bis' ■'hi^z^ /^ji,A^ OlorttfU ICatu Bt^nixl Khraty 3 1924 052 869 975 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924052869975 CASES ON TOETS SELECTED AND ARRANGED FOR THE USE OF LAW STUDENTS IN CONNECTION WITH POLLOCK ON TORTS BY ^ " n^ 1-' "^ FRANCIS M. BURDICK NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1892 Copyright, 1891, Bl FRANCIS M. BURDICK. SEP 25 J 937 PEEFACE. In preparing this volume it has not been my aim to present a complete view of the Law of Torts, nor to disclose the his- torical development of its various rules. The cases have been selected with especial reference to their use by law students in connection with Pollock on Torts. As a compact and scientific statement of the general principles of this branch of the law, Sir Frederick PoUock's treatise is unrivalled. It is, therefore, admirably suited to the student's needs. But i^ accomplished author has rarely discussed the decisions of American courts. The present volume is intended as a sup- plement in this direction, containing American cases chosen and arranged with a view to illustrate the text and to give to the student an adequate conception of abstract legal doctrine, by showing its application to concrete facts. In this work, I have been assisted greatly by Professor Collin, late a colleague in the Cornell University School of Law, who generously placed at my disposal his valuable notes and references upon this topic. FEANCIS M. BUEDICK. Columbia College, September, 1891. CASES EEPOETED AND DIGESTED. PAGE Adams v. Bicknell . . . . . . . 259 Adams v. Eivers 296 Am. Print Works v. Lawrence 140 Amoskeag M. Co. v. Goodale 313 Anonymous . . 240 Armstrong County v. Clarion Co 166 Balch v. Jones 292 B. & P. Ey. V. F. B. Church 97 Barholdt v. Wright 132 Bassett v. City of St. Joseph 343 Beach v. Hancock 182 Beals V. Thompson 233 Benson v. Goodwin 79 Bernina, The 341 Bishop V. Panney . . ..... 180 Bishop V. Small 236 Bishop V. Weber 31 Briston v. Burr 188 B. C. &c. Co. V. Kemp 329 B. & W. Py. V. Dana 170 Bohan v. P. J. G. L. Co 297 Blodgett V. Stone 148 Bosch 1). B. & M. Ey. . . . . ... • 38 Boyd's Exrs. v. Browne 242 Brown v. Collins 104 Brown v. Perkins 310 Burrows v. Erie Ey 326 Burt V. Advertiser N. Co 153 Burton v. Chicago &o. Ey. 62 Button v. H. E. Ey 334 Byrne v. K Y. C. &c. Ey. ...... • 359 V VI CASES EEPOETED AND DIGESTED. Campbell v. Race Campbell v. Seaman Cardival v. Smith Carr v. Dodge .... Carter v. Towns Chapman v. W. U. T. Co. . Chapman v. IS. H. Ky. . Chapman v. State . Chatham Furnace Co. v. Moffatt Claflin V. Meyer .... Clark V. Downing . Chesley v. King .... Crescent C. L. S. Co. v. Butchers' U, Chipley v. Atkinson Chicago &c. Co. v. Ross Crispin v. Babbitt Cohen v. D. D. &c. Ry. . Conlan v. Roemer Conklin v. Thompson Coombs V. N. B. Cordage Co. Copley V. G. & B. S. M. Co. . Cornell v. Barnes Cosulich V. S. O. Co. Cove V. Stratton Cuff V. Newark &c. Ry. Churchill v. Hulbert FAOB 136 306 259 291 354 376 339 182 237 326 177 365 259 198 79 75 72 236 356 79 259 86 333 182 71 188 E. Ry. David V. Park Davis V. ]Sr. Y. & N Dawe V. Morris Devlin v. Suell^nburg Dexter v. Cole Dodge v. Colby . Dole V. Erskine Dooling V. Budget P. Co, Doughty 1). Penobscot 247 66 11 270 269 252 185 250 79 Eaton C. & B. Co. v. Averjj^ Elmer v. Fessenden 244 213 CASES EEPOKTED AND DIGESTED. vii PAGE Fahr v. Hays 233 Franklin v. Brown 242 Fertich v. Mishener • 189 Fleming v. M. S. &c. Ey. 329 Ford V. L. S. & M. S. Ky ' . ' 79 Fotheringhani v. A. Ex. Co. ...... 189 Frome v. Devins 276 Gavett V. M. & L. Ey 324 Gizler v. Witzel 188 Goetchus V. Matthewson 93 Gormly v. Vulcan I. W T9 Gott V. Pulsifer 233 Grove v. Yan Duyn ....... 80 Gurley v. Armstead 280 Harrisburg, The . 49 Harvey v. Dunlop 182 Hauch V. Hernandez 353 Hay V. The Cohoes Co 266 Hays V. Mich. C. Ey. , 20 Hewey v. Nourse '351 Heywood v. Tillson .198 Hicks V. Dorn 315 Hill V. Taylor 189 Hildebrand -y. McCrum 189 Hoar V. Wood . 233 Holbrook v. Connor 236 Hgtchkin v. Third IST. Bk 242 Houghkirk v. D. & H. C. Co 59 Houston & Co. V. Cowser 62 Huff V. Austin 333 Hutchins v. Hutchins ...... 11 Hyde v. Cooper 66 tTager v. Adams . k 357 Jenne v. Sutton 356 Jennings v. Yan Schaick 358 Johnson v. Chicago &c. Ey. ...... 62 vm CASES EEPOETED AND DIGESTED. Kelly V. Johnson 79 Keep V. Quallman 178 Kennedy v. McKay . . . .• . . . 2-i8 Kienev.Kufif 214 King V. Patterson 233 Langford v. B. & A. Ky. Lawrence v. Shipman Le Forest v. Tolman L. &c. Co. V. Conroy . Linnehan v. Rollins Little V. Haokett Livermore v. Batchelder Loughlin v. State Losee v. Buchanan Lovell Co. V. Houghton Co. Lovejoy v. Murray Lynch v. McNally MoCafferty v. S. D. &c. Ey. McCue V. Klein . McDonald v. Snelling MeElwee v. Blackwell . McGinnis v. Cam. S. Ey. Mclntyre v. Shotty McGovern v. C. Y. Ey. M'lSTay v. Stratton McPartland v. Eeed MaUaly v. People Maier v. Randolph Marks v. Townsend Marsh v. Ellsworth Martin v. W. U. Ey. Co. Maxson v. D. L. & W. Ry. Max Morris, The Mercer v. Corbin M. & E. Ey. V. Stewart Milwaukee &c. Ey. v. Arras Milwaukee &o. Co. v. Kellogg 192 71 174 79 68 341 141 79 333 233 159 351 71 182 41 252 79 117 79 189 274 351 71 190 233 333 329 334 182 326 151 33 CASES EEPOETED AND DIGESTED. IX Moore v. M. N. Bank Morain v. Devlin Morrison v. Dingley MuUer v. McKesson Munster v. Lamb Myers v. San Francisco E'evin v. P. &c. Co. Newman v. Phillipsburg H. C. Ry. !N". T. L. I. Co. V. Chapman N. Y. & W. P. Tel. Co. V. Dryburg Norcross v. Thoms . . . . North P. Co. V. Kirk . Gates V. U. P. Ry. . Old Dom. S. S. Co. v. McKenna O'Shaughnessy v. Baxter Payne v. Ey. Co. Place V. Minster Platz V. City of Cohoes Pearsall v. W. U. T. Co. Pease v. Smith .... People ex rel. Stapleton v. Bell People ex rel. Deverell v. M. P. TJ. People V. Pearl Peterson v. Haflfner . . . Pixley V. Clark Phillips V. Chicago &c. Co. . PoUasky v. Minchener Pollard V. Lyon . . . . Quinn v. JST. J. L. Co. Eeed v. Home S. Bk. . Reiss v. N. Y. S. Co. Reynolds «. Hussay Rex V. TrafFord Rich V. N. Y. &c. Ry. Co. Richards v. Sandford PAGE 233 117 292 344 233 62 329 335 250 372 306 62 66 195 198 259 144 376 271 93 93 188 184 118 79 233 199 79 259 333 351 119 1 149 CASES EEPOETED AND DIGESTED. PAGE 280 n. Eoaoh V. Turk Kogers v. Elliott 306 S. E. Bank v. S. Bank Santer v. N. Y. C. &o. Ey. Shaw V. Coffin Slater v. Mersereau State V. Lunsford State V. Stewart Stall V. Wilbur . Shea V. Milford Sherry v. Perkins Seybolt v. K Y. &c. Ey. Stewart v. Stearns Stewart v. Sonneborn Stewart v. Wyoming Eanoh Co Stewart v. Southard Simmons v. Everson Smith V. Countryman Smith V. State Spokane Truck Co. v. Hoefer Stokes V. Saltonstall 130 38 363 341 189 198 292 275 198 330 233 253 2-12 90 317 236 188 153 329 Taylor's Adm'r v. Penn. Co. 66 Taylor v. L. S. & M. S. Ey 12 Thorburn v. Campbell 353 Tolman v. S. B. & JST. Y. Ey 334 Towanda Ey. v. Hunger . . . . . . 320 Tuckerman v. Sonnerschein 233 U. S. T. Co. V. Gildersleeve Yan Epps v. Harrison Walker v. Hawley Wasson v. Mitchell Webber v. H. &o. Ey. Weiss V. P. Ey. Co. Weller v. McCormick West V. W. U. T. Co. 376 236 233 93 329 334 358 376 CASES EEPOETED AND DIGESTED. xi PAGE Wheeler v. Lawson 293 W. U. T. Oo. V. Hyer 376 W. U. T. Co. V. Eeynolds 376 Wilson V. McLaughlin 282 White V. Lang 142 Wright V. Bank of M 283 Wright V. Lothrop 232 Woodruff V. Bradstreet 233 Wood V. Graves 192 Wooden Ware Co. v. U. S 154 Wooden v. Western N. Y. &c. Co. , , „ . 62 CASES CITED; PAGE Aaron v. State 116 Abbott V. Kimball 67 A. P. K. Co. V. Douglass 368 Absor V. French 137 Acton V. Blundell 124, 368 Adams v. Barney 314 Adams v. Adams 195 Adams V. Waggoner 134 Adamson v. Jarvis 168 Aldrich v. Howard 14 Aldred's Case 267 Albro V. Agawam C. Co 77 Albany S. B. v. Burdick 248 Alfred v. Parlow 210 Alderson v. Walstell 117 Alexander v. Angle 208 Alexander v. Dewey 205 Alger V. City of Lowell 26 Allen V. Harper 292 Allen V. Addington 243 Allison V. Farmer's B. of V 174 Andreas v. Koffenheofer 208 Armstrong v. Beadle 55 Armytage v. Haley 150 Argentino, The 40 Arnold v. Clifford 167 Atklnsonw.NewcastlejW. W. 14, 29 Atty. Gen'l v. Wilson 167 Auchmuty v. Ham 343 Ayre v. Craven 211 Bailey v. Mayor 146 Baker v. Drake 284 Baker v. Bolton 62 Baker v. Wheeler 156 Baldwin v. Barney. . , 145 Baldwin v. Porter 156 Baldwin v. Weed 195 Ballew V. Alexander 174 B. & W. By. V. Dana 364 B. & O. Ry. Co. w. State 29 B. & O. Ry. V. Boteler 25 FAQB Barnard v. Bartlett 17 Barnard v. Poor 352 Barnes v. Chopin 46 Barnes v. Ward 25 Barry v. N. Y. C. &c. Ry 359 Barnet v, Allen 210 Bassett v. Salisbury Co 313 Bassett v. Co 149 Bassell v. Elmore 214 Baten's Case 314 Batohelder v. Keagan 352 Blackman v. Simmons 346 Blad's Case 175 Blakeu. MuUiken 292 Blake v. Thirst 70 Blann v. Cochern 164 Blair v. Forehand 19 Blassingame v. Glaves 174 Brailey v. Southborough 140 Brass v. Maitland 355 Brayne v. Cooper 210 Bebinger v. Sweet 10 Beck V. Carter 25 Beach v. Trudgaln 314 Beach u. Ranney 212 Beardsley v. Toppan 208 Bell V. Hansley 134 Bellinger v. N. Y. C. Ry. Co., 121, 304 Benjamin v. Wheeler 369 Benton v. Pratt 10 Berea Stone Co. v. Kraft 79 Besson v. Southard 256 Beseman v. P. Ry 304 Betts V. Gibbins 168 Brewster v. Silliman. 273 Bignell v. Buzzard '. 252 Binks w. S. Y. Ry. Co 25 Bird V. Holbrook 322, 347 Bissell V. Cornell 205 Bridge v. G. J. Ry 340 Bristol V. Burt 273 xiii XIV CASES CITED. PAGE Brittain v. Kinnard 83 Boardman u. Gore 171 Bosworth B. Swansey 147 Bowen v. Hall 198 Boulter v. Clark 133 Bower v. Fenn 238 Broadbent v. Eamsbotham 125 Bradley v. Fisher 83 Brock V. Copeland 347 Brooklyn v. Brooklyn City Ey. . 30 Brooks V. Somerville 71 Brooker v. Coffin 204 Broff V. Mali 245 Brown w. Cayuga &c. Ey. . . .101, 119 Brown v. Castles 248 Brown v. Wootton 160 Brown v. Montgomery 241 Brown v. Kendall 116 Brownlie v. Campbell 238 Brownell v. Flagler 322 Brown v. Carpenter. 345 Boyce v. Brockway 273 r Buckland v. Johnson IGO Buck 11. Hersey 208 Buckland v. Adams Ex. Co . 282 Buckmaster v. Needham. 292 Buchanan v. Smith 257 Buchanan v. W. J. Ey 40 Burhams v. Sanford 255 Bushel V. Com. Ins. Co 374 Bullock V. Babcock 183 Bullard v. Harrison. 137 Burnell v. N. Y. C. & C. Ey.. . . . 327 Bush ». Brainard .-. 321 Buys V. Gillespie 212 Blyth w. B. W. W 358 Blyth V. Topham 321 Caldwell v. Black 68 Cady V. Case 153 Cahart v. A. G. L. Co.. 305 Caldwell v. Steamboat Co .. 33'2 Callahan v. Beam 356 Camp V. W. TJ. Tel. Co 375 Campbell v. Eichards 35 Campbell v. Seaman 298 Canning v. Williamstown 140 Card V. Case 346 C. H, &c. Turnpike Co. v. Entter, 374 Co. of Carpenters v. Hayward. . 825 Catlin V. Valentine 298 Catlin V. Gunter 265 Catlin V. Hills 340 PAGE Carlton v. Taylor 194 Carew v. Eutherford 198 Carroll v. Staten I. Ey 145 Carter v. Andrews 208 Carter v. Boehm 35 Carey v. Berkshire Ey 50 Cazeaux v. Mali 245 Chuddock ». Briggs 206 Chaffee v. Pease 149 Chaffee v. Fort 241 C. R. Co. V. Foster 116 Chapman v. Dyett 192 Champer v. State 134 Clapp V. Kemp 71 Clark V. Downing 181 Charles Eiver B. v. Warren B.. . 19 Charles Morgan, The 53 Crapo v. Allen 52 Chasemore v. Eichards 125, 368 ChatfieldtJ. Wilson 125, 870 Clatsop Chief, The 55 Clemens v. Hannibal &c. Ey. .... 38 Clements v. Chivis 202 Cleveland w. C. G. L. Co 299 Claxton V. Swift. 161 Crepps V. Burden 145 Cincinnati v. Stone 70 City of Brussells 53 Chickering v. Eobinson ....... 96 China, The.. 175 Chicago Ey; Co. v. Wilcox 339 Chipman v. Palmer 318 Clifford V. Atlantic CM 213 Crittenden v. Wilson 101 Cocke V. Jenner 161 Cockroft u. Smith 186 Coggs V. Bernard 6 Coggins V. Helmslay 53 Cogswell V. Baldwin 347 Cogswell V. N. Y. &c. Ey 298 Coggswell V. Inh'b's of Lex. ... 25 Colburn u. Patmore 167 Cole V. Cassidy 238 Cole V. Hindson ...» 90 Columbia, The 57 Collins v. Albany & S. Ey. . . . . . . 150 Colgrove i). N. Y. & H. Ey 843 Colman v. Godwin 204 Colt V. Owens. 287 Connah v. Hall 273 Com. V. Call. 245 Com. V. Colberg 134 CASES CITED. XV PASE Com. V. Harley 246 Com. V. Kidder 102 Com. V. Reynolds 17 Com. V. Tobin 17 Com. V. Woodward 142 Conch V. Steel 29 Conklin v. N. Y. 0. &c. Ry 304 Connolly v. Boston 143 Conway v. B. &c. Ry 77 Cook V. Champ. T. Co 322 Cook V. Cook 212 Cook V. Ellis 296 Cook V. Nathan 287 Cook V. Waring 47 Cooper V. Barber 126 Cooper V. Schlesinger 238 Cooper V. TJtterbaoh 258 Cooper V. Witham 171 Cooper V. Shepherd 160 Cobbett V. Gray 181 Corbett v. Barnes 161 Cotton V. Huidekoper 255 Corbett v. Brown 243 Coupal V. Ward 195 Cowles V. Kidder 313 Cox V. Burbridge 47 Coventry v. Barton 169 Cloon V. Gerry 257 Cross V. Guthery 50, 174 Crouch V. Steele 14 Crump V. Lambert 308 Curtis V. Carson. 186 Curtis i;. ]Sr. Y. &c. Ry 382 Cutting V. Seabury 51 Cutter V. Howe 195 Dally V. Young 68 Daniel v. Met. Ry. Co 30 David Reeves, The 54 Darting v. Williams 135 Davis V. Gardiner.s. 212 Davis V. Betz 237 Davis V. Sawyer 808 Davis V. Saunders 117 Davis V. Garrett 42 Davies v. Snead 214 Davies v. Stone 195 Davies v. Solomon 210 Davidson v. Nichols 45 Dawkes v. Coveneigh 171 Day V. Bach 192 Drake v. Mitchell 162 Dennick y. Ry. Co 50, 65 FAGB Deringw. Earlof Winchelsea... 169 D. L. & W. Ry. V. Salmon 38 Demarest v. Haring 208 Demick v. Chapman.. 294 Derry v. Handley 214 Deyou. VanValkenburgh. ..... 192 Dickinson v. Barber 117 Dickinson v. Canal Co 126 Dillon V. Anderson. 287 Dixon V. Bell 48, 354 Dolan u. N. D. & C. Ry 323 Dole V. Erskine 136 Dormay v. Borrodaile 117 Doyle V. Wragg 325 Dunn V. H. & G. Ry 68 Dunnell v. Piske 206 Dusenburg v. Keiley 192 Earl V. Camp ; 88 Eaton V. Pitchburg Ry. Co. .. . . . 24 Eaton V. B. & L. Ry 41 Eaton V. E. & N. A. Ry 70 Earl V. Van Alstine 345 Eastman v. Amoskeag Co. . .117, 313 Edgerton w. N. Y. &c. Ry 832 Edsall V. Russell 210 Elwell V. Martin 364 Elliott «. Brown 136, 185 Elliott V. Porter 164 Epsilon, The 55 Erie v. Caulkins 70 Esmay v. Eanning 273 Esty V. Wilmot 193 Evans v, Harlow. 252 Fairfax v. N. Y. &c. Ry 327 Faris v. Starke 257 Farmer v. Darling. ! . . . 255 Farrant v. Barnes 355 Farnsworth v. Lowery 276 Fay B.tfrentice 314 Fay V. Whitman 308 Fen V. Dixe 252 Fent V. Toledo &c. Ry 38 Fletcher v. Rylands 106 Fitzgerald v. Gavin 185 Filliter v. Phippard Ill Filer v. N. Y. C. &c. Ry 326 Finch V. Cocken 90 Fish v. Dodge 103, 298 Fisher v. Mellen 238 Fish V. Cleland 287 Ford V. Monroe 50 Fowles V. Bowen , 214 XVI CASES CITED. PAGE Powleru. Dowdney 207 Powle V. Alexandria 374 Forsyth v. Hooper 71 Poster V. Charles 243 Foster ■u. Com 174 Floyd V. Brown 163 Fouldes V. Willoughby 273, 276 Gardner v. Heartt 322 Gallagher v. Jones 291 n. Galena &c. Co. ». Loomis 29 Garland, The 55 Glassner v. Wheaton 273 Grainger v. Hill 194 Graves v. Shattuck 314 Gray v. Ayres 312 Gerrish v. Newmarket Co 313 Greason v. Keteltas 346 Great FalU Co. v. Worcester. . . 314 Gen'l S. N. Co. v. Guillon 175 Glendon Iron Co. v. Uhler 365 Green v. Hud. R. Ry 50 Greenland v. Chap in 47 Greensdale v. Halliday 314 Greenleaf v. Francis 369 Gibbs V. Dewey 205 Gibbs V. Chase 270 Gibbons v. Pepper ' 183 Ginna «. Sec. Are. Ey 332 ', Grizzle v. Frost. 355 Gizler v. Witzel 136 Gilliam i). S. &c. Ey 75 Griswold v. Sedgwick 90 Golden v. Newbrand. 75 Goldstein v. Foss 208 Goodale v. Tuttle 125 Gregory v. Duke of Brunswick, 198 Goodsell r. N. H. Ry 50 Gosling D. Morgan 208 Guldfaxe, The «. . 55 Gunter v. Astor 198 GruUe v. Snow 270 Gruman v. Smith 287 Gwynne v. Poole 82 Haa'ck v. Fearing 75 Hackett v. King 195 riaddam v. Scott 211 Halley, The 175 n. & A. Bank v. Howard ' 89 Hanmer v. Wilsey 273 Haly V. Free 243 Hatfield v. Roper 835 I-Iamilburg v. Shepard 195 PAGE Harwood v. Benton 370 Hartley v. Herring 212 Hardcastle ». S. Y. Ry. Co 25 Harman v. Tappender 91 Hammack v. White 113 Harwood v. Lowell 140 Hastings v. Stetson 213 Harris v. Saunders 273 Hoy V. Cohoes Co 121, 300 Hannen v. Edes 186 Hays V. People 178 Hayden u. Shed 192 Hazard ii. Irwin 238 Hedges «. H. R. Ry 290 Heeg «. Licht 298 Hepburn's Case 174 Heald v. Carey 276 Heard v. James 156 Hegerich «. Keddie 64 Heming v. Power 210 Henn's Case 137 Higgins 11. Butcher 171 Higgins V. Dewey 36 Highland Light, The 52 Hill i). Ry. Co 34 Hillier v. Alleghany Co. Ins. ... 43 Hilton V. Woods 155 Hiort V. Bott 273 Hirshfield v. London Ry 237 Hitchcock V. Whitney 296 Hinckley v. Emerson 142 Holt v. Scholefleld 204 Holcomb V. Town of D 147 Hoag V. Hatch 212 Holly V. Boston G. L. Co 356 Holley v. Mix 194 Holmes d. 0. & C. Ey 54 Holmes v. Seely 137 Hogle V. N. Y. C. &c. Ry 287 Homan v. Stanley 25 Hopper V. Reeve 178 Horbach's Admrs. v. Elder 169 Horner v. Marshall 117 Howe u. Mason 96 Howe V. Clancy 363 Hounsell v. Smyth 25 Howland v. Vincent 25 Hughes V. McFie 356 Hubgh V. N. 0. &c. Ry 58 Hunt V. Bates 163 Hunt V. Simonds 369 Hunter v. State 280 CASES CITED. xvii Hnrd v. Darling 292 Hui-d V. "West 294 Hyde Park v. Gay 17 Ihl V. Forty-Second St. Ey "60 Hot V. "Wilkes 322, 349 Ingram y. Lawson 252 Inhabitants of China v. South- wick 122 Ins. Co. V. Brame 50 Ins. Co. V. Eriend 39 Ivindes v. Universal I. Co 42 Irving V. Wood 318 Isaacs V. Third Ave. Ky 75 J. R. Mfg. Co. V. N. H. S. Co.. . . 332 James v. Campbell 117 James v. Christy 50, 52 Janson v. Stuart 209 Janson v. Brown 142 Jeffries v. Ankeney 92 Jeffrey v. Bigelow 250 Jegon V. Vivian 155 Jenkins v. Fowler 369 Jenks V. "Wilbraham. 41 Joannes v. Bennett 214, 231 Johnson v. Chambers 255 Johnson v. Morrell 241 Johnston H. Co. v. Meinhardt. . . 198 Johnson v. Town of 1 147 Jones V. Andover 147 Jones V. Brown 86 Jones V. Perry 346 Jordin v. Crump 322 Judson V. "Weston Ey 282 Klander v. McGrath 318 Kearns v. Sowdan. 143 Keenholts v. Becker 214 Kelly V. Tilton 346 Keiler v. Sessford 209 Keller «. Ey. Co 34 Kellinger v. P. S. S. &c. Co 304 Kellogg V. C. & N. "W. Ey.. . . . 36 Kemp V. Neville 83 Kennison v. Hum 292 Kenney v. Laughlin 207 Kersel v. Earnest 292 Kerr v. Penn. Ey 36 Krebs v. Oliver 207, 214, 231 Kimball v. Cushman 71 King V. Burdett 216 King V. Hoare 159 Kirby v. Boylston Market 20 Knight V. Gibbs 211 PAQB Knight V. N. Y. L. E. & W. Ey. Co 31 Krom V. Schoonmaker 117 Koney v. Ward 347 Knott V. Cunningham 164 Lamb v. Camden &c. Ey 327 Lambert & OUiot «. Bessey..l05, 268 Landt v. Hilts 192 Lane v. Baker 91 Lane v. Cotton 375 Lange v. Benedict 86 Langmaid v. Puffer 90 Laroche v. Wasbrough 89 Larmore v. C. P. L Co 360 Laverty v. Snethen 279 Lee V. Eiley ; 47 Leeds v. Met. Gaslight Co 61 Le Forest v. Tolman 143 Leonard v. Tidd. . '. 281 Leonard v. Navig. Co 64 Levi V. Brooks 75 Lewis V. Eead ». 68 Lisbon v. Lyman 115 Litchfield v. Hutchinson'i 238 Little V. Moore ..■'..... 81 Livingstone v. Eawyard's Coal Co 155 Livingstone v. Bishop 163 Loftus V. Fraz 81 Logan V. Austin 133 The L. I. N. S. P. & F. Trans. Co 55 Longmeid v. HoUiday 32, 355 Lorting v. Mulcahy 281 Losee v. Buchanan 112, 300 Lonsdale v. Nelson 312, 314 Lovett V. S. & S. D. Ey 356 Lowery v. Manhattan Ey 38 Lucas D. N. B. & T. Ey 326 Lumby v. AUday 210 Lumley v. Gye 198 Luse V. Jones 280 Lynch v. Knight 210 Lynch v. Nurdin 47 Lyons v. Desotelle 143 MoClury v. Eoss 202 McCormick v. Sisson 256 McDonald v. Mallory 63 McGrath v. Mervin 143 McGrew v. Stone 355 McGuinty v. Herrick 192 McGoldrick v. Willets 272 XVlll CASES CITED. FAQB McGovern v. N. Y. C. &c. Ky. . . 60 Mclntire v. Coal Co 271 Mclntyre v. N. Y. C. & H. E. Ey 62 McKeon v. See - • 300 Mahler v. N. & N. Y. Tr. Co 175 Magnay v. Burt 89 Maguire v. Dinsmore 280 Mahan v. Brown 6 Malcom v. Spoor 193 Manning v. Albee 248 Mangan v. Atherton 356 Mangold v. Thorpe 81 Manhassat, The 57 Markham v. Jaudon 284 Markham v. Cob 171 Marsden v. City &c. Co 42 Marshall- v. Blackshire 142 Mason v. Shawneetown 26 Massoth u. D. & H. Ey 29 Master S. Asso. v. Walsh . . 198 Martin v. Riddle 125 Martin v. Stillwell 205 Martin v. Porter 155 Marble v. Eoss 143 Marble v. Worcester 41 Mathew v. OUerton 134 Matthews v. Coe 284 May V. Burdett 345 Mayor &c. v. Bailey 122 Mayer v. Walter 195 Mayor of Colchester v. Brooke, 355 Mayor &c. v. Brooke 312 Mayor &c. v. Williams 28 Merest v. Haryey 296 Merritt v. BrinkerhofiF 122 Merritt v. Barle 147 Merritt v. Lyon 294 Merriweather v. Nixon 167 Metcalf V. McLaughlin 281 Metallic Comp. Co. v. Fitchburg Ry 17, 40 Miller v. Adams 192 Miller v. Baker 270 Miller v. Teuton 167 Mills V. Wimp 208 Milnes v. Mayor &c 31 Milwaukee & St. P. Ey. v. Kel- logg 30 Mitchell V. Clapp 175 Mitchell V. Jenkins 255 Mitchell V. Williams 325 PAGE Milliken v. Thomdike 238, 240 Miller v. Parish 206 Monaghan v. Horn 57 Monongahela Nav. Co. v. Coon, 124 Morgan v. Varick 270 Morgan v. Shiddy 245 Morgan v. Atherton 48 Morgan v. Powell 155 Morley v. Pragnell 268 Morrison v. Davis 47 Morse v. Crawford 117 Morris v. Piatt 116 Morton v. Shoppe 178 Mogul S. Co. V. Macgregor. 198, 372 Moore v. Meagher 212 Moores v. Bunker 292 Moore v. Tracy 263 Moulton V. Inh'b's of S 343 Mullen V. St. John 332 Mullen V. Brown 195 Mnloy V. Ins. Co .'. . . 35 Munger v. Hess 273 Munroe v. Stickney 149 Mumf ord v. McKay 292 Munger v. Towanda Ey 356 Munn V. Eeed 356 Murphy f. N. Y. C. &H. E.Ey., 61 Murray i). Long 256 Needham i'. G. T. Ey 175 Nelson r. Merriam 283 Nesbitt w. St. P. L. Co 157 Newbery v. Garland 245 Newell V. Downs 255 Newkirk v. Sabler 137 Newton v. Ellis 70 Nichols V. Pinner 241 Nicholson v. N. Y. C, &c. Ey 360 Nicholson v. Coghill 255 Norman v. Higgins 35 Norton v. Sewall 32 Norris v. Litchfield 146 Norwich v. Breed 25 Noyes v. Patrick 234 Oberlander v. Speiss 240 O'Brien v. Barry 195 O'Callaghan v. Cronin 6 0. G. L. &c. Co. V. Thompson. . . 299 Ogden V. Turner 203 O'Mara v. Hudson E. Ey 60 Onslow V. Home 203 0. & M. Ey. V. McClelland 29 Oldfield u. N. Y. &c. Ry 60 CASES CITED. XIX PAGE Omstead v. Partridge 258 O'Neill V. James 345 Orange Bank v. Brown 7 Osterhout v. Roberts 164 Ottenot V. N. Y. L. &c. Ey 304 Otis V. Jones 273 Page V. Bent 238 Page V. Gushing 194 Page II. Freeman 164 I'age V. Parker 261 Palmer v. Foley 192 Panton v. Holland 371 Parsons v. Sutton 286 Parker v. Walrod 270 Parkins v. Scott 214 Parrott v. Wells 117 Partenheimer v. Van Order .... 343 Pasley v. Freeman 263 P^tton V. Freeman 174 Piatt V. Hlbbard 327 Pearson v. Skelton 169 Peek V. Derry. 238 Penn. Ry. Co. v. Hope 36 Penn. Ey. v. Kilgore 326 Penruddock's Case 314 People V. Fisher 198 People V. Sands 305 Perdue v. Burnett 208 Perkins v. Scott , 210 Perley v. Eastern Ey 36 Pettingill v. Rideout 174 Peters ij. W. Ins. Co 43 Phelps V. Nowlen , . 367 Phelps u. Sill 96 Pressy v. Wirth 175 Pippin V. Sheppard 32 Piscataqua Bank v. Turnley 174 Phil. W. & B. Ey. v. Phil. &c. Co., 145 Phillips V. Eyre 175 Phillips V. Hall 270 Phillips V. Biggs 168 Poland V. Brownell 235 Pollock V. Eastern Ry 29 Popplewell V. Pierce 175 Pottstown Gas Co. ■«. Murphy.. 299 Powell V. Deveney 46 Powell V. Salisbury 47 Proctor V. Adams 17 Plummer v. Webb 51 Putnam v. Payne 345 Queen v. Rollins 198 . Quin V. Moore 60 PAGE Radcliflf u Brooklyn 120, 304 Rafael v. Verelest 198 Ry. Co. V. Stout 31 Ry. Co. V. Terhune 29 Ry. V. Hanning 70 Ramsey v. Eiley 91 Eandall y. B. & O. Ey. Co 31 Eandall v. Hazelton 6 Eavenga v. Mackintosh 258 Eanlston v. Jackson 257 Eawstron v. Taylor 125 Eead v. Coker 181 Eead v. Nichols 38 Eedman v. Wilson 42 Eeed v. Edwards 47 Eeese E. M. Co. v. Smith 238 Eedway v. Gray 209 Regina v. Watts 318 Eenner v. Canfleld. 40 Eenner v. Ey. Co 326 Eeston v. Pomfreicht. 212 Rex V. White 298 Reynolds v. Corp 192 Reynolds v. Shuler 270 Eice V. Manley 10 Eichardson v.'S.Y.C 175 Eider v. White 346 Eigby V- Hewitt 47 Eipka V. Sergeant 271 Eixford v. Smith 115 Eoath V. DriscoU 124, 371 Roberts «. Roberts 210 Eobinson v. Culp 174 Eobinson v. Cone 339 Eoche 1;. M. G. li. Co 117 Eockwood V. Wilson 303 Eogei-s V. Moore 163 Eoland v. Gosse 58 Romaine v. "Van Allen 284 Ross V. Johnson 280 Rowley v. Rice 195 Russell V. Mayor 316 Russell?;. Fabyan 112 Ruter V. Foy 136 Ryan u. N. Y. C. Ry 36 S. H. S. Co. V. Tipping 298, 308 S. R. Bank v. S. Bank 369 St. L. V. &T. H. Ry. ■!). Dunn... 29 Salt S. B. V. Wheeler 280 Saltus V. Everett 272 Sampson v. Smith 103 Sanderson v. Caldwell 163 XX CASES CITED. PAGE Saville v. Jardine 209 Sawyer v. Nichol^ 325 Savage v. Stevens 238 ■ Schnable v. Koeliler 271 Shafter v. Klnster 208 Sharp V. Mayor of N. Y 265 Sharp V. Gray 164 Shay V. Thompson 134 Slaughter House Cases 198 Slater v. Mersereau 318 Sparhawk d. U. P. Ey 308 Stanley v. Gaylord 116 State V. Nett 180 State V. Paul 312 Stratton v. Staples 25 Swan V. Toppan 251 Sea Gull, The 52 Searle •». G. C. &c. By 40 Seddonti. Connell 168 Severy v. Nickerson 18 Seward v. Vera Cruz 50 Scheffer w. By. Co 40 Schwenk v. Naylor 248 Sheldon i;. Kibhe 163 Sherman v. Favour 143 Steamboat Co. v. Chase 53 Steele v. Burkhardt 143, 146 Steers v. Liverpool S. Co 327 Stephens v. Myers 181 Sweeney v. 0. C. & N. Ey 18 Steinmetz v. Kelly 136 Sldensparker v. Sidensparker. . . 352 Siemers v. Eisen 29 Simons v. Carter 207 Simpson u. Hornbeck 192 Singh V. Schneider 156 Singleton u. E. C. Ey 356 Sinnickson v. Johnson 101 Schmidt v. Blood 327 Schmidt v.M. & St. P. Ry. Co., 29 Schmid v. Humphrey 146 Slim V. Crouoher 238 Smith V. Condry 176 Smith i;. B. G. L. Co 374 Smith V. Pelah 346 Smith V. State 134 Smith -B. B. & M. Ey 147 Smith V. Agawam Canal 123 Smith J). Trawl 96 Spring V. Short 294 Strickland v. Barrett 281 Schofleld V. Ferrers 256 PAGE Snow V. Allen 258 Scott V. Eogers 287 Scott i). London Dock Co 113 Soltau V. DeHeld 308 Snow V. Cowles 313 Spooner v. Manchester 279 Spofford V. Harlow 1*3 Stone V. Hooker 169 Stone V. Denny 238 Story V. Hammond 174 Stormont v. Waterloo L. &c. Co., 325 Stowell V. Otis 293 Stowell V. Lincoln 149 Stout V. Wren 134 Sullivan u. U. P. Ey 50 Sutton V. Town of W 146 Sutton V. Johnstone 256 Sutton V. N. Y. C. &c. Ey 360 Sutton V. Clark 109 Shurtleflf v. Parker 213 Sylvan Glen, The 56 Tallman w. S. B. & N. Y. Ry 30 Tarlton v. McGrawly. 198 Taylor v. Doremus 81 Taylor w. L. S. &c. Co 29 Taylor w. Williams 256 Taylor v. Jaques 195 Taylor v. Whitehead 137 Terwilliger v. Wands 214 Tremain v. Cohoes Co 121 Tilley v. Hudson E. Ry 61 Tillotson V. Smith 149, 313 Timlin v. Standard Oil Co 318 Titus V. Sumner 214 Twitohell v. Shaw 89 Tobias v. Harland 251 Todd V. Hawkins 230 Teledo &c. Ry. v. Harmon 75 Tourtellot v. Rosebrook 352 Townsend v. Wathen 355 Towanda, The 53 Towne ■;;. Willey 364 Thomas v. Winchester 44, 47 Thorogood v. Byan 340 Thorne v. Prentiss 248 Tuberville v. Savage 181 Tubervil v. Stamp Ill Tucker v. White 238 Thurston v. Hancock 302 Tyler v. Wilkinson 122 Udell V. Atherton 249 Uline V. N. Y. C. &c. Ry 304 CASES CITED. XXI PAGE Underwood v. Bobinson 89 Usher v. Ey. Co 65 Vandcrip v. Roe 207 Vandenburg v. Truax 47 Van Ness v. Hamilton 205 Van Steenburgh v. Tobias 343 Vaughn v. Congdon 86 Vanghan v. Menlove 355 Vicars v. Wilcox 211 Villiers v. Mousely 209 Vincett v. Cook 318 Vincent v. Conklin 273 Vincent v. Stinebour 116, 117 Voorhees v. Leonard 255 Wakeman v. Robinson 117, 183 "Wall V. Hoskins 175 Walker v. Croniu 198, 366 Walker v. Davis 364 Waller v. Loch 214 Walter v. Sample 258 Walter v. Selfe 308 Walsham v. Stainton 261 Ward V. Centre 244 Ward, E. B.,Jr 56 Warmouth v. Cramer 217 Watson V. Atwood 248 Weaver v. Ward 107, 183 Webster v. H. R. Ry 343 Webb V. Hill 255 Webb ■!;. R. W. & O. Ry 36 Weems v. Mathieson 58 Welby v. Elston 210 Weld V. Oliver 292 Welsh V. Wesson , 146 Wesson v.W.l.Co 307 Westcott V. Middleton 308 Western C. M. Co. v. L. C. M. Co., 252 Western Bk. of Sc. v. Addie 249 Weymouth ?;. C. & N. Ry 156 Wheatley v. Baugh 371 Wheeler v. Brandt 346 Wheeler v. Nestait 255 Wiggins i;. Leonard 261 PAGE Widrig V. Oyer 205 Wilkes V. Jackson 163 Williams v. G. W. Ry. Co 30 Williams v. Hill 212 Williams v. Hunter 131 Williams v. E. I. Co 355 Williams v. Nelson. 119 Williams v. Powell 195 Williams v. SalTord 137 Williams v. Smith 192 Wilmarth v. Burt 89 Wilson v. Dubois 252 Wilson II. Reed 292 Wilson V. Newport Dock Co. . . 43 Winchell v. Hicks 345 Winchesters. Craig 156 Wintinghouse v. La Foy 270 White ■». Conly 40 White V. Eort 174 White V. Spettigue 171 White V. Sawyer 250 Whitehead v. Mathaway 136 Whitney v. Bartholomew 103 Whitman v. Spencer 261 Wright «. M. & M. Ry 356 Wright V. Page 206 Wright V. Ramscot 141 Wright V. Wilcox 75 Wood «. Weir. 256 Wood V. Erie Ry.. 147 Wood V. Wood 175 Wood V. Morewood 155 Woodman v. Tufts 149, 313 Woodside v. Adams 276 Wooley V. Batte 169 Woolf V. Chalker 346 Woolnoth V. Meadows 204 Yeates v. Reed 117 Young V. 137 Young V. Harvey 25 Young V. Macrae 252 Young V. Miller 205 Book I. CHAPTER I. THE NATURE OF TORT. EioH V. ISr. Y. C. & H. Eiv. E. Co. (87N.T. 382. — 1882.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 18, 1879, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial. a. W. Van Pelt for appellant. Willia/m Allen JSutler for respondent. Finch, J. We have been unable to find any accurate and perfect definition of a tort. Between actions plainly ex con- tractu and those as clearly ex delicto there exists what has been termed a border-land, where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other, and become so nearly coincident, as to make their practical separation somewhat difficult. (Moak's Underbill on Torts, 23.) The text writers either avoid a definition entirely (Addison on Torts), or frame one plainly imperfect (2 Bouvier's Law Diet. 600), or depend upon one which they concede to be inaccurate, but hold sufficient for judicial purposes. (Cooley on Torts, 3, note 1 ; Moak's Under- bill, 4 ; 1 Hilliard on Torts, 1.) By these last authors, a tort is described in general as " a wrong independent of contract." 1 1 2 THE NATURE OF TOET. [bk. i. And yet it is conceded that a tort may grow out of, or make part of, or be coincident with a contract (2 Bouvier, swpra), and that precisely the same state of facts, between the same parties, may admit of an action either ex contractu or ex delicto. (Cooley on Torts, 90.) In such cases the tort is dependent upon, while at the same time independent of the contract; for, if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract. (1 Addison on Torts, 13.) Ordinarily, the essence of a tort consists in the violation of some duty due to an individual, which duty is a thing different from the mere contract obligation. When such duty grows out of relations of trust and confidence, as that of the agent to his principal, or the lawyer to his client, the ground of the duty is apparent, and the tort is, in general, easily separable from the mere breach of contract. But where no such relation flows from the constituted contract, and still a breach of its obligation is made the essential and principal means, in combi- nation with other and perhaps innocent acts and conditions, of inflicting another and different injury, and accomplishing another and different purpose, the question whether such in- vasion of a right is actionable as a breach of contract only, or also as a tort, leads to a somewhat difficult search for a dis- tinguishing test. In the present case, the learned counsel for the respondent seems to free himself from the difficulty by practically denying the existence of any relation between the parties, except that constituted by the contract itself, and then, insisting that such relation was not of a character to originate any separate and distinct legal duty, argues that, therefore, the bare violation of the contract obligation created merely a breach of contract, and not a tort. He says that the several instruments put in evidence showed that there never had been any relation bet^yeen the plaintiff and the railroad company, except that of parties contracting in reference to certain specific subjects, by plain and distinct agreements, for any breach of which the parties respectively would have a remedy, but none of which created any such rights as to lay the foundation for a charge of wilful misconduct or any other tortious act. Upon this theory CH. I.] EICH V. N. Y. C. & H. K. EY. CO. 3 the case was tried. Every offer to prove the contracts, and especially their breach, was resisted upon the ground that the complaint, through all its long history of plaintiff's grievances, alleged "but a single cause of action, and that for a tort, and, therefore, something else, above and beyond and outside of a mere breach of contract, must be shown, and proof of such breach was immaterial. From every direction in which the plaintiff approachfed the allegations of his complaint, the same barrier obstructed his path and excluded his proof. Whatever may be true of the earlier agreements between the plaintiff and the railroad company, and conceding, what seems prob- able, that the evidence relating to them was properly rejected, on the ground that they left the defendant entirely at liberty to change the site of its depot, so that such change was in no respect either unlawful or wrong ; there was yet a later agree- ment by the terms of which the defendant was bound, as soon as practicable and within a reasonable time, to restore the depot to its old location. The complaint explains the impor- tance of such restoration to the plaintiff. It alleges that val- uable property of his, heavily mortgaged, had depreciated in value in consequence of the removal of the depot, and could only be restored to something like its old value, and saved from the sacrifice of a foreclosure in a time of depression, by the prompt return of the depot to its former site. The complaint further avers, that to secure this result, the plaintiff had sur- rendered valuable riparian rights to the defendant, but the latter, fully understanding the situation, maliciously and wil- fully broke its agreement, and delayed a restoration of the depot for the express purpose of preventing plaintiff from being enabled to ward off a foreclosure of the mortgage, and itself instigated such foreclosure and caused the ultimate sac- rifice. For the breach of this contract to restore the depot within a reasonable time, the plaintiff had a cause of action. But this was not the one with which he came into court. -His complaint was for a single cause of action, and that for a tort; and what that alleged tort was, it is quite necessary to know, and in what respect, and how it differs from a mere breach of contract, in order to determine whether the rejected proofs were admissible or not. 4 THE NATUEE OF TOET. [bk. i. That a good cause of action, sounding in tort, was stated in the complaint was not denied upon the trial. Neither by de- murrer nor by motion was the sufficiency of the complaint in any manner assailed. The second ground upon which a nonsuit was asked, practically confessed that there was good cause of action, but merely a failure to prove it. The ground stated was, " because the gist of this action is the malicious and un- lawful acts of the defendant in pursuing a scheme or plan to injure the plaintiff by depriving him of his property, based upon an alleged malicious violation of certain alleged contracts ; but the proof offered fails to make out any cause of action as set forth in the complaint." The opinion of the General Term distinctly concedes the point, saying, that the facts alleged made out " a clear case of fraud." And on the present appeal the learned counsel for the respondent explicitly admits, in his brief, that it was competent for the plaintiff, under the issue of fact joined by the pleadings, to give evidence of any of the alleged wrongful acts charged in the complaint, as a basis for the claim of damages which he asserted. There was, therefore, something to try; something which was susceptible of proof; a tortious act or omission, or a series of such acts or omissions, properly alleged in the complaint and open to the plaintiff's evidence. "Why he was not permitted to have a single one of the forty questions put to his witnesses answered becomes, now, the important inquiry. It will not be necessary to consider them all, for many were excluded for a defect in their form, or because totally immaterial, or in the exercise of the proper discretion as to the order of proof, but enough remain, and may be grouped together, to raise the serious question argued at the bar. The plaintiff offered to show the agreement of March, 1877, between himself and the railroad company, for the restoration of the depot to its original site within a reasonable time, and the breach of that agreement by the defendant company. The objection, put upon the ground that the offered proof was irrelevant and incompetent, was sustained and the evidence excluded. The plaintiff then sought to show how long a time elapsed, after the execution of the contract, before the depot was re-established at the foot of Main street ; whether CH. I.] EICH V. ]Sr. Y. C. & H. E. EY. CO. 5 an interval did occur, and how much time elapsed from the date of the contract to the building of the new depot, which evidence was also excluded as immaterial. A series of ques- tions were further put, to show what the defendant did, if any- thing, in and abo;ut procuring plaintiff's mortgaged property to be sold and sacrificed- under the mortgage; when the fore- closure took place ; at whose instigation ; and at what price, compared with its real value, the property was sold. These questions were excluded. The plaintiff also attempted to show that the re-establishment of the depot at the foot of Main street would have largely increased the value of his adjoining property covered by 'fhe mortgage. That evidence was re- jected. The plaintiff was then asked if he had an interview with the officers of the defendant in reference to the removal and the re-establishment of the depot. This question was objected to, and the only ground assigned was, "as it is in writing." -No proof of that was given ; the case shows nothing but the assertion of the party objecting, and there- upon the witness was not permitted to answer the inquiry, whether he had an interview at all. He was then asked what reasons they assigned for removing the depot and refusing to bring it back, and this was excluded. And in the end the plaintiff was nonsuited because he had given no proof of a tort or a fraud. He now insists that he was first debarred from giving such proof, and then nonsuited because he had not given.it. The exclusion of proof of the contract for re-establishing tiie depot, and the wilful and intended breach of that contract, brings up for our consideration the question principally argued. Such exclusion must rest for its justification upon the theory of the defendant's counsel, already adverted to, which we are troubled to reconcile "with his concession that a cause of action was alleged in the complaint. At the foundation of every tort must lie some violation of a legal duty, and, therefore, some unlawful act or omission. (Cooley on Torts, 60.) Whatever, or however numerous or formidable, may be the allegations of conspiracy, of malice, of oppression, of vindictive purpose, they are of no avail ; they merely heap up epithets, unless the pur- pose intended, or the means by which it was to be accomplished, 6 THE NATUEE OF TORT. [bk. i. are shown to be unlawful. {O'Callaghan v. Cronan, 121 Mass. 114 ; Mohan v. Brown, 13 Wend. 261.) The one separate and distinct unlawful act or omission alleged in this complaint, or rather the only one so separable which we can see may have been unlawful, was the unrbasonable delay in restoring the depot to its original location ; and that was unlawful, not inherently or in itself, but solely by force of the contract with plaintiff. The instigation of the sale on foreclosure, as a separate fact, may have been unkind or even malicious, but cannot be said to have been unlawful. The mortgagee had a perfect right to sell, judicially established, and what it might lawfully do, it was not unlawful to ask it to do. The act of instigating the sale may be material and have force, as one link in a chain of . events, and as serving to explain and characterize an unlawful purpose, pursued by unlawful means; but, in itself, it was not an unlawful act, and cannot serve as the foundation of a tort. \Randall v. Hazelton, 12 Allen, 412.) "We are forced back, there- fore, to the contract for re-establishing the depot and its breach as the basis or foundation of the tort pleaded. If that will not serve the purpose in some manner, by some connection with other acts and conditions, then there was no cause of action for a tort stated in the complaint. We are thus obliged to study the doctrine advanced by the respondent, and measure its range and extent. It rests upon the idea that unless the contract creates a relation, out of which relation springs a duty, inde- pendent of the mere contract obligation, though there may be a breach of the contract, there is no tort, since there is no duty to be violated. And the illustration given is the common case of a contract of affreightment, where, beyond the contract ob- ligation to transport and deliver safely, there is a duty, born of the relation established to do the same thing. In such a case, and in the kindred cases of principal and agent, of lawyer and client, of consignor and factor, the contract establishes a legal relation of trust and confidence ; so that upon a breach of the contract there is not merely a broken promise, but, outside of and beyond that, there is trust betrayed and confidence abused ; there is constructive fraud, or a negligence that operates as such, and it is that fraud and that negligence which, at bottom, makes the breach of contract actionable as a tort. {JOoggs v. CH. I.] EICH V. K Y. C. & H. E. EY. CO. 7 Bernard, 2 Lord Eaym. 909 ; Ormge Bank v. Brown, 3 Wend. 161, 162.) So far we see no reason to disagree with the learned coun- sel for the respondent save in one respect, but that is a very important one. Ending the argument at this point leaves the problem of the case still unsolved. If a cause of action for a tort, as is admitted, was stated in the complaint, it helps us but little- to learn what it was not, and that it does not fall within a certain class of exceptional cases, and cannot be ex- plained by them. We have yet to understand what it is, if it exists at all, as a necessary preliminary to any just apprecia- tion of the relevancy or materiality of the rejected evidence. The General Term, as we have remarked, described the tort pleaded as a " clear case of fraud." If that be true, it cannot depend upon a fiduciary or other character of the relation constituted by the contract merely, for no such relation ex- isted; and there must be some other relation not created by the contract alone, from which sprang the duty which was vio- lated. Let us analyze the tort alleged somewhat more closely. At the date of the contract, the complaint shows the rela- tive situation and needs of the two parties. The railroad com- pany desired to close the draw over the IS'epperhan river, and substitute a solid bridge. With the growth of its business, and the multitude of -its trains, the draw had become a very great evil, and a serious danger. The effort to dispense with it was in itself natural and entirely proper. On the other hand, the plaintiff was both a riparian owner above the draw, and likely to be injured in that ownership by a permanent bridge, and had suffered, and was still suffering, from a severe depreciation in the value of his property near Main street by the previous removal of the railroad station. The defendant was so far master of the situation, that it could and did shut up the plaintiff to a choice of evils. He might insist upon the draw, and leave his mortgaged property to be lost from depre- ciation, and save his riparian rights, or he might surrender the latter to save the former. This last was the alternative which he selected, and the contract of 18T7 was the result. In the making of this contract there was no deceit or fraud, and no legal or actionable wrong on the part of the defendant. 8 > THE NATUEE OE TORT. [bk. i. If it drove a hard bargain, and had the advantage in the negotiation, it at least invaded no legal right of the plaintiff, and he was free to contract or not as he pleased. The com- plaint does not allege that at the execution of this agreement there was any purpose or intention of not fulfilling its terms. The tort, if any, originated later. What remains then is this : The railroad company conceived the idea of closing Main street to any travel where it passed their tracks at grade ; of substituting a bridge crossing in its stead ; and of fencing in its track along the street beneath, so as to compel access to the cars through its depot in such manner that the purchase of tickets could be compelled. This in itself was a perfectly law- ful purpose. The grade crossing was a death-trap, and the interest of the company and the safety of individuals alike made a change desirable, and the closing in of the depot was in no sense reprehensible. But there was a difficulty in the way. The plaintiff again stood as an obstacle in the path. The closing of Main street, though beneficial to the company, was to him and his adjoining property claimed to be a very serious injury. He declined to consent, except upon the con- dition of an award of heavy damages, and in dread of that peril the common council refused to pass the necessary ordi- nance. At this point, according to the allegations of the com- plaint, if at all, or ever, arose the tort. It is alleged that the defendant, in order to reach a lawful result, planned a fraudu- lent scheme for its accomplishment by unlawful means, and through an injury to the plaintiff, which would strip him of his damages by a complete sacrifice of his property. This plan was executed in this manner. The company wilfully and purposely refused to perform its contract. It had built its permanent bridge over the Nepperhan, and so received the full consideration of its promise; its new depot was substan- tially finished and ready for occupation ; and no just reason remained why its contract should not be fulfilled. But the company refused. It did not merely neglect or delay ; it openly and publicly refused. The purpose of that public refusal was apparent. It was to drive the plaintiff's mort- gagee to a foreclosure ; it was to shut out from plaintiff that appreciation of his property which would enable him to save CH. I.] EICH V. N. Y. C. & H. E. EY. CO. 9 it; it was to strip him of it, so as to extinguish the threatened damages, and thus procure the assent of the common council, and get Main street closed. This unlawful refusal to perform the contract, this deliberate announcement of the purpose not to restore the depot, was well calculated to influence the mortgagee toward a foreclosure. But the defendant's direct instigation was added. The foreclosure came ; the mortgagee bid in the property at a sacrifice ; swiftly followed a release of damages, an ordinance of the common council, the closing of Main street,- and then the, restoration of the depot. "We are thus able to see what the tort pleaded was. It was not a constructive fraud, drawn from the violation of a duty imposed by law out of some specific relation of trust and con- fidence, but an actual and affirmative fraud; an alleged scheme to accomplish a lawful purpose by unlawful means. There was here, on the theory of the complaint, something more than a mere breach of contract. That breach was not the tort ; it was only one of the elements which constituted it. Beyond that and outside of that there was said to have existed a fraudulent scheme and device by means of that breach to pro- cure the foreclosure of the mortgage at a particular time and under such circumstances as would make that foreclosure ruinous to the plaintiff's rights, and remove him as an obstacle by causing him to lose his property, and thereby his means of resistance to the purpose ultimately sought. In other words, the necessary theory of the complaint is that a breach of con- tract may be so intended and planned ; so purposely fitted to time, and circumstances and conditions ; so inwoven into a scheme of oppression and fraud ; so made to set in motion in- nocent causes which otherwise would not operate, as to cease to be a mere breach of contract, and become, in its association with the attendant circumstances, a tortious and wrongful act or omission. It may be granted that an omission to perform a contract obligation is never a tort, unless that omission is also an omis- sion of a legal duty. But such legal duty may arise, not merely out of certain relations of trust and confidence, inherent in the nature of the contract itself, as in the cases referred to in the respondent's argument, but may spring from extraneous 10 THE NATURE OF TOET. [bk. i. circumstances, not constituting elements of the contract as sucli although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud. It has been well said that the liability to make reparation for an injury rests not upon the consideration of any reciprocal obligation, but upon an original moral duty enjoined upon every person so to conduct himself, or exercise his own rights as not to injure another. {EerwhaoTcer v. C. G. <& C. B. E. Co., 3 Ohio St. 188.) Whatever its origin, such legal duty is uniformly recog- nized, and has been constantly applied as the foundation of actions for wrongs ; and it rests upon and grows out of the re- lations which men bear to each other in the framework of organized society. It is then doubtless true, that a mere con- tract obligation may establish no relation out of which a separate or specific legal duty arises, and yet extraneous cir- cumstances and conditions, in connection with it, may establish such a relation as to make its performance a legal duty, and its omission a wrong to be redressed. The duty and the tort grow out of the entire range of facts of which the breach of the contract was but one. The whole doctrine is accurately and concisely stated in 1 Chit. PI. 135, that " if a common-law duty result from the facts, the party may be sued in tort for any negligence or misfeasance in the execution of the contract." It is no difficulty that the mortgagee's agreement to give time, and postpone the sale for plaintiff's benefit was invalid, and a mere act of grace which could not have been compelled. If it is made plain that the mortgagee would have waited but for the fraudulent scheme and conduct of the defendant, that is enough. {Benton v. Pratt, 2 Wend. 385 ; Bice v. Manley, 66 N. Y. 83.) Nor is it a difficulty that the injury suffered was the result of a series of acts some of which were lawful and innocent. (Cooley on Torts, 70; Bebinger v. Sweet, 1 Abb. E". 0. 263.) Assuming now that we correctly understand what the tort pleaded was, and which was conceded to constitute a cause of action, it seems to us quite clear that the plaintiff was im- properly barred from proving it. From the very nature of the CH. 1.] RICH V. K Y. C. & H. E. RY. CO. Tl case a fraud can seldom be proved directly, and almost uni- formly is an inference from the character of the whole trans- action, and the surrounding and attendant circumstances. Proof of the contract and its breach, of the delay in restoring the depot and the reasons therefor, were essential links in the chain. If the proof should go no further, a nonsuit would be proper, but without these elements the tort alleged could not be established at all. And so the situation of the parties as it respected their several properties, the existence of the mort- gage,' the agreement to postpone the sale, were elements of the transaction proper to be shown. The plaintiff's interview with the officei's of the defendant company, and their state- ment of the reasons for refusing to restore the depot were improperly excluded. While we cannot know what it was which actually occurred, it is very plain that their statement of reasons would bear materially upon the issues involved. "We are not concerned with the question of the wisdom of the plaintiff's choice of his form of action, or of what may result if the cause of action pleaded as a tort shall be hereafter assailed instead of its sufficiency being conceded. It may well be that he has chosen the one most difficult to maintain, and that an action upon one or more of the contracts would be less surrounded by difficulties. But we have nothing to do with his choice. He is entitled to prove his cause of action if he c^n. The judgment should be reversed, and a new trial granted, costs to abide the event. All concur, except Eapallo and Millee, JJ., not voting. Judgment reversed} 1 Cf. Dawe v. Morris, 149 Mass. 188, where the plaintiff alleged that defendant, In order to Induce the former to make a contract with a railroad company to build a section of its road, falsely represented that he and another had bought enough rails at a certain price to build it, and that if plaintiff would enter into the contract, they would sell these rails to him at the same price : that plaintiff relying on these representations entered into the contract : that defendant had not purchased the rails, and did not sell, and did not intend to sell the rails to plaintiff. Held, that plaintiff's cause of action was for breach of contract and not for tort. Hutohins y. Hutchins, 7 Hill, lOi, illustrates the proposition in the prin- 12 PRINCIPLES OP LIABILITY. [bk. i. CHAPTEK II. PRINCIPLES OF LIABILITY. Tatloe v. L. S. & M. S. E. Co. (45Mich. 74. — 1881.) Eekoe to superior court of Detroit. Oriffin and Dickinson and Henry M. Campbell for plaintiff in error. Ashley Pond for defendant in error. CooLEY, J. The plaintiff sues the railroad company to re- cover compensation for injury suffered by her in consequence of slipping and falling upon ice which had formed on a side- walk in front of premises occupied by the defendant in the city of Monroe, and which the defendant had failed to remove as required by law. It is not claimed that any such action would lie at the common law, and the right of recovery is supposed to arise from certain state and municipal legislation. The state legislation in question is the general act for the incorporation of cities, passed in 1873, under which the city of Monroe is now organized. Chapter 12 of this act relates to the sidewalks. Section 1 gives the city council control of all cipal case that " at the foundation of every tort must be some unlawful act or omission." Here the defendants, by false representations concerning the plaintiff, induced a third party to revoke his will, devising valuable prop- erty to plaintiff, and to execute another, depriving him of all the benefits which would have accrued under the first will. Yet it was held that the plaintiff had sustained no legal harm — he had no legal Interest in the prop- erty mentioned in the first will — nothing but a mere naked possibility " which is altogether too shadowy and evanescent to be dealt with by courts of law." CH. II.] TAYLOE V. L. S. & M. S. E. CO. 13 sidewalks, with power to construct and maintain the same and charge the expense thereof upon the lots and premises adjacent to and abutting upon such walks. Section 2 empowers the council to require the owners and occupants of adjacent lots to construct and maintain sidewalks, and section 3 is as fol- lows : " The council shall also have power to cause and require the owners and occupants of any lot or premises to remove all snow and ice from the sidewalks in front of or adjacent to such lot or premises and to keep the same free from obstruc- tions, encroachments, filth and other nuisances." Section 4 provides that if any owner or occupant shall fail to perform any duty required by the council in respect to side- walks, the council may cause the same to be performed, and levy a special assessment to meet the expenses on the lot or premises adjacent to and abutting on the sidewalk. Section 6 is as follows : " If any owner, occupant or person in charge of any lot or premises, shall neglect to repair any sidewalk in front of or adjacent to such premises, or to remove any snow or ice therefrom, or to keep the same free from obstructions and encumbrances, in accordance with the require- ments of the ordinances and regulations of the council, he shall be liable to the city for the amount of all damages which "shall be recovered against the city for any accident or injury occurring by reason of such neglect." (Gen. Laws, 1873, pp. 244, 325, 326.) Acting under the authority conferred by this act, the city council adopted an ordinance whereby it was provided that the owner or occupant of any house or building, or person entitled to the possession of any vacant lot, or person in charge of any church, or other public building, or any street, alley or public space, shall not permit the sidewalk and gutter adjoin- ing the same to be obstructed by snow, ice, filth, dirt or other encumbrance, and when ice is formed on any sidewalk and gutter, such owners, occupants or persons having charge, or entitled to possession of property adjoining, as above provided, shall within twenty-four hours after the same has formed remove the same or cause sand, sawdust or ashes to be strewn thereon. The defendant, it is alleged, failed to remove within twenty- 14 PEINCIPLES OF LIABILITY. [bk. i. four hours, as required by this ordinance, the ice which had formed on the sidewalk in front of its premises, and the plaintiff sustained a severe injury by slipping and falling thereon. It is said on behalf of the plaintiff that the obligation to keep the sidewalks free from snow and ice is imposed as a duty to all persons who may have occasion to use the walks in passing and repassing, and that the neglect to do so, in consequence of which any one lawfully using the walk is injured, is a neglect of duty to him, and entitles him on well-recognized principles to maintain an action. {Crouch v. Steele, 3 Ex. K. 402 ; Aldrich V. Howard, 7 R. I. 214.) To maintain this proposition it is necessary to make it appear that the duty imposed was a duty to individuals rather than a duty to the whole public of the city ; for if it was only a pub- lic duty, it cannot be pretended that a private action can be maintained for a breach thereof. A breach of public duty must be punished in some form of public prosecution, and not by w^ay of individual recovery of damages. ITevertheless the bur- den that individuals are required to bear for the public protec- tion or benefit may in part be imposed for the protection or benefit of some particular individual or class of individuals also, and then there may be an individual right of action as well as a public prosecution if a breach of the duty causes individual injury. {Atkinson v. Water Works Co., 6 Exch. 404.) The nature of the duty and the benefits to be accomplished through its performance must generally determine whether it is a duty to the public in part or exclusively, or whether indi- viduals may claim that it is a duty imposed wholly or in part for their especial benefit. In this case the duty was to keep the sidewalks free from obstructions. It will not be claimed that this was not a duty to the whole public of the city, and the disputed question is whether it is also a duty to each indi- vidual making use of the walks. An obstruction by snow or ice may make the use of a walk dangerous, or may wholly pre- clude its use for the purpose for which walks are constructed. If the duty to keep the walk free from obstructions is a duty to individual travellers desiring to use it, it is as much broken when the walk is wholly obstructed as when it is capable of CH. II.] TAYLOE V. L. S. & M. S. R. CO. 15 use but is dangerous, and an action will as much lie by one wlio is compelled to go around an obstruction, as by one who slips and falls in a dangerous place. Moreover, as the lot owner is required to keep the walk free from all nuisances, an individual traveller who can maintain the proposition that this is a duty to him must be entitled to bring suit wherever the existence of a nuisance diminishes either the comfort or the safety of the use of the walk by him. This view of the obligation of the lot owner would add greatly to his common-law liabilities, and it is not easy to draw tlie lines which should definitely limit and confine his liabilities. • But if we look a little further into the statute under which the city is incorporated, we shall see that all its provisions re- specting sidewalks, so far as they impose duties upon the owners of adjoining or abutting lots, have one common object, to pro- vide suitable and safe passage-ways for foot passengers by the side of the public streets, and to keep these in condition for safe use. The expense of such ways is imposed on the owners of adjacent lots, and these owners must keep them free from en- croachments. Will it be claimed that if the city council shall require a lot owner to construct a sidewalk in front of his premises, and he should fail to obey the requirement, every person who should come upon the street desiring to pass on foot where the walk should be, and who shall be precluded from doing so by the walk not being constructed, may bring suit against the lot owner for the neglect to build it as a neglect of duty to the traveller himself ? He is damnified in that case as clearly as when he falls upoa a dangerous walk and is hurt ; though the damage may perhaps be insignificant. But it is clear, we think, that the duty to build the walk is only a public duty, and the duty to keep it in condition for use is also a public duty. Exactly what force is to be given to the provision of statute that the lot owner shall be liable to the city for all damages which the city may be compelled to pay for his default, we need not consider in this suit. It is enough. to say here that an action grounded on that particular provision of the statute could only arise after the city had been rendered liable in a suit against it. If the statute contemplated public duties only, the city ordinance could not go further and give 16 BREACH OF STATUTORY DUTY. [bk. i. individual rights of action. But neither, we think, has it at- tempted to do. The judgment of the Circuit Court must sta/nd affirmed with costs. The other justices concurred. BREACH OF STATUTORY DUTY. Paekee v. Baenaed and Othees. (135Mass. 116. — 1883.) ToET, against the owners and occupants of a building in Boston, for personal injuries sustained by the plaintiff therein. Trial, in this court, without a jury, before Field, J., who found for the defendants, and reported the case for the con- sideration of tlie full court. The facts appear in the opinion. F. Peabody, Jr. {C. A. Prince with him), for the plaintiff. A. T. Sinclair for one of the defendants. A. Buss {O. A. A. Pevey and H. H. Sprague with him) for the other defendants. Devens, J. The plaintiflF was a police officer of the city of Boston, acting under a rule regularly passed by the police commissioners, which made it his duty to examine in the night- time the doors and windows of dwellings and stores, to see that they were properly secured, and to give notice to the inmates, or, if such buildings were unoccupied, to make fast the doors and windows found open. He crossed the threshold of the elevator entrance of the building, of which the defend- ants were owners or occupants, the doors of which were open, for the purpose of making an examination, thinking it was the entrance to the upper stories, in order that he might be in from the air and there light his candle, and was precipitated down the well of the elevator, which was unguarded, receiv- CH. II.] PARKER V. BARNARD AND OTHERS. 17 ing injury thereby. It is found by the report that he entered with the honest belief " that there might be something wrong being done in the building, and with the honest purpose of arresting offenders, if he found any, or of securing the doors for the safety of the property of the occupants." " It is a very ancient rule of the common law," says Chief Justice Gray, " that an entry upon land to save goods which are in jeopardy of being lost or destroyed by water, fire or other like danger, is not a trespass." {Proctor v. Adams, 113 Mass. 376.) As individuals may thus enter upon the land of another, firemen may do so for the protection of property, officers of the law for similar purposes, and, under proper cir- cumstances, for the arrest of offenders or the execution of criminal process. The right to do this may be in limitation of the more general right of property which the owner has, but it is for his protection and that of the public. {Metallic Compression Casting Co. v. Fitchburg Railroad, 109 Mass. 277, 280 ; Hyde Park v. Oay, 120 Mass. 589, 593 ; Common- wealth V. Tohin, 108 Mass. 426 ; Commonwealth v. Reynolds, 120 Mass. 190 ; Barnard v. Bartlett, 10 Gush. 501.) When doors are left open in the night-time under such cir- cumstances that property is unprotected, it is a reasonable police regulation which permits an officer to enter in order to warn the inmates of the house, or to close and fasten the doors, and a license so to do is fairly implied, which, at least, should shield him from being treated as a trespasser. But, if the plaintiff was a licensee, it is contended that he was no more than this; that, if lawfully upon the premises, he was there at his own risk ; and that none of the defendants were under any obligations toward him to keep this entrance of the building in a safe condition. It is certainly well set- tled that by the common law, no duty is imposed on the owner pr occupant of premises to keep them in a suitable condition for those who come upon them solely for their own conven- ience or pleasure, and who have not been either expressly invited to enter, or induced to come by the purpose for which the premises are appropriated, or by some preparation or adap- tation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they 2 18 BREACH OF STATUTORY DUTY. [bk. i. might safely and properly enter thereon. "WhSre no such prep- aration is made, or express or implied invitation extended, and the entry of the licensee is permissive only, there can ordinarily be no recovery for a neglect properly to guard the premises by which such person may be injured. {Sweeny v. Old Colony (& Newport Railroad, 10 Allen, 368, 373 ; Severy v. Nioherson, 120 Mass. 306.) If this be conceded, it is still to be determined in the case at bar whether, when there is evidence which tends to show that the injury proceeded from the neglect of an obligation im- posed upon the defendants by statute, the protection intended to be afforded by means of such a statute is not for the benefit of all those who are upon the premises in the performance of lawful duties, even if they are but licensees, as well as for the benefit of those who are there by inducement or invitation, express or implied, and thus whether such neglect may not be made the foundation of an action. The St. of 1872, c. 260, is entitled "An act in addition to an act to provide for the regulation and inspection of build- ings, the more effectual prevention of fire, and the better preservation of life and property in Boston." Section 5 is as follows : " In any store or building in Boston, in which there shall exist or be placed any hoistway, elevator or well-hole, the openings thereof through and upon each floor of the said building shall be provided with and protected by a good and substantial railing, and such good and sufficient trap-doors with which to close the same, as may be directed and approved by the inspector of buildings ; and such trap-doors shall be kept closed at all times except when in actual use by the occu- pant or occupants of the building having the use and control of the same. For any neglect or violation of the provisions of this section, a penalty not exceeding one hundred dollars for each and every offence may be imposed upon the owner,, lessee or occupant of said building." The owner or occupant of land or a building is not liable, at common law, for obstructions, pitfalls or other dangers there existing, as, in the absence of any inducement or invitation to others to enter, he may use his property as he pleases. But he holds his property " subject to such reasonable control and CH. II.] PARKER V. BARNARD AND OTHERS. 19 regulation of the mode of keeping and use as the legislature, under the police power vested in them by the constitution of the Commonwealth, may think necessary for the preventing of injuries to the rights of others and the security of the pub- lic health and welfare." {Blair v. Forehomd, 100 Mass. 136.) "When, therefore, in the construction or management of a building, the legislature sees fit to direct by statute that cer- tain precautions shall be taken, or certain guards against danger provided, his unrestricted use of his property is right- fully controlled, and those who enter in the performance of a lawful duty, and are injured by the neglect of the party re- sponsible, have just ground of action against him. Were the case at bar that of a fireman, who, for the purpose of saving the property in the store, or for the prevention of the spread of the fire to other buildings, lawfully entered in the perform- ance of his duties, and who was injured because there were no railing and trap-doors guarding the elevator well, he would have just ground of complaint that the protection which the statute has made it the duty of the owners or occupants to provide had not been afforded him. The act is not to be limited in its operation to the protection of firemen. " There is no rule," says Mr. Justice Morton, " better settled, than that the title of an act does not constitute a part of the act." {Charles River Bridge v. Warren Bridge, 7 Pick. 344, 455.) But, if the title were of importance, the object of the act is asserted to be " the better preservation of life and property," as well as " the more effectual prevention of fire." The case of an officer, who, with lawful process to justify it, enters to make an arrest, or that of one who enters lawfully to protect property, does not differ in principle from that of the fireman which we have considered. Like him, they are within the building in lawful performance of their duty. Even if they must encounter the danger arising from neglect of such pre- cautions against obstructions and pitfalls as those invited or induced to enter have a right to expect, they may .demand, as against the owners or occupants, that they observe the statute in the construction and management of their building. The fact that there was a penalty imposed by the statute for neglect of duty in regard to the railing and protection of 20 BREACH OF STATUTORY DUTY. [bk. i. the elevator well does not exonerate those responsible therefor from such liability. The case of Kirhy v. Boylston Market, 14 Gray, 249, cited by one of the defendants, does not decide otherwise. It holds only that an ordinance of the city of Bos- ton, requiring abutters, under a penalty, to clear their side- walks from snow and ice, still left the remedy, under the St. of 1850, c. 6, § 1, for all damages sustained by an accumulation of snow and ice, exclusively against the inhabitants of the city in their corporate capacity. As a general rule, where an act is enjoined or forbidden under a statutory penalty, and the failure to do the act en- joined or the doing of the act forbidden has contributed to an injury, the party thus in default is liable therefor to the party injured, notwithstanding he may also be subject to a penalty. {Kidder v. Dunstable, 11 Gray, 342; Salisbury v. Herchen- roder, 106 Mass. 458 ; Hyde ParJc v. Gay, ubi supra.) "We have not considered the respective duties of the owners and of the occupants of the building as to the protection of the elevator well. Upon this inquiry, the case is not before us, and the facts are not reported. New trial ordered. Hates v. Mich. C. R. Co. (Ill tr. S. 228. — 1884.) This action was brought by the plaintiff in error to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in error. After the evidence in the cause had been closed, the court directed the jury to return a verdict for the defendant. A bill of exceptions to that ruling embodied all the circumstances material to the case, and presented the question upon this writ of error, whether there was sufficient evidence to entitle the plaintiff below to have the issues submitted to the determination of the jury. • The defendant in running its trains into Chicago, used the tracks of the Illinois Central Railroad Company, under an arrangement between them ; and no question was made but CH. II.] HAYES V. MICH. C. E. CO. 21 that the defendant is to be treated, for the purposes of this case, as the owner as well as occupier of the tracks. The tracks in question were situated for a considerable dis- tance in Chicago, including the place where the injury com- plained of was received, on the lake shore. They were built in fact, at 13rst, in the water on piles ; a breakwater, con- structed in the lake, protecting them from winds and waves, and on the west or land side, the space being filled in with earth, a width of about 280 feet, to Michigan avenue, running parallel with the railroad. This space between Michigan avenue and the railroad tracks was public ground, called Lake Park, on the south end of which was Park row, a street perpendicular to Michigan avenue, and leading to and across the railroad tracks, to the water's edge. Numerous streets, from Twelfth street north to Eandolph street, intersected Michigan avenue at right angles, about 400 feet apart, and opened upon the park, but did not cross it. Nothing divided Michigan avenue from the park, and the two together formed one open space to the railroad. The right of way for these tracks was granted to the com- pany by the city of Chicago, over public grounds, by an ordinance of the common council, dated June 14, 1852, the 6th section of which was as follows : " Sec. 6. The said company shall erect and maintain on the western or inner line of the ground pointed out for its main track on the lake shore, as the same is hereinbefore defined, such suitable walls, fences or other sufficient works as will prevent animals from straying upon or obstructing its tracks and secure persons and property from danger, said structure to be of suitable materials and sightly appearance, and of such height as the common council may direct, and no change therein shall be made except by mutual consent ; provided, however, that the company shall construct such suitable gates at proper places, at the ends of the streets which are now or may hereafter be laid out, as may be required by the common council to afford safe access to the lake; and provided, also, that in case of the construction of an outside harbor, streets may be laid out to approach the same, in the manner provided by law, in which case the common council may regulate the speed of locomotives and trains across them." 22 BREACH OF STATUTOEY DUTY. [bk. i. It was also provided in the ordinance, that it should be accepted by the railroad company within ninety days from its passage, and that thereupon a contract under seal should be formally executed on both parts, embodying the provisions of the ordinance and stipulating that the permission, rights and privileges thereby conferred upon the company should depend upon their performance of its requirements. This contract was duly executed and delivered March 28, 1853. The work of filling in the open space between the railroad tracks and the natural shore line was done gradually, more rapidly after the great fire of October 9, 1871, when the space was used for the deposit of the debris and ruins of build- ings, and the work was completed substantially in the winter of 18T7-8. In the meantime several railroad tracks had been constructed by the railroad company on its right of way, used by itself and four other companies for five years prior to the time of the injury complained of, and trains and locomotives were passing very frequently, almost constantly. The railroad company had also partially filled with stones and earth the space east of its tracks, to the breakwater, sufiiciently so in some places to enable people to get out to it. This they were accustomed to do, for the purpose of fishing and other amusements, crossing the tracks for that purpose. At one point there was a roadway across the park and the tracks, used by wagons for hauling materials for filling up the space, and a flagman was stationed there. At this point great numbers of people crossed to the breakwater; from two streets, the public were also accustomed to cross over the tracks from the parks to the ferry boats. From Park row, at the south end of the park, running north a short distance, the railroad company, in 1 872, had erected on the west line of its right of way a five-board fence, the north end of which at the time of the injury to the plaintiff was broken down. The rest of it was in good order. The park was public ground, free to all, and frequented by children and others as a place of resort for recreation, espe- cially on Sundays. Not far from the south end, and about opposite the end of the fence, was a band-house for free open- air concerts. CH. II.] HAYES V. MICH. C. E. CO. 23 The plaintiff was a boy between eight and nine years of age, bright and well-grown, but deaf and dumb. His parents were laboring people, living, at the time of the accident, about four blocks west of Lake Park. Across the street from where they lived was a vacant lot where children in the neighbor- hood frequently played. On Sunday afternoon, March 17, 1878, St. Patrick's Day, the plaintiff, in charge of a brother about two years older, went to this vacant lot, with the per- mission of his father, to play ; while playing there, a proces- sion celebrating the day passed by, and the plaintiff, with other boys, but without the observation of his brother, fol- lowed the procession to Michigan avenue at Twelfth street, just south of Lake Park ; he and his companions then re- turned north to the park, in which they stopped to play; a witness, going north along and on the west side of the tracks, when at a point a considerable distance north of the end of the broken fence, saw a freight train of the defendant coming north; turning round toward it he saw the plaintiff on the track south of him, but north of the end of the fence; he also saw a colored boy on the ladder on the side of one of the cars of the train motioning as if he wanted the plaintiff to come along ; the plaintiff started to run north beside the train, and as he did so, turned and fell, one or more wheels of the car passing over his arm. There were four tracks at this point, and the train was on the third track from the park. The plaintiff had his hands reached out towards the car, as he ran, as if he was reaching after it, and seemed to the witness to be drawn around by the draft of the train, and fall on his back. Amputation of the left arm at the shoulder was rendered necessary, and constituted the injury for which damages were claimed in this suit. After the evidence in the case had been closed, the court instructed the jury to find a verdict for the defendant, to which ruling the plaintiff excepted. Judgment was entered on the verdict and the plaintiff sued out this writ of error. Mr. A. D. Rich, Mr. Oeorge C. Fry and Mr. J. W. Mer-< riam for plaintiff in error submitted on their brief. Mr. Ashley Pond for defendant in error. 24 BREACH OF STATUTORY DUTY. [bk. i. Mr. Justice Matthews delivered the opinion of the court. He stated the facts in the foregoing language and continued : ***** The particular negligence charged in the declaration and re- lied on in argument, is the omission of the railroad company to build a fence on the west line of its right of way, dividing it from Lake Park ; a duty, it is alleged, imposed upon it by the ordinance of June 14, 1852, a breach of which resulting in his injury, confers on the plaintifif a right of action for damages. It is not claimed on the part of the plaintiff in error that the railroad company was under an obligation, at common law, to fence its tracks generally, but that, at common law, the question is always whether, under the circumstances of the particular case, the railroad has been constructed or operated with such reasonable precautions for the safety of others, not in fault, as is required by the maxim sic utere tuo ut non alienum Icedas ; that, consequently, in circumstances whei'e the public safety requires such a precaution as a fence, to prevent danger from the ordinary operations of the rail- road, to strangers not themselves in fault, the omission of it is negligence ; and that it is a question of fact for a jury, whether the circumstances exist which create such a duty. This principle has been recognized and applied in cases of collisions at crossings of railroads and public highways, when injuries have occurred to persons necessarily passing upon and across railroad tracks in the use of an ordinary highway. "These cases," said the Supreme Court of Massachusetts in Eaton V. FitcKburg Railroad Company, 129 Mass. 364, "all rest on the common-law rule that when there are different pub- lic easements to be enjoyed by two parties at the same time and in the same place, each must use his privilege with due care, so as not to injure the other. The rule applies to grade crossings, because the traveller and the railroad each has com- mon rights in the highway at these points. The fact that the legislature has seen fit, for the additional safety of travellers, imperatively to require the corporation to give certain warnings at such crossings, does not relieve it from the duty of doing whatever else may be reasonably necessary." It was accord- CH. II.] HAYES V. MICH. C. R. CO. 25 ingly held in that case, that the jury might properly consider, whether, under all circumstances, the defendant was guilty of negligence in not having a gate or a flagman at the crossing, although not expressly required to do so by any statute or public authority invested with discretionary powers to estab- lish such regulations. And the same principle has been applied in other cases than those of the actual coincidence, at crossings of public high- ways. In Barnes v. Ward, 9 C. B. 392, it was decided, after much consideration, that the proprieter and occupier of land making an excavation on his own land, but adjoining a public highway, rendering the way unsafe to those who used it with ordinary care, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road, and liable to an action for damages to one injured by reason thereof ; for the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway. This doctrine has always since been recognized in England. {Hard- castle V. South Yorkshire Ry. Co., 4 Hurl. & Nor. 67; Houn- sell V. Smyth, 7 C. B. N. S. 731 ; Binks v. South Yorkshire By. Co., 3 B. & S. 244.) It has also been generally adopted in this country {Norwich V. Breed, 30 Conn. 535 ; Beck v. Carter, 68 IST. Y. 283 ; RomMn V. Stanley, 66 Penn. St. 464 ; B. & 0. R. R. Co. v. Boteler, 38 Md. 568; Stratton v. Staples, 59 Me. 94 ; Young \. Harvey, 16 Ind. Z14:; Coggswell v. Inhabitants of Lexington, 4: Cush. 307) ; although Howland v. Vincent, 10 Mete. 371, is an excep- tion. The enforcement of this rule in regard to excavations made by proprietors of lots adjacent to streets and public grounds in cities and towns, in the prosecution of building enterprises, and in the construction of permanent area for cellar ways, is universally recognized as an obvious and salutary exercise of the common police powers of municipal government ; and the omission to provide barriers and signals, prescribed by ordi- nance in such cases for the safety of individuals in the use of thoroughfares, is a failure of duty, charged with all the conse- 26 BREACH OF STATUTOEY DUTY. [bk. i. quences of negligence, including that of liability for personal injuries of which it is the responsible cause. The true test is, as said by Hoar, J., in Alger v. City of Lowell, 3 Allen, 402, " not whether the dangerous place is outside of the way, or whether some small slip of ground not included in the way must be traversed in reaching the danger, but whether there is such a risk of a traveller, using ordinary care in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient." As the ground of liabilty in these cases is that of a public nuisance, causing special injury, the rule, of course, does not apply where the structure complained of on the defendant's property, and the mode of its use, are authorized by law ; and consequently, what has been said is not supposed to bear directly and strictly on the question in the present case, but rather as inducement, showing the ground of legislative au- thority implied iu the ordinance, the breach of which is im- puted to the defendant as negligence towards the plaintiff, and as serving to interpret the meaning and application of its provisions. The ordinance cannot, we think, be treated as a mere con- tract between the city, as proprietor of the land over which the right of way is granted, and the railroad company, to which no one else is privy, and under which no third person can derive immediately any private right, prescribing con- ditions of the grant, to be enforced only by the cxtj itself. Although it takes the form of a contract, provides for its acceptance and contemplates a written agreement in execu- tion of it, it is also and primarily a municipal regulation, and as such, being duly authorized by the legislative power of the State, has the force of law within the limits of the citv. {Mason v. 8hawneetown, 77 111. 533.) Neither can the ordinance be limited by construction to the mere purpose of preventing animals from straying upon or ob- structing the railroad tracks ; because, in addition to that, it expressly declares that the walls, fences or other works re- quired sliall be suitable and sufficient to secure persons and property from danger. This cannot refer to persons and CH. II.] HAYES V. MICH. C. E. CO. 27 property in course of transportation and already in care of the railroad company as common carrier, for the duty to carry and deliver them safely was already and otherwise provided for by law ; nor, can it be supposed, from the nature of the case, that the stipulation was intended as security for any corporate interest of the city. The proviso in the 6th section, that the company shall construct such suitable gates at cross- ings as thereafter might be required by the common council to afford safe access to the lake, clearly designates the inhabi- tants of the city as at least within the scope of this foresight and care, the safety of whose persons and property was in contemplation. The prevention of animals from straying upon the tracks, and the security of persons and property from danger, are two distinct objects, for both which the requirement is made of suitable walls, fences or other protections ; and the ordinance in these two particulars, is to be referred to distinct legislative grants of power to the municipal body. The general act to provide for the incorporation of cities and villages which con- stitutes the charter of the citj?- of Chicago, confers upon its city council power : " Twenty-sixth. To require railroad com- panies to fence their respective railroads, or any portion of the same, and to construct cattle guards, crossings of streets, and public roads, and keep the same in repair, within the limits of the corporation. In case any railroad company shall fail to comply with any such ordinance, it shall be liable for all dam- ages the owner of any cattle or horses or other domestic animal may sustain, by reason of injuries thereto while on the track of such railroad, in like manner and extent as under the general laws of this State, relative to the fencing of railroads." (Gothran's Eev. Stat. 111. 1884, 227.) By the general law of the State, requiring railroads to be fenced, except within the limits of municipal corporations, the company omitting per- formance of the duty is liable to the owner for all damages to animals, irrespective of the question of negligence. (Gothran's Eev. Stat. 111. 1884, 1151.) Whether this provision is limited to the protection of ani- mals, and covers only the case of damage done to them, or whether a failure to comply with the ordinance authorized 28 BEEACH OF STATUTORY DUTY. [bk. i. thereby might be considered as evidence of negligence, in case of injury to person or property, in any other case, it is not necessary for us now to decide ; for in the same section of the statute there is this additional power conferred upon the city council: "Twenty-seventh. To require railroad companies to keep flagmen at railroad crossings of streets, and provide protection against injury to persons and property in the use of such railroads," etc. The latter clause of this provision is general and unrestricted. It confers plenary power over railroads within the corporate limits, in order that by such requirements as in its discretion it may prescribe, and as are within the just limits of police regulation, the municipal authority may provide protection against injury to persons and property likely to arise from the use of railroads. And as we have shown by reference to analogous cases, the erection of a barrier between the railroad tracks and the public highways and grounds, particularly such a resort as the Lake Park is shown to be, in the present case, is a reasonable provision, clearly within the limits of such author- ity. To leave the space between the park and the breakwater, traversed by the numerous tracks of the railroad company, open and free, under the circumstances in proof, was a constant invitation to crowds of men, women and children frequenting the park to push across the tracks at all points to the break- water, for recreation and amusement, at the risk of being run down by constantly passing trains. A fence upon the line between them might have served, at least, as notice and signal of danger, if not as an obstacle and prevention. For j'oung children, for whose health and recreation the park is presumably in part intended, and as irresponsible in many cases as the dumb cattle, for whom a fence is admitted to be some protec- tion, such an impediment to straying might prove of value and importance. The object to be attained — the security of the persons of the people of the city — was, we think, clearly within the design of the statute and the ordinance ; and the means required by the latter to be adopted by the railroad company was appropriate and legitimate. {Mayor, etc., of New Torh v. Williams, 15 N. Y. 502.) It is said, however, that it does not follow that whenever a CH. II.] HAYES V. MICH. C. E. CO. 29 statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty can maintain an action for damages against the person on whom the duty is imposed ; and we are referred to the case of Atkin- son V. Newcastle Water Worhs Co., L. K. 2 Exch. Div. 441, as authority for that proposition, quahfying as it does the broad doctrine stated by Lord Campbell in Gouch v. Steel, 3 E. «fe B. 402. But accepting the more limited doctrine admitted in the language of Lord Cairns in the case cited, that whether such an action can be maintained must depend on the " purview of the legislature in the particular statute, and the language which they have there employed," we think the right to sue, under the circumstances of the present case, clearly within its limits. In the analogous case of fences required by the statute as a pro- tection for animals, an action is given to the owners for the loss caused by the breach of the duty. And although in the case of injury to persons by reason of the same default, the failure to fence is not, as in the case of animals, conclusive of the lia- bility, irrespective of negligence, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence. The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery. " The nature of the duty," said Judge Cooley in Taylor v. L. S. c& M. S. R. Company, 45 Mich. 74, " and the benefits to be accompMshed through its performance, must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit." (See, also. Railroad Company v. Terhune, 50 111. 151 ; Schmidt V. The Milwaukee & St. Paul Railway Company, 23 Wise. 186 ; Siemers v. Eisen, 54 Cal. 418 ; Galena & Chicago Union Rail- road Company v. Loomis, 13 111. 548 ; O.AM. Railroad Com- pany V. McClelland, 25 111. 140 ; St. L. Y. (& T. H. Railroad Company v. Dunn, 78 111. 197 ; Massoth v. Delaware & Hudson Canal Gompa/ny, 64 IST. Y. 521 ; B.&O. Railroad Company v. State, 29 Md. 252; Pollock v. Eastern Railroad Company, 124 Mass. 158 ; Cooley on Torts, 657.) 30 BEEACH OF STATUTORY DUTY. [bk. i. It is said, however, that, in the present case, the failure or omission to construct a fence or wall cannot be alleged as neg- ligence against the company, because, as the structure was to be, as described in the ordinance, of suitable materials and sightly appearance, and of such height as the common council might direct, no duty could arise until after the council had directed the character of the work to be constructed, of which no proof was offered. But the obligation of the company was not conditioned on any previous directions to be given by the city council. It was absolute, to build a suitable wall, fence or other sufficient work as would prevent animals from stray- ing upon the tracks and secure persons and property from danger. The right of the council was to give specific directions if it saw proper, and to supervise the work when done, if necessary; but it was matter of discretion, and they were not required to act in the first instance, nor at all, if they were satisfied with the work as executed by the railroad company. {Tall'man v. Syracuse, Binghamton di JV. Y. Railroad Com- pa/ny, 4 Keyes, 128; BrooTdyn v. BrooTdyn City Railroad Company, 47 N". Y. 4-75.) It is further argued that the direction of the court below was right, because the want of a fence could not reasonably be al- leged as the cause of the injury. In the sense of an efficient cause, causa causans, this is no doubt strictly true ; but that is not the sense in which the law uses the term in this connection. The question is, was it causa sine qua nan, a cause which if it had not existed, the injury would not have taken place, an occasional cause? and that is a question of fact, unless the causal connection is evidently not proximate. {Milwaukee db St. Paul Railroad Company v. Kellogg, 94 U. S. 469.) The rule laid down by Willes, J., in Daniel v. Metropolitan Rail- way Company, L. E. 3 C. P. 216, 222, and approved by the Exchequer Chamber, L. K. 3 0. P. 591, and by the House of Lords, L. E. 6 H. L. 45, was this : " It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendants might and ought to have resorted to;" and in the case of Williams v. Great Western Railway Compamy, CH. II.] BISHOP V. WEBEE. 31 L. E. 9 Excheq. 157, where the rule was applied to a case similar to the present, it was said (p. 162) : " There are many supposable circumstances under which the accident may have happened, and which would connect the accident with the neglect. If the child was merely wandering about and he had met with a stile, he would probably have been turned back; and one at least of the objects for which a gate or stile is re- quired, is to warn people of what is before them and to make them pause before reaching a dangerous place like a railroad." The evidence of the circumstances showing negligence on the part of the defendant, which may have been the legal cause of the injury to the plaintiff, according to the rule established in Railroad Company v. Stout, 17 "Wall. 657, and Randall v. B. db 0. Railroad Company, 109 U. S. 478, should have been submitted to the jury ; and for the error of the Circuit Court in directing a verdict for the defendant. The judgment is reversed and a neio trial awarded} ASSUMPTION OF SKILL. Bishop v. Webee. (139 Mass. 411. — 1885.) ToET. "Writ dated October 29, 1883. The declaration as originally filled contained two counts. On May 19, 1884, a demurrer to the declaration was sustained, and no exception or appeal was taken. At the same term, the declaration was amended by adding a third count, and by inserting certain words in the first and second count. The plaintiff had also leave to amend her writ by adding after the word " tort" the words "or contract, the plaintiff being doubtful to which class of actions this action belongs." The Superior Court sustained the demurrer and ordered judg- ment for the defendant ; and the plaintiff appealed to this court. ^ Milnes v. Mayor & Co., Huddersfleld, 11 App. Cas. 511; Knight v. N. T. L. E. & W. Ey. Co., 99 N. Y. 25. 32 ASSUMPTION OF SKILL. [bk. i. J. D. Bryant for the defendant. B. G. Moulton for the plaintiff. C. Allen, J. If one who holds himself out to the public as a caterer, skilled in providing and preparing food for enter- tainments, is employed as such, by those who arrange for an entertainment, to furnish food and drink for all who may attend it, and if he undertakes to perform the service accord- ingly, he stands in such a relation of duty towards a person who lawfully attends the entertainment, and partakes of the food furnished by him, as to be liable to an action of tort for negligence in furnishing unwholesome food, whereby such per- son is injured. This liability does not rest so much upon an implied contract, as upon a violated or neglected duty volun- tarily assumed. Indeed, where the guests are entertained without pay, it would be hard to establish an implied contract with each individual. The duty, however, arises from the re- lation of the caterer to the guests. The latter may have a right to assume that he will furnish for their consumption pro- visions which are not unwholesome and injurious through any neglect on his part. The furnishing of provisions which endanger human life or health stands clearly upon the same ground as the administering of improper medicines, from which a liability springs irrespective of any question of privity of contract between the parties. (Norton v. Sewall, 106 Mass. 143 ; Longmeid v. HolUday, 6 Exch. 761 ; Pippin v. Sheppard, 11 Price, 400.) The plaintiff's action was originally entitled " in an action of tort." The plaintiff obtained leave to amend by adding the words " or contract, the plaintiff being doubtful to which class of actions this action belongs." This amendment was unnecessary, and may be disregarded, all the amended counts upon which the plaintiff relies being in tort. It is not neces- sary to sustain the demurrer on account of this lack of literal precision in entitling the action. The defendant relies on several other extremely fine points of objection, but, without dwelling on them in detail, it may be said, in general terms, that the several counts sufficiently CH. II.] MILWAUKEE & C. EY. CO. v. KELLOGG. 33 set forth the facts from which the duty of the defendant towards the plaintiff sprung, and it is not necessary to state formally and in terras that the defendant occupied such a rela- tion towards the plaintiff that the law cast upon him the duty ; they also sufficiently aver that the defendant neglected that duty, and that the plaintiff was injured by reason thereof. It is not necessary to aver that the defendant knew of the injurious quality of the food. It is sufficient if it appears that he ought to have known of it, and was negligent in fur- nishing unwholesome food, by reason whereof the plaintiff was injured. , _ Judgment reversed. PROXIMATE CAUSE. Milwaukee & C. Rt. Co. v. Kellogg. {94U.S. 469.— 1876.) Eeeoe to the Circuit Court of the United States for the District of Iowa. The facts are stated in the opinion of the court. Mr. John W. Gary for the plaintiff in error. Mr. Myron H. Beach contra. Me. Justice Steong delivered the opinion of the court. This was an action to recover compensation for the destruc- tion by fire of the plaintiff's saw-mill and a quantity of lumber, situated and lying in the State of Iowa, and on the banks of the river Mississippi. That the property was destroyed by fire was uncontroverted. From the bill of exceptions, it appears that the " plaintiff alleged the fire was negligently communi- cated from the defendants' steamboat ' Jennie Brown ' to an elevator built of pine lumber, and one hundred and twenty feet high, owned bj' the defendants, and standing on the bank of the river, and from the elevator to the plaintiff's saw-mill 3 34 PROXIMATE CAUSE. [bk. i. and lumber piles, whilst an unusually strong wind was blow- ing from the elevator towards the mill and lumber. On the trial, it was admitted that the defendants owned the steam- boat and elevator ; that the mill was five hundred and thirty- eight feet from the elevator, and that the nearest of plaintiff's piles of lumber was three hundred and eighty-eight feet distant from it. It was also admitted that there was conflict between the parties plaintiff and defendant respecting the ownership of the land where the mill stood and the lumber was piled, both claiming under a common source of title. The plaintiff had built the mill, and he was in occupation of it, believing he had a right to be there." ***** A second exception taken in the court below and here in- sisted upon, is that the court refused to permit the defendants to prove by witnesses who were experts, experienced in the business of fire insurance, and accustomed by their profession to estimating and calculating the hazard and exposures to fire from one building to another, and to fixing rates of insurance, that, owing to the distance between the elevator and the mill, and the distance between the elevator and the lumber piles, the elevator would not be considered as an exposure to the mill or lumber, and would not be considered in fixing a rate thereon, or in measuring the hazard of mill or lumber. This exception is quite unsustainable. The subject of pro- posed inquiry was a matter of common observation, upon which the lay or uneducated mind is capable of forming a judgment. In regard to such matters, experts are not per- mitted to state their conclusions. In questions of science their opinions are received, for in such questions scientific men have superior knowledge, and generally think alike. Not so in matters of common knowledge. Thus, it has been held that an expert cannot be asked whether the time during which a railroad train stopped was sufficient to enable the passengers to get off {Keller v. Railroad Company, 2 Abb. (IS". Y.) App. Dec. 480) ; or whether it was prudent to blow a whistle at a particular time {Hill v. Railroad Company, 55 Me. 438). Nor can a person conversant with real estate be asked respect- ing the peculiar liability of unoccupied buildings to fire. {Muloy CH. II.] MILWAUKEE & C. EY. CO. v. KELLOGG. 35 V. Insurance Company, 2 Gray (Mass.) 541.) In Durell v. Bed- evil/, Chief Justice Gibbs said, " The opinion of the under- writers on the materiality of facts, and the effect they would have had upon the premium, is not admissible in evidence." Powell's Evid. (4th ed.) 103. And in Campbell v. Richards, 5 Barn. & Ad. 846, Lord Denman said : " Witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced, if the parties had acted in one way rather than in another." See also Lord Mansfield's opinion in Carter v. Boehm, 3 Burr. 1905, 1913, 1914, and Normam, v. Higgins, 107 Mass. 494, in which it was ruled, that, in an action for kin- dling a fire on the defendant's land so negligently that it spread to the plaintiff's land and burned his timber, the opin- ion of a person experienced in clearing land by fire, that there was no probability that a fire set under the circumstances described by the witnesses would have spread to the plaintiff's land, was inadmissible. The next exception is to the refusal of the court to instruct the jury as requested, that " if they believed the sparks from the 'Jennie Brown' set fire to the elevator through the negli- gence of the defendants, and the distance of the elevator from the nearest lumber pile was three hundred and eighty-eight feet, and from the mill five hundred and twenty-eight feet, then the proximate cause of the burning of the mill and lum- ber was the burning of the elevator, and the injury was too remote from the negligence to afford a ground for recovery." This proposition the court declined to affirm, and in lieu thereof submitted to the jury to find whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator ; whether it was a result which, under the circumstances, would naturally follow from the burning of the elevator; and whether it was the result of the continued effect of the sparks from the steam- boat, without the aid of other causes not reasonably to be expected. All this is alleged to have been erroneous. The assignment presents the oft-embarrassing question, what is and what is not the proximate cause of an injury. The point pro- pounded to the court assumed that it was a question of law in 36 PEOXIMATE CAUSE. [bk. i. this case ; and in its support the two cases of Ryan v. The Neio York Central Railroad Co., 35 N. Y. 210, and Kerr v. Penn- sylvania Railroad Oo., 62 Penn. St. 353, are relied upon. Those cases have been the subject of much criticism since they were decided ; and it may, perhaps, be doubted whether they have always been quite understood. If they were intended to assert the doctrine that when a building has been set on fire through the negligence of a party, and a second building has been fired from the first, it is a conclusion of law that the owner of the second has no recourse to the negligent wrong-doer, they have not been accepted as authority for such a doctrine, even in the States where the decisions were made. ( Weih v. The Rome, Watertown c& Ogdenshurg Railroad Co., 49 If. Y. 420, and Pennsylvania Railroad Co. v. Hope, 80 Penn. St. 373.) And certainly they are in conflict with numerous other decided cases. {Kellogg v. The Chicago S North Western Railroad Co., 26 Wis. 224 ; Perley v. The Eastern Railroad Co., 98 Mass. 414 ; Eiggins v. Dewey, 107 id. 494;, Kent v. The Toledo, Peoria & Warsaw Railroad Co., 59 111. 349.) The true rule is, that what is the proximate cause of an injury is ordinarily a questi m for a jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the market-place. (2 Bl. Kep. 892.) The question always is, was there an unbroken connection between the wrongful act and the injury, a contin- uous operation ? Did the facts constitute a continuous succes- sion of events, so linked together as to make a natural whole, or was there some new and independent cause intervening be- tween the wrong and the injury ? It is admitted that the rule is difficult of application. But it is generally held, that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrono-ful act, CH. II.] MILWAUKEE & C. EY. CO. v. KELLOGG. 37 and that it ought to have been foreseen in the light of the attending circumstances. These circumstances, in a case Ulie the pr-esent, are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximity and combustible nature of the saw-mill and the piles of lumber. Most of these circumstances were ignored in the request for instruction to the jury. Yet it is obvious that the immediate and inseparable consequences of negligently firing the elevator would have been very different if the wind had been less, if the elevator had been a low building constructed of stone, if the season had been wet, or if the lumber and the mill had been less combustible. And the defendants might well have anticipated or regarded the probable consequences of their negligence as much more far-reaching than would have been natural or probable in other circumstances. "We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the mis- feasance or nonfeasance. They are not when there is a suffi- cient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as teaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury. Here lies the diffi- culty. But the inquiry must be answered in accordance with common understanding. In a succession of dependent events an interval may always be seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. Thus, if a building be set on fire by negligence, and an adjoining building be destroyed without any negligence of the occupants of the first, no one would doubt that the destruction of the second was due to the negligence that caused the burning of the first. Yet in truth, in a very legitimate sense, the immediate cause of the burning of the second was the burning of the first. The same might be said of the burning of the furniture in the first. Such re- finements are too minute for rules of social conduct. In the 38 PEOXIMATE CAUSE. [bk. i. nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is in the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time. If we are not mistaken in these opinions, the Circuit Court was correct in refusing to affirm the defendants' proposition, and in submitting to the jury to find whether the burning of the mill and lumber was a result naturally and reasonably to be expected from the burning of the elevator, under the cir- cumstances, and whether it was the result of the continued in- fluence or effect of the sparks from the boat, without the aid or concurrence of other causes not reasonably to have been expected. The jury found, in substance, that the burning of the mill and lumber was caused by the negligent burning of the elevator, and that it was the unavoidable consequence of that burning. This, in effect, was finding that there was no intervening and independent cause between the negligent conduct of the defendants and the injury to the plaintiff. The judgment must, therefore, be affirmed.^ Judgment affirmed. Bosch v. the B. & M. Et. Co. (44Iowa, 402. — 1876.) Plaintiffs alleged that they were the owners of certain lots in the city of Burlington upon which they had erected I Ryan v. N. Y. C. By. Co., supra, has been criticised or distinguished frequently; e.g. Fent v. Toledo &c. My. Go., 59 111. 349; 14 Am. R. 19; Clemens v. Hannibal &a. Bij. Co., 53 Mo. 366; 14 Am. R. 460; D., L. &. W. By. Co. V. Salmon, 10 Vroom, 299 ; 23 Am. R. 214; Billman v. TeiTe Haute, I. &c. Ry. Co., 96 Ind. 346 ; Lowery v. Manhattan By. Co., 99 N. Y. 158. It is followed in Bead v. Nichols, 118 N. Y. 224, a doubtful case. One whose negligence has inflicted an injury which must prove fatal but for a surgical operation, is not relieved from liability because the blunder of a skilful surgeon hastens death. {Santer y.'N. Y. C. & H. R. Ry. Co., 66 N. Y. 60.) CH. II.] BOSCH V. THE B. & M. EY. CO. 39 valuable buildings ; that a public street lay between these lots and the river and contiguous to the latter; that defendant filled up a portion of the river with deposits of earth, increas- ing the distance of plaintiflf's property therefrom nearly 800 feet, and occupied it with tracks, yards and buildings ; that by reason of this change and use of the embankment hj the defendants the fire department of the city was unable to gain access to the river and to extinguish a fire that had acci- dentally broken out in plaintiff's building, whereby it was: destroyed. Damages were claimed for the value of the build- ings, amounting to over $22,000. Demurrer to the petition was sustained and plaintiffs ap- pealed. P. H. Smyth for appellants. D. Borer for appellee. KoTHEocK, J. Aware as we are of the difficulty in many cases in determining whether damages claimed should be regarded as proximate or remote, yet we are united in the opinion that the court below correctly determined that no recovery can be had upon the allegations in this petition, for the reason that the damages are not the direct and proximate result of the wrongs complained of, but are too remote. lu the case of Insurance Company v. Friend, 1 Wallace, 49, it is said : " We have had cited to us a general review of the doc- trine of proximate and remote causes as it has arisen and has /been decided in the courts in a great variety of cases. It would be an unprofitable labor to enter into an examination of these cases. If we could deduce from them the best possi- ble expression of the rule, it would remain after all to decide each case largely upon the special facts belonging to it, and often upon the very nicest discriminations." We do not regard the facts of this case as an approach to the dividing line where distinctions become shadowy and dis- criminations difficult to be made. If any damages were recoverable for the obstruction of the streets by an improper construction of defendant's road, thus depriving plaintiffs of 40 PROXIMATE CLAUSE. [bk. i. convenient access to the river, they were recoverable by rea- son of the obstruction of the streets, and simply because the streets were obstructed, and not by reason of a fire, which could not be extinguished because the defendant occupied and used the streets for a railroad. We have examined the cases cited by counsel for appellants, and although they are ingeniously presented, yet the facts in this case are so widely different from any of them that we cannot regard them as applicable. The nearest approach to this case is that of the Metallic Compression Co. v. Fitchhurg Railroad Company, 109 Mass. 277. In that case the facts were that plaintiff's manufacturing establishments, situated about fifty feet from defendant's railroad track, were on fire. Two fire engines were brought on the ground, the hose was laid across the railroad track to a hydrant, and water was being thrown on the fire, which was being diminished. A freight train approached, and although warned in time, the employees of defendant negligently ran across the hose, severing it, and stopping the supply of water, and the building was burned. The defendant was held liable. We suppose without question that if one should in any man- ner, by cutting the hose, disabling the engine, or the like, stop the stream of water, by reason of which act property is de- stroyed, he would be liable, because the damages are the direct and proximate result of his act. But in the case at bar the building of the railroad tracks and depots, the widening and filling the streets, have no connection with the fire, nor with the hose or other apparatus of the fire companies. They are independent acts, and their influence in the destruction of plaintiff's property is too remote to be made the basis of re- covery.^ Affirmed. 1 Scheffer v. Sy. Co., 105 U. S. 249; IVhite v. Conly, 14 Lea, 51 ; Searle v. G. C. & 8. F. By. Co., 65 Tex. 274; Victorian Rp. Com'rs. v. Coultas, 13 App. Cas. 222; accord. Hill v. Kimhall, 76 Tex. 210; 13 S. W. R. 59, contra. Cf. Buchanan v. West Jersey Ry. Co., 52 N. J. L. 265 ; and lienner v. Canfield, 36 Minn. 90 ; 30 N. W. 435. Remoteness of damages was thoroughly discussed In The Argentino, 13 P. D. 191 ; affd., 14 App. Cas. 619. CH. II.] MoDONALD V. SNELLING. 41 McDonald v. Snelling. (14 Allen, 290. — 1867.) Defendant's servant was so negligently driving in a public street as to come into collision with a carriage, and thereby caused the horse which was drawing the same to take fright and run away, and to inflict serious injuries upon plaintiff's person and property. Defendant's demurrer to plaintiff's declaration was over^ ruled and he appealed. J. L. Stachpole for defendant. J. Nidkerson for plaintiff. FosTEE, J. The question raised by this demurrer is, whether the injury received by the plaintiff was so remote from the negligent act of the defendant that the action cannot be sus- tained, although the plaintiff was injured witiiout his own fault, and would not have been injured but for the fault of the defendant. How far at common law is one guilty of neg- ligence responsible in damages for the consequences resulting from his neglect ? If the present action had been brought against a town, under circumstances similar to those disclosed in this declara- tion. Marble v. Worcester, 4 Gray, 395, would be a decisive authority in favor of the defendant. The liability for dam- ages caused by defects in highvvaiys is limited to cases Avhere the defect is the direct and immediate cause of the injury. {Jenks V. Wilbraham, 11 Gray, 142. But this statute liability is more narrowly restricted than the rule in actions at com- mon law for damages caused by negligence, in which it is per- fectly well settled that the contributory negligence of a third party is no defence, where the defendant has also been guilty of negligence without which the damage would not have been sustained. {Eaton v Boston & Lowell Railroad, 11 Allen, 500.) The extent of the defendant's responsibility cannot therefore be conclusively determined by the rule of Marble v. Worcester, because the limits of liability under the statute as to defects 42 PROXIMATE CAUSE. [bk. i. in public ways and at common law for negligence are not iden- tical. These cases against towns can be reconciled with the general principles of the law only by the consideration that they depend exclusively on the statute provision, within the terms of which they are strictly confined. Opinions upon questions of marine insurance are frequently quoted, to illustrate the meaning of the maxim, causa proxima non remota spectatur. The exigencies of the present decision do not require an elaborate examination of the doctrine in its application to the law of insurance ; but a few observations may be useful. Where the immediate cause of loss is a peril insured against, the underwriters are not exonerated by the fact that its original cause was something not covered by the policy. They are liable if the loss ends in a peril insured against, although it began in some other cause. Thus, a loss arising immediately from a peril of the sea, but remotely from the negligence of the master, is protected by the policy ; but it by no means follows that, in an action brouglit against the owner or master for such negligence, the consequent loss of the cargo could not be included in the measure of damages. {ReWmoM v. Wilson, 14 M. & "W". 476.) On the contrary, where a master unnecessarily deviated from his voyage, and during the deviation a cargo of lime was wet by a tempest, and the bark was thereby set on fire and consumed, the owner was held liable for the fault of his agent, the master, and the devia- tion was deemed to be sufficiently the proximate cause of the loss of the cargo. {Davis v. Garrett, 6 Bing. 716.) In a recent insurance cause, one learned judge, Willes, J., said : " The ordi- nary rule of assurance law is, that you are to look to the proxi- mate and immediately operating cause, and to that only " ; and another, Erie, C. J., said : " The words are to be construed with reference to the known principle pervading insurance law, causa proxima non remota spectatur ; the loss must be con- nected with the supposed cause of it, and in the relation of cause and effect, speaking according to common parlance." {fonides v. Universal Ins. Co., 8 Law Times (N. S.) 705 ; Marsden v. City and County Ass. Co., Law Eep. 1 C. P. 232.) But in an action for damages for refusing to receive a ship into a dock, the rule was said to be " that the damage must be proxi- CH. II.] McDonald v. spelling. 43 mate (not immediate) and fairly and reasonably connected with the breach of contract or wrong. As to what is so, different minds will differ." (Wilson v. Newport Dock Co., Law Eep. 1 Exch. 186.) Perhaps the truth may be that a maxim couched in terms so general as to be necessarily somewhat indefinite has been indiscriminately applied to different classes of cases in differ- ent senses, or at least without exactness and precision; and that is the real explanation of the circumstance that causa proxima, in suits for damages at common law, extends to the natural and probable consequences of a breach of contract or tort ; while in insurance cases and actions on our highway statute it is limited to the immediately operating cause of the loss or damage. If this be so, the frequent reference to the maxim in cases like the present is not particularly useful, and certainly not conducive either to an accurate statement of principles or to uniform and intelligible results. In insurance causes the maxim is resorted to as furnishing a rule by which to determine whether a loss is attributable to a peril against which the contract has promised indemnity, and its application charges as frequently as it exonerates the underwriter. {Peters V. Warren Insurance Co., 3 Sumner, 389; S. G. M* Pet. .99; Hillier v. Alleghany County Ins. Co., 3 Penn. State R. 470.) The limits of liability and the definition of proximate cause in the law of insurance are too narrow and restricted to be applied to the present case. Definitions and illustrations drawn from other branches of the law may afford instructive analogies, but for controlling authorities we are to look to adjudications in actions of a similar nature to the present, and arising upon a state of facts more closely resembling those now under consideration. Here the defendant is alleged to have been guilty of culpable negli- gence. And his liability depends, not upon any contract or statute obligation, but upon the duty of due care which every man owes to the community, expressed in the maxim sic utere tuo ut alienum non laedas. Where a right or duty is created wholly by contract, it can only be enforced between the contracting parties. But where the defendant has violated a duty imposed upon tim by the 44 PEOXIMATE CAUSE. [bk. i. common law, it seems just and reasonable that he should be held liable to every person injured, whose injury is the natural and probable consequence of the misconduct. In our opinion, this is the well-established and ancient doctrine of the common law, and such a liability extends to consequential injuries, by whomsoever sustained, so long as they are of a character likely to follow, and which might reasonably have been anticipated as the natural and probable result under ordinary circum- stances of the wrongful act. The damage is not too remote, if, according to the usual experience of mankind, the result was to be expected. This is not an impracticable or unlimited sphere of accountability, extending indefinitely to all possible contingent consequences. An action can be maintained only where there is shown to be : first, a misfeasance or negligence in some particular as to which there was a duty towards the party injured or the community generally ; and, secondly, where it is apparent that the harm to the person or property of ajiother which has actually ensued was reasonably likely to ensue from the act or omission complained of. Two recent cases, both much considered, sound and consist- ent with each other, well illustrate the true rule of law. A druggist 'who carelessly labelled belladonna, a deadly poison, as extract of dandelion, a harmless medicine, and sent it so labelled into the market, was held, by the court of appeals in New York, liable in damages, after it had passed through several intervening hands, had been purchased of an apothe- cary and administered by the plaintiff to his wife, who was injured by using it as medicine in consequence of the false label. {Thomas v. Winchester, 2 Selden, 397.) Here the dealer owed to the public a duty not to expose human hfe to danger by falsely labelling a noxious drug and selling it in the market as a harmless article. To do so was culpable and actionable negligence towards all likely to be, and who were in fact, injured by the mistake. And the injury that did follow was the natural and easily foreseen result of the carelessness. On the other hand, where an article, black oxide of man- ganese, in itself harmless, which became dangerous only by being combined with another, was sold by mistake, the plain- tiff, who purchased it of a third party and mixed it with CH. II.] McDonald v. snelling, 45 another substance, the combination with which caused a dan- gerous explosion, was held by this court to have no right of action against the original vendor who made the mistake, for the damages caused by the explosion. {Davidson v. Nichols, 11 Allen, 514.) The mistake in regard to an article in its own nature ordinarily harmless, in the absence of contract or false representation, was not a violation of any public duty or negligence of such a wrongful and illegal character as to render the party who made it liable for its consequences to third per- sons. ISTor was it a natural and probable consequence of such a mistake that this ordinarily innocuous substance would be mixed with another chemical agent, become explosive by the combination, and a third party be thereby injured. It is clear from numerous authorities that the mere circum- stance that there have intervened, between the wrongful cause and the injurious consequence, acts produced by the volition of animals or of human beings, does not necessarily make the result so remote that no action can be maintained. The test is to be found, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious conse- quence. So long as it affirmatively appears that the mischief is attributable to the negligence as a result which might reasonably have been foreseen as probable, the legal hability continues. There can be no doubt that the negligent management of horses in the public street of a city is so far a culpable act that any person injured thereby is entitled to redress. "Who- ever drives a horse in a thoroughfare owes the duty of due care to the community, or to all persons whom his negligence may expose to injury. Nor is it open to question that the master in such a case is responsible for the misconduct of his servant. Applying these principles more closely to the facts set forth in this declaration and admitted by the demurrer, we find that by careless driving the defendant's sled was caused to strike against the sleigh of one Baker with such violence as to break it in pieces, throwing Baker out, frightening his horse, and causing the animal to escape from the control of its driver and to run 46 PROXJMATE CAUSE. [bk. i. violently along Tremont street round a corner, near by, into Eliot street, where he ran over plaintiff and his sleigh, break- ing that in pieces and dashing him on the ground. Upon this statement, indisputably the defendant would be liable for the injuries received by Baker and his horse and sleigh. Why is he not also responsible for the mischief done by Baker's horse in its flight ? If he had struck that animal with a whip and so made it run away, would he not be liable for an injury like the present ? By the fault and direct agency of his ser- vant the defendant started the horse in uncontrollable flight through the streets. As a natural consequence, it was ob- viously probabie that the animal might run over and injure persons travelling in the vicinity. Every one can see plainly that the accident to the plaintiff was one very likely to ensue from the careless act. We are not therefore dealing with the remote or unexpected consequences, not easily foreseen or or- dinarily likely to occur, and the plaintiff's case falls clearly within the rule already stated as to the liability of one guilty of negligence for the consequential damages resulting therefrom. These views are fortified by numerous decisions, to a few of which it may be expedient to refer. It was recently held by this court that when a horse was turned loose on the high- way, and there kicked a colt running by the side of its dam, the owner of the horse was liable for that damage. {Barnes v. Chapin, 4 Allen, 444.) We cannot distinguish between the dif- ferent ways of letting a horse loose upon the street ; whether by leaving him there untied, or leaving a gate open, or, as in the present case, by driving against him, and thus causing him to run away. In Powell v. Deveney, 3 Cush. 300, the defend- ant's servant left a truck standing beside a sidewalk in a pub- lic street, with the shafts shored up by a plank in the usual way. Another truckman temporarily left his loaded truck directly opposite on the other side of the same street, after which a third truckman tried to drive his truck between the two others. In attempting to do so with due care, he hit the defendant's truck in such a manner as to whirl its shafts round on the sidewalk so that they struck the plaintiff, who was walking by, and broke her leg. For this injury she was al- CH. II.] . McDonald v. snelling. 47 lowed to maintain her action, the only fault imputable to the defendant being the careless position in which the truck was left by his servant on the street, which was treated as the sole cause of the breaking of the plaintiff's leg, and in legal con- templation sufficiently proximate to render the defendant re- sponsible. (See, also, Powell v. Salishcry, 2 Yo. & Jer. 391 ; Vandenlurg v. Truax, 4 Denio, 464; Highy v. Hewitt, 5 Exch. 240 ; Greenland v. Chaplin, ib. 245 ; Morrison v. Davis, 20 Penn. State K. 175 ; Zynck v. JVurdin, 1 Q. B. 29 ; Thomas v. Winchester, uM supra, and cases there cited.) "When a horse strayed on the highway and there viciously and violently kicked a child, the owner was held not liable in the absence of evidence that he knew the animal was in the habit of kicking ; because the act was not one which it was in the ordinary course of nature for a horse of common temper and disposition to do. {Cox v. Burlidge, 32 Law Journ. (E. S.) C. P. 89. See also Coolc v. Waring, ib. Exch., 262.) But two years later the same court held a defendant liable who had negligently left insecure a gate which he was bound to repair, in consequence of which his horse strayed into the field of an adjoining proprietor and there kicked an- other horse ; because this was the natural consequence of two horses meeting under such circumstances, and such an injury produced by such an animal was deemed to be the proximate consequence of the defendant's negligence. {Lee v. Riley, 34 Law Journ. (IST. S.) C. P. 212. See, also, Reed v. Edwards, ib. C. P. 31.) In a case where the defendant left on the street, exposed for sale, a machine for crushing oil cake between rollers, into the cogs of which a little child put his fingers while another boy turned the handle, and the fingers were crushed, the court held that the act was too remote ; and Bramwell, B., said : " The defendant was no more liable than if he had exposed goods colored with a poisonous paint, and the child had sucked them ; " but the same Baron added, "further I can see no evidence of negligence in him. If his act in exposing this machine was negligence, will his act in expos- ing it again be called wilfully mischievous ? If that could not be said, then it is not negligence, for between negligence and wilful mischief there is no difference but of degree." {Man- 48 PROXIMATE CAUSE. . [bk. i. gan v. Atherton, Law Kep. 1 Exoh. 239.) This case has no tendency and indicates no intention to overrule Dixon v. Bell, 5 M. & S. 198, in which an injury having been received from a loaded gun, Lord EUenborough held the owner liable for leaving a dangerous instrument in a state capable of doing mischief, although the mischief was caused by a girl taking it up, pointing it at a child, and snapping the trigger after the priming had been withdrawn. It may not always be easy to determine whether any par- ticular act of negligence is of such a character as to render the party guilty of it liable to third persons ; or whether the ensuing consequences are so far natural and probable as to impose a liability for them in damages. Cases may be put, falling very near the dividing line, and no rule can be laid down in advance, which will determine all with precision. But the difficulty of applying a principle is a poor argument against its validity, unless one more satisfactory can be pro- posed in its stead. There may be discrepancies and want of uniformity in the application of the principle to the facts of particular cases, but all the authorities cited concur in the sup- port of the doctrines we have stated, and agree as to the rule by which the extent of liability for consequential damages resulting from negligence ought to be determined. In the opinion of a majority of the court, the demurrer in the present case must be overruled, because on the statements of the declaration, the plaintiff's injury does not appear to be so remote from the negligence of the defendant as to exon- erate the latter from liability. "When such a question is raised by the pleadings or arises upon agreed or undisputed facts, it is matter of law ; but where the evidence is contradictory, or the inferences to be drawn from it are uncertain, the jury must determine by a verdict whether the facts fall within the rule of law to be laid down on the subject. (Wilson v. Newport Dock Co., ubi sv^ra!) Demurrer overruled. CH. in. § 2.] THE " HAEETSBUEG." 49 CHAPTEE III. PEBSONS AFFECTED BT TORTS. Section 2. Damages foe Death: Admiealtt Kule. The " Haeeisbdrg." (119 0.8.199.-1886.) This is a suit in rein begun in the District Court of the United States for the Eastern District of Pennsylvania, on the 25th of February, 1882, against the steamer " Harrisburg," by the widow and child of Silas E. Eichards, deceased, to recover damages for his death caused by the negligence of the steamer in a collision with the schooner " Marietta Tilton," on the 16th of May, 1877, about one hundred yards from the Cross Eip Light Ship, in a sound of the sea embraced between the coast of Massachusetts and the islands of Martha's Yineyard and Nantucket, pjrts of the State of Massachusetts. The steamer was engaged at the time of the collision in the coasting trade, and belonged to the port of Philadelphia, where she was duly enrolled according to the laws of the United States. The deceased was first officer of the schooner, and a resident of Delaware, where his widow and child also resided when the suit was begun. Reported below in 15 Fed. Eep. 610. Mr. Thomas Mart, Jr., for appellant. Mr. Henry Flanders for appellees. Me. Chief Justice "Waite. The question to be decided pre- sents itself in three aspects, which may be stated as follows : 1. Can a suit in admiralty be maintained in the courts of the United States to recover damages for the death of a human being on the high seas, or waters navigable from the sea, 4 50 PERSONS AFFECTED BY TOETS. [bk. i. caused by negligence, in the absence of an act of Congress, or a statute of a State, giving a right of action therefor ? 2. If not, can a suit in rem be maintained in admiralty against an offending vessel for the recovery of such damages when an action at law has been given therefor by statute in the State where the wrong was done, or where the vessel belonged ? 3. If it can, will the admiralty courts permit such a recovery in a suit begun nearly five years after the death, when the statute which gives the right of action provides that the suit shall be brought within one year? It was held by this court, on full consideration, in Insur- ance Company v. Brame, 95 U. S. 756, " that by the common law no civil action lies for an injury which results in death." (See, also, Denniok v. Railroad Co., 103 U. S. 11, 21.) Such also is the judgment of the English courts, where an action of the kind could not be maintained until Lord Campbell's Act, 9 and 10 Vict. c. 93. It was so recited in that act, and so said by Lord Blackburn in Seward v. The Vera Cruz, 10 App. Cas. 59, decided by the House of Lords in 1884. Many of the cases bearing on this question are cited in the opinion in Insurance Co. v. Brame. Others will be found referred to in an elaborate note to Carey v. Berkshire Railroad, 1 Cush. 475 ; in 48 Am. Dec. 616, 633. The only American cases in the common-law courts against the rule, to which our atten- tion has been called, are Cross v. Guthery, 2 Hoot, 90; S. O. 1 Am. Dec. 61; Ford v. Monroe, 20 Wend. 2\0; James v. Christy, 18 Missouri, 162 ; and Sullivan v. Union Pacific Rail- road, 3 Dillon, 334. Cross v. Guthery, a Connecticut case, was decided in 1794, and cannot be reconciled with Goodsell v. Hartford cfe New HoAjen Railroad, 33 Conn. 55, where it is said : " It. is a singular fact, that by the common law the greatest injury which one man can inflict on another, the tak- ing of his life, is without a private remedy." Ford v. Munroe, a New York case, was substantially overruled by the Court of Appeals of that State in Green v. Hudson River Railroad, 2 Keyes, 294 ; and Sullivan v. Union Pacific Railroad, decided in 1874 by the Circuit Court of the United States for the Dis- trict of Nebraska, is directly in conflict with Insurance Co. v. Bramie, decided here in 1878. CH. III. § 2.] THE "HAEEISBUEG." 51 "We know of no English case in which it has been authori- tatively decided that the rule in admiralty differs at all in this particular from that at common law. Indeed, in The Yera Cruz, supra, it was decided that even since Lord Campbell's Act a suit in rem could not be maintained for such a wrong. Opinions were delivered in that case by the Lord Chancellor (Selborne), Lord Blackburn and Lord Watson. In each of these opinions it was assumed that no such action would lie without the statute, and the only question discussed was vs^hether the statute had changed the rule. In view, then, of the fact that in England, the source of our system of law, and from a very early period one of the principal maritime nations of the world, no suit in admiralty can be maintained for the redress of such a wrong, we proceed to inquire whether, under the general maritime law as admin- istered in the courts of the United States, a contrary rule has been or ought to be established. In Plummer v. Webb, 1 Ware, 75, decided in 1825, Judge Ware held, in the District Court of the United States for the District of Maine, in an admiralty suit in personam, that " the ancient doctrine of the common law, founded on the principles of the feudal system, that a private wrong is merged in a felony, is not applicable to the civil polity of this country, and has not been adopted in this state" (Maine), and that "a libel may be maintained by a father, in the admiralty, for conse- quential damages resulting from an assault and battery of his minor child," " after the death of the child, though the death was occasioned by the severity of the battery ; " but the suit was dismissed, because upon the evidence it did not appear that the father had in fact been damaged. The case was afterwards before Mr. Justice Story on appeal, and is reported in 4 Mason, 380, but the question now involved was not con- sidered, as the court found that the cause of action set forth in the libel and proved was not maritime in its nature. We find no other reported case in which this subject was at all discussed until Cutting v. Sealury, 1 Sprague, 522, decided by Judge Sprague in the Massachusetts district in 1860. In that case, which was in pei'sonam, the judge said that " the weight of authority in the common-law courts seems to be 52 PEESONS AFFECTED BY TORTS. [bk. i. against the action, but natural equity and the general princi- ples of law are in favor of it," and that he could not consider it " as settled that no action can be maintained for the death of a human being." The libel was dismissed, however, be- cause on the facts it appeared that no cause of action existed even if in a proper case a recovery could be had. The same eminent judge had, however, held as early as 1849, in Crapo v. Allen, 1 Sprague, 185, that rights of action in admiralty for mere personal torts did not survive the death of the person injured. Next followed the case of The Sea Gull, Chase's Dec. 145, decided by Chief Justice Chase in the Maryland district in 1867. That was a suit in rem by a husband to recover dam- ages for the death of his wife caused by the negligence of the steamer in a collision in the Chesapeake Bay, and a recovery was had, the Chief Justice remarking that "there are cases, indeed, in which it has been held that in a suit at law no redress can be had by the surviving representative for injuries occasioned by the death of one through the wrong of another ; but these are all common-law cases, and the common law has its peculiar rules in relation to this subject, traceable to the feudal system and its forfeitures," and " it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to with- hold it by established and inflexible rules." In his opinion he refers to*the leading English case of Baker v. Bolton, 1 Camp. 493, where the common-law rule was recognized and followed by Lord EUenborough in 1808, and to Carey v. Berkshire Railroad, 1 Cush. 475; S. C. 48 Am. Dec. 616, to the same effect, decided by the Supreme Court of Massachusetts in 1848, and then says that "in other States the English prece- dent has not been followed." For this he cites as authority Ford V. Munroe, supra, decided in 1838, but which, as we have sepn, had been overruled by Green v. Hudson River Railroad in 1866, only a short time before the opinion of the Chief Justice was delivered, and James v. Christy, 18 Mis- souri, 162, decided by the Supreme Court of Missouri in 1853. The case of The Highland Light, Chase's Dec. 450, was before Chief Justice Chase in Maryland about the same time with CH. III. § 2.] THE "HAEEISEURG." 53 The Sea Gull, and while adhering to his ruling in that case, and remarking that "the admiralty may be styled, not im- properly, the human providence which watches over the rights and interests of those ' who go down to the sea in ships and do their business on the great waters,' " he referred to a Maryland statute giving a right of action in such cases, and then dismissed the libel because on the facts no liability was established against the vessel as an offending thing. Afterwards, in 1873, Mr. Justice Blatchford, then the judge of the District Court for the Southern District of New York, sustained a libel by an administrator of an infant child who took passage on the steamer " City of Brussels " with its mother at Liverpool, to be carried to New York, and while on the voyage was poisoned by the carelessness of the oflBcers of the vessel and died on board. {City of Brussells, 6 Ben. 370.) The decision was placed on the ground of a breach of the contract of carriage. The next case in which this jurisdiction was considered is that of The Towanda, 34 Leg. Int. (Philadelphia) 394 ; S. C. under the name of Goggins v. Helmsley, 5 Cent. Law Jour. 418, decided by Judge McKennan in the Circuit Court for the East- ern District of Pennsylvania in 1877, and before the judgment of this court in Insurance Go. v. Brame, supra. In that case the ruling of Chief Justice Chase in The Sea Gull was approved, and the same authorities were cited, with the addition of Sul- livan V. Union Pacific Railroad, supra. In The Gharles Morgan, 2 Flip. 274, before Judge Swing, in the Southern District of Ohio on the 24th of October, 1878, the subject was again considered. That was a suit in rem, by the wife of a passenger on a vessel, to recover damages for the death of her husband ; and in deciding upon the sufficiency of a plea to the jurisdiction, the judge, after quoting a remark of Mr. Justice Clifford in The Steamboat Go. v. Ghase, 16 Wall. 532, that "difficulties, it must be conceded, will attend the solution of this question, but it is not necessary to decide it in this case," retained the hbel because, "as the case at bar will probably go to the Supreme Court of the United States, it will be better for all parties that the appeal should be taken after z. trial upon its merits." Our decision in Insurance Go. v. 54 PERSONS AFFECTED BY TOETS. [bk. i. 'Srame w&s announced on the 21st of January, 1878, but was evidently not broughrt to the attention of the judge, because, while citing quite a number of cases to show that the weight of authority was in favor of the English rule, he makes no ref- erence to it. Indeed, it is probable that the volume of the reports in which it appears had not been generally distributed when his opinion was filed. It thus appears that prior to the decision in Insurance Co. V. Brame the admiralty judges in the United States did not rely for their jurisdiction on any rule of the maritime law different from that of the common law, but on their opinion that the rule: of the English common law was not founded in reason, and had not become firmly established in the jurisdic- tion of this country. Since that decision the question has been several times before the Circuit and District Courts for con- sideration. In The David Reeves, 5 Hughes, 89, Judge Morris, of the Maryland district, considering himself bound by the authority of The Sea Gull, which arose in his district, and had been decided by the Chief Justice in the Circuit Court, maintained jurisdiction of a suit in rem by a mother for the death of her son in a collision that occurred in the Chesapeake Bay. He conceded, however, that this was contrary to the common law and to the admiralty decisions in England, but as the question never had been passed on in this court, he yielded to the authority of the Circuit Court decision in his own dis- trict. The case of Holmes v. Oregon and California Railway, 6 Sawyer, 262; 8. C. 5 Fed. Eep. 75, was decided by Judge Deady, in the Oregon district, on the 28th of February, 1880, and he held that a suit in personam could be prosecuted in admiralty against the owner of a ferry-boat engaged in carry- ing passengers across the Wallamet river, between East Port- land and Portland, for the death of a passenger caused by the negligence of the owner. He conceded that no such action would lie at common law, but, as in his opinion the civil law was different, he would not admit that in admiralty, " which is not governed by the rules of the common law," the suit could not be maintained. His decision was, however, actually put on the Oregon statute, which gave an action at law for CH. III. § 2.] THE "HARRISBUilG." 55 damages in such ?. case, and the death occurred within the jurisdiction of the State. Judge Sawyer had previously de- cided, in Armstrong v. Beadle, 5 Sawyer, 484, in the Circuit Court for the District of CaUfornia, that an action at law under a similar statute of California, would not lie for a death which occurred on the high seas and outside of the territorial limits of the State. In The Clatsop Chief, 7 Sawyer, 274 ; S. C. 8 Fed. Rep. 163, Judge Deady sustained an action in rein against an offending vessel for a death caused by negligence in. the Columbia river and within the State of Oregon. In The Long Island NorHh Shore Passenger and Freight Trans. Co., 5 Fed. Eep. 599, which was a suit for the benefit of the act of Congress limiting the liability of the owners of vessels. Judge Choate, of the Southern District of New York, decided that in New York, where there is a statute giving a right of action in cases of death caused by negligence, claims for damages of that character might be included among the liabilities of the owner of the offending vessel. In that case the injury which caused the death occurred within the limits of the State. In the opinion it is said (p. 608) : " It has been seriously doubted whether the rule of the common law, that a cause of action for an in- jury to the person dies with the person, is also the rule of the maritime law. There is some authority for the proposition that it is not, and that in admiralty a suit for damage in such a case survives. {The Sea Gull, 2 L. T. E. 15 ; S. C. Chase's Dec. 145 ; Cutting v. Seabury, 1 Sprague, 522 ; The Guldfaxe, 19 L. T. R. 748 ; S. C. L. R. 2 Ad. & Ecc. 325 ; The Epsilon, 6 Ben. 379, 381.) But, however it may be in respect to the original jurisdiction of admiralty courts, I see no valid reason why the right of a person whom, under the municipal law governing the place of the transaction and the parties to it, the title to the chose in action survives, or a new right to sue is given for damages resulting from a tort, the admiralty courts, in the exercise of their jurisdiction in personam over marine torts, should not recognize and enforce the right so given." The case was decided on the 12th of February, 1881, and on the 21st of the same month Judge Brown, of the Eastern District of Michigan, in The Garland, 5 Fed. Rep. 56 PERSONS AFFECTED BY TORTS. [bk. i. 924, held that a suit in rem could be maintained by a father for the loss of the services of his two sons, killed in a collision in the Detroit river. In his opinion he said: "Were this an original question, ... I should feel compelled to hold that this libel could not be maintained. But other courts of admiralty in this country have furnished so many precedents for a contrary ruling, I do not feel at liberty to disregard them, although I am at a loss to understand why a rule of hability differing from that of the common law should obtain in these courts." His decision was, however, finally put on a stat- ute of Michigan which gave an action at law for such damages. In The Sylvan Grlen, 9 Fed. Eep. 335, Judge Benedict, of the Eastern District of New York, dismissed a suit in rem on the ground that the statute of New York giving an action for damages in such cases created no maritime lien. This case was decided on the ith of October, 1881. At November term, 1882, of the Circuit Court for the Eastern District of Louisiana, Judge Billings decided, in E. B. Ward, Jr., i Woods, 145 ; S. G. 16 Fed. Kep. 255, that a suit in rem. could not be maintained for damages for the death of a person in a collision on the high seas through the fault of a vessel having its home port in New Orleans, as the statute of Louisiana did not apply to cases where the wrong- ful act which caused the death occurred outside of the State. Afterwards, in June, 1883, Judge Pardee, of the Circuit Court for the same district, decided otherwise. (The E. B. Ward, Jr., 17 Fed. Kep. 456.) In his opinion he said (p. 459) : " Upon the whole case, considering the natural equity and reason of the matter, and the weight of authority as determined by the late adjudicated cases in the admiralty courts of the United States, I am inclined to hold that the ancient common-law rule, actio personalis moritur cum persona, if it ever prevailed in the ad- miralty law of this country, has been so modified by the statu- tory enactments of the various States and the progress of the age, that now the admiralty courts ' are permitted to estimate the damages which a particular person has sustained by the wrongful killing of another,' and enforce an adequate remedy. At all events, as the question is an open one, it is best to resolve the doubts in favor of what all judges consider to be ' natural equity and justice.' " He also was of opinion that, as the offend- CH. III. § 2.] THE "HAREISBURG." 57 ing vessel was wholly owned by citizens of Louisiana, and the port of New Orleans was her home port, the Louisiana statute applied to her, and that the court of admiralty could enforce such a right of action in a proceeding in rem. (See, also, The E. B. Ward, Jr., 23 Fed. Eep. 900.) The case of The Mmihasset, 18 Fed. Eep. 918, was decided by Judge Hughes, of the Eastern Virginia District, in January, 1884, and in that it was held that a suit in rem could not be maintained by the administratrix against a vessel, under the statute of Virginia which gave an action for damages caused by the death of a person, even though the tortious act was committed within the territorial limits of the State, but that the widow and child of the deceased man had a right of action, by a libel in rem, under the general maritime law, which they could maintain in their own names and for their own benefit. In so deciding the judge said : " The decision of Chief Justice Chase in the case of The Sea Gull, supra, establishes the validity of such a libel in this circuit. I would maintain its validity independently of that precedent. Such a right of action is a maritime right, conferred by the general law maritime (Domat. Civil Law, pt. 1, bk. 2, tit. 8, § 1, art. 4 ; Grotius, lib. 2, c. 17, § 13 ; Kuth. Inst. 206 ; Bell, Prin. Sc. Laws, p. 748, § 2029 ; Ersk. Inst. bk. 4, tit. 4, § 105) ; and is not limited as to time by the twelve months' limitation of the State statute." The last American case to which our attention has been called is that of The Columbia, 27 Fed. Eep. 900, decided by Judge Brown of the Southern District of JSTew York, during the present year. In giving his opinion, after referring to the fact that, as he understood, the question was then pending in this court, the judge said : " Awaiting the result of the determination of that court, and without referring to the common-law authorities, I shall hold in this case, as seems to me most consonant with equity and justice, that the pecuniary loss sustained by persons who have a legal right to support from the deceased, furnishes. a ground of reclamation against the wrong-doer w^hich should be recognized and compensated in admiralty." In Monaghan v. Horn, in re The Oarlam,d, 7 Canada Sup. Ct. 409, the Supreme Court of Canada held that a mother could not sue in her own name in admiralty for the loss of the 58 PERSONS AFFECTED BY TOETS. [bk. i. life of her son, on the ground that no such action would lie without the aid of a statute, and the statute of the Province of Ontario, where the wrong was done, and which was sub- stantially the same as Lord Campbell's act, provided that the action should be brought in the name of the administrator of the deceased person. No authoritative judgment was given as to the right of an administrator to sue in admiralty under that act. This was in 1882, before The Vera Cruz, supra, in the House of Lords. Such being the state of judicial decisions, we come now to consider the question on principle. It is no doubt true that the Scotch law " takes cognizance of the loss and suffering of the family of a person killed," and gives a right of action therefor under some circumstances. (Bell's Prin. Laws of Scot., 7th ed., p. 934, § 2029 ; Cadell v. Black, 5 Paton, 567 ; Weem.s V. Mathieson, 4 Macqueen, 215.) Such also is the law of France. (28 Merlin, Repertoire, 442, verho Reparation Civile, § iv; Rolando. Oosse, 19 Sirey (Cour de Cassation) 269.) It is said also that such was the civil law, but this is denied by the Supreme Court of Louisiana in Hubgh v. The New Orleans dk Garollton Railroad, 6 La. Ann. 495 ; S. C. 54 Am. Dec. 565, where Chief Justice Eustis considers the subject in an elaborate opinion after full argument. A reargument of the same question was allowed in Hermann v. New Orleans c& CaroUton Railroad, 11 La. Ann. 5, and the same conclusion reached after another full argument. (See also Grueber's Lex Aquilia, 17.) But however this may be, we know of no country that has adopted a different rule on this subject for the sea from that which it maintains on the land, and the maritime law, as accepted and received by maritime nations generally, leaves the matter untouched. It is not mentioned in the laws of Oleron, of Wisbuy, or of the Hanse Towns, 1 Pet. Adm. Deo. Appx. ; nor in the Marine Ordinance of Louis XIV., 2 Pet. Adm. Dec. Appx. ; and the understanding of the leadino- text writers in this country has been that no such action will lie in the absence of a statute, giving a remedy at law for the wrong. (Benedict Adm., 2d ed., § 309 ; 2 Parsons' Ship. & Adm. 350 ; Henry, Adm. Jur. 74.) The argument everywhere in support of such suits in admiralty has been, not that the CH. III. § 2.,] HOUGHKIEK v. D. & H. C. CO. 59 maritime law, as actually administered in common-law coun- tries, is different from the common law in this particular, but that the common law is not founded on good reason, and is contrary to " natural equity and the general principles of law." Since, however, it is now established that in the courts of the United States no action at law can be maintained for such a wrong in the absence of a statute giving the right, and it has not been shown that the maritime law, as accepted and received by maritime nations generally, has established a dif- ferent rule for the government of the courts of admiralty from those which goTern courts of law in matters of this kind, we are forced to the conclusion ; that no such actions will lie in the courts of the United States under the general maritime law. The rights of persons in this particular under the mari- time law of this country are not different from those under the common law, and as it is the duty of courts to declare the law, not to make it,- we cannot change this rule. * 4f- 4f * * The decree of the Circuit Court is reversed, and the cause remanded, with instructions to dismiss the libel} STATUTORY DAMAGES FOB DEATH. HoUGHKIEK V. PeEs't, ETC. D. & H. 0. Co. (92 N. Y. 219. — 1883.) Henry Smith for appellant. E. Countryman for respondent. Finch, J. The jury in this case rendered a verdict of $5000 as their estimate of damages resulting to the next of kin from the death of a little girl killed by a switch engine of the defendant. The evidence showed that she was about six years old ; an only child ; bright, intelligent and healthy ; 1 Cf. Grosso V. By. Co., 50 N. J. L. 317. CO STATUTOEY DAMAGES FOE DEATH. [bk. i. and the daughter of a market gardener. This, and the cir- cumstances of her death, constituted the only proof bearing on the question of damages, and which served as a basis for the judgment of the jury in estimating the pecuniary loss suffered by the next of kin. The General Term declined to set aside the verdict as excessive, assigning as a reason in the opinions delivered that the doctrine of this court as to damages in such a case leaves it impossible to say in any instance that they are excessive, and involves an utter surrender of the right of the General Term to order a new trial for that reason. The defendant alleges error in this ruling, and insists that the ver- dict was wholly unwarranted by the evidence; that there was no proof of facts from which even a plausible conjecture of the amount of damages could be derived; that the verdict indicated partiality or prejudice ; and the case should be re- mitted to the General Term for the consideration which had been withheld. We have quite carefully examined the au- thorities cited in the opinion below {Ihl v. Forty-second St. Sao. R. E. Co., 47 N. T. 317 ; 7 Am. Eep. 450 ; Oldfield v. N. Y. c& H. R. R. Co., 14 N. Y. 310 ; O'Mara v. Hudson R. R. R. Co., 38 id. 445 ; McOovern v. N. Y. C. & H. R. R. R. Co., 67 id. 417) ; and nearly or quite all of the other cases bearing on the subject. Most of them recognize the difficul- ties inherent in suits founded upon the statute, and seek in good faith to make operative the will of the legislature in a new and before unknown class of actions. None of those decisions purport in any manner to narrow the right and dis- cretion of the General Term to set aside verdicts for excessive damages, but on the contrary all are consistent with its sur- vival, and some expressly recognize it. {Oldfield v. N. Y. <& Harlem R. R. Co., 14 IST. Y. 314; Hd v. Forty-second St. c&c. R. R. Co., 47 id. 321 ; 7 Am. Rep. 450.) Undoubtedly there are difficulties in the way of its judicious exercise, but so far as these exist they spring from the inherent nature of the subject, and obedience to the command of the legislature. The statute implies from the death of the person negligently killed damages sustained by the next of kin. {Qiim v. Moore, 15 N. Y. 432.) Eecognizing the generally prospective and indefinite character of those damages, and the impossibility of CH. in. § 2.] HOUGHKIEK u D. & H. C. CO. 61 a basis for accurate estimate, it allows a jury to give what they shall deem a just compensation, and limits their judg- ment to a sum not exceeding $5000. {Tilley r. Hudson Biv. E. R. Co., 29 N. Y. 252.) But within that range the jury is neither omnipotent, nor left wholly to conjecture. They are required to judge, and not merely to guess, and, therefore, such basis for their judgment as the facts naturally capable of proof can give should alway be present, and is rarely, if ever, absent. The pecuniary loss in any such case may be com- posed of very different elements. It may consist of special damages, that is of an actual, definite loss, capable of proof, and of measurement with approximate accuracy ; and also of prospective and general damages, incapable of precise and accurate estimate because of the contingencies of the un- known future. An example of such special and actual dam- ages occurred in the case of Murphy v. N. Y. Central <&c. R. E. Co., 88 N. Y. 446, where we allowed as one element of the total loss the funeral expenses of the deceased. To such an item the doctrine of Leeds v. Met. Gas-light Co., 90 ]Sr. Y. 26, would have a proper application. To prove merely that there were funeral expenses, and, without evidence of their character or amount, or even that they were usual and ordinary, to permit the jury to guess at their amount as an element of the total loss, would be to substitute conjecture for proof where proof was possible, and a proper basis of judg- ment attainable. But the value of a human life is a different matter. The damages to the next of kin in that respect are necessarily indefinite, prospective and contingent. They can- not be proved with even an approach to accuracy, and yet they are to be estimated and awarded, for the statute has so commanded. But even in such case there is and there must be some basis in the proof for the estimate, and that was given here and always has been given. Human lives are not all of the same value to the survivors. The age and sex, the general health and intelligence of the person killed, the situation and condition of the survivors and their relation to the deceased ; these elements furnish some basis for judgment. That it is slender and inadequate is true {Tilley v. Hudson River R. R. Co., sujora) ; but it is all that is possible and while that should 62 STATUTORY DAMAGES FOR DEATH. [bk. i. be given {McJntyre v. N. Y. Cent. R. R. Co., 37 N. Y. 289), more cannot be required. Upon tiiat basis, and from suuli proof the jury must judge, and having done so, it is possible, though not entirely easy, for the General Term to review such judgment and set it aside if it appears excessive, or the result of sympathy and prejudice. A difficult duty we grant ; but not for that reason to be abandoned. In its intrinsic nature it is no more difficult than to determine whether a verdict is excessive in an action for slander or libel where the injury is to reputation, or in actions where pain and suffering may be considered in ascertaining the loss. The Supreme Court has never abdicated its power of review in such cases and should not in those under the statute. The jury are compelled to judge.in an atmosphere freighted with sympathy. In the Gen- eral Term the deliberation may be more cool and thoughtful, and while the judgment of the trial court should not be lightly disturbed, it should not be held necessarily conclusive. But it is impossible for us to say that such error has been committed in the present case. We cannot go to the opinions delivered to ascertain, and must assume that the order which denied a new trial for excessive or partial damages, and which was affirmed by the General Terra, was made after due and proper consideration, and in the full performance of the duty of review which we have always upheld and have not at all narrowed or infringed.^ The judgment was reversed on another ground. Wooden v. Western N. Y. &c. Co. (26 N. E. Rep. 1060. — 1891. N. T. Ct. of App.) Appeal from superior court of Buffalo, General Term. John O. Milburn for appellant. ' Exemplary damages not recoverable unless statute permits. {Myers v. San Francisco, 42 Cal. 215; Houston & Go. v. Coioser, 67 Tex. 293.) Insur- ance policy not to be deducted from damages. {North Penn. Co. v. Kirk, 90 Penn. St. 15.) As to damages where deceased is minor, see Burton v. Chicago £c. liy., 55 la. 490 ; Johnson v. Chicago &c. Co., 64 Wis. 425. CH. III. § 2.] WOODEN V. WESTERN N. Y. &c. CO. 63 Harlow C. Curtiss for respondent. Finch, J. This appeal is from an interlocutory judgment overruling a demurrer and determining that the complaint assailed stated a good cause of action. That pleading alleged that the plaintiff was and is a resident of this State, and the defendant a corporation created and existing under our laws. The contest thus is between a resident individual and a do- mestic corporation. The latter owned and operated a line of railroad extending beyond our boundaries into the adjoining State of Pennsylvania, and the complaint alleged that in that State the plaintiff's husband was killed by the negligence of the defendant company. The complaint further averred that the statutes of that State gave a right of action for the injury sus- tained by the widow and children ; that the remedy could be enforced in the name of the former as plaintiff, but for her own benefit and that of the children ; and that such statute was of similiar import to that existing in our own jurisdiction. Judgment was thereupon demanded for damages in the sum of $20,000. The demurrer interposed, raised two objections : First, that the statutes of the two States were not similar, but different; and, second, that the action could not be maintained here in the name of the widow, but only in that of an executor or administrator of the deceased ; and the final result sought to be established was that the widow could not maintain an action in this State because that it is contrary to our statute, and that the administratrix could not because that is contrary to the Pennsylvania statute: and so there is no remedy what- ever in our jurisdiction. Certain propositions essential to the inqiiiry before us have been explicitly determined in McDonald v. Mallory, 77 N. Y. 546, and need no other citation for their support. That case held that the liability of a person for his acts, whether wrong- ful or negligent, depends in general upon the law of the place in which the acts were committed ; that actions for injuries to the person in another State are sustained here without proof of the lex loci, because they are permitted by the common law which is presumed to exist in the foreign State ; that such pre- sumption does not arise where the right of action depends 64 STATUTORY DAMAGES FOE DEATH. [bk. i. upon a statute which confers it ; and that in such case the action can only be maintained here by proof that the statutes of the State in which the injury occurred give the right of action, and are similar to our own. Upon the question of sim- ilarity we have also held that the two statutes need not be identical in their terms, or precisely alike, but it is enough if they are of similar import and character, founded upon the same principle, and possessing the same general attributes. {Leonard v. Navigation Co., 84 N. Y. 53.) It is quite evident that the two statutes are of similar import. They are founded upon the same principle, are aimed at the same evil, construct the same sort or kind of action, and give it for the benefit of the same class of individuals. In both the utter failure of re- dress at common law where the injury ended in death was the injustice for which a remedy was enacted; and in both the new action was given for the benefit of those who had suffered an injury as the consequence of the wrong. This funda- mental agreement in the main and substantial characteristics of the two statutes is not affected by the differences of detail which the demurrer points out. The first is that by the lex loci the proper person to bring this action, and the only per- son who can maintain it, is the widow ;. while by our law the right of action is given to the executor or administrator. But it is given to the latter not in his broad representative char- acter, but solely as trustee, in a case like the present, for the widow and children. {Ilegerich v. Keddie, 99 N. Y. 267.) It is not a right which survives to the personal representatives, but a right created anew. The real parties in interest, — those whose injury is redressed, whose right is vindicated, to whom all damages go, — are one and the same in both forums. If the formal parties are different, the substantial and real par- ties are identical, and the difference in the trustee appointed by the law to represent their right is not such a difference as to bar our tribunals from their jurisdiction, or make the two statutes dissimilar under the rule. It is claimed, however, that, even in that event, the right of action accruing in the place of the transaction can only be enforced in our jurisdiction under our remedial forms, and so should have been brought by the plaintiff, not as a widow, but CH. HI. § 2.] WOODEN V. WESTERN N. Y. &c. CO. 65 as administratrix, to which ofiBce she had been appointed in this State. But it must not be forgotten that the cause of action sued upon is the cause of action given by the lex loci, and vindicated here and in our tribunals upon principles of comity. (84 N. Y. 53, supra.) That cause of action is given to the widow in her own right and as trustee for the children, and we open our courts to enforce it in favor of the party who has it, and not to establish a cause of action under our statute which never in fact arose. We refer to the lex fori, and meas- ure it by and compare it with the lex loci, I think, for two reasons, ■ — • one, that the party defendant may not be subjected to different and varying responsibilities ; and the other, that we may know that we are not lending our tribunals to enforce a right which we do not recognize, and which is against our own public policy ; and we do not refer to our law as creating the cause of action which we enforce. It is the cause of ac- tion created and arising in Pennsylvania which our tribunals vindicate upon principles of comity ; and, therefore, must be prosecuted here in the name of the party to whom alone be- longs the right of action; and that rule the courts of Penn- sylvania enforce where the cause of action arises here, by permitting it to be brought by the executor or administrator to whom by our law the right is given, although not by their own. ( Usher v. Railroad Co., 126 Pa. St. 207 ; 17 Atl. Rep. 597.) But the second difference relied on is that in Pennsylvania there is no restriction upon the amount of damages which may be recovered, while in our State they cannot exceed $5000. That restriction pertains to the remedy, rather than the right. {Denniclc v. Railroad Co., 103 U. S. 11.) It is a limitation upon the discretion of the jury in fixing the amount of damages, but not upon the right of action, or its inherent elements and character. The restriction indicates our public policy as to the extent of the remedy, and the plaintiff who chooses to avail herself of our remedial procedure must submit to our remedial limitations, and be content with a judgment beyond which our courts cannot go. They cannot exceed it in a case arising here, and no principle of comity requires them to en- large the remedy which the plaintiff voluntarily seeks. There may be — there very possibly is — an exception to that rule, 5 66 MASTEE AND SERVANT. [bk. i. resting upon its own peculiar reasons, in a case where the defendant is not, as here, a domestic corporation, formed under our law, and so entitled to the benefit of our remedial limita- tions, but is a corporation of the State within whose jurisdic- tion the cause of action arose, and by whose law no restriction upon the amount of damages is permitted or enacted. We do not decide that question ; but the same reasoning which would expose such a corporation to the law of its own jurisdiction would serve equally to justify the right of the domestic cor- poration to be protected by the remedial limitations of its jurisdiction. The difference between the two statutes, there- fore, does not strictly affect the rule of damages, but rather the extent of damages ; and that extent, as limited or unlim- ited, does not enter into any definition of the right enforced, or the cause of action permitted to be prosecuted ; and so the causes of action in the two forums are not thereby made dis- similar. These views lead to an affirmance of the interlocu- tory judgment. All concur.^ SECTIONS. MASTER AND SERVANT. Hyde v. Cooper. (26 Vt. 662. — 1854.) Trespass for an ox. In this case an officer had sold prop- erty on execution without sufficient notice, and the plaintiff in the execution was sued on the theory that he had adopted the officer's tort. The only evidence of adoption was that before the sale he had expressed the opinion that the notice was suf- ficient, and that he received the money on the execution. Cooper <& Bavtlett for defendant, J. H. Prentiss for plaintiff. 1 A less liberal policy obtains in some States, partly because of their stat- utes, e.g. Taylor's Adm!r. v. Finn. Co., 78 Ky. 348 ; 39 Am. R. 244 ; Davis v. N. Y. & N. JE. By., 143 Mass. 801 ; Oates v. Union Pac. Ry. Co., 16 S. W. 487 (Mo.). CH. III. § 3.] HYDE V. COOPER. 67 Redfield, Ch. J. ***** No doubt, if the officer takes the property of one man, upon another's debt, or sells at private sale, and the creditor accepts the money, knowing the facts, he may be Hable for the acts of the officer. But in such case the acts are not regarded as offi- cial. But it would scarcely be consistent, with sound reason, to apply the same rule to all the acts of an officer. It would be almost equivalent to exonerating the officer from all official responsibility. The views here expressed are strongly confirmed, by the de- cision in the case of Abbott v. Kimball, 19 Vt. 551. As a gen- eral rule, perhaps, where the mistake is one of fact, and such as makes the officer a trespasser, and the party knowing all the facts, consents to take the avails of a sale, or where he counsels the very act which creates the liability of the officer, he is implicated, to the same extent as the officer. But when the party does not direct or control the course of the officer, but requires him to proceed at his peril, and the officer makes a mistake of law in judging of his official duty, whereby he becomes a trespasser, even by relation, the party is not af- fected by it, even when he receives money, which is the result of such irregularity, although he was aware of the course pursued by the officer. He is not liable, unless he consents to the officer's course, or subsequently adopts it. And if he does that he cannot maintain an action against the officer for doing the act, and the consequence would be, that if receiving the avails of a sale on execution were to be regarded, in all cases, as amounting to a ratification of the conduct of the officer in the sale, it must preclude the creditor from all suit against the officer on that account, which has never been so regarded. The party may always take money, which the officer informs him he has legally collected, without assuming the responsibility of indorsing the perfect legality of the entire detail of the offi- cer's official conduct in the matter. For if the officer is compelled to refund to the debtor, on account of his irregularity of procedure, that will not affect the right of the creditor to retain the money. He is still entitled to retain the money against the officer. And the 68 WHO IS A SERVANT. [bk. i. party cannot claim the money of the creditor without thereby affirming the sale. So that the creditor's accepting the amount of money for which the property sold, is no more a ratification of the conduct of the officer, than if he took the money of the officer on any other liability. The money is the officer's, whether he was a trespasser or not, and he is at all events liable to the creditor. If the sale was irregular, that is his loss, he must still pay the creditor, and accepting the money is but taking pay for the officer's liability to the creditor, for his default in the sale, if it was irregular. So that in any view of the case, there is no ground of implicating the defendant.! Judgment affirmed. WHO IS A SERVANT. LiNNEHAN V. Rollins. (137 Mass. 123.— 1884.) ToET, against the owners in trust of an estate on Wash- ington street, in the city of Boston, for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendants, or of their servants or agents, by the fall of a derrick. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows : There was evidence tending to show that the injury to the plaintiff was caused by the negligence of the workmen employed by one Elston, who had a written contract with the defendants, by which he agreed "to take down the entire building known as the Adams House in said Boston, belong- ing to said trustees, or so much thereof as the trustees may request ; " and which also provided as follows : " All of said work to be done carefully, and under the direction and sub- ject to the approval of the trustees." The plaintiff also offered some evidence of negligence on the 1 Lewis V. Read, 13 M. & W. 834; Dally v. Young, 13 111. App. 39; Dunn v. H. &a. By. Co. , 43 Conn. 434. CH. III. § 3.] LINNEHAN v. EOLLINS. 69 part of one Wentworth, who was employed by the defendant ; which evidence was contradicted by other witnesses. There was also evidence that one or more of the defendants were present nearly every day, and gave directions as to the work being performed ; and evidence contradicting this. The defendants had employed Elston to perform part of the work in taking down the building named in the contract, and had also employed Wentworth and other persons to do other parts of taking down said building. The judge instructed the jury upon the effect of said con- tract as follows ; "The plaintiff contends that there was negligence both on the part of Wentworth and the men under his employ in placing this derrick, and on the part of Elston in removing this derrick. So far as regards Wentworth, the relation in which he stands to the defendants is a matter of verbal proof, and the principles which I have given you are to be applied in determining upon the evidence what that rela- tion was. So far as Elston is concerned, the relation in which he stood to the defendants at the outset is a matter of written contract, and where there is a written contract between par- ties, the construction of that written contract is a matter of law. This contract implies in substance that Elston is to take down the entire building known as the Adams House, or so much thereof as the trustees may request ; and, in conclusion, that all of the work is to be done carefully, and under the direction and subject to the approval of the trustees. This contract gives the defendants the right to control and direct the action of Elston. It is not simply a provision that the. work must finally meet their approval before they pay him, but it is a provision that, in the first instance, he is to take down just so much of it as they desire, and that he is to do the work of taking down under their direction. There is no other mode of construing it than so as to mean that he, by this contract, was subject to their orders as to the time and manner and mode of doing the work ; than they had the right to step in and say to him, ' You are not doing this as we directed you to do it. We direct you to do thus and so, and we direct you to do this in the other way.' That seems to me, as far as the contract is concerned, to bring the case within TO WHO IS A SEEVANT. [bk. i. the relation of master and servant, so far as Elston and the defendants are concerned. You will observe that, although there has been evidence introduced upon the one side and the other, as to the actual control which the trustees, through one of their number, exercised over the work, and that is all proper and competent evidence for you in considering the matter, yet that the absolute test is not the exercise of power of control, but the right to exercise power of control. If, for instance, there was nothing in the case but this contract, and there was no question that the parties were acting under it, if that is the view you take of it, and that the injury was occasioned by the negligence of Elston, then, although the trustees should be across the Atlantic, nevertheless, under the instructions I give you, if they retained the power to control and direct the work, they would be liable; because it is the possession of the right of interference, the right of control, that puts upon a party the duty of seeing that the person who stands in that relation does his duty properly. If they have retained to themselves the right of directing the mode of doing the work, then, if the work is done wrong, the simple principle is that they are responsible." The jury returned a verdict for the plaintiff, in the sum of $5500 ; and the defendants alleged exceptions. W. B. Gale and J. W. Rollins for the defendants. S. B. Allen and J. R. Murphy for the plaintiff. Field, J. "Whether an owner of a building retains such con- trol over work to be done and the manner of doing it as to render himself responsible for injuries occasioned by the negli- gence of the contractor and his employees in the performance of the work, depends upon the construction to be given to the contract. [Erie v. Caulkins, 85 Penn. St. 247 ; Railroad v. Hanning, 15 Wall. 649 ; Eaton v. European cfe North American Railway, 69 Maine, 520; Cincinnati v. Stone, 5 Ohio St. 38; Newton v. Ellis, 5 El. & Bl. 115 ; Blahe v. Thirst, 2 H. & C. 20.) In this case, for the reasons given in the instructions, we CH. III. § 3.] MAIEE V. RANDOLPH. 71 think the defendants are liable for injuries occasioned by the negligence of Elston and his employees in doing the work which the defendants requested Elston to do. {Railroad v. Banning, ubi supra ; Cla/pp v. Kemp, 122 Mass. 481 ; Brackett V. Lubke, 4 Allen, 138 ; Brooks v. Somerville, 106 Mass. 271 ; Forsyth v. Hooper, 11 Allen, 419 ; Eirnball v. Cushman, 103 Mass. 194.) Exceptions overruled,} SCOPE OF AUTHORITY. Maiee V, Randolph. • (33 Kb. 340.— 1885.) C. If. Sterry for plaintiff in error. W. A. Randolph for defendant in error. The opinion of the court was delivered by Yalentine, J.: This action was commenced by W. A. Ran- dolph and A. G. Randolph, partners as Randolph & Randolph, against Frank Maier, before a justice of the peace, and, after judgment, the case was appealed to the district court, in which court it was again tried, before the court and jury, and judg- ment was rendered in favor of the plaintiffs and against the defendant, for the sum of $144, and for costs. The defend- ant, as plaintiff in error, now brings the case to this court. The case was tried in the district court upon the bill of par- ticulars filed in the justice's court, which alleges, in substance, ■ as follows : The plaintiffs owned a two-year-old thoroughbred Shorthorn bull, and the " defendant, by his employee and agent, without the knowledge and consent of the said plaintiffs, 1 The general rules on this subject are well stated in Lawrence, v. Shipman, 39 Conn. 586; of. Cuff v. Newark &c. Ry. Co., 35 N. J. L. 17; 10 Am. R. 205. For a learned discussion of the question when is the employer liable for the negligent act of an independent contractor, see dissenting opinion of Dwight, C, in McCafferty v. S. D. & P. M. Ry. Co., 61 N. Y. 178. 72 SCOPE OF AUTHOEITY. [bk. i. killed said bull ; that said plaintiffs were damaged by the kill- ing of said bull in the sum of $250." We think the bill of par- ticulars presents a cause of action. ***** We think the evidence showed liability on the part of the defendant. A principal, or master, or employer, is usually liable to third parties for the acts or negligence of his agent or servant while acting within the scope of his employment. Plere the defendant instructed his servant to go to a certain place at a certain time and kill a beef. The servant went to such place, at such time, and, finding no animal there except the plaintiff's bull, killed the bull, skinned him, dressed him, and hung his carcass up in the slaughter-house as a beef. Evidently the servant was honestly attempting to obey the master's order, and evidently the servant thought that he was doing so ; but he was honestly mistaken. A " beef," according to Webster's Dictionary, may be either a bull, a cow or an ox. The servant was all the time acting for the master, and he killed this bull while in the execution of his master's business, and within the scope of his employment ; and therefore his master is liable. Judgment reversed on other grounds. Cohen v. D. D. &o. Ey. Co. (69N.Y. 170, — 1877.) Appeal from order of the General Term of the Superior Court of the city of New York, reversing a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial, and granting a new trial. (Eeported below, 8 J. & S. 368.) This action was brought to recover damages alleged to have been sustained by reason of the negligence of plaintiff's ser- vant. On April 27, 1872, plaintiff was driving along Catharine street, in the city of New York, in a buggy. He had crossed the track of defendant's road, but before the rear part of the CH. III. § 3.] COHEN V. B. D. &c. RY. CO. 73 buggy was far enough from the track so that a car could pass without striking it, his further progress was arrested by a blockade of trucks and other vehicles, and he was unable to move forward, and by other vehicles he was prevented from moving in any direction. A car approached on defendant's road, the driver of which, as plaintiff testified, after waiting a moment or two, told the plaintiff to "get off the track." The plaintiff asked him to wait until the trucks moved, promis- ing then to move. The driver said, " Damn you, if you don't get off here ; I am late ; I will get you off some way or other." The plaintiff said, " You wait a moment ; I guess the trucks are moving and I may go." The trucks started and as the plain- tiff prepared to move on, the driver started his horses and the platform of the car struck the hind wheels of the buggy and overturned it, thus causing the injury complained of. Defendant's counsel moved for a nonsuit on the ground, among others, that the car-driver's act was not within the scope of his authority, but was an unlawful and unauthorized act, for which defendant was not responsible. John M. Scribner, Jr., for the appellant. Julius Lipman for the respondent. Pee Cpkiam. The general rule of law contended for by the appellant, that a master cannot be held liable for the wilful, intentional and malicious act of his servant, whereby injury is caused to a third person, is not disputed. Many limitations and illustrations of the rule will be found in reported cases, and it is not always easy to apply the rule. It has recently been under consideration in this court in the case of Rounds v. The Delaware Lack, cfc Western R. R. Co., 64 N. Y. 129, and in the opinion of Andrews, J., in that case, is found a very thorough and satisfactory consideration of the rule and the principles upon which it is founded. The general principles there announced are as follows : To make a master liable for the wrongful act of a servant to the injury of a third person, it is not necessary to show that he expressly authorized the particular act. It is sufficient to show that the servant was 74 SCOPE OF AUTHOEITY. [bk. i. engaged at the time in doing his master's business, and was acting within the general scope of his authority, and this, although he departed from private instructions of the master, abused his authority, was reckless in the performance of his duty, and inflicted unnecessary injury. While the master is not responsible for the wilful wrong of the servant, not done with a view to the master's service, or for the purpose of executing his orders; if the servant is authorized to use force against another, when necessary, in executing his master's orders, and if, while executing such orders, through miscon- duct or violence of temper, the servant uses more force than is necessary, the master is liable. The master who puts the servant in a place of trust or re- sponsibility, or commits to him the management of his busi- ness or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances of the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another. The master is not exempt from responsibility in all cases on showing that the servant, without express authority, designed to do the act or the injury complained of. But if the servant, under the guise and cover of executing his master's orders, and executing the authority conferred upon him, wilfully and designedly, for the purpose of accomplishing his own inde- pendent, malicious or wicked purposes, does an injury, then the master is not liable". When it is said that the master is not responsible for the wilful wrong of the servant, the language is to be understood as referring to an act of positive and designed injury not done with a view to the master's service, or for the purpose of exe- cuting his orders. The application of these principles to the facts of this case leaves no doubt that the case was properly disposed of by the General Term of the Supreme Court. The driver was driving this car for the defendant, and in its business. As the car could only run upon the railroad track, it was his duty, so far as he reasonably and peaceably could, to overcome obstacles CH. III. § 3.] CEISPIN V. BABBITT. Y5 on the track in the way of his car ; and in driving his car and overcoming these obstacles, he was acting within the general scope of his authority. If he acted recklessly (and that is the most that can be said here), the defendant was responsible for his acts. He was not seeking to accomplish his own ends. He was seeking to make his trip on time, and for that pur- pose, and not for any purpose of his own, sought to remove plaintiff's buggy from the track. It cannot be said to be clear, upon the facts proved, that the act of the driver was done with a view to injure the plaintiff, and not with a view to his master's service. He may have supposed that the plain- tiff would get off from the track in time, or that he could crowd him off without injury. The evidence should at least have been submitted to the jury. They were the proper judges of the motives and purposes of the driver, and of the character and quality of his acts. The order must be affirmed and judgment absolute ordered against the defendant with costs. Order affirmed and judgment accordingly} All concur. FELLO W-SEB VANTS. Ceispin v. Babbitt. (81N.T. 516. — 1880.) Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial. This action was brought to recover damages for injuries alleged to have been sustained by defendant's negligence. At the time of the accident, plaintiff was working as a 1 Cf. Isaacs v. Third Ave. Ry. Co., 47 N. Y. 122; Golden v. Newlrand, 52 la. 69; Gilliam v. South & C. Ry., 70 Ala. 268; Toledo &c. Ry. v. Harmon, 47 111. 297; Wright v. Wilcox, 19 Wend. 343; Levi v. Brooks, 121 Mass. 501 ; Haack v. Fearing, 4 Abb. N. S. 297. 76 FELLOW-SEEVANTS. [bk. i. laborer in the iron works of the defendant, at Whitesboro, Oneida County. Plaintiff had assisted to draw a boat into a dry dock connected with the works; after the boat was in the dry dock, it became necessary to pump out the water; this was done by means of a pump, worlced by an engine. While plaintiff, with others, was engaged in lifting the fly wheel of the engine off its centre, one John L. Babbitt carelessly let the steam on and started the wheel, throwing the plaintiff on to the gearing wheels, and thus occasioning the injuries com- plained of. Defendant lived in the city of New York, coming about once a month, for a day or two, to the iron works, of which, as the evidence tended to show, said Babbitt had gen- eral charge ; being at one time the general superintendent and manager, at another time styled " business and financial man." The substance of the evidence, as to the position occupied by Babbitt, and the particulars of the accident, are fully set forth in the dissenting opinion of Earl, J. The defendant's counsel requested the court to charge, among other things, as follows : " 13th. That although John L. Babbitt may, as financial agent or superintendent, or overseer or manager, have repre- sented defendant and stood in his place, he did so only in respect of those duties which the defendant had confided to him as such agent, superintendent, overseer or manager." The court so charged. " 14th. That as to any other acts or duties performed by him in or about the defendant's works at Whitesboro, or in or about the defendant's business at said works, he is not to be regarded as defendant's representative, standing in his place, but as an employee or servant of the defendant, and as a fellow- servant of the plaintiff." The court refused so to charge, saying: "I will leave that as a question of fact for the jury." " 17th. That if John L. Babbitt did let on the steam while plaintiff was engaged at the wheel, he was not, in so doing, acting in the defendant's place, but his act in so doing was his own act, and not the act of the defendant." The court refused so to charge, leaving this also for the jury- To the refusals to charge, defendant's counsel duly excepted. CH. in. § 3.] CEISPIN v. BABBITT. 77 A. J. Vanderpool for appellant. Nicholas E. Kernan for respondent. Rapallo, J. The liability of a master to his servant for injuries sustained while in his employ, by the wrongful or negligent act of another employee of the same master, does not depend upon the doctrine of respondeat superior. If the employee whose negligence causes the injury is a fellow-servant of the one injured, the doctrine does not apply. {Conway v. Belfast cbc. Ry. Go., 11 Irish C. L. 353.) A servant assumes all risk of injuries incident to and occur- ring in the course of his employment, except such as are the result of the act of the master himself, or of a breach by the master of some term, either express or implied, of the contract of service, or of the duty of the master to his servant, viz. : to employ competent fellow-servants, safe machinery, etc. But for the mere negligence of one employee, the master is not responsible to another engaged in the same general service. The liability of the master does not depend upon the grade or rank of the employee whose negligence causes the injury. A superintendent of a factory, although having power to em- ploy men, or represent the master in other respects, is, in the management of the machinery, a fellow-servant of the other operatives. {Albro v. Agawam Canal Co.,, 6 Cush. 75 ; Conway V. Belfast Ry. Co., supra; Wood's Master and Servant, § 438. See, also, §§ 431, 436, 437.) On the same principle, however low the grade or rank of the employee, the master is liable for injuries caused by him to another servant, if they result from the omission of some duty of the master, which he has confided to some inferior employee. On this principle the Flike case (53 'S. Y. 549) was decided. Church, Ch. J., says, at page 553: " The true rule, I apprehend, is to hold the corporation liable for negligence in respect to such acts and duties as it is re- quired to perform as master, without regard to the rank or title of the agent intrusted with their performance. As to such acts the agent occupies the place of the corporation, and the latter is liable for the manner in which they are per- formed." 78 FELLOW-SERVAFTS. [bk. i. The liability of the master is thus made to depend upon the character of the act in performance of which the injury arises, without regard to the rank of the employee performing it. If it is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance. The converse of the proposition necessarily follows. If the act is one which pertains only to the duty of an operative, the employee performing it is a mere servant, and the master, although liable to strangers, is not liable to a fellow-servant, for its improper performance. (Wood's Master and Servant, § 438.) The citation which the court read to the jury from 21 Am. Kep. 2, does not conflict with, but sustains this proposi- tion ; it sa3^s : " Where the master places the entire charge of his business in the hands of an agent, the neglect of the agent in supplying and maintaining the suitable instrumentalities for the work required is a breach of duty for which the master is liable." These were masters' duties. In so far as the case from which the citation is made goes beyond this, I cannot reconcile it with established principles. In England, by a late act of Parliament, the rules touching the point now under con- sideration have been modified in some respects, but in this State no such legislation has been had. The point is sharply presented in the present case, bjj^ the 13th, 14th and 17th requests to charge. 13th. That although John L. Babbitt may, as financial agent or superintendent, overseer or manager, have represented defendant, and stood in his place, he did so only in respect of those duties which the defendant had confided to him as such agent, superinten- dent, overseer or manager. This the court charged. 14th. That as to any other acts or duties performed by him in and about the defendant's works or business at said works, he is not to be regarded as defendant's representative, stand- ing in his place, but as an employee or servant of the defend- ant, and a fellow-servant of the plaintiff. This the court refused to charge, but left as a question of fact to the jury, and defendant's counsel excepted. I think this was a question of law, and that the court erred in sub- mitting it to the jury, but should have charged as requested. CH. HI. § 3.] CEISPIN V. BABBITT. 79 The court was further specifically requested to charge that in letting on the steam John L. Babbitt was not acting in defendant's place. ThiSj I think, was a sound proposition, as applied to the present case. It was the act of a mere opera- tive, for which the defendant would be liable to a stranger, but not to a fellow-servant of the negligent employee. As between a master and servant it was servant's, and not mas- ter's duty to operate the machinery. The judgment should ie reversed.^ 1 In an elaborate dissenting opinion, with which Danforth and Pinch, JJ., concurred. Earl, J., rejected the doctrine that an employee could sus- tain the dual relationship of vice-principal and fellow-servant, citing Berea Stone Co. v. Kraft, 31 Ohio St. 287. The same view is taken in Oormly v. Vulcan Iron Works, 61 Mo. 492. The doctrine of the principal case Is gen- erally followed. (See Quinn v. N. J. L. Co., 23 Fed. 363 ; Doughty v. Penobscot &C. Co., 76 Me. 143; Benson v. Goodwin, 147 Mass. 237.) Chicago &c. Co. v. Ross reports a different rule and is criticised in Loughlin v. State, 105 N. Y. 159. A different rule applies where the master is not the same, though employment is common. (Kelly v. Johnson, 128 Mass. 530 ; Louisville &c. Co. V. Conroy, 63 Miss. 652 ; Phillips v. Chicago &c. Co., 64 Wis. 475.) As to liability of employer for failure to malie proper rules, see McQovern V. C. V. Ry. Co., 123 N. Y. 280 ; Ford v. L. S. & M. S. By., 124 N. Y. 493. For failure to provide safe place to work, Arkerson v. Dennison, 117 Mass. • 407. For failure to provide safe machinery, McGinnis v. Can. S. Ry., 49 Mich. 466; S Am. & E. Ky. Cases, 135 with note. For failure to warn of danger, Coombs v. iV. B. Cordage Co., 102 Mass. 572 ; 3 Am. R. 506. For statutory chauges in the law of co-service in the U. S., see 6 L. Q. Rev. 189. 80 EXCEPTIONS : JUDICIAL ACTS. Tbk. i. CHAPTER IV. EXCEPTIONS, SECTION 2. JUDICIAL ACTS. Grove v. Van Duyii. (44 N. J. L. 654. — 1882.) This was an action for trespass for assault and unlawful imprisonment. The defendant, Cornelius Van Duyn, pleaded the general issue of hot guilty to the declaration, which was in its usual form in trespass, for assault and unlawful imprisonment. The defendant, Charles L. Stout, also pleaded the general issue to the said declaration, and gave the notice of special matter in evidence under said plea, setting up that he was one of the justices of the peace of the county of Middlesex, , and that upon the sworn complaint of Cornelius Van Duyn, he issued his warrant in the ordinary form, directing the per- sons named in the complaint to be brought before him to answer; and such three persons having been arrested by a constable, on such warrant, and being brought before said justice, and having waived an examination, were by him committed to the jail of the county for the cause mentioned in the complaint, to await the action of the next grand jur}^. Having given bail the next day the persons so arrested were discharged, and thereupon one of them, William H. Grove, Jr., brought this suit in trespass for the above mentioned im- prisonment. At the trial the plaintiff was nonsuited, and to review that judgment this writ of error was brought. For the plaintiff in error, A. V. Schenck and E. T. Oreen. For the defendants in error, J. H. Stewart. CH. IV. § 2.] GROVE V. VAN DUYN. 81 The opinion of the court was delivered by Beasley, Ch. J. Most of the general principles of law per- taining to that branch of this controversy which relates to the alleged liabihty of the defendant in this suit, who was a jus- tice of the peace, are so completely settled as not to be open to discussion. The doctrine that an action will not lie against a judge for a wrongful commitment, or for an erroneous judgment, or for any other act made or done by him in his judicial capacity, is as thoroughly established as are any other of the primary maxims of the law. Such an exemption is absolutely essential to the very existence, in any valuable form, or of the judicial office itself ; for a judge could not be either respected or independent if his motives for his official actions or his conclusions, no matter how erroneous, could be put in question at the instance of every malignant or disappointed suitor. Hence we find this judicial immunity has been con- ferred by the laws of every civilized people. That it exists in this State in its fullest extent, has been repeatedly declared by our own courts. Such was pronounced by the Supreme Court to be the admitted principle in the case of Little v. Moore, 1 South. T5 ; Taylor v. Doremus, 1 Harr. 473 ; Mangold v. Thorpe, 4 Yroom, 134 ; and by this court in Loftus v. Fraz, 14 Yroom, 667. To this extent there is no uncertainty or difficulty what- ever in the subject. But the embarrassment arises where an attempt is made to express with perfect definiteness when it is, that acts done by a judge and which purport to be judicial acts, are such within the meaning of the rule to which reference has just been made. It is said everywhere in the text-books and decisions, that the officer, in order to entitle himself to claim the immunity that belongs to judicial conduct, must restrict his action within the bounds of his jurisdiction, and jurisdiction has been defined to be " the authority of the law to act officially in the partic- ular matter in hand." (Cooley on Torts, 417.) But these max- ims, although true in a general way, are not sufficiently broad to embrace the principle of immunity that appei'tains to a court or judge exercising a general authority. Their defect is that 6 82 EXCEPTIONS : JUDICIAL ACTS. [bk. i. they leave out of the account all those cases in which the officer in the discharge of his public duty is bound to decide whether or not a particular case, under the circumstances as presented to him, is within his jurisdiction, and he falls into error in arriving at his conclusion. In such instance, the judge, in point of fact and law, has no jurisdiction according to the definition just given, over " the particular matter in hand," and yet, in my opinion, very plainly he is not responsible for the results that wait upon his mistake. And it is upon this precise point that we find confusion in the decisions. There are certainly cases which hold that if a magistrate in the reg- ular discharge of his functions, causes an arrest to be made under his warrant on a complaint which does not contain the charge of a crime cognizable by him, he is answerable in an action for the injury that has ensued. But I think these cases are deflections from the correct rule, they make no al- lowance for matters of doubt and difficulty. If the facts presented for the decision of the justice are of uncertain signification with respect to their legal effect, and he decides one way, and exercises a cognizance over the case; if the superior court in which the question arises in a suit against the justice differs with him on this close legal question, is he open, by reason of his error, to an attack by action ? If the officer's exemption from liability, is to depend on the question whether he had jurisdiction over the particular case, it is clear that such officer is often liable under such conditions, because the higher court, in deciding a doubtful point of law, may have declared that some element was wanting in the com- plaint which was essential to bring this case within the judicial competency of the magistrate. But there are many decisions which, perhaps, without defining any very clear rule on the subject, have maintained that the judicial officer was not liable under such conditions. The very copious brief of the counsel of the defendants abounds in such illustrations. As an ex- ample, we may refer to the old case of Gwynne v. Poole, 2 Lutw. 387, in which it was held that the justice was justified because he had reason to believe that he had jurisdiction, al- though there was an arrest in an action which arose out of the justice's jurisdiction. This case has been since approved in CH. IV. § 2.] GROVE V. VAN DUYN. 83 Kemp V. Neville, 10 C. B. (K S.) 550. Here, if > the test of. official liability had been the mere fact of the right to take cognizance over the particular matter in hand, considered in the light of strict legal rules, this decision would have been the opposite of what it is. In the same way the subject is elucidated in Brittain v. Kinnard, 1 B. &. B. 432, the facts being a conviction by a justice of a person of having gun- powder in a certain ioat, a special act authorizing the detention of any suspected ioat ^ and when the magistrate was sued in trespass for an illegal conviction, it was declared that the plaintiff, in order to show the defendant's want of cogni- zance over the proceedings leading to the conviction, could not give evidence that the craft in question was a vessel and not a boat, because the justice had judicially determined that point. And in this case likewise, the test of jurisdiction in the magistrate in point of fact and of law, was rejected ; an inquiry into the authority, by force of which the proceedings had been taken, being disallowed for the reason that such ques- tion had been passed by the magistrate himself, the point be- ing before him for adjudication. The same doctrine was pro- mulged in explicit aud forcible terms by Mr. Justice Field, delivering the opinion of the Supreme Court of the United States, in the case of Bradley v. Fisher, 13 Wall. 335, this be- ing his language : " If a judge of criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which it is not, and proceed to the arrest and trial of a party charged with such act, ... no personal liability to civil ac- tion for such acts would attach' to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him ; for these are particulars for his judicial consideration, whenever this general jurisdiction over the sub- ject matter is invoked." These decisions, in my estimation, stand upon a proper footing, and many others of the same kind might be referred to, but such course is not called for, as it must be admitted that there is much contrariety of results in this field, and the references above given are amply sufficient as illustrations for my present purposes. The assertion, I think, may be safely 84: EXCEPTIONS : JUDICIAL ACTS. [bk. i. made, that the great weight of judicial opinion is in opposi- tion to the theory that if a judge, as a matter of law^ and fact, has not jurisdiction over the particular case, that thereby, in all oases, he incurs the liability to be sued by any one injuriously affected by his assumption of cognizance over it. The doctrine that an officer having general powers of judica- ture, must, at his peril, pass upon the question, which is often one difficult of solution, whether the facts before him place the given case under his cognizance, is as unreasonable as it is impolitic. Such a regulation would be applicable alike to all courts and to all judicial officers acting under a general au- thority, and it would thus involve in its liabilities all tribunals except those of last resort. It would also subject to suit per- sons participating in the execution of orders and judgments rendered in the absence of a real ground of jurisdiction. By force of such a rule, if the Supreme Court of this State, upon a writ being served in a certain manner, should declare that it acquired jurisdiction over the defendant, and judgment should be entered by default against him, and if, upon error brought, this court should reverse such judgment on the ground that the service of the writ in question did not give the inferior court jurisdiction in the case, no reason can be assigned why the justices of the Supreme Court should not be liable to suit for any injurious consequence to the defendant proceeding from their judgment. As I have said, in my judg- ment, the jurisdictional test of the measure of judicial re- sponsibility must be rejected. Nevertheless, it must be conceded that it is also plain that in many cases a transgression of the boundaries of his jurisdiction by a judge, will impose upon him a liability to an action in favor of the person who has been injured by such excess. If the magis- trate should, of his own motion, without oath or complaint being made to him, on mere hearsay, issue a warrant and cause an arrest for an illegal larceny, it cannot be doubted that the per- son so illegally imprisoned could seek redress by a suit against such officer. It would be no legal answer for the magistrate to assert that he had a general cognizance over criminal offences, for the conclusive reply would be, that particular case was not, by any form of proceeding, put under his authority. CH. IV. § 2.] GROVE V. VAN DUYK 85 From these legal conditions of the subject my inference is, that the true general rule with respect to the actionable re- sponsibility of a judicial oflBoer having the right to exercise general powers, is, that he is so responsible in any given case belonging to a class over which he has cognizance, unless such case is by complaint or other proceeding put at least colordbly under his jurisdiction. Where the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer is not liable in a suit to a person affected by his decision, whether such decision be right or wrong. But when no facts are pres- ent, or only such facts as have neither legal value nor color of legal value in the affair, then, in that event, for the magistrate to take jurisdiction is not, in any manner, the performance of a judicial act, but simply the commission of an unofficial wrong. This criterion seems a reasonable one; it protects a judge against the consequences of every error of judgment, but it leaves him answerable for the commission of wrong that is practically wilful; such protection is necessary to the inde- pendence and usefulness of the judicial officer, and such re- sponsibility is important to guard the citizen against official oppression. The application of the above-stated rule to this case must, obviously, result in a judgment affirming the decision of the Circuit Judge. There was a complaint, under oath, before this justice, presenting for his consideration a set of facts to which it became his duty to apply the law. The essential things there stated were, that the plaintiff, in combination with two other persons, " l^^ith force and arms," entered upon certain lands, and " with force and arms did unlawfully carry away about four hundred bundles of cornstalks, of the value," etc., and were engaged in carrying other cornstalks from said lands. By a statute of this State (Eev. p. 244, Sec. 99), it is declared to be an indictable offence, " if any person shall wil- fully, unlawfully and maliciously" set fire to or burn, carry off or destroy any barrack, cock, crib, rick or stack of hay, corn, wheat, rye, barley, oats or grain of any kind, or any trees, herbage, growing grass, hay or other vegetables, etc. Now, although the misconduct described in the , complaint is 86 EXCEPTIONS : EXECUTIVE ACTS. [bk. i. not the misconduct described in this act, nevertheless the question of their identity was colorably before the magistrate, and it was his duty to decide it ; and under the rule above formulated, he is not answerable to the person injured for his erroneous application of the law to the case that was before him. As to the other defendant, all he did was to make his com- })laint on oath before the justice, setting forth the facts truly, and for such an act he could not be held liable for the judicial action which ensued, even if such action had been extra-judi- cial. But as the case was, as we have seen, brought within the jurisdiction of the judicial officer, neither this defendant, nor any other person could be treated as a trespasser for his co-operation in procuring a decision and commitment which were Valid in law, until they had been set aside by a superior Let the judgment 5e affirmed. EXCEPTIONS, SECTION 3. EXECUTIVE ACTS. CoENELL V. Barnes. fTHill, 35. — 1844.) On error to the Columbia common pleas. Barnes brought an action against Richard Cornell and three others in a jus- tice's court, and declared as follows : " The plaintiff complains against the defendants for that heretofore, to wit, in the spring of 1840, Richard Cornell was duly elected a constable of the town of Chatham, in the county of Columbia ; and afterwards, to wit, etc., and previous to his entering upon the discharge of the duties of said office, etc., the said Cornell, 1 Cf. Vaughn v. Congdon, 66 Vt. 3; 48 Am. R. 758, when complaint showed on its face that the ofifence was "barred by the Statute of Limitations, and justice held liable; but see dissenting opinion. Also Lange v. Benedict, 37 N. Y. 12 ; 29 Am. U. 80, and criticism in 15 Am. L. Rev. 441. Writ of error in this case dismissed (99 U. S. 68), because it presented no Federal question. Its doctrine applied to arbitrators in Jones v. Brown, 54 la. 74. CH. IV. § 3.] CORNELL v. BARNES. 87 and the other defendants above named, as his sureties, did, by their writing, jointly and severally agree to pay to each and every person who should be entitled thereto, all such sums of money, as the said constable might become liable to pay on account of any execution delivered to him for collection ; and afterwards, to wit, etc., an execution was issued on a judgment rendered before John Trimper, esquire, then and now one of the justices of the peace of said county, in favor of the said plaintiff against James Walker, a resident of the town of Chatham in said county, on a promissory note, for $26.71, damages and costs, which said execution was delivered to the said Cornell, constable as aforesaid, to be by him executed ac- cording to law ; yet the said Cornell wholly neglected to col- lect and execute said execution as therein directed, and wholly neglected to make return of the same within the time limited by law ; whereby he, the said Cornell and his sureties, become liable to pay to the said plaintiff the amount of said execu- tion, with interest, etc.," but have not paid, etc. The defend- ants demurred to the declaration, assigning for cause, among other things, that it did not set forth enough to show jurisdic- tion on the part of the justice who rendered the alleged judg- ment, either in respect to the person or the subject matter. The plaintiff joined in demurrer, and the justice gave judg- ment in his favor ; whereupon the defendant appealed to the common pleas. The latter court affirmed the judgment of the justice, and the defendants sued out a writ of error. O. W. Bulkley for the plaintiffs in error. C. P. Schermerhorn for the defendant in error. By the court. Beaedslet, J. In order to maintain this suit, the plaintiff was bound to show that the constable had be- come liable to pay the whole or some part of the money for which the execution was issued. Such are the precise terms of the instrument executed by the defendants, and so is the statute on the subject. (1 E. S. 346, § 21.) A constable may serve an execution which is regular on its face, although issued upon a judgment rendered without jurisdiction; for he may 88 EXCEPTIONS : EXECUTIVE ACTS. [bk. i. rely upon his process, and is not bound to see that jurisdiction has been acquired. But although such is the right of the oJHcer, he is under no legal obligation to serve the process ; and its invalidity is always a good answer to an action brought against him for refusing to execute it. (Earl v. Gamjp^ 16 Wend. 567-8, and the oases there cited.) Process from a court of special and limited authority cannot be deemed valid in favor of the party who procured it to be issued, until it is shown that complete jurisdiction existed. Hence to make out a right of action in the present case, the plaintiff was bound to show that the justice who rendered the judgment on which the execution issued, had jurisdiction of the subject matter, and of the person of the defendant. The declaration shows that the justice had jurisdiction of the sub- ject matter, for it alleges that the action was brought to recover the amount of a promissory note ; but it fails to show that juris- diction over the person had been acquired. For this purpose it was necessary to aver either that the party appeared, or that process was sued out and duly served on him. The declaration contains no averment of this nature, and the judg- ment of the court below should be reversed. Judgment reversed. O'Shaughnesst v. Baxtee. (121Mass. 615. — 1877.) L. M. Child for the plaintiff. J. Bennett for the defendant. Geay, Ch. J. This is an action of tort against a constable of Boston for an assault and false imprisonment. The mate- rial facts of the case, as they appear from the statements in the report and the findings of the jury, are as follows : This plain- tiff, whose real name is John O'Shaughnessy, was sued by the name of John Shaughnessy, a name by which he was com- monly known, upon a promissory note signed by another person of that name, and not by himself. The person who CH. IV. § 3.] O'SHAUGHNESSY v. BAXTER. 89 made the writ knew that the plaintiff was not the person who signed the note, but intended to have the writ served upon him, and it was served upon him by another constable, and entered in the court having jurisdiction thereof, which ren- dered judgment, upon his default, for the plaintiff in that action, and issued execution accordingly, in due form of law. The execution, with the proper certificates, was delivered to this defendant, with instructions to take this plaintiff and commit him to jail. The defendant did so, in obedience to such instructions, and in good faith, after ascertaining that the original writ had been served upon the plaintiff, but knowing that he was not the person who signed the note upon which the action was brought. On this state of facts, the plaintiff, being the party against whom the writ was intended to be made, and on whom it was actually served, was the party defendant therein, and the person against whom the judgment^. was rendered, and the execution issued. Whatever remedies he might have to re- lieve him from the judgment and execution as obtained by fraud, or to recover damages against the person who fraudu- lently abused the process of the court, the officer, acting in good faith, had the right to rely for his protection upon the process put into his hands, and was not bound to go behind that process, and to assume the risk of determining the ques- tion whether the plaintiff really signed the note upon which the action was brought, or the truth of any extrinsic fact which would exempt him from being arrested or imprisoned upon the execution. {Laroohe v. Wasbrmigh, 2 T. E. 737, 739 ; Magnay v. Burt, 5 Q. B. 381 ; S. C. Dav. & Meriv. 652 ; Wilmarth v. Burt, 7 Met. 257; Twitchellw Shaw, 10 Cush. 46 ; Underxoood v. Robinson, 106 Mass. 296, and other cases here cited.) In the words of Chief Justice Parker, " The diffi- culty in such cases is, to ascertain whether the judgment was or was not, in fact, rendered against the person who is taken in execution ; for if it was, although the person was mistaken, yet the officer would be justified." (Eallowell d; Augusta Bank v. Howard, 14 Mass. 181, 183.) The fact that this plaintiff was commonly known by the name by which he was sued and arrested, distinguishes the 90 EXCEPTIONS : QUASI JUDICIAL ACTS. [bk. i. case from those in which one man has been arrested upon a writ against another of a different name. (See Cole v. Hindson, 6 T. K. 234 ; Finch v. Cooken, 5 Tyrwh. 774, 785 -,8.0.^ Dowl. 678, 686 ; Oriswold v. Sedgwick, 1 Wend. 126, 132 ; Lomgmmd v. Puffer, 7 Gray, 378.) Judgment on the verdict for the plaintiff. EXCEPTIONS, SECTION 4. QUASI JUDICIAL ACTS. Stewaet et al. v. Southard. (17 Ohio, 402. — 1848.) The original action was case. In the declaration Southard avers that he was resident, etc., of school district No. 1, in the township of Paint, in which a common school was taught; that he had sons and daughters of the proper age which he was desirous to have taught at said school ; that the defend- ants (now plaintiffs in error), at the time, etc., were school directors of said district, and contriving, etc., to deprive him of the benefit of having his said children educated, etc., at said district school, wrongfully admitted certain colored children into said school, whereby he was deprived of the benefit and advantages of having his children taught at the same, and has been put to great trouble and expense in pro- curing them to be taught and educated. To this declaration the defendant demurred. His attorney adds to the demurrer this : " all objection to form and substance waived. The only question to be raised to be the constitutionality of the school law." The court of com- mon pleas overruled the demurrer. The defendant plead the general issue. The cause was submitted to the court and judgment rendered for the plaintiff for twenty-five dollars. Two errors are assigned — 1st. That the declaration is insufficient. 2d. That judgment was given for plaintiff when it should have been given for defendants. Robert Rohinson and J. II. Thompson for plaintiffs in error. CH. IV. § 4.] STEWART v. SOUTHARD. 91 J. Z. Green, Thurman & Sherer for defendant in error. ") BiECHARD, Ch. J. This is in the nature of an action for mis- behavior of a public officer in the discharge of his duty. The acts complained of are not charged to have been done either wilfully or maliciously. The most that can be made of the averments of the declaration when tried upon a demurrer is, that the plaintiffs in error, while acting in their corporate capacities as directors of a school district, misjudged the, law and acted erroneously. " There is no instance of an action of this sort maintained, for an act arising merely from an error of judgment." {Harmcm v. Tappender, 1 East's Rep. 555.) In Ramsey v. Riley, 13 Ohio Rep. 157, this court held that an officer acting within the scope of his duty is only responsible for an injury resulting from a corrupt motive. These prin- ciples are clearly applicable and must be conclusive of the merits of this declaration, unless we should depart from them. "We are not induced to do so unless required by the authority of our own decisions. The case of Lane v. Baker, 12 Ohio Rep. 238, is presented as a decision directly in point, as opposed to the rule above stated. The only thing decided in that case was, that youth of more than half white blood are entitled to the benefit of the common school fund. No question seems to have been raised touching the sufficiency of the declaration, and had there been, we think that after verdict (the state in which the question was presented) that declaration would have been held sufficient. This declaration, under our statute, is to be tried on demurrer. The difference between testing the suffi- ciency of a declaration on demurrer, or after verdict, is too distinct to need remark. On demurrer, the intendment is against the pleader. After verdict it is in support of the pleading. So that in the latter case a good title defectively set forth is cured. In Lane v. Baker, the declaration avers a clear right in Lane to send his children to the school, avers it was supported by the common school fund, that he sent his children, who were white, to the school, and that the direct- ors, well knowing the premises and contriving and wrongfully intending to injure him, and to deprive him of his just rights, 92 EXCEPTIONS : QUASI JUDICIAL ACTS. [bk. i, turned said children out of said school. I concurred in that decision, and have always thought it went far enough and should not be extended. It is true the special verdict, in that case, does not find a corrupt motive or malice, but as said above, the object of taking it in that form was to present the simple question whether a child more white than black was entitled to share in the common school fund, and in point of fact no other question was discussed and decided in that case. But, by this remark, we do not mean to question or cause doubts of the correctness of the decision in Lane v. Baker, for there is a distinction between turning a scholar out of school who has a just right to be there, and thus inflicting a positive injury, by depriving him of a privilege which ought to be re- garded inestimable, and admitting erroneously into the school such scholars as may possibly render this privilege less desir- able. The one is a positive denial of a right, the other is an act which possibly may annoy one in the exercise of a right. The one is an injury which is tangible and can be measured, the other is a different character. A distinction akin to this was taken va. Jeffries ^ . Ankeny et al., 11 Ohio Hep. 374, in which, although the doctrine of general immunity of trustees of townships, when acting without a corrupt motive, is fully recognized, as a general rule, yet they were there held liable for erroneously refusing a lawful vote without proof of malice, upon the ground that the law afforded no other adequate remedy — that necessity demanded it. It would hardly fol- low, from the fact that Jeffries was allowed to maintain his action for the erroneous refusal of the trustees to receive his vote; that he would be entitled to maintain an action against a board of trustees who should erroneously receive the vote of an alien, whereby his vote was naturalized. Much less, if in consequence of the alien's voting he should stay away from the polls and refuse to vote, would he be allowed to sue and aver that thereby he was deprived of the elective franchise. Still, this last supposed case of Jeffries would not be more novel than this action brought by Southard. That would be a case of first impression, and so is this. That, in principle, would be unlike anything before known, and so is this, for in principle they are alike. If an action could be maintained CH. IV. § 4] WASSON v.- MITCHELL. 93 against the trustees of townships by any voter who woul refuse voting merely because they had erroneously received the votes of aliens, or if one could be maintained against school directors by any person who withdraws his children in consequence of an error committed through conscientious and mistaken notions of duty, or through ignorance, it is easy to foresee that it would be difficult to procure men to accept such offices. The danger of being annoyed or perhaps ruined by vexatious prosecutions would be too great to justify a prudent man in hazarding the risk. Were we to take a stride beyond the cases of Jeffries v. Ankney, and of Lane v. Baker, strong enough to sustain such action, we should place it in the power of captious persons to break up probably three-fourths of the schools in the State. If suit may be maintained for an error in admitting colored children (and we think it was probably wrong), it must be on a principle that will enable every member of the school district to maintain an action for the same, or for any other mistake in the discharge of their duties. No necessity demands the establishing of such a P P ■ Judgment reversed and demurrer sustained. Wasson v. Mitchell. (18 la. 153. — 1864.) Demtteeee to petition. The defendants constituted the board of supervisors of Polk county in 1861. The petition alleges that, as such board, the defendants, at their regular meeting in January, 1861, " carelessly and negligently required, accepted and approved the official bond of one H. H. Helton 1 Election ofBcers perform ministerial and not judicial functions, unless the latter are conferred by a statute. In New York their functions are purely ministerial. {People ex rel- Stapleton v. Bell et al., 119 N. Y. 175, following Dwight, C. in Goetchus v. Matthewson, 61 N. Y. 420, whose opinion contains an exhaustive and valuable discussion of the subject.) The liability of club ofiicers for the expulsion of members is considered in People ex rel. Deverell v. Musical M. P. Z7., 118 N. Y. 101. 94: EXCEPTIOI^S : QUASI JUDICIAL ACTS. [bk. i. as constable for the township of Des Moines, in Polk county, given for the year 1861, said bond not being such as was reasonable and necessary for the faithful discharge by the said Helton of his official duties, nor such as was required by law, for that the said bond did not have any sureties thereon, the names of ' A. N. Marsh ' and ' C. C. Van ' having leen forged thereto, they never having signed the said bond or authorized their names to be placed thereon." " That the said A. N. Marsh was notoriously insolvent at the time, and known to be so by the defendants." The petitioner then alleges his injury in this : that Helton collected money for him on execu- tion, converted the same to his own use and died insolvent ; that Marsh has absconded, and that in an action by the plain- tiff against said C. C. Van on said bond, the latter was adjudged not liable thereon, because his name had been forged thereto. The defendants demurred to the petition because they were not personally liable for acts done in their official capacity ; that no cause of action was stated against them, etc. Demurrer sustained, and the plaintiff appeals. « J. F. Seeley for the appellant. John Mitchell for appellees. Dillon, J. The allegations of the petition are not as precise and clear as they ought to be, when questioned by demurrer. Upon a fair construction, the petition may be taken to allege, in substance, that the names of both sureties on the official bond of Helton, as constable, were forged, and that the defend- ants approved of it, carelessly and negligently, that is, the defendants would have known of the forgery, had it not been for their neglect or want of care. And it is also alleged, that one of the persons whose names appeared on the bond as surety was notoriously insolvent, and known to be so by the defend- ants, when they approved the bond. Upon the assumption that this is the true construction of the petition, we place our decision. The statute is imperative in requiring that the official bond CH. IV. § 4.] WASSON V. MITCHELL. 95 of a constable " shall be given with at least two sureties," and in requiring that these sureties shall be freeholders. (Rev. §§ 558, 592.) " The surety in every bond," it is further provided, " must be a resident of the State, worth double the sum to be secured beyond the amount of his debts, and have property liable to execution in this State equal to the sum to be secured. Where there are two or more sureties in the same bond, they must, in the aggregate, have the qualifications prescribed in this section." (Rev. § 4126.) Constables must give bonds in the penal sum, to be fixed by the board of supervisors, by an order of record. (Rev. § 557.) This board has power to re- quire constables •' to give such bonds and additional bonds as shall be reasonable or necessary for the faithful performance of their several duties ; " and may remove any county officer who neglects or refuses to give such bond. (Rev. § 312, cl. 10.) And the board are charged by law with the duty of approving the bonds of constables. (Rev. § 560.) These various provisions evince the care and solicitude of the legislature to protect the public by requiring ample and sufficient bonds from public officers. Plow useless these provisions, and how unavailing these intended safeguards, if the approving board or officer could, under no circumstances and in no possible event, be held liable for omission or neglect of duty. As to the general rules of the law, there is no great dispute. Thus, a judicial officer is not liable civilly for judicial acts, un- less it may be (a point on which the authorities are not in accord) where he acts wilfully, maliciously or corruptly. (Several authorities cited.) And these authorities show that this exemp- tion from civil responsibility extends to all public officers who are charged with deciding upon matters of a quasi judicial nature ; and we have no doubt that it extends, in general, to a body, such as the board of supervisors, under our statute. The ground of this exemption is that the public good can best be secured by allowing officers charged with the duty of deciding upon the rights of others " to act upon their own free, unbiased convictions, uninfluenced by any apprehensions." On the other hand, the rule is equally well settled, that, for the misfeasance or nonfeasance of a ministerial officer, the party injured may have redress by civil action. This broad 96 EXCEPTIONS : QUASI JUDICIAL ACTS. [bk. i. distinction between judicial and ministerial acts, however plain in theory, is, in many cases, very difficult of application. Thus, is the act of approving of a bond judicial or ministerial ? The only way to reconcile the cases is to hold that it may be either ; depending, perhaps, upon the general nature of the duties of approving officer. For example, it is " a well-settled rule of American law and practice, that an action lies against a sheriff for taking insufficient bail." (2 Hilld. on Torts, 276, § 4, and cases cited.) But it is held that a justice of the peace is not liable who acts in good faith for misdeciding that a married woman is competent to contract and sign a bond as surety {Howe V. Mason, 14 Iowa, 510), or for error of judgment; there being no intentional fault in taking a recognizance to prosecute an appeal in a form not authorized by law, and there- fore, invalid — the proper form having been rendered by the course of legislation, adifficult and perplexing question. {Chick- ering v. Eohinson, 3 Cush. 543.) We would not hold the board of supervisors to be absolute guarantors of the genuineness of the signatures to official bonds. They may, in the course of business, refer such mat- ters to a committee, to examine and report. It is only neces- sary that they or their committee shall act in good faith, and with reasonable care and prudence. If, in the fair exercise of their judgment, they are of opinion that the sureties on a bond are solvent, thej"^ are not civilly liable if they should be mis- taken ; but would be thus liable if they approved a bond whose sureties were known to them to be worthless. So they would have no right to approve a bond without any sureties what- ever. Such an act, knowingly or carelessly done, could not be regarded as a judicial act, in such a sense as to exempt them from civil liabilities to any person thereby injured. {Smith v. Trawl, 1 Eoot (Conn.) 165 ; with which Phelps v. Sill, 1 Day, is not inconsistent.) Without extending our remarks, we may observe that this court has given the subject much con- sideration ; and we believe this to be the true rule, viz. : exempting the board of supervisors, in the approval of bonds, from honest mistake and errors of judgment, whether of law or fact, but holding them at the same time personally liable for negligence, carelessness and official misconduct such as are CH. IV. § 7.] B. & P. EY. CO. V. F. B. CHURCH. 97 alleged in the petition. This rule is the only one which will protect the public, and at the same time occasion no interest or embarrassment of which a conscientious and faithful public officer will or can justly complain. If the plaintiff can estab- lish the allegations of his petition, we are of the opinion that he ought to recover ; wherefore the judgment of the District Court sustaining the demurrer thereto is r, ^ ° Jteversed. EXCEPTIONS, SECTION 7. AUTHORIZED ACTS. B. & P. Ey. Co. v. F. B. Chuech. (108 U.S. 317. — 1883.) Action in the nature of an action on the case to recover damages for the discomfort occasioned by the establishment of a building for housing the locomotive engines of a railroad company, contiguous to a building used for Sunday-schools and public worship by a religious society. Mr. Enoch Totten for the plaintiff in error. Mr. R. T. Merrick and Mr. J. J. Darlington for defendant in error. Me. Justice Field delivered the opinion of the court. If the facts are established which the evidence tended to prove, and from the verdict of the jury we must so infer, there can be no doubt of the right of the plaintiff to recover. The engine house and repair shop of the railroad company, as they were used, rendered it impossible for the plaintiff to occupy its building with any comfort as a place of public worship. The hammering in the shop, the rumbling of the engines pass- ing in and out of the engine house, the blowing off of steam, the ringing of bells, the sounding of whistles, and the smoke from the chimneys, with its cinders, dust and offensive odors, created a constant disturbance of the religious exercises of the 98 EXCEPTIOISrS : AUTHOETZED ACTS. [bk. i. church. The noise was often so great that the voice of the pastor while preaching could not be heard. The chimneys of the engine house being lower than the windows of the church, smoke and cinders sometimes entered the latter in such quan- tities as to cover the seats of the church with soot and soil the garments of the worshippers. Disagreeable odors, added to the noise, smoke and cinders, rendered the place not only uncomfortable but almost unendurable as a place of worship. As a consequence, the congregation decreased in numbers, and the Sunday-school was less numerously attended than pre- viously. Plainly the engine house and repair shop, as they were used by the railroad company, were a nuisance in every sense of the term. They interfered with the enjoyment of property which was acquired by the plaintiff long before they were built, and was held as a place for religious exercises, for prayer and wor- ship ; and they disturbed and annoyed the congregation and Sunday-school which assembled there on the Sabbath and on different evenings of the week. That is a nuisance which annoys and disturbs one in the possession of his property, ren- dering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrong-doer, and when the cause of the annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance. {Crump v. Lambert^ L. E. 3 Eq. 409.) The right of the plaintiff to recover for the annoyance and discomfort to its members in the use of its property, and the liability of the defendant to respond in damages for causing them, are not affected by their corporate character. Private corporations are but associations of individuals united for some common purpose, and permitted by the law to use a common name, and to change its members without a dissolution of the association. Whatever interferes with the comfortable use of their property, for the purposes of their formation, is as much the subject of complaint as though the members were united by some other than a corporate tie. Here the plaintiff, the Fifth Baptist Church, was incorporated that it might hold and use an edifice erected by it, as a place' of public worship for its CH. IV, § 7.] B. & P. RY. CO. V. F. B. CHURCH. 99 members and those of similar faith meeting with them. "What- ever prevents the comfortable use of the property for that pur- pose by the members of the corporation, or those who, by its permission, unite with them in the church, is a disturbance and annoyance, as much so as if access by them to the church was impeded and rendered inconvenient and difficult. The purpose of the organization is thus thwarted. It is sufficient to maintain the action to show that the building of the plain- tiff was thus rendered less valuable for the purposes to which it was devoted. The liability of the defendant for the annoyance and dis- comfort caused is the same also as that of individuals for a similar wrong. The doctrine which formerly was sometimes asserted, that an action will not lie against a corporation for a tort, is exploded. The same rule in that respect now applies to corporations as to individuals. They are equally respon- sible for injuries done in the course of their business by their servants. This is so well settled as not to require the citation of any authorities in its support. It is no answer to the action of the plaintiff that the railroad company was authorized by act of Congress to bring its track within the limits of the city of Washington, and to construct such works as were necessary and expedient for the comple- tion and maintenance of its road, and that the engine house and repair shop in question were thus necessary and expedient ; that they are skilfully constructed ; that the chimneys of the engine house are higher than required by the building regula- tions of the city, and that as little smoke and noise are caused as the nature of the business in them will permit. In the first place, the authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them wherever it might think proper in the city, with- out reference to the property and rights of others. As well might it be contended that the act permitted it to place them immediately in front of the President's house or of the Capitol, or in the most densely populated locality. Indeed, the corpo- ration does assert a right to place its works upon property it may acquire anywhere in the city. 100 EXCEPTIOIsrS : AUTHOEIZED ACTS. [bk. i. "Whatever the extent of the authority conferred, it was accompanied with this implied qualification, that the works should not be so placed as by their use to unreasonably inter- fere with and disturb the peaceful and comfortable enjoyment of others in their property. Grants of privileges or powers to corporate bodies, like those in question, confer no license to use them in disregard of the private rights of others, and with immunity for their invasion. The great principle of the com- mon law, which is equally the teaching of Christian morality, so to use one's property as not to injure others, forbids any other application or use of the rights and powers conferred. Undoubtedly a railway over the public highways of the District, including the streets of the city of Washington, may be authorized by Congress, and if, when used with reasonable care, it produces onl}"- that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars, with the noises and disturbances necessarily attending their use, no one can complain that he is incommoded. What- ever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damnum absque injuria. The private inconvenience in such case must be suffered for the public accommodation. But the case at bar is not of that nature. It is a case of the use by the railroad company of its property in such an unreasonable way as to disturb and annoy the plaintiff in the occupation of its church, to an extent rendering it uncomfort- able as a place of worship. It admits indeed of grave doubt whether Congress could authorize the company to occupy and use any premises within the city limits, in a way that would subject others to physical discomfort and annoyance in the quiet use and enjoyment of their property, and at the same time exempt the company from the liability to suit for dam- ages or compensation, to which individuals acting without such authority would be subject under like circumstances. Without expressing any opinion on this point, it is sufficient to observe that such authority would not justify an invasion of others' property, to an extent which would amount to an entire deprivation of its use and enjoyment, without compen- sation to the owner. Nor could such authority be invoked to '*•/ VN '^f SEP ^^^ CH. IV. § 7.] B. & P. EY. CO. V. F. B. CHUECH. \ \ ^^1 justify acts, creating physical discomfort and annoyam others in the use and enjoyment of their property, to a less extent than entire deprivation, if different places from those occupied could be used by the corporation for its purposes, without causing such discomfort and annoyance. The acts that a legislature may authorize, which, without such authorization, would constitute nuisances, are those which affect public highways or public streams, or matters in which the public have an interest and over which the public have control. The legislative authorization exempts only from lia- bility to suits, civil and criminal, at the instance of the State ; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large. Thus, in Sinnickson v. Johnson, 2 Harr. N. J. at 151, it was held by the Supreme Court of New Jersey that an act of the legislature authorizing an individual to erect a dam across a navigable water constituted no defence to an action for dam- ages for an overflow caused by the dam. " It may be lawful," said the court, " for him (the grantee of the power) and his assignees to execute this act, so far as the public interests, the rights of navigation, fishing, etc., are concerned, and he may plead, and successfully plead, the act to any indictment for a nuisance, or against any complaint for an infringement of a public right, but cannot plead it as a justification for a private injury which may result from the execution of the statute." In Crittenden v. Wilson, 5 Cow. 165, it was held by the Supreme Court of I^ew York that an act authorizing one to build a dam, on his own land, upon a creek or river which was a public highway, merely protected him from indictment for a nuisance. If, said the court, there had been no express pro- - vision in the act for the payment of damages, the defendant would still have been liable to pay them, and the effect of the grant was merely to authorize the defendant to erect a dam, as he might have done, if the stream had been his own, with- out a grant. In such a case he would have been responsible in damages for all the injury occasioned by it to others. In Brown v. Cayuga c&c. BaiVroad Compcmy, 12 N. T. 486, 102 EXCEPTIONS: AUTHOEIZED ACTS. [bk. i. the company was sued for overflowing plaintiff's land by means of a cut through the banks of a stream which its road crossed. It pleaded authority by its charter to cross highways and streams, and that the cut in question was necessary to the construction and maintenance of the road. But it was held that the company was liable for damages caused. "It would be a great stretch," said the court, "upon the language, and an unwarrantable imputation upon the wisdom and justice of the legislature, to hold that it imports an authority to cross the streams in such a manner as to be the cause of injury to others' adjoining property." And so the court adjudged that the company was under the same obligation as a private owner of the land and stream, had he bridged it ; and that the right granted to bridge the stream gave no immunity for damages which the excavation of its banks for that purpose might cause to others. In Commonwealth v. Kidder, in the Supreme Court of Massachusetts, 107 Mass. 188, a statute of that State author- ized the storage, keeping, manufacture and refining of crude petroleum or any of its products in detached and properly ventilated buildings, specially adapted to that purpose ; and it was held that it did not justify the refining of petroleum at any place, where a necessary consequence of the manufacture was the emission of vapors which constitute a nuisance at com- mon law by their unwholesome and offensive nature. Numerous other decisions from the courts of the several States might be cited in support of the position that the grant of powers and privileges to do certain things does not carry with it any immunity for private injuries which may result directly from the exercise of those powers and privileges. If, as asserted by the defendant, the noise, smoke and odors, which are the cause of the discomfort and annoyance to the plaintiff, are no more than must necessarily arise from the nature of the business carried on with an engine house and workshop as ordinarily constructed, then the engine house and workshop should be so remodelled and changed in their struct- ure as to prevent, if that be possible, the nuisance complained of; and if that be not possible, they should be removed to some other place where, by their use, the plaintiff would not CH. IV. § 7.] B. & P. RY. CO. V. F. B. CHURCH. 103 be thus annoyed and disturbed in the enjoyment of its prop- erty. There are many places in the city sufficiently distant from the church to avoid all cause of complaint, and yet suf- ficiently near the station of the company to answer its pur- poses. There are many lawful and necessary occupations which by the odors they engender, or the noise they create, are nui- sances when carried on in the heart of a city, such as the slaughtering of cattle, the training of tallow, the burning of lime and the like. Their presence near one's dwelling-house would often render it unlit for habitation. It is a wise police regulation, essential to the health and comfort of the inhabi- tants of a city, that they should be carried on outside of its limits. Slaughter-houses, lime-kilns, tallow-furnaces are, there- fore, generally removed from the occupied parts of a city, or located beyond its limits. No permission given to conduct such an occupation within the limits of a city would exempt the parties from liability for damages occasioned to others, however carefully they might conduct their business. (Msh v. Dodge, 4 Denio, 311.) The fact that the smoke stacks of the engine house were as high as the city regulations for chimneys required, is no answer to the action, if the stacks were too low to keep the smoke out of the plaintiff's church. In requiring that chim- neys should have a certain height, the regulations did not prohibit their being made higher, nor could they release from liability if not made high enough. It is an actionable nui- sance to build one's chimney so low as to cause the smoke to enter his neighbor's house. If any adjudication is wanted for a rule so obvious, it will be found in the cases of Sampson v. Smith, 8 Sim. 271, and Whitney v. Ba/rtholomew, 21 Conn. 212. The instruction of the court as to the estimate of damages was correct. Mere depreciation of the property was not the only element for consideration. That might, indeed, be entirely disregarded. The plaintiff was entitled to recover because of the inconvenience and discomfort caused to the congregation assembled, thus necessarily tending to destroy, the use of the building for the purposes for which it was erected and dedicated. The property might not be depreciated 104 EXCEPTIONS : INEVITABLE ACCIDENT, [bk. i. in its salable or market value, if the building had been entirely closed for those purposes by the noise, smoke and odors of the defendant's shops. It might then, perhaps, have brought in the market as great a price to be used for some other pur- pose. But, as the court below very properly said to the jury, the congregation had the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort and annoyance in its use for those purposes which is the primary consideration in allowing dam- ages. As with a blow on the face, there may be no arith- metical rule for the estimate of damages. There is, however, an injury, the extent of which the jury may measure. Judgment affirmed. EXCEPTIONS, SECTION 8. INEVITABLE ACCIDENT. Beown 1). Collins. {53N.H. 442. — 1873.) Teespass, by Albert H. Brown against Lester Collins, to recover the value of a stone post on which was a street lamp, situated in front of his place of business in the village of Til- ton. The post stood upon the plaintiff's land, but near the southerly line of the main highway leading through the village and within four feet of said line. There was nothine to indicate the line of the highway, nor any fence or other obstruction between the highway, as travelled, and the post. The highway crosses the railroad near the place of accident, and the stone post stood about fifty feet from the railroad track at the crossing. The defendant was in the highway, at or near the railroad crossing, with a pair of horses loaded with grain, going to the grist mill in Tilton village. The horses became frightened by an engine on the railroad near the crossing, and by reason thereof became unmanageable, and ran, striking the post with the end of the pole and breaking it off near the ground, destroying the lamp with the post. No CH. IV. § 8.] BROWK V. COLLIJSrS. 105 other injury was done by the accident. The shock produced by the collision with the post threw the defendant from his seat in the wagon, and he struck on the ground between the horses, but suffered no injury except a slight concussion. The defendant was in the use of ordinary care and skill in man- aging his team, until they became frightened as aforesaid. The foregoing facts were agreed upon for the purpose of raising the question of the right of the plaintiff to recover in this action. Rogers for the plaintiff. Barnard c& Sanborn for the defendant. Doe, J. It is agreed that the defendant was in the use of ordinary care and skill in managing his horses, until they were frightened ; and that they then became unmanageable, and ran against and broke a post on the plaintiff's land. It is not ex- plicitly stated that the defendant was without actual fault, -^ that he was not guilty of any malice, or unreasonable unskil- fulness or negligence ; but it is to be inferred that the fact was so; and we decide the case on that ground. We take the case as one where, without actual fault in the defendant, his horses broke from his control, ran away with him, went upon the plaintiff's land, and did damage there, against the will, intent and desire of the defendant. . Sir Thomas Raymond's report of Lambert it Olliot v. Bessey, T. Eaym. 421, and Bessey v. Olliot c& Lambert, T. Raym. 467, is, "The question was this : A gaoler takes from the bailiff a prisoner arrested by him out of the bailiff's jurisdiction, whether the gaoler be liable to an action of false imprison- ment and the judges of the common pleas did all hold that he was ; and of that opinion I am, for these reasons. " 1. In all civil acts, the law doth not so much regard the intent of the actor, as the loss and damage of the party suffer- ing; and therefore Mich. 6 E. 47, a. pi. 18. Trespa^i^s quare vi (& arm/is clausum f regit, c§ herbam suam pedibus calcando consumpsit in six acres. The defendant pleads that he hath an acre lying next the said six acres, and upon it a hedge of 106 EXCEPTIONS : INEVITABLE ACCIDENT, [bk. i. thorns, and he cut the thorns, and, they, ipso invito, fell upon the plaintiff's land, and the defendant took them off as soon as he could, which is the same trespass ; and the plaintiff de- murred ; and adjudgedfor the plaintiff; for though a man doth a lawful thing, yet, if any damage do thereby befall another, he shall answer for it, if he could have avoided it. As if a man lop a tree and the boughs fall upon another, ipso invito, yet an action lies. If a man shoot at butts, and hurt another unawares, an action lies. I have land through which a river runs to your mill, and I lop the fallows growing upon the river side, which accidentally stop the water, so as your mill is hindered, an action lies. If I am building my own house and a piece of timber falls on my neighbor's house and breaks part of it, an aption lies. If a man assault me, and I lift up my staff to defend myself, and, in lifting it up hit another, an action lies by that person, and yet I did a lawful thing. And the reason of all these cases is, because he that is damaged ought to be recompensed. But otherwise it is in criminal cases, for there actus nonfacit reum nisi mens sit rea. " Mich. 23, Car. 1 B. K. ; Stile 72, Guilhert v. Stone. Tres- pass for entering his close and taking away his horse. The defendant pleads that he, for fear of his life, by threats of twelve men, went into the plaintiff's house and took the horse. The plaintiff demurred ; and adjudged for the plaintiff, because threats could not excuse the defendant and make satisfaction to the plaintiff. " Hob. 134, Weaver v. Ward. Trespass of assault and bat- tery. The defendant pleads that he was a trained soldier in London, and he and the plaintiff were skirmishing with their company, and the defendant, with his musket, casualiter da per infortunium di contra voluntatem suam in discharging of his gun hurt, the plaintiff, and resolved no good plea. So here though the defendant knew not of the wrongful taking of the plaintiff, yet that will not make any recompense for the wrong the plaintiff hath sustained. But the three other judges resolved that the defendant, the gaolor, could not be charged, because he could not have notice whether the prisoner was legally arrested or not." In Fletcher v. Rylands, L. K. 3 H. L. 330, Lord Cran- CH. IV. § 8.] BEOWN" V. COLLINS. 107 worth said, — " in considering whether a defendant is liable to a plaintiff for a damage which plaintiff may have sustained, the question in general is not whether the defendant has acted with due care and caution, but whether his acts have occasioned the damage. This is all well explained in the old case of Zam- hert V. Bessey, reported by Sir Thomas Eaymond (Sir T. Eaym.. 421). And the doctrine is founded on good sense. For when one person, in managing his own affairs, causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer." The head-note of Weaver\.Ward, Hob. 134, is, — "If one trained soldier Wound another, in skirmishing for exercise, an action of trespass will lie, unless it shall appear from the de- fendant's plea that he was guilty of no negligence, and that the injury was inevitable." The reason of the decision, as reported, was this : " For though it were agreed, that if men tilt or tourney in the presence of the king, or if two masters of defence playing their prizes kill one another, that this shall be no felony ; or if a lunatic kill a man, or the like ; because felony- must be done animo felonico ; yet in trespass, which tends only to give damages according to hurt or loss, it is not so ; and therefore if a lunatic hurt a man, he shall be answer- able in trespass ; and therefore no man shall be excused of a trespass (for this is the nature of an excuse, and not of a justi- fication, prout ei hene licuit), except it may be judged utterly without his fault; as if a man by force take my hand and strike you ; or if here the defendant had said that the plaintiff ran across his piece when it was discharging; or had set forth the case with the circumstances, so as it had appeared to the court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt." There may be some ground to argue that " utterly without his fault," " inevitable," and " no negligence," in the sense in- tended in that case, mean no more than the modern phrase " ordinary and reasonable care and prudence ; " and that, in such a case, at the present time, to hold a plea good that alleges the exercise of reasonable care, without setting forth all "the circumstances" or evidence sustaining the plea would be substantially in compliance with the law of that case, due lOS EXCEPTIONS : INEVITABLE ACCIDENT, [bk. i. allowance being made for the difference of legal language used at different periods, and the difference in the forms of pleading. But the drift of the ancient English authorities on the law of torts seems to differ materially from the view now prevailing in this country. Formerly, in England, there seems to have been no well-defined test of an actionable tort. De- fendants were often liable " because," as Raymond says, " he that is damaged ought to be recompensed ; " and not because, upon some clearly stated principle of law founded on actual culpability, public policy, or natural justice, he was entitled to compensation from the defendant. The law was supposed to regard "the loss and damage of the party suffering," more than the negligence and blameworthiness of the defendant : but how much more it regarded the former than the latter, was a question not settled, and very little investigated. " The loss and damage of the party suffering," if without relief^ would be a hardship to him ; relief compulsorily furnished by the other party would often be a hardship to him : when and why the " loss and damage " should, and when and why they should not be transferred from one to the other, by process of law, were probably not solved in a philosophical manner. There were precedents, established upon superficial, crude and undigested notions; but no application of the general system of legal reason to this subject. Mr. Holmes says, — " it may safely be stated that all the more ancient examples are traceable to conceptions of a much ruder sort (than actual fault), and in modern times to more or less definitely thought-out views of public policy. The old writs in trespass did not allege, nor was it necessary to show, anything savoring of culpability. It was enough that a cer- tain event had happened, and it was not even necessary that the act should be done intentionally, though innocently. An accidental blow was as good a cause of action as an intentional one. On the other hand, when, as in Rylands v. Fletcher, modern courts hold a man liable for the escape of water from a reservoir which he has built upon his land, or for the escape of cattle, although he is not alleged to have been negligent, they do not proceed upon the ground that there is an element of culpability in making«Such a reservoir, or in keeping cattle, CH. IV. § 8.] BEOWK V. COLLINS. 109 suflBcient to charge the defendant as soon as a damnum occurs, but on the principle that it is politic to make those who go into extra-hazardous employments take the risk on their own shoulders." He alludes to the fact that " there is no certainty what will be thought extra-hazardous in a certain jurisdiction at a certain time," but suggests that many particular instances point to the general principle of liability for the consequences of extra-hazardous undertakings as the tacitly assumed ground of decision. (7 Am. Law Eev. 652, 653, 662 ; 2 Kent Com. (12th ed.) 561, n. 1 ; 4 id. 110 n. 1.) If the hazardous nature of things or of acts is adopted as the test, or one of the tests, ami the English authorities are taken as the standard of what is to be regarded as hazardous, " it will be necessary to go to the length of saying that an owner of real property is liable for all damage resulting to his neighbor's property from anything done upon his own land " (MeUish's argument in Fletcher v. Bylands, L. K. 1 Ex. 272), and that an individual is answer- able " who, for his own benefit makes an improvement on his own land, according to his best skill and diligence, and not fore- seeing it will produce any injury to his neighbor, if he thereby unwittingly injure his neighbor " — (Gibbs, Ch. J., in Sutton v, Clark, 6 Taunt. 44, approved by Blackburn, J., in Fletcher V. Bylands, L. R. 1 Ex. 286.) If danger is adopted as a test, and the Enghsh authorities are abandoned, the fact of danger, controverted in each case, will present a question for the jury, and expand the issue of tort or no tort, into a question of reasonableness in a form much broader than has been gener- ally used ; or courts will be left to devise tests of peril, under varying influences of time and place that may not immediately produce a uniform, consistent and permanent rule. It would seem that some of the early English decisions were based on a view as narrow as that which regards nothing but the hardship- "of the party suffering;" disregards the question whether, by transferring the hardship to the other party, anything more will be done than substitute one suffering party for another; and does not consider what legal reason can be given for relieving the party who has suffered, by mak- ing another suffer the expense of his relief. For some of those decisions, better reasons may now be given than were thouglit no EXCEPTIONS : INEVITABLE ACCIDENT, [bk. i. of when the decisions were announced ; but whether a satisfac- tory test of an actionable tort can be extended from the ancient authorities, and whether the few modern cases that carry out the doctrine of those authorities as far as it is carried in Fletcher. V. Rylands, 3 H. & C. 774; L. K. 1 Ex. 265; L. K. 3 H. L. 330; L. K. Phil. ed. 3 Ex. 352, can be sustained, is very doubt- ful. The current of American authority is very strongly against some of the leading English cases. One of the strongest presentations of the extreme English view is by Blackburn, J., who says in Fletcher v. Rylands, L. R. 1. Ex. 279, 280, 281, 282, — "We think that the true rule of law is, that the person who for his own purposes brings on his lands, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default ; or perhaps that the escape was the consequence of vis major, or the act of God ; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle, just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the filth of his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works, is damnified without any fault of his own ; and it seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his property, but which he knows to be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mis- chief could have accrued, and it seems but just that he should, at his peril, keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law, whether the things so brought be beasts, or water, or filth or stenches. CH. IV. § 8.] BEOWN V. COLLINS. Ill The case that has most commonly occurred, and which is most frequently to be found in the books, is as to the obligation of the owner of cattle which he has brought on his land, to pre- vent their escaping and doing mischief. The law, as to them, seems to be perfectly settled from early times : the owner must keep them in at his peril, or he will be a.nswerable for the natural consequences of their escape, — that is with regard to tame beasts, — for the grass they eat and trample upon, though not for any injury to the person of others; for our ancestors have settled that it is not the general nature of horses to kick, or bulls to gore (or he might have added, dogs to bite), but if the owner knows that the beast has a vicious propensity to attack man, he will be answerable for that too. ... In these latter authorities (relating to animals called mischievous or ferocious), the point under consideration was damage to the person; and what was decided was, that where it was known that hurt to the person was the natural consequence of the animal being loose, the owner should be responsible in damages for such hurt, though where it was not known to be so, the owner was not responsible for such damages ; but where the damage is, like eating grass or other ordinary ingredients in damage feasant, the natural consequence of the escape, the rule as to keeping in the animal is the same.-. . . There does not appear to be any difference in principle between the extent of the duty cast on him who brings cattle on his land to keep them in, and the extent of the duty imposed on him who brings on his land water, filth, or stenches or any other thing, which will, if it escape, naturally do damage, to prevent their escaping and injuring his neighbor." This seems to be substantially an adoption of the early authorities and an extension of the ancient practice of holding {he defendant liable, in some cases, on the partial view that regarded the misfortune of the plaintiff upon whom a damage had fallen, and required no legal reason for transferring the damages to the defendant. The ancient rule was, that a per- son in whose house, or on whose land, a fire accidentally originated, which spread to his neighbor's property and de- stroyed it, must make good the loss. {Filliter v. Phijppard, 11 A. & E. IS". S. 347, 354 ; Tubervil y. Stamp, 1 Comyns, 32 ; 8. C. 112 EXCEPTIONS : INEVITABLE ACCIDENT, [bk. i. 1 Salk. 13; Com. Dig., Action upon the case for Negligence, A. 6 ; 1 Arch. IST. P. 539 ; Fletcher v. Rylands, 3 H. & C. 790, 793 ; Russell v. Fdbyan, 34 K H. 218, 225.) JSTo inquiry- was made into the reason of putting upon him his neighbor's loss as well as his own. The rule of such cases is applied, by Blackburn, to everything which a man brings on his land which will, if it escapes, naturally do damage. One result of such a doctrine is, that every one building a fire on his own hearth, for necessary purposes, with the utmost care, does so at the peril, not only of losing his own house, but of being irretrievably ruined if a spark from his chimney starts a con- flagration which lays waste the neighborhood. " In conflict with the rule as laid down in the English cases, is a class of cases in reference to damage from fire communicated from the adjoining premises. Fire, like water or steam, is likely to produce mischief if it escapes and goes beyond control ; and yet it has never been held in this country that one building a fire on his own premises can be made liable if it escapes upon his neighbor's premises, and does him damage without proof of negligence." {Losee v. Buchanan, 51 N. Y. 476, 487.) Everything that a man can bring on his land is capable of escaping, — against his will, and without his fault, with or without assistance, in some form, solid, liquid, or gaseous, changed or unchanged by the transforming processes of nature or art, — and of doing damage after its escape. Moreover, if there is a legal principle that makes a man liable for the natural consequences of the escape of things which he brings on his land, the application of such a principle cannot be limited to those things : it must be applied to all his acts that disturb the original order of creation ; or, at least, to all things which he undertakes to possess or control anywhere, and which were not used and enjoyed in what is called the natural or primitive condition of mankind, whatever that may have been. This is going back a long way for a standard of legal rights, and adopting an arbitrary test of responsibility that confounds all degrees of danger, pays no heed to the essential elements of actual fault, puts a clog upon natural and reason- ably necessary uses of matter, and tends to embarrass and obstruct much of the work which it seems to be man's duty CH. IV. §8.] BEOWK V. COLLINS. 11.1 carefully to do. The distinction made by Lord Cairns {Rylands v. Fletcher, L. K. 3 H. L. 330) between a natural and a non-natural use of land, if he meant anything more than the diflference between a reasonable and an unreasonable one, is not established in the law. Even if the arbitrary test were applied only to things which a man brings on his land, it would still recognize the peculiar rights of savage life in a wilderness, ignore the rights growing out of a civilized state of society, and make a distinction not warranted by the en- lightened spirit of the common law: it would impose a penalty upon efforts, made in a reasonable, skilful and careful manner, to rise above a condition of barbarism. It is impossible that legal principle can throw so serious an obstacle in the way of progress and improvement. Natural rights are, in general, legal rights ; and the rights of civilization are, in a legal sense, as natural as any others. " Most of the rights of property, as well as of person, in the social state, are not absolute but rela- tive" [Losee v. Buchanan, 51 JS". Y. 485); and, if men ever were in any other than the social state, it is neither necessary nor expedient that they should now govern themselves on the theory that they ought to live in some other state. The com- mon law does not usually establish tests of responsibility on any other basis than the propriety of their living in the social state, and the relative and qualified character of the rights in- cident to that state. In Fletcher v. Rylands, L. R 1 Ex. 286, 28Y, Mr. Justice Blackburn, commenting upon the remark of Mr. Baron Martin, " that, when damage is done to personal property, or even to the person, by collision, either upon land or at sea, there must be negligence in the party doing the damage to render him legally responsible," says, "This is no doubt true; and, as was pointed out by Mr. Mellish during his argument before us, this is not confined to cases of collision, for there are many cases in which proof of negligence is essential, as, for instance, where an unruly horse gets on the foot-path of a public street and kills a passenger (ZTammacA v. White, 11 C. B. (1^. S.) 588; 31 L. J. (C. P.) 129); or where a person in a dock is struck by the falling of a bale of cotton which the defendant's servants are lowering {Scott v. London Dock Company, 3 H. & C. 596 ; 8 114 EXCEPTIONS: INEVITABLE ACCIDENT, [bk. i. 35 L. J. Ex. 17, 220); and many other similar cases may be found. But we think these cases distinguishable from the present. Traffic on the highways, whether by land or sea, cannot be conducted without exposing those whose persons or property are near it to some inevitable risk; and that being so, those wlio go on the highway, or have their property adja- cent to it, may well be held to do so subject to their taking upon themselves the risk of injury from that inevitable dan- ger ; and persons who, by the license of the owner, pass near to warehouses where goods are being raised or lowered, cer- tainly do so subject to the inevitable risk of accident. In neither case, therefore, can they recover without proof of want of care or skill occasioning the accident ; and it is be- lieved that all the cases in which inevitable accident has been held an excuse for what, prima facie, was a trespass, can be explained on the same principle, viz. : that the circumstances were such as to show that the plaintiff had taken that risk upon himself." This would be authority for holding, in the present case, that the plaintiff, by having his post near the street, took upon himself the risk of its being broken by an inevitable accident, carrying a traveller off the street. But such a doctrine would open more questions, and more difficult ones, than it would settle. At what distance from a highway would an object be near it? What part of London is not near a street ? And then, as the defendant had as good a right to be at home with his horses as to be in the highway, why might not his neighbor, by electing to live in an inhabited country, as well be held to take upon himself the risk of an inevitable accident happening by reason of the country being inhabited, as to assume a highway risk by living near a road ? If neigh- borhood is the test, who are a man's neighbors but the whole human race ? If a person, by remaining in England, is held to take upon himself one class of the inevitable dangers of that country, because he could not avoid that class by migrat- ing to a region of solitude, why should he not, for a like rea- son, also be held to expose himself voluntarily to other classes of the inevitable dangers of that country ? And where does this reasoning end ? It is not improbable that the rules of liability for damage CH. IV. § 8.] BEOWN V. COLLINS. 115 done by brutes or by fire, found in the early English cases, were introduced, by sacerdotal influence, from what was sup- posed to be the Roman or the Hebrew law. (7 Am. L. Eev. 652, n. 1 Domat. Civil Law, Strahan's translation, 2d ed. 304, 305, 306, 312, 313 ; Exodus 21: 28-32, 36 ; 22: 5, 6, 9.) It would not be singular if these rules should be spontaneously produced at a certain period in the life of any community. Where they first appeared is of little consequence in the pres- ent inquii-y. They were certainly introduced in England at an rmmature stage of English jurisprudence, and an undevel- oped state of agriculture, manufactures and commerce, when the nation had not settled down to those modern, progressive, industrial pursuits which the spirit of the common law, adapted to all conditions of society, encourages and defends. They were introduced when the development of many of the ra- tional rules now universally recognized as principles of the common law had not been demanded by the growth of intelli- gence, trade and productive enterprise, — when the common law had not been set forth in the precedents as a coherent and log- ical system on many subjects other than the tenures of real estate. At all events, whatever may be said of the origin of those rules, to extend them, as they were extended in Rylands V. Fletcher, seems to us contrary to the analogies and the general principles of the common law, as now established. To extend them to the present case would be contrary to American authority, as well as to our understanding of legal principles. , The diificulty under which the plaintiff might labor in prov- ing the culpability of the defendant, which is sometimes given as a reason for imposing an absolute liability without evidence of negligence {Rixford v. Smith, 52 IS". H. 355, 359), or changing the burden of proof {Lisbon v. Lyman, 49 J^. H. 553, 568, 569, 574, 575), seems not to have been given in the English cases relating to damage done by brutes or fire. And however large or small the class of cases in which such a difii- culty may be the foundation of a rule of law, since the diffi- culty has been so much reduced by the abolition of witness disabilities, the present case is not one of that class. There are many cases where a man is held liable for taking, 116 EXCEPTIONS: INEVITABLE ACCIDENT, [bk. i. converting ((7. R. Co. v. Foster, 51 N. H. 490) or destroying property, or doing something else, or causing it to be done, intentionally, under the claim of right, and without any actual fault. " Probably one-half of the cases, in which trespass de bonis asportatis is maintained, arise from a mere misapprehen- sion of legal rights." (Metcalf, J., in Stanley v. Oaylord, 1 Cush. 536, 551.) When a defendant erroneously supposed, Avithout any fault of either party, that he had a right to do what he did, and his act, done in the assertion of his supposed right, turns out to have been an interference with the plaintiff's property, he is generally held to have assumed the risk of main- taining the right which he asserted and the responsibility of the natural consequences of his voluntary act. But when there was no fault on his part, and the damage was not caused by his voluntary and intended act, or by an act of which he knew, or ought to have known, the damage would be a neces- sary, probable or natural consequence ; or by an act which he knew or ought to have known to be unlawful — we understand the general law to be, that he is not liable. {Vincent v. Stinehour, 7 Vt. 62; Aaron v. State, 31 Ga. 167; Morris v. Piatt, 32 Conn. 75 ; and Judge Redfield's note to that case in 4 Am. L. Eeg. (N. S.) 532 ; Townshend on Slander, sees. 67, 88, p. 128, n. 1, 2d ed.) In Brown v. Kendall, 6 Cush. 292, the defendant, having interfered to part his dog and the plaintiff's, which were fighting, in raising a stick for that purpose, acci- dentally struck the plaintiff and injured him. It was held, that parting the dogs was a lawful and proper act which the defendant might do by the use of proper and safe means ; and that if the plaintiff's injury was caused by such an act done with due care and all proper precautions, the defendant was not liable. In the decision there is the important suggestion that some of the apparent confusion in the authorities has arisen from discussions of the question whether a party's rem- edy is in trespass or case, and from the statement that when the injury comes from a direct act, trespass lies, and when the damage is consequential, case is the proper form of action, — the remark concerning the immediate effect of an act being made with reference to damage for which it is admitted there is a remedy of some kind, and on the question of the proper CH. IV. § 8.] BEOWN u COLLIN'S. 317 remedy, not on the general question of liability. Judge Shaw, delivering tlie opinion of the court, said, — " We thinlc, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf, that the plaintiff must come prepared with evi- dence to show either that the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. (2 Greenl. Ev., sees. 85 to 92; Wa^eman v. Robinson, 1 Bing. 213.) If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. {Davis v. Saunders, 2 Chit. K. 639 ; Com. Dig. Battery, A. Day's ed. and notes ; Yith- cent V. Stinehov/r, 7 Yerm. 62 ; " James v. Campbell, 5 C. & P. 372 ; Alderson v. Waistell, 1 C. & K. 358.) Whatever may be the rule or the exception, or the reason of it, in cases of insanity ( Weaver v. Ward, Hob. 134 ; Com. Dig. Battery, A. n. d, Hammond's ed. ; Bormay v. Borra- daile, 5 M. G. & S. 380 ; Sedgwick on Damages, 455, 456, 2d ed. ; Morse v. Crawfm'd, 17 Vt. 499 ; Dickinson v. Barber, 9 Mass. 225; KromY. ScKoommaher, 3 Barb. 647; Horner v. Marshall, 5 Munf. 466; Teates v. Reed, 4 Blackf. 463 1), and whatever may be the full legal definitions of necessity, inevi- table danger and unavoidable accident, the occurrence com- plained of in this case was one for which the defendant is not liable, unless every one is liable for all damage done by supe- rior force overpowering him, and using him or his property as an instrument of violence. The defendant, being without fault, was as innocent as if the pole of his wagon had beea hurled on the plaintiff's land by a whirlwind, or he himself, by a stronger man, had been thrown through the plaintiff's window. Upon the facts stated, taken in the sense in which we understand them, the defendant is entitled to judgment. (1 Hilliard on Torts, ch. 3, 3d ed. ; Losee v. Buchaman, 51 JST. Y. 476 ; Parrott v. Wells, 15 Wall. 524, 537 ; Roche v. M. G. L. Co., 5 Wis. 55 ; Eastman v. Co., 44 K H. 143, 156.) Case discharged. 1 Estate of lunatic liable for actual damages caused by his wrongful killing of another (Mclntyre v. Sholty, 121 111. 660), also for injury from defective condition of his real estate. (^Morain v. Devlin, 132 Mass. 87.) But not fo^ slander. (Cooley on Torts, 2d ed. 119, and cases there cited.) 118 EXCEPTIONS : COMMON EIGHTS. [bk. i. EXCEPTIONS, SECTION 9. COMMON EIGHTS. PiXLBT V. ClAEK. (35N.T. 520. — 1866.) ^. Kernam, for appellant. D. Pratt for the respondents. Peckham, J. Action for damage for flooding plaintiff's land. The defendants purchased of the plaintiff a small strip of land on the borders of the Oriskany creek, in Oneida county. The whole strip so purchased they occupied by an embank- ment on that side of the creek, considerably higher than the natural bank, to prevent the overflow of the water caused by raising their dam. They raised their dam at four different times from 1853 to 1857 inclusive, in all fifty-eight and a half inches, so that the dam was then between nine and ten feet high. The embankment was some forty feet at the base, in and prior to 1857. The plaintiff owned sixteen acres of valu- able land adjoining said embankment. Prior to 1857 it was dry, and bore good crops of almost any kind. In and after 1857, by this raising of the defendant's dam, this land became saturated with water and nearly worthless. From 1857, this lot, with the exception of a few knolls, " was saturated with water at all seasons." " It had become so saturated with water that no crops could be raised there," except on a " few little knolls near a blind-ditch made by plaintiff in 1856, where there was a strip as dry as formerly." That, on the rest of the lot, cat-tails and the coarse, wild grass of the marshes grew where formerly were the dryest places. In 1858 the dam was drawn off for repairs, and so remained for two or three days, and then this land became comparatively dry. The water fell, in a hole dug on it, from twenty to twenty-four inches. It was proved on the trial that the embankment was well made, and no signs of wet on its outside appeared. From these facts the judge held that the water must have gone through the natural earth in the creek into this land, and not en. IV. § 9.] PIXLEY v. CLARK. 119 through the embankment, or between it and the natural soil, and nonsuited the plaintiff. On appeal, that nonsuit was sustained by the General Term in the fifth district, and plain- tiff appealed to this court. The single question presented on these facts is, whether the defendants had a right, by raising their dam, to " drown " the plaintiff's sixteen acres of land, by pressing the water through the natural banks of the stream, or otherwise. If he had, the nonsuit was right — if not, it was erroneous. The general rule as to flowing or drowning lands is well settled. " If riparian proprietors use a water-course in such a manner as to inundate or overflow the lands of another, an action will lie, on the principle, sic ufere tuo ut alienum non laedasP So, if he drown the land of another and rot his grass, an action lies (Angell on Water-Courses, sec. 330); and he adds : " The law on this subject, as thus laid down, is so well settled and so obviously just, as never to have been called in question." Again he says, that " no single proprietor, without consent, has a right to make use of the flow in such a manner as will be to the prejudice of any other." (Id., sec. 340.) Washburn on Easements reiterates this doctrine. He says, on authority of cases cited, "that a man may not erect his dam so high as to set back water beyond his neighbor's line, in its natural and ordinary swellings, in some seasons of the year." " A flood " (not the high water of spring or fall) " is a different thing: when it does come, it is a visitation of Providence, and the destruction it brings must be borne by those on whom it happens to fall" (Washb. on Ease., ch. 3, sec. 13, p. 259) ; and he adds, on the . authority of Rem v. Trafford, 1 Barn. & Ad. 259, which sustains him, "that no man may change or obstruct the flow of water of a stream for his own benefit to the injury of another," without being liable to an action ; and see 3 Kent, 5th ed. 439, 440, to the same effect ; and see Browie v. The Cayuga & Susquehanna Rail- road Com/pany, 2 Kern. 486 ; Williams v. Nelson, 23 Pick. 142, per Shaw, Ch. J. Upon this conceded principle of law, the plaintiff may rest his case. The defendants have so raised the water and set it back as to substantially drown or inundate the plaintiff's land. They have so obstructed the stream as to 120 EXCEPTIONS: COMMON EIGHTS. [bk. i. seriously injure the sixteen acres of the plaintiff's land. This action will lie, then, unless defendants can show some excep- tion to the general rule. The burden thereof rests upon them. The defendants answer, first, that a man may do a great many things on his own land that may result in damages to his neighbor, without being liable to an action therefor, and cite Raddiff v. Brooklyn, 4 Comst. 195, where Judge Bronson, after deciding the case before him, assumed to state what a man might do on his own land without being answerable for the consequences. But he did not say that an act of the kind complained of here was not actionable. He says : " Building a dam on one's own land, which throws back the water on the land of one higher up the stream, is an actionable injury." (p. 199.) That case, and every illustration in it, may be as- sented to without impairing the right to maintain this action. The defendants' counsel says that the defendants had the right to build this dam to use their water-power, " and all that can be legally required of them is that they shall exercise it so as not to injure, directly or unnecessarily, the lands of their neighbor ; " also, he says that " if one do a lawful act on his own premises, he cannot be held for the injurious conse- quences, unless it was so done as to constitute actionable neg- ligence." These, like many general propositions, are plausi- ble ; but, as applied to this case, in the sense they are sought to be used, neither of them is law, and never was. Take the first: is any such principle found in any case, or stated by any elementary writer, as that you have a right to use your water- power, and build a dam for that purpose, and, if necessary to that end, you may flow and drown your neighbor's land, pro- vided you do not do so " unnecessarily " ? That you may do it, so far as is necessary to the full and profitable enjoyment of your water-power, even though you flow and desti-oy his farm? The other proposition is very similar. "Was it ever held or pretended that you might build a dam and flow another's land, provided you were guilty of no want of care or skill in its construction ? In fact, the better dam you make — the more skilful and perfect its construction — the more water you restrain and throw back ^ the greater .the damage to the CH. IV. § 9.] PIXLEY V. CLAEK. 121 adjoining landowner. These are sound maxims, applied to many cases, but not to all. The latter may be admitted and applied here. The act of the defendants was lawful, in build- ing their dam, so long as they did not injure their neighbor's land. The moment they so interfered by their dam as to flow his land to his injury, the act was unlawful. Did any declaration ever aver that the defendant, in building his dam, " unnecessarily " threw the water into plaintifif's land, or that he did so by carelessly or negligently constructing his dam ? No such precedent can be found. The complaint in this case contains no such allegation. The contrary of these propositions is decided in this court in Tremain v. Oohoes Company, 2 Comst. 163, where defend- ants dug a canal on their own land, and, in doing it, blasted the rocks so as to cast the fragments against plaintiff's house on contiguous grounds. In an action for that injury, this court held that evidence that work was done in the most care- ful manner was inadmissible. In Hoy v. Cohoes Company, 2 Comst. 159, involving a similar principle. Judge Gardiner, in delivering the unanimous opinion of the court, says: "A man may excavate a canal, but he cannot cast the dirt or stones upon the land of his neighbor, either by human agency or the force of gunpowder. If he cannot construct the work without the adoption of such means, he must abandon that mode of using his property, or be held responsible for all dam- ages resulting therefrom. He will not be permitted to accom- plish a legal act in an unlawful manner." So, in Bellinger v. New York Central Railroad Com,panyy 23 N. Y. 42, this court held (Denio, J., delivering the opinion) "that the maxim, aqua civrrit et debet currere, absolutely prohibits an individ- ual from interfering with the natural flow of water to the prejudice of another riparian owner upon any pretence, and subjects him to damages at the suit of any party injured, without regard to any question of negligence or want of care. If one chooses, of his own authority, to interfere with a water- course, even upon his own land, he, as a general rule, does it at his peril, as respects other riparian owners above and below. But the rule is different where one acts under authority of law." It is not true, then, that the defendant must- have 122 EXCEPTIONS : COMMON EIGHTS. [bk. i. "carelessly" or "unnecessarily" injured the plaintiff to enable the plaintiff to sustain this action. There is a class of cases, however, in reference to surface streams, where negligence is the foundation of the action ; as where a riparian owner erects a dam, so carelessly or un- skilfully that it is carried away, and owners below are thereby injured. {The Mayor of New York v. Bailey, 2 Denio, 433.) In such case, the riparian owner is held liable, igiless the flood that carried it away should be regarded, substantially, as the act of Providence. The dam ought to be so constructed as " to resist such extraordinary floods as might be reasonably expected to occasionally occur;" otherwise, those erecting it are liable. (And see The Inhabitants of China v. SouthwicTc, 12 Maine, 238.) But, as already seen, such a rule has no application to the case at bar. It is, perhaps, not profitable to follow the counsel in his illustrations of the rights of landowners, as to other than water-rights. They are not pertinent, and their discussion may tend to confuse rather than enlighten the case before us. The law as to surface streams, though peculiar, has been ■so frequently considered, and so carefully and fully adjudi- cated, that it requires no borrowed light to determine its con- trolling principles. One of its settled maxims, derived ex jure natures, is, aq^oa eurrit et debet currere ut currere solebat. It is declared by Kent to be the settled language of the law. (3 Kent, 4th ed. 439, and cases there cited ; and see Angell on "Water-Courses, sec. 95, &c.) In this principle all writers and authorities concur. (See Tyler v. Wilkinson, 4 Mason, 400.) Another maxim, flowing from the one above stated, is, that -the owner of the bed of the stream does not own the water, but he only has a mere right to its use. He has a mere usu- fruct. He cannot detain it so as deprive an owner below of its use {Merritt v. Brinkerhoff, IT Johns. 306), as one mill- owner on a stream has the same right as another to its reason- able enjoyment, unless one has acquired a superior right by grant or prescription. As between two mill-owners, the ques- tion sometimes arises as to a reasonable use or detention of the water by the upper mill. As each riparian owner can only use the water, and does not own it, it follows that each, CH. IV. § 9.] PIXLEY V. CLAEK. 123 as against the other, must use it reasonably. If he do other- wise, and detain it unreasonably long, to the injury of the owner below, an action lies. (Wash, on Ease., 261, sec. 16.) The defendants insist that they are not responsible where the damages are " casual, indirect and remote," and four cases are cited to sustain the proposition. One of them is Smith v. Agwwcmn Canal, 2 Allen, 378. This was an action for dam- ages to plaintiff's mills, caused by the water thrown back upon them from the defendant's dam. It was admitted in the open- ing that " When the water is unaffected by ice and freshets it does not, in any manner, affect the plaintiff's mills." On such occasions, the water and ice set back on him longer than it did before. The rights of parties in Massachusetts, as to the erection of dams, are regulated by statute. After alluding to this, and to the language of the judges in two other cases, Mr. Justice Merrick, in delivering the opinion of the court, said, that " the top of the defendant's dam was lower than the lower part of the plaintiff's wheel. From these facts it is a necessary consequence that if the plaintiff sustained any damage by the rise of water, it must have been owing to the occurrence of freshets and extraordinary floods." For the results of such causes, the defendants were held not responsi- ble. Their dam was so constructed that, without the inter- vention "of forces, casual and extraordinary," no possible injury could have occurred to the plaintiff. If this damage occurred in ordinary stages of the water, the liability is ad- mitted. Another case was Inhabitants of China v. Southwick, 12 Maine, 238. Action for carrying off plaintiffs' bridge by the erection of defendants' dam. The. jury found, under the charge of the judge, that the dam was not high enough to flow the plaintiffs' bridge, or to do damage thereto. Yerdict for defendant, which the court sustained. The court remarked that the dam may have contributed to the injury, but it would be going too far " to run up a succession of causes and hold each responsible for what followed, especially when the succession was casual and unexpected as it was here." It was proved that the dam had been iii that condition for a series of years, without flowing the plaintiffs' bridge or doing 124 EXCEPTIONS : COMMON EIGHTS. [bk. i. it auy damage. It was plainly the case of an extraordinary flood. The other case was Monongahela Navigation Co. v. Goon, 6 Barr. 379. Action for flowing plaintiffs' mills by the erection of defendants' dam. The defendants were held liable for the injury, under an accepted amendment to their charter, for damages sustained by plaintiffs' mills by a flood, although the court remarked that a riparian owner would not be liable for damages occasioned by floods, though the dam- ages were increased by the dam in connection with the. flood, if the dam did not flow the mill at other times. The soundness of these decisions it is not necessary to dis- cuss, as they have no application. The damage in the case at bar occurs, not " casually," but at all seasons of the year; in the summer working season, as well as others ; nor is it caused by extraordinary floods. Again, the defendants insist that the laws of surface streams do not apply to water circulating or percolating through the natural soil under the surface of the earth. The nonsuit was placed on this ground., I^o one disputes this, as an abstract proposition. But that does not aid the defendants. They must show that the rule applies the other way — that is, that the rules applicable to subterranean water apply also to living surface streams. That, they will fail to establish. An owner of the land may divert percolating water, con- sume or cut it off, with impunity. It is the same as land, and cannot be distinguished in law from land. So the owner of the land is the absolute owner of the soil and of the perco- lating water, which is a part of, and not different from, the soil. No action lies against the owner for interfering with or destroying percolating or circulating water under the earth's surface. But the difficulty is the defendants are not sued for inferfering with or cutting iOff percolating water. The first and leading case is Acton v. Blundell, in the Exchequer Chamber, 12 Mees. & Wels. 324. There the plaintiff had sunk a well on his own land, for raising water for the working of his mill. The defendants afterward sunk a coal-pit on their own land, whereby the plaintiff's well was made dry. Held, that they incurred no liability to the plain- tiff thereby ; that the law as to surface streams did not apply. CH. IV. § 9.] PIXLEY V. CLAEK. 125 The court stated that there was a great difference in the cases. "In surface streams, the owner merely transmits the water over its surface. He receives as much from his higher neighbor as he transmits to his neighbor below. The level of the water remains the same. But if the man who sinks the well in his own land can acquire, by that act, an absolute right to the water that collects in it, he has the power of pre- venting his neighbor from making any use of the spring in his own soil which shall interfere with the enjoyment of the well. He has the power, also, of debarring the owner of the land in which the spring is first found from draining his land for the proper cultivation of the soil." And the court expressly say, that, " if the right to the enjoyment of under- ground springs, or to a well supplied thereby, is to be governed by the same law (as the right to surface streams), then, un- doubtedly, the defendants could not justify the sinking of the coal-pits, and the action would lie." Roath y.DhsooU, 20 Conn. 533, is another case of precisely the same character ^— wells sunk on each farm — and the like decision on like grounds. Martin v. Riddle, 2 Casey Penn. 415, in note, was simply an action against a party for stopping up a water-course, where plaintiff recovered — a nisiprius case ; and the only remark touching this subject in the charge of the judge is, " that a party cannot justify the erection of an em- bankment to stop the water, if thereby the water is improperly forced upon another owner." Broadbent v. Mamsbotham, 34 Eng. Law. & Eq. 553, and Rawstron v. Taylor, 33 id. 428, simply hold, in substance, that an owner is not liable for the proper agricultural draining of his own land, although it may reduce the supply of a stream where plaintiff's mill was situ- ated, provided such draining took away no water after it had reached a surface stream ; that he could not divert the water "after it had arrived at, or was flowing into, some natural channel already formed." Ooodale v. Tuttle, 2(9 IST. Y. 459, is to the same general effect. The court here again remark, that the principle which governs the obstruction of running streams does not apply to waters running under the soil. Chatfidd V. Wilson, 28 Verm. 49, and Chasemore v. Richards, 7 House of Lords Oases, 349, are to the same effect. In the 126 EXCEPTIONS: COMMON EIGHTS. [bk. i. case last cited, it was expressly found, as a fact, that the act complained of (diverting the supplies to the river "Wandle) "did not divert or abstract any water which had already joined the river Wandle, or which had already joined any surface stream running into it." Hence, the action did not lie. These actions were all for digging drains, sinking wells or pits, or making other improvements on their owners' lands, whereby water, percolating under the earth's surface, was interfered with to the damage of some other proprietor of other lands. In Dick- inson V. Canal Company, 7 Exch. 282, decided since Acton v. Blundell, supra, it was expressly decided that sinking a well, and pumping thereout large quantities of water to supply the canal, whereby water that had already reached a surface stream was diverted by percolation,was actionable by the party on the stream. In Chatjield v. Wilson, supra, cited by defendants, the court, after citing Acton y. Blundell, and other like cases, remarked that the case of Dickinson v. Canal Company, supra, "is not opposed to the views taken in the foregoing cases. In that case the injury complained of was the diminution of water in the surface stream ; and the law applicable to surface streams was applied. It was treated as a diversion of surface water, and actionable at common law." Surely, if you can- not subtract or divert the water of a surface stream to the injury of a riparian owner, even by percolation, caused by a well on your own land, you will be liable to your neighbor for your direct interference with a surface stream, whereby he is injured by percolation you have yourself unlawfully created. In Cooper v. Barher, 3 Taunt. 99, the plaintiff had diverted the water of a surface stream by penstocks, to irrigate his land : by means thereof, he injured defendant's land, through the consequent percolation of water under the soil, so as to over- flow his kitchen and cellar. The defendant broke down one penstock and removed the upper boards of another, and his house became 'directly dry. In an action by plaintiff for de- stroying the penstock, the court held the action would not lie for that part of the injury to the penstocks necessary to abate the nuisance. The principle which exempts a party from liability for dig- ging upon and cultivating his own land as he pleases, though CH. IV. § 9.] PIXLEY V. CLARK. 127 he may interfere with subterranean water, is designed for the benefit and protection of the landowner. As sought to be applied here, it would work his great injury. Landowners, under this rule, in the neighborhood of surface streams, could never know their rights or the value of their lands. They would be subject to the superior rights of mill-owners to dam- age the land for their benefit, without compensation. The case, then, stands thus : The defendants are sued for drowning the plaintiff's land by an unauthorized interference with a surface stream, by pressing a part of that stream through its banks, by means of their artificial works, into the lands of the plaintiff, to his injury. The defendants answer, true, we did that for our benefit, but the law allows a party to interfere with underground, dead or percolating water, by sinking a well or digging drains on his own land. The reply is, you have interfered with a surface stream, not with under- ground, percolating water, and hence the doctrine of those cases affords you no protection. The point is, that the defend- ants, by their interference with a surface stream, have wrong- fully pressed a part of it into percolated water, and thus drowned the plaintiff's land. When sued for this interference with a living, surface stream, they answer that they are not liable for interfering with water percolating under the earth. They insist upon defending themselves against something for which they are not prosecuted. To hold that defendants would be liable, if their interference with the surface stream had damaged the plaintiff, by overflowing the natural banks and pressing it through the artificial embankment, but not if they pressed it through the natural banks, would be about as sound legal justice, to my mind, as if we should hold a man liable for stabbing another in the bosom, but, if he stabbed him under the arm, though the knife should come to the same point in the body, there should be no liability. Defendants also insist that they are not liable because it is not known how the injury occurred — that the principle is not understood. It is clear in this, as in the case of Cooper v. Barber, 3 Taunt. 99, and upon like proof, that this dam has, in fact, caused the injury, though we may fail to discover the principle on which it was done. The learned judge there called it a mere pre- 128 EXCEPTIONS: COMMON EIGHTS. [bk. i. tenoe to contend otherwise as to the fact. The defendant, then, is as much answerable for it as one would be who choked another to death, though it should be proved that science was utterly unable to declare how life should entirely leave the body by mere pressure upon the throat for a couple of minutes. These defendants tried an experiment for their own benefit, and found it seriously injured the plaintifif. When they see the injury they insist upon continuing it. They add that the plaintiff can protect himself, if he will appropriate a part of his land to a ditch, and will incur the expense of digging the ditch and keeping it in repair for their benefit. This shocks the sense of honesty and justice. To look after the mysteries that attend the circulation of subterranean water, not caused by interfering with a surface stream, is to seek darkness rather than light. There is no mystery as to the cause of this damage. It is a familiar rule, that the pressure of water is in propor- tion to its height. The water was raised much higher than in its natural condition, and its natural banks, by this dam ; and it is entirely clear that it was pressed into this land, either through the natural or artificial banks, or else between them. That was the position assumed at the circuit: when the water from the dam was drawn off, the water left this land. It is, therefore, not that the defendants have unreasonably, negli- gently, unintentionally, unnecessarily or unexpectedly flowed the plaintiff's land, to his" injury, for their benefit, that they are liable. It is simply because they have done it in fact: they have done it by their works, and it cannot be charged to extraordinary floods. In the language of the old books, " the defendants' exaltcmunt stagnuvi by which the plaintiff's meadow was flooded," and they are liable therefor. (Godbolt, 58.) The necessity, motive, knowledge or care of defendants, forms no element of this action. Not the peculiar mode or manner of the injury, but the fact of the injury caused by the dam, in any mode or manner, is the ground of the action. Landowners have purchased their farms Avhere a surface stream runs, in view of the conceded right to have that stream continue as it had been accustomed to run. If its current be interfered with, in any manner to the damage of their land. CH. IV. § 9.] PIXLEY V. CLAEK. 129 an action lies. An owner may dig upon or cultivate his land at his pleasure, though he cut off, or open, water circulating or dead under the earth, to his neighbor's injury. Such water is not different from the earth itself. He owns it. He does not own the water of a surface stream, and cannot set it back to another's injury, without liability. The defendants also insist that the injury might be remedied by the plaintiff, at small cost, by digging a drain along the embankment. If this were true, he is not bound to do it. As the defendants caused the damage, without authority, and for their own benefit, they should find the remedy at their own expense. They might have purchased more land in which to make the ditch, if they have no ground now, or purchased the right to flow the land of their neighbor. {Earle y. DeHart, 1 Beasl. 280 ; Wash, on Ease., 358.) I have thus examined all the grounds on which the right to do this injury is based, and deem them all untenable. The defendants have violated- the rights of the plaintiff, and flowed his land to his damage; law and justice alike require that they should pay that damage. It is urged by the defendants' counsel that, if mill-owners are held responsible for such dam- ages, many of the mills may be ordered to be abated and destroyed. Not so; for probably no such right has ever before been claimed. But the answer to such an objection is precisely the same as would be given in case of injury by any other mode of flooding a person's land, for which they who cause it are confessedly liable. If they have flooded it for more than twenty years, they have the right to continue, on the legal presumption of a grant. Otherwise, if they w'ill obstruct the natural flow of an open, running sfcream for their own profit, they must see to it that they do not thereby flood their neighbor's land to his injury. For any light, trivial damage, by flowing over or through the bank, no court of equity, in the exercise of a conceded discretion on that subject, would interfere by injunction, or by order to abate. For a substantial injury, they would, as they should, grant relief. A court of equity will always see that substantial justice is done. It does not execute even legal rights, when to do so would be oppressive, but leaves the party to his remedy at law. 9 130 EXCEPTIONS : COMMON EIGHTS. . [bk. l The judgment should be reversed and a new trial ordered, costs to abide the event. Davies, Ch. J., read an opinion for afBrmance, in which MoBGAN, J., concurred. Judgment reversed. The S. K. Bank v. The S. BAifTK. (27 Vt. 505. — 1854.) J. S. Marcy and J. P. Kidder for the plaintiffs. 0. P. Chandler and Converse (& Barrett for the defendants. Bennett, J. This case comes up upon a general demurrer to the plaintiff's declaration, and, of course, the only question is whether a legal cause of action is set out in the declaration. It may with truth be said, that an attempt to maintain an action upon the facts stated in the declaration is novel ; but this does not prove conclusively that the action cannot be sustained in this age of progress. The facts stated in the declaration are briefly that the plaintiffs, being a banking cor- poration, had put in circulation a large amount of their bills, and that the bills would have had a continued and extended circulation, had it not been for the acts of the defendants, to the great gain and profit of the plaintiffs ; and that the Suf- folk Bank bought them up from time to time, and have refused again to exchange them for other money and kept them out of circulation, and Jiave called upon and compelled the plain- tiffs to redeem the bills in specie. The declaration charges that the acts of the defendants were performed with wicked and corrupt motives, and with an intent to injure, oppress and embarrass the plaintiffs in their business, whereby they have been damaged in their busi- ness ; harassed, oppressed and deprived of great gains, as they say, which they otherwise would have made, to wit, ten thou- sand dollars. It is hardly necessary to say that the plaintiffs issued their bills as a circulating medium in lieu of specie cur- rency, and that it was the right of the defendants, in common CH. IV. § 9.] THE S. E. BANK v. THE S. BANK. 131 with others, to purchase in their bills, and thus withdraw them I'i'om circulation, until they should choose again to put them in circulation or call upon the plaintiffs to redeem their promise by the payment of their bills in specie. The ^Jefendants are not charged with doing any act in itself considered wrong, but it is attempted to make the acts action- able by reason of the bad motive imputed to the defendants in doing them. This case seems to us but an ordinary one of a creditor calling upon his debtor for his pay, at a time, and at a place, and in a manner to which the debtor has no right to make objection. It was morally and legally the duty of the plaintiffs at all times to be ready and willing to redeem their bills, and if it has operated to their injury to be called upon at any particular time to redeem a particular amount, it is " damnum absque injuriaP Here was no unlawful conspiracy by the defendants with others, either to do a lawful act in an unlawful manner, or an unlawful act to the injury of the plain- tiffs ; but the declaration charges, in effect, that the acts were done from bad motives in the defendants. This, we think, is not enough. Motive alone is not enough to render the defend- ants liable for doing those acts which they had a right to do. It is too well settled to need authority that malice alone will not sustain an action for a vexatious suit. There must also be want of probable cause. This principle is enough to settle this case. If the defendants could not be sued for instituting suits, maliciously to collect pay upon the plaintiffs' bills which they lawfully held, much less could they be sued for simply calling upon the defendants for pay, without the intervention of a suit, though done with malice. It may be true that some- times the consequences attending an act may serve to giv^ character to that act, and the rule has become established and grown into a maxim that a man must use his own rights with due regard to the rights of others ; but this principle does not apply to the present case. Here the act of presenting the plaintiffs' bills for payment has no natural connection with any injurious consequences to follow from it, and if such conse- quences follow they must be fortuitous, and cannot give char- acter to the act so as to render it unlawful. (See Williams v. Himter, 3 Hawks, 545 ; also 31 Maine, 438.) 132 EXCEPTIONS: LICENSE. [bk. i. It seems impossible to distinguish the case made in the plain- tiffs' declaration from an action for maliciously holding a party to bail, or suing out a writ when nothing is due, in which case the gist of the action is malice and the want of a probable cause, and the principle of that class of cas^s must govern this. The result is, the judgment of the county court is affi/rmed. EXCEPTIONS, SECTION 10. LICENSE. Baeholt v. "Weight. (45 Ohio St. 177. — 1887.) ' The plaintiff below brought suit against the defendant to recover damages for an assault and battery committed upon his person. The answer was a general denial. Upon the trial of the issue, the jury, under the charge of the court, rendered a verdict for the defendant. A motion for a new trial, assigning error in the charge, was overruled by the court, and a bill of exceptions taken. Upon error the judgment was reversed in the Circuit Court, and the cause remanded for a new trial ; and the defendant below now prosecutes error in this court to reverse the judgment of the Circuit Court. The evidence is not set out in the bill of exceptions ; but it appears from the bill, that, upon the trial, the plaintiff offered i^dence tending to show that he and the defendant went out to fight by agreement and did fight, and was severely injured by the defendant; among other injuries inflicted upon him, one of his fingers was so bitten by the defendant that it had to be amputated. By reason of the mjuries so received, he became ill, was disabled for work for a long time, and was put to considerable expense in being cured. The court, however, charged the jury that if the parties went out to fight by agree- ment, and the plaintiff received the injuries complained of from the defendant while the fight was going on and in the course of it, he could not recover. The accuracy of this charge is the question presented by the record. CH. IV. § 10.] BAEHOLT v. WEIGHT. 133 P. B. Conant and J. JV. Nichols for plaintiff in error. W. B. Thomas, George F. Robinson and Cole cfe Wright for defendant in error. MmsHALL, J. It would seem at first blush contrary to cer- tain general principles of remedial justice to allow a plaintiff to recover damages for an injury inflicted on him by a defend- ant in a combat of his own seeking; or where, as in this case, the fight occurred by an agreement between the parties to fight. Thus in cases for damages resulting from the clearest negligence on the part of the defendant, a recovery is denied the plaintiff, if it appear that his own fault in any way con- tributed to the injury of which he complains. And a maxim, as old as the law, volenti nonfit injuria, forbids a recovery by a plaintiff where it appears that the ground of his complaint had been induced by that to which he had assented; for, in judgment of law, that to which a party assents is not deemed an injury. (Broom's Leg. Max. 268.) But- as often as the question has been presented, it has been decided that a recovery may be had by a plaintiff for injuries inflicted by the defendant in a mutual combat, as well as in a combat where the plaintiff was the first assailant, and the injuries resulted from the use of excessive and unnecessary force by the defendant in repelling the assault. These appar- ent anomalies rest upon the importance which the law attaches to the public peace as well as to the life and person of the citizen. From considerations of this kind it no more regards an agreement by which one man may have assented to be beaten, than it does an agreement to part with his liberty and become the slave of another. But the fact that the. injuries were received in a combat in which the parties had engaged by mutual agreement, may be shown in mitigation of damages. (2 Greenleaf Ev. sec. 85 ; Logan v. Austin, 1 Stewart, 476.) This, however, is the full, extent to which the cases have gone. We will notice afew of them. In Boulter v. Clark, an early case, an offer was made, under the general issue, to show that the plaintiff and the defendant fought by consent. The offer was denied.; the Chief Baron saying, " the fighting being un- lawful, the consent of the plaintiff to fight, il proved, would 134 EXCEPTIONS : LICENSE. [bk. i. be no bar to his action." (BuUer's Nisi Prius, 16.) A number of earlier cases were cited, and among tiiem that of Mathew V. OUerton, Comb. 218, where it said " that if a man license another to beat him, such license is void, because it is against the peace." It will be found upon examination that this case was not an assault and battery ; it was on an award that had been made by the plaintiff on a submission to himself. The remark, however, made in the reasoning of the court, is evi- dence of the common understanding of the law at that early day. In 1 Stephen's Nisi Prius, 211, it is said: "If two men engage in a boxing match, an action can be sustained by either of them against the other, if an assault be made; because the act of boxing is unlawful, and the consent of the parties to fight cannot excuse the injury." So in £ell v. Hansley, 3 Jones, N. C. 131, it was held that " one may recover in an action for assault and battery, although he agreed to fight with his adversary; for such agreement to break the peace being void, the maxim volenti nonfit injuria does not apply." The following cases are to the same effect : Stout v. Wren, 1 Hawks, 420 ; Adams v. Waggoner, 33 Ind. 531 ; Shay v. Thompson, 59 Wis. 540 ; Logan v. Austin, 1 Stewart, 4Y6. And so it was held in Commomwealth v. Collherg, 119 Mass. 350, that where two persons go out to fight with their fists, by consent, and do fight with each other, each is guilty of an assault, although there is no anger or ill-will. Chamfer v. State, 14 Ohio St. 437, is not in conflict with this, as will be explained hereafter. No case has been cited that can be said to be to the contrary. What is said by Peck, J., in Smith v. State, 12 Ohio St. 466, that " an assault upon a consenting party would seem to be a legal absurdity," must be applied to the facts of that case. The judge was discussing the sufficiency of a count in an in- dictment for an assault with intent to commit a rape, without an averment that it was made forcibly and against tlie will of the female. The absence of consent is essential to the crime of rape, or of an assault with intent to commit a rape, where the female has arrived at the age at which consent may be given. Intercourse, because illicit, does not amount to an assault where the female consents, however wrong it may be in morals. CH. IV. § 10.] BAEHOLT v. WEIGHT. 135 This is all that was meant by the learned judge in using the language quoted from his opinion. In all such cases the consent of the female would, without doubt, be a bar to any right she would otherwise have to main- tain an action for an assault and battery. It is said by Judge Cooley in his work on Torts, p. 163, that " consent is generally a full and perfect shield when that is complained of as an injury which was consented to. . . . A man may not even com- plain of the adultery of his wife, which he connived at or as- sented to. If he concurs in the dishonor of his bed, the law will not give him redress, because he is not wronged. These cases are plain enough, because they are cases in which the questions arise between the parties alone." " But," he adds, " in case of a breach of the peace it is different. The State is wronged by this and forbids it on public ground. . . . The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. The exception to this general rule embraces only those cases in which that to which assent is given is matter of indifference to public order." (See, also, to like effect. Pollock on Torts, 139.) Neither is the case of Champer v. State, 14 Ohio St. 437, at variance with the principle upon which the plaintiff below seeks a recovery. The case seems to have been somewhat misap- prehended by the courts of some of the States, as well as by some text-writers. By the statutes of this State a distinct offence is made of an affray or agreement to fight; and the effect of the holding is that where such an offence is committed, the indictment must be for an affray, and not for an assault and battery. The civil right of either party to recover of the other for injuries received in an affray, is not affected by the statute nor by the decision just referred to. Such seems to have been the view taken by Boynton, J., in the subsequent case of Dar- ling v. Williams, 35 Ohio St. 63. The case of Fitzgerald v. Cavin, 110 Mass. 153, is to the effect that consent is no bar to that which occasions bodily harm if the act was intentionally done. It is upon the same principle of public policy that one, who is the first assailant in a fight, may recover of his antagonist for injuries inflicted by the latter, where he oversteps what is 136 EXCEPTIONS; NECESSITY. [bk.i. reasonably necessary to his defence, and unnecessarily injures the plaintiff ; or that, with apparent want of consistency, per- mits each to bring an action in such case, the assaulted party for the assault first committed upon him, and the assailant for the excess of force used beyond what was necessary for self- defence. {Dole V. Erskine,2>^ N. H. 503,, criticising Elliott V, Brown, 2 Wend. 499 ; Cooley on Torts, 165; Darling v. Wil- liams, 35 Ohio St. 63 ; Gizler v. Witzel, 82 111. 322. And see, &\^0y Commonwealth Y. Oollherg, supra.) It would seem that under the code the right of each com- batant to damages might be determined and measured in the sanje action. (Swan's Plead. Prec. 259, n. a.) And upon like principle it has been ruled that the doctrine of contrilDutory negligence has no application to an action to recover damages for an assault and battery. {Rxtter v. Foy, 46 Iowa, 132; Steinmetz v. Kelly, 72 Ind. 442; Whitehead v. Mathaway, 85 Ind. 85.) Negligence of the plaintiff contribut- ing to the injury of which he complains, is taken into consid- eration only in those cases where the liability of the defendant arises from want of care on his part, occasioning injury to the plaintiff ; it does not apply to the commission of an intentional wrong. ***** Judgment affirmed. EXCEPTIONS, SECTION II. NECESSITY. Campbell v. Eace. (7 0u8h. 408. — 1861.) W. Porter and J. C. Woloott for the defendant. /. Sumner for the plaintiff. BiGELOw, J. It is not controverted by the counsel for the plaintiff, that the rule of law is well settled in England, that where a highway becomes obstructed and impassable from temporary causes, a traveller has a right to go extra viam, upon adjoining lands, without being guilty of trespass. The rule CH. IV. § 11.] CAMPBELL, tt EACE. 137 is so laid down in the elementary books (2 Bl. Com. 36; Woolrich on "Ways, 50, 51 ; 3 Cruise Dig. 89 ; Wellbeloved on Ways, 38) ; and it is fully supported by the adjudged cases. {Henn's Case, W. Jones, 296 ; 3 Salk. 182; 1 Saund. 323, n. 3 ; Absor v. French, 2 Show. 28 ; Young v. •, 1 Ld. Eaym. 725 ; Taylor v. Whitehead, 2 Doug. 745 ; Bullard v. Harrison, 4 M. & S. 387, 393.) Such being the admitted rule of law as settled by the English authorities, it was urged in behalf of the plaintiff in the present case, that it had never been recog- nized or sustained by American authors or cases. But we do not find such to. be the fact. On the contrary, Mr. Dane, whose great learning and familiar acquaintance with the prin- ciples of the common law, and their practical application at an early period in this Commonwealth, entitle his opinion to very great weight, adopts the rule^ as declared in the leading case of Taylor v. Whitehead, ubi supra, which he says " is the latest on the point, and settles the lawP (3 Dane Ab. 258.) And'so Chancellor Kent states the rule. (3 Kent Com. 424.) We are not aware of any case in which the question has been directly raised and adjudicated in this country ; but there are several decisions in New Tork, in which th& rule has been incident- ally recognized and treated as well-settled law. {Holmes v. Seely, 19 Wend. 507 ; Williams v. Safford, 7 Barb. 309 ; New- Tcirk V. Sailer, 9 Barb. 652.) These authorities would seem to be quite sufficient to justify us in the recognition of the rule. But the rule itself is founded on the established principles of the common law, and is in accordance with the fiixed and uniform usage of the community. Indeed, one of the strongest arguments in support of it is, that it has always been practised upon and acquiesced in, without objection, throughout the K"ew England States, This accounts satisfactorily for the absence of any adjudication upon the question, in our courts, and is a sufficient answer to the objection upon this ground, which was urged upon us by the learned counsel for the plain- tiff. When a right has been long claimed and exercised, without denial or' objection, a strong presumption is raised that the right is well founded. The plaintifif's counsel is under a misapprehension in sup- posing that the authorities in support of the rule rest upon 138 EXCEPTIONS : NECESSITY. [bk. i. any peculiar or exceptional principle of law. They are based upon the familiar and well-settled doctrine, that to justify or excuse an alleged trespass, inevitable necessity or accident must be shown. If a traveller in a highway ,_ by unexpected and unforeseen occurrences, such as a sudden flood, heavy drifts of snow or the falling of a tree, is shut out from the travelled paths, so that he cannot reach his destination, with- out passing upon adjacent lands, he is certainly under a neces- sity so to do. It is essential to the act to be done, without Avhich it cannot be accomplished. Serious inconveniences, to say the least, would follow, especially in a climate like our own, if this right were denied to those who have occasion to pass over the public ways. Not only would intercourse and business be sometimes suspended, but life itself would be endangered. In hilly and mountainous regions, as well as in exposed places near the sea coast, severe and unforeseen storms not unfre- qUently overtake the traveller, and render highways suddenly impassable, so that to advance or retreat by the ordinary path is alike impossible. In such cases, the only escape is, by turn- ing out of the usually travelled wa}"^, and seeking an outlet over the fields adjoining the highway. If a necessity is not created, under such circumstances, sufficient to justify or excuse a traveller, it is difficult to imagine a case which would come within the admitted rule of law. To hold a party guilty of a wrongful invasion of another's rights, for passing over land adjacent to the highway, under the pressure of such a necessity, would be pushing individual rights of property to an unreasonable extent, and giving them a protection beyond that which finds a sanction in the rules of law. Such a tem- porary and unavoidable use of private property must be re- garded as one of those incidental burdens to which all property in a civilized community is subject. In fact, the rule is some- times justified upon tlie ground of public convenience and necessity. Highways being established for public service, and for the use and benefit of the whole community, a due regard for the welfare of all requires, that when temporarily ob- structed, right of travel should not be interrupted. In the words of Lord Mansfield, "it is for the general good that people should be entitled to pass in another line." It is a CH. IV. § 11.] CAMPBELL v. EACE. 139 maxim of the common law, that where pubhc convenience and necessity come in conflict with private life, the latter must yield to the former. A person travelling on a highway is in the exercise of a public, and not a private right. If he is com- pelled, by impassable obstructions, to leave the way, and go upon adjoining lands, he is still in the exercise of the same right. The rule does not, therefore, violate the principle that individual convenience must always be held subordinate to private rights, but clearly falls within that maxim, which makes public convenience and necessity paramount. It was urged in argument that the effect of establishing this rule of law would be to appropriate private property to public use without providing any means of compensation to the owner. If such an accidental, occasional and temporary use of land can be regarded as an appropriation of private property to a public use, entitling the owner to compensation, which may well be doubted, still the decisive answer to this objection is quite obvious. The right to go extra viarn, in case of tem- porary and impassable obstructions, being one of the legal incidents or consequences which attaches to a highway through private property, it must be assumed, that the right to the use of land adjoining the road was taken into consideration and proper allowance made therefor, when the land was originally appropriated for the highway, and that the damages were then estimated and fixed, for the private injury which might thereby be occasioned. It was also suggested, that the statutes of the Common- wealth, imposing the duty on towns to keep public ways in repair, and rendering them liable for damages occasioned by defects therein, furnish ample remedies in cases of obstructions, and do away with the necessity of establishing the rule of the common law in this Commonwealth, which gives the right in such cases to pass over adjacent lands. But this is not so. Towns are not liable for damages in those cases to which this rule of the common law would most frequently be appli- cable — of obstructions, caused by sudden and recent causes, which have not existed for the space of twenty-four hours, and of which the towns have had no notice. Besides, the statute liability of towns does not extend to damages such as 140 EXCEPTIONS: NECESSITY. [bk.i. would ordinarily arise from the total obstructiott of a highway ; being expressly confined to cases of bodily injuries and dam- ages to property. (St. 1850, c. 5; Canning ^-Williamstown, 1 Cush. 451; Harwood v. Lowell, 4 Cushi aiO; JSraMey v. Southborough, 6 Cush. 141.) From what- has already been said, the limitations and restrict tions of the right to go upon adjacent lands in case of obstruc- tions in the highway can be readily inferred. Having its origin in. necessity, it must be, limited by that necessity ; cesr sante ratione, oessat ipsa lex. Such a right is- not to be exen- oised from convenience merely, nor when, by the exercise, of due. care, after, notice, of obstructions, other ways may be selected and the obstructions avoided. But it is to be confined to those cases of- inevitable necessity or unavoidable accident, arising from sudden and recent, causes which, have occasioned temporary and impassableobstructions in the highway. What shall constitute, such inevitable necessity or unavoidable acci- dent, must depend upon the various circumstances attending each particular case. The nature of the obstruction in. the road, the length of time, during which, it has existed, the viciur ity or distance ol other public ways, the. exigencies of the traveller, are some of the. many considerations which, would enter into the inquiry, and upon which, it is the exclusive province of the jury to pass, in order to determine whether any necessity really existedj which would justify or excuse, the traveller. In the case at bar, this question was wholly withr drawn from the consideration of. the jury, by the ruling of the court. It will therefore be necessary to send the case to. a new trial in the court of common pleas.^ Exceptions sustained. 1 For right to destroy property of another in case of fire, see Am. Print Works V. Lawrence, 23 N. J. L. 9, 690. CH. IV. § 12.] LIVEEMOEE v. BATCHELDEE. 141 EXCEPTIONS, SECTION 12. PRIVATE DEFENCE. LiVEBMOEE V. BaTCHELDEE. (141 Mass. 179. — 1886.) ToET for killing the plaintiff 's dog. Trial in the Superior Court, without a jury, before Brigham, Oh. J., who found the following facts : The plaintiff, on February 20, 1884, was the owner of a dog, which was duly licensed by the town of Eeading, and wore a collar, duly marked as required by the Pub. Sts. c. 102, sec. 80. On said February 20, the plaintiff 's dog with another dog, came upon the defendant's premises and there killed and maimed hens of the defendant, which were in his hen-house or shed. The dogs were driven away, and, in about fifteen minutes afterwards, came again upon the defendant's premises and were running toAvard the same shed and hen-house of the defendant, when the defendant, having reasonable cause to be- lieve that the dogs were proceeding to maim and kill others of his hens in said shed and hen-house, shot and killed the plaintiff's dog. Upon these facts the judge ruled that the defendant's kill- ing of the plaintiff's dog under the circumstances stated, was not in law justifiable ; and thereupon found and ordered judg- ment for the plaintiff. The defendant alleged exceptions. T. W. Richardson fov \he defendant. J. 0. Holt for the plaintiff. Holmes, J. The ruling of the court, as we understand it, meant that the facts found, without more, did not disclose a justification for kiUing the plaintiff's dog. It was found that the defendant had reasonable cause to believe that the dog was proceeding to maim and kill his hens, but not that he had reasonable cause to believe that it was necessary to kill the dog in order to prevent him from killing the hens. The justi- fication, therefore, was not made out. {Wright v. Ramscot, 142 EXCEPTIONS: PLAINTIFF A WEONG-DOER. [bk. i. 1 Saund. 84; Janson v. Brown, 1 Camp. 41. See Common- wealth V. Woodward, 102 Mass. 155, 161.) ^ It is unnecessary to consider wliether the common-law remedy is taken away by the Pub. Sts. c. 102, sees. 80-110. Exceptions overruled. EXCEPTIONS, SECTION 13. PLAINTIFF A WRONG- DOER. "White v. Lang. (128MaSB. 598. — 1380.) ToBT, under the Gen. Sts. c. 88, sec. 59, to recover double the amount of damage alleged to have been caused by the defendant's dog. Answer, a general denial. At the trial in the Superior Court before Pitman, J., with- out a jury, it appeared that the plaintiff, on Sunday, April 8, 1877, was driving his horse and buggy along a public highway in the city of Boston; that, while so driving, the defendant's dog jumped at the head of the plaintiff's horse and frightened him so that he became unmanageable, ran and overturned the buggy, whereby the same and other property of the plaintiff was damaged; and that, before the accident, the defendant knew of no mischievous or vicious propensity in the dog to attack or harass persons or animals. The defendant offered evidence to show that the plaintiff was unlawfully travelling on the Lord's day, and not from ne- cessity or charity ; but the judge ruled that these facts would constitute no defence, or prevent the plaintiff from recovering ; and found for the plaintiff in double the amount of damage sustained by him. The defendant alleged exceptions. H. E. Ware for the defendant. E. T. Buss for the plaintiff. 1 A different rule obtains in many States under special statutes. {Mar- shall V. Blackahire, 44 la. 475; Hinckleg v. Emerson, 4 Cow. 351; Cooley on Torts, 2d ed. 408, n.) CH. IV. § 13.] WHITE V. LANG. 143 MoETON, J. "We must assume, for the purposes of this case, that the plaintiff was unlawfully travelling on the Lord's day. But this fact does not defeat his right to recover, unless his unlawful act was a contributory cause of the injury he sus- tained. (MoOrath v. Mervin, 112 Mass. 467; Marble v. Boss, 124 Mass. 44, and cases cited.) It has been held in this Com- monwealth that if a person, who is unlawfully travelling on the Lord's day, is injured by a defect in the highway, or by a collision with a vehicle of another traveller, he cannot recover for the injury. This is upon the ground that his illegal act aids in producing the injury, or, in other words, is a contribu- tory cause. {Lyons v. Desotelle, 124 Mass. 387; Connolly y. Boston, 117 Mass. 64.) On the other hand, it has been held in several cases that if a person, who is at the time acting in violation of law, receives an injury caused by the wrongful or negligent act of another, he may recover therefor if his own illegal act was merely a condition, and not a contributory cause of the injury. {Marble v. Boss, uhi supra ; Steele v. Burhhardt, 104 Mass. 59 ; Kearns V. Sowdan, 104 Mass. 63, n. ; Spofford v. Harlow, 3 Allen, 176.) We are of opinion that the case at bar falls within the last named class. If a man while travelling is injured by an as- sault, the act of travelling cannot in any just sense be said to be a cause of the injury. It is true that, if he were not travelling, he would not have received the injury, but the act of travelling is a condition and not a contributory cause of the injury. The plaintiff when travelling was assaulted and injured by a dog for whose acts the defendant is responsible. (Gen. Sts. o. 88, sec. 59 ; LeForest v. Tolman, 117 Mass. 109 ; Sherman v. Favour, 1 Allen, 191.) The act of travelling had no tendency to produce the assault or the consequent injury ; and therefore, though the plaintiff was travelling in violation of law, it does not defeat his right of recovery. Exceptions overruled. 144 EXCEPTIONS : PLAINTIPE A WEONG-DOER. [bk. r. Platz v. Gity of Cohoes. (89N.Y. 219, — 1882.) G. Z. Stedman for appellant. Rufus TT. PeoHam for respondent. Danfoeth, J. The defendant made an excavation in one of its public streets, and neither removing or levelling the earth taken therefrom, left it in the way. While the respondent was riding with her husband, the carriage in which they were was, without carelessness on the part of either, upset by the pile of earth, and she was injured. That the street was defective through the culpable omission of duty on the part of the defendant is not denied, but the accident happened on Sunday, and the learned counsel for the appellant claims that it owed no duty to the plaintiff to keep its streets in repair on that day, because it did not appear that she was then travel- ling " either from necessity or charity," nor for any purpose permitted by the law. It is plain, therefore, that she was violating the statute relating to the " observance of Sunday " (1 K. S. 628, title 8, chap. 20, art. 8, sec. 70), but we do not perceive how that fact relieves the defendant. It imposed an obligation on the plaintiff to refrain from travelling, and for its violation prescribed a forfeiture of one dollar. It also declares that upon complaint made before a magistrate, and conviction had, that sum might be collected by distress and sale of the goods and chattels of the offender, or if suiiicient could not be found, she might be "committed to the common jail for not less than one or more than three days." The statute goes no further, and we are aware of no principle upon which it can be held that the right to maintain an action in respect of special damage resulting from the omission of the defendant to perform a public duty is taken away because the person injured was at the time disobeying a positive law. The courts are required to construe a penal statute strictly, and having before him for judgment, an alleged violation of the Sunday law. Lord Mansfield said : "If the act of Parliament gives authority to levy but one CH. IV. § 13.] PLATZ V. CITY OP COHOES. 145 penalty, there is an end of the question, for there is no penalty at common law." [Crepps v. Burden, 2 Covvper, 640.) This was a proceeding to enforce the statute, but in Carroll v. Staten Island R. E. Co., 58 N. Y. 126; 17 Am. Eep. 221, an action by a passenger against a carrier to recover damages for injuries received through its carelessness, this court held that the fact, "that the plaintiff was at the time of the injury travelling contrary to the statute," was no defence to the action. The policy of the statute and its limitations were then considered, and the court refused to add to the penalty imposed by it a forfeiture of the right to indemnity for an injury resulting from the defendant's negligence. The Sunday law received a similar construction in Phila., Wil. (& Bolt. R. E. Co. v. Phil, & Havre de Orace Steam Tow- loat Co., 23 How. TJ. S. Sup. Ct. Eep. 209, the court holding that the offender, the plaintiff in the action, was liable to the fine or penalty imposed thereby, and nothing more, saying, " We do not feel justified, therefore, on any principles of justice, equity, or of public policy, in inflicting an additional penalty of $7000, on the libellants, by way of set-off, because their servants may have been subject to a penalty of twenty shillings each for breach of the statute." To the same effect is Baldwin v. Barney, 12 E. I. 392 ; 34 Am. Eep. 670. It may indeed be said that if the plaintiff had obeyed the law, remained at home, and not travelled, the accident would not have happened. That is not enough. The same obedi- ence to the law would have saved the plaintiffs in the cases just cited. It must appear that the disobedience contributed to the accident, or that the statute created a right in the defendant, which it could enforce. But the object of the statute is the promotion of public order, and not the advantage of individuals. The traveller is not declared to be a tres- passer upon the street, nor was the defendant appointed to close it against her. In such an action the fault which pre- vents a recovery is one which directly contributes to the accident; as carelessness in driving, either a vicious or un- manageable horse, or at an improper rate of speed, or without observation of the road, or in an insufficient vehicle, or with a defective harness, or in a state of intoxication, or under some 10 146 EXCEPTIONS: PLAINTIFF A WEONG-DOER. [bk. i. other condition of driver, horse or carriage, which may be seen to have brought about the injury. It may doubtless be said that if the plaintiff had not trav- elled, she would not have been injured ; and this will apply to nearly every case of collision or personal injury from the negligence or wilful act of another. Had the injured party not been present he would not have been hurt. But the act of travel is not one which usually results in injury. It, there- fore, cannot be regarded as the immediate cause of the acci- dent, and of such only the law takes notice. At common law the act was not unlawful, and the plaintiff was still under its protection, and may resort to it against a wrong-doer by whose act she was injured. This has been held in many cases where the person injured was at the time doing an act prohibited by the city ordinance or general statute {Steele v. Burkhardt, 104 Mass. 59 ; Welch v. Wesson, 6 Gray, 505 ; Norris v. Litchfield, 35 IM". H. 271), and even violating the law now in. question, or one similar to it. Carroll v. Staten Islcmd Co. and Phila., Wil. & Bait. JRi R. Co. V. Phila. c& Havre de Grace Towhoat Co. have already been referred to. (See also Schmid v. Humphrey, 48 Iowa, 652 ; 30 Am. Kep. 414.) SvMon V. The Town of Wauwatosa, 29 Wis. 21 ; 9 Am. Kep. 534, is in point, not only in its circumstances but in the rela- tions of the parties. The plaintiff was driving his cattle to market on Sunday, and they w^ere injured by the breaking down of a defective bridge which the defendant, through neg- ligence, had failed properly to maintain. The Sunday statute was relied upon, but the town was held liable. In this State a municipal corporation is regarded as a legal entity, and respon- sible for its omission to perform corporate duties, to the same extent as a natural person would be under the same circum- stances. {Dillon on Municipal Corporations, sec. 778 ; Bailey V. The Mayor, 3 Hill, 531.) The authorities, therefore, which deny to an individual through whose negligence another has been injured immunity from the consequences of his wrong, because the injured person was violating the law in question, apply here. Many of them are referred to in the cases named above and need not again be cited. , There are, as the. counsel for the appellant contends, author- CH. IV. § 13.] PLATZ V. CITY OP COHOES. 147 ities the other way. Decisions by very eminent and learned courts. In Vermont : Johnson v. Town of Irasburgh, 47 Yt. 28 ; 19 Am. Eep. Ill ; Holcomb v. Town of Banly, 51 Vt. 428. In Massachusetts : Bosworih v. Swansey, 10 Met. 363 ; Jones V. Andover, 10 Allen, 18. And immunity is also given by that court, under the same statute, to a railroad corporation through whose negligence the plaintiff was injured. {Smith v. Boston & Maine B.JS., 120 Mass. 490; 21 Am. Kep. 538.) But the decisions already made by us {Meri'itt v. Earle, 29 N. Y. 115 ; Wood V. Erie Railway Co., 72 id. 196 ; 28 Am. Kep. 125 ; Carroll v. Stolen Island R. R. Co., sujprd) are in the contrary direction, and are sustained, we think, by reasons of justice and public policy. In Baldwin v. Barney, supra, a question aris- iflg under the Sunday laws of Massachusetts came before the court in an action by one injured in that State, while travelling on Sunday, by the reckless driving of one also travelling. On the trial the plaintiff was nonsuited, but on appeal the Massa- chusetts cases are reviewed and disapproved, and after a very deliberate discussion of the decisions in that and other States the court held that the defendant could not show the illegality of the plaintiff's act as a defence, and the nonsuit was set, aside. There will be seen great conflict in decided cases, but the weight of authority seems to favor the conclusion already reached by us. (Gooley on Torts, sec. 157; Wharton on Negligence, sec. 331.) * * * * * Judgmerd affirmed. 148 EEMEDIES: DAMAGES. [ek. CHAPTEK V. REMEDIES: DAMAGES. Blodgett v. Stone. (60N.H. 167. —1880.) Case, for diverting the water of a natural stream from the plaintiff's aqueduct. The defendant offered a brief statement alleging that the plaintiff had previously filed a bill in equity for an injunction against the defendant, based substantially on the facts now stated in his declaration, upon which an applica- tion for a temporary injunction had been denied after a full hearing of the facts before one of the justices of the court, and the equity suit had been entered " neither party," after the defendant had filed an answer denying the equity of the bill. No replication was filed, and no decree was ever entered up. The brief statement was rejected, and the defendant excepted. The defendant requested the following instructions to the jury, which the court declined to give, and the defendant excepted : " If the jury find that what Stone did was done from malice, still he is not liable unless his act caused actual damages to the plaintiff, and then only for the actual damages caused to the plaintiff, and the verdict in that case would settle nothing as to the legal rights of the parties." Verdict for the plaintiff. Ladd (& Fletcher for the defendant. May, Drew <& Heywood for the plaintiff. Claek., J. The facts stated in the brief statement constituted no defence, and it was properly rejected. The proceedings in the bill in equity were imrima facie, relieves it from that just implication from ■which the general law is deduced." Whether, within the rule as defined in these cases, a libellous communication is privileged is a question of law ; and wiien upon any trial it has been held as matter of law to be privi- leged, then the burden rests upon the plaintiff to establish as matter of fact that it was maliciously made, and this matter of fact is for the determination of the jury. It has been found difficult to frame this rule in any lan- guage that will furnish a plain guide in all cases. It is easy CH. VII.] BYAM V. COLLINS ET AL. 223 enough to apply the rule in cases where both parties, the one making and the other receiving the communication, are inter- ested in it, or where the parties are related, or where it is made upon request to a party who has an interest in receiving it, or where the party making it has an interest to subserve, or where the party making it is under a legal duty to make it. But when the privilege rests simply on the moral duty to make the communication, there has been much uncertainty and difficulty in applying the rule. The difficulty is to deter- mine what is meant by the term " moral duty," and whether in any given case there is such a duty. In Whiteley v. Adams, 15 C. B. N. S. 392, Erie, Ch. J., said : " Judges who have had, from time to time, to deal with questions as to whether the occasion justified the speaking or the writing of defama- tory matter, have all felt great difficulty in defining what kind of social or moral duty, or what amount of interest will afford a justification ; " and in the same case, Byles, J., said the application of the rule "to particular cases has always been attended with the greatest difficulty; the combinations of circumstances are so infinitely various." The rule as to privileged communications should not be so extended as to open wide the flood-gates of injurious gossip and defamation by which private character may be over- whelmed and irreparable mischief done, and j^et it should be so administered as to give reasonable protection to those who make and receive communications in which they are interested, or in reference to which they have a real, not imaginary, duty. Every one owes a moral duty, not, as a volunteer in a matter in which he has no legal duty or personal interest, to defame another unless he can find a justification in some pressing emergency. In Coxhead v. Richards, 2 Mann. G. & S. 569, 602, Coltraan, J., said : " The duty of not slandering your neighbor on insufficient grounds is so clear that a violation of that duty ought not to be sanctioned in the case of volun- tary communications except under circumstances of great urgency and gravity. It may be said that it is very hard on a defendant to be subject to heavy damages when he has acted honestly and when nothing more can be imputed to him than an error in judgment. It may be hard, but it is 15 226 PEIVILEGED COMMUNICATIONS : DUTY. [bk. ii. very hard on the other hand to be falsely accused. It is to be borne in mind that people are but too apt rashly to think ill of others ; the propensity to tale-bearing and slander is so strong amongst mankind, and when suspicions are aroused, men are so apt to entertain them without due examination, in cases where their interests are concerned, that it is neces- sary to hold the rule strictly as to any officious intermeddling by which the character of others is affected ; " and in the same case Cresswell, J., said : " If the property of the ship- owner on the one hand was at stake, the character of the captain was at stake on the other; and I cannot but think that the moral duty not to publish of the latter defamatory matter which he did not hnow to be true, was quite as strong as the duty to convey to the shipowner that which he believed to be true." One may not go about in the community and, acting upon mere rumors, proclaim to everybody the supposed frailties or bad character of his neighbor, however firmly he may believe such rumors, and be convinced that he owes a social duty to give tiiem currency that the victim of them may be avoided ; and, ordinarily, one cannot with safety, however free he may be from actual malice as a volunteer, pour the poison of such rumors into the ears of one who might be affected if the rumors were true. I cite a few cases by way of illustration. In Godson v. Home, 1 B. & B. 7, one Noah solicited the plaintiff to be his attorney in an action. The defendant, apparently a total stranger, wrote to Noah to dep- recate his so employing the plaintiff, and this was held to be clearly not a .confidential or privileged communication. In Storey v. Challands, 8 C. & P. 234, one Hersford \vas about to deal with the plaintiff when he met the defendant, who said at once, without his opinion being asked at all, " If you have anything to do with Storey you will live to repent it; he is a most unprincipled man," etc., and Lord Denman directed a verdict for the plaintiff because the defendant began by making the statement without waiting to be asked. In York V. Johnson, 116 Mass. 482, the defendant, a member of a church, was appointed with the plaintiff and other members of the church on a committee to prepare a Christmas festival CH. vn.] BYAM v. COLLINS ET AL. 227 for the Sunday-school. He declined to serve, and being asked his reason by Mrs. Newton, a member of the committee, said that a third member of the committee, a married man, had the venereal disease, and being asked where he got it said he did not know, but that " he had been with the plaintiff," who was a woman, and it was held that this was not a privileged communication. There was no question of the defendant's good faith and reasonable grounds of belief in making the communication, and yet Devens, J., in the opinion said : " The ruling requested by the defendant that the communication made by him to Mrs. Newton was a privileged one and not actionable. except with proof of express malice, was properly refused. There was no duty which he owed to Mrs. Newton that authorized him to inform her of the defamatory charges against the plaintiff, and no interest of his own which re- quired protection justified it. He had declined to serve upon the same committee with Mrs. York ; but he was under no obligation to give any reason therefor, however persistently called upon to do so ; and even if Mrs. Newton had an in- terest in knowing the character of Mrs. York, as a member of the same church, it was an interest of the same description which every member of a community has in knowing the character of other members of the same community with whom they are necessarily brought in contact, and would not shield a person who uttered words otherwise slanderous." Having thus stated the general principles of law applicable to a case like this, I will now bring to mind the facts of this case so far as they pertain to the defamatory letter. The plaintiff was a lawyer and had been engaged in the practice of his profession at Caledonia for several months and resided there at the date of the letter. Miss Dora McNaughton and the defendant also resided there. The plaintiff was on terms of social intimacy with Dora, and was paying her attention with a view to matrimony, and some time subsequently mar- ried her. Mrs. Collins was about twenty-five years old, two years and a half younger than Dora, and was married No- vember 2, 1875 ; and prior to that she had always resided within a mile and a half from the residence of Dora, and they had been very intimate friends. Dora had a father and no 228 PRIVILEGED COMMUNICATIONS : DUTY. [bk. ii. brother, and Mrs. Collins had a brother. During the time of this intimacy, and at some time before the marriage of Mrs. CoUins, Dora repeatedly requested of her that if she " knew anything about any young man she went with, or in fact any young man in the place, to tell her because her father did not go out a great deal and had no means of knowing, and people would not be apt to tell him ;" that she, Mrs. Collins, had a brother and would be more apt to hear what was said about young men, and Dora wished her to tell what she knew. Their intimacy continued after the marriage of Mrs. Collins until January before the letter was written, when a coldness sprang up between them. They became somewhat estranged and their intimacy ceased. Mrs. Collins testified that when she wrote the letter she thought just as much of Dora as if she had belonged to her family ; that she had heard the de- famatory rumors and believed them, and, therefore, did not wish her to marry the plaintiff. It must be observed that the request of Dora to Mrs. Collins for information about young men was not made when she was contemplating marriage to any J^oung man, and that the request was not for information about any particular young man, or about any young man in whom she had any interest ; but it was for information about the young men generally with whom she associated. Nor literally construing the language, did Dora wish for informa- tion as to the gossip and rumors afloat about young men. What she asked for was such facts as Mrs. Collins kneio, and not for her opinion about young men or her estimation of them. But if we assume that the request was for information as to all the rumors about young men which came to the knowledge of Mrs. Collins, the case of the defendant is not improved. At that time the plaintiff was not within Dora's contemplation, as she did not know him until long after. The request was not for information as to any young man who might pay her attention with a view to matrimony ; it w^as for information about all the young men in her circle. Mrs. Collins was not related to her and was under no duty to give the information, and Dora had no sufficient interest to receive the information. Mrs. Collins was under no greater duty to give the information to Dora than to any of the other young CH. vii.] BYAM V. COLLINS ET AL. 229 ladies of her acquaintance in the same circle. She could prop- erly tell what she knew about young men, but could not de- fame them, even upon request, by telling what she did not know, what nobody knew, but what she believed upon mere rumors and hearsay ■ to be true. The mere fact that she was requested or even urged to give the information, did not make the defamatory communication privileged. {York v. Johnson, supra.) But there is no proof that this letter was written to Dora in pursuance of any request made by her four years before its date, and there was no evidence which authorized the jury to find so if they, did so find. On the contrary, it is clear that Dora would not, at the time, have gone to Mrs. CoUins for any information as to the plaintiff if she had desired any, and that she did not wish for the information from her ; and that this was known to Mrs. Collins the language of the letter clearly shows. In the defendant's answer it is alleged that Mrs. Collins' letter was prompted by her friendship for Dora and by the solicitation of " mutual friends to interfere in the matter and break off the relations which seemed to exist be- tween the plaintiff and Dora," and there is no averment that it was written in pursuance of any request coming from Dora. The letter itself, as well as the evidence of Mrs. Collins, shows unmistakably that it was thus prompted. Mrs. Collins did not testify that she wrote the letter in pursuance of any request of Dora, and the action was not tried upon that theory, and no question as to the request was submitted to the jury. The trial judge charged the jury broadly that if the relations of Dora and Mrs. Collins were of such an intimate character as to warrant the latter in informing the former "against a per- son whom she had reason to believe was not a fit person, and if Mrs. Collins acted fairly, in good faith, conscientiously, al- though mistakenly, there can be no recovery against her," upon the count in the complaint for libel ; and then the court said : " Did Mrs. Collins in writing that letter act fairly, act judiciously, not in the matter of good taste, but did she with the facts which had been brought to her mind act in a con- scientious and proper manner ? If she did, if she acted as an ordinary prudent person would act under the same circum- I 2a0 PEIVILEGED COMMUNICATIONS : DUTY. [bk. ii. stances, if she had probable ground for her belief, she was justified in writing the letter." Mrs. Collins appears then as a mere volunteer, writing the letter to break up relations which she feared might lead to the marriage of the plaintiff to Dora. If she had been the mother of Dora, or other near relative, or if she had been asked by Dora for information as to the plaintiff's character and standing, she could with pro- priety have given any information she possessed affecting his character, providing she acted in good faith and without mal- ice. But a mere volunteer having no duty to perform, no interest to subserve, interferes with the relations between two such people at her peril. The rules of law should not be so administered as to encourage such intermeddling, which may not only blast reputation but possibly wreck lives. In such a case the duty not to defame is more pressing than the duty to communicate mere defamatory rumors not known to be true. Some loose expressions may doubtless be found in text-books and judicial opinions supporting the contention of the defend- ant that this letter was, in some sense, a privileged communi- cation. But, after a very careful research, I believe thei'e is absolutely no reported decision to that effect. The case which is as favorable to the defendant as any, if not more favorable than that of any other, is that of Todd v. Hawkins, 8 Oar. & P. 88. In that case, a widow, being about to marry the plain- tiff, the defendant, who had married her daughter, wrote her a letter containing imputations on the plaintiff 's character, and advising a diligent and extensive inquiry into his character, and it was held that the letter was written on a justifiable occasion, and that the defendant was justified in writing it, provided the jury was satisfied that, in writing it, he acted bona fide, although the imputations contained in the letter were false or based upon the most erroneous information ; and if he used expressions, however harsh, hasty or untrue, yet honafide, and believing them to be true, he was justified in so doing. The letter was held privileged solely upon the ground of the near relationship existing between the widow and the defendant, her son-in-law, which justified his voluntary interference. But the judge expressly stated that if the widow and defendant had been strangers to each other, there would have been a CH. VII.] BYAM V. COLLINS ET AL. 231 mere question of damage. A case nearer in point is that of The " Count Joannes" v. Bennett, 5 Allen, 169. There it was held that a letter to a woman containing libellous matter con- cerning her suitor, cannot be justified on the ground that the writer was her friend and former pastor, and that the letter was written at the request of her parents, who assented to all its contents. The decision was put upon the ground that, in writing the letter, the defendant had no interest of his own to serve or protect ; that he was not in the exercise of any legal or moral duty ; that the proposed marriage did not even in- volve any sacrifice of his feelings or injury to his affections, and did not, in any way, interfere with or disturb his personal or social relations; that the person to whom the letter was addressed was not conhected with him by the ties of consan- guinity or kindred, and that he had no peculiar interest in her. Some years before the same learned court decided the case of Krebes v. Oliver, 12 Gray, 239, wherein it was held that state- ments that a man had been imprisoned for larceny, made to the family of a woman he is about to marry, by one who is no relation of either, and not in answer to an inquiry, are not privileged communications. In the opinion it is said : " A mere friendly acquaintance or regard does not impose a duty of communicating charges of a defamatory character concerning a third person, although they may be told to one who has a strong interest in knowing them. The duty of refraining from the utterance of slanderous words, without knowing or ascer- taining their truth, far outweighs any claim of mere friendship." I am, therefore, of opinion that the letter was in no sense upon the facts as they appear in the record, a privileged communication. There was, also, error in the court below as to the verbal slanders alleged in the second cause of action ; and what I have already said applies, in part, to these slanders. There was no substantial denial of these slanders in the answer, and there is no dispute in the evidence that they were uttered, and there can be no claim upon the evidence that they were justi- fied. The trial judge charged the jury that the words were slanderous. But he said to them that " there is not that pre- sumption of malice in the case of oral slanders that there is in 232 PRIVILEGED COMMUNICATIOlSrS : DUTY. [bk. ri. the case of deliberate writing." This was excepted to by plain- tiff 's counsel, and was clearly erroneous. In the case of oral defamation, as in the case of written, if the words uttered were not privileged, the law implies malice. The judge further charged the jury, in substance, that the words, if uttered under the circumstances testified to by Mrs. Collins, were privileged. She testified, in substance, that she uttered the words to Mr. Cameron in confidence after the most urgent solicitation on his part that she should tell him what she knew about the plaintiff. But defamatory words do not become privileged merely because uttered in the strictest confidence by one friend to another, nor because uttered upon the most urgent solicitation. She was under no duty to utter them to him, and she had no interest to subserve by uttering them. He had no interest or duty to hear the defamatory words, and had no right to demand that he might hear them ; and under such circumstances there is no authority holding that any privilege attaches to such communications. There was no evidence that would authorize a jury to find that Cam- eron sought the interview with Mrs. Collins, as an emissary from or an agent of the plaintiff, or that at the plaintiff's solic- itation or instigation he obtained the slanderous communica- tions from her, and he did not profess or assume to act for him on that occasion. He was the mutual friend of the parties, and seems to have sought the interview with her either to gratify his curiosity or to prevent the impending litigation between the parties. But even if he obtained the interview with her at the solicitation of the plaintifif, and as his friend, she could not claim that her slanderous words uttered at such interview were privileged. The trial judge, therefore, erred in refusing to charge the jury that there was no question for them as to the second cause of action but one of damages. Therefore, without noticing other exceptions to rulings upon the trial, for the fundamental errors herein pointed out, the judgment should be reversed and a new trial granted.^ 1 The able dissenting opinion of Danforth, J., will repay perusal. Some cases of absolute privilege have been given under " Exceptions to Liability," supra. See, also, Wright v. Lothrop, 149 Mass. 385, witness before CH. Tin.] STEWAET v. STEARNS. 233 CHAPTER YIII. DECEIT: FALSEHOOD IN FACT. Stewart v. Steaens. (63NH. 99. — 1884.) Hay (& WalTcer and W. L. Foster for the plaintiff. J. Y. Mugridge and Chase c& Streeter for the defendant. Claek, J. The finding of the referee is authorized by the facts appearing in the case. If the defendant made false and legislative committee. Tuckerman v. Sonnerschein, 62 111. 115, trauslating libellous words for an attorney. Moore v. M. N. Bank, 123 N. Y. 420, irrelevant allegations in legal papers, and dissenting opinion, p. 428. Counsel's statements at trial are absolutely privileged in England (Munster v. Lamb, 11 Q. B. D. 588), but in America they must be pertinent iMarsh v. EUsworth, 50 N. Y. 309; Hoar v. Wood, 3 Met. 193). Fair comment or criticism, distinguished from statements of fact. (Davis V. Shepston, 11 App. C. 187 (publication of a report containing false charges of specific acts) ; GoU v. Pulsifer, 122 Mass. 235 (Cardiff Giant case) ; SiJlars v. Collier, 151 Mass. 50 (" I am sorry that the representative from this district had a change of heart. Sometimes a change of heart comes from the pocket," — held not libellous. Scandalum Magnalum not known in United States); Walker v. Hawley, 56 Conn. 559; 16 At. 674.) Private duty. {Fahr v. Hays, 50 N. J. L. 275 (plaintiff referred to defend- ant for credit, and defendant called plaintiff " a thief," etc., in the presence of disinterested parties) —privileged. Beals v. Thompson, 149 Mass. 405 (letter from creditor to debtor's husband) — not privileged. Lovell Co. v. Houghton . Co., 116 N. Y. 520 (defendants charged plaintiffs with infringing copyright) — privileged.) The communications of mercantile agencies are privileged only when made upon special request. {King v. Patterson, 49 N. J. L. 417 (1887), and cases in prevailing and dissenting opinions; Pollasky v. Minchener, 46 N. W. 5 (1890, Mich. ) . ) Not libellous for a mercantile agency to publish that ajudgment for $4000 has been rendered against one ; but if false, and special damage is shown, an action will lie. ( Woodruff y. Bradstreet, 116 N. Y. 217.) 234 DECEIT : EALSEHOOD IN FACT. [bk. ii. fraudulent representations upon material matters, calculated and intended to mislead and prevent examination and inquiry as to the ciiaracter and quality of the stock of goods, to induce the plaintiff to make the trade, and the plaintiff, in the exercise of ordinary prudence, relying upon such representations as true, was induced to enter into the contract and was thereby de- frauded, he is entitled to damages. Upon competent evidence the referee has found that the defendant, knowing that the plaintiff was unacquainted with such goods as made up the stock in his store, both before the making of the written agreement and during the taking of the inventory, represented and stated to the plaintiff, in substance, that his stock was clean and desirable, and that the goods were of good styles and salable ; that the plaintiff, relying upon the defendant's representations, did not make a careful exarnination of the goods, and did not avail himself qf the means provided in the written agreement for fixing the prices of the goods ; that the stock contained renmants of carpets, and both carpets and papers of old patterns and styles, which were not salable at the prices put upon them in the inventory, and nothing was said by the defendant to the plaintiff about this ; and that the plaintiff relied upon the representations made by the defendant, and was deceived by them and by the suppression of facts relating to the stock. It is also to be assumed, from the find- ing of the referee for the plaintiff, that the defendant knew the representations were false, that they were made as state- ments of material facts to deceive the plaintiff and were not mere expressions of opinion, and that the plaintiff was justified in relying upon them. These questions of fact are included in the general finding. {Noyes v. Patrick, 58 N. H. 618.) If the representations were false, the defendant knew them to be so, and the conclusion is almost irresistible that they were made with intent to deceive and defraud. (Benj. Sales, sec. 460.) It is objected that the plaintiff was not justified in relying upon the representations of the defendant, and that the referee erred in holding that the rule caveat emptor did not apply to tliis case. If the rule was of universal apphcation, an action of deceit for false representations in a sale could never be main- tained by the purchaser. It may be difficult to draw the line CH. VIII.] STEWART v. STEAENS. 235 which separates cases within the rule from those to which it does not apply, as each case depends to some extent upon its pe- culiar circumstances ; but it applies generally to cases free from actual fraud, where the parties deal upon an equal footing and with equal means of knowledge ; and it is not applicable, as a general rule, where false and fraudulent representations of mate- rial facts are made by the vendor, and the parties have not equal facilities for ascertaining the truth. In such cases the purchaser has the right to rely upon the statements of the vendor ; and when the purchaser is justified in relying upon the representa- tions of the vendor, the rule caveat emptor does not apply. Where the statements are of material facts, essentially con- nected with the substance of the transaction, and not mere general commendations or expressions of opinion, and are con- cerning matters which from their nature or situation are pecul- iarly within the knowledge of the vendor, the purchaser is justified in relying on them ; and in the absence of any knowl- edge of his own, or of any facts which should excite suspicion, he is not bound to make inquiries and examine for himself. Under such circumstances it does not lie in the mouth of the vendor to complain that the vendee took him at his word. On the other hand, where the representations consist of general commendations or mere expressions of opinion, or where they relate to matters not peculiarly within the knowledge of the vendor, the purchaser is not justified in relying upon them, but is bound to examine for himself so as to ascertain the truth. (2 Pom. Eq. Juris, sees. 891, 892.) In this case the parties were not on an equal footing, and had not equal means of knowledge. The defendant had an experience of fifteen years in trade, and knew the exact condition of his stock. The plaintiff had no acquaintance with such goods, and could learn nothing of their style and quality from an examination. The defects in the goo^ds were to him undiscoverable defects. The representations made by the defendant related to material matters of fact, and the plaintiff was justified in relying on them. He was not guilty of negligence in assuming them to be true, nor was it his duty to employ a competent person to examine the goods. In Poland v. Brownell, 131 Mass. 138, cited by the defend- 236 MISEEPEESENTATION OF LAW. [bk. ii. ant in argument as a case strongly resembling the case at bar, it is stated in the opinion of the court "that the evidence showed that the plaintiff relied on his own examination and the advice of a friend, and for all that appeared both buyer and seller had equal means of information, and were equally well qualified to judge of the value of the property." ***** Judgment for the plaintiff on the report?- MISBEPBESENTATION OF LAW. "Westeevelt v. Demaeest. (46N'. J. L. 37. — 1884.) For the plaintiff, Bedle, Muirheid (& McGee. For the defendants, Charles H. Voorhis and W. M. Johnson. Yan Syokel, J. ... It is clear that no contract was entered into between these parties, and that no recovery can be had on the ground of a, contract liability. But the statement that directors and stockholders were responsible for all debts and engagements of the bank was false, to the knowledge of defendants, and therefore fraudulent. It appearing as one of the findings of fact in the case that the plaintiff made his deposits relying on the truth of this statement, he would be entitled to recover the loss he sustained by acting upon it, in an action for deceit. It also appears from the pass-book that entries to the credit of plaintiff were made in it by the bank 1 (Cf. Holhrook v. Connor, 60 Me. 578; 11 Am. R. 212.) In Bishop v. Small, 63 Me. 12, the court held that representations as to what a patent right cost the vendor, or was sold for by him, or as to profits that could be derived from it, were statements of opinions. (Contra Van Epps v. Harrison, 6 Hill. 63.) Purchaser Is entitled to rely on representation that vendor's price is the same as that of A and B in the same business. {Conlan v. Eoe^ier, 52 N. J. L. 53.) So vendor may rely on purchaser's assertion that he has bought a neighbor's hops at a certain price. {Smith v. Countryman, 30 N. Y. 655.) CH. viii.] CHATHAM PUENACE CO. v. MOEJATT. 237 officers on the 1st day of May and 1st day of November, in each year, from 1873 to 1879 inclusive. The return of this pass-book to the plaintiff on each of these occasions, with the aforesaid printed statement upon it, vras a reiteration of the false representation, and it is manifest that thereby the plain- tiff was induced to permit his deposits to remain and accumu- late in the bank. This deceit having been practised by the defendants within six years, they could not avail themselves of the statute of limita- tions as a defence. Although recovery in this case cannot be maintained upon the basis of a contract, it is obvious that the granting of a new trial would be of no avail to the defendants, for the pleadings would be amended by the trial court, and upon the incontrovertible facts a verdict must necessarily pass in favor of the plaintiff for the loss the false representation has occasioned. That loss was the sum deposited, with interest, being the same amount for which the verdict has been found in this case. The plaintiff being clearly entitled to recover the sum found, the necessary amendment may be made. ■ The rule to show cause should he discharged.^ RECKLESS IGNORANCE. Chatham Fuenace Co. v. Moffatt, (UTMass. 403. — 1888.) ToET for false and fraudulent representations made by the defendant, whereby the plaintiff was induced to take a lease of a mine, and to purchase certain mining machinery. Trial in the Superior Court, without a jury, before Barker, J., who refused to give certain rulings requested by the defendant, and found for the plaintiff. The defendant alleged exceptions, the substance of which appears in the opinion. 1 Cf. Fish V. Cleland, 33 111. 238 ; Cook v. Nathan, 16 Barb. 842; Bavis v. Betz, 66 Ala. 2Q6 ; Hirshfield v. London Ry. Co., 2 Q. B. D. 1. 233 EECKLESS IGNOEANCE. [bk. ii. M. Wilcox and E. M. Wood for the defendant. H. L. Dawes and T. P. Pingree for the plaintiff. C. Allen, J. It is well settled in this Commonwealth that the charge of fraudulent intent, in an action for deceit, may be maintained by proof of a statement made, as of the party's own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate or judgment, but is susceptible of actual knowledge ; and in such case it is not necessary to make any further proof of an actual intent to deceive. The fraud consists in stating that the party knows the thing to exist, when he does not know it to exist; and if he does not know it to exist, he must ordinarily be deemed to know that he does not. Forgetfulness of its existence after a former knowledge, or a mere belief of its existence, will not warrant or excuse a statement of actual knowledge. This rule has been steadily adhered to in this Commonwealth, and rests alike on sound policy and on sound legal principles. {Cole V. Cassidy, 138 Mass. 437 ; Savage v. Stevens, 126 Mass. 207; Tucker v. White, 125 Mass. 3M; Litchfield v. Hutchin- son, 117 Mass. 195 ; MilUTcen v. Thorndike, 103 Mass. 382 ; Fisher v. Mellen, 103 Mass. 503 ; Stone v. Denny, 4 Met. 151 ; Page v. Bent, 2 Met. 371 ; Hazard v. Irwin, 18 Pick. 95.) And though this doctrine has not always been fully main- tained elsewhere, it is supported by the following authorities, among others: Cooper v. Schlesinger, 111 U. S. 148 ; Bower v. Fenn, 90 Penn. St. 359 ; Brownlie v. Campbell, 5 App. Cas. 925, 953, by Lord Blackburn; Reese River Mining Co. v. SmitJi, L. E. 4 H. L. 64, 79, 80, by Lord Cairns ; Slim v. Croucher, 1 DeG. .F. & J. 518, by Lord Campbell. See, also, Peek v. Derry, 59 L. T. (N. S.) 78, which has been published since this decision was announced. In the present case the defendant held a lease of land, in which there was iron ore. The mine had formerly been worked, but operations had ceased, and the mine had become filled with water and debris. The defendant sought to sell this lease to the plaintiff, and represented to the plaintiff, as of his own knowledge, that there was a large quantity of iron CH. viii.] CHATHAM FURNACE CO. v. MOFFATT. 239 ore, from 8000 to 10,000 tons, in his ore bed, uncovered and ready to be taken out, and visible when the bed was free from water and debris. The material point was, whether this mass of iron ore, which did in truth exist under ground, was within the boundaries of the land included in the defendant's lease, and the material part of the defendant's statement was, that this was in his ore bed ; and the representations were not in fact true in this, that while in a mine connecting with the defendant's shafts there was ore sufficient in quantity and location relative to drifts to satisfy these representations, if it had been in the land covered by the defendant's lease, that ore was not in the defendant's mine, but was in the adjoining mine ; and the defendant's mine was in fact worked out. During the negotiations, the defendant exhibited to the plaintiff a plan of the survey of the mine, which had been made for him, and the plaintiff took a copy of it. In making this plan, the surveyor, with the defendant's knowledge and assent, did not take the course of the first line leading from the shaft through which the mine was entered, but assumed it to be due north ; and the defendant never took any means to verify the course of this line. In point of fact, this line did not run due north, but ran to the west of north. If it had run due north, the survey, which was in other respects correct, would have correctly shown the mass of iron ore in question to have been within the boundaries of the land covered by the defendant's lease ; but in consequence of this erroneous assump- tion the survey was misleading, the iron ore being in fact out- side of those boundaries. It thus appears that the defend- ant knew that what purported to be a survey was not in all respects an actual survey, and that the line upon which all the others depended had not been verified, but was merely assumed; and this was not disclosed to the plaintiff. The defendant took it upon himself to assert, as of his own knowl- edge, that this large mass of ore was in his ore bed, that is, within his boundaries ; and in support of this assertion he exhibited the plan of the survey, the first line of which had not been verified, and was erroneous. Now this statement was clearly of a thing which was susceptible of knowledge. A real survey, all the lines of which had been properly veri- 240 DUTY TO GIVE INFOEMATION. [bk. ri. fied, would have shown with accuracy where the ore was situ- ated. It was within the defendant's knowledge that the first line of the plan had not been verified. If under such circum- stances he chose to take it upon himself to say that he knew that the mass of ore which had been discovered was in his ore bed, in reliance upon a plan which he knew was not fully verified, it might properly be found that the charge of fraudu- lent misrepresentation was sustained, although he believed his statement to be true. The case of Milliken v. Thorndike, 103 Mass. 382, bears a considerable resemblance to the present in its facts. That was an action by a lessor to recover rent of a store, which proved unsafe, certain of the walls having settled or fallen in shortly after the execution of the lease. The lessoi* exhibited plans, and, in reply to a question if the drains were where they were to be according to the plans, said that the store was built ac- cording to the plans in every particular ; but this appeared by the verdict of the jury to be erroneous. The court said, by Mr. Justice Colt, that the representation " was of a fact, the ex- istence of which was not open and visible, of which the plain- tiff (the lessor) had superior means of knowledge, and the language in which it was made contained no words of qualifi- cation or doubt. The evidence fully warranted the verdict of the jury." ^ Exceptions overruled. DUTY TO GIVE INFORMATION. Anonymous. (67 N. T. 698.— 18T6.) Samuel Sand for the appellants. Henry H. Morange for the respondents. This was an appeal from an order of the General Term af- firming an order of Special Terra, which denied a motion on the part of defendants to vacate an order of arrest. 1 Cf. Oberlander v. Speiss, 45 N. Y, 175. CH. VIII.] ANONYMOUS. 241 The order of arrest was based upon the provision of the Code (sec. 179, sub. 4), authorizing an arrest "when defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action was brought." The affi- davits upon which the order of arrest was granted, showed substantially that defendants had for a number of years been doing an extensive business as bankers, living in great style, having a large banking-house and many employees, and that they were reputed to be very wealthy. Plaintiffs had been doing business with them for several years, believing them to be perfectly responsible. Plaintiffs purchased of them a sight draft on a London bank ; at the time defendants were hopelessly insolvent, their assets being only sufficient to pay about forty per cent of their indebtedness. This con- dition of affairs was known to them. Seven days after the draft was purchased defendants closed their doors and made an assignment. The draft was presented and payment re- fused. Defendants did not show what capital, if any, they had in their business, or by what disaster they became so largely insolvent, nor what reasons, if any, they had to hope they could continue on in their business. Held, that the order of arrest was properly granted. Defendants' affidavit showed that when the draft was sold they had a large amount of money on deposit in the London bank. Before, however, the draft reached London, this de- posit had been exhausted by prior drafts and letters of credit, and defendants had become largely indebted to the drawer. Held, that the fact of the deposit did not relieve defendants, and was of no importance. The court say : " This is not lilce the case of a trader who has become em- barrassed and insolvent and yet has reasonable hopes that by continuing in business he may retrieve his fortunes. In such a case he may buy goods on credit, making no false representa- tions, without the necessary imputation of dishonesty. {Nich- ols V. Pinner, 18 N". T. 295 ; Brown v. Montgomery, 20 id. 287 ; Johnson v. Morrell, 2 Keyes, 655 ; Chafee v. Fort, 2 Lans. 81.) But it is believed that no case can be found in the books holding that a trader who was hopelessly insolvent, knew that he could not pay his debts and that he must fail in business, 16 242 INTENTION OF THE STATEMENT. [bk. ii. and thus disappoint his creditors, could honestly take advan- tage of a credit induced by his apparent prosperity and thus obtain property which he had every reason to believe he could never pay for. In such a case he does an act the necessary result of which will be to cheat and defraud another and tne intention to cheat will be inferred." ^ INTENTION OF THE STATEMENT. Botd's Exes. v. Beowne. (6BaiT, 310.— 1847.) This was an action on the case sur deceit, brought by Wil- liam H. Brown & Co., against William R. Smith and Alex- ander Jordan, executors of John A. Boyd, deceased, to recover damages for false and fraudulent representations made by the defendant's testator, as to the credit of a third person. It was alleged in substance, in the declaration, that John A. Boyd falsely and fraudulently recommended one John B. Miller as a person worthy of being trusted for merchandise, and thereby induced the plaintiffs to sell him goods on credit to the amount of $389 ; that, at the time of such representations, the said Miller was not worthy of credit; that Boyd knew his representations to be false, and that Miller was at that time greatly indebted to him and various other persons, and in bad circumstances ; that no part of the goods sold by plaintiffs had been paid for, and that the said John B. Miller was, and still is, wholly unable to pay for the same. Greenough for the plaintiff in error. Hegins & Bellas contra. 1 (Ilotchkin v. Third N. Bk. of M., 27 N. E. 1050 (N. Y. App. 1891).) Sup- pression, witli intent to deceive, of a material fact wlilch one is in good faith bound to disclose is equivalent to a false representation. {Stewart V. Wyoming Ranch & Co., 128 TJ. S. 383.) As to deceit in renting a house, see Franldin v. Brown, 118 N. Y. 110. CH. VIII.] BOYD'S EXECUTOES v. BROWNE. 243 Bell, J. We see nothing exceptionable in the charge of the court. The principles upon which this peculiar action is based were correctly stated, and the facts fairly put before the jury. The ground of action is the deceit practised upon the injured party; and this may be either by the positive statement of a falsehood, or the suppression of material facts, which the in- quiring party is entitled to know. The question always is, did the defendant knowingly falsify, or wilfully suppress the truth, with a view of giving a third party a credit to which he was not entitled. It is not necessary there should be collusion between the party falsely recommending and he who is recom- mended ; nor is it essential, in support of the action, that either of them intended to cheat and defraud the trusting party at the time. It is enough, if such has been the effect of the falsehood relied on. Misrepresentations of this character are frequently made from inconsiderate good nature, prompt- ing a desire to benefit a third person, and without a view of advancing a party's own interests. But the motives by which he was actuated do not enter into the inquiry. If he mal^e representations productive of loss to another, knowing such representations to be false, he is responsible as for a fraudulent deceit. These doctrines are fully established by the cases of Baly V. I^ree, 3 Term Eep. 51 ; I^oster v. Charles, 6 Bing. 369 ; S. C. 7 Bing. 105 ; Corhit v. Brown, 8 Bing. 33 ; Allen v. Addington, 7 Wend. 9. In Fosters. Charles, when it was first in Westmin- ster Hall, Tindal, Ch. J., said: " It has been argued that it is not sufficient to show that a representation on which a plaintiff has acted was false within the knowledge of the defendant, and that damage has ensued to the plaintiff ; but that the plaintiff must also show the motive which actuated the defendant. I am not aware of any authority for such a position ; nor can it be material what the motive Avas. The law will infer an im- proper motive, if what the defendant says is false within his own knowledge, and is the occasion of damage to the plain- tiff." All the other judges fully concurred in the soundness of those views, and indeed they recommend themselves by their intrinsic merit. But that part of the instruction chiefly complained of here is the direction to the jury, that the sup- pression of the fact by Boyd, that he had taken securities for 244 STATEMENTS TO A CLASS OF PERSONS, [bk. ii. large amounts from Miller in payment of the merchandise sold by Boyd to him, was evidence of fraud and deceit. The soundness of this opinion is fully, shown by the authorities, and particularly by Corhit v. Brown, 8 Bing. 33 ; Allen v. Add- ington, 7 Wend. 9, and Ward v. Centre, 3 Johns. Rep. 271. It is scarcely necessary to add that in the case at bar there was abundant evidence, if believed, to establish the fact that Boyd took more than ordinary pains to inculcate, a falsehood, which he must have known was untrue, for the purpose of inducing plaintiffs to credit Miller. ***** Judgment affirmed. ^ STATEMENTS TO A CLASS OF PERSONS. Eaton, Cols & B. Co. v. Avert. (83 N. T. 31. — 1880.) ^ John U. Bergen for appellant. John L. Hill for respondent. Bapallo, J. This is an action for deceit in obtaining the sale and delivery of goods to the firm of Avery & Biggins, by means of false representations made by the defendant as to the pecuniary condition of his firm. The representations charged were not made directly by the defendant to the plain- tiff, but are alleged to have been made by him to a mercantile agency (Dun, Barlow & Co.), or its agent, and by it commu- nicated to the plaintiff, who claims that it delivered the goods to Avery & Biggins on credit, on the faith of such representa- tions. The counsel for the defendant contends that the plain- tiff cannot maintain an action against the defendant for false representations made by liim to Dun, Barlow & Co., or its agent, and that such representations, assuming them to have been made, are not sufficiently connected with the dealing between the defendant and the plaintiff to enable the latter to recover by reason thereof. On this point we are of opinion that the law was correctly stated by the learned judge before CH. VIII.] EATON, COLE & B. CO. v. AVEEY. 245 whom the trial was had, in his charge to the jury, wherein he instructed them that if the defendant, when he was called upon by the agent of Dun, Barlow & Co., made the statements alleged in the complaint as to the capital of the firm of Avery & Kiggins, and they were false, and so known to be by the defendant, and were made with the intent that they should be communicated to and believed by persons interested in ascertaining the pecuniary responsibility of the firm, and with intent to procure credit and defraud such persons thereby, and such statements were communicated to the plaintiff and relied upon by it, and the alleged sale was procured thereby, the plaintiff was entitled to recover. The rule thus laid down accords with the principle of adjudications in analogous cases, in which it has been held that it is not essential that a rep- resentation should be addressed directly to the party who seeks a remedy for having been deceived and defrauded by means thereof. {Gazeaux v. Mali, 25 Barb. 578 ; Nevibery v. Garland, 31 id. 121 ; Broff v. Mali, 36 -K Y. 200; Mm^gan V. Skiddy, 62 id. 319 ; Commonwealth v. Call, 21 Pick. 515, 523 ; Commonwealth v. Harley, 7 Mete. 462.) The principle of these cases is peculiarly applicable to the case of state- ments made to mercantile agencies. Proof was given on the trial as to the business and ofiBce of these agencies, but they are so well known, and have been so often the subject of discussion in adjudicated cases, that the courts can take judicial notice of them. Their business is to collect informa- tion as to the circumstances, standing and pecuniary ability of merchants and dealers throughout the country, and keep accounts thereof, so that the subscribers of the agency, when applied to by a customer to sell goods to him on credit, may, by resorting to the agency or to the lists which it publishes, ascertain the standing and responsibility of the customer to whom it is proposed to extend credit. A person furnishing information to such an agency in relation to his own circum- stances, means and pecuniary responsibility, can have no other motive in so doing than to enable the agency to com- municate such information to persons who may be interested in obtaining it, for their guidance in giving credit to the party; and if a merchant furnishes to such an agency a 216 ST ATE;»1EXTS TO A CLASS OF PERSONS, [bk. ii. wilfully false statement of his circumstances or pecuniary ability, with intent to obtain a standing and credit to which he knows that he is not justly entitled, and thus to defraud whoever may resort to the agency, and in reliance upon the false information there lodged, extend a credit to him, there is no reason why his liability to any party defrauded by those means should not be the same as if he had made the false representation directly to the party injured. The counsel for the appellant is undoubtedly right in his general proposition that a false representation made to one person cannot give a right of action to another to whom it may be communicated, and who acts in reliance upon its truth. If A casually or from vanity makes a false or exag- gerated statement of his pecuniary means to B, or even if he does so with intent to deceive and defraud B, and B communi- cates the statement to 0, who acts upon it, A cannot be held as for a false representation to C. But if A makes the state- ment to B for the purpose of being communicated to C, or intending that it shall reach and influence him, he can be so held. In Commonwealth v. Call, 21 Pick. 515, the court say on this point, at page 523, that the representation was intended to reach P and operate upon his mind ; that it did reach him, and produced the desired etfect upon him, and that it was immaterial whether it passed through a direct or cir- cuitous channel. In Commonwealth v. Harley, 7 Mete. 462, the prisoner was indicted for obtaining goods hy false pretences from G. B. & Co. The representations were made by one Cameron, in the absence of the prisoner Harley, to a clerk of G. B. & Co., who communicated them to a member of the firm. But there vvas evidence that they were made by Cameron with the approbation and direction of Harley, and these facts were held sufficient to sustain a conviction. ]S'either is it necessary that there should be an intent to defraud any particular person. Should A make a false statement of his affairs to B and then publicly hold out B as his reference, can it be doubted that he would be bound by the communication of his statement by B to any person who might inquire of him in consequence of this reference ? That case differs from the present one only CH. VIII.] DAVID V. PARK. 247 in the fact that here there was no express invitation to the public to call upon Dun, Barlov7 & Co. for information. But the defendant knew that they were a mercantile agency whose business it was to give information as to the standing and means of dealers, and that it was resorted to by merchants to obtain such information. By making a statement of the finan- cial condition of his firm to such an agency he virtually in- structed it what to say if inquired of. Can it make any difference whether he spontaneously went to the agency to furnish the information, or whether he gave it on application ? He must have known that the object of the inquiry was not to satisfy mere curiosity, but to enable the agency to give information upon which persons applying for it might act, in dealing with the defendant's firm. The case is a new one in its facts, but the principles by which it should be governed are well established. * * * * * Judgment affirmed. MEANS OF KNOWLEDGE IMMATERIAL. t David v. Park. (lOSMass. 601. — 1870.) T. L. I/lvermore for the plaintiffs. J. H. Butler for the defendant. Geay, J. Neither of the grounds assigned by the learned judge who presided at the trial, for the ruling, under which a verdict was returned for the defendant in each of these cases, is tenable. 1. The evidence introduced tended to show that the de- fendant falsely and fraudulently stated, as of his own knowl- edge and not as a matter of opinion, in the one case, that he had the interest in the patent right which he undertook to sell, and in the other, that the invention was not covered by any other patent. A distinct statement of such a fact by a seller, knowing it to be false, and with the intent to deceive 248 FRAUD BY AGENT. [bk. ii. the buyer, and on which the buyer acts to his own injury, will sustain an action of deceit, even if the buyer might have discovered the fraud by searching the records of the patent office. {Brown v. Castles, 11 Cush. 348 ; Manning v. Albee, 11 Allen, 520; *S'. C. 14 Allen, 7; Watson v. Atwood, 25 Conn. 313.) ***** Exceptions sustained} FRAUD BY AGENT. Kennedy v. McKay. (43 N. J. L. 288. — 1881.) On rule to show cause why a new trial should not be granted. For the rule, O. Collins. Contra, Scudder & Yredenburgh. Beasley, ^h.