(JunteU Ham ^rljual lOthranj KD 1946 C 3 .K36 UniVerS " y Ubrary * S !ifi^iiniiiiiSiiiiiiffi, l Hlustrative °* the 3 1924 ''022 l,,, 362 h 606 BI Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022362606 Uontion: C. J. CLAY and SONS, CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, AVE MARIA LANE, AND STEVENS AND SONS, Ltd, 119 and 120, CHANCEBY LANE. ffilaBjDfa: 60, WELLINGTON STREET. fLjipjia: V. A. BROCKHAUS. ©efa Sorft: THE MACMILLAN COMPANY. aSomiag anS Calcutta: MACMILLAN AND CO., Ltd. [All Rights reserved.] A SELECTION OF CASES ILLUSTRATIVE OF THE ENGLISH LAW OF TORT BY COURTNEY STANHOPE KENNY, LL.D. OF LINCOLN'S INN, BARRISTER-AT-LAW ; READER IN ENGLISH LAW IN THE UNIVERSITY OE CAMBRIDGE; LATE M.P. FOR BARNSLET. '«:'/ CAMBRIDGE: AT THE UNIVERSITY PRESS. 1904 PRINTED BY J. AND 0. F. CLAY, AT THE UNIVERSITY PRESS. PREFACE. npHE. favourable reception given to my volume of cases on -*- the Law of Crime leads me to offer to the public a similar volume upon the Law of Tort. On this subject I have, for up\#ards of ten years past, delivered an annual course of lectures at Cambridge to men entering on the study of English Law. To arouse in their minds, from the outset, an intelligent interest in so difficult a subject as Tort and in the unfamiliar art of interpreting judiciary law, I have found it necessary to make constant reference to actual cases. For the purpose of such references, I have sought far and wide for cases that — from the nature of their facts or from the excellence of the judgments — were likely to impress the student's memory with a vivid illustration, or a terse exposition, of any important principle. Such decisions I have not hesitated to take from America or India, if they laid down English doctrine. And I have sometimes found it useful to supplement even the reports of our own English cases by adding details from the contemporary newspapers. But experience has shewn me that difficulties in obtaining ready access to .law-books frequently hamper the student in utilizing his references to Reports, and make it highly desirable for him to have on his own shelves some compact collection of suitable cases. My present book aims at giving him, within the vi Preface. compass of a portable volume, two hundred decisions upon note- worthy points in the Law of Tort. The longer cases I have usually abridged ; but (I hope) in such a manner that the reader will still possess a complete statement of the essential facts, and also of the salient arguments for and against the judgment. In arranging the sequence of topics, I have borne in mind that most of those who use this book will read it in connection with Sir Frederick Pollock's invaluable treatise. The compilation of the collection would have been impossible had not the Incorporated Council of Law Eeporting generously given me leave to make use of their Reports — a permission for which I must return my most cordial acknowledgements. . My thanks are also due to my friend and former pupil, Mr R. W. Kittle, LL.B., of Lincoln's Inn, for the ready kindness with which he gave me valuable aid in preparing the book for the press. COURTNEY S. KENNY. Downing College, Cambridge, August, 1904. CONTENTS. PAET I. GENERAL PRINCIPLES. , PAGE SECTION I. Liability tor Tort 1 SECTION II. Liability as affected by Status ... 60 A. Infancy 60 B. Corporate Bodies 65 C. Principal and Agent 70 D. The Unborn Child 105 E. The Effect of Death 108 SECTION III. General Exceptions to Liability ... Ill A. Acts of State Ill B. Judicial Acts 119 C. Executive Officers •• 122 D. Special Legal Authorization 127 E. Inevitable Accident 140 F. Leave and Licence 151 G. Self-defence against Wrongs 158 H. Necessity 161 I. Exercise of Unqualified Rights . . . . 170 SECTION IV. Forensic Remedies for Torts .... 195 Damages 195 Injunctions 22< 3 Torts committed abroad 228 viii Contents. PART II. THE VARIOUS KINDS OF TORTS. TAGE SECTION I. Breaches or Rights over the Person . . 237 A. Assault, and Battery 237 B. False Imprisonment 254 C. Breaches op Family Bights 269 Seduction . 270 SECTION II. Breaches op Bights to Reputation . . . 27'8 Slander 278 Publication 296 Fair Comment 309 Privilege 318 Truth 352 No right to Privacy ' . 364 SECTION III. Breaches op Bights over Property. . . 368 (1) Trespass 368 Justifications for Trespass 392 (2) Conversion 414 SECTION IV. Breaches op General Rights .... 435 Chapter I. Nuisance . . 435 Ancient Lights '. . 448 Abatement . . ' 459 Injunctions 467 Chapter II. Wrongs op Fraud and Malice . . . 473 A. Deceit 473 B. Slander op Title 502 Trade names 509 C. Malicious Prosecution 511 D. Miscellaneous Wrongs op Malice . . . 517 Maintenance 517 Procuring a breach of contract .... 520 Conspiracy 527 Contents. IX PAGE Chapter III. Negligence 531 Measure of Diligence 538 Evidence 549 Contributory Negligence 570 Chapter IV. Breaches op Duties < of Extraordinary 1 Eesponsibility 587 (1) Duties op Insurance 587 Firearms 587 Eire 589 Beasts 593 Artificial accumulations 600 (2) Duties op Possessors op Structures . . . 612 To persons on business 612 To bare licensees 621 To trespassers 623 PART III. RELATIONS BETWEEN TORT AND CONTRACT . 627 INDEX OF CASES. The names printed in capitals belong to cases that are reported in this collection ; those printed in italics belong to cases that are briefly summarized, either in the reported cases or in the notes to them. A. Abrath v. N. E. Ry. Co. Adam's Case Adamson v. Jarvis Allen v. Flood Anderson v. Gorrie Anonymous Anthony v. Haney Armory v. Delamirie Ashby v. White Ashley v. Harrison Assop v. Yates Att. Gen. v. Brighton „ v. Cambridge „ v. Metropolitan] Att. Gen. v. Sheffield Austin v. G. W. Ry. Co. Ayre v. Craven B. Back v. St ace y Baldwin v. Cole Barnes v. Ward Barwick v. English J. S. Bank Basely v. Clarkson Beaulieu v. Finglam Bell v. Midland Ky. Co. Benjamin v. Storr "Bernina," The Bird v. Jones page page 512 Blades v. Higgs 403 459 Blytk v. Birmingham W. W. Co. 545 222 Blyth v. Topham 531 180 Boss v. Litton 572 121 Boxsius v. Goblet" 335 512 Bradford (Mayor) v. Pickles 8 404 British M. B. Co. v. Charnwood 84 391 Broadbent v. Bamsbotham 171 202 Bromage v. Prosser 306 362 Brown v. Kendall 146 39 Browne v. Dawson 406 445 Burnard v. Haggis 63 471 Buron v. Denman 115 -.127 Bushell v. Miller 416 471 Butler v. Manchester, S. & 632 L. Ry. Co. 251 283 Byrne v. Boadle C Cameron v. Nystrom 562 94 448 Campbell v. Spottiswoode 309 421 Cane v. Golding 503 623 Capital C. B. v. Henty 356 '71 Case or the Six Carpenters 399 375 Case of Thorns 379 589 Case of Tithes 376 218 Chandler v. Broughton 5 436 Chaplin v. Hawes 571 581 Chasemore v. Richards 170 260 Chinn v. Morris 255 XII Index of Oases. PAGE F. PAGE Citizens' Co. v. Brown 351 Fell v. Brown 547 Clark v. Molyneux 345 Fenna v. Clare 465 Clayards v. Dbthiok 567 Filburn v. P. P. Co. 595 Cleary v. Booth 244 Filliter v. Phippard 591 Clement v. Chivis 289 Fletcher v. Rylands 600 Cobb v. G. W. Ry. Co. 535 Fouldes v. Willoughby 414 COBBETT V. CLUTTON 419 FODLGER V. NEWCOMB 280 Cockcroft v. Smith 246 Fodlkes v. M. D. Ry. Co. 626 Cole v. Turner 240 Francis v. Cockrell 618 Colls v. Home & Col. Stores 452 G. Cooke o. Forbes 467 Cooper v. Willomatt 418 Gee v. Metrop. Ry. Co. 573 Corby v. Hill 621 Gibbons v. Pepper 143 Cotton v. Wood 548 Giles v. Walker 532 Countess of Rutland's Case 126 Glasspoole v. Young 426 Coward v. Baddeley 242 Gloucester Grammar School Cox v. Bdrbidge 37 Case 174 Coxhead v. Richards 337 Glover v. L. S. W. Ry. 33 Crowhurst v. Amersham 610 Goodson v. Richardson 411 Cutts v. Spring 390 Gorris v. Scott 15 D. Oracey v. Belfast T. Co. 87 Graham v. Peat 389 Davies v. Mann, 576 Grainger v. Hill 258 Davies v. Williams 463 Gregory v. Brunswick 529 Dean op Exeter v. Serle 76 Grote v. C. H. Ry. Co. 618 Dean v. Keate 546 Grove v. Nevill 60 De Bodredgam o. Arcedekne 219 Derry v. Peek 491 H. Dews v. Riley 123 Hadley v. Baxendale 207 Dickson v. Reuter's T. Co. 627 Hague v.' Wheeler 174 Bike's Case 164 Halestrap v. Gregory 45 Dixon v. Bell 587 "Halley," The 228 Dobell v. Stevens 500 Halsey v. Brotherhood 506 Doolincf v. Budget Co. '504 Hambly v. Trott 108 Doyley v. Roberts 283 Hard/man v. Booth 432 Dulieu v. White 57 Harris v. Brisco 517 E. Harrison u. Rutland 382 Hammack v. White 551 Eastern S. A. T. Co. v. Capetown 605 Heaven v. Pender 617 E. I. Ry. Co. v. Kalidas 550 Hebditoh v. MacIlwaine 343 Ellis v. Loftus Iron Co. 43 Hedges v. Tagg 275 Ellis v. Sheffield G. C. Co. 103 Helsham v. Blackwood 352 Emmens v. Pottle 303 Hern v. Nichols 70 Entick v. Carrinqton 369 Hickman v. Massey 386 Everet v. Williams 221 Hilbery v. Hatton 425 Index of Cases. Xlll Hill v. Bateman Hoey, v. Felton Hogg v. Wabd Hollins v. Fowler Holmes v. Mather Home & Col. Stores v Howard v. Harris Huckle v. Money Hunt v. Boston Hyde v. Graham I. Indermaur v. Dames Innes v. Wylie J. Janson v. Brown Jennings v. Eundall Johnson v. Pie Jones v. Boyoe Jones v. Brown K. Kelk v. Pearson Kelly v. Sherlock page 122 52 262 428 1 Colls 452 420 215 417 396 612 237 159 61 60 565 269 449 210 Lane v. Cox 533 Lanfranchi v. Mackenzie 454 Langendorffv.PennsylvaniaRy.Co. 569 Langridge v. Levy 476 Leame v. Bray 144 Lemmon v. Webb 459 Limpds v. L. G. Omnibus Co. 79 Loeschrnan v. Machin 418 Lumley v. Gye 520 Lynch v. Knight 285 Lynch v. Nurdin 27 M. Machado v. Fontes 232 Madras Ry. Co. v. Zemindar 131 Malachy v. Soper 503 May v. Bdrdett 593 page 22 596 5 213 314 221 M c Dowall v. G. W. By. M c Kone v. Wood McLaughlin v. Pryor Merest v. Harvey Merivale v. Carson Merryweather v. Nixon Mersey Docks Trustees v. Gibbs 65 Metropolitan Asylum v. Hill 133 Metropolitan Ry. Co. v. Jackson 45 Miller v. Hancock 616 Mills v. Armstrong 581 Mogul S. S. Co. v. M c Gregor 195, 226 Munster v. Lamb 319 Murray v. Currie 91 Murray v. Hall 387 N. New York W. T. Co. v. Dryburgh 628 Nichols v. Marsland 606 N. E. Ry. Co. v. Wanlebs 559 O. Oxley v. Watts 402 Pasley v. F ; reeman 473 Paul v. Summerhayes 408 Payne v. Rogers 457 Peek v. Gurney 480 Perry v. Fitzhowe 463 Pippin v. Sheppard 631 Pluckwell v. Wilson 570 Polhill v. Walter 497 ponting v. noakes 609 Powell v. Fall 590 Pratab v: B. B. Ry. Co. 249 Priestley v. Fowler • 88, 151 Pullman v. Hill & Co. 296 Quarman v. Burnett 98 Quinn v. Leathem 188 XIV Index of Cases. R. PAGE Radley v. L. N. W. Ry. Co. 578 Ratclifpe v. Evans 291 Bawstron v. Taylor 171 Read v. Coker 240 Reece v. Taylor 247 Regina v. Pratt 384 Regina v. Sankara 350 Rex v. Cross 444 Rex v. Hart 332 Rex v. Jones 444 Rex v. Lloyd 435 Rex v. Mitton 405 Rex v. Pedly 458 Rist v. Faux 273 Roberson v. Rochester Fold- ing Box Co. 364 Rogers v. Rajendro 176 Romney Marsh v. Trinity Mouse 53 Rylands v. Fletcher 600 S. Scott v. Shepherd 19 Scott v. Stansfield 119 Seaman v. Netherclift 322 Sec. for India v. Kamachee 111 Sharp v. Powell 50 Sheperd v. Wakeman 502 Shepherd v. Midland Ry. Co. 54 Six Carpenters' Case 399 Skinner v. L. B. S. C. Ry. Co. 564 Sleath v. Wilson 86 Smith v. Baker 152 Smith v. Chadwick 485 Smith v. Cranshaw 206 Smith v. London St K. Docks 616 Smith v. L. S. W. Ry. Co. 541 somerville v. hawkins 333 Stanley v. Powell 140 Stephens v. Elwall 423 Stephens v. Myers 239 St Helens v. Tipping 440 Storey v. Ashton 85 Stuart v. Bell 330 PAGE Sullivan v. Creed 588 Sykes v. Sykes 509 T. Tarleton v. McGawley 524 Taylor v. Whitehead 163 Terry v. Hutchinson -270 Thorns (Case op) 379 Thorogood v. Bryan 582 Thorogood v. Robinson 421 Tillett v. Ward 597 Tithes (Case of) 376 Todd v. Flight 457 Toomey v. L. B. S. C. Ry. Co. 549 Tuff v. Warman 575 turbervell v. savadge 241 Turner v. Sterling 205 U. Underwood v. Hewson 143 V. Vaughan v. Menlove 538 Vaughan v. Taff Vale 132 Vegelahn v. Guntner 527 Vicars v. Wilcocks 55 Vizetelly v. Mudie 300 W. Waite v. N. E. Ry. Co. 585 Wakelin v. L. S. W. Ry. Co. 554 Walker v. G. N. Ry. Co. 105 Wallis v. Alpine 511 Warner v. Riddiford 256 Wason v. Walter 325 Weaver v. Ward 142 Webb v. Beavan 278 West v. Smallwood 266 Whalley v. L. & Y. Ry. Co. 166 Williams v. Eady 545 Wilson v. Tumman 77 Wood v. Leadbitter 392 Wright v. Ramscot 158 SELECT CASES ON THE LAW OF TORTS. PART I. GENERAL PRINCIPLES. SECTION I. THE LIABILITY FOR TORT, [An act otherwise lawful is usually not rendered a Tort by its causing damage.] HOLMES v. MATHER. Couet of Exchequer. 1875. L.R. 10 Ex. 261. The first count of the declaration alleged that the female plaintiff was passing along a highway, and the defendant so negligently drove a carriage and horses in the highway that they ran against her and threw her down, whereby she and the male plaintiff were damnified. The second count alleged that the defendant drove a carriage with great force and violence against the female plaintiff and wounded her, whereby, &c. Plea, not guilty, and issue thereon. At the trial before Field, J., at the Spring Assizes for Durham, 1875, the following facts were proved: — In July, 1874, the defendant kept two horses at a livery stable in North Shields, and wishing to try them for the first time in double harness, had them harnessed together in his carriage. At his request a groom drove, the defendant sitting on the box beside him. After driving for a short time, the horses being startled by a dog which suddenly rushed out and barked at them, ran away and became so unmanageable that the groom could not stop them, though he could to some extent guide them. The groom begged the defendant to leave the management to him, and the defendant accordingly did not interfere. The groom succeeded in turning the horses safely round several corners, and at last guided them into Spring it- K. 1 2 Select Cases on the Law of Torts. [paet i. Terrace, at the end of which and at right angles runs Albion Street, a shop in Albion Street being opposite the end of Spring Terrace. When they arrived at the end of Spring Terrace the horses made a sudden swerve to the right, and the groom then pulled them more to the right, thinking that was the best course, and tried to guide them safely round the corner. He was unable to accomplish this, and the horses were going so fast that the carriage was dashed against the palisades in front of the shop; one of the horses fell, and at the same time the female plaintiff, who was on the pavement near the shop, was knocked down by the horses and severely injured. The jury stopped the case before the close of the evidence offered on the defendant's part, and said that in their opinion there was no negligence in any one. The plaintiff's counsel contended that since the groom had given the horses the direction which guided them against the female plaintiff, that was a trespass which entitled the plaintiffs to a verdict on the second count. The verdict was entered for the defendant, leave being reserved to the plaintiffs to move to enter it for them for £50 on the second count, the Court to be at liberty to draw inferences of fact, and to make any amendment in the pleadings necessary to enable the defendant to raise any defence that ought to be raised. Herschell, Q.G., having obtained a rule nisi to enter the verdict for the plaintiffs for .£50, pursuant to leave reserved, on the ground that, upon the facts proved, the plaintiffs were entitled to a verdict on the trespass count, G. Russell, Q.C., and Crompton, for the defendant, shewed cause. The plaintiff's contention is, that the driver gave that direction to the horses which turned them on to the plaintiff; but that is not clear upon the evidence. The horses swerved to the right, and the driver then pulled them further to the right, thinking he could turn them completely round, and so stop them. The horses struck the plaintiff while the driver was trying to pull them away from her. Therefore the injury was not caused by the immediate act of the driver. The jury having found that there was no negligence, the action is not maintainable in any form. This principle is laid down in the judg- ment of the Exchequer Chamber, in Fletcher v. Rylands 1 : — "But it was further said by Martin, B., than when damage is done to personal property, or even to the person by collision, either upon land or at sea, there must be negligence in the party doing the damage to render him legally responsible ; and this is no doubt true, and, as was pointed out by Mr Mellish during his argument before us, this is not confined to cases of collision, for there are many cases in which proof of negligence is essential, as, for instance, where an unruly horse gets on the footpath of a public street and kills a passenger : Hammock 1 Law Bep. 1 Ex. 265, 286. sect, i.] Holmes v. Mather. 3 v. White 1 : or where a person in a dock is struck by the falling of a bale of cotton which the defendants' servants are lowering : Scott v. London Dock Co. 2 ; and many other similar cases may be found. But we think these cases distinguishable from the present. Traffic on the highways, whether by land or sea, cannot be conducted without exposing those whose persons or property are near it to some inevitable risk ; and that being so, those who go on the highway, or have their property adjacent to it, may well be held to do so subject to their taking upon themselves the risk of injury from that inevitable danger ; and persons who by the licence of the owner pass near to warehouses where goods are being raised or lowered, certainly do so subject to the inevitable risk of accident. In neither case, therefore, can they recover without proof of want of care or skill occasioning the accident." True, there are dicta in Leame v. Bray 3 that negligence is im- material, but there is no such decision. In that case and M'Laughlih v. Pryor* there was evidence for negligence for the jury. So in Wakeman v. Hobinson 5 , where Dallas, 0. J., said : " If the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie " ; and see Gibbons v. Pepper 6 . But assuming that the driver is liable in trespass, the defendant took no part in the management of the horses, and was not a participator in the trespass. Assuming, for the sake of argument, that the relation of master and servant existed between the defendant and the groom, the mere presence of the master on the box is not enough to fix him with liability for the trespass of the servant, though it might in an action on the case for negligence 7 . The groom had no implied authority from his master to commit this trespass ; the groom expressly took on himself the responsibility of management. Trespass lies where the injury sued for is caused by the immediate and wilful force of the defendant ; or by his immediate force without wilfulness. But whether the act of the groom in guiding the horses on to the plaintiff be considered immediate and wilful or not, in no sense was it the immediate force of the defendant, and this is essential in trespass, Sharrod v. London and North Western Ey. Co. s , where Parke, B., delivering the judgment of the Court, said : " When the act is that of the servant in performing his duty to his master, the rule of law we 1 11 C. B. (N.S.) 588; 31 L. J. (C.P.) 129. 2 3 H. & C. 596; 34 L. J. (Ex.) 17, 220. s 3 East, 593, 599. " 4 Man. & G. 48. 6 1 Bing. 213, 215. 6 1 Lord Baym. 38. 7 See per Bayley, B., in Moreton v. Hardern, 4 B. & 0. 226, citing Huggett v. Montgomery, 2 N. B. 446. s 4 Ex. 580, 586. 1—2 4 Select Cases on the Law of Torts. [part i. consider to be that case is the only remedy against the master, and then only is maintainable when that act is negligent or improper; and this rule applies to all cases where the carriage or cattle of a master is placed in the care and under the management of a servant, a rational agent. The agent's direct act or trespass is not the direct act of the master." There the plaintiff's sheep got upon the de- fendants' railway through defect of fences, and were run over by a locomotive driven by the defendants' servants. Held,. that, whether the facts would or would not support an action on the case, trespass would not lie. Chandler v. Broughton 1 is the only case where a defendant has been held liable in trespass in consequence of his mere presence at the time, and there negligence in putting the horse into a gig was proved, for which he was as much responsible as the driver. In the words of Manley Smith's Master and Servant, 2nd ed. p. 209, citing M'Manus v. Crickett 2 : "Unless there be evidence of the con- currence of the master's will in the act of the servant, a master can in no case be treated as a trespasser for the act of his servant.'' Herschell, Q.C., and Gainsford Bruce, in support of the rule. But for the act of the groom in directing the horses on to the plaintiff, they would have run into the shop, and the plaintiff would have escaped. The groom may have been doing better for himself and the defendant in avoiding the shop, but that does not justify him in guiding the horse on to the plaintiff. That direction having been given by the immediate act of the driver, an action of trespass lies : Leame v. Bray 3 . There the defendant accidentally, and not wilfully, drove his carriage against the plaintiff's carriage, and the question being whether the proper remedy was trespass or case, it was held that the plaintiff had rightly brought trespass. Grose, J., said : "Looking into all the cases from the Year Book in the 21 Hen. 7, down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by mis- fortune, yet he is answerable in trespass." And Lord Ellenborough says: "If the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis, by all the cases both ancient and modern. It is immaterial whether the injury be wilful or not." This was followed and approved in M'Laughlin v. Pryor*. It was not disputed that the groom was doing all he could , to stop the horses, but as he still retained some control over them, the injury was the immediate result of his act. Herein lies the distinction between the present case and Hammock v. White 5 , where the defendant i 1 C. & M. 29. » l East, 106. 3 3 East> 593) 599 _ * 4 Man. B., in giving judgment, said : "The rule is this :' if master and servant are sitting together, and the servant is driving the master, the act of the servant is the act of the master, and the trespass of the servant is the trespass of the master.... I think that where the master is sitting by the side of his servant, and - the servant does an act immediately injurious to the plaintiff, an action of trespass is the proper remedy." This decision and that of Leame v. Bray 3 were followed and approved in M'Laughlin v. Pryor 4 . There the defendant hired for the day a carriage and horses, which were driven by postillions in the service of the owner of the horses, the defendant sitting on the box. The postillions drove against the plaintiff's gig and injured it : held, that the defendant was liable in trespass, though the postillions were not his servants. It is immaterial that in all these cases there was negligence in the drivers ; for, in considering whether trespass will lie, negligence is not regarded. It is not an element in the question of trespass to land — why should it be in trespass to the person? In Bead v. Edwards* it was discussed whether the owner of a dog is not answerable in trespass for every unauthorized entry of the animal on to the land of another ; and though the point was left undecided, the only doubt entertained was one arising from the nature of the dog as distinguished from oxen or horses. Willes, J., there referred to a case in the Year Book, 20 Edw. 4, Mich. Term, pi. 10, where the judges held that trespass lay against the defendant, whose beasts having been turned out on an uninclosed place where the defendant had common, entered the adjoining land of the plaintiff, and 1 11 C. B. (N.S.) 588 ; 31 L. J. (C.P.) 129. 2 1 C. & M. 29. 3 3 East, 593, 599. 4 4 Man. & G. 48. 6 17 C. B. (N.S.) 245.; 34 L. J. (C.P.) 31. 6 Select Cases on the Law of Torts. [part i. depastured his herbage, without the defendant's knowledge. This case was also cited by Blackburn, J., in Fletcher v. Rylands\ The defendant by his own volition set the carriage and horses in motion ; and if the result is that he can only save himself by injuring the plaintiff/ there is no justification for the injury. If somebody must suffer, why should it be the innocent plaintiff, instead of the defendant, who chose to exercise his horses in the public streets 2 [Bramwbll, B., referred to Mouse's Case 2 .] Bramwell, B. I am inclined to think, upon the authorities, that the defendant is in the same situation as the man driving ; but, without deciding that question, I assume, for the purposes of the opinion I am about to express, that he is as much liable as if he had been driving. Now, what do we find to be the facts? The driver is absolutely free from all blame in the matter ; not only does he not do anything wrong, but he endeavours to do what is the best to be done under the circumstances. The misfortune happens through the horses being so startled by the barking of a dog that they run 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 it. It seems manifest that, under such circumstances, she could not maintain an action. For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid. I think the present action not to be main- tainable. That is the general view of the case. Now I will put it a little more specifically, and address myself to the argument of Mr Herschell. Here, he says, if the driver had done nothing, there is no reason to suppose this mischief would have happened to the woman ; but he did give the horses a pull, or inclination, in the direction of the plaintiff — he drove them there. It is true that he endeavoured to drive them further away from the place by getting them to turn to the right, but he did not succeed in doing that. The argument, therefore, is, if he had not given that impulse or direction to them, they would not have come where the plaintiff was. Now, it seems to me that argu- ment is not tenable, and I think one can deal with it in this way. Here, as in almost all cases, you must look at the immediate act that did the mischief, at what the driver was doing before the mischief happened, and not to what he was doing next before what he was then doing. If you looked to the last act but one, you might as well argue 1 Law Eep. 1 Ex. 280. 2 12 Co. Bep. 63. sect, i.] Holmes v. Mather. 7 that if the driver had not started on that morning, or had not turned down that particular street, this mischief would not have happened. I think the proper answer is, You cannot complain of me unless I was immediately doing the act which did the mischief to you. Now the driver was not doing that. "What I take to be the case is this : he did not guide the horses upon the plaintiff; he guided them away from her, in another direction ; but they ran away with him, upon her, in spite of his effort to take them away from where she was. It is not the case where a person has to make a choice of two evils, and singles the plaintiff out, and drives to the spot where she is standing. That is not the case at all. The driver was endeavouring to guide them indeed, but he was taken there in spite of himself. I think the observation made by my Brother Pollock during the argument is irresistible, that if Mr Herschell's contention is right, it would come to this : if I am being run away with, and I sit quiet and let the horses run wherever they think fit, clearly I am not liable, because it is they, and not I, who guide them ; but if 1 unfortunately do my best to avoid injury to myself and other persons, then it may be said that it is my act of guiding them that brings them to the place where the accident happens. Surely it is impossible. As to the cases cited, most of them are really decisions on the form of action, whether case or trespass. The result of them is this, and it is intelligible enough: if the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy) where the act is wrongful, either as being wilful or as being the result of negligence. Where the act is not; wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were wrongful. That is the effect of the decisions. In Sharrod v. London and North Western By. Co. 1 the master was not present. In McLaughlin v. Pryor" the defendant was present, and was supposed to be taking part in the control of the animals. In Leame v. Bray 1 there was an act of direct force vi et armis, and there was negligence. I think, therefore, that our judgment should be for the defendant. I think I could distinguish the case cited from the Year Book, butt I will only say that there the defendant let out animals, liable to stray, whether frightened or not, in a place not inclosed, and without anybody to keep them in bounds. ******* Rule discharged. 1 4 Ex. 580. 2 4 Man. & G. 48. 3 3 East, 593, 599. 8 Select Oases on the Law of Torts. [part i. [And an act otherwise lawful is usually not rendered a Tort by its being committed from a malicious motive.] MAYOR, etc. OF BRADFORD v. PICKLES. House of Lords. L.R. [1895], A.C. 587. The following statement of the facts is taken from the judgment of Lord Watson : — The appellants have purchased under statutory powers, and are now vested with the whole undertaking of the Bradford Waterworks Company incorporated by an Act passed in 1854 (17 & 18 Vict, c. xxiv.), which transferred to that company the undertaking of a corporation, having the same name, created by statute in 1842 (5 Vict. Sess. 2, c. vi.), together with all rights and privileges thereto belonging. The older of these companies acquired, for the purposes of their under- taking, a parcel of land known as Trooper Farm, and also certain springs and streams arising in or flowing through the farm. From these springs and streams the appellants and their predecessors have hitherto obtained a valuable supply of water for the domestic use of the inhabitants of Bradford. Trooper Farm is bounded on the west and north by lands belonging to the respondent which are about 140 acres in extent. The first of these boundaries, on the west, which is alone of importance in the present case, is a public highway called Doll Lane. The respondent's land to the west of that boundary is on a higher level than Trooper Farm, and has a steep slope downwards to the lane. Its substrata are intersected by two faults running from east to west, one from each end of the boundary, which prevent the escape of percolating water either to the north or south ; and the nature and the inclination of the strata are such that the subterranean water which they contain must, by the natural force of gravitation, eventually find its way to Trooper Farm. The sources from which the appellants derive a supply of water near to the western boundary of Trooper Farm are two in number. The first of these is a large spring, known as Many Wells, which issues from their ground twenty or thirty yards to the east of Doll Lane. The second is a stream to the south of Many Wells, which has its origin in a smaller spring on the respondent's land, close to Doll Lane, at a point known as the Watering Spot, from which the water runs in a definite channel into Trooper Farm. It is an admitted fact that neither the appellants nor either of the companies whose undertaking is now vested in them ever acquired from the respondent or his predecessors in title any part of their legal sect, i.] Mayor, etc. of Bradford v. Pickles. 9 right to or interest in the water in their land, whether above or below the ground ; and also that the statutes, to the benefit of whose provisions the appellants are now entitled, make no provision for compensating the respondent, in the event of such right or interest being prejudicially affected by the appellants' undertaking. In the year 1892 the respondent began to sink a shaft on his land adjoining the lane, and to the west of the Many Wells Spring, and also to drive a level through his land for the professed purpose of draining the strata, with a view to the working of his minerals. These operations had the effect of occasionally discolouring the water in the Many Wells Spring, and also of diminishing to some extent the amount of water in that spring, and in the stream coming from the Watering Spot; and it became apparent that, if persevered in, they would result in a considerable and permanent diminution of the water supply obtainable from these sources. The appellants then brought the present suit, in which they crave an injunction to restrain the respondent from continuing to sink the shaft or drive the level, and from doing anything whereby the waters of the spring and stream might be drawn off or diminished in quantity, or polluted, or in- juriously affected. The appellants alleged in their statement of claim that the re- spondent had not a bona fide intention to work his minerals, and that his intention was to injure the appellants and so to endeavour to induce them either to purchase his land or to give him some other compensation. North, J., being of opinion that the respondent's acts were pro- hibited by statute granted an injunction 1 . The Court of Appeal (Lord Herschell, L.G., Lindley and A. L. Smith, L.JJ.) reversed this decision and declared that the appellants were not entitled to any of the relief claimed in the action 2 . The Act of 1854 incorporated among others sect. 14 of the Water- works Clauses Act 1847. Sect. 49 of the Act of 1854 was almost identical in terms with sect. 234 of the Act of 1842 and ran as follows: — "It shall not be lawful for any person other than the company -to divert alter or appropriate in any other manner than by law they may be legally entitled any of the waters supplying or flowing from certain streams and springs called 'Many Wells,' arising or flowing in and through a certain farm called ' Trooper ' or Many Wells Farm in the township of Wilsden in the parish of Bradford, or to sink any well or pit or do any act matter or thing whereby the waters of the said springs might be drawn off or diminished in quantity; and if any person shall illegally divert alter or appropriate the said waters or i [1894] 3 Ch. 53. ■ [1895] 1 Ch. 145. 10 Select Gases on the Law of Torts. [pakt i. any part thereof or sink any such well or pit or shall do any such act matter or thing whereby the said waters may be drawn off or diminished in quantity, and shall not immediately on being required so to do by the company repair the injury done by him, so as to restore the said springs and the waters thereof to the state in which they were before such illegal act as aforesaid, he shall forfeit to the company any sum not exceeding five pounds for every day during which the said supply of water shall be diverted or diminished by reason of any work done or act performed by or by the authority of such person, in addition to the damage which the company may sustain by reason of their supply of water being diminished." May 9. Cozens-Hardy, Q.G., and B. Eyre for the appellants : — The respondent in diverting this water is not making a reasonable use of the land. He is acting maliciously, and the cases shew that a user which would otherwise be justifiable ceases 1 to be so when the - object is to injure another. This principle was applied in the early case of Keeble v. HickeringiW, in which a decoy was disturbed by shooting. In Acton v. BlundelP, in which the right to intercept underground water was established, this limitation is expressed. Tindall, C.J., at p. 353 quotes Marcellus : "Si non animo vicini nocendi, sed suum agrum meliorem faciendi " ; and the same passage is quoted by Lord Wensleydale in Chasemore v. Richards'. Lord Wensleydale says : " Every man has a right to the natural advantages of his soil.... But according to the rule of reason and law 'Sic utere tuo ut alienum non laedas,' it seems right to hold that he ought to exercise his right in a reasonable manner with as little injury to his neighbour's rights as may be." In Smith v. Kenrick* the same limitation on freedom of action is imposed ; and Maule, J., says that if a man in the legitimate use of his own land " acts negligently or capriciously and injury results, no doubt he is liable." In Mogul Steamship Co. v. Macgregor, Gow & Co. 5 Bowen, L. J., after saying that a man is legally justified in the bona fide use of his property or the exercise of his trade, even if what he does seems selfish or unreason- able, adds : " But such legal justification would not exist where the act was merely done with the intention of causing temporal harm, without reference to one's own lawful gain or the lawful enjoyment of one's own rights.'' The respondent's conduct comes distinctly within the exceptions there expressed. [They also contended that the respondent's conduct was forbidden by the Bradford Waterworks Act 1854 s. 49.] Everitt, Q.C., Tindal Atkinson, Q.C., Butcher and A. P. Longstaffe for the respondent were not heard. 1 11 Mod. 74, 131 ; 11 East, 574, n. 2 12 M. & W. 324. s 7 H. L. 0. 349, 387. l 7 0. B. 515, 559. = 2 3 Q. B. D. 598, 618. sect. i. J Mayor, etc. of Bradford v. Pickles. 11 The House took time for consideration. July 29. Lord Halsbury, L.C. :— My Lords, in this action the plaintiffs seek to restrain the defendant from doing certain acts which they allege will interfere with the supply of water which they want, and which they are incorporated to collect for the purpose of better supplying the town of Bradford. North, J., ordered the injunction to issue, but the Court of Appeal, consisting of Lord Herschell, Lindley, L.J., and A. L. Smith, L.J., reversed his judgment. The facts that are material to the decision of this question seem to me to lie in a very narrow compass. The acts done, or sought to be done, by the defendant were all done upon his own land, and the interference, whatever it is, with the flow of water is an interference with water, which is underground and not shewn to be water flowing in any defined stream, but is percolating water, which, but for such interference, would undoub'tedly reach the plaintiffs' works, and in that sense does deprive them of the water which they would otherwise get. But although it does deprive them of water which they would other- wise get, it is necessary for the plaintiffs to establish that they have a right to the flow of water, and that the defendant has no right to do what he is doing. My Lords, I am of opinion that neither of those propositions can be established. Apart from the consideration of the particular Act of Parliament incorporating the plaintiffs, which requires separate treatment, the question whether the plaintiffs have a right to the flow of such water appears to me to be covered by authority. In the case of Chasemore v. Richards*, it became necessary for this House to decide whether an owner of land had a right to sink a well upon his own premises, and thereby abstract the subterranean water percolating through his own soil, which would otherwise, by the natural force of gravity, have found its way into springs which fed the River Wandle, the flow of which the plaintiff in that action had enjoyed for upwards of sixty years. The very question was then determined by this House, and it was held that the landowner had a right to do what he had done whatever his object or purpose might be, and although the purpose might be wholly unconnected with the enjoyment of his own estate. It therefore appears to me that, treating this question apart from the particular Act of Parliament, and, indeed, apart from the 49th section of the Act of Parliament upon which the whole question turns, it would be absolutely hopeless to contend that this case is not governed by the authority of Chasemore v. Richards'. i 7 H. L. C. 349. 12 Select Cases on the Law of Torts. [part i. This brings me to the 49th section of the statute 17 & 18 Vict. c. cxxiv., upon which reliance has been placed. [His Lordship read it.] Whatever may be said of the drafting of this section, two things are clear : first, that the section in its terms contemplates that persons other than the company may be legally entitled to divert, alter, or appropriate the waters supplying or flowing from the streams and springs; and, secondly, that the acts against which the section is directed must be illegal diversion, alteration, or appropriation of the said waters. The natural interpretation of such language seems to me to be this : that whereas the generality of the language of the section might apply to any alteration or appropriation of waters supplying or flowing from the streams and springs called " Many Wells," the section only s intended to protect such streams and springs and supplies as the company should have acquired a right to by purchase, compensation, or otherwise, but in suchwise as should vest in them the proprietorship of the waters, streams, springs, &c. And lest the generality of the language should give them more than that to which they had acquired the proprietary right, the legal rights of all other persons were expressly saved ; and upon this assumption the latter part of the section makes penal the illegal diversion, alteration, or appropriation of any streams, &c, of which, by the hypothesis, the company had become the pro- prietor. I do not think that North, J., does justice to the language of the section when he says that " the section enacts that a man is not to do certain specified things except so far as he may lawfully do them." The fallacy of that observation (with all respect to North, J.) resides in the phrase " certain specified things." If my reading of the section be correct, the thing that is prohibited is taking or diverting water which has been appropriated and paid for by the company ; but the thing which is not prohibited is taking water which has not reached the company's premises, to the property in which no title is given by the section, and which, by the very act complained of, never can reach the company's premises at all. To use popular language, therefore, what is prohibited is taking what belongs to the company, and what is not prohibited is taking what does not belong to the company. My Lords, I have used popular language because I have no doubt that the draftsman who drew the section was encountered with the proposition in his own mind that you could not absolutely assert property of percolating water at all. You may have a right to the flow of water ; you may have a property in the water when it is collected and appropriated and reduced into possession ; but, in view of the particular subject-matter with which the draftsman was dealing, sect, i.] Mayor, etc. of Bradford v. Pickles. 13 it seems to me intelligible enough why he adopted the phraseology now under construction. It appears to me that this is the true construction of the section from the language itself. But I confess I can entertain no doubt that the mere fact that the section, as construed by the plaintiffs, affords no right to compensation to those whose rights might be affected, is conclusive against the construction contended for by the plaintiffs. The only remaining point is the question of fact alleged by the plaintiffs, that the acts done by the defendant are done, not with any view which deals with the use of his own land or the percolating water through it, but done, in the language of the pleader, "maliciously." I am not certain that I can understand or give any intelligible con- struction to the word so used. Upon the supposition on which I am now arguing, it comes to an allegation that the defendant did maliciously something that he had a right to do. If this question were to have been tried in old times as an injury to the right in an action on the case, the plaintiffs would have had to allege, and to prove, if traversed, that they were entitled to the flow of the water, which, as I have already said, was an allegation they would have failed to establish. This is not a case in which the state of mind of the person doing the act can affect the right to do it. If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before your Lordships seem to me to be absolutely irrelevant. But I am not prepared to adopt Lindley, L.J.'s, view of the moral obliquity of the person insisting on his right when that right is challenged. It is not an uncommon thing to stop up a path which may be a convenience to everybody else, and the use of which may be no inconvenience to the owner of the land over which the path goes. But when the use of it is insisted upon as a right, it is a familiar mode of testing that right to stop the permissive use, which the owner ot the land would contend it to be, although the use may form no inconvenience to the owner. So, here, if the owner of the adjoining land is in a situation in which an act of his, lawfully done on his own land, may divert the water which would otherwise go into the possession of this trading company, I see no reason why he should not insist on their pur- chasing his interest from which this trading company desires to make profit. For these reasons, my Lords, I am of opinion that this appeal ought to be dismissed with costs, and that the plaintiffs should pay to the defendant the costs both here and below. 14 Select Cases on the Law of Torts. [part i. Lord Watson.... The second plea argued by the appellants, which was rejected by both Courts below, was founded upon the text of the Roman law 1 (Dig. lib. 39, tit. 3, art. 1, s. 12), and also, somewhat to my surprise, upon the law of Scotland. I venture to doubt whether the doctrine of Marcellus would assist the appellants' contention in this case; but it is unnecessary to consider the point, because the noble and learned Lords who took part in the decision of Chasemore v. Richards 3 held that the doctrine had no place in the law of England. I desire, however, to say that I cannot assent to the law of Scotland as laid down by Lord Wensleydale in Chasemore v. Richards'. The noble and learned lord appears to have accepted a passage in Mr Bell's Principles (s. 966). I am aware that the phrase "in aemulationem vicini " was at one time frequently, and is even now occasionally, very loosely used by Scottish lawyers. But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not attended with offence or injury to the legal rights of his neighbour. In cases of nuisance a degree of indulgence has been extended to certain operations, such as burning limestone, which in law are regarded as necessary evils. If a land- owner proceeded to burn limestone close to his march so as to cause annoyance to his neighbour, there being other places on his property where he could conduct the operation with equal or greater convenience to himself and without giving cause of offence, the Court would pro- bably grant an interdict. But the principle of aemulatio has never been carried further. The law of Scotland, if it differs in that, is in all other respects the same with the law of England. No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious. Appeal dismissed with costs ; action dismissed. [Editor's Note. In the curious American Suffolk Bank Case (27 Vermont 505), one bank was sued by another, for habitually presenting for immediate payment any notes of the latter bank that came into its hands (instead of paying them away again to the general public), and thus abbreviating their circulation "with wicked motives and with an intent to injure the plaintiffs in their business." The Court held that this was merely the ordinary caBe of a creditor asking for a payment which it was the legal duty of the debtor to be at all times ready to make. If the defendants' demand for unusually prompt payments had caused damage, it was damnum absque injuriti; and even malicious motive would not suffice to render them liable for doing acts which they had a right to do.] 1 Supra, p. 10. 2 7 H. L. C. 349. 3 7 H. L. C. at p. 388. sect. i.J Gorris v. Scott. 15 [If a statutory duty be imposed solely in order to prevent damage of one particular kind, no action will lie for such a breach of it as only causes damage o.f a different kind.] GOERIS v. SCOTT. Court of Exchequer. 1874. L.R. 9 Ex. 125. Declaration, first count : that after the passing of the Contagious Diseases (Animals) Act, 1869, the Privy Council, in exercise of the powers and authorities vested in them by the Act (s. 75), made an order (called the Animals. Order of 1871) with reference to animals brought by sea to ports in Great Britain, and to the places used and occupied by such animals on board any vessel in which the same should be so brought to such ports ; and thereby, amongst other things, ordered (1) that every such place should be divided into pens by substantial divisions ; (2) that each such pen should not exceed nine feet in breadth and fifteen* feet in length; that afterwards and whilst the order was in force the plaintiffs delivered on board a vessel called the Hastings, to the defendant as owner of the vessel, certain sheep of the plaintiffs', to be carried by the defendant for reward on board the said vessel from Hamburg to Newcastle, and there de- livered to the plaintiffs ; and the defendant, as such owner, received and started on the said voyage with the sheep for the purposes and on the terms aforesaid ; that all conditions were fulfilled, <&c, yet the place in and on board the said vessel which was used and occupied by the sheep during the voyage was not, during the said voyage or any part thereof, divided into pens by substantial or other divisions, by reason whereof divers of the sheep were washed and swept away by the sea from off the said ship, and were drowned and wholly lost to the plaintiffs. Second count, similar to the first, but setting out a third regu- lation : " that the floor of each such pen should have proper battens or other foot-hold thereon," and alleging the loss of the sheep as aforesaid to have been caused by the want of such battens. Demurrer and joinder. Shield, in support of the demurrer. The statute was made for the furtherance of a public purpose, and not to secure any private benefit, and the observance of its provisions is enforced by a penalty : 32 & 33 Vict. c. 70, s. 103, and Cullen v. Trimble 1 . Its infringement, therefore, gives no ground for an action. 'L.E.7 Q. B. 416. 16 Select Cases on the Law of Torts. [paet i. The preamble of the Act, as well as its whole structure, and s. 75 in particular, under which this order is made 1 , shew that the Act is entirely directed to the prevention of contagious diseases among cattle; and if, under s. 75, the Privy Council had made orders directed to some other purpose, they would have exceeded their powers. The order, then, must be construed with reference to the language of s. 75 and the purpose of the Act, and, so understood, its object is not to secure the owners of sheep and cattle from loss by the perils of the sea, but to protect the country against the introduction and the spread of murrain. This circumstance brings the case within the authority of Stevens v. Jeacocke*, and distinguishes it from Couch v. Steel 3 and Atkinson v. Newcastle and Gateshead Waterworks Co.* Herschell, Q.C. (J. W. Mellor with him.), contra. Stevens v. Jea- cocke 2 is distinguishable on the ground that a specific remedy was given by the statute ; the present case falls within Atkinson v. New- castle and Gateshead Waterworks Co.*, where it was held that the imposition of a penalty which was not intended as a compensation did not exclude the right of action. These precautions must be considered as enacted generally, at least to this extent, that all persons engaged in the importation of animals must be taken to know of the existence of the regulations, and to contract with reference to them. 1 32 & 33 Vict. i;. 70: "Whereas it is expedient to confer on Her Majesty's most honourable Privy Council powers to take such measures as may appear from time to time necessary to prevent the introduction into Great Britain of contagious or infectious diseases among cattle, sheep, and other animals, by prohibiting or regulating the importation of foreign animals; and it is further expedient to provide against the spreading of such diseases in Great Britain, and to consolidate and make perpetual the Acts relating thereto, and to make such other provisions as are contained in this Act." Part I. (ss. 1 — 8) is headed "Preliminary"; part II. (ss. 9 — 14), "Local Authorities"; part III. (ss. 15 — 30), "Foreign Animals"; part IV. (ss. 31 — 64), "Discovery and Prevention of Disease"; part V. (ss. 65 — 74), "Slaughter in Cattle Plague; Compensation"; part VI. (ss. 75—85), "Orders of Council and Local Authorities"; and the rest of the Act relates to the taking of lands, to expenses, and to offences and penalties. Sect. 75 : "The Privy Council may from time to time make such orders as they think expedient for all or any of the following purposes : — "For insuring for animals brought by sea to ports in Great Britain a proper supply of food and water during the passage and on landing : "For protecting such animals from unnecessary suffering during the passage and on landing: [Then follow certain inland purposes.] "And generally any orders whatsoever which they think it expedient to make for the better execution of this Act, or for the purpose of in any manner preventing the introduction or spreading of contagious or infectious disease among animals in Great Britain." 2 11 Q. B. 731; 17 L. J. (Q.B.) 163. ' 3 E. & B. 402; 23 L. J. (Q.B.) 121. ' Law Bep. 6 Ex. 404. sect. i.J Gorris v. Scott. 17 The plaintiffs were entitled to assume that the defendant would perform all the duties cast upon him by the law, including compliance with these orders; and that being so, the defendant has impliedly contracted with the plaintiffs that he would perform them. Kelly, C.B. This is an action to recover damages for the loss of a number of sheep which the defendant, a shipowner, had con- tracted to carry, and which were washed overboard and lost by reason (as we must take it to be truly alleged) of the neglect to comply with a certain order made by the Privy Council, in pursu- ance of the Contagious Diseases (Animals) Act, 1869. The Act was passed merely for sanitary purposes, in order to prevent animals in a state of infectious disease from communicating it to other animals with which they might come in contact. Under the authority of that Act, certain orders were made ; amongst others, an order by which any ship bringing sheep or cattle from any foreign port to ports in Great Britain is to have the place occupied by such animals divided into pens of certain dimensions, and the floor of such pens furnished with battens or foot-holds. The object of this order is to prevent animals from being overcrowded,' and so brought into a condition in which the disease guarded against would be likely to be developed. This regulation has been neglected, and the questipn is, whether the loss, which we must assume to have been caused by that neglect, entitles the plaintiffs to maintain an action. The argument of the defendant is, that the Act has imposed penalties to secure the observance of its provisions, and that, according to the general rule, the remedy prescribed by the statute must be pursued ; that although, when penalties are imposed for the violation of a statutory duty, a person aggrieved by its violation may sometimes maintain an action for the damage so caused, that must be in cases where the object of the statute is to confer a benefit on individuals, and to protect them against the evil consequences which the statute was designed to prevent, and which have in fact ensued; but that if the object is not to protect individuals against the consequences which have in fact ensued, it is otherwise ; that if, therefore, by reason of the precautions in question not having been taken, the plaintiffs had sustained that damage against which it was intended to secure them, an action would lie, but that when the damage is of such a nature as was not contemplated at all by the statute, and as to which it was not intended to confer any benefit on the plaintiffs, they cannot maintain an action founded on the neglect. The principle may be well illustrated by the case put in argument of a breach by a railway company of its duty to erect a gate on a level crossing, and to keep the gate closed except when the crossing is being actually and properly used. The object of the precaution is to prevent injury 2 18 Select Gases on the Law of Torts. [part i. from being sustained through animals or vehicles being upon the line at unseasonable times ; and if by reason of such a breach of duty, either in not erecting the gate, or in not keeping it closed, a person attempts to cross with a carriage at an improper time, and injury ensues to a passenger, no doubt an action would lie against the railway company, because the intention of the legislature was that, by the erection of the gates and by their being kept closed individuals should be protected against accidents of this description. And if we could see that it was the object, or among the objects of this Act, that the owners of sheep and cattle coming from a foreign port should be protected by the means described against the danger of their property being washed overboard, or lost by the perils of the sea, the present action would be within the principle. But, looking at the Act, it is perfectly clear that its provisions were all enacted with a totally different view ; there was no purpose, direct or indirect, to protect against such damage ; but, as is recited in the preamble, the Act is directed against the possibility of sheep or cattle being exposed to disease on their way to this country. The preamble recites that "it is expedient to confer on Her Majesty's most honourable Privy Council power to take such measures as may appear from time to time necessary to prevent the introduction into Great Britain of contagious or infectious diseases among cattle, sheep, or other animals, by prohibiting or regulating the importation of foreign animals," and also to provide against the " spreading " of such diseases in Great Britain. Then follow numerous sections directed entirely to this object. Then comes s. 75, which enacts that " the Privy Council may from time to time make such orders as they think expedient for all or any of the following purposes." What, then, are these purposes ? They are " for securing for animals brought by sea to ports in Great Britain a proper supply of food and water during the passage and on landing," " for protecting such animals from un- necessary suffering during the passage and on landing," and so forth ; all the purposes enumerated being calculated and directed to the prevention of disease, and none of them having any relation whatever to the danger of loss by the perils of the sea. That being so, if by reason of the default in question the plaintiffs' sheep had been over- crowded, or had been caused unnecessary suffering, and so had arrived in this country in a state of disease, I do not say that they might not have maintained this action. But the damage complained of here is something totally apart from the object of the Act of Parliament, and it is in accordance with all the authorities to say that the action is not maintainable. ******* Judgment for the defendant. sect, i.] Scott v. Shepherd. 19 [A tortfeasor is liable for all the natural and probable consequences oj his tort, even for those produced through the subsequent lawful intervention of some other person.] SCOTT v. SHEPHERD. Court op Common Pleas. 1773. 2 Wm. Blaokstonb, 892. Trespass and assault for throwing, casting, and» tossing a lighted squib at and against the plaintiff, and striking him therewith on the face, and so burning one of his eyes, that he lost the sight of it, whereby, &e. On Not Guilty pleaded, the cause came on to be tried before Nares, J., last Summer Assizes, at Bridgwater, when the jury found a verdict for the plaintiff with £100 damages, subject to the opinion of the Court on this case : — On the evening of the fair-day at Milborne Port, 28th October, 1770, the defendant threw a lighted squib, made of gunpowder, &c. from the street into the market-house, which is a covered building, supported by arches, and enclosed at one end, but open at the other and both the sides, where a large concourse of people were assembled ; which lighted "'squib, so thrown by the defendant, fell upon the standing of one Yates, who sold gingerbread, &c. That one Willis instantly, and to prevent injury to himself and the said wares of the said Yates, took up the said lighted squib from off the said standing, and then threw it across the said market-house, when it fell upon another standing there of one Ryal, who sold the same sort of wares, who instantly, and to save his own goods from being injured, took up the said lighted squib from off the said standing, and then threw it to another part of the said market-house, and, in so throwing it, struck the plaintiff then in the said market-house in the face therewith, and the combustible matter then bursting, put out one of the plaintiff's eyes. Qu. If this action be maintainable? This case was argued last Term by Glyn, for the plaintiff, and Burland, for the defendant : and this Term, the Court, being divided in their judgment, delivered their ^opinions seriatim. Nabes, J., was of opinion, that trespass would well lie in the present case. The natural and probable consequence of the act done by the defendant was injury to somebody, and therefore the act was illegal at common law. And the throwing of squibs has by statute W. 3', been since made a nuisance. Being therefore unlawful, the defendant was liable to answer for the consequences, be the injury 1 9 & 10 W. 3, e. 7. A schoolmaster, who permits an infant pupil under his care to make use of fire-works, is liable, in assumpsit, for a breach of his duty and undertaking to the parent of such infant, for any mischief which ensues to the infant from being so permitted to make use of them; King v. Ford, 1 Stark. E. 421. 2—2 20 Select Cases on the Law of Torts. [part i. mediate or immediate. 21 Hen. 7, 28, is express that malus animus is not necessary to constitute a trespass. So, too, 1 Stra. 596; Hob. 134; T. Jones, 205; 6 Edw. 4, 7, 8; Fitzh. Trespass, 110. The prin- ciple I go upon is what is laid down in Reynolds and Clark, Stra. 634, that if the act in the first instance be unlawful, trespass will lie. Wherever therefore an act is unlawful at first, trespass will lie for the consequences of it. So, in 12 Hen. 4, trespass lay for stopping a sewer with earth, so as to overflow the plaintiff's land. In 26 Hen. 8, 8, for going upon the plaintiff's land to take the boughs off which had fallen thereon in lopping. See also Hardr. 60; Reg. 108, 95; 6 Edw. 4, 7, 8; 1 Ld. Raym. 272; Hob. 180; Cro. Jac. 122, 43; F. N. B. 202, [91, g]. I do not think it necessary, to maintain trespass, that the defendant should personally touch the plaintiff; if he does it by a mean it is sufficient. — Qui facit per aliudfacit per se. He is the person, who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by "Willis or Ryal. It is like the case' of a mad ox turned loose in a crowd. The person who turns him loose is answerable in trespass for whatever mischief he may do 1 . The intermediate acts of Willis and Ryal will not purge the original tort in the defendant. But he who does the first wrong is answerable for all the consequential damages. So held in the King and Huggins, 2 Lord Raym. 1574; Parkhurst and Foster, 1 Lord Raym. 480; Rosewell and Prior, 12 Mod. 639. And it was declared by this Court, in Slater and Baker, M. 8 Geo. 3, 2 Wils. 359, that they would not look with eagle's eyes to see whether the evidence applies exactly or not to the case : but if the plaintiff has obtained a verdict for such damages as he deserves, they will establish it if possible De Grey, C. J. This case is one of those wherein the line drawn by the law between actions on the case and actions of trespass is very nice and delicate. Trespass is an injury accompanied with force, for which an action of trespass vi et armis lies against the person from whom it is received. The question here is, whether the injury re- ceived by the plaintiff arises from the force of the original act of the defendant, or from a new force by a third person. I agree with my Brother Blackstone as to the principles he has laid down, but not in his application of those principles to the present case. The real 1 S. V. per Ld. Ellenborough, 3 East, 595. "If a man hath an unruly horse in his stable, and leaves open the stable door, whereby the horse goes forth and does mischief ; an action lies against the master"; per Wild, J., 1 Ventr. 295. "If one hath kept a tame fox, which gets loose and grows wild, he that kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature"; per Twisden, C. J., Ibid. sect, i.] Scott v. Shepherd. 21 question certainly does not turn upon the lawfulness or unlawfulness of the original act; for actions of trespass will lie for legal acts when they become trespasses by accident; as in the cases cited of cutting thorns, lopping of a tree, shooting at a mark, defending oneself by a stick which strikes another behind, &c. — They may also not lie for the consequences even of illegal acts, as that of casting a log in the highwaj-, &c. — But the true question is, whether the injury is the direct and immediate act of the defendant; and I am of opinion, that in this case it is. The throwing the squib was an act unlawful and tending to affright the bystanders. So far, mischief was originally intended ; not any particular mischief, but mischief indiscriminate and wanton. Whatever mischief therefore follows, he is the author of it; • — egreditur personam, as the phrase is in criminal cases. And though criminal cases are no rule for civil ones, yet in trespass I think there is an analogy. Every one who does an unlawful act is considered as the doer of all that follows; if done with a deliberate intent, the consequence may amount to murder; if incautiously, to manslaughter; Fost. 261. So too, in 1 Ventr. 295, a person breaking a horse in Lincoln's Inn Fields hurt a man ; held, that trespass lay : and, 2 Lev. 172, that it need not be laid scienter. I look upon all that was done subsequent to the original throwing as a continuation of the first force and first act, which will continue till the squib was spent by bursting. And I think that any innocent person removing the danger from himself to another is justifiable ; the blame lights upon the first thrower. The new direction and new force flow out of the first force, and are not a new trespass. The writ in the Register, 95 a, for trespass in maliciously cutting down a head of water, which thereupon flowed down to and overwhelmed another's pond, shews that the immediate act need not be instantaneous, but that a chain of effects connected together will be sufficient. It has been urged, that the intervention of a free agent will make a difference : but I do not consider Willis and Ryal as free agents in the present case, but acting under a compulsive necessity for their own safety and self-preservation. On these reasons I concur with Brothers Gould and Nares, that the present action is maintainable. [Editor's Note. Blaokstone, J., differed from the other three judges who decided this Case, but only as to the form of action under which defendant was liable — action of trespass or action on the case. All four judges were unanimous in holding that Shepherd was liable for the injury done.] 22 Select Oases on the Law of Torts. [part i. [Or even through that other person's unlawful intervention.] McDOWALL v. GREAT WESTERN RAILWAY COMPANY. King's Bench Division. L.R. [1902] 1 K.B. 618. Further Consideration before Kennedy, J. The action was brought by the plaintiff, an infant,^ suing by her next friend, to recover damages from the defendants in respect of injuries sustained by her through the alleged negligence of the defendants or their servants. It was tried before Kennedy, J., and a jury at the Haverfordwest Assizes, and, the jury having answered specific questions put to them by the judge and assessed the damages at £175, the case was adjourned for further consideration. The following statement of facts is taken from the written judg- ment of Kennedy, J. : — "The claim is for damages for serious injury inflicted on the plaintiff, a girl of nineteen years of age, in July, 1900, by a brake-van belonging to the defendants and under the management of their servants at Pembroke. "The defendants, as part of their railway system at Pembroke, have a branch called the Hobbs Point Branch, which is an offshoot of the main line and is chiefly used as a siding. The Hobbs Point Branch line crosses on the level a highway with a gate on either side across the line of railway. For some distance from the highway to the eastward there is a steepish gradient in the railway line of about one in fifty-five, descending to the point where the line crosses the highway. In the course of the gradient is what is termed a ' catch-point,' which would arrest and divert any railway trucks or carriages which from any cause happened to run down the incline towards the highway, and would prevent them, as the defendants' witnesses phrased it, from ' running wild.' On the day before the accident a servant of the company had taken an engine with five trucks and a brake-van along the Hobbs Point Branch from the railway station, intending to leave them there as on a siding until they were required. He drew them beyond and to the westward of the catch-point, that is to say, to a position on the incline between the catch-point and the highway, and there left them, after putting on the brake in the van and properly spragging, as the operation is called, that is, securing by means of pieces of wood, the wheels of the trucks. The van was attached to the trucks by the screw coupling, which was not screwed up tight, but sufficiently tight, if not interfered with, to hold the van in connection with the trucks. The position would not have been a safe one in regard to the highway if these precautions had not been taken, but sect, i.] McDowall v. Great Western Railway Co. 23 with the sprags on the trucks and the brake on the van it would have been safe, as the jury have found by their verdict, if things had remained as they were when the trucks and the van were left in this condition. The defendants' evidence shewed that the reason why the trucks and the van were not left to the eastward of the catch-point was that they wished by going further to the westward to have an extra space of line for shunting other carriages to be brought afterwards on to the branch from the main line. The Hobbs Point Branch was separated on the one side from some open ground belonging to the defendants by a wire fence, and on the other side it was bounded by a field which was separated from the high road by a garden. For years the defendants had been troubled by boys trespassing on this part of the line and playing in and about the vehicles left standing upon it. " The day after the shunting operations some boys appear to have come on the line where the trucks and van were, and to have amused themselves by playing with the vehicles and their fastenings. They were seen doing this, or, at all events, they were seen on and close to the van, and they seem carelessly to have unfastened the screw coupling of the van, and partially to have released the brake. In consequence of this the van, loosed from the trucks, ran down the incline, smashed the gate which separated the railway from the highway, as well as a gate higher up, and knocked down and seriously injured the plaintiff, who was passing along the highway. It was to recover damages for the negligence of the defendants, which, as the plaintiff alleged, caused these injuries, that the action was brought. It was tried before me, sitting with a jury at the last assizes at Haverfordwest. The jury assessed the damages at £175, and returned answers to specific questions which I left to them. The questions and answers were as follows : ' Was the van, in regard to the persons using the highway where the plaintiff was, in a safe position, as and where it was left by the defendants' servants ,on the 20th of July, unless interfered with afterwards ? ' The jury said, ' Yes.' Secondly : ' Would the accident to the plaintiff have happened if the van had not been interfered with 1 ' Answer : ' No.' Thirdly : ' Was the inter- ference the act of trespassers, and, if so, was the interference with the wilful intent of causing the van to descend the incline, or merely negligent 1 ' Answer : * Yes ; the act of trespassers with negligence.' Fourthly: 'Was the danger of such interference causing injury to persons using the highway known to the defendants at the time the van was left and kept where it was, and might it have been sufiiciently guarded against by the exercise of reasonable care and skill on the part of the defendants?' Answer: 'Y v es; it was known and could have been guarded against by the exercise of reasonable care on the part 24 Select Cases on the Law of Torts. [pabt i. of the defendants.' Fifthly : ' Was the occurrence of the injury to the plaintiff materially and effectively caused by want of reasonable care and skill on the part of the defendants' servants in placing and keeping the van as and where ib was placed by them, either (1) in regard to its position, apart from interference by trespassers ; or (2) in regard to its danger if interfered with ; or (3) in any other way ? ' To that the jury answer, 'Yes; the company were negligent in not placing the van to the east of the catch-point'; and then they assess the damages as I have stated." Feb. 11. Arthur Lewis (K M. Samson with him), for the plaintiff. On the findings of the jury the plaintiff is entitled to judgment. The defendants knew of the danger to persons using the highway, and they could have guarded against it by the exercise of reasonable care and skill. The fact that the immediate cause of the accident was the intervening act of a third party is immaterial : Clark v. Chambers 1 . Where injury is caused by the negligence of two independent parties, the person injured can maintain an action against either of them : The Bernina 1 , where this is laid down by Lord Bsher, M.R. 3 This is really an a fortiori case, since it is plain that if one of the boys had himself been injured the defendants would have been liable although the boy was a trespasser : Lynch v. Nurdim*. The jury have found that the neglect of the defendants to guard against the mischievous acts of the boys was the effective cause of the accident, and they are therefore liable : Engelhart v. Farrant 5 '; Harrold v. Watney 6 . Francis Williams, K.G. {Denman Benson with him), for the defend- ants. The defendants are not liable. In all the cases where a defendant has been made liable for an act of a third party • he has himself been guilty of some act which was in itself negligent. In Ilott v. Wilkes 7 the defendant had set spring-guns, and in Jordi/n v. Crump 9 dog-spears, both of which were dangerous if not illegal things to do. So, in Illidge v. Goodwin" and Lynch v. Nurdin*, horses and carts were left unattended in a highway'; and in Daniels v. Potter™ and Hughes v. Macfie n cellar-flaps in the street were improperly fastened. In all the other cases reviewed in the judgment of the Court in Clark v. Chambers 1 the same will be found to be the case : Bird v. Holforook 12 ; Hill v. New River Co.™; Burrows v. March Gas Co. 1 *; Collins v. Middle Level Commissioners^ ; Harrison v. Great Northern Ry. Co. 16 ; Greenland 1 (1878) 3 Q. B. D. 327. 2 (1887) 12 P. D. 58: 3 12 P. D. at p. 61. " (1841) 1 Q. B. 29; infra, p. 27. 6 [1897] 1 Q. B. 240. e [18^8] 2 Q. B. 320. 7 (1820) 3 B. & Aid. 304; 22 B. E. 400. 8 (1841) 8M.4W. 782. 9 (1831) 5 C. & P. 190; 38 B. B. 798. ™ (1830) 4 C. & P. 262; 34 B. B. 793. 11 (1863) 2 H. & 0. 744. " (1828) 4 Bing. 628; 29 E. B. 657. 13 (1868) 9 B. & S. 303. " (1872) L. B. 7 Ex. 96. 15 (1869) L. E. 4 C. P. 279. 16 (1864) 3 H. & C. 231. sect, i.] McDowall v. Great Western Railway Co. 25 v. Chaplin 1 . In all those cases the defendant was guilty of some initial negligence. Here the only negligence which the jury have attributed to the defendants is that they did not anticipate the unlawful acts of trespassers. A person is not bound to assume that others will commit wrongful acts. In Smith v. London and South Western Ry. Co.", where the defendants were held liable for a fire caused by leaving dry hedge cuttings which became ignited by sparks from an engine, it was held that, as it was common knowledge that engines did emit sparks, the defendants Ought to have anticipated the danger ; but there is no obligation on any reasonable person to antici- pate that others will act unlawfully: Daniel v. Metropolitan Ry. Go. 3 ; Latch v. Rumner Ry. Co. 1 ; Parker v. City ofCo/ioes 6 . Samson replied. Cur. adv. vult. Feb. 20. Kennedy, J., read the following judgment : — In'this case the material facts may be shortly stated. [The learned judge stated the facts as above set out, and continued : — ] I did not give judgment at the time, but reserved the case, which is in some respects peculiar, for further consideration ; and the questions of law arising upon the case have been fully argued before me. The defendants' contention, put shortly, is that, as the placing of the van and trucks where they were placed was, as they were left, safe and without danger to others, there was no negligence in any act of the defendants ; and that they cannot be held legally responsible for an occurrence which was immediately and directly due to the subsequent act of trespassers. The plaintiff, on the other hand, relying especially on the fourth finding of the jury, contends that the principles laid down by the Queen's Bench Division in the considered judgment in Clark v. Chambers* , and in the earlier case of Lynch v. Nurdin 7 , and other cases which were fully reviewed in that judgment, and also in the later decision of the Court of Appeal in Engelhart v. Farrant", are applicable here. They contend that the jury were warranted in finding as they did, in answer to the fourth and fifth questions, that the defendants were in the circumstances guilty of negligence in leaving and keeping the trucks and van in the place in which they left and kept them, and that such negligence was the material and effective cause of the injury to the plaintiff. I have upon the whole come to the conclusion that the plaintiff's contention is right. The finding of the jury in answer to the fourth question, namely, that the defendants, at the time of placing and i (1850) 5 Ex. 243. 2 (1870) L. E. 6 C. P. 14. 3 (1871) L. B. 5 H. L. 45. i (1858) 27 L. J. (Ex.) 155.] e (1878) 10 Hun. (N.Y.) 531; 74 N.Y. 610. 6 3 Q. B. D. 327. ? 1 Q. B. 29; infra, p. 27. 8 [1897] 1 Q. B. 240. 26 Select Cases on the Law of Torts. [part i. keeping the van where they did, knew of the danger to those on the highway of such interference as caused the plaintiff's hurt, appears to me to be conclusive. The position in which, with this knowledge, they placed and kept the van was one of danger, because, if the interference happened so as to set the vehicles in motion, there was nothing there to stop the van running down the incline and crashing through the intervening gates and over the highway. There was a catch-point which had been placed to prevent, and which would in fact have prevented, such a disaster. With the knowledge of the danger the defendants, for the convenience of their traffic arrange- ments, preferred not to use this obvious and effective safeguard. There was, I think, quite sufficient evidence to justify the finding of the jury of the defendants' knowledge of the existence of the danger which the defendants' servants thus needlessly imposed upon persons using the highway. For years, according to the defendants' witnesses, they had been troubled by boys playing with and on the trucks and carriages left stationary at this part of the line. This portion of the branch is bounded on the one side by a wire fence, which separated it from some open ground of the defendants, and on the other side by a field, which was separated from the high road by a garden. To the knowledge of the defendants boys used to get into the trucks, and even to unlock the doors of the vans on the siding, for the purposes either of theft or of amusement. If the defendants knew of this systematic, or, at any rate, very frequent interference, it does not appear to me to be otherwise than reasonable for the jury to say that they must be taken to have known, as one of the risks involved, that the trucks and vans kept in position on the down grade only by temporary means, which apparently were easily movable, might, if uncontrolled by the catch-point, cause mischief to the users of the highway. If, as the jury have found, the risk of interference by trespassers with trucks and vans in this locality was a risk known to the defendants, and if the consequent danger of their movement down the incline to the highway was also a known risk, and if, further, this danger might have been guarded against by the exercise by the defendants of reasonable care, as the jury have also found, I can see no legal reasons upon which the defendants can claim immunity merely because the boys were trespassers. I may point out that in Engelhwrt v. Farrant 1 the act which immediately caused the plaintiff's hurt was an unauthorized and improper act on the part of the person who did it ; and in Lynch v. Nurdvn? Lord Denman said 8 : "If I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it i [1897] 1 Q. B. 240. 2 1 Q. B. 29; 55 E. B. 191. * Infra, p. 30. sect, i.] McDowall v. Great Western Railway Go. 27 in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first." In this case the van as placed was not a cause of danger, but the defendants knew in effect that it might become a cause of danger, for they knew the risk of the interference which would create danger, and yet they omitted to take a reasonable precaution to prevent its consequences. Therefore, as it seems to me, the principle of liability, as stated in the passage which I have read from Lord Denman's judgment, applies. I give judgment for the plaintiff for the amount found by the jury by their verdict. [And even though this other person were the plaintiff himself.'] LYNCH v. NURDIN. Queen's Bench. 1841. 1 A. and E. (N.S.) 29. Case. The declaration stated that defendant, on &c, was possessed of a cart, and of a horse then harnessed to the same. That defendant carelessly behaved and conducted himself in and about the management of the said cart and horse, and carelessly, negligently, and improperly left the said cart and horse in a certain common highway without anybody to take care of the same; and the said cart and horse of defendant, by and through his carelessness, negligence, and improper conduct in that behalf, then ran and struck with great force and violence against plaintiff, then lawfully being in the said highway, and then with great force • sect. 11.J Limpus v. London General Omnibus Co. 79 [The principal's liability extends to every act done by his agents in the course of his business and for his interest, even though the act be one which he has forbidden.] LIMPUS v. LONDON GENERAL OMNIBUS CO. Exchequer Chamber. 1862. 1 Hurlstone and Coltman 526. The cause was tried, before Martin, B., at the Middlesex Sittings after Michaelmas Term, 1861. The bill of exceptions set out the Judge's note of the evidence, which was (in substance) as follows : — ■ The driver of the plaintiff's omnibus stated that on the 27th August he left the Bank for Hounslow. After he had passed Sloane Street and was going towards Kensington, he stopped, about the barracks at Knightsbridge, to take up two passengers. The defend- ants' omnibus then passed him, and got ahead, eighty to a hundred yards. In passing, the driver eased his pace, and witness went on at his regular pace and overtook him. There was room in the road for five or six omnibuses. When witness got up to the defendants omnibus, it was on the off-side of the road rather than the near; but there was plenty of room to pass. As witness was going to pass, the driver of the defendants' omnibus pulled across the road, and one of the hind wheels touched the shoulder of witness's near horse. "Witness called out and tried to pull up, but could not. There was a bank there, and the defendants' driver forced the witness's off-horse on to the bank. The wheels of plaintiff's omnibus went on the bank and threw the omnibus over. On cross-examination the witness stated that the defendants' driver pulled his horses towards the witness's horses to prevent him passing. Another witness stated that the defendants' driver drove across the road purposely to prevent the progress of the plaintiff's omnibus, and that he considered it a reckless piece of driving. On behalf of the defendants, the driver of their omnibus stated that he passed the plaintiff's omnibus, when the driver pulled up on his near side to take up the two passengers. Afterwards the plaintiff's driver put his horses into a gallop to overtake the defendants' omnibus. The witness proceeded to say : — "I pulled across him to keep him from passing me, to serve him as he had served me. His omnibus ran upon the bank and turned over on its side. I pulled across on purpose." The witness stated that he was furnished with the following card : — "London General Omnibus Company (Limited). "Attention is particularly directed to the following regulation of the Company, and the drivers are desired to act in accordance therewith. 80 Select Cases on the Law of Torts. [part i. "During the journey he must drive his horses at a steady pace!, endeavouring as nearly as possible to work in conformity with the time list. He must not on any account race with or obstruct another omnibus, or hinder or annoy the driver or conductor thereof in his business whether such omnibus be one belonging to the Company or otherwise. "By Order. — A. G-. Church, Secretary, 31, Moorgate St." Another witness, who was a passenger on the defendants' omnibus, stated that at Knightsbridge there was a contention between the conductors of the two omnibuses which should have three ladies, who got into the plaintiff's omnibus. The defendants' driver wished to go on ; the plaintiff's drove him across the road, so that he could not go on. The defendants' driver said : "I will serve you out when I get on the road." The plaintiff's omnibus went on first, and stopped at the barracks to take up two passengers, when the defendants' omnibus passed it. When near Gore Lane, the defendants' driver maliciously and spitefully drove his horses suddenly to the footpath, not allowing the after omnibus any space at all. Martin, B., directed the jury, "that, when the relation of master and servant existed, the master was responsible for the reckless and improper conduct of the servant in the course of the service; and that if the jury believed that the real truth of the matter was that the defendants' driver, being dissatisfied and irritated with the plaintiff's driver, whether justly or unjustly, by reason of what had occurred, and in that state of mind acted recklessly, wantonly, and improperly, but in the course of his service and employment, and in doing that which he believed to be for the interest of the defendants, then the defendants were responsible for the act of their servant: that if the act of the defendants' driver, in driving as he did across the road to obstruct the plaintiff's omnibus, although a reckless driving on his part, was nevertheless an act done by him in the course of his service, and to do that which he thought best to suit the interest of his employers and so to interfere with the trade and business of the other omnibus, the defendants were responsible : that the liability of the master depended upon the acts and conduct of the servant in the course of the service and employment ; and the instructions given to the defend- ants' driver, and read in evidence to the jury, were immaterial if the defendants' driver did not pursue them ; but that if the true character of the act of the defendants' servant was, that it was an act of his own, and in order to effect a purpose of his own, the defendants were not responsible." The defendants' counsel excepted to the said ruling for that the said Baron misdirected the jury in telling and directing them as afore- sect. n. J Limpus v. London General Omnibus Co. 81 said; and, further, that the learned Baron ought to have told the jury that, if they beljeved that the defendants' driver wilfully drove across the road as aforesaid, even for the purpose of merely obstructing the plaintiff's omnibus, the defendants were not responsible, and he ought to have told and directed the jury that for an act wilfully done by the servant of the defendants against the orders of his employers con- tained in the said paper or card, even though at the time of doing it he was in the course of driving for his employers, the defendants were not responsible : that the learned Baron ought to have told the jury that there was no evidence to justify them in finding that the driver of the defendants' omnibus, in doing the act complained of, was acting in the course of his employment; and he ought to have told them that there was no evidence to warrant them in finding for the plaintiff, and ought to have directed them to find their verdict for the defendants. The jury gave a verdict for the plaintiff, with £35 damages. Mellish (Mattliews with him) now argued ' for the plaintiffs in error (the defendants below). The direction of the learned Judge was erroneous. There was evidence that the defendants' driver wilfully and recklessly drove across the plaintiff's omnibus for the purpose of impeding its progress. It is not contended that the fact of the servant having committed a wilful trespass 1 necessarily, of itself, absolves the matter from responsibility, but it is submitted that a master is not liable for a wilful trespass committed by his servant, unless it was done in obedience to the master's orders, or was within the scope of the servant's employment. Here the defendants' servant was employed to drive his omnibus, and if the wrongful act had been done in the course of that employment the defendants would be liable, but they are not if the act was done by the servant for some purpose of his own. The learned Judge made it an essential part of his direction, whether the defendants' driver was doing that which he believed to be for the interest of his employer; whereas the real question was whether the driver thought' the act necessary for carrying out his masters' orders. The true rule is laid down in Croft v. Alison 2 : " If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person and produce the accident, the master will not be liable. But if, in order to perform his master's orders, he strikes, but injudiciously and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment." [Williams, J. If a driver 1 Before Wightman, J., Williams, J., Crompton, J., Willes, J., Byles, J., and Blackburn, J. 2 4 B. & Aid. 590. k. 6 82 Select Cases on the Law of Torts. [pakt i. in a moment of passion vindictively strikes a horse with a whip, that would not be an act done in the course of his employment; but in this case the servant was pursuing the purpose for which he was employed, viz., to drive the defendants' omnibus. Suppose a master told his coachman not to drive when he was drunk, but he nevertheless did so, would not the master be responsible ?] Here the defendants' driver recklessly and purposely obstructed the plaintiff's omnibus. That was not an act within the scope of his employment, and was contrary to the orders given to him by his master. If the action had been against the servant, it must have been in trespass, not case. [Blackburn, J. If the defendants' driver did the act to effect some purpose of his own, the case would fall within the latter part of the direction.] The doctrine laid down in Croft v. Alison was recognised and adopted in Seymour v. Greenwood^. [Crompton, J. Was not the driver carrying out his masters' purposes in attempting to get before the other omnibus and pick up passengers?] He states that he drove across the plaintiff's omnibus to prevent it from passing him, and to serve the plaintiffs driver as the plaintiff's driver had served him. [Wightman, J. Would the master have been responsible if the servant had thought it for his master's interest to drive against the other omnibus and overturn it?] Lyons v. Martin 2 decided that a. master is answerable in trespass for- damage occasioned by his servant's negligence in doing a lawful act in the course of his service; but not so if the act is in itself unlawful and is not proved to have been authorized by the master. Here the servant wilfully did an act which he knew he had no right to do, and which he was instructed by his master not to do ; and it can make no difference that he believed it to be for the benefit of his master, since it was not within the scope of "his employment. ******* [Fiye of the six judges who sat (Wightman, J., being the dissentient), held that the judgment should be affirmed. Crompton, J., declared the true criterion to be "whether the injury resulted from an act done by the driver in the course of his service and for his masters' purposes." Both conditions are necessary: for, as Blackburn, J., added, "It is not universally true that every act done for the interest of the master is done in the course of the employment. A footman might think it for the interest of his master to drive the coach, but no one can say that it was within the scope of the footman's employment; and the master would be liable for damage resulting."] ******* Willes, J. The direction of my brother Martin was in accord- ance with principle and sanctioned by authority. It is well knpwn that MH&N. 355. 2 8 A. & E. 512. sect, il] Limpus v. London General Omnibus Co. 83 there is virtually no remedy against the driver of an omnibus, and therefore it is necessary that, for injury resulting from an act done by him in the course of his master's service, the master should be responsible; for there ought to be a remedy against some person capable of paying damages to those injured by improper driving. This was treated by my brother Martin as a case of improper driving, not a case where the servant did anything inconsistent with the discharge of his duty to his master, and out of the course of his employment. The defendants' omnibus was driven before the omnibus of the plaintiff, in order to obstruct it. It may be said that it was no part of the duty of the defendants' servant to obstruct the plaintiff's omnibus, and more- over the servant had distinct instructions not to obstruct any omnibus -whatever. In my opinion those instructions are immaterial. If disobeyed, the law casts upon the master a liability for the act of his servant in the course of his employment; and the law is not so futile as to allow a master by giving secret instructions to his servant, to discharge himself from liability. Therefore, I consider it immaterial that the defendants directed their servant not to do the act. Suppose a master told his servant not to break the law, would that exempt the master from responsibility for "an unlawful act done by his servant in the course of his employment ? But there is another construction to be put upon the act of the servant in driving across the other omnibus; he wanted to get before it. That was an act done in the course of his employment. He was employed not only to drive the omnibus, which alone would not support this summing up, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his employment, when explained by his desire to get before the other omnibus. I do not speak without authority when I treat that as the proper test. Take the ordinary case of a master of a vessel, who it must be assumed is instructed not to do what is unlawful but what is lawful, if he has distinct instructions not to sell a cargo under any circumstances, but he does so under circumstances consistent with his duty to his master, the master is liable in damages to the person whose goods are sold. Byles, J., said: — I am also of opinion that the direction of my brother Martin was correct. He used the words "in the course of his service and employment," which, as my brother Willes has pointed out, are justified by the decisions. The direction amounts to this, that if a servant acts in the prosecution of his master's business for the benefit of his master, and not for the benefit of himself, the master is liable, although the act may in one sense be wilful on the part of the servant. It is said that what was done was contrary to the master's instruc- 6—2 84 Select Cases on the Law of Torts. [part i. tions ; but that might be said in ninety-nine out of a hundred cases in which actions are brought for reckless driving. It is also said that the act was illegal. So, in almost every action for negligent driving, an illegal act is imputed to the servant. If we were to hold this direction wrong, in almost every case a driver would come forward and ex- aggerate his own misconduct, so that the master would be absolved. Looking at what is a reasonable direction, as well as at what has been already decided, I think this summing up perfectly correct. ;i* aj£ j|c 4LL &L AL jj& Judgment affirmed. [Editoe's Note. The result would have been different had the driver obstructed the omnibus for mere mischief or merely to win a bet about his own superiority. For when an agent does a wrongful act not for the benefit of his principal but for his own private ends, that act is not "within the scope of his employment," and the principal is not liable for it. Thus in the British Mutual Banking Go. v. Charnwood Forest By. Co. L. E. 18 Q. B. D. 714, the secretary of a company, in answering questions about certain debenture stock of the company, made false representations for his own private purpose ; and it was held by the Court of Appeal that although the secretary was held out by the company to answer stach inquiries (as the jury had found), still the company were not liable for these self- interested representation*.] sect, ii.] -Storey v. Ashton. 85 [But acts done by the servant during the time he is serving are not necessarily done in the course of the serving, ,] STOREY v. ASHTON. Coubt of Queen's Bench. 1869. L.R. 4 Q.B. 476. Declaration. That the defendant was possessed of a horse and cart then being driven under the control of a servant of the defendant, and, by the servant's negligence in driving, the horse and cart were driven over the plaintiff, who was crossing a certain highway, to wit, the City Road. Pleas : 1. Not guilty. 2. That the horse and cart were not under the control of the defendant's servant. At the trial before Hannen, J., at the sittings in Middlesex, during Trinity Term, 1868, it appeared that the plaintiff, a child of six years old, was on the 23rd of February, 1867, run over in the City Road by a horse and cart of the defendant, driven by his servant. , The defendant was a wine merchant having offices in Vine Street, Minories. On the day in question, which was a Saturday, the defend- ant sent a clerk and a carman with a horse and cart to deliver wine at Blackheath. They delivered the wine and received some empty bottles, and it was then the duty of the carman to have driven back direct to the defendant's offices, left the empties there, and taken the horse and cart round to the stables in the neighbourhood ; instead of doing this, it being after business hours (3 p.m.) on Saturday, the carman, after he had crossed London Bridge, when about a quarter of a mile from home, instead of turning at the statue in King William Street to the east tow.ard the Minories, at the persuasion of the clerk drove north- ward to the clerk's house, near the City Road, and thence to fetch a cask (which the clerk had sold to a cooper in the city), from the house of the clerk's brother-in-law at Barnsbury ; and it was while they were driving along the City Road towards Barnsbury that the accident happened to the plaintiff. There was contradictory evidence as to who was in fault ; but by consent the only question left to the jury was the amount of damages ; and a verdict was directed for the defendant, with leave to move to enter it for the plaintiff for £80, the amount found by the , jury, if the Court should be of opinion, on the evidence, that the defendant was liable for the negligence of his servant. Digby Seymour and Firday in support of the motion. Mitchell v. Grassweller 1 is distinguishable. There, the servant had reached home and then made a fresh start. Here the carman was at least a quarter of a mile from home, and he had still the empty bottles to 1 13 C. B. 237; 22 L. J. (C.P.) 100. 86 Select Cases on the Law of Torts. [part i. take home, so that he can only be said to have been making a deviation from his way home, and he was acting therefore in the defendant's employment. In Joel v. Morison 1 , Parke, B., laid down the law to the jury thus, "If the servants, being on their master's business, took a detour to call upon a friend, the master will be responsible.... The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable ; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable." Again, in Sleath v. Wilson*, the facts were, that the servant after putting his master down in Great Stamford Street, was directed to drive to the Red Lion stables in Castle Street, Leicester Square, instead of which he drove to Old Street Road to deliver a parcel of his own, and on returning thence to Leicester Square drove over and injured a person. And Erskine, J., told the jury, "It is quite clear that if a servant, without his master's knowledge, takes his , master's carriage out of the coach-house, and with it commits an injury, the master is not answerable; and on this ground, that the master has not intrusted the servant with the carriage. But whenever the master has intrusted the servant with the control of the carriage, it is no answer that, the servant acted improperly in the management of it. If it were, it might be contended that if a master directs his servant to drive slowly, and the servant disobeys his orders and drives fast, and through his negligence occasions an injury, the master will not be liable. But that is not the law: the master in such a case will be liable, and the ground is, that he has put it in the servant's power to mismanage the carriage by intrusting him with it. And in this case I am of opinion that the servant was acting in the course of his employment, and till he had deposited the carriage in the Red Lion stables, in Castle Street, Leicester Square, the defendant (his master) was liable for any injury which might be committed through his negligence.'' Whatman v. Pearson 3 also shews that until the master's business is finished, the servant, however much he may disobey the order of his master, is acting in the master's employment so as to make the master liable for his negligence. Cockbukn, C.J. I am of opinion that the rule must be discharged. I think the judgments of Maule and Cresswell, JJ., in Mitchell v. Grassweller* express the true view of the law, and the view which we ought to abide by; and that we cannot adopt the view of Erskine, J., in Sleath v. Wilson*, that it is because the master has intrusted the 1 6 C. & P. at p. 503. 2 9 C. & P. 607, 612. 3 L. E. 3 C. P. 422. 4 13 C. B. 237 ; 22 L. J. (C.P.) 100. 6 9 C. & P. 607, 612. sect, iij Storey v. Ashton. 87 servant with the control of the horse and cart that the master is responsible. The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant. I am very far from saying, if the servant when going on his master's business took a somewhat longer road, that owrng to this deviation he would cease to be in the employment of the master, so as to divest the latter of all liability; in such cases it is a question of degree as to how far the deviation could be considered a separate journey. Such a consideration is not applicable to the present case, because here the carman started on an entirely new and independent journey which had nothing at all to do with his employment. It is true that in Mitchell v. Crassweller the servant had got nearly if not quite home, while, in the present case, the carman was a quarter of a mile from home ; but still he started on what may be considered a new journey entirely for his own business, as distinct from that of his master ; and it would be going a great deal too far to say that under such circumstances the master was liable. Mellor, J. I am of the same opinion. Generally speaking, the master is answerable for the negligent doing of what he employs his servant to do; and it is not, as Cresswell, J., says, because the servant in executing his master's orders, does so in a roundabout way, that the master is to be' exonerated from liability. But here, though the carman started on his master's business, and had delivered the wine and collected the empty bottles, when he had got within a quarter of a mile from the defendant's office, he proceeded in a directly opposite direction, and as soon as he started in that direction he was doing nothing for his master; on the contrary, every step he drove was away from his duty. [Bditob's Note. With this may be contrasted a recent Irish case, where two grooms, whilst riding their master's horses to a forge to be shod, amused them- selves, on their way, by racing with each other; and, in' so doing, hurt a passer-by. This injury was held to have been inflicted in the course of the employment; (Gracey v. Belfast Tramway Go. L. E. Ir. 1901, Q. B. 322). In some cases where a question of this kind arises as to whether the negli- gence occurred in the course of the master's employment, there has been some subsequent act of a third party which led up to the damage. It has therefore to be decided whether the original negligence formed any part of the " effective cause " of the damage done. This is in each case a question of fact for the jury to determine. Cf. Engelhart v. Farrant (L. E. [1897] 1 Q. B. 240) ; McDowell v. G. "W. Ey. Co. (supra, p. 22) ; Lynch v. Nuhdik (supra, p. 27).] 88 Select Cases on the Lew of Torts. [part i. [The liability of the employer does not extend to torts which Ms servants commit against their fellow-servants in the course of an employment vjherein they are occupied in common with each other. For, by his contract of service, a servant impliedly consents to run the risks of his service; including the risk of having negligent fellow- servants.] PRIESTLEY v. FOWLER. Court of Exchequer. 1837. 3 M. and W. 1. Case. The declaration stated that the plaintiff was a servant of the defendant in his trade of a butcher ; that the defendant had desired and directed the plaintiff, so being his servant, to go with and take certain goods of the defendant's, in a certain van of the defend- ant then used by him, and conducted by another of his servants, in carrying goods for hire upon a certain journey; that the plaintiff, in pursuance of such desire and direction, accordingly commenced and was proceeding and being carried and conveyed by the said van, with the said goods; andi it became the duty of the defendant, on that occasion, to use due and proper care that the said van should be in a proper state of repair, that it should not be overloaded, and that the plaintiff should be safely and securely carried thereby : nevertheless, the defendant did not use proper care that the van should be in a sufficient state of repair, or that it should not be overloaded, or that the plaintiff should be safely and securely carried thereby, in con- sequence of the neglect of all and each of which duties the van gave way and broke down, and the plaintiff was thrown with violence to the ground, and his thigh was thereby fractured, &c. Plea, not guilty. At the trial before Park, J., at the Lincolnshire Summer Assizes, 1836, the plaintiff, having given evidence to shew that the injury arose from the overloading of the van, and that it was so loaded with the defendant's knowledge, had a verdict for £100. In the following Michaelmas Term, Adams, Serjt., obtained a rule to shew cause why the judgment should not be arrested, on the ground that the de- fendant was not liable in law, under the circumstances stated in the declaration. ******* The judgment of the Court was delivered by Lord Abinger, C.B. This was a motion in arrest of judgment, after verdict for the plaintiff, upon the insufficiency of the declaration. [His lordship stated the declaration.] It has been objected to this declaration, that it contains no premises from which the duty of the sect. II.] Priestley v. Fowler. 89 defendant, as therein alleged, can be inferred in law- or, in other words, that from the mere relation of master and servant no contract, and therefore no duty, can be implied on the part of the master to cause the servant to be safely and securely carried, or to make the master liable for damage, to the servant, arising from any vice or imperfection, unknown to the master, in the carriage, or in the mode of loading and conducting it. For, as the declaration contains no charge that the defendant knew any of the defects mentioned, the Court is not called upon to decide how far such knowledge on his part of a defect unknown to the servant, would make him liable. It is admitted that there is no precedent for the present action by a servant against a master. We are therefore to decide the question upon general principles, and in doing so we are at liberty to look at the consequences of a decision the one way or the other. If the master be liable to the servant in this action, the principle of that liability will be found to carry us to an alarming extent. He who is responsible by his general duty, or by the terms of his contract, for all the consequences of negligence in a matter in which he is the principal, is responsible for the negligence of all his inferior agents. If the owner of the carriage is therefore responsible for the sufficiency of his carriage to his servant, he is responsible for the negligence of his coach-maker, or his harness-maker, or his coachman. The footman, therefore, who rides behind the carriage, may have an action against his master for a defect in the carriage owing to the negligence of the coach-maker, or for a defect in the harness arising from the negligence of the harness-maker, or for drunkenness, neglect, or want of skill in the coachman ; nor is there any reason why the principle should not, if applicable in this class of cases, extend to many others. The master, for example, would be liable to the servant for the negligence of the chambermaid, for putting him into a damp bed; for that of the upholsterer, for sending in a crazy bedstead, whereby he was made to fall down while asleep and injure himself; for the negligence of the cook,'in not properly cleaning the copper vessels used in the kitchen : of the butcher, in supplying the family with meat of a quality in- jurious to the health ; of the builder, for a defect in the foundation of the house, whereby it fell, and injured both the master and the servant by the ruins. The inconvenience, not to say the absurdity of these consequences, affords sufficient argument against the application of this principle to the present case. But, in truth, the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is, no doubt, bound to provide for the safety of his servant in the course of his employment, to the best of his judgment, 90 Select Cases on the Law of Torts. [part i. information, and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself : and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master. In that sort of employment, especially, which is described in the declaration in this case, the plaintiff must have known as well as his master, and probably better, whether - the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely. In fact, to allow this sort of action to prevail would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against his master for damages could possibly afford. < The judgment ought to be arrested. [Editob's Note. This case is important in legal history as the starting-point of the Anglo-American doctrine of " Common Employment," which makes a master's responsibility (for the conduct of his servants) less in the case of injuries sustained by servants of his own than in that of injuries sustained by strangers. This doc- trine has not been accepted by the jurists of any continental country. In England, "Lord Abinger planted it, Baron Alderson watered it, and the Devil gave it increase." Experience of its working gradually aroused a bitter hostility against it amongst the English working-classes ; and Parliament ultimately restricted it by the complicated statutory qualifications imposed in the Employers' Liability Act 1880 (43 & 44 Vict, u. 42). But its main principle still remains law; although (as Lord Esher, M.B., said), " So long as the general rule holds, that a master should be liable to every- body for his servant's act or negligence, there is no just or logical reason why he should not be so liable to a fellow- servant of that servant." For the doctrine to apply, the two servants must have not merely a common Employer but also a common Employment. As Sir F. H. Jeune has said, "If a person carried on both the occupation of a banker and that of a brewer, in different localities, and his bill-clerk was run over by his drayman," the defence could not be set up by him; (The Petrel, L. B. [1893] P. D. 320). But it is not necessary that they should be working for the same immediate purpose, or in the same place. " If there be a common master, the signalman at one end of a rifle range is clearly in common employment with the marker at the other ; and, to give a stronger instance, a servant who unskilfully packs dynamite in a factory, and another who unpacks it at a distant warehouse and is injured by its explosion, are clearly in common employment " ; per Lord Hersohell, in Johnson v. Lindsay, L. E. [1891] App. Ca. 371.] I [See also Cameron v. Nysteom, infra, p. 94.] sect, ii.] Murray v. Currie. 91 [ Where a person contracts to do a piece of work for another, the liability (as Principal) for any torts committed by this contractor's servants, in doing it, will fall only on him, and not on that other for whom the work is to be done,] MURRAY v. CURRIE. Court or Common Pleas. 1870. L.R. 6 C.P. 24. The declaration stated that the defendant, by his servants and workmen, being engaged in the unloading of a vessel in or near a public dock in Liverpool, by his said servants and workmen so negligently and improperly conducted himself about the premises that by means thereof certain machinery or cog-wheels were set in motion, whereby the hand of the plaintiff, who was lawfully upon the ship, was drawn in between the said cog-wheels and crushed and injured, ifcc. Pleas, first, not guilty; secondly, a denial that the defendant by his servants and workmen was engaged in unloading the ship. The cause was tried before the assessor of the Passage Court, Liverpool, on the 20th of July last. The defendant, it appeared, was the owner of the steam-ship Sutherland, which at the time of the accident in question was alongside a quay in the Nelson Dock. For the purpose of facilitating the loading and unloading of cargo the vessel was provided with a winch at each of her four hatchways, worked by a donkey-engine. On the 15th of January last, whilst the plaintiff, who was a dock-labourer, was engaged together with one Davis, one of the Sutherland's crew, in unloading the vessel by means of one of the winches, his hand was, through the negligence of Davis, jammed between the cog-wheel and pinion, and much injured. The work of unloading the vessel was being done by one Kennedy, a master steve- dore ' ; the men engaged in it were under his direction and control. Kennedy, who was called for the defendant, stated that he supplied the labour for the unloading and the working of the steam-engine; that Davis worked the winch, and was fully competent : that the office [i.e. the defendant] paid him, but deducted the sum paid from his (Kennedy's) bills ; that all the unloading was under his control and that of his foreman ; that he would have had to get labour elsewhere, if the ship had not found men ; that the ship-owner selected those of the crew who were employed in unloading, but he (Kennedy) selected the work for them, and had control over it ; and that he could have refused to employ Davis or any man whom he thought incompetent. 1 [Editor's Note. Stevedore = one who stows, or tmstows, the cargoes of ships; (from the Spanish estivador).] 92 Select Cases on the Law of Torts. [pakt i. The verdict was by consent entered for the plaintiff, damages £50, with leave to the defendant to move to enter a verdict for him if the Court should be of opinion that the defendant was not under the circumstances liable for the negligence of Davis, — the Court to be at liberty to draw inferences of fact. C. Russell obtained a rule nisi, citing Mwrphey v. Caralli l . Herschell shewed cause. Davis was the servant of the defendant, and not of Kennedy, the stevedore, and the defendant was therefore responsible for his negligence. The fact that Davis was at the time of the accident acting under the direction of the stevedore makes no difference. [Bovill, C.J. The question is, who was working the winch, — the defendant or Kennedy ? Beett, J. If Davis by his negligence had damaged part of the cargo, would not Kennedy have been liable to the owner?] It is submitted that he would not. The true test is, whose servant was Davis, not under whose immediate orders he was working; or, as Crompton, J., says in Sadler v. Henlock*, "The test is, whether the defendant retained the power of controlling the work." [Bebtt, J. How do you meet the case of Murphey v. Caralli ' cited by Mr Russell on moving?] There the work was being done under the control and super- intendence of the warehousekeeper, and for his benefit ; the persons through whose negligence the injury was caused were not in any sense acting as the servants or in pursuance of orders of the defendant. The case is so put by Bramwell, B., in his judgment. Willes, J. This is not a question arising between shipowner and charterer. The employment of- stevedores has grown out of the duties of the owner to load and unload the ship. This duty used formerly to be executed by the crew ; but, in dealing with large cargoes, the exigencies of modern commerce have created a necessity for the employment of persons skilled in the particular work of stowing cargo. The steve- dores, however, are not the servants of the owner of the ship ; but they are persons having a special employment, with entire control over the men employed in the work of loading and unloading. They are alto- gether independent of the master or owner. In one sense, indeed, they may be said to be agents of the owner; but they are not in any sense his servants. They are not put in his place to do an act which he intended to do for himself. I apprehend it to be a clear rule, in ascertaining who is liable for the act of a wrong- doer, that you must look to the wrong-doer himself or to the first person in the ascending line who is 1 3 H. & C. 462 ; 34 L. J. (Ex.) 14. 2 4 E. & B. 570, 578 ; 24 L. J. (Q.B.) 138, 141. sect. ii. J Murray v. Gurrie. 93 the employer and has control over the work. You cannot go further back, and make the employer of that person liable. The question here is, whether Davis, who caused the accident, was employed at the time in doing Kennedy's work or the shipowner's. It is possible that he might have been the servant of both; but the facts here seem to me to negative that. The rule, out of which this case forms an exception, that a servant or workman has no remedy against his employer for an injury sustained in his employ through the negligence of a fellow- servant or workman, is subordinate to another rule, and does not come into operation until a preliminary condition is fulfilled : it must be shewn that, if the injury had been done to a stranger, he would have had a remedy against the person who employed the wrong-doer. Here, I apprehend, the defendant would not have been Jiable to the charterer if the wrongful act of Davis had caused damage to any part of the cargo; and for this simple reason, that the person doing the work in the performance of which the damage was done was not doing it as his servant. , He was acting altogether independent of his control. The defendant could not have taken him away from the work. It was Kennedy's work that he was employed upon, and under Kennedy's control. The liability of a master for, the acts of his servant extends only to such acts of the servant as are done by him in the course of the master's service. The master is not liable for acts done by the servant out of the scope of his duty, even though the master may have entered into a bargain that his servant should be employed by another, and is paid for such service, as was done here. It seems to me to be quite plain that the defendant incurred no liability for the act of Davis. ******* Brett, J. The ordinary contract and liability of a stevedore is well established; and the only question here is whether there was anything in the evidence to take the case out of the ordinary rule. The only circumstance relied on for that purpose is that the defend- ant placed the services of Davis at the disposal of the stevedore. But I apprehend it to be a true principle of law that, if I lend my servant to a contractor, who is to have the sole control and superintendence of the work contracted for, the independent contractor is alone liable for any wrongful act done by the servant while so employed. The servant is doing, not my work, but the work of the independent contractor. Rule absolute. [Editor's Note. See also a terse summary by Williams, J., cited at p. 69 swpra.'] 94 , Select Oases on the Law of Torts. [part i. [And if a tort so committed by the contractor's servant should injure a servant of the ulterior employer, the contractor cannot set up, against the injured servant, the defence of Common Employment.'] CAMERON v. NYSTROM. Privy Council. L.R. [1893], A.C. 308. Appeal from a decree of the New Zealand Court of Appeal, con- firming a verdict whereby the appellants were ordered to pay to the respondent £750 damages with costs. The action was in respect of injuries sustained by the respondent through the negligence of the appellants under the circumstances dis- closed in the judgment of their Lordships. The defence was threefold: (1) a general denial; (2) negligence of the respondent; (3) that he and the appellants' workmen were engaged in a common employment at the time of the injury. "Williams and Denniston, JJ., held that the appellants were separate and independent contractors, and subject to no control of the captain of the ship; and also that there was no contributory negligence on the part of the plaintiff. The Chief Justice and Edwards, J. (who as junior judge with- drew his judgment, the Court being equally divided), held that the appellants were "under the control of the captain, and that they and the respondent were engaged in a common employment. Bighorn, Q.C., and Sharpe, for the appellants, contended that the Chief Justice's view was right, and that both the appellants and their servants were on the evidence under the orders of the captain. The appellants were, therefore, in a common employment with the re- spondent. If, on the other hand, the appellants were not under the orders of the captain, but acting with independent authority, then it must be considered that on the evidence the person who did the injury was not so much in their employ as in that of the captain. In either view the respondent was not entitled to succeed, and moreover the evidence shewed that he was guilty of contributory negligence. Reference was made to Johnson v. Lindsay^ and to Murray v. Gurrie 2 , Ollivier, for the respondent, was not heard. The judgment of their Lordships was delivered by The Lord Chancellor : — The respondent, the plaintiff in this action, was a seaman employed on board the vessel Brahmin. He was at work upon that vessel at the time when he received the injury in respect of which the action was brought. The injury was caused by the fall of some coils of wire, owing to the breaking of part of the gear which was being used in the l [1891] A. C. 371. 2 Law Eep. 6 C. P. 24 ; supra, p. 91. sect. ii. J Cameron v. Nystrom. 95 discharging of the cargo. The discharging gear was, as the jury have found, fixed in an improper and negligent manner, and its being so fixed was the cause of the injury to the plaintiff. The defendants were a firm of stevedores employed in discharging the vessel. They were engaged as stevedores by the master of the vessel to discharge her at the rate of so much a ton. The vessel was to find the gear, but the stevedores brought their own men, foremen and workmen, to effect the discharge. The person guilty of the negli- gence was the foremen of the defendants, a man named Gellatly, who rigged up the gear. The question raised in the action was whether, in those circum- stances, the defendants were responsible to the plaintiff for the injury he received. At the trial, apart from a subsidiary question of contributory negligence, to which their Lordships will call attention presently, the only defence raised, beyond the defence that there was no negligence — a defence which has been negatived by the jury — was that the plaintiff could not maintain an action against the defendants, even assuming that the foreman was their servant, and that it was by his negligence the injury was occasioned, because the plaintiff was engaged in a common employment with the stevedores' men, and that their being thus engaged in ■ a common employment precluded the plaintiff in point of law from any right of action. At the time when the question was argued before the Court below, the case of Johnson v. Lindsay, in which there was a difference of opinion in the Court of Appeal, had been decided in the Court of Appeal ', but not in the House of Lords 2 . The majority of the Court of Appeal had held, Pry, L.J., dissenting, that it was not necessary to the defence of common employment that the plaintiff should be in the employment of the master whose servant's negligence caused him injury. The majority of the Court came to the conclusion that the sub-contractor and his servants might all be regarded as in the employ- ment of the contractor, whose servant the plaintiff was, and that this sufficed to establish the defence of common employment. In the House of Lords the decision was reversed, and it was held that in order to make this defence ' available there must not only be common employment, but common employment under the master whose servant was guilty of negligence. It is to be observed that the question of common employment only arises as a defence, on the assumption that the person who did the injury was the servant of the person sued. Unless this be the case the person sued is under no liability, because he is sued in respect of an injury not caused by himself or by anyone for whom he is responsible. 1 23 Q. B. D. 508. 2 [1891] A. C. 371. 96 Select Cases on the Law of Torts. [part i. And therefore common employment only becomes necessary as a defence, and is only relevant when the person doing the injury is a servant of the person sued. In their Lordships' opinion the House of Lords has determined that where the person sued has committed negligence by one of his servants the defence of common employment is only available to him where he can shew that the person suing was also his servant at the time of the occurrence of the injury. In the judgment delivered by one of their Lordships in the case of Johnson v. Lindsay ' the law was thus stated : "These authorities are sufficient to establish the proposition that unless the person sought to be rendered liable for the negligence of his servant can shew that the person so seeking to make him liable was himself in his service, the defence of common employment is not open to him." It is clear, therefore, that in the present case the defence of common employment can only arise and be successful if the defendants can shew, admitting that the negligence of their foreman Gellatly caused the injury, that the plaintiff was in their service. Otherwise the doctrine of common employment has no appli- cation. When that was once found to be the law, and the learned counsel who appeared for the defendants was pressed with it, he admitted that it was impossible for him, after the decision of the House of Lords in Johnson v. Lindsay 1 , to maintain that the defend- ants were free from liability by reason of the doctrine of common employment. But he then contended that the defendants were not liable, inas- much as the person who caused the injury was not at the time really acting in the service of the defendants, but as the servant of the shipowner. No doubt if that could be established it would afford a defence to the action. This appears to be the only question open on this appeal, after the decision in Johnson v. Lindsay 1 - When the evidence is examined the contention appears to their Lordships to be utterly untenable. Gellatly was employed and paid by the stevedores. At the time when he was doing the work in question he was doing it for the stevedores, inasmuch as the stevedores were to be paid a lump sum for discharging the vessel; and it was to enable them to earn the sum so contracted to be paid to them that Gellatly was working at the time he did the act complained of. There was thus present every element necessary to establish that he was the servant of the stevedores. The case for the defendants must go this length, that the stevedores would not have been liable, but that the shipowner would, to any person injured by the negligence of one of the stevedores' men. It seems to their Lordships only necessary to state the length to which the proposition of the defendants must go to shew that it cannot be sustained. 1 [1891] A. C. 371. sect. ii. J Cameron v. Nystrom. 97 Reliance was placed upon expressions used in the evidence, with regard to the extent to which the mate and master had the right to direct and control the acts of the stevedores' servants. That does not seem to their Lordships in the least inconsistent with their being the servants of the stevedores, and not the servants of the shipowner. There was no express agreement with regard to the extent to which the master and mate should have control over them. That control is only to be implied from the circumstances in which they were employed. The relation of stevedore to shipowner is a well-known relation, involving no doubt the right of the master of the vessel to control the order in which the cargo should be discharged, and various other incidents of the discharge, but in no way putting the servants of the stevedore so completely under the control and at the disposition of the master as to make them the servants of the shipowner, who neither pays them, nor selects them, nor could discharge them, nor stands in any other relation to them than this, that they are the servants of a contractor employed on behalf of the ship to do a particular work. For these reasons their Lordships think that the main question raised in this action must be decided in favour of the plaintiff. Another question was raised at the trial : whether the defendants are exempt from responsibility, because the plaintiff was in a position in which he would be likely to be injured if any accident happened to the discharging gear. The jury found that placing the defendant where he was working at the time of the accident was in the circum- stances an act of negligence. It was admitted by the learned counsel for the defendants that unless that involved, and it clearly does not involve, a finding of personal negligence on the part of the plaintiff, it was impossible to argue that it was a defence to the action. Their Lordships will therefore humbly advise Her Majesty that the judgment appealed from should be affirmed, and the appeal dis- missed with costs. 98 Select Cases on the Law of Torts. [part i. [Thus, if a livery-stable keeper let out a coachman and horses for use in a customer's own carriage, he, and not the customer, will be liable for damage done to strangers by this coachman whilst driving the carriage.] QUARMAN v. BURNETT. Court of Exchequer. 1840." 6 M. & W. 499. ******* Parke, B. The declaration was in case. It stated, that the plaintiff was possessed of a chaise and horse which he was driving ; that the defendants were possessed of a chariot, to which two horses were harnessed, which said carriage and horses were then under the care of the defendants ; and that the defendants so carelessly conducted themselves, that through the carelessness and negligence, want of proper caution, and improper conduct, of the defendants, the horses so harnessed started off with the carriage, without a driver or other person to manage, govern, or direct the same, whereby the defendants' carriage was struck against the plaintiff's carriage, and the plaintiff sustained personal injury. There were two pleas — first, not guilty ; secondly, that the carriage and horses were not under the care of the defendants. On the trial, it appeared that the defendants were two old ladies, who had been in the habit of employing a person of the name of Mortlock, and his daughter, who succeeded him in the business of a job-master, to supply them, originally with a fly and horse and driver, by the day, at a certain sum for the whole ; but about three years ago they became possessed of a carriage of their own, since which they had been furnished by Miss Mortlock occasionally with a pair of horses and a driver, by the day or drive, for which she charged and received a certain sum. She paid the driver by the week, and the defendants besides gave him a gratuity for each day's service. Eor the last three years, the same coachman constantly drove the defendants' carriage, and they had purchased a livery hat and coat for him, which, it appeared, were usually hung up in the passage of the defendants' house, and the coachman, before he drove, was in the habit of going in and putting on the coat and hat, and when he had finished the drive, of returning and replacing them. On the day in question, he wore the hat only, and when he had returned home with the ladies, and after they had got out of the carriage, the coachman went in to replace the hat, and left the horses without any one to hold them, and they set off whilst the coachman was so occupied, and ran against the plaintiff's carriage, overturned it, and inflicted serious personal injury sect, ii.] Quarman v. Burnett 99 on the plaintiff, besides doing damage to the carriage itself. It appeared that there was no other regular coachman in the job- mistress's yard, but when he was otherwise employed, some other person in the yard acted as coachman, but never for the defendants since they had their own carriage, though occasionally before. It was objected, that the defendants were not liable, because the damage was caused by the neglect of the coachman, who was not their servant, but the servant of his mistress, Miss Mortlock. For the plaintiff, it was contended, that they were liable for the coachman's neglect, independently of the special circumstances of the case ; and that there were besides two peculiar grounds, on which the defendants ought to be held responsible. First, that there was evidence to go to a jury of selection and choice by the defendants of the particular coachman, so as to make him their servant; and secondly, that when the coachman went in to leave his hat, he was, in so doing, acting as the servants of the defendants, and therefore his neglect was theirs. The jury found for the plaintiff, with £198. 9s. damages, and my brother Maule reserved liberty to move to enter a nonsuit. On the argument, in the course of which the principal authorities were referred to, we intimated our opinion that we should be called upon to decide the point which arose in the case of Laugher v. Pointer ', and upon which not only the Court of King's Bench, but the twelve Judges differed ; as the special circumstances above mentioned did not seem to us to make any difference : and we are still of opinion that they did not. It is undoubtedly true, that there may be special cir- cumstances which may render the hirer of job-horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which occasions the damage complained of, or to absent himself at one particular moment, and the like. As to the supposed choice of a particular ser- vant, my brother Maule thought there was some evidence to go to the jury, of the horses being under the defendants' care, in respect of their choosing this particular coachman. We feel a difficulty in saying that there was any evidence of choice, for the servant was the only regular coachman of the job-mistress's yard ; when he was not at home, the defendants had occasionally been driven by another man, and it did not appear that at any time since they had their own carriage, the regular coachman was engaged, and they had refused to be driven by another ; and the circumstance of their having a livery, for which he was measured, is at once explained by the fact, that he was the only servant of Miss Mortlock ever likely to drive them. i 5 B. & C. 547. 7—2 100 Select Cases on the Law of Torts. [part i. Without, however, pronouncing any opinion upon a point of so much nicety, and so little defined, as the question whether there is some evidence to go to a jury, of any fact, it seems to us, that if the de- fendants had asked for this particular servant, amongst many, and refused to be driven by any other, they would not have been responsible for his acts and neglects. If the driver be the servant of a job-master, we do not think he ceases to be so by reason of the owner of the carriage preferring to be driven by that particular servant, where there is a choice amongst more, any more than a hack post-boy ceases to be the servant of an innkeeper, where a traveller has a particular prefer- ence of one over the rest, on account of his sobriety and carefulness. If, indeed, the defendants had insisted upon the horses being driven, not by one of the regular servants, but by a stranger to the job-master, appointed by themselves, it would have made all the difference. Nor do we think that there is any distinction in this case, occasioned by the fact that the coachman went into the house to leave his hat, and might therefore be considered as acting by their directions, and in their service. There is no evidence of any special order in this case, or of anj' general order to do so, at all times, without leaving any one at the horses' heads. If there had been any evidence of that kind, the defendants might have been well considered as having taken the care of the horses upon themselves in the meantime. , Besides these two circumstances, the fact of the coachman wearing the defendants' livery with their consent, whereby they were the means of inducing third persons to believe that he was their servant, was mentioned in the course of the argument as a ground of liability, but cannot affect our decision. If the defendants had told the plaintiff that he might sell goods to their livery servant, and had induced him to contract' with the coachman, on the footing of his. really being such servant, they would have been liable on such con- tract ; but this representation can only conclude the defendants with respect to those who have altered their condition on the faith of its being true. In the present case, it is matter of evidence only of the man being their servant, which the fact at once answers. We are therefore compelled to decide upon the question left unsettled by the case of Laugher v. Pointer, in which the able judg- ments on both sides have, as is observed by Mr Justice Story in his book on Agency, page 406, " exhausted the whole learning of the subject, and should on that account attentively be studied." We have considered them fully, and we think the weight of authority, and legal principle, is in favour of the view taken by Lord Tenterden and Mr Justice Littledale. The immediate cause of the injury is the personal neglect of the coachman, in leaving the horses, which were at the time in his sect, ii.] Quamnan v. Burnett. 101 immediate care. The question of law is, whether any one but the coachman is liable to the party injured ; for the coachman cer- tainly is. Upon the principle that qui facit per alium facit per se, the master is responsible for the acts of his servant ; and that person is un- doubtedly liable, who stood in the relation of master to the wrong-doer — he who had selected him as his servant, from' the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey ; and whether such servant has been appointed by the master directly, or inter- mediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference. But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist : and no other person than the master of such servant can be liable, on the simple ground, that the servant is the servant of another, and his act the act of another ; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable ; and to make such person liable, recourse must be had to a different and more extended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury which arises by the act of another person, in carrying into execution that which that other person has contracted to do for his benefit. That, however, is too large a position, as Lord Chief Justice Eyre says in the case of Bush v. Steinman\ and cannot be maintained to its full extent, without overturning some decisions, and producing consequences which would, as Lord Tenterden observes, " shock the common sense of all men " : not merely would the hirer of a post-chaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles if they had the management of them, or their servants if they were managed by servants, but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness, whilst passing along the street. It is true that there are cases — for instance, that of Bush v. Steinman, Sly v. Edgley*, and others, and perhaps amongst them may be classed the recent case of Bandleson v. Murray — in which the occupiers of land or buildings have been held responsible for acts of others than their servants, done upon, or near, or in respect of their property. But these cases are well distinguished by my brother Littledale, in his very able judgment in Laugher v. Pointer. The rule of law may be, that where a man is in possession of fixed property, he must take care that his property is so used or managed, 1 1 Bos. & P. 404. 2 6 Esp. 6. 102 Select Gases on the Law of Torts. [pabt i. that other persons are not injured ; and that, whether his property be managed by his own immediate servants, or by contractors with them, or their servants. Such injuries are in the nature of nuisances : but the same principle which applies to the personal occupation of land or houses by a man or his family, does not apply to personal moveable chattels, which, in the ordinary conduct of the affairs of life, are intrusted to the care and management of others, who are not the servants of the owners, but who exercise employments on their own account with respect to the care and management of goods for any persons who choose to intrust them with them. It is unnecessary to repeat at length the reasons given by my brother Littledale for this distinction, which appear to us to be quite satisfactory; and the general proposition above referred to, upon which only can the de- fendants be liable for the acts of persons who are not their servants, seems to us to be untenable. We are therefore of opinion that the defendants were not liable in this case, and the rule must be made absolute to enter a verdict for the defendants on the second [Editor's Note. In the case of Donovan v. Laing (L. E. [1893] 1 Q. B. 625) Bowen, L.J., said: — "By 'the employer' is meant the person who has a right, at the moment, to control the doing of the act. ...There are two ways in which a con- tractor may employ his men and his machines. He may contract to do the work, and the end being prescribed, the means of arriving at it may be left to him. Or he may contract in a different manner, an'), not doing the work himself, may place his servant and plant under the control of another — that is, he may lend them — and in that case he does not retain control over the work. It is clear here that the defendants, in the case now before the Court, placed their man [with a crane which he was in charge of] at the disposal of Jones & Co., and did not have any control over the work he was to do. The argument for the plaintiff was founded on Quarman v. Burnett; but it really has nothing to do with the point presented in this appeal. If a man lets out a carriage, on hire to another, he in no sense places the coachman under the control of the hirer, except that the latter may indicate the destination to which he wishes to be driven. The coachman does not become the servant of the person he is driving ; and if the coachman acts wrongly, the hirer can only complain to the owner of the carriage. If the hirer actively interferes with the driving and injury occurs to any one, the hirer may be liable, not as a master, but as the procurer and cause of the wrongful act complained of. But in the present case the defendants parted, for a time, with control over the work of the man in charge of the crane ; and their responsibility for his acts ceased for a time."] sect. ii. J Ellis v. The Sheffield Gas Consumers' Co. ' 103 [But if the act which the independent contractor is employed to do be in itself tortious, the ultimate employer will be liable for damage done by the contractor's servants in the course of it.] ELLIS v. THE SHEFFIELD GAS CONSUMERS' COMPANY. Court of Queen's Bench. 1853. 2 Ellis & Blackburn 767. Count for unlawfully digging a trench in a public street and high- way, and heaping up stones and earth, excavated from the said trench, upon the said street and highway, so as to obstruct it, and to be a common public nuisance ; whereby plaintiff, lawfully passing along the said public street and highway, fell over the said stones and earth, so heaped up as aforesaid, and broke her arm. Plea : Not guilty. Issue thereon. On the trial, before Wightman, J., at the last York Assizes, it appeared that the defendants had made a contract with persons trading under the firm of Watson Brothers, of Sheffield, by which Watson Brothers contracted to open trenches along the streets of Sheffield in order that the defendants might lay gas pipes there, and afterwards to fill up the trenches and make good the surface and flagging. Watson Brothers did accordingly, by their servants, open the trenches along one of the streets in question, and, after the pipes were laid, proceeded to fill up the trench and restore the flagging. In doing so, the ser- vants of Watson Brothers carelessly left a heap of stones and earth upon the footway ; and the plaintiff, passing along the street, fell over them and hroke her arm. Neither the defendants nor Watson Brothers had any legal excuse for breaking open the street in the manner described, which was a public nuisance. It was objected, for the defendants, that the cause of the accident was the negligence of the servants of the contractors, Watson Brothers, for which , the defendants were not responsible. It was answered that the contract was to do an illegal act, viz. to commit a nuisance ; and, that being so, that the defendants were responsible. The learned Judge directed a verdict for the plaintiff, with leave to move to enter a verdict for the defendants. T. Jones now moved accordingly. The defendants cannot be re- sponsible for the act of the servants of their contractors ; Overton v. Freeman 1 . [Lord Campbell, C.J. In that case the parties made a contract to do a lawful act; for they were authorized to pave the streets : and the nuisance arose from the negligence of the sub-con- tractor, who, when he was negligent, was not doing what he was 1 11 Com. B. 867. 104 Select Oases on the Law of Torts. [pakt i. employed to do. But here Watson Brothers by the contract bound themselves to the defendants to commit a public nuisance. Do you say that a person who employs another to do an illegal act is not responsible for that act, unless the relation of master and servant exists between him and the actual tortfeasor !] . Yes ; a man is in no case answerable for the act of a contractor's servants ; Knight v. Fox 1 . [Eele, J. In that case the wrong complained of was negligence; and the defendant had not employed the contractor to be negligent. But it seems to me that, if trespass were brought for breaking a man's close, and the facts were that the plaintiff's fields had been ploughed up by persons who had contracted with the defendant to plough it at so much an acre, the verdict on Not guilty should pass for the plaintiff, inasmuch as the defendant had employed the men to commit the trespass. I should however like to know exactly how the facts were here. I suppose the contract was made as if the defendants had a right to open the street. Was the cause of the accident the opening of the street which the defendants had employed Watson Brothers to do 1 Or was it some act of negligence which would have been a nuisance even supposing the defendants had a right to open the street ? If it was the latter, it may be a question whether the defendants can be said to have employed Watson Brothers to do the act which has been the cause of the damage.] There is no ground for the distinction between a contractor employed for one purpose or another. In Peachey v. Rowland* such a distinction seems to be hinted at ; but there is no authority for it. In no case are the servants of the contractor the servants of the contractee ; and a man is not liable for the acts of another person's servants. Lord Campbell, C.J. I am of opinion that there should be no rule in this case. Mr Jones argues for a proposition absolutely untenable, namely, that in no case can a man be responsible for the act of a person with whom he has made a contract. I am clearly of opinion that, if the contractor does the thing which he is employed to do, the employer is responsible for that thing as if he did it himself. I perfectly approve of the cases which have been cited. In those cases the contractor was employed to do a thing perfectly lawful : the relation of master and servant did not subsist between the employer and those actually doing the work : and therefore the employer was not liable for their negli- gence. He was not answerable for anything beyond what he employed the contractor to dp, and, that being lawful, he was not liable at all. But in the present case the defendants had no right to break up the streets at all; they employed Watson Brothers to break up the streets, and in so doing to heap up earth and stones so as to be a public nuisance : and it was in consequence of this being done by their orders 1 5 Exch. 721. 2 22 L. J. N. S. C. P. 81. Hilary Term 1853. sect, ii.] Ellis v. The Sheffield Gas Consumers' Go. 105 that the plaintiff sustained damage. It would be monstrous if the party causing another to do a thing were exempted from liability for that act, merely because there was a contract between him and the person immediately causing the act to be done. Coleridge, J., concurred. Wightman, J. It seems to me, as it did at the trial, that the fact of the defendants having employed the contractors to do a thing illegal in itself made a distinction between this and the cases which have been cited. But for the direction to break up the streets, the accident could not have happened : and, though it may be that if the workmen employed had been careful in the way in which they heaped up the earth and stones the plaintiff would have avoided them, still I think the nuisance which the defendants employed the contractors to commit was the primary cause of the accident. Rule refused. (D) The Unborn Child. [.4 child cannot sue,' even after birth, for damage done to it before birth.] WALKER v. GREAT NORTHERN RY. CO. OP IRELAND. Irish Queen's Bench Division. 1890. 28 L.R. (Ir.) 69. [Action for personal injuries. Demurrer. The plaintiff's statement of claim set out that Mrs Annie Walker (the mother of the plaintiff) was, on June 12th, 1889, a passenger upon the defendants' railway ; she being then quick with child, namely, with the plaintiff, to whom she subsequently gave birth. But by the defendants' negligence in carrying the said Annie Walker and the plaintiff (then being en ventre sa mere), on the journey aforesaid, the plaintiff was permanently injured and crippled and deformed. He claimed £1000 damages.] * * # * * > * * O'Brien, J A woman who is with child is in a railway accident, and the infant when born is found to be deformed. Can. the infant maintain an action against the company for negligence 1 It is admitted that such a thing was never heard of before. And yet the circumstances which would give rise to such a, claim must at one time or another have existed. 106 Select Cases on the Law of Torts. [part i. But as there was a germ of life in esse at the time of the occurrence, so (it was thought) there might be found, in the principles of the law, the germs of that legal creation which, for the first time, professional ingenuity has now produced.... An innocent infant comes into the world with the cruel seal upon it of another's fault, and has to bear a burthen of infirmity throughout the whole of life. It is no wonder, therefore, that sympathy for undeserved misfortune has led to a kind of creative boldness in litigation. I should not myself see any abstract injustice in such an action being held to lie; or in the risks of a carrier being extended to the necessary incidents of nature. And possibly the consideration from the mother could be construed to include the child also, with but a slight further stretch beyond the analogy of the case of a servant and others that have been cited. But there are instances in the law where rules of right are founded upon the inherent and inevitable difficulty of proof. And it is easy to see on what a boundless field of speculation in evidence this new idea would launch us, and what a field would be open to extravagance of testimony (already great enough) if Science should carry her lamp — not over certain in its light where people have their eyes — into the unseen laboratory of nature.... The law may see such danger in the evidence, may have such a suspicion of human ignorance and presumption, that it will not allow any such question to be entered into at all. "We have, however, to see if the right claimed exists in the English legal system ; or even flows out of any admitted principles in that system. The law is, in some respects, a stream that gathers accretions with time from new relations and conditions. But it is also a land- mark that forbids advance on defined rights and engagements ; and if these are to be altered, if new rights and engagements are to be created, that is the province of legislation and not of judicial de- cision The criminal law has been referred to for the purpose of shewing that an unborn infant is a person in law ; because Murder may be committed if the infant be afterwards born and die from the effect of violence. But the criminal law is conversant with wrongs, and not with rights. It regards not the individual person but society. It results, not in a benefit to the party injured, but, in a satisfaction to the community. In the instance put, the violence is a continuing act, which takes away the life after birth. It would come nearer to the case for the plaintiff if it could be shewn that a prosecution for an Assault had ever been maintained in the case of an unborn infant. As to the cases cited in reference to property, that a child in the womb could take a gift by will — could be named executor — could be vouched in a recovery — could have waste restrained ; these and others are all cases of relations which are cast upon the infant by law, or by the sect, n.] Walker v. G. N. Ry. Co. of Ireland. 107 act of others, and which must be fulfilled in some way. The rule of the Roman law that made the infant a distinct person, when it was for his benefit, is alleged to include, in the extent of its principle, compensation for negligence. In reference to property 1 that rule has been adopted into English law • of which we have perhaps the most extreme instance in the case of Blasson v. Blasson (2 De G. J. k S. 665); where it was held that a gift to children "born and living" vested in those, who were unborn, and were not "living" except in the sense that they were not dead. Justinian's Digest says : " Qui in utero sunt, in toto ptene jure civili intelliguntur in rerum natura esse." Yet the examples given in the Digest relate wholly to personal status, the right of return, captivity in war, or patronage — relations and institutions unknown except to the Roman law. That law did not include personal compensation for negligence ; (railway stock was not as yet). The question remains, What has a carrier to say to this invisible persona of the civil law ? Railway liability is a branch of the general law of carriers. The stage-coach was the predecessor of the railway The carrier saw the person he was going to carry. His duty was to that person. He carried for hire. The carrier would be surprised to hear, while he was paid for one, that he was carrying two. To the railway company, as to the stage-coach manager, a 'person' is some one who can pay the fare. At the bar, the case was put, of a child born during the journey, and hurt. Whether the liability could be enlarged to comprehend a case of that kind — in which there was no consideration and no contract — may involve much difficulty. There one element would be wanting ; but here two are wanting — the right, as well as the consideration. There is no person ; and so no duty. Demurrer allowed. [Editob's Note. See the remarks already made, supra, p. 59.] 1 In the argument at the bar, the railway company's counsel distinguished the decision, in favour of the unborn child, in The George and Richard (supra, p. 59) as being based on a claim in the nature of a right of property or succession. 108 Select Oases on the Law of Torts. [pakt i. (E) The Effect of Death. [According to the old Common Law, the Death either of the person who had committed, or of the person who had been injured by, a Tort put an end to the liability. But if the wrong-doer's assets have been Praceably increased by the Tort, an action (not for the Tort but for the value of the Increase) will lie against his executor.] HAMBLY v. TEOTT, administrator. Court of King's Bench. 1775. 1 Cowper 371. In trover against an administrator cum testamento annexo, the declaration laid the conversion [as having been effected] by the testator in his lifetime. Verdict for the plaintiff. Kerby moved in arrest of judgment, upon the ground of this being a personal tort, which dies with the person. Buller. The objection is founded upon the old maxim of law which says ' actio personalis moritur cum persona.' But that objection does not hold here; nor is the maxim applicable to all personal actions; if it were, neither debt or assumpsit would lie against an executor or administrator. If it is not applicable to all personal actions, there must be some restriction ; and the true distinction is this : Where the action is founded merely upon an injury done to the person, and no property is in question ; there, the action dies with the person : as in assault and battery, and the like. But where property is concerned, as in this case, the action remains notwithstanding the death of the party. Where the damages are merely vindictive and uncertain, an action will not lie against an executor; but where the action is to recover property, there the damages are certain, and the rule does not hold. This is an action for sheep, goats, pigs, oats, and cyder converted by injustice to the use of the person deceased : Therefore, this action does not die with the person. Kerby contra, for the defendant, cited Palm. 330, where Jones, J., said, " that when the act of the testator includes a tort, it does not extend to the executor ; but being personal dies with him ; as trover and conversion does not lie against an executor for trover fait par luy." Here, the goods came to the hands of the testator, and he con- verted them to his own use. Trover is an action of tort ; and conver- sion is the gift of the action : No one is answerable for a tort, but he sect, ii.] Harnbly v. Trott. 109 who commits it; consequently this action can only be maintained against the person guilty of such conversion. But here the conversion is laid to be by the testator. Therefore the judgment must be arrested. ******* Lord Mansfield. Where the cause of action is money due, or a contract to be performed, gain or acquisition of the testator, by the work and labour, or property of another, or a promise of the testator express or implied ; where these are the causes of action, the action survives against the executor. But where the cause of action is a tort, or arises ex delicto (as is said in Sir T. Raym. 57, Hole v. Bland- ford), supposed to be by force and against the King's peace, there the action dies ; as battery, false imprisonment, trespass, words, nuisance, obstructing lights, diverting a water course, escape against the sheriff, and many other cases of the like kind.... But in the case of Sir Henry Sherrington (who had cut down trees upon the Queen's land, and converted them to his own use in his life- time), upon an information against his widow, after his decease, Manwood, J., said, " In every case where any price or value is set upon the thing in which the offence is committed, if the defendant dies, his executor shall be chargeable; but where the action is for damages only, in satisfaction of the injury done, there his executor shall not be liable.'' These are the words Sir Thomas Raymond refers to. Here therefore is a fundamental distinction. If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, as beating or imprisoning a man, &c, there, the person injured has only a reparation for the delictum in damages to be assessed by a jury. But where, besides the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. As for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man's trees, but for the benefit arising to his testator for the value or sale of the trees he shall.' So far as the tort itself goes, an executor shall not be liable ; and therefore it is, that all public and all private crimes die with the offender, and the executor is not chargeable ; but so far as the act of the offender is beneficial, his assets ought to be answerable ; and his executor therefore shall be charged. There are express authorities, that trover and conversion does not lie against the executor : I mean, where the conversion is by the testator. Sir William Jones, 173 — 4 ; Palmer, 330. There is no saying that it does. The form of the plea is decisive, viz. that the testator was not guilty ; and the issue is to try the guilt of the testator. And no 110 Select Cases on the Law of Torts. [part i. mischief is done ; for so far as the cause of action does not arise ex delicto, or ex maleficio of the testator, but is founded in a duty, which the testator owes the plaintiff; upon principles of civil obligation, another form of action may be brought, as an action for money had and received. Therefore, we are all of opinion that the judgment must be arrested. [Editor's Note. Along with this case, it is well to read and consider the elaborate discussion of it in Phillips v. Homfray, L. E. 24 Ch. Div. 439; and also Peek v. Gurney, infra. The action against the executor for " money had and received," of which Lord Mansfield speaks, would be based, not on a Tort, but on an implied contract arising out of the Tort. On the ancient rule see Beeves' History of English Law (Finlason's ed.), in. 403. It is important that the student should notice the statutory enactments which have largely removed these ancient common-law immunities by giving remedies — (a) for wrongs committed by a person, since deceased, "in respect of property, real or personal," 3 & 4 Wm. 4, c. 42, k. 2; (6) for wrongs committed against a person, since deceased, "in respect of goods and chattels," 4 Ed. 3, u. 7, and in respect of "real estate," 3 & 4 Wm. 4, c. 42, s. 2. But the remedies under the Act of William 4 are available only during a very brief period after the death. And it will be seen that none of these enactments affect the common-law rule so far as torts to the Person . are concerned, e.g. assault or libel or deceit.] SECT. III. J m SECTION III. GENERAL EXCEPTIONS TO LIABILITY. (A) Acts of the State. [iVb action can be brought by an alien, if he be neither permanently nor even temporarily under allegiance to the English Crown, for any damage inflicted on him by the authority of the Crown A THE SECRETARY OF STATE IN COUNCIL OF INDIA v. KAMACHEE BOYEE SAHABA Privy Council. 1859. 13 Moohe, P. C. 22. ******* Lord Kingsdown. This is an appeal from a decree of the equity side of the Supreme Court of Judicature at Madras, by which it was declared that the respondent (the plaintiff in the suit below), as the eldest widow of Sevajee, late Rajah of Tanjore, who had died intestate, was entitled to inherit and possess, as his heir and legal representative, his private and particular estate and effects, real and personal. ...The Court further declared that the defendants, the East India Company, were trustees for the plaintiff for and in respect of the private and particular estate and effects, real and personal, left by Sevajee at the time of his death, and possessed by them, their officers, servants and agents, as in the Bill mentioned. In the very able argument addressed to us at the bar, many objections were made by the appellant's counsel to this decree. But the main point taken, and that on which their Lordships think that the case must be decided, was this, — that the East India Company, as trustees for the Crown, and under certain restrictions, are empowered to act as a Sovereign State in transactions with other Sovereign States in India ; that the Rajah of Tanjore was an independent Sovereign in India; that on his death in the year 1855, the East India Company, in the exercise of their sovereign power, thought fit, from motives of state, to seize the Raj of Tanjore and the whole of the property the subject of this suit, and did seize it accordingly ; and that over an act so done, whether rightfully or wrongfully, no municipal court has any jurisdiction. , The general principle of law was not, as indeed it could not with any colour of reason be, disputed. The transactions of independent 112 Select Oases on the Law of Torts. [paet i. States between each other are governed by other laws than those which municipal courts administer. Such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make. But it was contended, on the part of the respondent, that this case did not fall within the principle, for the following reasons. Firstly, it was said that the East India Company did not stand in the position of an independent Sovereign ; for such powers of sovereignty as were exercised on behalf of the Company were vested, not in the Company, but in the Governor-General and Council, who are protected by legis- lative enactments for what they may do in that character. Secondly, that the seizure in this case did not take place by the exercise of a sovereign power against another independent Sovereign ; but was a mere succession, by (an asserted) legal title, to property alleged to have lapsed to the Company. And, thirdly, that there is a distinction between the public and private property of the Rajah ; and that the Company never intended to exercise their sovereign powers as to the latter, whatever they might do with respect to the former; so that the Company, therefore, are in possession, by the unauthorized act of their officers, of property for which no protection can be claimed on the grounds which would protect the public property from the juris- diction of the Court. On the first point their Lordships are unable to discover any room for doubt The law, as it stood in the year 1839, is accurately stated in the judgment of Tindal, C.J., in the case of Gibson v. The East India Company (5 Bingham N. C. 273). After referring to various legislative enactments, he observes that from .these — " it is manifest that the East India Company have been invested with powers and privileges of a two-fold nature, perfectly distinct from each other : namely, powers to carry on trade as merchants, and powers (subject only to the prerogative of the Crown, to be exercised by the Board of Commissioners for the affairs of India) to acquire and retain and govern territory, to raise and maintain armed forces by sea and land, and to make peace or war with the native Powers of India." That acts done in the execution of these sovereign powers were not subject to the control of the municipal courts, either of India or Great Britain, was sufficiently established by the cases of The Nabob of Arcot v. The Hast India Company (2 Ves. jun. 56), in Chancery, in 1793 ; and The East India Company v. Syed Ally, before the Privy Council in 1827. The subsequent Statute, 3rd and 4th Will. IV., c. 85., in no degree diminishes the authority of the EaSt India Company, to exercise (on behalf of the Crown of Great Britain and subject to the control thereby provided) these delegated powers of Sovereignty. The next question is, what is the real character of the act done in sect, in.] Secretary of State v. Kamachee. 113 this case? Was it a seizure by arbitrary power on behalf of the Crown of Great Britain, of the dominions and property of a neighbouring State, an act not affecting to justify itself on grounds of municipal law 1 Or was it, in whole or in part, a possession of the property of the late Rajah of Tanjore, taken by the Crown under colour of legal title, in trust for those who, by law, might be entitled to it on the death of the last possessor ? If it were the latter, the defence set up, of course, has no foundation. It is extremely difficult to discover in these papers any ground of legal right on the part of the East India Company, or of the Crown of Great Britain, to the possession of this Raj or of any part of the property of the Rajah on his death ; and indeed, the seizure was denounced by the Attorney-General (who appeared as counsel for the respondent, and not in his official character) as a most violent and unjustifiable measure. The Rajah was an independent Sovereign; though of territories undoubtedly small, and bound to a powerful neighbour by treaties which left him, practically, little power of free action. But he did not hold his territory, such as it was, as a fief of the British Crown, or of the East India Company ; nor does there appear to have been any pretence for claiming it, on the death of the Rajah without a son, by any legal title; either as an escheat or as bona vacantia. It would seem therefore, that the possession could hardly have been taken upon any such grounds. Accordingly, the defendants, in their answer, allege that on the death of the late Rajah, " it was determined, as an act of State, by the defendants and the British Government,'' that the Raj and dignity of Rajah of Tanjore was extinct, and that the State of Tanjore had thereupon lapsed to the defendants in trust for Her Majesty. And it was thereupon also determined by the defendants, as an act of State and Government, that the whole dominions and sovereignty of the State of Tanjore, together with the property belonging thereto, should be assumed by the defendants in trust for Her Majesty the Queen, and should become part of the British territories and dominions in India. They then allege that the whole of the property which they have seized has been seized by virtue of their sovereign rights on behalf of Her Majesty ; and insist that the Court has no jurisdiction to inquire into the circumstances of the seizure or its justice, with respect either to the whole or any part of the seizure. The facts, as they appear in the evidence, are these : — In November, 1855, the Rajah died. The government of Madras, within which Presidency Tanjore is situated, communicated the fact of his death to the Governor-General of India. And that fact, with the views of the government of Madras, and of the Governor-General in Council, as to the steps which ought to be taken upon the Rajah's death in regard k. 8 114 Select Cases on the Law of Torts. [paet i. to his dominion and property, was communicated to the Court of Directors, in England. The letters in which these views were com- municated are not found amongst the papers before us. But it appears, from the answer of the Court of Directors dated the 16th of April, 1856, that these governments were of opinion that the dignity of Rajah of Tanjore was extinct ; and that they had taken possession (or were about to take possession) of the dominions and property of the Hajah, and intended to deal with them in such manner as appeared to them to be just. For the answer of the East India Company's Directors is to the following effect. After adverting to a suggestion which had been made, to recognize one of the daughters of the deceased Rajah as his successor, they say : — " 3. By no law or usage, however, has the daughter of a Hindoo Rajah any right of succession to the Raj ; and it is entirely out of the question that we should create such a right for the sole purpose of perpetuating a titular Principality, at a great cost to the public revenue. 4. We agree in the unanimous opinion of your government, and the government of Madras, that the dignity of Rajah of Tanjore is extinct. 5. It only remains to express our cordial approbation of the intentions you express of treating the widow, daughters, and dependants of the late Rajah with kindness and liberality.... 6. The Resident was very properly directed to continue all existing allowances until he could report fully on them to Govern- ment ; but to inform the recipients that Government were not to be considered as pledged to their continuance." It seems obvious from this letter that the East India Company intended to take possession of the dominions and property of the Rajah, as absolute lords and owners ; and to treat any claims of his widows and relations and dependants, not as rights to be dealt with upon legal principles, but as appeals to the consideration and liberality of the Company. Even if there had been any doubt upon the original intention of the Government, it has clearly ratified and adopted the acts of its agent ; which, according to the principle of the decision in Buron v. Dentnan 1 , is equivalent to a previous authority. * * * * * * * The result, in their Lordships' opinion, is, that the property now claimed by the respondent has been seized by the British Government, acting as a sovereign power, through its delegate the East India Company ; and that the act so done, with its consequences, is an act of State, over which the Supreme Court of Madras has no jurisdiction. Of the propriety or justice of that act, neither the Court below nor the Judicial Committee have the means of forming — or the right of expressing if they had formed— any opinion. It may have been 1 Infra, p. 115. sect, in.] Secretary of State v. Kamachee. 115 just or unjust, politic or impolitic, beneficial or injurious (taken as a ■whole) to those whose interests are affected. These are considerations into which their Lordships cannot enter. It is sufficient to say that, even if a wrong has been done, it is a wrong for which no municipal court of justice can afford a remedy. [Even though this authority were not given until after the damage had been done.] BURON v. DENMAN. Court of Exchequer. 1848. 2 Ex. 167. [Captain the Hon. Joseph Denman, of H.M.S. Wanderer, was in 1840 the senior officer in charge of a part of the "West coast of Africa, with instructions to suppress the slave-trade at sea there. He was re- quested by the Governor of Sierra Leone to obtain the liberation of two British subjects detained as slaves at the Gallinas by the son of the king of that country; and in effecting that object to use force, if necessary. He accordingly sailed to the Gallinas with three armed vessels, landed at Dombocorro, and took military possession of a barracoon belonging to the plaintiff; who was a Spaniard, carrying on the slave-trade at the Gallinas. He then communicated with the king of the country; and the two British subjects having been released, he concluded a treaty with him for the abolition of the slave-trade in that country. In execution of this treaty, the defendant fired the barracoons of the plaintiff, and carried away three hundred of his slaves (worth about £10 each), with many others, to Sierra Leone, where they were liberated. Some of the plaintiff's goods, used in the slave traffic, were claimed by Siacca, the local king, as forfeited to him; other goods were destroyed. These proceedings having been communicated to the Secretaries of State for the foreign and colonial departments (Lord Palmerston and Lord John Russell), they sent to the Admiralty official letters directing that Captain Denman should be informed that he had acted rightly, in the "spirited and able conduct" by which he had destroyed eight slave factories and liberated 841 slaves; and that similar operations ought to be executed against slave-trade establishments on all the other parts of the West African coast not belonging to any civilized power. The Admiralty made him 116 Select Gases on the Law of Torts. [part i. a grant of £4000 as a reward for his conduct — " the most conclusive ratification in English naval history." But in September, 1841, a change of ministry took place, and Lord Palmerston's place as Foreign Secretary was taken by Lord Aberdeen. The Denman papers were then laid before the Queen's Advocate, who gave an opinion to the effect that he " could not take upon himself to advise that all the proceedings, described as having taken place at Gallinas, New Cestos, and Sea Bar, are strictly justi- fiable ; or that the instructions of her Majesty's naval officers, as referred to in these papers, are such as can with perfect legality be carried into execution. The Queen's Advocate is of opinion, that the blockading rivers, landing, and destroying buildings, and carrying off persons held in slavery, in countries with which Great Britain is not at war, cannot be considered as sanctioned by the law of nations or by the provisions of any existing treaties ; and that, however desirable it may be to put an end to the slave-trade, a good, however eminent, should not be obtained otherwise than by lawful means." In 1842, Buron brought this action of trespass, claiming £100,000 for the loss of his slaves and other effects. He could not sue in England for the destruction of the barracoons themselves, that being a trespass to real estate ; see British South African Co. v. Companhia de Mocambique, L.R. [1893] A. C. 602. Captain Denman pleaded that he had acted "as the servant of Queen Victoria and by her command"; and also that he had acted under the authority of King Siacca. The defence of " Act of State '* was thus set up from two points of view ; the African authorization being antecedent to some of the torts, the British being subsequent to them all. A ratification could only confirm what the defendant had done when acting, not from private personal feelings, but, on behalf of the Crown ; but the Governor of Sierra Leone's orders to make the expedition afforded evidence that Captain Denman had re- garded himself throughout as acting for the Crown. The case did not come to trial until 1848. It was tried at .bar, before all the four Barons of. the Court.] The Attorney-General. .. .The approval by the Secretaries of State is equivalent to the Queen's command. It is not necessary that the command should be antecedent to the act done. In the case of The Holla 1 , where an American ship and cargo were proceeded against for a breach of the blockade of Monte Video imposed by the British commander Sir Home Popham without any communication with his. government, Lord Stowell, in delivering judgment, says : " However irregularly he may have acted towards his own government, the subsequent conduct of Government, in adopting that enterprise, by 1 6 Bob. 364. sect. in. J Bur on v. Demnan. 117 directing a further extension of that conquest, will have the effect of legitimating the acts done by him, so far at least as the subjects of other countries are concerned." In Best on Presumptions of Law and Fact 1 , it is stated to be "a fixed principle, that every ratification has relation back to the time of the act done — Omnis ratihabitio retrotrahitur et mandate sequiparatur.''... The effect of this ratification by the Crown was to render the defendant's act an act of state, in respect of which no action can be maintained : Elphmstone v. Bed- reechund*. M. D. Hill, for defendant. Even if there was a ratification, it will not support the plea "of the Queen's command. The principle on which the " ratihabitio " has proceeded is, that it is part of the law of principal and agent, and it has never been used for the protection or justification of the agent, but where the act done is founded on a right existing in the principal, and not in the agent except as authorised by the principal. The fiction which carries back the ratification, and gives it the force and operation of a prior command, is, like other legal fictions, in favour of justice. The question between the parties is not whether the agent has a right to do the act, but whether it ought to have been done at all ; and, therefore, if the principal had a right to do it, the agent is empowered to vouch his subsequent ratification. That principle is now attempted to be used in a manner which neither reason, justice, nor analogy drawn from authority can justify. It is not for the purpose of shewing that the act was justifiable, but for the purpose of protecting the party com- mitting it against examination as to whether it was right or wrong. It is said that this is an act of state, for which the Crown is alone responsible, and not a matter to be tried by the municipal law. But there has been no publication of the act in the Gazette, by which the Queen of Spain could be informed of the proper mode of seeking redress for this injury to one of her subjects.... Parke, B. (in summing up to the jury).... The principal question is, whether the conduct of the defendant can be justified as an act of state, done by authority of the Crown. It is not contended that there was any previous authority.... The defendant's instructions only ex- tended to the stopping of ships on the high seas. Therefore the justification depends upon the subsequent ratification.... My learned brethren are decidedly of opinion that the ratification of the Crown, communicated as it has been in the present case, is equivalent to a prior command. I do not say that I dissent; but I express my concurrence in their opinion with some doubt, because, on reflection, there appears to me a considerable distinction between the present case and the ordinary case of ratification by subsequent authority i P. 28. 2 1 Knapp, 316. 118 Select Cases on the Law of Torts. [part i. between private individuals. If an individual ratifies an act done on his behalf, the nature of the act remains unchanged, it is still a mere trespass, and the party injured has his option to sue either; if the Crown ratifies an act, the character of the act becomes altered, • for the ratification does not give the party injured the double option of bringing his action against the agent who committed the trespass . or the principal who ratified it, but a remedy against the Crown only (such as it is), and actually exempts from all liability the person who commits the trespass. Whether the remedy against the Crown is to be pursued by petition of right, or whether the injury is an act of state without remedy (except by appeal to the justice of the state which inflicts it, or by application of the individual suffering to the government of his country, to insist upon compensation from the government of this) — in either view, the wrong is no longer actionable. The direction of the Court is, that if the Crown, with knowledge of what has been done, ratified the defendant's act by the Secretaries of State or the Lords of the Admiralty, this action cannot be maintained. Although the ratification was not known before this action was commenced, that makes no difference. A previous command, if given verbally, would be unknown. It is argued, on the part of the plaintiff, that the Crown can only speak by an authentic instrument under the Great Seal But we are clearly of opinion, that, as the original act would have been an act of the Crown, if communicated by a written or parol direction from the Board of Admiralty, so this ratification, communicated in the way it has been, is equally good. [The jury fpund that the Crown had ratified the defendant's conduct, and with a full knowledge of what he had done. The defendant withdrew from the jury the question as to his having acted under King Siacca's authority; preferring "to put the case on the higher ground " of a British approbation.] [Editor's Note. The Crown's power of ratification extends even to acts that were done in defiance of its actual prohibition (9 Bombay H. C. 314). But the student should carefully note that the defence of "Act of State," can never be raised, even by fully authorised agents of the Crown, for any wrongs committed against a person who was, at the time of their commission, a British subject. This rule constitutes one of the peculiar excellences of English' law, as compared with the laws of Continental Europe. But the rights of a British subject are not possessed by subjects of the native Protected States in India. And the Supreme Court of Natal has held that during the Boer War, in 1900, even after the annexation of the Orange Free State, the defence of "Act of State " could be set up for torts committed against any of its ex-burghers who were still acting as belligerents, or were prisoners of war even though on parole.] sect, in.] Scott v. Stcmsfield. 119 (B) Judicial Acts. [No action lies against a judge for any act done in his judicial capacity, even though done maliciously.] SCOTT v. STANSFIELD. Court op Exchequer. 1868. L.R. 3 Ex. 220. Declaration, for that the plaintiff carried on the business of an accountant and scrivener, and the defendant falsely and maliciously, and without reasonable or justifiable cause, and not on any justifiable occasion, spoke and published of the plaintiff, of and concerning him in relation to his said business and the carrying on and conducting thereof, the words following, that is to say : " You," meaning the plaintiff, " are a harpy, preying on the vitals of the poor." Plea : that before and at the time when the alleged grievance was committed, the defendant was the judge of a certain court of record, being the County Court of Yorkshire, holden at Huddersfield, and at the time when he did what was complained of, the defendant was sitting in the said court, and acting in his capacity as such judge as aforesaid, and was as such judge hearing and trying a cause in which the now plaintiff was defendant, the hearing and determination of which was within the jurisdiction of the said court ; and during the said trial the now defendant, in his capacity as such judge, did, as such judge sitting as aforesaid, speak and publish the said words of which the plaintiff complains, which is the supposed grievance above complained of. Replication to the said plea : that the said words so spoken and published by the defendant as aforesaid, were spoken falsely and maliciously, and without any reasonable, probable or justifiable cause, and without any foundation whatever, and not bona fide in discharge of his duty as judge as aforesaid, and were wholly uncalled for, immaterial, irrelevant, and impertinent, in reference to, or in respect of, the matters before him, and were wholly unwarranted on the said occasion, of all which premises the defendant had notice before and at the time of the committing of the said grievance, and then well knew. Demurrer and joinder. Quain, Q.C. (Kemplay with him), in support of the demurrer. The plea and replication taken together raise the question whether the defendant is liable to an action in respect of the words mentioned in the declaration, such words having been spoken by him in his 120 Select Cases on the Law of Torts. [pakt i. capacity of judge, but spoken falsely, maliciously and irrelevantly. There is no authority for the position that an action will lie against a judge for anything done by him while acting in the exercise of his jurisdiction. The remedy for any official misconduct on the part of the defendant is by application to the Jjord Chancellor for his removal. In the- case of Thomas v. Ghurton ' it was held, that a coroner holding an inquest is not liable to an action for words falsely and maliciously spoken by him in his address to the jury ; but Cockburn, C.J., there said 2 : " I am reluctant to decide, and will not do so until the question comes before me that if a judge abuses his judicial office by using slanderous words, maliciously and without reasonable and probable cause, he is not to be liable to an action." The present replication is probably founded upon that dictum Manisty, Q.C., contra. The decisions cited are inapplicable to the present case. For it was not alleged in any of those cases, that the judge had said, maliciously and without reasonable cause, what was altogether irrelevant to the matter before him. In Addison on Torts, 2nd ed., p. 547, the law is thus laid down: ''A judge, therefore, is not answerable for slander spoken by him in the exercise of his judicial functions in reference to a matter before him ; but, if he goes out of his way to make slanderous attacks on the character of private persons in respect of matters not before him, and into which he has no juris- diction to inquire, he will be responsible, like any other individual, for the consequences." The cases cited in support of that proposition are Lewis v. Levi 3 , and MacGregor v. Thwaites* ; but, it must be admitted, they do not go far enough to support the plaintiff's contention. It is, however, clear, that the fact of a judge's having jurisdiction to try a particular case will not justify his going out of his way, and, with reference to a subject wholly irrelevant, making falsely and maliciously slanderous statements affecting private character. It is then just as if he were not acting in his judicial character at all. He cannot abuse his office for the purpose of doing with impunity, under colour of it, that which has no connection with it and which in a private individual would be actionable. In the case of Houlden v. Smith 6 , it was held, that a judge of a county court is answerable for an act done by his command, when he has no jurisdiction, and is not misinformed as to the facts on which jurisdiction depends. Kelly, C.B. I am of opinion that our judgment must be for the defendant. The question raised upon this record is whether an action is maintainable against the judge of a county court, which is a court of record, for words spoken by him in his judicial character and in the exercise of his functions as judge in the court over which he presides, 1 2 B. & S. 475. 2 2 B. & S. at p. 479. * 27 L. J. (Q.B.) 282. * 3 B. & C. 24. 6 14 Q. B. 841. sect, in.] Scott v. Stamjkld. 121 where such words would as against an ordinary individual constitute a cause of action, and where they are alleged to have been spoken maliciously and without probable cause, and to have been irrelevant to the matter before him. The question arises, perhaps, for the first time with reference to a county court judge, but a series of decisions uniformly to the same effect, extending from the time of Lord Coke to the present time, establish the general proposition that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice. This doctrine has been applied not only to the superior courts, but to the court of a coroner and to a court martial, which is not a court of record. It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law inde- pendently and freely, without favour and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with indepen- dence and without fear of consequences. How could a judge so exercise his office if he were in daily and hourly fear of an action being brought against him, and of having the question submitted to a jury whether a matter on which he had commented judicially was or was not relevant to the case before him ? Again, if a question arose as to the bona fides of the judge it would have, if the analogy of similar cases is to be followed, to be submitted to the jury. Thus if we were to hold that an action is maintainable against a judge for words spoken by him in his judicial capacity, under such circumstances as those appearing on these pleadings, we should expose him to constant danger of having questions such as that of good faith or relevancy raised against him before a jury, and of having the mode in which he might administer justice in his court submitted to their determination. It is impossible to overestimate the inconvenience of such a result. For these reasons I am most strongly of opinion that no such action as this can, under any circumstances, be maintainable. Judgment for defendant. [Editob's Note. The rule here laid down was followed in the case of Anderson v. Gorrie (L. B. [1895], 1 Q. B. 668), an action for false imprisonment, in which the jury found that the defendant — a judge of the Supreme Court of Trinidad — had "purposely, and with malice, overstrained his judicial powers to the prejudice of the plaintiff." There is a well-known case (30 Howell's State Trials 749) in which General Picton, governor of Trinidad, was indicted for putting a woman to the torture. But had he done this in the exercise — -not of an executive but — & judicial office, he would have been entitled to an acquittal ; (see per Lord Ellenborough, at p. 869).] 122 Select Cases on the Law of Torts. [paet i. (C) Executive Officers. [The orders of a public authority, either civil or military, if they are apparently valid (even though not really so), afford a good defence for any tort committed by its officer in direct obedience to them.] HILL v. BATEMAN AND ANOTHER. Nisi Prius. 17—. 2 Strange 710. The defendant Bateman, being a justice of peace, had convicted the plaintiff for destroying game. And though (as it was proved) the plaintiff had effects of his own which might have been distrained, which were sufficient to answer the penalty he had incurred, yet the defendant sent him immediately to Bridewell, without endeavouring to levy the penalty upon his goods. An action of trespass and false imprisonment being brought against Bateman for this commitment, and heard at Westminster, Raymond, C.J., was of opinion that the action well lay. The other defendant was the constable who had executed this warrant of commitment. And as to him, it was agreed that the warrant was a sufficient justification, it being in a matter within the jurisdiction of the justice of peace. But if a justice of peace makes a warrant in a case which is plainly out of his jurisdiction, such warrant is no justification to a constable. See 24 Geo. 2. c. 44 '. 1 Vide Shergold v. Holloway 2 Str. 1002, 4 Com. Dig. Lit. Imprisonment (H. 9), p. 375, 5 Com. Dig. Lit. Pleader (3 M. 22), (3 M. 23), p. 796. sect, in.] Dews v. Riley. 123 [E.g., the orders of a Court of Justice.] DEWS v. RILEY. Court op Common Pleas. 185,1. 11 C.B. 434. This was an action of trespass and false imprisonment against the clerk of the Whitechapel County Court of Middlesex. The defendant pleaded " not guilty, by statute." The cause was tried before Maule, J., at the sittings for Middlesex. The facts which appeared in evidence were as follows. On the 23rd of Ju,ly, 1850, one Davis recovered a judgment in the Whitechapel County Court of Middlesex, against the now plaintiff, for £3. 17 s. debt, and 14s. 4rf. costs; which he was ordered to pay by monthly instalments of 5s., the first instalment to be paid on the 23rd of August. The now plaintiff failing to make these payments, a judgment summons was issued against him under 9 and 10 Vict. c. 95 s. 98, requiring him to appear in Court on the 10th of October. The now plaintiff having failed to appear on the appointed day, the judge made an order, which was proved from the minute-book of the court kept by the clerk. This book, after stating the particulars, the amount claimed, and the judgment, contained (under the word "Order") the following entry: — "On the 17th' of October instant, or thirty days' imprisonment for not attending.'' Payment not having been made in obedience to this last-mentioned order, the now plaintiff . was arrested on the 5th of November, by one of the bailiffs of the court, upon a warrant under the seal of the county court, and signed by the defendant as clerk of the court. This warrant recited the judgment and the judgment summons, and then proceeded to state that " It was ordered by the judge of the said court, that the said defendant (the now plaintiff) should pay the said debt and costs, together with the costs of the above-recited summons and the hearing thereon (amounting together to the sum of £5. 2s. 8d.), on the 17th of October, then instant ; or be committed to Her Majesty's common gaol for debtors for the county of Middlesex, in Whitecross Street, for the term of thirty days," &c. It concluded, in the usual form, with a direction to the gaoler to keep him " for the term of thirty days from the arrest under this warrant, or until he shall be sooner dis- charged by due course of law." 1 [Editor's Note. The day really ordered by the judge had been, not the 17th, but the 10th, the very day of making the order. The error of date is a fatal one; inasmuch as the judge had power to make a peremptory order for immediate commitment only ; and not for a postponed one, since some matter of excuse might arise before the future day when a postponed order would take effect.] 124 Select Gases on the Law of Torts. [part i. The judge of the county court was called as a witness on behalf of the defendant ; and he proved, from a private memorandum, that he had intended the order to be for a commitment forthwith [i.e. on Oct. 10th], with an understanding that the warrant should not issue for a week. For the defendant, it was submitted, that, being a mere ministerial officer, and bound to carry into effect the orders of the judge, he was not liable in trespass. On the other hand, it was insisted that the defendant could not protect himself by an order which the judge had no power to make. . . . Maule, J., doubted whether there was sufficient evidence to fix the defendant; but he directed the jury to assess the damages for the plaintiff, reserving to the defendant leave to move to enter a nonsuit, if the court should be of opinion that the defendant was not liable, and that the defence was admissible under Not Guilty. ******* Humfrey shewed cause. The cases of Ex parte Kinning' 1 , Kinning v. Buchanan", and Abley v. Dale 3 , shew that the warrant in question was illegal and bad. The memorandum of the judge shewed that he meant to make a legal order, and that the illegality was the act of the defendant, whose duty it was, under the 111th section 4 of the statute, to enter the proceedings of the court The defendant has availed himself of the machinery of his office to issue a bad warrant which is not justified by any previous order of the court. Bryant v. Clutton* is also an authority in favour of the maintenance^ of this action. [Jbrvis, C.J. Why should not the clerk, who is bound to issue the warrant, be in the same situation as a sheriff 6 ?] In issuing this bad warrant, the defendant was not obeying the direction of the judge. ******* Jebvis, C. J., delivered the judgment of the court : — Upon the trial of this cause, my brother Maule doubted whether there was sufficient evidence to fix the defendant. But he directed the jury to assess the damages for the plaintiff; and gave the defendant leave to enter a 1 5 C. B. 507. 2 8 C. B. 271. 3 10 C. B. 62. 4 Which enacts "that the clerk of every court holden under this act, shall cause a note of all... proceedings of the court to be fairly entered, from time to time, in a book belonging to the court which shall be kept at the office of the court; and such entries in the said book... shall at all times be admitted in all courts and places whatsoever, as evidence of such entries, and of the proceeding referred to by such entry or entries, and, of the regularity of such proceeding, without any further proof." 5 1 M. & W. 408. 6 [Editor's Note. As to a sheriff's immunity see the note appended to the present case, infra, p. 125.] sect, in.] Dews v. Riley. 125 nonsuit, if upon consideration, the court should be of opinion that the defendant was not liable. The only evidence against the defendant was the warrant, sealed and signed by him as clerk of the court. The defendant produced a minute of the proceedings at the court held on the 10th of October; which, after stating the particulars, the amount claimed, and the judgment, contained under the word " order " the following entry : — "On the 17th Oct. instant, or thirty days' imprisonment for not attending." The judge of the court proved, from a private memoran- dum, that he intended the order to be for a commitment forthwith, with an understanding that it should not be enforced till after the 17th of October. By the statute 9 & 10 Vict. c. 95, s. Ill, the clerk is directed to cause a note of all orders and proceedings of the court to be fairly entered in a book, and a copy of such entry, duly authenticated, is at all times to be admitted as evidence of such entry, and of the proceedings referred to by such entry, and of the regularity thereof. We are bound, therefore, by the copy of the entry so produced, and must assume — contrary to the evidence given by the judge — that the order was that the present plaintiff should be imprisoned for thirty days, for not attending, unless he paid the debt and costs on or before the seventeenth of October. According to the decisions of this court, confirmed in this respect by the court of error, this would be a bad order. But it is correctly stated in the warrant ; and the question is, whether the clerk of the court is liable in trespass. We are of opinion that he is not. By the 102nd section of the County Courts Act, " where any order of committal shall have been made as aforesaid, the clerk of the court shall issue under the seal of the court, a warrant of commitment." It is suggested that the words "as aforesaid," by reference to the preceding sections, require that the order should be in compliance with the terms of the Act ; and that therefore this section is not obligatory upon the clerk where the order is bad and cannot be sustained. This, however, is not, in our opinion, the correct construction of the Act. It would throw upon the clerk the duty of reviewing the decision of the judge — his superior officer. The clerk is a mere ministerial officer to carry into effect the order of the judge; and cannot be liable in trespass for the mere performance of a duty cast upon him by the express language of the Act of Parliament. Plaintiff nonsuited. [Editor's Note. In Tarlton v. Fisher (2 Douglas 671), Ashurst, J., states the rule thus: — "A sheriff is bound to execute process issuing out of a court of competent jurisdiction ; and though there be no cause of action, or the process be 126 "Select Oases on the Law of Torts. [part i. erroneous, he is not responsible.. ..It would be extremely hard indeed upon a sheriff and hiB officers if they were bound to inquire into the truth of a defendant's exemption and determine upon it at their peril." The principle was recognised , three hundred years ago, in the Countess of Rutland's Case (6 Coke 52 6) where an information was brought against a sheriff for arresting that lady on a capias ad satisfaciendum (under a judgment recovered against her in an action of debt), in disregard of her privilege as the wife of a peer of the realm. But it was held by the whole Court of Star-chamber that, though this capias was quite irregular, yet as it had nevertheless been issued by a Court (the Court of Common Pleas), "the sheriff, or (by his warranty) his officer, might execute it without any offence. For they ought not to dispute the authority of the court, but execute the 'writs directed to them ; and to this they are sworn. And although it appears in the capias that she was a countess (against whom, by the law, no capias in such case lies), and i<)norantia juris non excusat (especially in sheriffs and other ministers of law and justice), yet the sheriff and his officers ought not to examine the judicial act of the court but execute the writ." For, as was said in a modern case by Williams, J., "It would be wild work if an officer were entitled to scan the warrant delivered to him, for the purpose of ascertaining whether, under the circumstances of the case, it was regular or not" (3 A. & E. 449). Hence, provided the suit be of a class which is within the jurisdiction of the court (even though in the particular case jurisdiction be wanting), an officer who executes a process, fair upon its face, is protected by the law. But it is otherwise if the process itself is not fair and regular upon its face, or if its recitals or commands shew a want of jurisdiction in the court issuing it ; for then the officer will be legally responsible for any tort he may commit by executing it.] sect, in.] Attorney-General v. Metropolitan By. Co. 127 (D) Special Legal Authorization. [iVo action lies for the damage necessarily produced by acts the doing of which has been specially authorized by Statute.] ATTORNEY-GENERAL AND HARE v. METROPOLITAN RAILWAY CO. Court of Appeal. L.R. [1894] 1 Q.B. 384. [This was an action upon an award of compensation to the plaintiff Hare for damage done to his dwelling-house by the defendants' railway. At the trial, Wright, J., had held that the plaintiff was entitled to compensation under the Lands Clauses Consolidation Act, 1845, and the Railways Clauses Consolidation Act, 1845. The defendants appealed'. The facts sufficiently appear in the judgment.] A. L. Smith, L.J. No one can approach this case without feeling a desire to assist the plaintiff, Mr Hare; for it is admitted that his house has been injured to the amount of £450 by what the defendant company have done and are doing. The first and most important question is whether he is entitled to recover under the Lands and Railways Clauses Consolidation Acts compensation from the defendant company in respect of the injuries he has sustained. Mr Hare is lessee for a term of years of No. 3, Park Crescent, Regent's Park, and at the rear of his premises the Portland Road station upon the defendants' railway is situated. When the railway was originally constructed about the year 1 86 1, the defendants opened up upon their own lands an air-hole of some 150 feet in extent at the rear of the plaintiff's house, and in the year 1889 they uncovered a portion of their tunnel on the Park Crescent side of their station, making thereby an air space of some 1500 feet in the place of what had theretofore existed. The result of this has been to largely increase the emission of vapours from their tunnel at the back of the plaintiff's house, which has caused the injury he has sustained. These works were executed by the defendants without negligence, and were for"the purpose of giving better ventilation to their tunnel and station with a view, as they expressed it, " of ensuring additional comfort and benefit to the millions of the travelling public using their railway." The defendant company, by their special Acts, were authorized to make and maintain an underground railway, with a station in Portland Road, on the lands which they acquired. They were thereby em- powered to make and maintain their works at the locus in quo either in tunnel or in open cutting, and no fetter was imposed upon them as 128 Select Cases on the Law of Torts. [part i. to how as regards this matter their line was to be there constructed. No action could have been maintained against them for either not putting their line into tunnel or for putting it into open cutting, or part in tunnel and part in open cutting, at the place in question, for they were empowered by their special Acts to do what they thought fit as to this. The company, in my judgment, were also in like manner authorized from time to time at the place in question, as incidental to the efficient working of their line, to either open up that part which might have been originally constructed in tunnel, or to have closed up that which might have been originally constructed in open cutting, without being liable to an action for damages for so doing, unless it could be established that when so opening or closing up this part of their line they had acted negligently. The cases of Hammersmith Ry. Co. v. Brand* and London, Brighton and South Coast Ry. Co. v. Truman 2 , both in the House of Lords, decide this. It was expressly held in the House of Lords, in Hammersmith By. Co. v. Brand 1 , that if by the execution of the works authorized (no land being taken) a company have injured the lands of another, com- pensation is recoverable by the person injured under the Lands and Railways Clauses Consolidation Acts ; and it was there also held that if the injury is occasioned by reason of the user and working of the railway, it is not recoverable ; or, in other words, where land is not taken compensation can only be recovered if damage arises to the land of another from the making of the railway, and not if it arises from its user. "Wright, J., when considering this question of compensation, directed himself as follows. He said : " Ought the injury to the land to be regarded as the effect of the construction or execution of the works, or as the effect of the working or user of the railway?" This direction is good law, and the point is, Did Wright, J., accurately apply the facts of the case to this law ? Do the facts shew that the plaintiff's injury arose from the making of the railway or from its use 1 It appears to me that the answer to the following question shews how this is. If the railway ran no trains — that is, if the rail- way was not worked — would the plaintiff's house have been damaged by the building of the 1500 feet of opening? My answer is, No. If this be correct, it follows that the damage to the plaintiff must arise from the user, and not from the making of the railway. Wright, J., however, held as follows : " With much doubt I have come to the con- clusion that it ought not to be regarded merely as the effect of the working of the railway. It must be taken for settled law (speaking always of a person no part of whose land is taken) that no compensa- tion can be got in respect of effects of the working of the railway which are ordinary, and which affect indifferently all adjoining lands, 1 Law Bep. 4 H. L. 171. 2 11 App. Oas. 45. sect, in.] Attorney-General v. Metropolitan Ry. Co. 129 even though the complainant's land may happen, from its situation or otherwise, to be affected in a greater degree than others. But it seems to me that there may be works which, although not injurious in them- selves unless the railway is worked, are so specially and necessarily injurious to particular land if the railway is worked at all, whether much or little, that the construction of them under powers which enable them to be used in conjunction with the working of the railway may of itself be regarded as injurious to the land, with the use of which it unquestionably interferes. There is here not a mere difference of amount of noise, smoke, and foul air, but a work specifically de- signed for the purpose of concentrating the vapours of an underground station, which would otherwise have diffused themselves in various directions, and of discharging the collected volume under the plaintiff's windows in such a way that the house is made materially less fit for habitation. Even if the railway were not being worked, the con- struction of such a work for such a purpose, with such powers, would diminish the value of the house.'' It is upon this question of fact that I am able to agree with "Wright, J. No evidence was given that, if the railway were not worked, any damage would be done, nor that the construction of the enlarged opening would have diminished the value of the plaintiff's house; but, on the contrary, the evidence was that the plaintiff's house was injured by being rendered less fit for habitation by reason of the increased smoke, vapour, noise, steam, and vibration which daily escaped from the larger air space, and it was for this damage that the .£4:50 was assessed. It is only the working and user of the railway which brings into existence the vapours which cause the injury. Without such working and user no vapours and, consequently, no injury would exist. The building of the larger air space inflicted no damage, and could not be complained of. It is the vapours which are complained of, not the building. I would point out that, if upon the facts of this case a claim for compensation could be supported, the smoke, vapour, noise, steam, and vibration, which daily occur at the mouth of every tunnel, would, as it appears to me, give ground for such a claim at the instance of all persons whose houses were injured thereby. This of itself shews the importance of this present, and, I think, novel, claim put forward by the plaintiff. Mr Robson, for him, when faced with this difficulty, boldly stated that they did ; but Brand's Case 1 , in my judgment, is an express authority that they do not. Take the case of the air space being built by A, and the fumes produced by B, and take it that the law was that A was only to be i L. E. 4 H. L. 171. 9 130 Select Gases on the Law of Torts. [part i. liable for damage he might create by erecting his building. Can it be said, because he subsequently allowed B to pass his fumes through the air space, that this was a damage caused by the erection of the building? I think not. The real truth is, that the sole injury is caused by the noxious fumes which come from the user of the line. It is true that they are let out through the building, but the building does not cause them. The damage, in my judgment, is occasioned by reason of the user of the line, and, as above pointed out, for this there is no claim for compensation. Davey, L.J....It has been decided by the House of Lords in Ham- mersmith Ry. Co, v. Brand 1 that there is no right of action for damage sustained by the working of a railway, without negligence, under statutory powers ; and also that the Railway Acts give no right to compensation for any injury so sustained.... It is argued that the object and effect of the work in question has been to collect and concentrate upon the plaintiff's house the smoke of the locomotives, and that the injury is not the necessary consequence of the working or use of the work, but arises from its construction. And the learned judge has decided in the plaintiff's favour on this point. In my opinion, this reasoning is fallacious. The emission of smoke is the necessary consequence of the use of locomotives. The injury suffered by the plaintiff and his family is ejusdem generis with that which any other person (say) passing along the Marylebone Road might experience, though accruing to the plaintiff more frequently than to others ; i.e. it is a personal injury only to the plaintiff. The argument that the plaintiff's injury is caused by the work because it would not have arisen if the work had not been constructed, is answered by Lord Chelmsford's observation in Brand's Case 2 . What the company has done is to make an opening in their tunnel on their own land, or (in other words) to convert that portion of their line into an open cutting. And the company, keeping within their powers, were, it appears to me, as free to select this mode of ventilating their railway and station as the company were to select the particular site for their cattle pens in Truman's Case 3 . Applying the test suggested by Lord Chelmsford, and adopted by Mellish, L.J., in Hopkins v. Great Northern Ry. Co.*, it is plain that the construction of the work would not have injured the plaintiff if the railway were not used; and it is the user of the railway with this opening in the tunnel, and not the construction of the opening and walls, of which the plaintiff complains. On this point, therefore, I am of opinion that the case is covered by Brand's Case', and that the appeal is successful. Appeal allowed. [See also Mersey Docks Trustees v. Gibbs, supra, p. 65.] 1 L. B. 4 H. L. 171. 2 L. E. 4 H. L. at p. 104. 8 11 App. Cas. 45. * 2 Q. B. D. 224. sect. 111.J Madras Ry. Co. v. Zemindar of Qarvatmagarwm. 131 [Editor's Note. Since every sovereign legislature has full authority to make and to alter the law, it can confer on any person any powers it may see fit to give him, even a power to interfere with other people's rights. If it do so, his exercise of this power cannot be an unlawful act. Hence, should he by exercising it — without any unreasonable carelessness — cause damage to other persons, they will liave no legal remedy against him. In modern times it often happens that a municipal or a commercial undertaking is so extensive in scale as to require the passing of a private Act of Parliament for its effectual organisation. Hence the doctrine now under discussion has of late come into very frequent application. But more than a century ago it was already obvious that, if this doctrine had not been established, " every Turnpike Act, Paving Act, or Canal Act, would have given rise to an infinity of law-suits " ; (see 4 T. E. 794).] [Or specially authorized by customary law.] THE MADRAS RAILWAY COMPANY v. THE ZEMINDAR OF CARVATENAGARUM. Privy Council. 1874. L. R. 1 Ind. App. 364. ******* The Right Hon. Sir Robert P. Collier : — The Madras Railway- Company claimed in this suit damages against the defendant, the Zemindar of Carvatenagarum, for injuries occasioned to their railway and works by the bursting of two tanks upon his land.... The tanks were ancient tanks (the date of their origin not appearing). They were constructed in the usual manner ; the banks were properly attended to and kept in repair ; sluices and outlets for the. water were provided, of the kind usually employed both in private and in Govern- ment tanks and usually found sufficient. They, indeed, had proved sufficient to prevent any overflow or bursting, of the tanks in question, for twenty years. But an improved description of sluice, of recent introduction, would have been still more efficacious. Some days before the accident there had been an unusual and almost unprecedented fall of rain; described by the deputy-inspector of the railway as the heaviest'he had ever seen during his residence of thirteen years in the locality, and by witnesses for the defendant as exceeding any fall of rain for twenty years. This extraordinary flood (which caused the river to overflow),... proved more than the sluices could carry off. The banks of the tanks were overflowed, and finally carried away.... The case mainly relied upon by the plaintiffs is Fletcher v. Rylands (L R 3 H. L. 330 ; infra, Pt. n. s. iv.)....But its principle that a man, in Exercising a right which belongs to him, may be liable, without negli- gence for injury done to another person, has been held inapplicable to 132 Select Gases on the Law of Torts. [paet i. rights conferred by statute. This distinction was acted upon in Vaughan v. Toff Vale Railway Company (5 H. & N. 679), where it was held by the Exchequer Chamber that a railway company were not responsible for damage from a fire kindled by sparks from their loco- motive engine, in the absence of negligence; because they were authorized by statute to use locomotives. ...These tanks are ancient, and form part of what may be termed a national system of irrigation recognized — by Hindu and Mohammedan law, by regulations of the East India Company, and by experience older than history — as essential to the welfare, and indeed to the existence, of a large portion of the population of India. The public duty of main- taining existing tanks, and of constructing new ones in many places, was originally undertaken by the Government of India ; and upon the settlement of the country has, in many instances, devolved on zemindars (of whom the defendant is one). The zemindars have no power to do away with these tanks, in the maintenance of which large numbers of people are interested ; but are charged under Indian law, by reason of their tenure, with the duty of preserving and repairing them. Prom this, it becomes apparent that the defendant in this case is in a very different position from the defendants in Fletcher v. Rylands. In that case the defendants, for their own purposes, brought upon their land, and there accumulated, a large quantity of water ; by what is termed by Lord Cairns " a non-natural use " of their land. They were under no obligation, public or private, to make or to main- tain the reservoir ; no rights in it had been acquired by other persons ; and they could have removed it if they had thought fit. The rights and liabilities of the defendant appear to their Lordships much more analogous' to those of persons, or corporations, on whom statutory powers have been conferred and statutory duties imposed. The duty of the defendant to maintain the tanks appears to their Lordships a duty of very much the same description as that of the railway com- pany to maintain its railway. They are of opinion that, if the banks of his tank are washed away by an extraordinary flood, without negligence on his part, he is no more liable for damage occasioned thereby than the plaintiffs would be for damage to a passenger on their line (or to the lands of an adjoining proprietor) occasioned by the banks of their railway being washed away in similar circumstances. sect, in.] Managers of Metropolitan Asylum District y. Hill. 133 [But, in construing the provisions of a Statute, the presumption is against its creating any such power to interfere with ordinary rights ; especially if the interference would amount to a Nuisance.] MANAGERS OF THE METROPOLITAN ASYLUM DISTRICT v. HILL AND OTHERS. House op Lords. 1881. L.R. 6 App. Ca. 193. The appellants were persons who had been incorporated by the Metropolitan Poor Act, 1867 (30 Vict. c. 6), for the purpose of pro- viding hospitals for the reception of the sick poor of the metropolis. Sir Rowland Hill (whose executors were the first of the respondents), Mr Lund, and Mr Fripp, resided at Hainpstead and had property- there. The action, the subject of the present appeal, was brought by them against the appellants, alleging that the appellants had erected a certain hospital near their properties, for the reception of persons suffering from small-pox and other infectious and contagious disorders, which was a nuisance, and had carried on the said hospital so as to be a nuisance. The appellants traversed these allegations. The cause came on for trial before Mr Baron Pollock and a special jury on the ISth of November, 1878. The learned Judge left certain questions to the jury which, with their answers, were in the following form : " (1) Was the hospital a nuisance occasioning damage to the plaintiffs, or either and which of them, per se ; or (2) was it a nuisance to them by reason of the patients coming to or going from the hospital ? — Ans. (to the two questions). The hospital was a nuisance occasioning damage to the plaintiffs, and each of them, per se ; and also by reason of the patients coming to or going from the hospital. (3) Assuming that the defendants were, by law, entitled to erect and carry on an hospital, did they do so with all proper and reasonable care and skill with reference to the plaintiffs' rights? — Ans. No. (4) Assuming them by law entitled to erect and carry on this hospital, did they do so with all proper and reasonable care and skill with reference to the plaintiffs' rights 1 — Ans. No. (5) Did the defendants use proper care and skill with reference to the ambulances 1 — Ans. The ambulances ought to have been disinfected before leaving the hospital." As to everything done in the hospital itself the jurors gave great praise to everybody concerned. The verdict was on these answers ordered to be entered for the plaintiffs ; and on further consideration judgment was entered for them. ******* Sir J. Holker, Q.G. and Mr Willis, Q.C. for the appellants. ... What the appellants have done was done under statutory authority, and 134 Select Cases on the Law of Torts. [part i. therefore they are, in law, completely protected from liability. They were constituted a public body by virtue of a statute — they had duties specially assigned to them — those duties were of a public nature — the appellants were required to perform them, being thereto commanded by the Local Government Board. They had obeyed the orders of that Board, and as everything that had been done had been so done under statutory authority, any private individuals who thereby suffered in- convenience must bear it, for such was the intention of the Legislature, which, in passing the statutes relating to this matter, must be assumed to have contemplated the possibility of the private inconvenience, and •to have determined that that inconvenience must be submitted to, in consideration of the great public benefit that was to result from it. The case of Rex v. Pease 1 laid down that doctrine, which had received its complete and authoritative confirmation in The Hammersmith Railway Company v. Brand". ******* Lord Blackburn. ...I think that the case of The Hammersmith Railway v. Brand 2 , in your Lordships' House, settles, beyond con- troversy, that where the Legislature directs that a thing shall at all events be done, the doing of which, if not authorized by the Legis- lature, would entitle any one to an action, the right of action is taken away. It is enough to say that such was the unanimous decision of this House ; but the reason briefly given by Lord Cairns 3 , seems indisputable. "It is a reductio ad absurdum" to suppose it left in the power of the person who had the cause of complaint, to obtain an injunction, and so prevent the doing of that which the Legislature intended to be done at all events. The Legislature has very often interfered with the rights of private persons. But in modern times it has generally given compensation to those injured ; and if no com- pensation is given it affords a reason, though not a conclusive one, for thinking that the intention of the Legislature was, not that the thing should be done at all events, but only that it should be done, if it could be done, without injury to others. What was the intention of the Legislature in any particular Act is a question of the con- struction of the Act. Before considering the terms of the Metropolitan Poor Act, 1867, it may be as well to consider what was the state of the law before it was passed. The successive Poor Law Acts had given powers for the relief of the poor chargeable, and power to raise money for those purposes ; and a series of enactments had given powers to purchase sites for workhouses, and to lodge and maintain the chargeable poor in those workhouses, and to raise money for that purpose. Those who had the management of such workhouses had thus the charge of a 1 4 B. & Ad. 30. - L. E. 4 H. L. 171. * L. B. 4 H. L. at p. 215. sect, in.] Managers of Metropolitan Asylum District v.Hill 135 number of persons assembled together under circumstances that made it very likely that there should be sickness, and often contagious sickness, among them. I can, however, find no words in any of the Acts prior to 1844 alluding to that likelihood. There are a few words in the Poor Law Amendment Act, 1844, in the preamble to sect. 4, that shew that the attention of those who framed that Act had been called to the likelihood of infectious disorders being communicated to the inmates of a workhouse ; but there was no provision before the passing of the Metropolitan Poor Act, 1867, casting on the managers of a workhouse any special duties as to the management of the sick poor, nor any power to raise funds for any expenditure incurred for such an object, farther than it was involved in the maintenance of the persons chargeable. It seems that the Legislature left the managers of a workhouse subject to the duties which the common law cast upon those having the charge of others, and did not see any necessity for providing them with extraordinary powers, or with the means of raising funds for extraordinary expenses. Those who have the charge of a sick person, if he is helpless (whether the disease be infectious or not) are, at common law, under a legal obligation to do, to the best of their ability, what is necessary for the preservation of the sick person. And the sick person, if not helpless, is bound to do so for his own sake. When the disease is infectious, there is a legal obli- gation on the sick person, and on those who have the custody of him, not to do anything that can be avoided which shall tend to spread the infection ; and if either do so, as by bringing the infected person into a public thoroughfare, it is an indictable offence, though it will be a defence to an indictment if it can be shewn that there was a sufficient cause to excuse what is primd facie wrong : Rex v. Burnett 1 - To take an extreme case, if a house in which a person ill of an infectious disorder lay bedridden, took fire, and it was necessary to choose whether the sick person was to be left to perish in the flames, or to be carried out through the crowd at the risk, or even the certainty, of infecting some of them, no one could suppose that those who carried out the sick person could be punishable ; and probably a much less degree of necessity might form an excuse ; but still some excuse is required. It is not necessary here to determine what con- stitutes a sufficient excuse. Where those who have the custody of the person sick of an infectious disorder have not the means of isolating him from the other inmates, which is very commonly the case with the poor, and conse- quently those other inmates and the neighbours are exposed to the risk of infection, I think that the inability to isolate him would form a sufficient excuse to be a defence to any indictment ; and I think also, 1 4 Man. & S. 272. 136 Select Cases on the Law of Torts. [part i. though I am not aware of any authority on the subject, that the neighbours could not maintain any action for the damage which they would in such a case sustain from the proximity of the infected person, it being a necessary incident to the use of property for habitations in town, that contagious sickness may befall their neighbours. If those who have the charge of the infected person have the means of isolating him on the spot, they certainly do well to use them ; and if it cannot be done on the spot, and they can, either by their own means or by the aid of charitable persons who have erected an hospital, find a place where he can be isolated so as to avoid the risk of infection, they will do well to use these means. I do not mean to express any opinion as to whether, at common law, they would or would not be responsible for not doing so. But there is no authority, and I think no principle, for saying that they are justified in removing him to a place where the neighbours would be exposed to contagion, though it may be that those neighbours would be fewer in number than the neighbours of the spot where the infection broke out; nor for saying that if that was done, and the contagion was such as to amount to a real nuisance, those neighbours might not maintain an action, and obtain an in- junction to protect themselves against the importation of foreign infection. Tor though, as I have already said, I think it an incident to the use of a habitation in a town that the occupier must bear the necessary risks of the inmates of a neighbouring habitation falling ill of a contagious disease, I do not think it an incident that he is to submit to his neighbour's wilfully, though for very laudable motives and not maliciously, bringing in contagion where it did not previously exist, if the effect is not merely to alarm him, but to injure him. This, I think, is borne out by the decisions on the subject of inocu- lation If this be a correct view of the law, it is obvious that, however desirable it might be to erect and maintain asylums for the reception of the sick poor, sick of infectious disorders, it could not be done by any parochial authorities unless the authority of Parliament was obtained, for raising funds for the purpose and authorizing a public body to obtain a site for the asylum. And the Metropolitan Poor Act, 1867, certainly created such a body and gave it powers to raise money ; and without farther powers this body could erect an asylum, provided it was done in such a manner as neither to endanger the public health, nor to form a nuisance to private property. It is, for the reason given by Lord Hardwicke, necessary that the site of such an asylum should ' be not far from the places where the patients fall sick, and conse- quently, in the case of the metropolis, be in an inhabited district. I wish to express myself without prejudice to what I suppose will be one of the points to be decided in the Appeal No. 1. If it be the fact sect, in.] Managers of Metropolitan Asylum District v. Hill. 137 that such an asylum must be a nuisance, unless on a site so extensive as to keep all habitations at a considerable distance, it may be that such a site cannot be obtained at all in the neighbourhood of the metropolis, or only at a cost so enormous as to make it practically impossible. If that is the case it might be for the consideration of the Legislature whether the certain danger of infection, from leaving the infectious sick paupers where they fell ill, exceeded that which would arise from a well-regulated hospital erected in another place, to such an extent that it was for the public benefit that this latter risk should be run ; and whether the rights of owners of property there should stand in the way of such a public benefit, or should be made to give way, with or without compensation. In the Metropolitan Poor Act, 1867, there are provisions, sects. 15, 16, 17, 18, 21, 28, putting everything under the control of the Poor Law Board, and thus affording a considerable, and probably a sufficient, security that any asylum made under that Act should be a well- regulated asylum, and should not be made in any place unless the Poor Law Board thought it a fit place. But the question, as I think, is whether there is an intention shewn on the part of the Legislature to authorize the erection of an asylum where it is a nuisance to owners of the adjoining property if the Poor Law Board thought it a fit place, either mistakenly thinking the asylum would be no nuisance there, or, perhaps rightly, thinking that there was no other place in which it could be erected without being a greater nuisance than if erected there. It is clear that the burthen lies on those who seek to establish that the Legislature intended to take away the private rights of individuals, to shew that by express words, or by necessary impli- cation, such an intention appears. There are no express words in this Act, and I think the weight of argument is rather against than in favour of such an implication. There is no power given to take land for a site otherwise than by agreement. For, though the Lands Clauses Acts are incorporated by sect. 52, yet by sect. 53 so much of the Lands. Glauses Acts as relates to the purchase of lands otherwise than by agreement, shall not be put in force except for the purpose of enlarging an existing workhouse. The asylum under this Act must therefore be either made by (under sect. 18) converting a workhouse into an asylum, which is not the present case, or by erecting one on land purchased or hired by agreement. In Clowes v. Staffordshire Potteries Waterworks Com- pany 1 , Lord Justice Mellish says 2 : "If no compulsory powers were given for the purpose of purchasing lands upon which the works were to be built, it certainly seems extraordinary that compulsory powers 1 L. R. 8 Ch. Ap. 125. " L. B. 8 Ch. at p. 139. 138 Select Oases on the Law of Torts. [part i. should be given to take away the rights of other persons, who have rights in the nature of easements over the lands so purchased." He was discussing the question whether the party grieved retained his right to an injunction, or was compelled to seek for compensation. In the Metropolitan Poor Act, 1867, there is no compensation given, and the question is whether the purchase, by agreement, of the site for the asylum, gave the defendants power without compensation to do, what would have been a wrong to the plaintiffs if done by the former owners ; which thus gives additional force to the argument of Lord Justice Mellish when applied to the construction of this Act. It is true that in sect. 7 it is said that " for each district there shall be an asylum or asylums as the Poor Law Board from time to time directs." But the construction of that is, I think, only that the managers shall make such asylums in obedience to the order of the Poor Law Board, if they can do so by exercise of the powers given them ; and not to say that they must make them at all events, so as to give them additional powers to make the asylums by taking lands, or injuriously affecting lands, otherwise than by agreement. I am sensible of the great difficulty that there may be in finding sites for asylums under this Act, or hospitals under the Public Health Act, 1875, s. 131, unless farther powers be given, but that must be for the consideration of the Legislature. ******* Lord Watson The judgment of this House in The Hammersmith Railway Company v. Brand* determines that where Parliament has given express powers to construct certain buildings or works according to plans and specifications, upon a particular site, and for a specific purpose, the use of these works or buildings, in the manner contem- plated and sanctioned by the Act, cannot, except in so far as negligent, be restrained by injunction, although such use may constitute a nuisance at common law ; and that no compensation is due in respect of injury to private rights, unless the Act provides for such compensa- tion being made. Accordingly the respondents did not dispute that if the appellants or the Local Government Board had been, by the Metropolitan Poor Act, 1867, expressly empowered to build the iden- tical hospital which they have erected at Hampstead, upon the very site which it now occupies, and that with a view to its being used for the treatment of patients suffering from small-pox, the respondents would not be entitled to the judgment which they have obtained. The appellants do not assert that express power or authority to that effect has been given by the Act either to themselves or to the Board ; but they contend that, having regard to the nature of the public 1 L. B. 4 H. L. 171. sect, in.] Managers of Metropolitan Asylwm District v. Hill. 139 duties laid upon them, and the necessities of the case, it must, on a fair construction of the Act, be held that the Legislature did intend them to exercise, and authorize them to exercise, such power and authority under the direction and control of the Poor Law Board. I see no reason to doubt that, wherever it can be shewn to be matter of plain and necessary implication from the language of a statute, that the Legislature did intend to confer the specific powers above referred to, the result in law will be precisely the same as if these powers had been given in express terms. And I am disposed to hold that if the Legislature, without specifying either plan or site, were to prescribe by statute that a public body shall, within certain defined limits, provide hospital accommodation for a class or classes of persons labouring under infectious disease, no injunction could issue against the use of an hospital established in pursuance of the Act, provided that it were either apparent or proved to the satisfaction of the Court that the directions of the Act could not be complied with at all, without creating a nuisance. In that case, the necessary result of that which they have directed to be done must presumably have been in the view of the Legislature at the time when the Act was passed. On the other hand, I do not think that the Legislature can be held to have sanctioned that which is a nuisance at common law, except in the case where it has authorized a certain use of a specific building in a specified position, which cannot be so used without occasioning nuisance, or in the case where (the particular plan or locality not being prescribed) it has imperatively directed that a building shall be provided within a certain area and so used, it being an obvious or established fact that nuisance must be the result. In the latter case the onus of proving that the creation of a nuisance will be the inevitable result of carrying out the directions of the Legislature, lies upon the persons seeking to justify the nuisance. Their justification depends upon their making good these two proposi- tions — in the first place, that such are the imperative orders of the Legislature ; and in the second place, that they cannot possibly obey those orders without infringing private rights. If the order of the Legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and, on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to shew that the Legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the Legislature intended that 140 Select Gases on the Law of Torts. [part i. discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for the purpose. 4|f j|£ {£ jj£ j|£ jj£ j|£ Appeal dismissed with costs. [Editok's Note. The student will do well to contrast with this case that of The London, Brighton and South Coast Ry. Co. v. Truman (L. B. 11 App. Ca. 45), which affords an instance of the statutes that are to be construed as authorizing conduct (e.g., there, the maintenance of a large yard for cattle) which would otherwise be an actionable Nuisance. At p. 57, Lord Selborne states vividly the points which distinguish the case from that of The Metropolitan Asylum District v. Hill.'] (E) Inevitable Accident. [No action lies for damage which, through some "unavoidable 1 " accident, ensues from a lawful act, done with all due care.] STANLEY v. POWELL. Kent Assizes. 1891. L.R. [1891] 1 Q.B. 86. [This was an action of trespass. The plaintiff was a beater, and lost an eye when out shooting, by means of a pellet of shot fired from the defendant's gun. At the trial, at Maidstone Assizes, the jury found that the defendant had not been negligent ; and the case was reserved for further consideration. The arguments took place in London ; and his Lordship reserved judgment.] Denman, J. In the statement of claim the plaintiff alleged that the defendant had negligently, wrongfully, and unskilfully fired his gun and wounded the plaintiff in the eye ; and that the plaintiff in consequence had lost his sight and suffered other damage. The de- fendant denied the negligence alleged. After the evidence on both sides (which was conflicting) had been heard, I left the three following questions to the jury: — 1. Was plaintiff injured by a shot from defendant's gun ? 2. Was the defendant guilty of negligence in firing the charge, to which that shot belonged, as he did? 3. Damages 1 The undisputed facts were that on November 29, 1888, the defend- ant and several others were out pheasant shooting in a party ; some being outside and others inside of a wood which the beaters were then 1 Unavoidable, that is, by such a degree of care as an ordinary reasonable man would take ; though possibly avoidable by some still greater degree. sect, in.] Stanley v. Powell. 141 beating up. The plaintiff was employed by one Greenwood (who was the owner of the shooting, and one of the party) to carry cartridges and any game that might be shot. Several beaters were driving the game along a plantation of saplings towards an open drive. The plaintiff stood just outside a gate which led into a field outside the plantation at the end of the drive. The defendant was walking along in that field, a few yards from the hedge which bounded the plantation. As he was going forward, a pheasant rose inside the plantation. The defendant fired one barrel at the bird, and (according to the evidence for the defendant) struck it with his first shot. There was a consider- able conflict of evidence as to details ; but the jury must, I think, be taken to have adopted the version of the facts sworn to by the de- fendant's witnesses. They swore that the bird, when struck by the first shot, began to lower and turn back towards the beaters ; where- upon the defendant fired his second barrel and killed the bird. But a shot glancing from the bough of an oak (which was in or close to the hedge), and striking the plaintiff, must have caused the injury com- plained of. The oak in question, according to the defendant's evidence, was partly between the defendant and the bird when the second shot was fired. But it was not in a line with the plaintiff ; but, on the contrary, so much out of that line that, to hit the plaintiff, the shot must have been diverted to a considerable extent from the direction in which the gun was pointed. The distance between the plaintiff and the defendant in a direct line, when the second barrel was fired, was about 30 yards. The case for the plaintiff was entirely different, but I think it must be held that the jury took the defendant's account of the matter ; for they found the second question left to them in the negative. Before summing up the case to the jury I called the attention of the parties to the doctrine which seemed to have been laid down in some old cases that, even in the absence of negligence, an action of trespass might lie. It was agreed that I should leave the question of negligence to the jury, (but if necessary the pleadings were to be deemed to be amended so as to raise any case or defence upon the facts, with liberty to the Court to draw inferences of fact) ; and that the damages should be assessed contingently. The jury assessed them at £100. I left either party to move the Court for judgment. But it was afterwards agreed that the case should be argued before myself on further con- sideration, and that I should give judgment (notwithstanding that T had left the parties to move the Court), as though I had originally reserved it for further consideration before myself. Having heard the arguments, I am of opinion that by no amend- ment that could be made, consistently with the finding of the jury, could I properly give judgment for the plaintiff. It was contended on his behalf that this was a case in which an action for trespass would 142 Select Cases on the Law of Torts. [part i. have lain before the Judicature Acts. This contention was mainly founded on certain dicta which, until considered with reference to the cases in which they were uttered, seem to support that contention. But no decision was cited (nor do I think that any can be found) going so far as to hold that if A is injured by a shot from a gun, fired at a bird by B, an action for trespass will necessarily lie, even though B is proved to have fired the gun without negligence and without intending to injure the plaintiff or to shoot in his direction. The jury having found that there was no negligence on the part of the de- fendant, the most favourable way in which it is now possible to put the case for the plaintiff is to consider the action as brought for a trespass ; and to consider that the defendant has put upon the record a defence denying negligence, and specifically alleging the facts sworn to by his witnesses, which the jury must be considered to have found proved ; and then to consider whether those facts, coupled with the absence of negligence established by the jury, amount to an excuse in law. The earliest case relied upon by the plaintiff was one in the Year- book (21 Hen. VII, fo. 28a), where one shot an arrow at a mark which glanced from it and struck another ; it was holden to be a trespass. On turning to the case in the Year-book it appears that the passage in question was a mere dictum of Rede, who was at the time (1506) a Judge ; in a case of a very different kind from that now in question. It only amounts to a statement that an action of trespass may lie even where the act done by the defendant is unintentional. The words relied on are, " Mes ou on tire a les buts et blesse un homme, coment que est incontre sa volonte ; il sera dit un trespassor incontre son entent.'' But in that very passage Rede makes observations which shew that he has in his mind cases in which that which would be primd facie a trespass may be excused. The next case relied upon for the plaintiff was Weaver v. Ward f decided in 1607 (Hob. 134). There is no doubt that that case contains dicta which per se would be in favour of the plaintiff. But it also contains the following summing up of the law applicable to cases of unintentional injury by acts which are primd facie trespasses : — "Therefore, no man shall be excused of a trespass except it may be judged utterly without his fault " — (shewing clearly that there may be such cases). That case, after all, only decided that when plaintiff and defendant were skirmishing as soldiers of the trainband, and the one " casualiter et per infortunium et contra voluntatem suam" (which must be translated "accidentally and in- voluntarily ") shot the other, an action of trespass would lie unless he could shew that such involuntary and accidental shooting was done under such circumstances as utterly to negative negligence. Such cases may easily be supposed, in which there would be no two opinions sect, in.] Stanley v. Powell. 143 about the matter. But other cases may — as the present case did — involve considerable conflicts of evidence and opinion which, until recently, only a jury could dispose of. The case of Gibbons v. Pepper (1 Lord Raymond, 38), decided in 1695, merely decided that a plea shewing that an accident caused by a runaway horse was inevitable, was a bad plea in action of trespass — because if inevitable that was a defence under the general issue. It was a mere decision on the plead- ing, and laid down nothing as regards the point raised in the present case. The case of Gibbons v. Pepper is also reported in 4 Mod. 405, and the concluding words of the judgment, which shew clearly the ratio decidendi of that case, are these : — " He should have pleaded the general issue, for if the horse run away against his will he would have been found not guilty ; because in such a case it cannot be said, with any colour of reason, to be a battery in the rider." The more modern cases of Wakeman v. Robinson (1 Bing. 213) and Hall v. Fearnley (3 Q. B. 919) lay down the same rule as regards the pleading point, though the former case was also relied upon as an authority by way of dictum in favour of the plaintiff. And the latter may fairly be relied upon by the defendant, for Wightman, J., in his judgment explains Wakeman v. Robinson thus : — " The act of the defendant" — viz. driving a cart at the very edge of a narrow pavement, on which the plaintiff was walking, so as to knock him down — "was primd facie unjustifiable, and required an excuse to be shewn. When the motion was first made I had in my recollection the case of Wakeman v. Robinson. It was there agreed that an involuntary act might be a defence on the general issue. The decision, indeed, turned on a different point, but the general proposition is laid down. I think the omission to plead the defence has deprived the defendant of the benefit of it and entitled the plaintiff to recover." But in truth neither case decided whether, where an act such as discharging a gun is voluntary, and the result injurious, but without negligence, an action of trespass can, nevertheless, be supported as against a plea pleaded and proved, which the jury find to be established, to the effect that there was no negligence on the part of the defendant. The case of Underwood v. Hewson (1 Strange, 596), decided in 1724, was relied on for the plaintiff. The report is very short : — "The defendant was uncocking a gun ; and, the plaintiff standing to see it, it went off and wounded him. At the trial, it was held that the plaintiff might maintain trespass. Strange pro defendente." The marginal note in Nolan's edition of 1795 — not necessarily Strange's own composition — is this, " Trespass lies for an accidental hurt," and in that edition there is a reference to Buller's N.P. On referring to Buller (p. 16), where he is dealing with Weaver v. Ward, he writes as follows : " So it is no battery if one soldier hurts another in 144 Select Oases on the Law of Torts. [part i. exercise. But, if he plead it, he must set forth the circumstances so as to make it appear to the Court that it was inevitable and that he com- mitted no negligence to give occasion to the hurt ; for it is not enough to say that he did it casualiter et per infortunium et contra voluntatem suam, for no man shall be excused of a trespass unless it be justified entirely without his default. And therefore it has been holden that an action lay where the plaintiff, standing by to see the defendant uncock his gun, was accidentally wounded ; Strange, 596." On referring back to Weaver v. Ward I can find nothing in the report to shew that the Court held that in order to constitute a defence in the case of a trespass it is necessary to shew that the act was inevitable. If inevitable, it would seem that that was a defence under the general issue, but a distinction is drawn between an act which is inevitable and an act which is excusable ; and what Weaver v. Ward really lays down is that "no man shall be excused of a trespass except it may be judged utterly without his fault."... But the case on which most reliance was placed by plaintiff's , counsel was Leame v. Bray (3 East, 593). That was an action of trespass in which the plaintiff complained that the defendant with force and arms drove and struck a chaise, which he was driving on the highway, against the plaintiff's curricle, which plaintiff's seryant was driving ; by means whereof the servant was thrown out and the horses ran away, and the plaintiff, who jumped off to save his life, was injured. The facts stated in the report include a statement that " the accident happened owing to the defendant, on a dark night, driving his carriage on the wrong side of the road and the parties not being able to see each other ; and if the defendant had kept his right side there was ample room for the carriages to have passed without injury." The report goes on to state : — " But it did not appear that blame was imputable to the defendant in any other respect as to the manner of his driving. It was, therefore, objected for the defendant that, the injury having happened from negligence and not wilfully, the proper remedy was by an action on the case, and not of trespass vi et armis. The plaintiff was thereupon nonsuited." On the argument of the rule to set aside the nonsuit, the whole discussion turned upon the question whether the injury was " immediate from defendant's act, or con- sequential only from it " ; and in the result the nonsuit was set aside. But it clearly appears from the report that there was evidence upon which the jury might find negligence ; and, indeed, the defendant's counsel assume it in the very objection which prevailed with Lord Ellenborough when he nonsuited the plaintiff. There is nothing in any of the judgments to shew that if in that case a plea had been pleaded denying any negligence, and the jury had found that the defendant was not guilty of any negligenoe, but (for instance) that sect, in.] Stanley v. Powell. 145 the accident happened wholly through the darkness of the night ren- dering it impossible to distinguish one side of the road from the other, and without negligence in either party, the Court would have held that the defendant would have been liable (either in trespass or in case). All the cases to which I have referred were before the Court of Exchequer in 1875 in the case of Holmes v. Mather (L. R. 10, Ex., 261), and Mr Baron Bramwell, in giving judgment in that case, dealt with them thus: — "As to the cases cited, most of them are really decisions on the form of action, whether case or trespass. The result of them is this, and it is intelligible enough. If the act that does an injury is an act of force vi et armis trespass is the proper remedy (if there is any remedy) where the act is wrongful either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons no action is maintainable ; though trespass would be the proper form of action if it were wrongful." That is in accordance with a passage cited by Mr Dickens from Bacon's Abridge- ment (Trespass, 706), where the word "inevitable" does not find a place. " If the circumstance which is specially pleaded in an action of trespass do not make the act complained of lawful" (by which I understand justifiable even if purposely done to the extent of purposely inflicting the injury — as, for instance, in a case of self-defence), '' and only make it excusable, it is proper to plead this in excuse, and it is in this case necessary for the defendant to shew not only that the act complained of was accidental" (by which I understand, that the injury was unintentional), " but likewise that it was not owing to neglect or want of due caution." In the present case, the plaintiff sued in respect of an injury owing to defendant's negligence — there was no pretence for saying that it was intentional so far as any injury to the plaintiff was concerned- — and the jury negatived this negligence. It was argued that, nevertheless, inasmuch as the plaintiff was injured by a shot from the defendant's gun, this was an injury owing to an act of force committed by the defendant, and therefore an action would lie. I am of opinion that this is not so ; and that, against any state- ment of claim which the plaintiff could suggest, the defendant must succeed, if the defendant pleaded the facts sworn to by the witnesses for the defendant in this case, and the jury, believing those facts, found the verdict which they have found as regards negligence. In other words, I am of opinion that, if the case is regarded as an action on the case for an injury by negligence, the plaintiff has failed to establish that which is the very gist of such an action. If, on the other hand, it is turned into an action of trespass, and the defendant is supposed to have pleaded a plea denying negligence and establishing that the injury was (in the sense above explained) "accidental," the verdict of the jury is equally fatal to the action. Judgment for defendant. k. 10 146 Select Cases on the Law of Torts. [paet i. [Editor's Note. The foregoing decision took so broad a ground as to render it needless to discuss the defendant's further contention that, even if a purely accidental trespass could be actionable, this particular plaintiff had debarred him- self from suing, for by voluntarily joining the shooting party he had impliedly consented to accept its risks ; (cf. L. B. 1 Ex. 286 — 7). This judgment in Stanley v. Powell affords elaborate illustration of the change which has passed over the English conception of the legal liability for Tort (see Mr Justice 0. W. Holmes' The Common Law, Lecture in). The older decisions paid more regard to the fact that the plaintiff had sustained a loss through the defendant's conduct, than to the question whether there was anything in that conduct so blameworthy as to justify them in shifting this loss from the one man's shoulders to the other man's. But, at the present day, the idea of Culpa- bility has become judicially associated with that of Liability for Torts, (though the Workmen's Compensation Act indicates a reversion on the part of the legislature to the older and cruder view). This more scientific view is approved by American courts ; as the following case will shew.] [An American instance of the same rule.] BROWN v. KENDALL. Supremk Court of Massachusetts, J7.S.A. 1850. 6 Cushing 292. [Thjs was an action of trespass for assault and battery. Evidence was given, at the trial, that two dogs, belonging re- spectively to the plaintiff and the defendant, were fighting. The defendant took a stick about four feet long, and commenced beating the dogs in order to separate them. The plaintiff was looking on, only half-a-dozen yards away. In their struggle, the dogs approached the defendant; who retreated backwards from before the dogs, striking them as he retreated. As he approached the plaintiff (with his back towards him), in raising his stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting harm. Whether it was necessary or proper for the defendant to interfere in the fight between the dogs ; whether the interference, if called for, was in a proper manner, and what degree of care was exercised by each party on the occasion, — were subjects of controversy. The defendant requested the judge to instruct the jury, that " If both the plaintiff and defendant at the time of the blow were using ordinary care — or if at that time the defendant was using ordinary care and the plaintiff was not — or if at that time both plaintiff and defendant were not using ordinary care — then the plaintiff cannot sect, in.] Brown v. Kendall. 147 recover." And the defendant further requested the judge to instruct the jury that, " Under the circumstances, even if the plaintiff was using ordinary care and the defendant was not, the plaintiff cannot recover"; and that "The burden of proof, on all these propositions, is on the plaintiff." The judge declined to give these instructions. He left the case to the jury with the following instructions : " If the defendant, in beating the dogs, was doing a necessary act (or one which it was his duty under the circumstances of the case to do), and was doing it in a proper way, then he was not responsible in this action, provided he was using ordinary care at the time of the blow. If it was not a necessary act (i.e. if he was not in duty bound to attempt to part the dogs, but might with propriety interfere or not as he chose), the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable (using the word ' inevitable ' not in a strict but a popular sense). If, however, the plaintiff, when he met with the injury, was not in the exercise of ordinary care, he cannot recover ; and this rule applies, whether the interference of the defendant in the fight of the dogs was necessary or not. If the jury believe that it was the duty of the defendant to interfere, then the burden of proving negligence on the part of the defendant, and ordinary care on the part of the plaintiff, is on the plaintiff. If the jury believe that the act of interference in the fight was unnecessary, then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of the plaintiff, is on defendant." The jury under these instructions returned a verdict for the plaintiff; whereupon the defendant tendered a bill of exceptions.] ******* Shaw^C.J., for the Court.... The facts set forth in the bill of ex- ceptions preclude the supposition that the blow inflicted by the defendant was intentional. The whole case proceeds on the assump- tion, that the damage sustained by the plaintiff, from the stick held by the defendant, was inadvertent and unintentional ; and thus involves the question how far, and under what qualifications, the party by whose unconscious act the damage was done is responsible for it. (We use the term " unintentional " rather than "involuntary," because in some of the cases it is stated that the act of holding and using a weapon or instrument, the movement of which is the im- mediate cause of hurt to another, is a " voluntary '' act, although its particular effect in hitting and hurting another is not within the purpose or intention of the party doing the act.) It appears to us, that some of the confusion in the cases on this subject has grown out of the long-vexed question, under the rule of 148 Select Cases on the Law of Torts. [part i. the common law, whether a party's remedy, where he has one* should be sought in an action on the case, or in an action of trespass. (This is very distinguishable from the question, whether in a given instance, any action will lie.) The result of these cases is, that if the damage complained of is the immediate effect of the act of the defendant, Trespass lies ; if consequential only, and not immediate, Case is the proper remedy ; Leame v. Bray (3 East, 593), Hugget v. Montgomery (2 N. R. 446). In these discussions it is frequently stated by judges that, when one receives injury from the direct act of another, trespass will lie. But we think this is said in reference to the question, whether trespass and not case will lie, assuming that the facts are such that some action will lie. These dicta are no authority, we think, for holding, that damage received by a direct act of force for another will be sufficient to maintain an action of trespass, whether the act was lawful or unlawful, and neither wilful, intentional, nor careless. In the principal case cited, Leame v. Bray, the damage arose from the act of the defendant, in driving on the wrong side of the road, in a dark night, which was clearly negligent if not unlawful. In the course of the argument of that case (p. 5Q5), Lawrence, J., said : " There cer- tainly are cases in the books, where, the injury being direct and immediate, trespass has been holden to lie, though the injury was not intentional." The term "injury" implies something more than damage ; but, independently of that consideration, the proposition may be true, because though the injury was unintentional, the act may have been unlawful or negligent, and the cases cited by him are perfectly consistent with that supposition. So the same learned judge' in the same case says (p. 597), " No doubt trespass lies against one who drives a carriage against another, whether done wilfully or not." But he immediately adds, " Suppose one who is driving a carriage is negligently and heedlessly looking about him, without attending to the road when persons are passing, and thereby runs over a child and kills him, is it not manslaughter ? And if so, it must be trespass ; for every manslaughter includes trespass " ; shewing what he understood by a case "not wilful." We think, as the result of all. the authorities, that the plaintiff must come prepared with evidence to shew either that the intention was unlawful, or that the defendant was in fault ; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable ; Wakeman v. Robinson (1 Bing. 213). If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. Com. Dig. Battery, A. In applying these rules to the present case, we can perceive no reason why instructions (asked for by the defendant) sect. in. J Brown v. Kendall. 149 ought not to have been given to the effect that if both plaintiff and defendant at the time of the blow were using ordinary care — or if at that time the defendant was using ordinary care, and the plaintiff was not — or if at that time, both the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover. In using this term, ordinary care, it may be proper to state that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. A man who should have occasion to discharge a gun on an open and extensive marsh, or in a forest, would be required to use less circumspection and care, than if he were to do the same thing in an inhabited town, village, or city. To make an accident, or casualty, or as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed. We are not aware of any circumstances, in this case, requiring a distinction between acts which it was lawful to do, and acts of legal duty. (There are cases, undoubtedly, in which officers are bound to act under process, for the legality of which they are not responsible, — and perhaps some others — in which this distinction would be im- portant.) We can have no doubt that the act of the defendant in attempting to part the fighting dogs, (one of which was his own, for the injurious acts of which he might be responsible), was a lawful and proper act, which he might do by proper and safe means. If, then, in doing this act, using due care and all proper precautions necessary to the exigency of the case, to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in his eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable ; and therefore the action would not lie. Or if the defendant was chargeable with some negligence, and if the plaintiff was also chargeable with negligence, we think the plaintiff cannot recover without shewing that the damage was caused wholly by the act of the defendant, and that the plaintiff's own negligence did not contribute as an efficient cause to produce it. The court instructed the jury, that if it was not a necessary act, and the defendant was not in duty bound to part the dogs, but might with propriety interfere or not as he chose, the defendant was re- sponsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word not in a strict but a popular sense. This is to be taken in connection with the charge afterwards given, that 150 Select Gases on the Law of Torts. [part i, if the jury believed that the act of interference in the fight was unnecessary, (that is, as before explained, not a duty incumbent on the defendant), then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of plaintiff, was on the defendant. The court are of opinion that these directions were not conformable to law. If the act of hitting the plaintiff was unintentional on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case ; and therefore such want of due care became part of the plaintiff's case ; and the burden of proof was on the plaintiff to establish it. Perhaps the learned judge, by the use of the term " extraordinary care," in the above charge, may have intended nothing more than that increased degree of care and diligence, which the exigency of particular circumstances might require, and which men of ordinary care and prudence would use under like circumstances, to guard against danger. If such was the meaning of this part of the charge, then it does not differ from our views, as above explained. But we are of opinion, that the other part of the charge, that the burden of proof was on the defendant, was incorrect. Those facts which are essential to enable the plaintiff to recover, he takes the burden of proving. The evidence may be offered by the plaintiff or by the defendant ; the question of due care, or want of care, may be essentially connected with the main facts, and arise from the same proof. But the effect of the rule, as to the burden of proof, is this, that when the proof is all in, and before the jury, from whatever side it comes, and whether directly proved or inferred from circumstances, if it appears that the defendant was doing a lawful act, and unintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury that the defendant is chargeable with some fault, negligence, care- lessness, or want of prudence, the plaintiff fails to sustain the burden of proof, and is not entitled to recover. New trial ordered. sect. in. J Priestley v. Fowler. , 151 (F) Leave and Licence. [A person cannot bring an action for damage if he consented to let it be done, or to run the risk of its being done , (at any rate if the damage is merely tortious and not criminal).] PRIESTLEY v. FOWLER. Court op Exchequer. 1837. 3 M. and W. 1. [Editor's Note. This case (reported supra, p. 88) established the doctrine of Common Employment, which is one of the most familiar instances of this defence of leave and licence — a defence that is based on the maxim Volenti non fit injuria. ("Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire," says Pomponius; Dig. 50. 17. 203, cf. 13. 6. 23.) That doctrine, as we have seen (pp. 88 — 90, 94 — 97), proceeds on the assumption that a man, by voluntarily entering the employment of another, consents to run all the ordinary risks incident to the services he is to render ; and that amongst these risks must be reckoned all such as arise from the negligence of the fellow-servants working with him in this employment which is common to them all. Similarly, as an American judge has tersely said, an employe " may expressly contract to take the obvious risks of danger from defective machinery. If he does so, hiB employer owes him no duty in respect to such risks ; and if he is hurt, from a cause included in the contract, the maxim Volenti non fit injuria applies, and he cannot recover. Whether he knows the particulars of the danger is immaterial, if he knows there is danger, and expressly contracts in regard to it without caring to know the particulars. ...And in such a case he absolves his employer from what otherwise might be his duty of making the machinery safer. The reason applies equally where without any express stipulation in regard to risks, he enters a service which, by reason of the obvious condition of the ways, works, and machinery, involves peculiar dangers. Such a contract as ought to be implied from the situation and dealings of the parties is implied; and it has the same effect as if expressly made." {Per Enowlton, J., 158, Mass. 139.)] 152 Select Oases on the Law of Torts. [part i. [But, to constitute consent, there must be both knowledge of the risk of damage and also acquiescence.] SMITH v. BAKER AND SONS. House of Loeds. L.R. [1891] App. Ca. 325. This appeal arose in an action brought by the appellant in the County Court of Yorkshire, held at Halifax, to recover damages against the respondents (who were railway contractors) for injuries sustained by him whilst in their employment. The appellant had been working for the respondents on the Halifax High Level Railway for some months prior to the day on which he received his injuries. The duties assigned to him when he first entered their employment were to fill skips or crates with stones, which were to be lifted by a steam crane, in order to be put into waggons. He was next engaged in slinging stones on to the crane, and about two months before the accident he was set to work a hammer and drill with two other servants of the respondents, he working the drill whilst they worked the hammer. On the day of the accident he was sent with two others to drill a hole in the rock in a cutting. "Whilst they were thus employed, stones were being lifted from the cutting, which was seventeen or eighteen feet deep. The crane was on the top of the cutting, near the edge. In slinging a stone a chain was put round it and a hook hitched into one of the links. To this chain the chain from the crane was fastened. When the stones were clear of the bank the arm of the crane was jibbed in the one or the other direction, according to the position of the waggons into which the stone was to be loaded. If it was jibbed in one direction it passed over the place where the appellant was working. Whilst he was working the drill, a stone in the course of being lifted fell upon him, and caused serious injuries. No warning was given that the stone was to be jibbed in that direction. The plaintiff in his evidence stated that the men were jibbing over his head, that whenever he saw them he got out of the way, but at the time that the stone fell upon him he was working the drill and so did not see the stone above. One of his fellow-workmen had in the plaintiff's hearing previously complained to the ganger of the danger of slinging stones over their heads, and the plaintiff himself had told the crane-driver that it was not safe. In cross-examination the plaintiff stated that he was a navvy, and accustomed to this particular work for six or seven years. He had been at it long enough to know that the work was dangerous ; he had been at the same class of work in the same cutting when they were jibbing overhead every day ; he sect. in. J Smith v. Baker and Sons. 153 was doing that safely for four or five months. Sometimes he could see the stones being craned up above him ; when he saw them he got out of the way. At the close of the plaintiff's case the defendants' counsel submitted that the plaintiff must be non-suited on his own admission as to his knowledge of the risk, citing Thomas v. Quartermaine 1 . The learned judge (Judge Snagge), however, refused to non-suit. The only witness called for the defendants was Hanson, the ganger, who was superintending the work on the day of the accident, and under whose orders the plaintiff was. Hanson stated that they had put the sling-chain on to the stone in the ordinary way, but no explanation was given or suggestion made as to what was the cause of the disaster. He said the rule at the works was that every one should look out for himself j it was part of the plaintiff's employment to look out ; the men ought to have stopped work while the stone was being jibbed round ; that would be the safe way ; he told the men to get out of the way. After the defendants' case closed the learned judge left several questions to the jury, which were answered by them as follows : 1. — Q. Was the machinery for lifting the stone from the cutting, taken as a whole, reasonably fit for the purpose for which it was applied? — A. No. 2. — Q. Was the omission to supply special means of warning when the stones were being jibbed a defect in the ways, works, machinery and plant? — A. Yes. 3. — Q. If so, were the employers (or some person engaged by them to look after the condition of the works, etc.) guilty of negligence in not remedying that defect ? — A. Yes. 4. — Q. Was the plaintiff guilty of contributory negligence? — A. No. " 5. — Q. Did the plaintiff voluntarily undertake a risky employment with the knowledge of its risks? — A. No. 6. — Q. Amount of damages (if any) ? — A. £100. Application was made on behalf of the defendants to have judg- ment entered for them, notwithstanding the findings of the jury, on the ground that the case ought not to have been allowed to go to them, the plaintiff having admitted that he knew of the risk and voluntarily incurred it. The learned judge directed judgment to be entered for the plaintiff for £100, the amount of damage assessed by the jury The Court of Appeal afterwards reversed this judgment, and entered judgment for the defendants, mainly, or it may be said exclusively, on the ground that there was no evidence of negligence on the part of the defendants ; although the Lord Chief Justice expressed an opinion that the judgment of the county court judge ought to be set aside on another ground also, namely, that the i 18 Q. B. D. 685. 154 Select Oases on the Law of Torts. [paet i. plaintiff' had been engaged to perform a dangerous operation and took the risk of the operation he was so called upon to perform. jk j|t djL ji£ ji* jit jit E. Tindal Atkinson, Q.C., and W. S. Robson for the respondents The plaintiff admitted he knew he could not watch the crane. The only defect found by the jury was the omission to give warning, and that defect (if it was one) the plaintiff' knew of, and voluntarily under- took to run the risk. No evidence was given of any other defect or of any negligence in slinging the stone or working the crane or otherwise. The jury probably meant that the machinery, that is the system, was defective unless warning was given ; but that gives the plaintiff no advantage. He either originally contracted to run the risk or continued in his employment after knowledge that there was no one to give warning. The maxim " Volenti non fit injuria " applies as much to cases outside a contract — visitors at a house for instance — as to contracts. Here it is a case of contracting to run the risk. A man who with knowledge contracts to work under a defective system — e.g. a shaky roof — cannot complain if the roof falls. Jjt Jfc j|£ Jit Jig. J|i JJ£ Lord Herschell. . . . It was said that the maxim, "Volenti non fit injuria," applied, and effectually precluded the plaintiff from recovering. The maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong. The maxim has no special application to the case of employer and employed, though its application may well be invoked in such a case. The principle embodied in the maxim has sometimes, in relation to cases of employer and employed, been stated thus : — A person who is engaged to perform a dangerous operation takes upon himself the risks incident thereto. To the proposition thus stated there is no difficulty in giving an assent, provided that what is meant by engaging to perform a dangerous operation, and by the risks incident thereto, be properly defined. The neglect of such definition may lead to error. Where a person under- takes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action. For example, one who has agreed to take part in an operation necessitating the production of fumes injurious to health, would have no cause of action in respect of bodily suffering or inconvenience resulting therefrom, though another person residing near to the seat of these operations might well maintain an action if he sustained such injuries from the same cause. sect. in. J Smith v. Baker and Sons. 155 But the argument for the respondents went far beyond this. The learned counsel contended that, even though there had been negligence on the part of the defendants, yet the risk created by it was known to the plaintiff; and inasmuch as he continued in the defendants' employment, doing their work under conditions, the risk of which he appreciated, the maxim, " Volenti non fit injuria," applied, and he could not recover ; that his proper course, if he wished to avoid the risk of his employers' negligence, was to refuse to perform the work under such conditions. Their argument necessarily went this length, for the facts on which it was grounded were simply these : that the plaintiff had admitted that he knew the work was dangerous. I am not quite sure that he was not referring in his answer to the character of the work generally, rather than to the special danger arising from jibbing the stones overhead; but in a subsequent answer he stated that he had heard a fellow-workman say to the ganger that it was dangerous to jib stones and skips over their heads, and that he thought so too. It is obvious that the degree in which the work was dangerous depended entirely on the conditions under which it was carried on and the amount of care exercised. It would be practically unimportant or very great according to the character of the appliances used, the mode in which the stone was slung, and the presence or absence of warning at the critical time. In the present case it must be taken on the finding of the jury that the danger was at least enhanced and the catastrophe caused by the negligence of the defendants ; and the question for your Lordships' consideration is whether, under such circumstances, the fact of the plaintiff having continued to perform the duties of his service precludes his recovery in respect of this breach of duty because the acts or defaults which constituted it were done " volenti." There may be cases in which a workman would be precluded from recovering even though the risk which led to the disaster resulted from the employer's negligence. If, for example, the inevitable con- sequence of the employed discharging his duty would obviously be to occasion him personal injury, it may be that, if with this knowledge he continued to perform his work and thus sustained the foreseen injury, he could not maintain an action to recover damages in respect of it. Suppose, to take an illustration, that owing to a defect in the machinery at which he was employed the workman could not perform the required operation without the certain loss of a limb. It may be that if he, notwithstanding this, performed the operation, he could not recover damages in respect of such a loss ; but that is not the sort of case with which we have to deal here. It was a mere question of risk which might never eventuate in disaster. The plaintiff 156 Select Cases on the Law of Torts. [part i. evidently did not contemplate injury as inevitable, not even, I should judge, as probable. Where, then, a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer, does the mere continuance in service, with knowledge of the risk, preclude the employed, if he suffer from such negligence, from recovering in respect of his employer's breach of duty ? I cannot assent to the proposition that the maxim, " Volenti non fit injuria," applies to such a case, and that the employer can invoke its aid to protect him from liability for his wrong. It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk. Whatever the dangers of the employment which the employed undertakes, amongst them is certainly not to be numbered the risk of the employer's negligence, and the creation or enhancement of danger thereby engendered. If, then, the employer thus fails in his duty towards the employed, I do not think that because he does not straightway refuse to continue his service, it is true to say that he is willing that his employer should thus act towards him. I believe it would be contrary to fact to assert that he either invited or assented to the act or default which he complains of as a wrong, and I know of no principle of law which compels the conclusion .that the maxim, "Volenti non fit injuria," becomes ap- plicable. It was suggested in the course of the argument that the employed might, on account of special risk in his employment, receive higher wages, and that it would be unjust that in such a case he should seek to make the employer liable for the result of the accident. I think that this might be so. If the employed agreed, in consideration of special remuneration, or otherwise, to work under conditions in which the care which the employer ought to bestow, by providing proper machinery or otherwise, to secure the safety of the employed, was wanting, and to take the risk of their absence, he would no doubt he held to his contract, and this whether such contract were made at the inception of the service or during its continuance. But no such case is in question here. There is no evidence that any such contract was entered into at the time when the plaintiff was first engaged, and the fact that he continued work notwithstanding the employer's breach of duty affords no evidence of such special contract as that suggested. It is to be observed that the jury found that the plaintiff did not voluntarily undertake a risky employment with knowledge of its risks, and the judgment of the county court, founded on the verdict of the jury, could only be disturbed if it were conclusively established upon sect, in.] Smith v. Baker and Sons. 157 the undisputed facts that the plaintiff did agree to undertake the risks arising from the alleged breach of duty. I must say, for my part, that in any case in which it was alleged that such a special contract as that suggested had been entered into I should require to have it clearly shewn that the employed had brought home to his mind the nature of the risk he was undertaking and that the accident to him arose from a danger both foreseen and appreciated. ******* Order of the Court of Appeal reversed, with costs to plaintiff. [Editor's Note. It will be seen that in Smith v. Baker the risk was not one which had been obvious to the injured man at the time be entered into the contract of service ; and therefore it could not be said that he had accepted it in the first instance, but only that after it had been brought to his notice he still continued in the employment. Where the tort is of so extreme a character as to amount to a crime, Leave and Licence would afford no defence to a criminal prosecution ; (see Kenny's Outlines of Criminal Law, p. 110). But the interesting question whether it would be equally unavailing in an action of Tort — e.g. whether a person injured in a prize-fight or duel, or other voluntary but criminal contest, might not recover damages for the injury so sustained — has never been settled in England. Against his claim it might be urged that to allow it would contravene the maxims, Ex turpi causa non oritur actio, and In pari delicto potior est conditio defendentis. And see what is said by Hawkins, J., in L. E. 8 Q. B. D. at p. 353. Sir Frederick Pollock, however, inclines to think that, if the point should arise, English judges would permit the person so injured to sue. And in several of the United States it has been established that such a civil action does lie ; yet, although the Consent is of no effect as a bar to the action, it is allowed in those States, somewhat illogically, to be taken into account as diminishing the amount of damages to be recovered.] 158 Select Cases on the Law of Torts. [part i. (G) Self-defence against Wrongs. [No action lies for damage necessarily inflicted in defending your person or your property against an imminent unlawful harm (unless the damage be disproportionately great).~\ WRIGHT v. RAMSCOT. Court or King's Bench. 1667. 1 Saunders 84. Trespass. — The plaintiff declared that the defendant, on the 1st of April, in the 17th year of the now king, at Castleton, in the county of Derby, did beat, strike, and with a certain knife did stab a mastiff of the plaintiff, so that by reason thereof the mastiff died ; and other wrongs, [If the defamatory statement be true, no tort is committed by publishing it 1 . But it must be true in every substantial part] HELSHAM v. BLACKWOOD AND ANOTHER. Court op Common Pleas. 1851. 11 OB. 111. [The plaintiff, a captain in one of Her Majesty's regiments of militia, brought this action for a libel published by the defendants in Blackwood's Edinburgh Magazine. The libel occurred in an article by Mr Samuel "Warren, Q.C., the novelist ; and the important part of it was as follows : — "We ourselves were present at a remarkable trial for duelling about eighteen or twenty years ago, at the Old Bailey, before the late excellent and very learned Baron Bayley ; on which occasion he laid down the rule of law respecting duelling with uncompromising firmness. This was the case of Captain Helsham who had shot Lieutenant Crowther in a duel at Boulogne. There were rumours of foul play having been practised ; and a clergyman, a brother of the deceased, made strenuous and persevering efforts to bring Captain Helsham to trial. The latter continued for some time after the duel in France, though anxious to return to England. But after taking the opinion of a well-known counsel at the criminal bar, who advised him, that he could not be tried in this country for a duel fought in a foreign country not under the British crown, he came to England ; where he was instantly arrested under the statute 9 Geo. 4, c. 31, s. 37 (which had been passed two or three years previously, and must have altogether escaped the notice of the counsel in question). Captain Helsham was a middle-aged man of gentlemanly appearance, with features indicating determination of character. But they wore an expression of manifest anxiety and apprehension as he entered the dock, and looking down beheld im- mediately beneath him the brother of the man whom he had shot, and through whose ceaseless activity he was then placed on trial for his life as a murderer. For he was to be tried by an uncompromising judge, stern and exact in administering the law Throughout the whole of that agitating day, the prisoner stood as firm as a rock : sometimes his arms folded ; at others, his hands resting on the bar ; 1 "Truth is an answer, not because it negatives the charge of Malice, but... because the law will not permit a man to recover damages in respect of injury to a reputation which he ought not to possess " ; {per Littledale, J., 10 B. & C. at p. 272). sect, ii.] Helsham v. Blackwood and another. 353 while his eyes were fixed intently on the judge, the witnesses, or the counsel, — every now and then glancing with gloomy inquisitiveness at the jury and the judge. His lips were from first to last firmly com- pressed. It was understood that the counsel for the prosecution were in possession of a damning piece of evidence ; viz., that the prisoner had spent nearly the whole of the night immediately preceding the duel in practising pistol firing.'' The defendant put in a plea of justification ; but it merely alleged that the plaintiff had murdered his antagonist, and had been tried for' the murder and acquitted. The plaintiff objected that this plea was bad, inasmuch as it did not answer the gist of the libellous matter set forth in the declaration.] Peacock for the defendants The plaintiff's objection is that the plea does not amount to a justification of the alleged libel. But the substance of the plea is, that the plaintiff was actually guilty of murder ; that he went out with intent to kill, and did kill, his adversary. [Jeevis, C.J. The plea does not justify that part of the libel which speaks of "a damning piece of evidence," namely that the prisoner had spent nearly the whole of the night immediately pre- ceding the duel in practising pistol firing.] There are no degrees of . murder. The court cannot inquire whether the duel was fought in a fair or an unfair manner. [Jeevis, C.J. It certainly would create a very different impression upon the public mind, whether the duel was honestly conducted or not. A man may be guilty of a libel, in imputing dishonourable conduct to another, though not involving a breach of any positive law. Suppose a man indicted for an assault, and acquitted, and another, in publishing an account of the trans- action, to state that the assault was committed in a gross barbarous and unmanly manner, — would the publication be the less libellous because you are able to prove an assault unaccompanied by the circumstances of aggravation?] Assault is very different from murder; it may be condoned. [Maule, J. The question here is, whether the whole libel is justified. Suppose the defendants had said that Captain Helsham fired at his opponent and killed him with a poisoned bullet, would that be justified by such a plea as this 1] It is not denied that there may be circumstances of aggravation which must be specially justified. But, will the court try whether or not a duel has been fought strictly according to the laws of honour 1 [Jeevis, C.J. It is not as you are assuming, the question of murder or no murder that is to be tried here; but libel or no libel. Maule, J. Perhaps you will say that practising pistol firing all the previous night, was no more than adopting reasonable and proper precaution.] It is no more than saying that he was a skilful shot. That which the libel imputes to the plaintiff, is, that he wilfully and maliciously shot at and murdered k. 23 354 Select Cases on the Law of Torts. [part ii. the deceased. In Hunt v. Bell 1 it was held that a party who pursues an illegal vocation, has no remedy by action for a libel regarding his conduct in such vocation. [Maulb, J. There the charge was not libellous, except in relation to the plaintiff's vocation.] So, this is only libellous with reference to the particular act charged, — the fighting the duel. That which is the aggravation here, only goes to the manner of committing the murder. [Maule, J. You impute a great amount of malice, and you say that you need only justify the minimum that suffices to constitute the killing murder.] The court cannot, it is sub- mitted, measure the degrees of malice. [Maule, J. Do you deny the existence of degrees in murder ?] Yes. At least, it is denied that a court of justice can sit and try whether that which is confessedly a murder, has been committed according to the conventional rules of honour and propriety, — whether the thing has or has not been done in a gentlemanly manner. [Maule, J. All murders are not of equal guilt. Many persons have been convicted of murder ; and with the general concurrence of mankind, have not been visited with capital punishment. Nobody suggests that the law of France is absurd, when it speaks of "murder with extenuating circumstances."] The court would not try whether a prize fight was fairly conducted or not. [Maule, J. ' Why not, in an action for libel? Talfourd, J. In Captain De Roos's case, the court of King's Bench sat for two days to inquire whether or not Captain De Roos had been guilty of cheating at an illegal game of cards ; and the issue was found for the defendant. Maule, J. I cannot see why you should be relieved from justifying an imputation of unfair and dishonourable conduct, because it happens to be accompanied by a charge of crime.] In Yrisarri v. Clement 2 it was held that an action of libel does not lie for anything written against a party touching his conduct in an illegal transaction. Murder, like treason, is so repugnant to all law, human and Divine, that the court cannot enter into the consideration of the circumstances under which it was committed : they can only properly inquire whether the charge amounts to murder or not. jf jf •]', Jl£ *!^ dLL £l Maule, J. When an action is brought for a libel, to make a good plea to the whole charge, the defendant must justify everything that the libel contains which is injurious to the plaintiff. If the libel charges the commission of several crimes, or the commission of a crime in a particular manner, the plea must justify the charge as to the number of crimes 3 or the manner of committing the crime. If the crime is charged with circumstances of aggravation, as here, the plea is clearly bad if it omit to justify that. That which is charged in this i 1 Bingham 1. 2 3 Bingham 432, 11 J. B. Moore, 308. 1 See Clarheon v. Lawson, 6 Bingham 266, 587 ; Clarke v. Taylor, 3 Soott, 95. sect, ii.] Helsham v. Blackwood and another. 355 case, is, that the plaintiff had spent nearly the whole of the night immediately preceding the duel in practising pistol firing. If the fact were so, it would make the murder no more murder than if the fact were wanting ; but it clearly aggravates the libel. The defendant's own description of it as a "damning piece of evidence," shews that the libel meant something more than the plea attempts to justify. If the libel had imputed murder simpliciter, it would have been enough to shew in the plea that the plaintiff had committed murder. But, if the libel goes further, and states something besides which is injurious to the plaintiff's character, it is clear upon every principle of the law of libel, that that must be justified as well as the rest, or the defence fails. Nobody can doubt that, if Captain Helsham had been guilty of the atrocity which this libel imputes to him, every one would have thought the worse of him for it. If so, the imputation is a matter for which he would be entitled to maintain an action ; and it is not the less to be justified, because the libel couples it with something more. $b $t ■ijfr yfc $fc ip * Judgment for plaintiff, on insufficiency of the plea. An apology, in the most ample and honourable terms, was after- wards tendered by the defendants, and accepted by Captain Helsham. 23—2 356 Select Cases on the Law of Torts. . [part ii. [The province of the Jury in actions for Defamation.] CAPITAL AND COUNTIES BANK LTD. v. HENTY & SONS. House or Lords. 1882. L.R. 7 App. Ca. 748. [The facts of this case are thus set out by Lord Blackburn in his judgment.] The plaintiffs' claim is thus stated: "1. The plaintiff's are bankers, and the defendants are brewers. 2. The defendants falsely and maliciously wrote and published of the plaintiffs the letter following : ' Messrs Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank (late the Hampshire and North Wilts.). Westgate, Chichester, 2nd December, 1878.' Meaning thereby that the plaintiffs were not to be relied upon to meet the cheques drawn on them, and that their position was such that they were not to be trusted to cash the cheques of their customers." The statement of defence sets out "the circumstances under which the defendants allege that the letter was published, and proceeds : "9. The defendants thereupon, as they lawfully might do, sent to their said tenants the letter in paragraph 2 of the statement of claim set out, which is the writing and publishing complained of, and for which the present action is brought. The defendants deny that the said letter under the circumstances aforesaid is a libel. 10. The defendants say that the occasion of sending the said letter to their tenants as aforesaid was privileged. 11. The defendants deny the innuendo alleged in paragraph 2 of the statement of claim, and say that the said letter does not bear the said alleged meaning. 1 2. The defendants deny each and every of the allegations set forth in para- graph 3 of the statement of claim." On the trial evidence was given on both sides, and on the proof being completed the case was left to the jury, who did not agree, and were discharged. The plaintiffs desire that the case should go for trial before another jury. The defendants' contention is, that they are entitled to judgment on the ground that, if the jury had found in favour of the plaintiffs every circumstance relating to the publication which the evidence could prove, and even though the jury had found that, in their opinion, the letter was libellous, the Court ought to come to the conclusion that the letter published under those circumstances was no libel, and acting on its own conclusion give judgment for the defendants, not setting that verdict aside as not satisfactory, but letting • it stand and giving judgment for the defendants, notwithstanding that sect, n.] Capital & Counties Bank Ltd. v. Henty & Sons. 357 verdict. If this is right, it follows that the case ought not to be sent to another jury. G. Russell, Q.C. (Reid with him) for the appellants : — The plaintiffs succeed if they shew that there was evidence for the jury. It is for the Court to say if the words are capable of a defa- matory meaning; and for the jury to say if they had that meaning in fact: Parmiter v. Coupland 1 ; Sturt v. Blagg s ; Mulligan v. Cole 3 ; Watkin v. Hall 4 . A Judge ought not to withdraw the case from the jury unless he is satisfied that the words are incapable of such a meaning : Cox v. Zee 5 ; Hart v. Wall 6 ; Baylis v. Lawrence 1 . That these words were capable of the meaning charged by the innuendo was held by Lord Coleridge, C.J., who left the case to the jury, and by Grove and Denman, JJ., in the Common Pleas Division, and by Thesiger, L.J., in the Court of Appeal. It cannot therefore be said that no reasonable men would impute that meaning. The secret intent of the publisher is not material: Hanker son v. BUby* ; Fisher v. Clement 9 . The words must be construed as ordinary, reasonable, persons would construe them, and as the persons to whom the circular was shewn did in fact construe them, viz. that the plaintiffs were insolvent, thus causing a run on the bank and loss to the plaintiffs. There was evidence for the jury that this was the true meaning, in the circumstances attending the publication. The defendants were not customers of the bank ; they had never received more than a very few cheques on the plaintiffs' bank. None of the persons to whom the circular was sent could know that there had been a quarrel between the plaintiffs and the defendants. The occasion was not privileged ; but if it was there was actual malice. Sir F. HerseJiell, S.G. (Sir H. Giffard, Q.C, and A. L. Smith with him) for the respondents : — In its primary meaning the circular is not libellous, for it only announces the defendants' intention, and primll facie the primary meaning must be imputed. If a secondary meaning is imputed evidence of facts must be given to shew it, and none was given. The result of the authorities is that when words are capable of two meanings, one innocent and one libellous, the Judge must withdraw the case from the jury, unless the plaintiff gives extrinsic evidence in support of the libellous meaning. ■ The only thing that can be libellous is the supposed reason for the act of the defendants ; it is sought to make them liable for an inference drawn from their words. The same result might have followed from a bare refusal to take cheques on the bank, and that clearly would not have been actionable. What was injurious was the 1 6 M. & W. 105. * 10 Q. B. 207. 3 L. E. 10 Q. B. 549. 4 L. B. 3 Q. B. 396. 5 L. B. 4 Ex. 284. ' 6 2 C. P. D. 146. ' 11 A. & E. 920. 8 16 M. & W. 442. 9 10 B. & C. 472. 358 Select Cases on the Law of Torts. [part ii. defendants' conduct ; and no action lies for such conduct. The occasion ■was privileged, and there was no evidence of actual malice. ******* Lord Blackburn. ...The decision of the cause depends, first, on the question what is the province of the Court in an action for libel, and whether, where the writing is such that opinions might differ as to whether it is a libel or not, the Court can give judgment for the defendant, on the ground that, though the jury have found that, in their opinion the writing is a libel, the Court do not think it made out to be a libel ; that is a question of great public interest ; secondly, whether, supposing that this can be done, the state of the evidence in this case as to the publication is such that the Court ought to come to the conclusion that this is no libel. This is of importance to the parties, but except in so far as it may illustrate the meaning of the first general proposition, it is not of general importance. I have had and still have very great difficulty in making up my mind on this second branch of the case. I will first state my opinion on the first question. A libel for which an action will lie, is defined to be a written state- ment published without lawful justification, or excuse, calculated to convey to those to whom it is published an imputation on the plaintiffs, injurious to them in their trade, or holding them up to hatred, contempt, or ridicule. It must be shewn by evidence that there was a writing, and that it was published. I shall afterwards say something as to what publications are privileged, so as to afford a lawful justification or excuse for the publication, though calculated to convey a libellous im- putation. But, independently of all questions as to privilege, the manner of the publication, and the things relative to which the words are published, and which the person publishing knew, or ought to have known, would influence those to whom it was published in putting a meaning on the words, are all material in determining whether the writing is calculated to convey a libellous imputation. There are no words so plain that they may not be published with reference to such circumstances, and to such persons knowing these circumstances, as to convey a meaning very different from that which would be understood from the same words used under different circumstances. I think that from the earliest times it has, by the law of England, been the province of the Court to say whether words published in writing were a libel or not ; and in order that a Court of error might have before it the materials for enabling it to say whether the decision of the Court below was right or not, the plaintiff was, by the old rules of pleading, required to place all those materials, on which he relied, upon the record. The words themselves must have been set out in the declaration or indictment, in order that the Court might be able to sect. ii. J Capital & Comities Bank Ltd. v. Henty & Sons. 359 judge whether they were a libel or not. And this still remains the law (see Brudttaugh v. The Queen 1 ; Harris v. Warre 3 ). In construing the words to see whether they are a libel, the Court is, where nothing is alleged to give them an extended sense, to put that meaning on them which the words would be understood by ordinary persons to bear, and say whether the words so understood are calculated to convey an injurious imputation. The question is not whether the defendant intended to convey that imputation ; for if he, without excuse or justification, did what he knew or ought to have known was calculated to injure the plaintiff, he must (at least civilly) be responsible for the consequences, though his object might have been to injure another person than the plaintiff, or though he may have written in levity only. As was said in the opinion of the judges delivered in the House of Lords during the discussion of Fox's Bill, I think quite justly, no one can cast about firebrands and death, and then escape from being responsible by saying he was in sport. ...The onus always was on the prosecutor or plaintiff to shew that the words conveyed the libellous imputation, and if he failed to satisfy that onus, whether he had done so or not being a question for the Court, the defendant always was entitled to go free. Since Fox's Act at least, however the law may have been before, the prosecutor or plaintiff must also satisfy a jury that the words are such, and so published, as to convey the libellous imputation. If the defendant can get either the Court or the jury to be in his favour, he succeeds. The prosecutor, or plaintiff, cannot succeed unless he gets both the Court and the jury to decide for him. Now it seems to me that when the Court come to decide whether a particular set of words published under particular circumstances are or are not libellous, they have to decide a very different question from that which they have to decide when determining whether another tribunal, whether a jury or another set of judges might, not unreason- ably, hold such words to be libellous. In fact whenever a verdict has passed against a defendant in a case of libel, and judgment has been given in the Court below, those who bring their writ of error on the ground that there was no libel, assert that both the jury and the Court below have gone wrong : but they are not called upon to say that the words were incapable of conveying the libellous imputation ; it is enough if they can make out, to the satisfaction of the Court in error, that the onus of shewing that they do convey such an imputation is not satisfied ; and there are numerous cases in which, after a verdict for the plaintiff and judgment for him, that judgment has been set aside in error. ...Unless the plaintiff has so far satisfied the onus, which lies on 1 3 Q. B. D. 607. ! 4 C. P. D. 125. 360 Select Cases on the Law of Torts. [part ii. him to shew it to be a libel, that the Court can with sufficient certainty say that the writing has a libellous tendency, they should not so say. . . . This brings me to the second question; as to the evidence here ;... whether the plaintiffs have so far satisfied the onus which is on them, that the Court can (to adopt Lord Tenterden's language) with reasonable certainty say that the tendency of the letter was to convey the libellous imputation. There can be no doubt that the defendants were not required to take cheques drawn on this bank on account of any debts due to them, or in any other way whatsoever, and had a right to refuse to do so. No reason was needed to justify such a refusal. Such a refusal could not be made without using words which, whether written or spoken without sufficient occasion to give rise to a privilege, would be action- able if the tendency of those words would be to cast a doubt on the credit of the bank. I think, however, that there are so many reasons why a person may refuse to take on account the cheques drawn on a particular bank, that, acting in the spirit of what Lord Tenterden said, in Goldstein v. Fobs 1 , the Court could not say that the letter, which in terms goes no further than merely to state the fact, was libellous, as tending to impute a doubt of the credit of the bank. No doubt some people might guess that the refusal was on that ground, but as Brett, L.J., says, it is unreasonable that when there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense to the document. I do not think it libellous by itself to state the fact. But I quite agree that such a statement might be published in such a way, and to such persons, as to shew that its natural tendency would be to convey an impression that the person refusing to take the cheques on that bank did doubt its credit, and then it would be libellous. I do not much like to express an opinion on a state of things not before me, but I think I may safely say that in a time of panic a statement published in the City article of one of our newspapers, that such a one had withdrawn his account from such a bank, might have a tendency to shake the credit of that bank, and that those who published such a statement in such a way would know, or ought to know, that it would be read by persons who come to the paper for information to guide them as to whom they would trust ; and therefore the statement would very probably be understood by such persons as conveying an imputation on the credit of ' that bank. And a statement such as that contained in the letter, if published in such a way, though less obviously connected with the credit of the bank, might perhaps also be so con- strued. I am inclined therefore to think that in the case of such a publication as above supposed, not only might a jury reasonably find 1 6 B. & C. 462. sect, ii.] Capital & Counties Bank Ltd. v. Henty & Sons. 361 that it was a libel, but that if they did, the Court would think that the plaintiffs had satisfied the onus cast upon them to shew to the satisfac- tion of the Court that it was a libel. Both Thesiger and Cotton, L.JJ., in this case go further, and intimate an opinion that any publication so made that it would come to persons who had no concern at all with the defendants' proceedings, but who might possibly be interested, as customers of the bank, in considering whether the bank was in good credit, would have a tendency to injure the credit of the bank in the opinion of such persons. I have not been able quite to make up my mind on this, and prefer to point out that the question does not arise. I think if the letter had been sent to only one person, and that person was one who was in the habit of sending many such cheques to the defendants, it could not be said to be libellous. It was sent to a great many persons, who were in the habit of sending some, but very few, cheques to the plaintiffs, and the inconvenience which was occasioned to Messrs Henty by having to keep such cheques till Saturday was so slight, that I cannot but view their conduct with moral disapprobation ; but unless some good legal reason can be suggested for holding what they did actionable, the judgment should be affirmed. One point more has to be considered. A publication calculated to convey an actionable imputation is primft facie a libel, the law, as it is technically said, implying malice, or, as I should prefer to say, the law being that the person who so publishes is responsible for the natural consequences of his act. But if the occasion is such that there was either a duty, though, perhaps, only of imperfect obligation, or a right to make the publication, it is said that the occasion rebuts the pre- sumption of malice, but that malice may be proved ; or I should prefer to say that he is not answerable for it, so long as he is acting in compliance with that duty or exercising that right ; and the burthen of proof is on those who allege that he was not so acting. In this case, if any customer of Messrs Henty who had been in the habit of remitting such cheques to Messrs Henty and having them taken on account of his debts, had had such cheques returned to him, that customer would have had good reason to complain that this was done. If, therefore, Messrs Henty had resolved to take no such cheques in future, there was a moral obligation on Messrs Henty either to tell such a one that the cheques would not be taken in future, or when he brought them, to take them and warn him to bring no more; and the occasion was, I think, one that gave rise both to a duty to their customers, and a right in themselves to give the warning, and the occasion was privileged. But I think there was here evidence (I say no more) that Messrs Henty did not send the circular because they had resolved to take no cheques, 362 Select Cases on the Law of Torts. [part ii. but resolved to take no cheques in order that they might send the circular. And if that was found by a jury to be the fact, I think they could not shelter themselves from the consequences of publishing the letter, if it was a libel, by an occasion which they sought. I think, therefore, that the only question is whether there was here evidence from which such facts could be found as, in the opinion of the Court, would satisfy the onus, which, I think, lies on the plaintiffs, to shew that this publication had a libellous tendency. And as I am of opinion that there was not, I think that the judgment should be affirmed. ******* Appeal dismissed. [The publication of Defamation can seldom give a right of action to any one but the person defamed ; as the damage caused to any such third party would seldom be a natural consequence.] ASHLEY v. HARRISON. Nisi Prius. 1793. Peake 256. The declaration stated, that the plaintiff during the time of Lent, 1793, caused to be performed every Wednesday and Friday night, by divers singers and musicians at a certain place of public amusement called Covent Garden Theatre, certain musical performances for the entertainment of the public for certain rewards paid to him for admission into the said place of public amusement by those persons who were desirous of hearing the said musical performances, by means whereof he derived great gains, d. By the laws of England every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence but he is liable to an action, though the damage be nothing ; which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to shew, by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books, and see if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no such excuse can be found or produced, the i 29 Comm. Journ. 689 ; Cobbett, Pari. Hist., vol. 15, pp. 1362 et seq. 2 19 St. Tr. 1153. 24—2 372 Select Cases on the Law of Torts. [part ii. silence of the books is an authority against the defendant, and the plaintiff must have judgment. According to this reasoning, it is now incumbent upon the defendants to shew the law by which this seizure is warranted. If that cannot be done, it is a trespass. Papers are the owner's goods and chattels : they are his dearest property ; and are so far from enduring a, seizure, that they will hardly bear an inspection ; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravati6n of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none ; and therefore it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society. But though it cannot be maintained by any direct law, yet it bears a resemblance, as was urged, to the known case of search and seizure for stolen goods. I answer, that the difference is apparent. In the one, I am per- mitted to seize my own goods, which are placed in the hands of a public officer till the felon's conviction shall entitle me to restitution. In the other, the party's own property is seized before and without conviction, and he has no power to reclaim his goods, even after his innocence is cleared by acquittal. The case of searching for stolen goods crept into the law by imper- ceptible practice. It is the only case of the kind that is to be met with. No less a person than my Lord Coke denied its legality 1 ; and therefore if the two cases resembled each other more than they do, we have no right, without an Act of Parliament, to adopt a new practice in the criminal law, which was never yet allowed from all antiquity. Observe, too, the caution with which the law proceeds in this singular case. — There must be a full charge upon oath of a theft committed. — The owner must swear that the goods are lodged in such a place. — He must attend at the execution • of the warrant, to shew them to the officer, who must see that they answer the description. — And, lastly, the owner must abide the event at his peril : for . if the goods are not found, he is a trespasser ; and the officer being an innocent person, will be always a ready and convenient witness against him 2 . On the contrary, in the case before us nothing is described nor distinguished : no charge is requisite to prove that the party has any criminal papers in his custody : no person present to separate or select : i 4 Inst. 176. 2 See Hawk. P.O., ed. by Leach, Bk. 2, chap. 13, s. 17. sect. in. J Entich v. Oarrington. 373 no person to prove in the owner's behalf the officer's misbehaviour. — To say the truth, he cannot easily misbehave unless he pilfers; for he cannot take more than all. If it should be said that the same law which has with so much circumspection guarded the case of stolen goods from mischief, would likewise in this case protect the subject by adding proper checks ; would require proofs beforehand ; would call upon the servant to stand by and overlook ; would require him to take an exact inventory, and deliver a copy ; my answer is, that all these precautions would have been long since established by law, if the power itself had been legal ; and that the want of them is an undeniable argument against the legality of the thing. What would the Parliament say if the judges should take upon themselves to mould an unlawful power into a convenient authority by new restrictions 1 That would be not judgment but legislation. I come now to the practice since the Revolution, which has been strongly urged, with this emphatical addition : that an usage tolerated from the era of liberty, and continued downwards to this time through the best ages of the constitution, must necessarily have a legal com- mencement. Now, though that pretence can have no place in the question made by this plea, because no such practice is there alleged ; yet I will permit the defendants for the present to borrow a fact from the special verdict, for the sake, of giving it an answer. If the practice began then, it began too late to be law now. If it was more ancient, the Revolution is not to answer for it ; and I could have wished that upon this occasion the Revolution had not been considered as the only basis of our liberty. The Revolution restored this constitution to its first principles. It did no more. It did not enlarge the liberty of the subject, but gave it a better security. It neither widened nor contracted the foundation, but repaired and perhaps added a buttress or two to the fabric ; and if any minister of state has since deviated from the principles at that time recognized, all that I can say is that, so far from being sanctified, they are condemned by the Revolution. With respect to the practice itself, if it goes no higher, every lawyer will tell you it is much too modern to be evidence of the common law ; and if it should be added, that these warrants ought to acquire some strength by the silence of those Courts, which have heard them read so often upon returns without censure or animadversion, I am able to borrow my answer to that pretence from the Court of King's Bench, which lately declared with great unanimity in the Case of General Warrants 1 , that as no objection was taken to them upon the returns, and the matter passed sub silentio, the precedents were of no 1 I.e., Leach v. Money (19 State Trials 1001). 374 Select Cases on the Lav; of Torts. [part ii. weight. I most heartily concur in that opinion ; and the reason is more pertinent here, because the Court had no authority in the present case to determine against the seizure of papers which was not before them ; whereas in the other they might, if they had thought fit, have declared the warrant void, and discharged the prisoner ex officio. This is the first instance I have met with where the ancient immemorable law of the land, in a public matter, was attempted to be proved by the practice of a private office. The names and rights of public magistrates, their power and forms of proceeding as they are settled by law, have been long since written, and are to be found in books and records. Private customs, indeed, are still to be sought from private tradition. But who ever conceived a notion that any part of the public law could be buried in the obscure practice of a particular person 1. To search, seize, and carry away all the papers of the subject upon the first warrant : that such a right should have existed from the time whereof the memory of man runneth not to the contrary, and never yet have found a place in any book of law, is incredible. But if so strange a thing could be supposed, I do not see how we could declare the law upon such evidence. But still it is insisted that there has been a general submission, and no action brought to try the right. I answer, there has been a submission of guilt and poverty to power and the terror of punishment. But it would be strange doctrine to assert that all the people of this land are bound to acknowledge that to be universal law which a few criminal booksellers have been afraid to dispute. [See also Ellis v. Loftus Iron Co., supra, p. 43, Hucklb v. Money, supra, p. 208.] sect, in.] Basely v. Clarkson. 375 [Neither Malice nor Negligence is necessary in Trespass.] BASELY v. CLARKSON. Court of Common Pleas. 1680. 3 Levinz 37. Trespass for breaking a close called a Balk and Hade, and cutting the grass therein and carrying it away. The defendant dis- claimed any title in the plaintiff's close ; but says that he too has a Balk and Hade adjoining that of the plaintiff, and that in mowing his own land he involuntarily and by mistake mowed some of the grass growing upon the plaintiff's land (intending to cut only the grass that grew upon his own land), and carried it away. Also that, before the issuing of the writ, he tendered to the plaintiff 2s. by way of satisfac- tion, and that this was a sufficient amends. Whereon the plaintiff demurs. Judgment was given for the plaintiff, for it appears that the act was a voluntary one ; and the knowledge and intention with which it was done are not traversable, and cannot be ascertained. 376 Select Cases on the Law of Torts. [part ii. [Neither Malice nor Negligence is necessary in Trespass.] [Hence even the benevolent desire to protect another man's property from a Tort does not justify your trespassing into his land.] THE CASE OF TITHES IMPERILLED. Court of Common Pleas. 1507 1 . Y.B. 21 Hen. VII. fo. 27. pi. 5. In an. action of trespass, the defendant put in a plea of justifi- cation ; on the ground that the wheat, to which the action related, had been marked off, for tithes, from the remaining nine-tenths of the crops, and lay there in jeopardy of being destroyed by the beasts which were going about in the field ; and that on that account the defendant took it and carried it away, and took it to a barn belonging to the plaintiff (who was parson of that parish) and put it there inside the barn. But to this plea the parson, as plaintiff, demurred in law. Brudenell. The plea is not good. For when the wheat was severed from the nine-tenths and left in the ground where it grew, it was in a place apart, fit for keeping it in. In which case it is not lawful for anyone to enter and take it ; just as it is not permissible for anyone to take my horse for fear that he may be carried off. And if a man's wife have lost her way, although he does not know where to find her, yet people must not take her, [to bring her] to her house ; unless she be in jeopardy of being lost in the darkness or drowned in the water. And so here, though the wheat was in the midst of the field, yet it was in such a place as was apart and fit for keeping it in ; and therefore, if anyone takes it, there is a good right of action against him. So the plea is not good. Palmes. We have said that the wheat was in danger of being lost, and had we not taken it, would certainly have been lost ; which is a sufficient and reasonable cause to justify our taking it. So if I see my neighbour's chimney on fire, I can justify entering his house to save the things that are therein, and taking what goods I find therein in order to save them. And here, since it is alleged that the goods were in danger of being lost,, and we took them for their safety, for the benefit of the plaintiff, there is good reason that we should be excused herein. So the plea is good. 1 Sir F. Pollock, in his account of this case (Torts, p. 378) shews that this is the true date; and that the Yearbook has placed it nearly a twelvemonth too soon. The correct date is given by Keilway in his report of it ; where, moreover, we learn that the " beasts " were horses. sect, in.] The Case of Tithes Imperilled. 377 Kingsmill, J. Where a man's goods are taken against his will, the taking can only be justified either as being a thing necessary to the commonweal, or else on account of some condition of law. In the first way, as a thing which concerns the commonweal, one may [in case of fire] justify taking goods out of a house to save them, or pulling down the house to save other houses. And so, in time of war, one can justify entering into another man's land to make a bulwark in defence of the king and the realm. These things are justifiable and lawful for maintenance of the commonweal. And in the other way, when they distrain my horse for the rent I owe, it is justifiable ; because the land was let to me with a condition of distress. And so of other conditions. And thus in either of these ways one may justify the taking of a thing against the will of him who is its owner. But here we come under neither of the two ; for we are not in a case of commonweal, and equally little in one of condition. For, as to the plea that the wheat was in danger of being lost, it nevertheless was not in a danger for which the party would not have had his remedy. If I have beasts doing damage [in another man's land] I cannot justify entering it to chase them out ; but must first of all tender him amends. And similarly here, though the defendant took the plaintiff's corn for fear of its being destroyed, still this was not justifiable. For, if it had been destroyed, the plaintiff could have had his remedy against the person responsible for its destruction. And though the defendant put it in the plaintiff's own barn, yet perchance the plaintiff wanted to keep this barn for some other purpose, and so got no advantage by the defendant's act. Consequently such a plea is not good. Rede, C.J. ' So far as regards the defendant's intention, it was a good one. Yet, here, the intention cannot be considered. But in felony it would be. As, where a man is shooting at the butts, and kills some one ; there is no felony, for he had no intention to kill. And so of a tiler on a house-top, who with a tile kills a man un- knowingly; there is no felony. But where some one is shooting at the butts and wounds a man, though it is against his will, yet he shall be reckoned a Trespasser, against his intention. And where ex- ecutors take the goods of some other person along with the goods of their testator, they will be held excusable if an action of trespass be brought against them for this taking. And, by the law, when my sheep are with other sheep and I chase them into a narrow place in order to be able to sever them, I can justify the driving of these others just as much as that of my own sheep. And in these cases there is I'eason for the rule. For, in the former case, the executors 1 Who gave to the University of Cambridge the endowment which maintains the Bede Lecture. 378 Select Cases on the Law of Torts. [part ii. cannot tell at the first glance which goods are their testator's and which are a stranger's. And, in the latter case, the sheep cannot be separated until they are, penned up in a narrow place, and conse- quently the driving of them into one is justifiable. Similarly, where the arrest of a man on suspicion of felony is being justified, the defendant is bound to shew that he had good cause of suspicion ; otherwise he will fail in his justification. Thus a hue and cry is sufficiently good cause ; and if the cry were raised groundlessly, it is the man who raised it that must be punished. Accordingly it is a general rule that there must be some good ground for justification. And thus, in trespass a licence is a good justification, and therefore may be given in evidence under a defendant's plea of Not Guilty ; for it excuses him at the time for the taking or cutting [for which he is being sued]. ... But, in reference 1 to the present case, when the defendant took the wheat — although this was a good act in regard to the damage which a stranger's beasts might have done to it — yet [in law] it is not a good act, nor any manner of justification against the party who had the property in the wheat. For he had his right of action against anyone who destroyed it, if it had in fact been destroyed. It is just as when my beasts are doing damage in another man's land ; I cannot legally enter it to drive them out. And yet it would be a good act to drive them out, so that they should do no further damage. True, the rule is otherwise if some stranger had sent my horses into this person's land where they do harm. In such a case I can justify entering that land to fetch them out ; because the injury they are doing originated in the wrongful act of another person. But here, since the plaintiff could have his remedy if his crops had been destroyed, it was not lawful for the defendant to take them. And it is not like a case where things are in danger of being destroyed by water or fire or the like ; for there the destruction would take place without there being any right of action against anyone for it. So the defendant's plea is not good. Fisher, J., was of the same opinion. And thereon the plaintiff would have obtained his judgment, had it not been that in respect of some other corn which was taken at the same time the defendant had pleaded a different plea, on which plea the plaintiff had joined issue. So the court would not give judgment on the demurrer until this issue had gone to trial, and the damages had been assessed by the jury. [See Maleverer v. Spinke, supra.] sect, in.] The Case of Thorns. 379 [Nor does your desire to recover your chattels, which you have intruded upon another man's land, justify your trespassing into it.~\ THE CASE OF THORNS. Court of Common Pleas. 1466. Y.B. 6 Edw. IV. fo. 7. pi. 18. A man brings an action of trespass for breaking into his close with force and arms and destroying the herbage by trampling it under foot ; alleging a trespass upon six acres. The defendant says Not Guilty as to the trespass in five of the acres. And as to the trespass on the sixth acre, he says that the plaintiff cannot have an action, for the defendant has an acre of land on which a hedge of thorns is growing, and which adjoins the said six acres, and the defendant (at the time of the alleged trespass) comes and cuts the thorns, and against his wish they fell upon the said sixth acre of the plaintiff, and thereupon the defendant enters upon the said acre and takes them up. And that is the trespass on which this action is brought. Hereon they demurred ; and it was well argued ; and was adjourned. And, now, Catesby says— Sir, it has been said that if a man does a thing, even though it be quite lawful, and by that thing wrong and damage is done, though against his will, to someone else, then if the man could in anyway have avoided that damage, lie shall be made to pay for doing this thing. But, Sir, I think otherwise. For, as I understand it, if a man does a lawful act and thereby, against his will, damage happens to someone else, he will not be liable for it. Thus I put the case of my driving my beasts on the high road, and your having an acre of land lying along the road ; if my beasts enter your land and eat your grass and I come forthwith and drive them out of your land— in that case you have no action against me 1 , for it was lawful to drive them out, and their entry upon the land was against my will, so you will have no action against me. Nor can there, any more, be an action in the present case. For the cutting of the thorns was lawful, and the falling of them upon your land was against my will ; and therefore the entry to retake them was good and permissible. And, Sir, I put this case, that if I am cutting my trees, and the boughs fall upon a man and kill him, in that case I shall not be attainted as guilty of felony 2 ; for my cutting of the boughs was permissible and their falling upon the man was against my will. And just so here. i Y. B. 7 Hen. VII. 1. * On such homicide by Misadventure, see Y. B. 2 Hen. IV. 25. 380 Select Oases on the Law of Torts. [part il Fairfax. I hold the contrary. And I say that there is a difference between a man's doing a thing so as to become liable for felony, and doing it so as to become liable for the mere trespass. For in the case which Catesby has put there would be no felony ; on account of felony being of malice aforethought. So that what was done against the man's will was not done with felonious intent. But if someone cuts trees, and the boughs fall on a man and hurt him, in such a case that man would have an action for trespass. And so, Sir, if an archer shoots at a mark, and his bow swerves in his hand, and against his will he kills a man, this, as has been said, is no felony 1 . But if he hurts a man with his archery, this man will have a good action of trespass against him, although archery is lawful and the wrong which the archer did was against his will. And so here. Pigot. I think so, too. And I put the case that I have a mill, and the water that turns my' mill flows through your land and you have sallows or willows growing by the water ; and you cut shoots from them, and, against your will, they fall into the water and block the water, so that I have not sufficient water for my mill. In such a case I shall have an action of trespass. And yet the cutting was lawful, and the falling was against your will. So if a man has a pond in his manor ; and he lets off the water from the pond, in order to take the fishes, and this water floods my land, I shall have a good action 2 against him ; and yet his act was lawful. Yonge. I think otherwise. For where a man has only suffered a damnum absque injuria, there he shall have no action. For if he has suffered no wrong, it is not reasonable that he should recover damages. So was it here when the defendant came into the plaintiff's close to take up the thorns which had fallen into it ; his entry was not tortious. For when he cut them and they fell into the close against his will, then, seeing that the property in them remained in him it was lawful for him to seize them even when off his own land. So, in spite of the plaintiff's having sustained damage thereby, he suffered no tort. Brian 3 . I think the contrary; for, in my opinion, when any man does a. thing, he is bound to do it in such a way that his act shall cause no hurt or harm to others. Thus if, when I am building a house and the timbers are being reared, a piece of timber falls on the house of my neighbour and breaks into it, he will have a good action against me ; and yet the building of my house was lawful, and the timber fell against my will. And so if a man makes an assault upon me and I cannot avoid him, and he wants to beat me, and I in defence of myself raise my stick and strike him and, in raising it, I hurt some 1 22 Liber Assissarum 56. " Y. B. 12 Hen. VIII. 3. 3 [Who is described by Sir Frederick Pollock as " a jurist of real genius."] sect. in. J Tlie Case of Thorns. 381 man who is behind my back, this man will have an action against me 1 . And yet it was lawful for me to raise my stick to defend myself, and it was against my will that I hurt him. And so here. Littleton, J. In my opinion, if a man suffers damage, it is reason- able that he should be compensated. And in my opinion the case which Catesby has put is bad law ; for if your beasts came on my land and ate my grass, then, in spite of your having come forthwith and turned them out, it behoves you to make me amends for what, your beasts have done, whether it were more or less 2 . But if beasts escape into a man's land, his lord cannot distrain on them for his rent ; and similarly if my beasts stray into any lordship, the lord cannot take them for his rent. For, when a lord distrains for his rent, he is to keep the distress until the rent be paid ; and this he cannot do in the aforesaid cases, for if I choose to offer sufficient amends I must have my beasts back. Just so, in an action, for rescuing beasts distrained upon as damage feasant, it is a good plea for the defendant to say that he tendered to the plaintiff sufficient amends. And, Sir, if it were law that he could enter and take the thorns, then, on the same principle, if he cut down a great tree he might come with carts and horses to carry the tree away. But that would not be reasonable at all ; for per- adventure there might be wheat or other crops growing upon the land. So no more will his entry be reasonable in the present case ; since the law is all one for great things and for little. And therefore whatever be the amount of trespass done, it is fitting that amends should be made accordingly. Choke, J. I think just the same. For when the principal thing is not lawful, then the thing which is accessory to it cannot be lawful. Now when he cut the thorns and they fell on my land, that falling was not lawful. Therefore his coming to take them out was not lawful. And if it is said, in reply to this, that they fell into the close against his will, that is no sufficient defence. He must go on to say that he could not do it in any other way, or that he did all that lay in his power to keep them out of the close. And if not, he must pay damages 3 - But, Sir, if his thorns, or e^ven a great tree, had fallen over into his neighbour's land through the force of the wind, then he might 4 go into that land to take them out ; because in such a case it would not be to his own act that the fall was due, but to the wind. [Judgment for plaintiff. 1 [Contrast however the modern rule as exemplified in Brown v. Kendall (supra, p. 146).] 2 Y. B. 22 Hen. VI. 41 ; Y. B. 20 Ed. IV. 10 ; Y. B. 7 Hen. VII. 1. a 27 Liber Assissarum 35 ; Y. B. 40 Ed. III. 6 ; Y. B. 22 Ed. IV. 8 ; Y. B. 13 Hen. VIII. 18. 4 V. B. 21 Hen. VII. 28. 382 Select Cases on the Law of Torts. [part ii. [Even the use of a public highway may constitute a Trespass, if it be used in an unreasonable manner.} HARRISON v. DUKE OF RUTLAND. Court op Appeal. [1893] 1 Q. B. 142, [Action of assault. Motion by plaintiff, and cross-motion by defendant, each asking for judgment or a new trial.] Lopes, L.J. This is a case of great importance. It is an action of trespass to the person brought by the plaintiff against the defendants, claiming damages and an injunction. The defendants, amongst other defences, justified the alleged trespass on the ground that the plaintiff was trespassing upon the soil of the defendant, the Duke of Rutland, for the purpose of interfering with the legal right of shooting belonging to the said Duke, which by his friends and keepers duly authorized in that behalf he was then exercising, and alleging the use of no greater force than was necessary for the purpose of abating such trespass. The defendant, the Duke of Rutland, also counter-claimed against the plaintiff in respect of a trespass by the plaintiff to the soil of the said Duke, and for his interference with the exercise by the said Duke of his legal right of sporting over his said lands, alleging threats to continue and repeat such unlawful interference, and claiming an injunction and damages. Alternatively, the defendants brought into Court the sum of 5s. in satisfaction of all the causes of action of the plaintiff. The plaintiff joined issue on the defendants' defence, and denied the allegations in the counter-claim. The case came on to be tried before the Lord Chief Justice. So far as material, the facts may be stated as follows : At the times in question the Duke of Rutland was lawfully exercising sporting rights over certain moors belonging to him. These moors were in certain parts intersected by certain highways. The soil of such highways, subject only to the easement of passing and repassing which belonged to the public, was vested in the said Duke, he being the owner of the lands on each side adjoining the said highways. Butts were erected, at some places near the said highways, at other places at a distance of 200 yards from the highways, for the purpose of the sportsmen concealing themselves from the grouse which were to be driven towards them. The vision of the grouse is signally acute, and very little will induce them to shy away from the butts and follow a course which would be out of reach of the guns of the sportsmen occupying the butts. The plaintiff, knowing this and believing that he had cause sect, m.] Harrison v. Duke of Rutland. 383 of annoyance with the Duke or with his predecessor in title, placed himself, avowedly and admittedly, on the highway in such a position and so acted as to prevent the grouse from approaching the butts. The plaintiff had done this on former occasions, and had threatened to continue so to act whenever the Duke drove his moors. Some years before the moors had been let to a tenant. During that time the plaintiff, who had been paid by the tenant, had desisted from any interference with the shooting on the moors ; but, so soon as the Duke resumed the shooting on his moors, so soon did the plaintiff renew his interference with the sport. It was an undisputed fact in the case that the plaintiff did not use the soil of the highway as one of the public for passing and repassing, or for the legitimate purpose of travel, but was at the times in question using it for the purpose of interfering with and obstructing the legal right of the Duke to exercise sporting rights over his said moors. There was a conflict of evidence as to the amount of force used by the defendants in their attempts to prevent the plaintiff interfering with the sport. In these circumstances the Lord Chief Justice directed the jury that the plaintiff was not a trespasser, and that therefore what the defendants did could not be justified ; that the defendants had no cause of action on their counter-claim ; and that the only question which they would have to consider was whether 5s. was enough to compensate the plaintiff for the acts of the defendants. The Lord Chief Justice said : " I do not think the plaintiff was a trespasser. I do not think, there- fore, that what was done to him was lawful " : and again : " The trespass is hardly denied, and is attempted to be justified on grqunds that, in my judgment, fail. The trespass, therefore, remains a trespass, not a lawful act. It is an unlawful act. Five shillings has been paid in respect of that unlawful act. In your judgment, is 5s. enough 1 If 5s. is enough, verdict for the defendants. If 5s. is not enough, then verdict for the plaintiff, with such an addition to the 5s. as you think on the whole necessary.'' The jury thereupon found a verdict for the defendants on the claim, thinking 5s. enough, and the Lord Chief Justice ordered judgment to be entered for the defendants on the claim, and for the plaintiff on the counter-claim and pleas justifying the trespass. The result is that, while the defendants succeed on the issue raised as to the 5s. paid into Court, the plaintiff has had entered for him the issues raised by the pleas of justification, and has judg- ment on the counter-claim. This arises from the holding of the Lord Chief Justice that the plaintiff was not, under the circumstances, a trespasser. The plaintiff and defendants have both appealed to the Court, the plaintiff seeking judgment for him on the claim so far as the issue with regard to 5s. being enough to satisfy the claim is concerned, alleging the 5s. to be contemptuous and inadequate; and 384 Select Cases on the Law of Torts. [part ii. the defendants seeking to have judgment entered for them on the pleas justifying the trespass and on the counter-claim. With great deference I am of opinion that the Lord Chief Justice was wrong in directing the jury that on the facts as admitted the plaintiff was not a trespasser. In my opinion, the Lord Chief Justice' ought to have told the jury that the plaintiff, on the admitted facts, was a trespasser, and that the pleas justifying the trespass and the counter-claim must be found for the defendants, and that the only question they had to consider was whether there had been an excess of force used in abating the trespass, and, if so, whether 5s. was enough to compensate the plaintiff for such excess. The Lord Chief Justice ought further to have told the jury that if there was no excess then they must find everything for the defendants ; but if there was an excess, then if 5s. was enough, they ought still to find everything for the defendants ; but if, on the other hand, they thought 5s. was not enough, then they should find for the plaintiff for such sum as in their opinion he was entitled to beyond the 5s. The jury were of opinion that 5s. was enough to cover everything to which the plaintiff was entitled. Their finding on that issue is therefore conclusive, and the verdict and judgment in that respect must stand. But ought the Lord Chief Justice to have told the jury that the plaintiff was not a trespasser ? The interest of the' public in a highway consists solely in the right of passage ; the soil and freehold over which that right of way is exercised is vested in the owner or owners of the adjoining land, who may maintain actions of trespass against persons infringing his or their rights therein ; as, for instance, by permitting cattle to depasture thereon. In Dovaston v. Payne 1 , Buller, J., says : " Whether the plaintiff was a trespasser or not depends on the fact whether he was passing and repassing and using the road as a highway, or whether his cattle were in the road as trespassers." Again, Heath, J., says: "If it be a way, he must shew that he was lawfully using the way ; for the property is in the owner of the soil, subject to an easement for the benefit of the public." In the case of Reg. v. Pratt'', Pratt had been convicted by justices under 1 & 2 Wm. 4, c. 32, s. 30, of committing a trespass by being in the daytime on land in the occupation of one Bowyer, in search of game. On appeal, a case was reserved by the sessions for the opinion of the Court, and the facts appeared to be that Pratt was in the daytime on a public road (the soil of which as well as the land on both sides belonged to Bowyer) carrying a gun and accom- panied by a dog, that Pratt sent the dog into a cover by the roadside which was in the actual occupation of Bowyer, and that a pheasant flew across the road from the cover and was fired at by Pratt, who was 1 2H. Bl. 527. 2 4E. & B. 860. sect, in.] Harrison v. DuRe of Rutland. 385 still standing upon the road. Upon these facts the Court held that the conviction was right, the road being land in the occupation of Bowyer, subject only to the right of way of the public; and the evidence shewed that Pratt was not on the road in the exercise of the right of way, but for another purpose, namely, the search for game, and that thus he was a trespasser. "On these facts," said Lord Campbell, C.J., " I think that the magistrates were perfectly justified in concluding that Pratt was trespassing on land in the occupation of Mr Bowyer in search of game. He was, beyond all controversy, on land the soil and freehold of which was in the owner of the adjoining land, that is, Mr Bowyer. It is true the public had a right of way there ; but subject to that right the soil and every right incident to the ownership of the soil was in Mr Bowyer. The road, therefore, must be con- sidered as Mr Bowyer's land. Then Pratt, being on that land, was undoubtedly a trespasser if he went there, not in exercise of the right of way, but for the purpose of seeking game and that only. If he did go there for that purpose only, he committed the offence named in the Act : he trespassed by being on the land in pursuit of game. The evidence of his being there for that purpose is ample. He waved his hand to the dog ; the dog entered the cover and drove out a pheasant, and Pratt fired at it. The magistrates were fully justified in drawing the conclusion that he went there, not as a passenger on the road, but in search of game." Erie, J., in the same case, says: "There can be no doubt, in fact, that Pratt was on land, and that he was in search of game ; but it is said he could not be a trespasser because it was a highway. But I take it to be clear law that, if in fact a man be on land where the public have a right to pass and repass, not for the purpose of passing and repassing, but for other and different purposes, he is in law a trespasser, like the cattle in Dovaston v. Payne'." Crompton, J., in the same case, says : " I take it to be clear law that if a man use the land, over which there is a right of way, for any purpose lawful or unlawful other than that of passing and repassing, he is a trespasser." I do not think the language used by the learned judges in that case too large or that it in any way imperils the legiti- mate use of highways by the public. The Lord Chief Justice, however, appears to have thought that this decision was founded on the fact that Pratt was committing an offence on the highway. The Lord Chief Justice says — I quote his own words : " As he was using the highway not to pass and repass but to be guilty of a criminal offence, the judges held that, he being on the highway for the purpose of committing that criminal offence, he was none the less doing that criminal offence because he was on the highway ; but they could not take exception and say he had a right to be there as he had for all 1 2 H. Bl. 527. K. 25 386 Select Oases on the Law of Torts. [pakt ii. purposes, and try to make that a defence for being there for a criminal purpose." In my opinion that is not the ground of the decision. The ground of the decision is that Pratt was using the highway for purposes other than those of legitimate travel, and was, therefore, a trespasser on the soil and freehold of the adjoining owner ; he could not have been convicted unless he had been a trespasser. The conclusion which I draw from the authorities is that, if a person uses the soil of the highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and repass at their pleasure for the purpose of legitimate travel, and the use of the soil for any other purpose, whether lawful or unlaw- ful, is an infringement of the rights of the owner of the soil, who has, subject to this easement, precisely the same estate in the soil as he had previously to any easement being acquired by the public. If this is the law, the plaintiff, on the admitted facts, was a trespasser. He was using the soil of the highway, not for the purpose of passing and repassing, but for the purpose, of interfering with the exercise of a legal right by the defendant, the Duke of Rutland. In these circumstances the defendants are entitled to judgment on the pleas of justification, and also on their counter-claim for nominal damages. The plaintiff's appeal will, therefore, be dismissed, and the defendants' appeal be allowed with costs. Sir H. James, on the part of the Duke, does not press for an injunction; if he had I should have thought it ought to be granted ; but he asks for a declaration that the plaintiff, on the facts appearing, was, at the time when he interfered with the legal right of the Duke, a trespasser. This I think he ought to have. An injunction is constantly granted by the Queen's Bench Division for trespasses threatened to be repeated. It is the effect of the Judicature Act and a most wholesome remedy. This action might have been brought in the Court of Chancery, and an injunction on the facts appearing would, in my opinion, have been readily granted ; and under Order xxv., r. 5, there is full power to make a declaration such as we make. ******* [Kay, L.J., concurred; Lord Eshek, M.R., concurred, except as to allowing the judgment to include a declaration in addition to the damages.] » Judgment for defendants. [Editor's Note. The student may read as a supplement to this case the subsequent one of Hickman v. Massey [1900], 1 Q.B. 752 ; where a racing tout was held to have committed a, trespass by spending an hour and a half in walking to and fro upon a particular fifteen yards of a highway, to watch the trials of horses on the land across which the highway ran. Unlike Harrison he neither interfered sect, in.] Harrison v. Duke of Rutland. 387 ■with the owner's use of the land, nor even stood still' on it. "What," it was argued, " if his only object had been to sketch— or to admire— the scenery ? Is it a trespass for people to stand in Fleet Street to see the Lord Mayor's Show pass by? " It was conceded by the Court that the public enjoyment of highways is not now- a-days limited to the mere right of passing and repassing, but includes other reasonable and ordinary acts, such as sitting down to rest, or even to sketch. But, here, the tout's use of it had been (1) excessive in time ; and (2) for a purpose which was "wholly disconnected with the purpose of passage"; a purpose which, indeed, (3) amounted to an interference with the plaintiff's lawful enjoyment of his land 1 — though it involved no act for which the plaintiff could have sued, had the defendant done it on land that was his own.] [And even a co-owner of land may commit Trespass therein, by excluding another co-owner from exercising his rights.] MURRAY, ASH, & KENNEDY v. HALL. Court of Common Pleas. 1849. 7 C.B. 441. This was an action of trespass for breaking and entering the dwelling-house of the plaintiffs, and expelling them therefrom, and seizing and converting their goods. The defendant pleaded, firstly, not guilty ; secondly, as to breaking and entering the dwelling-house, leave and license ; thirdly, that the premises were not the premises of the plaintiffs ; fourthly, as to the goods, leave and license ; fifthly, that the goods were not the goods of the plaintiffs. Issue was joined. The facts that appeared in evidence were as follows. The three plaintiffs and one Hart had jointly become tenants of the premises in question — a room used as a coffee-room by the members of a Temperance Society — to one Hall. On the 23rd of November, 1846, the defendant and Hart forcibly expelled from the premises a person named Adams, who had been placed there by Murray. On the part of th% defendant t it was proved that Hart had previously, on the 5th of November, 1846, surrendered his interest to the defendant by the following document. " Mr W. Hall. "Sir, — The premises I arid my co-partners hold of you, being situated No. 1 1 Stacey Street, St Giles's, I, in the name of the same, give up, as we cannot pay you the rent due, my' co-partners having misapplied the same. , " Yours, &c, "John Hart. " P.S. — I have given the key to Mr G. for you." 25—2 388 Select Cases on the Law of Torts. [part ii. It was then insisted for the defendant that the surrender by Hart inured as, at all events, a surrender of his own interest, and made Hall tenant in common with the three plaintiffs ; and that one tenant in common could not maintain trespass against his companion, even for an actual expulsion, (Cubitt v. Porter'). Mr Justice Maule told the jury that, if the evidence satisfied them that there had been an actual expulsion of the plaintiffs from the premises by the defendant, their verdict ought to be for the plaintiffs. The jury returned a verdict for the plaintiffs ; damages £35. [The defendant afterwards obtained a rule to shew cause why a nonsuit should not be entered ; on the ground that one tenant in common cannot maintain trespass against another, even for an actual expulsion.] yfi vfT 7ft vfc TfC ^ vfc Coltman, J., delivered the judgment of the, Court.... The Court has felt some difficulty on the question, by reason only of the doubts expressed by Littledale, J., in his judgment in Cubitt v. Porter 1 . That learned judge there said that although, if there has been actual ouster by one tenant in common, ejectment will lie at the suit of the other, yet he was not aware that trespass would lie ; for that in trespass the entering is the gist of the action, and the expulsion or ouster is a mere aggravation of the trespass; and that, therefore, if the original entry be lawful, trespass will not lie. It appears, however, to us difficult to understand why trespass should not lie, if ejectment (which includes trespass) may be maintained (as it confessedly may) on an actual ouster. And, as it has been further established, in the case of Goodtitle v. Tombs 2 , that a tenant in common may maintain an action of trespass fbr mesne profits against his companion, it appears to us that there is no real foundation for the doubts suggested. Rule discharged. [Editob's Note. In the case of land, it is possible for two co-owners to enjoy it concurrently, and therefore any attempt by one of them to exercise an exclusive enjoyment may easily constitute a Trespass against the other. But the very nature of a chattel often renders it— as in the case of a book, a deed, a ring — impossible that both co-owners should exercise their rights over it simultaneously. Accord- ingly — " Beati possidentes " — he who has got the chattel may keep it from the other ; and that less fortunate one must simply watch for some opportunity of taking possession of it without using force. But if the possessor were to destroy the article, this would amount to a Trespass.] 1 8 B. & C. 257. 2 3 Wilson 118. sect, in.] Graham v. Peat. 389 [Mere Possession gives the possessor a right of action against all who disturb it without having some better right than his.] GRAHAM v. PEAT. Court of King's Bench. 1801. 1 East 244. Trespass quare clausum fregit. Plea the general issue (and certain special pleas not material to the question). At the trial before Graham, B., at the last assizes at Carlisle, the trespass was proved in fact. But it also appeared that the locus in quo was part of the glebe of the rector of the parish of Workington in Cumberland, which had been demised by the rector to the plaintiff; and that the rector had not been resident within the parish for five years last past, and no sufficient excuse was shewn for his absence. "Whereupon it was objected that the action could not be maintained; the lease being absolutely void by the act of the 13 Eliz. c. 20, which enacts, "that no lease of any benefice or ecclesiastical promotion with cure, or any part thereof, shall endure any longer than while the lessor shall be ordinarily resident and serving the cure of such benefice, without absence above fourscore days in any one year ; but that every such lease immediately upon such absence shall cease and be void." And thereupon the plaintiff was nonsuited. A rule was obtained in Michaelmas term last to shew cause why the nonsuit should not be set aside ; upon the ground that the action was maintainable against a wrong-doer upon the plaintiff's possession alone, without shewing any title. Cockell, Sergt., Park, and Wood, now shewed cause, and insisted that possession was no further sufficient to ground the action, even against strangers, than as it was prima facie evidence of title, and sufficient to warrant a verdict for the plaintiff if nothing appeared to the contrary. But here it did expressly appear by the plaintiff's own case that his possession was wrongful ; for it was a possession in fact against the positive provisions of an act of parliament, without any colour of title even against strangers, (1 Leon. 307). He was not so much as tenant at sufferance ; though it is not certain that even this latter can maintain trespass. It is settled that the plaintiff could not -have maintained an ejectment against a stranger who had evicted him 1 . It appears from Plowd. 546 that there must not only be a possession in fact, of land, to maintain trespass, but the possession must be lawful at the time. And an instance is given : if the king be seised in fee, and a stranger enter upon him claiming title, and continue in possession a year and a day, yet he cannot maintain trespass against a wrong-doer, i Doe d. Crisp v. Barber, 2 Term Eep. 749. 390 Select Cases on the Law of Torts. [pabt ii. And though 5 Com. Dig. 537 says that he may, yet the authority cited for it does not warrant the position and is directly contrary to an adjudged case in 4 Leon. 184. [Lord Kenyon. That goes upon artificial reasoning, that the king cannot be dispossessed by an intruder, and does not apply to other cases.] Suppose there had been' a plea of soil and freehold of the rector, and that the defendant as his servant and by his command entered, &c. ; it being settled that there cannot be a traverse to the command, the plaintiff must either have traversed its being the title of the rector, or have shewn a legal possession con- sistent therewith, as that he had a lease from him. And then it would have been shewn in answer that the lease was void by the statute ; and either way there must have been judgment against the plaintiff. Now it was equally competent to the defendant to avail himself of this upon the general issue. Law, Christian, and Holroyd contra were stopped by the Court. Lord Kenyon, C.J. There is no doubt but that the plaintiff's possession, in this case was sufficient to maintain trespass against a wrong-doer; and if he could not have maintained an ejectment upon such a demise, it is because that is a fictitious remedy founded upon title. ' Any possession is a legal possession against a wrong-doer. Suppose a burglary committed in the dwelling-house of such an one, must it not be laid to be his dwelling-house notwithstanding the defect of his title under the statute [of 13 Eliz. c. 20] ? Rule absolute 1 . [Editor's, Note. The same principle was applied in an American case of Cutts v. Spring (15 Massachusetts 135), where the defendant had cut down some trees in a piece of Government land which the plaintiffs had heen occupying without title for many years. It was held that the plaintiffs' occupation was good as against every one but the State. ] 1 " Whoever is in possession may maintain an action of trespass against a wrong-doer to his possession," Hurker v. Birbeck, 3 Burr. 1563; so Gary v. Holt, 2 Stra. 1238. " Trespass is a possessory action, founded merely on the possession, and it is not at all necessary that the right should come in question " j Lambert v. Stroother, Willes' Bep. 221. sect, in.] Armory v. Delamirie. 391 [The rule applies equally well to Chattels.] ARMORY v. DELAMIRIE. Nisi Prius. 1722. 1 Strange 505. The plaintiff, being a chimney-sweeper's boy, found a jewel, and carried it to the defendant's shop (who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice, who, under a pretence of weighing it, took out the stones, and calling to the master to let him know it came to three-halfpence, the master offered the boy the money, who refused to take it, and insisted to have the thing again ; whereupon the apprentice delivered him back the . socket without the stones. And now in trover against the master these points were ruled : — 1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover. 2. That the action well lay against the master, who gives a credit to his apprentice, and is answerable for his neglect. 3. As to the value of the jewels, several of the trade were ex- amined to prove what a jewel of the finest water that would fit the socket would be worth ; and the Chief Justice directed the jury, that unless the defendant did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages, which they accordingly did. [Editor's Note. In a, very recent case, (an action brought by the bailee of goods against a stranger, for the loss of these goods through his negligence), it was held that a bailee can recover the full value of the goods, whether he be or be not answerable to the bailor for the loss. The bailee however must account to the bailor for his proportion of the amount recovered. The Winkfield, L. B. [1902] P. 42. ] 392 Select Oases on the Law of Torts. [pabt ii. [ What otherwise would be a Trespass will be no tort, if it arise from Inevitable Accident in the course of a lawful and careful, act.] See above, Stanley v. Powell (p. 140), and Brown v. Kendall (p. 146). [Again, a License from the owner will justify what otherwise would be a Trespass.] [Yet such a license is revocable, (unless connected with a grant or given for valuable consideration).] WOOD v. LEADBITTER. Court or Exchequer. 1845. 13 M. & W. 838. [To an action of trespass for assault and false imprisonment, the defendant pleaded that, at the time of the supposed trespass, the plaintiff was in a close of Lord E., and that the defendant, as the servant of Lord E., and by his command, molliter manus imposuit on the plaintiff to remove him from the said close ; which was the trespass complained of. The plaintiff replied that he was in the close by the leave and license of Lord E. ; which was traversed by the rejoinder. The evidence at the trial was that Lord E. was steward of the Doncaster races ; that tickets of admission to, the Grand Stand were issued, with his sanction, and sold for a guinea each, entitling the holders to come into the stand, and the inclosure round it, during the races ; that the plaintiff bought one of the tickets, and was in the inclosure during the races ; that the defendant, by the order of Lord E., desired him to leave it ; and, on his refusing to do so, the defendant, after a reasonable time had elapsed for his quitting it s put him out, using no unnecessary violence, but not returning the guinea. Rolfe, B., directed the jury, that, assuming the ticket to have been sold to the plaintiff under the sanction of Lord Eglintoun, it still was lawful for Lord Eglintoun, without returning the guinea, and without assigning any reason, to order the plaintiff to quit the inclosure, (which, on this record, was admitted to be his property) ; and that, if the jury were satisfied that notice was given to the plaintiff, requiring him to quit the ground, and that, before he was forcibly removed by the defendant, a reasonable time had elapsed during which he might have gone away voluntarily, then the plaintiff was not, at the time of the sect, iil] Wood v. Leadbitter. 393 removal, on the ground by the leave and license of Lord Eglintoun. Upon this direction, the jury found a verdict for the defendant on this issue. A new trial was moved for, on the ground of misdirection.] Aldkeson, B., delivered the judgment of the Court.... That no incorporeal inheritance affecting land can either be created or trans- ferred otherwise than by deed, is a proposition so well established, that it would be mere pedantry to cite authorities in its support. AH such inheritances are said emphatically to lie in grant and not in livery, and to pass by mere delivering of the deed. In all the authorities and text- books on the subject, a deed is always stated or assumed to be indispensably requisite. And although the older authorities speak of incorporeal inheritances, yet there is no doubt but that the principle does not depend on the quality of interest granted or transferred, but on the nature of the subject-matter. A right of common, for instance, which is a profit a prendre, or a right of way, which is an easement (or right in nature of an easement), can- no more be granted or conveyed for life or for years without a deed, than in fee simple. Now, in the present case, the right claimed by the plaintiff is a right, during a portion of each day, for a limited number of days, to pass into and through and to remain in a certain close belonging to Lord Eglintoun ; to go and remain where, if he went and remained, he would, but for the ticket, be" a trespasser. This is a right affecting land at least as obviously and extensively as a right of way over the land, — it is a right of way and" something more : and if we had to decide this case on general principles only, and independently 6f authority, it would appear to us perfectly clear that no such right can be created otherwise than by deed. The plaintiff, however, in this case argues, that he is not driven to claim the right in question strictly as grantee. He contends, that, without any grant from Lord Eglintoun, he had license from him to be in the close in question at the time when he was turned out ; and that such license was, under the circumstances, irrevocable. ...It may be convenient to consider the nature of a license, and what are its legal incidents. And, for this purpose, we cannot do better than refer to Lord C.J. Vaughan's elaborate judgment in the case of Thomas v. Sorrell, as it appears in his Reports. The question there was as to the right of the Crown to dispense with certain statutes regulating the sale of wine, and to license the Vintners' Company to do certain acts notwithstanding those statutes. In the course of his judgment the Chief Justice says 1 , "A dis- pensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without 1 Vaughan, 351. 394 Select Oases on the Law of Torts. [part ii. it had been unlawful. As a license to go beyond the seas, to hunt in a man's park, to come into his house, are only actions which, without license, had been unlawful. But a license to hunt in a-man's park, and carry away the deer killed to his own use ; to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licenses as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down, they are grants. So, to license a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the actions of eating, firing my wood, and warming him, they are licenses ; but it is consequent necessarily to those actions that my property may be destroyed in the meat eaten, and in the wood burnt. So in some cases, by consequent and not directly, but as its effect, a dispensation or license may destroy and alter property." Now, attending to this passage, in conjunction with the title " License '' in Brooke's Abridgment, from which, and particularly from paragraph 15, it appears that a license is in its nature revocable, we have before us the whole principle of the law on this subject. A mere license is revocable : but that which is called a license is often something more than a license ; it often comprises or is connected with a grant ; and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident. It may further be observed that a license under seal (provided it be a mere license) is as revocable as a license by parol ; and, on the other hand, a license by parol, coupled with a grant, is as irrevocable as a license by deed, provided only that the grant is of a nature capable of being made by parol. But where there is a license by parol, coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, there the license is a mere license. It is not an incident to a valid grant; and it is therefore revocable. Thus a license by A. to hunt in his park, whether given by deed or by parol, is revocable ; it merely renders the act of acting lawful, which, without the license, would have been unlawful. If the license be, as put by Chief Justice Vaughan, a license not only to hunt, but also to take away the deer when killed to his own use, this is in truth a grant of the deer, with a license annexed to come on the land. And supposing the grant of the deer to be good, then the license would be irrevocable by the party who had given it ; he would be estopped from defeating his own grant, or act in the nature of a grant. But suppose the case of a parol license to come on my lands, and there to make a watercourse, to flow on the land of the licensee. In such a case there is no valid grant of the watercourse, and the license remains a mere license, and therefore capable of being revoked. On the other hand, if such a license were granted by deed, then the question would sect, in.] Wood v. Leadbitter. 395 be on the construction of the deed, whether it amounted to a grant of the watercourse ; and if it did, then the license would be irrevocable. ... In the cases of Fentiman v. Smith ' and Rex v. Horndon-on-the-Hill 1 , which were before Tayler v. Waters 8 , Lord Ellenborough and the Court of King's Bench expressly recognised the doctrine that a license is no grant, and that it is in its nature necessarily revocable, and the further doctrine that, in order to confer an incorporeal right, an instrument under seal is essential. And in the elaborate judgment of the Court of King's Bench, given by Bayley, J., in Hewlins v. Shipparn*, the necessity of a deed, for creating any incorporeal right affecting land, was ex- pressly recognised, and formed the ground of the decision.. . .The doctrine of Hewlins v. Shipparn has since been recognised and acted upon in Bryan v. Whistler^, Cocker v. Cowper e , and Wallis v. Harrison' ', and it would be impossible for us to adopt the plaintiff's view of the law, without holding all those cases to have been ill decided. It was suggested that, in the present case, a distinction might exist, by reason of the plaintiff's having paid a valuable consideration for the privilege of going on the stand. But this fact makes no difference. Whether it may give the plaintiff a right of action against those from whom he purchased the ticket, or those who authorized its being issued and sold to him, is a point not necessary to be discussed. Any such action would be founded on a breach of contract, and would not be the result of his having acquired by the ticket a right of going upon the stand, in spite of the owner of the soil. It is sufficient, on this point, to say that in several of the cases we have cited, {Hewlins v. Shipparn, for instance, and Bryan v. Whistler), the alleged license had been granted for a valuable consideration, but that was not held to make any difference. "We do not advert to the cases of Winter v. BrockwelP, and Liggins v. Inge 9 , or other cases ranging themselves in the same category, as they were decided on grounds inapplicable to the case now before us, and were, in fact, admitted not to bear upon it. In conclusion, we have only to say, that, (acting upon the doctrine relative to licenses, as we find it laid down by Brooke, by Mr Justice Dodderidge, and by C.J. Vaughan, and sanctioned by Hewlins v. Shipparn, and the other modern cases proceeding on the same principle), we have come to the conclusion that the direction given to the jury at the trial was correct, and that this rule must be discharged. Rule discharged. [Editob's Note. It should be noticed that Wood's ticket was for the general use, along with other spectators, of the stand and inelosure. Messrs Clerk and Lin'dsell, in their useful treatise on Torts (p. 303), suggest that the sale of a ticket i 4 East 107. 2 i M. & Sel. 565. 3 7 Taunton 374. *5B. &C. 222. 5 8B. & C. 288. 6 1 C., M., & B. 418. 7 4 M. &.W. 538. 8 8 East 308. 9 7 Bing. 682. 396 Select Cases on the Law of Torts. [paet ii. for a particular seat at an entertainment might be treated, on the other hand, not as a revocable License but as an irrevocable Demise. Express words to that effect might, indeed, make it a Demise ; but it may be doubted whether, in their absence, any court would put such an interpretation upon the sale, in the ordinary course of affairs, of an ordinary ticket for a " reserved seat." A more fundamental point for the student's attention, when reading Wood v. Leadbitter, is the effect of the Judicature Act in limiting the application of the principle there laid down. If valuable consideration had been given for granting the license, Equity would always have decreed specific performance of the contract to grant it ; (except as against a purchaser, without notice, from the licensor). And as, since the Judicature Act " there is only one Court, and the Equity rules prevail in it," such a license must now be treated in all tribunals as irrevocable. See Walsh v. Lonsdale (L. E. 21 Ch. Div. 9), and Lowe v. Adams (L. B. [1901] 2 Ch. at p. 600). Even in cases where the agreement to grant the license fell within the Statute of Frauds, a part performance might still afford protection to the licensee ; see Ashburner's Principles of Equity, p. 539.] [The revocation of such a License.] HYDE v. GRAHAM. Cocet of Exchequer. 1862. 1 H. & C. 593. [Action of trespass for entering the plaintiff's close, and breaking open a gate, and the lock with which it was fastened. The defendant pleaded, (as a defence on equitable grounds), that a dispute had arisen " between the plaintiff and defendant a,nd certain other persons as to whether there was a public highway over the plaintiff's land ; and thereupon, (in order that the defendant and the plaintiff's solicitor might arrange to come to a definite understanding as to the course to be pursued in deciding or trying the question, and in consideration that the defendant and the other persons, at the request of the plaintiff, then signed the same), it was, (by a memorandum in writing, then signed by the plaintiff, his solicitor, the defendant, and the said other persons), agreed that, without prejudice on either side to the question of right to the said way, it should remain open and un- obstructed for the passage of the defendant and the said other persons, until the plaintiff's solicitor and the defendant should come to a definite understanding as to the course to be pursued in deciding or trying the question then in dispute. The plea then stated that the alleged tres- passes were committed before any understanding had been come to, and consisted only of the use of the way by the defendant ; and that it was because the gate was (wrongfully and contrary to the agreement) sect. in. J Hyde v. Graham. 397 placed across the way and locked, that the defendant broke it open, inasmuch as he could not use the way without so doing. The plea was demurred to, as disclosing no defence either at law or in equity.] * * # # _ * * * Bowdeswell, for defendant. Firstly, the plea is good at law ; for the facts stated in it would be evidence in support of a plea of leave and licence. The agreement amounts to a contract on the part of the plaintiff that, during a certain interval, the way shall remain open and unobstructed for the passage of the defendant. Therefore he was justified in breaking open the gate in order to use the way. [Pollock, C.B. Not until after he had demanded the key. But if the licence has been revoked, what right is left?] The plaintiff cannot avail himself of his breach of contract to sue the defendant as a trespasser. In Burridge v. JVicholetts 1 it was held that a person might break open a lock in order to get possession of his own book. [Channell, B. There the question arose under the County Court Act, 9 & 10 Vict. c. 95.] This is, in effect, an agreement that, if the plaintiff obstructs the way with a locked gate, the defendant may open it. Secondly, the plea affords a good defence on equitable grounds. The fact that the agreement is indefinite in point of time does not invalidate it. It is a sufficient consideration in equity that third persons are parties to it, and it may be supported on the same principle as an agreement of reference. If it had been under seal it would have been irrevocable ; and in equity there is no distinction between instruments under seal and by parol. The plaintiff has acted contrary to conscience and good faith, and on that ground a court of equity would restrain this action by a perpetual injunction. A court of equity would also restrain the action on the ground that it is unjustifiable and vexatious. ******* Bramwell, B. I am of opinion that the plea is bad both as a legal and an equitable defence. Mr Dowdeswell says that it is good as a plea of leave and licence, but it is not in terms so pleaded. Neither does it contain any allegation of leave and licence, for it states that because the gate was wrongfully and contrary to the agreement placed across the way, locked, and fastened, the defendant broke it open. When the defendant found the gate locked, that was a tolerably clear intimation to him that the licence was revoked and the plaintiff did not intend to perform the agreement. It seems to me that the defendant had no right to break open the gate ; and the plea, which professes to justify all the trespasses, being bad in part is bad altogether. Then, as to its being a good equitable plea, the answer has been already given by my lord. There would be difficulty in a court of i 6 H. & N. 383. 398 Select Cases on the Law of Torts. [part n. equity saying, "We will restrain you from revoking your licence, absolutely and without any qualification of any kind." If the de- fendant applied for a specific performance of the agreement, surely a court of equity would say : " You were to come to some arrangement as to the course to be pursued in deciding the disputed right of way ; we will only restrain the plaintiff, from revoking the licence, upon the terms that you forthwith come to that arrangement." I therefore think that a court of equity would not, by injunction, restrain the plaintiff from proceeding with this action. Another difficulty is this — the way is to remain open without prejudice on either side to the question of right to it. Now suppose that, in using the way, some damage is done to the soil, and it is afterwards decided in the mode arranged between the parties that there is no way over the plaintiff's land, would he not be entitled to claim compensation for the damage? But if the defendant succeeded on this plea, the plaintiff never could recover damages for what would be an unjustifiable trespass, because he would be barred by this action in respect of it. It seems to me, not only on the grounds stated, but taking a common sense view of the matter, that the plea is bad. [Pollock, O.B., and Chanmell, B., gave similar judgments.] Judgment for plaintiff. sect, in.] The Six Carpenters' Case. 399 [In some cases the Law itself gives a license to do an act which would otherwise be a Trespass ; {e.g. entering an inn, or levying an execution 1 ).] [But to commit any new Trespass whilst acting under a mere License of Law will revoke the Trespasser's License, and so render him a Trespasser ab initio.] THE SIX CARPENTERS' CASE. Court of Common Pleas. 1610. 8 Coke 146 a. In trespass brought by John Vaux against Thomas Newman, carpenter, and five other carpenters, for breaking his house and for an assault and battery, 1 Sept. 7 Jac, in London, in the parish of St. Giles extra Cripplegate, in the ward of Cripplegate, &c, and upon the new assignment, the plaintiff assigned the trespass in a house called the Queen's Head. The defendants to all the trespass prceter fractionem domus pleaded not guilty ; and a,s to the breaking of the house, said, that the said house, prced' tempore quo, &c, et diu antea et postea, was a common wine tavern of the said John Vaux, with a common sign at the door of the said house fixed, &c, by force whereof the defendants, prced' tempore quo, &c, viz. hord quartd post meridiem, into the said house, the door thereof being open, did enter, and did there buy and drink a quart of wine, and there paid for the same, &c. The plaintiff, by way of replication, did confess that the said house was a common tavern, and that they entered into it, and bought and drank a quart of wine, and paid for it; but further said, that one John Ridding, servant of the said John Vaux, at the request of the said defendants, did there then deliver them another quart of wine, and a pennyworth of bread, amounting to 8d., and then they there did drink the said wine, and eat the bread, and upon request did refuse to pay for the same. Upon which the defendants did demur in law. And the only point in this case was, if the denying to pay for the wine,, or non-payment, which is all one (for every non-payment, upon request, is a denying in law), makes the entry into the tavern tortious. 1. It was resolved that when entry or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio ; but 1 Another class of examples arise under the law of Distress; e.g. for rent, or upon cattle damage feasant. A remarkable but obsolete form of Distress was that which the impecuniosity or extravagance of members of the University once rendered necessary at Cambridge. We find in the Year-Book of 21 Edw. I. (fo. 54) that " The burgesses of Cambridge have, by the King's Charter, a franchise that, when clerks or others are in debt to them, the burgesses may seize the horses or other things that are possessed, within the Liberty of Cambridge, by such debtors." 400 Select Cases on the Law of Torts. [part ii. where an entry, authority, or licence is given by the party, and he abuses it, there lie must be punished for his abuse, but shall not be a trespasser ab initio. And the reason of this difference is, thai in the case of a general authority or licence of law, the law adjudges by the subsequent act, quo animo, or to what intent, he entered ; for acta exteriora indicant interiora secreta. Vide 1 1 H. 4. 75. h. But when the party himself gives an authority or licence to do anything, he cannot, for any subsequent cause, punish that which is done by his own authority or licence. Therefore the law gives authority to enter into a common inn or tavern ; so to the owner of the ground to distrain dainage-feasant ; to him in reversion to see if waste be done ; to the commoner to enter upon the land to see his cattle ; and such like. But if he who enters into the inn or tavern doth a trespass, as if he carries away anything ; or if the owner, for damage-feasant, works or kills the distress ; or if he who enters to see waste break the house, or stays there all night ; or if the commoner cuts down a tree ; in these and the like cases, the law adjudges that he entered for that purpose ; and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio, as it appears in all the said books. So if a purveyor takes my cattle by force of a commission, for the king's house, it is lawful ; but if he sells them in the market, now the first taking is wrongful; and therewith agrees 18 H. 6. 19. b. Et sic de similibus. 2. It was resolved per totam curiam, that not doing cannot make the party, wlvo has authority or licence by the law, a trespasser ab initio, because not doing is no trespass. Therefore if a man takes cattle damage-feasant, and the other offer sufficient amends, and he refuses to re-deliver them, now if he sues a replevin, he shall recover damages only for the detaining of them, and not for the taking, for that was lawful; and therewith agrees F. N. B. 69. g. temp. E. 1. Replevin, 27. 27 E. 3, 88. 45 E. 3. 9. So in the case at bar, for not paying for the wine, the defendants shall not be trespassers, for the denying to pay for it is no trespass, and therefore they cannot be trespassers ab initio; and therewith agrees directly in the point 12 E. 4. 9. b. For there Pigot, Serjeant, puts this very case, if one comes into a tavern to drink, and when he has drunk he goes away, and will not pay the taverner, the taverner shall have an action of trespass against him for his entry. To which Brian, Chief Justice, said, The said case which Pigot has put is not law, for it is no trespass, but the taverner shall have an, action of debt. And, there before, Brown held that if I bring cloth to a tailor, to have a gown made, if the price be not agreed in certain before, how much I shall pay for the making, he shall not have an action of debt against me ; which is meant of a general action of debt. But the tailor in such a case shall have a special action of debt ; scil. that A did put cloth to him to make a gown thereof for sect, in.] The Six Carpenters' Case. 401 the said A, and that A would pay him as much for making, and all necessaries thereto, as he should deserve, and that for making thereof, and all necessaries thereto, he deserves so much, for which he brings his action of debt. In that case, the putting of his cloth to the tailor to be made into a gown, is sufficient evidence to prove the said special contract, for the law implies it : and if the tailor over-values the making, or the necessaries to it, the jury may mitigate it, and the plaintiff shall recover so much as they shall find, and shall be barred for the residue. But if the tailor (as they use) makes a bill, and he himself values the making, and the necessaries thereof, he shall not have an action of debt for his own value, and declare of a retainer of him to make a gown, &c, for so much, unless it is so especially agreed. But in such case he may detain the garment until he is paid, as the hostler may the horse. Vide Br. Distress, 70, and all this was resolved by the court. Vide the Book in 30 Ass. pi. 38, John Matrever's case, it is held by the court that if the lord, or his bailiff comes to distrain, and before the distress the tenant tenders the arrears upon the land, there the distress taken for it is tortious. The same law for damage- feasant, if before the distress he tenders sufficient amends ; and there- with agrees 7 E. 3. 8. b. in the Mr of St Mark's case ; and so is the opinion of Hull to be understood in 13 H. 4. 17. b., which opinion is not well abridged in the title Trespass, 1 80. Note, reader, this difference, that tender upon the land before the distress makes the distress tortious ; tender after the distress and before the impounding, makes the detainer, and not the taking, wrongful. 26 402 Select Cases on the Law of Torts. [part ii. [Becoming a trespasser ab initio.] OXLEY v. WATTS. Court op King's Bench. 1785. 1 Durnford & East 12. This was an action of trespass for taking a horse, tried before Lord Mansfield at the last summer assizes at Maidstone. The defendant, as bailiff of the lord of the manor, justified taking the horse as an estray 1 . Replication that, after the taking mentioned in the declaration, the defendant worked the horse, and so became a trespasser ab initio. JErshine now moved to set aside the verdict which had been obtained by the plaintiff. This should have been an action on the case for the consequential damage, and not an action of trespass ; because the original taking was admitted to be lawful. Per Curiam. The subsequent using is an aggravation of the trespass in taking the horse ; for the using made him a trespasser ab initio. Rule refused. : [Editob's Note. Estrays are valuable animals found wandering at large, the owner being unknown ; see 1 Blaokstone's Commentaries 297.] [The necessities of Self-defence may justify what would otherwise be a Trespass.] See Wright v. Ramscot, supra, p. 158. sect. in. J Blades v. Higgs and another. 403 [■E.g. in the Recaption of goods from one who has taken them wrongfully..] BLADES v. HIGGS and another. Court op Common Pleas. 1861. 10 C.B., N.S. 713. The declaration charged that the defendants assaulted and beat and pushed about the plaintiff, and took from him his goods, that is to say, dead rabbits. The defendants pleaded, amongst other pleas, — thirdly, as to the assaulting, beating, and pushing about the plaintiff, that the plaintiff, (at the said time when, &c), had wrongfully in his possession certain dead rabbits of and belonging to the Marquis of Exeter 1 ; that the said rabbits were then in the possession of the plaintiff without the leave and licence and against the will of the said marquis; and that the plaintiff was about wrongfully and unlawfully to take and carry away the said rabbits and convert the same to his own use ; whereupon the defendants, as the servants of the marquis and by his command, requested the plaintiff to refrain from carrying away and converting the same rabbits, and to quit possession thereof to the defendants as such servants, which the plaintiff refused to do ; and that thereupon the defendants, as the servants of the said marquis and by his command, gently laid their hands upon the plaintiff, and took the said rabbits from him, using no more force than necessary; which were the alleged trespasses in the declaration mentioned, &c. Demurrer and joinder. Beasley, in support of the demurrer. The plea is clearly bad. In order to sustain it, it must be made out that, wherever A's goods are wrongfully in the hands of £, A or his servants may forcibly take them, without shewing that a felony has been committed, or the way in which the goods came to B's possession, or that the defendant was attempting to re-take them on fresh pursuit. To permit this, would be manifestly against one of the first principles of law. It is not alleged that the defendant had wrongfully taken the rabbits. He might have been an innocent bailee, or a purchaser in market overt. [Byles, J. Or an executor.] No precedent is to be found for such a plea : it does not shew that there was any resistance to a lawful demand, or any necessity for an assault. All the precedents are of acts done in the defence of the party's possession of .the goods 2 . Here, 1 [Editor's Note. The poachers, who had snared the rabbits, had sold them to the plaintiff, a game-dealer.] 2 See 2 Cbitty PI. 345, et seq. 26—2 404 Select Cases on the Law of Torts. [part ii. there is no allegation that the Marquis of Exeter ever was in posses- sion of these rabbits. The whole foundation, therefore, of the plea .fails. In Anthony v. Homey, 8 Bingh. 186, 1 M. & Scott, 300, in trespass for entering the plaintiff's close, a plea that certain goods of the defendants' were there, and that they entered to take them, doing no unnecessary damage, was held ill. In giving judgment, Tindal, C.J., there says: "In none of the cases referred to has the plea been allowed, except where the defendant has shewn the circumstances under which his property was placed on the soil of another. Here, the defendant has confined himself to the statement that they were there, without attempting to shew how. To allow such a statement to be a justifica- tion for entering the soil of another, would be opening too wide a door to parties to attempt righting themselves without resorting to law, and would necessarily tend to breach of the peace." A fortiori it must be unlawful to commit an assault for the purpose of getting possession of a man's goods. jit ;!'_ zlf j|l jl& 4L -'"- Ebxe, C. J., now delivered the judgment of the Court : — The declaration in this case was for an assault and battery. The substance of the justification was, that, the plaintiff having wrongfully in his possession rabbits belonging to the defendants (we consider the servants here the same as the master), and being about to carry them away, the defendants requested him to refrain, and, on his refusal, molliter manus imposerunt, and used no more force than was necessary to take the rabbits from him. To this the plaintiff has demurred, and thereby admits that he was doing the wrong, and that the defendants were maintaining the right, as alleged. And he contends that the defendants are not justified in using necessary force, on account of the danger to the public peace : but he adduces no authority to support his contention. The defendants likewise have failed to adduce any case where the justification was supported without an allegation to explain how the plaintiff took the property of the defendant and became the holder thereof. But the principles of law are in our judgment decisive to shew that the plea is good, although that allegation is not made. If the defendants had actual possession of the chattels, and the plaintiff took them from them against their will, it is not disputed that the defendants might justify using the force sufficient to defend their right and re-take the chattels. And we think there is no substantial distinction between that case and the present. For, if the defendants were the owners of the chattels, and entitled to the possession of them, and the plaintiff wrongfully detained them from them after request, the defendants in law would have the possession, and the plaintiff's wrongful detention against the request of the defendants would be the same violation of the right of property as a taking of the chattels out of the actual possession of the owner. sect, in.] Blades v. Higgs and another. 405 It has been decided that the owner of land entitled to the possession may enter thereon and use force sufficient to remove a wrong-doer therefrom. In respect of land, as well as chattels, the wrong-doers have argued that they ought to be allowed to keep what they are wrougfully holding, and that the owner cannot use force to defend his property, but must bring his action, lest the peace should be endangered if force was justified : (see Newton v. Harland, 1 M. & G. 644, 1 Scott N.R. 474). But, in respect of land, that argument has been overruled in Harvey v. Brydges, 14 M. & W. 442. Parke, B., says : " Where a breach of the peace is committed by a freeholder, who, in order to get possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly; even though in so doing a breach of the peace was committed." In our opinion, all that is so said of the right of property in land, applies in principle to a right of property in a chattel, and supports the present justification. If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury instead of redressing it. Judgment for the defendant. [Editor's Note. In a ease analogous to Blades v. Higgs, a man, whose house was being searched under a warrant, asked to see the warrant ; and, on receiving it, put it into his pocket. Lord Tenterden, C.J., ruled that since this man had no right to retain the warrant, the searching officers "had a right to take it from him, and even to coerce his person to obtain possession of it, provided that they used no more violence than was necessary" ; Rex v. Mitton (3 C. & P. 31). The quotation made in Blades v. Higgs, from Parke, B., must not be pressed too far. It is true that a man's forcible entry into his own land, although a crime, is not, in itself, a Tort. But it is now held (Edwick v. Hawhes, L. B. 18 Ch. D. 199) that if an entry be made under such circumstances as render it criminal (under the statutes against Forcible Entries), the person so entering, though not civilly liable for the entry itself, is so liable for any independent wrong (e.g. breaking furniture or fastenings) that was incidental — not to the mere Entry, but — to the Force. In Bolle's Abridgment (Trespass, I. 17) we find — " If a man comes into my close with an iron bar and sledge" [i.e. a sledgehammer] "and there breaks my stones, and afterwards departs and leaves the sledge and bar in my close, in an action of trespass against me for taking them away, I may justify the taking of them and putting them in the close of the plaintiff himself next adjoining, (especially giving notice of it to the plaintiff), inasmuch as they were brought into my close of his own tort. And in such case of tort I am not bound to carry them to the pound, but may well remove the wrong done to myself, by them, by tort of the plaintiff." See Rea v. Sheward (2 M. & W. 426).] 406 Select Cases on the Law of Torts. [part ii. [A trespasser on land may, similarly, be ejected by force ; unless, by acquiescence, he has come to acquire a true Possession.] [See Harrison v. Duke of Rutland, supra, p. 382.] BROWNE v. DAWSON. Court of Queen's Bench. 1840. 12 A. & E. 624. The trustees of a free school drew up rules for the government of the school, prescribing also the terms upon which the master should hold or be dismissed from his office. These were signed by the trustees and by the master, who was already in office ; and were produced by the trustees on the trial of a cause between them and the master (then dismissed), as " Rules agreed upon at a meeting of the trustees, held," jjbL a|£ 3|t 4L Alt A}£ Sir G. Mellish, L.J. I am of the same opinion. I think it is quite clear that the defendant has not got into possession of any portion of real property of the plaintiff so as to make it necessary for the plaintiff to bring an action of ejectment. It is perfectly true that when a system of waterworks has been 1 L. B. 1 Ch. 244. 2 L. E. 9 Eq. 636. 3 1 My. & Cr. 516. sect, in.] Goodson v. Richardson. 413 legally established, and the owners have made their reservoir, and have legally laid their pipes all along the streets through which they are supplying the water, then the law considers the pipes so far part of the realty that the owners are liable to be rated as in possession of a portion of the realty ; and it may be that an ejectment might be brought against them. But in this case the waterworks had not, at the time this bill was filed, been established at all. All that had been done was that the defendant had entered upon the plaintiff's land, had dug a trench, and had put pipes at the bottom of that trench. I doubt extremely whether those pipes had become part of the realty at all. If they had, they would have become the plaintiff's property. But in my opinion there was never any intention to annex them to the soil so as to make them part of the realty ; and I am inclined to think that they remained pure chattels. However that may be, it is not necessary to decide the question, because, in fact, the defendant has committed a trespass. If that had been the only thing done, it would have been right to leave the plaintiff to recover damages by an action at law ; but the defendant was threatening to continue the trespass — threatening to complete his waterworks, and use as his own that which was really part of the plaintiff's property, and to make a profit by it. Then there is this further reason for coming to this Court, namely, that, from the peculiar circumstances of the surface of the road being dedicated as a highway, the plaintiff has not the ordinary remedy which he would have had if the defendant had dug a trench and laid pipes across the plaintiff's field. In this case the plaintiff would have had great diffi- culty in himself removing the pipes. Suppose that a similar trespass was committed on a man's soil while he remained in possession, and there was nothing to prevent him digging it up himself, it would be reasonable enough to leave him to remove what had been wrongly put in the soil, and then to bring an action to recover damages. But in the present case it is extremely doubtful whether he could remove the pipes without rendering, himself subject to being indicted by the highway board ; and in my opinion he is entitled to be relieved from that difficulty. The appeal must be dismissed with costs. 414 Select Cases on the Law of Torts. [part ii. (2) Conversion. [Where an interference with the possession of Goods is such as to manifest an intention of displacing the owner's rights, it constitutes the tort of Conversion.] FOULDES v. WILLOUGHBY. Court op Exchequer. 1841. 8 Meeson & Welsby 540. [Trover for two horses. It appeared at the trial that the defendant was the manager of a ferry from B. to L., and that the plaintiff em- barked on board the defendant's ferry-boat at B., having with him the horses, in question, for the carriage of which he had paid the usual fare. When the defendant came on board, it having been suggested that the _plaintiff had behaved improperly on board, the defendant told the plaintiff he would not carry the horses over the water, and that he must take them on shore. The plaintiff refused to do this, and the defendant took them from the plaintiff and put them on shore, and they were conveyed to an hotel kept by the defendant's brother. The plaintiff remained on board and was conveyed over the water. On the following day the plaintiff sent for the horses, but they were not de- livered up ; a message was however afterwards sent to the plaintiff, that he might have the horses on sending for them and paying for their keep, but that if he did not send for them, they would be sold to pay the expenses. The latter was accordingly done, and this action was brought. The defence set up was, that the plaintiff having mis- conducted himself on board, the horses were put on shore in order to get rid of the plaintiff by inducing him to follow them. The learned Judge, in summing up, told the jury that the defendant, by taking the horses from the plaintiff and turning them out of the vessel, had been guilty of a conversion, unless they thought the plaintiff's conduct justified his removal from the steam-boat, and he had refused to go without his horses. The jury found a verdict for the plaintiff. A motion was made to set aside the verdict on the ground of misdirection.] Watson, for plaintiff. The evidence shewed that which clearly amounted to a conversion, and it was not affected by the circumstance that the plaintiff had the means afterwards, if he had chosen, of ob- taining the horses again. A wrongful removal of a chattel, even for a few yards, amounts in law to a conversion. [Lord Abinger, C.B. According to that argument every trespass is a conversion.] If a man takes and rides another person's horse without his consent, however short a distance, it is in law a conversion. [Alderson, B. In that case sect. in. J Fouldes v. Willoughby. 415 there is a user of the horse. Lord Abinger, C.B. In this case the horses were turned out of the boat by the defendant because the owner refused to take them out, and not with any view to appropriate them to his own use, but to get rid of their owner. Alderson, B. If a man were to remove my carriage a few yards, and then leave it, would he be guilty of a conversion?]... The mere exercise of dominion over a thing is, in law, a conversion of it. What is said by Buller, J., in Syeds v. Hay 1 , is applicable to the present case : " If a person take my horse to ride, and leave him at an inn, that is a conversion ; for though I may have the horse on sending for him, and paying for the keeping of him, yet it brings a charge on me." ******* Lord Abinger, C.B. It is a proposition familiar to all lawyers, that a simple asportation of a chattel, without any intention of making any further use of it, although it may be a sufficient foundation for an action of trespass, is not sufficient to establish a conversion. I had thought that the matter had been fully discussed, and this distinction established, by the numerous cases which have occurred on this subject; but, according to the argument put forward by the plaintiff's counsel to-day, a bare asportavit is a sufficient foundation to support an action of trover. I entirely dissent from this argument ; and therefore I think* that the learned Judge was wrong, in telling the jury that the simple fact of putting these horses on shore by the defendant, amounted to a conversion of them to his own use. In my opinion, he should have added to his direction, that it was for them to consider what was the intention of the defendant in so doing. If the object (and whether rightly or wrongly entertained is immaterial) simply was to induce the plaintiff to go on shore himself, and the defendant, in furtherance of that object, did the act in question, it was not exercising over the horses any right inconsistent with, or adverse to, the rights which the plaintiff had in them. Suppose, instead of the horses, the defendant had put the plaintiff himself on shore, and on being put on shore, the plaintiff had refused to take his horses with him, and the defendant had said he would take them to the other side of the water, and had done so, would that be a conversion? That would, be a much more colourable case of a conversion than the present, because, by separating the man from his property, it might, with some appearance of fairness, be said the party was carrying away the horse's without any justifiable reason for so doing. Then, having conveyed them across the water, and finding neither the owner nor any one else to receive them, what is he to do with them? Suppose, under those circumstances, the defendant lands them, and leaves them on shore, would that amount to a conversion ? The argument of the plaintiff's counsel in this case i 4 T. R. 264. 416 Select Cases on the Law of Torts. [part ii. must go the length of saying that it would. Then, suppose the reply to be, that those circumstances would amount to a conversion, I ask, at what period of *time did the conversion take place? Suppose the plaintiff had immediately followed his horses when they were put on shore, and resumed possession of them, would there be a conversion of them in that case? I apprehend, clearly not. It has been argued, that the mere touching and taking them by the bridle would constitute a conversion, but surely that cannot be : if the plaintiff had immediately gone on shore and. taken possession of them, there could be no con- version. Then the question, whether this were a • conversion or not, cannot depend on the subsequent conduct of the plaintiff in following the horses on shore. Would any man say, that if the facts of this case were, that the plaintiff and defendant had had a controversy as to whether the horses should remain in the boat, and the defendant had said, " If you will not put them on shore, I will do it for you," and in pursuance of that threat, he had taken hold of one of the horses to go ashore with it, an action of trover could be sustained against him? There might, perhaps, in such a case, be ground for maintaining an action of trespass, because the defendant may have had no right to meddle with the horses at all : but it is clear that he did not do so for the purpose of taking them away from the plaintiff, or of exercising any right over them, either for himself or for any other person. The case which has been cited from Strange's Reports, of Busliell v. Miller, seems fully in point. There the plaintiff and defendant, who were porters, had each a stand on the Custom House Quay. The plaintiff placed goods belonging to a third party in such a manner that the defendant could not get to his chest without removing them, which he accordingly did, and forgot to replace them, and the goods were sub- sequently lost. Now suppose trespass to have been brought for that asportation, the defendant, in order to justify the trespass, would plead, that he removed the parcels, as he lawfully might, for the purpose of coming at his own goods ; and the Court there said, that whatever ground there might be for an action of trespass, in not putting the package back in its original place, there was none for trover, inasmuch as the object of the party in removing it was one wholly collateral to any use of the property, and not at all to disturb the plaintiff's rights in or dominion over it. Again, suppose a man puts goods on board of a boat, which the master thinks are too heavy for it, and refuses to carry them, on the ground that it might be dangerous to his vessel to do so, and the owner of the goods says, "If you put my goods on shore, I will go with them," and he does so ; would that amount to a con- version in the master of the vessel, even assuming his judgment as to the weight of the goods to be quite erroneous, and that there really would be no danger whatever in taking them ? In order to constitute sect, in.] Fouldes v. Willoughby. 417 a conversion, it is necessary either that the party taking the goods should intend some use to be made of them, by himself or by those for whom he acts, or that, owing to his act, the goods Hre destroyed or consumed, to the prejudice of the lawful owner. As an instance of the latter branch of this definition, suppose, in the present case, the de- fendant had thrown the horses into the water, whereby they were drowned, that would have amounted to an actual conversion ; or as in the case cited in the course of the argument, of a person throwing a piece of paper into the water ; for, in these cases, the chattel is changed in quality, or destroyed altogether. But it has never yet been held, that the single act of removal of a chattel, independent of any claim over it, either in favour of the party himself or any one else, amounts to a conversion of the chattel. In the present case, therefore, the simple removal of these horses by the defendant, for a purpose wholly unconnected with any the least denial of the right of the plaintiff to the possession and enjoyment of them, is no conversion of the horses. Consequently the rule for a new trial ought to be made absolute Aldeeson, B Why did this defendant turn the horses out of his boat? Because he recognised them as the property of the plaintiff. He may have been a wrong-doer in putting them ashore ; but how is that inconsistent with the general right which the plaintiff has to the use of the horses 1 It clearly is not ; it is a wrongful act done, but only like any common act of trespass, to goods with which the party has no right to meddle. Scratching the panel of a carriage would be a trespass ; but it would be a monstrous thing to say that it would be a ground for an action of trover. # * # * # * * Verdict set aside. [Editok's Note. The modern simplification of Procedure has not altogether removed the importance of distinguishing the tort of Conversion from that of Trespass. The difference may materially affect the measure of Damages : which in Trespass is merely the amount of injury done, but in Conversion is the whole value of (the plaintiff's interest in) the goods. Hence on paying the damages, the defendant will usually become owner of the goods: (see Williams' Personal Property, p. 86). The student will have noticed that Conversion is a tort affecting personalty and not realty. A very recent case illustrating its application in case of the transition of a portion of matter from the one species of property to the other, is that of Hunt v. City of Boston (183 Massachusetts 303). Here the defendants had wrong- fully dug on the plaintiff's land for gravel ; which they then carted away and used, thus " converting" it to their own purposes immediately upon its severance from the freehold. It was held that, instead of suing for the Trespass to the realty, the plaintiff might elect to sue for the Conversion, and so recover the full worth of the gravel, as personal property, after it had been rendered more valuable by having been got up ; cf. Wood v. Morewood (3 Q. B. 440).] 27 418 Select Cases on the Laio of Torts. [part ii. [If a hirer of (foods sells them, he becomes guilty of a Conversion.] COOPER v. WILLOMATT. Court op Common Pleas. 1845. 1 C.B. 672. [Certain household furniture was conveyed by bill of sale to the plaintiff by Parry Savage, in consideration of £100. An agreement was thereupon come to that Savage should retain the use of the furni- ture, paying 6s. a week for the hire of it, and should restore it to Cooper on demand. But Savage, soon afterwards, removed the furni- ture, and sold it to the defendant, a furniture broker, who bought it in the honest belief that it belonged to Savage. The plaintiff claimed it from the defendant, but the latter refused to give it up. At the trial, Erie, J., nonsuited the plaintiff. A motion was made to enter judgment for the plaintiff.] ******* Tindal, C.J. It appears to me that, if the transaction between Cooper and Savage is assumed (as perhaps it may be) to be a demise of the goods to the latter, it is such a demise as might at any time be put an end to at the will of the former. And it seems to me that, if Savage put the goods into the possession of another, meaning to give to that other a larger interest in them than he himself possessed, he must, at all events, be held to have parted with the limited interest he did possess. The demand upon the defendant, therefore, as much put an end to the tenancy of Savage as if the demand had been made upon Savage himself. But, supposing the tenancy not to have been deter- mined, I -cannot get over the authority of Loeschman v. Maohin. There, the hirer of certain pianos had sent them to the defendant, an auctioneer, for sale. In an action against the auctioneer, Abbott, J., ruled that, " if goods be let on hire, although the person who hires them has the possession of them for the special purpose for which they are lent, yet, if he send them to an auctioneer to be sold, he is guilty of a conversion ; and that, if the auctioneer afterwards refuse to deliver them to the owner, unless he will pay a sum of money which he claims, he is also guilty of a conversion." That is a position I am not pre- pared to dispute. I therefore think the rule for entering a verdict for the plaintiff in this case must be made absolute. Rule absolute. [Editor's Note. The same rule would apply to a pledge of hired goods by the hirer. But where a man has received goods (not as a hirer, but) as a pawnee, and he subpledges them, the result is different. He may thereby commit a breach of his contract with the owners who pawned them to him — and who have a right to sect. in. J Cooper v. Willomatt. 419 have them returned immediately that they pay off the debt — yet he does not become guilty of a conversion. For his rights are so much greater than those of a hirer that a pledge by him is not, in itself, a transaction so inconsistent with the remaining rights of the ownership as to amount to a displacement of it. See Donald v. Suckling (L. E., 1 Q. E. 585). The matter will be different, if, on tender- ing their debt, the owners cannot get back the articles they originally pawned.] [Unreasonable refusal to deliver goods, when demanded by the owner, is evidence of a wrongful exercise of acts of ownership ; i.e. of a Conversion.] COBBETT, executor qf Boxall, v. CLUTTON. Nisi Prius. 1826. 2 Carrington & Payne 471. Trover for a box and deeds. Plea — General issue. It appeared that the testatrix, Mrs Boxall, died in the month of August, 1825, and that a box containing deeds and other papers belonging to the testatrix, was at the house of Mr William Clutton, of Hartwood, a relation of the defendant Clutton. The box, with its contents, was sent by him to the office of the defendants to be delivered to the plaintiff as her executor, on the plaintiff's giving a schedule of the deeds contained in the box. It was proved that the plaintiff demanded the box and its contents of the defendants ; but they refused to deliver it up, unless the plaintiff would give them a schedule of its contents. Marryat, for the defendants. The defendants received this box from Mr William Clutton, as his agents ; and they had it delivered to them, on the special trust to deliver it to the plaintiff on his giving an inventory. Now, if they had delivered the box over, against their authority, they would have been doing wrong. A demand and refusal are evidence of a conversion ; but if it appears that the refusal was on a fair ground, that is no conversion. William Clutton was interested in the property, and without an inventory he could have no check on the executor, who might do what he chose with the papers in the box. And further, it is the daily practice, when papers are delivered up, for the party delivering them to take a receipt specifying what papers are delivered up. Abbott, C.J. It is in evidence that Mr William Clutton desired it; but I am of opinion that the defendants had no right to insist upon an inventory before they delivered up the box. The plaintiff, as executor, was entitled to the possession of the papers of the deceased ; and, that being so, he is entitled to recover in this action. Verdict for the plaintiff. [See also Cooper v. Willomatt, supra, p. 418.] 27—2 420 Select Cases on the Law of Torts. [part ii. [But to lose goods, which have been sent to you ♦ unasked for, is not a Conversion.] HOWARD v. HARRIS. Nisi Prius. 1884. Cabab£ & Ellis 253 ; The Times, Feb. 7, 1884. [Action against the late Sir Augustus Harris, manager of Drury Lane Theatre, for conversion of a manuscript play. The plaintiff had written a dramatic version, entitled Claverhouse, of Sir Walter Scott's Old Mortality. He wrote to the defendant, stating that he had written a play, and asking the defendant to assist him in producing it. To this the defendant replied that, if the plaintiff would send to him "the scene, plot, and sketch " of the play, he would look through them. The plaintiff accordingly on the 27th of March, 1882, sent to the defendant the scene, plot, and sketch, and also the play itself. The plaintiff made numerous applications from time to time with reference to the MS. play, and at last in January, 1883, demanded back the play. But the play was not returned, as it could not be found. The plaintiff then brought this action. Edward Clarke, Q.C., for defendant. The scene, plot, and sketch were the only things which the defendant asked for ; and consequently the only things which he was under any duty to return. And in respect of these, he has not made any claim in this action. Cock, for plaintiff. Along with the three things so asked for, the defendant received the MS. of the play. Having so received it, a duty devolved upon him of taking reasonable care of it. Williams, J. There is no case to go to the jury. The plaintiff was requested to send three things. He voluntarily chose to send, in addition, something else which the defendant had never asked for. His so doing cast no duty of any sort or kind upon the defendant, with regard to what was so sent. Judgment for defendant.] [Editor's Note. This case may be of practical interest to many readers, now that some pushing tradesmen are making a practice of sending goods, unasked-for, " on approval." It is well that both sides should realise that the mere loss of articles so sent will not support any action, either for conversion or even for negligence, against the involuntary recipient, A man cannot be made a bailee against his will; cf. Hawkes v. Dunn, (1 Crompton and Jervis 327), and Lethbridge v. Phillips, (2 Starkie 544). Unlike a finder, he has not voluntarily taken on himself the custody of the article. He therefore need not take any care of it ; nor is he even bound to let it remain on his premises, so he may at once throw it away. But his immunity does not extend so far as to justify him in destroying it intentionally, or in appropriating it. Cf. Simmons v. Lillystone, (8 Exch. 442).] sect, in.] Thorogood v. Robinson. 421 [What may not amount to Conversion.] THOROGOOD v. ROBINSON. Coubt of Queen's Bench. 1845. 6 Adolphus & Ellis, N.S. 769. [Trover for lime, flints, and " breeze."] On the trial, before Lord Denman, C.J., at the Middlesex sittings after last Michaelmas term, it was proved for the plaintiff that he was a limeburner, and, in January, 1844, was in possession of some land and of the lime, breeze, &c, in the declaration mentioned, which were lying on the land. The lime had been burnt in kilns on the premises from chalk dug there by the plaintiff. The defendant had recovered judgment in ejectment for the land ; and, on the day mentioned in the declaration, he entered under the writ of possession, and turned two of plaintiff's servants off the premises, who, at the time, were loading a barge there with part of the lime. He refused to let them do any- thing to the kiln tires, or put any more of the lime on the barge. The defendant's evidence shewed that he was entitled to the land as landlord of a person in whose absence the plaintiff had entered without title. The Lord Chief Justice told the jury that it was not every dealing with another person's goods that amounted to a conversion, but only such as deprived the real owner of them ; that under the circumstances it was reasonable that the plaintiff should have applied to the defendant to have the articles which belonged to plaintiff delivered to him again ; but that it was a question for the jury whether the conduct of the defendant was a conversion of the lime and breeze. Verdict for defendant. Knowles now moved for a new trial on the ground that the verdict on both issues was against the evidence. The Lord Chief Justice ought to have told the jury that the facts amounted to a conversion. Any act taking from a party even the temporary possession of his goods is a conversion; Keyworih v. Hill 1 . "A conversion seems to consist in any tortious act by which the defendant deprives the plaintiff of his goods, either wholly or but for a time"; 3 Stark. Ev. 1156 2 . In Baldwin v. Cole 3 " a carpenter sent his servant to work for hire in the Queen's yard ; and having been there some time, when he would go no more, the surveyor of the work would not let him have his tools, pretending a usage to detain tools to enforce workmen to continue until the Queen's work was done. A demand and refusal was proved at one time, and a tender and refusal after. Holt, C.J. The very denial of goods to him i 3 B. & Aid. 685. 2 3rd ed. 1842. 3 6 Mod. 212. See White v. Teal, 12 A. & E. 106, 111. 422 Select Cases on the Law of Torts. [part ii. that has a right to demand them is an actual conversion, .. .for what is a conversion but an assuming upon one's self the property and right of disposing another's ' goods ; and he that takes upon himself to detain another man's goods from him without cause, takes upon himself the right of disposing of them." Lord Denman, C.J....It was a question for the jury whether the conduct of the defendant in turning the plaintiff's servants off the premises, and not letting them take away the lime and breeze, amounted to a conversion or not. I think the jury might fairly find that it did not. The defendant entered the premises with right,' and had a right to turn off the plaintiff's servants. The plaintiff certainly had a right to the goods ; but he should have sent some one with a proper authority to demand and receive them : if the defendant had then refused to deliver them or to permit the plaintiff or his servants to remove them, there would have been a clear conversion. But it does not necessarily result from the facts proved in this case that the defendant was guilty of a conversion. Coleridge, J. Neither the plaintiff nor his servants had any right to be upon the land ; nor was the defendant bound to let them remain there for the purpose of removing the plaintiff's goods. What he was bound to do was, on demand, to let the plaintiff remove the goods, or to remove them himself to some convenient place for the plaintiff. Wightman, J., concurred. Rule refused. sect. in. J Stephens (assignee of bankrupts) v. Elwall. 423 [Even an innocent agent may be liable for a Conversion.] STEPHENS (assignee op bankrupts) v. ELWALL. Court of King's Bench. 1815. 4 M. & S. 259. Trover for goods. Plea, not guilty. At the trial before Le Blanc, J., • at the last Lancaster Assizes the case was this : — The bankrupts, being possessed of the goods in question, sold them after their bankruptcy to one Deane, to be paid for by bills on Heathcote, who had a house of trade in London, and for whom Deane bought the goods. Heathcote was in America, and the defendant was his clerk, and conducted the business of the house. Deane communi- cated to the defendant information of the purchase on the day it was made, and the goods were afterwards delivered to the defendant, and he disposed pf them by sending them to America to Heathcote. No demand was made upon the defendant until nearly two years after the purchase. The learned Judge inclined to think, and so stated to the jury, that if the defendant was acting merely as, the clerk of Heathcote he was not liable; but if he was transacting business for himself, though in the name of another, then he would be liable. The jury found a verdict for the defendant. And upon a rule nisi obtained in the last term for a new trial in order to question the accuracy of the learned Judge's direction in point of law, Perkins v. Smith 1 was cited ; and it was contended that, the defendant being a tort-feasor, no authority that he could derive from his master would excuse him from being liable in this action. Park, who now shewed cause, referred to the report of Perkins v. Smith, in Sayer, 40, and said that the decision went too far, and that it had not been approved of by Lawrence, J., when cited to him on the Western Circuit. And he took this difference, that there the defendant received the goods with knowledge that the bankrupt had absconded and shut up shop. But in this case no demand was made until two years after the purchase ; therefore it would be a great hardship if the defendant were to be liable in respect of a demand, which from the lapse of time it is impossible to comply with. Topping and Richardson, contra, argued that the very assuming to dispose of another man's property, was a conversion, and cited M'Combie v. Bavies 2 in support of that position. And in Potter, Assignee, v. Starkie, Exch. M.T. 1807, the Court held the sheriff liable in trover though he seized, sold, and paid over the money before com- mission issued, and before any notice ; saving this necessarily followed i 1 Wils. 328. 2 6 Bast, 538. 424 Select Cases on the Law of Torts. [past ii. from Cooper v. Chitty\ for it was an unlawful interference with another's goods. Lobd Ellenborough, C.J. The only question is, whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master. But nevertheless his acts may amount to a conversion ; for a person is guilty of a conversion who intermeddles with my property and disposes of it, and it is no answer that he acted under authority from another, who had himself no authority to dispose of it. And the Court is governed by the principle of law, and not by the hardship of any particular case. For what can be more hard than the common case in trespass, where a servant has done some act in assertion of his master's right, that he shall be liable, not only jointly with his master, but if his master cannot satisfy it, for every penny of the whole damage ; and his person also shall be liable for it ; and what is still more, that he shall not recover contribution ? Le Blanc, J. I think the rule of law is very different from what I considered it at the trial. The great struggle made at the trial was, whether the goods were for Heathcote or not; but that makes Ho difference if the defendant converted them. And here was a con- version by him long before the demand. Per Curiam, Rule absolute. [Editor's Note. In extenuation of the harshness of the rule here laid down, an American judge says, very strikingly: — "It is a matter of every-day experience that one cannot always be perfectly secure from loss in his dealings with others ; and the defendant, here, is only in the position of a person who has trusted to the honesty of another, and has been deceived. He undertook to act as agent for one who (it now appears) was a thief; and, relying on his representations, he aided this principal to convert the plaintiff's property into money. It is no greater hardship to require him to pay to the plaintiff the value of this property than it would be to take it away from any innocent vendee who purchased and paid for it. And it is universally held that the purchaser of stolen chattels, no matter how innocent or free from negligence in the matter, acquires no title to such property as against the owner." Per De Haven, J., in Swim v. Wilson, (90 California 126).] 1 1 Burr. 20. sect, in.] Hilbert/ v. Hatton. 425 [Or the principal who ratifies, even innocently, a conversion effected by his agent.] HILBERY v. HATTON. Court of Exchequer. 1864. 2 H. & 0. 822. [Trover for a brig and stores. The plaintiff's ship, having been stranded on the coast of Africa, was unlawfully taken possession of there by a Mr Ward, who sold it to Thompson, the agent of the defendants, merchants at Liverpool. They, on being informed by their agent of the purchase and price, wrote (Feb. 24) : — "We duly received your letter informing us of your having purchased the brig, but you do not say from whom you bought her, nor whether you have the register with her. You had better, for the present, make a hulk of her. From your description of her she is not out of the way in price if she has not sustained much damage." On receiving notice from the plaintiff that the ship had been sold wrongfully, the defendants wrote to this agent in Africa, to do no more repairs to her ; and they refused to accept the bill which he had drawn on them, in favour' of the vendor, for the price of the ship. At the trial, Bramwell, B., left it to the jury to say whether the de- fendants had ratified the act of Thompson in purchasing the ship ; and he told them, that although the defendants did not know that the ship had been unlawfully sold, yet if they ratified the sale they would-be liable. The jury found a verdict for the plaintiff, expressing their opinion that the letter of the 24th of February was a ratification of the act of Thompson.J Cohen moved for a new trial The maxim, "Omnis ratihabitio retrotrahitur et mandato priori sequiparatur,'' has never been applied so as to render a principal liable for a tortious act of his agent of which he had no knowledge. The ratification of an act of an agent, in order to bind the principal, . must be made with full knowledge of all the material facts.... Martin, B.... There is no doubt that Mr Ward was guilty of a con- version by the sale, and Mr Thompson guilty of one by buying and taking possession of the ship. If so, the only question is, did the defendants adopt and ratify his act of buying and taking possession, and it seems to us that there was evidence to go to the jury that he did. Indeed, we think that the letter of the 24th February, in answer to that of Thompson of the 5th January, proves this adoption and ratification, and rendered them responsible for Mr Thompson's acts. 426 Select Cases on the Law of Torts. [past ii. We understand the jury expressed themselves clearly of the same opinion, and we are of opinion there was evidence upon which they might act, which is the only matter we have to decide.... [A sheriff who, in levying execution, sells the wrong person's goods, how- ever innocently, can be sued for a Conversion.] GLASSPOOLE v. Y6UNG. Court of King's Bench. 1829. 9 B. & C. 696. Teoveb against the late sheriff of Surrey and his bailiffs for certain goods and chattels. Plea, the general issue. At the trial before Lord Tenterden, C.J., at the sittings after Trinity term, 1828, it appeared that in 1823 the plaintiff, then a widow, intermarried with one Mearing. The goods in question, at the time of the marriage, were her property. In 1824 a judgment on a warrant of attorney was entered up against Mearing, and a writ of fi. fa. issued, under which the sheriff of Surrey seized the goods in question, in the house where Mearing and the plaintiff lived together as man and wife. A motion to set aside that judgment was made, founded on the joint affidavits of Mearing and the plaintiff, in which she described herself as his wife. The matter was referred to the Master, who directed that the judgment should stand, and thereupon the sheriff sold the goods. The plaintiff afterwards discovered that when she intermarried with Mearing he had another wife living ; of which she informed the defendants, and demanded her goods, which were not restored. For the defendants it was contended that the sheriff was justified in seizing the goods as Mearing's, inasmuch as the plaintiff represented herself to be his wife. Lord Tenterden told the jury, that if the goods were not Mearing's but the plaintiff's, she was entitled to recover, unless something had occurred to deprive her of that right. That if she had lived with Mearing and passed as his wife, knowing at the time that she was not so, perhaps she might not be allowed now to say she was not his wife. And his Lordship desired them to say whether at the time of the execution the plaintiff knew that Mearing had another wife living ; if not, she was entitled to a verdict. The jury found a verdict for the plaintiff for the value of the goods, which considerably exceeded the sum for which they were sold under the execution. The Attorney-General moved for a new trial It is not every inter- meddling with the property of another that amounts to a conversion ; sect. in. J Glasspoole v. Young. 427 the conversion must be wrongful. In the present case, although there was an intermeddling with the property of the plaintiff, the sheriff is in no fault, and it would be extremely hard if he could be made liable in trover, and saddled with payment of the whole value of these goods, which fetched at the sale scarce half the estimated value. Lord Tenterden, C.J. I am of opinion that this rule must be discharged. It certainly may be hard on the sheriff, that he should be held liable in such a case as the present, where no misconduct can be imputed to him or his officers ; and it may be hard on the plaintiff in the former suit, that he should be called upon to refund the money that he has received as the fruits of his judgment. But, if on account of such hardship we were to make this rule absolute, we should break in upon a well-established rule of law, that if by process the sheriff is desired to seize the goods of A, and he takes those of B, he is liable to be sued in trover for them. But it was said that the plaintiff, having seen the goods removed without expressing any dissent, could not recover, and the case of Morgans v. Brydges was cited. But that is very different from the present. An execution is a proceeding in invitum ; and the plaintiff acquiesced, because she did not know that she had power to resist, but afterwards discovered her error. The case then is merely this, that the sheriff by mistake took her goods, sup- posing them to be Mearing's. Under such circumstances, it seems to me that she was entitled to recover in this action the value of the goods found by the jury, and not merely the price for which they were sold. Bayley, J. There was no imposition practised by the plaintiff in this case. At the time of the seizure, both she and the sheriff laboured under a mistake. I think, therefore, that she was entitled to recover the value of her goods which were seized and sold without authority. "Littledale, J., concurred. Parke, J. The rule of law is undoubted, that the sheriff must at his peril seize the goods of the party against whom the writ issues. There was nothing like leave and licence in this case. A case may, perhaps, exist in which a woman would be estopped if the seizure of her goods was made upon her assertion that she was the wife of the person against whom the writ issued; but nothing of that kind occurred in the present case. Rule discharged. [Editor's Note. An instance of the estoppel suggested by Parke, J., may be found in Langford v. Foot, (2 Moore & Scott 349).] 428 Select Cases mi the Law of Torts. [part ii. [.4 person who, after buying goods from a non-owner, even innocently, resells and delivers them, can be sued by the true owner for a Conversion.] \Bivt a Broker, merely negotiating the sale from the non-owner to the buyer, cannot be.~\ HOLLINS v. FOWLER. House op Lords. 1874. L.R. 7 H.L. 757. This was an appeal on a case stated, on which the Court of Queen's Bench had given judgment for Fowlers, the plaintiffs in the action, which judgment had been affirmed in the Exchequer Chamber 1 . Fowler & Co. were merchants at Liverpool. Hollins & Co. carried on the business of cotton brokers there. In December, 1869, Fowler & Co. instructed" their brokers, Messrs Rew, to sell for them thirteen bales of cotton. A person named Hill, a clerk to H. K. Bayley, a cotton broker at Liverpool, proposed a purchase on his mflster's account. Messrs Rew refused to sell unless the name of a responsible person was given as the purchaser. Hill then said that Bayley was buying as broker for Thomas Seddon, of Bolton. The inquiries as to Mr Seddon being quite satisfactory, Messrs Rew forwarded to Fowlers, their principals, a sold note, in these terms : — -"Liverpool, Dec. 18, 1869. Messrs Fowler Brothers. We have this day sold on your account the undermentioned cotton;" Then came the description, " Thirteen bales— American — at 12d., per Minnesota," and the buyer's name was given thus : "Thomas Seddon, per H. K. Bayley." The payment was to be "cash within ten days, less 1£ per cent, discount." A counterpart of this note was sent to Bayley himself. On the same day Bayley sent to Messrs Rew a sampling and delivery order, and the bales were delivered to him, and removed to his warehouse. On the same day, also, Messrs Rew sent to Bayley the following note : " Mr Thomas Seddon, per Messrs H. K. Bayley & Co. Bought from Fowler Brothers, per Rew & Freeman, brokers, 13 bales American cotton, ex Minnesota, at I2d. per lb., subject to the rules and regulations of the Liverpool Cotton Brokers' Association. Payment in cash, within ten days, less discount." On the 23rd of December, H. K. Bayley, being thus in possession of the cotton, offered the same to Francis Hollins (one of the defendants) ; who consented to purchase the thirteen bales at W^d. per pound, and who purchased at the same time twenty-five other bales of cotton from H. K. Bayley on the same terms. Messrs Hollins, under 1 L. E. 7 Q. B. 616. sect, in.] Hollins v. Fowler. 429 the usual form of order, sampled the cotton on the same day. The}' had on that morning received a message from Messrs Micholls, cotton spinners at Stockport (for whom they were in the habit of purchasing cotton), stating that on that day Mr Micholls would be in Liverpool to purchase cotton through the Messrs Hollins ; and those gentlemen had bought the cotton from H. K. Bayley believing it to be of the sort which Messrs Micholls would require. On examining the cotton, Mr Micholls agreed to take it. Messrs Hollins were in the habit of thus buying cotton in the belief that their customers would take it. If any particular customer did not take the cotton thus speculatively pur- chased for him, Messrs Hollins disposed of it to some other customer. In the latter part of the 23rd of December, Bayley received a delivery order in these terms: — "Please deliver the bearer cotton, ex Minnesota, at life?, per lb., bought this day for Micholls «fe Co. Francis Hollins & Co." The thirteen bales were delivered on the following morning to Messrs Hollins, by whom they were at once for- warded to Micholls & Co., at Stockport. Bayley received the price of the cotton from Hollins & Co., which was repaid by Micholls & Co., together with a sum for commission and porterage; the defendants, Messrs Hollins, not obtaining a profit on the cotton, but merely receiving a broker's commission on its purchase. Messrs Fowler, not having received payment for the cotton at the stipulated time (ten days), applied to Mr Seddon, and then learnt that he had never employed H. K. Bayley to purchase cotton for him. Application was then made to Messrs Hollins for the bales of cotton, when the answer given was, " The cotton was bought by one of our spinners, Messrs Micholls & Co., for cash, and has been made into yarn long ago, and as everything is settled up, we regret we cannot render your client any assistance." The action for trover was brought. The cause was heard before Mr Justice Willes, at the Liverpool Spring Assizes, 1870, when the facts above stated having been proved, the learned Judge left two questions to the jury; first, whether the thirteen bales in question had been bought by the defendants as agents in the course of their business as brokers ; and, secondly, whether they dealt with the goods as agents for their principals. Both questions were answered in the affirmative, and Mr Justice "Willes then directed the verdict to be entered for the defendants, reserving leave to the plaintiffs to move to enter the verdict for them. A rule was afterwards obtained for that purpose, and on the 25th of November, 1870, was made absolute. On appeal to the Exchequer Chamber, the Judges were equally divided in opinion, and so the judg- ment of the Court below stood affirmed. This appeal was then brought. The Judges were summoned, and Mr Justice Blackburn, Mr Justice 430 Select Cases on the Law of Torts. [pakt ii. Mellor, Mr Justice Brett, Mr Baron Cleasby, Mr Justice Grove, and Mr Baron Amphlett, attended. The Solicitor-General (Sir John Holker) and Mr Herschell, Q.C., for the plaintiffs in error, defendants in the action : — There was nothing here that really constituted a conversion on the part of Hollins & Co. The principle. that ought to govern a case like the present was fully stated in Fouldes v. Willoughby ' ; and it is this, that a mere wrongful asportation of a chattel does not amount to a con- version, unless the taking or detention of the chattel is with the intent to convert it to the taker's own use or that of some third person. That case was expressly approved by Baron Martin in Burroughes v. Bayne 1 . The defendants were not the purchasers of the cotton — they were mere brokers who purchased for Micholls and Co., whom they charged with broker's commission on the purchase, but not with a profit on the price. Their simple possession of the cotton for the purpose of sending it on to Micholls, did not constitute them the owners of it, any more than would the mere possession of it for the purposes of carriage have consti- tuted a railway company the owner. Something beyond that, namely a conversion to their own use, was necessary to render Messrs Hollins, the defendants, liable in this action. While they were acting in the ordinary discharge of their business as cotton brokers, and were in ignorance of the particular facts of the case — in utter ignorance of the fraud committed by H. K. Bayley— they could not be guilty of a con- version. In Burroughes v. Bayne 3 the acts of the defendant were held to amount to a conversion, but that was because he knew all the real facts of the case, and with that knowledge still retained the billiard table. Here Messrs Hollins had no knowledge to lead them to the inference, or even to the suspicion, that any fraud had been practised on the owner of the cotton, or that the cotton had not been bought and sold in the ordinary way. The general expression, so often referred to, that any appropriation of a chattel for the use of the defendants, or of a third party, amounts to a conversion, must be taken with this qualification, that the party appropriating it must do so with a knowledge of the facts which render his act of appropriation un- lawful. Without that knowledge there can be no such "intent" as spoken of in Fouldes v. Willoughby 1 . The application of a different rule would render liable all persons who, in the ordinary discharge of their regular business, and without any special knowledge of the facts, dealt with persons who might appear to have a perfect title to property, but whose title was for some cause or other, utterly unsuspected by any one else, defective. ******* 1 8 M/ & W. 540 ; supra, p. 416. 2 5 H. & N. at p. 303. 3 5 H. & N. 296. sect, in.] Hollins v. Foioler. 431 Lord Chelmsford.... Upon the argument of the rule, the Judges were unanimously of opinion that the rule to enter the verdict for the plaintiffs ought to be made absolute ; on the ground that the defendants in effect bought as principals, and would have been liable to Bayley as vendees ; and having dealt with the cotton as if the property was in them, by assigning it to Micholls, Lucas & Co., they were liable to the plaintiffs for a conversion on its turning out that no property had passed from the plaintiffs to Bayley. Upon the appeal to the Ex- chequer Chamber, that Court were equally divided, and in this state of things the appeal is brought. In considering the case it is necessary, in the first place, to deter- mine what is the exact effect of the finding by the jury, which some of the Judges thought was binding upon them to regard the defendants as acting in the transaction merely as brokers, in the ordinary mode of dealing by persons in that character. Now there was evidence at the trial (as already stated from the case upon appeal) that not an unusual mode of business with the defendants was to purchase cotton upon the chance of its suiting some of their numerous customers. Therefore the finding of the jury, (that the cotton in question was bought by the defendants as agents, in the course of their business as brokers), does not necessarily mean that they bought, according to the ordinary deal- ings of brokers, for principals, but merely that they bought in their character of brokers, involving in it the proved course of their business, in which they were accustomed to buy as brokers for the purpose not of retaining the goods for themselves, but of keeping them only till they could find a purchaser for them. At the time when the defendants purchased the cotton from Bayley they had no principals, and therefore if Micholls, Lucas & Co. had not afterwards intervened, the appellants alone must have been liable. But if once the liability attached, (which liability would have been to the -true owners of the cotton and not to the fraudulent vendor), the de- fendants could only have been discharged by the acceptance by the owners of Micholls, Lucas & Co. as purchasers, which it is unnecessary to add never took place. The defendants at the time of the sale to them were in the position of agents with an undisclosed principal. Bayley knew they were agents, because they promised to send in the name of their principal in the course of the day ; but if the defendants had been sued before they had named a principal they would have had no defence. The question upon the facts is whether the defendants were guilty of a conversion. There can be no doubt that the property and legal right of possession of the cotton remained in the plaintiffs ; and Bayley, who had fraudulently obtained possession of it, could not give a title to any one to whom he transferred the possession, however ignorant the 432 Select Cases on the Law of Torts. [part ii. transferee might be of the means by which Bayley acquired it. A great deal of argument was directed to the question, What amounts in law to a conversion ? I agree with what was said by Mr Justice Brett in the Court of Exchequer Chamber in this case : " That in all cases where we have to apply legal principles to facts there are found many cases about which there can be no doubt, some being clear for the plaintiff and some clear for the defendant; and that the difficulties arise in doubtful cases on the border line between the two.'' But to my mind the proposition which fits this case is, that any person who, however innocently, obtains possession of the goods of a person who has been fraudulently deprived of them, and disposes of them, whether for his own benefit or that of any other person, is guilty of a conversion. The Judges of the Court of Queen's Bench in their judgment in this case thought that it wis not distinguishable in principle from Hardman & Others v. Booth 1 . In that case the plaintiffs were worsted manufacturers near Manchester. One of the partners, being in London, called at the place of business of a firm of Gandell & Co. for orders. At that time the firm, which had been long established and was well known, consisted only of Thomas Gandell, whose son Edward- Gandell was his clerk and managed the business. On inquiring for Messrs Gandell one of the workmen directed the plaintiff to the counting- house, where he saw Edward Gandell, who led him to believe he was one of the firm of Gandell & Co., and under that belief the plaintiff sent goods to the place of business of Gandell & Co., and invoiced them to Edward Gandell & Co. Edward Gandell, who, unknown to the plaintiffs, carried on business with one Todd, pledged the goods with the defendant Booth' for advances bond fide made to Edward Gandell and Todd, and the defendant afterwards sold the goods under a power of sale. It was held by the Court of Exchequer that the defendant was liable for a conversion, on the ground that there was no contract of sale ; inasmuch as the plaintiffs believed that they were contracting with Gandell & Co. and not with Edward Gandell personally, and Gandell & Co. never authorized Edward Gandell to contract for them, consequently no property passed by the sale ; and the defendant, though ignorant of Gandell and Todd's want of title to the goods, was liable in trover for the amount realized by the sale. ■ I agree with the Court of Queen's Bench that Hardman v. Booth 1 is not to be distinguished from the present case. I may also advert to the case of Stephens (assignees of Spencer and others) v. ElwalV, mentioned by Mr Justice Blackburn, in his opinion delivered to your Lordships in this case. There the bankrupts, after their bankruptcy, sold goods to Deane, to be paid for by bills on 1 1 H. & C. 803. 2 Supra, p. 423. sect, in.] Hollins v. Fowler. 433 Heathcote, for whom Deane bought the goods. Heathcote was in America ; and the defendant. Elwall was his clerk, and conducted the business of his house in London. Deane informed the defendant of the purchase, and the goods being afterwards delivered to him, he sent them to America to Heathcote. This was held to be a conversion by the defendant. Lord Ellenborough said : " The clerk acted under an unavoidable ignorance, and for his master's benefit, when he sent the goods to his master, but nevertheless his acts may amount to a conversion ; for a person is guilty of a conversion who intermeddles with my property and disposes of it, and it is no answer that he acted under the authority of another, who had himself no authority to dispose of it." This case was decided sixty years ago, and I do not find that the authority of it has ever been disputed. I think that the judgments of the Court of Queen's Bench and of the Exchequer Chamber are right, and ought to be affirmed. The Lord Chancellor (Lord Cairns) : — My Lords, in this case, having had the advantage of reading before- hand the opinion of my noble and learned friend who has moved the judgment of your Lordships, and agreeing entirely with that opinion, I do not delay your Lordships by any reference to the facts of the case. It is quite clear that in law the defendants, at the time when they purchased the thirteen bales of cotton, on the 23rd of December, 1869, had no principals, and must themselves have been liable on the con- tract ; and, although we must take it on the finding of the jury that the cotton was bought by the defendants as agents in the course of their business as brokers, that is explained by the statement that they were in the habit of making purchases of cotton without any definite instructions, but believing that the cotton would suit certain purchasers, and trusting to them to take it off their hands. There is no doubt that it was according to this course of their business as brokers that the cotton in question was purchased ; and that the defendants bought it intending to request Micholls & Co. to adopt the contract. But until an agreement was made between Micholls & Co. and the defendants that the former would take the cotton, the defendants were the masters of it ; they might, on the one hand, have done with the cotton what they pleased, and, on the other hand, if Micholls & Co. refused to take the cotton, the defendants alone would have been liable on the contract. In this state of circumstances I agree with what is said by Mr Justice Grove, that the jurors appear to have meant that the ap- pellants never bought intending to hold or to make a profit, but with a view to pass the goods over to Micholls & Co., (or, if Micholls & Co. did not accept them, to some other customer) ; and that therefore in k. 28 434 Select Cases on the Law of Torts. [part ii. one sense they acted as agents to principals, only intending to receive their commission as brokers, and never thinking of retaining the goods or dealing with them as buyers and sellers. But, as Mr Justice Grove continues, " this would leave the question untouched, whether they did not exercise a volition with respect to the dominion over the goods, and whether, although they intended to act, and did act, in one respect, as brokers, not making a profit by resale, but only getting broker's com- mission, they did not intend to act and did not act in relation to the sellers, in a character beyond mere intermediates, and not as mere conduit pipes." In my opinion they did act, in relation to the sellers, in a character beyond that of mere agents ; they exercised a volition in favour of Micholls & Co., the result of which was that they transferred the dominion over and property in the goods to Micholls, in order that Micholls might dispose of them as their own ; and this, as I think, within all the authorities, amounted to a conversion. I therefore agree with the motion of my noble and learned friend. [Editoe's Note. The plaintiffs might, had they preferred it, have sued Micholls & Co. instead ; as that firm too had effected a Conversion of the cotton, by spinning it. The judgments in this case were so important that the student will do well to refer to Sir P. Pollock's comments on them, (Torts, p. 346) ; and to the judgment of the present Master of the Eolls in Consolidated Co. v. Curtis, L. R. [1892] 1 Q. B. 495. The judges differed in their views as to what action had, in fact, been taken by Hollins & Co. But all appear to have been agreed on the general principle that any acts which were such as to amount to an exercise of (apparent) ownership, or to a repudiation of the true owner's title, would constitute a Conversion. In the later case of the Union Credit Bank v. Mersey Docks Board ([1899] 2 Q. B., at p. 216) Bigham, J., says: — "If a thief had given his stolen goods to a carrier to be carried, and the latter (at the end of the journey) had returned the goods to the thief, upon the thief's discharging the lien for the carriage, no action in Trover would lie against the carrier at the suit of the true owner. It would be different if, before the thief repossessed himself of the goods, the true owner were to demand possession. For if he did so, and possession were refused, the carrier- would be guilty of Conversion."] SECT. IV.] 435 SECTION IV. BREACHES OF GENERAL RIGHTS. Chapteb I. — Nuisance. [The continuous disturbance of a Right, in such a manner as to cause inconvenience, constitutes the tort of Nuisance.] [The difference between Public Nuisances and Private ones,] REX v. LLOYD. Nisi Prius. 1803. 4 Espinasse 200 v This was an indictment, for a nuisance, preferred by the Society of Clifford's Inn. The defendant was a tinman. The nuisance complained of by the indictment was that, from the noise made by him in the carrying on his trade, the prosecutors were disturbed in the occupation of their chambers, and prevented from following their lawful professions. It was proved by the prosecutors, who were attorneys, that in carrying on such part of their business as required particular attention (in perusing abstracts, and other necessary parts of their profession), the noises were so considerable that they were prevented from attending to it. It appeared, however, on the cross-examination of the witnesses on the part of the prosecution, that the noise only affected three houses, viz., Nos. 14, 15 and 16 of Clifford's Inn ; and that by shutting the windows the noise was in a great measure prevented. Lord Ellenborough said that upon this evidence the indictment could not be sustained. It was, if anything, a private nuisance. It was confined to the inhabitants of only three numbers of Clifford's Inn ; it did not extend to even the rest of the Society. And it could be avoided by shutting the windows. It was therefore not of sufficient general extent to support an indictment ; and he thought this [species of] indictment had been already carried on far enough. The defendant was acquitted. 28—2 436 Select Gases on the Law of Torts. [part ii. [If a nuisance be Public, it is a crime ; but no civil action can be brought for it, except by someone on whom it has inflicted a special damage.] BENJAMIN v. STORR. Couet op Common Pleas. 1874. L.R. 9 C.P. 400. The cause was tried before Honyman, J., at the sittings for Middlesex in Trinity Term last. The facts were as follows : — The plaintiff was a coffee-house keeper in Rose Street, Oovent Garden. The defendants were auctioneers having sale-rooms in King Street, with a back or warehouse entrance in Rose Street, close adjoining the plaintiff's premises. The plaintiff had occupied his premises since March, 1870. The defendants and their predecessors had carried on their business since 1830, but of late years much more extensively than formerly. The carriage-way of Rose Street was only about eight feet wide ; and when the defendants' vans were there loading or unloading (which was usually from 8.30 a.m. to 7 or 8 p.m. daily), not only was the access to the plaintiff's coffee-house obstructed so as to deter cus- tomers from coming there, but the light was diminished to such an extent as to make it necessary to burn gas nearly all day, and the smell arising from the staleing of the horses was excessively offensive. The consequence of all these accumulated evils was that the takings of the plaintiff's coffee-house were materially lessened. Evidence was tendered to shew that the plaintiff's premises were rendered uncomfortable by the offensive smells arising from the staleing of the horses which were kept constantly standing opposite to the plaintiff's door. This evidence was objected to, as having reference to a damage not specifically alleged in the declaration. The learned judge, however, received it. On the part of the defendants it was proved that the waggons and horses were not kept standing in the street longer than the exigencies of their business required ; and it was submitted that in order to main- tain the action, the plaintiff must shew, not only that the thing com- plained of was a public nuisance (in which case the remedy would be by indictment), but that he had sustained a private and particular injury beyond that suffered by the rest of the public : Ricket v. Metropolitan By. Go. 1 The learned judge left it to the jury to say whether or not the obstruction of the street was greater than was reasonable in point of time and manner, taking into consideration the interests of all parties, and without unnecessary inconvenience ; telling them that they were 1 L. E. 2 H. L. 175. sect, iv.] Benjamin v. Storr. 437 not to consider solely what was convenient for the business of the defendants. The jury returned a verdict for the plaintiff, damages £75; and the learned judge reserved leave to the defendants to move "on the question of the damage being enough to support the action." Torr, Q.G., for defendants. Where the cause of action is compounded of a public nuisance and an alleged private injury, the recent cases shew that there must be some palpable pecuniary damage resulting to the individual from the public nuisance, not merely an inconvenience to (or a loss of) trade, such as being compelled to carry goods by a circuitous and inconvenient way : Hubert v. Groves 1 . The judgment of Brie, C. J., in the Exchequer Chamber, in Picket v. Metropolitan Ry. Go. 2 contains an ex- cellent summary of the earlier authorities. " An action lies," he says, "where the exercise of the right of way by or on behalf of a plaintiff has been obstructed, and a greater damage has been caused to him thereby than is caused to the Queen's subjects in general by obstructing them in the exercise of their right. This position is not disputed : and the following cases exemplify its application. In Iveson v. Moore 3 the plaintiff was prevented by the defendant's obstruction of the highway from using the way for carting coals from his colliery, which coals were deteriorated by the delay. In this case, the law on actions for obstruc- tions of highways is well discussed. In Maynell v. Saltraarsh* the plaintiff was prevented by the defendant's obstruction from carrying his corn, and so the corn became damaged by rain. In Hart v. Basset 5 the plaintiff, a farmer of tithes, was prevented by the defendant's ob- struction from carrying them home ; and several grounds of special damage are suggested by Lord Holt in Iveson v. Moore 3 . In Fineux v. Hovenden" the special damage mentioned as an example is damage caused directly by the obstruction of the plaintiff in the use of the way. In Greasley v. Codling' 1 the plaintiff was prevented by the defendant's obstruction from carrying his coals. In Paine v. Patrick" the plaintiff's damage was not actionable ; and the example of action- able damage is put thus : ' A particular damage, to maintain the action, ought to be direct (and not consequential) ; as, for instance, the loss of his horse, or some corporeal hurt by falling into a trench on the highway.' In Chichester v. Lethbridge" the obstruction was held actionable because the plaintiff was personally opposed by the defendant in an attempt to abate the obstruction and use the way. In Rose v. Miles 1 " the plaintiff was obstructed in his use of the navigable water, and was damaged by being obliged to unload his barge and carry the i 1 Esp. 148. a 5 B. & S. 156 ; 34 L. J. (Q.B.) 257, 259. s Ld. Baym. 486. 4 1 Keb. 847. 5 T. Jones, 156. 6 Cro. Eliz. 664. 7 2 Bing. 263. 8 Carth. 191, 194. » Willes, 71. i» 4 M. & S. 101. 438 Select Gases on the Law of Torts. [part ii. goods overland. In all these cases the plaintiff was exercising his right of way, and the defendant obstructed that exercise, and caused par- ticular damage thereby directly and immediately to the plaintiff." To give a right of action, therefore, the plaintiff must have sustained a substantial injury other than that which is the natural result of the alleged nuisance to any one else : he must be damaged, not to a greater extent merely, but in a different manner. In Winterbottom, v. Lord Derby 1 , which was an action for obstructing a public way, the plaintiff proved no damage peculiar to himself beyond being delayed on several occasions in passing along it, and being obliged, in common with every one else who attempted to use it, either to pursue his journey by a less direct road or to remove the obstruction ; and he was held not entitled to maintain the action Brett, J. This action is founded upon alleged wrongful acts by the defendants, viz. the unreasonable use of a highway. — unreasonable to such an extent as to amount to a nuisance. That alone would not give the plaintiff a right of action ; but the plaintiff goes on to allege in his declaration that the nuisance complained of is of such a kind as to cause him a particular injury other than and beyond that suffered by the rest of the public, and therefore he claims damages against the defendants. The first point discussed was whether it was necessary that the plaintiff should shew something more than an injury to his business, an actual injury to his property ; and cases decided under the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18) were cited. In this case I think the action is maintainable without shewing injury to property. In the class of cases referred to, the action is brought to recover compensation for lands taken or injuriously affected; and there, of course, injury to property must be shewn, and not merely injury to the trade of the occupier. Those cases, therefore, do not at all affect the present. Before the passing of the Lands Clauses Consolidation Act, by the common law of England, a person guilty of a public nuisance might be indicted, and, if injury resulted to a private individual, other and greater than that which was common to all the Queen's subjects, the person injured had his remedy by action. The cases referred to upon this subject shew that there are three things which the plaintiff must substantiate, beyond the existence of the mere public nuisance, before he can be entitled to recover. In the first place, he must shew a particular injury to himself beyond that which is suffered by the rest of the public. It is not enough for him to shew that he suffers the same inconvenience in the use of the highway as other people do, (if the alleged nuisance be the obstruction of a highway). The case of Hubert v. Groves 2 seems to me to prove that proposition. There, the plaintiff's business was injured by the obstruction of a high- 1 L. E. 2 Ex. 316. 2 1 Esp. 148. sect, iv.] Benjamin v. Storr. 439 way, but no greater injury resulted to him therefrom than to any one else, and therefore it was held that the action would not lie. Winter- bottom v. Lord Derby 1 was decided upon the same ground ; the plaintiff failed because he was unable to shew that he had sustained any injury other and different from that which was common to all the rest of the public. Other cases shew that this injury to the individual must be direct, and not a mere consequential injury; as, where one way is obstructed, but another (though possibly a less convenient one) is left open, in such a case the private and particular injury has been held not to be sufficiently direct to give a cause of action. Thirdly, the injury must be shewn to be of a substantial character, not fleeting or evanescent. If these propositions be correct, in order to entitle a person to maintain an action for damage caused by that which is a public nuisance, the damage must be particular, direct, and substantial. The question then is, whether the plaintiff here has brought himself within the rule so laid down. The evidence on the part of the plaintiff shewed that from the too long standing of horses and waggons of the defendants in the highway opposite his house, the free passage of light and air to his premises was obstructed, and the plaintiff was in consequence obliged to burn gas nearly all day, and so to incur expense. I think that brings the case within all the requirements I have pointed out ; it was a particular, a direct, and a substantial damage. As to the bad smell, that also was a particular injury to the plaintiff, a direct, and a substantial one. So, if by reason of the access to his premises being obstructed for an unreasonable time and in an unreasonable manner, the plaintiff's customers were prevented from coming to his coffee-shop, and he suffered a material diminution of trade, that might be a particular, a direct, and a substantial damage. Rule discharged. 1 L. E. 2 Ex. 316. 440 Select Oases on the Law of Torts. [part ii. [A manufacturing process that causes visible injury to a neighbour's property is an actionable Nuisance.] ST HELEN'S SMELTING CO. v. TIPPING. House op Lords. 1865. 11 H.L.O. 642. [This was an action brought by the plaintiff to recover, from the defendants, damages for injuries done to his trees and crops by the gases from their copper-smelting works.] ******* On the part of the defendants, evidence was called to shew that the whole neighbourhood was studded with manufactories and tall chimneys ; that there were some alkali works close by the defendants' works ; that the smoke from one was quite as injurious as the smoke from the other ; that the smoke of both sometimes united ; and that it was impossible to say to which of the two any particular injury was attributable. The fact that the defendants' works existed before the plaintiff bought the property was also relied on. Mellor, J., told the jury that an actionable injury was one producing sensible discomfort; that every man (unless enjoying rights obtained by prescription or agreement), was bound to use his own property in such a manner as not to injure the property of his neighbours ; that there was no pre- scriptive right in this case. That the law did not regard trifling in- conveniences ; that everything must be looked at from a reasonable point of view ; and, therefore, in an action for nuisance to property, arising from noxious vapours, the injury to be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it. That when the jurors came to consider the facts, all the circumstances (including those of time and locality) ought to be taken into consideration ; and that with respect to the latter it was clear that in counties where great works had been erected and carried on, persons must not stand on their extreme rights and bring actions in respect of every matter of annoyance ; for if so, the business of the whole country would be seriously interfered with. The defendants' counsel submitted that the three questions which ought to be left to the jury were, "whether it was a necessary trade, whether the place was a suitable place for such a trade, and whether it was carried on in a reasonable manner.'' The learned judge did not put the questions in this form, but did ask the jury (1) whether the enjoyment of the plaintiff's property was sensibly diminished, and the answer was in the affirmative ; (2) whether the business there carried on was an ordinary Business for smelting copper, and the answer was, sect, iv.] St Helen's Smelting Co. v. Tipping. 441 "We consider it an ordinary business, and conducted in a proper manner, in as good a manner as possible." But to the question whether the jurors thought that it was carried on in a proper place, the answer was, "We do not." The verdict was therefore entered for the plaintiff. A motion was made for a new trial on the ground of mis- direction, and the case was carried to the Exchequer Chamber, where the judgment was affirmed 1 .... [The judges were summoned, and after the argument, the Lord Chancellor asked them whether the directions given by the learned judge to the jury were correct? They unanimously answered that those directions were correct, and were such as they had given in similar cases for the last twenty years.] Lord Westbdry, L.C. In matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, — namely, personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, — whether that may or may not be denominated a nuisance must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce and also for the enjoyment of property and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that occupation is a material injury to properly, then there unquestion- ably arises a very different consideration. In a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to cir- cumstances the immediate result of which is sensible injury to the value of the property. Now, in the present case it appears that the plaintiff purchased a very valuable estate, which lies within a mile and a half from certain 1 4 Best & Smith 616. 442 Select Oases on the Law of Torts. [part ii. large smelting works. What the occupation of these copper-smelting premises was anterior to the year 1860 does not clearly appear. The plaintiff became the proprietor of an estate of great value in the month of June, 1860. In the month of September, 1860, very extensive smelting operations began on the property of the defendants, in their works at St Helen's. Of the effect of the vapours exhaling from those works Upon the plaintiff's property, and the injury done to his trees and shrubs, there is abundance of evidence. The jurors have found the existence of the injury; and the only ground upon which your lordships are asked to set aside that verdict is that the whole neighbourhood where these copper-smelting works were carried on is a neighbourhood more or less devoted to manufacturing purposes of a similar kind, and, therefore, it is said that inasmuch as this copper smelting is carried on in what the appellants contend is a fit place, it may be carried on with impunity, although the result may be the utter destruction, or the very considerable diminution, of the value of the plaintiff's property. My lords, I apprehend that that is not the meaning of the word "suitable," or the meaning of the word " convenient," which has been used as applicable to the subject. The word " suitable " unquestionably cannot carry with it this consequence, that a trade may be carried on in a particular locality, the consequence of which trade may be injury and destruction to the neighbouring property. Of course, my lords, I except cases where any prescriptive right has been acquired by a lengthened user of the place Lord Cranworth I cannot do better than adopt the language of Mr Justice Mellor — " Persons using a lime kiln, or other works which emit noxious vapours, may not do an actionable injury to another; and any place where such an operation is carried on so that it does occasion an actionable injury to another, is not, in the meaning of the law, a ' convenient ' place." ******* Appeal dismissed. [Editor's Note. Commenting on the foregoing case, in Salvin v. North Brancepeth Coal Company (L. E. 9 Ch. App. 705), James, L.J., explained what is meant by the "sensible" or "visible" or "substantial" damage that must be shewn in oases of this class. He added, "It amounts to this, that although when you once establish the fact of actual substantial damage it is quite right and legitimate to have recourse to scientific evidence upon the question of the causes to which that damage is to be referred, yet if you are obliged to start with scientific evidence (such as the micro- scope of the naturalist or the tests of the chemist) for the purpose of establishing the damage itself, that evidence will not suffice. There must be actual damage capable of being shewn by a plain witness to a plain common-juryman. The damage must be substantial ; and it must be, in my view, actual, that is to say, the Court has no right whatever, in dealing with questions of this kind, to have regard to contingent, prospective, or remote damage. I would illustrate this by analogy. The law does not take notice of the imperceptible accretions to a river bank, or to sect, iv.] St Helen's Smelting Co. v. Tipping. 443 the sea shore, although after the lapse of years they become perfectly measurable and ascertainable; for if in the course of nature the thing itself is so imper- ceptible, so slow, so gradual, as that it requires a great lapse of time before the results are made palpable to the ordinary senses of mankind, the law disregards that kind of imperceptible operation. So, if it were made out that every minute a millionth of a grain of poison were absorbed by a tree, or a millionth of a grain of dust deposited upon a tree, that would not do, although after the lapse of a million minutes the grain of poison or the grain of dust could be easily detected. It would never have done, as it seems to me, for this Court, in the reign of Henry VI., to have interfered with the further uses and extension of sea coal in London because it had been ascertained to their satisfaction, or predicted to their satisfaction, that by the reign of Queen Victoria roses, both white and red, would have ceased to blow in the Temple. If some picturesque haven opens its arms to invite the commerce of the world, it is not for this Court to forbid the embrace, although the fruit of it should be the sights, and sounds, and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their loved solitudes. " With respect to this particular property before us, I observe that the defendants have established themselves on a peninsula which comes far into the very heart of the ornamental and picturesque grounds of the plaintiff. If, instead of erecting coke ovens at that spot, they had been minded, as apparently some persons in the neighbourhood on the other side had been, to import ironstone and erect smelting furnaces, forges and mills, and had filled the whole of the peninsula with a mining and manufacturing village, with beer-shops and pigstyes and dog-kennels, with pigs, dogs and children, which would have utterly destroyed the beauty and amenity of the plaintiff's grounds, this Court could not in my judgment have interfered. A man to whom Providence has given an estate under which there are veins of coal worth perhaps hundreds or thousands of pounds per acre, must take the gift with the consequence and concomitants of the mineral wealth in which he is a participant."] 444 Select Cases on the Law of Torts. [part ii. [Unreasonable use of a Highway is a Nuisance.] REX v. JONES. Nisi Prius. 1812. 3 Campbell 230. This was an indictment for depositing, hewing, and sawing logs of wood in St John Street. It appeared that the defendant occupies a small timber-yard close by the spot in question, and that from - the narrowness of the street, and the construction of his own premises, he had in several instances necessarily deposited long sticks of timber in the street ; and had them sawed into shorter pieces there, before they could be carried into his yard. Marryat, as his counsel, contended that he had a right to do so, as it was necessary to the carrying on of his business ; and that it could not occasion more inconvenience to the public than draymen taking hogsheads of beer from their drays and letting them down into the cellar of a publican. Lord Ellenborough. If an unreasonable time is occupied in the operation of delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or waggon may be un- loaded at a gateway ; but this must be done with promptness. So as to the repairing of a house; the public must submit to the inconvenience occasioned necessarily in repairing the house ; but if this inconvenience is prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The rule of law upon this subject is much neglected, and great advantages would arise from a strict and steady application of it. I cannot bring myself to doubt of the guilt of the present defendant. He is not to eke out the inconvenience of his own premises by taking in the public highway into his timber-yard ; and if the street be narrow, he must remove to a more commodious situation for carrying on his business. Guilty. [Editor's Note. On the previous day, in a somewhat similar ease of Bex v. Gross (3 Campbell 224), in which it was held an indictable offence for stage coaches to stand for an unreasonable time in the public highway near Charing Cross, plying for hire, Lord Ellenborough said, " No one can make a stable-yard of the King's highway." He pointed out that thus the undue lingering of the guests' carriages outside a West End house, where a ball was being given, might constitute a criminal nuisance. In Rex v. Garlile (6 C. & P. at p. 646) will be found mooted in argument the cognate question whether proceedings for a Nuisance could have been taken against Mr Very, the Regent Street confectioner, for having amongst his shopwomen one so beautiful that a crowd of over three hundred persons used daily to assemble round the windows of the shop and stand there to watch her. Police constables were obliged to be in constant attendance from day to day, to check the crowd, until it was more effectually dealt with by the dismissal of the lady.] sect, iv.] Att-Gen. v. Brighton & Hove Go-op. Supply Ass. 445 [E.g., the unreasonable use of a Highway in unloading carts.] ATTORNEY-GENERAL v. BRIGHTON & HOVE CO-OPERATIVE SUPPLY ASSOCIATION. Court op Appeal. L. R. [1900] 1 Ch. 276. Appeal against a decision of Kekewich, J. The action was brought by the Attorney-General (at the relation of James Pack) and by James Pack, as plaintiffs. The defendants carried on their business, which was that of a co-opera- tive store, in premises situate in and abutting upon Lansdowne Street, in the urban district of Hove, adjoining Brighton, Sussex. The street was a public highway. It was rather less than twenty feet in width. The plaintiff James Pack carried on the business of a lodging-house keeper in a house situate in the same street. The defendants for the purposes of their business employed a number of vans, which were loaded with goods and unloaded in front of their premises. The plaintiffs alleged that, for the purpose of so loading and unloading, the vans were drawn up close to the footway abutting on the defendants' premises throughout the day, and were kept in that position for a con- siderable time, and that there was almost continually throughout the day an accumulation of vans loading and unloading at the same time. In the course of loading and unloading the defendants carried over, and deposited on, the footway parcels and heavy packages. By the un- reasonable and excessive user to which the defendants put the roadway and the footway, and the obstruction thereby arising, they caused a serious nuisance to the persons residing in Lansdowne Street, and to all members of the public who had occasion to pass along it.... [Kekewich, J., found, on the evidence that the defendants took up half the highway for practically the whole of the day. He granted an injunction against the nuisance. The defendants appealed.] Warrnington, Q.C., for defendants.... Access to premises abutting on a highway for the purpose of loading and unloading goods is a legitimate user of a highway, and the occupier of such premises is entitled to use the highway for that purpose so long as he does not improperly interfere with the rights of his neighbours or the general public. The public right of passing and repassing along the highway is subject to this rioht of the owner or occupier of premises abutting on it : Bex v. Russell ' ; Attorney-General v. Sheffield Gas Consumers Co. 2 ; Original Hartlepool Collieries Co. v. Gibb s ; Rex v. Cross 4 ; Rex v. Jones*. The evidence i (1805) 6 Bast, 427. 2 (1853) 3 D. M. & G. 304, 339. 3 (1877) 5 Ch. D. 713, 721. " (1812) 3 Camp. 224 ; see p. 444 n., supra. 5 (1812) 3 Camp. 230 ; supra, p. 444. 446 Select Cases on the Law of Torts. [part ii. shews that the defendants' vans give way when any one wishes to pass along the street. The plaintiffs' witnesses say that, if there were only one van loading or unloading at one time, the obstruction would be equally objectionable. The principle is the same whether the Attorney- General or a private individual is the plaintiff in the action. The evidence shews that the general traffic through the street is but small. The right of loading and unloading goods at premises abutting on a highway is not affected by the circumstance that the street is a narrow one. A large commercial association, such as that of the defendants, which carries on a business equal' in amount to that of several ordinary tradesmen, must surely be entitled to load and unload as many vans as are necessary for the carrying on of their business, provided that they do this as quickly as is possible. This is a legitimate user of the street. There are many streets in the City of London so narrow that, if only one van were loading or unloading, there would not be room for any other vehicle to pass. The defendants are merely carrying on their business in a reasonable way, and keeping their vans stopping opposite their premises for a reasonable purpose and for a reasonable time ; and there is no ground for the injunction. Lindley, M.R It appears to me that, looking only at the carrying on of the defendants' business, what they are doing is perfectly reason- able. They have a large business ; there is a great deal of loading and unloading to be done ; they have a number of vans, and each cart is loaded and unloaded with fair despatch. No complaint is made about that. We have, therefore, to consider what is the consequence of the defendants' reasonable exercise of their right coming into conflict with the right of the public to the use of the highway. Now, I take the law to be that which was laid down, and I believe with perfect correct- ness, in Rex v. Russell'. The facts there were not exactly the same as here, but the passage which I am about to read appears to me to express in better language than I could employ what the law is, and it has the great advantage of having stood the test of nearly a hundred years of criticism. There the Court said : " It should be fully under- stood that the defendant could not legally carry on any part of his business in the public street to the annoyance of the public. That the primary object of the street was for the free passage of the public, and anything which impeded that free passage, without necessity, was a nuisance. That if the nature of the defendant's business were such as to require the loading and unloading of so many more of his wagons than could conveniently be contained within his own private premises, he must either enlarge his premises, or remove his business to some more convenient spot." I take that to be the law on the subject. What does it mean 1 It comes, in substance, to this — that in a case of 1 6 East, 427, 430. sect, iv.] Att.-Gen. v. Brighton & How Go-op. Supply Ass. 447 doubt or difficulty, the private reasonable right of a householder to carry on his business must yield to the public right of user of the street. If the public right of user is, in fact, so obstructed that it cannot be used to the extent which the law requires, then the private right must give way ; and it is no answer to say that the defendants can go on using this street in a way which is reasonable, looking at their interests alone. It is urged that it is difficult to draw the line. I admit that it is extremely difficult. It may be said that, if a cart stands opposite a grocer's door for five minutes to take up goods, it is obstructing the street, and, of course, it is doing so to a certain extent. But in such a case it would be ridiculous to say that there was an indictable or an actionable nuisance, or a ground for an injunction. It is always a question of degree. It may be asked, What is the difference between one cart and two, and so on? You cannot draw the line in that way. Nothing is more common in life than to be unable to draw the line between two things. Who can draw the line between plants and animals ? And yet, who has any difficulty in saying that an oak-tree is a plant and not an animal ? When, however, we look at the facts of the present case, there is clearly such an obstruction as to block up the street so much and for so long that people avoid it rather than face the inconvenience of going along it ; and that, to my mind, is utterly un- justifiable. Vaughan Williams, L.J....The truth is that before you ca.n answer the question, Was a particular user necessary or reasonable? you must always take into consideration all the facts of the case. If you are dealing with a narrow street — a single-carriage street — obviously it may be necessary to block up such a street much more than it can ever be necessary with a wide roadway. Again, if a railway company or the occupier of business premises have a yard in which they can load and discharge goods, that, I think, would be one of the circumstances which might be taken into consideration for the purpose of shewing that it was wholly unreasonable and unnecessary for them to obstruct the highway by loading or discharging their wagons at the kerb-side of the street. Again, one of the circumstances to be taken into con- sideration would be if a man had a business so large that the aggregate of the occasions upon which he might lawfully use the highway would substantially deprive the rest of the public of the use of the highway in the daytime. No one, I think, could doubt that that would be an unlawful obstruction ; and not the less so because the unreasonableness of the proceeding is only demonstrated by shewing the effect upon the public of the number of occasions upon which he used the highway for his purposes. . . . Eomee, L. J.... Whether the user by a tradesman of a highway for such purposes is reasonable or unreasonable is a question of degree — a 448 Select Cases on the Law of Torts. [part ii. question of fact to be determined in each particular case. It does not follow that because the user is necessary or useful for the purpose of carrying on the business it must of necessity be held to be a reasonable user. For example, suppose a man had established a very large busi- ness, requiring the use of an enormous number of vans, and his premises bordered on a very narrow street, it might well be that in order to carry on his business he would require to keep the highway exclusively for himself and his wagons the whole day long, so as not to allow any one else to come up or down the street. In such a case as that I should say that his user of the highway would not be a reasonable user, even though it might be necessary for his business. It would practically amount to an appropriation of the highway to himself for the purposes of his business Injunction affirmed. [The mere Diminution of ancient Lights does not necessarily constitute a Tort.] BACK v. STACEY. Norfolk Assizes. 1826. 2 C. & P. 465. This was an issue directed by the, Lord Chancellor to try, first, whether the ancient lights of the plaintiff in his dwelling-house in the city of Norwich had been illegally obstructed by a certain building of the defendant. And, secondly, (if the first issue should be found in the affirmative), what damage the plaintiff had sustained in respect of the injury. A great many witnesses, including several surveyors of eminence, were examined on both sides ; and it was evident, that the quantity of light previously enjoyed by the plaintiff, had been diminished by the building in question. Under these circumstances, it was contended for the plaintiff that he was at all events entitled to a verdict on the first issue, any obstruction of ancient lights being wrongful and illegal. Best, C.J., told the jury, (who had viewed the premises), that they were to judge rather from their own ocular observation, than from the testimony of any witnesses, however respectable, of the degree of diminution which the plaintiff's ancient lights had undergone. It was not sufficient, to constitute an illegal obstruction, that the plaintiff had, in fact, less light than before ; nor that his warehouse, (the part of his house principally affected), could not be used for all the purposes to sect, iv.] Back v. Staceyi 449 which it might otherwise have been applied. In order to give a right of action, and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business (that of a grocer) on the premises, as beneficially as he had formerly done. His Lordship added, that it might be difficult to draw the line, but the jury must distinguish between a partial inconvenience and! a real injury to the plaintiff in the enjoyment of the premises. The jury found for the defendant on both issues^ [Editor's Note. This case— along with that of Parker v. Smith (5 C. & P. 538) — received in 1904 the emphatic approval of Lord Macnaghten, in his judgment in Colls v. Some and Colonial Stores Ld., as " probably the most satisfactory state- ment of the rule as to ancient lights."] [The nature of the statutory right to Light.] KELK v. PEARSON. Court of Appeal in Chancery. 1871. L.R. 6 Oh. App. 809. G. Kelk, the plaintiff in this case, was the owner and occupier of a leasehold house called Ness Cottage, situate at Notting Hill, and built soon after the year 1829. The principal windows of the plaintiff's house were to the north ; and the plaintiff's house had a garden to the north, bounded on the east by a wall six feet high. To the east of the plaintiff's house and garden was open garden ground. The defendants, in September, 1870, began to build, on the garden ground to the east of the plaintiff's house, a row of houses ; one of which was oblique to the east side of the plaintiff's house, almost touching it at one end, and would, when finished, shew a dead wall about forty feet high, being higher than the roof of the plaintiff's house. The plaintiff, as soon as the ground was laid out for building, wrote to complain to the defendants, who answered that they should not affect the adjoining property. Much correspondence passed, and the defendants began to build. On the 5th of October, 1870, the plaintiff filed his bill to restrain the defendants from building, and from allowing the buildings to remain, so as to interfere with the access of light and air to the plaintiff's house. The defendants, however, proceeded with their build- ing and completed the side of their house. There was contradictory evidence as to the amount of interference. The plaintiff and his family deposed that a scullery was made quite dark, that the light to the kitchen and dining-room was materially diminished, and that the principal bedrooms were made dark, gloomy and uncomfortable. The defendants' witnesses deposed that the rooms k. 29 450 Select Cases on the Lam of Torts. [part ii. in the plaintiff's house were low and naturally badly lighted, all facing to the north ; but that, having the garden open, they had still such an amount of exposed sky area as was seldom seen in the suburbs of London, and that the light was not substantially or perceptibly inter- fered with. The Vice-Chancellor Bacon granted an injunction, and the de- fendants appealed. ******* Sir W. M. James. This bill is based upon the power which is possessed by every man who has by sufficiently long use acquired a right to the access of light and air, to ask this Court, in a sufficiently grave case, to prevent any new building being made which will obstruct that light and air. On the part of the plaintiff it was argued before us that this was an absolute right — that now, under the statute 2 & 3 Will. 4, c. 71, he had an absolute and indefeasible right, by Way of property, to the whole amount of light and air which came thr&ugh the windows into his house; and that he could maintain an action at law or a suit in equity upon that absolute legal right ; and the only question as to the effect or extent of his right would be with regard to the discretion of this Court in considering whether it was a case for damages, or to be inter- fered with by way of injunction. Now I am of opinion that the statute has in no degree whatever altered the pre-existing law as to the nature and extent of this right. The nature and extent of the right before that statute was to have that amount of light through the windows of a house which was sufficient, according to the ordinary notions of mankind, for the comfortable use and enjoyment of that house as a dwelling-house, if it were a dwelling- house, or for the beneficial use and occupation of the house, if it were a warehouse, a shop, or other place of business. That was the extent of the easement — a right to prevent your neighbour from building upon his land so as to obstruct the access of sufficient light and air, to such an extent as to render the house substantially less comfortable and enjoyable. Since the statute, as before the statute, it resolves itself simply into the same question, a question of degree ; which would be for a jury, if this were an action at law, to determine, but which it is for us, as judges of fact as well as law, to determine for ourselves as best we may, when we are determining it in Chancery. That being the law which really appears to me to have been laid down in all the cases since the Act — whatever expressions may be found in one or the other of them comparatively enlarging or exagge- rating it — that being the law, we have to apply it to this case. The plaintiff says : " I have a house which did enjoy a considerable amount sect, iv.] Kelk v. Pearson. 451 of light to several of the rooms before the defendants erected this building. That light is now substantially and materially diminished and affected, so as substantially and materially to affect my comfort as an inhabitant at that house." [His Lordship then said that with regard to the plaintiff's bedroom, which might be taken as a test room, (being an important part of the dwelling-house), those who lived in the house stated that it was formerly a light and cheerful room, and that the light had been taken from it to such an extent as to make it not only less light, but to make it substantially gloomy and uncomfortable ; and the scientific witnesses agreed with them in that statement. There had been also scientific evidence on the other side, and the evidence of the surveyor appointed by the Court.] I am bound to say that, as a question of fact, the evidence to my mind on behalf of the plaintiff predominates far over the evidence, such as it is, on the part of the defendants ; and that there is in this case a material diminution of light, and such a material diminution of light as substantially to affect the comfort of the residents in the house. With regard to the interference of this Court, I am not at all prepared to say that a good deal of what is said in Clarke v. Clark 1 is not very good sound sense, which we may have occasion to apply : that is to say, if there be the right interfered with so as to give a ground for an action at law, and an action at law which could be repeated, I think it is very fit for this Court, taking into consideration all the sur- rounding circumstances, to consider whether the interference of the Court will be productive of more or less inconvenience to the parties. It may be that we should interfere more readily in a case of this kind than if it had been a case of a street in London, where a person was employing his house for city purposes. But in this case I cannot help noticing that to the defendants it is the mere loss of a piece of building- land, the site of one house, which they will have to convert into a garden or keep as a piece of pasture-land, instead of making it the site of a house ; whereas on the part of the plaintiff it is a very serious deprivation of the comfort of his house, and a very serious diminution of the lettable value of his house as a residence. That being so, I have no hesitation in saying that I think it is a case in which the legal right ought to be enforced by the equitable remedy, and that this Court ought to interfere and grant an injunc- tion • and there must now be a mandatory order to restore that which now exists in the shape of a brick wall, or building of bricks and mortar, to the height at which it stood before the building was commenced. [Mellish, L.J., delivered judgment to a similar effect.] i L. E. 1 Oh. 16. 29—2 452 Select Cases on the Law of Torts. [pakt ii. [To obstruct an Ancient Light does not constitute a Tort unless there be so great a diminution of light as to amount to a Nuisance.] COLLS v. HOME AND COLONIAL STORES, LD. House op Lords. L.R. [1904] A.C. 179. [Mb Colls, a builder, entered into a contract to erect a building 42 feet high, on a site in Worship Street, Einsbury, which had pre- viously been occupied by buildings under 20 feet high. This site was opposite to a portion of a large block of buildings occupied by the Home and Colonial Stores, Limited. The ground-floor of this portion consists of a very long room which, though it extends backwards some fifty feet from its Worship Street front, is nevertheless lighted only from that front. It consequently requires much more light than a room whose length is in the ordinary proportion to its frontage. It is occupied as an office, and accommodates so many as about ninety of the company's clerks. An action was brought by the company to restrain the erection of Mr Colls' new building. Joyce, J., refused an injunction (83 Law Times 759) ; holding that the evidence shewed that after the erection of the building- the company's premises would still have sufficient light for all ordinary business purposes. This judgment was reversed by the Court of Appeal ; who held that, though light enough for ordinary purposes would be left, the diminution of light would be sufficiently "sub- stantial " to be an actionable wrong. " It seems to us impossible to hold that the company will not suffer ' real damage ' if they have to consume more electric light than hitherto"; (L.R. [1902] 1 Ch. 302). From this judgment Mr Colls appealed to the House of Lords. The appeal was twice argued ; and judgment was delivered on May 2, 1904.] Lord Halsbury, L.C....The question may be stated, very simply, thus : — After an enjoyment of light for twenty years, would the owner of the tenement be entitled to all the light, without any diminu- tion whatsoever, at the end of such a period ? My Lords, if that were the law it would be very far-reaching in its consequences. The application of it to its strict logical conclusion would render it almost impossible for towns to grow, and would formidably restrict the rights of people to utilize their own land. Strictly applied, it would un- doubtedly prevent many buildings which have hitherto been admitted to be too far removed from others to be actionable. If the broad proposition which underlies the judgment of the Court of Appeal be true, it is not a question of 45 degrees, but any appreciable diminution sect, iv.] Colls v. Home and Colonial Stores, Ld. 453 of light which has been enjoyed (that is to say, has existed uninter- ruptedly) for 20 years constitutes a right of action, and gives to the pro- prietor of a tenement that has had this enjoyment a right to prevent his neighbour's building on his own land. My Lords, I do not think this is the law. The argument seems to me to rest upon a false analogy, as though the access to and enjoyment of light constituted a sort of proprietary right in the light itself. Light, like air, is the common property of all, or, to speak more accurately, it is the common right of all to enjoy it, but it is the exclusive property of none.... The statute [the Prescription Act, 2 & 3 Wm. 4, c. 71] on which reliance is placed in this case illustrates the danger of attempting to put a principle of law into the iron framework of a statute. The statute, literally construed, by the use of the words " the light " would mean all the light which for 20 years has existed in the sur- roundings of the tenement which has enjoyed it. Yet, singularly enough, there has been a complete uniformity of decision upon the construction of the statute that it has made no difference in the right conferred, but is only concerned with the mode of proof. ...Lord Hardwicke long ago, in 1752, [Fishmongers' Company v. East India Company 1 ), laid down what I believe to be the law to-day. "It is not sufficient," he said, "to say that it will alter the plaintiff's light ; for then no vacant piece of ground could be built on in the city ; and here there will be 17 ft. distance. The law says it must be so near as to be a nuisance. "...I am prepared to hold that the test given by Lord Hardwicke is the true one ; and I do not think a better example could be found than the present case to shew to what extravagant results the other theory leads. The owner of a tenement on one side of a street 40 ft. wide seeks to restrain his opposite neighbour from erecting a room which, when erected, will not then be of the same height as the house belonging to the complaining neighbour. And the only plausible ground on which the complaint rests is that on the ground-floor he has a room not built in the ordinary way of rooms in an ordinary dwelling- house, but built so that one long room goes through the whole width of the house to a back wall and has, however, no window at the back or sides, and was, therefore, at the back of it, too dark for some purposes, without the use of artificial light, even before the building on the other side of the street was erected. I think that no tribunal ought to find as a fact that the building is a nuisance ; and altogether apart from the inappropriateness of the remedy by injunction, I am of opinion that the plaintiff has no cause of action against the defendant. The test of the right is, I think, whether the obstruction complained of is a nuisance. And the value of the test [is that it] makes the amount of right acquired depend upon the surroundings, and circum- 1 1 Dickens 165. 454 Select Cases on the Law of Torts. [pabt ii. stances of light coming from other sources, as well as the question of the proximity of the premises complained of. What may be called the uncertainty of the test may also be described as its elasticity. A dweller in towns cannot expect to have as pure air, (as free from smoke, smell, and noise) as if he lived in the country and distant from other dwellings ; and yet an excess of smoke, smell, and noise may give a cause of action. But in each of such cases it becomes a question of degree ; a question whether it amounts to a nuisance which will give a right of action. My Lords, I have not thought it necessary to enter into a discussion of the authorities, because I think it has been most carefully and accurately done by Wright, J., in Warren v. Brown 1 . Lord MACNAGHTEN....The reported cases on questions of light in recent times are not altogether consistent. There seem to be two divergent views, neither of which, I think, is absolutely accurate. The extreme view on one side is that the right which is acquired by so- called statutory prescription is a right to a continuance of the whole (or substantially the whole) quantity of light which has come to the windows during a period of twenty years.... The extreme view on the other side is that the right is limited to a sufficient quantity of light for ordinary purposes. ...In some cases an injunction is necessary; for instance, if the injury cannot fairly be compensated by money ; if the defendant has acted in a high-handed manner ; if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to bhe plaintiff and as a warning to others. But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protec- tion of ancient lights to be used as a means of extorting money Lord Da vet. ...What is the true nature and extent, in English law, of the easement of light ? The numerous decisions on this subject are not infrequently contradictory In the earlier authorities, the obscuration of ancient lights is dealt with on the footing of a nuisance*. ...In Lanfranchi v. Mackenzie 3 , Malins,' V.C., held that a person could not, by using the dominant tenement for a period less than 20 years for some special purpose requiring an extraordinary amount of 1 L. E. [1900] 2 Q. B. 722. 2 See Aldred's Case (9 Coke 57 6) ; Clarke v. Clark (L. E. 1 Ch. 15). 3 L. E. 4 Eq. 421. sect, iv.] Colls v. Home and Colonial Stores, Ld. 455 light, in excess of what was required for the ordinary purposes of inhabitancy or business, entitle himself to protection for such extra- ordinary requirements, and thereby impose an additional restriction on his neighbour's use of his own land. In that case, as in the present one, it was not proved that the extraordinary amount of light had been used for 20 years. " No man," said the Vice-Chancellor, quoting the words of another Judge, " can by any act of his own suddenly impose a new restriction on his neighbour." But in Warren v. Brown* the Court of Appeal dissented from this decision, and their opinion was a logical conclusion from the views which they expressed as to the nature and extent of the easement. My Lords, I do not concur with the opinion of the Court of Appeal, for I think that Lanfranchi v. Mackenzie was rightly decided. ...Whilst agreeing that regard may be had not only to the present use, but also to any ordinary uses to which the tenement is adapted, I think it quite another question whether the owner is entitled to be protected, at the expense of his neighbour, in the enjoyment of the light for some extraordinary purpose ; [e.g. to light a room of such unusual shape as the ground-floor office of the present plaintiffs]. It is agreed on all hands that a man does not lose or restrict his right to light by non-user of his ancient lights, or by not using the full measure of light which the law perm its.... Now if the actual user is not the test, where that user falls below the standard of what may reasonably be required for ordinary purposes, why should it be made the test where the use has been of an extraordinary character in excess of that standard 1 It seems to me unreasonable to hold that where a man... converts part of his house into a photographic studio, he can suddenly call upon his neighbour to leave him an increased supply of light which is rendered necessary only by such alterations; and thus impose an increased burden on this neighbour. ...I am of opinion that the Courts have gone too far in this question of lights, and have imposed undue restrictions on the exercise of men's right to build on their own land. ...It is unnecessary to say whether a claim to the acquisition [of the special easement of an extraordinary quantity of light, by twenty years' enjoyment] would be good in law. Malins, V.C., thought such a claim could be sustained if the special user was had with the knowledge of the owner of the servient tenement. I will only say that I see some difficulties in the way, and reserve my opinion. I am of opinion that the owner or occupier of the dominant tene- ment is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind ; and that the question i L. E. [1900] 2 Q. B. 722. 456 Select Cases on the Law of Torts. [part ii. for what purpose he has thought fit to use that light, or the mode in which he finds it convenient to arrange the internal structure of his tenement, does not affect the question. The actual user will neither increase nor diminish the right. The single question in these cases is still what it was in the days of Lord Hardwicke and Lord Eldon, — whether the obstruction complained of is a nuisance Lord Lindlby The decision in Kelkv. Pearson 1 has afar-reaching effect. If there is no absolute right to all the light which comes to a given window, no action will lie for an obstruction to that light unless the obstruction amounts to a nuisance In considering what is an actionable nuisance, regard is had — not to special circumstances which cause something to be an annoyance to a particular person — but to the habits and requirements of ordinary people. And it is by no means to be taken for granted that a person who wants an extra- ordinary amount of light for a particular business can maintain an action if only his special requirements are interfered with.... As to the character of the neighbourhood, see St Helens Smelting Co. v. Tipping 1 . ...The general principle deducible from the authorities appears to be that the " right to light " is, in truth, no more than a right to be pro- tected against a particular form of nuisance There are elements of uncertainty which render it impossible to lay down any definite rule applicable to all cases. Firstly, there is the uncertainty as to what amount of obstruction constitutes an actionable nuisance ; and, secondly, there is the uncertainty as to whether the proper remedy is an injunction or damages.... [Lord Robertson concurred. There was no dissentient.] Judgment of Joyce, J., restored. [Editor's Note. Lord Davey, in his judgment, pronounced the "Rule of 45 degrees " to be, at any rate, useful as prima facie evidence (p. 204) ; and Lord Lindley remarked that "it is, generally speaking, a fair working rule to consider that no substantial injury is done where an angle of 45° of unobstructed light is left, especially if there is good light from other directions as well."] 1 Supra, p. 449. 2 Supra, p. 440. sect, iv.] Todd v. Flight. 457 [The respective liabilities of the Owner and of the Occupier of the premises where the nuisance is.] TODD v. FLIGHT. Court of Common Pleas. 1860. 9 C.B. N.S. 377. [Action by the owner of a chapel for the destruction of its roof by the fall of the chimneys of a building which the defendant had demised to a Mr Batt, though he knew its chimneys to be in a dilapidated and dangerous state. The defendant had wrongfully suffered them to remain in that state until they fell. The defendant demurred.] Honyman, for defendant. The injury occurred whilst the chimneys were in the occupation of a tenant. There is therefore no ground to charge the present defendant... who has done no act to identify himself with the nuisance complained of. Eblb, C.J., delivered the judgment of the Court 1 : — In this case the plaintiff's right to sue some one in respect of the damage from the fall of defendant's chimneys was not denied. ...The point in contest is, whether the defendant is the proper, party to be sued. And as to this point the material allegations are, that the defendant, at the time the cause of action arose, was the reversioner, he having demised the premises to Batt, who was then in occupation ; that the chimneys were ruinous and in danger of falling, and were known by him to be so at the time when he demised them to Batt ; and that he the defendant kept and maintained them in such ruinous and dangerous state. Upon these facts, the defendant contended that the action should lie against the lessee in occupation, and not against himself, being only the reversioner : and he cited Cheetham v. Hampson, 4 T.R. 318, where the action was for non-repair of fences, and was held not to lie against the landlord, and Russell v. Shenton, 3 Q.B. 449, 2 Gale & D. 573, where the action for not cleansing the drains and sewers was also held not to lie against the landlord. On the other hand, the plaintiff contended that, in many cases, the party suffering damage from a nuisance had the option of suing either the lessee in occupation or the lessor. Thus, where the damage was from the non-repair of the trap-door over a cellar, and it appeared that it was the duty of the lessor to do this repair, as between him and the lessee it was held that the action lay against the lessor : Payne v. Rogers, 2 H. Bla. 348. And, where the damage arose from a wrongful 1 Erie, C.J., Williams, J., Byles, J., and Keating, J. 458 Select Cases on the Law of Torts. [part ii. act of the defendant, in erecting a wall which obstructed the plaintiff's light, and the defendant had (before action brought) leased the premises to a party who was then in possession, still the lessor was held liable for the continuance of the wall after the lease, because it existed at the time of the demise : Rosewell v. Prior, 2 Salk. 460, 1 Lord Raym. 713. So where the lessor demised houses either with a privy or with a right of resorting thereto, it was held that, either if he demised the privy when it had become a nuisance, or if he had the duty of cleansing it after it became a nuisance, he might be indicted for the nuisance ; and, if he demised the houses with the use of the privy only, he would be the occupier, and so clearly liable : The King v. Pedly, 1 Ad. & E. 822, 3N.&M. 627. These cases are authorities for saying, that, if the wrong causing the damage arises from the non-feasance or the mis-feasance of the lessor, the party suffering damage from the wrong may sue him. And we are of opinion that the principle so contended for on behalf of the plaintiff is the law, and that it reconciles the cases. In Cheetham v. ffampson, it was held that the action did uot lie against the landlord for non-repair of the fences, because he had no duty to repair them, and therefore was guilty of no wrong in non- repair. So, in Russell v. Shenton, the Court assumed that the lessor was not bound to cleanse the drains during the demise, and so was guilty of no wrong. So, in Rich v. Baster -field, i C.B. 783, the lessor was held not liable for the damage occasioned by smoke from the fires which the lessee chose to make : but the reasoning of the judgment assumes it to be law that the lessor may be liable in cases of nuisance, if he has been guilty of a wrong causing the damage which made a cause of action. This is expressed in many parts of the judgment, but more particularly in page 805, commenting on The King v. Pedly, and saying, — " If the lessor had demised the buildings when the nuisance existed, or had re-let them after the user of the buildings had created the nuisance, or had undertaken the cleansing and had not performed it, we think he would have been made liable properly.'' In the present case, it is alleged that the defendant let the houses when the chimneys were known by him to be ruinous and in danger of falling, and that he kept and maintained them in that state ; and thus he was guilty of the wrongful non-repair which led to the damage. After the demise the fall appears to have arisen from no default of the lessee, but by the laws of nature. "We therefore hold that the action lies against the lessor, and the judgment is for the plaintiff. [Editor's Note. See Lane v. Cox, infra.'] sect, iv.] Adam's Case. 459 [-4 person injured by a Private nuisance, or specially injured by a Public nuisance, may {instead of resorting to litigation) himself abate ' it, if he can do this peaceably .] ADAM'S CASE. Stafford Assizes. 1293. Y.B. 20 & 21 Edw. I. fo. 462. If Adam places a fence where his neighbour B hath a right of driftway to his common of pasture, then B commits no tort if, freshly on the placing thereof, he do abate it in the day time.... But there will be a tort if he abate it by night, albeit it was placed unlawfully. [Thus the nuisance caused by trees overhanging my land I may abate by lopping them.] [But where an Abatement involves entering upon an innocent person's land, previous Notice should be given to him.] LEMMON v. WEBB. Court of Appeal. 1894. [1894] 3 Ch. 1. ******* Lindley, L.J. The plaintiff and the defendant in this case are adjoining landowners. Some old trees situate on the plaintiff's land had branches which projected over the defendant's land. The defendant cut off so much of these branches as projected over his land, and he did so without going on to the plaintiff's land, and without previous notice to him. The question is whether the defendant was justified in so doing. Mr Justice Kekewich thought not, and gave the plaintiff judgment for £5 and costs. The defendant has appealed. There is some controversy as to whether the defendant did not cut rather more than he himself says he did, and more than he seeks to justify. But the evidence is clear that he certainly did not intend to cut more than so much of the branches as overhung his land ; and the evidence is not sufficient to prove that he did in fact cut more. Having noticed this matter, I pass it over without further comment, for the action was not brought for such a trumpery purpose as to obtain damages for the wrongful cutting of two or three inches too much. The action was brought to obtain a declaration that the 1 Abate = beat down, remove. From Norman-French, abatre. Cf. Spenser's " Misery doth bravest minds abate." 460 Select Cases on the Law of Torts. [part ii. defendant had no right to cut the branches at all, or, at all events, no right to cut them without previous notice to the plaintiff and a request to him to cut them, and a non-compliance by the plaintiff with that request. It was contended on behalf of the plaintiff that, having regard to the age of the trees and of the projecting branches, he had acquired a right to the exclusive possession of so much of the space above the defendant's soil as the branches actually filled, and that either under the Statute of Limitations or by prescription the plaintiff had a right to keep the branches -when they had grown. It was contended that if a man erected on his own land something which projected over his neighbour's land, and it remained undisturbed for a sufficient length of time, his neighbour could not remove it nor maintain any action in respect of it. This is true. But to plant a tree on one's own land infringes no rights, and, if the tree grows over the soil of another, I cannot discover that any action lies for the encroachment unless damage can be proved. I can find no authority for the proposition that an action of trespass would lie in such a case, and it is plain that Lord Ellenborough did not think it would : see Pickering v. Pudd'. According to our law the owner of a tree which gradually grows over his neighbour's land is not regarded as insensibly and by slow degrees acquiring a title to the space into which its branches gradually grow. _ This is the view taken in Gale on Easements ", to which reference will be made presently. Considering that no title is acquired to the space occupied by new wood, and that new wood not only lengthens but thickens old wood, and that new wood gradually formed over old wood cannot practically be removed as it grows, and considering the flexibility of branches and their constant motion, it is plain that the analogy sought to be established between an artificial building or projection hanging over a man's land and a branch of a tree is not sufficiently close to serve any useful purpose. The argument to which I am referring had the charm of novelty ; but it is quite inconsistent with the authorities to which I will refer presently, and no Court can intro- duce by judicial decision a perfectly new mode of acquiring a title to land or to a portion of the space above it. The right of an owner of land to cut away the boughs of trees which overhang it, although those trees are not his, is too clear to be disputed. This has been declared to be the law for centuries : see Brooke's Abr. "Nusans" 3 ; Norrisv. Baker 4 ; Pickering v. Pudd 6 ; Crowhurst v. Burial Board of Amersham 6 — and there is no trace of the age of the tree or its branches being a material circumstance for consideration. Nor did Mr Justice Kekewich intimate any doubt upon the law up to this 1 4 Camp. 219. z 6th ed. p. 461. 3 Vol. n. p. 105, pi. 28. 4 1 Koll. 393. 5 4 Camp. 219 ; 1 Stark. 56. 6 4 Ex. D. 5. sect, iv.] Lemmon v. Webb. 461 point. He, however, held that notice ought to be given to the owner of the tree before it was interfered with ; and the real question is whether notice is required by law. The authorities to which I have referred do not allude to the necessity of notice. In Pickering v. Rudd, which was an action for cutting the plaintiff's Virginian creeper, the plea contained no averment of notice, and the plaintiff did not demur, but new assigned and alleged an excessive cutting. Lord Ellenborough held that the only question was whether the defendant had exceeded his right by cutting too much. Again, in Chitty on Pleading 1 , a form of a plea justifying the lopping of overhanging branches is given, and there is no averment of notice to the owner of the tree. In the 7th edition, Vol. in. p. 364, such an averment is introduced, and reference is made to Jones v. Williams*. Jones v. Williams was not a case of cutting trees, but it is the leading authority on the right to abate nuisances without notice ; and it was decided that a person who suffers from a nuisance on another person's land can enter upon that land and abate that nuisance without notice if the person in possession of the land himself created the nuisance, or in case of emergency ; but that in other cases notice to the person in possession, and a request to him to abate the nuisance, and non-compliance with that request, are necessary to justify the entry and the abatement of the nuisance by the person aggrieved by it. This is what the case decided ; and so far the decision only applies to what one man may do on another man's land, it does not shew what a man may or may not do on his own land. But in Jones v. Williams, Baron Parke, who delivered the judgment of the Court, referred to a case in Jenkins 8 , and to Penruddock's Case', as authorities for the proposition that an owner of land cannot without notice remove the overhanging eaves of a neighbour's house erected by a former owner through whom the neighbour had acquired title by feoffment. The reason of this doctrine is not explained. But, assuming it to be correct as regards an overhanging house or eaves, it does not follow that it applies to the overhanging branches of a tree. The judgment of Mr Justice Best in Earl of Lonsdale v. Nelson 5 is explicit that overhanging trees may be lopped by the owner of land over which they hang without notice. Mr Justice Best says the right so to lop them is an exception to the general rule which requires notice before a nuisance, not created by the owner of what creates it, can be abated by a person injured by it. He is not alluding to a case of emergency, for in such a case no notice need ever be given. He refers to such cases afterwards. His Lordship says: " Nuisances by an act of commission are committed in defiance of those whom such nuisances injure; and the injured party may abate them without notice to the 1 7th ed. Vol. in. p. 364. - 11 M. & W. 176. s Page 260, case 57. 4 5 Rep. 100 b. 5 2 B. & C. 311. 462 Select Cases on the Law of Torts. [part ii. person who committed them. But there is no decided case which sanc- tions the abatement, by an individual, of nuisances from omission, except that of cutting the branches of trees which overhang a public road or the private property of the person who cuts them. The per- mitting these branches to extend so far beyond the soil of the owner of the trees, is a most unequivocal act of negligence ; which distinguishes this case from most of the other cases that have occurred." What I have above said respecting the right to cut branches is equally true with respect to the right to cut roots. See Gale on Ease- ments, p. 461, where the learned writer says : "There appears to be no authority in the English law, that, in the absence of express stipu- lation, an easement can be acquired by user, 'to compel a man to submit to the penetration of his land by the roots of a tree planted in his neighbour's soil. The principal objections to the acquisition of such an easement consist in the secrecy of the mode of enjoyment, and the perpetual change in the quantity of inconvenience imposed by it. Sup- posing no easement to exist, there seems nothing to take this out of the ordinary rule that a man may abate any encroachment upon his pro- perty, and therefore that he may cut the roots of a tree so encroaching, in the same manner that he may the overhanging branches." The law on the subject is, in my opinion, as follows : The owner of a tree has no right to prevent a person, lawfully in possession of land into or over which its roots or branches have grown, from cutting away so much of them as projects into or over his land ; and the owner of the tree is not entitled to notice unless his land is entered in order to effect such cutting. However old the roots or branches may be, they may be cut without notice, subject to the same condition. The right of an owner or occupier of land to free it from such obstructions is not restricted by the necessity of giving notice, so long as he confines him- self and his operations to his own land, including the space vertically above and below its surface. The defendant contended that he was justified in cutting the plaintiff's trees because they were in imminent danger of falling ; but this is not proved, and my judgment is not based on grounds of urgency. The appeal, therefore, must be allowed, and the appellant must have the costs of the appeal. Judgment must be entered for the defendant ; but, having regard to the obscurity of the law as to notice and to the very unneighbourly conduct of the defendant, there will be no order as to the costs of the action. [Editor's Note. An appeal was made by the plaintiff to the House of Lords. The order of the Court of .Appeal was affirmed by the House of Lords, the Lords being unanimous in the judgments given : L. E. [1895] A. C. 1. Lord Macnaghten, however, suggested a possible limitation of the right to lop ; saying — " Whether the sect, iv.] Lemmon v. Webb. 463 same rule would necessarily apply to trees so young that the owner might remove them intact if he chose to lift them (or to shrubs capable of being transplanted) may perhaps be worthy of consideration.... Here the trees are of great age ; and the only possible remedy was by lopping."] [The nuisance caused by erecting buildings on a Common, any Commoner may abate by pulling them down, if he give Notice.] DA VIES v. WILLIAMS. Court of Queen's Bench. 1851. 16 Q.B. 546. ******* Wightman, J., delivered the judgment of the Court. This was an action of trespass against the defendants, nineteen in number, for (1) breaking and entering and pulling down and demolishing the dwelling house of the plaintiff, then actually inhabited by the plaintiff and his family, and thereby endangering the lives of the plaintiff and his family ; and (2) for seizing, carrying away and casting about divers goods and chattels of the plaintiff, then being in the dwelling house ; and (3) for breaking and entering a building of the plaintiff called a beast-house, and driving out of it and converting certain cattle of the plaintiff. [After a verdict for the defendant on certain issues, a motion was made to enter that verdict for the plaintiff, on three grounds. One of these was, that the pleas of right of common were no answer to the charge of trespass in pulling down a house whilst the occupier and his family were in it. On this point the plaintiff — whilst admitting] the general right of a commoner to abate any building erected upon the place over which he has the right of common — relied upon the case of Perry v. Fitzhowe 1 . There it was held that, where a declaration in trespass alleged that the defendants pulled down a dwelling house in which the plaintiff and his family actually were present and inhabiting, a plea which justified as a commoner entitled to abate a building wrongfully erected upon the common, but which did not allege any previous notice or request to remove, could not be sustained. There is obviously a wide distinction between the case of parties suddenly coming to the dwelling house alleged to be a nuisance — in which the occupier and his family are actually dwelling and are in the house, and without notice or demand forcibly pulling it down — and a case in 1 8 Q. B. 757. 464 Select Cases on the Law of Torts. [part ii. which the occupier of the house has had previous notice and request to remove the building, but has persisted in remaining in the house in defiance of them. In the case of Perry v. Fitzhowe* Lord Denman, C.J., asks the counsel for the defendant whether he can maintain pleas which justify pulling down a house in which the plaintiff' and his family are actually living, without alleging a previous notice to them to go out. It was unnecessary in that case to give any opinion as to the effect of such an allegation, as the plea did not contain it. But in the present case there is an express allegation both of notice and request ; which we think distinguishes this case from that of Perry v. Fitzhowe. There is therefore nothing to take this case out of the general rule, that a commoner may pull down a building which is wrongfully erected upon the common and prevents his exercising his right as fully as he might otherwise ; (provided he does no unnecessary damage). We are therefore of opinion that there is no sufficient ground to support the first point made by the plaintiff. jfe ife 4LL Jjd Jj£ A Jfc 1 8 Q. B. at p. 764. sect, iv.] Fenna v. Glare & Co. 465 [W7tai may be sufficient evidence that the Nuisance has been the proximate cause of damage.] FENNA v. CLARE & CO. Queen's Bench Division. L.R. [1895] 1 Q.B. 199. Appeal from county court of Cheshire. The defendants were the owners of a shop adjoining a public highway. In front of a receding window of the shop, and immediately abutting on the footway, was a low wall eighteen inches high, the property of the defendants, on the top of which wall was a row of sharp iron spikes four and a half inches high. On May 21, 1894, the plaintiff, a little girl aged five years and nine months, was found standing on the footpath by the side of the wall with her arm bleeding from a recent wound, such as might have been caused by her falling upon the spikes. No person witnessed the accident. The plaintiff brought an action in the county court for damages for the injury, which was alleged to have been caused by reason of the defendants having maintained a state of things which was a nuisance to the highway. At the trial the plaintiff, who was ill, was not called as a witness ; nor was any other evidence than the above given as to how the accident happened, except that of the defendants' shop-boy. He deposed that, shortly before the accident, he saw the plaintiff climbing up upon the wall between the spikes, and told her to get down, which she did. The defendants' counsel submitted, upon the authority of Wakelin v. London and South Western By. Co. ', that there was no case to go to the jury ; for that, assuming that the spiked wall was a nuisance, and that the plaintiff's injury was caused by her falling upon the spikes, the facts proved were as much consistent with her having so fallen whilst wrongfully climbing upon the wall — in which case she would, upon the authority of Hughes v. Macfie 2 , be disentitled to recover — as with her having fallen whilst lawfully using the highway. The county court judge, however, refused to nonsuit, and left to the jury the following questions: — 1. Were the spikes a nuisance? — Answer: Yes. 2. Was the injury caused by the spikes ? — Answer : Yes. 3. Was there contributory negligence on the part of the plaintiff? — -Answer : No. Upon those findings the judge entered judgment for the plaintiff. The defendants appealed. A. P. Thomas, for the defendants. The onus lay upon the plaintiff to shew that the existence of the nuisance was the cause of the injury, i 12 App. Cas. 41. '2H.&C. 744. K. 30 466 Select Cases on the Law of Torts. [part ii. and of that she gave no evidence. There is no evidence that she was lawfully using the footpath ; and "if in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails," (per Lord Halsbury in Wakelin v. London and South Western By. Co. 1 ). That ease is on all-fours with the present. There the plaintiff's husband was knocked down and killed by a passing train at a point where the railway line crossed a public footpath on the level. The House of Lords held that, in the absence of evidence that the accident was caused by the negligence of the defendants rather than by the negligence of the deceased, there was no case to go to the jury. [Pollock, B. But here there is this distinction, that you start with the established fact that the defendants were guilty of a nuisance which might have caused the injury. As against such wrongdoers, it is not an unreasonable inference that it did in fact so cause it.] But in Wakelin's Case 2 the Lords assumed for the purposes of argument that the defendants were guilty of negligence which might have caused the accident. Therefore in that case the defendants were just as much wrongdoers as were the defendants here. In each case the question was whether the defendants' wrongdoing was causally connected with the injury. In Wakelin's Case 2 Lord Halsbury (at p. 46) pointed out that there is "no legal presumption that people are careful and look before them on crossing a railway." So here there is no legal presumption that the plaintiff was lawfully using the highway. Indeed, having regard to the evidence of the defendants' shop-boy, the presumption of fact is rather the other way. The only means by which the defendants could have established their case was by cross-examination of the plaintiff; but she kept out of the box. In the absence of her evidence there was nothing left but mere conjecture, which is not enough. . . . Pollock, B. No doubt in these cases strict proof of the defendants' liability ought, in general, to be given. But here the facts are very special. The defendants maintained, at a spot immediately abutting on a public highway, a spiked wall which the jury have found to be a nuisance. Then a child is found on the highway close to the wall, with her arm injured ; and injured jn such a way as is consistent with the injury having been caused by her stumbling against the spikes whilst lawfully passing along the footpath. In my judgment, it cannot be said that there was no evidence on which the jury might have found that the injury was caused by the nuisance whilst the plaintiff was using the highway in a proper manner. Grantham, J. I am of the same opinion. Appeal dismissed. 1 12 App. Cas. 41, at p. 45. a 12 App. Cas. 41. sect, iv.] Fenna v. Clare & Co. 467 [Editor's Note. A supplementary sentence may be added from another report (64 Law Journal, Q. B. 240) of the judgment of Pollock, B.:— "The judge was right in asking the jury whether, upon tlie whole probabilities of the case, they thought that the child met with the injury, from the spikes, whilst properly using the highway." The Btudent may refer to the very similar facts of Jewsou v. Gatti (2 T. L. B. 441) ; and to Lynch v. Nukdin, supra, p. 27.] [In actions for nuisances, besides t/ie general remedy in Damages, there is also, in appropriate cases, a remedy by Injunction.] COOKE v. FORBES. Court of Chancery. 1867. L.R. 5 Eq. 166. Bill filed by a firm of dealers in cocoa-nut fibre matting against the occupiers of an adjacent factory. For the purpose of weaving the plaintiffs' mats, the matting had to be immersed in bleaching liquids, and then hung out to dry. Ever since May 1863, fumes had issued from the works of the defendants, (who were manufacturers of sulphate of ammonia and carbonate of ammonia, from the ammoniacal liquor of gas works), particularly when the wind was in the north-west, north, or north-east, the effect of which was to turn the plaintiff's matting, when hung up to dry after bleaching, from a bright to a dull and blackish colour, requiring the material to be again dyed, at considerable expense, the colour even then being permanently injured The bill alleged damage, and prayed that the defendants might be restrained " from carrying on the said works of the defendants in such a manner as in any way to operate to the damage of the plaintiffs, or any of them, or of their or any of their servants, workmen, or agents, or of the said manufactures so carried on by the plaintiffs, as afore- said " ; and also for damages. The defendants filed an answer, in which they stated that shortly after the commencement of their occupa- tion in 1863, they erected valuable plant and machinery for carrying on the business above stated, and extraordinary precautions were taken to prevent the escape of free ammonia and sulphuretted hydrogen, with the double object of economy, and of obviating all injury. # * * * * * . * Sib W. Page Wood, V.C...The defendants do not say (indeed, they could not have said, although it was so argued for them by their counsel at the bar) : "We are entitled to pour noxious fumes into your 30—2 468 Select Cases on the Law of Torts. [part ii. property, and you are not entitled to complain if you should suffer any injury in your manufacture ; more especially regard being had to your choosing to establish in this neighbourhood a manufacture which requires such delicate handling as that a particular gas will affect it and impair its value." What they say by their answer, impliedly, if not distinctly, is — that their manufacture does require the greatest possible precautions to avoid the emission of sulphuretted hydrogen, which everybody knows to be a very offensive gas; that they have taken those precautions successfully ; and that, in fact, no damage has been done. I may here say, I think it proved beyond dispute in this case, that sulphuretted hydrogen does produce an injurious effect to a certain degree on the manufacture of cocoa-nut matting ; owing to the use in the bleaching liquid of chloride of tin, which when affected by sulphuretted hydrogen is turned to a darker colour. In that state of things, I apprehend the issue is reduced to one of mere fact ; not simply whether or not any damage has been done, but with reference, also, to the extent of the damage, and as to the necessity of granting an injunction, upon which point I took time to consider the whole case. As regards the state of the law upon the question, whether or not a person is entitled, because there are noxious vapours existing already in the neighbourhood, to add to that accumulation by creating additional noxious vapours, and pouring them in upon his neighbour's property, it is sufficient to say that it is well settled by the case of St Helens Smelting Company v. Tipping 1 , where the summing up of Mellor, J., was approved by the House of Lords, and must be taken to have laid down the correct law on the subject. Consequently, it appears to me quite plain that a person has a right to carry on upon his own property a manufacturing process in which he uses chloride of tin, or any sort of metallic dye, and that his neighbour is not at liberty to pour in gas which will interfere with his manufacture. If it can be traced to the neighbour, then, I apprehend, clearly he will have a right to come here and ask for relief. But the real point I have to consider and determine is, whether a person carrying on a manufacture in itself lawful — a manufacture required to be carried on with great precaution in order that the neighbour may not be injured, but still using these precautions, and yet occasionally, by accident, injuring that neighbour — whether that is a case for an injunction, or whether it is not a case in which, when the neighbour is injured, his remedy must be by action. In other words, whether a man is to be placed under the necessity of carrying on his manufacture subject to perpetual applications for commitment for contempt, because his manufacture is of such a character as that, 1 11 H. L. C. 642 ; supra, p. 440. sect, iv.] Cooke v. Forbes. 469 whenever an accident does occur, some damage may be inflicted upon his neighbour. I take it in such a case as I have mentioned, although I have not found any authority expressly pointing to it, there is a limit which must be drawn. If a person has a quantity of material necessary for the manufacture of gunpowder, of so dangerous a character that if the slightest accident occur the damage done to his neighbours is irre- parable — gunpowder being an article that if kept in quantities near any public highway, or near any property where individuals are living, is itself a nuisance, and held to be so in law — in that state of things the Court will interfere at once by injunction. I acted upon the same principle in the jute case, Hepburn v. Lordan 1 . I thought it was within the doctrine of the gunpowder case, that a person could not be allowed to expose jute to dry where the consequences of a slight accident would be fatal to everybody around. Here I have nothing of that description. This is an instance of a person carrying on a manufacture which, if his neighbour had not happened to have another manufacture of great delicacy, probably would not have caused any injury to the neighbour. Still, he has not a right to injure his neighbour's manu- facture at all ; and if it had been proved to me that the injury was of such a character as I have described, a grave injury occurring every time that an accidental escape took place — or if it had been proved to me that there had been a constant repetition of the injury, then, I apprehend, the proper course would have been to grant an injunction. But if, on the other hand, it should be proved — and that is the conclusion I have come to upon a careful consideration of the evidence — that the injury, though it may have occasionally happened, is, to the whole extent of it, not traceable to these works, then, notwithstanding the authority of the St Helens Case, the plaintiff will not be entitled to an injunction. Or, if there be no right asserted by the defendant to injure his neighbour ; if, on the contrary, the assertion by him is that he does not do it, or that, if he does, it is simply from accidental cir- cumstances, which from time to time happen, and for which the plaintiff may have a remedy in damages ; and if it appears that that is what the case amounts to upon the evidence, it does not seem to me that the proper remedy is by injunction in this Court. I have referred to the case of Attorney-General v. Sheffield Gas Consumers Company 2 , in which Lord Justice Knight Bruce differed from Lord Justice Turner and the Lord Chancellor: — [His Honour reviewed that case at length, and observed that there the injunction was refused because the injury, which consisted of hindrance to traffic from the taking up of parts of streets by a private gas company, was neither serious nor continuous. His Honour then continued : — ] 1 2 H. & M. 345. 2 3 D. M. & G. 304. 470 Select Cases on the Law of Torts. [part ii. Now, I have to inquire what is the extent of the injury here? Upon the whole evidence I do not find anything to satisfy me that there were more than three occasions, at most, during the period of four years and a half since the defendants' manufacture commenced, when injury of any description was done. The question then being as I have before described it, I confess the case appears to me to be one much more governed by the doctrine which was referred to in Attorney-General v. S/ieffield Gas Consumers Company 1 than any of those cases where the injury is either very vast, or of very sudden or frequent occurrence, or where the right is set up to inflict the injury. It is not because counsel argued that the defendants would have a right to do this — this being one of the points of law which they thought it right to submit to the Court — that therefore I am to assume that the defendants make it. As I have said, I do not find that the defendants have ever asserted a right to pour out anything deleterious upon their neighbours. As to the extent of the damage, I am left extremely in the dark ; but, as far as the evidence goes, if I had to decide upon it as a jury I should not feel competent to assess anything more than nominal damages. The only satisfaction I have in disposing of the case on these grounds is, that a jury would not have assisted me, because with a jury I could only have tried the particular cases on the particular days specified, of which days I have already given the plaintiff the benefit. I think that he has shewn evidence which might have satisfied a jury that upon two days mischief was done. I think as to the third there may be a doubt. He may have the benefit of the doubt, but a jury could not tell me that there was a single other day upon which it happened, because there is no evidence to go to a jury as to damage on any other day. The result, therefore, of the whole case is, that I must dismiss the bill. I do not think it a case for an injunction, and considering that the bill was filed so late as it was, and considering all the opportunities given to the plaintiff to make out his case, of which he did not avail himself, I am bound to dismiss it with costs, without prejudice to any action he may be advised to bring if he thinks he can get damages. 1 3 D. M. & Q. 304. sect, iv.] Att-General v. Cambridge Consumers Gas Co. 471 [In what cases the remedy by Injunction is appropriate.] ATTORNEY-GENERAL v. CAMBRIDGE CONSUMERS GAS CO. Court of Appeal in Chancery. 1868. L.R. 4 Ch. 71. [Information and bill, the relators and plaintiffs being the Cambridge University and Town Gaslight Company, and the joint defendants the Cambridge Consumers Gas Company, Limited, and also the Im- provement Commissioners of Cambridge. The plaintiff company had lighted Cambridge since 1854, under a contract with the Improvement Commissioners ; but the latter had now entered into a similar contract with the defendant company, as it had offered to do the work on cheaper terms. The plaintiffs prayed for an injunction to restrain the defendant company from breaking up the street and footpath ad- joining the land of the plaintiffs, and from injuring or interfering with the pipes of the plaintiffs, and from breaking up any of the streets and pavements of the town, and from allowing any of the pipes already laid down to continue; and also to restrain the Commissioners from exercising, or assuming to exercise, the power of permitting the defen- dant company to break up the streets or interfere with the gas-pipes of the plaintiffs. ...Evidence was given that many of the streets of Cambridge, and principally some in the centre of the town, which they specifically mentioned, were so narrow that only one vehicle could pass through them at once, and that if the defendant company were to break up those streets for the purpose of laying such mains, the traffic through the streets would be entirely suspended; and that there were many narrow streets and places in the town of considerable importance for foot passengers, by the opening whereof, for the purpose of laying their mains, by the defendant company, much inconvenience and annoyance would be caused to the public. An injunction having been granted by Malins, V.C., the defendant company appealed.] ******* Sir W. Page Wood, L.J....To say that any private individual or company may break up the pavements for the purpose of laying down gas-pipes or water-pipes, or of making communications with the gas- pipes or water-pipes of another company without subjecting themselves to an indictment, would be to create confusion and discomfort to the inhabitants of a town. But Attorney-General v. Sheffield Gas Consumers Company 1 rests upon principles well established. One of them is this, 1 3D.M.&G. 304. 472 Select Cases on the Law of Torts. [part ii. that where the Court interferes by way of injunction to prevent an injury in respect of which there is a legal remedy, it does so upon [one or other of] two grounds, which are of a totally distinct character ; one is that the injury is irreparable, as in the case of cutting down trees ; the other that the injury is continuous, and so continuous that the Court acts upon the same principle as it used in older times with reference to bills of peace, and restrains the repeated acts which could only result in incessant actions, the continuous character of the wrong making it grievous and intolerable. As an illustration of this class of case, I may refer to Soltau v. De Held 1 , where the annoyance from the ringing of the bell was in itself slight, but it was so continuous that the Court thought fit to arrest the nuisance brevi manu, and save the com- plainant all further annoyance. If, therefore, in the present case it had been made out that there was, either to the public or to the owners of property adjoining the streets, such a continuous injury, an injunction would be granted ; and we must accordingly look narrowly at the evidence, as the Judges did in Attorney-General v. Sheffield Gas Consumers Company 2 , to learn the amount of continuous injury which is likely to be inflicted. The principal reasoning of the Judges in that case applies with still stronger effect here. They said in effect : " Although it is true that the com- pany are about to take up no less than seventy miles of streets, it will be at different times, and at no one time will it occupy more than two or three days ; that may be an indictable offence, but we do not think it is such an injury as to call for the interference of this Court." No doubt there may be cases in which this Court would interfere to prevent injury of this nature being done only for a single day; as where there is a street with immense traffic, and there is danger that by the loss of that traffic for a single day custom would be diverted elsewhere and lost. But this is not a case of that kind. We have here the same circumstance which occurred in Attorney-General v. Sheffield Gas Consumers Company, and which, I think, influenced the judgment of the Court — that it is not an ex officio information in which the Attorney-General gathers up the complaints and injuries of a whole district, and lays them before the Court ; but it is an informa- tion at the relation of a rival gas company, who are also the plaintiffs. They have a perfect right to bring themselves forward as plaintiffs if any special damage has been inflicted upon them. But I agree with the Vice-Chancellor that upon the evidence before us they prove no injury whatever to their property ; their witnesses speak a good deal of contemplated and possible injury to the pipes, but no one witness has come forward to prove that any specific injury has been done. Then, when we come to the injury to the public,. ..any member of the 1 2 Sim. (N.S.) 133. s 3 D. M. & G. 304. sect, iv.] Att-General v. Cambridge Consumers Gas Co. 473 town has it in his power to proceed by way of indictment ; and if the matter had been brought before us at the instance of a large number of inhabitants who had proceeded by way of indictment, and we saw that they would be obliged to have recourse to perpetual indictments, that might take the case out of the authority of Attorney-General v. Sheffield Gas Consumers Company. But here we have a body of Com- missioners incorporated from a very early period, (consisting of the Heads of all the colleges, and representatives of the borough in Parlia- ment, the magistrates, and other persons), who have powers of the largest description over the carriage-way and the pathway, the soil of which is vested in them. Every stone that is dug out is a trespass upon their property, and if they thought it right, as representing the whole town, they might act in this matter. But they do nothing of the kind. We only find that the information is filed at the instigation of a rival gas company Appeal allowed. Chapter II. — Wrongs of Fraud and Malice. (A) Deceit. [It is a tort to cause damage to a person by a false statement made with the intention that he should act on it.] PASLEY v. FREEMAN. Court op King's Bench. 1789. 3 Term Bbports 51. [This was an action in the nature of a writ of deceit ; to which the defendant pleaded the general issue. After a verdict for the plaintiffs on the third count, a motion was made in arrest of judgment. This third count was to the effect that , the defendant, intending to deceive and defraud the plaintiffs, and well knowing the contrary to be true, falsely, deceitfully, and fraudulently represented to them that one John Christopher Falch was a person safely to be trusted and given credit to, in the purchase on credit of sixteen bags of cochineal of the value of £2634. 16s. Id.; that the plaintiffs, believing this to be true, were thereby fraudulently caused and procured to sell to Falch this cochineal on credit; but that he had never paid any part of the sum, and had then been and still was unable to pay it or any part of it ; whereby the plaintiffs wholly lost the cochineal and its value.] 474 Select Cases on the Law of Torts. [part ii. Ashhuest, J. The objection in this case, which is to the third count in the declaration, is that it contains only a bare assertion, and does not state that the defendant had any interest, or that he colluded with the other party who had. But I am of opinion that the action lies notwithstanding this objection. It seems to me that the rule laid down by Croke, J., in Bayly v. Merrel 1 , is a sound and solid principle — namely, that fraud without damage, or damage without fraud, will not found an action ; but where both concur an action will lie.J The principle was not denied by the other judges ; but only the application of it, because the party injured there, who was the carrier, had the means of attaining certain knowledge in his own power, namely, by weighing the goods, and therefore it was a foolish credulity, against which the law will not relieve. But that is not the case here, for it is expressly charged that the defendant knew the falsity of the allega- tion, (and this the jury have found to be true) ; but non constat that the plaintiffs knew it, or had any means of knowing it, but trusted to the veracity of the defendant. And many reasons may occur why the defendant might know that fact better than the plaintiffs ; as if there had been before this event subsisted a partnership between him and Falch, which had been dissolved ; but at any rate it is stated as a fact that he knew it. I It is admitted that a fraudulent affirmation, when the party making it has an interest, is a ground of action, as in Risney v. Selby 2 , which was a false affirmation made to a purchaser as to the rent of a farm which the defendant was in treaty to sell to him. ^~ | But it was argued that the action lies not, unless where the party making it has an interest, or colludes with one who has] I do not recollect that any case was cited which proves such a position. But if there were any such to be found, I should not hesitate to say that it could not be law, for I have so great a veneration for the law as to suppose that nothing can be law which is not founded in common sense or common honesty. \For the gist of the action is the injury done to the plaintiffj; and not whether the defendant meant to be a gainer by it. What/is it to the plaintiff whether the defendant was or was not to gain by it 1 The injury to him is the same. And it should seem that it ought more emphatically to lie against him — as the malice is more diabolical — if he had not the temptation of gain. For the same reason, it cannot be necessary that the defendant should collude with one who has an interest. But if collusion were necessary, there seems all the reason in the world to suppose both interest and collusion from the nature of the act. For it is to be hoped that there is not to be found a disposition so diabolical as to prompt any man to injure another without benefiting himself. But it is said that if this be determined to be law, any man may have an action brought against 1 3 Bulstrode 95. 2 Salkeld 211. sect, iv.] Pasley v. Freeman. 4!Jb him for telling a lie, by the crediting of which another happens eventu- ally to be injured. But this consequence by no means follows. For in order to make it actionable it must be accompanied with the cir- cumstances averred in this count, namely, that the defendant, '/intending to deceive and defraud the plaintiffs, did deceitfully encourage and persuade them to do the act, and for that purpose made the false affirmation, in consequence of which they did the act./ Any lie ac- companied with those circumstances I should clearly hold to be the subject of an action ; but not a mere lie thrown out at random without any intention of hurting anybody, but which some person was foolish enough to act upon. For the quo animo is a great part of the gist of the action. Another argument which has been made use of is, that this is a new case, and that there is no precedent of such an action. Where cases are new in their principle, there I admit that it is necessary to have recourse to legislative interposition in order to remedy the grievance. But where the case is only new in the instance, and the only question is upon the application of a principle recognized in the law to such new case, it will be just as competent to courts of justice to apply the principle to any case which may arise two centuries hence, as it was two centuries ago. If it were not, we ought to blot out of our law-books one fourth part of the cases that are to be found in them. The same objection might in my opinion have been made with much greater reason in the case of Goggs v. Bernard 1 . For there the defendant, so far from meaning an injury, meant a kindness ; though he was not so careful as he should have been in the execution of what he undertook. And indeed the principle of that case does not in my opinion seem so clear as that of the case now before us ; and yet that case has always been received as law. Indeed, one great reason, perhaps, why this action has never occurred may be that it is not likely that such a species of fraud should be practised unless the party is in some way interested. The rule for arresting the judgment ought to be discharged. ******* Judgment not arrested. [Editor's Note. The student will do well to read the dissertation appended to this case in J. W. Smith's Leading Cases, Vol. n.] ' Lord Eaymond 909. 476 Select Cases on the Law of Torts. [past ii. [There must be an actual Statement, not a mere passive Concealment.] See Peek v. Gurney, infra, p. 480. [A Corporation may be rendered liable by its Agent's deceitful statements.\ See Bakwick v. English Joint Stock Bank, supra, p. 71. [The statement need not be made to the injured person directly. ,] LANGRIDGE v. LEVY. Couet oir Exchequer. 1837. 2 M. & W. 519. [Action of deceit to recover damages for personal injuries sustained by the plaintiff through the bursting of a gun which had been sold by the defendant to the plaintiff's father, for the use of himself and his sons, with a fraudulent and deceitful warranty that it had been made by Nock (a skilful gun-maker) and was a good and safe gun.] ^t -Jf 7fff ^C TJff Tfi At the trial before Alderson, B., at the Somersetshire Summer Assizes, 1836, it appeared that in June, 1833, the plaintiff's father saw in the shop of the defendant, a gun-maker in Bristol, a double-barrelled gun, to which was attached a ticket in these terms : " Warranted, this elegant twist gun, by Nock, with case complete, made for his late Majesty George IV. ; cost 60 guineas : only 25 guineas.'' He went into the shop, and saw the defendant, and examined the gun. The defendant (according to Langridge's statement) said he would warrant the gun to have been made by Nock for King George IV., and that he could produce Nock's invoice. Langridge told the defendant he wanted the gun for the use of himself and his sons, and desired him to send it to his house at Knowle, about two miles from Bristol, that they might see it tried. On the next day, accordingly, the defendant 'sent the gun to Langridge's house by his shopman, who also on that occasion war- ranted it to be made by Nock, and charged and fired it off several times. Langridge ultimately bought it of him for £24, and paid the price down. Langridge the father, and his three sons, used the gun occasionally. And in the month of December following, the plaintiff, sect, iv.] Langridge v. Levy. 477 his second son, having taken the gun into a field near his father's house to shoot some birds, putting in an ordinary charge, on firing off the second barrel, it exploded, and mutilated his left hand so severely as to render it necessary that it should be amputated. There was con- flicting evidence as to the fact of the gun's being an insecure one, or of inferior workmanship. Mr Nock, however, proved that it was not manufactured by him. The defendant also denied that any warranty had been given. The learned Judge left it to the jury to say, first, whether the defendant had warranted the gun to be made by Nock, and to be a safe and secure one ; secondly, whether it was in fact unsafe or of inferior materials or workmanship, and exploded in con- sequence of being so ; and thirdly, whether the defendant warranted it to be a safe gun, knowing that it was not so. The jury found a general verdict for the plaintiff, damages £400. In Michaelmas Term, Erie moved in pursuance of leave reserved by the learned Judge, and obtained a rule nisi for a nonsuit, on the ground that no duty could result out of a mere private contract, the defendant being clothed with no official or professional character out of which a known duty could arise ; and that the injury did not arise so imme- diately from the defendant's act as that it could form the subject of an action on the case by the plaintiff, between whom and the defendant there was no privity of contract. ******* Paeke, B. It is clear that this action cannot be supported upon the warranty as a contract, for there ' is no privity in that respect between the plaintiff and the defendant. The father was the con- tracting party with the defendant, and can alone sue upon that contract for the breach of it. The question then is, whether enough is stated on this record to entitle the plaintiff to sue, though not on the contract ; and we are of opinion that there is, and that the present action may be supported. We are not prepared to rest the case upon one of the grounds on which the learned counsel for the plaintiff sought to support his right of action, namely, that wherever a duty is imposed on a person by con- tract or otherwise, and that duty is violated, any one who is injured by the violation of it may have a remedy against the wrong-doer : we think this action may be supported without laying down a principle which would lead to that indefinite extent of liability, so strongly put in the course of the argument on the part of the defendant. And we should pause before we made a precedent by our decision which would be an authority for an action against the vendors, even of such instruments and articles as are dangerous in themselves, at the suit of any person whomsoever into whose hands they might happen to pass, and who should be injured thereby. Our judgment proceeds upon another 478 Select Cases on the Law of Torts. [part ii. ground. If the instrument in question, which is not of itself dangerous, but which requires an act to be done, that is, to be loaded, in order to make it so, had been simply delivered by the defendant, without any contract or representation on his part, to the plaintiff, no action would have been maintainable for any subsequent damage which the plaintiff might have sustained by the use of it. But if it had been delivered by the defendant to the plaintiff, for the purpose of being so used by him, with an accompanying representation to him that he might safely so use it, and that representation had been false . to the defendant's knowledge, and the plaintiff had acted upon the faith of its being true, and had received damage thereby, then there is no question but that an action would have lain ; upon the principle of a numerous class of cases, of which the leading one is that of Pasley v. Freeman 1 . That principle is, that a mere naked falsehood is not enough to give a right of action, [but only] if it be a falsehood told with an intention that it should be acted upon by the party injured, and if that act must produce damage to him. If, instead of being delivered to the plaintiff immediately, the instrument had been placed in the hands of a third person, for the purpose of being delivered to and then used by the plaintiff, the like false representation being knowingly made to the intermediate person to be communicated to the plaintiff, and the plaintiff had acted upon it, there can be no doubt but that the principle would equally apply, and the plaintiff would have had his remedy for the deceit. Nor could it make any difference that the third person also was intended by the defendant to be deceived ; nor does there seem to be any substantial distinction (if the instrument be delivered in order to be so used by the plaintiff) that it does not appear that the defendant intended the false representation itself to be communicated to him. There is a false representation made" by the defendant, with a view that the plaintiff should use the instrument in a dangerous way ; and, unless the representation had been made, the dangerous act would never have been done. If this view of the law be correct, there is no doubt but that the facts which upon this record must be taken to have been found by the jury bring this case within the principle referred to. The defendant has knowingly sold the gun to the father, for the purpose of being used by the plaintiff by loading and discharging it, and has knowingly made a false warranty that it might be safely done, in order to effect the sale ; and the plaintiff, on the faith of that warranty, and believing it to be true, (for this is the meaning of the term confiding), used the gun, and thereby sustained the damage which is the subject of this complaint. The warranty between these parties has not the effect of a contract ; it is no more than a representation; but it is no less. The delivery of the 1 3 T. R. 51 ; snpra, p. 473. sect. iv.J Langridge v. Levy. 479 gun to the father is not, indeed, averred, but it is stated that, by the act of the defendant, the property was transferred to the father, in order that the son might use it ; and we must intend that the plaintiff took the gun with the father's consent, either from his possession or the defendant's ; for we are to presume that the plaintiff acted lawfully, and was not a trespasser, unless the contrary appear. We therefore think, that as there is fraud, and damage, the result of that fraud — not from an act remote and consequential, but one con- templated by the defendant at the time as one of its results — the party guilty of the fraud is responsible to the party injured. We do not decide whether this action would have been maintainable if the plaintiff had not known of and acted upon the false representa- tion ; nor whether the defendant would have been responsible to a person not within the defendant's contemplation at the time of the sale, to whom the gun might have been sold or handed over. We decide that he is responsible in this case for the consequences of his fraud whilst the instrument was in the possession of a person to whom his representation was either directly or indirectly communicated, and for whose use he knew it was purchased. Rule discharged. [Editor's Note. The case was carried, by a writ of error, to the Exchequer Chamber, and the decision was there affirmed (4 M. & W. 337). Lord Hatherley (see Barry v. Croskey, 2 Johnson and Hemming, at pp. 18, 23) regarded this decision as turning on the fact that the representation was made with a view that the plaintiff shonld be one of the persons acting upon it ; so that the case would have been materially altered, had the injured person been some mere stranger who had found the gun lying idle, and had taken it up and fired it, and been hurt thereby. (Cf. Peek v. Gurney, infra, p. 480.) Lord Esher's criticism of Langridge v. Levy may be seen in Heaven v. Pender (L. B. 11 Q. B. D., at pp. 511-512): where he even suggests that the plaintiff might have recovered on the bare ground of Negligence, altogether irrespectively of the representation.] See also Polhill v. Walter, infra, p. 497. 480 Select Gases on the Law of Torts. [part ii. [But the person injured cannot sue unless he were one of those whose conduct the false statement was intended to influence. A company's prospectus is usually intended to influence only the original allottees.~\ PEEK v. GURNEY. House of Lobds. 1873. L.R. 6 H.L. 377. Appeal against a decree of the Master of the Rolls, by which the appellant's bill had been dismissed with costs. The appellant, when the Overend & Gurney Company was ordered to be wound up, was the holder therein of 2000 shares, in respect of which he was placed on the list of contributories, and his liability to be so was confirmed by a decision of this House 1 .... The company was formed in July, 1865, and the prospectus then issued. The business was begun on the 1st of August, 1865. The appellant was not an original allottee, but purchased his shares in the market in the months of October and December of that year. On the 10th of May, 1866, the company stopped payment. On the 11th of June a resolution was passed to have a voluntary winding- up, and on the 22nd of June the usual order for such winding-up, under supervision of the Court, was made. The appellant who had been by this House, in July, 1867, declared to be liable as a con- tributory, and had paid nearly £100,000 on his shares under this winding-up, filed his bill in March, 1868, against the then directors, and against the executors of Thomas Augustus Gibb, who had been a director at the time of issuing the prospectus, but had died in November, 1866. The bill alleged misrepresentation of facts and concealment of facts on the part of the directors, in the prospectus they issued, by which the appellant had been induced to purchase shares and had been damnified ; and he sought indemnity from the estates of the directors. The Master of the Rolls had held that if he had been an original allottee, and ha4 come in due time, he would have been entitled to such indemnity, but that he was debarred of his remedy on the grounds, first, that he was in no better position than the allottee from whom he had bought, and secondly, that he had come too late for relief. The bill was therefore dismissed with costs 2 . Against that dismissal this appeal was brought Kay, Q.C., for appellant. Fraud is clearly established by the 1 L. E. 2 H. L. 325. s L. E. 13 Eq. 79. sect, iv.] Peek v. Gurnet/. 481 evidence in this case ; but actual fraud is not necessary in order to give a ground for relief in equity. The statements in the prospectus were not only calculated, but were intended, to deceive. These state- ments were made, and meant, to have effect on all who should read the prospectus ; and there was no thought of limiting the effect of that pro- spectus within a certain time, or of confining it to a certain class of readers. The object of those who framed it was the reverse. The allottees would, of course, be those who were first deceived by it, but the intention to deceive was not confined to them alone. Those who purchased from these first allottees would be persons who, like them, were deceived by the misrepresentations in the prospectus ; the circula- tion of which, so far from being confined to the first allottees, was never for one moment suspended, but was pertinaciously kept up.... ******* Loed Chelmsford. . . .The suit is not for the rescission of the contract, but is founded upon the loss the appellant has sustained in consequence of the contract; it is a proceeding similar to an action at law for Deceit The case must be examined with reference to the charge which is made against the respondents of having concealed material facts, by which the appellant alleges that he was deceived and drawn in to the purchase of his shares in the company. It was argued on his behalf that the concealment of material facts which a person is bound to com- municate may be the ground of an action for deceit and of a suit for relief in equity. The concealment in the present case was of the all- important fact of the true state of the affairs of the old firm, which, if they had been disclosed, the wildest speculator would have turned away from a proposal to build a company on such a foundation. That there was a moral obligation upon the respondents not to put forward a scheme which depended for its success upon keeping the public in ignorance of what ought in fairness to have been made known to them, no one can doubt. It is said that the directors entertained a bona fide belief that the company would be a prosperous and profitable undertaking, and they evinced the sincerity of their belief by all of them becoming holders of shares to a considerable amount. But they knew that the company could not possibly be upheld without the introduction of fresh -capital, and that this fresh capital could only be obtained by concealing the real condition of the old firm. And however they might be convinced that, with additional capital and a careful and prudent management, the affairs of Overend & Gurney might be brought round, and afterwards a profitable business be carried on, yet as this was an experiment which was to be made with the money of other persons as well as their own, they were bound to give all those other persons such information as they themselves possessed, to enable a k. . 31 482 Select Cases on the Law of Torts. [pakt ii. competent judgment to be formed as to the prudence of joining the proposed company. The question, however, is not as to the moral obligation of the respondents, but whether their intentional concealment, from whatever motive, of a fact so material that if it had been made known no com- pany could have been formed, renders them liable to an action for damages, or to the analogous proceeding in equity, by the appellant, who was led by it to purchase shares in the company, by which he has been subjected to a most serious loss. This case is entirely different from suits instituted either to be relieved from, or for the enforcement of, contracts induced by the fraudulent concealment of facts which ought to have been disclosed. Nor does it resemble such cases as Burrowes v. Lock 1 and Slim v. Croucher 2 , where a person making an untrue representation to another, about to deal in a matter of interest upon the faith of that representa- tion, has been compelled to make good his representation, whether he knew it to be false, or made it through forgetfulness of the fact. It is a suit instituted to recover damages from the respondents for the injury the . appellant has sustained by having been deceived and misled, by their misrepresentations and suppression of facts, to become a share- holder in the proposed company, of which they were the promoters. It is precisely analogous to the common law action for deceit, There can be no doubt that Equity exercises a concurrent jurisdiction in cases of this description, and the same principles applicable to them must prevail both at Law and in Equity. I am not aware of any case in which an action at law has been maintained against a person for an alleged deceit, charging merely his concealment of a material fact which he was morally but not legally bound to disclose. The case of Keates v. Earl Gadogan" may be men- tioned as an authority to the contrary. There it was held upon demurrer that an action for deceit would not lie against the owner of a house, who knew it to be in a ruinous and unsafe condition, for not disclosing the fact to a proposed tenant, who wanted the house for immediate occupation. ...Assuming that mere concealment will not be sufficient to give a right of action to a person who, if the real facts had been known to him, would never have entered into a contract, but that there must be something actively done to deceive him and draw him in to deal with the person withholding the truth from him, it appears to me that this additional element exists in the present case. The concealment of the insolvent state of the old firm of Overend & Gurney was absolutely essential towards the formation of the limited company; and the re- spondents not merely were silent as to this important fact, but actively i 10 Ves. 470. 2 1 De G. F. & J. 518. 3 10 C. B. 591. sect.iv.J Peek v. Gurwey, 483 represented that the firm was in such a flourishing condition that the goodwill of the business was worth half a million. It is said that the prospectus is true as far as it goes, but half a truth will sometimes amount to a real falsehood. And I go farther and say, that to my mind it contains a positive misrepresentation. The language of the pro- spectus must be read in the sense in which the respondents must have known it would be understood. In that sense it is not true (as already observed) that the sum of £500,000, the consideration for the business, was paid to the old firm in cash and in shares ; for the whole of it was to be applied in liquidation of the enormous debt of that firm, the existence of which was designedly kept from the public, to whom the prospectus was addressed. I cannot doubt that there was, beyond the passive concealment of the state of the affairs of the old firm, an active misrepresentation of the truth by the respondents, for which they were answerable either at Law or in Equity. ...The last question to be considered is, whether the appellant, who alleges that he purchased his shares upon the faith of the prospectus, has a remedy against the respondents for the misrepresentations which it contains. The appellant contends that the prospectus being addressed to the public for the purpose of inducing them to join the proposed company, any one of the public who is led by it to take shares, whether originally as an allottee or by purchase of allotted shares upon the market, is entitled to relief against the persons who issued the pro- spectus. The respondents on the other hand insist that the prospectus, not being an invitation to the public to- become ultimately holders of shares, but to join the company at once by obtaining allotments of shares, those only who were drawn in by the misrepresentations in the prospectus to become allottees can have a remedy against the respondents. There can be no doubt that the prospectus was issued with the object alleged by the respondents. It is addressed from the temporary offices of the company for allotment and registration of shares. It states how much is to be paid upon application for shares, and how much upon allotment, and how and where the application for shares is to be made; and it gives the form of payment to the bankers and of the receipt to be given by them to the applicant for shares to be allotted. But the learned counsel for the appellant, not denying the original purpose of the prospectus, contended, upon the authority of decided cases, that the prospectus, having reached the hands of the appellant, and he, relying upon the truth of the statement it contained, having been induced to purchase shares, the respondents were liable as for a misrepresentation made to him personally, ...It appears to me that there must be something to connect the 31—2 484 Select Cases on the Law of Torts. [pakt ii. directors making the representation- with the party complaining that he has been deceived and injured by it; as in Scott v. Dixon 1 , by selling a report containing the misrepresentations complained of to a person who afterwards purchases shares upon the faith of it, or as suggested in Gerhard v. Bates*, by delivering the fraudulent prospectus to a person who thereupon becomes a purchaser of shares, or by making an allotment of shares to a person who has been induced by the prospectus to apply for such allotment. In all these cases the parties in one way or other are brought into direct communication ; and in an action the misrepresentation would be properly alleged to have been made by the defendant to the plaintiff. But a purchaser of shares in the market upon the faith of a prospectus which he has not received from those who are answerable for it, cannot by action upon it so connect himself with them as to render them liable to him for the misrepresentations contained in it, as if it had been addressed personally to himself. Lord Cairns We were pressed very much in argument with considerations as to the motives of those who made this statement, and it was pointed out with great accuracy that upon a trial in the nature of a criminal proceeding it had been held that they were not chargeable with that which was laid to their charge in that proceeding. My Lords, I must say that, so far as I understand the case, I entirely agree with the result at which the jury arrived 'in that proceeding. And, strange as it may appear, I think there is a great deal, in the papers before your Lordships, to shew that the gentlemen who formed this company were themselves, judging by the extent to which they embarked their means and continued Ijheir property in the concern, labouring under the impression that this transaction, disastrous as it ultimately turned out, had in it the elements of a profitable commercial undertaking ; and so far as motive is concerned they may be absolved from any charge of a wilful design or motive to mislead or to defraud the public. But in a civil proceeding of this kind all that your Lord- ships have to examine is the question, Was there or was there not misrepresentation in point of fact 1 ? And if there was, however innocent the motive may have been, your Lordships will be obliged to arrive at the consequences which properly would result from what was dbne. . . . How can the directors of a company be liable, after the full original allotment of shares, for all the subsequent dealings which may take place with regard to those shares upon the Stock Exchange ? If the argument of the appellant is right, they must be liable ad infinitum, for I know no means of pointing out any time at which the liability would, in point of fact, cease. Not only so, but if the argument be right, they must be liable, no matter what the premium may be at which the shares may be sold. That premium may rise from time to 1 29 L. J. E. Ex. 62. 2 E. & B. 476. sect, iv.] Peek v. Gv,mey. 485 time from circumstances altogether unconnected with the prospectus, and yet, if the argument be right, the appellant would be entitled to call upon the directors to indemnify him, up to the highest point at which the shares may be sold, for all that he may expend in buying the shares. My Lords, I ask, is there any authority for this proposition ? I am aware of none. . . . Appeal dismissed. [Editor's Note. With this case may usefully be contrasted that of Andrews v. Mockford L. E. [1896] 1 Q. B. 372, which also turned upon a fraudulent pro- spectus ; but was held, on the facts, not to fall within the principle of Peek v. Gurney, because the evidence shewed that the particular prospectus had been issued with the aim of influencing a wider circle than merely that of the allottees.] [The burden of proving that the words did actually mislead the plaintiff lies upon him.] SMITH v. CHADWICK. House of Lords. 1884. L.R. 9 App. Ca. 187. [Action of deceit for fraudulent misrepresentations in a company's prospectus, which had led the plaintiff to take shares. The representa- tion principally relied on was : — " The ironworks can now produce at the rate of 75,000 tons per annum ; the rolling mills will, with some slight alterations, be capable of turning out 90,000 tons per annum. The present value of the turnover or output of the entire works is over £1,000,000 per annum." This last sentence was true if it only meant that the possible turnover described would have that value : but false if it meant that the works actually were producing, or ever had produced, so much iron. Fry, J., gave judgment in favour of the plaintiff; which was reversed by the Court of Appeal 1 . The plaintiff appealed from this reversal.] Romer, Q.G., for plaintiff. The decision of Fry, J., was right and the representation as to the turnover or output would to ordinary men of business mean that the works had actually produced the amount stated, and it was so understood by the plaintiff who took shares on the faith of it. That the statement might have another and less natural meaning does not exonerate the defendants. The burden lay on them to shew that the meaning was what they alleged it was. The 1 See L. B. 20 Ch. D. 27. 486 Select Cases on the Law of Torts. [part ii. defendants' counsel should have asked the plaintiff in cross-examina- tion what meaning he put upon the representation. The person who makes a false representation, in order to induce another to act upon it to his injury, makes a prima facie case against himself that the mis- representation is material ; and the presumption is that the person to whom the representation was made and who acted upon it was in fact deceived by the representation. ******* Earl of Selborne, L.C. In an action of deceit, like the present, it is the duty of • the plaintiff to establish two things : first, actual fraud, (which is to be judged of by the nature and character of the representations made, considered with reference to the object for which they were made, the knowledge or means of knowledge of the person making them, and the intention which the law justly imputes to every man to produce those consequences which are the natural result of his acts) ; and, secondly, he must establish that this fraud was an inducing cause to the contract (for which purpose it must be material, and it must have produced in his mind an erroneous belief, influencing his conduct). All your Lordships are, I believe, agreed in thinking that, of the several representations in this prospectus, by which the appellant alleges himself to have been deceived, only one is material, viz., that as to " the present value of the turnover or output of the entire works " (stated as being "over £1,000,000 sterling per annum"). Of the materiality of that representation there can be no doubt ; and if the appellant was justified in understanding, and did understand it, in the sense insisted upon by his counsel at the bar, it was untrue as well as material. If, in the context in which it stands, it could not be honestly intended or reasonably understood in any other sense, I should think that the appellant's case was made out; although he has contented him- self with swearing, in his answer to the defendants' interrogatories, that he understood the meaning of the words to be "that which they obviously convey," and has professed to be " unable to express in other words what he understood to be the meaning thereof." If, for instance, the material statement had been that Mr Grieve was a director, I should have thought such an answer quite sufficient. But it is other- wise, in my opinion, if the words in the context in which they stand may have been honestly intended to bear another sense (in which they would be true), and might reasonably have been so understood by an intelligent man of business, aware of the current prices at that time of bar and plate iron, and if at the time when that answer was given, the appellant had notice that the defendants, who made the representation, did in fact allege such other sense to be the true one, and the sense which they intended. sect, iv.] Smith v. Chadwick. 487 The sentence is, beyond question, unhappily expressed. And I think its more natural prima facie meaning is that which takes the verb "is" literally, as affirming a present fact, and the words "the present value of the turnover or output " as equivalent to " the present value of the present turnover or output." I cannot however consider the words, in the context in which they stand, to be clear or unam- biguous. In any point of view I do not think that they sufficiently explain themselves. Some reference, at least, to current prices as a basis of valuation must be implied in them. Even on the appellant's construction, " the turnover or output " is a term requiring some further definition. Does it mean the rate of production then actually going on, if extended over a whole year ; or the total production of the past twelve months, estimated at the then present prices ; or the actual yearly production on a series or an average of years ? If the demon- strative article " this " had preceded the words " turnover or output " (instead of the definite article " the ") the sense would clearly be that which the defendants say they intended. After repeatedly considering the words in connection with their context and with the evidence, I think the soundest conclusion is that this sentence was honestly in- tended to be understood as a statement of the value, at the then current prices, of that " turnover or output " of which the works were in the immediately preceding context stated to be "capable"; and that, to an intelligent man of business, who knew what those current prices actually were, and who took the trouble of comparing them with the figures given, they would really convey that meaning. The appellant was an intelligent man of business ; and it does not appear to me to be a hypothesis inconsistent with anything to which he has sworn, that he may have had the requisite knowledge, and may have made use of it, and may have himself understood the representation in this sense, and have intended (in that sense) to challenge its truth. He did expressly challenge the truth of part of the representation, in the antecedent context, as to the capacity of the works. That the defendants would offer that explanation of it, he had (to my mind) clear notice, by their answers to his own interrogatories, sworn or filed on the 12 th of June, 1877. Having such notice, and afterwards answering the defendants' interrogatories in the way that he did, and not attempting in any other way to prove that he was deceived by the representation, I cannot think that he has satisfied the burden of proof which, under those circumstances, was incumbent upon him. The Court of Appeal have so decided. I cannot say that they were wrong. It ought not to be forgotten that the appellant has sworn in precisely the same way as to all the representations which in his pleadings he alleges to be false ; as to some of which your Lordships do not accept his construction, and as to others of which it is certain that he was not deceived by, and did not rely on them. . . . 488 Select Gases on the Law of Torts. [paet ii. Lord Blackburn. ...In Pasley v. Freeman 1 Buller, J., says: "The foundation of this action is fraud and deceit in the defendant and damage to the plaintiffs. And the question is whether an action thus founded can be sustained in a court of law. Fraud without damage, or damage without fraud, gives no cause of action, but where these two concur an action lies.'' Whatever difficulties there may be as to denning what is fraud and deceit, I think no one will venture to dispute that the plaintiff cannot recover unless .he proves damage. In an ordinary action of deceit the plaintiff alleges that, false and fraudulent representations were made by the defendant to the plaintiff in order to induce him, the plaintiff, to act upon them. I think that if he did act upon these representations, he shews damage; if he did not, he shews none. And I think the plaintiff in such a case must not only allege but prove this damage. It is as to what is sufficient proof of this damage that I wish to make my remarks. I do not think it is necessary, in order to prove this, that the plaintiff always should be called as a witness to swear that he acted upon the inducement. At the time when Pasley v. Freeman 1 was decided, and for many years afterwards, he could not be so called. I think that if it is proved that the defendants, with a view to induce the plaintiff to enter into a contract, made a statement to the plaintiff of sudh a nature as would be likely to induce a person to enter into a contract, and it is proved that the plaintiff did enter into the contract, it is a fair inference of fact that he was induced to do so by the state- ment. (In Redgrave v. Surd 1 the late Master of the Rolls is reported to have said it was an inference of law. If he really meant this, he retracts it in his observations in the present case. I think it not possible to maintain that it is an inference of law.) Its weight as evidence must greatly depend upon the degree to which the action of the plaintiff was likely ; and on the absence of all other grounds on which the plaintiff might act. J quite agree that, being a fair inference of fact, it forms evidence proper to be left to a jury as proof that he was so induced. But I do not think that it would be a proper direc- tion to tell a jury that, if convinced that there was such a material representation, they ought to find that the plaintiff was induced by it, unless one of the things which the late Master of the Rolls specified was proved. Nor do I think he meant to say so. I think there are a great many other things which might make, it a fair question for the jury whether the evidence on which they might draw the inference was of such weight that they would draw the inference. And, whenever that is a matter of doubt, I think the tribunal which has to decide the fact should remember that now (and for some years past) the plaintiff can be called as a witness on his own behalf ; and that if he is not so 1 Supra, p. 473. 2 20 Oh. D. 21. sect. iv.J Smith v. Chadwick. 489 called, or being so called does not swear that he was induced, it adds much weight to the doubts whether the inference was a true one. I do not say it is conclusive. [As to the meaning which the plaintiff did actually put upon the representation, I infer that his counsel feared to ask him the question when they examined him in chief], lest he should answer that he did not understand the prospectus as meaning that there had been an actual output during the last year, or at least that he would not swear that he was influenced by his belief in that statement. The counsel for the defendants did not choose, on cross-examination, to risk bringing out of a hostile witness evidence which his own counsel had not brought out in chief. If I am right in the opinion which I have already ex- pressed, that the burthen lay on the plaintiff to prove that he was induced, I think they acted wisely. If the plaintiff had made a prima facie case which required affirmative proof of an answer from the defendants, I think it would be otherwise. It will be observed that this opinion is quite irrespective of what the true construction of the prospectus is. I should think that a reason- able man would give much more weight to a statement of fact that the actual produce of the works had been so much, than to a statement that their productive power was estimated at so much ; and therefore that the statement, if understood as Fry, J., and Lindley, L.J., (and I believe some of your Lordships) think, was material. I should think that a reasonable man reading this prospectus would hardly act on the faith of such an obscure statement without further inquiry. But he might so act. My reason for supporting the judgment of the Court of Appeal is, that I do not think it proved that he did so act. In the case of the misstatement as to Mr Grieve being a director, I think it positively proved that he did not. I may say, though it is not necessary for the decision of the case, that I think, as a matter of law, the motive of the person saying that which he knows not to be true to another, with the intention to lead him to act on the faith of the statement, is immaterial. The defendants might honestly believe that the shares were a capital invest- ment, and that they were doing the plaintiff a kindness by tricking him into buying them. I do not say this is proved ; but if it were, if they did trick him into doing so, they are civilly responsible as for a deceit. And if with intent to lead the plaintiff to act upon it, they put forth a statement which they 'know may bear two meanings, one of which is false to their knowledge, and thereby the plaintiff putting that meaning on it is misled, I do not think they, can escape by saying he ought to have put the other. If they palter with him in a double sense, it may be that they lie like truth ; but I think they lie, and it is a fraud. Indeed, as a question of casuistry, I am inclined to think the 490 Select Cases on the Law of Torts. [part ii. fraud is aggravated by a shabby attempt to get the benefit of a fraud, without incurring the responsibility. But I do not think there is any case made out against the defendants of that sort. There is a third possible case, that a man may make a statement which he intended to mean one thing only, but which negligently and stupidly he sends out in such a shape as to bear another meaning, and the plaintiff acts upon that meaning. On that I need only say that the defendant, in such a case, would have great difficulty in establishing that it was only honest blundering ; but if he did, as for instance, by shewing that his manu- script sent to the printer, contained the word " not," which by some printer's error was omitted in the published prospectus, or that. 10,000 was by a printer's error printed 100,000, which escaped notice in revising the proofs, I should say it was not a fraud, though perhaps gross negligence. But the question whether in such a case there would be any, and if any, what remedy for the party misled, may, I think, safely be left for decision when it arises 1 It never has arisen and I think is not likely ever to arise. It certainly does not arise now. ■Ji Mj. jfc jfc ijkL jfe jk. [Lord Watson concurred : Lord Bramwell dissented.] Appeal dismissed. 1 [Editor's Note. See the next case.] sect, iv.] Berry v. Peek. 491 [The false statement must have been made, not through mere Negligence, however gross, but with actual disregard of Truth.] DERRY v. PEEK. House of Lords. 1889. L.R. 14 App. Cas. 337. Appeal from a decision of the Court of Appeal. The facts are set out at length in the report of the decisions below 1 . For the present report the following summary will suffice : By a special Act (45 & 46 Vict. c. clix.) the Plymouth, Devonport and District Tramways Company was authorized to make certain tramways. By sect. 35 the carriages used on the tramways might be moved by animal power; and, with the consent of the Board of Trade, by steam or any mechanical power for fixed periods and subject to the regulations of the Board. By sect. 34 of the Tramways Act 1870 (33 & 34 Vict. c. 78), which section was incorporated in the special Act, "all carriages used on any tramway shall be moved by the power prescribed by the special Act, and where no such power is prescribed, by animal power only." In February 1883 the appellants as directors of the company issued a prospectus containing the following paragraph : — "One great feature of this undertaking, to which considerable importance should be attached, is, that by the special Act of Parlia- ment obtained, the company has the right to use steam or mechanical motive power, instead of horses, and it is fully expected that by means of this a considerable saving will result in the working expenses of the line as compared with other tramways worked by horses." Soon after the issue of the prospectus the respondent, relying, as he alleged, upon the representations in this paragraph and believing that the company had an absolute right to use steam and other mechanical power, applied for and obtained shares in the company. The company proceeded to make tramways, but the Board of Trade refused to consent to the use of steam or mechanical power except on certain portions of the tramways. In the result the company was wound up. The respondent in 1885 brought an action of deceit against the appellants, claiming damages for the fraudulent misrepresentations of the defendants where- by the plaintiff was induced to take shares in the company. 1 37 Ch. D. 541. 492 Select Cases on the Law of Torts. [part il At the trial before Stirling, J., the plaintiff and defendants were called as witnesses. The effect given to their evidence in this House will appear from the judgments of noble and learned Lords. Stirling, J., dismissed the action ; but that decision was reversed by the Court of Appeal (Cotton, L.J., Sir J. Hannen, and Lopes, L.J.) who held that .the defendants were liable to make good to the plaintiff the loss sustained by his taking the shares, and ordered an inquiry 1 . Against this decision the defendants appealed. . . . Bompas, Q.G., for respondent. ...It is not necessary that there should be carelessness whether the statement is true or not : it is enough if there be carelessness or negligence in making the statement. Making an untrue statement without reasonable ground is negligence which will support an action of deceit.... But even if this is not law, the appellants are nevertheless liable ; for the evidence shews that the statements were made either with the knowledge that they were untrue or with no belief on the subject. It was stated that it was fully expected that a considerable saving would be effected by the use of steam. In fact the directors had not considered the matter, and when they did so afterwards there was a majority of one only in favour of steam. The effect of the evidence is not the same as to all the directors. As to Derry, the inference is that he never took the trouble to consider whether the statement was true or false. "Wakefield and Wilde had complete knowledge but made statements which they knew not to be true at the time, thinking the requisite consents would be given. Pethick's evidence is inconsistent with itself. At one moment he says that he thought the Board of Trade had no right to refuse consent if its reasonable requirements were met, at another that he thought they had an absolute right to refuse. The respondent is entitled to judgment on the grounds accepted by Lord Cranworth in Western Bank of Scotland v. Addie 1 and by the Earl of Selborne in Smith v. Chadwick 3 . The belief which would justify the appellants must be one founded on an exercise of judgment. Grounds which would be sufficient in some cases would not be so in others, where uberrima fides is required, e.g. in statements made to an intending partner. Lord Herschbll : — This is an action of Deceit. Sudh an action differs essentially from one brought to obtain rescission of a contract on the ground of misrepresentation of a material fact. The principles which govern the two actions differ widely. Where rescission is claimed it is only necessary to prove that there was misrepresentation ; 1 37 Oh. D. 541, 591. 2 L. E. 1 H. L. (So.) 145, 164. 3 9 App ; Cas. 187, 190. sect. iv.J Derry v. Peek. 493 then, however honestly it may have been made, however free from blame the person who made it, the contract, having been obtained by misrepresentation, cannot stand. In an action of deceit, on the con- trary, it is not enough to establish misrepresentation alone ; it is con- ceded on all hands that something more must be proved to cast liability upon the defendant, though it has been a matter of controversy what additional elements are requisite. I lay stress upon this because observations made by learned judges in actions for rescission have been cited and much relied upon at the bar by counsel for the respondent. Care must obviously be observed in applying the language, used in relation to such actions, to an action of deceit. Even if the scope of the language used extend beyond the particular action which was being dealt with, it must be remembered that the learned judges were not engaged in determining what is necessary to support an action of deceit, or in discriminating with nicety the elements which enter into it. There is another class of actions which I must refer to also for the purpose of putting it aside. I mean those cases where a person within whose special province it lay to know a particular fact, has given an erroneous answer to an inquiry made with regard to it by a person desirous of ascertaining the fact for the purpose of determining his course accordingly, and has been held bound to make good the assurance he has given. Burrowes v. Lock ' may be cited as an example, where a trustee had been asked by an intended lender, upon the security of a trust fund, whether notice of any prior incumbrance upon the fund had been given to him. In cases like this it has been said that the circumstance that the answer was honestly made in the belief that it was true affords no defence to the action. Lord Selborne pointed out in Brownlie v. Campbell* that these cases were in an alto- gether different category from actions to recover damages for false representation, such as we are now dealing with. One other observation I have to make before proceeding to consider the law which has been laid down by the learned judges in the Court of Appeal in the case before your Lordships. An action of deceit is a common law action, and must be decided on the same principles, whether it be brought in the Chancery Division or any of the Common Law Divisions, there being, in my opinion, no such thing as an equitable action for deceit. ...I think the authorities establish the following propositions: First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, care- 1 10 Ves. 470. 2 5 App. Cas. at p. 935. 494 Select Cases on the Law of Torts. [part II. less 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 statement 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 knowingly 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. I think these propositions embrace all that can be supported by decided cases from the time of Pasley v. Freeman* down to Western Bank of Scotland v. Addie 2 in 1867, when the first suggestion is to be found that belief in the truth of what he has stated will not suffice to absolve the defendant if his belief be based on no reasonable grounds. I have shewn that this view was at once dissented' from by Lord Cranworth, so that there was at the outset as much authority against it as for it. And I have met with no further assertion of Lord Chelmsford's view until the case of Weir v. Bell 3 , where it seems to be involved in Lord Justice Cotton's enunciation of the law of deceit. But no reason is there given in support of the view, it is treated as established law. The dictum of the late Master of the Rolls that a false statement made through carelessness, which the person making it ought to have known to be untrue, would sustain an action of deceit, carried the matter still further. But that such an action could be maintained, notwithstanding an honest belief that the statement made was true, if there were no reasonable grounds for the belief, was, I think, for the first time decided in the case now under appeal. In my opinion making a false statement through want of care falls far short of, and is a very different thing from, fraud ; and the same may be said of a false representation honestly believed though on in- sufficient grounds. Indeed Cotton, L.J., himself indicated, in the words I have already quoted, that he should not call it fraud. But the whole current of authorities, with which I have so long detained your Lordships, shews to my mind conclusively that fraud is essential - to found an action of deceit, and that it cannot be maintained where the acts proved cannot properly be so termed. I am. unable to hold that anything less than fraud will render directors or any other persons liable to an action of deceit. At the same time I desire to say distinctly that, when a false state- ment has been made, the questions whether there were reasonable grounds for believing it, and what were the means of knowledge in the possession of the person making it, are most weighty matters for con- 1 Supra, p. 473. 2 L. E. 1 H. L., So. 145. 3 3 Ex. D. 238. sect, iv.] Derry v. Peek. 495 sideration. The ground upon which an alleged belief was founded is a most important test of its reality. I can conceive many cases where the fact that an alleged belief was destitute of all reasonable foundation would suffice of itself to convince the Court that it was not really enter- tained, and that the representation was a fraudulent one. So, too, although means of knowledge are, as was pointed out by Lord Blackburn in Brownlie v. Campbell 1 , a very different thing from know- ledge, if I thought that a person making a false statement had shut his eyes to the facts, or purposely abstained from inquiring into them, I should hold that honest belief was absent, and that he was just as fraudulent as if he had knowingly stated that which was false. I have arrived with some reluctance at the conclusion to which I have felt myself compelled. For I think those who put before the public a prospectus to induce them to embark their money in a com- mercial enterprise ought to be vigilant to see that it contains such representations only as are in strict accordance with' fact, and I should be very unwilling to give any countenance to the contrary idea. I think there is much to be said for the view that this moral duty ought to some extent to be converted into a legal obligation ; and that the want of reasonable care to see that statements, made under such circumstances, are true, should be made an actionable wrong. But this is not a matter fit for discussion on the present occasion. If it is to be done, the legislature must intervene and expressly give a right of action in respect of such a departure from duty. It ought not, I think, to be done by straining the law, and holding that to be fraudulent which the tribunal feels cannot properly be so described. I think mischief is likely to result from blurring the distinction between care- lessness and fraud, and equally holding a man fraudulent whether his acts can or Cannot be justly so designated. ...I quite admit that the statements of witnesses as to their belief are by no means to be accepted blindfold. The probabilities must be considered. Whenever it is necessary to arrive at a conclusion as to the state of mind of another person, and to determine whether his belief under given circumstances was such as he alleges, we can only do so by applying the standard of conduct which our own experience of the ways of men has enabled us to form ; by asking ourselves whether a reasonable man would be likely under the circumstances so to believe. I have applied this test ; with the result that I have a strong conviction that a reasonable man situated as the defendants were, with their knowledge and means of knowledge, might well believe what they state they did believe, and consider that the representation made was substantially true. Adopting the language of Jessel, M.R., in Smith v. Chadmick 1 , I i 5 App. Cas. at p. 952. 2 20 Ch. D. at p. 67. 496 Select Oases on the Law of Torts. [pabt ii. conclude by saying that on the whole I have come to the conclusion that the statement, " though in some respects inaccurate and not alto- gether free from imputation of carelessness, was a fair, honest and bona fide statement on the part of the defendants, and by no means exposes them to an action for deceit." [Lords Halsbury, "Watson, Bramwell, and Fitzgerald concurred.] Order of Stirling, J., restored. [Editor's Noie. This case, as was tersely said by Lord Bowen, in Le Lievre v. Gould [1893] 1 Q. B. 491, "decided that you cannot succeed in an action of fraud without proving that the defendant was fraudulent. It is singular that any doubt should ever have been cast upon that proposition." The Legislature, however, proceeded at once to pass the Directors' Liability Act, 1890 (53 & 54 Vict. c. 64), which renders not merely belief, but also reasonable grounds for belief, necessary in the particular case of any prospectus or notice with regard to a Company. But this, of course, leaves the ruling in Derry v. Peek still in force as a general legal principle. The principle, however, it must be remem- bered, does not apply "where there is a legal obligation on the part of the defendant, towards the plaintiff, to give him' correct information. If such an obligation exists, an action for damages will (I apprehend) lie for its non- performance, even in the absence of fraud"; the road (not at any ordinary crossing-place) in front of the omnibus, but, alarmed by the approach of another vehicle from the opposite direction, turned back, and was knocked down and run over by the omnibus before she could regain the pathway, and so injured that she died. The defendant's omnibus was on its right side, and within seven or eight feet of the kerb. The only circumstance which was at all suggestive of negligence on the part of the defendant's servant, was, that, though he saw the woman cross in front of his omnibus, he had (at the moment they turned back) looked round to speak to the conductor, and was not aware of their danger until warned by the cry of a bystander, but too late to avert the mischief. It was proved on the part of the plaintiff, that the deceased had by her industry contributed to the extent of about 10s. weekly towards the maintenance of the family. On the part of the defendant it was submitted that there was no evidence to go to the jury of actionable negligence on the part of the defendant's servant. Of this opinion was the learned judge, Willes, J. : but, to avoid the necessity of going down again if the court should think otherwise, he left the case to the jury, who returned a verdict for £25, — £10 for the plaintiff himself, and £15 for the children.... Thomas, Serjt., and Grijfts, now shewed cause. They submitted that the fact of the driver permitting his attention to be called from his horses for a moment in a crowded thoroughfare was amply sufficient to justify the jury in finding negligence ; and, they having by their verdict affirmed negligence, the court would not interfere Montagu Chambers was not called upon to support the rule. sect. iv.J Cotton v. Wood. 549 Erle, C.J. I am of opinion that this rule must be made absolute to enter a nonsuit. The plaintiff is not entitled to succeed unless there be affirmative proof of negligence on the part of the defendant or his servant ; and there can be no such proof, unless it be shewn that there existed some duty owing from the defendant to the plaintiff, and that there has been a breach of that duty. Now, I am utterly at a loss to find any evidence of any breach of duty here. It is as much the duty of foot-passengers attempting to cross a street or road to look out for passing vehicles as it is the duty of drivers to see that they do not run over foot-passengers. Where it is a perfectly even balance upon the evidence whether the injury complained of has resulted from the want of proper care on the one side or on the other, the party who founds his claim upon the imputation of negligence fails to establish his case. According to the evidence, the plaintiff's wife, on a dark night, and in a snow-storm, proceeded slowly,, accompanied by another female, to cross a crowded thoroughfare, whilst the defendant's omnibus was coming up on the right side of the road, and at a moderate pace, and with abundant time as far as I can judge for the women to get safe across if nothing else had intervened. But, in turning back to avoid another vehicle, they returned and unfortunately met the danger. What, then, is the ground for imputing negligence and breach of duty to the defendant's servant? .One of the plaintiff's witnesses stated that the driver was looking round at the time to speak to the conductor. That alone clearly would be no affirmative proof of negligence. The man was driving on his proper side, and I do not find it imputed to him that he was driving at an improper pace. As far as the evidence goes, there appears to me to be just as much reason for saying that the plaintiff's wife came negligently into collision with the defendant's horses and omnibus as for saying that the collision was the result of negligence on the part of the defendant's servant. Pollock, C.B., in a case of Williams v. Richards 1 , laid it down that "it is the duty of persons who are driving over a crossing for foot-passengers, which is at the entrance of a street, to drive slowly, cautiously, and carefully ; but it is also the duty of a foot-passenger to use due care and caution in going upon a crossing at the entrance of a street, so as not to get among the carriages, and thus receive injury." And I think I have known that to have been since followed by more judges than one. In Toomey v. The London, Brighton, and South Coast Railway Company*, which was an action against a railway company for negligence, the facts were these : — On the platform of the station there were two doors in close proximity to each other ; the one, for necessary purposes, had painted over it the words "For gentlemen," the other had over it the words "Lamp-room." The » 3 C. & K. 81. 2 3 C. B., N. S. 146. 550 Select Cases on the Law of Torts. [part ii. plaintiff, having occasion to go to the urinal, inquired of a stranger where he should find it, and, having received a direction, by mistake opened the door of the lamp-room, and fell down some steps and was injured. It was held by this court, that, in the absence of evidence that the place was more than ordinarily dangerous, the judge was justified in nonsuiting the plaintiff, on the ground that there was no evidence of negligence on the part of the company. My Brother Williams there said : " It is not enough to say that there was some evidence ; for, every person who has had any experience in courts of justice knows very well that a case of this sort against a railway company could only be submitted to a jury with one result. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, clearly would not justify the judge in leaving the case to the jury : there must be evidence upon which they might reasonably and properly conclude that there was negligence." And that was adopted by Bramwell, B., in the case of Cornman v. Tlie Eastern Counties Railway Company 1 . The very vague use of the term "negligence" has led to many cases being left to the jury in which I have been utterly unable to find the existence of any legal duty, or . any evidence of a breach of it. I am clearly of opinion that the plaintiff has failed to make out any cause of action here, and consequently the rule for entering a nonsuit must be made absolute Williams, J. I wish merely to add, that there is another rule of the law of evidence, which is of the first importance, and is fully established in all the courts, viz. that, where the evidence is equally consistent with either view, — with the existence or non-existence of negligence, — it is not competent to the judge to leave the matter to the jury. The party who affirms negligence has altogether failed to establish it. That is a rule which ought never to be lost sight of. The rest of the court concurring, Rule absolute. [Editob's Note. The student may refer to The East Indian Ry. Co. v. Kalidas Mukerjee, L. E. [1901] A. 0. 396, where a railway passenger in a smoking carriage had been burned by the explosion of fireworks brought into this carriage by a fellow- passenger. It would have been negligence in the railway company to permit knowingly the introduction of such a parcel. But the mere fact that the company had failed to detect the nature of the parcel was no proof that they had been negligent by so failing. It was for the plaintiff to prove that the parcel was a suspicious-looking one ; not for the company to give proof that it was not.] 1 4 H. & N. 781. sect, iv.] Hammock v. White. 551 [Facts which are not sufficient to prove Negligence in a Rider.] HAMMACK v. WHITE. Court of Common Pleas. 1862. 11 C.B., N.S. 588. This was an action upon Lord Campbell's Act, 9 & 10 Vict. c. 93, by Mrs Hammack, the widow and administratrix of William Hammack, to recover damages against the defendant for having by his negligence caused the death of the intestate. , The declaration alleged that the deceased, in his life-time, was lawfully passing in and along a certain common and public highway, and that the defendant so carelessly, negligently, and improperly rode a certain vicious horse in the said highway, that, by and through the carelessness, negligence, and improper conduct of the defendant in that behalf, the said horse ran with great force and violence upon and against the deceased, and cast and threw him down and so injured him that the deceased died. The defendant pleaded not guilty ; whereupon issue was joined. The cause was tried before the Recorder of London in the Lord Mayor's Court, when the following facts appeared in evidence : — On the 7th of May, 1861, the deceased was walking on the foot- pavement in Finsbury Circus, when he was knocked down and kicked by a horse on which the defendant was riding. He was picked up and carried to St Bartholomew's Hospital, where he died on the 16th from the injuries. The defendant had bought the horse at Tattersall's, and had taken it out to try it, when the horse became unmanageable and swerved from the roadway on to the pavement, notwithstanding the defendant's efforts to restrain him. It did not appear that the defendant had omitted to do anything he could have done to prevent the accident: but it was insisted on the part of the plaintiff, that the mere fact of the defendant's having ridden in such a place a horse with whose temper he was wholly unacquainted, was evidence of negligence. Some reliance was also placed upon the fact of there being certain police-notices affixed at various parts of the Circus, cautioning all persons not to exercise horses there. The learned Recorder, being of opinion that there was nothing in the evidence to warrant a jury in finding that the defendant had been and were entitled to the exercise of reasonable care on the part of persons driving carriages along it. Verdict for the plaintiff — Damages £20. sect, iv.] Gee v. The Metropolitan Ry. Go. 573 [i\ or is it Negligence in a railway passenger to lean on the carriage- window.] GEE v. THE METROPOLITAN RY. CO. Exchequer Chamber. 1873. L.R. 8 Q.B. 161. Declaration that the plaintiff was a passenger on defendants' rail- way to be safely carried ; that defendants so negligently conducted themselves in carrying plaintiff and managing the carriage in which plaintiff travelled, that plaintiff fell out and was injured.... [The plaintiff was a passenger by the defendants' train, and, as it was passing from one station to another, he rose from his seat with a view of looking out of the window and took hold of the bar of the window and pressed against it. The pressure, such as it was, of some part of his body, upon his taking hold of the bar, caused the door to open, and the motion of the train to throw him out of the carriage, whereby he sustained the injury complained of.] At the conclusion of the plaintiff's case, it was submitted on behalf of the defendants that the plaintiff was not entitled to recover, and the Chief Justice reserved to the defendants leave to move to enter a -verdict for them or a nonsuit. The defendants did not offer any evidence, and the plaintiff then had a verdict for X250 1 . A rule was obtained to enter the verdict for the defendants on the ground that there was no evidence of liability. ******* M. Chambers, Q.C., for def endants. . . . If the plaintiff had sat still in his place in the carriage, the company would have carried him safely. He must shew that their negligence was the immediate cause of the injury ; whereas the whole mischief resulted from his own act [The rule having been discharged by the Court of Queen's Bench, the defendants appealed to the Exchequer Chamber.] ■jfe 7^ vfc V V flr * Kelly, C.B Was there any evidence of negligence at all on the part of the defendants 1 I am of opinion that there was evidence for the jury to consider, -whether the defendants' servants had not, when this train left the station from which it started on its journey, failed to see that the door was properly fastened in the ordinary manner in which such railway carriage doors are fastened. There was evidence to go to the jury that they had failed in the performance of that duty. 1 It appeared that the Chief Justice left two questions to the jury-: first, whether there was negligence on the part of the defendants in not properly fastening the 'door; secondly, whether therer was negligence or improper or imprudent conduct on the part of the plaintiff. 574 Select Cases on the Law of Torts. [part ii. But the preliminary question arises, is it their duty 1 I am of opinion that it is — that it is the duty of the railway company, by their servants, before the train starts upon its journey, to see that the door of every carriage is properly fastened. Here was evidence that this door was not properly fastened : for if it had been, it would not have flown open upon the degree of pressure that was applied to it by the plaintiff ; and therefore there was evidence to go to the jury, upon which they were justified in finding negligence on the part of the defendants. But then, I agree, we must go further, and inquire whether there was evidence of "liability'': in other words, whether there was evi- dence also that this negligence of the company was the cause of the mischief which occurred to the plaintiff. I am of opinion that there was evidence. Certainly the mischief would not have befallen him if that door had been properly fastened. The question is, therefore, whether he did anything which it was not lawful for him to do, and which we should be satisfied, taking the whole evidence together, was the cause of the mischief which befel him. If he did, I agree that the case fails on the part of the plaintiff. But why 1 Because, though he has proved that the defendants were guilty of negligence, he has not proved that that negligence was the cause of the mischief which befel him. The question of what has been termed contributory negligence does not, in my opinion, arise : because I am clearly of opinion upon the facts that there was no evidence of contributory negligence. ...On the facts that are before us, then, the questipn is, whether there was evidence of negligence on the part of the company which caused the accident. I have already shewn that there was evidence of negli- gence ; and that there was evidence to go to the jury that their leaving the door not properly fastened was the cause of the injury which the plaintiff sustained without any improper act on the part of the plaintiff. Because I am of opinion that any passenger in a railway carriage, who rises for the purpose either of looking out of the window, or of dealing with (and touching, and bringing his body in contact with) the door for any lawful purpose whatsoever, has a right to assume, and is justified in assuming, that the door is properly fastened ; and if, by reason of its not being properly fastened, his lawful act causes the door to fly open, the accident is caused by the defendants' negligence. ******* Judgment affirmed. sect. iv. j Tuff v. Warman. 575 [If the plaintiff's negligence could have been obviated by ordinary care on the defendant's part, then the defendant's negligence is the proximate cause of the damage.] TUFF v. WARMAN. Court of Common Pleas. 1857. 2 C.B., N.S. 740. This was an action in which the defendant was charged with having so negligently navigated a steam-vessel in the river Thames as to run against and damage the barge of the plaintiff. The defendant pleaded, — first, not guilty, — secondly, that he had not the control or management of the steamer. The cause was tried before Willes, J. The defendant was in charge of a steam-vessel called the Celt, as pilot, coming up the river, some miles below Gravesend. The plaintiff's sailing-barge was proceeding with a fair wind down the river, having two men on board, one of whom was at the helm. It did not appear where the other was ; but it was clear that they kept no look-out. For the man at the helm stated that, the sail being in his way, he could not see forward without stooping ; and he admitted, that, although he saw the steamer coming when a considerable distance off, he did not look out again until she was within two or three yards of him, and when , it was too late to avoid the collision. The steamer, it appeared, was on her right side, according to the Admiralty regulations. The defendant stated that he was standing on the poop of the steamer, and saw the barge when about 300 yards distant, and immediately ported his helm; that, if the barge had done the same, the collision would have been avoided ; that he thought the barge put her helm a-starboard ; and that, finding a collision inevitable, he put his helm hard a-port, and backed his engines, but too late. The defendant's evidence was corroborated by that of the captain and the mate of the steamer. On the other hand, two seamen, who were on board a yawl, and who saw the whole transaction, distinctly swore that the steamer's helm was not ported. On the part of the defendant, it was insisted that the plaintiff was not entitled to recover, inasmuch as he had failed to comply with the sailing regulations enforced by the statute 17 & 18 Vict. c. 104, ss. 296, 297, 298 ; and that, assuming that the defendant had been guilty of negligence, still, if there was any negligence on the part of the plaintiff, he could not maintain the action. In leaving the case to the jury, the learned judge told them, that, if both parties were equally to blame, and the accident the result of their joint negligence, the plaintiff could not be entitled to recover ; that, if the negligence or default of the plaintiff was in any degree the 576 Select Gases on the Law of Torts. [part II. proximate cause of the damage, he could not recover, however great may have been the negligence of the defendant ; but that, if the negli- gence of the plaintiff was only remotely connected with the accident, then the question was whether the defendant might not by the exercise of ordinary care have avoided it ; that, as the people on board the plaintiff's barge were keeping no look-out, the defendant should have gone to starboard, or reversed his engines, and so avoided the collision. He referred for an illustration to the case of Davies v. Mann 1 . And he concluded thus, — " Do you consider that the absence of a look-out was negligence on the part of the plaintiff? If so, you will consider whether it directly contributed to the accident. If you think that the plaintiff directly contributed to the accident, you will find for the defendant; but, if you think that the defendant by his negligence directly caused the injury, you must find for the plaintiff." The jury returned a verdict for the plaintiff, damages £106. Collier, Q.C., obtained a rule nisi for a new trial on the ground of misdirection on the subject of negligence, and that the verdict was against evidence. ******* Cockburn, C.J. This rule should be discharged. As to the verdict being against the evidence, my Brother Willes, who tried the cause, reports to us not only that he was not dissatisfied with the conclusion the jury came to, but that he thinks the verdict was right : under these circumstances, therefore, the rule cannot be sustained on that ground. As to the other ground, I have satisfied myself that the direction of the judge was right. The first objection to the summing up is, that it was left to the jury to say whether the plaintiff had by his own negligence directly contributed to the result : and it was contended, that, looking at the 296th and 298th sections of the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, the case as to this part of it 1 [Editor's Note. 10 M. &W. 546. In this action — which Lord Campbell, C.J. , calls " the often-quoted Donkey Case " — the facts were these. The plaintiff, having tethered the forefeet of his donkey, turned it on a public highway, eight yards wide. Here the donkey remained, and was grazing on the side of the road, when the defendant's waggon and horses, coming down a slight descent at a smart pace, ran against it, and hurt it. The driver of the waggon was careless in being some distance behind his horses whilst they were going so fast. The judge told the jury that the plaintiff's negligence in leaving the tethered donkey on the public highway was no answer to the action, unless the donkey's being there was the immediate cause of the injury. The Court of Exchequer held that as the defendant might, by proper care, have avoided injuring the animal, he was liable for the consequence of his negligence, though the animal were there through the faulty act of the plaintiff. For that fault was connected with the injury only remotely ; and not as its proximate cause.] sect, iv.] Tuff v. Warman. 577 should have been left to the jury independently of the question of the plaintiff's having been contributory to the accident.... But all that the statute has done, is, to bring within the category of negligence the non-observance of the regulations prescribed by s. 296 ; so that, in the event of accident arising from such non- observance, the case stands precisely the same as it did before, and the question is to be tried by the ordinary rules. That being so, I think the direction was right, and that the true question in these cases, is, whether, the damage having been occasioned by the negligence of the defendant, the negligence of the plaintiff has directly contributed to it ; and I think that, in this case, if the defendant could have made out negligence on the part of the plaintiff, that would have been an answer to the action. The way in which it was put on the part of the defendant was this, that, by his own negligence in omitting to keep any look-out, the plaintiff contributed to the accident. If that had been established to the satisfaction of the jury, the plaintiff would have been directly contributory, and the defendant would have been entitled to a verdict. That question was left to the jury, with such observations as suggested themselves to the learned judge. There being no misdirection, therefore, and the learned judge not being dissatisfied with the verdict, we see no ground for disturbing it. ******* Williams, J After well considering the case of Dowell v. The General Steam- Navigation Company 1 , I am unable to distinguish the mode of directing the jury here from that which the Court of Queen's Bench sustained there. The law was there laid down, in conformity with several previous decisions, that, if the negligence or default of the plaintiff was in any degree the proximate cause of the damage, he cannot recover, however great may have been the negli- gence of the defendant : but that, if the negligence of the plaintiff was only remotely connected with the accident, then the question is whether the defendant might not by the exercise of ordinary care have avoided it. So far the doctrine of the cases is perfectly plain. But then comes the question, what is meant by the negligence of the plaintiff being proximately (or directly) contributory, or only remotely connected with the accident? And that is a question which must somehow or other he disposed of at the trial. I dissent entirely from the proposition urged by Mr Collier, that the plaintiff is disentitled to recover if his negligence is either proximately or remotely connected with the accident. But I feel great difficulty in dealing with the question whether the negligence was proximate or remote : and I certainly feel great difficulty in getting rid of that question of law by leaving it to the jury. That, however, was the course adopted in the 1 5 Ellis & Blackburn 195. K. 37 578 Select Cases on the Law of Torts. [part ii. case of Dowell v. The General Steam-Navigation Company, and followed by my Brother Willes upon this occasion 1 . I will not attempt to controvert or dispute the propriety of that now, however much I may lament that the law is not on a more intelligible and satisfactory footing in this respect. It was further objected that, when the matter came to be left to the jury, it should have been left to them to say whether they thought the defendant might by exercising ordinary care and diligence have avoided the accident. It seems to me that that was in effect left to them.... Rule discharged. [Editor's Note. On appeal, this decision was affirmed by the Exchequer Chamber; 5 C. B., N. S. 573.] [The plaintiff's own negligence affords no defence unless it formed 'part — not of the inducing causes but — of the proximate cause of the damage.] RADLEY AND BRAMALL v. THE LONDON AND NORTH WESTERN RY. CO. House of Lords. 1876. L.R. 1 A.C. 754. Appeal against a decision of the Court of Exchequer Chamber. The appellants were the plaintiffs in an action brought in the Court of Exchequer, in which they claimed to recover damages for the destruction of a bridge occasioned, as they alleged, by the negligence of the defendants' servants [The material facts were stated by Bramwell, B., in the Court of Exchequer as follows : — The plaintiffs are colliery owners, who have sidings out of and on one of the defendants' lines ; over these sidings is a bridge belonging to the plaintiffs with a headwsfy of eight feet. It has been the course of business between the plaintiffs and defendants for the defendants to take from these sidings the plaintiffs' waggons loaded with coals and deliver or leave them at their destination; also to. collect the plaintiffs' waggons when empty, and bring them to the sidings, and then leave them. When the waggons were so left on the sidings the plaintiffs dealt with them as they thought fit ; i.e. took them to the pit to be loaded in such order and at such times as they pleased, or took them to their workshops if they needed repair. On a certain Saturday, after 1 [Editor's Note. And now followed invariably. For, though the question may be extremely subtle, it is one of Fact and not of Law.] sect, iv.] Radley & Bramall v. London & N. W. Ry. Co. 579 working hours, when the men were gone and the plaintiffs could only move them as they might on a Sunday, (i.e. by some special engagement of workmen), the defendants brought and left on one of the plaintiffs' sidings some empty waggons of the plaintiffs, and a waggon empty except that it had on it a waggon of the plaintiffs which had broken down and could not travel, and had to be brought in this way to the plaintiffs. The waggon so loaded was, with its load, eleven feet high, and therefore could not pass under the bridge. It remained where so left. On the next Sunday night, after dark, the defendants brought in a very long train of the plaintiffs' empty waggons, and pushed it on the siding where this waggon loaded with the disabled waggon was. It was pushed as far as the bridge. Had it been empty it, would have passed underneath. (Probably the defendants had often pushed waggons in this way under the bridge ; though there was evidence to shew they had been requested not to push things on the siding beyond a public highway, which was some distance before getting to the bridge in the direction from which the defendants brought the train of empty waggons. This is, perhaps, of no moment.) But the waggon so loaded coming to the bridge, and being unable to pass underneath, the train stopped. Those who had charge of it, without looking to ascertain the cause of the stoppage, gave momentum to the engine to such an extent that the waggon with its load knocked the bridge down.] ...At the trial, Mr Justice Brett told the jury that "You must be satisfied that the plaintiffs' servants did not do anything which persons of ordinary care, under the circumstances, would not do, or that they omitted to do something which persons of ordinary care would do. . . . It is for you to say entirely as to both points. But the law is this, the plaintiffs must have satisfied you that this happened by the negligence of the defendants' servants, and without any contributory negligence of their own ; in other words, that it was solely by the negligence of the defendants' servants. If you think it was, then your verdict will be for the "plaintiffs. If you think it was not solely by the negligence of the defendants' servants, your verdict must be for the defendants'." The jurors having, on this direction, stated that they thought there was contributory negligence on the part of the plaintiffs, the learned judge directed that the verdict should be entered for the defendants, but reserved leave for the plaintiffs to move. A rule having been obtained for a new trial, it was, after argument before Barons Bramwell and Amphlett, made absolute 2 . On appeal to the Exchequer Chamber the decision was, by Justices Blackburn, Mellor, Lush, Brett, and Archibald (diss. Justice Denman), reversed 3 : This appeal was then brought. ******* 1 Printed papers in the case. * L. R. 9 Ex. 71. 3 L. B. 10 Ex. 100. 37—2 580 Select Gases on the Law of Torts. [pakt ii. Lord Penzance The law in these cases of negligence is, as was said in the Court of Exchequer Chamber, perfectly well settled and beyond dispute. The first proposition is a general one, to this effect, that the plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him. This proposition, as one of law, cannot be questioned. It was decided in the case of Daviet v. Mann 1 , supported in that of Tuff v. Warman 2 and other cases, and has been universally applied in cases of this character without question. The only point for consideration, therefore, is whether the learned judge properly presented it to the mind of the jury. It seems impossible to say that he did so. At the beginning of his summing-up he laid down the following as the propositions of law which governed the case : It is for the plaintiffs to satisfy you that this accident happened through the negligence of the defendants' servants ; and as between them and the defendants, that it was solely through the negligence of the defendants' servants. They must satisfy you that it was solely by the negligence of the defendants' servants, or, in other words, that there was no negligence on the part of their servants contributing to the accident ; so that, if you think that both sides were negligent, so as to contribute to the accident, then the plaintiffs cannot recover. This language is perfectly plain and perfectly unqualified, and in case the jurors thought there was any contributory negligence on the part of the plaintiffs' servants, they could not, without dis- regarding the direction of the learned judge, have found in the plaintiffs' favour, however negligent the defendants had been, or however easily they might with ordinary care have avoided any accident at all. . . .It is true that in part of his summing-up the learned judge pointed attention to the conduct of the engine-driver, in determining to force his way by violence through the obstruction, as fit to be considered by the jury on the question of negligence ; but he failed to add that if they thought the engine-driver might at this stage of the matter by ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering. 1 10 M. & W. 546, ; of. p. 576, supra. 2 Supra, p. 575. sect. iv.J Badley & Bramall v. London & N. W. Ry. Co. 581 In point of fact the evidence was strong to shew that this was the immediate cause of the accident, and the jury might well think that ordinary care and diligence on the part of the engine-driver would, notwithstanding any previous negligence of the plaintiffs in leaving the loaded-up truck on the line, have made the accident impossible. This substantial defect of the learned judge's charge is that that question was never put to the jury. * * * * * * * New trial ordered. [Contributory negligence on the part of the persons navigating a ship is not to be treated as contributory negligence in the passengers themselves.] MILLS v. ARMSTRONG. The "Bernina." House of Lords. 1888. L.R. 13 A.C. 1. Appeal from a decision of the Court of Appeal, reported as The Bernina (No. 2) in L.R. 12 P.D. 58. The facts appeared in a special case stated for the opinion of the court in three actions in personam brought in the Admiralty Division against the owners of the steamship Bernina ; who were the appellants in this appeal. In September, 1884, a collision occurred between the Bernina and the steamship Bushire, the result of which was that J. H. Armstrong, first engineer of the Bushire, T. T. Owen, second officer of the Bushire, and M. A. Toeg, a passenger on board the Bushire, were drowned. The collision was caused by the fault or default of the master and crew of the Bernina, and by the fault or default of the master and crew of the Bushire. Armstrong and Toeg had nothing to do with the negligent navigation of the Bushire ; but Owen was in charge of her at the time and was directly responsible for it. The three actions were brought by the personal representatives of Armstrong, Owen, and Toeg respectively, to recover damages for their respective deaths. The questions for the opinion of the court were (1) whether the defendants were liable for the damages sustained in each case; and (2) if liable, whether they were liable to pay the whole of such damages, or only a moiety in each case. Butt, J., on the authority 582 Select Cases on the Law of Torts. [pakt ii. of Thorogood v. Bryan 1 , pronounced that the defendants were not liable in any of the actions 2 . The Court of Appeal reversed this decision so far as it concerned the actions by the representatives of Armstrong and Toeg, and pronounced that the defendants were liable in those two actions for the damages proceeded for, and referred the amount to the registrar ; being of opinion that Thorogood v. Bryan was wrongly decided ; and that actions under Lord Campbell's Act (9 & 10 Vict. c. 93) were not admiralty actions; and therefore that the admiralty rule as to half damages did not apply to them 3 . Before the Court of Appeal the claim on behalf of Owen's repre- sentatives was given up ; and the respondents in the appeal to this House consisted only of the representatives of Armstrong and Toeg respectively. The question as to damages was mentioned by the appellants' counsel but was not argued before this House. Phillimore, for the appellants.... The principle of Thorogood v. Bryan is sound It is admitted that a plaintiff cannot sue when his driver is his own servant and is guilty of contributory negligence. The same result should follow whenever a plaintiff delegates [to any one, though ' not a servant], the control of a carriage or a vessel. The principle is sound in the case of goods; why not in the case of passengers?... Loed Hekschell The appellants having, as they admit, been guilty of negligence from which the respondents have suffered loss, a prima facie case of liability is made out against them. How do they defend themselves? They do not allege that those whom the respondents represent were personally guilty of negligence which con- tributed to the accident. Nor again do they allege that there was contributory negligence on the part of any third person standing in such a legal relation towards the deceased men as to cause the acts of that third person to be regarded as their acts ; e.g. the relation of master and servant or employer and agent. But they rest their defence solely upon the ground that those who were navigating the vessel in which the deceased men were being carried were guilty of negligence without which the disaster would not have occurred. They rely upon the case of Thorogood v. Bryan*, which un- doubtedly does support their contention. This case was decided as long ago as 1849, and has been followed in some other cases; but it was early subjected to adverse criticism. It has never come for revision before a court of appeal until the present occasion. The action was one brought, under Lord Campbell's Act, against the owner of an omnibus by which the deceased man was run over and killed. The omnibus in which he had been carried had set him down in the middle of the road instead of drawing up to the kerb ; and before he could 1 8 C. B. 115. z L. E. 11 P. D. 31. » L . B . 12 p. d. 58> sect. iv. J Mills v. Armstrong. 583 get out of the way he was run over by the defendant's omnibus, which was coming along at too rapid a pace to be able to pull up. The learned judge directed the jury that "If they were of opinion that want of care on the part of the driver of the deceased's omnibus in not drawing up to the kerb to put the deceased down, or any want of care on the part of the deceased himself, had been conducive to the injury, in either of those cases — notwithstanding that the defendant, by her servant, had been guilty of negligence — their verdict must be for the defendant.'' The jury gave a verdict for the defendant. The question was then raised, on a rule for a new trial on the ground of misdirection, whether the ruling of the learned judge was right. The court held that it was. It is necessary to examine carefully the reasoning by which this result was arrived at. Coltman, J., said: "The passenger has so far identified himself with the carriage in which he was travelling that want of care in the driver will be a defence to the driver of the carriage which directly caused the injury." Maule, J., and Vaughan "Williams, J., also dwelt upon this view of the " identification " of the passenger with the driver of the vehicle in which he is being carried. With the utmost respect for these eminent judges, I must say that I am unable to comprehend this doctrine of Identification upon which they lay so much stress. In what sense is the passenger by a public stage-coach, because he avails himself of the accommodation afforded by it, identified with the driver? The learned judges manifestly do not mean to suggest (though some of the language used would seem to bear that construction) that the passenger is so far identified with the driver that the negligence of the latter would render the former liable to third persons injured by it. I presume that they did not even mean that the identification is so complete as to prevent the passenger from recovering against the driver's master ; (though if " negligence of the owner's servants is to be considered negligence of the passenger," it is not easy to see why it should not be a bar to such an action). In short, as far as I can see, the " identification " appears to be effective only to the extent of enabling another person whose servants have been guilty of negligence to defend himself by the allegation of contributory negli- gence on the part of the person injured.... But the relation between the passenger in a public vehicle and the driver of it certainly is not such as to fall within any of the recognised categories in which the act of one man is treated in law as the act of another. . . . Loed Watson. Thorogood v. Bryan has not met with general acceptance, and it cannot be represented as an authority upon which persons guilty of contributory negligence are entitled to rely. When the combined negligence of two or more individuals, who are not acting in concert, results in personal injury to one of them, he 584 Select Gases on the Law of Torts. [part ii. cannot recover compensation from the others ; for the obvious reason that but for his own neglect he would have sustained no harm. Upon the same principle individuals who are injured, without being personally negligent, are nevertheless disabled from recovering damages if at the time they stood in such a relation to any one of the actual wrongdoers as to imply their responsibility for his act or default. That any constructive fault which implies the liability of those to whom it is imputable to make reparation to an innocent sufferer, must also have the effect of barring all claims at their instance against others who are in pari delicto, is a proposition at once intelligible and reasonable. If they are within the incidence of the maxim " qui facit per alium facit per se," there can be no reason why it should apply in questions between them and the outside public and not in questions between them and their fellow-wrongdoers. But the facts which were before the court in Thorogood v. Bryan do not appear to me to bring the case within that principle It appears to me that the " Identification " upon which the decision in Thorogood v. Bryan is based has no foundation in fact. I am of opinion that there is no relation constituted between the driver of an omnibus and its ordinary passengers which can justify the inference that they are identified to any extent whatever with his negligence. He is the servant of the owner, not their servant ; he does not look to them for orders, and they have no right to interfere with his conduct of the vehicle except perhaps the right of remonstrance when he is doing, (or threatens to do), something that is wrong and inconsistent with their safety. Practically they have no greater measure of control over his actions than the passenger in a railway train has over the conduct of the engine-driver. I am therefore unable to assent to the principle upon which the case of Thorogood v. Bryan rests. In my opinion an ordinary passenger by an omnibus, or by a ship, is not affected, either in a question with contributory wrongdoers or in one with innocent third parties, by the negligence of the driver or of the master and crew, unless he actually assumes control over their actions and thereby occasions mischief. In that case he must of course be responsible for the consequences of his interference. . . . Appeal dismissed. [Editor's Note. This decision confirms the emphatie opinion which Lopes, L.J., had expressed in the court below, that " The theory of the Identification of the passengers with the driver is a fallacy and a fiction, contrary to sound law and opposed to every principle of justice " ; (L. E. 12 P. D. at p. 99).] sect, iv.] Waite v. The North Eastern Ry. Co. 585 [If, though the defendant were negligent, another person's negligence were the sole proximate cause of damage, neither that person nor even any child under his charge can recover from the defendant.] WAITE v. THE NORTH EASTERN RY. CO. Exchequer Chamber. 1858. E.B. & E. 719. [Action by Alexander Waite, the younger, an infant, (by Alexander White, his " next friend "). The plaintiff, an infant of the age of five years, accompanied his grandmother, Mrs Park, to a station belonging to the defendant company. Mrs Park there bought a ticket for herself, and a half ticket for plaintiff. She and the plaintiff began to cross the line to get to the platform from which their train was to start. But whilst so doing, they were run over by a train ; and Mrs Park was killed, and the child was injured. The jury, (in answer to questions put to them by the learned judge, Martin, B.), found that defendants were guilty of negligence, and that Mrs Park was also guilty of negligence which contributed to the acci- dent; and they assessed the damages at £20. There was no negli- gence, nor was any suggested, on the part of the infant plaintiff. The judge directed a verdict for the plaintiff for £20, with leave to the defendants to move to enter a verdict for them. The Court of Queen's Bench, after argument, entered the verdict for the defendants. The plaintiff appealed to the Exchequer Chamber.] ******* Overend, for plaintiff. It does not follow, from the company accepting the child as a passenger, that they accepted the grandmother as his agent. Suppose a party is injured by the collision of two carriages in neither of which he is : he may recover against both. Now that is the present case, unless the grandmother is, for 1 the purpose of the conveyance, the agent of the child ; and that she cannot be, inas- much as the child has no capacity for selecting an agent. But, further, the jury have found positive negligence on the part of the defendants : that puts an end to the defence from negligence of the plaintiff, which is a defence properly resting on estoppel. Nor is this quite like the case of a child in arms : the company might have ordered the plaintiff to be taken off the railway, and ought to have done so. Cockburn, C.J. I am of opinion that -the' judgment of the Court of Queen's Bench ought to be affirmed. I put the case on this ground : that, when a child of such tender and imbeoile age is brought to a railway station or to any conveyance, for the purpose of being con- 586 Select Cases on the Law of Torts. [part ii. veyed, and is wholly unable to take care of itself, the contract of conveyance is on the implied condition that the child is to be conveyed subject to due and proper care on the part of the person having it in charge. Such care not being used, where the child has no natural capacity to judge of the surrounding circumstances, a child might get into serious danger from a state of things which would produce no disastrous consequences to an adult capable of taking care of himself. Here the child was under the charge of his grandmother ; and the company must be taken to have received the child as under her control and subject to her management. The plea and the finding shew that the negligence of the defendants contributed partially to the damage ; but that the negligence of the person in whose charge the child was, and with reference to whom the contract of conveyance was made, also contributed partially. There is not therefore that negligence on the part of the defendants which is necessary to support the action. ypr yfc t)p ^*fc yfc v *P Judgment for defendants. [Editor's Note. This decision was recognised in the Bernina case, (supra, p. 581), as unaffected by the judgments there given. It may be supported on various grounds. There is the narrow one of the Contract, whereby the plaintiff's rights had impliedly been made conditional upon his grandmother's taking ordinary care of him. A wider one, which would be available on behalf of even a non-contracting wrongdoer, is the principle of a fictitious " Identification " of young children (too young to take charge of them- selves) with the persons in whose charge they are. The fiction of such a species of " constructive contributory negligence " is far less glaring than that once-current identification of an ordinary passenger with the carrier who is conveying him, which was authoritatively rejected in the Bernina case ; and consequently may still be valid, in spite of that rejection. When Lord Watson said in that case, (L. E. 13 App. Ca. at p. 19), " The theory that an adult passenger places himself under the guardianship of the driver, so as to be affected by the driver's negligence, appears to me to be absolutely without foundation,'' he also said, "There is no analogy between an infant incapable of taking care of itself, and a passenger sui juris." But a plainer explanation, and one which would be more generally accepted at the present day, is that of Proximity of Causation. The company were free from liability simply because (in Sir F. Pollock's words) "the needful foundation of liability was wanting ; namely, that the defendant's own negligence, and not some- thing else for which he is not answerable, should be the proximate cause." See the remarks on this case in Pollock on Torts, p. 455 ; and in Bigelow on Torts, p. 382. That explanation, however, (as both writers admit) assumes that the grand- mother's negligence constituted the whole and sole "proximate" cause of the child's injuries. The assumption is sound enough. Yet it may be doubted whether the jury adopted it; they may really have regarded the proximate cause as con- sisting of the combined acts of negligence of the grandmother and the railway company — a view apparently adopted by the company themselves when urging, in their second plea, merely that the lady's negligence " occasioned the said damage and injury as much as the negligence of the defendants."] sect. iv.J Dixon v. Bell. 587 Chapter IV. — Breaches of Duties op Extraordinary Responsibility. [In some exceptional cases, the law imposes a higher duty than the usual one of avoiding ordinary Negligence on the part of yourself and your servants 1 . ] (1) Duties of Insurance. [A person in possession of loaded firearms is responsible — even though guilty of no Negligence— for any harm done by them.] DIXON v. BELL. Court of King's Bench. 1816. 5 Maule & Selwyn 198. [The declaration stated that the defendant was possessed of a gun ; and that he, well knowing the same to be loaded, wrongfully sent a female servant to fetch away the gun so loaded, he well knowing that the said servant was too young to be sent for the gun, and to be intrusted with the care of it ; and 'which said servant afterwards, while she had the custody of the said gun accordingly, carelessly and improperly shot off the same into the face of the plaintiff's son and servant, and struck out his right eye and two of his teeth, whereby the plaintiff was deprived of his service, and put to great expense in procuring his cure. There was a second count, for taking such improper care of the gun, knowing that it was loaded, that the gun was afterwards discharged against the plaintiff's son. Plea, not guilty.] The plaintiff and defendant both lodged at the house of one Leman, where the defendant kept a gun loaded, in consequence of several robberies having been committed in the neighbourhood. The defendant left the house, and sent a mulatto girl, his servant, of the age of about fourteen 2 , for the gun, desiring Leman to give it to her and to take the priming out. Leman accordingly took out the priming, told the girl so, and delivered the gun to her. She put it down in the kitchen ; but soon afterwards took it up again, and presented it, in play, at the plaintiff's son (a child between eight and nine), saying she would shoot him ; and drew the trigger. The gun went off, and the consequences 1 [Editor's Note. See Pollock and Maitlarid's History of English Law (i. 32), that the cases — now distinctly exceptional ones — in which this principle is adopted, are relics of what, in Anglo-Saxon law, used to be the general legal doctrine.] 2 The Nisi Prius reporters, (Holt 233, 1 Starkie 287) make her only twelve. 588 Select Gases on the Law of Torts. [paet ii. stated in the declaration ensued. There was a verdict for the plaintiff", damages £100. The Attorney-General moved for a new trial, on the ground that the defendant had used every precaution which he could be expected to use on such an occasion ; and, therefore, was not chargeable with any culpable negligence. Lord Ellenbokough, O.J. The defendant might and ought to have gone farther. It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious. This might have been done by the discharge or drawing of the contents. And though it was the defendant's intention to prevent all mischief, and he expected that this would be effectuated by taking out the priming, the event has unfortunately proved that the order to Leman was not sufficient. Consequently, as, (by this want of care), the instrument was left in a state capable of doing mischief, the law will hold the defendant responsible. It is a hard case, undoubtedly ; but I think the action is maintainable. Bayley, J. The gun ought to have been so left as to be out of all reach of doing harm. The mere removal of the priming left the chance of some grains of powder escaping through the touchhole. Rule refused. [Editor's Note. Sir P. Pollock points out (Torts, p. 485 m.) that the case might even have been disposed of on a lower ground ; viz. that defendant was guilty of ordinary negligence, by sending an incompetent person to fetch a loaded gun, as insisted on in the first count of the declaration. It is, however, as he elsewhere says, (17 Revised Eeports v) a hard case but one that has not been disputed. It seems that, had the child died, Bell would have been guilty of manslaughter ; (Russell on Crimes, ed. 1896, in. 177). Though the master was here held liable, it was not because the servant was acting within the scope of her employment, for clearly she was not ; (contrast Limpus v. London General Omnibus Co., supra, p. 79). A distinction must be noted between such cases, where the defendant's liability arises from his keeping a loaded gun, and those in which it arises from his using one. In the latter class, it is now settled that he is only rendered liable by his actual Negligence; see Stanley v. Powell, supra, p. 140, (unless this latter case is to be explained away as applying only to persons who have voluntarily joined a shooting party and thereby accepted some of its risk, not to mere outsiders even when injured by sheer accident). In the very recent Irish case of Sullivan v. Greed (Ir. L. R. [1904] 2 K. B. 317) the possessor had placed the gun in a field ; but near a private path. A passer-by took it up ; and, by his carelessness, wounded the plaintiff with it. The Court of Appeal unanimously held the (original) possessor to be liable. In the court below some of the judges, whilst agreeing in the legal principle that he would be liable for the damage done by any probable use of the gun, thought that the facts lay just over the border-line, and that the chance of the gun's being meddled with by anybody, in this field, was too remote. As to Vendors of firearms, see Langridge v. Levy, (supra, p. 476) ; and consider the question which is raised on p. 477, near the end. For elaborate legislative sect, iv.] Dixon v. Bell. 589 provisions as to the manufacture, carriage, and sale of gunpowder and other explosives, see the Explosives Act, 1875 (38 & 39 Vict. c. 17), and the Orders that have been made thereunder.] [A man who kindles a fire is under a like responsibility for any damage done by it, even though he be innocent of negligence; except (by Statute) when the fire was lit on his own premises for some ordinary purpose.] BEAULIEU v. FINGLAM. Court of Common Pleas. 1401. Y.B. 2 Henry IV. fo. 18, pi. 5. A man named William Beaulieu sued Roger Finglam for that — whereas (according to the law and custom of our realm of England hitherto obtaining) everyone in the realm keeps, and is bound to keep, his fire safe and sure so that no damage in any way happen through his fire to his neighbours, — yet the aforesaid Roger kept a fire of his, at Carlion, so negligently that, through his lack of a due care of the said fire, the goods and chattels of the said William, then being in his house, to the value of forty pounds, and the said house itself, were then and there burnt through that fire, to the damage of the said William. Hornby. I ask judgment for the defendant on this count ; for the plaintiff lays his count upon a common custom of the realm, and he has not gone on to say that this custom has been practised, etc. To which all the Court said, Go to your next point; for the common custom of this realm is the common law of the realm. Thiening said that a man shall answer for his fire if by mischance it burn another man's goods. Whereupon some gave the opinion that the fire cannot be called " his " fire ; for a man can have no property in fire. But that opinion was not allowed 1 . Markham. A man is bound in such a case to answer for the acts of his servant or his ostler. For if my servant or my ostler fix a candle against the wall, and the candle fall into the thatch and burn down all my house and my neighbour's house too, in that case I must answer to my neighbour for the damage done to him. And the Court agreed to this. 1 [Editor's Note. Lord Holt, C.J., met the like objection, when raised three hundred years later, by saying " The property in the materials makes the property in the fire " ; (1 Lord Raymond 264).] 590 Select Cases on the Law of Torts. [part ii. Hornby. But the plaintiff would have to sue by the special writ for burning (or burning down) a house. Hull. It would be against all reason to put blame or default upon a man when there was none in him. (For the negligence of his servants cannot be called his.) Thirning. Nay ; for if a man kills or slays another by misad- venture, he will have to forfeit his goods, and it is only by an act of grace that he can get his charter of pardon. To which the Court agrees. . Markham. I shall have to answer to my neighbour for anyone who enters my house by my will or my knowledge (or is received by me or by my servant as a guest), if he do any act, (as with a candle or anything else), by which my neighbour's house is burnt. But if a man from outside my house, against my will, puts fire into the thatch of my house (or anywhere else) whereby my house is burned, and, in con- sequence, my neighbours' houses are burned too, I shall not be bound to answer to them for this. For it cannot be said to be through any wrongdoing on my part, but was quite against my will. Hornby. This defendant will be undone and impoverished for ever, if this action be allowed against him ; for then twenty other such actions will be brought against him for like matter. Thirning. What is that to us ? It is better that he should be utterly undone than that, for him, the law should be changed. And then they went to an issue on a plea that it was not by the defendant's fire that the house of the plaintiff had been burned down. [Editor's Note. See, accordingly, in Powell v. Fall, (L. E. 5 Q. B. D. 297), the owner of a steam traction-engine held liable for the burning of a stack of hay by sparks escaped from his engine, although it was admitted that there had been no negligence on the part of either himself or his servants.] sect, iv.] Filliter v. Phippard. 591 {The {above mentioned) statutory relaxation of this common-law rule does not abolish the liability for Negligence.] FILLITER v. PHIPPARD. Court of Queen's Bench. 1847. 11 Q.B. 347. [This was a motion in arrest of judgment, on a declaration stating (with some other particulars) that the plaintiff was possessed of a close in which certain hedges and gates were standing, and several trees growing ; that the defendant was possessed of an adjoining close j and that the defendant made and kept a fire in his close in such a negligent manner, and at a time when, by reason of the then state of the wind and weather, it was dangerous and improper so to do ; that, through the negligence and improper conduct of himself and his servants, and for want of due care and caution, the said fire extended itself out of his close into plaintiff's ; and the plaintiff's trees, hedges, fences, &c. were burned and destroyed. After a verdict for the plaintiff, at the Dorset- shire Assizes, the defendant moved in arrest of judgment.] ******* Lord Denman, C. J., delivered the judgment of the Court : — The ancient law, or rather custom of England, appears to have been, that a person in whose house a fire originated, which afterwards spread to his neighbour's property and destroyed it, must make good the loss. And it is well established that, where the fire was occasioned by a servant's negligence, the owner, the master of the house where it began, is answerable for the consequences to the sufferer. And the case of Turberville v. Stamp', the last decided before Stat. 6 Ann. c. 31, makes this plain, and declares the same principle where the fire originates in the defendant's close. The Act contemplates the probability of fires in cities and towns arising from three causes, the want of water,, the imperfection of party walls, and the negligence of servants. The Act provided some means for supplying these material defects : but... in the sixth section, enacts that (after a day named) no action shall be main- tained against any person in whose house or chamber any fire shall accidentally begin, nor shall any recompense be made by such person for any damage suffered or occasioned thereby. Both provisions seem to have found favour with the legislature; for both were re-enacted by stat. 12 G. 3, c. 73, and stat. 14 G. 3, c. 78 ; the latter (s. 86) adding (to the words "house or chamber"), the further words "stable, barn, or other, building," and also the words "or on whose estate." 1 1 Comyns's E. 32 ; S. C. 1 Salk. 13. 592 Select Cases on the Law of Torts. [part ii. No terms can be more comprehensive. We cannot doubt that Baron Parke, in Richards v. Easto 1 , rightly viewed it as a general law. And, though the word " estate " is used in a sense very different from that which it bears in the language of the law, it clearly applies to land not built upon, and treats the owner of such land in the same manner as it had previously the owner of buildings. The question then is upon the meaning and effect of the word "accidentally,'' here applied to tire.... It is true that, in strictness, the word accidental may be employed in contradistinction to wilful, and so the same fire might both begin accidentally and be the result of negligence. But it may equally mean a fire produced by mere chance, or incapable of being traced to any cause ; and so would stand opposed to the negligence of either servants or masters. And when we find it used in statutes which do not speak of wilful fires but make an important provision with respect to such as are accidental, (and consider how great a change in the law would be effected, and how great encouragement would be given to that careless- ness of which masters may be guilty as well as servants), we must say that we think the plaintiff's construction much the most reasonable of the two In Vaughan v. Menlove*, a plaintiff recovered damages for a fire spreading to his corn from the defendant's field through the negligence of the defendant and his servants. Lord Lyndhurst says s that stat. 14 G. 3, c. 78 escaped notice on that occasion. But, if we ask how it came to be overlooked, since it would have furnished a complete and easy defence, the only answer can be the universal impression of the eminent lawyers, both at the bar and on the bench, who took part in the argument and judgment, that the clause in the Building Act, respecting accidental fires, cannot apply to such as are produced by negligence Judgment for plaintiff. 1 15 M. & W. 244. 2 Supra, p. 538. * 1 Phillips 306. s sect, iv.] May v. Burdett. 593 [The possessor of a Wild Beast is responsible — even when innocent of Negligence — -for any liarm done by it.] MAY v. BURDETT. Court op Queen's Bench. 1846. 9 Q.B. 101. The declaration stated that the defendant, " before and at the time of the damage and injury hereinafter mentioned wrongfully and in- juriously kept a certain monkey, he well knowing that the said monkey was of a mischievous and ferocious nature and was used and accus- tomed to attack and bite mankind, and that it was dangerous and improper to allow the said monkey to be at large and unconfined: which said monkey, whilst the defendant kept the same as afore- said, did attack, bite, wound, lacerate, and injure Sophia, the wife of the plaintiff, Stephen May ; whereby the said Sophia became greatly terrified . and alarmed, and became sick, sore, lame, and disordered, and so remained and continued for a long time." Plea, not guilty. Issue thereon. On the trial, before Wightman, J., a verdict was found for the plaintiff with £50 damages. Cockburn moved in arrest of judgment The plaintiff assumes that however carefully a destructive animal may be kept, as at the gardens of the Zoological Society, yet if it escapes — without any fault on the ■owner's part — and does damage, or even if an excessively timid person be terrified by the animal whilst under proper restraint, the owner is answerable. No decision has gone that length A man may, on his ■own land, do what he thinks proper, so long as he does not thereby interfere with the rights of others, Jordin v. Crump 1 ; so he may keep a dangerous animal there. Moreover it is consistent with all the averments, in the declaration, that the plaintiff may herself have ■been in fault. Lord Denman, C.J., delivered the judgment of the Court. ...A great many precedents were cited upon the argument. The conclusion to be •drawn from them appears to us to be, that the declaration is good upon the face of it ; and that whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is prima facie liable, in an action on the case, at the suit of any person attacked and injured by the animal, without any averment of negli- gence or default in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous propensities. The precedents, both ancient and modern, with scarcely 1 8 M. & W. 782. k. 38 594 Select Cases on the Law of Torts. [part ii. an exception, merely state the ferocity of the animal and the know- ledge of the defendant, without any allegation of negligence or want of care No case was cited in which it had been decided that a declaration stating the ferocity of the animal and the knowledge of the defendant was bad for not averring negligence also. But various dicta in the books were cited to shew that this is an action founded on negligence, and therefore not maintainable unless some want of care is alleged. . . .Passages were cited in which expressions were used shewing that, if persons suffered animals to go at large, knowing them to be disposed to do mischief, they were liable in case any mischief actually was done ; and it was attempted to be inferred from this that the liability only attached in case they were suffered to go at large (or to be otherwise ill-secured). But the conclusion to be drawn from an examination of all the authorities appears to us to be this : that a person keeping a mischievous animal, with knowledge of its propensities, is bound to keep it secure at his peril; and that, if it does mischief, negligence is presumed without express averment. The precedents, as well as the authorities, fully warrant this con- clusion. The negligence is in keeping such an animal after notice. The case of Smith v. Pelah 1 , and a passage in 1 Hale's Pleas of the Crown, 430 s , put the liability on the true ground. It may be that, if the injury was solely occasioned by the wilfulness of the plaintiff after warning, that may be a ground of defence 3 . But 1 2 Strange 1264 ; [where the owner of a dog, though knowing that he had once bitten a man, continued to "let him go about or lie at his door." The Chief Justice pronounced the owner to be liable for this second biting, " for it was owing to his not hanging the dog on the first notice."] 2 After stating that " if a man have a beast, as a bull, cow, horse, or dog, used to hurt people, if the owner knew not his quality, he is not punishable," Sir Matthew Hale adds that : — " 1. If the owner have notice of the quality of his beast, and it doth anybody hurt, he is chargeable with an action for it. " 2. Though he have no particular notice that it did any such thing before, yet if it be a beast that is ferie natures, (as a lion, a bear, a wolf, yea, an ape or monkey), if it get loose and do harm to any person, the owner is liable to an action for the damage. And so I knew it adjudged in Andrew Baker's Case, whose child was bit. by a monkey that broke his chain and got loose. "3. And therefore in case of such a wild beast — or in case of a bull or cow that doth damage, where the owner knows of it — he must at his peril keep him up safe from doing hurt. For, though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer damages." 3 [Editor's Note. This suggestion was quoted and considered in an American case, Muller v. McKesson (73 N.Y. 195) ; where it was pointed out that in Smith v. Pelah, where the owner had been held liable, although the injury happened by reason of the person injured having trodden on the dog's toes, it still is not stated that the person injured knew of the dog's propensities, or that he trod on its toes intentionally. The American court ruled that " If » person with a full knowledge sect. iv.J Maij v. Bnrdett. 595 it is unnecessary to give any opinion as to this ; for we think that the declaration is good upon the face of it, and shews a prima, facie liability in the defendant. It was said indeed, further, on the part of the defendant, that, the monkey being an animal feres naturae, he would not be answerable for injuries committed by it, if it escaped and went at large without any default on the part of the defendant, during the time it had so escaped and was at large, because at that time it would not be in his keeping nor under his control. But we cannot allow any weight to this objection. For, in the first place, there is no statement in the declaration that the monkey had escaped; and it is expressly averred that the injury occurred while the defendant kept it. And besides, we are of opinion that the defendant, if he would keep it, was bound to keep it secure at all events. Rule discharged. [Editor's Note. The same principle would apply to even a domestic animal of a quiet species, e.g. a dog or a horse, if the particular animal were known to its owner to be ferocious. And in Worth v. Gilling (L. R. 2 C. P. 1), Erie, C.J., pointed out that it is not necessary to prove that it has already actually injured any person. In that case it was proved that the dog "made every effort in his power to get at any stranger who passed by, and was only restrained by the chain '' ; - and this was held to be abundant evidence to shew that the owner did know of the animal's ferocity. By modern statute (28 & 29 Vict. c. 60), owners of dogs are always to be regarded as being aware that they are sufficiently ferocious to he likely to attack sheep or cattle or horses (but, still, not human beings). But the category of animals where this express knowledge is necessary is not to be extended lightly. It does not include elephants. For in Filburn v. People's Palace Go. (L. E. 25 Q. B. D. 258), the case Of an elephant that was expressly declared by the jury not to have been dangerous to man, the Court held that "It cannot possibly be said that an elephant comes within the class of animals shewn by experience to be- harmless in this country ; and consequently it falls within the class of animals that a man keeps at his peril, and which he must prevent from doing injury under any circumstances (unless the person to whom the injury is done brings it on himself). It was therefore immaterial in this case whether or not the particular animal was a dangerous one." .In Nichols v. Maksland (infra, p. 606), Bramwell, B., treated the rule about wild beasts as being so stringent that he doubted whether even the "Act of God" would afford any .excuse to the owner— though it was there decided that it would afford one to the owner of a dangerous Eeservoir. He says " If a man kept a tiger, and lightning broke its chain and it got loose and did mischief, I am by no means sure that the man would not be liable " (L. R. 10 Ex. at p. 260).] of the evil propensities of an animal voluntarily and unnecessarily puts himself in its way, he should be adjudged to have brought the injury upon himself, and not to be entitled to recover." 38—2 596 Select Cases on the Law of Torts. [part ii. [Not only the owner but even the mere harbourer of a savage dog can be sued for damage done by it.~\ McKONE v. WOOD. Nisi Peius.. 1831. 5 Caerington & Payne 1. Case for keeping a dog accustomed to bite mankind. Plea — General issue. On the part of the plaintiff, it was proved that the dog had bitten the plaintiff, and that it had bitten two other persons before ; but one of the witnesses, who proved that he had made a complaint to the defendant respecting the dog, stated that the defendant had told him that the dog belonged to a person who had been his servant, but who had left him. It was also proved, on the part of the plaintiff, that the dog was seen, about the defendant's premises, both before and after the time when the plaintiff was bitten. Campbell, for the defendant, submitted that there was not sufficient evidence to shew that this was the defendant's dog ; but, on the con- trary, it was shewn that it was not. He therefore contended that the defendant was not liable in this action. Loed Tenterden, C.J. It is not material whether the defendant was the owner of the dog or not ; if he kept it, that is sufficient ; and the harbouring a dog about one's premises, or allowing him to be or resort there, is a sufficient keeping of the dog to support this form of action. It was the defendant's duty either to have destroyed the dog or to have sent him away, as soon as he found that he was mischievous. ' Verdict for the plaintiff — Damages £5. sect, iv.] Tillett v. Ward. 597 [And the owner of cattle and similar quiet animals is responsible — even when innocent of Negligence— for any harm, of a probable kind, done in consequence of their escaping from his land 1 .] See Ellis v. Loftus Iron Co., supra, p. 43. [But not for such harm as was improbable.] See Cox v. Burbioge, supra, p. 37. [And when these quiet animals are lawfully passing on the public highway, their owner is no longer responsible for harm done by them, unless he be guilty of Negligence.] TILLETT v. WARD. Queen's Bench Division. 1882. L.R. 10 Q.B.D. 17. The action was to recover £1 for the damage done to goods in the plaintiff's shop. It appeared that on the 15th of May, 1882, an ox of the defendant was being driven from a live-stock market in Broad Street, Stamford, along a public street called Ironmonger Street, to the defendant's premises. Ironmonger Street has a paved carriage road with a foot pavement on either side, and the plaintiff was the occupier of an ironmonger's shop in the street. The ox, after having gone for some distance down the paved carriage road of Ironmonger Street, driven by the defendant's men, went for a short distance upon the" foot pave- ment on the near or left-hand side. It was driven therefrom by one of the drovers in charge on to the carriage road ; and after continuing for a farther distance upon such carriage road, turned again on the pavement about twelve yards from the plaintiff's shop and continued upon the pavement until it came opposite the plaintiff's shop when it passed through the open doorway into the shop, and did damage to goods therein to the amount claimed. The ox was, as soon as possible after such entry and damage, driven by the defendant's men from the shop to the carriage road and to defendant's premises in another street, but they did not succeed in getting it out until about three-quarters of 1 "lis ont fait tort quand les bestes vont oustre la terre'' ; T. B. 7 Hen. VII. MchaS. fo. 16, pi. 1. 598 Select Gases on the Law of Torts. [pakt 11. an hour from the time when it entered. No special act of negligence was proved on the part of the persons in charge of the ox ; and there was no evidence that it was of a vicious or unruly nature, or that the defendant had any notice that there was anything exceptional in its temper or character, or that it would be unsafe to drive it through the public streets in the ordinary and usual way. I£ was proved that, at the time the ox left the carriage way the second time, one of the two men of the defendant in charge of the animal was walking by its side, having his hand upon it, and that the other man was walking about three yards in the rear of it. The two men in charge proved that they drove it unaccompanied by other cattle from the market ; and they both declared that they did all they could under the circumstances to prevent it going on to the foot pavement and entering the open doorway of the plaintiff's shop. They stated that the movement of the ox from the carriage way on to the foot pavement was sudden, and could not by any reasonable or available means have been prevented. It was alleged by the defendant's witnesses, and not contradicted, that it was a usual thing for several oxen to be driven from the Stamford market in charge of two men and sometimes one man. It was admitted that it is not customary to drive oxen with halters, and that they would probably not go quietly if led by halters. The county court judge gave a verdict for the amount claimed, giving the defendant leave to appeal. The question for the opinion of the Court was whether, upon the facts, the plaintiff was entitled to the verdict Lord Coleridge, C.J. In this action the county court judge has found as a fact that there was no negligence on the part of the drivers of the ox ; or, at all events, he has not found that there was negligence, and as it lies on the plaintiff to make out his case, the charge of negligence, so far as it has any bearing on the matter, must be taken to have failed. Now, it is clear, as a general rule, that the owner of cattle and sheep is bound to keep them from trespassing on his neighbours' land ; and, if they so trespass, an action for damages may be brought against him, irrespective of whether the trespass was, or was not the result of his negligence. It is also tolerably clear that where both parties are upon the highway, where each of them has a right to be, and one of them is injured by the trespass of an animal belonging to the other, he must, in order to maintain his action, shew that the trespass was owing to the negligence of the other or of his servant. It is also clear, where a man is injured by a fierce or vicious animal belonging to another, that prima facie no action can be brought with- out proof that the owner of the animal knew of its mischievous tendencies. sect, iv.] Tillett v. Ward. 599 In the present case, the trespass, if there was any, was committed off the highway, upon the plaintiff's close which immediately adjoined the highway, by an animal belonging to the defendant, which was being driven on the highway. No negligence is proved ; and it would seem to follow, from the law which I have previously stated, that the defendant is not responsible. We find it established as an exception upon the general law of trespass, that where cattle trespass upon unfenced land immediately adjoining a highway the owner of the land must bear the loss. This is shewn by the judgment of B ram well, B., in Goodwyn v. Cheveley*. That learned judge goes into the question whether a reasonable time had or had not elapsed for the removal of cattle who had trespassed under similar circumstances, and this question would not have arisen if a mere momentary trespass had been by itself actionable. There is also the statement of Blackburn, J., in Fletcher v. Bylands 2 , that persons who have property adjacent to a highway may be taken to hold it subject to the risk of injury from inevitable risk, I could not, therefore, if I were disposed, question law laid down by such eminent authorities ; but 1 quite concur in their view, and I see no distinction for this purpose between a field in the country and a street in a market town. The accident to the plaintiff was one of the necessary and inevitable risks which arise from driving cattle in the streets in or out of town. No cause of action is shewn, and the judgment of the county court judge must be reversed. Stephen, J. I am of the same opinion. As I understand the law, when a man has placed his cattle in a field it is his duty to keep them from trespassing on the land of his neighbours ; but while he is driving them upon a highway he is not responsible, without proof of negligence on his part, for any injury they may do upon the highway, for they cannot then be said to be trespassing. The case of Goodwyn v. Cheveley 3 seems to me to establish a further exception, that the owner of the cattle is not responsible without negligence when the injury is done to property adjoining the highway ; an exception which is abso- lutely necessary for the conduct of the common affairs of life. We have been invited to limit this exception to the case of high roads adjoining fields in the country ; but I am very unwilling to multiply exceptions, and I can see no solid distinction between the case of an animal straying into a field which is unfenced or into an open shop in a town. I think the rule to be gathered from Goodwyn v. Cheveley 3 a very reasonable one ; for otherwise I cannot see how we could limit the liability of the owner of' cattle for any sort of injury which could be traced to them. Judgment for the defendant. i 28 L. J. (Ex.) 298. * L. R. 1 Ex. 265. 3 28 L. J. (Ex.) 298. 600 Select Cases on the Law of Torts. [part ii. [Editob's Note. So far back as the fifteenth century, it was already familiar law that " If a man comes with a drove of cattle on the high road past where trees or corn or other crops are growing, then, should any of the beasts eat from these crops, the man who was driving them would have a good defence, provided the thing happened against his will. For the law understands that a man cannot control his cattle all the while. But if he permitted them, or if he let them continue, then it would be otherwise.'' {Per Catesby, J., Y. B. 22 Edw. IV. fo. 24).J [It is a Tort for a landowner to cause damage by the escape, (even without any negligence of his) of any extraordinary source of danger which he has brought upon his land.] RYLANDS v. FLETCHER. House of Lokds. 1868. L.R. 3 H.L. 330. Fletcheb brought an action against Rylands & Horrocks to re- cover damages for an injury caused to his mines by water overflowing into them from a reservoir which the defendants had constructed. The declaration contained three counts, each count alleging negligence on the part of the defendants. But in this House the case was ultimately treated upon the principle of determining the relative rights, of the parties independently of any question of personal negligence by the defendants, in the exercise of them. The cause was referred to an ' arbitrator. He prepared a special case for the consideration of the judges, and the case was argued in the Court- of Exchequer The plaintiff was the lessee of certain coal mines known as the Red House Colliery, under the Earl of Wilton. He had also obtained from two other persons, Mr Hulton and Mr Whitehead, leave to work for coal under their lands. The positions of the various properties were as follows. There was a turnpike road, which formed a southern boundary to the properties of these different persons. A parish road formed their northern boundary. These roads formed two sides of a square, of which the other two sides were the lands of Mr Whitehead on the east and Lord Wilton on the west. The defendants' grounds lay along the turnpike road, or southern boundary, stretching westward. On these grounds were a mill and a small old reservoir. The proper grounds of the Red House Colliery also lay along the southern boundary, stretching eastward. Immediately north of the defendants' land lay the land of Mr Hulton, and still further north that of Lord Wilton. On this land of Lord Wilton the defendants in 1860 constructed (with his lordship's permission) a new reservoir, the water from which would sect, iv.] Ei/lands v. Fletcher. 601 pass southerly across the lands of Lord Wilton and of Mr Hulton, and so reach the defendants' mill. The plaintiff worked the mines under his lease from Lord Wilton, and under his agreements with Messrs Hulton and Whitehead. In the course of doing so he came upon old shafts and passages of mines formerly worked but- of which the workings had long ceased. The existence of these shafts and passages was unknown. The shafts were vertical, the passages horizontal ; and the former especially seemed filled with marl and rubbish. The defendants employed, for the pur- pose of constructing their new reservoir, persons who were admitted to be competent as engineers and contractors to perform the work ; and there was no charge of negligence made against the defendants per- sonally. But in the course of excavating the bed of the new reservoir five old shafts, running vertically downwards, were met with in the portion of the land selected for its site. The case found that " On the part of the defendants there was no personal negligence or default whatever in the selection of the said site, or in the planning or con- struction of the said reservoir. But, in point of fact, reasonable and proper care and skill were not exercised by the persons so employed by them with reference to the shafts, to provide for the sufficiency of the said reservoir to bear the pressure of water which, when filled to the height proposed, it would have to bear." The reservoir was completed- at the beginning of December, 1860, and on the 11th of that month, (it being then partially filled with water), one of the vertical shafts gave way, and burst downwards. In consequence of this, the water of the reservoir flowed into the old passages and coal-workings underneath, and by means of the under- ground communications between them and the plaintiff's workings in the Red House Colliery the colliery was flooded and the workings thereof stopped. The question for the opinion of the court was whether the plaintiff was entitled to recover damages. The Court of Exchequer, (Bramwell, B., dissenting), gave judgment for the defendants; (3 H. & C. 774). That judgment was afterwards reversed in the Court of Exchequer Chamber, (4 H. &, C. 263 ; L.R. 1 Ex. 265). The case was then brought on error to this House. . . . Sir R. Palmer, for the defendants.... The communications between the workings of the plaintiff and the old shafts were not known to the defendants. As the possible cause of injury was unknown to them they could not by any care on their part prevent that injury.... They employed competent persons ; and to do something which in itself was perfectly lawful ; and so cannot be held liable in damages without clear evidence of impropriety or negligence on their own part 1 . No pretence for setting up a charge of neglect was suggested.... 1 [Editok's Note. See the cases reported supra, pp. 91 — 10?.] 602 Select Cases on the Law of Torts. [part ii. Lord Cairns, L.C. The plaintiff is the occupier of a mine, and works, under a close of land. The defendants are the owners of a mill in his neighbourhood, and they proposed to make a reservoir for the purpose of storing water to be used about their mill upon another close of land which, for the purposes of this case, may be taken as being adjoining to the close of the plaintiff, (although in point of fact some intervening land lay between the two). Underneath the close of land of the defendants, on which they proposed to construct their reservoir, there were certain old and disused mining passages and works. There were live vertical shafts, and some horizontal shafts communicating with them. The vertical shafts had been filled up with soil and rubbish ; and it does not appear that any person was aware of the existence either of the vertical shafts or of the horizontal works com- municating with them. In the course of the working by the plaintiff of his mine he had gradually worked through the seams of coal under- neath the close, and had come into contact with the old and disused works underneath the close of the defendants. In that state of things the reservoir of the defendants was con- structed. It was constructed by them through the agency of an engineer and contractor. Personally the defendants appear to have taken no part in the works or to have been- aware of any want of security connected with them. As regards the engineer and the con- tractor, we must take it from the case that they did not exercise, as far as they were concerned, the reasonable care and caution which they might have exercised, taking notice (as they appear to have taken notice) of the vertical shafts filled up in the manner which I have mentioned. However, when the reservoir was constructed, and partly filled with water, the weight of the water — bearing upon the disused and imper- fectly filled-up vertical shafts — broke through those shafts. The water passed down them, into the horizontal workings; and, from the horizontal workings under the close of the defendants, it passed on into the workings under the close of the plaintiff, and flooded his mine, causing considerable damage, for which this action was brought. The Court of Exchequer Chamber unanimously arrived at the conclusion that there was a cause of action, and that the plaintiff was entitled to damages. My Lords, the principles on which this case must be determined appear to me to be extremely simple. The defendants, treating them as owners or occupiers of the close on which the reservoir was con- structed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used. And if in what I may term the "natural" user of that land there had been any accumulation of water, either on the surface or underground, and if by the operation of the laws of nature that ac- cumulation of water had passed off into the close occupied by the sect, iv.] Rylands v. Fletclier. 603 plaintiff, the plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so by leaving (or interposing) some barrier between his close and the close of the defendants, in order to prevent that operation of the laws of nature. As an illustration of that principle I may refer to the case of Smith v. Kenrick\ in the Court of Common Pleas. On the other hand if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a "non-natural" use — for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any operation on or under the land, — and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril. And if, in the course of their doing it, the evil arose to which I have referred, (the evil namely of the escape of the water and its passing away to the close of the plaintiff and injuring him), then for the con- sequences of that, in my opinion, the defendants would be liable. As the case of Smith v. Kenrick is an illustration of the first principle to which I have referred, so the second principle to which I have referred is well illustrated by the case of Baird v. Williamson 2 . My Lords, these simple principles really dispose of this case. The same result is arrived at on the principles referred to by Blackburn, J., in his judgment in the Court of Exchequer Chamber, in these words : " We think that the true rule of law is that the 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 not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God ; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own. And it seems but reasonable and just that the neighbour who has brought on his MO. B. 515. » 15C. B.,N. S.317. 604 Select Cases on the Law of Torts. [part ii. own property something which was not naturally there — harmless to others so long as it is confined to his own property, but which he knows will be , mischievous if it gets on his neighbour's — should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there, no mischief could have accrued ; and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequence. And upon authority this, we think, is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.'' My Lords, in that opinion I entirely concur. Lord Cranworth. My Lords, I concur in thinking'" that the rule of law was correctly stated by Blackburn, J., in delivering the opinion of the Exchequer Chamber. If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage The doctrine appears to me to be well illustrated by the two cases, referred to, of Smith v. Kenrick and Baird v. Williamson. In the former the owner of a coal mine on the higher level worked out the whole of his coal, leaving no barrier between his mine and the mine on the lower level ; so that the water percolating through the upper mine' flowed into the lower mine and obstructed the owner of it in getting his coal. It was held that the owner of the lower mine had no ground of complaint. The defendant, the owner of the upper mine, had a right to remove all his coal. The damage sustained by the plaintiff was occasioned by the natural flow or percolation of water from the upper strata. There was no obligation on the defendant to protect the plaintiff against this. It was his, business to erect or leave a sufficient barrier so to keep out the water (or to adopt proper means for so con- ducting the water) that it should not impede him in his workings. The water was only left by the defendant to flow in its natural course. But in the later case of Bawd v. Williamson the defendant, the owner of the upper mine, did not merely suffer the water to flow through his mine without leaving a barrier between it and the mine below, but in order to work his own mine beneficially he pumped up quantities of water ; which passed into the plaintiff's mine, in addition to that which would have naturally reached it, and so occasioned him damage. Though this was done without negligence, and in the due working of his own mine, yet he was held to be responsible for the damage so occasioned. It was in consequence of his act, whether skilfully or unskilfully performed, that the plaintiff had been damaged, and he was therefore held liable for the consequences. The damage in sect, iv.] Ei/lands v. Fletcher. 605 the former case may be treated as having arisen from the act of God ; in the latter from the act of the defendant. Applying the principle of these decisions to the case now before the House, I come without hesitation to the conclusion that the judgment of the Exchequer Chamber was right. The plaintiff had a right to work his coal through the lands of Mr "Whitehead, and up to the old workings. If water naturally rising in the defendants' land had by percolation found its way down to the plaintiff's mine through the old workings, and so had impeded his operations, that would not have afforded him any ground of complaint. Even if all the old workings had been made by the plaintiff, he would have done no more than he was entitled to do. For according to the principle acted on in Smith v. Kenrick, the person working/ the mine, under the close in which the reservoir was made, had a right to win and carry away all the coal without leaving any wall or barrier against Whitehead's land. But that is not the real state of the case. The defendants, in order to effect an object of their own, brought on to their land, a large accumulated mass of water, and stored it up in a reservoir. The consequence of this was damage to the plaintiff'; and for that damage, (however skilfully and carefully the accumulation was made), the defendants, according to the principles to which I have adverted, were certainly responsible. Judgment of the Court of Exchequer Chamber affirmed. [Editor's Note. The student will do well to refer to the valuable note appended to this case in J. W. Smith's Leading Cases (i. 810). In the recent case of The Eastern and South African Telegraph Co. Ld. v. The Capetown Tramways Co. Ld. (L. K. [1902] A. C. 381) the principle of Rylands v. Fletcher was reasserted; and was declared to apply to cases where the artificial source of danger, which the land-owner accumulates, is Electricity. "Electricity (in the quantity we are now dealing with) is capable, when uncontrolled, of producing injury to life and limb and to property." But, in the particular case, it was held that the plaintiffs could not recover for the damage done by the escape of the electricity, inasmuch as that damage was not of the same species as the " tangible and sensible " injuries, (interferences with the ordinary use of property), to which alone the extreme responsibility established in Rylands v. Fletcher extends. For the plaintiffs' only complaint was that this escape of electricity produced such irregularity in the working of their own electric cables that the telegrams became confused and unreadable. Had, on the other hand, the cable itself been injured, they could have recovered. But the mere interruption of a business, when of so peculiarly delicate a character as to be interrupted by the escape of even minute currents of electricity, is a matter for which the law ought not to afford a remedy, when the interruption has not been brought about by either malice or even negligence. " The principle of Rylands v. Fletcher — which subjects to a high liability the owner who uses his property for purposes other than those which are natural — would become doubly penal if it implied a liability created (and measured) by the non-natural uses of his neighbour's property" ; (p. 393).] 606 Select Cases on the Law of Torts. [part ii. [But this responsibility does not extend to cases where the cause of damage is specially authorised by law.~\ See the cases given above, Part I. Section in. (D), pp. 127 — 140. [Nor to cases where the damage has arisen through an " Act of God 1 ."] NICHOLS v. MARSLAND. Court op Appeal. 1876. L.R. 2 Ex. Div. 1. [This was an action brought by the county surveyor 2 of the county of Chester against the defendant to recover damages on account of the destruction of four county bridges, which had been carried away by the bursting of some reservoirs. At the trial before Cockburn, C.J., it appeared that the defendant was the owner of Henbury Hall ; with a series of artificial ornamental lakes, which had existed for a great number of years and had never previous to the 18th- day of June, 1872, caused any damage. On that day, however, after a most unusual fall of rain, the lakes overflowed ; the dams at their end gave way, and the water out of the lakes carried away the county bridges lower down the stream. The jury found that there was no negligence either in the construction or the maintenance of the reservoirs ; but that if the flood could have been anticipated, the effect might have been prevented ; but the banks and weirs were sufficient for all events that could reasonably be anticipated, the particular storm having been of such excessive violence as to be properly called vis major or an Act of God. The judge, on the authority of Rylands v. Fletcher 3 , directed a verdict for the plaintiff. The Court of Exchequer subsequently ordered it to be entered for the defendant 4 - The plaintiff appealed.] Cotton, Q.C., for plaintiff. Assuming the jury to be right, still the defendant is liable ; because she has, without necessity and voluntarily for her own pleasure, stored on her premises an element which was liable to be let loose, and which, if let loose, would be dangerous to her neighbours. ...The authorities were all discussed in Madras By. Co. 1 " The Act of God is a plea very often brought forward to excuse the negligence of man," says a South African judge ; (1 Griqualand 373). In Pollock on Contracts (eh. vn.) will be found a valuable discussion of the meaning of this indefinable phrase ; shewing that, at most, it means nothing more precise than " an event which, as between these parties and for the purpose of this litigation, is to be regarded as incapable of being definitely foreseen and controlled." The cognate term vis major is somewhat wider, and includes, besides Acts of God, all other events which it is practically impossible to resist; e.g. not only earthquakes and lightning but also the violence of a mob. 2 Under 43 Geo. III. c. 59, s. 4. 3 Supra, p. 600. 4 L. E. 10 Ex. 255. sect, iv.] Nichols v. Marsland. 607 v. Zemindar of Carvatenagarum' , where the defendant was held not liable on the ground that it was his duty to maintain the reservoirs on his premises. The present defendant was under no such duty. Even if she be considered innocent of wrong doing, why should the plaintiff suffer for the defendant's voluntary act of turning an otherwise harm- less stream into a source of danger ? But for the defendant's embankments, the excessive rainfall would have escaped without doing injury. The fact of the embankments being so high caused the damage. They ought to have been much higher, or less ; or the weirs ought to have been much larger and kept in order. Even if vis major does excuse from liability, the vis major must be the sole cause of the damage, which it was not here ; [for water already stored, before the storm, cooperated with it.] Moreover such a storm as this occurs periodically, and may be foreseen ; and is therefore not the act of God or vis major in the sense that excuses from liability. jit jit jfc ^jt it, jit jit Mellish, L.J., read the judgment of the Court. ...It appears to us that we have two questions to consider : — Eirst, the question of law, which was left undecided in Rylands v. Fletcher 1 , can the defendant excuse herself by shewing that the escape of the water was owing to vis major, or, as it is termed in the law books, the "act of God"? And, secondly, if she can, did she in fact make out that the escape was so occasioned 1 Now, with respect to the first question, the ordinary rule of law is that when the law creates a duty and the party is disabled from performing it without any default of his own, by the act of God, or the King's enemies, the law will excuse him ; but when a party by his own contract creates a duty, he is bound to make it good notwith- standing any accident by inevitable necessity. We can see no good reason why that rule should not be applied to the case before us. The duty of keeping the water in and preventing its escape is a duty imposed by the law, and not one created by contract. If, indeed, the making a reservoir was a wrongful act in itself, it might be right to hold that a person could not escape from the consequences of his own wrongful act. But it seems to us absurd to hold that the making or the keeping a reservoir is a wrongful act in itself. The wrongful act is not the making or keeping the reservoir, but the allowing or causing the water to escape. If, indeed, the damages were occasioned by the act of the party without more — as where a man accumulates water on his own land, but, owing to the peculiar nature or condition of the soil, the water escapes and does damage to his neighbour — the case of Rylands v. Fletcher* establishes that he must be held liable. The 1 L. R. 1 Ind. App. 364, 385 ; supra, p. 131. 2 L. E. 3 H. L. 330. 608 Select Cases on the Law of Torts. [par? ii. accumulation of water in a reservoir is not in itself wrongful ; but the making it and suffering the water to escape, if damage ensue, con- stitute a wrong. But the present case is distinguished from that of Rylands v. Fletcher 1 in this, that it is not the act of the defendant in keeping this reservoir, an act in itself lawful, which alone leads to the eseape of the water, and so renders wrongful that which but for such escape would have been lawful. It is the supervening vis major of the water caused by the flood, which, superadded to the water in the reservoir (which of itself would have been innocuous), causes the dis- aster. A defendant cannot, in our opinion, be properly said to have caused or allowed the water to escape, if the act of God or the Queen's enemies was the real cause of its escaping without any fault on the part of the defendant. If a reservoir was destroyed by an earthquake, or the Queen's enemies destroyed it in conducting some warlike opera- tion, it would be contrary to all reason and justice to hold the owner of the reservoir liable for any damage that might be done by the escape of the water. We are of opinion, therefore, that the defendant was entitled to excuse herself by proving that the water escaped through the act of God. The remaining question is, did the defendant make out that the escape of the water was owing to the act of God 1 Now the jury have distinctly found, not only that there was no negligence in the con- struction or the maintenance of the reservoirs, but that the flood was so great that it could not reasonably have been anticipated, although, if it had been anticipated, the effect might have been prevented ; and this seems to us in substance a finding that the escape of the water was owing to the act of God. However great the flood had been, if it had not been greater than floods that had happened before and might be expected to occur again, the defendant might not have made out that she was free from fault ; but we think she ought not to be held liable because she did not prevent the effect of an extraordinary act of nature, which she could not anticipate. In the late case of Nugent v. Smith 2 we held that a carrier might be protected from liability for a loss occasioned by the act of God, if the loss by no reasonable pre- caution could be prevented, although it was not absolutely impossible to prevent it. It was indeed ingeniously argued for the appellant that at any rate the escape of the water was not owing solely to the act of God, because the weight of the water originally in the reservoirs must have contributed to break down the dams, as well as the extraordinary water brought in by the flood. We think, however, that the extra- ordinary quantity of water brought in by the flood is in point of law 1 L. B. 3 H. L. 330. " 1 C. P. D. 423. sect. iv.J Nichols v. Marsland. 609 the sole proximate cause of the escape of the water. It is the last drop which makes the cup overflow Judgment affirmed. [Editor's Note. Compare Holmes v. Matheb, supra, p. 1. In Koman law, a similar decision would have been reached on the simple ground of its always being the duty of a lower landowner to receive all the water— unless artificially accumulated— that may fall on the higher land. Dig. 39. 3. 1. 22 ; (semper est servitus inferiorum praediorum ut natura profluentem aquam excipiant) ; see Austen v. Standard, 1 Griqualand, at p. 379).] [Nor to cases w/iere tlie source of danger has not escaped from tlie defendant's land.] PORTING v. NOAKES. Queen's Bench Division. L.R. [1894] 2 Q.B. 281. [The plaintiff was a farmer, and occupied a field separated from the premises of the defendants by a fence. On the side of the fence next the plaintiff's field was a ditch, belonging to the defendants. On the defendants' land near the fence grew a yew tree, the branches of which projected over the ditch, but not beyond it. They did not overhang the plaintiff's field. At the distance of about 120 yards grew another yew tree which overhung the plaintiff's field, in the garden of one Hunt ; and in the hedge of the plaintiff's field about fifty, yards from the defendants' yew tree there was a small yew bush. On the 25th of June a colt, and several other horses, were in the plaintiff's field. On the 26th the colt was found dead five yards from the defendants' yew, and there was no doubt from the examination made of the body that it had died from eating yew leaves. All the three trees — the defendants', Hunt's, and the plaintiff's yew bush — presented appear- ances of having been recently eaten. A veterinary surgeon stated that horses usually drop dead directly, or within a very short distance, after eating yew leaves. Counsel for the defendants urged that there was no case to go to the jury, as the evidence was equally consistent with the colt's having been poisoned by either the defendants' or the plaintiff's own tree. The county court judge however left the case to the jury, who found a verdict for the plaintiff for £22. The defendants appealed.] ******* k. 39 610 Select Cases on the Law of Torts. [part ii. Collins, J. The yew tree was wholly within the defendants' boundary, therefore it seems clear that the principle of which Fletclher v. Rylands 1 is an instance has no application to this case. The prin- ciple there stated was that "The 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." That case was decided on the analogy of Tenant v. Goldwin 2 , where it was said, " He whose dirt it is must keep it in, that it may not trespass." Here there has been no escape or trespass of anything kept by the defendants. If they were liable it must be for not taking precautions to pre- vent the plaintiff's cattle from getting access to the defendants' yew tree on the defendants' own premises — in other words, for negligence. I should add that there was no evidence of any obligation on either party to maintain the fence for the benefit of the other, and the case may be treated, therefore, as if there had in fact been no fence. What, then, was the duty cast upon the defendants, the breach of which grounds this action ? Mr Chitty, who argued for the plaintiff, contended that the, owner of anything capable of attracting cattle, and dangerous to them if they yielded to the attraction, was bound to use reasonable care to prevent them getting access to it. Does such a duty exist ? I think not, and Mr Chitty was not able to produce any authority which went near to establish it. The point might have arisen in Crowhurst v. Amersham Burial Board 3 . There a horse had died of eating of a yew tree growing on defendants' land ; and the case, as originally stated by the county court judge, left it doubtful whether the death was caused by eating portions of the tree which projected over the plaintiff's land, or portions on the defendants' own land which the horse was able to reach by stretching his neck over the intervening fence. The court, however, sent the case back to be restated, and it was then found as a fact that the horse died exclu- sively from the effects of eating portions which projected over the plaintiff's land ; and the case was accordingly decided in favour of the plaintiff, on the authority of Fletcher v. Rylands It was the duty of the plaintiff to keep his horse from trespassing, and not of the defendants to guard against the consequences of such trespass. Such duty is clear, and the plaintiff might have been liable to the defendants for damage done by his horse while so trespassing on the land of the latter : Cox v. Burbidge i , Ellis v. The Loftus Iron Co. 5 Does it, then, make any difference that a yew tree is likely to tempt a horse to trespass 1 I think not, unless it were proved that it was put or kept there for the purpose of enticing the animal to his destruction ; as was done in Townsend v. Wathen', cited by Mr Chitty. 1 Supra, p. 600. * 1 Salkeld 360. " L. B. 4 Ex. D. 5. 4 Supra, p. 37. 5 Supra, p. 43. 6 9 East 277. sect, iv.] Ponting v. Noakes. 611 The wrongful intention was the gist of that action. If such intention is disproved it follows, if the above reasoning is sound, that there can be no liability. Indeed, the very point is put as an illustration by Gibbs, C.J., in Deane v. Clayton 1 , at p. 531, where he takes the case of water in which a plaintiff has no right, polluted by the act of the defendant and drunk by the plaintiff's cattle, who reach it through a trespass on the defendant's land. He says : " The right to be there is the gist of the action, and in no instance has an action been supported when cattle have no right to be in the place in which they received the damage ; unless the defendant had used some undue means to entice them, as in Townsend v. Wathen, which stands on a distinct ground." It is obvious that water might have just as great an attraction for cattle as a yew tree. The result may be summarized by saying that the action is one of negligence ; and the possession of something attractive and injurious to cattle casts no duty on the owner to take precautions against their trespassing in pursuit of it, when he has not placed or kept it there with that purpose Lastly, it was suggested that the analogy of such a case as Lynch v. Nurdin 2 might apply ; and that as, in that case, a defendant who had left his cart and horse in a highway (where he had a right for the time being to place them) was held liable for injury to a child who trespassed upon them in his absence, so here the defendants might be liable for not taking precautions to prevent the horse getting across to the tree. The cases, however, differ in a crucial point. There the cart was left in a public highway where the children and the plaintiff had an equal" right to be, and the children were not trespassers before they got into the cart. If the plaintiff had licensed the defendants to carry the yew tree across the plaintiff's field, and the defendants while so doing had left it unguarded, and while so left the horse had eaten it, the cases would be more nearly parallel.... Appeal allowed. [There is no such responsibility for the escape of noxious weeds that have grown naturally upon the landJ\ See Giles v. Walker, supra, p. 532. [Editor's Note. As to the similar absence of responsibility for damage done by the escape from your land of the wild rabbits, or wild deer, that have accumu- lated there -naturally, see the Irish case of Brady v. Warren, (2 Ir. C. L. [1900] 645).] 1 7 Taunton 531. 2 Supra, p. 27. 39—2 612 Select Cases on the Law of Torts. [part ii. (2) The Responsibility of Possessors op Stkuctukes. [The possessor of any Structure is responsible (to all who come to it either by his invitation in respect of some affair in which he has a pecuniary Interest or by a Eight) for any Negligence, in its con- struction or management, even though committed by a person who was not his servant 1 .] INDERMAUR v. DAMES. Court of Common Pleas. 1866. L.R. 1 C.P. 274. [The plaintiff was a journeyman gas-fitter in the employ of a patentee who had supplied the defendant with a patent gas-regulator, to be paid for upon the terms that it effected a certain saving. For the purpose of ascertaining whether such saving had been effected, the plaintiff's employer sent the plaintiff to the defendant's place of business to test the action of the regulator. The defendant was a sugar-refiner; and at the place of business there was a shaft four feet three inches square, and twenty-nine feet three inches deep, used for moving sugar. The shaft was necessary and usual in the way of the defendant's business. Whilst it was in use, it was necessary that it should be open and unfenced. When it was not in use, it was sometimes necessary, for ventilation, that it should be open. But when not in use it might, without injury to the business, have been fenced by a rail. Whether it was usual to fence similar shafts (when not in use) did not distinctly appear ; but such protection was reasonable for the safety of persons upon the floor where the shaft opened. Whilst the plaintiff was engaged upon the floor where the shaft was, he accident- ally and, as the jury found, without any fault or negligence on his part, fell down the shaft ; which was unfenced, though not in use. He was seriously hurt. At the trial, Erie, C.J., directed the jury thus: — "The plaintiff has to establish that there was negligence on the part of the defendant ; that the premises of the defendant, to which he was sent in the course of his business as a gas-fitter, were in a dangerous state ; and that, as between himself and the defendant, there was a want of due precaution in respect of the hole in the floor. To my mind, there was not the least want of due care as between the defendant and persons perma- nently employed on his premises ; because the sugar-baking business requires the use of a lift, (which must be as well known to the persons employed there as the top of a staircase in every dwelling-house). But 1 See the remarks of Mr Baron Parke, in the last paragraph of Quakman v. Buknett, (supra, p. 101, ad finem). sect, iv.] Indermcmr v. Dames. 613 that which may be no negligence towards men ordinarily employed upon the premises, may be negligence towards strangers lawfully coming upon the premises. If there was no negligence on the part of the defendant ; or if there was want of reasonable care on the part of the defendant but there was also want of reasonable care on the part of the plaintiff, which materially contributed to the accident ; then the plaintiff is not entitled to recover. But if there was want of reasonable care in the defendant, and no want of reasonable care in the plaintiff, then the plaintiff is entitled to a verdict." The jury returned a verdict for the plaintiff, damages £400. [The defendant moved to enter a nonsuit.] ******* Willes, J., delivered the judgment of the Court.... It was argued that the plaintiff was at best in the condition of a bare licensee or guest ; who, it was urged, is only entitled to use the place as he finds it, (and whose complaint may be said to wear the colour of ingratitude, so long as there is no design to injure him) ; Hounsell v. Smyth 1 . We think this argument fails, because the capacity in which the plaintiff was there was that of a person on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest ; and not upon bare permission. No sound distinction was suggested between the case of the servant and the case of the employer, if the latter had thought proper to go in person ; nor between the case of a person engaged in doing the work for the defendant, and that of a person testing the work which he was to be paid for if it stood the test, (whereby impliedly the workman was to be allowed an onstand to apply that test, and a reasonable opportunity of doing so). Any duty to enable the workman to do the work in safety seems equally to exist during the accessory employment of test- ing ; and any duty to provide for the safety of the master workman seems equally owing to the servant workman whom he may lawfully send in his place Cases were also referred to as to the liability for accidents to servants employed in a business which necessarily and obviously exposes them to danger, as in Seymour v. Maddox*. The person so employed is supposed to undertake not only all the ordinary risks of the employment into which he enters, but also all extraordinary risks which he knows of and thinks proper to incur. ...But this we need not now consider ; for the plaintiff in this case was not a servant of the defendant, but the servant of the patentee. The authorities respecting guests (and other bare licensees), and those respecting servants (and others who consent to incur a risk), being therefore inapplicable, we are to consider what is the law as to 1 7 C. B., N. S. 731. 2 16 Q. B. 326. 614 Select Cases on the Law of Torts. [part ii. the duty of the occupier of a building with reference to persons resort- ing thereto in the course of business, upon his invitation, express or implied: The common case is that of a customer in a shop. But it is obvious that this is only one of a class ; for whether the customer is actually chaffering at the time, or actually buys or not, he is, according to an undoubted course of authority and practice, entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger, of which the occupier knows or ought to know, (such as a trap-door left open, unfenced and unlighted) ; Chapman v. Rothwell 1 . There Erie, J., said : " The distinction is between the case of a visitor, who must take care of himself, and a customer, who (as one of the public) is invited for the purposes of business carried on by the defendant." This protection does not depend upon the fact of a contract being entered into in the way of the shopkeeper's- business during the stay of the customer, but upon the fact that the customer has come into the shop in pursuance of a tacit invitation given by the shopkeeper, with a view to business which concerns himself. If a customer were, after buying goods, to go back to the shop in order to complain of the quality, or that the change was not right, he would be just as much there upon business which concerned the shopkeeper, and as much entitled to protection during this accessory visit, though it might not be for the shopkeeper's benefit, as during the principal visit, which was. And if, instead of going himself, the customer were to send his servant, the servant would be entitled to the same con- sideration as the master. The' class to which the customer belongs includes persons who go (not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go) upon business which concerns the occupier, and upon his invitation, express or implied. With respect to such a visitor, at least, we consider it settled law that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know ; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, (by notice, lighting, guarding, or otherwise), and whether there was .contributory negli- gence in the sufferer, must be determined by a jury as matter of fact It was ably insisted for the defendant that he could only be bound to keep his place of business in the same condition as other places of business of the like kind, according to the best known mode of construction. And this argument seems conclusive to prove that there was no absolute duty to prevent danger, but only a duty to make the 1 B. B. & E. 168. sect, iv.] Indermaur v. Dames. 615 place as little dangerous as such a place could reasonably be, having regard to the contrivances necessarily used in carrying on the business. But we think the argument is inapplicable to this case : because it was proved that, when the shaft was not in use, a fence might be resorted to without inconvenience ; and no usage could establish that what was in fact necessarily dangerous was in law reasonably safe, (as against persons towards whom there was a duty to be careful). We think there was evidence for the jury that the plaintiff was in the place by the tacit invitation of the defendant, upon business in which he was concerned ; that there was by reason of the shaft unusual danger, known to the defendant ; and that the plaintiff sustained damage by reason of that danger, and of the neglect of the defendant and his servants to use reasonably sufficient means to avert or warn him of it.... Rule discharged. [On appeal to the Exchequer Chamber, this judgment was affirmed'.] 1 L. R. 2 C. P. 311. 616 Select Oases on the Law of Torts. [part ii. [What amounts to such an Interest.] MILLER v. HANCOCK. Court of Appeal. L.R. [1893] 2 Q.B. 177. [Action for damages for personal injuries. The defendant was the owner of " Cannon Street Chambers," a building which he let out in flats to tenants. The flats were reached by a common staircase, which remained in the control and occupation of the defendant. The plaintiff, in the course of his business, had to call upon the tenant of one of these flats. In coming away, he slipped on the stairs, in consequence of their worn and defective condition ; and broke his leg. The jury found a verdict in his favour, for £200 damages.] R. M. Bray moved to enter judgment for the defendant When people have business with a tenant, it is not the landlord that invites them to use the stairs. It is the tenant who invites them. The plaintiff may have a good cause of action against the tenant, but there is none against this defendant Lord Esher, M.R....The landlord was bound so to keep the staircase as to afford a reasonably safe entrance and exit to the tenants. It seems to me that there is an implied obligation on the part of the landlord to the tenants to that effect, or else he is letting to the tenants that which will be of no value to them. What is the use of a second floor to any one, if the staircase, by which alone there can be access to it, is to be allowed to go to ruin 1 Furthermore it is obvious that in such a case the landlord must know that premises so let will be of no use to tenants, unless iSiose who supply or deal with the tenants, (such as tradesmen or others having business with them), also have access to the premises. He must know that such people will go up and down the stairs ; and those, who go up and down a staircase left open in premises of this kind in the City, would naturally suppose that such staircase would, in the ordinary course of things in regard to such premises, be under the control of and looked after by the landlord of the premises. Under those circumstances, I think that there is a relation between the landlord and those who resort to the premises for business purposes, from which a duty arises on the part of the landlord to keep the staircase, which is the means of access to the premises, in reasonably safe repair. Is there any authority for that proposition? It seems to me that the case of Smith v. London and St Katharine Bocks Co. x is an authority for the line of reasoning which I have adopted in this case. There the defendants, a dock company, 1 L. E. 3 C. P. 326. sect, iv.] Miller v. Hancock. 617 provided gangways as a means of access to ships lying in their dock. There appears to have been no express contract between the defendants and the shipowner as to these gangways ; but it was the ordinary course of business that they provided them, and so there would be an implied contract to provide them. In the nature of things they would be necessary for the use, not only of the crew, but also of other persons having business with the ship. The Court said that the defendants must have known that they would be used by such persons ; and, that being so, there was a duty on their part towards persons, between whom and them there was no other relation than that created by going on board the ship on business, to have such gangways in a safe condition. Similar reasoning appears to me to apply to this case. # # # # * * -* . Application dismissed. [Editor's Note. In Heaven v. Pender (L. R. 11 Q. B. 503) it was settled — though the precise grounds of the decision are still a matter of controversy — that when the owner of docks supplies staging for the use of ships that are under repair in his docks, he is liable, for injuries caused by defects in its condition, not only to the owners of these ships, but also to workmen whom they employ to do the repairs ; though there is no contract between the workmen and him. This liability exists even though he does not know of the defect, and though the defective thing is (unlike that in Indermaur v. Dames) no longer under his control. For he derives pecuniary benefit from admitting ships into his docks for repair.] [See also Todd v. Flight, supra, p. 457.] 618 Select Oases on the Law of Torts. [part ii. [The rule applies even to a merely temporary structure; e.g. a timber stand, on a racecourse.] FRANCIS v. COCKRELL. Court of Queen's Bench. 1870. L.R. 5 Q.B. 184, 501. [The defendant, acting on behalf of himself and several other persons interested in the Cheltenham steeplechases, entered into a contract with Messrs Eassie by which they engaged to erect and let to the defendant and the other persons a temporary stand for the accommodation of persons desiring to see the races. The stand having been erected, the defendant, on behalf of himself and his colleagues, received money from visitors for the use of places on the stand. Messrs Eassie were competent and proper persons to be employed to erect the stand, but it was in fact negligently erected by them; and in consequence of its being so negligently erected it fell, and the plaintiff, who had paid for admission, and was upon the stand looking at the races, was injured by the fall. Neither the plaintiff nor the defendant knew of the improper construction of the stand. The plaintiff sued to recover damages for his injuries. A case was stated for the opinion of the Court as to whether or not the plaintiff was entitled to recover, either in an action of tort or one of contract. H. Matthews, for the defendant, distinguished the case from Inder- manr v. Dames 1 on the ground that there the defendant knew of the danger.] ******* Hannen, J., delivered the judgment of the Court for the plaintiff. ...In Grote v. Chester and Holyhead Ry. Go." the point now under con- sideration was directly raised. There an accident happened from the defective construction of a bridge over a railway, for the erection of which the company had employed a competent engineer. It was left to the jury in effect to say whether the engineer as well as the company had used due care and skill. For the defendants' it was objected that they would not be liable unless they had been guilty of negligence, and after verdict for the plaintiff 3 it was argued for the defendants that, as they had engaged the services of a most competent engineer in the construction of the bridge, they had done their duty. Upon which Parke, B., said 4 , "It seems to me they 1 Supra, p. 612. 2 2 Ex. 251. 3 Whose contract of carriage was not with the defendants. 1 2 Ex. at p. 254. sect, iv.] Francis v. Gockrell. 619 would still be liable for the accident, unless he also used due and reasonable care and employed proper materials in the work"; and later, with reference to the case of Sharp v. Grey 1 , he says, "A coach- proprietor is liable for an accident which arises from an imperfection in the vehicle, although he has employed a clever and competent coachmaker " ; and the Court held that the jury had been properly directed, saying, "It cannot be contended that the defendants are not responsible for the accident, merely on the ground that they have employed a competent person to construct the bridge."... [An appeal was then made to the Exchequer Chamber, where the following judgments were delivered.] Martin, B — I do not at all pretend to say whether the relation of the parties raised a contract, or a duty. It seems to me exactly the same thing; but I am of opinion that when a man has erected a stand of this kind for profit, that he contracts impliedly with each individual who enters there, and pays money to him for the entrance to it, that it is reasonably fit and proper for the purpose; or, if you choose to put it in another form, that it is the duty of a person, who so holds out a building of this sort, to have it in a fit and proper state for the safe reception of the persons who are admitted. I apprehend it might have been described, at a time when pleading was more strict than it is now, either as a contract or as a duty, and that it is one of those implied contracts which, in point of fact, is the same as a duty. I do not at all distinguish between them, and, therefore, in my judgment, the duty was personal on the defendant, when he received this money, to provide that the stand was fit and proper — ordinarily fit and proper for the purpose. Not that I consider the defendant in any way an insurer, and responsible for anything beyond what a man would reasonably be responsible for; but I think that he was respon- sible for that stand being in a fit and proper condition, — in a reasonably fit and proper condition for the purpose for which he took the money and admitted the person ; and, therefore, 1 am very clearly of opinion that, supposing the defendant to have been a person who had fitted up this stand for his own private benefit, he would be responsible on that contract. But the defendant relies upon the fact that Messrs Eassie, the contractors, built the stand. The facts were, that a short time before the race Messrs Eassie were employed by the defendant and others for the purpose of erecting this stand, and the case finds that Messrs Eassie were very competent and proper persons to be employed for the purpose of erecting a sufficient and proper stand ; and it was contended by Mr Matthews that the plaintiff would have had a right 1 9 Bing. 457. 620 Select Cases on the Law of Torts. [part ii. of action against Messrs Eassie. In my opinion he would not.... The law of England looks at proximate liabilities as far as is possible, and endeavours to confine liabilities to the persons immediately con- cerned; and I apprehend it would be impossible to contend that a person, who had erected a building of this kind strictly according to his contract, would be responsible to a stranger who happened to go upon it, if it is found not to be fit for its purpose I think the plaintiff is clearly entitled to recover from the defendant, either in Case or in contract Cleasby, B. The defendant being a party to providing a stand for the use of the public, it appears to me that he was certainly under some duty in connection with that stand so provided by him ; and the question is, whether that duty is only a duty of a personal nature, that is to say, only so far as regards his own personal interference in the matter, that he shall use due and reasonable care himself, or whether it was a duty annexed to the thing itself, a duty in con- nection with the way in which the thing itself should be erected. The public, or those coming to use this place, have no idea of con- v tracting with any particular person, or of any personal obligation in anybody. What they rely upon is the thing itself. They rely upon the security of the thing itself; and I think that the duty on the part of those who provide the building is co-extensive with that, and the duty of the defendant was to take care that the stand should be erected so as to be reasonably fit and proper for the purpose. Now, it appears that the stand ' was not erected so as to be reason- ably fit and proper for the purpose; and, although, of course, until somebody comes to make use of this building no obligation can arise which can be enforced, yet as soon as any person does come to make use of the building, then, like the other cases where the public do not contemplate any particular person, the duty which has been imposed upon the defendant makes a right in the person who has connected himself with the matter, and that right and breach of duty give rise to a cause of action in the person who has suffered by the breach of duty. That is the construction I am disposed to put upon the relation of the plaintiff and defendant in this case. The liability would not apply to latent defects, because the defendant is only to take care that it is properly erected so as to be reasonably fit and proper. Here the erection was negligently done.... I think the proper ground of decision in this case is, that the duty here is not of a personal nature merely, as regards the man himself, that he will take due and reasonable care (for the defendant did take due and reasonable care in employing a respectable and proper builder) ; it is not personal in that way, nor do I think that there was any personal contract in this sense between the defendant and the plaintiff; nor do I put my sect, iv.] Francis v. Cochrell. 621 decision so entirely upon the ground of contract between them; I might lean in that direction, but I do not put my decision upon that ground. I think the plaintiff relied upon the thing itself being in a proper state ; and as the fault or breach of duty of the defendant was that it was not in that state, the plaintiff is entitled to recover in this action. Judgment affirmed. [But to a mere Licensee 1 he is not responsible except for a "Trap," i.e. for some concealed danger". ,] CORBY v. HILL. Court or Common Pleas. 1858. 4 C.B. 1ST.S. 556. [Action for negligently leaving certain slates upon a certain road whereby the plaintiff's horse was injured. The road in question was a private road leading from the turnpike-road to the Hanwell Lunatic Asylum and to the residence of the superintendent, Dr Saunders. The defendant, a builder, was employed to do certain work at the asylum ; and, with the consent of the owners of the land, stacked certain slates and other materials upon a portion of the road, without taking the precaution of placing a light -near them at night. In consequence of this, the plaintiff's servant, who was driving a horse and carriage along the private road to the residence of Dr Saunders, during the night-time, not seeing the slates, drove against them, and seriously injured the horse. In answer to questions put to them by the learned judge, the jury found that the defendant had the consent of the owners of the property for placing the slates and materials where he placed them, but upon the usual terms of properly providing for the safety of the public, or of such of the public as had permission to use the way; that there was negli- gence in leaving the stack without a proper light; and , that that 1 As to Licenses, see Wood v. Leadeittek, supra, p. 392. 2 [Editor's Note. "A permission to use a Way is of the character of a gift. The principle of law as to gifts is, that the giver is not responsible for damage resulting from the insecurity of .the thing, unless he knew its evil character at the time and omitted to caution the donee. There must be something like Eraud on the part of the giver, before he can be made answerable.... Otherwise a man who allows strangers to roam over his property would be answerable for any danger which they might encounter whilst using the licence." (Per Willes, J., in Gautret y..Egerton, L. E. 2 C. P. at p. 375.)] 622 Select Cases on the Law of Torts. [part ii. negligence was chargeable upon the defendant, in conjunction with the owners of the soil. Byles, J., entered a verdict for the plaintiff.] Huddleston, Q. C, moved to enter it for defendant Stone v. Jackson 1 comes very near this case. There — in an action for an injury to the wife of the plaintiff through the negligence of the defendant in leaving an open vault or cellar on his own premises unfenced, whereby she fell in and was injured, — the evidence was, that many persons were in the habit of going across the spot where the vault was, for the purpose of making a short cut from a street to the main road by avoiding an angle, but that the owner of the premises, as often as he saw them, turned them back. And it was held that the defendant was not liable. [Williams, J. The plaintiff was not a trespasser here, as the woman was in that case.] ...In Southcole v. Stanley*, the declaration alleged that the defendant was possessed of an hotel into which he had invited the plaintiff to come as a visitor*, and in which there was a glass door, which it was necessary for the plaintiff to open for the purpose of leaving the hotel, and which the plaintiff by the permission of the defendant lawfully opened for the purpose aforesaid, and that, by and through the default of the defendant, the door was then unfit to be opened, and a large piece of glass fell from the door and wounded the plaintiff : and it was held that no cause of action was disclosed. ******* Williams, J I see no reason why the plaintiff should not have a remedy against such a wrong-doer, just as much as if the obstruction had taken place upon a public road. Good sense and justice require that he should have a remedy, and there is no authority against it. All the cases referred to, with one exception, are cases where the question has been as to the remedy which a trespasser has for an injury resulting to him from the manner in which the proprietor of the land has dealt with it. They therefore have nothing to do with the case, before us, where the plaintiff is not a trespasser. The case of Southeote v. Stanley stands entirely on the relation of host and guest ; and was decided upon this principle, that one who chooses to become a guest cannot complain of the insufficiency of the accommodation afforded him Willes, J.... The question is, whether there is any legal remedy for a person lawfully using a road, to whom injury results from the act of a third person in negligently placing an obstruction upon the road. I should have thought that the bare statement of the proposition was enough. The defendant had no right to set a trap for the plaintiff. i 16.C. B. 199. 2 1 H. & N. 247. 3 [Editor's Note. I.e. , a social guest, not a customer. The latter would have come under the " Interest " rule.] SECT, iv.] Corby v. Hill. 623 One who comes upon another's land by the owner's permission has a right to expect that the owner will not dig a pit thereon, or permit another to dig a pit thereon, so that persons lawfully coming there may receive injury Rule refused. [See also Lane v. Cox, supra, p. 533.] [And to a mere Trespasser he is not responsible except Jor a Nuisance (or some danger akin to one).] BARNES v. WARD. Court of Common Pleas. 1850. 9 C.B. 392. [Action under Lord Campbell's Act by the administrator of Jane Barnes, who had been killed by falling into an excavation, on the defendant's land, which he had left unfenced.] The facts were as follows: — The deceased, Jane Barnes, between eight and nine o'clock in the evening of the 26th of October, was proceeding, in company with her sister and a child, along an unfinished pathway near a row of houses then in the course of erection by the defendant (a builder), called Victoria Grove Terrace, in the Uxbridge Road. It being dark, and no light near, the deceased accidentally fell down the area in front of one of the houses ; and died shortly afterwards from the injuries she thus sustained. It appeared that the deceased was sober at the time of the accident; and that there was no fence to guard the area, but merely a low stone coping for the reception of iron railings. It further appeared that there had always been a thoroughfare ; but the evidence as to what particular part of the newly formed road had constituted the ancient pathway was somewhat confused. The land belonged to the Bishop of London, by whom it had been leased for terms of years to various persons, under one of whom the defendant held the premises in question. On the part of the defendant it was contended, firstly, that there was no sufficient evidence that the footpath was a public way ; and, secondly, that a man has a right to excavate his own land to its extremity, and there is no common-law obligation upon him to fence or guard such excavation, even though it abut upon a highway.... Coltman, J., told the jury, that, if there was a public way abutting on the area, which would be dangerous to persons passing, unless fenced — or if there was a public way so near that it would produce danger to the public, unless fenced— the defendant would be liable; 624 Select Cases on the Law of Torts. [part ii. (unless the accident was occasioned by want of ordinary caution on the part of the deceased). The jury found that there was an immemorial public way abutting on the area, and they returned a verdict for the plaintiff, damages £300 ; (being £100 to the husband of the deceased, £75 each to her two infant daughters, and £50 to her son). [A motion was made to enter judgment for the defendant ; and was argued twice.] ******* Maulb, J., delivered the judgment of the Court. ...The arguments for the plaintiff were that, when a public way has existed from time immemorial, the public have a right to enjoy it with ease and security; and that if a man prevents that enjoyment, even by the use of his own property, he is responsible as for a public nuisance. And the case was put of the proprietor of land, over which a public way passes, excavating his land on each side thereof, so as to leave the line of way running between two precipices ; which it was argued would, in effect, make the way impassable, and therefore be a public nuisance. And the cases of Coupland v. Hardingham 1 and Ja/rvis v. Dean" were cited.... On the part of the defendant, it was argued that no use which a man chooses to make of his own property can amount to a nuisance to a public or private right, unless it in some way interferes with the lawful enjoyment of that right ; that in the present case the excavation of the area in no manner interfered with the way itself, or was in any sense hurtful or perilous to those who confined themselves to the lawful enjoyment of the right of way; and that it was only to those who, like the deceased, committed a trespass, by deviating on to the adjoining land, that the existence of the area (though not fenced) could be in any degree detrimental or dangerous. In support of this view of the subject, reliance was placed on the case of Blyth v. Topham 3 ;... with respect to which case it must be observed that there the existence of the pit, in the waste adjoining the road, is not said to have been dangerous to the persons or cattle of those who passed along the road, if ordinary caution were employed. In the present case the jury expressly found the way to have existed immemorially ; and they must be taken to have found that the state of the area made the way dangerous for those passing along it, and that the deceased was using ordinary caution in the exercise of the right of .way at the time the accident happened. The result is — considering that the present case refers to a newly made excavation adjoining an immemorial public way, which rendered the way unsafe to those who used it with ordinary care — that it appears to us after consideration, that the defendant in having made that excavation was 1 3 Camp. 398. 2 3 Bingham 447. 3 Supra, p. 531 ; Cro. Jao. 158. sect, iv.] Barnes v. Ward. 625 guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road. For the danger thus created may reasonably deter prudent persons from using the way ; and thus the full enjoyment of it by the public, is, in effect, as much impeded as in the case of an ordinary nuisance to a highway. With regard to the objection that the deceased was a trespasser on the defendant's land at the time the injury was sustained, it by no means follows from this circumstance that the action cannot be maintained. A trespasser is liable to an action for the injury which he does; but he does not forfeit his right of action for an injury sustained. Thus in the case of Bird v. Holbrook 1 , the plaintiff was a trespasser — and, indeed, a voluntary one — but he was held entitled to an action for an injury sustained in consequence of the wrongful act of the defendant (without any want of ordinary caution on the part of the plaintiff), although the injury would not have occurred if the plaintiff had not trespassed on the defendant's land. This decision was approved of in Lynch v. Nurdin*. . . . Rule discharged. [Editor's Note. In Hardcastle v. South Yorkshire Railway (4 H. & N. 67) Martin, B., pointed out that in Barnes v. Ward the danger was not only to trespassers, but might have affected even a person who had never voluntarily quitted the highway at all, e.g. if such a person were seized with sudden giddiness or if his horse suddenly started ; so that the excavation was obviously a nuisance to the highway. And the court, whilst " entirely concurring " with the decision in Barnes v. Ward, held its principle to be inapplicable to the circumstances of the case before them ; inasmuch as the excavation by which Hardcastle had been injured was not sufficiently near the highway to be dangerous to travellers thereon. Thus — so long as he keeps clear of those extreme omissions which are in themselves unlawful — a landowner need not do anything to make his premises safe for trespassers. As was vividly said by an American judge, (Clark, J., in Frost v. Railroad Co., 64 New Hampshire, 220), " The owner of a fruit-tree is not bound to inclose it — or to exercise care in securing the staple and lock which hold his ladder — for the protection of trespassing boys who may be attracted by the fruit. Neither is the owner of premises upon which there is a pond, legally required to exercise care in securing his gates to guard against accidents to trespassing children. And a man having in his possession agricultural or mechanical tools is not responsible for injuries caused to trespassers by careless handling." Indeed an owner may go so far as to create sources of danger, if they are slight and obvious, to deter trespassers ; e.g. he may, on the top of any wall that is not very low, set spikes or broken glass. Yet even to trespassers he will become liable, should they be injured through his action in setting up anything that is intrinsically unlawful, like the pit beside the highway, or that creates a peril which is serious or is concealed, like a spring-gun in a plantation, (Bird v. Holbrook, 4 Bingham 628). But he is entitled to protect his premises, during the dead of the night, by letting loose, within a walled yard or garden, a dog, even though fierce; (Sarch v. Blackburn, 4 C. & P. 297).] 1 4 Bingham 628. 2 1 Q. B. 37 ; supra, p. 27. K. 40 626 Select Cases on the Law of Torts. [pakt ii. [All these several forms of responsibility arise irrespectively of any Contract between the parties.] FOULKES v. THE METROPOLITAN DISTRICT RY. CO. Court op Appeal. 1880. L.R. 5 C.P.D. 157. [The plaintiff had taken, at the Richmond station of the London and South "Western Railway Company, a return ticket to Hammer- smith. Over the London and South Western Company's lines the defendant company had running powers. The plaintiff made his return journey in the defendants' train. Owing to their carriage, in which he was travelling, not being adapted to the height of the Rich- mond platform, he fell and was injured. At the trial of the action it was assumed that it was from the defendant company that the plaintiff had taken his ticket. This error was afterwards discovered. The jury found negligence in the defendants, and gave a verdict for plaintiff. A Divisional Court having refused to set aside the verdict, the defendants appealed to the Court of Appeal.] ******* Bramwell, L. J.... Even though the contract were with the South Western, the plaintiff is entitled to recover against these defendants. In that case there would be no duty of contract, and consequently no cause of action for a nonfeasance. But there would be that duty which the law imposes on all, namely, to do no act to injure another. It is clear that if a porter of the defendants had run a truck against the plaintiff at Broadway station, and hurt him, he could maintain his action against the defendants. So if he had left the carriage there, and while getting in, the train improperly started, and he was hurt, or if his hand was wrongfully pinched. These are clear cases, but the law is the same in cases not so clear; for example, if the carriage he was put in was dangerous, if the step he had to tread on was rotten. Apply that to the present case. The difficulty is with the question and finding : the jury have found there was negligence. Now, there was no negli- gence. What was done or omitted was wilful. But the substance of the finding of the jury is that the carriage was dangerous with reference to the platform, or the platform with reference to the carriage, and that the plaintiff might and did reasonably act in the belief that they were not in that state, but safe for him to use; that in truth the combined arrangements were a trap or snare: so that if he had been carried gratuitously as by a friend, he would have had a right of action against him. With the propriety of so finding we have nothing to do. There was according to that finding a tort, (whether in the defendants alone or in conjunction with the South Western does not matter) ; and the plaintiff is entitled to recover. ******* Appeal dismissed. Dickson v. Eeuter's Telegram Co. 627 PAET III. THE RELATIONS BETWEEN TORT AND CONTRACT. [If your breach of your contract with one person should injure others, they usually have no remedy against you, even in Tort. E.g., a telegraph company by whose negligence a telegram is transmitted incorrectly commits no Tort against the addressee misled by it.] DICKSON v. REUTER'S TELEGRAM CO. Court or Appeal. 1877. L.R. 3 C.P.D. 1. Appeal from the judgment of the Common Pleas Division 1 , in favour of the defendants ; on demurrer to the statement of claim. The plaintiffs were merchants at Valparaiso, and were a branch house of the firm of Dickson, Robinson, & Co., of Liverpool; the defendants were a telegraph company, having their chief offices in London, and agencies in Liverpool and in various parts of the world, including South America. The defendants had a system of forwarding in one "packed" telegram the messages of several senders, each message being distinguished and headed by a registered cipher known to the defendants and their agents and also to the senders; which messages, on receipt of the packed telegrams by the defendants' agents, were transmitted to the proper recipients. Previous to December, 1874, Dickson, Robinson, & Co. were in the habit of sending messages to the plaintiffs through the defendants' company, and were instructed by the defendants to head the messages by a registered cipher word indicating that the messages were intended "for the plaintiffs. On the 26th of December, 1874, the plaintiffs received at Valparaiso a telegraphic message, which they understood, and reasonably under- stood to be a direction from Dickson, Robinson, and Co. to ship barley to England; but the message was not in fact intended. for the plaintiffs. The mis-delivery was caused by the negligence of the defendants or their agents. On receiving the telegram, the plaintiffs proceeded to execute the supposed order ; and shipped large quantities of barley to England. Owing to a fall in the market for barley, the plaintiffs, by reason of the shipments, sustained a serious loss ; and they now claimed that the defendants' company should reimburse them for that loss. Herschell, Q.G., for plaintiffs.... This action can be supported on two grounds: first, the defendants warranted to the plaintiffs that they i L. B. 2 G. P. D. 62. 628 Select Cases on the Law of Torts. [part m. had been employed to deliver this message to the plaintiffs, and the defendants are liable for a breach of warranty, in analogy to the case of Gollen v. Wright*, where the agent represented that he was acting for a principal ; secondly, the defendants are carrying on the business of delivering telegraphic messages, and they are liable to anyone dealing with them who is injured through their negligence in carrying it on.... If a person carrying on a business acts negligently in conducting that business, he is liable to any person dealing with him who is injured by his negligent act. The defendants, in carrying on their business, negligently delivered a message, which they knew might be mischievous if they delivered it to the wrong person. The telegram was supposed by the plaintiffs to be received, not from a stranger, but from persons who. were in the habit of dealing with the defendants in the course of their business by means of a cipher ; and it was the duty of the defendants to use the cipher with due care. This they failed to do, and therefore they are liable to compensate the plaintiffs for the injury sustained by them. A great analogy exists between the liability of a common carrier and a telegraph company : Sedgwick on Damages, 6th ed. p. 443 ; New York and Washington Printing Telegraph Company v. Dryburgh'. A carrier is bound to deliver safely the goods intrusted to him, and a telegraph company are equally bound to transmit to the proper recipients the messages which they undertake to send along their lines. If the defendants are not liable in the present action very serious consequences will ensue. A telegraph company may deliver a message to a person for whom it is not intended, and may with impunity cause very great injury to the v person who receives it and is induced to act upon it. The consequence will be that telegraph companies will become 1 7 E. & B. 301; 26 L. J. (Q. B.) 147; in Ex. Ch. 8 E. & B. 647; 27 L. J. (Q. B.) 215. 2 [Editor's Note. In this case, a man handed in a telegram to Dryburgh, a florist, ordering " two hand bouquets." The telegraph-clerk read it as " two hund bouquets " ; and, assuming that this must mean " two hundred bouquets," telegraphed those words. The florist accordingly cut that quantity of flowers, but the customer refused to accept them. It was admitted that the company were liable to the customer. But they repudiated any liability to Dryburgh. The Supreme Court of Pennsylvania, however, held them liable ; and the decision has been followed throughout the United States. Still this American liability in Tort, for mis- transmission, does not extend to mon-transmission ; see Bigelow on Torts, 7th ed. sec. 708. The customer would not be liable to the florist for the superfluous bouquets. For the company were merely "special" agents, their authority being limited to the transmission of the message as actually handed in; see Henkel v. Pope, L. B. 6 Ex. 7.] Dickson v. Reuter's Telegram Co. 629 careless in the conduct of their business, and very great public detri- ment will be sustained. ******* Brett, L.J. Upon consideration of the nature of the business of a telegraph company, it seems to me plain that all that they undertake to do is to deliver a message from the person who employs them, and that they perform the part of mere messengers ; primd facie, therefore, their only contract is with the person who employs them to send and deliver a message. In the present case the plaintiffs did not send the message, and therefore the defendants have made no contract with them. The defendants have in effect made a representation which is false in fact, but which they did not know to be false at the time of making it. If the case for the plaintiffs be simply that there was a misrepre- sentation upon which they have reasonably acted to their detriment, it must fail, owing to the general rule that no erroneous statement is actionable unless it be intentionally false. This seems to be admitted by the plaintiffs' counsel ; it is urged, however, that Gollen v. Wright has introduced an exception to that rule. But after the argument of the defendants' counsel I have come to the conclusion that the decision in that case was founded upon a different and independent rule ; which may be stated to be, that where a person either expressly or by his conduct invites another to negotiate with him upon the assertion that he is filling a certain character, and a contract is entered into upon that footing, he. is liable to an action if he does not fill that character. But the liability arises not from the misrepresentation alone, but from the invitation to act and from the acting in consequence of that invitation. Therefore the decision in Gollen v. Wright 1 - does not establish an exception to the rule that an innocent misrepresentation does not form the ground of an action. Now the telegraph company, being mere messengers, did not either expressly or impliedly invite the plaintiffs to act with them in any character ; and the present facts do not fall within the principle of that case Beamwell, L.J It is argued that this is a case of negligence. But before any person can complain of negligence, he must make out a duty to take care 2 .... And it has never been laid down that the exemption from liability for innocent misrepresentations is taken away by carelessness It has been argued that if this action be not maintainable the consequences will be mischievous. I am not of that opinion. If it were held that a person is liable for a negligent misrepresentation, 1 7 E. & B. 301; 26 L. J. (Q. B.) 147; in Ex. Ch. 8 E. & B. 647; 27 L. J. (Q. B.) 215. 2 [Editor's Note. See pp. 531 — 4, supra.] 630 Select Oases on the Law of Torts. [part hi. however bond fide made, a great check would be put upon very many useful and honest communications, owing to a fear of being charged, and perhaps untruly charged, with negligence. I do not think the rule upon which we are acting unreasonable, either in itself or in its application to a telegraph company. It is to be recollected that a telegraph company are generally under some liability to the sender of the message, and if they are careless in delivering it and thereby occasion damage to him, he may maintain an action against them ; and (apart from the natural desire to carry on their business properly so as to gain customers) the existence of this liability is a kind of security for the proper delivery of the messages intrusted to the telegraph company. I wish further to say that I do not see any analogy between the liability of a common carrier and that of a telegraph company. A carrier is liable both to the person who employs him and also to the owner of the goods : but the plaintiffs did not employ the defendants, and they are not owners of the message.... Judgment affirmed. [Editor's Note. Of the five grounds of liability suggested by the plaintiff — ■ (1) Warranty, (2) Misrepresentation, (3) Bailment, (4) Public policy, (5) Negligence — the fifth is shewn by Sir F. Pollock to be far the most solid ; see Pollock on Torts, pp. 531 — 6. The American Courts, whilst agreeing in establishing the liability, have differed as to the grounds on which they establish it. One ground, suggested in Dryburgh's case by the Court, is that the telegraph company ought, "for all purposes of liability, to be considered as much the agent of him who receives the message as of him who sends it " ; the recipient being supposed to ratify, by acting on the message, an authority which the sender had — on behalf of the recipient — conferred upon the company to act as the recipient's agent.] Pippin and wife v. Sheppard. 631 [But sometimes your breach of your contract with one person may constitute a Tort against another.] PIPPIN and wife v. SHEPPARD. Court of Exchequer. 1822. 11 Pbice 401. [Action on the case by a husband and wife against a surgeon, for negligent and unskilful treatment of the wife. The defendant demurred ; on the ground that the declaration did not state that the defendant had been retained as such surgeon by the plaintiffs or either of them, nor did it state by whom he had been retained.] Carter for plaintiffs.... The plaintiffs seek damages for the suffering endured by the wife ; to which they will be entitled, if they prove their declaration, without reference to any Other person who may have retained the surgeon. Whatever right that person might have to sue on the contract, they have a right to sue for the special damage, a right which is independent of any contract and is founded on a different cause of action Richards, L.C.B The question is, to whom was the injury done? If a stranger had sent the defendant as a surgeon to cure this woman, undertaking to pay him for his attendance, he would not be entitled to recover for injury done to her in consequence of the surgeon's negligence. The only person who can properly sustain an action for damages for an injury done to the person of the patient, is the patient himself. Damages on that account could not be given to any other person, although the surgeon may have been retained by him to undertake the cure. G arrow, B. ...Patients would frequently be precluded from seeking damages, if it were necessary — to enable them to recover — that there should have been a previous retainer, on their part, of the person professing to be able to cure them. In cases of surgeons retained by public establishments the patient would be without redress. For it could hardly be expected that the governors of an Infirmary should bring an action against the surgeon employed by them to attend a child (of poor parents) who may have suffered from his inattention. ******* Judgment for plaintiffs. [Editor's Note. Similarly, a child who had been injured in a railway accident was held entitled to sue the railway company, although his mother, in charge of whom he was travelling, had (by an honest mistake) taken no ticket for him when taking her own ticket. For even if the circumstances did not raise (as most of the judges thought they did) a contract to carry the child as well as the mother, yet 632 Select Cases on the Law of Torts. [part hi. " the right which a passenger by railway has to be carried safely does not depend on his having made a contract ; but the fact of his being a passenger casts on the company a duty to carry him safely.... The child was taken into the train and received as a passenger by the railway company's servants, with their authority. Under these circumstances, does not the law require those who were carrying the child to take reasonable care that he should come to no damage?" (Per Blackburn, J., in Austin, v. G. W. By. Co., L. E. 2 Q. B. at p. 445.) Cf. Grote v. Chester, supra, p. 618.] [See also Langkidge v. Levy, supra, p. 476 ; Waite v. N. E. Ry. Co., supra, p. 585 ; Francis v. Cockrell, supra, p. 618 ; and Foulkes v. Metropolitan Ry. Co., supra, p. 626.] [And it is a Tort to cause damage to any one by maliciously inducing a person, who lias made a contract with him, to commit a breach of it] See Lumley v. Gye, supra, p. 520.. THE END. CAMBRIDGE : PRINTED BY J. AND C. F. CLAY, AT THE UNIVERSITY PRESS.