 21 
 Frazer v. Lewiston, 76 Me. 581; Mich. 84; Young v. Charleston, 20 
 Peters v. Fergus FaUs, 35 Minn. 549; S. C. 116. 
 
 Bates y. Rutland, 63 Vtl78,9 L. R. SQuincy v. Barker, 81 III. 300; 
 
 A. 363; Templeton v. Linn County, Davenport v. Ruckman, 37 N.Y. 568; 
 
 23 Oreg. 313, 15 L. R A. 730. For Dotton v. Albion, 50 Mich. 129. 
 cases decided under statutes es 
 
HTTISAITCES. 261 
 
 the sidewalks in repair upon the adjoining owners does not 
 relieve the city itself from responsibility to perform the duty 
 imposed upon it by law; and if the duty fails in performance, 
 the city and the individuals in default may be united in a suit 
 for the injury caused by the nuisance.^ 
 
 Obstructions consequent on the repair of streets create no 
 liability if there is no negligence.' 
 
 Individnal liability for defects in streets. — If an individ- 
 ual, whether the adjoining owner or not, and whether the fee 
 in the public way is in himself or in the public, does any act 
 which renders the use of the street hazardous or less secure 
 than it was left by the proper public authorities, he commits a 
 nuisance and is liable to any person who, while exercising due 
 care, is injured in consequence.* If, however, he has the con- 
 sent of the proper public authorities, and what he does is con- 
 sistent with the customary use of the way for private purposes, 
 and he observes a degree of care proportioned to the danger, 
 he cannot be held responsible for accidental injuries, inasmuch 
 as in such case he has failed in the observance of no duty. 
 The question in all such, cases is one of due and proper care,* 
 
 1 Davenport v. Ruckman, supra. Calder v. Smalley, 66 Iowa, 219; 
 
 SeeBochester v. Campbell, 133 N. Y. Pfau v. Keynolds, 53 IlL 313; Cohen 
 
 405, 10 L. R. A. 393. See Fife v. v. New York, 113 N. T. 532, 4 L. R. A. 
 
 Oshkosh, 89 Wis. 540. 406. 
 
 « Kimball v. Bath, 38 Me. 219. * Ottumwa v. Parks, 43 Iowa, 119; 
 
 •Dnrant v. Palmer, 29 N. J. 544; Portland v. Richardson, 54 Me. 46. 
 
CHAPTER XX. 
 
 "WRONGS FROM NON-PERFORMANCE. OF CONVENTIONAL AND 
 STATtJTORY DUTIES. 
 
 There are certain cases in which, by virtue of some conven- 
 tional relation between parties, a specific obligation is imposed 
 npon one to observe some special course of conduct as regards 
 the person or the property of the other. The most numerous 
 of these are cases of bailment. 
 
 Bailment is a delivery of goods in trust upon an agreement, 
 express or implied, that the trust shall be duly exercised, and 
 the goods returned or delivered over when the purpose of the 
 bailment is accomplished. Bailments have been classified as : 
 
 1. Those in which the trust is for the benefit of the bailor; 
 
 2. Those in which the trust is for the benefit of the bailee; 
 
 3. Those in which the trust is for the benefit of both parties.' 
 The classification is important here, because the degree of 
 
 care and vigilance required of the bailee is justly held to be in 
 some degree dependent upon the circumstance that the benefit 
 is to accrue to one rather than the other, or to both instead of 
 one only. 
 
 Bailments of the first class are usually mere matters of 
 friendly accommodation ; as where one, at his neighbor's request, 
 receives some article of value to be cared for during the latter's 
 absence from his home or place of business. Here the trust is 
 one of safe keeping only, but the law implies a promise com- 
 mensurate with the trust.* If the trust is not performed the 
 bailee is guilty of some breach of duty, unless he has some legal 
 excuse for the failure.. It would be a good legal excuse if the 
 goods are injured, lost or destroyed without the bailee's fault. 
 A loss or injury occurring by inevitable accident would be 
 without the bailee's fault ; and those accidents are usually spoken 
 of as inevitable which have occurred notwithstanding the exer- 
 
 > story on Bailments, § 3. application of the rule to the case of 
 
 2 See Isham v. Post, 141 N. Y. 100, funds held in trust See brief of re- 
 23 L. R A. 90. Note in this case the spondent 
 
WRONGS FEOM NON-PEEFOEMAJSTCE OF DUTIES. 263i 
 
 cise of such care as might reasonably have been exjiected under 
 the cu"cumstances.' 
 
 The bailee who accepts a trust for the benefit of the bailor 
 is not discharged from the obligation to perform unless he has 
 done all that can reasonably be required of him in respect to 
 it. But he has not done all that can reasonably be required of 
 him if he has been guilty of negligence, for negligence implies 
 fault; and to be in fault in discharging a legal duty to another 
 is to place one's self under legal obligation to make good the 
 consequent loss. 
 
 What is negligence. — The question of legal xliabiUty is 
 therefore one of negligence, and its consideration deipands first 
 a determination of what nggligence is. The term is relative, 
 and its application depends on the situation of the parties, and 
 the degree of care and vigilance which the circumstances rea- 
 sonably impose. That degree may vary in different cases ac- 
 cording to the danger involved in the want of vigilance. And 
 negligence, in a legal sense, is but the failure to observe for 
 the protection of the interests of another person that degree of 
 •care, precaution and vigilance which the circumstances justly 
 demand, whereby such other person suffers injury.^ The class- 
 ification of negligence as gross, ordinary, and slight, means no 
 more than that, under the special circumstances, great care and 
 ■caution were required, or only ordinary care, or only slight 
 care. If the care demanded was not exercised, the case is one 
 of negligence, and a legal liability is made out when the fail- 
 ure is shown.' 
 
 Degrees of negligence. — It has been said that where the 
 bailment is for the mutual benefit of both parties, that degree 
 of care is required which every person of common prudence, 
 and capable of governing a family, ordinarily takes of his own 
 concerns, and this is designated ordinary diligence. But if the 
 bailment is for the benefit of the bailee, it is proper to require 
 
 iThe subject of accident is dis- ^ For definitions of negligence, see 
 
 <;iissed in Holmes v. Mather, L. R. 10 Philadelphia, etc. R. Co. v. Stinger, 
 
 Exch. 261, 14 Moak, 548, and note. 78 Pa. St. 219; Blyth v. Birmingham 
 
 See, as supporting the propositions Water- works, 11 Exch. 781; Heaven 
 
 of this paragraph, Bradley v. Cun- v. Pender, L. R 11 Q. B. D. 503. 
 
 ningham, 61 Conn. 485, 15 L. R. A. 'Hinton v. Dibbin, 2 Q. B. 646; 
 
 ■679; Bunnell v. Stern, 123 N. Y. 589, Steamboat New World v. King, 16 
 
 10 L. R. A. 481, and note. How. 469. 
 
264 WRONGS FEOM NON-PEEFOEMANCE OF DUTIES. 
 
 of him the highest vigilance, or such as a very cautious and 
 vigilant man would take with his own possessions. While if it 
 were for the benefit of the bailor exclusively, the bailee is. 
 chargeable with only such slight care as a man of common 
 sense, however inattentive, would give to his own affairs.' As. 
 has been already said, these degrees of' extreme care, ordinary 
 care, and slight care, are subject to be affected by the nature- 
 of the thing in respect to which the trust is created, its value, 
 its liability to injury, etc.^ 
 
 Liability as gratuitous bailee only arises when the trust has. 
 once been assumed: the promise to accept such a trust is void 
 for want of consideration; and probably after he has accepted,, 
 the bailee may surrender it without performance if he restore 
 the property uninjured, and without having put the bailor to- 
 any inconvenience or damage.' But any dealing with the sub- 
 ject of the bailment in a manner not warranted by the under- 
 standing is in law wrongful.* 
 
 The question whether the proper degree of care has been 
 observed is one of fact, not of law.' 
 
 Bailments for the benefit of the bailee. — Where the bail- 
 ment is for the exclusive benefit of the bailee, more than the 
 ordinary care and vigilance is required on his part. Where a 
 horse is loaned by the owner without hire to a friend for a 
 particular journey^ the party accommodated will be responsi- 
 ble if, in consequence of slight neglect on his part, the horse is 
 lost or injured." 
 
 Bailments for mutnal benefit.— The most common bail- 
 ments are those from which each party expects or is supposed 
 to receive some advantage. Some of these cases are compli- 
 cated by the consideration that the bailee receives the property 
 in the course of a certain occupation to which the law attaches, 
 exceptional duties, imposing upon those who follow it extraor- 
 dinary liabilities. But others involve consideration only of 
 the particular transaction ; as where a thing is delivered to a 
 
 1 See Jones on Bailments, 4r-10. 'Chase v. Mayberry, 3 Harr. 266;. 
 
 ^Coggs V. Bernard, 3 Ld. Raym. Storer v. Gowen, 18 Me. 174. And, 
 
 909; .Foster v. Essex Bank, 17 Mass. as illustrations, see WyUe v. North- 
 
 479. ampton Bank, 119 IT. S. 361; Flinty 
 
 'Thome r. Deas, 4 Johns. 84 etc. R. Co. v. Weir, 37 Mich. 111. 
 
 *8ee Colyar v. Taylor, 1 Cold. 373; « Howard v. Babcock, 31 111. 359; 
 
 Stewart v. Frazier, 5 Ala. 114 Watkins v. Roberts, 38 Ind. 167. 
 
WRONGS FROM NON-PBEFOEMANOE OF DUTIES. 26& 
 
 mechanic in order that something may ba done by him upon 
 or in respect to it, in the line of his employment, and for a 
 compensation. The bailment being for the benefit of both 
 parties, the bailee is charged with the obligation of ordinary 
 care only.' So where goods are pledged in pecurity for a debt ; 
 and where grain is deposited in a mill or warehouse to be re- 
 turned on demand. In the latter case, the fact that the grain 
 is commonly stored with other grain of like kind and quality 
 does not vary the rules of legal responsibility. The bailor is 
 entitled to receive from the aggregate an amount of grain of 
 like kind and quality equal to the deposit, and the bailee must 
 deliver it on demand, or he must show an excuse which does 
 not involve a want of orcBnary care on his part. If, however 
 by the custom of the business, the warehouseman is expected 
 to buy and sell and to store what he buys with that which he 
 receives on deposit, making his sales from the aggregate, the 
 deposit of grain is not a bailment but is a sale of the grain, on 
 an undertaking to pay for it on demand in grain of Mlie kind 
 and quality ; and all risks are upon the warehouseman.^ 
 
 Every bailee is bound in his use of the property to keep 
 within the terms of the bailment. It is not material that a 
 departure from the terms is not injurious to the interests of the 
 bailor. Contracts being matters of agreement, even a more 
 beneficial contract cannot be substituted for another without 
 mutual assent.' 
 
 Innkeepers. — The employment of an innkeeper is one to 
 which special obligations are attached. An innkeeper is one 
 who holds himself out to the public as ready to accommodate 
 all comers with the conveniences usually supplied to travelers 
 on their journeys.* One who only furnishes occasional enter- 
 tainment is not an innkeeper;' neither is a boarding-house 
 keeper, or one who lets lodgings and furnishes their occupants 
 
 'See Kelton V. Taylor, 11 Lea, 264; PoweU, 86 Ga. 800, 13 L. R. A. 397. 
 
 Gleason v. Beers, 59 Vt 581; Kin- See Homer v. Thwing, 3 Pick. 493; 
 
 cheloe v. Priest, 89 Mo. 340; Seev- Mullen v. Ensley, 8 Humph. 428. 
 
 ers V. Gabel (la.), 37 L. R. A. 733. ^Thompson v. Lacy, 3 B. & Aid. 
 
 'Nelson v. Brown, 44 Iowa, 455; 283. And see Pinkerton v. Wood- 
 Jones v. Kemp, 49 Mich. 9. ward, 33 CaL 557. 
 
 * One who hires a horse to go to a ' State v. Mathews, 2 Dev. & Bat. 
 
 certain place has no right to go with 424; Carter v. Hobbs, 12 Mich. 53. 
 him beyond that point. Farkas v. 
 
■266 WEONGS FKOM NON-PEKFOEMANCE OF DUTIES. 
 
 with meals.^ An innkeeper is bound, as a matter of law, to fur- 
 nish the entertaiitment called for. He may demand his hire 
 in advance, but if it be paid dr tendered, he must receive the 
 traveler at any hour of the day or night.^ He would be ex- 
 cused, however, if ihe inn were full, or if the traveler were 
 infected with a contagious disease ; or if he came in a disorderly 
 manner. A disorderly guest may be removed with force if 
 necessary. ' But a traveler turned away Without cause, either 
 before or after being received^ may sustaih an action there- 
 ior.' 
 
 As bailee of the personal effects which the guest * brings 
 with him to the inn, it is generally held that, where the guest 
 himself is not in fault, the innkeeper is responsible as an in- 
 surer except only as against losses by the act of God or of the 
 public enemy.* Under this rule the , Innkeeper is liable not 
 only for all losses attributable to his own negligence or mis- 
 -conduct, or those of his servants, but also for such as may 
 result from accidental fires, and the thefts or other misconduct 
 or negligence of third persons.* This is a very high degree of 
 responsibility, and the rule is disapproved in several states, 
 which hold that the loss of the goods of the guest only makes 
 out a primQ, facie case of liability against tl^e innkeeper, and 
 that he mayi exonerate himself by showing that the loss was 
 in no manner occasioned by a want of proper care and atten- 
 tion on his part.' 
 
 Innkeepers do not necessarily come into actual possession of 
 the thing bailed, but usually have constructive possession only. 
 Thus, it has been held tha,t the grain in a traveler's sleigh 
 "svhen brought within the inclosure was constructively within 
 
 iShoecrafi;V. Bailey, 25 Iowa, 553; Norcross v. Norcross, 53 Me. 168; 
 
 Walling V. Potter, 35 Conn. 183. Sibley v. Aldrich, 33 N. H. 553. As 
 
 2 Rex V. Ivens. 7 C. & P. 213. And to boarders the innkeeper does not 
 
 see Atwater v. Sawyer, 76 Me. 539. assume any such extraordinary lia- 
 
 'MoCarthy V. Niskem,22 Minn. 90; bilities. See as to the distinction, 
 
 "Whiting V. Mills, 7 U. C. Q. B. 450. Chamberlain v. Masterson, 26 Ala. 
 
 < A guest is defined as one away 371 ; Hancock v. Kand, 94 N. Y. 1. 
 
 from home receiving accommodar t^See Shultz v. Wall, 1-54 Pa. St. 
 
 tions at an inn as a traveler. Pullman 262, 8 L. R. A. 97; Fay v. Pac. Imp. 
 
 Palace Car Co. v. Love, 28 Neb. 239, Co., 98 Cal.-253, 16 L. R A. 188. 
 
 « L. R. A. 809. And see Fay v. Pac. 'See Metcalf v. Hess, 14 IlL 129; 
 
 Imp. Co., 93 Cal. 253, 16 L. R A. 188. Merritt v. Claghorn, 23 Vt. 177; Cut- 
 
 s Mason v. Thompson, 9 Pick. 280; ler v. Bonney, 30 Mich. 259. 
 
■WEONGS FEOM NON-PEEFORMANCE OF DUTIES. 267 
 
 the innkeeper's possession.^ At the common law an innkeeper 
 cannot relieve himself in any degree from his responsibility by 
 any notice posted about the inn ; ^ biit by statute, in England 
 and in many of the states, he is permitted to restrict his liabil- 
 ity within certain limits, which the statute defines, by the post^ 
 ing of notices in his rooms. These statutes wUl constitute no 
 protection unless they are strictly complied with.' 
 
 If the loss or injury to the goods occurs through the fraud 
 or intermeddling of the guest, or through his failure to use the 
 ordinary care that a prudent man might be reasonably ex- 
 pected to have taken under the circumstances, the innkeeper is 
 excused.* If an innkeeper's servants take charge of the lug- 
 gage of a departing guest to deliver it to a railway company 
 or other carrier, the responsibility of the innkeeper continues 
 until actual delivery.'* And probably, if the guest goes away 
 without at the time taking his baggage with him, the inn- 
 keeper's liability as such will continue until it is removed, if 
 this be within reasonable time.^ An innkeeper has a lien for 
 reasonable charges on the goods brought with him by his 
 guest.' There is no such lien, however, as to those who are 
 merely boarders and not guests in the proper seflse." 
 
 Common carriers. — The liability of a common carrier 
 closely resembles that of an innkeeper. A common carrier is 
 one who regularly undertakes for hire, either on land or on 
 water, to carry goods, or goods and passengers, between differ- 
 ent places, for such as may offer.' 
 
 iClute V. Wiggins, 14 Johns. 175. Rep. 524 But he is not liable as 
 
 2 Bod well V. Bragg, 29 Iowa, 232; innkeeper if the luggage is left for 
 Maltby v. Chapman, 25 Md. 310. the guest's convenience. Miller v. 
 
 3 Porter v. Gilkey, 57 Mo. 235; Peeples, 60 Miss. 819. 
 Chamberlain v. West, 37 Minn. 54 'Pollock v. Landis, 36 Iowa, 651. 
 33 N. W. Rep. 114. And in some cases it is held that 
 
 *CashillT. Wright, 6EL& Bl. 891; this is so even though the goods 
 
 Read v. Amidon, 41 Vt, 15; Kelsey wer6 -intrusted to the guest by an- 
 
 V. Berry, 42 lU. 469. other. Manning v. HoUenbeck, 27 
 
 6 Richards v. London, etc. R. R. Co., Wis. 202. Contra, Domestic, etc. Co. 
 
 7 C. B. 839. And the innkeeper is v. Watters, 50 Ga. 573. The cases 
 
 liable for the safe keeping of goods are collected in the note to Singer 
 
 of an incoming guest from the mo- Mfg. Co. v. Miller, 21 L. R. A. 229. 
 
 toent they are received by a porter * Singer Mfg. Co. v. Miller, 21 L. 
 
 of the hotel at the depot. Coskery v. R. A. 229, and note. 
 
 Nagle, 83 Ga. 696, 6 L. R. A. 483. 'Mershon v. Hobensack, 22 N. J. 
 
 ALdatai V. Olem. 4-1 Ga 6£. P Am. S72- U. a Exp. Co. v. Backman, 28 
 
263 WKONGS FEOM NON-PEEFOEMAXCE OF DUTIES. 
 
 While a carrier may profess to limit his employment to some 
 one species of goods, yet, within the limits of his accustomed 
 business, he must receive and carry for all who offer, without 
 partiality or discrimination.' But he cannot enforce upon 
 the party proposing to employ him any terms to which the 
 latter refuses assent.^ The obligation which is imposed upon 
 him by the common law is : that he shall deliver at its destina- 
 tion the property received by him, without damage while m 
 his hands, unless prevented by the act of Grod or of the public 
 enemy.' And he must deliver, or be ready to deliver, within a 
 reasonable time. But custom has much to do with the time, 
 place and manner of delivery.* 
 
 The transportatioin of live-stock by a railroad company im- 
 poses risks of a different character, demanding more labor and 
 special arrangements for the protection of the stock, and does 
 , hot come within the reasons which, at the common law, imposed 
 upoi^ common carriers the duty of care and custody of other 
 property and made them insurers. The owner generally ac- 
 companies them, having entire charge, care and management, 
 and to that extent takes upon himself the risk of loss and in- 
 jury, the company being responsible for the furnishing of proper 
 cars and motive power, and for the proper making up and run- 
 ning of the trains.* 
 
 The liability of a common carrier as such does not attach in 
 respect to goods in his hands waiting the orders of the owner 
 for shipment.^ The time when the liability ceases depends upon 
 circumstances. If the carrier is to transport the goods for a 
 
 Ohio St. tU. See Staub v. Ken- brown v. G. T. R Ca, 55 Me. 462. 
 
 drick,131Ind.236,6L.E.A.619,note. For definitions of the phrase "act 
 
 Street railway companies are car- of God," see Gordon v. Buchanan, 5 
 
 riers. Spellman v. Lincoln Rapid Yerg. 71 ; Michaels v. N. Y. Cent E. 
 
 Transit Co.» 36 Neb. 890, 20 L. R. A. Co., 30 N. Y. 564; Beard v. BL Cent. 
 
 316.^ R Co., 79 Iowa, 518, 7 L. R A. 280. 
 
 iKeeney v. G. T. R Co., 47 N. Y. *See Loveland v. Burke, 120 Mass. 
 
 525; Chicago, etc. R Co. v. People, 139, 21 Am. Eep. 507, and cases cited. 
 
 67 lU. 11, 16 AmrRep. 599; Louisville, = Mich. South. R v. McDonough, 31 
 
 etc. R Co. V. Wilson, 132 Ind. 517, 18 Mich. 165; Squire v. N. Y. Cent R 
 
 L. R. A. 105, and note. Co., 98 Mass. 239; Duntley v. Boston,. 
 
 2 N. E. Exp. Co. V. Ma Cent R Co., etc. R Ca (N. H.), 9 L. R A, 449, and 
 57 Me. 188; Audenried v. Phila. etc. cases in note. 
 
 R Co., 68 Pa. St 370. SMich. etc. R Co. v. Shurtz, 7 
 
 3 Coggs V. Bernard, 2 Ld. Raym. 909 ; Mich. 515 : Little Rock, eta R Ca v. 
 PoweU V. Mills, 30 Miss. 331; FiUe- Hunter, 42 Ark. 200. 
 
WEONGS FEOM NON-PEEFOEMANCE OF DUTIES. 269 
 
 portion only of the whole distance, and then deliver them to 
 another, his liability as carrier ceases when the goods arrive at 
 the point of intersection, and he then becomes a forwarder 
 only.^ But if his route covers the whole distance, his liability 
 as carrier only ceases Avhen the goods are actually delivered, 
 unless by the custom of the business the consigneee is expected 
 to receive them at the carrier's warehouse ; in whiah case his 
 iiability changes from that of carrier to that of warehouse- 
 man when the goods are received at the warehouse and the 
 consignee has had reasonable time and opportunity to remove 
 them.* 
 
 Prima facie the consignee is entitled to demand and receive 
 of the carrier at the placfe of destination, and to sue for any 
 breach of the carrier's contract, but the presumption is not con- 
 clusive. One may have a special interest in the goods which 
 entitles him to demand and receive"possession ; ' or he may, as 
 vendor to one who has become insolvent, be entitled to exercise 
 ids right of stoppage m transitu,* or some other right which 
 the carrier cannot resist. 
 
 Carriers of persons. — While, for the safe transportation of 
 property, the carrier is responsible as insurer, with the excep- 
 tions already stated, in the case of passengers he undertakes 
 only that he wiU carry them without negligence or fault. As, 
 in the carriage of persons, the slightest failure in watchfulness 
 may be destructive of life or limb, the carrier's undertaking and 
 liability as to his p.assengers goes to this extent: that as far as 
 human foresight and care can reasonably go, he will transport 
 them safely.* He is not liable if injuries happen from sheer 
 
 iGrayv. Jackson, 51 N. H. 9; Pen- full discussion of the points in- 
 
 dergast v. Adajns Exp. Co., 101 Mass. volved, East Tenn., V. & G. R. Co. 
 
 120; Hadd v. U. S. Exp. Co., 53 Vt v. KeUy, 91 Tenn. 699, 17 L. K. A. 691, 
 
 335_ and note. 
 
 ^Morris, etc. R. Co. v. Ayres, 29 N. ^So. Exp. Ca v. Caperton, 44 Ala. 
 
 J. 393; Moses v. Boston, eta R. Co., 101. 
 
 33 N. a 523; Nat. Line, etc. Co. v. <Newsom v. Thornton, 6 East, 17; 
 
 Smart, 107 Pa. St. 493. A reason- Reynolds v. Railroad, 43 N. H. 580; 
 
 able time is "such time as will en- Dougherty v. Miss, etc R Co., 97 
 
 able one living in the vicinity of the Mo. 647. 
 
 place of delivery, in the ordinary * Dodge v. Boston, etc. Co., 148 
 
 course of business, and in the usual Mass. 207, 3 L. R A. 83, note. He is 
 
 hours of business, to inspect and re- not an insurer of the lives or safety 
 
 move the goods." L. L. & G. R. Co. of his passengers. Palmer v. Pa. 
 
 V. Maris, 16 Kan. 333. Consult for a Co., Ill N. Y. 458, 3 L. R A. 352. 
 
270 WEONOS FROM NON-PEEFOKMANCE OF DUTIES. 
 
 ascident or misfortune, where there is no negligence or fault; 
 and where no want of caution, foresight or judgment would 
 preTent the injury; but he is liable fof the smallest negligenqe 
 in himself or his servants.' And where steam is the motive- 
 power, this liability is applied with great strictness.^ But the 
 luggage which it is customary to allow a passenger to take 
 with him without charge beyond what is paid for his own con- 
 veyance, is taken under the like pbligation which attends the 
 carriage of ordinary freight.' 
 
 The responsibility of the carrier begins when the passenger 
 presents himself for transportation, and this he may be said to 
 do when he approaches the place of reception for the purpose.* 
 Therefore if the carrier is negligent in respect to the platforms^ 
 and other approaches provided for the use of passengers, and,, 
 in consequence of their being in an unsafe condition, the per- 
 son coming to be carried ii injured, he may have his action 
 therefor.' The carrier of persons, as well as the carrier of 
 goods, must carry impartially, and he must have a valid ex- 
 cuse for refusing to receive one who offers." It wiU be a suffi- 
 cient excuse that the person refuses to pay his fare in advance 
 when demanded, or that, for some reason, such as that he is 
 intoxicated, he is unfit to be received as a passenger with 
 others.' But the color of a person is no justification for re- 
 
 'Derwortv. Loomer, 21 Conn. 245; cases would constitute one a pas- 
 White V. Fitchburg R. Co., 136 Mass. senger on the tirain of a carrier, it i^ 
 331; Citizens'- St. R Co. v. Twiname, held to be essential that the person 
 111 Ind. 587. should be rightfully on the carrier's 
 
 2 Caldwell v. N. J. Steamboat Co., train, or should be thereon with the 
 47 N. Y. 282; Baltimore & Ohio E. knowledge or consent of the carrier,. 
 Co. V. Miller, 29 Md. 253. or his agent in charge of the train. 
 
 3 Hannibal R. Co. v. Swift, 12 Wall. Woolsey v. C, B. & Q. E. Co., 39 Neb. 
 262; Merrill v. GrinneU, 30 N. Y. 594 798, 25 L. R A. 79. 
 
 As to what a passenger may take as * Ponoher v. N. Y. Cent. R. Co., 49 
 
 baggage, see Noble v. Milliken, 74 N. Y. 363; Ala. etc. R. Ca v. Arnold, 
 
 Me. 225, 77 Me. 359; lU. Cent. etc. R. 80 Ala. 600; Chicago, etc. R. Co.- v.. 
 
 Co. V. Handy, 63 Miss. 609; Staub v. WiLson, 63 111. 167; Snow v. Fitoh- 
 
 Kendrick, 121 Ind. 226, 6 L. R. A. 619. burg R. Co., 136 Mass. 552; Del, L.. 
 
 * For a discussion of the question & W. R. Co. v. Trautwein, 53 N. J, 
 
 who are passengers, see Dewire v. L. 169, 7 L. R. A. 435. 
 
 Boston, etc. R. Co., 148 Mass. 443, 2 « Lake Erie, etc. R. Co. v. Acres, 
 
 L. R. A. 166, and note; McVeety v. 108 Ind. 548; Nevin v. Pullman, etc^ 
 
 St. Paul, etc. R. Co., 45 Minn. 268, 11 Co., 106 111. 232. 
 
 L. E. A. 174 While it is not easy to ''See Elmore v. Sands, 54 N. Y. 
 
 lay down a rule defining what in all 512; Bennett v. Button, 10 N. H. 481.. 
 
WEONGS FEOM NON-PEKFOEMANCE OF DUTIES. 271 
 
 fusing to carry him as others are carried.* The carrier is also 
 under obligations to use the utmost care and diligence in pro- 
 viding safe, suitable and sufficient vehicles for the conveyance 
 of his passengers ; * to carry the passenger therein to the end 
 of his route ; ' to protect him against assaults and other HI' 
 treatment by those employed by or under the carrier's control 
 while on the way ; * to exercise the utmost vigilance and care 
 in maintaining order, and guarding the passengers against vio- 
 lence, from whatever source arising, which might reasonably be 
 anticipated or naturally be expected to occur in view of all the 
 circumstances and of the number and character qf the persons 
 on board ; * and when the journey is completed, to afford the 
 passenger reasonable oppartunity to leave the car with safety.* 
 
 Carriers are permitted to adopt rules for the regulation of 
 their business, and, so far as these are not opposed to law or- 
 unreasonable in themselves, the passenger must observe them •, 
 and if a passenger refuses to comply with any reasonable rule, 
 he may be removed from the vehicle.' But the carrier must 
 see that in the removal no more force is employed than the 
 necessity of the case demands. 
 
 Telegraph companies. — The legislation vhioh permits tele- 
 graph companies to appropriate an easement in highways or 
 on private lands for the construction of their lines, recognizes 
 them as public agencies, and requires them to acconmiodate 
 the public impartially, and to transmit messages in the order 
 in which they are received.' Therefore to some extent in their 
 
 ' See ante, pp. 102 et seq.; 268. '^McGowen v. Morgan's L. & T. E. 
 
 2 Taylor v. G. T. E. Co., 48 N. H. & S. Co., 41 La. Ann. 733, 5 L. R. A, 
 304; Grand Rapids, etc. R. Co. v. 817, and note; Vinton v. Middlesex, 
 Huntley, 38 Mich. 587. eta R. Co., 11 Allen, 304; Atchison, 
 
 3 Hamilton v. Third Avenue R. Co., etc. Co. v. Weber, 33 Kan. 548. It is- 
 53 N. Y. 25; Porter v. Steamboat not an unreasonable rule that the 
 New England, 17 Mo. 290. passenger should procure a ticket 
 
 * Hanson v. European, etc. R. Co., and show it whenever called upon. 
 62 Me. 84; Bryant v. Rich, 106 Mass. See Elmore v. Sands, 54 N. Y. 512: 
 180; Louisville, etc. R. Co. v. KeUy, Jerome v. Smith, 48 Vt. 230, 21 Am. 
 93 Ind. 371; la Cent. R. Co. v. Minor, Rep. 125. 
 
 69 Miss. 710, 16 L. E. A. 1637, and TOOie. 8 They must not discriminate in 
 
 5 Flint V. Norwich, etc. R. Co., 34 their rates, so as to give one patron. 
 
 Conn. 554. See, also, Britton v. At- the preference over another. West.- 
 
 lanta, etc. R Co., 88 N. C. 536. IT. TeL Co. v. Call Pub. Co. (Neb.), 27' 
 
 * Taber v. DeL etc. R. Co., 71 N. Y. L. R. A. 622. 
 489; Hickman v. Miss. etc. R. Co., 
 
 01 Mo. 433. 
 
^72 WRONGS FKOM NON-PSEFOEMANCE OF DUTIES. 
 
 functions and in their responsibilities they resemble common 
 carriers, and are sometinies so designated.^ But the resemblance 
 does not go far ; they receive nothing to carry and are not ex- 
 posed to the risks of theft, robbery, fire and flood which render 
 the undertaking of the common carrier so onerous. They are 
 responsible in sending, receiving and delivering messages on 
 the grounds only that through their negligence errors or un- 
 necessary delays have occurred or that they have failed to 
 transmit and deliver messages impartially. If a message is not 
 sent and delivered within a reasonable time under the circum- 
 stances, or if errors occur in the transmission which are at- 
 tributable to their negligence, they are responsible for all 
 •consequent damages ; " ' but they are not insurers, and, if errors 
 <KX5ur without their fault, they are not responsible.' And any 
 reasonable rule that ttey may make for the regulation of their 
 business, when assented to expressly or by implication by those 
 •dealing with them, will be binding as a contract. For example, 
 a rule is reasonable and valid that the company sending the 
 message will not be responsible for errors occurriilg on con- 
 necting lines.* And if rules which are reasonable in themselves 
 are printed conspicuously on the blanks of the company, they will 
 be deemed assented to by those who make use of the blanks.' 
 
 1 West U. Tel. Co. v. Call Pub. »Sweetland v. DL etc. TeL Ca, 27 
 •Ca (Neb.), 27 L, E. A- 623. In this Iowa, 433, 1 Am. Eep. 285; Breese v. 
 respect telephone companies stand U. S. TeL Ca, •IS N. Y. 132, 8 Am. 
 upon the same footing with tele- Eep. 526. 
 
 ^aph companies. Cent. Union Co. *West. U. "TeL Ca t. Carew, 15 
 
 V. Bradbiiry, 106 Ind. 1; Chesapeake, Mich. 535; West U. TeL Co. v. Mun- 
 
 •etc. Ca V. Bait eta Co., 66 Md. 399. ford, 87 Tenn. 190, 2 L. E. A. 601. 
 
 2 West. U. TeL Co. v. Short, 53 But a telegraph company cannot 
 . Ark. 434, 9 L. R A. 744; West U. stipulate to restrict its liability for 
 
 TeL Co. V. Carew, 15 Mich. 535; Grin- negligence either as to mistakes in 
 
 neU V. West. U. TeL Co., 113 Mass. transmission or delay. Brown v. 
 
 299, 18 Am. Eep. 485. It is held in Postal TeL Cable Co., Ill N. 6. 187, 17 
 
 some states that mental suffering is It R A. 648, and cases cited in note, 
 
 a, ground for the recovery of dam- It can, however, stipulate that a 
 
 ages. Eeese v. West. U. TeL Co., claim for damages shall be presented 
 
 123 Ind. 294 7 L. R A. 583; Young within a specified tima West U. 
 
 V. West U. TeL Ca 107 N. C. 370, 9 TeL Ca v. Daugherty, 54 Ark. 21, 11 
 
 L. E. A. 669. But generally the de- L. R A. 10. But see Francis v. West 
 
 visions support the contrary rule. U. TeL Co. (Minn.), 25 L. R A. 406. 
 
 Francis v. West TJ. TeL Co. (Minn.), » Young v. West U. TeL Ca, 65 
 
 «5 L. R A. 406, and cases cited; N. Y. 163; Clement v. West U. TeL 
 
 Connell v. West U. TeL Co., 116 Ca, 137 Mass. 463; Keiley v. West 
 
 Nev. 34, 20 L. R A. 173. U. TeL Co., 109 N. Y. 231. 
 
WBONQS FEOM NON-PEKFOKMANCE OF DUTIES. 273 
 
 Skilled workmen. — Every man who offers his services to 
 another and is employed, assumes the duty to exercise in the 
 employment such skill as he possesses with reasonable care 
 and diligence; and, in an employment where peculiar skiR is 
 requisite, one who offers his services holds himself out to the 
 public as possessing the degree of skiU commonly possessed by. 
 others in the same employment. But, whether he be skilled or 
 unskilled, the workman undertakes merely for good faith and 
 integrity, and not that his task shall be performed without 
 fault or error ; he is liable to his employer for negligence, bad 
 faith or dishonesty, but not for losses (Consequent upon mere 
 ^errors of judgment.^ 
 
 Professional services.— The implied promise of the pro- 
 fessional man when his services are engaged is not different in 
 the case of the physician and surgeon from what it is in the 
 oase of the attorney, solicitor and propter, and one general rule 
 may be given which will apply to all. 
 
 It has been declared in England that, in order to maintain ■ 
 an action against one's legal adviser, it is necessary " that the 
 professional adviser should be guilty of some misconduct, some 
 fraudulent proceeding, or should be chargeable with gross neg- 
 ligence or gross ignorance." ^ But in this country it has been 
 laid down in one case that the professional man must bring to 
 the practice of his profession a degree of skiU and diligence 
 such as those "thoroughly educated in the profession ordinarily 
 employ." ' So severe a rule, however, is not applicable in the 
 newer portions of the country. The practitioner must possess 
 at least the average degree of learning and skill in his profes- 
 sion in that part of the country in which his services are offered 
 to the public; and if he exercises that learning and skill with 
 reasonable care and fidelity, he discharges his legal duty.* 
 
 1 Page V. Wells, 37 Mich. 415. v. BerghoflE, 90 Mo. 487. It has been 
 
 2Purves V. LandeU, 13 0. & F. 91, said in a recent case: " An attorney 
 
 103. who undertakes the management of 
 
 3McCandless v. McWha, 33 Pa. St. business committed to his charge 
 
 261. thereby impliedly represents that 
 
 ♦Leighton v. Sargent, 37 N. H. he possesses the skill, and that he 
 
 460; Landon v. Humphrey, 9 Conn, will exhibit the diUgenoe. ordinarily 
 
 209; Patten v. "Wiggia, 51 Me. 594; possessed and employed by well- 
 
 Hathom v. Richmond, 48 Vt. 557; informed members of his profession 
 
 Foulks V. Falls, 91 Ind.315; Small v. in the conduct of business such as 
 
 Howard, 138 Mass. 131; Vanhooser he has undertaken." He is not liable 
 18 
 
274: WEONGS FEOM UON-PEEFOEMANOE OF DUTIES. 
 
 Tolufitary services. — Where friends and acquaintances are 
 accustomed to give and do give to each other voluntary serv- 
 ices without expectation of reward, the law will not imply an 
 undertaking for skill, even when the services are such as pro- 
 fessional men alone are usually expected to render. And where 
 there is no undertaking for skill, the want of it can create no 
 liabiKty.i ipj^g « street opinion " of an attorney, given in an- 
 swer to a casual inquiry by one to whom he holds no profes- 
 sional relation, cannot, however erroneous, render him liable.* 
 But when one holds himself out to the public as having pro- 
 fessional skiU, and offers his services to those who accept them 
 on that supposition, he is responsible for the want of the sMU 
 he pretends to have, even when his services are rendered gratui- 
 tously.' 
 
 Statutory daties. — Duties may be imposed by statute upon 
 individuals or corporations for the purpose of giving to th& 
 general public some new protection which the common law 
 did not provide, or in order to give to individuals; liable to in- 
 jury a remedy where none existed before, or more complete 
 remedy than before exiisted. Often all these purposes are had 
 in view, though none of them may be expressly declared. 
 When the latter is the case, the question .of civil liability to- 
 parties who may be damnified by the neglect can only be de- 
 termined on a careful consideration of the statute and of the 
 end it was manifestly intended to accomplish. Certain rules 
 wDl be given for the construction of such statutes which wiU 
 afford some aid in determining the real intent. They are not,. 
 
 for a mistake in reference to a mat- line of practice, ordinarily have and 
 
 ter in which members of the profes- exercise in like cases." Lawson v. 
 
 sion, possessed of reasonable skill Conaway, 37 W. Va. 159, 18 L. E. A. 
 
 and knowledge, may diflEer as to the 637. To the same effect, see State, 
 
 law, untU it has been settled by the Janney v. Housekeeper, 70 Ind. 162, 
 
 courts. See Citizens' Loan, etc. 3 L. E. A. 587; Nelson v. Haning- 
 
 Asso. V. Friedley, 123 Ind. 143, 7 L. ton, 73 Wia 591, 1 L. R A. 719. And 
 
 B. A. 669. And as to physicians: the physician is to be judged by the 
 
 There is no implied contract that practices of his own school, not by 
 
 the physician will cure his patient; those of another. Force v. Gregory, 
 
 he does not insure the success of his 63 Conn. 167, 33 L. E. A. 343. 
 
 treatment. But he "is bound to iBeardslee v. Richardson, 11 Wend, 
 
 bestow such reasonable, ordinary 35. 
 
 care, skill and diligence as physi- 2 pigh v. Kelly, 17 C. B. (N. S.) 194 
 
 cians and surgeons in the same 'McNevins v. Lowe, 40 IlL 309; 
 
 neighborhood, in the same general Hord v. Grimes, 13 B. Mon. 188. 
 
WEONGS FBOM NON-PEEFORMAilCE OF DUTIES. 2T5 
 
 however, very certain or conclusive guides, and the exceptions 
 to them are numerous.' ' 
 
 1. Where a remedy existed at the common law and a new 
 remedy is given by statute, and there are no negative words in 
 the statute indicating that the new remedy is to be exclusive, 
 the presumption is that it is meant to be cumulative, and the 
 party injured may pursue, at his option, either the common- 
 law remedy or the remedy given by the statute. For example, 
 statutory authority to forfeit stock in corporations for non- 
 payment of calls lawfully made upon the subscriptions thereto 
 does not take away the remedy by suit upon the promise to 
 pay contained in the subscription.^ 
 
 2. But the common-law remedy may be excluded by inipli- 
 cation as weU as by express negative words; and where that 
 which constitutes the actionable wrong is permitted on public 
 grounds, but on condition that compensation be made, and the 
 statute provides an adequate remedy whereby the party in- 
 jured may obtain redress, the inference that this was intended . 
 to be the sole remedy must generally be conclusive.' 
 
 3. Where the statute imposes a new duty where none existed 
 before and gives a specific remedy for its violation, the pre- 
 sumption is that this remedy was meant to be exclusive, and 
 the party complaining of a breach is confined to it.* Upon this 
 ground it is held that when the right to exact tolls has been 
 conferred upon a corporation, and a simimary remedy given 
 for their collection, the corporation must find in this summary 
 remedy its sole redress when attempt is made to evade pay- 
 ment.^ And if performance of duty is enjoined under penalty, 
 
 1 Fanners' Turnpike Road V. Gov- Rich. 339; McCormack v. Terre 
 entry, 10 Johns. 389; Tremain v. Haute, etc R. Co., 9 Ind. 383; Soul- 
 Eichardson, 68 N. Y. 617; Cumber- ard v. St. Louis, 36 Mo. 546; Stowell 
 land, etc. Corp'n v. Hitchings, 59 Me. v. Flagg, 11 Mass. 364; Henniker v. 
 306; Jarrett v. Apple, 31 Kan. 693. Contoocook Valley E. Co., 39 N. H. 
 
 2 Goshen Turnpike Co. v. Hurtin, 116. 
 
 9 Johns. 317; Carson v. Mining Co., *Almy v. Harris, 5 Johns. 175; 
 
 5 Mich. 388; Gt. Northern R Co. v. Smith v. Drew, 5 Mass. 514; Commis- 
 
 Kennedy, 4 Exch. 417. sioners v. Bank, 33 Ohio St. 194. 
 
 * So held in many cases where land ' Kidder v. Boom Co., 34 Pa. St. 
 
 or other property has been taken 193; Turnpike Co. v. Van Dusen, 10' 
 
 lor public use under the eminent Vt. 197; Russell v. Turnpike Co., IS 
 
 domain. See Fuller v. Edings, 11 Bush, 807. If the statute provides a 
 
276 WEONGS FEOM NON-PEETGfiMAifCE OF DUTIES. 
 
 the recovery of this penalty is, in general, the sole remedy, 
 even when it is not made payable to the party injured.' Bat 
 if a plain duty is imposed for the benefit of individuals, and 
 the penalty is obviously inadequate to compel performance, 
 the implication wiU be strong that the penalty was meant to 
 be cumulative to such remedy as the common law gives when 
 a daty owing to an individual is neglected.^ And if the duty 
 imposed is obviously meant to be a duty to the public and also 
 to the individual, and the penalty is made payable to the state 
 or to an informer, an individual injured may maintain an action 
 on the case for a breach of the duty owing to him.' 
 
 Statutes for fencing railroads. — "WTien a statute imposes a 
 duty as a regulation of police, without, in terms, pointing out 
 what shall be the rights on the one side and the liabilities on 
 the other, if the duty is neglected it must usually be decided, 
 in considering the remedy, whether the duty is imposed on 
 public grounds exclusively, and if not, what persons or classes 
 of persons are within its intended protection. Statutes for 
 fencing railroads are of this kind. 
 
 At the common law railroad companies, as owners of the 
 land over which their tracks run, are under no obligation to 
 fence them in order to protect their tracks against cattle 
 straying upon them.* If owners of cattle fail in the duty to 
 prevent their straying, they would not only be without rem- 
 edy for any injury their cattle might receive while trespassing 
 on the track, but they might even be liable if cars or engines 
 were injured by the cattle being encountered, provided the 
 owners were negligent in suffering them to stray there.* 
 
 means for the collection of taxes, no Nor. Pa. R Co. v. Behman, 49 Pa. 
 
 other can be implied. See Cooley on St. 101; Price t. N. J. R. Co., 31 N. J. 
 
 Taxation, § 13. 29; St Louis, L M. & S. E. Ca v. 
 
 1 Almy V. Harris, 5 Johns. 175 ; and Ferguson, 57 Ark. 16, 18 L. R. A- 110. 
 
 see Flynn v. Canton Co., 40 Md. 312; » Railroad Ca v. Skinner, 19 Pa. St 
 
 Moore v. Gadsden, 93 N. Y. 12. 298; Williams v. Xew Albany, etc. R 
 
 -Salem Turnpike Co. v. Hayes, 5 Co., 5 Ind. 111. If, however, the cattle 
 
 Cush. 458. are recklessly or wilfuUy run over, 
 
 "See Patiley v. Steam Grange & the company may be responsible. 
 
 Lantern Co., 131 N. Y. 90, 15 L. R A. See Holden v. Rutland, etc. R Ca, 
 
 194 30 Vt 297; Darling v. Boston, eta R 
 
 * Manchester, eta R. v. Wallis, 14 Co., 121 Mass. 118. 
 C. B. 213. 25 Eng. L. & Eq. 373; 
 
WEONGS FKOM NOJf-PEEFOEMAHCE OF DUTIES. 277 
 
 It is no-w very generally required by statute that railroad 
 companies shall fence their tracks.' One purpose of such stat- 
 utes is to protect the lives and Hmbs of the traveling public, 
 who are constantly endangered when cattle are not effectually 
 excluded from the tracks ; but another purpose is to protect 
 the cattle themselves, aind this is commonly done by making 
 railroad companies responsible for the cattle injured or killed 
 by their engines, or otherwise, upon the unfenced tracks. 
 
 "Where a liability for injury to cattle is imposed in general 
 terms, it is held, in some states, that if cattle stray upon the 
 adjoining lands and thence pass upon the track through insuffi- 
 cient fences and are injured, the owners, being themselves in 
 fault for suffering them to s'tray, have no remedy. But in other 
 states the courts hold that it was intended that all persons 
 should have the benefit of the statutory protection.' 
 
 Some other cases of neglect of statutory duty for which indi- 
 viduals injured have been allowed to recover ia actions on the 
 case for negligence are : Neglect of railway companies to ring 
 bells or sound the whistle on approaching a highway crossing, 
 or to put up a sign to warn travelers ; ' moving trains at unlaw- 
 ful speed;* neglecting to keep a bridge in repair,* and neglect- 
 ing to fence or otherwise protect dangerous machinery.* And, 
 
 1 It is said that in some states the ^i^idianapolis, etc. E. Co. v. Mc- 
 
 conunon-law rule •w^as never in Kiimey, 24 Ind. 283; Isbell v. N. Y. 
 
 force, and in such jurisdictions, if eta E. Co., 27 Conn. 393; Curry v. 
 
 cattle stray upon the unfenced Chicago, etc. E. Co., 43 "Wis. 665; 
 
 track of a railroad company and are Tracy v. Troy, etc. E. Co., 38 N. T. 433 ; 
 
 injured, the company is liable if it Cairo, etc. E. Ca v. Murray, 82 DL 76. 
 
 failed to exercise ordinary care. * Eichardson v. N. Y. etc. E. Ca, 
 
 Moses V. So. Paa R Co., 18 Oreg. 385, 45 N. Y. 846; Dimick v. Chicago, etc. 
 
 8 L. R A. 135. For a coUection of R Co., 80 HL 338; Norton v. East. R 
 
 the decisions under statutes of vari- Co., 113 Mass. 366; Correll v. Bur- 
 
 ous states, see note to this case; lington, eta R Co., 38 Iowa, 120; Chi- 
 
 also Twte to Gallagher v. N. Y. & oago, eta R Co. v. Boggs, 101 Ind. 
 
 N. E. R Co., 5 L. R A- 737. It has 522; Becke v. Ma P. R Ca, 102 Mo. 
 
 been said that the jury might find, hiA, 9 L. R A. 157; 111 Cent. R Co. v. 
 
 in a particular case, that, indeiwnd- Slater, 129 IIL 91, 6 L. R A. 418. 
 
 ent of statute, the duty of a com- * Houston, eta R Co. v. Terry, 43 
 
 pany to its passengers might re- Tex 451; Keim v. Union, eta Co., 
 
 quire it to fence its track in order 90 Mo. 314 
 
 to avoid danger from obstruction. ' siitcomb v. Ktchburg R Co., 12 
 
 Donnegan v. Erhardt, 119 N. Y. 468, Allen, 254 
 
 7 L. R A. 527. * Coe v. Piatt, 6 Exch. 752; Fawcett 
 
278 WEONGS FEOM NON-PEEFOEMANCB OF DUTIES. 
 
 as a general rule, when the duty imposed by statute is mani- 
 festly intended for the benefit and protection of individuals, 
 and an individual is injured by a breach of the duty, the com- 
 mon law wiU supply a remedy if the statute gives none.^ 
 
 V. York, etc. R. Co., 16 Q. B. 610; Pauley t. Steam Gauge & Lantern 
 Eeynolds t. Hindman, 33 Iowa, 146. Co., 131 N. Y. 90, 15 L. B. A. 194 
 iCom'is V. Duoliett, 20 Md. 468; 
 
CHAPTEE XXL 
 
 EEDEESS FOK NEGLIGENCE. 
 
 As in every relation of life, and in every position in which 
 one may possibly be placed, some duty is imposed for the ben- 
 efit of others, it is important to consider the general principles 
 which must govern when in any of these cases complaint is 
 made that one has been injured by the neglect of another to 
 observe due care. * 
 
 1. Existence of the duty. — In establishing negligence it is 
 requisite, first, to show the existence of the duty which it 
 is supposed has not been performed. A duty may be general, 
 and owing to everybody, or it may be particular, and owing 
 to a single person only, by reason of his peculiar position.' A 
 duty owing to everybody can never become the foundation of 
 an action until some individual is placed in a position which 
 gives him particular occasion to insist upon its performance. 
 The general duty of a railway company to run its trains with 
 care becomes a particular duty to no one until he is in position 
 to have a right to complain of the neglect.^ In every instance 
 the complaining party must point out how the duty arose 
 which is supposed to have been neglected. And one cannot 
 complain of an injury to which his own neghgence has con- 
 tributed, for this very reason : when it appears that but for 
 his own fault the injury could not have occurred, it also ap- 
 pears that the duty to protect him did not rest upon others, 
 for no one is under obligation to protect another against the 
 consequences of his own misconduct or neglect. 
 
 2. Failure to observe the duty. — The duty being pointed 
 out, the failure to observe it must be shown. This is an 
 afl&rmative fact, the presumption always being, until the con- 
 
 1 See Elliott v. Hall, L. R. 15 Q. B. recover. IlL Cent. E. Co. v. Hall, 73 
 D. 315. HI. 233; Bresnahan v. Mich. Cent. E, 
 
 2 For example, a tramp injiired Co., 49 Mich. 410. 
 while walking on the track cannot 
 
280 , EEDEESS FOE NEGLIGENCE. 
 
 trary appears, that every man has performed his duty.' But 
 the quantity of evidence necessary to make out & prima facie- 
 case of negligence is very slight in some cases, while in others 
 a more strict showing is required.. Often the injury itself af- 
 fords sufficient prima facie evidence of negligence.^ Thus, if 
 the buildings of individuals are destroyed by fire originating in 
 the sparks from a locomotive, the fire itself is held to be evi- 
 dence of negligence, which requires to be overcome by showing 
 that the railway company provides suitable precaution against 
 such an occurrence.' And an injury to a passenger being car- 
 ried by a railroad company charges the company with pre- 
 sumptive negligence. When properly managed, railway car- 
 riage of persons is supposed to be at least as safe as siny other 
 kind of travel, and when crime or negligence or inevitEtble ac- 
 cidents do not intervene, the risk of injury is so small as ta 
 awaken little concern. When, therefore, an injury occurs, it 
 seems perfectly logical to assume that the cause must be found 
 in a failure at some point to observe the caution the business- 
 requires. Presumptions accept the ordinary and probable as- 
 true until it is shown not to be true. Thus, we presume a 
 man innocent of a crime, and that a man and woman living- 
 together as husband and wife, and recognizing each other and 
 being recognized by the community as such, are lawfully mar- 
 ried, and these presumptions are made because in the great 
 majority of cases the fact accords with the presumption. It is- 
 equally reasonable, when an injury to a railway passenger is^ 
 shown, the cause of which is not at once apparent, to assume- 
 that it is chargeable to some want of care in the company or 
 in some of its agents or servants. ^'■Prvma facie, where a pas- 
 senger being carried on a train is injured without fault of his. 
 own, there is a legal presumption of negligence, casting upon 
 the carrier the onus of disproving it." * This is the rule wher& 
 the injury is caused by a defect in the road, cars or machinery, 
 or by want of diligence or care in those employed, or by any 
 
 1 See Clements v. La. eta Co., 44 < See Laing v. Colder, 8 Pa. St 479;. 
 La. Ann. 693, 16 Li E. A. 43. Terre Haute ifc L R Co. v. Clem, 12S- 
 
 2 See Tredwell v. Whittier, 80 CaL Ind. 15, 7 L. R. A. 588; Louisville, N. 
 574, 5 L. R. A, 498. A. & C. R. Co. v. Snider, 117 Ind. 435,. 
 
 3 Piggott V. East Counties R. Co., 3 3 L. R. A. 434; MitcheU v. So. Pact 
 C. B. 229. And see cases on pi 245, R. Co., 87 CaL 63, 11 L. R. A. 130. 
 ante, note. 
 
EEDEESS FOK NEGLIQENOE. 281 
 
 other thing which the company can and ought to control as a 
 part of its duty to carry the passenger safely.^ But this is not 
 conclusive, and the carrier may rebut the presumption and re- 
 lieve himself from responsibility by showing that the injuries 
 arose from an accident which the utmost skill, foresight and 
 diligence could not prevent.^ And as against the proprietors- 
 of stage-coaches, a like presumption is raised by the injury^ 
 but it may be overcome by showing a cause consistent with 
 due care.' 
 
 In the case of an injury by a railway train to one who is 
 not a passenger, the rules of presumption seem to be quite dif- 
 ferent. Common observation does not teach that in the great 
 majority of cases, where one is run over at a railway crossing, 
 the managers of the train are in fault. Thoughtlessness, pre- 
 occupation, intoxication, a reckless pushing forward to cross in 
 advance of the train, — any of these would be as likely to lead 
 to such an injury as carelessness in the management of the- 
 train, and it would be unreasonable to caU upon the railway 
 company to disprove negligence when, to the common mind,, 
 there could be no presumption that negligence existed.* 
 
 But if the statutes required a warning to be sounded as the 
 train approached, and if the injury could be traced to neglect 
 of this precaution, the jprima facie case would be made out.* 
 While the fact of neglect does not conclusively determine that 
 the injury is attributable to it,® yet, as the party approaching- 
 the crossing has reason to expect that the statute will be com- 
 plied with, he is not put to that degree of vigilance and watch- 
 
 1 Thomas v. Phila. & R. R. Co., 148 presumption of negligence from. 
 Pa. St 180, 15 L. E. A. 416; Doyle v. striking an animal upon a crossing, 
 Chicago, St. P. & K. C. E. Co., 77 McKissock v. St. Louis, etc. R. Co.r 
 Iowa, 607, 4 L. R A. 420. 73 Mo. 456. 
 
 2 Carpue v. London, etc. R. Co., 5 ' The violation of a duty specified 
 Q. B. 747; Meier v. Pa. R. Co., 64 Pa. by law is ne^gence. Clements v.- 
 St. 235; Louisville, etc, R. Co. v. La. Electric, etc. Co., 44 La. Ann. 
 Jones, 108 Ind. 551. For a collection 693, 16 L. R. A. 43. 
 
 of the cases on the subject under « Failure to ring a bell or sound » 
 
 discussion, see note to Barnowski v. whistle does not alone make out a 
 
 Helson, 15 L. R. A. 33. case of liability. Quincy, etc. R. Co, 
 
 sChristie v. Griggs, 3 Camp. 79; v. Wellhoener, 73 111. 60; Zimmer- 
 
 Lawrence v. Green, 70 CaL 417. man v. Hannibal, etc. R. Co., 71 Mo, 
 
 <Skelton v. London, etc. R. Co., 476. 
 L. R. 2 C. P. 631. And there is no 
 
282 EEDBESS FOE NEGLIGENCE. 
 
 fulness that otherwise would be required of him, and he goes 
 into evidence with less necessity for fuU and satisfactory ex- 
 planation of his own movements than would otherwise be de- 
 manded. 
 
 The rule applied to carriers of passengers is a general rule 
 which may be applied wherevjer the circumstances impose upon 
 «ne party alone the obligation of special care. For example, 
 while the householder on a prominent street of a city was en- 
 gaged in repairing his roof, a slate f eU from the roof and in- 
 jured a person passing along the street below. It was the duty 
 of the householder to take- such precautions as would reason- 
 ,ably guard against such an injury, and the passer-by had a 
 right to assume that no work being done over the walk was to 
 isubject him to danger.' 
 
 Thus, though the onus of showing negligence is on the party 
 complaining of it, there are some cases in which it is made out 
 hj showing the injury and connecting the defendant with it. 
 
 Is negligence a question of law. — It is important to know 
 whether the question of negligence is one which, under any 
 <;ircumstances, can be disposed of as a question of law, and if 
 so what those circumstances are. 
 
 Questions of law the judge can conclusively pass upon; ques- 
 tions of fact are solved by the jury. If negligence is a ques- 
 tion of law, the judge may say that there is or there is not 
 negligence, under a given state of facts, and the jury must 
 accept this conclusion as they must his ruling on any other 
 question of law. It is manifestly impossible that in the infi- 
 nite variety of human transactions the law can say that, as to 
 certain of them, the party charged with a duty was negligent 
 and as to all others he was not negligent. It is very seldom 
 that one case is in its facts exactly like another which has 
 preceded it, and the decision upon the fault of one can conse- 
 quently throw little light upon the next. Exiles of law must be 
 
 1 Byrne v. Boadle, 3 H. & C. 733. Dixon v. Huns, 98 CaL 884, 30 L. R. 
 
 iSo where snow is thrown from a A. 698. Where a wooden sign falls 
 
 a'oof. Corrigan v. Union Sugar Re- of its own weight, the presumption 
 
 finery Co., 98 Mass. 577; Jewell v. is that the^e was negligence in re- 
 
 G. T. E. Co., 55 N. H. 84 And where spect to its fastenings. St. Louis, L 
 
 s, chisel drops from a platform on M. & S. E. Ca v. Hopkins, 54 Ark. 
 
 which workmen are engaged and 309, 13 L. E. A. 189. 
 injures a person on the sidewalk. 
 
KEDEESS FOE NEQLIGElfOE. 283 
 
 oertain so as to constitute guides, but the rule of one case can 
 never constitute a guide for the next if the facts and conclu- 
 sions flowing from them are of such an intermediate charac- 
 ter and quality that the question whether the one runs parallel 
 to the other is one upon which different minds and different 
 judges would be likely to disagree. There are some cases as 
 to which there should be no real doubt in the minds of fair 
 men. But in a very large proportion of the cases in which 
 negligence is counted upon, the facts are of that ambiguous 
 quality, or the proper conclusions so doubtful, that diiferent 
 minds would be unable to agree concerning the existence of 
 fault or the responsibility for it. If the judge in such a case 
 were to pass upon negligence as a question of law, he must in 
 doing so be endeavoring to enforce a rule of a variable nature, 
 which must take its final coloring from the experience, train- 
 ing and temperament of the judge himself. And it must be a 
 very clear case indeed which would justify the court in taking 
 upon itself this responsibility. 
 
 "Without further discussion the rule may be stated thus : ' 
 If the case is such that reasonable men, unaffected by bias or 
 prejudice, would be agreed concerning the presence or absence 
 of due care, the judge would be quite justified in saying that 
 the law deduced the conclusion accordingly. 
 
 Many cases would be very clear if they were n,ot complicated 
 vrith questions of contributory negligence. Such are the cases 
 of the disregard of a law expressly devised to prevent the like 
 injuries. An instance is that of the failure of a railway train to 
 come to a stop before crossing another road, as is required by 
 statute in some states, whereby another train is run into. Here 
 the negligence is plain, but it might happen that some parties 
 injured by it would by their own negligence be precluded from 
 any redress. And in the great majority of cases the question 
 of negligence on any given state of facts must be one of fact.* 
 And in no case where the facts are in dispute, can the judge 
 
 1 Railway Co. v. Stout, 17 WalL L. E. A- 33. NegUgence is the ab- 
 
 657; Hawks v. Northampton, 121 sence of care, according to the cir- 
 
 Mass. 10. What is care in one case cumstances. O'Toole v. Pittsburgh 
 
 may be negligence in another. Jack- & L. E. E. Ca, 158 Pa. St 99, 23 L. E. 
 
 sonville, T. & K W. E. Co. v. Pe- A. 606. 
 ninsular Land, etc Co., 27 Pla. 157, 17 
 
284 EEDEESS FOB NEGLIGENCE. 
 
 take the case from the jury and decide against negligence as 
 matter of law, unless there is a want of evidence fairly tend- 
 ing to establish the negligence which is counted on.^ 
 
 The principles here stated are as applicable when negligence 
 is relied upon to defeat an action as when the plaintiff seeks to 
 recover upon it.^ 
 
 Contributory negligence. — If the injury complained of is 
 brought about by the concurring neghgence of the party in- 
 jured and of the party of whose conduct he complains, a case 
 arises for the application of the principle that no man shaU 
 base a right of recovery upon his own fault. Between two 
 ■wrong-doers the law wiU. leave the consequences to rest where 
 they have chanced to faU.' Therefore, although the injury 
 complained of was caused by the negligence of the defendant, 
 yet if legal fault contributing to the injury is imputable to the 
 plaintiff himself he will not be heard to complain.* 
 
 Burden of proof. — Where negligence is the ground of an 
 action, the plaintiff, in order to trace the fault for his injury to 
 the defendant, must show the circumstances under which it 
 occurred. If from these circumstances it appears that the fault 
 was mutual, he has, by showing them, disproved his right to 
 recover.^ Many cases hold that there is a legal presumption 
 against neghgence upon which he may rely,® thus casting upon 
 the defendant the burden of showing contributory neghgence.' 
 Other oases, however, hold that negligence in one party pre- 
 supposes the duty of care imposed upon him for the protection 
 
 1 Barber v. Essex, 27 Vt. 63. * See Butcher v. West Va. & P. E. 
 
 2 McMahon v. North Cent. R. Co., 39 Co., 37 W. Va. 180, 18 L. E. A. 519. 
 Md. 438; Orange, etc. E. Co. v. Ward, 8 See Eailroad Co. v. Gladmon, 15 
 47 N. J. L. 560 ; Teipel v. Hilsendegen, WaR 401 ; - McQuilken v. Cent Pao. 
 44 Mich. 461. It is negligence not E. Co., 50 CaL 7. 
 
 to look out on the track when ap- * Weiss v. Pa. E. Co., 79 Pa. St. 387; 
 
 preaching a railroad crossing to Baltimore, etc. E. Co. v. MeKenzie, 
 
 cross it. Cent. E. Co. v. FeUer, 84 81 Va. 71; Thorpe v. Miss, etc E. 
 
 Pa. St. 226. Co., 89 Mo. 650. See Lyman v. Boa- 
 
 8 Gibbon v.Paynton, 4 Burr. 3298; ton & M. E. Co., 66 N. H. — , 11 L. E. 
 
 Clay V. Willan, 1 H. BL 398; Eath- A. 364. 
 
 bum V. Payne, 19 Wend. 399. The 'Eailroad Co. v. Gladmon, 15 Wall, 
 
 doctrine of contributory negligence 401; Wheeler v. Westport, 30 Wis. 
 
 applies to statutory actions. See 392; Cleveland, etc. E. Co. v. Eowan, 
 
 opinion of Eyan, C. J., in Curry v. 66 Pa. St. 893; Louisville & N. E. Co. 
 
 Chicago, etc. R Co.. 43 Wis. 665, and v. Hall, 87 Ala. 708, 4 L. E. A. 710. 
 Little V. Brockton, 123 Mass. 511. , 
 
EEDEESS FOE A'EGLIGENOE. 285 
 
 of the other, and that the plaintiff does not show the existence 
 of this duty until he has first shown his own relative position. 
 In this view the absence of contributory negligence becomes a 
 part of the plaintiff's case, and it should appear, ^;'ima/acii3 at 
 least, before the defendant can be called upon to answer the 
 negligence imputed to himself.^ 
 
 Negligence and recklessness co-operating. — Where the con- 
 duct of the defendant is wanton and wilful, or where it indi- 
 <3ates that degree of indifference to the rights of others which 
 may justly be characterized as recklessness, the doctrine of 
 •contributory neligenoe has no place whatever, and the defend- 
 ant is responsible for the injury he inflicts irrespective of the 
 fault which placed the pfaintiff in the way of such injury.^ If 
 the defendant discovered the negligence of the plaintiff in time 
 by the use of ordinary care to prevent the injury, and did not 
 make use of such care for the purpose, he is justly chargeable 
 with reckless injury, and cannot rely upon the negligence of 
 the plaintiff as a protection." Or it may be said that in such 
 case negligence of the plaintiff only put him in the position of 
 danger and was therefore only the remote cause of the injury, 
 while the subsequently intervening neghgence of the defend- 
 ant was the proximate cause.* 
 
 Tlw general rule. — The English rule, and the one generally 
 adopted in this country, is that if the plaintiff or party injured, 
 by the exercise of ordinary care under the circumstances might 
 have avoided the consequences of the defendant's negligence 
 but did not, the case is one of mutual fault, and the law will 
 neither oast all the consequences upon the defendant, nor wiU 
 it attempt any apportionment thereof.* 
 
 1 "Wendell v. N. Y. etc. R. Co., 91 Mo. 461; State v. Manchester, etcE. 
 
 N. Y. 420; Bovee v. Danville, 53 Vt. Co., 53 N. H. 528; Cooper v. Cent. E. 
 
 183; Hawes v. Burlington, etc. R Co., 44 Iowa, 134; Clark v. Wilming- 
 
 Co., 64 Iowa, 315; Owens v. Eich- ton & W. R Co., 109 N. C. 430, 14 L. 
 
 mond, etc. R. Co., 88 N. C. 503. R A. 749; Smith v. Norfolk & So. K. 
 
 2Hartfleld v. Roper, 21 Wend. 615; Co., 114 N. C. 738, 25 L. R A. 287. 
 
 Mulherrin v. DeL eta R Co., 81 Pa. * See Bait. & Ohio R Co. v. State, 
 
 St 366; Tanner v. Louisville, ^. R 33 Md. 542; and Bui-ham v. St. Louis, 
 
 Co., 60 Ala. 631; Florida So. R Co. v. eta R Co., 56 Mo. 338. 
 
 Hirst, 30 Fla. 1, 16 L. R A. 631; And ^Tufif v. Warman, 5 C. B. (N. S.) 
 
 see Freeman v. Duluth, S. S. & AtL 573; Eailroad Co. v. Jones, 95 U. S. 
 
 R Co.,' 74 Mich. 86, 3 L. R A. 594 439; Jackson v. Com'rs, etc., 76 N. C. 
 
 3 Brown V. Hannibal, etc. R Ca, 50 283; Memphis, etc. R Co. v. Thomas, 
 
286 EEDKESS FOE NEGLIGENCE. 
 
 In Illinois, though the early cases foUowed the English ruley 
 a later case announced the doctrine " that in proportion to the 
 negligence of the defendant should be measured the degree of 
 care required of the plaintiff, that is to say, the more gross the 
 negligence manifested by the defendant the less degree of care 
 will be required of the plaintiff to entitle him to recover." ' 
 And further, that ".the degrees of negligence must be meas- 
 ured and considered, and whenever it shall appear that the 
 plaintiff's negligence is comparatively sHght and that of the 
 defendant gross, he shall not be deprived of his action." 
 This doctrine, known as the doctrine of comparative negB- 
 gence, has however been " greatly modified, if not wholly re- 
 pudiated," by the recent decisions in that state. The rule there 
 is, that before a plaintiff can recover on the ground of mere 
 negligence, he " must show that the negligence of which he 
 complains was caused by the negMgence of the defendant, and 
 that he himself was in the exercise of ordinary care." ^ 
 
 The negligence that will defeat a recovery must he such as 
 proximately contributed to the injury; the remote cause wiU 
 no more be noticed as a ground of defense than as a ground of 
 recovery.' Where the injury is inflicted upon the plaintiff 
 upon his own premises, it is not contributory negligence that 
 he had not guarded his premises as perfectly against such in- 
 juries as prudence might dictate. Thus, it is not contributory 
 negligence that one allows his cattle to pasture by an unf enced 
 railway track, on land belonging to or controlled by himself,, 
 provided it is the fault of the railway company that the track 
 is not fenced.* The law wfll not impute negligence to an ef- 
 fort to preserve human life, if, from the appearances, the party 
 
 51 Miss. 637; Monongahela v. Fischer, 2 Bailey, X, in North Chicago St 
 
 111 Pa. St. 9; Carter v. Chambers, 79 R Co. v. Eldridge, 151 III 543. 
 
 Ala. 333. In a recent case in New s Factors' & T. Ins. Co. v. Werlein, 
 
 Jersey this subject was under dis- 42 La. Ann. 1046, 11 L. E. A 361; 
 
 cussion, and the rule, as stated in Smithwick v. Hall & U. Co., 59 Conn, 
 
 the text, was aflarmed. The opinion 261, 12 L. R A. 279; Lepnick v. Gad- 
 
 containa a valuable statement of the dis (Miss.), 28 L. R. A. 686; State, 
 
 law. SeeStatev. Lauer,55N. J. Ij.205, Monger v. Lauer, 55 N. J. L. 205, 20 
 
 20 L. R. A. 61. See, also, Evans v. L. R. A. 61; Smith v. Norfolk & Sa 
 
 Adams Exp. Co., 123 Ind. 362, 7 L. E. R. Co., 114 N. C. 728, 25 L. R. A. 287. 
 
 A. 678, and note. i Blaine v. Ches. & O. R Ca, 9 W, 
 
 1 Breese, J., Galena, etc. R Co. v. Va. 253. 
 Jacobs, 20111.478,496. 
 
BEDEESS FOE NEGLIGENCE. 28T 
 
 had reason to believe he might succeed in the attempt though 
 not without danger of failure and injury to himself.' But- 
 ■where a party, in the exercise of his own right, is in the enjoy- 
 m.ent of that which is common to others also, or which may in 
 any way narrow, impede or restrict the enjoyment of rights- 
 by others, his duty to observe a vigilance proportionate to the^ 
 danger of interference is manifest. Thus, one about to cross- 
 a railway track by the public highway, where the liability to- 
 collision is great, cannot recover for an injury if he drives upon 
 the track without looking for approaching trains, even though 
 the railway company has neglected to souhd the alarm which 
 the statute requires of it at such places.^ 
 
 Negligence of infants. — It was held in New York that, where" 
 a child two years of age was run over while at play in the pub- 
 He street, he could not recover, because it was negligent for 
 him to be thus exposed to injury. It was held to be the duty 
 of parents or others having charge of him to judge for him,, 
 and if they neglected this duty, their negligence was to be im- 
 puted to him.' The English rule is similar,* and the New 
 Tork case has been followed in several states.' Generally in 
 this country, however, tlje contrary rule is adopted. In oner 
 case it was said " 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." * But the fact that a party who' 
 
 1 Eckert V. Long Island, eta R Co., ' Hartfleld v. Roper, 21 Wend. 615, 
 43 N. Y. 503. And in sudden emer- < Waite v. N. E. R Co., El. Bl. & 
 gencies persons are not held to the EL 719; Singleton v. East. Counties 
 same degree of caution as in other R Co., 7 C. B. (N. S.) 387. 
 
 cases. Union P. R Co. v. McDonald, * Lynch v. Smith, 104 Mass. 53, 6 
 
 153 U. S. 263. But this principle is Am. Rep. 188; Leslie v. Lewiston, 63 
 
 said to be inapplicable where one is Me. 468; JeffersonviUe R ' Co. v. 
 
 put in such an emergency by his Bowen,40 Ind. 545; Meeks v. So. Pac. 
 
 own negligence. Haetsch v. Chicago R. Co., 53 CaL 602; Casey v. Smith, 
 
 6 N. W. R Co., 87 Wis. 304 153 Mass. 394; Fitzgerald v. St. Paul, 
 
 2 Railroad Co. v. Houston, 95 U. S. M. & M. R Co., 39 Minn. 336, 43 Am. 
 697; Wheelwright v. Boston, etc. Co., Rep. 213. 
 
 135 Mass. 225; Tolman v. Syracuse, "Redfleld, C. J., in Robinson v. 
 
 etc. Ca, 98 N. Y. 198; Rupard v. Cone, 22 Vt. 213, 234. See, also, Kay 
 
 Chesapeake, etc. R Co., 88 Ky. 280, t. Pennsylvania R Co., 65 Pa. St. 269, 
 
 7 L. R A. 316; Freeman v. Duluth, 3 Am. Rep. 628; Daley v. Norwich, 
 S. S. & A. R Ca, 74 Mich. 86, 3 L. R etc. R Co., 36 Conn. 591. And see 
 A, 594 further for valuable discussions of 
 
588 EEDEES3 FOE NEGLIGENCE; 
 
 is not suijv/ris is found in a place of danger does not establish 
 a case of negUgenoe against his proper custodian. Very young 
 •children are properly allowed some liberties. Moreover, a child 
 in a dangerous position may have reached it by escape from 
 his proper custodian, who was at the time in the exercise of 
 proper care. In such a case no question ofsjoncurring negli- 
 gence arises, and whether suit is brought by the parent for the 
 injury to his rights as such, or by the child, there is nothing 
 which, under the doctrine of any of the courts, should preclude 
 recovery.' 
 
 But the extreme youth of a child is always an important cir- 
 cumstance in its bearing on the question of negligence in the 
 party by whose act or negligence he is injured.^ One is re- 
 quired to exercise in his own conduct, where it may possibly 
 ^result in injury, a degree of care commensurate with the ap- 
 parent immaturity or imbecility that exposes that other to 
 peril.' Thus, one driving rapidly along the highway where he 
 sees boys engaged in sport must take notice of their immatu- 
 rity and govern his action accordingly.* 
 
 Tliat the injured party, subsequent to the injury, was guilty 
 of negligence which aggravated it, does not bar a recovery; the 
 negligence must have concurred in producing the injury.* 
 
 Negligence of third parties. — In general, the negligence of 
 third parties concurring with that of defendant to produce an 
 injury is no defense.' In some cases, however, where the per- 
 son injured was for the time being with and under the'direc- 
 tion of the third party whose negligence concurred in produc- 
 
 'this subject, where the English rule ^ gee Cosgrove v. Ogden, 49 N. Y. 
 
 was rej)udiated, Newman v. Phillips- 355, 10 Am. Rep. 361. 
 
 . burgh, etc. R Co., 53 N. J. L. 446, 8 L. 3 Cleveland Boiling Mill Co. v. Cor- 
 
 R. A. 843; Chicago City R. Co. v. WU- rigan, 46 Ohio St. 283, 3 L. R A; 385. 
 
 cox, 188 IlL 370, 21 L. R. A. 76; Win- * Raih-oad Co. v. Gladmon, 15 Wall, 
 
 ter V. Kansas C. R. Co., 99 Mo. 509, 401; Lynch v. Smith, 104 Mass. 53, 6 
 
 6L. R.A. 536. The note to Chicago Am. Rep. 188; Kerr v. Forgue, 54 EL 
 
 City R. Co. V. 'Wilcox, in 21 L. R. A. 483, 5 Am. Rep. 146. 
 
 76, contains a summary of the de- ^Loeser v. Humphrey, 41 Ohio St 
 
 cisions on the question. 378; Page v. Sumpter, 53 Wis. 653; 
 
 1 Railroad Co. v. Stout, 17 Wall. Hathorn v. Richmond, 48 Vt. 557; 
 
 657; Mulligan v. Curtis, 100 Mass. 513; City of Goshen v. England, 119 Ind. 
 
 Mangam v. Brooklyn R. Co., 88 N. Y. 368, 5 L. R. A. 353. 
 
 455; Gavin v. Chicago, 97 lU. 66; Far- 'North Pa. R. Co. v. Mahoney, 57 
 
 ris V. Cass Ave. etc. Co., 80 Mo. 325. Pa. St. 187; Wabash, etc. R. Ca v. 
 
 Shacklet, 105 la 364 
 
EEDEESS FOE NEGLIGENCE. " 289 
 
 ing the injury, this negligence has been held to be a bar to any 
 recovery. In Thorogood «. Bryan^ where the plaintiff, in 
 alighting from a public omnibus, was knocked down and in- 
 jured by an omnibus belonging to the defendant, the jury was 
 instructed that if the negligence of the vehicle he was riding 
 in contributed to the injury he could not recover, for he must 
 be considered a party in the negligence. This case has been 
 frequently followed in this country,- but in several states its 
 doctrine is repudiated.* In New Jersey it is held that the 
 negligence of the driver of a street-car in which the plaintiff 
 was riding was not to be imputed to the plaintiff as a bar to 
 any action for the injurious negligence of a third party.* 
 
 Contracts against liability for negligence.-^ While it has 
 been held that common carriers may agree for a limitation of 
 their common-law liability, yet public policy forbids that they 
 should be allowed to make contracts which assume to exempt 
 them not only from liability for the inevitable risks attendant 
 upon their business, but for risks from the negligence of them- 
 selves and servants. In numerous cases it has been held that 
 they could not by any stipulation relieve themselves from re- 
 sponsibility for injuries resulting from a want of ordinary care.' 
 Therefore, any general stipulation inserted in a carrier's bill of 
 lading or receipt, by which the consignor is made to take upon 
 himself the risks of conveyance, or any special risks like those 
 of fire, will be read with an implied exception of injuries from 
 
 1 8 C. B. 115. a few years, and the reasoning of 
 
 2 Otis V. Janesville, 47 Wis. 432; Thorogood v. Bryan is now ahnost 
 
 Crescent V. Anderson, 114 Pa. St. 643; universally condemned. See Nisbet 
 
 Joliet V. Seward, 86 IlL 403; Lake v. Gamer, 75 Iowa, 314, 1 L. p. A. 
 
 Shore, etc. E. Co. v. MiUer, 25 Mich. 153; Dean v. Pa. R Co., 139 Pa. St. 
 
 274. 514, 6 L. E. A. 148; Becke v. Mo. Pac. 
 
 'Eobinson v. N. Y. Cent. R Co., R Co., 103 Mo. 544, 9 L. R A, 157; 
 
 69 N. Y. 11, 33 Am. Rep. 1. Union P. R Co. v. Lapsley, 4 U. S. 
 
 * Bennett v. N. J. R Co., 36 N. J. App. 543, 16 L. R A. 800. 
 335. And see Little v. Haokett, 116 » Colton v. Cleveland, etc. R Co., 
 
 U. S. 366; Transfer Ca v. KeUy, 36 67 Pa. St 311; Ga. R Co. v. Gann, 
 
 Ohio St. 86. Recently Thorogood v. 68 Ga. 350; Cream City, etc. Co. v. 
 
 Bryan has been overruled in Eng- Chicago, etc R Co., 68 Wis. 93; 
 
 land, in as far as it applies to public Smith v. N. C. A. Ca, 64 N. C. 335; 
 
 conveyances. See The Beduina, L. Ma Pac. R Co. v. Ivey, 71 Tex. 409, 
 
 R 13 Pub. Div. 58. And in this 1 L. R A. 500; Durgin v. Am. Exp. 
 
 country the doctrine has been fre- Ca (N. a), 9 L. R A. 45a 
 quently up for consideration within 
 19 
 
290 
 
 EEDEBSS rOE NEGLIGENCE. 
 
 the want of ordinary care on the part of the carrier himself 
 or his servants." Carriers of passengers, it is also held, cannot 
 reMeve themselves from the obligation to observe ordinary 
 care by any contract whatsoever, even in the case of " drovers' 
 passes," ^ or in case where free passage is given as mere matter 
 of courtesy or favor.' In several states, however, it is held to 
 be entirely competent to contract against liability for any neg- 
 ligence but the personal negligence of the carrier himself; 
 which, in the case of corporations, would embrace any negli- 
 gence of their servants, and of all but the managing board.^ 
 The .authorities are in a very unsettled condition.* 
 
 Restrictions of liability by telegraph coiApanies. — It is 
 customary for telegraph companies to send messages subject 
 to a condition that they shall not be responsible for errors or 
 delays, unless the message is repeated at the sender's cost, and 
 such conditions have frequently been supported as reasonable.* 
 But the condition, to be available, must be brought to the knowl- 
 edge of the party Interested in the message, sender or receiver,' 
 and, in the absence of a provision requiring the message to be 
 
 1 Condict V. G. T. R Co., 54 N. Y. 
 500; MoFadden v. Miss. P. R. Co., 92 
 Mo. 343. It has been held that a car- 
 rier may. by a just and reasonable 
 stipulation and in consideration of 
 reduced freight charges, limit his 
 liability to a certain agreed valua- 
 tion. Richmond & D. B. Co. v. Payne, 
 86 Va. 481, 6 li. R A. 849; Louisville 
 
 6 N. R Co. V. Gilbert, 88 Tenn. 430, 
 
 7 L. R A. 163. And see BaUou v. 
 Earle, 17 R L 441, 14 L. R A. 43a 
 
 2N. Y. Cent. R Co. v. Lockwood, 
 84 tr. S. 357;. Carroll v. Miss. P. R 
 Co., 88 Mo. 239; Ohio, etc. R Co. v. 
 Selby, 47 Ind. 471; Meuer v. Chicago, 
 M. & St P. R Co. (S. Dak.), 25 L. R 
 A. 81. 
 
 3 Pa. R Co. V. Butler, 57 Pa. St. 335; 
 m. Cent R Co. v. Read, 87 lU. 484. 
 
 * Wilson V. N. Y. etc. R Co., 97 N. 
 Y. 87; Kinney v. Cent R Co., 33 N. 
 J. 407, 84 N. J. 513. See Rogers v. 
 Kennebec, eta Co., 86 Me. 261, 25 L. 
 R A. 491. 
 
 5 See N. Y. Cent R Co. v. Lock- 
 wood, supra; also cases cited in note 
 to Muldoon V. Seattle City R Co., 
 7 Wash. 528, 22 L. R A. 794 
 
 6 Grinnell v. West TJ. TeL Ca, 113 
 Mass. 299, 18 Am. Rep. 485; West U. 
 TeL Co. V. EdsaU, 63 Tex. 668; West 
 U. TeL Co. V. Stevenson, 128 Pa. St 
 442, 5 L. R A, 515; Pi-imrose v. West 
 U. TeL Co., 154 U. S. 1; Birkett v. 
 West U. TeL Co. (Mich.), 61 N. W. 
 Rep. 645. Such a stipulation has, 
 however, been frequently held void 
 as to mistakes caused by negligence. 
 See Brown v. Postal TeL Co., Ill N. 
 C. 187, 17 L. R A. 648; Wertz v. 
 West U. TeL Co., 7 Utah, 446, 13 h. 
 R A. 510; Pepper v. West U. TeL 
 Co., 87 Tenn. 554, 4 L. R A. 660; West 
 U. TeL Co. V. Short, 53 Ark. 434 9 L. 
 R A.744 
 
 'N. Y. eta TeL Ca v. Dryburg, 35 
 Pa. St 398. 
 
KEDEESS FOE NEGLIGENCE. 
 
 291 
 
 repeated, it would be void as an attempt by the company to 
 relieve itself of the consequences of its own fault.* 
 
 Though the reasons which forbid such contracts have special 
 force in the business of carriers and telegraph companies, they 
 apply universally and. should be held to defeat all contracts by 
 which a party undertakes to put another at the mercy of his 
 own faulty conduct. 
 
 1 Trtie V. Int. Tel. Co.. 60 Me. 9. 
 There may, however be a stipulation 
 requiring a claim to be presented 
 within a certain time. West. U. Tel. 
 Co. V. Daugherty, 54 Ark. 31, 11 L. 
 R A. 103. But a limitation of lia- 
 bility cannot be extended beyond 
 the words creating the limitation. 
 West U. Tel. Co. v. Yopst, 108 Ind. 
 348, 3 L. E. A. 334 A stipulation 
 against liability for delays in unre- 
 
 peated messages wUl not relieve a 
 company from liability where it re- 
 ceives for transmission ah important 
 message, when it knows that its 
 wires are down, and does not inform 
 the sender of its inability to send 
 the message," or give him an oppor- 
 tunity to send it over another line. 
 Pac. Post. Tel. Co. v. Fleischner, 66 
 Fed. Rep. 899. 
 
CHAPTER XXn. 
 
 EVIL MOTIVE. 
 
 It is clear from what has been said in the preceding pages 
 that when the question at issue is whether one person has suf- 
 fered legal wrong at the hands of another, the good or bad 
 motive which influenced the action complained of is generally 
 of no importance whatever. " An act which does not amount 
 to a legal injury cannot be actionable because it is done with a 
 bad intent." * Whatever one has a right to do, another can 
 have no right to complain of .^ 
 
 It has been shown that when a government official assumes 
 an authority which the law does not warrant him in exercis- 
 ing, he is personally responsible, whatever may have been his 
 motive.' But if the circumstances were such that no individual 
 can be held responsible, as may be the case where the injury 
 was done in time of war, in the exercise of orders from a supe- 
 rior authority which the agent was powerless to resist, the 
 wrong may be the same, but the remedy is by an appeal to the 
 justice of the govemmentj or to such court of claims or audit- 
 ing board as the government may empower to hear and allow 
 claims against itself.* 
 
 And, as has been seen, an exercise of legislative authority 
 can afford no ground for legal complaint.' The rule is uni- 
 versal that legislation shaU not be assailed in the courts upon 
 an allegation of malice, bad faith or corruption in passing it." 
 The machinery of one department of the government may not 
 
 ' Parke, B., in StoVen^on v. Newn- see Johnson v. Jones, 44 IlL 142; Wil- 
 
 ham, 13 C. B. 885, 897. son v. Franklin, C3 N. C. 259. 
 
 2 This question is discussed, in con- * Durand v. Hollins, 4 Blatch. 451 ; 
 
 nection with the citation of a num- Ford v. Surget, 46 Miss. 130. 
 
 her of cases, in Chambers v. Bald- * In illustration, see Charles River 
 
 ysriu, 91 Ky. 121, 11 L. R. A, 545, and Bridge v. Warren Bridge, 11 Pet 
 
 note. 420. 
 
 ' This point is fully discussed in « See Doyle v. Ins. Ca, 95 IT. a 535; 
 
 Ex parte MilligEm, 4 Wall 3. And Sunbury, etc. E. Co. v. Cooper, 33 
 
 Pa. St 278. 
 
EVIL MOTIVE. 293 
 
 be employed by individuals to assail another department.* But 
 legi^btores exceed the limits of their lawful -authority when 
 they order a trespass upon the property or -persons of individ- 
 uals, or when they provide for takhig individual property for 
 the public use without making compensation. 
 
 The general rule — Bad motive by itself, then, is no tort. 
 While malicious motives make a bad act worse, they cannot 
 make that wrong which in its own essence is lawful.' The charge 
 in l^al proceedings that one has wrongfully and unlawfully 
 done the act complained of, amounts to nothing unless a cause of 
 action is otherwise allied.* In Mohan v. JBrown,* the plaiat- 
 i£F declared against the defendant for wantonly and maliciously 
 erecting on his own premises a high fence near to and in front 
 of the plaintiff's window, without benefit or advantage to him- 
 self, and for the sole purpose of annoying the plaintiff, thereby 
 obstructing the air and light from entering her windows, and 
 rendering her home uninhabitable. It was held that whether 
 the motives of the defendant were good or bad, the action 
 would not He, no legal right of the plaintiff being infringed.* 
 
 So it has been held' that no action would lie for maliciously 
 adopting a trade-mark to the prejudice of a plaintiff who has 
 no exclusive right to appropriate it;* or for throwing open 
 one's land to the public so that they may pass over it, thereby 
 avoiding a toll-gate.^ Illustrations might be multiplied indefi- 
 nitely. On the other hand, the most correct motive, or even 
 an inability to indulge a motive, will not protect one who in- 
 vades the right of another. The legal wrong is in the injury 
 done and not in motive.* 
 
 Exceptions. — We have seen that malice is said to be an in- 
 gredient in the wrongs of slander and Ubel. If the damaging 
 imputation is false the law supplies the malice, and will neither 
 
 ' See State ▼. Kolsem, 130 Ind. 434^ « Glendon Iron Ca v. Uhler, 75 Pa. 
 
 14 L. R A. 566. St 467. 
 
 s JenUns v. Fowler, 24 Pia. St 308, 'Auburn, etc P. E. Ca v. Doug- 
 
 310. lass, 9 N. Y. 444. 
 
 'Gerard V. Lewis, L.E. 3 G P. 305. ^The motive by which a party 
 
 * 13 Wend. 26L was controlled in the conversion of 
 
 *This is the American doctrine, property is of no avail as a defense. 
 
 See Abendroth v. Manhattan R Ca, Bait & O. R Ca v. O'Donnell, 49 
 
 132 N. Y. 1, 11 L. R A- 63^ and note, Ohio St 489, 21 L. R A. 117. And 
 
 see Moran v. Smell. 5 W. Va. 26. 
 
EVIL MOTIVE. 
 
 require it to be proved nor give immunity because it is dis- 
 proved. That malice is an element of wrong in a case in vrhich 
 the proof of it is, unimportant must be purely a legal fictioiu 
 Thus, in most cases the exception to the general rule is only 
 apparent. 
 
 The cases in the law^ of slander and libel in which the actual 
 existence of malice is essential to constitute an actionable 
 wrong are those in which the law gives a privilege to speak or 
 otherwise pubhsh what at the time the party believes, provided 
 it is done in good faith.* In such cases the law itself defines 
 the limit. The privilege is to speak in good faith but not 
 otherwise, and the party who maliciously publishes what proves 
 to be untrue does not avail himself of the privilege, and there: 
 fore cannot claim its protection. Precisely the same may be 
 •said of the: cases of malicious prosecution. Every man is at 
 liberty to make use Qf the machinery of the law in the asser- 
 tion of any legal-deman/i which he has probable cause to be- 
 lieve exists in his.favor against another, and also in the prose? 
 cution of auy criminal charge against another which he has 
 probable cause to believe is well founded. This is his lawful 
 privilege, and he is protected in its exercise notwithstanding 
 the demand or the criminal charge proves on investigation to 
 be unfounded. But he is not privil6ged to seize the property 
 of another upon legal process for a demand which he has no 
 reasonable ground for asserting, or to defame another by a 
 criminal prosecution on a charge which he has no reason to be- 
 lieve is well founded. Good faith in these cases is the limit of 
 the privilege." 
 
 Necessity for caution. — But it cannot be said that bad mo- 
 tive is unimportant when one is exercising undoubted legal 
 rights. All rights must be exercised with due regard to the 
 rights of others, and action bfecomes unlawful when it becomes 
 negligent. It may be that" if one shall assert his rights with 
 no other object than annoyance, he should be put to the ob- 
 servance of a higher degree of care than if what he was doing 
 had in view a beneficial purpose. It would seem that there 
 must certainly be some difference between a man who proposes 
 
 iFor illustrations see ante, p. 68 '^See Tabert v. Cooley, 46 Minn- 
 etseq. 366, 13 L. R. A- 463. 
 
Evn, MOTivB. 295 
 
 to keep ■within the limits of legal rights, and also to cause no 
 annoyance, and the man who proposes to cause what annoy- 
 ance he finds possible without exceediag those limits. 
 
 Generally motive becomes important only when the damages 
 for a wrong are to he estimated. It then comes in as an ele- 
 ment of mitigation or aggravation and is of the highest im- 
 portance. While an unintended blow, though negligent, is 
 excused, a blow meant for an aflfrdnt, though no heavier, is 
 justly punished with heavy damage. 
 
INDEX. 
 
 References are to pages. 
 
 ABATEMENT OF NUISANCE (see Nuisance). 
 ABUSE OF LICENSE (see License). 
 ABUSE OF PROCESS (see Process). 
 ACCESSION OF PROPERTY — 
 what is a right by, 1& 
 
 ACT OF GOD (see Innkeepers; Common CAaRiERS> 
 ACTIONS — 
 local,' 18a 
 transitoiy, 18& 
 
 distinction between, 188L 
 instances of, 188. 
 for foreign tort, 188. 
 
 nature of wrong, 188. 
 for trespass on lands in foreign country, 188L 
 English rule, 188. 
 American rule, 188, 189. 
 as to right of action unknown at common law, 189. 
 ex contractu, for the redress of what, 3. 
 ex delicto, for the redress of torts, 3. 
 ADOPTED CHILD (see Family Rights) — 
 
 rights of, 14 
 ADVICE OF COUNSEL (see Malicious ProsecutionX 
 AGENT (see Ratification; Corporations; Torts). 
 
 ANIMALS (see Cattle) — 
 
 domestic, injuries to, a trespass, 176. 
 
 dead, as nuisance, 251. 
 
 diseased, as nuisance, 354 
 
 duty of owner to restrain, at common law, 136. 
 
 modification of common-law rule, 136. 
 
 statutes requiring fences against, 136. 
 
 injuries from beast being driven along highway, 137. 
 
 vicious animals, injuries by, 137. 
 
 no action for trespasses of dogs, 137. 
 
 owners must take notice of propensities, 138. 
 sufficiency of notice, 138. 
 
 duty to protect against, is upon the keeper, 139. 
 
 doctrine of contributory negligence applies to such cases, 139. 
 
298 rsTDEX. 
 
 Sefereneea are to pages. 
 
 ANIMALS (continued) — 
 
 vicious animals, right to kill, 130. 
 
 injuries by, of several owners, 130. 
 wild animals, injuries by, 130. 
 
 liability for, rests on negligence, 180. 
 
 ANNOYANCE WITHOUT FAULT (see Nuisance). 
 APPRENTICE (see Master and Apprentice). 
 ARBITRATION — 
 
 boards of, to be useful must have powers of courts, 3. 
 ARMS — 
 
 right to bear, 110. 
 ARTISTS — 
 
 protection of, see Copyright. 
 ASSAULT (see Wrongs Affecting Personal Security) — 
 
 may be an, without a battery, 9. 
 
 threats do not constitute, 9. 
 
 ASSENT TO BATTERY (see Wrongs Apfectinq Personal Security). 
 
 ASSESSORS — 
 
 liability of, to private suits, see Officers. 
 
 ASSOCIATION IN TORTIOUS ACTS (see Partnership; Corporation; 
 
 Mobs). 
 ASSUMPSIT— 
 
 when may be brought on waiver of tort, see Waivee op Tort. 
 ATTACHMENT — 
 
 malicious suing out^ see Maucious Prosecution. 
 
 ATTORNEYS— 
 
 how far liable for acts of officers, 38, 
 
 when liable for malicious prosecution, 38. 
 
 advice of, as defense to action of malicious prosecution, 54 
 
 frauds ou client by, 215, 216. 
 
 rule as to degree of skill required, 273. 
 
 in England, 27a 
 
 in America, 273. 
 
 AUTHORS — 
 
 protection of, see Copyright. 
 
 AUTOGRAPHS — 
 
 property in, see Copyright ; Incorporeal Rights. 
 
 B. 
 
 BAGGAGE — 
 
 liability of carrier as to, 270. 
 what is, 270. 
 
 BAILEES (see Bailment ; Conyeesion) — 
 conversion by, 183. 
 
INDEX. 299 
 
 References are to pages. 
 BAILMENTS — 
 
 definition of, 263. 
 
 classification' of, 26% 
 
 care required in, dependent on character of, 263. 
 
 for benefit of bailor, cai-e required in, 262. 
 
 for benefit of bailee, care required in, 264. 
 
 for mutual benefit, 264. 
 
 illustrations of, 365. 
 
 care required in, 365. 
 to innkeepers, 365. 
 to common carriers, 267. 
 
 BATTERY (see Assault ; Wrongs Affecting Person al Security) — 
 what it involves, 9. 
 
 BEASTS (see Animai^ ; Diseased Beasts). 
 
 BEES — 
 
 property in, see Animat.s. 
 
 BETTERMENTS (see Personai Property) — 
 what are betterment laws, 172. 
 improvements made under claim of title, 172. 
 
 BIBLE — 
 
 reading of in schools, 103. 
 
 BILL OF LADING — 
 
 limitation of liability in, 289. 
 BILLIARD ROOMS — 
 
 as nuisance, 249. 
 BOARDING-HOUSE KEEPERS — 
 are not innkeepers, 266. 
 have no lien on boarder's goods, 267. 
 BOUNDARIES OF LAND, 116. 
 
 extend to middle of highway, 116. 
 center of stream, 117. 
 center of lake, 118. 
 
 highwater mark, where tide ebbs and flows, 118. 
 BURDENS — 
 
 right to exemption from exceptional, 107. 
 
 BURDEN OF PROOF — 
 
 in action for defamation, 9. 
 
 to show malice, 55. 
 
 in cases of fraud, 191. 
 
 in actions against master, 239. 
 
 as to negligence in spread of fires, 244. 
 
 to show negligence, 282. 
 
 as to contributory negligence, 384. 
 
 BURIAL RIGHTS — 
 
 injuries in respect to, 88. 
 
300 rNDEX. 
 
 Beferencea are to page». 
 BUSINESS— 
 
 right to favor relatives in, 100. 
 
 c. 
 
 CALAMITY — 
 
 nuisances which threaten, ses Nuisanck 
 
 CANDIDATES — 
 
 privilege in discussion concerning, 73. 
 
 CARE (see Neougence). 
 
 CARRIERS (see Common Carriers; Carriers of Persons)- 
 
 joint liability, 43. 
 
 liability of, for negligence in transporting on Sunday, see Wrong- 
 doers. 
 
 CARRIERS OF PERSONS — 
 
 liability of persons carried, 369 et seg. 
 
 extent of liability, S69. 
 
 not liable for accident, 269, 270. 
 
 liable for carrier's baggage as for freight, 370. 
 
 when responsibility of, begins, 370. 
 as to platforms, 370. 
 
 must carry impartially, 370. 
 
 may demand pay in advance, 370. 
 
 may eject disorderly persons, 370. 
 
 under utmost care as to vehicles, etc., 371. 
 
 must protect passenger from assaults, etc., 371. 
 
 may adopt rules, 271. 
 
 liable for excessive force in ejecting passenger, 371. 
 
 whether can contract against liability for negligence, 389. 
 CARRYING CONCEALED WEAPONS (see Arms). 
 CASE, SPECIAL — 
 
 test for distinguishing between trespass and, 176. 
 CATTLE (see Animals)— , 
 
 damage feasant, distress of, 18. 
 statutory regulations as to, 1& 
 CAUSE (see Proximate Cause). 
 CAVEAT EMPTOR, 191. 
 CEMETERY— 
 
 rights in, see Bdrial Rights. 
 CHARACTER — 
 
 confidential inquiries concerning, 71, 73. 
 CHARITY AND NECESSITY — 
 
 works o^ what are, i5. 
 CHILDREN (see PaeentX 
 CHURCH MATTERS — 
 
 privilege of communications in, 70. 
 
INDEX. 301 
 
 References are to pages, 
 
 CrVIL LIBERTY (see Civil Rights! Civil and Political Rights) — 
 arises from the definition of rights, 3. 
 distinguished from political liberty, 4. 
 defined, 4 
 
 CIVIL POWER — 
 
 supremacy over military, 109. 
 
 C^TVIL RIGHTS (see Civil and Political Rights ; Religious Liberty) — 
 all, supposed to be equal, 11. 
 not the same in all classes, 11. 
 consist in — 
 
 the right to exemption from restraint without beneficial purpose, 10. 
 
 the right to participate in advantages of society, 10. 
 religious liberty a prominent right, 10. 
 
 CIVIL AND POLITICAL RIGHTS — 
 wrongs respecting, 99. 
 what embraced in civil rights, 99. 
 state regulation of employment, 99. 
 
 what are lawful employments, how determined, 99L 
 must be no exclusion from lawful employments, 99. 
 exceptions for imbecility, eta, 99. 
 certain employments subject to regulation, 100. 
 what are reasonable regulations, 100. 
 as to exclusion of persons or classes, 100. 
 as to monopolies, 100, 
 requirement of a license, 100. 
 right to form business relations, 100. 
 
 preventing one from procuring employment, 100. 
 by false representations, 101. 
 by conspiracy, 101. 
 what is a conspiracy, 101. 
 when becomes a legal wrong, 101. 
 conspiracy to break a contract, 101. 
 conspiracy to refuse employment, 103. 
 conspiracy not to work at certain places, 103. 
 right to be carried by common carriers, 103. 
 scope of carrier's business, 103. 
 carrier must carry impartially, 103. 
 persons may be refused for reason, 103. 
 rules regulating carriage, 103. 
 power of state legislature to regulate carriage, 104 
 power of congress, 104. 
 right to control property, 104 
 subject to duties to state, 104 
 state may preserve morality, 104 
 right to an education, 104 
 
 statutory provisions for education, 104 
 self-acting provisions, 104 
 
302 INDEX. 
 
 Beferences are to pages. 
 
 CIVIL AND POLITICAL RIGHTS (continued) — 
 
 right to an education, must be no discriminatioD, 104. 
 
 refusal of a teacher to instruct is actionable, 105. 
 
 reading of sacred books in schools, 105. 
 rights in the learned professions, 105. 
 
 legislatures may regulate practice of law or medicine, 105. 
 
 but may not interfere with choice of a religious teacher, 105. 
 
 disturbance of religious worship, 105. 
 religious liberty, 106. 
 
 disturbance of religious meetings, 106. 
 
 when expulsion of members of a congregation violates, 105. 
 equality of right, 106. 
 
 every person may appeal to the general laws, 106. 
 exceptional burdens, 108. 
 
 public burdens to be impartially distributed, 108. 
 
 exemption from unequal taxation a privilege of citizenship, 107. 
 
 liability of assessor for unequal assessment, 107. 
 searches, 107. 
 
 provisions of state and federal constitutions as to, 107. 
 
 as to opening author's letters, 107. 
 
 warrants to search, when allowed, 107. 
 formalities of issue, 108. 
 what goods may be seized under, 108. 
 political rights, invasion of, 108. 
 
 deprivation of the right to discuss public affairs, 108. 
 , right of suffrage, how may be violated, 108. 
 
 object of voting by ballot, 109. 
 ' what is an invasion of the right depends on circumstances, 109. 
 
 exclusion from oflGce, 109. 
 
 no natural right to hold oflBce, 109. 
 
 remedy against a usurper, 109. 
 military suboi'dination, 109. 
 
 right to be free from military control, 109. 
 
 military officers subject to the civil power, 109. 
 
 seizures of property by officere' trespasses, 110. 
 
 right of impressment, to whom belongs, 110. 
 
 action of a court-martial, when conclusive, 110. 
 
 the right to bear arms, 110. 
 
 carrying of concealed vveapons, 110. 
 
 CLERGYMEN (see Fraud) — 
 
 frauds by reason of confidence, 216. 
 
 CLERKS OF COURTS (see Officers)— 
 liability of to private suits, 153, 153. 
 
 COLORED PERSONS — 
 
 rights of in public conveyances, 103. 
 
INDEX. 303 
 
 Beferences are to pages. 
 
 COMMINGLING OF GOODS — 
 ■what it is, 17. 
 remedy for, 17, 18. 
 motive in, 17. 
 
 COMMON ■CARRIER (see Caeeiees op Peesons; Negligence) — 
 
 who is, 207. 
 
 to what extent may limit employment, 268. 
 
 other party must assent to rules, 268. 
 
 duty as to delivery of property, 268. 
 
 custom as to, 263. ' 
 
 transportation of live-stock by, 268. 
 
 when liability attaches, 268. 
 
 when liability ceases, 2G8. 
 
 when liability is that of warehouseman, 269. 
 
 when consignee may dema'nd goods from, 269. 
 
 who may demand goods from, 269. 
 COMMON LAW — 
 
 consists in what, 6. 
 
 growth of, 6. 
 
 influence of civil law in, 6, 
 
 advantage of such a system, 6. 
 
 as to family rights, 13. 
 
 as to distress of cattle damage feasant, 1& 
 
 as to distress of goods, 19. 
 COMPARATIVE NEGLIGENCE (see Negligence)— 
 
 doctrine of, 286. 
 
 recent modification of, 286. 
 
 COMPENSATORY REMEDIES (see Remedies). 
 
 CONFIDENTIAL COMMUNICATIONS — 
 when privileged, 71, 72. 
 to attorneys, 215, 216. 
 to physicians and clergymen, 216, 217. 
 
 CONFIDENTIAL RELATIONS (see Attorneys; Clergymen; Fraud; 
 Physicians) — 
 
 frauds in, 206 et seq. 
 
 definition of term, 206. 
 CONFUSION OF GOODS — 
 
 what it is, 17. 
 CONSPIRACY (see Corporations) — 
 
 to ruin reputation, 36. 
 
 damage the gist of the action, 86. 
 
 damages aggravated by the combination, 36. 
 
 to be actionable, must accomplish deprivation of a legal right, 30. 
 
 to induce violation of contract, not actionable, 87, 
 
 to prevent employment, 101, 103. 
 CONSTRUCTIVE FRAUDS (see Feacd)i 
 
30i INDEX. 
 
 Beference* are to paget. 
 CONTEMPTS — 
 
 jurisdiction to punish for, should be exercised with caution, 165. 
 
 power to punish for, inherent in legislature, 166. 
 
 power to punish for, necessary to a court, 166, 
 
 jurisdiction must exist, 166. 
 
 party must have opportunity to defend, 167. 
 
 punishment for, must be certain, 167. 
 
 CONTRACTORS (see Master) — 
 who are^ 234. 
 
 liability of, for injuries to servants, 334. 
 employer not responsible for injuries by, 224 
 
 CONTRACTS (see Conspikacy)- 
 
 breaches of contracts distinguished from torts, 35. 
 
 election of remedies, 35, 36. 
 
 rules of responsibility upon, how differ from those applied to torts, 37. 
 
 what required to make binding, 37. 
 
 conspiracy to induce breach of, 101. 
 
 rescinding for fraud, 304 
 
 CONTRIBUTIO J — 
 
 no, between wrong-doers, 43. 
 
 the rule founded on public policy, 43. 
 
 cases where indemnity may be bad, 43, 
 
 illustration in case of master and servant, 43. 
 
 and in case of ofScer serving process in civil case, 43. 
 may be, where act done in good faith, 44 
 application of rule to partnerships and corporations, 44 
 
 CONTRIBUTORY NEGLIGENCE (see Negligence; Master; Cabbiebs)— 
 master not liable to servant when latter guilty of, 230. 
 is a bar to action for causing death, 93. 
 applies in case of injury by animals, 139. 
 CONVERSION — 
 
 what constitutes, 177 et seq. 
 the action in form a fiction, 177. 
 when action lies, 177. 
 distinguished from trespass, 177. 
 the plaintiff, 177. 
 
 must show legal title, 177. 
 
 when possession sufficient, 178w 
 
 nature of possession, 178, 179. 
 
 goods held without right, 179, 
 
 wrongful possession, 179, 
 
 mortgaged chattels, 179, 181. 
 the property, 179. 
 nature of, 179. 
 
 paid note, 179. 
 
 shares of stock, 17% 
 
 trees, 179. 
 
 buildings, 179. 
 
INDEX. 305 
 
 Seferencea are to pages. 
 CONVERSION (continued) — 
 
 an act of wrongful dominion constitutes, 180. 
 
 act must have been intended, ISO. 
 acts of bailees amounting to, 180. 
 purchase from one having no authority to sell, 181. 
 demand and refusal, 181. 
 
 when necessary, 181, 182. 
 
 refusal open to explanation, 183. 
 by tenant in common, 183» 
 
 English rule, 183. 
 
 American rule, 183. 
 by bailees, 183. 
 extent of injury by, 183. 
 effect of judgment, 184 
 
 when title passes, 184. 
 
 COPYRIGHTS <see Incobpokeal Hereditaments). 
 
 CORPORATIONS (see Contribution) — 
 
 in seeking redress, represent stockholders, 4^ 
 
 not responsible for wrongs as individuals, 34. 
 
 not responsible outside of their powers, 34 
 
 responsibility of oflScers of, for torts, 34 
 
 powers of officers of, as affecting liability of corporation, 34 
 
 liability of, for assault by agents, 84 
 
 for libel by directors, 35. 
 
 for malicious prosecution, 33. 
 
 for false imprisonment, 35. 
 
 for conspiracy, 35. 
 
 for frauds in corporate business, 35. 
 
 for torts of officers, general rule, 35. 
 frauds upon, by officers, 810 et seq. 
 COUNSEL (see Attornsys). 
 
 COURT-MARTIAL — 
 
 authority add jJirisdiction of, 110. 
 COURTS (see Judicial Ofbtcers; Judicial Tribunals; Contempts) — 
 
 punishment of contempts by, 186. 
 
 jurisdiction essential to action of, 162. 
 
 CRIMES — 
 
 distinguished from torts, ^ 
 
 intent in, 23. 
 CROPS (see Geowino Crops)l 
 
 D. 
 
 DAMAGES (see CONSPIRACY; Intent; Motive) — 
 the chief legal remedy for redress of a wrong, 19. 
 referred to the proximate cause, 3fX 
 20 
 
306 INDEX. 
 
 Beferences are to pages. 
 DAMAGES (continued)— 
 
 presumed, ,where a distinct legal right is invaded, 20. 
 
 resulting from wrongful act and intervening act not wrongful, 21. 
 
 resulting from concurrent wrongful acts, 22. 
 
 exemplary, not allowed where no evil intent^ 69. 
 
 DAMNUM ABSQUE INJURIA, 22, 163, 239. 
 
 DAUGHTER — 
 
 seduction of, see Seduction. 
 
 DE FACTO OFFICERS — 
 
 liabilities of, 136. 
 DE MINIMIS NON CURAT LEX — 
 
 does not apply when a substantial right is invaded, 20L 
 DEAD BODIES — 
 
 burial of, see Burial Rights. 
 
 DEATH BY WRONGFUL ACT (see Loed Campbell's Act; Family 
 Rights) — 
 remedy for causing, 9. 
 DECEPTION (see Fraud). 
 
 DEFAMATION (see Slander; Libel) — 
 definition of, 58. 
 
 DEFENSE — 
 of self, 17. 
 
 member of family, 17. 
 
 property, 17. 
 DEFINITION— 
 
 of torts, public wrongs, 2. 
 
 civil liberty, 4. 
 
 political liberty, 5. 
 
 natural liberty, 3. 
 
 judicial legislation, 5. 
 
 common law, 6. 
 ' religious liberty, 10, 11. 
 
 crimes, 23. 
 
 slander, 58w 
 
 libel, 58. 
 
 defamation, 58. 
 
 malice, 67. 
 
 liberty of the press, 73. 
 
 words actionable per se, 59, 60. 
 
 civil rights, 99. * 
 
 waste, 123. 
 
 incorporeal rights, 131. 
 
 trade-marks, ■ 136b 
 
 party-wall, 142. 
 
 jurisdiction, 163. 
 
INDEX. 307 
 
 References are to pages. 
 DEFINITION (continued)— 
 of contempts, 165. 
 fixtures, 169. 
 fraud, 190. 
 
 constructive fraud, 190. 
 duress, 305. 
 undue influence, 190. 
 servant, 218. 
 fellow-servants, 23.3. 
 nuisance, 283. 
 negligence, 263. 
 common carrier, 267. 
 innkeeper,. 265. 
 bailments, 263. 
 guest, 366. 
 passenger, 270. 
 
 DEGREES OF NEGLIGENCE (see Nequgenck> 
 
 DEPUTY (see Sheriff) — 
 
 not liable for neglect of ofiScial duty, 38. 
 
 DISCRETIONARY DUTIES — 
 no action for neglect of, 144. 
 
 DISEASE — 
 
 imputation of contagious, see Slander. 
 
 DISEASED BEASTS — 
 as nuisance, 354. 
 
 DISOBEDIENCE OF ORDERS — 
 by servant, see Master. 
 
 DISTRESS — 
 
 of cattle damage feasant, 18. 
 of'goods, 19. 
 
 statutory provisions as to, 19. 
 
 DOGS — 
 
 barking of, as nuisance, 349. 
 killing of, when justifiable, 139. 
 defense of property by, 139, 130. 
 
 DRUNKENNESS — 
 
 no excuse for torts, 31. 
 may affect damages, 31. 
 
 DURESS — 
 
 as aflfecting liability for torts, 31. 
 a species of fraud, 305. 
 
 DUST, ETC.— 
 
 nuisance of, 250. 
 
308 DTDEX. 
 
 Beference* are to pages. 
 
 « 
 
 E. 
 
 EASEMENT (see Party Waiijs) — 
 
 in respect to occupation and use of town lot^ 139. 
 
 how may be enforced, 140. 
 right to pass and repass over land, 140. 
 
 how must the way be located, 140. 
 
 when located, how changed, 140. 
 
 not ways of necessity, 140. 
 
 the grant confers whal^ 141. 
 right to lay pipes, 140. 
 obstruction of, 141. 
 who may bring suit, 141. 
 abatement of nuisance to, 141. 
 EDUCATION — 
 
 right to obtain, 104 
 ELEMENTS OP A TORT (see Tokt). 
 
 EMBLEMENTS — 
 
 property in, 173. 
 EMPLOYEES (see CoNSPntACT). 
 EMPLOYMENT (see Conspibacy) — 
 
 right to engage in, 99. 
 
 state regulations of, 100. 
 EQUALITY OF CIVIL EIQHTS (see Crvn, Rights). 
 EXECUTIVE — 
 
 liability of, see Officeks. 
 EXEMPLARY DAMAGES (see Damages). 
 EXEMPTIONS (see Famo-y Rights). 
 
 P. 
 
 FALSE IMPRISONMENT (see Cokpoeations) — 
 in what it consists, 50. 
 
 illustrations, 50. 
 justification, 50. 
 
 on the ground of certain relations, 50, 51. 
 right of parent to restrain, 51. 
 right of guardian to restrain, 51. 
 right of teacher to restrain, 51. 
 restraint by carriers, 51. 
 under legal process, 5L 
 
 process may be void, when, 53. 
 when arrests may be made without process, 52. 
 illustrations, 53, 
 restraint of insane persons, 53. 
 
INDEX. 309 
 
 He/Fences are to pages. 
 
 FAMILY RELATION (see Famly Eiobts) — 
 right to enter into, 13. 
 
 FAMILY RIGHTS (see Master; Fraud) - 
 family as such has no rights, 14. 
 father entitled to custody and services of child, 18. 
 right of stat« to control parental rights, 13. 
 duty of parent to support child, la 
 duty of parent to protect "child, 13. 
 
 child has no remedy for non-performance of this duty, 13. 
 husband entitled to society and services of wife, 12, 
 duty of husband to support wife, 13. 
 injuries to, 77 et seq. 
 
 family not a legal entity at common law, 77. 
 husband, position of, 77. , 
 
 has no redress against wifei, 77. 
 has no right to chastise wife, 77. 
 redress for injury to wife's property, 78. 
 action by, for seducing wife, 78. 
 damages based on what, 78. 
 the extent of the injury, 78. 
 to what cases the action extends, 79. 
 action by, for injury to wife's person, 79. 
 based on loss of service, 79. 
 meaning of "service," 80. 
 the wife, action by, for injury to her person, 80. 
 what the damages embrace, 80. 
 under statutes, 80. 
 
 action against husband for interference with property ofj 80, 81. 
 action by, for alienating husband's affections, 81. 
 parent, action by, for injury to child, 81. 
 based upon loss of services, 81. 
 acts which may give rise to the action, 83. 
 what is an enticement, 83. 
 procuring marriage of minor daughter, 83. 
 seduction, 88. 
 
 action for, based on loss of services, 83. 
 damages given for what, 83. 
 when daughter not a member of-family, 83. 
 when daughter in service of another, 8<L 
 English rule, 84 
 American rule, 84 
 the form of action, 84 
 pregnancy not essential to the action, 85l 
 mother may sue for, when, 85. 
 the real ground of action, 85. 
 statutes, 85. 
 
 suit for, by the woman, 86. 
 connivance of the parent, 86. 
 
310 INDEX. 
 
 References are to pages, 
 
 FAMILY RIGHTS (continued)— 
 child, action by, for injury, 86. 
 
 no action against parent, 86. 
 
 no action against third person for injury to parent,'86, 
 
 rights of adopted child, 86. 
 guardian, when may sue for injuries to ward, 86. 
 
 when may sue for seduction of ward, 86. 
 loss of marriage, 86. 
 
 refusal to perform promise to marry, 86. 
 effect of seduction, 87. 
 
 action against third person for procuring, 87. 
 
 age of consent, 87. 
 
 rights of minor child, 87. 
 fraudulent marriage, 87. 
 
 action for procuring, by false representations, 87. 
 
 what amounts to a false affirmation that the party is single, SSi 
 
 impotency no ground of action, 88. 
 
 pregnancy no grouhd of action, 8S. 
 
 effect of fraudulent divorce, 88w 
 burial rights, 88. 
 
 property in apparel of the dead, 88. 
 
 who may dispose of the bodies of the dead, 88. 
 exemption laws, 89. 
 master, action by, for injury to servant, 89. 
 
 rests on same principles as action by, parent 89. 
 
 action by servant against third persons, 89. 
 intoxicating liquors, injuries from the use of, 89. 
 
 statutes giving right of action, 89. 
 
 Illinois statute, 90. 
 
 statutes to be strictly construed, 91. 
 
 what the damages will cover, 91. 
 
 when exemplary damages may be awarded; 91, 
 
 damages must be described, 93. 
 
 who may be sued, 93. 
 
 where death results, 92. 
 
 notice required under some statutes, 93. 
 death by wrongful act, action for, 93. 
 
 when action would lie at common law, 93t 
 
 Lord Campbell's Act, 93. 
 provisions of, 93. 
 
 statutory provisions in America, 93, 94 
 
 the remedy local, 94 
 
 action for death in another state having similar statutes, 94 
 various decisions, 94 
 
 the defendant, 95. 
 
 who may be sued, 95. 
 
 the plaintiff, 95. 
 
 who may sue, 95. 
 
 provisions in various states, 95. 
 
INDEX. 311 
 
 Seferences are to pages. 
 
 FAMILY RIGHTS (continued) — 
 
 death by wrongful act (continued) — 
 
 tlie plaintiff, distribution of money recovered, 98. 
 tite beneficiaries, who are, 96. 
 
 the wrongful act, 96. ' 
 
 must have been proximate cause of death, 96. 
 what constitutes, 96. 
 the damages, 97. 
 English rule, 97. 
 
 statutes generally fix minimum, 97. 
 confined to pecuniary losses, 97. 
 when exemplary, allowed, 97. 
 not given as a solatium, 98. 
 how to be estimated, 98. 
 
 extent of, to be governed by circumstances, 98. 
 FELLOW-SERVANTS (see Master) — 
 who are, 333, 333. 
 
 FENCES — 
 
 liability of railroad companies for not building, 376, 377. 
 statutes requiring building of, 376, 377. 
 
 FILTHY PERCOLATIONS (see Nuisance). 
 
 FIRES (see Nuisances). 
 
 FISHERIES (see Incorpokeal Eights). 
 
 FIXTURES (see Pisesonal Property; Settlements) — 
 what are, 169, 170. 
 when a part of realty, 169 et seq. ' i 
 
 the intent important, 169. 
 
 when intent to make a part of realty is presumed, 170. 
 
 manner of annexation unimportant, 170. 
 
 annexation by tenant, 170. 
 
 annexation by one iu possession, 170. 
 
 property that if removed would injure realty, 171. 
 
 annexation without authority, 171. 
 
 may be governed by agreement, 171. 
 
 agreement by landlord and tenant, 171. 
 removal of, 171. 
 
 by licensee^ 171. 
 
 when a tenant may remove, 17L 
 
 effect of renewal of lease, 173. 
 when removed are a part of personalty, 173. 
 FIRE-ARMS (see Nuisances) — 
 
 injuries in negligent use of, 346. 
 FOULING WATER-COURSES (see NuiSANCES)i 
 
 FRAUD — 
 
 actual or constructive, 190. 
 definition of each, 190. 
 illustrations of each, 190, 191. 
 
312 INDEX. 
 
 Beferencea are to pages. 
 FRAUD (continued) — 
 
 what must appear to make it actionable, 191. 
 burden of proof to establish, 191. 
 may be established by circumstantial evidence, 191. 
 what constitutes, 191. 
 
 mere silence does not, 191. 
 caveat emptor the rule in sales, 191. 
 unless artifices are employed, 193. 
 or delusions encouraged, 193. 
 estoppel to claim fraud, 192. 
 when silence fraudulent, 193. 
 as to insolvency, 193, 
 payment in worthless checks, 193. 
 
 selling goods for a purpose for which they are exempt, 193. 
 selling diseased meats, 193. 
 selling food unfit for cattle, 194. 
 selling diseased animals, 194 
 concealment of important facts from sureties^ 194. 
 matters of opinion, 195. 
 
 overestimating value, 19Si 
 overestimating prospective profits, 19% 
 as to opinions of experts, 19S. 
 as to boundaries of land, 196. 
 matters of law, 196. 
 fraudulent promises, 196. 
 when fraudulent, 196. 
 self -protection, 196. 
 
 ordinary prudence required, 196. 
 as to purchase of property at a distance, 197. 
 representations which disarm vigilance, 197. 
 as to signature to contracts, 197. 
 
 negotiable paper, 198. 
 question of negligence important, 198, 199. 
 representations as to title, 199. 
 
 may generally be relied on, 199. 
 representations, 199. . 
 
 who eiititled to rely an, 199. 
 
 not those to whom they are not made, 300. 
 any one may when made to the public^ SOOi 
 as to fraudulent corporate reports^ 300. 
 as to speculative stocks, 300. 
 misrepresentations must be material, 200. 
 inducing third person to break contract, 301. 
 knowledge of wrong-doer necessary, 301. 
 as to warranties, 203. 
 when they may be redressed, 2D3. 
 representations must have been acted on, 303. 
 waiver of, 203, 304. 
 rescinding contract foi-, 303. 
 
IHDEX. 313 
 
 Befereaces are to pades. 
 
 FRAUD (continued) — 
 
 indirect suppression of, 204. 
 
 when parties in pari delicto, 204. 
 duress a species of, 205. 
 as to extortion, 205. 
 in confidential relations, 20& 
 by husband and wife on each other, 206. 
 
 as to wife's property, 207. 
 by persons engaged to marry, 207. 
 
 as to seduction, 207. 
 
 as to dealing with property, 208. 
 by parent and child on each other, 208. 
 where illegal sexual relations exist, 209. 
 on persons of weak intellect, 209. 
 
 where intoxication exists, 210. 
 by corporate oflSoers on corporations. 210 et seq. 
 
 as to redress by individuals, 210. 
 
 illustrations of, 211 et seq. 
 by trustees, 213. 
 
 as to dealings in trust property, 214. 
 
 to whom rules relating to apply, 214. 
 between principal nnd agent, 215. 
 
 as to partners, 215. 
 between attorney and client, 215. 
 in other professional relations, 21C. 
 FRAUDS, STATUTE OF — 
 licenses, how affected by, 113. 
 
 G. 
 
 GAMES (see Assaults and Batteries). 
 GOOD FAITH — 
 
 when a protection for publishing false charges, 59, 63. 
 GOVERNMENT — 
 
 chief end of, attained when rights are clearly defined, 3L 
 
 torts by, see Torts. 
 GROWING CROPS (see Personal Property) — 
 
 property in, 173. 
 GUARDIAN AND WARD (see Family Rights) — 
 
 the relation of, usually of judicial creation, 14. 
 GUEST (see Innkeeper). 
 
 H. 
 
 HEREDITAMENTS (see Incorporeal Hereditabients). 
 HIGHWAY OFFICERS — 
 
 whether liable for private suits, 156. 
 
314: INDEX. 
 
 Beferences are to pages. 
 HOMESTEAD — 
 
 family rights in, 89. 
 HUNTING — 
 
 trespass by, see Real Property. 
 HUSBAND— 
 
 rights of, see Family Eights. 
 
 I. 
 
 ILLEGITIMATE CHILD — 
 
 rights of, 14 
 IMPARTIALITY (see Innkeepers; Common Carriers). 
 
 INCOMPETENT PERSONS (see Toets; Intent) — 
 liable for torts, 27, 28. 
 not liable where malice essential, 28, 
 
 INCORPOREAL HEREDITAMENTS — 
 not subject of trespass, 176. 
 
 INCORPOREAL RIGHTS — 
 what are, 131. 
 copyrights and patents, 131. 
 
 requirements to secure, 181. 
 inventions not patented, 132. 
 literary and artistic productions, 133. 
 
 to secure monopoly statute must be strictly complied with, 133. 
 
 publication is abandonment, 133. 
 
 what is publication, 133. 
 
 what is violation of a copyright, 133. 
 
 pi'ivate letters, 134 
 
 various classes of, 134 
 property in, 134 135. 
 autographs, 135. 
 trade-marks, 136. 
 good will of business, 138. 
 rights of common, 138. 
 easements, 138. 
 party walls, 142. 
 
 INDEPENDENT CONTRACTORS (see Master; Conteactoes). 
 
 INFANTS (see Torts) — 
 
 liable for torts, when, 27, 28, 29. 
 not excused by command of parent, 29. 
 not liable on contracts, 30. 
 
 not liable in action resting on a promise where would not be liable di- 
 rectly on the promise, 30. 
 bailments of, 30. 
 sales and purchases of, accomplished by fraud, 80. 
 
INDEX. 315 
 
 Seferences are to pages. 
 INFAOTB (continued) — 
 
 cannot obtain title to property on a repudiated contract, 31. 
 conversion of money by, waiver of tort, 81. 
 not liable for negligent torts of servant, 81. 
 
 INFRINGEMENT — 
 
 of rights in literary productions, 133. 
 of rights in trade-marks, 186. 
 
 INJURY TO WRONG-DOER (see Weong-doees). 
 INNKEEPER — 
 
 special obligations imposed on, S65. 
 
 what is an, SC5. 
 
 must furnish to all who come, 266. 
 
 may turn disordei-ly perspns away, 366. 
 
 is a bailee of guest's goods, 366. 
 
 when excused from losses, 366. 
 
 rule of liability, 266. 
 
 possession of thing bailed by, usually constructive^ 266. 
 
 relieving from liability by notice, 367. 
 at common Jaw, 267. 
 by statute, 367. 
 
 loss through fault of guest, 267. 
 
 when liability ends, 367. 
 
 INSPECTORS OF PROVISIONS — 
 liability to private suits, 151. 
 
 INTENT (see Assault and Batteries; Crimes; Torts; Motivi|:)— 
 
 the chief ingredient in crimes, 38. 
 
 gross recklessness sometimes equivalent to evil, 23. , 
 
 but a ground for damages where wroiig-doer is wanting in capacity, 37. 
 INTOXICATING LIQUORS (see Family Rights) — 
 
 action by injuries caused by sale of, 89. 
 
 INVENTIONS — 
 
 patents for, see Patents. 
 INVITATION — 
 
 into dangerous places, 353. 
 
 what constitutes an, into premises, 253. 
 
 J. 
 
 JOINT LIABILITY- 
 wrongs intended, 38. 
 
 each liable to whole extent, 38. 
 
 any one may be proceeded against, 39. 
 
 responsibility for, distinguished from that of joint conti-aotors, 39. 
 
 sheriif liable with deputy, 39. 
 
 election to proceed against one not a release of others, 39. 
 
 nor is recovery of judgment, 39. 
 
316 INDEX^ 
 
 Beferencea are to pages, 
 
 J<MNT LIABILITY (continued) — 
 
 wrongs intended, satisfaction of judgment is a bar, 39. 
 may be several judgments in several suits, 40. 
 costs in all suits, 40. 
 
 remedies as to wrongful taking of property, 40. 
 wrongs not intended, 40. 
 
 usually a failure to perform duty arising from contract, 40. 
 all blamable for, not liable, 40. 
 illustration in case of carrier, 40, 41. 
 both carrier and servant may be liable, 41, 43. 
 general rule of official responsibility, 41. 
 JOINT WRONGS (see Joint Liabiutt ; Ratification) — 
 
 what makes one a participant in a wrong, 37. 
 JODGMENT — 
 
 effect of, in trover, 184. 
 
 JUDICIAL LEGISLATION — 
 ' explanation of the term, 5. 
 
 JUDICIAL OFFICERS (see Juiosdiction; Contempts) — 
 not liable to private suits, 157 et seq. 
 reasons for the rule, 157-160. 
 rule applies to judicial officers of all grades, 160. 
 
 and in respect to process as well as judgment, 160. 
 
 it applies to military and naval officers, 160. 
 
 to grand and petit jurors, 160. 
 
 to assessors, 160. 
 
 to commissioners for appraising damages, 160. 
 
 to highway officers, 160. 
 
 to boards of claims, 161. 
 inferior officers may be liable for malicious action, 161. 
 liability of, having charge of elections, 161, 163: 
 necessity of jurisdiction for protection, 162, 163. 
 officer cannot act where interested, 163, 164. 
 punishment of contempts by, 164-168. 
 
 JUDICIAL TRIBUNALS (see Courts) — 
 chiefly concerned with redress of rights, 1. 
 power to punish for contempt inherent in, 166. 
 
 JURISDICTION (see Contempt) — 
 
 necessity for, in action of judicial officer, 163. 
 
 what is, 163. 
 
 inferior courts must show, 163. 
 
 proof of, sometimes rests in parol, 164 
 
 errors in respect to, 164 
 
 inferior courts not protected in. 164 
 otherwise in the case of superior courts, 164 
 
 none, where judge is interested, 164 
 
 to punish for contempts, 165. 
 
INDEX. 317 
 
 References are to pctges. 
 
 L. 
 
 LANDLORD — 
 
 trespass by, 190. 
 LATERAL SUPPORT — 
 
 right to, extent of, 346. 
 
 removal of, 346. 
 
 whether right to, can be acquired by prescription, 347, 
 EngHsh rule, 247. 
 American rule, 247. 
 LEGAL PRESUMPTIONS — 
 
 in action for defamation, 10. 
 
 LETTERS — 
 
 property in private^ 134 
 LIABILITY (see Motive; Intent). 
 LIBEL— 
 
 definition of, 53. 
 distinguished from slander, 64 
 publications actionable per se, 64 
 
 what embraced in, 64 
 publication, see Pobmcation. 
 truth as a defense, 66. 
 
 must be pleaded specially, 66. 
 
 honest belief not sufficient, 66. 
 
 words to receive an innocent consti'uction, 66. 
 
 must be proved as laid, 67. 
 malice, see MALica 
 privilege, see PRivitKCrE., 
 reputation, not privileged, 74 
 
 LIBERTY (see CrviL Liberty ; Natural Liberty)^ 
 
 LIBERTY OF THE PRESS — 
 
 preserved by the constitution, 73 
 what implies, 73. 
 purpose of, 73. 
 
 judicial trials, etc., may be reported, 73. 
 to whom the privilege extends, 74 
 does not extend to the publication of news, 74 
 LICENSE (see Real Pkopekty)— 
 implied. 111. 
 
 invitation limited by purpose. 111. 
 
 the case of persons not sai juris, 113. 
 express, 113. 
 
 not an interest in lands, 113. 
 
 may be given on condition, 113. 
 
 is personal as between the parties, 113. 
 
 revocation of, 11^ 
 
318 INDEX. 
 
 "^ References are to pages. 
 
 LICENSE (continued)— , 
 
 express, when may be coupled with an interest, 113. 
 
 may be revoked notwithstanding improvements, 113L 
 
 when must be in writing, 113. 
 
 application of doctrine of estoppel, 114 
 
 revocation of, to erect buildings, 114 
 
 as to the revocation of license to plow lands, 114. 
 by the law to enter on private grounds, 115. 
 
 to extinguish fires, 115. 
 
 when a highway is out of repair, 115. 
 
 to make surveys for railroads, etc., 115. 
 
 to serve process, 115. 
 
 to abate a nuisance, 116. 
 
 abuse of, makes one a trespasser ab initio, 116. 
 LIFE (see Eight to Life) — 
 
 the right to punish for taking is in the sovereignty, 9. 
 
 private injury from loss of, 9. 
 
 at common law no private action for loss of, 9, 
 
 literaBy productions— 
 
 rights in, see Incoeporeal Eights. 
 
 livery-stable — 
 
 nuisance, 249, 250, 251. 
 LOCAL ACTIONS (see Actions). 
 LOCALITY OF WRONGS (see Actions). 
 
 LORD CAMPBELL'S ACT (see Death from Wrongful Act; Faidlt 
 Eights) — 
 gave private action for death from wrongful act, 9. 
 LUGGAGE (see Baggage; Innkeepers; Common Carriers). 
 
 M. 
 
 MACHINEEY — 
 
 jar of, see Nuisance. 
 
 fires from, see Nuisanck 
 
 injuries from dangerous, see Master. 
 MAGNA CHAETA — 
 
 a guaranty of ancient principles, 5. 
 
 MALICE (see Incompetent Persons; Slandbsr; Libel) — 
 in slander and libel, 67. 
 not actual ill will, 67. 
 sometimes essential, 67. 
 
 MALICIOUS PEOSECUTION (see ATTORNEYS; Corpoeatiohs) — 
 when action will lie for, 53, 54. 
 probable cause, 54. 
 
 mixed question of law and fact, 54, 
 
 mere belief not sufficient, 54 
 
INDEX. 319 
 
 Beferenees are to pages. 
 
 MALICIOUS PROSECUTION (continued)— 
 probable cause, test of, 54. 
 
 when to be applied, 54. 
 advice of counsel, 54. 
 
 a material fact, 54 
 
 adviser cannot be a layman, 55. 
 want of probable cause will not be presumed, 55. 
 
 how it can be shown, 55. 
 malice, 55; 
 
 burden of showing upon plaintiff, 55. 
 
 illustrations, 55. 
 the end of the proceeding, 53. 
 
 by acquittal, 55. 
 as to civil suits, 56. 
 abuse' of legal process, S6. 
 
 when will support an action, 56, 57. 
 officer serving his own process, 57. 
 . privilege from arrest, 57. 
 
 MARRIAGE — 
 
 frauds relating to, see Fraud. 
 
 right to enter into, see Family Rights 
 
 MARRIED WOMEN (see Family Rights ; Torts)— 
 
 breach of contract by, cannot be redressed indirectly as a tortj 32. 
 liability of, modified by statutes, 33.^ 
 
 MARRIED WOMEN'S PROPERTY ACTS — 
 make them responsible alone for torts, 33. 
 
 MASTER (see Sekvamt) — 
 
 liability of. for wrongs to servant, 218 et seq. 
 liability of, for wrongs by servant, 318 et seq. 
 meaning of term, 218. 
 who is a servant, 218. 
 
 liability of, to third persons for servant's wrongs, 219. 
 for intentional acts, 319. 
 test of responsibility, 220. 
 where servant exceeds authority, 220. 
 for unintentional acts, 231. 
 
 duty to others in management of business, 221. 
 meaning of " business," 221. 
 disobedience of orders immaterial, 221. 
 liability of, to servants, 221. 
 
 generally not liable for injury done by another servant^ 221. 
 
 reasons for the rule, 231. 
 who are fellow-servants, 223, 233. 
 as to independent contractor, 233. 
 not servants, 234. 
 who are, 324 
 
320 DTDEX. 
 
 Beferences are to pages. 
 MASTER (continued) — 
 
 liability of, respoosible to servants for his own negligence, 324 
 when he sends them into unknown dangers, 235. 
 not responsible where risks are apparent, 235. 
 when he exposes inexperienced persons to danger, 236. 
 when he sends servants into dangerous places, 327. 
 in not providing suitable machinery, etc., 227. 
 in not employing suitable servants, 228. 
 in failing to remove known perils, 238. 
 
 where his own negligence concurs with that of a servant, 229. 
 when the hazard comes from another branch of business, 229. 
 when his superintendence is delegated, 329. 
 as to corporations, 330. 
 not liable when the injured servant is also negligent, 230. 
 liable for personal fault, 281. 
 
 MASTER AND APPRENTICE (see Master) — 
 
 a relation of contract, 14. 
 MASTER AND SERVANT (see Joint Liability; Conteibution; Mas- 
 ter) — 
 
 the relation of, a relation of contract, 14. 
 
 infant not liable for negligent torts of servant, 31. 
 
 MAXIMS — 
 
 ubijxis iM remedium, 6, 7. 
 
 de minimis non curat lex, 20. 
 
 the law refers the injury to the immediate and not to the remote cause, 30. 
 
 damnum absque injuria, 38, 163, 339. 
 
 respondeat superior, 31. 
 
 no man can take advantage of his own wrong, 43^ 
 
 ca/oeat emptor, 191, 
 
 quifaeitper alium, faait per se, 319. 
 MENTAL DISQUIETUDE (see Nuisance) — 
 
 no action for causing, 351. 
 
 MOBS — 
 
 each individual liable for torts of associates, 33, 34 
 destruction of property by, who liable, 359. 
 
 MOTIVE — 
 
 not generally important in torts, 392w 
 
 in case of damage by governmental action, 393. 
 
 legislation cannot be assailed in courts, 393. 
 bad motive in itself no tort, 393. 
 case of shutting o9 light and air, 393. 
 
 English rule, 393. 
 
 American rule, 393. 
 other illustrations, 393. 
 
 when an ingredient in torts, 393. 
 
 in certain cases of slander and libel, 393. 
 bad, imposes duty of unusual care, 293. 
 importance of, in estimating damages, 394. 
 
INDEX. 821 
 
 )i 
 
 Refereruxs ore to pages. 
 
 HUNICIPAL CORPORATIONS (see MoBS; Officers) - 
 pliable for negligent construction of drains, eta, 23a 
 
 nuisances by, in use of watei--courses, 243L 
 
 nuisances by, 359. 
 liability for defects in ways, 259. 
 
 N. 
 
 "ATURAL LIBERTY— 
 
 does not exist in the strict sense, B. 
 
 NEGLIGENCE (see Bailments; Common Camjiees; Contribctoet Neg- 
 ligence; Innkeepers) — 
 does not necessarily involve a wrong intent, 3. 
 in infant, depends on the circumstances, 29. 
 responsibility of master for negligence of servant, 219. 
 
 negligence of himself, 224, 
 what is, 26a 
 
 a relative term, 263. 
 degrees of, 26a 
 
 principles governing redress for, 279 et seq. 
 duty must first be shown, 279. 
 must be duty to person damnified, 279. 
 failure in performance must appear, 280. 
 presi^mptions of negligence, when arise, 280. 
 
 in case of railway companies, 280. 
 where injury is to passenger, 280. 
 where injured party is not a passenger, 281. 
 
 the general rule, 282. 
 burden of proof to show, 282. 
 whether is a question of law, 282. 
 
 in general cannot be, 283, 
 
 statement of rule, 28a 
 
 consideration of contributory negligence, 3Sa 
 contributory negligence, 284 
 
 will bar relief, 284 
 ' reason of rule, 284 
 
 burden of proof, 284 
 
 co-operating with recklessness, 285. 
 
 genial rule as to, 285. 
 
 doctrine of comparative negligence, 286. 
 
 must be proximate to the injury, 286. 
 
 what is, 286. 
 
 of infants, imbeciles, etc., 287. 
 
 whether attributable to guardian, 288. 
 
 subsequent to injury does not bar relief, 283. 
 of third parties, when imputable to party injured, 8881 
 
 English rule, 389. 
 
 American rule, 230. 
 21 
 
322 INDEX. 
 
 Beferences are to pages. 
 
 NEGLIGENCE (continued) — 
 
 contracts against liability for, whether lawful, 289. 
 of carriei-s, 289. 
 of telegraph companies, 390. 
 in other caaes, 291. 
 
 NEWSPAPERS — 
 
 liabUity of, for libel, 59, 73. 
 
 NO MAN CAN TAKE ADVANTAGE OF HIS OWN WRONG, 43. 
 
 NO RIGHT WITHOUT A REMEDY (see Ubi Jus Ibi REa4EDiUM)k 6. 
 meaning of the phrase, 7. 
 
 NOISES, OFFENSIVE (see Nuisance)— 
 nuisance of, 249. 
 
 NOTARY PUBLIC (see Officers)— 
 liability of, to private suits, 153. 
 
 NUISANCE — 
 
 party may abate, if he is prejudiced, 16. 
 public peace must not be disturbed, 16. 
 notice before abatement, 16. 
 
 not always necessary, 16. 
 destruction of property to abate, 17. 
 
 NUISANCES — 
 
 definition of, 233. 
 attempt to classify futile, 233. 
 annoyances without fault are not, 333. 
 nuisances which injure the realty, 233. 
 filthy percolations, 233. 
 
 duty to keep, from neighbor, 333. 
 
 accident will excuse, 233. 
 percolating waters, 233. 
 
 throwing waters from roof, 233. 
 
 gathering water in reservoirs, 233. 
 
 damming up stream, 334. 
 deposits upon land, 334. 
 
 putting rubbish in flowing water, 334. 
 
 what is an occupation of land, 3-34 
 leakage from water-pipes, 334. 
 injuries by bursting reservoirs, 335. 
 
 the English rule, 283. 
 
 the American rule, 235, 236. 
 falling waters and snows, 336. 
 
 as to construction of eve-trougbs, 336. 
 drawing off surface water, 236, 
 
 way in which injures, 336, 
 
 drainage into water-course, 837. 
 drawing away subterranean waters, 239. 
 
INDEX. 323 
 
 References are to pages. 
 
 NUISANCES (continued) — 
 
 nuisances which injure the realty (continued) — 
 
 nuisances in use of water-courses, 340. 
 rights of adjacent proprietors, 240. 
 
 diversion of water, 241. 
 
 reasonable use of water, 341. 
 detention of water. 343. . 
 diminution of water, 343. 
 
 flooding lands, 343. 
 
 why actionable, 242. 
 
 fouling water of streams, 243. 
 
 what may be reasonably done, 244. 
 negligent fires, 244. 
 
 for what purposes fire may be used, 344 
 
 when fires are negligent, 344. 
 
 burden of proof as to, 244. 
 
 fires communicated by machinery, 245. 
 injuries by fire-arras and explosives, 246. 
 
 as to children, 246. - 
 
 as to carriers, 246. 
 removing lateral support, 246 
 subjacent support, 247. 
 causing personal disoomfort, 248. 
 
 submission to what is necessary in trade, 348. 
 
 trifling inconveniences must be borne, 349. 
 ofl'ensive noises, 349. 
 
 barking of dogs, 349. 
 
 noises of billiard-rooms, 349. 
 
 noises of livery-stables, 349. 
 jar of machinery, 350. 
 dust, smoke, eta, 350. 
 offensive odors, 250. 
 
 reasonable management of business, 350. 
 
 as to livery-stables, breweries, etc., 251. 
 mental disquietude, 251. 
 dangerous places, 252. 
 
 duty as to, pertains to occupancy, 353, 
 which threaten calamity, 253. 
 diseased beasts, 254. 
 who responsible for, 254 
 
 the one in control, 254 
 as to landlord and tenant, 254 
 
 the one erecting a, is responsible for its continuance, 355. 
 
 so is the possessor, 355. 
 
 as to an agent, 235. 
 who may complain of, 355. 
 
 the party who suffers, 355. 
 
 lapse of time confers no right against state, 356, 
 
824 rsvEX. 
 
 Beferences are to page*. 
 NUISANCES (continued) — 
 
 private injury from public, 256. 
 
 what must be shown, 256. 
 
 state cannot take away rights, 357. 
 
 objects in highway, 257. 
 
 steel railways, eta, 257. 
 special injury, what is, 258. 
 continuity of wrong, 258. 
 by municipal corporations, 259. 
 ' chargeable with like obligations as other owners of properly, 259. 
 
 for what wrongs responsible, 259, 260. , 
 
 duties as to public ways, 260. 
 
 defects in sidewalks, 260. 
 
 liability of individuals for defects in streets, 261. 
 
 o. 
 
 OCCUPANT — 
 
 liable for continuing nuisance, 255. 
 
 ODORS, OFFENSIVE — 
 
 nuisance of, 250. 
 OFFICERS, (see Judicial Officebs)— 
 liability of, under void writ, 37. 
 liability of, for excess under valid writ, 38. 
 are legislative, judicial and exefcutive, 144 
 ministerial, 144 
 ministerial action by legislative^ 145. 
 
 by judicial, 145. 
 discretionary action of, 143. 
 
 legislative and executive officers not liable to private suits, 145i 
 rule of responsibility of, 146. 
 
 not liable, if duty is to public, 146. 
 liable, if duty is to individual, 146. 
 not liable when action is discretionary, 146, 
 not liable when duty is judicial, 147. 
 liability of policeman, 147. 
 
 highway commissioner, 147, 148. 
 quarantine officers, 148, 
 recorders of deeds, 148. 
 inspectors of provisions, 151. 
 postmasters, 152. 
 clerks of courts, etc., 152. 
 sheriffs, 153. 
 deputies, 154 
 notaries public, 155. 
 taxing officers, 156. 
 
 where means to perform duty are lacking^ 15& 
 highway officers/' 157. 
 defado officers, 156. 
 
INDEX. 325 
 
 Seferences are to page$. 
 
 OFFICERS, MINISTERIAL (see Officers). 
 OFFICERS OF CORPORATIONS (see COKPOEATIOSS). 
 OFFICES (see Officers)— j 
 
 are ti-usts, 144 
 
 classification of, 144 
 
 de facto incumbency of, 156. 
 OFFICIAL COMMUNICATIONS — 
 
 privilege respecting, 70. 
 OFFICIAL DUTIES— 
 
 neglect of, see Officees. 
 OUTLAWRY— 
 
 not now recognized, 8. 
 OVERHANGING BUILDINGS — 
 
 are nuisances, 233, 
 
 OVERHANGING TREES — 
 are nuisances, 233L 
 
 P. 
 
 PARENT AND CHILD — 
 
 frauds in relation, 208, 309. 
 PARENT, DUTY OF (see Family Rights). 
 PARTIES TO SUIT — 
 
 liability of, for acts under void writ 37. 
 
 ratification of wrongful act of officer, 38. 
 PARTNERSHIP (see Cootribdtion) — 
 
 each partner liable for torts of other in line of business, 83. 
 but not otherwise, 33. 
 PARTY WALLS — 
 
 what are, 143. 
 
 right to, may be acquired by prescription, 143. 
 
 requirement of deed, 143, 
 
 estoppel, as applied to, 143. 
 
 right to repair, 143. 
 
 how the easement is at an end, 143. 
 
 how rights in, pass, 14.S. 
 PASSENGER (see Carkiees of Persons)— 
 
 when one becomes a, 370. 
 PERCOLATIONS — 
 
 of filth, see Nuisances. 
 PERSONAL IMMUNITY (see Rights; Threats; AesaxtuH). 
 
 PERSONAL PROPERTY (see Actions ; TrOver; Fixtures; Settlement; 
 Sidewalks; Process) — 
 reason for the designation, 169. 
 what constitutes, 169, 170. 
 
326 INDEX. 
 
 Beferencea are to pages. 
 
 PERSONAL PROPERTY (continued) — 
 fixtures, 169-172. 
 
 settlements, 173. t 
 
 sidewalks, 173. 
 growing crops, 173. 
 wild animals, 173. 
 wrongs to, how accomplished, 174 
 trespass to, consists in what, 174. 
 indirect injuries to, 176. 
 trover, 177. 
 
 taking under process, 117, 
 locality of wrongs, 177. 
 
 PERSONAL RIGHTS (see Rights) — 
 include — 
 
 right to life, 8. 
 
 right to immunity from assaults, etc., 8. 
 
 right to reparation, 8. 
 
 right to control one's actions, 8. 
 
 PHYSICIANS — 
 
 frauds by reason of confidence, 816. 
 
 PLATFORMS — 
 
 responsibility of carrier as to, 370. 
 
 POLITICAL LIBERTY— 
 
 distinguished from civil liberty, 5. 
 defined, 5. 
 
 POLITICAL RIGHTS — 
 
 defined by the sovereignty, 13. 
 right of petition, 13. 
 
 POSSESSION — 
 
 remedy for wrongful, 18. 
 
 PREPARATION FOR TORT — 
 gives no right of action, 30. 
 
 PRESUMPTIONS (see Legal Peesumptions) — 
 every one will obey the law, 16. 
 
 that damage follows where a distinct legal right is invaded, 30. 
 as to negligence in use of dangerous agencies, 380. 
 
 PREVENTIVE REMEDIES (see Remedies). 
 
 PRIVATE SUIT — 
 
 and public, prosecution may be carried on simultaneously, 24 
 
 PRIVATE VENGEANCE (see Right to Life). 
 
 PRIVATE WRONGS (see Nuisance) — 
 not merged in public wrongs, 9. 
 
INDEX. 327 
 
 References are to pages. 
 
 PRIVILEGE — 
 explained, 68. 
 absolute privilege, 68. 
 
 witnesses, 68. 
 ' parties, jurors, eta, 68, 
 
 the words must be pertinent, 68. 
 
 pleadings, etc., 69. 
 
 legislators, 69. 
 
 executive and governors, 69, 70. 
 conditional privilege, 70. 
 
 what are cases of, 70. 
 
 petitions, 70. 
 
 official reports, etc, 70. 
 
 communications jn confidential relations, 71. 
 illustrations, 71, 73. 
 liberty o£ the press, which see. 
 
 PRIZE FIGHT — 
 
 injury to one engaged in, see WEONa-DOEKS. 
 
 PROBABLE CAUSE (see Malicious Prosecution). 
 
 PROCESS — 
 
 justification under, 184 ^ 
 
 when not necessary to protection, 184. 
 must be fair on its face, 184. 
 
 meaning of term, 184. 
 
 extent of, term "process," 184. 
 departure from command- of, 183. 
 abuse of, 185, 
 
 extent of protection under, 185. 
 what process fair on its face, 185, 186.. 
 
 and what not, 186. 
 knowledge of officer of facts back of process, 186. 
 liability of magistrate under void, 187. 
 liability of party, 187. 
 of execution, protection of purchaser under, 187. 
 
 PROFESSIONAL SERVICES (see Attorneys) — 
 degree of care required in renderiiig, 273. 
 
 PROPERTY— 
 
 right to dispose of, limited by state, 14. 
 
 PROXIMATE CAUSE (see MAXIMS; Damages)i 
 
 PUBLIC WRONGS — 
 crimes, 4. 
 
 may be individual wrong also, 4 
 do not merge private wrongs, 9. . 
 private redress for, 24. 
 the test as to, 24. 
 
328 INDEX. 
 
 Seferencea are to pages, 
 
 PUBLICATION (see Slander; Libel)— 
 what is a publication, 58. 
 must be made by whom, 58i 
 repetition by party accused not, 59; 
 implies volition and wrongful intent, 59l 
 by newspaper, 59. 
 
 Q. 
 
 QUARANTINE OFFICERS — 
 not liable to private suits, 148. 
 qui fadt per afium, faeit per se, 319i 
 
 B. 
 
 RAILROAD COMPANIES — 
 duty of, to fence track, 376. 
 
 at common law, 376. 
 
 under statutes, 377. 
 liability for cattle injured, 377. , 
 liable for neglect to ring bell or whistle, 377. 
 liable for running trains at unlawful speed, 277. 
 RATIFICATION OF WRONG- 
 one may be liable by. 37. 
 
 must be with knowledge of facts. 37. 
 easier to establish, where wrong-doer agent of the party, 37. 
 REAL PROPERTY (see License; Boundaries; Waste) — 
 invasion of rights in. 111. / 
 
 use of the term. 111. 
 nature of ownership of. 111. 
 license to go upon. 111. 
 boundaries of land, 116. 
 possession of, 118. 
 
 actual possession, 118. 
 
 constructive possession, 119. 
 
 not to be taken forcibly, 119. 
 
 is rightful or wrongful, 130. 
 
 iijjury to, may support two a,ctions, 130. 
 
 entry of landlord, when a trespass, 130t 
 
 by tenants in common, 121. 
 trespasses in hunting. 131. 
 trespasses in fishing, 121. 
 
 regulation of right to fish by state, 122L 
 
 fishing in tide-waters, 133. 
 trespasses by inanimate objects, VZS. 
 waste upon, 123. 
 
 RECAPTION — 
 right of, 17. 
 
INDEX. 329 
 
 Beferenees are to page>t. 
 RECORDERS OF DEEDS — 
 
 liability of, to private suits. 148. 
 
 for refusing to record conveyances, 148. 
 
 for errors in recording. 148-150. 
 
 for erroneous certificate, 151. 
 
 for recording papers not entitled to record, 151. 
 
 REDRESS BY PARTY'S OWN ACT (see Nuisance, Abatement of). 
 
 REGULATION — 
 
 of employments, see Employment. 
 
 of bu.siness by carriers, see Common Carriers. 
 
 of business by innkeepers, see Innkeepers. 
 
 of business by telegraph companies, see Teleqraph Companies, 
 RELATION, SUITS BY ^ee Torts). 
 RELIGIOUS LIBERTY (see Civil Rights) — 
 
 subject to regulation by law, tl. 
 
 does not confer right to indulge in immoral practices, 11. 
 
 a part of one's civil rights, lOS. 
 
 in schools, 105. 
 REMEDY — 
 
 no right without a, 6. 
 
 classification of remedies, 7. 
 
 compensatory, 7. 
 ' preventive, 7. 
 
 the thought of compensation underlies legal, 7. 
 
 in case of trespass to personalty, 176. 
 
 given by statute, when excludes the common law, 374 
 
 when statute imposes a new duty, 275. 
 
 when statute imposes a new duty to the public, 275. 
 REMOTE CAUSE (see Proximate Cause). 
 REPETITION OF SLANDER — 
 
 no privilege in, 74. 
 REPUTATION (see Defamation) — 
 
 right to, 9. 
 
 action for false charge causing damage to, 9. 
 
 presumption as to, 10. 
 .RESPONDEAT SUPERIOR (see Master and Servant), 
 
 RESPONSIBILITY — 
 
 for conduct advised, 19. 
 
 of husband for conduct of wife, 19. 
 
 of master for agents, 19. 
 
 rules of, upon contracts not those applied in torts, 27. 
 
 criminal, differs from responsibility for torts, 37. 
 
 RETRACTION — 
 
 of defamatory publication, effect of, 75. 
 
 EIGIIT TO LIFE (see Rights). 
 
330 INDEX. 
 
 References are to pages. 
 
 EIGHTS (see Taking Away Eights; Statutory Eights; Peesonal 
 Eights; Odtlawey) — 
 protection of, the chief business of judicial tribunals, 1. 
 occasions for redress of, increase with the advance of civilization, 1. 
 to define a chief business of government, 3. 
 grovirth of, 5. 
 
 the right of life the highest right, 8. 
 now no privilege of private vengeance, 8. 
 general classification of, 8. 
 legal, what are, 8. 
 every government to protect rights whose object is — 
 
 1. Security in person, 8. 
 
 2. Security in property, 8. 
 
 3. Security in family relations, 8. 
 
 one injured while engaged in an illegal act waives right to redress, 15. 
 
 s. 
 
 SEAECHES (see CScvn. and I?outical Eights). 
 
 SECUEITY (see Eights)— 
 
 in person, 8. 
 
 in property, 8. 
 
 in family relations, 8. 
 SEDUCTION (see Fraud; Family Eights)— 
 
 under promise of marriage, a fraud, 207. 
 
 basis of damages for, 207. 
 
 discussion as to participation of woman, 208. 
 SELF-DEFENSE (see Defense) — 
 
 a legal right, 17. 
 
 SELF-PEOTECTION (see Assaults aiw Batteeibs). 
 SEEVANT (see Master) — 
 
 who is, 210. 
 SHEEIFF — 
 
 liable for deputy's misconduct, 38. 
 liable to individuals as well as to public, 153. 
 duty to keep property carefully, 153. 
 liable for refusal to serve process, 153. 
 an escape, 153. 
 not returning process, 153. 
 false return, 153. 
 disregarding exemptions, 153. 
 abuse of process, 154 
 mistakes in seizures, 154 
 disregarding liens, 154 
 action of deputy, 154 
 when not, 155. 
 cannot purchase at his own sale, 154 
 
INDEX. 331 
 
 References are to pages. 
 
 SIDEWALKS (see Personal Propeett)— 
 
 property in, 172. 
 
 defects in, who liable for, 260. 
 SILENCE^ 
 
 when fraudulent, see Fraud. 
 
 SKILLED WORKMEN — 
 
 care required of, see Workmen. 
 
 SLANDER (see Publication)— 
 definition of, 59. 
 words actionable per se, 59. 
 what are, 60. 
 
 words imputing an indictable offense, 60. 
 offense must be indictable, 61. 
 
 illustrations, 61. 
 charge to be taken entire, 61. 
 
 words must be understood as having a slanderous meaning, 61. 
 the injury is in the disgrace, 61. 
 words imputing contagious diseases, 63. 
 
 limited to charges of loathsome diseases, 63. 
 must charge that disease now exists, 63. 
 words damaging as respects office or profession, 63. 
 
 must be clearly in respect to office, eta, 63. 
 words prejudicial to a party in his business, 63. 
 illustrations, 63. 
 
 rules applicable to all grades of business, 63. 
 words not actionable per se, 64 
 what are, 64 
 
 special damages to be shown, 64 
 distinguished from libel, 64 
 malice in, see Malice. 
 truth, when is a defense, 66. 
 
 words to receive an innocent construction, 66. 
 must be proved as laid, 67. 
 privilege, see Privilege; Liberty of the Press. 
 repetition, 74 
 
 no privilege in, 74 
 slander of property, 75. 
 slander of title, 76. 
 SLANDER AND LIBEL (see Slander; Libel; Defamation) — 
 
 the wrongs of, 58 et seq. 
 SPRING-GDNS (see Assaults and Batteries). 
 STATUTES FOR FENCING RAILROADS (see Fences). 
 
 STATUTORY DUTIES — 
 
 when action will lie for breach of, 274 
 
 STATUTORY RIGHTS— 
 
 may be taken away by statute, 15. 
 
332 INDEX. 
 
 Beferences are to page*. 
 
 SUBJACENT SUPPORT (see Noisances) — 
 right to, 347. 
 
 usually arise from covenants, 347. 
 
 SUFFRAGE (see Voting). 
 
 SUNDAY TRAVEL — 
 
 injuries sustained in, see Weonq-doebs ; Chakity and Necessity. 
 
 T. 
 
 TAKING AWAY RIGHTS — 
 
 by an act of sovereignty, 15. 
 as punishment, 15. 
 TELEGRAPH COMPANIES — 
 
 to some extent common carriers, 372L 
 
 must be impartial, 272. 
 
 responsible for negligence, 272. 
 
 are not insurers, 27^ 
 
 may make reasonable rules, 272. 
 what are such, 272. 
 
 must be brought to notice of sender, 272. 
 
 whether can contract against liability for negligence, 29(X 
 TENANTS IN COMMON (see Convebsion) — 
 
 conversion by, 184. 
 
 possession of one possession of all, 121. 
 
 injury to possession of one injures all, 12L 
 
 THREATS (see Assault) — 
 
 preventive remedies in case of, 9. 
 TORTS (see Corporations ; Infants ; Intent ; Married Women ; Master ; 
 Motive; Preparation fob Torts; Wrongs) — 
 defined, 2. 
 
 distinguished from mere breaches of contract, 2. 
 elements of, 20. 
 
 wrongful act, 20. 
 
 damage, 20. 
 distinguished from crimes, 22. 
 
 same act may constitute a public offense and private injury, 33. 
 arising in connection with contracts, 25. 
 waiver of, 25, 20. 
 by relation, 36. 
 
 of incompetent persons, damages for, confined to compensation, 28. 
 rules of responsibility for, not those applied to contracts, 27. 
 of married women, responsibility for, 31, 33. 
 
 joinder of husband, 32. 
 
 if husband die, action survives, 83. 
 
 in presence of husband, latter responsible^ 32. 
 effect of duress, 31. 
 drunkenness no excuse for, 81, 
 
TORTS (continued) — 
 
 liability of partners for, 33. 
 
 liability of members of a mob for, 33, 34. 
 
 liability of corporations for, 34, 35. 
 TRADE-MARKS (see Incorporeal RiqhtsX 
 TRANSITQEE ACTIONS (see Actions). 
 
 TRESPASS — 
 
 on foreign lands, see Actions. 
 TRESPASS TO PERSONALTY — 
 in what it consists, 174. 
 who may be wronged by, 174 
 the possession disturbed by, 174. 
 
 actual possession, 17% 
 
 constructive possession, 175. 
 may be intentional or unintentional, 175. 
 
 accident not a trespass, 175. 
 in person or by another, 175. 
 
 or by animals, 175. 
 force, 175. 
 
 express or implied, 175. 
 
 degree of, immaterial, 176. 
 injury must be direct, 176. 
 
 distinction between trespass and case, ITS, 
 incorporeal hereditaments not subject of, 176. 
 in case of injuries to domestic animals, 176. 
 remedies for, 176. 
 TROVER (see Ck)NTKESlON). 
 
 TRUSTEES — 
 
 frauds by, 3ia 
 
 cannot deal in trust property, 313, 314 
 TRUTH — 
 
 as defense to suit for defamation, 6& 
 
 u. 
 
 UBI JUS IBI REMEDIUM, 6, 7. 
 UNDUE INFLUENCE (see Fraud). 
 
 V. 
 
 VOLUN*rARY ASSOCIATIONS — 
 cannot sue or be sued, 4 
 
 VOLUNTARY SERVICES — 
 degree of skill required in, 374 
 
 VOTING- 
 
 remedy for denial of privilege of, 7. 
 against whom, 161. 
 
 INDEX. 833 
 
 References are to pages. 
 
334: INDEX. 
 
 References are to pages, 
 
 w. 
 
 WAIVER OF TORT (see Tort). 
 
 WARRANT (see Searches; Ciatil and Political Rights). 
 
 WASTE — 
 
 definition of, 123. 
 
 distinguished from trespass, 133. 
 
 voluntary, or permissive, 123. 
 
 what constitutes, depends on circumstances, 123, 124. 
 
 remedy for, 124. 
 
 action on case for damages, 124. 
 injunction to prevent, 124. 
 
 by mortgagor, 125. 
 WATER-COURSES (see Nuisances) — 
 
 what are, 23a 
 
 nuisances in use of, 237, 238, 240. 
 WIFE, RIGHTS OF (see Family Rmhts). 
 WILD ANIMALS — 
 
 property in, 173. 
 
 bees captured,. 173L 
 
 bees reclaimed, 174 
 
 captured on land of another, 174. 
 English rule, 174. 
 American rule, 174 
 
 WORKMEN — 
 
 responsible for such skill as they assume to possess, 273. 
 undertake for good faith and integrity, 273. 
 
 WRONG-DOERS — 
 
 how one may become a, 19. 
 injury sustained by, gives no remedy, 45. 
 illustrations : 
 
 in case of riots, smuggling, etc., 45. 
 in case of Sunday travel, 45. 
 a wrong-doer not out of protection of law, 46. 
 illustrations in case of — 
 
 one engaged in prize-fight, 46. 
 a trespasser, 46. 
 WRONGS (see Actions; Damages; Joint Liability; Public Wkosgs; 
 Private Wrongs; Torts) — 
 general classification of, 1. 
 
 acts may be wrong in law without a wrong intent, 3. 
 distinguished from mere breaches of contract, 2. 
 an act may be wrong in morals, though not in law, 2. 
 what are, must be fixed by positive law, 2. 
 to aggregate bodies, 4 
 damages presumed in, 20. 
 
INBEX. 335 
 
 Brferences are to pages, 
 WRONGS (continued) — 
 
 proximate cause in, 20, 21, 33. 
 ratification of, 37. 
 intended, 33. 
 not intended, 40. 
 
 to personalty, how accomplished, 174. 
 locality of, 18a 
 WRONGS AFFECTING PERSONAL SECURITY, 47 et seq. 
 assaults and batteries, 47 et seq. 
 wtiat is an assault, 47. 
 illustrations of, 47. 
 what is a battery, 47. 
 
 in what a battery consists, 48. 
 the question of assent in, 48. 
 
 the case of ggimes, etc., 48. 
 deception as the equivalent of force, 48. 
 intent, 48. 
 
 accidental injuries not batteries, 48. 
 self-protection, 49. 
 
 excessive force, 49. 
 
 words do not constitute an assault, 49. 
 
 force in defense of family, 49. 
 
 force in defense of property, 50. 
 
 spring-guns as a defense against trespassers, 50.