/^ic. CfnrttHl ICam ^rljODl Slibratrg Cornell University Library KD 1949.S17 1916 The law of torts :a treatise on the Engl 3 1924 022 354 173 The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022354173 THE LAW OF TORTS. BY THE SAME AUTHOR. JURISPRUDENCE. FIFTH EDITION. London : STEVENS AND HAYNB9. 1916. THE LAW OF TORTS A TREATISE ON THE ENGLISH LAW OF LIABILITY FOE CIVIL INJUEIES.. BY JOHN W. g^LMOND, SOLICITOE-GENEEAL FffE NEW ZEALAND. Jottrt^ €iritm«. LONDON: STEVENS AND HAYNES, 13, BELL YAED, TEMPLE BAE. 1916 3111 ( V ) PREFACE TO THE FOUETH EDITION. The revision of this Work for a new Edition ha,s led me to realise more fully the uncertainties and imper- fections which still exist in that portion of the law of Torts which relates to liability for negligence. Since the date of the first Edition in 1907 judicial decision has done but little to clear away the doubts and to fill up the lacunae which exist in this depart- ment of the law, and in respect of many matters it still remains impossible to state the law with any confidence or completeness. Had the law been content to adopt the uniform principle that liability for accidental harm depended in all cases on the existence of negligence on the part of the defendant or his servants, most of the serious difficulties and complexities which now exist would have been elimi- nated. Qnfortunately, however, for the simplicity and intelligibility of our legal system, it has been found necessary to recognise a number of cases of absolute liability, that is to say, liability for accidental harm independent of any negligence on the part of the defendant or his servants, and the scope and limits of these exceptional rules still remain largely covered VI PREFACE TO THE FOURTH EDITION. with doubt and darkness. This is more especially so with the rule established by the decision of the House of Lords in Rylands v. Fletcher in 1866. No decision in the law of Torts has done more to prevent the establishment of a simple and uniform system of civil responsibility, and its true meaning and limitations remain to this day the subject of dispute and uncer- tainty. Similar difficulties beset the law as to liability for injuries caused by mischievous animals. So also with the line of cases as to vicarious responsibility for the negligence of independent contractors. In addition to the difficulties created by such exceptional rules of absolute or vicarious liability, much uncertainty still exists as to the scope of the duty of care, even where negligence is a necessary ground of responsibility. The law, for example, as to the duty of the occupier of dangerous premises towards the various classes of persons who may enter thereon is still in such a condition as to render a complete and confident exposition impossible. So also with the law as laid down in Earl v. Luhhock, (1905) 1 K. B. 253, and other cases dealing with the liability towards third persons of him who delivers dangerous chattels from his possession. These and similar difficulties do not relate merely to isolated matters of detail. They relate to far-reach- ing principles of civil liability. Pending, therefore, their authoritative settlement, an attempt to set forth the law of negligence in any systematic manner must necessarily be merely provisional. The remaining PREFACE TO THE FOURTH EDITION. Vll bi-anches of the law of Torts are, on the other hand, for the most part well developed and well settled except in points of detail. In the present Edition, further consideration has led me to modify in some respects the statement of the law as to contributory negligence. In view of the decision of the House of Lords in Lloyd v. Grace, Smith ^ Go., (1913) A. C. 716, it has been necessary to re- write tlie passages dealing with the liability of an employer for the wilful wrongdoing of his servant. In a new section more detailed consideration has been given the various exceptional cases in which an employer is responsible for the negligence of an inde- * pendent contractor. The difficult question as to the exact scope and nature of the rule in Indermaur v. Dames (1866), 2 C. P. 311, as to the responsibility of occupiers to persons lawfully entering on their premises has been made the subject of fuller treatment. A new section has been added dealing specifically with the responsibility of an occupier towards children — a ques- tion of considerable importance since the decision in Gooke V. Midland Great Western Railway of Ireland, (1909) A. C. 229. In view of the decision of the Court of Appeal in Hurst v. Picture Theatres, Limited, (1915) 1 K. B. 1, the section dealing with Wood v. Leadbitter has been to some extent re-wiitten. A new section has been included dealing with the defence of statutory authority in cases falling within the rule in Rylands v. Fletcher. In other respects I have retained unaltered the former exposition of this rale and of the limits Vlll PREFACE TO THE FOUETH EDITION. imposed upon it by Nichols v. Marsland, though I fully realise the uncertainty of the matter and the force of the criticism of Sir Frederick Pollock in his Preface to Volume 143 of the Revised Reports. I have to thank Mr. A. W. Chaster, LL.B.. Barrister-at-Lavif, for his care in attending to the passage of this Edition through the press. J. w. s. Wellington, New Zealand, November, 1915. ( ix ) PREFACE TO THE FIRST EDITION. I HAVE endeavoured in this book to set forth the principles of the law of torts with as much precision, coherence, and system as the subject admits of, and with as much detailed consideration as is necessary to make the work one of practical utility. No book is justified by the good intent of its author; but I hope that the present work will be found of use to lawyers and to students of law as a general exposition, in moderate compass, of an extensive and in some respects difficult and imperfectly developed department of our legal system. J. W. S. WELLiNGipN, New Zealand, August 5, 1907. ( xi ) CONTENTS. CHAPTEE I. GENERAL PRINCIPLES OP LIABILITY. SECTION 1. The Nature of a Tort L'. The General Conditions of Liability 3. Absolute Liability 4. Wrongful Intent and Malice 5. Negligence 6. The Standard of Care 7. The Proof of Negligence 8. Bes ipsa loquitur 9. Contributory Negligence 10. The Eule in Daviea v. Mann 11. Contributory Negligence of Plaintifi's Servants and Agents 12. Contributory Negligence and Collisions at Sea 13. Volenti non fit injuria PAOE 1 8 14 IS 21 27 30 33 35 41 45 46 .n CHAPTEE II. PARTIES. 14. The Crown ... 56 15. Public Officials ... 57 16. Foreign Sovereigns and Ambassadors ... 59 17. Bodies Corporate ... 60 18. Trade Unions 65 19. Minors ... 66 20. Lunatics ... ... 69 21. Married Women ... 71 22. Executors and Administrators ... 73 23. Joint Wrongdoers ... 78 24. Contribution between Wrongdoers . . . ... 84 25. Persons jointly Injured ... 86 26. Principal and Agent .S7 27. Partners ... 90 28. Masters and Servants ... 90 29. The Course of Employment ... 96 Xll CONTENTS. SECTION 30. The Eule of Common Employment 31. The Employers' Liability Act, 1880 o2. The Workmen's Compensation Act, 1906 33. Employers of Independent Contractors PAGE . 105 . 110 . 113 . 113 CHAPTEE III. JUDICIAL EEMEDIBS. 34. Classes of Eemedies for Torts ... 120 35. Damages ... 121 36. Eemoteness of Damage ... 125 37. Successive Actions on the same Facts ... 135 38. Injunctions ... 144 39. The Limitation of Actions ... ... 152 40. Special Periods of Limitation ... 155 41. Felonious Torts ... 157 42. Assignment of Eights of Action for Torts ... 169 43. The Waiver of Torts ... 162 44. Foreign Torts ... 165 CHAPTEE IV. EXTRAJUDICIAL REMEDIES. 45. Self-Defence ... 168 46. Prevention of Trespass ... 16& 47. Ee-entry on Land ... 171 48. Defence and Eeoaption of Chattels 173 49. Abatement of Nuisances ... 175 50. Distress Damage Feasant ... 178 51. 52. 53. 54. 55. CHAPTEE V. TRESPASS TO LAND. Old Forms of Action. Trespass and Case The Nature of Trespass to Land The Title of the Plaintiff Trespass a6 i/(!iso The Measure of Damages in Trespass 182 186 191 194 197 CONTENTS. XIU CHAPTBE VI. DISPOSSESSION OF LAND. SKCTION 56. The Action of Ejectment o7. The Action for Mesne Profits PAQE . 202 . 205 CHAPTER VII. NUISANCE. 58. The Nature of Nuisance 59. Damage caused by Nuisance 60. Ineffectual Defences ... 61. The Tiule in Hi/lands Y. Fletcher 62. Pirst Exception : Things Naturally on Land 63. Second Exception : Consent of the Plaintiff €4. Third Exception : The Act of a Stranger . , . 65. Fourth Exception : The Act of God 66. Fifth Exception : Statutory Authority 67. Nuisances in a Highway 68. The Legalisation of Nuisances by Prescription 69. The Legalisation of Nuisances by Statute 70. Liability for Fire 71. The Incidence of Liability for Nuisances ... 72. Liability of a Landlord CHAPTER VIII. INJURIES TO SERVITUDES. 73. Kinds of Servitudes 74. Easements 75. Profits 76. Equitable Servitudes : Licenses 77. Equitable Servitudes : Restrictive Contracts 209 214 219 221 226 229 230 232 236 238 240 241 245 250 253 258 259 266 267 273 CHAPTER IX. INJURIES TO SERVITUDES (continued). 78. The Right of Support 276 79. Disturbance of the Right of Support 278 80. The Right to Light 285 81. The Right to Air 292 .82. Eights to Water 293 XIV CONTENTS. SECTION PAGE 83. Wrongful Abstraction of Water 293 84. Abstraction for Non-riparian Uses ... ... ... ... 297 85. Abstraction for Eiparian Uses ... ... ... ... ... 299 86. Abstraction of Underground Water ... ... ... ... 304 87. The Pollution of Water 305 88. Obstruction of a Stream ... ... ... ... ... ... 307 89. Eights of Way 309 90. Disturbance of the Eight of Access to a Highway ... ... 311 91 . Nuisance to a Highway ... ... ... ... ... ... 31 2 92. Absolute Liability for Danger to Highway ... ... ... 315 93. Liabihty for the Non-repair of Eoads 319 94. Wrongful Damage 323 95. Injuries to Eeversionary Interests ... ... ... ... 323 CHAPTEE X. CONVERSION" AND OTHEE INJURIES TO CHATTELS. 96. History of the Action of Trover ... 97 . Conversion defined ... 98. Conversion by Taking 99. Conversion by Detention ... 100. Conversion by Wrongful Delivery 101. Conversion by Wrongful Disposition 102. Conversion by Wrongful Destruction 103. Other Forms of Conversion 104. Acts not amounting to Conversion 105. Conversion by Estoppel 106. The Title of the Plaintiff 107. Conversion as between Co-owners 108. Conversion and the Limitation of Actions ... ... ... 359 109. The Measure of Damages for Conversion ... ... ... 362 110. Specific Eestitution of Chattels ... ... ... ... ... 367 111. Eeplevin ... ... ... ... ... ... ... ... 371 112. Effect of Judgment in an Action of Trover ... ... ... 373 113. Trespass to Chattels ... ... ... ... ... ... 374 114. Wrongful Damage to Chattels ... ... ... ... ... 376 115. Wrongful Loss of Chattels 376 328 337 340 341 344 345 346 346 347 350 352 358 CONTENTS. XV CHAPTEE XI. INJURIES TO THE PERSON. SECTION 116. Deatk 117. Assault 118. Bodily Harm 119. False Imprisonment PAOE , 378 . 382 . 384 . 386 CHAPTEE XII. LIABILITY FOR DANGEROTTS PROPERTY. 120. Liability of Occupiers for Negligence 121. Liability of Occupiers on a Warranty of Safety 122. Liability of Occupiers to Licensees 123. Liability of Occupiers to Trespassers 124. Liability of Occupiers to Children 125. Liability of the Owner of Premises 126. Liability for Dangerous Chattels 127. Dangerous Animals : Fioot oi Scienter ... 128. Absolute Eesponsibility for Animals 392 399 400 404 408 412 415 424 428 CHAPTEE Xin. INJURIES TO DOMESTIC RELATIONS 129. Parent and Child 130. Master and Servant : Seduction 131. Master and Servant : Other Injuries 132. Husband and Wife 438 439 444 44(> CHAPTER XIV. DEFAMATION. ] 33. Defamation defined. Libel and Slander. . 134. The Defamatory Nature of a Statement . . . 135. Defamation of a Corporation 136. Interpretation of Defamatory Statements 137. The Innuendo 138. Proof of Eeference to the Plaintiil 139. Publication 140. Justification 141. Privilege 449 450 453 454 457 458 460 464 466. XVI CONTENTS. SECTION 142. Absolute Privilege Qualified Privilege Statements in Performance of Duty Statements in the Protection of an Interest Fair Comment Privileged Reports Slander and Special Damage Slander actionable per se ... 143. 144. 145. 146. 147. 148. 149. CHAPTER XV. DECEIT AND INJURIOUS PALSEHOOD. 150. Deceit... 151. Injurious Falsehood 152. Deceptive Trade Names, Marks, and Descriptions CHAPTER XVI. INTIMIDATION. 153. Intimidation of a Person to his own Injury 164. Intimidation of a Person to another's Injury CHAPTER XVII. WRONOEUL PBOCESS OF LAW. 155. Liability of the Superior Courts of Justice 156. Liability of Inferior Courts of Justice 157. Malicious Prosecution and other Malicious Process 158. Erroneous and Irregular Proceedings 159. Maintenance... CHAPTER XVin. RESIDUARY FORMS OF INJURY. 160. Inducement of Breach of Contract 161. The Breach of Statutory Duties ... 162. The Breach of Common-Law Obligations 163. Injuries to Immaterial Property ... PAGE . 468 . 471 . 476 . 478 . 480 , 488 . 490 . 491 494 504 507 516 517 528 529 534 544 547 550 552 558 558 ( xvii ) INDEX OF CASES. Abkaham i\ Bullock, 100. Abrahams v. Deakin, 98. Abrath v. N. E. Railway Co., 60, 538, 640, 541. Ackroyd c. Smith, 260, 261. Acton V. Blundell, 304. Adam i-. British and Foreign Steam- Bhip Co., 382. r. Ward, 478. Adamson v. Jarvis, 85. Addis V. Gramophone Co., 124. Addison v. Overend, 87. Alabaster v. Harness, 547, 548, 549. Alcott v. Millar's Karri Forests, Ltd., 505, 506. Alexander v. Jenkins, 492. V. N. E. Railway Co., 465. V. Southey, 333, 334, 343. Allan V. Liverpool, 192. Allbutt V. General Council of Medical Education, 488. Allen I-. Flood, 19, 20, 516, 517, 520, 525, 526, 650. V. London & S. W. Railway Co., 98. V. Rivington, 204. . (,. Wright, 391. Allsop V. Allsop, 490. Alston V. Scales, 325. Alton V. Midland Railway Co., 445. Ambergate Railway Co. v. Midland Railway Co., 178. Ambler v. Gordon, 289. Amerika, The, 378. Anderson v. Gorrie, 528, 529, 530. V. Oppenheimer, 229. V. Pacific Insurance Co., 496. V. RadclifPe, 194. Andrews ». Aberlillery, 191. V. Mockford, 601. V, Nott Bower, 477. Anglo-Algerian Steamship Co. i>. The Houlder Line, 11. Angus f. Clifford, 497, 498. Ankersen v. Connelly, 290. Anscomb v. Shore, 181. Anthony v. Haneys, 174. S. Apollo, The, 393, 403. Applebee v. Percy, 428. Arkwright v. Newbold, 495, 496, 498. Armory v. Delamirie, 198, 204, 355, 362, 365. Armstrong v. Milburn, 154, 155. Arris v. Stukeley, 163. Arrowsmith «. Le Mesurier, 386. Ash V. Dawney, 187. Ashby V. White, 186. Asher v. Whitlook, 203, 204. Atkinson v. Newcastle Waterworks Co., 553, 554, 657. Attenborough v. London & St. Katha- rine's Docks Co., 352, 358, 365. Att.-Gen. v. Borough of Birmingham, 161. V. Cockermouth Local Board, 307. V. Cole, 221. V. Conduit Colliery Co., 279. V. Corporation of Manches- ter, 146. V. Corporation of Notting- ham, 14G, 210. V. Lewes Corporation, 157. V. Metropolitan Railway Co., 243. V. Roe, 313. V. Thames Conservators, 311. V. Tod-Heatley, 252. ■ V. Tomline, 225. Austin V. Dowling, 389, 545. V. Manchester, &c. Railway Co., 29. Ayre v. Craven, 492. BiOKHOtrsB V. Bonomi, 152, 153, 278. Bagshaw v. Goward, 196. Bahia and San Francisco Railway Co., In rr, 600. Bailiffs of Romney Marsh v. Trinity House, 129, 134. Baily v. Morland, 294, 301. Bainbridge f. Postmaster -General, 95. b XVlll INDEX OF CASES. Baird v. Williamson, 228, 229. Baker 4^ Bolton, 378, 379, 446. r. Carrick, 475, 477. V. Snell, 432, 433, 434, 435. Baldwin v. Caaella, 428. V. Cole, 334, 340. Ball, ex parte, 158, 159. V. Ra}', 210, 240. Ballard r. Tomlinson, 211, 305, 306. Bamfield v. Goole, Ltd., 420. Bamfordj). Turnley, 216, 219, 221. Bank of New South Wales v. Owaton, 97. Barber > . Houston, 155. V. Penley, 311, 312. Barham v. Dennis, 438. Barker i\ Furlong, 338, 340, 345, 346, 350, 366. V. Herbert, 254, 317. Barnes v. Lucille, 428. V. Nunnery Colliery, 99. — ' V. Ward, 313, 405. Barnett ». Earl of Guildford, 194. Barratt v. Kearus, 469. Barrett v. Associated Newspapers, Ltd., 506.- Barry v. Croskey, 601. Bartlett v. Wells, 68. Bartonshill Coal Co. v. McQuire, 109. V. Reid, 105, 109. Barwick v. English Joint Stock Bank, 61, 97, 99. Basebe v. Matthews, 643. Basely v. Olarkson, 17, 186. Bass V. Gregory, 292. V. Hendon U. D. C, 107. Batchelor i\ Fortesoue, 404. Eaten' s case, 191. Bates V. Batey & Co., 423, 424. Bateson v. Gosling, 84. Batt V. Metropolitan Water Board, 322. Battishillv. Reed, 138, 139. Battley v. Faulkner, 152. Baxter v. Taylor, 326, 327. Bayley v. Manchester Railway Co., 98. Beard v. London General Omnibus Co., 97. . V. Moira Co., 277. Beam, The, 393. Beattie v. Lord Bbury, 496. Beauchamp, In re, 72. Beaulieu v. Finglam, 230, 247, 250. Beaumont v. Kaye, 72. Beckett v. Midland Railway Co., 315. Beckwithr. Philby, 17, 391. Beddallti. Maitland, 172, 173. Bede Steamship Co. v. River Wear Commissioners, 393. Behrens ». Richards, 149. Bell V. Great Northern Railway Co., 385. • jj. Midland Railway Co., 124, 325. Belsize Co. v. Cox, 364. Benjamin v. Storr, 212, 238, 311, 312. Bennett v. Allcott, 441. Bernina, The, 44, 45, 47, 49, 134. Berringer v. Great Eastern Railway Co., 444, 445. Berry v. Adamson, 386. V. Humm, 378, 381. Berthon v. Cartwright, 447. Besozzi V. Harris, 425, 430. Betjemann v. Betjemann, 155. Betts V. Gibbins, 86. Bibby v. Carter, 264, 265, 281. Bickett V. Morris, 307. Biddle v. Bond, 361, 362, 357, 364. Bird V. Brown, 90. V. Holbrook. 406. V. Jones, 387. Birmingham Corporation v. Allen, 276. Bishop V. Balkis Con.solidatedCo., 503. V. Montagu (Viscountess), 335. Black V. Christuhuroh Finance Co., 15, 56, 116, 230, 231, 246, 250. Blackborough v. Graves, 87- Blacker v. Lake, 420, 423, 424. Blackmore v. Vestry of Mile End, 321. Blades v. Higgs, 173. Blake V. Barnard, 384. v. Lanyon, 445. V. Midland Railway Co., 9, 381. V. Woolf, 225, 229. Blakemore v. Bristol and Exeter Rail- way Co., 420. Blanchenay v. Burt, 547. Elaymire v. Haley, 444. Bliss V. Hall, 219, 240. Blofeld V. Payne, 510. Bloodworth v. Gray, 491. Blyth V. Birmingham Waterworks Co., 23, 28, 317. Boden v. Roscoe, 179, 181. Bodley v. Reynolds, 367. Bonnard v. Ferryman, 146. Booth V. Arnold, 492. Boots V. Grundy, 526. Borough of Bathurst v. Macpherson, 321. Bott V. Ackroyd, 532. Bottomley v. Brougham, 469. Bound V. Lawrence, 112. Bourne v. Fosbrooke, 356. Bowen r. Anderson, 265, 256. r. Hall, 134, 445, 520, 532, 650. Bower v. Peate, 116, 119, 280, 283. Bowlston V. Hardy, 227. INDEX OF CASES. XIX Bowyei- v. Cooke, 138, 139, 189. Box r. Jubb, '230, 231, 233. Boxsius V. Goblet Frferes, 461, 463, 475. Boydell v. Jones, 457. Bradford Corporation c. Ferrand, 304. V. Myers, 156. Bradford (Mayor of) c. Piokles, 8, 10, 19, 304. Bradlaugh c. Newdeg-ate, 547, 548. Bradley v. Copley, 352. t. Ramsay, 373. — • t>. Wallaces, 426. Bradshaw r. L. & Y. Hail way Co., 74, 75, 77. Brady v. Warren, 226, 227. Brass v. Maitland, 416. Brent f. Haddou, 251, 254, 284. Brewer v. Sparrow, 164. Bridges v. Hawkesworth, 355, 365. V. Nortb London Railway Co. , 39. Brierly i\ Kendall, 364. Briggs V. Oliver, 35. Brinsmead c. Harrison, 83, 373, 374. Bristol & West of England Bank V. Midland Railway Co., 351. British Cash and Parcel Conveyors, Ltd. V. Lamson Store Service Co., 548, 549. British Electric Railway v. Grentile, 381. British Mutual Banking Co. v. Chamwood Forest Railway Co., 99. British South Africa Company v. Companhia de Mo9amblque, 165. British Vacuum Cleaner Co. v. New Vacuum Cleaner Co., 508, 512. Brittain v. Kinnaird, 532. Broad v. Ham, 538. Broadbent v. Ledward, 87. V. Ramsbotham, 295. Brock V. Copeland, 406. Brockbank v. Whitehaven Railway Co., 446. Broder v. Saillard, 210, 211, 221, 228, 251, 284. Bromage v. Prosser, 19. Brook V. Rawl, 20. Brooks V. Hodgkinson, 546. Brown v. Boorman, 6. V. Chapman, 390, 546. V. Eastern and Midland Rail- way Co., 313. • V. Giles, 214. V. Hawkes, 540, 541, 542. V. Robins, 125, 280, 281. V. Smith, 492. 2irowne v. Powell, 181. Brownlie v. Campbell, 496. Bruen v. Roe, 337. Brunsden v. Humphrey, 136, 137. Brunswick (Duke of) v. Harmer, 52 Bryant v. Herbert, 4. V. Lefever, 292. Buccleuoh (Duke of) v. Wakefield, 277. Bucklaud v. Johnson, 164. Buckley !■. Gross, 355, 357, 369, 370. Bulcock !'. St. Anne's Master Builders' Federation, 526. Bullen i). Swan Electric Engraving Co., 35. Bulli Coal Mining Co. v. Osborne, 154, 165. Bullock t>. London General Omnibus Co., 81. Bulmer v. Buhner, 380. Bunting v. Hicks, 294. Burchell v. Hiokisson, 412. Burgess v. Burgess, 513. Burley v. Bethune, 530. Burling J). Read, 172. Burn V. Morris, 164. Burnard v. Haggis, 67. Burnett v. Lynch, 6. Buron V. Denman, 58, 90. Burr V. Smith, 469. I. Theatre Royal Drury Lane, 109. Burroughes v. Bayue, 343. Burrows v. March Gas Co., 133, 134. V. Rhodes, 85, 86. Burt V. Moor, 178. Bussy f. Amalgamated Society of Railway Servants, 65. Butcher v. Butcher, 194. Butler r. Fife Coal Co., 25, 110. V. Manchester Railway Co., 272. Butt V. Imperial Gas Co., 262. Butterfield v. Forrester, 36, 38, 44. Butterknowle Colliery Co. v. Bishop Auckland Co-operative Co., 277. Butterley Co. t'. New Hucknall Colliery Co., 277. Byrne p. Boadle, 34. V. Judd, 283. Byron (Lord) v. Johnston, 507. By well Castle, The, 39. Cable v. Bryant, 292. Cairnbahn, The, 48, 85. Calder v. Halkett, 633. Caledonian Railway Co. v. Mul- hoUand, 424. Caliph, The, 380. b 2 XX INDEX OF CASES. Calliope, The, 393. Cameron i>. Nystrom, 106. V. Young, 256, 414. Campbell Davys v. Lloyd, 178. Campbell v. Paddington, 62, 261, 314. V. Spottiswoode, 483, 484. Canadian Paoiflo Kailway Co. v. Parke, 244. Capel V. Powell, 72. Capital and Counties Bank r. Hent)', 450, 452, 454, 455, 456. Card V. Case, 428, 429. Carr i>. Clarke, 441, 444. V. Fraois Times & Co., 166. Carratt v. Morley, 390, 531. Carstairs v. Taylor, 229, 232. Casey v. Arnott, 505. Cash, Limited r. Joseph Cash, 513. Castrique v. Behrens, 543. Cator r. Lewisham, 62. Cattle V. Stockton Waterworks Co., 11, 212. Candle v. Seymour, 531. Cavalier r. Pope, 256, 396, 414, 418. Cave V. Mountain, 530, 532. Cellular Clothing Co. r. Maxton, 509, 512. Central, &c. Co. v. Smith, 62. Chamberlain v. Williamson, 75. Chambers v. Donaldson, 192. Chaplin v. Westminster Corporation, 311, 312. Chapman v. Fylde Waterworks Co., 322. Chapman, Morsons & Co. v. Auck- land Union, 140. Charing Cross Co. v. Hydraulic Co., 237, 239. Charles v. Taylor, 109. Chasemore v. Richards, 20, 281, 304, 305, 306. Chastey v. Ackland, 293. Chatterton v. Secretary of State for India, 470. Cheetham v. Hampson, 253. Cheshire v. Bailey, 100. Chilton V. Carrington, 368. Chinery v. Viall, 364. Christie v. Davey, 210, 215, 21G. Churchill v. Siggers, 535, 536. Citizens' Life Assurance Co. v. Brown, 18, 61. City of London Brewery Co. v. Tennant, 292. Claridge v. South Staffordshire Tramways Co., 362. Clark V. Chambers, 40, 81, 132, 134. V. London General Omnibus Co., 378, 379, .382. V. Molyneux, 472, 473, 474. Clark V. Newsam, 82. Clarke v. Arraj and Navy Co- operative Society, 417. V. Holmes, 53. . V. Yorke, 136, 144. Clay V. Roberts, 453. Clayards v. Dethick, 39, 54, 398. Clayton v. Le Roy, 341, 343. Clegg V. Dearden, 189. Clement v. Chjvis, 451. Clements v. Flight, 342. V. Tyrone County CouncU, 316. Clifton 4;. Viscount Bury, 191. Clinton V. Lyons & Co., 430. Clissold V. Cratchley, 536. Cobb V. Great W. Railway Co., 130, 131. V. Saxby, 311. Cobbett V. Grey, 384. Cochrane v. Rymill, 340, 345. Cockroft r. Smith, 169. Codrington v. Lloyd, 547. Coggs r. Bernard, 29, 235. Cohen v. Morgan, 637. Coldrick v. Partridge, Jones & Co., Ltd., 109. Cole V. Turner, 383. Oolebeck v. Girdlers' Co., 279. Collen V. Wright, 499. Collins V. Renison, 170. Colls V. Home and Colonial Stores, 148, 149, 150, 216, 286, 287, 288, 289, 291, 292 Columbus Co. v. Clowes, 122. Compania, &c. v. Houlder, 81. ConsoUdated Co. v. Curtis, 16, 338, 340, 345, 346, 350. Conway v. Wade, 521, 524, 526, 527. Cook V. Beal, 169. V. North Metropolitan Tram- ways Co., 112. V. Ward, 451. Cooke V. Forbes, 218. . V. Holgate, 371. V. Midland Gt. W. Railway of Ireland, 401, 408, 409, 411, 424. ■ ■ V. Wareing, 428, 430. V. Wildes, 477. Cooper V. Chitty, 336. V. Crabtree, 192, 325. Cope V. Sharpe, 17. Corbett);. HiU, 189, 190. Corby V. Hill, 403, 404. Cornish v. Stubbs, 273. Cory V. Prance & Co., 127. Cotton V. Wood, 30, 33. Couch «. Steel, 553, 557. Coughlin V. Gillison, 54, 417, 420. INDEX OF CASES. XXI Coupe Co. V. Maddiok, 103. Couplaud I . Hardingham, 251. Coverdale v. Charlton, 191. Cowem V. Meld, 68. Cowley f. Newmarket Local Board, 320, 553. Cox V. Burbidge, 126, 223, 224, 425, 426, 429. V. Cooper, 458. 1'. Cox, 448. . !■. Feeney, 483. ('. Lee, 451. Coyle V. Gt. N. Ry., 41. V. WatsoD, Ld., 385. Crafter v. Metropolitan Railway Co., 33. Crawsliay v. Thompson, 509. Cribb V. Kynooh, 106. Crogate v. Morris, 247. Cropp V. Tilney, 451. Crossfield v. Such, 371. Crossley *'. Lightowler, 211, 306. Crowhurst r. Burial Board of Amersham, 211. Crumbie v. WaUsend Local Board, 139, 153. Crump V. Lambert, 211. Cuenod ». Leslie, 72, 73. GuUen ». Knowles, 87. Dakhyl v. Labouchere, 484, 485. Dale V. Wood, 169. Daltou V. Angus, 116, 252, 276, 277, 278, 280, 282, 319. V. S. E. Railway Co., 382. Daly V. Dublin, &c., Railway Co., 74. Daniel 1). Ferguson, 150, 151. V. James, 19. Darley Main Colliery Co. *'. Mitchell, 138, 139, 142, 144, 153, 278. Dauncey i\ Holloway, 492. DaTey v. L. & S. W. Railway Co., 40. David V. Britannic Merthyr Coal Co., 110, 553, 557. Davidsson v. HOI, 382. Davies v. Mann, 41, 42, 43, 44, 49, 50. V. Solomon, 490. V. Treharne, 277. V. Williams, 440. Davis V. Bromley Corporation, 555. V. Duncan, 483. v. Garrett, 135. V. Shepstone, 480. Davison v. Gent, 204. Dawkins v. Lord Rokeby, 469. Dawkins v. Lord Paulet, 471. Dawson v. Bingley U. D. C, 600. V. Gt. N. Railway Co., 159, 160, 161. Day «'. Brownrigg, 514. Dean v. Hogg, 170. V. Peel, 443. Deane v. Clayton, 406. De Francesco v. Barnuin, 446. Degg V. Midland Railway Co., 107. De la Bere v. Pearson, Ltd., 134, 498. Delegal v. Highley, 539. Dent V. Auction Mart Co., 289. Derry v. Handley, 491. V. Peek, lU, 14, 494, 496, 497, 498, 499, 500. Devonshire (Duke of) c. Eglin, 269. Devonshire, The, 48. Dewar v. Tasker, 95. Dickinson v. N. E. Railway Co., 380. Dickson v. Reuter's Telegram Co., 4, 10, 499. Digby V. Financial News, 480, 481. Dimes v. Petley, 178. Dixon V. Bell, 69, 424. p. Smith, 491. Dobson V. Horsley, 397, 399. Dockrell v. Dougall, 507. Dod V. Monger, 197. Doe d. Carter v. Barnard, 204. Doe d. Crisp r. Barber, 204. Doe y. Harlow, 208. Dominion Natural Gas Co., The v. Collins, 415, 422, 423. Donaghy v. Brennan, 70. Donald v. Suckling, 352, 353, 354, 364, 367. Donovan v. Laing Construction Syndicate, 93. Doolan v. Midland Railway, 62. Doswellf. Impey, 530, 531. Dovaston r. Payne, 187. Doyley v. Roberts, 492. Drake, ex parte, 373. Dreyfus v. Peruvian Guano Co., 140, 152. Drumlanrig, The, 48. Drury u. N. E. Railway Co., 33. Dublin Railway Co. v. Slattery, 31, 40, 41. Dublin Tramways Co. v. Fitzgerald, 320, 322. Dubois V. Keats, 537. Du Bost V. Beresford, 449. Duck V. Mayeu, 83, 84. Duckworth v. Johnson, 381. Dudden v. Glutton Union, 294, 305. Dulieu V. White, 9, 129, 385. Dunlop V. Maoedo, 206. Dunn V. Large, 207. xxu INDEX OF CASES. Eagek v. Grimwood, 440. Eagle r. Charing Cross Railway Co., 315. Eaglesfield v. Marquis of Londonderry, 496. Earli). Lubbock, 4, II, 418, 419, 420, 421, 422. Earle v. Kingscote, 187, 273. Eason v. Newman, 333, 334. Eastern Construction Co. ». National Trust Co., 89, 357, 362, 365. Eastern and S. A. Telegraph Co. r. Cape Town Tramways Companies, 211, 218, 225, 243. Eastwood V. Holmes, 460. Edelstein v. Bdelstein, 510. Edge V. Strafford, 258. Edgington r. Eitzmaurice, 496, 501, 602. Edmondson v. Birch & Co., 463, 475. Edmundson v. Machell, 441. Edwards r. London Sc N. W. Railway Co., 98. • V. Mallan, 6. Ed wick i-. Hawke.s, 172. ElectromobUe Co. v. British Electro- mobile Co., 512. EUen V. Gt. N. Railway Co., 144. Elliotson V. Feetham, 52, 219, 240. Elliott V. HaU, 424. EDis )'. Loftus Iron Co., 15, 224, 426. Elsee V. Smith, 17, 389. Emblen v. Myers, 124. Embrey v. Owen, 296, 302, 303. Emmens v. Pottle, 463. Eng'lish V. Metropolitan Water Board, 305. Englishman and The Australia, The, 85. Entick V. Carrington, 12. Evans v. Harlow, 505. V. Liverpool Corporation, 92. f. Walton, 445, 446. Ewing V. Orr Bwing, 165. Exchange Telegraph ;■. Gregory, 650. Faioee V Gray, 368. Fanny M. CarviU, The, 60. Farrant v. Barnes, 420. Farrar v. Beswick, 359. Farrer v. Nelson, 227. Fawcett v. Smethurst, 68. Fay V. Prentice, 191. Feather v. The Queen, 56. Fennings v. Lord Granville, 358. Field f. Adames, 180. Filburn v. People's Palace Co., 15, 425, 426, 429, 432. Fmiter«. Phippard, 246, 248, 260. Fiudon v. Parker, 648. Fine Art Society v. Union Bank of London, 348. Finlay v. Chirney, 74, 75. Fisher v. Nation Newspaper, 458. V. Prince, 371. %-. Prowse, 313. Fitter V. Veal, 135, 136, 143, 144. Fitzgerald t). Firbank, 260, 266, 309. Fitzjohn V. Mackinder, 537. Fleming v. Newton. 490. Fletcher r. Rylands, 225, 432. Flights. Leman, 549. Flower v. Adam. 36. Ford V. L. &S. W. Railway, 28, 29. Foreman v. Mayor of Canterbury, 320. Fores v. Wilson, 441. Forward r. Pittard, 234. Foster v. Stewart, 163. Fouldes V. Willoughby. 340, 341. Foulkes V. Metropolitan Railway Co.. 4. Fowler v. Hollins, 17, 349. Fox V. Broderick, 462. France v. Gaudet, 367. Francis v. Cookrell, 399, 416. Frankenburg » Great Horseless Carriage Co., 81. Franklin r. S. E. Railway Co., 381. Fray v. Blackburn, 528. Freeman v. Rosher, 89. French v. Hills Plymouth Co., 404. Fritz V. Hobson, 140, 152, 216, 311, 312, 315. Frost V. Aylesbury Dairy Co., 416. Fullwood'i). Fullwood, 150. Gallagher v. Humphrey, 404. Gandy v. Jubber, 255, 256. Garnett v. Ferrand, 633. Gaakin v. Balls, 150. Gates «;. Bill, 93. Gaimt «'. Fynney, 215. Gautret v. Egerton, 399, 400, 401, 416. Gayford v. Nichols, 282. Geddis v. Bann, 242. Gee V. Metropolitan Railway Co., 35, 38. Gelen v. Hall, 530. George and Richard, The, 380. George v. Skivington, 422, 423, 424, 500. Gibbs V. Cruikshank, 137, 372. V. Guild, 154. Giblan v. National Amalgamated Labourers' Union, 519, 520, 624. INDEX OF CASES. XXIU Giblin v. MoMullen, 29, 100. Gilbert v. Trinity House, 57. 1-. Sohwenok, 444. Gilding v. Eyre, 537, 543, 644. Giles v. Walker, 226. Gill I'. Edouin, 225, 229, 231. Gladwell v. Steggall, 5. Glasspoole f. Young, 17. Gledstane v. Hewitt, 331. Glegg (.'. Bromley, 159, 161. Glenwood Lumber Co. v. Phillips, 258, 35.5, 362. Glover v. Loudon & S. W. Railway Co., 132. GofB V. Gt. W. RaUway Co., 98. Goffin V. Donnelly, 469. GoldsoU V. Goldman, 550. Goodman v. Boycott, 351. Goodtitle ;•. Tombs, 204, 207. GoodwTu i'. Cheveley, 179. Gordon v. Harper, 352. Gorris v. Scott, 656. Gower r. Couldridge, 81. Gracey »•. Belfast Tramway Co., 103. Grabam v. Peat, 192, 204. V. Publio Works, 65. Grainger )' Hill, 386. Grand Hotel Co. of Caledonia Springs r. WUson, 512. Grand Junction Canal Co. v. Sbugar, 305. Grand Trunk Railway of Canada v. Jennings, 382. Grand Trunk Railway of Canada v. Bamett, 405. Grange v. SUcock, 433. Granger f. George, 344, 359, 360. Grants. Thompson, 548. Gray ?■. Pullen, 117, 316. Great Western Railway Co. v. Sutton, 558. Green v. Button, 505. V. Chelsea W. Co., 236. V. Duckett, 181. V. Goddard, 169, 170, 383. V. Greenbank, 6, 68. Greening ». Wilkinson, 366. Greenland v. Chaplin, 127. Greenlands, Ld. v. Wihnshurst, 81, 477. Greenway v. Eisher, 349. Greenwell v. Howell, 157. f. Low Beechbum Coal Co., 142, 254, 283. Gregory v. Duke of Brunswick, 626. V. Hurrill, 154. V. Piper, 186, 188. Greta Holme, The, 74. Greyvensteyn v. Hattingh, 227. GrifBth v. E. Clay, Ltd., 125. Grifaths V. Earl of Dudley, 381. V. Teetgen, 441. GrUl -D. General Iron Screw Collier Co., 22, 29. Grinham v. Willey, 390. Grinnell v. Wells, 439. Grosveuor Hotel Co. p. Hamilton, 27S. Groves v. Wimbome, 110, 11), 553, 556, 557. Guardians of Holborn Union r. Vestry of St. Leonords, 555. Guest V. Warren, 137. Gulliver v. Cosens, 181. Gumbleton v. Grafton, 332. Guuter v. James, 220. Guy V. Churchill, 160, 161, 548. Gwinnell v. Earner, 39, 253, 256. Hadweli v. Righton, 427. Haggard v. Pelioier Fr^res, 528, 530. Hailes v. Marks, 391, 539. Haleomb v. Rawlyns, 207. Halestrap v. Gregory, 133. Hall V. Hollander, 438, 442, 44 I . V. Lees, 94. ■('. Lichfield Brewery Co., 292. V. Duke of Norfolk, 142, 252, 283. Halley, The, 166. Halliday r. Holgate, 352, 353, 354, 364. Halsey V. Brotherhood, 505. Hambly v. Trott, 76, 163. Hamilton v. Long, 440, 442. Hamlyn 1". Houston, 18, 90. Hammack v. White, 33. Hammersmith RaOway Co. «. Brand, 243. Hammond t>. Vestry of St. Paucras, 557. Hankinson v. Bilby, 454. Hanson v. Waller, 98. Hardaker v. Idle District Council, 118, 237, 238, 245, 317, 319. Hardcastle v. S. Yorkshire Railway Co., 313. Hargroves v. Hartopp, 413. Harman v. Tappenden, 64. Harrington (Earl) v. Derby Corpora- tion, 146, 156, 211. Harris v. Briscoe, 548. V. Dignum, 390. V. James, 254, 255. ti. Mobbs, 313. V. Perry, 403, 417. V. Be Pinna, 285, 293. Harrison v. Blackburn, 192. V. Bush, 479. XXIV INDEX OF Ma^i ■< V t, i ... /., /.v, .,» ; ^v .- iV tK><^. Harrison v. L. & N. W. Railway Co., 382. V. Duke of Rutland, 187. ■». Southwark Water Co., 216, 217. ». Thornborough, 460. Harroldp. Watney, 40, 66, 313. Hartley v. Rochdale Corporation, 322. Harvey v. Brydges, 172. V. Pocook, 197. Hastings {Corporation of) v. Ivall, 193. Hatch ard v. Mege, 77. Hayne v. CuUiford, 6. Haywood v. Brunswick Building So- ciety, 275. .Head r. Briscoe, 73. Healey v. Healey, 3.52. Heath v. Mayor of Brighton, 216. Heaven .;. Pender, 22, 26, 393, 419, 424. Hebditch v. Mcllwaine, 462, 474. Hedges v. Tagg, 440, 444. Hedley e. Pinkiiey & Sons, 106. Hellwig r. Mitchell, 4 92. Henderson v. Squire, 208. V. Wmianis, 351. Hendriks v. Montague, 508. Henriques v. Dutch West India Co., 64. HenwoodtJ. Harrison, 462, 480, 483. Herbert v. S. Pox & Co., 99. Herd r. Weardale Co., 387, 388. Hero, The, 50. Hertfordshire County Council v. Great Eastern Railway, 323. Hervey v. Smith, 269. Heslop V. Chapman. 538. Hetherington ;. N. E. Railway Co., 382. Heugh V. London & N. W. Railway Co., 345. Hewlins v. Shippam, 261. Hext !■. Gill, 279. Hey V. Moorhouse, 188, 194. Hibbins v. Lee, 483. Hickman v. Maisey, 187. Hioks ». Paulkner, 39 i, 537, 538. V. Newport Railway Co., 382. Highland Loch, The, 39. Hilbery «. Hatton, 89. HiU V. Tottenham, 320. V Tupper, 261, 265, 270. Hilly er v. Governors of St. Bartholo- mew's Hospital, 92. Hinchclifle v. Sharpe, 360. Hinton V. Dibbra, 29. Hiort V. Bott, 135, 339. V. L. & N. W. Ry., 122. CASES. Hirst «. West Riding Union Banking Co., 603. Hitchin V. CampbeU, 165. Ploare v. Metropolitan Board of Works, 261. Hobbs V. London & S. W. Railway Co., 133. Hodgson V. Mayor of York, 226. HodsoU i). Stallebras, 136, 144. V. Taylor, 124. Hodson V. Pare, 462, 469. Hogg*. Ward, 391. Holden v. Thompson, 648. Hole V. Barlow, 219. V. Chard Union, 138. V. Sittingbourne Railway Co., 316, 319. Holfordi'. Bailey, 261. Holker?;. Porritt, 309. HoUand». Worley, 140. Holleran v. Bagnell, 380. Holliday v. National Telephone Co., 117, 245, 316, 318. HoUins V. Fowler, 338, 345, 346, 349, 360. Holmes v. Bagge, 170. «. Mather, 16, 185, 186. V. N. E. Railway Co., 393, 403. V. Wilson, 189. Hope V. Eversd, 390. Hopkins v. Crowe, 390. Hopper V. Reeve, 185, 383. Hopwood V. Thorn, 492. Horsfall r. Thomas, 494, 495, 502. Horton t\ Colwyn Bay Council, 125. Hosking v. Phillips, 198. Houlden v. Smith, 631, 633. Hounsell ». Smyth, 402. Howard v. Crowther, 441. Howell V. Young-, 152. Hubbuck & Sons r. Wilkinson, 605. Huokle V. Money, 124. Hudson f. Nicholson, 139, 189. v. Roberts, 426. Huffer V. Allen, 644. Huggett V. Miers, 413. Hughes V. Maofie, 40. V. Percival, 116, 118, 119, 279, 280, 282. V. Twisden, 152. HuU ». Pickersgill, 90. Hulton & Co. V. Jones, 455, 459. Humphries v. Brogden, 276, 278, 279. V. Coufins, 223. Hunt 1). Gt. N. Railway Co., 112, 479. V. Peake. 280. V. Star Newspaper Co., 482, 484, 486. Hunter v. Gibbons, 154. INDEX OF CASES. XXV Hurdman v. N. E. Railway Co., 211, 22S, 229. Hurst V. Kcture Theatres, Ltd., 272. ■ ('. Taylor, 320. Hutchinson r. York, &c. Railway Co., 105, 109. Huth i: Huth, 462. Huttley V. Simmons, 526. Hymau r. Nye, 116. I'. Ogden, 368. IiOTT f. WiUies, 406. Imperial Gas Light Co. v. Broadbeut, 147, 151. Imperial Gas Light Co. v. London Gas Lig-ht Co., 154. Indermaur v. Dames, 392, 393, 394, 396, 397, 399, 402, 413, 416, 424. Irwin v. Dearman, 440, 441. Isack i'. Clarke, 334. Ivay V. Hedges, 413. Ivesou p. Moore, 314, 315. Izard V. Izard, 447. Jackson v. Hopperton, 477. f . Normanby Brick Co., 151. i. Smithson, 428, 430. V. Watson & Sons, 125, 377, 447. Jacobs V. Schmaltz, 458. ■ V. Seward, 194, 359. Jacomb v. Knight, 149. Jarmain v. Hooper, 93. Jeffries v. Gt. W. Railway Co., 364. r. Williams, 2b4, ^^65, 281. Jegon V. Vivian, 199, 201. Jenkins v. G. W. R., 409, 410. Jenkinson v. Neild, 526. Jenks V. Viscount Clifdeu, 78. Jennings i:. Rundall, 67. Jenours v. Delmege, 473. Jesser v. Gifiord, 326. Jewson V. Gatti, 40. Joel V. iilorison, 102. Johnson v. Emerson, 337, 536, 543. p. Lmd.say, 106. p. rye, 68. V. Stear, 354, 364. Johnston v. Orr Ewing, .310. Johnstone!'. Sutton, 543. Jolly I). Kine, 288, ;i91. Jones V. Boyce, 55. V. Brown, 443, 444. • ■ V. Chappell, 325. o. Corporation of Liverpool, 95. V. Bowie, 330, 335. Jones f. Festiniog Railway Co., 220, 242, 248. V. Financial Times, 490. ('. Foley, 173. t>. Gooday, 198. V. Gurdon, 531. V. Jones, 493. v. Lee, 426. V. Moore, 370. p. Scullard, 94, 95. V. Williams, 175, 177. Jones & Sons v. Tankerville (Earl of), 272, 273. Jorden v. Money, 496. Jordeson v. Sutton, &c. Gas Co., 148, 150, 281, 306. Jordin v. Crump, 407. Jose V. Metallic Roofing Co., 522. Joseph Travers & Sons v. Cooper, 35." Joynt !;. Cycle Trade Publishing Co., 483, 484. Keabnet v. Lloyd, 523. V. London, Brighton, &c. Railway Co., 35. Keates v. Cadogan, 412. Keen «. Henry, 93. Keighley, Maxsted & Co. v. Duraut, 89. Kelly V. Metropolitan Railway Co., 4. V. Tinling, 483. Keusit V. Great Eastern Railway Co., 298, 308. Kent p. Worthing Local Board, 321. Kent Coal Exploration Co. v. Martin, 81. Kenyon v. Hart, 191. Keppel )'. Bailey, 231. Kerrison v. Smith, 269, 271. Kettlewell p. Watson, 22. Keyse p. Keyse, 124. Khedive, The, 50. Kidgill V. Moor, 326. Kimber v. Press Association, 488. Kinaston v. Moore, 335. Kine v. Jolly, 148, 149, 150. p. SeweU, 477. King V. Hoare, 83. V. Victoria Insurance Co., 161. Knight V. Gibbs, 470. Lamb v. Walker, 144. Lambert v. Great Eastern Railway Co., 96. ■ ■ V. Lowestoft Corporation, 317. XXVI INDEX OF CASES. Lambton v. Mellish, 220. Tjamond r. Richard, 5S8. Lancashire Waggon Co. «. Fitzhugh, 346, SflS. Lane v. Capsey, 176. V. Cox, 412, 414. Langridge v. Levy, 5, 419. Larkin v. Long, 527. Lamer v. Lamer, 71. Latham r. Johnson, 411. Laugher ». Pointer, 251. Laughton r. Bishop of Sodor and Man, 473. Law V. Llewellyn, 469. Lawless v. Anglo Egyptian Cotton Co., 474, 477, 479. Lax V. Corporation of Darlington, 395. Lazenhy /■. White, 513. Le Fanu ;•. Malcolmson, 458. Le Lievre v. Gould, 497. Lea V. Charrington, 390. Leame f. Bray, 183, 184, 375. Lee V. Riley, 426. Leech v. Schweder, 261, 275. Leeds (Duke of) c. Earl of Amherst, 150. Lefroy v. Burnside, 480. Leggott V. Gt. Northern Railway Co., 74, 382. Lehain v. Philpott, 181. Lemaitre v. Davis, 277, 280. Lemmon v. Webb, ITS, 177, 184, 190, 213, 214. Lennard's Co. v. Asiatic Co., 107. Leslie, R., Ld. v. SheiU, 68, 69. Levene v. Brougham. 68. Lever v. Goodwin, 510. Leward v. Basely, 169. Lewis r. Read, 89. Liebig's Extract of Meat Co. i'. Han- bury, 513. Liford's case, 207. Liggins i'. Inge, 273. Lightly V. Clouston, 163. LUley V. Doubleday, 135, 347. Limpus 'V. London General Omnibus Co., 18, 98. Linford r. Fitzroy, 530, 532. Lingke v. Christchureh, 311. Linotype Co. v. British Empire Type- setting Machine Co., 451, 505. Lister V. Ferryman, 391, 539, 540. Litchfield v. Ready, 194, 206. Liver Alkali Co. v. Johnson, 235. Liverpool Adelphi Loan Association v. Fairhurst, 73. Li%'iugstone t. Rawyards Coal Co., 201. Llandudno Urban Council v. Woods, 149. Lloyd V. Grace & Co., 99, 100. Lock V. Ashton, 389, 544. Lodge Holes Colliery v. Wednesbury Corporation, 198. L. C. C. V. Allen, 275. London, Brighton, &c. Railway Co. V. Truman, 243. London, H.M.S., 133. London & S. W. Railway Co. v. Gomm, 275. London, Tilbury, &c. Railway, 124. Longmeid v. Holliday, 419, 424. Lonsdale, Earl of v. Nelson, 175, 177. Lord V. Price, 352. Love V. Bell, 277. Low ». Bouverie, 497. Lowe «'. Adams, 269, 272. Lowery*. Walker, 408. Lucy r. Bawden, 396, 397, 399, 414. Lumley v. Gye, 441, 550. Luptonr. White, 369, 370. Lyde r. Barnard, 503. Lygo r. Newbold, 417. Lyles V. Southend-on-Sea Corporation, 156. Lynch v. Knight, 9, 127, 134, 385, 448, 490. V. Nurdin, 40, 66, 424. Lyon ». Fishmongers' Co., 294, 311. Lyons v. Gulliver, 312. V. Wilkins, 518. Lythgoe f. Vernon, 164. MoCaetney v. Londonderry Railway Co., 297, 299, 300, 303, 309. McClelland v. Manchester, 320. McCombie r. Davis, 348. Macdougall r. Knight, 137, 488. MoDowall i: Gt. W. Railway Co., 33. McEntire v. Potter, 349. McGlone i\ Smith, 307. Machado ». Fontes, 166. Macintosh v. Dun, 477. McKean v. Mclvor, 345. Mackenzie v. Hardinge, 441. McKone v. Wood, 436. M'Mahon v. Field, 133. McManus v. Cooke, 269, 274. MoPherson v. Daniels, 464, 466. MoQuire r. Western Morning News, 473, 483, 485, 486, 487, 488. Maoleay v. Tait, 502. Magdalena Steam Navigation Co. f. Martin, 60. Maguire p. Corporation of Liverpool, 320. INDEX OF CASES. XXVll Malachy v. Soper, 504, 505-. Malone r. Laskey, 212, 414. Manchester Brewery Co. v. North Cheshire and Manchester Brewery Co., 508. Mauder r. Falcke, 269, 275. Manders c. Williams, 353. Mangan f. Attertou, 40. Mangenat). Wright, 471, 482. Manvell i. Thomson, 440, 441. Manzoni v. Douglas, 33. Margaret, The, 50. Markey v. Tolworth, 381. Mamey t'. Scott, 416. Marpesia, The, 15. Marsh v. Keating-, 158, 159. Martini'. G. E. Ry., 242. . i'. Goble, 290. V. Porter, 78, 200. c. Price, 140, 162. Martinez v. Gerher, 444. Marzetti v. Williams, 6. Mason v. Hill, 296. V. Keeling, 214, 224, 426. Massam i: Thorley's Cattle Food Co., 5.08, 509. Matthews v. Biddulph, 391. Maunder f. Venn, 442. Mawe V. Pigott, 452. Maxey Drainage Bd. i. G. N. R., 2-27, 308. Mav c. Burdett, 425, 428, 429, 430, 431, 432, 435. V. Lane, 169, 160. Mayhew v. Herrick, 359. Mayor of Bradford v. Pickles, 8, 10, 20, 304. Mayor of Manchester c. Williams, 454. Mayor of Tunbridge Wells v. Baird, 190. Hears v. London and S. W. Railway Co., 353, 376. Mediana, The, 121. Mee V. Cruikshank, 388. Mellor V. Watkins, 273. Mennie v. Blake, 372. Menzies v. Breadalbane, 308. Merest v. Harvey, 123, 124. Merivale «. Carson, 483, 486. Merryweather v. Nixan, 81. 84, 85, 86. Mersey Docks Trustees v. Gibbs, 57, 63, 96. Metropolitan Association v. Petch, 326. Metropolitan Asylums District Board V. Hill, 210, 243, 244. Metropolitan Bank r. Pooley, 544. Metropolitan Board of Works r. McCarthy, 311, 315. Metropolitan Railway Co. r. Jackson, 21. Metropolitan Saloon Omnibus Co. v. Hawkins, 454. Meux V. Gt. E. Railway Co., 5, 445. Midwood V. Mayor of Mancheste 211, 237, 238, 239. Mighell V. Sultan of Johore, 59. Migotti V. ColviU, 388. Milan, The, 48. Miles V. Hutchings, 19. Mill V. Hawker, 62, 64. Miller r. David, 463. V. DeU, 348, 361. V. Hancock, 413. V. Seare, 529. Millington r. Fox, 508, 509. Miner v. Gilmour, 299, 301, 302. Mires v. Solebay, 334. Mitchell «;. Crassweller, 101. t'.Darley Main Colliery Co. ,279. «'. Foster, 531. V. Jenkins, 19, 641. 642. V. Tarbutt, 79. Mitchil V. Alestree, 437. Mitten «'. Faudrey, 214. Moffatt V. Bateman, 417. Mogul Steamship Co. c. McGregor, Gow & Co., 8, 10, 19, 517, 621. Molloy V. Mutual Co., 156. Monson i\ Tussaud's, Ltd., 449, 466. Monte Rosa, The, 50. Montgomery r. Thomson, 508, 511. Moody V. Steggles, 261. Moon V. Raphael, 370, 371. Moorcock, The, 393. Moore r. Lambeth Waterworks Co., 322. V. Meagher, 490. Moreland v. Richardson, 268, 269. Moreton v. Harderu, 186. Morgan v. Lingan, 452. V. Lond. Gen. Omnibus Co. ,112. V. Marquis, 359. t!. PoweU, 220, 366. V. Valo of Neath Railway Co., 108, 109. Morley v. Gaisford, 185. Morris r. Robinson, 80, 81, 165, 373. ». Salberg, 93. Morrison v. Ritchie, 455. Mostyn IK Atherton, 294. Motti). Shoolbred, 325, 326, 327. Moxham, The, 166, 167. MuUiner i\ Florence, 354, 364. Mumford r. Oxfordshire Railway Co., 325. Munday v. S. M. Electric Co., 81. Municipal Council of Sydney r. Bourke, 321. XXVlll INDEX OF CASES. Municipality of Piotou ». Ueldert, 320, 321. Munster v. Lamb, 469, 470. Murley r. Grove, 405, 433. Murray v. Currie, 94. <■. East India Co., 153. ■ V. Hall, 194, 204. Mvisgrave v. Pnlido, 57. Musurus Bey r. Gadban, 60, 153. Nagle f. Shea, 204. Nash V. Calthorpe, 502, National Bank v. Graham, 61. National Mercantile Bank v. Rymill, 350. National Phonograph Co. r. Edison- Bell Consolidated Phonograph Co., 550. National Telephone Co. v. Baker, 211, 243. Neate v. Harding, 162. Nelson v. Liverpool Brewery Co., 255. Nevill V. Pine Arts Insurance Co., 454, 456, 472, 473. Newby v. Van Oppen, 64. New River Co. r. Johnson, 304. Newton V. Harland, 172, 173, 188, 194. Nichols V. Marsland, 230, 232, 233, 234, 235, 248, 432. NicoUs V. Bastard, 366. Nield 'V. London & N. W. Railway Co., 226, 227, 308. Nims V. Mount Hermon. Boys' School, 62. Norman v. Bell, 340. r. G. "W. R., 395, 396, 397. V. Villars, 72. N. E. Railway Co. v. Wanless, 39. North V. Wood, 436. Northam p. Hurley, 122. Nugent V. Smith, 234, 236. Nuttall u. Braoewell, 261, 265, 295, 309. Nyberg v. Handelaar, 353, 357, 369. Oaket v. Dalton, 77. Ocean Accident Corporation r. Ilford Gas Co., 194. Odell V. Cleveland Ho., Ltd., 251. Oelkers v. EUis, 154. Ogden V. Lancashire, 443. Ogle f. Barnes, 185. O'Gorman v. O'Gorman, 227. Oliver V. North-Eastern Railway Co., 322. Oram v. Hutt, 548, 549. Ormerod ». Todmorden Mill Co., 298, 301, 306, 309. Orr Ewing v. Colquhoun, 307, 308. Osbom f. Gillett, 158, 378, 444. V. Veitch, 384. Oxlejv. Watts, 196, 197. Padexjey v. Holliday, Ltd., 319. Pain V. Rochester, 539. Painter v. Liverpool Gas Light Co., 390, 546. Palmer v. Wick and Pulteney-town Steam Shipping Co., 84, 85. Panhard et Levassor v. Panhard Levassor Motor Co., 508. Panton v. Williams, 539, 540. Parker);. L. C. C, 156. Parkes v. Prescott, 461. Parkinson v. Garstang Co., 406. Parlement Beige, The, 59. Parmiter v. Coupland, 450, 484. Parry v. Smith, 414, 422. Partridge v. Scott, 277. Pasley v. Freeman, 494. Pater v. Baker, 505. Patrick v. Colerick, 174. Paul V. Robson, 288. Payne v. Rogers, 5, 265, 556. Payton & Co. v. Snelling & Co., Ltd., 509. Pease v. Chaytor, 533. Peek V. Gurney, 495, 501. Penney v. Slade, 532. Penny v. Wimbledon Urban Council, 66, 117, 245, 312, 316, 319, 320. Penruddock's case, 175, 191, 251, 252. Perkins v. Smith, 334. Perry v. Clissold, 204. Peruvian Guano Co. i. Dreyfus Bros., 201, 368. Peters v. Jones, 439, 442. Petrel, The, 109. Petrie v. Rostrevor Owners, 407. Peyton r. Mayor of London, 282. Phillips V. Barnett, 71. V. Clagett, 87. V. Eyre, 166, 167. r. Homfray, 74, 75, 76, 163, 199. V. Naylor, 539. Philp V. Squire, 449. Philpott V. Kelley, 359. Phipps f . New Claridge Hotel Co., 3.3. Pickard v. Smith, 317. Pickerings. Rudd, 188, 191. V. TruBte, 371. Pillott V. Wilkinson, 343. INDEX OF CASES. XXIX Pinet & Cie. v. Maison Louis Pinet, 508. Pippin V. Sheppard, 5. Pitt V. Donovan, 505. Pittard v. Oliver, 472, 475. Plantza v. Glasgow Corporation, 40. Play fail- c. Musgrove, 187. Plumb c. Cobden, &o. Co., 99. Polkinhorn i'. Wright, 170. Pollen V. Brewer, 172. PoUey V. Fordhani, 533. Polsue & Alfieri, Ltd. f. Rushmer, 210, 216. Pontifex v. Midland Railway Co., 5. Ponting V. Noakes, 405. PoppleweU V. Hodkineon, 281. Poulton t. London & S. W. Railway Co., 62. Powell V. Birmingham Vinegar Brew- ery Co., 508, 512. V. FaU, 220, 243, 248. Pretty v. Bickmore, 251, 253, 255, 256, 313. Price's Patent Candle Co. v. London County Council, 244. Prickett f. Grratrex, 532. Priest V. Last, 416. Priestly v. Fowler, 105. Proctor V. Bayley, 146. Prosser v. Edmonds, 159. V. Lancashire & Yorkshire Acci- dent Insurance Co., 144. PuUan V. Roughfort Bleaching Co., 265. Pulling V. at. E. RaUway Co., 77. PuUman v. Hill, 460, 461, 463, 475. Purcell V. Sowler, 479, 483, 489. Pursell ». Horn, 383. Pusey V. Pnsey, 368. Pym !'. Gt. N. Railway Co., 382. QuAEMAN V. Burnett, 92, 94, 95, 317. Quartz Hill Gold Mining Co. t. Beall, 479. Quartz HUl Gold Mining Co. v. Eyre, 634, 535, 536, 540. Quinn v. Leathem, 519, 520, 521, 522, 523, 524, 525, 526, 527, 632, 550, 551. R. V. Adams, 461. — V. Barnard, 494. — V. Child, 19. — V. Coney, 51, 62. — V. Cross, 241. — V. Harvey, 126. — V. Jackson, 447. R. V. James, 384. — «. Matthews, 19. — V. Metropolitan Board of Works, 304. — V. Pedley, 255. — i\ Pembliton, 19. — V. Rosewell, 175. — V. St. George, S84. Race V. Ward, 260. Radoliffe v. Anderson, 206. Radley v. London and N. W. Railway Co., 42, 44. Raih-oad Co. v. Stout, 408, 410. Raleigh p. Goschen, 67, 95. Rameshur v. Kooni, 294. Randall v. Newson, 416. Rangeley v. Midland Railway Co., 260. Rapier v. London Tramways Co., 210, 220, 243. RatclifFe v. Evans, 122, 450, 491, 504. Raveuga v. Mackintosh, 539. Rawstron v. Taylor, 295. Rayner v. Mitchell, 102. Read v. Coker, 384. V. Edwards, 214, 224, 429, 432. r. Friendly Society of Stone- masons, 550, 551. V. Great Eastern Railway Co., 136, 143, 144, 380. V. HudsoD, 452. Readhead v. Midland Railway Co., 416. Reddaway v. Banham, 511. V. Bentham Hemp Spinning Co., 610. Redgrave v. Hurd, 503. Reedie t>. London & N. W. Railway Co., 318. Reeve v. Palmer, 330, 335. Reid V. Fairbanks, 366. Reinhardt v. Mentasti, 210, 221. Reis V. Perry, 490. Remorquage, &c. v. Bennetts, 11. Republic of Bolivia Exploration Syn- dicate, 60. Rey V. Lecouturier, 511. Reynolds v. Clarke, 184, 213. Rhodes v. Smethurst, 153, 154. Rice V. Reed, 164, 165. Rich V. Basterfield, 254. Richards v. Jenkins, 356. Richardson v. Silvester, 602. Riokards i'. Lothian, 225, 229, 231. Ricket V. Metropolitan Railway Co.,. 315. Ricketts v. T. Tilling, Ltd., 97. Riddell v. Pakeman, 547. Rideal v. Gt. W. Railway Co., 144. Riding v. Smith, 506. XXX INDEX OF CASES. Rigby v. Bennett, 278. Rist V. Faux, 443. Eobbins v. Joues, 313. Roberts (. Gwyfrai District Council, 297. r. Holland, 87. V. Read, 152. r. Roberts, 490. r. Ro.ie, 17.5, 176. V. Tayler, 170. Robinson v. Balmain Co., 387. V. Beaeonsfield, 114. V. Jenkins, 352, 358. ■V. Kilvert, 210, 218. 55. Robshaw V. Smith, 477. Robson V. N. E. Railway Co., Rodgers v. Maw, 163. Rogers r. Hosegood, 275. V. Lambert, 351, 367. ». Rajendro Dutt, 57. V. Taylor, 277. Roper r. H. M. "Works, 65. Rose I'. Groves, 311, 315. V. Miles, 314. V. N. E. Railway Co., 55. Ross V. Fedden, 229. Roswell c. Prior, 251, 252. Rourke v. White Moss Colliery Co., 94. Royal Aquarium Co. f. Parkinson, 469, 472. Royal Baking Powder Co. r. Wright, Crossley & Co., 506. Ruben v. Gt. Fingall Consolidated, 99. Ruddiman v. Smith, 105. Rumsey r. N. E. Railway Co., 163. Rushmer v. Polsue & Alfleri, 216. Russell J). Bell, 163. i\ Men of Devon, 320. 1'. Shenton, 253. Rust V. Victoria Graving Dock, 325. Ryall r. Kidwell, 412, 414. Rylands v. Fletcher, 221, 223, 224, 225, 226, 229, 230, 232, 233, 236, 237, 238, 239, 245, 248, 317, 430, 431, 432, 434. Ryppon V. Bowles, 251, 254, 284. Sachs v. Henderson, 5. Sadgrove v. Hole, 452, 455, 461, 462, 463. Sadler v. Gt. W. Railway Co., 80, 81, 220. Salt Lake City v. Hollister, 62. Salt Union v. Erunner, 305. Salvin v. North Brancepeth Coal Co., 211 Sampson v. Hoddinott, 303, 304. Samson v. Aitchison, 93. Sandeman v. Tyzack Co., 369, 370. Sanders v. Teape, 126. Sanders-Clark v. Grosvenor Man- sions Co., 221. Sanderson «. Collins, 102, 103. Sans Pareil, The, 50. Sapwell V. Bass, 122. Sarch v. Blackburn, 405, 406, 433. Sarson t>. Roberts, 412. Saunders v. Edwards, 155. V. Holboru District Board of Works, 555. V. Teape, 427. Saxby v. Manchester & Sheffield Railway Co., 176, 252. Schneider v. Heath, 495. Sohofield V. Bolton, 412. Scott ». Firth, 221. V. London Docks Co., 34, 35. i\ National Society for the Prevention of Cruelty to Children, 548. V. Shepherd, 185. V. Stansfieia, 469, 528, 530. Seaman v. Netherclift, 469, 470. Searles v. Scarlett, 490. Sears v. Lyons, 124. Sedgworth r. Overend, 87. Seear v. Lawson, 160. Senior v. Ward, 381. Seroka v. Kattenburg, 72. Seton V. Lafone, 350. Seymour v. Greenwood, 98. Shadwell v. Hutchinson, 139, 326. Shannon v. Shannon, 372. Sharp 1/. Powell, 125, 127, 132. V. Skues, 462. Shelfer v. City of London Electric Lighting Co., 147, i-lS, 150, 211, 219, 325. Shepheard v. Whitaker, 452, 462. Sheridan v. New Quay Co., 349. Sheriff v. James, 181. Shoreditch (Corporation of) v. Bull, 320. Short V. McCarthy, 152. Siddons v. Short, 278. Simmons v. Mitchell, 458, 492. Simpson v. Godmanchester Corpora- tion, 261. V. Savage, 325. Singer Machine Manufacturers v. Wilson, 509. Singer Manufacturing Co. v. Looo- 610. Six Carpenters' Case, 181, 195, 196 197. INDEX OF CASES. XXXI Skelton ,: L. & N. W. Uailway Co., 36, 41. Skinner t'. L. B. & S. C. Railway Co., 35. Slazenger & Sons i'. Spalding, 510. Smith V. Baker, 51, 52, 5:i, 112, 164, 165, 39S. V. Chadwiok, 494, 497, 498. v. Cook, 427. V. Egginton, 197. c. Enright, 372. i: Giddy, 176, 190, 211, 213, 214. V. Johnson, 385. f. Kaye, 447. i\ Keal, 93. i: Kenrick. 225, 228, 229. V. LiOndon and St. Katharine's Docks Co., 3b3, 403. I'. London & S. W. Railway Co., 131, 133. V. Marrable, 412. i: Martin, 92. V. Selwyn, 157, 168, 159. (. Streatfield, 475. r. South-Eastern Railway Co., 32. V. Spooner, 505. l: Steele, 416. V. Sydney, 545. • V. Thaokerah, 279. Smithies r. National Association of Operative Plasterers, 652. Smnrthwaite v. Hannay, 81. Snark, The, 316. Sneesby v. L. & Y. Railway Co., 129, 134. Snow V. Whitehead, 211. Somerville v. Hawkins, 473, 479. Southcote«. Stanley, 402. South Hetton Coal Co. v. N. E. News Association, 460, 451, 454, 483. South StaflFordshire Water Co. r. Sharman, 355. South Wales Miners' Federation v. Glamorgan Coal Co., 550, 551, 562. Spackman v. Foster, 347, 348, 361. Spalding v. Gamage, 609. Speake v. Hughes, 130, 132, 490. Speight V. Oliviera, 445. Spence v. Union Marine Insurance Co., 369, 370. Spill V. Maule, 473. St. Helens Smelting Co. v. Tipping, 210, 216, 219. Stanbury v. Exeter Corporation, 96. Stanley v. Powell, 16, 186. Starkey v. Bank of England, 499. Statham v. Statham, 60. Stephens v. Elwall, 334, 339, 345, 350. Stephens v. Myers, 384. Stephenson v. Hart, 345. Stewart v. Gromett, 544. V. Young, 605. StUes V. Cardiff Steam Navigation Co., 428, 430. Stimpson v. Wood, 382. Stookdale v. Hansard, 471. Stockport Waterworks Co. c. Potter, 265, 294, 309. Stocks i\ Wilson, 69. Storey v. Ashton, 102, 103. V. Robinson, 180. Street r. Union Bank of Spain, 514. Stroyan v. Knowles, 124, 281. Stuart f. Bell, 473, 476, 477. Sturges V. Bridgman, 210, 215, 217, 240. Sullivan v. Creed, 69, 424. i: Waters, 403. Sutcliffe V. Booth, 294. Sutton j;. Buck, 355. V. Temple, 412. Swaine v. Gt. N. Railway Co., 149. Swift V. Jewsbury, 503. Swindon Waterworks Co. v. Wilts Canal Co., 297, 301. Sykes r. N. E. Railway Co., 381. Symonds v. Hallett, 71. Taafe v. Downea, 529. Taif Vale Railway Co. v. Amal- gamated Society of Railway Servants, 65. Tafl Vale Railway i'. Jenkins, 381. Tancred v. AUgood, 353. Tarleton v. McGauley, 518. Tarrant D. Webb, 110. Tarry v. Ashton, 117, 316. Tasmania, The, 39. Taunton!'. Costar, 171. Taylor v. Man''hester, &c. Railway Co., 4. „. Mostyn, 200, 366. V. Nesfield, 530. Temperton v. Russell, 620. Teofani, Ld. v. Teofani, 573. Terry v. Hutchinson, 442. Thatcher v. Gt. W. Railway Co., 404. Thomas v. Bradbury, Agnew & Co., 480, 483, 486. » V. Churton, 469. V. Harries, 181. ». Quartermaine, 25, 36, 52, 53. -v. The Queen, 56. (.. Winchester, 423, 424. Thompson v. Bradford, 320. XXXll INDEX OF CASES. Thompson v. Gibson, 139, 212, 252, 254, 282. V. London County Council, 80, 81. ('. Mayor of Brighton, 321, 322. ,'. Ross, 443, 444. Thomson i\ Lord Clanmorri.s, 152, 167. Thorogood v. Bryan, 46 Thurman v. Wild, 83. Thurston v. Charlea, 367. Tilletto. Ward, 179, 239, 433. Tilling V. Dick, Kerr & Co., 157. Tobin », The Queen, 56. Todd V. Flight, 256, 256. V. Hawkins, 477. Torapson v. Dashwood, 462. Toogood V. Spyring, 476, 479. Tough V. N. B. Ey., 404, 413. Townsend v. Hughes, 144. V. Wathen, 405. Trinidad Asphalt Co v. Ambard, 281. TroUope v. London Building Trades Federation, 526. Trotter v. Maclean, 201. Trower v. Chadwick, 282. Tuberville v. Savage, 384. Tucker r. Newman, 325. • V. Wright, 371. Tuff V. Warman, 42, 44. Tulk V. Moxhay, 262, 274, 275. TuUidge v. Wade, 124. Tunney i\ Midland Railway Co., 109. Turberville r. Stampe, 247, 250. Turner v. Ambler, 538, 539. r. Cameron'.s Coal Co., 192. ■ ■ V. Meymott, 172. V. Spooner, 262. V. Stallibras, 5. Turton v. Turton, 513. Tussaud V. Tussaud, 508. TwycToss V. Grant, 76, 77. Twyman r. Knowles, 198. Umona, The, 48. Union Credit Bank v. Mersey Docks and Harbour Board, 348. Union Lighterage r. London Graving Dock Co., 277, 278. UsiU V. Hales, 488. Vacheb v. Compositors' Society, 66. Valentine Meat Juice Co. v. Valentine Extract Co., 573. Vallance v. Falle, 555, 557. Valpy V. Sanders, 165. Vaspori). Edwards, 179, 180, 181. Vaughan v. Menlove, 27, 28. r. Taff Vale Railway Co., 242. V. Watt, 343. Vera Cruz, The, 43. Vernon v. Keys, 497. Vicars v. Wilcocks, 134. Victorian Railways Commissioners v. Coultas, 385. Viveash v. Becker, 60. Vizetelly v. Mudie's Select Library, 463. Waite v. N. E. Railway Co., 46. Wakelin v. London & S. W. Railway Co., 32, 37, 40, 41. Wakley v. Cooke, 465 Waldeck v. Winfield, 95. Walker v. Gt. N. Railway Co. of Ire- land, 385. Walker & Sons, Ltd. , Peter v. Hodg- son, 480, 481. Walley v. Holt, 67. Wallis f . Hands, 192. Walter «•. Selfe, 215. Walters v. W. H. Smith & Sons, 391. Wandsworth Board of Works v. United Telephone Co., 190, 191, 310. Ward V. Hobbs, 417. V. Maeauley, 353, 375. V. Weeks, 491. Warner r. Riddiford, 386. Warren v. Brown, 287, 288. i\ Warren, 462. Wason, ex parte, 470. V. Walter, 483, 486, 489. Watkin *. Hall, 458, 466. Watkins v. Lee, 543. V. Naval Colliery Co., 110. Watson V. McEwen, 470. Weall r. King, 6. Weaver v. Ward, 70. Webb V. Beavan, 174, 492. V. Bird, 292. Webber v. Sparkes, 178. Weblin ». Ballard, 111. Weedon v. Timbrell, 447. Weingarten v. Bayer, 509. Weir V. Bamett, 95. V. Bell, 95. Weldon v. De Bathe, 71. V. Times Book Co., 463. Welfare v. London & Brighton Rail- way Co., 35. Wells V. Kingston-on-Hull, 269. INDEX OF CASES. XXXlll Wells r. Smith, 503. Wenman i. Ash, 461. Wennhakv. Morgan, 461. West V. Bristol Tramways Co., 225. V. Nibbs, ISl, 197. V. Smallwood, 390, 545. West Leigh Colliery Co. v. TunniolifEe and Hampson, Ltd., 139, 279. West London Commercial Bank v. Kitson, 496. "Westminster Brymbo Coal and Coke Co. c. Clayton, 229. Whaley v. Laing, 265. Whalley v. Lancashire & Yorkshire EaUway Co., 227, 229. Wheatley < . Patrick, 93. Whitbourne v. Williams, 443. White V. France, 393, 403. V. Hmdley Board of Health, 321. V. Jameson, 251. V. Mellin, 504, 505, 506. V. Spettigue, 158. V. Steadman, 419, 424, 427. Whitehead v. Ready, 99. V. Taylor, 90. Whitehouse v. Fellowes, 139, 153. Whitely c. Adams, 476. Whitmore'e, Ltd. r. Stanford, 231. Whittaker v. L. C. C, 63. Whitwham v. Westminster Brymbo Coal Co., 199. Whyler v. Bingham Rural Council, 320. Wicks r. Fentham, 543. WiSen v. Bailey, 534. Wigsell i'. School for Indigent Blind, 198. Wnbraham ». Snow, 336, 340. WUd V. Holt, 200. Wilde V. Waters, 174. Wilkes V. Hungerford Market Co., 315. WilMns V. Day, 313. Wilkinson v. Downton, 385. V. Haygarth, 194. . ■ V. Verity, 359, 360. Willans v. Taylor, 537, 538, 541. William Edge, Ltd. v. W. Nicolls, Ltd., 509. Williams v. Birmingham Battery Co. , 53, 394, 398. V. Eady, 424. 4,. Gesse, 335, 338, 344. V. Hays, 70. V. Jones, 103, 104. V. Mersey Docks and Har- bour Board, 157, 381. V. Morland. 302. Williams v. Protheroe, 161. V. Smith, 490, 545. Williamson v. Freer, 474. Willis V. Maclachlan, 633. Wilson V. Barker, 89. V. Brett, 29. ■ V. Chambers, 334. V. Finch Hatton, 412. V. Merry, 106. — f. Newberry, 230. V. Tavener, 269. V. Tumman, 79, 87, 88. ■ f. Waddell, 228. Windsor Railway Co. i. The Queen, 56. Wing V. London General Omnibus Co., 33. Winkfield, The, 198, 352, 355, 362, 363, 364, 365, 367. Winsmore v. Greenbank, 447. Winter v. Bancks, 349, 358. Winterbottom v. Lord Derby, 9, 178, 313 r. Wright, 418. Winterbourne v. Morgan, 187, 189. Witham p. Kershaw, 198. Wood V. Leadbitter, 187, 270, 271, 272, 273. V. Manley, 273. V. Morewood, 78, 201. V. Waud, 294, 301, 306, 307. V. Wood, 71. Woodhouse v. Newry Navigation Co., 151. ■ V. Walker, 78. Wormer v. Biggs, 179. Worth V. Gilling, 428. Wotherspoon v. Currie, 508, 511. Wren v. Weild, 505. Wright V. Lefever, 413. V. Leonard, 73. V. London & N. W. Railway Co., 107. ». Midland Railway Co., 381. V. Stavert, 258. Wyatt V. Harrison, 282. YiEMonTH V. France, 39, 51, 53, 55, 112. Ydun, The, 156. Young V. Bankier Distillery, 304, 306. D. Davis, 320. V. Hoffmann Manufacturing Co., lOfi. «'. Macrae, 505. THE LAW OF TORTS. CHAPTEE I. GENERAL PRINCIPLES OF LIABILITY. § 1. The Nature of a Tort. 1. A tort is a species of civil injury or wrong. The dis- Civil and tinction between civil and criminal wrongs depends on the .„rong8. nature of the appropriate remedy provided by law. A civil wrong is one which gives rise to civil proceedings — proceed- ings, that is to say, which have as their purpose the enforce- ment of some right claimed by the plaintiff as against the defendant : for example, an action for the recovery of a debt, or for the restitution of property, or for the specific perform- ance of a contract, or for an injunction against a threatened injury, or for the recovery of damages for an injury com- mitted. Criminal proceedings, on the other hand, are those which have for their object the punishment of the defendant for some act of which he is accused. He who proceeds civillj- is a claimant, demanding the enforcement of some right vested in himself; he who proceeds criminally is an accuser, demanding nothing for himself, but merely the punishment of the defendant for a wrong committed by him. It is often the case that the same wrong is both civil and criminal — capable of being made the subject of proceedings of both kinds. Assault, libel, theft, and malicious injury to property, for example, are wrongs of this kind. Speaking generally, in all such cases the civil and criminal remedies are not alternative but concurrent, each being independent of the other. The wrongdoer may be punished criminally by imprisonment or otherwise, and also compelled in a civil s. 1 GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. Action for damages the essential remedy for a tort. Tort and breaoli of contract. action to make compensatioa or restitution to the injured person. 2. Although a tort is a civil injury, all civil injuries are not torts, there being certain classes of such injuries which for special reasons are excluded from this department of the law. In the first place, no civil injury is to be classed as a tort unless the appropriate remedy for it is an action for damages. Such an action is an essential characteristic of every true tort. Thus, a public nuisance is not to be deemed a tort merely on account of the fact that the civil remedy of injunction may be obtained at the suit of the Attorney- General; it is a tort only in those exceptional instances in which a private person may recover damages for loss sustained by him in consequence thereof. Nor is a refusal to perform a statutory duty a tort if the only remedy is a mandamus. Nor is any wrong a tort if the appropriate remedy is an action, not for unliquidated damages, but for a liquidated sum of money — e.g., an action for money paid by mistake, or due under a judgment, or paid to the use of another without contract. Such claims are classed by our law as quasi-contractual, being based on a fictitious contract implied in law, but in truth they belong neither to the sphere of contract nor to that of tort. Although an action for damages is the essential remedy for a tort, there may be and often are other remedies also. In an action for a private nuisance an injunction may be obtained in addition to damages. In an action for the deten- tion of a chattel an order for specific restitution may be obtained, if the plaintiff pleases, instead of judgment for its value. In an action by a plaintiff dispossessed of his land he recovers the land itself, in addition to damages for the loss suffered during the period of his dispossession. But in all such cases it is solely by virtue of the right to damages that the wrong complained of is to be classed as a tort. 3. In the second place, no civil injury is to be classed as a tort if it is solely a breach of contract. Breach of contract is a species of wrong which stands apart from all others and is governed by a special body of law different in many im- SECT, l] THE NATURE OF A TORT. ^ portant respects from that which determines other forms of civil liability. It is often the case, however, that the same wrona: is both Concurrenoe a breach oi contract and a tort; and this happens in at least breach of two ways. In the first place, there are many instances in p^rgt^J^g which a person voluntarily binds himself by a contract to perform some duty which already lies upon him indepen- dently of any contract. The breach of such a contract is also a tort, inasmuch as liability would equally have existed in such a case had there been no contract at all: for example, a plij'sician ^^■ho harms his patient by negligently administer- ing a deleterious drug is guilty of a wrong which is both a breach of contract and a tort. It is a breach of contract be- cause the physician has impliedly promised to use due care and skill in the treatment of his patient, and it is also a tort because, apart from contract altogether, no one has a right to do another physical harm by giving him poison. Similarly, a bailee who wrongfullj' refuses to restore the property lent to him is liable both in contract and in tort: in contract because of his promise to restore it in due time, and in tort because no one has a right to detain another's property with- out some special justification. So also in all other cases in which, by a wilful or negligent act of misfeasance, harm is done to the person or property of another in the course of performing a contract made with him which involves the use of care and skill: for example, injury done to a borrowed horse by overdriving it. 4. There is, however, a second and more difficult form of Second the concurrence of tort and breach of contract; there arc ™°currenoe. cases in which the defendant takes upon himself by contract a duty which did not precedently and independently exist, and yet the breach of which is at the same time a tort. The explanation of these cases is that the defendant has by his contract — although it is a contract to do something which he was not otherwise bound to do — put himself in such a posi- tion that he cannot now break that contract without at the same time causing damage to the person or property of another, and so committing a tort by violating a right which 1(2) GENERAL PRINCIPLES 01;' LIABILITY. [CHAP. I. existed independently o£ contract. If I lend my horse to one who injures it by overdriving', he is, as we have already seen, guilty of a tort as well as of a breach of contract; for the duty not to overdrive another person's horse exists at common law independently of any contract. But if he kiUs the horse by failing to give it food, it may be assumed with some confidence that he is equally guilty of a tort: yet he was under no obligation to feed the horse except by reason of his contract to do so . The failure to supply food is per se merely a breach of contract, but the killing of the horse by reason of this failure is a tort; for I have a right apart from contract that mj horse shall not be killed, and the defendant, by undertaking to feed it and by failing to do so, has been the direct cause of the animal's death, just as much as if he had killed it by administering poison or by any other misfeasance. Therefore if A lends his horse to B, who lends it to C, who starves it to death, we may assume that A' would have a good cause of action in tort against C, and that C could not plead that he owed no duty save a contractual one towards B. It must not be supposed, indeed, that there is any general rule of English law that he who, by breaking a contract with one person, causes harm to another is liable to that other in an action of tort. In general, as we shall see in the sequel, he is under no such liability, and owes no duty save to the person with whom he contracted. ^ Nevertheless in certain exceptional instances this concurrence of contractual and de- lictal liability does exist, and we are here concerned, not with the details of the matter, but merely with the significance of such concurrence in respect of the nature and definition of a tort. 2 1 Dickson v. B&uter's Telegram Co. (1877), 3 C. P. D. 1; Earl v. LubbocTc, (1905) 1 K. B. 253. 2 The concurrence of contractual and delictal liability is illustrated by the following cases, in all of which the act of the defendant was held to be a tort, although clearly at the same time a breach of contract: Bryant v. Eerbert (1878), 3 C. P. D. 389 (wrongful detention of chattels lent) ; Kelly v. Metropolitan Ely. Co., (1895) 1 Q. B. 94i (injury to passenger through negligence of railway servant) ; Taylor v. Manchestei: i-c. My. Co., (1895) 1 Q. B. 134 (the same); Foulkes v. Metropolitan SECT. l"l THE NATURE OF A TORT. ' 3. The true boundarv-line between contract and tort is Fictitious 1 J 1 , .' . . , . . concurrence obscurea by the recognition m the older law (a recognition of tort and which has not yet wholty ceased) of certain quasi-contracts ^ontraot the breach of which is really a mere tort, and of certain quasi-torts Mhich are in reality mere breaches of contract. (a) Quasi-contracts. It was, under the old practice, and indeed still is, permissible in certain cases to waive a tort and sue instead on a fictitious contract implied in law. Thus, if A takes away and sells a chattel belonging to B, B instead of suing him in tort for the value of the chattel may sue him for the price so received by him on its sale, on a fictitious contract of agency This doctrine of the waiver of torts will be considered by us more fully in a subsequent chapter. (6) Quasi-torts. Since the abolition of forms of action, fictitious or quasi-torts have ceased to perplex our modern law. They wore the outcome of a perverted development of legal procedure, and have disappeared with the procedure to which they owed their origin. A knowledge that they once existed, however, is still essential if we would read with understanding the older authorities. The historical ex- planation of these fictitious torts, which are in reality mere breaches of contract, is to be found in the fact that the action of assumpsit, Avhich was the general remedy for the breach of a simple contract, was in its origin a mere variety of the action of case, which was one of the most important remedies for a tort. Our law possessed originally no effective remedy for the breach of a simple contract. When the breach of Jili/. Co. (1880), 5 C. P. D. 157 (the same); Turner v. Stallibrass, (1898) 1 Q. B. 56 (injury to horse lent); Pontifex v. Midland Rly. Co. (1877), 3 Q. B. D. 23 (wrongful delivery of gooda by carrier to consignee after notice of stoppage in transitu); Sachs v. Henderson, (1902) 1 K. B. 612 (wrongful removal of fixtures by landlord in interval between agreement for lease and actual demise); Rayne v. QulUford (1879), 4 0. P. D. 182 (injury to goods by negligence of carrier, whether contract of carriage made with owner of goods or not); Meux v. G. E. Mly. Co., (1895) 2 Q. B. 387 (thesiame); Gladicell v. Steggall (1839), 5 Bing. N. C- 733, and Pippin v. Sheppard (1822), 11 Price, 400 (negligence of surgeon); Langridge v. Levy (1837), 2 M. & W. 519; 4 M. & W. 337 (personal injuries caused to plaintiff through fraud of defendant in selling a dangerous chattel to a third person) ; Payne v. Rogers (1794), 2 H. Bl. 350 (injury to passenger in highway caused by failure of landilord to fulfil his contract with tenant to keep the premises in repair) ; Edwards V. Mallan, (1908) 1 K. B. 1002 (negligent extraction of a tooth). GENERAL PKINCIPLES OF LIABILITY. [CHAP. I. sucli a contract was also a true tort, the delictal remedies of trespass and case were available; but when the wrong Avas a mere breach of contract the rigour of the older law supplied no action save in exceptional cases. This defect was ulti- mately overcome by the device of suing in tort (in the action of case), even when there was no real tort at all, but merely a breach of contract. In the result the action of case, when so perverted from its proper uses and employed as a con- tractual remedy, became differentiated into a distinct action — namely, assumpsit. The improvement thus effected in the law was great, for it rendered possible for the first time the development of a comprehensive law of contract. But this benefit was not obtained without cost. It was based upon a fictitious identification of torts with breaches of contract, and until the last days of common-law pleading the effects remained visible of this confusion and partial obliteration of the boundary-line between the law of torts and the law of contracts. For, notwithstanding the differentiation of the action of assumpsit, it continued to be permissible in many cases to sue in the original delictal action of case for cause6 of action which were undoubtedly merely contractual. Until the abolition of forms of action, therefore, it remained impossible to draw any logical distinction between contract and tort which would have conformed to the established rules of procedure. At the present day we are at liberty to disregard these pervei'sities of the old pleading and practice and to draw in accordance with logical requirements the boundary-line between contract and tort.^ 3 For examples of such actions of tort for pure breaches of contract, see ilarzetti v. Williams (1830), 1 B. & Ad. 415 (banker dishonouring' customer's cheque) ; Weall v. King (1810), 12 East, 452, and Green v. Greenhanh (ISlfi), 2 Marsli. 485 (breach of warranty on sale); BurneU v. Lynch (1826), 5,B. & 0. 589 (breach of con- tract of indemnity). There are even judicial dicta which carry these and similar cases to their ultimate logical conclusion — namely, the inclu- sion of the whole sphere of contract within that of tort. " Wherever there is a contract," says Lord Oampbell in Broicn v. Bonnnan (1844), 11 CI. & F. p. 44, "and something to be done in the course "of the employment which is the subject of that contract, if there is a breach of duty in the oourse of that employment, the plaintiff may either recover in tort or in contract." If this were indeed so, the whole distinction between tort and breach of contract would be reduced to a matter of SECT, ij THE NATUEE OF A TORT. 6. Xo civil injury is to be classed as a tort if it is merely Tort and a breach of trust or a breach of some other merely equitable ^rust^'' °* obligation. The reason of this exclusion is historical only. The law of torts is in its origin a part of the common law, as distinguished from equitj% and it was unknown to the Court of Chancery. Wrongs, therefore, such as breach of trust, which fell exclusively within the jurisdiction of that Court stand outside the category of tort, and are governed, just as breach of contract is, by a body of special rules differing in sundry respects from those which have been developed by the common law of torts. And although at the present day the difference between equitable and common-law jurisdiction has disappeared, it is still requisite to preserve the memory of it in defining the limits of the law of torts. 7. Summing the matter up, we have seen that there are Summary, four classes of wrongs which stand outside the sphere of tort: — (a) Wrongs exclusively criminal; {b'} Civil wrongs which create no right of action for damages, but give rise to some other form of civil remedy exclusively; (c^^ Civil wrongs which are exclusively breaches of con- tract ; (f/ Civil wrongs which are exclusively breaches of trust or of some other merely equitable obligation. We maj- accordingly define a tort as a civil lorong for Tort defined. ivhich the remedy is an action for damages, and tvhich is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.^ the form of pleading. Fortunately for the rationa,lity of our law the abolition of the old system of procedure has enabled us to get back to ithe substance of the matter, taking no further account of these anomalies of form. * The terms tort and wrong were originally synonymous and coex- tensive in application. Tort is derived from the Latin tortum, while wronq is in its origin identical with wrung, both the English and the Latiii terms meaning primarily, therefore, conduct which is crooked; or twisted, as opposed to that which is straight or right {rectum). Tort, however, has become specialised in its ajxplication, while wrong has remained generic. GENERAL PEINCIPLES OK LIABILITY. [CHAP. I. Two con- ditions of liability. Damage. Damnum sine injuria. § 2. The General Conditions of Liability. 1. In general, though subject to important exceptions, a tort consists in some act done by the defendant whereby he has wilfully or negligently caused some form of harm to the plaintiff. That is to say, liability for a tort is commonly based on the co-existence of two conditions: — {a) Damage suffered by the plaintiff from the act of the defendant; (6) Wrongful intent or culpable negligence on the part of the defendant. 2. Damage. The law of torts exists for the purpose of preventing men from hurting one another, whether in respect of their property, their persons, their reputations, or any- thing else which is theirs. The fundamental principle of this branch of the law is Al'terum non laedere — to hurt nobody by word or deed. An action of tort, therefore, is usually a claim for pecuniary compensation in respect of damage so suffered. 3. Damnum sine injuria. Nevertheless there are many forms of harm of which the law takes no account. There are many acts which, though harmful, are not wrongful, and give no right of action to him who suffers their effects. Damage so done and suffered is called damnum sine injuria,^ and the reasons for its permission by the law are various and not capable of exhaustive statement. For example, the harm done to the individual may be more than counterbalanced by the benefit accruing to the public at large: as in the case of the loss inflicted on individual traders by competition in trade, ^ or certain forms of harm done to one's neighbour in the exercise of one's rights of property .^ Or the harm com- plained of may be too trivial, too indefinite, or too difficult of proof for the legal suppression of it to be expedient or effective. Thus no action, it seems, will lie to recover 1 The term injuria is here used in its original and proper sense of wrong (in jus, contrary to law). The modern use of injury as a synonym for damage is unfortunate but inveterate. 2 Mofful Steamship Co. v. McGregor, Gow # Co., (1892) A. C. 25 3 Mayor of Bradford v. PicUes, (1895) A. C. 587. ♦SECT. 2] CONDITIONS OF LIABILITY. damages for mere mental suffering miaccompanied by physi- cal harm, though caused by the wilful act or the negligence of the defendant.^ " Mental pain or anxiety the law cannot value and does not pretend to redr-ess.''^ So also the harm done may be of such a nature that the law considers it in- expedient to confer any right of pecuniary redress upon the individuals injured, but provides some other remedy, such as a criminal prosecution, as exclusively appropriate. Such is the case, for example, with the harm which an individual suffei-s in common with the public at large by reason of the existence of a public nuisance. ^ Since, therefore, all harm is not actionable, it is necessary to ascertain whether liability for harm is the general rule, subject to specific exceptions based on definite grounds, or whether, on the contrary, the general rule is one of exemption from liability save in those specific instances in which the law declares that particular kinds of harm are wrongful. In other words: Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some sp'ecific ground of justification or excuse, or does it consist of a numbej?^of specific rules pro- hibiting certain kinds of harmful activity, and leaving aU the residue outside the sphere of legal responsibility ? It is submitted, that the second of these alternatives is that which has been accepted by our law. Just as the criminal law -consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing speci- fic injuries. Neither in the one case nor in the other is there ■any general principle of liability. Whether I am prosecuted for an alleged offence, or sued for an alleged tort, it is for my adversary to prove that the casp falls within some specific :and established rule of liability, and not for me to defend 4 Duiiezi V. irhlfe, (1931) 2 K. B. at p. 673, per Kennedy, J. Simi- larly, no solatium for wounded feelings is reooverable under the Fatal Accidents Act for the death of a, relative. Blake v. Midland Ely. Co. <1852), 18 Q. B. 93. 3 Lynch v. Knight (1861), 9 H. L. C. at p. 598. 6 Winterbottom v. Lord Derby (1867), L. R. 2 Ex. 316. 10 GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. myself by proving that it is within some specific and estab- lished rule of justification or excuse.^ Examples of The following instances of damnum sine injuria suffi- damnum sine • i -n i p i i_ injuria. ciently illustrate the matter for our present purpose, but any adequate discussion of those cases and of the true limits of the rules established by them would be premature at this stage of our inquiry. In Mogul Steamship Co. v. McGregor, Gow <& Co.^ it was held that damage done by competition in trade was not actionable, even though the competition assumed the form of a combination among certain shipowners to drive a rival shipowner out of the trade by temporarily reducing freights to an unremunerative level. In Dickson v. Beiiter's Telegram Co.^ the defendant com- pany negligently delivered a telegraphic message to the plaintiff, for whom it was not intended, and the plaintiff suffered heavy loss by acting upon certain instructions therein contained. He was held, however, to have no cause of action, the company owing no duty of care in the matter to any person except its own customer, the sender of the message. In Mayor of Bradford v. Pickles^^ it was held that damage done to the owners of waterworks by the act of an adjoining owner in intercepting the underground supply of water to- those works was merely damnum sine injuria, even though the motive of the defendant was a malicious intent to injure the plaintiffs. In Derry v. Peek^^ it was decided that, in the absence of a contractual duty to use care, no action will lie for loss caused by making negligent misrepresentations to another person with intent that he should act on them. '' The contrary opinion, indeed, has in its favour the high autliority of Sir Frederick Pollock (Laiw of Torts, p. 21, 9th ed.). His view that aJl harm is actionable unless it falls within some specific and recognised ground of justification or excuse is one which I should gladly accept as affording a comprehensive and logical basis for the law of torts; but it seems hard to reconcile it with the actual contents of our legal system. It is difEcult to see that English law contains any reasoned' and exhaustive list of the grounds of exemption from liability. Ther only adequate answer to many claims for damages is the mere ipse dixit of the law that no such cause of action is recognised. 8 (1892) A. C. 25. 9 (1877), 3 C. P. D. 1. 10 (1895) A. C. 587. ii (1889), 14 A. C. 337. SECT. 2] CONDITIONS OF LIABILITY. H In Anglo- Algerian Steamship Co. v. The Houlder TAne^^ a steamship belonging to the defendants was by negligent navigation brought into collision with the gates of a certain dock. The injury so caused to the gates necessitated the closing of the dock for some time, and in consequence the plaintiffs, a shipping company, were unable to obtain accom- modation in the dock for one of their steamers, and suffered pecuniary loss accordingly. It was held, however, that they had no cause of action against the owners of the steamship which did the damage. Negligent injury to property gives an action to the owner of that property, or to other persons having some proprietary interest therein, but not to mere strangers who are thereby subjected to pecuniary loss. In Cattle v. Stockton Waterworks Co.^^ the plaintiff was a contractor who had undertaken to construct a tunnel under certain land belonging to another person. The defendants, the owners of adjoining waterworks, negligently allowed the escape of water from their main, and this escape rendered the completion of the plaintiff's contract much more difficult and costly than it would otherwise have been. Nevertheless the plaintiff was held to have no cause of action for the loss so suffered by him. A nuisance is actionable only at the suit of the occupier or the owner of the land affected by it; not at the suit of strangers, whatever pecuniary interest they may ' have in the non-existenbe of the nuisance. In Earl v. Lubbock^^ the defendant contracted to repair a van belonging to the employer of the plaintiff. He repaired it so negligently that, while the plaintiff was driving it, one of the wheels came off, and the plaintiff suffered personal in- juries in the resulting accident. Yet he was held to have no cause of action. The defendant was guilty of a mere breach of contract, and was responsible to no one save the other party to the contract— namely, the plaintiff's employer. 4. Injuria sine damno. Just as there are cases in which l-njunasine dmnna. 12 (1908) 1 K. B. 659. 13 (1S75), L. R. 10 Q. B. 453. See also Remorqtuige a Ilelice {Sooiete Anonyme de) v. Bennetts, (1911) 1 K. B. 243. 14 (1905) 1 K. B. 253. 12 GENERAL I'KINCIPLES OF LFABILITY. [CHAP. I. damage is not actionable as a tort {damnum sine injuria), so conversely there are cases in which an act is actionable as a tort although it has been the cause of no damage at all (injuria sine damno). Torts are of two kinds — namely, those which are actionable per se, and those which are actionable only on proof of actual damage resulting from them. The law sometimes says to a defendant: You will be held liable if you do such and such an act. At other times it says merely: You will be held liable if, in consequence of such and such an act, damage is inflicted on the plaintiff. Thus the act of trespassing upon another's land is wrongful and actionable, even though it has done the plaintiff not the slightest liarm. " 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 license but he is liable to an action, though the damage be nothing. "^^ Similarly a libel is actionable per se, while slander, on the other hand (that is to say, verbal as opposed to written defamation), is in most cases not actionable without proof of actual damage. The explanation of those cases in which a right of action is conferred on a person who has sustained no harm is to be found in the fact that certain acts are so likely to result in harm that the law prohibits them absolutely and irrespective of the actual issue. We may say that in such cases the law conclusively presumes damage, because of the mischievous tendency of the act; whereas in other cases there is no presumption, and actual harm must be proved as a fact. The distinction may be conveniently expressed by distiji- guishing all rights as being either- absolute or qualified. An absolute right is one the violation of which is actionable per se ; a qualified right is one the violation of which gives rise in itself to no action, but is actionable only as being in the actual result an instrument of mischief. Thus, the right not to be libelled is absolute, while the right not to be slandered is merely qualified. Mensrea. 5. Mciis rea. The second Condition usually demanded by 15 Eiitidc V. Cnn-ington (1765), 19 St. Tr. 1066. SECT. 2] CONDITIONS OF LIABILITY. 13 the law for liability in an action of tort is the existence of either wrongful intention or culpable negligence on the part of the defendant. These two different mental attitudes of the defendant towards his act and its consequences rnay be c lassed togeth er under the name of mens rea — a guilty mind — and a fundamental principle of delictal liability is ex- pressed in the maxim, Actm non facit reum, nisi mens sit rea. The act itself creates no guilt in the absence of a guilty mind. 16 Tlie reason of this rule is that the ultimate purpose of the law in imposing liability on those who do harm to others is to prevent such harm by punishing the doer of it. He is punished by being compelled to make pecuniary compensation to the person injured. It is clear, however, that it is useless to punish any person, either civilly or criminally, unless he acted with a guilty mind in the sense already explained. No one can be deterred by a threat of punishment from doing harm which he did not intend and which he did his best to avoid. All that the law can hope to effect by way of penal discipline is to make sure that men will not either wilfully or carelessly break the law and inflict injuries upon others. Pecuniary compensation is not in itself the ultimate object or a sufficient justification of legal liability. It is simply the instrument by which the law fulfils its purpose of penal coercion. When one man doqs harm to another without any intent to do so and without any negligence, there is in general no reason why he should be compelled to make compensa- tion. The damage done is not thereby in any degree diminished. It has been done, and cannot be undone. By compelling compensation the loss is merely shifted from the shoulders of one man to those of another, but it remains equally heavy. Reason demands that a loss shall lie where it falls, unless some good purpose is to be served by changing its incidence; and in general the only purpose so served is 16 In its application to the criminal law, m,ens rea is used in a narrowea? sense to include wrongful intention only, this be.ing commonly the only form of it which is sufficient to create criminal liability. In the law of torts, however, the term must be taken to include negligence also. 14 GENEKAL PRINCIPLES OF LIABILITY, [CIIAP. I. that of punishment for wrongful intent or negligence. There is no more reason why I should insure other persons against the harmful results of my own activities, in the absence of any mens rea on my part, than why I should insure them against the inevitable accidents which result to them from the forces of nature independent of human actions altogether. i" It commonly makes no difference in respect of the existence or measure of civil liability whether the mens rea of the de- fendant amounts to wrongful intent or merely to negligence. Whenever a man is liable for doing a certain kind of harm intentionally, he is in most cases equally liable if he does it negligently. This rule, however, as to the equivalence of the two forms of meiis rea is subject to certain exceptions — cases in which wrongful intent is a ground of liabilit}-, but negligence is not. To take a single example, it is actionable to cause harm to a person by wilfully and fraudulently de- ceiving him, but it is not in general actionable to do similar harm by means of a merely negligent misrejDresentation.^^ Mens rea not always required. § 3. Absolute Liability. 1 . The rule that mens rea in one or other of its two forms — wrongful intent or negligence — is an essential condition of civil liability for a tort is subject to important exceptions. Tliese exceptional cases in Avhich liability is independent of intention or negligence may be conveniently distinguished as cases of absolute liability. They may be explained and justi- fied (except so far as they are merely the outcome of his- torical accident) as being based on a conclusive presumption of negligence — a presumj^tion established by the law on the ground that to require actual proof of the necessary mens rea would in these particular instances impose too great a burden upon the plaintiff and unduly limit the efficiency and the certainty of the administration of justice. 1'' For a discussion of this matter, see Holmes's Common Law, pp 81 -96; Pollock's Torts, pp. 138—151, 9th ed. 18 jDerri/ v. Peeh (1889), 14 A. C. 337. SECT. 3] ABSOLUTE LIABILITY. 1^ All cases of absolute liability may be divided into three classes: — (a) Liability for inevitable accident; (6) Liability for inevitable mistake; (c) Vicarious liability for the wrongful acts of others. "3. Inevitable accident. Damage is said to be caused by Inevitable inevitable accident when it is not caused intentionally, and usually a could not have been avoided by reasonable care on the 23art of S'^°^ defence, him who caused it.^ Itneed not have been inevitable in the stricter sense — that is to say, incapable of being prevented at all. If a man wiU. carry firearms or drive a horse, his dutj- is merely to use reasonable care not to do harm to others thereby; and if notwithstanding the use of such care an accident happens, he may plead that it was due to inevitable accident; and it will be no answer to this plea that by a greater degree of care he might have avoided the mischief, or that if he had altogether refrained from those dangerous forms of activity it would not have ensued. That inevitable accident in this sense is commonly a good defence in an action of tort is merely an application of the general principle as to the requirement of mens rea. Not- withstanding this general principle, however, there are exceptional cases in which inevitable accident is not recog- nised as any ground of exemption — cases in which a man acts at his peril (suo periculo) and is made by law an insurer of others against the harmful results of his activities. What these cases are we shall consider in detail later. It is suffi- cient to mention here, as illustrations, damage done by the trespasses of cattle,^ damage done by fire,^ damage done by wild animals,* and damage done by the escape of water or other dangerous substances brought or kept by any one upon his land. 5^ 1 The Marpesia (1872), L. R. i P. C. 212. 2 miis V. Loftm Iron Co. (1874), L. R. 10 C. P. 10. 3 £lack V. ChristoJiMrch Finance Co., (1894) A. C. 48. 4 Faimrn v. People's Palace Co. (1890), 25 Q. B. D. 258. 5 Rylands v. Fletcher (1868), L. R. 3 H. L. 330. 6 It was at one time doubt«i whether the defence of inevitable acci- dent was available at all in the case of damage for which the appropriatei 16 GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. Inevitable mistake usually no defence. Accident and mistake dis- tinguished. 3. Inevitable mistake. Although inevitable accident is commonly a good defence against civil liability, inevitable mistake is commonly no defence at all. Any -wilful inter- ference with the property, person, reputation, liberty, or other right of another person on a supposed justification is done at the doer's peril; and if the justification does not in truth exist, a belief in its existence, however honest and reasonable, is no defence. It makes no difference in such a case whether the mistake is one of fact or one of law. It is essential for this reason to distinguish carefully be- tween accident and mistake. The plea of inevitable accident is that the consequences complained of as a wrong were not intended by the defendant and could not have been foreseen and avoided by the exercise of reasonable care. The plea of inevitable mistake, on the other hand, is that although the act and its consequences were intended, the defendant acted under an erroneous belief, formed on reasonable grounds, that some circumstance existed which justified him. Such a mistaken belief in justification, however reasonable, is not itself a justification. This is probably the most important of all the exceptions recognised by law to the requirement of mens rea as a ground of civil liability. It must be regarded as having its reason in the evidential difficulties in which the law would find itself involved if it consented to make any inquiry into the honesty and reasonableness of a mistaken belief which a defendant sets up as an excuse for his wrongful act. Thus, an auctioneer who sells and delivers goods as the agent of a customer having no title to them is liable for their value to the true owner, even though he so acted in good faith and without negligence, and even though he has already paid the proceeds of the sale to his own customer.'' " Persons deal remedy was the old action of trespass (to person or property) . But it is now settled that there ifi no distinction in this respect between itrespasi^ and other forms of deliotal remedy. Stanley v. Poioell, (1891) 1 Q. B. 86; Holmes v. Mathei- (1875), L. E. 10 Ex. 261. For the history of the law on this point, see Street's Foundations of Legal Liability^ Vol. I. 74—82; Pollock's Law of Torts, pp. 144—150, 9th ed.; Holmes's Common Law, pp. 84 — 89. '' Consolidated Co. v. Curtis, (1892) 1 Q. B. 495. SECT. 3 1 ABSOLUTK LIABILITY. 17 with the property in chattels or exercise acts of ownership! over them at their peril. "8 Similarly, he who enters upon the land of another is liable in trespass, even though he honestly and on reasonable grounds believed that the land was his own, or that he had a right of entry on it.^ So although a de- famatory statement is not actionable if it is true, a mistaken belief in its truth, on whatever grounds it may be based, is commonly no defence. He who attacks another's reputation does so at his own peril. So a sheriff who by mistake in the execution of a writ seizes the goods of the wrong person or arrests the wrong person is just as responsible in an action for damages as if he had been guilty of a wiKul wrong. ^o 4. To this general principle of absolute liability for mis- Special cases take the law recognises a few exceptions of minor importance, mistake a there being certain CEises in which it would work such hard- S*""^ defence, ship or interfere so seriously with the exercise of lawful activities that it is necessary to relax it. Thus, for example, the mistaken prosecution of an innocent man is not in itself an actionable wrong; for such a rule would effectually pre- vent the administration of the criminal law. A prosecutor incurs no Kability unless he acted both maliciously and with- out reasonable cause. ^^ So the mistaken arrest of an innocent man on suspicion of felony is not actionable, if a felony has actually been committed, and if there is reasonable ground for believing that the person arrested is guilty of it.^^ So although, as we have seen, a mistaken defamatory statement is actionable in ordinary cases, yet in those special cases which are said to be privileged, mistake creates no liabilitj' unless the statement is not merely erroneous but is also made maliciously from an improper motive. 5. Yieariotis liability . The third and last form of absolute Vicarious liability is that which may be distinguished as vicarious. In ^"^ " ^• general a person is responsible only for his own acts, but* there are exceptional cases in which the law imposes on him 8 Fowler v. Bollms (1872), L. R. 7 Q. B. at p. 639. 9 Basely v. Clarhson, 3 Lev. 37; Cope v. Sharpe, (1911) 2 K. B. 837. 10 Glasspoole v. Young (1829), 2 B. & O. 696. 11 EUee V. Smith (1822), 1 Dowl. & %. 97. 12 Beckwith V. PUlby (1827), 6 B. & O. 635. s. 2 18 GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. vicarious responsibility for the acts of others. The most important and far-reaching instance of this is the responsi- bility of a master for his servant. A master is liable for the torts of his servant provided that they are committed in the course of the servant's employment, even though they were not authorised by the master, and indeed even though they were expressly forbidden by him.i^ Minor instances of vicarious liability are the responsibility of a husband for the torts of his Avif e,i* that of a partner for the torts of his part- ner in and about the partnership business,^^ and that of a corporation for the torts of its directors and other agents in the conduct of its affairs. ^^ Ambiguity of term malice. Pirst sense of the term. § 4. Wrongful Intent and Malice. 1. The term malice, as u,sed in law, is ambiguous, and jDossesses two distinct meanings which require to be carefully distinguished. It signifies either (1) wilful and conscious wrongdoing, or (2) action determined by an improper motive. To act maliciously means sometimes to do the act inten- tionally, with knowledge that it is wrongful, while at other times it means to do the act from some wrong and improper motive, some motive of which the law disapproves. This motive need not be that of spite or ill-wiU — that is to say, it need not amount to malice in the narrow and popular sense of the term. Any motive is malicious in the legal sense which is not recognised by law as a sufficient and proper one for the act in question. As an example of the use of malice in the first sense — i.e., wilful and conscious wrongdoing — we may take the criminal law as to unlawful and malicious injuries to property .^ To kill an animal unlawfully and maliciously means to kill it ^intentionally, knowing that the act is illegal. The term malicious refers here not to the motive or reason of the act, 13 Limpus V. London General Omnibus Co. (1S62), 1 H. & C 526 li Earle v. Kingsoote, (1900) 1 Oh. 203. " Bamlyn v. Houston, (1903) 1 K. B. 81. 18 Citizen's Life Assurance Co. v. Brown, (1904) A. C 423 1 24 & 25 Vict. c. 97, ss. 40, 51, etc. SECT. 4] WRONGFUL INTENT AND MALICE. 19 but to the knowledge -with which it is committed. A malicious wrong iu this sense is opposed to a negligent wrong and to one committed under an honest though mistaken claim of right. "j\Ialice," it has been said,^ in reference to this class of cases, " may be defined to be where any person wil- fully does an act injurious to another without lawful excuse." It is to malice in this sense that the well-known definition given by Barley, J., in Bromage v. Prosser^ is exclusively applicable: "Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse."* 2 . Clearly to be distinguished from this first sense of the Second sense term malice is the second sense, in which it signifies the exist- ° ^ ^'™' ence of an improper motive. Thus, malicious prosecution does not mean the intentional and consciouslj- wrongful prosecu- tion of an innocent man; it means a prosecution inspired by an improper motive — a motive which the law does not allow and sanction: for example, the extortion of money. ^ A prosecution so inspired may be actionable even though there was an honest beUef in the guilt of the accused. Similarly, malicious defamation does not mean the intentional publica- tion of a defamatory statement, but defamation which (even though honestly and on reasonable grounds believed to be true in fact and therefore justified in laAv) is inspired by an improper motive. Such a motive destroys the protection 2 S. V. Pembliton (1874), L. R. 2 C. C. at p. 122, per Blackburn, J. 3 (1825), 4 B. & O. at p. 255. ^ Cf. Bowen, L. J., in Mogul Stemnship Co. v. McGregor, Gow ,^ Co., 23 Q. B. D. p. 612: "Maliciously means and implies an intention to do an act which is wrongful to the detriment of another." So Lord Watson in Allen v. Flood, (1898) A. O. p. 94 : " In order to constitute legal inalice the act done must be wrongful . . . and the intentional doing of that wrongful act will mafce it a malicious wrong in the sense of law." It need only b© added that wrongful intent, and therefore malice in this sense, extends in law to includie not merely actual intent, but also that constructive intent which the law occasionally attributes to him who, though he does not in fact intend a mischief, acts with full knowledge of the danger and with reckless and conscious disregard of it. See, on the whole matter, Miles v. Sutohings, (1903) 2 K. B. 714; I>aniel v. James (1877), 2 O. P. D-. 351; Reg. v. Matthews (1877), 14 Cox C. C. 5; Reg. V. Pembliton (1874), L. R. 2 O. 0. 119; Reg. v. Child, L. R. 1 O. C. 307. 5 Mitchell V. Jenkins (1833), 5 B. & Ad. p. 595. 2(2) 20 GENERAL PRINCIPLES OF LIABILITY. [cHAP. I. which the law affords to defamatory statements made on privileged occasions. ^ Motive 3 gg^yg £jj exceptional cases such as those iust mentioned, commonly . . '^ _ ...,., irrelevant. malice in the sense of improper motive is entirely irrelevant in the law of torts. Tlie law in general asks merely what the defendant has done, not why he did it. A good motive is no justification for an act otherwise illegal, and a bad motive does not make wrongful an act otherwise legal. The rule is based partly on the danger of allowing such a tribunal as a jury to determine the liability of a defendant by reference to their own opinions and prejudices as to the propriety of his motives, and partly on the difficulty of ascertaining what these motives really were. A leading case on this matter is The Mayor of Bradford v. Pickles,'^ in which the defendant was held not liable for in- tentionally intercepting, by means of excavations on his own land, the underground water that would otherwise have flowed into the adjoining reservoir of the plaintiffs, although his sole motive in so doing was to coerce the plaintiffs to buy his land at his own price. It was already settled law that the interception of underground water is not an actionable wrong, even though done intentionally,^ but in the present oasie an attempt was made to establish an exception to this rule when the damage was caused not merely intentionally but mali- ciously. This contention, however, was rejected by the House of Lords. Lord Watson says:^ "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." Lord Macnaghten speaks to the same effect r^" " Li such a case motives are immaterial. It is the act, not the motive for the act, that must be regarded. If the act apart from the motive gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element . ' ' The same J)rinciple was again 6 "Acting maliciously means acting from a bad motive." Per Parke,' B., in Srook v. Mawl (1849), 19 L. J. Ex. p. 115. '' (1895) A. O. 587. s Chasemore v. Richards (1859), 7 H. L. C. 349. 8 (1895) A. O. p. 698. lo /jy. p. goi. SECT. 4] WRONGFUL INTENT AND MALICE. 21 formulated by the House of Lords in the later case of Allen V. Flood. Lord Watson there sajs:ii "Although the rule may be otherwise with regard to crimes, the law of England does not, according to my apprehension, take into aocount motive as constituting an element of civil wrong. . . . The existence of a bad motive in the case of an act which is not in itself illegal will not convert that act into a civil wrong. "^^ 4. There are certain exceptdons to the general principle Special oases that motive or malice is immaterial in the law of torts — ■ motive is exceptions wliich obtained firm establishment in the law relevant, before the general doctrine had received express recognition. The chief of these exceptional cases are the wrongs of de- famation and malicious prosecution. An erroneous defama- tory statement made on a privileged occasion is excused by the law if it is made honestly and from a proper motive, but otherwise it is subjected to the ordinary rule of absolute lia- bility for mistake. Similarly, the mistaken prosecution of an innocent person on insufficient grounds is excused by the law if it was inspired by proper motives, but the existence of malice destroys this protection and subjects the prosecutor to the ordinary principle that he who makes a mistake must pay for it. § 5. Negligence. 1. Negligence is the breach of a legal duty to take care. Negligence It is carelessness in a matter in which carefulness is made fnte^ well-known definition of Alderson, B., in Blyth v. Birmingham Waterworks Co. :^ "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." Negligence, that is to say, is conduct different from that of a prudent and reasonable man; therefore it is imprudent and unreasonable conduct^ viz., conduct unaccompanied by that anxious consideration of consequences which is called care. 4. Attempts are sometimes made to define negligence as a The purely objective fact involving no characteristic or essential "h^o^'^f mental attitude at aU. Negligence, it is said, is a failure to negligence, take care, and to take care means to take precautions against harm; or, putting the same argument in another way, negligence is unreasonable and imprudent conduct, and whether conduct deserves these epithets is a purely objective 2 (1856), 11 Ex. at p. 784. 24 GENERAL PKINCIPLES OF LIABILITY. [cHAP. I. question depending in no way on the state of mind of the actor. This, however, is a defective analysis of the con- ception. To cause harm by a failure to take precautions is not necessarily want of care or negligence, for it may be intentional wrongdoing or a mere accident. Which of these three things it is cannot be ascertained save by looking into the mind of the defendant in order to see what his mental attitude was towards the act and its consequences. To mix poison in food and leave it where it will probably be eaten by some one who thereby comes to his death is not neces- sarily a negligent act; for the result may have been intended ox it may have been a mere accident due to ignorance that the substance was poisonous. How can we tell whether it was wilful, negligent, or accidental, save by reference to the men- tal attitude of the doer? So also with the suggestion that negligence is unreasonable conduct, and therefore a purely objective fact. There is no purely objective test of reason- ableness. No man can be judged in this respect, save by reference to what he knew or foresaw, or would have known or foreseen had he been in his own heart sufhciently careful and anxious to do no harm to others. The plausibility of the objective theory of negligence comes from the fact that in respect of civil liability it is commonly a matter of indifference whether the defendant acted wilfully or merely negligently. He is equally liable in each case; there- fore there is no need to distinguish between these two forms of mens rea, or to inquire whether in fact the defendant did or did not intend the consequences of his act. So soon, how- ever, as the distinction between intention and negligence does become material in law, it becomes clear at the same time that each of them is essentially a subjective fact: for example, criminal liability usually depends on wrongful in- tent, as distinguished from negligence; so also do certain forms of civil liability, such as that Avhich arises from mis- representation. ^ 3 For a statement of the objective theory of negligence, see Sir F. Pollock's Law of Torts, pp. 446 — 451, 9th ed. SECT. 5] NEGLIGENCE. 25 -J. The duty of care A There is no negligence unless there T^« ^'"■^ is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely to others. " The ideas of negligence and duty are strictly correlative," says Bowen, L. J.,^ "and there is no such thing as negKgence in the abstract; negligence is simply neglect of some care which we are bound to exercise towards somebody." This duty of carefulness is not universal; it does not extend to all occasions, and all persons, and aU modes of activity. There are cases in which, although there is a duty not to cause harm intentionally, there is no correspond- ing duty to take care not to cause it accidentally. Thus, I must not deceive another to his own hurt by wilfully telling him lies, but I am commonly under no obligation to take care that the statements which I make to him are true. So a man may be under a duty of care tpiwards one person, and yet in the same matter and on the same occasion under no duty of care towards another. The occupier of premises is bound towards persons lawfully entering on them to take care that they are free from danger, but he owes no such duty to a trespasser. A consideration of the rules which determine the existence When a duty or absence of a duty of care in particular cases pertains to the *'*''® exists. detailed exposition of the law, and therefore to a later part of our inquiry, and not to such a discussion of the general prin- ciples of liability as we are at present concerned with. W© shall consider in later chapters, for example, what duty of care (if any) is imposed upon the owners or occupiers of dangerous premises, upon the owners or possessors of dan- gerous chattels, upon persons who make representations upon which other persons are intended to act, upon persons who * In the language of lawyers a synonyn of care is diligence, a remi- nisoenc© of the Latin opposition between dUigentia and negligentia. This, however, is an archaism of legal diction; in popular speech dili- gence is the opposite, not of negligence, but of idleness. 5 Thomas v. Q/uartermaine (1S87), ISQ. B. D. p. 694. See also Butler V. Vife Coal Co., (1912) A. C. p. 159: "Negligence is not a ground of liability unless the person whose conduct is impeached is under a duty of taking care; and whether there is such a duty in particular circum,'- stances, and how far it goes, are questions of law." 26 ^ GENERAL PRINCIPLES OB^ LIABILITY. [CHAP. I. issue defamatory statements, upon persons putting the criminal law in motion against others, upon persons keeping dangerous animals, and so forth. Negligence 6. Negligence and want of skill. It is commonly said of skill. that want of skill amounts to negligence. ^ Imperitia cul- pae adnumeratur,'^ said the Eomans. This is true in the sense that it is commonly a negligent act voluntarily to undertake the doing of any act which can be safely done only through the possession of special skill, unless the doer possesses or believes on reasonable grounds that he possesses the requisite skill. The negligence does not in reality con- sist in the lack of skill, but in undertaking the work without skill. No one is bound by law to be a skilful and competent driver of horses, but every one is bound not to drive horses- unless he is skilful and competent in that regard. The same principle applies to the lack of any other quali- fication for the safe conduct of an operation, such as know- ledge, sound judgment, sound health, physical strength, or the possession of any other requisite mental or bodily faculty . No man is to blame becatise fate has denied him good sense,. or a retentive memory, or a quick apprehension, or sound eyesight; these defects are in themselves mere misfortunes for which he is no more accountable in law than in justice; but if, lacking those qualities, and having reasonable means of knowing that he lacks them, he enters on activities which demand the possession of them, he is guilty of negligence and liable for damage so resulting. If, however, a person thus deficient in some attribute of the- ordinary and average man is placed without his own choice in some situation where the possession of that attribute is requisite for the avoidance of harm, he is not responsible as for negligence merely because the ordinary man could have avoided the accident. He must be judged with reference to his own capacities of mind and body, and if he does his best, he does .enough, even though a man better endowed 6 Heaven v. Pender (1883), 11 Q. B. D. p. 507, per Brett, 31. R. 7 D. 50, 17, 132. SECT. 6] -IHt; (STANDARD OF CAKE. 27 %vould have been bound to do much more. A blind man must not voluntarily do an act which can be safely done only by those \\ho have eyes to see, but if he has such action thrust upon him through no choice of his, he will not be judged as though he could see. § 6. The Standard of Care. 1. Care is a matter of degree. It is not sufficient, there- Care a fore, for the law to lay down merely that it is the duty of degree, persons to use care. It is nepessary to go further and to determine, not merely the existence of such a duty, but also the degree or amount of care which is obligatory; that is to say, to define the legal standard of due care. What then is this standard? 2. It is clear, in the first place, that the law does not re- Greatest quire the highest degree of care of which human nature is P^f^ible care ^ . i^ot required, capable. It does not require a man to refrain from an act merely bec-ause a certain amount of danger is caused by it. It does not insist that men shall so anxiously consider the interests of their fellows as never to expose them to any risk of harm however small. To drive horses down a crowded street is not in itself a negligent act, although accidents con- stantly- happen from such a cause. Nor is the use of fire- arms in itself an omission to use due care, notwithstanding- the accidental injuries which result therefrom. The risk of harm is so small in such cases that the laAV allows the danger to be knowingly created. To lay down any other rule would unreasonably restrict the beneficial activities of mankind foi' the sake of avoiding a remote and unlikely evil. 3. On the other hand, it is not sufficient that the defen- Care dant has acted in good faith to the best of his judgment and to best of belief, and has used as much care els he himself believed to defendant's ... , . . judgment and be required of him in the circumstances by reason and justice, belief not The question in every case is not whether the defendant, s^^"'™*- however honestly, thought his conduct sufficiently careful, but whether in fact it attained to the standard of due care established by law.^ 1 Vaurjlian v. Menlove (1837), 3 Bing. N. O. 468. 28 GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. Test of reasonable- ness. A question of fact. Reasonable 4. The decree or standard of care which the law requires care required . , . , . , , . , . „ , , and sufficient. IS that which IS reasonable in the circumstances oi the par- ticular case. 2 This obligation to use reasonable care is very commonly expressed by reference to the conduct of a reason- able man, or of an " ordinarily prudent man," meaning thereby a reasonably prudent man. " Negligence," says Alderson, B.,^ "is the omitting to do something that a reasonable man would do, or the doing something which a reasonable man would not do." "We ought," says Tindal, C.J.,* "to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe. . . . The care taken by a prudent man has always been the rule laid down." " The standard of duty," says Sir P. Pollock,^ " is not the foresight and caution which this or that particular man is capable of, but the foresight and caution of a prudent man — the average prudent man, or as our books rather affect to say, a reasonable man — standing in this or that man's shoes." 5. What amounts to reasonable care depends entirely on the circumstances of the particular case as known to the defendant whose conduct is the subject of inquiry. Whether in those circumstances, as so known to him, he used due care — whether he acted as a reasonably prudent man — is a mere question of fact as to which no legal rules can be laid down. It would seem clear, however, that for the proper determina- tion of this question of fact there are two chief matters for consideration . The first is the inagnitude of the risk to which the defendant exposes other persons by his action. The second is the importance of the object to be attained by the dangerous form of activity. The reasonableness of the de- fendant's conduct will depend upon the proportion wliich the risk bears to the object to be attained. To expose others to a risk of harm for a disproportionate object is unreason- able, whereas an equal risk for a better cause may be lawfully run without negligence. By running trains at the rate of 2 Ford V. L. # S. W. Mly. Co. (1»82), 2 F. & F. 730. 3 Blyth V. Birmiiif/ham Waterworks Co. (1856), 25 L. J. Ex. 212, p. 213. i Vaughan v. Ueiilore (1837), 3 Bing. N. C. 468, p. 475. ■' Law of Torts, p. 451, 9th ed. SECT. 6] THE STANDARD OF CARE. 29 fifty miles an hour, railway companies have caused many- fatal accidents which could quite easily have been avoided hj rmming at ten miles an hour . But this additional safety would be attained at too great a cost of public convenience, and therefore, in neglecting this precaution, the companies do not fall below the standard of reasonable care and are not. guilty of negligence.^ 6. The law does not recognise different standards of care Different or different degrees of negligence in different classes of cases, negligence The sole standard is the caxe that would be shown in the "°* circumstances by a reasonably careful man, and the sole form of negligence is a failure to use this amount of care. It is true, indeed, that this amount will be different in different cases, for a reasonable man will not show the same anxious care when handling an umbrella as when handling a loaded gun. But this is a different thing from recognising different legal standards of care; the test of negligence is the same in all cases.'' leooOTiiBed. 6 Ford V. L. # S. W. Rly. Co. (1862), 2 F. & F. 730. '' Nevertheless, in the case of Coggs v. Bernard (1704), 2 Ld. Raym. 909, an unfortuiiate attempt was made to Lntroduoe into English law the misunderstandings of the Roman law of negligence that were then re- ceived among the civilians, and the distinctions then suggested have been repeated from time to time in various judicial dicta and numerous text- books. According to this doctrine there are three different kinds or degrees of negligence — ordinary, gross, and slight. " Ordinary neglect," it is said in Chitty on Contracts (p. 458, 16th ed.), " has been defined to be the omission of that care which every man of common prudence and capable of governing a family takes of his own concerns ; gross (neglect to be the want of that care which every man of common sense, how inattentive soever, takes of his own property; and slight neglect to be the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods." There are no authorities which compel us to admit that distinctions so vague and impracticable in their nature, so unfounded in principle, and so clearly rooted in historical error as to the rules of Roman law, form any genuine part of the law of England. In Wason v. Brett (1843), 11 M. & W. p. 115, Rolfe, B., observed that he " could see no difference between negligence and gross negligence, that it was the same thing with the addition of a vituperative epithet," and this observation has been approved by Willes, J., in Grill V. Iron Screw Collier Co. (1866), L. R. 1 C. P. p. 612. In Eintony. Sibbin (1842), 2 Q. B. p. 661, Lord Denman says: "It may well be doubted whether between gross negligence and negligence merely, any intelligible distinction exists "j and in Austin v. Manchester, Sfc. Rly. Co. (1850), 10 O. B. p. 474, the remark is quoted by Cresswell, J., with approval. S«e also Pollock on Torts, p. 454, 9th ed. ; Street's Foundations of Legal Liability, Vol. I. 98. To the contrary effect, see Giblin v. MoMuUen 30 GENERAL PKINCIPLES OF LIABILITY. [cHAP. I. Burden of proving negligence. There must be reasonable evidence of negligence for a jury. § 7. The Proof of Negligence. 1. The burden of proving negligence is on the plaintiff who alleges it. When accidental harm is done, it is not for the doer to excuse himself by proving that the accident was inevitable and due to no negligence on his part; it is for the person who suffers the harm to prove afhrmatively that it wa« due to the negligence of him who caused it.^ 2. Unless the plaintiff produces reasonable evidence that the accident was caused by the defendant's negligence, there is no case to go to the jury, and it is the duty of the Judge to enter judgment for the defendant. Here, as elsewhere, the term reasonable evidence means such evidence as a reason- able jury might deem sufficient for proof. The pxeliminary question for the Judge is this: Is the evidence produced on behalf of the plaintiff (including the admissions of the defen- dant) of such Aveight that reasonable men (in the absence of, or leaving out of account, any evidence produced by the defendant to the contrary) might come to the conclusion that the accident was caused by the defendant's negligence? If so, the case must go to the jury; if not, judgment must be given for the defendant without the case being Submitted to the jury at all. In thus withdrawing the case from the jury the Judge does not substitute his own opinion as to the proof of negligence for their opinion ; he decides, -not that negligence has not been proved, but that no reasonable man or jury could think that it had been proved. The Judge may be of opinion that there was no negUgence, and yet be bound to leave the question to the jury, because it is one on which reasonable men might reasonably differ. (1868), L. B. 2 P. C. p. 336, per Lord Chelmsford; and Beven on Negli-, gence, Vol. I. Ch. 2. 1 Cotton V. Wood (I860.), 8 C. B. (N. S.) at p. 571, per Erie, C. J.:, " The plaintifE is not entitled to succeed unless there b© affirmative proof of negligence on the part of the defendajit. . . . Where it is a perfectly, even balance upon the evidence whether the injury complained of has resulted from the want of proper car© on the one side or on the othear, the party who founds his claim upon the imputation of negligence fails to establish his case." SECT. 7] THE PROOF OF NEGLIGENCE. 31 3. It is to be noticed that this question of reasonable evidence is to be decided not by weighing the evidence of the plaintiff against that of the defendant, but by disregarding altogether the evidence of the defendant, and by asking whether that of the plaintiff is, per se and apart from any cojitradiction, sufficient or insufficient to bring conviction to a reasonable mind. The task of weighing the evidence on one side against that on the other belongs exclusively to the jury, and the only control exercised over them is the power of the Court to order a new trial when the verdict is against the weight of evidence. Thus, in Dublin jRailwoti/ Co. v. Illustrative Slattery^ a widow sued for the death of her husband who g^jg^ce ^f had been run over by a train passing through a railway- negligence, station. The only evidence of negligence was the testimony of three witnesses (friends of the deceased) who swore that they did not heaj? any whistle from the approaching train. As against this, ten witnesses swore that they heard the train whistling, and the question was left to the jury, who found for the plaintiff. It was held by the House of Lords that the case was rightly left to the jury, there being reasonable e^'idenoe of negligence, and therefore that the verdict must stand. There was no doubt that, taking all the evidence for and against into account, the verdict was a perverse and dis- honest one, but in the circumstances of the particular case it was not open to the defendant to ask for a new trial on the ground that the verdict was against the weight of evidence, and the only possible contention on the part of the defendant was that there was no evidence on which the issue should have been left to the jury. 4. The case of Metropolitan Uly. Co. v. Jackson^ is in reality a decision not as to evidence of negligence, but as to remoteness of damage, a matter which will be dealt with later. The two questions are, however, closely connected; — indeed, in their ultimate analysis identical — and the judg- ment of Lord Cairns in this case is a classical authority on 2 (1878), 3 A. O. 1155. ' (1877), 3 A. O. 193. 32 GENERAL PEINCIPLES OF LIABILITY. [CHAP. I. the present matter:* " The Judge has a certain duty to dis- charge, and the jurors have another and a different duty. The Judge has to say whether any facts have been estab- lished by evidence from which negligence may he reasonably inferred; the jurors have to say whether from these facts, when submitted to them, negligence ought to he inferred. It is, in my opinion, of the greatest importance in the ad- ministration of justice that these separate functions ishould: be maintained, and should be maintained distinct. ... It would . . . place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever." " It has always," says Lord Blackburn in the same case,^ "been considered a ques- tion of law to be determined by the Judge, subject of course to review, whether there is evidence which, if it is believed, and the counter-evidence, if any, not believed, would estab- lish the facts in controversy. It is for the jury to say whether and how far the evidence is to be believed." 5. In Wdkelin v. London and S.W . Rly. Co.^ the dead body of the plaintiff's husband was found lying on the rail- way-Hue at a level crossing, having been run over by a train which carried a head-light but did not whistle as it approached the crossing. No evidence was produced as to how the deceased oame to be on the Kne. It was held by the House of Lords that there was no case to go to a jury; that even assuming that there was sufficient evidence of negligence (viz., the failure to whistle), there was no evidence that this was the cause of the accident. With this case may be com- pared Smith V. South Eastern Ely. Co.,'' in which the facts were practically the same, except that the gatekeeper whose duty and custom it was to signal with a light to trains ap- proaching the crossing neglected to do so, and the deceased, believing that no train was approaching, attempted to cross the line and met his death. It was held by the Court of 4 (1877), 3 A. O. p. 197. 5 /j^. p. 207. 6 (1886), 12 A. C. 41. 7 (1896) 1 Q. B. 178. SECT. 7J THK PROOF OF NKGLIGENCE. 33 Appeal that there was evidence of negligence to go to a jury, because the neglect of the gatekeeper might possibly have caused the accident by misleading the deceased. In Manzoni V. Douglas fi following Hammack v. White,^ it was held by the Court of Appeal that the mere fact that a horse ridden or driven by the defendant became unmanageable and ran away with him, so causing injury to the plaintiff, was not sufficient evidence of negligence to go to a jury. In Crafter v. Metro- politan Rly. Co.^^ it was held by the Court of Common Pleas that the fact of a passenger slipping on the brass edging of the steps leading down to the platform of the defendants' railway-station was no evidence that the company was guilty of negligence in having its premises unsafe for passengers. In Cotton V. Wood^'^ the plaintiff's wife crossed in front of the defendant's omnibus, but immediately ran back again, because startled by another carriage, and she was then run over by the omnibus. The driver of the omnibus had seen her pass the first time, and then turned round to speak to the conductor, and therefore did not see her return. It was held that there was no evidence of negligence to go to a jurj-. The driver had no reason to anticipate or guard against the immediate return of a foot passenger who had already safely crossed in front of the horses. ^^ § 8. Res ipsa loquitur. I . The rule that it is for the plaintiff to prove negligence, Ses ipsa and not for the defendant to disprove it, is in some cases one "*"' "'' of considerable hardship to the plaintiff; because it may be that the true cause of the accident lies solely within the know- ledge of the defendant who caused it . The plaintiff can prove the accident, but he cannot prove how it happened so as to 8 (1880), 6 Q. B. D. 145. ^ (18«2), 11 O. B. (N. S.) 588. 10 (1868), L. R. 1 C. P. 300. n (1860), 8 C. B. (N. S.) 568. 12 See also MoBowall v. G. W. My. Co., (1903) 2 K. B. 331 ; Brurij \ N E Rly. Co., (1901) 2 K. B. 322; Wing v. London General Omnihub Co., (1909) 2 K. B. 652. s. 3 34 GENERAL PRINCIPLES OF LIABILITY. [cHAP. I. General principle. Illustrations. show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the rule of Bes ipsa loquitur. There are many cases in which the acci- dent speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to the jury, and it is for the defendant, if he can, to persuade the jury that the accident arose through no negligence of his. The maxim Res ipsa loquitur applies whenever it is so improbable that such an accident would have happened with- out the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused. " There must be reasonable evidence of negligence," it is said in Scott V. London Docks Co.,'^ "but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." There is not, indeed, even in these cases any legal presump- tion of negligence, so that the legal burden of disproving it lies on the defendant. But the plaintiff by proving the accident has adduced reasonable evidence, on which the jurors may, if they think fit, find a verdict for him. 2. Thus, in Byrne v. Boodle^ a barrel of flour roUed out of an open doorway on the upper floor of the defendant's ware- house, and fell upon the plaintiff, a passer-by in the street below. It was held that this was sufficient evidence of negli- gence to go to a jury, without any evidence as to the manner in which the accident happened. For barrels, if properly handled, do not commonly behave in this fashion; and the improbability of such an accident happening without negli- gence was sufficient to justify a jury in finding that negli- gence was the cause of it. The same principle has been applied in cases in which merchandise, being lowered in a 1 (1865), 3 H. & 0. at p. 601. 2 (18B3), 2 H. & O. 722. SECT. 8] RES IPSA LOQUITUR. 35 crane, has slipped out of its fastenings and fallen upon the plaintiff ; 3 in which a brick has fallen from a railway viaduct upon a person in the highway below;* in which a collision has occurred between two trains belonging to the same com- pany ;5 in which the door of a railway carriage flies open on being pressed from within;^ in which a packing-case lean- ing against a wall has fallen over from some unexplained cause and injured a passer-by.'' So the mere fact that a chattel bailed has been lost, destroyed, or damaged while in the possession of the bailee is in general sufficient evidence of negligence in the custody or use of it .® § 9. Contributory Negligence. 1 . It often happens that hai-m is suffered by a plaintiff not Contributory solely through the negligence of the defendant, but also plaintiff a through that of the plaintiff himself. If he had used due s°°^ defence, care for his own safety, he would have come to no harm notwithstanding the negligence of the defendant. In such a case the plaintiff is said to be guilty of contributory Jiegli- gence, and is in general debarred from any action. For it is commonly the duty of every man to look after himself, and for injuries which he could have avoided by the use of care he will seek redress from the law in vain. 3 Scott V. London Docks Co. (1865), 3 H. & 0. 596. * Kearney v. London, Brighton, #c. My. Co. (1871), L. E. 6 Q. B. 7.59. 5 Skinner v. L. B. # S. C. Ely. Co. (1850), 5 Ex. 787. 6 Gee V. Metropolitan Ely. Co. (1873), L. B. 8 Q. B. 161. 7 Briggs v. Oliver (1866), 4 H. & 0. 403. In Welfare \. London $• Brighton Ely. Co., L. R. 4 Q. B. 693, the plaintiff was held rightly non- suited when he proved merely that he was lawfully in the defendants' railway station, and that a roll of zinc, which was being used in repairing the roof, fell through a hole in the roof and injured him. For in this case there was no proof that the person who caused the mischief was a servant of the company, for whose negligence the company could be held liable, and the nature of his employment was such that he could not be presumed to be their servant. 8 Phipps V. New Olaridge Hotel Co. (1906), 22 T. L. E. 49; Bullen V Swan Electric Engraving Co. (1907), 23 T. L. R. 258; Joseph Travers 4 Sons V. Cooper, (1915) 1 K. B. 73. 3(2) 36 GENERAL PRINCIPLES OF LIABILITY. [ciIAP. I. Rational basis of the rule discussed. Thus, in Butter field v. Forrester'^ the defendant wrong- fully obstructed a street by placing a pole across it, and the plaintiff rode along the street in the evening, when it was getting dusk, but while there was still sufficient light to notice the obstruction, and coming into collision with the pole he was thrown from his horse and injured. It was held that he had no cause of action, as he could, notwithstanding the defendant's negligence, have avoided the accident by the use of due cai-e. Lord EUenborough says: " One pCTSon being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defen- dant, and no want of ordinary care to avoid it on the part of the plaintiff." 2 . The rational basis of this rule of contributory negligence has been the subject of much debate. Attempts have some- times been made to exhibit it as merely a special application of the rule as to remoteness of damage. ^ An accident which would not have resulted from the defendant's negligence had not the plaintiff been negligent also is, it is said, too remote to be actionable; for every man has a right to assume that others will use due care for their own preservation. Thus, Bowen, L. J., in Thomas v. Quartermaine^ says of the doc- trine of contributory negligence that " it rests upon the view that though the defendant has in fact been negligent, yet the plaintiff has by his own carelessness severed the causal connection between the defendant's negligence and the acci- dent which has occurred; and that the defendant's negligence accordingly is not the true proximate cause of the injury." This explanation, however, cannot be regarded as sufficient, for it leads necessarily to the inconsistent conclusion that the same accident may be at the same time too remote and not too remote a result of the defendant's negligence. Thus, if the plaintiff drives a conveyance and has a friend with him at the time, and he and his friend are both injured by a collision 1 (1809), 11 Bast, 60. For other examples, see Flower v. Adam (1810), 2 Taunt. 314; Shelton v. L. # N. W. My. Co. (1867), L. R. 2 C. P. 631. 2 As to this, see injra, o. 36. 3 (1887), 18 Q. B. D. at p. 697. SECT. 9] CONTRIBUTORY NEGLIGENCE. ^7 which happens through the combined negligence of the plain- tiff and the defendant, the plaintiff has no cause of action against the defendant, but his friend has. Yet if the damage to the plaintiff was too remote to be actionable, how can the damage to his friend be anv less remote? So also if the con- veyance is damaged by the collision, the question whether the defendant is liable for this depends on whether the con- veyance belongs to the plaintiff or is merely hired by him. But what bearing has this distinction on the question of re- moteness? So if the defendant negligently collides with the conversance in which the plaintiff is being driven, and the negligence of the driver of that conveyance contributed to the accident, the liability of the defendajit depends on whether that driver was or was not the servant of the plaintiff. But how can this fact, unknown to the defendant at the time of the accident, determine in any way the remoteness of the damage? The truth of the matter seems to be that the rule of contri- butory negligence is explainable only as a special application of the general principle; In pari delicto potior est conditio defendentis. When both parties are equally to blame, neither can hold the other liable. It is expedient that men should be induced to take care of themselves, instead of trusting to the vigilance of others; and to secure this end the law deprives them of any remedy for accidents which they might have avoided by due care. From motives of public policy the law refuses to help those who might have helped themselves: Vigilantibus non dormientihus jura suhveniunt. " The plaintiff," says Lord Halsbury in Wakelin v. London and S. W. Rly. Co.,^ "may indeed establish that the event has occurred through the joint negligence of both; but if that is the state of the evidence, the plaintiff fails, because In pari delicto potior est conditio defendentis." 3. The rule of contributory negligence determines not Rule merely the liability of the defendant for a negligent wrong, unintended but also his liability for the unintended consequences of an consequences wrongs. 1 (1886), 12 A. C. at p. 45. 38 GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. Plaintiff must be under a legal duty of care. intentional wrong. It must not be supposed that in all cases in wliich a defendant is entitled to plead the contributory, negligence of the plaintiff ho is himself guilty merely of negligence. He may be guilty of wilful wrongdoing, pro- vided only that the consequence for which the plaintiff seeks to hold him liable was an unintended one. Thus, in the case already cited of Butterfield v. Forrester,^ the defendant who successfully pleaded contributor}- negligence was sued for wilfully obstructing the public highway. It is the legal duty of every man to use due care for his own preservation, not merely against the negligence of other persons, but also against the unintended results of other persons' wilful wrong- doing. But as to intended consequences the defence of contributory negligence is irrelevant. 4. The mere fact that by care the plaintiff might have avoided the accident is no defence, if under the circumstances of the case his failure to use that care did not amount to culiDable negligence — i.e., the breach of a legal duty to use care for his own safety. Thus, in many instances the plaintiff has a right to assume that there is no danger, and is under no duty to take any care to ascertain whether any exists. He is not bound to anticipate and provide for the possible negli- gence of the defendant, but is entitled to take it for granted that the defendant has done all things rightly and care- fully . If an accident happens in such a case, the defendant will not be heard to say that the plaintiff might have avoided it by care, because no such care was obligatory on him. Thus, in Gee v. Metropolitan Rly. Co.^ the plaintiff was a passenger on the defendants' railway, and leaned against the door of the carriage with the intention of looking out of the window. The door had been negligently left unfastened by the defendants' servants, and the plaintiff' fell out of the train. It was held that the defendants were liable; for although the plaintiff could easily have avoided the accident hj the simple precaution of examining the door-handle, he was not bound to take that precaution, but was entitled to (1809), U East, 60. 6 (1873), L. E. 8 Q. B. 161. SECT. 9] CONTKIBUrORY NEGLIGENCE. 39 reh- on the carefulness of the defendants. So also if the defendant keeps a coal-plate or the covering' of a cellar- opening in the pavement, the plaintiff is entitled to step upon it in reliance on the due fulfilment of the defendant's duty to keep it securely fastened, and is not bound to ascertain whether it is safe.' So also if the plaintiff has been misled by the defendant's express or implied representation that there is no danger. ^ So also a plaintiff is not necessarily guilty of contribu- tors negligence simply because he has knowledge of a danger -which the defendant has wrongfully created, but chooses to run the risk rather than to forego the exercise of his liberty of action. ^ Similarly if the plaintiff is invited or ordered by the defendant to run the risk in question he cannot be held guilty of contributory negligence in doing so. 10 Moreover, in those cases in which the plaintiff is perplexed or agitated by being exposed to danger by the wrongful act of the defendant, it is sufficient if he shows as much judgment and self-control in attempting to avoid that danger as may bo reasonably expected of him in such circumstances. ^^ o . When the plaintiff is a child or other person under some Contributory form of personal incapacity, it is sufficient if he shows as "f ohUdren much care as a person of that kind may reasonably be expected to show; and he will not lose his remedy merely because a person of full capacity might by using greater care or skill have avoided the accident. This rule is sometimes expressed in the form that the contributory negligence of a child is no defence. But this is much too absolute a statement. The question in each case is simply whether, having regard to the 7 See Gtvinnell v. Samer (1875), L. E. 10 O. P. 658. 8 Bridges v. North London My'. Co. (1874), L. E. 7 H. L. 213; iV. E. My. Co. V. JVanless (1874), L. E. 7 H. L. 12. 8 CUyards v. Dethick (1848), 12 Q. B. 439 ; The Highland Loch, (1912) A- C. 312. See s. 13 (5), infra. , 10 See, for example, Yarmouth v. France "(1889), 19 Q. E. D. 647. Infra, s. 13 (5). " The By well Castle (1879), 4 P. D. 219; The Tasmania (1890), 15 A. O. at p. 226, per Lord Hersehell. 'iO GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. ago of the plaintiff, his conduct amounted to culpable negli- gence or not. 12 Thus, in Lynch v. Nurdin^^ the defendant negligently left his horse and cart unattended in the street, and the plaintiff, aged seven, climbed into it, while another boj' made the horse move on, and so caused the plaintiff to fall out and suffer injuries. It was held that the defendant was liable. So in Harrold v. Watney^^ the defendant occupied land ad- joining the highway and surrounded by a fence which was rotten and dangerous, and therefore a nuisance to the high- way. The plaintiff, a boy aged four, climbed upon the fence in order to look over it, and the fence fell with him and injured him, and he was held to have a good cause of action against the defendant.!^ ^'^ 6. The burden of proving the contributory negligence of the plaintiff lies upon the defendant. i'' It is not for the plaintiff to prove as part of his own case that he used due care, but for the defendant to prove that the plaintiff did not. And this is so notwithstanding the fact that under the old system of pleading the defence of contributory negligence was raised not by a special plea, but under the general issue. 7. Nevertheless, if on the undisputed facts of the case the from jury on Only rational inference is that the plaintiff was guiltj' of contributory negligence — so that a verdict to the contrary would be set aside as against the weight of evidence — it is the duty of the Judge to withdraw the case from the jur}' and give judgment for the defendant. "It is, I think," says Lord Coleridge in Dublin Baihvay Co. v. Slattery,^^ Burden of proof of contributory- negligence on defendant. Case may be withdrawn from jury oi issue of con- tributory negligence. 12 Plantza v. Glasgow Corporation (1910), S. C. 786, Ct. of Sess. " (1841), 1 Q. B. 29. w (1898) 2 Q. B. 320. 15 See also Jewson v. Gatti (1886), 2 T. L. R. 441. 16 The eases of Hughes v. Macfie (1863), 2 H. & C. 744, and Mangan V. AttertoH (1866), L. R. 1 Ex. 239, must, it seems, be taken to have been in principle wrongly decided. See Clark v. Chambers (1878), 3 Q. B. D. pp. 333 and 339. " See Wakelin v. L. # S. W. Sly. Co. (1886), 12 A. C. at p. An, -per Lord Watson, adopting the opinion expressed on this point by Lord Hatherley and Lord Penzance in Dublin, %e. Mly. Co. v. 8latte^-y (1878), 3 A. C. pp. 1169, 1180. To the contrary effect, see Bavey v. L. & S. W. Sly. Co. (1883), 12 Q. B. D. p. 71, per Brett, M. R. 18 (1878), 3 A. C. at p. 1195. SKCT. 9] CONTRIBUTORY NEGLIGENCE. -11 " the duty of the Judge to withdraw the case from the jury if by the plaintiff's own evidence at the end of the plaintiff's case, or by the unanswered and undisputed evidence on both sides at the end of the whole case, it is proved either that there was no negligence of the defendants which caused the injury or that there was negligence of the plaintiff which did." If, however, there is any dispute as to the facts from which the inference of contributory negligence is to be drawn, the issue must be left to the jury, whatever may be the pre- ponderance of the weight of evidence in favour of the defendant. The remedy of the plaintiff in case of a perverse verdict in these circumstances is an application for a new trial.19 § 10. The Rule in Davies v. Mann. 1 . We have now to consider a very important qualification Cavies v. of the general principle that the contributory negligence of the plaintiff is a good defence. This qualification may be conveniently termed the rule in Davies v. Mcmn,^ this being the first case in which it was recognised. The facts of the ease were that the plaintiff negligently left his donkey, with its legs tied, in the highway, and the defendant subsequently came past in his waggon and negligently ran over the donkey. It was held that the defendant was liable — notwithstanding the fact that the accident would not have happened but for the contributory negligence of the plaintiff — on the ground that the defendant had a sufficient opportunity of avoiding by the use of reasonable care the danger so created by the plaintiff's negligence. "Although the ass may have been wrongfully there, stiU the defendant was bound to go along the road at such a pace as would be likely to prevent mis- chief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying 19 As to the whole matter, see Skelton v. X. (?• N. W. Rly. Co. (1867), L. R. 2 O. P. 631; Dublin, 4-0. My. Co. v. Slattery (1878), 3 A. C. 1155; Wakelin v. L. # fi. W. RU/. Co. (l'&86), 12 A. C. 41 ; Coylc v. Gt. N. Rly. Co. (1887), Ir. B. 20 C. L. 409. 1 (1842), 10 M. & W. 546. 42 GJENEJiAL PRINCIPLES OF LIABILITY. [CHAP. I. Rad ley's case. Defective formulation of the rule. asleejD there, or the purposely running against a carriage going on the wrong side of the road."^ The rule in Davies v. Mann was approved and applied by the House of Lords in Radley v. London d; N . W. Rly. Co.^ The plaintiffs negligently left upon a siding of the defen- dants' railway a number of trucks, one of which contained another disabled truck. The joint height of these two trucks exceeded that of a bridge which crossed the siding and which was the property of the plaintiffs. The plaintiffs knew that the defendants would shortly deliver more trucks upon the siding, which might drive the loaded truck against the bridge and damage it; and this result actually happened. The de- fendants' engine-driver felt the resistance of the loaded truck pressing against the bridge, but instead of going to see what the cause was, he forced the train forward and broke down the bridge. It was held that the defendants were liable for the accident, notwithstanding the prior and contributory negligence of the plaintiffs. 2. The usual mode of formulating the rule in Davies v. Mann is to say that the defendant is liable if he could, not- withstanding the contributory negligence of the plaintiff, have avoided the accident by the use of reasonable care. "Though the plaintiff," says Lord Penzance,* "may liave 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 dili- gence have avoided the mischief which happened, the plaintiff's negligence will not excuse him." This mode of statement, however, is clearly elliptical and insufficient as a complete formulation of the principle. Read literally it is not merely a limitation of the general rule as to contribu- tor}' negligence, but the complete negation of it. For exy hypothesi in all cases of contributory negligence the defen- dant has been guilty of negligence which caused the accident; 2 10 M. & W. p. 549. 3 (1876), 1 A. O. 754. See also Tuff v. Wrirman (1858), 5 C. B. (N. S.) 573. * Sadleij V. London 4- N. W. Rly. Go. (1876), 1 A. 0. at p. 759. SECT. lO] THE RULE IN DAVIES V. MANN. 43 thereiore in all cases he could by the exercise of care have avoided the accident; and therefore (reading the above pro- position literally) he is liable notwithstanding the contribu- tory negligence of the plaintiff.^ Clearly, therefore, some- thing more than a mere opportunity of avoiding the accident by reasonable cai-o is required in order to bring the rule in Davies v. Maiut into operation. It is not easy, however, to state either on principle or authority precisely what this additional element is. 3 . It would seem that the true test is the existence of the The true last opportunity of avoiding tlie accident; that when an opportunity, accident happens through the combined negligence of plain- tiff and defendant, the defendant is liable if, but only if, ho had a later opportunity than the plaintiff of avoiding it by reasonable care. Thus, Sir Frederick Pollock says of the plaintiff in such cases that "he is not to lose his remedy merely because he has been negligent at some stage of the business, though without that negligence the subsequent events might not or would not have happened; but only if he has been negligent in the final stage and at the decisive point of the event, so that the mischief, as and when it happens, is immediately due to his own want of care and not to the defendant' s."'^ In other words, although both plaintiff and defendant may have been guilty of negligence causing the accident, yet if at some point of time before the accident the plaintiff has ceased to have any power to prevent it — the issue having passed beyond his control — and never- theless the defendant still retains the power of preventing it bj" due care, the whole responsibility passes to the defendant . Since he alone has now the power, he alone has now the duty, of preventing the accident; and the prior negligence of the plaintiff becomes irrelevant and immaterial. There are, therefore, three classes of cases to be distin- , guished: — (a) The opportunities of the plaintiff and defendant may 5 See the remarks of Butt, J., in The Vera Cruz (1884), 9 P. D. p. 93. 6 The Law of Torts, p. 472, 9th ed. 44 (JENEKAL PRINCIPLES OF LIABILITY. [CHAP. I. Distinction between direct and indirect cause. Rule of contributory negligence formulated. have been coincident in time: as when two persons driving in opposite directions in the middle of a road at night and without lights come into collision with each other. In sucli^ a case there is no liability on either side. An action by either may be met by a plea of contributory negligence.^ (b) The opportunity of the plaintiff may be later than that of the defendant. In this case also there is no liability: 'as in Butter field v. Forrester^ itself, where the negligence of the plaintiff in riding against the obstruction was later in date than the negligence of the defendant in placing it there. (c) The opportunity of the defendant may be later than that of the plaintiff. In this case the general rule of contri- butory negligence is excluded by the rule in Davies v. Mann. The negligence of the plaintiff in leaving his donkey in the road was prior to the negligence of the defendant in driving over it, and therefore was no bar to the action. So in Radley's oase^ the last opportunity of avoiding the accident was with the defendants, and they were held liable accordingly . 4. This being so, the rule of contributory negligence is frequently and correctly expressed by drawing a distinction between the direct and the indirect cause of the accident. The contributory negligence of the plaintiff is a defence if it is a direct cause of the accident; but it is no defence if it is merely an indirect cause, the negligence of the defendant being the direct cause. An indirect cause means a cause more remote in time than the negligence of the other party. i" 5. Accepting this interpretation of the rule in Davies v. Mann, the law as to the defence of contributory negligence may be formulated as follows: — When an accident happens ■' Sec The Beruina (1887), 12 P. D. at p. 88, per Lindlej', L. J. 8 (1809), 11 Bast, 60. 9 (1876), 1 A. O. 754. 10 Tuff V. Warman (1857), 2 C. B. (K". S.) 740; The BeniUm (1887), 12 P. D. at p. 61, per Lord Esher. Sometimes the term proximate cause is substituted for direct cause (The Beruina, 12 P. D. at p. 88, per Lindlcy, L. J.), but this is objectionable because the same torm is used in a different sense in connection with the rule of remoteness of damage. Sir Frederick Pollock suggests the term decisive cause: Torts, p. 477, 9th ed. SECT. Uj CONTKIUUTORY NEGL1G1:NCE. 45 through the combined negligence of tivo persons, he alone is liable to the other who had the last opportunity^ of avoid- ing the accident by reasonable careM § 11. Contributory Negligence of Plaintiff's Servants and Agents. 1 . The contributory negligence of a servant of the plain- Contributory .jv> . 1 1 (. -1 T 1 negligence of till IS a good defence, m the same cases and to the same plaintiff's extent as that of the plaintiff himself, whenever the plaintiff servants. would have been responsible for that negligence of his servant had harm ensued from it. In other words, the rule that the negligence of a servant in the course of his employment is imputed to his master is applicable when the master is a plaintiff no less than when he is a defendant. 2 Presumably the same principle applies to other forms of vicarious Kabilitj', such as that of a husband for the negli- gence of his wife. "Individuals," says Lord Watson, "who are injured without being personally negligent are neverthe- less 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. "^ 3. The contributory negligence of an independent con- Contributory I. 1 1 • • ec n 1 1 • negligence of tractor or other agent of the piaintiir tor whom he is not independent responsible, on the other hand, is no bar to the plaintiff's contractors. action. If a cab hired by the plaintiff comes into collision with another vehicle by the negligence of both drivers, and the plaintiff is hurt, he can recover damages not only from his own driver, but also from the other. It was for some time, 11 Although thia principle may in general do substantial justice, it will probably produce in certain clas3e3 of cases results of an arbitrary and unreasonable nature. In former editions of this book I endeavoured so to formulate the rule as to avoid such results. Further consideration, however, has led me to abandon any such attempt. At the best, the rule of contributory negligence is but a rough and ready method of doing iuatioe as between peorsoms both of whom are to blame, and it does nob seem possible to establish any rule which is satisfactory in all its appli- cations. 1 The Bernina (1888), 13 A. C. p. 16. 46 GENERAL PRINCIPLES OF LIABILITY. [CIIAP Children in charge of adults. indeed, believed on the authority o£ Thorogood v. Bryan^ that this was not so, and that the negligence of the driver of a vehicle was imputed b}' law to the passenger in such sort that the passenger lost his remedy against third persons. This unreasonable doctrine was overruled by the House of Lords in The Bernina.^ 4. In Waite v. North Eastern Ely. Co A it was held that a child was disentitled to sue for personal injuries caused b}- the negligence of a railway company, because of the con- tributory negligence of the adult in whose charge the child was at the time of the accident, both child and adult being passengers on the defendants' railway. This case was not expressly overruled by The Bernina, and was even referred to by Lords Watson and Herschell without express dis- approval. It is submitted, however, that Lord Bramwell's opinion is correct — viz., that this case is indistinguishable from Thorogood v. Bryan, and must fall along with it. If the decision is based on the contention that the company con- tracted with the adult to accept the child as a passenger only on condition that due care should be taken of it by the adult, the answer is that A cannot obtain by contract with B a right to do negligent harm to C. The fact, however, that the child is in the charge of an adult may in certain cases exempt the defendant from a duty which would otherwise exist of care toward the child — the defendant being entitled to assume that the child will be duly protected by its adult guardian, and therefore is not in danger. In other words, the guardianship of an adult can never excuse the negligence of the defendant towards the child, but it may disprove the existence of any such negligence. Where hoth ships to blame, § 12. Contributory Negligence and Collisions at Sea. 1. The foregoing rules as to contributory negligence are subject to important modifications in their application to ^ (1849), 8 C. B. 115. * (1858), E. B. & E. 719. 3 (1888), 13 A. C. 1. degrees ( fault. SECT. 12] CONTRIBUTORY NEGLIGENCE AT SEA. "^^ collisions at soa. The general rule of maritime law is that 'l?^^*/. wnen a collision between two ships is caused by the fault proportion to of both of them, each is liable for a certain proportion of tbo desrreesof damage suffered by the other. The remainder of the damage so suffered lies where it falls. This division is made in the same proportions as those in which the vessels are found to be respectively in fault. The greater the degree of fault, the greater the share of liability. If, however, it is not possible to establish different degrees of fault, the liability is apportioned equally. 2. The reason for this rule is that since both parties are Comparison in fault both should suffer, and to this end the damages common law. should be apportioned between them. This principle is probably a nearer approximation to ideal justice than the rule of the common law, which in such a case deprives both parties of an} remedy at all, and allows the whole of the loss to lie where it falls. By the maritime rule no one can cause loss to another by negligence without having to pay for it ; neither can he suffer loss by his own negligence with- out having to pay for it. He has to make good a fair pro- portion of the loss which he has brought upon the other, and he has to bear a fair proportion of the loss which he has brought upon himself. But by the common law a defendant may by his negligence cause serious damage to the plaintiff, and may suffer none himself, and may yet go free because of some contributory negligence on the part of the unfortunate plaintiff', who has done harm to no one but himself .^ 3 . The principle of maritime law above stated is established History of for the first time by the Maritime Conventions Act, 1911.- timeConven- Prior to the passing of this Act the matter was governed tionsAct. by the principle long since established in the Courts of 1 See the criticism of the common law rule by Lindley, L. J., in The Bernina, 12 P. D. p. 88. 2 1 & 2 G«o. V. c. 57, 3. 1: "Where, by the fault of two or more vessels damao^ or loss is caused to one or more of those vessels, to their •cargoes or freight, or to any property on board, the liability to make o-ood the damage or loss shall be in proportion to the degree in which each vessel was in fault: Provided, that if, having regard to all the cir- cumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally." 48 GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. Admiralty, in accordance with which the damage was always divided equally between the two vessels in fault, irrespective of any difference in the degrees of fault attributable to those vessels. In The Milan^ this rule was laid down as follows: " Bj' the law of the Admiralty, as it is called, if the owner of one ship brings an action against the owner of another ship for damage done by collision, and both ships have been to blame, the party proceeding recovers only a moiety of his damage; if there is a cross-action the damages are divided and each party recovers half his own loss." Before the Judicature Act, 1873, this Admiralty rule applied only in the Courts of Admiralty; a collision case in the Courts of common law was governed by the ordinary law of contribu- tory negligence. By the Act last mentioned this conflict of law was abolished, and it was provided that the Admiralty rule should apply in all Courts "in any cause or proceeding for damages arising out of a collision between two ships."* 4. The rule as to division of liability applies to claims by the owners of cargoes lost by collision as well as to claims by the shipowners themselves. When both ships are to blame the owners of the cargo in one ship could not by the former Admiralty rule recover more than one-half of their loss from the owners of the other ehip,^ and cannot under the Maritime Conventions Act recover from the owners of that other ship more than such part of their loss as is proportionate to the degree in which it was to blame for the collision.^ 5. The rule as to division of liability does not apply as between an innocent ship and two other ships by whose com- ships m fault, bijjgd fault the innocent ship has been injured. In such a case the innocent ship can recover the whole of its loss from either of the ships in fault.'' The damages so paid by either of the ships is, as between these ships, apportionable in pro- portion to the degrees of their negligence.* Same rule applies to loss of cargo. Claim of an irmocent ship a^fainst two 3 (1861), Lush, at p. 398. * Judicature Act, 1873, s. 25, sub-s. 9. This provision is now super- seded by the Maritime Oonventions Act, 1911; see s. 9. 5 The Drumlanrig, (1911) A. O. 16. 6 Maritime Conventions Act, 1911, s. 1; The Umona, (1914) P. 141. ' The Devonshire, (1912) A. O. 634. s The Cairnbahn, (1914) P. 25. SECT. 12] CONTEIBUTOEY NEGLIGENCE AT SEA. 49 6 . The rule as , to division of liability does not apply to ^°™ °* 1'*^ damages for loss of life or personal injuries suffered by injuries persons on board ship in collisions due to the fault of both g^JJia^^^ vessels. Before the passing of the Maritime Conventions Act, 1911, liability in this class of cases was governed by the ordinary law.^ By section 2 of that Act, however, it is now provided that where loss of life or personal injuries are suffered by any person on board a vessel owing to the fault of that vessel and of any other vessel or vessels the liability of the owners of those vessels is joint and several. That is to say, each of the vessels is liable for the whole of the loss in the same manner as in the case of joint torts at common law. In such cases, however, it is provided by sec- tion 3 of the Act that there shall be a right of contribution between the owners of the vessels in proportion to the respec- tive degrees of fault, so that if the owners of one vesSel pay damages which exceed the proportion in which that vessel was in fault, they may recover the excess from the owners of the other vessel. 7 . The period of limitation of claims in respect of damage Limitation to a vessel or her cargo, or in respect of loss of life or per- ° actions, sonal injuries suffered by any person on board a vessel, caused by the fault of any other vessel, is two years. i" The period of limitation for the enforcement of the right of con- tribution above referred to, in cases of loss of life or personal injuries, is one year from the date of payment .^i But these periods may be extended by the Court in certain circum- stances. ^^ 8. Notwithstanding the general principle of division of The rule in loss, it was settled before the passing of the Maritime Con- UaM^ "' ventions Act, 1911, that the rule in Davies v. Mann^^ applied applicable to to collisions at sea no less than to collisions on land. The sea. Admiralty rule that the loss is divided when both ships are to blame applied only when the circumstances were such that at common law neither party could recover anything 9 The Bernina (1888), 13 A. O. 1. 1" Maritime Conventions Act, 1911, 3. 8. 11 Ibid. 12 Ibid. 1' Supra, a. 10. s. 4 50 GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. Abolition of statutory- presumption of fault. from the other. Davies v. Mann excluded the Admiralty rule that the loss was to be divided, just as it excludes the common-law rule that the loss is to lie where it falls. Thus, in The Sans Fareil}^ a sailing ship, the East Lothian, being towed down the Channel at night, met the Channel fleet consisting of thirty vessels proceeding in four parallel lines. The ship improperly, in breach of the rules of good seamanship, attempted to cross in front of the squadron, and was run down and sunk by the battleship Sans Pareit. The navigating officer of the Sans Pareil saw the lights of the tug, but negligently failed to notice those of the ship, and after porting his helm so as to pass clear of the tug, starboarded and ran into the ship. Both vessels were there- fore to blame; yet it was held by the Court of Appeal that the owner of the East Lothian was entitled to full damages, and not merely to half; for, notwithstanding the prior fault of that vessel in attempting to cross the line, the Sans Pareil had a clear subsequent opportunity (which the East Lothian then had not) of avoiding the collision. The fault of the battleship was therefore the direct, and that of the East Lothian merely the indirect, cause of the accident. ^^ The Maritime Conventions Act, 1911, contains no express provisions on this point, but it may be presumed that this enactment does not alter the law in this respect. Probably the new rule that liability is to be proportionate to the degree of fault of the vessels concerned is to be applied onl}' in those cases to which the former principle of equal division of liability was applicable. 9. Before the passing of the Maritime Conventions Act, 1911, the law as to liability for collision was complicated by the provisions of section 419 (4) of the Merchant Shipping Act, 1894, by which a conclusive presumption of fault con- tributing to the collision was established as against vessels found guilty of any breach of the Collision Regulations. ^^ 1* (1900) P. 267. 15 See also The Margaret (1884), 9 A. C. 873; The Monte Rosa, (1893) P. 23; The Hero, (1911) P. 128. 16 See The Khefiive (1,880), 5 A. O. 876; The Fanny M. Carvill (1875) 13 A. O. 455 n. SECT. 13] VOLENTI NON FIT INJURIA. 51 This enactment is now repealed, and the presumption o£ fault abolished. 1'^ § 13. Volenti non fit injuria. 1 . No act is actionable as a tort at the suit of any person Consent as who has expressly or impliedly assented to it. Volenti non cMUiabflity. fit injuria. No man can enforce a right which he has volun- tarily waived or abandoned. This maxim has a double application. It applies, in the first place, to intentional acts which would otherwise be tortious: consent, for example, to an entry on land which would otherwise be a trespass, or con- sent to physical harm which would otherwise be an assault, as in the case of a boxing match or a surgical operation. The maxim applies, in the second place, to consent to run the risk of accidental harm which would otherwise be actionable as due to the negligence of him who caused it. Consent in this case is the agreement of the plaintiff, express or implied, to exempt the defendant from the duty of care which he otherwise would have owed. Thus, a master is under a legal duty to his servant to take care that the premises, plant, aaid machinery are reasonably safe ; but the servant may expressly or impliedly agree to exempt his master from this obligation in whole or in part, and to take the risk upon himself.^ 2 . Certain acts which are offences against the criminal law Consent as do not cease to be criminal merely because of the consent of criminal'^ him to whom they are done. Thus, no person can lawfully liability, consent to his own death, so that killing a man in a duel is murder. Nor can any one lawfully consent to grievous bodily harm, save for some reasonable purpose: for example, a proper surgical operation. ^ It has never been decided whether consent in such cases is a good defence in a civil action, but it is submitted that on principle it ought to be. If two men injure each other in a prize fight, they may be 1' Maritime Conventions Act, ISll, s. 4. 1 Smith V. Baker, (1891) A. O. 325; Yarmouth v. France (1887), 19 Q. B. D. 647. 2 See Reg. v. Coney (1882), 8 Q. B. D. 534. 4(2) 52 GENERAL PRINCIPLES OF LIABILITY. [CHAP. I. Knowledge distinguished from consent. Knowledge as evidence of consent. prosecuted criminally; but it is difficult to suppose that either oJ! them has a good cause of action against the other. ^ 3. Mere knowledge of an impending wrongful act, or of the existence of a wrongf uUy caused danger, does not in itself amount to consent, even though no attempt is made by the plaintiff to prevent or avoid that act or danger. Consent involves an express or implied agreement that the act may be rightfully done or the danger rightfully caused. The maxim of the law is Tolenti non fit injuria, not Scienti non fit injuria^ Thus, in Dulie of Brunswick v. Harmer^ the plaintiff successfully sued for libel, although the only pub- lication was the sale of a copy of the libellous paper to a person whom the plaintiff himself had instructed to buy it for the very purpose of enabling an action to be brought. Similarly, the occupier of land is not precluded from suing for a nuisance on the adjoining property by the fact that he well knew, when he went there, that the nuisance already existed.^ 4. The same principle applies to the other branch of the maxim Volenti non fit injuria, relating to the consent to run the risk of accidental harm . A servant who knowingly works on dangerous premises or with defective plant or tools is not for that reason ipso facto debarred from suing his employer when an accident happens. The question is not whether he knew of the danger, but whether in fact he agreed to run the risk, in the sense that he exempted his employer from his duty not to create the danger, and agreed to take the chance of an accident. Knowledge of the danger may be evidence of such an agreement, but it is nothing more. This prin- ciple was finally established by the House of Lords in the leading case of Smith v. Baker.'' The plaintiff was employed in the defendants' stone quarry, and had worked there for 5 See, however, Pollock's Torts, p. 164, 9th ed. Cf. the observa- tions of Hawkins, J., in Mecf. v. Coney, 8 Q. B. D. p. 553. ^ Per Bowen, L. J., in Thomas v. Qitartermaine (1887), 18 Q. B. D p. 696. 5 (1849), 14 Q. B. 185. 6 ElUotson V. Feetham (1,835), 2 Bing. N. O. 134. ' (1891) A. O. 325. SECT. 13] VOLENTI NON FIT INJUKIA. 5v mouths Avith full knowledge of the fact that he was exposed to danger by reason of the negligent practice of the defen- dants in swinging stones over the quarrymen's heads by means of a crane. The plaintiff having been injured by the fall of a stone, it was held that he was not, by reason of his knowledge of the danger and his acquiescence in it, ipso facto deprived of an action against the defendants, but that such knowledge and acquiescence were merely evidence for a jury on the question whether he had agreed with the de- fendants to take the risk of such an accident upon himself. A similar decision had previously been given by the Court of Appeal in Yarmouth v. France,^ where the plaintiff, a carter in the defendant's service, had notwithstanding his remonstrances been required by the defendant's foreman to drive a horse which, to the knowledge of both, was so vicious as to be unfit for the purpose. The same conclusion was reached in the later case of Williams v. Birmingham Bat- tery Co.,^ in which a workman met his death by falling from an elevated tramway which he knew to be unsafe, and which he had nevertheless used, for some time without remonstrance. i'^ 5 . Knowledge of the danger, even if it does not prove an other effects agreement to take the risk within the rule in Smith v. of knowledge. Baker, may nevertheless be a bar to the plaintiff's action for two other reasons: — (a) It may negative the existence of any negligence on the part of the defendant in causing that danger; (&) It may establish the existence of contributory negli- gence on the part of the plaintiff. 8 (1887), 19 Q. B. D. 647. 9 (1899) 2 Q. B. T>. 338. 10 See also Clarke v. Bolmes (1862), 7 H. & N. 937. The case of Thomas V. Quartermame (1887), 18 Q. B. D. 685, must, since S/nit/i v. Baker, be taken to have been wrongly decided. For in that case the Court of Appeal decided for themselves as a matter of law that the plaintiff (who was scalded by failing into a vat which to his knowledge was left unguarded) was deprived of any cause of action because Volenti non fit injuria. Since Smith v. Baker this is a question of fact for the jury, not of law for the judge. See the disapproval of Thmnas v. Qiuirtermaine expressed in Smith v. Baker by Lord Hersohell, (1891) A. 0. p. 365. 54 GENERAL PRINCIPLES OF LIABILITY. [CHAP. L In the first. place, there are certain cases in which he who causes a danger fulfils all his legal duty of care by giving notice of that danger to the persons whom it affects. Thus, he who lends a chattel gratuitously to another is not bound to do anything more than disclose the existence of any dan- gerous quality of which he actually knows and of which the borrower does not know.^i In all such cases, therefore, it is an absolute defence that the plaintiff had actual know- ledge of the danger which caused his injury: Scienti non fit injuria. In the second place, there are cases in which the act of the plaintiff in knowingly running a risk created by the defen- dant's wrongful act amounts to contributory negligence on his own part, and is so a bar to any action. Whether it does so or not depends on whether the conduct of the plaintiff Avas reasonable, having regard to the magnitude of the risk and the urgency of the occasion. A certain amount of risk I am entitled to face, even with full knowledge, rather than submit to be deprived of my liberty of action by the wrong- ful act of another; and if an accident happens, I can hold him accountable who wrongfully created the danger. But if the danger is so great that it is a foolhardy and unreason- able act to expose myself to it, I do so at my own cost. In Clayards v. Dethick^'^ the plaintiff, a cab-driver, occupied certain stables, and the defendant wrongfully dug a trench along the passage which afforded the only outlet from the stables to the street. The plaintiff attempted to lead out two of his horses along the passage and over the heaps of soil which the defendant had excavated, and while doing so one of the horses fell into the trench and was injured. It was held that the defendant was liable; for the plaintiff was not bound to submit to be thus deprived of the use of his stables, and was entitled knowingly to face the danger thus created, and to cast all responsibility for the issue upon the wrongdoer. " The whole question was whether the danger 11 Coughlin v. Gillison, (18^9) 1 Q. B. 145. 12 (1848), 12 Q. B. 439. SECT. 13] VOLENTI NON FIT INJURIA. 55 was so obvious that the plaintiff could not with common prudence make the attempt. "i^ It is clear that no risk, however great, can be made the ground of a charge of contributory negligence if the defen- dant himself requested or ordered or consented to the act of the plaintiff in running the risk. It may have been a fool- hardy act of the plaintiff in Yarmouth v. France^^ to drive the horse that did the mischief, but this defence was not open to the defendant. 6. The maxim Volenti nan fit injuria is in its strict and Summary, proper application limited to the case of an express or im- plied agreement to suffer harm or to run the risk of it. In a wider and less accurate sense, however, it is also used to include the operation of mere knowledge in excluding an action in accordance with the principles already mentioned. So that in this wide sense we may say that the maxim covers three distinct classes of cases: — (a) Those in which the plaintiff has agreed expressly or impliedly to suffer harm or to run the risk of it; (&) Those in which, because the plaintiff knows of the danger, the defendant has done no wrong in causing it; (c) Those in which, because the plaintiff knows of the danger, his act in voluntarily exposing himself to it is an act of contributory negligence, and so de- prives him of an action. 13 12 Q. B. p. 446. See also Jones v. Bopce (1816), 1 Stark. 493; Sobson T. N. E. My. Co. (1875), L. E. 10 Q. B. 271 ; Rose v. N. E. (Rly. Co. (1876), 2 Ex. D. 248. 14 (1889), 19 Q. B. TJ. 647. 56 CHAPTEE II. PARTIES . § 14. The Crown. The Crown Theee is no remedy against the Grown for a tort. For any for torts. violation by the Crown of the rights of subjects the appro- priate remedy, if there is one at aU, is not an action, but a petition of right. This remedy, however, is limited in its scope, and is not available in cases of tort. The Crown can- not be charged with negligence, fraud, or other forms of tortious wrongdoing, nor is it responsible for the acts of its agents and servants. ^ This rule is subject to the following qualifications : — (a) A petition of right will lie against the Crown for the recovery of damages for a breach of contract; and not the less so, it is presumed, because that breach of contract is also a tort.^ (&) A petition of right will lie against the Crown for the specific restitution of property wrongfully detained in the possession of the Crown; or for the value of such property, when the Crown has had the benefit of it and specific restitution is impossible. " The only cases," it has been said,^ " in which the petition of right is open to the subject are where the land or goods or money of a subject have found their way into the possession of the Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot be given, compensation in money; or where the claim arises out of a contract, as for goods supplied to the Crown or to the public service." 1 Tobin V. The Queen (1864), 16 0. B. (N. S.) 310; Feather v. The Queen (1865), 6 B. & S. 257. 2 Thomas v. The Quern (1874), L. E. 10 Q. B. 31 ; Windsor My. Co. V. The Queen, 11 A. C. 607. '= Feather v. The Queen (1865), 6 B. & S. p. 294. SKCT. 15] PUBLIC OFFICIALS. 57 § 15. Public Officials. 1 . The irresponsibility of the Crown does not ex tend to its Liability of agents and servants. Every such agent or servant is per- and agents of sonally responsible for all torts committed by him, and it is *^° Crown, no defence that the act complained of was done by him in his public capacity, or in the name and on behalf of the Crown, or by the express command or authority of the supreme executive. " The civil irresponsibility of the supreme power for tortious acts," it has been said by the Privy Counoilji "could not be maintained with any show of justice if its agents were not personally responsible for them." 2. The rule of employers' liability, however, is not appli- Public cable to public officials so as to make them responsible for ^sponsible the acts of other public officials who are subordinate to them, for their Thus, the Secretary of State for War cannot be sued in tort for the negligence of some subordinate official of the War Office; for the relation between him and his subordinate is not that of master and servant; they are fellow-servants of the Crown. It is otherwise, indeed, if an actual authority to commit the tort is given by the superior to his inferior; but it is not enough that the inferior was acting within the general scope of his employment, as in the ordinary case of master and servant. ^ 3. The mere fact that persons are intrusted by law with public functions does not in itself make them public servants so as to exempt them from liability for the acts of their sub- ordinates. Thus, in Mersey Docks Trustees v. Gibbs^ the defendant corporation was held liable for the negligence of its servants notwithstanding the fact that it had been estab- Kshed by statute for public purposes exclusively. It was a public body, but not a servant of the Crown or a department 1 Rogers v. Rajendro Dutt (ISeO), 13 Moore, P. C. at p. 236. See also Jlusgrave v. Pulido (187ft), 5 A. O. 102. 2 Raleigh v. Goschen, (1898) 1 Ch. 73. 3 (I8166), L. E. 1 H. L. 93. See also GUbert v. Trinity House (1881), 17 Q. B. D. 795. 58 PARTIES. [chap. II. of the executive Government; therefore its subordinates were in its own service and not in the service of the Crown. Similarly, municipal corporations, district councils, and other bodies corporate established for the purposes of local govern- ment are responsible for their servants; for they are not themselves the servants of the Crown.* Aliens and 4. The rule that the authority of the Crown is no defence to a public official in an action of tort does not apply when the plaintiff is an alien and the injury complained of is suffered elsewhere than in British dominions. No alien can complain in an English Court of any such act done by the authority, precedent or subsequent, of the English Crown. To British subjects the English Courts will grant redress even against the agents of the Government, wherever the wrong may have been committed; but those who owe no allegiance to the Crown may, save in British dominions, be dealt with by the Crown as it pleases. Thus, in Bur on v. Denma'nP the defendant, the commander of a British man- of-war, had destroyed certain property of an alien slave- trader on the coast of Africa in circumstances that would have given a good cause of action to a British subject. It was held, however, that inasmuch as the act of the defendant had been ratified by the British Government no action would lie at the suit of an alien. The limits of the rule in Buron v. Denman are a matter of some uncertainty, for there has been little occasion for the judicial consideration of the matter. Probably, however, the rule has no application in time of peace to injuries in- flicted within the Crown's dominions. An alien friend resi- dent within those dominions owes temporary allegiance to the King, and it may be confidently assumed that he has the same legal protection as a British subject against imprison- ment or other personal injuries though inflicted by an act of State. Similarly it may be assumed that if an alien friend, though resident abroad, owns property in England, * As to the liability of incorporated departments of the executive Government, see a. 17 (7), infra. 5 (1848), 2 Ex. 167. SECT. 16] FOREIGN SOVEREIGNS AND AMBASSADORS. 59 his title thereto will have the same protection, even against the Crown, as if it belonged to a British subject. An alien enemy, on the other hand, possesses no rights against the Crown. His residence within the realm by the express or tacit license of the Crown gives him legal pro- tection against private persons, and the English Courts are open to him, but it may be presumed that he remains none the less at the mercy of the Crown, which may do with liim and with his property as is thought fit. '5 § 16. Foreign Sovereigns and Ambassadors. 1 . A foreign sovereign is not liable in English Courts for Foreign any tort committed by him . This is merely a special appli- not liable, cation of the general principle that foreign sovereigns are wholly exempt from the civil and criminal jurisdiction of English Courts. The only remedj^ for injuries done by them is by way of diplomatic and executive action on the part of the British Government. It makes no difference that the wrongful act is committed in England. A foreign sovereign does not by residing in British territory waive his privilege or submit himself to the jurisdiction of the local Courts. Nor does it make any difference that the wrongful act is done by the sovereign in his private capacity. The exemption extends to all the acts of a sovereign, and not merely to acts of State. ^ 2. A foreign sovereign, within the meaning of this rule of immunity, includes (a) an independent State possessed of corporate or quasi -corporate personality — e.g., the United States of America; (&)the personal head of an independent State under royal or monarchical government; (c) probably the personal head even of a republican State — e.g., the Presi- s The question of the status of an alien enemy is one which has on several occasions and in various aspects come before the Courts for deci- 3ion during the present -war. The matter, however, does not relate exclusively or even chiefly to the law of torts, and the law is far from' being completely developed. Its discussion in this place, therefore, is thought unnecessary. 1 Mighell v. Sultan of Johore, (1894) 1 Q. B. 149; The Parlmnent Beige (1880), 5 P. D. 197. 60 PARTIES. [chap. II. Foreign ambassadors not liable. dent of the French Republic or of the United States of Am erica. 2 3. An ambassador or other public minister exercising diplomatic functions and accredited to the King of England by a foreign State or sovereign cannot be sued during his term of office for any tort.^ The right of action against him, however, is not non-existent, but is merely suspended during his term of office. Upon his recall he becomes sub- ject, like any other alien, to the jurisdiction of English Courts, and may be sued even for a cause of action which arose during his period of service. In such a case the Statute of Limitations does not begin to run in his favour until the expiration of his privilege enables a writ to be served upon him.* Liability of corporations always vicarious. Extent of responsibility of corporation for acts of its servants or agents. § 17. Bodies Corporate. 1 . Inasmuch as a corporation is a fictitious person distinct in law from its members, it is not capable of acting in pro- pria persona, but acts only through its agents or servants. All the acts, and therefore all the wrongful acts, of a body corporate are in fact the acts of its agents or servants, though imputed in law to the corporation itself. The liability of a bodj' corporate is therefore in all cases a vicarious liability for the acts of other persons. 2. The existence and extent of the liability of a corpora- tion in actions of tort were at one time a matter of doubt, due partly to technical difficulties of procedure and partly to the theoretical difficulty of imputing wrongful acts or inten- tions to fictitious persons.^ It is now well settled, however. 2 The ruling princes of the native Indian States, though under the suzerainty of His Majesty, are Sovereigns within the meaning of this rule: Statham v. SUttham, (1912) P. 92. '' Diplomatic Privileges Act, 1708 (7 Anne, c. 12) ; Magdaleim Steam Xavigation Co. v. Martin (1859), 2 E. & E. 94. The privili^e extends to a s!e«retary of legation (Taylor v. Best (1864), 14 G. B. 487; Republic of Bolivia Bxqiloration Syndicate, (1914) 1 Ch. 139), but not to a consul (Viveash v. BecTeer (1814), 3 M. & S. 284). The Diplomatic Privileges Act, 1708, is for the moat part declaratory of the common law. 1 Muslims Bey v. Gadban, (1894) 2 Q. B. 352. 1 Abrath v. N. E. Rly. Co. (1886), 11 A. C. 247, -per Lord Bramwell. SECT. 17] BODIES CORPORATE. 61 that the liability of a corporation for the torts committed by its agents or servants is governed by the same rules as those which determine the liability of any other principal or employer. This liabilitj' extends, moreover, to wrongs of malice or fraud, no less than to wrongs of other descriptions. Thus a corporation can be sued for malicious prosecution, or for malicious libel on a privileged occasion, or for fraudu- lent misrepresentation, no less than for trespass, conversion, or negligence. 2 3. It is commonly said, however, that this liability of Liability of a corporation for the acts of its agents or servants exists for wft™ rh-rs only where the scope of the authority or employment of *"''**• those agents or servants is within the statutory or other legal limits of the corporation's powers, and that if a cor- poration goes beyond the limits set by law for its activities, and enters upon any business or undertaking which is ultra v-ire^, it cannot be made liable for torts committed b}' its agents or servants in the course of that business or under- taking. In other words, the rule that a corporation is not bound by contracts which are ultra vires is commonly said to apply also to torts which are ultra vires, in the sense that they are committed in the course of some activity which is beyond the limits of the corporation's powers. ^ There is, however, no sufficient authority for any such exemption of corporations from the consequences of their disregard of the limits of their powers. It seems contrary to principle, and has been decisively rejected in numerous American decisions. Thus, in The National Bank v. Graham,'^ it is said by the Supreme Court of the United States: " Corpora- tions are liable for every wrong they commit, and in such cases the doctrine of ultra vires has no application. 2 Citizens' Life Asxuraiice Co. v. Broun, (1904) A. C. 423; Banvirk v. Enr/lish Joint Stock Bank (1867), L. R. 2 Ex. 259. 3 Clerk and Lindsell's' Torts, p. 62 n. {d), 6tli ed.: "To fix a corpora- tion with liability for the acta of its agents, two conditions must be fulfilled: First, the act must have been within the scope of the agent's employment; second, that employment must have been within the scope of the corporate powers." See also LLndley on Companies, Vol. I. pp. 257-259, 6th ed. ; Halsbury's Laws of England, Vol. VIII. e. 854. 4 (1879), 100 TJ. S. 699 at p. 702. 62 PARTIES. [chap. ir. An action may be maintained against a corporation for its malicious or negligent torts, however foreign they may be to the object of its creation or beyond its granted powers." So in Salt Lake City v. HolUster^ it is said by the same Court: " The argument is unsound that whatever is done by a corporation in excess of the corporate powers as defined by its charter is as though it was not done at all. . . . The truth is that with the great increase in corporations in very recent times and in their extension to nearly all the business transactions of life, it has been found necessary to hold them responsible for acts not strictly within their corporate powers, but done in their corporate name and by corporate officers who were competent to exercise all the corporate powers. "^ The English decision commonly cited as an authority for the supposed exemption of corporations from liability for nlira vires torts is Poulton v. London d S. Wi. Rly. Co.'^ In this case a railway company, having statutory authority to arrest passengers for non-payment of their fares but not for other reasons, was held not responsible for the act of a stationmaster in arresting a passenger for refusing to pay the freight payable for a horse. The true ground of this decision, however, was merely that the implied authority of a stationmaster does not extend to the doing of acts which are ultra vires of the company, and that in the absence of any proof of express autliority the stationmaster was act- ing beyond the scope of his employment and the company was therefore not responsible. ^ 5 (1885), 118 U. S. 256 at p. 260. 6 See also Nims v. Mount Sermon Boys' School (1893), 39 Am. State Rep. 467; Central Railroad and Banking Company \. Smith (1889), 52 Am. Rep. 333. ' (1867), L. R. 2 Q. B. 534. '^ See the explanation of this case by Kelly, O. B., in Mill v. Hawker, L. R. 9 Ex. 309, p. 324. In the la/St-mentioned case Pig-ott and Oleasby, BB. (Kelly, C. B., dissenting) were apparently of opinion that a corpo- ration could not be held liable for ultra vires torts, and that the action in such cases lay only against the members or agents by whom the wrongful act was done on behalf of the corporation. It is submitted that this is not so, and that the American decisions cited above to the opposite effect are sound in principle and should be followed. See also 3ooUm V. Midland RaUuviy do. (lS77)-,2 A. C. 793; Cator v. Boardof Works foi- Letcisham B-istrict (1864), 34 L. J. Q. B. 74; Campbell v. Paddingto-n SECT. 17"] BODIES CORPORATE. ^^ The true principle is, it is submitted, tho following: Evoiy act done, authorised, or ratified on behalf of a corporation by the supreme governing authority of that corporation, or ^7 ^ny person or body of persons to whom the general powers of the corporation are delegated, is for the purpose of the law of torts the act of the corporation itself, whether intra vires or ultra vires of the corporation, and the corporation is liable accordingly for that act or for any tort committed in respect of it by any agent or servant of the corporation within the scope of his authority or employment. If, for example, a municipal council establishes the business of a tramwa}", the municipal corporation will be liable in tort for the negligence of the sci-vants employed in the management of the tramway, or for any nuisance created by the working of it, notwithstanding the fact that the business so under- taken is beyond the limits of the corporation's statutory powers. 4. The foregoing rules as to the liability of a corporation statutory ,. 6 6 .,.,.,.'. „ ^ limits of are subject to any express or implied indication oi a contrary liability of intention in the statute to which the corporation o\yes its corporations, existence. A body corporate which is created by a statute is subject only to the liabilities which the Legislature in- tended to impose upon it. But, in the absence of anything to the contrary, it is presumed that the Legislature intended the corporation to incur the same liabilities as would be incurred by an individual doing the same things . "In every case the liability of a body created by statute must be determined upon a true interpretation of the statutes under which it is created."^ " The proper rule of construction of such statutes is that in the absence of something to show a contrary inten- tion the Legislature intends that the body, the creature of the statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities as the general law would impose on a private person doing the same things."^" Corporation, (1911) 1 K. B. 869; Whittaker v. L. C. C, (1915) 2 K. B. •676. 9 Mersey Docks Trustees v. Gibhs (1S66), L. R. 1 H. L. at p. 104. 10 Ibid, at p. 110. «4 PARTIES, [chap. II. Foreign corporations. Liability of members of corporation for torts committed by it. 5. A foreign corporation (that is to say, one which is created by the law of any country other than England) may sue and be sued in England for a tort, just as an English corporation may.^^ 6. The members of a corporation are not as such liable for torts committed by the corporation. For the purposes of the law of torts, no less than for those of the law of con- tracts or of property, a body corporate is a personality distinct from its members; and just as a member is not responsible for the debts contracted by a corporation, so also he is not responsible for torts committed by it. From this undoubted principle the very doubtful inference has sometimes been drawn that the members of a corporation are not liable for torts committed by it, even if they have themselves acted as the agents by whom the corporation has so acted. " I conceive it to be settled law,'' says Kelly, C. B., in Mill V. Hatvker,^^ "that no action lies against the in- dividual members of a corporation for a corporate act done b}^ the corporation in its corporate capacity, unless the act be- maliciously done by the individual charged, and the corporate name be used as a mere colour for the malicious act, or unless the act is ultra vires and is not and cannot be in con- templation of law a corporate act at aU. . An individual corporator is no more liable for a tort committed in his cor- porate capacity than for a debt due by the corporation. "^3, This, however, is a hard saying. It is undoubted law that the servants or agents by whom a corporation commits a tort are themselves personally liable in the same case and to. the same extent as any other servants or agents who commit, torts in the service or on behalf of their principals or em- ployers. It is difficult, therefore, to understand why the corporators themselves, if they act as the agents of the cor- poration, should not be equally liable for any wrongful acts, so committed by them. 11 Senriqties v. Butch West Itidia Co., 2 Ld. Raym. 1532; Kewby V. Van Oppen (1872), L. R. 7 Q. B. 293. 12 (1874), L. R. 9 Ex. 309, p. 321. 13 On appeal to the Exchequer Chamber no opinion was expressed on this point, the Court being apparently divided. See also Harman- V. Tappenden (I'SOl), 1 East, 56S. SECT. 17] BODIES CORPORATE. 65 7. In certain eases a body corporate is so constituted and Incorporated . J r departments bears so immediate a relation to the Crown that it must be of the Gov- regarded as a branch of the executive Government of the ^™™^°*- realm — an incorporated servant of the Crown. This is so, for example, with the Commissioners of His Majesty's Works and Public Buildings. In the absence of any express statutory provisions to the contrary, such a corporation has the same exemption from liability in tort as the Crown itself .1^ It possesses no legal personality or capacity other- wise than as an agent of the Crown, and any liability im- posed upon it would in reality be imposed upon the Crown. The only remedy, therefore, of any person injured by the wrongful act of such a corporation is against the individual persons by whom it exercises its functions and not against the corporation itself. § 18. Trade Unions. In The Taff Tale Railway Co. v. Amalgamated Society of No action W^lll ll6 Railway Servants^ it was held by the House of Lords that a against a trade union, though not a corporate body, could be sued in *'^"^^ union, an action of tort for the wrongful acts of its officials. Now, however, by section 4 of the Trade Disputes Act, 1906, ^ it is provided that "an action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union, in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any Court. "^ It is not easy to understand 1* Hope/- V. Commissioners of His Majesty's Works, (1915) 1 K. B. 45. As to the liability of such bodies corporate on contracts made by them, see Graham v. Public Works Commissioners, (1901) 2 K. B. 761. 1 (1901) A. C. 426. 2 6 Ed. VII. c. 47. 3 See Vacher # Sons, Ltd. v. London Society of Compositors, (1913) A. C. 107. The Act does not protect officials of a trade union from personal liability for wrongful acts done by or on behalf of the union. Bussy V. Amalfjamated Society of Ely. Servants (1908), 24 T. L. R. 437. 5 66 PARTIES. [chap. II. on what principle of justice these wealthy and powerful asso- ciations have thus been raised above the law and exempted from all liability for their wrongful acts. Infancy no defence in action of tort. Evidential effect of infancy. § 19. Minors. 1. A minor is in genera,l liable for his torts in the same manner and to the same extent as an adult. In certain other branches of the law liability is excluded by the fact that the defendant is below a certain age. Thus, a child under seven 3'ears of age is exempt from all responsibility for crimes committed by him. A child between the ages of seven and fourteen is presumed to be incapable of criminal intent, though this presumption may be rebutted by proof to the contrarj- . A person under the age of twenty-one is in general free from all liability for breach of contract. In the law of torts, however, there are no similar rules of exemption. Thus, a child of any age may be sued for trespass to land or injury to property, and will be held liable in damages just as if he were an adult. The youth of the defendant is not in all cases wholly irrele- vant, however, even in an action of tort. For it may be evidence of the absence of the particular mens rea which is an essential element in the kind of tort in question. Thus, if an action is based on malice or on some special intent, the fact that the defendant is extremely young is relevant as tending to disprove the existence of any such malice or intent. Similarly, it would seem that in order to make a child liable for negligence, it must be proved that he failed to show the amount of care reasonably to be expected from a child of that age. It is not enough that an adult would have been guilty of negligence had he acted in the same way in the same circumstances. This, indeed, seems never to have been decided, but it would seem implied in the decisions on the contributory negligence of children.^ 1 Lynch \. Nurdin (1841), 1 Q. B. 29; Harrold v. Watney, (1898) 2 Q. B. 320. SECT. 19] MINORS. 67 2 . When the act of a minor is both' a tort and a breach of ?-"?'*"?'^y °* infant for contract, is he liable for the tort, notwithstanding that the torts -which contract is not binding on him, or does his exemption from tresushea of an action for breach of contract protect him against an action contract. for the tort also? On this point the law cannot be regarded as settled, but the better opinion would seem to be that in such cases liability for the tort exists, and that it is no de- fence that the act was also the breach of an invalid contract. Thus, in Burnard v. Haggis^ the defendant, a young man under the age of twenty-one, hired a mare for riding, and in breach of his agreement he used her for jumping and so injured her. It was held by the Court of Common Pleas that the defendant was liable for the tort of doing negligent harm to property, notwithstanding the fact that it was at the same time the breach of a non-actionable contract. In Walley v. Holt^ a similar decision was given by a Divisional Court in the case of a minor who hired a horse and injured it by overdriving. So if an infant bailee refuses to redeliver the chattel bailed, he can doubtless be sued in trover for the tort of conversion. So if a minor purchases goods, and retains them in his possession while refusing to pay for them, he presumably commits an actionable conversion. Having exercised his right of avoiding the contract, the goods revest in the seller, who is entitled to demand them and sue in trover.* 2 (1863), U C. B. (N. S.) 45. 3 (1876), 35 L. T. 631. * The rule, as above stated, to the effect that an infant is liable for his torts even though they are also breaches of contract is contrary, indeed, to the early case of Jennings v. Rundall (1799), 8 T. R. 335, but it is submitted that this case is wrongly decided. The facts werei that the defendant hired a horse, and injured it by driving it too far; and he was held not liable in an action of tort, on the ground that the contract of bailment was not binding on him. The decision, therefore, would seem to be directly in conflict with the later cases of Burnard v. Haggis and Walley v. Holt. An attempt is sometimes made to reconcile them by drawing a distinction between torts which are merely wrongful modes of performing a contract and torts which are outside the contract altogether. This distinction, however, seems a merely verbal one, having no logical basis or substance in it. It is submitted that Jennings v. Sundall is a mistaken application of a correct principle — namely, that if the act of a minor is in reality merely a brea.oh of contract, he cannot be made liable by being sued in tort instead. In the old days of forms of action and of legal fictions this was a principle very necessary to 5(2) 68 PARTIES. [chap. II. An infant's liability for fraud in procuring' contract. Equitable obligation of restitution. 3. There is, however, an important exception to the rule that a minor is liable for his torts. He is not liable in tort for procuring a contract by means of fraudulent representa- tions either as to his age or as to any other matter.^ If a minor fraudulently pretends to be of full age, whereby the plaintiff is induced to contract with him, the contract is not for that reason binding on the minor, nor is he estopped from pleading' his infancy.*^ Neither can the plaintiff sue in tort for the deceit.''' So if an infant sells a horse and fraudu- lently represents it to be sound, this representation creates no liability either in contract or in tort. Yet if an infant is capable of fraud, there would seem to be little reason why he should not be liable for it. 4. Although a minor who procures a contract by a fraudu- lent representation that he is of age is not liable either on the contract or in tort, he is nevertheless subject to an equi- table obligation of somewhat undefined extent to restore any property or other advantage thereby obtained by him.^ Thus, if he borrows money by means of such a fraud, the money, while still capable of being traced into his posses- sion, can be recovered from him by the lender. But when be insisted on; for in those days the tort sued on in a delictal action was often a mere fiction, the real cause of action being a breach of con- tract and nothing mare. Thusi, a breach of warranty on a sale of goods was commonly sued on in tort instead of contract — case instead of assumpsit. It was in reference 'to these quasi-torts or fictitious torts' that the CJourts laid down the rule that an infant or married woman, could not be sued in tort unless also liable in contract. Thus, in Green V. Greenbank (1S16), 2 Marsh. 48S, an infant was sued in case for breach of warranty, and the action was held not to lie. Gibbs, C J., says: "The cases . . . clearly show that where the substantial ground of action rests on promises, the plaintiff cannot by changing the form of action render a person liable who would not have been liable on his promise." But this rule has no application where there is at the same time a real tort as well as a real breach of contract. Supra, s. 1 (5). See, however, Faivcett v. Smethurst (1915), 84 L. J. K. B. 473. 5 Johnson v. Pye (1665), 1 Sid. 258 : R. Leslie, Ltd. v. Sheill, (1914) 3 K. B. 607u 6 Liverpool Adelphl Association v. Fairhurst (1854), 9 Ex. p. 430; Bartlett v. Wells (1862), 1 B. & S. 836; Levene\. Brounham (1909), 25 T. L. K. 2i65. 7 R. Leslie, Ltd. v. Sheill, (1914) 3 K. B. 607. In Cowern v. Nield, (1912) 2 K. B. 419, notwiths'tanding the generality of the expressions there used as to the liability of a minor for fraud, it is not to be assumed that the Court intended to lay down any different principle. 8 See Pollock on Contracts, p. 68, 9th ed. SECT. 19] MINORS. 69 tho money has been so spent that no such tracing is joossible, the minor cannot be made to account in an action for money had and received or otherwise. ^ 5. A father is not liable for the torts of his children, even Fathers not while they are under age and living in his house. It is to be for^t^dr"^^ observed, however, that a child may be his father's servant, children's so as to bring the father within the rule as to employers' lia- bilit}'. If a father sends his son on an errand with a horse and caxt, he will answer for his son's negligence in driving; but he will answer for him, not as being hie father, but as being his emplojer. Moreover, a father may be liable for his own personal negligence in affording or allowing his child an opportunity of doing mischief .^o § 20. Lunatics. There is no adequate English authority as to the liability Lunacy as of lunatics for torts committed by them. On principle, how- ^n action ever, we may say with some confidence that lunacy is not in °^ ^°^- itself any ground of exemption, but that, like infancy, it operates (if at all) only as evidence that the requisite mens rea is not present. In applying this rule it is necessary to distinguish between different species of wrongs: — (a) In wrongs based on malice or on some specific intent, like malicious prosecution, malicious libel on a privileged occasion, or deceit, lunacy may be a good defence as dis- proving the existence of any such malice or intent. (&) In wrongs of wilful interference with the person, pro- perty, reputation, or other rights of other persons, such as trespass, assault, conversion, or defamation, it is no defence that the defendant was under an insane delusion as to the existence of a sufficient legal justification. For in such cases, as we have seen,i mistake, however inevitable, is no defence; * i* R. Leslie, Ltd. v. Sheill, (1914) 3 K. B. 607. It seems impossible to reconcile with this decision the earlier decision of Lush, J., in Stocks) V. WUson, (1913) 2 K. B. 235. 10 See Sullivan v. Creed, (1904) 2 Ir. E. 317; Dixon v. Bell (1816), 5 H. & S. 198. 1 Supra, s. 3 (3). 70 PARTIES. [chap. II, and it can make no difference that the mistake is due to unsoundness of mind. A lunatic, therefore, who converts another's property to his own use under the insane delusion that it is his own, or who publishes a defamatory statement under the insane belief that it is true, is just as liable as if he were sane. If, however, the lunacy of the defendant is of so extreme a type as to preclude any genuine intention to do the act complained of, there is no voluntary act at all, and therefore no liability. Mischief done by an epileptic in one of his paroxysms, or by a fever patient in his delirium, or by a, somnambulist in his sleep is presumably not actionable. (c) In wrongs of absolute liability there is no reason why lunacy should be any defence at aU.. (d) In wrongs of negligence the conduct of the defendant must be judged by reference to his knowledge or means of knowledge. Lunacy, therefore, may be relevant as evidence that the necessary knowledge or means of knowledge did not exist. A lunatic who is so mad that he does not know the dangerous nature of poisons and explosives, and who causes harm in consequence, is not negligent in fact; and there seems no sufficient reason why he should be deemed guilty of negligence in law. If inevitable ignorance of danger is a good defence to a sane man, it would seem clear that it must be none the less a good defence though due to unsoundness of mind. 2 2 The English authorities as to the liability of lunatics for torts are merely early dicta to the effect that lunacy is no defence in an action of trespass. Bacon's Maxims of the Law, Reg. VII. ; Weaver v. Ward, Hobart, 134; Bacon's Abr. Trespass, G. I.; Hale's Pleas of the Orown, I, 15. These dicta are clearly sound in the case of intentional trespasses on a supposed justification. As to unintentional trespasses, however, they must be regarded as based on the old and now obsolete idea that trespass is in all respects a wrong of absolute liability. In America there have been numerous cases as to the liability of lunatics, and the nutho- rities' will be found collected in Williams v. Says, 42 Am. St. Rep. 743 (1&94). The statement in this case that a lunatic will be judged in an action for negligence exactly as if he were sane seems much too absolute. Cf. Williams v. Says, 68 Am. St. Rep. 797 (1899). See Burdick on Torts, ss. 62, 63, 3rd ed. In JDonagJiy v. Brennan, 19 N. Z. L. R. 289 (1900), the Court of Appeal of New Zealand held a lunatic liable for intentionally wounding the plaintiff by firing a gun at him. See Sir Frederick Pollock's criticism of this case in hia Law of Torts, p. 56, 9th ed. SECT. 21] MARRIED WOMEN. § 21. Married Women. 1 . In general no husband can sue his wife for a tort, nor Actiona of can any wife sue her husband for a tort. This is a common- husband and law rule which has been expressly preserved by the Married '^^*®- Women's Property Act, 1882.1 Jt ^g subject, however, to the following qualifications: — (a) A wife may sue her husband in any action for the protection and security of her separate property, as if she were unmarried. ^ Thus, she may sue him for the detention or conversion of chattels belong- ing to her,3 or for negligent injury to her property, or in certain circumstances even for trespass by entering her dwelling-house without her permis- sion.* But she cannot sue him for assault, libel, false imprisonment, or other personal injury. Her remedies for wrongs of this description are to be found in the criminal law, not in the law of torts. (6) Special provision is made by the Married Women's Property Act, 1882,^ for the settlement of disputes between husband and wife as to the ownership or possession of property, a Judge of the High Court or of a County Court being empowered, on appli- cation by summons, to make in such a case such order as he thinks just. 2. By virtue of the Married Women's Property Act, LiabiUty of 1882,^ a married woman may be sued for her torts by any woman. one except her husband, in the same manner as a feme sole, and her free separate property is liable to satisfy any judg- ment so obtained against her. 3. A husband is liable for all torts committed by his wife Responsi- during the subsistence of the marriage. This was • the ^5^^*^^^°^ f^^. 1 Sect. 12. Phillips v. Burnett (1876), 1 Q. B. D. 436. 2 Married Women's Property Act, 1882, s. 12. '" Lamer v. Lamer, (1905) 2 K. B. 539. * See Weldon v. -Oe Bathe (1884), 14 Q. B. D. 339; Symonds v. Eallett (1883'), 24 Oh. D. 346: Wood. v. Wood (1871), 19 W. E. 1049. 6 Sect. 17. « Sect. 1. 72 PARTIES. [chap. II. his wife' I torts. Duration of husbanS's liability. common law, and the vicarious liability so imposed upon the husband has not been taken away by the Married Women's Property Acts.^ In an action against her husband the wife must be joined as co-defendant. They must defend jointly, and must not put in separate defences, and the judgment cannot be executed against the wife's separate property. The plaintiff, however, may join a claim against the wife sepa- rately with a claim against the husband and wife jointly; and in such a case the wife may defend separately, and her separate property will be liable to satisfy the judgment. In the case of a married woman's torts, therefore, the plaintiff has three alternatives: — (a) To sue the wife alone, under the Married Women's Property Act; (b) To sue the husband and wife jointly at common law; (c) To sue the husband and wife jointly at common law, adding a claim against the wife separateh' under the Act. 8 4. The liability of the husband ceases on the termination of the marriage, whether by the death of eitlier party or by divorce, even as to torts already committed, and actions already commenced, during the marriage. ^ Therefore, unless an action is commenced and judgment is obtained during the joint Lives of husband and wife, it cannot be com- menced or continued against the husband or his executors afterwards. So also if a decree absolute of divorce is obtained before judgment in the action for the tort.^" But the sejDarate liability of the wife remains unaffected. ' Seroka v. Kattmburg (1886), 17 Q. B. D. 177; Earle v. Klngscote, (1900.) 2 Ch. 585. Some doubt is cast on the correctness of these deci- sions by the criticisms of Fletcher-Moulton, L. J., in Cuenod v. Leslie, (1909) 1 K. B. 880, at pp. 886-889. It may be that the liability at common law of a husband for his wife's torts was based solely on the rule of procedure that a married woman could not be sued alone, but that her husbajid must be joined as a defendant for conformity. This necessity has now been abolished by the Married Women's Property Act, 1882, s. 1. 8 Beaumont v. Kaye, (1904) 1 K. B. 292. 9 Capel V. Powell (1864), 17 C. B. (N. S.) 743. 1" In re Beauchmnp, (1904) 1 K. B. 572: Norman v. Villais (1877), 2 Ex. D. 359. SECT. 21] MARRIED WOMEN. 73 The liabilit\- of the husband extends to torts committed P^y."™? ^""^ , , . ' . . . . judicial oj his wi±e even while thej- are living apai't, but it does not separation, extend to torts committed after a judicial separation. ii A decree of judicial separation obtained before judgment in the action of tort puts an end to the liability of the husband, but does not affect that of the wife. 12 5. The liability of a husband does not extend to a fraud Wife's frauds, committed by his wife in procuring a contract to be made with her. 13 A husband, though liable for his wife's torts, is not Kable for her contracts; and, indeed, at common law she was not liable herself on her contracts. A fraud in procuring a contract was and is in the same position in this respect a^ the contract itself. Since the Married Women's Property Act the wife is liable for her contracts, and therefore for frauds in procuring them, but the husband still remains exempt in each case.^* G. A husband is not liable for his wife's ante-nuptial torts, Wife's except to the extent of any property which he has acquired torts'^"^ ^* from her on marriage. ^^ Nor is he responsible for his wife's, breaches of trust, unless he has acted in the administration of the trust. 16 § 22. Executors and Administrators. Actio personalis moritur cum persona. 1 . Subject to the exceptions hereinafter mentioned, no Causes of , j--ii. 1, jj? ii, action in tort executor or administrator can sue or be sued lor any tort jjg ^^i, ^he committed against or by the deceased in his lifetime. This parties, is the purport of the maxim of the common law Actio per- sonalis moritur cum persona — a personal action dies with the parties to the cause of action. An action for a tort must 11 20 & 21 Vict. c. 85, s. 26. Head v. Bnscoe (1833), 5 0. & P. 484. 12 Cuenod v. Leslie, (ISOg) 1 K. B. 880. 13 Liverpool Adelphi Loan Association v. Fairhurst (1854), 9 Ex. 422; Wright v. Leonard (1861), 11 C. B. (N. S.) 258. 1* Earle v. Kingscote, (190O) 2 Oh. 585. 15 Married Women's Property Act, 1882, s. 14. i« Ibid. s. 24. 74 PARTIES. [chap. II. Survival of right of action in contract. be begun in tbe joint lifetime of tbe ■wrongdoer and the person injured. If, after it has been so begun, either of the parties dies before a verdict has been obtained, the action abates, and cannot be continued or recommenced by or against the representatives of the deceased. ^ This rule, however, which seems destitute of any rational basis, has been to a very large extent eaten away by excep- tions, some of which were admitted by the common law itself, while others have been introduced by statutes ancient and modern. Their aggregate effect is, speaking generally, to abolish the rule so far as it relates to injuries to property, but to leave it in full operation with respect to injuries of other kinds. 2. Exception I. The rule does not apply to breaches of contract (even though they are also torts) which result in 23ecuniary damage, though it does apply to breaches of con- tract which are merely personal injuries causing no such damage. Thus, in Bradshaw v. L. d Y. Ely. Co.^ a pas- senger on the defendants' railway was injured by an accident due to the defendants' negligence, and after an interval he died of the injuries so received. His executrix was held entitled to recover, in an action for breach of contract, the damage to his personal estate arising in his lifetime from medical expenses and his inability to attend to business. But even a breach of contract will die with the parties, if and so far as it is a merely personal injury without any direct or consequential pecuniary loss. Thus, executors can neither sue nor be sued for a breach of promise of marriage, unless 1 See Finlay v. Chirney (1888), 20 Q. B. D. 494; Phillips v. Homfray (1'883), 24 Ch. D. 439; Ord. 17, r. 1. The question whether a cause of action survives the death of the person -injured must be carefully dis- tinguished from the question whether the act of causing the death of a person gives any right of action for damages to his relatives. The former question is that which is considered in this section; the latter will be dealt with later in connection with the provisions of the Fatal Accidents Act. See Chap. XI. 2 (1875), L. R. 10 O. P. 189. This case was doubted in Leggott v. Gt N. Rly. Co. (1876), 1 Q. B. D. at pp. 605, 607, but it seems sound in principle. It was followed in Daly v. Dublin, |c. Mly. Co. (1892), 30 L. R. Ir. 514. See also The Greta Bolme, (1897) A. C. p. 601, per Lord Halsbury. SECT. 223 EXECUTORS AND ADMINISTKATOES. 75 pecuniary damage is shown. ^ So in Bradshaw's case which has just been cited no damages were recovered in respect of the personal injuries and suHering of the deceased. 3. Exception II. The maxim Actio personalis morUur Survival of cum persona does not apply to torts Avhich involve the wrong- "^f^^^^ ful appropriation or acquisition by one man of property appropriation belonging to another. Executors may sue and be sued for ° P''°P^'' y- the value of that property. This is a second exception estab- lished by the common law, the maxim in question not being applied so as to allow a wrongdoer to retain another's pro- perty, or the proceeds of it, simply because the owner from whom he wrongfully took it has since died. Nor, conversely, is it tolerable that the executors of a wrongdoer should refuse to pay the value of property wrongfully appropriated by the deceased, simply because the wrongdoer is now dead. " The only cases," it has been said,* "in which, apart from ques- tions of breach of contract, express or implied, a remedy for a wrongful act can be pursued against the estate of a deceased person who has done the act appear to us to be those in which property, or the proceeds or value of property, belonging to another have been appropriated by the deceased person and added to his own estate or moneys." In order that this exception shall apply, it is not necessary that the property thus appropriated by a deceased person should be traceable in specie into the hands of his executors, or even that its proceeds should be so traceable. The rule is not analogous to the rule as to following trust property. All that is necessary to make the executors liable is that the deceased shall have wrongfully appropriated the property and got the benefit of it. Whether he kept it, or consumed it, or sold it makes no difference. For all unjust benefit so derived by him his executors must account. It is not enough, however, that the wrongdoer has in some way derived benefit from the wrong; the benefit must have resulted from the wrongful appropriation of property, other- 3 Chamberlam v. Williamson (1814), 2 M. & S. 408; Finlay v. Chirney (1888), 20 Q. B. D. 494. * Phillips V. Homfray (1883), 24 Oh. D. p. 454. 76 PARTIES. [chap. II. Phillips V. Homfray. Actions by- executors for injury to personal estate. wise there is no obligation of restitution that will survive. Thus, in Phillips v. Hofnfray^ the deceased had owned a coal mine adjoining the plaintiff's farm, and had trespassed below the surface of the farm, excavating and removing the coal that was there, and also using the passages so made for the conveyance of large quantities of coal from the deceased's own mine. The plaintiff sued the executors of the wrong- doer, claiming (1) the value of the coal so taken, (2) payment for the use of the passages upon the plaintiff's property, and (3) compensation for damage done to that property. It was held by the Court of Appeal that the first of these claims was valid, that the second was invalid (since the benefit thus obtained by the deceased was not due to the appropriation of the plaintiff's property), and that the third claim was also in- valid (since it was not a claim for the restitution of a wrong- ful benefit, but one for compensation for wrongful harm).*^ 4. Exception III. By the statute 4 Ed. III. c. 7, execu- tors and administrators may sue for any injury done to the personal estate of the deceased. This is the first of three statutory exceptions to the rule which we are considering., The words of the statute have been liberally construed to include not only executors but also administrators, and not only trespasses but all injuries directly affecting the personal estate of the deceased. Thus, in Tivi/cross v. Grant"^ it was lield by the Court of Appeal that the executors of a deceased shareholder could sue the promoters of the company for the issue of a fraudulent prospectus whereby the deceased had been induced to take shares in the company and to part with 5 (1883)j 24 Ch. D. 439. ^ Historically this exoeptioji to the maxim as to actio personalis is apparently an application of the doctrine of waiving a tort and suing- on an implied or quasi-contract. Actions of tort died -with the partdes; actions of contract did not. In those cases, therefore, in which it was permissible to waive the tort and sue instead on a fictitious contract, the maxim could be evaded. The exception, however, must now be regarded as standing on an independent foundation of its own. In modern law there seems to be no subsisting connection between the doctrine of the survival of actions and the doctrine as to the waiver of torts. See Hainbli/ v. Trott (1776), 1 Cowp. p. 375; Phi/lips v. Homfraij, 24 Ch. D. p. 457. ' (1878), 4 C. P. D. 40. SKCT. 22] EXECUTORS AND ADMINISTRATORS. 77 his money in payment for them. So in Hatchard v. Mege^ it was held that an action of slander of title to a trade mark survived, and was maintainable by executors. It seems, however, that the statute does not enable execu- tors to sue for pecuniary loss which is consequential upon injuries to the pei-son or reputation or other personal rights of the deceased. There must be a direct injury to the deceased's estate, and not merely a pecuniary loss resulting from an injury of some other kind. Thus, in Pulling v. Gt. Eastern RUj. Co.^ the plaintiff sued as executrix of her late husband, who, while crossing the defendants' railway, was run down in consequence of the defendants' negligence and so injured as to be disabled from working. Some time afterwards he died, and the claim was for loss of wages during his incapiacity and for medical expenses; but it was held that the cause of action did not survive the deceased, Bradshaio v. Lancashire and Yorkshire JEtly. Co.^^ being distinguished as a case of contract. So in Hatchard v. Mege^^ it is laid down that an action of defamation cannot be brought by executors, even on proof of pecuniary damage. The distinction thus indicated is unsatisfactory in principle, and the matter is one that may admit of further judicial consideration. If a false representation causing pecuniary- loss is actionable at the suit of executors, as in Twycross v. Grant,^^ as being an injury to the personal estate, it is diffi- cult to see on what principle defamation or even personal injury, causing pecuniary damage, should not be actionable on the same ground. 5. Exception IV By the Civil Procedure Act, 1833,13 Actions by -, T ■ ■ , , p . ■ 1 . executors for executors and administrators may sue tor any injury done to injuries to the real estate of the deceased within six calendar months real estate. before his death, but the action must be brought within one year after his death. This rule supplements the rule established by the statute of Edward III., which, as we have 8 (1887), 18 Q. B. D. 771. See also Oakei/ v. JDalton (1887), 35 Ch. D. 700. ^ (1882), 9 Q. B. D. 110. 10 (1875), L. R. 10 C. P. 189. " (1887), 18 Q. B. D. 771. 12 (1878), 4 C. P. D. 40. i^ 3 & 4 WUl. IV. c. 42, s. 2. PARTIES. [chap. II. seen, is limited to injuries to the personal estate. It will be noticed, however, that the later statute imposes certain conditions as to time which do not exist in the earlier. Where the wrong to the real estate consists in the severance and removal of things from the freehold, such as the wrongful excavation of coal, the executors may, if they please, waive the injury to the real estate, and sue in trover or trespass as for an injury to the personal estate, the things so taken having become chattels by the severance.^* By this device the executors may avoid the limitation of time imposed by the statute of William IV. and sue for injuries committed more than six months before the death of the deceased. Where the wrong is a continuing one, it is sufficient if it continues up to a period within six months before the death, even though it commenced long before; and damages may then be recovered, subject to the operation of the Statute of Limitations, for the whole duration of the injury.^^ Appa- rently it makes no difference that the injury was a concealed fraud, unknown to the deceased; if it was committed more than six months before the death, there is no remedy for it under the statute. .Actions 6. Exception V. By the Civil Procedure Act, 1833,16 e.xecutors for Gxecutors and administrators may be sued for all injuries injury to real committed by the deceased within six months of his death in or person rtl -^ estate. respect of the property, real or personal, of the plaintiff; but the action must be brought within six months after the defendants have entered on the administration of the estate. ^^ Liability of joint ■wrongdoers. § 23. Joint Wrongdoers. 1. Joint wrongdoers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any one of them separately for the full amount of 1* Martin v. Porter (1839), 5 M. & W. 351 ; Wood v. Morewood (1841), 3 Q. B. 440 n. 15 Woodhouse v. Walker (1880), 5 Q. B. D. 404; Jenks v. Viscount Clifden, (1897) 1 Ch. 694. .16 3 & 4 Will. IV. c. 42, s. 2. 1' See, for example, Woodhouse v. Walker (1880), 5 Q. B. D. 404. SECT. 23] JOINT Wrongdoers. 79 the loss; or he may sue all of them jointly in the same action, and even in this latter case the judgment so obtained against all of them may be executed in full against any one of them.i How far there is any right of contribution or indemnity as between the wrongdoers themselves we shall consider later. ^ 2. Persons are to be deemed joint wrongdoers within the who are meaning of this rule whenever they are responsible for the J°^°* , '^ _ J c wrongdoers. same tort — that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more persons at once. This happens in at least three classes of cases — namely, agency, vicarious liability, and common action. (a) Agency. Whenever one person employs, or autho- rises, or procures another to commit a tort, it is imputed in law to both principal and agent, and they are jointly and severally responsible for it as joint wrongdoers: Qui facit per alium facit per se.^ (h) Vicarious liability. There are many cases in which the law for various reasons imputes to one person, who has in fact had no part in it, a wrongful act committed by another. In these cases the person who really commits the act and the person who is thus held vicariously responsible for it are joint wrongdoers. Thus, a master and his servant are jointly and severally liable for acts done by the servant in the course of his employment, although not authorised by the master. Similarly, partners are joint wrongdoers in respect of any tort committed by one of them within the scope of the part- nership business. So the employer of an independent con- tractor is a joint wrongdoer with him in those exceptional cases in which the negligence of such a contractor renders his employer liable.* 1 Mitchell V. Tarbutt (1794), 5 T. E. 649. It ia said, however, in the older authorities that liability arising from the ownership or occupation of land in common is not joint and several, but merely joint. Wms. Saund. I, 291, gr. Sed qu. 2 See s. 24, infra. * "AU who procure a trespass to be done are trespassers themselves." Wilson V. Tumman (1843), 6 M. & G. at p. 244. * The vicarious liability of a, husband for his wife's torts is sui generis, and is governed by rules which are not in conformity with the ordinary law as to joint wrongdoers. 80 PAKTIES. [chap. II. Not neces- sarily joint ■wrongdoers because they cause the (c) Common action. The third and last class of joint wrongdoers consists of persons wlio, by joining together in some form of common action, become responsible together for some tort which is committed in the course of it: for example, two persons agree together to publish a defamatory libel, or they hire a conveyance and drive it negligently and cause an accident, or while walking together they trespass by mistake upon another's property. Under this head must be included all cases in which persons incur a common responsibility by owning or occupying property in common, as when two partners are held liable for the dangerous state of the partnership premises, or two owners of a horse or dog arc hold responsible for mischief done by it. So if two men engage the same servant in the same service they are jointly and severally responsible for him. 3. Persons are not joint wrongdoers simply because their independent acts have been the cause of the same wrongful damage. They must, in fact or in law, have committed the same damage, game wi'ongful act. Thus, in Thompson v. London Counti/ Council" the plaintiff's house was injured by the subsidence of its foundations, caused by excavations negligently made by A, taken in conjunction with the negligence of B, a water company, in leaving a water-main insufficiently stopped. It was held that A and B, inasmuch as their acts were inde- pendent of each other, were not joint wrongdoers, and could not be joined as such in the same action. " The damage," said Collins, L. J.,^ "is one, but the causes of action which have led to that damage are two, committed by two distinct personalities." Similarly, where successive and independent acts of conversion have been committed by different persons in respect of the same chattel, each of those persons is liable in trover to the owner for the full value of the chattel, but they are not joint wrongdoers.' They are severally liable for the same damage, not jointly liable for the same tort. So also in all those cases in which a person is held liable for negligence, notwithstanding the fact that the immediate = (1899) 1 Q. B. 840. See also Sadler v. Gt. W. Ely. Co., (1896) A. C. 450. 6 (1899) 1 Q. B. p. 845. ' See Harris v. Robinson (1824), 3 B. & O. 196. SECT. 28] JOINT WRONGDOEKS. 81 cause of the accident was the intervening negligence of another person. ^ Those persons are both liable for the damage done, but thej- are liable severally, not jointly. ^ 4. Where two or more defendants are sued together as Damages joint wrongdoers, it is not allowable to sever or apportion the apportioned, damages between them so that separate judgments may be given against each. There must be a single verdict and judgment for the aggregate amount of damages to which the plaintiff is entitled, and this is so even though the defendants sever in their defence. i'' -^ Such as Clark v. Chambers (1878), 3 Q. B. D. 327. ^ The rules applicable to persona who are thus severally liable for the same damage, instead of being jointly and severally liable for the same tort, seem to be the following: — (a) At common law they could not be joined in the same action for damages, for it was not permissible in one and the same action to claim damages from A for one tort and from B for another. In what cases they can now be joined depends on the true construction of 0. 16, i. 4: ''All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alterna- tive." In Sadler v. Gt. IV. My. Co., (1896) A. C. 450, it was held that this rule did not justify the joinder of two distinct causes of action in tort against different defendants, and that causes of action are distinct, within the meaning of this doctrine, even though it is the same damage which is recoverable in each case. Since the decision of the House of Lords in that case, however, an alteration has been made in O. 16, ±. 1 (dealing with joinder of plaintiffs), in order to get rid of the effect of the decision in Smurthwaite v. Ilannay, (1894) A. C. 494, that 0. 16 relates solely to joinder of parties and not to joinder of caused of action. This alteration of 0. 16, r. 1 has so far affected the in- terpretation of 0. 16, r. 4, also, as to render possible, notwithstanding Sadler v. Gt. W. Rly. Co., the joinder of distinct causes of action in certain classes of cases. It is difficult, however, as the authorities stand, to state definitely how far this joinder is permissible: see Compania Sansinena de Crimes Congeladas v. Roulder Bros., (1910) 2 K. B. 354; Thompson v. London County Council, (1899) 1 Q. B. 840; Bullock v. London General Omnibus Co., (1907) 1 K. B. 264; Frankenhurg v. Great Horseless Carriage Co., (1900) 1 Q. B. 504; Kent Coal Exploration Co. v. Uartin (1900), 16 T. L. E. 486; Qower v. Couldridge, (1898) 1 Q. B. 348; Munday v. South Metropolitan Electric Light Co. (1913), 29 T. L. R. 346. (6) Judgment against one of them is no bar to an action against the other, but since the plaintiff cannot be allowed to recover satisfac- tion more than once, payment by one of the wrongdoers will reduce the damages recoverable from the others. Morris v. Eobinson (1824), 3 B. & O. 196. (c) A release of one will presumably not release the others. (d) Unless the wrong is a wilful one, so as to come within the analogy of the rule in Merryweather v. Nixan, there seems to be no reason why such wrongdoers should not have a claim for contribution inter se. Infra, s. 24. 10 Greenlands, Ltd. v. Wilmshurst, (1913) 3 K. B. 507. s. 6 82 PARTIES. [chap. II. Measure of 5_ Inasmuch, therefore, as the joint wrongdoers may have been guilty in unequal degrees and may have contributed unequal shares to the total injury suffered by the plaintiff, and as separate damages cannot be awarded as against each of them, a question arises as to the true measure of damages. Are the damages so awarded against both to be measured by the guilt of the most guilty or by that of the least guilty of the defendants? The general answer is that the measure of damages is the aggregate injury done to the plaintiff by the joint acts of the defendants, even though they have con- tributed to that aggregate in very different proportions. If two men agree to assault a third, and one of them beats him grievously and the other beats him but a little, nevertheless he will recover against both of them compensation for the total injury so suffered by him.^i An exception to this rule exists, however, in the case where one of the defendants is guilty of malice or other circum- stances of aggravation justifying an award of oxemjDlary damages, while in the case of the other no such circum- stances of aggravation exist; as where two men are found liable for false imprisonment, one of whom acted under an innocent mistake and the other in wilful violation of the law. In such cases the malicious motive of the one cannot be made the ground of exemplary damages against the other. If, therefore, such damages are desired by the plaintiff, he must sue separately the most guilty defendant, from whom he claims them. If he joins both in one action, the innocence of the one defendant will to this extent protect the other. ^^ 11 Clark V. Newsam (1847), 1 Ex. 131. 12 Clark V. Newsam (1847), 1 Ex. 131. "It would be very unjust," says Pollock, C B., at page 140, "to make the malignant motive of one party a ground of aggravation of damage against the other party, who was altogether free from any improper motive. In such case tie plaintiff ought to select the party against whom he means to get aggravated damages." It may be, however, that this rule does not apply to cases in which the innocent defendant stands in such a relation {e.g., that of employer) towards the other, as to be vicariously liable for himi. If so, exemplary damages can be recovered from an employer for the mali- cious wrongdoing of his servant. The question has been much discussed in the American Courts. See Sedgwick on Damages, Vol. I. sect. 380, 9th ed. SECT. 23] JOINT WRONGDOEKS. ^^ 6. A judgment obtained against one ioint wrono-doer Judgment releases all the others, even though it is not satisfied . This one joint rule was established by the judgment of the Court of Ex- '«'™ng'loer. chequer Chamber in Brinsmead v. HairisoiiA^ It applies Ha^'^n^.*^ "' even to cases iu which the plaintiff was ignorant, when he obtained judgment against the one wrongdoer, that he pos- sessed any right of action against the other: as, for example, when the other is a concealed principal in the matter. For the judgment, even when so obtained in ignorance, merges and destroys the whole cause of action . A different rule is applicable to joint and several liability for breach of contract, for in that case a judgment obtained against one will not, unless satisfied in full, be any bar to a subsequent action against the others. i* In ordinary cases, however, liability for breach of contract is merely joint, and not joint and several; and a judgment against one contractor so liable will discharge the others even without satisfaction. 7 The release of one joint wrongdoer releases all the Release of others, even though this was not the intention of the parties, wrongdoer. "It is, we think," says A. L. Smith, L. J., in Duck v. Mayeu,^^ "clear law that a release granted to one joint tortfeasor or to one joint debtor operates as a discharge of the other joint tortfeasor or the other joint debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released." This rule is equally applicable to a release under seal and to a release by way of accord and satisf action. 1^ A mere covenant or other agreement not to sue one of the joint wrongdoers must, however, be distinguished from an actual release given to him, whether by deed or by accord and satisfaction. An agreement not to sue does not, like a re- lease, destroy the cause of action, but merelj' prevents it from 13 (1871), L. R. 7 C. P. 547. 1* Kini/ V. Hoare (1844), 13 M. & W. 494. 15 (1892) 2 Q. B. at p. 513. 16 Thurman v. Wild (1840), 11 A. & E. 453. 6(2) 84 PARTIES. [chap. II. being enforced against the particular wrongdoer witli whom the agreement was made.^' A transaction which is in form an actual release, whether by deed or by accord and satisfaction, will be construed as being merely an agreement not to sue, if it contains an express reservation of the right to proceed against the other wrongdoers. For this reservation would otherwise be wholly ineffective. 1^ § 24. Contribution between Wrongdoers. ?"|? 1. No person who has been guilty of fraud or any other weather )'. form of wilful wrongdoing, and has been made liable in ixan. damages, has any right of contribution or indemnity against any other person who is a joint wrongdoer with him. This is commonlj^ known as the rule in Merryw&ather v. Nixan,'^ the case in which it was first laid down, but in which it was very imperfectly considered and formulated . Where the rule is applicable, any wrongdoer who is compelled to pay the whole or more than his proportionate share of the damage is precluded from making any claim upon his feUow-offenders for a fair division of the burden between them . The reason alleged is the technical one that any such claim must be based on an implied contract between the wrongdoers, and that such a contract is necessarily illegal and void, as being made in contemplation of the commission of an illegal act. But this reasoning is unconvincing; contribution between joint wrong- doers is no more based on a contract than is contribution be- tween joint sureties. It is based on the principle of justice, that a burden which the law imposes on two men should not be borne wholly by one of them. The rule in Merryweather Y. Nixan, however, is now too firmly established to be ques- tioned. Lord Herschell says in a Scottish case:^ "It is now " Duck V. Mai/ew, (1892) 2 Q. B. 511. 18 Ibid.; Bateson v. Gosling (1871), L. R. 7 C. P. 9. I (1799), 8 T. R. 186. " Palmer V. Wick and Pulteneytown Steam Shipping Co., (1894) A C at p. 324. SECT. 24] CONTKIBUTION BETWEEN WRONGDOERS. *^5 too late to question that decision in this country; but when I am asked to hold it to be part of the law of Scotland, I am bound to say that it does not appear to me to be founded on any principle of justice or equity or even of public policy which justifies its extension to the jurisprudence of other countries." 2. The better opinion is that the rule .in Merryweather v. Limits of Nixon applies only to cases of wilful and conscious wrong- doing, and that it is not applicable to cases of mere negli- gence, accident, mistake, or other unintentional breaches of the law. In Betts v. Gibbins^ it is said by Denman, C. J. : " The general rule is that between wrongdoers there is neither indemnity nor contribution; the exception is where the act is not clearly illegal in itself." So in Adamson v. Jarvis,^ Best, C. J., says: " From reason, justice, and sound policy, the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seek- ing redress must be presumed to have known that he was doing an unlawful act." In Palmer v. Wick and PuUeney- totini Steam Shipping Co.^ Lord Herschell quotes these observations with approval, and regards them as establishing a right of contribution in a case of joint negligence.*^ 3. A statutorj- exception to the rule in Merryweather v. Statutory Niocan has been created by section 84 of the Companies (Consolidation) Act, 1908, which provides that there shall be a right of contribution between directors or promoters who arc jointly and severally liable, under the provisions of that Act, for misrepresentations contained in a prospectus. Even in this case, however, a person guilty of fraud has no claim against another who is guilty merely of negligence. 3 (1834), 2 A. & E. p. 74. * (1827), 4 Bing. p. 73. 5 (1894) A. 0. p. 324. See also Burrows v. Rhodes, (1899) 1 Q. B. p. 828, per Kennedy, J. 8 On the other hand, in The Englishman and the Australia, (1895) P. 212, Bruoe, J., held in a case of damage due to negligence that there was no right of contribution or indemnity in the absence of special circum- stances /creating an implied contract to that effect. It is not easy to see, however, why an implied contract of contribution should be re- quired in the case of joint wrongdoers any more than in the case of sureties. See also The Cairnhahn, (1914) P. 25. 86 PARTIES. [chap, ii. Contribution under Mari- time Conven- tions Act. Contribution and indem- nity. 4. Another statutory exception is created by section 3- of the Maritime Conventions Act, 1911, which creates a I'ig'ht of contribution between two ships in the case of los& of life or personal injuries Avhere both ships are in fault. 5 . Except in the case of wilful wrongdoing, there is, if the foregoing interjoretation of the rule in Merry weather v. Nixan is correct, a right either of contribution or of indemnity between joint wrongdoers. The right is one of contribution — all the wrongdoers sharing equally — unless there is some special reason why one or some of them should bear the whole loss and indemnify the others. Such a right o£ indemnity exists in at least two classes of cases: — (a) A principal must indemnify his agent for all liability incurred by him in consequence of the act authorised being (without the knowledge of the agent) an illegal one. Thus,, in Adamson v. Jarvis^ the plaintiff, an auctioneer, was held entitled to be indemnified by the defendant, a client who had instructed him to sell goods to which, as it subsequently appeared, he had no title. (6) It seems clear on principle, also, that in all cases of vicarious liability the person held vicariously liable for the tort of another must have a right of indemnity as against that other. Thus, a master who has paid for the negligence of his servant can doubtless sue that servant for indemnit-^'. At common law, all per- sons jointly injured muat join in one action. § 25. Persons Jointly Injured. 1 . Where two or more persons possess a right of action in respect of one and the same injury — as, for example, a tres- pass or other wrong to the property of co-owners, or a libel on a firm of partners in the way of their business, — is it necessary that those persons should all join in one and the same action, or can one of them sue without the others? The old rule of the common law on this point was that (with certain exceptions which need not be now considered) all (1827), 4 Blng. 66. See also Siirrou-s v. Rhodex, (1899) 1 Q. B. 816. SECT. 25] PERSONS JOINTLY INJURED. ^7 persons so suffering a joint injury must join in one action. The objection of non-joinder, however, could be taken only by -way of a plea in abatement, and if the defendant omitted so to plead, one of two co-owners, for example, could recover damages in respect of his own interest in the property, although the other co-owner was not a party to the action. After judgment had been so recovered by him, a second action would lie at the suit of the other co-owner in respect of his own interest, and in the second action no plea of abate- ment was available. 1 2. Pleas in abatement being now abolished, it follows that AiUer since the non-joinder of persons jointly injured is no longer a bar pieasin"° to an action by one or some of them. The only effect of such abatement, a non-joinder is that the Court may, in its discretion, order the other persons so jointly injured to be joined as parties to the action, either as plaintiffs or (if they will not consent) as defendants.- 3. Where two or more persons have suffered a joint injury. Release by a release granted by one of them will, in the absence of fraud, °^^ °^ several ° ■' . persons destroy the whole cause of action, and operate as a bar to an jointly action' by any of the others.^ ""J"^^^- § 26. Principal and Agent. 1. Any person who authorises or procures a tort to be Respon- committed bj- another is responsible for that tort as if he pr4oipalfor had committed it himself: Qui facit per alium facit per se. agent. "All who jDrocure a trespass to be done are trespassers them- selves. "^ Principal and agent, therefore, are jointly and severally liable as joint wrongdoers for any tort authorised by the former and committed by the latter. Speaking generally, a principal is liable only for those acts of his agent which he actuallj' authorises (expressly or im- 1 Addiaon v. Overend (1796), 6 T. R. 766; Sedcjworth v. Overend (1797), 7 T. R. 279; Blackhorough v. Graves, 1 Mod. 102; Broadbent v. Ledirnrd (1839), 11 A. & E. 212; Ohitty on Pleading, I., 73. 2 Roberts v. Holland, (1893) 1 Q. B. 665; Cullen v. Knon-h-s, (1898) 2 Q. B. 380. 3 Phillips V. Clacjett (1843), 11 M. & W. 84. 1 V'iUon V. Timman (1843), 6 M. & G. at p. 244. 88 PARTIES. fCHAP. II. Liability arising from ratification. Conditions of ratification. pliedly). He is not in general liable for unauthorised torts committed by the agent in the course of his agency. He is not, for example, responsible in ordinary oases if the agent by negligence, mistake, or fiaud does some illegal act in the execution of his employment. This rule, however, is subject to exceptions. By far the most important of them is that which governs that particular form of agency which exists in the case of master and servant; this v/e shall consider separately in succeeding sections of this chapter. Other exceptions exist in the case of particular kinds of torts, and will be considered in connection vi^ith them: by reason of certain anomalous rules of absolute or vicarious liability, there are cases in which a person cannot delegate to an agent the performance of certain kinds of acts without being I'esponsible for the negligence or other illegality of the agent in the doing of them. 2. Ratification. If one person commits a tort while acting on behalf of another, but without his authorit}', and that other subsequently ratifies and assents to the act so done, he thereby becomes responsible for it, just as if he had given a precedent authority for its commission. " That an act done for another by a person not assuming to act for himself but for such other pereon, though without any precedent autho- rity whatever, becomes the act of the principal if subse- quently ratified by him, is the known and well-established rule of law. In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent as by, and with all the consequences which follow from, the same act done by his previous authority. "^ In other words, the rule that an authority subsequent is equivalent to an autho- rity precedent is applicable not merely in the law of contracts, but in the law of torts also. 3. In order that ratification of an unauthorised act should thus make the principal responsible for it, the following conditions must be fulfilled: — (a) The wrongful act must have been done on behalf of the 2 Vilson V. Tnmmnn (1843), 6 M. & G. p. 242. SEt T. 26] PRINCIPAL AND AGENT. ^9 principal. No man can ratify an act which was done, not on his behalf, but on behalf of the doer himself. " By the com- mon law," says Coke,^ "he that receiveth a trespasser and agreeth to a trespass after it be done is no trespasser unless the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment." In the case of contracts it has been decided by the House of Lords in Keighley Maxsted d Co. v. Durante that there can be no ratification unless the agent not merely contracts on behalf of the principal, but also avows that intention at the time. Possibly the same rule applies to torts also.^ But if this is so, it must be understood that the necessary avowal need not be expressed in words, but may sufficiently appear from the conduct of the parties and the facts of the case. It cannot be necessary for a railway official who arrests a passenger for defrauding the railway company to state in terms that he does so on behalf of the company. (&) A second condition of effective ratification is that the principal must know the nature of the act which has thus been done on his behalf, unices, indeed, he is content to dis- pense with any such knowledge and to approve and .sanction the acts of the agent whatever they may be.^ It is sufficient, however, if the principal has such knowledge of the nature of the act as would have sufficed to make him liable had he actually authorised it or done it himself. Mistake or ignorance is no greater defence to a principal who gives an authority subsequent than to one who gives an authority precedent.^ 4. When an illegal act done by one person on behalf of Act of agent another but without his authority would have been legal had JaUfication^ it been done with his authority, it becomes legal ab initio if 3 Fourth Inst. 317 ; Wilson v. Barker (1833), 4 Barn. & Ad. 614. * (1901) A. C. 240. 5 See, however, Lord Eobertson's observations, (1901) A. C. at p. 260. See also Eastern Construction Co. v. National Trust Co., (1914) A. C. 197, p. 213. 6 Freeman v. Eosher (1849), 13 Q. B. 780; Leiuis v. Read (1845), 13 M. & W. 834. 7 Hilbery v. Eatton (1864), 2 H. & C. 822. 90 PARTIES. [chap. II. he subsequently ratifies it.^ This rule, taken in conjunction with the one which has just been considered, shows that the ratification of a tortious act has two quite distinct effects — (a) it sometimes makes the principal liable as well as the agent; (6) in other cases it justifies the act, and destroys the liability which the agent has already incurred by doing it. Which of these two effects it produces in any case depends, on whether the principal himself could lawfully have done or authorised the act . An act may be thus justified by ratification, even after the commencement of an action against the agent ; but the ratifi- cation must in all cases have taken place at a time when the- principal stiU retained the power of lawfully authorising the act to be done.^ Partners liable for each other's torts. § 27. Partners. By the Partnership Act, 1890, ss. 10 and 12, it is pro- vided, in affirmance of the common law, that partners are jointly and severally liable for each other's torts committed "in the ordinary course of the business of the firm." Thus,. in Hamlyn v. Houston^ a firm was held liable for the act of one of the partners who, on behalf of the firm, induced by bribery a servant of the plaintiff to commit a breach of his contract of service. Whether the act of a partner is one done in the course of the business of the firm is a question to be determined on the same considerations as those which determine the responsibility of a master for the acts of his- ser\'ant. Indeed, for this purpose we may regard each partner as the servant of the firm. Employers' liability. § 28. Masters and Servants. 1. A master is liable for any tort committed by his ser- vant while acting in the course of his employment. This is 8 Whitehead v. Taijloi- (1839), 10 A. & E. 210; Buron v. Benman (1848), 2 Ex. 167; Hull v. PichersqiU (1819), 3 Moore, 612. 9 Bb-A V. Brown (1850), 4 Ex. 786. 1 (1903) 1 K. B. 81. SECT. 28] MASTERS AND SERVANTS. 91 by far the most important of tho various cases in which vicarious responsibility is recognised by tho law. Its rational justification is to be found in the presumption that the negligence and other torts of a servant in tho execution of his master's business are either actually authorised by the master, or, at least, are the result of some want of care on the master's part in the choice of competent servants or in the superintendence and control of their work. 'Very often this presumption does not correspond with the facts; but the difficulty of actually proving some default on the part of the master would be so great that it is, better, on the whole, to create a legal presumption against the master, and even to make that presumption irrebuttable. 2. In order that this rule of vicarious responsibility may Greneral con- apply, there are two conditions which must co-exist: — Ui) The relationship of master and servant must exist between the defendant and the person committing the wrong complained of; (b) The servant must in committing the wrong have been acting in the course of his employment. 3. A servant may be defined as any person employed by who is a another to do work for him on the terms that he, the servant, ^^'^^*°t- is to be subject to the control and directions of his employer in respect of the manner in which his woi'k is to be done. If we use the term agent to mean any person employed to do work for another, we may say that agents are of two kinds, distinguishable as (1) servants and (2) independent contractors. It is for the first kind of agent only that his employer is responsible under the rule which we are now considering. When the agent is an independent contractor, his employer is not, in general, answerable save for torts actually authorised by him. But when the agent is a ser- vant, his employer will answer not merely for all torts actual!}' authorised, but also for all those which are com- mitted bj- the servant while engaged in doing his master's business, whether they are authorised or not. 4. What, then, is the test of this distinction between a Servant _ servant and an independent contractor ? The test is the f^ojn ° y^ PARTIES. [chap. II. independent existence of a right of control over the agent in respect of the contractor. . ° . . • ma.nner in which his work is to be done. A servant is an agent who works under the supervision and direction of his employer; an independent contractor is one who is his own master. A servant is a person engaged to obey his em- ployer's orders from time to time; an independent contractor is a person engaged to do certain work, but to exercise his OAvn discretion as to the mode and time of doing it — he is bound by his contract, but not by his emjDloyer's orders. "Upon the principle that qui facit per nlium facit per se," says Baron Parke in Quarman v. Burnett,^ "the master is responsible for the acts of his servant; and that person is undoubtedly liable who stood in the relation of master to the wrongdoer — he who 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." Thus, my coachman is my servant; and if by negligent driving he runs over some one in the street, I am responsible. But the cabman whom I engage for a particular journey is not my servant; he is not under my ordei-s; he has made a contract with me, not that he will obey my directions, but that he will drive me to a certain place; if an accident happens by his negligence he is responsible, and not I. So I am responsible for the domestic servants in my house, but T am not responsible for a skilled artisan whom I engage to do a certain job in my house — for example, to paint it, or to mend a window. So in Evans v. Liverpool Corporation'^ it was held that a municipal corporation establishing a hos- pital is not responsible for the negligence of a physician appointed by them. 3 1 (1840), 6 M. & W. at p. 509. 2 (1906) 1 K. B. 160. See also HUlyer v. Governors of St. Bartholo- mew's Hospital, (1909) 2 K. B. 820. AUfer with school-teachers ap- pointed by the Education Authority. Smith v. Martin, (1911) 2 K. B. 775. 3 By statute 1 & 2 Will. IV. o. 22, the proprietors of hackney cabs in London, are made responsible for the negligence of the drivers to whom the cabs are hired, as if the relationship of master and servant existed between them. In fact, the relationship is that of bailor and bailee. SKCT. 28] MASTERS AND SERVANTS. 93 o. One person may be the servant of another although Temporary employed not continuously, but for a single transaction only, aewioe and even if his service is gratuitous or de facto merely. The sufficient. relationship of master and servant is commonly a continuing engagement in consideration of wages paid; but this is not essential. One person may be the servant of another on a single occasion and for an individual transaction, provided that the element of control land supervision is pres.ent. More- over, the service may be merely gratuitous, as when the owner of a carriage asks a friend to drive it for him.* On the same principle a father may be responsible for the torts of his children, provided that they are acting de facto as his servants. 6 . A. servant may have two or more masters at the same Effect of time in respect of different employments. In particular a servant. master may lend his servant to another person for a certain transaction so that quoad that employment he becomes the servant of the person to whom he is so lent, though he re- mains for other purposes the servant of the lender. When a servant is sent by his employer to do work for another, it is a question of fact, depending on the nature of the arrange- ment and the degree of control exercised over the servant, whether he becomes quoad hoc the servant of the person for whom ho is working, or remains in all respects the servant of his ordinary employer. When a servant has thus two masters, the responsibility for a tort committed by him lies exclusively upon the master for whom and under whose con- trol he was working when he did the act complained of. Thus, in Donovan v. Laing Construction Syndicate^ the defendants contracted to supply a firm of wharfingers with a Keen i. Henry, (1894) 1 Q. B. 292; Gates v. BUI, (1902) 2 K. B. 38. Another anomalous rule makes a litigant, though no relationship of master and servant exists between him and his solicitor, liable in certain cases for mistaken and ill^al acts done by the latter in the course of the litigation. Jarmain v. Hooper (1843), 6 M. & G. 827; Smith V. Keal (1882), 9 Q. B. B. 340; Morris v. Salberrj (1889), 22 Q. B. D. 614. * Wheatley v. Patrick (1837), 2 M. & W. 650; Samson v. Aitohison, (1912) A. C. 844. AUter if he l&nt the carriage to a friend. 5 (1893) 1 Q. B. 629. 94 PARTIES. [chap. II. crane and a man to work it. This man received directions from the wharfingers or their servants as to the working of the crane, and the defendants had in that respect no control over him. An accident having happened through the negli- gent management of the crane, it was held that the defen- dants were not liable, on the ground that the man in charge of the crane was quoad hoc the servant of the wharfingers, and that they alone were responsible for him. "For some purposes," says Lord Esher,^ "no doubt the man was the servant of the defendants. Probably if he had let the crane get out of order by his neglect, and in consequence any one was injured thereby, the defendants might be liable; but the accident in this case did not happen from that cause, but from the manner of working the crane. The man was bound to work the crane according to the orders and under the entire and absolute control of Jones & Co." So Bowen,L. J., says:'' "We have only to consider in whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant the person who has a right at the moment to control the doing of the act." Similar decisions are Bourke v. White Moss Colliery Co.,^ Murray v. Currie? and Jones v. Scullard.^^ In the first of these cases Cockburn, C. J., says:^^ " When one person lends his servant to another for a particular employment, the servant for anything done in that particular employment must be dealt with as the servant of the man to Avhom he is lent, although he remains the general servant of the person who lent him." So in Hall v. Lees^- it was held that a nursing association was not liable for the negligence of a nurse while employed in the house of a patient, the nurse being in these circumstances no longer the servant of the association . Quarman v. 7 . Where, on the other hand, the servant of A is appointed by him to do work for B, but remains exclusively subject to 6 (1893) 1 Q. B. 632. ^ (1893) 1 Q. B. 633. 8 (1877), 2 C. B. D. 205. » (1870), L. R. 6 C. P. 24. 10 (1898) 2 Q. B. 565. " (1877), 2 C. P. D. at p. 209. 12 (1904) 2 K. B. 602. SECT. 28] MASTERS AND SERVANTS. S'j the control and direction of A, he remains the servant of A, and B is not responsible for him. Thus, in Quarman v. Bur- luii'^''' it was held that he who hires horses from a livery- stable keeper, together with a man to drive them, is not responsible for the negligence of the driver ; and that this is so even though the defendant habitually engages the same driver, and even if he is the owner of the carriage driven. So in Jones v. Corporation of LivprpooP-'^ the defendant corporation was held not liable for the negligence of the driver of a watering-cart belonging to them, the driver and horses having been supplied to the defendants by a con- tractor who employed and paid the driver, and the defendants having exercised no control over him, except to instruct him what streets to water. Similarly, in Waldeck v. Winfield^^ a company hired from the defendant a van, horse, and driver for the purpose of delivering goods to their customers; and it was held that responsibility for the negligence of the driver rested on the defendant who supplied and not on the company who used him.^'^ 8 . A superior servant is not the master of the inferiors who Superior are under his control, and he is not responsible for their torts, responsible Thus, the head of a Government department or other public ^°^ subordi- ofKcial is not responsible for the wrongdoing of servants engaged by him and under his control. The relationship between them is not that of master and servant; they are fellow-servants of the Crown. ^^ For the same reason the directors of a company are not responsible for torts com- ,- '■ niitted by inferior servants of the company, although those servants are appointed and controlled by the directors.!^ 13 (1840), 6 M. i: W. 499. 1* (1885), 14 Q. B. D. 890. 15 (1901) 2 K. B. 596. See also Deivar v. Tasker, 23 T. L. R. 259. 16 In Jones v. Scullard, (1898) 2 Q. B. 565, the defendant owned hie own horses and carriage, but hired a driver from a livery-stable, and was held liable for his negligence, Qitnrman v. Burnett being distin- guished. It is clear that the owner of horses must have a complete right of control over the driver, even when hired from a. livery-stable, which is absent if the horsea are hired also. 1' Raleigh v. Goschen, (1898) 1 Ch. 73; Bainbridcie v. Postmaster- General, (1906) 1 K. B. 178. 18 Weir V. Barnett (1877), L. R. 3 Ex. D. 32; Weir v. Bell (1878), 3 Ex. D. 238. 96 PARTIES. [chap. xr. PubUc authorities responsible for their servants. 9 . The rule of employers' liability extends to trustees and bodies corporate charged with the management of public property and with the exercise of public functions, in the same manner and to the same extent as in the case of private employers, subject, however, to the two following qualifica- tions: — (a) Such trustees or bodies corporate are in some cases merely departments of the central executive Government, and so mere servants of the Crown, and exempt from liability in accordance with the rule stated in the last paragraph. (b) Such trustees or bodies corporate may be expressly or impliedly exempted from liability for the acts of their servants by the statute under which they exercise their f unctions. ^^ Master not liable except for acts done in course of servant's employment. § 29. The Course of Employment. 1 . A. master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for acts actuallj- authorised by him : for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so comiected with acts which he has authorised that they may rigtitly bo regarded as modes — although improper modes — of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. In respect of the manner of his work a 19 See Mersey Dochs Trustees v. Gihhs (1866), L. E. 1 H. L. 93, Moreover, a subordinate official is not necessarily the servant of » public body simply because he is appointed to his position by that body under a statutory authority or duty in that behalf. Stanbury v. Bxetet* Corporation, (1905) 2 K. B. 838. Cf. Lambert v. Great Eastern JRli/. Co., (1909) 2 K. B. 776. SECT. 29] THE COURSE OF EMPLOYMENT. 97 servant is, as we have seen, under the control of his master; iuul this control brings with it a corresponding responsi- bility. Therefore, if a servant does negligently that which he was authorised to do carefully, or if he does fraudulently that which he was authorised to do honestly, or if he does mistakenly that which he was authorised to do correctly, liis master will answer for that negligence, fraud, or mistake. " In all these cases," says the Court of Exchequer Chamber in BaruicJc v. English Joint Stock Bank,^ "it may be said that the master has not authorised the act. It is true he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the aet of his master to place him in." On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it. He can no longer be said to be doing, although in a wrong and unauthorised way, what he Avas authorised to do; he is doing what he was not authorised to do at all. Thus, in Beard v. London General Omnibus Company^ the defendant company was held not liable for a collision caused by the negligence of the conductor of an omnibus, who, at the end of a journey and in the temporary absence of the driver, took upon himself to drive the omnibus for the pur- pose of turning it round for the return journey. Driving an omnibus is not a mode, rightful or wrongful, of performing the duties of a conductor; and the accident happened, not because the conductor failed to perform his own duty, but because without authority he attempted to fulfil that of a driver. So in The Bank of New South Wales v. Owston^ it 1 (1867), L. E. 2 Ex. 259, at p. 266. 2 (1900) 2 Q. B. 530. Of. Micketts v. Thos. Tilling, Ltd., (1915) 1 K. B. 644, where the driver in breach of his duty allowed the conductor to drive an omnibus, and the employer was held liable. s (1879), 4 A. O. 270. s. 7 98 PARTIES. [chap. II. Effect of express prohibition. was held by the Privy Council that the arrest and prosecu- tion of offenders is not within the ordinary scope of the authority of a bank manager, and therefore that in the ab- sence of evidence of special authorisation a bank was not responsible for a malicious prosecution undertaken by its manager. On the same principle, in Abrahams v. D&aJcin^ thi3 owner of a public-house was held not liable for the act of his servant who, while in charge of the bar, gave the plain- tiff into custody on a mistaken charge of attempting to pass bad money. We may contrast with these cases the decision of the Ex- chequer Chamber in Bayley v. Manchester Bailivay Co.,^ in which it was held that the defendant company was liable for the act of a porter in violently putting a passenger out of a railway carriage, under the erroneous belief that he was in the wrong train. Here it was one of the duties of the porter to prevent passengers from getting into the wrong trains; and, although the plaintiff was in fact in the right train, the act of the porter was merely a wrong and mistaken way of doing the work intrusted to him, and not an unauthorised assumption of work that did not pertain to him. Similarly, in Seymour v. Greenwood^ the defendant was held liable for the mistaken act of his servant, the conductor of an omni- bus, in ejecting by force an unoffending passenger. 2. Prohibited acts. Even express prohibition of the wrongful act is no defence to the master, if that act was merely a mode of doing what the servant was employed to do. Thus, in Limptis v. London General Omnibus Co.'' the defendant company was held liable for an accident caused by the act of one of its drivers in drawing across the road so as to obstruct a rival omnibus, and it was held to be no defence that the company had issued specific instructions to its drivers not to race with or obstruct other vehicles. The * (1891) 1 Q. B. 516. See also Sanson v. Waller, (1901) 1 K. B 390; Allen v. London # S. W. Ely. Co. (1870), 6 Q. B. 65; Gof v. Gt. W. My. Co. (1861), 3 E. & E. 672; Edwards v. London & N. W Rly. Co. (1870), L. K. 5 C. P. 445. 5 (1873), L. R. 8 C. P. 148. 6 (1861), 7 H. & N. 355. ' (1862), 1 H. & C. 526. SECT. 29] THE COUKSE OF EMPLOYMENT. 99 driver whose conduct was in question was engaged to drive, and the act which did the mischief Was a negligent mode of driving, for which his employeirs must answer, irrespective of any authority or of any prohibition. Prohibition is rele- vant in considering what the scope of the servant's employ- ment was, and therefore in determining whether the wrongful act was or was not a mode of exercising that employment; but it is powerless to exclude an employer's liability for the wrongful acts of his servant within the sphere permitted to him .8 3. Wilful wrongdoing by a servant. The liability of a Wilful master extends to frauds and other wilful wrongs, no less of'^gervan"^ than to negligence and mistake. If his servant does fraudu- lently what he is employed to do honestly, the master must answer for the fraud. Thus, in Barivick v. English Joint Stock Bank^ the defendant bank was held liable for a fraudu- lent representation made to the plaintiff by the manager of one of the bank's bi'anches in relation to the business under his control. " With respect to the question," says Willes, J., delivering the judgment of the Exchequer Chamber, ^o "whether a principal is answerable for the act of his agent in the course of his master's business and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong." It was long supposed that where the fraud or other wilful wrongdoing of the servant was committed for his own bene- fit and not on his master's behalf, his master was not respon- sible. It has now been decided by the House of Lords, however, in Lloyd v. Grace Smith <& Co A''- that this is not the case, and that so long as a servant is acting within the 8 Barnes v. Nunnery Colliery Co., Ltd., (1912) A. C. 44; Plumb v. Cobden Flour Mills Co., Ltd., (1914) A. C. 62; Whitehead v. Ready, (1901) 2 K. B. 48; Herbert v. Samuel Fox § Co., Ltd., (1915) 2 K. B. 81. These are authorities on the Workmen's Compensation Act, but the principle is equally applicable to the common law liability of an em- ployer to third persons. 9 (1867), L. B. 2 Ex. 259. " Ibid, at p. 265. 11 (1912) A. C. 716, overruling the dicta to the contrary of Bowen, L. J., in British Mutual Banlcing Co. v. Gharnwood Forest Bly. Co. (1887), 18 Q. B. D. at p. 718, and of Lord Davey in Euben v. Great JFingall Consolidated, (1906) A. C. at p. 465. 7(2) 100 PARTIES. [chap. II. sco23e of the employment intrusted to him, his employer is liable for all frauds committed by that servant, whether for the benefit of the employer or for his own profit. Theft by rpj^jg decision will apparently necessitate the reconsidera- lion of previous decisions as to the liability of a master for thefts committed by his servants of property bailed to the master or otherwise committed to his oharg'e. It has hitherto been supposed that a bailee is not responsible for the loss of the property by theft, even though the thief is the bailee's own servant, unless the bailee has given occasion to the theft by his own negligence or by that of some other servant employed to take care of the property. Thus in Oiblin v. McMuUen^^ it was held by the Privy Council that a bank which acted as the gratuitous depositary of the valuable securities of a customer was not r^ponsible for the theft of those securities by the bank-cashier to whom the keys of the strong-room in which they were kept wea?e com- mitted. So in Cheshire v. Bailey^^ the plaintiff, a silver- smith, hired from the defendant a brougham, horse, and rhan for the purpose of driving the plaintiff's traveller about London with samples of the plaintiff's wares to be shown to customers. While the traveller was temporarily absent in the course of his business, the coachman, acting in collusion with thieves, drove the brougham to a place where the samples were stolen by the thieves. It was held by the Court of Appeal that the defendant, the coachman's employer, was not liable, the coachman in so conspiring with thieves being no longer acting within the scope of his employment. In the previous case of Abraham v. Buttock, ^^ on the other hand, the facts were exactly the same, save that the coach- man, in permitting the theft, was acting negligently and not fraudulently; and it was held that his employer was liable. Since the decision of the House of Lords in Lloyd V. Grace Smith (& Co.^^ this distinction is immaterial, and apparently both Gibliny. McMullen and Cheshire v. Bailey must be taken to have been wrongly decided. It would 12 (1868), L. R. 2 P. O. 317. " (1905) 1 K. B. 237. 1* (1902), 86 L. T. 796. is (1912) A. C. 716. SECT. 29] THE COURSE OF EMPLOYMENT. lOi appear (unless the general principle of an employer's lia- bility for torts is modified in cases of bailment by the express or implied terms of the contract) that the responsi- bility of the bailee must depend on whether the servant by "whom the theft is committed is one to whom the charge or custody of the thing stolen has been committed by his master. If such a servant steals the thing intrusted to him, he is act- ing nevertheless in the courae of his employment — he is doing fraudulently what he is employed to do honestly — and his employer is liable. But if the theft is committed by a ser- vant to whom the property has not been intrusted, the theft is outside the scope of his employment, and the master is not responsible unless the theft has been induced by his own negligence or by the negligence of some other servant to whom the charge of the property has been committed. 4. Servant's unauthorised use of Ms employer's property. Use of A. master is not responsible for the negligence of his servant property for in the unauthorised use of his master's property for the ser- servant s vant's own purposes. This rule has been applied on several occasions when harm has been done by the negligent driving of servants while using their master's horses and convey- ances for their own ends. These cases have established the rule that a master is not responsible merely because he in- trusted to the care of his servant the instrument which did the mischief. The test is not wheither the servant was in- trusted with it, but whether he was using it in his master's business or in his own. "The question," says Maule, J.,^^ "is not whether the servant was trusted, but whether he was employed, so as to make his master liable. The way it is always put is, whether the man was about his master's busi- ness at the time." Accordingly, in Mitchell v. Crassweller^'' the defendant's servant was engaged to drive a cart, and on returning to his employer's premises at the end of his day's work it became his duty to take the horse and cart to the stables. Instead of doing so, he drove away on a new journey for his own IS Mitchell v. Crassweller (1853), 13 C. B. at p. 243. " (18S3), 13 0. B. 237. 102 PAETIES. fCHAP. II. Servant engaged both on his master's business and on his own. purposes exclusively; and while returning lie injured the plaintiff by negligent driving. It was held that the defen- dant, his master, was not liable. Similar decisions have been given on more or less similar facts in Storey v. Ashion,^^ Rayner v. Mitchell,^^ and Sanderson v. Collins.'^'' It is to be observed, however, that i£ the servant is really engaged on his master's business, the fact that he is at the same time engaged on his own is no defence to the master, even though it was the competing claimis of the servant's business which caused him to perform his master's negli- gently. The master is exempt only when the servant was exclusively on his own business. If while driving his master's cart in the course of his employment he lights his pipe, and while so 'engaged causes a collision by not looking where he is going, his master will be liable; and it will be no defence to him to allege that the servant in lighting his pipe was engaged on his own business and not on his master's; for he was in truth engaged on both. So where a carman deviates for his own purposes from the direct line which he ought to have followed in the execution of his master's business, and an accident happens while this de- viation still continues, it is a question of degree whether the deviation is so great that the servant can no longer be said to be driving on his master's business but to be on a journey of his own, or whether, on the other hand, the deviation is so slight that it may be said to be part of the journey on which his master sent him. In Joel v. Morison,"'^ Parke, B., says: "If the servants, being on their master's business, took a detour to call upon a friend, the master wiU be responsible. . . . The master is only liable where the ser- vant 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 wiR 18 (1S69), L. R. i Q. B. 476. 20 (1904) 1 K. B. 628. 19 (1877), 2 C. P. D. 357. 21 (1834), 6 C. & P. p. 503. SECT. '29] THE COURSE OF EMPLOYMENT. 103 not be liable.'' So in Storey v. AsMon,-- Cockburn, C. J., says: " I am very far from saying, if tlie servant, when going on his master's business, took a somewhat longer road, that owing to this deviation he would cease to be in the employ- ment of the master, so as to divest the latter of all liability ; in such oases it is a question of degree as to how far tht' deviation could be considered a separate journey." o. Servant's negligence contemporaneous vnth his employ- NegUg-enoe mciit. A master is not responsible for the negligence or em*\'o^ment other wrongful act of his servant simply because it is com- but not in mitted at a time when the siervant is engaged on his master's employment. business. It must be committed in the course of that busi- ness, so as to form a part of it, and not merely coincident in time with it. In Williams v. Jones-^ the defendant employed his servant, a carpenter, to make a signboard in a shed belonging to the plaintiff, fwho had allowed the use of it for this purpose. The carpenter lit his pipe while so en- gaged, and set the shed on fire by negligently throwing down the light used by him. It -was held by the Court of Ex- chequer Chamber^* that the defendant was not liable. "It was not necessary that he should smoke in order to make the signboard, nor was the aot of lighting the pipe in any way whatever for the benefit of his toaster or in furtheranoe of the object of his employment. It is said he was negligent whilst using the shed, and that in a sense is true . It seems to us, however, that in order to make the master liable the servant must not only have been negligent in using the shed, but in using it for the purposes of his master and in the course of his employment. "^^ There was no negligence in making the signboard (the master's business); there was negligence only in smoking the pipe (the servant's business) . The fact that the two things were coincident in time did 22 (1869), L. B. 4 Q. B. p. 479. See also G-racey v. Belfast Tramwa;/ Co., (1901) 2 Ir. E. 322. The case of Coupe Co. v. MaddicJe, (1891) 2 Q. B. 413, must be taken to have been wrongly decided. See Sanderson V. Collins, (1904) 1 K. B. 628. 23 (1865), 3 H. & C. 602. 2* Erie, C. J., Keating and Smith, JJ. — ilellor and Blackburn, JJ.. dissenting. 25 3 H. & O. at p. 612, per Keating, J. 104 PARTIES. [chap. II. Acts which servant is permitted but not em- ployed to do. not make them parts of a single transaction done on behalf of the master. It is true that the servant was negligent in his management and care of the shed, but he was not em- ployed by his master to look after the shed; his master's business was the making of a signboard, not the oare of the plaintiff's shed. If, on the other hand, the fire had arisen through the act of the servant in lighting a fire to boil his glue-pot, the master would have been responsible. So, to use a former illustration, if the servant had been a carter instead of a carpenter, and had lit his pipe while driving his master's horses, and whilst so doing he had run over the plaintiff through inattention, his master would have been responsible; for this would have been a negligent way of driving borsies, and not merely a negligent way of lighting pipes. But if, after lighting his pipe under the same circumstances, he had negligently thrown away the match, and so burned the plaintiff's crops, his master would have been free from responsibility. This ^^•ould be a negligent way of smoking tobacco, but an unexception- able way of driving horses. 6. Permission distinguished from employment. On the same principle, a master is not responsible for the negligence of his servant while engaged in doing something which he is 'permitted to do for his own purposes, but not employed to do for his master. I am liable only for what I employ, my servant to do for me, not for what I allow him to do for himself. If I permit my servant for his owi\ ends to drive my horse, I am not liable for his negligence in doing so. In this respect he is not my servant, but a mere bailee to whom I have lent my property; and there is no more reason why I should answer for his conduct in such a matter than why I should answer for that of my friends or my children to whom, without personal negligence on any own part, I lend or intrust property that may, be made the instrument of mischief. Thus, in respect of Williams v. Jones,^^ already referred to, it is submitted that even if the carpenter had 26 (1865), 3 H. & C. 602. SKcr. 30] THE RULE OF COMMOiN EMPLOYMENT. 105 been expressly permitted to smoke while doing his -svork, the master must have bfeen equally free from liability, unless the act of granting such a permission A\"as in itself an act of personal negligence on the master's part.^'^ § 30. The Rule of Common Employment. 1 . A master is not responsible for negligent harm done by Master not one of his servants to a fellow-ser^■ant engaged in a common to his own employment with him. His liability extends only to harm servant for 1 -n-ii ni- negligence done to strangers, not to harm miiioted by one o± his servants of fellow- on another of them. This rule, indeed, has been to a larg'e s^''™''*- extent abrogated by statute — the Employers' Liability Act, 1880 — but this Act does not ajjply to all trades or to all forms of accident, and the common-law principle is therefore still applicable in numerous instances. It is iri-ational, and it is to be regretted that the Legislature has not seen fit wholly to abolish it, instead of merely establishing a series of capri- cious exceptions to it. It was first applied in Priestly v. Fowler,^ and first definitely formulated in Hutchinson v. York avd Newcastle Rl A. C. 308. 6 Hedley v. Pitilcneii cf- Sons. (1894) A. O. 222; Wilson v. Merrv (1868), L. R. 1 H. L. Se. 326. SECT. 30] THE KULE OF COMMON EMPLOYMENT. 107 the corporation itself, rather than those of its serAants.' Otherwise a corporation avouIcI alwaj-s be exempted at common law by tiie rule of common employment from lia- bility to its own servants. The term fellow-servant also includes any person who, al G-ratuitous the request or with the permission of a servant or his master, "'^^'^ °'°'"^' gratuitously and temporarily assists the servant in his work . By such assistance he puts himself quoad hoc in the position of a fellow-servant of the ser\'ant assisted by him, and there- fore precludes himself from suing the employer for any harm resulting. Thus, in Degg v. Midlcmd Rly. Co.^ the servants of the defendant company were engaged in turning a truck on a turntable, when a stranger, noticing their difficulty in doing the work, voluntarily gave his assistance, and while doing so A-^as crushed and killed by an engine negligently driven by another senant of the company . It was held that the defendants were under no liability. On the other hand, if tlie person so injured while assisting the defendant's servants is not a mere volunteer, but is en- gaged in forwarding some business of his own in which those servants are engaged, he is no fellow-senant of theirs, and is entitled to hold their employer responsible for their negli- gence towards him. Thus, in Wright v. London and N.W. BIi/. Co.^ the plaintiff assisted the defendants' servants to shunt a hoi'se-box containing a heifer belonging to him, and while so engaged he was run over by a train, and it was held that the company ^^'as liable. In considering whetlier the servants concerned are servants of the same master it is important to remember and apply the rule already explained, that one man may lend his servant to another for a particular purpose, so as to make him quoad hoc the servant of that other, and therefore the fellow - servant of that other's servants. i" ' Seo Lennard's Currying Co. v. Asin/ic Petroleum Co., (1915) A. C. 705. 8 (1857), 1 H. & N. 773; see also Bans v. Ilendon Urban District Council (1912), 28 T. L. R. 317. 9 (1876), 1 Q. B. D. 252. " fiv-pra, s. 28 (6). 108 PARTIES. [chap. II. Common 5 _ The seconcl condition requisite for the exemption of the y™^" • master is that of common employment. It is not enough that tlie plaintiff was a fellow-servant of the pei-son by whose fault he was injured; it is necessary also that these two must have been engaged in common employment. It is not meant by this itliat their work must bfe identical in nature. Emijloy- ments are said to be common within the meaning" of this rule when they are so connected Avith each other that the risk of an accident due to the conduct of one of them is a natural inci- dent of the other, so that such risk must be deemed to have been in the contemplation of the servant when he undertook that other. This is so, for example, when two servants work at the same time and place at the same job; as when they are engaged together in lifting heavy weights. E\ en, however, when they are doing entirely different work, the mere fact that they are working together at the same time and place may be sufficient to make their employment common. If an accountant is engaged to keep' books in a dynamite factory his employers will be free from liability at common law if he is killed by an explosion due to the negligence of a fellow -servant engaged in the manufacture. Further, employments may be common even though they are conducted at different times and in different places, for they may be so connected that the safety of the one servant is committed to the care and skill of the other. The driver of a train, for example, is engaged in a common employment with the signalman who regulates the traffic, and with the superintendent who is resjoonsible for the re23air of the line, and with the engineer whose duty it is to see that the machinery and plant are in safe condition ; for he who under- takes to drive a train knows that he is intrusting his life to the care and competence of these fellow-servants, and has impliedly taken upon himself the risk of their default. " It is necessary," says Blaokbum, J., in Morgan, v. Vale of Neath Bly. Co.,'^^ "that the employment must be common in this sense, that the safety of the one servant must in the 11 (1864), 5 B. .V S. at p. 580. SECT. 30] THE RULE OF COMMON EMPLOYMENT. 109 oi'diiian' and natural course of things depend on the care and skill of the othei"s." If, on the other hand, the employments are not so connected, the master is responsible even at common law for harm done by one of his servants to the other. A domestic servant engaged in the house of a shopkeeper is not engaged in a common employment 'with the carman who drives the shop- keeper's cart. If she is run over in thestreet by the negligence of that carman, she will have a good cause of action against hea* employer; for the risk of such an accident is not a natural incident of domestic service, and the plaintiff would have been equally subject to that risk whether she had accepted service with her employer or not. So it has been held that seamen engaged on different ships belonging to the same owner are not in oomtnon employment. ^^ It is to be noticed, further, that the servant injured must Common have been engaged in the common employment at the time must exist of the accident; for otherwise the risk cannot be said to have ^^ *.™® °* accident. been an incident of that employment. If a conductor of an omnibus, while doing his work, is injured by the negligence of the driver, he will have no remedy against his employers; but if he is run down by the omnibus while he is crossing the street on a holiday granted to him by his employers, they "will presumably be liable to him.^^ foj. this purpose, however, a servant is engaged in his employment not merely while actually at work, but also while going to or from his work, so long as he is on his employer's premises or is using means of access provided by the employer and under his control.^* ^^ 6 . A master, although he is not responsible to his servant Master liable for the negligence of a fellow-servant, is yet responsible for ^"^^^ °^^ 12 The Fetrel, (1893) P. 320. 13 See Tunney v. Midland My. Co. (1866), L. E. 1 C. P. 291; Eutchinson v. Yorh and Newcastle Rly. Co. (1850), 5 Ex. p. 352. 1* CoUrich v. Partridffe, Jones ^ Co., Ltd., (1910) A. C. 77. 15 The nature of common employment is illustrated by tlie following" eases: Morgan v. V^jle of Neath Rly. Go. (1864), 5 B. & S. 570; Butchin- son V. York, #c. Rly. Co. (1850), 5 Ex. 343; Charles v. Taylor (1878), 3 O. P. D. 492; BartonshUl Coal Co. v. Reid (1858), 3 Macq. 266; BartonshUl Coal Co. v. McQuire (1858), 3 Macq. 300; The Petrel, (1893) P. 320; Burr v. Theatre Royal, Drury Lane, (1907) 1 K. B. 544. 110 PARTIES. [chap. ir. Absolute liability by statute. his own negligence; and for this purpose it is negligence to omit to use reasonable care in choosing competent and careful servants and in dismissing those who prove themselves in- competent and careless.^'' A corporation, thoug'h it cannot act except through its servants or agents, may nevertheless have personal negligence imputed to it within the meaning' of this rule . The negligence of the supreme governing authority of the corporation, or the negligence of officers to ■\^■hom its general powers have been delegated {e.g., the directors of a company), is in law the negligence of the coi-poration itself; and if one of its servants is injured thereby, his remedy against the corpora- tion is not excluded by the defence of common employment. ^^ 7. The defence of common employment is not oiDen to an employer when the cause of action against him is based, not on negligence, but on the breach of some absolute statutory duty independent of negligence. In Groves v. Wimlhrne^^ a master was accordingly held liable for an injury suffered by one of his servants through the absence of sufficient fencing around dangerous machinery, although there was no personal negligence on the master's part, and the fencing had been wrongfully removed by one of his other servants; for the statutory duty to maintain such fencing" was absolute. ^^ Statutory exceptions to rule of common employment. § 31. The Employers' Liability Act, 1880. 1 . This is a temporary Act, continued from time to time, by which a number of arbitrary exceptions are made to the rule of the common law that a master is not liable to his servants for the negligence of their fellow-servants. By this Act an employer is made liable to his servants in the fol- lowing five cases of personal injury: — (a) Injury caused by a defect in the condition of the ways, 16 Tarrant v. Webb (1856), 18 O. B. 797; Btitler v. Fife Coal Co., (1912) A. O. 149. " See, for example, Butler v. Fife Coal Co., (1912) A. C. 149. 18 (1898) 2 Q. B. 402. 1" See also David v. Britannic Merthyr Coal Co., (1909) 2 K. B 146- (1910) A. C. 74; Butler v. Fife Coal Co., (1912) A. C. 149; Watkins y. Naval Colliery Co., (1912) A. O. 693. SECT. 3l] employers' LIABILITY ACT, 1880. HI works, machinery, or plant connected with or used in the business of the employer, provided that the defect arises from or has not been discovered or remedied o^^ing to the negligence of the employer or of some person in his service intrusted with the duty of seeing that these things are in proper con- dition (s. 1, s-s. 1; s. 2, s-s. 1). (b) Injury caused by negligent superintendence on the part of any servant whose sole or principal duty is that of superintendence, and -sA-ho is not ordinarily en- gaged in manual labour (s. 1, s-s. 2; s. 8). (c) Injurj' caused by the negligence of any servant to whose orders the servant injured was bound to con- form, if the injury resulted from his having so conformed (s. 1, s-s. 3). (d) Injury caused by the act or omission of any servant in obedience to improper rules or by-la'n'S made by the employer, or in obedience to improper instruc- tions given by any person delegated with the au- thority of the employer in that behalf (s. l,s-s. 4; s. 2,s-s. 2). (e) Injury caused by the negligence of any servant having the charge or control of any signal, points, loco- motive engine, or train upon a rail'O'ay (s. l,s-s. 5). 2. A servant has no cause of action even in the foregoing Defences cases if any of the following circumstances exist: — Act. (a) If he knew of the defect or negligence which caused the injury, and failed within a reasonable time to give or cause to be given information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the defect or negligence (s. 2, s-s. 3). (&) If he has been guilty of contributory negligence — there being nothing in the Act to exclude this common4aw defence. ^ 1 ireblin v. Ballard (1886), 17 Q. B. D. 122. 112 PARTIES. [chap. II. Concurrent liability at common law. (c) If he has expressly or impliedly agreed to take the risk upon himself. A servant may expressly contract himself out of the Act, and he may also do so im- pliedly by undertaking or continuing the work with full knowledge of the danger incurred by him, under circumstances which prove as a matter of fact that he impliedly agreed to take this risk upon himself. In this case the doctrine of Volenti non fit injvjria is applicable. ^ 3. No action can be brought under this Act unless notice of the injury is given to the employer within six weeks, and unless the action is commenced within six months from the accident or, in case of death, within twelve months from the death. But in the case of death want of notice is no bar if the Judge is of opinion that there was some reasonable excuse for the failure to give notice (s . 4) . 4. Every action under the Act must be commenced in the County Court (s. 6), and the maximum amount recoverable is a sum equal to the estimated earnings of such a servant during the three years preceding the injury (s. 3). 5. The person injured must be a workman within the meaning of the Act, and this term includes (1) railway ser- vants, and (2) any person engaged in manual labour, other than domestic or menial servants (s. 8) . To servants of other kinds the common-law rule of common employment is still applicable in its fuU extent: for example, to an omnibus conductor, the driver of a tramcar, a shop assistant, a clerk, a seaman. 3 6. There may be concurrent liability both under the Act and at common law: as, for example, when the master has been guilty of personal negligence, or where there is no common employment; and in these cases the common-law remedy exists to its fuU extent, and is not cut down by the conditions and limitations of the statutory remedy. 2 Supra, =. 13 (4); Smith v. Baker, (1891) A. 0. 325. ^ Morgan v. London General Omnibus Co. (1884), 13 Q. B. D. 832; Cook V. North Metropolitan Tramways Co. (1887), 18 Q. B. D. 683; Euiitv. Gt. N. Hhj. Co., (1891)' 1 Q. B.601; Yarmouth y. France (1887), 19 Q. B. D. 647; Bound v. Lawrence, (1892) 1 Q. B. 226. SECT. 32] THE workmen's COMPENSATION ACT, 1906. H^ 7 . When the servant is killed instead of beinsr merely in- Liability . □, ./ when Bervaut jured, the right of his relatives and representatives is based killed. both upon the Employers' Liability, Act and upon the Fatal Accidents Act.* At common law there was a double defence for the master in such a case: first, the rule that the death of a person is not a cause of action (now excluded by the Fatal Accidents Act), and secondly, the rule of common employment (now excluded by the Employers' Liability Act). The claim in such a case, therefore, must conform to the requirements of both of these Acts . § 32. The Workmen's Compensation Act, 1906. By this Act employers have been made, in the cases to \^"hich it extends, the insurers of their servants against acci- dental injuries and death. The obligation of compensation is independent of any negligence on the part of employers or fellow-servants, and in strictness it stands outside the law of torts altogether. It is a statutory term of the contract of service, and one which, speaking generally, cannot be ex- cluded even by express agreement. The quasi-contractual liability thus created may be concurrent with delictal lia- bility either at common law or under the Employers' Liability Act; and in such cases the servant may elect between the various remedies available for him.^ § 33. Employers of Independent Contractors. 1 . As already indioated,i the general rule is that although Employers of an employer is responsible for the negligence and other contractors wrongdoing of his servant, he is not responsible for that of ^''^ '^°* ^^^ an agent who is not a servant but an independent contractor. (-ponBible for This general rule is subject, however, to a number of excep- ^^™- ^.^^^^^ tions, and although several of these will be appropriately oases of dealt with later in connection with particular classes of torts, respons^ibility. i Infra, Oh. XI. 1 Workmen's Compensation Act, 1906, s. 1 (2) (b), and a. 1 (4). 1 Supra, s. 28 (3). . ^ /' S. "' 8 114 PARTIES. [chap. II. Contractors employed to do illegal acts. Contractors negligently employed. it is advisable at this stage to take a general view of thia branch of the law. The tendency of legal development is in the direction of extending rather than restricting the vicarious liability of employei-s of independent contractors, and it is impossible therefore to state with any confidenoe the exact scope and limits of this form of responsibility. The following, however, are the chief cases in which, as the authorities at present stand, liability of this kind exists. 2. In the first place, the employer of an independent con- tractor is liable for any wrongful act authorised by the employer, and such authority may be either precedent or by way of subsequent ratification. 2 He who directs or ratifies the doing of a tortious act is in exactly the same legal position as if he had done it himself. Qui facit per aliiim facit per se. 3. In the second place, a person is none the less liable for his own negligence because the direct cause of the damage done may be the negligence of an independent contractor employed by him. If, therefore, I owe a duty of care I am not necessarily exempted from that duty by delegating the performance of it to an agent. The very act of such dele- gation may be itself an act of negligence — as when due care is not taken to see that the agent is properly qualified for the performance of the task so committed to him, or where proper instructions are not given to him in order to enable him to avoid the dangers incidental to the work. Thus in Robinson v. BeaconsfieM Rural Council,^ the defendant corporation, being under a duty to remove sewage from premises within its district, and having employed an inde- pendent contractor to do this work, was held responsible for the injurious act of that contractor in depositing the sewage by way of trespass on the plaintiff's property. So it is the duty of the occupier of premises to take due care that no nuisance is permitted to exist on those premises, and he is not excused for a failure to fulfil this duty by the plea that the existence or continuance of the nuisance was the fault of an Supra^ 26. (1911) 2 Oh. 188. SEOT. 33] EMPLOYERS OF INDEPENDENT CONTRACTORS. 115 independent contractor; for it was also his own fault.* As has already been pointed out,^ a similar rule restricts the exemption of an employer, under the rule of common em- ployment, from liability for injuries inflicted by one of his servants upon another. 4. In the third place, an employer is responsible for an Contractors independent contractor in all cases in which the act which ^"favSilaots the contractor is employed to do is one of the kind which which the em- tho employer does at his owti peril. In other words, where himself do at the act is one to which a rule of absolute liability applies — ^^^ "^^ "^'^• so that the existence of negligence is immaterial — it is no defence that the cause of the mischief w^as the negligence of an independent contractor by whose agency the act was done. Thus where the owner of a factory is under an abso- lute statutory duty to supply certain safeguards for his workmen — e.g., to guard dangerous machinery — he is equally liable whether the failure to perform this duty is the act of himself or his servants or is the act of an independent con- tractor to whom the duty was delegated by him.'^ Similarly, since he who keeps a wild beast is absolutely responsible for its escape, it can make no difference that its custody was committed to an independent contractor, by whose negligence its escape was permitted. '^ On the same principle a person from, whose land a destructive fire spreads to the land of his neighbour cannot defend himself by the plea that the direct cause of the mischief was the negligence of his agents. ^ 5 . In the fourth place, there are certain exceptional classes Employment of cases in which, although the act authorised to be done by only^on^terms an independent contractor is not in itself illegal, and is not °f vicarious the kind of act which is a ground of absolute liability inde- pendent of all negligence, nevertheless its delegation to such a contractor is permitted by law only on the terms that the employer shall be vicariously responsible for any negli- gence of which the contractor is guilty in the doing of it. ^ Infra, s. 70. ' Supra, s. 30 (6). 6 See Groves v. Wimborne, (1898) 2 Q. B. 402. '' Infra, 3. 128 (3). « Black V. Christchurch Finance Co., (1894) A. C. 48. 8(2) 116 PARTIES. [chap. II. Interference with right of support. Creation of daiifj^ers in a highway. The ,aot is of such a nature that the employer on whose behalf it is done is not permitted, in thus exposing other persons to danger, to defend himself from responsibility for the consequences by the plea that the agent selected by him for the doing of the ^dt was not a servant, but an independent contractor. As the authorities at present stand, there are at least two classes of cases in which this exceptional form of vicarious responsiTDality is recognised. (a) He who wilfully interferes with the support afforded by his land or buildings to the adjoining land or buildings of any person — e.g., by excavation or by the pulling down of a house — is bound to' take due oare that no subsidence or other mischief is thereby caused, and if any harm' is so done it makes no difference whether the negligence which caused it is the negligence of himself or his servants or that of a con- traotor employed by him to do the work.^ In Hughes v. PemivaP-^ it is said by Lord Blackburn, speaking of the duty to afford adequate support to adjoining buildings: "I do not think Ithat duty went so far as to require hini abso- lutely to provide that no damage should come to the plain- tiff's wall from 'the use he thus made of it, but I think that the duty went so far as to require himi to see that reasonable skill and care were exercised in those operations. If such a duty was oast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himSelf, and, if thej- so agreed together, to take an indembity to himself in case mischief came from that person not fulfilling the duty which the law oast upon the defendant; but the defendant still remained subject to that duty, and liable for the conse- quences if it was not fulfilled." (b) A second case of similar vicarious responsibilitj- is that in which a person employs a contractor to do in a high- way some dangerous act other than the ordinary use of the 9 Bower v. Peate (1876), 1 Q. B. D. 321: Dalton v. Annus (1881') 6 A. O. 740. ^ ^' 10 (1883), 8 A. C. p. 446. SECT. 3:3] EMPLOYERS OF INDEPENDENT CONTRACTORS. H"^ highway for the purposes o£ passage or traffic, or in which a person, having done such an act in a highway, delegates to a contractor the work of taking the precautions necessary to avoid mischievous consequences. Such employment or dele- gation is permissible only on the terms of warranting the public against the negligence of the agent so intrusted with the work. Thus, in Fenny v. Wimbledon Urban Council^^ the defendant corporation employed a contractor to repair a highway. In carrying out the work he negligently left upon the road a heap of soil unlighted and unprotected. The plaintiff walking along the road at night fell over this obstruction and was injured, and it was held that the defen- dant was responsible for the negligence of the contractor so employed. So in Holliday v. National Telephone Gom- pany^^ the defendant company was held liable on the same principle for the negligence of a servant of an independent contractor employed to do in a public street certain plumbing work which involved the dipping of a benzoline lamp into a cauldron of molten solder. The lamp was negligently used while in a dangerous condition of disrepair, and an explosion was thereby caused which scattered the solder in the air and injured the plaintiff, a passenger in the highway. So in Tarry v. AsMon^'^ the occupier of a house abutting on the street was held liable for injury caused to the plaintiff by the fall of a lamp suspended over the doorway, although he was guilty of no fault, the only negligence being that of an independent contractor whom he had recently employed to put the lamp in repair. So in Gray v. Pullen^^ the defen- dant, being the owner of a house adjoining the highway, lawfully employed a contractor to cut a trench in the road and to lay therein a drain connecting the house with the sewer. The contractor negligently and imperfectly filled in the trench, which subsequently subsided, and the defendant, - though guilty of no negligence, was held liable to the plain- 11 (1899) 2 Q. B. 72. 1^ (1899) 2 Q. B. 392. " (1876), 1 Q. B. D. 314. 1* (1864), 5 B. & S. 970. 118 PARTIES. [chap. II. Supposed general principle of liability for breach of delegated duties. tiff, a passenger in the highway, who suffered personal injuries by reason of this obstruction.!^ 6. In view of the tendency of the Courts to extend the responsibilities of employers of independent contractors, it cannot be said with any confidence that the foregoing are the only cases in which such responsibility exists. It is worthy of observation, however, that the general language frequently used in cases of this kind must be read in relation to the particular nature of the case under consideration and cannot be relied on as an authority for any general principle of responsibility. Thus it is often said that a person upon whom a duty is imposed by law cannot escape liability by delegating the performance of this duty to an independent contractor. 1^ It is to be observed, however, that if the duty is merely one of exercising due care, he on whom the duty is imposed does not in ordinary cases delegate his duty, but actually performs it, when he employs a competent indepen- dent contractor to do the work. If, for example, the duty of a person who desires to erect a building on his land is merely to take due care not to interfere with the support afforded to an adjoining building, the only effective way in which he can perform this duty is to intrust the building operations to a competent expert. To do the work personally instead of through such a contractor will be not due care, but negli- gence. He cannot be held liable, therefore, on the ground .that ho has delegated his duty instead of performing it per- sonally. The only logical reason that can be given for his liability is that the law has, on considerations of public policy, established in such cases an exceptional rule of vica- rious responsibility. The acceptance of any such general principle of liability for the non-performance of delegated duties would abolish altogether the distinction between ser- vants and independent contractors, and make a person liable in all cases when he gets someone else to act for him instead 15 See further as to liability for dangerous acts authorised to be done in a highway, s. 92, infra. 16 Hughes V. Percival (1883), 8 A. C. p. 446; Hardaker v. Idle District Council, (1896) 1 Q. B. 335. SKCT. 33] EMPLOYERS OK INDEPENDENT CONTEACTOKS. 119 of acting personally. If I choose to cart my own goods, I am under a duty to do so carefully; but if I choose to delegate the work to an independent contractor, I am not responsible for the negligence with which he does it. 7. Another general principle of vicarious responsibility Supposed which finds some support in iudicial dicta, but which would s^p^^l '^J^ •' ' ... pnnoip Ic o seem to be equally unsound, makes such responsibility de- vicarious pend on the dangerous character of the work so intrusted to danfferous"^ the contractor. Thus, in Bower v. Peate^'^ Cockburn, C. J., acts, says : ' ' A man who orders a work to be executed from which in the natural course of things injurious consequences to his neighbour must be expected to arise unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief and cannot relieve himself of his responsibility by employing someone else — whether it be the contractor em- ployed to do the work from which the danger arises or some independent person — to do what is necessary to prevent the act he has ordered to be done from becoming wrongful." It is pointed out, however, by Lord Blackburn in Hughes v. FercivaP-^ that this general proposition cannot be supported. There are few operations intrusted to an agent which are not capable, if due precautions are not observed, from being sources of danger and mischief to' others; and if vicarious responsibility, existed for this reason, the distinction between servants and independent contractors would be practically eliminated from the law. If I employ a contractor to manu- facture explosives for me, am I responsible if an explosion happens because of the negligence of his servants in the course of manufacture? It would seem clear, therefore, that the vicarious responsi- bility of the employers of independent contractors is not the outcome of any far-reaching general principle, but repre- sents merely a number of more or less arbitrary exceptions based on special considerations of public policy . " (1876), 1 Q. B. D. p. 326. " (1883), 8 A. C. p. 446. 120 CHAPTEE III. JUDICIAL REMEDIES. Remedies judicial and extra-judicial. Damasres. Injunction. § 34. Classes of Remedies for Torts. 1. Eemedies for torts are of two kinds, being either judi- cial or extra-judicial — remedies by way of an action at law, and remedies by way of self-help. The various forms of extra-judicial remedy, such as distress, the retaking of pro- perty, and the 'abatement of a nuisance, will be considered in the next chapter, and we are here concerned with the other class alone. 2. The remedies obtainable for a tort by means of an action at law are of three chief kinds — (1) damages, (2) in- junction, and (3) specific restitution of property. The first of these is the ordinary and essential remedy ; it is available as of right in all oases of tort. As we have already seien, a civil injury for which an action for damages will not lie is not to be classed as a tort, whatever other forms of process may be available. 3. An injunction is the order of a Court of justice direct- ing the defendant to abstain from the commission, continu- ance, or repetition of an unlawful act, or to do some act which he is legally bound to do — such an order being enforced by imprisonment (by way of attachment or committal for con- tempt) in case of disobedience. Injunction is a precautionary remedy against impending injury; damages are a remedy for an injury already suffered. Injunction is supplementary to the ordinary and essential remedy of damages, and is granted in the discretion of the Court in cases in which damages would not amount to adequate redress. Thus, in the case of a continuing nuisance the plaintiff can obtain not merely damages for the injury already suffered, but also an injunc- tion to prevent the continuance of it in the future. SECT. 34] CLASSES OF REMEDIES FOR TORTS. I'-^l 4. The third form of iudicial remedy is the specific resti- Specific restitution. tution of property. He who is wrongfully dispossessed of his land, for example, is entitled to recover, not the value of the land as damages, but the land itself; and a judgment in his favour will be executed by force if need be.^ So in the case of chattels wrongfully taken or detained the owner has the option of claiming either their value as damages, or specific restitution of possession. 2 This remedy of specific restitution is obviously very similar to that of injunction, but differs from it in two ways — {a) in its historical origin, injunction being a purely equitable remedy, available originally only in the Court of Chancery, while specific restitution was a remedy granted by the Courts of common law; (b) in its mode of execution, injunction being enforced by imprisonment for disobedience, while specific restitution is enforced by the forcible seizure of the property and its restoration to the plaintiff. § 35. Damages. 1. The damages recoverable for a tort are either nominal Nominal and or substantial. Nominal damages ore a small sum of money ^ama^es''' — ^for example, a shilling — awarded not by way of compensa- tion for any actual loss suffered, but merely by way of recognition of the existence of some legal right vested in the plaintiff and violated by the defendant. ^ Substantial damages, on the other hand, are those which are assessed and awarded as compensation for damage actually suffered by the plaintiff, and not merely by way of mere recognition of a legal right violated — injuria sine damno. Damages are not nominal merely because they are very small. If actual damage, however small, is proved, and 1 The plaintiff in such oases recovers not only tho land itself, but also damages for tlie loss suffered by him during the period of his dis- possession (mesne profits), and it is by virtue of this right to damages that the wrongful dispossession of land is correctly classed aa a tort. 2 As to specific recovery of land, see Chapter VI. on Dispossiession ; and as to the specific recovery of chattels, see Chapter X. on Conver- sion. 1 See The Mediana, (1900) A. 0. p. 116. 122 JUDICIAL REMEDIES. [chap. iir. General and special damaa-es. damages, however small, are awarded in respect o£ it, such damages are substantial in the legal sense, and not nominal. They represent damnum, and not merely injuria. It follows accordingly that nominal damages are recover- able only in the case of torts which are actionable per se, and that for isuch injuries nominal damages at the least are always recoverable. In the case of trespass to land, for example, although no damage whatever is suffered by the plaintiff, he has nevertheless a good cause of action, which must be recog- nised by the award of a nominal sum by way of damages. ^ 2. Damages are further distinguishable as being either general or special. General damages are compensation for general damage; special damages for special damage. This distinction relates to the law of pleading and procedure, rather than to the substantive law. General damage is that kind of damage which the law presumes to follow from the wrong complained of, and which, therefore, need not be expressly alleged in the plaintiff's pleadings. Special damage, on the other hand, is damage of such a kind that it will not be presumed by the law, and must therefore be expressly alleged in those pleadings, so that the defendant may have due notice of the nature of the claim — otherwise the plaintiff will not be permitted to give evidence of it, nor will the jury be at liberty to award compensation in respect of it. Thus, in an action for false imprisonment, general damages are recoverable in respect of the inconvenience, in- dignity, and discomfort so suffered by the plaintiff, for these are the natural and normal results which the law presumes to follow from an injury of this description. But if the 2olain- tiff has by his imprisonment been injured in his health or has suffered any specific pecuniary loss, this is special damage which must be expressly alleged and proved, otherwise com- pensation cannot be recovered in respect of it.^ 2 For examples of the award of nominal damages, see Hiort v. L. ^• N. W. My. Co. (1879), 4 Ex. D. 188; Northam v. Hurley (1853), 1 E. & B. 665; iSapirell v. Bass, (1910) 2 K. B. 486; Columhtis Co. v. Cloxves, (1903) 1 K. B. 244. '" As to the distinction between general and special damages, see Chitty on Pleading, Vol. I. 410, 7th ed. ; RatoUfe v. Evans, (1892) 2 SECT. 35] DAMAGES. 123 3. Damages are further distinguishable as being either Compensatory compensatory or exemplary The latter are also known as larydami^es. vindictive or pmiitive. Compensatory damages are awarded as compensation for, and are measured by, the material loss suffered by the plaintiff. Exemplary damages, on the other hand, are a sum of money awarded in excess of any material loss and by way of solatium for any insult or other outrage to the plaintiff's feelings that is involved in the injury com- plained of. Thus, an assault may do no physical harm what- ever; it maj' amount, for example, to a mere threat of vio- lence; yet if it is committed in such a manner or in such circumstances as to be a grave attack upon the dignity of the plaintiff, he may recover very substantial damages for it. So a trespass to land may be committed with such insolent defiance o^ the rights of the plaintiff that a jury will be justified in awarding heavy damages although no actual loss is proved. So in an action by a father for the seduction of his daughter, the only actual loss which gives him a right of action is the loss of his daughter's services; yet damages are not limited to the amount of this loss, but are awarded in respect of the injury to his parental feelings and personal dignity. Exemplary damages, therefore, are given only in cases of conscious wrongdoing in contumelious disregard of another's rights. In Merest v. Harvey,^ a case in which £500 was recovered for an insulting trespass accompanied by no material damage, it is said by Gibbs, C. J. : " Suppose a gentleman has a paved walk in his paddock before his window, and that a man intrudes and walks up and down before the window of his house, and looks in while the owner is at dinner, is the trespasser to be permitted to say, ' Here is a halfpenny for you, which is the full extent of all the Q. B. at p. 528; Mayne on Damages, p. 656, 8th ed. ; Sedgwick on Damages, Vol. IV. s. 1261, 9th ed. It is to be noted that the term " special damage " is also used in a different though closely related sense, as meaning such actual damage as must be proved to constitute a cause of action in the case of injuries not actionable per se. Thus it is said that slander is not actionable without proof of " special damage." As damage of this kind must be specially pleaded, it necessarily constitutes special damage in the other sense of the term also. * (1814), 5 Taunt. 442. 124 JUDICIAL REMEDIES. [CHAP. III. material damage I have done ' ? Would that be a compensa- tion ? I cannot say that it would be." It is often said that exemplary damages are awarded not by way of compensation for the plaintiff, but by way of punishment for the defendant. It seems more accurate, how- ever, to regard them as a solatium for wounded dignity and feelings: as a remedy for injuria, in the sense in which B,oman lawyers used that term. Wilful wrongdoing not amounting to injuria in this sense — for example, the wrong- ful detention of property — is no ground for exemplary damages. Neither is any evidence admissible as to the means of the defendant for the purpose of increasing or diminishing the damages to be awarded. ^ ^ Damages may 4. It sometimes happens that damage which is in itself include corri- -, ..... ,, ii-ii pensation for clajunum Sine injuria is caused by an act which, by reason damiinm sine gf gome other kind of damage also caused by it to the same person, is wrongful and actionable at the suit of that person. For example, a building which wrongfully obstructs the ancient lights of an adjoining building may at the same time obstruct other windows in that building which have not yet acquired legal protection. Similarly, an excavation which wrongfully removes lateral support afforded to adjacent land may at the same time cause damage by subsidence to a build- ing erected on that land but not yet entitled to a prescriptive right of support. In such cases the damages recoverable for the wrongful act include compensation for the whole loss BO caused, even though part of that loss is in itself damnum sine injuria.'^ "If an actionable wrong has been done to the claimant, he is entitled to recover all the damage resulting from that wrong, and none the less because he = Ket/se V. Kei/se (1886), 11 P. D. 100; HodsoU v. Taylor (1873), L. E. 9 Q. B. 79. s For mstanoes of the award of exemplary damages, see Merest v, Harvey (1814), 5 Taunt. 442; Sears v. Lyons (1818), 2 Stark. 317; EmUen v. Myers (1860), 6 H. & N. 54; HucUe v. Money (1763), 2 Wils. 205; TuUidge v. WaAe (1769), 3 Wils. 18; Bell v. Midland My. Co. (1861), 10 O. B. (N. S.) 287. Exemplary damages are not allowed in i actions for breach of contract save in the exceptional ease of breach bf promise of marriage. Addis v. Gramophone Co., (1909) A. C. 488. 7 London, Tilbury # Soutliend My. Co. (1889), 24 Q. B. D. 326; Stroyan v. Knoivles (1861), 6 H. & N. 454. SECT. 36] REMOTENESS OF DAMAGE. 125 would have had no right of action for some part of the damage if the wrong had not also created a damage which was actionable. "s In other words, damnum sine injuria, although not itself a cause of action, may be a sufficient ground for damages in a claim based on some other indepen- dent cause of action.^ § 36. Remoteness of Damage. 1 . Even when the defendant has committed a wrongful A wrongdoer not liable for all damag-e &■' act (whether wilful, negligent, or of absolute liability) he is not responsible for- all damage that is caused by it, but only caused by p . " his act. (o) Damage which he intended; and (6) Damage which is the natural and probable conse- quence of the wrongful act. All other damage is said to be too remote. We have already seen that the law does not adopt the principle that a man acts at his peril and must pay compensation for all damage which in fact results from his actions, even by way of inevitable accident. Nevertheless it might be supposed that in the case of illegal acts the rule would be different, and that he who wilfully, negligently, or otherwise breaks the law should do so at his peril, and should be responsible for all damage which he actually causes thereby to other persons. Yet it is not so. Responsibility for wrongful acts is not un- limited, but is confined by the present rule as to remoteness of damage to certain forms of resulting harm.^ 2. This rule of limited liability does not apply only to Wronosof those wrongs which depend upon the existence of wrongful jjabHity intent or negligence, but applies equally to those exceptional instances of absolute liability in which mens rea is not re- quired. Thus, he who keeps cattle is absolutely liable if they 8 Sorton V. Colwyn Bay Urban Council, (1908) 1 K. B. p. 341, per Buckley, L. J. 9 See also Griffith v. Richard Clay i Sons, Ltd., (1912) 2 Oh. 291; Brown v. Robins (1859), 4 H. & N. 186; Jackson v. Watson ^ Sons, (1909) 2 K. B. 193 (damagies for the death of a human being). 1 Sharp V. Poxoell (1872), L. R. 7 C. P. 253. 1:^6 JUDICIAL REMEDIES. [cHaP. III. Measure and existence of liability dis- tinguished. When is damage too remote ? When is damage natural and probable ? escape from his custody and trespass on another's land; yet ho is not liable for all the damage -which they may do while so trespassing, but only for that which is not too remote within the meaning of the foregoing rule.^ 3. When the wrongful act of the defendant is actionable pe,r se, the rule of remoteness determines the measure, of liability, though not the existence of it. When, on the other hand, the wrong is not actionable without proof of actual damage, the rule of remoteness determines not merely the measure of damages, but also the existence of the cause of action. If all the damage proved is too remote, the de- fendant is under no liability at aU. 4. Damage is too remote if it is neither the intended nor the natural and probable result of the wrongful act. Every man is responsible for damage which he intended to result and which did result from his wrongful act, however im- probable it may have been. Every man is also liable for the natural and probable results of his wrongful act, even though not intended by him. But no man is liable for consequences neither intended nor probable. ^ 5 . Damage is said to be natural and probable when it is so likelv to result from the defendant's act that a reasonable 2 Cox V. Burbklge (1863), 13 C. B. (N. S.) 430; Sanders v. Teape. (1884), 51 L. T. (N. S.) 263. ^ It is sometimes said that a person is presumed in law to intend the natural and probable results of his acts. (See R. v. Harvey (1823), 2 B. cS: C. p. 264.) Such a form of statement, however, is useless and misleading. So far as it is true at all, it is simply an improper way of saying that a person is responsible for the natural and probable con- sequences of his acts, whether he intended them or not. Commonly it makes no difference whether a consequence was intended or not, pro- vided that it was natural and probable; for the same liability exists in each case. But there are exceptional instances (many of them in the criminal law, and some also in the law of torts) in which the distinction becomes important — a defendant being liable for intended consequences, but not for others. In such oases the alleged presumption does not exist, and in all other cases it is unnecessary. The only constructive intent really known to the law is in those branches of the criminal law in which conscious negligence amounting to reckless disregard of consequences is imputed to the defendant as an Intention to produce those consequences ; as in the case of murder, and of malicious injury to person or property. See s. 4 (1), n. 4. In other cases the probabOity of a consequence may' be evidence that it was intended, but there is no legal presumption to that effect, either rebut- table or conclusive. SECT. 36] RKMOTENESS OF DAMAGE. i^'' man, in the circumstances of tlie defendant and with the defendant's knowledgie and means of knowledge, would have foreseen and avoided it. "No doubt," says Bovill, C. J., in S%a):p v. PoweU,^ "one who commits a wrongful act is responsible for the ordinary consequences which are likely to result therefrom; but, genexally speaking, he is not liable for damage which is not the natural or ordinary consequence of such an act, unless- it be shown that he knows or has reasonable means of knowing that consequences not usually resulting from the act are by reason of some existing cause likely to intervene so as to occasion damage to a third person . Where there is no reason to expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the damage probable, if injury does result to a third person it is generally considered that the wrongful act is not the proximate cause of the injury so as to render the wrongdoer liable to an action." So in Greenland v. Chaplin,^ Pollock, C.B., suggests as the true rule " that a person is expected to anticipate and guard against all reasonable consequences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur." So in Lynch v. Knight,^ Lord Wensleydale saj^s: "To make words actionable by reason of special damage the conse- quence must be "such as . . . might fairly and reasonably have been anticipated and feared would follow."^ 6 . The rule as to remoteness of damage is in truth merelj^ Remoteness a special application of the general requirement of me)ts yea and mem rea. as a condition of liability in tort . No one is to be held liable for any damage except that which he intended to do or might have foreseen and avoided by due care. The same principle which determines whether the defendant has com- mitted any wrongful act at all determines also, in cases where a wrongful act has been committed, the limit of his responsi- bility for the consequences of it. 1 (1872), L. B. 7 C. P. p. 258. 5 (1850), 5 Ex. p. 248. « (1861), 9 H. L. C. p. 600. 7 See also Cory # Sons v. France, Fenwick ^ Co., (1911) 1 K. B. J. 122. 128 JUDICIAL REMEDIES. I CHAP. III. This explanation is not inconsistent with the fact that in cases of absolute liability, in which the requirement of mens rea does not exist, the rule as to remoteness of damage is still applicable. A person is held absolutely liable for a certain event — for example, the trespasses of his cattle; but he is not liable for the conseqiidnoes. of that event, unless they are natural and probable — i.e., .unless they are of such a nature that they would be anticipated by a reasonably careful person as likely to ensue from such an event. The question of negligence and that of remoteness of damage are therefore essentially the same, and where the cause of action is itself based on negligence it is not always easy to keep them distinct. This being so, it is not sur- prising to find a certain amount of confusion in the books, and it is often difficult to determine whether the real question in a decided case is one as to the sufficiency of the proof of negligence or one as to the remoteness of damage. There is never any genuine question of remoteness unless it is first proved or admitted that the defendant has committed some wrongful act (whether one of negligence or not), and the question then arises whether the resulting damage or some particular portion of it is sufficiently connected with that act. Thus, when the defendant driving a carriage runs over the plaintifi and breaks his leg, the question is one as to the sufficient proof of negligence, and not one of remoteness of damage. But when the defendant, by his proved or admitted negligent driving, has put the plaintiff in such danger that in endeavouring to escape he is run down and injured by another vehicle, the driver of which is also negligent, the question is no longer one as to the negligence of the defen- dant, but one as to the remoteness of the damage. These two questions are generically the same, though specificaUy different, and they are to be answered by the application of the same fundamental principle — viz., by the comparison of the defendant's conduct with that of an ordi- narily reasonable and careful man. The essential question in each case is. What would such a person have known and foreseen and done had he been placed in the same circum- stances as the defendant? SECT. ;36j UEMOTENKSS OF DVMAGli. 129 7 . Attempts have sometimes been made to explain the rule Other of remoteness of damage as based on a distinction between of the rule of different kinds of causes or modes of causation . Thus, it has '■e^ot'^n^ss. been said that the wrongful act of the defendant must be the caiiJiii pro.rima of the damage, and not merely the causa remoUt. Similarly we find a distinction drawn between caiisi! caiiscni-s and causa sine qua non, or between cause and occasion, or between direct and indirect cause. ^ At other times we find that the test adopted is the existence of an uninteiTupted chain of causation, and the liability of the defendant is said to extend to all consequences which his act produces, until the chain of causation is broken by the intervention of some new and independent activity.^ None of these attempted explanations seems to possess any logical or legal validity. The only ma,terial and compre- hensible difference between one consequence and another is a difference in probability, and the only practicable measure of the requisite degree of probability is to be found in the knowledge and foresight of a reasonably careful or prudent man. 8. Damage may be natural and probable although one of Probable the intervening links in the chain of causation may be ex- ca^efln tremely improbable; for if it is likely that the damage will improbable happen in some way, it makes no difference that the way in which it does actually happen is an unlikely one. " If a man," says Kennedy, J., in Lhdieu v. White,^'^ "is negli- gently run over or otherwise injured in his body, it is no answer to the sufferer's claim for damages that he would have suffered less injury or no injury at all if he had not had an unusually thin skull or an unusually weak heart." For it is 8 In Bailiffs of Romney Marsh v. Trinity House (1870), L. R. 5 Ex. p. 208, Kelly, 0. B., says: "The rule of law is that negligence to render the defendants liable must be the causa causans, or the proximate cause of the injury, and not merely a causa sine qua non." In Sneesby v. L. # y. Rly. Co. (1874), L. R. 9 Q. B. p. 268, Quain,.J., says, " In tort the defendant is liable for all the consequences of his illegal act, where they are not so remote as to have no direct connection with the act, as by the lapse of time, for instance." 8 Beven on Negligence, I. p. 88, 3rd ed. The whole matter has been the subject of able and exhaustive examination by Mr. Jeremiah Smith in the Harvard Law Review, xxv. pp. 103 et seq. and 223 et seq., " Legal Causes of Action in Tort." " (1901) 2 K. B. p. 679. s. 9 130 JUDICIAL REMEDIES. [chap. III. Alternative forms of damage. Functions of Judge and jury in questions of remoteness. sufficiently probable in itself that a man run over m the street will suffer from a fractured skull or come to his death, and the fact is irrelevant that in this particular case the event was induced by a very improbable circumstance. But, on the contrary, if I unlawfully but without violence lay my hand on another's shoulder, and by reason of heart-diseaso he is killed by the start which he so receives, it is submitted that his death is damage too remote, and that I am not civilly liable for it ; for here it is not merely the means but the end itself which is improbable. 9. Damage may be very improbable in itself and yet be only one of a large number of alternative forms of damage, one or other of which is certain or likely to happen; and in such a case all of these alternatives, by reason of the fact that they are alternatives, are sufficiently natural and probable to be a ground of liability. If I throw a stone into a crowd of a thousand persons, the chances are a thousand to one against hitting any particular individual, yet in an action brought by one whom I did hit, I could not raise the defence of remote- ness of damage. 10. Whether the damage complained of was the intended or natural and probable result of the defendant's act is a question of fact for the jury, but whether there is any reason- able evidence of its being so is a preliminary question of law for the Judge. It is for the Judge to decide whether the damage is such as could reasonably be held by a jury to be the natural and probable consequence of the defendant's act. If he holds that it is not, he must either withdraw the case from the jury altogether, or direct them as a matter of law that the damage in question is too remote to be taken into account in estimating damages. ^^ If, on the other hand, he holds that there is reasonable evidence to go to the jury that the damage was the natural and probable result of the 11 Where damage is essential to the cause of action, and the only damage alleged is on the face of the pleadings too remote in law (that is to say, not fit to be left to a jury), the objection of remoteness maybe taken as a point of law arising out of the pleadings, and judgment given for the defendant. Otherwise the case must go to trial. Oobb v. Gt. W. Rly. Co., (1893) 1 Q. B. 459; Speake v. Hughes, (1904) 1 K. B. 138. SECT. 36] KEMOTENESS OP DAMAGE. I'^i defendant's act, he must leave the question to them as one of fact; and they are at liberty to find either tliat it was or "was not such a consequence, and to determine the existence or the extent of the defendant's liability accordingly. It is not the function of the Judge to decide the quasi ion of fact whether the damage was or was not an intended or a natural and probable consequence, any more than it is his function to decide whether the conduct of the defendant was or was not negligent. "I think," says Bovill, C. J., in Smith v. London tf S. W Rly. Co.,^- "it is impossible to say that there was not evidence from which a jury might be justified in concluding that there was negligence as regards the plain- tiff, and that the destruction of the cottage in which the plaintiff's goods were was the natural consequence of their negligence. What the defendants' servants ought as reason- able men to have contemplated as the result of leaving the cuttings and trimmings where and as they did must depend upon all the circumstances. It is not, however, for us to decide whether the injury complained of was a probable consequence of the conduct of the defendants' servants. It is enough for us to say that there was evidence for the jury; and they having found for the plaintiff, Ave cannot interfere." To put the matter in another way, we may say that damage Remotene.«s may be too remote either in law or fact. It is too remote in '"J'^^^nd •^ _ 111 laot. law if it is so remote that no reasonable jury could honestly hold that it was the natural and probable result of the defen- dant's act; and in such a case the Judge must give judg- ment for the defendant, or direct the jury as a matter of law to take no account of that head of damage. On the other hand, it is too remote in fact when the jury are of opinion, on the case being submitted to them, that it was not the natural and probable result of the defendant's act. If the damage is too remote either in law or fact, the plaintiff cannot recover. 11. The following illustrative cases exhibit the operation illustrative of the law on this matter: — Cobb V. Gt. W. Rly. Co.^^ The defendant company was 32 (1870), L. R. 5 0. P. at p. 107. 13 (1893) 1 Q. B. 459; (1894) A. C. 419. 9(2) JUDICIAL REMEDIES. [CHAP. III. guilty of negligence in allowing a railway carriage to be overcrowded, in consequence of which the plaintiff, a passenger, was hustled and robbed. This damage was held to be too remote in law, for the only natural result of over- crowding is inconvenience to passengers, not robbery. Speake v. Hughes M An action of slander was brought in respect of a statement made to the plaintiff's employer that the plaintiff had removed from his house without pay- ing arrears of rent to his landlord, in consequence of which statement the plaintiff had been dismissed from his employ- ment. The damage was held too remote in law. Glover v. London d S. W Rly. Co.^^ The company's servants illegally ejected the plaintiff from a railway carriage, whereby he lost a pair of opera-glasses which he left behind him in the carriage. The loss of the glasses was held to be a consequence too remote in law. Sharp V. Powell. ^^ The defendant, in breach of a statu- tory prohibition, washed his van in a public street, and allowed the water to run along the gutter. Owing to a severe frost the entrance to the sewer down which the water would otherwise have run was obstructed by ice, and the water spread over the street and there froze, and the plain- tiff's horse fell upon it and was injured. The defendant had no knowledge of the danger thus created by him. It was held that the damage was too remote in law.^^' Clark V. Chambers .^^ The defendant illegally obstructed a highway by placing in it a horizontal bar armed with iron spikes. Some third person, desiring to pass along the road, removed the obstruction and negligently placed it in an upright position on the footpath. The plaintiff, walking there on a dark night, came into contact with the obstruc- tion, and one of the spikes entered his eye. The damage was 11 (1904) 1 K. B. 138. 15 (1867), L. E. 3 Q. B. 25. 16 (1872), L. R. 7 C. P. 253. 1' It may, perhaps, be doubted whether in this case the Court did not take too narrow a view of the matter. That water discharged into the street in a. bitter frost should freeze there would scarcely seem to be such an unprecedented occurrence that no jury should be allowed to find a defendant to blame for it. 18 (1878), 3 Q. B. D. 327. SECT. 36] REMOTENESS OF DAMAGE. held to be not too remote in law, notwithstanding the fact that an intervening link in the chain of causation was the negligent act of a third person. Smith V. TAindon <(' ■S'. W RIij. Co.'^^ The servants of the defendant company, during exceptionally dry weather, cut the grass and hedges along the line, and left the cuttings lying there in heaps for a fortnight. A spark from a passing train ignited these cuttings, and a high wind sprang up and carried the fire across a stubble field and a public road to the plaintiff's cottage, situated 200 yards from the railway It was held by the Court of Common Pleas that the damage was not too remote.-'' Burroics v. March Gas Co.^^ The defendant company negligently allowed gas to leak from a gas-pipe fitted up by them in the plaintiff's shop, and a gasfitter employed by the plaintiff to repair the leak negligently approached it with a lighted candle in his hand, whereupon an explosion occurred which damaged the plaintiff's property It was held that the plaintiff had a good cause of action against the gas company. Halestrap v. Gregory .^'^ The plaintiff's mare, entrusted to the defendant, escaped by the latter's negligence from the field in which it was into an adjoining field occupied by certain cricketers. The cricketei-s attempted to drive it back through the gate into its own field, and in endeavouring to avoid this compulsory return it ran against a wire fence surrounding the field and was injured. It was held that this damage was not too remote a consequence of the defendant's negligence in allowing the mare to escape. -^ 19 (1870), L. R. 5 C. P. 98; 6 C. P. 14. 20 On appeal to the Court of Exchequer Chamber (L. R. 6 C. P. 14) this decision was affirmed, but the reasons given by Channell, J., and Blackburn, J., are, it is submitted, such as would, if correct, eliminate the doctrine of remoteness of damage altogether. " When it has been once determined," says Channell, J., " that there is evidence of negli- gence the person guilty of it is equally liable for its consequences whether he could have foreseen them or not." For observations to the like effect, see S.M.S. London, (1914) P. 72. 21 (1872), L. R. 7 Ex. 96. 22 (1395) 1 Q. B. 561. 2'> For other authorities on remoteness, see M'Mahon v. Field (1881), 7 Q. B. D. 591; Hobbs v. London # S. W. Mhj. Co. (1875), L. R. 10 134 JUDICIAL REMEDIES. [chap. III. Intervening act of third person. Intervening act of wilful wrongdoing. Exceptions to rule of remoteness. 12. Damage is not necessarily too remote in law merely because the wrongful act of some third person has inter- vened as one of the links in the chain of causation between the wi'ongful act of the defendant and the damage in question. If A is guilty of negligence and so causes harm to B, it is no defence that the harm would not have happened had not C been negligent also; and this is so whether the negligence of C is earlier or later than that of A, or simultaneous with it. In other words, the contributory negligence of a third person is no defence . An example of the rule is a collision between two vehicles, due to the combined negligence of both drivers and causing damage to a passenger in one of these vehicles. He has a good cause of action against either of the drivers. 2* It will be noticed that several of the illustrative cases already cited as to remoteness of damage in general are examples of the present rule. In Clark v. Chambers-'-' and Burrows v. March Gas Co.-'' it was no defence that the damage would not have haiDpened had not some third person been guilty of negligence also. Docs the same rule apply when the intervening and con- tiibutorj- act of the third person is not a mere act of negli- gence, but one of wilful wrongdoing? There seems no reason in principle why it should not. It cannot be laid down as a mattei' of law that damage caused by the wilful wrongdoing of a third person can never be the natural and probable result of a wrongful act done by the defendant. If by reason of a false and malicious libel published by A in reference to B, B is assaulted by C, it maj' very well be that this result was natural and probable in fact, and there is no reason why it should be deemed too remote in law. 2'' 13 . The rule as to remoteness of damage has no application to those cases in which a defendant has wrongfully taken Q,. B. Ill (serf 5".); Sailiffs of Somiini/ Marsh v. Trhiily House (1870), L. B. 5 Ex. 208; 7 Ex. 247; Sneesby v. L. S; Y. Rhj. Co. (1874), L.E. 9 Q. B. 263; 1 Q. B. D. 42. 2i The Bernina (1888), 13 A. C. 1. 25 (1878), 3 Q. B. D. 327. 26 (1872), L. R. 7 Ex. 96. -' See Lynch v. Knight (1861), 9 H. L. C. at p. 600, per Lord Wensleydale; Bowcn v. Hall (1881), 6 Q. B. D. p. 338, per Brett, L. J.; He la Bere v. Pearson, Ltd., (1908) 1 K. B. 280. Of., however, Vicars v. IVilcocTcs (1806), 8 East, 1. SECT. ;36] EKMOTENESS OF DAMAGK. 1^^ possession of or otherwise dealt with property in such a manner that it is now at his risk. In such a case he is responsible for any resulting loss, destruction, or damage of that chattel, however remote that consequence may be. Thus, in Hiort v. Bott-^ the defendant wrongly delivered the plaintiff's goods to a third person, to be taken back to the plaintiff, and was held responsible for their misappropriation by the person to whom he so delivered them. So in Lilley v. Doiibleday^^ a bailee, who ought by the terms of his con- tract to have kept the goods in one building, kept them in another, which was burned down; and he was held liable for the destruction of the goods, although the one building was as safe as the other. So by the Sale of Goods Act, 1893, s. 20, a vendor who is guilty of delay in delivering the chattel after the property in it has passed to the buyer keeps it at his own risk, and is responsible for any loss, however improbable, unless it certainly would have happened in any event. § 37. Successive Actions on tlie same Facts. 1. More than one action will not lie on the same cause of AH damages action; therefore all damages resulting from the same cause g^'i^^"'^ of action must be recovered at one and the same time. The action must rule is designed to prevent the oppressive and vexatious liti- j^ one action, gation that might result if an injured person were at liberty to divide his claim and sue in successive actions for different portions of the loss sustained from a single cause of action. Thus, in Fitter v. Veal^ a plaintiff, after recovering damages for an assault and battery, discovered that his in- juries were more serious than was at first supposed, and he found it necessary to submit to a surgical operation; where- upon he brought a second action for the additional damage. But it was held that he had only one cause of action, which had been wholly extinguished by the judgment recovered 28 (1874), L. R. 9 Ex. 86. 29 (1881), 7 Q. B. D. 510. See also Davis v. Garrett (1830), 6 Bing. 716. 1 (1701), 12 Mod. 542. 186 JUDICIAL REMEDIES. fcHAP. III. Aliter when two causes •f action. Violation of distinct rights. in the first action. On the same principle, judgment re- covered dm'ing an injm'ed person's lifetime is a bar to a subsequent action by his representatives under the Fatal Accidents Act tf he dies of the injury.- Similarly, an action by a master for injury to his servant, per quod scrmtiiim mnisit, is a bar to any further action by the master for a continuance of that loss of service due to the same injury.-^ The application of this rule is not excluded or affected by the fact that when the first action was brought the damage in respect of which the second action is brought had not yet accrued, or was unknown to the plaintiff.* 2 . Where, however, there are two distinct causes of action, and not merely two distinct heads of damage, successive actions will lie in respect of each of them. This happens in at least three classes of cases: — (a) When the same act amounts to a violation of two dis- tinct rights; {h) When the defendant has committed two distinct acts, even though in violation of the same right; (c) When the cause of action is a continuing one. 3. When the wrongful act of the defendant has violated two distinct rights vested in the plaintiff, a separate action will lie to recover the damage suffered in respect of each of these rights. Thus, in Brimsden v. Humphrey'-' the plaintiff, a cabdriver, having already recovered compensation in the County Court for damage done to his cab by a collision with the defendant's van, was held entitled by a majority of the Court of Appeal to bring a second action in the High Court in respect of personal injuries suffered by him in consequence of the same accident. " The collision," says Brett, M. E,.,*^ " with the defendant's van did not give rise to only one cause of action; the plaintiff sustained bodily injuries, he was in- jured in a distinct right, and he became entitled to sue for a ' Read v. Great E. Ely. Co. (1868), L. R. 3 Q. B. 555. 3 Hodsoll V. Stallebras (1840), 11 A. & E. 301. See also Clarl-e v. Yorhe (1882), 47 L. T. 381 (fraudulent misrepresentation). * 'Fitter v. Veal (1701), 12 Mod. 542; Read v. Great E. Sli/. Co. (1868), L. E. 3 Q. B. 555. 5 (1884), 14 Q. B. D. 141. « Ibid, at p. 145. SECT. 37] SUCCKSSIVE ACTIONS. I' xe and successive actions will lie de die hi diem until the defendant those action- chooses to relieve himself from this burden of litigation by prooHf^ °" discontinuing his wrong. If, on the other hand, a continuing damage, injurj- is of a kind which is actionable only on proof of actual damage, and the damage caused is intermittent, as in the case of withdrawal of support, a new action will lie only when some new damage accrues. Thus, in Shadwell v. Hutchinson^"' it was held that successive actions would lie for an obstruction of the plaintiff's window caused by the defendant's building. So in Battishill v. Reed^^ it is said: " AVhere an action has been brought for erecting and leaving a building on the plaintiff's land, a fresh action will lie for continuing it there, and action after action may be brought ' until it is removed." Accordingly, in Boivycr v. Cook^^ the plaintiff first sued the defendant for placing certain .stakes upon his (the plaintiff's) land, and then successfully sued him a second time for leaving them there.-" 8. A continuing injury to proijertj' is actionable at the A"''™"! °^ suit of a plaintiff whose title did not accrue until after the commencement of the injury, and such a plaintiff may recover damages in respect of the continuance of the act since the accrual of his title. Thus, he who buys land maj sue for a continuing trespass or nuisance which existed at the time of his purchase.-^ IS West Leigh Colliery Co. v. Tunnicliffe cf Hampson, Ltd., (1908) A. C. 27. This case and that of the Larley Main Colliery Co. sufficiently illustrate the undoubted rul« as to the measure of damages in con- tinuing injuries. It is, however, a matter of some doubt whether the withdrawal of support is really a true case of continuing injury at all, and whether the possibility of successive actions for successive sub- sidences is not rather to be explained on a different pi'inciplc. Vide> infra, s. 37 (10), and =. 79. " (1831), 2 B. & Ad. 97. 18 (1856), 18 O. B. p. 716. " (1847), 4 C. B. 236. 20 See also Crumble v. Wallsend Local Board, (1891) 1 Q. B. 503; Thompson v. Gibson (1841), 7 M. & W. 456; Whitehouse v. Felloioes (1861), 10 C. B. (N. S.) 765. 21 Hudson V. Nicholson (1839), 5 M. & W. 437. commence- ment of injury. 140 JUDICIAL REMEDIES. [chap. III. Damages in lieu of injunction include future damage. SucceSRive actions for wrongs actionable only on proof of damage. 9. Notwithstanding the foregoing rules as to the measure of damages in continuing injuries, when an action is brought for an injunction against such an injury, and damages are given in substitution for an injunction in pursuance of the Court's discretionary powers in that behalf, such damages are given in full satisfaction for all future damage which may arise from a continuance of the injur)' complained of, and therefore no subsequent action will lie in respect thereof. By Lord Cairns' Act'- discretionary jurisdiction was con- ferred upon the Court of Chancery, in all cases in which it had power to grant an injunction, to award damages " either in addition to or in substitution for such injunction." Although this Act is now repealed, the jurisdiction so created is still retained. 23 Damages so given in substitution for an injunction have reference to the future, and not to the past merely, and they therefore amount to the legalisation of the further continuance of the act complained of — a purchase by the defendant of the right to go on doing it.^-t 10. We have considered three distinct cases in which there is more than one cause of action, and therefore in which more than one action will lie — viz., (1) when more than one right has been violated, (2) when more than one wrongful act has been committed, and (3) when the injurj- is a continuing one. There remains, however, a fourth case, as to which there is no adequate authority, and as to \\hich the law must be regarded as unsettled. Where the act of the defen- dant is actionable per se, there is no doubt that all damage, both actual and prospective, may and must be recovered in one action, for there is only one cause of action, and the damage done is relevant only with respect to the measure of damages — as, for example, in libel. But where the act of the defendant is not actionable per se, but is actionable only if it produces actual damage, and it produces damage twice at different times, is there one cause of action, or are 22 21 iL 22 Vict. c. 27, s. 2. -'^ 46 & 47 Vict. o. 49, s. 5. ^^ Fritz V. Ilobson (1880), 14 Ch. D. p. 548; Chapman. Moisoiis cf Co. V. Aiicl-Iniid Union (1889), 23 Q. B. D. p. 298; Holland v. Worley (1884), 26 Ch. D. 578; Dreyfus v. Prriiri^a, auaiw Co. (1889), 43 Ch. D. p. 342; Martin v. Price, (1894) 1 Ch. 276. yiiCT. a;] SUCCESSIVE ACTIONS. 141 there two? If, for example, by reason of a slander (which IS not actionable per sc) the person defamed loses his employ- ment with A, and, after obtaining subsequent employment with B, loses that employment also, has he a single cause of action for tlie total damage so suffered by him, or a separate cause of action for each head of damage? Or if, by reason ol' a fraudulent misrepresentation made to him, he to-day acts in reliance on it and suffers loss, and to-morrow acts again in reliance on it and suffers a distinct and additional loss, has he suffered one legal injury or two? Or if the defendant b} an act of negligence has created a source of danger which on two successive occasions causes personal harm to the plaintiff, is the plaintiff barred from recovery for the second harm because he has already recovered damages or accepted compensation for the first? From what date in each case does the Statute of Limitations commence to run — from the date of the first damage as to the entire claim or separately from the respective dates of each damage? On principle ; it would seem that in such cases each head of damage con- stitutes a distinct cause of action. For the cause of action does not consist merely of the act of the defendant per se, but consists of that act combined with the damage caused by it. If, therefore, the act causes damage twice, a cause of action must have arisen twice. The opposite conclusion would have the anomalous result that a plaintiff could recover compensation for future damage (which may never actually ensue) in an action based upon an injury which is not actionable unless it actually causes damage. A trifling- amount of actual damage would serve as a basis on which an action could be founded for the recovery of heavy damages for possible losses in the future. Surely if actual accrued damage is a necessary element in the cause of action, this is the only kind of damage that can be taken into account in respect of the measure of damages. If prospective damage cannot be sued for by itself, can it be sued for merely because it happens to be associated with some other damage which has actually accrued? And if it cannot be so sued for, it follows that when it does accrue it constitutes a new cause of 142 JUDICIAL REMEDIES. [CHAP. III. action for which a new action will lie. How then do the authorities stand in the matter? In Darley Main Colliery Co. V. MitcheW^ it was held that successive subsidences of land, due to the same act of excavation, constituted distinct causes of action for which successive actions would lie. Lord Bramwell bases his opinion in this case expressly on the ground that where an act is not actionable without proof of actual damage, the rule that all damage resulting from the same act must be recovered in the same action does not apply. " I now come," he says, 26 " to the case of where the wi'ong is not actionable in itself. In such a case it would seem that, as the action was only maintainable in respect of the damage, or not maintainable till the damage, an action should lie every time a damage accrued from the wrongful act." The judgment of Lord Halsbury apparently proceeds on the same principle.-' This case, however, cannot be regarded as a conclusive authority, because it is capable of another interpretation; the withdrawal of support may bf regarded as a continuing injury actionable from time to time as new damage from time to time accrues from it. This is the view taken of the case by Bowen, L . J . , in the Court of Appeal. 28 There are, however, serious difficulties involved in this explanation. As pointed out by Lord Blackburn in his dissenting judgment,-^ if the withdrawal of support is a continuing injury, the occupier for the time being of land on which an excavation has been made by his predecessor in title must be liable for any subsidence which occurs during his period of occupancy, just as the occupier of land on which any other continuing nuisance exists is liable for its continuance although it was created by his predecessor. Tills, however, has been held in two cases not to be so.^^ If these cases are rightly decided, it would seem to follow that the withdrawal of support is not a continuing injury. And, if this is so, Darley Main Colliery Co. v. Mitchell 25 (1886), H A. O. 127. 26 Ibid. p. 145. 2" Ibid. p. 132. 28 14 Q. B. D. p. 138. 29 U A. C. p. 144. M Greenwell v. Low Beechburn Coal Co., (1897) 2 Q. B. 165 (Bruce, .J.); mai ,. Zl»A-e of NorfolTe, (1900) 2 Cb. 493 (Kekewich, J.). SECT. 37] SUCCESSIVE ACTIONS. 143 must be explained in accordance with the opinion of Lord Bramwell as an illustration of, and authority for, the rule that, when an act is actionable only on proof of actual damage, successive actions will lie for each successive and distinct accrual of damage. There are, indeed, certain cases that seem at first sight to conflict with the rule as here suggested, but it is believed that all of those cases may be satisfactorilj^ explained and distinguished on the ground that the damage sued for in the second action was not in reality distinct from that sued for iu the first, but was merely a part of it or consequential upon it. For it is clear that the second damage in order to be recoverable in a second action must arise directly from the wrongful act of the defendant and not indirectly through the damage already sued for. In other words, compensation for the first damage includes compensation for all the ulterior consequences of that damage whether already accrued or not, but it does not include compensation for entirely distinct •damage accruing from the defendant's act independently of the damage first sued for. Thus, if the plaintiff recovers damage for the breaking of his leg by the negligence of the ■defendant, he cannot sue a second time for permanent lame- ness due to that accident, or for an amputation rendered necessary by blood-poisoning resulting from the accident, •even though those results were not anticipated and not allowed for in the first action; for those results are not dis- tinct and independent heads of damage, but merely further •consequences of the injury for which he has received com- pensation. ^i On the same principle, if a person injured by negligence sues for compensation, and then dies as a result ■of his injury, his relatives have no cause of action under the Fatal Accidents Act. 32 So if a master sues for the loss of the services of a servant by reason of injuries negligently inflicted by the defendant, he cannot sue in a second action 31 Fitter V. Veal (1701), 12 Mod. 542. '2 Mead v. Great Eastern Rly. Co. (1868), L. B. 3 Q. B. 555. 144 JUDICIAL REMEDIES. [chap. III. Accord and satisfaction. for a further continuance of this loss of service; for this is not new damage, but simply a continuance of the old.^s S4 11. The operation of accord and satisfaction in barring a subsequent action for further damages is the same as that of a judgment in a prior action, unless it is proved that the intention of the parties was the contrary. An accord and satisfaction is a destruction of the cause of action, just as a judgment is, and therefore it is equally a bar to any later action founded on the same cause of action, even though for further damage. Thus, in Head v. Great Eastern Rly. Co.^^ a person injured by the negligence of a railway company received compensation from them in his lifetime, but sub- sequently died of his injuries; and it was held that his executors had no cause of action under the Fatal Accidents Act. Yet if it can be shown that the real agreement between the parties was not to destroy the whole cause of action, but merely to pa}' and receive compensation for the damage accrued up to that time, that agreement will be effective, and an action will lie for any further damage. 36 Prohibitory and manda- tory injunc- tions. § 38. Injunctions. 1. Injunctions are of tAvo kinds, being either prohibitory or mandatory. A prohibitory injunction is an order restrain- ing the defendant from committing or repeating an injurious act — for example, a trespass to land or the erection of a building which would obstruct the plaintiff's lights. A mandatory injunction is an order requiring the defendant to 33 Hodsoll V. Stallebras (1840), 11 A. & E. 301. So also in the case of Clarke v. Yorlce (1882), 47 L. T. 381. 3* As to the possibility of successive actions for slander in respect of different heads of damage, see Townsend v. Hughes (1677), 2 Mod. p. 150, per North, C. J.; Fitter v. Veal (1701), 12 Mod. p. 544, per Holt, C. J.; Darley Main Colliery Co. v. Mitchell (1886), 11 A. C. p. 145, per Lord Bramwell, and p. 143, per Lord Blackburn; Lamb v. Walker (1878), 3 Q. B. D. p. 395, per Manisty, J. 35 (1868), L. R. 3 Q. B. 555. 36 Prosser v. Lancashire (J- Yorkshire Accident Insurance Co. (1890), 6 T. L. R. 285; Elleti v. Gt. N. Rli/. Co. (1901), 49 W. R. 395. Cf. Sideal v. Gt. W. Ely. Co. (1859), 1 F. & F. 706. SECT. 38] INJUNCTIONS. 145 do some positive act for the purpose of putting an end to a wrongful state of things created by him, or otherwise in fulfilment of his legal obligations — for example, an order to pull down a building which he has already erected to the obstruction of the plaintiff's lights. 2. Injunctions, whether prohibitory or mandatory, are Interlocutory either interlocutory or perpetual. An interlocutory injunc- ^^unotions"^^ tion is one issued provisionally before the hearing of the action, in order to prevent the commission or continuance of an alleged injury in the meantime, pending an inquiry into the case and a final determination of the right of the plaintiff to a perpetual injunction. Such an interim injunc- tion is granted summarily on affidavit, usually with an under- taking by the plaintiff to pay damages to the defendant for any loss suffered by him in consequence, if it subsequently appears that the plaintiff is not entitled to an injunction on the merits. A perpetual injunction, on the other hand, is one issued after the hearing and determination of the ques- tion at issue between the parties. 3. Injunctions are either (1) against the continuance of Quia timet an injury, (2) against the repetition of one, or (3) against the cominission of one. The commonest and most important case is the first of these; an injunction is the ordinary and most effective remedy in all cases of continuing wrongs — for example, a nuisance or the infringement of a right of light. Even when the injury is not continuing, however, an injunc- tion may be granted if there is any sufficient reason to believe that it will be repeated — for example, a trespass under a claim to a right of way. In the third place, even if no com- plete injury or cause of action for damages yet exists, an injunction may be obtained in a quia timet action to prevent the commission of an injury in the future; as when the defendant threatens or intends to erect a building which will obstruct the plaintiff's lights, or to establish a fever hospital which will be a dangerous nuisance to the plaintiff's premises. In all cases, however, it seems necessary that there shall be a sufficient degree of probability that the injury will in fact be continued, repeated, or committed. If there is no suffi- s. 10 146 JUDICIAL REMEDIES. [CHAP. III. cient reason to suppose that it will be, the plaintiff will be left to bring his action for damages, when, if ever, the mischief so apprehended has become an established fact. "Where there is no ground for apprehending the repetition of a wrongful act, there is no ground for an in j unction. "^ "The principle," says Chitty, J. ,2 "which I think may be properly and safely extracted from the quia timet autho- rities is that the plaintiff must show a strong case of probability that the apprehended mischief will in fact arise." No injunction 4 jjg iniunction will be granted in a case where obedience II obedience ... • i 1 n mi n impracticable, to such an Order IS impracticable. The Court will never enjoin a defendant, unless it is satisfied that the party en- joined can obey the order. "^ For there are cases in which a defendant is liable in law for the continuance of a wrongful state of things, and yet has no power to put an end to it; and in such cases the plaintiff's only remedy is damages. Jurisdiction 5. Originally injunctions were issued only by the Court iniunctions °^ Chancery. Now, however, by the Judicature Act, 1873, s. 25, sub-s. 8, all Divisions of the High Court have power in respect of all kinds of injuries* to issue injunctions^ whether prohibitory or mandatory, interlocutory or per- petual, whenever "it shall appear to the Court to be just or convenient that such order should be made." Moreover, by Lord Cairns' Act^ the Court has jurisdiction, in all cases in which it might grant an injunction, to award damages " either in addition to or in substitution for such injunction." Jurisdiction 6. The jurisdiction thus conferred upou the High Court to discretionary, • •■ ,■ • ^■ i.- Ai-i>i but injunction issue injunctions IS discretionary. A claim for damages is a granted as of claim of right, but a claim for an injunction may be granted in exceptional or refused by the Court in the exercise 01 its judicial discre- tion. The general principle, however, in accordance with which this judicial discretion must be exercised is that an injunction should be granted in all cases of continuing or 1 Proctor V. Bayley, (1899) 42 C?h. D. p. 401. 2 Att.-Gen. v. Corporation of Manchester, (1893) 2 Ch. p. 92. See also Att.-Gen. v. Corporation of Nottinghmn, (1904) 1 Ch. 673. 3 Harrington {Earl) v. Derby Corporation, (1905) 1 Ch. p. 220. ■^ Includiiig even libeJ. But as to interlocutory injunctions in cases of Ubel, see Bommrd v. Ferryman, (1891) 2 Ch. 269. 5 21 & 22 Vict. c. 27, s. 2. See stipra, s. 37 (9). cases. SECT. 38] INJUNCTIONS. 147 threatened injur}', unless in the particular instance there is some special reason why it should be refused. In other words, an injunction, though not a matter of right, is a matter of coui'se, unless the Court in the exercise of its judicial discre- tion and on special grounds considers that this remedy would not be just or convenient. "The rule," says Lord Kingsdown,6 " I take to be clearly this: if a plaintiff applies for an injunction to restrain a violation of a common-law right . . unless there be something special in the case, he is entitled as of course to an injunction to prevent the recurrence of that violation." 7. It is only in very exceptional circumstances that the jurisdiction Court will depart from this general rule of restraining an *,° grant J^ ° ° damages in injury by injunction, and compel a plaintiff to accept pecu- lieu of niary satisfaction for his wrongs, instead of securing for him '"J"'^'' '""■ the specific fulfilment of his rights. " Ever since Lord Cairns' Act," says Lindley, L. J., in the leading case of Shelf er v. Ciiy of London Electric Lighting Co.,'' "the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalising wrongful acts, or, in other words, the Court has always pro- tested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. . . . Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing actionable nuisances, such juris- diction ought not to be exercised except under very excep- tional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer by way of example to trivial and occasional nuisances; cases in which the plaintiff has shown that he only wants money; vexatious and oppressive cases; and cases where the plaintiff has so conducted himself as to render it unjust to give him more than pecuniary relief." 6 Imperial Gas Light Co. v. Broadbent (1859), 7 H. L. C. p. 612. See Shelfer v. City of London Electrio Lighting Co., (1895) 1 Ch. p. 310, per Lord Halsbury. ■ (1895) 1 Ch. pp. 315, 316. 10(2) 148 JUDICIAL REMEDIES. [chap. III. When an in- junction will be refused. Injury too trifling. 8. The necessity of this power of refusing an injunction in special cases in the exercise of a judicial discretion is due to the fact that the remedy of injunction, if granted in all cases as a matter of right, could be used by plaintiffs as an instru- ment of unjust oppression, with the most mischievous results both to individual litigants and to the public. It is noto- rious, for example, that the facility with which injunctions have in the past been granted to prevent the obstruction of ancient lights has led to the rise of a class of plaintiffs whose sole object is extortion, and who by a threat of preventing building operations by injunction exact sums of money greatly in excess of any loss which they sustain. A recog- nition of this and similar evils has resulted at the present day in greater willingness on the part of the Courts to award damages instead of granting injunctions.^ 9. Since the refusal of an injunction is a matter of judicial discretion, no hard and fast rules can be laid down on the point; but we may say that there are at least two matters which will be taken into consideration by the Court — namely, (1) the magnitude of the injury complained of, and (2) the conduct of the parties. The fact that the damage done or apprehended is so small that pecuniary compensation will be a just and adequate remedy, and an injunction will be needlessly oppressive, may be deemed in the discretion of the Court a suificient reason for refusing this latter remedy. Thus, in CoUs v. Home and Colonial Stores^ (a case of ancient lights) Lord Lindley says: " I am convinced that even if the plaintiffs have a cause of action, the damages which could properly be awarded them would be very small, and to grant a mandatory injunction in such a case as this would be oppressive and not in accord- ance with the principles on which equitable relief has been usually granted." So in Shelf er's case^o it is said by Smith, L. J.: " It may be stated as a good working rule that (1) if 8 See the observations of Lord Maonaghten and Lord Lindley in CoUs V. Some # Colonial Stores, (1904) A. C. pp. 193, 212. Cf . Kme v. JoUtj, (1905) 1 Oh. p. 504, per Cozens-Hardy, L. J.; Jordeson v. Sutton, #c. Gas Co., (1899) 2 Ch. p. 259, per V. WUliams, L. J. 9 (1904) A. 0. p. 212. " (1895) 1 Ch. p. 322. SECT. 38j INJUNCTIONS. 149 the injury to the plaintiff's legal rights is small, (2) and is one wliich is capable of being estimated in money, (3) and is one which can be adequately compensated by a small money payment, (4) and the case is one in which it would be oppres- sive to the defendant to grant an injunction, then damages in substitution for an injunction may be given." On this principle in Kine v. Jolly''-''- the Court of Appeal refused a mandatory injunction to pull down a dwelling- house obstructing the light of the adjoining dwelling-house, although the damage was estimated at £300. On the same principle injunctions have been refused in the case of merely temporary or intermittent nuisances,^^ and in the case of repeated trespasses committed under a claim of right but causing no damage,^^ ^mj f^ cases where the interest of the plaintiff in the property affected was about to determine. ^^ How small the injury must be in order to exclude the remedy of injunction as unduly oppressive, in accordance with this rule, is a question to which no definite reply can be given. ,The present tendency, however, of judicial opinion and practice is to use more freely than formerly the power of preventing an oppressive use of this remedy. In the absence of any wilful or insolent disregard of the plaintiff's rights, the Courts tend to show themselves more inclined than formerly to hold an injury to be too trivial to justify the use of the formidable weapon of in j unction. ^^ 10. A second matter to be taken into account in the exer- Conduct of cise of the Court's discretion to refuse an injunction is the ®^^ conduct of the parties. If the plaintiff has acted in such a way as to render it unjust that he should obtain the benefit of this discretionary remedy, he wiU be left to his bare legal right of damages. "An injunction should only be awarded to those whose conduct entitles them to the interference of a 11 (1905) 1 Oil. 480. 12 Swaine v. Gt. N. Rly. Co. (1864), 4 De G. J. & S. 211. 1^ Behrens v. Biohards, (1905) 2 Oh. 614; Llandudno Urban Council V. Woods, (1899) 2 Ch. 705. 1* Jacomb v. Knight (1863), 3 De G. J. & S. 533. 15 Colls V. Home ^ Colonial Stores, (1904) A. C. p. 193, per Lord Maonaghten; Kine v. Jolly, (1905) 1 Oh. p. 504, per Cozens-Hardy, L. J. 150 JUDICIAL KEMEDIES. [CHAPi III. Court of equity. "IS Thus, if a plaintiff has knowingly stood by and made no objection, while the defendant has in igno- rance invaded his rights (as by erecting a building which obstructs an easement of light or a right of way), no injunc- tion wiU be granted to him.i'' Conversely, if the defendant has himself acted with wilful and high-handed disregard of the plaintiff's rights, an in- junction will be granted even in cases which would otherwise have been deemed too trivial for this remedy.^* Effect of 11. When, on the other hand, the damage done or appre- interests of bended is substantial, and there is nothing in the conduct of defendant or j-j^g plaintiff sufficient to render him undeserving of this of tne pu Dlic. ^ . . . 1 1 • m remedy, an inj,unction will be granted even though its effect will be to inflict upon the defendant or upon the public at large a loss that is much greater than any benefit so con- ferred upon the plaintiff. The Court will not sanction, in the interest of individuals or of the public, any substantial invasion of private rights, even on the terms of paying full compensation for the injury so inflicted. "Neither," says Lindley, L. J., in Shelf er's case,!^ "has the circumstance that the v/rongdoer is in some sense apublic benefactor (e.g., a gas or water company or a sewer authority) ever been considered ,a sufficient reason for refusing to protect by in- junction ^n individual whose rights are being persistently infringed. Expropriation, even for a money consideration, is only justifiable when Parliament has sanctioned it." Thus, injunctions have been granted prohibiting the use of electric-lighting machinery which was causing structural injury and discomfort in a public-house ;20 prohibiting the making of coal-gas to the injury of the plaintiff's vegetable 16 Jordeson v. Sutton Gas Co., (1899) 2 CIi. p. 260. 1' Buke of Leeds v. Barl of Amherst (1846), 2 Ph. p. 123; GasJcin V. Balls (1879), 13 Ch. D. 324. Mere delay, however, is no bar to an in- 'jixnotion, if the defendant has not been thereby misled into altering: his position. FuUwood v. Fullwood (1878), 9 Ch. D. 176. 18 Colls V. Some ^ Colonial Stores, (1904) A. C. p. 193, per Lord Macnaghten; Kine v. Jolly, (1905) 1 Ch. p. 495, per V. Williams, L. J. See Daniel v. Ferguson, (1891) 2 Oh. 27. 19 (1895) 1 Ch. p. 316. 2" Shelf er v. City of London Mectric Lighting Co., (1895) 1 Ch. 287. SECT. 38] INJUNCTIONS. 151 garden ; 21 prohibiting the dischaa-ge of the sewage of a town into a river to the injury of the plaintiff's fishing rights therein; 22 ordering a building to be pulled down which obstructed the windows of an adjoining building ;23 ordering the removal of great quantities of stones and ballast that had been wrongfully deposited upon the plaintiff's oyster beds. 2* In this last case it is said by Holmes, L.J. 25; "The de- fendants urge that the injunction will be of little advantage to the plaintiffs, and that the cost and trouble which it wiU impose on the defendants will be out of aU. proportion to any benefit that wiU foUow from it. In this I am disposed to agree, but it is no legal ground for refusing the relief asked. If it were, persons in the position of the defendants would be able to acquire rights of property by wrongdoing and to carry out a compulsory purchase not only without but in opposition to statutory authority." 12. When damages are awarded in substitution for an Damages injunction in pursuance of the discretionary jurisdiction con- i'^.^^®" ?* "' ^ . . . mjuBOtion ferred by Lord Cairns' Act, such damages are given in respect granted in of the future, and not merely, as at common law, in respect f^tu^e ° of damage already done in the past. Such an award of damage, damages amounts, therefore, to a legalisation of the appre- hended mischief; the defendant has thereby purchased aright to do the act in respect of which an injunction was asked, and in respect of which damages have been given instead. There are, therefore, three alternative courses open to the Court in such cases: — (a) To give damages for the past and an injunction for the future; (b) To give damages for the past and refuse any reKef as to the future, thus leaving the plaintiff free to bring a second action for further damage when it accrues; (<:•) To 'give damages for the past and also damages in 21 Imperial Gas Light Co. v. Broadbent (1859), 7 H. L. C. 601. 22 Att.-Gen. v. Borough of Birmingham (1858), 4 K. & J. 528. 2S Jackson v. Normanby Brick Co., (1899) 1 Ch. 438; Daniel v. Fer- guson, (1891) 2 Ch. 27. . X ^ 2* Woodhouse T. Newry Navigation Co., (1898) 1 Ir. E. 161. 2B Jhid. p. 174. 152 JUDICIAL KEMEDIES. [chap. III. respect of the future in lieu of an injunction, thus finally disposing of the matter, and legalising the continuance of the injurious state of things. ^6 Six years' limitation in actions of tort. When the time begins to run. Continuing injuries. § 39. The Limitation of Actions. 1. Subject to certain exceptions which will be considered later, every action to recover damages for a tort may and must be commenced within six years after the cause of action has arisen. This is the general rule 'established by 21 James I. c. 16, s. 3. 2. The period of limitation begins to run at the time when a complete and available cause of action first comes into existence. Therefore, when a wrongful act is actionable per se without proof of actual damage, the statute runs from the time at which the act was committed — ^for example, libel, assault, or trespass to land or goods. This is so even though the resulting damage does not happen or is not discovered until a later date; for such damage is not a new cause of action, but merely an incident of the old one.^ When, on the other hand, the wrong is not actionable without actual damage, the period of limitation does not begin to run until that damage happens: as in the case of negligence, fraud, or wrongful interference with an easement of support. ^ 3. When the injury is a continuing one — for example, a nuisance — a new cause of action arises de die in diem or as often as fresh damage accrues; and therefore an action will 26 Fritz V. Bobson (1880), 14 Oh. D. p. 548, ajid the other cases cited supra, p. 140, n. 24. It is unsettled whether there is any power under Lord Oaims' Act to award damages in lieu of an injunction in a quia timet action, where no actual harm or complete cause of action for damages yet exists. Dreyfus v. Peruvian Guano Co. (1889), 43 Oh. D. p. 333; Martin v. Price, (1894) 1 Ch. 276. It is possible, therefore, that in such a case the Court has only two alternatives — namely, either to grant an injunction or dismiss the action. 1 Battley v. Faulkner (1820), 3 B. & Aid. 288; Roberts v. Read- (1812), 16 East, 215; Eowell v. Young (1826), 5 B. & O. 259; Eughes Y. Twisden (1886), 55 L. J. Oh. 481; Short v. McCarthy (1820), 3 B. & Aid. 626. 2 Roberts v. Read (1812), 16 East, 215; Thomson v. Lord Clanmorris, (1900) 1 Oh. 718; Bachhouse v. Bonomi (1861), 9 H. L. 0. 503. As to the period of limitation when distinct damage results at different times from the same wrongful act, see s. 37 (10), supra. SECT. 89] LIMITATION OP ACTIONS. 153 always lie in respect of any continuance of the wrong, or any accrual of fresh damage, which is not more than six years old. Thus, when a continuing nuisance has lasted for ten years, an action will lie for damages for its continuance during the last six years, although any claim for damages for the first four years is barred by the statute. So in the case of withdrawal of support from land an action wiU lie for any subsidence not more than six years old.^ 4. Even when a cause of action is otherwise complete, it No person may be that there is not yet in existence any person who is l^g or° capable of instituting the action, or any defendant capable of ^^^^S sued, being sued; and in such case the statute does' not begin to run until this bar to the institution of an action has dis- appeared. Thus, if a tort is committed against the estate of an intestate in the interval between his death and the grant of letters of administration, the statute does not begin to run until an administrator is appointed.* Similarly, the statute does not begin to run in favour of a foreign ambassador until the termination of his period of ofHce; for imtil then no action will lie against him.^ If, however, a complete and available cause of action has once come into existence, no subsequent and temporary bar to the institution of an action — for example, the death of either party intestate — has any effect in suspending the running of the statute.^ 5 . If, when the cause of action first arises, the plaintiff is Disability of a minor or a lunatic, or the defendant is absent from the P'^™*™- United Kingdom, the period of limitation does not begin to defendant, run until the plaintiff becomes of age or of sound mind, or the defendant comes into the Kingdom .'' These disiabilities must 3 Whitehouse v. FelUwes (1861), 10 O. B. (N. S.) 76S; BaoMouse v. Bonomi (1S61), 9 H. L. O. 503; Barley Main Colliery Go. v. Mitchell (1886), 11 A. O. 127; Crumble v. Wallsend Local Board, (1891) 1 Q. B. 503. * Murray v. East India Co. (1821), 5 B. & Aid. 204. 6 Musurus Bey v. Qadhan, (1894) 2 Q. B. 352. 6 Rhodes V. Smethurst (1840), 6 M. & W. 351. ^ The rule as to the infancy or lunacy of the plaintiff is established by 21 Jac. I. c. 16^ 8. 7, and tn« rule as to the absence of the defendant by 4 Anne, c. 16, s. 19, and 19 & 20 Vict. o. 97, s. 12. By virtu© of this last Act the Isle of Man and the Channel Islands are to be deemed for this purpose part of the United Kingdom. By the statute of James I. 154 JUDICIAL REMEDIES. [chap. III. Rule of con- cealed fraud. Equitable origin of rule exist at the time when the cause of action first arises. If the statute has once commenced to run, no subsequent insanity of the plaintiff or absence of the defendant beyond the seas will have any effect.^ 6. When the defendant has been guilty of fraud or other wilful wrongdoing, the period of limitation does not begin to run until the existence of a cause of action has become known to the plaintiff. This is commonly spoken of as the rule of concealed fraud, but the term fraud is here used in its widest sense as meaning any act of wilful and conscious wrongdoing — ^for example, a wilful underground trespass and abstraction of minerals. The term concealed, moreover, does not imply any active suppression of the facts by the defendant, but means merely that the wrong is unknown to the person injured at the time of its commission. ^ In all other cases save that of concealed fraud as thus defined, the statute runs from the time when the cause of action first arises, and it makes no difference whether the cause of action Avas or was not known to the plaintiff, or whether it was or was not discoverable by him. This exception of concealed fraud is not expressed in the statute, but was established by the Court of Chancery as being conformable to the spirit of the statute, if not to its lettej'. According to certain decisions,!" which are not, how- ever, of such authority as to determine the matter finally, no such exception was recognised by the Courts of common law; but whether this was so or not, the better opinion is that since the Judicature Act the equitable rule has become applicable in aU cases. ^^ the coverture or imprisonment of the plaintiff or the absence of the plaintiff beyond the seas also prevented the statute from running, but these exceptions are no longer recognised. 45 & 46 Vict. c. 75, s. 1 ; 19 & 20 Vict. c. 97, s. 10. As toith© effect of the temporary presence of the defendant within the realm, see Gregory v. Eurrill (1823), 1 Bing. 324, «■' Rhodes v. Smethurst (1840), 6 M. & W. 351. 9 Bulli Coal Mininff Co. v. Osborne, (1899) A. C. 351; Oelkers v. Ellis, (1914) 2 K. B. 139. 10 Imperial Gas Light Co. v. London Gas Light Co. (1854), 10 Ex. 39; Bunter v. Gibbons, 1 H. & N. 459. 11 Gibbs V. Guild (1881), 8 Q. B. D. 296; 9 Q. B. D. 59; Armstrong V. Milburn (1886), 54 L. T. (N. S.) 247, 723; BulU Coal Mining Co. v. SECT. 403 SPECIAL PERIODS OF LIMITATION. 155 It is commonlj- said that the rule of concealed fraud does not apply when the plaintiff could by the exercise of care and diligence have discovered the fraud. In other words, it is said that the statute runs, not from the time when the, cause of action was discovered by the plaintiff, but from any earlier time at which it ought to have been discovei'ed: But there seems to be no decision to this effect, and it is difficult to see what duty of care or diligence a i^erson defrauded owes to him who defrauded him.i^ § 40. Special Periods of Limitation. 1. The general limitation of six years established by the Special Act of James I. is subject to certain exceptions, there being thansL"'* particular species of injuries for which a shorter period is years, appointed. Some of these exceptions are established by the principal Act itself and others by later enactments. 2. It is provided by the Act of James I. that an action slander, for slander must be brought within two years. This pro- <. vision, however, applies only to slander actionable per se ; slander actionable only on proof of special damage is subject to the ordinary Limitation of six years from the date when the damage accrued. ^^ This two years' limitation is subject to the same qualifications as to disability, absence, and so forth as the ordinary limitation of six years. 3. By the Act of James I. actions for assault, false im- Injuries to prisonment, trespass to the person, and possibly other forms of personal injury, must be brought within four years, sub- ject, however, to the same qualifications as in the six years' period. 2 Osborne, (1899) A. O. 351; MoUoy v. Mutual Reserve Life Assurance Co. (1906), 94 L. T. 756, p. 761, v^r Romer, L. J. It has been sug- gested, however, that the equitable rule does not even yet apply to causes of action which were formerly cognisable solely at common law. Barber v. Souston (1885), 18 L. K. Jr. 475; Armstrong v. Milburn, supra, per Mathew, J., at p. 249. 12 See BulU Coal Mining Co. v. Osborne, (1899) A. C. at p. 363; Betjemann v. Betjemann, (1895) 2 C3h. p. 482. 1 Saunders v. Edwards (1662), Sid. 95. The reason is that the statute says " two years next after the words spoken," implying that the causei of action is then complete. 2 The words of the statute are " actions of trespass of assault, battery, 156 JUDICIAL EEMEDIES. [chap. III. PubUc Authorities Protection Act. 4. By the Public Authorities Protection Act, 1893,3 it is provided that where "any action ... is commenced . . against any person for any act done in pursuance or execu- tion or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority . . . the action shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or, in the case of a con- tinuance of injury, or damage, within six months next after the ceasing thereof." This Act, notwithstanding the generality of its language, probably extends only to the protection of public authorities, and not to the protection of private persons or bodies cor- porate, even though they have statutory duties or powers imposed on or vested in them for the benefit of the public — for example, a railway company or a harbour company.^ On the other hand, the Act protects public authorities not merely in the exercise of their strictly public functions, but also in the exercise of functions of the same nature as those exercised by private persons; provided, at least, that these functions are not optional merely, but are performed as a matter of statutory obligation. Thus, a municipal corpora- tion which lies under a statutory duty to carry passengers on its tramways has the protection of the Act in respect of the negKgence of its servants whereby personal injuries are inflicted on a passenger .^ The breach of a contract volun- tarily entered into is not, however, within the protection of the Act, even though the contract is made under statutory authority, and even though the breach of it is also a tort.'' '^ wounding, imprisonment." Qucere whether this includes personal in- juries for which the action under the old practice was not trespass but 3 56 & 57 Vict. c. 61, s. 1. * Lyles V. Southend-on-Sea Corporation, (1905) 2 K. B. at p'. 13. 5 The Ydun, (1899) P. 236; Parker v. Z. C. C, (190i) 2 K. B. 501; Zyles V. Southend-on-Sea Corporation, (1905) 2 K. B. 1. 6 Bradford Corporation v. Myers, (1916) A. C. 242. '' In The Earl of Harrington v. The Corporation of Derby, (1905) 1 Ch. 205, it was held that in the case of a continuing injury, such as a nuisance, the plaintifE, although he must sue within six months after the SECT. 40] SPECIAL PERIODS OF LIMITATION. 157 o. By the Maritime Conventions Act, 1911, a period of CoUisions limitation of two years is imposed upon claims in respect of damage to a vessel or her cargo, or in respect of loss of life or personal injuries suffered by any person on board a vessel, caused by the fault of any other vessel. § This period may, however, be extended by the Court in certain circumstances. 6. A fifth exception comprises all those miscellaneous Statutory cases in which a right of action in tort is conferred by a gpfolj^'^ statute which also establishes for it a special period of limitations, limitation. Examples are the Civil Procedure Act, 1833, conferring rights of action against executors, the Employers' Liability Act, 1880, and the Fatal Accidents Act, 1846. When a statute creates a new tort and imposes no period of limitation, the case falls within the general provisions of the Act of James 1.9" 41. Felonious Torts. 1 . \yhen a tort is also a felony, no action can be brought No action for in respect of the tort until the defendant has been prosecuted „ntu^f^on°' for the felony. 1 " It is a well established rule of law," says prosecuted ceasing of tlie injury, may in such an action recover compensation for all damage which has accrued within the ordinary period of six years before action brought. See also Att.-Gen. v. Lewes Corporation, (1911) 2 C!h. 495. In Williams v. Mersey Boohs and Harbour Board, (1905) 1 K. B. 804, it was decided by the Court of Appeal that an action against a public authority- under the Fatal Accidents Act, 1846, must be brought within six months from the date of the injury to the deceased, and therefore that if his death does not ensue until after six mouths from the injury, no action will lie at all. For other decisions on the meaning' of the Public Authorities Protection Act, see Greenwell v. Howell, (1900) 1 Q. B. 535, and TUKng v. IHok, Kerr # Co., (1905) 1 K. B. 562. 8 Maritime Conventions Act, 1911, s. 8. See s. 12 (7), supra. 9 Thomson v. Lord Glanmorris, (1900) 1 Ch. 718. This case decides that the two years' period of limitation provided by the Civil Procedure Act, 1833, for "actions for penalties, damages, or sums of money given by any statute" applies only to penal actions, and not to statutory torts for which the remedy is an action for damages. 10 As to the effect of the Statutes of Limitation upon the title to chattels, see Chapter X. on Conversion. As to the law- of prescription as a defence to an action for nuisance, see Chapter VII. on Nuisance. The operation of the Statutes of Limitation upon the title to land belongs to the law of property, and not to that of torts. 1 Smith v. Selwijn, (1914) 3 K. B. 98. 158 JUDICIAL REMEDIES. [cHAP. III. Pliillimore, L. J., in Smith v. Selwyn,^ "that a plaintiff against whom a felony has been committed by the defendant cannot make that felony the foundation of a cause of action unlese the defendant has been prosecuted or a reasonable excuse has been shown for his not having been prosecuted." The rule is designed in the interests of public justice, for it compels persons injured by criminal offences to fulfil their duty of prosecuting the offender, instead of contenting them- selves with the enforcement of their private rights. 2 . If the defendant in an action of tort wishes to raise the objection that the wrong complained of amounts to a felony, the proper procedure is not to raise this as a defence in the pleadings, but to make an application to the Court to stay the action. 3 Exceptions to 3 [pj^g j-yjg j^j^g jjq application unless the person sued for general rule. . . . . the tort is the felon himself . If he is a third person innocent of any felony, although civiUy responsible for the tort, an action will lie against him, whether the felon has been prose- cuted or not. Thus, an action will lie against a master in respect of a felonious tort committed by his servant in the course of his employment.* So the innocent receiver of stolen goods may be sued in trover, although the thief has not been prosecuted.^ 4. The rule has no application unless the plaintiff in the action of tort is the person who was injured by the felony, and whose duty it therefore is to institute a prosecution.. Thus, if the person injured becomes bankrupt, his right of action may pass to his trustee, but it is not accompanied by the duty of prosecuting, and therefore the trustee's right of action is not suspended.^ 5. The rule applies only to felonies, not to mere misde- meanours or criminal offences punishable only on summary conviction.' 3 Smith V. Selwyn, (1914) 3 K. B. 106. 3 Ibid. p. 98. i Osborn v. aUlett (1873), L. B. 8 Ex. 88. 5 White V. Spettigue (1845), 13 M. & W. 603; Marsh v. Keating (1833), 2 CI. & F. 250. 6 Ex parte Ball (1879), 10 Ch. D. 667. ' Smith V. Sehoyn, (1914) 3 K. B. 98. SECT. 42] ASSIGNMENT OF RIGHT OF ACTION. 159 6. The rule does not apply to actions brought under the Fatal Accidents Act, 1846, even though the killing of the deceased amounted to murder or manslaughter. This Act expressly provides that the action will lie "although the death shall have been caused under such circumstances as amount in law to felony." 7 . The rule does not apply if the prosecution of the offen- der ha.s become impossible notwithstanding due diligence on the part of the person whose duty it was to prosecute — as, for example, when the offender has died or escaped from the jurisdiction before there has been any undue delay in com- mencing a prosecution,^ or, presumably, if there is any other reasonable justification of the failure to prosecute. ^ § 42. Assignment of Rights of Action for Torts. 1 . The assignment of a right of action for damages for a Right of tort is in general illegal and void. There is, indeed, 210 torj^not decided case which definitely establishes this rule or deter- assignable, mines the precise limits of it. Nevertheless it has been so often said or assumed to be the law that there is no serious doubt as to the general principle, though its exceptions and qualifications must remain in the meantime a matter of some uncertainty. 1 The rule is based on considerations of public policy, and is designed to prevent the oppressive litigation that would result if a right of action for damages were recog- nised as a marketable commodity capable of purchase by v/ay of a commercial speculation. The purchase of a right of action for a tort is, indeed, merely a particular form of the offence of maintenance — the act of assisting and promoting without lawful justification the litigation of others. 2. The rule applies to torts of all kinds, whether they are injuries to property or to the person or otherwise, and the 8 Marsh v. Keatinfj (1834), 2 01. & P. 250; Ex parte Ball (1879), 10 Ch. D. 667. 9 Smith V. Selwyn, (1914) 3 K. B. 98. t May V. Lane (1894), 64 L. J. Q. B. 236; Dawson v. Ot. N. Rly. Co (1905) 1 K. B. 260; Prosser v. Edmonds (1835), 1 Y. & C. 481: £fle'gff V. Bromley, (1912) 3 K. B. 474. 160 JUDICIAL REMEDIES. [CHAP. III. suggestion which has sometimes been made that injuries to property are an exception seems not maintainable. ^ 3. The rule is not limited to rights of action for a tort, but applies equally to rights of action for damages for a breach of contract. The general principle is that no right to recover damages for an unlawful act, whether it is a tort or a breach of contract, is legally recognised as a form of assignable property. 3 Qualifications 4. But the rule is not applicable where the right assigned rulf^'^^'^* has some other source than an illegal act. It is on this prin- ciple that rights arising under a contract are assignable, as opposed to rights arising from the breach of a contract. So also with rights arising quasi ex contractu, as in the case of money paid by mistake. On the same principle, there should be no objection to the a,ssignment of a judgment debt even in an action of tort, or to the assignment of money agreed to be paid by way of settlement of a claim in tort. So also a claim for compensation under the Lands Clauses Consolida- tion Act, 1845, s. 68, in respect of lands injuriously affected by an exercise of statutory power is legally assignable.* 5. The rule does not prevent the assignment of property merely because it is the subject of litigation and cannot be recovered without an action. Thus, a sale of chattels by A to B while they are wrongfully detained by C is valid and confers upon B a right of action against C.^ 6. The rule does not prevent the assignment by a trustee in bankruptcy of the bankrupt's choses in action, even though they arise ex delicto. For the trustee has a statutory power and duty of realising the assets, and therefore of selling them if he pleases.^ 7 . The rule does not prevent the subrogation of an insurer 2 See Daivson v. &t. N. My. Co., (1905) 1 K. B. 260. 4 May V. Lane (1894), 64 L. J. Q. B. 236, per Esher, M. E., and Eigby, L. J. i Dawson v. Gt. N. My. Co., (1905) 1 K. B. 260. 5 Ibid, at p. 271. 6 Seear v. Lawson (1880), 15 Oh. D. 426; Guy v. Churchill (1888), 40 Oh. D. 481. SECT. 42] ASSIGNMENT OF RIGHTS OP ACTION. 161 to the rights of the insured, even though these rights are rights of action for damages for a tort.'' S. Presumably the rule does not apply to any other case in -which the assignee has any lawful interest in the subject- matter sufficient to exclude the doctrine of maintenance — for example, an assignment by a trustee to his beneficiaries of a right of action for an injury to the trust estate. ^ 9 . The rule does not prevent the assignment of the fruits ' of an action in tort, i.e., an assignment of the damages to be recovered in such an action — even though the assignment is made before the action has commenced or before judgment has been recovered. ^ This is not the assignment of an exist- ing cause of action. It is merely the equitable assignment of future property defined or identified by reference to such a cause of action. It confers upon the assignee no right to institute or intervene in the action, and is therefore free from that element of maintenance on which the general rule as to the non-assignability of rights of action is based . 10. Possibly a right of action for an injury to property is assignable along with the property itself.^" 1 1 . When a right of action for a tort is assignable at all, it is a legal chose in action within the meaning of the Judica- ture Act, 1873, s. 25, so that the assignee may sue in his own name.^^ 12. When, in accordance with the general principle, a Effect of right of action for a tort is not assignable, an attempted J^^f^^ *®®'^''' assignment of it has presumably the following effects: — (a) The assignment is void as between the parties, and the right of action remains vested in the assignor, and enforceable by him. (6) An action by the assignee in his own name will fail. '■ Kino V. Victoria Insurfince Co., (1896) A. 0. 250. 8 Guy V. Churchill (1888), 40 Ch. D. 481. 9 Glegg v. BromUy, (1912) 3 K. B. 474. 10 JDawson v. Gt. N. My. Co., (1905) 1 K. B. at p. 271; Williams v. Protheroe (1829), 5 Bing. 309. s a o .,.« 11 Kinri V. Victoria Insurance Co., (1896) A. G. 250. 11 162 JUDICIAL REMEDIES. [chap. III. (c) An action by the assignee in the name and by the authority of the assignor "will amount to the wrong of maintenance. Election be- tween action on tort and action on fictitious contract. In what oases waiver allowed. § 43. The Waiver of Torts. 1. There are certain cases in which a person injured by a tort is entitled, if he pleases, to waive the tort, as it is termed, and to sue instead for the breach of a quasi-contract — a con- tract fictitiously implied by law. In the days when forms of action still existed he had his election either to sue in trespass, trover, case, or some other delictal action, or to use instead the remedy appropriate to the breach of a simple contract — namely, assumpsit ; and although forms of action are now happily abolished, the process of waiving a tort has not yet ceased to be of practical importance. 2. The waiver of a tort is not allowed in all cases; it is a special device for special occasions. There is no general rule that ho who is injured by a tort can sue on an implied con- tract to pay compensation for the harm so done. In what cases, then, is a waiver permitted? As the authorities stand this question is not one which it is possible to answer com- pletely. There. is, however, one rule which may be laid down with confidence: when the defendant has by means of a tort become possessed of a sum of money at the expense of the plaintiff, the plaintiff may at his election sue either for damages for the tort, or for the recovery of the money thus wrongfully obtained by the defendant; and this latter action (an action for money had and received by the defendant to the use of the plaintiff) is based on an implied contract of agency, the defendant being fictitiously asfeumed to have rightfully received the money as the plaintiff's agent, and to have failed to pay it over to his principal. This is so, for example, if the defendant wrongfully takes by trespass or obtains by fraud the money of the plain tiff. ^ So also if the plaintiff's goods are wrongfully converted and 1 A'eate v. Harding (1851), 6 Ex. 349. SECT. 43] THE WAIVER OF TORTS. 1^3 sold by the defendant, the plaintiff may choose between an action of trover for the value of the goods and an action of quasi-contract for the price so received by the defendant. If a man's goods are taken by an act of trespass and are subsequently sold by the trespasser and turned into money, he may maintain trespass for the forcible injury, or waiving the force he may maintain trover for the wrong, or waiving the tort altogether he may sue for money had and received."- So if the defendant has usurped the plaintiff's office and re- ceived the fees belonging to it, the plaintiff may either sue him in case for this disturbance of his office, or in assumpsit for the money so received.* 3. It is far from clear, however, how much further this Uncertain doctrine of the waiver of torts extends. There are authorities ^''°'P^ ° which, if they could be relied on, would justify us in laying down a general rule to the effect that whenever the defendant has by his tort acquired a profit of any sort (whether it is the receipt of money or not) the tort may be waived, and an action of contract brought to compel payment of a pecuniary equivalent for that profit. Thus, in Lightly v. Clouston^ the defendant had wrongfully taken the plaintiff's apprentice into his employment, and the plaintiff, instead of suing in tort for damages for this invasion of his right to the services of his apprentice, successfully sued in assumpsit to recover a reasonable remuneration for these services as on a contract of hiring. It is doubtful, however, whether any such general extension of the doctrine of waiver is justifiable.^ 4. In those cases in which the waiver of a tort is permitted J^estmetion th(! two causes of action — delictal and quasi-contractual — are of action by not cumulative, but alternative. The plaintiff must make his 'le'fao" of t*ie ' ^ other. election between them, and cannot pursue both. Anything, therefore, which exhausts or extinguishes one of the causes of 2 Rodgers v. Maw (18i6), 15 M. & W. p. 448. 3 Arris V. Stukeley, 2 Mod. p. 262. ■t (1808), 1 Taunt. 112. 5 See also Foster v. Stewart (1814), 3 M. & S. 191 ; Hambly v. Trott, Cowp 375: Russell v. Bell (1842), 10 M. & W. 340; Rumsenlp meaning of this rule, it is not enough that the force was not more than was necessary for the purpose in hand . For even though not more than necessary, it may be unreasonably dis- proportionate to the nature of the evil sought to be avoided . "A man cannot justify a maim for every assault; as if A strike B, B cannot justify the drawing his sword and cutting off his hand; but it must be such an assault whereby in probability the life may be in danger."'- One cannot law- fully defend himself against a trivial assault by inflicting death or grievous bodily harm, even though the assault cannot be prevented in any other way. ■i. He on whom an assault is threatened or committed is Need not be not bound to adopt an attitude of passive defence. He may p^giyg ° lawfully take measures of aggression on his own account, so defence, long as he does not go beyond what is reasonable as a measure of self-defence. Nor need he make any request or give any warning, but may forthwith reply to force by force. ^ § 46. Prevention of Trespass. 1 . It is lawful for any occupier of land, or for any other Force to pre- person with the authority of the occupier, to use a reasonable degree of force in order to prevent a trespasser from enter- ing or to eject him after entry. 2. This right of using force against trespassers is conferred RigHt con- only on the occupier of the land (or his agents), for it is only occupiers, the occupier who is entitled to complain of a trespass and to 1 Leward v. Basely (1695), 1 Ld. Raym. 62. 2 Cook V. Beal (1697), 1 Ld. Raym. 176; C'ockroft v. Smith (1705), 11 Mod. 43; Dale v. Wood (1822), 7 Moore, 33. 3 Green v. Goddard (1704), 2 Salk. 641. 170 EXTKAJUDICIAL REMEDIES. [CHAP. IV. Request necessary. Amount of force permitted. Exceptions to rule. take legal proceedings in respect thereof. The mere Mse of property, therefore, without the exclusive possession of it, will not justify the use of force to exclude others.^ 3. Except when a trespass is committed by actual force, the trespasser cannot be forcibly repelled or ejected until he has been requested to leave the premises, and a reasonable opportunity of doing so peaceably has been afforded to him. As against him who enters or geeks to enter by force, however, force may be forthwith used without any request made.^ 4. As to the amount of force that may be used against a trespasser, the general rule is that it must not exceed that which is indicated in the old forms of pleading by the phrase molliter manus imposuit. That is to say, it must amount to nothing more than forcible removal, and must not include beating, wounding, or other physical injury. Thus, in Collins V. IRenison^ the plaintiff sued for the assault of throwing him off a ladder, and it was held a bad plea that the plaintiff was trespassing and refused after request to leave the premises, and that the defendant thereupon " gently shook the ladder, which was a low ladder, and gently overturned it, and gently threw the plaintiff from it upon the ground, thereby doing as little damage as possible to the plaintiff." 5. There are two exceptions to this rule as to molliter manus imposuit : — (a) If the trespasser in the course of eviction makes or threatens to make an assault upon the person evict- ing him, the case becomes one of the defence of the person, and thereafter any force may be used which is reasonable within the rule as to self-defence already considered, even though it involves beating or physical harm.* 1 Sean v. Soffff (1834), 10 Bing. 345; Holmes v. Bagffe (1853), 1 E. & B. 782; Roberts v. Tayler (1845), 1 O. B. 117. As against a mere wrongdoer, however, actual possession without title is doubtless suffi- cient, just as in an action of trespass. 2 Polkinhorn v. Wright (1845), 8 Q. B. 197; Green v. Goddard (1704), 2 Salk. 641. 3 (1754), 1 Sayer, 138. * Supra, s. 45. SECT. 47] RE-EN'J'RY ON LAND. I'^i (6) If the trespasser enters or seeks to enter by way of a forcible felony, the case falls within the rule that any force is justifiable which is necessary to prevent the commission of a felony by force. ^ 6. The forcible ejectment of a trespasser must be care- Forcible entry f ullj' distinguished from forcible re-entry upon land of which '*" ••i?"i'* possession has been wrongfully taken or detained. This case will be considered later. When a trespasser has not merely entered, but has dispossessed the former occupier, and taken possession of the land himself, any use of force against him thereafter is not the ejectment of a trespasser, but forcible entry upon land in the possession of another, and is governed, as we shall see, by difierent rules. ^ "^ § 47. Re-entry on Land. 1 . He who is wrongfully dispossessed of land is not bound Forcible to proceed for its recovery by action at law, for he may retake griiBmal possession of it by his own act, if he can do so peaceably and offence, without the use of force. ^ A forcible entry, however, even by a person lawfully entitled to the possession, is an indict- able piisdemeanour under the Statutes of Forcible Entry. It is provided by 5 Rich. II. st. 1, c. 8, that under pain of imprisonment no one shall " make entry into any lands and tenements but in case where entry is given by the law, and iji such case not with strong hand nor with multitude of people, but only in peaceable and easy manner." Entry by means of a threat to use force will be deemed forcible, even though no force is actually used.^ The force need not consist in violence towards the person of the occupant or any one else, for it is a forcible entry to break into a house even though no one is present in it.^ 5 Stephen's Digest of Criminal Law, Art. 220, 6th ed. s Infra, s. 47. 7 As to the right of an occupier to create a source of danger on. his land for the purpose of preventing trespass, vide infra, a. 123. 1 Taunton v. Costar (1797), 7 T. R. 431. 2 Hawkins' Pleas of the Orown, ch. 64, sect. 27. 3 Comyns' Digest, Forcible Entry, A. 2. t-\i,^'t^g r fhki. Poji^ ^4{ CLir Ji Zi^A;/. 172 EXTRAJUDICIAL REMEDIES. [ciIAP. JV. Forcible ejectment. Forcible entry not a civil injury if right of entry exists. Assault or damage incidental to forcible entry. 2. It is a forcible entry to enter peaceably and then eject by force the adverse occupant. Before force can be so used, real and effective possession must be obtained, and not the merely formal or nominal possession acquired by entering into premises in which a hostile possessor is still present.^ 3. Forcible entrj?, however, upon a person wrongfully iu possession by a person entitled to the possession is, although a criminal offence, no civil injury for which the wrongdoer so ejected has any remedy. He can neither sue in ejectment for the recovery of the land, nor in trespass for damages.^ 4. It has nevertheless been said and sometimes decided that if in the course of a forcible entry an assault is com- mitted upon the occupier or other person defending the possession, or damage is done to chattels upon the premises, an action for damages will lie in respect of this independent injury, although none lies for the entry and eviction itself. It was 60 held by a majority of the Court of Common Pleas in the case of Newton v. Harland,^ which was followed by Fry, J., in Beddall v. Maitlcmd^ In Harvey v. Brydges,^ on the other hand, the decision in Newton v. Harland was disapproved by the Court of Exchequer, Baron Parke say- ing: "If it were necessary*to decide it, I should have no difficulty in saying that where a breach of the peace is com- mitted by a freeholder, who in order to get into 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 1 Bacon's Abridg. Forcible Entnj, B.; Edwick Ch. D. at p. 211 IloAokes (1881), 18 5 Pollen V. (1823), 1 Bin Breiver (1859), 7 C. B. (N. S.) 371; Turner v. Meymott r. 158; Burling v. Bead (1850), 11 Q. B. 904. (1840), 1 M. & G. 644. ' (1881), 17 Ch. D. 174. See also Edwick v. Hawkes (1881), 18 Ch. D. 199, where the same judge reiterated his opinion on the point. 8 (1845), 14 M. & W. 437. SECT. 48] DEFENCE AND RECAPTION OF CHATTELS. 173 peace was committed." la Blades v. Higgs,^ Erie, C.J. , delivering the judgment of the Court of Common Pleas, accepts the view thus expressed by Park«, B., in preference to the decision in Neivton v. Harland. In Jones v. Folcy^'^ a Divisional Court held that no action lay at the suit of a tenant holding over against his landlord, who entered and removed the roof of a cottage, wherebj^ the plaintiff's furni- ture was damaged. The reason given for the decision, however, is that such an act does not amount to a forcible entry, which may be gravely doubted. It is submitted that the dictum above quoted from Baron Parke is a correct state- ment of the law, notwithstanding Newton v. Harland and Beddall v. Maitland. It is difficult to see how it is possible on principle to give a wrongful occupier damages for an assault which is the direct consequence of his own wrongful refusal to go out peaceablj' Had he not resisted wrongfully, there would have been no assault; how then can he sue for it? 48. Defence and Recaption of Chattels. 1 . Any person entitled to the possession of a chattel may Forcible defend lus possession by the use of reasonable force, or may ''f*^^"^ °^ retake the chattel either peaceably or by the use of reason- able force from any person who has wrongfully taken or de- tained it from him. Such a retaking, even though forcible, i? neither a civil injury nor a criminal offence. ^ As to the amount of force which is permissible, and as to the necessity of a precedent request, the defence and recaption of chattels is presumably governed by the same rules as the ejectment of trespassers upon land. The remedy of forcible recaption is not limited to cases of the wrongful taking of goods, but extends to all cases of the wrongful possession of them. 2 9 risen, lO C. B. (N. S.) 713. i" (1891) 1 Q. B. 730. 1 Blad.ei\. Higgs (1861), 10 C. B. (N. S.) 713; 11 H. L. O. 621. 2 Blades v. Higgs, ubl supra. It has been doubted, indeed (Olerk and Lindsell on Torts, p. 163, 6th ed.), whether this remedy extends to a mere wrongful detention of a possession lawfully acquired, as in the case of a bailee refusing to return a chattel. There is no suggestion ot any such limitation in Blades v. Higgs. 174 EXTRAJUDICIAL REMEDIES. [CHAP. IV. Quaere as to entry on land to take chattels. No right of recaption un- less property recoverable by legal proceedings. 2. It is a matter of some doubt how far the right of re- taking chattels will serve to justify an entry on the land on which they are situated. It is clear, indeed, that if the occu- pier of the land has himself wrongfully taken and placed the goods there, the owner of them may enter and take them. But what if the occupier is in no way responsible for the presence of the goods on his land, but merely refuses to give them up, or to allow the owner to enter and take them; as in the case of a tenant who gives up possession of the land, but leaves a chattel behind him, and then seeks to recover it? This is a question that has more than once come before the Courts, , but has not yet succeeded in obtaining a definite and comprehensive answer. ^ 3. It seems clear on principle that the right of recaption does not exist, unless there is a right to the possession of the property; and that a right to possession means, for this pur- pose, one that is specifically enforceable by judicial proceed- ings. If, therefore, the claimant cannot by way of judicial jDroceedings obtain specific restitution of the property, he can- not recover it by recaption either. For the Courts cannot suffer a man to take for himseK that which he cannot obtain by way of an action. If this is so, it follows that there is no right of recaption in the following cases: — ((?) When the right of action for damages for a con- version is barred in favour of the possessor by the Statute of Limitations;* (b) When, since the date of the conversion, the value of the property has been increased by the act of the possessor, or any other event has happened which would induce the Courts to refuse an order for the specific restitution of the property. ^ 3 Patrick V. Colerick (1838), 3 M. & W. 483; Antlwny v. Saneys (1832), 8 Bing. 186; Blaokatone's Comm. III. 5; Weh'h v. Beavan (1844), 6 M. & G. 1055; Wilde v. Waters (1855), 16 C. B. 637. Not- withstanding the dicta in this last case, there can, it is submitted, be no real doubt that if the occupier of land on which the plaintiff's gooda have in any manner come refuses either to deliver them or to allow the plaintiff to enter and take them, he is liable to the plaintiff in an action of trover. * Pollock and Wright on Possession, p. 115. 5 Infra, Ch. X. on Conversion. SKCT. 49] ABATEMENT OF NUISANCES. 175 § 49. Abatement of Nuisances. 1. It is lawful for any occupier of land, or for any other Occupier person by the authority of the occupier, to abate {i.e., to ter- abate'a™''^ minate by his own act) any nuisance by which that land is nuisance, injuriously affected. Thus the occupier of land may cut off the overhanging branches of his neighbour's trees, or sever roots which have spread from these trees into his own land.^ So also he may pull down an obstruction to his ancient lights, remove any barrier erected elsewhere against the flow of a natural stream through his land, divert a stream of water which is wrongfully cast upon his land, break down a fence which obstructs his right of way, or put out a dangerous fire which has been lighted or suffered to burn upon the adjoining property. 2 2. As sufficiently appears from these illustrations, the term Rule extends nuisance, as used in the foregoing rule, includes not merely ^nce of " nuisances in the strict sense of that term — viz., the escape of servitudes, deleterious substances from the land of one man into that of another — but also the disturbance of any servitude, such as a right of way or of light, appurtenant to land . 3. Subject to certain requirements as to prior notice, Entry on which will be considered later, the right of abatement purpose, extends to the cases in which it is necessary for the abator to enter upon the land of the other party, no less than to those cases in which he can attain his purpose by acts done exclu- sively on his own property. 4. The right of removing things that are on one's own Eight of land, such as the roots and branches of a neighbour's tree, di8tin™uil*hed goes further than a mere right of abating a nuisance, for it from right of . 1111- 1 !_■ removing presumably exists whether the things so removed constitute things from an actionable nuisance or not. No action will lie for allowing p®'^ °^" a tree to overgrow one's boundary, unless it is the cause of 1 Lemmon v. Webb, (1894) 3 Oh. 1; (1895) A. C. 1. 2 See on the whole matter: Jones v. Williams (1843), 11 M. & W. 176; Roberts v. Rose (1865), 4 H. & C. 103; Penruddock's case (1597), 5 Co. Rep 101; Earl of Lonsdale v. Nelson (1823), 2 B. & 0. 302; Rex v. Rosewell (1699), 2 SaLk. 459; Lemmon v. Webb, (1894) 3 Oh. 1; (1895) A. O. 1. 176 EXTRAJUDICIAL REMEDIES, [CHAP. IV. Abatement when occupier not liable for nuisance. Unnecessary damage. No right of abatement where no injunction could be obtained. In whom right vested. Necessity of notice before abatement. actual damage; but there is no reason to suppose that the right of cutting the roots and branches is subject to any such limitation, for this right is simply a part of the occu- pier's right of exclusive possession and of doing as he pleases with his own. 3 . The right of entry and abatement presumably extends even to those exceptional oases in which, although a nuisance exists on the adjoining land, the occupier of that land is not responsible for it; but in such a case a notice and request would seem to be a condition precedent to any lawful entrj- or abatement.^ 6. In abating a nuisance any unnecessary damage done is an actionable wrong. ^ 7. It is to be assumed that there is no right of entry and abatement in a case in which, although an actionable nui- sance exists, an injunction against the continuance of it could not be obtained. If, for example, a house is built which obstructs ancient lights, but to so small an extent or under such circumstances that no mandatory injunction would be granted to pull the house down, it cannot be supposed that the owner of the obstructed light is nevertheless at liberty to attain the same end by the exercise of his right of abate- ment.^ 8 . In ordinary cases the right of abatement, like the right of action for a nuisance, is vested exclusively in the occupier of the land affected ; but there seems no reason why a similar right should not belong to the owner of a reversionary interest in the land in those exceptional cases in which a nuisance is actionable at his suit. 9. The question of the necessity of notice before abate- ment is one involved in some uncertainty. It is clear, how- 3 Smith V. Giddy, (1904) 2 K. B. 448. * See Saxby v. Manchester # Sheffield Rly. Co. (1869), L. R. 4 C. P. 198. 5 Roberts v. Rose (1865), 4 H. & C. 103. * This question is discussed but not decided in Lane v. Capsey, (1891"> 3 Ch. D. 411. SECT. 49] ABATEMENT OF NUISANCES. 177 ever, that there are at least two cases in which no notice is required : — (a) When there is no entry on the land of the othei' party — e.g., cutting roots and branches;^ (&) In case of emergency — i.e., where the nuisance threatens such immediate harm to person or pro- perty that the delay involved in giving notice would be unreasonable.* It seems clear also that there are two cases in which notice must be given: — (a) When the nuisance was committed, not by the present occupier, but by a predecessor in title;'-' (b) When the occupier is not responsible for the creation or continuance of the nuisance. Whether notice is required in other cases is a question to which no certain reply can be given. In Lemmonv Webb'^^ there is an obvious inclination to state the rule in the general form, that in all cases of entry and abatement notice is re- quired except in case of emergency. In Jones v. WUlianisM on the other hand, the opinion is expressed that the require- ment of notice is exceptional, and a distinction is drawn between cases in which the nuisance is created by the occupier and those in which it is an inheritance from his predecessor in title. ^^ 10. It is lawful for any person to abate a public nuisance Abatement to a highway, so far as it is necessary to enable him to exer- °oa™Shway cise hie right of way thereon. Thus, if a fence is unlawfully erected across a highway, or a gate wrongfully locked, any member of the public may in the exercise of his right of way remove the fence or break open the gate. And this is so ' Lemmon v. Webb, (1895) A. C. 1. » Jones V. Waiiams (1843), 11 M. & W. p. 182; Lemmon v. Webb, (1894) 3 Ch. p. 13. 9 Jones V. Williams (1843), 11 M. & W. 176. 10 (1895) A. C. 1. 11 (1843), 11 M. & W. 176. 12 In Earl of Lonsdale v. Nelson (1823), 2 B. & 0. 302, a distinction is drawn by Best, J., between nuisances of omission and of commission, but as to this, see the criticism of Lord Davey in Lemmon v. Webh, (1895) A. O. p. 8, and the explanation of Baron Parke in Jones v. Williams, 11 M. & W. p. 181. 12 178 EXTRAJUDICIAL REMEDIES. [cHAP. IV. even though the obstruction has been erected in the exercise of a bond fide but unfounded claim of right. Probably this right of abatement exists even though the abator cannot prove that he has sustained any such special damage as is required to confer upon him any private right of action. ^^ The right of abating a nuisance on a highway extends only to nuisances of commission, and not to those of omission so as to entitle any member of the public to undertake the repair of a highway or the creation thereon of a permanent structure, such as a bridge which he may consider necessary for the convenient exercise of his right of passage. Such acts must be done by those who are charged with the common law or statutory duty of repairing or constructing highways.^* Right of dis- tress damage feasant. Right limited to occupier. No right of distress if § 50. Distress Damage Feasant. 1 . It is lawful for any occupier of land to seize any cattle or other chattels which are unlawfully upon his land doing damage there, and to detain them until payment of com- pensation for the damage done. This right is known as that of distress damage feasant — i.e., the right of distraining things which are doing damage on the distrainor's land. In all ordinary cases the things so distrained are cattle or other trespassing animals, but the right extends to all chattels animate or inanimate. Thus a railway company has been held entitled to seize and detain a locomotive engine which was wrongfully encumbering its lines. ^ 2. The right of distress damage feasant is vested, in general, only in the occupier of land. Mere use without exclusive possession is, it may be assumed, as insufficient to confer this right as it is to confer the right to eject a tres- passer or to sue in an action of trespass. ^ 3. The thing distrained must be unlawfully on the land — 13 Webber v. tiparkes (1842), 10 M. & W. 485; Dimes v. Petley (1850), 15 Q. B. 276; Winterbottom v. Lord Derby (1867), L. R. 2 Ex 316. 1* Campbell Davys v. Lloyd, (1901) 2 Ch. 518. 1 Ambergate Rly. Co. v. Midland Sly. Co. (1853), 2 E. & B. 793. 2 Cf. Burt V. Moor (1793), 5 T. R. 329. SECT. 50] DISTRESS DAMAGE FEASANT. 179 i.e., it must be there under such circumstances that an action "" "^^"^ ,, , -11 T • 1 "* action. lor damages will lie against the owner or some other person responsible for it. Where no action will lie, there can be no distress either: for example, when cattle, being lawfully driven along the highway, stray into the adjoining land, there is neither action nor right of distress unless they are allowed to remain there for a time longer than is reasonably necessary for their removal. ^ The right of action, however, need not be against the owner of the thing distrained. If the thing is present by the wrong of him who had the custody of it, or possibly even by the wrong of a mere stranger, it may be seized and detained as a security for compensation.* 4. There must be actual damage done by the thing dis- Necessity trained; for it is rightly taken and detained only as a security damao-e. for the payment of compensation, and when there is no damage done there can be no compensation due. This damage, however, need not be done to the land itself or to things forming part of the freehold, such as crops. It is sufficient if damage is done on the land to the property or, presumably, the person of the occupier. Thus, in Boden v. Roscoe^ it was held that a pony might be lawfully distrained for trespassing in a field and there kicking a lilly belonging to the occupier. 5 . The thing must be seized while still on the land . There Limits of is no right of following it, even in fresh pursuit, and even "jfti^ess if it is purposely removed by its owner in order to avoid distress.^ 3 Tillett V. Ward (1882), 10 Q. B. D. 17; Goodwyn v. Ohevelei/ (1859), 4 H. & N. 631. 1 1 EoU. Ab. 665, Distress, D. = (1894) 1 Q. B. 608. 6 Vaspor V. Edwards (1701), 12 Mod. 658; 1 Co. Inst. 161a. The nisi prius case of Warmer v. Biggs (1845), 2 C. & K. 31, seems to have proceeded on a misapprehension of the law. The proposition that the thing distrained must be taken while actually doing the damage does not mean that it must be seized in the very act, but merely that it must be seized on the land on which it has done the damage, and not after an interval during which it has been elsewhere. See, for example, Boden V. Roscoe, (1894) 1 Q. B. 608. Neither is distress damage feasant it precautionary measure against probable damage in the future, but a. security for compensation for accomplished damage in the past. 12(2) 180 EXTRAJUDICIAL REMEDIES. [cHAP. IV. 6. If the same thing comes more than once upon the same laud it cannot be distrained or detained on a subsequent occasion in .respect of damage done by it on a former visit.'' 7. If several animals or other things belonging to the same owner trespass and do damage, each of them can be distrained and held for its own share of the damage only; one of them cannot be detained as a security for the whole claim. 8 8. It is not lawful by way of distress damage feasant to take a thing out of the immediate personal control or use of another person: for example, a horse which another person is wrongfully riding across one's land.^ This is an exception said to be established in the interests of the public peace. ISTevertheless the occupier retains his right of forcibly re- moving from the land, though not of seizing and detaining, the things which a trespasser thus brings with him . No right 9. The right of distress damage feasant includes no right of sale, but merely a right to retain the thing until adequate compensation is made. Formerly the law was the same in the case of distress for rent also, but the statutes which confer a power of sale on landlords have left unaffected the common law as to distress damage feasant. How things 10. Things distrained damage feasant may at the option are to be dealt 0^ the distrainor be kept by him on the premises where ■^i'^- thej' were seized, or kept in his own custody elsewhere, or impounded by him in a public pound. i" By statute he is bound to provide animals impounded by him with food and water. 11 Right of ]l. Tlie exercise of the right of distress damage feasant action sus- i i • i i> • n i t pended by Suspends the right oi action for the damage complained of, distress. g^ j^^^ ^^ ^j^g detention of the property continues. Distress and action are alternative remedies which cannot be concur- rently pursued. If, however, the property distrained perishes ■' Vaspor V. Edtvards (1701), 12 Mod. p. 660. 8 Ibid. 9 Storey v. Robinsoti (1795), 6 T. R. 138: Field v. Adames (1840), 12 A. & E. 649. 10 Vaspor v. Edwards (1701), 12 Mod. at p. 664. " 1 & 2 Geo. V. c. 27, s. 7. SECT. 50] DISTRESS DAMAGE FEASANT. 1^1 or is lost without the distrainor's fault, he is remitted to his right of action, and so also if the property is restored to the owner. ^2 12 Vaspor V. Edwards (1701), 12 Mod. 658; Zefuiin v. Philpott (1875), L. E. 10 Ex. 242; Boden v. Roscoe, (1894) 1 Q. B. 608. As to the effect of t«nder, and the remedies of the owner for the recovery of chattels dis- trained damage feasant, see the following cases: Six Carpenters' case, 6 Co. Rep. p. 147a; Chdliver v. Cosens (1845), 1 O. B. 788; Browne v. Powell (1827), 4 Bing. 250; Sherif v. James (1823), 1 Bing. 341; Anscomb v. SJiore (1808), 1 Camp. 285; Thomas v. Barries (1840), 1 IE. & G. 695; Green v. Buckett (1883), 11 Q. B. D. 275; West v. Nibbs (1847), 4 C. B. 172. If no sufficient tender is made until after im- pounding in a public pound, and a sufficient tender is made thereafter and refused, the remedy of the owner is to replevy the chattels. He cannot sue in detinue or trover, nor can he pay an excessive demand and then sue for its recovery. 182 CHAPTEE V TRESPASS TO LAND. Forms of action : their subsisting importance. Trespass and case distill g-uished. § 51. Old Forms of Action. Trespass and Case. 1 . Under the old system of procedure the wrong of trespass to land (trespass quare clausum fregit) was simply a special form of tlie generic wrong of trespass. This is a convenient place, therefore, in which to consider the nature and scope of the old writ of trespass and its relation to other forms of action. This is an inquiry which is still necessary and pro- fitable, notwithstanding the abolition of forms of action, for at least three reasons. In the first place, to one who is wholly ignorant of the old learning of writs and forms of action many of the older authorities on liabilities for civil injuries are unintelligible and misleading. Secondly, even at the present day, all satisfactory definition and classification of the difl^erent species of such injuries must be based on the old procedural distinctions between forms of action, and must conform to those distinctions except in so far as they no longer have any relation to the substantive law of the present dsij. Thirdly, questions as to the existence, nature, and extent of liability depend even yet in many instances on the particular kind of writ or remedy that would have been available for the plaintiff under the old practice. 2. Omitting certain special remedies of minor importance, we may say that under the old practice the ordinary remedies for torts were two in number — namely, the action of trespass and that of trespass on the case (commonly called by way of abbreviation case simply). Trespass was the remedy for all forcible and direct injuries, whether to person, land, or chattels. Case, on the other hand, was a supplementary SKCT. 6l] 'l^KKSHASS AND CASE. 183 form of action, provided for all injuries not amounting to trespasses — that is to say, for all injuries which were either not forcible or not direct, but merely consequential. The term forcible is here used in a wide and somewhat un- Forcible natural sense to include any act of physical interference with i°ji"es- the person or property of another. To lay one's finger on another person without lawful justification is as much a forcible injury in the eye of the law, and therefore a trespass, as to beat him with a stick. To walk peacefully across another man's land is a forcible injury and a trespass, no less than to break into his house vi et armis. But when there is no physical interference there is no trespass, and the proper remedy is case : as, for example, in libel, malicious prosecu- tion, or deceit.^ To constitute a trespass, however, it is not enough that Direct and the injury should be forcible; it must be also direct and not i^f^^^"^ merely consequential. An injury is said to be direct when it follows BO immediately upon the act of the defendant that it may be termed part of that act; it is consequential, on the other hand, when, by reason of some obvious and visible in- tervening cause, it is regarded, not as part of the defendant's act, but merely as a consequence of it. In direct injuries the defendant is charged in an action of trespass with having done the thing complained of; in consequential injuries he is charged in an action of case with having done something else, by reason of which (per quod) the thing complained of has come about. In Leame v. Bray^ the distinction is thus expressed and illustrated by Le Blanc, J. : " In all the books the invariable principle to be collected is that where the injury is immediate on the act done, there trespass lies; but where it is not immediate on the act done, but consequential, there the remedy is in case. And the distinction is well instanced by the example put of a man's throwing a log into the highway; if at the time of its being thrown, it hit any person, it is trespass; but if after it be thrown, any person going along the road receive an injury by falling 1 Caiitty's Pleading, I. 140, 7th ed. 2 (1803), 3 East, at p. 602. 184 TRESPASS TO LAND. LCHAP. Trespass not necessarily an intentional injury. over it as it lies there, it is case. . . . Trespass is the proper remedy for an immediate injury done by one to another, but where the injury is only consequential from the act done, there it is case." To take other illustrations of the distinction: to plant a tree with its roots across the boundary of one's own land is a trespass, but to plant a tree in one's own land and to allow it to spread its roots or branches across the boundary is no tres- pass, but is actionable only in case, if at all.^ So the act of throwing water into one's neighbour's premises is a trespass; but to fix a spout in such a fashion that rain water is dis- charged by it into those premises is a mere nuisance action- able in case.* Throwing a match, whether accidentally or on purpose, into another man's haystack is a trespass; lighting a fire on one's own land, which spreads into the adjoining property and burns a haystack there, is actionable only in case. ! 3. This distinction between direct and consequential injury is not identical with that between intentional and accidental or negligent injury. These are cross divisions. Trespass lies for all direct injuries, whether wilful or merely negligent. Case is the appropriate remedy for all consequen- tial injuries, even if they are intended. This was finally settled by the case of Leame v. Bray,^ in which it was held that the act of the defendant in negligently driving his car- riage so as to bring it into collision with that of the plaintiff was actionable in trespass. " There being an immediate in- jury from an immediate act of force by the defendant, the proper remedy is trespass, and wilfulness is not necessary to constitute trespass . " ^ '' 3 Zemmon v. Webb, (1894) 3 Ch. p. 11, per Lindley, L. J. i Seynolds v. Clarke (1725), 1 Str. 634; 2 Ld. Raym. 1399. 5 (1803), 3 East, 593. 6 3 East, p. 600. ' This distinction between direct and consequential injuries does not seem to possess any logical basis. The distinction between an act and its consequences — between doing a mischief and causing one — seems to be nothing more than an indeterminable difference in degree. In popular speech every act includes within its compass certain of its more imme- diate consequences and excludes its more remote consequences. When I pull the trigger of a loaded gun, at what point in the infinite series SECT. 51] TRESPASS AND CASE. 185 4. The term trespass has been used by lawyers and laymen Different • ii J. • 1 PI- /ST- senses of the in three senses oi varying degrees oi generality, (a) in its term trespass. widest and original signification it includes any wrongful act — any infringement or transgression of the rule of right. This use is common in the Authorised Version of the Bible, and was presumably familiar when that version was first pub- lished. But it never obtained recognition in the technical language of the law, and is now archaic even in popular speech, (b) In a second and narrower signification the term means any legal wrong for which the appropriate remedy was a writ of trespass as already defined — viz., any direct and forcible injury to persons, land, or chattels, (c) The third and narrowest meaning of the term is that in which, in accordance with popular speech, it is limited to one particular kind of trespass in the second sense — viz., the tort of trespass to land (trespass quare clausum f regit). It is with this only that we are in the present chapter concerned. of results does my act stop and its consequences begin ? In any case the distinction in question is not one which is entitled to any permanent recognition in a rational systesm of law, being merely an inheritanoe from an obsolete system of procedure and the product of historical accidents of development. In an exposition of our law as it stands, how- ever, it is necessary to recognise the distinction, for the existence and extent of liability and the nomenclature and classification of civil injuries still depend upon it. In the old practice the distinction between trespass and case was further complicated by the fact that in certain instances these two remedies were concurrent, the plaintiff having the option of suing in either form of action for the same injury. Thus, when a trespass pro- duced not only a direct but also a consequential injury, the plaintiff might either sue in trespass (alleging the consequential injury as special damage), or he might waive the trespass and sue in case for the conse- quential injury as the cause of action. Scott v. Shepherd (1772), 2 W. Bl. p. 897, per Blackstone, J. So also it was settled, illogically enough, that when damage was caused by negligence, the plaintiff could always sue in case, if he pleased, even though the injury was direct; yet in strict logic trespass was in such instances the exclusive remedy. Moreton v. Hardern (1825), 4 B. & 0. 223. Where, however, the injury was wilful and direct, case was not available. Such departures from the strict application of the distinction no longer concern us, for they have left no traces in the substantive law and may now be wholly dis- regarded. On the whole matter, see also Holmes v. Mather (1875), L. R. 10 Ex. p. 268; Morley v. Gaisford (1795), 2 H. BI. 441; Hopper v. Reeve (1817), 7 Taunt. 698; Ogle v. Barnes (1799), 8 T. R. 188; Soott V. Shepherd (1772), 2 W. Bl. 892. The dissenting judgment of Black- stone, J., in this case must be taken to be correct in principle. 186 TRESPASS TO LAND. [chap. V. Trespass (juare elamuiii frerjit defined. Entry. Trespass actionable Trespass by abuse of right of entry. § 52. The Nature of Trespass to Land. 1 . The wrong of trespass to land (trespass quare clausum fregit) consists in the act of (a) entering upon land in the possession of the plaintiff, or (&) remaining upon such land, ov (c) placing any material object upon it — in each case without lawful justification. 2. Trespass by ivrongful entry. The commonest form of trespass consists in a personal entry by the defendant, or by some other person through his procurement, into land or buildings occupied by the plaintiff. The slightest crossing of the boundary is sufficient — e.g., to put one's hand through a window, or to sit upon a fence. Nor, indeed, does it seem essential that there should be any crossing of the boundary at all, provided that there is some physical contact with the plaintiff's property .^ 3. This and all other forms of trespass to land are action- able fer se without any proof of damage. ^ If the entry is intentional, it is actionable even though made under an in- evitable mistake of law or fact,^ and therefore an action of trespass may be used to determine a disputed title to land. An accidental, as opposed to a mistaken entry, on the other liand, is not actionable unless due to negligence. No action will lie against a defendant whose horse runs away with him on a public highway, and carries him without any negligence of his upon the adjoining land of the plaintiff.* 4. Even he who has a right of entry on the land of another for a specific purpose commits a trespass if he enters for any other purpose. The chief application of this rule is the abuse of a right of way, public or private; but presumably tire same principle applies to all rights of entry. A public high- way is a piece of land vested either in some local authorit}' or in the adjoining landowners, and subject to a public right 1 Cf. Greyory v. Piper (1829), 9 B. & C. 591. 2 Ashby V. White, 2 Ld. Raym. p. 955, per Holt, C. J. 3 Basely v. Clarkson (1682), 3 Lev. 37. 1 See Stanley v. Powell, (1891) 1 Q. B. 86; Eolmes v. Mather (1875), L. R. 10 Ex. 261. These are oases of trespass to the person, but there is no reason to doubt that the principle applies generally to all forms of trespass. SKCT. 62j TllK NATUKE OF TRESPASS. 187 of way. Any person, therefore, who uses a highway for any purpose other than that of passage (including the subordi- nate purposes reasonably and ordinarily incident to passage) becomes thereby a trespasser against the owner of the soil, and like any other trespasser may be either sued in trespass or forcibly ejected. Thus, it is a trespass to depasture one's cattle on the highway,^ or to go there for the purpose of interfering with the adjoining occupier's right of shooting,'' or of watching what is being done on the adjoining land.'' It is not necessary that the thing so done in abuse of the right of entry should be the cause of any harm to the occu- pier of the land or to any one else. It is enough that it falls outside the purpose for which the right is conferred. But if the act done on the land is within that purpose, it does not matter what ulterior object the defendant may have in exer- cising his right of entry. Thus, it is not a trespass to walk along a highway with the object of committing a crime else- where.^ Moreover, even a wrongful act done upon the land itself does not make the defendant a trespasser within the present rule, unless it can be shown that he entered for that purpose. If he entered for a lawful purpose, he is no tres- passer unless the case is one to which the doctrine of tresjjass ab initio applies.^ 5. Trespass by remaining on land. Even a person who Trespass by has lawfully entered on land in the possession of another on 'land. " commits a trespass if he remains there after his right of entry has ceased. To refuse or omit to leave the plaintiff's land is as much a trespass as to enter originally without right. Thus, any person who is present by the leave and license of the occupier may, on the termination of that license, be sued or ejected as a trespasser, if after request he fails to leave the premises. 1" 5 Bovaston v. Payne (1795), 2 H. Bl. 527. 6 Harrison v. Duke of Rutland, (1893) 1 Q. B. 142. '' Hickman v. Maisey, (1900) 1 Q. B. 752. 8 Harrison v. Duke of Rutland, (1893) 1 Q. B. p. 158, per Kay, L. J. 9 Hickman v. Maisey, (1900) 1 Q. B. at p. 757, per Collins, L. J. 10 Winterbourne v. Morgan (1809), 11 East, 395; Playfair v. Mus- grove (1845), 14 M. & W. 239; Ash v. Dawney (1852), 8 Ex. 237; Wood V. Leadbitter (1845), 13 M. & W. 838. ^ ^8 TRESPASS TO LAND. [CHAP. V. Wrongful Thh case must be distinguished from that of a person possession inn- • l> i 1 i n • • no trespass. lawfully in possession of land who refuses or omits to give it up on the termination of his lease or other interest. A lessee holding over is no trespasser; for a trespass can he committed, as we shall see, only against the person in the present possession of the property. ^^ Trespass by 6. Trespass hti placing thinqs on land. It is a trespass to placmgthings u • i u • ^ ^ ^u ^ i * <-U l • on land. cause any physical object to cross the boundary of the plain- tiff's land, or even to come into physical contact with the land, even though there may be no crossing of the boundary: for example, to turn cattle upon the land, or to throw stones upon it, or to drive nails into a wall, or to pile rubbish against it.^^ In all such cases, in order to be actionable as a trespass the injury must be direct, within the meaning of the distinc- tion between direct and consequential injuries which has been already explained as determining the line between trespass and case. It is a trespass, and therefore actionable par se, directly to place material objects upon another's land; it is not a trespass, but at the most a nuisance or other wrong actionable only on proof of damage, to do an act which consequentially results in the entry of such objects. To throw stones upon one's neighbour's premises is the wrong of trespass; to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance. ^^ Continuing 7. That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrong- doer, and giving rise to actions de die in diem so long as it 11 Hey V. Moorhouse (1839), 6 Bing. N. C. 52; Neioton v. Earland (1840), 1 M. & G. p. 659. 12 Chitty's Pleading, I. 199, 7th ed.; Pickering v. Jiudd (1815), 4 Camp. p. 2,20; Gregory v. Piper (1829), 9 B. & C. 591. 1^ It is true that under the old practice the wrong of allowing cattle to stray into another's land was dealt with by writ of trespass, but this must be regarded as an anomaly. Chitty's Pleading, I. 202, 7th ed. To drive cattle upon another's land is a true trespass; to aVoir them by default of fencing or watching to escape into another's land is not in truth a trespass, but a nuisance, and in strictness the remedy ought to have been in case. It is impossible logically to class the escape of cattle as a trespass, and the escape of water as a nuisance. There seems no sufficient reason to suppose that the straying of cattle is actionable per se, any more than any other kind of nuisance is. trespasses. SKCT. 52j THE NATURE OF TRESPASS, 189 lasts, is sufficiently obvious. "A continuation of every tres- pass is in law a new trespass. "^^ It is well settled, however, that the same characteristic belongs in law even to those trespasses which consist in placing things upon the plaintiff's land. Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing; succes- sive actions will lie from day to day until it is so removed: and in each action damages (unless awarded in lieu of an injunction) are assessed only up to the date of the action. i' Whether this doctrine is either logical or convenient may be a question, but it has been repeatedly decided to be the law. Thus, iu Holmes v. ^Yilson,'^^ the defendants, high- way authorities, supported a road by building, buttresses for it on the plaintiff's land, who sued in trespass and accepted monej" paid into Court iu full satisfaction. Yet it was held that this was no bar to a subsequent action between the same parties for the further continuance of the buttresses there. So in Hudson v. Nicholson^'^ the defendant wrong- fully placed certain timbers on the adjoining land in order In support his house. This land having been subsequently pur- chased by the plaintiff, he was held entitled to sue in trespass for the continuance of the timbers on his property.!^ These cases of continuing trespass must be distinguished Distinguished from cases of the continuing consequences of trespass which is J°™in^"on. over and done with. If I trespass on another's land, and sequences of make an excavation there, the trespass ceases so soon as I leave the land, and does not continue until I have filled the excavation up again. Consequently only one action will lie, and in it full damages are recoverable for both the past and the future. 13 Aliter if I have brought a heap of soil and left it on the plaintiff's land. y. In general he who owns or possesses the surface of Trespass land owns or possesses all the underlying .sira^ff also. 20 Any ^urfa'ce. 11 lVinteiboui)ie V. Mortjrni (1809), 11 East, p. 405. 15 Supra, a. 37 (5), (6), (9). 16 (1839), 10 A. & E. 503. 1' (1839), 5 M. & W. 437. IS See also Botryer v. Cooke (1847), 4 C. B. 236. 19 Cleyg v. Dearden (1848), 12 Q. B. 576. 20 Corbett v. Sill (1870), L. R. 9 Eo- p. 673. As to the ownership of 190 TRESPASS TO LAND. [CHAP. V. entry beneath the surface, therefore, at whatever depth, is an actionable trespass; as when the owner of an adjoining coal- mine takes coal from under the plaintiff's land. Where the possession of the surface has become separated from that of the subsoil (as by a conveyance of the subsoil for mining purposes, reserving the surface) any infringement of the horizontal boundary thus created is a trespass. Trespass 9. It is commonly said that the ownership and possession surface. of land bring with them the ownership and possession of the column of space above the surface ad infinitum. Cujus est solum, ejus est usque ad coelum.-'^ This is doubtless true to this extent, that the owner of the land has the right to use for his own purposes, to the exclusion of all other persons, the space above it ad infinitum. He may build the Tower of Babel if he pleases, and may remove all things s'tuated above the surface, even though they are the property of others, and though their presence there does him no harm and is no wrong for which he has any right of aotiou against their owners. Thus, he may cut the overhanging branches of a tree growing in his neighbour's land, whether they do him harm or not;^^ ygt he has no right of action against the owner of the tree unless he can show actual damage. ^^ So he may cut and remove a telegraph or other ele3tric wire stretched through the air above his land, at whatever height it may be, and whether he can show that he suffers any harm or inconvenience from it or not. 2* It does not follow from this, however, that an entry above the surface is in itself an actionable trespass; nor is there any sufficient authority that this is so. Such an extension of the rights of a landowner would be an unreasonable restriction of the right of the public to the use of the atmospheric space above the earth's surface. It would make it an actionable the subsoil of highways, see Ooverdale v. Charlton (1878), 4 Q. B. D. 104; Mayor of Tunbridje Weill v. Baird, (1896) A. C. 434. 21 Ck). Litt. 4a; Corbett v. Hill (1870), L. R. 9 Eq. 6J1. " Lemmon v. Webb, (1895) A. C. 1. 23 Smith V. Giddy, (1904) 2 K. B. 448. 21 Wandsivorth Board of Works v. United Telephone Co. (1884), 13 Q. B. D. p. 927, per Fry, L. J. SECT. 62] THE NATURE OE TRESPASS. 191 wrong to fly a kite, or send a message by a carrier pigeon, or ascend in a balloon, or fire artillery, even in cases where no actual or probable damage, danger, or inconvenience could be proved by the subjacent landowners. The state of the authorities is such that it is impossible to say with any confidence what the law on this point really is. It is sub- mitted, however, that there can be no trespass without some phj'sical contact with the land (including, of course, buildings, trees, and other things attached to the soil), and that a mere entry into the air-space above the land is not an actionable wrong unless it causes some harm, danger, or inconvenience to the occupier of the surface. When any sueh harm, danger, or inconvenience does exist, there is a cause of action in the nature of a nuisance.-'^ ' § 53. The Title of the Plaintiff. 1. A. trespass is actionable only at the suit of him who is in Plaintiff possession of the land. This forrn of injury is essentially a possession. violation of the right of po^ession, not of the right of pro- perty . It is a disturbance of the right of exclusive use vested in the occupier of land. Ownership unaccompanied by pos- session is protected by other remedies, but not by an action of -^ In Pickering f. Sudd (1815), 4 Camp. 219, trespass was brought for the fixing by the defendajit on his own land of a board which projected into the apace above the plaintiff's land. But Lord Ellen- borough said : "I do nOt think it is a trespass to interfere with the column of air superincumbent on the clo3«. . . If this board over- han«ring the plaintiff's garden be a trespass, it would follow that an aeronaut is liable to an action of trespass quare clmuum iregit at the suit of the occupier of every field over which his balloon passes in the course of his voyage. ... If any damage arises from the object which overhangs the close the remedy is by an action on the case." See also Clifton V. Viscount Bury (1887), 4 T. L. R. 8 (firing of projectiles). On the other hand, in Wandstvorth Board of Works V. United Telephone Co. (1884), 13 Q. B. D. 904, it seems to have been assumed by the C5ourt of Appeal that any entry into the space above a plaintiff's land is action- able as a trespass per se. See pp. 915, 919, 927. See also Kenyon v. Hart (1865), 6 B. & S. p. 252, per Blackburn, J. In Fay v. Prentice 0845), 1 C. B. 828, Baten's case, 9 Rep. 53, and Penruddock's case, 5 Rep. 100, projections over the plaintiff's land were dealt with as nuisances, not as trespasses. As to things placed over a public high- way, see Wandsworth Board of Works v. United Telephone Co. (1884), 13 Q. B. D. 904. See also Andrews v. .ibertillery Urban Council, (1911) 2 Ch. pp. 406, 408, 413, 415. 192 TRESPASS TO LAND. [chap. V. Use of land without pos- session not sufficient. Jus tertii no defence in action of trespass. trespass. 1 Thus, a landlord cannot sue for a mere trespass to land in the occupation of his tenant; such an action can be brought only by the tenant. The landlord has no right of action unless he can prove more than a mere trespass — viz., actual harm done to the property, of such sort as to affect the value of his reversionary interest in it.^ 2. For the same reason the mere use of land, without the exclusive possession of it, is not a sufficient title to found an action of trespass for the disturbance of that use. Thus, in general a lodger or boarder has no possession of the room in which he is lodged, and cannot sue in trespass for any dis- turbance of his use of it.^ So with a guest at an inn or in a private house, or with a domestic servant or other member of a household. So also with the use of a seat in a theatre or a railway carriage, or the right to post advertisements on a wall or hoarding. Whether a person having thus the use of land without the possession of it has any remedy at all against a stranger who disturbs him is a question which we shall consider later.* In the meaiitime it is enough to note that he cannot sue as for a trespass to land, or exercise the rights of self-help available in the case of trespassers.^ 3 . The mere de facto and wrongful possession of land is a valid title of right against all persons who cannot show a better title in themselves, and is therefore sufficient to sup- port an action of trespass agfeinst isuch person. Just as a legal title to land without the possession of it is insufficient for this purpose, so conversely the possession of it without legal title is enough. In other words, no defendant in an action of trespass can plead the jus tertii — the right of pos- session outstanding in some third person — as against the fact of possession in the plaintiff .^ Adveisus extraneos vitiosa 1 Cooper V. Cmbtree (1882), 20 Ch. D. 589; Wallis v. Hands, (1893) 2 Ch. 75; Harrison v. Blackburn (1864), 17 C. B. QS. S.) 678; Turner v. Cameron's Coal Co. (1850), 5 Ex. 932. 2 The rights of reversionary owners will be considered in a later chapter, s. 95. 3 Allan V. Liverpool (1874), L. R. 9 Q. B. p. 191. 1 Infra, s. 76 (5). 5 Supra, s. 46 (2). 6 Graham v. Peat (1801), 1 East, 244; Chambers v. Donaldson (1809), SECT. 53] THE TITLE OF THE PLAINTIFF. 19^ possessio prodesse solet. It is otherwise, of course, if the defendant has done the act complained of by the authoritj , precedent or subsequent, of him who is thus rightfullv entitled. 4. Trespass by relation. He who has a right to the im- Trespass mediate possession of land, and enters in the exercise of that ^ ^^^ right, is then deemed by a legal fiction to have been in pos- session ever since the accrual of his right of entry, and may accordingly sue for any trespass committed since that time. This is known as the doctrine of trespass by relation, because the plaintiff's possession relates back to the time when he first acquired a right to the possession. Since the abolition of forms of action the rule has lost most of its importance; but as it still in certain cases affects the substantive law, it cannot be disregarded as obsolete. Thus, a person wrongfully disseised of his land may after re-entry sue for any trespass committed on the land during the period of his dispossession. So a lessee may sue for a trespass done between the granting of the lease and his entry in pursuance of it. So a landlord entitled to re-enter after the termination of the lease may after re-entry sue for any trespass committed since the lease determined. We shall sec in the next chapter how the action for mesne profits in case of dispossession is founded on the same rule of trespass by relation . • "Before entry and actual possession," says Blackstone,^ " one cannot maintain an action of trespass, though he hath the freehold in law. And therefore an heir before entry cannot have this action against an abator; though a dis- seisee might have it against the disseisor for the injury done by the disseisin itself, at which time the plaintiff was seized of the land ; but he cannot have it for any act done after the disseisin, until he hath gained possession by re-entry; and then he may well maintain it for the intermediate damage done; for after his re-entry the law by a kind of jtis post- 11 East, 65; Corporation of Hastings v. Ivall (1874), L. R. 19 Eq. at p. 585. '' Comm. III. 210. S. 13 194 TRESPASS TO LAND. [chap. V. Trespass as between co-owners. liminii supposes the freehold to have all along continued in him." So in Newton v. Harland,^ Bosanquet, J., says: " The lessor who is out of possession cannot maintain an action of trespass against the tenant holding over. He must first acquire a lawful possession before he can maintain such action . But if the lessor enters upon the land to take posses- sion, he may treat as trespassers all those who afterwards: come upon it, or who having unlawfully taken possession wrongfully continue upon the land." So in Anderson v. Radcliffe^ it is said: "When once there is an entry by the person having title, we look to the date when the title accrued, and consider him in possession from that time for the purposes of the action of trespass. "l" 5. One tenant in common or joint tenant of land cannot sue his co-tenant in an action of trespass unless the act of the defendant amounts either (1) to the total exclusion or ouster of the plaintiff, or (2) to destructive waste of the common property. For each of the co-tenants is entitled to the possession of the land, to use it in a proper manner, and to 'take from it the fruits and profits of that user. If one of the owners receives from the common property a larger share of the profits than that to which he is entitled, this is no tort against the other owner, but the proper remedy is an action for an account. ^i Trespass ab tnitio. § 54. Trespass ab Initio. 1 . He who enters on another's land by authority of law, and is subsequently guilty of an abuse of that authority by committing a wrong of misfeasance against that person, is deemed to have entered without authority, and is therefore 8 (1840), 1 M. & G. p. 659. 9 (1860), 29 L. J. Q. B. p. 128. If See also Barnett v. Earl of Guildford (1855), 11 Ex. 19; Litchfield V. Ready (1850), 6 Ex. 939; Butcher v. Butcher (1827), 7 B. & C. 399; Hey V. Moorhouse (1839), 6 Bing. N. O. 6Z; Ocean Accident Corporation. V. Ilford Gas Co., (1906) 2 K. B. 493. 11 Jacobs V. Seward (1872), L. K. 5 H. L. 464; WdUnson v. Hay- garth (1847), 12 Q. B. 837; Murray v. Hall (1849), 7 0. B. 441. For a full discussion of the rights inter se of co-owners of land or chattels, see Lindley on Partnership, pp. 33-40, 8th ed. SECT. 54J TRESPASS AB INITIO. I^'i liable as a trespasser ab initio for the entry itself and for all things done by him thereunder which cannot be justified save as done under lawful entry. 2. This rule, which is known as that of trespass ab initio, Xot limited applies not merely to entry upon land, but to all other acts '° jand''*"'*'' which, unless done by some special authority of law, would have amounted under the old practice to the wrong of tres- pass whether to the land, goods, or person of another: for example, the seizure of cattle damage feasant. If such an authority is subsequently abused by doing a wrongful act under cover of it, it is cancelled ab initio or retrospectively and deemed never to have existed, so that the exercise of it becomes actionable as a trespass. In other words, in an action of trespass to land, goods, or person, a plea that the act was done under authority of law may be efiectively met by a replication that the authority was subsequently abused. 3 . The leading authority for this doctrine is the case known Six Car- as the Six Carpenters' case, reported by Coke. There it is pe^ters' case. said:^ "When an entry, authority, or license is given to anj- one by the law, and he doth abuse it, he shall be a trespasser ab initio. . The law gives authority to enter into a common inn or tavern; so to the lord to distrain; to the owner of the ground to distrain damage feasant; to him in rever- sion 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 lord who distrains for rent or the owner for damage feasant works or kills the distress; or if he who enters to see waste breaks 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. So if a purveyor takes m_y 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." 1 (1610), 8 Co. Hep. 146a. Smith's L. C. I. 132, 11th ed. 13(2) \m TRESPASS TO LAND. [CHAP. V. KtfectHof 4 ipjje rule is primarily one of procedure, the effect of it under the old practice being that a writ of trespass would lie for the entry or seizure itself, instead of a writ of trespass or of case for the subsequent abuse only. In this respect the rule has now lost its significance; but its secondary effect upon the substantive law still remains — viz., that it enables the plaintiff to recover damages for the entire transaction, and not merely for the wrongful portion of it. If, for example, the defendant rightfully seizes the plaintiff's horse damage feasant, but subsequently injures or sells it, he is liable in damages for the seizure itself in an action which under the old practice would have been trespass de bonis asportatis .^ It is to be regretted that a legal fiction due to the misplaced ingenuity of some medieval pleader should have thus succeeded in maintaining its existence and oppressive operation in modern law. It has been abolished by statute in the case of distress for rent and in certain other instances, but it ought to be wholly eliminated from the law. Limits of 5 . The rule applies only to acts done in pursuance of an "entry, authority, or license given to any one by the law," as in the examples already given in the extract from the Six Carpenters' case. " Where an entry, authorit}-, or license is given by the party, and he abuses it, there he must be punished for his abuse, but shall not be a trespasser ab initio."^ Does not 6. The rule applies only when the subsequent abuse mere^acts of amouuts to a positive wrongful act, as opposed to a mere omission. omission or non-feasance. Thus, in the Six Carpenters' case itself it was resolved that the defendant was not a trespasser ab initio merely because he refused to pay for the quart of wine and the pennyworth of bread which he bought and con- sumed in the plaintiff's inn. For the same reason it is not trespass ab initio to refuse to deliver up a distress after payment or tender of the rent or compensation due to the distrainor. The remedy is trover, detinue, or replevin, not 3 Oxleij V. Watt.i (1785), 1 T. E. 12; Hagshaw v. Goward, Cro. Jac. 147. 3 Six Carpenters' case (1610), 8 Rep. 146b. SECT. 54] TRESPASS AB INITIO. 197 tre-spass.* Soaslieriff is not a trespasser rtb initio because ho wrongfully omits to discharge at the proper time a prisoner in his custody. 5^ 7 . The rule of trespass ab initio does not apply to irregu- Does not larities committed in the couree of an otherwise lawful aFstress" distress for rent, for it has been abrogated in this particular for '•ent. case by statute.' To distress damage feasant, however, the old law still applies. 8 § 55. The Measure of Damages in Trespass. 1. When a trespass has caused physical damage to the Ordinary land, the measure of damages is the loss thereby caused to damao-es. the plaintiff, which in all ordinary cases is measured by the resulting diminution in the value of the property. The measure of damages is not the cost of reinstatement — the cost i West V. Nibbs (1847), 4 O. B. 172. -> Smith V. Egginton (1837), 7 A. & E. 167. 6 It has been suggested, in consequence of expressions used in the Six Carpenters' case, that the true distinction is not between misfeas- ance and non-feasance, but between acts which do and those which do not under the old practice amount to trespass. It is difBcult, however, to reconcile such an interpretation with the authorities. To work a horse which has been lawfully seized damage feasant is not in itself a ti-es- pass, but it clearly makes the distrainor a trespasser ab initio. Oxley V. Watts (1785), 1 T. R. 12. Conversely, to remain on premises after the determination of a right of entry is a trespass, and yet it seems the better opinion that it does not amount to a trespass ab initio. It is impossible, however, to reconcile all the dicta or even all the decisions on this most confused and unsatisfactory branch of law. 7 11 Geo. II. c. 19, s. 19. 8 It seems that a lawful entry does not become by abuse a trespass ab initio, unless that abuse has reference to and so takes away the entire ground and reason of the entry. If there remains any independent ground or reason of entry, which is unaffected by the abuse, it will suffice to justify the entry and protect it from the rule of trespass ab initio. Thus, if a landlord enters lawfully to distrain, and seizes several chattels, some of which are properly distrainable, and some of which are not, he is not even at common law a trespasser ab initio by reason of this abuse; for it does not go to the whole justification of his entry. He can still justify it by reference to the chattels which he has lawfully distrained. Harveij v. Pocoek (1843), 11 M. & W. 740. On the same principle, if all the chattels seized were lawfully distrainable, but he subsequently committed an illegal act with respect to some of them, he would not, even before the Distress for Rent Act, have been a trespasser ab initio with respect to all. Dod v. Monger (1704), ft Mod. 215. If such cases are carried out to their logical consequences, they cut down, considerably the doctrine of trespass ab initio as it was understood in the time of the Six Carpenters. 198 TRESPASS TO LAND. [chap. V. Damages recoverable by occupier without title. Damages recoverable by occupier with limited interest. of restoring the land to the Condition in which it formerly was — a cost which may greatly exceed the actual diminution in the value of the land. Thus, if soil is wrongfully removed from the plaintiff's land, he cannot recover the cost of supply- ing its place with new soil; nor if an old building is pulled down can he recover the cost of putting up a new one, but merely the value of the old.^ 2. We have already seen that in an action of trespass de facto possession is a good title as against a wrongdoer. 2 What, then, is the measure of damages in such a case ? J.s a mere possessor without lawful title enabled not only to sue a wrongdoer in trespass, but also to recover the same damages as if he were the lawful owner ? On this point there is no authority, but there seems to be no reason why the rule in the case of land should be different from the rule in the case of chattels; and in the latter case it is well-established law that a possessor recovers the same damages as an owner.^ 3. When a tenant or other person in rightful occupation of land with a limited interest in it sues in trespass, what is. the measure of damages ? Is it the damage done to his own limited interest, or is it the whole damage done to the land ? On this point there seems to be no adequate authority; but it is settled that the bailee of chattels can recover in trespass or trover the whole value of the property, and not merely the value of his interest in it (holding the surplus in trust for the owner or other persons interested in the property);* and there seems to be no reason why the occupier of land should be in a different position. If a plaintiff in wrongful possession of land without any title at all can recover full damages, a 1 Witham v. Kershaw (1868), 16 Q. B. D. 613; Jones v. Gooday (1841), 8 M. & W. 146; Wigsell v. School for Indigent Slind (1882), 8 Q. B. D. 357; HosUng v. Phillips (1848), 3 Ex. 168; Lodge Holes Colliery v. Wednesbury Corporation, (1908) A. C. 323. 2 Supra, s. 53 (3). 3 Armory v. Delamirie (1721), 1 Str. 505. See The Winkfield, (1902) P. 42. * The Winhfield, (1902) P. 42. As to trespass to land, see Twyman T. Knowles (1853), 13 0. B. 222, but not© that the defendant was hLm- self the lessee of the land, and therefore could not be liable except to the extent of the plaintiff's interest. SECT. 553 MEASURE OF DAMAGES. i^9 plaintiff in rightful possession with a limited interest cannot be in a worse position . 4. When a trespass consists in some beneficial use wrong- Compensa- f uUy made of the plaintiff's land, even if it causes no damage beneficial use the plaintiff is entitled to claim by way of damages a reason- of land, able remuneration for that use, as if it had been had under an agreement; and in this remuneration compensation for any damage done to the land will be included. Thus, in Whitwham v. Westminster Brymho Coal Cofi the defendant company had for a considerable period made use of the plaintiff's land for the purpose of tipping upon it the spoil from their colliery, so that the land was rendered useless for any other purpose. It was held by the Court of Appeal that the proper measure of damages was not the mere market value of the land, but the amount which the defendants would have had to pay the plaintiff by way of reasonable remuneration for such use of the land under a contract — that is to say, the value of the land for tipping purposes to the defendants themselves. "If one person," says Lindley, L. J.,^ " has without leave of another been using that other's land for his own purposes, he ought to pay for such user." And according to Rigby, L.J.:'' "The principle is that a trespasser shall not be allowed to make use of another person's land without in some way compensating that other person for that user." The same principle applies to the unlawful use of a way over another's land; even though no harm has been done to the land, a reasonable rent for such a way may be recovered as damages. ^ '5 . When part of the land has been wrongfully severed and Wrongful turned into a chattel, the value of that chattel is sometimes ghattelT*^ ° greater and sometimes less than the resulting diminution in the value of the land. To remove fixtures from a building wiU probably diminish the value of the building by a greater amount than the fixtures are worth after removal; but coal 5 (1896) 2 Oh. 538. 6 Ibid. p. 541. '' Ibid. p. 543. 8 Jegon v. Vivian (1871), L. R. 6 Oh. 742; Phillips v. Eomfray (1871), L. E. 6 Ch. 770. '.M)0' TEKSPASS TO LAND. [chap. V. Fraud. . No fraud. hewed out of a seam is worth more than it was when in situ. In such cases what is the measure of damages — the value of the chattels so taken away, or the resulting diminution in the value of the land ? The rule is that in all cases of wilful wrongdoing the plaintiff may elect to claim either the one or the other, and he will of course claim the amount which is the larger in the particular case. The reason is that he has two alternative causes of action — he may sue either for the injury to the land or for the conversion of the chattel severed and taken away; and the measure of the damages in these two cases is different. The chattel, although it has been severed and made into a chattel by the labour and expenditure of the defendant, nevertheless belongs to the plaintiff, who may recover its full value without making any allowance for the fact that part of that value has been given to it by the defendant. The value so recoverable is the value of the chattel at the moment when it first becomes a chattel; and if subsequently the defendant has by his labour or expenditure increased its value, the plaintiff has no claim to this addition. So that if coal is wrongfully extracted by the defendant from' the plaintiff's land, he is entitled to recover the value of the coal at the pit's mouth, less the cost of drawing and raising it, but without any deduction of the cost of hewing or pro- curing it. 9 This penal rule, by which the plaintiff recovers more than his actual loss, does not apply where there is no fraud or con- scious wrongdoing on the part of the defendant, and where he has been guilty merely of an honest mistake. In such a case the plaintiff cannot recover the value of the chattel, and is entitled to nothing more than his actual loss — viz., the diminution of the value of the land. So that if the plain- tiff's coal is severed and taken by a mistake as to title or boundaries, the measure of damages is the value of the coal in the seam, as if it had been bought in situ by the defen- 9 Martin v. Porter (1839), 5 M. & W. 351; Taylor v. Mostyn (1886), 33 Ch. D. 226; Wild v. Holt (1842), 9 M. & W. 672; Morgan v. Powell (1842), 3 Q. B. 278. SECT. 55] MEASURE OF DAMAGES. dant.i" Whether the penal measure of damages applies in the case of negligence as well as in that of fraud is perhaps to be regarded as unsettled. There are certain dicta in favour of its application to such a case.^^ ^" 1° Wood V. Morewood (184L), 3 Q. B. 440 u. ; Jegon v. Vivian (1871), L. R. 6 Ch. 742; Trotter v. Maclean. (1879), 13 Oh. D. 574; Livingstone v. Rawyards Coal Co. (1880), 5 A. C. 25; Peruvian Guano Co. V. Dreyfus Bros., (1892) A. 0. pp. 173-177. 11 See the oases cited in the preceaLng note. 12 These principles have been worked out by the Courts with ex- clusive reference to the wrongful extraction of coal, but there seems no reason to doubt that they ajre of general application to all forms of wrongful severance and conversion. See Peruvian Guano Co. v. Dreyfus Bros., (1892) A. O. p. 176, per Lord Macnaghten. 201 202 CHAPTER VI. DISPOSSESSION OF LAND. DispoH-^e^sioTi defined. The action of ejectment. § 56. The Action of Ejectment. 1 . The wrong of dispossession consists in the act of depriv- ing any person entitled thereto of the possession of land. This deprivation of possession may happen in two ways — namely, either by wrongfully taking possession of the land, or by wrongfuUy detaining the possession of it after the expiration of a lawful right of possession. In the first case, the wrong of dispossession is also a trespass; in the latter it is not. But so far as regards the essential nature of the wrong and the remedies available for it, there is no differ- ence between one form of dispossession and the other. ^ 2 . Any person wrongfully dispossessed of land may sue for the specific restitution of it in an action of ejectment. This action was in its origin merely a special variety of the action of trespass (whence its full title — trespass in ejectment), and was available only for leaseholders. It was the remedy by which a tenant for a term of years recovered the possession of the land either from his landlord or from any other person who had dispossessed him . So greatly, however, did it exceed in convenience and efficiency the remedies available for free- holders, that it came in course of time and by the aid of the most elaborate fictions to be used by freeholders also, super- seding all other remedies and becoming the universal means by which the possession of land could be recovered by any person having title to it. 1 In the days of Blaokstone it was necessary to distinguish between many different forms of dispossession, or ouster as it was called — ■ viz., abatement, intrusion, disseisin, discontinuance, deforcement, dispos- session of a leasehold, and so on. Blackstone, III. 167. All these dis- tinctions have become immaterial. SECT. 56] ACTION OF EJECTMKNT. '^^'^ The action when brought by a freeholder was instituted in the name of a fictitious plaintiff, usually called John Doe, who claimed possession of the land under a fictitious lease, which the real claimant (the plaintiff's lessor, as he was termed) was alleged to have granted to him. Hence the name of an action of ejectment under the old procedure: Doe 071 the demise of Robinson v. Johnson. The defendant was permitted to defend the action only on the terms of admitting the alleged lease and the dispossession of the plaintiff, so that the only question left in issue was the title of the plaintiff's lessor (that is to say, the real plaintiff) to the land in question. These fictions were all swept away by the Common Law Procedure Act, 1852; and by the Judi- cature Act, 1873, even the term ejectment is superseded by the term action for the possession of land. The older term is, however, conveniently retained in practice.^ 3. The rule in Asher v. Whitlock. In an action of eject- Possessory ment it is necessary for the plaintiff to prove his right to the , ' possession of the land, but it is sufficient if he proves a better WHtlock. right than the defendant's, even though it is inferior to that of some third person. For the purpose of this rule, as between two wrongful possessors, priority of possession gives the better right. The defendant in ejectment cannot defend himself by pleading, justertii — that is to say, the. existence of a title superior to that of the plaintiff and vested in some third person. In an action between A and B for the posses- sion of land, it is an irrelevant fact that the real owner of the land is neither A nor B, but C. When the real ownership is thus outstanding in some third person, the rights of the two claimants to it depend on priority of possession: Qui prior est tempore potior est jure — he who had the land first in fact has the best right to it in law . And so also with any one who claims through or under the prior possessor, as purchaser, lessee, devisee, heir at law, and so on. In other words, possession of land, even though 2 For an account of the history and nature of ejectment under the old practice, see Blackstone, III. 199-207; Select Essays in Anglo-American Legal History, III. pp. 611-645. 2*^4 DISPOSSESSION OF LAND. [CHAP. VI. wrongful, is a title of right as against all persons who cannot show a better title in themselves. Such possessory owner- ship — ownership based on possession — has, except as against persons able to show a better title in themselves, all the characteristics of legal ownership. The possessory owner may sell, lease, mortgage, or devise the land, and on his death intestate it will descend like a legal title; and any person so claiming under the possessory owner has as good a title as he had. This rule as to possessory title in actions of ejectment was definitely formulated in the case of Asher v. Whitloclc;^ and this decision, although long doubtful, may now be regarded as authoritative in consequence of the express recognition of the rule by Lord Macnaghten, delivering the judgment of the Privy Council in Perry v. ClissoldA " It cannot be dis- puted," he says,'' " that a person in possession of land in the assumed character of owner, and exercising peaceably the ordinary rights of ownership, has a perfectly good title against all the world but the rightful owner." We have already seen that such a possessory title is sufficient to enable a plaintiff to sue in tresp^Eiss,^ and we shall see later that the law is the same in the case of injuries to chattels. '^ Ejectment 4. Ejectment will lie at the suit of one joint tenant or tenant in common against the other where the act of the defendant amounts to the total exclusion or ouster of the plaintiff from the possession of the common property.^ 3 (1865), L. E,. 1 Q. B. 1. See also Allen v. Rivington (1671), 2 Wms. Saund. 110; Davison v. Omt (1857), 1 H. & N. 744. * (1907) A. C. 73. The cases of Doe d. Crisp v. Barber (1788), 2 T. R. 749; Doe d. CarUr v. Barnard (1849), 13 Q. B. 945; and Nagle v. Shea (1874), Jr. Hep. 8 O. L. 224, must be taJcen to be erroneous. According' to these cases possession is merely prima faoie evidence of a legal title, not a title in itself, even against an adniitted wrongdoer. '•> (1907) A. 0. p. 79. s Graham v. Peat (1801), 1 East, 244; supra, s. 53 (3). ' Armory v. Delamirie (1721), 1 Str. 504. 8 Murratj v. Hall (1849), 7 O. B. 441; Goodtitle v. Tombs (1770), 3 Wils. 118; Oo. Litt. 199b; Common Law Procedure Act, 1852, s. 189. This section is repealed by the Statute Law Revision and Oivil Procedure Act, 1883, s. 3, but the principle remains unaffected. As to trespass between co-owners, vide supra, s. 53 (5). a« between co-owuers SKCT. 57] ACTION FOR MESNE PROFITS. 205 § 57. The Action for Mesne Profits. 1. Any person wrongfully dispossessed of land has, in Recovery addition to a right of action in ejectment for the recovery of "* '«>'"'* the land, a right of action for damages in respect of all loss suflfered by him during the period of his dispossession. Sucli an action is termed an action for mesne profits. 2 . A claim for mesne profits is now usually joined with thu MesDe profits action pf ejectment, this joinder being permitted by the Rules '?*^'^^ j,, of the S.upreme Court, 0. 18, r. 2. Formerly, however, this ejectment. was not allowable (save by virtue of the Common Law Pro- cedure Act, 1852,1 in (;}^g single case of ejectment brought by a landlord against his tenant); and the practice was to sue first in ejectment, and after the recovery of the land by thib means to bring a subsequent action for mesne profits.^ 3 . The action for mesne profits was a particular form of Action of the action of trespass quare clausum fregit ; its proper title ^u*Xd™f'* was the action of trespass for mesne profits. Whether the doctrine of dispossession had or had not been effected by way of trespass, relation. ^ the claim for mesne profits was always in form a claim for damages for a continuing trespass upon the land.^ Such a claim was based upon and rendered possible by the doctrine of trespass by relation, which has been already explained in the chapter on trespass.* To remain wrongfully in possession of land is not, as we have already seen, in itself a trespass, even although the act of first entering upon the land was a trespass. But after the plaintiff so kept out of possession has re-entered and recovered his possession, he is remitted by a 1 15 ic 16 Vict. c. 76, s. 214. 2 Chitty's Pleading, I. p. 210, 7th ed. It is true, indeed, that in the action of ejectment under the old practice, damagea were recover- able as well as the land itself ; but these damages were in general merely nominal, being given only in respect of the trespass, if any, committed by the defendant in turning the plaintiff out of possession, and not in respect of the loss sustained by him through being kept out of possession. This had to be sued for separately in an action for mesne profits. 3 Chitty's Precedents in Pleading, 661: "That the defendant broke and entered messuages of the plaintiif situate, &c., and ejected the plaintiff from his possession and occupation thereof, and kept him bo ejected for a long time, and during that time took and received to the use of him the defendant all the issues and profits of the said tenements, &c." * Svpra, s. 53 (4). 206 DISPOSSESSION OF LAND. [cHAP. VI. legal fiction to his former status ab initio, and is deemed never to have been out of possession. It then becomes pos- sible for him, therefore, to sue in trespass for all acts that have been done upon the land during the period of his dis- possession — including the continued dispossession itself. Hence the action for mesne profits. " That is the ordinary doctrine on which actions for mesne profits are founded; you look to the date of the title, and after entry consider the party entitled to have been then in possession. "^ "The general doctrine is that where a man is disseised and re-enters, such re-entry refers to and has relation back to the time of his first entry; and he may bring an action of mesne profits, and re- cover them from the date of the prior entry. "^ Re-entry a 4. Since the action for mesne profits was thus founded precedent to '^^ ^^^ doctrine of trespass by relation, it followed that the action for action would not lie until after the plaintiff had re-entered and recovered the possession of the land. This re-entry might be by his own act, or it might be by way of judgment in ejectment and execution issued thereon. But one mode or the other was an essential condition precedent to the action. The only exception to this rule seems to have been the case where a re-entry had become impossible owing to the deter- mination of the plaintiff's title to the land. If, for example, a leaseholder was ejected and kept out of possession for the residue of the term, he could without entry recover damages for his term.''' Modern ^- This requirement of re-entry as a condition precedent practice. (-q an action for mesne profits is now abolished to this extent, that a claim for such profits may in all cases be joined with an action of ejectment; for this is expressly allowed in the case of landlord and tenant by the Common Law Procedure Act, 1852, s. 214, and impliedly in all other cases by the Rules of the Supreme Court, 0. 18, r. 2.^ This, however, leaves open the question whether an action for mesne profits will 5 RadcUfe v. Anderson (1858), B. B. & E. p. 824. « LitohfieU v. Ready (1850), 5 Ex. p. 944. See also Co. Lifct. 257a. 7 2 EoUe's Abridg. 550. 8 Dunlop V. Maoedo (1891), 8 T. L. R. 43. SECT. 67] ACTION FOR MESNE PROFITS. '-^C'' now lie without an action of ejectment and before the re- covery of the land. It seems clear that it will not, and that | the prohibition of such a proceeding was not a mere techni- i cality of the old procedure, but is a subsisting rule of sub- stantive law. To hold otherwise would enable a person dispossessed of land to sue in repeated actions de die in diem for damages for being kept out of possession, just as he might sue for a continuing trespass or nuisance; whereas his true remedy is to recover the land itself, together with damages once for all in respect of the completed period of his dispossession. The law, then, seems to be as follows: A person dis- possessed of land may — {a) Sue in ejectment and for mesne profits in one action; (6) Sue for mesne profits, if he has already got back into possession either by means of an action of eject- ment or otherwise; (c) Sue for mesne profits without ejectment and without recovery of possession, ^f his interest in the land has already come to an, end. 6. In an action for mesne profits (notwithstanding the Measure of name of the action) the plaintiff is not limited to a claim for ^™*^®^- the profits which the defendant has received from the land, or those which he himself has lost. He recovers all the loss which has resulted from the dispossession. ^ 7. When the land has during the period of the plaintiff's Claims dispossession been in the possession of two or more successive gu^eessive wrongdoers, an action for mesne profits wiU lie against each occupiers, of them in respect of the period of his own possession. " For by the re-entry of the disseisee he is remitted to his first pos- session, and as if he had never been out of possession; and then all who occupied in the meantime, by what title soever thev come in, shall answer unto him for their time."io A 9 Goodtitle v. Tombs (1770), 3 Wils. p. 121 ; Dunn v. Large (1783), 3 Doug. 335. 10 Baloomb v. Rawlyns, Oro. Elia. 540. See, however, Liford's case, 11 Eep. 51a. 208 DISPOSSESSION OF LAND. [CHAP. VI. meuts. lessor is responsible in an action for mesne profits for the period of his tenant's possession as well as for his own.^^ Right to set 8 . It seems not to have been decided whether a defendant improve- i^i an action for mesne profits can set off the value of im- provements made by him to the property in good faith during the period of his possession. ^^ SinCe, however, the plaintiff's claim is for the loss suffered by him in consequence of the dispossession, it would seem clear on principle that he must take into account the value to himself of the improvements made by the defendant. If the defendant has pulled down an old house and built a new one, it can scarcely be supposed that the plaintiff can recover both the new house in an action of ejectment and the value of the old one in an action for mesne profits. 11 Doe V. Harlow (1840), 12 A. & E. 40. A tenant who sublets ia liable for mesne profits to his lessor if the sub-tenant holds over after the termination of the original lease. Henderson v. Squire (1869), L. R. 4 Q. B. 170. 12 See Mayne on Damages, p. 527, 8th ed. Such a set-off is aUowed in America. See Sidgwiok on Damages, §§ 915-917, 9th ed. 209 CHAPTER VII. NUISANCE. § 58. The Nature of Nuisance. 1. It is usual to divide nuisances into two kinds, distin- Public guished as public and private. A private nuisance is a kind nuisances, of civil wrong, the nature of which we are about to consider . A public or common nuisance is a species of criminal offence, which has been defined as "an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty's subjects."^ Examples of a public nuisance are keeping a common gaming-house or a disorderly inn, publicly selling unwhole- some provisions, obstructing a highway, or making it dangerous for traffic. Public and private nuisances are not in reality two species of the same genus at all. There is no generic conception which includes the crime of keeping a common gaming-house and the tort of allowing one's trees to overhang the land of a neighbour. Wc are here concerned solely with private nuisances. Public nuisances do not fall within the law of torts at all, except in so far as such a nuisance may in the particular case constitute some form of tort also. Thus, the obstruction of a highway is a public nuisance; but if it causes any special and peculiar damage to an individual, it is also a tort action- able at his suit. 2 2. Private nuisances are themselves of two kinds — ^viz., Two kinds (a) any wrongful disturbance of an easement or other servi- °^ private nuisances. 1 Steplien's Digest of Criminal Law, art. 197, 6tli od. 2 Infra, s. 91. u 210 NUISANCE. [chap. VII. tude appurtenant to land, and (&) the act of wrongfully causing or allowing the escape of deleterious things into another person's land {e.g., smoke, smells, fumes, noise, elec- tricity, water, or noxious vegetation). Here again it does not seem possible to include these two kinds of nuisances within any single definition. They are not in reality two species of the same generic injury, but two different injuries which happen to be called by the same name. In the present chapter we are concerned solely with the second of these kinds, and to it alone we shall apply and confine the term nuisance . The disturbance of servitudes will be treated in a later chapter, and will be spoken of under that designation and not under that of "nuisance. ^ Nuisance 3. Tl^e wrong of nuisance, as distinguished from the dis- turbance of servitudes, consists in the act of the defendant in causing or allowing without lawful justification (but not so as to amount to a trespass) the escape of any deleterious thing from his land or from elsewhere into land in the possession of the plaintiff — for example, water, smoke, smell, fumes, gas, noise, heat, vibrations, electricity, disease-germs, animals, and vegetation.* 3 The explanation of this threefold meaning and application of the term nuisance is that in its origin the term was merely a generic expres- sion meaning wrongful harm, and that although it has now lost this wide signification it has failed to attain instead any single specific application. The term is derived, through the French, from the late Latin nocentia : see Tertull. Apol. cap. 40 — Beus innocentiae magister nocentitie judex. Chaucer used it in this generic sense: ''Helpe me for to weye ageyne the feende. . . . Keep© us from his nusance." (Mother of God, I. 21.) Nuisance appears in the old Latin pleadings as nocumentum — i.e., harm. The terms trespass and tort, though simi- larly generic in their original use, have been more successful in the process of specification. * The following cases illustrate the different kinds of nuisance: — Smell: Rapier v. London Tramways Co., (1893) 2 Ch. 588 (stables). Noise: Christie v. Bavey, (1893) 1 Ch. 316 (music to annoyance of neighbours) ; Broder v. 8aillard (1876), 2 Ch. D. 692 (stable ad- joining dwelling-house) ; Ball v. Ray (1873), L. R. 8 Ch. 467 (the same); Sturges v. Bridgman (1879), 11 Ch. D. 852 (machinery); Polsue ^- Alfieri, Ltd. v. Rushmer, (1907) A. C. 121 (machinery). Disease Geems: Metropolitan Asylums District Board y. Sill (1882), 47 L. T. 29; Att.-ffen. v. Corporation of Nottingham, (1904) 1 Ch. 673. Heat: Reinhardt v. Mentasti (1889), 42 Ch. D. 685 (cooking-stove a nuisance to adjoining wine cellar); Robinson v. Kilvert (1889), 41 Ch. D. 88. Fumes: St. Belens Smelting Co. v. Tipping (1865), 11 H. L. C. 642 SECT. 58] THE NATURE OF NUISANCE. 211 4. Nuisance is commonly a^oDntinuingjvrong — that is to >fui8auoe say, it commonly consists in the establishment or mainten- contimdn^^ ance of some state of things which continuously or repeatedly ™Jiiry causes the escape of noxious things on to the plaintiff's land {e-g., a stream of foul water, or the constant noise or smell of a factory). An escape of something on a single occeision, however harmful and wrongful {e.g., the escape of water from the bursting- of a reservoir), would not in common speech be termed a nuisance. This distinction, however, is not one which admits or requires any legal recognition for the purposes of the law of nuisance. All wrongful escapes of deleterious things, whether continuous, intermittent, or isolated, are equally to be classed as nuisances in law; for thej axe all governed by the same principles. ^ (fximes of copper-smelting injurious to trees and crops) ; Crump V. Lambert (18<>7), L. R. 3 Eq. 409 (effluvia of factory chimney) ; Salvin V. Xorth Brancepeth Coal Co. (1874), L. R. 9 Ch. 705 (fumes from coke-ovens injurious to trees and crops). Water: Broder v. Saillard (1876), 2 Ch. D. 692 (moisture from arti- ficial mound of earth on defendant's land injurious to adjoining house); Burdman v. N. B. Ely. Co. (1878), 3 C. P. D. 16S; Snow V. Whitehead (1B84), 27 Ch. D. 588. Electricity: Eastern f South African Telegraph Co. v. Cape Town Tramways Companies, (1902) A. C. 381 (escape of electricity from electric tramways preventing working of electric telegraph) ; National Telephone Co. v. Baker, (1893) 2 Ch. 186. Pollution of Water: Ballard v. Tomlinson (1885), 29 Ch. D. 115 (plaintiff's well polluted with defendant's sewage); Crossley v. Lightowler (1867), 2 Ch. 478 (stream polluted by dye-works) ; Harrington {JSarl) v. Corporation of Derby, (1905) 1 Ch. 205 (river polluted with sewage). Vibrations: Shelf er v. City of London Electric Lighting Co., (1895) 1 Ch. 287 (steam-engines causing discomfort to residents in ad- joining house and structural damage to house). Vegetation: Smith v. Giddy, (1904) 2 K. B. 448 (trees spreading branches beyond boundary) ; Crowhurst v. Burial Board of Amer- sham (1878), 4 Ex. D. 5 (the same). 5 The difference in question is not one that admits of being so de- fined as to serve as the basis of any leg'al distinction, for it is in reality nothing more than an indeterminable difference in degree. If we were to define a nuisance as the continuing escape of deleterious things, how long would this continuance have to last in order to constitute a nuisance rather than some other kind of wrong ? The stream of water that escapes from a bursting reservoir is continuing for a certain time, and it is governed by the same rules of liability, however long or short a time it lasts. In Midv>ood v. Mayor of Manchester, (1905) 2 K. B. 597, damage done to the plaintiff's premises by an explosion of gas in the adjoining highway was held to be Caused by a nuisance within the meaning of that term as used in an Act of Parliament. 14(2) 212 NUISANCE. [chap. VII. Nuisance commonly on defendant's land. Who can sue for a nuisance. 5. A nuisance is commonly created by acts done on land in the occupation of the defendant, adjoining or in the neigh- bourhood of that of the plaintiff; and the law of nuisance is consequently for the most part an application of the maxim Sic utere tuo ut alienum non laedas. It marks the limit set to the use of land, in order to prevent harm to the land of others. Yet this is not invariably the case. A nuisance may be created not on the land of the defendant, but elsewhere — e.g., on a highway adjoining the plaintiff's land,^ or in a navigable river, or in some place of public resort . And even when it is on adjoining private land, the defendant need not be the owner or occupier of that land; he may, for example, be a contractor executing works there which cause a nuisance to adjoining property. '^ 6. Nuisance, like trespass,^ is actionable only at the suit of him who is inj[)ossession of the land injuriously affected by it. An owner who is not in possesion cannot sue for a nuisance as such and per se ; as in the case of trespass, so here, he has no cause of action unless he can prove a permanent injury to his proprietary right. ^ Moreover, a person who has merely the use of land, without either the possession of it or any pro- prietary interest in it, cannot sue for a nuisance, even though he has suffered direct personal or pecuniary damage; the duty of preventing a nuisance is a duty owed only to those who possess or own the land affected, not a duty owed to all the world. Thus, in Cattle v. Stockton Waterworks Co.^^ the plaintiff, a contractor who had undertaken to construct a tunnel under another person's land, was held to have no cause of action against the defendant company for allowing an escape of water from its mains into that land, although in consequence of that escape he had suffered heavy pecuniary loss in the completion of his contract. So also in Malone v. Laskey^^ the defendants created a nuisance to 6 Benjamin v. Storr (1874), L. R. 9 C. P. 400. 7 Thompson v. Gibson (1841), 7 M. & W. 456. 8 Supra, a. 53 (1). Presumably, however, the doctrine of trespass by relation Isupra, s. 53 (4)] extends by analogy to the wrong of nuisance. ^ See, for a fuller discussion of the matter, s. 95 (Injuries to rever- sionary interests), infra. w (1875), L. R. 10 Q. B. 453. " (1907) 2 K. B. 141. SECT. 58] THE NATURE OP NUISANCE. 213 adjoining premises by the vibrations caused by the use of powerful machinery; those vibrations loosened the supports of a water-cistern on the premises affected, and the cistern fell upon the wife of the occupier and caused personal injuries; she was held, however, to have no cause of action, because she had neither a possessory nor a proprietary interest in the premises. 7. The true relation between nuisance and trespass would Nuisance seem to be that these wrongs are mutually exclusive, and not dStinffmslied. partially coincident. Nothing is to be rightly classed as a nuisance if it is reaUy a trespass. The chief importance of the distinction is that trespass is actionable per se, while nuisance is actionable only on proof of actual damage. ^^ The test of the distinction is whether under the old prac- tice a writ of trespa^ would have been available, or only a writ of case; and this, as we have seen in a former chapter, depends on whether the injury is or is not a direct act of physical interference with the plaintiff's land. Directly to cause a material and tangible object to enter another person's land is a trespass and no nuisance; but where the thing is not material ,aiid tangible (such as electricity, noise, smeU, or smoke), or where, though material and tangible, its entry is not the direct act of the defendant, but merely consequential on his act, the injury is not a trespass, but merely a nuisance actionable on proof of actual damage. To plant a tree in another man's land is a trespass; but to allow it to spread its roots and branches across the boundary is a nuisance and not a trespass. 13 To throw water upon another's premises is a trespass; to allow or cause water to flow there by natural gravitation is, if actionable at all, a nuisance and no tres- pass, i^i^^" 12 Supra, s. 52 (3); infra, s. 59 (1). 13 Lemmon v. Webb, (1894) 3 Oh. p. 11; Smith v. Gfiddy, (1904) 2 K. B. 448. 1^ Reynolds v. Clarke (1725), 2 Ld. Kaym. 1399. 15 As to the anomalous case of the so-called trespasses of cattle, see supra, s. 52 (6), n. 13. 18 It is true, indeed, that in the old practice the remedies of ties- pass and case were ia certain instances concurrent, the plaintiff having' an option to sue in either form of action; and in this sense and to tbis 214 NUISANCE. [chap. VII. No nuisance without damage. Kinds of sufficient. § 59. Damage caused by Nuisance. 1 . No action will lie for a nuisance unless it is the cause of actual damage to the plaintiff. No man is bound to pre- vent the escape from his land of things which do no harm. Thus, no action will lie against him who allows the branches of his trees to overhang his neighbour's land, or their roots to grow into his neighbour's soil, unless actual damage is thereby caused. ^ The adjoining occupier must protect him- seK against such an invasion by cutting the branches or roots which project beyond the boundary; and this he may do, even though they are doing him no harm.^ Similarly, it is to be presumed that no action will lie against me because my dog or my cat goes upon the plaintiff's land, unless they there cause some mischief or inconvenience. ^ A trespass, on the contrary, is actionable per se. 2. The damage that is sufficient to found an action of nuisance may consist either in (1) some physical injury to the premises occupied by the plaintiff, or to the property of the plaintiff situated thereon, or (2) some interference with the beneficial use of these premises. Any substantial inter- ference with the comfort or convenience of persons occupying or using the premises is a sufficient interference with the beneficial use of them within the meaning of this rule. extent it may be said that trespass and nuisance were coincident and overlapping species of injuries. As already indicated, however {supra, a. 51 (3), n. 7), these oases of concurrence between trespass and case were] anomalous and illogical. They may, and indeed must, be disregarded in any attempt at logical classification and definition in modern law. 1 Smith V. Giddt/, (1904) 2 K. B. 448. 2 Z-emmott v. Webb, (1895) A. C. 1. s Mason v. Ke-eling, 12 Mod. p. 335, per Holt, O. J.: "If my dog go into another man's soil, no action will lie." Brown v. G-Ues (1823), 1 O. & P. 118; Mitten v. Faudrey, Pop. 161;, Read v. Edwards (1864), 17 0. B. (N. S.) p. 260. Inasmuch, however, as cattle-trespass was by the old praotice actionable by way of a writ of trespass and not by way of an action on the case, it may be contended that the general rule of the law of trespass is applicable, and that damage is not requisite for a cause of action. Even if this is so, however, the rule can extend only to cattle and those other animals in which a right of absolute property could exist at common law; for it was only in the case of such animail that a writ of trespass was available. The straying of a dog; for example, was not actionable in trespass, but only in case in respect of consequential damage. SECT. 59 J DAMAGE CAUSED BY NUISANCE. 215 o . When an action of nuisance is based on mere discomfort Nuisance . . causing or inconvenience, this discomfort or inconvenience must be discomfort, substantial — that is to say, it must not be merely trifling or fanciful or such as an average and reasonable man is content to submit to. Sensible men living with their fellows are content to bear with patience many minor inconveniences, which do not substantially interfere with the ordinary comfort of human existence; and by law all men, whether sensible or not, are bound to submit to annoyances of this kind: De minimis non curat lex. The rule is well expressed by Knight Bruce, V.-C, in Walter v. Selfe:^ "Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an in- convenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people ? "5 4. The standard of comfortable living which is thus to The standard be taken as the test of a nuisance is not a single universal standard for all times and places, but a variable standard differing in different localities. The question in every case is not whether the individual plaintiff suffers what he regards as substantial discomfort or inconvenience, but whether the average man who resides in that locality would take the same -^iew of the matter. The law of nuisance does not guarantee for any man a higher immunity from discomfort or inconvenience than that which prevails generally in the locality in which he lives. He who dislikes the noise of traffic must not set up his abode in the heart of a great city. Ho who loves peace and quiet must mot live in a locality devoted to the business of making boilers or steamships. Thus, in Sturges v. Bridgman,^ Thesiger, L.J., says: " Whether anything is a nuisance or not is a question to be * (1851), 4 De G. & Sm. p. 322. 5 For instances in which the discomfort alleg-ed was too trivial to amount to nuisance, see Christie v. Bavey, (1893) 1 Ch. 316; Cfaunt v. Fvnnev (1872), L. R. 8 Oh. 8; Heath v. Mayor of Brighton (1908), 24 T; L. B. 414. « (1879), 11 Oh. D. p. 865. 216 NUISANCE. [chap. VII. Ttrnporary nuisance. Malicious nuisance. determined not merely by an abstract consideration of the thing itself, but in reference to its circumstances : what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a par- ticular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong." In Polsue d Al fieri v. Rushmer'^ this doctrine of the local standard of comfort was definitely accepted by the Court of Appeal and the House of Lords. "The standard of comfort," says Cozens-Hardy, L. J., "differs according to the situation of the property and the class of people who inhabit it. . . . But whatever the standard of comfort in a particular district may be, I think the addition of a fresh noise caused by the defendant's works may bo so substantial as to create a legal nuisance."^ ^ 5. The temporary nature of the inconvenience or discom- fort is a fact to be taken into account in judging whether it is suificiently substantial to amount to a nuisance. i" But if it is otherwise substantial, it is none the less a nuisance because it is merely temporary. ^i 6 . It seems that if discomfort or inconvenience is infiicted intentionally and wantonly without any reasonable cause, the requirement of substantiality does not exist. The duty to submit to the minor inconveniences of life is imposed only for the sake of the reasonable activities of other persons, and does not justify wanton or malicious attacks upon one's com- fort. On this principle North, J., in Christie v. Davey,^^ "! (1906) 1 Oh. 234; (1907) A. C. 121. 8 (1906) 1 Oh. at p. 250. 9 See ako St. Selens Smelting Co. v. Tipping (1865), 11 H. L. C, per Lord Westbury at p. 660, and per Lord Oranworth at p. 653. Also Colls V. Home and Colonial Stores, (1904) A. C. at p. 185, per Lord Halsbury. The lowering of the standard of comfort in particular localities does not depend on the existence of prescriptive rights to create nuisances there. Rushmer v. Polsue ^ Alfieri, (1906) 1 Oh. at p. 251, per Cozens-Hardy, L. J. 10 Harrison v. Southwarh Water Co., (1891) 2 Oh. 409. 11 Fritz V. Hobson (1880), 14 Oh. D. p. 556; Bamiord v. Turnley (1860), 3 B. & S. p. 84. 12 (1893)' 1 Oh. 316. SECT. 59 J DAMAGE CAUSED BY NUISANCE. 217 granted an injunction against piano-playing and other noises which were maliciously intended to cause discomfort to the occupier of the adjoining house, although, had they been made for a legitimate purpose, the discomfort would not have been sufficiently substantial to be actionable. So also in Harrison v. Souihwark Water CoM Vaughan Williams, L. J., says: "The law in judging what constitutes a nui- sance does take into consideration both the object and duration of that which is said to constitute the nuisance." 7. The damage complained of in an action of nuisance Prospective must be actual and not merely prospective. If the defen- sufficient?" dant's operations do not now cause harm, discomfort, or in- convenience, they do not constitute a nuisance, even though they would certainly produce such effects were the plaintiff to have occasion in the future to use his land in some other way. Thus, a noisy or offensive factory is not a nuisance actionable at the suit of the owner of an unoccupied piece of building land adjoining it. It does not become a nuisance until the plaintiff actually builds a dwelling-house or other building on his land and the prospective discomfort becomes a present reality.^* 8 . No action wiU lie for a nuisance in respect of damage Damage due which, even though substantial, is due solely to the fact that geifBitiVra^ess. the plaintiff is abnormally sensitive to deleterious influences, or uses his land for some purpose which requires exceptional freedom from any such influences. Every person is entitled to do on his own land anything that does not interfere with other persons in the ordinary enjoyment of life or the ordinary ■ modes of using property. In other words, his neighbours have a right to the ordinary conditions of comfortable existence, and to the ordinary conditions of the beneficial use of property; but they have a right to nothing more. Extra- ordinary and special requirements are not protected by the law of nuisance. If a man is morbidly sensitive to noise, so that he is prevented from working or sleeping by noises which would not annoy other people, this is indeed substan- 13 (1891) 2 Oh. p. 414. 14 Sturges v. Bridgman (1879), 11 Ch. D. 852. 218 NUISANCE. [chap. VII. tial damage inflicted upon him, but is not actionable as a [ nuisance. Similarly, the law of nuisance does not guarantee to a sick man any further exemption from the noise of traffic in the street than it guarantees to him who is well. So if I carry on a manufacture or other business which is so sensitive to adverse influences that it suffers damag-e from smoke, fumes, vibrations, or heat, which would in no way interfere with the ordinary occupation of land, the law of nuisance will not confer upon me any such special and extra- ordinary protection. I must acquire immunity from damage of this sort by special contract with my neighbours. Thus, in Eastern d South African Telegrafph Co. y. Cape Toivn Tramways Co.^^ an action was brought by the telegraph company for interference with its telegraphic operations through induced currents caused by the working of the defen- dants' electric cars. The Privy Council held the defendants not liable on the ground that such a cause would do no harm to the ordinary occupation of land, and that the dama'ge done was solely due to the exceptionally delicate nature of the operations conducted by the plaintiffs. "A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure. "^^ The same principle was acted on by the Court of Appeal in Robinson v. KilvertP where the nuisance complained of was one of heat causing damage to the exceptionally delicate manufacture of the plaintiff. In its application to those nuisances which consist in inter- ference with health or comfort this rule is easy of applica- tion; the requirements of the average man form a deflnite standard and test of the rights of the plaintiffs. The appli- cation of the same rule to nuisances of other kinds, however, is likely to prove a matter of some difficulty. By what test are we to distinguish between ordinary and exceptional requirements for the beneflcial occupation of land ? 15 (1902) A. C. 381. 16 Ibid. p. 393. " (1889), 41 Ch. D. 88. Cf., however, Cooke v. Forbes (1867), L. E. 5 Eq. 166. SECI\ 60] IlSrEFFECTUAL DEFENCES. 219 § 60. Ineffectual Defences. 1 . It is now settled that it is no defence that the plaintiff Coming to , . , „ . . - _ . the nuisance, nimseli came to the nuisance, it was, indeed, at one time supposed that no one could complain of a nuisance if with f uU knowledge of its existence he chose to become the owner or occupier of the land affected by it: as if he knowingly took a house close to a noisy factory. This, however, is not the law. The maxim Volenti non fit injuria is capable of no such application. 1 2. It is no defence that the nuisance, although injurious to Public the individual plaintiff, is beneficial to the public at large. A nuisance may be the inevitable result of some manufacture or other operation that is of undoubted public benefit — a benefit that far outweighs the loss infiicted upon the in- dividual — but it is an actionable nuisance none the less. No consideration of public utility can be suffered to deprive an individual of his legal rights without compensation. ^ 3. Nor is it any defence that the place from which the Suitable nuisance proceeds is a suitable one for the purpose of carrying ^ *'^^' on the operation complained of, and that no other place is available in which less mischief would result. If no place can be found where such a business will not cause a nuisance, then it cannot be carried on at aU, except with the agreftment of adjoining proprietors or the sanction of an Act of Parlia- ment.3 This rule, however, is to be read in the light of the principle already considered by us* to the effect that the test of nuisance is the actual local standard of comfort, and not an ideal and general standard . 4. In the case of continuing nuisances it is no defence that Care and aU possible care and skill are being used to prevent the ®^^' operation complained of from amounting to a nuisance. " At 1 Elliotson V. Feetham (1835), 2 Bing. N. 0. 134; Bliss v. Hall (1838), 4 Bing. N. C. 183. 2 See, for example, Shelfer v. City of London Eleotrio Lighting Co., (1895) 1 Ch. p. 316; and sv/pra, o. 38 (11). 3 St. Helens Smelting Co. v. Tipping (1865), 11 H. L. C. 642; Bamford v. Turnley (1860), 3 B. & S. 62, overruling Hole v. Barlow (1858), 4 C. B. (N. S.) 334. * Supra, s. 59 (4). 220 NUISANCE. [chap. VII. Contributory acts of others. Reasonable use of property. common law," says Lindley, L. J.,^ "if I am sued for a nuisance and the nuisance is proved, it is no defence on my part to say and to prove that I have taken all reasonable care to prevent it." If an operation cannot by any care and skill be prevented from causing a nuisance, it cannot lawfully be undertaken at all, except with the consent of those injured by it or the authority of a statute. Thus, it is an actiona,ble nuisance at common law to run a locomotive engine which cannot by any skill in construction or care in management be prevented from discharging sparks; and in the absence of statutory authority he who does so is liable for the conse- quences, however careful he may have been to prevent them.^ It will be understood that these remarks apply solely to nuisances caused by some continuing operation which has been shown by experience to be a necessary source of mis- chief. How far damage done accidentally, in the course of an operation which is not thus known to be a necessary source of danger, is any ground of liability in the absence of negligence is a question which will be considered later. 5 . It is no defence that the act of the defendant would not amount to a nuisance unless other persons acting indepen- dently of him did the same thing at the same time.' Thus, if twenty factories pour out smoke and fumes into the atmos- phere, the contribution of each may be so small and its detrimental efiect so inappreciable that it does not per se amount to a nuisance. Yet the aggregate quantity may be the cause of serious harm or discomfort. In such a case each of the contributors is liable for a nuisance and for his own proportion of the total damage. 6. He who causes a nuisance cannot avail himself of the defence that he is merely making a reasonable use of his own property. No use of property is reasonable which causes sub- 5 Rapier v. London Tramways Co., (1893) 2 Ch. p. 599. 6 Jones V. Festiniog My. Go. (1868), L. R. 3 Q. B. 733; Powell v. Fall (1880), 5 Q. B. D. 597; Chtinter v. James (1908), 24 T. L. R. 868. ' Lambton v. Mellish, (1894) 3 Oh. 163. Cf. Sadler v. Gt. W. My. Co., (1896) A. C. 450. There ia no joint liability in such oases; each is severally liable for his own act. SECT. 61] THE RULE IN RYLANDS V. FLETCHER. 221 staiitial discomfort to other persons, or is a source of damage to their property.* § 61. The Rule in Rylands v. Fletcher. 1. The rule known as that in Hylands v. Fletcher^ is one Liability for of the most important cases of absolute liability recognised by ^l^lerous our law — one of the chief instances in which a man acts at his things is peril and is responsible for accidental harm, independently of tlie existence of either wrongful intent or negligence. The rule may be formulated thus: — The occupier of land who brings or keeps upon it anything likely to do damage if it escapes is bound at his peril to pre- vent its escape, and is liable for all the natural and probable consequences of its escape, even if he has been guilty of no negligence. The occupier of land is liable not merely for causincf the escape of deleterious things from his land into that of his neighbours, but also for failing to prevent such an escape. He owes not merely a negative duty to refrain from active injury, but also a positive duty to guard and protect his neighbours, lest they suffer harm by reason of dangers present on his land. Moreover, this duty is an absolute one, liability for the breach of it being independent of any negligence on the part of the defendant or his servants. Subject to the exceptions hereinafter mentioned, he who keeps on his land things capable of being a source of mischief does so suo periculo, and must pay for any nuisance created by them, however careful he may have been to prevent it. He is the insurer of his neighbours against all harm so resulting. 2. In Rylands v. Fletcher^ the defendants constructed a Rylands u. reservoir upon their land, and upon the site chosen for this 8 Bamford v. Turnley (1860), 3 B. & S. 66; Reinhardt v. Mentasti (1889), 42 Gt. D. 685; Att.-Gen. v. Cole, (1901) 1 Ch. 205; Broder v. Saaiard (1876), 2 Ch. D. p. 701, per Jessd, M. R. ; Scott v. Firth (1865), 4 P. & F. p. 351, per Blackburn, J. See, however, the observa- tions of Buckley, J., in Sanders-Clark v. Grosvenor Mansions Co., (1900) 2 Ch 373 1 (1866), L. R. 1 Ex, 265; (1868), L. R. 3 H. L. 330. 2 Ibid. 222 NUISANCE. [chap. VII. purpose there was a disused and filled-up shaft of an old coal- mine, the passages of which communicated with the adjoining mine of the plaintiff. Through the negligence of the con- tractors or engineers by whom the work was done (and who were not the servants of the defendants) this fact was not discovered, and the danger caused by it was not guarded against. When the reservoir was filled, the water escaped down the shaft and thence into the plaintiff's mine, which it flooded. It was held by the Exchequer Chamber and by the House of Lords that the defendants were liable, although guilty of no negligence either by themselves or by their servants. Lord Cranworth says:^ " 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 causes damage, he is responsible, how- ever careful he may have been, and whatever precautions he may have taken to prevent the damage." So in the judgment of the Exchequer Chamber it is said:* " The question of law therefore arises, What is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless while it remains there, will naturally do mischief if it escape out of his land ? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neigh- bours; but the question arises whether the duty which the law casts upon him under such circumstances is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions in order to keep' it in, but no more. . . . We think that the true rule of law is that the person who for his own purposes brings on his lands and coUects 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." 3 L. R. 3 H. L. p. 340. * L. R. 1 Ex. p. 278. SECT. 6l] THE RULE IN RYLANDS V. FLETCHER. 223 3. Similarly, in Black v. Christchurch Finance Co.^ the 5i^°'^/; , ■- . . . Cbristohurch defendants were the occupiers of certain land in New Zealand, Finance Co. which they desired to clear of scrub by burning'. For this work they engaged an independent contractor, and gave him specific instructions that he was not to burn the scrub during the hot and dry month of February. In breach of his instructions he wrongfully and negligently burned it in that month, and a high wind carried the fire into the adjoining land of the plaintiff, where it did extensive damage. The defendants, though free from all personal negligence, were held liable by the Privy Council. 4. In Humphries v. Cousins^ the plaintiff and defendant Humphries .. . ... . Cousins, were the occupiers of two adjoinmg houses. An old dram which commenced on the defendant's premises, and thence passed under and received the drainage of several other houses, turned back again under the defendant's house, and thence under the cellar of the plaintiff's house. That part of the return drain which was under the defendant's premises became decayed, and the sewage escaped into the plaintiff's cellar. The defendant was unaware of the existence of the return drain, and it was held nevertheless by the Court of Appeal that he was responsible for the damage thus suffered by the plaintiff. 5. The same rule of absolute liability applies to damage Trespass of done by the trespasses of cattle and other animals. "The •case," says Blackburn, J., delivering the judgment of the Court of Exchequer Chamber in Fletcher v. Uylands,'' " that has most commonly occurred, and which is most frequently to be found in the books, is as to the obligation of the owner ■of cattle which he has brought on his land to prevent their escaping and doing mischief. The law as to them seems to be perfectly settled from early times; the owner must keep them in at his peril, or he will be answerable for the natural consequences of their escape." So in Cox v. Bur- bidge^ it is said: "Whether or not the escape of the animal 5 (1894) A. 0. 48. « (1877), 2 O. P. D. 239. '' (1866), L. R. 1 Ex. p. 280. » (1863), 13 C. B. (N. S.) p. 438. 224 NUISANCE. [chap. VII. Liability on occupier only. Remoteness of damag'e. is due to my negligence is altogether immaterial." So in Ellis V. Loftus Iron Co.:^ "It has been held again and again that there is a duty on a man to keep his cattle in, and if they get on another's land it is a trespass; and that is irrespective of any question of negligence, whether great or small. "^'^ 6. It will be noticed that the rule in Itylomds v. Fletcher is applicable only to the occivpier of the land from which the nuisance proceeds . How far, if at all, liability for nuisance is imposed by law on the owners of land, or on any other persons than the occupier, is a question which must be here postponed and will be considered at a later stage. ^^ 7. Although the rule in Rylands v. Fletcher makes the defendant liable for an escape apart from any negligence, it does not make him liable for all the consequences of the 9 (1874), L. E. 10 C. P. p. 12. 10 Hiatorieally the rule in Rylands v. Fletcher originated as a gene- ralisation of this old rule of the common law as to cattle-trespass. We have seen in a former chapter that an action of trespass was under the old practice available for damage done by straying cattle, although logically the remedy ought to have been an action on the case, since there is no such direct and forcible injury as is necessary to constitute a true trespass (supra, s. 52 (6), n. 13). Now, the original rule as to> actions of trespass (as opposed to actions on the case) was that liability was absolute and independent of negligence. This rule has in i-l^ general form been definitely departed from by our modem law. Speaking generally, there is now no difference in respect of the require- ment of mens rea between a cause of action in trespass and a cause of action in case. Inevitable accident is commonly a good defence in both instances. Singularly enough, however, the old rule of absolute liability in trespass, while abandoned in general, has been preserved in the case of trespass by animals — a, result finally establish^ by the decision of the House of Lords in Rylands v. 'Fletcher. This decision not only recognised the old law as to cattle-trespass, but extended it to cover the escape from the land of one man to the land of another of any dangerous thing, animate or inanimate. The escape, however, of inanimate objects was at no time actionable in trespass ; it was a nuisance for which the remedy was an action on the case. Even in respect of animals, there seems good reason to believe that the writ of trespass, with its accompanying absolute liability, was applicable only to cattle and to those other animals in which at common law a right of property could exist, and did not extend to those animals which, though kept by the defendant, were not his in law. As to this distinction, see Cox v. Burbidge, 13 C. B. (N. S.) p. 438, per- Williams, J.; Read v. Edwards, 17 C. B. (N. S.), per WUles, J., at p. 260; Mason v. Keeling, 12 Mod. p. 335, per Holt, O. J.: "If any beast in which I have a valuable property do damage in another's soil in treading his grass, trespass will lie for it; but if my dog go into, another man's soil, no action will lie." 11 Infra, ss. 71, 72. SECT. 61] THE RULE IN RYLANDS V. FLETCHER. 225 escape. His liability is limited by the ordinary rule as to remoteness of damage — that is to say, he is responsible only for the sort of harm which the thing kept by him is likely to do if it does escape. He keeps it at his peril only so far as the natural and probable consequences of its escape are concerned. 1- S. There are several dicta to the effect that the rule in Alleged Bijlands \ Fletcher does not applj- to what is termed the between natural user of land, but applies only when the defendant has J^ati^™! and 're J non -natural put his land to some non-natural or extraordinary p'orpose. use of land. There is no decided case, however, which rests upon the accept- ance of any such distinction, and it has nothing in principle to recommend it. What is the natural use of land ? Is it natural to build a house on it, or to light a fire ? Almost all use of land involves some alteration of its natural condition and it seems impossible to say how far this alteration may go before the use of the land becomes non-natural or extra- ordinary, so as to bring the rule in Rylands v. Fletcher into operation. Moreover, if there is one kind of use more natural than another it is the keeping of cattle; yet cattle- trespass is a typical instance of the application of this rule of strict responsibility, and is indeed the historical source of the general principle. ^^ '2 Fletcher v. Kijlands, L. R. 1 Ex. p. 279. Where the instrument of mischief is an animal, the liability of the defendant is further limited , by the special rule as to proof of scienter, which will be explained later when we come to deal more particularly with responsibility for animals (infra, s. 127). 13 j"(j]. examples of the dicta here considered, see Blake v. Woolf, (1898) 2 Q. B. at p. 428; Gill v. Sdouin (1894), 71 L. T. p. 763; Att.-Gen. v. Tomline (1879), 12 Ch. D. p. 229; EaHern # 8. A. Telegraph Co. v. Cape Town Tramivaijs Co., (1902) A. C. p. 393; West V. BrUtol Tramways Co., (1908) 2 K. B. pp. 20, 23. The origin of this alleged distinction between natural and non-natural user is to be found in certain observations of Lord Cairns in Rylands v. Fletcher, L. R. 3 H. L. at p. 338; but it seems clear that these observations were made, with reference to the particular case of the percolation of water natu- rally present on the defendant's land, as opposed to the escape of water artificially brought upon that land. His illustration of the distinction is the case of Smith v. Kenrich (1849), 7 0. B. 515, in which the flow of water by gravitation into the plaintifE's mine, though caused by the mining operations of the defendant, was held to give no cause of action.. As to this, see infra, s. 62 (4). The distinction in question has, how- ever, recently received the approval of the Privy Council as an alternative ground of decision in Richards v. Lothian, (1913) A. C. 263. At page s. 15 226 NUISANCE. [chap. VI Exceptions. 9. The rule in Rylands v. Fletcher is subject to a number of important exceptions, there being particular classes of cases in which the occupier is either not liable at all, or not liable in the absence of negligence. These exceptions are considered in the succeeding sections. No liability for things naturally on defendant's land. Aliter if artificially accumulated. § 62. First Exception: Tilings Naturally on Land. 1 . The rule in Rylands v. Fletcher applies to things which are artificially brought or kept upon the defendant's land, and is inapplicable to things which are naturally there, how- soever dangerous they may be — c-fj-, noxious weeds, vermin, or water. So far from being absolutely liable for the escape of these things, the occupier of land is not even under any duty of care to prevent their escape. From such dangers every man must protect himself. Thus, in Giles v. Walker'^ it was held that the occupier of land is not bound to prevent the growth of thistles on it and the consequent spread of thistledown to the lands of his neighbours. On the same principle, an occupier is not bound to prevent damage to his neighbour by the natural escape of flood water from higher to lower levels. 2 ISTor is he liable for the overflow of a stream on his land caused by the growth of weeds or the deposit of silt in the bed of it.^ Similarly, there is no liability for the escape of noxious animals naturally on the defendant's land, such as rats, rabbits, or birds. ^ 2 . A person is liable, Jiowever, even for the escape of things naturally on his land, if he has artificially accumulated them 280 it is said: "It is not every use to which the land is put thati brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the laud or such » use as is proper for the general benefit of the com- munity." This was a case of the escape of water from lavatory pipes. It would appear, therefore, that the construction of distributing water- pipes in a building is an ordinary and natural use of land, but that the construction of the water-mains or reservoirs from which the water is obtained is not so. Such unreal and impracticable distinctions are not creditable to the development of English law. 1 (1890), 24 Q. B. D. 656. 2 Nleld V. London # 2V. W. My. Co. (1874), L. R. 10 Ex. 4. 3 Hodgson v. Maijor of York (1873), 28 L. T. 836. * Bradi/ v. Warren, (1900) 2 Ir. R. 632. Sixvr. 62] THINGS NATURALLY ON LAND. 227 thei'e so that their escape docs more mischief than it would otherwise have done. If he collects in a reservoir the rain- water that falls upon his land, he is no less responsible for its escape than if he had brought the water in pipes from else- where. So if, for the purposes of sport or otherwise, ho purposely accumulates rabbits or game upon his land, he is probably liable for all damage done by them to neighbouring proprietors. "I will first deal," says Pollock, B., in Farrer V. yelson,^ "with the question whether an action can be brought by a neighbour against any person who collects animals upon his land so as to injure the crops of the neigh- bour, and I should say that beyond doubt such an action would lie. "8 3. Although a person is not liable for allowing the escape .inter if of things naturally on his land, he is liable for causing their fiutiveiy escape. Thus, in Whalley v. Lanoashire cC Yorkshire Rig. caused. Co J a railway embankment caused an accumulation of flood water, and in order to get rid of the water the railwaj' com- pany pierced the embankment and so caused the water to escape with destructive violence into the adjoining land of the plaintiff; and it was held that the company was liable for the damage so done.^ On the same principle, a person is 5 (1885), 15 Q. B. D. p. 2«0. ^ It is true, indeed, that in the old case of Bowlston v. Hardy (1597), Ore. Eliz. 547, it was decided that the making- of coney burrows and the keeping of coneys therein which ate the crops on the adjoining land of the plaintifi was no cause of action. But the reason given for the de- cision is the very insufficient one that the defendant had no property in the coneys^ — that they were not his, and therefore that he was not answerable for them. Probably this case is no longer law. See Brady V. Warren, (1900) 2 Ir. R. 632; 0' Gorman v. 0' Gorman, (1903) 2 Ir. E. 573. ' (1884), 13 Q. B. D. 131. Followed in Maxey Drainage Board v. Gt. N. My. Co. (1912), 106 L. T. 429. 8 The act of preventing the entrance of flood water, on the other hand, is perfectly lawful, even though the known and necessary conse- quence is to cast that water upon the land of one's neighbour. Nield v., London # N. W. My. Co. (1874), L. R. 10 Ex. 4. So also in Greyvensteyn v. Hattingh, (1911) A. O. 355, it was held lawful to drive back a swarm of locusts from entering the defendant's land, even though they were thereby constrained to go or remain upon the neighbouring land of the plaintiff. Presumably also, it is not actionable to drive mischievous animals, e.g., birds, vermin, or trespassing cattle, off one's own land, even though the natural consequence is that they subse- quently enter upon the land of other persons, provided that they are not directly driven upon that land so as to constitute a trespass. 15(2) 228 NUISANCE. [chap. vir. Liability of mine -owners. Smith V. Kenrick. responsible for the escape of water from his land if it is due to some artificial structure made or maintained by him there, or to any other alteration of the natural condition of the land . Thus, in Hiirdman v. North Eastern Railway Co.^ the de- fendants were held liable for maintaining! on their land an artificial mound of earth from which rain-water percolated into the wall of the adjoining house of the plaintiff. " If any one by artificial erection on his own land causes water, even though arising from natural rainfall only, to pass into his neighbour's land, and thus substantially to interfere with his enjoyment, he will be liable to an action at the suit of him who is so injured. "^'3 4. The general principle that a person is liable for causing the escape of water from his land into that of his neighbour is subject to an exception in the case of adjoining mine- owners. The case of Smith v. Kenrich,^^ followed by Baird V. Williamzson^^ and Wilson v. Waddell,^^ has established the rule that no action will lie for the escape of water by natural gravitation into the plaintiff's mine, if this escape is caused merely by the working of the defendant's mine in the ordi- nary manner. " Each mine-owner has all rights of property in his mine, and among them the right to get all minerals therefrom, provided he works with skill and in the usual manner. And if, while the occupier of a higher mine exer- cises that right, nature causes water to flow to a lower mine, he is not responsible for this operation of nature. 'i* It makes no difference that the damage complained of was the- known and necessary result of the defendant's operations. The reason for the rule may be deemed to be this: that the plaintiff in such cases has brought the mischief on himself by altering the natural condition of his land. He must guard himself against the results of that alteration by leaving suffi- cient barriers against the percolation of water. He cannot by 9 (1878), 3 C. P. D. 168. 1" Ibid. p. 173, per cur. JBroder v. Saillard i^ioi-a), 2 Ch. D. 692, is a similar decision. n (1849), 7 0. B. 515. 12 (1863), 15 C. B. (N. S.) 376. la (1876), 2 A. C. 95. li Baird v. Williamson (1863), 13 C. B. (N. S.) p. 391. SECT. 63] CONSENT OF THE PLAINTIFF. 229 digging out the whole of his minerals impose an obligation upon his neighbour to refrain from doing the same.^'^' The rule in Stnith v. Kcurlck^^ applies only to the escape ■of water by natural gravitation in consequence of the ordi^ nary mining operations of the defendant. A mine-own or is liable if he purposely, and not merely as an ordinary incident of mining, discharges water from his own mine into that of the plaintiff .i'' § 63. Second Exception: Consent of the Plaintiff. The rule in Eylands v. Fletcher is not applicable to the Consent of escape of thing-s brought or kept upon his premises by the defence ^ defendant not exclusiveb' for his own purposes, but for the except in benefit and with the consent of the plaintiff. In such cases negligence, the defendant is not liable except for negligence. This prin- ciple finds its chief application in those cases in which the different storeys of a building are in the occupation of diffe- rent persons, and the occupant of a lower store}' complains of the damage done by the escape of water from an upper storey . Whether this water is rain-water collected from the roof, or water supplied ab extra in pipes, it is settled law that there is no liability for any such escape in the absence of proved negligence on the part of the upper occupant. ^ For in such cases the water has been collected or brought there for the mutual benefit and with the express or implied consent of both parties; there is therefore no sufficient reason why the ^^ In several cases the exceptional rule in Smith v. KeiiricJc is dis- tinguished from the general rule in Rylands v. Fletcher on the ground that the former relates to the natural use of land and the latter to its non-natural or extraordinary use. Rurdman v. N . E. Rly. Co. (1878), 3 O. P. D. p. 174; Whalley v. L. # Y. Rly. Co. (1884), 13 Q. B. D. p. 140; Rylands v. Fletcher, L. R. 3 H. L. p. 338. This distinction^ however, seems difficult of acceptance. It is not easy to see how the excavation of a coal-mine is a natural use of land, and the excavation of a reservoir a non-natural use of it. See above, s. 61 (8). i« (1849), 7 C. B. 515. 1^ Westminster Brymbo Coal ^ Coke Co. v. Clayton (1866), 36 L. J. Oh. 476; Baird v. Williamson (1863), 15 C. B. (N. S.) 376. 1 Carstairs v. Taylor (1871), L. E. 6 Ex. 217; Ross v. Fedden (1872), L. R. 7 Q. B. 661; Anderson v. Oppenheimer (1880), 5 Q. B. D. 602; Blahe V. Woolf, (1898) 2 Q. B. 426; Gill v. Edouin (1894), 71 L. T. 762; 72 L. T. 579; Riclcards v. Lothian, (1913) A. O. 263. 230 NUISANCE. [chap. VII. risk of accident should lie upon the upper, rather than upon the, lower occupant, and the only duty is one of reasonable care. The same principle would doubtless apply to an escape of gas or any other deleterious substance which is there for the mutual benefit of the occupants. But, except so far as this doctrine of mutual benefit extends, the rule in Rykaids V. Fletcher is just as applicable between upper and lower occujDiers as between adjacent occupiers. § 64. Third Exception: The Act of a Stranger. No liability 1 • The rule in Rylands v . Fletcher is not applicable to for the act of (Jamage done by the act of a stranger. Thus, if a trespasser a stranger. . ° ■' ... . lights a fire on my land, I am not liable if it burns my neigh- bour's property. 1 So in Box v. Jubb- the defendants were lield not responsible for damage done through an overflow from their reservoir, when that overflow was caused by the act of a third person who emptied his own reservoir into the stream which fed that of the defendant . Kelly, C . B . , says : ^ " The matters complained of took place through no default or breach of duty of the defendants, but were caused by a stranger over whom and at a spot where they had no control." So in Wilson v. ^ewherry'^ a declaration that the plaintiff's horses were poisoned by eating certain clippings which had been cut from the defendant's yew trees and placed on the plaintiff's land was held bad on demurrer, because it was not alleged how the cuttings got upon the land, and they might have been put there by a trespasser who had cut and removed them without the defendant's authority. So in Nichols v. Marsland,^ Bramwell, B., says, sjoeaking of the water in the defendant's reservoir: " Suppose a stranger let it loose, would the defendant be liable ? If so, then if a mischievous boy bored a hole in a cistern in any London house, and the water did mischief to a neighbour, the occupier of the house would 1 Black V. Chrlstclvurch Finance Co., (1894) A. C. 48; Beaulieu v. Finfflam, Y. B. 2 H. IV., f. 18, pi. 5. 2 (1879), 4 Ex. D. 76. s Ibid. p. 79. i (1871), L. R. 7 Q. B. 31. ^ (1875), L. E. 10 Ex. p. 259. SECT. 64] THE ACT OF A STRANGER. 231 be liable. That cannot be."'^ So in Richards v. Lothian'' it Avas held by the Privy Council on this ground that the occupier of an upper storey was not liable for damage done to the occupier of a lower storey by the escape of water from a lavatorj-, when the escape was caused by the malicious act of a third person. 2. It does not clearly appear, however, who is to be deemed Who is a a stranger within the meaning of this rule. The term cer- stranger, tainly includes a trespasser, and also any person who, without entering on the defendant's premises at all, wrongfully and without the defendant's authoritj^ causes the escape of dangerous things from those premises: as in the case of Box V. Juhb^ itself. It is equally clear that the term stranger does not include any person employed or authorised by the defendant to deal in any way with dangerous things on his land; for the acts of such a person, even though he is an independent contractor, and even though he acts in excess or disregard of his authority, the occupier is vicariously liable.^ But what shall be said of persons lawfully upon the defendant's land with his permission, but without authority to bring upon it, or to deal with, dangerous things — for examjDle, the members of his family, his servants, his guests, or licensees permitted to use the land ? It is submitted that for the acts of all such pei-sons in bringing or keeping dangerous things on the premises, or in meddling with such things already on the premises, the occupier is vicariously liable under the rule in Rylands v. Fletcher ^^ 3. Although an occupier is not absolutely and vicariously Neu-%ence responsible for damage done by the act of a trespasser or "' °°t , . 1 1 1 ■ 1 • • ■ preventing- other stranger, it may be that he is subject m certain cases damage by to the lesser obligation of using reasonable care to prevent ^*™°g^™- such damage. On this point, however, there seems to be no authority . e See also Gill v. Edouin (1894), 71 L. T. p. 763. ■' (1913) A. C. 263. 8 (1879), 4 Ex. D. 76. 9 Black V. Christchurch Finance Co., (1894) A. C. 48. 1" See, however, the observations of Eve, J., in Whitmorex, Ltd. v. Stanford, (1909) 1 Ch. at p. 438. 232 NUISANCE. [chap. VII. No liability for the act of God. Nichols 1'. Marsland. Act of God defined. § 65. Fourth Exception: The Act of God. 1. The rule in Rylands v. Fletcher is not applicable to damage caused by the act of God or vis major. '^ The au- thority for this important limitation upon the rule of absolute liability is tlie decision of the Court of Exchequer Chamber in Nichols v. Marsland.^ The defeaidant was in possession of certain artificial pools formed by damming a natural stream. The embankments and weirs were well and care- fully constructed and were adequate for all ordinary occa- sions. A very violent storm, hoAvever — described by witnesses as the heaviest within human memorj' — broke down the em- bankments, and the rush of water down the stream carried away certain bridges, in respect of wliich damage the action was brought. It was held, notwithstanding Rylaiids v. Fletcher, that the defendant was not liable, inasmuch as there was no negligence on the part of any one, and the accident was clue directly to the act of God. In the case of Hylands V. Fletcher, on the contrary, the accident was due to negli- gence on the part of the contractors by whom the reservoir was built, and for that negligence the owners of the reservoir were held vicariously liable. ^ 2. It is necessary, therefore, to ascertain precisely what is meant by the term act of God, as used in this connection. On this point it is impossible, as the authorities stand, to come to any certain conclusion, but it is submitted that the term as here used means any event ivhich could not hare been prevented by reasonable care on the part of any one. This, indeed, is not, as we shall see later, the strict technical sense of the term as used in certain other departments of the law, and notably in the law as to the liability of common carriers. 1 Til© terms act of God and vis major are synonymous. The former corresponds to the 9so5 g/ot of the Greeks and the vis dirina of the Romans. (D. 19, 2, 25, &. D. 39, 2, 24, i.) Other equivalents are damnmn fatale (D. 4, 9, 3, 1. D. 18, 6, 2, 1), vi-< iiatid-aHs (D. 19, 2, 69),' vis majo7- (D. 4, 9, 3, 1), and casiis major (D. 44, 7, 1, 4^. 2 (1875), L. E. 10 Ex. 255. 3 So in Carstairs v. Tat/lor (1871), L. R. 6 Ex. 217, in which the defendant was held not responsible for an escape of water from hia cistern through a hole made in it by a rat, one of the grounds of the decision was that such an accident was a case of ris innjor. Slid'. 65] THE ACT OF GOD. '■^'^'^ Nevertheless there seems good reason to conclude that in Xichols V Marsland the phrase is used, not in its strictest mid most technical sense, but in the wider and less specialised signification which has just been indicated. Putting this interpretation on the rule in Nichols y. J\Iars- General pi-in- IcDuJ, the whole law as to the liability of the occupiers of land at once assumes a simple and rational form. No occupier is liable for any escape which is due to the act of a stranger or to the act of God; which means that he is not liable where there has been no negligence on the part of any one, or where the onl}' negligence is that of a stranger (using that term in the sense already explained in the preceding section). In other words, the rule in Rylands v. Fletcher is a rule of vicarious liability by virtue of which the occupier of land is responsible for the escape of dangerous things, if caused by the negligence of any person whatever except a mere stranger ; and we have already seen reason to conclude that no person is a stranger, within the meaning of this rule, who is lawfully on the premises with the permission of the occupier. For the negligence of all such persons, whether they are servants, independent contractors, members of his family, or licensees, the occupier is made responsible by Rylands v. Fletcher. When there is no negligence at all on the part of any one, he is exempted from responsibility by Nichols v Marsland. When the only negligence is that of a stranger, ho is exempted from responsibility by Box v Jnhb.'^ There are, it is believed, no decisions which are inconsistent with this interpretation of the rule as to the act of God, although it must be admitted that it has been often said or assumed that Rylands v. Fletcher imposes liability in cases in which there has been no negligence on the part of any one. It is submitted that these dicta are based on an unduly narrow view of the exception established by Nichols v. Marsland.^ 3. It may be, however, that the term act of God as used in A narrower meaning of 4 (1879), 4 Ex. D. 76. 5 Sue, however, the observations of Sir Frederick Pollock, Law of Torts, p. 503, 9th ed., and in the Preface to Vol. 143 of the Revised Reports. 234 NUisANCii. [chap. vir. t^etermact Nichols V. Marslafid is to be taken in its strictest sense, discussed. thereby confining- the exception established by that decision to a narrower class of oases. It is necessary, therefore, to ascertain precisely what this strict signification is . The only adequate authorities on this point are the decisions on the liability of common carriers — the rule being that such carriers are absolutely responsible for any loss of the g-oods intrusted to them, save only when it is due to the act of God or of thei King's enemies. In the leading case of Nugent V. Smith^ the term in question is thus defined by James, L. J. : " The act of Cxod is a mere short way of expressing this proposition. A common carrier is not liable for any accident as to which ho can show that it is due to natural causes directly and exclusively without human inteiwention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to have been expected from him." " What is the act of God ? " says Lord Mansfield in Forward V. Pittard.'^ " I consider it to mean something in opposition to the act of man. To prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the King's enemies or by such an act as could not happen by the intervention of man, as storms, lightning, and tempests." If we use the term in this sense, it is not enough to make an accident the act of God that it is not due to any negli- gence on the part of any one; there is a second condition to be fulfilled — viz., that it must have resulted directly from natural causes without human intervention. " All causes of inevitable accident, casus fm'tuitus," saysCockburn, C. J., in Nugent v. Smith,^ "may be divided into two classes — those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause, and those which have their origin either in the whole or in part in the agency of man." The act of God is the opposite of the act of man . 6 (1876), 1 C. P. D. p. 444. ' (1785), 1 T. E. p. 33. 8 (1876),'l C. P. D. p. 435. SECT. 65] THE ACT OF UOD. 2:^5 Thus, if a ship is driven ashore by a tempesh, this is the act of Liod; but if it is run ashore during a fog by a mistake, however inevitable, on the part of the captain, this is the act of man.^ So if a building is set on fire by lightning, this is the act of God; but not so if a similar accident happens through the upsetting of a lamp by human agency, even though this was due to no negligence. It is true that in most cases human and natural agency co-operate to produce the result, but the immediate and direct cause is alone to be looked at in determining whether the act is that of God or man. When a ship is cast away in a tempest, this A\ould not have happened but for the act of the owner in sending her to sea, but the loss is the act of God for all that. ■i. Adopting this stricter interpretation of the rule in Alternative JS'ichoJs V. Marsland, we reach the following result: The prhfok)le occupier of land is absolutely liable except (1) when the stated. damage is caused by the negligence of a stranger, and [2 when it is directly caused by natural agencies Avithout negligence on the part of any one ; but if it is caused directh' b}" human agency, the occupier is liable, even though there is no negligence on the part of a,nj one, unless the active agent is a stranger. It is submitted, however, that this is not an accurate statement of law, and that the distinction between accidents due directly to human agency and those due directly to natural causes (however material in respect of the liability of carriers) is irrelevant in respect of the matter now in hand. Its importance in the former case is based on evidential considerations which are absent in the latter. The reason why a carrier is absolutely liable for the results of human activity but not for the results of natural causes is that in the former case the law conclusively pre- sumes collusion, fraud, or negligence, while in the latter case the nature of the accident sufficiently rebuts any such pre- sumption. But this is a presumption limited to carriers and certain other classes of persons (doubtless in olden times with sufficient reason),!" and it seems odd to extend it to the occuj)iers of land. 9 Ziuer Alkali Co. v. Johnson (1874), L. B. 9 Ex. 338. 10 See Coggs v.' Bernard, 1 Sm. L. C. p. 185, 11th ed.; D. 4, 9, 1, 1. 2;jti NUISANCE. [chap. VII. Act of God not limited to particular kinds of natural agency. Standard of care the same as in other cases. 5. In conclusion, there are two possible misconceiotions as to the term act of God which it may be well to mention. In tho first place, all natural agencies, as opposed to human activities, constitute acts of God, and not merely those which attain an extraordinary degree of violence or are of very unusual occurrence. The distinction is one of kind and not one of degree. The violence or rarity of the event is relevant only in considering whether it could or could not have been prevented by reasonable care; if it could not, then it is the act of God, howsoever trivial or comrtion its cause may have been. In the second place, the standard of care in such eases is not different from and greater than that adopted by the law in other cases. The question here, as elsewhere, is whether the accident could have been prevented by reasonable care; not whether it could have been prevented by any possible or imaginable care. "I find no authority," says Cockburn, C. J., in Nugent v. Smith,'^'^ "for saying that the vis major must be such as no amount of human care or skill could have resisted or the injury such as no human ability could have prevented; and I think this construction of the rule erroneous." Absolute liability excluded by statutory authority. § 66. Fifth Exception: Statutory Authority. 1 . The rule in Rylands v . Fletcher is not applicable where the defendant acted in pursuance of special statutory autho- rity in placing the dangerous thing on the land from which it escaped. In Green v. Chelsea Waterworks Company^ a main belonging to the defendant company burst, and the water flooded the plaintiff's premises. It was held by the Court of Appeal that the company, being authorised by Act of Parliament to lay the main, and having been guilty of no negligence, was not liable in damages to the plaintiff. Lindley, L. J., speaking of the rule in Rylands v. Fletcher, says: 2 "It is possible that that principle might have been 11 (1876), 1 O. P. D. p. 438. 1 (1894), 70 L. T. 547. - Ibid. p. 549. SECT. 66] STATUTORY AUTHOK'iTY. 237 applied to companies having statutory authority to make railways or carry water, but the Court has declined to extend it to such oases. . . . That case is not to be extended beyond the legitimate principle on which the House o£ Lords decided it. If it were extended as far as strict logic might require, it would be a very oppressive decision. Here the defendant company were only doing what they were authorised to do by their Act, and as they were not guilty of negligence they are not liable for damage." As indicated by L(?rd Lindlej^ in the above passage this exception is quite illogical. It is based merely on the desire of the Courts to confine within the narrowest possible limi- tations the rule of absolute liability which unfortunately received the approval of the House of Lords in Hylands v. Fletcher. On no logical principle is it possible to maintain that the authority of an Act of Parliament has a greater effect than the authority of the common law in excluding liability for the consequences of the action so authorised. 2. Even, however, where special statutory authority exists, Unless the • it does not exclude the rule in Eijlands v. Fletcher if the ^*?*'^*« °*.^^''- •-' wise provides. statute, as not infrequently happens, contains an express pro- vision that nothing therein is to affect the liability of the company or person so authorised for any nuisance resulting from the exercise of the statutory power. ^ 3. Notwithstanding statutory authority, the defendant Liability for may be liable if the accident is duo to negligence, even though "naeplndent the negligence is that of an independent contractor. Thus, contractor, in Hardaker v. Idle District Council^ the defendants were held liable for an escape of gas from the street into ,the plaintiff's house, although the only negligence was that of an independent contractor, and although the defendants were acting under statutory authority .^ 3 Midwood ^ Co. V. Corporation of Manchester, (1905) 2 K. B. 597; Charing Cross Eleotricity Supply Co. v. EydrauUc Power Co., (1914) 3 K. B. 772. * (1896) 1 Q. B. 335. 5 It is to be observed, therefore, that if the exception of the act of God is correctly given the wide scope suggested in s. 65, supra, this Ological exception of statutory authority becomes needless. As to the effect of statutory authority generally, see s. 69, infra. 238 NUISANCE. [chap. vri. Escape of things from a hig-hway. A case of absolute liability. § 67. Nuisances in a Highway. 1 . The law of nuisance a23plies not merely to the ose;ipe of deleterious things from the defendant's own land, but also to their escape from a highway into the adjoining land of the plaintiff, if that escape is caused by the act or default of the defendant. Thus, in Benjamin v. Storr'^ an action was successfully brought by the occupier of a shop adjoining a public street in respect of the nuisance of smell and noise caused by the act of the defendant in allowing his horses to stand for an unreasonable time in the street opposite the plaintiff's door. 2. Moreover, the rule of absolute liability for nuisance established by Rylands v. Fletcher applies to the escape of things from the highway, no less than to their escape from the defendant's own land. He who brings any dangerous thing upon the highway, or interferes with anj' dangerous thing already there, with the result that it does damage on adjoining property, is absolutely liable without proof of negligence, unless he oair prove that the accident was due to the act of a stranger or to the act of God . Thus, in Midwood V. Mayor of Manchester^ the corporation of Manchester was held liable, apart from any proof of negligence, for an explosion and fire caused by the escape into the plaintiff's house from the adjoining roadway of an inflammable gas created by the fusing of a defective electric cable there laid down by the defendant, and the resulting volatilisation of the bitumen in which the cable was enclosed. Similarly, in HardaJcer v. Idle District Council^ the defendant council 1 (1874), L. K. 9 C. P. 400. 2 (1905) 2 K. B. 597. 3 (1896) 1 Q. B. 335. It is submitted that this case is rightly to be explained as a mere application or extension of the rule in Rylands v. Fletcher. The reason actually given for the decision, however, is that since the coSncil was under a duty to support the gas-pipe, they could not avoid liability by delegating this duty to an independent contractor who did not fulfil it. But this reasoning seems unsatisfactory. If the duty of the council was merely to take due care to support the pipe, then they performed that duty and did not merely delegate it, when they intrusted the work to a contractor whom on good grounds they believed to be competent. The explanation given is intelligible only if we SECT. 67] NUISANCES IN A HIGHWAY. 239 employed an indopendcnt contractor to make a sewer in the highway, and by his negligence a gas-pipe was left insuffi- ciently supported in the excavation made by him, with the result that it was fractured, and the escaping g-as found its way into the plaintiff's house and there exploded. The council was held liable, although the accident was due solely to the negligence of an independent contractor. 3. In Charing Cross Electricity Supply Company v. Liability as Hydraulic Power Company,^ the Court of Appeal, profess- J^j^g^s^of a°' ing to follow Midu-ood v. Mayor of Manchester,'^ went highway, considerably further by holding that the rule in Rylands v. Fletcher was applicable as between two companies using a highway as licensees under statutory authority for the trans- mission of water and electricity respectively; and the water company was held liable for damage done to the electric cables of the other company by the escape of water from a broken main. It does not yet appear, however, by what principle the rule in Rylands v. Fletcher is to be limited if it is once extended beyond the case of adjoining occupiers.*^ 4. It is otherwise, however, with dangers incident to the -iliter ^ith. ordinary use of tlie highway for purposes of traffic. These use of the dangers the adjoining occupiers must submit to and guard ^'•S^way. themselves against, so long as they are not aggravated by the negligence of him whom they seek to make liable for them. If I hire a cab, I am not responsible if by the negligence of the driver his horse runs away and breaks a shop window. In Tillett v. Ward'' the defendant drove cattle along the -highway, and was held not liable for damage done by the -already assume that the duty of the council was absolute; but this 19 the very fact to be explained and proved. On the reasoning given in this case it could equally be shown that every person was responsible for the negligence of all persons whom he employed or authorised to do anything on his behalf. See s. 33, supra. * (1914) 3 K. B. 772. 5 (1905) 2 K. B. 597. * No light is thrown on -Ehis important question by the judgment of the Court of Appeal. At page 779 Lord Sumner contents himself with sayii^ : " I am satisfied that Rylands v . Fletcher is not limited to the «ase of adjacent freeholders. I shall not attempt to show how far it extends. It extends as far as this case, and that is enough for the present jpurpose.'' ^ (1882), 1 Q. B. D. 17. 240 NUISANCE. [chap. VII. entrance of one of them through the open doprway of the plaintiff's shop.® Nuisauces legalised by twenty years' prescription. Sturges V. Brida-mau. § 68. The Legalisation of Nuisances by Prescription. 1 . The right to commit a nuisance may he acquired as an easement by prescription. A discussion of the acquisition of easements is appropriate to the law of property rather than to that of torts; speaking generally, however, we may say that if a nuisance has been continuously in existence for twenty years, a prescriptive right to continue it is acquired as an easement .appurtenant to the land on which the nuisance exists . On the expiration of this period the nuisance becomes legalised ah initio, as if it had been authorised in its com- mencement by a grant from the owner of the servient land.i 2. It is not sufficient, however, that the operations of the defendant which now cause the nuisance have been continued for the space of twenty years ; they must have been a nuisance for that period. The time runs, not from the day when the cause of the nuisance began, hut from the day when the nui- sance began. In Sturges v. Bridgman^ the defendant had for more than twenty years used certain heavy machinery in his business as a confectioner. His premises adjoined the lower end of the garden of the plaintiff, a physician. Some short time before the action the plaintiff built a consul tin|g room at the foot of his garden, and then found that in the use of it he was seriously inconvenienced by the noise of the defendant's machinery. The defendant pleaded a prescrip- tive right, but the defence was held insufficient, because there had been no actual nuisance until the erection of the plaintiff's consulting room, and until tlien he had had no right of action. 3 3. It follows from the same principle that the nuisance 8 See further as to nuisances ia a Hghway, ss. 91 and 92, infra. 1 Elliotson V. Feetliam (1836), 2 Bing. N. C. 134; Bliss v. Sail (1838), 4 Bing. N. 0. 183; Sturqes v. Bridqman (1879), 11 Oh. D. 852; Ball v. Eaif (1873), L. E. 8 Oil. 467. 2 (1879), 11 Oh. D. 852. 3 See also Ball v. Rm/ (1873), L. R. 8 Oh. 467. SECT, as] NUISANCES BY PRESCRIPTION. 241 must for twenty years have been a nuisance to the plaintiff or hit predecessors in title, and that it is not enough that it has been for that period a nuisance to other people in the occupation of other property. The easement can be acquired only against specific property, not against all the world. A noisy or noisome factory may have been for twenty years a nuisance to the house of A, and may yet remain actionable as a nuisance to the newly erected house of B. 4. No ^public nuisance can be legalised by prescription. AlUer ydth. Thus, no operation which constitutes a nuisance to a highway nuiaanoes. can become lawful by any lapse of time.* When, however, the public nuisance is at the same time a private nuisance also, the lapse of twenty years will, it is submitted, legalise the private nuisance and take away all private remedies, although it leaves the public nuisance and the public remedies unaffected. Thus, a factory may be a nuisance to the high- way as well as to the adjoining proprietors. After twenty years these latter will have no remedy for the private injury, but they may stiU prosecute for the public injury, or move the Attorney-General to apply on their relation for an injunction to put an end to it. § 69. The Legalisation of Nuisances by Statute. 1 . When a statute specially authorises a certain act to be Statutory . • 1 1 i? 1 authority tor done by a certain person, which would otherwise be unlawful a nuisance. and actionable, no action will lie at the suit of any person for the doing of that act. For such a statutory authority is also a statutory indemnity, taking away all legal remedies pro- vided by the law of torts for persons injuriously affected. No compensation is obtainable save that, if any, which is expressly provided by the statute itself. This defence of statutory authority has its most common and important applications in actions of nuisance, and it is therefore appropriately dealt with in the present connection, but it is necessary to note that the rule is one of general application throughout the whole sphere of civil liability. 4 2 RoUe's Abridg-. 265; R. v. Cross (1812), 3 Camp. 224. 5. 16 242 NUISANCE. [chap. VII. Includes all 2. This statutory authority and indemnity extends not necessary . "^ •' _ •' consequences merely to the act itself, but to all its necessary consequences . anSiorS? When the Legislature has authorised an act, it must be deemed also to have authorised by implication all inevitable results of that act; for otherwise the authority to do the act vi^ould be nugatory The test of the necessity of a con- sequence is the impossibility of avoiding it by the exercise of due care and skiU. No consequence which can be so avoided is within the scope of the statutory indemnity; every consequence which cannot be so avoided is within that protection. "It is now thoroughly well established," says Lord Blackburn in Geddis v. Proprietors of Bann Reservoir,'^ "that no action will lie for doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented, it is, within this rule, negligence not to make such reasonable exercise of their powers." Thus, in Vaughan v. Tajf Vale Raihvay Co.^ the defendant company, having statutory authority to use locomotive steam-engines, was held not liable for a fire caused by an escape of sparks, it being proved that the engines were con- structed with aU. due care and skill, and that it was impossible wholly to prevent the escape of sparks. At common law it would have been an actionable nuisance to use engines which were such a source of danger; and it would have been no defence that they had been made as safe as they could be.^ Similar statutory protection is possessed by railway com- 1 (1878), 3 A. C. 430, p. 455. 2 (I860), 5 H. & N. 679. The effect of this decision has been partly excluded by the Railway Fires Act, 1905, which provides that railway companies shall be liable, notwithstanding their statutory authority, to the extent of one hundred pounds at the most, for damagfe done to agricultural land or crops by the escape of sparks or cinders from locomotive engines. See Martin v. Gt. Eastern Rly. Co., (1912) 2KB 406-. 3 Jones v. Festiniog Rly. Co. (1868), L. R. 3 Q.. B. 733. SECT. 69] STATUTORY AUTHORIIY. ^43 panies in respect of the various other nuisances which are necessarily incidental to the management of their business — e.g., noise and vibration > In The Eastern cC' South African Telegraph Co. v. Cape Toion Tramicaj/s Co.^ the Privy Council held that an electric tramway company, acting under statutory powers which authorised it to use the rails for the return circuit, was not liable for a resulting disturbance of the telegraph cables of ,^ the plaintiffs by induced current^s, as this was a necessary result of the act authorised, and therefore within the scope of the authority. 3. It is very necessary, however, in the apjDlication of Absolute and the foregoing rule to distinguish between absolute and condi- authority, tional statutory authority. Absolute authority is authority to do the act notwithstanding the fact that it necessarily causes a nuisance or other injurious consequence. Condi- tional authority is authority to do the act provided it can be done without causing a nuisance or other injurious conse- quence. This condition is sometimes expressed,^ but is more often left to be implied from the general provisions of the statute. In Metropolitan Asylum district v. KiW a local authority, having statutory authority to erect a small-pox hospital, was restrained from erecting one in a place in which it would have been a source of danger to the residents of the neighbourhood. This statutory authority was construed, not as an absolute authority to erect a hospital where the defen- dants pleased, and whether a nuisance was thereby created or not, but as a conditional authority to erect one if they could obtain a suitable site where no nuisance would result. On the same principle, in Rapier v. London Tramways Co.^ the defendant company, although authorised to use horse traction, and therefore (by implication) to keep stables, was * Hammersmith Sly. Co. v. Brand (1869), L. R. 4 H. L. 171 ; London, Brighton, etc. Ely. Co. v. Truman (1885), 11 A. 0. 45; .itt.-Gen. v. Metropolitan Ely. Co., (1894) 1 Q. B. 384. 5 (1902) A. O. 381. Cf. National Telephone Co. v. Baker, (1893) 2 Oh. 186. 6 As in Powell v. Fall (1880), 5 Q. B. D. 597. ' (1881), 6 A. C. 193. 8 (1893) 2 Oh. 588. 16(2) 244 NUISANCE. [chap. VII. Liability for consequences outside of statutory authoritv. restrained from maintaining a large stable containing two hundred horses in a place in which the resulting noise and smell, caused a nuisance to adjoining residents, even though all due care was used in the management of the premises. Whether authority is absolute or conditional is a question of construction depending on all the circumstances of the case. Where the authority is imperative and not merely permissive, it is necessarily absolute — that is to say, when the statute not merely authorises but also directs a thing to be done, then it may be done regardless of any nuisance that flows from it.^ An authority which is merely permissive, on the other hand, is prima facie conditional only; for the Legislature will not be deemed, in the absence of special reasons for so holding, to have intended to take away the rights of private persons without compensation. ^o 4. We have seen that no nuisance falls within the scope of a statutory authority and indemnity unless it is a necessary consequence of the act specifically authorised — that is to say, unless it cannot be avoided by the use of due care and skill. It is now to be noticed that by due care and skill in this con- nection is meant not merely that of the defendant himself, but that of all his agents, whether servants or independent contractors. A statutory authority to run locomotive engines includes any escape of sparks which cannot be prevented by any reasonable skill and care in construction, but does not include or legalise an escape due to the incompetence of the engineer's who designed or constructed the locomotives, whether these engineers are the company's servants or not. What, then, is the liability of the defendant for conse- quences which are thus unauthorised, because unnecessary ? The answer is that the matter stands as at common law, the statute being inapplicable and irrelevant. If the negligence, therefore, which causes the injurious consequence is that of the defendant himself or his servants, he is liable in all cases . 9 Metropolitan AsyliMn IHstrict v. Hill (1881), 6 A. O. p. 213. 1° Ibid. pp. 208, 213; Canadian- Pacific Railioay Co. v. Parhe, (1899) A. C. 535; Price's Patent Candle Co. v. London County Council, (1908> 2 Ch. 526. SECT. 69J STATUTORY AUTHORITY. 24-5 If, however, it is that of an independent contractor, his employer is liable only when a person is at common law liable vicariously for the acts of such a contractor. Thus, in Penny v. Wimbledon Vrban Conncil^'^ the defendant coun- cil, though acting in the exercise of statutory powers, was held liable for the negligence of a contractor who was em- ployed by them to repair a road, and who left there a heap of soil unlighted at night to the injury of a passenger. On the same principle, in Holliday v. National Telephone Co.^- the defendant company, lajdng wires below the public highway under statutory authority, was held liable for the negligence of an independent contractor. So in Hardaker v. Idle Dis- trict Coiincil^^ the defendants were held liable for an escape of gas from the roadway into the house of the plaintiff, * although the only negligence was that of an independent contractor, and although the defendants were acting under statutory authority. ^'^ § 70. Liability for Fire. 1. Liability for damage done by the accidental spread of fire is, it is believed, governed by the same principles as those which determine liability for the escape of any other dangerous thing. For certain reasons, however, and chiefly because of the existence of a statute which bears upon the matter, this form of injury is one which requires separate consideration . The statute referred to is 14 Geo. III. c. 78, s. 86, which Liability for provides "that no action, suit, or process whatever shall be ty^gfatlTt™^ had, maintained, or prosecuted against any person in whose house, chamber, stable, barn, or other building, or on whose estate any fire shall accidentally begin." This Act repealed certain earlier provisions to the same efiect; the first of them being 6 Anne, c. 31, which, howoNor, extended only to fires in " (1899) 2 Q. B. 72. 12 (1899) 2 Q. B. 392. " (1896) 1 Q. B. 335. 1^ Aa to the operation of statutory authority in excluding the rule in Sylands v. Fletcher, see s. 66, sv/pra. '.i4t) NUISANCE. [chap. vir. For whose negligence occupier is liable. Statute merely declaratory. a "house or chamber." The natural interpretation of this \'cry ill-drawn enactment is that it abolishes all liability for accidental fires, whether they are (Jue to negligence or not, and this is the construction put upon the Act of Anne by Blackstone in his Commentaries. ^ Yet whatever may have been the real intention of the Legislature, it has been finally determined by the judgment of the Court of Queen's Bench in Filliter v. Phippard? that the statute extends only to inevitable accident, and that fires due to negligence are still a source of liability. 2. This being so, the question arises: For whose negli- gence in the matter of fire is the occupier of the land responsible; only for his own, or also vicariously for that of other persons ? This question is left open by Filliter v. Phippard, but receives a partial answer in the case of Black V. Christchurch Finance Co.,^ in which the occupier was held liable for the act of an independent contractor who negli- gentlj' and in disregard of his instructions lit a fire on the defendants' property at a dangerous and improper season of the year. It is clear from this case that the liability of an occupier for negligent damage by fire is not limited to bis own negligence and to that of his servants acting in the course of their employment. How far, then, does it extend ? There seems no reason for supposing that it is any more restricted than his liability for the escape of any other dangerous isubstance; and if this is so, it probably extends to the negligent acts of all persons lawfully on the premises with the occupier's permission, whether they are servants, contractors, members of his family, or licensees. But for the act of a stranger he is not responsible in this any more than in other cases.* If this is so, the statute of 14 Geo. III. as interpreted by Filliter y. Phippard is probably merely declaratory of the common law, for this seems to be the rule indicated by the common-law decisions prior to the Act of Anne. Thus, in 1 I. 431. 3 (1894) A. C. 48. - (1847), 11 Q. B. 347. J- See above, s. 64. SEcr. to] liability fok fike. 217 the old case of BeaMlien v. Finglam,^ it is said by Markham, J. : "A man is bound in such a case to answer for the act* 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 do^v^l all my house and my neigh- bour's house too, in that case I must answer to my neighbour for the damage done to him .... I shall have to answer to my neighbour for &u.j one 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 Avith a candle or anything else) by which my neighbour's house is burned. 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 consequence my neighbours' houses are burned too, I shall not be bound to answer to them for this." In a some- what less ancient case'^ it is said: " If my friend come and liel in my house and set my neighbour's house on fire, the action lietlt against me." And in Turherville v. Stampe,'^ Holt, C'.J.. says: "If a stranger set fire to my house, and it burns my neighbour's, no action will lie against me." •J. It is sometimes said, indeed, that the common law. Liability at before the Act of Anne, held an occupier absolutely liable for damage done by fire independently of any negligence either on his part or on that of any one else. There is, however, no sufiicient authority for any such doctrine, and it is contrary to the clear opinion of Holt, C. J., and the Court of King's Bench in Turherville v. Stampe,'^ decided before the Act of Anne. It is there clearly recognised that liability for fire is based on the negligent lighting or care of it. " He must at his peril take care that it does not through his neglect injure his neighbour. If he kindle it at a proper time and place, and the violence of the wind carry it into his neighbour's ground and prejudice him, this is fit to be given in evidence."^ 5 Y. B. 2 Henry IV. 18, pi. 5. See Kenny's Cases on the Law oF Torts, p. 589. 8 Croyatb V. Morris, 1 Brownl. & Groldes. 197. "' (1697), 1 Ld. Eaym. 264. 8 \i JXod. p. 152. common law. 248 NUISANCE. [chap. vir. Statutory liability. Contrary opinion considered . Yet however this may have been before the statute, it is submitted that since the statute there can be no liability for accidental fire in the absence of any negligence on the part of unj one concerned. The present law is a rule of vicarious liability for the negligent acts of all persons except mere strangers — not a rule of absolute liability for accidents for which no one is to blame. This, it will be remembered, is the interpretation which we have already placed on the general rule in Rylands v. Fletcher as modified by Nichols v. Marsland ;^ and if this is correct, liability for fire stands on exactly the same basis as liability for water or any other dangerous thing. 4. It is sometimes maintained^" that even at the present day, and notwithstanding the statute, liability for fire is absolute and independent of negligence. Those who hold this opinion seek to evade the statute by construing the words '' shall accidentally begin " as applicable only to fires that are accidental in their origin, and not to fires intentionally lit but accidentally spreading and escaping from the defendant's land. The statute would apply, for example, to a fire caused by lightning or spontaneous combustion, but not to one caused by the bursting of a lamp. This interpretation is suggested in Filliter v. Phippar(P-^ itself as a second and supplementary ground for the decision. It is submitted, however, that it is unsound. It seems sufficiently clear that the statute was not intended to apply solely to fires caused by lightning or spontaneous combustion, and that the acci- dental burning of a house by the explosion of a lighted lamp is as much within the Act as a similar accident caused by an explosion of gunpowder. The cases of Jones v. Festiniog Rly. Co.^- and Powell v. Fall,^^ which are sometimes cited as authorities for the proposition that liability for fire is independent of any negligence on the part of any one, do not in reality admit 9 Supra, a. 65 (2). 10 See Clerk & Lindsell's Law of Tarts, p. 471, 6th ed. " (1847), 11 Q. B. 347. 12 (1868), L. E. 3 Q. B. 733. 13 (1880), 5 Q. B. D. 597. SKOT. 70] IJABILIIY FOR FIRE. ~i^ of any such interpretation. In these cases the defendants Avere held liable for fire caused by the escape of sparks from locomotive steam-engines used by them, and it was held to be no defence that all possible care and skill had been used in the construction and management of these engines to prevent the escape of sparks . In neither case was the engine used under any statutory authority which granted au}- pro- tection against the ordinary rule of liability at common law. It seems clear that th^e are not cases of absolute liability for fire at aU, but are merely illustrations of the familiar principle, already considered, i* that if any operation cannot be carried on without causing damage by the escape of delete- rious or dangerous things the carrying-on of that operation is an actionable nuisance, and it is no defence that all possible care and skill were used to prevent or minimise the damage done by it . He who cannot by any care or skill carry on the business of a sawmill without annoyance to his neighbours cannot lawfully do so at all, except by agreement with his neighbours or under the protection of statutory authority. This liability is not independent of negligence, for the very act of conducting an operation which cannot by '\are and skiU be rendered innocuous is itself an act of negligence. The argument in these two cases, therefore, was devoted almost wholly to the question whether there was or was not an}- statutory authority sufficient to legalise the use of these dangerous instruments and to save the defendants from their undoubted common law liability. ^5 •J . We have seen that the occupier of land is not vica- Duty to riously liable in respect of a fire caused by the negligence of a gjgg""™" stranger. Does he owe to his neighbour any duty at all in respect of such a fire ? Is he bound to use any care to pre- vent or extinguish it, or is he at liberty to leave it alone on the ground that it is not his fire and therefore not his busi- ness ? On this point there is no authority, but it would seem It ,'iupra, 8. eO (4). 15 The liability of railway companies for fires caused by the escape of spai^ks or cinders from locomotives is now governed by the Railway Fives Act, 1905. See a. 69, n. 2, supra. 250 NUISANCE. [chap. VII, Summary as to fire. difficult to maintain that any such obligation or liability exists. 6. Wo may summarise the conclusions which we have reached in this matter in the form of the following three rules: — (a) The occupier of land from which fire escapes is liable if the escape is due to any negligence on the part of himself, his servant, an independent contractor intrusted with the lighting or custody of fire, or probably any other person lawfully on the land with the occupier's permission. ^^ (b) He is not responsible for the act of a stranger, or for damage which is not caused by negligence on the part of any one.^' (f) He is probably under no duty to extinguish fires for the lighting of which he is not responsible. Term nuisance here used as including- disturbance of servitudes. Occupier liable for all § 71. The Incidence of Liability for Nuisances. 1. Hitherto we have confined our attention to the nature of the wrong of nuisance, and have postponed any inquiry into the incidence of liability for it. We have assumed throughout that the person liable in every case is the occujjier of the land on which the cause of the injury exists. This, however, although generally true, is not invariably so, nor is- it the whole truth, and we have now to deal with the matter more definitely. As the law on this point is identical with respect to nuisances strictly so called, and to the disturbancet of servitudes, we shall deal with these two injuries together in this connection, and shall in so doing use the term nuisance in its wide sense to include both. 2. Speaking generally, the occupier of ]3remises is liable for all nuisances which exist upon them during the period of his- occupancy. His dut}- is not meriely to refrain from positive 16 FilUter v. Fhippard (1847), 11 Q. B. 347; Slack v. ChristcUurch 'Finance Co., (1894) A. C. 48; Tarberville v. Stampe (1697), Ld. Raym. 264; 12 Mod. 152; BeauUeii v. Finglam, Y. B. 2 Henry IV. 18, pi. 5. 1' 14 G-eo. III. 0. 78, s. 86; TurbervUle v. Stampe (1697), 1 Ld. Eaym. 264; 12 ilod. 152; Bi",i,rie,i v. Finglam, Y. B. 2 Henry IV. 18, pi. 5. SECT. 7l] INCIDENCE OF LIABILITY. 251 acts of misfe-asanoe which, cause a iiuisanoe, but also to take care that a nuisuuoe does not come into existence, and to abate it if it does. " I have the control and management," savs Abbott, C. J.,1 "of all that belongs to my land or my house, and it is my fault if I do not so exercise my authority as to prevent injury to another." Thus, the tenant of a dwelling- house is responsible if it so falls into disrepair as to be a source of danger to the adjoining highway. ^ So in White v. Jiimescni^ the occupier of land was held liable for a nuisance caused by a lioensee through the burning of bricks upon the premises. 3. Similarly, an occupier is liable even foi' a continuing Even when nuisance which already existed on the premises when he first ^y^gj^ ^e entered into possession of them; for it is his duty either to becomes th e n • i> 1 • ■ PI • occupier. refrain from taking possession oi such premises or else to abate the nuisjance so soon as he becomes the occupier. Thus, in Broder v. Saillard,^ the tenant of a house was held liable for a continuing nuisaneie to the adjoining house caused by the percolation of water through an artificial mound of earth wliich existed on the demised premises at the oommencement of the tenancy. So in Brent \. Haddon-^ an action was suc- cessfully brought against the tenant of a mill for the continu- ance of a weir wrongfully erected before the commencement of his lease. So the tenant of a house which obstructs the plaintiff's lights is responsible therefor.'' So also with the purcliaser of land oil which a nuisanoe exists.^ So in Coup- land y. Hardinghawfi the occupier of a house was held liable for injuries caused by a dangerous unfenced area abutting on 1 Laurjher v. Pointer (1826), 5 B. & C. p. 576. 2 See Pretty v. BicTcmore (1873), L. R. 8 O. P. 401. 3 (1874), L. B. 18 Eq. 303. See also Odell v. Cleveland House, Lid. (1910), 102 L. T. 602, where the occupier of a house Was held liabltv for a nuisance caused by an independent contractor employed by him to demolish part of the premises. * (1876), 2 Oh. B. 692. 5 Cro. Jac. 555. 6 Eyppon V. Boulex, Cro. Jac. 373; Rosxvell v. Prior (1701), 12 Mod. 635. '' Peiiruddocle's case, 5 Co. Rep. 100b; JCoswell v. Prior (1701), 12 Mod. 635. 8 (1813), 3 Camp. 398. 26'2 NUISANCE. [chap. VII. When nuisance not created by occupier, he is not liable except for unreasonable failure to abate it. Liability of him who creates a nuisance on another's land. Liability of occupier after occupation ceases. tlie street, although the premises were in the same condition when his occupation commenced. ^ i" 4. When a nuisance has been created by the act of a tres- passer, or otlieirwis© without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, with knowledge or means of knowledge of its existence, he suffers it to continue without taking reason- ably prompt and efficient means for its abatement. ^^ 5. He who by an act of misfeasance creates a nuisance is liable for it, and for any continuance of it, notwithstanding the fact that it exists on land which is not in his occupation, and that he has therefore no power to put an end to it. Thus, if any building obstructs ancient lights, or interferes with any other servitude, the builder is liable noi less than the occupier of the land on which the building stands. ^^ More- over, this liability is a continuing one, extending not merely to the wrongful act itself, but to the continuance of the ^\'rongful state of tilings which results from it. It is no de- fence that the defendant has no power to abate or put an end to this state of things, for he ought not to have created it.^^ 6. Does a person who is inoccupation of premises on which there is a nuisance, and who is liable for that nuisance by ^ It has been said that no action will lie against an occupier for a mere failure to abate a nuisance which existed at the commencement of his occupation, until and unless he has been requested by the plain- tiff to abate it. Pemuddock's case, 5 Co. Rep. 100b. 1" This principle is not applicable so as to make the occupier of land liable for a subsidence which happens during the period of his occupancy by reason of an excavation or other withdrawal of support in the timei of his predecessor in title. There is here, it seems, no continuing' nuisance for which the occupier for the time being' can be held respon- sible; there is merely a completed act done by his predecessor in title, which becomes actionable a^ against that predecessor so soon as damage ensues. Hall v. Duke of Norfolh, (1900) 2 Oh. 493; Greenwell v. Low Beechburn Coal Co., (1897) 2 Q. B. 165. Infra, s. 80. 11 Barker v. Herbert, (1911) 2 K. B. 633; Att.-Gen. f. Tod Heatley, (1897) 1 Ch. 560. In the unsatisfactory case of Saxby v. Manchester 4- Sheffield Rhf. Co. (1869), L. E. 4 C. P. 198, it was apparently decided by the Court of Common IPleas that an occupier was under no obliga^ tion to abate u, nuisance caused by a predecessor in title or by a trespasser, but was bound merely to allow the nuisance to be abated by those who complained of it. Sed qii. 12 Thompson, v. Gibson (1841), 7 M. & W. 456; Dalton v. Angus (1881), 6 A. C. 740. IS Thotnpson v. Gibson (1841), 7 JI. & W. 456; Roswell v. Prior (1701), 12 Mod. 635. Si:CT. 72] LIABILITY OF A LANDLORD. 253 vii'tut of his oceupatioii, oease to be so liable when he ceases to occupy? Does a Meindor of land, for example, put off his responsibility along with his ownership? Or does the liability of a, tenant oease with the assignment, surrender, or determination of tb© lease? On this point there is little authority, but it is submitted that, except in the case of nuisance by positive misfeasance, liability dependent on occupation lasts only so long as the occupation on which it is based. The owner of a ruinous house ceases to be liable for it so soon as he hara sold it, just as the owner of a dangerous animal transfers his liability to the purchaser of it. In the case of positive misfeasance, however, this is not so. Liability of this kind is based not on occupancy, but on the doing of the act which creates the nuisance; and its con- tinuance, therefore, is independent of the ownership or occu- pation of the property on which the act is done. Thus, he who builds a house which obstructs ancient lights remains liable for the continuance of that obstruction, even after he has sold the property.^* § 72. Liability of a Landlord. 1. It is established law that the owner of premises is not Landlord as such liable for nuisances which exist upon them. Eespon- y"™™""'-*" "°'^ sibility for injuries of this kind is bafied not on ownership, but on possession. No action, therefore, will in general lie against a landlord for any nuisance existing on premises leased by him to a tenant, the sole remedy being against the tenant.^ There are, however, certain exceptional cases in which the landlord is responsible, though it is not easy, in the present unsatisfactory state of the authorities, to say definitely how far these exceptions extend, or on what principle tliey are based. 11 Eoswell V. Prior (1701), 12 Mod. 635. 1 Cheetham v. Eampson (1791), 4 T. R. 318; Russell v. Shenton (1842), 3 Q. B. 449; Pretty v. Bickmore (1873), L. R. 8 C. P. 401; Gwinnell v. Earner (1875), L. E. 10 O. P. 658. 254 NUISANCE. [chap. VII. Landlord liable if he creates a nuisance. Or if he authorises his tenant to create or continue a nuisance. 2. In the first place, it seems clearly settled that when the landlord has, prior to the lease, created a nuisance on the pre- mises by a positive act of misfeasance, for example, the erection of a building obstructing ancient lights (as opppsed . to a mere non-feasance, such as an omission to repair), he remains liable for the continuance of that nuisance, even after he has leased the property to a tenant. ^ Even a stranger is, as we have seen,^ similarly liable for a nuisance due to his misfeasance, though he is not in occupation of the premises at all; a fortiori the owner of the property. So also if he sells the property, instead of merely leasing it.* The liability of the landlord in such a case is concurrent with and not exclusive of that of the tenant. ^ 3. A second case in which the landlord is liable is when he has expressly or impliedly authorised his tenant to create or continue the nuisance. In Karris v. James^ a landlord was held liable for a nuisance caused by the act of his tenant in blasting operations and the burning of lime, on the ground that the land was let to him for that very purpose, which was necessarily a nuisance. " There can be no doubt," says Blackburn, J.,' " that where a person authorises and requires another to commit a nuisance, he is liable for that nuisance; and if the authority be given in the shape of a lease, he is not the less liable." If, however, the purpose for which the lease is granted is not such as necessarily to cause a nuisance, the landlord is not responsible merely because a nuisance is in fact created by the manner in which the tenant chooses to conduct his operations. On this principle, in Rich v. Baster- field^ it was held that a landlord was not responsible for a nuisance caused by the smoke of defective chimneys : it being possible for the tenant to avoid the commission of the nuisance — as, fox example, by the use of coke instead of 2 Soswell V. Prior (1701), 12 Mod. 635. s Thompson v. Gibson (1841), 7 M. & W. 456. * Eoswell V. Prior (1701), 12 Mod. 635. 5 Brent v. Haddon, Oro. Jac. 555; Ryppon v. Bowles, Cro. Jac. 373: Roswell V. Pricr (1701), 12 Mod. 635. « (1876), 45 L. J. Q. B. 545. ? Ibid. p. 546. 8 (1847), 4 C. B. 783. SECT. 72] LIABILITY OP A LANDLORD. 255 coal. 9 Nor in suoh a case is the landlord to be deeaned to authorise tho nuisance simply because, with knowledge of its existence, he refrains from exercising his right of deter- mining the tanancy.io 4. A third excoj^tion to the general rule of the landlord's Or if exemption from liability is said to exist when the nuisance to^au^ord^s is due to a breach by him of the covenants of the lease : for breach of example, when the premises aiie allowed by him to fall into a dangerous state of disrepair, and the duty of repair is cast upon him bj' the terms of the lease. This seems to have been the ground of decision in the unsatisfactory case of Payne v. Rogers ;^^ and the same doctrine has been re- peatedly recognised in subsequent judicial dicta, though there seems to be no other actual decision. ^^ It seems anomalous that the terms of the contract between landlord and tenant should operate inter alios, so as to de- termine the liability of either of them to third persons; and tlie rule, if sound at all, is probably to be explained as mei-ely a special application of the doctrine of authorisation alreadj- considered hj us — that is to say, a landlord who him- self undertakes the duty of repair and disregards it, must be taken to have authorised his tenant to leave the premises in a state of disrepair, and is to be held liable acoordingly. This is the view expressed by Keating, J., in the case of Pretty v. Bickmore :^^ "In order to render the landlord liable in a case of this sort, there must be some evidence that he authorised the continuance " (of the nuisance) — "for instance, that he retained the obligation to repair the 9 In Harris v. James (1876), 45 L. J. Q. B. 545, however, this case waa criticised in respect of the application of the general principle to the facts: a nuisance being the necessary result of the mode of user con- templated by the landlord — namely, the consumption of coal. Of. Sex V. Pedly (1834), 1 A. & E. 822. 10 Bowen v. Anderson, (1894) 1 Q. B. 164; Oandy v. Jubber (1864). 5 B. & S. 78; 9 B. & S. 15. 11 (1794), 2 H. Bl. 350. 12 See Rex v. Pedly (1834), 1 A. & E. 822; Todd v. Flight (I860), 9 O. B. (N. S.) 377; Pretty v. Bickmore (1873), L. B. 8 0. P. 401: Nelson v. Liverpool Brewery Co. (1877), 2 C. P. D. 311. 13 (1873), L. R. 8 C. P. p. 405. 25fi NUISANCE. [chap. VII. premises; that might be a circumstance tO' show that he authorised the continuance of the nuisance. "i* Or if 5 . The fourth and last case in which a landlord is or may with nuisance ^^ liable is wheu the nuisance, existed at the commencement on them. gf j.[j,g tenancy, and the jDremises were let without any cove- nant on the part of the tenant to repair or otherwise dis- continue or prevent the nuisance. This is apparently the result of the cases of Todd v. Flight^^ and Gandy v. Jubher,^^ as qualified and limited in their operation by the later cases of Pretty v. Bickmore^'' and Gioinnell v. Earner. 18 Here also the rule is probably to be regarded as merelj- an application of the rule as to authorisation. By letting the premises with the nuisance already existing, the landlord is to be deemed to have authorised its continu- ance, unless he has taken a covenant from the tenant binding him to discontinue it. The authorities on the whole matter are, however, in an unsatisfactory state. ^^ Summary. 6. The law as to the liability of a landlord may oe summed up as follows, subject, however, to the doubts that have already been expressed: The landlord of premises on which a nuisance exists is not liable therefor except in the following oases: [a) When he has himself created the nuisanoe by a positive act of misfeasance; 1* It is suggested in Payne v. Rogers (1794), 2 H. Bl. 350, that when the duty of repair is thus imposed by contract on the landlord, the tenajit is thereby exempted from any liability to strangers. But there is no authority for this, and it is contrary to principle. It is alsoi I to be observed that the landlord's contract to repair, tJiough it may make him liable to outsiders for a nuisance, does not make him liable for injuries suffered by persons entering upon the premises. Cavalier ' V. P(ype, (1906) A. C. 428; Cameron, v. Young, (1908) A. C. 176. 1= (1860), 9 0. B. (N. S.) 377. 16 (1864), 5 B. & S. 78; 9 B. & S. 15. " (1873), L. E. 8 C. P. 401. is (1875), L. E. 10 O. P. 658. 1^ It may be that if the landlord actually knows of the nuisanoe at the date of the letting, he is liable even if he takes a covenant from hisi tenant. Gwinnell v. Earner (1875), L. E. 10 C. P. p. 661, per Brett, J. However this may be, it is settled that the mere continuance of a determinable tenancy (for example, a tenancy from year to year, or a weekly tenancy) is not to be deemed a reletting so as to make the landlord responsible for nuisances which have come into existence since the beginning of the term. Bon-en v. Anderson, (1894) 1 Q. B. 165; Gandy v. Jubber, 9 B. & S. 15. SECT. 72] LIABILITY OF A LANDLORD. 257 (b) When he has authorised the creation or continuance of the nuisance by his tenant; (c) When the nuisance is due to a breach by the landlord of the covenants of tlie lease; {d) When he has let the premises with the nuisance already existing upon them, witliout taking any covenant from the tenant to pr6\ent or discontinue it.-o 20 As to the liability of a landlord for the dang^erous state of his premises towards persons entering upon them, see 3. 125, infra. 17 258 CHAPTEE VIII. INJURIES TO SERVITUDES. § 73. Kinds of Servitudes. Servitudes 1. A SERVITUDE is a right to the use or benefit of another "^ ■ person's land, unacoompanied by any right to the possession of it. Examples are rights of way, rights of light, rights to the support of land or buildings by the adjoining land or buildings, rights of shooting or fishing, and rights of ex- tracting minerals. The land or tenement upon which a ser\'i- tude is imposed is called the servient land or tenement. If, as often haiDpens, the servitude exists for the benefit of another piece of land, and therefore runs with this land into the hands of successive owners, this is termed the dominant land or tenement. A servitude which is thus attached to and runs with a dominant tenement is said to be appur- tenant to it. When tliere is no dominant tenement, the servitude is said to' be in gross. Servitude.s The essential difference between a lease of land and a ser- distinguished, vitude is that the lease gives a right to the exclusive posses- sion of the property, whereas a servitude does not.^ Thus, the question whether an .agreement for a lodging in another's house amounts to a lease of part of that house, or merelj' to a license to use it {i.e., a particular kind of servitude), depends on whether the lodger has or has not acquired by his agree- ment exclusive possession of that part of the house. ^ So if one agrees with a landowner to be allowed to jolaoe a hoarding for advertisements- on certain vacant land, the question whether this is a lease of the land on which the hoardina: ' Glenwood Lumber Co. v. Phillips, (1904) A. C. p. 408. 2 Wright v. Stcwert (1860), 2 B. & E. 721 ; Edge v. Strafford (1831), 1 C. & J. 391. SECr. 73] KINDS OF SERVITUDES. 269 stands, or a more servitude over it, is one -which depends upon the same eonsidea-ation. ■3. Servitudes are either public or private. A public Public and servitude is a rig-ht of user vested in the public at large or ^ervftudes. in some portion of it, such as the inhabitants of a certain .parish. The most imijortaiit example is a public highway — Le., a jjublic right of way over land. Another example is the right of navigation and fishing in a navigable river. Private servitudes, on the other hand, are those which are vested in I^articular individuals. 3. Private servitudes arc either legal or equitable. Legal Legal and ser\-itudes bind and run with the servient land at hue — that servitudes. is to say, they are protected from disturbance not merely against the grantor, but also against all subsequent owners and occupiers of the servient land, and against the world at large. Equitable servitudes, on the other hand, bind and run with the servient land only m equity — that is to say, they are not iDrotected 'against any subsequent purchaser of the servient land who 'acquires tlie property without notice of the existence of such equitable rights over it. 4. Legal servitudes ore of two kinds, distinguished as ease- Easements 1 „ , ^ , V 7 N T? • , , • "id profits. ments and pronts (or profits a prendre). Lquitable servi- tudes are also of two kinds, distinguished as licenses and restrictive contracts. Wc sliall consider these four classes in their order. § 74. Easements. 1 . An easement is a legal seawitude imposed upon one piece Easements of land for the benefit of another piece, running with each of '^ ^^ ■ these tenements at law, and not being the kind of servitude called a profit. Examples of easements are rights of way, rights of light, and rights of support. 2. The distinction between an 'oasem'ent and a profit is Easements that a profit entitles its owner to take away and appropriate distinguished some part of the produce or substance of the ser\ient land, whereas an easement entitles him mer'cly to the use or benefit of the land without any such appropriation. Thus, a right of 17(2) 260 INJUKIES TO SERVITUDES. [cHAP. VIII. No easements in gross. Positive and negative easements. Natural and acquired easements. way or of support is an easement, but a right oi! pasturage or of fishing or of mining is a profit. It is to be noted,, howevea-, that a right to take ivatcr is an easement and nob a profit.! 3. Every easement necessarily involves both a dominant and a servient tenement — tlliat is to say, an easement is always appurtenant and never in gross. ^ It can only exist for tlie benefit of another piece of land, so that the benefit of it runs with that land into the hands of successive owners. A right to enter upon or cross the land of another, for example, which is personal and not connected with the occu- pation and use of some other adjoining land, cannot amount to a legal easement, though it may, as we shall see, amount to a valid equitable 'servitude. A profit, on the contrary, may be either' in gross or appurtenant, ^ and this is the chief practical importance of the distinction between it and an easement. A personal right of fishing or mining on another's land may be a good Legal servitude, but a personal right of way or entry is at the most an equitable one. 4. Easem^ents are either positive or negative. A positive easement is a right to enter upon the servient land or to: do some other act in relation thereto whioh would otherwise be illegal. A negative easement is a right that the owner of the servient land shall refrain from doing some act which he would otherwise be entitled to do — e.g., the erection of a building which would obstruct his neighbour's lights. In other words, the obligation of the owner of the servient land consists either in patiendo (i.e., in suffering the dominant owner to do an act on or in relation to the servient land) or in non faciendo (i.e., in refraining from doing some act on the servient land). In the first case the servitude is positive, and in the sedond negative. 5. Easements are either natural or acquired. Natural easements are those which are naturally appurtenant to land, and therefore require no special mode ocE acquisition. Thus, 1 Sace V. Ward (1855), 4 E. & B. 702. 2 Ackroyd v. Smith (1850), 10 0. B. 164; Rangeley v. Midland, My. Co. (1868), L. R. 3 Ch. at p. 310. 3 Fitzgerald v. Firbank, (1897) 2 Ch. 96. SECT. 74] EASEMENTS. 261 tlie right of land, imeuoumbered by buildings, to. the sujiport of the adjoining land is a natural easement; but the right of a building to the support of adjoining land or buildings is an acquired easement. The term easem'ent is sometimes limited to the second of these two classes, but, as natural easements are essentially of the same nature as tha^e which are aa- quired, this limitation of the term seems inadvisable. 6. Easements are ci^eated by deed, prescription or grant How created. implied in law {e.g., a way of necessity). A mere agreement not under seal ci-eates at the most an equitable servitude, not a legal easement. This is so whatevei- is the intended dura- tion of the right in question. A mere agreement is as power- less to create a legal right of way for the term of a j^ear as to create such a right in perpetuity.'* 7 It is not possible to create new kinds of easements not New kinds of already known to the law. The class of these rights is closed, oa^'otb*e and is not capable of indefinite increase at the will and created, caprioe of an owner of land.^ The chief recognised ease- ments are (1) rights of way, (2) rights of entry for ajiy purpose relating to the dominant land,^ (3) rights in respect of the support of land and buildings, (4) rights of light and air, (5) rights in respect of water, (6) rights to do some act which would otherwise amount to a nuisance to the servient land,'' (7) rights of placing or keeping things on the servient land.^ There can be no easement consisting in a right to an un- interrupted A'iew from the windows of a house,^ or in a * Hewlins v. Shippam (1826), 5 B. & O. 221; Bolfoi-d v. Bailey (1850), 13 Q. B. p. 446. B Aohroyd v. Smith (1850), 10 C. B. 164; Bill v. Tupper (1863), 2 H. & C. 121; Keppel v. Bailey (1834), 2 M. & K. at p. 535, >ery titles to servitudes.* § .76. Equitable Servitudes: Licenses. 1 . A license is an agreement (not amounting to the grant License,-! of a legal easement or profit) that it shall be lawful for the licensee to enter upon the land of the licensor, or to do some other act in relation thereto which would otherwise be illegal. A license may be either to do something on the land of the licensor, or to do something on the land of the licensee him- self. Examples of the, former kind are an agreement for board and lodging (not amounting to a demise), the purchase of a ticket for a seat in a theatre, and an agreement for a right to place advertisements on another's land or buildings. Examples of the second kind of license are an agreement for liberty to obstruct an ancient window, or to let down the surface of the adjoining land by excavation, or to carry on some business which would otherwise amount to a nuisance. A license may or may not be exclusive — I.e., it may or n\n.y not confer a monopoly upon the licensee to do the act so permitted. In either case it may be granted either in per- petuity, or for a fixed period, or merely at the will of the licensor. 2. Nothing is to be classed as a license which amounts to Lioenaea a valid legal easement or profit, and there are at least three ^f^^f^^ reasons which may prevent the existence of such an easement menta and or profit so as to reduce the right claimed to the level of a ^ mere license or equitable servitude:-- (fl) An imperfect mode of creation. A legal easement or profit must be created by deed: therefore a mere 3 Soe s. 95. ' ». 74 (10). 268 INJURIES TO SERVITUDES. [CHAP. VIII. agreement not under seal can create merely a license or other equitable servitude. (6) The absence of a dominant tenement. Every legal easement must be appurtenant to a dominant tene- ment: therefore if a right is created (even by deed) which is merely in gross or personal, it amounts at the most (unless it is a profit, which does not require to be appurtenant) to a mere license or equitable servitude — e.g., a grant even under seal of the right to put advertisements on the grantor's jDropertj-. (c) nights of a kind not recognised at laiv. We have seen that the class of legal easements is closed and incapable of expansion by the addition of new forms at the wiU and caprice of a grantor: there- fore anj' right falling outside this class amounts at the most, even though appurtenant and created by deed, to a merely equitable servitude — the right, for exanifjle, to an uninterrupted view or the right of privacy. 1 License runs 3. Since a license is not a legal servitude, it does not run with the ser\dent land at law so as to bind all subsequent owners of it. At law, indeed, it is a mere agreement, which binds no one save the grantor himself. Such an agreement, hoAvever, if of such a nature as to be specifically enforceable, amounts to a good equitable servitude — that is to say, it binds and runs with the land in equity so as to be enforceable not merely against tlie grantor, but also against all subse- quent OAvners and occupiers of the land except purchasers for value without notice of 'any such equitable right. Thus, in Mor eland v. Richardscm? a right of burial in a cemetery, acquired bj- agreement with the owners of the cemetery, was enforced by injunction against a subsequent mortgagee of the property, who had taken his mortgage with notice of the right in question. Such a right of burial is clearly not a legal easement, even though granted by deed, because it is in gross; yet it was held to constitute a good 1 Supra, s. 74 (7). - (1855), 25 L. J. Ch. 883. with tlie land in equity, SECT. 76] LICENSES. 269 equitable servitude wliicli ran with the laud. So in liervetj V. Sniifh^ an agreement was made by two adjoining proprie- tors tliat one of them sliould liave the right to discharge smoke into one of the chimneys in the wall of the other's house, and this agu'eement was enforced by injunction against a subsequent purchaser (with oonsti'uctive notice) of the servient property. This was not a legal easement for want of a deed, but it was a good equitable sorN'itude. In the case of the Duke of Devonshire v. Eglin^ the same principle was applied to a parol agreement for the i-ight to have a watercourse upon the servient land.^ 4. A licensee may protect his right to the exercise of the Remedies of license by an action in liis own name for an injunction, if the injunction, agreement is of such a nature that specific performance of it will be decreed in accordance with the rules of equity in that behaK; and an injunction may be so obtained against the licensor himself, or against any subsequent owner or occupier of the servient land except a purchaser for value "without notice, or against a mere stranger.^ 5 . A licensee has an action for damages against the licensor Damages as for any disturbance of the license committed by liim. For licensor, although a license does not confer ,aiiy legal estate or interest in the land which is subject theoreto, it nevertheless amounts to a valid contract betwieen licensor and licensee, and is en- forceable at law in the ordinary way of an aotion for damages for breach of contract.^ But since the Koensee has no legal estate or interest in the .^'i^- ;i« servient land, he has, it would seem, no remedy at law against strangers. any subsequent owner or occupier or any stranger for a dis- 3 (1856), 22 Beav. 299. * (1851), 14 Beav. 530. 5 For a license by way of an eqmtable profit, see Zoicre v. Adnins, (1901) 2 Ch. 598 — a, purchase iiot under seal of a right of shooting. 6 DuJee of Devonshire v. Eglin (1851), 14 Beav. 530; Moreland v. Richardson (1855), 25 L. J. Ch. 883; Eervey v. Smith (1856), 22 Beav. 299. Cf. McManus v. Cooke (1887), 35 Ch. D. 681, which, however, is a case of restrictive contract, not of license; but the same principle \a applicable to each. That an injunction may be obtained against a mere stranger, not an assignee of the servient land, appears from Mander v. Falche, (1891) 2 Ch. 554. 7 Kerrison v. Smith, (1897) 2 Q. B. 445; Wells v. Kingston-on-Eidl (1876), L. E. 10 O. P. 402; Wilson v. Taverner, (1901) 1 Ch. 578; Lowe v. Adams, (1901) 2 Ch. 598. 270 INJURIES TO SEKVITUDliS. [oHAP. VIII. Licenses revocable at will. Wood f . Leadbitter. turbance of his right. This was deoided in the case of Kill V. Tupper,^ in which the plaintiff had acquired bv grant under the seal of a canal company an exclusive right of keeping pleasure-boats for liire upon the canal. He sued at law for damages a stranger who infringed this monopoly, and it was held that ho had no such cause of action. " This grant," it is said,^ "merely operates as a license or covenant on the part of the grantors, and is binding on them aa but gives him no right any infringement of the between them&el\-os and the grantee for of action in his own name supposed exclusive right." This absence of a legal I'emedy by way of damages available by a licensee against a stranger is a \erj anomalous feature of our law. It seems curious that he who, by agreement with the occupier of a building, lias expended money in painting adA-Tertisements upon one of its walls, should have no legal remedy against a third j)erson who wilfully defaces them. The whole law on this matter requires more consideration than it has yet received. i° 6. At common law a lioense was revocable at ■will by the licensor, even though granted for a fixed term, and was therefore no justification for ,any act done in the exercise of it after revocation. This is known as the rule in Wood v. LeadbitterM In tliis case the pilaintiff bought a ticket for admission to the stand of a racecourse, entitling him to remain there throughout the continuanoe of the races. In breach of the agreement thus entered into between him and 8 (1863), 2 H. & C. 121. 9 Ibid. p. 127. 1" It has been suggested (Smith's Leading Cases, I. 359, llth ed.) that there is at least one important class of licenses in which the rule in Hill v. Tapper has no application — viz., those in which the lioense is of such a nature that it would, if created by deed or pre- scription, amount to a legal easement or profit (_e.g., a right of way or of light created by written agreement only). "It is submitted that wherever the right claimed is one which may by law be made the subject-matter of property, then enjoyment of such a right, though only under a license revocable by the grantor, is as against a wrongdoer a sufficient title to enable the licensee to maintain an action upon it." (See supra, s. 74 (10).) It is also a question fit to be considered whether the power of Courts of equity to gi-ant an injunction to a licensee, taken in conjunction with its power to grant damages in lieu of an injunction, doeg not exclude the rule in Hill v. Tupper in all cases in which an injunction can be granted. " (1845), 13 M. & W. 838. SECT. 76] hlCENSliS. 271 the occupiers of the racecourse, they ordered him to k^iivc the premises while the races were going on, and on his refusal to leave they ordered |and procured his forcible expulsion by their servant, the defendant. An action of trespass for this assault Mas thereupon brought by him against the de- fendant, M'ho pleaded that the plaintiff was a trespasser and had been ejected by order of the occupiers of the premises, to which plea the plaintiff I'^plied that he was on the pre- mises by the leave and license of the occupiei-s. On these pleadings and facts it was held by the Court of Exchequer that tlie action would not lie. Although the license had been revoked improperly and in breach of contract, its revocation was none the less effectual. The license was terminated, and the plaintiff Mas a trespasser and could not sue in tort for his expulsion by order of the occupiers. 7 It is to be noticed as to this case that the action wasi Damages for one of tort against the servant of the licensor, and not one for \ evocation, breach of contract against the licensor himself. It is well, settled that an action of this latter description m ill lie in such a case. He who is ejected from land by the licensor in breach of his license, or is otherwise disturbed by the licensor in the exercise of it, has even at common law, and notwith- standing Wood V. Leadbitter, a good cause of action in contract. 12 If, hoMever, the licensee insists, notwithstanding the revocation of his license (even though it is thus prema- ture and wrongful), in entering or remaining on the land or in otherwise exercising his license, he becomes at common law^ a trespasser or other vsrongdoer, and liable in an action accordingly at the suit of the licensor. The rule is an illus- tration of the difference between a legal power to do a thing effectively and a legal right or liberty to do it lawfully. A licensor has at oomnaon law the power to revoke the license at any time, but be has no right to revoke it before the ex- piration of the term. 8. Since the fusion of law and equity by the Judicature How far the Act, however, the rule in Wood v. Leadbitter has to a very v. Leadbitter 12 Kerrison v. Smith, (1897) 2 Q. B. 445, and the other oases cited supra, a. 76 (5), n. 7. 272 INJURIES TO SERVITUDES. [CHAP. VIII. ia force since large extent, even if not wbolly, oeased to be in force. The and equity. reason of this change is that a lioenoe granted for a fixed period is in all ordinary cases speoifically enforceable — an injunction being obtainable to prevent its premature revo- cation. A licensee, therefore, cannot be now treated as a trespasser because of doing an act which the licens*^ may be compelled by injunction to allow him to do. Accord- ingly, in Hurst \. Picture Theatres, Limit ed,^^ it was held by a majority of the Court of Appeal that the plaintiff, who had purchased from the defendants a ticket entitling him to occupy a seat at an entertainment, had a good cause of action in tort for the act of the defendants in forcibly removing him from the building under the mistaken belief that he had wrongfuUy obtained admission without pay- ment; and the plaintiff recovered substantial damages accordingly as for assault, instead of the merely no^minal damages which would have been recoverable in an action for breach of contract. The facts of this case are indis- tinguishable from those of Wood v. Leadbitter itself, yet the decision was to the opposite effect. If, therefore, the earlier decision is now of any authority at all, it applieis only to cases in wliicih the license is of such a nature that an injunction against its premature revocation could not be granted in conformity with the rules of equity in that behalf — so that the license is revocable at will in equity as well as at law. If a license is not fit to be specifically enforced, neither is it fit to be exercised in defiance of the will of the licensor, and the sole remedy of the licensee ought to be a claim for damages for the breach of contract involved in its premature revocation. It does not clearly appear, however, from the observations of the Court of Appeal in Hurst v. Picture Theatres, Limited,^-^ whether even to this extent the rule in Wood v. Leadbitte?' is to^ be regarded as still in force. 13 (1915) 1 K. B. 1. See also Lowe v. Adams, (1901) 2 Ch. p. 600; Jones V. Earl of TanhervBle^ (1909) 2 Oh. 440; Butler v. Manchester Rly. Go. (1888), 21 Q. B. D. 207. 1* (1915) 1 K. B. 1. SECT. 7ti] LICENSES. 273 Assuming that Wood v. Leadbitter is not wholly obso- Rights of lote, and still possesses some such residuary application as revocation. haJ5 been suggested, it is to be obsei'\ed that even at common law it was subject bo the following limitations and quali- fications: (rt) Even after the revocation of a license the licensee must be allowed a reasonable time in which to enter or remain on the land for the purpose of removing any property which he may liave brought there in exercise of the license. ^^ (h) The premature revocation of a license imposes no Obligationa obligation upon the licensee to do any act for the purpose of revocatfon.°° preventing the continuing effect upon the servient land of any act which he may have lawfully done before the revocation: for example, if a permanent license is given to obstruct an ancient window by building a house, the licensee on revoca- tion is not bound to pull the house down.i'^ (c) '■ A license to enter on a man's property is prima facie License revocable, but is irrevocable even at law if coupled with or coupled with granted in aid of a legal interest conferred on the purchaser; ^^ interest, and the interest so conferred may be a purely chattel interest or an interest in realty. If A sells to B felled timber Ij'ing on A's lands, on the terms that B may enter and carry it away, the license conferred is an irrevocable license, because it is coupled with and granted in aid of the legal property in the timber which the contract of sale confers on B.''^'^ § 77. Equitable Servitudes: Restrictive Contracts. 1. A restrictive contract is an agreement between the Restrictive owners of two pieces of land that one of them will refrain ^i^h land in from doing on his land some act which he otherwise would equity, have a right to do, and which touches and concerns the land of the other. Such an agreement creates an equitable servi- 15 Cornish v. Stubbs (1870), L. R. 5 0. P. 334; Mellor v. Watkim (1874), L. E. 9 Q. B. 400. 16 Liggins v. Inge (1831), 7 Bing. 682. " Jones V. Earl of TankervUle, (1909) 2 Oh. p. 442; Wood v. ManJey (1839), 11 Ad. & El. 34. S. 18 274 INJURIES TO SKRVITUDES. [chap. VIII. Tulk r. Moxhay. Restrictive contracts distinguished from ease- ments. tude which runs with the servient hmd in equit}^ though not at law. 2. This rule — called the rule in Tulk v. Moxhay^ — pertains to the law of contracts rather than to that of torts, but it is so intimately connected with the law of easements, profits, and licenses that it is necessary to mention it here for the sake of completeness. Just as a license is a permissive contract allowing some act otherwise illegal to be done in I'elation to the land of another, so a restrictive contract pre- vents some act from being done in relation to the land of another which would otherwise be legal. Each kind of con- tract creates an equitable servitude which runs with and binds the land. The servitude created by a license or permissive contract corresponds in equity to a positive easement at law; while the servitude created by a restrictive contract corre- sponds to a negative easement at law. Thus, an agreement not under seal allowing a beam of the grantee's house to rest upon the wall of the grantor's house is a license, and creates an equitable positive easement, corresponding to a legal ease- ment of support. On the other hand, an agreement not under seal that the grantor will not obstruct the windows of the grantee's house is a restrictive contract, which creates an equitable negative easement corresponding to the legal ease- ment of light. 2 3. There are at least two reasons which may prevent a restrictive contract from creating a valid negative easement at law: — (a) It may not be under seal, and will in that case consti- tute an equitable servitude only:^ {h) It may fall in respect of its contents outside the limited class of legal easements. Thus, although a grant by deed of a right not to have the access of light to a window interrupted creates a good legal easement, a similar grant not to have the view from 1 (1848), 2 Ph. 774. 2 McManus v. Coolce (1887), 35 Ch. D. 681. 3 Ibid. SECT. 77] RESTRICTIVE CONTRACTS. 275 a windoAv interrupted creates a merely equitable serA'itude.* 4. In order to constitute an equitable servitude in accord- Rule does not . , , , . , extend to ance witli the rule in 1 idk v. Moxhay, a contract must be positive purely negative or restrictive; it must not be a.n affirmative obligations, contract binding the servient owner to au act instead of to a mere non-feasance. A contract to build is purely personal; but a contract not to build may run with the land 'as an equitable servitude. An equitable servitude cannot impose a positive obligation any more than a legal servitude can.^ 5. The restrictive covenant must touch and concern some Dominant dominant tenement of the person entitled to the benefit of req^Sed. the covenant. There cannot be an equitable easement in gross anj- more than a legal easement in gross. ^ 6. A restrictive contract is enforceable by an action for Remedies. damages against the contractor himself, and by an action for an injunction either against the contractor, or against any subsequent owner or occupier of the servient land except a purchaser for value without notice, or against a mere stranger.^ 1 Zeech v. Schweder (1874), L. R. 9 Ch. 463. ^ Haywood V. Brunswick Building Society (1881), 8 y. is. D. 403; London # S. W. RaU. Co. v. &omm (1881), 20 Ch. D. 562. 6 London County Council v. Allen, (l914) 3 K. B. 642. ' Mander y. Falche, (1891) 2 Oh. 554. As to the running of such a contract with the dominant tenement, see Sogers v. Bosegood, (1900) 2 Oh. 388. 18(2) 276 CHAPTEE IX. INJURIES TO SERVITUDES — {continued). In the preceding chapter we have dealt with servitudes in general, and it is now necessary tb consider the law with regard to certain particular classes of them which arc of suificient importance to call for special examination. These are the following: (1) Rights of Support, (2) Eights of Light, (3) Rights of Water, and (4) Rights of Way. Natui-al easement of support to land. Not for buildinsrs. Subjacent and lateral support. § 78. The Right of Support. 1 . Every piece of land has a natural easement of support from the adjoining land, and also from subjacent land when the surface and substratum belong to different persons. 2. This rule relates only to the support of land in its natural condition — i.e., unburdened with buildings and un- weakened by excavations. If additional support is needed because of any such alteration in the natural condition of the land, a right to it must be acquired by grant, prescription,, or otherwise, and is not a natural incident of property. ^ 3. The right of subjacent as opposed to lateral support comes into existence whenever the ownership of the surface becomes separated in any manner from that of the underlying strata — e.g., when coal or other mineral is granted with a reservation of the surface. The right of support in such cases is natural, and not dependent on any express or implied grant or reservation, and therefore exists in whatever way the separation between surface and subsoil has come about. 2 1 Dalton V. Angus (1881), 6 A. 0. 740; Corporation of Birmingham . Allen (1877), 6 Oh. D. 284. 2 Humphries \. Brogden (1850), 12 Q. B. 739. SECT. 78] THE RIGHT OF SUPPORT. 277 ■1. In any ease the natural right of lateral or subjacent Surrender of support may be destroyed by its express surrender. Thus, sirpport. a grant of the right to take coal or other minerals may include permission to let down the surface. Whether the easement of support has or has not been thus surrendered is a question of construction, depending on the particular facts of the case: and in the absence of any expression or necessary implica- tion of a contrary intent the easement continues to exist notwithstanding the grant of a right to extract minerals. ^ 5. A building has no natural easement of support either Acquired from the adjoining land or from other buildings. He who ','„!f"OTtto"* erect? a building in such a fashion that it depends for support buildings upon the adjoining land or building of another person does not thereb}- obtain any right to that support, and cannot complain of its withdrawal, even if the result is the destruc- tion of his own building.* 6. It is possible that a building has no natural right even Subjacent ,., . ° - , .support of to subjacent support, but this has never been decided.^ Ihe buildings. question is of little importance, because in all ordinary cases it is impossible to injure a building by the withdrawal of sub- Z^> .\iL i^^ jacent support without committing an actionable infringe- ^^'u n-o ''lu. ment of the natural right of support possessed by the land |,^^^ ^. '^J'^l _ itself on which the building stands; and in such a case damages can be recovered for the building also.^ 7 A right of support for a building can be acquired by How right of express or implied gi-ant or by open enjoyment tor twenty acquired, years.'' Thus, the owner of a house, who sells or lets it and reserves adjoining land for himself, does thereby impliedly gi'ant an easement of support from that land. So also if 3 Bavies v. Treharne (1881), 6 A. O. 460; Duke of Buccleuch v. Wake- field (1869), L. E. 4 H. L. 377; Love v. Bell (1884), 9 A. O. 286; Butterknoivle Colliery Co. v. Bishop Auckland Co-operalice Co., (1906) A. O. 305; Butterley Co. v. New Huckitall Colliery Co., (1909) 1 Ch. 37; Beard v. Moira Colliery Co., (1915) 1 Ch. 257. * Partridge v. Scott (1838), 3 M. & W. 220; Union Lighterage v. London Graving Dock Co., (1902) 2 Ch. 557; Dalton v. Angus (1881), 6 A. C. 740. 5 See Mogers v. Taylor (1858), 2 H. & N. 828. 6 Infra, s. 79 (7). 7 Dalton V. Angus (1881), 6 A. O. 740; Lemaitre v. Davis (1881), 19 Ch. D. 281. 278 INJURIES TO SERVITUDES. fcHAP. IX. land is sold for building purposes, or if two houses mutually dependent on each other become severed in ownership. So when the upper storeys of a house become severed in owner- shijj from the lower, there is an implied grant or reservation of a right of subjacent support. A full account of this matter, however, pertains to the law of property, and not to that of torts. ^ Disturbanct of right of support. Actual essential . § 79. Disturbance of the Right of Support. 1 . It is an actionable wrong to withdraw the support to which land or buildings are entitled, and thereby wilfully or negligently to cause a subsidence of the land or structural injury to the buildings. 2 . No action for damages lies until and unless actual sub- sidence or other damage has occurred. The wrong consists not in withdrawing the support which the dominant tenement is receiving, but in doing damage by means of such a with- drawal. ^ The servient owner, therefore, is at liberty to pull down his house, or to excavate his land, or to extract minerals from it, so long as by artificial support or otherwise he does in fact prevent any harm accruing to the plaintiff; and the plaintiff, in the absence of any express grant to that effect has no right to insist on retaining the particular mode or measure of support which he has in fact hitherto enjoyed. From this it follows that when, as often happens, there is an interval of time (it may be one of years) between the with- drawal of support and the accrual of damage, the Statute of Limitations runs from the later date and not from the ear'lier.- On the same principle, as often as any fresh damage ensues from the original act of withdrawing support a new cause of action arises. ^ The measure of damages in any such 8 See Grosvenor Hotel Co. v. Hamilton, (1894) 2 Q. B. 836; Sigby v. Bennett (1882), 21 Oh. D. 559; Siddons v. Short (1877), 2 C. P. D. 572; Union Lighterage Go. v. London Graving Lock Co., (1902) 2 Ch. 557; Balton V. Angus (1881), 6 A. O. p. 792; Humphries v. Brogden (1850), 12 Q. B. p. 747. 1 Backhouse v. Bonomi (1861), 9 H. L. O. 503. 2 Ibid. 3 JDarley Main Colliery Co. v. Mitchell (1886), 11 A. C. 127. SECT. 79] DISTURBANCE OK SUPPORT. 279 action is the extent of the damage actually suffered at the date of the action, and no account is to be taken, by way of anticipation, of any future damage which may result from the same cause, or even of any depreciation in the saleable value of the plaintiff's property due to the fear of further damage.* Probably the mere subsidence of land is in itself sufficient damage to found an action, even though no pecuniary loss can be shown to have resulted from it.^ 3. The easement of support is completely predominant over tlie right of the servient owner to use his property ; and if he cannot rebuild his house or extract his minerals, however cai'efully or skilfully, without doing damage to the dominant tenement, he is not at liberty to perform these operations a( all.'' On the other hand, the servient owner is liable solely for misfeasance, and not for the mere non-feasance of failing to keep the servient building in repair." 4 . There is no sufficient reason for supposing that the Conditions of infringement of a right of support is any exception to the general principle that liability for a tort depicnds on the existence of wrongful intent or culpable negligence. Damage due to inevitable accident is in this case, as in most Inevitable others, no sufficient ground of responsibility. In Hughes v. FercivaV' Lord Blackburn, speaking of the defendant's duty in carrying out structural alterations which involved inter- ference with a party wall, says, "I do not think that duty went so far as to require him absoluteh' to provide that no damage should come to the plaintiff's wall from the use lio thus made of it; but I think that the duty went so far as to require him to see that reasonable skill and care were exercised. "3 It is true that in most of such cases res ipsa i West Leigh ColUerij Co. v. T unniHi-jJ e % Hampson, (1908) A. 0. 27; see s. 37 (6), supra. 3 Att.-Gen. v. Conduit Colliery Co., (1895) 1 Q. B. p. 311; Mitchell V. Barley Main Colliery Go. (1884), ll Q. B. D. p. 137. See, however, timith V. Thacherah (1866), L. R. 1 0. P. 564, to the contrary. 6 Rext V. Gill (1872), 7 Oh. 699; Humphries v. Brogden (1850), 12 Q. B.p. 745. ' Colehech V. Girdlers' Co. (1876), 1 Q. B. D. 234. 8 (1883), 8 A. C. p. 446. 9 Lord Fitzgerald at p. 455 expresses a similar opinion. 280 INJURIES TO SERVITUDES. [CHAP. IX. Occupier's liability for negligence of independent contractor. No right to support from underground water. loquitur and the mere fact that damage has been actually done is sufficient proof that due care and skill were not devoted to the avoidance of it. But in exceptional cases this is not so; as when temporary support afforded to a house during the rebuilding of adjoining premises is destroyed by hre, earthquake, or other inevitable accident; and in such cases it is submitted that the servient owner is under no liability for the resulting damage. i" 5. Nevertheless an occupier of land, or any other person, who authorises or procures anything to be done which is of such a nature that, if not done with due care, it will interfere with an easement of support, is vicariously liable for any neg'ligence in the doing of it, even though it is done by an independent contractor and not by a servant. It has been held in several cases that the authorisation of any withdrawal of support is an exception to the general rule that a principal, though liable for the negligence of his servant, is not liable for that of an independent contractor. Therefore, if a ser- vient owner employs a contractor to pull down his house, and the contractor is guilty of negligence in doing so, whereby damage accrues to the dominant tenement, the servient owner is responsible for it, as well as the contractor himself .^^ If the negligence is that of a sub-contractor, all three will be equally and jointly responsible. G. It is not actionable to cause a subsidence of land or structural injury to buildings by the withdrawal of the support of underground water by draining, pumping, or otherwise, unless a right to such support has been acquired 1" It is true, indeed, that there are dicta in certain cases to the effect that no amount of care or skill will excuse a defendant who does harm by withdrawing support from his neighbour. See Broion v. Robins (1859), 4 H. & N. p. 193; Hunt v. Peahe (1860), 29 L. J. Oh. p. 787. These dicta, however, must be understood as meaning merely that it is no defence that the building or mining operations of the defendant were in themselves carefully and skilfully performed, if, having regard to the danger thereby incurred by the plaintiff, it was a negligent act to undertake them at all. If the servient owner cannot mine or robuUd, hovj-soever carefully, without interfering with the i-ight of support, he must not do these things at all. 11 Bower v. Prnte (1876)^ 1 Q. B. D. 321; Hughes v. Percival (1883), 8 A. O. 443; Balton v. Angus (1881), 6 A. C. 740; Lemaitre v. Baxms (1881), 19 Oh. D. 281. SECT. 79] DISTUKBANCE OF SUPPORT. 281 by express or implied grant. The natural right to the lateral - or subjacent support of other laud does not extend to the ; support of underground water. i- It need not be doubted, however, that a right to the support of such water may be ■obtained by express or implied grant: so that, for example, he who sells a house dependent for its stability on subjacent water may in certain circumstances be precluded by his own implied grant from so dealing with adjoining land as to destroj' this support. Quicksand, running silt, and other semi-fluid substances are to be deemed land and not water within the meaning of this rule, and any withdrawal of the support afforded by them is actionable. ^^ 7 Even when no easement of support has been acquired Measure of b}' a building, the damages recoverable in an action for '*'"'"'^®^- causing the subsidence of the land itself will include any consequential damage to the building, unless the subsidence has been caused by the additional pressure of the building. ^-^ 8. Although, as against the lawful owner or occupier of Disturbauce the adjoining land, he who complains that he has suffered gupport." " damage through the withdrawal of su^Dport must prove that he has a lawful easement of support, nevertheless as against a mere stranger no such proof is requisite. The mere de facto enjoyment of support is a sufficient title adversus extraneos^^ This rule is analogous to the rule that the mere possession of land or chattels amounts to a valid title of ownership as against those who cannot show a better title in themselves. Notwithstanding certain older dicta to the contrary, it may be taken as established law that in the absence of any 12 Poppleivell V. Hodkinson (1869), L. E. 4 Ex. 248. This seems to be simply a logical extension of Chasetnore v. Richards (1859), 7 H. L. C. 349. 13 Jordeson v. Sutton Gas Co., (1899) 2 Ch. 217; Trinidad Asphalt Co. V. Ambard, (1899) A. C. 594. In Jordeson's case, at p. 239, Lindley, 31. R., expresses doubts as to the principle of Poppleivell v. Hodkinscm, L. R. 4 Ex. 248, but as this was the unanimous decision of the Ex-\ chequer Chamber, these doubts must be taken to relate to the truio extent of the principle {e.g., its exclusion by impUed grant) and not to the correctness of the decision itself. 1* Brown v. Sobins (1859), 4 H. & N. 186; Stroyan v. Knowles (1861), ■6 H. & N. 454. 15 Jeffries v. Williams (1850), 5 Ex. 792; Bibby v. Carter (1859), 4 H. & N. 153. See supra, s. 74 (10). 282 INJURIES TO SERVITUDES. [CHAP. IX. Change of ownership between withdrawal of support and resulting subsidence. lawfully acquired easement of support the owner or occupier of la,nd, as opposed to a mere stranger, is under no liability foi' causing structural damage to buildings on the adjoining land by withdrawing the support which they de facto receive, and that this is so even though the damage is done wilfully or negligentlj- In Dalton v. Angus^^ Lord Penzance says, " It is the law, I believe I may say without question, that at any time within twenty years after the house is built, the owner of the adjacent soil may with perfect legality dig that soil away and allow his neighbour's house, if supported by it, to fall in ruins to the ground. "^'^ 9. Inasmuch as a considerable interval, possibly one of many years, may elapse between the excavation of land and the happening of resulting subsidence, it must often be the case that during that interval a change has taken phico in the ownership or occupation of the servient land on which the excavation exists. Who, in such a case, is liable for the accru- ing damage ? Will an action lie against the former owner or occupier by whom the excavation was made, or against the present owner or occupier at the time of the subsidence, or are both of those persons responsible ? Whatever may be the law with respect to tlie liability of the owner or occupier for the time being, it seems clear that he who originally made the excavation remains liable for the results of it, even though when those results occur he no longer owns or occupies the land. His liability is based on the fact that he has by his own misfeasance interfered with the support of another's land without taking adequate precautions against resulting damage, and not on the fact of his occupancy of the servient land. His liability would equally have existed had he never at any time been in occupation of that land (for example, if he had been a contractor employed in building operations)!* 16 (1881), 6 A. O. p. 804. 17 See also Wi/afi v. Harrison (1832), 3 B. & Ad. 871; Peyton v. Mayor of Zondon (1829), 9 B. & O. 725; Gay ford v. Nichols (1854), 9 Ex. 702. In Trower v. Chadwiolc (1836), 3 Bing-. N. C. 334, however, the point was left open by the Oourt of Exchequer Chamber. 18 Hvqhes V. Percival (1883), 8 A. O. 443; Tliomijson v.' eibson (1841), 7 M. & W, 456. SECT. 79] DltiTUKBANCE OF SUPPORT. 283 aud therefore cannot be put an end to by the termination of his occupancy Xor is it saiy defence to him that the true cause of the subsidence is the failure of the present occupier of the servient land to maintain in good repair the artihcial support which has been substituted for the natural support originallj- afforded by that land. Even if the present occu- pier is under any duty so to do, his breach of that duty is a matter for which the former occupier will be liable; for he who interferes with the right of support cannot escape responsibility for the consequences by delegating to another the duty of preventing them.i^ If, however, the former occupier is dead before the resulting subsidence occui-s, the remedy against his estate will commonly be excluded by the operation of the maxim, Ar-lio personalis moritur chii/ persona. What then is to be said of the occupier at the time when the subsidence happens? Is he liable as well as the original occupier? In Greenwell v. Low Beechhurn Coal Co.-^ and in Hall v. Duke of Norfolk,^^ it has been held that the present occupier is under no such liability. These cases have been followed by the New Zealand Court of Appeal in Byrne V. Judd.-'- In this case the lateral support of the plaintiff's land was in the year 1883 removed by the adjoining owner, A, who substituted an artificial breastwork built of wood. This breastwork was kept in repair by A until 1896, when ho died, and the servient land became \'ested in the defendant as his devisee. The defendant took no steps to keep the breastwork in repair, and in 1903, being weakened by natural decay, it gave waj' under- the pressure of the adjacent soil and so caused a subsidence of the plaintiff's land. It Avas held by the Court of Appeal of Xew Zealand that the de- fendant was under no duty to maintain the artificial support of the plaintiff's land, and was not liable for the subsidence which resulted from its decay. 19 Bov:cr V. Peate (1876), 1 Q. B. D. 321. 20 (1897) 2 Q. B. 166, Bruoe, J. 21 (1900) 2 Oh. 493, Kekewich, J. 22 (1908), 27 N. Z. L. E. 1106. 284 INJURIES TO SERVITUDES. [cHAP. IX. Although the question can hardly be regarded as definitely settled, the rule acted on in these oases would seem to be acceptable in principle. It is true, indeed, as we have alreadj' seen, 23 tliat where a continuing nuisance or a con- tinuing disturbance of a servitude exists upon land, the occupier for the time being of that land is liable for the continuance of tlio injury, although the creation of it was duo not to him but to his predecessor in title. This is so, for examjDle, in the case of a house which obstructs the ancient lights of a neighbouring building,-* and in the case of a mound of isoil wliich causes water to jDcrcolate into adjoining premises, 25 and in the case of a weir wliioh interferes with riparian rights. ^6 In all these cases the occupier for the time being of the servient land is under a duty to put an end to a continuing interference with the rights of his neighbour, and is guilty of a continuing injury so long as the state of things which causes that interference continues on his land. It seems, however, that tlio case of interference with the right of support does not in ti'utli fall within the same principle. There is here no continuing injury — no continuing duty running ^\-ith the land to supplj- artificial support for the natural support which has been taken away by the act of a predecessor in title. The easement of support does not amount to a positive duty to support tlie dominant land; it only amounts to a negative duty not to interfere with the natural support possessed by that land. This negative duty is broken once for all bj' him who originally made the ex- cavation, and he alone is and remains responsible for the consequences of his act, whenever those consequences ensue. We ha^'e seen already^^ that it is a continuing trespass to build a wall upon another's land — a trespass which remains actionable from time to time until the wall is removed; but that it is not a continuing trespass to make a wrongful excavation in another's land, and that the wrongdoer is under no duty to fill up tire excaAation so made by him. 23 Supra, s. 71. 2* Ryppon V. Boii'les, Oro. Jac. 373. 25 Brodei- v. Saillard (1876), 2 Oh. D. 692. 26 Brent V. Il'iddon, Cro. Jac. 555. 27 Supra, a. 52. SECT. 80] THE RIGHT TO LIGHT. 285 The distinction may seem unsubstantial, but it is apparently well established. And so in the present case, though the occupier of land on which a wall has been already built in violation of a neighbour's right to light is under a con- tinuing duty to remove that wall, and is liable to an action in respect of its continuance, the occupier of land which has been abeady excavated in disregard of a neighbour's right of support is under no duty to fill up the excavation or to provide artificial means of support, and is under no liability for any damage which may ensue during the period of his occupancy. § 80. The Right to Light. 1. The right to receive light across another's land is not Acquisition of a natural incident of property, but an acquired easement, and of'^th™^" unless it has been acquired in the manner of other easements, no amount or mode of obstruction is actionable. The right may be acquired not merely by express or implied grant, but also by prescription, twenty years' continuous enjoyment of light conferring a title to it under the Prescription Act. ^ The easement so acquired is commonly termed a right of ancient lights. It is difiicult to see on wliat rational principle any such form of prescriptive acquisition can be based, and it is a matter for regret that it has succeeded in obtaining legal recognition. 2 . The right to light cannot be acquired by prescription No right of save in respect of a building. No length of enjoyment can J^^respect of confer any right to the access of light to open ground {e.g., a 'buUdings. garden) or to any structure which is not a building. ^ Pre-j sumably the same limitation exists in the case of a grant; so that the grant of a right to the access of light otherwise than to a building would not create any legal easement, but would amount at the most to a restrictive covenant running with the ser\'ient land in equity. 3. When an easement of light has been acquired, it is an Disturbance of right to light. 1 2 & 3 Will. IV. c. 71, s. 3. 2 Han-ls V. De Pinna (1885), 33 Oh. D. 238. 286 INJURIES TO SERVITUDES. [CHAP. IX. actionable wrong to eredt or k©ep any building or other struc- ture or thing on the servient land which so far obstructs the access of light as to render the dominant building uncomfort- able or inconvenient for habitation or for any other ordinary purpose for which such a building is adapted. An ordinary purpose is one which does not require an extraordinary or exceptional quantity of light. Colls r Home rpi^Q p^j^^g g_g j^^^g grated is established by the leading case and Colonial . -^ . ° Stores. of Colls V. Home and Colonial Stores,'' which finally settled the l&\v as to the extent of the right to light. " According to both principle and authority," says Lord Davey in this case,* " I am of ojDinion that the owner or occupier of the dominant tenement 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 acooirding to the ordinary notions of mankind." So according to Lord Lindley:^ "An owner of ancient lights is entitled to sufficient light, according to the ordinary notions of mankind, for the comfortable use and enjoyment of his house as a dwelling-house, if it is a dwelling- house, or for the beneficial use and occupation of the house, if it is a warehouse, a shop, or other place of business." Analogy 4. This being so, there is an obvious analogy between the interference disturbance of the easement of light and a nuisance affecting with light and comfort and convenience. It is not true that such a disturb- ance is indeed a nuisance — save in that vague sense in wliich nuisance includes not only nuisances properly so called, but also all disturbances of scrxitudes appurtenant. A nuisance in the proper sense consists, as we have eeen,^ in the ©scape from the land of the defendant into that of the plaintiff of some deleterious thing, such as noise, smoke, or smells. If darkness could be classed among such things, then an obstruc- tion of light would be a true nuisance; but it is clear that the claim of the owner of ancient lights is a claim to receive a benefit from the neighbouring land, and not a claim to be 3 (1904) A. O. 179. 1 (1904) A. O. 204. 5 Ibid. p. 208. 6 Supra, s. 58 (2) (3). a nuLsance. SECT. 80] THE RIGHT TO LIGHT. 287 free from its detrimental influences. Neveilliclcss, theugli tJie obstruction of light is no true nuisance, the test of its actionable nature is the same as if it were — viz. its effect on the comfortable and convenient occupation of the pro- perty for ordinar\- purposes as judged by the standard of ordinary people. o . The effect of an obstructing building upon the lights of CireumstanceH the dominant building depends on the following considei'a- uabillhrf tions: — («) The amount of light formerly received; (i) The usio to which the dominant building is put, or is capable of being put; (c) The size and number of the obstructed windows and the extent of the space to be lighted by them; \^d The existence of other windows not obstructed; (e) The height and proximity of the obstructing building — i.e., the angle of obstruction. We proceed to consider how far, if at all, each of these con- siderations is relevant in determining whether an actionable obstruction exists. 6. Amount of light jornwrhj received. The dominant Amount of building is not necessarily entitled to the Avhole of the light received, which it has hitherto received, and even a substantial diminu- tion of tliis light is not actionable unless it is so great as to produce the effect already defined. Before the decision of the House of Lords in Colls v. Home and Colonial Stores' it ■^^'as supposed to be the law that the measure of the right to light was not the amount required for comfortable and con- venient habitation and use but the amount actually received, even though in excess of any such requirement; and that any substantial and sensible diminution was therefore action- able.^ This doctrine may now be taken to have been defi- nitely overruled by Colls' case. The test of an actionable obstruction is not whether a dwelling-house, for example, has been made less bright, cheerful, or desirable than it was before, but whether it has been made uncomfortable according '' (19045 A. O. 179. 8 Warren v. Brown, (1902) 1 K. B. 15. 288 INJURIES TO SERVITUDES. [CHAP. IX. to the standard of ordinary men. Any light received beyond this standard is a surj)lus luxury for which the law affords the householder no protection at the expense of his neigh- bours. " In ordinary cases," says Lord Lindley,^ " a person does not necessarily acquire a right to enjoy in future all the light he has had for twenty years. He may have had morei than was reasonably i-equired either for domestic or busi- ness purposes; and in that case his right to protection is limited to tbe amount of light reasonably required. "i° Use made of 7, The useTTiade of the dominant building. The use which the plaintiff has actually made or actually intends to make of the building is irrelevant in determining whether the obstruc- i tion of light is actionable. Tlie true test is the ordinary uses 1 of which such a building is capable. The amount of light to wliich a building is entitled is the amount reasonably required for any ordinary purpose to which the building in its present structural form may reasonably be put. Ordinary purposes are those Avhich do not require any exoeptional or extra- ordinary quantitj- of light. This being So, the plaintiff does not lose or restrict his right by not making full use of it. He may for twenty years have used a room in liis house as a lumber room, or not have used it at all, and yet he may sue for any obstruction which would prevent its comfortable occupation . On tlie other hand, he cannot increase his right by using his building for a purpose which requires more than 9 Colls- V. Home and Colonial Stores, (1904) A. C. p. 206. 1" It is submitted tliat this is a correct statement of the law not- withstanding the later and very unsatisfactory case of Jolly v. Kine, (1907) A. C. 1, in which the House of Lords was equally divided, and therefore upheld the decision of the majority of the Court of Appeal in favour of the plaintifE; (1905) 1 Ch. 480. The only mode of re- conciling this decision with the accepted principle of Colls v. Home and Colonial Stores is to regard Jolly v. Kine as a decision on the particular facts of the case, to the effect that the diminution of light did in fact amount to a nuisance in a locality of that nature, the standard of comfortable living being there exceptionally high. See the observa- tions of Lord Loreburn at p. 3, and see s. 59 (4i), supra, also Paul v.. Jtohson (1914), 83 L. J. P. O. 304. Whether on the facts such a conclusion ,was justified is another question, on which it is difficult to avoid concurrence with the dissenting judgments of Lord Robertson and Lord Atkinson. The reasoning of the majority of the Court of Appeal seems to involve nothing less than a recurrence to the overruled doctrine of Warren v. Brown, (1902) 1 K. B. 15. SECT. 80] THE EIGHT TO LIGHT. 289 the ordinary quantity of light — e.g., for a photographic studio; and this is so, even though the building has been put to that use for the full period of twenty years with the knowledge of the owner of the servient land.^i "Regard may be had," says Lord Davey in Colls' case,^^ " not only to the present use, but also to any ordinary uses to which the tenement is adapted. . . . 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 permits. . . . The question for what pur- pose he has thought fit to use that light . . . does not affect the question. The actual user will neither increase nor diminish the right." So Lord Lindley says,^^ " The purpose for which a person may desire to use a particular room or building in future does not either enlarge or diminish the easement which he has acquired." 8. Structural arrangement of the dominant building. It sti-uoturai is, it seems, no defence that the plaintiff's building is struc- 0?™"^^?! turally defective in the matter of lighting, and that had the windows been large enough or numerous enough no incon- venience would have been suffered by him. It is clear that the effect of an obstructing building will be the greater the worse the lighting arrangements of the dominant building are, and that an erection may cause serious inconvenience in a building already badly lighted, which would have no such effect on a well-lighted one. It would seem,, however, ■ that such a consideration is irrelevant. The plaintiff has a right to the comfortable and convenient occupation of his building as it stands, and if it is badly lighted, the defen- dant must take all the more care not to obstruct such light as it possesises, or else not to allow an easement of light to be acquired. Thus, in Dent v. Auction Mart Co.^^ it is said, in answer to such a defence: "I apprehend it is not 11 Ambler v. Gordon, (1905) 1 K. B. 417. In Colls' case the question as to the effect of prescription is left open by Lord Davey, (1904) A. C. p. 203. 12 (1904) A. C. pp. 202, 204. i' (1904) A. 0. p. 211. 1* (1866), L. E. 2 Eq. p. 251. See, however, the observations of Lord Eobertson in Colls' case, (1904) A. 0. p. 181. S. 19 290 INJURIES TO SERVITUDES. [cHAP. IX. for tlxe defendants to bell the plaintiffs how they are to con- struct their house, and to say 'You can avoid this injury by doing something for which you would have no protection.' . . . They have a right already acquired by their old ex- isting window; that right they wish to preserve intact; and I think they are clearly entitled to retain the right as they acquired it, without being compelled to make any altera- tions in their house to enable other people to deal with their property." EflEect of A structural alteration made in the dominant building alterations. Cannot increase the amount of light to which the building is entitled. The plaintiff cannot by diminishing the size of his windows, or by blocking up one of them, forthwith increase the burden on the servient land.^^ He must acquire an increased right by twenty years' enjoyment from the date of such an alteration. So also if, without altering the windows, he increases the size of the room lit by them, so as to require more light; or if he alters the structure of the building, so as to make it fit for a purpose for which it was not formerly adapted, and which requires an increased flow of light. Thus, in Martin v. Ooble,^^ an ancient malt-house was by structural alterations transformied into a workhouse, and it was held that the building was entitled to the amount of light necessary for a malt-house but not to that which was necessary for a workhouse. " The converting it from the one into the other," says McDonald, C. B.,1'^ "could not affect the rights of the owners of the adjoining ground. No man could by any act of his suddenly impose a new restric- tion upon his neighbour." So in Colls v. Home and Colonial Stores^^ the plaintiffs had, less than twenty years before, altered the structure of their building by enlargiug the room lit by their ancient windows, and it was held that they had no cause of action simply because they were deprived of sufficient light to light the whole of the room so enlarged. " It would be contrary to the principles of the law relating 15 Anhersen v. Gonndly, (1907) 1 Oh. 678. " (1808), 1 Camp. 320. " Ibid. p. 322. is (1904) A. C. 179. SECT. 80] THE RIGHT TO LIGHT. 5^591 to easements," says Lord Davey,!^ "that the burden of the servient tenement should be increased or varied from time to time at the will of the owner of the dominant tene- ment. The easement is for access of light to the building . and it does not seem to me to depend on the use which is made of the chambers in it, or to be varied by any altera- tions which may be made in the internal structure of it." 9. Residuary light from other mndows. In estimating Light from the actionable nature of any obstruction of light, no account ° ^^ sources, is to be taken of any residuary light entering through other windows in respect of wliich no legal protection exists and which are capable of obstruction by third persons. The plaintiff cannot be deprived of his right to complain of em obstruction of his ancient lights merely because of the irrelevant circumstance that he has at present the precarious enjoyment, at the wiU of another person, of sufficient light through other windows. " I apprehend," says Lord Lindley in Colls' case,^'' "that light to which a right has not been acquired by grant or prescription, and of which the plaintiff may be deprived at any time, ought not to be taken into account. "21 , As to residuary light of other kinds, the law remains un- settled, and the true solution is probably one of considerable complexity. It may be necessary to distinguish between residuary light coming over the same servient land, residuary light coming over different servient land, and residuary light coming over the dominant land itself. When there is any residuary light of such a nature that no account is to be taken of it, the question as to the actionable nature of the obstruction may be formulated thus: If this residuary light did not exist, would the obstruction com- plained of make the building uncomfortable or inconvenient or more uncomfortable or inconvenient than it would other- wise have been? 10. The angle of obstruction. The actionable nature of The angle of any obstruction will depend inter alia on the angle of obstruc- w (1904) A. C. p. 202. 2" Ibid. p. 211. 21 See also Jolly v. Eine, (1907) A. O. p. 7, per Lord Atkinson. 19(2) 292 INJURIES TO SERVITUDES. fCHAP. IX. tion — that is to say, the angle between a horizontal line and a line drawn from the window to the top of the obstructing building. In an ordinary case the fact that this angle does not exceed forty-five degrees is prima facie proof that the obstruction is not actionable. If, indeed, the height and proximity of the obstructing building (i.e., the angle of obstruction) were the only con- sideration, the law would be very much simplified, for it would be possible to lay down a fixed rule — e.g., that the angle of obstruction may amount to forty-five degrees, but must not exceed that limit. This, however, is not so, for there are, as we have seen, several other circumstances to be taken into account which may either increase or diminish the per- missible angle. All that can be said, therefore, is that in ordinary cases an angle of forty-five degrees may be pre- sumed not to be excessive. 22 Acqnired right to the passage of air. Only in respect of buildings. § 81. The Right to Air. 1. An easement of the passage of air through a defined aperture in a building may be acquired by grant, express or implied, or by prescription. Thus, in Bass v. Gregory^ the plaintiff was held entitled by prescription to the access of air to his cellar through a shaft which opened into a disused weR on the defendant's property. So in Hall v. Lichfield Brewery Co. 2 a claim was allowed to the access of air to a slaughter- house through two apertures made in the adjoining wall belonging to the neighbouring owner. ^ 2. No prescriptive right, however, can be acquired to the access of air to open ground, or otherwise than to defined apertures in a building. Thus, in Webb v. Bird,^ it was held that no action would lie for the obstruction of the passage of wind to an ancient windmill. So in Bryant v. Lefever^ an 22 See CoUs v. Home and Colonial Stores, (1904) A. O. pp. 204, 210; City of London Brewery Co. v. Tennant (1873), Ii. E. 9 Oh. p. 220, per Lord Selborne. 1 (1890), 25 Q. B. D. 481. * (1880), 49 L. J. Oh. 655. 5 See also Cable v. Bryant, (1908) 1 Oh. 259. * (1863), 13 O. B. (N. S.) 841. 5 (1879), 4 O. P. D. 172. SECT. 82] RIGHTS TO WATER. 293 action was unsuccessfully brought by a plaintiff on the ground that his ancient ohinmeys had been caused to smoke by reason of the erection of a building whiah cut off from them the necessary draught of air.^ § 82. Rights to Water. There is a natural easememt vested in every owner of land Classes of on the banis of a natural stream, entitling him to the con- '«'»*«'■ "gl'ts- tinned flow of that stream in its natural condition. An actionable interferende with this easement may take place in at least three different ways: — (1) Abstraction — that is, taking water out of the stream so as to reduce the amount or level of the water as it flows past the plaintiff's land. (2) Pollution — that is, some harmful alteration of the natural quality of the water. (3) Obstruction — that is, the erection of some barrier against the natural flow of the water, so as to throw it upon the plaintiff's land higher up the stream or on the opposite side of it. § 83. Wrongful Abstraction of Water. 1. Every riparian owner has a right to the undiminished The right to flow of the water in a natural stream, subject only toi the of water, reasonable use of the water by other riparian owners for the purposes of their riparian property. 2. A riparian owner is the owner or occupier of riparian Who are land,^ and riparian land is that which abuts on or is in contact owners, with the water of a natural stream. The ownership of the land forming the bed of the stream is immaterial with respect " See also BarrCs v. De Pinna (1885), 33 Oh. D. 238; Chastey v. AcMand, (1895) 2 CJh. 389; (1897) A. O. 155. 1 Althongh it is convenient to speak in this connection of riparian owners, it would be more correct to speak of riparian occupiers. Here, b& elsewhere, in respect of injuries to property, the right of action depends in ordinary cases not on the ownership but on the possession of the property affected. The right of an owner who is not in possession is exceptional, and will be considered later. Infra, a. 95. 294 INJURIES TO SERVITUDES. [cHAP. IX. Land ceasing tote riparian. Land on which stream originates. No natural easement over artificial streams. to riparian rights. The bed or alveus may belong wholly to the riparian owner, as when the stream passes through his property; or it may belong in equal shares to the ripariaxt owners on the opposite banks, as is prima facie the case when a stream forms the boundary between two properties; or it may belong wholly to the opposite riparian owner oo- to tlie Crown . Yet in all these cases the rights of the riparian owner are the same, for they are based on the ownership of the land which is in contact with the water so as to give a right of access to it, and not on the ownership of the land over which the water flows. ^ 3. Riparian rights are attached to riparian land only so long as it remains riparian. Therefore if riparian property becomes divided between two owners, so that one portion no longer adjoins the stream, that portion no longer retains any riparian rights. ^ Conversely, land which adjoins riparian land may become itself riparian by beoomiag united there- with in ownership. 4. Eiparian rights belong to lower riparian owners even as against him on whose land the stream has its origin. A land- owner on whose property a spring rises, which flows out of it in a natural stream, has no more right to intercept that water than if it were passing through his land from elsewhere.* 5. This right to the uninterrupted flow of water exists naturally only in the case of natural streams. Easements' over artificial watercourses must be acquired by grant or prescription.^ The nature of such acquired rights will depend on the circumstances in which they have come into existence, and they may or may not be identical with the rights which exist in respect of natural streams.^ '" Lyon V. Fishmongers' Co. (1876), 1 A. C. 662. 3 See StooJcport Waterworks Co. v. Potter (1864), 3 H. & O. 300. * Budden v. Clutton Union (1857), 1 H. & N. 627; Bunting v. Hicks (189i), 70 L. T. 455; Mostyn v. Atherton, (1899) 2 Ch. 361. 5 Wood) V. Wa'ud (1848), 3 Ex. 748; Rameshur v. Koonj (1878), 4 A. 0. 121. 6 See Baily v. Morland, (1902) 1 Oh. 649; SutcliffeY. Booth (1863), 32 L. J. Q. B. 136. It will be understood that, notwithstanding this dis- tinction between natural and artificial streams, the riparian rights of an owner on the bank of a natural stream wUl suffice to protect hia enjoyment for riparian purposes of water in an artificial channel, such SECT. 83] WRONGFUL ABSTRACTION OF WATER. 295 6. There is no natural right to the continued flow of mere No natural surface water not running in any defined natural channel, for fl^w of "surface such water does not constitute a stream within the meanine "'^*^'^ °.°* , , . '-' amounting to 01 the rule now under consideration. Therefore the owner of a stream, land on which such water exists — e.gr., a spring which spreads its supply over the surrounding land instead of directly, feeding a natural stream — may by drainage or otherwise abstract or intercept it, without doing wrong to landownersi on a lower level who may have received the benefit of such a supply. And this is so even though the surface water would otherwise find its way ultimately into a natural stream which is consequently diminished by the defendant's opera- tions. But after it has once reached a natural stream, or a natural pond or pool which directly feeds a natural stream, it must not be abstracted. '^ 7. The general principle now under consideration has been Alternative; ; established by our law after some hesitation, as the most to rip^-ian ^' satisfactory solution of the very difficult problem created by eights. the competing and inconsistent interests of upper and lower riparian owners. It may not be useless to notice briefly the various alternative principles which might have been adopted in this matter: — (a) The law might have regarded the interests of the upper owners as completely predominant over those of the lower; so that the former could make suoh use of the water passing through their lands as they pleased, and the latter would have a right to no water save the residue which the upper owners in their own good pleasure chose to leave to them. (&) In the second place, the exactly opposite principle might have been adopted, making the interests of the lower owners absolutely predominant over those of the upper, any abstraction whatever being an infringement of the rights of all those who owned land lower down the stream. (c) A third possible alternative is a compromise between as a millxace, by wHoh he diverts water from the natural stream. See, for example, Nuttall v. Bracewell (1866), L. R. 2 Ex. 1. ' Eawstron v. Taylor (1855), 11 Ex. 369; Broadbent v. JRamahotham (1866), 11 Ex. 602. 296 INJURIES TO SERVITUDES. [cHAP. IX. these two extremes, and makes riparian rigkts depend on prior appropriation. On this principle, he would have the best right who first made use of the water for some beneficial pur- pose, and all subsequent user by other owners higher or lower would be subject to this acquired right. At one time it was beHeved that this was actually the law, but this doctrine was definitely rejected in the leading case of Mason v. ffiZZ,^ which first established the law of riparian rights on its modern basis. (d) The fourtli and last alternative is that which has been actually adopted. It also, like the third, is a oompromise between the two extreme principles already stated, but it is a compromise of a different nature. The lower owners have a right to the undiminished fl'Ow of the water as against the upper owners ; but it is not an absolute right, for it is subject to the reasonable use of the water by the upper owners for the purposes of their riparian lands. " This right," says Parke, B., delivering the judgment of the Ctourt of Exchequer in Embrey v. Owen,^ " to the benefit and advantage of the water flowing past his land is not an absolute and exclusive right to the flow of all the water in its natural state; if it were, the argument of the learned counsel that every abstraction of it would give a cause of aOtion would be irrefragable; but it is a right only to the flow of the water and the enjoyment of it subject to the similar rights of aU the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence. It is only, therefore, for an unreasonable and unauthorised use of this common benefit that an action will lie." The precise nature of the general principle thus adopted has not yet been sufficiently worked out to be wholly free from doubt and difficulty, but it is believed that the two next succeeding sections state with approximate accuracy the present law on the subject. 8 (1833), 5 B. & Ad. 1. 9 (1851), 6 Ex. p. 369. SECT. 84] ABSTRACTION FOE NON-KIPARIAN USES. 297 § 84. Abstraction for Non-Riparian Uses. 1 . Any interf erenoe with the flow of a natural stream, 4'^ abstrac- whether by a riparian owner or by any other person, through riparian" °" the abstraction of water for any purpose unconnected with the P'^rposes ... -11 actionable use oi riparian land is a wrong actionable at the suit of any without proof riparian owner whose portion of the stream is thus affected, °* er riparian proprie- tors ? And what other test of reasonableness can be or has beem adopted, save the effect of the user upon the interests of the lower ■owners ? It is to be observed in this connection, however, that when the plaintifP is a reversionary owner, and not an occupier, it may be suffl- •cient if he can prove damage suffered by the present occupier, though none is suffered by himself ; because the circumstances may be such that by the oontLnuanoe of the user complained of (which is wrongful as against the tenant) a prescriptive right may be acquired even against 304 INJURIES TO SERVITUDES. fcHAP. IX. No action for interference with under- ground water. Chasemore v, Eichards. Aliter with defined under- ground channel. § 86. Abstraction of Underground Water. 1 . It is not actionable for a man to do on his own land any act -vvliioli interferes with the underground percolation of water, even though water is thereby intercepted which would otherwise have reached a surface stream or the land of another person. This is the doctrine established by the House of Lords in the leading case of Chasemore v. Richards.'^ The defendants sank a well a quarter of a mile away from a natural stream, and pumped up water for the supply of a neighbouring town; and although the effect was materially to diminish the volume of water in the stream by intercepting its underground sources of supply, it was held that riparian owners had no cause of action. So also in Acton v. Blundell,^ where the mining operations of the defendant had the effect of drying up the plaintiff's well, this was held to be merely damnum sine, injuria.^ 2. It makes no difference whether the harm so done is accidental or intentional, or whether it is or is not incidental to the honest and reasonable use by the defendant of his own land for his own purposes. The right to abstract or intercept underground water is absolute and unconditional.* 3. Where, however, underground water runs in a defined and known channel, as in the case of those streams which for part of their course run beneath the ground, it is subject to the same rules as those which protect a natural stream upon the surface.^ Thus, it is actionable to abstract water from a the reversioner himself, and this prospective injury he is entitled to prevent by a present action. Sampson v. Soddinott (1857), 1 O. B. (N. S.) 590; Young v. Bankler IHstillery, (1893) A. C. p. 698, per Lord Maonaghten: "Any invasion of this (riparian) right causing actual damage, or calculated to found a claim which may ripen into an adverse right, entitles the party injured to the intervention of the Court." 1 (1859), 7 H. L. C. 349. 2 (1843), 12 M. & W. 324. 3 See also Reg. v. Metropolitan Board of Works (186.3), 3 B. & S. 710; New River Co. v. Johnson (1860), 2 E. & B. 435; Bradford Corporation V. Ferrand, (1902) 2 Ch. 655. * Mayor of Bradford v. Pickles, (1895) A. O. 587. 6 Chasemore v. Richards (1859), 7 H. L. C. p. 374, per Lord Chelms- ford. S-ee Bradford Corporation v. Ferrand, (1902) 2 Ch. 655. SECT. 86] ABSTKACTION OF UNDERGROUND WATER. -W^i spring which directly feeds a natural stream, even though the spring is tapped beneath the surface and the water is abstracted before it has become part of the visible stream.^ 4. The rule in Chasemore v. Richards applies to the Abstraction abstraction of underground water from the land of one's guishedfrom neighbour, no less than to the interception of undergi-ound interception, water which would otherwise have reached that land J This seems to be so even if the result of so abstracting undear- ground water is to lower the level of a surface stream by causing the water of that stream to percolate through the subjacent or adjacent strata.® 5. The pollution of underground water, as opposed to Pollution, the abstraction or interception of it, is actionable as a nuisance, s 9 10 § 87. The Pollution of Water. 1 . The pollution of a natural stream is a wrong actionable Pollution of at the suit of any riparian owner past whose land the water so stream action- polluted flows. Such pollution, though it consists in allowing *^^®- the escape of deleterious matter from the defendant's land to the plaintiff's, is not a mere nuisance, but is to be righth- classed as the wrongful disturbance of a servitude. It is an infringement of the positive right of a ripai-ian owner to receive the pure water of the stream, and not the infringe- ment of the merely negative right possessed by every landowner not to have foul water or any other deleterious substance cast upon his land. It differs, therefore, from the pollution of the atmosphere, which is a mere nuisance, 6 Dudden v. Clutton Union (1857), 1 H. & N. 627. 7 Salt Union v. Brunner, (190€) 2 K. B. 822. 8 English v. Metropolitan Water Board, (1907) 1 K. B. 588. The decision in Grand Junction Canal Co. v. Shugar (1871), 6 Ch. 483 (in which it was held actionable to lower the level of a stream by reason of underground drainage) is distinguished as being a case in which the surface water was directly tapped and drawn o£E, and not merely caused to percolate through the subjacent soil. See Jordeson v. Sutton Gas Co., (1899) 2 Ch. at p. 251. 9 Ballard v. Tomlinson (1885), 29 Oh. D. 115. 1" As to interference with the right of support by the abstraction or interception of underground water, see supra, s. 79 (6). s. 20 306 INJURIES TO SKRVI'I'UDlvS. [CHAP. IX. Pollution defined. No proof of damage required. inasmuch as a landowner has no servitude entitling liim to the passage of air across his land. For the same reason it differs from the pollution of underground water, which is actionable as a nuisance,^ although, since there is no right to receive such water, its mere abstraction is not actionable. ^ Indeed, unless the riparian owner is the owner of part of the bed of the stream as well as of its banks, the pollution of a stream is not a nuisance at all, but solely the disturbance of a servitude, since there is in such a case no escape of any deleterious substance into the plaintiff's land at all. 2. The term pollution is here used in a wide sense to include any alteration of the natural quality of the water, whereby it is rendered less fit for any purpose for which in its natural state it is capable of being used. Thus, it is actionable to raise the temperature of the stream by dis- charging into it hot water from a factory, ^ or to make soft water hard by discharging into the stream water impregnated with lime,* no le^ than to pollute the stream by pouring into it the sewage of a town or the chemical refuse from a factory.^ 3. Pollution is actionable without proof of actual damage. The right of the lower owner is an absolute right to the con- tinued flow of the stream in its natural quality, and any sensible alteration of this quality which renders the water less fit for any purpose is an actionable wrong, even though the plaintiff has not in fact been j)revcnted from making any use of the water which he has hitherto made or now desires to make of it.^ There is no right of "reasonable pollution" vested in the upper riparian owners, to which the right of the lower owners is subject as it is subject to the upper owners' right of reasonable use by way of abstrac- tion. An action for pollution will therefore lie, although 1 Ballard v. Tomlinson (1885), 29 Oh. D. 115. 2 Chasemore v. Richards (1859), 7 H. L. C. 349. 3 Ormerod v. Todmorden Mill Co. (1883), 11 Q. B. D. 155. * Young v. Banhier Distillery Co., (1893) A. C. 691. 5 Wood V. Waud (1848), 3 Ex. 748; Crossley v. Lightotvler (1867). L. E. 2 Oh. 478. 6 Crossley v. Lightowler (1867), L. R. 2 Ch. 478. SECl'. 87] THK POLLUTION OF WATKR. 307 thti water is already, independently of any act of the de- fendant, so polluted b}- the acts of other riparian owners that no additional damage is caused hj the defendant's contribution.^ 4. Yet, although actual damage need not be provml, actual Alteration of pollution must be — i.e., it must be shown not merely that the necessarily water has been in some Avay affected in its natural quality, poU'it'o"- but that by reason of this alteration it is now less suitable than it was before for some purpose to which it mig-ht be applied . If for all practical purposes it is as good as it was in its natural condition, no riparian owner can complain merely because it is different from what it was. Thus im- purities, the only effect of w hieh is to make water unfit for drinking, may doubtless be lawfully discharged into a stream which is in its natural condition already unfit for that pur- pose. So the fouling of a stream is not actionable at the suit of a lower riparian owner if the pollution is no longer sensible when the water reaches his land.*' § 88. Obstruction of a Stream. 1 . The erection of any obstruction in the bed of a natural Obstruction of stream, whereby the water is thrown back upon the land of stream aotion- an upper riparian owner, or upon the land of the opposite ''■^1®- riparian owner, is actionable at the suit of the owner so affected. A riparian owner has not merely a right to receive the water of the stream, but owes towards all upper and opposite riparian owners a duty to receive and transmit it. The obstruction of a stream, therefore, may be not only a wrong to the lower owners who are thereby deprived of the water, but also a wrong to the upper owners from whose lands it is prevented from flowing away, and to the opposite owners on whose land more water' is cast than -would flow there in the ordinary course. i • Ibid.; Wood v. Waud (1848), 3 Ex. 748. 8 Att.-Gen. v. Cockermouth Local Board (1874), 18 Eq. 172, J Bickett V. Morris (1866), L. R, 1 So. Ap. 47, as explained in Orr Ewinff V. Colquhoun (1877)j 2 A. C. 839; McGlone v. Smith (1888), 22 X. E. Ir. 559. 20(2) 308 INJURIES TO SERVITUDES. [cHAP. IX. Aliter if no riparian owner affected. Eight of self- defence against over- flow of stream. 2 . An obstruction which has no such effect upon any upper or opposite owner is lawful. While a stream is flowing within a nlan's own land he may do what he pleases with it by way of diversion or obstruction, and does no wrong thereby to way riparian owner so long as he does not in the result compel any one to receive water which he would not otherwise have been burdened with, or deprive any on© of water of which he would otherwise have had the benefit. ^ 3 . It is doubtless lawful for any riparian owner to protect his land from the overflow of the stream in times of flood by raising its banks or in any other way that does not amount to an obstruction in the bed of the stream, even though the effect of these protective measures is to cast the flood water upon the lands of other proprietor's; for no man is bound to receive the overflow of a stream, though he is bound to receive the stream itself .^ Nevertheless, if a stream has an established flood channel in addition to its ordinary channel, any obstruction of the former is just as illegal as an obstruction of the latter.* ^ 2 Orr Ewing v. Oolquhoun (1877,), 2 A. C. at p. 856, per Lord Black- burn. 3 Nield V. London # N. W. My. Co. (1874.), L. R. 10 Ex. 4; Maxey Drainage Board v. Gt. N. My. Co., 106 L. T. 429. 4 Menzies v. Breadalbane (1828), 3 Bli. N. R. 414. 5 A difficult ajid unsettled point in the law as to water rights is iha position of a non-riparian owner who, by grant from a riparian owner, is in the enjoyment of an artificial watercourse diverted from a natural stream: as when a mill-owner or manufacturer takes water from the stream in a mill-race or pipe for the use of his mill or factory on non- riparian land. Has such a grantee any right of action for the obstruc- tion or pollution of the water so obtained by him ? In consideringi this question we shall assume that the plaintifll's right to the water has been created by deed, and not merely by verbal or written agree- ment, so that if such an easement can exist at all, it has been duly created and is not a mere license. (a} It is clear, to begin with, that no such grant can confer on the grantee as against the lower riparian owners any right to diminish the stream by abstraction, and that any such diminution by a non-riparian grantee is actionable per se at the suit of a lower owner, even though an equal diminution by the grantor himself would have been lawful. But if no sensible diminution is so caused, the use of the water by the grantee, is no injury to the lower owners or to any one else. Kensit v. Gt. E. Ely. Co. (1884), 27 Ch. D. 122. (S) It is also clear that the grantee cannot complain of any diminu- tion of his supply by the use of the water for riparian purposes by riparian owners higher up the stream. For the right of these owners is to use the water biS they please for riparian purposes, subject only to the similar right of lower owners to use it for their own iiipariaiL SECT. 89] RIUHTS OF WAY. 309 § 89. Rights of Way. 1 . Rights of ■way are either private or public. The former Public and calLfor no special consideration, for they are governed by the PJ'^'*''^*® rights ordinary principles already considered by us in relation to easements in general. Public rights of way, on the other hand, demand more particular examination. They are of two kinds, for they exist either over highways or over navigable rivers. The law as to these two is essentially the purposes, but not subject to the requirements of non-riparian grantees of the lower owners. See Xuttall v. Bracexvell (1866), I>. E. 2 Ex. p. 13, per Channell, B. (c) It is also settled that if the grantee is himself a riparian ownej- and is using the water for riparian purposes, the fact that he draws the water from the stream, not at the point where it adjoins his property but from - point higher up, under the grant or license of an upper pro- prietor, he has the same right to complain of the abstraction of the water as if he drew it directly from his own bank. Sutlall v. Bracewell (1866), L. R. 2 Ex. 1; see also Eolker v. Porritt (1875), L. E. 10 Ex. 59. {d) So also it is not disputed that a grant of water rights to a non- riparian owner is valid and enforceable against the grantor himself. Stockport Waterworks Co. v. Potter (1864), 3 H. & 0. 300. (e) There remains, therefore, only this question: Can a non-riparian grantee sue an upper riparian owner for the pollution of the water or for its diminution by non-riparian use ? On principle there would seem to be no reason why he should not. He is the grantee of a legally created easement appurtenant to his own land over the servient riparian land of ins grantor, and his enjoyment of this easement is interfered with by an act of the defendant which is admittedly wrongful as against the grantor. Why, then, should not the grantee have in his own name a good cause of action for this injury ? In Fitzgerald v. Firbank, (1857) 2 Ch. 96, it was decided by the Court of Appeal that the grantee of a right of fishing in a stream had a good cause of action in his own name to prevent the pollution of the stream; and if the grant of a profit is valid for this purpose, it would seem that the grant of an easement appurtenant must be equally effleaoious. Nevertheless it was held by a majority of the Court of Exchequer in Stockport Water-works v. Potter, 3 H. & C. 300, that no action would lie for the pollution of a stream at the suit of a waterworks company who by grant from a riparian owner drew water in pipes to their reservoir for the supply of a neighbouring town. It is submitted that the dissenting judgment of Bramwell, B., in this case was correct. The approval with which this decision has been cited in certain later oases does not relate to the point now in question, but solely to the undoubted principle that no such grant to a person who is not a, riparian owner can render his use of the water lawful as against lower riparian owners — a very different matter. See Ormerod v. Todmorden Join! Stock Mill Co. (1883), 11 Q. B. D. 155; McCarfne;/ v. Londonderry My. Co., (1904) A. 0. 301. (/) If the non-riparian plaintiff is in the enjoyment of the water not under any deed of grant, but solely by parol agreement, his legal position is rendered additionally uncertain by reason of those unsettled points relating to the rights of licensees and possessory owners of servi- tudeg which we have already considered. See above, s. 74 (10). 310 INJURIES TO SERVITUDES. [CHAP. IX. Highways. Classes of injuries in respect of highways. same, and although we shall here speak specifically of liigh- ways only, it will be understood that, mutatis mutandis, the same principles are for the most part applicable to navigable rivers also. 2. A highway (including in that term anj- public road) is a piece of land over which the public at large possesses a right of way . At common law the ownership of a highw ay is in the owner or owners of the land adjoining it on either side, the highway having been made such by an actual or presumed dedication of it to the use of the public by the proprietors of the land over which it runs. By statute this common law rule has been so far derogated from that certain kinds of highways are now vested in the municijaal corpora- tions or other corporate local authorities having the care and management of them. ThesL> statutes, however, have been so interpreted as to vest in the local authorities not the whole of the land on which the highway lies usque ad coelum et ad inferos, but only so much of it above and below the surface as is reasonably necessary for the efficient construction, care, and use of the highway. The subsoil below and the space above the limits so defined remain as at common law in the owners of the adjoining lands. ^ 3. There are at least four distinct kinds of injury which may be committed in respect of a highway: — (a) Modes of user amounting to a trespass against the owner of the highwaj-. In dealing with the law of trespass we have already sufficiently considered this matter. We there saw that he who enters upon a highwa}' for any other purpose than that of jDassage and the purposes lawfully incidental to passage is guilty of an actionable trespass against the owner of the land. 2 (6) Modes of user amounting to a nuisance to the occu- piers of adjoining land. This also is a matter which need not be further considered, for it has 1 Wandsworth Board of Works v. United Telephone Co. (1884), 13 Q. B. D. 904. 2 Supra, s. 52 (4). SECT. 89] EIGHTS OF WAY. 311 boon already touched upon under the head of uuisajico. Thus, in Benjamin v. Storr^ it was held to be a nuisance, actionable at the suit of the occu- pier of a shop adjoining the street, to allow horses to stand so constantly in front of the shop as to darken its windows and pollute the atmosphere. ((?) Disturbance of that right of access to the highway which is possessed by every occupier of adjoining IDremiscs. {d] Public nuisance to a highway — i.e., the unlawful dis- turbance of the public right of passage thereon. These two last forms of injury have not yet been considered and wiU form the subject of the succeeding sections. § 90. Disturbance of the Right of Access to a Highway. 1. Every person who occupies land immediately adjoining Private right a highway has a private right of access to the highway from °* ff-^^ff- *? his land and vice versa; and any act done without lawful way. justification whereby the exercise of this private right is obstructed is an actionable wrong. ^ 2. This right of access to a highway by the occuf)icr of Distinguished land abutting upon it must be distinguished from the right of ^j°?i pubUo passing along the highwa}' . The former is a private and the passag-e. latter a public right, and for any infringement of the former an action will lie; whereas, as we shall see, no action will lie for an infringement of the public right of passage except on proof of some special or particular consequential damage suffered by the plaintiff. 3. The private right of access thus protected includes merely the right to get from the highway into the plaintiff's = (1874), L. E. 9 O. P. 400; supm, s. 67 (1). 1 liose V. Groves (1843), 3 M. & 6. 613; Chaplin v. IV estmiiister Corporation, (1901) 2 Ch. 329; Att.-Gen. v. Thames Conservators (1862), 1 H. & M. p. 31; Lyon v. Fishmongers' Co. (1876), 1 A. C. 662; Metropolitan Board of Works v. McCarthy (1874), L. R. 7 H. L. 243; Fritz V. Hobson (1880), 14 Oh. D. 542; Barber v. Penley, (1893) 2 Gh. 447; Benjamin v. Storr (1874), L. R. 9 C. P. 400; Lingke v. Mayor of Christchurch, (1912) 3 K. B. 595; Cobb v. Saccbij, (1914) i K. B. 822. 3'12 INJURIES TO SERVITUDES. fCHAP. IX. land, and from his land into the highway; and does not include a right to get to and from the plaintiff's land by going along the highway, for this is merely the public right of passage. 2 4. A disturbance of this private right of access may or may not be at the same time a disturbance of the public right of passage. A man's doorway may be obstructed by an act which in no way obstructs the use of the highway; and con- ■^'ereely the highway may be obstructed, while the right of access remains unaffected. Nuisance to a highway a misdemeaii- enr. Kinds of muisance to kighway. § 91. Nuisance to a Highway. 1 . A. nuisance to a highway is an act done without lawful justification whereby the exercise of the public right of pas- sage is obstructed or rendered dangerous . The term nuisance is here used in the sense of public nuisance — i.e., an indictable misdemeanour. Under what circumstances such an act is also a civil wrong actionable at the suit of an individual we are about to consider. 2 . A nuisance to a highway consists either in obstructing it or in rendering it dangerous. Examples of the first are stopping a highway by erecting a fence across it; narrow- ing it by a fence or building which projects beyond the boundary-line; leaving horses and carts standing in it for an unreasonable time or in unreasonable numbers ; ^ collecting a crowd of people in it, as at a theatre door or a public meeting; 2 making excavations or erections in it without lawful authority. Wrongful danger to the highway, on the other hand, may be caused either by something done in the highway itself or by something done on the land which adjoins it. Examples are leaving unlighted or unguarded an excavation or obstruction, even though lawfully created ;3 2 See ClmpUn v. Westminster Corporation, (1901) 2 Ch. 329. 1 Benjamin v. Storr (1874), L. E. 9 C. P. 400; Fritz v. Hobson (1880), 14 Ch. D. 542. 2 Barber v. Penley, (1893) 2 Ch. 447; Li/oni, Sons ^ Co. m. Gulliver, (1914) 1 Ch. 631. 3 Penny v. Wimbledon Urban Council, (1899) 2 Q. B. 72. SKCT. 9l] NUISANCE TO A HIGHWAY. •Sl'^ keeping in the highway defective cand dangerous tramway- lines, coal-plates, or cellar gratings;* leaving on the high- Avay or adjacent thereto unusual objects calculated to frighten horses ;S allowing a house, fence, or other structure immediately adjoining the highway to become ruinous and dangerous;'' keeping unfenced an excavation so close to the highway as to be a danger in case of accidental deviation.^ 3. When, however, a road is dedicated to the public, it is Daugers presumed to be so dedicated on the terms that the public right ^^^ "f '^ of passage is to be subject to all obstructions and dangers dedication, which exist at the time of dedication; and the adjoining owners and occupiers are therefore under no liability for maintaining such obstructions or dangers or for auy mischief that may result from them.^ 4 . -A nuisance to a highway amounts to a misdemeanour, Nuisance to a 111- p • 1 • highway not and may be made the subject oi an indictment at common actionable law, or of some other criminal proceedings sanctioned by "°'^*'* •* . ^ ^ ^ jr o ./ cause special statute in particular classes of cases . It may also be restrained damage to by injunction at the suit of the Attorney-General acting ex officio or at the relation of a local authority or any pri\ ata person interested in the matter. But it is not per se action- able at the suit of a private person — a rule established for the purpose of preventing oppression by means of a multiplicity of civil actions for the same cause. Xo such action will lie save at the suit of a person who can show special and particular damage suffered by himself and distinct from the general inconvenience endured by him in common with the public at large. In Winterbottom v. Lord Derby^ Kelly, C.B., says, "The rule of the law on the subject ... is -^ See Pretty v. Biclomore (1873), L. E. 8 O. P. 401. Alitcr with struc- tures which are really part of the highway and are therefore to be repaired by the local authority and not by the adjoining occupiers. Bobbins v. Jones (1863), 15 0. B. (N. S.) 221. 5 Wakins V. itey (1883), 12 Q. B. D. 110; Harris v. Mobbs (1878), 3 Ex. D. 268; Brown v. Enatcrn # Midland My. Co. (1889), 22 Q. B. D. 391. ^' Harrold v. Watneij, (1898) 2 Q. B. 320. '' Barnes v. Ward (1850), 9 C. B. 392; Hardcastle v. 8. Yorkshire Mly. Co. (1869), 4 H. & N. 67; Att.-Gen. v. Roe, (1915) 1 Ch. 235. 8 Fisher v. Prowse (1862), 2 B. & S. 770. 9 (1867), L. R. 2 Ex. pp. 320, 322. 314 INJUKIKtj TO iSERVXTUDES. [cHAP. IX. What damage is sufBcieut. Whether injury to business by obstructing highway is sufficient . that in order to entitle a plaintiff to maintain an action, he must show a particular damage suffered by himself over and above that suffered by all the Queen's subjects. . . . He and he only can maintain an action for an obstruction who has sustained some damage peculiar to himself, his trade, or calling. A mere passer-by cannot do so, nor can a person who thinks fit to go and remove the obstruction." 5. The special damage that is necessary and sufficient to support an action may be some injury to person or property, as when the plaintiff has broken his leg by falling over an obstruction in the highway; or it may be an injury to his pecuniary interests, as when he has incurred expense or suffered pecuniary loss by being prevented from using the highway. Thus, in Rose v. Miles^° the plaintiff, who com- plained of the obstruction of a navigable canal, was held to have a good cause of action on proving that he had been comjDclled to unload his goods from barges and carry them overland, thereby incurring additional expense. So in Iveson V. Moore^'^ it was held to be sufficient special damag'c that the plaintiff, a coal-owner, had incurred loss in his business by being prevented from carrying his coal from his pit along the highway. So in Camphdl v. Corporation of Padding- ion^- the occupier of premises abutting on a highway was held to have a good cause of action for the wrongful erection in the highway of a stand which obstructed the view of the highway from his windows and so prexented him from making profitable contracts for the use of his premises for viewing a jJublic procession. 6. It is commonly said that no action will lie if the only special damage proved is an injur}- to the plaintiff's business, due to the fact that the obstruction to the highway has hindered the public from resorting to his business premises. In other words, it is said that thq special damage must be suffered by the plaintiff because he has been prevented from using the highway as beneficially as heretofore, and not 10 (1815), i JI. & S. 101. 11 (1699), 1 Ld. Kayni. 486; 12 Mod. 262. 12 (1911) 1 K. B. 809. SECT. 91] NUISANCE TO A HIGHWAY. 315 merely because other persons have been so hindered', even though the result of their hindrance is a loss suffered by himself. The opposite, indeed, was decided by the Court of Common Pleas in Wilkes v. Hunger jord Market Co.,^^ but this case is commonly considered as having been over- ruled by the House of Lords in Ricket v. Metropolitan Rly. 60 M It is to be remarked, however, that there is nothing in the decision of the House of Lords in this case which is inconsistent with the Hungerford Market case, and that the observations made upon the latter case are dicta unnecessary to the matter in hand. Ricket' s case decides merely that on the true interpretation of the Lands Clauses Act and the Raihvays Clauses Act claims to compensation under these Acts are limited to damage done to the property affected, and do not extend to damage done to the goodwill of a business. i-* It is submitted, therefore, that the question still i remains open, and that it is worthy of serious consideration whether damage done to the plaintiff in his trade by the illegal obstruction of a highway is not an actionable wrong. ^'^ I § 92. Absolute Liability for Danger to Highway. 1 . Any person who procures or authorises the doing in He who any highway of any dangerous act other than the use of the danger in highway for ordinary purposes of passage is vicariouslj' liable highway is for any damage caused by the negligence of those emplojed liable for in the doing of that act, whether they are his servants or not. "nfepfndent He is similarly liable for the negligence of auj- person em- contractor, ployed by him to take the precautions necessary to prevent the mischief which may ensue from anj- such dangerous act. This is another instance of those rulas of absolute or vicarious liability of which we have already considered 13 (1835), 2 Bing. N. C. 281. li (1867), 2 H. L. 175; see Beckett v. Midland Rly. Co. (1867), L. E. 3 O. P. p. 85, per Willea, J. ; Eagle v. Charing Cross Rly. Co. (1867), L. R. 2 C. P. p. 650, per Montague Smith, J. 15 See Lord Chelmsford's explanation of Bicket's case in Metropolitan Board of Works v. McCarthy (1874), 7 H. L. at pp. 256, 259. 16 See also Rose v. Groves (1843), 5 M. & G. 613; Fritz v. Jlobsmi (1880), 14 Oh. D. 542; Iveson v. Moore (1699), 1 Ld. Raym. 486. «^16 INJURIES TO SERVITUDES. [cHAP. IX. several. The leading authority for it is Penny v. Whnhledon Urban CoiincilA In this case the defendant district council employed a contractor to repair a highway. In carrying out the work he negligently left on the road a heap of soil un- lighted and unprotected. The plaintiff, walking along the road after dark, fell over this obstruction and was injured; and it was held by the Court of Appeal that the defendant council was responsible for the negligence of the contractor thus employed by them. A. L. Smith, L. J., quotes with approval the reasoning of Bruce, J., in the Court below r^ "The principle . . I think, ds this: that when a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precau- tions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and that if the necessary precautions are not taken, lie cannot escape lia- bility by seeking to throw the blame on the contractor." Sio in Holliday v. National Telephone Co.^ the defendant company was held liable on the same principle for the negli- gence of the servant of a plumber (an independent contractor) employed by them to do work in a public street. This servant had, by dipping a benzoline lamp into a caldron of molten solder, caused an explosion which scattered the solder into the air and so injured the plaintiff, a passenger in the highway. So in Tarry v. Ashton^ the occupier of a house abutting on the street Avas held liable for injury caused to the plaintiff by the fall of a lamp suspended over the doorway, although he was guilty of no fault, the only negligence being that of an independent contractor whom he had recently employed to put the lamp in repair. ^ 1 (1899) 2 Q. B. 72. 2 (1898) 2 Q. B. p. 217. 3 (1899) 2 Q. B. 392. ^ (1876), 1 Q. B. D. 314. ^ See also, for applications of the same principle. Gray v. Pullen (1864), 5 B. & S. 970 (drain constructed and roadway insufficiently restored); Sole v. Sittingbourne Ely. Go. (1861), 6 H. & N. 488 (defec- tive bridge erected so as to obstruct canal) ; The Snark, (1900) P. 105 (wreck in navigable river insufficiently Hghted by the negligence of an independent contractor) ; Clements v. Tyrone County Council, (1905) SECT. 92] LIABILITY FOR DANGER TO HIGHWAY. 317 2. This jule of vicarious liability does not extend to dangers Aiiter with incidental to the ordinary use of a highway for purpasas of Mghw^^ of traffic. He who creates or authorises a danger of this kind does not do so at his peril, hut will answer only for his own personal negligence and for that of his servants. If I engage a cab, the cabman is not my servant, and I am not responsible to persons who may be run down by his negligent driving.^ So if I emplay a carrier to carry goods for me through the streets, I am not responsible for the carelessness with which he does it. 3. The liability in question is not independent of all negli- No liability gence whatever. It is merely independent of the personal negWence negligence of the defendant or his servants. It is a case of on part of vicarious liability for the negligenoe of independent con- tractors. If, in the case of work being lawfully done in the highway, an accident happens without any fault on the part of any one, he who authorised the work is free from all responsibility. Thus, in Lambert v. Lowestoft Corporation^ the defendant corporation was held not liable for the giving- way of a sewer in the street, without any proof of negligenoe on the part of any one in the construction or maintenance of it. So the occupier of a building adjoining the highway is not responsible for its dangerous condition if caused by the act of a stranger, unless the occupier with knowledge oir reasonable means of knowledge of its dangerous condition suffers the nuisance to continue.^ 4. It does not clearly appear how far, if at all, the rule of I^angeroua SfCbS on 2 I. B. 415, 542. The case of Rardaher v. Idle District Council, (1896) 1 Q. B. 335, in which the council was held liable for the escape of gaa from mains in the street into the plaintiff's house, is probably to be regarded as an application or extension of the rule in Rylands v. Pitcher, as to which, see supra, s. 67. The case of Pickard v. Smith (1861), 10 O. B. (N. S.) 470, in which the occupier of refreshment rooms in a railway station was held liable for the negligence of a coal merchant who, in delivering coals to the defendant, left unfastened a ooal-plata upon the adjoining platform, is apparently to be taken as deciding that the same rule as to vicarious liability for dangers to a highway or navigable river extends to all places in which there is a public right of access or entry. 6 Quarman v. Burnett "(1840), 6 M. & W. 499. ' (1901) 1 Q. B. 590. See also Blijth v. Birmingham Waterworks Co. (1856), 11 Ex. 781. 8 Barjper y. Herbert, ,(imy 2 K. B. 633. 318 INJURIES TO SKEVlTaOKS. fCHAP. IX. premises adjoining a highway . Collateral negligence. vicarious liability for dangerous acts authorised to be don© in a highway extends to dangerous acts authorised to be done on premises adjoining a highway, whereby injury accrues to passengers. Possibly the rule applies to such cases if the defendant is the occupier of the premises, and so is under a continuing duty to see that operations there carried on, even by independent contractors, are conducted with due care. The rule, however, can scarcely extend further. If I employ a contractor to manufacture explosi\es for me and his factory adjoins a high^\a3', I can hardly be held vicariously liable for an explosion whereby passengers on the highway come to harm, even though that explosion is due to the negligence of the contractor or his servants. 5. It has often been said that vicarious responsibility for the negligence of independent contractors does not extend to what is termed casual or oollateral negligence. It is difficult, however, as the authorities stand, to define the precise nature of the distinction thus indicated. In Holliday v. National Telephone Company^ (the case before cited in which molten solder was scattered by the explosion of a benzoline lamp) judgment was given for the defendant in the Court below on the express ground that the negligence of the plumber was merely collateral. "The act," said Wills, J.,^° "is about as typical an instance of negligence merely casual, collateral or incidental, as can well be conceived." Nevertheless, the Court of Appeal disagreed with this view of the case and gave judgment for the plaintiff. In tlie case of Reedie v. London and N. W RIij. CoM the defendants were held not liable for injury caused to a passenger in the highway upon whom a workman employed by their contractor dropped a brick while building a railway bridge. This has been re- garded as an example of collateral negligence, but it would seem impossible to reconcile this decision with the case of Holliday v. National Telephone Co.^- Probably the rule as to collateral negligence means nothing more than that the negligence required to impose liability upon the employer 9 (1899) 1 Q. B. 221. i° Ihid. p. 228. n (1849), 4 Ex. 244. 12 See the comments of Sir F. Pollock in 80 R. R., Preface, p. vi. SECT. 93] LIAHILITV KOli NON-UKPAIR OF ROADS. 319 of an independent contractor must be negligence committed in tho doing of the dangerous act it&elf which he is employed to do in tho high-\vay, and that negligence in other operations which, though oonnocbed with that work, are not themselves of a kind to create vicarious liability, is not sufficient. Thus if the defendant employs a contractor to make an excavation in a street, the defendant will be responsible for the negli- gence of tlie contractor in failing to light or guard the exca- vation, but will not be responsible for his negligence in carting materials to or from the scene of the operations. The latter work is equally within the scope of the contractor's employment, and if the person so employed was a servant, his employer would be responsible, whereas it is otherwise with an independent contractor.^'' § 93. Liability for the Non-Repair of Roads. 1 . In tho absence of an cxjDress statutory jjrox ision to that No liability effect, no action will lie against any local authority intrusted ^^^ tonon^ with the care of highways for damage suffered in consequence repair of of the omission of the defendants to perform their statutory duty of keeping the highway in repair; but this exemption from liability extends only to cases of pure non-f easanoe, and the local authority is responsible in damages for any nctixe ' misfeasance by which tho highway is rendered dangerous. 2. This is a particular application of the general principle History of which will be considered later, that no action \\'ill lie for the breach of a statutory duty unless the Legislature in creating the duty intended this remedy to be available. At common law the duty of repairing highways rested upon the inhabit- ants of the parish, and was enforceable by way of indictment only, and not by way of action at the suit of an individual, 13 See further as to collateral negligence, Sole v. Sittingbourne Bly. Co. (1861), 6 H. & N. at p. 497; DtdUm v. Angus (1881), 6 A. C. at p. 829; Hardaker v. Idle District Council, (1896) 1 Q. B. at p. 340; Penni/ v. Wimbledon Urban Council, (1899) 2 Q. B. at p. 76; Padbury V. Bolliday and Greenwood, Ltd. (1912), 28 T. L. R. 494. For further references to this form of vicarious liability for dangers in highways, see 3. 33, supra. 320 INJURIES TO SERVITUDES. [gHAP. IX. Tramways. hitler with act of mis- feasance making road dangerous. Non-repair of artificial structure in road. even though he had suffered special damage. ^ Nor would an action lie against a surveyor of highways appointed under statutory provisions, it being held that the Legislature did not intend to subject the surveyor, who was only the agent of the parish in this matter, to a liability from which the parish itself was free.- Finally, when the care of highways was transferred by statute to corporate local authorities, the same rule of exemption was applied to them. The duty of repair, in being thus transferred from the inhabitants at large to a body corporate, has not changed its nature, nor does the breach of it now, any more than formerly, confer any right of action upon injured individuals. ^ 3 . This exemption from liability does not extend to bodies, such as tramway companies, which are empowered to place lines or other structures in the streets on the terms that they shall keep the adjoining portions of the roadway in good repair. In such cases an action will -lie at the suit of any person injured through the breach of this obligation.^ 4. The rule of exemption applies only to cases of mere passive non-feasance — mere omission to repair. It does not extend to an active misfeasance — a positive act by which a danger is wrongfully caused in the highway and by which the plaintiff has come to harm. Local authorities are saved from any civil liability for merely failing to do what ought to have been done, but are liable at common law for doing that which ought not to have been done.^ It is a misfeasance within the meaning of this rule, and not a mere non-feasance, to erect or place in the highway aiiy 1 JRussell V. Men of Devon (1788), 2 T. R. 667. 2 Younff V. Davis (1862), 7 H. & N. 760. ^ Cowley V. Newmarket Local .Boarrf, (1892) A. C. 345; Municipality of Piotou V. Geldert, (1893) A. C. 524; Municipal Council of Sydney v. Bourhe, (1895) A. O. 433; Maguire v. Corporation of Liverpool, (1905) 1 K. B. 767. i Dublin Tramways Co. v. Fitzgerald, (1903) A. C. 99. 5 Foreonan v. Mayor Of Canterbury (1871), L. R. 6 Q. B. 214; Penny V. Wimbledon Urban Council, (1899) 2 Q. B. 72; Whyler v. Bingham Mural Council, (1901) 1 Q. B. 45; Corporation of Shoreditch v. Bull (1904), 90 L. T. 210; McClelland v. Manchester Corporation, (1912) 1 K. B. 118; Hurst v. Taylor (1885), 14 Q. B.D. 918; Thornpsony. Brad- ford Corporation, (1915) 3 K. B. 13; mil v. Tottenham V'rban GouncU (1898), 15 T. L. R. 53. ■ '.• <: SECT. 93] LIABILITY FOR NON-REPAIR OF ROADS. 321 ai'tifioial structure which is not itsielf a part of the highway, f and then to allow tliat structure, as opposed to the highway itself, to fall into a dangerous state of disrepair. ThuB, in Whifex. Hindley Board of Health,^ a local hoard of health, having charge both of the road and of the sewers beneath it, was held liable for allowing the grating of a sewer to become so worn as to become a nuisance to the highway, whereby the plaintiff suffered an injury. This decision was approved in BlacJcmore v. Vestry of Mile End,'' in which the cause of mischief was the cover of a water-meter. Similarly, in The Borough of Bathurst v. Macpherson^ (explained, with the correction of certain erroneous dicta, in Municipal Council of Sydney v. Bourke^) the defendant corporation had con- structed a drain below the roadway, and had allowed this drain to fall into disrepair, whereby the surface of the road was so weakened that it fell in and so caused injury to the plaintiff; and it was held that this was a misfeasance on the part of the corporation, and not a mere omission to keep the road in repair, and that they were liable in damages. It seems that a bridge is not an artificial structure in the No liability highway within the meaning of this rule, but is itself a part of bridge. of the highway, and that there is no liability for its non- repa.ir.io 5. If the danger is caused not by any defect in the arti- Artificial ficial structure itself, but solely by the wearing away or dis- dangerous repair of the highway, whereby the structure is rendered a o°ly because '^ D ./ J ... . oi non-repair source of danger, there is no liability at all: none in respect of road. of the artificial structure, for it is not defective; and none in respect of the road, for the case is merely one of non-feasance. Thus, in Thompson v. Mayor of Brighton,^^ overruling Kent V. Worthing Local Board,^^ the plaintiff was riding along a public road, and his horse's foot struck the cover of an entrance to the sewer, whereby the horse was thrown down and injured. The cover was in perfect order, but projected an inch or so 6 (1875), L. R. 10 Q. B. 219. '' (1882), 9 Q. B. D. 451. 8 (1879), 4 A. O. 256. ■ » (1895) A. 0. 433. 10 Municipality of Pidtou v. Geldert, (1893) A. C. 524. " (1894) 1 Q. B. 332. 12 (1882), 10 Q. B. D. 118. S. 21 322 INJUEIES TO SERVITUDES. [ClIAP. IX. above the surface of the road owing to the wearing away of the latter. The defendants were held not liable, on the ground that the cause of the accident was a mere omission to repair the road. " Apart from the state of the road," says Lindley, L. J.,13 "no breach of duty can be imputed to the defendants, and consequently no cause of action has accrued to the plaintiff. But for the only breach of duty which can be imputed to the defendants, I am now compelled to say that no action lies. The law on this subject is in my opinion very unsatisfactory ; but I cannot on that account declare it to be different from what it is." Where the artificial structure which causes the accident has been placed in the highway, not by the local authority having charge of the highway, but by some other person or body lawfully authorised thereto — for example, a waterworks company or a tramway company — the same principles apply. If the structure is itself in disrepair, the persons who placed it there are responsible for it;!* and if the structure is in good order, but dangerous through the disrepair of the road, no one is responsible at all,^^ unless, indeed, as in the case of a tramway company, the persons authorised to plaoe the structure in the road have at the same time a statutory obli- gation imposed upon them to keep the adjoining portions of the road in good repair, in which case an action for damages will lie for any omission so to do.^^ 13 (1894) 1 Q. B. at p. 337. 1* Chapman v. Fylde Waterworks Co., (1894) 2 Q. B. 599; aliter when the responsibility is otherwise determined by any statutory provi- sion. Batt V. Metropolitan Water Board, (1911) 2 K. B. 965. 15 Moore v. Lambeth Waterworks Co. (1886), 17 Q. B. D. 462. 16 Dublin Tramways Co. v. Fitzgerald, (1903) A. C. 99; Hartley v; Moohdale Corporation, (1908) 2 K. B. 594. Even in the absence of anv such express statutory obligation it may be that in certain classes of cases there is an implied or common law obligation of repair imposed upon persons who, under statutory or other lawful authority, interfere with the highway, and that the breach of that obligation is an action- able tort. Thus, in Oliver v. North Eastern Maihoay Co. (1874), L. E. 9 Q. B. 409, the defendant company was held liable in damages for an accident due to the non-repair of a level crossing, although under no express statutory duty to repair. If this decision is reconcilable at all with Thompson v. Mayor of Brighton, (1894) 1 Q. B. 332, and Moore V. Lambeth Waterworks Co. (1886), 17 Q. B. D. 462, it must be regarded as an exception to the general principle of non-liability established by these cases, and as based on an implied obligation of repair which SECT. 94] WRONGFUL DAMAGE. 323 Other Injuries to Land. § 94. Wrongful Damage. We have now considered four classes of injuries to land — Wrongful 1 J 1 • • • ITT I. damage to namely, trespass, dispossession, nuisance, and disturbance 01 land. servitudes. This classification, however, although it includes almost all cases, is not exhaustive. We must recognise a further injury of small importance and infrequent occur- rence, which has no recognised title, but which we may term wrongful damage to land. It consists in any act done without lawful justification, and not amounting to trespass, nuisance, or the disturbance of a servitude, whereby physical harm is done to land in the possession of the plaintiff. In the immense majority of cases physical harm to land is done by way of one of the forms of injury already considered by us; but occasionally it is done without bringing the wrong- doer within the scope of anj' of these causes of action. An example is wilful or negligent injury, as by fire, caused by a person lawfully on the plaintiff's premises, such as a guest, workman, servant, or licensee. This is not trespass because of the lawful entry; and not nuisance because the cause of harm originates on the land itself, and is not a wrongful invasion from without. § 95. Injuries to Reversionary Interests. 1. Hitherto, in dealing with the injuries of trespass, injuries to nuisance, disturbance of servitudes, and wrongful damage, ^■^JT^i^'^^ we have considered exclusively the rights of action thereby vested in the occupier of the land. For these injuries are essentially injuries to the possession of land, and not to the ownership of it. It remains, therefore, to consider the position of a reversioner — using that term in a wide sense to include any person having a lawful interest in land but exists in some cases of interference with the highway and not in others. See also Hertfordshire County Council v. Great Eastern Railway, (1909") 1 K. B. 368. 21(2) 324 INJURIES TO SERVITUDES. [cHAP. IX. Waste. Reversioner can sue for permanent injury onlj^ not the present possession of it, the typical case being that of a landlord whose land is in the occupation of a tenant. Injuries to reversionary interests are of two kinds, accord- ing as they are committed, (1) by the tenant or other person in possession of the land, or (2) by a stranger. Injuries of the first kind may be included under the generic title of Waste, which may be defined as unlawful damage done or permitted by the occupier of land as against those having reversionary interests in it. An account of the law of waste does not pertain to the law of torts, but is a branch of the law of property, and in particular of the law of landlord and tenant : for the obligations of the occupier to the reversioner are dependent on the nature of the proprietary or contractual relation existing between them in the particular case, and cannot be profitably considered in a general account of the law of torts. It is otherwise with the second class of injuries to rever- sionary interests — viz., those which are committed not by the occupier, but by strangers. These injuries are governed by general principles which properly pertain to the law of torts. The question, therefore, which we have now to consider is this: In what circumstances will an action lie at the suit of a reversioner for an act done in respect of the land by a stranger who is not in possession of it ? 2. A reversioner may sue for any trespass, nuisance, dis- turbance of servitudes, or wrongful damage if, and only if, it actually affects his reversionary interest; and in general this is so only if the effects of the injury so committed are permanent. None of these wrongs is per se a wrong against the reversioner or actionable at his suit. It is necessary for him in every case to prove not merely that such a wrong has been committed, but also that his reversionary interest has been actually affected by it, so that it is a wrong against him and not merely against the possessor. There is more than one way in which a reversionary interest may be so affected, but in general it is affecbed only by reason of the permanence of the consequences of the wrongful act. Temporary conse- quences give a cause of action only to the occupier; per- SECT. 95] INJUKIES TO REVERSIONAKY INTERESTS. 325 mauent consequences give a cause of action both to him and to the reversioner. Consequences are permanent in this sense if they are of such a nature that they will continue to affect the land, even after the interest of the reversioner has become an interest in possession. In Rust V. Victoria Graving Dock^ it is said by Cotton, L. J. : " It is an undoubted general rule that a reversioner or other person who has not an interest in possession in the land cannot recover any damages unless it is shown that the injury to the land is of a permanent character, and will be injurious to the land when his estate comes into possession." So in Shelf er v. City of London Electric Lighting Co.^ Lindley, L. J., says: " The common law decisions show that an action by a reversioner for an injury to his reversion will lie if he can prove actual damage to his reversion, or as some exprfess it, an injury of such permanent nature as to be necessarily injurious to his reversion." Accordingly a mere trespass, unaccompanied by any physical injury to the land, is not actionable at the suit of a reversioner, even though / committed under a claim to a right of way;^ neither is a I temporary nuisance, such as noise or smoke, which causes no enduring physical harm to the property.**^ It is otherwise, however, if permanent physical harm is done, whether by way of trespass, nuisance, or otherwise: as, for example, the destruction of a building, the removal of soil, the cutting of timber, or structural damage done to a building by the re- moval of support.^ 3. In applying this rule we must be careful not to con- Permanent and continu- 1 (1887), 36 Oh. D. p. 130. 2 (1895) 1 Oh. p. 318. 3 Baxter v. Taylor (1832), 4 B. & Ad. 72; Oooper v. Orabtree (1882), 20 Oh. D. 589. * Simpson v. Savage (1856), 1 O. B. (N. S.) 347; Jones v. CJiappM (1875), 20 Bq. 539; Mott v. Shoolbred (1875), 20 Eq. 22; Mumford v. Oxfordshire Rly. Co. (1856), 1 H. & N. 34. * Alston V. Scales (1832), 9 Bing. 3; Shelf er v. Oity of London Electric Lighting Co., (1895) 1 Ch. 287; Tucher v. Newman (1839), 11 A. & E. 40; Rust V. Victoria Graving Dooh (1887), 36 Oh. D. 113. In exoep>- tional cases, however, even a temporary diaturbanoe of possession may amount to an injury to the reversion, as in Bell v. Midland Sly. Co. (1861), 10 O. B. (N. S.) 287, in which the royalties payable by a tiBnant to his landlord were diminished by the wrongful disturbance of a right of way appurtenant to the land. 326 INJURIES TO SERVITUDES. [CHAP. IX. ing injunes distinguiahed. ReTersioner may sue to prevent pre- scriptive rights. found a permanent injury with a continuing one. A per- manent injury is a completed wrong the consequences of which will endure until the interest of the reversioner has fallen into possession, and for which accordingly he has a present right of action — e.g., the destruction of a building on land in the possession of the plaintiff's tenant.^ A continuing injury, on the other hand, is one which is still in process of being committed — e.g., a nuisance caused by the smoke or noise of a factory. We have already seen that even the occupier himself cannot recover damages for the future, continuance of such a continuing injury, howsoever probable that continuance may be.^ He recovers damages only for the past; and if the wrong continues, ho may sue a second time on a new cause of action thus arising. Since this is the case with the occupier, a fortiori it is so with the reversioner also. He must wait until his interest falls into possession, and then, if the injury still continues, he will have his action. Nor does anything turn upon the degree of probability of its continuance. Whether probable or improbable, he cannot sue for prospective damage any more than the occupier himself can. 4. Notwithstanding the preceding rule as to the necessity of permanent damage, a reversioner may sue for any continu- ing injury Avhich by virtue of the law of prescription will by its continuance prejudicially affect his reversionary interest in the land by creating or destroying a servitude in relation thereto . On this fjrineiple it has been repicatedly decided that a reversioner may sue for an obstruction to ancient lights or for interference with a right of way.'' The operation of the rule depends on the law of prescription. If by that law the act complained of will ojDcrate to the prejudice of the 6 Save when damages are awarded in substitution for an injunction as the price of the legalisation of future continuance. Supra, s. 37 (9); ' Jesser v. Gi-fford (1767), 4 Burr. 2141 ; Metropolitan Association V. Fetch (18'58), 5 0. B. (N. S.) 504; Slutdwell v. Hutchinson (1831), 2 B. & Ad. 97; Mott v. Shoolbred (1875), 20 Eq. 22; Kidgill v. Moor (1850), 9 C. B. 364. The reasoning in several of these cases is unsatis- factory owing to the fact that insufficient attention has been given to the distinction between the present rule as to the effi«ot of preacriptiviB rights and the rule already considered as to the necessity of permanent damage. SECT. 95] INJUKIES TO REVERSIONARY INTERESTS. 327 l^laintiff notwithstanding the fact that he is not in present occupation of the land, then he has a right of action given him by which he can protect himself against this mischief. But if, on the contrary, the fact that he is not in possession will by the law of prescription prevent any prejudice accruing to him, he has no present right of action. ^ A detailed con- sideration of the scope and application of this rule, therefore, pertains to the law of prescription rather than to that of torts, and would here be out of place. ^ 8 See, for example, Baxter v. Taylor (1832), 4 B. & Ad. 72; Mott \ . Shoolbred (1875), 20 Eq. 22. 9 See Gale on Easements, pp. 192-200, pp. 550-556, 7th ed. 328 CHAPTEE X. CONVERSION AND OTHER INJURIES TO CHATTELS. Conversion defined. Three modes of conversion. § 96. History of the Action of Trover. 1 . The wrong of conversion is so dependent for a due under- standing of its true nature and incidents upon a knowledge of its origin and historical development, that before attempting any systematic exposition of the present law it is necessary to give an outline of the mode in which it has come into existence. 2 . If we seek for a definition of this wrong, we may find it in the form of declaration, provided for the action of trover by the Common Law Procedure Act, 1852. ^ By this enactment the form of the action was brought into harmony with its true scope and purpose by the abolition of the old fictitious allegations on which it was based; and a new form of de- claration was provided, in which it was simply alleged that "the defendant converted to his own use, or wrongfully deprived the plaintiff of the use and possession of the plain- tiff's goods." This is the essence of the matter. The Avrong of conversion consists in any act of wilful interference with a chattel, done without lawful justification, whereby any person entitled thereto is deprived of the use and possession of it. There are three distinct methods in which one man may deprive another of his property, and so be guilty of a con- version and liable in an action of trover — (1) by wrongly taking it, (2) by wrongly detaining it, and (3) by wrongly disposing of it. In the first case the wrongdoer acquires a possession which is wrongful ab initio. In the second he acquires possession rightfully but retains it wrongfully. In 15 & 16 Vict. 0. 76, s. 49, and Sohed. B. SECT, 96] HISTORY OF THE ACTION OF TROVER. 329 the third case he neither takes it wrongfully nor detains it, but so acts that it is lost to the true owner. Now, although in modern law the term conversion covers all these three cases, it was originally limited to the third of them'. To convert goods meant to dispose of them, to make away with them, to deal with them in such a way that neither owner nor wrongdoer has any further possession of them: for example, by consuming them, or by destroying them, or by selling them, or otherwise delivering them to some third person. Merely to talce another's goods, however wrongfully, was not to convert them. Merely to detain them in defiance of the owner's title was not to convert them. Money was converted to the use of the thief when it was spent by him; food, when it was eaten; jewels, when they were pawned or sold. The fact that conversion in its modern sense includes all three modes in which a man may be wrongfully deprived of his goods, and not one mode only, is the outcome of a process of historical development whereby, by means of legal fictions and other devices, the action of trover was enabled to extend its limits and appropriate the territories that rightly belonged to other and earlier forms of action. 3. Corresponding to these three modes of wrongful de- privation there were three distinct forms of action provided by the law — (1) trespass de bonis asportatis, for wrongful taking; (2) detinue, ior wrongixil detention; and (3) trover, for ^VTongf ul conversion (that is to say, disposal) . Of these three actions, trover is the most recent in origin. Trespass and detinue date from the beginnings of our legal system, but trover is a later invention . An early instance — perhaps the earliest — occurs in Y.B. 18 Ed. IV. 23 pi. 5: "In an action on the case the plaintiff declared how he bailed certain boxes of money to the defendant to be safely kept, and how the defendant broke them et eUx convert a son oeps." Two cases of a similar nature are reported in Y.B. 20 Hen. VII. 4 pi. 13, and 8 pi. 18. In the thirty-third year of Henry VIII. we hear of an " action on the case that the defendant found the goods of the plaintiff and delivered them to detinue, and trover. 330 CONVERSION, [chap. X. persons unknown. "^ A similar instance occurs in the following year: "Action on the case that the goods of the plaintiff came to the defendant's hands {devenenmt ad manus), and he wasted them."^ In the fourth year of Edward VI. we iind the action in its modern form: "Action on the case that the plaintif! was in possession of such and such goods ut de propriis et ilia perdidit et def. ilia invenit et ilia in usum propriwn convertit."^ It is not to be supposed, however, that there was no remedy at all for a conversion before the invention of trover in the fifteenth centuiy . Before this remedy was heard of, its work was doubtless done by detinue. For the defendant in de- tinue, charged with unjustly detaining the goods of the plaintiff, was not suffered to object that he had already con- verted and disposed of them, and therefore that he no longer detained them. In Jones v. Dowle^ this very defence was pleaded in detinue, and it was said by Parke, B. : " Detinue does not lie against him who never had possession of the chattel, but does lie against him who once had but has im- properly parted with the possession of it." So in Reeve v. Palmer^ it is said: "All the authorities from the most ancient time show that it is no answer to an action of detinue, when a demand is made for the redelivery of the chattel, to say that the defendant is unable to comply with the demajrd hy reason of his own breach of duty. " This being so, it is clear that detinue was available as a remedy for wrongful conversion as well as for wrongful detainer. Wlw, then, Reasons for Was the new remedy of trover invented ? The answer is to be found in the fact that detinue was an exceedingly unsatis- factory form of action, for the defendant had the right of defending himself by wager of law, a form of licensed per- jury which reduced to impotence all proceedings in which it was allowable. The ingenuity of pleaders, therefore, was devoted to avoiding all forms of action in which wager of law 2 Brooke's Abridg'. Action sur le case, pi. 109. 3 Ibid. pi. 103. ■1 Ibid. pi. 113. 5 (1841), 9 M. & W. 19. 6 (1858), 5 0. B. (N. S.) at p. 91. the invention of trover. SECT. 96] HISTORY OV THK ACTION OF TROVER. 331 was admitted, and to inventing other forms of action which should take their place, and in which a plaintiff might have the benefit of the verdict of a jury. Hence the action of trover as a remedy for conversion. Conversion came to be treated for the first time as an independent wrong — a quasi- trespass, to be sued for in a special form of trespass on the case . It was no longer treated as a mere incident of a wrong- ful detention, to be sued for in the action of detinue. For trespass on the case led to the verdict of a jury on a plea of not guilty, and a plaintiff might hope for justice; but detinue led to nothing but defeat by the defendant's wager at law. Just as indebitatus assumpsit was substituted for debt, so trover was substituted for detinue. 4 . The declaration in trover was simply a variant of the The form of declaration in detinue, the only material difference being that trover**'"" "' in trover the defendant was charged with wrongly converting the propertj- to his own use, while in detinue he was charged with unjustly detaining it. Detinue was of two kinds, dis- tinguished as detinue sur bailment and detinue sur trover. The former was the appropriate remedy when the property had come to the defendant's hands by a bailment or contract between the parties. The latter, or detinue sur trover — Avhich is not to be confounded with the action of trover itself — was appropriate when the defendant had found the goods, or indeed had come by them in any other fashion save by contract with their owner. These allegations of bailment or finding were, however, immaterial and untraversable.'^ It mattered nothing in what manner the defendant had obtained possession of the property. Indeed, the older mode of pleading was to make no allegation in the matter, save that the goods of the plaintiff had come to the defendant's hands {derenerunt ad manus) and were unjustly detained by him. In Y. B. 33 Hen. VI. 27 pi. 12 we find an action of detinue sur trover in which the specific allegation of finding (declara- tion per inventionem) is criticised as a novelty. The only issues Avere whether the goods were the property of the " Brooke's Abridg. I>etinue, pi. 50; Gledstane v. Ucwiit, 1 C. & J. 565; Chitty's Pleadings, I. 138; II. 428, 7th ed. 332 CONVERSION. [chap. X. Extension of the scope of trover. plaintiff, and Avhether the defendant unjustly detained them . The action of trover and conversion was modelled upon that of detinue sur trover The plaintiff alleged in his declara- tion (1) that he ^vas possessed of certain goods ut de bonis, fropriis ; (2) that he casually lost them, and that the defen- dant found them; and (3) that the defendant did not restore them, but wrongfully converted them to his own use. As in detinue, so in trover, this second allegation as to losing and finding was in most cases a mere fiction; in any case it was immaterial and un traversable . Nor was it ever essential. The plaintiff might have alleged a bailment instead of a loss and finding, thus modelling his declaration on detinue sur bailmeiif instead of on detinue sur trover. In Gumhleton V. Graft07i^ such a declaration irt trover was objected to, but held good. Or a general allegation of devenerunt ad mantis defendentis would have been good enough. It must not be supposed that the action of trover was specially or originally designed to meet the case of an actual loss and finding. The allegation of loss and finding was from the beginning merely a form of pleading imitated from the action of detinue. 5. Such, then, was the origin of the action of trover, and so far as we have gone with the story the matter stands thus : there are three modes in which a man may be deprived of his property, and three corresponding forms of action pro- vided for his relief. If his property is wrong-fully taken, he may sue in trespass; if it is wrongfully detained, he may sue in detinue; and if it is wrongfully converted, he may sue either in detinue, as was the older practice, or in trover in accordance with the new. No sooner, however, has trover become thus established than it begins to extend its boun- daries, and it very rapidly succeeds in appropriating almost the whole territory both of trespass and of detinue. It becomes a universal remedy applicable in all cases in which a plaintiff has been deprived of his goods, whether by way s Cro. Eliz. 781. SECT. 96] HISTORY OP THE ACTION OF TEOVER, 333 of taking, by way of detention, or by way of conversion in its proper and original sense. In every case of -wrongful taking the plaintiff might elect between trespass and trover, and in ever}- case of detention he might elect between de- tinue and trover. "We have now to see how this extension was effected. 6. Conversion by Detention: Trover and Detinue. It ConverMou by is clear that a mere detention is not a conversion in the detention, original sense. Just as a man cannot both eat his cake and have it, so he cannot convert another's goods to his own us.e and at the same time detain them. Nevertheless it was settled at an early date in the history of trover that a neglect or refusal to deliver up a chattel, after demand made, is evidejice of a conversion — evidence, that is to say, that the defendant has already made away with the property and therefore cannot and does not restore it. Moreover, this evi- dence was received as sufficient and conclusive in the absence of any proof that the failure to deliver was justified. The defendant was not suffered to prove that, although he had unlawfully refused to deliver up the property, he had not converted it but still retained it. Juries were directed as a j matter of law to find a conversion on proof of demand and refusal without lawful justification. Blackstone,^ speaking ' of a finder of goods, says, " He must not convert them to liis own use, which the law presumes him to do if he refuses to restore them to the owner." So in Alexander v. Southey^'^ Best, J., says: " An unqualified refusal is almost always con- clusive evidence of a conversion." So in Coke's Reports r^i- " If A brings an action on the case against B upon trover and conversion of plate, jewels, &c., and the defendant pleads not guilty, now it is good evidence prima, facie to prove a conversion that the plaintiff requested the defendant to deliver them and he refused, and therefore it shall be presumed that ho has converted them to his use."^" So soon as this rule has been established, it is clear that 9 Comm. iii. 153. ^ (1821), 5 B. & Aid. p. 250. " X. 56b. 12 See, for what is perhaps the earliest ease in which the rule was laid down, Eason v. Neioman, Ore. Eliz. 495. 334 CONVERSION. [chap. X. Detention not now mere evidence of conversion. trover has passed beyond its original scope, and has bocomei concurrent with detinue. These two forms of action have now become alternative remedies; every detention after demand made is now become a constructive or fictitious conversion • — a conversion in law, though not in fact^^ — on Avhich the plaintiff may bring his action of trover if he will, and so avoid the disadvantages inherent in detinue. This doctrine that a detention after demand is merely evidence of a conversion, and not a conversion itself, is often set forth as a subsisting rule of law oven at the present day . "The mere fact," it i,s said,^* "of a refusal in answer to a demand is never of itself a conversion, though it may be very strong evidence of it." Now that its historical basis has disajDpeared and been forgotten, however, such a statement is merely a souroe of complexity and confusion . It is necessary to acknowledge frankly that the term conversion is now used in a wide sense to mean any act by which another jjerson is deprived of his property, and that to detain property without lawful justification is a conversion of it, no less than to destroy it or to make away with it. There is no reason for retaining in our modern law a distinction which was in its origin merely a pleader's device to justify the use of trover instead of detinue. Even in comparatively early times we find Judges prepaxed to rationalise the law in this resjDect, and to eliminate the fictitious elements from the law of trover. Thus, in Baldivin v. Cole^^ Holt, C. J., says, " The very denial of goods to him that has a right to demand them is an actual conversion, and not only evidence of it as has been holden." This view, however, did not prevail, although there was much conflict on the point. ^^ 13 In Alexander v. Southey (5 B. & Aid. 247), Abbott, C. J., says: "Perkins v. Smith and Stephens v. Elwall were both cases of actual conversion by servants in disposing of goods the property of others to their master's use; but here the question is whether the refusal of the servants to deliver the goods in question amounts to a conversion of the property. This, therefore, is the case of a conversion arising by con- struction of laiv." 11 Clerk and LLndsell's Torts, p. 260, 6th ed. i^ 6 Mod. 212. 16 See Eason v. Neirman, Cro. Eliz. 493; Wilson v. Chambers, Cro. Car. 262; Mires v. Solebmj, 2 Mod. 242; 10 Co. Bep. 56b; Jsack v. Clarke, 1 RoUe, 126. SECT. 96] HISTORY OF THK ACTION OF TKOVEK. 335 Xotwithstandiug this extiMisiou of the original scope of Negligent trover, there remained even to the last one resiject in A>liich chattels not the action of detinue was of -wider application. Detinue ^xas conversion, available not only when thei'e was a real detention of a chattel (i.e., a refusal to deliver it, Avhile it still remained in the possession or ijower of the defendant), but also where the defendant was unable by his own fault to make delivery, whether this fault consisted in a wilful act of wrongful dis- position or in mere negligence leading to the loss or destruc- tion of the chattel. Thus, a bailee who negligently allowed the goods to be stolen from him, or to be destroyed while in his possession, could bo sued in detinue as for the iletention of them.^' But he could not be sued in trover aa for a oon- I version, for there was no conversion unless ho had wilfully . disposed of tlie propertj^ (as by delivering it to another person) or unless he refused to deliver it on request while he still had it in his po.ssession.i'^ 7 Conversion by Taking : Trocer and Trespass. Wo ha\e Conversion now seen how the new remedy of trover Avas extended to cover ^ "^^' the ground of detinue, and it remains to notice the process bj' which it became concurrent with trespass de bonis asportatis also. The allegations of loss and finding being immaterial and untraversable, it mattered nothing in what way the pixjperty came to the defendant's hands. Whether it was by bailment, or by finding, or by tortious taking was iiTelevant, if an actual or constructive conversion could be proved. Therefore, when goods were taken and converted, the plaintiff had an election either to sue in trespass for the taking, or, waiving the tree- pass, to sue in trover for the conversion. This was settled, not indeed without difiiculty, in the case of Bishop v. Viscountess Montagu :^^ " Although trespass lies, yet he may have this action if he will, for he hath his eleotion to bring either." So in Kinaston v. Moore .•2" " The losing is but a surmise and not material, for the defendant may take it in 1'' Jones V. Dowle (1841), 9 M. & W. 19; Seeve v. Palmer (1858), 5 C. B. (N. S.) 84. 18 Williams v. Gesse (18'37), 3 Bing. N. O. 849. 19 Oro. Eliz. S24; Cro. Jac. 50. 20 Cro. Car. 89. 336 CONVERSION. [CIIAP. X. tbe presence of the plaintiff or any other who may give suffi- cient evidenoe; land although he take it as a trespass, yet the other may charge him in an action upon tlie case on a, trover if he will." In Cooper v. Chitty^^ Lord Mansfield, says of the action of troiver; " In form it is a fiction, in sub- stance la remedy to recover the value of personal chattels wrongly converted by another to his own use. The form supposes the defendant may have come lawfully into the po6- session of the goods. The action lies and has been brought in many instances where in truth the defendant has got the possession lawfully. When the defendant takes them -\\Tong- fuUy and by trespass, the plaintiff, if he thinks fit to bring this action, waives the trespass and admits the possession to have been lawfully gotten." So it has been said: "When- ever trespass for taking goods will lie — that is, where they are taken wrongfully — trover will also lie."22 When trover is thus brought for what is in truth a trespass, the unlawful taking is itself sufficient and conclusive proof of a conversion; or, in other words, it amounts in itself to a sufficient oonstructire conversion to enable the action to be maintained A^ithout any further proof that the defendant converted the goods in faot. He who wrongfully took another's goods would not be permitted to deny that he had also con-^erted them; and he was in the same position in tills respect as he who detained them after the request. Nor was any request of restoration needed when the taking was unlawful. It was only when a defendant came lawfully into possession of the property that a demand and refusal was a condition precedent to the right of suing in trover. Thus it is said:23 "Where the possession is lawful, the plaintiff must show a demand and refusal to make a conversion. But if the possession was tortious, as if the defendant takes away the plaintiff's hat, there the very taking is a sufficient proof of the conversion." Had the law developed logically it would have maintained 21 1 Burr. p. 31. 22 Wilbraham v. Snow, 2 Wms. Saund. 47aa ; see also Ohitty's Plead- ing-, I. 172, 7th ed. 23 3 Salk. 365. SECT. 96] HISTORY OF THE ACTION OF TROVER. 337 to tlie end the position tliat an imla-\vful taking is merely evidence of a oou version, just as an unlawful detention is. This, however, was not so. At an early period we find it said without scruple or qualification that a tortious taking /■>>' a conversion,^! although to tliis day wo conlinue to sa->" of a tortious detainer that it is merely evidence of a con- \'ersion. This is an obvious lapse both from the history and tlie logic of the matter. If we use tlie tei-m conversion in its original and strict sense, it is clear that neither a taking nor a detention is anything moa-e than evidence; each amounts at the most to a constructive conversion, a conversion in la\\- though not in fact. While if we adopt the wider sense, and mean by conversion any deprivation of property, it is clear that both a taking and a detention are actual oon^^ersio]Is if there is no lawful justification for them, and that tliere is no distinction to be drawn between them. To say that taking is a conversion, but tliat detention is merely evidence of one, is to use the term conversion in two diverse senses, its old and its new; it is to retain the old historical theoi-y of trover in one case, and to abandon it in the other. 8. Such, then, is the histoiy of trover and of its relations to the earlier actions of trespass and detinue. We now pro- ceed to consider systematically the modern law of conversion. § 97. Conversion denned. 1. A conversion is the act of wilfully interfering with any Conversion in chattel, without lawful justification, whereby any person ^^"^"^^ • entitled thereto is deprived of the possession of it. 2. In order to amount to conversion the act done with No conversion respect to the chattel must have been one of wilful and wrong- interference. ful interference. He who so interferes with a chattel acts at his own risk, and if the loss of the chattel does in fact (whether intended or not) result from his act he is liable for the value of it in an action of trover. In the absence, how- ever, of a wilful and wrongful interference there is no con- 2* See, for example, Bruen 'f. Roe, 1 Sid. 264. s. 22 338 CONVERSION. [chap. X. Mistake no defence. Remoteness of damage no defence. version, even if by the negligence of the defendant the chattel is lost or destroyed. Thus, a carrier or other bailee who by accident loses the goods intrusted bo him was by the old practice not liable in trover, but merely in detinue, case, or assumpsit.! But if he wrongfully and mistakenly delivered the chattel to the Avrong person, or refused to deliver it to the right person, he could be sued as for a conversion. This distinction is not a mere matter of form or a technicality' of the old law of procedure, but a subsisting principle of modern substantive law. 3. Although a conversion is necessarily an intentional wrong in the sense already explained, it need not be know- ingly wrongful. A mistake of law or fact is no defence to any one who intentionally interferes with a chattel. He does so suo periciilo, and takes the risk of the existence of a suihcient lawful justification for the act; and if it turns out that there is no justification, he is just as responsible in a,n action of trover as if he had fraudulently misappropriated the property. " Persons deal with the property in chattels or exercise acts of ownership over them at their peril. "^ Thus, an auctioneer who honestly and ignorantly sells and delivers property on behalf of a customer who has no title to it is liable for its value to tlie true owner, even though he has already paid the proceeds of the sale to his own client.^ So in the leading case of Hollins v. Foivler^ the defendant, a cotton broker, honestly purchased from a person who had obtained possession of it by fraud certain cotton belonging to the plaintiff, and forthwith sold and delivered it to a manufacturer, receiving merely a broker's commission on the transaction. On being sued in trover by the true owner, the broker was held by the House of Lords to have no defence and to be liable for the full value of the property. 4. If the defendant has thus intentionally interfered with a chattel without lawful justification, and a loss of the chattel 1 Williams v. Gesse (1837), 3 Bing. N. C. 849. 2 BolUns V. Fowler (1874), L. R. 7 Q. B. p. 639, per Cleasby, B. s Consolidated Co. v. Curtis, (1892) 1 Q. B. 495; Barker v. Furlong, (1891) 2 Ch. 172. * (1873), L. R. 7 H. L. 757. SECT. 97] CONVERSION DEFINED. 339 does in fact result from the iiiterf ei-enoe, it is no defence that such a. loss was not intended, or even that it was not the natural or probahle result of the defendant's act. The doctrine of remotenesis of damage has no application to the wrong of conversion so long as no damages are claimed beyond the value of the property. ^ The question is not whether the defendant intended to deprive the plaintiff of his property, or whether he knew or ought to have known of the probability of such a result, but merely whether his wrongful interference did as a matter of fact produce that result. In Hiort v . Bott^ the plaintiffs, by a mistake fraudulently induced by their own agent, consigned certain barley to tlie defendant which he had not ordered, and they sent him a deliverj^ order to enable him to obtain it from the carrier. The plaintiff's agent thereupon informed the defendant that the consign- ment was a mistake, and induced him to indorse and hand over the delivery order to him (the agent) in order that the goods might be obtained by him from the carrier and re- delivered to the plaintiffs. The agent thus obtained posses- sion of the barley, sold it, and absconded with the proceeds; and the defendant was held liable in trover for its value. '^ 5 . It is not necessary that the defendant should have acted Defendant on his own account, or have converted tlie goods to his own jj^^^ ""^^^ ^^ use. He is equally liable if he has acted on behalf of some his own other person as his agent or ser\rant. In Stephens v . Elivall^ a servant was held liable for dealing with goods for his master's benefit and under his master's orders. " The clerk," it is said,^ " 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 Avith 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." Even when the act is done on behalf of 5 Supra, =. 36 (13)-. « (1874), L. E. 9 Ex. 86. '' Sed qu. whether there was any act of wrongful iaterferenoe in this case at all. Is not an involuntary bailee entitled to return the goods, and does he owe any duty to the owner save one of reasonable care ? 8 (1815), 4 M. & S. 259. 9 4 M. & S. p. 261. 22(2) 340 CONVERSION. [chap. X. Loss need not be permanent. the true owner and with the honest intention of preserving or restoring the property, it will amount to a conversion if done without la^vful justification, and if it results in fact in a loss of the property: as if I find A.'s goods which I wrongfully believe to bave been lost or mislaid by him, and band tbem to B to take to A, and B misappropriates them.^'*' 6. The loss or deprivation of possession suffered by the plaintiff need not be permanent. " Conversion," it has been said,ii "consists in any tortious act by which the defendant deprives the- plaintiff of his goods either wholly or but for a time." The duration of the dispossession is relevant with respect to the measure of damages, but makes no difference in the nature of the wrong. lu Baldivin v. Cole^^ the chattels were wrongfully taken, and then tendered again to the plain- tiff, and Holt, C . J . , says, ' ' Here, if the plaintiff had received them upon the tender, notwithstanding the action would have lain upon the former conversion, and the having of the goods- after would go only in mitigation of the damages." Every wrongful taking a conversion . § 98. Conversion by Taking. 1. Every person is guilty of a conversion who, without lawful justification, takes a chattel out of the possession of any one else. " The taking and carrying away of another's goods is a conversion. . . . Wherever trespass for takings goods win lie . . trover will also lie."^ He who takes possession of a chattel is liable for its value unless he restores it; and even if he does restore it, he is liable for any loss suffered by the plaintiff in consequence of the temporary dispossession. It is no defence that restoration has become impossible, even though no permanent taking was intended, 1° See also Consolidated Co. v. Curtis, (1892) 1 Q. B. 495 ; BarJier v. Furlong, (1891) 2 Ch. 172; Cochrane v. Mymill (1879), 40 L. T. 744. 11 Chitty's Precedents in Heading, 662, 3rd ed. 12 6 Mod. 212. 1 WUbraham v. Snow, Wms. Saund. II. 47, n. 47aa. Norman v. Bell (1831), 2 B. & Ad. p. 192, per Parke, J.: "A plaintiff may always bring- an action of trover where an action of trespass de bonis asportntis would lie." Fouldes v. Willoughby (1841), 8 M. & W. 540, at p. 54S, per Alderson, B.: "Any asportation of a chattel for the use of the defendant or a third person amounts to a conversion." SECT. 99j CONVEKSION BY DETENTION. 341 and even though the impossibility has resulted from no act or default of the defendant, but solely through the loss or destruction of the property by some inevitable accident or the wrongful act of some third person. For he who wrong- fully takes possession of another's goods has them at his own risk, and must in all events either return them or pay for them. 2 3 § 99. Conversion by Detention. 1. The detention of a chattel amounts to a conversion Detention no only when it is adverse to the owner or other person entitled unless to possesion — that is to say, the defendant must have shown adverse, an intention to keep the thing in defiance of the plain tiff. ^ Merely to be in possession of a chattel without title is not a conversion, nor indeed is it a tort of any kind. Thus, if a bailee merely holds over after the end of the period for which the chattel was bailed to him, he may be liable for a breach of contract, but he is not guilty of conversion or of any other tort. He has not deprived the owner of the possession, 2 Supra, s. 97 (4). 3 It is to be noted, however, that the mere act of wrongfully removing a. chattel from one place to another, without intent to assume possession of it or to deprive the owner of possession, is not in itself a coDversioai, but 13 mere trespass. Thus in Fouldes v. Willoughhy (1841), 8 M. & W. 540, the plaijitiffi went on board the defendant's ferry-boat, having with him two horses ; the defendant wrongfully refused to carry the horses, and told the plaintiff that he must take them ashore. The plaintiff refused' to do so, and the defendant took the horses from him and put them oui shore. The plaintiff remained on board the ferry-boat and was con- veyed across the river. In an action of trover it was held that the mere act of removing the horses from the boat, although wrongful, and action- able as a trespass, did not amount to the wrong of conversion. There was no intention to deprive the plaintiff of the possession of his pro- perty, or to assume possession for the defendant or any third person. What was done was, though wrongful, consistent with the continuing possession of his property by the plaintiff. " It has never yet been held," says Lord Abinger at p . 547, " 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 whoUy 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." This decision, however, must not be re- gtaided as any authority for the proposition that it is possible wrong- fully to take possession of a chattel, without being guilty of a conversion of it. 1 Clayton v. Le Hoy, (1911) 2 K. B. 1031. 342 CONVERSION. [chap. X. for there is nothing to show that the plaintiff may not have the chattel again whenever he desires it. So he who finds a chattel lost cannot be sued for a conversion, however longi he keeps it, unless by refusing to give it up or in some other way ho shows an intention to detain it adversely to the ^'-^A.'^.f*^' ''owner. No one is bound, save by contract, to take a chattel 'ji^ixx^s \ ' to the owner of it; his only obligation is not to prevent the ^^.^ P^*'^^ owner from getting it when he comes for it. %fh!liU, ^' l^i>-». ■ This rule is not a mere peculiarity of the action of trovea-, for it is equally applicable to all forms of action in tort which are based on the detention of a chattel. Thus, in Clements v. Flight,^ it was applied to the action of detinue. There the Court distinguished between three possible meanings of the term detain in a declaration in detinue — viz., (1) the mere act of having the goods in the defendant's possession; (2) the mere omission to deliver, in the sense of taking the goods to the plaintiff; and (3) the act of withholding the goods and preventing the plaintiff from obtaining possession of them. " We are satisfied that the last is the true meaning of the word detain. If it meant the mere keeping a po^ssession, not adverse, how could such a po^ession form the ground of an action? If it meant that the defendant had omitted and still omitted to be active in bringing the goods to the plaintiff, the action oould not be maintained without showing an obligation by contract to do so. We have no doubt, therefore, that the detention com23lauied of is an adverse detention. "^ Demand and 2. The usual method of proving that a detention is adverse refusal within the meaning of this rule is to show that the plaintiff demanded the delivery of the chattel, and that the defendant refused or neglected to comply with the demand. "It is common learning that Avhere the goods came into the de- fendant's possession by delivery or finding, the plaintiff must demand them and the defendant refuse to deliver them, in order to constitute a oonversion."^ It is submitted, how- ever, that demand and refusal is not the sole method in which 2 (1846), 16 il. & W. 42. 3 16 M. & W. p. 49. I * Wms. Saund. II. 47i. SECT. 99] CONVERSION BY DETENTION. 343 an adverse detention may be proved. There may be cases in which the making of a demajid is impracticable, and it cannot be supposed that in such circumstances the owner of the goods is without a remedy. Pi-esumably any conduct of the defendant whicli shows that he not merely possesses the goods, but intends to hold them in defiance of the plaintiff, and to deprixe liim of the possession of them, is sufficient to constitute a conversion, even though tliex'e has been no formal demand of restitution. Moreover, it is to be remembered that when the defendant is in possession by means of an unlawful taking of the goods out of the plaintiff's possession, this is in itself a conversion, and the plaintiff is not bound to rely on the detention or to prove by demand and refusal or otherwise that it is adverse.^ 3 . Adverse detention does not necessarily involve any Delay due to knowledge of the plaintiff's title. Detention under an honest y°^^* ^^ *® but mistaken claim of right oai the part of the defendant is just as much a conversion as is a fraudulent purpose to keep another's property. Where, howevei-, there is a genuine doubt in the defendant's mind as to the ownership of chattels, a temporary and provisional refusal to deliver them' to a claimant, pending inquiries into his title, is justifiable, and is neither a conversion nor any other kind of wrong. No person is bound to deliver forthwith to the first claimant oil peril of being sued for a conversion. In such cases it is a question of fact for a jury whether there was an honest doubt as to the title, and whether the delay was reasonably required for the purpose of making the needful inquiries.^ 4. A failure to deliveir up goods on demand is not a con- Chattel version if at the time of the demand they are no longer in the defendant's poBsession. 5 Supra, 9. 96 (7) ; Wms. Saund. II. 47 n. 6 Vaughan v. Watt (1840), 6 M. & W. p. 497: "The learned judge was incorrect in telling the jury that the mere refusal to deliver the goods to the real owner was a conv>ersiooi. . . ^ It ought to havfe. been left to the jury whether the defendant had a botid fide doubt as to the title to the goods, and, if so, whether a reasonable time for" clearing up that doubt had elapsed." See also Alexander v. Southev (1821), 5 B. & Aid. 247; PUlott v. Wilkinson (1864), 3 H. & O. 345; Burroughes v. Bayne (1860), 5 11. & N. 296; Clayton v. Le Roi/, (igil') 2 K. B. 1031. 344 CONVERSION. [chap. X. l>ower OT possession of tlie defendaait: as when they are already desteoyed or consumed, or have already got into the possession of some other person. No one can convert a chattel by refusing to give it up "whon he no longer has it, and this is 80 even if it is due to his o-\vn act or default that delivery is no longer possible.'' If by his own wilful act be haa already destroyed or consumed the property or disposed of it to some other person, he is indeed liable in trover; but the conversion to be sued on in such a case is the very act of destruction, consumption, or dispoisal, and not the subsequent omission to give delivery to the plaintiff. Therefore it is from the date of tliis prior act, ;and not from! that of the demand, that the Statute of Limitations begins to run in the defendant's favour. 8 If, on the other hand, the defendant's inabiKty to comply with ,the demand is due not to any mlf ul act of wrongful interference, but merely to negligenoe, as when the goods have been accidentally lost or destroyed while in his possession, be is not liable for a conversion at all; not for the loss or destruction, because it was not the result of any wilful and ■^^Tongful interference; and not for the omission to deliver, for it is no proof in these circumstances of a.ny adverse detention. If he is liable at all, it is in an action for negligence, provided that he was in possession of the goods under such circumstances that he owed to the owner of them a legal duty to take care of them. Finally, if the goods are lost or destroyed without any act or negligence of the defejadant at all, and before by demand and refusal or other- wise his possession has become adverse and actionable, he is not liable at all, either for a conversion or on any other ground . § 100. Conversion by Wrongful Delivery. Wrongfn} Every person is guilty of a conversion who, without lawful eiverj'. justification, deprives a person of liis goods by delivering them to some one else. Examples of this form of conversion ' Williams V. Gesse (1837), 3 Bing. N. C. 849. 8 Granger v. George (1826), 5 B. & C. 149. SECT. lOl] CONVERSION BY WRONGFUL DISPOSITION. 345 have been already considered by us. Thus, a bailee commits a conversion who sells or pledges the goods to a third person. So with a finder of goods who similarly makes away with them. So an auctioneer who sells and delivers stolen pro- perty or propea-ty subject to a bill of saJie is liable to the true owner or to the bill-of-saie holder, even though ignorant of any such adverse title, and even tliough he has already paid over the proceeds to his own dient.i So a purchaser of goods from a vendor who has no title to them is liable in trover for their full value if he subsequently resells and ' delivers them to anotlier person. ^ So a servant or agent in possession of goods who delivers them' to a purchaser by order of his master or jDrincipal commits a conversion against the true owner. ^ * § 101. Conversion by Wrongful Disposition. 1. Every person is guilty of a conversion who, without Wrongful lawful justification, deprives a person of his goods by giving '®P°^ '"'■ some other person a lawful title to them. There are certain cases in which a person in possession of goods to which he has no title can nevertheless efficiently, though wrongfully, so dispose of them by sale, pledge, or otherwise that he confers a good title to them on some one else. Any such disposition amounts to a conversion as against the true and original owner, for by the creation of this adverse title he ha? been deprived of his property. This is the case, for 1 Consolidated Co. v. Curtis, (1892) 1 Q. B. 495; Barker v. Furlonff, <1891) 2 Ch. 172; Cochrane v. Rtjmill (1879), 40 L. T. (N. S.) 744. / 2 Bollins V. Fowler (1875), L. R. 7 H. L. 757. ^.'^■ 3 Stephens v. Elwall (1815), 4 M. & S. 259. * It is to be remembered, however, that when a carrier, -warehouse- man, or other bailee dealing with goods under a contract with their owner delivers them by mistake to the wrong person, his liability for this mistake deipends not on the law of torts and of conversion, but on that of contracts. Whether he is bound to deliver, at his peril, to the right person or is bound only to exercise due care in making a delivery depends upon the express or implied terms of the contract. Ordinarily the duty of a carrier is merely to use reasonable care to deliver to the right person in accordance with the usual course of business. Stephen- son V. Bart (18'28), 4 Bing. 476; Heugh v. London ^- N. W. My. Co. (1870), L. E. 5 Ex. 51; McKean v. 3IcIvor (1870), L. R. 6 Ex. 36. 346 CONVERSION. [chap. X. example, with, a sale in market overt; ^ with, a wrongful disposition made by a mercantile agent under the provisions of the Factors Act, 1889; with a wrongful disposition made by a vendor or purchaser of goods who retains or obtains pos- session of them;fi and with any wrongful aot whioh creates a good title to a negotiable instrument, adverse to the right of the original owner. In most of such oases, indeed, the wrong- ful disposition is also a wrongful delivery, and therefore is a conversion for that reason also, but this coincidence is no essential. 2. A meie sale or other attempted disposition unaccom- panied by delivery and ineffectual to divest the plaintiff's title to the property is not a conversion.'' Wrongful destruction. § 102. Conversion by Wrongful Destruction. Every person is guilty of a conversion who, without lawful justification, wilfully consumes or otherwise destroys a cliattel belonging to another person. ^ Mere damage, how- ever, wliich falls short of actual destruction, is not in itself a conversion. The test of destruction, as opposed to mere damage, is presumably the disappearance of the identity of the article. Grapes are presumably destroyed when they are turned into wine, cotton when it is woven into cloth, com when it is ground into flour. Miscellaneous forms of conversion. § 103. Other Forms of Conversion. Every person is guilty of a conversioji who, in any Other way than those mentioned in the preceding sections, causes the loss of a chattel by any act of wilfuHnterference without lawful justification. This is a residuary class of conversions which includes all modes of wrongful interference and lo^ss 5 Sale of Goods Act, 1893, s. 22. 6 ma. s. 25. 7 Lancashire Waggon ■Co. v. Fitzhugh (1861), 6 H. & N. 502; Barker V. Furlong, (1891) 2 Ct. at p. 181; Consolidated Co. v. Curtis, (1892) 1 Q. B. at p. 498. 1 Com. I)ig. Action upon the case, Trover, E.; Hollins v. Fowler (1875), L. E. 7 H. L. p. 768. SECT. 104] ACTS NOT AMOUNTING TO CONVEJiSlON. 347 except taking, detention, deli\'ery, disposition, and destruc- tion. Thus, in Lilley v. Doiibleday^ the defendant, a ware- houseman, received the plaintiff's goods for deposit in a certain warehouse. In breadi of his agreement he stored them in a different building, which was burned down while the goods wore in it, and he Avas held liable for the loss of' them. There was no negligence in so keeping the goods, their loss was in no way a natural or probable result of his breach of contract, yet by reason of his wrongful interference with them they were at his risk. So he who without lawful justification lets loose another's dog from his chain, or opens the cage in which another keeps a bird, or frightens another's cattle so that they escape from the place in which they arc' kcjDt, is liable for any loss of the property which so results. § 104. Acts not Amounting to Conversion. 1 . We have akeady seen that the mere possession of goods Mere receipt witliout title is neither a conversion nor an\' other kind of °^„''}^*'^;T^ ■J a conversion. toii;.^ The only detention that is actionable is adverse detention — a withholding of possession from the person entitled to it. It seems to foUiow logically from this, that merely to receive goods in good faith by the way of pledge, .^ale, or otherwise from a person who has no title to tliem is not a conversion by the recipient. He commits no con- version until hje refuses to deliver them to the true owner, or until he wrongfully disposes of them. Thus, in Spademan V. Foster,'^ certain deeds belonging to the plaintiff Avcre fraudulently taken from him and pledged in the year 1859 with the def endant7 who received them in good faith and in ignorance of the plaintiff's title. In the year 1882 the plaintiff' discovered the loss of the deeds and demanded them from the defendant, who refused to give them up and pleaded the Statute of Limitations. It was held that no cause of action accrued until the demand and refusal, and that therefore the defendant was liable in trover although he 1 (1881), 7 Q. B. D. 510. 1 Supra, s. 99 (1). 2 (1883), 11 Q. B. D. 99. 348 CONVERSION. [chap. X. No oonTer- aon if chattel merely restored to person from whom it was received. had been in possession of the cloeds for twentj'-three years. "The defendant," says Grove, J. ,3 "when he received these deeds had no knowledg'e that the person who pledged tlaem had no title to them. He kept them as depositee or bailee, bound to return them on payment of the money he had advanced. Ho held them against the person Avho had deposited them, but not against the real owner: and non constat that he would not have given them up if the real owner had demanded them. This does not seem to me to be conversion." A similar decision was come to on \evj similar facts in Miller v. Dell,^ in which Lord Esher says, " Where title-deeds are fraudulent!}' taken from tlae rightful owners and deposited with a third person, until demand and refusal to gi^'c up the deeds to the real owners they have no right of action against the third jserson against which the statute would run." Kay, L. J., quotes and adopts the reasoning of the passage just cited from the judgment in Spademan v. Foster.^ ^ 2. If this is so it soems further to follcw that if he who thus innocently acquires posseission of another's goods re- delivers them to him from whom he got them, before he has received notice of the plaintiff's claim to them, he is free from responsibility. He has not deprived the plaintiff of his pro- perty, for that property is now in exactly the same position as if the defendant had never interfered with it at all. Ac- cordingly in TJnioii Credit Bank v. Mersey Docks and Harbour Board? certain hogsheads of tobacco belonging to the plaintiffs were fraudulently pledged by a third person with the defendants by the delivery of the dock warrants. The defendants acted throughout in good faith, and subse- quently returned the warrants to the jjledgor on redemption. The plaintiffs thereafter demanded the property from' the defendants and sued in trover, when it was held by Bigham, 3 (1883), 11 Q. B. D. p. 100. ^ (1891) 1 Q. B. 468. (1891) 1 Q. B. p. 473. 6 It is submitted that the dicta to the contrary in McComhie v. Darns (1805), 6 East, 538, and in Fine Art Society v. Union Bank of London (1886), 17 Q. B. D. at p. 711, must be taken to be incorrect in view of the decisions already cited. ' (1899) 2 Q. B. 205. SECT. 104] ACTS NOT AMOUNTING TO CONVERSION. -H9 J., tJiat they -were not liable. "A waroliousemau," says Blackburn, J., in Rollins v. Fo-wler,^ " witli whom goods have been doposited is guilty of no conversion by keeping thcni or restoring tlieni to tlie pcxson who deposited them witli him, though that person turns out to have no authority from the true owner. "^ 3 . What shall be said, however, if the innocent holdei- Delivery to h has delivered tlie goods not bo the piei'son from whom he. "^ person, received them, but at his order to some third person : as when a carrier receives stolen goods fi-om a consignor, and delivens them to the consignee; or a warehouseman delivers such goods to Iiim to whom the delivery warrant has been trans- ferred by the depositor. If in such a case the defendant ' acts in good faith and without any knowledge that the delivery made by him is in pursuance of some sale or other disposition purporting to affect the title and not merely the ; possession of the goods, it is probable that he is under no Kability. Blackburn, J., in Hollins v. Foivler^'^ expresses this principle as follows: " I cannot find it anywhere dis- tinctly laid down, but I submit to your Lordships that, on principle, one who deals with goods at the request of the person who has the actual custody of them in the bond fide belief that the custodier is the true owner, or has the au- thority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession, if he was the finder of goods or intrusted with their custody." On this principle a carrier who merely receives and delivers goods in the ordinary way is not liable in trover merely because the trans- action was a conversion on the part of the consignor .^^ If, however, a carrier, warehouseman, agent, or bailee has actual knowledg'e that his delivery of the goods is part 8 (1875), L. R. 7 H. L. p. 767. 9 AUter if he has notice of the claim of the true owner. He then delivers at his peril. Winter v. Bancks (1901), 84 L. T. 504. 10 (1875), L. R. 7 H. L. p. 766. 11 Greenway v. Fiaher (1824), 1 0. & P. 190; Sheridan v. Hew Quaij Go. (1858), 4 C. B. (N. S.) p. 650, per Willes, J.; Fowler v. Hollins^ L. R. 7 Q. B. p. 632, per Martin, B. See also McEntire v. Potter (1899), 22 Q. B. D. p. 441, per Cave, J. 350 CONVERSION. [chap. X. of a transaction affecting tbe title and not merely the pos- session, the question of his liability would seem to be still an unsettled i>oint in the law of conversion. If the case of The National Mercantile Bank v. Rymill^^ is well decided, there is no liabilitj' cvon under these circumstances. In this case it was beld by the Court of ApjDeal that an auctioneer with whom the goods of the plaintiff had been wrongfully deposited for sale was not liable for a conversion, although he had delivered them at the request of the vendor to a person to whom, as the auctioneer knew, the vendor had sold thean by private contract. It is difficult to reconcile this decision with earlier cases euah as Stephens v. Eltoall,^^ and it is con- trary to the opinion of Blackburn, J., in HollinsY. Fowler. ^^ If -well decided, it is an authority for this principle: that a bailee commits no conversion merely by redelivering the goods to his bailor or to the order of his bailor, even with the kno-\\- ledge that the transaction is a sale or other disposition of the title, pro\-ided that he has no notice of any adverse claim on the part of the plaintiff. It is clearly otherwise, however, . if the bailee has not merely delivered with knowledge of the sale, but has himself sold as well as delivered, even though he sells merely las an agent and without claiming any bene- ficial interest in the property for himself. ^^ § 105. Conversion by Estoppel. 1 . A defendant Avho has in truth committed no conversion may be held liable for one because he is estopped by his own act from alleging tlie fact which constitutes his defence : for example, that he has never had possession of the goods, or that he is no longer in ppssiession of them, or that the plaintiff has no title ta them. Estoppel by Thus, in Seton v. Lafone^ goods were deposited by A for tfra.^^'''' ' ^^f'^ custody with the defendant, a warehouseman, whose 12 (1881), 44 L. T. 767. " (1815), 4 M. & S. 259. " (1875), L. K. 7 H. L. at p. 767. 15 Barker v. Furlong, (1891) 2 Oh. 172; Comolidatcd Co. v. Curtis, (1892) 1 Q. B. 495. See the observations of Collins, J., in this case on the whole question. i (1887), 19 Q. B. D. 68. SECT. 105] CONVKRSION BV ESTOPPEL. '351 ser'\ ants subsequently delivered tlieiii by mistake to a stranger. Thereafter, in ignoraxice »t' this fact, the defendant repre- sented to B that he was still in possession of thc«e goods on behalf of A, av hereupon B purchased them hxtm A and demanded -delivery from the defendant. It was held that the defendant \\-as (estopjjed from denying that he had the goods, and lie was accordingly held liable as for a conversion by refusing to deli\ er them.- So in Henderson v. Williams^ the owner of goods in the defendant's warehouse was induced by the fraud of F to instruct the defendant bo transfer them into the name of F. F then sold them to the plaintifF, who before paxiug for them obtained from the defendant an acknowledgment that they were now held on his account. On discovery of the fraud of F the defendant, at the request of the true owner, refused to deliver the goods to the plaintiff, and defended an action of trover on behalf of the true owner and by his authority It was held by the Court of Appeal that the defendant -w as estopped from disputing the plaintiff's title, and was liable accordingly as for a conversion. 2 . A bailee is estopped from denying the title of his bailor, Estoppel of a, l)3,il6G and therefore a refusal to redeliver the pixjpertj^ is a con- version, even though in fact tlie plaintiff has no title bo it.* Nor does it make any difference whether the j^laintiff has no title at the time of the bailmenb, or has losb his title since the bailment. Thus, in Rogers v. Lambert^ the plaintiffs bought certain copper from the defendants and paid for it, bub it remained in the defendanbs' possession as warehouse- men for the plainbiffs. The plainbiffs bhen resold bhe copper to a bhird person, who paid them for it. The plaintiffs having thereafter demanded possession, the defendants re- fused to deliver on the ground tliat the plaintiffs had no longer any title to bhe copper. lb was held, however, by bhe Courb of Appeal that the defendanbs were esbopped as bailees from 2 According' to Bristol and West of England Bank v. Midland My. Co., (1891) 2 Q. B. 653, however, the defendant is equally liable in such a case even when there is no estoppel. See also Goodman v. Botjcott (1862), 2 B. & S. 1. 3 (1895) 1 Q. B. 521. * Biddle T. Bond (1865), 6 B. & S. 225. = (1891) 1 Q. B. 318. 352 CONVERSION. [chap. X. raising any such, defence, and that they were liable in trover for the full value of the property. The estoppel of a bailee no longer exists, if he has already, on the demand of the true owner, given up possession to him, or if he defends the action on his behalf and by his authority .® Action by person entitled to immediate poesession. § 106. The Title of the Plaintiff. 1 . Whenever goods have been converted, an action will lie at the suit of any person entitled at the time of the conversion to tlie immediate possession of them. The action of trover was based on tlio right of immediate possesision, and not on the right of ownership . A person entitled to such posses- sion could sue in trover, even thought he was not the owner of the property but a mere bailee, agent, or pledgee.^ Con- versely, a person not so entitled could not sue in trover, even though he was the owner of the property. Thus, no action of trover would lie at the suit of a bailor of goods for a fixed tenn;2 or at that of a purchaser of goods which were still held by the vendor under his lien ; ^ or at that of a pledgor, or of the holder of a biU of sale before default made by the debtor.* In all such oases the remedy of the plaintiff was not trover, but a special action on the case for the injury done to his reversionary interest. A bailor at will, however. 6 Biddle >. Boiid (1865), 6 B. & S. 225. The remedy of a bailee against whom adverse claims are madois to take interpleader proceedings. Robinson v. Jenkins, 24 Q. B. D. 275; Attenhorough v. London ^ St. Katharine's' Dock Co. (1878), 3 C. P. D. 450. The estoppel of a bailee is closely analogous to the rule that a possessory title ia good against all but the true owner. It is possible, indeed, that the former rule is in truth merely a particular application of the latter. The true nature and extent, however, of the latter is still far from definitely sett'ed, and it is necessary in the meantime to recognise the estoppel of a bailee as an independent principle. 1 The Winkfield, (1902) P. 42. Similarly, although an equitable title is not sufficient to found an action at common law for conversion or any other injury, yet if an equitable owner is in possession under the terms of the trust, he can sue at common law in reliance on his possessory title without joining his trustee as a plaintifE. Bealey v. Healey, (1915) 1 K. B. 938. 2 Gordon v. Harper (1796), 7 T. R. 9. 3 Lord V. Price (1874), L. R. 9 Ex. 54. . recoverable is entitled to recover the same damages for a conversion by possessory of it as if his possessory title amounted to legal ownership . | °^"^''' When a plaintiff has and relies on a possessory title, the jus tertii is no more available as a ground for the reduction of damages than as a defence to the action. As against a wrong- doer a possessory title is to be taken as being a legal one, and it has the same effects. Therefore a finder or wrongful pos- sessor of goods may recover the full value from any one who converts them, unless be defends the action on behalf and by the authority of the true owner or has already made satisfaction to him.^ 6 (1902) P. p. 61. s (1835), 2 O. M. & R. p. 660. See also Eastern Construction Co. V. National Trust Co., (1914) A. C. 197, p. 210. 7 Attenhorough v. London # 9t. Katharine's Dock Co. (1878), 3 O. P. D. p. 454, -per Bramwell, B. 8 Armory v. I>elamirie (1721), 1 Str. 505; Bridges v. Hawhesworth' (1851), 21 L. J. Q. B. 75; The Winl- field. (1902) P. 42. 36« CONVERSION. [chap. X. Value recovered as at date of conversion. Effect of increase in value. Special damages in addition to value of the property. 10. The A'alue recoverable in an action for cou\'orsion is in general the value of the property at the date of the con- version, and not its value at any earlier or later date. If the property falls in ^'alue after the date of the conversion, even without any act or default of the defendant, he is never- theless liable to acoount foL' its original value: as if a horse is wrongfully taken or detained, and dies in the defendant's 130ssession. For noi) const rd that the jjlaintiff would not, before such a loss occurred, have sold the property and so obtained the full value for it. 11. If, on the other hand, the property increases in value after the date of the conversion, a distinction has to be drawn. If the increase is due to the act of the defendant, the plaintiff has no title to it, and his claim is limited to the original value of the chattel. Thus, in Reid v. Fairbanks^ the defendant wrongfully took possession of a half -finished ship belonging to the plaintiff, and then completed the building of it; and it was held that the plaintiff could recover only the value of the unfinished article. So if coal is wrong- fully extracted from the plaintiff's land, he recovers at tlie most the value of the coal at the moment when it first became a chattel by severance from the seam, and not its value when it has been raised from the mine or transported to some place where its price is higher. i" If, however, the subsequent increase of value is not due to the act of the defendant, but would have occurred in any ease, even had no oon\ ersion been committed, the plaintiff is entitled to recover it as special damage resulting from the conversion, in addition to the original value of the property converted: as when goods taken or detained have risen in value by reason of the fluctuation of the market. ^^ i- 12. In all actions for a conversion the p)laintiff may recover, in addition to the value of the property or of his iutea'cet 9 (1853), 13 0. B. 692. 10 Taylor v. JIost,/ii (1886), 33 Ch. D. 226; Morgan v. Potcell (1842), 3 Q. B. 278. 11 Greening v. Wilkinson (1825), 1 0. & P. 625. 1' As to the measure of damages for a conversion, when the chattels converted have been severed from land, as in the case of minerals, crops, or fixtures, see above, s. 55 (5). SECT, no] SPECIKIC liKSTM'UTION. ^ti' in it, any additional damage which he may have sustained by reason of the conversion, and which is not too nnnoto.^^ 13. The foregoing rules as to the measure of damages for a conversion apply, nmtatis mutandis, to actions for any wrongful loss, destruction, or damage of chattels not amount- ing to conversioH.i* § 110. Specific Restitution of Chattels. 1. In all actions for conversion, when the property con- Discretionary ... . 1 n 1 1 p ' 1 power to verted remains m the possession or control oi the dciendant, order specific and the plaintiff is entitled to the immediate possession of it, ^'e^titution. the Court has discretionary jjowcr, on the application of the plaintiff, to order the restoration of the property itself, instead of payment of its pecuniar}- value; and such an order is enforceable by writ of jjossession or by attachment. 2. Under the old practice detinue was an action for the History of .specific recovery of the property itself, together with damages for its detention. The claim made for the value of the pro- pert}- in such an action was merely albernati\-e and sub- sidiary, in case specific restoration proved to be impossible. Tte judgment in detinue, therefore, w-as for the return of the property, or payment of its value if such a return oould not be obtained; and this judgment was enforced b}- the seizure of the property, or by the distress of the defendant by all his lands and goods until he made delivery .1 The actions of tresimss de bonis asportatix and of trover, on the other hand, were brought not for the recovery of the property, but for damages equal to the value of it, and there was no procedure by which specific restitution could be 13 Bodley v. Reynolds (1846), 8 Q. B. 779; France v. Gciudei (1871), L. B. 6 Q. B. 199; Thurston v. Charles (1905), 21 T. L. R. 659. By th« Law Amendment Act, 1833 (3 & 4 Will. IV. c. 42), it is provided (sect. 29) that a jury may, if it thinks fit, give damages in the nature of interest over and above the value of the goods at the time of the conver- sion or seizure in all actions of trover or trespass de bonis asportati^. " The Winkfleld, (1902) P. 42. 1 Donald v. SucMing (1866), L. E. 1 Q. B. p. 601; Chitty's Pleading, 1. p. 139, 7th ed. 368 CONVERSION. [chap. X. When restitution ■will not be granted. Aceessio, specification and confuHc in English law. ordered or enforced. After detinue had fallen out of use, therefore, there was no effective method at common law by which an owner of goods could recover the possession of them, and it was necessary to have recourse to the discre- tionarj^ power of the Court of Chancery to issue injunctions.^ By the Common Law Procedure Act, 1854, section 78, it was provided that in all actions for the wrongful detention of chattels tlie Courts of Common Law should ha^'c power to order specific restitution. The jurisdiction thus created is preserved and made more effective by the Judicature Acts and the Rules of the Supreme Court. ^ 3. The power of the Court bo order specific restitution of chattels is discretionary and not a matter of right on the part of the plaintiff. Such an order, therefore, may be either refused altogether, or niade only on such terms as to the Court seems necessary to do complete justice between the parties.* This being so, it may be assumed that one or other of these courses will be adopted in all cashes in which the value of the chattel exceeds the amount of damages to which the plaintiff is entitled. If the defendant has, since taking the propertjr, increased the value of it by his own labour or expenditure, the plaintiff, as we have already seen, is entitled to recover as damages only its original and not its presient value. ^ This being so, it is clear that if the plaintiff seeks specific restitution instead of damages, the COurt must either refuse this remedy altogether, or grant it only on the terms that the plaintiff shall make to the defendant a fair allowance in respect of the increased value of the property.^ 4. It is in this circumstance that specific restitution is a matter of judicial discretion and not of right that we must find the solution in English law of all those puzzles concerning 2 Pusetj V. Pusetj (1684), 1 Vera. 273; Fuloke v. Gray (1859), i Drew, 651. s See Order XLII. r. 6; Order XLVIII. r. 1; Byman v. OgcLen, (1905) 1 K. B. 246. * Chilton V. Carrington (1855), 15 C. B. 740, per Maule, J.; Pei-uvian Guano Co. v. Dreyfus Bros., (1892) A. 0. p. 176, per Lord Maonaghten. 5 Supra, o. 109 (11). ^ Peruvkm Gnano Co. v. Dreyfus Bros., (1892) A. C. p. 176, per Lord Maonaghten. SECT. llOj SPECIFIC RESTITUTION. 3 69 accessio, specificutio, and confusio -which we find discussed ^ith such unsatisfactorj^ results in Roman law and the Con- tinental sjstems founded upon it, and concerning which there is so little authority in our own system. Acoessio is the combination of two chattels belonging to diii'erent persons into a single ai'ticle: as when A's dloth is used to patch B's coat. Spccificatio is the making of a new article out of the chattel of one person by the labour of another: as when A's corn is ground into flour by B, or his grapes are made into wine. Confusio or commixtio is the mixture of things of the same nature but belonging to different owners so that the identification of the things is no longer possible: as when A's money or wheat becomes mixed with that of B. In all these cases there are two questions to be asked whioh must be kept distinct. The first, which is of subordinate im- portance, is: In whom is the ownership of the new article so created? The second, which is independent of the first, is: Who is entitled to the possession of the new article, and on what terms will he be permitted to retain or recover it? As to the first of these questions, our law seems to be desti- tute of any adequate authority. Such authoritj' as we have is mostly of ancient date, and shows a tendency to follow the conclusions of Roman law on this matter. It is submitted, however, that these authorities are of little weight at the present day, having regard to the modern developments of the law of conversion, and that the true principle of English law is that a man's property in chattels is not divested by any such events. If my oom is wrongfully taken from me and made into flour, the flour is mine; and if my tree is cut down and savrai into timber, the timber is mine.^ If my sheep become mixed with another's, so that their identifica- tion is impossible, he and I are owners in common of the whole flock in the proportions of our respective contribu- tions to it.^ 7 y. B. 5 H. 7, f. 15, pi. 6. 8 Buckley v. Gross (1863), 3 B. & S. 566; Lupton v. White (1808), 15 Ves. 432; Spence v. Union Marine Insurance Co. (1868), L. E. 3 0. P. 427; Sandeman ^ Sons v. Tyzach # Branfoot Steamship Co., (1913) A. C. 680, p. 694. It is said in some of these cases that if the confusio is due s. 24 370 CONVERSION. [chap. X. Discretionary power to order plaintiff to accept restitution instead of damages. Over and above the question of OAvnership, however, there arises the question of the right of possession. Here English law avoids all difficulties by making the matter one of judicial discretion unfettered by any general principles. The Court is left free in any such case to make an 'Order for specific delivery of the property to the claimant who, having regard to all the circumstances, has the best right to it, and to impose on him such terms as are deemed just for compensating the other party for his interest in the property. It may be assumed that in all ordinary cases the Court aa'IU be guided by the relative values of the interests of the rival claimants. Possession will be awarded to him whoso interest is the most substantial, on the terms that he pays the value of the other's interest. If A takes the horse of B, and puts new shoes on it, B will obtain specific restitution of the horse, but, it may be, only on paying for the shoes. But if A takes the marble of B, and makes a statue of it, B will ask in vain for specific restitution, and will be left to Ms claim for damages eimounting to the original value of the marble. ^ 5. When property has once been converted, there is a vested right of action in trover, which is not divested by the fact that the owner subsequently accepts restitution of the property. Such a recovery of possession goes merely in mitigation of damages, and not in bar of the action. There- fore the plaintiff may still commence or proceed with his action for the recovery of such damages as are due in respect of his temporary dispossession. 1° to the wrongful act of one of tlie owners, he forfeits his property to tlia other. Sed qu. 5 The following authorities on accessio, specificatio, and confusio in English law may be referred to: Y. B. Henry 7, f. 15, pi. 6; Cro. Jac. 366; Popham, 38; Moore, 19; 1 Hale's P. O. 513; Blackstone II. 404; BuoMey y. Gross (1863), 3 B. & S. 566; Lupton v. White (1808), 15 Ves. 432; Spence v. Union Marine Insurance Co. (1868), L. R. 3 C. P. 427 ; Jones v. Moore, 4 Y. & O. (Ex.) 351 ; Sandeman % Sons v. Tyzack # Branfoot Steamship Co., (1913) A. C. 680. The modern Continental codes have largely abandoned the conclusions of Roman law, but the rules established in substitution are so vague and unsatisfactory as to lead irresistibly to the conclusion that English law is wise in treating the matter as one for the exercise of judicial discretion and not for the application of fixed principles. See the French Civil Code, ss. 565-577; German Civil Code, ss. 946-952. i» Moon V. Raphael (1835), 2 Bing. N. C. 310. SECT. 110] SPECIFIC RESTITUTION. 371 But is the plaintiff bound to acoept such a restitution of converted property; or oan he refuse a tender of it, and insist on his rig'iit to sue for its value in trover? Under tho old practice a tender of the goods was a good plea in an action of detinue, for this action was brought not for damages, but for the i^ecovery of the goods themselves. ^^ In trespass and trover, on the contrary, the plaintiff had a good cause of action for the value of the goods, and was not bound to acoept the goods themselves; and the only remedy of a defendant who was able and Avilling to restore the property was to apply to the Court to exercise its discretionary jDower of staying the action on deli^'ery of the goods. After some hesitation and reluctance the Courts finally consented to exer- cise this power in oases in whioh it was just to tho plaintiff that he should be thus compelled to accept the property', and in which complete justice could be so done to the parties. ^^ How, then, does the matter stand under the modern practice? Presumably in this way: that if the plaintiff sues for specific restitution he is bound to accept a tender of the property, on the analogy of the action of detinue; but if he chooses to sue merely for the value of the property (as in the old actions of trover and trespass) it is in the discretion of the Court whether and on what terms the action will be allowed to proceed, if the defendant offers to restore the property. § 111. Replevin. 1 . Whenever chattels are taken by one person out of the Nature of the possession of another, whether by way of distress or other- repleTOi? wise, the latter may by way of proceedings in replevin reoo\er immediate and provisional possession of them, pending the result of an action brought by him to determine the rights of the parties. 11 C'rossfield v. Such (1852), 8 Ex. 159. 12 Tucker v. Wright (1836), 3 Bing. 601; "When complete justice «an be done by the delivery of a specific chattel, the Court will some- times interfere to stay proceedings." Moort v. Raphael (1835), 2 Bing. N. O. 310; Fisher v. Prince, 3 Burr. 1363; Goohe v. Holgate, Barnes, 281; Pickering v. Truste (17%), 7 T. R. 53. 24(2) 372 CONVERSION. [chap. X. When available. Efiect of this remedy. 2. The right to replevy gioods is a right to get them back at onoe and j^rovisionally, instead of having first to establish one's title to them in an action of trover, detinue, or trespass. Application is made by the claimant (called the replevisor) to the Registrar of the County Court within the jurisdiction of which the goods wex. 86i6; Morris v. Mobinson (1824), 3 B. & C. 19&; Bradley # Cohn v. Ramsaij, 106 L. T. 771. 2 It is to be remembered, however, that if two defendants have not merely converted the same property, but have in so doing made themselves joint wrongdoers, a judgment against one of them, even without satis- faction, is a bar to a subsequent action against the other. Brinsmend v. Harrison (1872), L. R. 7 O. P. 547. It seems, however, that if A has committed two successive acts of conversion against the same property, the first of which was committed jointly with B, and the second sepa- rately by himself, judgment against B for the first conversion will be no bar to a further action against A for the second. Thus, where A and B took the plaintiff's property and subsequently B alone detained it and refused to deliver it, it was held that an action for that detention' would lie against B notwithstanding a previous judgment against A for the taking. Brinsmead v. Harrison (1871), L. R. 6 O. P. 584. 374 CONVERSION. [chap. X. In whom property Tests. Limits of operation of satisfaction. a compulsory purcliase of the goods by the defendant. The same result must foEow from piayment of the full value even without action or judgment, if made to a person entitled to receive it. After suoh satisfaction, therefore, the former owner is deprived of all his rights of recaption and specific restitution. Nor can he sue for damages in respect of any conversion subsequent to satisfaction made. As to any prior conversion, on the other hand, he presumably retains a right to sue for any actual damage sustained by him in consequence of it over and above the value of the goods. ^ 3. Property so divested from the plaintiff by satisfaction made does not necessarily vest in the defendant. It may vest instead in some person who claims under him, and therefore has a better title to the property than he has; for example, when A takes property from B, and sells it to C, satisfaction made by A to B will vest the property in C . 4. Satisfaction made to a plaintiff in trover does not operate to transfer the owniership of the proper-ty save as against the plaintiff himself, and as against any other persons whose right of action for damages is barred by the action of the plaintiff. Thus, payment made to a mere possessory owner will not divest the title of the true o\vner; and whether payment made to a bailee will di\'cst the title of his bailor depends on whether an action brought by a bailee is a bar to a subsequent action by the bailor.* Trespass to chattels defined. Other Injuries to Chattels. § 113. Trespass to Chattels. 1 . The wrong of trespass to chattels consists in committing witliout lawful justification any act of direct physical inter- ference with a chattel in the piossession of another person — that is to say, it is such an adt done with respect to a chattel as amounts to a direct forcible injury within the meaning of the distinction drawn in the old practice between the writ of 3 Brinsmead \- . Harrison (1871), L. E. 6 0. P. 584. * As to this, see e. 109 (8), above. SECT. 113] TRESPASS TO CHATTELS. 375 trespass and that of trespass on tlie case.^ Thus, it is a tres- pass to take away a chattel or to do wilful damage to it. Eyen negligent damage, if direct and not mea-ely conse- quential, falls within the scope of trespass: as in the case of a negligent collision between two vehicles. ^ 2. Physical interference usually consists in some form of Physical physical contact — some application of force by which the essential. chattel is moved from its place or otherwise affected. But ,' this is not essential. It is presumably a trespass wilfully to ' frighten a horse so that it runs away, or to drive cattle out of a. field in which they la-wfuUy are, or to kill a dog b}- giving it poisoned meat. 3. The wrong of trespass is partially coincident with that Trespass and of conversion. A wilful trespass causing a loss of the posses- sion of the chattel is also a conversion. But there may be trespass without conversion, and conversion without trespass . That form of trespass which consists in an actual taking-away of chattels out of the possession of the person entitled thereto is termed trespass de bonis asportatis, and is wholly included within the scope of conversion. ^ 4. It is probable that a trespass to chattels is actionable Trespass per sc without any proof of actual damage. This, indeed, p^rse. seems never to have been decided, but it is clearly so in the case of trespass to land and to the person, and there is no reason why it should be othexwise in the case of goods. If this is so, any unauthorised touching or moving of a chattel is actionable at the suit of the possessor of it, even though no harm ensues. It may be very necessary for the protection of certain kinds of property that this should be the law.* ■J . Trespass to chattels, like trespass to land, is essientially Who can sue an injury to the right of possession and not to that of owner- °^ respass. ship. A trespass, therefore, is, in itself and as such, action- able only at the suit of a person who is in possession of the property at the time of the act committed.^ 1 Supra, s. 51 (2). 2 Zeame v. Brai/ (1803), 3 East, 593. 3 Supra, s. 98. * See Pollock, Law of Torts, p. 360, 9th ed. Contra, Street, Founda- tions of Legal Liability, I. 16. 5 Ward V. Maccmleij (1791), 4 T. R. 4S9. 376 CONVERSION. fCHAP. X. Action by reversioner for permanent damase. Title of plaintiff and measure of damages. 6. Nevei-theless if a trespass does any permanent damage to the property, a reversionary owner or other person having a non-possessory interest in it lias a right of action for the loss so caused to him; and we need not ecruiDle at the present day to term such an injury to reversionary rights a trespass, although the remedy under the old practice was not trespass but case.^ 7. The rules already set forth under the head of conversion, •with respect to the title to property, and with respect to the measure of damages, ajiply to the wrong of trespass also. Wrongful damage distinguished from trespas.s. § 114. Wrongful Damage to Chattels. 1. The injury of wrongful damage to chattels consists in an act done -s^ithout la-wful justification by which jDhysical harm is done to chattels. Such harm may be caused either intentionally or neg-ligently, and is actionable even in the absence of intention or negligenoe in those exceptional cases in which absolute liability is impiQised by law: as, for ex- ample, in the case of harm done by animals. 2. The injury of wrongful damage is largely coincident with that of trespass, but the coincidence is far from complete, and these Uxo wrongs require to be classed sejDarately. For there may be trespass without physical harm, as we have seen ; and there may be wrongful damage without trespass, as when a bailee does wilful or neg-ligeait harm to the property bailed to him, or when negligent or accidental harm is done consequentially and not directly, as in the case of damage by animals or fire. It is true, indeed, that the distinction between direct and consequential damag^e is now of no practical importance, but it remains still, as much as ever, the only means of defining the injury of trespass. § 115. Wrongful Loss of Chattels. We have ah'eady seen that although the act of wrongfully ausing a loss of the possession of chattels amounts in most 6 Mears v. London # S. W. Rly. Co. (1862), 11 C. B. (N. S.) 850. SECT. 115] WRONGFUL LOSS OF CHATTELS, 377 cases to the wrong of conversion, this is not invai'iahly so. It amomiting to 1 1 1111-1 II. -1 n 1 1 conversion, depends on whether the loss is the result oi any wiliul and wrongful interference with the chattels. A loss not so resulting is no conversion, ^ and must therefore be separately classed as a distinct form of injury. Thus, if a carrier or ■\^ arehouseman delivers goods by mistake to the wrong- person, he is liable in certain circumstances for a conversion, but not if he loses them by negligence. He could not in this latter case have been sued under tlie old practice in trover, but only in detinue, case, or assumpsit. So he who negli- gently leaves open the gate of a field, whereby cattle ©scape and are lost, is guilty of no conversion, but only of having caused by negligence a wrongful loss of chattels. 1 Supra, s. 97 (2). 378 CHAPTEE XI. INJURIES TO THE PERSON. Injuries to the person are of four kinds — namely, Death, Assault, Bodily Hai'm, and False Imprisonment. § 116. Death. Causing death 1 . At common law it is not a civil wrong to cause the death "°rono°at ^^ ^ human being. The wrong done to the deceased himself common law. \)j i]^q taking away of his life dies with him, in accordance with the maxim Actio personalis moritur cum persona ; and neither the mental suffering nor the matei-ial loss inflicted upon his family or upon other persons having an interest in his life is regarded by the common law as any ground of action.^ Although a husband can sue at common law for any wilful or negligent haxm done to his Avife, whereby he is temporarily deprived of her society or services, he cannot sue in respect of that permanent deprivation which he suffers by reason of her death. ^ A father's rights in respect of his children are similarly limited. Thus, in Oshorn v. Gillett^ a father sued at common law for the death of his daughter, who had been negligently run over and killed by the de- fendant. The defendant pleaded that the deceased had been killed on the spot, and therefore that the plaintiff had not been deprived of the services otO his daughter otherwise than 1 Baker v. Bolton (1808), 1 Camp. 493; Osborn v. Gillett (1873), L. R. 8 Ex. 88; Clark v. London General Omnibus Co., (1906) 2 K. B. 648; The Amerika, (1914) P. 167. 2 Baker v. Bolton (1808), 1 Camp. 493. 3 (1873), L. R. 8 Ex. 88. It does not appear from the report of this case why the action was not brought under the Fatal Accidents Act. Under this Act damages could in such a case be recovered to the extent of the value of the daughter's gratuitous services to her father. Berry V. Humm # Co., (1915) 1 K. B. 627. SECT. 116] DEATH. 379 by her death; aucl it was held hy tlio Coui't of Exchequer that tlie plea way good. Had the- death ensued after an intea-val only, the plaintiff would have had a good cause of action for loss of service during- that interval, but none in respect of the death. So in Clark v. London General Omni- bus Co.^ it was decided by the Court of Appeal that a father cannot recover even the funeral expenses incurred by him in respect of the deatli of his child killed by the negligence of the defendant. In Jackson v. Watson and Sons,-' however, it was decided AlUervi by the Court of Appeal that this rule does not apply in an contract, action for breach of contract, but is limited to cases of pure tort . Where the breach of a contract made Avith the plaintiff results in the death of some third person in whose life the plaintiff has an interest, the damages recoverable in an action of contract will, it seems, include any pecuniar}- loss resulting, not too remotely, from that death. Thus, in the last cited ease, a husband, in an action for breach of warranty in a contract of sale, recovered damages (independently of the Fatal Accidents Act) for the death of his wife caused by eating certain poisonous food sold to him by the defendants. In other ANords, the killing of a human being, although not ■ itself a cause of action, may be taken into account in assessing damages for an independent cause of action in contract.^ 2. This rule that no man has any legalh- protected interest AiUer by in the life of another has been to a great extent derogated ,j,j^ j,' j from bj- statute, but it still remains the general principle, the Accidents statute in question liaving merely established special ex- ceptions to it. By the Fatal Accidents Act, 1846,'^ other- ■wise kno\\n as Lord Campbell's Act, it is a civil wrong, actionable by or on beh.alf of the near relatives of the de- ceased, to cause the death of a human being, if the deceased himself would have had a right of action had he been merely injured and not killed, and if those relatives have suffered a pecuniai'y loss in consequence of his death. -t (1906) 2 K. B. 648. 5 (1909) 2 K. B. 193. 6 Baker v. Bolton (1808), 1 Camp. 493, is distinguished as being in form an action of tort, although the act of the defendant was also a breach of contract. 7 9 & 10 Vict. c. 93. 380 INJURIES TO THE PERSON. [CHAP. XI. What relatives entitled. Limitation of action. Apportion- ment of damages. Not part of deceased's estate. Action by relatives is dependent on existence of cause of action vested in deceased himself. 3. The relatives -whose interests aa:e thus protected are the following: Husband, wife, cliildren, grandchildren, step- children, father, mother, step-parents, and grandparents.* Illegitimate children arc not included, ^ but posthumous chil- dren are. 10 4. The action must be brought within twelve months (or, in the ease of loss of life by collision at sea, witliin two years) after the death by the executor or administrator of the deceased on behalf of the relatives; but if there is no executor or administrator, or if he does not commence an action within six -months, any relative entitled to the pro- tection of the .Vet may sue in his own name on behalf of himself and the others. ^^ 5. The amount recovered is divisible among the relatives in the proportions fixed by the jiuy, having regard to the loss suffered by each of them.i^ jf i\^q claim is settled without action, the shares of the rolati\'es may be determined by the Court in proceedings instituted for that purpoise.^^ 6. The amount reco'\-ered is not part of the estate of the deceased so as to be liable for his debts. The executor or administrator recovers it, not in Ms ordinary capacity as the personal representati^'e of the deceased, but in a special capacity- in right of the relatives. 7. There is no right of action unless the deceased himself could have sued had he been merely injured by the de- fendant's act and not killed. Therefore, if he has in his lifetime, in the interval between the accident and his death, accepted full compensation from the defendant, and so extin- guished his right of action, his relati^-^es oamiot sue in respect of his death. 1^ The same- result foUows if he has been s 9 i: 10 Vict. c. 93, s. 5. 9 J}icl-iiimii ■/. N. E. My. Co. (1863), 2 H. & C. 735. i» The Gcorqe and Micluird (1871), L. R. 3 A. & E. 466. 11 9 6c 10 Vict. 0. 93, s. 3, as amended by 27 & 28 Viet. o. 95, s. 1; Maritime Conventions Act, 1911, s. 8; The Caliph, (1912) P. 213. The relatives may sue even within the six months if there is no executor or administrator. HoUeran v. Bagnell (1879), 4 L. R. Ir. 740. 12 9 & 10 Vict. c. 93, s. 2. See 27 & 28 Vict. c. 95, s. 2. IS Buhner v. Buhner (1884), 25 Oh. D. 409. 11 Read v. Gt. Eastern Rhj. Co. (1868), L. R. 3 Q. B. 555. But see s. 37 (11), ^upra. SECT. 116] DEATH. 381 guilty of contributory neg-ligeuce,!'' or if lie agreed to take the risk of the accident on himsolf so as to exclude any right of action in aocordarico witli the maxim Volenti iion fit iiijiiria,^^ or if at the time of liis death the Statute of Limitations has already run against him.^^ S. There is no right of action on behalf of any relative No cumpensii- , , , . , . „ , tion without ■wlio cannot show some pecuniary loss lu consequence of the pecuniary death of the deceased. i'^ Nodiing can be claimed merely by ^°^**- way of solatium for the mental suffering and bereavement, nor is there any action for nominal damages in the absenoe of proof of actual loss.^^ There is, however, a sufficient pecuniary loss if the claimant can show some reasonable expectation of pecuniary benefit from the ooutinuance of the deceased's life ; and it is not neoessai-y that the benefit should be derived from the deceased as a matter of right, for a reasonable expectation of voluntary bounty is enough. ^o Thus a working man can recover damages for the death of his wife in respect of the loss of the pecuniary value of her domestic services. ^^ Nor is it necessary that any benefit should have been actually received from the deceased during his lifetime. 22 The benefit must be derivable, however, from the claimant's relationship to the deceased, and not meroh- from a contract between them.^^ Funeral expenses have 15 Senior v. jr'ard (1859), 28 L. J. Q. B. 139; Wright r. Midland Sly. Co. (1884), 51 L. T. 539. 16 Griffiths V. Earl of Dudley (1882), 9 Q. B. D. 357. 17 Williams V. Merset/ Docks # Harbour Board, (1905) 1 K. B. 804: British Electric My. Co. v. Gentile, (1914) A. C. p. 1042. Nevertheless the cause of action so conferred by the Act upon the relatives of the deceased is a new cause of action, and not merely a continuance of that which was formerly vested in the deceased himself. Consequently if the period of limitation was not complete as against the deceased at the date of his death, it cannot be completed afterwards, so as to bar the claim of the relatives under the Act. This claim is subject to its own period of limitation as fixed by the Act itself and commencing on the death of the deceased, and is not subject to the Statute of Limitations affecting the claim of the deceased himself. See the case last cited, in which the Privy Council disapproved of the contrary decision of a Divisional Court in Markey v. Tolworth Hospital District Board, (1900) 2 Q. B. 454. IS Blake v. Midland Rlij. Co. (1852), 18 Q. B. 93. 19 Duckworth v. Johnson (1860), 29 L. J. Ex. 25. 20 Franklin v. S. E. Rly. Co. (1858), 3 H. & N. 211. 21 Berry v. Humm <^ Co., (1915) 1 K. B. 627. 22 Taff J'nlc Ely. Co. v. Jenkint, (1913) A. G. 1. 23 Sykes v. .V. E. Rly. Co. (1875), 44 L. J. C. P. 191. 382 INJURIES TO THE PERSON. [CHAP. XI. Effect of life assurance. Felonious killinif. Concurrent rights of action. been held not to be a pecuniary loss resulting from the death within the meaning of this rule, though it is difficult to see why they arc not.-'^ -■' 9. By the Fatal Accidents (Damages) Act, 1908, it is pro- vided that in assessing damages " there shall not be taken into account anj sum paid or payable on the death of the deceased under any contract of assurance or insurance.'-'^ 10. The fact that the killing of the deceased amounted to the felonj' of murder or manslaughter does not exclude or even suspend the romod}' by action. 2'i' 11 . Where the deceased himself has a cause of action which survives him notwithstanding the maxim Actio personalis moritur cum persona, his personal representative has a double right of action; he can sue both on behalf of the deceased's estate and also on behalf of the relatives. Thus, if a passen- ger on a railwa}' is injured by the negligence of the company, and dies after an interval, his executor can sue as such for the medical expenses and other loss incurred by the personal estate by reason of the defendant's breach of contract, and he can also sue in another action for the compensation due to the relatives under the Fatal Accidents Act.^^ ^9 Assault and battery. § 117. Assault. 1. The intentional application of force to the person of another without lawful justification amounts to the wrong 2i Dulton V. S. E. Ely. Co. (1858), 27 L. J. C. P. 227; Clarlc v. London General Omnibus Co., (1906) 2 K. B. 648. 25 As to the nature of the loss which is required to give a good cause of action, see the following cases in addition to those already cited: Stimpson v. Wood (1888), 57 L. J. Q. B. 484; Retherington \. N. E. Rly. Co. (1882), 9 Q. B. D. 160; Pym v. Gt. N. My. Co. (1863), 4 B. & S. 396; Harrison v. L. S; N. W. Rly. Co., 1 Cab. & E. 540. 26 As to the former law on this point, see Grand Trunk Rly. of Canada v. Jennings (1888), 13 A. 0. 800; Sicks v. Newport Rly. Co. (1857), 4 B. & S. 40;3 n. 2' 9 & 10. Vict. o. 93, s. 1. 28 Leggott v. Gt. N. Rig. Co. (1876), 1 Q. B. D. 599. 23 An action will lie under this Act on behalf of the alien relatives of an alien killed upon the high seas, for the benefits of the Act are not limited to British subjects and resident aliens. Davidsson v. Sill, (1901) 2 K. B. 606. The decision of Darling, J., to the opposite effect in. Adam V. British 4' Foreign Stemnship Co., (1898) 2 Q. B. 430, must be regarded as unsound. I i : i i SKCT. 117] ASSAULT. 383 of assault. This is so, ho\ve\ er trivial the amount or nature of the force may be, and even though it neither does nor is intended nor is likely or able to do any manner of harm. Even to touch a person without his consent or some other la-nrful reason is actionable. ^ For the interest that is pro- tected by the law of assault is not merely that of freedom from bodily harm, but also that of freedom from such forms of insult as may be due to interference with his person. In respect of his personal dignity, therefore, a man may recover substantial damages for an assault which has done him no physical harm whatever.- 2. Intentionally to bring any material object into contact Meaning of with another's person is a sufficient application of force to ^'™ °^'^'^' constitute an assault: for example, to throw water upon him, or to pull a chair from under him whereby he falls to the ground. 3 So it is an assault forcibly to take from him some chattel which he holds.* 3 . The act of putting another person in reasonable fear of Assault an immediate assault (as already defined) by means of an act battery, amounting to an attempt or threat to commit an assault amounts itself to an actionable assault . In the older language of the law the term assault was limited to this species, while the actual application of force was distinguished as battery. In popular si^eech, however, the term assault includes both; and there is no reason Avhy legal terminology should not acknowledge the same use of it. Mere Avords do not consti- tute an assault however insulting or even menacing; the intent to do A'iolence must be expressed in threatening acts, not merely in threatening speech. Even threatening acts do not constitute an assault unless they are of such a nature as to put the plaintiff in fear of immediate violence. To shake one's fist in a man's face is an assault; to shake it at a man who by his distance from the scene of action is in- accessible to such violence is none. 1 Cole V. Turner (1704), 6 Mod. 149, per Holt, 0. J. 2 Se« above, s. 35. 3 Pursell V. Sorn (1832), 8 A. & E. 602; Sopper v. Seeve (1817), 7 Taunt. 698. * Green v. Goddard (1704), 2 Salk. 640. 384 INJURIES TO THE PERSON. [CHAP. XI. Assault a criminal offence. There need be no actual intention or power to use violence, for it is enough if the plaintiff on reasonable grounds believes that he is in danger of it. Thus, it is actionable to point a gun at a man in a threatening manner, even though to tho Imowledge of the defendant, but not to that of the plaintiff, it is unloaded. 5 But if there is no fear or no reasonable fear, there is no assault: as, for example, when a gun is pointed at a man behind his back.'^ 4. An assault is not merely a tort, but also a criminal offence, and the civil and criminal remedies are in general concurrent and cumulative. It is provided, however, by 24 ■& 25 Vict. c. 100, s. 45, that summary criminal pro- ceedings, whether they result in a eonviotion or an acquittal (after an actual hearing on the merits), are a bar to any subsequent civil proceedings for the same cause. Bodily harm not amounting to assault. NerTous shock. § 118. Bodily Harm. 1. It is an actionable wrong to cause bodily harm to another person either (1) intentionally and without lawful justification, or (2) negligently land in breach of a duty to use care for the safety of that person, or (3) accidentally in those exceptional oases in which the law imposes absolute liability. This species of wrong is partially coincident with that of assault; but there are assaults which cause no bodily harm, and it is possible in two ways to inflict unlav^ff ul bodily harm without committing an assault — viz. (1) when it is inflicted negKgently and not wilfully, and (2) when, although wilful, it is inflicted othierwise than by the appKcation of physical force: for example, by administering a deleterious drug. 2. The term physical harm includes illness due to mere nervous shock : as when the plaintiff suffers in health through 5 E. V. St. George (1840), 9 C. & P. 483, at p. 493. Pollock on Torts, p. 220, 9th ed. The contrary opinion expressed in Blake v. Barnard (1840), 9 O. & P. 626, and in R. v. James (1844), 1 C. & K. 530, is probably unsound. * See, on the whole matter, Tuberville v. Savage (1669), 1 Mod. 3; Stephens v. Myers (1830), 4 0. & P. 349; Read v. Coker (1853), 13 0. B. 850; Cobhett v. Greij (1849), 4 Ex. p. 744; Osborn v. Veitcli (1858), 1 F. & F. 317. SECT. 118] BODILY HARJI. 386 tJae terror of a nai-row escape from suddeu death, or through agitation caused by a false alarm wilfuUy given by tin- defendant.! 3. It need not be doubted that the term physical harm Pain, also includes physical pain, even though unaccompanied b}- any bodily lesion or illness. In respect of merely mental suffering, on tbe other band, such as fear, it seems that no action will lie even though it has been wilfully caused by the defendant. "Mental pain or anxiety the law cajinot value and does not prebend to redress. "^ 4. It was held by an Irish Court in Walker v. Great Bodily harm Northern Railway Company of Ireland^ that no action can ohiTd. °^'^ be brought by a child for physical injuries inflicted on it before birth, by reason whereof it is born deformed or diseased. In this case the plaintiff's mother had, while the plaintiff was en ventre sa mere, been a passenger on the rail- way of the defendants, and was there injured in a collision caused by the defendants' negligence, and the plaintiff was subsequently and consequently born deformed. The decision of two of the four Judges, however, proceeded on the ground that the defendants owed no duty of care to a person of whose existence and presence they were unaware, and not on the more general ground that an unborn person has no legal right of personal security. It is difficult to see on what principle an existing but unborn child should be deprived of the protection of the law against wilful or negligent in- juries inflicted upon it. 1 Wilkinson V. JDownton, (1897) 2 Q. B. 57; DuHeu v. White, (ISOn 2 K. B. 669; Bell v. Gt. N. My. Co. (1890), 26 L. R. Ir. 428. The con- trary decision of the Privy Council in Victorian Railwa>/s Commissioners V. Coultas (1888), 13 A. C. 222, has bsen ropaateJly disapproved, and may be taken to be unsound. Coi/le v. John Watson, Ltd., (1915) A. C. p. 13. It remains open to the defendant, however, in any cue of this class to contend that in the particular circumstances of tha case the damage thus caused by nervous shoclc is too remote: as, for example, in Smith V. Johnson cited in Da'ieu v. White, (19H) 2 K. B. at p. 6r5. 2 Lynch V. Knight (1861), 9 H. L. C. at p. 598, per Lord Wensleydale. See SuHeu v. White, (1931) 2 K. B. at p. 673, per Kennedy, J. 3 (1891), 28 L. E. Ir. 69. S. 25 386 INJURIES TO THE PERSON. [cHAP. XI. False im- prisonment defined. DistinguisheJ from assault. "What amounts to imprisonment. Actual force not necessary. Partial deprivation of liberty not false im- prisonment. § 119. False Imprisonment. 1 . The wrong of f alse^ impiisonment cansists iu the act of arresting or imprisoning any person without lawful justifica- tion, or otherwise preventing him without lawful justification from exercising his right of leaving tlie place in Avhich ho is. 2. The wrong of false imprisonment is in most cases that of assault also, but not necessarily so; locking a man up: in a room in which he already is by his own act amounts to false imprisonment, but is no assault. In any case imprisonment is so special a form of assault as to require separate classifica- tion and consideration. 3. To constitute the wrong in question there need be no actual imprisonment in the ordinary sense — i.e., incarcera- tion. It is enough that the plaintiff has been in any manner wrongfully deprived of his personal liberty. A mere un- lawful arrest, for example, amounts in itself to false im- prisonment, and so does any act whereby a man is unlawfully prevented from leaving the place in which he is: for example, a house or a ship.- 4. Nor is it needful that there should be any actual use of force. A threat of force, whereby the submission of the person threatened is procured, is a sufiieient ground for such an action: for example, showing a man a warrant for his arrest and thereby obtaining his submission is itself an arrest, if it amounts to a tacit threat to execute the warrant by force if necessary; aliter if it a.mounts merely to a request, with no threat or intent to use force. ^ 5. To constitute imprisonment the deprivation of the plaintiH's libei-ty must be complete — that is to say, there must be on every side of him' a boundary drawn beyond which he cannot pass. It is no imprisonment to prevent him '^ The term false is here used, not in the ordinary sense of mendacious or fallacious, but in the less common though -well-established sense of erroneous or wrong; as in the phrases false quantity, false step, false taste, &c. 2 Warner v. Riddiford (1858), 4 O. B. (N. S.) 180. 3 Grainger v. Eill (1838), 4 Bing. N. O. 212; Arrowsmith v. Le Mesurier (1806), 2 B. & P. N. R. 211; Berry v. Adamson (1827), 6 B. & O. 528. SECT. 119] FALSK IMPRISONMENT. 387 from going in some directions, while he is left free to go as far a> he pleases in others. Thus, no action for false im- prisonment will lie for unla\vfully preventing the plaintiff from going along the highway and compelling him to go back.* 6. A question of some difficulty ai-ises as to the duly FaEure to J* • (» • , T 1 afford 01 an occupier oi premises towards persons who are upon facilities for those premises and who are unable to leave them unless leaving . premises, active measures are taken by the occupier in that behalf. Is the occupier bound to take such measures, and liable to an action of false imprisonmeat if he fails or refuses to do so? In Herd v. Weardale Steel Coke and Coal Co.^ certain miners, having been lowered down the defendants' mine, wrongly refused to continue their work, and demanded that they should be at once taken to the surface. The defendants, however, refused to do so, and stopped the working of the cage, by reason of which the miners were compelled to remain for some little time in the mine against their will. In an action for false imprisonment it was held by a majority of the Court of Appeal and by the House of Lords that there was no cause of action. Speaking generally, it may be said that the defendant in an action of false imprisonment can be held liable only for what he does in preventing the plaintiff from lea\ing the premises, not for what he fails to do for the purpose of enabling him to leave the premises. If my neighbour falls down a pit upon my land I am under no obligation to pull him out. This rule, however, has no application in those special cases in which the facts are such as to impose a posi- tive legal obligation on the defendant to take active measures for the plaintiff's release. Such an obligation may arise from more than one source. Where it arises from a contract between the parties, it may be a question whether the deten- tion of the plaintiff by reason of a failure to perform the obligation amounts to the tort of false imprisonment or 4 Bird V. Jones (1845), 7 Q. Bv 742; Robinson v. Balmain Ferry Co., (1910) A. C. 295. » (1913) 3 K. B. 771; (1915) A. C. 67. 25(2) 388 INJURIES TO THE PERSON. [chap. XI. Sabeaa corpits. False imprisonment distinguished from mali- cious prose- cution and abuse of process. merely to a breach of contract. In Herd v. Weardale Steel Coke and Coal Co. the opinion was expressed by Buokley, L. J., and Hamilton, L. J., that the injury in such a case was a breach of oontract only.^ This, however, may be a mattei- of some doubt. The oase may be one of those in which the defendant, by making a conti'act, places himself in such a position that he cannot break it without also com- mitting a tort. A surgeon who commences an operation and then refuses or neglects to complete it, is clearly liable in tort as well as in contract for any injury so inflicted on his patient, though he was under no duty apart from his contract to perform the operation at all. So if a mining company takes a miner down the shaft, and in breach of contract refuses to bring him up again, it may well be that on the same principle the resulting imprisonment of the plaintiff is an actionable tort. The question is of practical importance for the reason, inter alia, that exemplary damages are recoverable only in an action of tort. 7 . To continue a lawful imprisonment longer than is justi- fiable is actionable as false imprisonment.'' 8. The remedy for false imprisonment is not merely an action for damages, but the recovery of liberty by means of a writ of habeas corpus. The law as to this latter remedy pertains, however, to procedure, and cannot here be appro- priately considered. 9. No action for false imprisonment wiH lie against a person who has procured the imprisonment of another by obtaining against him a judgment or other judicial order of a Court of Justice, even though that judgment or order is erroneous, irregular, or without jurisdiction. The proper remedy for wrongfully procuring the judicial imprisonment of the plaintiff is not an action for false imprisonment, but one for malicious prosecution or other malicious abuse of legal process, the nature of which we shall have to consider in a subsequent chapter. We shall there see that in an 8 (1913) '3 K. B. p. 789, p. 793. ' Mee V. Cruikslmnh (1902), 86 L. T. 708; Miffotti v. Golvill (1879), i 0. P. D. 233. SECr. 119] FALSE IMPRISONMENT. 389 action of that description the plaintiS can succeed only if he proves both malioe and the absence of any reasonable and probable causie for the proceedings complained of; whereas in an action for false imprisonment, just as in all other cases of trespass to person or property, liability is created, in general, even by honest and inevitable mistake. The rule, therefore, that no action for false imprisonment will lie against a litigant in respect of judicial imprisonment pro- cured by him is a valuable protection against liability for error in the course of legal proceedings. iThus, in Austin v. Dowling,^ it is said by Willes, J.: " The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, partiep being before a jnagistrate, one makes a charge against another, whereupon a magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because ho does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment." Accordingly, if the plaintiff has been wrongly arrested without warrant and taken before a magistrate, who remands him in custody, he must sue in respect of his imprisonment before the remand in an axition for false imprisonment, but in respect of that which is subsequent to the remand in an action for malicious prosecution.^ The reason for this distinction is tliat a man cannot be sued in trespass, or therefore for false imprisonment, unless he himself, whether personally or by his agent, has done the act complained of. A Court of Justice, however, is not the agent of the litigant, but acts in the exercise of its own independent judicial discretion. /Therefore the acts of a Court of Justice cannot be imputed to the litigant at whose suit they have been done. The litigant can be charged only 8 (1870), L. E. 5 C. p. p. 540. 9 Zoek V. Ashton (1848), 12 Q. B. 871. See also Msee v. Smith (1822), 1 D. & B. 97. 390 INJURIES TO THE PERSON. [cHAP. XI. with having maliciously and without i-easonable cause exar- cised his right of setting a Oourt of Justice in motion. 1° Excess of 10. This exemption of the litigant from any liability for false imprisonment extends even to cases in Avhioli the Court ordering the imprisonment has acted Avithout jurisdiction. It is the right of every litigant to bring his case before the Court, and it is for the Court to know the limits of its own jurisdiction and to keep within tbem.^^ Liability for H. If^ however, the litigajit, after procuring a judicial by ministerial Order of imprisonment, proceeds to execute it by means of officers of the goj^g ministerial officer whom ho thereby makes his agent, he may thereby make himself responsible in an action for false imprisonment, if the order was one which ought not to have been made.^- Whether he will be so responsible or not depends on whether tlie order is of such a nature as, even though vTongful, to be a protection to those who act in reliance on it. 12. An action for false imprisonment will lie against any person who authorises or directs tlie unlawful arrest or deten- tion of the plaintiff by a merely ministerial officer of the law, as distinguished from a judicial officer or Court of Justice. He who sets in motion a merely ministerial officer, such as a constable, has no protection similar to that which is extended to the litigant in a Court of Justice. He makes that minis- terial officer his agent, and is responsible for any arrest or detention so procured or authorised, as if it were his own act. It is necessary, however, even in such a case to prove actual direction or authorisation, such as is sufficient to make the ministerial officer the agent of the defendant. Mere information given to such an officer, on which he acts at his own discretion, is no ground of liability. ^3 10 See Brown t. Chapman (1848,), 6 C. B. 365; IFest v. Smallwood (1838), 3 M. & W. 418; Hope v. Evered (1886), 17 Q. B. D. 338; Lea v. Charrmgton (1889), 23 Q. B. D. 45, 272. " Carratt v. Morley (1841), 1 Q. B. 18; West v. SmaUwood (1838), a M. & W. 418; Blown v. Chapman (1848), 6 C. B. 365. 12 Painter v. Liverpool Gas Light Co. (1836), 3 A. & E. 433. 13 SopJcins V. Crowe (1836), 4 A. & E,. 774; IInrri>' v. Di^mum (1859), 29 L. J. Ex. 23; Grinham v. Willey (1859), 4 H. & N. 496. SECT. 119] FALSK IMPKISONMENT. 391 13. AYhat amounts to a lawful iustification for arrest or Arrest on , , . . . suspicion other detention is not a matter which oan here be fully con- of felony. sidei'«d. The most important case is the justifiable arrest of suspected criminals, and this pertains to the law of crimi- nal procedure. It may be stated here, however, that at common laA\ a person may ia^vfully arrest without warrant anj' one whom lie suspects, on reasonable and probable grounds, of having committed a felony. The question of reasonable and probable cause is, as in the analogous case of malicious prosecution, a question for the Judge and not for the jury.i'J^ There is a curious distinction between arrest by a private person and arrest by a constable. A private person justifying an arrest for a suspected felony must prove that a felony has actually been oomnaitted, whether by the person arrested or by some one else; and if in fact there has beeai no felony committed, it is no defence tliat thei*e was reason- able and probable cause for believing the person arrested to be guilty. In the case of ai'rest by a constable, on the O'ther hand, it is sufiicient that there was reasonable and probable cause of suspicion, even if no felony has been in fact com- mitted. ^^ Unlike the case of malicious prosecution it is not necessary for liability that the arrest should have been malicious; it is enough that it was without reasonable and probable cause. ^^ The burden of proving the existence of reasonable and probable cause is on the defendant. ^'^ There is no autliority at common law for arresting without warrant on suspicion of a misdemeanour', ^^ but by numerous statu- tor}- provisions power to effect such arrests is given in particular instances. ^i Lixler V. Pemimaii (1870), L. R. 4 H. L. S21 ; Ilailes v. Marks (1861), 7 H. & N. 56. ^■' BeckwUh v. Philby (1827), 6 B. & C. 635; Walters v. W. H. Smith ^ Sons, (1914) 1 K. B. 595. 16 See Eogg v. Ward (1858), 27 L. J. Ex. 443; Allen v. Wright (1838), 8 O. & P. 522. 1" Hicks V. 'Faulkner (1878), 8 Q. B. D. at p. 170. Aliter in actions for malicious prosecution. 18 Matthews v. Biddulph (1841), 3 M. & G. p. 395. 392 CHAPTEE XII. LIABILITY POR DANGEROUS PROPERTY. The purpose of this chapter is to oonsider the liability of the owners and possessors of dangerous property for harm done by it to other persons. The matter falls into three divisions dealing (1) with dangerous premises, (2) with dangerous chattels, and (3) with dangerous animals. In considering the liability of the owner or occupier of dangerous premises we are here oonoerned only with injuries suffered by persons who enter on these premises and there come to harm; injuries suffered by outsiders — by persons who without entering on the premises come to harm else- where {e.g., in an adjoining highway or on the neighbouring land) by reason of the dangerous state of the premises — ^fall within the wrong of nuisance, and have been already suffi- cdently adverted to under that head. They are governed by quite different principles from those with Avhich we are here oonoerned, and it is essential to bear in mind the distinction between these two classes of wrongs. In dealing with dangerous premises we shall consider first the liability of the occupier, and subsequently that of the 0uty of care towards persons entering premises. § 120. Liability of Occupiers for Negligence. The Rule in Indermaur v. Dames. 1 . Subject to certain qualifications which we shall consider later, the duty of an occupier towards a person who lawfully enters upon the premises is a duty to use reasonable care for the safety of that person. He is bound to use reasonable care in ascertaining any dangers which exist on the premise^, and to guard sufficiently against damage accruing therefrom. SECT. 120] LIABILITY OP OCCUPIERS FOE NEGLIGENCE. 398 This duty extends to all dangers -which exist there, whether due to the nature of the premis;es or to the nature of the opexations that are being carried on thei'e. The leading case on this matter is Indermaur v. Dames,^ Indermaur in which the occupier of a factory was held liable to the *"' plaintiff, who was the servant of a gasfitter employed by the defendant, and who, while testing csrtaia gas-fittings on the premises, fell through an unfeaced opening in one of the upper floors. It was contended that such a visitor enters at his own risk, and must take the premisesi as he finds them; but this contention was rejeoted. " With respect to such a visitor," it is said by the Oourt of Common Pleas, " we con- sider it settled law that he, using reasonable care on his own part for his own saf et}', 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 con- tributory negligence in the sufferer, must be determined by a jury as a matter of fact."^ 2. The rule in Indermaur v. Dames imposes upon the Heavens, occupier of premises liability for the dangerous condition not ®" ^' merely of the land .s of eases in which the duty is less. The first of these exceptions may be conveniently referred to as the rule in Fnmcis v. CockrcU,^^ and the second as the rule in Gautret v. Egerton.-^ We proceed to consider these rules in the suc- ceeding sections. § 121. Liability of Occupiers on a Warranty of Safety. The Rule in Francis v. Cockrell. 1 . When the occupier of premises agrees for valuable con- Warranty of sideration that some other person shall have a right to enter and use them for some specific purpose, the contract contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them. He is responsible, therefore, not merely for any dangers due to the negligence of himself or his servants, but also for those which are due to that of independent con- tractors or other persons. 2. This is the principle established in the leading case of Francis v. Francis v. Cochrll.^ .The defendant, in occupation of a °° ™ ■ racecourse, contracted with a builder for the erection of a stand thereon. The plaintiff purchased from the defendant a ticket entitling him to enter the stand to see the races. Through the negligence of the contractor the stand was im- properly constructed, and during the races it fell and injured 18 It ig on this principle that the actual decisions in Zucij v. Bawden, (1914) 2 K. B. 318, and Dobson v. Ilorsley, (1915) 1 K. B. 634, may, be supported. It might well have been held in these cases that there was no sufBcient evidence of negligence in maintaining the premises in a dangerous condition. This, however, was not the reason actually given for these decisions. i9 (1870), L. R. 5 Q. B. 184, 501. 20 (1867), L. E. 2 O. P. 371. i (1870), L. R. 5 Q. B. 184, 501. 400 LIABILITY FOE DANGEROUS PROPERTY. [cHAP. XII. the plaintiff who was upon it. It was held by the Court of Exchequer Chamber that the defendant was liable, although guilty of no negligence, by virtue of the implied warranty of safety contained in his contract with the plaintiff. " First,, there is the principle," says Kelly, C.B.,^ "which I hold to be well established by all the authorities, that one who lets for hire or engages for the supply of any article or thing, whethea? it be a carriage to be ridden in, or a bridge to be passed over, or a stand from which to view a steeplechase, or a place to be sat in by anybody who is to witness a spectacle, for a pecuniary consideration, does warrant and does im- pliedly contract that the article or thing is reasonably fit for the purpose to which it is to be applied; but, secondly, he does not contract against any unseen and unknown defect which cannot be discovered or which may be said to be undiscoverable by any ordinary or reasonable means of inquiry and examination." § 122. Liability of Occupiers to Licensees. The Rule in Gautret v. Egerton.^ Duty to bare 1 . There is a certain class of persons — distinguished as licensees or bare licensees — to whom an occupier owes no such duty of care as is established by the rule in Indermaur V. Dames. His only duty is to give warning of any con- cealed danger of loMch he actually knows. As the rule is often stated, his only duty is to refrain from knowingly leading tbe plaintiff into a trap by allowing him to enter without warning premises which he, the occupier, actually knows to be unsafe. But he is under no duty to make them safe, or even to ascertain whether they are safe or not. Presumably, however, the knowledge of any servant to whom the occupier has delegated the performance of his duty to the plaintiff is equivalent to the knowledge of the occupier himself .2 2 (1870), L. E. 5 Q. B. p. 508. ^ i (1867), L. E. 2 O. P. 371. 2 Cf. the rules as to proof of scienter in the case of dangerous animals; infra, s. 127. SECT. 122] LIABILITY TO LICENSEES. 401 A concealed danger within tho meaning of this rule of dis- closure is a danger whicfh is unkno^vn to the plaintiff, and is of such a nature that a i-easonably prudent man in the position of the plaintiff would not anticipate it or guard against it.^ 2. What classes of persons, then, are licensees within the Who are bare meajiing of this rule? A licensee may be defined as a person ^"^°^^^^- wlio enters on the premises by the permission of the occu- pier, granted gratuitously in a matter in which tlie occupier has himself no interest. The typical example is a gratui- tous license to use a way across the occupier's land for pur- poses which exclusively concern the licensee himself. He who asks and receives such a favour is deemed to enter on the terms that he agrees to take the premises as he finds them. He is to look after himself, axid can make no claim to be looked after by the occupier. In order that a person shall be deemed a bare licensee two conditions, therefore, must be fulfilled: — (a) The license must be gratuitous: if he pays for bis right to enter, he purchases at the same time a right of safety. (b) The license must be granted in a matter in which the occupier has himself no interest. If there is a common interest — if the permission is a matter of business, and not a matter of grace and favour — the person so entering is entitled to safety, even though the permission granted to him is gratuitous. 3. The leading case as to the rights of licensees is Gautret Gantret v. v. Egerton,^ in which it was held that the defendants, who ^*'^°- had gratuitously permitted the public to use a way through certain docks, were not bound to make this way safe, or liable to any one who suffered damage in consequence of its dangerous condition. " If I dedicate a way to the public," says Willes, J.,^ " whicb is fuU of ruts and holes, the public must take it as it is. If I dig a pit in it I may be liable for the consequences, but if I do nothing I am not." So in 3 Coohe V. Midland Gt. W. Ely. of Ireland, (1909) A. C. p. 238, per Lord Atkinson. * (1867), L. R. 2 C. P. 371. ^ Ibid. p. 373. 26 v. Dames 402 LIABILITY FOE DANGEROUS PROPERTY. [CHAP. XII. Hounsell v. 8myth^ the defendants were the occupiers of certain waste lands on which there was an unfenced quarry, and they tacitly aEowed the public to cross this land as a short cut between two highways. They were held not liable to a person who, being ignorant of the existence of the danger, crossed the waste on a dark night and fell into the quarry. In Southcote v. Stanley'^ a guest was held to be a bare licensee within the same principle, and failed to recover damages from his host for injuries suffered through the breaking of a glass door which had been left in a dangerous condition. Indermaur 4. The following passage from the judgment of Willee, J., in Indermaur v. Dames^ explains and illustrates the distinc- tion between licensees and other classes of persons: " It was also 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. 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. . . . 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 the duty of the occupier of a building with reference to persons re- sorting 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 — foi' 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 un- usual danger of which the occupier knows or ought to know. 6 (I860), 7 C. B. (N. S.) 731. ' (1856), 1 H. & N. 274. 8 (1866), L. R. 1 C. P. at pp. 285, 287, 288. SECT. 122] LIABILITY TO LICENSEES. 403 . . . 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. And if a customer were, after buying goods, to go back to the shop in order to com- plain of the quality or that the change was not right, he would be just as much there upon business which concei'ned the shopkeeper, and .as much entitled to protection during this accessory visit, though it might not be for the shop- keeper'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, lor servants, or persons whose employ- ment 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. "^ 5. The position of a licensee must be distinguished from License that of a person for whom the occupier has undertaken, even froi^^'" though gratuitously, to perform some service: for example, gratuitous a gratuitous contract of carriage. Such a contract imposes a duty of reasonable care in the performance of it, and this duty will extend to ascertaining the safe condition of the premises on which the contract is to be performed. Thus, in Harris v. Perry'^^ the plaintiff recovered damages for in- juries received in a collision due to the negligence of the defendant's servants in leaving an obstruction on the track, although he was being carried gratuitously on the defendant's railway. 9 See also, as to licensees, Smith v. London # 8t. Katharine's Docks Co. (1868), L. E. 3 C. P. 326; The Apollo, (1891) A. C. 499; White v. France (1877), 2 C. P. D. 308; Holmes v. iV. E. My. Co. (1869), L. R. 4 Ex. 254; Corby v. Hill (1858), 4 C. B. (N. S.) 556; Sullivan v. Waters <1864), 14 Ir. O. L. R. 460. i" (1903) 2 K. B. 219. 26(2) 404 Duty to licensee after entry. LIABILITY FOR DANGEROUS PROPERTY. [CHAP. XII. 6. What is the duty of an ocoupier towards a licensee after he has entered on the premises? It is clear that the occu- pier is liable if he knowingly creates a new souroe of con- cealed danger and gives no warning of it.^^ He is also liable if he or his servants do any positive act of negligpent misfeasance by which the licensee suffers harm, as by negli- gently driving over a person whom he has permitted to use a private way. "The grantee," says Cockburn, C. J., in Gallagher v. Humphrey,^- " must use the permission as the thing exists. It is a different question, however, where negligence on the part of the person granting the permission is superadded. It cannot be that, having granted permis- sion to use a way subject to existing dangers, he is to be allowed to do any further act to endanger the safety of the person using the way. The plaintiff took the permission to use the way subject to a certain amount of risk and danger, but the case assumes a different aspect when the negligence of the defendant — for the negligence of his servants is his — - is added to that risk and danger. "^3 No duty of care towards § 123. Liability of Occupiers to Trespassers. 1 . Hitherto we have confined our attention to the rights of persons who lawfully enter on dangerous premises and there come to liarm. We have now to deal with the position of mere trespassers. The general principle is that he who enters wrongfully enters at his own risk in all respects. A burglar who breaks his leg by falling down the stairs cannot complain that they were insecure, nor can a beggar recover damages 11 C*>fbt/ V. Sill (1858), 4 C. B. (N. S.) 556. 12 (1862), 6 L. T. (N. S.) p. 685. 13 See also Thatcher v. Great Western Rhj. Co. (1893), 10 T. L. R. 13; Tough v. North British Ely. Co. (1914), Sc. C. (Ot. Sess.) 291; French v. HUls Plymouth Co. (1908), 24 T. L. R. 644. In Batehelor* V. Fortescue (1883), 11 Q. B. D. 474, the judgment of the Court of Appeal proceeded merely on the ground that there was no evidence of negligence on the part of the defendant's servants, and does not support the reasons of the Court below, which seem inconsistent with the other authorities cited in this note. See the observations in Tough's case, svpra. SECT. 123] LIABILITY TO TRESPASSERS. 405 because lie is bitten by the dog.^ To a trespasser the occupier owes no duty either to see that his premises are safe, or to give warning of their danger — not even that limited duty of warning which he owes to a bare licensee. Thus, in Ponting V. Noalces^ the plaintiff and defendant were adjoining occu- pies of land, and the defendant had a yew tree growing on his land the branches of which extended close up to the boundary-line but did not cross it. The plaintiff's horse, reaching across the boundary, ate the leaves of the yew tree, and died in consequence. It was held that the defendant was under no liability, since he owed no duty of care in respect of trespassing animals. ^ So in The Grand Trunk Railway of Canada v. Barnett^ it was held that a trespasser on a railway train had no rigbt of action for damages for personal injuries caused by ooUision. 2. This general principle is subject, however, to two quali- Intentional fications. The first is that an occupier who intentionally trMpassers harms a trespasser by creating on his premises a eouroe of danger for that purpose is liable for the harm so done, unless the danger so created by him can be justified as being nothing more than a reasonable and therefore, lawful measure of self- defence. A man does not forfeit his legal rights by becoming a trespasser, and is not caput lupinuM to be treated as the occupier pleases. I must not throw stones at a man because he crosses my land without permisfeion; and for the same reason I must not intentionally lay a trap for him whereby he may, when trespassing, bring mischief upon himsielf. 1 8arch v. Blackburn (1830.), 4 O. & P. 297 ; see also Murley v. Grove (1882), 46 J. P. 360. 2 (1894) 2 Q. B. 281. 3 Nerertlieless it is an actionable wrong to place anything on one's land for the -purpose of attracting and injuring the animals of the adjoining occupier. Townsend v. Wathen (1808), 9 East, 277. It ia also actionable to have on one's premises any excavation or other danger so close to the adjoining highway as to interfere with the safety of passengers, even though mischief cannot happen to them except by accidental deviation from the highway and resulting trespass on the defendant's land. Barnes v. Ward (1850), 9 O. B. 392. The breach of a statutory duty to fence a railway may render the railway company liable for injuries caused to cattle trespassing on the adjoining hjghway and escaping thence on to the railway. Parhinson v. &arHang ^ Knott End RaUway Co., (1910) 1 K. B'. 615. * (1911) A. O. 361. 406 LIABILITY FOR DANGEROUS PROPERTY. [CHAP. XII. Thus, in Bird v. Holbrook^ the defendaat placed a spring gun in his garden to protect it from the depredations of thieves and trespassers. iTbe plaintiff was a boy who, in ignorance of the fact that any such danger existed, tres- passed in the garden in order to recapture a fowl whioh had strayed there. While so trespassing he was injured by the discharge of the gun, and he was held to have a good cause of action. This case was decided at common law, the cause of action having arisen before the passing of the Aot which made the setting of spring guns a criminal offenoe.^ In the 'earlier case of Ilott v. Wilkes^ the facts were identical, except that the plaintiff knew of the existence of the danger, and it was held that this knowledge prevented him froni having any remedy. It is difEcult to see on what principle such a decision can be supported. It seems an anomalous and incorrect application of the maxim Volenti non fit in- juria. If a man intentionally shoots me, am I debarred from an action because I knew of his intention and faced the risk? Am I guilty of contributory negligence and so y,.^ ,, deprived of redress because I fail to take sufficient care to avoid a mischief which another has wilfully sought to inflict upon me?8 If, however, the source of danger intentionally created on the defendant's property is nothing more than a reasonably necessary means of protecting that property from trespass, he is under no liability for injury so suffered by a trespasser. Although it is not lawful to defend one's land by means of a spring gun or a mine of dynamite, it is lawful to protect it by means of spikes or broken glass upon the top of a wall,^ or by a barbed-wire fence, or by a dog accustomed to bite man- kind,i° unless, presumably, the dog is so savage and so ^ (1828), 4 Bing. 628. 6 7 & 8 G^eo. IV. c. 18. See now 24 & 25 Vict. o. 100, s. 31. ' (1820), 3 B. & Aid. 304. 8 See Street's Foundations of Legal Liability, Vol. I. p. 69, for Americaji authorities on this point. 9 Deane t. Clayton (1817), 7 Taunt, p. 521. 10 Barch v. Blackburn (1830), 4 O. & P. p. 300; Broch v. Copeland (1794), 1 Esp. p. 203. SECT. 123] LIABILITY TO TRESPASSERS. 407 powerful as to be likely to cause serious bodily harm. Whether such lawful dangers are known to the trespasser or not, he has no cause of action for injuries which he receives from them. The same rule applies to the trespasses of animals. In Jordin v. Crump^^ it was held that the setting of dog-spears in a wood for the purpose of killing dogs who there hunted hares was no cause of action at the suit of the owner of a dog which was so killed. 3. A second qualification is that the occupier is probably Duty liable even to a trespasser for positive acts of negligent mis- trespassers feasance done by himself with knowledge of the trespasser's known to be presence. The occupier's exemption from any duty of care to a trespasser applies only to the dangerous state of the premises, not to acts done on the premises with knowledge of the trespasser's presence. He who shoots upon his land owes a duty of care not only to persons lawfully there, but to trespa,ssers whom he knows to be there. ^^ 4. It is sometimes dif&cult to distinguish between a tres- Who are passer and a person entering lawfully by the tacit permission ti^espassere. of the occupier. Thus, the occupier tacitly invites and permits certain classes of persons to enter his garden gate and oome to the front door. If his dog bites a person so entering, liability will depend on whether that person falls within the class of persons so tacitly invited; for otherwise he is a mere trespasser to whom no duty is owing. Who, then, are thus entitled to enter, and to complain of injuries received? What shall be said, for example, of hawkers, beggars, tract distributors, canvassers, strangers entering to ask their way? The only acceptable conclusion would seem to he that no person is to be accounted a trespasser who enters in order to hold any manner of communication with the occupier or any other person on the premises, unless he knows or ought to know that his entry is prohibited. Moreover, the acquiescence of the occupier in habitual tres- passes may be evidence of tacit leave and license, so as to 11 (1841), 8 M. & W. 782. 12 See Petrie v. Rostrevor Owners, (1898) 2 Jr. R. 556. 408 LIABILITY FOR DANGEROUS PROPERTY. [CHAP. XII. transform the trespasser into a licensee, and confer upon him accordingly that limited right of protection which has been explained in the preceding seotion.i^ Injuries to chfldren on dangerous premises. Trespassing ehildxen. § 124. Liability of Occupiers to Children. 1. Hitherto in dealing with the liability of occupiers of dangerous premises it has been assumed that the person enter- ing on these premises and there coming to harm is an adult, capable of looking after himself. It is necessary now to consider how far, if at all, the foregoing principles are sub- ject to modification in their application to young children, and how far, if at all, a special duty of care and protection is due to such children over and above that which is due to adults. 2. Is an occupier of dangerous premises bound to take precautions against children trespassing thereon and coming to harm ? In the much discussed case of Railroad Company V. StouP- the Supreme Court of the United States held that such a duty exists where the premises are such as to be an attraction or allurement to young children . In this case the plaintiff was a child of six years of age, who with his com- panion had trespassed upon the premises of the defendant railway company in order to amuse himself by playing with a turn-table, and who while so employed had his foot caught and crushed. It was held that the company was liable in damages for failure to take due precautions either to prevent children from trespassing or to safeguard them by locking the turn-table. This decision has been the subject of repeated consideration in the United States, being followed in certain jurisdictions and rejected in others, and the pre- vailing tendency is now to treat this case as imposing an undue and unreasonable burden of care on the occupiers of 13 Coohe V. Midland 6ft. W. My. of Ireland, (1909) A. C. 229; Lowery V. Walker, (1911) A. C. 10. In view of certain observations made by the House of Lords in the last-mentioned case, the law as to the rights of trespassers cannot be regarded as yet definitely settled. 1 (1873), 17 Wall. (U. S.) 6S7. SECT. 124] LIABILITY OF OCCUPIERS TO CHILDREN. 409 premises.- In England it may be said witli some confidence that no sucli rule of liability is recognised? In Jenkins v. Great Western Uailicay Co.^ the plaintiff was a child two and a half years old, who trespassed on the defendant com- pany's railway line by getting through or over the fence which separated it from the highway, and was there run down and injured by a train. On the railway premises and imme- diately adjoining the fence was a pile of sleepers, and children Avere in the habit, with the knowledge and tacit acquiescence of the company, of entering upon the railway jpremises and playing on this pile of sleepers. Nevertheless, it was held by the Court of Appeal that the company was under no liability. The tacit permission to enter the pre- mises was confined to the locality of these sleepers, there was no permission to stray upon the railway line itself, and the company was under no legal duty to take precautions to prevent such trespasses. This would seem to be good sense as well as good law. The humanitarian impulse which prompts such decisions as that of Railroad Company v. Stout^ and seeks to impose upon the occupiers of premises a legal duty in the guardianship of infant trespassers wiU in the long run do more harm than good. The duty of preventing babies from trespassing upon a railway line should lie upon their parents, and not upon the railway company. 3. Where, however, an occupier habitually and knowingly Distinotion acquiesces in the trespasses of children, these children cease pas^rs'and^" to be trespassers and become licensees, and the occupier owes licensees, to them a certain duty of care and protection accordingly. In Cooke v. Midlcmd Great Western Railway of Ireland^ the plaintiff was a child between four and five years of age who was injured while playing with his companions on a turn-table on the defendant company's railway premises. The turn-table was kept unlocked and was close to a public road. The company's servants knew that children were in the habit of entering on the premises from the road for the X."- Ma^!f V U-. I'c^i ^.^..^K ^^ Co . , 1'u-'-, . y^ I]" ifvt> , Cfy. 2 See Burdick on Torts, §§ 658-569, 3rd ed. 3 (1912) 1 K. B. 525. * (1873), 17 Wall. (U. S.) 657. 5 (1909) A. O. 229. 410 LIABILITY FOK DANGEROUS PROPERTY. [CHAP. XII. Measure of duty towards infant licensees. purpose of playing with the turn-table, and no precautions were taken by the company, either to exclude the children or to lock the turn-table, so as to prevent it from being an instrument of mischief. It was held by the House of Lords that there was evidence for a jury of actionable negligence on the part of the railway company — not, as in Railroad Co. V. Stout, ^ on the ground that there is any duty of care towards trespassing children, but on the ground that the habitual acquiescence of the company was sufficient evidence that the plaintiff was not a trespasser, but was on the rail- way premises with the leave and license of the company.'' 4. What, then, is the measure of the duty thus owed by an occupier towards young children who so enter upon dangerous premises by his leave or license, express or im- plied ? We have already seen that in the case of an adult licensee the only duty owing to him is that of warning him against any concealed danger actually known to the occupier — the duty of not leading him into a trap known to the occu- pier and not known to the licensee. As to all other dangers, the licensee must take the premises as he finds them and must run the risk. How far is this principle applicable without modification to the case of children ? As to this, tliere are the' following observations to be made: — (a) The duty towards a child is more extensive than that towards an adult, inasmuch as many dangers which would be open and obvious to the adult may be concealed and secret traps for the child. "The principle that the owner of land upon which a licensee enters on his own business or for his own amusement is only responsible for injuries caused to the latter by hidden dangers of which the former knew but of which the licensee was ignorant and could not by reasonable care and observation have detected, must in any given case be applied with a reasonable regard to the physical powers and s (1873), 17 Wall. (U. S.) 657. ' See the explanation of Oooke's case in Jenkins v. Gt. TV. Rly. Co., (1912) 1 K. B. 525. SECT. 124] LIABILITY OF OCCUPIERS TO CHILDREN. 411 mental faculties which the owner, at the time he gave the license, knew or ought to have known the licensee possessed."^ (6) To give warning of danger is not sufficient if the licensee is too young to profit by it. In such cases the occupier owes more than a duty of warning': he is bound to take all duo care to protect the child from the risks to which he is exposed by reason of the invitation or permission to enter upon the dangerous premises. Whether in any particular case a mere warning is a sufficient performance of the occupier's duty, presumably depends on whether the child has attained sufficient discretion to render his act in knowingly exposing himself to the danger of which he has been so warned an act of contributory negligence. In Cooke's case^ no warning of danger was given by the defendants; the judgments, however, do not proceed on this ground, but lay down the principle that in such cases there iS a duty of care towards the licensee, and not merely a duty to give him notice of danger. (c) The duty of dare which is so owing to^ an infant licensee is, as in all other cases, merely a duty of reasonable care. There is no duty to make premises absolutely safe before allowing a child to enter upon them. There are few premises on which an inquisi- tive and adventurous child has no opportunities of coming to harm. It is sufficient if they are reason- ably safe, so that the child is not unreasonably exposed to exceptional dangers over and above those which beset him in his daily adventures.^" 8 Cooke V. Midland. G. W. My., (1909) A. C. at p. 238, per Lord Atkinson. ^ Ihid. /iilding. of the part so retained by him to the usual obligations and liabilities of an occupier, both as regards his own tenant and as regards strangers. Thus, in Miller v. Haricock'^ the defendant owned a build- ing the different floors of which were let as chambers or ,"■•' offices, while the staircase remained in the possession of the "^J,. ' defendant. The plaintiff entered the building for the pur- '^^ ;.. ?•>-' pose of collecting a debt due by one of the tenants, and there '^''^■-^l' '^' •' fell and broke his leg in consequence of the dangerous dis- " ' ^' repair of the staircase. It was held by the Court of Appeal :'-. that the defendant was liable, and it seems clear that he ' ' ' would have been equally liable if the plaintiff had been one of /" , , his tenants instead of a stranger .^ 6 The liability of a landlord towards an intending tenant who is in- specting the premises falls within the rule in Indermaur v. Dames, s. 120, supra. Wright v. Lefev&r (1903), 51 W. E. 149. ' (1893) 2 Q. B. 177. 8 See also Hargroves v. Hartopp, (1905) 1 K. B. 472. The case of Ivay V. Hedges (1882), 9 Q. B. D. 80, is insufficiently reported, and it is not clear what the precise facts or the grounds of the decision were. To reconcile it with Miller v. Hancock we must assume that the dangerous condition of the railing was known not only to the defendant but to the plaintiff himsielf. See the observations in Tough v. North British Sly. Go. (1914), Sc. C. (Ct. of Sess.) 291. In Huggett v. Miers, (1908) 2 K. B. 278, the defendant was, as in Miller v. Hancock, the landlord of a building let out in flats. The passages remained in the possession of the landlord, but were during business hours kept lighted by the various tenants. The plaintiff, a servant of one of the tenants, attempted to leave the building in the evening after all the lights had been extin- guished, and suffered personal injuries by losing his way in the dark. The Court of Appeal distinguished Miller v. Hancock, and held the defendant not liable. A person who, after office hours, attempts to find his way along unlighted passages does so at his own risk. There is no duty on a landlord to keep his premises at all times lit by artificial light, and no implied invitation held out by him to other persons to use them while unlighted. The case is not analogous to that of hidden danger caused by want of repair. Notwithstanding certain observations made in this case, it is submitted that Miller v. Hancock does not depend upon any express or implied contract between tlie landlord and his tenants (a contract which would be res inter alios acta and irrelevant), and that the case is merely an application of the general principle of Indermaur 414 LIABILITY FOE DANGEROUS PROPERTY. TcHAP. XII. Landlord not liable to strangers. Otherwise in cases of negligent misfeasance. 5. The landlord's exemptiom from liabiKty for dangers existing on premises in the occupation of his tenant extendis not merely to injuries suffered by the tenant himself, but to those suffered by other persons entering on the premises during the tenancy. ^ ,The lease transfers all obligations towards such persons from the landlord to the tenant. 6 . This is so even if the landlord has by contract with the tenant taken upon himself the duty of keeping the premises in repair. Such a contract is res inter alios acta, and confers upon strangers no rigtts against the landlord which they would not have had without it.i° 7. It is to be observed that the foregoing rules as to the exemption of a landlord from liability for the dangerous con- dition of his property relate solely to his acts of omission or non-feasance. He is not bound to make his premises safe or to ascertain whether they are dangerous; but if by a positive act of negligent misfeasance he actually creates a source of danger he is presumably responsible for any accident which is the natural and probable result of his negligence. Even a stranger would be so responsible, and the liability of the ovraier of the premises cannot be less than that of a stranger. Thus, in Parry v. 8mith^^ the defendant was a gasfitter who was employed by the occupier of a house to make certain alterations to the gas-fittings on the premises. The de- fendant's servant in executing the work caused, by his negli- gence, a leak of gas, which resulted in an explosion by which the plaintiff, a servant of the occupier, was injured, and it was lield that the defendant was liable. He wais guilty of more than a mere passive failure to fulfil his con- tract with the occupier, and was guilty of a negligent act of V. Dames (supra, s. 120), and turns upon the implied invitation of the landlord to use those portions of the premises which he retains in his own possession. See also Lucy v. Baivden, (1914) 2 K. B. 318. 9 Lane v. Cox, (1897) 1 Q. B. 415. 10 Cavalier v. Pope, (1906) A. C. 428; Cameron v. Young, (1908) A. O. 176; Malone v. Lashey, (1907) 2 K. B. 141. So also with the statutory implied contract of repair under the Housing, Town Planning, etc. Act, 1909. Ryall v. Kidwell # Son, (1914) 3 K. B. 135. 11 (1879), 4 C. P. D. 325. SECT. 126] LIABILITY FOE DANGEROUS CHATTELS. 416 misfeasance towards the plaintiff and all other persons whom he thereby exposed to danger. The Dominion Natural Gas Co. v. Collins^^ is a similar decision of the Privy Councdl on facts which are practically the same. It could have made no difference in either of these cases if the defendant by whose negligence the acci- dent was caused had been the owner of the premises instead of a stranger. 13 14 § 126. Liability for Dangerous Chattels. 1 . Liability for damage done by dangerous chattels is to Liability of •' 1.1 poesesaor of be considered under three heads: — a dangerous (a) The liability of the possessor of a chattel to persons °''*"6'- permitted or invited to make use of it; (&) The liability of him who delivers a chattel for damage suffered by the recipient of it; (c) The liability of him who delivers a chattel for damage suffered by other persons than the recipient. 2. As to the first of these cases, the same rules which de- termine the liability of the occupier of dangerous premises to persons entering upon them determine also the liability of the possessor of a dangerous chattel who, while still re- taining the possession of it, allows or invites other persons to make use of it: for example, a ship, railway train, or other oonveyanoe. A shipowner who allows a person to enter his ship owes towards him the same duty as he who allows a 12 (1909) A. O. 640. 13 Tlie judgment of the Privy Council in the above-mentioned case of T/ie Dominion Natural Gas C carrier, see Brass v. Mailland (1856), 6 E. & B. 470. SECT. 12(j] LlAblLlTV FOR DANGEKOUS CHATTELS. 417 Egerton,^ " is that the giver is not responsible for damage resulting from the insecurit}- of the thing, unk'ss he knew its evil chaVacter at the time and omitted to caution the donee." " KnoM-lodg'e of the defect," says Smith, L. J., in Coughlin V. GiJIisoi/,^'^ "is an essential to the right of the borrower to recover where he has been injured by reason of the article not being tit for tlie purpose for which it was lent." 5 . A contract of gratuitous service, however, such as one A/iur with of carriage, involves a duty of reasonable care, and must ^attdtous therefore be distinguished from a contract of gratuitous bail- service, ment or a gift, which does not. He who lends a carriage to a friend is not bound to ascertain its safe condition; but he who undertakes to take his friend for a drive in his carriage apparentlj' is so bound. ^i We have already noticed a similar distinction in the case of bare licensees. ^^ 6. The recipient of a chattel may expressly agree to run Agreement all risks, and in this case there is no duty even to disoloisa risks, concealed dangers actually Icnown. Thus, in Ward v. Hohhs^^ the defendant sold to the plaintiff at auction a herd of pigs which to the knowledge of the defendant were in- fected with typhoid fever. In the conditions of sale it was provided that the animals were to be sold and taken with all faults, and no disclosure of the danger was made. The pigs died, and infected other pigs belonging to the plaintiff, which also died; yet it was held by the House of Lords that he had no cause of action. i* 7 . It remains to consider the liability of him who delivers Liability to a dangerous chattel for damage suffered, not by the recipient q^ delivery"* himself, but by some third person. When A, for example, of dangerous sells or gives a defective gun to B, who sells or gives it to C, who is injured by the bursting of it, is A under any liability to C? To this question it is impossible, as the authorities at 9 (1867), L. B. 2 O. P. 375. " (1899) 1 Q. B. p. 147. 11 Lyffo V. Newbold (1854), 9 Ex. p. 305, per Parke, B.; Karris v. Perry, (1903) 2 K. B. 219; Mofatt v. Bateman (1869), 3 P. O. 115. 12 Supra, a. 122 (5). " (1878), 4 A. C. 13. lA On the other hand, a sale expressly excluding all warranties merely, leaves subsisting a duty to disclose known dangers. Clarke V. Army # Navy Co-operative Society, (1903) 1 K. B. 155. ^. 27 418 LIABILITY POK DANGEROUS PROPERTY. [CHAP. XII. Earl V. Lubbock. No liability for breach of contract with another person. present stand, to give any complete or confident answer. It is, however, established in the first place that he who by- delivering a dangerous chattel to one person causes harm to another, is not responsible bo the latter merely on the ground tliat he has been guilty of a negligent breach of a contract with the former. Thus, in Earl v. Lubbock^^ the defendant contracted with the owner of a van to put it in repair, and ho performed his contract so negligently that when the plaintiff, the servant of the owner, was driving the van one of the wheels came off and the plaintiff was thrown to the ground and injured. It was held by the Court of Appeal that he had no cause of action against the defendant . The defendant's contract with the plaintiff's master was, so far as the plaintiff was concerned, merely res inter alios acta, and the duty of care thereby imposed on the defendant was a duty towards the other party to the contract only, and not a duty towards all the world. The same principle had formerly been laid down by the Court of Exchequer in Winterhottom \. Wright, ^^ in which the facts were very similar. We liave already seen that the same rule applies so as to exempt the owner of dangerous premises from liability for harm suffered by persons entering upon them, even though the owner has taken upon himself by contract with the occupier the duty of keeping the premises in a condition of safety.^'' It is perhaps to be regretted that so narrow a view has been taken as to the liabilities of those who negligently put dan- gerous chattels in circulation to the hurt of other persons. It would seem no less consistent with legal principle than with natural justice that he who by a negligent breach of his con- tractual duty has put into the hands of another person a dangerous chattel, which that other believes and is entitled to believe to be safe, should be liable to any third person who in the natural and probable course of events is injured in conse- quenoe. The result of the rule establisihed by Earl v. Lubbock ia sufficiently remarkable — namely, the total denial of any 15 (1905) 1 K. B. 25S. " (1842), 10 M. & W. 109. " Cavalier v. Pop'e, (1906) A. C. 428. Supra, a. 125 (6). SECT. 126] LIALILITY FOR DANGEROUS CHATTELS. 41S> legial redress to liim who is injurwl b\- using a chattel in reliance on the due and careful performance of a contract bet^-een the person from whom ho received it and some third person. 1^8 8. A'evcrtheless, although there is no liability in such eases Cases in merely on the ground of the defendant's breach of contract liability with the immediate recipient of the dangerous thing, there ^^'^'^• are certain other circumstances which will create a good cause of action, and it remains to consider what they are. It is submitted that there are three cases in which such liability exists: — (a) The defendant is responsible if he fraudulently repre- Fi-aud. sents the chattel to be safe, and so misleads the reeijuent into causing damage to the plaintiff. Thus, in Langridge v Lery^'^ the defendant sold to the plaintiff's father, for the use of the plaintiff, a gun which he fraudulently stated to be of good construction, and the plaintiff, having been injured by the bursting of the weapon, was held entitled to sue the seller for damages, although there weis no contract between them. This is simply a special application of the general • principle, which wo shall consider in a subsequent chapter, that damage done to one person by fraudulently deceiving another is an actionable tort. •(&) If the defendant has actual knowledge of the Non- dangerous nature of the chattel delivered by him, and gives no ^f knowa warning of it to the recipient, he is liable for resulting injury dangers. to third persons. " Any one," says Cotton, L. J., in Hearen 18 It is necessary, however, to remember that the rule in JSarl v. Lubbock is applicable only where there is no contractual relation between the plaintiff and defendant, and that presumably there may exist as between the plaintiff and defendant an implied contract of gratuitous service, notwithstanding the existence of a concurrent contract in pari materia made for valuable consideration between the defendant and a third person. Thus, if a physician is engaged by the employer of a domestic servant to attend that servant in her illness, it may well be that there are in reality two contracts — an express contract for value between the employer and the physician, and an implied contract of gratuitous service between the servant and the physician. . If this is so, the physician would be liable to the servant for negligejice or want of skill, notwithstanding the rule in Earl v. Lubbook. See Long- meid v. Holliday (1851), 6 Ex. 761, p. 767; White v. Steadman, (1913~) 3 K. B. 340. " (1837), 2 M. & W. 519. 27(2) 420 LIABILITY FOK DANGEROUS PROPERTY, [CHAP. XII. V. Pender, "^^ "who . . . without due warning supplies to others for use an instrument or thing which to his knowledge, from its construction or otherwise, is in such a condition as to cause danger not necessarily incident to the use of such an instj'ument or thing, is liable for injury caused to others by reason of his negligent act." That is to say, he who delivers a dangerous chattel owes to third persons the same duty of care (but no more) that he owes to the recipient himself in the case of a gift or gratuitous bailment. ^i Thus, in Farranf V. Barnes^^ the defendant delivered to a carrier a carboy of nitric acid without informing him of the dangerous nature of its contents, and was held liable in damages to the carrier's servant who was injured by the bursting of the carboy while he was carrying it on his shoulders. ^^ 20 (1883), 11 Q. B. D. at p. 517. 21 So in Blacker v. Lake and Elliot (1912), 106 L. T. 533, at p. 540, it is said by Lush, J. : " If a person dealing with an article of a dangerous nature, which he knows to be dangerous, hands it over to somebody else who is ignorant of its true nature without warning him, he commits a breach of duty not only to the person who contracts with him, but to all the persons who to his knowledge may use it." See also Earl v. Lub- bock, (1905) 1 K. B. at p. 258, per Stirling, L. J. It is submitted that the decision to the contrary in Blakemore v. Bristol S; Exeter Rly. Co. (1858), 8 E. & B. 1035, is erroneous. In that case the defendant railway company, having full knowledge that a crane on its railway station was defective and dangerous, lent it gratuitously for use by a consignee for the purpose of unloading his goods, and while being used for this purpose by a servant of the consignee the crane broke and kUled the servant. It was held by the Court of Queen's Bench that his administratrix had no action under Lord Campbell's Act against the company. It was ad- mitted that the company would have been liable for injury to the con- signee to whom the crane was lent; but it was held that it was not liable to third per.-^ons, even though it was known that the crane would be sO' used by them and that it was dangerous. The approval of this case in Coughliii V. GilUson, (1899) 1 Q. B. 145, extends only to the proposition that the gratuitous lender of a chattel is liable to the recipient if, and only if, the lender knows of its dangerous nature. 2- (1862), 11 C. B. (N. S.) 553. 23 A remarkable extension of this principle seems to have been made in Bamfield v. Goole tf* Sheffield Transport Company, Limited^ (1910) 2 K. B. 94. In this case the defendants delivered a dangerous cargo of ferro-silicon for carriage on board a keel by the plaintiff's husband as a, common carrier. By reason of poisonous gases given off by the cargo the plaintiff's husband lost his life and the plaintiff herself, who assisted in the management of the keel, was made seriously ill. The defendants, however, did not know the dangerous character of ferro- silicon, and were not guilty of any negligence in not possessing such knowledge. Nevertheless it was held by the Court of Appeal that the plaintiff had a good cause of action not merely under the Fatal Accidents Act in respect of the death of her husband, but also in her own right in SECT. 126] LIABILITY FOR DANGEROUS CHATTELS. ■^''^1 (c) The defendant is probably liable if he has been guilty ^^^f^^ ^*^ of an act of negligent misfeasance in actually creating the misfeasance, source of danger, and not merely of the non-feasance of omitting to make the chattel safe or to ascertain whether it ■?\'as safe or not. We have already seen^* that this distinctio.n probably exists in the case of dangerous premises: a land- lord is not responsible to persons entering upon the premises merely because of his failure to make them safe (even though he has taken upon himself by contract with his tenant the duty of repair), but he is presumably responsible for dangers which he has created on the promises by an act of negligent misfeasance. So in the case of dangerous chattels, he who delivers them out of his hands is not bound before doing so to see that they are safe, nor does he remain liable for the mischief which they do after he has ceased to be the possessor of them; but if he actually creates the danger by his own positive negligence, he cannot free himself from liability for the natural and probable consequences of it by delivering to another person the instrument of mischief which be has so brought into existence. Thus, the manufacturer who negligently labels a poison with the name of a harmless drug, and sells it in that condition, is presumably liable for harm thereby suffered by any person who is deceived by that label, even though not the original purchaser. The defendant in such a case cannot, it is submitted, successfully plead that he was guilty of nothing more than a breach of contract with a person other than the plaintiff himself, and therefore that he is exempt from liability in accordance with the rule in Earl V. Luhbock.^^ On the same principle he who so negligently constructs a firearm that it bursts and causes personal injury respect of the illness suffered by her. The only ground stated for this allowance of the claim of the plaintiff in her own right is that given by Farwell, L. J., at page 117, namely, that the implied warranty of safety given by any person who delivers goods to a common carrier is given not merely to the carrier himself, but to his servants also. The wife's cause of action, that is to say, was based, not on tort, but on implied contract; sed qu. whether in such cases there is any contractual relatiom except between the person delivering the chattel and the carrier to whom it is delivered, or any justification for so supplementing the law of torts by the device of an implied contract. 21 See s. 125 (7). 2.5 (igog) 1 K. B. 253. 422 LIABILITY FOR DANGEROUS PROPERTY. [cHAP. XII. is presumably liable for that injury whether the person injured is the original purchaser or any other person. So it is submitted that a chemist who negligently uses the wrong ingredients in making up a physician's prescription for a child, and so causes injury to the child, is liable in an action brought by the child himself, and cannot plead that the medicine was sold to the child's father, and therefore that there is no cause of action exce23t one for breach of contract at the suit of the father. If this is so, the rule in Earl V. Lubbock must be construed as limited to cases in which the breach of contract complained of consists merely in a passive failure to discover and put an end to existing dangers, and not in the positive act of negligently creating dangers which did not already exist. The duty to discover and prevent danger exists only by contract, and only in favour of the other party to the contract; but the duty not to create danger exists apart from contract, and is owing to all persons con- cerned. The authorities on the point now under discussion are, however, unsatisfactory and inconsistent. The rule Avhich is here suggested is supported by the analogy of the law as to dangerous premises. The decision of the Privy Council in The Dominion Natural Gas Co. v. Collins^^ shows that he who by contract with the occupier of premises places upon those premises a dangerous fixture so negligently constructed that it causes injury to persons entering on the premises is liable for the injury so caused; and it is difficult to suppose, notwithstanding Earl v. LtibbocTc, that the same liability would not equally have existed if the source of mis- chief had been a dangerous chattel delivered to the occupier instead of a dangerous fixture attached to his premises. ^'^ In George v. Skivington^^ the defendant was a chemist who negligently manufactured a deleterious hair-wash, which he sold to the plaintiff's husband, knowing that it was to be used by the plaintiff; and the Court of Exchequer held that the plaintiff had a good cause of action in tort for personal 26 (1909) A. C. 640. -' See also Parrt/ v. Smith (1879), 4 C. P. D. 325. 2» (1869), L. E. 5 Ex. 1. SKCT. 126] LIABILITY FOE DANGEROUS CHATTELS. 42^ injuries suffered by her through the use of the hair-wash. So in the American case of Thoinax v. Witichester,^^ which is referred to with approval by the Privy Council in The Dominion ^Satural Gas Co. v. Collinj<,^° the defendant was a wholesale chemist, and sold to a retail chemist as extract of dandelion a drug which was in reality an extract of bella- donna, but which had been wrongly labelled by the negligence of the defendant's servants. The drug was then sold by the retail .chemist to a physician, who supplied it to one of his p;iticnts, who used it and suffered personal injury in consequence. It was held by the Court of Appeals of New \ ork that the defendant was liable in damages to the f)laintiff. On the other hand, in Blocker v. Lake'^^ a Divisional Court, consisting of Hamilton and Lush, J J., refused to follow George v. Skivington .^^ The defendants were the manufacturers of a brazing lamp, "which they sold to a retail dealer, who sold it to the plaintiff, who while using it was injured bj- its explosion. The accident was due to the negligence of the defendants in respect of the improper con- struction of the lamp. It was, nevertheless, held that the defendants were under no liability, since they owed no dut}- to the plaintiff, there being no contractual relation between the parties. Similarly, in Bates v. Batey £ Co.^^ it was held by Horridge, J., that the defendant, who manufactured, bottled, and sold ginger beer, was not liable to a third person who was injured by the bursting of one of the bottles, although the defendants were guilty of negligence in using a bottle which could have been ascertained by reasonable care . to be unsafe. It is difficult to accept these decisions as con- taining a satisfactory statement of the law on this important point. It can scarcely be the case that manufacturers are at liberty negligently to construct, sell, and put in circulation agents of mischief which are a trap to all who use them, and to decline all liability for personal injuries suffered as the 29 (1852), 6 N. y. 397. 3° (1909) A. C. 640. 31 (1912), 106 L. T. 533. ^^ (1869), L. R. 5 Ex. 1. 33 (1913) 3 K. B. 351. 424 LIABILITY FOR DANGEROUS PROPERTY. [CHAP. XII. Delivery of dangerous chattels to children. natural result of such negligence. The whole question calls for final consideration and determina.tion, and in the meaii- tiiuo the authority of George v. Skivington^^ and Thomas V. Winchesters^ may, it is submitted, be reasonably accepted in preference to that of the decisions last mentioned. ^^ 9. The foregoing rules are not apjolicable without quali- iication when dangerous chattels arc delivered to children under the age of discretion. A person in possession of a dangerous instrument, such ^as a loaded gun, is liable if he delivers it to or negligently allows it to be taken b}' a child who does mischief with it.^^ Knowledge of dangerous character muet exist. § 127. Dangerous Animals: Proof of Scienter. 1. Liability for harm done by animals has been subject from early times to a special rule which is not applicable to other forms of dangerous property. In other cases, as we ha\'e seen, a person is commonly bound to take care to ascertain whether his property is safe or not, and is responsible not only for the dangers which he knows, but also for those which he ought to have known. In the case of an animal, on the other hand, the owner is not under any obligation to find out whether it is dangerous or not. He is responsible only for dangers which he knows, not for those which he might ha^o 3i (1869), L. R. 5 Ex. 1. 35 (1852), 6 N. Y. 397. 36 The actual result in the cases of Blacker v. LaJce and Botes v. Bate'tr ^- Co. may probably be justified on the different ground that there was no evidence of negligence to go to the jury. See also Longmeid. V. Holliday (1851), 6 Ex. 761; EllMt v. Hall (1885), 15 Q. B. D. 315; Caledonian Railway Co. v. Mulholland, (1898) A. C 216; White v. Steadman, (1913) 3 K. B. 340; Heaven v. Pender (1883), 11 Q. B. D. 503. The last of these cases is to be explained on the ground that the dangerous chattel which did the mischief was being used on premises in the occupation of the defendant, and therefore constituted a danger^ existing on those premises, so as to create liability under the rule in Indermaur v. Dames (1867), L. R. 2 O. P. 311. See a. 120 (2), supra. As to the supposed distinction suggested in some of these cases between things " dangerous in themselves " and other things by which mischief is caused, see s. 125, note 13, supra. 37 Dixon V. Bell (1816), 5 M. & S. 198; Lynoh v. Nurdin (1841), 1 Q. B. 29; Williams v. Eady (1893), 10 T. L. R. 41; Sullivan v. Creed, (1904) 2 Ir. R. 317. Cf. the rule as to dangerous premises and children: Coohe V. Midland Gt. W. My. of Ireland, (1909) A. C. 229; s. Vlh, supra. SECT. 127] LIABILITY FOR ANIMALS. 426 ascertained by care. Unless he has knowledge to the contrary, he is entitled to assume that an animal will do no harm. 2. The knowledge which is thus an essential condition of Knowledge liabilitj- for the acts of animals is of two kinds. It is either or presumed. (1) knowledge proved as a fact in the individual ease, or (2) ki^owledge conclusively presumed by la-w from the fact that the act done by the animal is of a kind which animals of that species ha\e a natural tendency to commit. In other words, all harm done by animals is of two kinds — (1) harm which is natural to that species of animal, (2) harm ^hich is not natural to the species, but ^\hioh is nevertheless done by the particular animal in question . In the first case the owner of the ajiimal is not permitted to allege that he did not know of its tendency bo do tlie misohief ; he is conclusively pre- sumed to ha-^'c known the ordinary character of that species of animal; nor is it any defence to liim that he had good reason to believe tliat the individual animal had no tendency to do such harm, although natural to the species. ^ In the Scienter. second case, on the other hand, actual knowledge of the tendency of the individual animal to do the harm which it did must be proved by the plaintiff. Such proof is techni- cally called proof of the scienter, from the term scienter used in the old writ and declaration, in which the defendant was charged with knoicingly keeping a dangerous animal." Thus it is a natural tendency of cattle to stray and tres- pasis, and eat and tread down crops; and it is the natural tendency of tigers and other wild beasts to attack mankind and other animals. In such a case, therefore, no proof of scienter is necessary. ^ Knowledge is presumed by law, and 1 FUburn v. People's Palace Co. (1890), 25 Q. B. D. 258. Cox v. Burbidcje (1863), 13 O. B. (N. S.) at p. 437, per Brie, C. J.: |'The. owner of a horse must be taken to know that the animal will stray if not properly secured." Besozzi v. Harris (1858), 1 F. & P. p. 92, per Orowder, J.: "The statement in the declaration that the defendant knew the bear to be of a fierce nature must be taken to be proved, as every one must know that such animals as lions and bears are of a savage nature." 2 Quod defendens quendam oanem ad mordendum oves consuctum' scienter retinuit: 1 EoUe's Abridg. 4. 3 May V. Burden (1846), 9 Q. B. 101; Filhiirii v. People's Palace Co. (1890), 25 Q. B. D. 258. 426 LIABILITY FOR DANGEROUS PROPERTY. [cHAP. XII. Character of animals a questiou of law. Dog's thi.s presumption is oonolueive, so as even to exclude evidence that the individual animal was reasonably believed to have no tendencj' to act after the manner of its kind. On the other hand, it is not the natural tendency of dogs to bite human beings; therefore it is necessary for the plaintiff in such a case to prove that the defendant actually knew that the dog was dangerous and had departed from the peaceable habit of its species. And it is not sufRcient to prove that he had the means of knowing this, and would have known it had he exercised reasonable oare.* In the fiiTst class of cases knowledge need not be proved, and care is no defence; in the second, knowledge must be proved, and negligence is no ground of liability. 3. Whether any particular kind of mischief is natural or not to a paxticular species of animal is, it seems, a question of law. Thus, it is a rule of law and not a mere proposition of fact that it is not natural for a dog to bite mankind. " The law," says Lord Holt,^ " takes notice that a dog is not of a fierce nature, but r-ather the contraiy." So it has been decided that it is natural for strange horses to kick one another when left at large in a field, ^ or for a stallion to bite and kick a mare,^ but that it is not natural for a horse to kick a human being.* So it is in the nature of an elephant to attack human beings, ^ but it is not natural for a bull to do so.^° 4. At common law it was deemed not to be in the nature of a dog to attack sheep or cattle, and in such cases proof of scienter was accordingly required. On this point, however, the law has been altered by the Dogs Act, 1906, by which itis provided that " the owner of a dog shall be liable in damages for injury done to any cattle by that dog, and it shall not be necessary for the person seeking such damages to show a * Mason v. Keeling (1699), 12 Mod. 332. 5 ihi^. p. 335. « Lee V. RUey (1865), 18 O. B. (N. S.) 722. 7 Ellis V. Loftus Iron Co. (1874), L. R. 10 C. P. 10. 8 Cox V. Burbidge (1863), 13 C. B. (N. S.) 430; Bradley v. Wal- laces, Ltd,., (1913) 3 K. B. 629; Jones v. Lee (1912), 106 L. T. 123. 3 Filburn v. Peo-ple's Palace Co. (1890), 25 Q. B. D. 258. 10 Hudson V. Roberts (1851), 6 Ex. 697. 15KCT. 127] LIABILITY FOR AN1MAL8. 427 previous mischievous propensity in the dog, or the owner's knowledge of such previous propensity, or to show that the injury was attributable to neglect on the part of theowner."ii Tlie word cattle in this statute includes hoi-ses, mules, asses, sheep, goats, and swine. ^^ Liability for all other kinds of mischief done by dogs stands as at common law. 5. The exemption of the owner of an animal from all duty ^"^e different J, i -i 1 1 ■ 1 • 1 1 \. ™ oases of 01 care as to its dangerous character exists only m the law oi contract. torts, and not in the law of contracts. He who by contract undertakes any duty of care with respect to the person or pro- perty- of anotlier must show due care to prevent damage by mischievous animals, and no pixx)f of scienter is required. Thus, in Smith v. Gook'^'^ the bailee of a horse was held liable for damage done to it by a bull without any proof of scienterM 6. Even though the act of the animal may be natural to Remoteness the species, or known to be natural to the individual, the ° ^™a?e. damage resulting from the act may be too remote to be the ground of liability. Thus, in Saunders y. Teape^^ the de- fendant's dog jumped over a low wall into a garden and fell down a well upon the plaintiff, who was at the bottom of the well engaged in digging it. It was held that the de- fendant was not liable; the damage Mas clearly too remote. 7. In proving the scienter it is not necessary to pro\-e that Evidence of the animal has on any previous occasion actually done the 11 Dogs Act, 1906, s. 1, sub-s. 1. A similar provision \va^ contained in an earUer Act, 28 & 29 Vict. c. 60. 12 Dogs Act, 1906, 3. 7. 13 (1875), 1 Q. B. D. 79. 1* In IFhife v. Steadman, (1913) 3 K. B. 340, the defendant, a livery- stable keeper, by contract with the plaintiff's husband, supplied a car- riage, horse and driver for his use. The plaintiff, while being driven in the carriage by the defendant's servant, was injured by an accident due to the dangerous character of the horse. The defendant was unaware of this danger but might have ascertained it by the use of ordinary care. It was held by Lush, J., that the defendant was liable. This decision must, it is submitted, be supported on the ground that in such circumstances there exists an implied contractual relation between the supplier of tiei carriage and the person being driven in it, even though the hirer of the carriage was a third person. 15 (1884), 51 L. T. (N". S.) 263. So also in Jiadwell v. Sighton, (1907) 2 K. B. 345, where a fowl, trespassing on the highway, flew among the spokes of a passing bicycle and caused an accident to the rider. 428 LIABILITY FOR DANGEROUS PROPERTY. [cHAP. XII. Knowledge of servants. Rule as to M-ienttr applies to disease of animals. kind of harm, now complained of; it is suiRcient tliat it has sufficiently manifested a tendency to do such harm, and that the defendant was aware of the fact.^'' 8. In jDroving the scienter the knowledge of any serx'ant who has the custody or care of the animal, or whose duty it is to attend to the matter, is deemed equivalent to the laiow- ledgc of his master.!^ 9. The rule as to the necessity of proving the scienter has been held to apply not only to wilful mischief done by animals, but also to the sjjread of infection by animals suffering from disease.!^ § 128. Absolute Responsibility for Animals. The Rule in May v. Bitrdett. Keeper of 1 . Provided that there exists the necessary knowledge of responsible danger, in accordance with the rule which we ha\e considered without proof in the preceding section, he who keeps an animal is absolutely " ° ' responsible for its acts. He is bound at his peril to prevent it from going at large or in any other manner having an opportunity of exercising its miscliievous instincts. If any harm is done by it, he is liable (unless there exists some specific ground of exemption) without any allegation or proof of negligence in the custody or care of the animal. This rule of absolute liability was established in the year 1846 by the Court of Queen's Bench in May v. Burdett,^ a decision which was followed in tlie same year by the Court of Exchequer in Jackson v. Smithson,- and two years later by tlio Court of Comiruon Pleas in Card v. Case.^ In the first of these cases the plaintiff had been bitten by a monkey kept by the defendant upon his premises, and in answer to the May >'. Burdett. 16 IForth V. GilUng (1866), L. R. 2 C. P. 1; Barnes ^. Lii-olUe (1907), 96 L. T. 680. 1' Baldioin v. Casella (1872), L. R. 7 Ex. 325; Applebee v. Percy (1874), L. R. 9 O. P. 647; StUes v. Cardiff Steam Xavigation Co. (1864), 33 L. J. Q. B. 311. 18 Cooke V. Warelng (1863), 2 H. & C. 332. 1 (1846), 9 Q. B. 101. 2 (1846), 1.5 M. & W. 563. 3 (1848), 5 C. B. 622. SECT. V2S] ABSOLUTE RESPONSIBILITY FOR ANIMALS. 429 coutention of tJie defendant tliat he was not liable save for want of due care in taking precautions against mischief, it is !e."-3 If, on the other hand, the animal is not of a kind which is found in a state of natural liberty, he who has once kept the animal presumably remains liable at all times for its acts of mischief. If a tiger escapes from a menagerie, its former p'Ossessor will answer for all the harm that it does until it is recaptured. 29 Mitchil V. Alestree (1676), 1 Vent. 293. 438 CHAPTER XIII. INJURIES TO DOMESTIC RELATIONS. § 129. Parent and Child. Rights of a parent as such. Rights of a parent as a master 1. No parent Jias, as such, any right in respect of his child of such sort that an action for dama,ges will lie against any other person for a violation of that right. ^ The only right which a parent has as such is a right to the possession and custody of his child during minority. The remedy for the infringement of this right is not an action for damages against the person who deprives him of his child, ^ but the recovery of possession either by means of a writ of habeas corpus or by an application to the Chancery Division to exercise its power in respect of the guardianship of infants. ^ 2. All rights of action vested in a parent in respect of his child are vested in him not in his capacity as a parent, but in his capacity as the master of his child, and are therefore dependent upon the existence in the particular case of the relation of master and servant. If tliis relation does not exist, either because the child is too young to give any services, or because he is in the service of some other person, or for any other reason, the father has no remedy for any wrong done to him in respect of his child. Thus, in Hall v. 1 Hall V. Hollandei- (1825,), 4 B. & 0. 660. 2 Barham v. Dennis, Cro. Eliz. 770. 3 It is true, indeed, that an action of trespass would formerly lie at the suit of the father for the taking' away of his. son and heir, but it was decided in Barham v. Dennis, Oro. Eliz. 770, that this remedy did not extend to the taking' away' of his other children, and that the g;round of the action even in the case of the son and heir was the valuable interest which the father had in the marriage of the child under the old system of tenure in chivalry. See Blackstone III. 140. In Hall v. Hollander (182a), 4 B. & C. p. 660, Holroyd, J., says: "It is clear that in cases of taking' away a son or daughter, except for taking a son and heir, no action lies unles=i a lo^s of service is sustained." SECT. 129] PARENT AND CHILD. 439 KoUand^ej-^ a father sued for the neg-ligence of the defendant in causing physical harm to his child aged two years and a half, and was held to have no cause of action because the child was too young to afford aaiy services to him, and therefoi-c the relation of master and servant could not and did not exist betA\'©en them. Similarly, in the absence of this relation a father has no right of action for the seduction of his daughter, and this is so even although, by reason of the resulting pregnancy and child-birth, he has necessarily in- CLU-red pecuniary loss. " The foundation of the action by a father to recover damages against the wrongdoer for the seduction of his daughter has been uniformly placed from the earliest time hitherto not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service he is supposed to have a legal right or interest."^ 3. We ha\e already seen that the liahility of a father for Liability of the wrongful acts of his child depends on the same principle, on same*""^ He is responsible for Iiis children not as being their father, principle, but as being their employer.^ § 130. Master and Servant: Seduction. 1 . It is a tort actionable at the suit of a master to seduce Seduction of his female servant and thereby to deprive him of her services, servant a . . . . wrong +0 the The right of a master to the services of his servant is one which master, the law protects not merely as against the servant himself, but also as against third persone, just as a similar protection is extended to the right of a husbarud to the consortium et servitmm of his wife. And just as tliis latter right is vio- lated by adultery, so the master's right is violated by the seduction of a female servant. * (1825), 4 B. & C. 660. 5 Grinnell v. Wells (1844,), 7 M. & G. p. 1041; Peters v. Jones, (1914) 2 K. B. 781. s Supra, s. 19 (5). The right of a parent to recover damages for the death of his child has been already considered in the Chapter on Injuria to the Per.-jon. Siiprn, s. UC. ■440 INJURIES TO DOMESTIC RELATIONS. [c'HAP. XIII. Loss of ser-yice necessary. Seduetion prior to service. Measure of damages. 2. Seduction is not, however, actionable per se, but only when it results in an actual loss of service. To use the tech- nical terms of the older pleading, the cause of action must be laid with a per quod servitium amisit. The usual cause of this loss of service is pregnancy and child-birth; but this is not essential, for any loss of service is enough if it results from the seduction in any manner not too remote — e.g., illness due to mental agitation after seduction and desertion. i If tJhe child born is not the child of the defendant, ^ or if the servant seduced leaves the plaintiff's service for some other reason before her pregnancy has caused any loss of service,^ there is no cause of action. 3. Even loss of service is not a cause of action if the seduc- tion happened before the relation of master and servant came into existence; for the act of the defendant was not in that case the violation of any existing right \osted in the plaintiff.* 4. The damages in this action are not necessarily limited to the value of the services lost. They include all expenses necessarily or properly incurred by the master in respect of his servant's illness and the birth of her child. And when the relation between the master and servant is such that her seduction is an injury to his honour and feelings, and not merely to his purse, vindictive damages are rightly given: as, for example, when the master is also the father or mother of the person seduced, or some one standing in loco parentis, such as an adoptive parent or a relative with whom she lives. ^ In all such oases, indeed, the action, tlrough in form and in law based on the loss of service, is in substance and in fact based on the injury to the honour and feelings of the parent or other relative of the person seduced. The loss of service is simply the necessary condition which must exist before any claim for such solatium can be entertained. It is greatly 1 Manvell v. Thomson (1826), 2 0. & P. 303. 2 Eager v. Grimwood (1847), 1 Ex. 61. 3 Hedges v. Tagg (1872), L. E. 7 Ex. 283. * Davies v. Williams (1847), 10 Q. B. 725; Hamilton 2 I. R. 407; (1905.) 2 I. E. 552. 5 Irwin V. Dearman (1809), 11 East, 23. Long, (1903) SECT. 130] MASTER AND SERVANT. 441 to be desired, tlierecfore, t.hat the law should be put on a more rational basis, and that the real cause of action should recei^'e legal recognition instead of being made available by means of a device which is little better than a legal fiction. "^ o. It is not necessary- that the defendant should have had any knowledge that the person seduced was the servant of the plaintiff. 6 . For the purpose of an action for seduction service is of Kinds of three kinds, any one of which is sufficient — viz., (a) contrac- tual service, (6) de facto service, and (c) constructive service. 7. Contractual service is that which is rendered under a Contractual binding contract for wages or other valuable consideration ^^'^''^■ and either for a fixed term or at will. This is the ordinaiy case of master and servant, and may, though it seldom does, exist also between a parent or other person in loco parentis and a daughter. 8. De facto service is service rendered in fact, but not De facto under any binding contract of service. This is the ordinary relation which exists betweeli a father or other person in loco par&ntis and a daughter who resides with him. If service is in fact habitually rendered by a daughter to her parent, there exists between them a sufficient de facto relation of master and servant to found an action for loss of service by seduc- tion; and it makes no difference that the service so rendered may be quite trivial in value or nature . The slightest habi- tual participation in domestic affairs is sufficient for this purpose. " Even making tea has been said to be an act of service."^ " The smallest degree of service will do."^ " In actions of this sort the slightest evidence is sufficient. "^^^ •• Most actions for seduction are brought by parents or other persons in loco parentis. See Irwin v. Dearman (1809), 11 East, 23 (adoptive father^; Howard v. Crowther (1841), 8 M. & W. 601 (brother); Manvell V. Thomson (1826), 2 O. & P. 303 (uncle); Edmundson v. Maohell (1787), 2 T. E. 4 (aunt). The action, however, lies equally at the suit of an ordinary master. Fores v. Wilson (1791), 1 Peake, 77; Mackenzie v. Hardinge (1907), 23 T. L. R. 15. 1 Carr v. Clarke (1818), 2 CHt. 260. 8 Manvell v. Thomson (1826), 2 O. & P. p. 304. 9 Bennett v. AUcott (1787), 2 T. R. 168. 1" The relation of de facto service is not excluded or terminated by temporary absence, if the animus revertendi still exists. Griffiths v. 442 INJURIES TO DOMESTIC KELATIONS. [CHAP. XIII. Constructive 9, Constructive service is that which exists in the eye of the law when there is a legal right to service, though none in fact. Thus, a father is deemed for this purpose to have a legal right to the services of his children who are minors, unmarried (if daughters), and not engaged by contract to serve some other person exclusively. This right of service amounts to constructive service, and is therefore sufficient to ground an action for seduction or for any other violation of the rights of a master, provided that the two following conditions arc fulfilled: — (fl) The child must be old enough to be capable of per- forming acts of service; 11 (b) The child must be cither resident in the father's house or must be merely temporarily absent from it ■with the animuff rcverleiidi . If these two conditions are fulfilled, it is not necessary in an action for seduction or other violation of a master's rights to prove any actual service, wliether contractual or de facto, for the law will conclusively presume that service exists. Thus, in Terry v. Kutcliimon^'^ the plaintiff's daughter under the age of twenty-one, being in the domestic service of another person, left that service with the intention of return- ing to her father's house, and in the course of her homeward journey was seduced by the defendant; and it was held that her father had a good cause of action. Cockburn, C. J., says: 13 " 1 think there was enough to amount to a construc- tive service. . What is the difference, if the father had the rigtit to ttie service, that he has not actually exercised that right? ' So also in Maunder v. ^'enn^^ it is .said: "Proof of any acts of service was unnecessary; it was suffi- Teetgen (1854), 15 C. B. 344. When a daughter lives with her father and mother and renders domestic service in the ordinary way, this de facto service is with the father exclusively, and not with the mother, and tlie mother has no cause of action. Peters v. Jones, (1914) 2 K. B. 781; Hamilton v. Long, (1903) 2 I. E. 407; (1905) 2 I. E. 552. 11 Hall V. Hollander (1825), 4 B. & C. 660. 12 (1868), L. E. 3 Q. B. 599. 13 Ibid. p. 601. So Mellor, J., at p. 603: "It is clear that when a father has a right to the service of a child, the action can be main- tained without any proof of actual service." See also Peters v. Jones, (3914) 1 Tv. B. 781, p. 786. " (1829), Mood. & M. p. 323. SECT. 130] MASTER AND SERVANT. 443 cient that she was living- with her father, forming part of his family, and liable to his control and command . The right to the service is sufficient. "^^ If, however, the daughter is of full ago, there is no con- structive service, and the father must prove either de facto or contractual service. And even in the case of minors construc- tive service is excluded by permanent labsence from thi father's house with no animus rereyte^tdi^^ 10. A servant may at tho same time be in the sei-vice of Concurrent two different masters, and iu this case each of them will have -(rith two a right of action for her seduction. In Thompson v. Ross''-'' masters. Bramwell, B., says: " I do not think it impossible that there may be two masters of one servant; a person may have a form of contract that in the daytime he or she should render such- and-such services to one person, and another contract that after the day is over other services shall be rendered to some other person." Accordingly, in Ogden v. Lancashire,'-^ a father was held entitled to sue for the seduction of his daughter who lived with him and rendered him de facto service, notwithstanding the fact that she was engaged during the working hours of each day in the contractual service of a millowner. A similar decision was given by tho Exchequer Chamber in Rist v. Faux'-^ in the case of a daughter wlio worked all day as an agricultural labourer, but resided with her father and was in his de facto service. It is to be pre- sumed that in the case of children under ago constructive service-is on the same principle suificient, although concurrent with contractual service to a third person during working hours. When, on the other hand, the daughter habitually resides not with her father, but with her employer, to whom site owes exclusive contractual service, no de facto or constructive service to her father is sufficient to give him any cause of action. Thus, in Whitbourne v. WiUiams,^^ a father was 15 See also Jones v. Brown, 1 Peake, 306, in which constructive service wag held sufficient to found an action by a father for an assault upon Ha son under age. i* Dean v. Peel (1804), 5 Bast, 45. " (1860), 29 L. J. Ex. p. 3. is (1866), 15 W. R. 158. 19 (1863), 4 B. & S. 409. 2" (190n 2 K. B. 722. 444 INJURIES TO DOMESTIC KELATIONS. [CHAP. XIII. held to have no cause of action although his daughter, wlio was a domestic servant, returned to her home on her weekly haK -holidays and there and then performed acts of household service. So in Hedges v. Tagg^^ a daughter engaged as a governess came back to her mother's house for a holiday of three days, and did acts of domestic service; and although she was seduced while thus at home he;r mother "was held to have no cause of action. The concurrent contractual service with her employer was inconsistent with and excluded the de j'octo service with her mother . In these oases it makes no difference whether the parent's claim is based on de facto or merely on constructive service. 22 § 131. Master and Servant: Other Injuries. Other injuries I jj- jg ^ |-qj.(; actionable at the suit of a master to take to a master away, imprison, or cause physical harm to his servant, if (a) the act is a tort as against the servant, and (b) the master is thereby deprived of his servant's services.^ 2. For the purpose of this rule the relation of master and servant is governed by the same principles as those already exf)lained in the case of seduction. The service may be either contractual, de facto, or constructive; and the plaintiff may bo either an employer in the ordinary sense, or a parent or other person in loco parentis suing in respect of services (however trivial) which he receives or is entitled to receive from a child. Thus, in Gilbert v. SchivencJc," a mother, who was a testa- mentary guardian of her two children, sued a joint testa- mentary guardian for taking them by force from her custody per quod servitium amisit. So in Jones v. Broivn^ a father 21 (1872), L. E. 7 Ex. 283. " See Oarr v. Clark (1818), 2 Chit. 260; Blaymire v. Haley (1840), 6 M. & W. 55; Thompson v. Ross (1860), 5 H. & N. 16. 1 Martinez v. Gerber (1841), 3 M. & G. 88; Berringer v. Gt. E. My. Co. (1879), 4 C. P. D. 163; GUhert v. Schwenck (1845), 14 M. & W. 488; Hall V. Hollander (1825), 4 B. & O. 660; Osborn v. GilUtt (1873), L. R. 8 Ex. 88; Jones v. Brown (1794), 1 Peake, 306. 2 (1845), 14 M. & W. 488. ^ (1794), 1 Peake, 306. SECT. 131] MASTER AND SERVANT. 445 sued for the loss of the constructive services of his son, who had been assaulted by the defendant. So in Berringer \ Great Eastern Railway Company^ a father recovered damages from a railway conjpany for physical harm done to his son, who was in his de facto service.^ 3. In the absence of lawful justification it is a tort action- Inducing' able at the suit of a master to induce his servant to leave hie jg^^g j^^g employment wrongfully, or to induce him by illegal means, employment, such as fraud or intimidation, to leave his employment cveni^',,V,';,,, --' rightfully . ^ ! -/ — ^ ^ 4 . For the purpose of this rule the relation of master and servant is governed by the rules already explained in the case of seduction. So that it is actionable under this rule to induce a child under age but capable of service toi leave his father against the latter's will, unless there is some la^\ful justification.'' ^ ^ 5. When no illegal means of inducement or coercion arc used by the defendant, it is not a tort to induce a servant to leave his master's service, unlees the act of the servant in doing so is wrongful. Therefore, to persuade a servant to i (1879), 4 O. p. D. 163. 5 The fact that the wrong done to the servant is not merely a tort, but also a breach of a contract made with him, does not exclude or in any way affect the master's right of action for loss of service. The decision to the contrary in Alton v. Midland Rly. Co. (1S65), 19 0. B. (N. S.) 213, must now be disregarded, either as bad law, or as turning merely upon a point of pleading. See Meux v. 6-t. E. Rly. Co., (1895) 2 Q. B. 387, at pp. 391, 394. 6 Zumley v. Gye (1853), 2 E. & B. 216; Bowen v. Hall (1881), 6 Q. B. D. 333. ^ Evans v. Walton (1867), L. B. 2 C. P. 615. 8 In the case of Speight v. OUviera (1819), 2 Stark. 493, it was held that to induce a daughter of full age to leave her father's house by means of a fraudulent pretence of engaging her as a domestic servant, the real intention being to seduce her, was a tort actionable at the suit of her father. This must be taken as an application of the present rule, and not of that as to seduction. 9 In more than one case the act of engaging a servant who is known to have left his master wrongfully, or of continuing to employ such a servant after knowledge of the facts, has been held actionable at the suit of the former master. BlaTce v. Lanyon (1795), 6 T. E. 221. It is submitted, however, that if these decisions are stiU law, their authority must be confined to cases iu which it is proved that the defendant did in fact induce or procure the servant to remain away from his master. 446 INJURIES TO DOMESTIC RELATIONS. [CUAI'. XIII. leave a merely de facto servide or to terminate a contractual service by due notice is not actionable. i'' ^^ § 132. Husband and Wife. Injuries to a hnsband by depriving him of his wife's society or services. Concurrent remedies. Death of wife. 1. It is a. tort actionable at tlic suit of a husband to take away, imprison, or do physical harm to hi.s wife, if (a) the act is wrongful as against the wife, and (6) the husband is thereby depri^•ed of her society or services. A husband has a right as against third persons to the consortmm et servi- tiiim of his wife, just as a master has a similar right to the servitium of lois servant. Any tortious act, therefore, com- mitted against the wife is actionable at the suit of her husband, if he can prove that he Avas thereby deprived for any period of her society or ser^dces {per quod consortium et sermtium amisit)A 2. The two causes of aOtion thus ^'eeted in a wife and her husband respectively are concurrent and cumulative. Thus, if a married woman suffers physical harm in a railway acci- dent, the company is liable in two actions — one at the suit of the wife alone or jointly with her husband for the damage so sustained by bei-self , and another at the suit of the husband alone for the injury done to him. These tAvo actions may be brought separately or together. ^ 3. If the wife is not merely injured but kiEed, the hus- band's claim for loss of consortium et servitium is limited to the interval between her injury and her death ;3 but he may have a claim to compensation for her death under the Fatal Accidents Act, or even at common law if the cause of 1° De Francesco v. Barnum (1890), 45 Ch. D. 430. This limitation must be taken to be implied in the judgments in Evans v. Walton (1867), L. E. 2 C. P. 615, although it is not expressed. ^1 For a further consideration of the law as to inducing servants to leave their masters' employment, see Chapter XVI. on Intimidation and Chapter XVIII. on Residuary Forms of Injury. 1 Blackstone III. 139; Baker v. Bolton (1808), 1 Camp. 493; Broak- bank v. Whitehaven Sly. Co. (1882), 7 H. & N. 834. 2 Brochhank v. Whitehaven My. Co. (1862), 7 H. & N. 834. 3 Baker v. Bolton (1808), 1 Camp. 493. SECT. 132] HUSBAND AND WIFE. 447 her ckath Avas a breaeh of contract as between himself and the defendant.^ -Jr. When there, is no loss of consortium et serrltlum the husband lia^s no action : as when he was at the time of the act complained of permanently separated from his wife.^ o. In the absence of lawful justifioation, it is a tort action- Inducing a able at the suit of a husband to induce his wife to leave him heAiwb^dt or to remain away from him against his wilL^ A husband ha^s no longer, indeed, any right or power, whether b}' way of judicial proceedings or otherwise, of compelling his wife to li\e with him.^ Nevertheless it is to be assumed that he still retains his right of action against any third person who induces her to refuse to dosio without sufficient cause. It is, however, a sufficient justification for such inducement that owing to the husband's conduct the wife is justified, or is (it would seem) honestly believed by the defendant to be justi- fied, in leaving her husband.^ Whether there is any other lawful justification for such an interference betAveen husband and wife does not appear from the authorities. 6. To commit adultery with a married woman is a tort Adultery, against her husband, but he can recover damages for it only by petition in the Probate, Divorce and Admiralty Division of the High Court of Justice, and not in an ordinary action. Adultery was formerly a tort actionable by writ of trespass, the action being known as that of criminal conversation. ^ This action has been abolished by the Matrimonial Causes Act, 1857, which has substituted for it a petition in the Divorce Court, either with or without a petition for divorce. i" A husband's claim for damages in such a petition is governed by the same principles which formerly regulated the action of criminal conversation, subject to such modifications as are * Jackson v. Watson # Sons, (1909) 2 K. B. 193. Vide supra, s. 116. 5 See Weedon v. Timbrell (1793), 5 T. R. 357; I::ard v. Izard <1889), 14 P. D. 45. 6 Winsmore v. Greenbank (1745), Willea, 577; Philp t. Squire (1791), 1 Peake, 114; Berthon v. Cartwright (1796), 2 Esp. 480; Smith v. Kaye (1904), 20 T. L. R. 261. ' Meg. v. Jackson, (1891) 1 Q. B. 671. 8 Berthon v. Cartivright (1796), 2 Esp. 480; Philp v. Squire (1791), 1 Peake, 114. 9 Weedon v. Timbrell (1793), 5 T. B. 357. 10 20 & 21 Vict. c. 86, ss. 33, 69. 448 INJUEIES TO DOMESTIC RELATIONS. [cHAP. XIII. expressly or impliedly effected by the Act in question — e.g., astotheeffectofcondonation.il '''"■' ii^l '■° 7. It is uncertain whether a married woman has any right \ct : » . in respect of her husband of such sort that an action for damages will lie against any other person for the violation of it. There is no precedent for any action by a wife for the loss of the society or support of her husband by reason of any wrongful act committed against the husband — for example, false imprisonment or wrongful physical harm; and it may be assumed that no such action would lie, the remedy avail- able by the husband himself being sufficient to meet the case. 12 Nor will any action lie at tJj.© suit of a wife for adultery comtnitted with her husband. i^ But there would seem to be no reason why the act of wrongfully inducing a husband to desert or to cease to maintain his wife should not be action- able at the suit of the wife. This would be nothing more than an application of the general principle that he who pro- cures the commission of a wrongful act is liable for its con- sequences. Moreover, there is some autliority for saying that where a tort committed against a wife produces, as its intended or natural result, a loss of the consortium of her husband, this is to be taken into account in estimating damages: for example, a slander published against a wife with the result that her husband refuses to live with her.i* For the death of her husband a wife may claim compensation under the Fatal Accidents Act.i^ 11 Cox V. Cox, (1906) P. 267. 12 Blackstone III. 143. 13 Lynch v. Knight (1861), 9 H. L. 0. p. 589. 1* Lynch v. Knight (1861), 9 H. L. O. p. 589, per Lord Campbell; p. 595, per Lord Cranworth. Contra, p. 597, per Lord Wensleydale. 15 Supra, s. 116. 449 CHAPTER XIV. DEFAMATION. § 133. Defamation Defined. Libel and Slander. 1. The wrong of defamation consists in the publication of Defamation a false and defamatory statement respecting another person "without lawful justification. 2. A defamatory statement is not necessarily made in words, either written or spoken. A man may defame another by his acts, no less than by his words. To exhibit an insult- ing picture holding up the plaintiff to ridicule or contempt is an actionable libel. ^ So also is the act of placing an effigy of the plaintiff among those of murderers and other ill-famed persons in an exhibition. ^ 3 . The wrong of defamation is of two kinds — namely, libel Libel and and slander. In libel the defamatory statement is made in ^ ^"' ^^' some permanent and visible form, such as writing, printing, pictures, or effigies. In slander it is made in spoken words or in some other transitory form, whether visible or audible, such as gestures, hissing, or other inarticulate but significant sounds.^ Libel and slander are for the most part governed by the same principles; and except where the contrary is stated, the observations in this chapter are to be taken as applicable to both these forms of defamation equally. There are, however, two important differences: — • (a) Libel is not merely an actionable tort, but also a criminal offence; whereas slander is a civil injury only. 1 Du Bost r. Beresford (1810), 2 Camp. 511. 2 Monson v. Tussated's, Ltd., (1894) 1 Q. B. 671. 3 Ihid. p. 692, per Lopes, L. J. s. 29 450 DEFAMATION. [cHAP. XIV. (&) Libel is in all cases actionable per se ; but slander is, save in special cases, actionable only on proof of actual damage. We shall consider later what these cases are, and what forms of actual damage ara a sufficient cause of action. § 134. The Defamatory Nature of a Statement. Defamatory 1 _ J^ defamatory statement is one which has a tendency to statements. . . ■ i. i i • c i • i injure the reputation ot the person to whom it refers; which tends, that is to say, to diminish the good opinion that other persons have of him, and to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or dis- esteem.i Distinguished 2. A defamatory statement must be distinguished from injurious °i^<' which is merely injurious. Both are falsehoods told bj^ statements. one man to the prejudice of another, and both are on certain conditions actionable; but thoy are to a largo extent governed by different rules. An injurious statement is a falsehood told about another which in no way affects his reputation, but nevertheless in some other manner causes loss to him. Thus, it is not defamatory to state in a newspaper that a certain tradesman has ceased to carry on business; yet if this statement is wilfully false, and causes him actual damage, an action will lie for it.- But to state falsely that he carries on business incompetently or dishonestly is de- famatory, and an action will lie oven though the statement is not wilfully false, and even though actual damage has not been caused by it. Similarly, to say falsely of a shopkeeper that his goods are of a quality inferior to those of another trader is not the wrong of defamation, but that of injurious falsehood; but to say of him that he fraudulently sells in- ferior goods as of superior quality is an attack, not merety upon his business, but upon his reputation, and is therefore 1 Parmiter v. Coupland (1840), 6 M. & W. p. 108; Capital ^ Counties Sank V. Henty (1882), 7 A. O. p. 771; Smfh Eetton Coal Co. v. N. B. Neivs Association, (1894) 1 Q. B. p. 138. 2 RatcUffe v. Evans, (1892) 2 Q. B. 524. SKCT. i;}4] DEFAMATORY NATURE OF STATEMENT. 'iSl defamatory."' The law of injurious falsehood, as distin- guished from that of defamation, Avill be considered by us in a later chapter.* 3. ]\lere insult, it would seem, does not amount to defama- Insult, tion. Defamation is a false statement or suggestion of fact to the i^rejudice of a man's reputation; insult consists in words or conduct offensive to a man's dignity, but involving no false statement or suggestion. Insult in itself seems to be no cause of action by the law of England, though par- ticular forms of insult are actionable because accompanied by other facts which confer a right of action. Assault, false imprisonment, and certain kinds of wilful and wanton tres- passes to property amount to insults, as being attacks upon the dignity of the plaintiff as well as upon his person or pro- jDerty; and vindictive damages may accordingly be obtained for them. Insulting throats not amounting to assault are apparently not actionable at all. 4. The test of the defamatory nature of a statement is its Kinds of tendency to excite against the plaintiff the adverse opinLons stltementT or feelings of other persons. The typical form of defama- tion is an attack upon the moral character of the plaintiff, attributing to him any form of disgraceful conduct, such as crime, dishonesty, untruthfulness, ingratitude, or cruelty.-'' A statement, however, is defamatory if it tends to bring the plaintiff into ridicule, even though there is no suggestion of any form of misconduct. '^ An action will lie, therefore, for the publication of a humorous story which exhibits the plain- tiff' in a ridiculous light, or for a caricature of his personal appearance or manners. 5 . A statement is defamatory if it amounts to a reflection Incapacity. upon the fitness or capacity of the plaintiff in his profession or trade, or in any other undertaking assumed by him. For a man is brought into contempt or disesteem if he is charged ' See Linotype Co. v. British Empire Typesetting Machine Co. (1889), 81 L. T. 331 ; South Retton Coal Co. v. N. E. News Association, (1894) 1 Q. B. p. 139. * Oh. XV. injra. 5 Cox V. Lee (1869), L. R. 4 Ex. 284; Clement v. Chivis (1829), 9 B. & C. 172. « Gooh X. Ward (1830), 6 Bing. 409; Gropp v. Tilney, 3 Salk. 225. 29(2) 452 DEFAMATION. [chap. XIV. Insanity. Insolvency. Adverse opinions of a particular class of persons. with professing to do work for which he is unqualified. Therefore it is actionable to say of a solicitor that he is ignorant of law, or to say of a physician that he has ill- treated a patient, or of an artisan that he does bad work.'' 6. A statement is defamatory if it attributes insanity to the plain tiff. 8 It is true that insanity is a misfortune and not a fault; but it is no less true that it is one of thosie misfortunes which destroy a man's reputation. 7. A statement is defamatory if it imputes insolvency to a trader ; and this is so whether or not the statement includes any suggestion of discreditable conduct or incapacity .^ It may be doubted, indeed, whether this is strictly logical. It would seem that, apart from any such suggestion, an allega- tion of insolvency should be classed merely as an injurious falsehood, not as defamation. For insolvency is not a per- sonal quality or defect like insanity, which in itself excites the disrespect or dislike or ridicule of 'other persons. It is a misfortune which is consistent with a high regard for the character and competence of the insolvent. Nevertheless it is settled law that a charge of insolvency is to be classed as defamatory, and is subject to all the severities of the law of libel, and not to the more lenien,t rules which govern cases of injiu'ious falsehood. In view of the very serious mischief which an unfounded allegation of insolvency may work, it is well that responsibility for it should be maintained at this high level. 8 . A statement is not defamatory merely because it excites hatred, contempt, ridicule, or other adverse feelings in some particular class of the community whose standard of opinion is such that the law cannot approve of it or notice it . Thus,. in the Irish case of Mawe v. PigotP-^ the plaintiff, an Irish priest, sued for words charging him with being an informer ' Capital ^- Counties Bank v. Benty (1882), 7 A. 0. p. 771; Kenwood V. Harrison (1872), L. R. 7 O. P. 606; Sadgrove v. Bole, (1901) 2 K. B. 1. 8 Morgan v. Lingan (1863), 8 L. T. (N. S.) 800; Bodson v. Pare, (1899) 1 Q. B. 455. 9 Read v. Hudson (1700), 1 Lord Baym. 610; Shepheard v. Whitaher (1875), L. R. 10 C. P. 502. lo (1869), Ir. Rep. 4 O. L. 54. SECT. 135] DEFAMATION OF A CORPORATION. 453 against, certain classes of Irish criminals; and it was held that he had no cause of action, notwithstanding the fact that such informers were held in hati-ed and bad repute by a certain section of the community which sympathised with the forms of crime in question. "We cannot," said the Court,ii "be called upon to adopt that standard. . . . We can only regard the estimation in which a man is held by society generally. "^^ § 135. Defamation of a Corporation. 1 . A statement is defamatory of a corporation, and is when a actionable as such at the suit of tiie corporation, if both of 'corporation ■■■ '_ can sue for the two following conditions exist, but not otherwise: (a) the defamation, statement must be of such a nature that it would have been defamatory had it been directed against an individual ; (b) it must also be of such a nature that its tendency is to cause actual damage to the corporation in respect of its property or business. 2. An incorporated company or other body corporate has in truth no reputation to be injured. It is a fictitious person, and cannot in the nature of things be brought into hatred, ridicule, or contempt by any manner of falsehood. The repu- tation that is in reality assailed by a charge made against a. corporation is the reputation of the members or other agents by whom the affairs of the corporation are conducted. Yet by attacking in this manner the reputation of its members and agents damage may be caused to the corporation itself in respect of its business and property. For any defamatory statement, therefore, which produoes such actual damage the corporation may sue. Nor is it necessary to prove that such damage has actually accrued ; it is sufficient if the defamatory statement is of such a kind that its tendency is to cause harm of this nature. 11 Ibid. p. 62. 12 See also Clai/ v. Roberts (1863), 8 L. T. (N. S.) 397; Miller v. David (1874), L. R. 9 0. P. 118. 4->i DEFAMATION. [CHAP. XIV. 3. 'Thus, an action >of libel will lie at the suit of a trading- corporation charged with insolvency or with dishonest or incompetent management. i- Similarly, a ooal-mining com- pany may sue on a charge of failing to supply decent and sanitary accommodation for its workmen and their families; for such an accusation tends to injure it in its business. ^ On the same principle, even a non-trading corporation, such as a municipal body, may presumably sue for a libel tending to its pecuniary damage. But where there is noi actual damage nor any tendency to produce sudi damage, no. action will lie at the suit of the corporation; the only persons who have any cause of action are the individual members or agents of the corporation who have been defamed. Thus, in Mayor of Manchester v. Williams^ it was held that a municipal corporation oould not sue for a libel charging it with corruption and bribery in the administration of municipal affairs. § 136. Interpretation of Defamatory Statements. ThemcaniDK 1. In determining whether a statement is defamatory or statements. "otj the meaning to be attributed to it is not necessarily the meaning Avith which the defendant published it, but that which is or may be presumed to be reasonably given to it by the persons bo whom it is published. The statement means in law what it naturally and reasonably means for them. "The test . . is whether, under the circumstances in which the writing was published, reasonable men to whom the publi- cation was made would be likely to understand it in a libellous sense. "1 " Itdoes not signify what the motive of the person publishing the libel was, plaintiff, not'be' The question in each case is not whether the defendant intentioDal. intended any such ref erenoo, but whether any person to whom the statement was published reasonably thought that the plaintiff' was the person referred to. Nor is it any defence that the defendant had no rea-son to suppose that anj- such reference would be attributed to his words, or even that any such person as the plaintiff existed , This remarkable appli- cation or extension of the doctrine that a man publishes defamatory statements at liis pi'vil is established as law by the decision of the House of Lords in Halloii <(■ Co. v. Jonefi.^ In this case a newspaper published an article descriptive of life in Dieppe, in which one " Artemus Jones, " described as a churchwarden at Peckham, was accused of living with a mistress in France. The writer of the article was ignorant of the existence of any person of the name of Artemus Jones, and invented the name as that of the licfci- tioui character in his narrative. Unfortunately, however, the name so chosen was that of a real person, an English barrister and journalist, and those who knew him supposed the newspaper article to refer to him. It A\as held by a majority of the Court of Appeal that the newspaper was responsible for a libel, and the decision was unanimously affirmed hj the House of Lords. Such a state of the law imposes eerious responsibilities upon writers of fiction. 3. It is not essential that the defamatory imputation Defamation Ox olfmR^s should be directed either expressly or impliedly against the of persons, plaintiff exclusively and individually. An accusation against a whole class of persons may be actionable at the suit of each of them. Thus, it is actionable to libel a firm of pai'tners, or the members of a jury, or the servants of a particular employer. In such cases of genei'al accusation, however, the 3 (1910) A. O. 20. 460 DEFAMATION. [chap. XIV. Defamation of unspecified members of a class. class must not be so large that the statement ceases to be in reality defamatory of any particular individual belonging to it . No action would lie at the suit of any one for saying that all mankind is vicious and depraved, or even for alleging that all clergymen are hypocrites or all lawyers dishonest.* For charges so general in their nature are not to be taken literally by reasonable men, but must be considered subject to such exceptions that no particular individual can reason- ably be considered to be attacked or to hav'e his reputation injured. 4. Similarly, an inifjutation may be defamatorj' and actionable at the suit of the plaintiff if it is made against some unspecified members of a class to which he belongs even though it is impossible to show that the defendant meant or was understood to mean the plaintiff individually. Thus, if the defendant says in writing that his horse has been stolen either by A or B, he kno'ws not which, then both A and B will have an action against him, for both are thereby brought under suspicion and defamed.^ But here also the class must not be so large that the charge ceases to affect the reputation of any individual member of it. Publication defined. § 139. Publication. 1 . The j)ublication of a defamatory statement means that act of making it known to any person or persons other than the plaintiff himself. It is not necessary that there should be any publication in the popular sense of making the state- ment public. A private and confidential communication to a single individual is sufficient. A communication to the person defamed himself, however, is not a sufficient publication on which to found civil proceedings;^ though it is otherwise in i Eastwood V. Solmes (1858), 1 F. & F. 347. ^ Harrison v. Thornborouffh, 10 Mod. 196. A verbal statement to this effect, however, would presumably fall within the rule that in the case of the imputation of a criminal offence words of mere .suspicion are not actionable. See infra, s. 149 (2) . 1 Pullman v. Hill, (1891) 1 Q. B. p. 527. SECT. 1391 PUBLICATION. 461 the case of a criminal prosecution. ^ Nor does a communi- cation between husband and wife amount to publication; domestic intercourse of this kind is exempted from the restrictions of the law of libel and slander. ^ But a statement bj the defendant to the wife or husband of the plaintiff is a ground of action.* 2. The contents of a written document may be published Modes of either by allowing some one to read the document for himself ^^ or by reading it out to him. It is submitted, however, that I this latter mode of communication amounts to slander only, and not to libel. A defamatory statement may be published by being dictated to a clerk, shorthand writer, or other reporter who reduces it to writing, but it is submitted in this case also that such a publication amounts to slander only. There are dicta to the contrary, indeed, in certain cases in which dictation to a clerk is said to be the publication of a libel to the clerk; but it is difficult to see how A can publish to B a document which is written by B himself .^ 3. Every man is responsible for the publication of a de- Newspaper famatory statement by ajnother with his authority, and for ^^^° '"' this reason a speaker who knows that his words are being reported for the public press, and who expressly or impliedly sanctions such a publication, can be sued for libel and not merely for slander.^ 4. A publication is not sufficient unless it is made to a No pubiica- person who understands the defamatory significance of the defamatory statement, and who also understands that it refers to the reference to plaiutiii plaintiff. Thus in Sadgrove v. HoM the defendant sent to a understood. third person a postcard containing a defamatory statement relating to the plaintiff. The plaintiff's name, however, was not mentioned in it, and no stranger unacquainted with the circumstances would have known to whom it referred. It 2 R. V. Adams (1888), 22 Q. B. D. 66. 3 Wennhah v. Morgan (1888), 20 Q. B. D. 635. 4 Wenman v. Ash (1853), 13 O. B. 836. s Pullman v. MUl, (1891) 1 Q. B. at pp. 527, 529; Boxs-ius y. Goblet Freres, (1894) 1 Q. B. at p. 844. 6 Parkes v. Prescott (1869), L. R. 4 Ex. 169. 7 (1901) 2 K. B. 1. 462 DEFAMATION. [CHAP. XIV. was held that there was no sufficient publication to the post- man or other persons through whose hands the postcard passed.® Publication 5 Publication will be presumed, and the burden of dis- pTesumed m _ ^ certain cases, proving it lies upon the defendant, in all cases in which the document is so put in the way of being read and understood bv some one that it is probable that he actually read and understood it. Thus, it is a sufficient proof of publication to prove that a letter was posted, and therefore probably read by the person to whom it was addressed or by his clerks; or that a postcard was posted, and therefore probably read by the post-office officials or by the family or servants of him to whom it was sent; or that a document was printed, and therefore published to the compositors; or that a tele- gram was despatched, and therefore read by the telegraph operators.^ Unintentional (; Publication need not be intentional, for it is sufficient publication. if it is due to the negligence of the defendant; but an un- intentional publication due to no negligence is not actionable. Thus, a publication to the wrong person by mistake is a ground of action: as when a document is meant to be sent to the plaintiff himself, or to some person privileged to receive it, and it is sent in error to some one else.^" So a negligent statement of something not intended to be stated at all is actionable: as in Shepheard V. Whifaker,'^^ where the de- fondants mistakenly inserted in their newspaper the name of the plaintiff's firm under the head of " First meetings under the Bankruptcy Act," instead of under that of " Dissolutions of Partnership." Similarly, the publication of a document which is not known by the defendant to contain the defama- tory statement complained of, but which he ought to have 8 No action would lie for the publication to the person to ■whom the card was addressed, since, so far as he was concerned, the communica- tion was privileged. See as to privilege, 3. 141, infra. 9 Sadgrove v. Hole, (1901) 2 K. B. I; Warren v. Warren (1834), 1 ■O. jVI. & R. 250. Alitor in the ease of a letter in an unclosed envelope. Huth V. Huth, (1915) 3 K. B. 32. 10 Foa V. Broderick (1864), 14 Ir. 0. L. Rep. 453; Hebditch v. Mollwaine, (1894) 2 Q. B. 54, overruling To-mpson v. I>ashwood (1883), 11 Q. B. D. 43. , 11 (1875), L. R. 10 O. P. 502. SECT. 139] PUBLICATION, -^^3 known to do so, is a good ground of action. In Ti::e.telly v. Miidie's Select Library^'^ the defendants wore successfully sued for putting in circulation a book containing a jDassage defamatory of the plaintiff, the jury finding as a fact that the defendants were negligent in not taking any precautions to ascertain the natiu-e of the books issued by them. On the other hand, if there is no negligence in such case the inno- cent disseminator of defamatory literature is not responsible. In Emmens v. Pottle,^^ for example, it was held that a news- vendor was not liable for a libel contained in a newspaper sold by him in the ordinary couree of business, there being, as the jury found, no knowledge of the existence of the libel nor any negligence in failing to acquire such knowledge. On the same principle, it is actionable to communicate negligently a statement known to be defamatory, but not intended to be published: as when a man, talking scandal to his wife, negligently allows it to be overheard by a third person; or when he posts to the plaintiff himself or to a privi- leged person a defamatory micssage written on a postcard, instead of in a closed letter. ^'^ So it is actionable to send a defamatory letter to the plaintiff addressed in such a way that in the ordinary course of business it will be opened by the plaintiff's clerks. ^^ Even the publication of the letter to the defendant's own clerks in theordinary way of business is sufficient to create liability. ^^ 7. Where there are several publications of the same libel Consolidation (as, for example, in different newspapers), a separate action will lie for each publication; but in such cases it is provided by the Law of Libel Amendment Act, 1888, ^^ that on the application of the defendants the actions may be consolidated 12 (1900) 2 Q. B. 170. 13 (1885), 16 Q. B. D. 354. See also to tlie same effect, Welden v. Times Book Co. (1912), 28 T. L. E. 143. 1* Sadgrove v. Hole, (1901) 2 K. B. 1. 15 Pullman v. Hill, (1891) 1 Q. B. 524. Of. Sharp v. Skues (1909), 25 T. L. R. 336. 16 Pullman v. HUl, (1891) 1 Q. B. 524. Aliter ii the occasion is on© of privilege: Boxsius v. Goblet Freres, (1894) 1 Q. B. 842; Edmondson v. Birch # Co., (1907) 1 K. B. 371. See itifra, s. 143 (7). 17 51 & 52 Vict. c. 64, s. 5. 464 DEFAMATION. [chap. XIV. and tried together, the total amount of damages being assessed as one sum, and apportioned among the several defendants as the jury thinks fit. By the same Act^^ it is provided that in any action for a libel contained in a news- paper the defendant may prove in mitigation of damages that the plaintiff has already recovered or received or sued for compensation in respect of any other publication of the same or a similar libel. Truth a good defence. Aliter in a criminal prosecution. Burden of proof. § 140. Justification. 1 . No action will lie for the publication of a defamatory statement if the defendant pleads and proves that it is true. " For the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess."^ And this is so even though the defendant is proved to have been actuated by malicious and improper motives. 2. In a criminal prosecution for libel the rule is different. At common law the truth was no defence at all on an indict- ment; but by statute^ the publication of the truth, however defamatory, is no longer a criminal offence if the jury is of opinion that the publication of it was for the public benefit. The truth of a matter which does not concern the public is still no defence on a criminal charge, though it is a bar to any civil proceedings. 3 . The defence that the statement is true is termed a plea of justification, the defendant being said to justify the publi- cation. The burden of proof rests upon the defendant; it is for him to prove that the statement is true, not for the plain- tiff to prove that it is false. 3 The defence is a dangerous one, for an unsuccessful attempt to establish it may be treated as an aggravation of the original injury. 18 51 & 52 Vict. c. 64, s. 6. 1 McPherson v. Daniels (1829), 10 B. & O. p. 272. 2 6 & 7 Vict. c. 96, s. 6. 3 McPherson v. Daniels (1829), 10 B. & C. p. 272. SECT. 140J JUSTIFICATION. 465 4 . If the statement is in fact false, it is no defence at Honest belief all that the defendant honestly and on reasonable grounds statement no believed it to be true. He who attacks the reputation of <3efence. another does so at his peril; and mistake, however inevitable, is no excuse. A rule which thus makes an innocent error tlie ground of serious liability is capable on occasion of working grave hardship, but on the whole it is doubtless just and expedient to accept no such excuse from those who without sufficient occasion attack, however honestly, the good name of others. When, on the other hand, there is a sufficient occasion for the publication — some reason of duty or legiti- mate self-interest, for example — the defendant is exempted, as we shall see, from the rigour of this rule, and is free from liability for error so long as he acts honestly and from proper motives. 5. On the plea of justification it is not necessary to prove Sufficient if that the statement is literally true; it is sufficient if it is true gub'steatially in substance. And it is true in substance if the essence of the true, imputation is true and if the erroneous details in no way aggravate the defamatory character of the statement or niter its nature. Thus, a statement that the plaintiff had been convicted of travelling in a train without a ticket, and had been fined one pound with three weeks' imprisonment in default of payment, was held sufficiently justified by proof that he had been fined one pound for that offence with a fortnight's imprisonment in default of payment.^ On the other hand, it is no justification of the statement that the plaintiff is a libellous journalist to prove that he has libelled one man; for the. true meaning of the statement in question is that he habitually publishes libels.^ 6 . When the defamatory statement is put forward by way Statements of rumour or report only, it is not sufficient justification to rumour or prove that the rumour or report really existed; it is report, necessary to prove that it was true . For to give to it further currency is to suggest that it may be well founded, and it is 4 Alexander v. N. E. My. Co. (1865), 6 B. & S. 340. 5 WaUey v. Coohe (1849), 4 Ex. 511. s. 30 466 DEFAMATION. [CHAP. XIV. this suggestion that must be justified. On the same iDrinciple it is defamatory and actionable to publish of the plaintiff that he is suspected of some crime or other discreditable conduct; and it is no defence to prove that such a suspicion actually existed. Were it not for this rule every man could escape the consequences of publishing libels and slanders by adopting the simple precaution of stating them as matters of rumour and suspicion, instead of as matters of fact.'' § 141. Privilege. Privilege 1 . We have seen that in general he who publishes a defama- tory statement does so at his peril, and is liable if this state- ment turns out not to be true, however honestly and carefully he may have acted, and however inevitable his mistake. This rule is subject to a number of important exceptions which are grouped together under the title of Privilege. A privileged statement may be defined as one which is made in suoh cir- cumstances as to be exempt froim the rule that a man attacks the reputation of another at his ovsm risk. In other words, privilege includes all those exoeptionaj cases in which it is not enough, in order to create liability, to prove that the de- fendant has published a false and defamatory statement. The defendant, being privileged, is not responsible for this alone, but is either whoUy free from responsibility or is liable only on proof that he was animated by a malicious motive and not by any g'cnuine intention to use his privilege for the purpose for which the law gave it to him.^ The cases in which privilege exists are, speaking generally, those in which there is some just occasion for publishing defamatory matter in the public interest or in the further- ance or protection of the rights or lawful interests of indi- viduals. In such cases the exigency of the occasion amounts to a lawful excuse foo- the attack so made upon the plaintiff's 6 Watkin v. Rail (1868), L. R. 3 Q. B. 396; McPherson v. Daniels (1829), 10 B. & O. 263; Monson v. Tussaud's, Ltd., (1894) 1 Q. B. 671. 1 See Stuart v. Bell, (1891) 2 Q. B. p. 345. SECT. 141] PRIVILEGE. "l^^ reputation. The right of free speech is allowed wholly or partially to prevail over the right of reputation. For while it is just and reasonable to maintain the rule tliat he who wantonly and without just and necessary occasion attacks the reputation of another, however honestly, must answer for the actual truth of his words, this rule would be unwarrant- ably severe in its application to those who, in the performance of public or private duty, or in the legitimate protection of public or private interests, find it necessary to make im- putations upon the good name of other persons. 2. If the defamatory statement can be shown to be true, Privilege and the defence of privilege is not required; for it is allowable to publish the truth on all occasions, privileged or not, and from all motives, good or bad. It is only when the statement is false, or cannot be proved to be true, that it is necessary to fall back upon the plea of privilege, and to prove that the occasion of the publication \\'as suda as to exempt the defendant from the consequences of his error. Whenever privilege exists, however, it is wise to plead it instead of or along with a plea of justification; for the latter is a dangerous weapon, which often fails and even injures liim who uses it. 3. Privilege is of two kinds, distinguished as absolute and Absolute qualified. A statement is said to be absolutely privileged ^"^'^ ^°^' when it is of such a nature that no action will lie for it, how- ever false and defamatory it may be, and even though it is made maliciously — that is to say, from some improper motive. The right of free speech is allowed to prevail wholly over the right of reputation. These cases are at the opposite extreme from the ordinary cases of unprivileged defam'ation. When a statement is not privileged, it is actionable, however honest its publication may have been; but if it is absolutely privi- leged, it is not actionable, however dishonest its publication may have been. As may be expected, the cases in which the right of free speech can be placed at so high a level are few in number and quite exceptional in character. 4. Qualified privilege, on the other hand, exists when the Qualified defendant is exempted from the rule of strict liability, not " " absolutely, but only conditionally on the absence of malice. ~ 30(2) ^~ ' 468 DEFAMATION. [chap, XIV. Malice means in this connection the presence of an improper motive — a purpose to abuse the privilege for some indirect object, instead of a purpose to use it for the end for "which the law provides it. Qualified privilege, therefore, is an intermediate case between total absence of privilege and the presence of absolute privilege. ^ Cases of absolute privilege. Judicial privilege. § 142. Absolute Privilege. 1. The following statements are absolutely privileged, so that no action will lie in respect of them, however false, defamatory, and malicious they may be: — (a) Any statement made in the course of and with refer- ence to judicial proceedings by any judge, jury- man, party, witness, or advocate; (&) Any statement made in Parliament by a member of either House; (c) Any statement made by one officer of State to another in the course of his official duty; (d) ? Fair, accurate, and contemporaneous reports of public judicial proceedings published in a news- paper; (e) Parliamentary papers publisbed by the direction of either Bouse, and any republication thereof by any person in full. 2. Judicial Privilege. " Tlie authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge can be put to answer civilly or criminally for words spoken in office; that no action for libel or slander lies, ^ The exposition of the law of defamaition was at one time encum- bered by a useless legal fiction known as the doctrine of implied malice. It used to be said that malice was an essential element in all actions for libel and slander, whether the occasion was privileged or not; but that when there was no privilege, malice was conclusively presumed from the mere fact of publication. The existence of privilege, on the other hand, excluded any such presumption. Absolute privilege excluded it conclusively; but when the privilege was qualified merely, it remained open to the plaintifi! to prove as a fact that malice existed. Malice which was thus presumed in law was called implied malice, while that which was proved as a fact in oases of qualified privilege was known as express or actual malice. Implied malice has now been eliminated from the law. It is now recognised that malice is no more an essential element in the wrong of defamation than in that of trespass or con- version. SECT. 142J ABSOLUTE PRIVILEGE. 469 whether against judges, counsel, witnesses, or parties, for AA'ords written or spoken in tliie course of any proceeding before any Court recognised by law, and this though the words were written or spoken maKciously without any justification or excuse, and from personal ill-will and anger against the person defamed. This absolute privilege has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of Justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them."^ The privilege extends to all Courts, superior and inferior, civil and militarj.^ But it does not apply to officials pos- sessing merely administrative as opposed to properly judicial functions; and it makes no difference that in the perform- ance of these administrative functions they exercise a judicial discretion. Thus, a meeting of the London County Council engaged in hearing applications for music and dancing licenses is not a Court Avithin the meaning of tlie rule, and statements made by a member of that body are not abso- lutely privileged. 3 The privilege extends not merely to judges,* but to witnesses,^ parties,'' and advocates.'' It in- 1 Royal Aquarium Co. r. Parkinson, (1892) 1 Q. B. p. 451, per Lopes, L. J. 2 Scott V. Stansfleld (1868), L. R. 3 Ex. 220 (County Court); Thomas V. Churton (1862), 2 B. & S. 475 (coroner); Hodson v. Pare, (1899) 1 Q. B. 455 (justice of the peace) ; Hawkins v. Lord Roheby (1873), L. R. v^ 8 Q. B. 255 (court-martial); Law v. Llewelhjn, (1906) 1 K, B. 487 ^ (magistrate); Bottomley v. Brougham, (1908) 1 K. B. bS'k'f- Burr v. ^^' Smith, (1909) 2 K. B. 306 (official receiver reporting on the winding- up of a company). The same privilege protects statements made before a select committee of Parliament: Goffln v. Donndly (1880), 6 Q. B. D. 307. 3 Royal Aquarium Co. v. Parkinson, (1892) 1 Q. B. 431. v ^ Scott V. Stansfleld (1866), L. R. 3 Ex. 220. In the case of judges, however, this is simply a special instance of a much more general rule of exemption from civil liability for judicial acts. As to this, see ss. 155 and 166, infra. y 6 Seaman v. Netherclift (1816), 2 O. P. D. 53; Barratt v. Reams, (1905) 1 K. B. 504. 6 Hodson V. Pare, (1899) 1 Q. B. 455. 7 Munster v. Lamb (1883), 11 Q. B. D. 588. U 470 DEFAMATION. [chap. XIV. Parlia- mentary privilege. Official privilege. eludes not merely statements made by a witne^ in Court, but also statements made by him to a party, or to the party's solicitor, in the oour&e of preparation for trial. ^ The statement in order to be privileged need not be relevant, in the sense of having a material bearing up'on the matter in issue in the case. Thus, the statement of a witness is pri\i- leged, even tliough inadmissible as evidence, and even though so immaterial that no prosecution for perjury would be possible in respect of it. Nevertheless the statement, though it need not be relevant in this sense, must, it would seem, be made in the course of and with reference to the case in hand. A judge who from the bench made a defamatory observa- tion in respect of some entirely extraneous matter would no longer be speaking in his capacity as a judge, and would have no privilege. ^ 3. Parliamentary Privilege. " It is clear that statements made by members of eith'er House of Parliament in their places in the House, though they naight be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a tliird person. "1° 4. Official Privilege. It was decided by the Court of Appeal in Chatterton v. Secretary of State for India^^ that an official communication made by the Secretary of State for India to the Under-Secretary for the purpose of enabling the latter to answer a question in the House of Commons was absolutely privileged. " It is not competent to a civil Court," says Lord Es.her,i2 " to entertain a suit in respect of the action of an official of Stete in making such a com- munication to another official in the course of his official duty, or to inquire wh'ether or not he acted maliciously in making it." It does not clearly appear, however, what 8 Watson V. McEwen, (1905) A. O. 480. 3 See Seaman v. Netherclift (1876), 2 O. P. D. p. 56; Mimster v. Lamb (1883), 11 Q. B. D. 588. ,/ 10 Ex parte Wason (1869), L. R. 4 Q. B. p. 576. 11 (1895) 2 Q. B. 189. 12 Ihid. p. 191. mentary papers. SECT. 142] ABSOLUTE PRIVILEGE. 471 classes of public sci'vante are to be deemed "officials of State " -within tbe meaning- of tliis rule.^^ 5. Beports of Judicial Proceedings. By the Law of Libel P"vileged Amendment Act, 1888, i* it is provided that " A fair and accurate report in any newspaper^^ of proceedings publicly heard before any Court exercising judicial authority shall, if published contemporaneously with such proceedings, be privi- leged; provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter." It is submitted tlaat the word privileged in this section means absolutely privileged, but its interpretation is far from clear. ^^ If any of the conditions mentioned in this section are absent, a report of judicial proceedings falls within the rule of the common law, and possesses at the most a merely qualified privilege. ^^ 6. Parliamentary Papers. By the Parliamentary Papers Parlia- Act, 1840,1^ absolute privilege is conferred upon the publica- tion by order of either House of Parliament of the reports, pajoers, votes, or proceedings of eithcir House, and also upon the republication in fuU of any documents of this nature which have been already published by such authority. At common law the protection accorded to statements made in Parliament did not extend to the publication of defamatory documents elsewhere, even by order of one of the Houses; ^^ and this Act was passed to alter the law in this respect. ^^ § 143, Qualified Privilege. 1 . A statement is said to possess a qualified privilege when. Malice although false and defamatory, it is not actionable without 1^ As to official communications in military and naval matters, see JJawlcbis V. Lord Paulet (1869), L. R. 5 Q. B. 94. Odgers on Libel, p. 245, 5th ed. " 51 & 52 Vict. c. 64, s. 3. 15 As defined in sect. 1. ^^ See Odgers on Libel, p. 325, 5th ed. " Infra, s. 147. is 3 & 4 Vict. c. 9. w Stockdale v. Hansard (1839), 9 A. & E. 1. 20 The publication of cxtoots from or abstracts of parliamentary papers is the subject of qitalified privilege only: 3 & 4 Vict. c. 9, s. 3. See Mangena v. Wright, (1909) 2 K. B. 958. As to the publication of defamatory matter at the order or request of the Executive Govern- ment, see the Law of Libel Amendment Act, 1888, s. 4. 472 DEFAMATION. [chap. XIV. Negligence irreleTant. Wilful falsehood. proof of malice. Malice means the presence of an improper motive. A statement is malicious when it is made for some purpose other than the purpose for which the law confers the privilege of making it. " If the occasion is privileged, it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion for some indirect and wrong motive. "^ 2. It is neither necessary nor sufficient to constitute lia- bility that the statement was made without reasonable and probable cause. Not necessary — for if the statement is made maliciously, and is in fact false, the defendant is liable for it although lie had g^ood grounds for believing it to be true; malice destroys the privilege, and leaves the defendant subject to the ordinary law hy which a mistake, however reasonable, is no defence. Neither is the absence of reasonable and pro- bable cause sufficient in itself to constitute liability. The law requires tliat a privilege shall be used honestly, but not that it shall be used carefully. Negligenoe in making defamatory statements on a privileged occasion is not actionable. ^ The unreasonableness of the defendant's belief may, however, amount to evidence of malice.^ 3. The absence of any genuine belief in the truth of the statement is conclusive proof of malice, for the defendant cannot have had a proper motive in saying what he did not believe to be true.* On the other hand, a genuine belief in the truth of the statement is quite consistent with the exist- ence of malice. It is not enough to avoid liability that the defendant said what he believed to be true; he must have said it for the purpose for which the law allows such state- ments to be made. 1 Clark V. Molyneux (1877), 3 Q. B. D. at p. 246, per Brett, L. J. For similar definitions of malice, see Nevill v. Fine Arts Insurance Co., (1895) 2 Q. B. p. 171; Soijal Aquarium' Co. v. Parkinson, (1892) 1 Q. B. p. 4S4. 2 Clark V. Molyneux (1877), 3 Q. B. D. 244; Pittard v. Oliver, (1891) 1 Q. B. 474. 3 Royal Aquarium Co. v. Parkinson, (1892) 1 (J. B. p. 454. * See the authorities on proof of malice in cases of malicious pro- secution. Infra, s. 157 (11). SECT. 143] QUALIFIED PRIVILEGE. 473 4. Whether a statement is privileged is a question of law Privilege a for the Judge. The question for the jury is not whether the yHaw"" statement is privileged, but whether it was made maliciously, so that the pri\ilege -was thereby forfeited.^ Yet if there is any preliminary question of fact on which this question of law depends, then that fact must be determined by the jury. Thus, it is a rule of law that an accurate report of judicial proceedings is privileged, but it is a question of fact for the jury whether the report is accurate or not. 5 . The existence of malioe is a question of fact for the jury, Malice a but the burden of proof lies upon the plaintiff; and the Judge ^hejury.*"" has to be satisfied that there is some reasonable evidence of malioe to go to the jm'y. On a plea of privilege it is not for the defendant to prove that he used his privilege honestly and for its proper purpose; it is for the 23laintiff to prove that the privilege was maliciously abused. Since the burden of proof thus rests upon the plaintiff, the question of malice must not be left to the jury, unless the plaintiff has produced reason- able evidence of its existence.^ 6. Evidence of malica may be either intrinsic or extrinsic. Evidence Intrinsic evidence consists in the contents of the statement itself. Its language, for example, may be so violent or insulting — it may go so far bej'ond the just requirements of the occasion — as to amount in itself to sufficient evidence of malice.^ Extrinsic evidence consisits in the circumistances under which the statement was made — circumstances Avhich go to show that the statement, even though moderate and justifiable in its language, was in reality animated by some improper motive. It is not necessary that the plaintiff should prove affirmatively what this improper motive really was; it is sufficient to dispro\'e the existence of a proper ■' Nevill V. Fine Arts Insurance Co., (1895) 2 Q. B. at p. 169; Stuart V. Bell, (1891) 2 Q. B. at p. 345. 6 Somerville v. Hawkins (1851), 10 O. B. 583; Laughton v. Bishop of Sodor # Man (1872), L. R. 4 P. O. 495; Jenoure v. Delmege, (1891) A. O. 73; McQuire v. Western Morning News, (1903) 2 K. B. 100; ClarTc v. Molyneux (1877), 3 Q. B. D. 237. ^ Laughton v. Bishop of Sodor # Man (1872), L. R. 4 P. O. at p. 505; Spill V. Maule (1869), L. R. 4 Ex. 232; Clark v. Molyneux (1877), 3 Q. B. D. p. 245. 474 DEFAMATION. [chap. XIV. Excess of privilege. No excess if publication reasonably necessary for use of privilege. motive: for example, by showing that the defendant had no genuine belief in the truth of the statement. ^ 7. Privilege is forfeited if it is exceeded — that is tO' say, if the publication of the defamatory statement is more ex- tensive than the ocoasioii of the privilege requires and justifies . Certain forms of privilege, indeed, piermit of publication to the whole world: for example, the reports of judicial pro- ceedings, or fair comment on matters of public interest. Privilege such as this cannot be exceeded in the sense now under ooinsideration . But in other oases the privilege is limited to a publication to oertain persons only; it is a right of restricted publication; and any disregard, whether intentional or negligent, of the limits thus imposed is termed an excess of privilege, and deprives the defendant of the benefit of it.^ Thus, in Williamson v. Freer,^^ it was held that a message which would have been privileged had it been sent in a closed letter was unprivileged because sent by telegraph, for it was thereby published to the telegraph operator. Similarly, a publication to a person who is mis- takenly believed to be privileged to receive the communica- tion is an excess of privilege which will render the defendant liable." No publication, however, which is reasonably necessary for the effective use of the defendant's privilege amounts to an excess of it. Thus, it has been held that the act of the directors of a company in printing for distribution among the shareholders an auditor's report on the affairs of the company was not an excess of privilege. ^^ g^, ^^ j^g^ he&n held that defamatory statements made at a meeting of a board of guardians were privileged, notwithstanding the presence of 8 Clarlc T. Molyneux (1877), 3 Q. B. D. p. 245. 3 There is another use sometimes made of the phrase " excess of privilege " in which it means not an excessive publication of a privi- leged statement, but the improper and malicious use of that privilege. In this latter sense evidence of excess means merely evidence of malice. w (1874), L. E. 9 C. P. 393. 11 Hebditch v. Mollwaine, (1894) 2 Q. B. 54. 12 Lawless v. Anrflo-lBgy-ptian Cotton Co. (1869), L. R. 4 Q. B. 262. SECT. 143] QUALIFIED PRIVILEGE. 475 reporters for the press. ^^ So a solicitor writing a defamatory and privileged letter on behalf of his client does not exceed and forfeit his privilege by publishing the letter in the ordinary course of business to liis clerks. ^^ So in Edmond- xoii- y. Birch d: Co.^^ it was held that a company sending lettei's and telegrams on a privileged occasion to another company carrying on business abroad was not liable for pub- lishing those letters and telegrams fco its own servants in the ordinaxj- way of business. "The person exercising the privilege," says Collins, M. E.,i6 "is entitled to take all reasonable means of so doing, and those reasonable means may include the introduction of third persons where that is reasonable and in the ordinary course of business; and, if so, it will not dest^^oy the privilege." So Fletcher Moulton, L..J., says;!" " If a business communioation is privileged as being made on a privileged occasion, the privilege covers all incidents of the transmission and treatment of that com- munication which are in accordance with the reasonable and usual course of business. "^^ 8. The agents through whom a person properly publishes Privilege of a privileged communication are themselves covered by the f^ndTto like privilege : for example, a printer who prints a privileged agent, document, the printing of which is not an excess of privi- lege, or a solicitor who in the course of his duty towiai'ds his client publishes a statement which his client is privi- leged to publish. 13 13 Pittard V. Oliver, (1891) 1 Q. B. 474. li Boxsius V. Goblet Freres, (1894) 1 Q. B. 842. 15 (1907) 1 K. B. 371. 1" Ibid. p. 380. " Ibid. p. 382. IS Since Boxsius v. Goblet Freres, (18^4) 1 Q. B. 842, and Edmondson V. Birch # Co., (1907) 1 K. B. 371, the earlier case of Pullman v. SUl, (1891) 1 Q. B. 524, can be regarded as nothing more than a decision that on the particular facts of the case the communication to the defendants' clerks was not necessary or in the ordinary course of business. 19 Baker v. Carriok, (1894) 1 Q. B. 838; Smith v. Streatfield, (1913) 3 K. B. 764. In the latteir case it was held by Bankes, J., that in euoh circumstances malice on the part of the principal, although unknown to the agent, deprives the agent of his privilege. "In the case of a joint publication of a libel," says the learned judge at p. 769, " each tort-feasor is liable for the malice of the other." It was held accordingly that a printer who printed a privileged communication was liable for the malice of the principal for whom he printed it. The correctness of this 476 DEFAMATION, [chap. XIV. Cases of qualified privilege. 9. The chief instances of qualified privilege are the following: — (a) Statements made in the performance of a duty; (b) Statements made in the protection of an interest; (c) Fair comment on matters of public interest; (d) Reports of parliamentary, judicial, and certain other public proceedings. Duty to make a statement. Answering inquiries. § 144. Statements in Performance of Duty. 1 . A statement is conditionalh' privileged if it is made in the performance of an}- legal or moral duty imposed upon the person making it.^ The hard rule of absolute liability for error is applicable only to those persons who, without any just call or occasion, venture to attack the reputation of others. But where a defamatory statement is made in the fulfilment of a duty, there is no liability in the absence of malice. The duty need not be, and indeed seldom is, one enfoxceable at law; it is sufficient that by the moral standard of right conduct pre- valent in the community the defendant lay under an obliga- tion to say what he did. It is not enough that he believed himself to be under such an obligation. " The question is, what is the defendant's duty, not what he thinks to be his duty."- It is for the Judge, and not for the jurj^, to decide whether on the facts as proved such a duty existed. ^ 2. An important kind of duty which will give privilege to a defamatory statement is the duty of answering inquiries decision seems open to doubt. The law as to joint wrongdoers seems irrelevant in this connection, for the question for decision was whether the printer was a wrongdoer at all. It would seem that the decision can be supported, if at all, only on the principle that in such cases the agent has no privilege of his own at all, but must shelter himself behind the privilege of his principal, and that if this privilege is destroyed by the malice of the principal, the agent' is necessarily left defenceless. This, however, seems hard law. 1 Toogood V. Spyrimg (1834), 1 O. M. & R. 181; Stuart v. Bell, (1891) 2 Q. B. 341. 2 IVhitely V. Adams (1863), 15 O. B. (N. S.) p. 412. See also Stitnrt V. Bell, (1891) 2 Q. B. 341. 3 Stuart v. Bell, (1891) 2 Q. B. p. 350. SECT. 144] STATEMENTS IN PEKFORMANCE OF DUTY. i" made b}- some pei-son having a lawful interest in the matter. Thus, an employer may answer questions as to the character of a former servant made bj' any person proposing to engage that servant^ So one trader may answer tlie inquiries of another as to tlie solvency of a third with whom the second proposes to do business. & So an accusation of crime is privileged if made in reply to questions made by the police with a view of detecting an offender.^ 3. A communication which is volunteered, without any Volunteered inquiry on the part of any one possessing a lawful interest, ^ ^ ®'"^" *' is unprivileged, unless there is some such confidential or other relation between the parties as creates a duty to speak without being asked. Thus, the relation of master and servant will justify the servant in telling his master facts which concern liis interest in relation to the matters intrusted to the ser- vant.'' For the same reason a father or other near relative may warn a lady as to the character of the man whom she proposes to marry. ^ So a host owes a duty to his guest which will justify him in warning his guest against a servant suspected of dishonesty. ^ So the members of borough coun- cils and other public bodies are privileged in respect of com- munications made to one another in the honest fulfilment of their f unctions. ^° So a solicitor owes a duty to his client which confers upon the solicitor the same privilege, if any, that is p'ossessed by his client in the matter. ii On the other hand, in Macintosh v. Dun^^ it has been held by the Privy Council that a trade-proteotion company, whose business it is to make on behalf of its clients inquiries into the financial position of persons with whom thosie clients propose to deal, i Jackson v. Sopperton (1864), 16 O. B. (N. S.) 829. 5 Jtobshaw V. Smith (1878), 38 L. T. (N. S.) 423. Of. Macintosh v. Dun, (1908) A. O. 390. 6 Kine V. Sewell (1838), 3 M. & W. 297. '' Lawless v. Anglo-Egyptian Cotton Co. (1869), L. E. 4 Q. B. 262; Cooke V. wades (1855), 5 B. & B. 328. 8 Todd V. Bawkins (1837), 8 C. & P. 88. 9 Stuart V. Bell, (1891) 2 Q. B. 341. 10 Andrews v. Nott Bower, (189S) 1 Q. B. 888. 11 Baker v. Carrick, (1894) 1 Q. B. 838. 12 (1908) A. O. 390; followed by the Court of Appeal in Green- lands, Lid. V. Wilmshurst, (1913) 3 K. B. 507. 478 DEFAMATION. |_CHAP. XIV. Privileged publication to the world at large. possesses no privilege, and carries on sudh a business at its own peril. It is true that in such a case the information complained of as defamatory is supplied at the request of ■ persons having a lawful interest in the matter, but this request is itself solicited a^ a matter of business by the de- fendant, and therefore imposes on the defendant no such duty as is required in order bo give rise to privilege. 4. Although in all ordinary cashes the publication, in order to be privileged as made in pursuance of a duty, must be confined to individual persons, there are exceptional cases in which there is a duty of publidation to the world at large, and in those cases such a jDublication is privileged accordingly. Thus in Adam v. Ward^^ the plaintiff had publicly attacked the professional character and competency of an army officer. The Army Council, having investigated the matter, found that the attack was unjustifiable. Where- upon the defendant, the permanent Under -Secretary for War, acting by the instructions of his superiors in the War Office, caused to be published in the newspapers an official cormnunique setting forth the fadts of the case and con- taining statements defamatory of the plaintiff. It was held by the Court of Appeal that this publication was privileged as made in the performance of a duty to the public. " If," says Buckley, L. J., " the matter is of public interest, and the P'arty who publishes it owes a duty to communicate it to the public, the publication is privileged." The mere fact, however, that a matter is of public interest is not itself, apart from such a duty of iDublidation, the ground of any such privilege. Interest in making a statement. § 145. Statements in the Protection of an Interest. 1. Even when there is no duty bo make the statement, it is nevertheless privileged if it is made in the protection of some lawful interest of the person maMng it: for example, if it is made in the defence of his own property or reputation. 13 (1915), 31 T. L. R. 299. SECT. 145] STATEMENTS IN PROTECTION OF INTEREST. 479 Thus, a master has a sufficient intei-est in the honesty of his I'^^ate •■IT- • • 11 intei-est. ser\ants to be pi'ivileg^ed in warning them against the chai'- acter of their associates. ^ So a tenant may make a complaint to his landlord of the conduct of persons engaged by the latter to elfect repairs to the premises. ^ Con\'ersely, a landlord may complain to his tenant of the oonduct of the latter's lodgers as having a tendency to bring the house into disrepute. ^ So joint o^^'ners of property, or partners in the same business, or shareholders in the same company may make privileged com- munications to eaoh other in defence and furtherance of their common interests.^ 2 . The same principle is applicable c\'cn when the interest Public of the defendant is merely the general interest which he possesses in common with all others in the honest and efficient exercise by public officials of the duties intrusted to them. Thus, any member of the pubKc may make charges of mis- conduct against any servant of the Crown, and the communi- cation will be privileged; 5 but the charge must be made to the proper persons — that is to say, to those who have the control of the official whose conduct is impugned. A com- munication to the wrong person, and a fortiori a publication of the complaint to the world at large in a newspaper or otberwise, is an excess of privilege, and the privilege will be thereby forfeited.^ 3. This privilege of making complaints against public TWs privilege officials must not be confounded with the privilege of making from That of fair comments on matters of public interest, which will be ^*"' comment, discussed in the succeeding section. The former pri\-ilege deals with false and defamatory statements of fact, not with defamatory comment on piroved or admitted facts. A comment may be published to all the world; a specific charge of misoonducit must be published only to the persons in authority over the offender. 1 SomervUle v. HawJcins (1651), 10 O. B. 583; Hunt v. Gt. N. My. Co., (1891) 2 Q. B. 189. 2 Toogood V. Spyring (1834), 1 O. M. & R. 181. 3 See Knight v. Gibbs (1834), 1 A. & E. 43. 4 Lawless v. Anglo-Egyptian Cotton Co. (1869), L. E. 4 Q. B. 262; Quartz HUl Gold Mining Co. v. Beall (1882), 20 Ch. D. 501. 5 Morrison v. Bush (1855), 5 E. & B. 344. 6 Purcell V. Sowler (1878), 2 O. P. D. 215. 480 DEFAMATION. [chap. XIV. Fair comment. Distin- guished from statements of fact. § 146. Fair Comment. 1. A statement is privileged if it is a fair comment on a matter which is of public interest or is submitted to public criticism.! 2. Comment or criticism must be carefully distinguished from a statement lof fact. The former is privileged if it relates to a matter which is of public interest; the latter is unprivileged and actionable, even though the facts so stated would, if true, have possessed the greatest public interest and importance. " The distinction," says the Privy Council in Davis v. Shepstone," " cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or dis- creditable language used. It is one thing to comment upon or criticise even with severitj' the acknowledged or proved acts of a public man, and quite another to assent that he has been guilty of particular acts of misconduct." So also in the Irish case of Lefroy v. Burnside? it is said: " That a fair and bond fide comment on a matter of public! interest is an excuse of what would otherwise be a defamatory publi- cation is admitted. The very statement, however, of this rule assumes the matter of fact commented upon to be some- how or other ascertained. It does not mean that a man may invent facts, and comment on the facts so invented, in what would be a fair and bond fide manner on the supposition that the facts were true." " Comment in order to be fair must be based upon facts, and if a defendant cannot show that his comments contain no misstatements of fact he cannot prove a defence of fair comment." * 1 Hemoood v. Harrison (1872), L. E. 7 C. P. 606; Thomas v. Brad- burtj, Agneiv ^ Co., (1906) 2 K. B. 627. 2 (1886), 11 A. 0. p. 190. 3 (1879), 4 L. R. Ir. p. 565. * Dighy v. Financial N^eivs, (1907) 1 K. B. 502, -per Ollina, M. E., at page 507. So also in Peter Walker 4' Son, Ltd. v. Hodfjson, (1909) 1 K. B. 239, at pagie 256, it is said by Kennedy, L. J.: "Wheire the words which are alleged to be defamatory allege, or assume as true, facts conoerniog the plaintifE which the plaintiff denies, and which either involve a slanderous imputation in themselves or upon which the com- ment bases imputations or inferences injurious to the plaintifE, it is, I think, settled law that the defence of fair comment fails, unless the com- ment is truthful in regard to its allegation or assumption of such facts." SECT. 146j FAIR COMMENT. 481 Comment or criticism is essentially a statement of opinion as to tlic estimate to be formed of a man's charaoter or actions. Being therefore a mere matter of oinnion, and so incapable of definite proof, he who expresses it is not called upon by the law to justify it as being true, but is jDrivileged to express it, ■ ,' even though others disagree with it, provided that it is fair and honest. Thus, it is comment to say that a certain act done by the plaintiff is unwise or absurd; but it is an un- l^rivileged statement of fact to say that ho committed the act so criticised. 3 . In view of the distinction thus drawn between comment Fotto. of and matter of fact, and in view of the circumstance that comment, comment and faot are so frequently combined in the same statement, the plea of fair comment is usually so formulated as to justify at the same time the statements of fact so in- cluded in the allegations complained of. The usual form of such a plea is that " in so far as the statements complained of axe statements of fact they are true in substance and in fact, and in so far as they consist of comment tliej- are fair comment on a matter of public interest." This in reality is a plea of justification as well as a plea of fair oomniont, and is sufficient without any separate plea of justification to cover all statements and inferences of fact which can be proved to be true, as well as fair comment on the facts so stated or inf erred. ^ 4. If a statement of fact is itseK privileged, and the subiect- Comment and , • , • , 1 J. i. ■ privileged matter is one which is open to comment, the plea of fair statements comment is not excluded by the circumstance that the °^^*"*- statement of fact on which the comment proceeds is erroneous. For example, he who comments on the statement contained in the judgment of a Court of Justice or in a parliamentarj- 5 It is true that in Digby v. Financial News, Limited, (1907) 1 K. B. 502, a plea in the above form was held to be a plea of fair comment exclusively, and not a plea of justification; but in that case no de- famatory statements of fact were made by the defendant and no plea of justification was required. The facts commented on were supplied by the plaintiff himsidf and not alleged by the defendant. See Peter Walker ^ Son, Limited v. Hodgson, (1909) 1 K. B. 239. 5. 31 482 DEFAMATION. [chap. XIV. Comment must appear to be such on its face. What matters may be com- mented on. Matters of public interest. paper may plead fair comment, although the statements are mistaken. 6 5. It is essential to the plea of fair comment that the defamatory matter must appear on the face of it to be a comment and not a statement of fact. If the statement is ambiguous in tliis respect, it must be justified. To state bai^ely that the plaintiff has been guilty of negligence or incompetence in some public office held by him must bo justified as a statement of fact, even tbough intended as a comment upon facts. To come within a plea of fair com- ment the facts on which the comment is based must be stated or referred to, and the inference of negligence or incompetence must appear as an expression of the defen- dant's opinion on those facts. "Any matter, therefore," says Fletcher Moulton, L. J., in Runt v. Star Neivspaper Co.,'' "which does not indicate with a reasonable clearness that it purports to be comment and not statement of fact, cannot be protected by the plea of fair comment." 6. The right of privileged comment is limited to certain matters. The right of unprivileged comment is universal; there is full liberty to criticise all men and things, public and private, provided that the criticism is true. But it is only in a limited class of cases that there is any right to express one's own opinion honestly and fearlessly regardless of whether others can be induced to agree with it or not. The cases in which this right of privileged comment exists may be divided into two classes — namely, (1) matters of public interest; and (2) matters which, although of no public interest, have been submitted to criticism by the persons concerned. (a) Matters of public interest : for example, the adminis- tration of justice, the affairs of Parliament, the conduct of the executive Government and of public servants, the mode in which local authorities and other public bodies perform their functions, the management of public hospitals and 6 Mangena v. Wright, (1909) 2 K. B. 958. ' (1908) 2 K. B. p. 320. SKCT. 14«] FAIR COMMENT. 4^3 other public institutions, tlio conduct of public worship in tlie Ohui'ch of England. It maJies no difference that the public interest of the matter in question is limited to a pai-ticulai- locality, instead of extending throughout the i-ealm. That which is primarily of public interest to the citizens of Manchester is indirectly of publi(> interest to all England. s ^ (6) Matters submitted to piiblic criticism by the persons Matters concerned. He who voluntarily gi\cs up his right of pri\acy t" pubUo by submitting himself or his deeds to public scrutiny and cntioism. judgment must submit to the exercise of a right of public oomment. Tliis right, therefore, extends to books and every form of published literature, works of art publicly exhibited, and public musical or dramatic performances. So also with any form of appeal to the public, such as adver- tisements, circulars, or f)ublic speeches. ^'^ 7. A man's moral character is not a permissible subject of Comment II- 111 °^ moral atlverse comment, and tins is t-o even though the person so character, attacked occupies some public position which makes his char- acter a matter of public interest. He who says or suggests that a person is dishonest, corrupt, immoral, untruthful, inspired by base and sordid motives, must justify his accusa- tion by proving it to be true. It is pri\'ileged fair comment to accuse a man of follj^ but not to accuse him of vice; of want of dignity, but not of want of honesty; of incapacity, ■* Purcell V. Sowler (1877), 2 O. P. D. p. 218; Cox v. Fcciieij (1863), i F. & F. p. 20. ■' The following ai-e examples of matters of public interest: Hen- ivood V. Sarrison (1872), L. R. 7 O. P. 606 (report of Board of Admi- ralty on the plana of a naval architect); Wason v. Walter (1868), L. E. 4 Q. B. 73 (petition to Parliament for removal of a judge); Davis v. Duncan (1874), L. R. 9 O. P. 3% (conduct of a meeting assembled to heai- election address); Sibbins v. Lee (1864), 4 F. & F. 243 (conduct of magistrates) ; Purcell v. Sowler (1878), 2 O. P. D. 215 (administration of the poor law); Kelly v. Tinling (1865), L. R. 1 Q. B. 699 (conduct of public worship). In South Hetton Coal Co. v. N. Eastern News Asso- ciation, (1894) 1 Q. B. 133, it was held by the Court of Appeal that the sanitary condition of the cottages provided by a ooUiery company for its workmen was a matter of public interest, comment on which was privileged. See also Joynt v. Cycle Trade Publishing Co., (1904) 2 K. B. 292. 10 Campbell v. S'pottiswoode (1863), 3 B. cfc S. 769; Merivale v. Carson (1887), 20 Q. B. D. 275; McQuire v. Western Morninff News, (1903) •2 K B. 100; Thomas v. Bradbury, Agnew S; Co., (1906) 2 K. B. 627. 31(2) 484 DEFAMATION. [CHAP. XIV. but not of corruption; of bad taste, but not of mendaoity. This important limitation upon the right of critioism was established by the decision of the Court of Queen's Bench in Campbell v. Spottiswoode,^^ in which it was held actionable to suggest, however honestly, that the editor of a religious magazine, in advocating a eoheme for missions to the heathen,, was in reality an impostor inspired by motives of pecuniary gain. " I do not assent," says Cockburn, C. J., in his charge to the jury ,12 "that . . . because a man is a public man you are entitled, not only to point out the want of judgment, the want of discretion, the want of wisdom in his conduct, but that you may ascribe to him' corrupt, dishonest, and wicked motives." "A "writer in a public paper," says the same Judge,i3 " may comment on the conduct of public men in the strongest terms; but if he imputes dishonesty, he must be prepared to justify. ... It seems to me that a line must be drawn between hostile criticism on a man's public conduct and the motives by which that conduct may be supposed to be inlluenced; and that you have no right to impute to a man in his conduct as a citizen — ^even though it be op)en to ridicule or disapjjrobation — base, sordid, dishonest, and wicked motives, unless there is so much ground for the imputation that a jury shall be of opinion, not only that you may have honestly entertained some mistaken belief upon the sub- ject, but that your belief is well founded and not without cause." This distinction between comment which does and comment which does not amount to a personal attack upon the moral character of the plaintiff has been recognised by the Court of Appeal in Hunt v. The Star Newspaper CoM and by the House of Lords in Dakhyl v. Laboiichere^^ Such a personal attack, therefore, is to be regarded as a defamatory statement of fact, and not as a mere comment. Accordingly it will not be covered by a plea of fair comment, 11 (1863), 3 B. & S. 769. See also Parmiter v. Coupland (1840), 6 M. & W. 105; Joijnt v. Cycle Trade Publishing- Co., (1904) 2 K. B. 292. 13 32 L. J. Q. B. 192. 13 Ibid. pp. 196, 199. " (1908) 2 K. B. 309. is Ibid. 325, n. SlXT. 146] PAIR COMMENT. 486 unless; it is a correct inference from the facts commented on . It is not a sufficient defence (as in other forms of defamatory comment) that the statement has been honestly, even though erroneously, made as a fair comment on a matter of public interest; but it is a good defence under a plea of fair comment (without any separate pica of justification) that the statement is a correct inference warranted by the facts commented on. "A personal attack," says Lord Atkinson in Daldn/l v. Labouchere,^^ " may form part of a fair comment upon gi\en facts truly stated, if it be warranted by those facts; in other words, if it be a reasonable inference from those facts. Whether the personal attack in any given case can reason- ably be inferred from the truly stated facts upon which it purports to be a comment is a matter of \a.^\ for the deter- mination of the Judge before whom tire case is tried; but if he should rule that this inference is capable of being reason- ably drawn, it is for the jury to determine whether in tliat particular case it ought to be drawn." " Comment," says Fletcher Moulton, L. J., in Runt v. The Star Neivspaper Co.,^'^ "must not convey imputations of an evil sort, except so far as the facts truly stated warrant the imputation. . A libellous imputation is not wai'ranted by the facts unless the jury hold that it is a conclusion which ought to be drawn from those facts. Any other interpretation would amount to saying that where facts were only sufficient to raise a suspicion of a criminal or disgraceful motive, a writer might allege such motive as a fact and protect himself under the plea of fair comment. No such latitude is allowed by English law." 8. The comment must be fair, otherwise it will be action- Comment _ , , must be tair. able as unprivileged. This does not mean that the comment must be true; true comment needs no privilege any more than any other true statement. " The jury," says Collins, M. E., in McQuire v. Western Morning Neivs,^^ "have no rigbt to substitute their own opinion of the literary merits 16 (1908) 2 K. B. p. 329. '^ Ibid. p. 320. i« (1903) 2 K. B. p. 109. i86 DEFAMATION. [CHAP. XIV. of the work for that of the critic, or try the fairness of the criticism by any such istandard. Fair, therefore, in this oollocation certainly does not mean that which the ordinary man, ' the man on the Clapham omnibus,' as Lord Bowen phrased it, the juryman common or special, would think a coirect appreciation of the work; and it is of the hig'ueat importance to the communitj' that the critic should be saved from any such 2>08sibility." 9. Fair comment means comment honestly believed to be true, and not inspired by any malicious motive. ^^ Unfair- news means the presence of maliae. The absence of any genuine belief in the truth of the comment is conclusive proof of malice, for no man can have a proper motive for making defamatory statements which he docs not belloxe to be justified. E\en a comment genuinely believed to be true, however, Avill be actionable as unfair if it is inspired by any imiDropcr and malicious motive. This being the meaning of unfairness, it seems clear that tile defence of fair comment is simply a particular instance of qualified privilege. Every man has a qualified privilege to comment on matters of public interest or submitted to public criticism, and this defence may be rebutted in the usual way by proof that the privilege has been maliciously abused. ^o Immoderate iQ. It is sometimos Said that comment is also to^ be classed a^ unfair, oven in the absence of any dishonesty or malice, if the critic fails to show a certain degree of moderation, judgment, and competence. -^ It is said that there is a certain measure of violence or perverseness on the part of a critic which will itself condemn his criticism as unfair and actionable. Notwithstanding the dicta to this effect, it is submitted that this is not so. The distinction thus sug- i!" Thonms v. Bi-adburi/, Ji/new cj- Co., (19%) 2 K. B. 627; McQiiire V. Western Morniiiii Sews, (1903) 2 K. E. 100. -1 The true nature and meaning- of the defence of fair comment was long- obscured by certain unfortunate dicta in the case of Meriva'r v. Carson (1887), 20 Q. B. D. 275, but the law has been once more put on a sound and intelligible basis by the decisions of the Court of Appe.il in the two cases cited in the preceding note. See an article by Mr. F. 1?. Y. EadeUffc in 23 L. Q. R. 97. 31 WasoH V. IValter (1868), L. R. 4 Q. B. p. 96. SECT. l4Gj I'ATK COMMKNT. 487 gested is merely one of degree, which it would be impossible to reduoo to definiteuess. To apply any such test would moan that any jury would bo at liberty to iind a comment unfair simply because they did not agree witli it and thought it unduly severe. It is submitted that the violence, exaggera- tion, or perverscness of a critic has not in itself any operation in making his criticism unfair, but is merely evidence that the criticism is not honost or that it is inspired by malice . 11. It is sometimes said that comment is unfair if it is Irrelevant irrelevant — i.c . , if it includes defamatory references to mattel^s which are not in law a proper subject of criticism (c-g., literary criticism which attacks tire moral character of the author instead of his competenoe) . In such a case, however, the ground of liability is not strictly that the comment is unfair, and the critic's privilege abused and forfeited; but that no privilege to comment on such a matter has ever existed. So also it is sometimes said that a comment is unfair if it is not pure comment, but is mixed with inaccurate and defamatory statements of fact. Here also the logioid view is not that the privilege has been abused and forfeited, but that it does not exist. Unfairness in the proper sense is always a question of fact for the jury; but whether a comment is relevant (i.e., whether it is directed to matters capable of being the subject of public comment) is a ques- tion of law for the Judge. So also the distinction between comment and statements of fact is a question of law for the Judge, not of faot for the jury, and therefore must not be confounded with the question of fairness, which is solely for the jury. 12. The burden of proving tliat a comment is unfair is on B>irdeD the plaintiff who complains of it. Here, as in other cases of qualified privilege, it is for the plaintiff to rebut the defence of privilege by proving that it was abused and forfeitetl.-- 13. Whether the comment is fair is a question of fact for fairness a the jury. But it is for the Judge to decide in the first place the jury. (1) whether the subject is one which is in law open to com- 22 McQuire v. Jfcstem iMoniii/r/ Xeirx, (1903) 2 K. B. 100. 488 DEFAMATION. [CHAP. XIV. nient, and (2) whether there is any reasonable evidence to gio to the jury that the comment is unfair. ^^ There aa'o, tlierefore, two distinct checks on the action of a jury in the case of fair comment. In the first place, they are not at liberty to find for the plaintiff on the ground that in their opinion the matter was not a fit one for public comment; that is a question of law for the Judge. In the second place, they ai'e not at liberty to find for the plaintiff on the ground tliat the comment is unfair, unless the Judge is first satis- fied that there is sufficient evidenoe, extrinsic or intrinsic, of unfairness on wliich suoh a verdict could be found. reports. § 147. Privileged Reports. Judicial J Fair and accurate reports, whether in a newspaper or elsewhere, of the public proceedings of any Court of Justice are conditionally privileged by the common law. The privilege extends to all Courts, whether superior or inferior, and whether Courts of record or not. It makes no differ- ence whether the proceedings are preliminary or final, or whether they are taken ex parte or otherwise. The privilege is not excluded by the fact that the matter was one over which the Court had no jurisdiction. ^ It seems, however, that if the Court has prohibited the jDublication of its pro- ceedings, no privilege attaches bo a publication in violation of that prohibition. 2 As has been already indicated, ^ a iieicspiipcr report of judicial iDrooeedings is the subject of a statutory privilege, probably absolute, if it fulfils the requirements of section 3 of the Law of Libel Amendment Act, 1888. These con- ditions are (a) that the report is fair and accurate, (b) that it is contemporaneous with the proceedings, (c) that the pro- ceedings are public, and (d) that the matter published is not 23 3IcQuire v. Western Horning News, (1903) 2 K. B. 100. 1 See, on the whole matter, VsUl v. Bales (1878), 3 C. P. D. 319; Kimber v. Press Association, (1893) 1 Q. B. 65; Macdourjall v. Knight (1889), 14 A. C. 194. Cf. Allbiitt v. General Council of Mcrlical Educa- tion (1889), 23 Q. B. D. 400. 2 gee Odgers on Libel, p. 314, 5th ed. 3 Supra, s. 142 (5). SKCr. 147] PKI\'ILEGED REPORTS. ^89 of an obscene or blasphemous nature. If any of those con- ditions ai-e absent, the report is subject to the common-law rule of qualified privilege only. 2. Fair and accurate reports of parliamentary debates aie Parliamen- conditionally privileged by the common laAv.* aryrepors. 3. At common law tlie reports, ^\hetlier in a newspaper or Reports elsewhere, of the proceedings of public meetings possess no meetings, privilege. 5 It is now provided, however, by section 4 of tlie Law of Libel Amendment Act, 1888, that fair and accurate reports in a newspaper of the proceedings of any public meeting, or of any of the other kinds of meetings referred to in that section, shall be oooiditionally j^rivileged, provided that the matter published is of public concern and the publi- cation of it is for the public benefit. ^ 4. The publication, whether in a newspaper or elsewhere, Publication of correct copies of or extracts from any judicial or oflicial of public records. 1 IFason v. Walter (1868), L. R. 4 Q. B. 73. ^ Puj-cell \. Sowler (1877), 2 O. P. D. 215. 6 51 & 52 Vict. c. 64, a. 4: "A fair and accurate report published in any newspaper of the proceeding's of a, public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board or local authority formed or constituted under the provisions of any Act of Parliament, or of any committee appointed by any of the above-mentioned bodies, or of any meeting of any commissioners authorised to act by Letters Patent, Aot of Parliament, warrant under the Royal Sign Manual, or other lawful warrant or authority, select committees of either House of Parliament, Justices of the Peace in Quarter Sessions assembled for administrative or deliberative pur- poses, and the publication at the request of any Government office or department, officer of State, commissioner of police, or chief constable, of any notice or report issued by them for the information of the public, shall be privileged, unless it shall be proved that such report or publica- cation was published or made maliciously: Provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter: Provided also that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in tho newspaper in which the report or other publication complained of ap- peared a reasonable letter or statement by way of contradiction or explanation of such report or other publication, and has refused or neglected to insert the same: Provided further that nothing in this ' section contained shall be deemed or construed to limit or abridge any privilege now by law existing, or to protect the publication of any matter not of public concern and the publication of which is not for the public benefit. For the purposes of this section, ' public meeting ' shall i mean any meeting bond fide and lawfully held for a lawful purpose, and ( for the furtherance or discussion of any matter of public concern, whether j the admission thereto be general or restricted." 490 DEFAMATION. [chap. XIV. records which arc by statute open to public inspection is the subject of oonditional privilege at common law.'' Thus a trade-protection journal is entitled to publish extracts from the public registers of bills of sale, County Court judgment3, or appointments of receivers under the Companies Act, and is not responsible, in the absence of malioe, for any error in the register or for any defamatory suggestion that may be contained in the matter so extracted. Slander not actionable without proof of damage. Remoteness of damaafe. Damage due to repetition of slander. § 148. Slander and Special Damage. 1 . Libel is in lall cases actionable per se ; but slander is not actionable without proof of special damage, save in certain exceptional oases. 2 . The special damage required in actions for slander must bo the loss of some definite material advantage ; it must not consist merely in the loss of reputation itself.^ A loss of the voluntary hospitality of friends is sufficient, however, ^ and so also in all probability is a resulting separation between husband and wife.^ 3. The special damage must not be too remote. Thus, in Speake v. Hughes'^ the plaintiff, a barman, -was dism.issed by his employer because of a statement by the defendant that the plaintiff had removed iixmi premisies occupied by him without having paid his rent; and it was field that no action lay, for the special damage proved was too remote. So in Allsop v. AUsop^ illness resulting from the mental trouble produced bj" slander was held too remote.'^ '4. In particular special damage is too remote if it is due not to the original slander, but to a repetition of it by other 7 Fleming v. Newton (1848), 1 H. L. C. 363; Searles v. Scarlett, (1892) 2 Q. B. 56; Joties v. Finanekd Times (1909), 25 T. L. R. 677; Rei^ v. Perrif (1895), 64 L. J. Q. B. 566. WiUimns v. Smith (1888), 22 Q. B. D. 134, is of doubtful authority. 1 Roberts v. Roberts (1864), 5 B. & S. 384. 2 Davies v. Solomon (1871), L. B. 7 Q. B. 112; Jloore v. Meaffher (1807), 1 Taunt. 39. 3 Lynch v. Kniqht (1861), 9 H. L. C. 577. 1 (1904) 1 K. B. 138. » (1860), 5 H. & N. 534. 6 See also Zijnch v. Knirjht (18G1), 9 H. L. C. 577. SECT. 148] SLANDER AND Sl'ECIAL DAMAGE. 491 poisons.' Therefore it is in ordinary cases insufRoient for the plaintiff to prove that since the publication of the slander his business has fallen away; because such a result must have been due not to the original slander, but to the subso(]uont propagation of it by means of repetition.^ But it is othor- wiso if the original slander is published to so many persons that the diminution of tlic plaintiff's business may be reason- ably attributed to it rather than to subsequent repetition.^ 5. There are two exceptions to the rule that damage caused by the repetition of a slander is too romotLv-(l) when tlic oidginal statement is made to a person who is under a legul or moral duty to ixspeat it;i<' (2) when repetition is authorised or intended by the defendant, for it is a general rule that no result which is intended can b;^ too remote. U. It seems to be tin- better opinion that when specia] Measure of damage is proved, damages can be reoo\"erod not merely for it, but for the injury to the plaintiff's reputation generally- that is to say, compensation is not limited to the amount ol' actual loss proved, but proof of some actual loss is an essential foundation for a claim of general damas-es for slander. ^^ § 149. Slander Actionable per se. 1 . In the following cases slander is actionable per se witli- Cases of MiftTlliAl* out proof of special damage: — actionable damages. (ff) An imputation that the plaintiff has committed a criminal offence; (6) An imputation that the plaintiff suffers from an ex- isting contagious venereal disease;^ (c) An imputation of unchastity against a woman; (d] An imputation against the jjlaintiff in the way of his business or offioe. 7 Ward V. TFee/cs (18S0), 7 Biag. 211. 8 Dixon V. Smith (1860), 5 H. & N. 450. 9 See Ratdife v. Evum, (1892) 2 Q. B. 524. 10 Berrij v. Hundley (1»87), 16 L. T. (N. S.) 263. " See Dixon v. Smith (1860), 5 H. & N. p. 453. 1 Bloodicorlh v. O-ray (18'64), 7 M. & Or. 334. per se. 492 DEFAMATION. [chap. XIV. Accusation of crime. Accusation of unejiastity. Imputations in respect of trade or office. 2. An imputation of a criminar offenoe to be actionable per se must amount to a direct charge, and must not be a mexe suggestion or statement of suspicion. ^ The crime charged need not be indictable; but it must not be an offence punishable by fine merely. ^ ' 3. At oommon law a verbal imputation of unohastity is not actionable per se, but it is now provided by the Slander of Women Act, 1891, that "words spoken and published . which impute unohastity or adultery tiO any woman or gii'l shall not require special damage to render them actionable." 4 . Any defamatory imputation upon a man in the way of his profession, business, pr office is actionable per se : for example, a charge of insolvency against a trader,* of incom- petence against a surgeon, of ignoranoe against a lawyer. A defamatory charge, however, against a man in respect of a business in which be is no longer engaged, or in respect of an office which he no longer holds, is not actionable per se.° When the plaintiff's office is not one of profit, but one of honour only, such as that of a Justice of the Peace, words spoken of him in that regard, and imputing unfitness or in- competency, are not actionable per se, unless, if true, they would be a ground of deprivation.^ A. charge is not actionable per se merely because it tends to injure the plaintiff in the way of his business or office; it must amount to a charge against him in relation to his business or office. Thus, it is not actionable per se to impute dishonesty to a solicitor, unless he is alleged to be dishonest towards liis clients.''' Nor is it actionable per se to impute adultery to a physician, unless the charge involves a breach of his professional duty towards his patients.* This dis- 2 Simmons v. Mitchell (1880), 6 A. C. 156. 3 Webb V. Beavan (1883), 11 Q. B. D. 609; Ilelhvig v. Mitchell, (1910) 1 K. B. 609. ^ Brown v. Smith (1863), 13 O. B. 596. 5 Hopwood V. Thorn (1849), 8 C. B. 293. ^ .Uexaiider v. Jenkins, (1892) 1 Q. B. 797. Aliterii the Tvords impute dishonesty. Booth v. Arnold, (1855) 1 Q. B. 571. ' Doyley v. Roberts (1837), 3 Bing. N. C. 835; Daunceij v. HoUowai/ (1901) 2 K. B. 441. 8 Ayre v. Craven (1834), 2 A. & E. 2. SECT. 149] SLANDER ACTIONABLE PER SE. 493 tinotiou, however, is uiisatisfaotory; for if tlie natural and probable result of a slander is to injure the plaintiff in his businees, it is difficult to see how it oan be maintained that the slander does not refer to him in the way of his business. The only reason why it injures a solicitor in his business to say that he has defrauded some one who was not bj^ client is because it will probably be inferred from this that he will defraud his clients also.^ 9 See Jones v. Jones, (1916) 1 K. B. 351. 494 CHAPTER XV. DECEIT AND INJURIOUS FALSEHOOD. Two kiiidn of fraud. WiiONGS of fraud or misrepresentation are of two kinds, essentially distinct — (a) tlie wrong of deceiving the plaintiff so that he causes harm bo himself bj- his own mistaken act, (&) the wrong of deceiving other persons so that they by their mistaken acts cause harm to the plaintiff. The first of these injuries may be called, in a narrow and specific sense of the term, the wrong of Deceit; the second has no recognised distinctive title, and in default of a better designation it will here be called the wrong of Injurious Falsehood. We proceed to consider these in the order mentioned. § 150. Deceit. Deceit defined. Deceit by words or conduct. 1. The wrong of deceit consists in the act of making a wilfully false statement with intent that the plaintiff shall act in reliance on it, and with the result that he does so act and suffers harm in oonsequenoe.i 2. The false statement may be made either by words or by conduct. Any conduct designed to deceive another by leading him to believe that a certain fact exists is equivalent in law, as in morals, to a statement in words that that fact does exist. Thus, it is a fraud to obtain goods on credit in Oxford by wearing without right an undergraduate's cap and gown,^ or to take measures for concealing the defects of an article sold.^ 1 Pasley v. Freeman (178'9), 3 T. E. 51; Smith v. Chjidivick (1882), 20 Ch. D. 27; 9 A. C. 187; Derry v. Peek (1889), U A. C. 337. 2 Rex V. Barnard (1837), 7 O. & P. 784. 3 Horsfall v. Thomas (1862), 1 H. & C. p. 99. SECT. 150] DECEIT. 495 3. In order to found an action for deceit the defendant Non- ,1 1 -jL • i. 1 , J i • disclosure is mutit tiave inade a positive laisu statement; a mere passixo not deceit. non-disclo6uix3 of the truth, however deceptive in fact, does not amount to deceit in law. " No mere silence will ground the iietion of deceit."* This rule, however, is subject to the following qualifications: — (rt) The non-disclosure of a part of the truth may make the Exceptions, statement of the residue positively false. It is permissible to tell the whole truth, or to tell none of it, but it is not always possible to tell merely part of it without falling into positive falseliood. " Half the truth," says Lord Chelmsford,'^ " will sometimes amount to a real falsehood." " Every word," says James, L. J.,^ " may be true, but if you leave out something which qualifies it you may make a false statement: for instance, if pretending to set out the report of a surveyor you set out two passiagies in his report, and leave out a third passage which qualifies them, that is an actual misstate- ment." (&) Active concealment of a fact is equivalent to a positix e statement that the fact does not exist. By active conceal- ment is meant ,any act done with intent to prevent a fact from being discovered: for example, to cover over the defects of an article sold, with intent that tliey shall not be discovered by the buyer, has the same effect in law as a statement in words that tiose defects do not exist.'' (c) Possibly if the defendant makes a statement which he believes to be true, and he afterwards discovers that it is false, before it has been acted on by the plaintiff, or if he makes a statement which is true when made but beoomes false to his knowledge before it has been acted on, it is his duty to disclose the truth, and a failure to do so wiU be accounted an action- 4 Arkwriffht v. Newbold (1881), 17 Cli. D. p. 318. 5 Peek V. Ourney (1873), L. R. 6 H. L. p. 392. 6 Arkwright v. Newbold (1861), 17 Oh. U. p. 318. ' Eorsfall v. Thomas (1862), 1 H. & O. 9 J (cannon sold with flaw 7-'- ': concealed by plugging); Schneider v. Heath (1813), 3 Camp. 506 (ship with rotten timbers taken from slipway, and put into water to conceal ■ defects from purchaser). j'f 49H DECEIT AND INJURIOUS FALSEHOOD. [CHAP. XV. able fraud. This, indeed, has never been decided, but it seems in conformity with principle.^ {d) In certain ciases there is a statutory duty of disclosure, the breach of which is an actionable fraud.^ Statement 4. To found an action for the tort of deceit the misrepre- of fact. sentation must be a false stabemant of jact, and not a mei'e broken promise. If the words of the defendant amount to a mere promise, they cannot be the basis of an action of tort, and impose no liability on him unlesis they conform to all the requirements of a valid contract. There is no such thing known to the law as a promise which is not good enough for a contract, but the breach of which is actionable as a tort.^-'^ In the proposition that an action of deceit will Ke only for a statement of fact, the term fact is used to include every- thing except a promise. Thus, a statement of opinion, if wilfully false, is actionable as a bort.^^ Similarly there seems no real reason to doubt tliat an action will lie for a fraudulent misrepresentation of law.^^ g^ also an action of tort will lie for a false representation of intention. An unfulfilled pnowdse to do a thing is actionable as a contract or not at all; a false statement of intention to do a thing maj- be action- able as a tort. Thus, in Edgington v. Fitzmaurice,^^ the directors of a company were held liable for fraud in borrowing money on behalf of the company on a false statem^eat of the purj)ose to wliich the loan was to be applied. " The state of a man's mind," says Bowen, L. J.,^* "is as much a fact as the state of his digestion. "15 8 It is maintained in a dictum of Lord Blackburn in Brownlle v. Campbell (1880), 5 A. C. at p. 950. In Arkwriffht v. NewboU (1881), IT Oh. D. 301, the question is considered and left open by Cotton and James, L. JJ., pp. 325, 329. 3 For example, the Companies (Consolidation) Act, 1908, s. 81. 10 Jorden v. Money (1S54), 5 H. L. C. 185. 11 Anderson v. Pacific Insurance Co. (1872), L. E. 7 0. P. p. 69. 12 See West London Commercial Bank v. Kitson (1884), 13 Q,. B. D. 360; Eaglesfield v. Marquis of Londonderry (1877), i Ch. D. 693; Derry v. Peek (1889), 14 A. O. 337; Beattie v. Lord Ebury (1872), 7 Ch. 777. 13 (1885), 29 Oh. D. 459. li Ibid. p. 483. 15 It is not an actionable fraud, however, for a seller or buyer to obtain an advantageous bargain by falsely stating that he is not pre- pared to take less or give more for the property than a certain sum. SECT. lOOJ DECEIT. 497 5. The Bide in Deny v. Peek. A false statement is not Statement actionable as a tort unless it is wilfully false. Mere negli- wilfully false, gence in the making of false statements is not actionable cither as deceit or as any other kind of tort. This is the anomalous rule established by the House of Lords in the leading case of Deny v. Peefc.i^ Although in almost aU other forms of human action a man is bound to take reason- able caxe not to do harm to others, this duty does not extend to the making of statements on which other persons are intended to act. Derry v. Peek^^ was a case in which the promoters of a company issued a prospectus containing a negligent misrepre- sentation as to the powers of the company, and in reliance on this statement the plaintiff took shares in the company. The promoters were held not liable in damages, on the ground that there was no proof that the error was fraudulent. So in Le Lievre v. GouldP an architeot was held not liable for negligence in giving to a builder erroneous certificates as to the progress of the work, in reliance on which the plaintiff advanced certain moneys to tlie builder, which were lost.^^ 6. When, then, is a statement wilfully false within the Test of wilful meaning of the rule in Derry v. Peek ? The test is the ^ **® °° • existence of a genuine belief in the truth of the statement. It is not necessary for liability that the defendant should have known it to be false; it is sufficient if he did not genuinely and honestly believe it to be true. Every statement is explicitly or implicitly a statement as to the belief of the speaker, and if that belief does not exist the statement is knowingly and wilfully false. " An untrue statement," says Lord BramweU,!^ "as to the truth or falsity of which the man who makes it has no belief is fraudulent ; for in making it he affirms he believes it, which is false." " To prevent In such a case the plaintiff can show no legal damage; he has lost a better bargain, indeed, but he has lost nothing to which he had any legal right. Vernon v. Keys (1810), 12 East, 632. 16 (ISSgj), 14 A. O. 337. " (1893) 1 Q. B. 491. 18 See also Low v. Bouverie, (1891) 3 Ch. 82; Angus v. CUford, (1891) 2 Oh. 449. " Smith V. Chadwich (1864), 9 A. C. p. 203. S. 32 498 DECEIT AND INJURIOUS FALSEHOOD. [CHAP. XV, Ambiguity. Exceptions to rule in Derry V. Peek. Contractual duty. a false statement being fraudulent," says Lord Herscliell,20 " there must, I think, always be an honest belief in its truth." It is sometimes said that it is sufficient for liability that the statement should be made recklessly. The term recklessly, however, must here be taken to be used in a loose sense to indicate the absence of any genuine belief— the presonce of conscious ignorance of the truth of the matter. Reckless- ness, in the proper sense of gross negligence, is no ground of liability. No negligence, however gross, amounts to fraud. Although an absence of reasonable grounds for believing a statement to be true is not in itself a ground of liability, it is important evidence that no suoh belief really exists, and therefore that the defendant is guilty not of negligence, but of fraud. " The ground upon which an alleged belief was founded is a most important test of its reality. "^i If a statement is ambiguous, it must be taken in the sense in which the defendant himself meant it — that is to say, in the sense in which he intended that it should be understood by the plaintiff. It is immaterial that some other sense is more natural, and that the plaintiff understood the statement in that sense and was deceived by it; for in such a case the defendant is guilty of negligence only, and not of fraud. -^ 7. The rule in Derry v. Peefc is subject to the following exceptions: — (a) When there is a contractual relation between the plaintiff and defendant which involves a contractual duty to use care in the making of statements, the rule in Derry v. Peek is excluded. ^3 A person may take on himself by con- tract a duty which the common law does not impose upon him. An architect who misinforms his client as to the nature of the foundations required for a building, or a physician 20 Xierry v. Peek (1889), 14 A. C. p. 374. 21 Ibid. p. 375, per Lord Herschell. 22 Angti-s V. Clifford, (1891) 2 Ch. at p. 472, per Bowen, L. J.; Smith V. Chadwicic (1884), 9 A. C. at p. 201, per Lord Blackburn. There are, indeed, several dicta to the contrary, but they are prior to Derry v. Peek and muat now be treated as. unsound. See, for example, the dictum of Cotton, L. J., in Arhwright v. Newbold (1881), 17 Oh. D. at p. 322. 23 See, for example, l>e la Bere v. Pearson, Ltd., (1908) 1 K. B. 280. SECT. 150] DECEIT. 499 ■who gives erroneous advice to a patient, cannot defend him- self, in an action for breacli of contract, on the ground that the misi'epresentation was not a fraudulent one. It is to be noticed, however, that oven when there is a contractual duty of careful statement, the rule in Derry v Peek is excluded onlj' in favour of the person with whom the contract is made, and not in favour of third persons who ai-e injured by negligent statements made in breach of it. Thus, in Dickson v. Renter's Telegraph Co.-'^ the defendant company negligently addressed and delivered to the plaintiffs a telegram intended for another person, directing a shipment of barley from Valparaiso to England. The plaintiffs, believing that the message was meant for thom, acted in pursuance of it and suffered serious loss. Yet it was held by the Conrt of Appeal that they had no cause of action. The misrepresentation was, indeed, the breach of a con- tractual duty of care, but the contract was made only with the sendei- of the telegram, and as between the recipient and the telegraph company it was res inter alios acta. (&) Every person who purports to act as the agent of Agency. another is deemed in law to have entered into an implied ■contract of warranty of authority with any person -who con- tracts or otherwise deals with him in reliance on his authority. If, therefore, the agent misrepresents the existence or extent of his authority, he is liable in damages for any loss thereby suffered by those who have dealt with him ; the rule in Derry V. Peek being excluded by the existence of a contract implied in law. 25 (c) The rule as to estoppel by representation is not affected Estoppel, by Derry v. Peek, and may in certain cases so operate as to impose liability in damages for a false statement which is not fraudulent. A company, for example, which registers a forged transfer of shares is liable by way of estoppel to a purchaser who buys the shares in reliance on the share-cer- tificate so issued; for the company is estopped from denying 2* (1877), 3 O. P. D. 1. 25 CoUen V. Wright (1857), 8 E. & B. 647; Starkey v. Bank of England, (1903) A. C. 114. 32(2) 500 DECEIT AND INJURIOUS FALSEHOOD. [cHAP. XV- Physical harm. Directors' liability under the Companies Act. Statutory duty. Intent that statement shall be acted on. the truth of that oertifioate, and therefore the title of the plaintiff. 26 {d) The rule in Derry v. Peek does not apply to oa.ses in which physical harm to person or property is caused by dangerous chattels or premises negligently ropr^ented to be safe. Liability may or may not exist in these casee, but the question is governed by different considerations from those which relate to false representations in general. We have already considered the matter under the head of liability for dangerous property. ^^ (e) By section 84 of the Companies (Consolidation) Act, 1908, the rule in Derry v. Peefc has been excluded in the case of negligent false statements contained in a prospectus issued by the promoters or directors of a company. The elaborate provisions of this enactment pertain rather to the law of companies than to that of torts, and need not be here considered . (/) In certain cases a duty of giving correct information is imposed by statute, and in such cases the rule in Derry v. Peefc has no application. Thus in. Dawson d Co . v. Bingley Urban District Council"^ the defendant Council was held liable in damages for inoorreotly marking the situation of a fire-plug, damage thereby resulting to the plaintiff through the inability of the fire-brigade to find the fire-plug in time to extinguish, with promptitude a fire on the plaintiff's premises . 8. A false statement is not actionable, whatever damage may result from acting in reliance on it, unless it was made with intent that the plaintiff should act in reliance on it in the manner in which he did act. He who tells lies is not responsible to the whole world for the consequences of them. The only person entitled to rely on a statement and to act accordingly is he who is intended to rely on it and to act 26 In re Bahia # San Francisco My. Co. (1868), L. R. 3 Q. B. 584. . 2'' Supra, Oh. XII. ; George v. SMvington (18«9), L. E. 5 Ex. 1, foi- example, may or may not be good law, but it is not overruled by Berry.' V. Peelc. See s. 126 (8), above. 28 (1911) 2 K. B. 149. See p. 157, per ParweU, L. J. SECT. 150] DECEIT. 501 upon it by the person making it. All others accept it at theii- own risk, and if they oome to harm, must blame their own credulity only. Thus, in Peelc v. Gurney^^ it was held tliat a person who in reliance on a fraudulent prospectus issued by promoters bought shares in the market and so suffered loss had no cause of action against the promoters: for the purpose of a prospectus is to induce joereons to apply to the company for shares, not to induce them to buy in the market shares already issued. The plaintiff, therefore, had acted in a maimer not intended, and had relied on the false statement for a purpose that was foreign to it.^o 31 It is not neeessaiy that the false statement should be made with intent that any spiecific individual sliould be deceivcrl and act in reliance on it. A representation may be made to the public at large with intent that any member of the public may act on it, and in this case liability will be incurred towards any person so acting. ^2 Nor need there be any intention to cause loss to the plain- tiff; the only necessary intent is that the plaintiff shall be deceived and shall act in a certain way ; and if, as the natural and probable result of so acting, any damage is suffered by him, the defendant is responsible for it, whether he meant that damage to ensue or not. " It is wholly immaterial," says Bowen, L. J., 33 "with what object the lie is told . . . but it is material that the defendant should intend that it should be relied on by the pei'son to whom he makes it." 9. It is not enough, therefore, tliat it is the natural and Apparent probable consequence of the false statement that the plaintiff '° ^ ' will rely and act on it, if this was not the intention of the de- fendant. It would seem on principle, however, that it is 29 (1873), L. K. 6 H. L. 377. 2" A fraudulent prospectus, however, mat/ be intended to be acted on by way of the purchase of shares in the market; it may, for example, be a device to raise the price of the shares. In such a case any member of the public buying shares in the market in reliance on it will have a good cause of action. Andrews v. Moahford, (1896) 1 Q. B. 372. 31 See also Barry v. Oroskey (1861), 2 J. & H. 1; Edgington v. FiU- maurice (1885), 29 Oh. D. pp. 478, 482. 32 Andrews v. Mochford, (1896,) 1 Q. B. 372. 3!> Edgington v. Fitzmaurice (1885^, 29 Ch. D. p. 482. 502 DECEIT AND INJURIOUS FALSEHOOD. [CHAP. XV. Reliance on statement. Negligent reliance. enough if the defendant's apparent intention was that the- plaintiff should act on his statement, whatever his real and concealed intention may have been . If the defendant makes a wilfully false statement which the plaintiff naturally and reasonably believes to be made to him with intent that he shall act in reliance on it in a certain manner, and he does so. act, it would seem right that tho defendant should be estopped from alleging that his apparent was not his real intention. Thus, in Richardson v. Silvester^^ the defendant falsely,, and to serve some purpose of his own tho nature of which does not appear from the report, advertised another person's- farm as to let, and was held liable to the plaintiff who had acted in reliance on the advertisement and incurred expense in inspecting the premises. 10. No action will lie for a false statement unless the plaintiff did in fact rely and act upon it, even if he acted in tho way intended by the defendant and suffered harm in consequence. 35 A mere attempt to deceive is not actionable. Thus, in Horsfall v. Thomas^'' the defendant sold a cannon to the plaintiff, having first concealed a flaw in it by in- serting a plug. The purchaser, howevei', bought the cannon without making any examination of it, and it was held in consequence that the contract had not been obtained by fraud. It is sufficient, however, that the false statement was 07ie of the reasons which induced the plaintiff to act as he did. " If," says Fry, L. J. ,3^ " the false statement of fact actually influenced the plaintiff, the defendants are liable, even though the plaintiff may ha\"e been also influenced by other motives." Nevertheless, if the plaintiff, although he relied on the state- ment, would ha\c acted as he did, even had the statement nol been made, he will have no cause of action. ^s 11. If the statement is actually relied on, it is no defence that the plaintiff was negligent or foolish in doing so, or that he had a full opportunity of discovering the truth for him- ^^ (1873,), L. E. 9 Q. B. 34. 35 Macleay v. Taif, (1906,) A. 0. 24; Nash v. Caltkorpe, (1905) 2 Ch. 237. 36 (1862), 1 H. & C. 90. 3i Edginr/ton v. Fltzmaurice (1885), 29 Ch. D. at p. 485. 3S Macleay v. Tait, (1906) A. C. 24. SECT. l.-)0] DECEIT. 503 self. Eveiy nmn has in law a right to hclio\o and act on all lies lold him by others with intent to deceive him.'^^ 1'^. Bcprescntaiiou,'^ as to CredH. There is one kind of Represen- faise statement which, by reason of an anomalous rule of credit^ '^^ statute law, is no ground of action unless made in writing — namely, a representation as to the credit of a third person. This exception is established by Lord Tenterden's Act,''0 by Lord which it is provided that "no action shall be brought ^™*^'^'^«°''' whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that sucli other person may obtain credit, money, or goods upon [■s/r- ',■*! unless such representation or assurance be made in writing signed by the party to be charged therewith." The purpose of this enactment was to prevent the evasion of the fourth section of the Statute of Frauds (whioh requires ( a guarantee to be in writing) by suing on a verbal guarantee .' in an action of tort instead of contract, and alleging that the defendant had made a false and fraudulent representation as to the credit or financial ability of the dobtor. A wi'iting, therefore, has been made essential for the tort as well as for the contract. i- The signature of an agent is not sufficient, for the Act requires the personal signature of the' defendant himself .*3 This is so even when the defendant is a body corporate — although in such a case no signatm-e except that of an agent is possible. Thus, an incorporated bank is not responsible for a fraudulent representation as to credit made by a manager of one of its branches.** *^ 39 Redfji-are v. Ilurd (1881), 20 Ch. D. 1. Nor is it any defence that the plaintiff's agent knew of the falsity of the statement, if the plaintiff himself did not. Wells v. Smith, (1914) 3 K. B. 722. w 9 Geo. IV. 0. 14, s. 6. *i This is evidently a clerical error in the Act. Sec Lyde v. Barnard, 1 M. & W. p. 115. •12 Lyde v. Barnard (1836), 1 M. & W. p. 114. « Swift V. Jewsbury (1874), L. R. 9 Q. B. 301. i* Kirst V. WeH Riding Union Banking Co., (1901) 2 K. B._56_0. ^•' As to what amounts to a representation as to credit within the meaning of the Act, see Lyde v. Barnard (1836), 1 M. & W. 101, and Bishop V. Balkis Coinolidated Co. (1890), 25 Q. B. D. 512. 504 DECEIT AND INJURIOUS FALSEHOOD. [cHAP. XV. iBJurious falsehood distinguished from deceit. Injurious falsehood defined. Distin- guished from defamation. Illustrations. § 151. Injurious Falsehood. 1 . We proceed now to the donsideratioii of the second form of actionable misrepresentation — namely, that which we have termed Injurious Falsehood. ^ The Avrong of deceit consists, as we ihave seen, in false statements made to the plaintiff liimeelf whereby he is induced to act to his own loss. The wrong of injurious falsehood, on the other hand, consists in false statements made to other persons concerning the plaintiff whereby he suffers loss tlirough the action of those others. The one consists in misrepresentations made to the plaintiff, the other in misrepresentations made concerning him. It may be stated as a general rule that it is an actionable wrong maliciously to make a false statement respecting any person with the result that other persons deceived thereby are induced to act in a manner which causes loss to him. 2. This wrong of injurious falsehood is to be distiuguished not only from the vsrrong of deceit, but also from that of defamation, to which it is analogous, but from which it is distinct. Both in defamation and in injurious falsehood the defendant is liable because he has made a false and hurtful statement respecting the plaintiff; but in one case the state- ment is an attack upon his reputation, and in the other it is not. A statement which injures the plaintiff in his repu- tation is governed by the very stringent rules of libel and slander, but a statement wliich injures him only by mis- leading other persons into action that is detrimental to him falls within the more lenient rule of liability which ^vc are now consider iag. 2 3 . The following cases illustrate the nature of this form of injury. In Ratcliffe v. Evans^ the defendant was held liable in damages for having falsely and maliciously published in a newspaper a statement that the plaintiff had ceased to carry on business, in consequence of which statement the plaintiff's trade fell off. Bowen, L. J., says:* " That an action will lie 1 8t(pra, p. 494. 2 Mdlachy v. Soper (1836), 3 Bing. N. O. 371; Ratcliffe v. (1892) 2 Q. B. 524; White v. Mellin, (1895) A. C. 154. 3 (1892) 2 Q. B. 524. * Jbid. p. 527. Evans, SECT. 151] INJURIOUS FALSEHOOD. 505 for written or oral falsehoods not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce and where they do produce actual damage, is established law." So in Hiding v. Smith^ an action was held to lie against a person who caused loss of custom to the plaintiff by falsely slandering the character of his wife, who assisted him in his business. So in Casey v. Arnott^ an action was brought for the false statement that the plaintiff's ship was unsea- worthy, in consequence of which statement the crew refused to go to sea in her. 4. An important variety of this species of injury is that Slander of known as slander of title — namely, a false and malicious denial of the plaintiff's title to property: as, for instance, when a sale by auction is defeated or prejudiced by an adverse claim made to the property by the defendant, or when the plaintiff's trade is affected by a false charge that the goods offered by him for sale are an infringement of a patent or copyright.'' 0. Another example of the wrong of injurious falsehood is Slander a false and malicious depredation of the quality of the mer- " chandise manufactured and sold by the plaintiff .^ No action , however, will lie for any statement, however false or mali- cious, which is nothing more than a statement by one trader that his goO'ds are better than those of a rival. This is a special exception to the general rule of liability for injurious falsehood — an exception established to prevent traders from using litigation as a means of advertisement.^ It is other- wise, however, with a specific allegation of some defect in 5 (1876), 1 Ex. D. 91. 6 (1876), 2 C. P. D. 24. 7 Smith V. Spooner (1810), 3 Taunt. 246; Malachy v. Soper (1836), 3 Bing. N. C. 371 ; Pi^ V. Donovan (1813), 1 M. & S . 639 ; Green V. Button, (1835), 2 O. M. & R. 707; Stewart v. Young (1870), L. R. 5 C. P. 122; Halsey v. Brotherhood (1882), 19 Oi. D. 386; Wren v. Weild (1869), L. R. 4 Q. B. 730; Pater v. Baher (1847), 3 O. B. 831. 8 White V. Mellin, (1895) A. O. 154; Linotype Co. v. British Empire Type-setting Co. (1899), 81 L. T. 331 ; Aloott v. Millar's Karri Forests, Ltd. (1905), 91 L. T. 722. 9 White V. Mellin, (1895) A. O. 154; HubbuoTc # Sons v. Wilkinson, (1899) 1 Q. B. 86; Evan» v. Harlow (1844), 5 Q. B. 624; Young v. Macrae (1862), 3 B. & S. 264. 506 DECKIT AND INJURIOUS FALSEHOOD. [CHAP. XV. Misleading trade descriptions. Conditions of liability. Malice. the plaintiff's goods, even though mado by a rival with the view ot promoting the sale of his own.^o 6. The most important examj)lc of the -wrong of injurious falsehood is the use of fraudulent or misleading trade namee, marks, or descriptions whereby the defendant induces the public to believe that his merchandise or business is really that of the plaintiff, a rival trader. This particular form of injurious falsehood, however, is so far governed by special rules of its own that it is advisable to treat it separately, and it will bo considered in the next suooecding section. 7. In order to maintain an action for slander of title or other injurious falsehood it is necessary for the plaintiff to prove (1) that the statement was untrue, (2) that it has been the cause of actual damage, ^^ and (3) that it was published maliciously. " I am of opinion," says Lord Davey in Royal Balcing Potvder Co. v. Wright, Crossley d Co.}^ "that this is not an action for libel or defamation of character. I think it can only be mainta,ined as an action for what is called slander of title — i.e., an action on the case for mali- ciously damag:ing tlie plaintiffs in their trade by denying their title to the use of a certain label, and threatening to sue theii- customers. To support such an action it is neces- sary' for the plaintiff to prove (1) that the statements com- plained of were untrue; (2) that they were made malicious^ _ — i.e., without just cause or excuse; (3) that the plaintiffs had suffered special damage thereby." It is not very clear, however, what is meant by the term malice in this connection. Lord Davey in the passage already cited defines it as meaning the absence of just cause or excuse, but there is no authority as to what amounts to just cause or excuse. It is obvious that if the statement is wilfully false it must be malicious, whatever meaning we attach, to that ambiguous term; but the question remains unsettled how far, if at all, a person is liable for doing harm by means of a 1° Alcott V. Maiar's Karri Forests, Ltd. (1905), 91 L. T. 722. 11 White V. MelUn, (1895) A. O. 154; Barrett v. .Lssoctntcd Seivs- papers. Limited (1907), 23 T. L. E,. 666. 12 (1901), 18 Pat. Cas. Rep. at p. 99. SECT. 152] DECEPTIVE TKAUE NAM i;s. 507 statoiiiout which ho honestly holioves to be true. Does his liability then depend on the nioti\e with Avliich the statement is made, or on the existence of some sufficient occasion of duty or intei'est for the making of it, or on the existence of reasonable and p-obable cause for believing it to be true 'i The earlier cases show a tendency to import into the law of injurious falsehood the same distinction between privileged and unprivileged occasions as exists iu the law of defama- tion. i3ii 152. Deceptive Trade Names, Marks, and Descriptions. 1 . To sell merchandise or carry on business under such a The wrong of name, mark, description, or otherwise in such a manner as P*^^'"?" ■ to mislead the public into believing that the merchandise or business is that of another person is a wrong actionable at the suit of that other person. This form of injury is commonly, though awkwardly, termed that of pa.'^svig off one's goods or business as the goods or business of another. It is, as we ha\e said, merely a specialised variety of the wrong of injurious falsehood. The law on this matter is designed to protect traders against that form of unfair competition which consist.^ in acquiring for oneself, by means of false and misleading devices, the benefit of the reputation already achieved by rival traders. 2. The wrong of j^assing off assumes many forms, of which Species of the following are the most important: — iswrong-. (fl) .4. direct statement that the merchandise or business of the defendant is that of the plaintiff. Thus, it is an action- able wrong to seek to sell a publication by falsely putting the name of a well-known author on the title-page. ^ 13 See the cases cited, supra, s. 151 (4), n. 7. I'' Under the Patents and Designs Act, 1907, a. 36, it is a tort to came loss to any one by making threats of legal proceedings in respect of alleged infringements of patent rights, unless the allegations of infringe- ment are true or the proceedings so threatened are commenced and prosecuted with due diligence. 1 Lord Byron v. Johnston (1816), 2 Mer. 29. As to the unauthorised ii^c of a person's name for other purposes, see Dockrell v. Dovgall (1>S99), 80 L. T. 556. 608 DECEIT AND INJURIOUS FALSEHOOD. [CHAP. XV. (b) Trading under a name so closely resembling that of the plaintijf as to be mistaken for it bij the public. Thus, in Rendriks v. Montague^ the Universal Life Assurance Society obtained an injunction preventing a company subsequently incorporated from carrying on business under the name of the Universe Life Assurance Association. 3 (c) Selling goods under a trade name already appropriided for goods of that kind by the plaintiff, or under any nanie ■•^o similar thereto as to be tnistaken for itA A trade name means a name under which goods are sold or made by a certain person, and which by established usage has become known to the public as indicating that those goods are the goods of that person. A trade name is opposed to a merely descriptive name — namely, one under which goods are sold, but which indicates merely their nature, and not that they arc the merchandise of any particular person. (d) Selling goods tuith the trade mark of the plaintiff or any deceptive imitation attached thereto. A trade mark is at common law any mark habitually attached by a trader to goods manufactured or sold by him in order to indicate that they are his merchandise, and by established usage known to the public as possessing that significance. At common law there is no difference between the law of trade names and that of trade marks. A trade mark is an identifying sign attached to goods, and a trade name is an identifying name under which the goods are sold; but each is at common law pro- tected by exactly the same rule — namely, that no trader must by his use of any name, mark, description, or in any other way pass off his goods as those of another .^ The statute law as to the infringement of registered trade marks does not 2 (1881), 17 Oh. D. 638. ^ See also Manchester Brewery Go. v. North Cheshire oon v. Currle (1872), L. R. 5 H. L. 608 ; Powell v., Birming- ham Vinegar Brewery Co., (1896) 2 Ch. 54; Montgomery v. Thompson, (1891) A. O. 217; Massam v. Thorley's Cattle Food Co. (1880), 14 Ch. D. 748; British Vacuum Cleaner Co. v. New Vacuum Cleaner Co., (1907) 2 Ch. 312. 5 MilUngton v. Fox (1838), 3 My. & Or. 338. SECT. 152] DECEPTIVE TRADE NAMES. 509 exclude or supersede this principle o£ the common law. Common-law actions for passing off and statutory actions for infringement are concurrent remedies, and the law as to each remains independent of that as to the other. ^ (e) Imitating the get-itp or appearance of the, plaintiffs goods so as to deceive the public. When there is anything so characteristic in the get-up or appearance of the plaintiff's goods that it identifies those goods as the merchandise of the plaintiff, any deceptive adoption or imitation of that get-up or appearance is subject to the same rules as the deceptive adoption or imitation of his trade name or trade mark.'^ 3 . It is not necessary in an action for passing off to prove Fraudulent fraud — that is to say, an intent to deceive. It is sufficient in ^oessaiT all cases to prove that the practice complained of is calculated (that is to say, likely) to deceive. At common law, indeed, it was necessary to prove an actual fraudulent intention .^ In equity, however, it was first established in Millington v. Fox^ that this is not so, and that it is an actionable wrong to do anything which to the knowledge of the defendant will in fact deceive the public, even though such deception is not desired or intended. To put the matter in another way, it is a sufficient fraud knowingly to continue any practice the actual effect of whicnis^so to deceive the public as to appropriate to oneself the trade of a rival. Since Millington V. Fox this principle has been repeatedly approved and adopted, and has now superseded the narrower doctrine of the common law.^-" 6 Trade Marks Act, 1905, s. 45: "Nothing in this Act contained shall be deemed to afEect rights of action against any person for passing ofi gooda as those of another person or the remedies in respect thereof." '< Massam v. Thorley's Cattle Food Co. (1880), 14 Oh. D. 748; Wein- garten v. Bayer (1905), 92 L. T. 511; Payton | Co. v. Snelling ^ Co., Ltd., (1901) A. O. SOS; William Edge ^ Sons, Ltd. v. William NicolU # Sons. Ltd., (1911) A. O. 693. 8 Crawshay v. Thompson (1842), 4 M. & G. 357. 9 (1838), 3 My. & Or. 338. 10 Singer Machine Manujaoturers v. Wilson (1877), 3 A. C. p. 391, per Lord Cfeiirns; Cellular Clothing Co. v. Maxton, (1899) A. O. p. 334, per Lord Halsbury; Spalding v. A. W. Gamage, Ltd. (1915), 84 L. J. Oh. 449, per Lord Parker. JlO DECEIT AND INJURIOUS FALSEHOOD. [CHAP. XV. Actual deception or damage not necessary. Remedies. Descriptive name may become a trade name. 4. Nor is it necessary even at common law to prove any actual deception or actual resulting damage.!^ It is sufficient to prove that the practice complained of is of such, a nature tlint it is likely in the ordinary course of business to deceive the public. 1- This is sufficient for an injunction in equity and even for nominal damages at common law. In the common form of statement that the practice must be calcu- lated to deceive, the word calculated means, not necessarily ijitcnded, but merely likely. There need be no deception, actual or probable, of the immediate purchasers of the goods. It is sufhciont if the ultimate deception of the public is probable: as when the wholesale dealer puts into the hands of the retail dealer goods so marked, named, or got up as to be likely or intended to be used as an instrument of public deception. i'^ In considering whether deception is probable account is to be taken not of the expert purchaser, but of the ordinarj' ignorant and unwary member of the public. ^^ 5 . The remedies of the plaintiff in an action for passing off are (1) an injunction; and (2) either damages or an account of profits, at the plaintiff's option . But no damages or account of profits will be granted in respect of innocent user before actual notice of the plaintiifs right. In this respect the right of a trader to bo protected against deceptive competition is not like a right of property, an infringement of which, however innocent, will give rise to an action for damages. ^^ 6. A name originalh" merely descriptive, and therefore ptiblici juris, may by exclusive use in connection with the plaintiff's goods acquire a secondary sense as the trade name of those goods, and will then become subject to the ordinary rule as to trade names ; so that the use of it by other persons ceases to be publici juris, and is actionable unless they take sufficient precautions to prevent deception. 11 Blofeld V. Pmjne (1833), 4 B. & Ad. 410. 12 Meddaway v. Bentliam Hemp Spinning Co., (1892) 2 Q. B. p. 644, per Lindley, L. J. 13 Lever v. Goodwin (1887), 38 Ch. D. 1. 1* Singer Manufaotwring Co. v. Loog (1882), 8 A. 0. p. 18, per Lord Selbome; Johnston v. Orr Swing (1882), 7 A. C. 219. 15 Edelstein v. Edelstein (1863), 1 De G. J. & S. 185; Slazenger # Sons V. Spalding, (1910) 1 Oh. 257. SKCT. 152] DECEPTIVE TRADE NAMES. '511 A leading authoritj^ oil this matter is the decision of the J^eddawayo. House of Lords in JReddaway v. Banham.^^ In this case the plaintiffs had for some years been the sole manuf acturei's of material which they called camel-hair belting. The defen- dants commenced the manufacture of the same material, which they sold by the same name -without attempting in any way to distinguish it from the plaintiffs' manufacture. In an action for an injunction the defence was that the nami' was not a trade name which oould be appropriated as a monopoly by the plaintiffs, but was merely a descriptive name truly stating the nature of the material, and that since the defendants were entitled to make and sell this material they must also be entitled to sell it by its true and only name. It was found by a jury, however, that the term camel-haii- belting had by long and exclusive association witli the plain- tiffs' manufacture come to mean not merely belting made from camel hair, but belting made by the plaintiffs. It had acquired a secondary sense, and had thereby become a trade name; and it was held by the House of Lords that for this reason it could not be used by other persons, unless they took adequate precautions .against deceiving the public by means of it. Similarly, in Montgomery y. Thompson}-'^ a name origi- Montgomery nally mereh' descriptive of goods by referenoo to the localitj^ of their manufacture — namely. Stone Ale — was held to have acquired through long exclusive use the secondary sense of ale brewed in that locality hy the plaintijf, and to be en- titled accordingly to the protection accorded to an ordinarj' trade name. So also in Wotherspoon v. Currie^^ the term "VVotherspoon GlenfieM Starch was held to have become a trade name to which the plaintiffs had an exclusive right, and to be no longer merely descriptive of the locality in which the starch was made, and so publici juris. It is to be remembered, however, that though it is possible for an individual by long and exclusive use thus to acquire 16 (1896) A. O. 199. " (1891) A. O. 217. 18 (1872), L. R. 5 H. L. 508. See also Rey v. Lecouturier, (1908) 2 Oh. 715. 512 DECEIT AND INJURIOUS FALSEHOOD. fcHAP. XV. Fraud uot necessary. Trade name may become merely descriptive. a practical monopoly as a trade name of words which in their primary sense are mierely descriptive and publioi juris, the burden of proving this secondary sense is not a light one. The Courts will not be easily persuaded to sanction such appropriation of words which belong to the common stock of our language. 19 7. In most, if not all, of the cases in which a descriptive name has been protected, as a trade name because of an acquired secondary sense, there has been evidence of actual fraud — evidence not merely that deoeption was caused, but that the name was used in order tiiat the deception might be so caused. It has been suggested that in such cases fraud is essential; that in the absence of fraud every person is at liberty truly to describe his merchandise by reference to its nature or purposes or the locality from which it comes, care- less whether this description deceives the public or not. 2** It seems, however, that this is not so, and tliat fraud is not essential in these cases any more than in the case of a name wliich is primarily a trade name and not descriptive at aU. If a descriptive name has acquired a secondary sense which makes it an instrument of deception wben used simplioiter, it must not be used simpliciter, but only with, adequate pre- cautions to avoid deception, and the resources of the English language are not so scanty as to make this a serious burden-. 8. A name which is originally a trade name may through general use cease to indicate specifically the merchandise of any particular person, and may so become merely descriptive and publici juris.^^ This is the converse of the rule which we have just considered to tlie effect that a descriptive name may by exclusive use okange its character and become a trade name. Thus, Liebig's Extract of Meat no longer 19 Compare, for example, witli the cases already cited the cases oi^ Cellular Clothing Co. v. Maxton, (1899) A. C. 326; Gtvmd Sotel Co. of Caledonia Springs v. Wilson, (1904) A. C. 103; British Vacuum Cleaner Co. V. New Vacuum Cleaner Co., (1907) 2 Ch. 312; Electromobile Co. V. British Electromobile Co. (1907), 24 T. L. E. 192. 2" See, for example. Cellular Clothing Co. v. Maxton, (1899) A. C. p. 339, per Lord Shand. 21 See Powell v. Birmingham Vinegar Co., (1896) 2 Ch. p. 73, per Lindley, L. J. I SECT. 152j DECEPTIVE TRADE NAMliS. 513 means a material prepared by Liebig- or his assigns, "^ nor does Harvey's Sauce mean a sauce sold by the original maker of the article so called. ^3 Unless tlie owner of a trade name is careful to guard it from general use, he will lose it by reason of its resulting reduction to a mere name of de- scription. 9. Even the use by a man of his own personal name to Deceptive describe his own merchandise or business is no exception person's own to the ordinary rule of passing off, and he must take all na™e. reasonable precautions to prevent deception by reason of the similarity of his name to that of some other person whose trade is of earlier establishment than his own.^* In Valen- tine Meat Juice Co. V. Valentine Extract Co.^^ one Valentine was prohibited from using his own name to indicate the goods sold by ihim. " His main defence," says Collins, L. J.,26 " was that so long as he used his own name, which was the real source of the deception, his position could not be impugned. Now, from th.at I absolutely dissent. . It is immaterial whether the deception arises from the use of a name which is, as it happens, the name of the defendant, or whether it arises from the use of any other description which in a sense may be accurate of that which he sells. For if the .article which he sells has come to be known in the market as meaning something made by somebody other than himself, it is impossible for him to sell it simpliciter by that name, although it be his own, without misleading purchasers. "2'' 10. The rule as to passing off is not to be extended to cases Forms of in which there is no appropriation by one man of the trade deception 22 Liebig's Bxtraat of Meat Co. v. Manhury (1867), 17 L. T. N. S. 298. 23 Lazenby v. White (1871), 41 L. J. Oh. 354, u. 21 Teofani, Ltd. v. Teofani, (1913) 2 Oh. 645; Valentine Meat Juice Co. V. Valentine Extract Co. (1900), 83 L. T. 259; Cash, Ltd. v. Joseph Cash (1902), 86 L. T. 211. 25 (1900), 83 L. T. 259. 26 /s/^. p. 271. 27 Burgess v. Burgess (1853), 3 De G. M. & G. 896, and other cases, such as Turton v. Turton (1889), 42 Ch. D. 128, in which the defendant-'! hav« been held entitled to use names identical with or similar to that of the plaintiffs, muat be regarded as merely findings of fact to the eEEect either that there was no sufficient proof of deception, or that sufficient precautions had been taken to prevent deception. s. 33 514 DKCEIT AND INJURIOUS FALSEHOOD. [CHAP. XV. which are not actionable. Infringement of registered trade marks. Trade Marks Act, 1905 reputation or custom of another, but merely some other form of loss or inconvenience caused by the deception of the public. In the absence of actual fraud no action wiU lie in such a case. Thus, in Day v. Broivnrigg^^ the plaintiff and de- fendant occupied adjoining villas, and the defendant changed the name of his residence, and gave it the same name as that of the plaintiff. An injunction to prevent this was refused, although it was proved that inconvenience would result to the plaintiff tlirough the confusion thus caused. Had the paxties been rival traders, the result would have been dif- ferent. Similarly, in Street v. Union Bank of Spain-^ the plaintiff' had long used as his telegraphic address the words Street London, but he failed to obtain an injunction against the defendant bank, which had recently adopted the same address, with resulting confusioai and loss to the plaintiff in his business. Here also there was no passing off, because the businesses of the two parties were entirely distinct in nature. 11 . Actions for the infringement of registered trade marks are closely related to actions for passing off, but constitute a branch of statute law which, like the law of patents and copyrights, is of too special a natmie to admit of adequate treatment in a general treatise on the law of torts. It is advisable, however, to indicate here its essential character- istics, and to set out ^as definitely as may be, without entering into details, its true relation to the common law of passing off. The law as to trade marks is now contained in the Trade Marks Act, 1905. A trade mark validly registered under this Act becomes thereby a species of incorporeal property analogous to a patent or copyright, and conferring upon the proprietor lan exclusive right to the use of it in respect of tlie classes of goods in relation to which it is registered (s. 39). The use of it or of any deceptive imitation of it by any other person is per se an actionable infringement of the statutory monopoly so created. The common law, on the othCT hand, recognised no monopoly or right of property in (1878), 10 Oh. D. 294. 29 (1885), 30 Oh. D. 156. SECT. 152] DECEPTIVE TRADE NAMES. the use of any name, mark, or otliex' trade description. The cause of action in a common-law action for passing off was not the infringement of any monopoly or right of property vested in the plaintiff, but damage done to the plaintiff in his business by the deceptive mode in which the defendant cai-ried on liis own . In other words, at common law the use of the plaintiff's trade mark was never in itself any cause of action, but was merely one of several means by which tlie wrong of deceiving the public to the plaintiff's preju- dioe might be committed. A trade mark is defined in the Act as " a mark used or pix>posed to be used upon or in connecition with goods for the purpose of indicating that they are the goods of the pro- prietor of such trade mark by virtue of manufacture, selec- tion, certification, dealing with, or offering for sale" (s. 3). The term mark in this definition is itself defined as including any " device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof " (s. 3). A title to a trade mark can be obtained only by registra- tion, it being provided by section 42 of the Act that " no peison shall be entitled to institute any proceedings to prevent or to recover damages for the infringement of an unregis- tered trade mark." This provision, however, does not ex- clude or affect the common law as to actions for passing off, foi- by section 45 it is provided that " noithing in this Act shall be deemed to affect rights of action against any person for passing off goods as tbose of another person or the reme- dies in respect thereof." The statutory remedy for the in- fringement of a registered trade mark, and the oommon-law remedy for passing off goods, whether by the deceptive use of a trade mark (registered or unregistered) or otherwise, are therefore concurrent and independent. Only certain classes of trade marks are capable of regis- tration under the Act, and all others must necessarily stand outside the protection of the Act, and can only be made the .subject of a oommon-law action for passing off (s. 9). 33(2) 516 CHAPTER XVI. INTIMIDATION. Two kinds of intimidation. Intimidation of the plaintiff himself. § 153. Intimidation of a Person to his own Injury. 1. The wrong of intimidation includes all those cases in which harm is inflicted by the use of unlawful threats whereby the lawful liberty of others to do as they please is interfered with.i This wrong is of two distinct kinds, for the liberty of action so interfered with may be either that of the plaintiff himseK, or that of other persons with resulting damage to the plaintiff. In other words, the defendant may either intimi- date the plaintiff himself, and so compel him to act to his own hurt, or he may intimidate other persons, and so compel them to act to the hurt of the plaintiff. We have already seen that the wrong of fraud or misrepresentation is divisible into two kinds on the same principle, for the defendant may either deceive the plaintiff himself or deceive other persons to the plaintiff's injury. 2. Intimidation of the plaintiff himself. Although there seems to be no authority on the point, it cannot be doubteid that it is an actionable wrong intentionally to compel a person, by means of a threat of an illegal act, to do some act whereby loss accrues to him: for example, an action will doubtless lie at the suit of a trader who has been compelled to discontinue his business by means of threats of personal violence made against him by the defendant with that in- tention. "In my opinion," says Hawkins, J., advising the House of Lords in Allen v. Flood,^ "any menacing action 1 It ia to be remembered in connection with the wrong of intimi- dation that by the Trade Disputes Act, 1906, trade unions have been exempted from all liability for their illegal acts. Supra, s. 18. There ia nothing, therefore, to prevent such a body from exercising any form, of coercion or oppression which it pleases. 2 (1898) A. O. p. 17. SECT. 153] INTIMIDATION. 517 or language the influence of which no man of ordinary firm- ness or strength of mind can reasonably be expected to resist, if used or employed with intent to destroy the freedom of will in another, and to compel him, through fear of such menaces, to do that which it is not his will to do . . . amounts to an attempt to intimidate and coerce; and if such attempt is successful . . . the person wrongfully inj ured by it . . . may sue the coercer for reparation in damages. "^ In such a case, however, it is clear that the threat com- plained of must be a threat to do an act which is in itself illegal. No threat to exercise one's legal rights can amount to a cause of action, even if made for the purpose of intimida- , "^ tion or coercion, and even if inspired by malicious motives.* ^'^ ''' § 154. Intimidation of a Person to Another's Injury. 1 . In certain cases it is an actionable wrong to intimidate intimidation . T n> c IT °' other other persons with the intent and effect of compelling them pereons to to act in a manner which causes loss to the plaintiff. We *^^ Sii'^ifl* leave out of account in this connection all cases in which the act 60 procured to be done by the third person is itself a wrongful act as against the plaintiff : as when A by threats coerces B into committing a tort against C, or into breaking a contract with him. For the liability of A in such a case does not depend specifically on the fact of intimidation, but generically on the fact of procurement in whatsoever fashion . To procure the commission of a tort or the breach of a contract is itself a tort, apart from any question as to intimidation.! We are here concerned with intimidation which constrains third persons to do acts against the plaintiff which they themselves have a legal right to do : for example, the intimidation of the plaintiff's customers whereby they are compelled to withdraw their custom from him, or the 3 See also Mogul Stemnshvp Co. v. McGregor, Goto % Co. (1889), 23 Q. B. D. p. 614, per Bowen, L. J. * Allen V. Flood, (1898) A. O. 1. i Supra, 8. 26 (1); infra, a. 160. 518 INTIMIDATION. [CHAP. XVI. intimidation of an employer whereby he is compelled to dis- charge his servant, the plaintiff. Intimidation of this sort is actionable, as we have said, in certain classes of cases; for it does not follow that, because a plaintiff's customers have a right to cea^e to deal with him if they please, other persons have a right as against the plaintiff' to compel his customers to do so. There are at least two cases in which such intimidation is certainly a cause of action: — (a) When the intimidation consists in a threat to do or procure an illegal act: (6) When the intimidation is the act not of a single person, but of two or more persons acting together in pursuance of a common intention; or, in other words, when the intimidation assumes the form of a cons23iracy. We shall deal with these two cases in their order. Threats of 2. Intimidation by threats of illeqal act. Any person is guilty of an actionable wrong who, with the intention ana effect of intimidating any other person into acting in a certain. manner to the harm of the plaintiff, threatens to commit or procure an illegal act. Thus, in Tarleton v. McGauley^' two British ships, the Othello and the Bannister, were lying near each other off the coast of Africa, engaged in trading with the natives. A canoe manned by natives approached the Bannister for the purpose of trading, when the master of the Othello, with the intention of preventing this, fired a cannon at the canoe, and killed one of the crew, creating thereby such a panic among the natives that they ceased to trade Avith the Bannister. An action was successfully brought against the master of the Othello for the loss thus sustained by the owners of the Bannister. So in Lyons v. Wilkins^ the intimidation of the plaintiff's workmen by means of picketing during the progress of a strike was restrained by injunction (picketing of this description then being a criminal offence under the Conspiracy and Protection 2 (1793), 1 Peake, 270. 3 (1896) 1 Oh. 811; (1899) 1 Ch. 255. SECT. 154] INTIMIDATION. 519 of Property Act, 1875); and on proof of actual damage no doubt an action for damages would have lain.* 3. Intimidation by irai/ of con^pinici/ . It is an action- Conspiracy to able Avrong for two or more persons to combine or conspire int™idate. together, without lawful justification, with the intention and effect of doing harm to the plaintiff by intimidating other j)ersons and coercing them to act in a certain way. Where this element of combination or conspiracy exists, it is not necessary that the intimidation should amount to a threat of illegal action. Any threat to inflict harm upon the persons so intimidated if they do not act in the way desired amounts to actionable intimidation within the meaning of this rule . The essence of the wrong consists in the combination of two | , . , _ or more persons to exercise their legal power over othei persons for the purpose of compelling them to do harm to ■ ' the plaintiff. This principle was established by the House of Lords in Quinnt;. the leading case of Quinn v. Leathern.^ The plaintiff was a ^* ^""' butcher who had a dispute with the trade union of which tlic defendants were officials, with respect to the employment of certain workmen who did not belong to the union. The . defendants requested the plaintiff to discharge these men, but he refused . Whereupon, with a view of compelling him to do so, the defendants compelled the plaintiff's chief customer to cease to deal with him, by threatening that otherwise they would call out that customer's workmen. The plaintiff was held entitled to sue the defendants for damages for the loss which he had sustained through the withdrawal of his customer . So in Giblan v. National Amalgamated Labourers' Vnion*'' the plaintiff was a member and former official of the union, and owed them certain moneys which he had misappropriated from their funds. In order to compel him to make restitu- tion the union determined to prevent him from obtaining employment, and repeatedly procured his dismissal from different employments by threatening his employers with a 4 See now the Trade Disputes Act, 1906, 3. 2. 5 (1901) A. C. 495. « (1903) 2 K. B. 600. 520 INTIMIDATION. fcHAP. XVI. Justification for intimi- dation. strike if they continued to employ him. It was held by the Court of Appeal that this was a good cause of action within the rule in Quinn v. Leathern. "A combination," says Romer, L.J.,'' "of two or more persons, without justifica- tion, to injure a workman by inducing employers not to employ him or continue to employ him is, if it results in damage to him, actionable. "^ 4. Intimidation which is prima facie unlawful within the rule in Quinn v. Leathern may be the subject of some special justification applioable bo the particular class of case. What amounts to a justification is a question of law for the Court, not of fact for the jury, and as the law at present stands no complete answer aan be given to it.^ It may be regarded as settled, however, that no mere honesty of purpose — ^no mere absence of malicious motive — amounts to a justification; and, conversely, that if a, justification does otherwise exist, no form of malice or improper motive will destroy it.^o ^ (1903) 2 K. B. p. 618. 8 Temperton v. Mussell, (1893) 1 Q. B. 715, is a similar case, the decision of which was expressly approved by the House of Ix)rds in Quinn V. Leathern, though the reasons for the decision are no longer valid since Allen V. Flood, (1898) A. O. 1 — ^being based on the assumption that the right of action in such cases is founded on the malicious motive of the defendant. The rule in Quinn v. Leathern is quite independent of the rule in Bowen V. Hall (1881), 6 Q. B. D. 333 {infra. Oh. XVIII.) as to the wrong of inducing a breach of contract, although these two species of wrongs are often found in combination. The earlier case of Allen v. Flood, (1898) A. O. 1, is in its actual facts indistinguishable from Quinn v. Leathern, yet the decision of the House of Lords was different. The explanation of this apparent conflict 19 that Allen v. Flood was decided by the House of Lords not on the actual facts at all, but on the facts as found by the verdict of a jury. 1 1 No case of combination or conspiracy was made out by the plaintiff; he proved nothing except the isolated act of a single defendant, and the only finding of the jury was that the defendant maliciously induced the plaintifE's employers to discharge him from their employment. The decision of the House of Lords was merely that this fact alonei did not amount to a cause of action. jVIerely to induce another to' refrain from entering into a contract is not, in itself and without) more, an actionable wrong; and it does not become actionable even if a jury finds that the act was inspired by malice. " The decasioin. of this case," says Lord Macnaghten in Allen v. Flood, (1898) A. O. p. 153, " can have no bearing on any case which involves the elemenft of oppressive combination." See also Quinn v. Leathern, (1901) A. O. p. 507, per Halsbury, L. O., and p. 532, per Lord Lindley. ^ See the observations of Romer, L. J., in G-ihlan v. National Amal- gamated Labourers' Union, (1903) 2 K. B. p. 618. 10 Allen V. Flood, (1898) A. O. 1. SECT. 154] INTIMIDATION. 521 It must be held a sufficient justification that the act oom- plained of was one done in the just and reasonable defence of one's own rights and interests. Thus, in Mogul Steam- ship Co. V. McGregor, Gow d CoM the plaintiff alleged {inter alia) that the defendants, who were an associated body of traders in China tea, had wilfully caused loss bo him, a rival trader, by compelling certain merchants in China to cease to aot as his agents by m^eans of a threat that if they continued to do so the agency of the defendant association would be withdrawn from them. This was held by the House of Lords to be no cause of aotion, it being a justifiable measure of seK-protection on the part of the association to prevent the same persons occupying the inconsistent posi- tions of agents both for the association and for the plaintiff. So it is submitted that if all an employer's servants except one combine to inform their employer that they will lea\'e his /^ 'C employment unless that other is dismissed, and he is dismissed accordingly, the liability of his fellow-servants to him will depend on whether there was or was not a justification of reasonable and lawful self-interest for their action. His want of care or skill, for example, may have been a source of danger to them. 5 . An important exception to the rule in Quinn v. Leathern Intimidation has been established by the first section of the Trade Disputes ^ *'"*tg*g Act, 1906, which provides that " an act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute,^- not bo actionable unless the act, if done without any such agreement or combination, would be actionable." In the case, therefore, of acts done in contemplation or furtherance of a trade dispute, as defined by this statute, the element of conspiracy or combination is irrelevant and is no ground of liability. 6. Quinn v. Leathern and the other similar cases that have Is a oou- been cited leave open a number of important and difficult to deal with questions on which there is not as yet any conclusive autho- a person 11 (1892) A. O. 25. 15 Comvay v. Wade, (1909) A. C. 506. 522 IN'J'IMIDATION. [chap. XVI. actionable rjty. One of tliese is this: Is a combination or oonspiracy atbisemtf "^ , • i i • t not to make contracts with or otherwise deal with, a par- ticular person actionable at the suit of that person himself ? Qiiinn v. Leathern decides merely that it is actionable at the suit of a third person who has been intentionally injured by the coercion thus exercised upon another — namely, his employer, servant, or customer. To take a concrete case: A's servants combine and threaten to leave him unless he ceases to deal with B, and in consequence of this threat he ceases to deal with him, witli resulting loss both to himself and to B. If B sues these servants he has a good cause of action within the rule in Quinn v. Leathern. But can A himself sue them? It is submitted that he cannot. To hold otherwise would be to make a strike an actionable wrong against a masteo" in all ca&es in which no reasonable and lawful justification for it can be proved to the satisfaction of the Court. This can scarcely be the law. It would seem tliat the right of combination between workmen to refuse to work is, as against their employer, absolute, and that it makes no difference what the purpose or motive of their action is. 13 Whether a man's workmen combine against him in a strike for the just and reasonable purpose of raising their own wages, or for the malicious purpose of imposing undeserved ruin upon him, is indifferent in law. But if, on the other hand, their purpose is to coeroe their master into doing harm to some third person, then tliat third person has a cause of action within the rule in Quinn v. Leathern. For he can make against the servants a charge which their master cannot make: viz., that by their wilful act tliey have deprived him of an advantage to which, as against them, he has a legal right — that is to say, the continuance of profitable commer- cial relations between their master and himself. Servants in combining for any purpose to leave their master's em- ployment deprive him of no right which is his, but mijrely exercise their own. It is true that this liberty of combination may be the means 13 See Jose v. Metallic Hoofing Co., (1908) A. C. 514. SECT. 154] INTIMIDATION. 523 of much oppressive and unjust action. The law, if this is a correct account of it, gives its sanction not only to strikes for wliich tliere is no monal justification, but to other forms of harmful combination which can serve no good purpose, and arc merely instruments of unjust mischief: for example, a combination among the employers in a trade not to employ a certain workman, a combination among the inhabitants of a village to have no dealings Avith some unpopular resident, or a combination among medical men to hold no communion with a certain member of the profession. These things are lawful, however morally unjustifiable, for to hold otherwise would involve the law in impracticable inquiries as to the motives with which men exercise their legal rights. ^''^ It is to be remarked, however, that this exemption from Combination legal liability attaches to combinations onl}' so long as they eompulaioii. are ]Durely voluntary. Any element of compulsion for the purpose of promoting combination or securing unanimity w"ill at once bring the case within the principle of Quinn v . Leathern. Apart from the Trade Disputes Act, 1906, a strike at once becomes unlawful, even against the master, if any threats of harm (even lawful harm) arc used by the strikers to compel dissentient or reluctant workmen to leave their work, or to prevent other workmen from taking the place of the strikers. "A combination not to work," says Lord Lindley in Quinn v. Leathem,^^ "is one thing, and is lawful. A combination to prevent others from working by annoying them if they do is a very different thing, and is prima facie unlawful." Similaidy, if a case of boycotting can be proved to be more than a voluntary combination' — if the combination has been in any degree the outcome of com- pulsion exercised on those who took part in it — it becomes thereby an illegal and actionable conspiracy AAdthin the authority of Quinn v. Leathern. 7 A second question which still remains undecided is Iscombina- this : Is the element of combination really essential to a cause in°thrrule7ii of action within the rule in Quinn v. Leathern ? Would not Quinn r. Leathern V 1* See, for example, Kearney v. Lloyd (1890), 26 L. E. Ir. 268. 15 (1901) A. O. p. 538. S^^* INTIMIDATION. [cHAP. XVI. the same class of acts for which the defendants were held liable in that case be equally actionable had they been done by a single person, without any conspiracy, comTDination, or agreement for joint action with others ? Is it not a tort for one person intentionally and without lawful justification to do harm to the plaintiff by threatening other persons with harm unless they withdraw their service, custom, or employ- ment from him ? If this is so, the fact of combination is not essential to the cause of action, but is merely a circum- stance of aggravation increasing the oppressiveness and the effectiveness of the compulsion thus exercised and the magnitude of the evil done by it . For this wider interpretation of the rule in Quinn v. Leathern there is much to be said both on principle and authority, and it is submitted that it is the true doctrine. It is adopted by Lord Lindley in Quinn v. Leathern}-^ itself, and the same view is expressed by Romer, L. J., in Giblan's case;!*' " I should be sorry to leave this case without observing that in my opinion it was not essential, in order for the plaintiff to succeed, that he should establish a combination of two or more persons to do the acts complained of., In my judgment if a person, who by virtue of his position or influence has power to carry out his design, sets himself to the task of preventing a man from obtaining or holding employment in his calling, to his injury, by reason of threats to or special influence upon the man's employers or would-be employers, and the design was to carry out some spite against the man, or had for its object the compelling him to pay a debt, or any similar object not justifying the acts against the man, then that person is liable to the man for the damage consequently suffered." So Stirling, L. J., speaking of the acts of the defendants in the same case says'.^^ "I am far from satisfied that they are not such as to be illegal even if done by a single individual." The distinction between the harmful and oppressive nature i» (1901) A. 0. p. 538. 16 (1903) 2 K. B. p. 619. 17 (1903) 2 K. B. p. 623; see also Conway v. Wade, (1909) A. 0. p. 516, per Lord Atkinson. SECT. 154] INTIMIDATION. 525 of compulsion exercised by one person and of compulsion exercised by a combination of persons is merely one of degree; and, though there is a very serious difference between the oppressive power of a single workman and that of a trade union having ten thousand membere, there is no material difPerence between the power of one workman and that of two; yet it has never been suggested that a conspiracy of two persons is too small to be actionable under the rule in Quimi V. Leathern. A rule that would make the liability of a man for oppressive and mischievous coercion exercised by him over another depend on whether he acts singly or in combination with another individual would seem based on too slight a difference to commend itseK as rational. What is to be said, for example, of a rule that would make a firm of two partners liable for an act which a single trader can do with impunity ? Moreover, it is clear that a single person may by reason of great wealth or influence be able to exercise coercive power over others in a degree exceeding that which is possible even to a large combination of smaller men. Why should the combination be liable, while the single individual of even greater wealth and power goes free ? 8. It remains, however, to consider whether, in view of Allen «. the decision in Allen v . Flood,^^ it is possible now to hold Quinn v. that combination is unessential, and that coercion exercised Leathern, by a single person is an actionable tort, for it may seem as if the element of conspiracy was the only ground of distinction between Allen v. Flood and Quinn v. Leathern. It is submitted that Allen v. Flood does not exclude this wider interpretation of Quinn v. Leathern. Allen v. Flood, if we regard the decision itself, and the essential reasons for it, and not merely unessential dicta, decides nothing more than is contained in the head note of the report — namely, that the motive of an act is immaterial, that an act otherwise legal does not become illegal because of a malicious motive, and that no act otherwise illegal is justified by the motive with which it is done. It was on exactly the opposite principle 18 (1898) A. 0. 1. 52H INTIMIDATION. [chap. xvi. General principle suggested. Trade Disputes Act. that, the Court of Appeal decided the case: the jury was directed that the liability of the defendant depended on whether he acted maliciously or not, and they found that he had so acted. The Court of Appeal approved of that direc- tion and finding; and it is this doctrine which has been authoritatively rejected bj' the decision of the House of Lords. Maliciously to induce persons not to deal with the plaintiff is a different thing from intimidating them without lawful justification from doing so. The first of these acts is innocent in accordance with Allen v. Flood ; the second is an actionable tort in accordance with Quinn v. Leathern .^^ 9. If, then, this is the true interpretation of the rule in Quinn v. Leathern, that rule is not a special rule as to conspiracy, but is simply an extension of the established law as to intimidation to cover a threat of acts which, though not illegal, are nevertheless harmful. The jDrinciple may be formulated as follows : In the absence of any laivful fustifi- calion, any person or body 'OJ persons^^ is guilty of an actionable ivrong by intimidating other persons by a threat of harm (lawftd or imlawjid) whereby they are intentipnally coerced into causing harm to the plaintiff .^^ 10. By sect. 3 of the Trade Disputes Act, 1906, how- ever, it is provided that "an act done by a person in contemplation or furtherance of a trade dispute shall not be 19 In Conway v. Wade, (1909) A. C. 506, the House of Lords held a single defendant, in the absence of any combination or conspiracy, liable for procuring the dismissal of the plaintiff by threatening his employers with a strike, but this case is complicated by the oircuinstance that the threat comprised wilful misrepresentation of fact, and the decision there- fore cannot be regarded as a final authority on the question discussed in the text. 2" Except a trade union. Trade Disputes Act, 1906, s. 4. 21 In addition to the cases already cited, the following may be referred to as bearing on the question of liability for intimidation and conspiracy. The law, however, is too uncertain to render their detailed consideration useful in this plaoe. Gregory v. Duke of Brunswick (ISH), 6 M. & G-. 205, 953; Jenkinson v. Neild (1892), 8 T. L. R. 540; Trollope v. London Building Trades Federation (1895), 72 L. T. 342; Buttley v. Simmons. (1898-) 1 Q. B. 181; Boots v. Grundy (1900), 82 L. T. 769; BuLcock v. St. Anne's Master Builders' Federation (1902), 19 T. L. R. 27. An exhaustive examination of the question will be found in the report of the Royal Commission on Trade Disputes and Trade Combinations: 1906 Od. 2825. See also Sir Frederick Pollock's discussion of the ques- tion in his Law of Torts, pp. 328-347, 9th ed. SECT. 154] INTIMIDATION. 527 actionable on the ground only that . . . it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills. "^^ Consequently, even on the wider interpretation of the rule in Quinn v. Leathern above suggested, acts done in contemplation or furtherance of a trade dispute are now exempted from its operation and made lawful by this enactment, however oppressive, injurious, and unjustifiable they may be. "If upon these facts," says Lord Halsbury, speaking of the acts of the defendants in Quinn v. Leathevt,^^ " the plaintiff could have no remedy against those who had thus injured him, it could hardly be said that our jurisprudence was that of a civilised commu- uitj'." There is now no remedy. 22 See Conway v. Wade, (1909) A. C. 506; ZarMn v. Lonr/, (1915) A. C. 8U. 23 (1901) A. O. p. 506. 528 CHAPTEE XVII. WRONGFUL PROCESS OF LAW. In the case of legal 2>roosedings which are erroneous, mali- cious, or otherwise wrongful it is necessary to consider (1) the liability of the judges, magistrates, or other judicial offioetrs; and (2) the liability of the parties. We must also distin- guish between (1) the liability of the superior Courts, and (2) that of inferior Courts. Superior Courts free from all liatility. Even for eiceas of jurisdiction. § 155. Liability of the Superior Courts of Justice. 1. Although the question has never been authoritatively decided, it is probable that a judge of one of the superior Courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions. This is certainly so in the case of a mere error or irregularity in respect of matters within the Kmits of his j urisdiotion ; for in this case, as we shall see, even the inferior Courts are free from respionsibility . It is also clearly established that so long as the jurisdiction of the Court is not exceeded, a judge is not liable even for a malicious, corrupt, or op- pressive exercise of that j urisdiotion. ^ The remedy for judicial errors is some form of appeal to a higher Court, and the remedy for judicial oppression or corruption is a crimi- nal prosecution or the removal of the offending judge; but in neither case is he called on to defend his judgment in a suit for damages brought against him by an injured litigant. 2. When, however, the illegal act complained of is beyond the limits of the defendant's jurisdiction, it is not definitely 1 Anderson v. Gorrie, (1895) 1 Q. B. 668; Scott v. Stansfield (1868), L. B. 3 Ex. 220; Huggard v. Pelider Freres, (1892) A. O. 61; Fray v. Blackburn (1863), 3 B. & S. 576. SKCT. 15o] LIABILITY OF SUPERIOR COURTS. -^29 settled whether a superior judge is froe from liability; or whether, as in the case of inferior judges, he is civilly respon- sible for such an exooss of jurisdiction. Probably, however, the rule of exemption is absolute and applies even in this case. A Court of Appeal may reverse his decision, but there is no Court of first instance wliich has any authority to enter- tain an action against him, and to give judgment against him for d,amages because its opinion on the point decided by him differs from his. In Miller v. S&are- it is said by De Grey, C. J.: " It is agreed that the Judges in the King's superior Courts of Justice axe not liable to answer personally for their errors in judgment. ... In Courts of spiecial and limited juris- diction ... a distinction must be made. While acting within the line of their authority they are protected as to errors of judgment; otherwise they are not protected. . . . The protection in regard to the superior Courts is absolute and universal; with respect to the inferior, it is only ^^'hile they act within their jurisdiction." In the Irish case of Taafe v. Dowries^ an action was brought in the Irish Court of Common Pleas against the Chief Justice of the Irish Court of King's Bench for an illegal arrest, and it was held by a majority of the judges tliat no action would lie against a judge of one of tKe superior Courts.^ § 156. Liability of Inferior Courts of Justice. 1 . Judges of an inferior Court of record possess the same Inferior immunity as judges of the superior Courts so long only as exempt they do not exceed their jurisdiction. Within the limits within the „,...,.. , ,, . i- J! • -1 limits of their of their jurisdiction, however, their exemption trom civil jurisdiction. liabilify is absolute, extending not merely to errors of law 2 (1773), 2 W. BL p. 1145. ^ (1812), 3 Moore P. C. 36, n. * The same opinion prevails in. the United States of America. See Am. & Eng. Bncyc. of Law, Vol. 17, p. 728, 2nd ed. In Anderson v. Gorrie, (1895) 1 Q. B. 668, on the other hand, which was an action against the Judges of the Supreme Oourt of a colony, it seems to have been assumed by the Oourt of Appeal that the defendants would have been liable had they exceeded their jurisdiction. s. 34 530 WRONGFUL PROCESS OF LAW. [CHAP. XVII. Justices of the Peace. and fact, but to the malicious, corrupt, or oppressive exer- cise of their judicial powers. ^ For it is better that occasional injustice should be done and remain unredressed under the cover of this immunity than that the independence of the judicature and the strength of the administration of justice should be weakened by the liability of magistrates to un- founded and vexatious charges of error, malice, or incom- petence brought against them by disappointed litigants. 2. Probably a similar immunity is possessed even by those inferior Courts which are not Courts of record. ^ There are many dicta, however, to the effect that Justices of the Peace (and therefore, presumably, other judicial officers whose Courts axe not of record) are liable for the malicious exercise of their judicial powers even within the limits of their juris- diction. 3 Section 1 of 11 & 12 Vict. c. 44, seems to assume that this is the law; for it provides that in any action against a Justice of the Peace for an act done within the limits of his jurisdiction it shall be necessary to prove malice and the absence of reasonable and probable cause. There is, however, no case in which any such action has been main- tained, and it would seem difficult to justify any such dis- tinction between different classes of magistrates.* 3. A judge of an inferior Court is civilly liable for any act for exceeding done by him in excess of his jurisdiction and in the nature of diction""'^" ^ trespass against the person or property of the plaintiff or otherwise a cause of damage to him. S'ueh a judge deter- mines the limits of his own jurisdiction at his own peril, and (speaking generally) he will answej* for any mistake; nor is it necessary for the plaintiff to prove any malice or want of reasonable or probable cause. The decision of an inferior judge that he possesses jurisdiction is not conclusive in his Inferior Courts liable 1 Scott V. StansfieU (1868), L. R. 3 Ex. 220; Anderson v. Gorrie, (1895) 1 Q. B. 668; Haggard v. PeUoie-r Freres, (1892) A. C. 61; JOoswell V. Impey (1823), 1 B, &6. 163. 2 See Haggard v. Pelicier Freres, (1892) A. C. 61. 3 Cave V. Mountain (1840), 1 M. & G. p. 263; Linford v. Fitzroy (1849), 13 Q. B. p. 247; Burley v. Bethune (1814), 5 Taunt. 580; Taylor v. Nesfleld (1854), 3 E. & B. p. 730. * The point is considered, but left open, in Gelen v. Hall (1857), 2 H. & N. 379. SKCT. 156] LIABILITY OF INFERIOR COURTS. '^31 own favour; it does not lie witliin his jurisdiction to deter- mine authoritatively the limits of it. His duty is to observe tliose limits, not to exercise the judicial function of deciding what they ai-e. A stiperior Court, on the other hand, is in- trusted with the power of determining its own jurisdiction, and is no more answerable for a judicial error on tliis point than for a judicial error on any other. In Dosivell v. Impey^ it is said hj Abbott, C. J.: "The general rule of law as to actions of trespass against persons having a limited authority . . is plain and clear. If they do any act beyond the limit of their authorit}', they thereby subject themselves to an action of trespass, but if the act done be within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such action." 4. The distinction thus drawn between an excess of a Meaning of magistrate's jurisdiction and a wrongful act witliin the limits jurisdiction, of his jurisdiction is one whioli it is easier to state in general terms than to define with accuracy or apply with precision. It may probably be said with truth, however, that a magis- trate may exceed his jurisdiction in three ways: (a) When he has no power to deal with the kind of matter brought before him: as when a single Justice of the Peace makes an order which should be made by two. (&) "When he has no power to deal with tlie particular person oonoemed: for example, because that person has not been properly summoned before him, or is not resident within the local jurisdiction of the Court.6 (c) When, although there is jurisdiction over the matter and the person, the judgment or order given or made in the matter is of a kind which the magistrate has 5 (1823), 1 B. & O. at p. 169. 6 Carratt v. Morley (1841), 1 Q. B. 18; Mitchell v. Foster (1840), 12 A. & B. 472; Caudle v. Seymour (1841), 1 Q. B. 889; Jones v. Gurdon .(1842), 2 Q. B. 600; BouUen v. Smith (1850), 14 Q. B. 841. 34(2) 532 WRONGFUL PEOCESS OF LAW. [cHAP. XVII. no power tx) give or make : as if he imprisons instead of fining, or imprisons for a longer period than the law permits.'^ In all thesie cases the magistrate is liable as for an excess of jurisdiction. When, on the other hand, he has power to give the kind of judgment which he has given, against the person complaining of it, he is not liable merely because his judgment is erroneous in law or in fact,^ or because there has been some irregularity of procedure.^ Such an error or irregularity is merely a wrongful exercise of juris- diction, not an excess of it. Thus, in Brittain v. Kinnaird^^ justices were empowered by statute to hear and determine charges of certain oSences committed on board boats in the River Thames. The plain- tiff was convicted by the defendants, and sued them in tres- pass on the ground that the vessel was not a boat within the meaning of the statute. It was held that they were under no liability, whether this was so or not. Their decision as to the nature of the vessel was, even if erroneous, merely a mistaken exercise of their jurisdiction, not an excess of it. They were empowered to determine judicially whether the vessel was a boat; and not merely to determine the otlier matters in question if the vessel was a boat. " Whetlaer the vessel in question," it is said,^^ "was a boat or no was a fact which the magistrate was to decide, and the fallacy lies in assuming that the fact which the magistrate has to decide is that whicli constitutes his jurisdiction." So in Cave V. Mountain^^ Justices of the Peace were held not liable for imprisomng the plaintiff on insufficient and legally inadmissible evidence. A decision upon the evidence is within the jurisdiction of the magistrate who has jurisdic- tion to hear the case. So in Linford v. Fitzroy^^ a Justice 7 Prickett V. Gratrex (1846), 8 Q. B. 1020. 8 Brittain v. Kinnaird (1819), 1 B. & B. 432; Linford v. Fitzroy (1849), 13 Q. B. 240. 9 Bott V. Acleroyd (1859), 28 L. J. M. O. 207; Penney v. Slade- (1839), 5 Bimg. N. O. 319. 1" (1819), 1 B. & B. 432. n 1 B. & B. at p. 442. 12 (1840), 1 M. & G. 257. i^ (1849), 13 Q. B. 240. SECT. 166] LIABILITY OF INFERIOR COURTS. 633 of the Peace ^\'as held not liabJ.e for a refusal to accept bail. Whether the bail offered was sufficient or not was a question the determination of which fell within the limits of his jui'isdiction, and liis decision was conclusive in his own favour. His duty was not a duty to accept bail if it was sufficient, but a duty to determine, in the cxorcdse of his judicial discretion, whether it \\as sufficient or not. So in Garnett v. Ferrand^^ a coroner was held not liable for removing the plaintiff from his Court on the ground that he was disturbing the proceedings, although there was no reasonable or probable ground for this removal. The power of exclusion carries a^ ith it jurisdiction to decide conclusively whether the facts are sufficient to justify exclusion. ^^ '3. When a, magistrate exceeds his jurisdiction by reason Distinction of a mistake of law, his liability is absolute, being inde- mistake of pendent of any malice or negligence. He is bound at his j,*^^ ^^^ °* peril to know the law as to his own powers. ^^ When, on the othei- hand, his mistake is one of fact, he is not liable unless he either knew or oug'ht to have known the facts which de- prived him of jurisdiction. There must, in other words, be either knowledge of the want of jurisdiction or an absence of any reasonable and probable cause for believing that juris- diction existed. 1^ Thus, if a magistrate imprisons a person who by reason of his residence outside the district of the Court is not subject to his jurisdidtion, he is liable if the mistake is one of law, but not liable if it is an excusable mistake of fact .iS 19 20 " (1827), 6 B. & O. 611. 15 Of. Willis V. Maclachlan (1876), 1 Ex. D. 376. 16 Houlden v. Smith (1850), 14 Q. B. 841. " Pease v. Chaytor (1861), 1 B. & S. 658; 3 B. & S. 620; Galder v. Ealket (1839), 3 Moore P. O. 28; Polley v. Fordham, .Vo. 2 (1904), 91 L. T. R. 525. 18 Eoulden v. Smith (1850), 14 Q. B. 841. _ 19 A judicial officer who in the particular instance acta in a merely ministerial capacity— in the performance of a ministerial duty as op- posed to the exercise of a judicial discretion — ^is liable in the same manner as any other ministerial officer, and derives no protection from his judicial character. 20 The liability of justices of the peace for their judicial acts is modified by certain statutory provisions contained in 11 & 12 Vict. 0. 44. 534 WRONGFUL PROCESS OF LAW, [CHAP. XVII. Kinds of malicious proceedings for which an action lies. § 157. Malicious Prosecution and other Malicious Process. 1. Having considered tlie liability of magistrates and judges in the case of wrongful legal proceedings, it remains, to deal with the liabilities of the parties to these proceedings. This matter must be considered under two heads — (1) mali- cious proceedings, and (2) erroneous and irregular pro- ceedings . 2. It is an actionable wrong to institute certain kinds of legal proceedings against another person maliciously and witliout reasonable and probable cause. The chief classes of proceedings to which this rule of liability applies are the following: — (a) Malicious criminal prosecutions. It is the wrong known as malicious prosecution to institute criminal pro- ceedings against any one, if the prosecution is inspired by malice and is destitute of any reasonable cause. It is not every kind of criminal prosecution, however, which faRs within this rule. The rule applies only to prosecutions which involve scandal — that is to sa}-, which attack the fair fame of the accused — or which may result in a sentence of imprisonment or other corporal punishment, or which in fact cause pecuniary loss to the accused. ^ A charge which is not scandalous in its nature, and which can result in a fine only, cannot therefore be made the grounds of an action for malicious prosecution unless it causes actual pecuniary loss ; e.g., a prosecution for the breadh of a by-laA\' in allowing one's cattle to stray upon a highway. ^ The scandalous nature of a charge must be determined by referenoe bo the legal nature of the offence charged, and not by reference to the nature of the evidence produced at the trial. ^ With respect to proof of pecuniary loss it is to be obsei-ved that 1 Wiffen V. Bailey and Romford Urban Council, (1915) 1 K. B. 600; Quarte Hill Gold Mining Co. v. Efire (1883), 11 Q. B. D. 674. 2 Wiffen V. Bailey and Romford Urban Council, (1915) 1 K. B. 600. s Ibid. p. 611, per Phillimore, L. J.; p. 614, per Pickford, L. J. SECT. 157] MALICIOUS PROSECUTION. 535 the difference between party and party costs and solicitor and client costs is not recog'nisable as legal damage. In prosiecutions, therefore, in which costs are recoverable by the accused, the additional costs incurred by him cannot be i made the grounds of an action.* (6) Malicious bankruptcy procee/Ungs . A similar liability attaches to him who maliciously and without reasonable cause petitions to have anothel' person adjudicated a bankrupt.^ (c) Malicious liquidation proceedings. A malicious and groundless attempt to have a company wound up as insolvent is, on the same principle, an actionable tort.^ {d) Malicious arrest . Similarly it is an actionable injury I to procure the arrest and imprisonment of the plaintiff hy means of judicial process, whether civil or criminal, which is instituted maliciously and without reasonable cause. Thus, in Churchill v. Slggers'' the plaintiff was a debtor against whom judgment had been duly obtained by the defendant, and who, although he had paid part of the judgment debt, was arrested by the creditor on a writ of capias ad satisfaciendum issued for the full amount of the debt. It was held that the plaintiff had a good cause of action for such an abuse of legal process. This species of wrong is to be distinguished from false imprisonment. False imprisonment is the act of the defendant himself or of a merely ministerial officer put in motion by him., Under the old practice the appropriate remedy was a writ of trespass, and, speaking generalh', neither malice nor want of reasonable and probable cause was or is required. But in malicious arrest the im- prisonment is effected by or in pursuance of the valid order or judgment of a judge or magistrate; no action of trespass would lie; the remedy was in case for wrongfully abusing the process of the Court; and there was and is no cause of action except on proof of malice and want of reasonable cause. (e) Malicious execution against property. On the same * Ibid.; Quartz Hill Gold Mining Co. v. Eyre, 11 Q. B. D. 674. 5 Johnson v. Emerson (1871), L. E. 6 Ex. 329. 6 Quartz HUl Gold Mining Co. v. Eyre (1883), 11 Q. B. D. 674. 1 (1854), 3 E. & B. 929. 536 WEO>s'GFUL PROCESS OF LAW. [ciIAP. XVII. Ordinary civil notions. Conditions of liability. pi'inciple it is an actionable wrong maliciously and without reasonable and probable cause to issue execution against the jjroperty of a judgment debtor.* 3. The bringing of an ordinary civil action (not extending to any arrest or seizure of property) is not a good cause of action, however unfounded, vexatious, and malicious it may be. 9 The reason alleged for this rule is that an unfouaded and unsuccessful civil action is not the cause of any damage of which the law can take notice. Even for the injury which baseless accusations made in a civil action may inflict upon the reputation of the defendant, it would seem that no action lies. It seems that a litigant may maliciously and without any reasonable ground make the gravest charges of fraud or other disgraceful conduct without incurring any other liability than that of paying the costs of the prooeeding-s. To what classes of civil proceedingis this rule of exemption applies is far from clear. Will an action lie at the suit of a person maliciously joined as a co-respondent in a divorce suit, or at the suit of a person against whom affiliation proceedings have been maliciously taken, or at the suit of a solicitor whom the defendant has maliciously endeavoured to have struck off the roll ? If malicious proceedings in bankruptcy are, as we have seen, a good cause of action, there seems no reason why a similar conclusion should not be drawn with respect to the proceedings mentioned. 4. In order that an action shall lie for malicious prose- cution or the other forms of abusiye iprocess which have been referred to, there are the following conditions to be fulfilled : — («) The proceedings must have been instituted by the defendant; 8 Churchill v. Siggers (1854), 3 E. & B. p. 937; cf. Clissold v. Cratchley, (1910) 2 K. B. 244. In this case execution was issued in ignorance of the fact that the judgment had already been fully satis- fied, and an action of trespass was held to lie without proof of malice. The cause of action was the unlawful issue of void process, not the malicious abuse of valid process. 3 Quartz Sai Gold Mining Co. v. Byre (1883), 11 Q. B. D. p. 689, per Bowen, L. J.: "The bringing of an action under our present rules of procedure and under our present law, even if it is brought without reasonable and probable cause and with malice, gives rise to no ground of complaint." SECT. 157] MALICIOUS PROSECUTION. 537 (h) He must have acted without reasonable and probable cause; (c) He must have acted maliciously; {(1) In certain classes of cases the proceedings must have been unsuccessful — that is to say, must have ter- minated in favour of the plaintiff now suing. We shall deal with these requirements in their order. •3 . The proceedings complained of by the plaintiff must Institution uf have been instituted by the defendant — that is to say, he must bo the person who put the law in motion against the plaintiff . It is not necessary, however, that he should be a party to the proceedings. Thus, an action for malicious abuse of process will lie against the solicitor who in his client's name has set the law in motion against the plaintiff .^o So in the case of malicious prosecution hj way of indictment in the name of the King, the person liable is the prosecutor to whose insti- gation the proceedings are due. Instigating a prosecution is to be distinguished, however, from the act of merely giving information on the strength of which a prosecution is commenced by some one else in the exercise of his own discretion.il 6. Reasonable and probable cause. No action will lie for Want of the institution of legal proceedings, however malicious, unless and probable they have been instituted without reasonable and probable cause, cause. 12 Reasonable and jjrobable cause means a genuine belief based on reasonable gromads that the proceedings are justified. In a criminal prosecution, for example, the pro- secutor must have believed on reasonable grounds that the probability of the guilt of the accused was sufficient to render a prosecution reasonable and justifiable. "I should define reasonable and probable cause," says Hawkins, J., in Ricks V. Faulkner, ^^ "to be an honest belief in the guilt of the accused, based upon a full conviction, founded upon reason- i» Johnson v. Emerson (1871), L. R. 6 Ex. 329; Gilding v. Eyre (1861), 10 C. B. (N. S.) 592. 11 Cohen v. Morgan (1825), 6 D. & R. 8; Fitzjohn v. Machinder (1860), 8 C. B. (N. S.) 78; Dubois v. Keats (1840), 11 A. & E. 329. 12 Willans v. Taylor (1829), 6 Bing. p. 186. 13 (1878), 8 Q. B. D. p. 171. 538 WRONGFUL PliOCESS OF LAW. [cHAP. XVII. able grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed."^* i'' BurdeB of 7 rphe burden of proving the absence of reasonable and probable cause lies upon the plaintiff. It is not for the defendant to prove affirmatively as a defence that reaS'Onable and probable cause existed. If, therefore, there is no suffi- cient evidence of the absence of such cause, judgment must be given for the defendant. ^^ No reasonable g _ There is no reasonable and probable cause unless the cause without 1 1 t honest belief, defendant genuinely and honestly believed that the prosecu- tion or other proceeding complained of was justifiable. " It would be a monstrous proposition that a party who did not believe the guilt of the accused should be said to have reason- able and probable cause for making the charge. "^'^ Even, however, if the defendant honestly believed the proceedings to be justified, there is no reasonable and probable cause unless this belief is based on reasonable grounds. This ques- 1-1 See also Broad v. Ham (1839), 5 Bing-. N. C. 722; Turner v. Ambler (1847), 10 Q. B. 252. 1^ In the phrase reasonable and probable cause the terms reasonable and probable are mere synonyms. This use of the term probable is one of the archaisms of legal diction, and deserves a word of notice. Pro- babilis causa was an expression which was not unknown in classical Latin, and which became familiar in medieval usage. Probabilis means primarily provable — hence capable of being put to the test — Whence reliable, approved, right, good, justifiable, fiu Cange gives as synonyms of jM-obabilis the terms rectus, bonus, approbatus. Similarly the term probatio meant both probation and approbation, both proving and approving. The Digest of Justinian spea,ks of probabilis error (D. 41. 10. 5.) — namely, a mistake which is excusable because based on some reasonable ground, justa causa erroris. In the same sense we read of jtista et probabilis igrwrantia (Just. Inst. 3. 26. 10.). So sententia probabUis means a reasonable opinion (D. 14. 1. 1. 5.). So, coming back to the matter in hand, probabilis causa means a good reason — a ground of action which commends itself to reasonable men. We read in Tacitus, Annals VI. 14: Nullas probabiles causas longinguae pere- grinationis adferebat. See also D. 50. 5. 2. 7: Certis et receptix probabUibus causis. Also C. 6. 21. 4. 2. 16 Abrath v. N. E. My. Co. (1883), U Q. B. I>. 440; 11 A. C. 247. Aliter in an action of false imprisonment. Hicks v. Faulkner (1878), 8 Q. B. D. p. 170. 1' Broad v. Ham (1839), 5 Bins:. N. O. p. 727. See also Heslop v. Chapinan (1853), 23 L. J. Q. B. 49; Turner x. Ambler (1847), 10 Q. B. 252; Willans v. Taylor (1829), 6 Bing. 183. SECT. 157] MALICIOUS PROSECUTION. 539 tiou is to be determined by reference to the facts actually known to the defendant, not to the facts as they actually existed. He who prosecutes when the facts known to him do not constitute reasonable and probable cause cannot defend himself, in an action for malicious prosecution, on the ground that there were other facts unknown to him which would have justified a prosecution. i® Conversely, facts unknown to the prosecutor do not prevent the facts which were known to him from constituting reasonable and probable cause. Having regard, however, to the facts known to the defendant, he must show a reasonably sound judgment and use reason- able care in determining whether there are sufficient grounds for the proceedings instituted by him, and any failure to exhibit such judgment or care will be imputed to him as a want of reasonable and probable cause. i^ 9. The existence of reasonable and probable cause is a Reasonable question for the judge, and not for the jury.^o This rule, question for however, is subject to the qualification that all preliminary the judge, questions of fact on which this ultimate issue depends are for the jury. That is to saj", the jury must find what the facts of the case were, as known to or believed by the defendajit, and then the judge decides whether those facts constituted reasonable and probable cause — viz., whether the defendant IS JDelegal v. Mighley (1837), 3 Bing. N. C. 950; Turner v. Ambler (1847), 10 Q. B. 252. IS The circumstance that the mistake of the defendant is one of law and not of fact does not necessarily amount to proof of want of reason- able and probable cause. The duty of a prosecutor is merely to show due judgment, care, and discretion as to the guilt of the accused in law no less than in fact. PhUlips v. Xaylor (1859), i H. & N. 565. As to the protection afforded by the opinion of counsel, see Ravenga v. Mackintosh (1824), 2 B. & C. 693. " If a party," says Bayley, J., " lays all the facts of his case fairly before counsel, and acts bond fide upon the opinion given by that counsel (however erroneous that opinion may be), he is not liable to an action of this description." 20 Pantoii- V. Williams (1841), 2 Q. B. 169; Lister v. Ferryman (1870), L. R. 4 H. L. 521. So also in actions of false imprisonment. Mailes v. Marks (1861), 7 H. & N. 56. This anomalous rule was estab- lished as a precaution against erroneous verdicts for the plaintiff — ■ per doubt del lay gents. Reasonable and probable cause was with- drawn from the cognisance of juries, under the pretence that it was a question of law. The old practice was to plead specially the faots' relied on as constituting reasonable and probable cause, and the suffi- ciency of them was determined on demurrer. Pain v. Rochrsier. Oro. Eliz. 871. 540 WRONGFUL PROCESS OF LAW. [CHAP. XVII. showed reasonable care and judgment in believing and acting as ho did. Thus, if the defendant alleges that he prosecuted the plain- tiff because of certain information received from a third person, it is for the jury to say whether that information was really received by the defendant and whether it was really believed by him, and it is for the judge to decide whether, if it was so received and believed, it constituted a reasonable ground for the prosecution. -^ This division of functions between judgd and jury may be effected .at the disicretion of the judge in two ways. He may either direct the jury to find the facts speciallj', and then decide for himself on the facits so found whether there was reasonable and probable cause, or he may tell the jury that if they find the facts to be such and such, then there is reason- able and probable cause, and that if they find the facts to^ be otherwise there is none, thus leaving the jury to find a general verdict on this hypothetical direction. 22 2s 21 Paidoit V. Williams (1841), 2 Q. B. 169; Lister \. Perryman (1870), L. E. 1 H. L. 321. 22 Abrath ,. .V. E. Ely. Co. (1883), 11 Q. B. D. at p. 458, pei- Bowett, L. J. -■^ In some cases the question has been left to the jury whether the defendant took reas-onable care to ascertain the facts. Abrath \ . N . E. My. Co. (1883), 11 Q. B. D. 79; 11 A. C. 247; Brown v. Ilaivlccs, (1891) 2 Q. B. 718. It is submitted, liowever, that this is an essential portion of the very question which is to be answered by the judge, and not a mere preliminary question to be answered by the jur}'. To leave such a question to the jury is to give them concurrent and equal power with the judge in deciding the question of reasonable and probable cause. As is pointed out by Cave, J., in Brown v. Hatokes, (1891) 2 Q. B. p. 720: " If such a question is to be put in every case, the result will be to transfer the decision of the question of what is reasonable: and probable cause from the judge to the jury, except when the judge holds that there is an absence of such cause." If, for example, the. prosecutor acted on ijiformation received, which, if true, proved the guilt of the accused, the question whetlier this amounted to reasonable and probable cause is identical with the question whether the prosecutor used due care in verifying that information, and it seems impossible to maintain that the first question is for the judge and the second for the jury. It is submitted that it is impossible to distinguish the question whether the defendant showed reasonable care and judgment in ascer- taining the facts, from the question whether he showed reasonable care and judgment in estimating the significance of the facts known to him, and that both questions are equally for the judge. See Abrath V. A'. E. Rly. Co. (1886), 11 A. C. at p. 2.54, per Lord Bramwell. Of. however, Quart: Hill Consolidated Gold Mining Co. v. Ei/re (1884), 50 L. T. 274. SECT. 157] MALICIOUS PROSECUTION. 541 10. Malice. No action will lie for the institution of legal Malice. proceedings, hjowever destitute of reasonable and probable cause, unless they are instituted maliciously — that is to say, from some ■\\iongful motive. 21 Malice and absence of reasonable and probable cause must unite in order to produce liability. So long as legal pirocess is honestly used for its proper purpoije, mei"e negligence or want of sound judgment in the use of it creates no liability ; and, oonvorsely, if there are reasonable grounds for the pixx>eedings (for example, the probable guilt of an accusied person) no impropriety of motive on the part of the person instituting these proceedings is in itself any ground of liability. Alalice means the presence of some improper and wrongful motive — that is tO' say, an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. " Malice, in its widest and vaguest sense, has been said to mean any wrong or indirect moti\e; and malice can be proved either by showing what the motive was and that it was wrong, or by showing that the circum- stances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the pro- secutor. "^^ The proper motive or purpose of a prosecutor is to secure tlie punishment of a person whom he believes to be guilty of a crime, and thereby to procure for himself and others the benefit and protection of the criminal law. Malice in such a case means "some other motive than a desire to bring to justice a person whom he honestly believes to be guilty. "^^ A prosecution is malicious only if it is animated by a desire to use the criminal law for some purpose for which it is not intended: for example, the conviction or defamation of an innocent man, the levying of blackmail, the coercion of the accused in respect of some unconnected matter, the obtaining 2* Willana v. Taylor (1829), 6 Bing-. p. 186. 25 Brown v. Etmkea, (1891) 2 Q. B. at p. 722. See also Mitohell y. Jenkins (1833), 5 B. & Ad. at p. 595. Abrath v. N. E. Bly. Co. (1883), 11 Q. B. D. p. 455. 26 Brown v. Eawhes, (1891) 2 Q. B. p. 723, per Gave, J. 642 WRONGFUL PROCESS OF LAW. [CHAP. XVII. Burden of proof. Evidence of malice. of compensation or restitution from the accused (the civil law, not the criminal, being the appropriate instrument for this purpose). A prosecution is not malicious merely because inspired by anger for the injury suffered. " It may, I think, be assumed," says Cave, J., in Brown v. HawJces,^"^ "that the defendant was angry ; but so far from tliis being a wrong or indirect motive, it is one of the motives on which the law relies to secure the prosecution of offenders against the criminal law." 11. The burden of proving malice lieson the plaintiff; and, subject to two qualifications, the question is one for the jury and not, like that of reasonable and probable cause, one for the judge. 28 The first of these qualifications is that the question whether any particular motive is a proper or im- proper motive for the proceeding in question is a matter of law for the determination of the judge. Malice is any motive of which the laiv disapproves, not any motive whioh is displeasing to a jury. The jury has merely to decide whether the motive exists. The second qualification is that tliere must be some reasionable evidence of malice, otherwise the case will be Avithdrawn from the jury.29 Want of reasonable and probable cause is itself in certain cases sufficient evidence of malice to go to a jury. For " there may be such plain want of reasonable and probable cause that the jury may oome to the conclusion that the prosecutor could not honestly have believed in the charge he made, and in that case want of reasonable and probable cause is evidence of malice. "3° Nevertheless, a jury is not at liberty in all cases to infer malice from want of reasonable cause. Want of reasonable cause is sufficient evidence of malice in those cases only in which it is sufficient evidence that there was no genuine belief in the accusation made. If it appears that there was such a belief, the plaintiff must produce some independent evidence of malice, and cannot 2' (1891) 2 Q. B. p. 722. 28 Mitchell V. Jenkins (1833), 5 B. & Ad. 588. 29 Bmon V. Haiokes, (1891) 2 Q. B. 718. so Ibid. p. 723. SECT. 157] MALICIOUS PROSECUTION. 543 rely on tlie absence of reasonable oause.^^ On the other ba-nd, malice is never evidence of want of reasonable cause. " Fix)m the most express malice, the want of probable cause cannot be implied. "^2 Foi a prosecutor may be inspired by malice and yet have a genuine and reasonable belief in the truth of his accusation. 12. Termination of the proceedings in favour of the plain- Termination tiff. No action for a malicious prosecution, or for any other °n favom- of ^* malicious proceeding which involves a judicial decision of the plaintiff, any question at issue betweai the parties, will lie until or unless the prosecution or other proceeding has terminated in favour of the person complaining of it. No person, for example, who has been convicted on a criminal charge can sue the prosecutor for malicious prosecution, even though he can prove that he is an innocent man, and that the accusa- tion was a malicious and unfounded one.33 Even if the pro- secution or other proceeding is still pending, the same rule applies. "It is a rule of law that no one shall be allowed to allege of a still depending suit that it is unjust."^* If the prosecution has actually determined in any manner in favour of the plaintiff, it matters nothing in what way this has taken place. There need not have been any acquittal on the merits. What the plaintiff requires for his action is not a judicial determination of liis innocence, but merely the absence of any judicial determination of his guilt. Thus, it is enough if the prosecution has been discontinued, ^5 or if the accused has been acquitted by reason of some formal defect in the indictment, ^^ or if a conviction has been quashed for some technical defect in the proceedings. ^^ 13. This rule that the proceedings must not be still -^Uterm pending, but must have terminated in favour of the plain- involving no tiff in the subsequent action, applies not only to malicious Judicial ^ ' J. ir ./ decision. 31 Ibid. p. 718. 32 Johnstone v. Sutton (1786), 1 T. E. p. 544. 33 Basebe v. Matthews (1867), L. R. 2 O. P. 684; Castrique v. Behrens <'1860), 3 E. & E. 709. 3i Gildinff V. Eyre (1861), 10 O. B. (N. S.) p. 604. 35 WatkiMS V. Lee (1839), 5 M. & W. 270. 36 Wiehs V. Fentham (1791), 4 T. R. 247. 37 See Johnson v. Emerson (1871), L. R. 6 Ex. at p. 394. 544 WEONGFUL PROCESS OF LAW. [CHAP. XVII. prosecution, but to all malicious proceedings which involve the judicial determination of any question at issue. Thus, no action will lie for maliciousily procuring the plaintiff to be adjudicated a bankrupt, until and unless the adjudication bas been set aside. ^^ But the rule does not apply to pro- ceedings which involve no such judicial decision. Thus, in Gilding v. Et/ne^^ it was held that an action would lie for maliciously issuing a, ca. sa. for a larger sum than remained duo on the judgment, and that it was unnecessary to show that the execution had been set aside. The plaintiff in in- stituting his action for such a cause raised no question which had already been decided against him in a Court of justice.*" No liability for procuring an erroneous decision. § 158. Erroneous and Irregular Proceedings. 1. Having considered the liability of litigants for the malicious abuse of legal process, it remains to consider how far they are responsible for mere errois and irregularities of procedure in the absence of any malice. 2. 'No action will lie against any person for procuring an erroneous decision of a Court of 'Justice. This is so even though the Court has no jurisdiction in the matter, and although its judgment or order is for that or any other reason invalid. A Court of Justice is not the agent or servant of the litigant who sets it in motion, so as to make that litigant responsible for the errors of law or fact which the Court commits. Every party is entitled to rely absolutely on the presumption that the Court will observe the limits of its own jurisdiction and decide correctly on the facts and the law. Thus, in Lock v. Ashtori^ the defendant had wrongly, though honestly, arrested the plaintiff and charged him with an offehce before a magistrate, who thereupon remanded him in custody. It was held that, although the defendant 88 Metropolitan Bank v. Poolei/ (1885), 10 A. C. 210. See also Suffer . Allen (1866), L. R. 2 Ex. 15. ^ (1861), 10 O. B. (N. S.) 592. *» See also Stewart v. Gromett (1859), 7 O. B. (N. S.) 191. 1 (1848), 12 Q. B. 871. SECT. 158] ERRONEOUS PROCEEDINGS. 545 was liable for the original arrest (as being his own wrongful act), he was not responsible for the subsequent remand, which was merely an erroneous act of the magistrate. In Brown V. Chaptnan? it is said: "If an individual prefers a com- plaint to a magistrate, and procures a warrant to be granted, upon which the accused is taken into custody, the com- plainant in such case is not liable in trespass for the imprisonment; and that even though the magistrate has no jurisdiction. . . . The imprisonment is referred to the magistrate's authority, so as to exempt the complainant from all liability in trespass. "^ 3. No action will lie against any person for issuing execu- No liability tion or otherwise acting in pursuance of a valid judgment or erroneous °" order of a Court of Justice, even though it is erroneous, and decision, even though it is afterwards reversed or set aside for error. A valid judgment, however erroneous in law or fact, is a sufficient justification for any act done in pursuance of it. The remedy of an aggrieved litigant is some form of appeal whereby the judgment may be reversed or set aside, not an action for damages against those who enforce or act on the judgment while it stands. Thus, in Williams v. Smith^ the defendant was held not liable for imprisoning the plaintiff on a writ of attachment which was subsequently set aside on appeal. "Where he relies upon the judgment of a competent Court, however erroneous that judgment may be, the party acting upon the faith of it ought to be protected."'' "The party causing process to be issued is not responsible for anything that is done under it where the process is afterwards set aside, not for irregularity, but for error. "^ So in Smith v. Sydney'^ the defendant had obtained judgment by default against the plaintiff for a larger sum than was actually due, and had 2 (1848), 6 C. B. p. 376. 3 S«o also West v. Small-wood (1838), 3 M. & W. -118; Austin v. Dowliny (1870), L. B. 5 O. P. 534. i (1863), 14 C. B. (N. S.) 596. ^ ij^ig, p. 625. 6 Ihid. p. 623. ^ (1870), L. E. 5 Q. B. 203. s 35 546 WRONGFUL PROCESS OI*' LAW. [cHAP. XVII. Aliter with the execution of process which is invalid. Void and voidable process. issued execution. The judgment was set aside, and the plaintiff thereupon sued the defendant for damages. It was held that there was no cause of action . 4. If any litigant executes any form of legal process which is invalid for want of jurisdiction, irregularity, or any other reason, and in so doing he commits any act in the nature of a trespass to person or property, he is liable there- for in an action of trespass, and it is not necessary to prove any malice or Avant of reasonable or probable cause. This is an application of the fundamental principle that mistake, however honest or inevitable, is no defence for him who intentionally interferes with the person or property of another. A supposed justification is no justification at all. A litigant Avho effects an arrest or seizes property must justify the trespass by pleading a valid execution of legal process, and any irregularity or error Avhich has the effect of making the |)rocess invalid will deprive him of all justi- fication. Thus, in Painter v. Liverpool Oil Gas Light Co.^ Justices of the Peace, on the application of the defendants, issued a warrant of distress without jurisdiction, and were held liable in damages. So in Brooks v. Hodgkinson^ the defendant, having obtained judgment against the plaintiff for less than £20, arrested him under a writ of ca. sa. issued in disregard of the statute which took away the writ in the case of judgments below that amount, and he was held liable in an action of false imprisonment. 5 . When it is sought to hold a litigant thus liable for the execution of invalid process, a distinction is to be drawn between process which is wholly void and process which is merely voidable. Process which is void is no defence at all, and an action will lie without taking any steps to set it aside. 10 But when process is merely voidable, it is a suffi- cient justification until it has been set aside; though when it has been set aside it becomes void ab initio, and an action will thereupon lie for acts done in pursuance of it. " Thet s (1836), 3 A. & E. 433. 10 Ibid. (1859), 4 H. & N. 712. SECT. 159] MAINTENANCE. 547 process when set aside is as if it had never existed, and . . . the party therefore cannot justify under it."ii § 159. Maintenance. 1. To procui-e any person, by means of pecuniary assist- ^[aintenance ance given to him for that purpose, to institute or carry on '^^'^"^d. civil proceedings against another is, in the absence of lawful justification, a wrong actionable at the suit of that other— namely, the wrong of maintenance. Thus, in Bradlatigh v. J^ewdegate^ the plaintiff had been unsuccessfully sued in a former action brought by one Clarke for the recovery of the statutory penalty for sitting and voting in Parliament without having taken the necessary oath. Clarke was a person of no means, and was unable to pay the plaintiff's costs. The action had been instigated and pro- cured by the defendant Newdegate, who had supplied the necessary funds and had given Claxke a guarantee against all expenses. It was held that the plaintiff was entitled to recover from the defendant, on the ground of unlavsrful main- tenance, all the costs which he had incurred in the action brought against him by Clarke. So in Alabaster v. Harness^ the defendant provided the funds for an action for libel brought by a third person against the plaintiff. The action failed, and the plaintiff was held entitled to sue the defendant for maintenance, and to recover as damages all the costs of the libel action. 2. The doctrine of maintenance applies solely to the Prooeedmj?s instigation of civil proceedings. To set the criminal law in ™^*™g^jl motion is the right of every member of the public, and is 11 Codrington v. Lloyd (1839), 8 A. & B. p. 453. See Middell v. Pakeman (1835), 2 O. M. & R. 30; BUnchenay v. Burt (1843), 4 Q. B. 707. Whether any particular irregularity makes process whoUy void or only voidable is a question pertaining to the details of the pro- cedure of the Court in question. As to the High Court, see Order 70, Rule 1. ^ ^ 1 (1883), 11 Q. B. D. 1. 2 (1895) 1 Q. B. 339. 35(2) 548 WRONGFUL PROCESS OF LAW. [CHAP. XVII. Justification for mainten - ance. Charitable motives. Maintaining a defendant. not actionable unless those conditions of liability exist which are required, by the law of malicious prosecution.^ 3. It is a sufficient justification for what would otherwise be unlawful maintenance, that the defendant has or believes himseH to have some lawful interest in the subject-matter of the suit maintained by him. Thus, co-owners of property, or a landlord and his tenant, may maintain one another in the defence of their common interests. Maintenance is the offence of promoting litigation with which one has no concern.* 4. It is also a sufficient justification that the defendant was actuated solely by charitable motives — i.e., by a desire to assist a poor man to obtain justice that would otherwise be beyond his reach. If this was his honest purpose, there is no actionable maintenance, even though there was no reason- able and probable cause for bringing the action which he thus instigated. 5 5. There may be other justifications for maintenance in addition to the two already mentioned, but it is impossible to ssij what they are. The modern law of maintenance is the atrophied survival of what in earlier days was a far-reaching and important branch both of the civil and criminal law, and wo cannot say with certainty how much of the old doctrine is still living and operative . The older authorities are no longer to be relied upon, and modern authority is scanty. 6 . It is said in the old books that it is maintenance to assist the defence of an action, as well as to procure the institution of one, but there is no modern example of this form of the wrong. ^ 3 Grant v. Thompson (1895), 72 L. T. 264. ^ Findon v. Parker (1843), 11 M. & W. 675; Guy v. Churchill (1888), 40 Ch. D. 481; Bradlaugh v. Newdegate (1883), 11 Q. B. D. at p. 11; Alabaster v. Earness, (1895) 1 Q. B. 339; British Cash ^ Parcel Con- veyors, Ltd. V. Lamson Store Service Co., (1908) 1 K. B. 1006; Scott v. National Society for the Prevention of Cruelty to Children (1909), 25 T. L. R. 789; Oram v. Hutt, (1914) 1 Ch. 98. 5 Harris v. Briscoe (1886), 17 Q. B. D. 504; Holden v. Thompson, (1907) 2 K. B. 489. 6 Coke, 2 Inst. 212: "Maintenance is an unlawfxxl upholding of the demandant or plaintiff, tenant or defendant, in a cause depending in suit, by word, writing, countenance, or deed." SECT. 159] MAINTENANCE. '549 7. It is possible that other forms of assistance than pecu- instigating • II- 11 prooeediDgs niary help may amount to actionable maintenance, but therei is not main- is no modern authority on the point. It has been decided, *®'^"''*- however, that the mere act of "procurmg or instigating the bringing of an action does not amount to maintenance.'' ^ ^ ' Flight V. I,eman (1843), 4 Q. B. 883. The distinction sug^ted in this case between assisting the commencement of litigation and aaSsting the continuance of it has nothing to recommend it in principle, and has been disregarded in subsequent cases. Alabaster v. Sarness, (1895) 1 Q. B. 339. 8 For the older law as to the offence of maintenance reference may be made to Bacon's Abridg. sub voo. Maintenance. 8 Probably actual damage is essential to a cause of action for main- tenance, but there is no authority on this point. See British Cash # Parcel Conveyors, Ltd. v. Lamson Store Service Co., (1908) 1 K. B. 1006, p. 1012; Oram v. Butt, (1914) 1 Oh. 98, p. 107. 550 ,CHAPTEE XVIII. RESIDUARY FORMS OF INJURY. 160. Inducement of Breach of Contract. Induoing a breach of contract is a tort. Advice distinguished from induce- ment. 1. Intentionally and without lawful justification to induce any one to break a contract made by him with another is a tort actionable at the suit of that other, if damage has resulted to him.^ " A violation of legal right committed knowingly is a cause of acftion, and . . . it is a violation of legal right to interfere with contractual relations recog- nised by law, if there be no sufficient justification for the interference. "2 This may be termed the rule in Bowen v. Hall,^ this being the first case in which it was definitely formulated as a general principle. The authority in this case was doubted in Allen v. Flaod,^ but has been definitely established by Quinn v. LeatheirJ' and South Wales Miners' Federation v. Glamorgan Coal Co.^ In this last case damages were recovered by employers of labour against a trade union which had induded the plaintiffs' workmen to discontinue their work in breach of their contracts.'^ 2. Is a person liable under this rule who merely advises a breach of contract, and in this wide sense may be said to induce it? Or is the term induoement used in a narrow sense to exclude m^ere advice? This is a question which 1 As to proof of damage in suoh cases, see Exclumge T elegraph Co. V. Gregory § Co., (1896) 1 Q. B. 147; BoUsoll v. Goldman, (1914) 2 Oh. 603. 2 Quinn v. Leathern, (1901) A. C. at p. 510, 'per Lord Macnaghteu. s (1881), 6 Q. B. D. 333. See also Lumley v. Gye (1853), 2 E. & B. 216. 4 (1898) A. C. 1. s (1901^) A. C. 495. 6 (1905) A. O. 239. See also Read v. Friendly Society of Stone- masons, (1902) 2 K. B. 732; National Phonograph Co. v. Edison BeU Consolidated Phonograph Co., (1908) 1 Ch. 335. ' But see now the Trade Disputes Act, 1906, s. 3. SECT. 160] INDUCEMENT OF BREACH OF CONTRACT. 551 cannot be definitely answered as the authorities stand. On principle it is submitted tliat mere advice is not actionable: as when a parent advises his daughter (o break an engag^e- ment of mairiage, or a physician advises a patient to break a contract of service for his health's sake. Thei'e must bo an inducement in the strict sense — that is to say, the inten- tional creation of some inducing cause or reason for the breach of contract: for example, to induce a servant to leave his employment by aji offer of higher wag'os, or hj a threat to inflict some liai-m upon him, legal or illegal, if he con- tinues in it. To induce a breach of contract means to create a reason for breaking it; to advise a breach of contract is to point out the reasons which abeady exist. The former is certainly actionable; the latter has never been held to be so, and is probably innocent.^ 3. Malice, in the sense of improper motive, is not an essen- Malice tial element in this cause of action. ^ It is sufiicient that tire breach of contract is induced knowingly and wilfully, and the reasons which animate the defendant are irrelevant . No jury is at liberty to find a verdict for the defendant because in theii' opinion he was inspired by no improper motive in doing what he did. "No one," it has been said,i° "can legally excuse himself to a man of whose contract he has procured the breach, on the ground that he acted on a wrong understanding of his own rights, or without malice, or bond fide, or in the best interests of himself, nor even that he acted as an altruist, seeking only the good of another and careless of his own advantage." 4. To induce a breach of contract is not actionable if there Lawful is in the circumstances of the case a legal justification for the ■'"^*' "^ '°'^' 8 The question is diaeussed in South Wales Miners' Federation \. Glamorgan Coal Co., (1905) A. C. 239, a case, howevei-, in which tlie Court came to the conclusion that the act of the defendant was more than mere advice. 9 See Quinn v. Leathern, (1901) A. C. p. 510, -per Lord Macnaghten; Read v. Friendly Society of Stonemasons, (1902) 2 K. B. 732; South Wales Miners' Federation v. Glamorgan Coal Co., (1905) A. 0. 239. 10 Read v. Friendly Society of Stonemasons, (1902) 2 K. B. at p. 96, per Darling, J. 552 RESIDUARY FORMS OF INJURY. [CHAP. XVIII. Inducing breach of non-oon- traotual obligation. Exception in case of trade disputes. induccmcnt.il What amounts to a j ustifioation is a question of Law, to which as the authorities stand no answer can be given. Presumably it Avould be a good justification if, in inducing a breach of contract made by A with the plaintiff, the defendant was doing nothing more than insisting on the performance of another and inoonsistent contract previously made between himself and A.^^ 5 . Presumably this rule of liability extends not merely to the inducement of breaches of contract, but also to the in- ducement of the breadh of any obligation, ^^ whether con- tractual in its origin or not: for example, the obligation which arises out of a judgment. There is, however, no authoritjr on the point. 6. An exception to the rule in Bowen v. Hall has been established by section 3 of the Trade Disputes Act, 1906, which provides that " an act done by a person in contempla- tion or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment.'"^ The purpose of this enactment is to facilitate strikes by exempting those who instigate them from the necessity of respecting the contractual rights of the employers. Damage caused by breach of statutory duty is prima facie actionable § 161, The Breach of Statutory Duties. 1. The breach of a duty created by statute, if it results in damage to an individual, is prima facie a tort, for which an action for damages will lie at his suit. The question, however, is in every case one as to the intention of the Legis- lature in creating the duty, and no action for damages will 11 South Wales Miners' Federation v. Glamorgan Coal Co., (1905) A. C. 239; Quinn v. Leathern, (1901) A. 0. p. 510; Smithies v. Xotiomil Association of Operative Plasterers, (igog) 1 K. B. 310. 12 Read v. Friendly Society of Stonemasons, (1902) 2 K. B. p. 95; Smithies v. National Association of Operative Plasterers, (1909) 1 Iv. B. 310. 13 The term obligation is here used in its strict sense to mean a duty lying on a determinate individual. To induce the breach of a duty lying on persons in general is equivalent to committing a breach of that duty oneself. Qtn facit per qlium faoit per se. Ij'*' ^ Ar'n't V ^'iw Si LoVi , Ti^^ , Ji-Ji h-^r /')io , Ca. SECT. 161] BREACH OF STATUTORY DUTIES. '553 lie if, on the true construction of the statute, tlie intention is that some othesr remedy, civil or criminal, shall be the only one available. Prima facie a statute which creates a duty creates at the same time a correlative right vested in the individuals for whose protection and benefit that duty has been imposed, and prima facie, therefore, those persons will have the ordinary civil damag-es for the enforcement of that right — namely, an action for damages in respect of any loss occasioned by the violation of it. Thus, in Groves v. Wimborne'^ the de- fendant, a manufacturer, was held liable in damages to one of his servants, who had sustained personal injuries through failure of the defendant to perform his statutorj^ duty of fencing dangerous machinery. " It cannot be doubted," says Vaughan Williams, L. J.,- "that where a statute pro- vides for the performance by certain persons of a particular duty, and some one belonging to a class of persons for whose benefit and protection the statute imposes the duty is injured by failure to perform it, prima facie and if there be nothing to the contrary, an action by the person so injured will lie against the person who has so failed to perform the duty." Similarly, in Couch v. SteeP it was held by the Court of Queen's Bench that the plaintiff, a sailor, had a good cause of action against the owners of the ship for injuries suffered by him in consequence of their failure to keep on board a supply of medicines in accordance with the provisions of the Merchant Shipping Act. It is true that the judgment in this case lays down a rule which is much too absolute and general, and which cannot be supported in view of later decisions, and for this reason the case has been the subject of :adverse criticism.* But there seems no sufficient reason to doubt that the actual decision in Couch v. Steel is correct. ^ 1 (1898) 2 Q. B. 402. 2 (1898) 2 Q. B. p. 415. 3 (1854), 3 E. & B. 402. * Atkinson v. Newcastle Waterworks Co. (1877), 2 Ex. D. 441; Cowley V. 'Newmarket Local Board, (1892) A. 0. p. 352. 5 See also Bavid v. Britannia Merthyr Coal Co., (1909) 2 K. B. 146; (1910) A. C. 74. 554 RESIDUARY FORMS OF INJURY. fCHAP. XVIII. But this depends on the intention of the Legis- lature. Atkinson ' . Newcastle Waterworks Co. 2. NotTvitlistanding the general rule, however, there are many cases in which no action for damages will lie in respect of injuries caused by the breach of a statutory duty. For there is no such remedy unless the Legislature, in creating the duty, intended that it should be enforceable in this way; and there are at least two other alternatives. In the first place, the intention may be that there ehall be no civil remedj^ available for an injured individual at all. The statutory duty is then a duty towards the public at large, and not towards individuals, and the correlative right is vested in the public and not in private persons, even though they may suffer special damage. The duty in such a case is to be en- forced by way of a criminal prosecution, or by way of in- junction at the suit of the Attomey-G-eneral, or in some other manner appropriate to the maintenance of a public right, and not by way of a private action for damages. In the second place, the Legislature, even while recog- nising a private right vested in the injured individual, may intend that it shall be maintained solely by some special remedy provided for the particular case, and not by the ordinary method of an action for damages. Thus, a pecu- niary penalty recoverable by the injured party, either in criminal proceedings or in a penal action, may be established by the statute as the sole remedy available for the breach of it. Thus, in the leading case of Atkinson v. Newcastle d~ Gateshead Waterworks Co.^ it was held by the Court of Appeal, reversing the decision of the Court of Exchequer, that the defendant company was not liable in damages for the destruction of the plaintiff's house by fire, although its destruction was directly due to the failure of the defendants to perform the duty laid upon them by their private Act of Parliament to maintain a certain pressure of water in tbpir water-pipes for the purpose of extinguishing fire. The statute in question provided that any breach of this duty, should be an offence punishable by a fine of ten pounds, 6 (1877), 2 Ex. D. 441. SECT. 161] BREACH OF STATUTORY DUTIES. 555 and the Court came to the conclusion that on the true inter- pretation of the statute the intention of the Legislature was that this should be the sole remedy available, and that there was no intention of imposing on the waterworks company any such heavy civil liability as the opposite interpretation would have subjected them to. Cockburn, C. J., says:'' " I entirely agree with the Lord Chanoellor in the conclusion at which he has anived, that the particular Act which we liave now before us does not by implication give to persons who may be injured by the breach of the duties thereby imposed any remedy over and above those wh^ch it gives in express terms. If, therefore, any person is injured by a breach of such duty, he must have recourse to the statutory remedy, and cannot maintain an action for damages." So in Vallance v. Falle^ it was held that no action would lie for the refusal of a sea-captain to give a seaman his certi- ficate of discharge in pursuance of the requirements of the Merchant Shipping Act, 1854. The Act provided for such a breach of duty a penalty of ten pounds, the whole or any part of which might be ordered to be paid to the informant by vfaj ol compensation, and the Court came to the conclusion that this remedy was meant to be exclusive, and not concurrent with an action for damages. In Saunders v. Holborn Dis- trict Board of Works^ it was held that the plaintiff had no remedy by action against the local sanitary authority for injuries caused through its failure to perform its statutory duty of removing snow from the streets. So also it is settled, as we have already seen,!" that no action will lie against local authorities for injuries caused through a failure to perform their statutory duty of keeping highways in repair. ii 3. An action for damages will not lie at the suit of an Limits of injured person if he is not one of the persons for whose pro- breaoh'of "'^ 7 Ibid. p. 449. 8 (1884), 13 Q. B. D. 109. ^ (1895) 1 Q. B. 64. Cf., however, Guardians of Holborn Union v. Vestry of St. Leonards (1876), 2 Q. B. D. 145. 10 Supra, s. 93. 11 So in Davis v. Bromley Corporation, (1908) 1 K. B. 170, it was held that no action lies against a municipal corporation for refusing to exercise its statutory power of approving building plans, oven though the refusal is malicious. 556 RESIDUARY FORMS OF INJURY. [CHAP. XVIII. statutory duty. Action for damages may be excluded by special statutory remedy. tection and benefit the statute was passed, or if the damage suffered by him is not of the kind intended to be guarded against. In Gorris v. ScoW^^ the plaintiff sued the defen- dant, a shipowner, for the loss of sheep which had been swept overboard in consequence of the failure of the defendant to supply certain pens and other structures on the deck of his ship, for the accommodation of sheep, as required by Act of Parliament. It was held, however, that the defendant was not liable, because the purpose of the statute in question was to make provision against the spread of contagious disease among animals, and not to prevent such accidents as the plaintiff complained of. "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. "13 4. Where a statute simply creates a new duty without expressly providing any remedy for the breach of it, the appropriate remedies aie prima facie an indictment as for a misdemeanour in respect of any injury to the public, and an action for damages in respect of any special damage suffered by an individual. But where a special remedy is expressly provided it becomes a question whether this was not intended to be the only one, and to exclude by implication any resort to the common law. "Where in a statute of this kind," says Vaughan Williams, L. J., in Oroves v. Wimborne,'^^ " a remedy is provided in cases of non-performance of the statutory duty, that is a matter to be taken into consideration for the purpose of determining whether an action will lie for injury caused by non-performance of that duty, or whether the Legislature intended that there should be no other remedy than the statutory remedy ; but it is by no means conclusive, or the only matter to be taken into consideration for that purpose." The weight to be attributed to this consideration will depend largely on whether the statutory remedy does or 12 (1874), L. R. 9 Ex. 125. " (1898) 2 Q. B. p. 416. 13 Ibid. p. 128. SECT. 161] BREACH OF STATUTORY DUTISIS. 5o7 does not involve compensation to individual persons injured. Thus a pecuniary penalty payable wholly to the Crown has comparativeh- little significance in excluding an action for damages, but if the" penalty goes or may go in whole or in part to the injured persons, much greater weight may rightly be attached to its existence. In neither case, however, is this consideration conclusive. ^^ 5 . When a duty is created by statute, the breach of which 'f""* '"*" ™ IS an actionable tort, it is a question of construction whether .statutory the liability is absolute, or depends on wrongful intent or '^*'®^' negligence on the part of the defendant. In other words, when a statute provides that a certain thing must be done, it is a question of interpretation whether this means that the thing is to be don© in all events, or merely that the person upon whom the duty is imposed is to use due care and dili- gence in the endeavour to perform it, and that if he fails to perform it through no fault of his, he shall be free from liability. In Hammond v. Vestry of St. Pancras^^ the defendants were held not Liable in the absence of proof of negligeno© for failure to perform their statutory duty of keeping the sewers in order. " It would seem to me," says Brett, L. J.,1'' "to be contrary to natural justice to say that Parliament intended to impose upon a public body a liability for a thing which no reasonable care or skiU could obviate. . . . Where the language used is consistent with either view, it ought not to be so construed as to inflict a liability, unless the party sought to be charged has been wanting in the exercise of due and reasonable care in the performance of the duty imposed." On the other hand, in Groves v. Wimborne^^ it was held that liability for a breach of the statutory duty to fence 15 See, on this matter, Cfrm^es v. Wimborne, (1898) 2 Q. B. 402; Atkinson v. Newcastle Waterworks Co. (1S77), 2 Ex. D. 441; Couch v. Steel (1854:), 3 B. & B. 402; Vallance v. Falle (1884), 13 Q. B. D. 109; David y. Britannic Merihyr Coal Co., (1909) 2 K. B. 146; (1910) 16 (1874), L. K. 9 C. P. 316. " Ihid. p. 322. 18 (1898) 2 Q. B. 402. See also David v. Britannic Merthijr Goal Co., (1909) 2 K. B. 146; (1910) A. C. 74. 558 RESIDUARY FORMS OF INJURY. [CHAP. XVIII. dangerous machinery was absolute, and inde-pendent of any negligence on the part of the defendajit or his servants. Breach of common law obligations a tort. § 162. The Breach of Common-Law Obligations. Most duties created by the common law, apart from con- tract, are negative duties imposed upon persons in general to abstain from various forms of hurtful activity. Occasionally, however, the common law is moved by special considerations to impose upon particular classes of persons positi\'e duties to be fulfiUed for the benefit of others. The breach of one of these common-law obligations is generally a tort actionable at the suit of the person injured thereby. Thus, a common carrier is bound to carry goods for all the members of the public. So an innkeeper is bound to afford the accommoda- tion of his inn to all travellers who desire it. Any carrier^ or innkeeper^ violating his duty in this respect commits a tort against the person whose right he has so infringed. Patents, copyrights, and trade marks. § 163. Injuries to Immaterial Property. Tlie forms of immaterial property known to our law are patents, copyright, registered trade marks, and the various franchises which may be vested in private persons, such as markets and ferries. A violation of any of these rights of property is an actionable tort. The law as to these matters is, however, too special in its nature to call for examination here. 1 Great Western Ely. Co. v. Sutton (1869), L. R. 4 H. L. p. 237. - Lamond v. Sichard, (1897) 1 Q. B. 541. ( 559 ) INDEX. Abatement : of action on death of party, 73 pleas in abatement, 87 Abatement of Nuisance: nature of, 175 entry on land for this purpose, 175 although occupier of land not liable, 176 cutting roots and branches, 175 unnecessary damage, 176 no right of abatement if no right to injunction, 176 right limited to occupier, 176 necessity of notice, 176 nuisance to a highway, 177 AbSOLITTE IiIABILITY: its nature, 14 exceptional, 14 reasons for, 14 kinds of, 15 for inevitable accident, 15 for inevitable mistake, 16 vicarious, 17, 79. See Vicarious Liability excludes defence of common employment, 110 subject to rule of remoteness of damage, 125, 224 for escape of dangerous things from land. See Eylands v. Pletchee for fire, 245—250 for withdrawal of support of land, 276, 277 for danger to highway, 315 — 319 on warranty of safety of premises, 399 on warranty of fitness of chattels sold or bailed, 415 for damage done by animals, 223, 428 — 437 for defamation, 464 for breach of statutory duties, 557 660 INDEX. AccESSio: 368 Accident : inevitable, 15 usually no ground of liability, 15 distinguished from mistake, 16 liability for, in actions of trespass, 15 n. 6 Accord and Satisfaction: made with one joint wrongdoer releases others, 83 a bar to an action on same cause of action, even for further damage accrued, 144 unless a contrary intention manifest, 144 destroys right of election between causes of action in contract or tort, 164 Act op God: an exception to rules of absolute liability, 232 defined, 232—236 escape of animals caused by, 432 Action, Forms of: Assumpsit, 4 n. 2 Trespass and case, 182—185, 207 Trover, 328—337 Detinue, 329—333 Eeplevin, 371 Actions: limitation of, 152 — 157, 359 — 362. See Limitation of Actions Actions, Successive, on same Pacts: only one action on one cause of action, 135 aliter if two distinct rights violated, 136 aliter if two distinct wrongful acts, 136 aliter in continuing injuries, 137 — 139 as to injuries actionable only on proof of damage, 140 successive subsidences of land, 142 successive actions for slander, 144 n. See Continuing Injuries Admiralty: rule as to contributory negligence, 46 — 50. See Con- tributory Negligence Adultery: formerly the ground of action of criminal conversation, 447 damages now recoverable in divorce proceedings, 447 not actionable at suit of wife, 448 accusation of, against a woman, actionable per se, 491 INDEX, 561 Agent. See Principal Air: ownership of air-space, 190 right to, may he acquired as easement, 292 only to building through defined aperture, 292 Aliens: have no remedy for an act of State, 58 unless resident in British dominions, 58 can sue under Fatal Accidents Act, 382 n. 29 AilBASSADORS : not liable in actions of tort, 60 remedy against, merely suspended, 60 Animals : trespasses of, 188 n. 13, 214, 223, 238 whether actionable without proof of damage, 214 n. 3 liability for damage done by game and other animals naturally on land, 227 injury to trespassing animals, 405 liability for purposely attracting animals to enter dangerous premises, 405 n. 3 liability for damage done by, 424 — 435 distinction between damage natural and not natural to species, 424^-426 remoteness of damage, 427 scienter, 425—427, 432 n. 12 dogs, proof of scienter necessary, 426 aliter in certain cases by statute, 426, 436 scienter unnecessary in case of contractual duty, 427 scienter in case of disease, 428 how scienter proved, 428, 429 absolute liability for, 223, 428—437 origin of rule, 428 relation to rule in Rylands v. Fletcher, 430 exemptions from liability for, 432 — 434 contributory negligence, 432 vis major, 432 lawful use of highway, 432 plaintiff a trespasser, 405, 433 volenti non lit injuria, 433 unlawful act of stranger, 433 — 435 s. 36 562 INDEX. Animals — continued pscape of, from highway, 432 who is liable for, 436 who is liable for a dog, 436 continuance of liability after animal's escape, 436 Aeeest. 8ee False Impeisonment, Malicious Peoseoution, and Judicial Peocess Assault: period of limitation, 155 by way of self-defence, 168 against trespasser, 169 in re-entry on land, 171 in retaking of chattels, 173 defined, 382 both a civil and criminal wrong, 384 effect of prosecution on right of action, 384 distinguished from battery, 383 actual violence not necessary, 383 when threats amount to, 383 distinguished from unlawful bodily harm, 384 in self-defence, 168 in prevention of trespass, 169 in re-entry on land, 172 in retaking chattels, 173 Assignment of Hxghts op Action foe Toets: usually illegal and void, 159 even in case of injuries to property, 159 so also with right to damages for breach of contract, 160 exceptions to rule, 160 assignment of property which is the subject of litiga- tion, 160 sale by trustee in bankruptcy, 160 subrogation to insurer, 160 assignment to person having lawful interest, 161 assignment along with property affected, 161 valid assignment enables assignee to sue in his own name, 161 effects of invalid assignment, 161 Assumpsit: history of action, 5 Auotioneee: liability of, 16, 338 INDEX. 563 Bailee: liable both in contract and tort, 3 presumption of negligence when chattel lost or damaged, 34 liability of, for misdelivery, 135, 344 — 349 for keeping goods in wrong place, 135, 347 estoppel of, 351, 357 n. 26 involuntary, liability of, 337 determination of bailment by wrongful act of, 351 recovers full value in trover, 362 — 366 limitation of actions against, 359, 360 right of, for injury suffered through dangerous chattel, 416 gratuitous bailment, 416 liability of. See Conversion See Danqbkous Ohattbls Baitkruptcy Proceedings, Malicious: 535. See Malicious Prose- cution Babe Licensee: 400 — 404. See Occupier op Premises Battery: 382, 383. See Assault Bodily Harm: an actionable wrong, 384, 385 although caused by nervous shock, 384 Bridge: liability for non-repair of, 321 Oabs: liability of owner for negligence of hirer, 92 w. 3 Gabbier: not liable for loss due to act of God, 232 liability for misdelivery, 345 n. 4. See Conversion delivery of dangerous chattels to, 416 action against, for refusal to carry, 558 Cattle. See Animals Chattels : specific restitution of, 367 — 371 restoration of, in lieu of damages, 370 conversion of. See Conversion trespass to. See Trespass to Chattels detention of. See Detinue damage to, not amounting to trespass, 376 loss of, not amounting to conversion, 376 See Dangerous Chattels 36(2) 564 INDEX. Child: contributory negligence of, 39 injury to, when in charge of adult, 46 criminal liability of, 66 liability of, for torts, 66. See Minoes negligence of, 66 liability of parent for, 69 action for physical injury to unborn child, 385 liability for delivery of dangerous chattel to, 416 liability to child entering premises as a bare licensee, 408 liability to child trespassing on premises, 408 See Father Civil Injury: defined, 1 distinguished from criminal, 1 kinds of, which are not torts, 7 CoEECiON. See Intimidation Collisions at Sea: 46 — 50. See OoNTKiBUTOEy Negligence Common Employment: 105 — 110. See Employers' Liability Common-Law Obligations: action for breach of, 558 Competition in Trade: not actionable, 454 CoNFUsio: 368 Consent : legalises act otherwise wrongful, 51 aliter with criminal offences, 51 to grievous bodily harm, 51 to run risk of accidental harm, 51 — 55 distinguished from knowledge, 52 knowledge evidence of, 52 See Volenti Non Pit Injuria Consortium et Seevitium: 446 Conspiracy: 519. See Intimidation Continuing Injuries: defined, 138 successive actions will lie, 137 damages recoverable only up to time of action, 138 damages not recoverable for diminution in value of property due to fear of continuance of injury, 138 INDKX. 565 OONTINTTING Injueies — Continued plaintiff whose title to property accrues after commencement of injury, 139 damages for, in lieu of injunction, 140 include damage due to future continuance, 140, 151 the limitation of actions for, 152 against public authorities, 156 trespass by placing things on land, 137, 184 distinction between continuance of injury and continuance of damage, 188 quaere whether withdrawal of support a continuing injury, 142 nuisance, 211 distinguished from permanent, 325 Contract, Breaoh of: distinguished from tort, 2 — 6 concurrence of breach of contract and tort, 3 — -6 whether actionable as a tort at suit of a third person, 3, 4, 412, 417 when action dies with parties, 74 action for, not assignable, 160 causing death of human being, 379 inducing, 550 — 552 advice distinguished from inducement, 550 malice irrelevant, 551 justification for inducing, 551 exception in trad© disputes, 652 See G-EATTjiTOTJS Contract OONTRIBUTION : between joint wrongdoers, 84 — 86 none in case of wilful wrongdoing, 84 quaere as to other cases, 85 distinguished from indemnity,' 86 between several wrongdoers causing the same damage, 85 under Maritime Conventions Act, 86 OoisraBiBUTOEY Negligence: 35 — 50 its nature, 35 general principle as to, 35 rational basis of rule, 36 how far applicable to wilful wrongs, 37 want of care not amounting to, 38 of children, 39 of adults in charge of, 46 rule in Davies v. Mann, 41 — 44 direct or indirect cause of damage, 44 566 INDEX. OONTEIBUTOEY NEGLIGENCE — continued rule of, formulated, 44 defective formulation of, 42 quaere as to further limitation of general principle, 45 n. 11 of plaintiff's servants or agents, 45 burden of proof of, 40 power of Judge to give judgment for defendant on issue of, 40 and collisions at sea, 46 — 50 Admiralty rule of division of loss, 46—50 subject to rule in Davies v. Mann, 49 not applicable to Patal Accidents Act, 49 in case of injuries by animals, 432 true test of, 43 Oonvbesion: history of the action of trover, 328 — 337 conversion defined by Common Law Procedure Act, 328 trespass, detinue, and trover, 329 early instances of trover, 329 reasons for invention of trover, 330 trover and detinue sur trover, 331 form of declaration in trover, 331 extension of trover to sphere of detinue, 332 detention evidence of conversion, 333, 334 detention not amounting to conversion, 335 actual and constructive conversion, 335 extension of trover to sphere of trespass, 335 every wrongful taking a conversion, 335 — 337 conversion defined, 337 must be act of wilful interference, 337 inevitable mistake no defence, 338 remoteness of damage no defence, 338 need not be to defendant's own use, 339 loss of goods need not be permanent, 340 conversion by wrongful taking, 340 conversion by wrongful detention, 341 — 344 detention must be adverse, 341 demand and refusal necessary, 342 provisional refusal to deliver when title doubtful not conver- sion, 343 failure to deliver not a conversion if delivery impossible, 343 conversion by wrongful delivery, 344 misdelivery by carrier or warehouseman, 345 n. 4 conversion by wrongful disposition, 345 sale without delivery no conversion, 346 INDEX. 567 Conversion — continued conversion by wrongful destruction, 346 residuary forms of conversion, 346 receiving goods from persons liaving no title not a conversion, 347 redelivery of goods so received not a conversion, 348 quaere as to delivery to a third person, 349 conversion by estoppol, 350 trover limited to plaintiffs having right of immediate posses- sion, 352 action by reversioner for a conversion, 353 remittal of reversioner to right of immediate possession, 353 possessory title suflBcient, 354 — 357 measure of damages, 355, 365 continuance of possessory title, 355 — 357 destruction of possessory title, 356 jus tertii, when pleadable, 357 action by true owner after satisfaction made to possessory owner, 357 as between co-owners, 358 limitation of actions for, 359 — 362 successive conversions, 359 — 361 concealed fraud, 360 in case of bailment, 360 title of purchaser, 361 measure of damages, 362 — 366 at suit of possessory owner, 354, 362 at suit of bailee, 362 — 364 surplus damages, 363 case of reversioner, 363 effect of satisfaction to owner, 364 claim by owner, 364 satisfaction to bailee, 364 increase in value, 366 value as at date of conversion, 366 special damages, 366 specific restitution of chattels, 367 — 371 discretionary, 367 power of Court to order acceptance of chattel in lieu of damages, 367, 370 effect of judgment in trover upon title to property converted, 373 OO-OWNEBS: liability of co-owners of land, 79 «. 1 right of action against strangers, 86 568 INDEX. Co-owners — continued formerly must join in one action, 86 non-joinder formerly ground for plea in abatement, 87 can now sue separately, 87 unless Court otherwise orders, 87 release by one destroys cause of action, 87 one cannot sue another for trespass to land, 194 exceptions to this rule, 194 action of account as between, 194, 359 ejectment as between, 204 of chattels, conversion, as between, 358 right of user, as between, 358 OOKPOEATIONS : liability of, 60—64 for whose acts liable, 60 liable even for wilful or malicious injuries, 60 liability of members of, 64 liable for acts ultra vires, 61 liability of, depends on statute by which established, 63 liability of foreign, 64 application of rule of employers' liability to, 96 defamation of, 453 department of Government incorporated, 65 Courts of Justice: liability of, 528—533 superior Courts, 528 not liable even for malicious acts, 528 probably not liable even for excess of jurisdiction, 328 inferior Courts, 529 not liable for malicious acts, 530 liability for excess of jurisdiction, 530 — 533 what amounts to an excess, 531 mistake of law as to limits of jurisdiction, 533 mistake of fact, 533 no liability for error or irregularity within jurisdiction, 531 Justices of the Peace, 531, 533 n. 20 judicial officer acting ministerially, 533 n. 19 liability of parties for erroneous acts of, 544 — 546 procuring erroneous decision, 544 acting on erroneous decision, 545 aliter with execution of invalid process, 546 Covenant not to Sue: 83. See Eelbase Credit: representations as to, 503 INDEX. 569 Criminal Conversation: 447 Crown: not liable for torts, 56 liability ot, under Petition of Eight, 56 liability of servants of, 57 authority of, no defence, 57 Damage: commonly a condition of liability, 8 damnum sine injuria, 8 — 11 injuria sine damno, 11 when not necessary for liability, 11 See Eemotenbss of Damage Damages : the essential remedy for a tort, 2 ordinary, 120, 121 nominal and substantial, 121 general and special, 122 compensatory and exemplary, 123 damnum sine injuria, 124 measure and existence of, 126 from same cause, 135 two causes, 136 for breach of contract, 124 n. 6 in lieu of injunction, 140, 147, 151 Damages, Measure of: under Employers' Liability Act, 113 in trespass to land, 197 — 201 in action for mesne profits, 205 in conversion, 355, 362 — 366 for other injuries to chattels, 366 under Fatal Accidents Act, 380, 381 for seduction, 440 for slander, 491 Damnum Sine Injuria: 8 — 11 Dangerous Chattels: liability for, 415—424 liability of possessor, 393, 415 570 INDEX. Dangerous Chattels — continued liability for delivery of, under contract, 394, 416 sale, 416 hiring, 416 gratuitous loan or gift, 416 distinguished from gratuitous service, 417 agreement of recipient to run all risks, 417 liability for injury to other persons than recipient, 417 — 423 not merely because of breach of contract with recipient, 418 aliter in case of fraud, 419 breach of duty to disclose known dangers, 419 negligent acts of misfeasance, 421—424 liability for delivery of, to children, 424 Death: liability of master for death of servant, 113 causing death of human being not actionable at common law, 378 aliter when caused by breach of contract, 379 action for, by Patal Accidents Act, 379 — 382 who can sue, 379 time for bringing action, 380 damages not assets in deceased's estate, 380 no liability unless deceased had right of action, 380 accord and satisfaction in lifetime, 380 necessity of pecimiary loss, 381 funeral expenses, 381 action for death caused by felony, 382 double right of action in certain oases, 382 insurance moneys, 382 action on behalf of aliens, 382 n. 29 See ExECDTOES Deceit: defined, 494 distinguished from injurious falsehood, 494 by words or conduct, 494 non-disclosures not actionable, 495 exceptions, 495 must be a statement of fact, 496 fact includes everything except promise, 496 -statement of opinion, 496 statement of law, 496 statement of intention, 496 INDEX. 571 Deoett — continued statement must be wilfully false, 497 test of wilful falsehood, 497 recklessness, 498 ambiguity, 498 exceptions to requirement of wilful falsehood, 498 contractual duty, 498 agency, 499 estoppel, 499 physical harm, 500 statutory liability of directors and promoters, 500 intent that statement shall be acted on, 500 need be no intention to cause loss, 501 apparent intent, 501 statement must be actually relied on, 502 negligence of plaintiff no defence, 502 representations as to credit, 503 Lord Tenterden's Act, 503 writing required, 503 signature of agent not sufficient, 503 even in case of corporations, 503 Defamation: injunction against, 146 n. 4 defined, 449 kinds of, Ubel and slander, 449 nature of a defamatory statement, 450 distinguished from injurious statement, 450 distinguished from insult, 461 kinds of defamatory statement, 451 incapacity, 451 insanity, 452 insolvency, 452 certain forms of public opinion not recognised by law, 452 of a corporation, 463 interpretation of defamatory statements, 454 — 456 intention of defendant not material, 465 a question for the jury, 455 but the statement must be reasonably capable of defama- tory meaning, 456 liabiliiy for statements not known to be defamatory, 456 innuendo, 457 ■572 INDEX. Defamation — continued reference to plaintiff, 458 need not be express, 458 must be understood, 455 need not be individual, 458 need not be intended, 459 may be in the alternative, 459 defamation of a class of persons, 459 publication, 460 — 464 defined, 460 to plaintiff himself, 461 by husband to wife, 461 modes of publication, 461 by reports in neivspapers, 461 by dictation to clerk, 461 none, unless defamatory meaning understood, 461 presumed in certain cases, 462 need not be intentional, 462 negligent, 462 without negligence, 463 to clerks of plaintiff or defendant, 463 in exce'ss of privilege, 474 several publications of same libel, consolidation of actions, 463 justification, 464 truth a good defence, 464 aliter in criminal prosecutions, 464 burden of proof, 464 honest mistake no defence, 465 substantial truth sufficient, 465 justification of statements by way of hearsay or rumour, 465 privilege, 466 defined, 466 distinguished from justification, 467 absolute and qualified, 467 instances of absolute privilege, 468 judicial privilege, 468 witnesses, parties, and advocates, 468 relevance of statements, 470 parliamentary privilege, 470 official privilege, 470 reports of judicial proceedings, when absolutely privi- leged, 471 parliamentary papers, 471 INDKX. 57;3- Defamation — continued qualified privilege, 471 nature of, 471 lAalioe requii'ed, 471 negligence not sufficient, 472 wilful falsehood amounts to malice, 472 privilege a question of law, 473 malice a question of fact, 473 burden of proof, 473 evidence of malice, 473 excess of, 474 no publication excessive if reasonably necessary, 474 of agent, 475 instances of qualified privilege, 476 statements in performance of duty, 476, 477 duty to answer inquiriess, 476 volunteered statements, 477 duty of solicitor to client, 477 publication at large, 478 statements in protection of an interest, 478 private interest, 479 public interest, 479 charge of misconduct against pubUc official, 479 distinguished from fair comment, 479 fair comment, 480 — 487 distinguished from statement of fact, 480 — 483 must profess to be comment and not statement of fact,. 481 n. 5, 482 plea of fair comment covers inferences of fact correctly drawn from facts commented on, 481 comment on facts erroneously stated, if those statements of fact are otherwise privileged, 481 what matters may be commented on, 482 matters of public interest, 482 matters submitted to criticism, 483 comment on moral character, to what extent per- mitted, 483—485 meaning of fairness, 485 comment need not be true, 486 must be believed to be true, 486 must not be malicious, 486 fair comment a form of qualified privilege, 486 not unfair because exaggerated, 486 or incompetent, 486 burden of proving unfairness is on plaintiff, 487 must be reasonable evidence of unfairness, 487 574 INDEX. Defamation — continued privileged reports, 488 of judicial proceedings, 471, 488 statutory privilege of judicial reports in newspapers, 471, 488 of parliamentary debates, 489 of proceedings of public meetings, 489 extracts from judicial or official records, 489 notices issued at request of Departments of State, 489 n. 6 slander, 490—493 period of limitation, 155 special damage required, 490 wbat damage sufficient, 490 damage too remote, 490 damage by repetition of slander, 490 measure of damages, 491 when actionable per se, 491 accusation of crime, 491 of uncbastity, 491 imputations on person in way of his business or office, 491 Delegation op Duty: does not exempt from liability, 238 n. 3 Detention op Chattels: 329. See Conversion Detinue: history of this action, 329—333 scope of the action, 332 nature of judgment in, 367 Diligence: in legal usage the opposite of negligence, 25 w. 4 Dieectoes : contribution betv?een, in case of misrepresentation, 85 not responsible for inferior servants of company, 95 liability for misrepresentation, 500 Dispossession op Land: 202 — 208. See Ejectment Distress Damage Peasant: nature of right, 178 not limited to animals, 178 right vested in occupier, 178 no distress where no right of action, 178 no distress unless actual damage, 179 chattels must be seized on the land, 179 INDEX. 575 DiSTBESS Damage Peasant — continued no distress for damage done on former occasion, 180 chattels not to be taken out of personal possession of owner, 180 no right of sale, 180 right of detention till compensation paid, 180 impounding of things distrained, 180 feeding of cattle impounded, 180 distress suspends right of action, 180 refusal to restore things distrained, 181 n. 12, 196 effect of tender, 181 n. 12 subject to rule of trespass ab initio, 196 Dogs. See Animals Drains: damage done by defective, 223 Easements : defined, 259 distinguished from profits, 259 distinguished from leeises, 258 never in gross, 260 ' positive or negative, 260 natural or acquired, 260 how created, 261 not by mere agreement, 261 chief kinds of, 261 new easements of a kind unknown to law cannot be created, 261 right of prospect not an easement, 261 right of privacy not an easement, 262 disturbance of easement a tort, 262 disturbance of de facto easements, 262 Ejectment : history of action of, 202 possessory title sufiicient in, 203 may be joined with claim for mesne profits, 205 as between co-owners, 204 damages in, 205 n. 2 Employeks' Liability: general principle, 90 general conditions of, 91 who is a servant, 91 servant distinguished from independent contractor, 91 gratuitous service, 93 de facto service, 93 576 IXDKX. Employees' JjIaeility— continued temporary service, 93 service as between father and child, 93 concurrent service with different masters, 93 servant lent, 93 — 95 superior servant not responsible for inferiors, 95 servants of Crown not responsible for their subordinates, 95 public bodies responsible for their servants, 96 but not for all officials appointed by them, 96 m. 19 course of employment, 96 — 104 prohibition of act, no defence to master, 98 excess of servant's authority, 99 act done by servant on his own behalf, 100 — 104 wilful wrongdoing by servant, 99 theft by servants, 100 servant's unauthorised use of master's property, 101 servant's negligence contemporaneous with employment but not in course of it, 102, 103 permission distinguished from employment, 104 rule of common employment, 105 — 110 statement of rule, 105 reason of rule, 105 conditions required, 106 applies to children, 106 who are fellow-servants, 106 — 109 what is common employment, 108, 109 master responsible for his own negligence, 109 not applicable to breach of absolute statutory duty, 110 Employers' Liability Act, 1880.. .110—112 establishes exceptions to rule of common employment, 110 statement of exceptions, 110 servant may contract himself out of, 112 notice of action, 112 period of limitation, 112 action to be in County Court, 112 maximum damages, 112 who are workmen within the Act, 112 concurrent liability at common law in certain cases, 112 liability for death of workmen, 113 Eeboneous Legal Pkoceedings: litigant responsible for acts of his solicitor, 93 litigant not liable for procuring erroneous judicial decisions, 390, 544 even though Court exceeds its jurisdiction, 390, 544 INDEX. 577 Erroneous Leqal Proceedings — continued no liability for executing valid judgment, even though, after- wards set aside, 545 aliter if judicial process void for want of jurisdiction or any other reason, 646 distinction between void and voidable process, 546 Estoppel: conversion by, 350 of a bailee, 361 a ground of liability for negligent misrepresentation, 499 ExEOUTiON. See Malicious Prosecution and Judicial Process Executors : at common law cannot sue or be sued for torts, 73 nor for breach of contract not causing pecuniary damage, 74 action for a tort abates unless verdict obtained in joint lifetime of the parties, 74 exceptions to rule, 74 — 78 can sue and be sued for wrongful appropriation of property, 75 by statute can sue for injuries to personal estate, 76 by statute can sue for injuries to real estate, 77 action by, for severance of things from freehold, 78 liable by statute for injuries to real or personal estate, 78 Pair Comment: 480 — 488. See Defamation Palse Imprisonment: period of limitation, 165 defined, 386 relation of this injury to that of assault, 383 actual force not needed, 386 deprivation of liberty must be complete, 383 continuance of imprisonment, 387 remedy of habeas corpus, 388 distinguished from malicious prosecution, 388 by agency of ministerial oflScers, 390 arrest on suspicion of crime, 391 by constable, 391 by other persons, 391 reasonable and probable cause, 391 burden of proof, 391 a question for the judge, 391 s. 37 578 INDKX. Father: not liable for tort of cMld, 69 unless child is acting as his father's servant, 69, 93 or unless the father has been guilty of personal negli- gence, 69 no right of action in respect of child, 438 unless relation of master and servant exists, 438 remedies for recovery of child, 438 action for seduction of daughter, 439 — 444. See Seduction action for physical harm to child, 439 action for taking child away from father, 438 action for inducing child to leave father, 444 action for causing death of child, 378, 380 Feloiiious Tobts: right of action suspended until prosecution, 157 action will be stayed, 158 rule applies only to actions against felon himself, 158 no such rule in case of misdemeanours, 158 rule not applicable to actions under Fatal Accidents Act, 159 action lies if prosecution has become impossible, 159 Felony: arrest on suspicion of, 17, 391 prevention of, by force, 168 Finder op Goods: his title, 355 n. 19. (See Oonveesion Fire: liability for, 223, 246 governed by statute of George III., 245 this statute declaratory of the common law, 246 rule in Rylands v. Fletcher applies to fire in the same way as to other dangerous things, 223 no liability if no negligence on part of any one, 246, 247 fire caused by locomotive engines, 24?, 249 fire lit by trespassers, 230 quaere whether any duty tO' extinguish fires lit by other persons, 249 summary of law as to, 250 Eailway Fires Act, 1905. ..242 n. 2, 249 n. 15 Fishing Rights: 266 FoROiBLE Entry: assault or damage incidental, 172 a criminal offence, 171 INDEX. 579 FoKCiBLE Entry — continued use of threats amounts to force, 171 need not amount to personal violence, 171 peaceable entry followed by forcible ejectment, 172 not a civil injury, 172 PoECiBLB Taking of Chattels: a permissible form of self-help, 173 in what cases this right exists, 173 ■what force may be used, 173 entry on land for purpose of taking chattels, 174 no right to retake chattels not recoverable by legal proceed- ings, 174 FOBEIGN SOVEBEIGNS: not liable in actions of tort, 59 even though resident in British dominions, 69 even though act done in private capacity, 59 who are, within meaning of this rule, 59 FOBEIQN TOETS: no action lies for any injury to land outside England, 165 aliter in cases of contrsict or trust, 165 for other foreign torts an action lies in England, 165 no action lies unless act unlawful where done, 166 but need not be actionable where done, 166 no action lies unless act is a tort by the law of England, 166 Eeaud : liability of minors for, 68 liability of married women for, 73 liability of master for fraud of servant, 99 concealed fraud and limitation of actions, 154 fraudulent representation of safety of chattels, 4J8 See Deceit PuNEEAL Expenses: 379, 381 Gratuitous Conteact: duty to use care, 403, 417 distinguished from a license, 403 loan or gift of dangerous chattels, 415 gratuitous contract of service distinguished, 417 Habeas Coepus: 388, 438 37 (2) 580 INDEX. Highway: 310 trespass by use of, for unlawful purpose, 186, 187, 310 ownership of, 186, 189 n. 20, 310 ■abuse of highway a trespass, 186, 187, 310 nuisances in, to adjoining land, 238 nature of, 309, 310 kinds of injuries in respect of, 310 nuisance on highway to adjoining land, 310 disturbance of right of access to highway, 311 nuisance to a highway, 312 right to abate, ■ 177 a misdemeanour, 312 kinds of, 312 injunction to prevent, 313 actionable on proof of special damage to individuals, 313 what damage is suflBcient, 313, 314 quaere as to injury to business by obstructing highway, 314 dedication of, subject to existing dangers, 313 absolute liability for danger to, 315 alitor with ordinary use of highway, 239, 317 no liability if no negligence on the part of any one, 317 liability for collateral negligence, 318 repair of highway, 319 — 321 no action against local authority for failure to repair, 319 aliter in case of misfeasance, 319, 320 history of rule, 319 liability for non-repair of artificial structure in the highway, 320 no liability for non-repair of bridge, 321 artificial structure dangerous because of non-repair of road, 321 liability for non-repair in the case of express statutory obliga- tion to repair, 319, 320 quaere as to implied obligation in certain cases, 322 n. 16 liability for dangerous excavation adjoining highway, 405 n. 3 escape of animals from, 239, 432 Husband: cannot sue his wife for a tort, 71 may be sued by her in certain cases, 71 liable for wife's torts, 71 wife must be joined as defendant, 72 wife's separate property not liable in such an action, 72 but separate claim may be made against wife, 72 judgment must be obtained before termination of marriage, 72 efiect of judicial separation, 73 INDEX. 581 Husband — continued i not liable for wife's fraud in connection with contract, 73 nor for antenuptial torts, 73 nor for breaches of trust, 73 husband's right of action in respect of his wife, 446 — 448 physical harm to wife, 446 causing death of wife, 446 inducing wife to leave husband, 447 adultery, 447 wife's right of action in respect of husband, 448 Immaterial Peoperty: action for injuries to, 558 LMPOUNDnSTG : of chattels distrained, 180 Inadvertence: its nature, 22 distinguished from negligence, 22 Indemnity: as between joint wrongdoers, 84 — 86 Independent Conteactoe: distinguished from servant, 113 liability for acts of, 113, 115 employed to do illegal acts, 114 negligently, 114 to do lawful acts, 115 interference with support, 116 dangers in highway, 116 general principles, 118, 119 Infants. See Minoes and Child Injunctions: nature of, 120 prohibitory and mandatory, 144 interlocutory and perpetual, 145 in quia timet actions, 145 if obedience impracticable, 146 against publication of libel, 146 n. 4 originally issued only by Court of Chancery, 146 now issued by all divisions of the High Court, 146 damages in lieu of, under Lord Cairns' Act, 140, 146, 147, 151 582 INDEX. Injunctions — continued jurisdiction to grant injunctions discretionary, 146 granted as of course unless special reason for refusing, 147 reasons for refusing injunction, 148 smallness of injury, 148 conduct of parties, 149 delay, wlietlier a bar to, 150 n. 17 not refused merely because of loss that will be caused to the defendant or the public, 150 Injurious Falsehood: distinguished from deceit, 504 distinguished from defamation, 504 examples of, 504 slander of title, 505 slander of goods, 505 conditions of liability, 506 malice required, 506 damage required, 606 See Passing Opp Innkeepee: action against, for refusal to receive guest, 558 Innuendo: 457. See Depamation Insanity. See Lunatic Insolvency: imputation of, defamatory, 452 Insult: not a cause of action, 451 Intention, Wrongful: a form of mens rea, 14 its relation to malioe, 18 distinguished from negligence, 21 constructive, 126 n. 3 Inteepleadee : 358 Intimidation: of the plaintiff himself, 516 of other persons to the plaintiff's injury, 517 — 527 by threats of illegal action, 518 by way of conspiracy, 519 — 524 justification for, 520 without conspiracy, 521 — 525 no liability in case of trade disputes, 521, 526 INDEX. • 583 Joindee: of several wrongdoers in same action, 81 w. 9 of persons jointly injured, 86 formerly necessary, 86 aliter now, unless Court otherwise orders, 87 release by one, 87 Joint Wbonqdoees: jointly and severally responsible, 78 who are, 79 agency, 79 vicarious liability, 79 common action, 80 quaere as to joint liability of co-owners of land, 79 n. 1 distinguished from persons whose independent acts cause the same damage, 80, 81 n. 9 released by judgment against one of them, 83 released by release of one of them, 83 aliter with covenant not to sue, 83 eflect of release with reservation of rights, 84 contribution between, 84 — 86 indemnity as between, 84 — 86 damages cannot be apportioned, 81 measure of, 82 See CONTBIBUTION Judges: liability of, 528. See Ogtjhts of Justice Judicial Process: malicious, 534 — 544. See Malicious Peosecution erroneous process, 528 — 533, 544 — 546 liability of judicial officers for, 528—533. See Courts OP Justice liability of parties for, 544 — 546 . none for procuring erroneous decision, 389, 544 or for acting therein, 389, 545 aliter with execution of invalid process, 390, 546 void and voidable process distinguished, 546 voidable process a justification until set aside, 546 Jus Teeth: in trespass, 192 in ejectment, 203 in trover, 354—357 584 INDEX. Justices of the Peace: liability of, 630. See Ooubts op Justice Justification; 464. See Defamation Land: wrongful damage to, 323 Landlord : liability for a nuisance, 253 — 267 commonly not liable, 263 liable if he bas created nuisance, 254 liable if he authorises tenant to create or continue nuisance, 254 liable if nuisance due to Ms breach of covenant with tenant, 255 liable if premises let with existing nuisance, 268 tenant not exempted by landlord's covenant, 266 n. 14 effect of landlord's knowledge of nuisance, 256 n. 19 summary of the law, 256 liability in case of tenancy from year to year, 256 n. 19 liability of, to persons entering on premises, 412 — 414 in general no liability, 412 exception in case of furnished house, 412 duty to warn of danger actually known, 412 landlord retaining part of premises in his occupation, 413 effect of covenant to repair, 414 liability for negligent acts of misfeasance, 414 Lease: distinguished from servitude, 258 See Landloed Liability: distinction between civil and criminal, 1 general conditions of, 8 — 14 absolute, 14 — 18. See Absolute Liability for accident, 15 for mistake, 16 vicarious, 17, 79. See Vicarious Liability Libel. See Defamation Licenses: defined, 259, 267 kinds of, 267 exclusive or non-exclusive, 267 distinguished from easements and profits, 267 INDEX. 585 Licenses — continued run with land in equity, 268 remedies of a licensee for disturbance, 269 injunction, 269 damages, 269 no remedy at law against stranger, 269, 270 n. 10 rule in Wood v. Lezdbitter, 270—273 premature revocation of license, 271 effectual though illegal, 271 action for breach of contract, 271 licenses specifically enforceable cannot be revoked, 272 licensee on revocation may remove property, 273 not bound to undo things lawfully done, 273 irrevocable if coupled with an interest, 273 Light, Easement of: not a natural easement, 285 may be acquired by grant or prescription, 285 only in respect of a building, 285 disturbance of, when actionable, 285 analogy with nuisance, 286 circumstances affecting liability, 287 amount of light formerly received, 287 use made of dominant building, 288 structure of dominant building, 289 effect of structural alterations, 290 residuary light from other windows, 291 angle of obstruction, 291 Limitation of Actions: general period of six years, 152 time begins to run from date of complete cause of action, 152 in case of continuing injuries, 152 time does not run if no person capable of suing or being sued, 163 time does not run if plaintiff a minor, 153 or a lunatic, 153 or if defendant absent from the realm, 153 disability arising after time has commenced to run is inopera- tive, 154 absence of plaintiff does not prevent the running of the statute, 153 n. 7 temporary presemce of defendant, 163 n. 7 concealed fraud, effect of, in preventing running of the statute, 154 quaere as to extent of application of this rule, 154 n. 11 586 INDEX. Limitation of Actions — continued concealed fraud, effect of, in preventing running of the statute — continued quaere as to begligence in failing to discover cause of action, 155 in case of conversion by a bailee, 359 special periods of limitation, 155 slander, 155 injuries to the person, 155 collisions at sea, 157 actions against public authorities, 166 for continuing injuries, 156 n. 7 statutory torts, 157 in trover, 359—362 in bailments, 359 under Patal Accidents Act, 380 Lunatic: liability of, for torts, 69 imputation of lunacy defamatory, 452 Maintenance : defined, 547 of civil proceedings only, 547 justifications for, 548 lavrful interest, 548 charily, 548 of defendant, 548 mere instigation of litigation not maintenance, 549 quaere as to distinction between commencement and continu- ance of litigation, 549 n. 7 quaere whether actual damage necessary, 549 n. 9 Malice : ambiguity of term, 18 wilful wrongdoing, 18 improper motive, 19 commonly irrelevant, 20, 520 exceptions, 20 in nuisance, 216 doctrine of implied malice in defamation, 468 n. in privileged defamation, 471 — 473. See Defamation in actions for injurious falsehood, 506 in intimidation and conspiracy, 520 in malicious prosecution, 542 in actions for inducing breach of contract, 551 in actions against Judges and Magistrates, 528 — 532 malicious refusal to exercise statutory powers, 555 n. 11 INDEX. 587 Malicious Pbosecution: for what kinds of malicious process an action will lie, 534 criminal proceedings, 534 bankruptcy proceedings, 535 liquidation proceedings, 535 arrest, 535 execution against property, 535 not for an ordinary action, 536 conditions of liability, 536 institution of proceedings, 637 want of reasonable and probable cause, 537 — 540 defined, 537 there must be genuine belief that proceeding justified, 538 and reasonable judgment and caje, 539 history of term probable cause, 538 n. 15 burden of proof, 538 functions of Judge and jury, 639, 540 reasonable cause not a question for the jury, 539 n. 20 opinion of counsel, 539 n. 19 mistake of law, 539 n. 19 malice, 541 — 643 defined, 641 burden of proof, 542 evidence of, 542 want of reasonable cause is evidence of, 542 termination of proceedings in plaintiff's favour, 543 when required, 543 Maeket Overt: sale in, 346 Maebied Woman: right to sue husband for tort, 71 cannot be sued by husband, 71 liability to third persons, 71 may be sued jointly with husband, 71 liability of husband for torts of, 71, 72 injuries to husband in respect of, 446 adultery with, 447 injuries to, in respect of her husband, 448 right of action for death of husband, 380, 448 See Husband Masieb: right of action for injury to servant, 439 — 446 seduction of servant, 439 — 444 other injuries, 444 •588 INDEX. Master — continued inducing servant to leave master, 445, 550 — 552 employing servant who has wrongfully left his master, 445 n. 9 See Employers' Liability Maxims : Adversus extraneos vitiosa possessio prodesse solet, 192 Actio personalis moritur cum persona, 73 — 78, 378 Actus non facit reum nisi mens sit rea, 12 Cujus est solum ejus est usque ad coelum, 190 De minimis non curat lex, 215 Imperitia culpae adnumeratur, 26 In pari delicto potior est conditio defendentis, 37 Qui facit per alium facit per se, 79, 87, 92, 532 n. 13 Qui prior est tempore potior est jure, 203 Ees ipsa loquitur, 33 Sic utere tuo ut alienum non laedas, 212 Vigilantibus non dormientibus jura subveniunt, 37 Volenti non fit injuria, 51 — 55, 219, 406 Menace. See Intimidation Mens Eea: commonly a condition of liability, 12 reason for this requirement, 12 exceptions to rule, 14, 15 Mental Suffering: not a cause of action, 8, 385 Mesne Profits: nature of action for, 205 claim for, may be joined with ejectment, 205 action for, a variety of trespass quare clausuTn fregit, 205 based on trespass by relation, 205 re-entry a condition precedent, unless joined with ejectment, 206 measure of damages, 207 successive occupiers, 207 improvements made by defendant, 208 Minerals : wrongful extraction of, measure of damages, 200 subsidence caused by extraction of, 277, 278 Mines: liability of mine-owner for causing escape of water into adjoining mine, 228 See Support INDEX. 589 MiNOES: liabiUty of, 66—69 no exemption from liability for torts, 66 youth of defendant may disprove negligence or wrongful intent, 66 liable for torts although also breaches of contract, 67 except for a fraud in connection with a contract, 68 equitable obligation of restitution, 68 liability of, as bailees, 67 liability of, as purchasers of goods, 67 father not liable for torts of children, 69 unless they act as his servants, 69 or unless he is personally negligent, 69 MlSEEPBESENTATION. See DECEIT Mistake : inevitable, 16 liability for, 16 distinguished from accident, 16 in what cases a defence, 17 Motive. See Malice Name: use of another's name, 508 deceptive use of one's own name, 513 See Passing Off Negligence: defined, 22 n. distinguished from wrongful intent, 21 distinguished from inadvertence, 22 subjective and objective uses of term, 23 objective theory of, discussed, 23 duty of care, 25 negHgenoe and want of skill, 26 standard of care, 27 greatest not required, 27 according to defendant's judgment, 27 reasonable, 28 degrees of negligence, 29 gross negligence, 29 590 INDEX. Negligence — continued proof of, 30—35 burden of proof on plaintiff, 30 reasonable evidence for jury, 30 — 33 res ipsa loquitur, 33 contributory, 36 — 60. See Contbibtjtoey Negligence of cliildren, 39, 67 in trespass to land, 186 in nuisance, 218 in causing danger to highway, 238 in disturbance of right of support, 276 collateral, 318 of bailee in care of chattels, 33, 345 in. performance of gratuitous contract, 403, 417 of possessor of dangerous chattels, 392 in delivery of dangerous chattels, 415 — 424. 8ee Dangeeous Chattels in publishing defamatory statements, 462 in making false representations, 496 — 602. See Deceit in instituting criminal prosecution, 534 — 536 in performance of statutory duty, 555 in custody of animals. See Animals of a servant. See Employees' Liability in custody of fire. See Fire of owner of dangerous premises. See Landloed in exercise of statutory authority. See Statutoby Authoeity of occupier of premises. See Occupiee of Peemises in allowing escape of dangerous things. See Bylands v. Fletcher Negotiable Instrument: conversion of, 346 Neevous Shock: illness caused by, actionable, 384 Nuisance : abatement of, 175 — 178. See Abatement of Nuisance public and private, 209 private nuisance, distinguished from disturbance of servitudes, 210 examples of, 210 n. 4 origin of term, 210 n. 3 defined, 210 commonly a continuiag injury, 211 not necessarily on defendant's land, 212 INDEX. 591 Nuisance — continued who can sue for, 212 occupier of lajid, 212 reversioner, 212 not other persons, 212 distinguished from trespass, 213 no nuisance without damage, 214 causing discomfort or inconvenience, 215 must not be trifling, 215 standard of comfort, 215 varies with locality, 215 temporary nuisance, 216 malicious nuisance, 216' prospective damage not suflScient, 217 damage or discomfort due to abnormal conditions, 217 no defence that plaintiff came to nuisance, 219 no defence that nuisajioe a public benefit, 219 no defence that nuisance is in suitable place, 219 no defence that care taken to prevent nuisance, 219 no defence that defendant making reasonable use of his land, 220 nuisances due to contributory acts of several persons, 220 absolute liability for escape of dangerous things. See Eylands V. Pletcheb in a highway, 238 absolute liability for, 238 liabiliiy between co-users, 239 legalised by prescription, 240 aliter with public nuisance, 241 legalised by statute, 241. See Statutoey Authohity who is liable for a nuisance, 250 — 257 occupier liable for all nuisances on his land, 260 even though existing before he became occupier, 251 when not created by, 252 necessity of notice to occupier in certain cases, 252 n. 9 occupier not liable for subsidence due to prior excavations, 252 n. 10, 282 * occupier not liable for act of a stranger, 252 creator of nuisance liable although not in occupation, 252 whether liability ceases with occupation, 253 liability of landlord, 253—257. See Landlord OcotJPiBE OK Pbemises: liabiliiy for nuisance, 250—253. See Nuisance liability for injuries to persons entering, 393 — 415 592 INDEX. Occupier op Premises — continued duty to use reasonable care, 392 — 395 extends to chattels supplied for use on premiseSj 394 effect of plaintiff's knowledge of danger, 394, 398 not in itself a bar to action, 394 evidence of agreement to run risk, 398 evidence of contributory negUgenoe, 398 no danger existing, 398 . contractual obligations, 394 statutory obligations, 395 persons entering as of right, 395 by invitation, 395 liability on warranty of safety, 399 liability to bare licensees, 400 — 404 duty to disclose concealed dangers, 400 who is a bare licensee, 401 — -403 license distinguished from gratuitous contract of service, 403 duty to bare licensee after entry, 404 liability to, for negligence of servants, 404 when licensee is a child, 408 measure of duty towards, 410 distinguished from trespasser, 404, 409 liability to trespassers, 404 — 407. See Trespasser liability for injury done by dogs, 426, 433, 436 Owner op Premises. See Landlord Parent. See Father Partners: liable for each other's torts, 90 Passing Opp: nature of this injury, 507 its different forms, 607 trading under another's name, 508 use of another's trade name, 508 trade name defined, 508 descriptive name, 508 use of another's trade mark, 508 trade mark defined, 508 imitating get-up of another's goods, 509 distinguished from statutory actions for infringement, 609 fraudulent intent not necessary, 509 actual damage not necessary, 610 INDEX. 593 Passing Off — continued must be calculated to deceive, 510 remedies, injunction, damages, account of profits, 510 descriptive name may become trade name, 510 — 512 trade name may become descriptive, 512 deceptive use by a trader of Ms own name, 513 deception not amounting to passing off, 513 registered trade marks, 514 Patents: threats of action for infringement, 507 n. 14 Petition of Rioht: when it Hes, 56 not for a tort, 56 Pollution of Wateb: 305. See Water Eights Possession: forcible recovery or defence of, 168 — 174 necessary for action of trespass, 191 distinguished from use, 192 whether lodger has, 192 de facto, sufficient for trespass, 192 and ejectment, 192 action for recovery of possession of land, 202 — 204 necessary for action of nuisance, 212 or disturbance of servitudes, 262 de facto possession of servitudes, 262 right of immediate, necessary for trover, 352 de facto, sufficient for trover, 354 necessary for trespa,ss to chattels, 375 action for recovery of possession of chattels, 367 — 371 PossESSOEY Title to Land: in trespass to land, 191 in ejectment, 202 Possessory Title to Chattels: sufficient in trover, 354 — 357 measure of damages, 355 continuance of, 355 destruction of, 356 jus tertii, when pleadable, 357 payment of value to possessory owner no defence against right- ful owner, 357 S. 38 694 INDEX. Premises, Dangeeous. See Nuisance, Occupier op Premises, Land- lord Prescription: legalises nuisance, 240 aliter with public nuisance, 241 from what time it runs, 240 reversioner may sue to prevent acquisition of prescriptive rights, 303 n. 13, 323 Presumption: that a person intends the natural results of his acts, 126 n. 3 Principal: liability for torts of agent, 87 distinguished from an employer, 90 ratification of unauthorised act, 88 conditions of, 88 effects of, 90 Privilege: 466 — 487. See Defamation Profits: defined, 259, 266 right to water not a profit but an easement, 259 distinguished from easement, 266 may be in gross, 266 how created, 266 disturbance of, a tort, 266 Publication. See Defamation Public Bodies: liability of, 60 limitation of actions against, 156 Public Officials: liable for torts committed in their official capacity, 57 authority of the Orown no defence, 57 not liable for torts of their subordinates, 57, 96 aliter with public bodies, 57 not liable to aliens for acts of State, 58 Quasi-Torts: 5 Quia Timet Actions: 145, 152 n. 26 INDEX. 596 Eatification: conditions of, 88 when it can take place, 88 effects of, 88 makes principal liable, 88 justifies agent, 89 Eeasonable and Peobablb Oausb: for arrest, 391, 539 n. 20 for prosecution, 537 — 539. See Maliciotjs Peosecution Ee-entey on Land: permissible if peaceable, 171 illegal if forcible, 171. See Foecible Entby Belease: of one joint -wrongdoer releases the others, 83 distinguished from covenant not to sue, 83 effect of reservation of right to sue, 84 destroys right of election between causes of action in contract and tort, 164 Eemoteness of Damage: the general principle, 125 when damage is too remote, 125 when damage is natural and probable, 126 rule extends to consequences of illegal acts, 126 rule extends to cases of absolute liability, 126, 1^8, 217 question of remoteness of damage essentially the same as that of evidence of negligence, 128 mens rea, 127 various explanations of the rule, 129 probable damage caused in an improbable way, 129 alternative forms of damage, 130 whether this qixestion for the Judge or jury, 130 remoteness in law and in fact, 131 illustrative cases, 131 — 133 damage not too remote because of intervening wrongful act of a third person, 134 exceptions to rule of remoteness, when property at the risk of a wrongdoer, 134, 338 in trover, 338 in slander, 490 Eeplbvin: nature of remedy, 371 when available, 372 nature of judgment, 372 38 (2) 596 INDEX. Ees Ipsa Loqtjitue: 33. See Negligence Ebstitution op Peopeety, Specific: 121, 200, 367 — 371 Eesteictivb Oonteacts: nature of, 273 equitable servitudes, 273 run -with land in equity, 273 rule in Tulk v. Moxhay, 274 distinguished from negative easements, 274, 275 distinguished from positive contracts, 27S remedies for enforcement of, 275 Eeveesionaey Inteeest in Chattels: reversioner could not sue in trover, 352 remedy of reversioner for conversion, 352 remitter of reversioner to right of possession, 353 right of action for trespass to chattels, 376 See OoNVEESiON Eevbesionaey Inteeest in Land: right of action for disturbance of servitude, 262 injuries to, 323—327 waste, 324 action by reversioner against stranger, 324 reversionary interest must be affected, 325 temporary injury not enougli, 325 permanent and continuing injuries distinguished, 325 reversioner may sue to prevent prescriptive rights, 326 n. 13 diminution of value caused by fear of continuance of injury, 324 Eights: absolute and qualified, distinguished, 12 Eights of Way. See Highway ErpAEiAN Eights. See Water Eights Egad. See Highway EoMAN Law: as to degrees of negligence, 29 ra. 7 as to accessio, &c., 368 Eylands v. Fletcher: rule in Bylands v. Fletcher stated, 221 absolute liability for escape of dangerous things from land, 221 instances of rule, 221 — 223 origin of rule, 224 n. 10 applies only to occupiers, 224 INDEX. 597 Eylands v. Fletcher — continued remoteness of daanage, 224 natural and non-natxiral use of landj 225 no liability for things naturally on land, 225, 226 unless artificially accumulated, 226 or caused to escape, 227 liability as between adjoining mine-owners for escape of water,- 228 effect of consent of plaintiff, 229 no liability for act of stranger, 230, 231 who is a stranger, 231 no liability for act of God, 232—236 effect of statutory authority, 236 Sale of Goods: delay in delivery, goods at risk of person in default, 135 in market overt, 346 liability of seller for dangerous nature of goods, 416 SoiENTEK. See Animals Sedtjotion: master's right of action for seduction of servant, 439 actual loss of service necessary, 439 service must exist at time of seduction, 440 measure of damages, 440 knowledge of service not necessary, 441 kinds of service, 441 contractual, 441 de facto, 441 constructive, 442 concurrent service with two masters, 443 Sblf-Defencb: reasonable force may be used in self-defence, 168 or in defence of any other person, 168 force must not be more than necessary, 169 force must not be disproportionate to the injury to be pre- vented, 169 force not limited to passive defence, 169 Sbevant. See Employees' Liability and Master Servitudes: disturbance of servitudes a nuisance, 209 incidence of liability for disturbance, 262 598 INDEX. Servitudes — continued kinds of, 258 appurtenant and in gross, 268 distinguished from leases, 258 public and private, 259 legal and equitable, 259 easements and profits, 259 de facto servitudes, 262 See Easements, Peopits, Licenses, Eesteiotive Conteacts Seveeance: of chattels from land, 199 Sheeiff: liability of, 16, 197 Ships: collision between, 46 — 50 liability for accidents happening on, 415 Skill: want of, equivalent to negligence, 26 Slandee: 155, 449, 490 — 493. See Defamation Slandee of Goods: 505. See Injueious Palsehood Slandee of Title: 505. See Injueious Palsehood Solicitoe: liability of client for illegal acts of, 92 m. 3 soveeeign, foeeiqn. see poeeign soveeeigns Speoificatio : 368 Speing Guns: liability for injury by, 405 Statutes : 4 Ed. III. c. 7 (Executors), 76 5 Eich. II. St. 1, c. 8 (Porcible Entry), 171 21 James I. c. 16 (Limitation of Actions), 152, 153, 155 29 Charles 11. o. 3 (Statute of Prauds), 503 4 Anne, o. 16 (Limitation of Actions), 153 6 Anne, c. 31 ,(Pire), 245 7 Anne, c. 12 (Diplomatic Privileges), 60 11 Geo. II. c. 19, s. 19 (Distress for Eent), 197 14 Geo. III. c. 78 (Pire), 245, 246 7 & 8 Geo. IV. c. 18 (Spring Guns), 406 9 Geo. IV. 0. 14 (Lord Tenterden's Act), 503 1 & 2 Will. IV. c. 22 (Hackney Cabs), 92 3 & 4 Will. IV. c. 42 (Civil Procedure), 77, 78, 157, 367 3 & 4 Vict. c. 9 (Parliamentary Papers), 471 9 & 10 Vict. c. 93 (Patal Accidents Act, 1846)... 9, 74, 113, 136, 157, 159, 379—382 INDEX. 59^ Statutes — continued 11 & 12 Vict. c. 44 (Justices of the Peace), 530, 533 16 & 16 Vict. c. 76 (Common Law Procedure), 204, 205, 206, 328 17 & 18 Vict. c. 125 (Common Law Procedure), 368 19 & 20 Vict. c. 97 (Limitation of Actions), 153, 154 20 & 21 Vict. c. 85 (Matrimonial Causes), 73, 447 21 & 22 Vict. c. 27 (Lord Cairns' Act), 140, 146, 147 24 & 25 Vict. c. 97 (Malicious Damage), 18 24 & 25 Vict. c. 100 (Spring Guns; Assault), 384, 406 27 & 28 Vict. c. 95 (Fatal Accidents), 113, 380 28 & 29 Vict. c. 60 (Dogs), 433 36 & 37 Vict. c. 66 (Judicature Act), 48, 146, 161, 368 38 & 39 Viot. c. 86 (Conspiracy and Protection of Property), 518 43 & 44 Vict. c. 42 (Employers' Liability), 110, 113, 157 45 & 46 Vict. c. 75 (Married Women's Property), 71, 72, 73,, 154 46 & 47 Vict. c. 49 (Statute Law Eevision), 140 51 & 52 Vict. c. 43 (County Courts: Eeplevin), 372 51 & 52 Vict. c. 64 (Libel), 463, 464, 471, 488, 489 53 & 54 Vict. c. 39 (Partnership), 90 54 & 55 Vict. c. 51_ (Slander of Women), 492 56 & 57 Vict. c. 61 (Public Authorities Protection), 156 56 & 57 Vict. c. 71 (Sale of Goods), 135, 346, 416 5 Ed. VII. c. 11 (Eailway Fires), 242, 249 5 Ed. VII. c. 15 (Trade Marks), 509, 514 6 Ed. Vn. c. 32 (Dogs), 426, 427, 433, 436 5 Ed. VII. c. 47 (Trade Disputes), 65, 516, 519, 623, 626, 550,, 652 6 Ed. VII. c. 68 (Workmen's Compensation), 113 7 Ed. VII. c. 29 (Patents), 607 8 Ed. VII. c. 7 (Fatal Accidents), 382, 448 8 Ed. VII. c. 69 (Companies), 85, 496, 500 1 & 2 Geo. V. c. 27 (Protection of Animals), 180 1 & 2 Geo. V. c. 57 (Maritime Conventions), 50, 51, 157, 380' Statutory Authobity: effect of, in legalising nuisances, 236 extends to necessary consequences of thing authorised, 236, 242 absolute and conditional authority, 243 imperative or permissive, 243 does not include damage due to negligence, 237, 247 effect of, in respect of absolute liability, 237, 244, 245 600 INDEX. Statutory Duties, Breach of: prima fade actionable, 652 aliter if intention of Legislature difierent, 552 — 556 damage must be of kind contemplated by statute, 556 action excluded by statutory remedy, 656 whether liability absolute, 557 Street. See Highway Strike: whether an actionable wrong, 518 — 527 /See Intimidation Support: withdrawal of, whether a continuing injury, 139 n. 16, 142 of land by land a natural easement, 276 subjacent and lateral, 276 surrender of right of, 277 building has no natural right of support, 277 but such a right may be acquired, 277 disturbance of right of support, 278 actual damage necessary, 278 subsidence suflBcient damage, 279 limitation of actions, 278 new action for every new subsidence, 142, 278 how far liabiliiy depends on negligence, 279 vicarious liability for negligence of others, 280 occupier of land not liable for subsidence caused by pre- decessor in title, 139, 252 n. 10, 282 diminution of value through fear of future subsidence, 281 change of ownership between excavation and resulting subsidence, 252 n. 10, 282. no right to support of underground water, 280 aliter with quicksand and other semi-fluid substances, 281 measure of damages for withdrawal of support, 142, 281 disturbance of de facto support, 263, 281 Tender: effect of, in cases of distress damage feasant, 181 n. Tort : nature of, 1 — 7 a species of civil injury, 1 action for damages the essential remedy, 2 distinguished from breach of contract, 2 — 6 INDEX, 601 TOBT — con tin ued concurrence of tort and breach of contract, 3 — 6 quasi-torts, 6, 6 distinguished from breach of trust, 7 definition of, 7 torts and quasi-contracts, 5 derivation of the term, 7 n. actionable per se, or only on proof of damage, 12 felonious, 157 waiver of, 162—165 foreign, 165—167 Tbase Disputes: 521, 526, 552. See Intimidation Trade Names, Marks, and Dbsceiptions. See Passing Off Tbade Unions: liable at common law, 65 aliter by Trade Disputes Act, 68, 516. See Intimidation liability of officials of, 65 w. 3 Tbees: right to out, 175, 190 Tbespass: distinguished from case, 182 — 185 a direct forcible injury, 182 need not be intentional, 184 concurrent eaaiiao. in trespass and case, 184 n. 7 different meanings of term, 185 quare clausum fregtt, 186 ah initio, 194—197 by relation, 193, 206 continuing, 188 by animals. See Animals for mesne profits, 205 See Trespass to Land, Trespass to Chattels, Trespasser Tbespass ab initio: 194 — 197. See Trespass to Land Tbespass to Chattels: nature of the wrong, 374, 375 trespass and conversion, 375 actionable per se, 815 who can sue for, 375 when actionable at suit of reversioner, 376 measure of damages, 376 a. 39 602 INDEX. Trespass to Land: prevention of, by force, 169 right limited to occupiers, 169 use of property not sufficient, 170 request necessary, unless the trespass is forcible, 170 amount of force permissible, 170 molliter manus imposuit, 170 felonious trespass, 171 trespass coupled with assault, 170 de facto possession suificient, 169 ejectment of trespasser distinguished from forcible entry, 171 nature of, 186 trespass guare clausum fregit, 186 what amounts to entry on land, 186 actionable per se, 11, 186 trespass by mistake, 15, 186 trespass by accident not actionable without negligence, 186- trespass by abuse of right of entry, 186 trespass on highway, 186 trespass by remaining on land, 187 retaining possession of land no trespass, 188 trespass by placing things on land, 188 distinguished from nuisance, 188, 213 a continuing injury, 188 trespass of cattle, 188 n. 13, 223, 425, 432. See Animals trespass below the surface, 189 entry above the surface, whether a trespass, 190 trespass actionable only at suit of occupier, 191 use of land not sufficient without occupation, 192 de facto possession sufficient, 192 trespass by relation, 193 trespass as between co-owners, 194 trespass ah initio, 194 — 197 nature of rule, 194 not confined to trespass to land, 195 eitteots of rule, 196 limits of rule, 196 entry by authority of law, 196 abuse amounting to misfeasance, 196 in case of distress for rent, 197 abuse must relate to entire right of entry, 197 n. 8 measure of damages for, 197 — 200 not cost of reinstatement, 197 when plaintiff has possessory title only, 198 INDEX. 603 Trespass to Land — continued measure of damages for — continued when plaintifi has limited interest, 198 for profitable use without damage, 199 for wrongful severance of chattels, 199 distinguished from nuisance, 182, 188, 209 when actionable at suit of reversioner, 323 Trespasser: forcible ejection of, 169 — 171 occupier owes no duty to, in respect of safety of premises, 404 wilful injury to, is actionable, 405, 407 except by way of reasonable defence of property, 169, 405 duty of occupier to, after entry, 407 distinguished from bare licensee, 407 acquiescence of occupier, 407 liability of occupier when trespasser a child, 408 injury to, by dogs, 433 Trover. See Conversion Trust, Breach of: distinguished from tort, 7 by married woman, 73 Trustees : liable for acts of their servants, 96 Vicarious Liability: its nature, 17 of corporations, 60 of husbands, 71 of principals, 87 of partners, 90 of employers of servants, 90 — 119 Vis Major: 232 — 236. See Act of God in case of escape of animals, 433 Volenti Non Fit Injuria: the general principle, 51 in case of intentional harm, 51 in case of negligence, 51 in case of criminal offences, 51 consent distinguished from knowledge of danger, 52 604 INDEX. Volenti Non Pit Injuria — continued effect of knowledge^ 52 — 55 evidence of consent, 52 disproof of negligence, 53 evidence of contributory negligence, 53 difierent meanings of this maxim, 56 the basis of the rule of common employment, 105 Waives of Toets: option to sue for tort or for breach of contract implied in law, 162 when this option exists, 162 judgment on one cause of action destroys the other, 163 so also with accord and satisfaction or release, 164 aliter with a mere demand, 164 quaere as to commencement of an action, 165 Warehouseman : liability for mis-delivery, 345 n. 4 goods at his risk if kept in wrong place, 135. See Conversion Warranty op Safety: premises, 399 chattels, 415 Waste: 194, 324 Wateecouhsbs : artificial, rights in respect of, 308 n. 5 See Water Rights Water, Damage done by: absolute liability for escape of water, 221 gravitation of flood-water, 226 overflow of stream caused by silting or growth of weeds, 226 liability for causing escape of flood-water, 226 percolation of water due to artificial structure on land, 226 escape of water from one mine into another, 228 prevention of entrance of flood- water, 227 n. 8, 308 escape of water from upper into lower storey, 229 escape due to act of a stranger, 230 or to act of God, 232 See Nuisance, Eylands v. Pletcheb INDEX. 605 Water Eights: right of taking water an easement, 293 modes of disturbance, 293 abstraction, 293—304 right of riparian owner to continued flow, 293 riparian owner defined, 293 right against owner on whose land stream originates, 294 natural and artificial streams, 294 surface water not amounting to stream, 295 possible alternative rules, 295 abstraction for non-riparian use, 297 — 299 actionable without damage, 297 use without abstraction not actionable, 298 what are riparian uses, 298, 302 what is riparian land, 298 prescriptive rights of non-riparian user, 299 abstraction for riparian uses, 299 — 303 actionable if unreasonable, 299 ordinary and extraordinary use, 301 test of reasonableness, 301 necessity of damage, 301 what damage is sufficient, 301, 303 abstraction of underground water, 304 not actionable, 304 aliter if in defined channel, 304 percolation from a stream, 305 pollution of water, 305, 306 what amounts to pollution, 306 actionable without damage, 306 although water already polluted by other persons, 306 alteration of quality not amounting to pollution, 307 obstruction of a stream, 307, 308 actionable at suit of upper riparian owner, 308 protection against flood water lawful, 308 ordinary channel and flood-channel, 308 grant of water rights to non-riparian owners, 308 n. 5 Wipe. See Husband, Mabeied Woman LONDON: FEINTED BY C. F. BOWOKTH, 88, FETTER LANE, E.O.