(''^■"X(f/i''"'«?i»»^'ify"fl^''',i" '.A (flnrn^U Slam i>4nnl ICibrar Cornell University Library KD 1949.F84 1898 A compendium of the law of torts, specia 3 1924 022 364 602 Cornell University Library The original of tliis bool< 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/cu31924022364602 A COMPENDIUM OP THE LAW OF TORTS ^^gmaUg KbK^tb fax % Wiu of Mnhmh. BY HUGH^EASEE, M.A., LL.D., OF THE INNEE TEMPLE AND NOBTHEEN CIECUIT, BAEEI8TEE-AT-LAW *, Header in Common Law to tlie Council of Legal Education ; Sometime Lecture:!' to the Incorporated Law Society ; Late Scholar and Law Student of Trinity Mall, Cambridge^ and formerly Mold&r of the Inns of Court Studentship ; Author of^* The Law of Libel in its relation to the Press,'* and " Principles and Practice of the Law of Libel and Slander." FOURTH EDITION. LONDON: SWEET & MAXWELL, Limited, 3, CHANCEEY LANE; REEVES & TURNER, 100, CHANCERY LANE ; 1898. LONDON : PEINTED BY C. P. BOWOBTH, OEBAT NEW STEEBT, BETTEE LANE, E.G. PREFACE TO TKB FOTTETH EDITION. In preparing the present edition for the Press, the book has been thoroughly revised and brought up to date. I have made no alteration in the plan or general arrangement of the work, and have endeavoured, as far as possible, not to increase its size, H. F. 4, Elm Couet, Temple, E.O. October Zrd, 1898. ffl2 EXTEACT FEOM PEEFACE TO THE FIRST EDITION. I AM under an obligation to the Liverpool Board of Legal Studies to supply the students who attended my lectures at Liverpool Vi^ith a printed analysis of the same. The idea that such an analysis might he of some use to other students has induced me to publish this little book, which professes to be nothing more than rough notes of the outlines of my lectures delivered at Liverpool and Newcastle-upon-Tyne in the early part of last year. It was compiled, in the first instance, with the object of assisting those of my own pupils who wished to enter upon the course of study which I indicated to them in my lectures ; and in preparing my notes for the press I had that object solely in view. It is not intended to be used as a cram-book, nor do I imagine that a parrot's knowledge of its contents would enable any student, foolish enough to attempt to acquire it, to cheat a competent examiner into the belief that he had properly studied the Law of Torts; if, indeed, I had thought so, these pages would never have seen the light. I venture to hope, however, that it may prove of service as an inducement to study the Law VI PREFACE TO THE FIRST EDITION. of Torts in the reported cases and in the various works I have referred to, and may prove of value to those who vdsh to be directed to the best sources of information on this branch of the law. I have endeavoured, as far as possible, to acknow- ledge my indebtedness to other writers in the body of my work ; but I wish here to specially acknowledge my sense of indebtedness to Mr. Frederick Pollock's luminous and masterly treatise on the Law of Torts, which no student who wishes to thoroughly master the subject should omit to read and study carefully. H. F. 2, Oloistees, Temple, E.G., March 16th, 1888. CONTENTS. PAGE Preface - - - - « - iii Table op Cases Cited - - - ix Index to Statutes Cited - xxt List oe Abbreviations - - - - - xxvii CHAPTER I. Oe Toet m General - CHAPTER n. Oe Variations in the normal Eight to Sue arising EROM Personal Disability - - 4 CHAPTER m. Oe Variations in the normal Right to Sue arising erom the existence of special circumstances - 8 CHAPTER IV. Of Liability for the Wrongs of Others - - 21 CHAPTBE V. Of Wrongs to Property - - - 42 A. Wrongs to Real Property - - - 42 B. Wrongs to Personal Property - - 69 TUl CONTENTS. OHAPTEE VI. PAGE Of Loss op Service and Sedttctiok - - 80 OHAPTEE VII. Oe Libel and Slandeb - - 84 OHAPTEE. VIII. Of Weongs to the Person - - ISO A. Assault and Battery - ISO B. Ealsb Imprisonment - 133 c. Maliciotts Prosecution - 134 D. Malicious Arrest - 137 OHAPTEE IX. Of Wrongs arising prom Eeaud - 138 OHAPTEE X. Op the Duty to abstain prom Negligence and op certain wider Duties imposed in special Cases 130 OHAPTEE XI. Of certain Miscellaneous Matters - 167 OHAPTEE XII. Of Eemedies and Measure op Damages recoterable 17& OHAPTEE XIII. Op Limitation op Actions - - - IS* .INDEX- - - 189 TABLE OF CASES. — ♦ — PAGE Abbot V. Macfie 158 Abrahams v. Deakiu 24 Abrath r. N. E. Eail. Co 135, 136 Acton V. Blimdell 19, 57 Adamson v. Jarvis - 184 Agar Ellis, In re 14 Aginoourt, Tbe 14 Allen V. Flood 19,81 AUenr. L. &S. W. RaU..Co 25 Alton V. Midland Rail. Co 172 Ames V. Union Rail. Co 173 Anderson v. Gorrie lift Andrews v. Chapman 121 Angus r. ClifiEord 139, 140 Angus V. Dalton 6ft Appleby r. Franklin 167, 168, 169, 17ft Arkwright ». Gell 56 Armory v. Delamiiie 70 Asbby V. White 3 , Atkinson v. Newcastle Waterworks Co 182 Austin V. Culpepper 85,88 Austin V. Dowling 137 Austin «'. a. W. Eaa. Co 171 Avis V. Newman 63 Backhouse v. Bonomi 59, 186 Baddeley v. Earl Granville 36 Baker v. Carrick 120 BaU, Ex parte. In re Shepherd 167, 168, 170 Ballard v. Tpmlinson 58 Bank of British North America v. Strong 109 Barnes v. Dowbng 63 Barnett v. Allen 90 X TABLE OF CASES. FAQB Barrow v. Lewellin 93 Bartlett v. "Wells 5 Barwiok v. English Joint Stock Bank 26, 148 Bayley v. Manchester, Sheffield and Lincolnshire Rail. Co. 24 Beatson «. Skene 114 Beddall v. Maitland 46 Bedford v. McKowl 83 Bennett v. Alcott 82 Bentley v. Vilmont 74 Bernina, The 160 Bird V. Holbrook 49 Bird v. Jones 133 Bishop V. Balkis Consolidated Co 143 Bishop V. Latimer 99 Bishop of Winchester i\ Knight 178 Black V. Christchurch Pinanoe Co 29 Blackburn v. Blackburn 95 Blad's Case (Blad v. Bamfield) 183 Blades v. Higgs 131 Blake v. Midland Eail. Co 176 Blake v. Stevens and others 95 Blyth V. Birmingham Waterworks Co 151, 152 Bolch V. Smith 48 Bonuard v. Ferryman 127 Borlick V. Head 37 Bourke v. Warren 86 Bowen v. HaU 80, 81 Bower v. Peate 29, 61 Bowyer v. Cook 48 Box V. Jubb 163 Boxsius V. Goblet Preres 94, 117 Boydell v. Jones 88 Brenon ii. Ridgway 103 Bridges v. Hawkesworth 70 British Mutual Banking Co. v. Chamwood & Co 22, 149 British South Africa Co. v. Companhia de Mo9ambique . . 183 Bromage v. Prosser 121 Browne v. Croome 117 TABLE OF CASES. XI PAGE Brunsdeu v. Htunphrey 180 Bryant r. Lefevre 67 Burgess v. Gray 28 Bumard v. Haggis 5 Burnett v. Tak ' 126 Buron v. Denman 10 Butler V. Hunter 29 Butterfield i>. Forrester 157 Byrne v. Boadle 155 Campbell v. Spottiswoode 88, 101, 103, 105 Capital and Counties Bank v. Henty 89, 91, 92, 119 Carpue v. L. & B. Eail. Co 155 Carrol f. Bird 115 Carstaira v. Taylor 163 Carter ». Drysdale 38 Cartwright, In re 63 Chamberlain v. Williamson 173 Cbasemore v. Richards 3, 19, 55, 57, 59 Chatterton v. Secretary of State for India in CouncU .... 112 Child V. Hearn 165 Chnrohill v. Gedney 90 ChurchDl v. Hunt 88 City of London Brewery Co. v. Tennant 67 Clark V. Chambers 151 Clark V. Molyneux 106 Clark V. "Woods 12 Clarkson v. Lawson 99 Clay V. Roberts 89 Cleary v. Booth 14 Clement v. Lewis and others 99 Coghlan, Ee 89 Coleman v. West Hartlepool Harbour, &o. Co 128 Coles V. Turner 130 CoUard v. Marshall 127, 128 Consolidated Co. v. Curtis 72 Cook V. Ward 88, 95 Cooper V. WiUomatt 72 XU TABLE OF CASES. PAOB Comfoot V. Fowke 146, 147 Cotton V. Wood 154 Ooulson V. Covilson 127 Coward v. "Wellmgtoii 119 Cox V. Burbidge 16S Cox «. Cooper 89 Cox V. Feeney 105 Cox 4'. Lee 88 Cripps V. Judge 34 Cullen V. Thompson's Trustees 21 Currie v. Walter 121 Dames v. Hartley 91 Dale V. Wood 2» Dalton V. Angus 60 Daltou V. S. E. Bail. Co 176 Darley Main CoUiery Co. v. Mitohell 187 DaTey v. L. & S. W. EaU. Co 157 Dayies v. Daviea 63 Davies v. Mann 1 57 Davies v. Snead 1 14 Davies -o. Williama 82 Davis & Sons v. Shepstone 104 Davis V. Eeeves 117 DawHns v. Antrobus 14 Dawkins v. Lord Patilet 112 Dawkins v. Lord Rokeby 11,112 Davpkins v. Prince Edward of Saxe- Weimar 11 Degg V. Midland Eail. Co 32 Delacroix v. Thevenot 93 Denton v. G. N. Eail. Co 149, 170 Derry v. Peek 138, 139, 142 Dibdin v. Swan & Bostock 105 Dickinson i). N. E. EaU. Co 175 Dickson V. Eeuter's Telegraph Co , 141 Dixon V. Bell 166 Dixon V. Metropolitan Board of Works 163 Dixon V. Smith 118 TABLE OF CASES. XUl PAGE Dobell ». Stevens ' 145 DonogKue v. Hayes 95 Donovan v. Lairig, &e. Syndicate 27 Doughty V. Firbank 35 Duck V. Mayeii. ..... .'. . .'. ......' 183 DuokwoftK V. JdKnson ,' 176 Dudden i\ Guardians of Cliitton "Union 55 Duke of Brunswick V. King of Hainover 7 Dunoombe v. Daniell' 121 Dunne v. Anderson 105 Duplany v. Davis ' 105 Eastwood V. Holmes 86 Eaton V. Johns 88 Ecclesiastical Commissioners v. Kino 69 Edwards v. L. & N. W. Rail. Co 25 Edwards v. Midland Rail. Co , 7, 136 Edwick V. Hawkes 46 Elliott, Ex parte 170 Ellis V. Sheffield Gas Consumers' Co 28 Embry v. Owen 65 Em mens v. Pottle 97 Engleheart v. Farrant & Co 25 Eyre v. Garliek 86 Farrant v. Barnes 166 Fernandez, Ex parte 11 Filbum V. People's Palace and Aquarium Co., Limited . . 164 FiUiter v. Phippard 165 Finlay v. Chimey 173 Fletcher v. Rylands 162 FHght V. Thomas 68 Forbes v. King 89 Fordham v. L. B. & S. 0. Rail. Co 156 Foulkes V. Met. Dist. Rail. Co 171, 172 Fowler and Wife v. Homer 117 Fowlers v. Walker 69 Franklin v. S.E. Rail. Co 176 Fraser v. Berkeley 105 XIV TABLE OF CASES. FAOE Gardner v. Slade 115 Grantret v. Egerton 51 Greddis v. Proprietors of Bann Reservoir 15 Gelenv. Hall ■ 110 George and Richard, The 175 George v. Skivington 166 Gibts V. Guild 46, 186 Gibson v. Wells 63 Glaiser v. Rolls 142 Gloucester Grammar School Case 3, 19 Gofij). G.N. Rail. Co. 24 Gorris v. Scott 182 Grainger v. Hill 133 Grand Junction Canal Co. v. Shugar 69 Greatrex v. Hayward 66 Green v. Chapman 105 Greenwood v. Homsey 69 Griffiths V. Dudley (Lord) 38 GwinneU v. Earner 66, 66 Hadley v. Baxendale , 180 Halley,. The 182 Halsey v. Brotherhood . 126 Hammack .«.. White 156 Hammersmith Rail. Co. v. Brand 15, 16 Hardaker v. Idle District ConnoU 29 Hargreave v. Spink & Son 74 Harnett v. Maitland 63 Harris v. De Pinna , 67 Harrison ». Southwark and Vauxhall Water Co 65 Harvey v. Young 140 Hayman v. Governors of Rugby School 14 Heaven v. Pender 62 Hebditoh i-. Mcllwaine 113, 114 Hedley ». Barlow 104 Heske v. Samuelson 34 Hicks V. Faulkner 135 Hoars v. SUverlock 89 TABLE OF CASES. XV PAGE Hodgson V. Scarlett 109 Hole V. Sittingbourne Rail. Co 29 Holker t>. Porrit 56 Hollins V. Fowler 71 72 Holmes v. Mather 152 Horsfall v. Thomas I44 Houlden v. Smith H^ HO Houldsworth v. City of Q-lasgow Bank 26 Hughes V. Percival 29 61 Hume i>. Marshall 116 Hume r. Oldacre 183 Humphreys v. StUwell 120 Humphries v. Brogden 59 Hunt f. G-. N. Eail. Co 116, 120 Huntley v. Ward 95 Hydraulic Engineering Co. v. McHaflSe 180 Hott V. Wilkes . . 48 Indermaur v. Dames 51 Ingram v. Lawson 88 James v. Redditch, , 87 Jennings v. Rundall i Joel V, Mprrisop ,...., 26 Johnson v. Diprose , 70 Jones V. Chappell , 61 Jones V. Festiniog Rajl. Co 166 Jones V, i^'oley 46 Jones .V. Mayor of Liverpool 27 Jones J!.. Powell 66 Kearney v. L. B. & S. C. Rail. Co 155 Keates v. Cadogan (Lord) 141 Keeble w. Hickeringill 19 Kelly, «;. Metropolitan Rail. Co 172 Kelly V. Sherlock 105 KeUy V. Tinling 105 Kent V. Courage & Co 7, 136 Kimber v. The Press Association 122 XVl TABLE OF CASES. FAOE King of Spain «;. Hullett.. . .; 7 " 'Eirhy ».. Simpson 110 Koenig v. .Eitchie 119 " Ijane v. Cbx . , '. 53, 152 Langridge v. Tieyj, 144, 166 Laughton v. Bishop of Sodor and Man 119 Lawrence v. Ne-wberry 86 Leddell v. MoDougal 142 Le Fanu and others v. Maloolmson 87 Lefroy v. Bumside 103 Le Lievre v. Gould 152 Lemaitre v. DaTis 60 Lempriere v. Lange 6 Levy V. Milne 86 Lewis V. Levy 122, 123 Lewis V. Walter 100 Lilley v. Roney 109 Limpns v. London General Omnibus Co 22, 23, 25 Lindsay Petroleum Co. i/. Hurd 140 Liverpool Adelphi Loan Assoc, v. Fairhurst and Wife. ... 6 L. B. & S. 0. RaU. Co. v. Truman 15, 17 London & N. W. RaU. Co. v. Bradley 15 Lord Beauchamp v. Sir R. Croft 109 Low V. Bouverie 142 Lowe V. Fox 185 Ludgater v. Love 147 Lumley )). Gye 80, 81 Lyde v. Barnard 143 Lygo V. Newbold 158 Lynch v. Nurdin 158 Lyne, Ex parte 134 Machado v. Fontes 183 Mackett v. Commissioners of Heme Bay 128 Macleod v. Wakley 102 Magdalena Steam Nav. Co. i>. Martin 7 Malachy v. Soper 87, 129 Mangan ff. Atterton 159 TABLE or CASES. XVU PAQE Marsh v. Joseph , 22 Marshall v. York, Newcastle, &c. Eail. Co 171, 172, 173 Mary Moxham (The) 183 Masper v. Brown , , . , 132 Masters v. Burgess 116 Maund v. Monmouthshire Canal Co 7 Maunder v. Veim 82 May V. Burdett 164 Mayor of Bradford v. Pickles 19 Mayor of London v. Cox 12 Mayor, &o. of Manchester v. Williams 98 Mellors v. Shaw 31 Memhery v. Gr. W. Kail. Co 36 Merest v. Harvey 179 Merivale v. Carson 101, 102, 103, 105 Merryweather v. Nixan 184 Metropolitan Asylum District Board v. Hi11 17 Metropolitan Rail. Co. v. Jackson 154 Meux V. Cobley 61 Menx V. a. E. RaU. Co 172 Midland Ins. Co. v. Smith 166, 167, 168 MiHssioh v. Lloyds 121 Miller v. David 96 Miller v. Hancock 53 Miller v. Race 73 Mills V. Armstrong 160 Mogul Steamship Co. v. M'Gregor, Gow & Co 19, 126 Monson v. Tusaauds, Limited 85, 127 Morgan v. Lingen < 88 Morrison v. Belcher 105 Moyle V. Jenkins , 38 M'Pherson i). Daniels 97 Munday v. Thames Lronworks Co 38 Munster v. Lamb ,...., 109 Murdoch v. Eunduklian , 115 Nelson v. Liverpool Brewery Co. , ■ ■ . . 66 Neuwith v. Over-Daiwen Society , 152 F. b XVIU TABLE OF CASES. PAOE Nevill V. Kne Art and General Insurance Co 89 Nichols V. Marsland 162 , Nitro -Phosphate Co. v. London and St. Kat. Docks Co. . . 163 Noden v. Johnson 131 Netting Hill, The 180 Nugent V. Smith 162 O'Brien v. Clement 86 O'NeiU V. Everest 63 Oabomv. GiUett 168, 173 Oshome v. Jackson 34 Palmer v. Fletcher 67 Pankhurst v. Hamilton 105 Fappa V. Hose 12 Paris V. Levy 110 Pasley v. Freeman 2, 143, 144 Pattison v. Jones 115 Peek V. Derry 138, 139, 142 Peek V. Gurney 142, 144, 178 Perry v. Fitzhowe 64 Ferryman v. Lister 136 PhiUips V. Homfray 178 Pickering v. Dowson 140 Pittard v. Oliver 117, 118 PoIhiU V. Walter 142 Port Glasgow SaUoloth Co. v. Caledonian Rail. Co 16 Poulton V. L. & S. W. Kail. Co 23 Powell V. FaU 166 Powys V. Elagrave 63 Presland v. Bingham 69 Pretty v. Bickmore 65, 66 Priestley v. Fowler 31, 32 Pullmans!. Hill & Co 93, 94, 112, 113, 114 Purcell V. Sowler 105 TABLE OF CASES. XIX PAGE Quarman v. Burnett 27 Quartz Hill, &e. Co. v. BeaU 120, 126 EamsHll v. Edwards 184 EandaU v. Newson , 154 Rapley v. London Tramways Co 17 EatcHfEe v. Evans 129 Rayner v. Mitoliell 26 Eaysou v. South. London Tramways Co 7, 136 Eeadhead v. Midland Eail. Co 153 Ee CogUan 89 Ecddie v. Scoolt 83 Redgrave v. Hurd 145 Eeeoe v. Taylor. 20 Eeed v. Nutt ,132 Eeedie v. L. & N. W. Eail. Co 27 Eeese Eiver Silver Mining Co. v. Smith 141 Reg. V. Coney 20 Reg. V. Labouchere 100 Reg. ». Morris 132 Eeg. V. Train 66 Eeg. V. Veley 119 Eepuhlic of Peru v. WegueUn 7 Eex V. Abingdon 107 Eex v. Clerk 86 Eex V. Oreevey 107 Rex V. Pease 15 Rex V. Skinner 110 Rex V. White and another 104 Richardson v. Metropolitan Rail. Co 156 Rigby V. Bennett 60 Ritchie v. Sexton 90 River Wear Commissioners v. Adamson 18 Roach V. Grarvan 86 Roberts v. Brown 104 Roberts v. Taylor 20 Robinson v. Jones • i . 94 S2 XX TABLE OF CASES. PAQB Bobshaw v. Smith 11^ Rogers v. Clifton 115 Eoope V. D' Avigdor 109 Eoyal Aquarium, &o. Co. v. Parkinson 109, 111 Buddiman v. Smith ^0 Kumney v. Walter 121 Russell and another v. Webster 92, 103 Eylands v. Fleloher 161, 162 Sadler v. Henlock 27 Sadler v. South Staffordshire, &c. Co 16,166 St. Helens Smelting Co. w. Tipping 63, 66 Salamon v. Knight 126 Sands V. Child and others 10 Sandwich v. G. N. Rail. Co 54 Saxby v. Easterbrook 126 Scarl V. Dixon 116 Schneider v. Heath 140 Scott 1). London Dock Co 155 Scott V. Pape 69 Scott V. Shepherd 20, 150 Seaman v. NetheroHft 109 Secretary of State in Council of India v. Kamachee Boye Sahaba 9 Seroka v. Kattenburg , 6 Sharp V. Powell 150 Shepherd ». Whitaker" 95 Singleton v. Eastern Counties Rail. Co 159 Sir John Bourne's Case 87 Six Carpenters' Case, The (Vaux v. Newman) 45 Smith V. Baker 36 Smith V. Chadwick , 144 Smith V. Jeffreys 90 Smith «). L. & S. W. Rail. Co 16 Smith V. London and St. Katherine's Docks Co 52, 53 Smith V. Marrable . . .' 141 Smith V. MUles 43 TABLE OF CASES. XXI FAOE Smitt V. South ■Eastern Rail. Co 157 Smitli V. Thackerah 59 Solomon v. Vintners' Co 61 Soltau V. De Held 64 Somerville v. Hawldns 115 South Hetton Coal Co. v. N. E. News Association, Limited 98 South StafEordshire Water Co. u. Sharman 70 Southoote V. Stanley 51 Speight V. OliTiera 83 Spencer v. Amerton' 120 Spill w.Manle 120 Stace V. Griffith 116, 120 Stanley v. Powell 152 Stevens v. Midland Counties EaU. Co 7, 135 Stevens v. Sampson 122 Stevens v. Woodward 26 Stevenson v. Watson 12 Steward v. G-romett 136 Stockdale v. Hansard 108 Stone V. Hyde 38 Storey v. Ashton , 26 Storey v. Challands 116 Stuart V. BeU 106, 113, lU Sutcliffe V. Booth 56 Swire v. Francis 148 Tahart v. Tipper 88 TapUng V. Jones 69 Tarpley v. Blahey 86 Tarry v. Ashton 65 Taylor v. Best 7 Taylor v. Manchester, Sheffield & Lincolnshire EaU. Co. . . 172 Temperton v. Eussell and others 81 Tenant v. Goldwin 161 Thomas v. Quartermaine 36 Thomas v. Williams 127 Thomas v. Winchester. 166 J3 XXU TABLE OF CASES. PAGE Thompson v. Sbackell • • . 105 Thorley v. Lord Kerry 88 Thome v.. Heard 186 Thorogood v. Bryan 169, 160 Tillett V. "Ward 164 Toddc.FUglit 66 Todd*!. Hawkins - 120 Trotman v. Dunn 110 Truman v. L. B. & S. C. EaU. Co 17 Tucker v. Newman 43 Tufii>.Warman 157 TJdeU V. Atherton. 148 UsiUjJ.Halea 122 Vaughan v. TafE Vale Rail. Co 16 Vaux V. Newman (Six Carpenters' Case) 46 Vicars 41. Wilcooks 81 ViUers v. Monsley 88, 96 Waite V. N. E. Rail. Co 160 Wakelini;. L. & S.' W. RaU. Co 155, 157 Wakley ». Cooke and Healy 99 Waller v. Xioch 115 Ward v. Hobbs 140 Warren v. Warren 117, 121 Wason V, Walter ..,,,..,... 105, 123 Watkins v. HaU. 96, 97 Webb 1). Beavan 96 Webb/!;. Bird 67 WeUock 1). Constantine 169 Wells V. Abrahams 169 Wenman v. Ash 94, 95 Wennhak v. Morgan 94 Western Bank of Scotland v. Addie 149 Western Counties Manure Co. v. Lawes Chemical Manure Co 129 TABLE OF CASES. XSXil PAGE Whatman v. Pearson 25 WHte V. Mellin 129 White V. Spettigue 168 Whitehead v. Parks 58 Whiteley i). Adams 116 Whitfield V. S. E. Eail. Co 94 Williamson v. !Freer 94 WiUmett v. Harmer and another 100 Wilson J). Knoh-Hatton 141 Wileon v. Merry 32 Wilson V. Tumman 21 Winchester (Bishop of) v. Kmght 177 Wisdom V. Brown 105 Wood V. Wand 55, 56 Woodgate v. Eidout 104 Woodhouse v. Walker 63 Wright V. L. & N. W. Eail. Co 33 Wright V. Pearson 165 Wright V. Woodgate 117 Yarborough v. Bank of England 6 Yarmouth v. France 36 Yates v. Jack 68 INDEX TO STATUTES CITED. — ♦ — PACE 13 Edw. 1 (St. West. 2), u. 31 11 4Edw. 3,0.7 174 25 Edw. 3, 0. 5 174 5 Eic. 2, c. 18, B. 1 (1381) 46 2 & 3 P. & M. 0. 7 75 31 EUz. 0. 12 75 21 Jac. 1, 0. 16 (Act for Limitation of Actions, 1623) .... 185 H. 3 45 29 Car. 2, c. 3 (Statute of Frauds), s. 4 143 31 Car. 2, c. 2, s. 9 U 1 Will. & M. St. 2, 0. 2 (Bill of Eights) 107 4&5Anne, 0. 3 185 11 Geo. 2, c. 19, s. 19 47 24 Geo. 2, u. 44, s. 6 12 14 Geo. 3, c. 78 (The Building Act), s. 86 105 5 Geo. 4, c. 83 (Vagrancy Act) 134 7 & 8 Geo. 4, 0. 18 49 9 Geo. 4, c. 14 (Lord Tenterden's Act) = 143 2 & 3 Will. 4, 0. 71 (Prescription Act, 1832), s. 2 61, 67 ss. 3, 4 . . . . 68 3 & 4 Will. 4, 0. 27, s. 2 45 s. 26 45 C.42, S.2 174, 178 5 & 6 Will. 4, c. 50 (General Highway Act), s. 70 49 3 & 4 Vict. .;. 9 108 5 & 6 Vict. c. 45, =. 3 78 6 & 7 Vict. c. 96 (Lord Campbell's Lihel Act), s. 2 125 8 & 9 Vict. u. 75, s. 2 126 9 & 10 Vict. c. 93 (Lord Campbell's Act) 28, 37, 158 s.l 174 «.2 175 XXVI INDEX TO STATUTES CITED. PASE 17 & 18 Viot. 0. 125 (Common Law Procedure Act, 1854).. 77 19 & 20 Vict. e. 97 185 2i & 25 Vict. c. 95, s. 1 49 c. 96, s. 100 74 V. 100, B. 31 49 BS. 42—45 132 27 & 28 Vict. 0. 95 37, 175 28 & 29 Viot. 0. 60 165 32 & 33 Vict. c. 70 (Contagious Diseases (Animals) Act, 1869) 182 33 & 34 Vict. 0. 23, ss. 8, 30 4 36 & 37 Vict. u. 66 (Judicature Act, 1873) 45 a. 25, sub-s. 3 62 B. 25, sub-s. 9 169 s.'29 11 37 & 38 Viot. 0. 67 (Real Property Limitation Act, 1874) s. 1 . . 45 38 & 39 Vict. c. 90 (Employers and Workmen Act, 1875) . . 33 43 & 44 Vict. 0. 42 (Employers' Liability Act, 1880) . .33—39, 176 45&46Vict.c.61,ss. 24, 81 73 c. 75 (Married Women'sProperty Act, 1882). .5, 185 ss. 1 (2), 12 6 ss. 13—15 6 60 & 51 Vict. u. 19 (Quarries Fencing Act, 1887), s. 3 49 51 & 62 Vict. u. 43 (County Courts Act, 1888), ss. 135, 136. 77 c. 64 (Lawof LibelAmendment Act, 1888), s. 3. Ill B. 4 124 53 & 64 Viot. c. 64 (Directors' LiabiUty Act, 1890), s. 3 . . 145, 146 54 & 55 Vict. 0. 51 (Slander of Women Act, 1891) 96 56 & 57 Vict. 0. 32 (Barbed Wire Act, 1893) 50 c. 61 (Public AuthoritiesProteotionAot, 1893) 12, 13, 186 c. 71, ss. 22, 23, 24, 26 (Sale of Goods Act, 1893) 73—76 57 & 58 Vict c. 60 (Merchant Shipping Act, 1894), s. 419, sub-8. 4 159 60 & 61 Vict. c. 37 (Workmen's Compensation Act, 1897) 30, 31, 39—41, 177 LIST OF ABBREVIATIONS. A. & E Adolphus and EUis. Ad. & Eco Admiralty audEoolesiaatioal Cases (L.B.) App. Oas Appeal Cases (L. E.). B. & A Bamewall and Alderson. B. & Ad Bamewall and Adolplius. B. &C. Bamewall and CressweU. B. &P Bosanquet and PuUer. B. & S Best and Smith. Bam Bamardiston. Bing Bingham. Bing. N. C Bingham, New Cases. Bur Burrow. 0. A Court of Appeal. C. B Common Bench Reports. C. B. N. S Common Bench, New Series. C. C. R Court of Crown Cases Reserved (L. R.). C. P Common Pleas (L. R. and L. J.). 0. P. D Common Pleas Division (L. B.). C. & P Carrington and Payne. Camp Campbell. Ch Chancery (L. R. and L. J.). (1891), (1892), 1,2, &o. Ch (1891), (1892), Law Reports, 1, 2, &c., Chancery Division. Ch. D. or Ch. Div. . .Chancery Division (L. R.). , Coke's Rep Coke's Reports. Cro. Eliz Croke's Reports, temp. Elizabeth. XXVUl LIST OF ABhEEVIATlONS. De G. M. & Gr De Gex, Maonaghten and Gordon's Re- ports. Dowl. N. S Bowling, New Series. E. &B Ellis and Blackburn. E. B. & E Ellis, Blackburn and Ellis. E. & E EUis and Ellis. Eq Equity (L. K.). Esp Espinasse. Ex Exchequer Reports, Exchequer (L. R. and L. J.). Ex. D. or Ex. Div. . .Exchequer Division (L. R.). Ex. Ch., 0. B. N. S. . .Exchequer Chamber, Common Bench Reports, New Series. Ex. Rep Exchequer Reports. E. &r Foster and Einlason. H. & C Hurlstone and Coltman. H. & N Hurlstone and Norman. H. L House of Lords (L. R.). H. L. C House of Lords Cases, by Clark and Einnelly — continued by Clark. Hagg Haggard. Hob Hobart's Reports. I. R. C. L Wsh Reports, Common Law. J. P Justice of the Peace. Jur. N. S. Jurist, New Series. L. J Law Journal. L. J. N. C Law Journal, New Cases. L. R Law Reports. L. R. It Law Reports, Irish. L. R. Ch. App Law Reports, Chancery Appeals. L. R. Sc. App Law Reports, Scotch Appeals. L. R. Sc. & D Law Reports, Scotch and Divorce Ap- LIST OF ABBREVIATIONS. XXIX Ld. Eaym Ld. Raymond's Reports. IJofft LofEt's Reports. M. & G Mannmg and Granger. M. P. C. C Moore's Privy Council Cases. M. & S Mauls and Selwyn. M. & "W Meeson and Welsby. Mod Modem Reports. Moo. & M Moody and Malkin's Reports. Moo. & R Moody and Robinson's Reports. N. & M Neville and Manning's Reports. N. T New York. P- C Privy CouncU (L. R. and L. J.). P. W Peere Williams. Palm Palmer. Q. B Queen's Bench Reports, Queen's Bench (L. R. andL. J.). (1891), (1892), &c., 1, 2, &c., Q. B (1891), (1892), &c., 1,2, &o., Law Reports, Queen's Bench Division. Q. B. D Queen'sBenchDivision(L.R. andL. J.). R. & M Ryan and Moody. K. R Revised Reports. Rep Coke's Reports. Salk Salkeld. Sid SiderBn. Sim. N. S Simons, New Series. Sm. L. C Smith's Leading Cases. Stark. Starkie. Swanst. • Swanston. T. K TermReports. Taimt. Taunton. XXX LIST OF ABBEEVIATIONS* Ves Vesey. W. N Weekly Notes. W. R Weekly Eeporter. ■ Wm. B WiUiam Blaokstone. T. B Tear Books. Telv yelverton. to 0f ferfs> CHAPTER I. OF TORT IN GENERAL. To define a tort is well known to be difficult and unsatisfactory. The best summary of the elements of which it is composed is that given by Sir Frederick Pollock (Law of Torts, 5th ed., pp. 19, 20), and to this the reader is referred. Certain distinguishing marks, we may, however, notice. On the one hand, a tort is to be distinguished from crime : on the other, from breach of contract. It differs from crime in respect of three considera- tions : — (1) As regards the conseq[uences of the act or omis- sion. — A crime is regarded more as an injury to the whole community, considered in its social aggregate capacity; while a tort is regarded rather as an injtiry to a private individual, its consequences being deemed less deleterious to the commimity at large. (2) As regards the nature of the redress or remedy. — In tort, the wrongdoer has to compensate the injured party, while in crime he is punished by the state. F. 1 2 LAW OF TORTS. (3) As regards procedure. — In tort, the action is brought by the injured party ; in crime, proceedings are conducted in the name of the sovereign. All the three elements of difference go to make up the distinction. Blackstone (a), the Institutes of Justinian, and Professor HoUand (b), rely only on the first ; Austin (c) on the third. It differs from breach of contract, in that a tort is an infringement of a general right or a right in rem — i.e., a right available against the world at large ; whereas breach of contract is an infringement of a right in personam — i.e., a right available against a definite person or persons. It is also to be distinguished from breach of certain personal -relations, such, for example, as exist between a trustee and his c^tui que trust, a husband and his wife, a shipowner and his salvors (d). The newness of a tort is no objection to an action if it come within any principle upon which the courts act ; but the court will grant no relief if it embraces £ome entirely new principle (e). (a) Stephen's Commentaries, 12th ed. vol. iv. p. 3. (b) Holland's Jurisprudence, 8th ed. pp. 333, 334. if) Austin's Jurisprudence, 5th ed. vol. i. pp. 404, 40S. {cC) For the general theory determining UabUity in tort, the student is referred to that most masterly of modem law books, " The Common Law," by Mr. Justice 0. W. Holmes, Lectures III. and rV. ; more particularly pp. 161 — 163. (e) Per Ashurst, J., in Fasley v. Freeman (1789), 3 T. E. 51 ; 1 E. E. 634. OF TORT IN GENERAL. 3 Where there is injuria sine damno, i.e., the in- fringement of a legal right without any actual loss or damage, the person whose right is infringed has a cause of action. Thus in Ashby y. White (/), the defendant, a returning officer, wrongfully refused to register a duly tendered vote of the plaintifi, a legally qualified voter. The candidate for whom the vote was tendered was elected, and no loss was suffered hy the rejection of the vote ; nevertheless, it was held that an action lay {g). Where there is damnum sine injuria, i.e., actual and suhstantial loss without infringement of any legal right, no action lies : e.g., A. and B. are rival schoolmasters ; A. sets up a rival school next door to B.'s, and boys from B.'s school flock to A.'s. B. has no right of action against A., for no legal right has been infringed (A). (/) 1 Sm. L. C. lOth ed. 231. {g) It is -wortli noticing, however, ttat Holt, C. J., expressly negatived the doctrine of injuria sine damno. See The Judgments delivered by Chief Justice Holt, S;c., published by Messrs. Saunders & Benning, London, 1837. [h] Gloucester Grammar School case (1410-11), in Tear Book of 11 Henry i, 47, pi. 21 ; Chasemore r. Siehards (1859), 7 H. L. C. 349 ; and see infra, pp. 18 — 19, and p. 50. 1(2) LAW OT TOE.TS. CHAPTER II. OF VAEIATIONS IN THE NORMAL EIGHT TO SUE ARISING FROM PERSONAL DISABILITY. Certain persons are not capable of suing or liable to be sued in tort owing to personal disability. Categories of such persons. A convict whose sentence is in force and unexpired, and who is not "lawfully at large under any licence," cannot sue " for the recovery of any property, debt, or damage whatsoever " (33 & 34 Yict. c. 23, ss. 8, 30). Nor can an alien enemy. An infant may be sued for a tort, but not when it would have the effect of making him liable on a contract which he could not otherwise be liable upon; but the doctrine does not extend to protect an infant from the consequences of a wrong which has been induced by, and has arisen out of, a contract, but which is independent of the contract, in the sense of not being an act of the kind contemplated by it. In Jennings v. Rundall{a), the defendant, who was an infant, hired a mare for riding, and injured it by over-riding. Held, defendant's infancy was a good defence, the action being founded on contract. In (a) (1799), 8 T. R. 335 ; 4 R. R. 680. PERSONAL DISABILITY. Burnard v. Eaggis ih), there was a similar contract, but defendant was expressly told that the mare was unfit for leaping. The mare was put at a fence, and in attempting to take it fell upon a stake, and was so injured that she died. Held, that the infant had- committed an actionable wrong, and was therefore liable irrespective of the contract. Further, an infant is not allowed to take advantage of Ms own fraud, and will be liable in equity to make restitution, where that is possible, for any advantage he has thereby gained (c). Married women at common laic were not liable upon contracts, and, consequently, the same rule applied to the contract of a married woman as to that of an infant — that it could not be indirectly enforced by ' framing the pleadings in tort. In all real cases of tort, however, a married woman is as liable as anybody else ; but inasmuch as in the eye of the law she had no pro- perty of her own with which she could pay damages, her husband had to be sued jointly with her (d). Under the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), the wife is liable for her ante- nuptial torts, and may be sued for them, and sums (J) (1863), 14 C. B. N. S. 45. (c) BartlettY. Wells (1862), 31 L. J. Q. B. 57 ; Zempriere v. Zmge <1879), 12 Ch. D. 675. {d) Liverpool Adelphi Loan Association v. Fairhurst and Wife <1854), 9 Ex. Eep. 422. 6 LAW OF TORTS. recovered against her are to be paid out of her sepa- rate property (e) : the husband is also liable to the extent of the property he has obtained through his ■wife (/), and may be sued jointly with her or alone [g). For torts committed by or against a wife during marriage she is sued or sues just as a feme sole, and sums recovered against her are to be paid out of her separate estate, and sums she recovers are part of her separate estate (h). The husband may or may not be joined with her in these actions, since the case of Seroka v. Kattenburg (i) has decided that the husband's old common law liability for his Avife's torts committed during marriage is not interfered with by the Act. As to torts committed against the wife by her husband, the wife may sue her husband for the pro- tection and security of her own separate property; but further than that, no husband or wife shall be entitled to sue the other in tort (k). Por a long while difficulties, due rather to con- siderations of procedure than to any fancied obstacle arising from a corporation's artificial personality, were felt in admitting that a corporation could be sued. In 1812 it was held, in Yarborough v. Bank {e) 45 & 46 Vict. o. 75, s. 13. (h) Ibid. a. 1, sub-s." 2. •■ (/) Ibid. s. 14. (i) (1886), 17 Q. B. D. 177. Ig) Ibid. s. 15. (A) 45 & 46 Vict. c. 75, s. 12. PERSONAL DISABILITY. / of England (I), that trover lay against a corporation ; and in 1842, in Maiind v. Monmouthshire Canal Co. (m), that trespass also lay. It was formerly doubted whether a corporation, being incapable in its corporate character of a malicious intention, could be liable to an action for malicious prosecution (w) ; but the better opinion at the present day is that it can (o). It has now become established that a cor- poration is liable for torts committed by its servants and agents, provided (1) the thing done is within the purpose of the corporation, and (2) done so that it would be actionable if done by an individual (p). Foreign sovereigns and ambassadors resident in this country can sue in an English court {q), but cannot be sued unless, indeed, they waive their privilege by voluntary submission to the jurisdiction or otherwise (r). {1} 16 East, 6 ; 14 E. E. 272. (m) 4 M. & G. 452. («) Stevens v. Midland Counties Sy. Co. (1854), 10 Ex. 352. (o) Micards v. Midland Ey. Co. (1880), 6 Q. B. D. 287 ; Kent v. Courage (1891), 55 J. P. 264; Rayson v. South London Tramways Co., (1893) 2 Q. B. 304. See also Clerk and Lindsell on Torts, 2nd ed. p. 50, note {g). (p) See pp. 22 — 26, infra, and tte cases there cited. (q) King of Spain v. Eullett (1828), 1 Dow & CI. 169; Eepuilic ofFeru v. Weguelin (1872), L. K. 7 C. P. 352 ; (1875), 20, Eq. 140 ; Magdalena Steam Navigation Co. v. Martin (1859), 28 L. J. Q. B. 310. (r) Duhe of Brunswick v. King of Eanover (1844), 6 Beav. 1, 51 ; Taylor v. Best (1854), 23 L. J. C. P. 89, 93. -. LAW OF TORTS. OHAPTEE III. OF VARIATIONS IN THE NORMAL RIGHT TO SUE ARISING FROM THE EXISTENCE OF SPECIAL CIRCUMSTANCES. Ceetain acts ■would fall within the sphere of tort, rendering the doer liable to an action for damages, were it not for their being of an altogether excep- tional nature («) . Categories of such exceptions (5). [Definition. — Actor : a person who does an act which but for special matter of excuse or justification would be actionable.] I. Privilege of actor. 1. Public. a. Acts of state. h. Judicial acts, i. e., acts of judicial officers in the course of their duty, c. Executive acts, i. e., acts of executive officers in the course of their duty. (a) It is due to Sir Frederick Pollock to state here that I am much indebted to him in respect to this chapter. For a full and exhaustive discussion of its subject-matter the reader is referred to Book I. Chap. IV. of that learned author's treatise on the Law of Torts. (J) The threefold division given in the text does not profess to be anything more than a rough classification. SPECIAL CIKCUMSTANCES. 9 2. Private. a. Quasi-] udioial acts, e.g., of committee of club. h. Disciplinary powers of private persons, c. Powers conferred by law. II. Equal rights. 1. Inevitable accident. 2. Exercise of common rights, e.g., trade com- petition. III. SuflFerer disentitled. 1. Leave and licence. 2. Self-defence. 3. Acts of necessity. I. Privilege of actor. 1. Public. a. An act of state is either — (i.) An act done by a foreign priace or ruler or his representative, e.g., the am- bassador of some other sovereign state, in his political capacity (c) ; or (ii.) An act done by a representative of the Crown (previously sanctioned or subsequently ratified by the Crown), (c) Secretary of State in Council of India v. Kamaeliee Boye Sahaha <1859), 13 M. P. C. C. 22. 10 LAW OF TORTS. affecting the person or property of some one not a British subject. In Buron v. Denman [d), plaintiff sued defendant, a naval captain, for burning plaintiff's barracoons and releasing slaves in them. It was held that defendant was not liable, having acted in the capa- city of an officer of the Crown, and the Crown having accepted his act as its own. There is no liability for acts of this kind. As between a sovereign and his subjects, there is no such thing as an act of state ; i.e., to plead the sovereign's command is no excuse, unless such command is lawful in itself, " for the warrant of no man, not even of the king himself, can excuse the doing of an illegal act" (e). It is for the court to determine whether the com- mand is, or is not, lawful. b. Judicial acts. — Judges of superior courts, — i.e., the House of Lords, the Judicial Committee of the Privy Council, the Court of Appeal, the High Court of Justice and any Divisional Court there- (d) (1859), 2 Ex. Rep. 167. .,' • {e) Per cur. in Sands t. Child and othirs (1693), 3 Lev. 352. SPECIAL CIRCUMSTANCES. 11 of (/), Courts of Nisi Prius and As- size {g), — are not liable for acts done in their judicial capacity, or for errors of judgment ; but — (i.) By 31 Car. 2, c. 2, s. 9, a judge in Tacation who refuses to grant a writ of habeas corpus is liable ; (ii.) By 13 Edw. 1 (st. West. 2), c. 31, a judge who refuses to seal a bill of exceptions is liable (Ji). The same immunity applies to judges of inferior courts, but in a superior court it is presumed that everything is within its jurisdiction, and plaintiff must prove the contrary. In inferior courts, there is no such presumption, and the judge must prove that the act complained of is within his jurisdiction («). Members of naval and military courts- martial are not liable for acts done in their capacity as such {j). An arbitrator, as being in loco judicis, if acting honestly is not liable for errors (/) Judicature Act, 1873, s. 29. ig) Ex parte Fernandez (1861), 30 L. J. C. P. 321. (A) This practice is now obsolete, (i) BouUen v. Smith (1850), 14 Q. B. 841. (f) Dawkins t. Lord Rokeby (1876), L. R. 7 H. L. 744 ; Hawkins V. Frince Edward of Saxe-Tfeimar (1876), 1 Q. B. D. 499. 12 LAW OF TORTS. in judgment (/c) ; but he is, of course, liable for fraud or collusion [1). c. Executive acts. — No action lies against a public ofiBcer for the regular enforcement of any sentence or process of law within the jurisdiction of the court under whose authority he acts, but he must act " in a manner in itself reasonable, and in execu- tion of an apparently regular warrant or order, which, on the face of it, he is bound to obey " (?m) . Where, however, the court issuing process has no jurisdiction, officers are liable at common law (h) ; but a constable or officer acting under a jus- tice's warrant is protected by 24 Greo. 2, 0. 44, s. 6, if he produce a copy of such warrant within six days of demand. By the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), every action brought against any person for any act in pursuance or execution or intended execution of any statutory or public duty or authority, must be brought [k) Stevenson v. Watson (architect nominated to certify what was due to contractor) (1879), 4 C. P. D. 148. [P, Ibid. See also Pappa v. Base (1872), L. K. 7 0. P. 525. (j») Pollock, 5th ed. p. 112. See also Mayor of London v. Cox (1867), 2 H. L. at p. 269. (») Clark T. TToods (1848), 2 Ex. 395. SPECIAL CIRCLMSTAXCES. 13 witHn sis months from the date of the act complained of, and the defendant is entitled, in lieu of or in addition to any other plea, to plead tender of amends before the action was commenced. The Act also provides (o) that if the plaintiff has not, in the opinion of the court, afforded the defendant sufficient oppor- tunity of tendering amends before the commencement of the action, the court may award costs to the defendant. Private. a. ftuasi-judicial acts, e.g., acts of universities, colleges, club committees. Inns of Court. Persons exercising quasi-judicial powers are not liable for removing a man from office or membership, or otherwise dealing with him to his disadvantage, provided they — (1) act in good faith ; (2) give him a fair and sufficient notice of his offence ; (3) give him an opportunity of defend- ing himself ; (4) observe the rules (if any) laid down by statute or by the particular body to which they belong. If these conditions are satisfied the court (o) Section 1, sub-s. (d). 14 LAW OF TORTS. will not interfere, even if it thinks the decision is wrong (o). If the statute give absolute discretionary powers there is no necessity to show proceed- ings in the nature of judicial proceedings, or, indeed, any reason at all for the act com- plained oi{p). b. Disciplinary powers of private persons. Parents and persons in loco parentis are not liable for exercising summary force and re- straint, if acting bond fide and in a reasonable and moderate manner ( j) . The master of a merchant ship has by necessity the right of using force to preserve order and discipline {r) ; but where the case admits of delay, proper inquiry should precede the act. c. Powers conferred by law. Where damage incidentally arises from an act authorized by -statute, no action lies if [o) Dawkins v. Antrobus (plaintiff expelled from club) (1881), 17 Ch. D. 615. {p) Rayman v. Governors of Eughy School (1874), 18 Eq. 28. (?) Blaokstone, i. 463 ; In re Agar-Ellis (1883), 24 Ch.. D. 321 ; Cleary t. Booth, (1893) 1 Q. B. 465 ; and see modem examples collected in Clerk and Lindsell on Torts, 2nd ed. pp. 180 — 182. {r) Per Lord Stowell, in TheAgincomt (1824), 1 Hagg. 271, 274 ; 33 R. B. 717. SPECIAL CIRCUMSTANCES. 15 such act be done with judgment and caution (s) , and the injured party can only recover such compensation as the statute gives him (t) . In Bex V. Pease (u), it was held that where the legislature has authorized a railway company to lay down a railway alongside a public highway, it must be presumed to have con- templated the possibility that the railway would be a nuisance to persons using the highway, and that such persons must submit to the inconvenience necessarily resulting from the working of the railway. This case was confirmed and extended in Hammersmith Railway Co. v. Brand {x), where it was held that the Lands Clauses Consolidation Act and Railway Clauses Consolidation Act do not contain provisions under which a person whose land is not taken by the railway com- pany can obtain statutory compensation for damage occasioned, without negligence, by the vibration of passing trains. In L. B. 8f S. C. Railway Co. v. Truman {y), (s) Per Lord Truro, in i. # iV. W. My. Co. v. Bradley (1851), 3 Mao. & Gr. at p. 341. (<) Per Lord Blackburn, in Geddis v. Froprietors of JBann Reser- voir (1878), 3 App. Cas. at p. 455. {u) (1832), 4B. & Ad. 42. IJ) 1869), L. E. 4 H. L. 171. iy) (1885), 11 App. Cas. 45. 16 LAW OF, TOKTS. the appellant company was held not liable to occupiers of houses near the company's station for noises and annoyance caused by cattle and drovers on the company's land. In Vaughan v. Taff Vale Railway Co. (z), the defendant company was held not liable for damage caused by sparks from their en- gines setting fire to the dry plantation of the plaintiff, as they were authorized to use such engines, and had adopted every precaution which science could suggest to prevent injury. In Smith v. L. §• 8. W. Railway Co. (a), de- fendant company's workmen in a hot summer left some cut grass lying for a fortnight close to the line. The sparks from an engine set fire to this dry grass, and the fire, thus begun, spread, and ultimately burnt down plaintiff's cottage. Held, defendants were liable, having been guilty of negligence. These cases where the statute " directs that a thing shall at all events be done," as in Hammersmith Rail- way Co. V. Brand (h), must be distinguished from those in which only a discretionary power, with choice [z) (1860), Ex. Ch. 6 H. & N. 679. See also Sadler v. South, Staf- fordshire, Sic. Co. (1889), 23 Q. B. D. 17 ; Earrison v. Southwark and Vauxhall Water Co., (1891) 2 Ch. 409 ; Fort Glasgow Sailcloth Co. v. Caledonian Ey. Co. (1893), Sess. Cas. ser. iv. vol. 20, p. 35. (a) (1870), L. R. 6 C. P. 14. (S) Supra, p. 15. SPECIAL CIRCUMSTANCES. 17 of time aad place, is given. In the latter case due regard to the common rights of others must be taken. In Metropolitan Asylum iJistrict Board \. JIiU{c), it was held that a district board could not set up a statute authorizing a small-pox hospital as an answer to an action, or to prevent an injunction issuing to restrain the board from establishing a hospital where the establishment of such hospital would be a nuisance They must find a different site where they would not be creating a nuisance. In Truman v. L. B. §• 8. C. Baihvay Co. (d), Bowen, L. J., mentioned the three types of autho- rization a statute may give : (1) the statute may authorize a nuisance; (2) it may authorize certain works, provided they can be done without causing a nuisance ; or (3) it may authorize works to be carried out, if possible, without a nuisance, but may authorize the nuisance itself, if necessary, in the last resort. II. Equal rights. 1. Inevitable accident. It has been a matter of much discussion whether an inevitable accident — *. e., an acci- dent not avoidable by any such precaution as a reasonable man could be expected to take, is a good defence to an action for damages. (c) (1831), 6 App. Cas. 193. See also MapUy y . London Tramways Co., (1893) 2 Ch. 588. [d) (1885), 29 Ch. D. at p. 108. F. 2 18 LAW OF TORTS. The matter is very fully discussed by Sir Frederick Pollock (see his book, 5th ed., pp. 126 — 141), and that learned author comes to the conclusion that in English, as in American, law, inevitable accident is a good excuse. "But although inevitable accident, or, as it is sometimes called, the act of Grod, is an answer when the different rights are co-ordinated by the common law, yet some of those rights which co-exist at common law may, by the express language of some statute, be subordinated to others. In such a case, the words of the statute must receive their natural construction ; and, if it appears clear that a liability is imposed, even for the result of inevitable accident, the Courts can- not introduce any exception thereto by in- tendment of law " (e). This is always a matter of construction, and, where the excep- tion would work injustice, the intention of the statute must very clearly appear (/) . 2. Exercise of common rights. If a man be injured by the lawful exercise of another's ordinary rights, he has no action ; and it is immaterial whether the exercise of {e) Addison on Torts, 7tli ed. p. 20. (/) See River Wear Commissioners v. Adamson (1877), JJ. E. 2 App. Cas. 743. SPECIAL CIRCUMSTANCES. 19 such rights is prompted by a malicious motive {g). In the words of Lord Hersohell in the House of Lords in the important case of Allen V. Flood (h), " An act lawful in itself is not converted hy a malicious or had motive into an unlawful act so as to make the doer of the act liable to a civil action." Thus, though a man be utterly ruined by his enemy estab- lishing a rival shop across the road, which is carried on at a loss solely to pay ofE an old grudge, yet is he totally without remedy («). But the defendant must keep well within his rights. Thus, in the case cited, "if a man should lie in wait and fright the boys from going to school, that schoolmaster might have an action for the loss of his scholars " (k). III. Sufferer disentitled. 1. Leave and licence. Volenti non fit injuria. No action is maintainable for damage arising from acts suffered by consent, if such acts [ff] Per Lords Watson and Macnaghten, in Mat/or of Bradford y^ Tickles, (189.5) App. Cas. at pp. 698, 601. See also Mogul Steamship Co. T. McGregor, Gow ^ Co., (1892) App. Oas. p. 25. (A) (1898) App. Cas. at p. 135. (i) See The Gloucester Grammar School case (1410, 1411), T. B. 11 Hen. i, fol. 47, pi. 21. (k) Per Holt, 0. J., in Keehle v. Eickeringill (1809), 11 East, 576, n. ; 11 E. E. 273, u. See also the cases of Chasemore y. Richards [infra, pp. 57 — 68), and Acton v. Blundell (1843), 12 M. & W. 324. 2(2) 20 LAW OF TOKTS. were not likely nor intended to cause bodily harm. Thus, boxing with padded gloTes is lawful, but not fighting with the naked fist; football, because no hurt worth speaking of is likely, but not a kicking match (l). But a man may consent to the infliction of bodily harm oh himself for some just cause, as, e.g., to a surgical operation. 2. Self-defence. Defence of one's own person (w), property («), or possession (o) is an excuse; but the force employed must not be out of proportion to the apparent urgency of the occasion. It must not exceed what an average reasonable man in a similar posi- tion would believe to be necessary ; e. g., it is not justifiable to use a deadly weapon to defend oneself from a blow with the hand {p). 3. Acts done of necessity to avoid a greater harm ; e.g., pulling down houses to stop a fire is no doubt excusable [q). [1) Meg. v. Coney (1882), 8 Q. B. D. per Cave, J., at p. 539, and per Stephen, J., at p. 549. (m) Dale v. WooA (1822), 7 Moore, C. P. 33. («) Scott Y. Shepherd (1773), 2Wm. B. 892 ; and seep. IbO, infra. \o) Soberts v. Taylor (1845), 1 C. B. 126, 127. [p) Seece v. Taylor (1835), 4 N. & M, 469. (§•) Dyer, 36 J. ( 21 ) CHAPTER IV. OF LIABILITY FOR THE WEONGS OF OTHEES. The wrongdoer himself is always personally liable, both where he himself has done the act and where he has distinctly authorized it. As regards ratifica- tion, however, only such acts bind a principal by subsequent ratification as were done at the time on the principal's behalf (a). But what if the party charged says he is acting as the servant of another ? In Ciillen v. Thomson's Trustees (b) the managers of a joint-stock company were held personally liable for fraudulent statements, and were not allowed to excuse themselves on the ground that they had acted as the servants or agents of the directors in making such statements; and Lord Westbury, L.O., said "all persons directly concerned in the commission of a fraud are to be treated as principals, and must not be permitted to excuse themselves on the ground that they acted as the agents or servants of others ; for the contract of agency or service cannot impose any obligation on the agent or servant to commit,. (a) Wilson v. Tummm (1843), 6 M. & G. 236. (*) (1862), i Maoqueen's Scotch App. 424. 22 LAW OF TOKTS. or assist in the committing of, fraud." And this is equally true of all wrongs besides fraud. Liability of a master for the wrongful acts or omissions of his servants. — A master is responsible for the wrong- ful acts or omissions of his servant committed in the course of his employment, whether the wrong be committed negligently, wantonly, or even wilfully, and though no express command or privity of the master be proved. This is the general rule : we have thus two points to consider: — I. What is "the course of the employ- ment " ? and II. Who is to be deemed a servant ? Of these in their order : — I. What is " the course of the employment " ? In Limpus v. London General Omnibus Co. (c), the driver of defendants' omnibus drove it across the road in front of plaintiff's rival omnibus, which was thereby overturned. Defendants had expressly forbidden their drivers to obstruct any omnibus. Held, that defen- dants were liable, the question being (perWilles, J.), " did the servant do it to serve his master's interests, or did he act merely from private spite, and with the intention of injuring his enemy " ? The master is liable in the former, but not in the latter case [d). (c) (1862), 32 L. J. Ex. 34. {d) See also Seymour v. Greenwood (1861), 7 H. & N. 355 ; 30 Ii. J. Ex. 327 ; British Mutual Banking Co. v. Charnwood, ^e. Co. (1877), 18 Q. B. D. 714 ; Marsh v. Joseph, (1897) 1 Ch. 213. OF LIABILITY FOE THE WRONGS OF OTHERS. 23 In Poutton V. L. 8f S. W. Rail Co. (e), a station- master having demanded payment for the carriage of a horse conveyed hy defendant company, arrested and detained plaintiff for non-payment thereof until it was ascertained by telegraph that all was right. The railway company had no power to arrest for non- payment of carriage. Therefore, the station-master, in. arresting plaintiff, did an act which was wholly illegal, not merely in the mode of doing it, but in the doing of it at all. Held, the railway company were not liable ; and Blackburn, J., distinguished this case from Limpus v. London General Omnibus Co., pointing out that there "the act done by the driver was within the sco pe o f his authority , though, no doubt, it was a wrongful and improper act, and therefore his masters were responsible for it. In the present case, an act was done by the station-master c ompletely out of the scope of his authority, which there can be no possible ground for supposing the railway company authorized him to do, and a thing which could never be right on the part of the company to do. Having no power themselves, they cannot give the station-master any power to do the act. Therefore the wrongful imprison- ment is an act for which the plaintiff, if he has a remedy at all, has it against the station-master per- sonally, but not against the railway company" (/). [e) (1867), L. E. 2 Q. B. 534. (/) (1862), L. E. 2 Q. B. p. 540. 24 LAW OF TORTS. In Abrahams v. I)eakin{g),^e plaintiff had offered the defendant's barman a ten-mark piece, and on its being refused, gave a half-sovereign in its place, for which he received change. Subsequently the manager of defendant's bar followed the plaintiff and gave him in charge for ^attempting to pass bad money. Held, that defendant was not liable, for the manager had no implied authority to arrest the plaintiff, for defendant's property was no longer in danger, and the arrest was made only in order to vindicate the law by punishing plaintiff for a criminal offence which he was supposed to have already committed. Notice four cases on the liability of a railway com- pany for the acts of its servants, two in which the company were held liable, two in which they were not. Company held liable : — Bayley v. Manchester, Sheffield and Lincolnshire Rail. Co. (h) : Porter pulls plaintiff out of carriage, thinking he is in the wrong train. Company held liable, on the ground that porter was acting within his general autho- rity. Goffi V. G. iV. Bail. Co. {i) : Company held liable for arrest of plaintiff by mistake (?) (1891) 1 Q. B. 516 (C. A.) ; 60 L. J. Q. B. 238. (A) (1872, 1873), L. E. 7 C. P. 415. (t) (1870), L. E. 6 Q. B. 65. OF LIABILITY FOR THE WRONGS OF OTHERS. 25 of company's servants, servants having autho- rity to arrest for non-payment of fare. Company not liable : — Allen V. L. 8j- S. W. Rail. Co. (k) : Company's hooking-clerk gave into custody a person sus- pected of robbing the till, after the attempt had ceased. Held, there was no implied authority for the act, and therefore the com- pany was not liable. Edwards v. L. S^ N. W. Hail. Co. (l) : Defendant company's servant in charge of station arrests plaintiff on suspi- cion of stealing company's goods. Company held not liable, servant's act being plainly beyond his authority — not part of the com- pany's general business, nor for their apparent benefit. The master, then, is liable for the wrongs of his servant committed in the course of his employment, and these may include wrongs resulting from the servant's disobedience to positive commands. In Whatman v. Pearson {m), a contractor forbade his workmen to leave their horses, or to go home during the dinner hour. Owing to disregard of this order, ijc) (1861), 3 E. & E. 672. \t) (1870), L. R. 5 C. P. 445. (ot) (1868), L. R. 3 C. P. 422. See aXso Engleheart v. Farrant ^- Co., (1897) 1 Q. B. 240, and of. Limpus v. London General Omnibus Co., supra, p. 22. 26 LAW OF TORTS. a horse wliicli was left unattended ran away, and injured plaintiS's railings. The master was held responsible, on the ground that the workman was acting within the general scope of his authority to conduct the horse and cart during the day. On the other hand, where the enterprise is entirely the servant's, so that he may be said to be out " on a frolic of his own" («), the master is not liable. In Storey v. Ashton (o), a carman, while out on his em- ployer's business, at the request of a fellow servant, went out of his way to fetch something for the latter. While so doing, he ran over the plaintiff. Upon these facts the master was held not liable. So an employer is liable for the frauds of his servant committed without his authority, but in the course of his service, and for the employer's purposes (p) . II. Who is to be deemed a servant ? As stated above (q), a man is liable for the wrongs of his servants committed in the course of their employment, but as a general rule (»•) he is («) Per Parke, B., in Joel v. Morrison (1834), 6 C. P. 501, (o) (1869),L. R. 4Q. B. 476. See also Maynerv. Mitchell (1811), 2 C. P. T>. 357 ; and compare Stevens v. Woodward (1881), 6 Q. B. D. 318, with Ruddiman v. Smith (1889), 60 L. T. 708. (p) Per cur. in Sdrwiclc \. English Joint Stock Bank (1867), L. R. 2 Ex. at p. 265 ; Souldsworth t. City of Glasgow Banlc (1880), 5 Ap. Ca. 317. [q) p. 22. (r) For the exceptions, see infra, pp. 28 — 30. OF LIABILITY FOR THE WRONGS OF OTHERS. 27 not liaMe for the wrongs of an independent con- tractor employed by him. What, then, is an independent contractor, as dis- tinguished from a servant ? An independent con- | tractor is one who undertakes to produce a given i result, without being in any way conti oiled as to the | method by which he attains that result. A servant, on the other hand, is under the order and control of his master in respect of the means and methods used to attain the end for which he is employed (s). A person employing an independent contractor is not generally responsible for the wrongful acts or omissions of the contractor. In Quarman v. Bur- nett it), the defendants hired horses and a coachman from C, and provided their own carriage and livery for the coachman, who received regular wages from C. and two shillings a week from the defendants. Owing to the coachman's negligence in leaving the carriage, the horses bolted and the plaintiff was injured. The defendants were held not liable, as the coachman was not their servant, but the servant of C, an independent contractor. In Beedie v. L. 8f N. W. Bail. Co. (it), defendant (s) See the judgment of Compton, J., in Sadler v. SenlocJc (1855), i E. & B. 570, 578 ; also Donovan v. Zaing, ^-c. Syndicate, (1893) 1 Q. B. 629 (C. A.), and PoUock, 5tli ed. pp. 74, 75. {t) (1840), 6 M. & W. 499 ; see also Jones v. Mayor of Liverpool, (1885) 14 Q. B. D. 890. [u) (1849), 4 Exoh. 244. 28 LAW OF TORTS. company agreed with certain contractors for the con- struction of a line ; the company to have the general right of superintending the work, and the power of dismissing incompetent workmen. Owing to the negligence of the contractors' workman, plaintiff's husband was killed, and this was an action under Lord Camphell's Act (9 & 10 Vict. c. 93) against the company. Held, the company was not liable, as the workman was not their servant, but the servant of the independent contractors. But the person employing the contractor is liable in five cases : — 1. When he personally interferes in the con- tractor's work. In Burgess v. Gray («), a contractor, employed by defendant to make a drain, left a heap of gravel by the roadside. Defendant paid a navvy to cart it away. This was not properly done, and plaintiff was consequently upset as he was driving home. Held, that the defendant was liable. 2. When the thing contracted to be done is un- lawful. — In Ellis V. Sheffield Gas Consumers' Co. (y), defendant company, without the necessary special powers, employed a contractor to open trenches iu the streets of Sheffield. Plaintiff was injured by falling over a heap of (x) (1845), 1 C. B. 678. (i/) (1853), 23 L. J. Q. B. 42. OF LIABILITY FOR THE WRONGS OF OTHERS. 29 stones left by tlie contractor. The company was held, liable for the contractor's wrongful act. 3. When the thing contracted to be done, though lawful in itself, will naturally be attended by in- jurious consequences, unless effectually guarded against. — In Bower y. Peate iz), defendant em- ployed a contractor to pull down an old house and erect a new one. The contractor expressly undertook to support plaintiff's house, and to be liable for all damage, but defendant was held liable for the damage done. In Hughes v. Perdvalia), defendant employed a contractor to rebuild a house. The contractor's servants, in so doing, out through a party-wall and in- jured plaintiff's house. Defendant was held liable on the ground that the building opera- tions in question were dangerous to plaintiff's house. On the other hand, the person employ- ing the contractor is not liable when the thing contracted to be done is lawful, and not neces- sarily dangerous (5). 4. When there is a statutory obligation to do the thing properly. In Hole v. Sittinghourne {z] (1876), 1 Q. B. D. 321. (a) (1883), L. E,. 8 App. Gas. 443. See also Black v. Chrisichurch Finance Co., (1894) App. Gas. 48 ; Sardaker v. Idle District Council, (1896) 1 Q. B. 335. (b) ButUr V. Smter (1862), 31 L. J. Ex. 214. 30 LAW OF TORTS. Rail. Co. (c), the defendant company were authorized by statute to make an opening hridge over a navigable river. A contractor employed by the company made a bridge which would not open, and plaintiff's vessel was thereby prevented from navigating the liver. The company was held liable. 5. In cases under sect. 4 of the Workmen's Com- pensation Act. 1897 {d), which provides that where the " undertakers," as therein defined, employ a contractor, such contractor's ser- vants are to be able to recover compensation under the Act from the " undertakers," with- out prejudice, however, to the " undertakers'" right to be indemnified by the contractor. liability of master to servant for injuries incurred by servant during service. It will be convenient to consider this subject under three heads, vi^. : — (1) The liability of the master at common law; (2) his liability under the Em- ployers' Liability Act, 1880 ; (3) his liability under the Workmen's Compensation Act, 1897. As will hereafter be seen, neither of these Acts ap- plies to servants of all kinds. In each case the Act is limited in its application to " workmen," but the defini- (c) (1861), 6 H. & N. 488. [d) See pp. 39 — 41, infra. OF LIABILITY FOR THE WRONGS OF OTHERS. 31 tion of " workman " in the Workmen's Compensation Act, 1897, is different from, and wider than, that in the Employers' LiahiKty Act, 1880. The Work- men's Compensation Act, 1897, does not repeal or amend the Employers' Liability Act, 1880, but practically supersedes its operation as regards the particular employments to which the later Act applies. Subject to this, the Act of 1880 is still in force. 1. At common law the master was only bound — 1. To take care to provide competent feUow- servants ; 2. To take care to provide safe and efficient machinery, or, as it has • been put, to take reasonable precautions to insure his ser- vant's safety ; 3. Not to be guilty of personal negligence. The mere relation of master and servant does not imply any agreement on the part of the master to warrant the servant against risks incidental to the employment. Thus, in Priestley v. Fowler (e), defen- dant's servant, whose thigh was fractured owing to the overloading of a cart in the charge of another servant, was held disentitled to recover damages. On the other hand, in Mellors v. 8haw{f), plaintiff, a miner, succeeded in an action against his masters for {e) (1837), 3 M. & W. 1. (/) (1861), 30 L. J. Q. B. 333. 32 LAW OF TORTS. injuries caused by the unsafe condition of the mine ; but there the plaintiff proved that the defendant knew of such unsafe condition. This is a rule of the common law, but the first decision upon the point was in 1837, in Priestley v. Fowler {supra) ; and in 1868, in Wilson v. Merry (g), it was held to extend to injuries caused to a work- man by a foreman or person occupying a position of superintendence in the same employment. Independently, therefore, of the statutory law on the subject, the position of a workman who has sustained personal injuries in the course of his em- ployment is inferior to that of a stranger. For at common law it is open to the employer in any action brought against him by the workman not only to set up every defence which would be available against anyone not in his employment, but, in addition, where the injury was caused by the negligence of a fellow-servant of the workman, the employer can set up the so-called defence of " common employment," since the workman, in entering the employment, is presumed to have accepted this kind of risk. A person who volunteers to assist servants engaged in their work becomes their fellow-servant, so far as an action for personal injuries is concerned (A) ; but where a person aids the servants of another with (17) (1868), L. E. 1 Sc. & D. 326. (A) Deffst V. Midlands^. Co. (1857), 1 H. & N. 373. OF LIABILITY FOE THE WRONGS OF OTHERS. 33 sucli other's consent or acquiescence, not as a mere volunteer, but for the purpose of expediting some business of his own, he is not deemed a servant, and so can recover («) . 2. Employers' Liability Act, 1880 (43 & 44 Vict, c. 42). This Act was mainly directed against the defence of " common employment," and in cases to which it applies the eilect of it is to place the workman in. the same position as that of a stranger. By its provisions any railway servant, or any person to whom the Employers and Workmen Act of 1875 applies — i.e., any labourer, servant in hus- bandry, journeyman, artificer, handicraftsman, miner, or person otherwise engaged in manual labour (not being a domestic or menial servant, or a seaman) — and the persons entitled in case of death of any such railway servant or person, are to have the same rights of compensation and remedies against the employer as if such railway servant or person had not been in his service, for any personal injury caused by any of the following reasons : — (1) By reason of any defect in the condition of the ways, works, macMnery, or plant, used in the employer's business, which defect was caused or remained undiscovered through the negH- (i) Wright v. L. ^ N. W. My. Co. (1876), 1 Q. B. D. 252. F. 3 34 LAW OF TOETS. genee of the employer, or of some person in his service whose duty it was to see to the condition of such things. This applies when the defect arises either from original fault of the works, &c., or from want of repair (y). It also applies when sound plant is unfit for the use to which it is put (A). (ii) By reason of the negligence of a person in the service who had any superintendence entrusted to him whilst in the exercise of such superin- tendence. — Such person must be one whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour. But it was held in Osborne v. Jack- son {I) that a man might be in the exercise of superintendence, though at the time volun- tarily assisting in manual labour. (ill) By reason of the negligence of a person in the service to whose orders the injured workman is, at the time of the injury, bound to conform, where the injury results from so conforming. (iv) By reason of the act or omission of any person in the service done or made in obedience to the rules or bye-laws of the employer, or in (j) Seske v. SamueUon (1883), 12 Q. B. D. 30. (i) Cripps V. Judge (1884), 13 Q. B. D. 383. [l) (1883), 11 Q. B. D. 619. OF LIABILITY FOK THE WRONGS OF OTHEKS. 35 obedience to particular instructions of the employer, or of some person duly delegated by Mm in that behalf, where the injury results from some impropriety or defect in the rules, bye-laws, or instructions. But no bye-law is to be deemed defective whicli shall have been approved as proper by any department of government under any Act of Parliament, (v) By reason of the negligence of a person in the service having the charge or control of any signal, points, locomotive engine, or train upon a railway. This has been held applicable to a private railway (w). Provided that in each of the above cases the work- man injured cannot recover if he knew of the defect or negligence, and did not complain to the employer or some person superior to himself in the service, within a reasonable time, unless he was aware that the employer, or such superior, already knew of the said defect or negligence. In Thomas v. Quartermaine i^n), the plaintifE fell into an insufficiently-fenced cooling vat at the de- fendant's, his employer's, brewery. It was found that both plaintifE and defendant knew of the defect. It was thereupon held by Bowen and Fry, L. JJ. (Lord Esher, M. E., dissentiente), that the maxim (ot) Doughty v. Firhmlc (1883), 10 Q. B. D. 358. («) (1886), 17 Q. B. D. 414; (1887), 18 Q. B. D. 685 (C. A.). 3(2) 36 LAW OF TORTS. " volenti non fit injuria " applied, and therefore the plaintifiE could not recover. This case was further discussed and explained in Yarmouth v. France (o), where it was laid down " that if a workman, know- ing and appreciating the danger and the risk, elects voluntarily to encounter them, he can no more main- tain an action founded upon the statute than he can in cases to which the statute has no application. But the mere fact that the plaintiff knew of the danger, and yet incurred it, is not conclusive " {p). It is im- portant to notice that the maxim is not " scienti non fit injuria," but " volenti non fit injuria." " Mere knowledge of the danger will not do ; there must be an assent on the part of the workman to accept the risk, with a full appreciation of its extent, to bring the workman within the maxim ' volenti non fit in- juria'" (q). Finally, it must be noticed that this interpretation of the law was expressly approved by the House of Lords in the recent case of Smith v. Baker (r). But in Baddeley v. Earl Granville (s), it was held that the maxim does not apply where the defendant has been guilty of a breach of duty im- (o) (1887), 19 Q. B. D. 647. {p) Per Lindley, L. J., at p. 659. (?) Per Ester, M. R., at p. 657. See also Lord Herscliell's judgment in Memhery v. O. W. Sail. Co. (1889), 14 App. Cas. 179, 190. (r) (1891) App. Cas. 325. (s) (1887), 19 Q. B. D. 423. OF LIABILITY FOR THE WRONGS OF OTHERS. 37 posed by statute. If the injury result in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of action as the workman himself would have had — i.e., the right of action given by Lord Campbell's Act (if) and the Act amending it (m). The amount of damages recoverable is limited to a sum equal to the estimated earnings of a person in the grade, employment, and district of the person in- jured, during the three years immediately preceding the injury. " Section 3 of the Employers' Liability Act does not give a measure of damages, but the limit of maximum damages which may be awarded under that Act" (®). If a penalty is payable under some other statute it must be deducted from the compensation, and it cannot be received after an action to recover com- pensation. Notice of the injury must be given to the employer within six weeks. The action must be commenced within six months, and in the case of death within twelve months. But in the case of death, want of notice is immaterial if the judge think there is reasonable ground for not giving it. The notice (t) 9 & 10 Vict. c. 93. See pp. 174—176, infra. [u) 27 & 28 Vict. c. 95. See p. 175, infra. (v) Per Cave, J., in £orlicle v. Head (1885), 34 "W. E. 102. 38 LAW OF TOKTS. (whicli must be in writing (eo), though not necessarily in technical language («) ) must give the name and address of the party injured, and state in ordinary language the cause and date of the injury ; and it must be served by delivering it at the place of busi- ness, or at the residence, of the employer, or by send- ing it in a registered letter properly addressed to the employer at such place as aforesaid, or at his last- known place of business or residence. Defects and inaccuracies do not render the notice invalid, unless the judge believe (1) that the defen- dant is thereby prejudiced in his defence, and (2) that the defect or inaccuracy was for the purpose of mis- leading (y) . Actions under the Act must be brought in the County Court, but may be removed iato a superior court on the application of either party in the usual manner. Munday v. Thames Ironworks Co. (z), however, shows that such removal will only be ordered under very exceptional circumstances. A workman can contract himself out of the Act (a), and such a contract is a bar to any claim under Lord Campbell's Act. (w) Mot/ley. JenUns (1881), 8 Q. B. D. 116. {x) Stone T. Stjde (1882), 9 Q. B. D. 76. (y) Carter v. Drysdale(n$i), 12 Q. B. D. 91. (z) (1882), 10 ft. B. D. 69. (») Griffiths V. Lord Dudley (1882), 9 Q. B. D. 357. OF LIABILITY FOR THE WKONGS OF OTHERS. 39 The operation of the Employers' Liability Act, 1880, has been extended from year to year since the time when it expired in 1887. 3. Workmen's Compensation Act, 1897 (60 & 61 Vict, c. 37). This Act has effected radical changes in the liability of those employers to whom it applies, and has placed the workman who comes within its operation in a far more favourable position than that of a stranger. It has abolished three of the principal defences hitherto open to such employers. In the case of those em- ployments within the Act, the employer who is sued for injuries sustained by the workman in the course of his employment can no longer set up as a defence (i) volenti non fit injuria (h), or (ii) inevitable acci- dent (c), or (iii) contributory negligence of the work- man (d). The employer is not to be liable if it is proved that the injury is attributable to the serious and wilful misconduct of the workman (e), but this is very far removed from the doctrine of contributory negligence. The Act is to apply only to an employment by the " undertakers " as therein defined on or in or about a railway, factory, mine, quarry, engineerin|^ (i) See pp. 35 — ^37, supra. (c) See pp. 17 — 18, supra. [d) See p. 156, infra. («) Sect. 1 (2) (o). 40 LAW OF TORTS. work, or certain buildings exceeding thirty feet in height (/). "Wtere tlie injury is caused by the personal negli- gence or wilful act of the employer, or of some person for whose act or default the employer is responsible, the workman can claim compensation under the Act or take the proceedings which were open to him before the Act. In other cases the workman can only claim compensation under the Act [g) . If a workman brings an action independently of the Act, and it is deter- mined that the injury is one for which the employer is not liable apart from the Act, but that he would haye been liable to pay compensation under the Act, the workman may, if he choose, have the compensation assessed under the provisions of the Act {h). A.nj question as to the liability to pay compensa- tion, or as to the amount or duration of compensation, must be settled by arbitration in accordance with the provisions of the Act (?) ; but the amount is not to exceed 300/. in case of death, or 1/. a week in case of disablement (J). Employers and workmen coming within the Act cannot contract themselves out of it, unless the con- (/) Sect. 7. iff) Sect. 1 (2) (b). (A) Sect. 1 (4). (i) Sect. 1 (3), and Second Schedule. {fj First Schedule. 0¥ LIABILITY FOR THE WRONGS OF OTHERS. 41 tract provides a scheme of compensation whicli the Registrar of Friendly Societies certifies is on the whole not less favourable to the workmen than the Act{k). Notice of the accident must be given as soon as practicable after the happening thereof. The want of or defect or inaccuracy in such notice is not to be a bar to the proceedings, if it is found that the em- ployer is not prejudiced in his defence, or that such want, defect, or inaccuracy was occasioned by mistake or other reasonable cause (l) . The claim for compensation must be made within six months of the accident, or, in case of death, within six months of the death (m). [Tc) Sects. 3, 9. {I) Sect. 2 (1). (»») Ibid. 42 LAW OF TORTS. CHAPTER V. OP WEONGS TO PEOPEETY. A. Of Wrongs to Real Property. Trespass is the wrongful and unwarrantable entry upon the soil or land of another person. ' The essential to constitute trespass is therefore entry, which may be either actual or constructive. Constructive entry may be roughly described as every interference with the land of another — e.g., throwing rubbish or pouring water on your neigh- bour's land. Neither force nor unlawful intention, nor actual damage, nor the breaking of an inclosure, is necessary to constitute a trespass. Besides bringing an action for damages, the person whose land is trespassed upon may — 1. Forcibly defend his possession against a tres- passer. 2. Forcibly eject him. In neither case, however, must unnecessary vio- lence be used. OF WRONGS TO PROPERTY. 43 To maintain an action for trespass, plaintiH must prove that at the time the wrong was committed he had either — 1. Title; or 2. Possession, which may he actual or constructive. In English law, constructive possession means, either the possession of an agent or servant, or an immediate right to possess, or possession conferred by law in certain cases independently of any physical apprehension or transfer {a) . By means of the doc- trine of constructive possession the strictly possessory remedies were largely extended in favour of owners not themselves in actual possession. The actual occupier of real property is always entitled to maintain an action for trespass thereon. On the other hand, the owner who has piarted with possession in favour of a tenant or lessee, cannot maintain an action for trespass ; he is, however, entitled to sue where an injury is done to his rever- sionary estate, provided that such injury is of a permanent nature, and deteriorates the marketable value of the property (5). In such cases the tenant is entitled to sue in respect of the immediate injury, (a) Smith v. MilUs (1786), 1 T. E. 480. See also Pollock, 5tli ed. p. 320, iiote(m) ; and upon the whole of this difBciilt and com- plicated subject, see "An Essay on Possession in the Common Law," by Sir Frederick Pollock and Mr. Justice Wright. (*) Tucker -v. Kewman (1839), 11 A. & E. 40. This, under the old system of pleading, would have been an action on the case. 44 LAW OF TORTS. and the reversioner in respect of the diminished saleable value of the property. The defences to an action for trespass are : — 1. On the ground of necessity, e.g., to escape some pressing danger. 2. Leave and Licence, by implied invitation, as entering a shop or inn. 3. Liberum tenementum, that it is the defendant's land. This raises the question of title. There- fore the action of trespass is a convenient method for trying the question of title to lands. 4. By authority of law — e.g., entry to serve legal process, or to distrain. 5. To re- take one's goods or cattle, but entry is not justified by the m«re fact that defendant's goods or cattle are there. It must be shown that they came there by plaintiff's act, or that they had been stolen from defendant. 6. To abate a nuisance, after notice (c). 7. On the ground of some special property or ease- ment. Joint tenants, or tenants in common, can only sue one another in trespass when the act complained of is inconsistent with the complaining party's right — e.g., carrying off the soil. [e) See infra, p. 54. OF WROTSGS TO PROPEETY. 45 By the statute 21 Jac. 1, c. 16, s. 3, actions for trespass must be brought within six years nest after the cause of action arose. Dispossess ion is wrongfully keeping possession of land from its rightful owner. Former remedy — ^Action of ejectment. Now by Jud. Act, 1873— Action to recover the land. PlaintifE must recover by the strength of his own title, not by the weakness of his adversary's, e.g., mere possession ia prima facie evidence of title until the claimant makes out a better one ; or the defendant may plead jus tertii — i.e., the right of a third person — but the claimant cannot assert ^ms tertii in support of his claim, possession being a good title against all except the true owner. By the Statutes of Limitation {d) no action lies for the recovery of land or rent, unless brought within twelve years after the right to maintain such action shall have accrued to the claimant, or to the person through whom he claims. Where, however, the claimant or any person through whom he claims has been deprived of such land or rent by the concealed fraud of the person in possession, or any person through whom he claims, the statute does not begin to run until "the time when such fraud shall or with reasonable diligence might have been first known or {d) 3 & 4 Wm. 4, c. 27, s. 2 ; and 37 & 38 Vict. o. 67, s. 1. 46 LAW OV TORTS. discovered " (e) . Claimants under the disability of infancy, coverture, or unsound mind, may bring their action within six years after such disability has ceased. But in no case can any such action be brought after thirty years, except in the case of con- cealed fraud. A lawful owner out of possession may peaceably enter, but must not use force. If he does so, though technically he cannot be liable for a trespass on his own land, the better opinion appears to be (though it is by no means free from doubt) that he will be liable for assault, and, in addition, a forcible entry of this kind is an offence against 5 Eie. 2, c. 18, s. 1 (/). To make a man a trespasser ab initio, two things must always concur : — 1. There must be a misfeasance. 2. The rights infringed must be given by the law, and not by an individual. In The Six Carpenters' Case (g) , six carpenters entered a London tavern, ordered and paid for wiae, then ordered more which they did not pay for. Was their original entry rendered tortious by this refusal ? No ; (e) 3 & 4 Wm. 4, 0. 27, s. 26. See also Gibbs v. Guild (1882), 9 Q. B. D. 59. (/) See PoUook, 6tli ed. pp. 357—360 ; JBeddall v. MaiiUnd (1881), 17 Ch. D. 174 ; Edwiele v. Hcmhes (1881), 18 Ch. D. 199. As to what constitutes forcible entry, see Jones v. I'oley, (1891) 1 Q. B. 730. ig) 1 Sm. L. C, lOtli ed., p. 127. OF WKONGS TO PROPERTY. 47 for sucli refusal was a mere non-feasance. Notice that the reason why misfeasance does not make a man a trespasser ab initio when the authority is con- ferred hy an individual is that such authority can be limited or recalled at will, whereas rights given by law require to be more strictly protected. Aecordirig to the above rule, a misfeasance in dis- training would make a landlord a trespasser ah initio, which would obviously work great hardship. There- fore a remedial statute, 11 Geo. 2, c. 19, s. 19, provides that where a distress is made for rent justly due, and an irregularity afterwards occurs on the landlord's part, the distress is not on that account to be deemed unlawful, nor the person making it a trespasser ab The words on notice boards, " Trespassers will be prosecuted," are, "if strictly construed, a wooden false- hood " {h), as trespass is not a crime, and were originally intended to secure costs under certain statutes, which provided that in actions for trespass, when less than 40s. was recovered, no more costs than damages should be allowed, unless the judge certified that the action was brought to try a right, or that the trespass was "wilful and malicious." Trespass after notice not to trespass on plaiutiEE's lands was held to be (h) Maitland's " Justice and Police " (English Citizen Series), p. 13. 48 LAW OF TORTS. wilful and malicious, and special communication of such notice to defendant was not required (*') . Where a person has been injured on the land of another, his position with regard to the question whether he can maintain an action in respect of such injuries will depend upon whether, at the time of his sustaining such injury, he was — 1. A trespasser; 2. A licensee ; or 3. A person coming on lawful business. 1. A trespasser cannot maintain an action where the " unlawful act or conduct on his own part is con- nected with the harm suffered by him as part of the same transaction " (k) ; e.g., if he tumbles into a hole or unguarded pit, "he has no remedy for any injury suffered thereby, as the hurt is in such ease caused by his own carelessness and misconduct" (l). On the other hand, he can maintain an action where the unlawful act or conduct on his own part is not so con- nected with the harm suffered by him as part of the same transaction ; e.g., if, whilst he is trespassing, the owner of the land comes and knocks him down or assaults him without any provocation or excuse. In Ilott V. Wilkes (m), it was held that a trespasser, (i) Bowi/er v. Coolc (1847), 4 C. B. 236. (k) PoUook, 5tli ed. p. 170. {I) Per Wilde, B., in Bolch t. Smith{l862,), 7 H. & N. 736. {m) (1820), 3 B. & Aid. 304 ; 22 R. R. 400. OF WRONGS TO PROPERTY. 49 "with notice that spring- guns were set on the land he trespassed on, could not recover for injuries caused by such guns, on the ground that he voluntarily exposed himself to the mischief complained of. On the other hand, in Bird -v. Sollrook (w), a trespasser wounded in similar circumstances, hut without such notice, was held entitled to recover. In consequence of the former case, setting spring-guns, except by night in a dwelling-house for the protection thereof, was made a criminal offence by 7 & 8 Geo. 4, c. 18, now re- pealed and substantially re-enacted by 24 & 25 Vict, c. 95, s. 1, and c. 100, s. 31. By the General Highway Act (5 & 6 Will. 4, c. 50), s. 70, it is illegal to sink a pit, or erect a steam or other like engine, gin or machinery attached thereto, within 25 yards of a carriage or cartway, unless con- cealed so as to prevent danger. The same Act also prohibits the erection of windmills within 50 yards, of furnaces within 15 yards, and letting off fire- works within 50 feet of a carriage or cartway. By the ftuarries Fencing Act, 1887 (50 & 51 Yict. c. 19), s. 3, "where any quarry dangerous to the public is in open or unenclosed land, within 50 yards of a highway or place of pubho resort dedicated to the public, and is not separated there- from by a secure and sufficient fence, it shall be kept [n] (1828), 4 Bing. 628 ; 29 R. R. 657. F. 4 50 LAW OF TORTS. reasonably fenced for the prevention of accidents, and unless so kept shall be deemed to be a nuisance liable to be dealt with summarily in manner provided by the Public Health Act, 1875." And by the Barbed Wire Act, 1893 (56 & 57 Vict. c. 32), 8. 3 (1), " Where there is on any land adjoining a highway within the county or district of a local authority a fence made with barbed wire, or in or on which barbed wire has been placed, and such barbed wire is a nuisance to such highway, it shall be lawful for such local authority to serve notice in writing upon the occupier of such land requiring Mm within a time therein stated (not to be less than one month nor more than six months after the date of the notice) to abate such nuisance " ; and by sect. 3 (2), " If on the expiration of the time stated in the notice the occupier shall have failed to comply therewith, it shall be lawful for the local authority to apply to a court of summary jurisdiction, and such court, if satisfied that the said barbed wire is a nuisance to such highway, may, by summary order, direct the occupier to abate such nuisance ; and on his failure to comply with such order within a reason- able time, the local authority may do whatever may be necessary in execution of the order, and recover in a summary manner the expenses incurred in con- nection therewith." 2. A licensee, i.e., a person to whom the owner of OF WRONGS TO PROPERTY. 51 certain property has given consent to do certain acts which', without passing any interest in the property, merely prevents such acts from being wrongful, can successfully maintain an action against his licensor, if the danger through which he sustained hurt was of a concealed character, which the licensor knew of and the licensee did not. In the words of Willes, J., in Oautret v. JEgerton (o), there must be something equivalent to laying a trap for the unwary licensee. In Southcote v. Stanley {p), plaintiff, guest of de- fendant, was leaving defendant's house when a pane of glass fell from the door and cut him. Held, upon above grounds, defendant was not liable. 3. Anyone who has entered upon premises on lawful business, in which the person having the control of such premises has an interest, and who has sustained injuries in consequence of such premises not being kept in a reasonably secure condition, is entitled to main- tain an action for damages against such person. In Indermaur v. Barnes {q), plaintiff, in the employ of a gasfitter, went by appointment with defendant to see that certain gas apparatus fixed by his employer on defendant's premises acted properly. While there plaintiff fell down an unfenced shaft and was injured. Held, on above ground, defendant was liable. (o) (1867), L. R. 2 C. P. 371. (p) (1856), 1 H. & N. 247. (}) (1866), L. R. 1 0. P. 274. 4(2) 62 LAW OF TORTS. The same principle is illustrated in the eases of Smith V. London and St. Katherine Docks Co. {>•) and Heaven v. Pender (s). In the former case, the defen- dants, a dock company, provided gangways from the shore to the ships lying in their dock, the gangways being made of materials belonging to the defendants and managed by their servants. The plaintiff went on board a ship in the dock at the invitation of one of the ship's officers, and, while he was on board, the defendants' servants, for the purposes of the business of the dock, moved the gangway, so that it was, to their knowledge, insecure. The plaintiff, in igno- rance of its insecurity, was returning along it to the shore, when the gangway gave way and he was injured. Held, that there was a duty on the de- fendants towards the plaintiff to keep the gangway reasonably safe, and that he was entitled to recover damages from them for the injuries he received. In Heaven v. Pender («), plaintiff, a workman, wa» employed by A. to paint A.'s ship, lying in a dock. Defendant, the dock owner, provided staging for workmen's use. The staging, not being strong enough, broke, and plaintiff was injured. Held, defendant was liable, on the ground that persons having the control of buildings or other structures intended for human use and occupation are bound to M (1868), 3 0. P. 326. [s] (1883), 11 Q. B. D. 503. OF WRONGS TO PROPERTY. 53 keep them in a reasonably safe condition, and are liable for injuries caused by neglect of such duty to any person upon the spot, or engaged in work on or about the property whose condition is in c[uestion, in the course of any business in which the occupier has an interest. In O'Neill v. Everest (t) the two last-mentioned cases were cited in the Court of Appeal on behalf of the plaintiff, but were distinguished on the ground that in both there was a concealed danger ; in the one case the injury was caused by an insecure plank, in the other by a rotten rope. In the course of his judgment Lord Herschell, following the principle laid down in Smith v. London and' 8t. Katharine Docks Co. {21), pointed out that, in order to succeed in an action of this kind, the plaintiff must prove a duty on the part of the defendant towards him to keep the premises in a reasonably secure condition, and, further, that the injury was the direct result of a breach by the defendant of such duty. Persons sometimes have rights over the lands of others, entitling them to do acts which, if they had not such rights, would be trespasses. Of such rights the chief are easements and rights of common, a de- (t) (1892), 61 L. J. Q. B. 453 ; 66 L. T. 396. See alsoMiller v. BancocJe, (1893) 2 Q. B. 177 (C. A.) ; Lane r. Cox, (1897) 1 Q. B. 415. {«) (1868), 3 0. P. 326. 54 LAW OF TORTS. tailed exposition of which would he out of place in this work ; hut the following important points may he noticed : — Rights of proprietors of land with regard to water flowing through or under their lands : 1. Natural streams running above ground, and sub- terranean streams the courses of which are well known and clearly defined. Every riparian proprietor, i.e., every person owning land adjoining a river, is deemed in law to own the soil up to the centre of the river, and if he interferes with it beyond that point he commits a trespass. Every proprietor of such adjoining land has, as a natural right incident to the right to the soil itself, a right to the reasonable use of the water ; what is a reasonable quantity of water depending on the cir- cumstances of each case. In Sandwich v. G. N. JR. {v), the defendant company supplied their engines and station with water from the plaintiff's stream. Plain- trS, a millowner, sued for an injunction and com- pensation. Held, under all the circumstances of the case, as there was no damage caused in wet weather, and the working of the mill was never in any case shortened by more than a few minutes a d,ay, the defendant company was not liable. The above rule is, however, subject to the provision that the adjoin- ing proprietor must not thereby interfere with the {v) (1878), 10 Ch. D. 707. OF "WKONGS TO PROPERTY. 55 use of other proprietors either above or below him — e.g., he must not foul the stream {x), though he may- do so by grant or prescription (y). Every riparian proprietor has the right to have it come to him in its natural state in flow, quantity and quality, and to go from him without obstruction (s). The law as to a subterranean stream, the course of which is well known and clearly defined, as in the case of the river Mole, is the same as laid down above with regard to natural streams flowing above ground («) . 2. Artificial watercourses, as to which the law de- pends upon whether they are of a permanent or tem- porary character, and upon the circumstances under which they were created. If an artificial stream is permanent in its character, a right to the uninter- rupted flow of the water may be acquired by pre- scription or grant against both the originator of the stream, and also against any person over whose land the water flows [h) ; but long enjoyment of an artificial stream will not give a right to the unob- (x) WoodY. Waud (1849), 3 Ex. 748. \y) Einh-yv. Owen (1851), 6 Ex. 353. [z) See judgments in Chasemore v. Richards (1859), 7 H. L. C. 349. (a) Per Pollock, B., in Dudden t. Guardians of Clutton Union (1857), 1 H. & N. 630. {b) SufUffe V. Booth (1863), 32 L. J. Q. B. 136; Holler \. Forr it (1873), L. P.. 10 Ex. 59. 56 LAW OF TORTS. stnioted use of a stream obviously made for temporary purposes, as to drain a miae (c). In Greatrex v. Hay ward {d), plaintiff's land enjoyed for fifty years the benefit of artificial drains made by defendant, a neighbouring farmer, to drain his own lands. It was held that plaintiff could not prevent defendant from deepening the drain for purposes of cultivation, and thereby depriving plaintiff of water enjoyed for fifty years, as the drain was originally made for temporary purposes. "From the judgment in Arkwright v. GeU{e), it will be seen, that the reason why a right to the uninterrupted flow of the water of an artificial stream cannot be acquired by prescription against the origi- nator of the stream, if it is of a temporary character, is, that the temporary nature of the stream precludes a presumption of a grant of a permanent right ; but the case is manifestly different if the stream is per- manent, although artificial, for there can be no reason why a person who makes a permanent watercourse may not make a grant of right in perpetuity to use the water to any person through whose land the stream is made to flow ; and, indeed, nothing is more likely than that an owner of land would stipulate, {c) Arkwright v. Gell (1839), 5 M. & W. 203 ; Wood v. Waui (1849), 3 Ex. 748. ' (d) (1853), 8 Ex. 291. [e] (1839), 5 M. & "W. at p. 227. OF WRONGS TO PROPERTY. 57 when such a watercourse is made, that he shall have the benefit and use of the water as it flows through his land. A presumption of such a grant, therefore, may be readily made, and it will receive the sanction of thelaw"(/). 3. Natural streams running underground in undefined courses and percolating water, the course of which is underground, undefined, and unknown. There is no natural right to the uninterrupted flow of such streams {g), nor can such a right be acquired by prescription, for such a right, " founded upon length of enjoyment, is supposed to have originated in some grant ; but what grant can be presumed in the case of percolating waters depending upon the quantity of rain falling, or the natural moisture of the soil, and in the absence of any visible means of knowing to what extent, if at all, the enjoyment would be afieoted by any water percolating in and out of the defendant's or any other land ? . . . . The pre- sumption of a grant only arises where the person against whom it is to be raised might have pre- vented the exercise of the subject of the presumed grant, but how could a man prevent or stop the per- colation of water ? " {h) . In Chasemore v. Richards («), (/) Goddard on Easements, 5th ed., pp. 324, 325. {g) Acton v. Blundell (1843), 12 M. & W. 324. (A) Per Wightman, J. , in delivering the opinion of the judges to the House of Lords in Chasemore v. Richards (1859), 7 H. L. 0. 370. .(') (1859), 7 H. L. C. 349. 58 LAW OF TOKTS. A.'s mill was worked ty a river, supplied by water produced by the rainfall over a large district. B. sunk a well on his own land, and pumped up water for the supply of Croydon, thereby preventing an enormous quantity of water from ever reaching the river or the mill. Held, A. had no right of action against B. Such a right may, however, be acquired by express grant (A). A landowner, therefore, may collect or dispose of such water, regardless of his neighbour's interests; but— 1. He may not foul it ; for, though he may appro- priate it, until appropriation there is no pro- perty in it; and whilst it percolates every owner through whose land it passes has a right to receive it in its natural condition. In Ballard v. Tomlinson (l), the plaintiff and defendant each possessed a well. The defendant turned sewage into his, whereby the plaintiff's became polluted. Held, by the Court of Appeal, unanimously reversing Pearson, J., in the Court below, that an action was maintainable. 2. He will be restrained from drawing off the subter- ranean water on the adjoining land, if in so doing he draws off water which has once flowed {Jc) Whitehead y. Parks (1868), 2 H. & N. 870. \T) (1885), 29 Ch. D. 115. OF "WRONGS TO PROPERTY. 59 in a defined surface channel. " If you cannot get at the underground water without touching the water in a defined surface channel, you cannot get at it at aR." Per Hatherley, L. 0., in Grand Junction Canal Co. v. Shugar (m) ; thus distinguishing it from Chasemore v. Richards (n), where, likewise, the water in the river was diminished, hut was diminished by preventing the subterranean water from ever reaching it, not (as in The Grand Junction Canal Co. v. Shugar) by drawing water away from the river itself. Every person commits a tort who so uses his own land as to damage his neighbour by depriving him of the subjacent or adjacent support necessary to retain such neighbour's land in its natural and unencumbered state (o). Notice carefully that this right to the support of the subjacent soil or of the adjacent land exists only in favour of land unweighted by buildings, i.e., in favoiir of land in its natural state ; and, further, that no action lies without proof of appreciable damage. In Smith v. Thackerah [p), defendant dug a well, which caused plaintiff's adjacent land to sink, and a (m) (1871), L. K. 6 Gh. App. 488. (n) Supra, pp. 57, 58. (o) backhouse v. Bmomi (1861), 9 H. L. 0. 503 ; Sumphries v. Brogdm (1860), 12 Q. B. 739. (p) (1866), L. E. 1 C. P. 564. 60 LAW OF TORTS. building, erected thereon within twenty years, to fall. It was proved that if the building had not been on plaintiff's land the land would still have sunk, but the damage to plaintiff would have been inappreciable. Held, that no action lay. But the right to support of land weighted by build- ings may be acquired — (1) By grant, which may be — a. Express; or h. Implied, e.g., as in Righy v. Bennett (q), where a man granted part of his land for building. (2) By prescription. The rule laid down in the famous case of Angus v. Bolton (r) is, that a right to lateral support from ad- joining land may be acquired by twenty years' un- interrupted enjoyment for a building proved to have been newly built, or altered so as to increase the lateral pressure, at the beginning of that time ; and that it is so acquired if the enjoyment is peaceable and without deception or concealment, and so open that it must be known that some support is being enjoyed by the building. In Lemaitre v. Bavis (s). Hall, Y.-C, held that the owner of buildings can acquire by prescription, as [q) (1882), 21 Ch. D. 559. {r) (1881), 6 App. Ca. 740. (») (1882), 19 Ch. D. 281. OF WROXfJS TO TEOPERTY. 61 an easement within 2 & 3 Will. 4, c. 71, s. 2, a right to support from the buildings of the adjoining owner. But where buildings are not adjoining, no right of support can be so acquired. In Solomon v. Vintners' Co. {t), three contiguous houses in a street leaned out of the perpendicular for thirty years, A.'s leaning on B.'s, B.'s on C.'s. 0. removed his, and the rest fell. In an action by A., it was held that he had no right to have his house supported by C.'s through the intervening house. The right to support referred to in these different cases is quite independeat of any question of negli- gence. A man is, of course, always responsible to his neighbour for carrying out works on his own land in a negligent and improper way [u). " "Waste is any unauthorized act of a tenant for a freehold estate not of inheritance, or for any lesser interest, which tends to the destruction of the tene- ment or otherwise to the injury of the inherit- ance" (.r). Such injury may be loss of market value, or an alteration throwing doubt on the iden- tification of the property, and thereby impairing the evidence of title («/). {t) (I860), 4 H. & N. 585. («) See Boiver v. Feate (1876), 1 Q. B. D. 321 ; and Hughes v. Fercival (1883), 8 App. Caa. 443, supra, p. 29. (x) Pollock, 5th ed. p. 327. (V) Per Jessel, M. R., in Jones v. Chappell (1875), 20 Eq. 539 ; Meux V. Coilej/, (1892) 2 Cli. 253. 62 LAW OP TORTS. Voluntary waste is where the waste consists in the active doing of something, e.g., pulling down a house. Permissive waste is a mere passive act, e.g., allow- ing a house to go to rack and ruin by reason of non- repair. Legal waste is a term used to describe waste for which there lay a remedy at law, — equitable waste, waste which was only recognized as such and relieved against in equity. If an estate were given to a limited owner without impeachment for waste, at law he could commit what waste he chose, but equity would interfere to prevent his pulling down the mansion-house or cutting ornamental timber; and these acts were called equitable waste. As regards the remedy in this case, the Judicature Act, 1873 (36 & 37 Yict. c. 66), has abolished the distinction. By sect. 25 (3) of that Act, " an estate for life with- out impeachment of waste shall not confer, or be deemed to have conferred, upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the in- strument creating such estate." The general rule is that tenants for life, for years, at will, and at sufferance, are Kable for waste. This is, however, subject to the qualification that, in the absence of an express covenant or an obliga- OF WRONGS TO PROPERTY. 63 tion not to commit waste imposed by the instru- ment creating the estate (s), neither a tenant for life (a), nor a tenant at ■will {b), is liable for permis- sive waste (c) . A tenant in fee simple, of course, is not liable for waste ; nor is a tenant in tail, because he can at any- time bar the entail, and make himself tenant in fee simple ; but a tenant in tail, after possibility of issue extinct, is liable for equitable waste, inasmuch as he cannot bar the entail. Nuisance is " the wrong done to a man by unlaw- fully disturbing him in the enjoyment of his pro- perty, or in some cases in the exercise of a common right " (d) ; it is either — 1. Public, i.e., an act affecting the public at large, or some considerable portion of them. Eemedy — indictment or information. (z) Woodhouse v. Walker (1880), 6 Q. B. D. 504. (a) Fowys v. Blagrave (1854), 4 De G. M. & Q-. 448 ; Barnes v. Dowling (1881), 44 L. T. N. S. 809; In re Cartwright, Avis v. Newman (1889), 41 Ch. D. 532. (i) Gibson v. Wells (1805), 1 B. & P. N. K 290 ; 8 E. R. 801 ; Sarnett v. Maitland (1847), 16 M. & W. 257. (c) On the other hand, in Davies v. Davies (1888), it was held by Kekewich, J., that a tenant for years is liable for permissive waste, but it may be respectfully doubted whether this decision would be upheld in a higher Court. See Barnes v. Dowling, supra; and the observations of Kay, J., in In re Cartwright, Avis v. Newman (1889), 41 Ch. D. at p. 535. {d) Pollock, 5th ed. p. 374. 64 LAW OF TORTS. 2. Private, i. e., an act affecting some particular individual or individuals, as distinguished from the public at large. Eemedy — action for damages or an injunction, or both ; also abatement, i. e., removal of the nuisance by the party injured, which removal must be (1) peaceable ; (2) without danger to life or limb ; and (3) (if it is necessary to enter another's land to abate the nuisance, or where the nuisance is a dwelling-house in actual occupation on a common (e),) after notice to remove the same, unless it is unsafe to wait. These three remedies are confined to private nuisances, but in one case they are applicable to public nuisances, namely, where the act complained of more prejudi- cially and injuriously affects some particular individual or individuals than the public at large. In Soltau v. Be Held (/),, plaintiff resided in a house next to a Roman Catholic chapel, of which defendant was priest. The chapel bell was rung at all hours, day and night . Though the ringing was a public nipance, it was held, on the above ground, that plaintiff was entitled to an injunction. (e) Perry t. mtz%owe (1845), 8 Q. B. 757 ; 15 L. J. Q. B. 239. (/) (1851), 2 Sim. N. S. 311. OF WKONGS TO PROPERTY. 65 Nuisances are also — 1. Those causing damage to property, for which substantial compensation can always be obtained. In Si. Helens Smelting Co. v. Tipping [g), the fumes from the company's works killed the plaiutiff's shrubs. Held, sufficient cause of action for nuisance against company. 2. Those causing personal discomfort. It is ne- cessary to show material and continuous interference with " the physical comfort of human existence," according to an ordinary reasonable standard ; thus it was held in a recent case that temporary annoyance caused by the execution of lawful works does not amount to a nuisance (li). Where a nuisance is caused by the non-repair of premises, the occupier of such premises is prima facie liable {i) ; but the landlord is liable (1) if he has authorized the continuance of the nuisance (and it seems that merely letting the premises in a ruinous condition does not constitute such an authorization) {k), or (2) if by the terms of the {g) (1865), 11 H. L. C. 650. {h) Sarrison v. Southwark and Vauxhall Water Co., (1891) 2 Ch. 409. (i) Tarry v. Ashton (1876), 1 Q. B. D. 314. {h) Fretty v. Bickmore (1873), L. E. 8 C. P. 401 ; Gtvinnell v. Earner (1875), 10 C. P. 658. F. 5 66 LAW OF TORTS. lease he is bound to repair (I), but not other- wise (m). It is no defence to an indictment for nuisance to show that the act complained of is in some other way- beneficial to the public. Thus, before tramways were authorized by statute, Beg. v. Train (») decided that to lay down a tramway in a public street, thereby obstructing the ordinary traffic, was an indictable nuisance at common law, though the number of persons using the tram cars, and so saving time and money, was much greater in number than those who were obstructed. • It is no defence that plaintiff himself came to the nuisance (o), or that the trade or business causing annoyance is otherwise harmless, or even in itseK necessary and praiseworthy. Thus, as was said in Jones -V. Powell [p), "a tan-house is necessary, for all men wear shoes ; nevertheless it may be pulled down if it be erected to the nuisance of another. In like manner of a glass-house ; and they ought to be •erected in places convenient for them." Beware of the misleading phrase, " rights to light and air." Right to light is one thing ; right to air is m ToM^. Flight (1860), 9 C. B. N. S. 377. [m) See Fretty v. Bickmore, and GwinneU y. Earner, supra ; also NeUon v. Ziverpool Brewery Co. (1877), 2 C. P. D. 311. (») (1862), 2 B. & S. 640. (o) St. Helens Smelting Co. v. Tipping, supra, p. 65. Ip) (1628), Palm, at p. 639. OF WRONGS TO PROPERTY. 67 another. There is no such right known to the law as the specific right to the access of air over a neigh- bour's land. In Webb v. Bird {q) , it was held that the owner of a windmill cannot, under sect. 2 of the Prescription Act (2 & 3 Will. 4, c. 71), prevent the owner of adjoining land from building so as to in- terrupt the passage of air to the mill, though the mill has been worked by this air for over twenty years. In Bryant v. Lefevre (r), it was held that the access of air to chimneys cannot, as against the occu- pier of neighbouring land, be claimed (1) as a natural right of property, or (2) as an easement, by prescrip- tion from the time of legal memory, or (3) by a lost grant, or (4) under the Prescription Act, 1832. See also Sarris v. Be Pinna (s). An action, however, lies where the stoppage of air is injurious to health [t). Eight to light is not a natural right incident to the ownership of windows, but an, easement, to which title must be shown — 1. By grant, express or implied, e.g., where, as in Palmer v. Fletcher (ti), a man grants a house in which there are windows, neither (g) (1862), Ex. Ch. 13 C. B. N. S. 841. (r) (1879), i 0. P. D. 172. (s) (1886), 54 L. T. N. S. 38. (t) City of London Brewery Co. v. Tennant (1873), L. R. 9 Ch. App. 221. [u] (1664), 1 Sid. 167, 207. 6(2) 68 LAW OF TOKTS. he nor anyone claiming under him can stop up the windows or destroy the lights ; or 2. By prescription at common law ; or 3. By prescription under the Prescription Act (2 & 3 WiU. 4, c. 71, s. 3), by which twenty years' use, unless by written con- sent, gives the right. By sect. 4 nothing is to be deemed an interruption unless sub- mitted to for a year after notice. Therefore, in Flight \. Thomas («), where there had been an enjoyment for nineteen years and 330 days, followed by an interruption of thirty- five days just before action, it was held that such an enjoyment was sufficient to establish the right. An owner of ancient lights is entitled not only to sufficient light for his present business, but to aU the light enjoyed previously to the interruption sought to be restrained ; i.e., to succeed, defendants must show that for whatever purpose plaintiffs might wish to employ the light, there would be no material inter- ference with it. In Tates v. Jack [y], a merchant's warehouse had its lights blocked by a building oppo- site, and the defendant's plea, that enough light was still left for his business purposes, was held bad. If a person opens new lights, these may be ob- [x) (1840), 11 A. &E. 688. \y) (1866), L. E. 1 Ch. 295. OF WRONGS TO PROPERTY. 69 struoted with impunity ; but an existing right to light is not lost by interruption which is not con- tinuous in time and quantity (s), or by a subsequent intermission of enjoyment not amounting to inten- tional abandonment, or by enlarging, rebuilding, or altering the window for which access of light is ■claimed (a), so long as the ancient lights, or a mate- Tial part thereof, remain substantially capable of continuous enjoyment. It is not necessary that the structural identity of the old windows be preserved {e.g., a house may be pulled down and rebuilt (5)), but the plaintiff must give evidence as to the posi- iion of the ancient lights (c). B. Of Wrongs to Personal Property, Trespass to goods is the wrongful meddling by a person with the goods of another, either by removing them, or by otherwise dealing with them. Conversion is the removal of goods from the pos- session of another with the design of depriving that other of them, or of exercising some dominion or con- trol over them for his own benefit, or the benefit of some third person. (z) FresUnd v. Bingham (1889), 41 Ch. D. 268. (a) Tapling v. Jones (1865), 11 H. L. C. 290 ; Eodesiastical Com- missioners V. Kino (1880), 14 Oh. D. 213; Greenwood v. Sorrney (1886), 33 Ch. D. 471. (5) Scott V. JPape (1886), 31 Ch. D. 554. {c) Fowlers v. Walker (1882), 51 L. J. Ch. 443. 70 LAW OF TOKTS. It is important to notice the fundamental distinction between these two Avrongs. Trespass is essentially a wrong to the actual possessor, and therefore cannot be committed by a person in possession [d) ; conver- sion, on the other hand, is a wrong to the person entitled to immediate possession. The actual pos- sessor is frequently, but not always, the person entitled to immediate possession, so that conversion may, but does not necessarily, include trespass. An action for trespass lies against A. by B. when A. takes goods from the possession of B. This is so even though B. is not the true owner ; provided B.'s possession is (1) either actual or constructive (e), and (2) rightful as regards A. In other words, bare possession is generally a sufficient title as against a wrongdoer. In Armory v. Delamirie (/), a chimney- sweep found a jewel. He inquired its value of a jeweller, who, under a pretence of weighing it, took out the stone and then offered him three halfpence for it, and on the offer being declined refused to give it up. Held (1) the finder has a property against all but the true owner ; (2) on non-production, the {d) Johnson t. Diprose, (1893) 1 Q. B. 612. («) See p. 42, supra. if) (1722), 1 Sm. L. C. lOth ed. 343. See also Bridges v. SawTeesworth (1851), 21 L. J. Q. B. 75 ; and South Staffordshire Water Co. v. Sharman, (1896) 2 Q. B. 44 ; and the discussion of these oases in Clerk and Lindsell on Torts, 2nd ed. p. 686 a. OF WKONGS TO PROPERTY. 71 jewels must he considered to be of the finest water, for omnia prcesumuntur contra spoliatorem. In the case of conversion, " the grievance is, the imauthorized assumption of the powers of the true owner " [g). It is conversion none the less, though the wrongdoer only deals with the goods as owner for a very short time, and for a very limited purpose. It is no excuse that the defendant was acting under a mistaken, although an honest, and even reasonable, supposition of being lawfully entitled. Refusal to deliver on demand is evidence, but evidence only, of conversion, as there are cases {e.g., the case of a servant in possession) where delay is justifiable. Is a person liable for conversion if he bona fide deals with goods at the request of the apparent owner ? He is not liable if he deals with {contra, if he as- sumes to dispose of) goods as the servant or agent of an apparent owner in actual possession (or under a contract with such apparent owner) according to the apparent owner's direction ; provided (1) the act done (or the contract) does not purport to involve a transfer of the supposed property in the goods, and (2) the ostensible owner's direction is one which he could lawfully give if he were the true owner, and (3) which is obeyed in the honest belief that he is {li). See Hol- (•) JHex V. Abingdon (1794), 1 Esp. 226; 5 R. E. 733; Rex v. (1813), 1 M. & S. 273 ; U E, E. 427: 108 LAW OF TOUTS. At common law, even if the whole House ordered the puhlioation of parliamentary reports and papers, no privilege attached. Then came the famous case of Stockdale v. Hansard (s), which was followed by the statute 3 & 4 Yict. c. 9. By this statute, all reports, &c., published by order of either House of Parliament are absolutely privileged, and all pro-- ceedings, civil or criminal, are to be stayed at once on production of a certificate to that effect. Reports of parliamentary proceedings, other than those protected by this statute, are conditionally, not absolutely, privileged {t). 2. Judicial proceedings. — No action lies for de- famatory statements made or sworn in the course of a judicial proceeding before any court of competent jurisdiction. "The authorities establish beyond all question this : that neither party, witness, counsel, jmy, nor judge, can be put to answer civilly or criminally for words spoken in office ; that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties for words written or spoken in the course of any proceeding before any court recognized by law, and this though the words written or spoken were, written or spoken maliciously without any justifica- (.«) (1837), 7,0. & P. 731. (<) See pp. 123; 124, infra. . OF LIBEI, AND SLANDER. 109 tion or excuse, and from personal ill-will and anger against the person defamed " (»)• " The ground of that rule is public policy " {x) . ' Thus, every statement made by either party to his solicitor or counsel (y), and all pleadings (z) and affidavits (a) are absolutely privileged. Similarly, every statement made by an advocate whilst acting in that capacity, whether counsel or solicitor (5), or the party in person (c), is absolutely privileged, no matter how false or malicious or irrelevant to the matter in issue the words com- plained of may have been (d) . With regard to witnesses, jurors, and judges of inferior courts, the rule laid down above requires qualification. Every statement made by a witness in the box is absolutely privileged, provided that it refers to the inquiry before the court, and this is so even if the statement in question is volunteered (e) ; but no privilege would attach to the statements of a witness wholly unconnected with the matter in issue, and (m) Per Lopes, L. J., in. Soj/al Aquarium, fc. Co. v. Farkinson, (1892) 1 Q. B. at p. 451. {x) Per Lord Esher, M. R., ibid., at p. 442. (y) Bank of British North America v. Strong (1876), 1 App. Cas. 307. (s) Lord Beauchamps t. Sir R. Croft (1568), Dyer, 285 a. {a) Zilley v. Eoney (1892), 8 Times L. R. 642. lb) Munsterv. Lamb (1883), 11 Q. B. D. 588. {c) Sodgson v. Scarlett (1818), 1 B. & Aid. 244 ; 19 E. E. 301. [d) MunsterY. Lamb (1883), 11 Q. B. D. 588. [e] Seaman v. Netherclift (1876), 2 C. P. D. 63. no LAW OF TORTS. made entirely on his own account and to serve his own ends, or to statements made before entering or after leaving the box (/). So, too, every observa- tion of a juror is absolutely privileged if connected with the matter in issue (g). As regards words spoken by a judge, the general rule laid down above is true only of the judges of the superior courts {h). Every statement made in office by a judge of the superior court is absolutely privi- leged, and under no circumstances will an action lie therefor («). A similar privilege is extended to words spoken in office by the judge of an inferior court of record, provided that he has jurisdiction in the matter before him. If he knows, or ought to know, that he has no jurisdiction, he is in no way protected (Ic) . No privilege attaches to words spoken out of office (l). Everything said in office by a justice of the peace is also privileged, and no action lies therefor, unless the words complained of are wholly unconnected with the matter in issue, and are spoken maliciously and without reasonable and probable cause (m). .{/) Trotman v. Dunn (1815), 4 Camp.. 211. (Sf) Rex V. Skinner (1772), Lofit, 55. (A) For definition of superior court, see pp. 10, 11, supra. (i) Andersons. (?ome, (1895) 1 Q. B. 668. \V) Soulden t. &»«/» (1850), 19 L. J. Q. B. 70. (J) Faris V. Levy (1861), 30 L. J. C. P. 12. \m) Kirby v. Simpson (1854), 10 Ex. 358 ; Gelen v. Sail (1837), 2 H. & N. 379. OF LIBEL AND SLANDEK. Ill It is, however, important to notice that this privi- lege is confined to statements made in the course of strictly judicial proceedings, and is one vrhich will not be extended. " It belongs to courts recognized by law, and to such courts only " (w). A meeting of the London County Council for granting music and dancing licences is not such a court, and, therefore, defamatory statements made by a county councillor at such a meeting with regard to a person applying for a licence are not absolutely protected, but have only a qualified privilege, which may be rebutted by proof of express malice (o). Reports of judicial proceedings are not absolutely, only conditionally, privileged {p). There is a pos- sible exception to this in the case of such reports published in a newspaper, and which fall within the protection of sect. 3 of the Law of Libel Amendment Act, 1888. The point has never yet arisen; but it is submitted that such reports are absolutely privileged {q). 3. Naval, military, and State proceedings. — Every- (k) Per Lopes, L. J., in Moyal Aquarium, ^-c. Co. v. JPaH (1892) 1 Q. B. atp. 451. (o) Royal Aquarium, S;e. Co. v. Parhinson, (1892) 1 Q. B. 431. (p) See pp. 112-113, 121—122, infra. [q) For the arguments in support of tMs contention, see the Author's " Principles and Practice of the Law of Libel and Slander," 2nd ed. p. 108, William Clowes & Sons, Limited, London, 1897. 112 LAW OF TOKTS. thing done in the course of any naval or military proceeding is absolutely privileged. Thus, any de- famatory statement made before a naval or military court-martial, no matter how untrue and malicious, is protected {r). Similarly, no action lies in respect of such a statement in a report made in the course of military or naval duty (s). For reasons of public policy the same protection would, no doubt, be given to anything in the nature of an act of State, e. ^., to every communication relating to State matters made by one minister to another or to the Crown (t) . B. The following are the cases of qualified privi- lege, in which proof of malice enables plaintiff to succeed : — 1. " When the circumstances are such as to cast on the defendant the duty of making the communication to a third party" {ii). 2. " When the defendant has an interest in making (r) Dawkins v. Lord Eokehy (1875), L. R. 7 H. L. 744 ; 45 L. J. Q. B. 8, Cockbnm, C. J., dissentiente. (s) Dawkins t. Lord Paulet (1869), L. R. 5 Q. B. 94 ; 39 L. J. Q. B. 53. [t] This passage, -whioli appears in the Author's " Principles and Practice of the Law of Libel and Slander," 2nd ed. p. 106, ■was cited with approval by Lord Esher, M. R., and Kay, L. J., in Chatterton t. Secretary of State for India in Ootmcil, (1895) 2 Q. B. at pp. 191, 194. (m) Per Lopes, L. J., In Pullman v. Sill f Co., (1891) 1 Q. B. at p. 530. OF LIBEL AND SLANDER. 113 ■ the communication to the third person, and the third person has a corresponding interest in receiving it" (u). 3. Fair and impartial reports of proceedings — (a) in Parliament; or (b) in any court of justice; or (c) in any public meeting, or meeting of certain public bodies and persons specified in sect. 4 of the Law of Libel Amendment Act, 1888. " The question whether the occasion is privileged, if the facts are not in dispute, is a question of law only, for the judge, not for the jury. If there are questions of fact in dispute upon which this question depends, they must be left to the juiy, but, when the- jury have found the facts, it is for the judge to say whether they constitute a privileged occasion" (x). Further, it must be remembered, " as was pointed out by Lindley, L. J., in Stuart v. Bell {y), the question whether the occasion is privileged does not depend upon the defendant's belief that it is so " {%).- 1. Duty. — (a) Communications made in pursuance of a duty owed to society. — " The rule is this, that where («) Per Lopes, L. J., in FuUman t. Sill # Co., (1891) 1 Q. B. at p. 530. {x) Per Lord Esher, M. R., in Hehditch v. Mcllwaine, (1894) 2 Q. B. at p. 58. (y) (1891) 2 Q. B. 341. (s) Per A. L. Smitli, L. J., in Sebditch v. Mcllwaine, (1894) 2 Q. B. at p. 63. r. 8 114 ' LAW OF TORTS. the circumstances are such as to cast on the defendant the duty of making the communication to a third party, the occasion is privileged" {a). "The duty may he legal, social, or moral " {b). "Where," says Blackhum, J. (c), " a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then, if he bona fide and without maUce does tell them, it is a privileged communication." Thus, where a person answers an inquiry bona fide and without malice, the answer is a privileged communication, and this is true of every answer to a confidential inquiry ; for in the language of Grove, J., in Rolshaw v. Smith (d), " everyone owes it as a duty to his fellow men to state what he knows about a person when inquiry is made," and everything pertinent to the subject of the inquiry which subsequently passes between the parties is also iDrivileged (e). " The belief of the defendant that there was a duty to make the communication is irrelevant to the question whether the occasion is privileged " (/). [a) Per Lopes, L. J., in Pullman v. Sill ^ Co., (1891) 1 Q. B. at p. 530. (4) Per Lopes, L. J., in Stuart v. Bell, (1891) 2 Q. B. at p. 353. (c) Bavies v. Snead (1870), L. E. 5 Q. B. 611. [d) (1878) 38 L. T. 43. («) Beatson v. Skene (1860), 29 L. J. Ex. 430. (/) Per Lord Esher, H. -R., in Behditch v. Mcllwaine, (1894) 2 Q. B. at p. 103. OF LIBEL AND SLANDER. 115 Even if volunteered, the communication may fall within the protection of the general rule laid down above ; for " it is not necessary in all cases that the information should be given in answer to an inquiry" (g'), though under such circumstances it will, of course, be more difficult for the defendant to satisfy a jury that in making the communication he was not actuated by malice {h). Under this head of privilege come communications as to the characters of clerks and servants. No one is obliged to give his clerk or servant a character (»') ; but if he does so he must do it honestly, and then, even if it be in fact untrue, the master will be pro- tected [h). If a master after giving a servant a character discovers facts unfavourable to him, and communicates these to the person to whom he had previously given such character, such communication is privileged (l) ; and if a master discharges one of his servants and tells the others why he has done so, such communication will also be privileged (m) . Thus, ig) Per Jessel, M. B., in Waller t. Loeh (1881), 7 Q. B. D. at p. 621. [h) Per Littledale, J., in Fattism y. Jones (1828), 8 B. & C. at p. 586. (») Carrol Y. Bird (1800), 3 Esp. 201 ; 6 E. E. 824. [k) Sogers t. Clifton (1803), 3 B. & P. 587 ; Murdoch y. Fmduh- Uan (1886), 2 Times L. R. 614. (Z) Gardner y. Slade (1849), 18 L. J. Q. B. 334. (m) Somerville v. SawMns (1850), 10 0. B. 590 ; 20 L. J. C. P, 131. 8(2) 116 iAW OF TORTS.. where the plaintiff was a guard in the service of the defendants, a railway company, and the defendants dismissed him on the ground that he had been guilty of gross neglect of duty and published his name in a printed monthly circular addressed to their servants, stating in it that he had been dismissed, and the ground of his dismissal, it was held that such circular was privileged if published bond fide and without malice towards the plaintiff («). A similar protection is extended to all communica- tions, made honafide and on reasonable grounds, to a father respecting his child (o), or to a master as to his servant (jp) ; by one friend to another as, to a doctor {q), or tradesman (r), or an intending suitor (s) ; by a servant to his master [f) ; by an undermaster to the headmaster (u) ; by an official in the army or navy or any government office to his superior {x) ; by a master concerning his servant or a child entrusted to his charge, to the parent or guardian of such ser- [n) Hunt V. G. N. Sy. Co., (1891) 1 Q. B. 189. (o) Per Erie, C. J., WhiteUy v. Adams (1863), 33 L. J. C. P. at p. 95. (it)) Masters v. Burgess (1887), 3 Times L. R. 96. {q) Dixon v.. Smith (1860), 29 L. J. Ex. 125. (r) iStorey t. Challands (1837), 8 C. & P. 234. (s) 15 0. B. N. S. 410, 411. (t) Scarl T. Dixon (1864), 4 E. & F. 250. . (») Hume T. Marshall (1878), 42 J. P.. 136. (x) Stace V. Griffith (1869), L. B. 2 P. 0. 420. OF LIBEL AND SLANDER. 117 vant or eMd (y) ; and ty a solicitor to Ms client (z), even though he is not at the time engaged in the conduct of any legal proceedings on his behalf (a) . So, too, "if a communication made by a solicitor to a third party {e.g., his clerk) is reasonably neces- sary and usual in the discharge of his duty to his client and in the interest of .his client, the occasion is privileged" ip). In all the above cases it must, however, be remem- bered that the privilege does not extend to expres- sions "wholly unwarranted by the circumstances of the case (c), nor to unnecessary publication {d). On the other hand, the fact that there were other persons present than those to whom the defendant was under a duty to make the statement in ques- tion will not necessarily destroy the privilege. If their presence was accidental or could not be prevented by the defendant, the privilege will not be lost. Thus, in Pittard v. Oliver (e), it was held that the privilege which would have attached to defama- («/) Fowler and Wife v. Somer (1812), 3 Camp. 294; 13 R. E. 807. (z) Wright v. Woodgate (1835), 2 0. M. & E. 573. (a) Bmis v. Beeves (1855), 5 I. R. 0. L. 79. (J) Per Lopes, J., ia Boxsius v. Goblet Freres, (1894) 1 Q. B. at p. 846. (c) Warren v. Warren (1834), 1 C. M. & B. 251. \d) Browne v. Croome (1817), 2 Stark. 292 ; 19 E. E. 727. [e) (1891) 1 Q. B. 474. ■ 118 LAW OF TOKTS. tory statements made at a meeting of a board o£ guardians, of which the defendant was a member, was not destroyed by the presence of reporters. "Was the defendant's duty to the guardians and to the ratepayers generally taken away by the presence of these other persons who were not called in by him, and over whose presence he could exercise no control ? the question answers itself ; the presence of these persons left his duty to discuss the matters untouched ; the occasion was privileged for the per- formance of that duty, and the privilege was not taken away by the presence of such people under such circumstances" (/). (b) Communications made in self-defence. — Thus, if the plaintiff has previously attacked the defendant, any statement made by the latter which is necessary in order to protect himself, and which is in any way relevant to the accusations made against him by the plaintiff is privileged ; e.g., where the policy-holder of an insurance company published a pamphlet charging the directors with fraud, and the directors published a pamphlet in reply defending themselves, and accusing the plaintiff of making false and calumnious accusations, and further stating that he had upon a certain occasion made statements on oath in direct contradiction of statements which he (/) Per Lord Esher, M. K., in Pittard v. Oliver, (1891) 1 Q. B. at p. 478. OF LIBEL AND SLANDER. 119 had previously made in writing, it was left to the jury to say whether the counter-charges made by the defendants were made bona fide, and whether they went heyond the occasion, and the jury found for the defendants {g). So, too, where the plaintiff has previously attacked the defendant in the news- papers ill), or in pubho («'), and the latter retaliates by publishing in the papers in self-defence a state- ment of the case from his point of view, and in so doing makes defamatory statements concerning the plaiutiff, such statement is privileged if made hondL fide. The privilege may be lost if the extent of publica- tion is excessive — e.g., in a matter of purely local or private importance it cannot be necessary to write to the Times, or to advertise. In such a case, the extent given to the announcement is evidence of malice to go to the jury {k). 2. Interest. " If the communication was of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those (g) Koenig v. Mitchie (1862), 3 F. & F. 413 ; R. v. VeUy (1865), 4F. &F. 1117. (A) Cowardy. Wellington (1836), 7 C. & P. 531. (i) Lauphton v. Bishop of Sodor and Man (1872), L. R. 4 P. C. 495. (Tc) Capital and Counties Banh Y.JSenty (1882), 7 App. Gas. 741. 120 LAW OF TORTS. to whom it was made had a corresponding interest in having it made to them, — when those two things co-exist, the occasion is a privileged one " (/) . This common interest may be in respect of family affairs^ e.g., communications made bona fide to a lady by her son-in-law, as to the character of her intended hus- band (w), or it may be in respect of money matters — e.g., a letter written by a ratepayer ailecting the character of the parish constable, to be read at a parish meeting at which the accounts of the parish were to be considered (w), or in respect of a particular profession or calling — e.g., anything said by a life ■governor of a school to its steward concerning one of the tradesmen employed to supply the school (o), or in respect of any right or duty recognized by the law — e.g., a letter written by a creditor who had been appointed trustee in liquidation of a debtor's estate to another creditor [p), or by a. solicitor writing on behalf of his client, and in the ordinary course of his duty to a third party (g) . But in all these cases the privilege will be lost if (;) Per Lord Esher, M. E., in Bunt v. G. N. Sij. Co., (1891) 2Q. B. at p. 191. (m) Todd^.-SawUns (1837), 8 0. ,&; P. ,88. («) Spencer -v. Amerton (1835), 1 Moo. & R. 470.- (o) Sumphreys. v. Stilwell (1862), 2 F. & F. 590. \p) Spill V. Maule (1869), L. E. 4 :Ex. 232 ; 38 L. J. Ex. 138. [q] Quartz Sill Gold Mining Co. v. Beall (1882), 20 Ch. D. 509 ; Baker v. Carriek, (1894) 1 Q. B. 838. OF LIBEL ASD SLANDER. 121 the statement is made to an nnnecessarily large number of persons (r), or contains exaggerated and unwarrantable expressions (s), or extends to matters outside those in which the plaintiff and defendant have a common interest {t). 3. Fair reports of proceedings (A) in courts of justice ; (B) in Parliament ; (C) in public meetings. (A) Eeports of proceedings in courts of justice, in order to be privileged must be — a. Bona fide, accurate, and impartial : i.e., " substantially a fair account of what took place " {u) in court. It is immaterial by whom the report was published. In the words of Brett, L. J., the privilege is the same " for a private individual as for a public newspaper" (x). " There is no special privilege for news- papers" (y). Formerly, reports of ew parte proceedings were not privileged. Currie v. Walter (s) (r) Bmcomie v. Baniell (1837), 8 C. & P. 222. (s) Bromage v. Frosser (1823), 4 B. & G. 247 ; 28 B. R. 241. {t) Warren v. Warren (1834), 1 C. M. &R. 250. (m) Per Lord Campbell, C. J., ia Andrews y. Chapman (1853), 3 0. & K. at p. 289. (x) Milissich V. Lloj/ds (1877), 46 L. J. C. P. 404. .(«/) Per Day, J., in Mumney v. Walter, (1892) 8 Times L. R. at p. 262. {£) (1796), 1 B. & P. 525 ; 4 R. E. 717. 122 LAW OF TORTS. and Lewis v. Levt/ (a) decided that sucli reports are privileged if the ex parte pro- ceedings result in the discharge by the magistrate of the party charged; it must now, however, be considered settled by JJsill V. Hales (b) and Kimher v. The Press Asso- ciation (c) that all reports of ex parte pro- ceedings are privileged. In the former case an action was brought against the pro- prietors of the Daily Netvs, the Standard, and the Morning Advertiser for publishing a report of an ex parte application by three engineers to a magistrate for criminal pro- cess against the plaintiff, stating that the plaintiff had employed, but not fully paid, them. It was held that such report of ex parte proceedings was privileged, as being fair and accurate. b. Not prohibited by order of the court : c. Not blasphemous, seditious, nor immoral : In all the above cases, even if the report be true and correct, yet it will not be pri- vileged if plaintiff proves that defendant, who sent the report to the newspaper, was actuated by malice {d). (a) (1858), 27 L. J. Q. B. {d) Stevens v. Sampson (1879), 287. 5 Ex. D. 63. As to a possible (i) (1878), 3 C. P. D. 319. exception to tMs rule, seep. Ill, (c) (1893) 1 Q. B. 65 (C. A.). sitpra.. OF LIBEL AND SLANDER. 123 Where judicial proceedings last more than one day, and publication is not expressly forbidden by the court, a report published daily is privileged, if fair and accurate, but no comment is allowed until the proceed- ings terminate (e) . (B) Reports of Parliamentary proceedings. Every fair and accurate report of any proceeding in either House of Parliament, or in any committee thereof, is privileged. The analogy between such reports and those of legal proceedings is complete. What- ever would deprive a report of a trial of immunity will equally deprive a report of Parliamentary proceedings of all privilege. The above rule was for a long time doubtful; it is now clearly and satisfac- tority settled by Wason v. Walter (/), in which case the plaintiff sued the proprietor of the Times for publishing a report of a debate in the House of Lords commenting severely on plaintiff's conduct in procuring the presentation of a petition to the House of Lords, which charged a high judicial ofScer with misconduct ; _ and it was held that the report was privileged. (e) Lewis v. levy (1858), 27 L. J. Q. B. 287. (/) (1868), 4 Q. B. D. 73. 124 • LAW OF TORTS. ' The privilege attaching to fair and accu- rate reports may, of course, he rebutted by proof of actual malice. In these cases there are two distinct questions for the jury — 1. Is the report fair and accurate ? If so, it is prima facie privileged ; if not, verdict for plaintiff. If this question is answered in the affirma- tive, 2. Was the report, though fair and accu- rate, published maliciously ? (C) By the Law of Libel Amendment Act, 1888, s. 4, 2{, fair and accurate report in a newspaper of the pro- ceedings of a public meeting, or of any meeting of a vestry, town council, school board, or other public bodies and persons specified in such Act, is privileged, provided that — (1) Such report is fair and accurate ; (2) The matter complained of is not blasphemous or indecent ; and (3) The matter complained of is of public concern, or the publication thereof is for the public benefit. This privilege may be rebutted by proof (1) that the report was published or made maliciously ; or (2) that the defendant has, after request, refused or neglected to insert in his newspaper a reaspna,ble letter OF LIBEL AKD SLANDER. 125' or statement by way of contradiction or explanation of such report (g). Unless, therefore, a report is — (a) Of proceedings in a court of justice ; or (b) Of parliamentary proceedings ; or (c) Within the protection of sect. 4 of the Law of Libel Amendment Act, 1888, it is no defence to plead that the report is a true, cor- rect, and faithful report of what actually took place. The defendant must rely on — (1) The matter published being strictly true, and (if defendant in criminal case) for the public benefit ; or (2) The words used being a fair and bond fide com- ment on a matter of public interest. IV. Apology. This statutory defence is only available in an action for a libel contained in a public newspaper or other periodical publication {h) ; and the defendant must prove (1) that the libel was published without actual malice and without gross negligence; and (2) that before the commencement of the action, or at the earliest opportunity afterwards, he inserted in such {g) For further information on this subject, see the Author on "Principles and Practice of the Law of Libel and Slander," 2nd ed. pp. 121 — 131 : William Clowes & Sons, Limited, London, 1897. [h) 6 & 7 Vict. c. 96 (Lord Campbell's Act), s. 2. 126 LAW OF TORTS. newspaper or publication a full apology for such libel. Moreover, there must be a payment of money into court by way of amends at the time the plea is filed («), and therefore, having regard to Ord. XXII., Eule 1, no other defence denying liability can be pleaded together with such plea. Injunctions. — The court has jurisdiction in an action of libel or slander to restrain by injunction either before or at the trial any further publication of such libel or slander (k), but in the former case the jurisdiction will be exercised with great caution (l). In order to obtain an interim injunction the plaintiff must prove that the words complained of are un- true (m), and that, therefore, any subsequent publica- tion by the defendant would be mala fide (n), and, further, that unless at once restrained such state- ments will cause immediate (o) and irreparable {p) injury to person or property. Where, however, the words complained of affect the plaintiff in the way of (i) 8 & 9 Viot. c. 75, s. 2. [k) Saxhy v. Easterbrook (1878), 3 C. P. D. 339. {1} Quartz Sill Gold Mining Co. t. Beall (1881), 20 Ch. D. 501. (m) Burnett v. Tak (1882), 45 L. T. 743. {») JSaUey v. Brotherhood (1881), 19 Ch. D. 336. (o) Salamon v. Knight, (1891) 2 Ch. 294. [p) Mogul Steamship Co. v. McGregor, Gov) f Co. (1885), 15 Q. B. D. 467. OF LIBEL AND SLANDEE. 127 Ms business, it seems that irreparable injury will be presumed (q) . There have lately been several important cases on this branch of the law, and " in a judgment of the present Master of the EoUs which underlies every subsequent decision on the subject" (?■), the rule of practice is thus stated : " To justify the court in granting an interim injunction, it must come to a decision upon the question of libel or no hbel before the jury decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases where any jury would say that the matter complained of was libellous, and where if the jury did not so find, the court would set aside the verdict as unreasonable. The court must also be satisfied that in all probability the alleged libel was untrue, and, if written on a privileged occasion, that there was malice on the part of the defendant. It followed from those three rules that the court could only on the rarest occasions exercise the jurisdiction" (s). Thus, in Collar d v. (g) Thomas t. Williams (1880), 14 Ch. D. 864. (r) Per Lopes, L. J., in Monson v. Tussauds, Limited, (1894) 1 Q. B. at p. 693. (s) Per Lord Ester, M. R., in Coulson v. CouUon (1887), 3 Times L. E, at p. 846 ; approved and in part adopted by the full Court of Appeal in Bonnard v. Ferryman, (1891) 2 Ch. at p. 284 ; and, again, per Lopes, L. J., and Davey, L. J., ia Monson v. TussaUds, limited, (1894) 1 Q. B. at pp. 693, 696, 697. 128- LAW OF TORTS. Marshall it) an interlocutory injunction was granted to restrain the defendant, who was the secretary of a trade union, from publishing a placard statiag that there was a strike now on at the plaintiff's works ; that the sweating system was practised, and the polishing badly done there — these statements being held to be untrue, and the defendant not suggesting that he could produce further evidence in support of them. The court has also a general jurisdiction to restrain by injunction the publication of any matter which tends to prejudice the administration of justice, pro- vided that application for such relief is made without delay. Thus the publication of any comments on a pending trial will be restrained, whether such com- ments amount to a libel (m) or not {x). Slander of title. — Strictly speaking, this wrong has no place in a chapter on libel and slander, but for the sake of convenience it seems desirable to deal shortly with the subject. Slander of title con- sists of a false, malicious statement in writing, print- ing, or by word of mouth injurious to any person's title to property, and causing special damage to such person. For the publication of such statement an (0 (1892) 8 Times L. E. 846. (m) Coleman v. West Sartlepool Sarbour, fc. Oo. (1860), 8 W. E. {x) Mackett v. Commissioners of Seme Bay (1876), 24 W. E. 845. OF LIBEL AND SLANDER. 129 action will lie. In such a case there is no wrong to the reputation — no defamation — and the action is not for Ubel or slander, but " an action on the case for special damage sustained by reason of the speak- ing or publication of the slander of the plaintiff's title" (y). In order to succeed the plaiatiff must prove : — (1) That the statement is false ; (2) That it is malicious in fact ; (3) That it has caused him special damage. It is also actionable to publish maliciously, or with- out lawful occasion, a false statement disparaging the goods of any person, and causing such person special damage (s). The malice spoken of above is want of good faith, or any corrupt or wrong motive. {y) Per Tindal, C. J., in Malachtj v. Soper (1835), 3 Bing. N. C. 371. (a) Western Counties Manure Co. v. Lawes Chemical Manure Co. (1874), L. E. 9 Ex. 218, 222 ; SatcUffe t. Evans, (1892) 2 Q. B. at p. 524 ; White v. Mellin, (1895) App. Cas. 154. F. 130 LAW OF TORTS. OHAPTEE VIII. OF WRONGS TO THE PERSON. A. — ^Assault and Battery. B. — False Imprisonment. C. — Malicious Prosecution. D. — Malicious Arrest. A. — An assault is the unlawful laying of hands on another person, or an attempt or offer to do a cor- poral hurt to another, coupled with an apparent present ability and intention to do the act. No mere words can in any case amount to an assault {a). A battery is the actual striking of another person, or touching him in a rude, angry, revengeful, or insolent manner. " The least touching of another in anger is a battery" (&). " Such acts as are reasonably necessary for the common intercourse of life are not assaults or bat- teries, if they are done for the purpose of such inter- {«) Stephea's Digest of the Crimmal Law, p. 177. (S) Per Holt, C. J., in Coles v. Turner (1705), 6 Mod. 149, OF WRONGS TO THE PERSON. 131 course only, and with no greater force than the occasion requires" (c). Mayhem is assault and battery of such an aggra- vated character as to amount to an actual wounding of the person ; or, according to an old definition,- " the violently depriving another of the use of such of his members as may render him the less able in fighting to defend himself or to annoy his adversary." Assault and battery are justifiable — (1) In defence of person or property (t^). The force used must not, however, be more than is necessary under the circumstances. Under the -first of these heads a man may justify himself on the ground of defending his wif e> child, or probably even his friend. (2) By reason of defendant's peculiar position, e.g., a father may chastise his child, or a schoolmaster his boys, or a captain the sailors on board his ship ; but the chastisement must not be excessive or unreasonable. (3) By leave and licence of party injured. (4) In the preservation of the public peace, if com^ mitted during the continuance of the afEray (e), and with no more force than is necessary. [c] Stephen's Dig. Or. Law, p. 177. (J) See Blades v. Siggs (1861), 30 L. J.- 0. P. 347 ; and pp. 20, 42, 45, supra. ) [e) Noden v. Johnson (1850), 16 Q. B. 218. i 9(2) 132 tAW OF TORTS. Defence under 24 & 25 Viet. c. 100, ss. 42—45.-^ Where an assault is complained of before justices, and (1) the punishment imposed by the justices is suffered, or (2) after an actual hearing on the merits (/), when they give a certificate of acquittal on the ground (a) that the offence is deemed not proved, or (b) that it was " justified, or so trifling as not to merit any punishment," then in the above cases there is immunity from " all further or other proceedings against defendant, civil or criminal, for the same cause." " In Reg. v. Morris {g), it was held that these words mean subsequent proceedings for an assault, and that they are not meant to cover sub- sequent proceedings for the act constituting the assault "(A). Thus, in the case cited, it was held that if death followed an assault, for which the offender had been punished, he might, nevertheless, be indicted for manslaughter ; and in the later case of Masper v. Brown [i) it was held that a man who had been fined for an assault on a married woman could not be subsequently sued by her husband for the damage he had sustained by the loss of his wife's services. (/) Meed v. Kutt [M^O), 24 Q. B. D. 669; 59 L. J. Q. B. 311. {g) (1867), L.R.I C. C. E. 90. (A) Stephen's Dig. Or. Law, 4th ed. p. 192, n. 1. (i) (1876), 1 0. P. D. 97. OF WRONGS TO THE TEESON. 133 The granting of the certificate by the justices may, if it be refused, be compelled by mandamus. B. — False imprisonment is some unlawful detention of the person, either (1) actual, e.g., laying hands upon a person ; or (2) constructive, e.g., by an officer telling anyone he is wanted and making him accom- pany him, as was done by a bailiff in Grainger v. Sillik). There must be restraint or show of autho- rity, but not necessarily incarceration. But the restraint must be total. A mere partial restraint is not sufficient. Thus, in Bird v. Jones (J), it was held that there was no imprisonment committed by two policemen, who merely hindered defendant from going on a portion of a public footway on a bridge which was appropriated by seats to view a regatta. The plaintiff need only prove the detention or im- prisonment; the defendant must then justify what he did, which he can do — I. If he acted under legal warrant. II. If he acted without warrant ; — 1. If a constable, he may arrest— (1) Anyone whom he suspects to have com- mitted a felony (m). (2) To prevent a breach of the peace, or {k) (1838), 4Biiig. N. C. 212. {I) (1845), 7 Q. B. 742., (m) Arohbold's Criminal Pleading and Evidence, 2l8t ed,,. p. 799. 134 LAW OF TORTS. ( whenever a breach has been committed in his presence. (3) By statutory authority, e.g., when he finds anyone committing an indictable offence by night or malicious injury to property. 2. If a private person, he may arrest — (1) Anyone whom he suspects to have com- mitted a felony, provided that a felony has actually been committed {m). (2) To stay a breach of the peace or for treason. (3) By statutory authority, e.g., under the Vagrancy Act (5 Greo. 4, c. 83), for indecent exposure, street gaming, &c. (4) Anyone for whom he has become bail, in order to give him up in his (the bailor's) disehaige(m). 3. By reason of his position, e.g., naval and military officers may detain their subordi- nates, a master his apprentice, or a father his child. C. — Malicious prosecution is the malicious institu- (m) Archbold's Criminal Pleading and Evid^ce, 21st ed., P.-799.-' ' " («) Ex parte Lyne (1822), 3 Stark. 132 ; 23 E. E. 762. OF WRONGS TO THE PERSON. 135 tion against another of criminal, bankruptcy, or liquidation proceedings without reasonable and pro- bable cause. Plaintiff must prove five things — : 1, That defendant preferred a charg^e of the nature indicated (in above definition) against him before a judicial officer. . 2. That defendant acted maliciously. The malice here spoken of is " malice in fact {malus ani- mus), indicating that the party was actuated either by spite or ill-will towards an indivi- dual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards any- body " (o). As was pointed out by Bowen, L. J., in Abrath v. iV. S. Ry. Co. (p), the ; plaintiff in an action of this kind must prove that the defendant acted " from an indirect and improper motive, and not in furtherance of justice." In the wordsof Alderson, B. (y), " any motive, other than that of simply instil tuting a prosecution for the purpose of bring- ■ ing a person to justice, is a mahcious motive ■ on the part of the person who acts in that way." The existence of malice is purely a ; \{o) Per Hawkins, J., in Sides v. Fmllcner (1882), 8 Q. B. D. at pU75. [p) (1883),, 11 App. Ca. at p. 2i7. {q) Stevens v. Midland Counties Ballwaj.Ca. .(1851), 1,0 Ex. Soft. 136 • LAW. OF TORTS. question of fact for the jury, who may, if they choose, infer it from the fact — 3. That the defendant acted without reasonable and probable cause. The jury find the facts on which the question of reasonable and probable cause depends, and the judge then decides whether the facts so found constitute reason- able and probable cause (r). 4. That the proceedings terminated in plaintiff's favour; but this need not be proved if the proceedings are in their nature incapable of terminating in the plaintiff's favour, e.g., the malicious exhibition of articles of the peace (s). 5. That plaintiff has suffered in person, reputation, or pocket. It has been held that an action for maKcious prosecution will lie against a corporation,, or Hmited company {t) ; but there is an extra-judicial dictum of Lord Bramwell's to the contrary in Abrath v. N. E. Ry. Co.{u). " The distinction between false imprisonment and malicious prosecution is well illustrated by the case where parties being before a magistrate, one makes (c) Ferryman v. lister (1868), L. R. i H. L. 521. {«) Stewards. Gromett (1859), 7 C. B. N. S. 191. (<) Edwards v. Midland Railway Co. (1880), 6 Q. B. D. 287 ; Kent V. Courage ^ Co. (1890), 55 J. P. 264; 7 Times L. K. 50; Rayson v. South London Tramways Co., (1893) 2 Q. B. 304., («) (1883), 11 App. Ca. 250. OF WRONGS TO THE PERSON. 137 a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can he investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprison- ment " (x). Thus the question is, does defendant set a ministerial or a judicial officer in motion ? If the former, he may be liable for false imprisonment ; if the latter, for malicious prosecution. D. — Malicious arrest is wilfully putting the law in motion to effect the arrest under civil process of another without cause, and anyone committing this offence, i.e., deliberately obtaining the arrest of another by a false statement or suppression, renders himself liable to an action for damages. The malice here spoken of is malice in law. (x) Per WiUes, J., in Austin v. Dowling (1870), L. E. 5 0. P. *t p. 540. 158 . LA.W OF TORTS. CHAPTER IX. OF WRONGS ARISING FEOM FRAUD (a). Fraud is a false representation of fact made with a knowledge of its falsehood, or without belief in its truth, or in reckless disregard whether it he true or false, with the intention that it should be acted upon by the complaining party. No action lies unless the plaintiff has been induced to act upon such false representation and actual damage has resulted — such damage being the natural and probable con- sequence of plaintiff's action on faith of defendant's statement. In the leading case of Deny v. Peek (b), which came before the House of Lords in 1889, Lord Herschell thus summarized the law. " I think," said the learned judge, " the authorities establish the following propositions : — First, in order to sustain an action of deceit, there must be proof of fraud, and (a) I am under considerable obligation to Sir William Anson's Law of Contract in respect of the first part of this chapter, and the student should carefully read pp. 203 — 215 of the 8th edition of that learned author's work. (*) U App. Ca. at p. 374. OF "WRONGS ARISING FROM FRAUD. 139 notliiiig short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has heen made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a state- ment under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who know- ingly alleges that which is false has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made." It is important, however, to notice a later passage in the same judgment which, as was subsequently pointed out by Lindley, L. J., in the Court of Appeal in' Angus v. Clifford (c), " qualifies th6 former statement in a most material manner." " In my opinion," said Lord Herschell, in the passage referred to {d), "making a false statement, through want of care f aUs far short of, and is a very different thing from fraud, and the same may be said of a false ■ (c) (1891) 2 Ch. at p. 465. {d) 14 App. Ca. at p. 3?6.- ' 140 ,^ LAW OF TOKTS, . representation honestly believed though on insuffi- cient grounds." Therefore, as the Court of Appeal decided in Angus v. Clifford {e), there is no fraud for which an action will lie, if the defendant carelessly made a false statement without appreciating the importance and significance of the words used unless indifference to their truth is proved. There must be a representation of fact false in itself, or combined with suppression of truth. — The active concealment of a material fact is sufficient ; thus it was held that an action of deceit lay where the vendor of a house, knowing of a defect in the wall, plastered it up and papered it over (/) ; so, too, in Schneider v. Heath {g), where a ship was sold "with all faults," and the vendor, knowing of a latent defect, concealed it, and made a fraudulent representation as to its condition. , An action of fraud does not lie for a mere expression of opinion. — The phrase " worth so much " has heen held to be merely an expression of opinion (Ji) ; "gave so much for it " a representation of fact {i). Non-disclosure when there is no duty to disclose is not fraud. — In Ward -v. Hohbs (j), defendant, knowing («) (1891) 2 Oil. 449. (/) Cited in Pickering v. Bowson (1813), 4 Taunt, at p. 785, (g) (1813), 3 Camp. 503,; 14 E. K. 825. ^ (A) Harvey y. Toung (1602), 1 Yelv. 20. (i) LincUay Petroleum Co. v. Hurd (1874), L. R. 5 P. 0. 243. Ij) (1878), 4 App.'Ca. 14. OF WRO^'GS ARISING FROM FRAUD. 141 that his pigs had a contagious disease, sent them to market, contrary to the Contagious Diseases (Animals) Act, 1869. The plaintiff bought them, there being no representation that they were sound, and one of the conditions of sale providing that the purchaser should take them " with all faults " ; the greatet number died, having infected other pigs belonging to the plaintiff. Held, no action lay. In Keates v; Lord Cadogan [k), where the defendant let a house to the plaintiff for a term of years (l), knowing it to be required for immediate occupation, without disclosing that it was in a ruinous condition, it was held that no action for fraud lay. There must be knowledge of falsehood or absence of belief in, or reckless disregard of truth (m) . — In Dick- son T. Reute/s Telegraph Co. («), defendants, by mis- take in transmission of a message, caused the plaintiff to ship large quantities of barley which were not required, and which, owing to a fall in the market, resulted in heavy loss. The defendants were held not liable, the representation not being false to their knowledge. Nor will an action of deceit lie for a representation [k) (1851), 10 C. B. 591. {£) Contra, if house let furnislied for short period. Cf . Smith v. Marrahle (1843), 11 M. & W. 5; Wilson v. Finch-Eaiton (1877), 2 Ex. D- 336. [m) Reese River Mining Co. v. Smith (1839), L. E. 4 H. L. 79. {«) (1877), 3 C. P. D. 1. 142 XAW OF TORTS. wMcli the defendant really and honestly believed to be true. — And it is immaterial whether such belief was held on reasonable grounds or not (o), except in so far as absence of reasonable cause may go to show that there was no real belief at all {p). If the representa- tion is thought to be true at the time of making it, but is subsequently discovered to be false before the other party has acted upon it, it seems on principle that the defendant would be liable. This, at any rate, was the old rule of equity, which, by reason of the Judicature Acts, now prevails. But the absence of dishonest motive is no defence. — In Polhill V. Walter (q), the defendant accepted a bill of exchange drawn on A., representing that he had A.'s authority to do so, and honestly believing that the acceptance would be sanctioned and the bill met by A. The biU was dishonoured. Held, an action for deceit lay against the defendant by an indorsee for value. Nor can the defendant excuse himself by showing that he had nothing to gain by making the false repre- sentation. — In Leddell v. McDougal (r), plaintiff wrote to defendant, asking if defendant could recommend T. (o) Glasier v. Soils (1889), 42 Ch. D. 436 ;' Zow v. Souverie, (1891) 3 Ch. 82. , {p) Derry v. Feele (1889), 14 App. Cas. 337. [q) (1832), 3 B. & Ad. 114 ; see also Peek t. Gurney (1873), L. E. 6H. L. 409. [r) (1881), 29 W. R. 403. OF WRONGS ARISING FROM FRAUD. 1413 as a safe and responsible tenant. Defendant wrote back that " he had much pleasure in replying affirma- tively," knowing T. to be a man of no means, who had failed several times in busiaess of the same kind. Held, defendant was liable, even though the letter was written out of pure kindness, and defendant had nothing to gain by making the false representa- tion. By the 4th section of the Statute of Frauds (s), a promise to answer for the debt, default, or miscarriage of another must be in writing and signed. The object of this provision was, however, practically evaded by a number of cases, notably Pasley v. Freeman (t), which were framed in tort instead of in contract. In consequence of this. Lord Tenterden's Act, 9 Geo. 4, c. 14, was passed, requiring every eulogy of another's conduct, credit, ability, &c., made with the object of inducing trust of such person, to be in writing and signed by the party to be charged there- with, before an action for false representation would lie. According to the better opinion, only state- ments really going to the assurance of personal credit are withia the statute (u). (s) 29 Car. 2, i;. 3. (t) (1789), 3 T. E. 51 ; 1 E. E. 634. (m) Per Parke and Alderson, BB., in Zffde v. Barnard (1836), 1 M. & W. 101 ; see also Bishop v. BalMs CmsoUdated Co. (1890), 25 Q. B. D. 512. 144 lAW OF. TORTS. The statement need not be made to the injured party. — Thus in Langridge v. Levy{v), defendant sold a gun to the father of the plaintiff, for the use of himself and his sons, representing that the gun was made by Nock, and was soimd. Plaintiff used the gun, which exploded, injuring his hand. Held, defendant was liable. The statement must, however, be made with the intention that the plains tiff should act upon it; and therefore, in Peek v. Giirney [x) , directors, who would have been liable to original allottees of shares for false statements in the prospectus of a company, were held not liable to subsequent purchasers of shares which came into the market. And the injury must be the immediate, not the remote, consecLuence of the repre- sentation thus made (y). Deceit which does not deceive is not fraud. — Thus, in Horafall v. Thomas (s), the defendant sold a can- non to the plaintiff, having concealed a defect in it. Plaintiff never inspected the cannon, which, owing to the defect, burst on being used. Held, defendant was not liable, as plaintiff never inspected the cannon, and was not deceived by the attempted fraud (a). (v) (1837), 2 M. & W. 519. \x) (1873), L. R. 6 H. L. 377. [y) Feek v. Gurney, supra. (z) (1862), 1 H. &C. 90. (a) See also Smith v. Chadwick (1882), 20 Ch. D. 27 ; and Pasleif V. Freeman (1789), 3 T. R. 51 ; 1 R. R. 634. OF WRONGS ARISING FROM FRAUD. 145' The fact that the party deceived has the means at hand of finding out the truth is immaterial, if he make no actual independent inquiry (b). A mere per- ■ functory inquiry on the part of the party deceived is ■ not sufficient (c). Thus, to escape liability the defen- dant may prove that the other party (1) knew the truth ; or (2) relied wholly on his own investigation ; or (3) was not really influenced in his conduct by the ' defendant's misrepresentation. The position of directors and promoters of com- panies differs from that of the Ordinary defendant in an action of deceit. By the Directors' Liability Act, 1890 [d), directors, promoters, and persons who have authorized the issue of any prospectus or notice with regard to a company, are liable for loss or damage, caused by an untrue statement therein, to any person who has subscribed for any shares or debentures on the faith of such prospectus or notice, unless it is proved (a) that they not only believed in the state- ment but had reasonable ground for such belief ; or (b) that it was a correct statement of the report or valuation of an engineer, valuer, accountant, or other expert, and even then they will be liable if it be proved that they had no reasonable ground for believ- ing that such person was competent to make such (i) Doielly. Stevens (1825), 3 B. & C. 623 ; 27 E. B. 441. (c) Medgrave v. Hurd (1881), 20 Oh. Div. 1. {d) 53 & 54 Viot. o. 64, s. 3. F. 10 146 LAW OF TOKTS. report or valuation ; or (c) tliat sucli statement was a correct and fair representation of a statement made by an official person, or contained in a public official document. Misrepresentations made by agents. Tbe agent himself is personally liable, according to the general rules governing the law as to fraud. The liability of the principal depends on several considera- tions. The following cases appear on this matter : — I. The principal knows the representation to be false. (i) He authorizes the making of it. In this case, whether the agent knows it to be false or thinks it to be true, the principal is liable. (ii) The representation is made by the agent in the general course of his employment, but with- out any specific authorization from the prin- cipal. When (a) The agent knows it to be false, the principal is liable (e) ; (b) • The agent thinks it to be true. In this case the contract may always be rescinded ; but will an action for fraud lie against the prin- cipal ? The two following distinctions must be remembered : — (a) WTien the principal fraudulently keeps the knowledge from the agent, he is no doubt (e) Per Parke, B., in Cornfoot v. FowTce (1840), 6 M. & W. 358. OF WRONGS ARISING FROM FRAUD. 147 liable. This was admitted by all the barons in Cornfoot v. Fowke (/), and followed in Ludgater v. Love {g), where a father know- ingly directed his son to make a false repre- sentation about the condition of some sheep. (/3) When the knowledge is held back by the principal through inadvertence. In this case it is probable that an action will lie against the principal, though this would be con- trary to the decision in Cornfoot v. Foioke (/) , where there was a mis-statement by the agent in good faith, and there was no sug- gestion of fraud on the part of the prin- cipal, about the condition of a house, and it was held that the plaintiff could not get out of his agreement on the ground of fraud. "I think," said Alderson, B., "it is im- possible to sustain a charge of fraud, when neither the principal nor agent has com- mitted any : the principal, because, though he knew the fact, he was not cognizant of the misrepresentation being made, nor even directed the agent to make it: and the agent, because, though he made a misre- presentation, yet he did not know it to be one at the time he made it, but gave his (/) (1840), 6 M. & W. 359. (S) (1881), 44 L. T. N. S. 694. 10(2) 148 LAW OF TORTS. answer bona fide." Atinger, C. B., dissented, and it is very protable that this case will be overruled ; if, iadeed, it is even now law. Many dicta are to be found adverse to this decision, those of Willes, J., in Bar wick v. Eng. Joint Stock Bank (A) being especially worthy of notice. II. The principal thinks the representation to be true, (i) He authorizes it to be made. When (a) The agent knows at the time, or finds out afterwards, that it is false, the principal is liable (A) ; (b) The agent thinks it to be true — here the principal is not liable. (ii) The agent makes the representation in the general course of his employment, but with- out any specific authorization. When (a) The agent knows it is false, the principal is liable («). It has been suggested that this liability is limited to the amount of profit made, though in Swire y. Francis (k), the Privy CounciL held a principal liable who derived no profit at all. It is, how- ever, possible that the limitation suggested (h) (1867), L. R. 2 Ex. 259. (i) UdeU T. Atherton (1861), 7 H. & N. 181 ; and Barwkk t. Bng. Joint Sloc/c Bmk (1867), L. K. 2 Ex. 259. (k) (1877), 3 App. Cas. 106. OF WRONGS ARISING FROM FRAUD. 149 ■would be held applicable if the defendant were a corporation (/) ; though the point was not taken in Denton v. Gt. N. Rail. Co. (m). (b) The agent thinks it to be true — the prin- cipal is NOT liable. Thus we find that the principal is liable in all possible cases, except when both he and his agent believe the latter's misrepresentation to be the truth. (Z) Per Lord Cranworth, in Western Sank of Scotland v. Addie (1867), L. R. 1 Sc. App. at pp. 166, 167 ; and seeperBowen, L. J., in British, ^e. Co. v. Charnwood, %c. Co. (1887), 18 Q. B. D. at p. 719. (m) (1856), 5E. &B. 860. 150 LAW OF TOKTS. CHAPTER X. OF THE DUTY TO ABSTAIN FROM NEGLIGENCE, AND OF CERTAIN WIDER DUTIES IMPOSED IN SPECIAL CASES. In all cases of negligence, and, indeed, in all cases of tort, a man is answerable only for such consequences of his wrongful act or omission as, in the ordinary course of affairs, are the natural and probable conse- quences of such wrongful act or omission {a). Thus, in Scott V. Shepherd (b), the deiendant threw a lighted squib into a crowded market place, where it was pitched about from hand to hand until it burst, put- ting out the eye of the plaintiff. The defendant was held liable. Two cases, one on each side of the line, may be usefully considered. In Sharp y. Powell (c) , the defendant's servants washed a van in the street, in contravention of the Metropolitan Police Act. The water so used would, under ordinary circum- («) See "The Common Law," by Mr. Justice 0. W. Holmes, Lecture III., especially pp. 108 et seq. (}) (1773), 2 Wm. B. 892. (c) (1872), L. E. 7 C. P. 253. NEGLIGENCE. 151 stances, have escaped throiigli a grating ; but owing to a severe frost the grating had previously become blocked up vdth ice, and the water, not being able to escape, formed a sheet of ice. Upon this sheet of ice plaintiff's horse slipped and was injured. Held, the defendant was not liable, as the injury- was not the natural consequence of his act. But in Clark V. Chambers id), the defendant wrongfully placed a barrier with spikes across a road, leaving an opening for the purposes of traffic. A third party placed one of these spikes in the roadway. The plaintifi, lawfully passing along the road at night, was injured by this spike. Held, that the defendant was liable, as the injury was the natural and prob- able consequence of this act. Negligence is the breach of a duty (a) to do some- thing which a reasonable man, guided by those con- siderations which ordinarily regulate the conduct of human affairs, would do, or (b) to abstain from doing something which a prudent and reasonable man would not do (e). It is important to remember that the defendant vnll not be legally responsible for not exercising the diligence of an average reasonable man, unless he is so situated that he is under a duty to exercise such («?) (1878), 3Q. B.D. 327. (e) See per Alderson, B., in Blyth v. Birmingham Waterworks Co. (1856), 25 L. J. Ex. at p. 213. 152 LAW OF TOUTS. diligence (e). In the 'words of Lopes, L. J. (/), " there cannot he a liahility for negligence unless there is a breach of some duty." In Blyth v. Birmingham Waterworks Co. (g), it was held that a water company, which observed directions laid down by Act of Parliament in putting down their pipes, was not liable for negligence merely because the precautions which it had taken proved insufficient against the effects of a winter of extreme coldness, such as no ordinary person could have foreseen. In Holmes v. Mather (h), defendant's horses, driven by defendant's servant, bolted, and became so un- manageable that the servant could not stop them, but could, to some extent, guide them. While trying to safely turn a corner, the servant guided them so that, unintended by him, they knocked down and injured plaintiff. Held, defendant was not guilty of negligence. Bramwell, B., is reported to have said («) : — " The driver is absolutely free from aU blame in the matter. Not only does he not (e) See PoUook, 5th ed. pp. 405—406, 408—409. (/) In Lane t. Cox, (1897) 1 Q. B. at p. 418. See also Neuwith v. Over-Barwen Society (1894), 63 L, J. Q. B. 290 ; 70 L. T. 374 ; Le Lievre t. GouU, (1893) 1 Q. B. 491. (y) (1856), 25 L. J. Ex. 212. (A) (1875), L. E. 10 Ex. 261. See also StanUy y. Fowell, (1891) IQ. B. 86. i) L. R. 10 Ex. at p. 267. i NEGLIGENCE. 153 do anything wrong, but he endeavours to do that which is best under the circumstances. The mis- fortune happens through the horses being so startled by the barking of a dog that they ran away with the groom, and the defendant who is sitting beside him. Now, if the plaintiff, under such circumstances, can bring an action, I really cannot see why she could not bring an action because a splash of mud, in the ordinary course of driving, was thrown upon her dress, or got into her eye, and so injured her. It seems manifest that, under such circumstances, she could not maintain an action." Carriers of passengers are not, like carriers of goods, insurers. Their duty is to take due care (including in that term the use of skill and foresight), and is not a warranty that the carriage is, in every respect, fit for its purpose. In Readhead v. Midland Rail. Co. (k), where the accident was caused by a latent defect in a vehicle, which it was impossible, with the exercise of all due care, caution, and skUl to have discovered, it was held that the railway company was not liable. Where, however, there is a sale of a chattel for a specific purpose, and therefore an implied warranty that the chattel is reasonably fit for such purpose, the defendant, even' though not guUty of negligence, is liable for an accident caused Ibj a latent defect in {k) (1869), L. E,. 4 Q. B. 379. 154 LAW OF TORTS. the chattel; thus, in Randall v. NewsoniJ), plaintiff bought a pole for his carriage from the defendant, a coaeh-huilder. The pole broke in use, and the horses, becoming frightened, were injured. The jury found that the pole was not reasonably fit for the carriage, but that defendant was not negligent. Held, that the defendant was liable. Province of judge and jury in actions for negligence — "The judge has to say whether any facts have been estabhshed by evidence from which negligence may be reasonably inferred ; the jurors have to say whether from those facts, when submitted to them, negligence ought to be inferred " {m). What must plaintiff prove before the judge can allow the evidence to go to the jury ? (1) "Where there is no coutract between the parties, plaintiff must prove facts inconsistent with due diligence on defendant's part. Thus, no negligence can be inferred from the fact of a foot-passenger being knocked down by a carriage where both have an equal right to be, or by a train at a level crossing. " Where the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale " (n). (T) (1877), 2 Q. B. D. 102. [m) Per Cairns, L. C, in Metropolitan Railway Co. v. Jackson, (1877), L. E. 3 App. Ca. 197. {«) Per Erie, C. J., in Cotton v. Wood (1860), 8 C. B. N. S. 568 ; NEGLIGENCE. 155 (2) Where there is a contract between the parties, and, probably, when there is a personal under- taking without a contract, plaintifE need only prove such contract or personal undertaking and injury to himself. It is for the defen- dant to prove that he himself was exercising due care — e.g., a collision between trains under defendant company's control, whereby a passenger is injured, is prima facie proof of negligence, and it is upon defendant to rebut such presumption if he can (o). (3) Again, there is a presumption of negligence when the cause of mischief is apparently under the defendant's control. In Scott t. London Bock Co. {p), a custom-house ofScer, being lawfully and by right in certain docks, was knocked down by a bag of sugar which fell from defendant's crane. In Kearney v. L. B. (^ S. C. Rail. Co. (q), a brick fell from defen- dant's bridge on plaintiff walking in the road below. In Byrne v. Boodle (r), a bag of flour fell from defendant's warehouse, in Liverpool, 29 L. J. C. P. 333 ; Hammack v. White (1862), 11 C. B. N. S. 588 ; 31 L. J. 0. P. 129 ; Walcelin v. L. f S. W. Railway Co. (1886), 12 App. Cas. 41. (o) Carpue v. L. ^ B. Railway Co. (1844), 5 Q. B. 747, 751. {p) (1865), 34 L. J. Ex. 220. [q) (1871), L. E. 6 Q. B. 759. (V) (1863), 2 H., & C. 722. 156 LAW OF TORTS. on plaintiff walking in the street below. In all these cases res ipsa loquitur, it being held that the mere unexplained fact of the acci- dent happening at all was evidence of negli- gence. The doctrine of contributory negligence. — Though negligence whereby actual damage is caused is action- able, yet if plaintiff has himself been guilty of such negligence as is in reality the proximate or decisive cause of the injury complained of, and but for which, such injury would not have happened, he cannot re- cover. Not every act of negligence on plaintiff's part will prevent him from recovering ; " only if he has been negligent in the final stage, and at the decisive point of the event, so that the mischief, as and when it happens, is immediately due to his own want of care, and not to the defendant's" (s). In Fordham v. L. B. ^ S. C. Bail. Co. (t), defen- dant's guard, without warning, forcibly closed the door of a railway carriage, thereby injuring plain- tiff's hand. Held, there was no contributory negli- gence on plaintiff's part. In Richardson v. Metro- politan Rail. Co. (a), there were the same facts, but the guard gave due warning before shutting the door. Held, that plaintiff was disentitled, by his contribu- (s) Pollock, 5th ed. p. 430. (t) (1868), li. E. 3 C. P. 368. («) (1868), L. E. 3 0. P. 374, n. NEGLIGENCE. 157 tory negligence, from recovering. In Butterfield v. Forrester {x), plaintiif, riding violently home ia the dusk, came against a pole left by defendant ia the highway, and was thrown from his horse and injured. Held, defendant was not liable, owing to plaiatifi's contributory negligence. Another way of stating the above rule is, that plaintiff's negligence wiU not prevent him from re- covering, if defendant, by being ordinarily careful, might have averted the consequence of such negli- gence. The leading case which may be said to have settled the doctrine of contributory negligence in its modern form is Tuff v. Warman{y), which was an action against the pilot of a Thames steamer for run- ning down a baxge. Though no look-out was kept on the plaintiff's barge, defendant was held liable on the above ground. The earlier and well-known case of Davies v. Mann (s) is an illustration of the same rule. In that case the plaintiff had negligently left his donkey, with its legs tied, in the pubhc highway, and defendant drove over and killed it. Held, de- fendant was liable on the above ground. In Wakelin v. L. ^ S. W. Rail. Co. (a), an action {x) (1809), 11 East, 60 ; 10 E. E. 433. {y) (1857-8), 2 C. B. N. S. 740. («) (1842), 10 M. & W. 546. (a) (1887), 12 App. Ca. 41. See also Davey v. Z. f S. W. Rail. Co. (1883), 12 Q. B. D. 70 ; and of. Smith v. South Eastern Sail. Co., (1896) 1 Q. B. 178. 158 LAW OF TOKTS. under Lord Campbell's Act was brought by the widow of a man who was found killed on a level crossing of defendant company's line, there being no evidence as to how he came to be there. The defendant com- pany was held not liable; for even assuming (but without deciding) that there was evidence of defen- dant company's negligence, there was no evidence to connect such negligence with the accident. Contributory negligence of children. — ^A child is tp be judged as a child, and is not to be expected to exercise the same amount of care as a person of mature years. He must not, however, get into mischief to the extent of doing what he knows to be wrong. If he does, he is guilty of contributory negligence, which will disentitle bi'm from recovering. In Lynch v. Nurdin (b), defendant negKgently left a horse and cart unattended in the street. PlaiatijBE, aged seven, climbed on the cart in play, and another child led the horse on, whereby plaintiff was thrown down and hurt. Held, that defendant was liable on the above ground. This case was doubted in Lygo v. Newhold (c) ; and the tendency of later authorities is in the direction of limiting defendant's responsibility in such cases. In Abbott V. Macfie (d), plaintiff, aged seven, got {b) (1841), 1 C. B. 29. (c) (1854), 9 Ex. 302. (i) (1864), 33 L. J. Ex. 177. NEGLIGENCE. 159 upon the cover of a cellar left leaning against a wall by defendant. The coyer fell, injuring plaiatiff. Held, he could not recover. In Mangan v. Atterton (e), de- fendant left unattended a machine which anyone could set in motion, and plaintiff, aged four, by the direc- tion of his brother aged seven, put his hands in the machine while his brother turned the wheel. The plaintiff was injured, but it was held that defendant was not liable. In Singleton v. Eastern Counties Bail. Co. (/), plaintiff, aged three, was injured by a passing train while sitting on a railway parapet. Held, that the company was not liable, rather how- ever on the ground that there was no evidence of negligence against the defendant than that the plain- tiff was disentitled from recovering by reason of con- tributory negligence. The common law rule of contributory negligence is not part of the maritime law administered in courts of Admiralty jurisdiction, the loss being equally divided in case of collision where both ships are in fault ; and this rule was expressly reserved in the Admiralty Division by the Jud. Act, 1873, s. 25, sub-s. (9). This rule of the Admiralty Court is, however, to some extent superseded by the provisions of sect. 419, sub-s. (4), of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60). Doctrine of identification. — According to Thorogood (e) (1866), L. R. 1 Ex. 239. {/) (1859), 7 C B. N. S. 287. 160 LAW OF TORTS. V. Bryan [g), if A., travelling in B.'s carriage, driven by B.'s servant, is injured in a collision with O.'s carriage, tlie negligence of B.'s servant being the proximate cause of the accident, A. was considered to be so identified with B. as to be disentitled from suing G. This is no longer the law since the. judg- ment of the Court of Appeal in The Bernina (h), in which case there was a collision between two ships, both in fault. The officer in charge, the chief engi- neer off duty, and a passenger, all belonging to the same ship, were drowned. Held, in an action against the owners of the other ship, overruling Thorogood v. Bryan {g), that the representatives of the officer in charge, who was directly responsible for the naviga- tion of the ship at the time of the collision, could recover nothing, but that the representatives of the chief engineer and passenger could do so ; the law being that where damage is sustained by the con- current negligence of two or more persons, there is a right of action against all or any of them at plaintiff's option, and the exception of contributory negligence extends only to the acts and defaults of plaintiff himself, or of those who are really his agents. Watte v. iV. B. Bail. Co. («) was distinguished and approved (g) (1849), 8 C. B. 115. (A) (1887), 12 P. D. 36 ; afBrmed by the House of Lords, nom. Mills V. Armstrong (1888), 13 App. Cas. 1. (i) (1859), E. B, & E. 719. NEGLIGENCE.. 161 on the ground that persons dealing with an adult and . also with an infant or imbecile of whom the adult has charge, are entitled to expect reasonable care on the ■ part of the adult, both for himself and for the helpless person in his charge. In the case last cited, the plaintiff, a little boy, aged five, and his grand- mother, were knocked down in crossing a line ; the former was much injured, the latter killed. Held, that the little boy was so identified with his grand- mother that her negligence was his, and, on this, ground, that the plaiatifE was disentitled from re- covering by reason of contributory negligence. Of certain WinEn Duties imposed by the Policy OF the Law in certain Si-ecial Oases. " Everyone must so use his own as not to do damage to another." This was laid down as law nearly two hundred years ago by Holt, 0. J., in Tenant v. Gold-win (J), and it is the principle of the leading case of Rylands v. Fletcher {It). Sic utere tuo ut alienumnon Icedas. "A person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does (J) (1705), 2 Lord Raym. 1092. {k) (1868), L.R. 3H. L. 330. F. 11 162 LAW OF TORTS. not do so is prima facie answerable for all the damage which is the natural consequence of its escape" (Z;). In at/lands v. Fletcher (/), the defendants employed a competent engineer to make them a reserToir. Cer- tain old mine shafts were discovered and filled in unknown to the defendants. The water escaped through the shafts and injured plaintijBE's mine. Held, the defendants were liable without any ques- tion of negligence. Such a person, is not, however, responsible if the escape is due to — (1) Causes beyond his own control, and amounting to act of G-od — i.e., such an accident as human foresight could not be reasonably expected to anticipate (w). In Nichols v. Marsland {n), the defendant owned artificial lakes, formed by damming a natural stream, into which the water was finally let off by a system of weirs. Owing to a violent storm, an overflow occurred which carried away four county bridges, whereby the action. Held, defendant was not liable ; (2) Plaintiff 's fault ; {k) Per our. in Fletcher v. Bylands (1866), L. E. 1 Ex. 277 ; cited with approval by Cairns, L. C, in the House of Lords (1868), L. E.. 3 H. L. at p. 339. (Z) (1868), L. K. 3 H. L. 330. [m) Nugent v. Smith (1876), 1 C. P. D. 441. («) (1875), L. R. 10 Ex. 355. ■DUTIES IMPOSED IN SPECIAL CASES. 163 (3) Wrongful act of third party (o) ; (4) Artificial work maintained for tlie common benefit of plaintifE and defendant. In Car- stairs V. Taylor {p), the defendant was the plaintifi's landlord, and was living on the floor above him. Some rats gnawed a rain- water box maintained by the defendant for the benefit both of himself and the plaintiff, and the water running through injured plain- tiff's goods below. Held, no action lay. (5) An act authorised by statute (§■). This of course, however, pre-supposes that the damage has been solely caused by the act of Grod, or of a third party, &c., and that the defendant has not contributed to it by some distinct breach of duty, as in Nitro-Phosphate Co. v. Lond. 8f St. Kath. Bock Co. (r), for in such a case the defendant wiU not be excused. Keeping in cattle. — The owner of cattle must keep them from straying on the land of others at his peril, though he is liable only for natural and probable con- sequences, not for an unexpected event — e.g., damage caused by the kick of a horse not known to be vicious (s). (o) Box Y. Juib (1879), 4 Ex. D. 76. {p) (1871), L. R. 6 Ex. 217. [q) Dixon y. Metropolitan Soard of Works (1881), 7 Q. B. D. 418 ; and see p. 14, supra. (r) (1878), 9 Oh. D. 503. («) Cox Y. BurUdge (1863), 13 0. B. N. S. 430 ; 32 L. J. 0. P. 89. 11(2) 164,' LAW OF TORTS. But this rule lias no application to damage done by cattle straying off a highway along which they are being lawfully driven. In such a case the owner is only liable on proof of negligence. In Tillett v. Ward if), an ox, whilst being driven through a town, ran into a shop and there did damage. Held, the owner was not liable. Liability of owners of ferocious animals for injuries committed by them : — 1. Always liable for injuries of animals naturally ferocious — i. e., animals by their very nature likely to do injury. " Though he have no particular notice that he did any such thing before, yet if it be a beast that is, ferae natures, as a Uon, a bear, a wolf, yea, an ape or a monkey, if he get loose and do harm to any person, the owner is liable to an action for the damage " (m) . Thus, in May v. Burdett («), the owner of a monkey was held liable for the animal biting a lady, and in Filburn v. The People's Palace and Aquarium Co., Limited [y), the plaintiff recovered damages for injuries inflicted upon him by an elephant exhibited by the defendants. (t) (1882), 10 Q. B. D. 17. , (m) Hale's Pleas of the Crown, vol. i., p. 430. (») (1846), 9 Q. B. 101. \y) (1890), 26 Q. B. D. 258. DUTIES IMPOSED IN SPECIAL CASES. 165 ; 2. Liable for injuries of animals not naturally fero- cious, — i.e., animals not by their nature likely to do injury — on proof of scienter, i. e., previous knowledge of the creature's mischievous pro- pensities. Therefore it was formerly held that the owner of sheep or cattle worried by a dog could not recover damages from the owner ; of the dog without proof of scienter. Now, however, " a dog is no longer entitled even to one worry," for by 28 & 29 Vict. c. 60, the owner of worried sheep or cattle can recover damages without proof of scienter. The term "cattle" comprises horses (s), and perhaps pigs (a). At common law a man was bound at his peril to safely keep his own fire so as not to do damage to another; but by the Building Act (14 Geo. 3, c. 78), s. 86, as interpreted in Filliter v. Phippard{b), a man is not liable for damage caused by a fire which began in his house or on his land, provided that it originated by accident, and without negligence. A man who brings fire dangerously near the pro- perty of another by running a locomotive engine without express statutory authority, or by running (z) Wright v. Pearson (1869), L. R. 4 Q. B. 582. (a) Child Y. Seam (1874), L. R. 9 Ex. 176. [b] (1847), 11 Q. B. 347. 166 LAW OF TORTS. a traction engine on the highway, does so at Ms peril ((?). As regards liability attending the use of specially dangerous things, the courts have been chiefly occu- pied with cases of a similar nature to those set out above ; but other instances have from time to time, though less often, engaged their attention. This branch of the law cannot as yet be regarded as settled, but it is submitted that persons using things in their nature specially dangerous, such as loaded firearms, explosives, and poisonous drugs, do so at their peril, and are liable for any damage arising therefrom, wholly irrespective of any question of negligence. See the cases of Bixon \. Bellid), Far rant v. Barnes {e), George v. Skimngton {f), Langridge v. Levy (g), and the American case of Thomas v. Winchester (h), and on the whole of this somewhat doubtful subject see Pollock, 5th ed. pp. 472—477. (c) Jones T. Festinioff Railway Co. (1868), L. E. 3 Q. B. 733; Fowell V. Fall (1880), 5 Q. B. D. 597 ; Sadler v. South Staffordshire, #«. Co. (1889), 23 Q. B. D. 17. [^ (1816), 5 M. & S. 198 ; 17 K E. 308. [e) (1862), 11 C. B. N. S. 553. (/) (1869), L. R. 5 Ex. 1. [g] Supra, p. 144. (h) (1852), 6 N. T. 397. ( 167 ) CHAPTEE XI. OF CERTAIN MISCELLANEOUS MATTERS. The text-books state that where a tort is also a felony, there is no right of action until the wrongdoer has been prosecuted for the crime, and in 1885, in the case of Applehy v. Franldin {a), Wills, J., in a Divisional Court, said, " The authorities .... leave no room for doubt that no action can be maiatained for a civil injury resulting to the plaintiff from a felo- nious act on the part of the defendant, until public justice has been vindicated by a prosecution of the ciiminal." On the other hand, in the case of The Midland Insurance Co. v. Smith (b), in the course of an elabo- rate judgment reviewing all the authorities on the question, Watkin Williams, J., said, "In the case of Ex parte Ball, In re Shepherd [c), in 1879, the doctrine that it was a condition precedent to the enforcing the civil remedy that the felon should have (a) 17 Q. B. D. at p. 95. (J) (1881), 6 Q. B. D. at p. 574. [c] 10 Ch. D. 667. 168 LAW OF TORTS. been first prosecuted, if it ever had any solid founda- tion, was finally exploded." The attention of the Court in Appleby v. Franldin was not, however, drawn either to the case of Ex parte Sail or to that of The Midland Insurance Co. v. Smith, and the law on this point cannot therefore he con- sidered as settled. It used to he said that the trespass was " merged in the felony," which until 1870 was practically true, as up to that date, on conviction of felony, the felon's property was forfeited to the Crown, and therefore it was useless to bring an action. " The principle upon which the rule is founded seems to be that the interest of the public requires that the law shall be vindicated before the individual who is wronged shall be per- mitted to have recourse to a civil remedy " (d). The rule, if it exists, has no application — 1. To misdemeanours. 2. Where the plaintiff is not the person injured by the felonious act of the defendant (e) . 3. Where the defendant is some person other than the person guilty of the crime (/). Moreover, it is not known how the rule can be {d) Per Huddleston, B., in Jpplebt/ v. Franklin (1885), 17 Q. B. D. at p. 94. (e) Osiom v. Gilletl (1873), L. E. 8 Ex. 88 ; Appleby v. Franklin (1885), 17 Q. B. D. 93. {/) WTiite T. Spettiffiie (1845), 14 L. J. Ex. 99. OF CERTAIN MISCELLAKEOTJS MATTERS. 169 enforced. It is certainly no ground for the judge at the trial to direct a non-suit [g), nor is the Statement of Claim had for showing on the face of it that the wrongful act is a felony (A). The rule cannot be raised by plea, since then the party sets up his own criminality. In Wells Y.Abrahams (i), Oockburn, 0. J., and Blackburn, J., suggest that if an action were brought against a person who was either being pro- secuted for felony or liable to such prosecution, the summary jurisdiction of the Court might be invoked to stay proceedings which would involve an undue use, probably the abuse, of the process of the Court ; whilst in Apj)lehy v. Franldin (J) the Court were apparently of the same opinion, and, though the case went ofE on another point, it certainly appears from the report that the Court would, if necessary, have been prepared to enforce the rule by striking out the Statement of Claim. Thus Huddleston, B. (/r), said, " It seems to be clear .... that it is in the power of the Court to strike out the claim upon a summary application." There is, however, no case where this power has in fact been exercised, and, as already (ff) Wells V. Abrahams (1872), L. E. 7 Q. B. 563, overruling Wellock T. Constantine (1863), 2 H. & C. 146. (A) Moope T. D'Avigdor (1883), 10 Q. B. D. 412; Midland In- surance Co. T. Smith (1881), 6 Q. B. D. 561. (i) (1872), L. E. 7 Q. B. 563. {j) (1885), 17 Q. B. D. 93. [k) 17 Q. B. D. at p. 94. 170 LAW OF TORTS. stated, the attention of the Court in Appleby v. Franklin was not drawn to the various authorities on the ques- tion. In Ex parte Elliott {I), the rule was effectually- applied to exclude a proof in baniruptcy; while in Ex parte Ball, In re Shepherd (m), though it was admitted to be the expressed opinion of centuries, it was severely criticised by Bramwell, L. J., but un- fortunately it was not there necessary to decide the point. The difficult subject usually described by the mis- leading phrase " Tort founded on contract," cannot be treated satisfactorily in the limited space of this work. The reader is referred to Pollock, 5th ed., Chap. XIII. (where a full discussion of the subject will be found), and it should be observed that. the key to the subject is, that the right of action is independent of the contract, and that the contract on the same subject is merely accidental. The following cases are worthy of especial note : — Denton v. G. iV. R. (w) : An intending passenger was held to have a remedy for damage caused by acting on an erroneous announcement in a time-table, probably on the ground of the time-table amounting to a proposal of contract ; certainly on the ground of its being a false representation. (l) (1837), SM. & A. 110. (m) (1879), 10 Ch. D. 693. («) (1856), 5 E. & B. 860. OF CERTAIN MISCELLANEOUS MATTERS. 171 Austin V. G. W. E. (o) : Plaintiff— a child just above the age at which children can pass free of charge — was injured by an accident on defendants' line whilst travelling with his mother, who had taken a ticket for herself only. Held, the company was liable, either as having contracted to carry the mother and her child, or, independently of contract, because the child was accepted as a passenger, and this cast a duty on the company to carry him safely. Marshall v. Tork, Neiccastle, and Benoick Rail. Co. (jj) : Plaintiif successfully sued defendant com- pany for the loss of his luggage by the company's negligence, though the ticket was paid for by his master, on the ground that the company had accepted the servant and his luggage to be carried, and were answerable vmder the general duty thus arising; a duty which would still exist if the passenger and his luggage had been lawfully in the train without any contract at all. Foulkes V. Metrop. District Rail. Co. (g) : Plaintiff, a passenger, was hurt on alighting at a station, owing to the carriages being unsuited to the platform. The station and platform belonged to the South-Western Railway Company, by whose clerk the plaintiff's ticket was issued ; the train belonged to defendant (o) (1867), L.E. 2 Q. B. 442. (p) (1851), 11 0. B. 655. (?) (1880), 6 0. P. D. 157. 172 LAW OF TORTS. company, who had running powers over the South- western line. Held, defendant company was Hahle, even if plaintiff's contract were with the South- Western Railway Company, solely on the ground that defendant company actually received plaintiff as a passenger, and thereby undertook the duty of not exposing him to unreasonable peril in any matter incident to the journey. Alton V. Midland Rail. Co. (r) : Plaintiff sued defen- dant company for loss of services of his servant, who was injured by defendant company's negligence whilst travelling on their line, the servant having paid for his ticket. It was held that no action lay, on the ground that the injury was caused by a breach of duty arising wholly out of the company's contract with the servant. Although this ease has not been overruled, " it has," as Lindley, L. J., recently pointed out in the Court of Appeal is), " been criticised and commented upon somewhat adversely " ; and it is submitted that it is bad law, as being inconsistent with the principles laid down in Marshall v. T. N. 8{ B. Rail. Co., and Foulkes v. if. B. Rail. Co. (t), which proceed on the existence of a duty, not only (r) (1865), 19 C. B. N. S. 213. («) In Taylor v. Manchester, Sheffield, ^ Lincolnshire My. Co., (1895) 1 Q. B. at p. 139. {fj Supra, p. 171. See also Kelly v. Metropolitan Ry. Co., (1895) 1 Q. B. 944 ; Meux v. G. E. My. Co., (1896) 2 Q. B. 387. or CERTAIN MISCELLANEOUS MATTERS. 173 in form, tut in substance, independent of con- tract. " The test question, whether the reception of the plaintiff's servant as a passenger would not have created a duty to carry him safely if there had not been any contract with him, is not directly or, it is submitted, adequately dealt with. ... A directly contrary decision has been given in the State of Mas- sachusetts" (z«). As a general rule of the common law the death either of the tort-feasor or of the party injured puts an end to the right of action for a tort. — This rule has been so far extended as to bar a master's right to sue for injuries to his servant which have resulted in the latter's death (x). It is usually expressed in the maxim. Actio personalis moritur cum persona, a maxim which is apt to mislead, for it appears to include con- tracts which, with the exception of promises of mar- riage (y), it does not, and never did. Executors have always been on the one hand able to sue, and on the (m) Pollock, 5th ed. p. 513 ; and see the Ainericaii case of Ames V. TJnion By. Co. (1875), 117 Mass. 641, which expressly followH Marshall's ease. (x) Osborn v. GilUtt (1873), L. E. 8 Exoh. 88. [y] Executors cannot sue for breach of promise of marriage without proof of special damage to their testator's personal estate : Chamierlain v. Williamson (1814), 2 M. & S. 408 ; 15 E. R. 295. M'or does the action lie against executors without special damage : Mnlay v. Chirney (1888), 20 Q. B. D. 494. 174- LAW OF TORTS. other liable to be sued, on eontraots entered into by tbeir testator. The rule is now subject to the follow- ing exceptions : — I. In relation to the death of the injured person. (1) By statutes temp. Edw. 3 (4 Edw. 3, c. 7; 25 Edw. 3, 0. 5), where an injury has been committed to the goods and chattels of a per- son who afterwards dies, the right of action survives to his executors and administrators. (2) By Stat. 3 & 4 Will. 4, c. 42, s. 2, where there has been an injury to the real estate of any person, and such person dies, the right of action survives to his executors or admini- strators, provided (i) the injury was com- mitted within six months of owner's death; and (ii) the action is brought within one year after death. (3) By the Fatal Accidents Act, 1846, 9 & 10 Vict. e. 93 (commonly known as Lord Campbell's Act), s. 1, "where a person's death is caused by the wrongful act, neglect, or default of another, and the injured person, if he had lived, could have maintained an action, and recovered damages in respect thereof, the person who would have been liable in such case shall be liable to an action for damages, notwithstanding the death of the injured person, and although the death shall have OF CERTAIN MISCELLANEOUS MATTERS. 175 been caused under sucli circumstances as amount in law to a felony." By sect. 2, sucL. action shall be for the benefit of the "wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased. By 27 & 28 Vict. c. 95, where there is no executor or administrator, or if no action is brought within six months by him, the action may be brought in the name or names of all or any of the persons for whose benefit the personal representative would have sued. Lord Campbell's Act is a very strange one ; it did not reverse the common law maxim, as it surely ought to have done, but only allows the representative to sue if he or she falls within a very limited and clearly- defined class of persons (husband, wife, parent, and child) . " Parent " includes grandfather, grandmother, stepfather, stepmother; and "child" includes grand- child and stepchild, a child en ventre sa mere{z), but not an illegitimate child (a). The jury must apportion the damages awarded amongst the persons for whose benefit the action is brought. By sect. 4, the action must be brought within one year after death, and only one action can be brought for the same cause of complaint. (2) The George and Richard (1871), L. E. 3 Ad. & Eco. 466. {a) DicUnsm v. N. E. By. Co.- (1863), 2 H. & 0. 736. 176 LAW OF TOETS. The parties for whose benefit the action is brought are to be compensated only for the pecuniary loss they suffer through the death of the deceased. Thus, no action lies for merely nominal damages (b) ; nor can the jury lawfully increase the damages by adding a solatium for the mental sufferings incurred by the death (c) ; nor can funeral expenses be recovered {d) ; but a legal right to receive benefit from the deceased need not be shown (e). In the words of Pollock, C. B., in Franklin v. S. E. Rail. Co. (/), " the damages . . . should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life." There is no action if the deceased has accepted satisfaction for his injuries before his death,' nor if the loss arises not from the relationship, but through some contract, with the deceased. (4) By the Employers' Liability Act, 1880 (43 & 44 Vict. 0. 42), s. 1, where a workman whilst engaged in his employer's service sustains personal injury from certain causes specified in the Act (see pp. 33 — 39, sMjjra,)and "the (5) Duckworth v. Johnson (1859), 29 L. J. Ex. 25. (c) Blake v. Mid. Ry. Co. (1852), 18 Q. B. 93. {d) Dalion v. S. JE. Sy. Co. (1858), 4 C. B. N". S. 296. («) Franklin v. 8. E. Ry. Co. (1858), 3 H. & N. 211. (/) (1858), 3 H. & N.rat p. 214. OF CERTAIN MISCELLANEOUS MATTERS. 177 injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and reme- dies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work" {g). (5) By the Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37), s. 7 (2) (see pp. 39— 41, supra), "any reference to a workman who has heen injured shall, where the workman is dead, include a reference to his legal personal representative or to his dependants or other person to whom com- pensation is payable. 'Dependants' means in England such members of the work- man's family specified in the Fatal Acci- dents Act, 1846 (see pp. 174 — 176, supra), as were wholly or in part dependent upon the earnings of the workman at the time of his death." II. In relation to the death of the tort-feasor. (1) Independently of statute, where property, or the proceeds of property, belonging to another have been appropriated by the deceased wxong- (g) 43 & 44 Viot. c. 42, s. 1. V. 12 178 LAW OF TORTS, doer, and added to his own estate or moneys, an action lies against the executor of the ■wrong- doer ; but this rule is limited to the recovery of specific acquisitions, or their value, and can only be maintained if there is some beneficial property or value capable of being measured, followed, and recovered. Thus, an action will lie in respect of ore dug or timber cut by the deceased wrongdoer, but not for an assault, or for ploughing up meadows (h). (2) By 3 & 4 Will. 4, c. 42, s. 2, an action may be brought against the executors and administra- tors of the deceased wrongdoer for wrongs done by the deceased to real or personal property, provided — (1) The injury was committed within six calendar months of the wrongdoer's death; and (2) The action is brought within six months of the appoiatment of executors and administrators. (h) msJiop of Winchester v. Xnight (1717), 1 P. W. 406 ; Phillips T. Somfray (1883), 24 Ch. D. 439 ; FeeJc v. Gmney (1873), L. K. 6 H. of L. 377. ( 179 ) CHAPTER XII. OF REMEDIES AND MEASURE OF DAMAGES EECOVEEABLE. A. Judicial. I. An action for damages, wliioh are : — 1. Nominal. — A sum of no substantial amount — e.g., \d. or \d. — awarded with the ohject of not granting any real compensation. In some cases plaintiff must prove actual damage, or he will fail — e.g., in an action for infringe- ment of right to support of land {a), negli- gence {b), nuisance (c), deceit [d), and in certain cases of slander (e). 2. Ordinary. — A sum awarded as a fair measure of compensation {not restitution) to plaintiff. 3. Exemplary. — Expressing indignation at de- fendant's wrong, not mere compensation to plaintiff — e.g., in an action for seduction (/), or trespass accompanied by insult {g). (a) Supra, p. 59. («) Supra, pp. 85, 96. \b) Supra, p. 150. (/) Supra, pp. 82, 83. (c) Supra, p. 63. {cf) Merest v. Sarvey (18U), \d) Supra, p. 138. 5 Taunt. 441 ; 16 K. K. 548. 12(2) 180 LAW OF TOKTS. Measure of damages recoverable. — A wrongdoer is liable for the natural and probable consequences of his act {h). He is further liable for any special con- sequences which may ensue if he has at the time of his wrongdoing notice of the special circumstances, by reason whereof those consequences will naturally and probably ensue as a result of his wrongdoing («'), for " the rule with regard to remoteness of damage is precisely the same whether the damages are claimed in actions of contract or of tort " (/i) . Damages resulting from one and the same cause of action must be assessed and recovered once for all ; contra, where the same facts give rise to two distinct causes of action. In Brunsden v. Humphrey (l), plaintiff, whilst driving in his cab, was injured by defendant's negligence. Having recovered damages in an action for the injury to the cab, he then brought a second action for personal injuries. Held, he was entitled to do so, there being two distinct causes of action. II. An application for an injunction, which is only granted where damages would not be an adequate remedy. An interim injunction is only granted when {h) HaAUy v. BaxmdaU (1854), 23 L. J. Ex. 179. (i) Ibid. ; SydrauUc Engineering Co. v. McHaffie (1878), 4 Q. B. D. 670. {h) Per Lord Esher, M. K., in The Netting Sill (1884), 9 P. D. at p. 113. i}) (1884), 14 Q. B. D. 141. MEASURE OF DAMAGES RECOVERABLE, ETC. 181 delay would prevent or render extremely diflScult the subsequent administration of complete justice. B. Extra-judicial — roughly comprised under self- help :— 1. Abatement of nuisance (m). 2. Expulsion of trespasser (n) . 3. Peaceable re-entry on land of which posses- sion has been wrongfully taken (o) . 4. Recaption (p) . 5. Distress damage feasant; i.e., the taking by an occupier of land of chattels found en- cumbering or causing damage to his land. Under such circumstances the occupier is entitled to detain the chattels until he is tendered or paid a fair compensation for the injiiry (q). No more force is to be used and no more damage done than is absolutely necessary. What is the temedy of a private individual com- plaining of the infringement of a special statutory duty ? Where the statute creating the duty indicates a remedy of a private nature — i. e., a remedy compen- sating the injured party {e. g.; an action for penalties for the use and benefit of such person) — then such [m] Supra, p. 64. [n) Supra, p. 42. (o) Supra, p. 46. [p) Supra, p. 75. {q) Addison on Torts, 7tli ed., p. 399. 182 LAW OF TORTS. remedy will generally be the only remedy. Where no such remedy of a private nature is provided, the injured party has not necessarily a private right of action. Whether he has or not depends on the scope and language of the statute taken as a whole (r). Moreover, there can be no right of action unless the object of the statute is to prevent injury of the nature complained of. In Gorris v. Scott (s), plain- tiff's sheep were washed overboard during a voyage from a foreign port to England, owing to defendant omitting to take the precautions required by the Con- tagious Diseases (Animals) Act, 1869. Held, defen- dant was not liable, the object of the statute being to prevent the spread of contagious disease, not to protect animals against the perils of the sea. In order to maintain an action here in respect of a tort coinmitted outside the jurisdiction, the act com- plaiaed of must be — 1. Wrongful by English law. — Thus, in The Hal- ley (t), there was a collision in Belgian waters. By Belgian law, but not by English law, the owners of the ship were liable, as the collision was caused by the negligence of a pilot com- pulsorily on board. Therefore they were held not liable here. (r) Atkinson v. Newcastle Waterworks Co. (1877), 2 Ex. Div. 441. {«) (1874), L. R. 9 Ex. 125. [t) (1868), L. E. 2 P. C. 193, 204. MEASURE OF DAMAGES EECOVEKABLE, ETC. 183 2. Wrongful by the law of the country where com- mitted («). 3. Not of a purely local nature — e.g., trespass to land {x). Joint tort-feasors may be sued jointly or severally; in other words, where two or more persons have participated in a wrongful act, each wrongdoer is liable for all the damage. Thus, in Hume v. Old- acre {y), the huntsman was held personally liable for all the damage caused by the hunt. The injured party may sue any one or more of the wrongdoers or all of them ; but judgment against one or more is a bar to any further action. On the same principle a release granted to one or more of the wrongdoers operates as a discharge of the others, " the reason being that the cause of action which is one and indivisible having been released, all persons otherwise liable thereto are consequently released" {%). But a covenant not to sue one of two joint tort-feasors does not operate as a release of the other from liability, " the reason being that the joint action is still alive " (s). (a) Blad's case (1673-4), 3 Swanst. 603 ; The M. Moxham (1876), 1 P. D. 107 ; Machado r. Fontes, (1897) 2 Q. B. 231. {x) British South Africa Co. v. Companhia de Mogamlique, (1893) App. Cas. 602. {y) (1816), 1 Stark. 352 ; 18 E. R. 779. (a) Per A. L. Smith, L. J., in JDucJc v. Mayeu, (1892) (C. A.) 2 Q. B. at p. 513. 184 LAW OF TOKTS. There is no contribution between wrongdoers — i.e., if one of several has been sued, and damage recovered from him, he cannot claim contribution from the others [a), provided that the wrong is so obviously unlawful that no reasonable man in committing it could suppose that he was doing a lawful act {b). (a) Merryweather v. Nixan (1799), 8 T. E. 186 ; 16 E. R. 810. (}) Adamson v. Jarvis (1827), 4 Bing. 66 ; cf. RamskiU v. Edwards (1885), 20 Ch. D. 100. ( 185 ) CHAPTER XIII. OF LIMITATION OF ACTIONS. The law on the subject of the limitation of actions of tort is contained in the statutes 21 Jac. 1, o. 16, 4 & 5 Anne, c. 3, and 19 & 20 Yict. c. 97, and has been summarised as foUows (a) : — Trespass to land and goods, conversion, and all other common law wrongs, except slander by words actionable per se, and injuries to the person. — Six years. Injuries to the person. — Four years. Slander by words aotionahle per se. — Two years. The statutes begin to run against infants and lunatics on disability ceasing (5) ; and if the defendant is beyond the seas when the right of action arises, the time runs against the plaintiff only from his return. Any action brought against a constable for any- thing done in the execution of his office (c), or against (a) Pollock, 5tli ed. pp. 201, 202. (b) Formerly this was also true in regard to married women. Since the Married Women's Property Act, 1882, however, a married woman is no longer under disability, but can sue as if she were a feme sole. See p. 6, supra, and Zotve v. Fox (1885), 15 Q. B. D. 667. (e) 24 Gteo. 2, c. 44, s. 8. 186 LAW OF TORTS. any person for an act done in pursuance or execution or intended execution of a statutory or public duty or authority (d), must be brought within six months from the date of the act complained of. Where a wrongdoer fraudulently conceals his wrongful act, the statute does not begin to run in his favour untU the person wronged discovers the w;rongdoing, or might by reasonable diligence dis- cover it(e). It is important to notice the distinction between wrongs which are actionable per se, and those which are only actionable where the plaintiff can prove that he has suffered actual damage -(/). In the former case, the statutes begin to run from the time when the wrongful act is committed ; in the latter, as for example, where the right to support of land has been infringed, the statutes begin to run not from time of commencement of wrongdoing, but from time of plaintiff's first sustaining actual injury ; consequently, plaintiff is not necessarily barred by the Statute of Limitations from maintaining an action seven or eight years after defendant's beginning to do what ultimately resulted in injury to the plaintiff (g) . (rf) PuUio Auttorities Protection Act, 1893, 56 & 57 Vict. c. 61, 8. 1, sub-s. (a). (e) Gibbs v. Guild (1882), 9 Q. B. D. 59 ; Thome \. Keard, (1895) App. Cas. 495 ; and supra, pp. 45, 46. (/) See iUfra, p. 179. (y) Backhouse v. Bonami (1861), 9 H. L. C. 503. LIMITATION OF ACTIONS. 187 In Barley Main Collier ij Co. v. Mitchell (h), the defendant, owner of a coal mine, worked it in 1868, thereby letting down plaintiff's cottages, which de- fendant repaired. In 1882, owing to the same working in 1868, a further subsidence took place and further damage. Defendant pleaded that the damage took place more than six years after the working of mines had ceased. Held, by the House of Lords, that each subsidence gave a fresh cause of action when arising, and that therefore the action lay. {h) (1886), 80 L. T. 264. INDEX. Abatbment of nuisance, 64, 181. Abeoad, torts oommitted, 182. ACOIDBNT, iue-ntable, 17, 18, 162. caused by latent defect, 153. Act, of God, 17, 18, 162. See Accident — inevitable. of necessity, as ground of excuse, 9, 20. as defence to action for trespass, 44. of state, as ground of excuse, 8, 9, 10. none, as between sovereign and subject, 10. Action, to recover land, 46. of trespass on tbe case, 76. of trover, ibid. of detinue, ibid. of replevin, 77. limitation of right of, 185. ACTOB, definition of, 8. privilege of, ibid. Admiraitt Ootmis, rule of, in cases of collision, 159. Abvbetisembnts, no oopyriglit in, 79. AOENT, eflect of misrepresentations by, 146 — 149. AiB, no specific right to access of, over neighbour's land, 67. stoppage of, when injurious to health, action will lie, ibid, AuEN Enemt, no right to sue, 4. 190 INDEX. Akbassasobs, Fobeion, can sue in English OouH, 7. exempt from civil proceedings, unless privilege waived, ibid. Analysis of another work, no copyright in, 79. Ancient Liqhis, 67 — 69. Animai,, liability of owner for injury by, when naturally ferocious, 164. when not naturally ferocious, 165. AP0L0&T, as defence to action for libel in newspaper or other periodical publication, 98, 125. Abbiteatob, not liable for error of judgment, 11, 12. liable for fraud, ibid. Abeest, who may, and when, 133, 134. by constable, 133. by private person, 133, 134. by person in authority, 134. malicious, 137. Abtibtcjial WATEBOoijBSES, rights of riparian proprietors as to, 55—57. Assault, definition of, 130. liability for, in cases of forcible entry, 46. Assault and Batteet, when justifiable, 131. defence to action for, under 24 & 25 Vict. c. 100, ss. 42 — 45.. 132. Atjthobity op Law, as defence to action for trespass, 44. Bailee, when able to sue for trespass to or conversion of goods, 76. when liable for conversion, 72. Bailob, when able to sue for trespass to or conversion of goods, 76. Baebed Wiee, when a nuisance, 60. Baeeistee, absolute privilege for defamatory statemeutsliy, 109. INBEX. 191 Battery, deflnition of, 130. Bmi OF Exchange, title to, can be acquired from person who taa no title, 73. BuimniQS, right of support to land weighted hy, how acquired, 60. right to support of, from adjoining buildings, 60, 61. Campbell's (Loed) Libel Act (6 & 7 Vict. o. 96), s. 2.. 125. Campbell's (Loed) Act (9 & 10 Vict. c. 93), 28, 37, 158, 174— 176. who can sue under, 174 — 176. damages recoverable under, 175, 176. time within which action must be brought, 175. Caeeiages, collision between, 152, 160. Caeeiee of passengers, duty of, 153, Cattle, damage feasant, distress on, 181. must be kept from straying, or owner liable for probable consequences, 163. owner not hable for their straying while being driven along highway, 164. injuries to, by dog, 165. CAtTBE, proximate, in cases of contributory negligence, 156, 157. Chaeaotee of servant, information as to, when privileged, 115, 116. C tttt.t) , contributory negligence of, 158, 159, 161. Cltjb Committee, acts of, when privileged, 13, 14. College, acts of, when privileged, 13. Collision, between ships, Admiralty rule in cases of, 159. between carriages, 152, 160. Command of another, no excuse for unlawful act, 10, 21, 22. Comment, fair, 100 — 105. See Fair Comment. not allowed till termination of judicial proceedings, 123. Company, liability of, for torts, 7, 21—25, 27, 28. 192 INDEX. CoMPANT Peomotee, liability of, 145, 146. OoNOEALED Feauh, effect of, with, regard to limitation of actions, 45, 46, 186. Consent to the infliction of hodily harm, 19. OoNSEauENCES, natural and probable, liability for, in cases of negligence, 160, 151. Constable, action must be brought against, within six months of act complained of, 12, 13, 185, 186. powers of, to arrest, 133. privileges of, 12, 13. CONSTEUOTITE, entry, what is, 42. possession, what is, 43. CoNTBAOT, breach of, how distinguished from tort, 2. CONTEACTOE, liability of employer for torts of, 27 — 30. how distinguished from servant, 27. CoNTErBTraiON, none between wrongdoers, 184. CONTErBUTOET NEQIilQENOB, what is, 156. Admiralty rule in cases of, 159. of children, 158. plaintiff only prevented from recovering i£ negligent at the final stage, 156, 157. CONVBBSION, definition of, 69. dominion must be real and effectual, to render liable for, 71, 72. distinguished from trespass, 69, 70. refusal to deliver on demand, evidence of, 71. remedies for, 76, 77. what renders a person liable for, 71. when bailee liable for, 72. when bailor can sue for, 76. who is entitled to sue for, ibid. CONTICT, cannot generally sue, 4. CoNVioiiON of -thief, effect on ownership of stolen property, 74. INDEX, 193 COPTEIOHT, definition of, 78. effect of non-registration of, ibid. how assignable, ibid. none in advertisements, 79. analysis of another work, ibid. immoral or libellous work, ibid. time for which it continues, 78. COEPOBATION, KabiHty of, for torts, 7, 21—25, 27, 28. when action for libel or slander maintainable by, 98. CotTNSEL, absolute privilege for defamatory statements by, 109. CotTNTY CounciLLOE, privilege of, for Ubel or slander. 111. CoTiESE of employment, what is, 22 — 26. Cotiet-Maetiai;, privilege of members of, 11, 112. Ceimh, how distinguished from tort, 1 . whether prosecution for, necessary before action for tort, 167—170. Cbown, tort by representative of, 9, 10. Damage, not necessary in action for trespass, 42. special, what is, in action for slander, 85. Damages, nominal, 179. ordinary, ibid. exemplary or vindictive, 83, 179. amount and apportionment of, under Lord Campbell's Act, 175, 176. amount of, recoverable under Employers' Liability Act, 1880.. 37, and under Workmen's Compensation Act, 1897.. 40. incidentally arising from act authorized by statute, 14 — 17. when arising from distinct causes of action can be sepa- rately recovered, 180. measure of , 179, 180. Damitom sine injubia, 3. Danobeous Things, liability for damage caused by, 161—166. F. 13 194 INDEX. Death, of iajured party, effect on action for tort, 173 — 177. of tort-feasor, effect on action for tort, 177, 178. Deceit. See False Sepresentation ; Fraud. which does not deceive is not fraud, 144. Defamation. See Libel; Slander. Dbpbot, latent, accident caused by, 153. of plant, knowledge of, and acquiescence in, by workman, effect of, 35, 36, 39. Defence of Pbeson oe Peopeett, assault justifiable in, 20, 131. Detintte, action of, 76, 77. Dieeotoes of Company, liability of, 146, 146. DisABiLiTT, personal, with regard to limitation of actions, 46, 186. Disoipunaet Powees, as ground of excuse, 9, 14. Disoeetionaey Powee, effect of, where conferred by statute, 16, 17. Dispossession, definition of, 45. remedy for, ibid. Disteess, effect of misfeasance in course of, 47. on cattle damage feasant, 181. Doa, injury by, to sheep or cattle, scienter need not be proved, 165. JDeuqs, poisonous, liability for, 166. Hasement, 53, et seq. Ejectment, action of, 46. See Recovery of Land. Employees' Liability Act, 1880 (43 & 44 Viot. c. 42), 33—39, 176, 177. workman can contract himself out of, 38. Employment, master Hable for torts of servant in course of, 22 — 28. liability of master for injuries incurred by workman during, 30 — 41. usual course of, what is, 22 — 26. INDEX. 195 Enemy, alien, no right to sue, 4. EuaiNE, liability for damage caused by sparks from, 15, 16, 165, 166. must not be erected within twenty-five yards of carriage way unless concealed, 49. Entet, forcible, 46. in cases of trespass, (1) actual, 42. (2) constructive, iUd. Excuse, various grounds of, 8 et seq. Execution, as affecting title to goods, 75. Executive Acts, as ground of excuse, 8, 12, 13. Executors, of injured party, when entitled to bring action, 173 — 177. of tort-feasor when liable to action, 177, 178. Exempt. A -R,Y Damages, 83, 179. ExEEoiSB OF Common Eights, as ground of excuse, 9, 18, 19. Explosives, liability for damage caused by, 166. Expulsion of trespasser, 42, 46, 181. Eaib Comment, as a defence to an action for libel or slander, 100 — 105. functions of judge and jury in cases of, 100, 101. limits of, 101. matter oonuuented on must be actual fact, 103. on a matter of public interest, what is, 104, 105. False Impeisonment, 133, 134. defences to action for, ibid. how distinguished from malicious prosecution, 136, 137. what constitutes, 133. Ealse Eepkesentation, what amounts to, 138. no defence to action for, that defendant had nothing to gain by it, 142. concerning the credit of another must be in writing and signed to render it actionable, 143. when made by agent, liability for, 146 — 149. 13(2) 196 INDEX. Feliot Sbevant, injviry by, liability of master for, (1) at common law, 30 — 33. (2) under Employers' Liability Act, 1880.. 33— 39. (3) under Workmen's Compensation Act, 1897. .39 — 41. Feeocious Animais, liability of owner for injury by, 164, 165. EnroEE, right of, 70. FlEB, liability for damage caused by, 165. caused by sparks from engine, liability for, 15, 16, 165, 166. Reeaems, liability for damage caused by, 166. FoEOiBLE Entet, 46. rOEEIUN SOVEBEIGN, can sue in English Courts, 7. exempt from civil proceedings unless privilege waived, ibid. absence of dishonest motive no excuse, nor that defendant has nothing to gain by lying, 142. concealed, effect of, with regard to limitation of actions, 45, 46, 186. definition of, 138. expression of opinion is not, 140. liability of arbitrator for, 11, 12. liability of agent for, 146. liability of directors and company promoters for, 145, 146. of agent, liability of principal for, 26, 146—149. mere non- disclosure is not necessarily, 140, 141. there must be representation false in itself, or combined with suppression of truth, 140. the representation must be made with knowledge of false- hood, or in reckless disregard of truth, 141. no action for, when defendant honestly believed statement to be true, 141, 142. of servants, liability of employer for, 22. statement need not be made to the injured party, but must be made with intention that he should act upon it, 144. it must actually deceive him, and the inj ury must be the immediate, not the remote, consequence of such statement, ibid. Eeauds, Statute or, 29 Car. II. c. 3, s. 4. .143. IJfDEX, 197 FuBNiSHED House, where' action lies for fraud in letting of, 141, note {[). Gbstuees by deaf and dumb person are a slander, not a libel, if defamatory, 85. OeAut, rights to water, acquired by, 55 — 57. support, acquired by, 60. Ught, acquired by, 67. Guest, injury to, 51. HioHWAT Act (5 & 6 Will. 4, c. 50, s. 70), 49. HoESB, sale of, in market overt, 75. House, liability for nuisance caused by non-repair of, 65, 66. HirSEAlfD, may be joined with wife in action against wife for tort committed during marriage, 6. liability of, for torts committed by wife, ibid. for torts committed by bim against wife's separate property, Hid. Identipioation, doctrine of, 159 — 161. Immobai, Woek, no copyright in, 79. Impeisonmbnt, false, 133, 134, 136, 137. Inevitaele Accident, as ground of excuse, 9, 17, 18. i Infant, when liable for tort, 4. may not take advantage of his own fraud, 5. disability of, with regard to limitation of actions, 185. Injunction, to restrain nuisance, 64. publication of libel, 126, 127. when granted, 180. Injueia sine damno, 3. Inns of Couet, acts of, when privileged, 13. Innuendo, 92. Inteebuption for less than a year is no bar to the operation of the Prescription Act with regard to ancient lights, 68. 198 IIJDEX. JoiNBEE of husband for wife's tort, 6. Joint Tenaitts, liability of, to one anotter, for trespass, 44. Joint Toet-keasoes may be sued jointly or severally, 183. JUDOE, privilege of, (1) in superior Court, 10, 11, 108, 110. (2) in inferior Court, 11, 108—110. defamatory statements by, when on bench, absolutely privileged, 108, 110. province of, (1) in action for libel or slander, 89, 94, 95, 100, 101, 113. (2) in action for negligence, 154. liable for refusing bill of habeas corpus in vacation, 1 1 . bill of exceptions, ibid. JuDiCTAT. Acts, as ground of excuse, 8, 10, 11. Jthdicial PEOOBEDIuaS, defamatory statements in course of, absolutely privileged, 108—110. reports of, conditionally privileged. 111, 121 — 123. Jtteisdiction, when action will lie for tort committed outside the, 182, 183. liability of magistrate acting outside his, 11, 110. JtlET, province of, in action for libel or slander, 89, 94, 95, 100, 101, 113. negligence, 154. defamatory statements by, absolutely privileged, 108 — 110. Jus Tbetii, 45. Justice op the Peace, privileges of, 12, 13. when liable for defamatory statement, 110. liability of, when acting outside his jvirisdiction, 11, 110. Jtjstibtoation' as a defence to an action for libel or slander, 98—100. See Libel. Land of Another, position of person injured on, 48 — 53. recovery of, evidence in action for, 46. Lajibloed, when action of trespass is maintainable by, 43, 44. liability of, for misfeasano^jn. distraining, 47. for damage caus!b^,by ruinous jiremises, 65, 66. INDEX. 199 Lav of Libel Amendment Act, 1888 . . 124, 125. LawfuIi Business, right of person coming on, to safe condition of premises, 51 — 53. Leate and Licence, as ground of excuse, 9, 19. as defence to an action of trespass, 44. for assault, 20, 131. Libel, what is a, 84 — 89. burden of proof on person who alleges that words are defamatory, 90. distinguished from slander, 84 — 86. damage presumed in oases of, 84, 85. how to determine whether a statement is defamatory, 89. injunction. Court may restrain publication by, 126. how obtained, ibid. innuendo, where necessary, 92. judge, province of, in actions for, 89, 94, 95, 100, 101, 112, 113. jury, province of, in actions for, ibid. liability for repetition of, 96, 97. publication of, 93 — 95. See Fublication. special defences in action for, 98. justification, 98 — 100. fair comment, 100 — 105. See Fair Comment. privilege, 106 — 125. See Frivikr/e. apology, 98, 125, 126. what plaintiff must prove where words are not defamatory in their ordinary sense, 91. w^ords must refer to some particular individual, 86. must affect plaintiff's character, or professional or trade reputation, 87, 88. • must refer to plaintiff himself, 87. Libellous Woeks, no copyright in, 79. LiBEEUM Tenementum as defence to an action for trespass, 44. Licensee, definition of, 50, 51. position of, with regard to injuries suffered by, ibid. Light, right to, 67—69. how acquired, 67, 68. extent of, 68, 69. LiQHT AND Air, right to, a misleading phrase, 66, 67. 200 INDEX. Limitation, Statutes of, 45, 46, 185, 186. time runs, (1) from commission of wrongful act where wrong actionable ^er se, 186. (2) from plaintiff's first sustaining actual injury, where wrong only actionable on proof of special damage, Hid. time of, under Employers' Liability Act, 37. effect of various personal disabUities, 185. Loss OF Seeviob, 80 — 82. Lunatic, disability of , with regard to limitation of actions, 185. Machineet, erection of, within twenty-five yards of carriage way illegal, unless concealed, 49. Mamob, in fact, 106. in Law, ibid. Malicious Abeest, 137. MAUCioirs Peosecution, 134 — 137. action of, what plaintiff must prove in, 134 — 136. lies against a corporation, 7, 136. distinguished from false imprisonment, 136, 137. Maeket Ovbbt, meaning of, 74. effect of sale in, 72 — 75. Maeeied 'Woman, now under no disability with regard to limitation of actions, 185, note (S). liability of, 6. may sue or be sued as feme soUy ibid. may sue husband in tort for protection of separate pro- perty. Hid. Maeeied Women's Peopeett Act, 1882 (45 & 46 Vict. c. 75), 5. Master, liability of, for servant's tort, 22^27. fraud, 26. to servant for injuries during service, 30 — 39. when servant acts contrary to orders, 22, 25, 26. INDEX. 201 Mastbe and Seevant, ■when action lies against third party for loss of service, 80—82. relationship of, as afiecting action for seduction, 82, 83. Mattee of Pubuo Inieeest, what is, 104, 105. Maxims of Law, " Actio personalis moritur cum persona," 173. " Omnia prsesumuntur contra spoliatorem, " 71. " Sic utere tuo ut aUenum non Isedas," 161. " Volenti non fit injuria," 19, 36, 39. Mayhem, 131. Meechaht Ship, when master of, may use force, 14. Meeohant Shippino Act, 159. MisBEPBESENTATiON, 138 et seq. See Fraud. of agent, (1) liability of agent, 146. (2) liability of principal, 26, 146—149. Neoessitt, acts done of, as ground of excuse, 9, 20. as defence to an action for trespass, 44. Negligence, definition of, 151. contributory, 158. See Contributory Negligence. extent of liability for, 150 — 153. knowledge of and acquiescence in, by workman a bar to action under Employers' Liability Act, 35 — 37. of railway company, 15, 16. province of judge and jury in action for, 154. when defendant must prove that he was exercising due care, ibid. what plaintiff must prove in action for, 154 — 156. when presumed in action for, ibid. Negotiable Insteument, 73. title to, can be acquired from person who has no title, ibid. Newsvendoe, liability of, for libel, in paper he sells, 97. NoEMAL Right to Sue, exceptions to, 8 — 20. Notice op Action, under Employers' Liability Act, 37, 38. Workmen's Compensation Act, 39. 202 INDEX. NUISAUOE, definition of, 63. abatement of, 64, 181. as defence to action for trespass, 44. public, 63. private, 64. remedies for, 64. causing damage to property, 65. personal discomfort, ibid. tbat act is otherwise beneficial is no defence to indict- ment for, 66. nor that plaintiff himself came to the nuisance, ibid. by reason of ruinous condition of premises, 65. OOOTJPIEE, liabOity of, for ruinous condition of premises, 65. •when action for trespass maintainable by, 43. Omnia PRDSuirouTUE contea seoliatoeem, 71. OwNEE, when action for trespass maintainable by, 43. Pabent, right of, to exercise reasonable force and restraint, 14. to chastise child, 134. Paeliament, absolute privilege of debates in, 107. Paeliamentaey Repoets, privilege of, 107, 123, 124. Passenoeb, rights of, 153, 170 — 173. Patent, what is a, 78. time for which it runs, ibid. Peeson, torts to the, 130—137. liability for injuries to, when entering premises on lawful business, 51 — 53. when injured on land of another, 48 — 53. injured, efFeot of death of, 173 — 177. private, powers of, to arrest, 134. disability of, when beyond seas, 185. Poisonous Dettss, liability for, 166. Possession, actual, 43. constructive, ibid. INPEX. 203 PovEES CONPEEEED BY Law, as ground of excuse, 9, 14 — 17. Peemises, liability for ruinous state of, 6^. Peesoeiption, rights to water acquired by, 55. support acquired by, 60. light acquired by, 68. Peinoipai. ahd Agent, liability of principal for misrepresentation of agent, (1) when principal knows representation to be false, 146—148. (2) when principal thinks representation to be true, 148, 149. PEmLEaE, of persons acting under statutory powers, 12, 13. exercising quasi-judicial powers, 13, 14. as defence to action for libel or slander, 106 — 125. is absolute (malice immaterial) in three cases, 106 — 112. which are : — (1) parliamentary proceedings, 107. (2) judicial proceedings, 108 — 111. (3) naval and military affairs. 111, 112. is qualified (rebutted by proof of actual malice), 106, 107, 112 — 125, in the following cases : — I. Duty, 113—119. A. Communication in pursuance of duty owed to society, 113 — 118. a. Character of servants, 115, 116. (3. Other confidential communications of a private nature, 116, 117. if volunteered, privilege not lost, 115. presence of third parties does not necessarily destroy privilege, 117. unnecessary publication may destroy privilege, 117. nature of the duty, 113, 114. B. Communications made in self-defence, 118, 119. _ _ ■ a. To protect defendant's private in- terests, 118. 0. Provoked by previous attack, ibid. II. Interest — i. e.., communications to protect com- mon interest, 119, 120. nature of, 120. how lost, 120, 121. 204 INDEX. Peitileqb —continued. is qualified (rebutted by proof of actual malice) in the fol- lowing cases — continued. III. Fair reports of proceedings, 121 — 126. A. In Courts of Justice, 121—123. common to individuals and newspapers, 121. of fa: jofflrts proceedings, 121, 122. B. In Parliament, 123, 124. C. In public meetings btj Law of Libel Amend- ment Act, 1888, s. 4.. 124, 125. bow lost, 124. Pbomissoet Note, title to, can be acquired from person who has no title, 73. Peomotees of Compant, liability of, 145. Pbopeett, assault justifiable in defence of, 131. torts to, 42—79. Peoseouhon, malicious, 134 — 137. See Malicious Prosecution. Peoximatb Cause, in cases of negligence, 156, 157. PuBuc Capacity, what acts done in, privileged, 9 — 13. Public Inteebst, matter of, what is a, 104, 105. Public Opmoee, when liable for acts done in execution of process of law, 12. time Within which action must be brought against, 12, 13. Public Peace, assault justifiable in preservation of, 131. Publication, of libel or slander, 93 — 96. always necessary, 93. what is, 93—96. none by husband to wife, 94. by wife concerning husband is, ibid. by mistake, 95. functions of judge and jury, as to, 94, 95. Quabet, if within fifty yards of highway, must be fenced, 45, 49. QuABi-JunioiAL Acts, when privileged, 9, 13, 14. INDEX. 2&§ Batl-wat Compaut, liability of, for acts of servants, 24, 25. uegHgenoe of, 15, 16, 27, 28, 153, 156—158. Eatefication, subsequent, only possible wbere act done at time on principal' s behali, 21. Reasonable and Peobable Cause, plaintiff must prove absence of, in action for maMcious prosecution, 136. Recaption, 75, 181. as defence to action for trespass, 44. Recoveet of Land, action for, 45. time within which it must be brought, 45, 46. Re-entey, peaceable, 46, 181. Release, to one joint tort-feasor no discharge of others, 183. Remedies, judicial, 179. extra-judicial, 181. Remedt of private person for infringement of special statutory duty, 181. Repetition of libel or slander, HabiUty for, 96. Replevin, action of, 77. where brought. Hid. time within which to be brought, ibid. Repoets, of parliamentary proceedings, privilege of, 108, 123, 124. of judicial proceedings, privilege of , 111, 121 — 123. of «a; ^arte proceedings, privilege of , 121, 122. in newspaper of proceedings at pubHo meetings, when privileged, 124, 125. Reybesionee, when action for trespass can be maintained by, 43, 44. Rioht, in personam,, infringed by breach of contract, 2. in rem, infringed by tort, ibid. 206 INDEX. ElPABIAN PeOPEIETOB, rights of, 54 — 59. over artificial watercourses, 55—57. over natural streams — • (a) above ground, 54, 55. (S) below ground in clearly defined channels, 55. (■/) where percolating, or in undefined channels, 67—69. Ettinous Condition oi' Pebmises, liability for, 65, 66. EiriNOUS HoTTSTS, no action for non-disclosure of state of, if let unfurnished, Ul. contra if let furnished, 141, note {T). Sale op Gooes Act, 1893. .73— 76. Sale op Goods in Maeeet Oveet, 73, 74. soienteb, 165. Sedttotion, action of, 82, 83. generally none by servant against master, 83. See Master and Servant, Seie-eepenoe, assault justifiable in, 20, 131. as ground of excuse, 9, 20. Sepaeatb Peopeett op Wipe liable for her torts, 5, 6. Seevant, who is to be deemed a, 27. who is, within Employers' Liability Act, 33. within Workmen's Compensation Act, 39. how distinguished from independent contractor, 27. not liable for conversion on refusal to deliver goods on demand, 71. liability of master for torts of, 22 — 30. fraud of, 26, 146—149. injuries incurred by, during service, 30—41. liability for torts committed on master's behalf, or "by master's orders, 21, 22. Seevioe, loss of, 80—83. when presumed in action for seduction, 82. no excuse for commission of wrong, 10, 21, 22. INDEX. 207 Sheep, injuries to, by dog, 165. Ships, collision between, Admiralty rule in cases of, 159. Sic -uteee tuo ut alientjm non l^das, 161. Slandee. See Libel. ■wbat is a, 84. Court can restrain by injunction, 126 — 128. how obtained, ibid. repetition of, liability for, 96. special defences in, 98 — 125. See Zibel. special damage must usually be proved, 85, 96. where damage presumed, 96. of goods, 87, 88, 129. of title, 128. Slaudee of Women Act, 1891. .96. SoLioiTOE, privilege of, for defamatory statements, 109, 117. SOTEEEIQN, command of, no excuse, if command unlawful, 10. foreign, can sue in English Court, 7. exempt from civU proceedings unless privilege waived, ibid. Speino Gtjns, illegal, save in dwelling-house by night, 49. trespasser wounded thereby can maintain action, ibid. State, Act of, as ground of excuse, 8 — 10. none between sovereign and subject, 10. Statute, limitation of action against person acting tinder, 185, 186. protection to person acting under, 12, 13. how far a defence to action for nuisance, 14 — 17. effect of remedy given by, on party injured by breach of, 181, 182. where no remedy given by, position of party injured by breach of, ibid. effect of discretionary power conferred by, 16. STATtTTES OF LIMITATION, 45, 46, 185 — 187. Stolen Peopeety, effect of conviction of thief on ownership of, 74. Supeeioe Couet, definition of, 10. privilege of judges of, 11, 108 — 110. 208 ' INDEX. SuppOET, Right to, independent of negligence, 61. of land unweighted by buildings, 59. •weighted by buildings, how acquired, 60. Tenahts in Common, liability of, to one another, for trespass, 44. Tbnteeden's (Loed) Act (9 Geo. IV. c. 14), 143. Thief, efEect of conviction of, on ownership of stolen property, 74. can sometimes give good title to stolen property, 73. Title, to chattels personal cannot as a rule be acquired from. person who has no title, 72, 73. exceptions to above rule, 73 — 75. to goods, when judgment affects, 75. TOET, distinguished from crime, 1 . breach of contract, 2. breach of certain personal relations, ibid. founded on contract, 170 — 173. committed abroad, when actionable here, 182, 183. newness of, no objection to action, 2. method of proceeding where tort is also a crime, 167 — 170. ToET-FEAsoE, effect of death of, 173, 177, 178. Tbadb Mark, definition of, 79. property in, ibid. Tebspass, to land, definition of, 42. damage need not be proved in action for, Hid, when action maintainable for, 43. remedies for, 42. time within which action must be brought, 45. who may bring action for, 43, 44. defences to action for, 44. to goods, definition of, 69. distinguished from conversion, 70. who may sue for, 76. remedies for, 76, 77. on the case, action of, 76. INDEX. 209 ai initio, 46. injury to, liability for, 48. expulsion of, 42, 46, 181. " Tbespassees wni be PbosboOted," ejBEeot of such notice, 47. Teovbe, action of, 76, 77. Tetjth, as defence to an action for libel or slander, 98^100. to a prosecution, 98, note (m). Univeesiiibs, acts of, when privileged, 13. ViKDiOTi-VE Damages, 83, 179. Volenti non fit Injtjeia, 19, 36, 39. ■VoLTTNTEBB, liability for injury to, 32, 33. WAEEAiTT, justice's, protection of constable acting under, 12. Waste, definition of, 61. who are Uable : voluntary, 62. permissive, ibid, legal, ibid. equitable, ibid. Watbe, flowing through, or under, land, rights with regard to, 54—69. drawing off, 58, 59. fouling, 58. percolating, rights with regard to, 57, 58. escape of stored, liability for damage caused by, 161 — 163. ■Wateeooueses, natural, 54, 55, 57—59. artificial, 55 — 57. "Wipe, torts by, 5, 6. torts against, 6. -,,_- .-^,— by husband,- J5j«f.—— . liability of- husband for tbrts of, ibid. P. 14 210 INDEX. WiKBOWs, existing right, to ligtt not lost by alteration of, 68, 69. "WiEB, barbed, -when a nuisance, 50. WiTHESS, absolute privilege of, 108, 109. ■Women, slander of, 96. WOEKMAU-, rights of, (1) at common law, 31^33. (2) under Employers' Liability Act, 1880.. 33—39. (3) under Workmen's Compensation Act, 1897. . 39—41. Wobemen's Compensation Aot, 1897. .39— 41. Weonoeoee, ratification by principal, 21. effect of death of, 173, 177, 178. liable for natural and probable consequences of his aot, 179, 180. liable, in some cases, for special consequences, 180. Weongdoeeb, no contribution between, 184. joint, may be sued jointly or severally, 183. PBINTEn BY C. f . BOWOEIH, OBEAT NEW SIBEET, FBTTEB LANE, E.G. STUDENTS' LAW BOOKS,— SWEET AND MAXWELL, LTD., Guide to the Bap. — A New Guide to the Bar, containing the most recent _, llegulations and Examination Papers, and a Critical Essay on the Present Condition of the Bar of England. By M.A. and LL.B., Barristers-at-Law. Second Edition. 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